Addressing Punitive Damages Claims In Drunk Driving Cases In The Wake Of Strenke v. Hogner
Imagine the following scenario: You are defending a typical “rear-ender” auto accident case. The plaintiff has alleged that the defendant negligently ran into the back of the plaintiff’s car while the plaintiff was stopped at a stop sign, causing the plaintiff minor injuries. Now, consider that there is evidence that the defendant: was on his way home from a bar, had consumed two beers shortly before the accident, and had a blood alcohol content (“BAC”) of 0.10% (0.02% above the legal limit) shortly after the accident. The defendant is criminally charged with and pleaded guilty to driving under the influence, first offense. Now armed with evidence of the defendant’s drinking, the plaintiff adds a claim for punitive damages in his civil complaint. How should you proceed?
Since the Wisconsin Supreme Court decided Strenke v. Hogner -2 in early 2005, our firm has seen a marked, but not surprising, increase in the number of punitive damages claims in cases involving a defendant accused of driving under the influence. While there may be some cases that warrant the imposition of punitive damages against a drunk driver, there are strong arguments why the conduct of defendant driver described above does not meet the standard for awarding punitive damages articulated in Strenke.
A Brief History of Punitive Damages in the Drunk Driving Context
Prior to the legislature’s enactment of Wisconsin’s punitive damages statute in 1995,-3 whether a plaintiff was entitled to punitive damages was governed by common law. Under the common law, the standard for awarding punitive damages was whether the defendant’s conduct was “outrageous,” which included malicious conduct or conduct that was “in wanton, willful and in reckless disregard of the plaintiff’s rights.”-4 The plaintiff had to prove that the defendant’s conduct met the punitive damages standard by clear and convincing evidence.-5
In the drunk driving context, the Wisconsin Court of Appeals reversed a jury’s award for punitive damages under the common law standard in Lievrouw v. Roth.-6 In Lievrouw, there was some evidence that the defendant had consumed two beers prior to the accident, but the plaintiff failed to establish that the defendant’s conduct met the “outrageousness” standard by clear and convincing evidence.-7 The court of appeals pointed out that, while driving under the influence is the type of outrageous conduct that warrants the imposition of punitive damages in some circumstances, impairment is a matter of degree, and punitive damages are not appropriate in every case in which the defendant has been drinking before driving. However, the court explicitly refused to consider what level of impairment is required to warrant a punitive damages award and how such impairment is to be measured.-8
As the Strenke court acknowledged, by enacting the punitive damages statute, the legislature intended to make it more difficult for plaintiffs to recover punitive damages by replacing the “wanton, willful and reckless disregard” standard with the more stringent “intentional disregard” standard.-9 The standard for awarding punitive damages under Wis. Stat. § 895.043 reads as follows:
Standard of conduct. The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.-10
Until Strenke and its companion case, Wischer v. Mitsubishi Heavy Industries America, Inc.,-11 there was no guidance from the supreme court on how to interpret the phrase “intentional disregard of the rights of the plaintiff” contained in the statute.
The Wisconsin Supreme Court’s Decision in Strenke v. Hogner
In Strenke, defendant Hogner’s vehicle turned into the path of plaintiff Strenke’s car at an intersection, injuring Strenke.-12 At the time of the accident, Hogner had a BAC of 0.269%, and he admitted to drinking sixteen to eighteen beers in a five-hour span prior to the accident.-13 Hogner was criminally charged with and pleaded no contest to operating a motor vehicle while intoxicated, fifth offense.-14 In the civil suit brought by Strenke, Hogner conceded liability but contested damages.-15 In a bifurcated trial, the jury awarded Strenke $2,000 in compensatory damages and $225,000 in punitive damages —$200,000 more than Strenke’s attorney had requested in punitive damages.-16
Hogner moved for a directed verdict at the close of the plaintiff’s punitive damages evidence, arguing that there was insufficient evidence to show that Hogner acted maliciously towards Strenke or that Hogner intentionally disregarded Strenke’s rights.-17 The trial court denied Hogner’s motion, concluding that although there was no evidence of malicious conduct by Strenke, a jury could conclude that Hogner intentionally disregarded Strenke’s rights.-18 Hogner appealed the trial court’s punitive damages judgment on several grounds, and the court of appeals certified the case to the supreme court.-19
The first certified issue before the supreme court was what proof is required of the plaintiff to recover punitive damages under the phrase, “an intentional disregard of the rights of the plaintiff”?-20 After examining the statutory language, legislative history, and the relevant case law, the court concluded that intentional disregard of the plaintiff’s rights does not mean an “intent to cause injury to the plaintiff,” as the court of appeals concluded in Wischer, and as Hogner argued.-21 Instead, the court set forth a three-part test for determining whether a defendant intentionally disregarded the plaintiff’s rights and held that:
[A] person acts in an intentional disregard of the rights of the plaintiff if the person acts with a purpose to disregard the plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded. This will require that an act or course of conduct be deliberate. Additionally, the act or conduct must actually disregard the rights of the plaintiff, whether it is a right to safety, health or life, a property right, or some other right. Finally, the act or conduct must be sufficiently aggravated to warrant punishment by punitive damages.-22
Importantly, the supreme court cautioned trial courts to act as “gatekeepers” in determining whether to submit the punitive damages question to the jury, and that trial courts must be satisfied that evidence has been presented that entitles a plaintiff to punitive damages by the clear and convincing evidence standard, or middle burden of proof.-23 The Strenke court also issued a warning to trial courts in addressing punitive damages claims in drunk driving cases that “not every drunk driving case will give rise to punitive damages.”-24
The second certified issue considered by the Strenke court was whether the defendant’s conduct must be directed at the specific plaintiff seeking punitive damages.-25 After examining the legislative history and the common law, the court concluded that the defendant’s conduct does not have to be directed at the specific plaintiff who is seeking punitive damages from the defendant.-26 The court reasoned that such an interpretation would allow a defendant who intentionally disregarded the rights of numerous people to escape liability by arguing that the defendant did not intend to disregard the rights of the particular plaintiff claiming punitive damages, while a defendant whose conduct was directed specifically at one person would be subjected to punitive damages.-27
The Strenke court then considered whether there was sufficient evidence to submit the issue of punitive damages to the jury in light of its holding.-28 First, the court determined that Hogner’s conduct of drinking sixteen to eighteen beers and then driving under the influence were deliberate acts.-29 Second, Hogner intentionally disregarded Strenke’s right to safety on the roadways by drinking and driving with a BAC of .269%.-30 The court pointed out that although Hogner may not have targeted Strenke specifically, Hogner’s conduct intentionally disregarded the rights of all motorists, which also implicated Strenke’s right to safety.-31 Third, the court was satisfied that Hogner’s conduct was “sufficiently aggravated to warrant punishment by punitive damages,” because this incident was Hogner’s fifth DUI offense and because Hogner admitted to drinking sixteen to eighteen beers within five hours the night of the accident.-32 Thus, the court held that there was sufficient evidence that Hogner was “aware that his conduct was substantially certain to cause a disregard of Strenke’s rights,” and that the punitive damages issue was properly submitted to the jury.-33
Like the pre-statute Lievrouw court, the Strenke court also refused to create any bright line rules regarding the level of impairment required or how that impairment should be measured in assessing whether the punitive damages issue should be submitted to the jury in a case involving a defendant driving under the influence. Instead, the court left it to trial courts to determine whether the punitive damages standard has been met on a case-by-case basis.
Handling Punitive Damages Claims in Drunk Driving Cases After Strenke
When met with a punitive damages claim against a defendant accused of driving under the influence, it is important to quickly and thoroughly investigate the facts surrounding the drinking and driving. If the relevant facts appear to fall short of the punitive damages standard articulated in Strenke, a partial summary judgment motion on the punitive damages claim might be appropriate. The key to a successful summary judgment motion appears to be based upon the second and third Strenke factors: that the defendant’s conduct did not actually disregard a right of the plaintiff, and that the defendant’s conduct was not “sufficiently aggravated” to warrant a punitive damages award. Of course, the same arguments discussed below would be helpful in arguing for the dismissal of a punitive damages claim at the close of the plaintiff’s evidence as well. As in Strenke, a plaintiff in a case involving alcohol use and driving will usually allege that the defendant intentionally disregarded the rights of the plaintiff, rather than allege that the defendant acted with actual malice towards the plaintiff.-34
The Strenke decision itself unfortunately gives little guidance on how trial courts are to apply the three-part test for determining whether the defendant intentionally disregarded the plaintiff’s rights. The first inquiry in determining whether the defendant “[acted] with a purpose to disregard the plaintiff’s rights, or [was] aware that his or her acts [were] substantially certain to result” in a disregard of the plaintiff’s rights is that the defendant’s conduct must have been deliberate. The Strenke court stated that Hogner’s acts of drinking a large amount of alcohol and then driving were deliberate acts, and that no one forced him to do so. Thus, it is difficult to imagine a situation in which the defendant’s conduct of drinking and driving would not be considered deliberate under the supreme court’s view.
