Petition for Writ of Certiorari — Craig v. Holsey

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Q5170 1 JUN 23 2004

Supreme Court of the Anited States

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RODNEY LEROY CRAIG,

Petitioner,

TAMIKA HOLSEY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

-JAMES T. BUDD

Counsel of Record

MABRY & MCCLELLAND LLP

2200 Century Parkway, N.E.

10th Floor

Atlanta, Georgia 30345

(404) 325-4800

Counsel for Petitioner

Sani etal

—

i

QUESTION PRESENTED

In State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408 (2003), and BMW of N. Am., Inc. v. Gore, 517

U.S. 559 (1996), this Court held that although States

possess broad discretion with respect to punitive dam-

ages, grossly excessive punitive damages awards violate

the Due Process Clause of the Fourteenth Amendment to

the United States Constitution because they further no

legitimate purpose and constitute an arbitrary depriva-

tion of property. The question presented is:

Whether a punitive damages award is unconstitution-

ally excessive under State Farm and Gore, when:

a.

the award is over 22 times the plaintiff’s com-

pensatory damages;

the court below analyzed the constitutionality

of the award by comparing it to hypothetical

compensatory damages, rather than the plain-

tiff’s actual compensatory damages;

the court below based its analysis on a Supreme

Court of Georgia case that was decided prior to

Gore and rejects “the notion that punitive dam-

ages must necessarily bear some relationship to

the actual damages awarded by the jury;” and

the court below relied on dissimilar conduct on

the part of the tortfeasor to justify the award.

il

PARTIES TO THE PROCEEDING

Rodney Leroy Craig and Tamika Holsey.

RULE 29.6 STATEMENT

No corporation is a party to this action. Petitioner

Craig is insured by Infinity Insurance Company.

TABLE OF CONTENTS

QUESTION PRESENTED.............0cscececees:

PARTIES TO THE PROCEEDING ...............

SERPs SPD WP CPAROEEEN Ev ccnvccusvvesceccervacees

JURISDICTION. .......ccccecececceceeee aS aoe

CONSTITUTIONAL PROVISIONS

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WU PRE REIT E SOP BNEE CAGE 20.65 cc cccccenscccess

REASONS FOR GRANTING THE PETITION ..

THE GEORGIA COURT OF APPEALS’

RULING UPHOLDING THE PUNITIVE

DAMAGES AWARD DIRECTLY

CONFLICTS WITH THIS COURT'S

DECISIONS IN GORE AND

8 ET ere ee Te eT eee Teer ee

A. The Punitive Damages Award Is

Presumptively Unconstitutional

Because Of The 22.7-to-1 Ratio Of

Punitive to Compensatory Damages....

iV

B. The Georgia Court Of Appeals’

Comparison Of The Punitive Damages

Award To Hypothetical Compensatory

Damages, Rather Than The Plaintiff's

Actual Compensatory Damages,

Conflicts With State Farm...............

C. The Georgia Court Of Appeals’

Justification Of The Punitive Damages

Award By Reference To Dissimilar

Conduct On The Part Of The

Tortfeasor Conflicts With State Farm ..

SUNNY 56 000 nine Kevnssuasdeacusadexasnens

APPENDIX

Supreme Court of Georgia’s Denial of

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PAGE

15

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TABLE OF AUTHORITIES

Cases: PAGE

BMW of N. Am., Inc. v. Gore, 517 U.S. 559

CEPR ks. iadesinsiceves sicwestesaneseeeeee passim

Bolsta v. Johnson, No. 2003-004,

2004 WL 444649 (Vt. Mar. 4, 2004)......... 14

Campbell v. State Farm Mut. Auto. Ins. Co.,

No. 981564, 2004 WL 869188

(Utah ADE. Zoi DOO) i csissistaitevncissieeus 8,9

Hospital Auth. of Gwinnett County v. Jones, :

