Maryland Senator Jamin B. (“Jamie”) Raskin introduced
Senate Bill 302 (House Bill 864 in the House of Delegates sponsored by Delegate
William C. Smith Jr., a Democrat from Montgomery County) which would make
repeat drunken drivers who injure or kill others liable for punitive damages in
some cases. Senate Bill 302 provides that a driver with a blood alcohol level
of more than .08 percent who kills or injures another person, and has been
convicted, pleaded no contest, or received probation before judgment for
drunken driving charges in the last five years, would be liable for punitive damages
if a finding for compensatory damages has first been made. See Caldor v. Bowden, 330 Md. 632, 625 A.2d 959 (1993) (noting that the requirement of a compensatory damages
foundation protects defendants from being punished for acts that the trial
court determines the defendant did not commit). The bill, if enacted, would
exempt drunk driving
from the legal restriction Maryland law ordinarily places on punitive damage
awards in personal injury cases, restricting them to cases in which the
defendant is guilty of actual malice: an
action motivated by a wrongful or evil motive,
intent to injure, ill will or fraud. See Tierco Maryland, Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004); Garcia v. Foulger Pratt, 155 Md. App. 634, 845 A.2d 16 (2003)).
Senate Bill 302 has major repercussions for the insurance industry,
including to those employers that may ultimately be held responsible for paying
a jury’s award. Of concern
is the fact that Maryland does not have a cap on punitive damages, and with no
discernible limit on case value, insurance companies would realistically be
forced to settle these claims, likely for full policy limits, in order to
protect their insureds from excess exposure. In that scenario, the drunk driver
who the bill seeks to punish would never actually stand trial in the civil
context.
This begs the question: what
safeguards are in place to control punitive damage verdicts? Proponents of the
bill point out that while compensatory damages would be measured under the civil
“more likely than not” standard, punitive damages would be measured by the
heightened “clear
and convincing evidence” standard. See Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992); see
also Garcia v. Foulger Pratt,155 Md. App. 634, 845 A.2d 16
(2003). In
addition, proponents argue that judges may still review and reduce a jury’s
award for punitive damages if it is “disproportionate” to the award of compensatory
damages or disproportionate to the driver’s conduct, taking into account the
gravity and continuing nature of the conduct. See Philip Morris, Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200 (2000).
Alternatively, representatives from the
Maryland Chamber of Commerce, the Maryland Motor Truck Association, and various
insurance companies argue that it is the criminal justice system which should
punish drunk drivers. Senator H. Wayne Norman Jr., a Republican from
Harford County and Cecil County, reminded the legislature that civil
legislation is intended to compensate victims, not punish wrongdoers or exact
society’s retribution, which is the role of criminal law.
In response to the opposition, Senator
Raskin raised the concern that drunk drivers are “notoriously being let off
with very light sentences.” While this fear may certainly be founded, it seems
the appropriate legislation should be aimed at imposing harsher criminal
sentences on the drunk driver rather than passing the cost of their egregious conduct
to the insurance and labor and employment industries.
As of the date of publication, the
Maryland Senate has passed S.B. 302. Given the major implications this
legislation may have on the insurance industry, RSRM is monitoring H.B. 864 as
it makes its
way through committee and ultimately to the Governor’s desk. Please
stay tuned for further updates.
