PETITIONERS INITIAL BRIEF ON THE MERITS

Transcription

1 IN THE FLORIDA SUPREME COURT CASE NO. SC Lower Tribunal No.: 4D STACEY and ROBERT ROBINSON, Petitioners, v. SIDENY ALAN ZUCKERMAN, Respondent. / PETITIONERS INITIAL BRIEF ON THE MERITS Diego C. Asencio, Esq. Florida Bar #: Counsel for Petitioners Diego C. Asencio, P.A. 636 U.S. Hwy. 1, Suite 115

2 North Palm Beach, Fl Tel: (561) Fax: (561) TABLE OF CONTENTS PAGE(S) I TABLE OF CONTENTS... i II TABLE OF CITATIONS... ii-iv III STATEMENT OF THE CASE AND FACTS IV SUMMARY OF ARGUMENT V ARGUMENT FLORIDA PUBLIC POLICY STRONGLY SUPPORTS RECOGNIZING A DRUNK DRIVING EXCEPTION TO THE RULE CREATED IN ARAB TERMITE V. JENKINS VI. CONCLUSION... 20

3 CASES i TABLE OF CITATIONS PAGE(S) Aagaard-Juergensen, Inc. v. Lettellier, 579 So.2d 404 (Fla. 5th DCA 1991) 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) Celotex Corp. v. Pickett, 490 So.2d 35 (Fla. 1986) Ingram v. Petit, 340 So.2d 922 (Fla. 1976)... 8,9,13,15 Jones v. Greeley, 6 So. 448 (Fla. 1889) Joab, Inc. v. Thrall, 245 So.2d 291 (Fla. 3d DCA 1971) Kerpely v. State Auto. Ins. Co., 144 B.R. 66 (N.D. Ohio 1992) Morales v. Adams, 761 F. 2d 1422 (9th Cir. 1985)... 10

4 Ricci v. Thompson, 548 So.2d 1154 (Fla. 2d DCA 1989) Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975) Seaboard A.L. Ry. v. Smith, 53 Fla. 375, 43 So.2d 235 (Fla. 1907) ii CASES (CONT D) PAGE(S) Smith v. Bagwell, 19 Fla. 117 (Fla. 1882) Stackhouse v. Hudson, 859 F. 2nd 1418 (9th Cir. 1988) State v. Van Hubbard, 751 So.2d 552 (Fla. 1999) State v. Finelli, 780 So.2d 31 (Fla. 2001) State Farm Mut. Auto. Ins. Co. v. Kupinsky, 133 B.R. 993 (S.D. Ill. 1991) Warhurst v. White, 310 Ark. 546, 838 S.W. 2d 350 (Ark. 1992) Winn & Lovett Grocery Co. v. Archer, 171 So.2d 214 (Fla. 1936) STATUTES (3)(a)-(c)(3), Fla. Stat... 12

5 (2), Fla. Stat Ch , 13, Laws of Florida , Fla. Stat , Fla. Stat , Fla. Stat U.S.C. 523(a)(9) 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) Partners in Progress: National Impaired Driving Goals And Strategies for 2005, February 21-22, Standard Jury Instructions-Criminal Cases No. 92-1, 723 So.2d 123 (Fla. 1998) DOT HS Traffic Tech, No. 280 June

6 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. 4D

7 (R2 ) -- Record on Appeal Case No. 4D (R3 ) -- Record on Appeal Case No. 4D (R4 ) -- Record on Appeal Case No. 4D (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 (a)(2)(A)(v).

8 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 award 1. 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, in compensatory damages (R ) and of $250, in punitive damages on May 31, 2001 (R1 603).

9 completely without remorse. The jury received the testimony of ZUCKERMAN via his video-taped deposition of November 12, 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

10 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 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 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.

11 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

12 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

13 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 selfserving 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

14 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, 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

15 HS 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 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 7

16 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 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. 8 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

17 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.

18 can be imposed beyond a defendant s ability to pay. See Zuckerman at 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

19 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 manslaughter (2), Fla. Stat. was repealed by Laws of Florida Ch , 13 (eff. Oct. 1, 1986) and the manslaughter 11 statute was renumbered (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 , 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

20 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 , 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 the Ingram case almost 28 years ago 4. This Court now has an opportunity to 12 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).

21 171 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 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

22 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 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,

23 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

24 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

25 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

26 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 , 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.

27 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

28 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 #: Counsel for Petitioners Diego C. Asencio, P.A. 636 U.S. Hwy. 1, Suite 115 North Palm Beach, Fl Tel: (561) Fax: (561)

29 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, th Street, Suite F, Vero Beach, FL CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I HEREBY CERTIFY this brief was typed in 14-point Times New Roman font. DIEGO C. ASENCIO, ESQ.

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