# Petition for Writ of Certiorari — Elmo Greer & Sons Construction Co. v. Goff > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1560%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1008 ## Text Supreme Court, U.S. No ———g-921 JAN 28 2010 OFFICE OF THE CLERK 3n The _ Supreme Court of the Anited States ELMO GREER & SONS CONSTRUCTION COMPANY, INC., Petitioner, ¥. DAVID GOFF, JOYCE GOFF and AGNES GOFF, Respondents. On Petition For A Writ Of Certiorari To The Tennessee Supreme Court ¢ PETITION FOR WRIT OF CERTIORARI LINDA J. HAMILTON MOWLES, ESQ. Tennessee BPR No. 010464 LEWIS, KING, KRIEG & WALDROP, P.C. 620 Market Street, Fifth Floor P. O. Box 2425 Knoxville, Tennessee 37901 (865) 546-4646 Attorneys for Petitioner COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Is a judgment that bears a triple-digit ratio of punitive to compensatory damages a violation of Petitioner’s due process rights under the Fourteenth Amendment to the Constitution? May a state Supreme Court constitutionally im- pose a punitive damage award that bears « multiplier ratio, punitive to compensatory, of 151 to 1 when this award is in complete disregard of the United States Supreme Court’s holding that punitive damages in excess of a single-digit multiplier approach being an excessive fine that is a violation of the Petitioner’s constitutional due process rights? i LIST PURSUANT TO RULE 29.6 Petitioner Elmo Greer & Sons Construction Com- pany, Inc. is a privately held corporation organized and existing under the laws of the State of Kentucky. il TABLE OF CONTENTS Page QUESTIONS PRESENTED ...........................2.060 i LIST PURSUANT TO RULE 29.6....................... li ae SF APE ET piss kee steed caxinntchaneniecaseanens ill pV SIR Be oF tty 8 ley | >. Fenner vil Ce MUNROE os ae citcusscsaccnsviteesvacespeatweeesseoen 1 Pee Mov tnscncinsussyucccencscu ease eee 2 RULES INVOLVED IN THIS CASE ................... 3 STATEMENT OF THE CASE........................22000 4 REASONS FOR GRANTING THE WRIT ........... 16 I. THE DECISION OF THE TENNESSEE SUPREME COURT ESTABLISHING THE PUNITIVE DAMAGE AWARD WITH A MULTIPLIER OF 151 TO 1 IS IN SHARP CONFLICT WITH THE PRECEDENT OF THIS COURT AND FAR EXCEEDS THE CONSTITUTIONAL DUE PROCESS LIM- ITS ON PUNITIVE DAMAGES.................. 16 A. FOR MORE THAN A DECADE, THE UNITED STATES SUPREME COURT HAS HELD THAT, AT MOST, A MOD- EST DOUBLE-DIGIT MULTIPLIER WOULD PASS CONSTITUTIONAL MUSTER WHEN APPLIED TO THE RELATIONSHIP BETWEEN PUNI- TIVE AND COMPENSATORY DAM- AGES AWARDED BY A JURY UNDER ESPECIALLY EGREGIOUS CIRCUM- SF ERAN D Gs sheenes cuibeknnigaeacion capresso 18 1V TABLE OF CONTENTS — Continued Page B. THE STATE SUPREME COURT CAN- NOT IGNORE CONSTITUTIONAL LIMITATIONS ON DAMAGES _IM- POSED BY THE UNITED STATES ELSE PARES SAFEIECE cevnesccsvectcestvessencctsees 22 Il. THE TENNESSEE SUPREME COURT HAS SEIZED AUTHORITY FOR ITSELF THAT IS SPECIFICALLY RESERVED eR Se ETE ck capadevivensavnoadvessctperoians 28 A. THE STATE CANNOT CONCLUDE THAT WHAT IS DECLARED UNCON- STITUTIONAL BY THE UNITED STATES SUPREME COURT IS, NONE- THELESS, ALLOWABLE UNDER THE STATE CONSTITUTION, AS ANY STATE ANALYSIS OF A CONSTITU- TIONAL ISSUE IS SUBSERVIENT TO THE UNITED STATES CONSTI- TUTION AND ITS INTERPRETATION BO BT bakin tekssdeiesinanccsvineneoee 29 B. THE UNILATERAL DETERMINATION THAT, IN TENNESSEE, PUNITIVE DAMAGES CAN BE AWARDED IN AN AMOUNT THAT IS IN EXCESS OF 150 TIMES THE COMPENSA- TORY DAMAGE AWARD RESULTS IN THE STATE SUPREME COURT USURPING THIS COURTS PREROGA- TIVE TO INTERPRET AND ESTABLISH CONSTITUTIONAL DUE PROCESS CR UII 65 stv ciciwnculnececestinnionsecsonvecs 30 TABLE OF CONTENTS — Continued Page Ill. THE ISSUE IS IMPORTANT AND HAS NATIONWIDE IMPACT....................2cceeees 35 Sirs iaisvucheucetashapsentssaniniiaucaretoneesiceriek 37 APPENDIX INDEX November 3, 2009 decision of Tennessee Supreme Court, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. M2006-02660-SC-RIT-CV ooo... occ cee cone ee App. 1 November 3, 2009 Judgment of Tennessee Supreme Court, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. M2006-02660-SC-RII-CV .....0. oo. ee cee eee eee eeee ee App. 52 May 16, 2008 decision of Tennessee Court of Appeals for the Middle District of Tennessee, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. M2006-02660- SII sissincch nob icnsdcdoinscesegaassdunacupsinad terse App. 54 November 9, 2006 Order of Circuit Court for White County, Tennessee, Honorable John A. Turnbull, Presiding, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. November 9, 2006 Punitive Damages: Findings of Fact and Conclusions of Law filed in Circuit Court for White County, Tennessee, Honorable John A. Turnbull, Presiding, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. CC-320 ............... App. 87 v1 TABLE OF CONTENTS — Continued Page July 14, 2006 Judgment on Jury Verdict filed in Circuit Court for White County, Tennessee, Honorable John A. Turnbull, Presiding, David Goff et al. v. Elmo Greer & Sons Construction Co., Inc., No. CC-320 ....App. 105 TABLE OF AUTHORITIES Page CASES: Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003)..... an BMW of North America, Inc. v. Gore, 517 U.S. I a ae passim Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) ...........0...... eee. 24 Chandler v. Florida, 449 U.S. 560 (1981)............ 22, 37 Colautti v. Franklin, 439 U.S. 379 (1979).........0........ 23 Connally v. General Constr. Co., 269 U.S. 385 ERED chcaconmetecn sdabaiecenbuedcaanunicngiareienicaemmedttcousion 20 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 582 U.S. 424 (ZOOL) ......-c.crcccresserss 20, 23 Exxon Shipping Company v. Baker, 128 5S. Ct. ME I aks oi cuaiehusacsck cCesistaedeincetaiicckasaisinds 15, 21, 27 Goff v. Elmo Greer & Sons Construction Co., Inc., 2008 Tenn. App. LEXIS 296 (Tenn. Ct. App. May 16, 2008)........ sualbsuuememekdouervausbudas denice 12,13 Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ....20, 30 Hopkins v. Bonvicino, 2009 U.S. App. LEXIS pi Bi. | _) ne ee ee | Minnesota v. Nat’l Tea Co., 309 U.S. 551 (1940)....... 31 Pacific Mutual Life Insurance Co. v. Haslip, Ie Oe I i vasscs cee cna accceceecivatcenecsceeens 14,18 Vill TABLE OF AUTHORITIES — Continued Page Philip Morris USA v. Williams, 549 U.S. 346 Ie ee a le 19, 20, 23 State Farm Mutual Automobile Insurance Co. v. Campbeil, 538 U.S. 408 (2003) ............... .... Dassim TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993)................ datlauaecacauine 14, 20 United States ex rel. Lawrence v. Woods, 1970 U.S. App. LEXIS 6870 (7th Cir. Tl. 1970).. 35 STATUTES, CONSTITUTION AND RULES: 28 U.S.C. § 1257(a)..... FRC OSE RE MERA eRe Fy Ly. COORBCIEUIEIOR 000. cccccces. ee 3. 35 U.S. Const., amend. XIV 3, 22 (Jnited States Supreme Court Rules, RRO Ce ot a ae | PE'TITION FOR A WRIT OF CERTIORARI Petitioner prays that a writ of certiorari issue to review the opinion and resulting judgment of the Tennessee Supreme Court entered in this case on November 3, 2009, said judgment imposing an un constitutionally excessive punitive damage award of $500,000 where the jury awarded compensatory damages of $3,305. In other words, the Tennessee Supreme Court approved a punitive to compensatory damage ratio of 151 to 1. No case considered by this Court has sanctioned a three-digit ratio as being con- stitutionally valid and not in violation of the Peti- tioner’s due process rights; yet, this is the award rendered by the Tennessee Supreme Court in its November 3, 2009 decision. Petitioner prays that this due process violation will be reviewed and corrected by this Court. OPINIONS BELOW The opinion of the Tennessee Supreme Court rendered November 3, 2009, is reported at 2009 Tenn. LEXIS 701 and is reprinted in the Appendix (“App.”) at App. 1. The Judgment of the Tennessee Supreme Court is found at App. 52. The unpublished opinion and judgment of the Tennessee Court of Appeals, rendered May 16, 2008, is reported at 2008 Tenn. App. LEXIS 296 and is reprinted at App. 54. The Tennessee Circuit Court’s unpublished judgment on the jury verdict, rendered July 14, 2006, is reprinted at App. 105. The Tennessee Circuit Court’s unpub lished order on post-trial motions, filed November 9, 2006, is reprinted at App. 83. The Tennessee Circuit Court’s unpublished “punitive damages: findings of fact and conclusions of law”, filed November 9, 2006. is reprinted at App. 87 JURISDICTION The jury tral for this case commenced in the Circuit Court for White County, Tennessee on June 28, 2006. The verdict was rendered against Petitioner finding compensatory damages of $3,305 and punitive damages of $2,000,000, and judgment was entered by the trial court on July 14, 2006. App. 105. On No- vember 9, 2006, the trial court entered its order on post-trial motions, App. 83, reducing the punitive award to $1,000,000, as this was the amount sued for by the Respondents. [T.R. Vol. I, pp. 82-84] The Tennessee Court of Appeals heard Peti- tioner’s timely appeal and rendered its decision on May 16, 2008, reversing and remanding the punitive damage award to the trial. court for further con- sideration. App. 54. The Respondents filed for discretionary review by the Tennessee Supreme Court and on November 3, 2009, the state supreme court rendered its unanimous opinion, reducing/modifying the punitive damage award to $500,000. App. 1. — rom ll, ~— — ee " = This’ Petition is due to be filed on or before Kebruary 1, 2010 The jurisdiction of thi Court is invoked pul suant to 28 U.S.C. § 1257(a RULES INVOLVED IN THIS CASE United States Supreme Court Rules, Rule 10(c) A state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court United States Constitution. Fourteenth Amendment. Section lL: Section 1. All persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immu nities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 28 U.S.C. § 1257(a) a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by wnt of certioran where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity 1s specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States STATEMENT OF THE CASE Petitioner Elmo Greer & Sons Construction Company, Inc. (hereinafter Elmo Greer or Petitioner) contracted with the State of Tennessee to build a portion of Highway 111 in Sparta, Tennessee. Respon dents David Goff, his wife Joyce Goff, and his mother Agnes Goff (hereinafter jointly referenced as Goffs or Respondents) own a residence and 400 acres of real property along Highway 111. The lawsuit instituted by Respondents relates to damages claimed to have occurred during the construction of a portion of Highway 111 that ran through their property, close to the residence 5 Respondents’ relationship with Petitioner began when David Sumner, Petitioner’s project manager on this construction project, [T.R. Vol. IV, p. 765] asked to meet with the Respondents about whether they would consider allowing Petitioner to put rock and dirt on the lot across the street from their home. Petitioner was required, under the design received for the road from the Tennessee Department of Transportation (TDOT), to widen the cut in the Goff property area [T.R. Vol. IV, pp. 761-762] and there would be excess rock and dirt that they needed to place somewhere. Petitioner did the grading for a portion of the new highway, while the bridges and paving were subcontracted out to other companies. [T.R. Vol. IV, pp. 760-761] Respondents and Petitioner agreed on using the east side of the property for a staging area and for the waste rock and dirt fill from the project. [T.R. Vol. II, p. 244; T.R. Vol. IV, p. 764] Mr. Lee Anderson, chief engineer for Petitioner [T.R. Vol. II, p. 189], drafted the contract between the parties. He also designed the waste area and: submitted the design together with the parties’ contract [T.R. Vol. II, p. 243], signed January 7, 1994, to the State. [T.R. Vol. IV, pp. 770- 771] The parties’ contract stated that the contractor has the rmght to place dirt, rock and other excess material from job site on which it presently performs a construction contract with TDOT together with right of ingress and egress over and on the Respon- dents’ lot of approximately five to seven acres. [T.R. 6 Vol. II, p. 251] Additionally, the contractor agreed to fill the area and to leave the jot in a neat and graded condition. [T.R. Vol. II, p. 246] This was particularly agreeable to Mr. Goff because he wanted to have the fill area be a level surface so it would be buildable. [T.R. Vol. II, p. 243; p.247] The site was also approved by TDOT as an excess fill, from the road job, site. Highway construction began and the Respon- dents felt the first blast in March 1994. The blasting was close to the Respondents’ residence. Respondents testified that rocks would hit the house, windows, roof, and porch. [T.R. Vol. II, p. 77] The Respondents also believed that Petitioner had buried tires and other construction debris on the property. Respondents filed suit alleging damages from the blasting and from burying waste debris on the prop- erty, including large waste tires, seeking damages in the amount of $1,000,000. The Respondents’ com- plaint alleged a cause of action in nuisance and in violation of the Solid Waste Disposal Act by the creation of an environmental hazard at the site. [T.R. Vol. I, p. 1] Testimony at trial, even from Respondents’ own witness, Douglas Smith, was that the residence had been inspected after road construction was completed and that the damage was purely cosmetic, not structural. [T.R. Vol. III, p. 567] Lee Anderson, Petitioner’s chief engineer, testified that he was present at the Goff property during this road construction project and that the Goff property was used as a waste area for excess, surplus material, including tires. [T.R. Vol. I, p. 195] However, as the tires became flat or unusable, they would stack them up on the waste area and then haul them back to Kentucky because they have value attached to them. [T.R. Vol. II, pp. 195-198; T.R. Vol. IV, pp. 641, 646- 647, 773] Mr. Anderson stated that it is not part of Petitioner’s practice to just dump rock, dirt, and fill on top of refuse tires. [T.R. Vol. IT, p. 197] Mr. Anderson further testified that if he had seen an Elmo Greer employee burying tires on the Goff property, the employee would have been fired on the spot for violating company policy. [T.R. Vol. IV, pp. 774-775] The Respondents suspected that all sorts of materials had been buried on the property; therefore they called David Lloyd Shores of Shores Trucking and Excavating asking that he bring a track hoe to do some digging for them around three years prior to trial. [T.R. Vol. II, pp. 173-174] As a result of digging in the project staging area, Mr. Shores found two tires eight to nine feet down in the earth. One may have come off a rock truck and the other was more like a regular big truck tire. [T.R. Vol. II, p. 176; T.R. Vol. Il], p. 374] Mr. Shores dug on the property at Respondents’ request a second time shortly before trial, and he found four more tires [T.R. Vol. II, p. 180] buried eight to ten feet below the surface. 