Tessa Jordan v. Joseph Jenkins and Safeco Insurance Company v. Joseph Jenkins ( 2021 )

FILED
June 15, 2021
released at 3:00 p.m.
No. 19-0890 – Jordan, et al. v. Jenkins, et al. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 19-0899 – Safeco Ins. Co. v. Jenkins, et al. OF WEST VIRGINIA
WOOTON, J., dissenting, joined by Walker, J., as to No. 19-0890:
With respect to the majority’s reversal of these consolidated appeals, I
respectfully dissent. In the Jordan appeal, the purported error upon which the jury’s verdict
is reversed was not adequately preserved below. The new point of law, that loss of use
damages must be limited to a time period allowing for “reasonabl[e]” replacement, while
inoffensive on its face, is used as a vehicle to provide a new trial and elevate factual
defenses the Jordans failed to advance at trial. In the Safeco appeal, the punitive damages
award fell within the parameters of our punitive damages statute, a legislative enactment
that abrogates our prior caselaw permitting judicial adjustment of such awards, and
therefore should remain intact.
In regard to the Jordans’ appeal, the majority reverses the jury verdict in its
entirety and remands for a new trial on damages, liability having been admitted previously.
Despite the Jordans’ assertion of numerous alleged trial errors, the majority finds reversible
error only in the manner in which the jury was instructed on loss of use damages. 1
However, the Jenkinses failed to object to the loss of use instruction given by the trial court,
1
Although the majority addresses the erroneous admission of the testimony from
the claims adjuster in this personal injury action, it does not reverse on that ground, nor
does it state whether such error, standing alone, would be reversible. Like the instructional
error on which the majority relies, however, the Jordans acquiesced to the calling of the
claims adjuster.
1
thereby waiving their ability to assert that it was an incorrect statement of law: “‘No party
may assign as error the giving or the refusal to give an instruction unless he objects thereto
before the arguments to the jury are begun, stating distinctly, as to any given instruction,
the matter to which he objects and the grounds of his objection[.].’” Syl. Pt. 1, in part, Shia
v. Chvasta, 180 W. Va. 510, 377 S.E.2d 644 (1988). To evade this failure, the Jordans
focus on the trial court’s refusal to give an additional, standalone mitigation instruction, to
which refusal they did properly object. In order to grant the Jordans a new trial, the
majority crafts a new point of law holding that loss of use must be limited to a period no
longer “than that reasonably needed to replace it, which shall be determined by the trier of
fact,” thereby injecting a mitigation requirement into a loss of use claim.
Again, while I take no particular issue with the creation of a new point of law
to clarify this requirement, it does not necessarily follow that the Jordans are entitled to a
new trial as a result. Importantly,
[a] trial court . . . has broad discretion in formulating its charge
to the jury, so long as the charge accurately reflects the law.
Deference is given to a trial court’s discretion concerning the
specific wording of the instruction, and the precise extent and
character of any specific instruction will be reviewed only for
an abuse of discretion.
Syl. Pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). As indicated,
the Jordans made no objection whatsoever to the loss of use instruction as it was given.
2
More importantly with respect to the manner in which this case was tried,
[a] trial court’s refusal to give a requested instruction is
reversible error only if: (1) the instruction is a correct statement
of the law; (2) it is not substantially covered in the charge
actually given to the jury; and (3) it concerns an important
point in the trial so that the failure to give it seriously impairs
a defendant’s ability to effectively present a given defense.
Syl. Pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994) (emphasis added).
Simply put, the Jordans did not make mitigation an “important point in the trial,” opting
instead to affirmatively blame their insurer for any extended loss of use occasioned by the
Jenkinses. The Jordans urge in their brief that “the jury should have been instructed and
the Jordans permitted to argue” that the Jenkins’ loss of use claim was limited to the time
in which they obtained a replacement vehicle. (Emphasis added). Critically, the Jordans
fail to point the Court to any place in the record where they were prohibited from making
such an argument. Further, the loss of use instruction as crafted specifically included
mitigation language, permitting the jury to consider that “Joe Jenkins may have had another
vehicle to use during this time [and] that he bought a replacement vehicle and replaced his
damaged vehicle in some other manner[.]” 2 To the extent the Jordans failed to highlight
that instruction and the facts which supported their mitigation argument, this was a
2
The instruction more specifically connected such mitigation evidence to the
aggravation and inconvenience claim; however, the majority finds any error with respect
to aggravation and inconvenience inadequately preserved, as is the case with nearly all of
the Jordans’ assignments of error.
3
deliberate trial tactic, serving to waive any such error. I am authorized to state that Justice
Walker joins in this dissent as to the Jordans’ appeal, No. 19-0890.
