Case Information
*1 Before WOLLMAN, Chief Judge, and MORRIS SHEPPARD ARNOLD and
MURPHY, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Vicki Grabinski sued the defendants, claiming that they violated the Missouri
Merchandising Practices Act, Mo. Ann. Stat. §§ 407.010-407.025, § 407.120, and
acted fraudulently when they sold her an automobile that had been damaged in a
collision (the three individual defendants are employees of the retailer, which, despite
the inclusion of "wholesale" in its name, is the entity that sold the car to Ms. Grabinski;
*2
the actual wholesaler, which sold the car to the retailer, merely uses "sales" in its
name). This case was before us previously,
see Grabinski v. Blue Springs Ford Sales,
Inc.
,
I.
Wе turn first to the defendants' assertion that the punitive damages awards were
unconstitutionally excessive. In
BMW of North America, Inc. v. Gore
,
The jury in this case awarded Ms. Grabinski actual damages in the amount of $5,300 against the retailer and its three employees jointly and severally for concealing the wreck damage. It also awarded her actual damages in the amount of $2,535 against all of the defendants jointly and severally for other concealed defects. Finally, the jury recommended, and the trial court awarded, punitive damages in the amount of $100,000 against the retailer, $50,000 against the wholesaler, and $30,000 against Don Isom, $20,000 against Bob Dudley, and $10,000 against Fred Graham (these last three being the employees).
Calculating thе relevant ratios in cases where the defendants are jointly and severally liable is a matter of some difficulty, because it is not always possible to determine what each defendant will ultimately pay in comрensatory damages. Ms. Grabinski urges us to divide each individual punitive damages award by the entire actual damages award. This method assumes an impossibility, however, because it posits that each defendant will ultimately рay the full compensatory damages award.
We believe, instead, that the more appropriate way of calculating the ratios is to
divide the individual punitive damages awards by the individual
pro rata
shares of the
aсtual damages. Our method is preferable, we think, because the constitutionality of
a punitive damages award against a particular defendant depends partly on the amount
of actual damages payable by that defendant. The individual ratios so calculated are
approximately 99:1 for the wholesaler, 55:1 for the retailer, 16:1 for Mr. Isom, 11:1 for
Mr. Dudley, and 5:1 for Mr. Graham. The ratio of the collective punitive damages to
the collective actual damages is approximately 27:1. While these ratios are somewhat
high,
Gore
emphasizes that such ratios are not dispositive but merely instructive.
See
generally United States v. Big D Enterprises, Inc.
,
The second
Gore
consideration involves a comparison of the punitive damages
award and the civil or criminal penalties that may be imposed for comparable
misconduct, because "a reviewing court engaged in determining whether an award of
punitive damages is excessive should 'accord "substantial deference" to legislative
judgments concerning appropriate sanctions for the conduct at issue.' "
Gore
, 517 U.S.
at 583, quoting
Browning-Ferris Industries v. Kelco Disposal, Inc.
,
Of the three considerations that
Gore
identifies as relevant to determining the
constitutionality of awards of punitive damages, the reprehensibility of the defendant's
conduct is generally givеn the greatest emphasis.
See Gore
,
The trial court, after a careful application of the principles outlined in Gore , ruled that "while the punitive damages award was 'generous' as to the various defendants, it was far from 'grossly excessive' as to any of them." We think, for the reasons indicаted, that there is ample support in the record for this finding and therefore affirm the trial court on this issue.
II.
We turn now to Ms. Grabinski's claim that the trial court erred when it refused
to grant her request for roughly $125,000 in attorney's fees. In a diversity сase such as
this, absent a conflict with a federal statute or court rule, we apply state law concerning
the availability of attorney's fees.
See generally Lamb Engineering and Construction
Co. v. Nebraska Publiс Power District
,
The defendants maintain that Carpenter v. Discount Motors, Inc., 652 S.W.2d 716 (Mo. Ct. App. 1983), providеs the appropriate guidance here. The discussion of attorney's fees in that case, however, id. at 717-18, was part of a cursory alternative holding that approached dictum , and the appellate court's main ruling was that the trial court lacked subject-matter jurisdiction, id. at 718. We find, moreover, that the more recent Missouri Supreme Court decision in O'Brien v. B.L.C. Insurance Co. , 768 S.W.2d 64 (Mo. 1989) ( en banc ), is controlling on the issue of when attorney's fees should be awarded under Mo. Ann. Stat. § 407.025.1.
Although
O'Brien
involved the attorney's fees provision of a different statute
from the one applicable here, namely, Mo. Ann. Stat. § 407.545.1 (West 1979,
repealed 1989), we nevertheless think that
O'Brien
is apposite authority. The relevant
statute in
O'Brien
provided that "[a]ny person who, with intent to defraud, violates any
of the provisions of [certain statutes]
shall be liable
... in the case of any successful
action to enforce the liability ... [for] reasonable attorney fees" (emphasis supplied).
That statute, as the trial court in our case pointed out, appeared to mandate attorney's
fees in successful actions. But the
O'Brien
court never alluded to that fact in deciding
the case; instead, it relied on certain Unitеd States Supreme Court cases interpreting
*6
42 U.S.C. § 1988(b) in deciding whether and under what circumstances an award of
attorney's fees is appropriate.
See O'Brien
,
We think that it is important to note that the wording of 42 U.S.C. § 1988(b) is identical in every mаterial respect to that of Mo. Ann. Stat. § 407.025.1, the statute applicable in our case: The federal statute provides that "the court, in its discretion, may allow the prevailing party ... a reasonable attornеy's fee," and the Missouri statute provides that "[t]he court ... may award to the prevailing party attorney's fees, based on the amount of time reasonably expended." Since the Missouri Supreme Court in O'Brien used federal cases to determine when fees are due under a state statute that evidently mandated an award of fees, we think that there is even more reason to expect that it would use such cases when deciding an аttorney's fees award under a statute with discretionary language virtually identical to that contained in § 1988(b). We therefore conclude that cases involving § 1988(b) provide the appropriate guidance in § 407.025.1 attornеy's fees cases.
We also conclude that the trial court abused its discretion when it denied
Ms. Grabinski attorney's fees simply because it felt that the punitive damages award
was "generous" and because it did not want tо " 'pad' the punitive damage award with
a fee award in this case." The Supreme Court has emphasized that the results that a
plaintiff achieves are a critical consideration in deciding whether to award attorney's
fees.
See
,
e.g.
,
Hensley v. Eckerhart
, 461 U.S. 424, 436 (1983), a case that the
Missouri Supreme Court relied on in
O'Brien
, 768 S.W.2d at 71. Ms. Grabinski
enjoyed very significant success in this litigation. Awarding attorney's fees to
successful plaintiffs is indeed the rule rather than the exception.
See generally Moore
v. City of Park Hills
,
III.
For the reasons indicated, we affirm the trial court's punitive damages award and
reverse the trial court's denial of Ms. Grabinski's motion for attorney's fees. We
remand the case to the trial court with directions to award Ms. Grabinski a "fully
compеnsatory fee,"
Hensley
,
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.