The second element, whether the defendant’s conduct actually violated the plaintiff’s rights, also was given little attention in Strenke. The court stated that Hogner intentionally violated Strenke’s right to be safe on the highways by driving after drinking. The court specifically noted Strenke’s high BAC of .269% with respect to this factor. This begs the question — is there some lower BAC that a defendant could have that the court would consider not to be in violation of the plaintiff’s right to safety on the roads?
There is little doubt that plaintiffs will make the argument that consuming alcoholic beverages in any amount and then driving constitutes an intentional disregard of the safety rights of others on the road. However, a persuasive counter-argument exists that driving with a much lower BAC, for example, at or below the legal limit or even a few hundredths of a percentage above the legal limit, would not actually violate a plaintiff’s right to safety. Indeed, the Lievrouw court commented that “[e]ven proof that the defendant’s conduct was criminal might not be sufficient” to warrant an award of punitive damages.-35
Along with whether there was an actual violation of the plaintiff’s right to safety on the roads, the defendant must be aware that his or her conduct was “substantially certain” to result in a violation of the plaintiff’s right to safety. Although drunk driving statistics do indicate that driving under the influence continues to be a serious problem in our state, those same statistics also demonstrate that it is not “substantially certain” that drinking and driving will violate the safety rights of others. According to the Wisconsin Department of Transportation, 38,324 people were arrested for driving under the influence in 2000 (the latest year for which statistics are available).-36 That year, there were 9,096 alcohol-related crashes in Wisconsin.-37 Assuming that every drunk driver was caught and charged, and common sense indicates that there are more drunk drivers on the road than those actually caught, less than 24% of drunk drivers were involved in crashes. Thus, statistically, it is not “substantially certain” that driving under the influence will violate the safety rights of other drivers. Moreover, there were 6,836 injuries and 301 deaths from alcohol-related accidents in 2000.-38 Again, using the assumption that every drunk driver was caught and charged, only 18% of drunk drivers actually caused an injury to a person, including to the drunk driver. Evidence that less than one in four incidents of drunk driving results in a crash, and less than one in five incidents of drunk driving results in injury does not amount to a “substantial certainty” that the plaintiff’s safety rights will be disregarded.
Finally, the court must be satisfied that the conduct of the defendant was “sufficiently aggravated” to warrant an award of punitive damages. The Strenke court concluded that Hogner’s four prior DUI convictions and the large quantity of alcohol he consumed in a relatively short period of time amounted to conduct that was “sufficiently aggravated” to be punishable by punitive damages. However, would the defendant’s conduct in the scenario in the introduction also meet the “sufficiently aggravated” requirement? A strong argument can be made that drinking only two beers and then driving is not the type of aggravated conduct that warrants punishment by a punitive damages award, especially if it the defendant’s first DUI offense. Indeed, the Lievrouw court reversed a punitive damages award under the less stringent common law standard
against a defendant who may have had two alcoholic drinks prior to the accident, notwithstanding evidence that the same defendant had previously hit and killed a four-year-old pedestrian after drinking and driving.-39
Perhaps the most important point to be made in arguing for the dismissal of a punitive damages claim in a drunk driving case is Strenke’s cautionary note that trial courts are to act as “gatekeepers” in determining whether to submit the punitive damages question to the jury. Further, the Strenke court explicitly acknowledged that under its interpretation of “intentional disregard of the rights of the plaintiff,” not all drinking and driving cases would support an award for punitive damages. Moreover, the legislature sought to raise rather than lower the bar for recovery of punitive damages. Keeping these points in mind, there is a strong basis for arguing that the conduct of the hypothetical defendant in the example in the introduction would not meet the standard for awarding punitive damages in a drinking and driving case under Strenke.
