                                                                    Feb 16 2016, 8:34 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Bradford R. Shively                                        Patrick F. O’Leary
Jonathan R. Slabaugh                                       Goshen, Indiana
Sanders • Pianowski, LLP
Elkhart, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Best Formed Plastics, LLC, and                             February 16, 2016
Jane Stewart,                                              Court of Appeals Case No.
Appellants-Defendants,                                     20A03-1506-PL-651
                                                           Appeal from the Elkhart Superior
        v.                                                 Court
                                                           The Honorable Gretchen S. Lund,
George Shoun,                                              Judge
Appellee-Plaintiff
                                                           The Honorable Thomas A. Murto,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           20D04-1302-PL-45



Crone, Judge.




Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016                Page 1 of 21
                                              Case Summary
[1]   Best Formed Plastics, LLC (“BFP”) and Jane Stewart appeal the trial court’s

      entry of judgment on jury verdicts in favor of their former employee George

      Shoun. Shoun sustained a shoulder injury while at work and subsequently filed

      a worker’s compensation claim. His employment was later terminated. He

      sued BFP and Jane, one of its owners, for retaliatory discharge, defamation,

      and invasion of privacy by false light, claiming among other things, that he was

      fired in retaliation for filing a worker’s compensation claim.


[2]   Following a trial, the jury found in Shoun’s favor on the retaliatory discharge

      and invasion of privacy claims and awarded him a total of $412,680 in

      compensatory and punitive damages. On appeal, BFP asserts that the trial

      court erred as a matter of law in entering judgment on the jury’s verdict against

      BFP for retaliatory discharge. BFP and Jane also contend that the trial court

      abused its discretion in refusing certain jury instructions. Finally, BFP and Jane

      claim error regarding the damages awards. Finding no error or abuse of

      discretion, and determining that BFP and Jane have waived one of their

      assertions of error, we affirm.


                                  Facts and Procedural History
[3]   The relevant facts favorable to the verdicts indicate that BFP is a family-owned

      plastic fabricating business operated in Elkhart. Jimmy Stewart established

      BFP in the fall of 2006. He is the president and 50% owner of the company; his

      wife Jane is the secretary and treasurer and 48% owner; and his son Jeb is the


      Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 2 of 21
      production manager and 2% owner. Shoun began working for BFP in June

      2007. Shoun was a high school friend of Jimmy’s and had continued to be a

      close friend through the years, even serving as the best man in Jimmy and

      Jane’s wedding. Prior to commencing his employment at BFP, Shoun received

      specific training on the operation of a type of plastic fabricating machine called

      a CNC machine. While working at BFP, Shoun performed various duties

      including operating a double-table CNC machine, driving a truck for deliveries,

      repairing and maintaining equipment, and designing programs for the

      machines. Shoun’s primary work over the last several years, however, involved

      operating an automatic thermoforming machine.


[4]   The automatic thermoforming machine was akin to a large oven. To operate

      the machine, Shoun was required to lift pieces of raw plastic material and place

      them into molds. Most of the pieces of raw plastic were between two and ten

      pounds, with a few being around fifteen pounds. On very rare occasions, a

      piece of plastic would weigh over twenty-five pounds. In addition to lifting and

      moving raw plastic material, Shoun was required to set molds into and remove

      molds from the thermoforming machine. Because a single mold could weigh

      up to 800 pounds, Shoun used a forklift to both set and remove molds. Shoun’s

      operation of the thermoforming machine did require some overhead lifting.


[5]   On Friday, March 9, 2012, fifty-eight-year-old Shoun fell and dislocated his

      shoulder while attempting to secure an airline that had come loose from the

      automatic thermoforming machine. Shoun remained off work for one week

      and returned to work with medical restrictions on Monday, March 19, 2012.

      Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 3 of 21
      He was prohibited from lifting more than five pounds with his left arm and

      from performing overhead lifting. Accordingly, Shoun performed duties such

      as sanding, drilling, counting, numbering, and packaging small parts. It was

      determined that Shoun would perform this light-duty work until, May 21, 2012,

      the day before he was scheduled to take medical leave for shoulder surgery.


[6]   On May 14, 2012, Jane sent an email to BFP’s insurance agent regarding

      Shoun’s upcoming surgery and medical leave and the possible financial

      repercussions that a worker’s compensation claim could have on BFP. Jane

      wrote,

               After my conversations with you last week, we decided it would
               be in the best interest of BFP to pay George Shoun[’]s payroll
               directly after his surgery rather tha[n] Workmans Comp pay his
               w[a]ges in order to lessen the hit on our premium for the next
               couple of years.

