Eliminating the malice or recklessness requirement and allowing punitive damages calculations to account for unrealizeduninsurable risk are both big asks to make of common law courts.
Would it make a difference if the risks were insured?
Yes. If the risks are insurable (and more so if insured), then we don’t need punitive damages to mitigate them. We can rely on the prospect of compensatory damages in the event those risks are realized. Punitive damages are only needed to protect against the risk of practically non-compensable harms, for which a compensatory damages award would not be practically enforceable.
Would it make a difference if the risks were insured?
Yes. If the risks are insurable (and more so if insured), then we don’t need punitive damages to mitigate them. We can rely on the prospect of compensatory damages in the event those risks are realized. Punitive damages are only needed to protect against the risk of practically non-compensable harms, for which a compensatory damages award would not be practically enforceable.