# Petition for Writ of Certiorari — Craig v. Holsey

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1809%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 820

## Text

Guprenie COLl, U-
FILE®B

Q5170 1 JUN 23 2004

Supreme Court of the Anited States

ie <i pe Be

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
IC ihivgi tue cabGetavevecdevaceasendaws

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
RPT svi deus o4anescatseaeeeseteneeeiaes

PAGE

15

la

2a

|
i
’
;

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

PEM CR net

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1809%3A1. Public record. Not legal advice.