In other words, the choice-of-law for an insurance policy issued in the US must have some relationship to the parties to the contract or to the underlying case involving punitive damages. for the conduct of a specific employee or agent, use CACI No. If the defendant was motivated by financial gain, the cap increases to $2m or four times the compensatory damages. Nevada The cap is $300k, if the compensatory damages are less than $100k. Most important, depending on which law applies to the policy, a court may choose not to enforce the provision regarding insurance for punitive damages because of the public policy considerations delineated above. All Rights Reserved. Bould, 437 So. 6 VA. CODE ANN. Wisconsin The cap is $200k or two times the compensatory damages, whichever is greater. As the name would suggest, punitive damages are used in civil litigation to punish defendant tortfeasors. Nevertheless, in the context of US civil litigation, the law on punitive damages, and the availability of insurance coverage for the same, continues to evolve. Several states that allow punitive damages often place caps on the amount that can be awarded. For a company like Markel, where all claims adjusters report into the same claims division, underwriters and clients can be assured that the adjusters will work collaboratively to resolve these types of claims on behalf of our insureds, whether through settlement or trial. These policies are suitable for middle-market and large commercial insureds procuring primary and excess insurance from US insurers. An appellate court upheld the award, stating that the 2.8-to-1 ratio was not excessive and constitutionally permissible. WebAt Pillsbury & Coleman, LLP, in San Francisco, California, our attorneys have won landmark insurance law cases that include millions of dollars in punitive damages. One common misconception that deserves demystification is the frequency of punitive damage awards in the US. MFV/MFJ endorsements contain a choice of law provision through which the insured may select the law of the jurisdiction where (1) punitive damages were awarded, (2) the occurrence took place, (3) the insured is incorporated or has its principal place of business or (4) the policy was issued. For example, in a California employment case, a warehouse worker sued for lost earnings and mental suffering due to disability bias.14 The jury awarded him $70,000 in compensatory damages and $550,000 in punitive damages. For example, they can consider the defendants wealth. 3945 925 Copyright Judicial Council of California A few cases have held that in such instances the plaintiffs' fee award falls within the policy's supplementary payments provision, making them payable in addition to the limits of liability. New Jersey The cap is $350k or five times the compensatory damages, whichever is greater. Rather, we have observed from our own recent experience that juries now take into account punitive activity when determining economic and non-economic compensatory awards like pain and suffering. Often, defendants in DUI cases and employers in employers liability cases see higher rates of punitive damage awards than most other types of defendants in civil cases. Like the name suggests, puni-wrap policies wrap around traditional CGL policies to provide insurance coverage for punitive damages in cases where it is against public policy for the CGL policy to cover those damages. In that case, a toddler accidently stabbed her mother in the hand with a used syringe she found lying in the parking lot. Essentially, the insurer must have deliberately tried to either harm or defraud the policyholder. But case law may not support this argument. Instead, it is better to ensure that a casualty placement explicitly provides punitive damage coverage. 12 Cote v. Philip Morris U.S., Inc., 985 F.3d 840 (11th Cir. A puni-wrap policy is typically issued by an alien Bermudian insurer affiliate of the domestic insurer that issued the CGL policy. Many state courts routinely reduce punitive damage awards to a 9-to-1 ratio or lower, but others have affirmed higher ratios, depending on the facts of the case. The insured will not have coverage for any claims involving punitive damages, despite believing that it had purchased such coverage. It is important to note that the options listed out in an MFN clause are options that could otherwise be accepted as governing laws in standard judicial choice-of-law analyses. Statutes that provide for damages multipliers will also draw insurer objections that any multiplied portion is penal and not covered. The wrap policy generally follows the terms and conditions of the domestic policy. If they breach this requirement and act in bad faith against the owner of the insurance policy, they may be found liable for the tort of breaching their covenant of good faith and fair dealing, opening a potential route to the imposition of punitive damages. Alabama The cap is $500k or three times the compensatory damages, whichever is greater. For example, Georgia9 has a punitive damages cap of $250,000, but this cap does not apply to cases involving product liability. Sys. This is why, for example, claims brought under Business and Professions Code 17200, California's Unfair Business Practices Act, are not insurable the only remedy is restitution. Few personal injury cases that go to trial result in punitive damage awards Both defense and plaintiff's counsel need to be savvy about how claims are characterized in order to maximize available insurance coverage. He can be reached at [emailprotected]. On appeal, the court reduced the compensatory damages to $160,000 (to take into account contributory