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The Sky is the Limit! The Tenuous State of Constitutional Limitations on Punitive Damages

One of the core principles of Constitutional law and interpretation that has recently come under greater scrutiny is the principle of substantive due process rights. Recent decisions from the United States Supreme Court have reshaped our understanding as to the viability of substantive due process protections and made clear that reliance on stare decisis may be tenuous relative to this principle.  Substantive due process protections are often framed relative to rights implicit in the concept of ordered liberty or deeply rooted in American history and tradition. However, one protection, comparatively minor in comparison, is the prohibition of excessive punitive damage awards.

Constitutional limits as to punitive damages have been acknowledged by the Court for over 100 years. See: Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73, 78 (1907).  The notion is restated in Txo Prod. Corp. v. Alliance Res. Corp. 509 U.S. 443 (1993) where it was made clear that the constitutional prohibition of excessive punitive damage awards exists through substantive due process.  In their dissent in TXO, Justice Scalia joined by Justice Thomas expressed disdain for the very existence of the proposition of substantive due process. More recently, Justice Thomas has urged in dicta that “in future cases, we should reconsider all of this Court’s substantive due process precedents…”.  This dicta and recent Supreme Court holdings have increased the uncertainty of the viability of Substantive Due Process and the holdings which rely upon it.Justice Thomas’s prior concurrence in Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 443-44 (2001) compounds concern regarding the future viability of Constitutional protections against excessive punitive damage awards. “I continue to believe that the Constitution does not constrain the size of punitive damages awards…”  Justice Thomas’s view is voiced again in his concurrence in Timbs v. Indiana, 586 U. S.  (2019) “I decline to apply the ‘legal fiction’ of due process incorporation.”, and again in his concurrence in Ramos v. Louisiana, 140 S. Ct. 1390, 1424 (2020) “Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment.”

While a bright line mathematical formula demarcating excessive vs. reasonable punitive damages was never judicially established, the due process protections were a safety valve against excessive awards.  For over 100 years, parties relied on Constitutional limitations on punitive damages when contracting, underwriting, evaluating exposure, and analyzing risk. Considering the Court’s recent shift, reliance on this long-standing precedent may not be prudent.

Lether Law Group currently represents multiple insurers in coverage litigation in State and Federal Courts in Washington, Oregon, Idaho, Alaska, Hawaii, and Louisiana. If you have questions in regard to pending insurance claims and compliance with insurance law, please feel free to contact our office.

Kevin Kay

Kevin Kay

Shareholder

   Kevin is a graduate of Pacific Lutheran University and Seattle University School of Law. He is licensed to practice in the state and federal courts of Washington and admitted to practice before the Ninth Circuit Court of Appeals. In addition, Kevin has appeared pro hac vice in courts in Louisiana and California. Kevin has represented insurers and insureds in coverage for 16 years. These claims involve personal and commercial auto policies, commercial general liability, professional liability, and E&O insurance. Kevin has also advised and represented risk pools, insurers, and insured in matters ranging from automobile/bus accidents to catastrophic landslides. His practice also includes construction defect disputes, personal injury claims, commercial leases, and significant property damage disputes.

 

Lether Law Group Welcomes 5 New Legal Professionals

Chance Laboda

Chance Laboda

Senior Associate Attorney

Chance’s practice involves insurance coverage and litigation of first and third party disputes involving both contractual and extra-contractual claims, including insurance bad faith, negligence, and violation of the Washington State Consumer Protection Act and Insurance Far Conduct Act. Chance’s experience includes coverage analysis and litigation of disputes arising from commercial general liability, business owners, and automobile insurance policies. Chance also has experience providing legal services to individuals, businesses, and real estate developers in a broad range of real estate disputes

Dan Schilling

Dan Schilling

Associate Attorney

Dan has a practice background in family law, personal injury, workers’ compensation law, and formerly worked as a public defender in the 24th Judicial District Court for Jefferson Parish in Louisiana. Dan is licensed in both Washington and Louisiana.

Ryan Bisel

Ryan Bisel

Associate Attorney

Ryan graduated from Seattle University School of Law. Ryan is a licensed attorney in Washington and has recently passed the Hawaii State Bar.

Tate Kirk

Tate Kirk

Associate Attorney

Tate has a practice background in workers’ compensation law and is licensed in both Washington and Oregon.

Matt Allinder

Matt Allinder

Rule 9 Intern

Matt earned his Juris Doctor from Loyola University Chicago School of Law. Currently working remote, he will join us at the Seattle office in June. 

April Showers Bring May Flowers — AND BABY GEESE!

For the 6th year in a row, once spring rolls around, a familiar Mother Goose returns to the back deck of Lether Law Group, where she lays her eggs. This year, Mother Goose laid six eggs in one of our gardening boxes on the back porch.

For weeks, the Lether Law Group team witnessed how tenderly Mother Goose cared for her 6 eggs. Sometimes, the Lether Law Group team would also witness Father Goose swimming from a short distance, making sure that no hunter or gatherer posed a threat to his growing family.

