Astute personal injury lawyers always look for ways to maximize their client’s financial recovery. Establishing aggravating factors against the at-fault party is one of the main ways of doing this. In motor vehicle accident cases, there is no better opportunity for scoring points against the liable party than connecting alcohol use to the accident.
The involvement of alcohol can lead to a claim for punitive damages. The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.
A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).
768.72 says this about what must be shown to establish liability:
(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
Florida recognizes the recovery of punitive damages in automobile accident cases involving voluntary intoxication. Ingram v. Pettit, 340 So. 2d 922 (Fla. 1976). However, the voluntary intoxication must reach the level required by Florida Statute Section 316.193 to make a criminal conviction under. Ingram at 924. In pertinent part, 316.193 provides:
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Evidence that can be presented to the civil trial judge in the motion to amend to claim punitive damages includes:
- The Defendant’s plea of guilty to the DUI charge;
- Proof of the criminal court conviction for DUI;
- Results of the blood-alcohol and/or breath-alcohol testing;
- Urine testing results;
- Eyewitness testimony, especially of the arresting officer, as to the Defendant’s conduct and condition. For example, conduct in the bar, including the number of drinks consumed; erractic driving; bloodshot glassy eyes; results of field sobriety tests; the odor of alcohol
Statute 316.1934(2)(a)-(c) is a key statute in establishing the standards of intentional misconduct and gross negligence defined in 768.72(2)(a) & (b). This statute deals with the presumption of impairment by a defendant driver. A blood or breath alcohol result of .08 or above is prima facie evidence that the person was under the influence of alcoholic beverages to the extent his or her faculties were impaired. This evidence should be enough for the civil court judge to allow a claim for punitive damages. If the results are between .05 and .08, there is no presumption of impairment, however, the results can be used in combination with the eyewitness testimony to establish that the person’s normal faculties were impaired. A reading of .05 or below creates the presumption that the person’s normal faculties were not impaired.
Other important Florida statutes include 322.2616(2)(b)1b and 322.61. Pursuant to 322.2616, the drivers license of a person under the age of 21 with a blood or breath reading of .02 or above will be suspended, while according to 322.61, the license of the driver of a commercial vehicle with a reading of .04 or above will be suspended.
Where underinsured motorist insurance is available, it makes strategic sense to deal with the UM case before resolving the case against the drunk driver. With the drunk tortfeasor in the case, the UM carrier will be motivated to avoid being a party defendant at trial with the drunk driver. Although punitive damages are likely to be excluded by the UM policy, the fear for the carrier is that the jury’s anger towards the drunk driver may result in a verdict for compensatory damages well in excess of the UM policy limits. Releasing the drunk tortfeasor first eliminates this threat. Once the drunk driver is released, the UM carrier will admit the drunk driver’s fault to make the evidence of intoxication irrelevant in a case against the UM carrier only.
Another advantage to settling with the UM carrier before releasing the tortfeasor is that the UM settlement is not offset from the damages caused by the tortfeasor. In other words, the drunk tortfeasor will remain liable for the full measure of damages caused by his or her negligence. For the Plaintiff to gain the full advantage of this scenario, he or she must obtain an assignment of the UM carriers subrogation rights or a waiver of those rights. See this blog, Florida Law: Maximize Recovery by Obtaining Assignment of Subrogation Rights *****************************************************
Contact our law firm toll-free at 866-785-GALE or by email to learn your rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.