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Apel v. Katz8/19/1998
te malice, aggravated or egregious fraud, oppression, or insult, or that defendant as principal or master authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate;
"(2) The plaintiff in question has adduced proof of actual damages that resulted from actions or omissions as described in division (B)(1) of this section." (Emphasis added.) Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1690-1691.
Because it cannot be said that the tortious activity for which the Katzes recovered actual damages (i.e., physical damage to vegetation resulting from Apel's driving off the easement) "resulted" from the acts or omissions demonstrating malice, fraud, oppression, or insult (i.e., verbal insults uttered by Apel and directed at the Katz family), the Katzes failed to demonstrate that they were entitled to punitive damages under former R.C. 2315.21(B).
The long-standing rule in Ohio is that " xemplary or punitive damages may not be awarded in the absence of proof of actual damages." Richard v. Hunter (1949), 151 Ohio St. 185, 39 O.O. 24, 85 N.E.2d 109, syllabus. "The purpose of the Richard rule is to keep the punitive damages awarded a mere incident of the cause of action, rather than let it become a cause of action in and of itself. * * * No civil cause of action in this state may be maintained simply for punitive damages." (Emphasis sic.) Bishop v. Grdina (1985), 20 Ohio St.3d 26, 28, 20 OBR 213, 214, 485 N.E.2d 704, 705. Consistent with this rule, former R.C. 2315.21(B) required punitive damages to flow from the same tortious activity causing actual damages.
The judicial policy preferences announced in Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331, cannot trump the unambiguous expression of the General Assembly in former R.C. 2315.21(B). In Moskovitz, the court declined to "establish a rule requiring that malicious conduct giving rise to a claim for punitive damages must independently cause compensable harm before punitive damages may be awarded." Id. at 651, 635 N.E.2d at 343. As noted by the majority, Moskovitz did not apply former R.C. 2315.21(B) because the cause of action predated the effective date of that statute. But we are now squarely faced with conflicting legislative (former R.C. 2315.21 ) and judicial (Moskovitz) views on a nonconsitutional issue, and the General Assembly's view must prevail.
The majority justifies its application of Moskovitz by reasoning that "Moskovitz is not inconsistent with the terms of former R.C. 2315.21(B)." Because I do not read the first paragraph of the syllabus of Moskovitz and former R.C.
2315.21(B) as being amenable to the majority's reconciliation, I dissent. A directed verdict was warranted on the punitive damages issue, and the Katzes are not entitled to a punitive damages award or attorney fees.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing opinion.
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