409 S.E.2d 501 (Ga. 1991)..........c0ce0e. 5, 10, 11

Pacific Mut. Life Ins. Co. v. Haslip,

O99 4).3..1, C2987) vehs0nsciaeeeeeee $, 11, §2

State Farm Mut. Auto. Ins. Co. v. Campbell,

5358 U.S. GS (20s) inedsctadeskcsseee ene passim

TXO Production Corp. v. Alliance Resources

Corp., 509 U.S. 4635, (EGR S ye vcviesiscsseveees 12

Willet v. Stookey, P.C., 568 S.E.2d 520

(Ga. Ct. App. ZOGB) 00s x0ssedescvevessesueane p

Constitution, Statutes, and Regulations:

U.S. Const. amend. XIV, § 1............. 2. eee eee. l

28 USA. § TSS) is ccksicsxecs cee eee l

Ga. Code Ann. § 40-6-49 ... 0.0... ccc eee l

Ga. Code Ann. § 40-6-270(a) .................000 l

Ga. Code Ann. § 40-6-391(a) ............... 20 eee ae

i ihiail Sila a thitetk cats aia

PETITION FOR A WRIT OF CERTIORARI

Petitioner Rodney Leroy Craig respectfully petitions

this Court for a writ of certiorari to review the judgment

of the Court of Appeals of Georgia in this case.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals of Georgia (App.,

infra, 2a) is reported at 590 S.E.2d 742. The order of the

Supreme Court of Georgia denying certiorari (App.,

infra, la) is not reported.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a). The Supreme Court of Georgia denied

discretionary review in this case on March 29, 2004.

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution provides in pertinent

part: “No State shall. . . deprive any person of life, lib-

erty, Or property, without due process of law.” U.S.

Const., amend. XIV, § 1.

STATEMENT OF THE CASE

On August 9, 1998, at approximately 1:44 a.m., Rod-

ney Leroy Craig was involved in an automobile accident

with Tamika Holsey. Craig was driving under the influ-

ence at the time of the accident and he was cited for, and

pled guilty to charges of following too closely (Ga. Code

Ann. § 40-6-49), leaving the scene of an accident involv-

ing injury (Ga. Code Ann. § 40-6-270(a)), and driving

to

under the influence, first offense (Ga. Code Ann. § 40-6-

391(a)). As a result of the accident, Holsey suffered

minor neck and back injuries that substantially resolved

prior to trial.

On June |, 2000, Holsey filed a Complaint against

Craig for her personal injuries arising from the accident.

The case then proceeded to trial on March 12th and 13th,

2002. Because punitive damages were sought, the trial

was bifurcated as mandated under Georgia law. Prior to the

commencement of trial, Craig objected through a Motion in

Limine to the introduction of any evidence or comment on

his criminal record beyond the use of a certified copy of his

conviction for impeachment purposes.' Craig also moved

in limine to preclude any evidence of his drug or alcohol

use on occasions other than the night of the accident.

Nevertheless, Holsey mounted an attack on Craig at

trial for conduct unrelated to the accident; including his

prior conviction for drug possession and his use of mar-

ijuana prior to and following the day of the accident.

During the first portion of the bifurcated trial, the trial

court permitted Holsey’s attorney to question Craig and

to read from his deposition regarding his prior and sub-

sequent drug and alcohol use over the continuing objec-

tions of his attorney. As a result, evidence that Craig was

an occasional marijuana user and that he used marijuana

subsequent to the day of the accident was admitted over

the objections of his attorney.

During the punitive damages phase of the trial, the

trial court again allowed Holsey’s attorney, over objec-

, Georgia law provides that a witness may be impeached by

introducing a certified copy of a conviction of a crime involving

moral turpitude, but the facts surrounding the conviction are not

admissible unless the witness attempts to rehabilitate their character

by explaining the circumstances of the conviction. Willet v. Stookey,

P.C., 568 S.E.2d 520 (Ga. Ct. App. 2002).

RW etna Pt RS te ote RA? lle AOS eA ne ee a

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tion, to read into evidence even more of Craig’s depo-

sition testimony regarding drug use on occasions other

than the night of the accident. The trial court further

allowed Holsey’s attorney to question Craig regarding

marijuana use subsequent to the accident.

