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Wischer v. Mitsubishi Heavy Industries America9/30/2003
ANEL MEMBER]: So under Loveridge, under the new statute, there would be punitive damage coverage?
[PLAINTIFFS' COUNSEL]: Yes. You can have punitive -- You obviously --
[PANEL MEMBER]: But there wasn't punitive damage coverage under the old law. So you're saying that there's more coverage under the new law than the old law?
[PLAINTIFFS' COUNSEL]: No, I'm not. I'm saying under the new law, there is no requirement that you have to show that the actor intended bodily harm in a bodily injury case or property right harm in a property injury case because that makes the second clause a nullity and superfluous, and the cases have not said that.
[PANEL MEMBER]: No. I think you just put your finger on the crux, because under your reading of 895.85, there would be punitive damages under Loveridge, but under the common law, there is no punitive damages under Loveridge. Therefore, an expansion of the scope of punitive damages rather than a restriction of the scope of punitive damages.
Although plaintiffs' counsel attempted to deny the effects of his interpretation, he was unsuccessful. His interpretation of the statute, both under the facts of Loveridge and under the facts here, would expand the scope of punitive damages awards in clear contravention to the intent of the legislature when it enacted § 895.85(3). If punitive damages would be awarded under his interpretation of the statute in a case where punitive damages were not appropriate under the common law, then his interpretation would not "heighten the standard for recovery of punitive damages." Boomsma, 202 F. Supp. 2d at 880. Rather, it would lower the standard.
. The dissent's analysis of the statute is unreasonable and would lead to absurd results. After conceding that the legislature intended to heighten the standard for punitive damages, it disregards the consequences of that action. Based on that disregard, the dissent goes on to explain why there is no need to bring an intent to harm element into the statute. If the dissent's interpretation is correct, instead of narrowing the scope of punitive damages with the enactment of Wis. Stat. § 895.85(3), the legislature has not only opened the door wider, but knocked down the entire wall. If we apply the dissent's interpretation, practically any ordinary negligence case will permit an award of punitive damages. Under the dissent's interpretation, anyone who is negligent could be considered to be intentionally disregarding the rights of someone. Examples are numerous: someone who is drinking a cup of coffee while driving, or eating while driving, or adjusting the radio while driving, or even driving over the speed limit. In each of these examples, an injured plaintiff could argue that the tortfeasor driver intentionally disregarded the rights of the other drivers on the road, and thus justify a punitive damage award. Such an interpretation is simply illogical. The only reasonable interpretation of § 895.85(3) is to apply the definition of "intentional" used within the statute as the legislature instructed. Thus, the statute requires both an intent to do an act and an intent that harm will result or knowledge that harm is practically certain to result. We are not adding words to the language of the statute; we are simply applying it as the legislature intended.
. Based on the foregoing, we hold that the trial court's interpretation of the statute was erroneous. The correct interpretation demands that the phrase "intentional disregard of the rights of the plaintiff" be defined to mean either that the actor intended to cause the accident or injury or the actor was practically certain that his conduct could result in accident or injury.
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