Barnes, J.
Case Summary
The Estate of Richard Mayer (“the Estate”) and the law firm of Spangler, Jennings & Dougherty, P.C. (“Spangler Jennings”) appeal the trial court’s denial of their motion for summary judgment against Lax, Inc., and David Lasco. We affirm in part, reverse in part, and remand.
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In light of the great weight of authority, and in effecting the policy favoring survival of actions when possible, we hold that termination of a cause of action against an alleged agent-tortfeasor because of death does not require termination of a cause of action against the agent’s principal. Such termination does not reflect upon the merits of the case. We see no indication in the Survival Statute that our legislature intended to permit employers or other principals to avoid liability for their employee or agent’s misconduct simply because of the employee or agent’s death. In the absence of legislative authority to the contrary, the immunity from liability for certain torts afforded by the Survival Statute does not transmit to a surviving principal. Likewise, it is the tortious acts of the tortfeasor that are imputed to another under respondeat superior—not the tortfeasor’s liability or lack thereof. Thus, Lax and Lasco may continue to pursue their malicious prosecution action against Spangler Jennings under a respondeat superior theory.
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We conclude that consistent with the purposes of punitive damages in Indiana, including deterrence of the person or entity against which they are imposed, such damages should not be imposed against a corporation strictly on the basis of respondeat superior for an employee’s misconduct. In order to award punitive damages against the employer, there must be evidence of positive or collusive action by the employer as indicated by the Restatement sections quoted above, such as prior authorization of the doing and the manner of the agent’s act; that the agent was unfit and the employer was reckless in employing and/or retaining the agent; that the agent was employed in a managerial capacity and was acting within the scope of his or her employment when the tort was committed; or that the employer ratified or approved the agent’s action after the fact. These situations are consistent with Indiana law that an award of punitive damages against an individual ordinarily requires a finding of willful and wanton conduct. Davidson v. Bailey, 826 N.E.2d 80, 89 (Ind. Ct. App. 2005).
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NAJAM, J., and BAILEY, J., concur.