Amicus Curiae Brief — Pacific Mutual Life Insurance v. Haslip

wy, FILED

| No. 89-1279 Ww 3 ad

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

PACIFIC MUTUAL LIFE INSURANCE COMPANY,

Petitioners,

V.

CLEOPATRA HASLIP, CYNTHIA CRAIG,

ALMA M. CALHOUN and EDDIE HARGROVE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF THE

ALABAMA DEFENSE LAWYERS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Of Counsel: DAVIS CARR

H. E. NIx, JR. HAND, ARENDALL, BEDSOLE,

NIx & HOLTSFORD GREAVES & JOHNSTON

Post Office Box 4128 Post Office Box 123

Montgomery, Alabama 36103 Mobile, Alabama 36601

President, Alabama Defense (205) 432-5511

Lawyers Association Counsel for Amicus Curiae

SSS

a SS

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the constitutional defects in the award of

punitive damages against Pacific Mutual were cured by

Alabama’s judicial review procedure.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED... i

TABLE OF AUTHORITIES... iv

INTEREST OF THE AMICUS... 1

SUMMARY OF THE ARGUMENT... 3

TES Se 3

I. THE PROBLEM OF PUNITIVE DAMAGES

a 3

Il. THE ALABAMA POST-VERDICT REVIEW

PROCESS DOES NOT SATISFY DUE PROC-

ict ctariteeiteeeeeeereens 9

a 13

(iii)

iv Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

Cases Page Page

Aetna Life Ins. Co. v. Lavoie, 470 So. 2d 1060 HealthAmerica v. Menton, 551 So. 2d 235 (Ala.

(Ala. 1984), vacated and remanded, 475 U.S. 1989), cert. denied, U.S. ——, 110 S. Ct.

813 (1986), on remand, 505 So. 2d 1050 (Ala. IT dlddesstiticnendivicipeniilbiciicattilbeetai as 2, 3,6

coe ED SL ne 2, 3,7 Hosey v. Siebels Bruce Group, 363 So. 2d 751

Alabama Power Co. v. Cantrell, 507 So. 2d 1295 ipa ne Te a 7

(Ala. 1986), appeal dismissed, 486 U.S. 1028 Industrial Chem. & Fiberglass Corp. v. Chandler,

(1988) cciacteiheentanianiptaneelidliantinasinaiiaei aati 3, 9 547 So. 2d 812, on application for rehearing, 547

Alabama Power Co. v. Capps, 519 So. 2d 1328 So. 2d 834 (Ala. 1989) ve ....5, 6, 10

(Ala. 1988), appeal dismissed, 486 U.S. 1002 John Hancock Variable Life Ins. Co. v. Pierce, 530

COND dich heisibidemiptgiciiendttt Tita 3,8 So. 2d 719 (Ala. 1987), cert. denied, 486 U.S.

Baggett v. Bullitt, 377 U.S. 360 ID iasiiibcndlineaiedsn 11 1032 (1988) sstninialiaeaiciideinesces eich iets 10

Batson v. Kentucky, 476 U.S. 79 TE 8, 12 Land and Associates, Inc. v. Simmons, [Ms. 87-

Black Belt Wood Co., Inc. v. Sessions, 514 So. 2d 1313, Dec. 22, 1989}, So. 2d —— (Ala.

TO ee 9 SED sivseticsceitateienamncanbinsiiiinienianiiiee oc 6, 7

Bouie v. City of Columbia, 378 U.S. 347 (1964) ..... 11 Mathews v. Eldridge, 424 U.S. 319 (1976)... 12

Central Alabama Elec. Co-op. v. Tapley, 546 So. 2d Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339

Oe Te ate on ents Peary 5, 6 (Ala. 1987), cert. denied, —— U.S. ——, 109

Charter Hospital of Mobile, Inc. v. Weinberg, 558 ee tee tg TE al 3

So. 2d 909 (Ala. 1990) 22. ccecccceecceeecee 6, 8, 11 O’Neal v. Brown, 21 Ala. 482 EE 9

City Bank of Ala. v. Eskridge, 521 So. 2d 931 (Ala. Olympia Spa v. Johnson, 547 So. 2d 80 (Ala.

SUTIN <hssiicsstensenisowtniipesiiiddttipasibassli Nr 9 I Oiler ee a ae 3, 5-8, 10

Clardy v. Sanders, 551 So. 2d 1057 (Ala. 1989), Pacifico v. Jackson, [Ms. 87-834, Feb. 20, 1990],

cert. denied, —— U.S. —~, 110 S. Ct. 376 So. 2d (Ala. 1990) 10

GD stiwcsnerniseniveitaienaninmingiite eet 3 State Farm Fire & Cas. Ins. Co. v. Lynn, 516 So.

Davison v. Mobile Infirmary, 518 So. 2d 675 (Ala. ee a 9

IU ieaeescamsnanisotineininneainttaidediie Eee 9 Tatum v. Schering C. +» 523 So. 2d 1042 (Ala.

Ensor v. Wilson, 519 So. 2d 1244 (Ala. 1987)... 9 IE cesictnsetntisditntesectnnitetaeampneniaiae et ca 5

Fludd v. Dykes, 863 F.2d 822 (11th Cir. 1989), Terrell v. City of Bessemer, 406 So, 2d 337 (Ala.

cert. denied, —— U.S. —~, 110 S. Ct. 201 ED -cienithiniditieeerindinesiniiisderninii 9

ONT <esicinnitinsaiciiiitiieiiainabiiasti 12 Thomas v. Diversified Contractors, Inc., 551 So.

Furman v. Georgia, 408 U.S. 238 a 12 bie Gh. lk... ; Ree 8,12

Goldberg v. Kelly, 397 U.S. 254 ae 12 U.S. v. L. Cohen Grocery Co., 255 U.S. 81 (1921).. 11

Grayned v. City of Rockford, 408 U.S. 104 (1972) .. 12 United Am. Ins. Co. v. Brumley, 542 So. 2d 1281

Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. iis! oe as 6

ONO <tascsicissnssressnteneapiiasuticseibiseneatmaiitiaiaiae 9-11 | United Services Auto Asso. v. Wade, 544 So. 2d

Hammond v. City of Gadsden, 493 So. 2d 1374 insite 10

rete ing ea et 9-138 Vintage Enterprises, Inc. v. Jaye, 547 So. 2d 1169

Hayes v. Payne, 523 So. 2d 333 (Ala, 1987) 9 (Ala. 1989), cert. denied, U.S. —~, 110

S. Ct. 377 (1989) noe 10

|

vi

TABLE OF AUTHORITIES—Continued

Page

Washington Nat’l Ins. Co. v. Strickland, 491 So. 2d

RR 7

Wilson v. Dukonia Corp., N.V., 547 So. 2d 70 (Ala.

