E-Alert Case Updates

Maryland General Assembly Considers Bill Allowing Punitive Damages for Repeat Drunk Driving Offenders

Aggressive Drunk Driving – Punitive Damages
S.B. 302 (2016) (Maryland General Assembly)
by Caroline E. Willsey, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

On Wednesday, February 17, 2016, the Maryland Senate passed S.B. 302 – a bill designed to impose harsher civil penalties on drunk drivers. Specifically, the bill allows punitive damages for certain drunk drivers (defined as persons with an alcohol concentration of 0.08 or higher in the blood or breath) who cause personal injury or wrongful death while operating a motor vehicle. The bill would take effect on July 1, 2016 and have no retroactive effect. S.B. 302 was cross-introduced with H.B. 864, which is set for a hearing before the House Judiciary Committee on February 24, 2016. Similar bills introduced in 2015 (S.B. 605), 2012 (S.B. 351), 2011 (S.B. 483) and 2010 (H.B. 928) failed to pass.

Punitive damages can only be awarded if the defendant was convicted, entered a plea of nolo contendere, or received probation before judgment for driving under the influence within the last five (5) years. The bill does not clarify whether the phrase “in the last five (5) years” refers to the five years preceding the accident at issue or whether it refers to the five years preceding the trial. This distinction is critical. If courts adopt the latter interpretation of the phrase, criminal consequences arising out of the same accident that spawned the civil litigation could be enough to leave a defendant on the hook for punitive damages. Such a result seems contrary to the purpose of the bill, which is to enact punitive damages for repeat drunk driving offenders.

Senator Jamie Raskin (D – Montgomery) introduced the bill in the hopes of “rais[ing] the costs of drunk driving across the board,” and implementing a “zero tolerance policy,” noting that drunk drivers are “notoriously being let off with very light sentences.” Other sponsors of the bill include Senator Joanne Benson (D – Prince George’s), Senator Ulysses Currie (D – Prince George’s), Senator James DeGrange, Sr. (D – Anne Arundel), Senator Brian Feldman (D – Montgomery), Senator Cheryl Kagan (D – Montgomery), Senator Delores Kelley (D – Baltimore), Senator Nancy King (D – Montgomery), Senator Katherine Klausmeier (D – Baltimore), Senator Susan Lee (D – Montgomery), Senator Roger Manno (D – Montgomery), Senator Douglas Peters (D – Prince George’s), Senator Paul Pinsky (D – Prince George’s), Senator Catherine Pugh (D – Baltimore City), and Senator Victor Ramirez (D – Prince George’s).

The Maryland Association for Justice has come out in support of S.B. 302, a bill that it says “makes it clear that what we’re telling people is ‘stop driving drunk.’” Plaintiffs’ attorneys have denied that their firms will profit from punitive damages in drunken driving personal injury and wrongful death cases citing to the difficulty of collecting on judgments against individual driver defendants.

Representatives for Allstate, State Farm, the Maryland Chamber of Commerce and the Maryland Motor Truck Association have strongly opposed this legislation. All those opposed expressed the view that drunken driving should be handled in criminal court, not civil. Opponents argue that punitive damages would ultimately punish insurance companies and employers, not drunk drivers. In cases where the drivers have little or no assets, plaintiffs will likely attempt to collect punitive damages from related parties, namely insurance companies and employers. This would ultimately push costs back to the general public, as automobile insurers would be forced to increase premiums and employers will have additional financial liability for employee drivers.

If the economic burden of punitive damages is shouldered primarily by insurance and employers, opponents argue that the bill will do little to deter drunk driving. Opponents of the bill further argue that the threat of punitive damages will have little deterrent effect on drunken driving, especially when compared with already-existing criminal penalties like jail time, probation, losing a license, paying restitution, and being subject to Interlock. In a statement of opposition to S.B. 302, the Maryland Chamber of Commerce referenced the Maryland Court of Appeals’ observation in Komornik v. Sparks, 331 Md. 720 (1993), that “The fear of arrest is more of a deterrent than a verdict in a civil case for damages.” All opponents of the bill expressed support for harsher criminal penalties against drunk drivers as well as increased access to drug and alcohol counseling.