§23.7 Election of Punitive Damages and TCPA Fees

The Case: Miller v. United Automax, 166 S.W.3d 692 (Tenn. 2005).

The Basic Facts: Plaintiffs were purchasers of a used automobile who brought an action for misrepresentation and violations of the Tennessee Consumer Protection Act (TCPA) against the seller of the automobile due to damage to the automobile which Plaintiff claims existed prior to the sale and went undisclosed to her by Defendant.

The Bottom Line:

• "Plaintiffs argue that they are entitled to both punitive damages and attorney's fees because the two remedies are not inconsistent with each other nor do they provide double redress for a single wrong. Plaintiffs reason that the only election that needed to be made was between the award of treble damages and punitive damages, and not between the entire elements and remedies of each theory of recovery. Defendant responds that the election was essentially between the two verdicts with their respective recovery schemes, and because Plaintiffs chose punitive damages under the common law claim, they could not also receive the attorney's fees that would be available under the Act. We agree with Plaintiffs." 166 S.W.3d at 696.
• "Tennessee Rule of Civil Procedure 8.01 'grants a plaintiff wide latitude in pleading alternative claims for relief and pursuing an array of theories of recovery in a single action.' Concrete Spaces, Inc. v. Sender, [2 S.W.3d 901, 906 (Tenn. 1999)]. This allows Plaintiffs to seek redress both under common law and under the Tennessee Consumer Protection Act. However, in certain circumstances, a plaintiff is required to elect between remedies." Id.
• "The election of remedies doctrine has two general applications: (1) a plaintiff may be estopped from pursuing additional remedies once a plaintiff has made a choice to pursue a specific remedy in another forum or lawsuit, and (2) a plaintiff may be forced to elect between different remedies 'where the remedies are so inconsistent or repugnant that pursuit of one necessarily involves negation of the other.' Forbes v. Wilson County Emergency Dist. 911 Bd., [966 S.W.2d 417, 421 (Tenn. 1998)] (internal citations omitted). 'For election of remedies to apply, the two remedies sought must be truly repugnant to one another.' Allied Sound, Inc. v. Neely, [909 S.W.2d 815, 822 (Tenn. Ct. App. 1995)]. The purpose behind the election of remedies doctrine is to prevent 'double redress' for a single wrong. Forbes, 966 S.W.2d at 421." Id. at 697.
• "Clearly, Plaintiffs are not pursuing additional remedies in another forum or lawsuit. Thus, the only question is whether the two remedies, punitive damages and attorney's fees, are 'truly repugnant to one another.'" Id.
• "In Concrete Spaces, this Court dealt with the election of remedies doctrine in a case involving a claim under the Tennessee Consumer Protection Act and a claim for negligent misrepresentation. In that case, the issue was whether a plaintiff could receive both punitive damages under the common law claim and treble damages under the Act. We held that such a double recovery was impermissible." Id.
• "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. Because multiple damages are punitive in nature and not intended to compensate for the plaintiff's injury, 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. Concrete Spaces, 2 S.W.3d at 906-07 (internal citations omitted)." Id.
• "Plaintiffs concede that they are not entitled to both treble damages under the Tennessee Consumer Protection Act and punitive damages under common law misrepresentation. Nor do they suggest that they could receive actual damages under both verdicts. This result is consistent with our prior holding in Concrete Spaces, 2 S.W.3d at 906-07. However, unlike Concrete Spaces, this case deals with the recovery of attorney's fees, not treble damages under the Act, in addition to punitive damages." Id.
• "The Tennessee Consumer Protection Act provides that once a trial court finds that there has been a violation of the Act, the court may award the plaintiff 'reasonable attorney's fees and costs.' [Tenn. Code Ann. § 47-18-109(e)(1) (1995)]. Unlike an award of treble damages under the Tennessee Consumer Protection Act, attorney's fees are not punitive in nature. "The potential award of attorney's fees under the Tennessee Consumer Protection Act is intended to make prosecution of such claims economically viable to plaintiff." Killingsworth v. Ted Russell Ford, Inc., [104 S.W.3d 530, 535 (Tenn. Ct. App. 2002)] (citation omitted). On the other hand, punitive damages are designed to punish wrongful conduct and to deter others from such conduct in the future. See Concrete Spaces, 2 S.W.3d at 906-07. 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." Id.
• "Again, the election of remedies doctrine serves only to prevent double redress for a single wrong. See Wimley v. Rudolph, [931 S.W.2d 513, 515 (Tenn. 1996)]; Allied Sound, Inc., 909 S.W.2d at 822. The election is not, as Defendant suggests, between the two separate verdicts, but only between those parts of the recovery that are duplicative. Therefore, while Plaintiffs may not recover both punitive damages and treble damages, they may recover both punitive damages and attorney's fees." Id. at 697-98.

Other Sources of Note: Concrete Spaces, Inc. v. Sender , 2 S.W.3d 901, 911 (Tenn. 1999) (holding that "only after the amount of punitive damages and multiple damages have been assessed is the plaintiff required to make an election between the two types of remedies.").