NE re i ii iaieliinataacaiasilaaiisiiins 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886)............. 11

Other Authorities

40 Ala. L. Rev. 687-1261 (1989) ......... 4

Ala Code § 6-5-410 (1975) 200 4

Alabama Pattern Jury Instructions 11.03 (1974)... 4

Alabama Rules of Civil Procedure 59(a) DU etait 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1279

PACIFIC MUTUAL LIFE INSURANCE COMPANY,

Petitioners,

v.

CLEOPATRA HASLIP, CYNTHIA CRAIG,

ALMA M. CALHOUN and EDDIE HARGROVE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF THE

ALABAMA DEFENSE LAWYERS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS!

The Alabama Defense Lawyers Association (herein-

after “ADLA”) is a non-profit association of 687 mem-

bers of the Alabama trial bar who devote a substantial

* Pursuant to Rule 36, the parties’ letters of consent have been

filed with the Clerk.

amount of their professional time to representing de-

fendants in civil lawsuits. Organized in 1964, its pur-

poses include promoting improvements in the adversary

system of jurisprudence and the administration of

justice.

ADLA members collectively represent a substantial

number of civil defendants against whom punitive dam-

ages are increasingly sought and awarded in Alabama.

The ADLA has appeared as amicus curiae in numerous

cases involving the constitutionality of large punitive

damage awards, including Aetna Life Insurance Co. v.

Lavoie, 475 U.S. 813 (1986), in which this Court recog-

nized that such questions constitute “important issues

which . . . must be resolved,”? and HealthAmerica v.

Menton, 551 So. 2d 235 (Ala. 1989), cert. denied,

US. , 110 S. Ct. 1166 (1990).

Despite decisions by this Court questioning the consti-

tutionality of large punitive damage awards, the Ala-

bama Supreme Court has rejected all arguments that the

Constitution affords any due process controls on punitive

damages in civil cases where there is no fixed statutory

limit. Because of the serious and unsettled problem of

punitive damages in Alabama, amicus” is vitally inter-

ested in securing plenary review of the question herein

presented.

* The case of Aetna Life Ins. Co. v. Lavoie involved a $3.5 million

punitive damage award for the alleged bad faith failure to pay

$1,650.00 in health insurance benefits. The judgment was fully

affirmed by the Alabama Supreme Court in an opinion authored by

a justice who simultaneously was a plaintiff in a separate bad faith

lawsuit against another insurer. This Court vacated on grounds of

judicial disqualification and did not reach the punitive damages

issues. On remand, the Alabama Supreme Court remitted the

award to $500,000.00 505 So.2d 1050 (1987).

3

SUMMARY OF THE ARGUMENT

The Alabama Defense !; wyers Association files this

amicus brief to address two arguments of particular sig-

nificance to Alabama. First, there is a significant prob-

lem with punitive damages in Alabama. Second, the Ala-

bama Supreme Court has promulgated a post-verdict re-

view procedure which is ineffective as applied. Moreover,

this post-verdict process does not afford the trier of fact

guidelines in ascertaining the amount of punitive dam-

ages to award.

ARGUMENT

I. THE PROBLEM OF PUNITIVE DAMAGES IN

ALABAMA

In recent years, there have been several attempts to

bring the problem of punitive damages in Alabama be-

fore this Court: Aetna Life Ins. Co. v. Lavoie, 470 So

2d 1060 (Ala. 1984), vacated and remanded, 475 US.

813 (1986), on remand, 505 So. 2d 1050 (Ala. 1987):

Alabama Power Co. v. Cantrell, 507 So. 2d 1295 (Ala.

1986), appeal dismissed, 486 U.S. 1028 (1988) ; Alabama

Power Co. v. Capps, 519 So. 2d 1328 (Ala. 1988), ap-

peal dismissed, 486 U.S. 1002 (1988); Nationwide Mut.

Ins. Co. v. Clay, 525 So. 2d 1339 (Ala. 1987), cert. de-

nied, U.S. ——, 109 S. Ct. 863 /1989) : Olympia

Spa v. Johnson, 547 So. 2d 80 (Ala. 1989), petition for

temporary stay vacated, |Ms. A-935, May 30, 1989},

US. (1989) (Kennedy, J.); Clardy v. San-

ders, 551 So. 2d 1057 (Ala. 1 39), cert. denied,

U.S. ——, 110 S. Ct. 376 (1989); HealthAmerica v.

Menton, 551 So. 2d 235 (Ala. 1989), cert. denied,

U.S. ,» 110 S. Ct. 1166 (1990). A listing of punitive

damage verdicts in Alabama as shown in Appendix A

to petitioner’s brief, a copy of which is attached ror con-

venience as Appendix A to this brief, illustrates that the

problem of punitive damages in Alabama exists in epi-

demic proportions. Indeed, an entire issue of a recent

4

Alabama Law Review was devoted exclusively to the

topic of punitive damages. 40 Ala. L. Rev. 687-1261

(1989). A copy of the index from this issue is attached

to this brief as Appendix B.

The source of the unbridled discretion which contin-

ually misguides Alabama juries is the approved Alabama

Pattern Jury Instruction on punitive damages found at

Alabama Pattern Jury Instruetions 11.03 (1974), which

provides:

The purpose of awarding punitive or exemplary

damages is to allow money recovery to the plaintiff

by way of punishment to the defendant, and for the

added purpose of protecting the public by deterring

the defendant and others from doirs; such wrong in

the future. The imposition of pun.tive damages is

entirely discretionary with the jury. Should you

award punitive damages, in fixing the amount, you

must take into consideration the character and de-

gree of the wrong as shown by the evidence in the

case, and the necessity of preventing similar wrongs.

From this charge, skilled plaintiffs’ counsel exhort

juries to utilize the following pseudo formula in calcu-

lating punitive damages. First, determine an amount to

punish this defendant. Second, determine an amount to

deter this defendant. Third, determine an amount .o de-

ter other similarly situated defendants. Add these three

figures. All of this fits nicely into the classic “send a

message” closing argument, yet affords the trier of fact

no guidance whatsoever.

In Alabama, there is no special burden of proof stand-

ard for the imposition of punitive damages as opposed to

compensatory damages. There is no apportionment of

damages among joint tortfeasors. There is no contribu-

tion among joint tortfeasors. Our state court has inter-

preted our Wrongful Death Act, Ala. Code § 6-5-410

(1975), as requiring the imposition of punitive damages,

exclusively, for wrongful deaths. This is true even where

the basis of liability for the death is mere negligence.

5

See, e.g., Olympia Spa v. Johnson, 547 So. 2d 80 (Ala.

1989).

A careful examination of Alabama cases reveals that

the Alabama Supreme Court has addressed the constitu-

tionality of punitive damages in only two cases, Central

Alabama Flec. Co-op. v. Tapley, 546 So. 2d 371 (Ala.

