dissenting. The majority is wrong when it states this case does not involve the retroactive application of a statute. It does.
At the time the property damage occurred in this case, the defendants were liable only for singular damages. The majority’s application of Act 70, which allows the imposition of double damages, retroactively enlarges that liability. Statutes which impose, remove or change a monetary limitation on recovery should be applied prospectively only. Thomas v. Cumberland Operating Co., 569 P.2d 974 (Okla. 1977). In that case, the administrator’s decedent was killed in an accident. At the time of the accident, certain types of damages were not recoverable in wrongful death cases, but by the time suit was filed, a law had been passed which allowed recovery of additional damages. The court held that the statute in effect at the time of the accident governed the limitations on recovery:
A statute passed subsequent to the injury increasing the amount recoverable in a wrongful death action creates a new element of damages as distinguished from a new remedy to enforce an existing right. Statutory increases in damage limitations are changes in substantive rights and not merely remedial changes. Therefore these increases are not applicable retroactively to injuries sustained prior to the effective date of the statute permitting increased recovery.
The statute in this case changed a monetary limitation on recovery. It allowed recovery of double damages in a situation where, before its passage, recovery was limited to singular damages. Therefore the statute should not be retroactively applied to property damage which occurred before the effective date of the statute. See also Kleibrink v. Missouri-Kansas- Texas Railroad Co., Inc., 224 Kan. 437, 581 P.2d 372 (1918); MFA Ins. Co. v. Hankins, 610 P.2d 785 (Okla. 1980).
The Small Property Damage Claims Act has been characterized as neither purely remedial or substantive, but penal. Rouse v. Weston, 243 Ark. 396, 420 S.W.2d 83 (1967). In construing penal statutes, nothing will be taken as intended that is not clearly expressed, and construction is strictly in favor of those upon whom the penalty may be imposed. Harber v. Shows, 262 Ark. 161, 553 S.W.2d 282 (1977); Missouri-Pacific Railroad Co. v. Lester, 219 Ark. 413, 242 S.W.2d 714 (1951). With these rules of construction in mind, I fail to see how the majority can apply the statute to the defendants in this case.
A California court, in considering a statute which imposed double damages for trespassing and cutting timber, explained the reasons for its reluctance to retroactively impose double damages:
We have concluded that the new section is not entirely procedural, nor is it remedial, but that it creates new obligations and exacts new penalties because of past transactions, and hence those provisions relating to double damages must be treated as penal and punitive.
Laws which create new obligations, or impose new duties, or exact new penalties because of past transactions, have been universally reprobated by civil and common law writers, and it is to be presumed that no statute is intended to have such effect, unless the contrary clearly appears.
Helm v. Bollman, 176 Cal.App.2d 838, 1 Cal.Rptr.723 (1959).
In United States v. Mashburn, 85 F. Supp. 968 (W.D. Ark. 1949), it was held that a statute which imposed treble damages against a landlord for overcharging rent should not be retroactively applied. The court declared that the general rule of prospective application is especially proper “when such retroactive operation would create a new liability or affect an existing liability to the detriment of the defendant.”
The statute in this case imposes a penal liability and creates a new obligation. The liability of the defendants, which existed prior to the effective date of the statute, was limited to singular damages. The statute should not now be retroactively applied to double their liability.
The majority claims that the event which triggered application of the statute was not the accident but the denial of liability and filing suit. In other words, though the limit of liability was singular damages at the time the accident occurred, the limit doubled upon filing of suit by the plaintiffs. This means that, upon filing suit, a new liability was imposed which did not exist at the time of the accident. That is retroactive application of the statute, pure and simple. It was, after all, the occurrence of the accident which gave rise to any liability in the first place.
The law should only be retroactively applied if the legislature expressed that intention. There is no evidence that the legislature intended the statute to be applied to property damage claims arising before its passage. The presumption is that legislation is to operate prospectively, not retroactively. Black v. Special School Dist. No. 2, 116 Ark. 472, 173 S.W. 846 (1915). Legislation will not be construed as being retroactive if it may reasonably be construed otherwise, and any doubt is resolved against retroactive application. Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987); Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937). Retroactive application of laws is generally regarded as unfair. 2 Singer Sutherland Statutory Construction, § 41.01 (4th ed. 1986). Even remedial legislation, which is sometimes applied retroactively, may not be so applied unless the legislature’s intent is so clear, strong and imperative as to have no other meaning. Luter, supra.
The last sentence of the act, which reads that liability attaches when liability is denied and suit is filed, does not clearly show an intention of retroactive application. In fact, that language has nothing to do with retroactive application. It means that, once liability is denied and suit is filed, it is too late for the defendant to pay the claim without suffering double damages and attorney fees. Similar efforts to escape penal liability have been engaged in by insurance companies that attempt to confess judgment after the insured has been required to file suit. See Equitable Life Assurance Society v. Gordy, 228 Ark. 643, 309 S.W.2d 330 (1958); Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S.W.2d 55 (1935). We held that once suit is filed, the attorney fees and penalty attach. No doubt the language in this act is intended to prevent these attempts to avoid penal liability.
I would not apply this statute because it retroactively enlarges the defendants’ liability, and there is no evidence that the legislature intended such an application. I would affirm.