In a second case a Colorado woman who allegedly feigned a mental disability to get excused from jury duty is being charged criminally. The judge was one of the listeners of a radio show that she called into. Apparently she started with this, “I just want to make a confession….”

http://bcove.me/p2l3mjbk

"Motor vehicles that ran red lights injured a total of 113,000 people in 2009. Of those injuries 676 were fatal.

Of these fatal accidents, 46 percent were occupants of the other vehicle, 12 percent were passengers in the vehicle running the red light, 6 percent were pedestrians or cyclists and 36 percent were the drivers of the vehicle running the red light. In addition, 11 percent of people killed in red light running accidents were motorcyclists, 10 percent of those drivers were teenagers. 22 percent of drivers in fatal red light crashes were unlicensed and 25 percent had blood alcohol content over the legal limit of .08 percent.”

Red Light Cameras: Lifesaver or Flawed Solution?
Patch.com
American Traffic Solutions Motor vehicles that ran red lights injured a total of ... In addition, 11 percent of people killed in red light running accidents ...

According to the opinion, Upon learning of the error some time later, the Weigels attempted to contact Ries, but were unable to reach him. In a letter dated February 2, 2011, Mr. Weigel threatened legal action against Ries if he did not refund $250 each to Mr. Weigel and Ms. Weigel within ten business days. Ries failed to respond to the letter.

….

On August 16, 2011, the Board filed a complaint against Ries, alleging that he violated rule 32:1.15(d). Ries did not answer the complaint, nor did he participate in a pretrial scheduling call. He did appear at the October 24, 2011 hearing convened by a division of the grievance commission. At the hearing, Ries acknowledged he had not yet repaid the $500. He explained:

[I]t is simply a matter of not having the wherewithal to do it. . . .

I’m not making any, you know, excuses for that. And I would just ask the Board to take that into consideration. Like I said, it’s not a scenario where I tried to deceive these folks, and they ended up paying more money than what was owed, and, you know, upon realizing it those funds had already been used to pay bills, and that leaves me in this scenario I’m in now.

.... 

Ries also explained he did not appear at the small claims hearing because he “didn’t contest it.” Ries said that he did not file an answer to the Board’s complaint or appear for the scheduling hearing because “it was a matter of being sheerly embarrassed about the whole situation.” Ries added that he “absolutely” planned to repay the Weigels when he had funds, but as of the hearing he did not have $100, let alone $500. Ries said he has been getting support from his girlfriend and friends and has contemplated filing bankruptcy.

(Emphasis added with underlining.) 

For the less experience lawyers out there, in the practice of law you can't ignore your mistakes you have to take responsibility for them – no matter how painful. To do otherwise undermines the profession.

The testimony in this case is a sign of our times in the legal profession. Lawyers are struggling to make ends meet and to earn enough to pay the bills. In this regard lawyers are no different than anyone else; in a bad economy they struggle financially along with the rest of society. It’s difficult to read this decision and to realize how even good lawyers get caught up in the economic pain of these trying times and allow the problem to snowball out of control. Hang in there, better days are ahead.

• No. 11–1865 IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD v. RIES
• On review of the report of the Grievance Commission of the Supreme Court of Iowa.
• Lawyer Too Broke to Pay Back $500 Gets Suspended, KCRG
• Iowa Supreme Court Opinions – Most Recent

How about today we listen to Bob Seger, Turn the page.

According to the opinion by that time the raised portion of the concrete pad had been ground down so that it was more even with the adjoining pad. Negligence in maintaining the sidewalk was the legal claim then being asserted. No pre-maintenance photos could be found. At trial the Gansens filed a motion in limine requesting exclusion of the photographs asserting the outdated rule of subsequent remedial measures under Iowa Rule of Evidence 5.407.

Here is what the Court of Appeals wrote:

Over Gansen’s objection, the court admitted the photographs into evidence, issuing the following curative instruction:

Ladies and Gentlemen of the Jury, the photographs that have been admitted into evidence are to be used by you for the sole purpose of determining the condition of the property at the time of Plaintiff’s fall. You should disregard the fact that a repair was made, as the repair itself may not be considered by you as evidence of negligence on the part of Defendant.

The district court also included Jury Instruction No. 25, which read: “

You have received evidence that a repair was made to the sidewalk after Constance Maiers fell. You may not consider that fact as evidence that Priscilla Gansen was negligent.”

The jury found Gansen liable, and returned a verdict of $191,916.20 in damages.

I like what this judge did with denying the motion in limine, admonishing counsel and in providing the jury with a curative instruction. The rule of subsequent remedial measure is outdated and assumes jurors aren’t capable of putting the remediation into the proper perspective in determining liability. That and the rule of evidence gives the defense the opportunity to mislead the jury about what was possible and how bad they defect was that made them take corrective action, albeit after the person was injured. Dubuque County District Court Judge Michael J. Shubatt’s ruling has the wisdom of Solomon.

Let's face it, that sidewalk was a hazard before the remediation meausres and fixing it was not just possible, but quite feasible economically. The trouble is that most people won't fix sidewalks no matter who sues them so refusing to allow the photographs into evidence would serve no purpose whatsoever. This is a good decision from a public policy standpoint.

Iowa Court of Appeals Recent Opinions - No. 1-1006 / 11-1167 - CONSTANCE M. MAIERS, Plaintiff-Appellee, vs. PRISCILLA GANSEN, a deceased person, and PETER J. GANSEN, as Executor of the ESTATE OF PRISCILLA GANSEN, Defendants-Appellants.

Today’s diversion is Bob Seger’s, Tryin’ to Live My Life Without You

The “Polite Robber” Gets Arrested surveillance

In Iowa City there have been three bank robberies in the past several months. Video should assist to solve who is this bank robber. But here is a story from KCCI-Channel 8 that is quite interesting. The Des Moines Police are releasing the planned locations for mobile traffic enforcement cameras. Take a look at Mobile Speed Cam Locations Next Week, Des Moines, Iowa. The Des Moines Police even have their own Facebook page and release the locations of video surveillance for the coming week.

Seriously? This is way too funny. 

Des Moines Police

Mobile Radar Locations February 6-10
Mon Feb. 6th 2800 blk. E. 38th St (NB)
Tues Feb. 7th 1700 blk. Indianola Rd. (SB)
Wed Feb. 8th 1800 2nd Ave. (SB)
Thur Feb. 9th 2700 56th St (SB)
Fri Feb. 10th 1500 27th St (SB)

Then there is a recent assault case at the Ankeny Wal-Mart. Police report two woman assaulted a female security guard at the Ankeny Walmart store at 1002 SE National Avenue about 4:00 pm, they don’t report on what day. What’s interesting is the surveillance store footage has a very clear picture of the two woman. See KCCI’s story, Do You Recognize These Women? Of course a photographs of customers is a long way from proving these are the same people who assaulted the guard, but it demonstrates that whenever there is the accusation of criminal activity the first line of offense and defense may be the surveillance cameras. 

Whether it’s a criminal case, a car accident or a slip-n-fall case, attorney’s need to visit the scene and look around for what may be the best witness money can find. The same can be said of those accused of a crime. Go to the scene and look around to see if there are surveillance cameras present. If so tell your lawyer and allow them to obtain the evidence. 

The challenge with video surveillance footage in a digital age will be quality of the images shown, the chain of custody and spoliation of evidence. Frost & Sullivan have an interesting white paper on the subject. See Frost & Sullivan, Using Video Surveillance As Evidence, Capturing And Storing The Best Video For Evidence. What I find interesting about this white paper is the expectation of protection argument being suggested and how that might impact retailers whose cameras provide poor quality making the evidence unreliable and therefore not admissible. Why have the camera and create an expectation of protection when what the camera produces is useless? Another reason why this subject is timely is the growing use of traffic ticket surveillance cameras in Cities across the United States. (The Problem With Legacy Surveillance Systems)

These cameras will provide evidence for many kinds of cases and I'm guessing there will be a push to make the video public with its posting on the Internet. 

