DWI and Punitive Damages by David F. Albright, Jr.
Maryland law unfortunately does not
permit recovery of punitive damages in a motor tort, even when the tortfeasor consumes excessive quantities of alcohol or mind-altering drugs. Komornik v. Sparks, 331 Md. 720 (1993). In advo- cating for a change of Maryland law, we must address not only the reasons why punitive damages make sense in the DWI context, but also the reasons which are advanced against punitive damages by the tort reform lobby. The most common reason advanced
by the tort reform lobby is that punitive damages are a windfall to the Plaintiff. However, the windfall argument is sim- ply not true. In many serious injury cases involving permanent injury or wrongful death, the Legislature’s cap on non-economic damages prevents the Plaintiff from obtaining true compensa- tory damages. Punitive damages, which are not subject to the cap, may help provide the Plaintiff with true recovery of otherwise capped compensatory damages. The windfall argument is also under-
mined by the fact that in most situations, punitive damages will be taxable as per- sonal income. Coupled with the fact that attorneys fees and expenses must be paid out of the punitive damage recovery, many Plaintiffs may receive one-third of the punitive damage recovery or less. The next argument of the tort reform
lobby is that punitive damages lead to “frivolous lawsuits.” When the tort reform lobby cries “frivolous lawsuits” it means, of course, any personal injury lawsuit, no matter how egregious the injury. However, in Maryland, punitive damages must be proven by a “clear and convincing” standard. MPJI 10:13. This standard of proof, which is much higher
Summer 2008
than the standard for compensatory damages, indicates that any award of punitive damages is not based on a mere whim of the jury or clever argument by counsel. The tort reformers also complain
about “those greedy trial lawyers,” as if we were the cause of the problem. At- torney advertising, which is a favorite target of tort reformers, does not cause drunk driving. A DWI is the result of a willful, conscious decision to engage in damaging behavior, regardless of the consequences to others.
Finally, the tort reformers voice con-
cern over “runaway” juries. There are two safeguards against “runaway” ver- dicts: the one day, one trial rule in many Maryland venues; and the power of the trial judge. The one day, one trial rule enables more people, from a wider cross section of the community, to serve on juries. The significance of the one day, one trial rule in deflating jury awards cannot be understated. In addition, the trial judge has the ability to award a new trial on punitive damages if the award is excessive.
Pre Settlement Funding • Law Firm Financial Products
John Friedson President
P.O. Box 1339
Rockville, Maryland 20849 (301) 984-0600 Fax: (301) 984-0719
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john@creativefinancingsolutions.com www.creativefinancingsolutions.com
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