Present: All the Justices
GERALD G. WILKINS
OPINION BY
v. Record No. 022983 JUSTICE DONALD W. LEMONS
October 31, 2003
PENINSULA MOTOR CARS, INC.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
In his suit against Peninsula Motor Cars, Inc.
(“Peninsula”), a jury awarded Gerald G. Wilkins (“Wilkins”)
enhanced damages of $12,000, a sum conceded by Peninsula to
represent the trebling of $4,000 in actual damages under the
Virginia Consumer Protection Act, Code §§ 59.1-196 to -207
(“VCPA”). By agreement of the parties, the issue of
attorney’s fees and costs pursuant to Code § 59.1-204(B) was
reserved for determination by the trial court and was later
fixed at $34,183. Also, in his claim for common law fraud,
the jury awarded Wilkins $1,862.86 in actual damages and
$100,000 in punitive damages. In this appeal, we consider
whether the trial court erred in requiring Wilkins to elect
between his remedies.
I. Facts and Proceedings Below
On March 30, 1999, Gerald Wilkins purchased a 1998 BMW
540I from Peninsula. An employee of Peninsula represented to
Wilkins that the car was new despite the fact that the car’s
odometer had recorded 972 miles. In fact, the car had been
previously titled and was considered a used car.
Wilkins discovered Peninsula’s misrepresentations when he
received the title to the car in the mail. Wilkins brought an
action against Peninsula for fraud, violation of the VCPA, and
violation of the federal Odometer Act. After the close of
evidence, the trial court struck the Odometer Act claim.
After the jury returned the verdict and in response to a
motion by Peninsula, the trial court required Wilkins to elect
between the two verdicts. The trial court explained that
Wilkins had “advanced two alternative theories of recovery
based on a single transaction or occurrence” and ruled that
allowing Wilkins to receive both verdicts would permit a
double recovery for his loss.
Wilkins conceded that receiving both $100,000 punitive
damages for the fraud claim and the additional $8000 above
actual damages for his claim under the VCPA would constitute a
double recovery. He also conceded that receiving both
$1,862.86 under the fraud claim and $4000 of the $12,000
enhanced damages under the VCPA claim would constitute double
recovery of actual damages. However, Wilkins maintained that
no election between the two verdicts should be required and
that he should receive $4,000 in compensatory damages,
$100,000 in punitive damages, and the attorney’s fees
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associated with his VCPA claim. The trial court held that by
“awarding damages under the VCPA and the plaintiff’s fraud
cause of action, the jury essentially compensated the
plaintiff and punished the defendant twice.” Wilkins appeals
the adverse judgment of the trial court requiring his election
between verdicts based upon separate causes of action.
II. Analysis
The issue before us involves a question of law. We
review de novo the trial court’s determination that Wilkins
was required to elect between his verdicts. Eure v. Norfolk
Shipbldg. & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663,
667 (2002).
The genus of election of remedies has many species. This
case is not about claims that are irreconcilable, such as a
claim for rescission of the contract accompanied by a claim
for specific performance. Nor does this issue involve
questions of election between remedies at law or in equity.
The only election of remedies issue presented in this case is
whether the bar against double recovery justifies the trial
court’s requirement that Wilkins elect between verdicts. We
had previously stated that the trial court must assure that a
verdict, while fully and fairly compensating a plaintiff for
loss, does not include duplicative damages. Tazewell Oil Co.
v. United Virginia Bank, 243 Va. 94, 113, 413 S.E.2d 611, 621-
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22 (1992). While the precise circumstances presented by this
case have not been addressed in Virginia, the principles
resolving the matter are not unfamiliar.
In determining whether multiple damage awards constitute
impermissible double recovery, the trial court must consider
the nature of the claims involved, the duties imposed and the
injury sustained. Advanced Marine Enterprises v. PRC Inc.,
256 Va. 106, 124, 501 S.E.2d 148, 159 (1998). In Advanced
Marine, the trial court had entered judgment of treble damages
on a claim pursuant to Code § 18.2-499 and -500 for conspiracy
to injure plaintiff in its reputation, trade, business or
profession. Additionally, the trial court had entered
judgment for punitive damages on three separate counts
involving “breach of fiduciary duty, intentional interference
with contractual relations, and intentional interference with
prospective business and contractual relations.” Id.