Resources:

• Video Surveillance Evidence: Are Digital Copies Admissible, Pursuit Magazine
• Court Allows Defendant to Rely on Surveillance Evidence
• Use of Video Surveillance Evidence to Support Employee Discipline, Maiello Brungo & Maiello, Attorneys discussing collective bargaining agreements and how those agreements treat surveillance of employees. See Brewers & Maltsters, Local Union #6 et. al. vs Anheuser-Busch, Inc.,  2005 U.S. App. LEXIS 13292 (D.C. Cir., 2005)
• BC Injury Law And ICBC Claims Blog,
• The Documentalist, Admissability (sic) of Digital Data in the Court Room Outside of the US
• Prosecutor: Surveillance footage no help in solving case of heroin missing from evidence locker, Chicago Tribune, placement of the camera is important because in this case someone parked a food delivery truck so it blocked the lone surveillance camera’s view of the evidence locker allowing 3 kilos of heroin to be removed. 

See Branstad Says He Would Sign Traffic Camera Ban, KCRG, TV-9. Apparently while visiting Arizona he was mailed a $200 traffic ticket after his speed was 10 miles over the posted limit while driving across the desert in a rental car.

As a personal injury attorney I don't find the outright ban encouraging. Anyone who has driven on I-235 from West Des Moines to Des Moines before the traffic cameras were installed knows what that was like. It's a race track with no traffic cop. Interstate 235 needs cameras. There are some locations where traffic cameras have helped to slow down the traffic and reduced the number of accidents and near accidents. Totally banning cameras would only encourage the morons who drive like they are on the Newton Speedway. Why should the Governor give them the green light? 

Committee approves traffic camera changes, Quad-City Times

Get Rid of Iowa Traffic Cameras, Facebook

Iowa Traffic Webcams, Leonards Worlds

Central Iowa Traffic Cam Targets Wrong License Plate, KCCI

Find Traffic Cameras by Map by TrafficLand

Get Traffic View on your iPhones, iTunes

Iowa Lawmakers consider ban on traffic cameras, Instapundit.com

Update:

Camera ban moves ahead as argument heats up – Classic debate between liberty and security, January 26, 2012, Des Moines Register, Jason Noble

Des Moines police say red light cameras are reducing crashes, January 24, 2012 – Anyone who’s driven on I-235 after the cameras were installed knows this is true. The speeds have dropped and it’s less like the Iowa Speedway and more like it should be, a commuter route into the City from West Des Moines. 

Man shoots nail into his brain, posts it to Facebook from ambulance. 

Lawyers are constantly having to deal with what clients post on FB. Clients post inappropriate things on FB all the time. There is a disconnect between the reality of what they say on the one hand in a lawsuit and what they post on FB. Defense lawyers know it as do Plaintiff lawyers. The admissions go both ways and so lawyers on both sides immediately march to FB to see what the other lawyer's client is publicly stating. 

A case that just came to my attention was a drunk driver bragging on FB about how much he's drank and how fast he was travelling before the crash that mangled his passenger. His insurance company paid the limits of $100,000 to the injured passenger.

Get a clue folks, if you're involved in a lawsuit shut down your FB page.

What is the Participation Trophy Syndrome? It's the development of bad character brought about through telling children they are winners, just for showing up. Only losers will accept a participation trophy, winners want to win one.

We have way too many lawyers out of work with not enough open positions to hire them all. If you're one of the unemployed lawyers you must be asking, how can you get a law related job or how can you get back to work? Let's explore that issue today.

Just keep in mind that you were born in the USA... and whining isn't allowed; being tough is though.

Get used to it, in real life no one is handing out participation trophies. As one elderly woman once said to me, "There's nothing wrong with this younger generation that a good depression wouldn't cure." 

Constant bitching about how your law school can't find you a job is like the guy shown in the picture; what law firm wants to hire someone who is working to alienate the rest of the bar?

7. Apply in every state agency that has legal jobs.

8. Apply to every insurance company for a claims job adjusting claims. 

In a future post I will discuss how to get free office space.

Lawsuit filed over pileup during 2010 blizzard on I-35, Laura Bird, Courier Lee News Service

Lawsuit filed in I-35 blizzard pileup, Laura Bird, Globe Gazette, Mason City, Iowa

The article written by Rick Ruggles of the World-Herald out of Omaha, explores the dangers, past and present, of farming in rural America. While the article points to engineering as making farming safer it fails to point out how lawyers have contributed to pressuring the re-engineering of farm equipment to make it safer.

Like it or not, lawsuits have done much to make farming a safer profession.

  The three examples that come to mind are unshielded PTO shafts, augers and tractors sold without rollover protection (ROPS). Those three pieces of farm machinery did more damage to limbs and took more lives than probably any other dangers in farming; one still does. Manufacturers packed the standard writing organizations with like-minded engineers who argued changes weren’t feasible. Farmers continued to die while lawyers poured their own funds into litigation suing manufacturers to force loftier engineering standards that ultimately resulted in safer farming equipment.

Of course farmers should hug us not hate us. 

So say you hate us all you want, but we ain’t going away and it has everything to do with life and limb compromised by unsafe products and services. And as personal injury lawyers we know better than to simply catalogue the progress without following the money; our money and what it’s done for farm safety. Turn us away from the courthouses and you shortchange yourself and increase the risks you face while farming. It's pretty simple and sometimes referred to as the Golden Rule. Do unto others as you would have them do unto you.

• Suffocation from quick sand like corn or beans in a bin
• Unshielded PTO shafts
• Tractors on uneven ground and rolling over crushing the driver
• Unshielded Auger Power Shafts
• Being kicked by an animal
• Being overtaken by cold weather in an unprotected location
• Being crushed by machinery
• Losing a limb from working around pinch points and other moving parts
• Being overcome by anhydrous ammonia
• Falling from heights without a fall protection harness
• Being in an accident on the rural farm-to-market roads while driving heavy equipment
• Dying from exhaustion after putting in long hours during harvest

  ---

ARTICLES OF INTEREST

• NSC: Data Still Shows Dangers of Farming, Editorial Staff
• Danger on the farm, Rick Ruggles, World-Herald Staff Writer
• Farmed And Dangerous, Coastal Alliance for Aquaculture Reform
• Accidents a reminder of farming dangers, Jennifer Ewoldt, The Quad-City Times
• Farm Safety, Kids Health
• The Dangers of Farming, Local Harvest
• The Dangers of Industrial Farming, Bryan Welch, Mother Earth News

A second roll-over car accident takes place in Chamberlain, S.D. reportedly killing a northwest Iowa man, Leon Contreras of Estherville, Iowa. The driver is described as 37-year-old Ramon Castillo; neither man is described as wearing a seatbelt, although no details are given about what happened to cause the accident. 

As you can see each of these rollover case is different; seldom are two the same. In the first you have one young driver who could be considered the at-fault driver and with no passengers she would have the only claim. She would file with her own insurance company under the medical pay section of her policy. Beyond getting paid medical bills there is nothing to be paid for personal injury unless she can show there is something wrong with the road, the car she's driving or there is another vehicle with a bad driver.

In the second accident, the passenger’s estate (he is reported to have died), would file a claim with the driver’s auto insurance company and if he has low limits of coverage he may also file with the passenger underinsured motorist coverage policy. Of course if the driver is uninsured and the passenger had automobile insurance then his estate’s administrator will file under the uninsured motorist coverage.

In the third accident the oil service field worker was in the course of his employment at the time of his rollover accident so he would have several avenues to consider for personal injury coverage. First is the workers’ compensation insurance and that’s an easy one. The second depends on whether he was forced off the road by another car or not. If so then there is a third-party case against the at-fault driver and owner of the at-fault car. The next claim as you can see had to do with his claim of receiving shoddy treatment that fell below the standard of care in Wyoming.