The trial court also permitted Holsey’s attorney to

question Craig and read portions of his deposition tran-

script pertaining to the details of his prior felony con-

viction for possession of a controlled substance in

Arkansas. Craig’s arrest for possession of a controlled

substance occurred on October 20, 1996, nearly two

years prior to Craig’s accident with Holsey. Specifically,

Holsey’s attorney read from Craig’s deposition transcript

regarding the details of his prior felony conviction and

the fact that the controlled substance was crack cocaine.

Holsey’s attorney was also permitted, over objection, to

question Craig regarding the details of this conviction

and his intent to use crack cocaine.

This culminated in Holsey’s attorney being allowed to

argue to the jury that they should award punitive dam-

ages based upon all of Craig’s conduct, much of which

was unrelated to the accident with Holsey and had

occurred years before the accident. In addition to

recounting all of this prejudicial evidence to the jury,

Holsey’s attorney argued the following to the jury: “And

I can’t tell you, and don’t profess to tell you how much

punitive damages you should award in this case. But I

tell you that its unlimited, the amount.”

Following the introduction of this inadmissable and

prejudicial evidence and Holsey’s attorney's argument,

the jury returned a verdict and judgment against Craig in

the amount of only $8,801.40 in actual and compen-

satory damages. The award of a small amount of actual

and compensatory damages is conclusive proof of the

very limited scope of Holsey’s loss.

In stark contrast to these damages, the jury awarded

Holsey $200,000.00 in punitive damages. Therefore, the

punitive damages award was 22.7 times greater than the

compensatory award. Craig moved the trial court for a

new trial, but the motion was denied.

Craig then appealed to the Georgia Court of Appeals.

Between the trial and the decision by the Court of

Appeals, this Court decided State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513 (2003).

One of Craig’s arguments on appeal was that the puni-

tive damages award was so grossly excessive that it vio-

lated the Due Process Clause of the Fourteenth

Amendment of the United States Constitution. However,

the Georgia Court of Appeals affirmed and upheld the

$200,000.00 punitive damages award.

In so doing, the court below rejected Craig’s claim

that the evidence introduced at trial had unduly preju-

diced him and resulted in a punitive award that punished _

him for conduct that was unrelated to the traffic accident

with Holsey. The court below further rejected Craig’s

claim that the punitive damages award was grossly

excessive and thus, unconstitutional under the Due Pro-

cess Clause of the Fourteenth Amendment to the United

States Constitution.

In a full bench decision with one dissent, the Court of

Appeals justified the 22.7-to-1 ratio of punitive to com-

pensatory damages by hypothesizing that Holsey could

have died as a result of the accident. The court below

then compared the punitive damages award to hypo-

thetical wrongful death compensatory damages awards

even though Holsey was not only alive and had recov-

ered, but had suffered less than $9,000.00 in actual and

compensatory damagés. The Court of Appeals reasoned

that “[{i]n Georgia, awards for wrongful death can easily

approach or exceed the amount of punitive damages

awarded in the present case.” Craig v. Holsey, 590

S.E.2d 742, 748 (Ga. Ct. App. 2003); App., infra, 10a.

Indeed, the Court of Appeals never discussed State

Farm’s recognition that “few awards exceeding a single

digit ratio between punitive and compensatory damages,

to a significant degree, will satisfy due process.” State

Farm, 538 U.S. at 425.

In support of its comparison of hypothetical compen-

satory damages to the actual punitive damages award,

the court below cited to a single Georgia Supreme Court

case, Hospital Auth. of Gwinnett County v. Jones, 409

S.E.2d 501 (Ga. 1991), which was decided prior to Gore

and explicitly “rejected the notion that punitive damages

must bear some relationship to the actual damages

awarded by the jury.” Jd. at 503. Thus, the court below

never compared the punitive damages award to the

actual compensatory damages.

Furthermore, the court below conceded that Georgia

law provides for only modest penalties for Craig’s spe-

cific crimes, which penalties were dwarfed by the

$200,000.00 punitive damages award. The court below,

ignored this important factor by stating that the third

Gore guidepost is “less important than the first two.” ”

Craig, 590 S.E.2d at 748; App., infra, Ila.

