Whew, you folks are something. Punitive damages are only awarded in our state, California, where it is proved by “clear and convincing evidence” that the defendant acted with fraud oppression or malice. Without that – no punitive damges.
There have been many, many legislative bills proposed to have some portion of the punitive damages go to the state. Nice idea, these bills rarely pass. Why? because insurance companies vigorously oppose them because they think that if juries know this law, they will be even more puntive damage awards and juries will award even more in punitive damages.
Of course where a law says that it all goes to the state, the state will never get any money because no one will ask for punitive damages just for the good of the state.
Also, the United States Supreme Court has (in a truly activist decision) imposed substantial constitutional limits on punitive damages, such that where a jury awards too much, it is unconstitutional.
Also, punitive damages are actually awarded in probably less than 1% of all cases filed.
Huh? Insurers are paying the new cost of repairs, which makes the homeowners whole and there is something wrong with that? Also, most states are valued policy states which means if the home is a total loss the insurer has to pay the full value of the policy.
How about we add some sense and reason to the process. And it is *all* about deep pockets and greed. We need to figure out how to put restraints so that we’re punishing willful, grossly negligent or intentional conduct, not just simple negligence which is often the case (yes, I understand the legal distinction, but a lot of cases I see sure look like simple negligence though a crafy attorney will paint it differently)
I think the real thought process here is that if you take the profit motive away from the plaintiff attorney to seek punitive damages, you will see more reasoned results. This would happen if punitives were given to the state and the plaintiff attorney not permitted to tax fees. Probably never happen, but that’s the theory. I agree states would probably mismanage that, but want to bet that the money is put to better use than if given to the plaintiff or their attorney?>
The free enterprise system is based primarily upon profit and initative. Making fraud and wilful bad faith unprofitable should be the goal of any award of punitive damages.
This could be very efficiently achieved by splitting any award of punitive damages three ways–between the state; judgment holder and the attorney who spent the time and effort in obtaining the judgment. Also, the wrongdoer could not deduct the cost associated with paying the judgment as an expense on income tax, nor, in the case of insurance fraud, place the cost in the premium rate base.
Insurers who collect reconstruction dollar values that are woven into the anticipated loss-replacement cost values of a structure, per premium payments, and then at claim loss adjusting time do not disclose to their customers that certain intrinsic construction dollar loss values are being left out of their home’s [damage loss claim] dollar value, appear to be practicing a financial “bait-and-switch” now-you-see-it-now-you-don’t type indemnification compensation schema.
Some Insurers-Agents sell one thing, some adjusters sell another.
It is simply amazing to me that people with interest enough to actually read news and comment on it (at least somewhat thoughtfully) believe everything they hear from their friends, politicians, and TV (e.g., Fox News). I wish someone would actually cite to which case the are referring when claiming plaintiffs get awarded for finger scratches or (my personal favorite) after injuring themselves during the process of committing burglary. The McDonalds Coffee victim received third degree burns that tore through her skin to the BONE all because McDonalds refused to turn down the temperature on its coffee (even after settling previous disputes). Brewing w/ extremely hot water allowed them to reuse the beans and save MONEY.
As for the idea that the possibility of a punitive damages award causes plaintiff’s attorneys to act irrationally and pursue frivolous cases: ABSURD! When it comes to money, any successful businessman, corporate director/officer, or LAWYER becomes the epitome of rational behavior. If a lawyer wants to stay afloat (i.e. feed himself and his family) he will only take cases likely to reap benefits that outweigh the costs of brining the case. Frivolous cases are worthless!! For a plaintiff to get punitives, his case must survive summary judgment motions, motions to dismiss, motions for directed verdict, and juries comprised U.S. citizens that have been subjected to so much B.S. regarding punitive damages they are likely as slanted as some of the folks that have commented on this board. Further, as Mr. Levinson pointed out, to get punitive damages a pretty high standard must be met.
Now that I have dispelled those myths, let me explain to you all why punitive damages are a necessary evil. Despite popular belief, the investigation and prosecution of every fraudulent act of every player in corporate America is IMPOSSIBLE. Thus, punitive damages provide an incentive for common people to bring claims they would not otherwise bring in order to vindicate society and DETER HARMFUL CONDUCT (the historically accepted goal of punitive damages).
Deterrence brings me to my next point. Putting arbitrary ratio limitations on punitive damages is in DIRECT conflict with the deterrence objective. There is simply NO economic justification for it. Think about it (please!!). If you had a million dollars, would a $10 fine deter you from committing an act you profit $20 from each time you commit it? NO! 10 dollars is a small percentage of your income. This is exactly how MULTI-BILLION dollar companies think about $10 million punitive damage awards.
Why evil? I concede that punitive damage awards are at times a windfall to the plaintiff; and that your typical juror is not exactly an economics wiz and has sometimes contributed to not so rationally based awards. However, why don’t the courts or legislators at least attempt to come up with a deterrence effective formula and give jurors credit enough to follow it? Ratios are, well, DUMB! We ought to be disgorging profit or taking away a percentage of net worth! As for the windfall, give half to the state and mandate that it be used for fighting the war on terror for all I care (thought I would throw a bone to all the Bush fans).
Punitive damages, from the perspective of the claimant and his or her lawyer, are based on the profit motive. Defendants, and their lawyers, on the other hand, view punitive damages from a position of fear.
Name, if you can, two more important American ecomomic influences than GREED and FEAR.
Almost all Americans aspire to be rich–but they fear losing what they have.
The deterrent affect of punitive damages keeps things in perspective for those tempted to overreach–and provides the vehicle to disgourge ill-gotten gains from wrongdoers who abuse the system.
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Whew, you folks are something. Punitive damages are only awarded in our state, California, where it is proved by “clear and convincing evidence” that the defendant acted with fraud oppression or malice. Without that – no punitive damges.
There have been many, many legislative bills proposed to have some portion of the punitive damages go to the state. Nice idea, these bills rarely pass. Why? because insurance companies vigorously oppose them because they think that if juries know this law, they will be even more puntive damage awards and juries will award even more in punitive damages.
Of course where a law says that it all goes to the state, the state will never get any money because no one will ask for punitive damages just for the good of the state.
Also, the United States Supreme Court has (in a truly activist decision) imposed substantial constitutional limits on punitive damages, such that where a jury awards too much, it is unconstitutional.
Also, punitive damages are actually awarded in probably less than 1% of all cases filed.
Huh? Insurers are paying the new cost of repairs, which makes the homeowners whole and there is something wrong with that? Also, most states are valued policy states which means if the home is a total loss the insurer has to pay the full value of the policy.
PASS THE COST OF THE JUDGMENT TO THE CONSUMING PUBLIC EITHER BY INCREASE PRODUCT COST OR INSURANCE PREMIUM: !!!VERY BAD!!!
How about we add some sense and reason to the process. And it is *all* about deep pockets and greed. We need to figure out how to put restraints so that we’re punishing willful, grossly negligent or intentional conduct, not just simple negligence which is often the case (yes, I understand the legal distinction, but a lot of cases I see sure look like simple negligence though a crafy attorney will paint it differently)
I think the real thought process here is that if you take the profit motive away from the plaintiff attorney to seek punitive damages, you will see more reasoned results. This would happen if punitives were given to the state and the plaintiff attorney not permitted to tax fees. Probably never happen, but that’s the theory. I agree states would probably mismanage that, but want to bet that the money is put to better use than if given to the plaintiff or their attorney?>
The free enterprise system is based primarily upon profit and initative. Making fraud and wilful bad faith unprofitable should be the goal of any award of punitive damages.
This could be very efficiently achieved by splitting any award of punitive damages three ways–between the state; judgment holder and the attorney who spent the time and effort in obtaining the judgment. Also, the wrongdoer could not deduct the cost associated with paying the judgment as an expense on income tax, nor, in the case of insurance fraud, place the cost in the premium rate base.
joe@joelongley.com
arfman,
Insurers who collect reconstruction dollar values that are woven into the anticipated loss-replacement cost values of a structure, per premium payments, and then at claim loss adjusting time do not disclose to their customers that certain intrinsic construction dollar loss values are being left out of their home’s [damage loss claim] dollar value, appear to be practicing a financial “bait-and-switch” now-you-see-it-now-you-don’t type indemnification compensation schema.
Some Insurers-Agents sell one thing, some adjusters sell another.
http://www.tdi.state.tx.us/commish/bulletins/b-0045-8.html
Roger Poe
rogerpoe@acnet.net
It is simply amazing to me that people with interest enough to actually read news and comment on it (at least somewhat thoughtfully) believe everything they hear from their friends, politicians, and TV (e.g., Fox News). I wish someone would actually cite to which case the are referring when claiming plaintiffs get awarded for finger scratches or (my personal favorite) after injuring themselves during the process of committing burglary. The McDonalds Coffee victim received third degree burns that tore through her skin to the BONE all because McDonalds refused to turn down the temperature on its coffee (even after settling previous disputes). Brewing w/ extremely hot water allowed them to reuse the beans and save MONEY.
As for the idea that the possibility of a punitive damages award causes plaintiff’s attorneys to act irrationally and pursue frivolous cases: ABSURD! When it comes to money, any successful businessman, corporate director/officer, or LAWYER becomes the epitome of rational behavior. If a lawyer wants to stay afloat (i.e. feed himself and his family) he will only take cases likely to reap benefits that outweigh the costs of brining the case. Frivolous cases are worthless!! For a plaintiff to get punitives, his case must survive summary judgment motions, motions to dismiss, motions for directed verdict, and juries comprised U.S. citizens that have been subjected to so much B.S. regarding punitive damages they are likely as slanted as some of the folks that have commented on this board. Further, as Mr. Levinson pointed out, to get punitive damages a pretty high standard must be met.
Now that I have dispelled those myths, let me explain to you all why punitive damages are a necessary evil. Despite popular belief, the investigation and prosecution of every fraudulent act of every player in corporate America is IMPOSSIBLE. Thus, punitive damages provide an incentive for common people to bring claims they would not otherwise bring in order to vindicate society and DETER HARMFUL CONDUCT (the historically accepted goal of punitive damages).
Deterrence brings me to my next point. Putting arbitrary ratio limitations on punitive damages is in DIRECT conflict with the deterrence objective. There is simply NO economic justification for it. Think about it (please!!). If you had a million dollars, would a $10 fine deter you from committing an act you profit $20 from each time you commit it? NO! 10 dollars is a small percentage of your income. This is exactly how MULTI-BILLION dollar companies think about $10 million punitive damage awards.
Why evil? I concede that punitive damage awards are at times a windfall to the plaintiff; and that your typical juror is not exactly an economics wiz and has sometimes contributed to not so rationally based awards. However, why don’t the courts or legislators at least attempt to come up with a deterrence effective formula and give jurors credit enough to follow it? Ratios are, well, DUMB! We ought to be disgorging profit or taking away a percentage of net worth! As for the windfall, give half to the state and mandate that it be used for fighting the war on terror for all I care (thought I would throw a bone to all the Bush fans).
Sincerely,
ckennedy17@cox.net
Punitive damages, from the perspective of the claimant and his or her lawyer, are based on the profit motive. Defendants, and their lawyers, on the other hand, view punitive damages from a position of fear.
Name, if you can, two more important American ecomomic influences than GREED and FEAR.
Almost all Americans aspire to be rich–but they fear losing what they have.
The deterrent affect of punitive damages keeps things in perspective for those tempted to overreach–and provides the vehicle to disgourge ill-gotten gains from wrongdoers who abuse the system.