8 Respondents’ professional geologist expert wit- ness, Ken Johnson, testified as to whether the property was contaminated or hazardous to anyone’s health. He testified that, based on his experience [T.R. Vol. II, p. 383], it would cost a minimum of $318,000 to go through the fill dirt to certify that the property was clean. However, he also specifically tes- tified that tires are non-hazardous waste, that they do not create either an environmental hazard [T-R. Vol. If, p. 405] or a health hazard [T.R. Vol. IU, p. 407], and that finding six tires on a three to five acre parcel of land did not constitute hazardous waste contamination. [T.R. Vol. III, p. 412] Petitioner provided testimony of expert witness Ray Corn who testified regarding whether the prop- erty was hazardous subsequent to the construction project. Mr. Corn did core sampling of the Goff property to determine the existence of contamination or hazardous substances. [T.R. Vol. III, p. 580] Mr. Corn analyzed the samples for hazardous waste constituents and for petroleum products. [T.R. Vol. Ill, pp. 587-590] The analysis confirmed that no contaminants were detected. [T.R. Vol. IIT, pp. 590-591] The site was clean and there was no hazardous material or haz- ardous waste on the site. [T.R. Vol. IV, p. 631] Mr. Corn testified that even though 6 tires and 2 pipes were found on this property, the site would not be considered hazardous or contaminated. [T.R. Vol. III, p. 593; T.R. Vol. IV, p. 650] 9 When asked if the presence of tires on Respon- dents’ property was a violation of the Tennessee Solid Waste Disposal Act, Mr. Corn stated that the Act was not applicable to this property site. [T.R. Vol. III, p. 595] Mr. Corn further testified that the presence of some tires and pieces of pipe on real property is not a violation of the Solid Waste Disposal Act. ['T.R. Vol. IV, p. 629] Tires are not solid waste pollution under Ten- nessee statutes. Six tires, even of large size, would be insufficient for the State of Tennessee to consider the property a waste site subject to regulation. [T.R. Vol. IV, pp. 670-671] Mr. Corn further testified that there was no indication of intentional hiding of the old tires [T.R. Vol. IV, p. 659] and there was no hazardous contamination on the site. [T.R. Vol. IV, p. 650] Ms. Vicky Steed, an environmental engineer with the Tennessee Division of Water Pollution [T.R. Vol. IV, pp. 672-673], testified that she was on site when Mr. Goff was digging the holes looking for tires. [T.R. Vol. IV, pp. 674-675] Although there was a large and small tire discovered [T.R. Vol. IV, p. 677], Ms. Steed stated that she found nothing that was out of the or- dinary upon inspection; she smelled no contaminants and saw nothing that would cause alarm. [T.R. Vol. IV, p. 680] Mr. Christopher Green testified that he is a pro- fessional Hydrogeologist with the State of Tennessee and is also a certified hazardous waste operator. [T.R. Vol. IV, pp. 684-688] He saw two pieces of pipe and four tires on the property two weeks before trial. [T.R. Vol. IV, p. 705] He stated that the laboratory report 10 from those samples found nothing above acceptable standards, even on the test of the seep soil. [T.R. Vol. IV, pp. 701-702}. He also found no evidence of inten- tional burying of tires or other waste materials [T.R. Vol. IV, pp. 738-739], and no reason that the site would not be considered suitable for home or business construction. [T.R. Vol. IV, p. 731] Mr. John Michael Apple, Director of Division of Solid Waste Management for the Tennessee Depart- ment of Environment and Conservation testified that after inspection and after soil sampling of the Goff property, he also did not see anything that was un- usual or that required further investigation. [T.R. Vol. IV, p. 802] Regarding fines, he testified that if the State had found the site to be in violation of any regu- lations, significant fines could be assessed and civil penalties could be incurred up to $5,000 per day. [T.R. Vol. IV, p. 810] However, no fines or penalties were imposed as to the Goff property because nothing was unusual and no further investigation was necessary. [T.R. Vol. IV, p. 803] Based on this testimony, the matter was sub- mitted to the jury and a verdict was returned finding, as relevant to the issue subject of this Petition for Certiorari, as follows: e finding liability on Respondents’ nui- sance claim; * awarding $3,305 in compensatory dam- ages; 11 e finding no liability for any environ- mental hazard; and e finding liability for punitive damages. The second phase of the bifurcated trial then was conducted before the same jury and additional evi- dence was submitted to the jury for purposes of considering the amount of punitive damages, the jury ultimately returning a punitive damage award of $2,000,000. The trial court reviewed the testimony in its role as thirteenth juror and affirmed the compensatory damage award of $3,305. App. 83, 105. Regarding the punitive award, the trial court rendered findings of fact and conclusions of law, affirming the punitive award by exclusively referencing the Solid Waste Dis- posal Act (the environmental hazard claim the jury had rejected). App. 87. The tral court also reduced the punitive award to $1,000,000 because, under Ten- nessee procedure and precedent, Respondents cannot obtain more relief than asked for in the complaint. App. 83, 105. Petitioner appealed the verdict and judgment to the Tennessee Court of Appeals, primarily asking for reversal of the punitive damage award. The Court of Appeals consolidated the issues as follows: 1. Whether the record supports the award of punitive damages. 2. Whether the award of punitive damages is so excessive that it is in violation of 12 Tennessee and federal constitutional due process. 3. Whether the trial court issued an im- proper jury instruction concerning puni- tive damages. 4. Whether the trial court erred by denying Petitioner’s motion for mistrial when the Respondents introduced evidence of in- surance and settlement negotiations. Goff v. Elmo Greer & Sons Construction Co., Inc., 2008 Tenn. App. LEXIS 296, *18-19 (Tenn. Ct. App. May 16, 2008) at App. 69. The Court of Appeals re- versed the award of punitive damages and remanded that issue to the trial court. App. 77-78, 82. Speci- fically, the Court of Appeals held: .... Construction Company argues that the trial court incorrectly relied on the environ- mental tort in approving the jury’s award of punitive damages, because the jury rejected that cause of action and declined to award compensatory damages on that basis. We agree. Ibid. App. 74. The Court of Appeals further wrote: In this case, the only claim upon which punitive damages could be based upon is the nuisance claim, as the jury found Construction Company not liable for the environmental tort. Here, the Goffs focus on the expert testimony that the cost to clean the fill area would be $318,000, and that the award of damages based on the nuisance 13 claim “did not encompass the full harm the Respondents sustained. The harm to the Respondents goes beyond their legally recov- erable damages.” The Goffs sought in their complaint recovery of “the costs and ex- penses of excavating, removing, and disposal of the waste materials buried upon the property.” The jury, however, declined to make such an award. The trial court stated in its findings of fact that “the jury’s com- pensatory damages award was very modest. The evidence would have supported a verdict of over $100,000.” Whatever the jury’s rea- soning for the “modest” award, punitive damages cannot be used to make up for a low compensatory award. The trial court’s findings of fact and con- clusions of law are insufficient in that they rely heavily on the environmental tort claim, a theory which the jury rejected. We there- fore reverse the award of punitive damages and remand the case to the trial court.... Because of our holding, we need not address Construction Company’s constitutional argu- ment regarding the excessiveness of the award. Ibid. App. 76-78. Then the Court of Appeals affirmed the trial court on the remaining issues and remanded the case for consideration of the punitive damages under the nuisance theory. /bid. App. 32. While the Petitioner had argued the unconstitutionality of the jury’s award as a violation of Petitioner’s due process rights, even as reduced by the trial court, the 14 intermediate appellate court did not address that argument before remanding the case back to the trial court. The Tennessee Supreme Court, however, accepted the Respondents’ petition for discretionary appellate review and found that the trial court did not in- appropriately base its decision on the existence of an environmental tort. Rather, the state supreme court held that the same facts that supported Petitioner’s alleged violation of the Solid Waste Disposal Act would also support the existence and liability for a nuisance. App. 21. The Tennessee Supreme Court then considered the issue that was pretermitted by the intermediate appellate court: that is, whether the punitive damage award violated the Fourteenth Amendment due proc- ess rights of the Petitioner because of its excessive- ness. The Tennessee Court expressly noted the deci- sions of this Honorable Court, from 7'XO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993) App. 39-40 and Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991), to BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). App. 29. However, the court did not address subsequent decisions which have continued defining constitutional parameters supporting a single-digit multiplier when considering the punitive to compensatory damage ratio. — ol Indeed, this Court’s decision in Exxon Shipping Company v. Baker, 128 S. Ct. 2605 (2008) was re duced to a mere footnote reference. App. 38.’ The state court then stated that the trial court’s $1,000,000 punitive award was unconstitutionally excessive when compared to the $3,305 compensatory award, it bearing a 302 to 1 ratio. App. 39. Although the court considered the possible civil penalties and fines for the allegedly objectionable behavior of the Petitioner, the third prong of the BMW analysis, the court recognized that Mr. Apple testified that no fines had been, or would be, assessed against the Petitioner based on the property at issue, and no further investigation of the property was necessary. Ultimately, the state court decided to modify the punitive damage award to $500,000, saying that this amount is “more rationally connected” to the non- physical harm that the Respondents suffered.” App. 44. The state supreme court, therefore, completely ignored the fundamental question of whether a triple digit multiplier is constitutionally authorized in the first place, the very issue that was pretermitted and, 1 wre 7 . . . . [The Exxon decision stated that a 1 to 1 ratio was a fair “upper limit” under maritime law for the situation involved in that case. * The state court failed to acknowledge at this point that the jury heard of these “non-physical” harms and returned a compensatory award of only $3,305, clearly electing not to in clude this alleged damage in their award 16 hence, not addressed by the decision of the inter- mediate appellate court. In short, the supreme court failed to explain how this “modified” award is consti- tutionally appropriate given that it bears a punitive to compensatory ratio of 151 to 1. —E = ) ———— REASONS FOR GRANTING THE WRIT THE DECISION OF THE TENNESSEE SUPREME COURT ESTABLISHING THE PUNITIVE DAMAGE AWARD WITH A MULTIPLIER OF 151 TO 11S IN SHARP CONFLICT WITH THE PRECEDENT OF THIS COURT AND FAR EXCEEDS THE CONSTITUTIONAL DUE PROCESS LIM- ITS ON PUNITIVE DAMAGES. Rule 10 of this Court’s Rules identifies the char- acter of reasons that will be considered in a petition for writ of certiorari. At Subpart (c) the Rule states: A state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. (Emphasis added) The case under consideration in this Petition for Certiorari claims a solid position in Rule 10(c). Here, the highest court in the State of Tennessee has de- ( ‘ided that an award of $500,000 punitive damages not constitutionally prohibited as an excessive "7 ‘ fine when based on compensatory damages of $3,305. However, this 151 to 1 ratio is in direct opposition to the decisions of this court since the 1996 decision in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). This court granted certiorari in BMW to “illumi- nate the character of the standard that will identify unconstitutionally excessive awards of punitive dam ages.” 517 U.S. at 568. Since that decision, this Court has considered the due process limitations on puni- tive damages and has failed to authorize triple-digit multipliers as constitutionally acceptable. Rather, the cases have held that a 1 to 1 ratio is always con stitutionally appropriate; a single-digit multiplier of compensatory damages is also constitutionally ap propriate; and a double-digit multiplier may be constitutionally appropriate if there are especially egregious circumstances. Since BMW, no case has found a triple-digit multiplier to be constitutionally acceptable Rule 10(c) mandates that this case be accepted for certiorari review 18 A. FOR MORE THAN A DECADE, THE UNITED STATES SUPREME COURT HAS HELD THAT, AT MOST, A MODEST DOUBLE-DIGIT MULTIPLIER WOULD PASS CONSTITUTIONAL MUSTER WHEN APPLIED TO THE RELATION- SHIP BETWEEN PUNITIVE AND COM- PENSATORY DAMAGES AWARDED BY A JURY UNDER ESPECIALLY EGRE- GIOUS CIRCUMSTANCES. A review of the decisions rendered by this Court in the past decade reveals that the Court has never approved, as consistent with due process considerations or as constitutionally valid, a triple- digit multiplier for the outer range of exemplary damages. Rather, the Court has stated that even modest double-digit multipliers may push the con- stitutional bounds beyond legitimate due process constraints. The reasonableness of a punitive award is tested by its relationship to the harm suffered by the plain- tiff. See BMW of North America, Inc. v. Gore, supra; Pacific Mutual Life Insurance Co. v. Haslip, supra. In this Petition for a Writ of Certiorari, the compen- satory damages assessed by the jury on the Re- spondents’ nuisance claim were $3,305. Clearly, the verdict’s punitive award of $2,000,000 reflects a puni- tive to compensatory ratio of 604 to 1; the award reduced to $1,000,000, the amount sued for, reflects a ratio of 302 to 1; and the award as “modified” by the Tennessee Supreme Court to $500,000 reflects a ratio 19 of 151 to 1. None of these awards have any relation- ship to the compensatory damages the jury awarded, and all are arbitrary and unconstitutionally excessive under the Fourteenth Amendment to the Federal Constitution. This Honorable Court stated in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003): While states possess discretion over the imposition of punitive damages, it is well established that there are procedural and substantive constitutional limitations on these awards. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. Id. at 416 (Emphasis added) In Philip Morris USA v. Williams, 549 U.S. 346 (2007), this Court again reviewed the procedural limitations on punitive damage awards. The Philip Morris jury returned a verdict of $79,500,000 in puni- tive damages after awarding $821,000 in compensa- tory damages. Thus the ratio was almost 100 to 1. Although the viability of a 100 to 1 punitive award was pretermitted due to the Court’s remand on other issues, the Court reaffirmed its previous decisions as to the purposes and limits of punitive damage awards, clearly again establishing BMW and State Farm as the guides for validity under the U.S. Constitution. 20 For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive”. See Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994) (requiring judicial review of the size of puni- tive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443 (2001) (review must be de novo); BMW, supra at 574-585 (excessiveness decision de- pends upon the reprehensibility of the Peti- tioner’s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the Petitioner to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases”); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single-digits). 549 U.S. at 352-353. Respondents and the state supreme court rely on the 1993 decision in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), where the TXO Court was faced with a judgment against the Petitioner for $10,000,000 in punitive damages and $19,000 in compensatory damages, reflecting a ratio of 526 to 1. Petitioner submits the TXO decision is no longer the decisive statement from this Court as to the relationship between punitive and compensatory damages. The TXO decision was rendered well prior to the BMW decision (1996), the Campbell decision (2003), the Philip Morris USA decision (2007) or 21 the Exxon Shipping Company decision (2008). Each of these decisions have stressed the importance of the 1 to 1 or single-digit ratio, while also noting that, in truly egregious circumstances, a modest double-digit multiplier might pass constitutional scrutiny. No- where, since the 1993 7’'XO decision, has this Court authorized a triple-digit multiplier as constitutionally permissible under the Fourteenth Amendment. The 151 to 1 ratio applied by the state Court in this case is an unconstitutional violation of the Peti- tioner’s due process rights to be free from excessive fines and penalties. This is particularly true where the testimony of several witnesses, including the director of the state regulatory agency, was clear and uncontradicted: ¢ no fines or penalties were appropriate for the property in question; e no fines or penalties had been imposed; ¢ no fines or penalties would be imposed in the future; ¢ the Solid Waste Disposal Act was not applicable to the property site; and, the Petitioner did not violate said Act. [T.R. Vol. II, p. 595; IV, pp. 629, 670-671, 799 and 802] Petitioner requests that this Court accept this Petition for Writ of Certiorari so as to declare that a triple-digit multiplier is an unconstitutional violation 22 of a party’s due process rights where there has been no fine or penalty imposed on the Petitioner’s actions at this site by any state or regulatory agency. B. THE STATE SUPREME COURT CAN- NOT IGNORE CONSTITUTIONAL LIMI- TATIONS ON DAMAGES IMPOSED BY THE UNITED STATES SUPREME COURT. This Court has held that it has no supervisory jurisdiction over state courts other than to evaluate the judgment in relation to the Federal Constitution. See Chandler v. Florida, 449 U.S. 560, 570 (1981). The words “other than” are crucial: this Court must evaluate the Tennessee Supreme Court’s judgment modifying the punitive damage award to an amount bearing a ratio of 151 to 1 in light of the U.S. Con- stitution and the Fourteenth Amendment’s due proc- ess protection. Petitioner suggests that this ts the very foundation of this Petition for Writ of Certiorari. Indeed, the Fourteenth Amendment’s Due Process Clause states: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This clause of the Fourteenth Amendment to the U.S. Constitution has been construed sv as to impose substantive limits on punitive damage awards. This Court has stated that due process precludes the imposition of punishment whenever the defendant 23 reasonably could have concluded that its conduct was lawful. See generally Colautti v. Franklin, 439 U.S. 379 (1979) (statute that predicated criminal responsi- bility on a “complex medical judgment about which experts can — and do — disagree” was unconstitu- tionally vague); Connally v. General Constr. Co., 269 U.S. 385, 392 (1926) (law imposing criminal penalties “should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another”). Further, these same principles apply to punish- ment meted out in a civil proceeding, especially as it relates to punitive damages, as recognized by this Court when characterizing punitive damages as “quasi-criminal.” Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). This underscores the need for due process protection against their arbitrary and standardless imposition. Id. at 433. This Court has long made clear that “[p]uni- tive damages may properly be imposed to further a State’s legitimate interests in pun- ishing unlawful conduct and deterring its repetition.” (internal citations omitted) At the same time, we have emphasized the need to avoid an arbitrary determination of an award’s amount. Philip Morris USA v. Williams, 549 U.S. at 352. In the case subject of this Petition, the Tennessee Supreme Court made an arbitrary determination of 24 the amount of punitive damages to be awarded. Indeed, the evidence was uncontradicted that the Petitioner did not violate any regulation or statute and that none of its actions were illegal or subject to fine or penalty. Clearly, if due process precludes im- position of punishment when the defendant reasona- bly could have concluded that its conduct was lawful, the imposition of a punitive damage award when the actions of the Petitioner were, in fact, lawful is a violation of the Petitioner’s due process rights and begs for this Court’s scrutiny. After considering the BMW _ guideposts for evaluation of punitive damages, the state court stated: In this case, the ratio of $1 million punitive damages to compensatory damages as ap- proved by the trial judge is over 302 to 1. This ratio is excessive in light of the circumstances presented. As set forth above, Elmo Greer buried tires which, while constituting a nuisance, do not constitute an environmental hazard or threaten the health or safety of any individual. (Emphasis added) App. 41-42. This Honorable Supreme Court has instructed state and federal courts that in determining whether the award is excessive, courts should give “substan- tial deference” to legislative judgments concerning appropriate sanctions for the conduct at issue. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989) (O'Connor, J., 29 concurring in part and dissenting in part) In the case at bar, the state Court noted, but failed to give any merit to, the testimony of the Director of the enforce- ment agency that fines were not and would not be imposed by the State of Tennessee on the Petitioner in this case because, as noted previously, the Act does not apply to this site. Rather, the state court’s deci- sion describes the high statutory penalties of the Solid Waste Disposal Act of Tennessee, acknowledges that the “statutory” guidepost neither supports nor undermines the punitive damage award, but then doubles back to imply that the statutory penalties support the high punitive award rendered by the jury and approved by the trial court. Thus, the $1 million punitive award imposed upon Elmo Greer is within the civil fine range authorized by the legislature. How- ever, Johnny Michael Apple, Director of Solid Waste Management for the Tennessee De- partment of Environment and Conservation. testified that no fines had been or would be imposed on Elmo Greer for this violation and that no further investigation of this property was needed. Given the apparent disparity between the sanctions authorized by the legislature and the sanctions that would, in practice, be imposed, we cannot conclude that this guidepost either supports or under- mines the punitive damages awarded. In short, we have carefully considered the application of the three guideposts to the punitive damages awarded in this case. After 26 doing so we are constrained to acknowledge that the punitive award approved by the trial court is too large given the circum- stances and does violate Elmo Greer’s due process rights. We conclude that the award must be modified to $500,000. This award sends a strong message about the serious nature of Elmo Greer’s miscon- duct. At the same time, however, it is more rationally related to the non-physical harm suffered in this case. App. 43-44. Notwithstanding the language used by the state court, Petitioner submits that this decision is an arbitrary award unsupported by the evidence, is grossly excessive, and is in violation of the due proc- ess rights of the Petitioner. The state supreme court noted the “disparity between the sanctions authorized by the legislature and the sanctions that would, in practice, be imposed”, however the court failed to account for the fact that, as distinguished from “in practice”, the reality in this case was that no sanc- tions were authorized or levied against the Petitioner. In short, this state court decision reflects an excessive fine levied by a court against a company 1) that was not guilty of any violation of the law, as evidenced by the uncontradicted testimony of numerous witnesses including the very state agency charged to enforce the law, 2) where the jury had rejected the environmental claim, and 3) where minimal compensatory damages awarded on the nuisance claim only. 27 In the course of this Court’s analysis in Exxon, the Court stated: The Court’s response to outlier punitive damages awards has thus far been confined by claims at the constitutional level, and our cases have announced due process standards that every award must pass. See, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L. Ed. 2d 585 (2003); Gore, 517 U.S., at 574- 575, 116 S.Ct. 1589, 134 L. Ed. 2d 809. Although “we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula,” id., at 582, 116 S. Ct. 1589, 134 L. Ed. 2d 809, we have determined that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant de- gree, will satisfy due process,” State Farm, 538 U.S., at 425, 123 S.Ct. 1513, 155 L. Ed. 2d 585; “[wlhen compensatory dam- ages are substantial, then a lesser ratio, perhaps only equal to compensatory dam- ages, can reach the outermost limit of the due process guarantee,” 1bid. Exxon, 128 S. Ct. at 2626. The punitive damage award will not likely pass constitutional scrutiny if there is more than a single- digit ratio between the punitive and compensatory damage award, certainly not a ratio of 604 or 302 or even 151 to 1 as imposed in this case. 28 Clearly, the state supreme court decision flies in the face of the punitive damage jurisprudence from this Honorable Court. This Court has stated the due process standards that every punitive damage award must meet, and it is clear that in the instant case, this standard simply is not met. This Honorable Court is authorized, and indeed is compelled, to apply the protections guaranteed by the Constitution to cases where lower courts have misapplied and abused the due process rights of the Petitioner. In this case, the punitive damage award of $500,000 based on a compensatory award of $3,305 (a ratio of 151 to 1) presents an opportunity to address the constitutional limitation on triple-digit multipliers applied to puni- tive damage awards. ll. THE TENNESSEE SUPREME COURT HAS SEIZED AUTHORITY FOR ITSELF THAT IS SPECIFICALLY RESERVED FOR THIS COURT. As previously noted, Petitioner submits that this Petition for Writ of Certiorari is appropriate under Supreme Court Rule 10(c) where the state supreme court has decided an important federal question in a way that conflicts with relevant decisions of this Court. Here, the “important federal question” is whether constitutional due process rights have been violated by the imposition of an excessive punitive damage award that is in direct conflict with the numerous decisions of this Court. 29 A. THE STATE CANNOT CONCLUDE THAT WHAT IS DECLARED UNCONSTITU- TIONAL BY THE UNITED STATES SUPREME COURT IS, NONETHELESS, ALLOWABLE UNDER THE STATE CON- STITUTION, AS ANY STATE ANALYSIS OF A CONSTITUTIONAL ISSUE IS SUB- SERVIENT TO THE UNITED STATES CONSTITUTION AND ITS INTERPRE- TATION BY THIS COURT. In the 2003 decision in State Farm, supra, this Court pointed to traditional remedies of “double, treble, or quadruple damages” and stated that “they demonstrate what should be obvious: [slingle- digit multipliers are more likely to comport with due process, while still achieving the State’s goals of de- terrence and retribution, than awards with ratios in range of 500 to 1 or, in this case, of 145 to 1.” 