Despite the fact that it never applied the second Gore

guidepost and that the third guidepost was not satisfied,

the court below concluded that the punitive damages

award was not grossly excessive so as to be unconstitu-

: Georgia law provides that the criminal penalty for a first

offense of leaving the scene of an accident involving injury is a fine

that cannot exceed $1,000. Ga. Code Ann. § 40-6-270(a). The mon-

etary criminal penalty for a first offense of driving under the influence

is a fine that cannot exceed $1,000. Ga. Code Ann. § 40-6-

391(C)(1)(a).

6

tional under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. /d.

Presiding Judge Andrews dissented, stating that:

the majority seeks to negate the disparity between

the two awards by leaping to the conclusion that

Holsey could have died in this accident and cites to

compensatory damages in wrongful death cases as

analogous to the potential damages in this case. . .

this analogy is not helpful and the majority cites to

no authority on point which would support this

assumption.

Craig, 590 S.E.2d at 749; App., infra, 13a (Andrews,

P.J., concurring in part and dissenting in part). There-

fore, Presiding Judge Andrews concluded that “[i]n this

case, of the three guideposts set out by Gore, the last

two are not met, and only two of the five factors to be

considered are present in the first one. Accordingly, the

punitive damages awarded in this case were excessive

and the judgment should be reversed.” Craig, 590 S.E.2d

at 749-750; App., infra, 14a.

REASONS FOR GRANTING THE PETITION

This Court should grant plenary review because the

reasoning of the Court of Appeals in affirming the puni-

tive damages award is in direct conflict with this Court’s

decisions in State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408, 123 S.Ct. 1513 (2003) and BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996).

Furthermore, the erroneous decision of the Georgia

Court of Appeals highlights a split between those courts

that have properly applied State Farm and Gore and

those that have not.

5

Here, the court below affirmed the punitive damages

award even though only two of the five factors to be

considered under the first Gore guidepost were satisfied,

the second Gore guidepost was never applied, and the

third guidepost was not met. In affirming the punitive

damages award, the court below relied on a Georgia

Supreme Court case that was decided prior to Gore and

explicitly rejected the notion that punitive damages must

bear some relationship to the actual compensatory dam-

ages. Accordingly, the punitive damages award in this

case was grossly excessive and cannot withstand con-

stitutional scrutiny. In the alternative, and at a minimum,

this case must be vacated and remanded so that the puni-

tive damages award can be compared to the actual com-

pensatory damages awarded per Gore and State Farm.

THE GEORGIA COURT OF APPEALS’

RULING UPHOLDING THE PUNITIVE

DAMAGES AWARD DIRECTLY CONFLICTS

WITH THIS COURT’S DECISIONS IN

GORE AND STATE FARM

A. The Punitive Damages Award Is Presump-

tively Unconstitutional Because Of The 22.7-

to-1 Ratio Of Punitive To Compensatory

Damages

~

This Court’s decision in State Farm makes clear that

the 22.7-to-1 ratio of punitive to compensatory damages

in this case is unconstitutionally excessive. Although

this Court has been “reluctant to identify concrete con-

stitutional limits on the ratio between harm, or potential

harm, to the plaintiff and the punitive damages award,”

this Court’s “jurisprudence and the principles it has now

established demonstrate .. . that, in practice, few

awards exceeding a single digit ratio between punitive

and compensatory damages, to a significant degree, will

satisfy due process.” State Farm, 538 U.S. at 424-425. In

fact, this Court has on multiple occasions stressed that

“an award of more than four times the amount of com-

pensatory damages might be close to the line of consti-

tutional impropriety.” /d. at 425; Gore, 517 U.S. at 581;

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24,

111 S.Ct. 1032 (1991).

This conclusion was based, in part, on over 700 years

of legislative history providing for double, treble, or

quadruple damages to punish and deter. State Farm, 538

U.S. at 425 (citing to Gore, 517 U.S. at 581 and n.33).

Accordingly, this Court has held that “Single-digit mul-

tipliers are more likely to comport with due process,

while still achieving the State’s goal of deterrence and

retribution.” State Farm, 538 U.S. at 425.

