concurring.
Although I concur in the majority opinion, I do not agree with the statement in footnote 1 on page 830 of the slip opinion that Orkin Exterminating Co., Inc. v. Traina (1986), Ind. 486 N.E.2d 1019 and Travelers Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349 may require a greater burden of proof at trial. Those cases dealt with claims for punitive damages and held the proof must be clear and convincing. Here we are concerned with a treble damage claim pursuant to statute. If the statutory prerequisites are established, treble damages and attorney fees are appropriate under Indiana Code section 34-4-30-1. Proof of the prerequisite need be only by a preponderance of the evidence. Campins v. Capels (1984), Ind.App., 461 *832N.E.2d 712, trans. denied; James v. Brink & Erb, Inc. (1983), Ind.App., 452 N.E.2d 414. I do not believe these cases are overruled by Orkin and Armstrong, and I am unwilling to extend the clear and convincing standard required on punitive damage cases by Orkin and Armstrong to the statutory entitlement to treble damages under Ind.Code sec. 34-4-30-1.
I also acknowledge that there is no majority opinion in Williams v. Crist (1985), Ind., 484 N.E.2d 576. However, I wholeheartedly agree that driving while intoxicated is willful and wanton misconduct per se. Roberts v. Chaney (1984), Ind.App., 465 N.E.2d 1154 (dissenting opinion of Ratliff, J.), and concur in the majority opinion here on that point.
Except for my disagreement with footnote 1, I concur in the majority opinion.