                 IN THE SUPREME COURT OF IOWA
                               No. 10–1088

                          Filed August 5, 2011


IN THE MATTER OF THE ESTATE
OF JOHNNY VAJGRT, Deceased,

BILL ERNST, INC.,

      Intervenor-Appellant.



      Appeal from the Iowa District Court for Marshall County,

Michael J. Moon, Judge.



      Bill Ernst, Inc. appeals a district court ruling denying its claim for

punitive damages. AFFIRMED.



      Theodore R. Hoglan of Condon & Hoglan Law Firm, Marshalltown,

for appellant.



      Melissa A. Nine and Barry S. Kaplan of Kaplan, Frese & Nine, LLP,

Marshalltown, for appellee.
                                      2

MANSFIELD, Justice.

      The sole question presented by this appeal is whether a right to

punitive damages survives the death of the wrongdoer.             On several

previous occasions, we have held that punitive damages may not be

recovered from the estate of a deceased tortfeasor. See Rowen v. Le Mars

Mut. Ins. Co., 282 N.W.2d 639, 661 (Iowa 1979); Wolder v. Rahm, 249

N.W.2d 630, 632 (Iowa 1977); Stevenson v. Stoufer, 237 Iowa 513, 517,

21 N.W.2d 287, 288 (1946); Sheik v. Hobson, 64 Iowa 146, 147–48, 19

N.W. 875, 875–76 (1884). Upon our review, we are not persuaded that

we should reconsider these precedents.           Therefore, we affirm the

judgment below.

      I. Background Facts and Proceedings.

      Bill Ernst, Inc. owns a thirty-three-acre tract of land north of

Marshalltown.     The Ernst property is bordered by Highway 14 to the

west, property owned by Johnny Vajgrt to the north, city-owned property

to the east, and the Iowa River to the south. Burnett Creek meanders in

a generally southerly direction to the Iowa River, at times through the

eastern portion of the Ernst property and at times through the western

edge of the property owned by Marshalltown. The Ernst property is an

undeveloped, largely wooded area located in a floodplain that floods

annually. Ernst uses the land for recreational purposes.

      Burnett Creek also flows southerly through Vajgrt’s property before

it reaches the Ernst property.       In the fall of 2005, Vajgrt became

concerned that a fallen tree near the confluence of Burnett Creek and the

Iowa River would create a dam and cause water to back up onto his land.

Therefore, Vajgrt sought permission to enter onto Ernst’s land to remove

the tree. Bill Ernst initially refused Vajgrt’s request, but after the City of

Marshalltown agreed that Vajgrt could access its land to remove the tree,
                                            3

and Vajgrt explained to Ernst that it would be more convenient to go

through Ernst’s property, Ernst gave Vajgrt permission to come onto his

property to remove the fallen tree.

       Ernst then left on a hunting trip to Colorado. During that time,

Vajgrt went onto Ernst’s property with another individual.                   Instead of

just removing the fallen tree, however, Vajgrt and the other person used

their equipment to tear out approximately forty live trees that were on

Ernst’s property along Burnett Creek.

       When Ernst returned from his trip, he was angry to have found

that Vajgrt had uprooted numerous trees, instead of just removing the

single tree for which he had been given permission.                     Ernst did not

pursue a legal claim at that time, however.

       Vajgrt passed away on November 4, 2008.                   On April 23, 2009,

Ernst filed a claim in probate seeking compensatory damages for the

diminution to the value of his property, the value of the trees, and the

expense of restoration, as well as punitive damages. 1

       Following a contested hearing, the district court awarded Ernst

$57.50 per tree removed from Ernst’s property for a total of $2300, but

declined to award any punitive damages, stating, “[I]t is well-settled in
Iowa that while a tort action survives the death of the tortfeasor, punitive

damages cannot be awarded against the administrator of the tortfeasor’s

estate.” Ernst appeals, raising only the legal issue whether a claim for

punitive damages should abate upon the death of a tortfeasor.

