{ "id": 4150290, "name": "RICHARD HARRELL v. MELVIN BOWEN, Administrator of the Estate of CHELSON EARL PERRY", "name_abbreviation": "Harrell v. Bowen", "decision_date": "2008-01-25", "docket_number": "No. 587PA06", "first_page": "142", "last_page": "150", "citations": [ { "type": "official", "cite": "362 N.C. 142" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "635 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636804 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/635/0498-01" ] }, { "cite": "179 N.C. App. 857", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8240734 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc-app/179/0857-01" ] }, { "cite": "628 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635483 ], "year": 2006, "pin_cites": [ { "page": "3", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0001-01" ] }, { "cite": "618 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633816 ], "year": 2005, "pin_cites": [ { "page": "203", "parenthetical": "\"A motion to dismiss under N.C. R. Civ. P. 12(b)(6) 'is the usual and proper method of testing the legal sufficiency of the complaint.' \" (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970))" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0201-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "807", "parenthetical": "stating that punitive damages \"are usually allowed to punish defendant and deter others\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "pin_cites": [ { "page": "134", "parenthetical": "stating that punitive damages \"are usually allowed to punish defendant and deter others\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "229 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "302", "parenthetical": "\"North Carolina has consistently allowed punitive damages solely on the basis of its policy to punish intentional wrongdoing and to deter others from similar behavior.\" (emphasis added) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "291 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557369 ], "year": 1976, "pin_cites": [ { "page": "113", "parenthetical": "\"North Carolina has consistently allowed punitive damages solely on the basis of its policy to punish intentional wrongdoing and to deter others from similar behavior.\" (emphasis added) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0105-01" ] }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "7", "parenthetical": "citing N.C.G.S. \u00a7 ID-1" }, { "page": "12", "parenthetical": "\"A plaintiff's recovery of punitive damages is fortuitous, as such damages are assessed solely as a means to punish the willful and wanton actions of defendants and, unlike compensatory damages, do not vest in a plaintiff upon injury.\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986939 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "167", "parenthetical": "citing N.C.G.S. \u00a7 ID-1" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0160-01" ] }, { "cite": "129 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "469", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "258 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562682 ], "year": 1963, "pin_cites": [ { "page": "755-56", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0749-01" ] }, { "cite": "135 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "577", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "261 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574501 ], "year": 1964, "pin_cites": [ { "page": "535", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0532-01" ] }, { "cite": "360 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789468 ], "year": 2006, "pin_cites": [ { "page": "387", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0384-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "163" }, { "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "359 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795500 ], "year": 2005, "pin_cites": [ { "page": "784", "parenthetical": "\"A motion to dismiss under N.C. R. Civ. P. 12(b)(6) 'is the usual and proper method of testing the legal sufficiency of the complaint.' \" (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970))" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0782-01" ] }, { "cite": "90 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1956, "pin_cites": [ { "page": "903", "parenthetical": "stating that a statute's caption cannot control the unambiguous text of the statute" } ], "opinion_index": 1 }, { "cite": "243 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624967 ], "year": 1956, "pin_cites": [ { "page": "371", "parenthetical": "stating that a statute's caption cannot control the unambiguous text of the statute" } ], "opinion_index": 1, "case_paths": [ "/nc/243/0364-01" ] }, { "cite": "171 W. Va. 397", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8579538 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "401", "parenthetical": "holding punitive damages could be collected from the estate of a deceased tortfeasor because \"[p]unitive damages in [West Virginia] serve other equally important functions and are supported by public policy interests going beyond simple punishment of the wrongdoer\"" }, { "page": "12", "parenthetical": "holding punitive damages could be collected from the estate of a deceased tortfeasor because \"[p]unitive damages in [West Virginia] serve other equally important functions and are supported by public policy interests going beyond simple punishment of the wrongdoer\"" } ], "opinion_index": 1, "case_paths": [ "/w-va/171/0397-01" ] }, { "cite": "679 S.W.2d 470", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9940978 ], "year": 1984, "pin_cites": [ { "page": "474-75", "parenthetical": "concluding punitive, or exemplary, damages could be collected from the estate of a deceased tortfeasor after discussing the \"equally important considerations other than punishment of the wrongdoer\" recognized in Texas as purposes for punitive damages" } ], "opinion_index": 1, "case_paths": [ "/sw2d/679/0470-01" ] }, { "cite": "594 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2004, "pin_cites": [ { "page": "2" }, { "page": "2-3" }, { "page": "3" }, { "page": "2-3" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 830, "char_count": 18872, "ocr_confidence": 0.761, "pagerank": { "raw": 9.349679196727941e-08, "percentile": 0.5139230124999565 }, "sha256": "672eddbda17263973e2af59e58f544963b1b53e8754abcc4771ff4669f8f3340", "simhash": "1:0a878977376e0072", "word_count": 2991 }, "last_updated": "2023-07-14T21:47:03.529976+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice HUDSON joins in this dissenting opinion." ], "parties": [ "RICHARD HARRELL v. MELVIN BOWEN, Administrator of the Estate of CHELSON EARL PERRY" ], "opinions": [ { "text": "BRADY, Justice.\nIn this case we determine whether, as a matter of law, a claim for punitive damages may be asserted against a decedent\u2019s estate on the basis of his alleged \u201cegregiously wrongful acts.\u201d We hold that it may not and therefore affirm the decision of the Court of Appeals.\nBACKGROUND\nOn 19 May 2005, plaintiff Richard Harrell filed a summons and complaint initiating a civil action against Melvin Bowen (defendant) in his capacity as administrator of Chelson Earl Perry\u2019s (decedent\u2019s) estate. In his complaint, plaintiff stated that he was operating a passenger vehicle traveling westbound on U.S. Highway 64 on 6 June 2002, at approximately 9:45 p.m. He asserted that decedent, who was operating another passenger vehicle traveling eastbound at the time, veered across the median and struck plaintiff\u2019s vehicle. Plaintiff further alleged that decedent was under the influence of alcohol at the time of the incident and otherwise acted negligently and was grossly negligent in violation of several North Carolina motor vehicle safety laws. In his complaint, plaintiff sought compensatory damages for pain and suffering, medical bills, lost wages, and property damage, and he additionally prayed for punitive damages.\nDefendant moved to dismiss plaintiff\u2019s punitive damages claim, pursuant to Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. On 7 November 2005, the trial court conducted a hearing on defendant\u2019s motion and subsequently ordered plaintiff\u2019s claim for punitive damages dismissed with prejudice.\nPlaintiff appealed the trial court\u2019s order to the North Carolina Court of Appeals, which unanimously affirmed the order on 17 October 2006. Plaintiff then petitioned this Court for discretionary review, and we allowed the petition on 3 May 2007.