Johnson v. International Harvester Co.

• Decision Date: 09 April 1980
• Docket Number: Civ. No. A3-79-224.
• Citation: 487 F. Supp. 1176
• Parties: Jean JOHNSON, as Surviving Spouse and Next Friend of the Heirs and Next of Kin of Jerry Dennis Johnson, Deceased, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY and United Truck and Body Company, Defendants.
• Court: U.S. District Court — District of South Dakota

487 F. Supp. 1176

Jean JOHNSON, as Surviving Spouse and Next Friend of the Heirs and Next of Kin of Jerry Dennis Johnson, Deceased, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY and United Truck and Body Company, Defendants.

Civ. No. A3-79-224.

United States District Court, D. North Dakota, Southeastern Division.

April 9, 1980.

James D. Cahill, Cahill, Gunhus, Grinnell, Jeffries & Klinger, Moorhead, Minn., for plaintiff; Harold A. Halgrimson, Fargo, N. D., of counsel.

Harry J. Pearce, Pearce, Anderson, Thames & Durick, Bismarck, N. D., for International Harvester Co.

Mart R. Vogel, Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, N. D., for United Truck & Body Co.

ORDER

BENSON, Chief Judge.

The above entitled diversity action for wrongful death arises from an incident wherein the plaintiff's decedent was killed when the tractor truck and trailer he was driving left the road and rolled over. Plaintiff asserts that this occurrence was due to the conduct of defendants in the modification of the vehicle, and that defendants are liable under theories of negligence and strict products liability. In addition to compensatory damages of over 1.5 million dollars, plaintiff seeks punitive damages of 25 million dollars. At issue now before the court is a motion by defendants pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings dismissing plaintiff's claim for punitive damages on the ground that such damages are not recoverable as a matter of law in actions brought under North Dakota's Wrongful Death Act. In response, plaintiff argues that the statute is a remedial statute which should be given a liberal interpretation and further has attempted to plead a common law cause of action for wrongful death. Alternatively, plaintiff contends that to deny the availability of punitive damages in wrongful death actions while allowing such damages in other tort actions violates the equal protection provisions of the United States and North Dakota Constitutions.

I. ACTIONS UNDER THE WRONGFUL DEATH STATUTE.

In diversity cases the federal court must apply the law of the state where the United States District Court is located. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Carson v. National Bank of Commerce Trust & Savings, 356 F.Supp. 811, 813 (D.Neb.1973), aff'd, 501 F.2d 1082 (8th Cir. 1974). Chapter 32-21 N.D.C.C. provides a cause of action for wrongful death. Section 32-21-02 provides:

In an action brought under the provisions of this chapter, the jury shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery.

The issue as to whether this section allows for punitive damages has been considered by the North Dakota Supreme Court and the holding of that court is adverse to the position now being urged on this court by the plaintiff. Punitive damages cannot be recovered under the North Dakota wrongful death statute. See Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747, 750 (1937); Dahl v. North American Creameries, 61 N.W.2d 916, 922 (N.D.1953); Johnson v. American Aviation Corporation, 64 F.R.D. 435, 437 (D.N.D.1974).

II. COMMON LAW ACTION FOR WRONGFUL DEATH.

Plaintiff's attempt to avoid the statutory omission of punitive damages by seeking such damages under a common law remedy for wrongful death is also blocked by a prior holding of the North Dakota Supreme Court. In Harshman v. Northern Pac. Ry. Co., 14 N.D. 69, 103 N.W. 412 at 413 (1905), the court held "whatever right of recovery exists for injuries caused by the negligent killing of another is created by legislative authority only." (emphasis added). Therefore, plaintiff cannot claim a common law remedy where none exists in order to avoid limitations imposed by the wrongful death statute. See Jirsa v. Ice, 88 S.D. 209, 217 N.W.2d 465, 467 (1974).