So there you have it three different rollover accidents with three different results and places to file insurance claims. And you wonder why they call this “the practice of law”? Note, the operative word is practice. 

Black Hawk County, Iowa - What caused the driver to not see the oncoming truck and to pull out right in front of it on Highway 63? The accident is described as involving an F-250 Pickup truck and a Toyota Corolla – a fight weighing heavily in favor of the Ford. The Toyota being driven by one Joseph Pink pulls out from C57 and attempts to cross the southbound lanes of Highway 63 just as Garth Harold Beatty in his 1999 Ford pickup truck towing a trailer is crossing C57 at that intersection. The inevitable occurs with Mr. Beatty’s truck t-boning the little Toyota. Apparently Mr. Pink died in the crash and a passenger Mr. Harold Beatty was injured and taken to Allen Hospital. I used to work with a lawyer Sam Beatty in Waterloo. He was really a nice guy; I liked him a lot.

Ten things we want to know from the accident investigation:

1. We would want to know if there was an obstruction to the view of Mr. Pink.
2. We would want to know the speed of the Beatty truck?
3. We want to know how long any skid marks are along with where they start and stop.
4. We want to know the initial point of impact.
5. We want to know the crush depth into the Toyota.
6. We want to know if Mr. Pink was distracted while driving.
7. We want to know if any driver was under the influence of alcohol or drugs.
8. We want to know the chemical tests from the autopsy report and any administered to the other driver.
9. We want to view the scene and photograph it.
10. We want to interview any passengers.

Things to do right now:

1. Get the ISP Technical Investigation Report with Photographs.
2. Visit the accident scene.
3. Talk with as many witnesses as you are able.
4. Photograph the vehicles involved.
5. Photograph the scene.
6. Look in the vehicles for evidence showing the whereabouts of the passengers prior to the collision.

There are a lot more questions to be answered but this is a start. What we are evaluating is negligence of all drivers and the landowners who have a duty to mow their weeds. Remember right now you want to prove the facts not your case. Your case will be proven, or not, when you gather and preserve the facts.

The Iowa State Patrol describes the accident this way:

NAMES HAVE BEEN RELEASED, VEHICLE 1 WAS WB ON C57, AS VEH 1 ATTEMPTED TO CROSS THE SB LANES OF HWY 63 HE WAS STRUCK BROADSIDE BY SB VEH 2, VEH 2 WAS A PICKUP PULLING A TRAILER, VEH 1 ENTERED WEST DITCH SOUTH OF THE INTERSECTION, VEH 1 CAME TO REST IN DITCH FACING NORTH, VEH 2 ALSO ENTERED WEST DITCH AND FLIPPED COMING TO REST ON ITS TOP FACING NORTHWEST, THE TRAILER SEPARATED FROM VEH 2 COMING TO REST PARTIALLY ON TOP OF VEH 2.

Follow this link to read the Iowa State Patrol’s preliminary report. 

For a list of locations see below.

Traffic Camera Proves A Reliable Witness In Crashes, AP provided by KCCI-Channel 8

• Iowa Department of Transportation – Des Moines Area Traffic Speedmap and Cameras Link
• Iowa Traffic Webcams from Leonards Worlds
• Traffic Cameras by State – USA Russia Style link.
• Iowa Webcams link.
• Des Moines area links.
• Iowa Red Light Cameras Map link. 

Social networking spat ends in arson charges for woman, Des Moines Register

We thought proving ownership of the cow would be as easy as someone being honest and coming forward to admit ownership. But that's not how it's working in rural Iowa. Honesty about ownership is one concept you are not likely to find.

These are tough cases to prove as to who owned the cow. Ownership is extremely important and that means the lawyers need to be involved as quickly as possible.

Did law enforcement help? The Sheriff's are elected officials who look only so far probably not wanting to anger any of the locals. Not proving ownership in some ways gets them re elected. Law enforcement's paperwork on past instances where cows got out is in most instances, Sorry Charlie it's not available. The Sheriff's offices are little or no help. 

Local knowledge washes away with the filing of a lawsuit. If there is no lawsuit every farmer will know who’s cows regularly get out onto the highway and who has lousy fences. File suit and it’s like you are on another planet. Everyone has amnesia. The locals go mute because they are for the most part deaf, dumb and half blind.

Yet everyone knows how many cows they own, where they are and I'm sure someone took a tax-write-off for a dead cow. Still no one is missing a cow.

What about tax write-offs for death and depreciation schedules? You'd be surprised how many floods rural Iowa has and how many farmers keep their tax returns in locations in the house that flood. File one of these suits and you'll soon see the flooding in Iowa’s farm basements is Biblical. Noah must be living in the basements of Iowa's farms.

Anytime you read of such a case and either know the family involved or the family comes to you for advice DO NOT SIT ON THE CASE. If you don't know what to do get someone involved that does and do it quickly. If you really don't understand the case law or proof problems refer the case and move on with your practice. Like I said the proof problems are extremely difficult and the paper trails are for the most part in the hands of farmers who don't give them up very easily.

I’ll bet if I was rustling cattle everyone would know whose cow it is that I stole. Moooooo...

The local Sheriff, a farmer and their tax preparer. Iowa's best and brightest. Do as I say not as I do.

As a personal injury lawyer it’s my business to worry about girls with ponytails.

I took a break from blogging, but I think I’m back. Then again who knows, but here is why I took a break from blogging.

I’ve been blogging for four or five years. Frankly I can’t recall because how long I’ve been writing is meaningless as to whether what I write is worth reading. I write how I feel and think about law and what I do for a living as a personal injury lawyer. Blogging on the LexBlog site is more therapeutic than anything else. So what happened that made me stop writing?

First and foremost you have to know I’m a personal injury attorney. Most people dislike us and what we do; they think we are greedy. I probably am because I hate being poor and my mother raised me to be a capitalist. But I won’t make any apology for what I do or how I do it because what I do is too important to stop. 

Frivolous? What’s frivolous? Who defines a frivolous claim? You, me or they?

Yeah well get a clue because there are no frivolous claims in our court system; at least not here in Iowa. And don’t mention to me the McDonald’s verdict because frankly very few people know what that case was about. If you want to see frivolous, then take a look at what’s plead as a defense. There are liars and cheats but not frivolous lawsuits; and there are liars and cheats on both sides of some lawsuits. It’s my opinion there are more liars on the insurance side than the injured side, but that’s just my opinion. If you understood anything about the business of practicing law you’d understand that contingent fee cases can’t be frivolous because lawyers have bills to pay and valueless claims are worthless producing no fee.

Zippo, nadda, nothing, zilch.

This entire frivolous crap shoot took away my clients’ right to seek redress in the Courts. The entire frivolous political rhetoric got me pissed off and the more I heard from conservatives about it the more pissed off I became.

Tort reform has nothing to do with frivolous claims. It has to do with profits. Taking money from the injured and leaving it in the hands of insurance execs who then write themselves huge million dollar bonuses for having successfully cheated the injured. After the tort reform bandwagon got cranked up the harder it became for us to do for people what they needed done. I’m in the business to help people and the harder it got to help people the more pissed off it made me.

Folks, I’m a Republican and there is no difference between Democrats and Republicans. They are all gaming us to keep the discretionary spending control passing back and forth to simply take advantage of us, the taxpayers. They leave Congress wealthy because of trading stock options selected by knowing where the money will go long before they vote. Get a clue; it’s not about tort reform it’s about the golden rule. And injured people don’t own gold so they don’t make the rules to benefit the injured. I grew tired of this issue and how it affects those who need my help. I grew tired of marketing people telling me to be a good guy when what I’d really like to do is throttle those in power who distort the tort system for their own profit taking.

