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Pluid v. B.K. (11/28/97), 948 P 2d 981
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK PLUID, )
) Supreme Court Nos. S-7506/7525
Cross-Appellee, ) Superior Court No.
) 3AN-94-5397 CI
B.K., ) O P I N I O N
Appellee/ ) [No. 4911 - November 28, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: D. Scott Dattan, Law Offices of
D. Scott Dattan, Anchorage, for Appellant/Cross-Appellee. Steven
D. Smith, Law Offices of Steven D. Smith, P.C., Anchorage, for
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
Frank Pluid was found liable, after a bench trial, for
committing acts of sexual battery against B.K., the child of a
woman with whom Pluid lived. The judge, sitting as the finder of
fact, awarded both compensatory and punitive damages. Pluid
appeals on the ground that B.K. failed to present sufficient
evidence to justify the trial court's award of damages for B.K.'s
future medical expenses. He also argues that the award of punitive
damages was excessive. B.K. cross-appeals the trial court's
refusal to award damages for her past medical expenses. For the
reasons that follow, we are unpersuaded by Pluid's appeal, we do
not address B.K.'s cross-appeal, and we affirm.
II. FACTS AND PROCEEDINGS
During January and February of 1989, B.K. was living with
her mother and two brothers in Pluid's home. [Fn. 1] B.K.'s mother
and Pluid had been residing with each other for approximately five
years. B.K., her mother, and her brothers moved out of Pluid's
house in the latter part of February 1989.
At trial, B.K. testified that Pluid committed a sexual
assault upon her when she was twelve years old. The assault
consisted of Pluid taking B.K. into his bedroom and asking her if
she wanted to "snuggle." He rubbed her chest and genitals and
attempted to penetrate her. He was unsuccessful at penetration and
masturbated on her instead. After the assault, he took steps to
prevent its discovery, including instructing B.K. not to tell
anyone what he had done to her. She testified that other assaults
followed this first one. She was assaulted more than once and at
least "a couple of times." Prior to trial, she informed the police
that she had been assaulted four times.
Pluid's work was of such a nature that he was away from
home for two-week periods of time, then home for one. At some
point after the assaults, while Pluid was away, B.K. undertook to
tell her brother what Pluid had done to her. After she started to
tell him, but before she could finish, her mother overheard the
conversation and intervened. B.K. told her mother the whole story.
B.K.'s family moved out of Pluid's home shortly thereafter.
Pluid testified that he did not do these things. He
claimed that B.K.'s allegations were the product of her mother's
having instilled a false memory in her mind. Pluid posited that it
was actually B.K.'s biological father who sexually assaulted her.
He claimed that the true reason that B.K. and the rest of her
family moved out of his house was that he had ordered them to
leave. He contended that the allegations of sexual assault were
retribution by B.K.'s mother for kicking out her and the family.
The trial court found B.K. credible and did not believe
Pluid's denials or his vendetta hypothesis. Thus, the court found
the evidence "clear and convincing"that Pluid had committed "acts
of sexual battery"against B.K. Treating all of the acts of sexual
battery as a single tortious event for purposes of calculating
damages, the court concluded that the evidence showed that B.K.
would need approximately one and a half years of counseling and "an
average of a visit per year thereafter." The court determined that
this would amount to 100 sessions with a counselor at a cost of
$120 per session. Therefore, it awarded B.K. $12,000 for these
future medical expenses. The court also awarded B.K. $25,000 for
past and future pain and suffering.
Finally, the court found by clear and convincing evidence
that Pluid acted outrageously. For this outrageous conduct, the
court awarded punitive damages in the amount of five times the
compensatory damages -- $185,000. The court noted that the amount
exceeded the criminal fine for a single offense of sexual abuse of
a minor but found this to be a reasonably proportionate penalty in
light of the evidence that the conduct occurred more than once and
not more than four times. Pluid moved for reconsideration of these
awards and the motion was denied.
The court declined to award B.K. compensation for her
past medical expenses stemming from the attacks on the ground that
the evidence supporting these expenses was too vague. B.K. moved
for reconsideration of this ruling and that motion was also denied.
This appeal and cross-appeal followed.
III. STANDARD OF REVIEW
The determination by a trial court sitting as a finder of
fact as to the proper amount to be awarded as compensatory damages
is not to be disturbed on appeal unless it is clearly erroneous.
Morrison v. State, 516 P.2d 402, 405 (Alaska 1973). So long as the
trial judge "follows the correct rules of law, and his estimation
appears reasonable and is grounded upon the evidence, his finding
will remain undisturbed." Id.
We will overturn an award of punitive damages entered by
a court sitting as the trier of fact only if it is manifestly
unreasonable, the result of passion or prejudice, or entered in
disregard of rules of law. See Alaska Statebank v. Fairco, 674
P.2d 288, 296 (Alaska 1983).
We review questions of law using our independent
judgment. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).
Under this standard, we have the duty "to adopt the rule of law
that is most persuasive in light of precedent, reason and policy."
