The State Department web site below is a permanent electronic archive of information released prior to January 20, 2001.  Please see www.state.gov for material released since President George W. Bush took office on that date.  This site is not updated so external links may no longer function.  Contact us with any questions about finding information. NOTE: External links to other Internet sites should not be construed as an endorsement of the views contained therein.

The History of Punitive Damages in U.S. Law

[note: This document was reformatted for HTML. The text remains the same.]

A. Foundations in other legal systems

The United States is neither the first nor the only legal system to award damages to set an example or punish a defendant by providing compensation to a plaintiff beyond actual economic loss. The concept of multiple damages is mentioned in religious law as early as the Book of Exodus,¹ and in secular law as early as the Code of Hammurabi in 2000 B.C.² It was part of the law of the Babylonians,³ the Hittites,⁴ the Hindu Code of Manu,⁵ and the ancient Greeks.⁶

Commentators generally agree that the multiple damages remedies of Roman civil law were built on a concept of punishment beyond simple compensation.⁷ Similar approaches are found in the development of English common law, beginning with multiple damages statutes as early as 1278.⁸ The 1763 Common Pleas case of Wilkes v. Wood⁹ is perhaps the first recorded English case to award damages in excess of mere compensation. John Wilkes challenged the legality of a general warrant used in a search of his house by government authorities. The instructions to the jury specifically authorized damages that would punish the defendant and deter future misconduct, stating that, "[d]amages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself."¹⁰

The Wilkes v. Wood approach was reinforced in the companion case of Huckle v. Money,¹¹ where "exemplary damages" were awarded in fining the crown for false imprisonment and recognizing that a jury could return a verdict in excess of actual compensatory loss.¹² An award of 300 was upheld even though the journeyman printer who had been taken into custody in the course of a raid on North Briton was employed at a weekly wage of one guinea, had been in custody for only about six hours, and had been treated "very civilly," receiving beef steaks and beer. The focus of the damages was clearly on the "most outrageous" conduct of the defendants.¹³

In 1964 the House of Lords confirmed the ability of English courts to grant awards for exemplary damages in Rookes v. Barnard.¹⁴ Lord Devlin's opinion is particularly instructive, concluding that exemplary damages have long been recognized in English courts, with their objective being to punish and deter.¹⁵ He found it "well established" that the jury can take into account both "the motives and conduct"¹⁶ and the wealth of the defendant.¹⁷ Lord Devlin listed three categories of cases "in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil [law] a principle which ought logically to belong to the criminal".¹⁸ They are:

1. cases in which there is "oppressive, arbitrary or unconstitutional action by the servants of the government",¹⁹
2. cases "in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff",²⁰ and
3. cases "in which exemplary damages are expressly authorised by statute".²¹

In Uren v. John Fairfax and Sons Pty. Ltd.,²² the High Court of Australia continued its authorization of exemplary damages, refusing to accept the limitations of the categorical approach of Rookes v. Barnard. Addressing a claim for defamation, McTiernan J. found that Lord Devlin's formulation "imposes an undue burden on the plaintiff".²³ The Australian court chose instead to retain the rule that "if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights",²⁴ "damages may be given of a vindictive and uncertain kind, not merely to repay the plaintiff for temporal loss but to punish the defendant in an exemplary manner" for his outrageous conduct".²⁵ The limitations of Rookes v. Barnard similarly have been rejected in Canada²⁶ and New Zealand.²⁷

B. Development in the United States

In the United States, the concept of punitive damages is well-entrenched.²⁸ Cases often refer to the 1914 case of Luther v. Shaw,²⁹ in which the Wisconsin court stated:

"The law giving exemplary damages is an outgrowth of the English love of liberty regulated by law. It tends to elevate the jury as a responsible instrument of government, discourages private reprisals, restrains the strong, influential, and unscrupulous, vindicates the right of the weak, and encourages recourse to and confidence in the courts of law by those wronged or oppressed by acts or practices not cognizable in or sufficiently punished by the criminal law".³⁰

