Miller Pipeline Corp. v. Broeker, 2-682A163

Citation460 N.E.2d 177
Decision Date27 February 1984
Docket NumberNo. 2-682A163,2-682A163
PartiesMILLER PIPELINE CORPORATION, Appellant (Defendant Below), v. Delmar BROEKER and Barbara Broeker, Appellees (Plaintiffs Below).
CourtCourt of Appeals of Indiana

Joseph M. Dietz, Rick D. Meils, Meils, Zink, Thompson, Page & Dietz, Indianapolis, for appellant.

Louis Buddy Yosha, Teresa L. Todd, Yosha & Cline, Indianapolis, for appellees.


This appeal seeks reversal of a jury award of punitive damages for Delmar Broeker (Broeker) and against Miller Pipeline Corporation (Miller Pipeline). 1 On April 12, 1979, Broeker was injured when his vehicle was rear-ended by a truck driven by James Bartrum (Bartrum), an employee of Miller Pipeline. Broeker filed suit against Bartrum and Miller Pipeline for damages. 2 An amended complaint added a request for punitive damages. The jury awarded Broeker $50,000 in compensatory damages and $75,000 in punitive damages. Miller Pipeline does not challenge the award for compensatory damages. It presents only the following issue for review:

Was there sufficient evidence to support the trial court's submission of the punitive damage issue to the jury and to support the jury's verdict awarding such damages? 3

Upon examining the evidence and the arguments presented by counsel, we restate the issue as follows:

When does heedless or reckless disregard of the consequences or rights of others imply malice or the state of mind necessary to justify an award of punitive damages?

Examining the evidence in a light most favorable to the judgment, we find that on April 12, 1979, at approximately 7:00 A.M., Broeker, driving a 1976 Dodge van, was stopped for a traffic signal at an intersection in Marion County, Indiana. He sustained back injuries when a truck owned by Miller Pipeline and driven by Bartrum, an employee of Miller Pipeline, struck the rear of the van when the brakes on the truck failed. The truck was pulling a 2,000 pound air compressor at the time.

Larry Bilbrey (Bilbrey), another employee of Miller Pipeline, was a passenger in the truck at the time of the collision. Both Bartrum and Bilbrey had been intermittently driving the particular company truck involved in the accident for ten days. During that entire time, the red brake warning light was lighted. Apparently, the warning light had also been on at previous times. In addition, Bartrum and Bilbrey had experienced difficulty with the brakes. There was usually no problem in the morning hours, but by mid-afternoon, the brakes had to be pumped several times before the truck could be stopped. On several occasions, the brakes had gone completely to the floor.

Realizing that this was dangerous, Bartrum reported the problem to his foreman, Paul Groves (Groves). Groves told Bartrum that it should be "taken care of," but he did not give Bartrum any specific instructions, nor did he ever check thereafter to verify that the problem had been corrected. On the day preceding the collision, or possibly the morning of the accident, Bilbrey and Bartrum took the truck to the Miller Pipeline maintenance department, where they reported the brake problem to a mechanic.

One of Miller Pipeline's mechanics inspected the brake fluid level in the master cylinder and checked the pedal for pressure. This took approximately ten minutes. The mechanic determined that the fluid level was sufficient and the truck had brakes at that moment. No repairs were done. Despite the fact that the brake warning light was still on and other company trucks may have been available for use, Bartrum went back out on the road with instructions from the mechanic to "be careful." William Wright, a witness for Broeker, testified that the brake defects responsible for the collision were not sudden occurrences and could have been discovered prior to the accident if the mechanic had done a more thorough inspection.

At the time of the collision, Miller Pipeline did not keep written maintenance records. 4 If employees discovered a problem with a vehicle, they were to bring it into the maintenance department for repair. Neither the problem nor the repairs done were recorded.

Miller Pipeline's maintenance department, which consisted of seven or eight mechanics, was responsible for maintenance of all vehicles and equipment. The department conducted yearly vehicle inspections as required by law, but there was no other regular procedure for preventative safety inspections. Most trucks, however, were examined during the winter months when business was slow. No logs were kept to indicate what work had been done or which vehicle had been inspected. Nor were there any procedures to ensure that all vehicles were inspected or to establish what an inspection would entail.