Id. (quoting Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987)).
IV. ANALYSIS AND DISCUSSION
A. Did the Trial Court Err in Awarding B.K. $12,000 for
Future Medical Expenses?
Pluid argues that the trial court erred in its
determination of the amount to be awarded for B.K.'s future medical
expenses. The trial court found that B.K.'s expenses would amount
to $12,000, based on its conclusion that she would require weekly
counseling sessions for a year and a half and yearly sessions
thereafter for a total of 100 sessions of therapy. The court
estimated that each session would cost $120.
Pluid contends that B.K. failed to show by a
preponderance of the evidence that she would require this amount of
therapy. This may be true. [Fn. 2] However, Pluid has
misconceived the quantum of evidence necessary to support an award
of damages. It is, of course, the law that the fact of damages
must be proven by a preponderance of the evidence. "To recover for
future medical expenses one must prove to a reasonable probability
that they will occur." Blumenshine v. Baptiste, 869 P.2d 470, 473
(Alaska 1994) (citing Maddocks v. Bennett, 456 P.2d 453, 458
(Alaska 1969)). Once the fact of damages has been proven to a
reasonable probability, the amount of such damages, on the other
hand, need only be proven to such a degree as to allow the finder
of fact to "reasonably estimate the amount to be allowed for [the]
item [of damages]." Id. (citing Henderson v. Breesman, 269 P.2d
1059, 1061-62 (Ariz. 1954)). The point was stated clearly by our
opinion in Morrison v. State:
Certainly in many cases, as is true in this
case, some items of damage cannot be fixed with mathematical
precision. In those instances the trial judge is necessarily
forced to estimate and as long as he follows the correct rules of
law, and his estimation appears reasonable and is grounded upon the
evidence, his finding will remain undisturbed.
516 P.2d at 405.
At trial, evidence was presented that a counseling
session costs between $100 and $150. These figures, coupled with
the expert's estimation of the number of counseling sessions B.K.
will need to attend, provided a reasonable basis for estimating the
amount of damages for B.K.'s future medical expenses. Furthermore,
$12,000 is a reasonable estimation, given the above evidence, of
the amount of B.K.'s future medical expenses. The trial judge did
not commit clear error.
B. Did the Trial Court Err in Awarding $185,000 in Punitive
1. Was the punitive damages award excessive?
A punitive damage award is excessive if it is
manifestly unreasonable, resulting from passion or prejudice or
disregard of the rules of law. Relevant factors include the
compensatory damage amount, magnitude of the offense, importance of
the policy violated, and the defendant's wealth.
Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 949 (Alaska 1986)
(citations omitted). Pluid next argues that the punitive damages
award is excessive because it was based on passion or prejudice on
the part of the trial judge. He finds evidence of this passion or
prejudice in the ratio of punitive damages to compensatory damages.
The award of punitive damages was five times that of compensatory
damages. [Fn. 3] Pluid recognizes, and this court has often
stated, that "[s]imply pointing to the ratio does not establish
excessiveness." Alaska Ins. Co. v. Movin' On Constr., Inc., 718
P.2d 472, 475 (Alaska 1986). The ratio between compensatory and
punitive damages is merely a factor to be taken into account and we
have never laid out a definitive permissible ratio. Id. There may
be cases in which the comparison is of no use in making a
determination as to excessiveness. Clary Ins. Agency v. Doyle, 620
P.2d 194, 205 (Alaska 1980).
To bolster his claim of passion or prejudice, Pluid
points to the fact that in making its punitive damage award the
trial court referred to criminal penalties. He also points to the
court's "obvious disappointment"that certain damaging evidence was
inadmissible. He argues that these factors, coupled with the
ratio, show impermissible motive on the part of the judge.
In its findings and conclusions, the superior court
[T]his amount [of punitive damages] exceeds
the criminal fine for a single offense of sexual abuse of a minor
in the first degree under the present law and [the court] finds
this to be reasonably proportionate as a penalty in light of the
evidence that the conduct occurred more than once and not more than
Pluid argues that he "was never convicted of sexual abuse of a
minor in any degree for this incident, and therefore reference to
criminal penalties is inappropriate and evidence of prejudice on
the part of the Superior Court." The superior court did not err in
taking the criminal penalty into account when calculating punitive
damages. The court's reference to criminal penalties does not
indicate passion or prejudice.
During trial, the plaintiff attempted to introduce
evidence that Pluid made sexual advances toward a former
babysitter. Pluid objected and B.K. made the offer of proof that
the testimony would fit an exception to the evidence rules against
character evidence. The babysitter was allowed to testify, but the
testimony failed to "fit"the exception. In its findings and
conclusions, the superior court wrote:
While the rule [Evidence Rule 404(b)(2)] is
designed for criminal prosecution -- the most commonly found
circumstance in which the problem arises -- the facts and the proof
problems surrounding this civil prosecution for what would be a
crime if criminally prosecuted call for the application of the same
kind of common sense rule. Unfortunately, analysis of [the
babysitter's] testimony demonstrates that even if believed, that it
fails to meet the criteria of the exception. . . . Thus, the
court, in effect, sustains the defendant's objection after the
fact, and gives [the babysitter's] testimony no weight.