Questions about the propriety of punitive damages formed the foundation of a classic debate of nineteenth century US law. Simon Greenleaf, in his Treatise on the Law of Evidence,³¹ took the position that

"[d]amages are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more, nor less ..."³²

Greenleaf's counterpart, Theodore Sedgwick, agreed that the law generally focuses on compensation. Where there is fraud, malice, gross negligence, or oppression, however, Sedgwick wrote that

"the law ... adopts a wholly different rule ... It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender. This rule seems settled in England, and in the general jurisprudence of this country."³³

Sedgwick's position was given the imprimatur of the US Supreme Court in the 1852 case of Day v. Woodsworth:³⁴

"It is a well established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff."³⁵

C. The constitutional dimension of punitive damages law

Recent US Supreme Court decisions address the constitutionality of punitive damages awards. In the 1989 case of Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc.,³⁶ the Court held that the Excessive Fines clause of the Eighth Amendment³⁷ does not apply to a punitive damages award in a civil case between private parties,³⁸ and that federal common law does not allow a court to interfere with the jury's punitive damages award.³⁹ The first of these holdings represents a clear distinction between punishment under the criminal law system and civil law damages payable to a private party. The Court found that "the Eighth Amendment Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government",⁴⁰ and "points to an intent to deal only with the prosecutorial powers of government".⁴¹

The more difficult constitutional question regarding punitive damages has been whether the Due Process Clause of the Fourteenth Amendment⁴² places limits on a jury's ability to award punitive damages. In Pacific Mutual Life Ins. Co. v. Haslip,⁴³ Justice Blackmun set forth a case-by-case analysis. His majority opinion emphasized that the Alabama state procedure involved provided for post-trial scrutiny of punitive damage awards, and that Alabama Supreme Court review had provided a further check to determine the relationship between the punitive damages award and the goals of deterrence and retribution.⁴⁴ Blackmun concluded that the punitive damages award, which was at least four times the amount of compensatory damages, did not "cross the line into the area of constitutional impropriety".⁴⁵

In TXO Production Corp. v. Alliance Resources Corp.,⁴⁶ the Court made clear that a simple comparison of punitive damages to an accompanying compensatory award will not be sufficient to prove a due process violation.⁴⁷ It upheld a West Virginia punitive damages award that was 526 times greater than the actual damages awarded by the jury. While the plurality opinion written by Justice Stevens "eschewed an approach that concentrates entirely on the relationship between actual and punitive damages",⁴⁸ it determined it "appropriate to consider the magnitude of the potential harm that defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred".⁴⁹ The court ultimately determined that a $10 million punitive damages award was reasonable "in light of the amount of money potentially at stake, the bad faith of petitioner, the fact that the scheme employed in this case was part of a larger pattern of fraud, trickery and deceit, and petitioner's wealth".⁵⁰

What is clear from recent Supreme Court cases is that the mere fact that punitive damages are awarded in an amount substantially in excess of the accompanying compensatory damages will not in itself justify a constitutional challenge. Rather than a focus on the amount of the punitive damages, the due process analysis of the court requires (1) meaningful and adequate review of a jury's punitive damages award by the trial court, and subsequent appellate review, and (2) some indication that the jury verdict has a reasonable relationship to the goals of deterrence and punishment and is not based on prohibited grounds such as prejudice against an out-of-state defendant.

In the 1993 term, the Court heard Honda Motor Co., Ltd. v. Oberg,⁵¹ challenging a 1910 amendment to the Oregon Constitution prohibiting judicial review of punitive damages verdicts "unless the court can affirmatively say there is no evidence to support the verdict".⁵² Stating that "'meaningful and adequate review [of punitive damages awards] by the trial court' and subsequent appellate review"⁵³ are required by the Due Process Clause, the Court sent the matter back to the Oregon Supreme Court with instructions to provide such review.