On May 15, 2022, Mother Goose and Father Goose officially became the happy parents of 6 little goslings. The little hatchlings, pictured below, are brightly colored yellow with a hint of green.

The next time you paddleboard, kayak, or take your boat around South Lake Union, keep a look out for these little ones. Happy Spring!

Appellate Practice Tips

Lether Law Group is engaged in appellate practice across multiple jurisdictions including multiple State Courts of Appeals and the Federal Circuit Courts of Appeal. As any experienced insurance defense litigator knows, a win at the trial level for your client is often not the end of the story. Accordingly, in this week’s newsletter, our office will share some helpful practice pointers we have gained through our litigation in the various Courts of Appeals.

            A Complete Record – The first and most essential step in any appeal is assuring you and your client have the complete trial court record. While seemingly elementary, effective appellate advocacy starts with a complete underlying record. Once the Appellant has designated the clerks’ papers and statement of arrangements, and prior to receiving a copy of those clerks’ papers, proactively cross reference opposing counsel’s designation with the trial court docket. If any relevant pleading is absent, or any potentially relevant pleading is absent from opposing counsels designated clerks’ papers, move to supplement the clerk’s papers. Failure to do so will foreclose an appellate attorney’s ability to argue a potentially relevant issue or procedural aspect before the appellate court.

           Comprehensive Legal Briefing – There is a natural tendency in appellate practice to rely partly upon the briefing at the trial court level because the issues in question were fully litigated. However, it would be an error to rely on the underlying briefing and assume it is sufficient for a review by the Court of Appeals. Rather, effective appellate practice requires a total reassessment of the underlying case from the facts as plead to the citations relied upon by the parties. The loadstar for any appeal is the standard of review. A de novo review by the Court of Appeals will requires a total reevaluation of the underlying case in a manner that a review for abuse of discretion might not. Further, the caselaw relied upon by the parties at the trial court level may have changed in the time since the trial court’s decision and should always be verified as to the holdings they purport. Accordingly, the process of drafting an appeal often requires a ground up reassessment of the facts and law surrounding the trial court’s decision.

            Patience – Appeals take time. The average lifespan of an Appeal is 18 to 24 months. Even after the Court of Appeals receives all briefing from the parties, it will often take 6 to 10 months or more to render a decision on the matter. Given this expansive timeline, it is helpful to communicate reasonable expectations to your client about the resolution their appeal. Further, it is essential to communicate with the client periodically throughout this time to inform them you are monitoring the matter throughout the lengthy appeals process.  

            Lether Law Group currently represents clients in multiple jurisdictions for their appellate matters. For questions regarding acute appeals State Courts of Appeal or the Federal Circuit Courts of Appeal, please feel free to contact our office.

Chris Kranda

Chris Kranda

Associate Attorney

Born and raised in the pacific northwest Chris attended Seattle University’s Matteo Ricci College where he graduated cum laude with a bachelor’s degree in Humanities. He remained in the area and earned his Juris Doctor Seattle University School of Law.

During law school, Chris externed in US District Court for the Western District of Washington for the Honorable Robert S. Lasnik, and later worked as a Rule 9 prosecutor before joining the King County Prosecutor’s Office as a Deputy Prosecuting Attorney. He served in District Court and Violent & Economic Crime Units from 2019 to 2021 before joining Lether Law Group to begin his civil practice.

In his free time, Chris enjoys camping, fly fishing, and road trips.

Lether Law Group is Pleased to Announce its Newest Shareholder

As many of you know, Kevin Kay joined Lether Law Group in November 2019 as a partner after many years of practice in the Northwest and around the country as coverage and extra-contractual counsel for a number of insurers.  Kevin started his civil practice with Tom Lether and Eric Neal more than 16 years ago and has continued to provide clients with excellent advice and representation since joining Lether Law Group.  Kevin’s leadership skills, legal acumen, and work ethic have made him an excellent Partner.  Lether Law Group is now proud to welcome Kevin as our newest Shareholder.  We look forward to many more years of success, growth, and fun with Kevin taking the next step in his journey as part of the Lether Law Group family.  Congratulations Kevin!

Seattle is back and Lether Law Group is here to help

People and businesses around the country continue to deal with the lingering effects of the COVID-19 pandemic.  Nevertheless, there is a sense of hope and anticipation in the air as businesses continue to reopen and people have begun to come together again.  The Lether Law Group family had a chance to experience this firsthand last week when we joined hundreds of Seattleites and hockey fans to celebrate the expansion draft for the inaugural season of the Seattle Kraken NHL team.

The event occurred in front of our offices on Lake Union and gave us all a chance to get on the water and celebrate with our friends and neighbors.  We had a great time swimming, cruising the lake, and interacting with those around as we all soaked in the sun and the experience of this lifetime event.

It was wonderful to see the City of Seattle and hockey fans come together to celebrate this new hockey franchise. Lether Law Group could not be more excited to watch and cheer on the Seattle Kraken in the months ahead.  We also look forward to celebrating the return of normalcy with all of you.  As we have been before and throughout the pandemic, we at Lether Law Group stand ready to help navigate any legal issues you may face and to celebrate the victories with you.  Go Kraken!