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

the Court. 

Defendant State Farm Mutual (State Farm) appeals an 

award of damages to the plaintiff. Plaintiff cross-appeals 

a District Court ruling that reduced a punitive damage award 

by the percentage that the plaintiff was found to be contributorily negligent. We affirm the award of damages to the 

plaintiff and reverse the reduction of punitive damages. 

A State Farm 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 in defense, simply relying upon 

his notice to State Farm that the wrong party had been sued. 

State Farm eventually determined that the correct party was 

Bahram Shahrokhfar, and action was immediately taken to set 

aside the default judgment and reinstate plaintiff's driving 

privileges. The plaintiff subsequently sued State Farm 

grounded in the negligence of its agent and attorney, 

Robert Heath. The jury found: 

1. State Farm, 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 sixteen percent to the 

plaintiff . 

6. The jury found actual damages in the amount of $850 

and punitive damages in the amount of $80,000. 

The trial judge reduced the entire damage award by the 

sixteen percent that the plaintiff was found to be negligent. 

The following issues are raised by appellant: 

1. Did the District Court err in failing to grant 

defendant's motion for a directed verdict based on plaintiff's failure to call an expert witness? 

2. Did the District Court err in giving the standard 

negligence instruction instead of a negligence instruction 

tailored to the duty owed by an attorney? 

3. Did the District Court err in failing to withdraw 

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 District Court err in failing to instruct on 

mitigation of damages? 

6. Did the District Court err in not requiring the jury 

to return a general verdict reducing the amount of damages 

themselves rather than reserving that matter for the court? 

Plaintiff, as cross-appellant, raises the following 

issue: 
1. Did the District Court err in reducing the punitive 

damage award by the percentage that the jury found the 

plaintiff to be negligent? 

State Farm first argues that the District Court should 

have directed a verdict in favor of defendant because plaintiff did not produce an expert to testify that State Farm's 

agent, Robert Heath, was negligent. We hold that an expert 

witness was not necessary under these circumstances. The 

rule is well-established in Montana that, regarding matters 

". . . with respect to which a layman can have no knowledge 

at all, the court and jury must be dependent on expert 

evidence." Callahan v. Burton (1971), 157 Mont. 513, 520, 

487 P.2d 515, 518-519, quoting Schwnacher v. Murray Hospital 

(1920), 58 Mont. 447, 462, 193 P. 397, 402. State Farm 

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 is necessary in order to determine whether 

the conduct conformed to acceptable practice for an attorney 

under similar circumstances. 

In this case State Farm's agent, Robert Heath, an 

attorney, filed the complaint against a person who was not 

involved in the accident. Though this fact was brought to 

the attention of 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 realm of knowledge of a layperson. Nothing legally 

technical is involved in judging Heath's conduct. Expert 

testimony is not required and, under the facts of this case, 

would not have been helpful. 
The second issue urged by appellant is that the District Court failed to properly instruct the jury on a 

"negligence standard . " 

Court's instruction no. 6 stated: 

"Every person, or corporation, 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 in these instructions). 

When used in these instructions, negligence means 

want of such ordinary care or skill. Such want 

of ordinary care or skill exists when there is 

a failure to do that which a reasonable and 

prudent person would ordinarily have done under 

the circumstances of the situation, or doing 

what such person under the existing circumstances 

would not have done. " 

State Farm objected to the instruction for the reason that 

State Farm' s attorney, Robert Heath, was acting in his 

professional capacity and the skill required of him was 

ordinary skill of a professional practicing in the same 

profession. Defendant proposed an instruction which provided: 

"By undertaking professional service to a 

client, an attorney represents that he has the 

necessary degree of skill and learning to do 

so. That decree [sic] of skill and learning 

is generally measured by the skill and learning 

possessed by other attorneys in good standing 

practicing in similar localities under similar 

circumstances . 

"It is his further duty to use that skill and 

learning as ordinarily used in like cases by 

reputable members of his profession practicing 

in similar localities and under similar circumstances and to be diligent and use his best 

judgment and learning in an effort to accomplish 

the purpose for which he is employed. 

"The violation of any of these duties is a form 

of negligence. 

"If you should find that Robert E. Heath failed 

to carry our [sic] on any one or more of these 

duties and such failure was the proximate cause 

of the damage to which the plaintiff complains, 

then your verdict must be for the plaintiff. 
"The way in which you may decide whether Robert 

E. Heath possessed and used the knowledge and 

skill and care which the law demands of him is 

from evidence presented in this trial by attorneys called as expert witnesses." 

