Roach v. Jimmy D. Enterprises, Ltd.

• Decision Date: 27 February 1996
• Docket Number: No. 83534,83534
• Citation: 912 P.2d 852,1996 OK 26
• Parties: Marilyn I. ROACH and Joy Warren, individually; and Joy Warren as personal representative of the Estate of Jay D. Dillon, deceased; and Jerry Dillon, Plaintiffs, and Brenda Carr, individually; Brenda Carr, Guardian of the person and estate of Shane J. Dillon, a minor child; Brenda Carr, as surviving parent of Miranda J. Dillon, deceased; Brenda Carr, as surviving parent of Jodi Lee Dillon, deceased; Brenda Carr, as surviving parent of Katie Alison Dunsworth, deceased; Additional Plaintiffs/Petitioners, v. JIMMY D. ENTERPRISES, LTD. d/b/a Frisco Bar; James A. Dempewolf; John A. McClung d/b/a Pond Creek Country Club; and the Estate of Orville Virgil Rathjen, Defendants/Respondents.
• Court: Oklahoma Supreme Court

Page 852

912 P.2d 852

1996 OK 26

Marilyn I. ROACH and Joy Warren, individually; and Joy

Warren as personal representative of the Estate of

Jay D. Dillon, deceased; and Jerry

Dillon, Plaintiffs,

and

Brenda Carr, individually; Brenda Carr, Guardian of the

person and estate of Shane J. Dillon, a minor child; Brenda

Carr, as surviving parent of Miranda J. Dillon, deceased;

Brenda Carr, as surviving parent of Jodi Lee Dillon,

deceased; Brenda Carr, as surviving parent of Katie Alison

Dunsworth, deceased; Additional Plaintiffs/Petitioners, v. JIMMY D. ENTERPRISES, LTD. d/b/a Frisco Bar; James A.

Dempewolf; John A. McClung d/b/a Pond Creek

Country Club; and the Estate of Orville

Virgil Rathjen, Defendants/Respondents.

No. 83534.

Supreme Court of Oklahoma.

Feb. 27, 1996.

As Corrected March 4, 1996.

REVIEW OF CERTIFIED INTERLOCUTORY ORDER ENTERED IN THE DISTRICT COURT OF GARFIELD COUNTY; Honorable John W. Michael, District Judge.

This action was brought pursuant to 12 O.S. §§ 1053, 1055 for the wrongful death of three minor children. The trial judge entered judgment granting defendants' motion for summary judgment which asserted § 1055 did not provide for punitive damages in an action for wrongful death of a minor. The trial judge certified an order to this court refusing to submit the issue of punitive damages to the jury. We previously granted certiorari to review the interlocutory order. Held: An order that prohibits the recovery of punitive damages affects the substantial rights of a party and is an appropriate question for certified interlocutory certification. Title 12 O.S. 1991 §§ 1053-55 should be read in conjunction with one another and allow for the recovery of punitive damages where appropriate in an action for the wrongful death of a minor.

PETITION FOR CERTIORARI PREVIOUSLY GRANTED; CERTIFIED INTERLOCUTORY ORDER OF THE TRIAL COURT REVERSED AND REMANDED.

Alec McNaughton, Susan McNaughton, John M. Jameson, Norman, Edem, McNaughton & Wallace, Enid, for Plaintiffs Marilyn I. Roach, Joy Warren, Joy Warren as representative for the Estate of Jay D. Dillon, deceased, and Jerry Dillon.

Roger L. Johnston, Johnston & Hladik, Enid, Guardian Ad Litem for Shane Dillon.

Craig L. Box, Brian N. Lovell, Gungoll, Jackson, Collins, & Box, P.C., Enid, for Plaintiff Brenda Carr, Guardian of Shane Jay Dillon, and surviving parent of Miranda Jay Dillon, Jodi Lee Dillon and Katie Alison Dunsworth.

David D. Wilson, Tim Cain, Larry W. Dixon, Wilson, Cain & McAtee, Oklahoma City, for Defendant/Respondent Estate of Orville Rathjen.

Stephen Jones, Michael D. Roberts, Jones & Wyatt, Enid, for Defendants/Respondents, Jimmy D. Enterprises, Ltd., d/b/a Frisco Bar; James A. Dempewolf; and John A. McClung d/b/a Pond Creek Country Club.

John S. Thomas, Enid, Administrator of the Estate of Orville Virgil Rathjen, deceased.

LAVENDER, Justice.

The question presented for our determination is whether 12 O.S. 1991 §§ 1053-55 should be read in conjunction with one another and allow for the recovery of punitive damages where appropriate in an action for the wrongful death of a minor. We answer affirmatively.

I. FACTS and PROCEDURAL HISTORY

On October 4, 1992, Orville Virgil Rathjen (Rathjen) was driving his car north on a 4-lane divided highway in Enid, Oklahoma. A head-on collision occurred between the vehicle driven by Rathjen and one driven by Jay D. Dillon, (Dillon) in which four minor children were passengers. Three of the minor children were killed. Dillon died of his injuries. Plaintiff Brenda Carr, (Carr) mother of the children, brought a wrongful death action in her individual capacity and as the surviving parent of the three deceased children, against the estate of Rathjen and the owners of two drinking establishments that Rathjen had visited before the accident.