Harshman has not been overruled, nor has any subsequent case cast doubt upon its continued validity.¹ To the contrary, more recent cases have restated, at least in dictum, the identical principle. See Armstrong v. Miller, 200 N.W.2d 282, 284 (N.D. 1972); Dahl v. North American Creameries, supra; Hyyti v. Smith, supra. Furthermore, Harshman appears to be in accord with the law in the surrounding jurisdictions of Iowa, Michigan, Minnesota and Wisconsin. See Egan v. Naylar, 208 N.W.2d 915, 917 (Iowa 1973); Lompre v. Venetjoki, 63 Mich.App. 265, 234 N.W.2d 664, 666 (1975); Beck v. Groe, 245 Minn. 28, 70 N.W.2d 886, 891-92 (1955); Jirsa v. Ice, supra; Krantz v. Harris, 40 Wis.2d 709, 162 N.W.2d 628, 630 (1968).

If the holding of Harshman is to be changed, it must come from the North Dakota Supreme Court or the legislature. Plaintiff cannot recover in North Dakota on either a pecuniary or a punitive damage claim grounded on a common law cause of action in a wrongful death case.

III. CONSTITUTIONAL ISSUES.

A. Federal Constitution.

Plaintiff argues that the state wrongful death statute violates the equal protection provisions of the United States and North Dakota Constitutions by discriminating against wrongful death claimants in favor of personal injury and property damage plaintiffs, who, pursuant to N.D.C.C. § 32-03-07, are permitted to recover punitive damages.²

Courts, in testing state laws against the Federal Equal Protection Clause contained in the fourteenth amendment, have generally applied one of three standards of review. When a "fundamental interest," see e. g., Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972) (right to vote), or a "suspect classification," see e. g., Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971) (alienage), is involved, courts have employed strict scrutiny to determine whether the classification meets a compelling state interest. Statutes which discriminate on the basis of gender, a quasi-suspect classification, must meet an intermediate standard of review, i. e., "serve important governmental objectives and must be substantially related to achievement of those objectives." Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 (1979). When, however, the challenged statute does not involve a suspect classification or a fundamental right, it is seen as only an economic regulation and the standard of review is a minimal rational basis standard, i. e., is it "rationally related to furthering a legitimate state interest." Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). See Duke Power Co. v. Carolina Env. Study Gp., 438 U.S. 59, 83-84, 98 S.Ct. 2620, 2636, 57 L.Ed.2d 595 (1978) (statute imposing limit on tort liability for nuclear accidents judged on rational basis standard).

This minimum standard of review has been described as follows:

The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts may be conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) (Emphasis added). See also Parham v. Hughes, 441 U.S. 347, 350, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269, 274 (1979).

Plaintiff urges the court to apply the strict scrutiny standard of review in this case. She argues that under the fourteenth amendment there is a fundamental right to life and when punitive damages are unavailable in wrongful death actions, it encourages tortfeasors to take life. This argument has little weight. There is a fundamental right to life but "the purpose of the wrongful death statute is to provide compensation for the injury resulting to heirs at law of the deceased from the death." Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 121 N.W. 70 at 71 (1909).

The criminal justice system exists to deter the taking of life and provides a much greater deterrent than a punitive damage award to heirs of a decedent against a guilty party, which award under most circumstances involving homicide would likely be difficult to collect. Furthermore, it appears there is not even a fundamental right to a statutory entitlement to sue for wrongful death. See Parham v. Hughes, 441 U.S. at 358 n.12, 99 S.Ct. at 1749 n.12, 60 L.Ed. at 279 n.12. It follows that there is no fundamental right to recover punitive damages and the applicable standard of review in the case before the court is the rational basis standard.

The rational basis standard was applied in Cyr v. B. Offen & Co., Inc., 501 F.2d 1145 (1st Cir. 1974), wherein plaintiffs raised an equal protection challenge to the limitation of damages that could be recovered in a wrongful death action under New Hampshire law. The court in addressing the issue, stated as follows:

But it is clear that the legislature has, in granting a right to recover which did not exist at common law, made a rational distinction between damages that go to the injured party himself and damages that go to his estate. Not only is the plaintiff a different party but there is another ground for legitimate distinction, the element of damages. . . . "Damages for injuries . . . are restricted within definite limits established by the common law . . . Recovery for injuries causing death, for the benefit of survivors, however, suggests more speculative elements of damage . . .."

501 F.2d at 1148-49 n.2.

New Hampshire, like North Dakota, has provided a statutory remedy for damages arising out of wrongful death and the rationale of Cyr is applicable here. Heirs at law of a person who has died as a result of wrongful injuries are treated differently than the injured person would have been treated had that person recovered from his or her injuries. The heirs may recover damages proportionate...