Insurance Considerations in Punitive Damages Claims
Because a defendant accused of drinking, driving and causing an accident will typically be covered under an auto insurance policy, special considerations come into play when punitive damages are claimed. Generally, punitive damages awards are not covered by insurance policies. This poses a difficult question for the insurer: Should the insurer retain coverage counsel on the punitive damages claim, or should merits counsel handle the punitive damages claim subject to a reservation of rights by the insurer? In addition, could the insurer risk a bad faith claim by its insured if the uninsured punitive damages claim is not aggressively defended? There are no easy answers to these questions, but defense counsel and insurers should carefully consider their options in addressing punitive damages claims in drinking and driving cases.
In summary, the plaintiffs’ bar appears to be asserting more punitive damages claims in cases involving evidence of drinking and driving by the defendant since Strenke. When faced with a fact pattern involving a defendant who only had a few alcoholic drinks prior to driving, and where the defendant has little or no prior history of drinking and driving, defense counsel should promptly seek dismissal of the punitive damages claim in a partial summary judgment motion. Of course, the same points raised on summary judgment would also be appropriate in seeking dismissal of the plaintiff’s punitive damages claim for insufficient evidence at the close of the plaintiff’s case, should such a motion be unsuccessful. It will be interesting to see how the trial courts handle these cases.
Patricia J. Epstein is a shareholder and trial attorney at Bell, Gierhart & Moore, S.C., practicing in the areas of automobile liability, insurance defense and medical malpractice. She graduated with honors from Bryn Mawr College in Pennsylvania and Brooklyn Law School in New York, and has been engaged in civil litigation defense since 1989.
Kelly J. Stohr is an associate in the law firm of Bell, Gierhart & Moore, S.C., where she practices in the areas of civil litigation, medical malpractice defense, insurance defense, and business law. She received her B.A. degree, magna cum laude, from the University of California-Santa Barbara. She graduated with honors from the University of Wisconsin Law School in 2004, and was a member of the Wisconsin Law Review.
1-The authors are grateful for the research contributions of Francis X. Sullivan and Amy B.F. Tutwiler in preparing this article.
2-2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296.
3-Wisconsin’s punitive damages statute, Wis. Stat. § 895.85, was renumbered to Wis. Stat. § 895.043 by 2005 Wis. Act 155 § 71, eff. April 5, 2006.
4-Sharp v. Case Corp., 227 Wis. 2d 1, 21, 595 N.W.2d 380 (1995).
5-Brown v. Maxey, 124 Wis. 2d 426, 433, 369 N.W.2d 677 (1985).
6-157 Wis. 2d 332, 347-48, 459 N.W.2d 850 (Ct. App. 1990).
7-Id. at 340, 347.
8-Id. at 348.
9-Strenke, 2005 WI 25, ¶22.
10-Wis. Stat. § 895.043(3).
11-2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320.
12-Strenke, 2005 WI 25, ¶5.
13-Id. at ¶8.
14-Id. at ¶6.
15-Id. at ¶7.
16-Id. at ¶7.
17-Id. at ¶9.
19-Id. at ¶1.
20-Id. at ¶2; Wis. Stat. § 895.043(3).
21-Strenke, 2005 WI 25, ¶19.
22-Id. at ¶38.
23-Id. at ¶41 (quoting Lievrouw, 157 Wis. 2d at 344, 459 N.W.2d 850).
24-Id. at ¶42 (citation omitted).
25-Id. at ¶43.
26-Id. at ¶51.
27-Id. at ¶¶47-48.
28-Id. at ¶52.
29-Id. at ¶55.
30-Id. at ¶56.
32-Id. at ¶57.
33-Id. at ¶¶54, 58. However, the court was equally divided on the question of whether the punitive damages award was excessive and remanded that question for consideration by the court of appeals. Id. at ¶ 58. On remand, the court of appeals held that the punitive damages award was not excessive. Strenke v. Hogner, 2005 WI App 194, 287 Wis.2d 135, 704 N.W.2d 309.
34-Wis. Stat. § 895.043(3).
35-Lievrouw, 157 Wis. 2d at 343.
36-Wisconsin Department of Transportation, Drunk Driving Arrests and Convictions, available at http://www.dot.wisconsin.gov/safety/motorist/drunk... (last visited November 16, 2006).
38-Id. Note that a single accident may have injured more than one person, so there were likely far fewer injury accidents than the above-numbers indicate.
39-Lievrouw, 157 Wis. 2d at 340, 341-42.