WI. Court of Appeals rules for punitive damages against drunk driver.

• Author: Ziemer, David

Byline: David Ziemer

A $225,000 punitive damage award against a drunk driver does not violate due process, the Wisconsin Court of Appeals held on Aug. 2.

According to the case, around 8 a.m. on Oct. 16, 1998, Levi Hogner began drinking beer at his home. At 2:30 p.m., after drinking at least 12 beers, he drove to a nearby tavern where he drank four to six more. Sometime after 4 p.m., he drove to another tavern. However, as he made a left hand turn from a northbound lane, he drove into the path of LeRoy Strenke, headed southbound, causing a collision.

A test revealed Hogner's blood alcohol content was 0.269 percent, and he had four previous drunk driving convictions.

Strenke brought suit, and a jury awarded $2,000 in compensatory damages and $225,000 in punitive damages, even though his attorney had only requested $25,000 in punitives. Hogner moved for remittitur or a new trial, but Barron County Judge Frederick A. Henderson denied the motions.

Hogner appealed, and the court of appeals certified the case to the Wisconsin Supreme Court. The court held that there was sufficient evidence to send the punitive damages question to the jury, but was evenly divided on whether the damage award violated Hogner's due process rights. Strenke v. Hogner, 2005 WI 25, 279 Wis.2d 52, 694 N.W.2d 296.

The latter question was remanded to the court of appeals, which held that the punitive damage award was constitutional, in a decision by Judge Thomas Cane.

After reviewing the history of punitive damage awards and the due process clause, from BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996), and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 412 (2003), to Trinity Evangelical Luth. Ch. v. Tower Ins. Co., 2003 WI 46, 261 Wis.2d 333, 661 N.W.2d 789, the court concluded the damage award met the standard established in those cases.

Court Considers Five Factors

The five factors to consider, in evaluating whether a punitive damage award is constitutional are: (1) whether the harm caused was physical or economic; (2) whether the tortious conduct evinced a reckless indifference to health or safety of others; (3) whether the target was financially vulnerable; (4) whether the conduct was single and isolated or involved repeated actions; and (5) whether the harm was the result of intentional malice, trickery, deceit, or mere accident.

In addition, evidence of recidivism can make conduct more reprehensible; and while there is no strict mathematical formula, a...