United States: Sky's The Limit? A 50-State Survey Of Damages Caps And The Collateral Source Rule

 Many state legislatures across the country have enacted statutory measures to limit the amount of compensatory and/or punitive damages recoverable by plaintiffs in a civil lawsuit. These limitations and the rationale behind them vary, sometimes widely and sometimes fractionally, from state to state. Similarly, many states have created varying rules regarding the scope and applicability of the collateral source rule, which states generally that "[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable." Restatement (Second) of Torts § 920A. In states where damages caps and/or the collateral source rule apply, early case analysis and even settlement evaluation will necessarily require an examination of these provisions. To assist in this examination, the following is a survey detailing each state's damages cap provisions and the applicability of the collateral source rule.

ALABAMA

In Alabama, state statute limits punitive damages to up to three times compensatory damages or $500,000, whichever is greater. Ala. Code § 6-11- 21(a). Punitive damages awards against small businesses (defined as having $2 million or less in net worth at the time of the occurrence) are capped at $50,000, or 10 percent of the business' net worth, whichever is greater. Ala. Code § 6-11-21(b)–(c). In cases involving physical injury, the cap is raised to $1.5 million. Ala. Code § 6-11-21(d). These caps are removed altogether in actions for wrongful death or intentional infliction of physical injury. Ala. Code § 6-11-21(j). There is no corresponding cap on compensatory damages. In product liability actions, when evidence of collateral source payments is admitted, the plaintiff is entitled to introduce evidence of the cost of obtaining those payments, which are considered recoverable as damages. Ala. Code § 6-5-522.

IN STATES WHERE DAMAGES CAPS AND/OR THE COLLATERAL SOURCE RULE APPLY, EARLY CASE ANALYSIS AND EVEN SETTLEMENT EVALUATION WILL NECESSARILY REQUIRE AN EXAMINATION OF THESE PROVISIONS.

ALASKA

Alaska law caps punitive damages at three times compensatory damages or $500,000, whichever is greater. Alaska Stat. § 09.17.020(f). If the conduct is "motivated by financial gain and the adverse consequences of the conduct were actually known by the defendant," the cap is raised to four times compensatory damages, four times the aggregate amount of financial gain received by the defendant as a result of the misconduct, or $7 million, whichever is greater. Alaska Stat. § 09.17.020(g). Fifty percent of all punitive damages awards are deposited into the state's general fund. Alaska Stat. § 09.17.020(j). Non-economic damages are capped at the greater of $400,000 or the injured party's life expectancy in years multiplied by $8,000. Alaska Stat. § 09.17.010(b). This cap is raised to the greater of $1 million or $25,000 multiplied by the plaintiff's life expectancy in the event of "severe permanent physical impairment or severe disfigurement." Alaska Stat. § 09.17.010(c). Alaska allows a post-verdict reduction in damages by the amounts received or to be received by the claimant as compensation for the same injury from collateral sources that do not have a right of subrogation by law or contract. Alaska Stat. § 09.17.070.

ARIZONA

While there is no stated cap on punitive damages, and the Arizona Constitution prohibits passing a law that would limit the amount of damages in personal injury or wrongful death actions, Arizona case law has interpreted the Due Process Clause to prohibit grossly excessive or arbitrary awards. See Ariz. Const., art. II, § 31; Security Title Agency, Inc. v. Pope, 200 P.3d 977, 997–98 (Ariz. Ct. App. 2008). There is no cap on compensatory damages. Arizona generally applies the collateral source rule to allow a plaintiff to recover damages even if they were not actually sustained. See Lopez v. Safeway Stores, Inc., 129 P.3d 487, 496 (Ariz. 2006).

ARKANSAS

The Arkansas Supreme Court declared unconstitutional a previously enacted statute capping punitive damages. See Bayer CropScience LP v. Schafer, 385 S.W.3d 822, 829–32 (Ark. 2011). There is no cap on compensatory damages. The collateral source rule applies in Arkansas. In fact, a statute limiting the recovery of certain medical expenses was declared unconstitutional in contravention of separation of powers, though it was also challenged on collateral source grounds. Johnson v. Rockwell Automation, Inc., 308 S.W.3d 135 (Ark. 2009).

CALIFORNIA California has no cap on either punitive or compensatory damages, and the collateral source rule applies. See Howell v. Hamilton Meats & Provisions, Inc., 257 P.3d 1130 (Cal. 2011).