Pluid argues that the trial court's "obvious disappointment that
[the babysitter's] testimony was inadmissible, clearly indicate[s]
that the lower court was influenced by passion or prejudice in
rendering its judgment." We find, to the contrary, no sign that
the trial court was influenced by the inadmissible evidence. In
fact, the trial court appears to have given the testimony no
weight. In effect, Pluid asks us to find that the trial court was
being disingenuous when it stated that it would disregard the
evidence and this we decline to do.
In sum, the ratio of punitive damages to compensatory
damages, the reference to criminal penalties, and the reference to
the inadmissible testimony do not, individually or taken as a
whole, show passion or prejudice on the part of the trial court in
making the punitive damages award. On the other hand, the
magnitude of Pluid's offense and the importance of the public
policy violated both strongly show that the punitive damages award
is not excessive. Pluid was found, by clear and convincing
evidence, to have sexually assaulted, two to four times, a child
living in his home. [Fn. 4]
2. Does the lack of evidence on Pluid's wealth
undermine the award?
Lastly, Pluid argues that the punitive damages award is
excessive as a matter of law because B.K. did not put on evidence
of Pluid's net worth at trial. The wealth of the defendant is one
factor to be taken into account in determining whether an award of
punitive damages was excessive. Alaskan Village, 720 P.2d at 949.
There is a split in authority among the courts of other
states as to whether evidence of the defendant's wealth must be
introduced in order for a punitive damages award to be upheld.
In Bundy v. Century Equipment Co., 692 P.2d 754 (Utah
1984), the court held a punitive damages award to be excessive as
a matter of law in the absence of any evidence regarding the
defendant's assets or net worth. Id. at 759. The court reasoned
that, because the main purpose of punitive damages is to punish the
defendant, there must be net worth evidence before a judgment can
be made as to whether that punishment was excessive as to that
particular defendant. "Punitive damages should be more than an
inconvenience. . . . Their amount should be sufficient to
discourage [the defendant], or anyone similarly situated, from
repeating such conduct in the future." Id.
Other courts confronting the issue have placed
responsibility for presenting net worth evidence on the defendant
himself. In Hicks v. Lilly Enterprises, Inc., 608 P.2d 186 (Or.
App. 1980), the Oregon court said:
While the wealth of defendant is a relevant
inquiry on the issue of punitive damages, it is not a necessary
element. The evidence is relevant to allow the jury to assess
punitive damages in an amount which would constitute a penalty in
relation to defendant's wealth. The evidence can enure to the
benefit of either party. If defendant's wealth is minimal, the
jury may conclude a small assessment of punitive damages would
properly penalize defendant. Conversely, if defendant's wealth is
substantial, the jury may be convinced that a larger award is
necessary. A defendant which presents no evidence of its financial
worth cannot complain the jury did not have such evidence.
Id. at 189 (citations omitted); see also Romero v. Hariri, 911 P.2d
85, 93 (Haw. App. 1996) (concluding that the failure to show net
worth does not necessarily invalidate a punitive award but only
eliminates a factor with which to gauge the reasonableness of the
award); Rogers v. Florence Printing Co., 106 S.E.2d 258, 262 (S.C.
1958) (noting that the defendant "should not be heard to complain
that the jury made its award without such [net worth] information,
where he himself testified and did not offer it").
We find the Oregon method preferable to that of the Utah
courts. The defendant is uniquely situated to put on evidence of
his own net worth. He may choose not to do so if he concludes that
it would not be to his benefit. If a defendant with a small net
worth is before the court, he may make sure that the finder of fact
is aware of his financial situation. A defendant who does not put
on evidence of his own net worth cannot, later, complain of its
absence. We reject Pluid's argument on this point as well.
C. The Cross-Appeal: Did the Trial Court Err When it
Refused to Award Damages for B.K.'s Past Medical Expenses?
B.K. cross-appealed claiming that the trial court should
have awarded her damages for her past medical expenses. However,
the cross-appeal is asserted contingently. It is to be considered
only if the case is remanded on appeal. Since we affirm, we do not
address the cross-appeal.
We state the historical facts as found by the trial court.
Neither party has contested their accuracy.
The expert at trial testified:
I believe that she [B.K.] would in all
likelihood require probably another year [of weekly counseling
That does not mean that she would need to
continue to meet at the same frequency that she has been meeting.
That year is an estimate. It could be longer, a year and a half
. . . .
Again, the compensatory damages awarded were $12,000 for
future medical expenses and $25,000 for past and future pain and
suffering for a total of $37,000. $37,000 x 5 = $185,000, the
amount of the punitive damages award.
Because we uphold the trial court's award of compensatory
damages we do not address Pluid's argument that the punitive
damages award should be decreased in proportion to any decrease in
the award of compensatory damages.