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Driskell v. Summit Contracting Group, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

March 28, 2019

JUSTIN DRISKELL, Plaintiff,
v.
SUMMIT CONTRACTING GROUP, INC., Defendant.

          ORDER AND AMENDED JUDGMENT

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on Plaintiff's Motion to Elect Remedies (Doc. No. 86), Plaintiff's Motion for Attorney's Fees. (Doc. No. 56), and the remaining portion of Plaintiff's Motion for Amended Judgment (Doc. No. 64) related to the trebling of damages. Defendant opposes all motions. For the reasons that follow, Plaintiff's Motion to Elect Remedies is GRANTED, Plaintiff's Motion for Amended Judgment (Doc. No. 64) is GRANTED IN PART as to treble damages, and the Motion for Attorney's Fees is GRANTED IN PART and DENIED IN PART. Also before the Court is Defendant's Second Unopposed Motion to Supplement Record on Appeal (Doc. No. 105). In light of the Fourth Circuit Court of Appeal's dismissal of the original appeal (Doc. No. 106), this motion is DENIED AS MOOT.

         I. BACKGROUND

         Following trial, a jury entered a verdict in favor of Plaintiff finding Defendant terminated Plaintiff's employment and in doing so, violated North Carolina's Retaliatory Employment Discrimination Act (“REDA”) and Wrongful Discharge in Violation of Public Policy (“WDPP”). (Doc. No. 52, pp. 1-2). The jury found Plaintiff was entitled to $65, 000 for the REDA claim and the wrongful discharge in violation of public policy claim. Id. The jury also returned a verdict in favor of Plaintiff for his battery, negligent supervision, and retention claims and awarded him $4, 000 for each count. Id. at 2-3. Following post-trial motions, this Court reversed the jury verdict for Plaintiff on his tort claims and affirmed the verdict with respect to Plaintiff's REDA and WDPP termination claims. (Doc. No. 85). The Court granted Defendant's Motion to Order Plaintiff to Elect Remedies (id.), and Plaintiff subsequently filed the instant motion. Plaintiff has also requested attorney's fees under REDA; however, because that motion could be impacted on Plaintiff's election of remedies, the Court held ruling until now. In short, Plaintiff seeks an award of attorneys' fees under REDA in the total amount of $633, 099.95, based on a lodestar fee and enhancements. The Court addresses these motions in turn.

         II. ANALYSIS

         A. Motion to Elect Remedies and Motion to Amend Judgment

          Plaintiff's motion elects to recover $250, 000 of the jury's $681, 000 punitive damages award on his common law WDPP claim, and, under the REDA, Plaintiff elects to recover his untrebled compensatory damages in the amount of $65, 000 and statutory attorneys' fees. Plaintiff argues he is required to elect his remedies-not his cause of action. Plaintiff argues United Labs. v. Kuykendall, 335 N.C. 183, 194 (1993), suggests he can recover common law punitive damages and statutory attorneys' fees here. Plaintiff contends the sums do not amount to double recovery and they have entirely distinct policy motivations. Defendant disagrees, arguing Plaintiff's “mix and match” approach “impermissibly cherry-picks the verdict and violates well-founded principles that Plaintiff concedes prohibit double recovery for the same injury.” (Doc. No. 92, p. 1). In the alternative, Plaintiff elects to recover compensatory damages ($65, 000), treble damages ($130, 000), and his attorneys' fees under REDA in the event that the Court does not allow his first choice.

         Turning first to Plaintiff's request to elect both punitive damages under the WDPP claim, as well as untrebled compensatory damages and attorneys' fees on the REDA claim, the Court disagrees with Plaintiff's interpretation of and reliance on United Labs. In that case, the North Carolina Supreme Court considered “whether United, having succeeded at trial on both its common law tortious interference claim and its unfair practices claim, may recover both punitive damages in its common law claim and untrebled compensatory damages and attorneys fees in its unfair practices claim.” United Labs., 437 S.E.2d at 378. The court explained a party may not recover punitive damages for tortious conduct and treble damages for a violation of Chapter 75 based on that same conduct:

Where the same source of conduct gives rise to a traditionally recognized cause of action, as, for example, an action for breach of contract, and as well gives rise to a cause of action for violation of G.S. 75-1.1, damages may be recovered either for the breach of contract, or for violation of G.S. 75-1.1, but not for both.
Marshall, 47 N.C.App. at 542, 268 S.E.2d at 103. We held in Ellis that plaintiffs, who sued for libel and for an unfair practice under Chapter 75 based on that libel, had to elect between recovering compensatory and punitive damages in the libel claim and treble damages in the unfair practice claim. Ellis, 326 N.C. at 227-28, 388 S.E.2d at 132.
Ellis and Marshall are distinguishable. [the defendant's] conduct which gives rise to an award of attorneys fees is not the same conduct that gives rise to an award of punitive damages. To recover punitive damages at common law a plaintiff must show that the defendant acted in a willful or oppressive manner. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342. To recover attorneys fees for unfair practices, however, the plaintiff must also show that “there was an unwarranted refusal by [the defendant] to fully resolve the matter which constitutes the basis of ... the suit.” N.C. G.S. § 75-16.1(1). Since recovery of attorneys fees requires proof different from that which gives rise to punitive damages, the claims do not arise from “the same course of conduct.” Marshall, 47 N.C.App. at 542, 268 S.E.2d at 103.

United Labs., 437 S.E.2d at 379-80.

         In permitting the election, the North Carolina Supreme Court held, “[S]ince the conduct required for an award of attorneys fees is different from the conduct required for an award of punitive damages and since the two recoveries serve different interests, permitting the plaintiff to recover both will not result in ‘double redress for a single wrong . . . .” Id. at 381 (quoting Smith v. Oil Corp., 79 S.E.2d 880, 885 ( N.C. 1954)). The court therefore stated the prevailing party was not required to elect between the two and could recover punitive damages in its tort claim and attorneys fees in its unfair practice claim. United Labs., 437 S.E.2d at 381.

         United Labs is distinguishable from the case at bar. During trial, Plaintiff relied on the same conduct to support his claims under ...


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