       1Ernst did not assert the statutory claim for treble damages that is available

when a person “willfully injur[es] any timber, tree, or shrub on the land of another.”
Iowa Code § 658.4 (2009); see also Johnson v. Tyler, 277 N.W.2d 617, 618–19 (Iowa
1979) (holding a plaintiff cannot recover both treble damages under section 658.4 and
punitive damages under the common law). We assume Ernst did not bring such a
claim because the statute of limitations for actions seeking a statutory penalty had
expired. See Iowa Code § 614.1(2) (two-year statute of limitations applies to actions “for
a statute penalty”).
                                     4

      II. Standard of Review.

      Whether a claim for punitive damages survives the death of a

tortfeasor and may be pursued against the tortfeasor’s estate is a legal

question.   Therefore, our review is for the correction of errors at law.

Iowa R. App. P. 6.907; Bremer v. Wallace, 728 N.W.2d 803, 804 (Iowa

2007).

      III. Analysis.

      The long-standing rule in this state bars the recovery of punitive

damages when the tortfeasor dies before judgment.       In Sheik, decided

when Iowa had been a state for less than forty years, we first announced

this rule. 64 Iowa at 147–48, 19 N.W. at 875–76. Sheik involved a suit

for slander. Allegedly, the defendant stated falsely in the presence of the

plaintiff’s husband that he had had sexual intercourse with the plaintiff.

Id. at 146, 19 N.W. at 875. The defendant died during the pendency of

the case, however, and the district court declined to instruct the jury on

punitive damages against his estate. Id. at 146–47, 19 N.W. at 875. The

plaintiff appealed, and we affirmed, explaining:

      Such damages are awarded as a punishment of the man who
      has wickedly or wantonly violated the rights of another,
      rather than for the compensation of the one who suffers from
      his wrongful act. It is true, they are awarded to the one who
      has been made to suffer; but not as a matter of right. For,
      while he is entitled under the law to such sum as will fully
      compensate him for the injury sustained, the question
      whether punitory damages shall be assessed, and the
      amount of the assessment, is left to the discretion of the
      jury.

            Plaintiff had a right of action, on account of the
      slanderous words spoken by [the defendant], for such sum
      as would compensate her for the injury. This was her cause
      of action, and this is what was preserved to her by the
      statute at his death. But she had no personal interest in the
      question of his punishment. So far as he was concerned, the
      punitory power of the law ceased when he died. To allow
      exemplary damages now would be to punish his legal and
                                         5
      personal representatives for his wrongful act, but the civil
      law never inflicts vicarious punishment.

Id. at 147–48, 19 N.W. at 875–76.            In short, Sheik emphasized that,

because   the     role   of   punitive   damages   is   punitive,   rather   than

compensatory, such damages should not be awarded when the person to

be punished has died.

      This holding was subsequently reiterated in Stevenson, 237 Iowa at

517, 21 N.W.2d at 288 (“[T]he right to such damages did not survive the

death of the wrongdoer either at common law or under our survivorship
statute[.]”), Wolder, 249 N.W.2d at 632 (“[A] right to punitive damages

does not survive the wrongdoer’s death[.]”), and Rowen, 282 N.W.2d at

661 (“[S]uch an award is not made against one deceased[.]”).

      Ernst argues that this line of authority is now obsolete and should

be overruled. Ernst relies on Iowa’s current survival statute as set forth

in Iowa Code section 611.20 (2009), Iowa’s punitive damages statute as

set forth in Iowa Code chapter 668A, and our own recognition in various

cases that punitive damages not only punish the tortfeasor, but also

deter others from like conduct. For the reasons stated herein, we find

none of these arguments persuasive.

      A. Iowa Code Section 611.20.               According to Iowa’s survival

statute, “[a]ll causes of action shall survive and may be brought

notwithstanding the death of the person entitled or liable to the same.”

Iowa Code § 611.20. Ernst argues that this provision “would logically

lean toward the allowance of [punitive] damages” even after the death of

the tortfeasor.

      However, one potential problem with Ernst’s position is that

punitive damages do not constitute a distinct “cause of action.” Rather,

they are a form of relief incidental to the main cause of action. Sebastian
                                       6

v. Wood, 246 Iowa 94, 100, 66 N.W.2d 841, 844 (1954). Furthermore,

Iowa had a similar survival statute in effect in 1884 when Sheik was

decided. 64 Iowa at 147, 19 N.W. at 875 (citing Iowa Code section 2525

(1873), which provided that all causes of action “may be brought,

notwithstanding the death of the person entitled or liable to the same”).