I further dissent to the majority’s reversal of the verdict in Safeco’s appeal,
concluding that an award of punitive damages which falls beneath the statutory punitive
damages cap established in West Virginia Code § 55-7-29(c) (2015) remains subject to
further judicial adjustment. The majority effectively nullifies this statute, finding that the
statute has changed nothing about our existing body of punitive damages caselaw and that
this caselaw permits the judiciary to create a new, lower cap in contravention of the cap
specifically established by statute.
The common law analysis set forth in Garnes v. Fleming Landfill, Inc., 186
W. Va. 656, 413 S.E.2d 897 (1991), and the ratio authorized by TXO Production
Corporation v. Alliance Resources Corporation, 187 W. Va. 457, 419 S.E.2d 870 (1992),
were long-standing and well-known at the time West Virginia Code § 55-7-29(c) was
enacted in 2015. Had the Legislature intended simply for this body of caselaw to continue
to guide punitive damages assessments, enactment of the statute would have been wholly
unnecessary. “[C]ourts presume the Legislature drafts and passes statutes with full
knowledge of existing law.” W. Va. Health Care Cost Rev. Auth. v. Boone Mem’l Hosp.,
196 W. Va. 326, 336, 472 S.E.2d 411, 421 (1996). By enacting West Virginia Code § 55-
7-29, the Legislature plainly intended to remove the highly subjective and unpredictable
assessments authorized by Garnes from the courts’ purview. The mere fact of the statute’s
4
enactment demonstrates the Legislature’s intention that punitive damages awards which
fall within its parameters are presumptively proper and not subject to further judicial
adjustment.
It is critical to note that this issue of fundamental importance to our State
presented itself only tangentially to the Court in the instant case. The thrust of Safeco’s
petition for appeal was that the punitive damages award was tainted by inadmissible
evidence, and that in any event the evidence did not warrant a punitive award. While
Safeco assigned as error the alleged lack of proportionality of the punitive verdict, it failed
to so much as mention the statute in its initial petition for appeal. In response, respondents
asserted the statute’s predominance over Safeco’s half-hearted proportionality argument;
Safeco’s reply merely makes a conclusory assertion that monetary awards beneath the cap
are still subject to analysis under Garnes. 3 Accordingly, neither party fully briefed the
3
Even in Safeco’s scant reply on this issue, its discussion is devoid of any
compelling analysis. In sum, Safeco cites opinions issued after the enactment of West
Virginia Code § 55-7-29, suggesting that any reference therein to Garnes establishes that
this Court recognizes its continued vitality. Most of the cases cited are memorandum
decisions, which this Court has made clear are only of “limited” precedential value; any
such value is virtually non-existent where the issue was not actually addressed or the statute
at issue mentioned in the case. Syl. Pt. 5, in part, State v. McKinley, 234 W. Va. 143, 764
S.E.2d 303 (2014).
In the lone signed opinion from this Court cited by Safeco, the mention of Garnes
was merely a reference to its citation by respondent therein. See State ex rel. State Farm
Mut. Auto. Ins. Co. v. Cramer, 237 W. Va. 60, 67, 785 S.E.2d 257, 264 (2016). Similarly,
the reference to Garnes in Richard H. v. Rachel B., No. 18-1004, 2019 WL 6998331, at *3
(W. Va. Dec. 20, 2019) (memorandum decision), was merely citational—Garnes was
quoted in the case actually cited in the memorandum decision. The remaining cases citing
(continued . . .)
5
prime issue: whether West Virginia Code § 55-7-29(c) served to abrogate our body of
punitive damages caselaw. Regardless, the majority presumes to resolve with finality this
underdeveloped issue of fundamental importance to the State.
West Virginia Code § 55-7-29(c) provides: “The amount of punitive
damages that may be awarded in a civil action may not exceed the greater of four times the
amount of compensatory damages or $500,000, whichever is greater.” The majority’s new
syllabus point holds that, notwithstanding this legislative prescription of the acceptable
range of a punitive damages award, it remains within the province of the judiciary to create
an even lower cap under the auspices of Garnes, and even more inexplicably, to apparently
employ the higher 5:1 ratio set forth in Syllabus Point 15 of TXO. 4 On what basis it
presumes to strip the Legislature of its authority to delineate an acceptable range of punitive
damages, the majority opinion does not state.
to Garnes are from two federal courts, neither of which acknowledge the enactment of
West Virginia Code § 55-7-29(c).
