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IN THE FLORIDA SUPREME COURT
CASE NO. SC03-1100
Lower Tribunal No.: 4D02-1346
STACEY and ROBERT ROBINSON,
Petitioners,
v.
SIDENY ALAN ZUCKERMAN,
Respondent.
/
PETITIONERS’ INITIAL BRIEF ON THE MERITS
Diego C. Asencio, Esq.
Florida Bar #: 352942
Counsel for Petitioners
Diego C. Asencio, P.A.
636 U.S. Hwy. 1, Suite 115
North Palm Beach, Fl 33408
Tel: (561) 844-0840
Fax: (561) 844-0855
TABLE OF CONTENTS PAGE(S)
I TABLE OF CONTENTS................................................... i
II TABLE OF CITATIONS................................................... ii-iv
III STATEMENT OF THE CASE AND FACTS.................. 1-4
IV SUMMARY OF ARGUMENT.......................................... 5-6
V ARGUMENT....................................................................... 7-19
FLORIDA PUBLIC POLICY STRONGLY SUPPORTS
RECOGNIZING A DRUNK DRIVING EXCEPTION TO
THE RULE CREATED IN ARAB TERMITE V. JENKINS
VI. CONCLUSION....................................................................... 20
i
TABLE OF CITATIONS
CASES PAGE(S)
Aagaard-Juergensen, Inc. v. Lettellier,
579 So.2d 404 (Fla. 5th DCA 1991).................................. 18
Arab Termite & Pest Control of Florida v. Jenkins,
409 So.2d 1039 (Fla. 1982)................................................. 3,4,6,14,19
Battemento v. Dove Foundation, Inc.,
593 So.2d 234, 241 (Fla. 5th DCA 1991).......................... 11
Celotex Corp. v. Pickett,
490 So.2d 35 (Fla. 1986).................................................... 13
Ingram v. Petit,
340 So.2d 922 (Fla. 1976).................................................. 8,9,13,15
Jones v. Greeley,
6 So. 448 (Fla. 1889).......................................................... 11
Joab, Inc. v. Thrall,
245 So.2d 291 (Fla. 3d DCA 1971)................................... 14
Kerpely v. State Auto. Ins. Co.,
144 B.R. 66 (N.D. Ohio 1992)........................................... 10
Morales v. Adams,
761 F. 2d 1422 (9th Cir. 1985)......................................... 10
Ricci v. Thompson,
548 So.2d 1154 (Fla. 2d DCA 1989)................................. 11
Rinaldi v. Aaron,
314 So.2d 762 (Fla.1975)................................................... 11
Seaboard A.L. Ry. v. Smith,
53 Fla. 375, 43 So.2d 235 (Fla. 1907)............................... 11
ii
CASES (CONT’D) PAGE(S)
Smith v. Bagwell,
19 Fla. 117 (Fla. 1882)....................................................... 17
Stackhouse v. Hudson,
859 F. 2nd 1418 (9th Cir. 1988)....................................... 11
State v. Van Hubbard,
751 So.2d 552 (Fla. 1999).................................................. 11
State v. Finelli,
780 So.2d 31 (Fla. 2001)................................................... 13
State Farm Mut. Auto. Ins. Co. v. Kupinsky,
133 B.R. 993 (S.D. Ill. 1991)............................................. 10
Warhurst v. White,
310 Ark. 546, 838 S.W. 2d 350 (Ark. 1992).................... 19
Winn & Lovett Grocery Co. v. Archer,
171 So.2d 214 (Fla. 1936).................................................. 13
STATUTES
§316.193(3)(a)-(c)(3), Fla. Stat.................................................... 12
§316.1931(2), Fla. Stat................................................................. 11
Ch. 86-296, §13, Laws of Florida............................................... 11
§772.11, Fla. Stat.......................................................................... 18
§768.736, Fla. Stat......................................................................... 12
§768.76, Fla. Stat.......................................................................... 12
11 U.S.C. §523(a)(9)..................................................................... 10
iii
MISCELLANEOUS PAGE(S)
Counsel’s Appeal in Civil Case to Wealth or
Poverty of Litigants as Grounds for Mistrial,
New Trial or Reversal, 32 ALR 2d 9 (1956).............................. 11
