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‘What we’re telling people is, “Stop driving drunk,”’ Upper Marlboro solo practitioner Robert J. Zarbin says of a bill that would allow victims of drunk drivers to seek punitive damages during civil trials. The bill is opposed by automobile insurance companies, which argues that punishing drunk drivers is up to the criminal justice system. (File)

Victims’ lawyers, insurers battle over Md. drunk-driving liability bill

ANNAPOLIS – Legislation to enable victims of drunk drivers to seek punitive damages drew strong support from plaintiffs’ lawyers but scorn from automobile insurance companies Tuesday.

Attorney Robert J. Zarbin, who represents victims, told the Senate Judicial Proceedings Committee that the civil liability system in cases of patently dangerous behavior, such as driving drunk, must go beyond merely compensating the victims and punish the wrongdoers.

“What we’re telling people is, ‘Stop driving drunk,’” Zarbin, an Upper Marlboro solo practitioner, said on behalf the Maryland Association for Justice, which represents plaintiffs’ attorneys. “This is a public-policy decision. That’s why we elect you.”

But H. Barritt Peterson Jr., on behalf of State Farm Mutual Automobile Insurance Co., said the punishment of drunk drivers is the province of the criminal justice system, which he added can and should prosecute, imprison and demand restitution from the person who drinks, drives and injures someone.

Imposing punitive damages on drunk drivers, by contrast, would rarely punish them, as their automobile insurance companies would rather settle the claim than risk a court-ordered award, Peterson said.

“The drunk won’t pay more; the insurance will pay more,” Peterson said. “It is about the insurance claim. It is not about the drunk.”

The pending legislation, Senate Bill 302, would enable drunk drivers to be held liable for punitive damages if they have a conviction for drunk driving within the past five years and caused the victim’s death or other injury by driving a motor vehicle while having a blood alcohol concentration of at least 0.08.

Under the legislation, punitive damages would have to be justified by “clear and convincing evidence” and would be available only in cases where the victim has been awarded compensatory damages for injuries. The victim would also have to include a claim for personal damages in their complaint, and not first raise the claim during trial.

Judges would be permitted to review a jury’s award for punitive damages, which must be reduced if it is “disproportionate” to the award of compensatory damages or “disproportionate to the [driver’s] conduct, taking into account the gravity and continuing nature of the conduct.”

Sending a message

Sen. Jamin B. “Jamie” Raskin, the bill’s chief sponsor, said SB 302 carves out an exception for drunk driving from Maryland’s current personal-injury law, which permits punitive damages to be awarded only when the defendant acted with evil motive, intent to injure or ill will.

Raskin said the exception is justified based on the scourge of drunk driving, which warrants “the moral condemnation of society.”

He cited Montgomery County police officer Noah Leotta, 24, who was struck and killed in December by a suspected drunk driver during a traffic stop involving another motorist. Leotta was on a police task force that enforced laws against drunk driving.

Permitting punitive damages against drunk drivers would be “a statement by Maryland that we do not accept this kind of conduct, that it is intentional conduct,” said Raskin, D-Montgomery and a member of the Senate committee. “We cannot pretend this is a game of bumper cars where whatever happens, happens. We have to raise the costs of drunk driving across the board.”

But Sen. H. Wayne Norman Jr., R-Harford and Cecil, voiced concern about civil legislation aimed at extracting “a pound of flesh” from defendants through awards of punitive damages.

Norman, a member of the Senate committee, said civil litigation is designed to provide “compensation” to victims of drunk driving, while Maryland’s criminal statutes are aimed at exacting “retribution” against the driver.

SB 302 has been cross-filed in the House of Delegates. Del. William C. Smith Jr., D-Montgomery, is the chief sponsor of House Bill 864.