Smith v. Whitaker

• Decision Date: 15 June 1998
• Citation: 713 A.2d 20,313 N.J.Super. 165
• Parties: Harold E. SMITH, Executor of the Estate of Helen Robbins, Deceased, Plaintiff-Respondent/ Cross-Appellant, v. Alan L. WHITAKER, Jr., Defendant-Respondent, and Coastal Oil of New York, Inc., (incorrectly pled as Coastal Oil Company of New York, Inc., and formerly known as Belcher Company of New York, Inc.), Defendant-Appellant/ Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 165

313 N.J.Super. 165

713 A.2d 20

Harold E. SMITH, Executor of the Estate of Helen Robbins Deceased, Plaintiff-Respondent/ Cross-Appellant, v. Alan L. WHITAKER, Jr., Defendant-Respondent and Coastal Oil of New York, Inc., (incorrectly pled as Coastal Oil Company of New York, Inc., and formerly known as Belcher Company of New York, Inc.) Defendant-Appellant/ Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued April 22, 1998.

Decided June 15, 1998.

John C. Eastlack, Jr., Turnersville, for defendant-appellant/cross-respondent (Poplar & Eastlack, attorneys; Mr. Eastlack, on the brief).

Theodore E. Baker, Bridgeton, for plaintiff-respondent/cross-appellant (Lummis, Krell & Baker, attorneys; Mr. Baker, on the brief).

Before Judges KING, KESTIN and CUFF.

The opinion of the court was delivered by

KING, P.J.A.D.

I

This case involves claims for wrongful death and survival action damages. Plaintiff obtained a modest compensatory award of $40,178 (plus the net funeral and burial expenses of $3,939) under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and a punitive damage award of $1.25 million under the Survivor's Act, N.J.S.A. 2A:15-3. Defendant Coastal Oil of New York, Inc. (Coastal) challenges the punitive damage verdict on a number of grounds. We find no error and affirm.

II

On January 4, 1990 Helen V. Robbins (Mrs. Robbins), a widow, age 60, was driving her 1979 Lincoln Town Car north on County Route 649 in Commercial Township, Cumberland County. On the same day, Alan L. Whitaker, Jr. (Whitaker), an employee of Coastal, was driving a 36,000-pound Coastal oil truck south on County Route 633. The southbound lane of County Route 633 was governed by two yield signs where it intersects County Route 649. Due to maladjusted rear brakes, Whitaker was unable to stop the truck, even though he was "standing" on the brakes. The truck crossed the intersection, struck Mrs. Robbins' automobile, and overtopped it. Mrs. Robbins died in the accident.

Harold E. Smith, the nominal plaintiff, executor of Mrs. Robbins' estate, filed an action under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and under the Survivor's Act, N.J.S.A. 2A:15-3, against Whitaker and Coastal (collectively defendants). Smith died in 1995 and Grant Keller was appointed to replace him as plaintiff.

On its appeal, Coastal raises many issues, but primarily contends that, as a matter of law, plaintiff should not recover punitive damages. We disagree.

III

On June 8, 1990 the plaintiff executor filed this action under the Wrongful Death Act and Survivor's Act against defendants. Among other things, plaintiff claimed that the Coastal oil truck driven by Whitaker on January 4, 1990 had been "improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order." Plaintiff also alleged that "defendants ... either knew or should have known that the braking systems and braking mechanisms on the vehicle being operated by ... Whitaker ... were faulty, defective and not in proper working order, but ... defendants negligently, recklessly and with callous disregard for the safety of others, failed to take such proper steps as were necessary to adequately service, maintain and ensure that the braking mechanisms on said vehicle were in proper working order." Finally, plaintiff alleged that the "carelessness and recklessness" of defendants was "willful, wanton, and with knowledge of a high degree of probable harm to others such that the deliberate and wanton failure of the defendants ... should be assessed with punitive and exemplary damages."

On May 9, 1995 the first jury trial began. After all sides rested on May 11, 1995 they agreed to the judge's suggestion to select a second, different jury to decide the "punitive damage issue."

On May 12, 1995 the first jury was asked to answer this question: "What amount of money, if any, would fully and fairly compensate Lois Buttner as the survivor of Helen V. Robbins for the actual pecuniary or financial loss suffered by Lois Buttner due to the death?" The jurors (6-0) answered "$40,178" to this question. Following this, the judge molded the verdict by adding the net "funeral bill and expense" of $3,939, for a total judgment of $44,117. On May 30, 1995 the judge entered a judgment against defendants reflecting that the jury had "rendered a verdict in the amount of $40,178 pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1, et seq.," and that the judge had "molded the verdict as to funeral and burial expenses pursuant to the Survivor's Act, N.J.S.A. 2A:15-3 to include the sum of $3,939.00."

On May 15, 1995 Coastal filed a motion to dismiss plaintiff's punitive damage claim. In response, plaintiff filed a cross-motion for a new trial on the wrongful death damages claim. The judge denied Coastal's motion, holding that plaintiff's claim for "punitive damages" against defendants "could be properly presented under the survivorship statute." The judge also denied plaintiff's cross-motion for a new trial on the "compensatory damages." Finally, the judge ruled that the "funeral bill" of $3,939 "would properly be included in the wrongful death aspect of the case."