The ratio in this case does not come'close to the sin-

gle-digit ratios that have traditionally satisfied due pro-

cess. Instead, the plaintiff was awarded punitive

damages that were over twenty-two times the amount of

compensatory damages. Thus, the court below did not

ensure that the measure of punishment was both rea-

sonable and proportionate to the amount of harm to the

plaintiff as is required by State Farm. Id. Indeed, as is

discussed below, the Court of Appeals never compared

the actual compensatory damages to the punitive dam-

ages awazJ as is required by Gore.

The Court of Appeals’ failure to comply with Gore

and State Farm also illustrates the inconsistent appli-

cation by different state courts of this Court’s decisions

on the issue of punitive damages. A comparison of the

Court of Appeals’ decision here with the Supreme Court

of Utah’s recent decision in Campbell v. State Farm Mut.

Auto. Ins. Co., No. 981564, 2004 WL 869188 (Utah Apr.

23, 2004), demonstrates how state courts have varied

9

widely in the application of Gore and State Farm. In

Campbell, the Supreme Court of Utah noted that this

Court “strongly implied” that single digit ratios mark the

outer limits of due process. /d. at *9. Accordingly, the

Court held that a 9-to-1 ratio between compensatory and

punitive damages served Utah's legitimate goals of

deterrence and retribution within the limits of due pro-

cess and thus, reduced the punitive damages award from

$145 million to $9,018,780.75. Jd. at ** 10, 12.

The reasoning and holding of the Utah Supreme Court

demonstrates that it will likely invalidate any punitive

award exceeding a 9-to-! ratio. Conversely, the Georgia

Court of Appeals has signaled that a 22.7-to-1 ratio is

permissible in the State of Georgia and that a compari-

son of the punitive damages award with the actual com-

pensatory damages award is unnecessary. The inconsistent

application of Gore and State Farm by Georgia and Utah

appellate courts evidences a split among state courts

which necessitates this court granting certiorari in this

case.

The Court of Appeals of Georgia's decision in this

case does not comply with Gore and State Farm and it is

inconsistent with the application of these decisions by

other courts. © aus, this petition and plenary review

Should be graated.

B. The Georgia Court Of Appeals’ Comparison

Of The Punitive Damages Award To Hypo-

thetical Compensatory Damages, Rather

Than The Plaintiff’s Actual Compensatory

Damages, Conflicts With State Farm

The court below never articulated how the 22.7-to-1

ratio of punitive damages to compensatory damages in

this case comported with due process, because it never

applied the second Gore guidepost. At no point did the

10

court below compare the actual compensatory damages

to the punitive damages award as is required by the sec-

ond Gore guidepost, nor did it address this Court’s

recognition that “few awards exceeding a single digit

ratio between punitive and compensatory damages, to a

significant degree, will satisfy due process.” State Farm,

538 U.S. at 425.

Instead, the court below improperly justified the puni-

tive damages award by hypothesizing that the plaintiff

could have died as a result of the accident. The court

then compared hypothetical damages awards in wrong-

ful death cases to the actual punitive damages awarded

to determine that there was no disparity between the two

awards. Craig v. Holsey, 590 S.E.2d 742, 748 (Ga. Ct.

App. 2003); App., infra, 10a.

Such a comparison is in direct conflict with Gore and

its progeny because the court below never applied the

second Gore guidepost. Furthermore, the Court of

Appeals’ analysis renders the second Gore guidepost a

nullity because courts could always negate an imper-

missible disparity between compensatory and punitive

awards by leaping to the conclusion that the plaintiff's

injury and resulting compensatory damages could have

been worse. If courts are allowed to compare hypothet-

ical compensatory damages to punitive damages awards,

there will never be a disparity between the two awards.

Just as due process does not permit courts to adjudicate

the merits of hypothetical claims under the Gore repre-

hensibility guidepost, the comparison of hypothetical

compensatory damages to punitive damages under the

second Gore guidepost also violates due process. State

Farm, 538 U.S. at 423.

