PETITIONERS REPLY 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 REPLY 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) ARGUMENT IN RESPONSE AND REBUTTAL ZUCKERMAN argues that the law of affordable punitive damages should continue as it has for the past twenty (20) years without any exception for hardcore unremorseful hit-and-run drunk drivers such as himself. He argues that otherwise he will be financially destroyed. However, financial destruction is not an entirely accurate description. While the large award may severely punish ZUCKERMAN, he will still enjoy the protection afforded to judgment debtors under Florida law. As explained by Judge Farmer in the decision below, Zuckerman v. Robinson, 846 So.2d 1257 (Fla. 4th DCA 2003), at page 1261: Under Florida law for the enforcement of judgments, the judgment creditor can levy on any assets of defendant but only to the extent that they are not exempt from such levy. For example, a fixed percentage of the debtor s earned income from employment is protected from garnishment; the debtor s homestead is protected from levy and execution; and the debtor may exempt personal property up to $1,000 in value. Thus, the creditor may not take all the debtor has. It is quite true that ZUCKERMAN will face serious consequences for his choice to drive drunk for many years to come. However, such serious

3 consequences are justly deserved both because of his hit-and-run drunk driving and because of his lack of remorse. ZUCKERMAN himself testified that at least $200,000 would be needed to get his attention. 1 Not creating an exception for drunk drivers like ZUCKERMAN would send a clear message to ZUCKERMAN (and others like him) that they have little to fear by driving drunk. Allowing a limiting rule without any exception guarantees meager punitive damage awards based solely on the drunk driver s self-serving testimony of present inability to pay. Any allegedly destitute drunk driver could later work hard enough to pay off a meager award in a relatively short period of time. This would create a cruel unjust perversion of the law where the victims of a drunk driving crash alone would face a lifetime of punishment paid by their pain and suffering. Even ZUCKERMAN cannot deny that he deserves to be severely punished. However, he inconsistently argues that he cannot be punished beyond what he says he presently has in assets and income. At the trial court level ZUCKERMAN asked the jury to believe that a healthy young man

4 could only earn an annual income of $2, Is that credible? Why wouldn t the jury have the right to utterly reject such testimony? Couldn t the jury find that ZUCKERMAN had a much greater ability to earn? After all, this was the very same man who claimed that he was not at fault in the 2 DUI crash. Again, as discussed by Judge Farmer, [i]n none of the cases is it explained how this limitation is supposed to play out. Supra at Moreover, why should the testimony of ZUCKERMAN dictate the maximum limit of a reasonable range within which the jury may properly operate when he specifically admitted that any punitive damages would have to exceed $200,000" to be effective. Supra at Couldn t a trial court judge simply leave this issue of credibility for a jury to decide? Is our system of justice to be turned on its head by allowing impecunious drunk drivers to dictate how much they can afford in such punishment? Under a rule without exception every drunk driver will claim to be broke. What about the punishing effects of the DUI crash upon the victims of drunk 1 ZUCKERMAN was thirty-four (34) at the time of the DUI crash and testified that he worked as a glass man who installed mirrors for a living. DZ at page 5.

5 drivers? Can our system of justice afford to allow drunk drivers to render punitive damage awards impotent solely with self-serving pleas of poverty? At some point a rigidly applied limitation defeats the very purpose of punitive damages. A balance must be struck between making sure that punitive damage awards truly punish and deter and making sure that juries give proper consideration to any alleged inability to pay. Affordable punitive damages will not provide any deterrence in the context of hardcore drunk drivers. The reality is that affordable punitive 3 damages do not hurt or deter drunk drivers like ZUCKERMAN. ZUCKERMAN will only be encouraged to drive drunk again by a meager award. His next victim may be killed rather than injured. In the context of hardcore drunk drivers, society cannot afford half measures. Strong medicine is needed to wake up those who are unwilling to take heed. ZUCKERMAN cites a number of decisions limiting punitive damages awards against business entities including Liggett Group Inc. V. Engle, 28 Fla. L. Weekly D1219 (Fla. 3d DCA Sept. 22, 2003). However, there is a world of difference between a business which can be expected to respond to an award representing a percentage of its net worth and hardcore drunk

6 drivers who respond to nothing less than the very severest of punishment. The only Florida cases cited by ZUCKERMAN applying the economic castigation limit to drunk drivers are Evering v. Smithwick, 526 So.2d 185 (Fla. 3d DCA 1988) and Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA 2001). Smithwick acknowledges the general rule of limitation. However, it did not involve the same issues discussed herein. In Smithwick an award of $85,000 in punitive damages was sustainable partly based on the fact that the drunk driver did not introduce sufficient evidence to support the limitation. Specifically, the drunk driver did not introduce any evidence of 4 his personal net worth. Additionally, the award in Smithwick was against a physician. Presumably a physician would respond to those punitive damages by cleaning up his act so that he could continue to practice. Nothing in the Smithwick opinion gives any indication that the physician was a hardcore drunk driver nor that he was completely without remorse. Wransky is also distinguishable. It addressed whether a drunk driver s bad faith chose of action was part of the drunk driver s assets 2. 2 Wransky also involved an astronomical $15 million punitive damage award (remitted to $7.5 million) for a DUI driver with less assets and a similar earning capacity to ZUCKERMAN.

