dissenting.
The majority has determined that the lowest burden of proof— the preponderance of evidence standard—should apply in cases prosecuted by insurance companies under the Insurance Fraud Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -30, despite the lack of any language in the IFPA that suggests such a standard. The majority divines that standard by unnecessarily and vainly searching for a legislative intent when, apparently, the Legislature did not give a second thought to the subject. “Because both the language of the statute and its legislative history are silent concerning the applicable standard of proof’ in eases prosecuted under the IFPA, ante at 170, 892 A.2d at 1244, this Court has not only the constitutional and equitable power, but the duty to set the standard. A defendant who is found liable under the IFPA is subject to compensatory damages, treble damages, mandatory assessment of investigation expenses, attorneys’ fees and costs, and, if the case involves automobile insurance fraud, a mandatory one-year driver’s license suspension. Those penalties in their totality are more than the equivalent of punitive damages, which by statute must be proved by clear and convincing evidence. The significant consequences that flow from a judicial determination of IFPA liability should warrant a heightened degree of accuracy. The preponderance of evidence standard sets the bar too low. There is no sound reason why insurance companies should not bear the burden of proving an IFPA violation by clear and convincing evidence. I therefore respectfully dissent.
I.
When the Legislature has enacted a law that requires factfinding but has not expressed a preference for a particular burden of proof, our courts have not hesitated to establish the required burden by looking to other statutes and decisional law, rather than *182engaging in the enigmatic search for legislative intent. Watkins v. Nelson, 163 N.J. 235, 244, 748 A.2d 558 (2000) (“Because the [child-custody] statute does not provide a standard [of proof], we must look to our statutory and decisional law concerning custody to decipher the appropriate standard to be applied in this case.”). See, e.g., N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J.Super. 243, 261-62, 565 A.2d 706 (App.Div.1989) (applying clear and convincing standard to parental-rights termination under N.J.S.A. 30:4C-20), certif. denied, 121 N.J. 614, 583 A.2d 315 (1990); State v. Cestone, 38 N.J.Super. 139, 142-43, 147-48, 118 A.2d 416 (App.Div.1955) (applying “beyond a reasonable doubt” standard to violation of motor vehicle statute prohibiting crossing center line, currently codified at N.J.S.A. 39:4-86); State v. Kinsley, 103 N.J.Super. 190, 191-92, 246 A.2d 764 (Cty.Ct.1968) (holding that preponderance of evidence was proper standard under environmental protection statute, N.J.S.A. 23:5-28), aff'd o.b., 105 N.J.Super. 347, 252 A.2d 224 (App.Div.1969) (per curiam).
Courts in other jurisdictions also determine the appropriate burden of proof to apply to a statutory scheme when the legislature has not spoken on the subject. See, e.g., County Attorney v. Kaplan, 124 Ariz. 510, 605 P.2d 912, 913 (Ct.App.1980) (applying clear and convincing standard to provision in mental health statute defining “gravely disabled”); Swanson v. State, 83 Idaho 126, 358 P.2d 387, 391 (1960) (applying “clear and satisfactory” standard under adverse possession statute); In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn.1978) (per curiam) (imposing clear and convincing standard to termination of parental rights in face of statutory silence on burden of proof).
The judicial power to fashion and allocate evidentiary burdens of proof is a familiar one and is derived from this Court’s constitutional rule-making authority over the practice and procedure of our courts.1 See N.J. Const. art. VI, § 2, ¶ 3. It is a power *183that is routinely exercised. See, e.g., Haynes v. First Nat’l State Bank of N.J., 87 N.J. 163, 182, 432 A.2d 890 (1981) (requiring clear and convincing evidence to rebut presumption of undue influence in respect of will); State v. Hurd, 86 N.J. 525, 546, 432 A.2d 86 (1981) (setting standard of clear and convincing evidence for admission of hypnotically refreshed testimony); State ex rel. B.F., 230 N.J.Super. 153, 158-59, 553 A.2d 40 (App.Div.1989) (setting standards of proof for admissibility of closed-circuit-television testimony in certain criminal prosecutions under N.J.S.A. 2A:84A-32.4).
That is not to say that the Legislature cannot create a civil cause of action and assign a burden of proof to the prosecution of the matter. Many civil statutes specifically provide for the standard of proof that must be met by the plaintiff. See, e.g., N.J.S.A. 2A:15-5.12(a) (requiring clear and convincing evidence for award of punitive damages); N.J.S.A. 2A:81-2 (requiring clear and convincing evidence under dead man’s statute); N.J.S.A. 3B:3-15(b) (requiring clear and convincing evidence to revive revoked will); N.J.S.A. 25:1-13(b) (requiring clear and convincing evidence under statute of frauds); N.J.S.A. 37:2-38 (requiring clear and convincing evidence before setting aside premarital agreement). We only interfere with a legislative determination concerning the burden of proof if the burden established by the Legislature does not satisfy principles of due process. See, e.g., State v. Cummings, 184 N.J. 84, 95-96, 875 A.2d 906 (2005) (holding that violation under civil breathalyzer refusal statute was quasi-criminal in nature and therefore due process required proof beyond reasonable doubt, not merely preponderance of evidence as provided by statute).
Thus, ordinarily we would defer to an expression of legislative authority in the spirit of comity and out of respect for a coequal branch of government. See In re Civil Commitment of G.G.N., 372 N.J.Super. 42, 46, 855 A.2d 569 (App.Div.2004) (finding “no basis to alter the burden of proof from that which is set out in the statute and which was approved by our Supreme Court”). But when the Legislature has not spoken to the subject, as in this *184case, we can as readily conclude that it expected the courts, which have the experience and expertise, to set the appropriate burden of proof. In the absence of a legislative directive enunciating the burden of persuasion to be applied to a statutorily created cause of action, I see no need for this Court to ascribe to the Legislature an imaginary intention. Nothing in the text or history of the IFPA intimates that the Legislature gave any thought to the burden of proof that should apply to the prosecution of matters arising under the Act. Accordingly, this Court should exercise its constitutional and equitable powers and determine the burden of proof that applies to IFPA cases.
II.
In determining the appropriate burden of proof, the Court must look at the consequences that follow from a finding of liability. Our system of justice is imperfect and erroneous judgments are inevitable. The burden of proof that we set for a plaintiff to meet in proving a cause of action is an expression of the degree of error that we are willing to tolerate in our system of justice. See Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323, 329 (1979) (observing that burdens of proof serve to “ ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication’ ” (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368, 379 (1970) (Harlan, J., concurring))); State v. Oliver, 162 N.J. 580, 590, 745 A.2d 1165 (2000) (stating same). In criminal cases, where the stakes are the greatest, our judicial system demands a high degree of confidence in a correct outcome, and therefore the burden on the State is to prove guilt beyond a reasonable doubt. See Addington, supra, 441 U.S. at 423-24, 99 S.Ct. at 1808, 60 L.Ed.2d at 329; Winship, supra, 397 U.S. at 369-72, 90 S.Ct. at 1075-77, 25 L.Ed.2d at 378-81 (Harlan, J., concurring).
The stakes in an IFPA case are far greater than in a typical civil ease in which compensatory damages are the only form of *185relief. Those determined to have violated the IFPA face severe consequences. An “insurance company damaged as the result of a violation of’ the IFPA may “recover compensatory damages, which shall include reasonable investigation expenses, costs of suit and attorneys fees.” N.J.S.A. 17:33A-7(a). In addition, a successful insurance company “shall recover treble damages if the court determines that the defendant has engaged in a pattern of violating [the] act.” N.J.S.A. 17:33A-7(b). Moreover, if a violation of the act involves automobile insurance fraud, then the violator is subject to a mandatory one-year driver’s license suspension. N.J.S.A. 39:6A-15.
Treble damages are intended to punish, and only partly to compensate, and therefore have all the hallmarks of punitive damages. See ante at 176, 892 A.2d at 1247-48 (stating that Consumer Fraud Act’s treble damages provision “serve[s] to ... punish the wrongdoer” (internal quotation marks omitted)); Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 12, 860 A.2d 435 (2004) (“Among the equitable and legal remedies available against violators of the [Consumer Fraud] Act are treble damages, reasonable attorneys fees, and costs of suit. The purpose of those remedies is not only to make whole the victim’s loss, but also to punish the wrongdoer and to deter others from engaging in similar fraudulent practices.” (citation omitted)); In re Cohen, 114 N.J. 51, 65, 552 A.2d 985 (1989) (alluding to “punitive nature of an award for treble damages”); see also D.C.Code § 22-3225.05(b) (providing for mandatory award of treble damages upon clear and convincing showing of “established pattern or practice” of violation of insurance fraud act); Fla. Stat. § 772.104 (requiring clear and convincing evidence before award for treble damages in civil action under deceptive practices statute); Buddy Lee Attractions, Inc. v. William Morris Agency, Inc., 13 S.W.3d 343, 359-60 (Tenn.Ct.App.1999) (holding that under trebling statute, treble damages are “automatic” on showing by clear and convincing evidence).
If we are to make statutory comparisons, the closest analogue to the IFPA is the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to - *1865.17. Under the Punitive Damages Act, the plaintiff must prove by clear and convincing evidence that the defendant acted with actual malice or in willful and wanton disregard of the harm that might be caused to others. N.J.S.A. 2A:15-5.12(a). In most cases that fall under that statute, punitive damages are capped at “five times the liability of [the] defendant for compensatory damages or $350,000, whichever is greater.” N.J.S.A. 2A:15-5.14(b)-(c).
The Punitive Damages Act defines compensatory damages as “damages intended to make good the loss of an injured party, and no more,” and punitive damages as damages intended “to penalize and to provide additional deterrence against a defendant to discourage similar conduct in the future.” N.J.S.A. 2A:15-5.10. By that definition, only one part of a treble damages award covers compensatory damages whereas the other two parts comprise punitive damages. Under the majority’s ruling, an insurance company that suffers a $1,000,000 loss will be awarded trebled damages of $3,000,000—$1,000,000 of which is compensatory and $2,000,000 of which is punitive. In such circumstances, the majority opinion allows an insurance company a $2,000,000 punitive damages award by merely satisfying the preponderance of the evidence standard. On the other hand, in a non-IFPA case, a plaintiff must satisfy the clear and convincing evidence standard for the same $2,000,000 punitive damages award under the Punitive Damages Act. Significantly, absent from the treble damages scheme of the IFPA is any mechanism to safeguard a defendant from an excessive award of punitive damages. For example, in determining an award of punitive damages under the Punitive Damages Act, the factfinder must consider “[t]he profitability of the misconduct to the defendant” and “[t]he financial condition of the defendant.” N.J.S.A. 2A:15—5.12(c)(2), (4). There is no similar provision in the IFPA that allows the factfinder to award trebled damages only proportionate to a defendant’s financial means.2
*187For those reasons, it is difficult to imagine that the Legislature would intend a clear and convincing standard for punitive damages, but only a preponderance of the evidence standard for trebled damages, particularly when those damages are on top of requiring the defendant to pay an insurance company’s investigation expenses, costs of suit and attorneys’ fees, and an automatic one-year suspension of the defendant’s driver’s license in an automobile insurance fraud ease.
In that latter regard, it is important to note that in the prosecution of a Title 39 motor vehicle violation, including those involving potential license suspensions, the State must prove guilt beyond a reasonable doubt. Cummings, supra, 184 N.J. at 92-93, 98, 875 A.2d 906; State v. Dively, 92 N.J. 573, 576, 577, 585, 458 A.2d 502 (1983); see also Rodriguez v. Rosenblatt, 58 N.J. 281, 295, 277 A.2d 216 (1971) (describing “substantial loss of driving privileges” as “serious consequence”). Although the present case does not involve automobile insurance fraud, clearly a heightened standard of proof is required when license suspension is added to the list of penalties that attach to an IFPA violation.
Viewed in their totality, the sanctions available under the IFPA—treble damages, N.J.S.A. 17:33A-7(b); mandatory assessment of investigation costs, court costs, and attorneys’ fees, N.J.S.A. 17:33A-7(a); and mandatory driver’s license revocation for automobile insurance fraud, N.J.S.A. 39:6A-15—are sufficiently punitive, and involve consequences of sufficient magnitude, to require a burden of proof higher than the typical preponderance standard in civil cases. There is no good reason why insurance companies should not be held to the clear and convincing evidence standard of the Punitive Damages Act, N.J.S.A. 2A:15-5.12(a).
*188III.
Because I would require insurance companies in IFPA cases to prove liability by the standard of clear and convincing evidence, I respectfully dissent.
Justice LONG joins in this opinion.
For reversal in part and remandment—Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO—5.
Dissenting—Justices LONG and ALBIN—2.
The imposition of a heightened standard of proof in certain civil cases also derives from courts’ equitable powers. See McCormick on Evidence § 340 & n. 15 (Strong ed., 5th ed. 1999).
The Consumer Fraud Act, like the IFPA, subjects violators to court costs, attorneys' fees, and treble damages. N.J.S.A. 56:8-19. Not until today has this *187Court suggested that the burden of proof in cases prosecuted under the Consumer Fraud Act is by a preponderance of evidence. See ante at 176-77, 892 A.2d at 1248 (citing Superior Court decisions defining burden of proof under Consumer Fraud Act as preponderance of evidence).