Miller Pipeline argues that an award of punitive damages is justified only if there was some evidence that its wrongful conduct was intentional and malicious. Broeker, on the other hand, maintains that a showing of malice, ill will, or intentional wrongdoing is not necessary; rather, punitive damages may be imposed if Miller Pipeline acted willfully in an abusive, wanton or oppressive manner in heedless disregard of the consequences.

Broeker relies on the fact that in many Indiana decisions, the courts have described the conduct necessary to support punitive damages as that which is malicious, oppressive, or in heedless disregard of the consequences. See Sexton v. Meridian Mutual Ins. Co. (1st Dist.1975) 166 Ind.App. 529, 337 N.E.2d 527; Lou Leventhal Auto Co., Inc. v. Munns (1st Dist.1975) 164 Ind.App. 368, 328 N.E.2d 734.

He stresses the fact that the term "heedless disregard of the consequences" is used in the disjunctive. Moreover, he points out that some cases have used the term without reference to other descriptive words. 5

As Miller Pipeline points out, our courts have previously addressed this precise issue. In Hibschman Pontiac, Inc. v. Batchelor (3rd Dist.1976) Ind.App., 340 N.E.2d 377, Judge Garrard, in an oft-cited concurring opinion, discussed the issue. He explained that although the words "heedless disregard of the consequences" have been used in the disjunctive as well as the conjunctive, that language was intended to describe conduct rather than define it. Id. at 384. He stated "[A]t the core of these descriptions is a consideration of the quality of the actor's conduct that characterizes it as reprehensible. It embodies a consciousness of intended or probable effect calculated to unlawfully injure the personal safety or property rights of others. In some instances it may consist of the conscious desire to maximize rather than mitigate the amount of injury suffered.

If one were to select a single word or term to describe this essence, it would be "malice." To warrant punitive damages the tort complained of must be committed maliciously. The malice may be actual or constructive. Actual malice may be express or implied." Id. at 385 (footnotes omitted) (Emphasis supplied.) 6

Elaboration on the point was made in Prudential Ins. Co. v. Executive Estates (2d Dist.1977) 174 Ind.App. 674, 369 N.E.2d 1117. In that case, Prudential breached its duty to protect the mortgagor (appellee) when disbursing mortgage proceeds. This court determined that the trial court erred in instructing the jury that it could award punitive damages if they found Prudential's wrongful acts had been committed in "a willful, or wanton disregard of the rights of" the mortgagor. Our court stated that "conduct supporting punitive damages must be of a more reprehensible character, e.g., malice, gross fraud, oppressive conduct, or heedless disregard of the consequences." Id. at 1131. After eliminating malice, gross fraud, or oppression in Prudential's actions, the court proceeded to determine whether conduct characterized as "heedless or reckless disregard of consequences" could justify imposition of punitive damages. The court noted that not only is the concept that a heedless disregard of consequences will support punitive damages "recognized in principle more than actuality," but also that the term is used "as an alternate to the description of more oppressive conduct." Id. at 1131. Like Judge Garrard, the Second District said: "When specific conduct has been characterized as a heedless or reckless disregard of consequences, the conduct would appear to be more accurately characterized as a conscious and intentional wrongdoing better described by such words as oppression or malice." Id. at 1131. The court concluded that no decision in Indiana had yet gone so far as to justify imposition of punitive damages solely on the basis of a concept of heedless disregard of the consequences. Something more than that state of mind is necessary. Rather the state of mind is more like "actual malice or a wantonness from which the law could imply malice." Id. at 1131. Accord, Harper v. Goodin (1st Dist.1980) Ind.App., 409 N.E.2d 1129; Peterson v. Culver Educational Foundation, supra, 402 N.E.2d 448; First Federal Savings & Loan Ass'n v. Mudgett (1st Dist.1979) Ind.App., 397 N.E.2d 1002; Grad v. Cross (1st Dist.1979) Ind.App., 395 N.E.2d 870.

Broeker contends, however, that these decisions are not controlling. First, he argues that Indiana courts have not addressed the issue in the context of the fact situation presented. Therefore, it would be more appropriate to look at Indiana decisions which discuss punitive damages in motor vehicle collisions and at decisions in other jurisdictions in which punitive damages were imposed in analogous circumstances. 7 Broeker additionally maintains that cases such as Hibschman Pontiac, Inc. v. Batchelor, supra, 340 N.E.2d 377, should not be interpreted as requiring a finding of malice to support an award of punitive damages. We do not agree with either argument.


Although the Indiana cases Broeker cites do discuss an award of punitive damages in motor vehicle...

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