4701 Oleander Drive, Suite A
Myrtle Beach, SC 29577
Tort law is meant to compensate people who are hurt by other people or companies – if we did not have tort law, corporations would kill for profits, people would refuse to pay for damage that they caused, and ordinary people would turn to self-help…
Criminal law is meant to protect us from one another – if we did not have criminal laws, crime would be rampant, the strong would terrorize the weak, and ordinary people would turn to self-help…
What happens when a person or company does something that is just wrong, malicious, and harmful to others, but the criminal law doesn’t provide a remedy?
Enterpunitive damages– if you can prove that their conduct warrants it, you can ask jurors to punish a defendant and hopefully deter future bad conduct by awarding punitive damages against them.
Mostpersonal injury cases in South Carolina allow for punitive damages awards if you can prove that they are warranted and if the jurors in your case agree with you.
It could be a car wreck, a products liability case against a manufacturer, an assault and battery claim, or an environmental case against a corporation who is poisoning your water. Although there are a few exceptions like claims under the State Tort Claims Act, punitive damages are almost always available against defendants who deserve to be punished.
Punitive damages are never awarded automatically, and the SC legislature has limited the amount of punitive damages in many types of cases – what do you have to do to get a punitive damages award in SC?
First,you must askfor punitive damages.
Ask, and ye shall receive… well, maybe not. But, if youdon’task, youdefinitelywill notreceive punitive damages.
A claim for punitive damages must be pled in your Complaint – the initial document that your attorney files in court. You don’t have to plead a specific amount of punitive damages, but, if you don’t ask for punitive damages in the Complaint, the jury cannot award them even if they want to.
The burden of proof is on you, the plaintiff, to prove that the defendant’s conduct is bad enough to warrant punitive damages. What do you have to prove?
What you must prove is that the defendant’s conduct was willful, wanton, or reckless. It could be intentional, or it could be grossly negligent– negligence that is so shocking, jurors will want to punish the defendant to prevent it from happening again.
The standard of proof for punitive damages in SC is clear and convincing evidence– somewhere in between a preponderance of the evidence (50% – the standard for liability in a civil case) and beyond any reasonable doubt (the standard of proof in criminal cases).
When you ask for punitive damages, the defendant is entitled to what is called a bifurcated trial.
The first part of the trial is for the jurors to determine whether the defendant is liable and how much they owe to you for compensatory damages. Then, there is a second proceeding where the jurors separately decide whether punitive damages are appropriate and how much should be awarded.
Once you have established that punitive damages are appropriate, jurors consider a number of factors to determine the amount of punitive damages, including how severe the defendant’s conduct was, how long it went on and whether the defendant tried to hide it, whether it has happened before, whether the defendant profited from the conduct, and the defendant’s ability to pay.
It doesn’t matter how much the jurors award in punitive damages if they are capped by the legislature – regardless of the jurors’ decision, punitive damages are limited to three times the compensatory damagesor$500,000, whichever is more.
When the defendant’s conductcould have resultedin a felony conviction – whether they were charged in criminal court or not – the cap is increased to four times the compensatory damages or two million dollars.
When the defendanthas been convictedof a felony related to their conduct, there isno capon punitive damages.
There is also no cap on punitive damages when the at-fault driver in a car wreck was intoxicated by drugs or alcohol– whether they were convicted of DUI or felony DUI or not, if you prove that they were drunk at the time of the accident there is no cap on punitive damages.
Getting a huge verdict in your case is one thing – getting you paid is another matter altogether. A verdict or judgment is just a piece of paper until we collect on it.
What issues could prevent you from getting the money you were awarded in a jury verdict?
If we get a record-breaking verdict in your personal injury case, you better believe the defense attorneys will look for grounds to file an appeal. What then?
An appeal could take years to make its way through the courts, while you are waiting for a check. When you win your appeal, they may be required to pay post-judgment interest which increases your recovery, but that is small consolation if you need money now for medical expenses and other compensation.
Some cases may settle while they are on appeal, while others just have to go through the process before the verdict is finalized – whether a case settles, whether you fight through the appeal process, or whether you settle a case before a verdict to avoid appeal will depend on the facts of your case and your circumstances.
If your defendant is a large, multi-national corporation, or a wealthy person with assets, you may not have to worry about policy limits.
On the other hand, in many cases, insurance coverage may be the only source of compensation – in these cases, you will have to accept the policy limits for all policies that provide coverage. SC law allows you to “stack” coverage from multiple policies, but, when the coverage runs out, policy limits may be the maximum amount you can recover.
Many businesses and individuals who are ordered to pay a verdict will write the check after trial – insurance companies, for example, will pay what the courts order them to pay.
When there is limited insurance coverage or a verdict in excess of policy limits, however, some defendants will refuse to pay. When this happens, if the defendant has the means to pay or assets that we can get to, you may need to take additional steps to force them to pay what they owe, like asking the sheriff to execute the judgment against any property that the defendant owns…
Don’t leave money on the table when punitive damages are available in your case – if you were injured by someone who was notjustnegligent butgrosslynegligent, or whointentionallyhurt you, punitive damages should be part of any settlement negotiations.
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