538 U.S. at 425. In the case at bar, the Tennessee Supreme Court “modified” the trial court’s award of punitive damages from $1,000,000 based on the $3,305 compensatory damage award, a 302 to 1 ratio, to $500,000, bearing a 151 to 1 ratio. In short, the unanimous Tennessee Supreme Court shunned the guidance from this Court, took matters in its own hands and unilaterally determined that a ratio of 151 to 1 was appropriate under the U.S. Constitution, in clear contradiction to this Court’s declaration in State Farm that a ratio such 30 as “145 to 1” did not comport with due process constraints. The Due Process Clause “prohibits the imposition of grossly excessive or arbitrary punishments.” State Farm, supra, 538 U.S. at 416. Further, this Court has found that the U.S. Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, supra. Clearly, state courts cannot ignore what this Court holds as the parameters for a constitutionally acceptable limit on punitive damages. Where the state supreme court has imposed a punitive damage award in derogation of this Court’s pronouncements, the refusal to follow this Court’s guidance can result in nothing other than a “grossly excessive |and| arbitrary punishment” that is in violation of the Peti- tioner’s due process rights. B. THE UNILATERAL DETERMINATION THAT, IN TENNESSEE, PUNITIVE DAMAGES CAN BE AWARDED IN AN AMOUNT THAT IS IN EXCESS OF 150 TIMES THE COMPENSATORY DAM- AGE AWARD RESULTS IN THE STATE SUPREME COURT USURPING THIS COURT’S PREROGATIVE TO INTER- PRET AND ESTABLISH CONSTITU- TIONAL DUE PROCESS GUIDELINES. This Court granted certiorari in BMW to “illuminate the character of the standard that will 3] identify unconstitutionally excessive awards of puni- tive damages.” 517 U.S. at 568. The identification of constitutionally excessive awards of punitive damages is an issue that is squarely within the scope of the Supreme Court’s jurisdiction. [It is the federal courts that are the final arbiters of federal constitutional rights, not the state courts. See, e.g., Bennett v. Mueller, 322 F.3d 573, 582 (9th Cir. 2003) (“[S]tate courts will not be the final arbiters of impor- tant issues under the federal constitution.” (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L. Ed. 920 (1940))). Hopkins v. Bonvicino, 2009 U.S. App. LEXIS 15689 (9th Cir. Cal. 2009). This was illustrated so clearly when this Su- preme Court accepted the BMW case for review and decision. The BMW decision provided lower courts three “guidelines” that were to be used in evaluating whether a punitive damage award was unconstitu- tionally excessive and in violation of due process rights of the defendant. Specifically, the Court stated in BMW, supra, 517 U.S. at 574-585 that the ex- cessiveness of the award depends upon 1) the repre- hensibility of the defendant’s conduct, 2) whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and 3) the difference between the award and sanctions authorized or imposed in comparable cases. 32 In the case at bar, the Tennessee Supreme Court quoted these guideposts and appeared to apply them to the evidence, but then the court ignored the clear result of that analysis and arbitrarily decided the punitive damage amount in disregard of this Court’s directives. Regarding the first guidepost, reprehensi bility of the Petitioner’s conduct, the state court held that burying tires on the Respondents’ property was reprehensible conduct.’ But, the court then also recognized that the jury found no “environmental hazard” was created by the Petitioner and also that the state found no violation of any statute or regu- lation. The state court then held: Thus, although Elmo Greer’s conduct was sufficiently reprehensible for this guidepost to point toward a substantial punitive dam- ages award, it did not rise to the highest level of reprehensibility. App. 37. Regarding the second guidepost, whether the award bears a reasonable relationship to the actual and potential harm caused by the Petitioner to the Respondents, the state court noted that there was no hazard or threat by stating: As set forth above, Elmo Greer buried tires which, while constituting a nuisance, do not constitute an environmental hazard or * While the Petitioner disagrees with the award of punitive damages in any amount, for purpose of this Petition, Petitioner acknowledges but does not concede this finding of the lower courts 33 threaten the health or safety of any individual. App. 42. Regarding the third guidepost, the difference be- tween the award and sanctions authorized or imposed in comparable cases, the state court detailed the various penalties and fines that were possible under the relevant statutes and regulations. However, as referenced hereinabove, the court then noted that representatives from the State of Tennessee testified that no penalties or fines were appropriate and none had been, or would be, issued against the Petitioner. Surely, the potentiality of fines and penalties cannot satisfy this guidepost if there is affirmative testimony that the site has been inspected and that no fines would be imposed under the relevant circumstances. As to this guidepost, the state supreme court stated: Given the apparent disparity between the sanctions authorized by the legislature and the sanctions that would, in practice, be imposed, we cannot conclude that this guidepost either supports or undermines the punitive damages awarded. App. 44. Notwithstanding the clear fact that none of the three guideposts pointed to a significant punitive damage award, the state court then continued to state: In short, we have carefully considered the application of the three guideposts to the punitive damages awarded in this case. After doing so we are constrained to acknowlec ge that the punitive award approved by the 34 trial court is too large given the circum- stances and does violate Elmo Greer’s due process rights. We conclude that the award must be modified to $500,000. This award sends a strong message about the serious nature of Elmo Greer’s misconduct. At the same time, however, it is more rationally related to the non-physical harm suffered in this case. App. 44. Petitioner submits that the three BMW guide- posts do not support a finding of extreme, repre- hensible conduct sufficient to take this case out of the single-digit multiplier category of cases. This is evidenced by the supreme court’s statement that the Petitioner’s actions were not the “highest level of reprehensibility,” App. 37, that Petitioner’s actions “do not constitute an environmental hazard or threaten the health or safety of any individual,” App. 41-42, and that the third guidepost neither “supports [nlor undermines the punitive damages awarded.” App 44. After making these statements, irrespective of the state court’s conclusion as to each of the separate BMW guideposts, the state court arbitrarily decided to award $500,000 punitive damages on a $3,305 com- pensatory award, a mathematical ratio of 151 to 1. The Supreme Court of the United States has appellate jurisdiction over federal questions arising either in state or federal proceedings, and by reason of the supremacy clause the decisions of that court on national law have binding effect on all lower courts whether state or federal. 35 United States ex rel. Lawrence v. Woods, 1970 U.S. App. LEXIS 6870, 8-9 (7th Cir. Il. 1970). Petitioner submits that this Court has jurisdic- tion to consider whether triple-digit multipliers are constitutionally appropriate in the first instance, and, if appropriate, whether such ratio is applicable where the evidence does not find reprehensibility in the extreme. Petitioner asserts that these questions have been answered by this Court’s decisions since the BMW decision established the guideposts. Specifi- cally, as stated in State Farm, supra, rare is the case where the one to one ratio is insufficient for a puni- tive damage award, and, in that exceptional case, the U.S. Constitution may allow a minimal double-digit multiplier. The Tennessee Supreme Court erred when it authorized a punitive damage award bearing a 151 to 1 ratio to the compensatory damage jury award. This error has constitutional ramifications as it renders the decision an unconstitutional violation of the Petitioner’s due process rights. Il. THE ISSUE IS IMPORTANT AND HAS NATIONWIDE IMPACT. At the outset, it could appear that this is one renegade decision from the Tennessee Supreme Court and that it affects only this Petitioner and none else. The reality is, however, that this unanimous decision is from the highest court in Tennessee and its deci- sions are binding on all courts in the State of Tennes- see. Furthermore, there is no guidance to Tennessee 36 trial or appellate courts expressing why the 301 to 1 ratio is unconstitutional while the 151 to 1 ratio is not. This decision is in blatant disagreement. with other precedents of this Court and it is for this reason that this Court’s Rule 10(c) authorizes appellate review in this situation. Tennessee trial and appellate courts are bound by the pronouncement of the Tennessee Supreme Court and, if this decision is left as published, will be guided by an unconstitutional standard for future case applications. The citizens of Tennessee should not be subject to arbitrary awards which are unpre- dictable, which are unsupported by prououncement of this Court, and which are unconstitutional. Moreover, the effect of this decision is to place Tennessee federal district courts, applying Tennessee law in diversity situations, in the untenable position of having a state supreme court decision *hat con- flicts with decision of the United States Supreme Court, the Court under whose control the federal district and circuit courts abide. Where the state has a standard different than the federal court for ac- ceptable constitutional punitive damage awards, forum shopping will be rampant. Further, although somewhat speculative, it is entirely likely that the eight (8) states surrounding Tennessee will be urged to adopt the same punitive standards that are available to litigants in their neighbor state, whether or not that standard complies with this Court’s pronouncement on the issue. 37 Petitioner recognizes that, generally, the United States Supreme Court has no supervisory jurisdiction over state courts; but, this Court does have juris- diction over state court actions with respect to deci- sions regarding the U.S. Constitution. This Court has the ability, the obligation and the power to evaluate the state court judgment in relation to the precepts found in the U.S. Constitution. See Chandler v. Florida, 449 U.S. at 570. The issue brought to this Court in this Petition for Writ of Certiorari is im- portant, although narrow. The Tennessee Supreme Court and ail the trial and appellate courts beneath its jurisdiction are now in a position where the rela- tionship of punitive to compensatory damages is un- settled, to be sure. What is the reasonable ratio, and how much can the punitive damage be before it becomes an excessive, arbitrary and unconstitutional award? Absent guidance from this Court, the citizens of Tennessee are subject to unconstitutional, over- reaching, arbitrary punitive damage awards, to the detriment of this Petitioner and others similarly situated. CONCLUSION The case at issue in this Petition for Writ of Certiorari presents a compelling need for this Court to address the constitutionality of triple-digit multi- pliers when applied to the punitive damages awarded in civil litigation. Petitioner urges this Court to accept this Petition for Writ of Certiorari so as to 38 direct the Tennessee Supreme Court to apply this Court’s analysis to the case at bar and to reduce the punitive damage award so that it is subject to a single-digit multiplier or, alternatively, to remand the case for determination of a constitutionally appro- priate punitive damage award. For the reasons stated, this Petition for Writ of Certiorari should be granted. Respectfully submitted, LINDA J. HAMILTON MOWLES, Esq. Tennessee BPR No. 010464 LEwis, KING, KRIEG & WALDROP, P.C. 620 Market Street, Fifth Floor P. O. Box 2425 Knoxville, Tennessee 37901 (865) 546-4646 Attorneys for Petitioner App. 1 IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE June 2, 2009 Session DAVID GOFF et al. v. ELMO GREER & SONS CONSTRUCTION CO., INC. Appeal by permission from the Court of Appeals, Middle Section Circuit Court for White County No. CCC-320 John A. Turnbull, Judge No. M2006-02660-SC-R11-CV — Filed November 3, 2009 The owners of real property filed suit against a construction company hired by the State of Tennessee to widen a highway adjacent to their property. The property owners had a contract with the construction company that allowed it to place equipment and construction materials on their land in exchange for compensation. Following the completion of the road project, the property owners filed suit claiming that the construction company failed to pay the amount due under the contract and caused blasting damage to their house and vehicles. They also claimed that the construction company illegally buried debris on their property. At trial, the parties stipulated that the construction company was liable for breach of con- tract in the amount of $5,355.50. A jury then deter- mined that the construction company was strictly App. 2 liable for harm caused by its blasting activities in the amount of $9,510, and that burying debris on the plaintiffs’ property constituted a nuisance for which the company was liable for $3,305. The jury also returned an award of $2 million in punitive damages which the trial court modified to $1 million to conform to the amount requested in the pleadings. The Court of Appeals affirmed the trial court’s judgment as to liability, but reversed the award of punitive damages based on a finding that the trial court improperly considered Tennessee’s environ- mental laws in approving the award. After careful review, we conclude that the evidence supports the jury’s award of punitive damages and that the trial court properly considered Tennessee’s environmental statutes in approving that award. We further conclude