\nANALYSIS\nThe dispositive question before the Court is whether plaintiff is barred as a matter of law from asserting a claim for punitive damages against defendant in his capacity as the administrator of decedent\u2019s estate. See Newberne v. Dep\u2019t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618 S.E.2d 201, 203 (2005) (\u201cA motion to dismiss under N.C. R. Civ. P. 12(b)(6) \u2018is the usual and proper method of testing the legal sufficiency of the complaint.\u2019 \u201d (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970))). As the Court stated in Newbeme, our task in reviewing the trial court\u2019s order dismissing this claim pursuant to Rule 12(b)(6) is to inquire \u201cwhether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.\u201d Id. (citations and internal quotation marks omitted).\nI. \u201cThe Purpose of Punitive Damages\u201d in N.C.G.S. \u00a7 ID-1\nPlaintiff contends that N.C.G.S. \u00a7 ID-1 sets forth the controlling legal theory upon which his claim for punitive damages may rest. This statute provides: \u201cPunitive damages may be awarded, in an appropriate case and subject to the provisions of this Chapter, to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.\u201d N.C.G.S. \u00a7 ID-1 (2005) (emphasis added). Plaintiff asserts that punitive damages may be awarded to deter others from similar wrongful acts, even though it is obvious that decedent could neither be punished for any wrongdoing nor deterred from committing similar wrongful acts in the future.\nIt is axiomatic that \u201c[w]hen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.\u201d See Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006) (citation omitted). This Court has also stated that \u201c[o]rdinarily, when the conjunctive \u2018and\u2019 connects words, phrases or clauses of a statutory sentence, they are to be considered jointly.\u201d Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 535, 135 S.E.2d 574, 577 (1964) (citation omitted). In Sale v. Johnson, this Court recognized a limited number of circumstances in which the conjunctive \u201cand\u201d and the disjunctive \u201cor\u201d could be interchanged by a court when applying a statute, one of which is \u201cio effectuate the obvious intention of the legislature.\u201d 258 N.C. 749, 755-56, 129 S.E.2d 465, 469 (1963) (citations and internal quotation marks omitted).\nContrary to plaintiff\u2019s assertions, we can discern no obvious legislative intent to treat the purposes of punishment and deterrence disjunctively in N.C.G.S. \u00a7 ID-1. The same must be said for the purpose of deterring a defendant and that of deterring others. As this Court has clearly stated, \u201cChapter ID reinforces the common-law purpose behind punitive damages.\u201d Rhyne v. K-Mart Corp., 358 N.C. 160, 167, 594 S.E.2d 1, 7 (2004) (citing N.C.G.S. \u00a7 ID-1). Plaintiff cites no authority preceding the enactment of Chapter ID in 1995 in which this Court held that the purpose of deterring others, standing alone, was sufficient to support an award of punitive damages. In fact, when this Court has identified the purpose of deterring others, that purpose has consistently been coupled with the purpose of punishing a wrongdoer. See, e.g., Newton v. Standard Fire Ins. Co., 291 N.C. 105, 113, 229 S.E.2d 297, 302 (1976) (\u201cNorth Carolina has consistently allowed punitive damages solely on the basis of its policy to punish intentional wrongdoing and to deter others from similar behavior.\u201d (emphasis added) (citations omitted)); Oestreicher v. Am. Nat\u2019l Stores, Inc., 290 N.C. 118, 134, 225 S.E.2d 797, 807 (1976) (stating that punitive damages \u201care usually allowed to punish defendant and deter others\u201d (emphasis added)). Nor has this Court interpreted N.C.G.S. \u00a7 ID-1 as abrogating the pre-existing common law. See, e.g., Rhyne, 358 N.C. at 176, 594 S.E.2d at 12 (\u201cA plaintiff\u2019s recovery of punitive damages is fortuitous, as such damages are assessed solely as a means to punish the willful and wanton actions of defendants and, unlike compensatory damages, do not vest in a plaintiff upon injury.\u201d (citation omitted)).