               I just got off the phone with the Workmans Comp contact an[d]
               she advised me that after George’s surgery and recovery, he will
               be awarded when the claimant is at medical maximum
               improvement a “Permanent Par[tial] Impairment Rating” and
               could be awarded anywhere between $5000 - $14,000.00! This
               money would come from the Workmans Comp fund or from
               [BFP]. No one knows the exact amount until the end of the
               process.

               Based upon this new infor, I am not sure we should pay George
               directly. I am just [wanting] to do the right thing to lessen any
               more costs to BFP.


      Appellee’s App. at 62.


      Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 4 of 21
[7]   Also, while Shoun was working the day before his scheduled surgery, Jeb

      Stewart accused Shoun of “buffalo[ing]” the doctors and the insurance

      company and that he had “everybody fooled.” Tr. at 652. Jeb told Shoun that

      he knew better and that there was nothing wrong with him because “a woman

      can shove a baby head out of her p***y and in five (5) days be back to work.”

      Id. On May 22, 2012, Shoun had surgery on his shoulder and began receiving

      payments through worker’s compensation.


[8]   While Shoun was on medical leave following surgery, Shoun was contacted by

      his worker’s compensation caseworker who informed him that BFP had a

      position open for a CNC operator. The CNC machine operation involved

      fabricating parts that weighed only a few pounds each and could be done within

      Shoun’s continued medical restrictions of lifting no more than five pounds with

      his left arm and no overhead lifting. Accordingly, Shoun reported back to work

      at BFP on August 13, 2012. A few days later, Jeb angrily approached Shoun

      and told him that, while he was gone, he had “cost the company a lot more

      than just production.” Id. at 656. Thereafter, Jeb seemed continually mad at

      Shoun and treated him poorly. Shoun felt as if Jeb was intentionally harassing

      him so, on August 29, Shoun told one of the worker’s compensation insurance

      adjusters about it. The adjuster told Shoun that she was going to “make a call

      because this ha[s] to stop.” Id. at 659. The following day, Jimmy and Jeb

      confronted Shoun with two disciplinary incident reports written about Shoun

      that alleged incidents on August 22 and 28. Shoun disputed the claims in both




      Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 5 of 21
       reports but was told by Jeb that he had no choice but to sign and acknowledge

       the reports.


[9]    Shoun continued to work at BFP as a CNC operator, under the same medical

       restrictions as before, until September 17, 2012. Jeb approached Shoun at the

       end of his shift and told him that BFP would not have any work for him for the

       rest of the week. Unbeknownst to Shoun, the next day, Jane spoke with the

       worker’s compensation insurance adjuster and told her that “due to lack of

       work,” BFP would not have Shoun come in for the remainder of the week and

       likely not the following week either, but that if “sales rise, we will bring him

       back.” Appellee’s App. at 23. No other employee of BFP was told that their

       services were no longer needed due to this alleged downturn in sales. In fact,

       BFP’s tax returns show that sales steadily increased between 2012 and 2013.

       That same day, Jane told BFP’s insurance agent to cancel “all insurance” for

       Shoun. Id. at 20. Shoun returned to work on Monday, September 24, 2012.

       Jeb simply told Shoun that there was no work for him and that it may be a

       couple of weeks before BFP would have more work. When Shoun’s girlfriend,

       Cathy, learned of the insurance cancellation, she called Jane for an explanation.

       Jane told Cathy that Shoun’s “employment here has been terminated” and that

       he “will never work here again.” Tr. at 544.


[10]   In mid-December 2012, Jimmy sent a letter to Shoun in response to a request

       from Shoun for a summary of his 2012 wages. Jimmy began the letter,

               We have heard from many people of your displeasure with this
               whole work injury situation, advising all whom you have spoken

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 6 of 21
               to as you put it, “we are [f***king] you.” This along with you
               are milking the workmans comp issue since you could make
               more money staying at home and selling weed.


       Appellee’s App. at 79.


[11]   On February 14, 2013, Shoun filed a complaint for damages against BFP

       alleging that BFP wrongfully terminated his employment by firing him in

       retaliation for making a worker’s compensation claim. On February 19, Jane

       made a post to her Facebook account that read:


               Isn’t it amazing how Jimmy experienced a 5 way heart bypass
               just one month ago and is back to work, especially when you
               consider George Shoun’s shoulder injury that kept him away
               from work for 11 months and now he is trying to sue us. Love
               for everyone to hear the real truth! What a loser!