that the amount of the punitive damages award does violate the construction company’s due process rights and must be modified to $500,000. Finally, we find no error in the trial court’s in- structions to the jury regarding punitive damages or its denial of a motion for mistrial based on a mention of insurance during the trial. Accordingly, the decision of the Court of Appeals is reversed and the judgment of the trial court is reinstated as modified. App. 3 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Trial Court Reinstated as Modified CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., and Gary R. WADE, WILLIAM C. Kocu, JR., and SHARON G. LEE, JJ., joined. John C. Knowles, Sparta, Tennessee, Jon E. Jones, Cookeville, Tennessee, and John P. Pryor, Smithville, Tennessee, for the appellants, David Goff, Joyce Goff, and Agnes Goff. Linda J. Hamilton Mowles, Knoxville, Tennessee, for appellee, Elmo Greer & Sons Construction Co., Inc. OPINION Factual & Procedural History David Goff and his mother, Agnes Goff, own 400 acres of pasture and timber land adjacent to Highway 111 in Sparta, Tennessee. Mr. Goff and his wife, Joyce Goff, reside in a house they built on the property in 1978. As a result of highway development projects, including the project at issue in this case, the Goffs’ home is encircled by four lanes of Highway 111 to the front of their house and four lanes to the rear of their house. In 1993, the State of Tennessee contracted with Elmo Greer & Sons Construction Company, Inc. (“Elmo Greer”) to widen from two to four lanes the App. 4 portion of Highway 111 adjacent to the Goffs’ property. Realizing that extensive blasting would be required and that the project would produce excess dirt and rock, Elmo Greer, on January 7, 1994, contracted with the Goffs to place the excess material on a portion of their land consisting of five to seven acres (“fill area”). Elmo Greer agreed to pay the Goffs ten cents per cubic yard of fill material placed on their property. Elmo Greer further agreed that the fill area would be left in a “neat and graded condition,” a point of particular concern to the Goffs because they hoped to have a suitable building site when con- struction on the highway was completed. Construction on Highway 111 lasted approxi- mately three years. Starting in 1994, Elmo Greer blasted extensively the area around Highway 111, sometimes within 150 feet of the Goffs’ home, and placed excess dirt and rock on their property. Rock from the blasting damaged the Goffs’ vehicles and the roof of their house and nearly hit one of their children. During the construction process, Mr. Goff periodically visited the fill area of his property and became concerned with Elmo Greer’s business practices. Mr. Goff noticed large motor oil deposits in Elmo Greer, which is based in Kentucky, is described in the record as a “heavy highway construction company” that builds highways, dams, and bridges. At the time ef trial, Elmo Greer had at least twenty major projects going on in ten dif- ferent states, including projects in Tennessee. The State of Tennessee paid the company approximately $13 million for its work on Highway 111. App. 5 the area where Elmo Greer staged its equipment. He described “large areas” of the ground that were “black” with oil and grease where Elmo Greer re- paired and changed the oil on its equipment and vehicles. He also noticed that the fill area was being used to store tires, batteries, other vehicle parts, fifty- five gallon oil drums, and other items. When Mr. Goff questioned Elmo Greer’s onsite personnel about the condition of the fill area he was repeatedly told “not to worry about it” and “we'll clean it up.” Unsatisfied with these reassurances, Mr. Goff began taking pictures of the fill area, focusing on several large tires buried beneath large rocks. According to Mr. Goff, there were four or five “huge” tires that had “big rocks” on them. He testified that “in seeing that, you know, you wouldn't think they’d dump [big rocks] on [the tires] and then take [the big rocks] off and haul the tires off. So, I — I got my camera and I made pictures.” Mr. Goff also focused his attention on boxes, pipes, oily rags, oil drums piled in the fill area, and other discarded waste. Upon completing the construction project in 1997, Elmo Greer removed its equipment from the Goffs’ property and compacted, graded, and seeded the fill area. Elmo Greer did not, however, compen- sate the Goffs for the fill material placed on their land as provided for in their agreement, prompting the Goffs to file suit for breach of contract. The Goffs also claimed in their suit that Elmo Greer was strictly liable for blasting damage to their house and App. 6 vehicles, and further that Elmo Greer had unlawfully buried discarded waste on their property. Convinced that Elmo Greer had buried tires and other materials on his land, Mr. Goff paid Lloyd Shores Trucking and Excavating (“Lloyd Shores”) $3,305 to twice dig up a small portion of the fill area. During the first dig, Lloyd Shores unearthed one large tire, eight feet tall and weighing at least one ton, and a smaller tire described as a regular truck tire. These tires were buried eight to nine feet deep under a layer of compacted rocks, some of which were the size of a pick-up truck. During the second dig, Lloyd Shores unearthed some steel pipes and four more tires of various sizes. It is undisputed that these items were in the fill area of the Goffs’ property. After discovering buried solid waste on their land, the Goffs amended their complaint by alleging that Elmo Greer did willfully, unlawfully, intentionally, and fraudulently deposit, bury, hide and conceal upon [the Goffs’] real property ... waste materials, used oil, petroleum, truck tires, huge earth-moving tires and other waste materials that are prohibited to be disposed of in such manner by the laws of the State of Tennessee ... all without proper and lawful permitting and all without the consent or approval of the [Goffs]. The amended complaint sought $250,000 in compen- satory damages and $1 miliion in punitive damages. The Goffs subsequently amended their complaint a App. 7 second time, adding a nuisance cause of action claim- ing that Elmo Greer commit|ted] acts of nuisance ... by spilling upon the property oil and _ petroleum products and by burying and concealing trash, garbage, waste products, rubber tires, oil filters, used and discarded machinery parts, all without permission or authoriza- tion of the [Goffs] and did thereby create an unauthorized, unlicensed, and _ prohibited landfill. This second amended complaint sought $500,000 in compensatory damages and $1 million in punitive damages. The Goffs’ discovery of buried solid waste in the fill area of their land prompted Elmo Greer to conduct its own investigation by hiring AquAeTer, Inc. to conduct an environmental site assessment. AquAeTer, Inc. took soil samples from the fill area and analyzed the samples “for hazardous materials, hazardous constituents, [and] any chemicals that may have been involved with any operations that were held on the site.” The test results revealed “no hazardous ma- terials or hazardous waste” in the fill area. A three-day jury trial commenced on June 28, 2006. Mr. Goff testified about the pictures he had taken of the fill area and the debris unearthed from his land. He testified about seeing the oil spills, batteries, vehicle parts, fifty-five gallon oil drums, and other items stored on his property. He also App. 8 related how he had repeatedly questioned Elmo Greer about the condition of the fill area and how he sought assurances that nothing but rock and dirt would be buried on his land. He specifically told Elmo Greer not to bury the “huge tires” he had seen. Elmo Greer’s personnel repeatedly told him “not to worry about it” and “we'll clean it up.” Mr. Goff nonetheless remained concerned that the waste materials he had seen would be buried. Ken Johnson, a geologist, testified that the only way to certify that the fill area was free of solid or hazardous waste would be to excavate the entire 53,555 cubic yards of fill area at an estimated cost of $318,000. Mr. Johnson testified that because six tires were unearthed in the fill area, he would only certify the property as clean after the entire area was ex- cavated. With regard to hazardous waste, Mr. John- son stated that excavation would not be necessary for him to certify the property because the soil samples taken from the fill area did not reveal the presence of any such waste. Mr. Johnson also testified that, given their size, the buried tires could not have been accidentally covered up, noting that it had to be a conscious and intentional act to bury them. He did not recommend excavating the property to remove the tires because tires do not cause a health concern and do not deteriorate to the point of contaminating the soil. Mr. Johnson testified that while tires are not considered a hazardous waste, tires do cause an en- vironmental concern, noting that “there are guide- lines against improperly dumping [tires].” App. 9 William Parrish, a real estate appraiser, testified that the fill area was worth $10,000 an acre assuming it was free from any buried solid waste. If the property did have solid waste on it, Mr. Parrish testified that it would be worth zero because latent defects, such as buried solid waste, would have to be disclosed to a potential buyer. Based on the size of the fill area and the cost per cubic yard to excavate, Mr. Parrish testified that it would cost approximately $375,000 to “cure” the fill area of any latent defects. Michael Corn, an environmental engineer with AquAeTer, Inc., testified that there were “no hazardous materials or hazardous waste” in the fill area. He stated that “tires are not hazardous waste or hazardous materials.” Mr. Corn also testified that with soil sampling, solid waste — such as a tire — would only be discovered if the probe inserted into the ground happened to make direct contact with the solid waste. He noted that the soil assessment conducted on the Goffs’ property was only “looking for hazardous waste and hazardous materials.” Based on the results of that assessment, Mr. Corn believed that it was umnecessary to excavate the fill area or conduct more testing. He also stated his view that a few tires and pipes buried on private property would not create a “problem with the Solid Waste Disposal Act.” Mr. Corn agreed, however, that pursuant to the Solid Waste Disposal Act, waste tires should not be buried in landfills but, instead, should be stored until they can be “transported to an appropriate facility to be used for an improved beneficial end use.” He also App. 10 agreed that the Goffs’ property was not a designated landfill which could store tires. Terry Evans, a real estate appraiser hired by Elmo Greer, testified about the value of the Goffs’ property at the time of trial. Mr. Evans explained that, after reviewing the soil assessment report, the photos of the fill area, and the unearthed tires and pipes, he saw nothing to indicate that the fill area was contaminated. He stated, however, that a potential buyer “might use this information to leverage a little better deal and might ask that the sale price be lower maybe 3, 5 percent, maybe a little bit lower.” Lee Anderson, Elmo Greer’s chief engineer and project manager, testified that he visited the con- struction site once or twice a month. When asked about the use of the fill area during the construction process, Mr. Anderson testified that the area was used to change the oil on Elmo Greer’s equipment. According to Mr. Anderson, company policy required that used oil be placed in fifty-five gallon drums and sent to Elmo Greer’s headquarters in Kentucky where it is recycled and used to heat their offices. As to tires, Mr. Anderson conceded that tires were stacked in the fill area during construction, but ex- plained that once enough tires were stacked they were taken to Elmo Greer’s headquarters to deter- mine whether they could be retreaded. If not, the tires were shredded and sent to a landfill. Mr. Anderson testified that there is a financial cost asso- ciated with disposing of tires in a landfill. App. 11 After Elmo Greer- completed its work, Mr. Anderson inspected the Goffs’ property and observed tires lying on the fill area. He “called the shop and told them to come pick up the equipment, tires, and other surplus equipment.” When asked about the six tires found buried in the fill area, Mr. Anderson testified, “I have no idea. .. . It makes sense that [the tires found] were ours but I don’t know that. They could be [Mr. Goff’s tires].” He did admit, however, that Elmo Greer used tires like those unearthed from the fill area. He also testified that the company went through “hundreds” of tires over the course of the project because “limestone rock punches holes in them and wears them out.” When asked why Elmo Greer had policies regarding what to do with used oil and tires, Mr. Anderson responded that it was “good business to meet the regulations and requirements. There’s no question as to what we’re supposed to do and how we're supposed to do it.” He acknowledged that Elmo Greer is obligated to follow “state and federal regulations.” Johnny Michael Apple, Director of the Division of Solid Waste Management for the Tennessee Depart- ment of Environment and Conservation, testified that, other than some tires needing “to be properly disposed of,” there was nothing unusual “that would indicate [the need for] further investigation.” He agreed, however, that discarded whole tires are solid waste and that solid waste is not permitted to be buried outside of an approved landfill and that doing so violates state law. Mr. Apple explained that App. 12 lawfully disposing of a tire requires shredding it. He also acknowledged that one who improperly disposes of solid waste is subject to a civil penalty of up to $5,000 per day for each violation. See Tenn. Code Ann. § 68-211-117(aX1) (2006). Finally, when pre- sented with a hypothetical scenario that tires were discovered eight to ten feet below ground buried underneath heavy limestone rock and asked whether these facts demonstrated an intent to bury tires, Mr. Johnson agreed that those facts “would show that someone was trying to hide those [tires].” Following the close of the proof, the trial court instructed the jury on the claims of “environmental tort,” nuisance, and strict lia_ility for blasting. On a special verdict form, however, the jury was asked to determine whether Elmo Greer had caused an “environmental hazard” to the Goffs’ property. The phrase “environmental hazard” was not defined in the charge. Elmo Greer stipulated that it was liable for breach of contract in the amount of $5,355.50, thus resolving the Goffs’ contract claim.” Regarding the Goffs’ strict liability claim, the jury found that Elmo Greer was strictly lable for the blasting damage to their residence and vehicles and awarded $9,510 in damages.