7 Also, unlike the present case, the trial court in Wransky failed to give a special jury instruction requested by the defense. In this case the trial court properly instructed the jury pursuant to PD 1 (2nd stage) that it could properly consider the defendant s financial resources and any other circumstances which may affect the amount of punitive damages. ZUCKERMAN never requested any special jury instruction as in Wransky. No issue of the failure to give any jury instruction was raised below. ZUCKERMAN argues that the change in bankruptcy law does not support allowing his financial destruction citing Stroud v. Lints, 790 N.E. 2d 440 (Ind. 2003). However, even Stroud recognizes that the ability to pay 5 is but one factor which sometimes justifies upholding high awards when the defendant s resources render a lesser amount inconsequential. Id. at 447. Here the punitive damages award would be rendered inconsequential by a rigid application of a limit on economic castigation. Moreover, ZUCKERMAN is not the teenager Stroud describes as completely without resources. He is a healthy young man who has the ability to earn if properly encouraged. Payment of an award of $250, is not insurmountable. It is hardly the life sentence without the possibility of parole

8 as he argues. On the other hand, STACEY ROBINSON suffered a permanent injury in the DUI crash. Thus, she will permanently suffer the effects of that DUI crash for life. ZUCKERMAN argues that it would be patently wrong to treat him and other drunk drivers under a different standard than those who commit other heinous acts. However, he has utterly failed to address the fact that state and federal law presently singles out drunk drivers as worthy of special treatment. Are these laws patently unfair? Is it patently unfair to require someone who steals to pay treble damages? If a thief should pay treble damages, why should a hardcore drunk driver not have to pay punitive damages equal to the compensatory damages? In Florida drunk 6 drivers only account for a very small percentage of all car crashes. Apparently everyone else is getting the message. Is it not reasonable to give special treatment to those who have failed to heed a normal warning? Finally, ZUCKERMAN raises due process issues for the very first time. No such due process issues were ever raised before the trial court nor before the 4th District Court of Appeals. However, now ZUCKERMAN would have this court believe that he read and understood the holding in

9 Arab Termite & Pest Control of Florida v. Jenkins, 409 So.2d 1039 (Fla. 1982). Yet ZUCKERMAN thumbs his nose at the law while arguing for an unjust application of the limit on economic castigation regardless of whether this will punish and deter him (or other hardcore drunk drivers). It has long been Florida law that punitive damages must be large enough to punish and deter. Thus, ZUCKERMAN was duly placed on notice that any punitive damages award could reach $250, if that is what it would take to punish and deter him. Since ZUCKERMAN himself admitted in his deposition testimony that this is how much it would take to punish and deter him, he should not now be permitted to claim any lack of notice. Moreover, the punitive damage award herein does not violate due process. The facts of this case are nothing like those found in the cases of 7 BMW of North America, Inc. v. Gore, 116 S.Ct (U.S. 1996), St. John v. Coisman, 799 So.2d 1110 (Fla. 5th DCA 2001) or State Farm v. Campbell, 123 S.Ct (U.S. 2003) cited by ZUCKERMAN in support of his due process arguments. In Gore the United States Supreme Court vacated an award of punitive damages which was 90 times the amount of compensatory damages. Coisman involved an award of $333,000 in punitive

10 damages where the Plaintiff suffered no physical injury and was already compensated with over $80,000 in damages for pain, suffering and mental anguish for spending one night in jail. The Campbell jury awarded over $100 million in a bad faith case which sprang from an underlying $20,000 Med Pay dispute. All of the awards in the above cases were completely out of proportion either when the punitive award was compared to the compensatory damages or when the punitive award was compared to the gravity of the wrongdoing. ZUCKERMAN has failed to demonstrate any proportionality issue under the particular facts of this case. The compensatory and punitive damage awards were equal. The reprehensibility of ZUCKERMAN s conduct both in his hit-and-run drunk driving and his complete lack of remorse merited the severest of punishment. ZUCKERMAN s due process rights would not be violated in the least 8 by applying a limited exception that will preserve and further what has always been the law in Florida. The overriding principle should be that a punitive award must punish and deter. When a punitive damage award fails to punish and deter, the policy behind punitive damages fails. The cornerstone of punitive damages is punishment and deterrence. This court

11 should not discard that cornerstone by making the one factor of financial ability to pay of paramount importance. Any mistaken perception by drunk drivers that they will get lenient treatment because of their lack of funds cannot justify this court withholding effective punishment. First and foremost the court must allow juries to inflict the amount of punishment which is actually required to fulfil the very purpose of punitive damages. To hold ZUCKERMAN fully responsible based upon his outrageous misconduct and his cavalier attitude requires nothing more than a reasonable and well balanced exception which would do no violence to existing law. Defense counsel who read about this narrow exception in the future may advise hardcore drunk drivers to show more respect for their victims and to at least feign some remorse for their own sake. If this court carves out a narrow exception for this case, justice will be served without causing even so much as a ripple in the law of punitive damages. 9 Respectfully submitted, Diego C. Asencio, Esq. Florida Bar #:

12 Counsel for Petitioners Diego C. Asencio, P.A. 636 U.S. Hwy. 1, Suite 115 North Palm Beach, Fl Tel: (561) Fax: (561) 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 and Nancy L. Hoffmann, Esq., 440 E. Sample Road, Suite 200, Pompano 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. 10