       Id. at 24. This post remained on Jane’s Facebook account for seventy-six days

       until she took it down on May 6, 2013.


[12]   Shoun subsequently filed an amended complaint against BFP and Jane and

       added claims for invasion of privacy by false light and defamation. In October

       2014, BFP moved for summary judgment on the retaliatory discharge claim.

       That motion was denied by the trial court. A four-day jury trial began in

       January 2015. During trial, among other things, Shoun testified that he

       performed various jobs when he was originally hired by BFP and that there was

       “no doubt” in his mind that he could still operate the thermoforming machine

       despite his current medical restrictions. Tr. at 648. Shoun explained to the jury


       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 7 of 21
       in detail how the thermoforming machine operated. He also explained how his

       medical restrictions applied only to his left arm and that he could easily use that

       arm as a guide while using his uninjured right arm to bear any necessary

       weight, including during overhead lifting.


[13]   Following Shoun’s presentation of evidence, BFP and Jane moved for

       judgment on the evidence. The trial court denied the motion. After BFP and

       Jane presented their evidence, they renewed their motion for judgment on the

       evidence, and the motion was again denied. Before the jury received final

       instructions, BFP and Jane objected to the trial court’s refusal to give to the jury

       their tendered instructions regarding the law applicable to a claim for retaliatory

       discharge. The court overruled the objection and instead read to the jury

       alternative instructions regarding the law applicable to retaliatory discharge.

       Thereafter, the jury was given separate verdict forms to fill out regarding each

       of Shoun’s three claims.


[14]   Following deliberations, the jury returned a verdict in favor of Shoun and

       against BFP on Shoun’s retaliatory discharge claim, awarding him $337,680 in

       compensatory damages for lost income and benefits. The jury also awarded

       Shoun $50,000 in punitive damages on that claim. Regarding Shoun’s

       defamation claim, the jury returned a verdict in favor of BFP and Jane. As for

       the invasion of privacy by false light claim, the jury returned a verdict in favor

       of Shoun and against BFP and Jane. On the verdict form, the jury left the line

       designated for compensatory damages blank, but wrote “$25,000” on the line

       designated for punitive damages. Appellants’ App. at 39. After the trial court

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 8 of 21
       read the verdicts in open court, the court asked the parties for any motions.

       BFP and Jane requested a polling of the jury and the jurors indicated their

       unanimous decision as to each verdict. The trial court entered judgment on the

       jury verdicts on February 5, 2015.


[15]   BFP and Jane subsequently filed a motion to correct error. The trial court

       denied the motion following a hearing. This appeal ensued.


                                            Discussion and Decision

             Section 1 – The trial court did not err as a matter of law in
              denying BFP’s motion for judgment on the evidence and
               entering judgment on the jury’s verdict against BFP on
                         Shoun’s retaliatory discharge claim.
[16]   BFP 1 asserts that the trial court erred as a matter of law in entering judgment on

       the jury’s verdict in favor of Shoun on his retaliatory discharge claim.

       Specifically, BFP claims that there was clear evidence that Shoun was – and for

       the foreseeable future would continue to be – physically unable to perform the

       functions of his pre-injury work, and therefore his retaliatory discharge claim is

       barred as a matter of law. We disagree.


[17]   Although not procedurally framed as such by BFP, BFP essentially claims that

       it was entitled to judgment on the evidence and that the jury’s verdict on

       Shoun’s retaliatory discharge claim is contrary to law. Our standard of review




       1
           In our discussion, we will refer to the appellants collectively as BFP.


       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 9 of 21
       for a challenge to a trial court’s ruling on a motion for judgment on the

       evidence is the same standard that governed the trial court in making its

       decision. J.E. Stone Tree Serv., Inc. v. Bolger, 831 N.E.2d 220, 226-27 (Ind. Ct.

       App. 2005). Judgment on the evidence is proper only where “all or some of the

       issues…are not supported by sufficient evidence.” Ind. Trial Rule 50(A). This

       Court looks only to the evidence and reasonable inferences drawn most

       favorable to the nonmoving party, and the motion should be granted only

       where “there is no substantial evidence supporting an essential issue in the

       case.” Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003). “If there is evidence

       that would allow reasonable people to differ as to the result, judgment on the

       evidence is improper.” Id. Where the issue involves a conclusion of law based

       upon undisputed facts, we determine the matter as a question of law in

       conjunction with the motion for judgment on the evidence, and to this extent,

       the standard of review is de novo. Cavens v. Zaverdac, 849 N.E.2d 526, 529 (Ind.