EMPIRICAL DATA ON PUNITIVE DAMAGES

Recent studies demonstrate that (1) in only a very small percentage of personal injury cases in the US are punitive damages awarded;⁵⁴ (2) in those cases in which punitive damages are awarded, they often are either reduced, reversed or otherwise never paid;⁵⁵ and (3) despite the punitive and deterrent purposes of such damages, there exists a high correlation between punitive damages and economic loss.⁵⁶

Even in California, a state often considered extreme in its predisposition toward plaintiffs, a study of cases in the 1980's demonstrated that punitive damages were awarded in less than two percent of personal injury trials.⁵⁷ Another study indicates that nearly half (49.4%) of punitive damages awards are granted in intentional tort cases.⁵⁸

A 1995 report by the US Department of Justice covered 761,919 tort, contract and real estate cases filed in the 75 largest US counties in the one-year period ending June 20, 1992.⁵⁹ Of those cases, 12,763 (1.68%) were product liability cases. Of the 12,026 cases that went to jury trial, 358 (2.98%) were product liability cases. Of the 358 product liability jury cases, the plaintiff won 142 (39.66%). Of these, the median size of the awards was $260,000, the mean was $727,000, and only 15.4% were for more than $1,000,000. Moreover, punitive damages were awarded in only three of the 142 cases won by the plaintiff. The total punitive damages awarded in these three cases was $40,000.⁶⁰

RECENT CONGRESSIONAL CONSIDERATION OF PUNITIVE DAMAGES

The promise to reform US litigation, particularly as it relates to product liability actions, was a part of the "Contract with America," on which Republican congressional candidates campaigned in the fall of 1994. This promise resulted in the introduction of a number of bills in the 104th Congress. Ultimately, in March of 1996, the Conference Committee of the House and Senate agreed upon a version of the "Common Sense Product Liability Legal Reform Act of 1996".⁶¹ This Act would federalize US product liability litigation, applying to "any product liability action brought in any state or federal court on any theory for harm caused by a product".⁶² It provides for a uniform maximum statute of limitations of two years after the date on which the claimant "discovered or, in the exercise of reasonable care, should have discovered" the harm,⁶³ and an ultimate fifteen year statute of repose from the time of the delivery of the product to the first purchaser.⁶⁴ In addition, it (1) requires that all punitive damages claims be proved by "clear and convincing evidence that conduct carried out by the defendant with a conscious, flagrant indifference to the rights or safety of others was the proximate cause of the harm",⁶⁵ and (2) limits punitive damages to the greater of twice the total of economic damages or $250,000.⁶⁶ President Clinton promised a veto of the bill.⁶⁷ The Senate passed the Act on March 21.

STATE LIMITATIONS ON THE AVAILABILITY OF PUNITIVE DAMAGES

The past decade has seen significant reform of state litigation rules, particularly in the area of punitive damages remedies.⁶⁸ These changes have come both through statutory reform and judicial limits on the availability of punitive damages, and have included (1) the implementation of higher evidentiary standards, thus limiting the authority of juries to award punitive damages; (2) legislation requiring that portions of punitive damages awards be paid to the state rather than to the plaintiff; (3) dollar limitations on the amount of punitive damages that may be awarded; and (4) the complete prohibition of punitive damage awards.

The most widely employed method of restricting the availability of punitive damages has been to replace the "preponderance of the evidence" standard with a requirement that the plaintiff prove liability on the part of the defendant by "clear and convincing" evidence before punitive damages may be recovered. Twenty states have enacted statutes that require "clear and convincing" evidence of defendant liability to justify punitive damages.⁶⁹ A vast majority of these changes in the evidentiary standard have been enacted since 1986. Colorado has gone beyond the clear and convincing evidence standard to provide that "[e]xemplary damages ... shall only be awarded when the party asserting the claim proves beyond a reasonable doubt the commission of a wrong".⁷⁰

In addition to the twenty states that have raised their evidentiary standards by statute, the highest courts of eight more states have stated that a plaintiff must demonstrate malice, ill will or oppression on the part of a defendant by clear and convincing evidence.⁷¹ The Supreme Courts of two states have ruled that the clear and convincing evidence standard applies to punitive damage awards in libel suits.⁷² Taken together, nearly three-fifths of the US states have raised the evidentiary hurdle for awarding punitive damages.

