The answer is yes. If you file a case in state court you must not file a lawsuit seeking punitive damages. You have to file a motion with the Court to move to amend your petition and look to K.S.A. 60-3701 and K.S.A. 60-3702 et. seq. Next, you must convince a judge with clear and convincing evidence that you can win on punitive damages to a jury by showing evidence of wanton conduct, malicious conduct, willful conduct or fraudulent conduct. Many District Court judges do not easily allow the motion to be made.
To the contrary of State law, if you file your case in Federal Court in Kansas you can file the Complaint with the punitive damages allegations already contained in the law suit since the statutes on punitive damages in State Courts are procedural in nature. Thus, if I have a case that I believe merits punitive damages I will see if it can be filed in Federal Court rather than Sate Court on the basis of diversity of citizenship or based on some federal question or law that provides for a private cause of action to an individual.
Kansans can and do award punitive damages in the right set of facts. Your attorney must set forth the elements of willful or intentional conduct that causes damage to someone or brings in the claims on wanton conduct also described as gross negligence or reckless indifference to human life. Your attorney can also bring these types of claims where you can prove fraudulent conduct that caused you damages or where the defendant has maliciously caused you damages. These cases are difficult and many judges do not like to have them in the lawsuit. It is always helpful to find an expert who can give an opinion on whether an act or omission is willful, wanton, fraudulent or malicious.
The court will hold a hearing to determine if the case presents with the necessary facts to prove the likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct. The Court will then look at the degree of the defendant’s awareness of that likelihood. The Court will look at the profitability of the misconduct. The court will additionally look to the duration of misconduct and any intentional concealment of the misconduct. The Court will look at the attitude and conduct of the defendant upon discovery of the misconduct. Next, the court will look at the financial condition of the defendant. The last factor for the court will be the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damages awards to persons in similar situations to those of the particular plaintiff as well as the severity of the criminal penalties to which the defendant has been or may be subjected.
If the court allows a jury to consider punitive damages, it is the Judge and not the jury that determines the amount to award in Kansas state court. Generally, the cap or limit is the amount of the annual gross income earned by the defendant looking at the five years income before the act or omission that gives rise to the punitive damages. This is limited at $5,000,000.00 dollars or in lieu of that cap a different amount if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of $5 million, in which case the court may award an amount equal to one and a half times the amount of profit which the defendant gained or is expected to gain as a result of the misconduct. In either event, the analysis for the court is a lengthy and difficult process. Punitive damages can be obtained in Kansas with the right set of facts and egregious misconduct of a defendant.
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