       2006). In the end, we will not set aside a jury verdict unless the verdict is

       wholly unwarranted under the law and the evidence. Bolger, 831 N.E.2d at 227.


[18]   A review of Indiana law regarding retaliatory discharge claims is appropriate

       here. “In general, an employment contract of indefinite duration is

       presumptively terminable at the will of either party.” Stillson v. St. Joseph Cnty.

       Health Dep’t, 22 N.E.3d 671, 679 (Ind. Ct. App. 2014) (citing Pepkowski v. Life of

       Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind.1989)), trans denied (2015). However,

       it is well settled in Indiana that an action for retaliatory discharge exists when

       an employee is discharged for exercising a statutorily conferred right, such as

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 10 of 21
       filing a worker’s compensation claim. Purdy v. Wright Tree Serv., Inc., 835

       N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied (2006). In Frampton v.

       Central Indiana Gas Co., 260 Ind. 249, 251-53, 297 N.E.2d 425, 427-28 (1973),

       our supreme court held that an employee-at-will who was discharged for filing a

       worker’s compensation claim could file an action for retaliatory discharge

       against her employer because the Worker’s Compensation Act was designed for

       the benefit of employees, and as such, its humane purpose would be

       undermined if employees were subject to reprisal without remedy solely for

       exercising that statutory right.


[19]   This Court has outlined and consistently followed a three-step approach to a

       retaliatory discharge Frampton claim under Indiana law. First, the employee

       must prove, by a preponderance of the evidence, a prima facie case of

       discrimination. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct.

       App. 2002). Specifically, the employee must present evidence that directly or

       indirectly implies the necessary inference of causation between the filing of a

       worker’s compensation claim and the termination. Id. Second, the burden

       shifts to the employer to articulate a legitimate nondiscriminatory reason for the

       discharge. Id. If the employer carries its burden, the employee then has the

       opportunity to prove that the reason cited by the employer is a pretext. Id. He

       may establish pretext by showing that the reasons are (1) factually baseless; (2)

       not the actual motivation for his discharge; or (3) insufficient to motivate the

       discharge. Id. The question of whether a retaliatory motive exists for

       discharging an employee is a question for the trier of fact. Id. at 1261-62.

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 11 of 21
[20]   Despite our clear precedent on the shifting burdens of proof in a retaliatory

       discharge claim, BFP cites to authority from other jurisdictions and urges us to

       declare “as a matter of law” that Shoun’s retaliatory discharge claim is barred

       (and should never have been submitted to the jury) because of what BFP claims

       to be “uncontroverted evidence” that Shoun was – and for the foreseeable

       future would continue to be – physically unable to perform the functions of his

       pre-injury work. Appellants’ Br. at 22. 2 BFP’s arguments are misplaced and

       appear to be based upon a misunderstanding of Indiana law.


[21]   First, contrary to BFP’s assertions, the evidence regarding what Shoun’s pre-

       injury work actually was, and whether he was able to perform the functions of

       that work after his injury, was highly contested at trial. Moreover, pursuant to

       Indiana law, a retaliatory discharge claim is not short-circuited merely because

       the employer has articulated a nonretaliatory reason for discharge, such as the

       employee’s physical inability to perform pre-injury work, as BFP asserted here.

       Indeed, the employee still has the opportunity to prove by a preponderance of

       the evidence that the reason cited by the employer is a pretext. Powdertech, 776

       N.E.2d at 1262.


[22]   We observe that undisputed evidence that an employee is physically unable to

       perform the tasks required by his pre-injury work could, under very specific

       circumstances, serve as a legitimate nonretaliatory basis for termination,



       2
         We decline to cite to the numerous foreign cases relied upon by BFP, as they are factually and procedurally
       distinguishable, and the authority is neither binding nor persuasive under the circumstances presented.

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016                    Page 12 of 21
potentially rendering a retaliatory discharge claim unsuccessful. Compare Purdy,

835 N.E.2d at 212 (affirming summary judgment for employer and concluding

that employee failed to establish genuine issue of material fact that employer’s

stated reason for discharge, employee’s medical inability to return to work, was

a pretext), with Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 370 (Ind. Ct. App.

