BRIEF OF AMICUS CURIAE MOTHERS AGAINST DRUNK DRIVING ( MADD ) IN SUPPORT OF PETITIONERS

Transcription

1 STACEY ROBINSON and ) ROBERT ROBINSON, ) ) Petitioners, ) ) v. ) ) SIDNEY ALAN ZUCKERMAN, ) ) Respondent. ) ) IN THE SUPREME COURT OF FLORIDA CASE NO.: SC Discretionary Proceedings to Review a Decision by the Fourth District Court of Appeal, State of Florida BRIEF OF AMICUS CURIAE MOTHERS AGAINST DRUNK DRIVING ( MADD ) IN SUPPORT OF PETITIONERS NANCY LITTLE HOFFMANN, P.A. 440 East Sample Road Suite 200 Pompano Beach, Florida Counsel for Amicus Curiae Mothers Against Drunk Driving ( MADD )

2 TABLE OF CONTENTS Page TABLE OF CITATIONS... -ii- QUESTION PRESENTED...-iv- PREFACE... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT THE ECONOMIC CASTIGATION LIMITATION ON PUNITIVE DAMAGES SHOULD BE ELIMINATED ENTIRELY OR AT LEAST AMENDED IN CASES OF INJURY CAUSED BY DRIVING WHILE INTOXICATED CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE i-

3 TABLE OF CITATIONS Cases Page Arab Termite & Pest Control of Florida v. Jenkins, 409 So. 2d 1039 (Fla. 1982)...2, 3, 4, 7 Conley v. Boyle Drug Company, 570 So. 2d 275 (Fla. 1990)... 3 Flockhart v. Wyant, 467 N.W. 2d 473 (S.D. 1991)... 5 Ford v. Herman, 737 N.E. 2d 332 (Ill. App. 2000), appeal denied, 744 N.E. 2d 284 (Ill. 2001)... 6 Gates v. Foley, 247 So. 2d 40 (Fla. 1971)... 4 Ingram v. Pettit, 340 So. 2d 922 (Fla. 1976)... 2, 4 Insurance Company of North America v. Pasakarnis, 451 So. 2d 447 (Fla. 1984)... 3 Olson v. Walker, 781 P. 2d 1015 (Ariz. App. 1989)... 4 Warhurst v. White, 838 S.W. 2d 350 (Ark. 1992)... 5 White v. Sullins, 917 S.W. 2d 158 (Tex. App. 1996)... 5 Zuckerman v. Robinson, 846 So. 2d 1257 (Fla. 4th DCA 2003) ii-

4 TABLE OF CITATIONS (Continued) Other Page , Fla.Stats , Fla.Stats Dept. of Highway Safety and Motor Vehicles, Florida Traffic Crash Facts (2001), Table 27, available at 4 -iii-

5 QUESTION PRESENTED 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. -iv-

6 PREFACE This brief is submitted on behalf of MOTHERS AGAINST DRUNK DRIVING, a nationwide organization whose mission is to stop drunk driving, support the victims of this violent crime, and prevent underage drinking. Because MADD believes that the imposition of punitive damages against intoxicated drivers is a useful tool in reducing alcohol-impaired driving, it supports the position of the Petitioners in this proceeding. SUMMARY OF ARGUMENT The salutary purpose of imposing punitive damages on intoxicated drivers has been diminished by restricting such damages to those which such a driver can afford to pay. The need for punishing such drivers and deterring others from similar conduct far outweighs the financial burden on a defendant resulting from a punitive damages judgment, particularly where a jury has been presented with evidence of egregious conduct justifying imposition of a large monetary punishment. MADD respectfully urges this Court to recede from its prior restriction on the amount of punitive damages, and to allow Florida juries to impose harsh financial penalties against intoxicated drivers where warranted. -1-

7 ARGUMENT THE ECONOMIC CASTIGATION LIMITATION ON PUNITIVE DAMAGES SHOULD BE ELIMINATED ENTIRELY OR AT LEAST AMENDED IN CASES OF INJURY CAUSED BY DRIVING WHILE INTOXICATED. Because [d]riving in an intoxicated condition is an intentional act which creates its own risks to the public, this Court decided many years ago that such behavior may justify an award of punitive damages. Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976). In so doing, this Court determined that the potentiality of an adverse award of punitive damages would, along with criminal laws, discourage this reckless disregard for the public safety. Id. at 924. However, this Court s subsequent decision in Arab Termite & Pest Control of Florida v. Jenkins, 409 So. 2d 1039, 1043 (Fla. 1982) has, we believe, seriously eroded the effectiveness of punitive damages as a method of deterring such reckless behavior. By protecting the intoxicated driver from imposition of a punitive damage award that is beyond the driver s current financial ability to pay, the Court has afforded greater protection to the party least deserving of it and has eliminated much of the valuable deterrent effect that the imposition of punitive damages would otherwise provide. -2-

8 Since the development of the judicial and statutory law in Florida on this subject has been thoroughly outlined by the Fourth District Court of Appeal in its decision in this case, Zuckerman v. Robinson, 846 So. 2d 1257 (Fla. 4th DCA 2003), it is not necessary for MADD to reiterate that history. Suffice it to say, however, that the public policy of Florida would be served by relaxation of the economic castigation limitation enunciated by this Court in Arab Termite. By enacting section , Florida Statutes (2002), which excepts alcohol-impaired defendants from the punitive damages limitation created in section , Florida Statutes (2002), the Florida Legislature has expressed its policy to punish those who drive upon the Florida highways while intoxicated. As the Fourth District Court of Appeal has properly pointed out, since this Court has imposed the civil financial castigation limitation on the award of punitive damages generally, it is uniquely within this Court s power to amend or eliminate that rule where it determines that such a change is warranted. Zuckerman, 846 So. 2d at In the past, this Court has consistently recognized its continuing responsibility to overturn unsound precedent in order to ensure that the law remains both fair and realistic as society and technology change. Conley v. Boyle Drug Company, 570 So. 2d 275, 284 (Fla. 1990), quoting Insurance Company of -3-