To reduce a plaintiff's financial incentive in punitive damages cases, seven states now require that a portion of any punitive damages award be paid to the state.⁷³ Two states enacted similar laws, but repealed them in 1995.⁷⁴ These laws often are accompanied by legislative statements that the purpose of punitive damages is not to enrich or even compensate a plaintiff, but instead to punish defendants and deter similar actions of others.⁷⁵

More than a dozen state legislatures have imposed monetary caps on punitive damages.⁷⁶ Alabama and Virginia impose a straightforward monetary limit on punitive damages of $250,000 and $350,000 respectively.⁷⁷ Other states limit punitive damages awards to no more than double or triple the amount of compensatory damages.⁷⁸ Still others offer a hybrid approach, allowing no more than double or triple actual damages, up to a specified amount.⁷⁹ Connecticut has a punitive damages cap of no more than twice the amount of actual damages in products liability cases,⁸⁰ while Georgia has a punitive damages cap of $250,000 except for products liability cases.⁸¹ Oklahoma imposes a cap of $100,000 (or an amount equal to actual damage for actions showing "reckless disregard"), while allowing up to $500,000 (or twice actual damages upon a showing of "intentional malice").⁸²

Finally, five states have imposed the most severe restraints through a complete prohibition on punitive damages awards unless they are specifically authorized by statute.⁸³ In New Hampshire this restriction is statutory,⁸⁴ while Nebraska has written the prohibition of punitive damages into its state constitution.⁸⁵ The Montana legislature opted for a partial ban on punitive damage awards through a measure prohibiting punitive damages in contract claims.⁸⁶

Other states have imposed the ban on punitive damage awards through case law.⁸⁷ These cases generally hold that the state legislature must specifically authorize the award of punitive damages before such relief can be ordered by the courts. In Michigan, the state Supreme Court has taken a slightly different approach, interpreting the law to require a denial of punitive damages when compensatory damages can make the injured party whole.⁸⁸ In contrast to the piecemeal limitations on punitive damages imposed in a majority of states, an outright ban on punitive damages takes away all discretion from a court and jury.

^ENDNOTES

¹ If a man shall steal an ox, or a sheep, and kill it, or sell it, he shall restore five oxen for an ox, and four sheep for a sheep. Exodus 22:1.

² Code of Hammurabi 5, 8, 12, 107,112 & 265, compiled in A. Kocourek & J. Wigmore, 1 Sources of Ancient and Primitive Law (1915). See Linda L. Schlueter & Kenneth R. Redden, 1 Punitive Damages 3 (2d ed. 1989); James B. Sales & Kenneth B. Cole, Jr., Punitive Damages: A Relic That Has Outlived Its Origins, 37 Vand. L.Rev. 1117, 1119 (1984).

³ See generally, H. Jolowicz, The Assessment of Penalties in Primitive Law, Cambridge Legal Essays (1926); Schlueter & Redden, supra note 2, at 4.

⁴ Jolowicz, supra note 4, at 205-06; Schlueter & Redden, supra note 2, at 4.

⁵ See G. Lee, Historical Jurisprudence 124 (1981); The Laws of Manu, compiled in Kocourek & Wigmore, supra note 2.

⁶ See Plato, Protagoras 324b; Plato, Laws 9.85b and 9.934a; H. Jolowicz, supra note 4.

⁷ See, e.g., Barry Nicholas, An Introduction to Roman Law 215-225 (1977); Schlueter & Redden, supra note 2, at 5-6; Sales & Cole, supra note 2, at 1119 n. 5.