We specifically rejected the same proposed construction of the survival

statute back then, id., and the legislature has reenacted the survival

statute in various forms without attempting to disturb our holding in

Sheik.

         “The legislature is presumed to know the state of the law, including

case law, at the time it enacts a statute.” State v. Jones, 298 N.W.2d

296, 298 (Iowa 1980).         “[W]e often infer legislative assent to our

precedents from prolonged legislative silence.”       McElroy v. State, 703

N.W.2d 385, 395 (Iowa 2005). The rule of stare decisis

         “is especially applicable where the construction placed on a
         statute by previous decisions has been long acquiesced in by
         the legislature, by its continued use or failure to change the
         language of the statute so construed, the power to change
         the law as interpreted being regarded, in such
         circumstances, as one to be exercised solely by the
         legislature.”

Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa 2002)

(quoting Cover v. Craemer, 258 Iowa 29, 34–35, 137 N.W.2d 595, 599

(1965)).

         In short, reliance on the survival statute did not carry the day

when Sheik was decided. If anything, the argument has less force today,

given the legislature’s repeated reenactment of the survival statute

without attempting to disturb the holding in Sheik.

         B. Iowa Code Chapter 668A.         In 1986, the general assembly

enacted a law relating to punitive or exemplary damages. See 1986 Iowa
                                      7

Acts ch. 1211, § 42 (codified at Iowa Code ch. 668A (1987)). Under the

statute, as revised in 1987, see 1987 Iowa Acts ch. 157, § 10, a plaintiff

may recover punitive or exemplary damages if the plaintiff proves “by a

preponderance of clear, convincing, and satisfactory evidence, the

conduct of the defendant from which the claim arose constituted willful

and wanton disregard for the rights or safety of another.”        Iowa Code

§ 668A.1(1)(a), (2) (2009). If the plaintiff also shows that the defendant’s

conduct was “directed specifically” at the plaintiff, then the plaintiff shall

be paid the full amount of the punitive or exemplary damages awarded.

Id. § 668A.1(1)(b), (2)(a).   However, if the defendant’s conduct was not

directed specifically at the plaintiff, the plaintiff may only receive up to

twenty-five percent of the punitive or exemplary damages awarded, with

the remainder being paid into a civil reparations trust fund to help pay

for indigent civil litigation programs or insurance assistance programs.

Id. § 668A.1(1)(b), (2)(b).

      But chapter 668A is silent on whether punitive damages survive a

tortfeasor’s death.    Therefore, it is difficult to make the case that the

legislature intended to overturn the existing precedents in this area.

Jones, 298 N.W.2d at 298. Our court had just reiterated the rule that

punitive damages do not survive the tortfeasor’s death in 1977 and again

in 1979.    It seems more plausible to conclude the legislature did not

intend to change this recent case law when it enacted wide-ranging

legislation on the subject of punitive damages in 1986 without

addressing the recoverability of punitive damages from estates. We are

not persuaded that the enactment of chapter 668A should lead us to

reconsider our long-standing precedents.

      C. The Policies Behind Punitive Damages. We have said that

punitive or exemplary damages serve three purposes:          (1) punishment,
                                    8

(2) specific deterrence, and (3) general deterrence. Sebastian, 246 Iowa

at 100, 66 N.W.2d at 844 (Punitive damages serve “as a punishment for

the particular party involved and as a warning and an example to him in

the future, and to all others who may offend in like manner. The award

of such damages constitutes an effective deterrent to such offenders, and

a salutary protection to society and the public in general.”); see also

McClure v. Walgreens Co., 613 N.W.2d 225, 230 (Iowa 2000) (“Punitive

damages serve ‘as a form of punishment and to deter others from

conduct which is sufficiently egregious to call for the remedy.’ ” (quoting

Coster v. Crookham, 468 N.W.2d 802, 810 (Iowa 1991))).