negligence) and the punitive damages to $480,000, a 3-to-1 ratio. As its name indicates, punitive damages are awarded to punish egregious or serious misconduct on the part of the defendant. Payments for punitive damage awards are often made by the offshore carrier to the insureds Bermudian-based broker, and the insured exercises its own discretion regarding repatriation of the punitive wrap claim payments. In states Welcome to EO Radio Show Your Nonprofit Legal Resource . Get Your Free Consultation From a Lawyer Near You. Colloquially called compunitive awards, massive compensatory damage awards can rival traditional punitive damage awards in their value. But California courts have generally rejected this argument, noting that lost profits and diminished good will are simply another way of measuring damages "because of" the property damage at issue. While there is no standard cap on punitive damages, each state has its own limitations on the amount of punitive damages that can be awarded. The following presents an overview of the damage caps in place at the time of this writing. While it is true that deep-pocket defendants may be assessed large awards if their conduct merits punitive damage awards, not all awards against large corporate defendants include punitive damages and, equally, juries often award punitive damages against smaller defendants in response to perceived egregious behavior. Other states have ruled against the insurability of punitive damages as a matter of public policy, arguing that insurability thwarts the rationale of punishing the defendant. Punitive damages are recoverable for a breach of fiduciary duty where the plaintiff is able to successfully allege that the defendants conduct constituted constructive fraud, not merely negligence. Even if the causes of action alleged do not appear covered on their face, are facts alleged that could give rise to a covered claim? The result is that even if the policy provides affirmative coverage for punitive damages, an insured cannot be certain in advance that an actual punitive damages award will be covered by that policy at the end of the day. For example, if the controlling policy has a $10 million per occurrence limit, the puni-wrap policy will also have a $10 million per occurrence limit. For example, a given case may have the following facts in relation to the questions posed above: In this scenario, a court determining whether a punitive damages award is covered by a policy containing a MFN clause would apply Alabama law, since that is the only law out of the four options in the MFN provision that allows for insurance coverage of punitive damages. Punitive damage standards are determined by each states legislature and are subject to change. In other states, both compensatory and punitive damages are awarded in the same verdict at the end of a single trial. As such, if a domestically issued policy excludes a particular risk, then the punitive damage policy will not provide punitive damage coverage for the excluded risk. Please try again later. All rights reserved. As such, an these endorsements should serve as a fallback for more preferable affirmative punitive damage coverage on the policy form, or a wrap policy. Regarding the small percentage of cases that actually do go to trial, many of these cases do not result in verdicts containing punitive damages. Also, if the award is reduced to an amount so small that it will not punish or deter the defendant, then it may lose its value.15. They are intended to punish the 975 P.2d 652 (Cal. Dennis M. Cusack is a partner at Farella Braun & Martel in San Francisco, where he represents policyholders in coverage disputes arising out of individual and class actions for product defects, securities, patent infringement, antitrust and unfair competition, personal injuries, investment and employee benefits fraud, environmental cleanups, construction defects, wrongful termination and discrimination, and a variety of commercial torts. Some jurisdictions require affirmative coverage for punitive damages, rather than ambiguity or silence. Indeed, many policies expressly agree to cover punitive damages unless the law applicable to the claim makes them uninsurable. Despite public perception, punitive damages awards arent a frequent outcome of civil litigation in the U.S. If the product injures someone, and that person sues, the manufacturer might be found negligent, but in that circumstances, there was no recklessness or intent to harm. It the punitive damage award is not large, objectively speaking, then the court may uphold, even though the ratio to the compensatory award is larger than generally accepted ratios. T-Mobile USA, Inc. v. Steadfast Ins. First, the reality is that only a very small percentage of personal injury cases in the US go to trial in the first place. For example, Illinois law allows for punitive damages in cases where the defendant engages in conduct with evil motive or with a reckless and outrageous indifference to a highly unreasonable risk of harm and with a conscious indifference to the rights and safety of others.1 Conversely, Florida law states that a defendant may be held liable for punitive damages if the defendant was guilty of intentional misconduct or gross negligence.2 In many states, claimants must meet a higher burden of proof to succeed on a punitive damage claim, offering clear and convincing evidence that a defendants conduct justifies such an award. State of the lawsuit where punitive damages where awarded. What You Need To Know About Punitive Damages In California - The Law Offices of Larry H. Parker. Something went wrong. As noted above, the ratio