Can a Defendant’s Conduct Affect the Amount of Damages?

The conduct of a defendant in a personal injury or wrongful death claim can have a profound influence on the amount of money that the injured victim eventually recovers. Conduct matters not only at the time of the accident, but during litigation. Your attorney can use bad behavior by the defendant to your advantage even during settlement negotiations.

What type of damages are available?

Three types of damages are generally available in US personal injury courts—economic damages, noneconomic damages, and, in rare cases, punitive damages (depending on the state). You must prove your entitlement to economic and non-economic damages by “a preponderance of the evidence”– essentially, a 51% or greater degree of certainty. This is a much easier standard to meet than the “beyond a reasonable doubt” standard that applies to criminal trials.

Economic damages

Economic damages compensate you for losses that you can easily count. Typical economic damages include medical expenses, lost earnings (during recovery), and out-of-pocket expenses like child care or housekeeping jobs that you cannot do while injured.

Noneconomic damages

Noneconomic damages compensate you for intangible losses that are difficult to count, such as pain and suffering, emotional distress, loss of enjoyment of life, disfigurement, etc. Plaintiffs are surprised to learn that these damages often add up to a larger number than the amount of economic damages. If your economic damages are $3,000, for example, your noneconomic damages could range from $6,000 to $15,000.

Punitive damages

Punitive damages are a special amount a court awards the plaintiff to punish the defendant for particularly bad behavior. The purpose of punitive damages is not to compensate the injured person, it’s to punish the defendant. Nevertheless, the money still goes to the plaintiff. Courts are reluctant to award punitive damages even when plaintiffs win economic and noneconomic damages.

Unfortunately, Washington doesn’t offer punitive damages except under very limited circumstances defined by statute. For instance, in consumer protection claims, the law allows courts to award up to three times the damages in a way that is similar to how punitive damages may work in other states because it’s meant to deter bad behavior. However, in most cases, including car accident or medical malpractice claims, nothing like punitive damages will be allowed.

Depraved conduct by the defendant and its effect on a jury

The reality is that you cannot reduce liability to a mathematical formula, at least with a jury. Juries are human and they respond to bad behavior on the part of the defendant with consequences that are essentially punitive, even if they don’t call it punitive damages. If the defendant’s behavior was outrageous enough, juries respond.

Leaving the scene of an accident/hit and run

One common but serious form of misconduct is fleeing the scene of an accident. Juries frequently treat hit-and-run behavior as indicative of guilt, recklessness, or a total disregard for the plaintiff’s safety. In both Washington and Oregon, fleeing the scene is a criminal offense. In civil court, evidence that the defendant left the scene of an accident can:

• Serve as evidence that the defendant knew they were liable for the accident
• Discredit the defendant’s comparative fault defense
• Allow the plaintiff to argue that they suffered additional trauma due, thereby justifying larger noneconomic damages

Other ways of seeking to avoid accountability, such as refusing to provide insurance or personal details, can have the same effect.

Intent, behavior, and punitive damages

Unlike Washington, Oregon does allow punitive damages under just the right circumstances. The defendant’s conduct must have exhibited:

• Malice – intentionally wrongful behavior
• Intent to injure– A purposeful desire to injure another
• Reckless indifference to the welfare of others

This sort of carelessness goes beyond negligence or even gross negligence. To justify punitive damages, the defendant’s behavior must have been outrageous. You must also prove it by “clear and convincing evidence.” This standard is more difficult to meet than the “preponderance of the evidence” standard, but easier to meet than the “beyond a reasonable doubt” standard.

Bad faith during litigation

Sometimes the defendant’s behavior spills over into the litigation process. When this happens, courts and juries handle it differently. Post-accident bad behavior designed to interfere with or obstruct the judicial process includes:

• Spoliation of evidence—deleting dashcam footage after a car accident, for example.
• Destroying or altering evidentiary documents, such as a contract. This kind of misbehavior might also include concealing documents or refusing to respond to a subpoena.
• Lying or misleading investigators or the court. Lying under oath, of course, is a crime.
• Unnecessary delay of proceedings. This might mean filing frivolous motions, for example.

A court might respond to this behavior by allowing the jury to draw an adverse inference. If the defendant destroys evidence, for example, the court might allow the jury to conclude that the defendant destroyed the evidence because it was unfavorable to them. A court might also impose sanctions on a defendant who commits misconduct.

In the most outrageous cases, a court might impose contempt of court penalties against the defendant. In extreme cases this might even include jail time.

How to make a claim for more damages because of bad behavior

Plaintiffs’ attorneys should always be on the lookout for ways that the defendant’s behavior might bolster the plaintiff’s claim. Key strategies include:

• Emphasizing patterns of recklessness
• Filing early motions to compel and preserve evidence
• Requesting jury instructions that permit the jury to draw an adverse inference from the spoliation of evidence
• Introducing post-incident bad behavior conduct to discredit the defendant

In settlement negotiations, the plaintiff’s attorney can use defendant misconduct as bargaining leverage. The defendant is more likely to agree to a generous settlement than face a hostile jury in court.

Insurance bad faith claims

Insurance companies must act in good faith when dealing with personal injury claimants. If they treat you dishonestly, unfairly, or outrageously, you can file a bad faith claim against them. Insurance bad faith is a separate claim from the personal injury claim that led you to file an insurance claim in the first place. That means that with a successful insurance bad faith claim you can collect a second separate type of recovery.

Examples of insurance bad faith include unreasonably delaying or denying coverage, delaying payment, and misrepresenting the terms of the policy. Oregon does not generally recognize third-party bad faith claims, although Washington does. A viable bad faith claim can give you bargaining leverage in settlement negotiations, even if you never go to trial.

We will relentlessly pursue justice for you

It’s not just whether you win or lose. It’s how much you win. You deserve full compensation for all of your losses, both tangible and intangible. At Philbrook Law, our personal injury and wrongful death attorneys offer you conscientious and aggressive representation throughout the states of Washington and Oregon. Don’t worry about money. Under our contingency fee system, you pay zero attorney’s fees unless we win your case.