B. Grounds for and Limits Upon Punitive Damages

• Library: South Carolina Damages Supplement (SCBar) (2017 Ed.)

B. Grounds for and Limits Upon Punitive Damages

Plaintiffs in South Carolina can receive punitive damage awards as a common law remedy or a statutory remedy. A claim for punitive damages must be specifically pled in the complaint for all actions that accrue on or after January 1, 2012.⁴⁸

1. Statutory Theories

Statutory remedies are varied.

a. Some statutes provide a clear ground or mandate for punitive damages, but allow the triers of fact to determine the amount:

(1) South Carolina statutes:

• Death by wrongful act: S.C. Code Ann. § 15-51-40 (allowing exemplary damages when the wrongful act, neglect, or default was the result of recklessness, willfulness, or malice).
• Recovery of personal property judgments: S.C. Code Ann. § 15-69-210 (allowing punitive damages for the taking and withholding of property when a return cannot be had).
• Sham legal process: S.C. Code Ann. § 15-75-60 (allowing punitive damages to a person who is injured by a sham legal process).
• Bootleg and counterfeit records, tapes, and recordings: S.C. Code Ann. § 16-11-910(B) (allowing the owner of a record, disc, wire, tape, film, or other article or device which is transferred unlawfully to sue for punitive damages).
• Public records, filings against present or former government officials: S.C. Code Ann. § 30-9-35 (allowing punitive damages to a person who is injured by the filing of a judgment or other lien in contravention of the statute).
• South Carolina Fair Housing Act: S.C. Code Ann. § 31-21-140(B) (allowing punitive damages to victims of discriminatory housing practices);
• Nonprofit Corporations Act: S.C. Code Ann. § 33-31-831 cmt. 6 (providing in the official comments that exemplary damages are appropriate in particularly egregious cases involving fraudulent and malicious conduct).
• Underinsured motor vehicle insurance: S.C. Code Ann. § 38-73-1105 (allowing for punitive damages if an insurer violates this section).
• Motor vehicle property damage claims arbitration: S.C. Code Ann. § 38-77-710 (allowing arbitrators to hear and decide property damage claims and award punitive damages when appropriate).
• Right to Work Act: S.C. Code Ann. § 41-7-90 (allowing actual and punitive damages for violations of the "Right-to-Work" laws).
• Body piercing: S.C. Code Ann. § 44-32-60 (allowing punitive damages if a body piercing is performed on a person under the age of eighteen in violation of § 44-32-60(C)).
• Abortions-failure to obtain required consent: S.C. Code Ann. § 44-41-35 (allows for exemplary damages for doctor's failure to gain consent of a parent when an abortion is performed on a minor unless a judicial bypass has been granted).
• Abortions-causes of action against physician: S.C. Code Ann. § 44-41-85(C)(2)(b) (allowing a potential grandparent or father an award of punitive damages if a physician performs what is termed a "partial birth abortion").
• Drug Dealer Liability Act: S.C. Code Ann. § 44-54-40(D)(3) (allowing certain individuals to sue and recover exemplary damages from those who market or supply drugs illegally to a user).
• Telephone and Telegraph Companies Act: S.C. Code Ann. § 58-9-2160 (allowing punitive damages growing out of any violations of the provisions of § 58-9-2150 and any such cause of action which may be united in the same complaint).
• General railroad law: S.C. Code Ann. § 58-17-3020 (allowing punitive damages growing out of any violation of this section and any such causes of action may be united in the same complaint).
• Actions for injuries caused by violation of Commission rules or regulations: S.C. Code Ann. § 58-17-3950 (mandating that, in cases involving willful violations of the law, railroad companies shall be liable for exemplary damages).
• Liability of common carriers interfering with shipment: S.C. Code Ann. § 58-17-4070 (mandating liability for punitive damages when a common carrier violates the provisions of § 58-17-4060).

(2) Federal statutes:

• Bankruptcy code: 11 U.S.C. §§ 303(i)(2)(B), 362(k), 363(n) (2000) (providing that punitive damages may be awarded).
• Right to Financial Privacy Act: 12 U.S.C. § 3417(a)(3) (allowing punitive damages for intentional or willful violations).
• Securities Exchange Act of 1934: 15 U.S.C. § 78u(h)(7)(A)(iii) (allowing punitive damages for intentional or willful violations).
• Jeweler's Liability Act: 15 U.S.C. § 298(c) (allowing punitive damages for frivolously brought suits).
• Lanham (Trademark) Act: 15 U.S.C. § 1116(d)(11) (allowing punitive damages for seizures sought in bad faith).
• Credit Repair Organizations Act: 15 U.S.C. § 1679g(a)(2) (allowing punitive damages for violations of the Act).
• Fair Credit Reporting Act: 15 U.S.C. § 1681n(a)(2) (allowing punitive damages for willful noncompliance with the Act).
• Toxic Substances Control Act: 15 U.S.C. § 2622(d) (allowing the government to bring a civil action if a party fails to comply with a previous court order and provides for various forms of relief, including exemplary damages).
• Petroleum Marketing Practices Act: 15 U.S.C. § 2805(d) (allowing exemplary damages against a franchisor for willful violations of the Act).
• Freedom of access to clinic entrances: 18 U.S.C. § 248(c) (allowing punitive damages for any interference with a person attempting to obtain reproductive health services).
• Interception Act: 18 U.S.C. § 2520(b)(2) (allowing recovery of punitive damages by any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of the Act).
• Privacy Protection Act: 18 U.S.C. § 2710(c)(2)(B) (allowing punitive damages against a videotape service provider who knowingly discloses personally identifiable information concerning any consumer).
• Personal information from state motor vehicle records: 18 U.S.C. § 2724 (stating punitive damages are available upon proof of willful or reckless disregard of the law for any victim whose personal information obtained from motor vehicle records was used unlawfully).
• Higher Education Act of 1965: 20 U.S.C. § 1095a(a)(8) (allowing the government to garnish an employee's wages to recover money for unpaid student loans and provides that an employer failing to comply with such withholding

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