is only one factor that the courts take into consideration when determining whether a punitive damage award is reasonable. ART. For example, the manufacturer of a defective electronic component, which has caused a device to short-circuit and burn out, may allege lost profits and lost good will, in addition to costs of repair. Its actually a myth that punitive damages are awarded all the time. The courts in California base punitive damages on the defendants Editorial Note: We earn a commission from partner links on Forbes Advisor. Op-Ed Contends That Punitive Damages Are Insurable In California by Curt Cutting Attorney Kirk Pasichhas an op-ed in the Los Angeles Daily Burden of proof and heightened standard for punitive damages defined. Despite the punitive damages award being more than Californias preferred 4-to-1 ratio, the court upheld the award because it was not excessive, in and of itself. Punitive damages. They can be awarded by courts and juries. Insurers often argue in these cases that the way plaintiff is measuring damages means they are seeking the recovery of "economic losses" and not "property damage." It is a policy that only covers punitive damages. Finally, the article provides an overview of the availability of insurance for punitive damages and various options accessible to clients seeking to maximize their insurance coverage for punitive damages. For example, if you got into an accident while driving 10 miles over the limit on the highway, you might be found negligent, because you were speeding. Log in to access Markel's surety products. One of the largest punitive damage verdicts in the country in 1997, this verdict included $25 million in punitive However, most of the state rules regarding standards and caps for punitive damages apply broadly to all types of civil litigation, and the principles discussed herein can be informative outside the context of personal injury litigation. 3943, Punitive DAMAGES CACI No. Get Your Free Consultation From a Top Lawyer. California Corporation Code permits a corporation to purchase Directors and Officers Insurance, it does not require an entity to do so . While evidence of a defendants wealth may induce a jury to award an inflated punitive damage number (if the defendant has the metaphorical deep pockets), if the evidence of the defendants wealth demonstrates the punitive damages award would bankrupt the defendant, the award may be reduced to avoid such an outcome. From a practical perspective, puni-wrap policies are infrequently triggered because the vast majority of personal injury claims in the US settle and do not go to trial. 4 0 obj Corporate counsel are often tasked with negotiating An insurer in Washington could not eliminate its coverage obligation based on its insureds recovery from a third party. It is worth noting that, while insurers offering these endorsements have obtained state regulatory approval, there are few state or federal court decisions interpreting the enforceability of MFV/MFJ endorsements. Click to return to the beginning of the menu or press escape to close. The case is a reminder that how plaintiffs may characterize their case is not the measure of whether the claims are covered by an insurance policy. banc 2014). Oklahoma The cap is $100k or the amount of compensatory damages, whichever is greater, when the defendant acted with reckless disregard. The included tables and appendices contain updated information on punitive damage standards and available tort caps throughout the 50 states. Most wordings look to a substantial relationship between the insured, the insurer and the underlying facts of a claim. Many assume that only large, corporate defendants are at risk for punitive damage awards. But the trial court (backed by cases construing the act) ruled that only compensatory, and not restitutionary, damages were recoverable under that statute. The specific per-violation remedy may simply be a liquidated measure of a presumed personal injury that would otherwise be too small to have to prove. Connecticut has its own unique rule: Punitive damages are capped at the cost of litigation, including attorneys fees. 3943, Punitive DAMAGES CACI No. Punitive damages differ from compensatory damages, which are intended to compensate a victim or claimant for injuries or harm sustained. Moreover, clients of different industry classes, sizes and operations are at risk of a substantial punitive damage award being levied against them, even if they think they are not. In essence, a most favored nations (MFN) clause stipulates that the law applicable to the insurability of punitive damages under the policy will be the law which, out of a choice of several enumerated options, allows for coverage of punitive damages. 13, Claims Justia - California Civil Jury Instructions (CACI) (2022) 2332. In 2018, for example, a jury in Harris County, Texas, rendered a plaintiffs verdict in a trucking case for $89,050,000 in compensatory damages and $0 in punitive damages.7 Though the jury did not formally award punitive damages, the pain and suffering figure clearly reflected the jurys anger and their desire to punish the defendant. Perceptions about growing wealth disparities, a changing jury pool and desensitized jurors are contributing factors to the prevalence and severity of these awards. The insurers' "economic loss" defense usually depends on assuming that the only damages recoverable are the costs to repair or replace the property that's been damaged. Policyholders looking to insurance money to settle cases need to understand that defense counsel may not be sensitive to the insurance implications of how damages are characterized. As