COLORADO

In Colorado, punitive damages cannot exceed the amount of compensatory damages awarded. Colo. Rev. Stat. § 13-21-102(1)(a). Though economic damages are not capped, non-economic damages cannot exceed $468,000, which may be increased by the court upon clear and convincing evidence to a maximum of $936,030. Colo. Rev. Stat. § 13- 21-102.5(3)(a). Colorado statute also reduces the verdict award by the amount paid by a collateral source; however, no reduction is allowed where the collateral payment arises from contractual obligations intended to benefit the injured party, such as private insurance or social security payments. Colo. Rev. Stat. § 13-21-111.6.

CONNECTICUT

Connecticut does not cap compensatory damages, but in product liability actions, punitive damages cannot exceed two times the amount of compensatory damages awarded and can only be awarded "if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product." Conn. Gen. Stat. 52-240b. Connecticut statutory law reduces the verdict award by the amount paid by a collateral source. Conn. Gen. Stat. § 52-225a(a)–(b).

DELAWARE

There are no caps on either compensatory or punitive damages in Delaware. In terms of collateral source, Delaware law allows for the recovery of the reasonable value of medical expenses, not only the amount actually paId. See Mitchell v. Hunter, 883 A.2d 32 (Del. 2005); Onusko v. Kerr, 880 A.2d 1022 (Del. 2005).

DISTRICT OF COLUMBIA

The District of Columbia does not cap either compensatory or punitive damages, and the collateral source rule applies. See Hardi v. Mezzanotte, 818 A.2d 974, 984 (D.C. 2003).

FLORIDA

There are no caps on compensatory or punitive damages in Florida. In negligence cases, a court must reduce an award of economic damages by "all amounts that have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources." Fla. Stat. § 768.76(1). However, there is no reduction for collateral source payments for which there is a right of subrogation. Id. Any reduction is also offset by any amount paid by the claimant or a family member in order to secure the collateral payment. Id.

GEORGIA

Compensatory and punitive damages are not capped in Georgia. The collateral source rule applies to bar admission of any evidence as to payments of medical, hospital, disability income, or other expenses of a tortious injury paid for by a plaintiff, governmental entity, or third party and taking credit towards the defendant's liability in damages for such payments. Candler Hosp. v. Dent, 491 S.E.2d 868 (1997).

HAWAII

Hawaii does not place a cap on punitive damages, but non-economic damages are capped at $375,000. Hawaii law also provides for the recovery of the "reasonable value" of medical expenses. See Bynum v. Magno, 101 P.3d 1149, 1155–57 (2004). Discounted amounts paid by Medicare/Medicaid are inadmissible pursuant to the collateral source rule. See Id. at 1157.

IDAHO

Idaho caps non-economic damages at $250,000, but the cap is subject to increase or decrease in accordance with the average annual wage. Idaho Code Ann. § 6-1603(1). Punitive damages are capped up to three times compensatory damages or $250,000, whichever is greater. Idaho Code Ann. § 6-1604(3). Idaho law prevents double recovery due to collateral source payments. Although the plaintiff is allowed to present evidence of incurred medical expenses, the damages plaintiff is entitled to recover should be reduced by the amount actually paid by sources such as Medicare and Medicaid, and for which plaintiff is not obligated. Collateral sources shall not include: (1) "benefits paid under federal programs which by law must seek subrogation;" (2) "death benefits paid under life insurance contracts;" (3) "benefits paid by a service corporation organized under chapter 34, title 41, Idaho Code;" and (4) "benefits paid which are recoverable under subrogation rights created under Idaho law or by contract." Idaho Code Ann. § 6-1606; see also Dyet v. McKinley, 81 P.3d 1236 (Idaho 2003).

ILLINOIS

Illinois does not have a cap on either compensatory or punitive damages, and the collateral source rule applies. See Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008).

INDIANA

While there is no cap on compensatory damages in Indiana (except in the medical malpractice context), punitive damages are capped at the greater of three times compensatory damages or $50,000, whichever is greater. Ind. Code § 34-51- 3-4. In terms of collateral source, courts will allow the admission of evidence of collateral source payments except: (1) life insurance payments or death benefits; (2) insurance benefits for which the plaintiff or members of the plaintiff's family have paid for directly; and (3) payments made by the United States or any subdivision thereof. Ind. Code § 34-44-1-2(1). Proof of the amount of money that the plaintiff is required to repay, including worker's compensation benefits, as a result of the collateral benefits received and proof of the cost to the plaintiff or to members of the plaintiff's family of collateral benefits received by the plaintiff or the plaintiff's family are also admissible. Ind. Code § 34- 44-1-2(2)–(3).

