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Punitive Damage Awards

Fairfax Injury Lawyer Brien Roche Addresses Punitive Damage Awards

Brien Roche

The Virginia Supreme Court has dealt many times with the issue of punitive damage awards.  The basis for a punitive damage award is a conscious disregard.  That requires something beyond ordinary negligence.  It also requires something beyond gross negligence.  A conscious disregard can be seen when a person while driving an automobile, chooses to look at their phone or to text.  That is a choice that the driver makes.  That choice may be a conscious disregard.  When coupled with driving at a high rate of speed, it may be a basis for a punitive damage award.

The question in one case was whether an award was too high.  The jury awarded different amounts of compensatory damages to two plaintiffs.  One of the plaintiffs was the driver of an auto.  The other plaintiff was a passenger.  The party being sued was a drunk driver with an extensive history of drunk driving. He also had been found guilty of eluding the police at the time of this crash. In addition he had asked his girlfriend to lie about his actions.

Proportion to Primary Award May Be The Key To Punitive Damages

The jury awarded one plaintiff $5,000 in compensatory damages and the other plaintiff $14,000 in compensatory damages.  The jury awarded $100,000 in punitive damages to each of these two plaintiffs.  The trial court felt that the award was too high to the plaintiff that had the smaller amount of compensatory damages.  Compensatory damages are those damages that are designed to make the plaintiff whole for the injury.  Punitive damages are designed to punish for wrongful conduct.

The trial court felt that because the compensatory damage awards were different that the punitive damage awards should be different. Furthermore they should bear some relation to the compensatory award.

The Ratio

The ratio of punitive damages to compensatory damages in one case was approximately 17:1 and in the other case the ratio was nearly 8:1.
The Virginia Supreme Court determined that the ratio does not need to be a single digit amount.  The Virginia Supreme Court further stated that a trial court may not compare verdicts under any circumstances.  The case law in that regard states that in deciding whether a compensatory award is too high, the court may not compare that award with what was awarded in another case.  The thinking is that each case is unique.  Each case needs to be looked at on its own facts.  Likewise in looking at a punitive award, there can be no comparison with other cases.

One of the judges on the Virginia Supreme Court felt that the awards were arbitrary and/or prejudicial because they did not treat the two plaintiffs the same. The majority of the Court felt otherwise.  The majority felt that the jury has discretion in terms of awarding different amounts. In this case the Court felt that different ratios between the compensatory award and the punitive award may have been justified simply because the overall compensatory awards did not truly reflect the damage to that plaintiff.

In any event a punitive damage award 17 times the compensatory award is not excessive according to this case. Call, or contact us for a free consult.

Tips on Proving Punitives

In proving punitives there are many things to be aware of:

Focus on the Duty

The duties owed by the defendant you are suing may be quite broad. There may be a duty imposed on everyone within the outfit to report an injury or events that may lead to an injury. There may be a duty to structure the outfit in such a way so as to avoid these types of injury. The size of the company may be such that its duty is heightened because it impacts thousands of people. The elements for punitives are either intentional conduct or willful and wanton conduct. The latter calls for an act or constructive consciousness that injury will result from the act or omission. Wilby v. Gostel 365 Va 437,445 (2003), Alfonso v Robinson 257 Va. 540,545

Is the Bad Conduct Continuing?

If the defendant is still denying fault or causation that should be pointed out as a factor.

Punitives Deter

Punitives punish and also deter. To know what amount to award in order to deter the jury must know the extent of bad conduct and what effect it could have. The risk may be small but the breach of the standard of care persists. This latter fact may be proof of deliberate indifference.

The Award Has To Make Sense

Not only must the award make sense in regard to the other damages but it should make sense in regard to the outfit itself. The jury has a right to know how much was spent to market the product during the time in question. Did the party being sued know the dangers of the product while they were pushing the product? During this same time how much did they spend on quality control? That financial motive may make the claim.

Know The Wealth

The wealth of the party you are suing may not just be net worth. It may also be gross receipts, cash flow, accounts receivable or value of the parent company. All of those should be looked at.

Taxes

You need to be aware that punitive damages are taxable.  As such to the extent that the award can be lumped into the general damages there may be some logic in trying to do that. The general award of course has to be for what is called “personal physical injury”. Otherwise that too may be taxable.

Punitive Damage Awards in Federal Court

In federal courts the ratio that is typically followed is a single digit ratio.  State court however is not bound by that federal case law.  One issue however in awarding punitive damages is what is referred to as due process i.e., under the Constitution has there been an improper taking of property without due process that may pose a constitutional problem.  The improper taking of property would be the excessive punitive damage award.

Punitive damages may be awarded where only nominal damages are granted at the compensatory level.  In the May 8, 2011 decision in Feld v. Feld, the U.S. District Court in the District of Columbia adopted the view from the Restatement Second of Torts Section 163, that an award of nominal damages is enough to support further award of punitive damages when the tort is committed for an outrageous purpose even though no significant harm resulted.

For information on the basis for punitive damages as reflected in Virginia case law see the highlighted article.   Call, or contact us for a free consult.

For more information on punitive damage awards and personal injury see the other pages on this site and see the pages on Wikipedia.

