Punitive
damages against drunk driver upheld
By
David Ziemer
Wisconsin Law Journal
August
10, 2005
A
$225,000 punitive damage award against a drunk driver does not violate due process,
the Wisconsin Court of Appeals held on Aug. 2.
According
to the case, around 8 a.m. on Oct. 16, 1998, Levi Hogner began drinking beer at
his home. At 2:30 p.m., after drinking at least 12 beers, he drove to a nearby
tavern where he drank four to six more. Sometime after 4 p.m., he drove to another
tavern. However, as he made a left hand turn from a northbound lane, he drove
into the path of LeRoy Strenke, headed southbound, causing a collision.
A
test revealed Hogner's blood alcohol content was 0.269 percent, and he had four
previous drunk driving convictions.
Strenke
brought suit, and a jury awarded $2,000 in compensatory damages and $225,000 in
punitive damages, even though his attorney had only requested $25,000 in punitives.
Hogner moved for remittitur or a new trial, but Barron County Judge Frederick
A. Henderson denied the motions.
Hogner
appealed, and the court of appeals certified the case to the Wisconsin Supreme
Court. The court held that there was sufficient evidence to send the punitive
damages question to the jury, but was evenly divided on whether the damage award
violated Hogner's due process rights. Strenke v. Hogner, 2005 WI 25, 279 Wis.2d
52, 694 N.W.2d 296.
The
latter question was remanded to the court of appeals, which held that the punitive
damage award was constitutional, in a decision by Judge Thomas Cane.
After
reviewing the history of punitive damage awards and the due process clause, from
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996), and State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 412 (2003), to Trinity Evangelical Luth. Ch.
v. Tower Ins. Co., 2003 WI 46, 261 Wis.2d 333, 661 N.W.2d 789, the court concluded
the damage award met the standard established in those cases.
Court
Considers Five Factors
The
five factors to consider, in evaluating whether a punitive damage award is constitutional
are: (1) whether the harm caused was physical or economic; (2) whether the tortious
conduct evinced a reckless indifference to health or safety of others; (3) whether
the target was financially vulnerable; (4) whether the conduct was single and
isolated or involved repeated actions; and (5) whether the harm was the result
of intentional malice, trickery, deceit, or mere accident.
In
addition, evidence of recidivism can make conduct more reprehensible; and while
there is no strict mathematical formula, a ratio of punitive damages to compensatory
damages that is in double digits is suspect.
| What
the court held Case:
Strenke v. Hogner, No. 2003AP2527 Issue:
Does a punitive damage award of $225,000 against a drunk driver violate the due
process rights of the defendant, when compensatory damages were only $2,000? Holding:
No. The potential harm from driving intoxicated is much greater, and it is potential
harm that must be used when considering the constitutionality of an award. Counsel:
Karen J. Kingsley, St. Paul, Minn, for appellant; Lynn R. Laufenberg, Milwaukee;
Owen R. Williams, Amery, for respondent.
|
After
noting the strong state interest in deterring people from driving while intoxicated,
the court found, "The degree of reprehensibly is the most important factor
in any excessiveness inquiry and the conduct in this case qualifies as egregious.
Hogner … admits to four previous arrests for drunk driving… The drinking
pattern established at trial, beginning at 8 a.m. at home and then moving on to
taverns, would in addition provide grounds from which to infer that these five
occasions of drunk driving represented only a fraction of the times Hogner drank
and drove. Hogner's blood-alcohol level was more than three times the .08% level
that establishes presumptive intoxication, arguably indicating profound indifference
to the health and safety of others. He demonstrated even greater indifference
each time he got in his car in search of more alcohol. … evidence of this
sort establishes reprehensibility clearly, convincingly, and substantially."
Examining
the five factors, the court concluded, "Hogner's conduct caused physical
harm, demonstrated reckless indifference to the health and safety of others, and
was part of an admitted pattern of conduct. While it did not intentionally target
economically vulnerable individuals, given the current realities of insurance
and medical coverage, it certainly had a strong likelihood of affecting such individuals.
Four of the five factors used to measure reprehensibility are thus present in
this case. The only factor arguably not present, based on Hogner's probable speed
when the accident occurred, is 'deliberate malice.'"
Ratio
Review
Turning
to the ratio between the $225,000 award and the mere $2,000 in compensatory damages,
the court acknowledged that the ratio was not merely in double digits, but triple
digits.
Nevertheless,
the court concluded it was reasonable, because the potential damage that Hogner
could have caused was so much more than $2,000.
The
court wrote, "If we consider potential damages, however, the excessiveness
calculus changes. Hogner's conduct could have injured Strenke seriously or even
killed him. Absent what might arguably be called Hogner's 'good luck,' his conduct
thus might easily have resulted in consequential damages that would have put the
$225,000 award in the 1:1 or 2:1 range."
The
court further noted that Hogner was subject to fines of several thousand dollars,
as well as jail time for conduct, adding, "Those penalties reflect the legislature's
judgment about the level of deterrence and punishment necessary to prevent drunk
driving."
Turning
to remittitur, the court also held it was reasonable for the trial court to decline
to lower the damage award on that basis.
The court
stated the standard as follows: "When the trial court finds that a punitive
damage award is the result of passion or prejudice, it does not fix a reasonable
amount of damages, it orders a new trial. Redepenning v. Dore, 56 Wis. 2d 129,
133-34, 201 N.W.2d 580 (1972). If the court determines a verdict is excessive
or inadequate not because of prejudice or passion or as a result of error during
the trial, other than an error in the amount of damages, the court has the statutory
authority to determine the amount that, as a matter of law, is reasonable. See
Wis. Stat. sec. 805.15(6) (2001-02). The party to whom the option is offered may
elect to accept that judgment or to have a new trial on the issue of damages alone.
See id."
Hogner
argued that the difference between the $25,000 requested by plaintiff's counsel,
and the $225,000 awarded by the jury, is so great that the jury must have based
its verdict on passion or prejudice.
However,
the court concluded, "Hog-ner's argument that the trial court erred by not
remitting the award only restates his constitutional argument. Because we have
already rejected that argument, it cannot serve as a basis for claiming that the
trial court erred when it did not find that the jury's verdict was excessively
large as a matter of fact."
Accordingly,
the court affirmed the award.
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David
Ziemer can be reached by email.