Concluding on appeal that the awards were not duplicative, we
stated:
The awards of punitive and treble damages were
based on separate claims involving different
duties and injuries. . . . To prevail in its
business conspiracy claim, PRC was required to
prove that the defendants combined, associated,
agreed, or acted in concert together for the
purpose of willfully and maliciously injuring
PRC in its business “by any means whatever.”
Code § 18.2-499. In contrast the [other claims]
do not require such proof and relate solely to
the employment relationship between PRC and the
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PRC Managers and employees. Thus, the
chancellor did not err in awarding PRC both
punitive and treble damages.
Id. at 124-25, 501 S.E.2d at 159.
However, when the claims, duties, and injuries are the
same, duplicative recovery is barred. In Moore v. Virginia
Int’l Terminals, 254 Va. 46, 49, 486 S.E.2d 528, 529 (1997),
we affirmed the right of an injured worker to seek
compensation under either or both the federal Longshore Act
and the state workers’ compensation statutes, but “[t]he
claimant, however, is entitled to only a single recovery for
his injuries.”
Unlike the circumstances presented in Advanced Marine,
the causes of action brought by Wilkins have the potential for
duplication of damages. However, Wilkins concedes that he is
only entitled to one award of compensatory damages, one award
of exemplary damages, and one award of attorney’s fees. He
does not seek a judgment for the actual damages awarded in the
VCPA claim in addition to the actual damages awarded in the
fraud claim. He maintains that the trebled portion of the
verdict under the VCPA is in the nature of exemplary or
punitive damages and does not seek recovery of that portion of
the award in addition to the punitive damage award. * Wilkins
*
Consequently, we are not presented with the issue
whether the enhanced damages under the statutory conspiracy
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argues that judgment should be entered in his favor for $4,000
actual damages (from the VCPA claim), $100,000 punitive
damages (from the fraud claim), and $34,183 in attorney’s fees
and costs (ancillary to the VCPA claim). Acknowledging that
the trial court was required to assure that there was not
duplicative recovery, he argues that the trial court erred in
requiring him to elect between his verdicts based upon the
different causes of action. We agree with Wilkins.
This case does not present irreconcilable causes of
action which would require Wilkins to elect between them.
Rather, this case involves causes of action with different
elements of proof and potentially duplicative damage awards.
In these circumstances, Wilkins is entitled to full and fair
compensation but not duplicative compensation. The trial
court erred in requiring Wilkins to choose between causes of
action, when all that was required was supervision of the
damage awards to avoid double recovery.
Additionally, Peninsula argues that an award of
attorney’s fees and costs under the VCPA is duplicative of
punitive damages. The plain language of the statute defeats
this argument. Code § 59.1-204(B) clearly states,
claim are duplicative of the punitive damages in the fraud
claim. See United Laboratories, Inc. v. Kuykendall, 437 S.E.2d
374 (N.C. 1993).
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“Notwithstanding any other provision of law to the contrary,
in addition to any damages awarded, such person also may be
awarded reasonable attorney’s fees and court costs.”
Peninsula suggests that such language was intended to apply
only to damages awarded under the VCPA and does not apply to
circumstances where damages are awarded for an independent
cause of action. First, damages were awarded under the VCPA
in this case. Second, if the General Assembly had intended
such a restrictive view of a remedial statute, such an effect
could have been evinced by plain language. See, e.g., City of
Richmond v. Richmond Metro. Auth., 210 Va. 645, 648, 172
S.E.2d 831, 833 (1970); Greenberg v. Commonwealth, 255 Va.
594, 600, 499 S.E.2d 266, 270 (1998); Barr v. Town & Country
Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).
Additionally, the purpose of the attorney’s fees and
costs provision is different from the purpose of punitive
damages. Punitive damages are designed to punish offensive or
unlawful conduct and deter it in the future. Flippo v. CSC
Assocs., 262 Va. 48, 58, 547 S.E.2d 216, 222 (2001). The fee
shifting provisions of the VCPA are designed to encourage
private enforcement of the provisions of the statute.
Accordingly, we will reverse the judgment of the trial
court and remand with directions to enter judgment for Wilkins
in the amount of $138,183 plus an award of reasonable
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attorney’s fees and costs for successfully prosecuting this
appeal.
Reversed and remanded.
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