The only authority that the court below cited in sup-

port of its comparison of hypothetical compensatory

damages to punitive damages is Hosp. Auth. of Gwinnett

ee - eS ee eee ee eee eee ee ee ee ee ee 7

11

County v. Jones, 409 S.E.2d 501 (Ga. 1991). In Jones,

the Georgia Supreme Court “rejected the notion that

punitive damages must necessarily bear some relation-

ship to the actual damages awarded by the jury.” Jones,

409 S.E.2d at 503. The Georgia Supreme Court justified

this conclusion by reasoning that “[w]Jhile the Supreme

Court in Haslip analyzed the punitive damages award by

comparing it to the actual award, nothing in the opinion

mandates such a comparison.” /d.

Here, the plaintiff was not killed nor was she seriously

injured as a result of the accident. Instead, she suffered

back and neck strain that had substantially resolved prior

to trial. As Presiding Judge Andrews recognized in his

dissent, “this was not a potentially fatal accident nor

[was] it a potential wrongful death case.” Craig, 590

S.E.2d at 749; App., infra, 14a (Andrews, P.J., concur-

ring in part and dissenting in part). Therefore, Presiding

Judge Andrews correctly concluded that the Court of

Appeals sought to negate the disparity between the

awards with its hypothetical damages analysis and that

such analysis conflicts with the State Farm opinion.

Craig, 590 S.E.2d at 749; App., infra, 13a.

If the Court of Appeals’ reasoning were to-stand, no

Georgia punitive damages award could ever violate the

second Gore guidepost. Such a conclusion would imper-

missibly render the second Gore guidepost a nullity and

allow unconstitutionally excessive punitive damages

awards to be affirmed. Yet based upon the Court of

Appeals’ decision in this case and the Georgia Supreme

Court’s decision in Jones, the current state of the law in

Georgia is that punitive damages do not have to bear any

relationship to the actual compensatory damages

awarded by the jury. This stands in direct conflict with

this Court’s decisions on punitive damages awards and

its clear mandate.

12

Indeed, the apparent flaw in the Court of Appeals’

comparison of hypothetical damages to the punitive

award is confirmed by the second Gore guidepost, which

is the disparity between the actual or potential harm suf-

fered by the plaintiff and the punitive damages award.

Gore, 517 U.S. at 580. In Gore, this Court confirmed

that “[t]he principle that exemplary damages must bear

a ‘reasonable relationship’ to compensatory damages has

a long pedigree” and “both Haslip and TXO endorsed the

proposition that a comparison between the compensatory

award and the punitive award is significant.” /d. at 580-

581 (citing to Haslip, 499 U.S. at 23-24 and TXO Pro-

duction Corp. v. Alliance Resources Corp., 509 U.S.

443, 460, 113 S.Ct. 2711 (1993)). Furthermore, due pro-

cess requires a comparison of the punitive damages

award to the actual compensatory damages not a com-

parison to hypothetical compensatory damages. State

Farm, 538 U.S. at 423 (holding that “[d]ue process does

not permit courts, in the calculation of punitive damages,

to adjudicate the merits of other parties’ hypothetical

claims against a defendant under the guise of the repre-

hensibility analysis”).

The reasoning of the court below is in direct conflict

with this Court’s mandate, most recently articulated in

State Farm. Accordingly, this petition and plenary

review should be granted.

C. The Georgia Court Of Appeals’ Justification

Of The Punitive Damages Award By Refer-

ence To Dissimilar Conduct On The Part Of

The Tortfeasor Conflicts With State Farm

In affirming the punitive damages award, the court

below relied upon evidence that Craig had smoked mar-

ijuana prior to and after the day of the accident. The

court below further considered the details surrounding

13

Craig’s arrest in 1996 and subsequent conviction for

possession of a controlled substance in Arkansas. State

Farm makes clear that such an analysis is invalid. In ~

State Farm, this Court confirmed that “[a] defendant's

dissimilar acts, independent from the acts upon which

liability was premised, may not serve as the basis for

punitive damages.” State Farm, 538 U.S. at 422. Accord-

ingly, this Court concluded that “[a] defendant should be

; punished for the conduct that harmed the plaintiff, not

for being an unsavory individual or business.” /d. at 423.