4
The majority’s new syllabus point holds that the trial court must “apply the model
specified in Syllabus Points 3 and 4 of Garnes [] and Syllabus Point 15 of TXO[.]” Syllabus
point 15 of TXO provides only that the outer limit ratio of punitive damages to
compensatory damages is “roughly 5 to 1” and that “much higher ratios are not per se
unconstitutional.” 187 W. Va. 457, 419 S.E.2d 870. How the majority concludes that this
higher ratio still has any applicability in view of the express 4:1 ratio limit and alternative
monetary cap contained in West Virginia Code § 55-7-29(c) is not explained. With respect
to Garnes, it is at least conceivable that a damages award might be further subject to its
reductive effect, but TXO’s holding countenances ratios plainly in excess of the 4:1 ratio
which the Legislature has set as the upper limit.
6
Establishing such parameters to recovery in a civil action is entirely within
the Legislature’s authority. Much as it may set statutory limitations on the types of
damages recoverable, the level of proof required for damages, parties against whom the
damages may be awarded, and the like, the Legislature may likewise establish statutory
damages awards or ranges for acceptable awards. See Horton v. Oregon Health & Sci.
Univ., 376 P.3d 998, 1041 (Ore. 2016) (“[T]he legislature can[] define, as a matter of law,
the nature and extent of damages that are generally available in a class of cases.”); Pulliam
v. Coastal Emergency Servs. of Richmond, Inc., 509 S.E.2d 307, 314 (Va. 1999) (“If it is
permissible for a legislature to enact a statute of limitations completely barring recovery in
a particular cause of action . . . it should be permissible for the legislature to impose a
limitation upon the amount of recovery as well.”); see also Siebert v. Okun, No. S-1-SC-
37231, 2021 WL 959248, at *12 n.3 (N.M. Mar. 15, 2021) (noting 24 of 30 states enacting
damages caps found “statutory limit on recovery is a matter of law within the purview of
the state legislature” and collecting cases). In fact, the United States Supreme Court has
stated that “a reviewing court engaged in determining whether an award of punitive
damages is excessive should ‘accord “substantial deference” to legislative judgments
concerning appropriate sanctions for the conduct at issue.’” BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 583 (1996) (quoting Browning–Ferris Indust. of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 301 (1989) (O’Connor, J., concurring in part and dissenting in part)).
7
Notably, this appeal presents no challenge whatsoever to the constitutionality
of the statute itself. 5 While the majority takes no issue with the statute’s facial clarity, it
seizes upon the statute’s silence as to the continued applicability of the Garnes factors to
permit courts to further reduce such an award. However, when a statute is silent as to an
issue, this Court must look to its intent. “To determine legislative intent, we start with the
text of the statute in question and then move ‘to the structure and purpose of the Act in
which it occurs.’” W. Va. Health Care Cost Rev. Auth., 196 W. Va. at 338, 472 S.E.2d at
423 (quoting N. Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 655 (1995)). The majority fails to give meaningful consideration to whether the
Legislature intended for the statute to provide a standalone range of acceptable punitive
damages awards or merely serve as an overlay to our existing caselaw. In this instance, we
need look no further than the statute’s text to conclude that the Legislature intended to
5
Nor does the majority’s casually vague references to “due process” provide a
sufficient justification to invade the Legislature’s province to prescribe acceptable damages
ranges. See Golson v. Green Tree Fin. Servicing Corp., 26 F. App’x 209, 216 (4th Cir.
2002) (“[T]he fact that the jury’s award of punitive damages was well below the statutory
maximum and comes within the range that Congress considers reasonable is a strong
indicator that Golson’s award was not unconstitutional.”); Romano v. U-Haul Int’l, 233
F.3d 655, 673 (1st Cir. 2000) (“[A] punitive damages award that comports with a statutory
cap provides strong evidence that a defendant’s due process rights have not been
violated.”); E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir. 1999) (“The
[punitive damages] award in this case falls within the range that Congress has determined
to be reasonable, thus undermining Wal-Mart’s [unconstitutional excessiveness]
argument.”); Bubar v. NorDx, No. 2:16-CV-00201-JHR, 2018 WL 715329, at *12 (D. Me.
Feb. 4, 2018) (noting punitive damage award not subject to constitutional excessiveness
challenge because it “falls within the MHRA’s statutory cap on penalties based on size of
employer”).
8
create wholesale parameters for punitive damages which bear the Legislature’s imprimatur
of reasonableness, free of further judicial intrusion.
As indicated above, West Virginia Code § 55-7-29(c) provides that punitive
damages “may not exceed the greater of four times the amount of compensatory damages
or $500,000[.]” Obviously, the statute provides both a ratio and a monetary cap, the greater
of which sets the ceiling for a punitive damages award. In the instant case, the
compensatory damages were $1,000 and the punitive damages $60,000, giving rise to an
award well beneath the applicable cap of $500,000, but having a 60:1 ratio. Under the
plain statutory language, the greater of the two—$500,000—provides the cap. However,
the majority finds that where the monetary cap provides the ceiling, an award may still be
subject to a proportionality and/or excessiveness analysis under our precedents, thereby
creating a lower cap than the one prescribed by the Legislature.
Clearly, the majority is offended by the 60:1 ratio between the compensatory
damages and punitive damages and seeks to utilize Garnes to bring that ratio more in line
with the 5:1 ratio sanctioned in TXO. However, were the Legislature’s intent to only
sanction awards which do not exceed a certain ratio, it would have set the statutory ceiling
at the 4:1 ratio and left it at that. Further, had it intended for awards falling within its
parameters to still be subject to judicial downward adjustment, it would have expressly
9
said as much, 6 or included the required considerations for alteration of the cap in the
statute, 7 just as many other states have done. Our statute does neither. In fact, had the
Legislature intended the awards to continue to be scrutinized under our existing body of
caselaw requiring examination of the conduct, actor, punitive value, etc., the statute would
be unnecessary at best and meaningless at worst. 8
6
See, e.g., Ala. Code § 6-11-21(i) (1999) (“Nothing herein shall be construed as . .
. limit[ing] the duty of the court, or the appellate courts, to scrutinize all punitive damage
awards, ensure that all punitive damage awards comply with applicable procedural,
evidentiary, and constitutional requirements, and to order remittitur where appropriate.”);
Fla. Stat. Ann. § 768.73(1)(d) (1999) (“This subsection is not intended to prohibit an
appropriate court from exercising its jurisdiction . . . in determining the reasonableness of
an award of punitive damages that is less than three times the amount of compensatory
damages.”).
7
See, e.g., Alaska Stat. Ann. § 09.17.020(g) (West 2003) (removing actions from
cap where defendant “motivated by financial gain”); Colo. Rev. Stat. Ann. § 13-21-102(2)
(a)-(c) (West 2003) (“[T]he court may reduce or disallow the award of exemplary damages
to the extent that[] (a) The deterrent effect of the damages has been accomplished; or (b)
The conduct which resulted in the award has ceased; or (c) The purpose of such damages
has otherwise been served.”); Fla. Stat. Ann. § 768.73(1)(c) (West 1999) (elevating cap for
certain conduct and removing cap altogether where there is “specific intent to harm”); Ga.
Code Ann. § 51-12-5.1(f) (West 2010) (removing cap where specific intent to cause harm
or defendant acted “under the influence of alcohol [or] drugs other than lawfully prescribed
drugs”); Kan. Stat. Ann. § 60-3701(b) (West 1988) (enumerating Garnes-type factors to
be considered for punitive awards within statutory cap); Mo. Ann. Stat. § 510.265 (West
2020) (exempting actions against the State, involving felonies, and certain enumerated
statutory actions from cap); Nev. Rev. Stat. Ann. § 42.005(2) (West 1995) (removing cap
for actions involving product liability, bad faith, discriminatory housing practices, toxic
spillage, and defamation); S.C. Code Ann. § 15-32-530(C) (2012) (removing cap for
actions involving specific intent to cause harm, felonies, or acting under influence of drugs
or alcohol); Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c) (2009) (removing cap for
damages arising from enumerated felonies).
8
Our caselaw had already established a 5:1 ratio guideline; if the Legislature merely
desired to reduce that ratio to 4:1, it could have done only that in the statute. Instead, the
(continued . . .)
10
By including an alternative monetary cap, the Legislature was expressing
that awards that either fell beneath the stated ratio or which fell monetarily beneath that
cap were permissible, giving the benefit of the higher ceiling. The purpose was plainly to
remove the guesswork from the unpredictable range of ratios and other highly subjective
considerations encouraged by our existing body of caselaw. It did so by establishing a ratio
ceiling and an alternative monetary ceiling, under which the amount is deemed to be of
such de minimis concern as to escape further proportionality analysis. See Hamlin v.
Hampton Lumber Mills, Inc., 246 P.3d 1121, 1135 (Ore. 2011) (Gillette, J., dissenting)
(“The key is to recognize that some punitive damages awards are small enough that they
do not implicate substantive due process concerns . . . . [Such] [a]wards below the de
minimis amount would not be subject to the Gore guideposts and would not require any
sort of substantive Gore/Campbell judicial review at all.”).
Because the majority authorizes courts to substitute their judgment as to the
acceptable cap on punitive damages in place of the Legislature’s determination of an
appropriate cap as set forth in West Virginia Code § 55-7-29(c), I respectfully dissent.
inclusion of an alternative specific monetary cap—a figure which is derived wholly from
the legislative wisdom rather than caselaw—establishes its policy statement that amounts
less than $500,000 are presumptively acceptable.
11