⁸ The statute of Gloucester provided for treble damages for waste. 6 Edw. I, c. 5. See also F. Pollock & F. Maitland, 2 The History of English Law Before the Time of Edward I 522 (2d ed. 1899) ("under Edward I, a favourite device of [English] legislators [was] that of giving double or treble damages to "the party grieved.""); Note, Exemplary Damages in the Law of Torts, 70 Harv. L.Rev. 517, 518 (1957).

⁹ 2 Wils. K.B. 205, 95 Eng. Rep. 489 (C.P. 1763).

¹⁰ Id. at 98 Eng. Rep. 498-9.

¹¹ 95 Eng. Rep. 768 (C.P. 1763).

¹² Id. at 769.

¹³ Id. at 2 Wils. K.B. 206.

¹⁴ [1964] A.C. 1129. A survey of the history of English punitive damages law is found in Lord Devlin's opinion. Id. at 1221.

¹⁵ Id. at 1221.

¹⁶ Id.

¹⁷ Id. at 1228.

¹⁸ Id. at 1226.

¹⁹ Id. at 1226.

²⁰ Id.

²¹ Id. at 1227.

²² 117 C.L.R. 118 (1966).

²³ Id. at 19.

²⁴ Id. at Taylor J., 4.

²⁵ Id. at Menzies J., 15, quoting Finlay v. Chirney (1888) 20 Q.B.D. 494, 504.

26. See, e.g., Vorvis v. Insurance Corp. of British Columbia (1989) 58 D.L.R. (4th) 193, 273 (McIntyre J.).

²⁷ See, e.g., Fogg v. NcKnight [1968] N.Z.L.R. 330.

²⁸ See, e.g., I Schlueter & Redden, supra note 3, at 15-17; Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42 Am. Univ. L.Rev. 1269 (1993); Sales & Cole, supra Note, note 3, at 1124-25; Clarence Morris, Punitive Damages in Tort Cases, 44 Harv. L.Rev. 1173 (1931); Note, Hugh Evander Willis, Measure of Damages When Property is Wrongfully Taken by a Private Individual, 22 Harv. L.Rev. 419 (1909).

²⁹ 157 Wis. 234, 147 N.W. 18 (1914).

³⁰ Id. at 238, 147 N.W. 18, 19-20.

³¹ Simon Greenleaf, II A Treatise on the Law of Evidence (3d ed. 1850, reprint ed. 1972).

³² Id. at 244.

³³ Theodore Sedgwick, A Treatise on the Measure of Damages 38-39 (1847, reprint ed. 1972).

³⁴ 54 US (13 How.) 363, 371 (1852).

³⁵ Id. at 371. For similar decisions, see also Scott v. Donald, 165 US 58, 86 (1897); Lake Shore Ry. v. Prentice, 147 US (40 Davis) 101, 107 (1893); Wilmington & Baltimore R.R. v. Quigley, 62 US (21 How.) 202, 213 (1858).

³⁶ 492 US 257 (1989).

³⁷ The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." US Const. amend. VIII.

³⁸ 492 US at 259-60.

³⁹ Id. at 280.

⁴⁰ Id. at 268.

⁴¹ Id. at 275.

⁴² "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." US Const. Amend. XIV, 1.

⁴³ 499 US 1 (1991).

⁴⁴ Id. at 20-21.

⁴⁵ Id. at 24.

⁴⁶ 113 S. Ct. 2711 (1993).

⁴⁷ 113 S. Ct. at 2720. Australian courts also have rejected the need for any connection between compensatory and punitive damages. See, e.g., XL Petroleum (NSW) Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1985) 155 C.L.R. 448, 471.

⁴⁸ Id. at 2721.

⁴⁹ Id. at 2722.

⁵⁰ Id. at 2722 (Scalia, J., concurring).

⁵¹ 114 S.Ct. 2331 (1994).

⁵² Oregon Const. Art. VII, 3.

⁵³ 114 S.Ct. at 2335, quoting Haslip at 499 US 20.

