Reply Brief — Craig v. Holsey

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No. 03-1701

Supreme Court of the United States

So El

RODNEY LEROY CRAIG,

Petitioner,

TAMIKA HOLSEY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

REPLY BRIEF IN SUPPORT OF CRAIG’S

PETITION FOR A 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

RULE 29.6 STATEMENT

No corporation is a party to this action. Petitioner

Craig is insured by Infinity Insurance Company.

TABLE OF CONTENTS

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THE GEORGIA COURT OF APPEALS’

RULING UPHOLDING THE PUNITIVE

DAMAGES AWARD DIRECTLY

CONFLICTS WITH THIS COURT’S

DECISIONS IN GORE AND STATE

A. The Punitive Damages Award is

Presumptively Unconstitutional

Because Of The 22.7-to-1 Ratio

Of Punitive to Compensatory

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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

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C. The Georgia Court Of Appeals’

Justification Of The Punitive

Damages Award By Reference

To Dissimilar Conduct Conflicts

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TABLE OF AUTHORITIES

Cases: PAGE

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

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

No. 981564, 2004 WL 869188 (Utah

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

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

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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 Presumptively

Unconstitutional Because Of The 22.7-to-1 Ratio

Of Punitive To Compensatory Damages

This Court’s decision in State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408 (2003), makes clear that

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

in this case is unconstitutionally excessive. Contrary to

Holsey’s assertion, Petitioner Craig does not argue that

punitive damages awards exceeding compensatory dam-

ages by a 9-to-1 ratio are per se unconstitutional.

Instead, the award in this case is unconstitutional

because “in practice, few awards exceeding a single-

digit ratio between punitive and compensatory damages,

to a significant degree, will satisfy due process,” and

this case is not one of the few cases necessitating a

departure from the single-digit ratio benchmark set by

this Court. State Farm, 538 U.S. at 424-425.

To attempt to overcome this vulnerability, Holsey

argues that the facts of this case are “extraordinary” and

that Craig’s conduct was “unique.” (Respondent’s Brief

in Opposition at p. 8). This argument is patently defec-

tive and without merit. Although all punitive damages

cases arguably involve egregious conduct, Craig’s act of

driving under the influence was not undertaken with any

ill will, sinister motive, or malice. Therefore, this case

is no different from any other case involving a defendant

driving under the influence and is in no way “unique” or

“extraordinary” in comparison to other punitive damages

cases.

If this Court were to deny Craig’s Petition, and accept

Holsey’s argument, it would mean that any accident

involving a defendant driving under the influence would

be free of the due process limitations on punitive dam-

ages awards as set forth in BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996). Such an exception is clearly

incompatible with this Court’s holding that “few” cases

can exceed the single-digit ratio benchmark while sat-

isfying due process and that a defendant’s conduct must

be “particularly egregious” in order to do so. State Farm,

538 U.S. at 424-425. Indeed, many cases involving driv-

ing under the influence would then constitutionally

exceed the single-digit ratio benchmark if Holsey’s posi-

tion is accepted. ;

Holsey is also mistaken when she asserts that the only

basis for the argument that the 22.7-to-1 ratio in this

case is unconstitutionally excessive is a single sentence

from this Court’s opinion in State Farm. In fact, this

Court has on multiple occasions stressed that “an award

of more than four times the amount of compensatory

damages might be close to the line of constitutional

impropriety” and that “[s]Jingle-digit multipliers are

more likely to comport with due process.” Id. 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).

Despite Holsey’s attempt to downplay it, courts have

inconsistently applied this Court’s decisions on punitive

damages as is illustrated by a comparison of the Court

Appeals’ decision here with the Supreme Court of Utah’s

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

No. 981564, 2004 WL 869188 (Utah Apr. 23, 2004). In

Campbell, the Supreme Court of Utah noted that this

Court “strongly implied” that single digit ratios mark the

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

Court applied a 9-to-1 ratio between compensatory and

punitive damages and, thus, reduced the punitive dam-

ages 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-1 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 the

appellate courts of Georgia and Utah evidences a split

among State courts necessitating certiorari in this case.

In sum, the ratio in this case does not come close to

the single-digit ratios that have traditionally satisfied

due process. Instead, the plaintiff was awarded punitive

damages that were over twenty-two times the compen-

satory damages awarded under circumstances that are no

more egregious than any other case involving punitive.

damages. Thus, the court below did not ensure that the

measure of punishment was both reasonable and pro-

portionate to the amount of harm to the plaintiff and to

the amount of compensatory damages as is required by

State Farm. 538 U.S. at 425. Accordingly, Craig’s Peti-

tion and plenary review should be granted.

B. The Georgia Court Of Appeals’ Comparison Of

The Punitive Damages Award To Hypothetical

Compensatory Damages, Rather Than The Plain-

tiff’s Actual Compensatory Damages, Conflicts

With State Farm

As is fully set forth in Craig’s Petition for a Writ of

Certiorari, the court below never compared the actual

compensatory damages to the punitive damages award as

is required by the second Gore guidepost, nor did it

—

address this Court’s recognition that “few awards

exceeding a single-digit ratio between punitive and com-

pensatory damages, to a significant degree, will satisfy

due process.” State Farm, 538 U.S. at 425.

