### No. 80-466 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

SHAHFUN SHAHROKHFAR, Plaintiff and Respondent,

STATE 

### FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin Honorable Joseph Gary, Judge presiding. Counsel of Record: For Appellant: Lyman 

### H. Bennett, I11 argued, Bozeman, Montana For Respondent: Anderson, Edwards and Molloy, Billings, Montana 

### A. Clifford Edwards argued, Billings, Montana

Filed:

## 3Cr 

## r i

# ?98F Submitted: September 21, 1981 Decided: V

### .. 

### OCT 1

### 4 1947Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

Defendant State Farm Mutual (StateFarm) appeals an award of damages to the plaintiff. Plaintiff cross-appeals

a DistrictCourt ruling that reduced a punitive damage award by the percentage that the plaintiff 

### was found tobe contributorily negligent. We affirm the award of damages to the plaintiff and reverse the reduction of punitive damages. A StateFarm insured had an automobile accident with

one Bahram Shahrokhfar, brother of the plaintiff. State Farm paid the property damage of 

### its insured and then, through an exercise of subrogation rights, filed an action to collect damages from the allegedly negligent third party. However, instead of suing Bahram Shahrokhfar, State Farm, through 

### its agent, Robert Heath, mistakenly sued Shahram Shahrokhfar. The plaintiff, although disputed by State Farm, testified he advised State Farm that the wrong person had been sued. Nevertheless default judgment was taken against the plaintiff and thereafter his driving privileges

were suspended. The plaintiff knew about the lawsuit but refused to take any action indefense, simply relying upon his notice to State Farm that the wrong party had been sued. StateFarm eventually determined that the correct party was Bahram Shahrokhfar, and actionwas immediately taken to 

### set aside the default judgment and reinstateplaintiff's driving privileges. The plaintiff subsequently sued State Farm grounded inthe negligence of its agent and attorney, Robert Heath. The jury found: 1. StateFarm, acting through 

### its agent, Robert Heath,



### was negligent.2. Such negligence was 

### a proximate cause of the plaintiff's damage. 3. The plaintiff was contributorily negligent. 4. Plaintiff's contributory negligence was not a proximate cause of his damage. 5. Negligence was apportioned on the basis of eightyfour percent to the defendant and sixteenpercent to the plaintiff

# . 6. The jury found actual damages in the amount of $850 and punitive damages inthe amount of $80,000. The trialjudge reduced the entire damage award by the sixteen percent that the plaintiff 

### was found tobe negligent. The following issues 

### are raised by appellant: 1. Did the DistrictCourt 

### err infailing to grant defendant's motion for 

### a directed verdictbased on plaintiff's failure to call an expert witness? 2. Did the DistrictCourt erringiving the standard negligence instruction instead of a negligence instruction tailored to the duty owed by an attorney? 3. Did the District Court 

### err infailing towithdraw the question of punitive damages from the jury? 4. Did the District Court 

### err in failing to instruct the jury on the doctrine of assumption of risk? 5. Did the DistrictCourt 

### err in failing to instruct on mitigation of damages? 6. Did the DistrictCourt 

### err innot requiring the jury toreturn a general verdict reducing the amount of damages themselves rather than reserving thatmatter for the court? Plaintiff, as cross-appellant, 

### raises the following issue:1. Did the DistrictCourt 

### err inreducing the punitive damage award by the percentage that the jury found the plaintiff tobe negligent? StateFarm firstargues that the District Court should have directed a verdict infavor of defendant because plaintiff did not produce an expert to testify that StateFarm's agent, Robert Heath, was negligent. We hold that an expert witness 

### was not necessary under these circumstances. The rule 

### iswell-established inMontana that, regarding 

### matters 

# ".

. . with respect towhich a layman can have no knowledge 

### atall, the court and jury must be dependent on expert evidence." Callahan v. Burton (1971), 157Mont. 513, 520, 487 P.2d 515, 518-519, quoting Schwnacher v. Murray Hospital (1920), 58 Mont. 447, 462, 193P. 397, 402. StateFarm argues that the action of 

### its agent, Robert Heath, in filing



### a complaint against the wrong defendant (1)involves the technical expertise of an attorney, (2) must be judged by the standards applicable to attorneys, and (3) the testimony of an attorney 

### isnecessary inorder todetermine whether the conduct conformed to acceptable practice for an attorney under similar circumstances. In this case StateFarm's agent, Robert Heath, an attorney, filed the complaint against

### a person who 

### was not involved inthe accident. Though this factwas brought to the attentionof Heath, the litigation

### was pursued to judgment. Whether the actions of State Farm's agent and attorney under these circumstanceswere"negligent" was well within the realmof knowledge of a layperson. Nothing legally technical 

### is involved injudging Heath's conduct. Expert testimony 

### isnot required and, under the facts of this case, would not have been helpful.

### The second issueurged by appellant

### is that the Dis

### trict Court failed toproperly instruct the jury on a "negligence standard

# ." 

### Court's instruction no. 6 

### stated: "Every person, orcorporation, is

### responsible for injury to the person or property of another, caused by want of ordinary care or skill, (subject to the doctrine of comparative negligence, which is

### defined elsewhere inthese instructions). When used inthese instructions, negligence means want of such ordinary care or skill. Such want of ordinary care or skillexists when there is 

### a failure to do thatwhich a reasonable and prudent person would ordinarilyhave done under the circumstances of the situation, or doing what such person under the existing circumstances would not have done.

### " StateFarm objected to the instruction for the reason that StateFarm's attorney, Robert Heath, was acting inhis professional capacity and the skillrequired of him was ordinary skill of a professional practicing inthe same 

### profession. Defendant proposed an instruction which provided: "By undertaking professional service to a client, an attorneyrepresents thathe has the necessary degree of skilland learning todo so. That decree [sic] of skilland learning is

### generally measured by the skilland learning possessed by other attorneys ingood standing practicing in

### similar localitiesunder similar circumstances

# . "It

### is

### his further duty touse that skilland learning asordinarilyused inlike casesby reputable members of hisprofession practicing in similar localities and under 

### similar circumstances and tobe diligent and use his best judgment and learning inan effort to accomplish the purpose forwhich he 

### is employed. "The violation of any of these duties is 

### a form of negligence. "If you should find thatRobert E. 

### Heath failed to carry our [sic] on any one ormore of these duties and such failure was the proximate cause of the damage towhich theplaintiff complains, then your verdictmust be for the plaintiff.

### "The way inwhich you may decide whether Robert E. 

### Heath possessed and used the knowledge and skilland carewhich the law demands of him 

### is from evidence presented in this trial by attorneys called as expertwitnesses." Our disposition of the firstissue resolves the propriety of giving the above-quoted instruction offered by StateFarm. We have held that it 

### was not necessary to call

an expert witness and, therefore, it

### would have been improper togive the instruction offered by defendant. Had defendant offered the instructionwithout reference to the necessity of calling expertwitnesses, nevertheless, the District

### Court could not have committed error prejudicial 

### todefendant StateFarm by giving a standard instruction on negligence and refusing the instructionproposed by StateFarm. An instructionwhich caused StateFarm1s attorney, Robert Heath, tobe judged by professional standards would only increase the standard of care 

### and requiremore of StateFarm's attorney than was required under the instructiongiven by the court. Under these circumstances, State Farm clearly cannot claim prejudice. In its third assignment of error, StateFarm contends thatpunitive damages should have been withdrawn from the jury. Appellant argues that (1)

### there was no evidence of compensatory damage, and (2) 

### the conduct of State Farm 

### was legally insufficient tojustify the submission of a 

### punitive damage issue. There was 

### evidence from which the jury could infer that the plaintiff suffered restrictions, and thereby compensatory damage, from having his driving privileges revoked. Any substantial credible evidence of compensatory damages is 

### sufficient tojustify submission of punitive damages to the jury. Lauman v. Lee (1981), 

## -Mont. 

# - , 626 P.2d 830, 38St-Rep. 499. In Lauman 

### we affirmed an award of punitive damages although the jury failed to find any specific dollar amounts of compensatory damage suffered. In this case the jury didmake a finding of compensatory damage and awarded $850 therefor. Under these facts there was sufficient evidence of compensatory damage tojustify the submission of the punitive damage issue. Next, appellant alleges error in submission of punitive damages claiming insufficient evidence of reprehensible conduct on the part of StateFarm. This contention 

### is disposed of inGraham 

### v. Clarks Fork Nat. Bank (1981), 

### - Mont. 

## , 631 P.2d 718, 38 St.Rep. 1140. In the Graham

case 

### we found sufficient evidence tojustify the submission of punitive damages from the following facts: (1)The defendant had seized plaintiff's cows, mistakenly thinking they belonged to a bank debtor; and (2) when the plaintiff attempted to recover his cows, the bank adamantly refused to divulge their location and thereafter returned them to the wrong location. We held that such facts raised an issue for the jury's consideration of punitive damages under the "recklessness" standard enunciated inKlind v. Valley County Bank (1924), 69 Mont. 386, 222 P. 439. In this case State Farm sued thewrong person and though advised of 

### itsmistake, refused tomake a correction. As inGraham, these facts are sufficient for the jury to determine that StateFarm acted recklessly and that it be subject to the sanction of punitive damages. Next, appellant urges reversal for failure of the DistrictCourt to instruct the jury on "assumption of risk.

### " StateFarm submitted an assumption of risk instructionwhich

was refused. StateFarm contends that the plaintiff assumed

### the risk by failing to obtain legal counsel and allowing StateFarm toproceed toa default judgment. Assumption of risk isa 

### defense which finds its roots inthe employee/employer relationship. Its 

### application to tortious conduct outside thatrelationship should be narrowly confined. The essence of assumption of risk is 

### a contention thatplaintiff voluntarily exposed himself to a danger which was fully appreciated. The conduct involves a subjective standard rather than the objective standard applicable tocontributory negligence. Brown 

### v. North Am. 

### Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711. Here 

### the District

### Court determined there was sufficient evidence of carelessness on the plaintiff's part to require submission of contributory negligence tothe jury. However, the trial court determined that assumption of risk 

### was not applicable. There is

### no evidence that the plaintiff fully appreciated the risk of not obtaining legal counsel. The DistrictCourt did not abuse its 

### discretion infailing to instruct on the defense of "assumption of risk." Appellant requested the trial 

### court to instruct on "mitigation of damages" and proposed the following instruction: "A person who has sustained damage by the wrongful actof another is

### bound to exercise reasonable care and diligence toavoid loss and tominimize the damages, and he may not recover for damages which could have been prevented by reasonable effortson hispart or by expeditures [sic] thathe might reasonably have made." Counsel for the plaintiff objected to the proposed instruction for the reason that the DistrictCourt had previously instructed on comparative negligence and the mi 

### tigation instructionwas repeti. tious

# . Plaintiff further argued that the proposed instruction

### was inconflictwith

### the comparative negligence instructionbecause failure to mitigate damage could prevent recovery rather than reduce recovery. The District

### Court refused the instruction. StateFarm argues formitigation premised upon the same facts submitted to the jury for consideration under comparative negligence. We

### agreewith theplaintiff that, under the facts of this case, it

### would have been improper 

### to instruct

on "mitigation of damages." The jury properlywas allowed to consider plaintiff's conduct infailing to respond to the

summons and infailing toretain counsel, under the comparative negligence instruction. Any negligence found to exist would properly reduce compensatory damages suffered. Nothing else could be accomplished with a "mitigation of damage" instruction and the trial 

### courtproperly refused to inject thisrepetitious and potentially confusing issue. The lastissue raised by State Farm claims

### error inthe District

### Court's refusal to allow the jury toreturn a general verdict. Special interrogatories, usually strongly supported by defense attorneys, were submitted to the jury and the jury made special findingswhich have been previously setforth in this opinion. The special findings of the jury could not have worked any prejudice for State Farm, 

### but do provide the basis for plaintiff's cross-appeal. The verdict form found thatplaintiff 

### was negligent but that such negligence 

### was not a proximate cause of plaintiff's damage. However, the jurors, when later questioned by the DistrictCourt, stated that they intended to reduce plaintiff's award by the percentage the jury found plaintiff to be negligent. Eased upon this assurance, the DistrictCourt reduced plaintiff's damages by sixteenpercent, the percentage found by the jury torepresent plaintiff's negligence.Both the compensatory and punitive awards 

### were so reduced. The jury's explanation to the DistrictCourt was inconsistentwith the finding made by the jury on the verdict form. However, the only party who could be prejudiced was the plaintiff and the plaintiff does not claim error. Plaintiff concedes that the compensatory award can be reduced by sixteen percent although on the verdict form plaintiff's negligence was not found tobe a proximate cause of damage. Plaintiff only assigns error arising out of reduction of the punitive damage award. This Court has not previously ruled on the question of whether punitive damages can be reduced by the percentage of plaintiff's contributory negligence. Since the purpose of punitive damages 

### is topunish the defendant and not to compensate the plaintiff, 

### we find that such an award bears

no reasonable relationship to the plaintiff's conduct. Therefore, 

### we hold thatpunitive damages cannot be reduced by the percentage of plaintiff's contributory negligence. This holding 

### is supported by other jurisdictions. Arnoco Pipeline Co. v. Montgomery (W.D. Ok. 1980), 487 F.Supp. 1268; Tampa Electric Co. v. Stone & Webster Engineering Corp. (M.D. Fla., Tampa Div., 1973), 367 F.Supp. 27. The compensatory damages of $850 arereduced by plaintiff's contributory negligence inthe amount of sixteen percent. The punitive damage award inthe amount of $80,000 is affirmed 

### in total. This case isremanded to the District Court with directions to enter judgment accordingly.We concur: 

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