⁵⁴ See, e.g., Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U.L.Rev. 1393, 1412. A study of Cook County, Illinois, and California cases found punitive awards from 1980 to 1984 in only about 1% of all personal injury verdicts. Mark Peterson et al., The Inst. for Civil Justice (RAND), Punitive Damages: Empirical Findings 35 (1987), reporting on an Institute of Civil Justice study. A study of Texas cases in the mid-1980's found punitive damages awarded in 0.6% of non-medical claims and 0.2% of medical malpractice claims. Texas State Board of Insurance, Texas Liability Insurance Closed Claim Survey 32 (1987). A review of 1980's product liability cases found punitive damages awards in about 2% of 359 reported cases. William M. Landes & Richard A. Posner, New Light on Punitive Damages, Reg., Sept.-Oct. 1986, at 33, 36. Another study of product liability cases closed in 1985 found punitive damages paid in only four of 442 (0.7%) claims. Lawrence W. Soular, A Study of Large Product Liability Claims closed in 1985 18-89 (1986).

Not only are punitive damages awards granted less often than is commonly thought, but they also appear to be decreasing in number. When asbestos cases are factored out, a recent study discovered that the number of punitive damages awards dropped by 34% from the early 1980's (1981-85) to the late 1980's (1986-90). Michael Rustad, The Roscoe Pound Foundation, Demystifying Punitive Damages in Products Liability Cases: A Survey of a Quarter Century of Trial Verdicts 24 (1991). From 1985 to 1991, federal court filings of non-asbestos product liability cases actually declined by 36%. Director of the Admin. Office of the US Courts, Annual Reports of the Proceedings of the Judicial Conference (1985-91) tb. C2. See also James A. Henderson & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 U.C.L.A. L.Rev. 479, 539-43 (1990).

⁵⁵ Rustad, supra note 54, at 24 (finding that even when juries awarded punitive damages, in 40.2% of the cases no punitive damages are paid, in 14.7% of the cases the award of punitivedamages is reduced, and in only 45.7% of the cases are the full punitive damages amounts awarded by the jury collected).

⁵⁶ One study found a correlation of .71 between punitive damages and compensatory damages. US General Accounting Office, Product Liability: Verdicts and Case Resolution in Five States, Sept. 1989, at 3.

⁵⁷ Peterson et al., supra note 54, at 12.

⁵⁸ Stephen Daniels & Joanne Martin, Empirical Patterns in Punitive Damage Cases: A Description of Incidence Rates and Awards 11 (American Bar Foundation Working Paper No 8705, 1987) (studying punitive damages awards in state courts of forty-two counties in ten states in the early 1980's).

⁵⁹ US Department of Justice Office of Justice Programs, Bureau of Justice Statistics Special Report, Civil Justice Survey of State Courts, 1992: Civil Jury Cases and Verdicts in Large Counties (July 1995).

⁶⁰ Id. (Table 9).

⁶¹ H.R. 956, H.R. 10, 104th Cong., 1st Sess. (1995). See Common Sense Product Liability Legal Reform Act of 1996, Conference Report of March 13, 1996, Westlaw BNA-DER, 1996 DER 51 d105.

⁶² H.R. 956, supra note 61, at 102(a)(1).

⁶³ Id. at 106(a)(1).

⁶⁴ Id. 106(1)(b).

⁶⁵ Id. 108(a).

⁶⁶ Id. 108(b).

⁶⁷ Letter from President Clinton to Senate Majority Leader Bob Dole and Statement of Administration Policy on "Common Sense Product Liability Legal Reform Act of 1996", H.R. 956, dated March 16, 1996, reprinted at Westlaw BNA-DER, 1996 DER 53 d123.

⁶⁸ See Martha Middleton, A Changing Landscape: As Congress Struggles to Rewrite the Nation's Tort Laws, the States Already May Have Done the Job, 81 A.B.A.J. 56 (1995).