IOWA

Iowa has no cap on either compensatory or punitive damages. Evidence and argument as to the previous payment or future right of payment of actual economic losses incurred or to be incurred as a result of the personal injury for necessary medical care, rehabilitation services, and custodial care except to the extent that the previous payment or future right of payment is pursuant to a state or federal program or from assets of the claimant or the members of the claimant's immediate family is admissible under Iowa law. Iowa Code Ann. § 668.14(1). If this evidence is admitted, the court shall also permit evidence and argument as to the costs to the claimant of procuring the previous payments or future rights of payment and as to any existing rights of indemnification or subrogation relating to the previous payments or future rights of payment. Iowa Code Ann. § 668.14(2).

KANSAS

Though there is no cap on compensatory damages in Kansas (except in medical malpractice actions), punitive damages are capped at the lesser of either the defendant's annual gross income (or if inadequate, then 50 percent of the defendant's net worth) or $5 million. Kan. Stat. Ann. § 60-3702(e). Kansas follows the Restatement (Second) of Torts § 920A, which provides: "(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability;" and "(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable."

KENTUCKY

Kentucky does not cap either compensatory or punitive damages, and it applies the collateral source rule without exception and allows for the recovery of all expenses, regardless of payment to the plaintiff by a collateral source. See O'Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995).

LOUISIANA

Though Louisiana does not place a cap on compensatory damages, punitive damages are generally disfavored unless authorized by statute. As of now, punitive damages are allowable only under limited circumstances, such as intoxicated driving, criminal sexual activity with minors, and storage/disposal of toxic waste. See, e.g., La. Civ. Code Ann. Art. 2315.3. The Louisiana choice of law rules also provide that punitive damages may not be awarded except: "(1) [b]y the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or by the law of the place where the person whose conduct caused the injury was domiciled; or (2) [b]y the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled." La. Civ. Code Ann. Art. 3546. The collateral source rule applies in Louisiana. See Bozeman v. State, 879 So. 2d 692 (La. 2004).

THOUGH LOUISIANA DOES NOT PLACE A CAP ON COMPENSATORY DAMAGES, PUNITIVE DAMAGES ARE GENERALLY DISFAVORED UNLESS AUTHORIZED BY STATUTE.

MAINE Proposed legislation in Maine caps non-economic damages at $500,000 and $250,000 in wrongful death cases. See 2018 Me. Legis. Serv. Ch. 402 (H.P. 91) (L.D. 123). These caps do not apply in any other context. The collateral source rule applies. See Werner v. Lane, 393 A.2d 1329 (Me. 1978).

MARYLAND

In Maryland, there is no cap on economic or punitive damages, but non-economic damages must not exceed $845,000. Per statute, the cap on noneconomic damages increases by $15,000 on October 1 of each year. Md. Code Ann., Cts. & Jud. Proc. § 11- 108. The collateral source rule applies. See Corapcioglu v. Roosevelt, 907 A.2d 885 (Md. App. 2006).

MASSACHUSETTS

There is no cap on compensatory damages in Massachusetts (except in medical malpractice actions), but there is no entitlement to punitive damages except as provided by statute. For example, a defendant "shall be liable in . . . (3) punitive damages in an amount of not less than five thousand dollars in such cases as the decedent's death was caused by the malicious, willful, wanton, or reckless conduct of the defendant or by the gross negligence of the defendant." Mass. Gen. Laws ch. 229 § 2(3). The collateral source rule applies in Massachusetts. See Law v. Griffith, 930 N.E.2d 126 (Mass. 2010).

MICHIGAN

Compensatory damages are not capped in Michigan (except in medical malpractice cases), but punitive damages are not available except by statute. However, "exemplary damages" are awardable to compensate a plaintiff for mental anguish, humiliation, outrage, or increased injury to the plaintiff's feelings that he or she suffers due to the defendant's willful, malicious, or wanton conduct or reckless disregard for the plaintiff's rights. See Peisner v. Detroit Free Press, 364 N.W.2d 600 (Mich. 1984). The collateral source rule has been abrogated in part by statute, and the procedure for reducing a plaintiff's personal injury award by the amounts paid by a third party is set forth within that statute. See Mich. Comp. Laws Ann. § 600.6303.

