Punitive
Damages Case Analysis
March
23, 2005
Although
the majority states that its standard is higher than the previous common law standard,
and that circuit courts must act as "gatekeepers" — only sending
punitive damage questions to juries where this heightened standard is met —
the standard will prove difficult to apply.
As
the majority noted, the words "intentional" and "disregard"
do not easily combine.
The
language, "intentional disregard of rights," will be present in most
tort actions involving mere negligence. Any driver who sets his cruise control
at 65 in a 55 mph zone is intentionally disregarding the rights of other drivers,
although inadvertently driving over the speed limit through mere inattention presumably
would not qualify.
Because
"intentional" and "disregard" don't combine in any sensible
way, every punitive damage issue must begin with the previous, more easily applied,
common law standard — "reckless disregard." Setting the cruise
control at 65 in a 55 would not meet the old standard of recklessness (assuming
good road conditions), and therefore, cannot meet the new (higher) standard, even
though it plainly fits within the statutory definition of intentional disregard
of rights.
In
the drunk driving context, the majority admonishes that not every accident involving
an intoxicated driver will be appropriate for punitive damages, but the court
offers no explicit guidance to apply; the court just lists a few relevant factors.
Some
of the factors the court cited as justifying punitive damages will be present
in every such case — "nobody was holding him down and pouring these
[drinks] down his throat involuntarily" and "there is no evidence in
the record that anybody made Hogner get behind the wheel of his car that night."
The
court also wrote, "Hogner's act of drinking and driving disregarded Strenke's
right to safety in using the highway with other motorists in sober command of
their vehicles." Both of these statements will be true in all cases.
Another
fact the court cites as important is somewhat misleading — the defendant
consumed 16 to 18 beers. In cases not involving such an enormous quantity, a defendant
could argue that the standard has not been met. However, in a footnote, the court
noted that the defendant weighed 400 pounds. Most defendants will be just as intoxicated,
and liable for punitive damages, despite having substantially less than 16 to
18 drinks. Thus, the large quantity consumed by Hogner is not a sound basis for
distinguishing this case from future ones.
A
more relevant benchmark is the blood alcohol content — .269 percent. Presumably,
while punitive damages are inappropriate if the BAC is only .08 percent (otherwise
the court's statement that not all drunk driving accidents are cause for punitive
damages would be meaningless), BACs of substantially less than .269 percent will
still qualify.
Another
fact is arguably not even relevant — the number of prior convictions —
and the court did not explain why it was. The fact that the defendant had four
prior drunk driving convictions, rather than none, but continued to drink and
drive, is not a fact that increases the likelihood of harm to other drivers or
increases the disregard of others' rights. Such a driver certainly faces increased
risk to himself in the form of penal consequences; but both the risk to other
drivers, and the driver's knowledge of that risk, are exactly the same.
The
defendant in this case had never been involved in a drunk driving accident before.
Had he been involved in previous drunk driving accidents, on the other hand, that
would be relevant to the defendant's understanding of how his conduct affects
others' rights, and be an appropriate consideration.
Particularly
noteworthy is the absence in the majority's discussion of the circumstances giving
rise to the accident — the defendant's making a left turn in front of oncoming
traffic. Wilcox's concurrence discussed this at length, but the majority did not
mention it at all.
The
omission of this factor in the majority opinion could be interpreted in two ways:
(1) what is really important is driving drunk, and driving poorly is just a natural
consequence of that; or (2) sober people make left hand turns in front of oncoming
traffic every day, too, thinking incorrectly that it can be done safely, and it
is not a relevant factor in this particular case in deciding whether to allow
punitive damages.
The
latter is the better interpretation, for some acts of a driver actually are reckless,
and should support punitive damages, whether the driver is drunk or sober.
Thus, the
concurrence's emphasis on this factor in this case is puzzling. Especially because,
if the standard advocated in Wilcox's concurrence were the majority opinion, punitive
damages could never be awarded in drunk driving cases.
Consider
the following passage from Wilcox's dissent in the Miller Park case: "none
of Grotlisch's testimony … establishes that there was a substantial certainty
that bodily injury would occur. … the fact that Grotlisch was in the zone
of danger indicates that he could not have believed that there was a substantial
certainty that injury would occur."
Applying
this statement to the drunk driving context, the drunk driver is invariably in
the "zone of danger" himself; many drunk driving accidents injure or
kill no one but the drunk driver. If this were proof that the defendant did not
believe there was a substantial certainty of injury, the drunk driver would always
evade liability for punitive damages.
The
passage from Wilcox' dissent, however, does illustrate what may be the most significant
result of the decision — that insurers cannot avoid the duty to defend, and
liability for punitive damages, under intentional acts exclusions.
The
quote just above was lifted by Wilcox from the plaintiffs' arguments on a coverage
issue in the circuit court. If Wilcox's standard were the law, an award of punitive
damages would necessarily mean that the intentional acts exclusion bars coverage.
Under the majority standard, however, punitive damages can be awarded, even though
a standard intentional acts exclusion would not apply.
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David Ziemer
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David
Ziemer can be reached by email.
