BUDGET CARE SALES v. STOTT

This matter comes before the Court on the Petition To Transfer filed by Appellee, Ralph Stott.

The Court notes that the Court of Appeals has applied an incorrect standard of review for the award of punitive damage by considering whether the evidence excluded every reasonable hypothesis of innocent conduct and by indicating that a defendant is cloaked with the presumption that tortious conduct was a noniniquitous human failing. Budget Car Sales v. Stott, 656 N.E.2d 261, 265 266 (Ind.Ct.App. 1995). As explained in Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137-8 (Ind. 1988), these two concepts from Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019 (Ind. 1986) have been superseded. Accord Erie Ins. Co. v. Hickman, 605 N.E.2d 161, 162 (Ind. 1992); see also Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 523 (Ind. 1993).

The correct standard of review for punitive damages is whether, considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. Bud Wolf 519 N.E.2d at 137.

However, having applied the correct standard of review, the Court reaches the same outcome as did the Court of Appeals herein. Accordingly, the Petition To Transfer is DENIED.

The Court directs West Publishing Company to publish this order.

The Clerk is directed to send copies of this order to the Hon. John T. Sharpnack, Chief Judge of the Indiana Court of Appeals; Steve Lancaster, Administrator for the Indiana Court of Appeals; Mrs. Janet Roberts Blue, Commissioner for the Indiana Court of Appeals; and to counsel of record.

All Justices concur, except DeBRULER, J., who is not participating due to absence from conference discussion.