OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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Search conducted by: Joyce Zweben Scall

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COALEX STATE INQUIRY REPORT - 114 

May 16, 1989 

Miles Franklin, Esquire 

Natural Resources and Environmental Protection Cabinet 

Department of Law - 5th Floor

Capitol Plaza Tower

Frankfort, Kentucky 40601 

TOPIC: SURVIVAL OF CIVIL PENALTIES

INQUIRY:

Are civil penalties abated upon a permittee's death or do they survive to be assessed against the 

individual's estate?

SEARCH RESULTS:

Research was conducted using both COALEX and LEXIS. One federal decision directly on point 

was identified. Several related federal decisions and one American Law Reports Annotation 

were also identified. A list of the materials and the topics they address follow. Copies are 

enclosed. 

U.S.A. v ELIZABETH CARTER EDWARDS AND ELIZABETH CARTER EDWARDS, 

EXECUTRIX OF THE ESTATE OF JOSEPH CARTER, 667 F. Supp. 1204 (W.D. Tenn. 

1987).

 This case concerns violations of the Rivers and Harbors Act of 1899 and the Clean Water Act 

of 1977. When one defendant, Joseph Carter, died Elizabeth Carter Edwards, in her capacity as 

the Executrix of his estate, was substituted as a party defendant. The court determined that the 

civil penalty was penal in character, did not survive Carter's death and could not be assessed 

against his estate. The opinion provides an excellent overview of relevant case law which is 

summarized below: 

1. According to SCHREIBER v SHARPLESS, 110 U.S. 76 (1884), actions on "penal 

statutes" (in this case, copyright infringement) do not survive the death of the defendant. 

This 19th century case was determined by common law since no relevant federal statutes 

existed and is "still the law". The court in USA v EDWARDS went on to show that the 

civil penalty at issue was "penal". 

2. The factors used to determine if actions are "penal" were established in MURPHY v 

HOUSEHOLD FINANCE CORP., 560 F.2d 206 (6th Cir. 1977). They are: "(1) whether 

the purpose of the statute was to redress individual wrongs or more general wrongs to the 

public; 2) whether recovery under the statute runs to the harmed individual or to the 

public; and 3) whether the recovery authorized by the statute is wholly disproportionate 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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to the harm suffered."

In this bankruptcy case, the court held that the actions were remedial not penal, therefore, 

the trustee of the estate has standing to sue under the Truth in Lending Act (TILA), i.e., 

the cause of action was "transferable". To reach his conclusions the court analyzed 

whether a TILA action would survive the death of a debtor plaintiff and concluded that 

the action would survive. 

3. In applying the first factor from the MURPHY case, the court in USA v EDWARDS 

cited to another TILA case, PORTER v HOUSEHOLD FIN. CORP., 385 F. Supp. 336 

(S.D. Ohio 1974), which found that "[t]he true test is whether the wrong to be remedied 

or punished is primarily to an individual or to the State." TILA actions redress wrongs to 

individuals; Clean Water Act provisions for civil penalties redress wrongs to the general 

public. 

4. Regarding the second factor, EDWARDS held that Clean Water Act penalties are "...paid 

to the government and not to any individual...[I]n antitrust, patent/copyright 

infringement, securities fraud, and truth in lending actions, where the penalty survives the 

wrongdoer's death, any recovery of the so called 'penal' damages is paid to the injured 

party and not the government." 

5. Finally, the "enhanced [treble] damages" and civil penalty provisions in federal statutes 

other than the Clean Water Act, e.g., antitrust, patent and securities fraud actions as well 

as civil fraud penalties in tax cases, were determined not to be penal and, therefore, 

survived a defendant's death. In contrast, the treble damages provision of the Emergency 

Price Control Act of 1942, the purpose of which was to protect the general public during 

wartime, was held to be penal. In the EDWARDS case, it is difficult to determine the 

amount of the "harm suffered", therefore, the "disproportionate harm" factor "does not 

appear to be critical" here. 

Also see SMITH v NO. 2 GALESBURG CROWN FINANCE CORP., 615 F.2d 407 (7th Cir. 

1980), and Annotation "Survivability of Action Brought Under Truth In Lending Act", 53 A.L.R. 

Fed. 431 (1988), included as attachments. 

ATTACHMENTS

A. U.S.A. v EDWARDS, 667 F. Supp. 1204 (W.D. Tenn. 1987) 

B. SCHREIBER v SHARPLESS, 110 U.S. 76 (1884) 

C. MURPHY v HOUSEHOLD FIN. CORP., 560 F.2d 206 (6th Cir. 1977) 

D. PORTER v HOUSEHOLD FIN. Corp., 385 F. Supp. 336 (S.D. Ohio 1974) 

E. SMITH v NO. 2 GALESBURG CROWN FIN. CORP., 615 F.2d 407 (7th Cir. 1980) 

F. Annotation "Survivability of Action Brought Under Truth In Lending Act", 53 A.L.R. 

Fed. 431 (1988)