I’ve been writing blogs about car, motorcycle and truck accidents nonstop for a long-long time. I write nearly 1,000 blogs per year on average and every blog post is about someone who is either killed, seriously injured or can’t put food on the table. I’ve listened to the marketing guys tell us personal injury lawyers we need to appear like good guys; building image so when people need us they think of us as good guys. Horseshit. That’s like telling your oncologist to stop talking to his patients about cancer and instead to learn how to tell a good joke. We deal in blood, guts, death, brain damage, severed limbs, lies, liars, greed, tears, how to put food on the table, how to bury someone that hasn’t a burial insurance policy, how to get the life insurance out of the girlfriend’s hands and into the infant children’s stomachs or any of the other million problems people create by making poor decisions and then coming to me and asking me to walk on water. Negligence, fault and frankly just being an asshole is what I deal with on a daily basis. I don’t deal in nice things; I earn a living by spending my money to rebuild lives that are down in life’s muck. When life sucks people come knocking on my door.

“If you want to meet a nice lawyer, then go meet a plastic surgeon who holds a JD degree. Trial lawyers aren’t always nice pleasant people.”

This worry about my clients never takes a vacation in my life. I go to bed thinking about widows and orphans along with injured workers and wake up in the middle of the night with a solution or not. I battle liars and cheats who can think of a million ways to cheat the injured. This has been going on more years than I care to count, but let’s do it. Let’s count the days of my life wallowing in the muck of life. I’m 57 on November 8^th. That means I’ve been alive for 20,805 days. I started this journey to the center of the universal fringe in June 1981; but it actually started at the legal clinic for the poor in Jasper County in 1980. That’s 31 years x 365 days/year which equals 11,315 days and nights. This means 54% of my life has been spent worrying about other people’s problems. You want nice, like I said, go visit a plastic surgeon that makes a million a year smiling at people and has the ability to make them something they aren’t.  

As plaintiff attorneys the issues we wrestle with are difficult.  Drunks kill our clients or leave them to fend for themselves in life. My job is to put on the legal party by interviewing witnesses, collecting the medical records, bills, wage loss, estate values, car damage and all other economic losses. I put the party on; the defense simply has to show up and put arsenic in the punch bowl. I work with imperfect people who do not understand the effort it takes to make the seemingly impossible become reality. I put the party on while the defense shows up with a rifle trying to pick off just one issue. If they are successful my client’s life continues to be crap and my money goes down the drain. It’s not easy.

“It’s what we do as personal injury lawyers. We don’t have to be nice, what we have to do is be effective at problem solving.”

Judges don’t care what my problems are. As they are fond of saying this is not about fairness, it’s about law, sometimes referred to as justice. Yeah right. That’s not why I went to law school. I went to law school to help people not to move words. Money improves lives and puts food on the table not words or wearing a black robe.

So what was the straw that broke the camel’s back and forced me to walk away from blogging for awhile? It all started with reading and writing about car accidents. Then one morning around 7:30 a.m. on a country road in southeastern Iowa I hit the wall. I’m driving down Highway 16 heading towards Quincy, Illinois when I see a Suburban in front of me. It drifts off the road, spits up dust and rock, then comes back onto the hard surface and overcorrects across the center line. This goes on for miles and along the way I drive beeping the horn with a white knuckled grip on the steering wheel just trying to get the driver to pull over so I can talk with her. From behind the Suburban I can see a young high school aged girl with a ponytail that swishes back and forth as she turns her head from side to side. As the Suburban drives past semi-trucks, a tractor pulling a disc, cars and pickup trucks I’m anticipating a head-on collision. For miles I’m practicing a 9-1-1 call and mentally establishing a protocol for triaging the passengers. Who will I go to first? How many will be alive? I can still hear voices crying, moaning, pleading and asking me to help me; I anticipate having to make judgments while holding a cell phone and ordering the ambulance. I can see faces of young pretty girls who I end up making decisions that can either keep them alive or not. On the drive as we progress east on Highway 16 I’m looking in my truck’s cab for what can be used to stop bleeding. I think of my shirt and shuck off the embarrassment of how out of shape I am. I wonder how many will be in the other car or trucks that are not so lucky to get by. It bothered me then and it still bothers me today. Frankly I was sick and tired of personal injury. The incident made it all too viseral for me. I just couldn't write anymore.

Video Dash Cam from Iowa State Patrol

And so after this was resolved and everyone is safe, I was left still with sleep interrupted nights and an inability to write a blog about personal injury accidents. No longer do I want to analyze truck accidents. I start to wonder how the girls in the Suburban are doing. I wonder about their golf season and graduation. Prom and whether they are safe. Maybe it’s my nature and maybe it’s PTSD; I have no idea. I even think about the coach and how lucky she was that I was there that day. Instead of spending the rest of her life in prison she’ll get a short stint in the county jail and her life to rebuild and to enjoy sunrises and sunsets. Instead of misery from sitting alone in a prison cell with her thoughts of having killed young promising girls; she gets to move on with her life. Will she ever thank me? Do I deserve to be thanked? Why am I still pondering these things?

I have no idea why God made me the way I am, but rational thought and reason have no meaning at 2:00 a.m. when you’re staring at the ceiling trying to fall back asleep. So today I’m back to blogging and talking about personal injury law, accidental injury and I’m back to meeting with widows and orphans. To get back I had to ask myself do I really want to do this damn personal injury work; and if so why. The answer is pretty straightforward; it’s no different than the reason why I started in this business of being a lawyer. It’s that damn ponytail. That ponytail on that young lady is what makes her perfect for me and what I like to do. I was given the opportunity to be there and to stop the driver, to maybe save her life and the lives of those she sat with wondering if they would make it out alive. That's what PI work is really about. It's why I like PI work. Frankly it’s my nature and my job to worry about that ponytail. It’s what I’ve done for 31 years and it’s why I’m back to blogging and working the personal injury circuit in the Iowa Courts. It’s what we do as personal injury lawyers. We don’t have to be nice, what we have to do is be effective at problem solving.

I hope the girl with the ponytail is doing well and that all the Suburban girls are safe on prom night. Like I said, it’s my business to worry. Onward I march.  

To read more about this issue see these links:

Iowa golf coach arrested for driving team to meet while drunk, By Jonathan Wall

May 11, 2011 - Fairfield girls golf coach arrested while driving team to meet; charged with OWI, child endangerment

SCOTT JACKSONCourier sports writer

MAY 18, 2011 - Iowa High School Golf Coach Arrested For Driving Team To Meet While Drunk

Posted: 2:13 PM May 11, 2011 - Coach Arrested For DUI Driving Golf Team To Meet

Teacher charged with DUI and child endangerment

The Iowa Supreme Court affirmed the legal maxim that dead men tell no tales. In In re the Estate of Johnny Vajgrt, Bill Ernst, Inc., Intervenor (IA Sup. Ct., Aug. 5, 2011) the Court upheld dismissing a punitive damage claim, even against the estate of a tortfeasor who no longer can do harm to others and held the estate would be powerless to prove the decedents state of mind in committing the acts for which he was sued. The law firm of Grefe & Sidney did a nice job of summarizing the opinion. Just follow this link to review their case summary. The actual opinion can be read at this link. Also the Des Moines Register has a story.

Iowa Supreme Court Opinion Link

See also No Punitive Damages After Wrongdoer’s Death, Iowa Supreme Court Affirms, Insurance Journal

IN RE: the Estate of Johnny VAJGRT

IN RE: the Estate of Johnny VAJGRT, Deceased, Bill Ernst, Inc., Intervenor–Appellant.

No. 10–1088.

-- August 05, 2011

Theodore R. Hoglan of Condon & Hoglan Law Firm, Marshalltown, for appellant.Melissa A. Nine and Barry S. Kaplan of Kaplan, Frese & Nine, LLP, Marshalltown, for appellee.