discussed earlier in this article, settlements are considered compensatory damages that are paid for by controlling policies, no matter which jurisdiction they are in. Michigan, Nebraska, Washington, and Puerto Rico do not allow for punitive damage awards. While it is likely that the defendant will appeal further to the South Carolina Supreme Court, the decision by the Court of Appeals to affirm the verdict underscores the unpredictable nature of courts decisions relating to punitive damage awards. While the controlling policy erodes the puni-wrap, the puni-wrap does not, in practice, erode the controlling policy. Webclear that punitive damages are insurable unless there is specific language excluding punitive damages rather than a general exclusion of penalties. The North Carolina Carter v. EnterCom Sacramento, LLC, 219 Cal.App.4th 337, 352 (Cal. Indeed, an insured who purchases a CGL policy in the US may also be able to procure a puni-wrap policy, if the domestic CGL carrier has a Bermuda office and issues such policies. In states called split-recovery, allocation, or apportionment states, some or the entire punitive damages award goes to the state, not the plaintiff. Third, a final award for punitive damages is paid by the insured. While punitive damages are available in most types of civil litigation, the focus of this article, particularly when discussing jury awards, is primarily on personal injury litigation. Sometimes, a court may decide that a punitive damages cap is unconstitutional and will rule that the cap is invalid. This low frequency can be attributed to two things. Policyholders concern that insurers will assert the exclusion as a basis to deny coverage Multi-factor authentication (MFA) is more than an annoying popup or text message when logging onto a companys website or platform. Punitive damages are not available in every state. Log in to access personal lines products including marine, specialty personal property, powersports, bicycle, and event insurance. While cases in which punitive damages have been awarded often make the latest news headlines, punitive damage awards are actually made much less frequently than compensatory damages. 1995) States have established standards for the bad actors conduct to determine whether a punitive damage award is warranted. Insurers in puni-wrap situations do not argue among themselves as to how to classify the damages and from which policy they will be paid, because the controlling policy and puni-wrap policy are both issued by subsidiaries of the same insurance company. As a result, businesses naturally seek to mitigate their exposure to punitive damages in civil litigation by procuring insurance, but such insurance may be hard to come by. California law requires that the court take 3 factors into consideration when evaluating the validity of a punitive damage award claim: Reprehensibility of the defendants conduct. Despite the reduction in award, McDonalds nevertheless revised the warnings on its coffee packaging to avoid similar liability in the future. The theory underlying certain states public policy against allowing insurance for punitive damages is that to do so would undermine the rationale of punitive damage awards, which is to punish the defendant. The coverage dispute in this area does not arise so much from plaintiff's characterization of its damages or the legal scope of remedies available in the case. This is the case with many consumer protection statutes. As noted above, an insured buys a puni-wrap policy in conjunction with a US CGL policy (referred to in the puni-wrap as the controlling policy). South Carolina The cap is $500k or three times the compensatory damages, whichever is greater. The cap is $50k or 10% of the defendants net worth, if the defendant is a small business. Property Damage. There are three ways in which punitive damages can be covered under an umbrella and excess casualty program: using an integrated occurrence form, purchasing a punitive damage wrap, or requesting a most favorable venue or most favorable jurisdiction (MFV/MFJ) endorsement. Punitive damages may be appropriate where there 2011 ALM Media Properties, LLC. Punitive damages are difficult to get because plaintiffs are typically required to show that the defendant acted in a particularly reprehensible manner. Similarly, MFV/MFJ endorsements may be drafted to select the law of a jurisdiction completely unrelated to the insurer, insured, occurrence or claimants, but courts may invalidate the provision. A wrap policy, issued by an alien Bermudian insurer affiliated with a domestic carrier, provides punitive damage coverage when the onshore policy is prohibited by law, statute or public policy from insuring punitive damages. More recently, in 2021, a federal appeals court in Florida12 upheld awards of $20.7 million in punitive damages and $6.25 million in compensatory damages against a tobacco products manufacturer, finding that a 3.3-to-1 ratio was neither excessive nor violative of constitutional due process. Co., et al ., No. Indiana The cap is $50k or three times the compensatory damages, whichever is greater. endobj These constraints typically include a fixed dollar amount (Virginia6 caps punitive damages at $350,000), a multiple of compensatory damages awarded (Wisconsins7 cap is the greater of $200,000 or twice the amount of the compensatory damages) or a limit tied to a percentage of the defendants net worth (Montana8 caps punitive damages at 3% of the defendants net worth, up to $10,000,000). And large commercial insureds procuring primary and excess insurance from US insurers $! 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