1989) and Industrial Chem. & Fiberglass Corp. v. Chan-

dler, 547, So. 2d 812, on application for rehearing, 547

So. 2d 834 (Ala. 1989). In Tapley the Court held that

the procedural due process arguments were not properly

before the Court, and that the substantive due process

arguments were satisfied by a post-verdict review pro-

cess, discussed later in this brief. In Chandler the Court

first rejected an Efghth Amendment challenge, and on

rehearing responded to Fourteenth Amendment due

process arguments by observing that admitting evidence

of wealth in an effort to provide standards would be too

prejudicial, and again referred to the availability of post-

verdict procedures as sufficient due process. These are

the only two cases in Alabama with a substantive dis-

cussion addressing the constitutionality of punitive

damages.

While the Alabama Supreme Court has addressed this

issue in only these two cases, there is nonetheless com-

mentary found in Alabama Supreme Court opinions, such

as that found in the majority’s opinion in the present

case as quoted below:

Moreover, in a series of recent cases, this Court has

rejected the remaining constitutional arguments sub-

mitted by Pacific Mutual. (omitting citations)

3 The statute discusses “such damages as the jury may assess.”

For a view that the Court has misconstrued the type of damages

required by our death act, see, Tatum v. Schering Corp., 523 So.

2d 1042, 1047 (Ala. 1988) (Houston, J., dissenting). Since ovr

Court has construed “such damages as the jury may assess” to

mean punitive damages, exclusively, the problem of punitive dam-

ages becomes even more distressing.

6

—_— 4~—

553 So. 2d 537, 543 (Ala. 1989). Four cases are cited

by the Court. In three of those cases, the Court did not

address the constitutional issues: United Am. Ins. Co. v.

Brumley, 542 So. 2d 1231, 1238 (Ala. 1989) (“United

American’s entire argument on those points [constitu-

tional arguments] is one sentence long, too undeveloped

to merit serious review by this Court.) ; HealthAmerica

v. Menton, 551 So. 2d 235, 247 (Ala. 1989) (“{T lhe de-

fendants did not preserve their constitutional issues for

appeal.”’); Olympia Spa v. Johnson, 547 So. 2d 80, 86

(“|Dj}efendants failed to offer a proper objection or to

obtain a ruling from which an appeal could be taken

[regarding constitutionality of punitive damages].”).

The sole case cited by the Court which indeed addressed

these constitutional issues is the previously discussed /n-

dustrial Chem. & Fiberglass Corp. v. Chandler, 547 So.

2d 812, on application for rehearing, 547 So. 2d 834

(Ala. 1989). No mention is made of the Tapley case dis-

cussed above.

With regard to the constitutionality of punitive dam-

ages in Alabama, three~members of the Alabama Su-

preme Court have stated their views that the method for

awarding punitive damages in Alabama does not with-

stand constitutional scrutiny. In the instant case, Jus-

tices Maddox and Steagall expressed their views that

Alabama’s punitive damage procedure is premised upon

“wholly standardless discretion.” 553 So. 2d at 544.

The third justice, Justice Houston, most recently and

most clearly articulated the problems with Alabama’s

procedure in a concurring opinion in Charter Hospital of

Mobile, Inc. v. Weinberg, 558 So. 2d 909 (Ala. 1990).

Justice Houston specifically recognized that the post-

verdict process relied upon so heavily by the Court in

Chandler as satisfying due process is insufficient. Indeed,

it was Justice Houston who, in a concurring opinion,

noted in Land and Associates, Inc. v. Simmons, [Ms. 87-

1313, Dec. 22, 1989], —— So. 2d (Ala. 1989) that

punitive damages “are out of hand.”

7

The wide disparity of jury awards for apparently sim-

ilar misconduct in fraud cases was well illustrated by

Justice Houston in the Simmons case, just cited. Justice

Houston made a comparison of the facts and issues in

Washington Nat’l Ins. Co. v. Strickland, 491 So. 2d 872

(Ala. 1985) with the facts and issues in Simmons. Ac-

cording to Justice Houston, the conduct involved in the

two cases was “substantially the same.” In Strickland,

a jury awarded compensatory damages of $1,369.14, and

punitive damages of $21,130.86, approximately 15!

times compensatory damages. In Simmons a jury

awarded %10,000 compensatory damages, and $2,490,000

in punitive damages, 249 times compensatory damages.

The Alabama Supreme Court’s approach to the issues

concerning punitive damages in Alabama is further illus-

trated by two recent decisions. In one case, Olympia

Spa v. Johnson, 547 So. 2d 80 (Ala. 1989), an objection

addressing the constitutionality of punitive damages was

raised at trial before the trial court charged the jury,

even to the point of citing Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986). Notwithstanding the objection, the

trial court charged the jury on punitive damages. The

jury returned a $3 million wrongful death award. Post-

trial proceedings focused heavily on the constitutionality

of punitive damages, including an appeal to the Alabama

Supreme Court fully addressing this issue, as well as a

petition for stay of execution to this Court, which was

denied. Petition for temporary stay vacated, [Ms. A-935,

May 30, 1989], —— U.S. —— (1989). In the opinion

released by the Alabama Supreme Court, however, Jus-

tice Shores noted that there was nothing for the Court to

consider with regard to the question of punitive damages

because “no ruling” on the objection was obtained in the

trial court. There are three things to note with regard to

this ruling.

First, in Hosey v. Siebels Bruce Group, 363 So. 2d 751

(Ala. 1978), the same Justice authored an opinion hold-

8

ing that an objection to a particular proposed jury charge

by the trial court was sufficient to preserve an issue for

appeal. There is no mention of Hosey in Olympia Spa.

Second, in Alabama Power Co. v. Capps, 519 So. 2d

1328 (Ala. 1988), the Court specifically recognized that

an objection to the trial court’s charge “during instruc-

tions to the jury” would have been sufficient to preserve

an issue on the constitutionality of punitive damages.

Id. at 1330. There was no such objection in Capps, but

there was in Olympia Spa.

Third, Justice Jones authored an opinion applying

Batson v. Kentucky, 476 U.S. 79 (1986) to civil cases in

Alabama, Thomas v. Diversified Contractors, Inc., 551

So. 2d 343 (Ala. 1989). In Thomas trial counsel raised a

Batson objection. Although Justice Jones specifically

noted that “the trial judge did not rule on this objection”

before empaneling the jury, the absence of a ruling on

the objection in Thomas did not preclude the Alabama

Supreme Court from embracing the proposition that Bat-

son applied to civil cases. This position is in stark con-

trast with the language of Justice Shores that the ab-

sence of a specific ruling in Olympia Spa precluded review

of the constitutional issues raised.

The second case illustrating the approach of the state

court regarding the problem of punitive damages is

Charter Hospital of Mobile, Inc. v. Weinberg, 558 So. 2d

909 (Ala. 1990). In Weinberg the Court affirmed that

portion of a jury verdict which addressed a compensatory

damage award arising out of conversion, but for pro-

cedural reasons reversed and remanded for a new trial

solely on the issue whether a subsequent jury should

additionally award punitive damages on the same cause

of action. This unusual approach was undertaken despite

Alabama Rules of Civil Procedure 59(a)(1), which

clearly prohibits the retrial of partial issues, and despite

longstanding Alabama case law prohibiting the splitting

of a cause of action such as sanctioned by the Court in

Weinberg. O’Neal v. Brown, 21 Ala. 482 (1852); Terreli

v. City of Bessemer, 406 So. 2d 337 (Ala. 1981).