The sole question presented by this appeal is whether a right to punitive damages survives the death of the wrongdoer. On several previous occasions, we have held that punitive damages may not be recovered from the estate of a deceased tortfeasor. See Rowen v. Le Mars Mut. Ins. Co., 282 N.W.2d 639, 661 (Iowa 1979); Wolder v.. Rahm, 249 N.W.2d 630, 632 (Iowa 1977); Stevenson v. Stoufer, 237 Iowa 513, 517, 21 N.W.2d 287, 288 (1946); Sheik v. Hobson, 64 Iowa 146, 147–48, 19 N.W. 875, 875–76 (1884). Upon our review, we are not persuaded that we should reconsider these precedents. Therefore, we affirm the judgment below.

I. Background Facts and Proceedings.

Bill Ernst, Inc. owns a thirty-three-acre tract of land north of Marshalltown. The Ernst property is bordered by Highway 14 to the west, property owned by Johnny Vajgrt to the north, city-owned property to the east, and the Iowa River to the south. Burnett Creek meanders in a generally southerly direction to the Iowa River, at times through the eastern portion of the Ernst property and at times through the western edge of the property owned by Marshalltown. The Ernst property is an undeveloped, largely wooded area located in a floodplain that floods annually. Ernst uses the land for recreational purposes.

Burnett Creek also flows southerly through Vajgrt's property before it reaches the Ernst property. In the fall of 2005, Vajgrt became concerned that a fallen tree near the confluence of Burnett Creek and the Iowa River would create a dam and cause water to back up onto his land. Therefore, Vajgrt sought permission to enter onto Ernst's land to remove the tree. Bill Ernst initially refused Vajgrt's request, but after the City of Marshalltown agreed that Vajgrt could access its land to remove the tree, and Vajgrt explained to Ernst that it would be more convenient to go through Ernst's property, Ernst gave Vajgrt permission to come onto his property to remove the fallen tree.

Ernst then left on a hunting trip to Colorado. During that time, Vajgrt went onto Ernst's property with another individual. Instead of just removing the fallen tree, however, Vajgrt and the other person used their equipment to tear out approximately forty live trees that were on Ernst's property along Burnett Creek.

When Ernst returned from his trip, he was angry to have found that Vajgrt had uprooted numerous trees, instead of just removing the single tree for which he had been given permission. Ernst did not pursue a legal claim at that time, however.

Vajgrt passed away on November 4, 2008. On April 23, 2009, Ernst filed a claim in probate seeking compensatory damages for the diminution to the value of his property, the value of the trees, and the expense of restoration, as well as punitive damages.¹

Following a contested hearing, the district court awarded Ernst $57.50 per tree removed from Ernst's property for a total of $2300, but declined to award any punitive damages, stating, “[I]t is well-settled in Iowa that while a tort action survives the death of the tortfeasor, punitive damages cannot be awarded against the administrator of the tortfeasor's estate.” Ernst appeals, raising only the legal issue whether a claim for punitive damages should abate upon the death of a tortfeasor.

II. Standard of Review.

Whether a claim for punitive damages survives the death of a tortfeasor and may be pursued against the tortfeasor's estate is a legal question. Therefore, our review is for the correction of errors at law. Iowa R.App. P. 6.907; Bremer v. Wallace, 728 N.W.2d 803, 804 (Iowa 2007).

III. Analysis.

The long-standing rule in this state bars the recovery of punitive damages when the tortfeasor dies before judgment. In Sheik, decided when Iowa had been a state for less than forty years, we first announced this rule. 64 Iowa at 147–48, 19 N.W. at 875–76. Sheik involved a suit for slander. Allegedly, the defendant stated falsely in the presence of the plaintiff's husband that he had had sexual intercourse with the plaintiff. Id. at 146, 19 N.W. at 875. The defendant died during the pendency of the case, however, and the district court declined to instruct the jury on punitive damages against his estate. Id. at 146–47, 19 N.W. at 875. The plaintiff appealed, and we affirmed, explaining:

Such damages are awarded as a punishment of the man who has wickedly or wantonly violated the rights of another, rather than for the compensation of the one who suffers from his wrongful act. It is true, they are awarded to the one who has been made to suffer; but not as a matter of right. For, while he is entitled under the law to such sum as will fully compensate him for the injury sustained, the question whether punitory damages shall be assessed, and the amount of the assessment, is left to the discretion of the jury.

Plaintiff had a right of action, on account of the slanderous words spoken by [the defendant], for such sum as would compensate her for the injury. This was her cause of action, and this is what was preserved to her by the statute at his death. But she had no personal interest in the question of his punishment. So far as he was concerned, the punitory power of the law ceased when he died. To allow exemplary damages now would be to punish his legal and personal representatives for his wrongful act, but the civil law never inflicts vicarious punishment.

Id. at 147–48, 19 N.W. at 875–76. In short, Sheik emphasized that, because the role of punitive damages is punitive, rather than compensatory, such damages should not be awarded when the person to be punished has died.

This holding was subsequently reiterated in Stevenson, 237 Iowa at 517, 21 N.W.2d at 288 (“[T]he right to such damages did not survive the death of the wrongdoer either at common law or under our survivorship statute [.]”), Wolder, 249 N.W.2d at 632 (“[A] right to punitive damages does not survive the wrongdoer's death[.]”), and Rowen, 282 N.W.2d at 661 (“[S]uch an award is not made against one deceased[.]”).

Ernst argues that this line of authority is now obsolete and should be overruled. Ernst relies on Iowa's current survival statute as set forth in Iowa Code section 611.20 (2009), Iowa's punitive damages statute as set forth in Iowa Code chapter 668A, and our own recognition in various cases that punitive damages not only punish the tortfeasor, but also deter others from like conduct. For the reasons stated herein, we find none of these arguments persuasive.

A. Iowa Code Section 611.20. According to Iowa's survival statute, “[a]ll causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.” Iowa Code § 611.20. Ernst argues that this provision “would logically lean toward the allowance of [punitive] damages” even after the death of the tortfeasor.

However, one potential problem with Ernst's position is that punitive damages do not constitute a distinct “cause of action.” Rather, they are a form of relief incidental to the main cause of action. Sebastian v. Wood, 246 Iowa 94, 100, 66 N.W.2d 841, 844 (1954). Furthermore, Iowa had a similar survival statute in effect in 1884 when Sheik was decided. 64 Iowa at 147, 19 N.W. at 875 (citing Iowa Code section 2525 (1873), which provided that all causes of action “may be brought, notwithstanding the death of the person entitled or liable to the same”). We specifically rejected the same proposed construction of the survival statute back then, id., and the legislature has reenacted the survival statute in various forms without attempting to disturb our holding in Sheik.

“The legislature is presumed to know the state of the law, including case law, at the time it enacts a statute.” State v. Jones, 298 N.W.2d 296, 298 (Iowa 1980). “[W]e often infer legislative assent to our precedents from prolonged legislative silence.” McElroy v. State, 703 N.W.2d 385, 395 (Iowa 2005). The rule of stare decisis

“is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the legislature.”

Iowa Dep't of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa 2002) (quoting Cover v. Craemer, 258 Iowa 29, 34–35, 137 N.W.2d 595, 599 (1965)).

In short, reliance on the survival statute did not carry the day when Sheik was decided. If anything, the argument has less force today, given the legislature's repeated reenactment of the survival statute without attempting to disturb the holding in Sheik.

B. Iowa Code Chapter 668A. In 1986, the general assembly enacted a law relating to punitive or exemplary damages. See 1986 Iowa Acts ch. 1211, § 42 (codified at Iowa Code ch. 668A (1987)). Under the statute, as revised in 1987, see 1987 Iowa Acts ch. 157, § 10, a plaintiff may recover punitive or exemplary damages if the plaintiff proves “by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another.” Iowa Code § 668A. 1(1) (a), (2) (2009). If the plaintiff also shows that the defendant's conduct was “directed specifically” at the plaintiff, then the plaintiff shall be paid the full amount of the punitive or exemplary damages awarded. Id. § 668A.1(1)(b ), (2)(a ). However, if the defendant's conduct was not directed specifically at the plaintiff, the plaintiff may only receive up to twenty-five percent of the punitive or exemplary damages awarded, with the remainder being paid into a civil reparations trust fund to help pay for indigent civil litigation programs or insurance assistance programs. Id. § 668A.1(1)(b ), (2)(b ).

