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Healthcare Centers of Texas12/12/2002
anticipated a jury might find a defendant acted with malice even though the harm to a plaintiff was caused by the criminal act of another. Because the plaintiff admitted her harm was caused by the criminal conduct of Jones, she is barred from recovering exemplary damages under section 41.005 despite the jury's finding that Healthcare acted with malice. The affirmative finding of malice against Healthcare does not supercede the effect of appellant's judicial admission that Mrs. Underwood's harm was caused when she was assaulted by Morris Jones. See Chilton Ins., 930 S.W. 2d at 884–886; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W. 3d 887, 905 (Tex. 2000).
Appellee requested and the court submitted jury question number nine , which asked the jury to determine whether Healthcare's actions constituted the criminal act of injury to an elderly or disabled person. See Tex. Pen. Code Ann. § 22.04 (Vernon Supp. 2002). We note that issue number nine was not submitted with correct definitions and instructions for corporate criminal responsibility, however, our interpretation of 41.005 renders this defect moot. We have concluded that the legislature did not provide an exception to exemption from punitive damages when a defendant commits a concurrent criminal act but is not responsible as a party. See Tex. Civ. Prac. & Rem. Code § 41.005 (b)(2) Vernon Supp. 2002.
Further, Section 41.005(b)(2) allows recovery of punitive damages if the defendant is criminally responsible as a party to the criminal act. By definition, if one can be responsible as a party, the act is a concurrent act. If we accept Rigby's construction of section 41.005, section (b)(2) would become a nullity. We cannot glean any different application of this statute under these facts because the physical and emotional injury to plaintiffs was caused by an assault committed by another party.
It is the duty of the court to administer the law as it is written, and not to make law; and however harsh a statute may seem to be, or whatever may seem to be its omission, courts cannot . . . make it apply to cases to which it does not apply, without assuming functions that pertain to the legislative department of the government." Turner v. Cross, 83 Tex. 218, 224, 18 S.W. 578, 579 (1892). We recognize this is a case of first impression with regard to interpretation of section 41.005. Finding no ambiguity in the statute, we hold section 41.005 bars plaintiff's recovery of punitive damages notwithstanding the affirmative answers to jury questions numbered six and nine. Healthcare's first issue is sustained.
Healthcare next contends the jury's finding of malice is not supported by sufficient evidence. In its second and third issues, Healthcare challenges the assessment and amount of punitive damages. The jury finding that Healthcare Centers, through its vice-principal, acted with malice could entitle the plaintiff to a recovery of punitive damages. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (holding that a corporation can be liable for punitive damages if it commits gross negligence or malice through the actions or inactions of a vice-principal). Because section 41.005 bars recovery of punitive damages despite the jury finding of malice, we need not address the sufficiency of the evidence to support the malice finding or the amount of punitive damages. See Cf. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994) (When confronted with a challenge to the factual sufficiency of evidence of an exemplary damages award, the court of appeals must detail the relevant evidence in support of or against the award).
Bystander Recovery
In its fourth issue, Healthcare first contends that
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