* The jury also found that while Elmo Greer had not caused an “environmental haz- ard” on the Goffs’ land, it determined that Elmo * This portion of the judgment is not at issue on appeal. 3 No issue has been raised on appeal regarding this award. App. 13 Greer had created a nuisance and awarded $3,305 in compensatory damages. The jury also determined that the Goffs were entitled to punitive damages. During the second phase of the trial to consider the amount of punitive damages, Mr. Anderson, Elmo Greer’s chief engineer and manager of the Highway 111 project, was the only witness to testify. He testified that Elmo Greer had a net worth of over $46 million for the year 2000; $50 million for the year 2001; $51 million for the year 2002; and $54.3 million for the year 2003. He also reiterated that Elmo Greer’s policy “is to return ... tires to [the home office] because you have to put [the tires] on a machine to see if [they] can be sectioned or recapped. You can’t tell on a job.” Mr. Anderson also testified that Elmo Greer would have been subject to penalties under its contract with the State, including losing the right to continue with the project or not receiving payment for the project, had Elmo Greer been caught burying tires. Following Mr. Anderson’s testimony and further instructions from the court, the jury awarded $2 million in punitive damages. Elmo Greer subse- quently moved for a mistrial based on a mention of insurance during the trial. The trial court denied the motion. Elmo Greer also filed a motion to alter or amend the judgment or for a remittitur of the punitive damages award. The trial court modified the award of punitive damages to $1 million to conform to App. 14 the amount the Goffs sought in their complaint,’ but otherwise denied Elmo Greer’s motion to alter or amend. The trial court approved the punitive award after analyzing the factors the jury was instructed to consider under Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901-02 (Tenn. 1992). The Court of Appeals reversed the award of punitive damages, concluding that the trial court erroneously relied on Tennessee’s environmental statutes in affirming the award given the jury’s finding that Elmo Greer had not committed an environmental hazard. The Court of Appeals thus remanded the case to the trial court to reconsider the award of punitive damages based on the nuisance theory alone. The intermediate court did not address whether the award violated Elmo Greer’s due process rights. The Goffs have appealed to this Court, asserting that the Court of Appeals erred in remanding the case to the trial court to re-evaluate the punitive damages award considering only the nuisance claim to the exclusion of Tennessee’s environmental laws. The Goffs assert that the same facts support both the environmental tort and nuisance claims and, there- fore, the trial court properly considered Tennessee’s environmental statutes in upholding the punitive award. Elmo Greer responds that the Court of * See Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 328- 29 (Tenn. 1996). App. 15 Appeals correctly determined that the trial court erred in considering Tennessee’s environmental laws in affirming the punitive award and, in any event, no material evidence exists to support an award of punitive damages. Further, Elmo Greer maintains that the trial court gave incorrect jury instructions regarding punitive damages and that the amount of the award is excessive. Finally, Elmo Greer argues that the trial court erred by denying its motion for a mistrial based on the trial court’s mention of in- surance during the trial. Analysis I. “Environmental Tort” & “Environmental Hazard” As a threshold matter, we are compelled to address a source of significant confusion in this case stemming from the use of the term “environmental tort” in the jury instructions. The Goffs’ original com- plaint did not refer to or allege any “environmental tort.” Instead, it alleged that Elmo Greer, “in violation of environmental laws,” buried refuse and other objects on the Goffs’ property without their permis- sion. The Goffs’ first amended complaint alleged that Elmo Greer intentionally buried and concealed waste prohibited by state and federal law, but it likewise did not explicitly state a cause of action for “environ- mental tort.” In their second amended complaint, the Goffs added a nuisance claim alleging that the spilling of oil and petroleum products and the burying App. 16 and concealment of trash and tires constituted a nuisance. This complaint, like the other complaints, did not allege an “environmental tort.” The first mention of “environmental tort” in the record comes not from the pleadings filed by the Goffs, but from Elmo Greer’s trial brief which stated that the Goffs sought to recover for an “environ- mental tort and nuisance caused by environmental tort.” A special verdict form proposed by Elmo Greer requested that the jury decide four causes of action — breach of contract, strict lability, “environmental hazard,” and nuisance. There was no request by Elmo Greer to charge the jury on a cause of action for “environmental tort,” yet that is precisely what happened.° Compounding the confusion, the jury was * The record does not reflect what jury instructions were requested by the Goffs. ° The trial court’s instruction on “environmental tort” provided in part: Environmental Tort It is unlawful to dispose of solid waste in violation of the Solid Waste Disposal Act of the State of Ten- nessee. No solid waste processing facility or disposal facility or site in any political subdivision of this state shall be operated or maintained by any person unless such person has registered with the Commissioncr in the name of such person for the specified facility or site. Whole waste tires, lead acid batteries, and used oil must be disposed of in a State approved site. It is unlawful to construct, alter or operate a solid waste processing or disposal faclity or site in (Continued on following page) App. 17 provided a verdict form containing the four causes of action proposed by Elmo Greer, including the ques- tion, “do you find that [Elmo Greer] caused an enut- ronmental hazard to the Goff property?”’ (Emphasis added). The phrase “environmental hazard” was not defined in the jury instructions. Instead, there was the instruction on “environmental tort.” This in- struction was then followed by a separate instruction on nuisance, along with a description of the damages that could be awarded for “a nuisance ... by virtue of violation of the rules and regulations or orders of the Commissioner or in such a manner as to create a public nuisance; or to dispose of solid waste in land not designated and approved as a solid waste site. " Although the proposed special verdict form submitted by Elmo Greer was made part of the record, the actual verdict form submitted to the jury is not part of the record. However, we have derived its language and the responses of the jury from’ the actions of the trial judge in reading the questions aloud after the jury returned its verdict. * As to nuisance, the jury was instructed as follows: A nuisance is an unreasonable or unlawful use of property that results in material or substantial annoyance, inconvenience, discomfort, harm, or injury to the [Goffs], or the [Goffs’] free use, possession, or occupation of the [Goffs’] own property. .. . A nuisance extends to everything that endangers health or life, offends the senses, or obstructs the reasonable and comfortable use of property. The standard for deter- mining whether a particular use of property is a nuisance is it’s [sic] effect upon persons of ordinary health and sensibilities, and not upon those who are unusually sensitive or peculiarly susceptible to the thing complained of. App. 18 an environmental tort.” The jury determined that Elmo Greer did not commit an “environmental hazard” which, again, was never defined. Against this unusual and confusing backdrop, we note that Tennessee, recognizing the dangers inher- ent in hazardous waste, has adopted several statu- tory schemes addressing that topic. For example, the Tennessee Hazardous Waste Management Act of 1977, Tenn. Code Ann. §§ 68-212-101-121 (2006 & Supp. 2009), defines hazardous waste as that which may “(A) [cJause, or significantly contribute to an increase in mortality or an increase in serious ir- reversible illness or incapacitating reversible illness; or (B) [plose a substantial present or potential hazard to human health or the environment when im- properly treated, stored, transported, disposed of, or otherwise managed.” Id. § 68-212-104(8).” The Act, which regulates the storage, transportation, treat- ment, and disposal of hazardous waste, see id. § 68- 212-102(1), provides that criminal and civil penalties may be imposed upon one who violates its provisions, see id. § 68-212-114(a), (b), (c). The Act does not, however, specifically provide for the filing of an action by a private individual who alleges harm based on another’s violation of the Act. Rather, the Act provides that “[alny person qualified by law” may intervene in an action brought by regulatory officials * Effective June 25, 2009, subsection (8) became subsection (9). See 2009 Tenn. Pub. Acts ch. 531, §§ 7, 63. App. 19 charged with enforcing the Act, see id. § 68-212- 114(d), and it allows an individual to file a complaint with regulatory officials against an alleged violator, id. § 68-212-117(a). Further, “any citizen” has the right to intervene on the ground that the penalties or remedies imposed by regulatory officials are inade- quate or are based on erroneous findings of fact. Id. § 68-212-114(eX(3)(B). Tennessee also has the Hazardous Waste Man- agement Act of 1983, Tenn. Code Ann. §§ 68-212-201- 227 (2006 & Supp. 2009), which likewise imposes civil and criminal penalties for violating its provisions, id. § 68-212-213. This Act gives regulatory officials su- pervision over enforcement and gives citizens rights to intervene similar to those granted under the 1977 Act. See id. § 68-212-215. There is also the Tennessee Hazardous Waste Reduction Act of 1990, Tenn. Code Ann. §§ 68-212- 301-312 (2006 & Supp. 2009), which creates addi- tional rules and regulations and imposes an addi- tional civil penalty of up to $10,000 for each day a violation of the Act continues. Jd. § 68-212-309. No specific right of individuals to intervene is provided for in the Hazardous Waste Reduction Act of 1990. In addition to the various hazardous waste acts, the legislature adopted in 1969 the Tennessee Solid Waste Disposal Act, Tenn. Code Ann. §§ 68-211-101- 124 (2006 & Supp. 2009), which defines “solid waste” as including App. 20 garbage, trash, refuse, abandoned material, spent material, byproducts, scrap, ash, sludge, and all discarded material including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commer- cial, and agricultural operations, and from community activities. Solid waste includes, without limitation, recyclable material when it is discarded or when it is used in a manner constituting disposal. Id. § 68-211-103(8). The Solid Waste Disposal Act, like the statutes dealing with hazard waste, provides for criminal and civil penalties for a violation of its provisions. See id. §§ 68-211-114 & -117. Although the Solid Waste Disposal Act would apply to circum- stances like the burial of tires on private property, our courts have recognized that it does not provide a private right of action for persons harmed by a violation of its provisions. See Wayne County v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 283 (Tenn. Ct. App. 1988). Instead, such persons may seek redress under other legal theories, such as nuisance. /d. Furthermore, in appropriate cases, a cause of action for trespass, negligence, or strict lia- bility could be brought. Given the language of these various environ- mental laws, along with prior cases addressing the Solid Waste Disposal Act itself, it is unclear to this Court why the jury was instructed on “environmental tort.” Arguably, the Goffs lacked standing to bring any such claim. However, since the jury did not find the existence of any environmental tort and the issue App. 21 has not been raised by either side on appeal, it is unnecessary for us to decide at this time whether a private right of action exists for a claimed violation of the state’s environmental statutes. We merely observe at this point that the same facts supporting a violation of the Solid Waste Disposal Act can constitute a nuisance, as found by the jury in this case. Il. The Punitive Damages Award As indicated above, after finding that Elmo Greer created a nuisance, the jury awarded $2 million in punitive damages. The trial court modified the award to $1 million to conform to the amount the Goffs sought in their complaint. Elmo Greer attacks the modified punitive damage award on four grounds. First, Elmo Greer asserts that the evidence is in- sufficient to support any award of punitive damages. Second, Elmo Greer argues that the trial court erred in considering Tennessee’s environmental statutes in affirming the punitive damage award. Third, Elmo Greer argues that the amount of the punitive award is excessive to the point that it violates due process under standards adopted by the United States Supreme Court in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), and its progeny. And fourth, Elmo Greer contends that, because the Goffs pled only intentional and fraudulent conduct, the trial court erred when it instructed the jury that intentional or reckless conduct can form the basis for punitive damages and further erred in failing to instruct the App. 22 jury that punitive damages are proper only in egregious circumstances. We address each of these arguments in turn. A. Sufficiency of the Evidence Supporting Punitive Damages Compensatory and punitive damage awards serve vastly different purposes. Compensatory dam- ages are intended to compensate an injured plaintiff for personal injury or property damage and thereby make the plaintiff whole again. Hodges, 833 S.W.2d at 902. In contrast, punitive damages are intended to “punish a defendant, to deter him from committing acts of a similar nature, and to make a _ public example of him.” Huckeby v. Spangler, 563 S.W.2d 555, 558-59 (Tenn. 1978). Punitive damages are thus appropriate only in the most egregious cases and, consequently, a verdict imposing such damages must be supported by clear and convincing evidence that the defendant acted intentionally, fraudulently, ma- liciously, or recklessly. Hodges, 833 S.W.2d at 901. Evidence is clear and convincing when it leaves “no serious or substantial doubt about the correctness of the conclusions drawn.” Jd. at 901 n.3. In other words, the evidence must be such that the truth of the facts asserted be “highly probable.” Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005). In this case, the jury found that the Goffs had proven by clear and convincing evidence that Elmo App. 23 Greer was “guilty of egregious, intentional or reckless acts” and thus punitive damages were warranted. Elmo Greer asserts that the record does not support the jury’s conclusion and therefore the punitive damage award should be reversed in its entirety. We thus review the record to determine whether there is material evidence to support the jury’s finding that there is no serious or substantial doubt that Elmo Greer acted intentionally” or recklessly." Flax uv. DaimlerChrysler Corp., 272 S.W.3d 521, 532 (Tenn. 2008). The jury had evidence before it that the tires discovered on the Goffs’ property were buried eight to nine feet deep una: © a layer of compacted rocks, some of which were the size of a pick-up truck. One of these tires was eight feet tall and weighed at least one ton. It is undisputed that the tires, along with the steel pipes, were unearthed in the fill area of the Goffs’ property. Ken Johnson, the geologist who testified for the Goffs, stated that given their size the buried tires could not have been accidentally covered up, noting that it had to be a conscious and intentional act to '° A person acts intentionally when “it is the person’s conscious objective or desire to engage in the conduct or cause the result.” Hodges, 833 S.W.2d at 901. '' A person acts recklessly when the person “is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. App. 24 bury them. One of Elmo Greer’s witnesses, Johnny Michael Apple, likewise testified that “someone was trying to hide those [tires].” Accordingly, the jury heard witnesses proffered by both parties asserting that the only way to bury large tires eight or nine feet underground would be to do so intentionally. Further, the jury had before it the testimony of Mr. Goff that he repeatedly questioned Elmo Greer’s employees about the condition of the fill area and how he sought assurances that nothing but rock and dirt would be buried on his land. He specifically told Elmo Greer not to bury the tires he had seen. Elmo Greer’s personnel repeatedly told him “not to worry about it” and “we'll clean it up.” The tires were nonetheless buried. Although Elmo Greer’s chief engineer, Mr. Anderson, refused to acknowledge that the unearthed tires belonged to Elmo Greer or that Elmo Greer buried the tires, we are persuaded that the jury reasonably concluded that Elmo Greer acted in- tentionally, or at least recklessly, in burying the tires. Additionally, the evidence demonstrated that there are strong public policy reasons against burying waste tires and that Elmo Greer was aware of these policies. Mr. Anderson testified that Elmo Greer was obligated to follow “state and federal regulations” and that the company would have been subject to penalties under its contract with the State had Elmo Greer been caught burying tires. Elmo Greer none- theless buried the tires and subsequently showed no remorse for doing so. In fact, Elmo Greer proffered testimony from several witnesses that downplayed App. 25 the significance of burying the tires. The public policy of this State, however, suggests that inappropriately burying even one waste tire is one too many, subjecting the violator to potentially significant financial penalties, i.e., up to $5,000 per day. See Tenn. Code Ann. § 68-211-117(aX1). The record also indicates that properly disposing of the waste tires would have cost Elmo Greer money. The jury could have reasonably concluded that Elmo Greer intentionally buried the tires to avoid this expense. Viewing these circumstances as a whole, we have no difficulty finding that the record contains material evidence supporting the jury’s finding by clear and convincing evidence that Elmo Greer acted intentionally or recklessly. B. Consideration of the State’s Environ*iental Laws Once a jury awards punitive damages, the trial court must review the award to ensure that the wrongdoer’s conduct rose to the level where punitive damages are appropriate. Hedges, 833 S.W.2d at 902. The trial court thus reviews the evidence to consider whether the jury’s findings are supported by clear and convincing evidence and whether the punitive award effectively punishes ana deters the defendant from committing the same acts in the future. To guide trial courts in this review, we have identified a number of relevant factors: (1) The defendant’s financial affairs, finan- cial condition, and net worth; App. 26 (2) The nature and reprehensibility of defendant’s wrongdoing, for example (A) the impact of defendant’s conduct on the plaintiff, or (B) The relationship of defendant to plaintiff; (3) The defendant’s awareness of the amount of harm being caused and defendant’s moti- vation in causing the harm; (4) The duration of defendant’s misconduct and whether defendant attempted to conceal the conduct; (5) The expense plaintiff has borne in the attempt to recover the losses; (6) Whether defendant profited from the activity, and if defendant did profit, whet] er the punitive award should be in excess of the profit in order to deter similar future behavior; (7) Whether, and the extent to which, de- fendant has been subjected to previous punitive damages awards based upon the same wrongful act; (8) Whether, once the misconduct became known to defendant, defendant took reme- dial action or attempted to make amends by offering a prompt and fair settlement for actual harm caused; and App. 27 (9) Any other circumstances shown by the evidence that bear on determining the proper amount of the punitive award. Hodges, 833 S.W.2d at 901-02. Analyzing these factors in great detail, the trial court concluded that clear and convincing evidence demonstrated that Elmo Greer intentionally buried the tires unearthed from the Goffs’ land and that such behavior warranted a $1 million punitive damage award. In support of this co-:clusion, the trial court noted that the burying of tires was against the State’s policy “to avoid pollution and the creation of unpermitted landfills,” that the “State of Tennessee has a strong and legitimate interest in preventing construction companies ... from dumping or polluting property located within the state,” and that “[blurying solid waste tires is a violation of [the] Tennessee Solid Waste Disposal Act.” The Court of Appeals determined that because the jury found that Elmo Greer had not committed an environmental tort, the trial court should not have relied on the State’s environmental statutes and policies in affirming the award of punitive damages. Based on this finding, the Court of Appeals reversed the award of punitive damages and remanded the case to the trial court to reconsider the award based on the nuisance theory alone. The Goffs assert that the trial court correctly considered the State’s pollution statutes in affirming the punitive award because these laws and the App. 28 policies they reflect are relevant in determining the reprehensibility of Elmo Greer’s actions. The Goffs further assert that the trial court did not consider the environmental tort claim itself in reviewing the punitive award, but the facts supporting the nuisance claim. Elmo Greer responds that the trial court improperly based the punitive award upon an environmental tort theory that the jury rejected. Accordingly, Elmo Greer argues that the Court of Appeals properly corrected the trial court’s error by remanding the case for reconsideration of the punitive award without regard to the State’s environmental laws. We are persuaded that the Goffs have the better argument. The evidence supporting the nuisance claim was the proof regarding buried whole waste tires. In order to determine the reprehensibility of burying whole waste tires, the trial court considered the State’s policy regarding such action. To this end, the trial court correctly noted that the State has enacted legislation against burying whole waste tires, recited the public policy behind that legislation, ack- nowledged that Elmo Greer was aware of the State’s policy against burying waste tires, and observed that high civil penalties are permissible for burying waste tires. In our view, the fact that the legislature has determined it necessary to prevent the improper burial of tires “to protect the public health, safety and welfare” is important in the discussion of the reprehensibility of Elmo Greer’s actions. See Tenn. Code Ann. § 68-211-102(a). Accordingly, we do not find App. 29 that these assertions by the trial court impiied that the jury found Elmo Greer liable for violating any of the state’s Hazardous Waste Disposal Acts or that the trial court relied upon the environmental tort cause of action itself in reviewing the punitive award. Instead, we find that the trial court referenced the State’s solid waste disposal laws to explain why the creation of a nuisance by burying whole waste tires was egregious enough to warrant punitive damages. Moreover, as noted above, the same facts supporting a violation of the Solid Waste Disposal Act can con- stitute a nuisance, as found by the jury in this case. See Wayne County, 756 S.W.2d at 283. We thus conclude that the trial court’s consideration of stat- utes and policies against pollution and unauthorized landfills was legally permissible and factually appropriate. C. Excessiveness of the Award/Due Process Having determined that the record contains evidence sufficient to award punitive damages and that the trial court did not err in referencing the State’s environmental laws in reviewing the punitive award, we now must decide whether the size of the award viclates Elmo Greer’s due process rights under the Fourteenth Amendment to the United States Constitution. See State Farm Mut. Auto. Ins. Co. uv. Campbeli, 538 U.S. 408, 412 (2003); Gore, 517 U.S. at 562-63; Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 7-8 (1991). When deciding whether a punitive damages award is excessive to the point that it App. 30 transgresses constitutional due process standards, our review is de novo to ensure that the award is based on an application of the law rather than the jury’s caprice. Campbell, 538 U.S. at 418. The United States Supreme Court squarely addressed for the first time whether a punitive damages award offended the Fourteenth Amendment in Haslip, 499 U.S. at 18. In Haslip, the jury found the defendant liable for fraud and awarded com- pensatory damages in the amount of $200,000 together with punitive damages in the amount of $840,000. The Court began its analysis by reviewing the long-standing history of punitive awards, noting first that “_plunitive damages have long been a part of traditional state tort law,” id. at 15 (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984)), and concluding that it “cannot say that the common-law method for assessing punitive damages is so inherently unfair as to deny due process and be per se unconstitutional,” id. at 17. The Court also acknowledged, however, that “[o]ne must concede that unlimited jury discretion — or unlimited judicial discretion for that matter — in the fixing of punitive damages may invite extreme resulis that jar one’s constitutional sensibilities.” Jd. at 18. Recognizing the difficulty in attempting to “draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable,” the Court in Haslip emphasized that “general concerns of rea- sonableness and adequate guidance from the court when the case is tried to a jury properly enter into App. 31 the constitutional calculus.” Jd. The Court then upheld the punitive award before it, holding as follows: We are aware that the punitive damages award in this case is more than 4 times the amount of compensatory damages, is more than 200 times the out-of-pocket expenses of respondent Haslip, and, of course, is much in excess of the fine that could be imposed for insurance fraud under {Alabama law]. Im- prisonment, however, could also be required of an individual in the criminal context. While the monetary comparisons are wide and, indeed, may be close to the line, the award here did not lack objective criteria. We conclude, after careful consideration, that in this case it does not cross the line into the area of constitutional impropriety. Id. at 23-24 (citations omitted). Several years later, again considering a due process challenge to punitive damages, the Court made clear that “notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.” Gore, 517 U.S. at 574. And, although the Court has emphasized that punitive damages are “aimed at deterrence and retribution,” Campbell, 538 U.S. at 416, and that a jury’s “imposition of punitive damages is an ex- pression of its moral condemnation,” Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, App. 32 432 (2001), it has also warned that “|t]o the extent an award [of punitive damages] is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Campbell, 538 U.S. at 417. To assist courts in determining whether a punitive award is grossly excessive and violates due process, the Court has identified three guideposts: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases. Gore, 517 U.S. at 574-75. We