⁶⁹ Ala. Code 6-11-21 (1993); Alaska Stat. 9.17.020 (1994); Cal. Civ. Code 3294 (a) (1994); Ga. Code Ann. 51-12-5.1 (1994); Ill. Ann. Stat. Ch. 735 para. 5/2-1207 (Westlaw 1995); Iowa Code Ann. 668A.1.(1)(a) (1987); Kan. Stat. Ann. 60-3701(c)(1994); Ky. Rev. Stat. Ann. 411.184(2) (Michie/Bobbs-Merril 1991); Minn. Stat. Ann. 549.20(1) (West 1995); Miss. Code Ann. 11-1-65(1)(a)(1994); Mont. Code Ann. 27-1-221(5) (1995); Nev. Rev. Stat. Ann. 42.005(1) (Michie 1986); N.D. Cent. Code 3203.21(1) (1993); Ohio Rev. Code Ann. 2315.21(D)(3) (Baldwin 1994); Okla. Stat. Ann. Title 23 9.1(B),(C),(D) (Westlaw 1995); Or. Rev. Stat. 30.925 (1988); S.C. Code Ann. 15-33-135 (Law. Co-op 1994); Tex. Civ. Prac. & Rem. Code Ann. 41.001(5) (Westlaw 1995); Utah Code Ann. 78-18-1(1)(a) (1992).

⁷⁰ Colo. Rev. Stat. Ann. 13-25-127 (1987) (emphasis added).

⁷¹ Thompson v. Better-Bilt Aluminum Products Co., 832 P.2d 203 (Ariz. 1992); Freeman v. Alamo Mgt. Co., 607 A.2d 370 (Conn. 1992); Amfac, Inc. v. Waikiki Beachcomer Inv. Co., 839 P.2d 10 (Haw. 1992); Estate of Reasor v. Putnam Co., 635 N.E.2d 153 (Ind. 1994); Fitzgerald v. Gamester, 658 A.2d 1065 (Me. 1995); AcandS, Inc. v. Godwin, 667 A.2d 116 (Md. 1995); Boling v. Tenn. State Bank, 890 S.W.2d 32 (Tenn. 1994); Loveridge v. Chartier, 468 N.W.2d 146 (Wis. 1991).

⁷² Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995); Schnupp v. Smith, 457 S.E.2d 42 (Va. 1995).

⁷³ Ga. Code Ann. 51-12-5.1(e)(2) (1994); Ill. Ann. Stat. ch. 735 5/2-1207 (Westlaw 1995); Ind. Code Ann. 34-4-34-6 (Westlaw 1995); Iowa Code Ann. 668A.1(2) (1987); Mo. Stat. Ann. 537.675 (Vernon 1988); Or. Rev. Stat. 18.540 (1988); Utah Code Ann. 78-18-1(1)(a) (1992).

⁷⁴ Col. Rev. Stat. Ann. 13-21-102(4) (1987); Fla. Stat. Ann. 768.73(2)(b) (1995).

⁷⁵ See, e.g., Cal. Civ. Code 3294(a)(1994); Ga. Code Ann. 51-12-5.1(c) (1994); Idaho Code 6-1604 (1990). The statutes requiring payment to the state vary considerably in their requirements and scope. In Indiana, for example, 75 percent of any punitive damage award must be paid to the state and deposited into the Violent Crime Victims Compensation Fund. Ind. Code Ann. 34-4-34-6 (Westlaw 1995). Georgia also requires that 75 percent of a punitive damages award be paid to the state, but only in product liability cases. Ga. Code Ann. 51-12-5.1 (e)(2) (1994). Iowa requires that 75 percent of any punitive damages be paid to the state, but only if the defendant's conduct was not specifically directed toward the plaintiff. Iowa Code Ann. 668A.1(2) (1987). Missouri, Oregon and Utah require that 50 percent of any punitive damages award, minus attorney fees, be turned over to the state, while Illinois allows the trial court the discretion to award a portion of a punitive damages award to the State Department of Rehabilitation Services. Mo. Stat. Ann. 537.675 (Vernon 1988); Or. Rev. Stat. 18.540 (1988); Utah Code Ann. 78-18-1(3) (1992); Ill. Ann. Stat. Ch. 735 para. 5/2-1207 (Westlaw 1995). While the approaches differ, the effect of all the statutes is to reduce the plaintiff's financial incentive in seeking punitive damages.