On July 15, 1996 the punitive damage trial began before a new jury. With the consent of plaintiff and Coastal, plaintiff's punitive damage action against Whitaker was dismissed. On July 25, 1996 the jury was asked to answer two questions. The first question was: "Do you find that the conduct of the Defendant, Coastal Oil Company, gave rise to a claim for punitive damages?" The jurors (6-0) answered "yes" to that question. The second question was: "What is the proper amount of punitive damages to be awarded in this case against Coastal Oil Company of New York?" The jurors (6-0) answered "one million, two hundred fifty thousand" to that question.

On August 5, 1996 Coastal filed a motion for a new trial or remittitur. On September 5, 1996 the judge entered an order denying Coastal's new trial motion. In this order, the judge at Coastal's request amended the judgment entered on May 30, 1995 to reflect that the "molded verdict including funeral and burial expenses were recovered pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq." Both parties then appealed.

IV

Coastal raises nine points on its appeal:

1. DID THE JUDGE ERR IN HOLDING THAT PUNITIVE DAMAGES ARE RECOVERABLE UNDER THE WRONGFUL DEATH ACT?

2. DID THE JUDGE ERR IN NOT DISMISSING PLAINTIFF'S PUNITIVE DAMAGE CLAIM AS A MATTER OF LAW, BECAUSE NO COMPENSATORY DAMAGES WERE RECOVERED BY PLAINTIFF UNDER THE SURVIVORSHIP ACTION?

3. MUST THE PUNITIVE DAMAGE AWARD BE REVERSED, BECAUSE THE FACTS OF THIS CASE DO NOT MEET THE THRESHOLD FOR EGREGIOUS CONDUCT NECESSARY FOR THE IMPOSITION OF PUNITIVE DAMAGES?

4. DID THE JUDGE ERR IN DENYING COASTAL'S MOTION TO BAR PLAINTIFF'S EXPERTS AND IN REJECTING ITS OBJECTION TO ONE EXPERT RENDERING AN OPINION AS TO CAUSATION?

5. DID THE JUDGE ERR IN DENYING COASTAL'S MOTION TO STRIKE THE PUNITIVE DAMAGE AWARD OR, IN THE ALTERNATIVE, FOR REMITTITUR, BECAUSE THE $1.25 MILLION AWARD WAS CLEARLY EXCESSIVE, AND NOT IN ACCORDANCE WITH THE PUNITIVE DAMAGES ACT?

6. DID THE JUDGE ERR IN DENYING COASTAL'S MID-TRIAL MOTION TO RECUSE HIMSELF?

7. WAS THE JURY'S PUNITIVE DAMAGE VERDICT THE PRODUCT OF PASSION OR PREJUDICE, BECAUSE THE JURY APPARENTLY DID NOT UNDERSTAND THE ISSUE OF PROXIMATE CAUSE OR THE STANDARDS BY WHICH TO MEASURE CONDUCT IN DETERMINING WHETHER PUNITIVE DAMAGES WERE APPROPRIATE?

8. DID THE JUDGE ERR IN PERMITTING IMPROPER FINANCIAL INFORMATION TO BE PLACED BEFORE THE JURY TO CONSIDER IN DETERMINING A PUNITIVE DAMAGE AWARD?

9. DID THE JUDGE ERR IN ADMITTING INTO EVIDENCE COASTAL'S FEDERAL HIGHWAY ADMINISTRATION CARRIER PROFILE FOR THE PERIOD JULY 22, 1994 TO JULY 22, 1996?

Plaintiff's sole point on the cross-appeal states:

DID THE JUDGE MAKE SEVERAL TRIAL ERRORS WHICH MUST BE ADDRESSED IN THE EVENT THIS MATTER IS REVERSED AND A RETRIAL IS ORDERED?

V

Coastal first contends that the judge "erred in holding that punitive damages are recoverable under [the] New Jersey Wrongful Death Act." The judge made no such ruling and would have erred if he had. The judge said that: "In a wrongful death action, perhaps punitive damages would not be appropriate." With regard to the "punitive damage issue," he ruled that this issue "could be properly presented under the survivorship statute."

When the death of a person is caused by the "wrongful act, neglect or default" of another, an "action for damages" arises. N.J.S.A. 2A:31-1. In "every action" brought under N.J.S.A. 2A:31-1, the jury can only award damages "with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased" to the "persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. In this case, the sole surviving adult child, Lois Buttner, was the only eligible beneficiary under the Wrongful Death Act. See N.J.S.A. 2A:31-4.

This aspect of the Wrongful Death Act was explained in Turon v. J. & L. Constr. Co., 8 N.J. 543, 86 A.2d 192 (1952):

The evident policy of the statute is the recovery of damages for the pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal. Damages are assessed to compensate for the injuries sustained by the persons to whom they are payable.

[8 N.J. at 555-56, 86 A.2d

192.]

The design of section 5 [ N.J.S.A. 2A:31-5], from the very beginning, was the limitation of the measure of damages to the "pecuniary injuries" sustained by the statutory beneficiaries as the result of the death. The statutory policy was remedial and not punitive.

[Id. at 557, 86 A.2d 192.]

See Carey v. Lovett, 132 N.J. 44, 67, 622 A.2d 1279 (1993) ("Damages for the wrongful death of an infant, like wrongful-death damages generally, are...