Law.com Subscribers SAVE 30%
Call 855-808-4530 or email GroupSales@alm.com to receive your discount on a new subscription.
Determining the Financial Condition of an Insurance Carrier
Punitive damages long have been awarded 'to punish wrongdoers and thereby deter the commission of wrongful acts … ' Neal v. Farmers Ins. Exch., 21 Cal. 3d 910, 928 n.13, 148 Cal. Rptr. 389, 399 n.13 (1978). In order to accurately determine how large a punitive damage award should be, the financial condition of a defendant must be evaluated. If a punitive damage award is not large enough, then it is not likely to have any deterrent effect. Instead, because it simply would be a cost of doing business, it actually may serve as an incentive to further wrongful conduct. Therefore, in order to accurately determine how much of a punitive damage award is enough, but not too much, the financial condition of an insurance carrier needs to be evaluated. Id. at 928 (the wealth of defendant must be considered or else 'the function of deterrence … will not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort'); Adams v. Murakami, 54 Cal. 3d 105, 111-12, 284 Cal. Rptr. 318, 321 (1991) ('The most important question is whether the amount of the punitive damages award will have deterrent effect ' without being excessive … This balance cannot be made absent evidence of the defendant's financial condition.').
The financial condition of the carrier typically is judged at the time of trial, but it is appropriate to consider the carrier's future financial prospects and ability to borrow money. In Rufo v. Simpson, 86 Cal. App. 4th 573, 103 Cal. Rptr. 2d 492 (2001), for example, the court addressed the propriety of the punitive damages award against O.J. Simpson. Simpson challenged the punitive damage award, arguing that the amount of the award exceeded his net worth. The court of appeal affirmed the trial court's decision, stating:
Although net worth is the most common measure of the defendant's financial condition, it is not the only measure for determining whether punitive damages are excessive in relation to that condition. Id. at 624.
The court noted that there are a variety of factors that can be considered, including a defendant's future financial prospects. See Model Punitive Damages Act '7(a) (listing nine factors to be considered by a jury in determining the amount of punitive damages).
A similar conclusion was reached in Zaxis Wireless Communications, Inc. v. Motor Sound Corp., 89 Cal. App. 4th 577, 582, 10 Cal. Rptr. 2d 308, 312 (2001). In Zaxis, the defendant challenged a punitive damage award of $300,000, arguing that it had a negative net worth of $6.3 million. The court of appeal refused to accept a defendant's net worth as the governing standard, noting that '[n]et worth is too easily subject to manipulation to be the sole standard for measuring a defendant's ability to pay.' The court then discussed other evidence:
Perhaps the most compelling evidence of [the defendant's] ability to pay was … testimony that as of the time of trial, [defendant] had a credit line of $50 million of which $5.3 million dollars was unexpended at the end of 1999. This line of credit indicates the lender made a determination [defendant] had the ability to pay amounts well in excess of the $300,000 punitive damage award. Id. at 583.
These decisions indicate that insureds can point to a carrier's various economic factors, such as projected future premium collections and credit lines, as a basis to argue that the amount of punitive damages should be greater than the carrier's net worth might otherwise suggest.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?