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Punitive Damage Awards

Fairfax Injury Lawyer Brien Roche Addresses Punitive Damage Awards

Brien Roche

The Virginia Supreme Court has dealt many times with the issue of punitive damage awards.  The basis for a punitive damage award is a conscious disregard.  That requires something beyond ordinary negligence.  It also requires something beyond gross negligence.  A conscious disregard can be seen when a person while driving an automobile, chooses to look at their phone or to text.  That is a choice that the driver makes.  That choice may be a conscious disregard.  When coupled with driving at a high rate of speed, it may be a basis for a punitive damage award.

The question in one case was whether an award was too high.  The jury awarded different amounts of compensatory damages to two plaintiffs.  One of the plaintiffs was the driver of an auto.  The other plaintiff was a passenger.  The party being sued was a drunk driver with an extensive history of drunk driving. He also had been found guilty of eluding the police at the time of this crash. In addition he had asked his girlfriend to lie about his actions.

Proportion to Primary Award May Be The Key To Punitive Damages

The jury awarded one plaintiff $5,000 in compensatory damages and the other plaintiff $14,000 in compensatory damages.  The jury awarded $100,000 in punitive damages to each of these two plaintiffs.  The trial court felt that the award was too high to the plaintiff that had the smaller amount of compensatory damages.  Compensatory damages are those damages that are designed to make the plaintiff whole for the injury.  Punitive damages are designed to punish for wrongful conduct.

The trial court felt that because the compensatory damage awards were different that the punitive damage awards should be different. Furthermore they should bear some relation to the compensatory award.

The Ratio

The ratio of punitive damages to compensatory damages in one case was approximately 17:1 and in the other case the ratio was nearly 8:1.
The Virginia Supreme Court determined that the ratio does not need to be a single digit amount.  The Virginia Supreme Court further stated that a trial court may not compare verdicts under any circumstances.  The case law in that regard states that in deciding whether a compensatory award is too high, the court may not compare that award with what was awarded in another case.  The thinking is that each case is unique.  Each case needs to be looked at on its own facts.  Likewise in looking at a punitive award, there can be no comparison with other cases.

One of the judges on the Virginia Supreme Court felt that the awards were arbitrary and/or prejudicial because they did not treat the two plaintiffs the same. The majority of the Court felt otherwise.  The majority felt that the jury has discretion in terms of awarding different amounts. In this case the Court felt that different ratios between the compensatory award and the punitive award may have been justified simply because the overall compensatory awards did not truly reflect the damage to that plaintiff.

In any event a punitive damage award 17 times the compensatory award is not excessive according to this case. Call, or contact us for a free consult.

Tips on Proving Punitives

In proving punitives there are many things to be aware of:

Focus on the Duty

The duties owed by the defendant you are suing may be quite broad. There may be a duty imposed on everyone within the outfit to report an injury or events that may lead to an injury. There may be a duty to structure the outfit in such a way so as to avoid these types of injury. The size of the company may be such that its duty is heightened because it impacts thousands of people. The elements for punitives are either intentional conduct or willful and wanton conduct. The latter calls for an act or constructive consciousness that injury will result from the act or omission. Wilby v. Gostel 365 Va 437,445 (2003), Alfonso v Robinson 257 Va. 540,545

Is the Bad Conduct Continuing?

If the defendant is still denying fault or causation that should be pointed out as a factor.

Punitives Deter

Punitives punish and also deter. To know what amount to award in order to deter the jury must know the extent of bad conduct and what effect it could have. The risk may be small but the breach of the standard of care persists. This latter fact may be proof of deliberate indifference.

The Award Has To Make Sense

Not only must the award make sense in regard to the other damages but it should make sense in regard to the outfit itself. The jury has a right to know how much was spent to market the product during the time in question. Did the party being sued know the dangers of the product while they were pushing the product? During this same time how much did they spend on quality control? That financial motive may make the claim.

Know The Wealth

The wealth of the party you are suing may not just be net worth. It may also be gross receipts, cash flow, accounts receivable or value of the parent company. All of those should be looked at.

Taxes

You need to be aware that punitive damages are taxable.  As such to the extent that the award can be lumped into the general damages there may be some logic in trying to do that. The general award of course has to be for what is called “personal physical injury”. Otherwise that too may be taxable.

Punitive Damage Awards in Federal Court

In federal courts the ratio that is typically followed is a single digit ratio.  State court however is not bound by that federal case law.  One issue however in awarding punitive damages is what is referred to as due process i.e., under the Constitution has there been an improper taking of property without due process that may pose a constitutional problem.  The improper taking of property would be the excessive punitive damage award.

Punitive damages may be awarded where only nominal damages are granted at the compensatory level.  In the May 8, 2011 decision in Feld v. Feld, the U.S. District Court in the District of Columbia adopted the view from the Restatement Second of Torts Section 163, that an award of nominal damages is enough to support further award of punitive damages when the tort is committed for an outrageous purpose even though no significant harm resulted.

For information on the basis for punitive damages as reflected in Virginia case law see the highlighted article.   Call, or contact us for a free consult.

For more information on punitive damage awards and personal injury see the other pages on this site and see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation