Plaintiffs are filing a cross-appeal to the U.S. Supreme Court today asking for punitive damages in the Exxon Valdez oil spill to be raised to $5 billion if the high court decides in favor of Exxon’s request last week to hear the case.

Plaintiff’s attorney Matt Jamin of Kodiak said Monday a cross-appeal would re-establish the $5 billion originally awarded in the 18-year-old case, only if the Supreme Court takes the case.

The Supreme Court has until the end of the year to respond to Exxon Mobil Corp.’s petition. Four of the nine Supreme Court justices must vote in favor of granting Exxon’s petition for the case to proceed.

The 9th Circuit Court of Appeals in San Francisco earlier ordered Exxon to pay $500 million in compensatory damages, the amount Exxon is currently paying out.

Jamin’s latest request follows a back-and-forth contention in the courts, and between plaintiffs and defendants, on the amount of punitive damages. Punitive damages are awarded a plaintiff in addition to compensatory damages in order to punish the defendant for a reckless or willful act.

Compensatory damages are a payment intended to offset the loss of a plaintiff who has suffered an injury.

The most recent court decision placed the amount of punitive damages at $2.5 billion, down from $5 billion. Exxon is arguing the $2.5 billion is excessive.

Jamin maintains on behalf of claimants, which include not only Kodiak plaintiffs but also about 33,000 others in the class-action suit, that the Supreme Court should not hear the case.

Lawyers for plaintiffs estimated that about 20 percent of their clients have died during the lawsuit. Living plaintiffs include commercial fishermen, cannery workers, landowners, Natives, local governments and businesses.

Part of the $2.5 billion is to be distributed to 51 groups of Kodiak claimants with the Kodiak salmon seine group receiving 14.5 percent, or $450 million. Set-netters would get $130 million.

Jamin previously informed clients that the current amount to be distributed (if the $2.5 billion figure is the final amount) includes interest of $2 billion, and a 11 percent reduction due to Exxon’s settlement in a Seattle suit reducing the total amount to $3.08 billion.

Jamin said plaintiffs have not separately petitioned to increase the $2.5 billion figure because “clients want the case over with on the current basis even though it is the reduced amount.”

Jamin said if the Supreme Court decides to hear the case, it is possible that instead of settling in 2008, the lawsuit could go on another year and not be settled until June of 2009.

“If the Supreme Court takes the case, we don’t know if it could hear the case by the end of June 2008, which is when the current term expires,” Jamin said.

“If the court decides not to hear the case, then it would be sent back to the 9th Circuit who will then send it back to Holland,” Jamin said.

U.S. District Judge H. Russell Holland of Anchorage set the amount at $2.5 billion after the 9th Circuit ruled the $5 billion in damages excessive. Holland in 2002 set the amount at $4 billion and later reduced it.

The amount was reduced based upon reasoning that Exxon did try to clean up the spill and did not spill oil from the tanker deliberately.

Exxon filed a motion earlier this year to have the entire panel of 15 judges hear the case en banc contending the $2.5 billion is excessive, but in May the court refused to hear the case.

Jamin said if the Supreme Court does not hear the case, then his clients would receive the amount established in Holland’s court and it would be distributed immediately.

Jamin said, however, even if the court does take the case, there is a chance it could still be decided by June 2008.

“Attorneys have to submit briefs and oral arguments would be heard,” he said. “But we just don’t know.”

Jamin said the primary arguments the giant oil company is asking the Supreme Court to review in what is called a writ of certiorari petition have been rejected by Holland, the three-judge 9th Circuit panel and include the en banc 9th Circuit decision.

“So settlement has been established,” Jamin said.

Exxon’s primary arguments include three points.

First, Exxon should not be held liable for actions of Capt. Joseph Hazelwood, who was piloting the Exxon Valdez when it spilled 10.8 million gallons of oil after running aground on Bligh Reef in Prince William Sound, March 14, 1989.

Second, Exxon contends that under the Clean

Water Act, the U.S. Congress specified criminal and civil penalties for maritime conduct that do not include punitive damages, raising the question of whether the courts can expand federal maritime law established by Congress.

Third, Exxon argues even if $2.5 billion in punitive damages could be reaffirmed, the amount is excessive and should be lower within limits of maritime law and due process.

“Each of those issues have already been rejected before,” Jamin said.

Mirror writer Bryan Martin can be reached via e-mail at bmartin@kodiakdailymirror.com.