The foregoing analysis illustrates the approaches taken

by the Alabama Supreme Court to the problem of puni-

tive damages in the past few years.

Il. THE ALABAMA POST-VERDICT REVIEW PROC-

ESS DOES NOT SATISFY DUE PROCESS

In cases discussed in the preceding section, the Alabama

Supreme Court has touted its opinions in Hammond v.

City of Gadsden, 493 So. 2d 1374 (Ala. 1986) and Green

Oil Co. v. Hornsby, 589 So. 2d 218 (Ala. 1989) as satis-

fying due process requirements in a post-verdict review

by the trial court. Two observations are pertinent.

First, a review of all reported opinions by the Alabama

Supreme Court wherein the trial court’s Hammond find-

ings are set forth reveal that the Hammond procedure is

form without substance. The following list should con-

tain all reported decisions by the Court in which the

entire Hammond findings are recited, as of the time this

brief went to print, in chronological order: Alabama

Power Co. v. Cantrell, 507 So. 2d 1295 (Ala. 1987) (on

return after remand) ($1 million electrocution death ver-

dict left undisturbed) ; Black Belt Wood Co., Inc. v. Ses-

sions, 514 So. 2d 1249 (Ala. 1986) (on return after re-

mand) ($3.5 million accidental death verdict left undis-

turbed) ; State Farm Fire & Cas. Ins. Co. v. Lynn, 516

So. 2d 1873 (Ala. 1987) (on return after remand)

($250,000 insurance fraud verdict left undisturbed) ;

Davison v. Mobile Infirmary, 518 So. 2d 675 (Ala. 1986)

(on return after remand) (refusing to accept trial court’s

remittitur from $8 million to $1.35 million); Ensor v.

Wilson, 519 So. 2d 1244 (Ala. 1987) (on return after

remand) ($2.5 million verdict for brain damaged baby

left undisturbed) ; City Bank of Ala. v. Eskridge, 521

So. 2d 931 (Ala. 1988) ($62,500 verdict for fraud in

suit versus bank left undisturbed) ; Hayes v. Payne, 523

10

So. 2d 333 (Ala. 1987) (on return after remand)

($140,000 fraud verdict affirmed); John Hancock Vari-

able Life Ins. Co. v. Pierce, 580 So. 2d 719 (Ala. 1987),

cert. denied, 486 U.S. 1032 (1988) (on return after re-

mand) (affirming $150,000 punitive damages in fraud

action against insurance company) ; United Services Auto

Asso. v. Wade, 544 So. 2d 906 (Ala. 1989) (remitting

$3.5 million bad faith award by $1 million) ; Olympia

Spa v. Johnson, 547 So. 2d 80 (Ala. 1989) ($3 million

death award sustained); Industrial Chem. and Fiber-

glass Corp. v. Chandler, 547 So. 2d 812 (Ala. 1989) (on

return after remand) (two $2.5 million wrongful death

verdicts left undisturbed); Vintage Enterprises, Inc. v.

Jaye, 547 So. 2d 1169 (Ala. 1989), cert. denied, ——

US. , 110 S. Ct. 377 (1989) (affirming $500,000

punitive damage award for breach of warranty and fraud

in connection with sale of mobile home); and Pacifico v.

Jackson, (Ms. 87-834, Feb. 2, 1990], —— So. 2d ——

(Ala. 1990) (reinstating jury award of $1,650,000 in a

medical malpractice case). There are two cases in which

the Alabama Supreme Court has reduced punitive dam-

age awards pursuant to an extension of Hammond:

Green Oil Co. v. Hornsby, 589 So. 2d 218 (Ala. 1989)

(affirming remittitur of $125,000 on a $150,000 fraud

verdict) (quoting with approval the trial judge’s obser-

vation that “it doesn’t take a large verdict to be heard

and felt a few miles down the road in Union Springs by

two local individuals”); and Wilson v. Dukonia Corp.,

N.V., 547 So. 2d 70 (Ala. 1989) (setting aside an entire

$21,000 punitive damage award against an individual

because of his abject poverty).

The lack of effect given Hammond in the instant case

illustrates the foregoing observations. 553 So. 2d at 543.

More significantly, a post-verdict procedure wherein

the trial court, and not the jury, “tinkers with” the ver-

dict does not satisfy defendant’s constitutional rights to

have standards applied by the trier of fact rendering the

11

verdict. As even the Alabama Supreme Court has recog-

nized, “it is possible for a verdict to be excessive even

when it is the result of a properly functioning jury.”

Green Oil Co. v. Hornsby, 5389 So. 2d 218, 222 (Ala.

1989). As further noted in that case, “it is possible for

a jury to hear the evidence in a case, make findings of

fact, correctly apply the law, and still, albeit unwittingly,

assess damages that bear no reasonable relationship to

the accomplishment of those goals.” Jd.

Indeed, in the case before this Court, Justices Maddox

and Steagall, in a separate opinion, specifically noted

that the Hammond process is not sufficient to accord liti-

gants “all the due process protection the Constitution

envisions.” 553 So. 2d at 545. A third member of the

Alabama Supreme Court has likewise reached this con-

clusion. Charter Hospital of Mobile, Inc. v. Weinberg,

558 So. 2d 909 (Ala. 1990) (Houston, J., concurring).

This Court addressed the necessity of specific guide-

lines or rules by which the impartial execution of laws

could be secured as early as 1885 . Yick Wo v. Hopkins,

118 U.S. 356, 372-73 (1886). It is impressive to recog-

nize the broad variety of circumstances wherein this

Court has carefully scrutinized governmental activity in

the context of due process and whether there were ade-

quate guidelines for the enforcement of penalties: U.S.

v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921) (strik-

ing down legislation which was the equivalent of a “stat-

ute which in terms merely penalized and punished all

acts detrimental to the public interest when unjust and

unreasonable in the estimation of the court and jury”)

(recall the Alabama Pattern Jury Charge on punitive

damages quoted earlier in this brief) ; Baggett v. Bullitt,

377 U.S. 360 (1964) (holding unconstitutionally vague a

state law requiring a loyalty oath of teachers) ; Bowie v.

City of Columbia, 378 U.S. 347, 353 (1964) (holding ap-

plication of state criminal trespass laws unconstitution-

ally vague and violative of due process because of “in-

12

adequate guidance to the triers of fact”); Goldberg v.