⁷⁶ Ala. Code 6-11-21 (1993); Colo. Rev. Stat. Ann. 13-21-102(1)(a) & (3)(1987); Conn. Gen. Stat. Ann. 52-240b (West 1991); Fla. Stat. Ann. 768.73(1)(a) (1995); Ga. Code Ann. 51-12-5.1(e)(1), (f) & (g) (1994); Ill. Ann. Stat. Ch. 735, para. 5/2-1115.05(a) (West 1995); Ind. Code Ann. 34-4-34-4 (West 1995); Kan. Stat. Ann. 60-3702(e), (f) & (h) (1994); Nev. Rev. Stat. Ann. 42.005(1) & (2) (Michie 1989); N.D. Cent. Code 3203.2-1(4)(1993); Okla. Stat. Ann. tit. 23, 9.1(B), (C) & (D) (West 1995); Tex. Civ. Prac. & Rem. Code Ann. 41.008 (West 1995); Va. Code Ann. 8.01-38.1 (Michie 1992).

⁷⁷ The Alabama law does provide for exceptions to the cap in cases of "a pattern or practice of intentional wrongful conduct," actual malice, or libel and defamation. Ala. Code 6-11-21 (1993). See also Va. Code Ann. 8.01-38.1 (Michie 1992).

⁷⁸ Colo. Rev. Stat. Ann. 13-21-102(1)(a) & (3) (1987); Fla. Stat. Ann. 768.73(1)(a) (1995); Ill. Ann. Stat. Ch. 735, 5/2-1115.05(a) (West 1995); Ind. Code Ann. 34-4-34-4 (West 1995).

⁷⁹ See, e.g., N.D. Cent. Code 3203.2-1(4) (1993) (punitive damage award may be no more than twice the compensatory damages, or $250,000, whichever is greater); Tex. Civ. Prac. & Rem. Code Ann. 41.008 (West 1995) (punitive damages may be no more than the greater of twice the amount of economic damages, plus non-economic damages, not to exceed $750,000, or $200,000).

⁸⁰ Conn. Gen. Stat. Ann. 52-240b (West 1991).

⁸¹ Ga. Code Ann. 51-12-5.1(e)(1), (f) & (g)(1994).

⁸² Okla. Stat. Ann. tit. 23, 9.1(B), (C) & (D) (West 1995).

⁸³ See Int'l Harvester Credit Corp. v. Seale, 518 So.2d 1039 (La. 1988); USM Corp. v. Marson Fastener Corp., 467 N.E.2d 1271 (Mass. 1984); Neb. Const. art VII, 5; N.H. Rev. Stat. 507.16 (1995); Kjerstad v. Ravellette Publ., Inc., 517 N.W.2d 419 (S.D. 1994); MacKay v. Acorn Custom Cabenetry, Inc., 898 P.2d 284 (Wash. 1995).

⁸⁴ N.H. Rev. Stat. 507.16 (1995).

⁸⁵ Neb. Const. art VII, 5.

⁸⁶ Mont. Code Ann. 27-1-220(2) (1993).

⁸⁷ See, e.g, Int'l Harvester Credit Corp. v. Seale, 518 So.2d 1039 (La. 1988); USM Corp. v. Marson Fastener Corp., 467 N.E.2d 1271 (Mass. 1984); Kjerstad v. Ravellette Publ., Inc., 517 N.W.2d 419 (S.D. 1994); MacKay v. Acorn Custom Cabenetry, Inc., 898 P.2d 284 (Wash. 1995).

⁸⁸ Hayes-Albion v. Kuberski, 364 N.W.2d 609, 617 (Mich. 1984).

[end of document]