Partners in Progress: National Impaired Driving
Goals And Strategies for 2005, February 21-22, 1995.............. 7
Standard Jury Instructions-Criminal Cases No. 92-1,
723 So.2d 123 (Fla. 1998)............................................................. 12
DOT HS 809 470........................................................................... 7-8
Traffic Tech, No. 280 June 2003.................................................. 8
iv
PRELIMINARY STATEMENT
STACEY AND ROBERT ROBINSONS were the Appellees below,
and are the petitioners herein. They will be referred to as "THE
ROBINSONS" or "Petitioners” or by individual name. SIDNEY ALAN
ZUCKERMAN was the Appellant below, and is the respondent herein. He
will be referred to as "ZUCKERMAN." Various appeals were consolidated
below by the 4th District Court of Appeal for purposes of the record on
appeal. The following symbols will be used for the consolidated records on
appeal:
(R1 ) -- Record on Appeal Case No. 4D01-4556
(R2 ) -- Record on Appeal Case No. 4D01-4557
(R3 ) -- Record on Appeal Case No. 4D02-997
(R4 ) -- Record on Appeal Case No. 4D02-1346
(T ) -- May 31, 2001 Trial Transcript on punitive damages
(DZ ) -- November 12, 1999 Deposition of ZUCKERMAN
v
STATEMENT OF THE CASE AND FACTS
The Fourth District Court of Appeal in Zuckerman v. Robinson, 28
Fla. L. Weekly D 1381 (Fla. 4th DCA June 11, 2003) certified a question of
great public importance to this court:
WHETHER THE ECONOMIC CASTIGATION LIMITATION
ON PUNITIVE DAMAGES SHOULD BE ELIMINATED
ENTIRELY OR AT LEAST AMENDED IN CASES OF
INJURY CAUSED BY DRIVING WHILE INTOXICATED
This court has jurisdiction. Fla. R. App. P. 9.030(a)(2)(A)(v).
In the appeal below, ZUCKERMAN appealed the amount of a punitive
damages verdict in a hit and run, rear-end DUI car crash. There was no
issue that the punitive damages were merited. The propriety of the jury’s
findings in support of those punitive damages was not in question. The jury’s
punitive damage award was roughly equal to the compensatory damage
award1. ZUCKERMAN’s sole argument before the 4th District Court of
Appeal was that his meager net worth mandated remittitur under existing
Florida law. The Fourth District Court of Appeal reluctantly agreed with
ZUCKERMAN but certified the above question.
1
At trial the jury specifically found ZUCKERMAN was “driving while
intoxicated” and that he did “act in such a gross and flagrant manner at the
time of the accident so as to show a reckless disregard of human life or the
safety of persons exposed to the effects of his conduct” (R1 599). The only
mitigating evidence on punitive damages at trial was the live testimony of
ZUCKERMAN that he had little in the way of assets or income (T 1-13).
What makes this case special is that ZUCKERMAN was so
1 The jury returned verdicts of $243,952.65 in compensatory
damages (R1 597-600) and of $250,000.00 in punitive damages
on May 31, 2001 (R1 603).
completely without remorse. The jury received the testimony of
ZUCKERMAN via his video-taped deposition of November 12, 1999. The
deposition testimony showed that ZUCKERMAN had no misgivings
whatsoever (DZ 27-28, 52-55). ZUCKERMAN even admitted that it would
take more than $200,000 to jog his memory or get his attention, specifically
stating, in response to such an amount of money, “that sounds good” (DZ
56). Despite his drunk driving ZUCKERMAN denied he was at fault in the
car crash (DZ 60). ZUCKERMAN was asked “So you will not admit you
were at fault?” and he answered “no” (DZ 102). ZUCKERMAN was asked
“do you think you deserve any kind of punishment for what you did?” and
he responded “No, I don't” (DZ 72). ZUCKERMAN was asked, by counsel
for the Plaintiff, “if my client was sitting right here and you had an
2
opportunity to tell her anything you wanted, what would you say?” and he
responded “thanks for hiring you” (DZ 72).
