WPI35.01Exemplary or Punitive Damages
Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 35.01 (6th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
December 2017 Update
Part IV. Damages
Chapter 35. Exemplary Damages
WPI 35.01 Exemplary or Punitive Damages
(No instruction is set forth.)
Exemplary or punitive damages are generally not recoverable under Washington law unless expressly authorized by statute. Grays Harbor County v. Bay City Lumber Co., 47 Wn.2d 879, 289 P.2d 975 (1955); Anderson v. Dalton, 40 Wn.2d 894, 246 P.2d 853, 35 A.L.R.2d 302 (1952).
Punitive damages are contrary to Washington's public policy. E.g., Dailey v. North Coast Life Ins. Co., 129 Wn.2d 572, 574, 919 P.2d 589 (1996). The Supreme Court held that the Legislature, in enacting the state Law Against Discrimination (RCW Chapter 49.60), which allows for “any other remedy authorized by … the United States Civil Rights Act of 1964 as amended,” had not unambiguously manifested an intention to make punitive damages available. Dailey v. North Coast Life Ins. Co, 129 Wn.2d at 575–77.
When federal claims allowing for punitive damages are presented in Washington courts, practitioners and trial judges should consult the 9th Circuit's volume on pattern jury instructions. In Sintra, Inc., v. City of Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997), the Supreme Court approved the punitive damages instructions given by the trial court on a claim under 42 U.S.C. § 1983. Those instructions informed the jury that punitive damages could be awarded only for conduct that was “malicious or taken in reckless disregard of plaintiffs' rights” and that “punitive damages, if any, should be in an amount sufficient to fulfill their purposes of punishing reprehensible conduct and deterring the defendants and others from similar conduct.” Sintra, Inc., v. City of Seattle, 131 Wn.2d at 662.
The due process clause of the U.S. Constitution requires that punitive damages bear a “reasonable relationship” to compensatory damages. “Unlike the initial damage calculation, determining the constitutional ceiling on a punitive damage award is a question of law, properly reserved for the court. Although states are certainly free to incorporate the reasonable relationship concept into jury instructions, it is also constitutionally permissible for a district court to delay the reasonable relationship inquiry until the judge's post-verdict review.” White v. Ford Motor Co., 500 F.3d 963, 974 (9th Cir. 2007) (citations omitted).
In Exxon Shipping Co. v. Baker,U.S. , 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (a case arising under federal maritime jurisdiction), the U.S. Supreme Court expressed its ongoing constitutional concern over the “stark unpredictability” of punitive damage awards. 128 S.Ct. at 2625. The Court surveyed several states' pattern jury instructions on punitive damages before concluding that the exercise left it “skeptical that verbal formulations, superimposed on general jury instructions, are the best insurance against unpredictable outliers.” 128 S.Ct. at 2628. Accordingly, sitting in that case as a “common law court of last review,” it ruled in favor of “pegging punitive to compensatory damages using a ratio or maximum multiple.” 128 S.Ct. at 2629. It would appear that this mathematical work can be done by the jury, the judge, or a combination of the two.
[Current as of June 2009.]
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