9 North America v. Pasakarnis, 451 So. 2d 447, 451 (Fla. 1984) and Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971). It is apparent that more effective deterrents are needed the number of alcohol-related fatal accidents in Florida has increased from 570 in 1974, Ingram, 340 So. 2d at 924, n.9, to 1,000 in Eliminating the Arab Termite limit on punitive damages as applied to intoxicated drivers would serve the purpose of deterring drinking drivers by showing them the penalties that come with their actions. Other states have considered this issue in a number of cases. For example, in Olson v. Walker, 781 P. 2d 1015, 1021 (Ariz. App. 1989), the court affirmed a $100, punitive damage award, noting that the jury could have concluded that the defendant s conduct was so egregious that a large punitive damages award was necessary to punish him. The court stated: A high award also serves the public by deterring others from similar conduct, a concern of paramount importance, as the problem of intoxicated drivers has grown in recent years... Undeniably, it is a steep punishment not easily absorbed by [the defendant]. However, the purpose of punitive damages to punish the wrongdoer and deter others would be little furthered by an award easily paid by a defendant. 1 Dept. of Highway Safety and Motor Vehicles, Florida Traffic Crash Facts (2001), Table 27, available at -4-

10 Id. at The court further pointed out that the growing public concern and increasing deaths and injuries caused by intoxicated drivers justify an award which will hopefully deter others from similar conduct. Id. at In White v. Sullins, 917 S.W. 2d 158, 162 (Tex. App. 1996), the court rejected the argument of a highly intoxicated defendant that he would be unable to pay the punitive damage judgment. The court observed that while a defendant s financial ability was relevant in determining what amount of punitive damages would effectively punish the defendant,...penury does not diminish the offense. The court went on to hold that the defendant s ability to pay the judgment was outweighed by the enormity of his indifference and the public s need to stop drunk drivers. White, 917 S.W. at 162. Similarly, in Flockhart v. Wyant, 467 N.W. 2d 473 (S.D. 1991), the court affirmed a punitive damage award even though it was far in excess of the defendant s present ability to pay it, since her financial condition was but one factor to consider, where the defendant had a long history of involvement with the law concerning alcohol related offenses, and consciously chose to expose others to her reckless conduct on the highway. In Warhurst v. White, 838 S.W. 2d 350, 352 (Ark. 1992), the court affirmed a $500, punitive damage award against an intoxicated driver, rejecting her -5-

11 argument that she could not afford to pay it out of her $ per week salary. In doing so, the court noted testimony by the defendant from which the jury could easily infer and conclude that she lacked any remorse, claiming that she was totally innocent and without fault. Id. at 352. Although the defendant s financial wealth was a proper element to be considered, the court held that the dual purpose of punishing the defendant and deterring others from engaging in similar conduct justified affirmance of the punitive damage award. An Illinois court recently affirmed a six million dollar punitive damage award against a construction worker in Ford v. Herman, 737 N.E. 2d 332, 339 (Ill. App. 2000), appeal denied, 744 N.E. 2d 284 (Ill. 2001), holding that the size of the monetary award might finally deter [the defendant] from driving while intoxicated where our criminal courts have failed. Furthermore, the award should serve to deter other individuals from risking the lives of innocents by driving while intoxicated. Finally, the award adequately punishes this particular defendant for his actions leading up to and including this accident. Id. at The common thread running throughout these decisions is that a jury, which has considered all of the relevant factors in the case, should be able to decide the amount of punitive damages necessary and appropriate to punish a driver who has impaired the lives of others on the highway while driving intoxicated. If the jury -6-

12 finds the circumstances are sufficiently egregious to impose a severe financial penalty, notwithstanding the fact that such penalty would cause the defendant financial hardship for years to come, it should have the right to do so. In some cases, only a punishment of that magnitude would have the desired effect of focusing a defendant s attention on the undesirability of repeating such conduct in the future. CONCLUSION In its continued effort to stop alcohol-impaired driving and to prevent alcohol-related crash injuries and deaths, MADD respectfully urges this Court to recede from its decision in Arab Termite & Pest Control of Florida v. Jenkins, and to hold that its economic castigation limitation should not be applied to a punitive damage award against an intoxicated driver. Respectfully submitted, MOTHERS AGAINST DRUNK DRIVING, AMICUS CURIAE By Nancy Little Hoffmann, P.A. 440 East Sample Road Suite 200 Pompano Beach, Florida

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been served by U.S. Mail this 10th day of September, 2003, to: H. RANDAL BRENNAN, ESQUIRE, Hendrix and Brennan, P.A., th Street, Suite F, Vero Beach, Florida 32961, Counsel for Respondent; and DIEGO C. ASENCIO, ESQUIRE, Diego C. Asencio, P.A., 636 U.S. Highway 1, Suite 115, North Palm Beach, Florida 33408, Counsel for Petitioner. By Nancy Little Hoffmann Fla. Bar # CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing has been prepared using Times New Roman 14, in compliance with the font requirements set forth in rule 9.210(a)(2). By Nancy Little Hoffmann Fla. Bar #