\nPlaintiff contends this obvious legislative intent to have courts read \u201cand\u201d as a disjunctive \u201cor\u201d in N.C.G.S. \u00a7 ID-1 is found in N.C.G.S. \u00a7 ID-26. This statute exempts from the \u201cstatutory cap\u201d on punitive damages claims established by N.C.G.S. \u00a7 ID-25 any punitive damages sought \u201cfor injury or harm arising from a defendant\u2019s operation of a motor vehicle if the actions of the defendant in operating the motor vehicle would give rise to an offense of driving while impaired under G.S. 20-138.1 [impaired driving generally], 20-138.2 [impaired driving while operating a commercial vehicle], or 20-138.5 [habitual impaired driving].\u201d N.C.G.S. \u00a7 ID-26 (2005). We certainly acknowledge the General Assembly\u2019s intent in section ID-26 to punish individuals more severely for driving while impaired than for other tortious conduct by exempting such claims from section lD-25(b). However, we cannot infer from section ID-26 an obvious intent to have courts read \u201cand\u201d as a disjunctive in section ID-1, which governs all punitive damages claims.\nBecause we discern no obvious legislative intent to the contrary, we are constrained to apply the plain meaning of N.C.G.S. \u00a7 ID-1 to plaintiff\u2019s claim for punitive damages. Plaintiff concedes that decedent can no longer be punished or deterred for whatever \u201cegregiously wrongful acts\u201d he may have committed before his death. As a consequence, plaintiff is precluded as a matter of law from asserting his claim for punitive damages under N.C.G.S. \u00a7 ID-1.\nII. Survival of Actions Against Personal Representative\nPlaintiff argues, in the alternative, that N.C.G.S. \u00a7 28A-18-1 allows any claims he may have asserted against decedent to survive against defendant as the administrator of decedent\u2019s estate, including his claim for punitive damages. This statute provides:\n(a) Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as provided in subsection (b) hereof, shall survive to and against the personal representative or collector of his estate.\n(b) The following rights of action in favor of a decedent do not survive:\n(1) Causes of action for libel and for slander, except slander of title;\n(2) Causes of action for false imprisonment;\n(3) Causes of action where the relief sought could not be enjoyed, or granting it would be nugatory after death.\nN.C.G.S. \u00a7 28A-18-1 (2005). Although punitive damages claims are not expressly excepted by this statute, the General Assembly has mandated that Chapter ID prevails over \u201cany other law to the contrary\u201d with respect to such claims. N.C.G.S. \u00a7 ID-10 (2005). Thus, since N.C.G.S. \u00a7 ID-1 precludes plaintiff from asserting a claim for punitive damages against defendant, plaintiff cannot rely upon the \u201csurvival statute\u201d to procure a different result.\nCONCLUSION\nAccordingly, we hold that plaintiffs claim for punitive damages against defendant must fail as a matter of law. Thus, the trial court did not err when it ordered plaintiffs claim for punitive damages dismissed, and the decision of the Court of Appeals is hereby affirmed.\nAFFIRMED.", "type": "majority", "author": "BRADY, Justice." }, { "text": "Justice NEWBY\ndissenting.\nI agree with the majority that our common law has traditionally viewed punitive damages as valuable for punishing a wrongdoer and deterring others and that Chapter ID reinforces the common law in this regard. However, I believe the majority misconstrues the framework for punitive damages enacted by the General Assembly. When Chapter ID is examined in its entirety, the intent of the legislature becomes clear: a jury is permitted to award punitive damages despite the death of the tortfeasor. Therefore, I respectfully dissent.\nChapter ID has several sections which are typical of other chapters in the North Carolina General Statutes. Section ID-1 describes the broad policy of punitive damages. Section ID-5 provides definitions applicable to the Chapter. Section ID-10 details the scope of the Chapter, and section ID-15 delineates the \u201c[standards for recovery of punitive damages.\u201d\nIn particular, section ID-15 states: \u201cPunitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors[: (1) fraud, (2) malice, or (3) willful or wanton conduct] was present and was related to the injury for which compensatory damages were awarded.\u201d N.C.G.S. \u00a7 1D-I5(a) (2007). Moreover, \u201c[t]he claimant must prove the existence of an aggravating factor by clear and convincing evidence.\u201d Id. \u00a7 1D-I5(b) (2007). Once the plaintiff meets the requirements of this section, the jury must determine in its discretion whether or not to award punitive damages. See id. \u00a7 ID-35 (2007). Notably, neither section ID-15 nor any other section of Chapter ID limits punitive damages to situations in which a plaintiff can establish the presence of every stated statutory purpose for the award of punitive damages. Instead, with regard to the statutory purposes of punitive damages, Chapter ID requires only that, once plaintiff has established eligibility under section ID-15, the jury \u201cconsider\u201d those purposes when \u201cdetermining the amount of punitive damages, if any, to be awarded.\u201d Id. \u00a7 1D-35(1).\nThe North Carolina Pattern Jury Instructions illustrate the approach intended by the legislature. First, the jury must answer, \u201cIs the defendant liable to the plaintiff for punitive damages?\u201d 2 N.C.P.I. \u2014 Civ. 810.96, at 1 (gen. civ. vol. May 2001). \u201cOn this issue the burden of proof is on the plaintiff to prove three things.\u201d Id. The plaintiff must first prove the existence of an aggravating factor by clear and convincing evidence. Id., at 2. The plaintiff also must prove by the greater weight of the evidence that the aggravating-factor was related to the injury and that the defendant participated in the wrongful conduct. Id., at 2-3. If the plaintiff satisfies its burden of proof on these three issues, it is the jury\u2019s duty to answer \u201cYes\u201d and find the defendant liable to the plaintiff for punitive damages. Id., at 3.\nIf the jury determines the defendant is liable to the plaintiff for punitive damages, it must then answer a second question: \u201cWhat amount of punitive damages, if any, does the jury in its discretion award to the plaintiff?\u201d 2 N.C.P.I. \u2014 Civ. 810.98, at 1 (gen. civ. vol. May 1996). At this point, the jury is instructed to consider the purposes of punitive damages because any amount awarded should bear a rational relationship to those purposes. Id., at 2-3.\nThus, neither Chapter ID nor the Pattern Jury Instructions make plaintiff\u2019s eligibility for an award contingent upon satisfying all of the statutory purposes of punitive damages. Rather, they give the jury discretion to determine the appropriate amount of an award with reference to the statutory purposes. The jury is free to consider a defendant\u2019s death when using its discretion to determine the award amount, just as the jury would be permitted to consider that a living defendant should be punished even though it believed any deterrent effect would be small or nonexistent. See Hofer v. Lavender, 679 S.W.2d 470, 474-75 (Tex. 1984) (concluding punitive, or exemplary, damages could be collected from the estate of a deceased tortfeasor after discussing the \u201cequally important considerations other than punishment of the wrongdoer\u201d recognized in Texas as purposes for punitive damages); Perry v. Melton, 171 W. Va. 397, 401, 299 S.E.2d 8, 12 (1982) (holding punitive damages could be collected from the estate of a deceased tortfeasor because \u201c[p]unitive damages in [West Virginia] serve other equally important functions and are supported by public policy interests going beyond simple punishment of the wrongdoer\u201d).\nIn contrast to the statutory structure and the Pattern Jury Instructions, the majority incorporates the statutory purposes of punitive damages into section ID-15. The majority holds that punitive damages cannot be awarded unless the plaintiff meets the criteria in section ID-15 and establishes that the punitive damages will punish the defendant, deter the defendant, and deter others. If the legislature intended the purposes of punitive damages to be treated as prerequisites for an award, it would have included those purposes in section ID-15.\nThe General Assembly\u2019s use of the word \u201cpurposes\u201d in Chapter ID is equally significant. Although the title of section ID-1 is \u201c[p]urpose of punitive damages,\u201d language in other sections of the Chapter indicates there are several \u201cpurposes\u201d for awarding punitive damages. See N.C.G.S. \u00a7\u00a7 lD-5(6) (2007) (\u201c \u2018Punitive damages\u2019 means extracompensatory damages awarded for the purposes set forth in G.S. ID-1.