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.
– David Ziemer
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David Ziemer can be reached by email.