But chapter 668A is silent on whether punitive damages survive a tortfeasor's death. Therefore, it is difficult to make the case that the legislature intended to overturn the existing precedents in this area. Jones, 298 N.W.2d at 298. Our court had just reiterated the rule that punitive damages do not survive the tortfeasor's death in 1977 and again in 1979. It seems more plausible to conclude the legislature did not intend to change this recent case law when it enacted wide-ranging legislation on the subject of punitive damages in 1986 without addressing the recoverability of punitive damages from estates. We are not persuaded that the enactment of chapter 668A should lead us to reconsider our long-standing precedents.

C. The Policies Behind Punitive Damages. We have said that punitive or exemplary damages serve three purposes: (1) punishment, (2) specific deterrence, and (3) general deterrence. Sebastian, 246 Iowa at 100, 66 N.W.2d at 844 (Punitive damages serve “as a punishment for the particular party involved and as a warning and an example to him in the future, and to all others who may offend in like manner. The award of such damages constitutes an effective deterrent to such offenders, and a salutary protection to society and the public in general.”); see also McClure v. Walgreens Co., 613 N.W.2d 225, 230 (Iowa 2000) (“Punitive damages serve ‘as a form of punishment and to deter others from conduct which is sufficiently egregious to call for the remedy.’ “ (quoting Coster v. Crookham, 468 N.W.2d 802, 810 (Iowa 1991))).

Citing this case law, Ernst argues that the general deterrence role of punitive damages would be advanced by allowing recovery of such damages from a tortfeasor's estate. As Ernst puts it, “Sheik was decided in a day when the only purpose of exemplary damages was that of punishment. The additional purpose of exemplary damages presently is to discourage/deter others from like conduct in the future.”

We agree with Ernst that Sheik did not address this potential goal of punitive damages. It simply contrasted the compensatory function of actual damages with the “punitory” function of punitive damages. Yet by the time Rowen was decided in 1979, we were making it clear that “punitive damages serve two main purposes[:] to punish and to deter.” 282 N.W.2d at 662; see also id. at 661 (“[T]hey are allowed as both a punishment to the wrongdoer and a deterrent to others[.]”). Even so, in Rowen, we again reiterated the Sheik holding that punitive damages abate upon the death of the tortfeasor. Id. at 661. Thus, regardless of any possible broadening of the potential goals served by punitive damage awards, we have previously adhered to the rule that punitive damages should not be awarded against the estate of a wrongdoer. We therefore do not believe that Ernst's policy arguments warrant a reconsideration of our precedents.

Notably, Iowa follows the same approach with respect to criminal prosecutions. It has long been the law in this state that a criminal prosecution abates upon the death of the defendant. See Maghee v. State, 773 N.W.2d 228, 231 n. 2 (Iowa 2009) (citing authorities). Even though criminal fines may have a general deterrence effect on other wrongdoers, the state may not continue a criminal proceeding after the defendant dies to recover a fine from his or her estate. See State v. Kriechbaum, 219 Iowa 457, 458–61, 258 N.W. 110, 110–12 (1934) (holding that when a defendant dies while his conviction is on appeal, the action abates in toto and ab initio, and the costs of prosecution cannot be assessed against the defendant's estate); Babbitt v. Corrigan, 157 Iowa 382, 383, 138 N.W. 466, 467 (1912) (stating that, in the criminal context, “[p]unishment cannot be imposed upon a dead man, nor can penalties be imposed as against his estate”); cf. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19, 111 S.Ct. 1032, 1044, 113 L.Ed.2d 1, 20 (1991) (noting that punitive damages have been described as quasi-criminal).

Also, Iowa's rule in this area is not unique. Most other jurisdictions disallow punitive damage recoveries after the wrongdoer has died.² At present, approximately thirty-one jurisdictions in addition to Iowa follow this approach.³ Most of these jurisdictions (like Iowa) do so because of appellate court rulings, rather than legislative enactments expressly prohibiting punitive damage recoveries.⁴ In fact, in a number of jurisdictions that follow the majority rule, there are general survival statutes similar to Iowa Code section 611.20.⁵ Nevertheless, their courts found that punitive damage recoveries did not survive the death of the tortfeasor.

The minority view allows recovery of punitive damages even when the wrongdoer has died.⁶ But only about eleven jurisdictions have adopted this position. And it would be difficult to argue there is a trend toward it. For example, within the last decade, supreme courts in at least three states have ruled for the first time that punitive damages are not recoverable after the tortfeasor's death.⁷

Finally, our case presents another possible reason why it may be appropriate for punitive damage claims to abate upon the death of the tortfeasor. Here, the decedent Vajgrt entered upon Ernst's property and caused the trees to be removed in 2005, but Ernst did not seek judicial redress until 2009, when he filed a claim in probate against Vajgrt's estate. While no one contests the timeliness of the claim, see Iowa Code § 614.1(4) (five-year statute of limitations for injuries to property), Vajgrt is no longer available to defend himself and testify why he did not act with “willful and wanton disregard for the rights or safety of another.” Id. § 668A.1(1)(a ). In a circumstance in which the actor's state of mind is important, direct evidence of that state of mind is no longer available.

This argument can be pressed too far. Under the rule in Sheik, punitive damages may not be recovered if the tortfeasor dies before judgment, even if the tortfeasor had the opportunity to testify on his or her own behalf.

At the same time, we believe this is an area in which all the policy arguments can be pressed too far. For example, we doubt that the typical tortfeasor makes a calculation about the possibility of a punitive damage award against his or her estate, should he or she die before judgment. Thus, the marginal deterrence gain from a rule allowing punitive damages to be awarded against decedent's estate seems to us relatively small. All the more reason, therefore, to defer to our established precedents and the legislature's prior decisions not to disturb them.

IV. Conclusion.

For the foregoing reasons, we affirm the judgment of the district court, including its refusal to award punitive damages against Vajgrt's estate.

AFFIRMED.

I write to concur specially. I agree with the well-reasoned dissent. If we were to develop the common law further in this area, I might overrule our prior precedents for the reasons stated in the dissent and allow the court to award punitive damages awarded against the estate of a deceased tortfeasor. However, when the legislature jumped into the arena of punitive damages in 1986, it left most of our common law rules regarding punitive damages intact. In this instance, the legislature's inaction as to these common law rules tips the scales not to overturn a precedent in existence when the legislature passed Iowa Code chapter 668A (2009). Accordingly, I am unable to join the dissent.

The majority opinion follows the rule adopted by this court in Sheik v. Hobson. In that case, decided in 1884, we summarily concluded “the punitory powers of the law ceased when [the tortfeasor] died,” and we expressed a disinclination to punish the wrongdoer's heirs for their benefactor's malicious conduct. Sheik v. Hobson, 64 Iowa 146, 148, 19 N.W. 875, 875–76 (1884). Although this court has continued to follow the holding announced in Sheik since it was decided, I believe the rationale supporting the rule is gravely flawed, and I therefore would reverse and remand.

While acknowledging the importance of the doctrine of stare decisis to the rule of law, this court has not hesitated to renounce flawed common law rules. Kersten Co. v. Dep't of Soc. Servs., 207 N.W.2d 117, 121 (Iowa 1973). Our willingness to revisit such rules finds its source in the sensible notion that fealty to stability in the law “should not be invoked to maintain a clearly erroneous result simply because that's the way it has been in the past.” Id. This principle recognizes the reality that courts sometimes make mistakes and concedes “we should be as willing to correct our own mistakes as we are those of others.” Id. In my view, this is one of those times.

In rejecting the idea that punitive damages should not be recoverable against a tortfeasor's estate, the Arizona Supreme Court has noted:

There is no logical reason why courts should allow a punitive award against a defendant who survives a judgment, but deny it where death occurs earlier. Suppose, for example, two individuals commit equally culpable and outrageous acts. One is comatose and, for all practical purposes, has no reasonable chance of recovery. The other is dead. Is there a way to explain why the unconscious tortfeasor would have his assets exposed to punitive liability, while the deceased's estate would be immunized from it?

Haralson v. Fisher Surveying, Inc., 31 P.3d 114, 118 (Ariz.2001). Although courts following the majority rule have offered explanations for the rule immunizing tortfeasors ‘ estates from punitive damage judgments, I find none of them persuasive.

Perhaps the most common explanation—one conclusorily noted by this court shortly after the Civil War—suggests the purpose of punishment cannot be achieved against a deceased tortfeasor. Sheik, 64 Iowa at 147–48, 19 N.W. at 875–76. While this proposition has some logical appeal, I believe the law should, for purposes of punishment, view punitive damages as an appropriate means to accomplish a form of retribution against the departed. A tortfeasor's testamentary or intestate transfer of assets can have an impact on the lives of survivors long after the tortfeasor's death. Just as his predeath misconduct can have injurious consequences long after his death, a tortfeasor reaches beyond the grave to effectuate property transfers through his estate. Although the deceased tortfeasor is not physically present to personally experience the retributive effects of any punitive damage judgment against his estate, I believe it is reasonable to view the disruption of his preferred plan of postdeath asset distribution as a form of punishment of the deceased tortfeasor. Accordingly, I believe we were simply wrong when we concluded in Sheik that the power of the law to punish a deceased tortfeasor expires with his death.

A second explanation offered by courts following the majority rule posits that innocent beneficiaries should not suffer consequences for the willful and wanton misconduct of benefactor-tortfeasors. In my view, this notion misses the mark. A punitive damage award against the tortfeasor's estate effects no punishment on the beneficiaries. The beneficiaries of the tortfeasor's estate are affected by all manner of their benefactor's predeath choices and conduct. In some instances a benefactor's predeath choices and conduct enhance, and in other instances diminish, the economic outcomes for his beneficiaries. For better or worse, estate beneficiaries experience the consequences of their benefactor's predeath decisions and conduct for which they are not legally or morally responsible. When a benefactor's predeath choices or conduct consistent with the law adversely affect the amount of assets available for distribution from his estate, beneficiaries are not generally shielded or held harmless. They take whatever assets are available to them from the estate consistent with the prevailing law. As the Intermediate Court of Appeals of Hawaii has observed:

The fact that the size of the tortfeasor's estate would be reduced is not a valid reason for not entering the judgment for punitive damages against the tortfeasor's estate. The beneficiaries of the estate of the tortfeasor have no right or entitlement to more than the tortfeasor would have had if he or she had lived, or to more than the net of the tortfeasor's estate after payment of all legal obligations, including judgments against the estate for punitive damages.

Kaopuiki v. Kealoha, 87 P.3d 910, 928 (Haw.Ct.App.2003).

Where the legislature has not directed otherwise, the common law of Iowa should allow punitive damage judgments against estates. The contrary rule announced in Sheik comes at far too great a cost to the legitimate purpose of punishment served by punitive damage judgments.

But aside from the question of whether the purpose of punishment can, and as I believe, it should, be achieved through a punitive damage remedy against the estate of a tortfeasor who willfully and wantonly injures another, I would overrule Sheik in furtherance of the purpose of deterrence alone. See Penberthy v. Price, 666 N.E.2d 352, 356–57 (Ill.App.Ct.1996) (finding a sufficient deterrent purpose for punitive damages against a tortfeasor's estate even if the purpose of tortfeasor punishment is not achieved). As the majority opinion correctly notes, the goal of deterrence may be viewed specifically and generally. In the context of specific deterrence, the inquiry is whether a specific tortfeasor would be motivated by the prospect of his liability for punitive damages to refrain from willful and wanton misconduct. In the context of general deterrence, the question is whether other potential actors will tend to avoid willful and wanton misconduct as a consequence of a punitive damage judgment against the specific tortfeasor's estate. I believe a common law rule authorizing a judgment for punitive damages against the estate of a tortfeasor who willfully or wantonly injured another powerfully serves as a deterrent in both contexts.

The tortfeasor who understands the distribution of the assets in his estate could be disrupted by a judgment for punitive damages—should he die as a consequence of his willful or wanton misconduct against another or from other causes prior to the entry of a civil judgment—will likely be deterred by the prospect. The purpose of deterrence is clearly advanced when a living, potential tortfeasor knows his estate plan, usually benefitting a spouse, children, family, or friends, will be disrupted by a punitive damage judgment if he engages in willful and wanton tortious conduct, whether he survives the imposition of judgment or not. The rule announced in Sheik and reaffirmed in this case by the majority militates against the purpose of specific deterrence for certain tortfeasors, such as one who is terminally ill or elderly or one who is contemplating a willful or wanton act calculated to cause his own death and harm another, by assuring them a crude advantage over the tortfeasor who survives his willful and wanton tort and civil judgment.

Deterrence in the general sense would also be maximized by a rule allowing judgments for punitive damages against tortfeasors ‘ estates. Others perceiving judgments for punitive damages against tortfeasors' estates will be deterred from willful or wanton misconduct, knowing that their estate plans and loved ones will be similarly affected by their willful and wanton misconduct. The extraordinary importance of general deterrence alone justifies, in my view, the reversal of Sheik and the adoption of a new rule. Accordingly, I respectfully dissent.

FOOTNOTES

1.  Ernst did not assert the statutory claim for treble damages that is available when a person “willfully injur[es] any timber, tree, or shrub on the land of another.” Iowa Code § 658.4 (2009); see also Johnson v. Tyler, 277 N.W.2d 617, 618–19 (Iowa 1979) (holding a plaintiff cannot recover both treble damages under section 658.4 and punitive damages under the common law). We assume Ernst did not bring such a claim because the statute of limitations for actions seeking a statutory penalty had expired. See Iowa Code § 614.1(2) (two-year statute of limitations applies to actions “for a statute penalty”).

2.  See Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Action as Surviving Death of Tortfeasor or Person Wronged, 30 A.L.R.4th 707, 712–13 (1984); Timothy R. Robicheaux & Brian H. Bornstein, Punished, Dead or Alive: Empirical Perspectives on Awarding Punitive Damages Against Deceased Defendants, 16 Psychol. Pub. Pol'y & L. 393, 413 (2010) (“The majority of jurisdictions that have considered the issues have barred punitive damages against deceased defendants, but courts usually must interpret civil statutes that are silent on the issue.”).