1999) (reversing summary judgment and concluding that evidence could

support inference that employer’s stated reason for discharge, employee’s

inability to fulfill job duties due to medical restrictions, was a pretext).

However, that is not to say that an employee should be summarily deprived of

his ability to present evidence of pretext or that his claim for retaliatory

discharge should be barred, as urged by BFP. This is certainly not, and never

has been, the law in Indiana. Additionally, we believe that it would be contrary

to the public policy underlying a Frampton claim to hold that an employer may

not fire an employee in retaliation for filing a worker’s compensation claim, but

that an employer may fire an employee for the inability to return to his job due

to the injuries that are the basis for the worker’s compensation claim. This is

especially the case where, as here, an employee is discharged well before the full

extent of permanent injury is known. 3 We decline BFP’s invitation to alter or

expand our well-settled law.




3
  Shoun’s maximum medical improvement, or MMI, was not determined until December 28, 2012, more
than three months after his employment was terminated. Defendant’s Ex. EE.

Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016           Page 13 of 21
[23]   BFP does not dispute, and therefore effectively concedes, that sufficient

       evidence supports the jury’s determination, pursuant to Indiana law, that BFP

       terminated Shoun’s employment solely in retaliation for filing a worker’s

       compensation claim. 4 Accordingly, the trial court did not err in denying BFP’s

       motion for judgment on the evidence and entering judgment on the jury’s

       verdict in favor of Shoun on his retaliatory discharge claim.


[24]   We reach the same conclusion regarding BFP’s related contention that the trial

       court erred as a matter of law in entering judgment on the jury’s verdict

       awarding Shoun damages for lost wages and benefits on his retaliatory

       discharge claim. While we will discuss the amount of the damages award later,

       BFP’s claim that Shoun is not entitled to such damages as a matter of law is

       based upon the same inapplicable foreign authority as well as the alleged

       “uncontroverted evidence” that Shoun was unable to perform his pre-injury

       work. Again, contrary to BFP’s assertion, the evidence on this issue was

       vigorously contested. We find no error.


            Section 2 – The trial court did not abuse its discretion in
                   refusing BFP’s tendered jury instructions.
[25]   BFP alternatively argues that the trial court erred as a matter of law in refusing

       its tendered jury instructions regarding (1) Shoun’s inability to maintain a




       4
         Specifically, BFP states that “whether there was sufficient evidence for the jury to find that [BFP]
       terminated Shoun’s employment solely in retaliation for filing a worker’s compensation claim is not relevant
       to the issues raised in this appeal.” Reply Br. at 5.

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016                    Page 14 of 21
       retaliatory discharge claim and (2) Shoun’s inability to recover damages for lost

       wages on his retaliatory discharge claim. This Court has explained,

               The decision to give or deny a tendered jury instruction is largely
               left to the sound discretion of the trial court. We review the trial
               court’s decision only for an abuse of that discretion. On review,
               we will reverse the trial court’s refusal to give a tendered
               instruction when the instruction is a correct statement of the law;
               it is supported by the evidence; and it does not repeat material
               already covered by other instructions.


       Tucker v. Harrison, 973 N.E.2d 46, 56 (Ind. Ct. App. 2012) (citations omitted),

       trans. denied (2013).


[26]   We find it unnecessary to reproduce the proffered instructions here. For the

       reasons discussed above, the instructions tendered by BFP and refused by the

       trial court were neither supported by the evidence nor correct statements of

       Indiana law. The trial court did not abuse its discretion in refusing to give the

       instructions.


             Section 3 – The jury’s compensatory damages award on
              Shoun’s retaliatory discharge claim is not excessive.
[27]   BFP challenges the jury’s $337,680 compensatory damages award on Shoun’s

       retaliatory discharge claim as excessive. The retaliatory discharge of an at-will

       employee constitutes an intentional wrongful act on the part of the employer for

       which the employee is entitled to be fully compensated in damages. Haas

       Carriage, Inc. v. Berna, 651 N.E.2d 284, 289 (Ind. Ct. App. 1995). Damages for

       retaliatory discharge may include compensatory and punitive damages, and the

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 15 of 21
       compensatory damages may include both back pay and future pay. Remington

       Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 942 (Ind. Ct. App. 1994). Damages

       for lost income are assessed based upon a presumption of prospective

       employment, and while the gauge of the employee’s losses “may not stretch on

       ad infinitum,” the jury has the responsibility of determining what amount of

       time is reasonable. Id. Moreover, the employee has a responsibility to mitigate

       his damages, and if “the employee is able to find comparable employment,

       damages may be recovered for the period in which he is unemployed.” Id. If,

       however, the employee is unable to find comparable employment, the jury

       should consider evidence on the difference between what the employee would

       have earned had he not been discharged, and what he actually did earn

       thereafter. Id.


