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Punitive damages against drunk driver upheld

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.

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Case Analysis

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.

Click here for Case Analysis.

David Ziemer can be reached by email.

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