Plaintiffs filed petitions alleging 1) Rathjen was negligently driving his vehicle on the wrong side of the road, and this negligence was the proximate cause of Plaintiffs' damages; 2) Rathjen was intoxicated, having a blood alcohol content twice the legal limit; and 3) as a direct result of the collision, three minor children died, the other minor child was severely injured, and the driver of the vehicle, Dillon was fatally injured. All plaintiffs sought compensatory and punitive damages.

Jimmy D. Enterprises, Ltd. d/b/a FRISCO BAR, James A. Dempewolf, John A. Mcclung d/b/a Pond Creek Country Club, and the Estate of Orville Virgil Rathjen, (Defendants) filed motions for summary judgment claiming that since 12 O.S. 1991 § 1055 does not mention punitive damages as a type of recovery for the wrongful death of a minor,

plaintiffs are foreclosed from seeking punitive damages. Plaintiffs argued that § 1055 should be read in conjunction with 12 O.S. 1991 § 1053, which creates the cause of action for wrongful death and allows recovery of punitive damages. After a hearing, the trial court granted Defendants' motion and ruled the jury would not be instructed on the issue of punitive damages for the wrongful deaths of the minor children. The trial judge certified this order for immediate review pursuant to 12 O.S. 1992 § 952(b)(3). We granted certiorari to review the certified interlocutory order entered by the trial judge. Holding that the provisions of 12 O.S. 1991 §§ 1053-54 should be read together to include punitive damages for the wrongful death of a minor child, we reverse the certified interlocutory order of the trial court.

II. REVIEW OF A CERTIFIED INTERLOCUTORY ORDER

An interlocutory order is an order that is not final. The issuance of an interlocutory order does not prevent the parties to the order from trying the issues on the merits. An interlocutory order is not subject to appeal unless it falls within a class of interlocutory orders appealable as of right or is certified by the trial court for immediate review because it affects a substantial part of the merits of the controversy. DLB Energy Corp. v. Oklahoma Corporation Commission, 805 P.2d 657 (Okla.1991); see also Lambert v. Town of Stringtown, 834 P.2d 955 (Okla.1992) (holding an interlocutory order is not appealable unless a statutory exception such as appears in 12 O.S. 1991 §§ 952, or 953 applies).

Oklahoma Statute, title 12, Section 952(b)(3) provides in pertinent part:

(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: ... 3. An other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, the Supreme Court, in its discretion, may refuse to hear the appeal.

The definition of the word "merits" is well settled in case law. It signifies the real or substantial grounds of the action or of a defense. Practice, procedure, and evidence are not embraced by the term. Pierson v. Canupp, 754 P.2d 548, 551 (Okla.1988); Roark v. Shelter Mutual Ins. Co., 731 P.2d 389 (Okla.1986) (Opala, J. dissenting); Tidmore v. Fullman, 646 P.2d 1278 (Okla.1982) (Opala, J. dissenting).

In Thomas v. Cumberland Operating Co., 569 P.2d 974 (Okla.1977), this court addressed the question as to whether a statute passed subsequently to an injury which increased the amount recoverable in a wrongful death action created a new element of damages as distinguished from a new remedy to enforce an existing right. The case was certified to this court by the trial judge on a certified interlocutory appeal. Appellee asserted in Thomas that the statute was remedial and procedural because no new cause of action was created nor was there a change in the monetary amounts which could be recovered as damages. We said that:

Statutes and amendments imposing, removing or changing a monetary limitation on recovery for personal injuries or death are generally held to be prospective only. All rights of action for the death of a person must depend upon the status of the law at the time of the injury. A statute passed subsequent to the injury increasing the amount recoverable in a wrongful death action creates a new element of damages as distinguished from a new remedy to enforce an existing right. Statutory increases in damage limitations are changes in substantive rights and not mere remedial changes.

....

Under the great weight of authority, the measure and elements of damages are matters pertaining to the substance of the right and not to the remedy. We find that the statute in question is not purely procedural. On the contrary, it deals with substantive rights.... It creates and enlarges the substantive rights of the survivors in the wrongful death action of a minor child.

Id. at 976-77 (footnotes omitted). Accord Majors et al. v. Good et al., 832 P.2d 420 (Okla.1992).

The issue in Thomas was whether Okla.Stat. tit. 12, § 1055 (Supp.1975), should be applied retroactively. Section 1055 increased the benefits for wrongful death. This Court held that "[s]tatutory increases in damage limitations are changes in substantive rights and not mere remedial changes." Of no less effect are the statutory limitations on all recoverable damages. Limitations on damages, whether actual or punitive, can constitute changes in substantive rights.

Id. at 422 (footnotes omitted).

In Reynolds v. Porter, 760 P.2d 816 (Okla.1988), the trial court certified for this court's review an interlocutory order regarding the constitutionality of the statute's three-year proviso limiting the...