61 For practical rather than such theoretical reasons numerous pieces of state

61 for practical rather than such theoretical reasons

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61 For practical rather than such theoretical reasons, numerous pieces of state and federal
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Page 21 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 legislation now add a variety of controls, ranging from elimination of punitive damages, elimination of punitive damages in certain causes of action, caps, ratios, and diversion of portions of the money (or "kickers") to public funds so the total amount of compensation does not go to the plaintiff. The most common form of intervention has been to cap the punitive damages at three times the compensatory award. Additionally, there are constitutional limitations (both federal and state) on the awards of punitive damages (see generally L. L. Schlueter and K. R. Redden, Punitive Damages (4th ed. 2000), vol. 1, c. 3). [page632] 62 The standard of behaviour required to trigger an award of punitive damages in the United States is usually formulated in the epithets (malicious, high-handed, oppressive, outrageous, etc.) familiar to Canadian courts. 63 In the absence of statutory intervention, the appellate courts in the United States impose a measure of discipline usually based on constitutional due process considerations. In BMW, supra, the Alabama trial jury awarded punitive damages of $4 million. The Alabama appellate court substituted an award of $2 million, which the U.S. Supreme Court quashed as so "grossly excessive" as to be unconstitutional. In its view, BMW's conduct was not particularly reprehensible and there was an unacceptable ratio of 500:1 between the punitive damages and the actual harm. The issue of quantum was remitted to the Alabama courts and Dr. Gore's roller coaster ride in the courts terminated in $50,000 in punitive damages: BMW of North America, Inc. v. Gore, 701 So.2d 507 (Ala. 1997). In the case of Liebeck, supra, the jury's award of $2.7 million in punitive damages for a hot coffee burn was reduced to $480,000 by the trial judge, and the parties settled the case before appeal. 64 The United States Supreme Court has consistently rejected the suggestion of a mechanical or "mathematical formula" or "bright line" for determining whether a punitive damage award is constitutional. In the 1991 case of Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991), Blackmun J., for the majority, concluded that punitive damages were not per se unconstitutional and held that the punitive damages award in that case, though "close to the line" (p. 23), did not violate due process despite being a multiple of four times the compensatory damages and much exceeding the amount set by state legislation for insurance fraud. [page633] The court approved the relatively loose instructions to the jury in that case. O'Connor J. in dissent, at p. 51, objected to the lack of more specific direction. She instead proposed standards that would include factors such as (1) whether the punitive award had a reasonable relationship to the harm; (2) the defendant's conduct, including any cover-ups, length of conduct and patterns of similar conduct; (3) the defendant's profits; (4) the criminal sanctions against the defendant; (5) the litigation
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