      Citing this case law, Ernst argues that the general deterrence role

of punitive damages would be advanced by allowing recovery of such

damages from a tortfeasor’s estate. As Ernst puts it, “Sheik was decided

in a day when the only purpose of exemplary damages was that of

punishment. The additional purpose of exemplary damages presently is

to discourage/deter others from like conduct in the future.”

      We agree with Ernst that Sheik did not address this potential goal

of punitive damages. It simply contrasted the compensatory function of

actual damages with the “punitory” function of punitive damages. Yet by

the time Rowen was decided in 1979, we were making it clear that

“punitive damages serve two main purposes[:] to punish and to deter.”

282 N.W.2d at 662; see also id. at 661 (“[T]hey are allowed as both a

punishment to the wrongdoer and a deterrent to others[.]”). Even so, in

Rowen, we again reiterated the Sheik holding that punitive damages

abate upon the death of the tortfeasor. Id. at 661. Thus, regardless of

any possible broadening of the potential goals served by punitive damage

awards, we have previously adhered to the rule that punitive damages

should not be awarded against the estate of a wrongdoer. We therefore
                                           9

do not believe that Ernst’s policy arguments warrant a reconsideration of

our precedents.

       Notably, Iowa follows the same approach with respect to criminal

prosecutions.     It has long been the law in this state that a criminal

prosecution abates upon the death of the defendant.                  See Maghee v.

State, 773 N.W.2d 228, 231 n.2 (Iowa 2009) (citing authorities). Even

though criminal fines may have a general deterrence effect on other

wrongdoers, the state may not continue a criminal proceeding after the

defendant dies to recover a fine from his or her estate.                 See State v.

Kriechbaum, 219 Iowa 457, 458–61, 258 N.W. 110, 110–12 (1934)

(holding that when a defendant dies while his conviction is on appeal, the

action abates in toto and ab initio, and the costs of prosecution cannot

be assessed against the defendant’s estate); Babbitt v. Corrigan, 157 Iowa

382, 383, 138 N.W. 466, 467 (1912) (stating that, in the criminal context,

“[p]unishment cannot be imposed upon a dead man, nor can penalties be

imposed as against his estate”); cf. Pac. Mut. Life Ins. Co. v. Haslip, 499

U.S. 1, 19, 111 S. Ct. 1032, 1044, 113 L. Ed. 2d 1, 20 (1991) (noting that

punitive damages have been described as quasi-criminal).

       Also, Iowa’s rule in this area is not unique.                     Most other

jurisdictions disallow punitive damage recoveries after the wrongdoer has

died. 2 At present, approximately thirty-one jurisdictions in addition to

Iowa follow this approach. 3 Most of these jurisdictions (like Iowa) do so


       2See  Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Action as
Surviving Death of Tortfeasor or Person Wronged, 30 A.L.R.4th 707, 712–13 (1984);
Timothy R. Robicheaux & Brian H. Bornstein, Punished, Dead or Alive: Empirical
Perspectives on Awarding Punitive Damages Against Deceased Defendants, 16 Psychol.
Pub. Pol’y & L. 393, 413 (2010) (“The majority of jurisdictions that have considered the
issues have barred punitive damages against deceased defendants, but courts usually
must interpret civil statutes that are silent on the issue.”).
      3The following jurisdictions currently adhere to the majority approach: Idaho

Code Ann. § 5–327(1) (West, Westlaw through 2011 Chs. 1–335); Vt. Stat. Ann. tit. 14, §
                                           10