[28]   This Court applies a strict standard when reviewing a jury verdict containing a

       damages award claimed to be excessive or inadequate. Dee v. Becker, 636

       N.E.2d 176, 177 (Ind. Ct. App. 1994). Traditionally, juries are afforded a great

       deal of discretion in assessing damage awards. Ritter v. Stanton, 745 N.E.2d

       828, 843 (Ind. Ct. App. 2001), trans. denied (2002). On appeal, we consider only

       the evidence that supports the award together with the reasonable inferences

       therefrom. Id. If there is any evidence to support the amount of the award,

       even if it is conflicting, we will not reverse. Id. The verdict will be upheld if the

       award falls within the bounds of the evidence. Id. at 845.


[29]   The jury’s award here was clearly within the bounds of the evidence.

       Regarding past loss of income, evidence was presented that, as of the date of
       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 16 of 21
       trial, twenty-eight and one-half months had elapsed since the termination of

       Shoun’s employment on September 17, 2012. Shoun’s monthly income and

       benefits at the time of his termination was $3398.91. Although Shoun testified

       that he had been unable to find comparable employment during that time, he

       stated that he was able to obtain seasonal work at an orchard. The parties agree

       that, after subtracting unemployment and worker’s compensation benefits

       received, as well as the wages he earned from the orchard, Shoun’s total past

       loss of income was $71,809.36.


[30]   BFP claims that the additional $265,870.64 in compensatory damages, which

       should account for Shoun’s future loss of income and benefits, is excessive and

       without evidentiary support. 5 We disagree. Shoun testified that, had he not

       been terminated, he expected to work at BFP “at least” until age sixty-seven.

       Tr. at 704. The jury reasonably could have interpreted this to mean until or

       beyond age sixty-seven. Assuming monthly wages and benefits of $3398.91,

       and employment until age sixty-seven or age sixty-eight, Shoun’s future loss of

       income and benefits would range between $234,524.79 and $275,311.71. 6 The

       jury’s award was clearly within the bounds of this evidence. Moreover, it was




       5
         Although the jury was instructed that it could also consider Shoun’s mental anguish, emotional distress,
       and humiliation in its decision to award compensatory damages, the jury entered “$0” on the verdict form
       regarding these damages. Appellants’ App. at 35.
       6
        BFP made no claim at trial, and similarly makes none here, that the presumption of Shoun’s prospective
       employment up to age sixty-seven, or approximately sixty-nine months after termination, was an
       unreasonable amount of time. Accordingly, we fail to see how the same presumption up to age sixty-eight,
       or somewhere in between, would then be unreasonable. Also, it would have been the jury’s prerogative to
       make its calculation assuming a reasonable increase in wages and/or benefits during that time period.

       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016                     Page 17 of 21
       squarely within the province of the jury to determine how much, if at all, to

       credit BFP for subsequent income that Shoun may or may not earn from the

       orchard. The law is well settled that, in a tort action, the verdict need not

       reflect precise mathematical certainty. Larkey, 644 N.E.2d at 942. BFP

       essentially asks that we reweigh the evidence and reach a different result than

       the jury, which we may not do. We cannot say that the jury’s award was

       outside the scope of the evidence or excessive under the circumstances.


       Section 4 – BFP has waived our review of its assertion that the
         trial court erred in entering judgment on the jury’s verdict
         regarding damages on Shoun’s invasion of privacy claim.
[31]   The jury returned a unanimous verdict against BFP on Shoun’s claim for

       invasion of privacy by false light. However, on the verdict form, the jury left

       blank the line designated for the entry of an award for compensatory damages

       and entered “$25,000.00” on the line designated for the award of punitive

       damages. Appellants’ App. at 39. BFP argues that the jury’s award of punitive

       damages, but no compensatory damages, is contrary to Indiana law, and

       therefore the trial court erred in entering judgment on this verdict.