3.  The following jurisdictions currently adhere to the majority approach: Idaho Code Ann. § 5–327(1) (West, Westlaw through 2011 Chs. 1–335); Vt. Stat. Ann. tit. 14, § 1454 (West, Westlaw through 2011 Sess. No. 28); Fehrenbacher v. Quackenbush, 759 F.Supp. 1516, 1521–22 (D.Kan.1991) (applying Kansas law); Sanchez v. Marquez, 457 F.Supp. 359, 364 (D.Colo.1978) (applying Colorado law) (currently codified at Colo.Rev.Stat. Ann. § 13–20–101(1) (West, Westlaw through July 1, 2011)); Doe v. Colligan, 753 P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 31 P.2d 389, 395 (Cal.1934) (subsequently codified at Cal.Civ.Proc.Code § 377.42 (1992)); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938–40 (D.C.1995); Lohr v. Byrd, 522 So.2d 845, 846–47 (Fla.1988); Morris v. Duncan, 54 S.E. 1045, 1046–47 (Ga.1906) (subsequently codified at Ga.Code Ann. § 9–2–41 (West, Westlaw through 2011 Reg. Sess.)); Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135, 138–40 (Ind.2005); Stewart v. Estate of Cooper, 102 S.W.3d 913, 915–16 (Ky.2003); Edwards v. Ricks, 30 La. Ann. 926, 928 (1878); Prescott v. Knowles, 62 Me. 277, 279 (1874) (currently codified at Me.Rev.Stat. Ann. tit. 18–A, § 3–818 (West, Westlaw through 2011 1st Reg. Sess.)); Wilkens v. Wainwright, 53 N.E. 397, 397–98 (Mass.1899) (currently codified at Mass. Gen. Laws Ann. ch. 230, § 2 (West, Westlaw through 2011 1st Annual Sess. Ch. 67)); Thompson v. Estate of Petroff, 319 N.W.2d 400, 408 (Minn.1982); Hewellette v. George, 9 So. 885, 887 (Miss.1891) (subsequently codified at Miss.Code Ann. § 91–7–235 (West, Westlaw through 2011 legislative sessions), overruled on other grounds by Glaskow ex rel. Denton v. Glaskow, 614 So.2d 906, 907 (Miss.1992); Tietjens v. Gen. Motors Corp., 418 S.W.2d 75, 88 (Mo.1967); Allen v. Anderson, 562 P.2d 487, 489–90 (Nev.1977) (subsequently codified at Nev.Rev.Stat. Ann. § 41.100(2) (West, Westlaw through 2010 Special Sess.)); Jaramillo v. Providence Wash. Ins. Co., 871 P.2d 1343, 1350–52 (N.M.1994); Gordon v. Nathan, 352 N.Y.S.2d 464, 465 (App.Div.1974) (currently codified at N.Y. Est. Powers & Trusts Law § 11–3.2(a)(1) (McKinney, Westlaw through 2011 Sess.)); Harrell v. Bowen, 635 S.E.2d 498, 500 (N.C.Ct.App.2006); Mongold v. Estate of Gilbert, 758 N.E.2d 1245, 1247–49 (Ohio Ct.C.P.2000); Morriss v. Barton, 190 P.2d 451, 459–60 (Okla.1947); Ashcraft v. Saunders, 444 P.2d 924, 926–27 (Or.1968) (currently codified at Or.Rev.Stat. Ann. § 30.080 (West, Westlaw through 2011 emergency session)); Aldrich v. Howard, 8 R.I. 125, 127 (1864) (currently codified at R.I. Gen. Laws Ann. § 9–1–8 (West, Westlaw through Jan. 2010 Sess. Ch. 321)); Olson–Roti v. Kilcoin, 653 N.W.2d 254, 260–62 (S.D.2002); Hayes v. Gill, 390 S.W.2d 213, 217 (Tenn.1965); In re Estate of Garza, 725 P.2d 1328, 1330 (Utah 1986); Dalton v. Johnson, 129 S.E.2d 647, 650–51 (Va.1963) (subsequently codified at Va.Code Ann. § 8.01–25 (West, Westlaw through 2011 Reg. Sess.)); McWilliams v. Bragg, 3 Wis. 424, 431 (1854) (currently codified at Wis. Stat. Ann. § 895.02 (West, Westlaw through 2011 Act 31)); Parker v. Artery, 889 P.2d 520, 524–25 (Wyo.1995); see also Restatement (Second) of Torts §§ 908 cmt. a, 926(b) (1979).

4.  Seventeen of the thirty-one jurisdictions referenced in the previous footnote deny punitive damage awards against tortfeasor estates as a matter of judicial precedent, despite the lack of any statute directly on point. Furthermore, in a number of the remaining fourteen jurisdictions, the statutes in question were adopted after appellate courts had already ruled that punitive damages were not recoverable after the wrongdoer died.

5.  Alaska Stat. Ann. § 09.55.570 (West, Westlaw through 2010 2nd Reg. Sess.); D.C.Code § 12–101 (West, Westlaw through May 10, 2011); Fla. Stat. Ann. § 46.021 (West, Westlaw through July 1, 2011); Ind.Code Ann. § 34–9–3–1 (West, Westlaw through 2011); Minn.Stat. Ann. § 573.01 (West, Westlaw through 2011 Reg. Sess. Ch. 19).

6.  The following jurisdictions currently follow this rationale: Ellis v. Zuck, 546 F.2d 643, 644–45 (5th Cir.1977) (applying Alabama law); In re Thomas, 254 B.R. 879, 887 (D.S.C.1999) (applying South Carolina law); Haralson v. Fisher Surveying, Inc., 31 P.3d 114, 115 (Ariz.2001); Estate of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517, 521–22 (Del.2001); Kaopuiki v. Kealoha, 87 P.3d 910, 924–28 (Haw.Ct.App.2003); Penberthy v. Price, 666 N.E.2d 352, 354–57 (Ill.App.Ct.1996); Tillett v. Lippert, 909 P.2d 1158, 1161–62 (Mont.1996); G.J.D. v. Johnson, 713 A.2d 1127, 1129–31 (Pa.1998); Hofer v. Lavender, 679 S.W.2d 470, 474–75 (Tex.1984); Perry v. Melton, 299 S.E.2d 8, 11–13 (W.Va.1982); see also Munson v. Raudonis, 387 A.2d 1174, 1177–78 (N.H.1978) (stating that although New Hampshire law does not allow for punitive damages, compensatory damages survive the death of the tortfeasor and the “compensatory damages awarded may reflect the aggravating circumstances” when wanton, malicious, or oppressive conduct is involved).

7.  See Crabtree, 837 N.E.2d at 139; Stewart, 102 S.W.3d at 916; Olson–Roti, 653 N.W.2d at 260–62.

MANSFIELD, Justice.

All justices concur except WIGGINS and APPEL, JJ., who concur specially, and HECHT J., who dissents.APPEL, J., joins this special concurrence.

http://www.lombardilaw.com/library/punitive-damages-against-an-estate-wrongdoer-has-died.cfm

The idea that somehow the Iowa Supreme Court operates in secrecy is preposterous and leads me back to the Law of Molly. Whenever there is thunder, our dog Molly hides her head under the bed as if that alone will protect her. The photo is Molly after the thunder stopped and she finished hiding her head - just as the Vander Platts group wants you to do. Each is acting foolish.

In other news the Iowa Supreme Court got it right when they rejected the speedier but more secret process of taking away a lawyer’s license. See the Des Moines Register story, Court rejects lawyer suspension secrecy, by Lee Rood. 

Let's have Miley Cyrus help us today on the beaches of Tybee Island.

If you listen and believe in the holy Grail of legal marketing you need LinkedIn + FaceBook + AVEO (or whatever it's called) + Twitter or else you're just missing out on all the digital chatter boxes who may in the future need your services. The content on most of these sites is pure garbage. The content amounts to nothing more than noise that pollutes the digital airways, but is supposed make you feel important; it’s said that it makes your site important b/c it's the noise that counts. But really it only counts towards the numbers the owner of the website needs to justify the next IPO crapshoot.

This reminds me of 2007 and commercial real estate. My warning to the commercial realtors applies equally to lawyers and Internet carpetbaggers. The most important asset we have working for us is our credibility. Credibility with the general public equates to trust. The commercial realtors and brokers gambled theirs away selling a dream that never existed to unsuspecting people. The stockbrokers made and are remaking the same mistake with trust. Internet marketing carpetbaggers are jumping on board, first with Y2K and now with digital media that will glow red hot only to die a quick and painful death. If it’s not making money it’s simply not a business. What kind of business can survive in a capitalist society that simply loses money?  

Like value investors the most important asset you own is your reputation. Because when trust your "client" or "customer" has in you goes, it takes a long time for them to forget the distrust they felt when it all blew up in their face.