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Jessen v. National Excess Insurance Co.6/22/1989
not support awards of punitive damages because of their quasi-criminal nature. The purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant and to deter "conduct involving some element of outrage similar to that usually found in crime." Restatement (Second) of Torts, § 908 Comment b (1979); see also W. Prosser, Handbook on the Law of Torts § 2, at 9 (4th ed. 1971).
Recently there has been considerable national debate over punitive damages awards in civil cases. Annotation, Standard of Proof As to Conduct Underlying Punitive Damage Awards - Modern Status, 58 A.L.R. 4th 878 (1987). Challenges to punitive damages usually focus on whether they violate: (1) the eighth amendment prohibition against excessive fines or (2) the fifth and fourteenth amendments due process guarantees. 5 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Action, § 40.15 - (1988). Punitive damages awards are similar to criminal convictions, and defendants should be accorded procedural safeguards similar to those in criminal cases, including a burden of proof higher than the civil standard. Id. at § 40.15 ; see also J. Ghiardi & J. Kircher, Punitive Damages Law and Practice, § 3.03 (1984).
We currently allow a punitive damages award if a plaintiff can meet a preponderance of the evidence burden of proof. United Nuclear Corp. v. Allendale Mutual Ins., 103 N.M. 480, 485, 709 P.2d 649, 654 (1985). I believe a greater burden of proof should be required whereby a plaintiff can recover compensatory damages upon proof by a preponderance of the evidence but can be awarded punitive damages only upon proof by clear and convincing evidence. E. g., Linthicum, 150 Ariz. 326, 723 P.2d 675 (1986); Tuttle v. Raymond, 494 A.2d 1363 (Me. 1985); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d, 437. Before awarding punitive damages a factfinder would thus be required to find there was clear and convincing evidence a defendant acted fraudulently, or with malicious intent as construed in Curtiss v. Aetna Life Ins. Co., 90 N.M. 105, 560 P.2d 169 (Ct. App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976).
For the reasons set forth, I dissent from the majority opinion.
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