PUNITIVE DAMAGES IN WISCONSIN
By Attorney Randall J. Andersen
June, 2014
By Attorney Randall J. Andersen
June, 2014
Disclaimer: The information contained on this page is not legal advice. The information provided on this website is for general informational purposes and is not necessarily updated to account for changes in the law. You should consult with an attorney for legal advice regarding your individual circumstances.
Most lawsuits are brought to recover damages to compensate the plaintiff for the defendant’s wrongful conduct. The plaintiff normally seeks “compensatory damages” to compensate the plaintiff for the harm suffered by the plaintiff as a result of the defendant’s wrongful acts or omissions.
Punitive damages are not intended to compensate the plaintiff. Instead, they are awarded to punish the wrongdoer and to discourage future similar conduct by the wrongdoer and others similarly situated.
Punitive damages have been available under Wisconsin law since 1854. Today, punitive damages are authorized by a specific statute, §895.043, Wisconsin Statutes. Under this statute, punitive damages may be awarded if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. When punitive damages are requested, the judge is responsible for acting as the “gatekeeper” to determine whether a jury should consider awarding punitive damages. Once the judge makes this determination, the issue of whether to award punitive damages is up to the jury.
The factors to be considered in determining the amount of punitive damages to be awarded include the grievousness of the defendant’s conduct, the degree of the defendant’s malicious intent, the potential damage that might have been done by the defendant’s actions, the actual damage that occurred, and the defendant’s ability to pay.
The types of cases where punitive damages are allowed has been subject of much litigation in Wisconsin. Punitive damages have been awarded in cases involving product liability claims, assault and battery, malicious prosecution, libel and slander, and numerous other types of cases involving aggravated tortious conduct. Punitive damages are not available in medical malpractice cases. Punitive damages are not available for mere breach of contract, but they may be available if there is evidence of other tortious conduct by the defendant. For example, punitive damages can be awarded in a claim against an insurance carrier involving the bad faith refusal to pay benefits under an insurance policy.
In a highly publicized case involving a crane accident which occurred during the construction of Miller Park, a Milwaukee jury awarded $5.25 million in compensatory damages and $94 million in punitive damages against a subcontractor which was found to have acted with a purpose to disregard workers’ rights or with an awareness that its conduct was substantially certain to result in the workers’ rights being disregarded.
In 2011, the Wisconsin legislature adopted a statute limiting punitive damages to no more than twice the amount of the compensatory damages recovered by the plaintiff or $200,000, whichever is greater. The statute contains an exception to the punitive damages cap for certain drunk driving cases. The cap on punitive damages applies to claims filed on or after February 1, 2011.
Appellate courts are often called upon to “second guess” the amount of punitive damages awarded by trial courts and juries. The U.S. Supreme Court has determined that the Fourteenth Amendment limits grossly excessive punitive damages awards. In April of this year, the Wisconsin Supreme Court issued a decision in the case of Kimble v. Land Concepts, Inc., where the jury had awarded compensatory damages in the amount of $50,000 and punitive damages in the amount of $1,000,000 for a title insurance company’s bad faith refusal to pay benefits under a title insurance policy. The recently enacted $200,000 cap did not apply in Kimble because the case had been filed prior to February 1, 2011. The Wisconsin Supreme Court determined that the punitive damages award should be reduced to $210,000, because it concluded that there were not special circumstances which justified the higher punitive damages award. The Court noted that although the defendant’s conduct was “reprehensible,” there was no indication that the defendant had engaged in repeated misconduct or had acted maliciously, that physical harm occurred to the plaintiff, or that the plaintiff was financially vulnerable.
Punitive damages are not intended to compensate the plaintiff. Instead, they are awarded to punish the wrongdoer and to discourage future similar conduct by the wrongdoer and others similarly situated.
Punitive damages have been available under Wisconsin law since 1854. Today, punitive damages are authorized by a specific statute, §895.043, Wisconsin Statutes. Under this statute, punitive damages may be awarded if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. When punitive damages are requested, the judge is responsible for acting as the “gatekeeper” to determine whether a jury should consider awarding punitive damages. Once the judge makes this determination, the issue of whether to award punitive damages is up to the jury.
The factors to be considered in determining the amount of punitive damages to be awarded include the grievousness of the defendant’s conduct, the degree of the defendant’s malicious intent, the potential damage that might have been done by the defendant’s actions, the actual damage that occurred, and the defendant’s ability to pay.
The types of cases where punitive damages are allowed has been subject of much litigation in Wisconsin. Punitive damages have been awarded in cases involving product liability claims, assault and battery, malicious prosecution, libel and slander, and numerous other types of cases involving aggravated tortious conduct. Punitive damages are not available in medical malpractice cases. Punitive damages are not available for mere breach of contract, but they may be available if there is evidence of other tortious conduct by the defendant. For example, punitive damages can be awarded in a claim against an insurance carrier involving the bad faith refusal to pay benefits under an insurance policy.
In a highly publicized case involving a crane accident which occurred during the construction of Miller Park, a Milwaukee jury awarded $5.25 million in compensatory damages and $94 million in punitive damages against a subcontractor which was found to have acted with a purpose to disregard workers’ rights or with an awareness that its conduct was substantially certain to result in the workers’ rights being disregarded.
In 2011, the Wisconsin legislature adopted a statute limiting punitive damages to no more than twice the amount of the compensatory damages recovered by the plaintiff or $200,000, whichever is greater. The statute contains an exception to the punitive damages cap for certain drunk driving cases. The cap on punitive damages applies to claims filed on or after February 1, 2011.
Appellate courts are often called upon to “second guess” the amount of punitive damages awarded by trial courts and juries. The U.S. Supreme Court has determined that the Fourteenth Amendment limits grossly excessive punitive damages awards. In April of this year, the Wisconsin Supreme Court issued a decision in the case of Kimble v. Land Concepts, Inc., where the jury had awarded compensatory damages in the amount of $50,000 and punitive damages in the amount of $1,000,000 for a title insurance company’s bad faith refusal to pay benefits under a title insurance policy. The recently enacted $200,000 cap did not apply in Kimble because the case had been filed prior to February 1, 2011. The Wisconsin Supreme Court determined that the punitive damages award should be reduced to $210,000, because it concluded that there were not special circumstances which justified the higher punitive damages award. The Court noted that although the defendant’s conduct was “reprehensible,” there was no indication that the defendant had engaged in repeated misconduct or had acted maliciously, that physical harm occurred to the plaintiff, or that the plaintiff was financially vulnerable.