because of appellate court rulings, rather than legislative enactments

expressly prohibiting punitive damage recoveries. 4 In fact, in a number

of jurisdictions that follow the majority rule, there are general survival

__________________________
1454 (West, Westlaw through 2011 Sess. No. 28); Fehrenbacher v. Quackenbush, 759 F.
Supp. 1516, 1521–22 (D. Kan. 1991) (applying Kansas law); Sanchez v. Marquez, 457 F.
Supp. 359, 364 (D. Colo. 1978) (applying Colorado law) (currently codified at Colo. Rev.
Stat. Ann. § 13–20–101(1) (West, Westlaw through July 1, 2011)); Doe v. Colligan, 753
P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 31 P.2d 389, 395 (Cal. 1934)
(subsequently codified at Cal. Civ. Proc. Code § 377.42 (1992)); Jonathan Woodner Co. v.
Breeden, 665 A.2d 929, 938–40 (D.C. 1995); Lohr v. Byrd, 522 So. 2d 845, 846–47 (Fla.
1988); Morris v. Duncan, 54 S.E. 1045, 1046–47 (Ga. 1906) (subsequently codified at
Ga. Code Ann. § 9–2–41 (West, Westlaw through 2011 Reg. Sess.)); Crabtree ex rel.
Kemp v. Estate of Crabtree, 837 N.E.2d 135, 138–40 (Ind. 2005); Stewart v. Estate of
Cooper, 102 S.W.3d 913, 915–16 (Ky. 2003); Edwards v. Ricks, 30 La. Ann. 926, 928
(1878); Prescott v. Knowles, 62 Me. 277, 279 (1874) (currently codified at Me. Rev. Stat.
Ann. tit. 18–A, § 3–818 (West, Westlaw through 2011 1st Reg. Sess.)); Wilkens v.
Wainwright, 53 N.E. 397, 397–98 (Mass. 1899) (currently codified at Mass. Gen. Laws
Ann. ch. 230, § 2 (West, Westlaw through 2011 1st Annual Sess. Ch. 67)); Thompson v.
Estate of Petroff, 319 N.W.2d 400, 408 (Minn. 1982); Hewellette v. George, 9 So. 885,
887 (Miss. 1891) (subsequently codified at Miss. Code Ann. § 91–7–235 (West, Westlaw
through 2011 legislative sessions), overruled on other grounds by Glaskow ex rel. Denton
v. Glaskow, 614 So. 2d 906, 907 (Miss. 1992); Tietjens v. Gen. Motors Corp., 418 S.W.2d
75, 88 (Mo. 1967); Allen v. Anderson, 562 P.2d 487, 489–90 (Nev. 1977) (subsequently
codified at Nev. Rev. Stat. Ann. § 41.100(2) (West, Westlaw through 2010 Special
Sess.)); Jaramillo v. Providence Wash. Ins. Co., 871 P.2d 1343, 1350–52 (N.M. 1994);
Gordon v. Nathan, 352 N.Y.S.2d 464, 465 (App. Div. 1974) (currently codified at N.Y.
Est. Powers & Trusts Law § 11–3.2(a)(1) (McKinney, Westlaw through 2011 Sess.));
Harrell v. Bowen, 635 S.E.2d 498, 500 (N.C. Ct. App. 2006); Mongold v. Estate of Gilbert,
758 N.E.2d 1245, 1247–49 (Ohio Ct. C.P. 2000); Morriss v. Barton, 190 P.2d 451, 459–
60 (Okla. 1947); Ashcraft v. Saunders, 444 P.2d 924, 926–27 (Or. 1968) (currently
codified at Or. Rev. Stat. Ann. § 30.080 (West, Westlaw through 2011 emergency
session)); Aldrich v. Howard, 8 R.I. 125, 127 (1864) (currently codified at R.I. Gen. Laws
Ann. § 9–1–8 (West, Westlaw through Jan. 2010 Sess. Ch. 321)); Olson-Roti v. Kilcoin,
653 N.W.2d 254, 260–62 (S.D. 2002); Hayes v. Gill, 390 S.W.2d 213, 217 (Tenn. 1965);
In re Estate of Garza, 725 P.2d 1328, 1330 (Utah 1986); Dalton v. Johnson, 129 S.E.2d
647, 650–51 (Va. 1963) (subsequently codified at Va. Code Ann. § 8.01–25 (West,
Westlaw through 2011 Reg. Sess.)); McWilliams v. Bragg, 3 Wis. 424, 431 (1854)
(currently codified at Wis. Stat. Ann. § 895.02 (West, Westlaw through 2011 Act 31));
Parker v. Artery, 889 P.2d 520, 524–25 (Wyo. 1995); see also Restatement (Second) of
Torts §§ 908 cmt. a, 926(b) (1979).
       4Seventeen  of the thirty-one jurisdictions referenced in the previous footnote
deny punitive damage awards against tortfeasor estates as a matter of judicial
precedent, despite the lack of any statute directly on point. Furthermore, in a number
of the remaining fourteen jurisdictions, the statutes in question were adopted after
appellate courts had already ruled that punitive damages were not recoverable after the
wrongdoer died.
                                            11

statutes similar to Iowa Code section 611.20. 5 Nevertheless, their courts

found that punitive damage recoveries did not survive the death of the

tortfeasor.

