LURI, Appellee, v. REPUBLIC SERVICES, INC. et al., Appellants.
No. 94908
Court of Appeals of Ohio, Eighth District, Cuyahoga County
Decided May 19, 2011
193 Ohio App.3d 682, 2011-Ohio-2389
Squire, Sanders & Dempsey, L.L.P., Stephen P. Anway, and Robin G. Weaver, for appellants.
FRANK D. CELEBREZZE JR., Judge.
{¶ 1} Appellants, Republic Services, Inc. (“Republic“), Republic Services of Ohio I, L.L.C. (“Republic Ohio“), Republic Services of Ohio Hauling, L.L.C. (“Ohio Hauling“), James Bowen, and Ronald Krall, appeal from an adverse judgment and the largest retaliatory discharge jury award in Ohio history—over $46 million. We affirm the jury‘s verdict, but remand for imposition of statutory punitive-damage limits.
{¶ 2} Appellee Ronald Luri was employed as the general manager in charge of the Cleveland division of Ohio Hauling. His direct supervisor, Bowen, was employed by Republic Ohio. Luri also reported to Bowen‘s supervisor, Krall, who was employed by Republic.
{¶ 3} According to Luri, sometime in November 2006, Bowen approached him with an action plan that called for, among other things, the termination of three employees. Luri testified that Bowen instructed him to fire Frank Pascuzzi, George Fiser, and Louis Darienzo, Luri‘s three oldest employees. Luri testified that he informed Bowen that Pascuzzi had strong performance evaluations, and terminating him without reason could result in a discrimination lawsuit. He also informed Bowen that Pascuzzi had a medical condition that could result in a
{¶ 4} Thereafter, Luri‘s performance evaluations were worse than in previous years, and Bowen instituted “improvements directives” for Luri to complete, including conducting weekly meetings and providing more information to Bowen. Appellants claim that these directives were not accomplished, and as a result, Luri was terminated on April 27, 2007.
{¶ 5} Luri then filed suit on August 17, 2007, alleging claims of retaliatory discharge under
{¶ 6} Appellants twice moved to bifurcate the trial pursuant to the Ohio Tort Reform Statutory provisions in
Law and Analysis
Bifurcation
{¶ 7} Appellants first argue that the trial court “erred by failing to apply
{¶ 8} In Barnes v. Univ. Hosps. of Cleveland, Cuyahoga App. Nos. 87247, 87285, 87710, 87903, and 87946, 2006-Ohio-6266, 2006 WL 3446244, ¶ 34,
{¶ 9} This determination is further buttressed by this court‘s decision in Havel v. Villa St. Joseph, Cuyahoga App. No. 94677, 2010-Ohio-5251, 2010 WL 4308208,3 in which we held that
{¶ 10} Appellants also argue that their motion was unopposed and therefore should have been granted whether based on
{¶ 11} Barnes found that “[t]he issues surrounding compensatory damages and punitive damages in this case were closely intertwined. [Appellant‘s] request to bifurcate would have resulted in two lengthy proceedings where essentially the same testimony given by the same witnesses would be presented. Knowing that bifurcation would require a tremendous amount of duplicate testimony, the presiding judge determined it was unwarranted.” Id., 2006-Ohio-6266, 2006 WL 3446244, at ¶ 35.
{¶ 12} Here, the malice evidence required for punitive damages was also the evidence used to rebut appellants’ arguments that Luri was terminated for cause. The manufacture of evidence was intertwined in arguments relating to both compensatory and punitive damages. Appellants also argue that the trial court should not have allowed testimony about the financial position of appellants, but it was Krall, while on cross-examination, who introduced this line of questioning without prompting from Luri. Therefore, the trial court did not abuse its discretion in denying appellants’ bifurcation motion.
Application of Other Ohio Tort Reform Provisions
{¶ 13} In their second and third assignments of error, appellants argue that the trial court committed plain error when it failed to apply various provisions of
{¶ 14} We must first determine whether these provisions apply to an action based on
{¶ 15} The Ohio Supreme Court has also noted the types of actions to which
{¶ 16}
{¶ 17} “(1) Evidence of a defendant‘s alleged wrongdoing, misconduct, or guilt;
{¶ 18} “(2) Evidence of the defendant‘s wealth or financial resources;
{¶ 19} “(3) All other evidence that is offered for the purpose of punishing the defendant, rather than offered for a compensatory purpose.”
{¶ 20} Because appellants never requested instructions based on
{¶ 21} Here, appellants collaborated with the court and Luri in crafting the jury instructions given. Several courts of appeals have held that an agreed-upon jury instruction that forms the basis for error on appeal is invited error. See State v. Briscoe, Cuyahoga App. No. 89979, 2008-Ohio-6276, 2008 WL 5084720, ¶ 33 (objection to an agreed jury instruction on appeal constituted invited error,
{¶ 22} Appellants did not submit such a limiting instruction or even mention
{¶ 23} Similarly, appellants’ issue with the failure of the court to provide a jury interrogatory detailing findings on noneconomic damages was invited.7 The invited-error doctrine equally applies here where the jury instructions, verdict forms, and jury interrogatories were approved by appellants without even suggesting the now complained-of error. See Siuda v. Howard, Hamilton App. Nos. C-000656 and C-000687, 2002-Ohio-2292, 2002 WL 946188.
{¶ 24}
{¶ 25} In Faieta v. World Harvest Church, Franklin App. No. 08AP-527, 2008-Ohio-6959, 2008 WL 5423454, ¶ 84-85, the Tenth District Court of Appeals noted that “defendants not only failed to object to the jury interrogatories and verdict forms, they invited the alleged error. Defendants drafted verdict forms and interrogatories and submitted them to the trial court. Like those actually
{¶ 26} In the present case, appellants submitted interrogatories and agreed upon the final versions submitted to the jury. Those interrogatories did not separate past and future economic damages, nor economic and noneconomic damages. Appellants’ failure to raise the issue and their proffering of the relied-upon interrogatories invited the error.
{¶ 27} Appellants never sought the application of Ohio tort-reform provisions during trial, apart from bifurcation. It was only in postverdict motions that appellants asked the trial court for their application. This error on appellants’ part should not serve as the basis for obtaining a new trial when it could have so easily been addressed and corrected if properly raised.
{¶ 28} By failing to request an interrogatory distinguishing noneconomic damages, the trial court could not apply the damages limits set forth in
Punitive-Damage Caps
{¶ 29} Appellants next argue that, when presented with a proper posttrial motion, the trial court “fail[ed] to apply the Ohio Tort Reform provision in
{¶ 30}
{¶ 31} Our holding above, that Ohio tort reform provisions apply to discrimination actions, means that upon proper motion, the trial court was required to limit the award of punitive damages to two times the amount of compensatory damages. In this case, the trial court was not prevented from applying this provision by appellants’ failure to call it to the court‘s attention when it had the ability to address such a request. This is because the trial court could apply the limit without engaging in the type of guessing game required in applying the compensatory-damage provisions. See Srail v. RJF Internatl. Corp. (1998), 126 Ohio App.3d 689, 702, 711 N.E.2d 264. Therefore, the trial court erred in failing to limit the amount of punitive damages to $7 million. Luri argues that the amount of punitive damages should be calculated for each defendant, meaning that each would be subject to punitive damages up to $7 million. While there may be cases where Luri‘s calculation would apply, that is not the case here, where Luri advanced a single-employer theory of liability to impute wrongdoing to multiple business entities in this case. Because Luri can collect at most $3.5 million in compensatory damages, the trial court should have limited the amount of punitive damages to $7 million. Its failure to do so necessitates reversal and remand.
Due Process
{¶ 32} In their fifth assignment of error, appellants argue that the award of $43 million in punitive damages violates their due process rights under the federal and state constitutions.9 While our holding above limits this argument, it does not completely dispose of it.
{¶ 33} In BMW v. Gore (1996), 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, the Supreme Court attempted to outline the permissible bounds of punitive-damage awards under the Due Process Clause of the United States Constitution. It recognized, “Punitive damages may properly be imposed to further a State‘s legitimate interests in punishing unlawful conduct and deterring its repetition. In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State‘s legitimate interests in punishment
{¶ 34} The court set forth three factors it used to analyze the punitive-damages award before it: The reprehensibility of the conduct, the disparity between the harm or potential harm suffered and the amount of the award, and the difference between the award and the civil penalties authorized or imposed in comparable cases. Id. at 575, 116 S.Ct. 1589, 134 L.Ed.2d 809. See also State Farm Mut. Auto. Ins. Co. v. Campbell (2003), 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585. The Ohio Supreme Court has directed this court to apply the Gore factors to independently determine whether an award is excessive. Barnes, 2006-Ohio-6266, 2006 WL 3446244, at ¶ 40.
{¶ 35} Appellants demonstrated reprehensible conduct in this case. After Luri refused to engage in what he thought was discriminatory conduct, Bowen devised a plan to terminate him, fabricated evidence, and submitted this evidence during discovery to justify his actions. Krall then used this fabricated evidence for the same justification. After terminating Luri from a job in a specialized, consolidated industry, appellants refused to waive the noncompete clause in his employment contract, which further hampered Luri‘s ability to support himself and his family. This conduct weighs heavily in favor of a large punitive-damage award and is the most important factor in the Gore analysis. See Gore, 517 U.S. at 575, 116 S.Ct. 1589, 134 L.Ed.2d 809. The trial court also found that this conduct demonstrated a pattern of repeated retaliatory and discriminatory conduct. Nothing in the record demonstrates to this court that this finding was incorrect. From an action plan calling for the termination or demotion of some of appellants’ oldest employees, to fabricating evidence in an attempt to justify Luri‘s termination, there is evidence in the record supporting a pattern of conduct justifying substantial punitive damages.
{¶ 36} The harm suffered by Luri was also significant in this case. Appellants would have this court determine that a ratio of compensatory to punitive damages of one-to-one is appropriate in this case because the harm was economic, and Luri was a well-paid executive who was not economically vulnerable. While Luri did earn a substantial salary, as the trial court noted, citing Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 715 N.E.2d 546, a “punitive damages award is more about a defendant‘s behavior than the plaintiff‘s loss.”
{¶ 37} Here, comparable jury verdicts imposed where a pattern of persistent conduct was shown demonstrate that a two-to-one ratio is not beyond the bounds of due process. Merrick v. Paul Revere Life Ins. Co. (D.Nev.2008), 594 F.Supp.2d 1168, 1190; Burns v. Prudential Secs., Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d 621. This court has also upheld a five-to-one ratio in
{¶ 38} In this case, appellants’ behavior speaks to an award of punitive damages in the full amount authorized by the legislature. On remand, the trial court should feel free to enter an amount of punitive damages up to the bounds imposed by
Prejudgment Interest
{¶ 39} Appellants finally argue that the trial court erred in awarding prejudgment interest on the full amount of compensatory damages when that amount included pay Luri would not have yet earned, or “future damages.”10
{¶ 40}
{¶ 41} This statute encourages the “settlement of meritorious claims, and the compensation of a successful party for losses suffered as the result of the failure of an opposing party to exercise good faith in negotiating a settlement.” Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d 143, 147, 679 N.E.2d 1119. “Therefore, an injured party in a tort action is, under appropriate circumstances, entitled to recover interest from the date the cause of action accrues.” Andre v. Case Design, Inc., 154 Ohio App.3d 323, 2003-Ohio-4960, 797 N.E.2d 132, ¶ 7.
{¶ 42} Appellants did not request that the jury parse the amount of compensatory damages into any categories. As with the application of provisions of Ohio‘s tort-reform statutes, appellants invited this error by submitting instructions and interrogatories that did not separate out future damages. Appellants’ error will not induce this court “to speculate concerning the specifics of the jury‘s award.” Srail, 126 Ohio App.3d at 702, 711 N.E.2d 264. This assignment of error is overruled.
{¶ 43} Appellants caused a great many of the supposed errors complained of in this case, which should not result in reversal. However, on proper motion, the trial court should have applied the damages caps set forth in
{¶ 44} This cause is affirmed in part and reversed in part, and the cause is remanded to the lower court for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
GALLAGHER, J., concurs.
KILBANE, A.J., concurs in part and dissents in part.
KILBANE, Administrative Judge, concurs in part and dissents in part.
{¶ 45} I respectfully dissent from the majority‘s determination that the trial court should have limited the amount of punitive damages to $7 million. I would conclude that plaintiff is entitled to $7 million in punitive damages from each defendant rather than $7 million in total punitive damages.
{¶ 46}
(2) Except as provided in division (D)(6) of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action:
(a) The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section.
{¶ 47} The defendants maintain that because the trial court determined that they were jointly and severally liable to Luri in the amount of $3.5 million, this is the amount “awarded to the plaintiff.” Therefore, defendants claim that plaintiff‘s recovery of punitive damages is limited to two times this amount or a total of $7 million in punitive damages. This interpretation omits key terms of the statute, however, which calculates the punitive damages as “two times the amount of the compensatory damages awarded to the plaintiff from that defendant.” (Emphasis added.) Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420 (“The statute limits punitive damages in tort actions to a maximum of two times the total amount of compensatory damages awarded to a plaintiff per defendant“). The determination of joint and several liability does not alter this analysis, as plaintiff has been awarded compensatory damages