ZUCKERMAN’s flippant answers demonstrate a contumacious
disregard for having caused STACEY ROBINSON personal injury. This is
especially so considering that he has been repeatedly arrested as a DUI
offender, but so far has successfully avoided conviction and still has his
Florida driver’s license (DZ 19-20, 87). Moreover, ZUCKERMAN admits to
smoking marijuana (DZ 95) and to having marijuana butts or “roaches” in
the ash tray of his car when he was last arrested in 1997 for DUI (DZ 20).
With “substantial misgivings” the 4th District Court of Appeal
followed and applied Arab Termite & Pest Control of Florida v. Jenkins,
409 So.2d 1039 (Fla. 1982) limiting the punitive damage award to what
ZUCKERMAN could afford. In its opinion, the appellate court suggested
that, “while there may be some reason to apply the rule against economic
castigation in an individual case, it makes no sense to do so in this one.”
Zuckerman, Supra at 1382. That court noted the “obvious problem of
financial truth seeking” from a defendant faced with a potential punitive
damages award, cited this particular defendant’s admission that an award of
punitive damages would have to exceed $200,000 “to get his attention,”
3
and cited the Florida legislature’s unique statutory treatment of DUI cases
for purposes of awards of punitive damages. Id 1382-1383. Of further
importance to the Fourth District was the federal bankruptcy law’s
treatment of these types of punitive damages, as well as the lack of caps on
criminal fines for DUI. Id. at 1383.
Although the Fourth District felt bound to follow this Court’s
precedent in Arab Termite, the appellate court’s concerns can now be
legitimately addressed by this Court in response to the certified question.
Arab Termite’s rigid rule of limitation needs to be modified in cases
involving injury or death at the hands of drunk drivers.
THE ROBINSONS timely invoked the jurisdiction of this court and
this court ordered the parties to file their briefs on the merits but postponed
its decision on jurisdiction.
This court now has the opportunity to elaborate further on the
limitations imposed under Arab Termite, as applied to drunk drivers like
ZUCKERMAN.
4
SUMMARY OF ARGUMENT
Much progress has been made against drunk driving since this court
announced 28 years ago that intoxication while driving was a sufficient
predicate to allow punitive damages to be assessed by a jury as a matter of
sound public policy. Undoubtedly this public policy has saved lives. However,
there remains a hard core of recidivist drunk drivers who are not persuaded
to stop because they have little to fear.
The concept of “affordable punitive damages” will not work against
these drunk drivers. If this state’s public policy against drunk driving is to
work, this court must allow civil juries to consider imposing harsher civil
sanctions for these persons, and should not allow a drunk driver to forego
further responsibility due to a perceived present lack of funds.
These harsher sanctions are still tempered by existing law that the
amount of the punitive damage award must be proportionate to the amount
of compensatory damages as well as to the degree of malice or outrage in
the defendant’s conduct, and that Constitutional due process guidelines must
be met. As here, where that conduct and lack of remorse is especially
egregious, and where the punitive damage amount was roughly equal to the
compensatory amount, the jury’s award should remain undisturbed.
5
Cases involving a drunk driver are afforded special considerations
under both Florida and federal mandate. In Florida, the measure of
culpability and proof necessary for the imposition of punitive damages
against the offender is treated differently by statute than that for other civil
wrongs. Moreover, such a judgment is not dischargeable in bankruptcy
under federal law, nor is the offender’s net worth considered for purposes of
criminal fines.
Since treble damages are allowed for certain statutory actions such as
civil theft actions without considering net worth, an exception to the rigid
application of a limit tied solely to the defendant’s ability to pay in these
circumstances is eminently reasonable.
The juries should also be allowed the discretion to disbelieve self-
serving financial information placed before them by persons who have either
possibly feigned or self-inflicted their own poverty. Should the defendant’s
financial position change in the future, the defendant’s social responsibility
should continue as well. A punitive damages award’s dual purposes of
punishment and deterrence will be furthered by recognizing a limited drunk
driver exception to the Rule in Arab Termite v. Jenkins.