will consider the application of each of these guideposts to the punitive damages awarded in this case. (1) Reprehensibility of the Conduct The first of the three guideposts is “[plerhaps the most important indicium of the reasonableness of a punitive damages award.” Gore, 517 U.S. at 575. Citing factors similar to those set forth in Hodges, the Supreme Court has explained that “some wrongs are more blameworthy than others,” id., including “trickery and deceit,” zd. at 576 (quoting 7’XO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 (1993)). And while the Court has indicated that purely economic harm may be less reprehensible than harm involving health and safety, it has also indicated that “infliction of economic injury, especially when done intentionally through affirmative acts of App. 33 misconduct, or when the target is financially vul- nerable, can warrant a substantial penalty.” /d. at 576 (citation omitted). The Supreme Court has also observed that, when addressing the reprehensible nature of a defendant’s conduct, courts should consider whether the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. Campbell, 538 U.S. at 419. Applying these factors to the instant case, we find Elmo Greer’s actions objectionable in several significant ways. First, Elmo Greer intentionally buried tires on the Goffs’ property. Elmo Greer en- gaged in this deliberate conduct despite its repeated assurances to Mr. Goff “not to worry about it” and “we'll clean it up,” and despite Mr. Goff’s specific request that the tires not be buried. Second, this intentional conduct included an effort by Elmo Greer to hide its deliberate misdeeds because Elmo Greer buried the tires under large, heavy limestone rocks some as large as a pick-up truck — eight or nine feet underground. The Goffs were helpless to discover the tires without hiring excavation experts at their own expense. Third, because Mr. Anderson testified that App. 34 there is a cost associated with properly disposing of tires, it appears that Elmo Greer buried them to avoid having to pay these expenses.” Fourth, Elmo Greer knew that its conduct was not only in violation of its contract with the Goffs, but was illegal as well, for Mr. Anderson admitted to being aware of State law regarding the disposal of tires. He also knew that Elmo Greer would have faced heavy penalties had the company been caught burying tires. Fifth, Elmo Greer’s conduct violated clearly expressed public policies regarding pollution and unauthorized land- fills. The legislature has clearly set forth the public policy behind the State’s solid waste disposal laws: In order to protect the public health, safety and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, enhance the beauty and quality of our environment and provide a coordinated statewide solid waste disposal program, it is declared to be the public policy of the state of Tennessee to regulate solid waste disposal to: (1) Provide for safe and sanitary processing and disposal of solid wastes; “ The trial court observed that E}mo Greer “knew how large tires were required to be cut up and shredded and then disposed of in an approved site. It is difficult to determine the defendant’s motivation. Was it convenience? Was it laziness? Was it ‘we won't get caught’? Was it to save money and increase profit? Whatever the motivation, it was not admirable.” App. 35 (2) Develop long-range plans for adequate solid waste disposal systems to meet future demands; [and] (3) Provide a coordinated statewide pro- gram of control of solid waste processing and disposal in cooperation with federal, state, and local agencies responsible for the pre- vention, control, or abatement of air, water, and land pollution. Tenn. Code Ann. § 68-211-102(a)."" The legislature has also noted the important state interest of “educat[ing] and encouragling] generators and handlers of solid waste to reduce and minimize to the greatest extent possible the amount of solid waste which requires collection, treatment, incineration or disposal through source reduction, reuse, composting, recycling and other methods.” /d. § 68-211-803(b). Despite being aware of these policies, Elmo Greer elected to ignore them. Elmo Greer’s conduct was exacerbated by its refusal to accept responsibility for its actions. Mr. Anderson conditioned the company’s apology by stating that “/i/f Elmo Greer had something to do with [the tires], [it was] sorry.” (Emphasis added). Elmo Greer’s witnesses downplayed the significance 13 Like the trial court, we reference relevant portions of the Solid Waste Disposal Act to explain why burying tires con- stitutes reprehensible conduct, though we realize that the jury did not find Elmo Greer liable for creating an “environmental hazard.” App. 36 of the concealed tires. This testimony, in our opinion, does not demonstrate much accountability or remorse — important factors in evaluating the likelihood that a tortfeasor will repeat its tortious conduct. Instead, it suggests that Elmo Greer operates with the mind-set that burying tires in violation of the law and in breach of contractual obligations is simply “no big deal.” These multiple aspects of Elmo Greer’s conduct are indicative of bad faith. See Gore, 517 U.S. at 579 (invalidating a punitive damage award in part because the record disclosed “no deliberate false statements, acts of affirmative misconduct, or con- cealment of evidence of improper motive”). Moreover, they indicate that Elmo Greer was willing to de- liberately harm not only the Goffs, but willing to place others potentially at risk by essentially creating an unauthorized landfill. Elmo Greer’s disregard for the public interest is all the more troubling in light of the fact that it was acting as a contractor for the State of Tennessee. Elmo Greer did nothing to alleviate the situation its indifference had created, but rather chose to hide and trivialize it. At the same time, consistent with the testimony presented, the jury found that Elmo Greer did not create an environmental hazard to the Goff property. The expert testimony was clear that there is little likelihood that environmentally dangerous or other hazardous chemicals have been spilled onto the land or into the water supply. The Tennessee Department of Environment and Conservation was made aware of App. 37 the situation but declined to assess any penalties because it did not find any long term health or safety risks to exist on this property. Thus, although Elmo Greer’s conduct was sufficiently reprehensible for this guidepost to point toward a substantial punitive damages award, it did not rise to the highest level of reprehensibility. (2) Disparity Between the Harm and the Award The second guidepost is the “disparity between the harm or potential harm suffered” and the punitive damages awarded. Gore, 517 U.S. at 575. This guidepost reflects the general concern that punitive damages bear a “reasonable relationship” to compensatory damages. /d. at 580. According to the Supreme Court, “the proper inquiry is whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred.” /d. at 581 (internal quotation marks and citation omitted). Although the Court has re- peatedly refused to “impose a bright-line ratio which a punitive damages award cannot exceed,” the Court has also stated that “few awards exceeding a single- digit ratio between punitive and compensatory dam- ages ... will satisfy due process.” Campbell, 538 U.S. at 42. See also Gore, 517 U.S. at 582-83 (“Of course, we have consistently rejected the notion that the con- stitutional line is marked by a simple mathematical App. 38 formula....”). Moreover, the Supreme Court has made clear that “[t]he precise award in any case, of course, must be based upon the facts and circum- stances of the defendant’s conduct and the harm to the plaintiff,” and that “there are no mgid bench- marks that a punitive damages award may not surpass.” Campbell, 538 U.S. at 425." We agree. The Supreme Court has acknowledged that “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Gore, 517 U.S. at 5829. “A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine.” Jd.” ‘* Although the Supreme Court has not adopted a bright- line rule to be applied, it did impose a specific 1-te-1 ratio of punitive damages to compensatory damages in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). In that case, following the wreck of the Exxon Valdez and the resulting oil spill in Alaska, compensatory damages were assessed against Exxon in the amount of $507.5 million, plus punitive damages of $5 billion. After noting that the case “differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process,” the Court determined that a 1-to-1 ratio of punitive damages to compen- satory damages “is a fair upper limit in such maritime cases.” Id. at 2626, 2633. The Court therefore remitted the punitive damages award to $507.5 million. ‘* We note that some federal courts have suggested that in cases where nominal damages are awarded, the ratio inquiry (Continued on following page) App. 39 However, the Court has described as “breathtaking” a 500-to-1 ratio between punitive and compensatory awards. Id. at 583. In this case, Elmo Greer asserts that a $1 million punitive damage award is excessive because it exceeds the compensatory award by a ratio of 302 to 1. Thus we must analyze the Supreme Court’s cases dealing with punitive damages in greater detail to determine whether focusing only on the ratio, and insisting that only single-digit ratios are constitu- tional, reflects an overly restrictive view that does not comport with the Supreme Court’s jurisprudence on the subject. : In TXO Production Corp., 509 U.S. at 453 the Supreme Court affirmed a punitive damage award that was 526 times as great as the compensatory damages. In that case, TXO contracted to purchase the oul and gas rights on a tract of land owned by Alliance. TXO subsequently manufactured a claim that title to the property was defective and attempted to renegotiate its deal with Alliance. When the nego- tiations were unsuccessful, TXO sought a declaratory judgment to remove the purported defect. Alliance counterclaimed for slander of title and was awarded can be largely disregarded. See, e.g., Abner v. Kansas City S. R.R., 513 F.3d 154, 165 (5th Cir. 2008); Saunders v. Branch Banking & Trust Co., 526 F.3d 142, 15455 (4th Cir. 2008). Although the compensatory award of $3,305 in this case is not nominal, it is low enough that we consider the ratio guidepost with caution. App. 40 $19,000 in actual damages and $10 million in punitive damages. In affirming the award, the Supreme Court observed that it “is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred.” Jd. at 4601. The Court then held that it did not consider the dramatic disparity between the actual damages and the punitive award controlling in a case of this character. On this record, the jury may reasonably have determined that petitioner set out on a malicious and fraudulent course to win back, either in whole or in part, the lucrative stream of royalties that it had ceded to Alliance. The punitive damages award in this case is certainly large, but in light of the amount of money potentially at stake, the bad faith of petitioner, the fact that the scheme employed in this case was part of a larger pattern of fraud, trickery and deceit, and petitioner’s wealth, we are not per- suaded that the award was so “grossly excessive” as to be beyond the power of the State to allow. Id. at 462 (footnote omitted). Other courts have been willing to affirm ratios exceeding single digits when the compensatory damages were relatively low but the actions of the App. 41 wrongdoer were egregious. For example, in Saunders v. Branch Banking & Trust Co. of Virginia, 526 F.3d 142, 154-55 (4th Cir. 2008), the Fourth Circuit affirmed an 80-to-1 ratio in a case involving violations of the Fair Credit Reporting Act. In Abner v. Kansas City Southern Railroad, 513 F.3d 154, 165 (5th Cir. 2008), the Fifth Circuit affirmed a 125,000-to-1 ratio in a case involving a race-based hostile work en- vironment. In Kemp v. American Telephone & Telegraph Co., 393 F.3d 1354, 1365 (11th Cir. 2004), the Eleventh Circuit imposed a punitive award of $250,000 accompanying compensatory damages of only $115.05, a ratio of 2,173 to 1. In Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003), the Seventh Circuit upheld a 37.2-to-1 ratio in a case involving bedbugs at a motel. In Lynn v. TNT Logistics North America Inc., 275 S.W.3d 304, 312 (Mo. Ct. App. 2008), the court imposed in a sexual harassment case a punitive award equivalent to a 75- to-1 ratio. In Jones v. Rent-A-Center, Inc., 281 F. Supp. 2d 1277, 1290 (D. Kan. 2003), the court upheld a 29-to-1 ratio in a sexual harassment case. These cases reflect the principle that “there are no rigid benchmarks that a punitive damages award may not surpass,” but instead “[t]he precise award in any case, of course, must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” Campbell, 538 U.S. at 425. In this case, the ratio of $1 million punitive damages to compensatory damages as approved by the trial judge is over 302 to 1. This ratio is excessive App. 42 in ight of the circumstances presented. As set forth above, Elmo Greer buried tires which, while consti- tuting a nuisance, do not constitute an environmental hazard or threaten the health or safety of any individual. Before leaving this point, however, we note that the jury heard proof that the cost to plaintiffs to clean up the entire property, to ensure that no other impermissible waste materials are buried on their property, would be $318,000. Although the jury rejected the notion that this amount was the required measure of damages, it highlights the problem that the monetary value of noneconomic harm is some- times difficult to determine, thus justifying a higher ratio. Gore, 517 U.S. at 583. (3) Difference between Punitive Damages and Other Penalties The third and final guidepost requires courts to compare the punitive damage award to civil or criminal penalties authorized or imposed in com- parable cases. Gore, 517 U.S. at 583. The Supreme Court has instructed that in determining whether the award is excessive, courts should give “‘“substantial deference” ‘to legi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1560%3A1. Public record. Not legal advice.