Yet in this case, Craig was punished for dissimilar acts

when the jury considered evidence of his drug and alco-

hol use on occasions other than on the day of the acci-

dent and his previous conviction for possession of a

controlled substance. The introduction of this evidence

was then affirmed by the court below. Although the

degree of reprehensibility of a defendant's conduct is the

most important indicium of the reasonableness of a puni-

tive damages award, the court below impermissibly bol-

Stered its reprehensibility conclusion by considering

‘evidence of dissimilar acts. It was the act of driving

while under the influence, not the use of marijuana inde-

pendent of operating a vehicle or Craig’s conviction for

possession of a controlled substance, which arguably

caused the accident and injured the plaintiff. Presiding

Judge Andrews, in his dissent, recognized that “this was

an isolated incident” and that “Craig had no previous

arrests for DUI.” Craig, 590 S.E.2d at 749; App., infra,

13a (Andrews, P.J., concurring in part and dissenting in

part). As in State Farm, there is scant evidence here of

repeated misconduct of the sort that injured the plaintiff.

State Farm, 538 U.S. at 423.

Accordingly, this case was impermissibly used as a

platform to expose and punish Craig for his unsavory

behavior unrelated to the accident in question. /d. at 420.

14

To base the punitive damages award on Craig’s dissim-

ilar acts to any degree creates the possibility that he will

be punished multiple times for the same conduct. Such a

result violates due process and renders the punitive dam-

ages award unconstitutional. /d. at 423 (citing to Gore,

517 U.S. at 593 (Breyer, J. concurring)).

Indeed, of the five factors pertaining to the repre-

hensibility of a defendant's conduct, only two were pre-

sent in this case. Admittedly, Craig caused physical

harm to the plaintiff and his conduct evinced an indif-

ference to or a reckless disregard of the safety of others.

But the plaintiff was not financially vulnerable, Craig's

conduct was an isolated incident, and the harm was not

the result of intentional malice, trickery, or deceit;

instead it was a mere accident.

The Court of Appeals’ holding that Craig's conduct

was sufficiently reprehensible to warrant punitive dam-

ages stands in sharp contrast to the Vermont Supreme

Court's recent decision in Bolsta v. Johnson, No. 2003-

004, 2004 WL 444649 (Vt. March 4, 2004). In Bolsta,

the defendant, who had a suspended license from a prior

DUI conviction, caused a traffic accident while having

a blood alcohol content of 0.156. Yet the Court held that

the defendant's conduct, which it characterized as neg-

ligent or reckless, was insufficient to support a finding

of actual malice as is required for the imposition of

punitive damages.

Here, Craig caused an accident while driving under

the influence, but unlike the defendant in Bolsta, he did

not have a history of driving while under the influence

nor was his license suspended from a prior DUI con-

viction. Nevertheless, the Court in Bolsta determined

that the defendant could not be subjected to punitive

damages while the Georgia Court of Appeals in this case

concluded that Craig’s conduct was sufficiently repre-

15

hensible to warrant a punitive damages award that was

22.7 times the amount of compensatory damages. Such

inconsistent determinations of what conduct is suffi-

ciently reprehensible to warrant punitive damages evi-

dences a split among state courts necessitating a review

by this Court.

CONCLUSION

As Presiding Judge Andrews explained in his dissent:

“[i]n this case, of the three guideposts set out by Gore,

the last two are not met, and only two of the five factors

to be considered are present in the first one. Accord-

ingly, the punitive damages awarded in this case were

excessive and the judgment should be reversed.” Craig,

590 S.E.2d at 749; App., infra, 14a (Andrews, P.J., con-

curring in part and dissenting in part). The decision of

the Georgia Court of Appeals in this case directly con-

flicts with this Court's decisions in Gore and State Farm

and the petition for a writ of certiorari should be

granted.

Respectfully submitted,

JAMES T. BUDD

Counsel of Record

MABRY & MCCLELLAND LLP

2200 Century Parkway, N.E.

10th Floor

Atlanta, Georgia 30345

(404) 325-4800

Counsel for Petitioner