       The minority view allows recovery of punitive damages even when

the wrongdoer has died. 6            But only about eleven jurisdictions have

adopted this position. And it would be difficult to argue there is a trend

toward it.     For example, within the last decade, supreme courts in at

least three states have ruled for the first time that punitive damages are

not recoverable after the tortfeasor’s death. 7

       Finally, our case presents another possible reason why it may be

appropriate for punitive damage claims to abate upon the death of the

tortfeasor. Here, the decedent Vajgrt entered upon Ernst’s property and

caused the trees to be removed in 2005, but Ernst did not seek judicial

redress until 2009, when he filed a claim in probate against Vajgrt’s

estate. While no one contests the timeliness of the claim, see Iowa Code

§ 614.1(4) (five-year statute of limitations for injuries to property), Vajgrt

       5Alaska Stat. Ann. § 09.55.570 (West, Westlaw through 2010 2nd Reg. Sess.);

D.C. Code § 12–101 (West, Westlaw through May 10, 2011); Fla. Stat. Ann. § 46.021
(West, Westlaw through July 1, 2011); Ind. Code Ann. § 34–9–3–1 (West, Westlaw
through 2011); Minn. Stat. Ann. § 573.01 (West, Westlaw through 2011 Reg. Sess. Ch.
19).
       6The  following jurisdictions currently follow this rationale: Ellis v. Zuck, 546 F.2d
643, 644–45 (5th Cir. 1977) (applying Alabama law); In re Thomas, 254 B.R. 879, 887
(D. S.C. 1999) (applying South Carolina law); Haralson v. Fisher Surveying, Inc., 31 P.3d
114, 115 (Ariz. 2001); Estate of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517, 521–22
(Del. 2001); Kaopuiki v. Kealoha, 87 P.3d 910, 924–28 (Haw. Ct. App. 2003); Penberthy
v. Price, 666 N.E.2d 352, 354–57 (Ill. App. Ct. 1996); Tillett v. Lippert, 909 P.2d 1158,
1161–62 (Mont. 1996); G.J.D. v. Johnson, 713 A.2d 1127, 1129–31 (Pa. 1998); Hofer v.
Lavender, 679 S.W.2d 470, 474–75 (Tex. 1984); Perry v. Melton, 299 S.E.2d 8, 11–13
(W. Va. 1982); see also Munson v. Raudonis, 387 A.2d 1174, 1177–78 (N.H. 1978)
(stating that although New Hampshire law does not allow for punitive damages,
compensatory damages survive the death of the tortfeasor and the “compensatory
damages awarded may reflect the aggravating circumstances” when wanton, malicious,
or oppressive conduct is involved).
       7See Crabtree, 837 N.E.2d at 139; Stewart, 102 S.W.3d at 916; Olson-Roti, 653
N.W.2d at 260–62.
                                     12

is no longer available to defend himself and testify why he did not act

with “willful and wanton disregard for the rights or safety of another.” Id.

§ 668A.1(1)(a). In a circumstance in which the actor’s state of mind is

important, direct evidence of that state of mind is no longer available.

        This argument can be pressed too far. Under the rule in Sheik,

punitive damages may not be recovered if the tortfeasor dies before

judgment, even if the tortfeasor had the opportunity to testify on his or

her own behalf.

        At the same time, we believe this is an area in which all the policy

arguments can be pressed too far.         For example, we doubt that the

typical tortfeasor makes a calculation about the possibility of a punitive

damage award against his or her estate, should he or she die before

judgment.     Thus, the marginal deterrence gain from a rule allowing

punitive damages to be awarded against decedent’s estate seems to us

relatively small.     All the more reason, therefore, to defer to our

established precedents and the legislature’s prior decisions not to disturb

them.