[32]   Indiana courts have long held that punitive damages are not freestanding and

       that an award of actual damages is a prerequisite to an award of punitive

       damages. Allstate Ins. Co. v. Axsom, 696 N.E.2d 482, 485 (Ind. Ct. App. 1998),

       trans. denied. Indeed, punitive damages may not be awarded exclusively and

       must be “in addition to” actual damages. Id. “Successful pursuit of a cause of

       action for compensatory damages is a prerequisite to an award of punitive

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       damages.” Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135, 137-38

       (Ind. 2005). Our supreme court has explained that “punitive damages may be

       awarded as part of the damages to which a plaintiff may be entitled if successful

       under a recognized existing cause of action.” Yost v. Wabash College, 3 N.E.3d

       509, 514 (Ind. 2014).


[33]   Regarding damages generally, the jury was instructed in pertinent part that “If

       you decide that the Plaintiff is entitled to recover, then in addition to

       compensatory damages, you may also award punitive damages” and “If you

       award punitive damages, you must state the amount of those damages on the

       verdict form separately from the amount of compensatory damages.”

       Appellants’ App. at 120-22. This language is susceptible to multiple reasonable

       interpretations, including that punitive damages may be awarded merely upon

       the decision that Shoun is “entitled to recover” on his invasion of privacy claim

       against BFP. The instructions do not dictate that a compensatory damages

       award is a prerequisite to a punitive damages award on each separate cause of

       action, and the instructions imply that as long as the amount of punitive

       damages awarded is stated separately on the verdict form, the award is proper.

       See Hemings v. Redford Lounge, Inc., 485 N.E.2d 1378, 1385 (Ind. Ct. App. 1985)

       (concluding that similar jury instruction was susceptible to reasonable

       interpretation that punitive damages may be awarded upon finding of

       entitlement to compensatory damages although no compensatory damages in

       fact awarded; resulted in “confused and contradictory” verdict), trans. denied

       (1986). The jury may have been confused and unaware of its responsibility to


       Court of Appeals of Indiana | Opinion 20A03-1506-PL-651 | February 16, 2016   Page 19 of 21
       assess compensatory damages on the invasion of privacy by false light claim

       before it could also assess punitive damages. In any event, an inconsistent

       verdict regarding damages on this claim resulted.


[34]   Despite the inconsistency, we conclude that BFP’s failure to object to the

       verdict when it was returned has resulted in waiver of its challenge on appeal.

       Young v. Ind. Dep’t of Natural Res., 789 N.E.2d 550, 554 (Ind. Ct. App. 2003),

       trans. denied. The clear “purpose to objecting to the verdicts when they are read

       is to allow the trial court an opportunity to ask the jury to continue

       deliberations.” Id. at 556. Here, after the trial court read the jury’s verdicts, the

       court asked the parties for “any motions?” Tr. at 1164. BFP made no objection

       to the verdicts and requested only that the jury be polled. Id. Had BFP objected

       to the jury’s verdict on the invasion of privacy claim as soon as it was returned,

       the trial court could have informed the jury of the inconsistency regarding the

       damages award and a proper verdict could have been reached. When the jury

       was discharged, “the opportunity to avoid the expense of a new trial was lost.”

       DDR Computer Serv. Bureau, Inc. v. Davis, 411 N.E.2d 722, 727 (Ind. Ct. App.

       1980). BFP is not permitted to sit back and “simply ignore the irregularity and

       hope for reversal on appeal.” Id.


[35]   We note that counsel for both parties, as well as the trial court, could have done

       more to better explain to the jury the legal principles involved in its award of




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       damages and the proper way to fill out the verdict forms. 7 In short, this

       inconsistent verdict could have been avoided. Nevertheless, BFP has waived

       the issue. 8 The judgment of the trial court is affirmed in all respects.


[36]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       7
        The record indicates that both parties agreed to the use of the specific verdict forms submitted to the jury.
       Tr. at 1018.
       8
         We note that, even had we not found waiver, the most BFP could have hoped for would have been a new
       trial on the limited issue of damages for invasion of privacy by false light. See Neher v. Hobbs, 760 N.E.2d 602,
       608 (Ind. 2002) (new trial shall be limited only to those issues affected by error). Because the jury determined
       that BFP caused Shoun harm for invasion of privacy by false light and also determined that BFP acted with
       malice or, at the very least, gross negligence, it is likely that a new trial solely on damages would result in an
       even less favorable outcome for BFP.

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