Instead, the court below justified the punitive damages

award by hypothesizing that the plaintiff could have died

as a result of the accident, when in actuality Holsey sus-

tained minor neck and back injuries that had nearly

resolved prior to trial. The court then compared hypo-

thetical wrongful death damages awards to the actual

punitive damages awarded to rationalize that there was

no disparity between the two awards. Craig v. Holsey,

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

In her Brief in Opposition, Holsey concedes that the

second Gore guidepost requires review of the actual

harm caused by the defendant. (Respondent’s Brief in

Opposition at p. 14). Yet Holsey ignores that the court

below conducted no such review and erroneously argues

that certiorari is not necessary because Craig’s conduct

“could have killed or maimed anyone unlucky enough to

find themselves in his path.” (Respondent’s Brief in

Opposition at p. 14).

The comparison of hypothetical damages to the puni-

tive Ca,aages award is in direct conflict with Gore and

its progeny because the court below never applied the

second Gore guidepost which requires a comparison of

the actual harm to the plaintiff and the punitive damages

award. Gore, 517 U.S. at 582. Just as due process does

not permit courts to adjudicate the merits of hypotheti-

cal claims under the Gore reprehensibility 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.

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The notion that hypothetical injuries and damages can

be used to satisfy the second Gore guidepost, without

any consideration of the actual harm to the plaintiff, is

fundamentally flawed and erroneous. Accordingly,

Craig’s Petition for a Writ of certiorari should be granted

to correct the Court of Appeals’ misinterpretation of

Gore and State Farm.

C. The Georgia Court Of Appeals’ Justification Of

The Punitive Damages Award By Reference To

Dissimilar Conduct Conflicts With State Farm

Despite Holsey’s statements to the contrary, Craig

does not contest that his actions were blameworthy. But

the degree of reprehensibility in this case was not com-

mensurate with the punitive damages awarded and it is

clear that the court below impermissibly relied upon

Craig’s dissimilar acts to bolster its reprehensibility

analysis.

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 and fur-

ther considered the details surrounding Craig’s arrest in

1996 and subsequent conviction for possession of a con-

trolled substance in Arkansas.

In her Brief in Opposition, Holsey also relies heavily

on dissimilar acts to support her contention that the Gore

reprehensibility guidepost has been satisfied and that

certiorari is not required. Holsey offers support for her

argument that Craig’s conduct was sufficiently repre-

hensible by stating that Craig was already on probation

for a crack cocaine charge; Craig was an habitual sub-

Stance user; Craig had previously driven under the influ-

ence of both drugs and alcohol prior to this accident; and

Craig continued to use drugs after being criminally sanc-

tioned for his conduct in this case. (Respondent’s Brief

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in Opposition at pp. 3, 9, 11). Yet, none of these accu-

sations are related to the accident in question.

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State Farm makes clear that the reliance of the Geor-

gia Court of Appeals and Holsey on Craig’s dissimilar

acts on other occasions cannot support the punitive dam-

age award. As is fully discussed in Craig’s Petition, it is

well-established that “[a] defendant’s dissimilar acts,

independent from the acts upon which liability was

premised, may not serve as the basis for punitive dam-

ages.” State Farm, 538 U.S. at 422. Accordingly, “[a]

defendant should be punished for the conduct that

harmed the plaintiff, not for being an unsavory individ-

ual or business.” Jd. at 423.

It was the act of driving while under the influence on

the date of the accident, not Craig’s conviction for pos-

session of a controlled substance, which injured the

plaintiff. In his dissent, Presiding Judge Andrews of the

Georgia Court of Appeals recognized that “this was an

isolated incident” and that “Craig had no previous

arrests for DUI.” Craig, 590 S.E.2d at 749; App. at 13a

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

part). Just as in State Farm, there is scant evidence here

of repeated misconduct of the sort that injured the plain-

tiff. State Farm, 538 U.S. at 423.

Furthermore, Holsey erroneously argues that because

there is no cap on punitive damages in the State of

Georgia when the defendant acted under the influence

of alcohol or drugs, there is support for the punitive

damages award. While there is no cap on punitive dam-

ages in such cases, this does not alter the fact that

grossly excessive punitive damages awards are imper- ;

missible because they violate the Due Process Clause of

the Fourteenth Amendment. Therefore, the issue of

whether or not Georgia legislatively caps punitive dam-

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ages is irrelevant because the punitive award here is

unconstitutional.

CONCLUSION

Certiorari is warranted in this case because “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 dam-

ages awarded in this case were excessive and the judg-

ment should be reversed.” Craig, 590 S.E.2d at 749;

App. at 14a (Andrews, P.J., concurring in part and dis-

senting in part). In particular, the Court of Appeals’ fail-

ure to compare the actual harm to the plaintiff with the

punitive damages award, as is required by Gore, makes

it imperative that this Court grant certiorari. For these

reasons, the decision of the Georgia Court of Appeals

directly conflicts with this Court’s decisions in Gore and

State Farm and the Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,