        IV. Conclusion.

        For the foregoing reasons, we affirm the judgment of the district

court, including its refusal to award punitive damages against Vajgrt’s

estate.

        AFFIRMED.

        All justices concur except Wiggins and Appel, JJ., who concur

specially, and Hecht, J., who dissents.
                                    13

                                            #10–1088, In re Estate of Vajgrt

WIGGINS, Justice (concurring specially).

      I write to concur specially. I agree with the well-reasoned dissent.

If we were to develop the common law further in this area, I might

overrule our prior precedents for the reasons stated in the dissent and

allow the court to award punitive damages awarded against the estate of

a deceased tortfeasor.   However, when the legislature jumped into the

arena of punitive damages in 1986, it left most of our common law rules

regarding punitive damages intact.       In this instance, the legislature’s

inaction as to these common law rules tips the scales not to overturn a

precedent in existence when the legislature passed Iowa Code chapter

668A (2009). Accordingly, I am unable to join the dissent.

      Appel, J., joins this special concurrence.
                                    14

                                          #10–1088, In re Estate of Vajgrt

HECHT, Justice (dissenting).

      The majority opinion follows the rule adopted by this court in Sheik

v. Hobson. In that case, decided in 1884, we summarily concluded “the

punitory powers of the law ceased when [the tortfeasor] died,” and we

expressed a disinclination to punish the wrongdoer’s heirs for their

benefactor’s malicious conduct. Sheik v. Hobson, 64 Iowa 146, 148, 19

N.W. 875, 875–76 (1884). Although this court has continued to follow

the holding announced in Sheik since it was decided, I believe the

rationale supporting the rule is gravely flawed, and I therefore would

reverse and remand.

      While acknowledging the importance of the doctrine of stare decisis

to the rule of law, this court has not hesitated to renounce flawed

common law rules. Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117,

121 (Iowa 1973). Our willingness to revisit such rules finds its source in

the sensible notion that fealty to stability in the law “should not be

invoked to maintain a clearly erroneous result simply because that’s the

way it has been in the past.” Id. This principle recognizes the reality

that courts sometimes make mistakes and concedes “we should be as

willing to correct our own mistakes as we are those of others.” Id. In my

view, this is one of those times.

      In rejecting the idea that punitive damages should not be

recoverable against a tortfeasor’s estate, the Arizona Supreme Court has

noted:
            There is no logical reason why courts should allow a
      punitive award against a defendant who survives a
      judgment, but deny it where death occurs earlier. Suppose,
      for example, two individuals commit equally culpable and
      outrageous acts. One is comatose and, for all practical
      purposes, has no reasonable chance of recovery. The other
                                      15
      is dead. Is there a way to explain why the unconscious
      tortfeasor would have his assets exposed to punitive liability,
      while the deceased’s estate would be immunized from it?

Haralson v. Fisher Surveying, Inc., 31 P.3d 114, 118 (Ariz. 2001).

Although courts following the majority rule have offered explanations for

the   rule   immunizing   tortfeasors’     estates   from   punitive   damage

judgments, I find none of them persuasive.

      Perhaps the most common explanation—one conclusorily noted by

this court shortly after the Civil War—suggests the purpose of

punishment cannot be achieved against a deceased tortfeasor. Sheik, 64

Iowa at 147–48, 19 N.W. at 875–76. While this proposition has some

logical appeal, I believe the law should, for purposes of punishment, view

punitive damages as an appropriate means to accomplish a form of

retribution against the departed. A tortfeasor’s testamentary or intestate

transfer of assets can have an impact on the lives of survivors long after

the tortfeasor’s death.    Just as his predeath misconduct can have

injurious consequences long after his death, a tortfeasor reaches beyond

the grave to effectuate property transfers through his estate. Although

the deceased tortfeasor is not physically present to personally experience

the retributive effects of any punitive damage judgment against his

estate, I believe it is reasonable to view the disruption of his preferred

plan of postdeath asset distribution as a form of punishment of the

deceased tortfeasor. Accordingly, I believe we were simply wrong when

we concluded in Sheik that the power of the law to punish a deceased

tortfeasor expires with his death.

