The issue of punitive damages has been used as a sword in court to punish egregious behavior that causes damages or injuries in states where such damages are allowed. The U.S. Supreme Court has set constitutional limitations on the amount of punitive damages that may be awarded, but it’s generally up to a jury to decide whether such damages are awarded and how much they should be.
In Louisiana, punitive damages are only allowed in two specific cases: where a person is injured by a drunk or legally impaired driver, where injuries are caused through an act of pornography involving juveniles or where a child 17 years or younger is criminally victimized by a sex offender. See La. Civil Code Arts. 2315.3, 2315.4 and 2315.7. To obtain punitive damages, the injured person must show that injuries were caused by “a wanton and reckless disregard for the rights and safety of others”. Our state legislature has chosen not to expand punitive damages to other areas of the law, no matter how horrible a corporation’s, person’s or business’s conduct is that causes injury to a worker or innocent passerby.
If you’re thinking about the recent award by U.S. District Judge Carl Barbier against BP for the Deepwater Horizon Oil Disaster, those damages that are awarded per barrel of oil spilled arise under federal–not state–law. The Clean Water Act and other federal statutes allow a court to assess such damages when it finds that the corporate conduct was “grossly negligent”, as Judge Barbier did in the BP case. Of course, BP is appealing, contesting, trying not to pay the compensation it promised years ago to people and businesses who suffered greatly as a result of this massive spill, and now it says it is appealing the award for ‘punitive’ damages for the oil it spilled as a result of its grossly negligent conduct.
The U.S. Chamber of Commerce–the enemy of just about every person who brings a claim for injuries against a business or employer–conducts what it claims is an independent annual survey of the “worst jurisdictions” or “judicial hellholes” in the United States. Almost every year, this Chamber “survey” rates Louisiana as a judicial hellhole for businesses. When I first read a story about the Chamber survey a few years ago, I got a copy of the survey just to see what these barons of big business were spouting off about. Believe it or not, one of the key factors in rating a state’s judicial climate was whether the state allowed punitive damages; since Louisiana only has a limited law on punitive, I thought the Chamber study was skewed. My own experience as a trial attorney for 35+ years is that Louisiana juries and judges reflect the conservative nature of the citizenry here: they don’t throw money around but award fair damages when they are deserved by the injured person. They don’t award punitive damages–except against drunken drivers or sex offenders–because the law does not allow them to.
It occurred to me then, and has been shown to be true year after year, that the Chamber survey is biased, slanted in favor of big corporate interests and is intended to be a smear against anyone who has the audacity to claim damages for legitimate injuries inflicted at the hands of others who are negligent or careless, who don’t follow the rules that they usually make. Its underlying purpose is to get state legislatures to the United States to limit the right of all innocent injured victims to bring claims for their damages, no matter how caused or how serious.
Let me give you an example of a Louisiana case where punitive damages were awarded: The driver of an 18-wheeler lets a personal friend, and two ladies of the night, occupy his truck while on a mission to deliver goods for his employer. The driver is drinking, has meth and other drugs in the cab and has pornographic videos playing on his front navigation screen for all to see, including the driver, while the rig is rolling down the road. These distractions prove too much to allow safe operation of the big rig, and he plows into a car, killing two people. Turns out the employer knew of this guy’s partying history, but let him drive anyway.
The jury awarded $15 million in punitive damages, along with compensatory damages to compensate the families for the losses of their loved ones. Why? The key reason is that if the jury–as the conscience of the community–decides that the corporate conduct that led to this driver’s insanity is not punished by a high punitive award, the corporation will continue to engage in ultra unsafe conduct, like failing to perform appropriate background checks on drivers who will be barreling down the road at high speeds in what can truthfully be described as a missile on the highway. A punitive damage award may be just the antidote to unconscionable conduct. Maybe, just maybe, the company will revamp its hiring practices, double check background records, conduct regular drug screens–all in an effort to make sure the drivers of these rigs have the maturity and background to operate them safely. And by going the extra mile to make sure they have safe drivers, the corporation can often present a defense against a punitive claim.
It’s also important to note that many insurance policies exclude punitive damages from their coverages. If there’s no insurance, such damages are assessed against the business whose system allowed the dangerous driver to operate the big rig, or against the sex offender who raped or attacked the young victim. Many of these offenders have no money to pay anything; they end up in jail and, later, in the newspaper professing their status as sex offenders. However, every so often, a juvenile sex offense is perpetrated by a ‘pillar of the community’. When that happens, the offended victim can often obtain punitive damages in addition to compensation for his or her physical and mental injuries.
So next time anyone complains or bellyaches about Louisiana’s judicial system and the high level of punitive damages, make sure you tell them that the only way to get such damages here is against drunk drivers and sex offenders who prey on juveniles–and that’s certainly two groups of people that should forever be subject to such damages when they injure or kill innocent people. And also tell them that Louisiana juries and judges are simply the mirror image of the public at large. Here, that image is one of a hard-working, proud, frugal people who look hard at every case they sit in judgment of and award damages that are proven and justified on a case by case basis.
I believe in our system. It is the best in the world. Disputes are solved in courts, not in duels on the street, or at least that’s the prevalent attitude. Different story, of course, when it comes to criminal activity that results in shootings, knifings and other injuries on the streets, usually involving drug turf wars in our inner cities or the increasing problem of domestic abuse.
At Kopfler & Hermann, we have been handling cases for maritime workers, boat crews, fishermen, maritime workers, boat crews, fishermen, victims of car accidents, injuries caused by premise defects, medical malpractice cases, employment discrimination cases and a myriad of other claims for damages for a combined 60+ years of legal practice. We have also handled business litigation, when two businesses or governmental entities cannot get along or resolve their differences out of court. These cases require a tremendous amount of preparation and cost to bring to a full blown trial, and it’s important to have an experienced attorney analyze your case and give you proper advice.
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