6
ARGUMENT
FLORIDA PUBLIC POLICY STRONGLY SUPPORTS
RECOGNIZING A DRUNK DRIVING EXCEPTION TO
THE RULE CREATED IN ARAB TERMITE V. JENKINS
Much has changed in the last twenty-three years since Candy Lightner
first organized a small group of mothers victimized by drunk
drivers into Mothers Against Drunk Driving (MADD). In 1993 fatal accident
reporting system statistics revealed that alcohol related traffic deaths
dropped to a thirty (30) year low. The National Highway Traffic Safety
Administration (NHTSA) credited MADD for this decrease, along with
sanctions of tougher laws against drunk driving. See Partners in Progress:
National Impaired Driving Goals And Strategies for 2005, February 21-22,
1995.
Although tougher sanctions and increased public awareness have
proven a general deterrent to drunk driving, unfortunately, current
sanctions have had little impact on the repeat offender and chronic impaired
driver. The 2001 statistics from NHTSA show alcohol was involved in 41
percent of fatal crashes and 7 percent of all crashes. DOT
7
HS 809 470. The same NHTSA report shows that fatally-injured drivers
with high blood alcohol levels were ten (10) times more likely to have had a
prior DUI conviction.
Effective sanctions are needed to address this very small but most
dangerous segment of the drunk driving population. Criminal and civil
sanctions must be combined as part of the deterrent. A perception of “severe
sanctions” must be instilled in these offenders. The concept of “affordable
punitive damages” will not work on these types of individuals. The vast
majority of the public does not drive drunk. However, this tiny minority of
hard core drunk drivers is holding the rest of the law abiding citizens
hostage for fear of their outrageous misconduct. A recent gallup poll survey
conducted for NHTSA shows that ninety-seven percent of
Americans feel drunk driving is a direct threat to their children and their
own personal safety. Traffic Tech, No. 280 June 2003.
A. IMPAIRED DRIVERS MUST BE HELD ACCOUNTABLE FOR
THEIR CONDUCT
In 1976 this court addressed whether a jury should be allowed to
consider an award of punitive damages where negligence is coupled with
intoxication. See Ingram v. Pettit, 340 So.2d 922 (Fla. 1976). In discussing
the level of culpability to be considered by the courts in awarding punitive
8
damages, the Ingram court noted:
Our guide is not to be found in the grammar, but rather in the
policy of the state in regard to highway accidents. From that
perspective, we see that the courts and the Legislature have
evolved the notion that drunk drivers menace the public safety
and are to be discouraged by punishment.
Id. at 923. As explained by Ingram, an intoxicated person “is, by
definition, incapable of exercising vigilance and caution”, and the Florida
legislature “has enacted progressively more harsh criminal laws directed at
drunkenness” Id. at 925. Also cited were the deplorable statistics from the
Florida Department of Highway Safety and Motor Vehicles (DHSMV) of the
carnage caused by drunk drivers. Id. at 924.
Ultimately, Ingram held that “juries may award punitive damages
where voluntary intoxication is involved in an automobile accident in Florida
without regard to external proof of carelessness or abnormal
driving, provided always the traditional elements for punitive liability are
proved, including proximate causation and an underlying award of
compensatory damages.” Id. This public policy decision has undoubtedly
saved lives and reduced injuries.
In 1990 the federal government specifically singled out drunk drivers
as unworthy of bankruptcy discharge due to the menace they constitute.
9
See 11 U.S.C. §523(a)(9)(2002). It was the intent of The United States
Congress that drunk drivers not escape the consequences for their actions.
Stackhouse v. Hudson, 859 F. 2nd 1418 (9th Cir. 1988)2. Courts have found
that judgements against drunk drivers are nondischargeable upon a mere
showing that the debtor was driving while intoxicated without showing that
the intoxication was the principal or sole cause of the accident. State Farm
Mut. Auto. Ins. Co. v. Kupinsky, 133 B.R. 993 (S.D. Ill. 1991). Also see
Kerpely v. State Auto. Ins. Co., 144 B.R. 66 (N.D. Ohio 1992)(evidence of
unlawful blood alcohol evidence alone is sufficient to establish exemption
from discharge in bankruptcy).
As noted in the Fourth District’s opinion below, criminal punishment
2 Judgments against drunk drivers are exempt from discharge in
bankruptcy both as to compensatory damages and punitive
damages. Morales v. Adams, 761 F. 2d 1422 (9th Cir. 1985).