      A second explanation offered by courts following the majority rule

posits that innocent beneficiaries should not suffer consequences for the

willful and wanton misconduct of benefactor–tortfeasors.         In my view,

this notion misses the mark.         A punitive damage award against the
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tortfeasor’s estate effects no punishment on the beneficiaries.         The

beneficiaries of the tortfeasor’s estate are affected by all manner of their

benefactor’s predeath choices and conduct.          In some instances a

benefactor’s predeath choices and conduct enhance, and in other

instances diminish, the economic outcomes for his beneficiaries.        For

better or worse, estate beneficiaries experience the consequences of their

benefactor’s predeath decisions and conduct for which they are not

legally or morally responsible. When a benefactor’s predeath choices or

conduct consistent with the law adversely affect the amount of assets

available for distribution from his estate, beneficiaries are not generally

shielded or held harmless. They take whatever assets are available to

them from the estate consistent with the prevailing law.            As the

Intermediate Court of Appeals of Hawaii has observed:
      The fact that the size of the tortfeasor’s estate would be
      reduced is not a valid reason for not entering the judgment
      for punitive damages against the tortfeasor’s estate. The
      beneficiaries of the estate of the tortfeasor have no right or
      entitlement to more than the tortfeasor would have had if he
      or she had lived, or to more than the net of the tortfeasor’s
      estate after payment of all legal obligations, including
      judgments against the estate for punitive damages.

Kaopuiki v. Kealoha, 87 P.3d 910, 928 (Haw. Ct. App. 2003).

      Where the legislature has not directed otherwise, the common law

of Iowa should allow punitive damage judgments against estates.         The

contrary rule announced in Sheik comes at far too great a cost to the

legitimate purpose of punishment served by punitive damage judgments.

      But aside from the question of whether the purpose of punishment

can, and as I believe, it should, be achieved through a punitive damage

remedy against the estate of a tortfeasor who willfully and wantonly

injures another, I would overrule Sheik in furtherance of the purpose of

deterrence alone. See Penberthy v. Price, 666 N.E.2d 352, 356–57 (Ill.
                                    17

App. Ct. 1996) (finding a sufficient deterrent purpose for punitive

damages against a tortfeasor’s estate even if the purpose of tortfeasor

punishment is not achieved). As the majority opinion correctly notes, the

goal of deterrence may be viewed specifically and generally.         In the

context of specific deterrence, the inquiry is whether a specific tortfeasor

would be motivated by the prospect of his liability for punitive damages

to refrain from willful and wanton misconduct. In the context of general

deterrence, the question is whether other potential actors will tend to

avoid willful and wanton misconduct as a consequence of a punitive

damage judgment against the specific tortfeasor’s estate.       I believe a

common law rule authorizing a judgment for punitive damages against

the estate of a tortfeasor who willfully or wantonly injured another

powerfully serves as a deterrent in both contexts.

      The tortfeasor who understands the distribution of the assets in

his estate could be disrupted by a judgment for punitive damages—

should he die as a consequence of his willful or wanton misconduct

against another or from other causes prior to the entry of a civil

judgment—will likely be deterred by the prospect.          The purpose of

deterrence is clearly advanced when a living, potential tortfeasor knows

his estate plan, usually benefitting a spouse, children, family, or friends,

will be disrupted by a punitive damage judgment if he engages in willful

and wanton tortious conduct, whether he survives the imposition of

judgment or not. The rule announced in Sheik and reaffirmed in this

case by the majority militates against the purpose of specific deterrence

for certain tortfeasors, such as one who is terminally ill or elderly or one

who is contemplating a willful or wanton act calculated to cause his own

death and harm another, by assuring them a crude advantage over the

tortfeasor who survives his willful and wanton tort and civil judgment.
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      Deterrence in the general sense would also be maximized by a rule

allowing judgments for punitive damages against tortfeasors’ estates.

Others perceiving judgments for punitive damages against tortfeasors’

estates will be deterred from willful or wanton misconduct, knowing that

their estate plans and loved ones will be similarly affected by their willful

and wanton misconduct.         The extraordinary importance of general

deterrence alone justifies, in my view, the reversal of Sheik and the

adoption of a new rule. Accordingly, I respectfully dissent.
