Many publicized cases emphasize the egregious nature of defendant’s conduct. Media stories make a connection between reprehensible actions in the amount of money awarded. In Washington, we don’t have punitive damages. Emphasizing – or perhaps more accurately – overemphasizing the wrongfulness of defendant’s conduct almost always backfires.
Because punitive damages aren’t available in Washington, there’s no upside to alleging that one person tried or intended to hurt another. In fact, these kinds of allegations frequently give the defendant’s insurance carrier an opportunity to deny coverage for a specific incident. We have handled a number of motor vehicle accident cases where our clients initially emphasized their belief that the at-fault driver tried to hit them. Not only does this subjective impression not add value to their case, it would likely void or eliminate any insurance coverage available for their damages.
The same thing comes up in cases where good-natured fun or rough-housing takes on a more serious tone and someone gets hurt. In these cases, even though the action that led to the injury may have been intentional, it’s important to emphasize the defendant was negligent. Negligence typically plays a role in terms of decision making.
We had a recent case where a client pretended to push another person into a pool. The other person grabbed our client and threw him in. Both men laughed about it. Our client thought the incident was over but the man who pushed him in the pool (who had been drinking) decided to carry on. He tackled our client and knocked him into the pool a second time. The tackle fractured the bone in our client’s leg. The man’s insurance company denied coverage alleging that the tackle was an intentional act.
Our client wanted to emphasize that, yes, the man who tackled him intended the consequences of his actions. We counseled that this would be the wrong way to approach the claim and it would be better to say the intoxicated man made an unreasonable decision (in other words acted negligently) when he tackled our client. This strategic "packaging" of the claim breathed life back into the case.