Our disposition of the first issue resolves the propriety of giving the above-quoted instruction offered by 

State Farm. We have held that it was not necessary to call 

an expert witness and, therefore, it would have been improper 

to give the instruction offered by defendant. 

Had defendant offered the instruction without reference 

to the necessity of calling expert witnesses, nevertheless, 

the District Court could not have committed error prejudicial to defendant State Farm by giving a standard instruction on negligence and refusing the instruction proposed by 

State Farm. An instruction which caused State Farm1 s attorney, Robert Heath, to be judged by professional standards 

would only increase the standard of care and require more of 

State Farm's attorney than was required under the instruction given by the court. Under these circumstances, State 

Farm clearly cannot claim prejudice. 

In its third assignment of error, State Farm contends 

that punitive 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 to justify 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 to justify submission of punitive damages to the 

jury. Lauman v. Lee (1981), - Mont. - , 626 P.2d 830, 38 
St-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 did make a finding of compensatory damage and awarded 

$850 therefor. Under these facts there was sufficient 

evidence of compensatory damage to justify 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 State Farm. This contention is 

disposed of in Graham v. Clarks Fork Nat. Bank (1981), - 

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

case we found sufficient evidence to justify 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 in Klind v. Valley County 

Bank (1924), 69 Mont. 386, 222 P. 439. In this case State 

Farm sued the wrong person and though advised of its mistake, 

refused to make a correction. As in Graham, these facts are 

sufficient for the jury to determine that State Farm acted 

recklessly and that it be subject to the sanction of punitive 

damages. 

Next, appellant urges reversal for failure of the 

District Court to instruct the jury on "assumption of risk. " 

State Farm submitted an assumption of risk instruction which 

was refused. State Farm contends that the plaintiff assumed 
the risk by failing to obtain legal counsel and allowing 

State Farm to proceed to a default judgment. 

Assumption of risk is a defense which finds its roots 

in the employee/employer relationship. Its application to 

tortious conduct outside that relationship should be narrowly confined. The essence of assumption of risk is a 

contention that plaintiff voluntarily exposed himself to a 

danger which was fully appreciated. The conduct involves a 

subjective standard rather than the objective standard 

applicable to contributory 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 to the 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 

District Court did not abuse its discretion in failing 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 act of another is bound to exercise 

reasonable care and diligence to avoid loss 

and to minimize the damages, and he may not 

recover for damages which could have been 

prevented by reasonable efforts on his part 

or by expeditures [sic] that he might reasonably have made." 

Counsel for the plaintiff objected to the proposed 

instruction for the reason that the District Court had 

previously instructed on comparative negligence and the 

mi tigation instruction was repeti. tious . Plaintiff further 

argued that the proposed instruction was in conflict with 
the comparative negligence instruction because failure to 

mitigate damage could prevent recovery rather than reduce 

recovery. The District Court refused the instruction. 

State Farm argues for mitigation premised upon the same 

facts submitted to the jury for consideration under comparative 

negligence. We agree with the plaintiff that, under the 

facts of this case, it would have been improper to instruct 

on "mitigation of damages." The jury properly was allowed 

to consider plaintiff's conduct in failing to respond to the 

summons and in failing to retain 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 court properly refused to inject 

this repetitious and potentially confusing issue. 

The last issue raised by State Farm claims error in the 

District Court's refusal to allow the jury to return a 

general verdict. Special interrogatories, usually strongly 

supported by defense attorneys, were submitted to the jury 

and the jury made special findings which have been previously 

set forth 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 that plaintiff was negligent but 

that such negligence was not a proximate cause of plaintiff's 

damage. However, the jurors, when later questioned by the 

District Court, stated that they intended to reduce plaintiff's award by the percentage the jury found plaintiff to 

be negligent. Eased upon this assurance, the District Court 

reduced plaintiff's damages by sixteen percent, the percentage found by the jury to represent plaintiff's negligence. 
Both the compensatory and punitive awards were so reduced. 

The jury's explanation to the District Court was inconsistent with 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 to be 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 to punish 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 that punitive 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 are reduced by plaintiff's contributory negligence in the amount of sixteen 

percent. The punitive damage award in the amount of $80,000 

is affirmed in total. This case is remanded to the District 

Court with directions to enter judgment accordingly. 
We concur: 

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