\u201d), -35(1) (\u201cIn determining the amount of punitive damages, if any, to be awarded\u201d the jury \u201c[s]hall consider the purposes of punitive damages set forth in G.S. ID-1.\u201d); see also Town of Blowing Rock v. Gregorie, 243 N.C. 364, 371, 90 S.E.2d 898, 903 (1956) (stating that a statute\u2019s caption cannot control the unambiguous text of the statute). Viewing Chapter ID in its entirety reveals the legislature\u2019s intent that section ID-1 be interpreted as a broad policy statement that includes the three purposes of punitive damages recognized in North Carolina: (1) punishing defendants, (2) deterring defendants, and (3) deterring others. When section ID-1 is viewed as a list of purposes to be considered in determining the amount of an award rather than a list of prerequisites, the General Assembly\u2019s use of the conjunctive rather than the disjunctive becomes irrelevant.\nIn addition, unlike the majority\u2019s interpretation, concluding that Chapter ID permits a punitive damages award against a deceased defendant is consistent with North Carolina\u2019s survival statute. See N.C.G.S. \u00a7 28A-18-1 (2007). A punitive damage award against a deceased defendant is permitted under the survival statute which states that \u201call demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against\u201d a deceased person \u201cshall survive to and against the personal representative or collector of his estate.\u201d Id. \u00a7 28A-18-l(a). Although certain rights of action in favor of a decedent do not survive, see id. \u00a7 28-18-l(b), no actions or demands against a decedent are excepted from section 28A-18-l(a).\nHere, plaintiff\u2019s allegations, treated as true, are sufficient to satisfy the eligibility requirements for a claim for punitive damages under section ID-15. As such, this claim should not have been dismissed. Plaintiff is not required to prove that all three statutory purposes of punitive damages will be furthered by an award. Rather, should it determine plaintiff\u2019s allegations are true, the jury should decide the appropriate size of an award, if any, taking into consideration the death of the tortfeasor as it relates to the puiposes of punitive damages stated in section ID-1.\nJustice HUDSON joins in this dissenting opinion.", "type": "dissent", "author": "Justice NEWBY" } ], "attorneys": [ "Keel O\u2019Malley, LLP, by Joseph P. Tunstall, III, for plaintiff - appellant.", "Valentine, Adams, Lamar, Murray, Lewis & Daughtry, L.L.P., by Kevin N. Lewis, for defendant-appellee." ], "corrections": "", "head_matter": "RICHARD HARRELL v. MELVIN BOWEN, Administrator of the Estate of CHELSON EARL PERRY\nNo. 587PA06\n(Filed 25 January 2008)\n1. Damages\u2014 punitive \u2014 no assertion against personal representative\nPunitive damages may not be asserted against a defendant\u2019s estate on the basis of his alleged egregiously wrongful acts (driving while impaired). N.C.G.S. \u00a7 ID-1, which provides for the award of punitive damages, states as a purpose the punishment and deterrence of defendant and others; contrary to plaintiff\u2019s arguments, a legislative intent to treat disjunctively the purposes of punishment and deterrence or the deterrence of defendant and others could not be discerned. Neither could an obvious legislative intent to read N.C.G.S. \u00a7 ID-1 disjunctively be inferred from N.C.G.S. \u00a7 ID-26.\n2. Estates\u2014 personal representatives \u2014 punitive damages claims\nThe survival statute of N.C.G.S. \u00a7 28A-18-1, which allows claims to be asserted against a personal representative, does not apply to punitive damages. Chapter ID (which has provisions for punitive damages) by its terms prevails over any law to the contrary, and N.C.G.S. \u00a7 ID-1 precludes a claim for punitive damages against an estate.\nJustices Newby and Hudson dissenting.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 179 N.C. App. 857, 635 S.E.2d 498 (2006), affirming an order dismissing plaintiffs punitive damages claim entered on 7 November 2005 by Judge William C. Griffin, Jr. in Superior Court, Martin County. Heard in the Supreme Court 15 October 2007.\nKeel O\u2019Malley, LLP, by Joseph P. Tunstall, III, for plaintiff - appellant.\nValentine, Adams, Lamar, Murray, Lewis & Daughtry, L.L.P., by Kevin N. Lewis, for defendant-appellee." }, "file_name": "0142-01", "first_page_order": 220, "last_page_order": 228 }