MINNESOTA

There is no cap on either compensatory or punitive damages in Minnesota. Minnesota has abrogated the traditional collateral source rule by statute, which allows a reduction (upon motion) in a verdict by the amount of collateral sources paid on behalf of the plaintiff, except where a subrogation right has been asserted, but that reduction is subsequently offset by "amounts that have been paid, contributed, or forfeited by, or on behalf of, the plaintiff or members of the plaintiff's immediate family for the two-year period immediately before the accrual of the action to secure the right to a collateral source benefit that the plaintiff is receiving as a result of losses." Minn. Stat. § 548.36.

MISSISSIPPI

Mississippi currently has a $1 million cap on noneconomic damages for all civil actions except medical malpractice actions, which caps noneconomic damages at $500,000. Miss. Code Ann. § 11-1-60. Mississippi has a complicated statutory scheme for capping punitive damages, which centers on the defendant's net worth. Miss. Code Ann. § 11-1-65(3)(a). The collateral source rule is applicable and has no exceptions. See Busick v. St. John, 856 So. 2d 304 (Miss. 2003).

MISSOURI

There is no cap on compensatory damages in Missouri (except in medical malpractice cases, Mo. Rev. Stat. § 538.210), and the previous cap on punitive damages (Mo. Rev. Stat. § 510.265) was held to be unconstitutional by the Missouri Supreme Court. Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014). The collateral source rule applies. See Porter v. Toys 'R' Us-Delaware, Inc., 152 S.W.3d 310 (Mo. Ct. App. 2004).

MONTANA

There is no cap on compensatory damages in Montana. Though Montana statute caps the amount of punitive damages at $10 million or 3 percent of defendant's net worth, whichever is less, the constitutionality of this cap is uncertain. The cap was held unconstitutional by two Montana district court judges in 2014, but the Montana Supreme Court has not ruled. See Olsen v. Hyundai Motor Co., No. DV 11-304, 2014 WL 5040001 (Mont. Dist. Sept. 19, 2014); Butte Local Dev. Corp. v. Masters Grp. Int'l, Inc., No. DV-11-372, 2014 WL 2895577 (Mont. Dist. Mar. 25, 2014). Courts in Montana must reduce the amount of a verdict that was more than $50,000 if the plaintiff will be fully compensated, not including courts costs and attorney fees. There is no right to subrogation except specifically granted by state or federal law. If an insurance policy reduces the award, several factors are considered in the reduction. Mont. Code Ann. § 27-1-308.

NEBRASKA

There is no general cap on compensatory damages (except in medical malpractice cases), but Nebraska has declared punitive damages to be unconstitutional. See Miller v. Kingsley, 230 N.W.2d 472 (Neb. 1975). The collateral source rule applies generally, "[b]ut if the tort-feasor contributed in some way to the benefits provided to the injured person, then the tort-feasor might be entitled to mitigation of damages." Strasburg v. Union Pacific R.R. Co., 839 N.W.2d 273, 275 (Neb. 2013).

NEVADA

In Nevada, non-economic damages are capped at $350,000 only in medical malpractice actions. See Nev. Rev. Stat. § 41A.035. Otherwise, there is no cap on compensatory damages. Punitive damages are capped at three times compensatory damages if the compensatory damage award was greater than or equal to $100,000 and at $300,000 if the compensatory damage award was less than $100,000. Nev. Rev. Stat. § 42.005. The statute lists the claims where the cap does not apply, which includes actions for defective products. The collateral source rule applies (see Proctor v. Castelleti, 911 P.2d 853 (Nev. 1996)), but in medical malpractice actions, the defendant can present evidence of payments from a collateral source. See Nev. Rev. Stat. § 42.021.

NEW HAMPSHIRE

There is currently no cap on compensatory damages in New Hampshire after the New Hampshire Supreme Court declared a previous statute capping non-economic damages at $875,000 to be unconstitutional. See Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991). Punitive damages are unavailable per statute. N.H. Rev. Stat. § 507:16. The collateral source rule applies. See Cyr v. J.I. Case Co., 652 A.2d 685 (N.H. 1994).

NEW JERSEY

There is no cap on compensatory damages in New Jersey. Punitive damages are capped at five times compensatory damages or $350,000, whichever is greater. The cap does not apply in the context of bias crimes, discrimination, AIDS testing disclosure, sexual abuse, or drunk driving. N.J. Stat. Ann. § 2A:15-5.14. This statute also abrogates the collateral source rule. The Third Circuit Court of Appeals has held that the collateral source aspect of this statute is preempted by ERISA. Levine v. United Healthcare Corp., 402 F.3d 156 (3rd Cir. 2005).

NEW MEXICO

There is no cap on either compensatory or punitive damages in New Mexico (except in medical malpractice cases), and the collateral source rule applies. Sunnyland Farms, Inc. v. Central N.M. Elec. Co-op., Inc., 301 P.3d 387 (N.M. 2013).

NEW YORK

New York does not cap either compensatory or punitive damages. Payments from a collateral source are admissible to reduce the award after the verdict (excluding voluntary charitable contributions). N.Y. C.P.L.R. § 4545.

NORTH CAROLINA

There is no cap on compensatory damages in North Carolina (except in medical malpractice cases), but punitive damages are capped at three times compensatory damages or $250,000, whichever is greater. N.C. Gen. Stat. Ann. § 1D-25. The collateral source rule applies. See Cates v. Wilson, 361 S.E.2d 734 (N.C. 1987).

NORTH DAKOTA

In North Dakota, non-economic damages are only capped in medical malpractice actions (see N.D.C.C. § 32-42-02) and are generally uncapped otherwise. In terms of collateral source, a court may reduce the verdict based on the introduction of collateral source payments. N.D.C.C. § 32-03.2-06. However, the jury may not be told about the other source. N.D.C.C. § 32-03.2-10.

OHIO

Ohio caps non-economic damages at $250,000 or three times the amount of economic damages, whichever is greater, with a maximum of $350,000 per plaintiff and $500,000 per occurrence. Oh. Rev. Code § 2315.18. Punitive damages are capped at two times compensatory damages. If the defendant is a small employer or an individual, the cap is two times compensatory damages or 10 percent of their net worth, whichever is less, with a maximum of $350,000. Oh. Rev. Code § 2315.21. The statute contemplates certain situations where the caps on punitive damages are not applicable, such as when the injury, death, or loss resulted from the defendant's intentional conduct and the defendant has been convicted of a felony with the element of purposely/knowingly and that felony is the basis of the tort action. In terms of collateral source, a defendant can introduce evidence of any amount of collateral source except if the source has a mandatory self-effectuating federal right of subrogation, a contractual subrogation, or a statutory subrogation, or if the source pays a benefit in the form of a life insurance or disability payment. The defendant can also introduce evidence of a life insurance/disability payment when it was paid by the employer and the employer is the defendant. Oh. Rev. Code § 2315.20.

OKLAHOMA

For bodily injury cases, there is no cap on economic damages, but non-economic damages are capped at $350,000. However, if the conduct is deemed to be reckless, grossly negligent, fraudulent, intentional, or with malice, the cap is removed. 23 Okla. Stat. Ann. § 61.2. Oklahoma statute caps punitive damages at $100,000 or the amount of actual damages, whichever is greater, when the defendant is found to have acted in reckless disregard for the rights of others (Category I). 23 Okla. Stat. Ann. § 9.1(B). Category II punitive damages are capped at $500,000, twice the amount of actual damages, or the increased financial benefit derived by the defendant or insurer as a direct result of the conduct causing the injury to the plaintiff and other persons or entities, whichever is greater, when the defendant is found to have acted intentionally and with malice toward others. 23 Okla. Stat. Ann. § 9.1(C). Finally, Category III punitive damages are not capped and are appropriate only when there has been a showing by clear and convincing evidence that "[t]he defendant has acted intentionally and with malice toward others, and when "there is evidence beyond a reasonable doubt that the defendant . . . acted intentionally and with malice and engaged in conduct life-threatening to humans." 23 Okla. Stat. Ann. § 9.1(D). The collateral source rule applies in Oklahoma. See Mariani v. State ex rel. Okla. State Univ., 348 P.3d 194 (2015).

OKLAHOMA STATUTE CAPS PUNITIVE DAMAGES AT $100,000 OR THE AMOUNT OF ACTUAL DAMAGES, WHICHEVER IS GREATER, WHEN THE DEFENDANT IS FOUND TO HAVE ACTED IN RECKLESS DISREGARD FOR THE RIGHTS OF OTHERS.