Our national public policy recognizes the need to set apart
drunk drivers from all other types of bankrupt tortfeasors.
can be imposed beyond a defendant’s ability to pay. See Zuckerman at 1382.
Moreover, Florida law grants no limitation based on the ability to pay where
compensatory damages are involved. In fact, the general rule in
Florida is that during trial no reference should be made to the wealth or
poverty of a party, nor should the financial status of one party be
10
contrasted with the other’s. Seaboard A.L. Ry. v. Smith, 53 Fla. 375, 43
So.2d 235 (Fla. 1907); Battemento v. Dove Foundation, Inc., 593 So.2d 234,
241 (Fla. 5th DCA 1991). Also see Counsel’s Appeal in Civil Case to Wealth
or Poverty of Litigants as Grounds for Mistrial, New Trial or Reversal, 32
ALR 2d 9 §2 at 17 (1956). It is only when considering the amount of punitive
damages that a defendant’s net worth can be properly considered. Jones v.
Greeley, 6 So. 448 (Fla. 1889). However, the wealth or poverty goes only to
the amount of the punitive damages. Rinaldi v. Aaron, 314 So.2d 762 (Fla.
1975). A plaintiff is not required to show any ability to pay in order to obtain
an award of punitive damages based on drunk driving. Ricci v. Thompson,
548 So.2d 1154 (Fla. 2d DCA 1989).
Recognizing that drunk drivers continue to menace the motoring
public, the Florida legislature over the years has continued to refine our
laws against drunk driving. Effective October 1, 1986, the offense of DWI
manslaughter was amended and renumbered so that it is now more
properly called DUI manslaughter3. §316.1931(2), Fla. Stat. was repealed by
Laws of Florida Ch. 86-296, §13 (eff. Oct. 1, 1986) and the manslaughter
11
statute was renumbered §316.193(3)(a)-(c)(3), Fla. Stat. Also “impairment”
has been substituted for the term “intoxication.” Currently a jury’s finding
of a blood or breath level of alcohol of .08 is sufficient to support a DUI
manslaughter conviction. Standard Jury Instructions-Criminal Cases No.
92-1, 603 So.2d 1175 (Fla. 1992), as last amended by 723 So.2d 123 (Fla.
1998). Yet the outdated term “intoxication” is the Ingram civil standard.
The Florida legislature on the civil side has similarly singled out
drunk drivers as uniquely qualified for punitive damages by exempting
accident victims from the clear and convincing standard of proof now
required in all other types of punitive damages actions. See §768.736, Fla.
Stat. Additionally, if a drunk driver is found more than 50 percent
3 In reviewing the evolution of the DUI manslaughter statute, this
court in State v. Van Hubbard, 751 So.2d 552 (Fla. 1999) cited
the deterrence policy of Ingram v. Pettit, Supra. and called the
drunk driving problem “real and pernicious” at pp. 556-557.
responsible for causing an accident, this is a complete defense to any award
of damages in favor of the drunk driver for any injuries he or she sustained.
See §768.36, Fla Stat. So, both the United States Congress and the Florida
Legislature have recognized that drunk driving cases require
individualized treatment.
However, despite the legislature’s continued efforts to strengthen both
criminal and civil laws against drunk driving, this court has not
revisited the issue of punitive damages awards against drunk drivers since
12
the Ingram case almost 28 years ago 4. This Court now has an opportunity to
do that by answering the certified question.
B. THE ECONOMIC IMPACT ON THE DEFENDANT NEED NOT
BE A CONSIDERATION IN ASSESSING THE AMOUNT OF
PUNITIVE DAMAGES IN CASES INVOLVING DRUNK DRIVING
The purpose of punitive damages is Florida is to punish the wrongdoer
and to act as a deterrent to others. See, e.g., Celotex Corp. v. Pickett, 490
So.2d 35 (Fla. 1986); Winn & Lovett Grocery Co. v. Archer,
4 However, this court cited the public policy of deterrence
expressed in Ingram v. Pettit, Supra. when interpreting criminal
statutes imposing sanctions for the repeat DUI offender. See
State v. Finelli, 780 So.2d 31 (Fla. 2001).
171 So.2d 214 (Fla. 1936).
Exemplary or punitive damages are assessable dependent on the
circumstances showing moral turpitude or atrocity in the defendant’s
conduct in causing an injury that is wanton and malicious or gross and
outrageous to such an extent that the measured compensation of the Plaintiff
should have an additional amount added thereto as “smart money” against
the defendant, by way of punishment or example as a deterrent to others
inclined to commit similar wrongs. They are peculiarly left to the discretion
of the jury as the degree of punishment to be inflicted must
always be dependent on the circumstances of each case, as well as upon the
13
demonstrated degree of malice, wantonness, oppression or outrage found by
the jury from the evidence. Id. at 221-22.
Arab Termite & Pest Control of Florida v. Jenkins, 409 So.2d 1039
(Fla. 1982), explained that a trial court may not substitute its judgment for
that of the jury concerning the issue of damages, and may order remittitur
only where the verdict is found excessive, or where the jury was improperly
influenced by matters outside the record. According to Arab Termite,
excessiveness may be shown where “the manifest weight of the evidence
shows that the amount of punitive assessed is out of all reasonable
proportion to the malice, outrage, or wantonness of the tortious conduct”,
or the award “is out of proportion to the defendant’s net worth.” Id. at 1043.
On the issue of the economic consequences of punitive damages, Arab
Termite states that “Punitive damages should be painful enough to provide
some retribution and deterrence, but should not be allowed to destroy the
defendant.” Id. See also Joab, Inc. v. Thrall, 245 So.2d 291, 293 (Fla. 3d
DCA 1971) which states that punitive damages “properly punish each
wrongdoer by exacting from his pocketbook a sum of money which,
according to his financial ability, will hurt, but not bankrupt.”
Neither Arab Termite nor Joab, Inc. dealt with impaired/drunk
14
drivers. The theory that economic castigation is inappropriate may work
well and fulfill society’s goals with companies that are profit driven and
respond to a stinging award of some portion of their net worth. Likewise
some businessmen who wish to continue to do business may take heed of
such awards. However, such awards will not necessarily get the attention of
hard core drunk drivers who have no ambition but intoxication, or who
have plainly indicated that a lower award will have no effect. In such cases,
allowing a jury to award punitive damages in an amount roughly equivalent
to compensatory damages, and where the conduct was and continues to be
extremely reprehensible, makes more sense than an artificial bar which fixes
the ability to pay as an inflexible ceiling.
Unfortunately, an inflexible rule which mandates that punitive
damages are tied to the current perceived net worth of the defendant defeats
the public policy established and refined by Ingram v. Pettit, Supra. At a
minimum, the award should be large enough to get the attention of the
drunk driver and others of like mentality. The award should be able to
punish and deter.
Applying an inflexible rule of limitation in such circumstances does
not advance these goals and purposes. The innocent victim and society as a
15
whole will permanently suffer the consequences of the penniless drunk’s
choice to drive drunk and yet obtain little vindication for the fact that drunk
driving was involved. Under no circumstances should the victim be caused to
suffer more than the drunk. Why should the drunk get
permanent relief from his obligation to pay based on his present (and
perhaps feigned or self-inflicted) inability to pay? What if this drunk driver
wins the lottery or inherits a fortune in the future? What if this drunk driver
is already earning a comfortable living completely “off the books” which
may not be immediately discoverable?
In drunk driving cases such as this one, trial court judges should
be free to allow the jury’s decision to stand, notwithstanding the general rule
against economic castigation. On a motion for remittitur by an
allegedly impoverished drunk driver, trial court judges should be allowed to
consider other relevant factors, including the enormity of the wrongful
misconduct, any lack of remorse, any lack of efforts at gainful employment,
and the amount of punitive damages needed to get the attention of the
particular drunk driver and others of similar mindset. The rule against
economic castigation has its place in Florida jurisprudence, but need not be
applied without exception in every case involving an impaired driver.
16
Trial judges should be allowed to determine that the additional factors
of retribution and deterrence take precedence in a particular case
over the drunk driver’s pleas of poverty. These social policies in the context
of drunk driving are more important than the individual tortfeasor’s
financial condition. Presently, the law actually encourages drunk drivers to
remain penniless to retain the “pauper immunity” from punitive damages.
The Fourth District Court of Appeal below has encouraged this court
to create a reasonable and balanced approach to solving this problem
created by a rigid adherence to the rule against economic castigation
where drunk driving is involved. This Court now has the ability and
authority to create an exception, or retooling, of the rule against economic
castigation in the case of an impaired driver.
Although Florida’s stated purpose for the imposition of punitive
damages is punishment and deterrence, one cannot deny the fact that the
payment of the punitive damages to an accident victim will allow some
additional recompense for having been subjected to the drunken driver’s
egregious misconduct. As stated in Smith v. Bagwell, 19 Fla. 117, 121 (Fla.
1882), punitive damages:
blend together the interests of society and of the aggrieved individual,
and are not only a recompense to the sufferer but a punishment to the
offender and an example to the community.
17
Aggravation of the original wrong results in a greater loss to both the
victim and to society. Punitive damages awarded serve the dual function of
deterring future tortfeasors and of mitigating the harm to the injured
Plaintiff. Although the purpose of punitive damages is to punish and deter,
the injured party receives the benefit of such payment. From the innocent
victim's standpoint, punitive damages are additional compensation for the
egregious misconduct inflicted by the drunk driver.
In drunk driving cases such as this one, with aggravating factors, and
where the punitive award is proportional to the compensatory award,
remitter should not be required. Such unremitted punitive damages verdicts
would reinforce the message that financial punishment is a consequence of
drunk driving. Florida law already imposes mandatory treble damages in
civil action for those who steal. See §772.11, Fla. Stat. and Aagaard-
Juergensen, Inc. v. Lettellier, 579 So.2d 404 (Fla. 5th DCA 1991). If it is
reasonable to require treble damages of a person who steals (regardless of
the defendant’s wealth or lack of it), why should it be different for a drunk
driver who kills or maims?
At least one state’s highest court has upheld a large punitive damages
award against a drunk driver on the basis of the dual purposes of
18
punishment and deterrence. See Warhurst v. White, 310 Ark. 546, 838 S.W.
2d 350 (Ark. 1992). The Warhurst court upheld the punitive damage award
of $500,000 against a drunk driver who had a .13 blood alcohol level, even
though the drunk driver said she had nothing of value and depended on her
salary of $350 per week for living expenses. See Id. In upholding the award,
Warhurst noted that a defendant’s financial wealth is a proper element to be
considered in the determination of the amount of punitive damages, but also
noted that the testimony could have led the jury to
conclude that the defendant lacked any remorse. See id. at 352. Similarly,
this Court could allow the defendant’s financial condition to be a
consideration by the jury in assessing the amount of punitive damages, but
not necessarily a requirement for the trial judge to step in and order a
remitter if the award exceeded the defendant’s current net worth.
This court should support the public policy to discourage drunk
driving by recognizing a drunk driving exception to the rule announced in
Arab Termite, Supra.
19
CONCLUSION
The certified question by the 4th District Court of Appeal should be
answered in the affirmative. The economic castigation limitation on punitive
damages should not apply to cases involving impecunious drunk drivers.
Rather, the financial condition of the defendant should be one factor that
may be considered by the jury in reaching its assessment of the proper
amount of such damages to award. Trial court judges should be free from
the constraints of this restriction in such cases and afforded the opportunity
to affirm jury awards on punitive damages so long as they are proportional
to the compensatory damages. The trial court should be directed to reinstate
the full punitive damages judgment against ZUCKERMAN.
Respectfully submitted,
Diego C. Asencio, Esq.
Florida Bar #: 352942
Counsel for Petitioners
Diego C. Asencio, P.A.
636 U.S. Hwy. 1, Suite 115
North Palm Beach, Fl 33408
Tel: (561) 844-0840
Fax: (561) 844-0855
20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been served by
U.S. Mail and fax this day of , 200 To: Randy Brennan, Esq.,
Hendrix and Brennan, 1443 20th Street, Suite F, Vero Beach, FL 32961.
CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT
I HEREBY CERTIFY this brief was typed in 14-point Times New
Roman font.
DIEGO C. ASENCIO, ESQ.
21
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