§23.8 Election of Treble vs. Punitive Damages

The Case: Concrete Spaces, Inc. v. Sender , 2 S.W.3d 901 (Tenn. 1999).

The Basic Facts: Plaintiffs sought compensatory, punitive and treble damages in action for breach of contract, negligent misrepresentation, fraudulent misrepresentation and violation of the Tennessee Consumer Protection Act. Plaintiffs' claims were based on alleged deception by defendants regarding the quality and availability of space in Cummins Station and on defendants' alleged intentional and systematic plan of harassment and lack of cooperation carried out to force the plaintiffs to abandon their leases so that the defendants could lease the space to others on more favorable terms. Plaintiff prevailed and defendants appealed because punitive damages and treble damages may not be recovered in the same action. The Court of Appeals vacated the award of punitive damages and remanded for a determination of whether the compensatory damage award should be trebled in accordance with the Consumer Protection Act.

The Bottom Line:

• "We granted this appeal to address the application of the election of remedies doctrine in Tennessee and to clarify the proper procedure to be implemented when a plaintiff is entitled to both punitive damages in conjunction with a common law claim and to multiple damages pursuant to a statutory remedy. We have determined that a plaintiff is entitled to a calculation of the amount of punitive damages and multiple damages that are warranted under each theory of liability. Only after these assessments are made is the plaintiff required to make an election of remedies. Because this procedure was not implemented in this case, we remand the cause to the trial court for a new trial." 2 S.W.3d at 903.
• "Almost every jurisdiction addressing this question has concluded that recovery of both multiple statutory damages and punitive damages constitutes an impermissible double recovery because the two forms of enhanced damages serve the same functions. The purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter others from committing similar wrongs in the future. See Coffey v. Fayette Tubular Prod., 929 S.W.2d 326, 328 (Tenn. 1996); Hodges, 833 S.W.2d at 900. Several Tennessee statutory schemes achieve the same objectives of punishment and deterrence through multiple damage provisions, which allow for compensatory damages to be trebled if the defendant's conduct rises to a specified level of culpability. Because multiple damages are punitive in nature and not intended to compensate for the plaintiff's injury, see Smith Corona Corp. v. Pelikan, Inc., 784 F. Supp. 452, 483 (M.D. Tenn. 1992); Lien v. Couch, [993 S.W.2d 53, 58 (Tenn. Ct. App. 1998)], a plaintiff cannot recover both punitive damages and multiple damages in the same cause of action, even if they are each available, because receipt of both forms of enhanced damages violates the principle against double recovery. See Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d 105, 119-120 (6th Cir. 1977); Lorentz, [834 S.W.2d at 320 (Tenn. Ct. App. 1992)]." Id. at 906-907.
• "When a plaintiff is entitled to both punitive damages in conjunction with a common law claim for relief and to treble damages under a statutory scheme, the majority of jurisdictions employ a version of the election of remedies doctrine to prevent double recovery of enhanced damages. Commentators suggest that two general trends have developed with respect to how and when the plaintiff's election is to be implemented. The most prevalent approach allows the plaintiff to submit to the fact finder all theories of recovery, including the standards for both punitive damages and multiple damages. If the jury (and judge, in some instances) determines that the plaintiff is entitled to both forms of enhanced damages, the plaintiff may request that the amount of damages under each remedy be determined before making an election of which remedy he or she would like the judgment to reflect." Id. at 908.
• "Two objectives are achieved by allowing the plaintiff to select an award of damages after the judge and jury have decided all the issues surrounding liability and the entitlement and amount of enhanced damages: one, improper double recovery is prevented, and two, the goal of deterrence is realized. See Eastern Star, Inc. v. Union Bldg. Materials Corp., 712 P.2d 1148, 1159 (Haw. 1985)." Id. at 908
• "We agree with the reasoning of the majority of jurisdictions confronted with this issue that it would be unfair to require election before a determination of liability and entitlement to punitive damages and multiple damages has been made. In so concluding, we agree with the plaintiffs that this approach does not unduly burden a defendant who has been found liable under more than one theory of recovery. The majority rule simply allows a plaintiff to realize the maximum recovery available under the fact finders' findings. Given the punitive and deterrent purposes of punitive and multiple damages, such a result is entirely proper." Id. at 909.
• "When a plaintiff pursues relief under more than one theory of recovery, the risk is great that the jury will become confused as to the types of enhanced damages permissible under each theory of liability. This risk is of particular concern when the jury is merely asked to return a general verdict. When using a general verdict it is difficult to ascertain which portion of a compensatory award is attributable to a violation of the relevant statute, which might be trebled, and which portion is attributable to the defendant's breach of a common law duty, which might serve as a basis for an award of punitive damages. Both to preserve the jury's findings and to facilitate the plaintiff's ability to elect damages, it is essential that the jury's liability determinations reflect the underlying claims upon which they are based. No two jury trials will be alike, and there are no blanket rules or catchall standards that can be articulated to fully explain how instructions and special interrogatories should be presented to juries in every case. However, in order to avoid the confusion that has occurred in this case, the following general, common sense principles should guide attorneys and judges in preparing both jury instructions and special verdict forms in cases involving multiple theories of liability and various types of damages." Id. at 909-910.
• "Courts should provide separate jury instructions for each theory of liability that clearly explain the elements of each claim, thus enabling the jury to consider whether the plaintiff has met its burden of proof with respect to each. The standards for any available enhanced damages should be explained in conjunction with the instructions for each underlying theory of recovery. For example, the intentional, fraudulent, malicious or willful standard for punitive damages required by Hodges, 833 S.W.2d at 900-901, should be explained within the separate instructions for the underlying common law claims. Likewise, if the jury is to decide the requisite culpability for multiple damages under a statute, an explanation of that standard should be given in conjunction with the instructions for that particular statutory claim." Id. at 910.
• "As the Court of Appeals in this case recognized, the most effective approach in dealing with multiple claims for relief is to require the jury to respond either to a general verdict form accompanied by special interrogatories or to a special verdict form that has been prepared to parallel the instructions to the jury on each claim. [Tenn. R. Civ. P. 49] accords trial courts great latitude in using special verdict forms and tailoring special interrogatories to meet the needs of each unique case." Id. at 910.
• "Special verdict forms should use the same terms as those used in the jury instructions. See Lundquist v. Nickels, 605 N.E.2d 1373, 1389 (Ill. Ct. App. 1992). They should repeat and highlight the salient issues discussed in the instructions. See Kass v. Great Coastal Express, Inc., 676 A.2d 1099, 1107 (N.J. Super. 1996). Inconsistencies with jury instructions and the special verdict form may confuse the jury. See Ladd v. Honda Motor Co., 939 S.W.2d 83, 103 (Tenn. App. 1996)." Id. at 910-11.

Other Sources of Note: Miller v. United Automax , 166 S.W.3d 692, 697 (Tenn. 2005) (holding "because the purpose of the attorney's fees and costs provision is different from the purpose of punitive damages, an award of attorney's fees and costs under the Tennessee Consumer Protection Act is not duplicative of punitive damages.").