OREGON

Oregon does not have a cap on compensatory damages (except in medical malpractice cases). There is no cap on punitive damages, but punitive damage awards are divided among the plaintiff (30 percent); the attorney general for deposit into the Criminal Injuries Compensation Account (60 percent); and the attorney general for deposit into the State Court Facilities and Security Account (10 percent). Or. Rev. Stat. § 31.735(1). Punitive damages are not available against healthcare providers acting without malice. Or. Rev. Stat. § 31.740. The collateral source rule has been abrogated by statute and permits a court to reduce the verdict award based on payments from collateral sources (submitted via affidavit prior to a judgment), though the collateral source evidence is not admissible. Or. Rev. Stat. § 31.580.

PENNSYLVANIA

There is no cap on compensatory damages in Pennsylvania. While there is no general cap on punitive damages, multiple statutory provisions (roughly 35) create individualized caps in various contexts such as medical malpractice, abortion notification, bad faith, trade secrets, and agricultural protections, among others. The collateral source rule applies in Pennsylvania to product liability actions, but medical malpractice legislation abrogates the rule to preclude a plaintiff from recovering damages for past medical expenses or past lost earnings that were covered by private or public benefit or gratuity, but this does not apply to life insurance, pension or profit-sharing, social security, benefits subject to repayment to Department of Public Welfare, or public benefits paid under a program under federal statute that provides for right of reimbursement, which supersedes state law. 40 Pa. Cons. Stat. § 1303.508.

RHODE ISLAND

Rhode Island has no cap on compensatory damages, and there is no general cap on punitive damages. Punitive damages are unavailable in wrongful death actions. See Simeone v. Charron, 762 A.2d 442, 449 (R.I. 2000). The collateral source rule applies generally, but the rule has been abrogated in the medical malpractice context. See R.I. Gen. Laws § 9-19-34.1.

SOUTH CAROLINA

There is no general cap on compensatory damages, except in medical malpractice actions where there are certain limitations on non-economic damages. See S.C. Code Ann. § 15-32-220. Punitive damages are capped at three times the amount of compensatory damages to each claimant or $500,000, whichever is greater; however, if the court determines that the wrongful conduct was motivated by unreasonable financial gain and that the unreasonably dangerous nature of the conduct and high likelihood of injury was approved by agent/director/officer or that the defendant's actions could subject them to a felony conviction, the cap is raised to four times compensatory damages or $2 million, whichever greater. If the court determines that the defendant had intent to harm, has pled guilty/been convicted of a felony in relation to the claim, or was under the influence of alcohol/drugs/prescription drugs/glue/aerosol/toxic vapor at the time of the alleged wrongful conduct, the cap is eliminated. S.C. Code Ann. § 15-32-530. The collateral source rule applies in South Carolina. See Citizens & S. Nat'l Bank of S.C. v. Gregory, 463 S.E.2d 317 (S.C. 1995).

SOUTH DAKOTA

There is no general cap on compensatory or punitive damages in South Dakota. There are specific caps on compensatory damages in medical malpractice and death or injury of a "voluntary rodeo contestant." S.D. Codified Laws § 21-3-13. The collateral source rule applies with a statutory exception in medical malpractice actions. See Papke v. Harbert, 738 N.W.2d 510 (S.D. 2007).

IN SOUTH DAKOTA, THERE ARE SPECIFIC CAPS ON COMPENSATORY DAMAGES IN MEDICAL MALPRACTICE AND DEATH OR INJURY OF A "VOLUNTARY RODEO CONTESTANT."

