If your accident was caused by a drunk driver, you should carefully consider whether punitive damages might be awarded as additional compensation for your injuries and experience. To collect punitive damages, you must show a willful decision to endanger others. You must also show that the driver will not be properly punished by the criminal courts. A first offender with a blood alcohol content just slightly above the legal limit likely would not be subject to a civil claim for punitive damages.
The courts look for a pattern of willful disregard of the rights and safety of other drivers before they will allow a punitive damage claim. In cases of extremely excessive speed, repeat offense drunk driving, racing, or other egregious conduct leading to accident and injury, a punitive damage claim should be presented. Proper investigation should include careful review of the police file and the criminal court’s disposition of all charges arising from the accident. Also, a nationwide search of the responsible driver’s past driving record and past criminal history is imperative.
At the time of trial or settlement discussions, a subsequent criminal record search is also imperative. Repeat offense drunk drivers will often commit subsequent offenses. If we can show that the drunk driver in your case willfully drove impaired again after your accident, this solidifies the claim for punitive damages.
The victim’s right to claim punitive damages in North Carolina is governed purely by statute. Our punitive damage statute, N.C.G.S. 1D-35, provides as follows:
- In determining the amount of punitive damages, if any, to be awarded, the trier of fact (jury):
- shall consider the purposes of punitive damages set forth in N.C.G.S. 1 D-1 (to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts); and
- may consider only that evidence that relates to the following:
- The reprehensibility of the defendant’s motives and conduct.
- The likelihood, at the relevant time, of the defendant’s conduct causing serious harm.
- The degree of the defendant’s awareness of the probable consequences of his conduct.
- The duration of defendant’s wrongful conduct.
- The actual damages suffered by the claimant/victim.
- Any concealment by the defendant of the facts or the consequences of his/her conduct.
- The existence and frequency of any similar past conduct by the defendant.
- Whether the defendant profited from the wrongful conduct.
- The defendant’s ability to pay punitive damages as evidenced by his/her income, revenues, or net worth.
A punitive damage trial is different from a typical personal injury case based on claims of negligence. In the typical injury case, the victim cannot offer trial evidence of the defendant’s wealth or assets. In the punitive damage setting, this evidence is allowed. While the North Carolina appellate courts have not decided on this issue, we believe that a punitive damage trial should allow introduction into evidence of all insurance policies available to fund the verdict for the defendant’s benefit. If insurance pays the punitive award, the defendant is not being punished. Admitting evidence of available insurance will help the jury determine the size of the verdict necessary to actually reach the defendant’s personal funds. This legal maneuver should vastly increase the value of a punitive damage award. Also, this approach would ensure that the punishment hits the proper target.
Recent legislation has imposed a ceiling on the jury award of punitive damages. Pursuant to N.C.G.S. 1D-25, punitive damages are capped at the greater of three times the compensatory damages or $250,000.00, whichever is greater. If the jury grants a much higher punitive award, the judge will write the verdict down so the judgment imposed does not exceed the statutory limit.
While there is a cap on punitive damages in some cases, the North Carolina legislature specifically excluded drunk driving judgments from this cap. Thus, we are free to pursue and collect whatever verdict a jury feels is appropriate against a drunk driver and the full amount is recoverable. Further, under federal bankruptcy law, a drunk driver who causes serious injuries and who is later tagged with a large verdict and judgment cannot file bankruptcy and avoid that judgment.