Kelly, 397 U.S. 254 (1970) (extensive discussion of pro-

cedural due process required for notice and hearing in

connection with termination of benefits pursuant to a

federal aid program) ; Grayned v. City of Rockford, 408

U.S. 104, 108-109 (1972) (“laws must provide explicit

standards for those who apply them’) (“a vague law

impermissibly delegates basic policy matters to. . . juries

for resolution on an ad hoc and subjective basis.”) ; and

Mathews v. Eldridge, 424 U.S. 319 (1976) (addressing

procedural due process adequacy of pre-termination hear-

ing prior to termination of disability benefits). Some of

the preceding cases demonstrate microscopic examination

of whether adequate guidelines were provided to the trier

of fact and hence whether due process was afforded.

The most striking recent example, however, of the

Court’s concern about a lack of meaningful standards

for the trier of fact is with regard to the imposition of

capital punishment. Furman v. Georgia, 408 U.S. 238

(1972). Furman should not be dismissed as a criminal

case. In Alabama, the due process clause has been held

to be the constitutional underpinning for applying Bat-

son v. Kentucky, 476 U.S. 79 (1986) to civil cases.

Thomas v. Diversified Contractors, Inc., 551 So. 2d 343

(Ala. 1989). Accord: Fludd v. Dykes, 863 F.2d 822

(11th Cir. 1989), cert. denied, U.S. ——, 110 S. Ct.

201 (1989). The fact Batson was a criminal case was

no bar to holding that civil litigants are entitled to the

Same process due criminal litigants. Indeed, the due proc-

ess clause itself makes no distinction between civil and

criminal cases. Thus posed, the question is simply

whether criminal defendants are entitled to more due

process than civil defendants in the area of guidelines

for the imposition of punishment. Surely the answer

must be that civil litigants are entitled to the same re-

quirement of adequate guidelines for the imposition of

punishment as criminal defendants. This is particularly

true given the fact that we are dealing with punitive

13

damages which are designed to serve a punishment effect.

For this reason, the Hamond procedure does not address

the total absence of guidelines provided the trier of fact

in Alabama in the assessment of punishment: punitive

damages. The Hammond procedure, therefore, is consti-

tutionally deficient.

CONCLUSION

There is a significant problem with the imposition of

punitive damages in Alabama. The Hammond post-

verdict review procedure has not resulted in any mean-

ingful modification of the law, and does not satisfy a de-

fendant’s due process rights in providing a jury stand-

ards by which to award punitive damages.

Respectfully submitted,

Of Counsel: DAVIS CARR

H. E. NIX, JR. HAND, ARENDALL, BEDSOLE,

NIX & HOLTSFORD GREAVES & JOHNSTON

Post Office Box 4128 Post Office Box 123

Montgomery, Alabama 36103 Mobile, Alabama 36601

President, Alabama Defense (205) 432-5511

Lawyers Association Counsel for Amicus Curiae

APPENDICES

APPENDIX A

PARTIAL LIST OF ALABAMA JURY VERDICTS

AWARDING PUNITIVE DAMAGES OF $500,000 OR

MORE FROM JANUARY 1, 1990 TO APRIL 30, 1990

(* indicates wrongful death case)

1990

1. Wilburn v. Luzaire, et al.

Mobile County Circuit Court

CV-88-147 et seq. (April, 1990)

$50,000,000 punitive damages, plus

previous settlement of $11,500,000 for

wrongful death of five-member family

resulting from alleged negligence involving

heating unit.

Sue Chumney as Administrator of the 3,000,000 *

Estate of Christopher E. Long, deceased v.

Flowers Hospital

Houston County Circuit Court

CV-87-587 (1990)

Wrongful death of child.

Settled post-trial.

Tate v. P.P.G. Industries

US. District Court for the Southern

District of Alabama (February 19, 1990)

Punitive damages for wantonness in

wrongful death case.

Carter v. Old American Insurance Company 1,400,000

Lauderdale County Circuit Court (April,

1990)

$1,400,000 punitive damages for bad faith

of health insurance claim.

See 544 So.2d 917 (Ala. 1989) wherein

summary judgment for the insurer was

reversed.

2a

. Burden v. Empire Fire & Marine Ins. Co.

Lauderdale County Circuit Court

CV-88-244 (March 2, 1990)

Alleged bad faith for failing to settle

uninsured motorist claim. $400,000

awarded for compensatory damages and

$1,000,000 for punitive damages.

Post-trial motions pending.

. American Employers Insurance Company

v. Southern Seeding Services, Inc., et al.

U.S. District Court for the Northern

District of Alabama CV 87-G-0294S

Verdict awarding $400,000 in

compensatory damages and $750,000 in

punitive damages on February 22, 1990.

Appeal filed 3/27/90.

. Braden v. Dorsey Motor Sales, Inc.

Autauga County Circuit Court (April 3,

1990)

$1,000,000 punitive damages, $15,6000

compensatory damages for alleged

fraudulent misrepresentation by car dealer

that a used car was “new”.

. William Thornton v. Yamaha Motor Co.,

Ltd., et al

Montgomery County Circuit Court

CV-88-1639-TM (April 18, 1990)

Wrongful death.

No appeal pending.

1,400,000

$1,150,000

1,000,000

750,000 *

3a

PARTIAL LIST OF ALABAMA JURY VERDICTS

AWARDING PUNITIVE DAMAGES OF $500,000 OR

MORE FROM JANUARY 1, 1989 TO DECEMBER 81, 1989

(* indicates wrongful death case)

1989

. Braswell v. Conagra $13,150,000

U.S. District Court for Middle District

of Alabama (Southern Division)

88-00741-T-S (November, 1989)

Breach of contract and fraud. $4,050,000

in compensatory damages and $1,100,000

in punitive damages.

Appeal pending.

. Sigafoose, v. Babson Brothers Co. 10,000,000

Baldwin County Circuit Court

C’7-86-573 (1989)

$10 million punitive damages for fraud

involving $21,000 compensatory claim.

Settled post-trial

. Robows v. State Farm Mut. Auto. Ins. Co. $5,000,000

541 So.2d 477 (Ala. 1989)

Macon County

$5 million punitive dumages for bad faith

and fraud involving $700 disability claim.

Remitted to $500,000. Affirmed by

Alabama Supreme Court.

. Thornton v. Knollwood Park Hospital $5,000,000 *

Mobile County Circuit Court

CV-85-1275 (1989)

Wrongful death.

Settled on Appeal

. Turner v. Alabama Power Company 4,000,000 *

Montgomery County Circuit Court

CV-88-1700-PH (August 30, 1989).

Wrongful death suit.

Appeal pending.

10.

11.

4a

United Serv. Auto Ass’n v. Wade

544 So.2d 906 (Ala. 1989)

Walker County a

$3.5 million non-jury punitive damages

verdict for bad faith remitted to $2.5

hai damages of $166,795 plus

$21,962 on contract count.

Appeal pending.

Ford v. Colonial Mortgage Co.

Russell County Circuit Court

CV-89-010 (November 1989)

Punitive damages for fraudulent breach of

residential home loan commitment

Appeal pending

Lindblom v. Intercontinental Life Ins. Co.

Jefferson County Circuit Court

CV-86-7156 (1989)

Bad faith & fraud involving $10,000

death benefit

Appeal pending

Olympia Spa v. Johnson

547 So.2d 80 (Ala. 1989)

Mobile County

Wrongful death

Affirmed by Alabama Supreme Court

Land & Associates, Inc. v. Simmons

[Ms. 87-1818, December 22, 1989 |

So.2d —— (1989)

Mobile County ;

Fraud involving $10,000 in life insurance

roceeds

‘sdienet by Alabama Supreme Court

Majid Jahandarfard, et al v. Lomax

Killough, et al

Madison County Circuit Court

CV88-1269P (November 8, 1989)

Wrongful Death.

Appeal pending.

$3,500,000

3,000,000

3,000,000

3,000,000 *

2,500,000

2,500,000 *

5a

12. Pettus, Estate of v. Vari-Care

13.

14.

15.

16.

17.

Mobile County Circuit Court

CV-86-196 (June 20, 1989)

Wrongful death.

Appeal pending.

Blackburn, et al. v. Altus Bank

Mobile County Circuit Court

CV-88-2263 (November 30, 1989)

Alleged fraud. Two plaintiffs.

$1,538,753 for one plaintiff, $500,000

for other plaintiff.

Appeal pending.

White, et al v. Georgia Casualty Insurance

Co.

Barbour County Circuit Court, Clayton

Division

CV-84-037 (June 28, 1989)

Bad faith action.

Appeal pending.

Stoval, Estate of v. Montgomery Health

Care et al.

Montgomery County Circuit Court

CV87-173-TH (1989)

Wrongful death

HealthAmerica, et al. v. Menton

551 So.2d 235 (Ala. 1989)

Mobile County

Fraud involving $2,400 claim for medical

benefits.

Affirmed by Alabama Supreme Court;

Cert. denied by Supreme Court of

United States

Phillips v. United American Ins. Co.

Etowah County Circuit Court

CV-87-132JSS (June 2, 1989)

Bad faith and fraud involving $264 unpaid

balance on medical claim.

Settled post-trial

2,500,000 *

$2,038,753

2,000,000

2,000,000 *

1,800,000

1,800,000

18.

19.

20.

21.

22.

23.

6a

Turner v. Deutz-Allis Credit Corporation

Barbour County, Clayton Division

CV-85-048 (October 9, 1989)

No post-trial relief. Appeal pending.

Beyer v. Beech Aircraft Corp

Jefferson County Circuit Court

CV-81-2120 (1989)

Wrongful death

Terry v. John Carner and Leisure

American, Inc.

Jefferson County Circuit Court

CV 85-6777 (November 1, 1989)

Fraud claim involving $5,500 actual

damages.

Settled prior to appeal

Porter v. Hook

554 So.2d 382 (Ala. 1989)

Jackson County

Action for breach of written contracts.

Breach of unwritten joint venture

agreement and fraud against cable

television owner.

Remitted to $300,000 by trial court.

Full verdict reinstated by Supreme Court

of Alabama.

Central Alabama Electric Coop v. Tapley

546 So.2d 371 (Ala. 1989)

Tallapoosa County

Wrongful death.

Affirmed by Alabama Supreme Court

Pacific Mutual Life Ins. Co. v. Haslip

[Ms. 87-842, Sept. 18, 1989]

553 So.2d 587 (Ala. 1989)

Fraud. Affirmed by Alabama Supreme

Court.

Cert. granted by Supreme Court of

United States.

1,609,500

1,500,000 *

$1,500,000

1,300,000

1,000,000 *

1,000,000

25.

26.

Ta

Carlis v. Ft. Deposit Motor Co., et ul

Macon County Circuit Court

CV-87-80 (April 19, 1989)

Fraud involving sale of credit life

insurance; approximately $1,000

compensatory damages.

$1,000,000 remitted to $250,000.

Appeal pending

Shelby County v. Bailey

545 So.2d 743 (Ala. 1989)

Jefferson County

Wrongful death—$500,000 each for two

deaths.

Affirmed by Alabama Supreme Court.

United American Ins. Co. v. Brumley

542 So.2d 1281 (Ala. 1989)

Marion County

Bad faith involving compensatory

damages of $5,600.

Affirmed by Alabama Supreme Court.

Rehearing denied.

Battles’ Entertainment, Inc. v. First Federal

Savings & Loan Association of Russell

County, et al.

Lee County Circuit Court

CV-88-083 (April 20, 1989)

Fraud ia connection with a sale of

real estate.

Settled post-trial.

Robert McDonald v. Continental Casualty

Company (CNA)

Houston County Circuit Court

(March 9, 1989)

Alleged tort of outrage due to late payment

of workmen’s compensation benefits.

Motions for J.N.O.V. and/or remittitur

denied by trial court.

Appeal pending.

1,000,000

1,000,000 *

$1,000,000

800,000

750,000

29.

30.

31.

32.

8a

Thomas v. P~incipal Mut. Ins. Co.

Mobile County Circuit Court

CV-85-1275 (1989)

Bad faith failure to pay $1,000 death

benefit

Set aside by trial court on defendant’s

motion for J.N.O.V.—Appeal pending

Lombus v. Mitchell Transport, Inc., et al

Talladega County Circuit Court

CV-89-90 (19—)

Wrongful death.

Post-trial motions filed.

Harris v. M & S Toyota, Inc.

Jefferson County Circuit Court

CV-86-1344 (August 22, 1989)

Alleged fraud involving sale of used car.

Verdict set aside on J.N.O.V.

Appeal pending.

Mallory v. Hobbs Trailers

554 So.2d 966 (Ala. September 29, 1989)

Jefferson County

Wrongful death.

Trial court granted defendant’s motion for

J.N.O.V.

Original verdict reinstated by Supreme

Court of Alabama.

Rehearing denied.

Vintage Enterprises v. Jaye

547 So.2d 1169 (Ala. 1989)

Tallapoosa County

$500,000 punitive damages and $20,000

compensatory, relating to sale, order,

delivery of mobile home, fraud,

wantonness, negligence, warranty and

Magnuson-Moss theories.

Affirmed by Alabama Supreme Court.

750,000

600,000 *

500,000

$500,000 *

500,000

9a

34. Watson, Watson & Rutland v. Rosser

Fabrap Int'l

US. District Court for Middle District

of Alabama

88-H-1292-N (M.D. Ala. 1989)

Intentional interference with business

relationship.

Post-trial motion pending

500,000

10a lla

PARTIAL LIST OF ALABAMA JURY VERDICTS 6. Proctor & Gamble Co. v. Staples $2,750,000 *

AWARDING PUNITIVE DAMAGES OF $500,000 OR 551 So.2d 949 (Ala. 1989)

MORE FROM JANUARY 1, 1988 TO DECEMBER 31, 1988 oe (March 2, 1988)

(* indicates wrongful death case) Reversed on appeal. Settled thereafter.

1988 7. Walls v. Colonial Mortgage Co. 1,700,000

. Turner v. Southern Life & Health Ins.Co. $5,000,000 Russell County Circuit Court

Macon County Circuit Court CV87-194 (1988)

CV-87-91 (1988) Fraud involving breach of residential home

Punitive damages for bad faith and fraud loan commitment ; compensatory damages

involving $1,000 death benefits. of $2,500 or less.

Remitted to $500,000. Settled pending appeal

Appeal pending. 8. Trawick v. Michaels of Oregon Co. 1,000,000

. Industrial Chemical & Fiberglass v. 2,500,000 * USS. District Court for Middle District of

Chandler 1,250,000 Alabama

547 So.2d 812 (Ala. 1988) 88-C-413N (December 21, 1988)

Jefferson County Products liability involving rifle swivel.

$3,750,000 punitive damages—$2,5 million Appeal pending on certified question of

for wrongful death and $1.5 million for Alabama Supreme Court.

breach of warranty [Aw

Affirmed by Alabama Supreme Court 9. on ther International 1,000,000 *

. Industrial Chemical & Fiberglass v. Ensley 2,500,000 * ov-anave aie iaeeenss

547 So.2d 812 (Ala. 1988) 1,250,000 Wrongful death

Jefferson County

$3.75 million—$2.5 million for wrongful 10. Achord v. Momar, Incorporated 863.625

death and $1.25 million for breach of United States District Cour’ for the Middle

warranty District of Alabama, Northern Division

Affirmed by Alabama Supreme Court No. 87-D-0824-N (September 6, 1988)

. Heathcoat v. Mitchell, Potts, et al. 3,000,000 * Products liability suit. Verdict includes

U.S. District Court for the Northern $500,000 punitive damages.

District of Alabama No appeal. |

mat ae 85-7288 (1988) 11. Carner, et al v. Commercial Union 811,804

Insurance Company, et al.

. Clardy v. Sanders 2,750,000 * Jefferson County Circuit Court

551 So.2d 1057 (Ala. 1989) CV-82-3504 (1988)

Montgomery Couaty (January 15, 1988) i Breach of contract and bad faith

Wrongful death.

Affirmed by Alabama Supreme Court.

12.

13.

14.

15.

16.

of"

12a

Ramsey Health Care, Inc. v. Follmer

24 ABR 1321

Jefferson County Circuit Court

CV-87-7215

Alleged fraud.

Affirmed by Alabama Supreme Court.

Alabama Power Co. v. Courtney

539 So.2d 170 (Ala. 1988)

Chilton County

Wrongful death.

Affirmed by Alabama Supreme Court.

Consolidated Freightways v. Pacheco-Rivera

524 So.2d 346 (Ala. 1988)

Jefferson County

Wrongful death.

Alabama Farm Bureau v. Hixon

533 So.2d 518 (Ala. 1988)

Montgomery County

Wrongful death.

Reversed on appeal.

Alabama Power Co. v. Capps

519 So.2d 1328 (Ala. 1988)

Butler County

Wrongful death.

Affirmed by Alabama Supreme Court.

L. W. Johnson & Assoc. v. Rivers Const. Co.

532 So.2d 618 (Ala. 1988)

Marion County

Fraud action by construction county

against developer involving $165,000

compensatory damages

Affirmed by Alabama Supreme Court

800,000

$750,000 *

525,000 *

500,000 *

500,000 *

500,000

13a

PARTIAL LIST OF ALABAMA JURY VERDICTS

AWARDING PUNITIVE DAMAGES OF $500,000 OR

MORE FROM JANUARY 1, 1987 TO DECEMBER 31, 1987

(* indicates wrongful death case)

1987

1. Dale, Estate of v. Griffin, Dept. of Mental

~)

Health

Montgomery County Circuit Court

CV85-138-K (1987)

Wrongful death

676 F. Supp. 1142 (S.D. Ala. 1987)

Reduced punitive damages from

$5,041,694.04 to $300,000 in one case, and

from $2,519,439.85 to $150,000 in another.

Claim for conversion, intentional

interference with contractual relations and

wrongful exercise of lien rights.

New trial granted on refusal to remit

punitive damages.

. Super Valu Stores, Inc. v. Peterson

506 So.2d 317 (Ala. 1987)

Etowah County

Breach of contract and fraud in

employment relationship.

Affirmed by Alabama Supreme Court

Aetna Life Ins. Co. v. Lavoie

505 So.2d 1050 (Ala. 1987)

Mobile County

$3 million punitive damages for bad

faith refusal to pay $1,650 medical claim.

Initially affirmed by Alabama Supreme

Court, then vacated on appeal to U.S.

Supreme Court and thereafter remitted to

$500,000 by Alabama Supreme Court

and affirmed.

Esstate of Jackson v. Phillips Petroleum Co.

$11,701,372 *

5,100,000

2,550,000

5,000,000

3,500,000

10.

14a

State Farm Mutual Automobile Insurance

v. Hollis, Adm.

ABR 87-808

Coffee County Circuit Court

CV-8538 (1987)

Bad faith claim alleging negligence or

wanton failure to settle lawsuit and

wanton failure to file supersedeas bond.

Reversed and remanded for new trial.

Talmage v. Humana Hospital Florence, et al

Lauderdale County Circuit Court

CV-85-135 (September 10, 1987)

Wrongful death.

Settled post-trial.

Curry, Estate of v. Alabama Gas, et al

Montgomery County Circuit Court

CV86-323-G (1987)

Wrongful death

North Carolina Mut. Life Ins. Co. v. Holley

5383 So.2d 497 (Ala. 1987)

Tallapoosa County

Bad faith.

Remitted to $500,000 by Alabama

Supreme Court.

Best Plant Food Products, Inc. v. Cagle

510 So.2d (Ala. 1987)

Jackson County

Breach of warranty /fraud/deceit.

Affirmed by Alabama Supreme Court.

Hixon v. Village West Trailer Park

Montgomery County Circuit Court

CV-84-1447-PR (February 4, 1987)

Wrongful death.

Reversed and rendered on appeal.

$1,500,000

1,500,000 *

1,250,000 *

1,000,000

972,000

750,000 *

15a

11. Harmon v. Motors Ins. Corp.

493 So.2d 1870 after remay.d 525 So.2d

411 (1987)

Calhoun County

$500,000 punitive damages for fraud

remitted to $40,000.

Affirmed conditionally

500,000

16a 17a

PARTIAL LIST OF ALABAMA JURY VERDICTS nitive da Sa Gand tereahet

AWARDING PUNITIVE DAMAGES OF $500,000 OR pea ra a! at Sep mee da

MORE FROM JANUARY 1, 1986 TO DECEMBER 31, 1986 Affirmed by Alabama Supreme Court.

(* indicates wrongful death case) Appeal dismissed by 486 U.S. 1028, 108

S.Ct. 2097, 100 L.Ed.2d 596

1986 (U.S.Ala., May 31, 1988)

1. Davison v. Mobile Infirmary $8,000,000 6. Alabama Power Co. v. Cantrell 1,000,000 *

518 So.2d 675 (Ala. 1986) 507 So.2d 1295 (Ala. 1986)

Mobile County St. Clair County

$8 million punitive damages for medical Wrongful death.

malpractice remitted to $1,350,000 Affirmed by Alabama Supreme Court.

2. Beck, Murray, Tull v. Piper Aircraft, et al. 5,175,000 * —s oe prot ao 1028, 108

Jefferson County Circuit Court U S.Ala. M 31 1988)

CV-83-6266 (1986) a

Wrongful death. 7. AmSouth Bank v. Speigner 1,000,000 *

3. Black Belt Wood Yard v. Sessions 8,500,000 * —- 1986)

oe —™ 1986) Wrongful completion, cashing of $25,000

Wrongful death. rel 7" :

Affirmed by Alabama Supreme Court d

4. Patricia L. Crandall, et al. v. Rudolph V. 3,035,000 * . rma oe Company of Alabama, 1,000,000

Williams ne. v. John Ellis, et al.

514 So.2d 1267 (Ala. 1987) | poe rte = cae Court

Madison County Circuit Court | tame ter» don Sy -

CV-85-461, CV-85-379 consolidated involving proposed purchase

(January 13, 1986) | of logging equipment. Compensatory

One death—$500,000 ; one personal injury— — in the amount of $78,416 and

$2,500,000 (compensatory and punitive— punitive damages in the amount of $921,584.

,0UU, pe: ry Pp Remitted to $200,000

general verdict) ; two personal injuries—

$2,500 each (compensatory and puntive—

general verdict) ; one subrogation—$30,000.

Affirmed.

5. Treadwell Ford, Inc. v. Campbell $1,000,000 *

485 So.2d 312 (Ala. 1986) 350,000

Mobile County

Three plaintiffs—$1,000,000 wrongful

death ; $60,000 negligence; and $350,000

which included compensatory damages and

18a

PARTIAL LIST OF ALABAMA JURY VERDICTS

AWARDING PUNITIVE DAMAGES OF $500,000 OR

MORE FROM JANUARY 1, 1985 TO DECEMBER 31, 1985

(* indicates wrongful death case)

1985

1. Holt v. State Farm Mutual Auto Ins. Co. $25,000,000

Clay County Circuit Court

CV-82-060 (1985)

Fraud involving UM stacking; $10,000

contract claim

Settled post-trial

2. McMillian v. Massey Ferguson, Inc., et al. 10,500,000

Mobile County Circuit Court

CV-82-686 (1985)

$10.5 million general verdict which included

$584,000 actual damages for partial leg

amputation caused by alleged wanton-

ness in design & manufacture of grain

auger. Settled pending appeal

3. General Motors Corp. v. Edwards 4,000,000 *

482 So.2d 1176 (Ala. 1985)

Jefferson County

Two plaintiffs at $2 million each

Remitted by trial court to $1.4 million each

Affirmed by Alabama Supreme Court

Overruled by Schwartz v. Volvo North Ameri-

can Corp., 554 So.2d 927, 58 U.S.L.W. 2132

(Ala. July 28, 1989)

4. May v. Lloyd Noland Foundation 4,000,000 *

Jefferson County Circuit Court

CV-79-583 (1985)

Wrongful death

Settled Post-Trial

5. Wright v. Superior Gas e 3,600,000 *

Macon County Circuit Court

CV-84-47 (1985)

Wrongful death.

Settled post-trial

10.

19a

American Pioneer Life Ins. Co. v. Sandlin $3,000,000

470 So.2d 657 (Ala. 1985)

Marion County

$3 million punitive damages for fraud :n-

volving $100,000 compensatory damages.

Affirmed by Alabama Supreme Court.

Pasquale Food Co. v. Shakey’s Inc. 3,000,000

Jefferson County Circuit Court

CV-82-2606 (1985)

Punitive damages for intentional interference

with business relationship and improper

acquisition of trade secrets.

Hudson v. K&S Industries, Inc. 2,000,000 *

Montgomery County Ciréuit Court

CV-84-593 (1985)

Wrongful death

Nationwide Mut. Ins. Co. v. Clay 1,250,000

469 So.2d 533 (Ala. 1985)

Mobile County

Bad faith involving $40,000 disability claim.

Affirmed by Alabama Supreme Court.

Kathy Dunaway, as Mother and Custodial 500,000 *

Parent of Daniel Allen Dunaway, a Minor,

v. Alabama Power Company

Montgomery County Circuit Court

CV-84-650-PR (December 13, 1985)

Wrongful death

Appealed. JNOV for Defendant on 4/02/87.

(Reversed )

20a

APPENDIX B

ALABAMA LAW REVIEW

VOLUME 40 SPRING 1989 NUMBER 3

Contents

SYMPOSIUM: PUNITIVE DAMAGES

PUNITIVE DAMAGES: INTRODUCTION AND SYNOPSIS

Harold See

THE MORAL FOUNDATION OF PUNITIVE DAMAGES

David G. Owen

PUNITIVE DAMAGES: DIVERGENCE IN SEARCH OF

A RATIONALE

Bruce Chapman and Michael Trebilcock

ENDING PUNISHMENT IN “PUNITIVE” DAMAGES:

DETERRENCE-MEASURED REMEDIES

Dan B. Bobbs

A PROPOSAL FOR FURTHER COMMON LAW

DEVELOPMENT OF THE USE OF PUNITIVE DAMAGES

IN MODERN PRODUCT LIABILITY LITIGATION

Malcolm E. Wheeler

PUNITIVE DAMAGES, DUE PROCESS, AND THE JURY

Dorsey D. Ellis, Jr.

INSURABILITY AND PUNITIVE DAMAGES

George L. Priest

No-FAULT PUNISHMENT

Peter Huber

WHY PUNITIVE DAMAGES DON’T DETER

CORPORATE MISCONDUCT EFFECTIVELY

E. Donald Elliott

COMMENTS ON Why Punitive Damages Don’t

Deter Corporate Misconduct E ffectively

Michael Wells

687

705

741

831

919

975

1009

1037

1053

1073

2la

REREADING PUNITIVE DAMAGES: BEYOND THE

PUBLIC/PRIVATE DISTINCTION

Angela P. Harris

A COMMENT ON PROPOSALS FOR DETERMINING

AMOUNTS OF PUNITIVE AWARDS

Jerry J. Phillips

AN ECONOMIC EXPLANATION OF PUNITIVE

DAMAGES

David Friedman

PUNITIVE DAMAGES FOR DETERRENCE: WHEN

AND How MucnH?

Robert D. Cooter

PUNITIVE DAMAGES AND SUBJECTIVE STATES OF

MIND: A POSITIVE ECONOMIC THEORY

Mark F. Grady

PUNITIVE DAMAGES: A SUPPORTING THEORY

Harold See

AFTERWORD—Browning-Ferris: THE SUPREME

COURT’S EMERGING MAJORITIES

Gary T. Schwartz

1079

1117

1125

1143

1197

1227

1237