TENNESSEE

Tennessee caps non-economic damages at $750,000, which is raised to $1 million if the plaintiff suffers catastrophic injury. Tenn. Code Ann. § 29-39-102. The cap is eliminated entirely if the defendant had a specific intent to inflict serious physical injury; intentionally falsified, destroyed, or concealed records of evidence to avoid liability; was under the influence of alcohol, drugs, or any other intoxicant or stimulant; or whose actions result in a felony conviction. Id. In general, punitive damages are capped at the greater of two times the amount of compensatory damages or $500,000, and the cap is lifted if there is specific intent to inflict serious physical injury; the defendant intentionally falsified, destroyed, or concealed records of evidence to avoid liability; the defendant was under the influence of alcohol, drugs, or any other intoxicant or stimulant; or the defendant's actions resulted in a felony conviction. Tenn. Code Ann. 29-39-104. Punitive damages are not available in a civil action involving a drug or device if the drug or device conformed to FDA standards or was an over-the-counter drug or device marketed pursuant to federal regulations; was generally recognized as safe and effective and as not being misbranded pursuant to the applicable federal regulations; and satisfied in relevant and material respects each of the conditions contained in the applicable regulations and each of the conditions contained in an applicable monograph. Tenn. Code Ann. § 29- 39-104(d)(1). This exemption does not apply if the manufacturer withheld or misrepresented material information relevant to the harm the claimant allegedly suffered. Tenn. Code Ann. § 29-39-104(d) (2). The collateral source rule generally applies but has been abrogated in the medical malpractice context. See Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017).

TEXAS

In Texas, there is no general cap on compensatory damages, but there are exceptions for medical malpractice actions. Punitive damages are capped at either two times the amount of compensatory damages plus the amount equal to the amount of non-economic damages found by a jury not to exceed $750,000, or $200,000, whichever is greater. Tex. Civ. Prac. & Remedies Code § 41.008. This cap does not apply in the context of commission of certain crimes. Id. The collateral source rule applies, but the plaintiff cannot recover more than the actual expenses. Evidence can be introduced as to what the recoverable expenses actually were, and that evidence is still governed by the collateral source rule. Haygood v. De Escobedo, 356 S.W.3d 390 (Tex. 2011).

UTAH

There is no general cap on compensatory damages, but there is a $450,000 cap on non-economic damages in medical malpractice actions (though not in wrongful death actions). Utah Code Ann. § 78B-3-410; Smith v. U.S., 356 P.3d 1249 (Utah 2015). When punitive damages are awarded, the first $50,000 goes to the injured party, and any amount awarded in excess of that amount is split evenly between the injured party and the state. Utah Code Ann. § 78B-2-201(3)(a). The collateral source rule applies generally in Utah, but evidence of collateral source payments is admissible in medical malpractice actions, except where a right of subrogation exists. Utah Code Ann. § 78B-3-405.

VERMONT

Vermont does not have a cap on either compensatory or punitive damages. The collateral source rule applies. See Windsor School Dist. v. State, 956 A.2d 528 (Vt. 2008).

VIRGINIA

There is no general cap on compensatory damages in Virginia, though a statutory scheme exists to cap on such damages in medical malpractice actions. See Va. Code Ann. § 8.01-581.15. Punitive damages are capped at $350,000. Va. Code Ann. § 8.01-38.1. The collateral source rule applies in Virginia. Acuar v. Letourneau, 531 S.E.2d 316 (Va. 2000).

WASHINGTON

The Washington Supreme Court has deemed caps on non-economic damages to be unconstitutional. See Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989). Punitive damages are expressly prohibited unless authorized by statute. Algaier v. Bank of America, N.A., 2015 WL 12867009, *3 (E.D. Wash. July 23, 2015). There is no statutory exception for claims under the Washington Products Liability Act. Bryant v. Wyeth, 879 F. Supp. 2d 1214, n. 5 (W.D. Wash. 2012) ("Washington's prohibition on punitive damages applies to the WPLA claims."). The collateral source rule applies. Johnson v. Weyerhaeuser Co., 953 P.2d 800 (Wash. 1998). WEST VIRGINIA There is no general cap on compensatory damages, but a cap exists in the medical malpractice context. See W. Va. Code § 55-7B-8. There is similarly no cap on punitive damages. In West Virginia, trial courts deduct collateral source payments from the jury's verdict per statute. W. Va. Code § 55-7B-9a.

WISCONSIN

Wisconsin has no general cap on compensatory damages, but as with many other states, the legislature created a cap in the context of medical malpractice actions. Wis. Stat. Ann. § 893.55. Punitive damages are capped at two times compensatory damages or $200,000, whichever is greater. Wis. Stat. Ann. § 895.043. This cap does not apply in the DUI context. The collateral source rule applies. See Letinger v. DBart, Inc., 736 N.W.2d 1 (Wis. 2007).

WYOMING

Wyoming does not have a cap on either compensatory or punitive damages, and the collateral source rule applies, but only in tort cases. Miller v. Campbell Co., 901 P.2d 1107 (Wy. 1995).

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Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
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Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
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Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions