*1 voluntary pay- employer’s last from the ENERGY, HILL SAND benefits, from the date not
ment of income Appellant, INC., voluntary pay employer refuses case where This was benefits. false lulled into a sense claimant was SMITH, of the Administratrix Brenda voluntary in- security by payment Tommy Smith; and Ford Estate of where Nor was it come benefits. Company, Appellees, Motor delay of such duration employer’s of notice from deprived her re- time
Department while reasonable Smith, Administratrix Brenda to file claim. mained which Smith, Tommy Estate Appellant, Sep- injury claimant’s occurred The she 1999. She testified tember in No- letter Department’s received the Inc.; Energy, and Ford Hill Sand
vember, her It informed Company, Appellees, claim; that she employer denied application for benefits required to file an Company; Mid-East medical required disabled or Ford Motor she was Inc., Mercury, Appellants,
treatment; limita- period and that the doing years tions so was two after Yet, she failed injury date occurred. Smith, Administratrix Brenda September application her until file Tommy Smith; and Sand Estate period expired. Un- two-year after Inc., Appellees. Energy, Hill circumstances, not persuad- der 2000-SC-0444-DG, 1999-SC- No. equitable application ed that 1028-DG, 1999-SC-1029-DG. ALJ compelled or that remedy was rejecting argument the claimant’s erred Kentucky. Supreme Court dismissing the claim. 26, 2004. Aug. of Appeals decision of the Court affirmed.
All concur. *2 Harris, Manchester,
Clint Counsel for Energy, Sand Hill Inc. Lee,
Rickey Bailey, Mary D. R. Latta Madden, Manchester, Scott Ned Milten- berg, Litigation, Center for Constitutional P.C., D.C., Collins, Washington, Roy Glenn Manchester, McKinnley Morgan, Sharon Allen, McKee, K. Counsel for Brenda Brown, Smith, Todd & Bridget Papalia, H. of the Estate of Administratrix Louisville, Counsel Amicus Heyburn, Tommy Smith. Curiae, Kentucky and Gas Association. Oil Brooks, Rogovin, Brian P. Jona- A. John *3 Hacker, III, Dellinger, D. E. than Walter of the Court Justice Opinion Shores, Myers, O’Melveny & Matthew M. KELLER. D.C., B. Sal-
Washington,
Thompson,
Todd
INTRODUCTION, PROCEDURAL
I.
Keal,
Stevens, R. Thaddeus
lie Jacobs
BACKGROUND, AND ISSUE
P.L.C.,
&
Thompson,
Simpson,
Miller
Sullivan,
Louisville, Amy
Arling-
Crosland
decision
Sand Hill
plurality
In a 4-3
VA,
ton,
Compa-
Company,1
Energy,
Counsel for Ford Motor
Inc. v. Ford Motor
of the
reversed
decision
ny.
this Court
a mil-
and reinstated
Appeals
Court
$3
Brooks,
Rogovin,
John A.
Brian P.
compensatory
lion
award and
million
$15
D.C.,
Washington,
O’Melveny Meyers,
&
dam-
punitive
original
million
$20
Thompson, Thompson,
B. Todd
Miller & ages
death action.
wrongful
award
Louisville,
Simpson,
Amy Crosland Sulli-
final, Ford Mo-
When Sand Hill I became
van,
VA,
for
Arlington,
Counsel Mid-East
(“Ford”)
petition
tor
filed a
Company
Mercury,
Ford
Inc.
of certiorari before the United
writ
Court, arguing that
Supreme
States
Snell,
Virginia
Wyatt,
Hamilton
Tarrant
punitive damages
million
award
$15
Combs, Louisville,
May-
M. Tager,
<&
Evan
petition
Ford’s
While
unconstitutional.
Platt,
D.C.,
er,
Washington,
&
Brown
Supreme
pending, the United States
Jr.,
Young,
Liability
F.
Hugh
Product
Ad-
Insur-
State Farm Mutual
Court decided
Council, Inc., Reston, VA,
visory
Jay C.
in which it invali-
Campbell,2
ance Co. v.
Johnson,
Maw,
Brown,
Mayer,
Rowe &
million punitive
dated a $145
Conrad,
Robin S.
National Chamber Liti-
involving
faith
bad
a Utah
Center,
Inc.,
D.C.,
gation
Washington,
of an insurance
and fraud
context
Curiae,
Counsel for Amicus
Product Lia-
Thereafter, the United States
settlement.
Council,
bility Advisory
Inc.
petition
granted Ford’s
Supreme Court
Brown,
I,
Bridget
Papalia,
certiorari,
H.
Todd &
Hill
vacated Sand
Louisville,
Sorett,
Heyburn,
Henry P.
matter to this Court “for
remanded the
Cynthia
Craig, Brickley,
D.
Sears & Sor-
State
fight of’
further consideration
MA,
ett, Boston,
petition
for Amicus Curi-
for certio-
Counsel
Farm. Because Ford’s
Resources,
ae,
constitutionality of
Equitable
only
Inc.
rari
addressed
award,
has
Brown,
Bridget
Papalia,
H.
Todd &
compensa-
paid the full value of the
since
Louisville,
Sorett,
Henry
Heyburn,
P.
award,
to-
tory damages
with interest —a
Brickley,
D.
Sears & Sor-
Cynthia
Craig,
$5,596,425.00
par-
tal amount of
—and
MA,
ett, Boston,
for Amicus Curi-
Counsel
remaining
agree that
issue
ties
ae,
Company.
Equitable Production
viability
$20
before the Court
punitive damages award.
million
Brown, Todd
Bridget
Papalia,
H.
&
Louisville,
the evi-
reviewing
Farm and
Heyburn,
Counsel for Amicus
After
con-
Curiae,
out-of-state
Kentucky.
dence of the defendant’s
Associated Industries
L.Ed.2d
S.Ct.
Hill
2. 538 U.S.
["Sand
I"].
excessive
II. ANALYSIS
held that the
*4
damages award in State Farm violated the
A. STATE FARM AND
Due Process Clause of the Fourteenth
EXTRATERRITORIALITY
Amendment as it
grossly
excessive
Farm,
In State
plaintiffs pursued
particular
and expressed
concern over the
punitive
damages
their
claim
bad faith
evidence
State Farm’s out-of-state/ex
on the
company
basis that the insurance
traterritorial conduct:
employed a
to cap payouts
scheme
on the
may
Lawful out-of-state
pro-
conduct
be
company’s
prove
claims. To
this scheme
when it
bative
demonstrates the deliber-
plaintiffs
presented testimony about
and culpability
ateness
of the defen-
State Farm’s fraudulent practices occur-
dant’s action in
where
the state
it is
ring nationwide. The trial court deter-
tortious, but that
conduct
have a
mined that such evidence was admissible
to the specific
nexus
harm suffered
for the determination of whether State
instructed,
A
plaintiff.
jury must be
Farm’s conduct was reprehensible. After
furthermore,
it
not use evi-
deliberation,
jury
returned a
punish
dence
out-of-state
conduct
damages
against
award
million
$145
defendant for action
lawful
State Farm.
jurisdiction
where it occurred.8
(“Su
The
Supreme
United States
Court
Court”)
preme
granted
peti
Supreme
State Farm’s
opinion,
Court’s
the con-
certiorari,
tion for
reversed the decision of
upon
duct
which the
Supreme
Utah,
Court
which had
award was based bore no relation to the
award,
harm,
plaintiffs’
reinstated
which resulted in the
and remanded the case
pro
for further
[being]
platform
“case ...
used as
ceedings
regard
with
damages.
expose,
punish,
the perceived deficien-
Citing
previous
Cooper
its
decisions
In
operations
cies of State Farm’s
throughout
dustries, Inc. v. Leatherman
Group,
country,”9
Tool
being
instead of
used to
America,
North
Inc.
BMW
State
condemn
Farm for its conduct to-
Inc.3
Carp.
plaintiffs.
TXO Production
v. Alliance wards the
Gore4
424,
1678,
3. 532 U.S.
Camp-
S.Ct.
149 L.Ed.2d
7.
Farm
State
Mutual
Co. v.
Insurance
(2001).
bell,
408, 412,
1513,
1517,
123 S.Ct.
—585,
(2003).
155 L.Ed.2d
1589,
4. 517 U.S.
116 S.Ct.
134 L.Ed.2d
(1996).
422-423,
8.
at
538 U.S.
123 S.Ct.
5. 509 U.S.
113 S.Ct.
L.Ed.2d
(1993).
9.
The regarding extraterrito- position its sented was unreasonable tive court via its four riality to the trial fur- the case for irrational remanded instruc- damage proposed punitive page instruc- appropriate with proceedings ther tion. tions. Su- the United States remand from On IN AND
B. EVIDENCE ARGUMENT Court, Brief Supplemental Ford’s preme THE RECORD CONCERNING the over- comments passing contains FORD’S EXTRATERRITORIAL puni- inadequacy of all constitutional CONDUCT However, the damages instructions. in Similar to what occurred pursues that Ford instructional error Farm, Hill considered Sand concerns the support of relief na on a Company’s jury that to instruct the court’s failure arriving scale in at the tionwide out- Ford for its conduct punish could not damages award of million. Kentucky. $20 side Commonwealth *5 number of testimony regarding the heard in its earli- argument made Ford this same that sold nationwide contained vehicles damages The brief case. er (6.5-7 million), transmission “defective” to the gave trial court instruction that the of simi reports the number of nationwide follows: jury provided as from incidents lar of inadvertent shifts found for the Estate You have (by 1980 the count was “park” “reverse” Com- Tommy against Smith Ford Motor 23,000), and the number of individuals who the Estate and that pany determined by killed such incidents nationwide were money or sums of to a sum was entitled (hundreds). ad plaintiff Counsel damages. you If compensatory closing in have to vised that “we from the evidence further satisfied pay” proceeded make them and to discuss toward Company acted Ford Motor the number of “defective” Ford transmis malice, you may Tommy Smith with clear that were “on the road.” It is sions damages discretion award your punish encouraged in addi- against Company Ford Motor throughout for its the coun Ford conduct already damages you have tion to the try. mal- prove must plaintiff The awarded. evidence, convincing and ice with clear analysis set forth applying evidence you may consider the Farm, find that nexus be- phase of this troduced in the first specific and the harm tween conduct this trial. phase as well the second Hill is from plaintiff in Sand evident used in this instruction: As a similar fact that the incidents were of jury may (a) evaluate While the which nature. malice means either conduct Ford’s cul- determining incidents in Ford Motor by those intended specifically is intangible trial on the amount pability, tangible new Company to cause required since injury plaintiff limitations contained no jury instructions (b) out is carried punishment. on extraterritorial a fla- Company both with Ford Motor rights indifference
grant C. PRESERVATION subjective awareness and with plaintiff in human will result that such conduct that this Court important question One bodily death or harm. remanding the case answer before you If punitive damages ry de- would arise from Ford’s miscon- thereof, termining the amount you duct in designing system; should consider the following factors. (b) degree awareness, of Ford’s any, injury, of that likelihood of
(a) The likelihood at the relevant time motivation; its that serious harm would arise from Ford (c) misconduct; profitability Company’s misconduct to Ford; (b) degree of Ford Motor Com- (d) the duration of Ford’s misconduct pany’s likelihood; awareness of that attempted and whether it to conceal (c) The profitability of the misconduct misconduct; such Company; to Ford Motor (e) any actions Ford to remedy the (d) The duration of the misconduct misconduct, once it became known to any concealment of it Ford Mo- Ford. tor Company; You must remember that the purpose (e) Any actions Ford Motor Com- is not to award the pany remedy the misconduct once it windfall, Tommy Estate of Smith a but became known to Ford Motor Company. punish Ford for its misconduct and to trial, day On the final Ford tendered deter Ford and others from similar con to the trial court a seventeen page Society duct the future. would be document captioned “Punitive Damages by, award, harmed must not by Defendant, Instructions Tendered larger amount *6 (2) Company,” which contained two than what accomplish is needed to proposed punitive damages instructions. purpose.6 You punitive must not award page The first of explained the document damages for purpose. other You that Proposed Instruction A addressed only must you award the amount that liability punitive Ford’s for damages and find, by evidence, convincing clear and is Proposed B Instruction addressed how the necessary impose appropriate punish jury should determine the amount of puni- ment and wrongful deterrence for the damages. Two versions of each of you conduct that find to have occurred the instructions were included: a “court in this case. copy” that included citations to relevant Ordinarily, it constitutes sufficient copy” authorities followed a “clean for punishment deprive and deterrence to jury. submission to the page The four corporate monetary defendant of the “court copy” of Ford’s Proposed Instruc- gain wrongful realized from the conduct tion B stated: Therefore, you of its employees.7 de you If punitive determine that dam- punitive damages cide to award in this ages Ford, against should be awarded case, you may the maximum amount you then shall assess the sum of the money award is the amount of saved punitive damages. In determining the not utilizing the alternative de punitive damages amount of to be as- signs proposed by plaintiff in similar sessed, you should consider the follow- Kentucky, vehicles sold in less the ing factors: you amount of compensatory damages (a)the have awarded.8 likelihood, at the time Ford de-
signed the automatic
determining
transmission
In
of
amount
system for the
pickup
damages
necessary
punish
F-250
truck
for
case,
deterrence,
inju-
involved in this
you may
serious
ment and
consider
has,
be awarded
convincing evidence should
wrongful
Ford’s
conduct that
damages.
had,
impact
the citizens
or has
on
any pu
Kentucky.
You
not award
Mut.
Authorities:
General
Life
Pacific
pun
for
purpose
nitive
1, 111 S.Ct.
Haslip,
Ins. Co.
of vehi
ishing Ford relative to
sale
(1991);
Miller’s
ages also 499 U.S. 111 S.Ct. Haslip, misconduct, deterring the neces- without Wheeler, (1991); E. L.Ed.2d Malcolm damages. sity awarding punitive (A Law Proposal Further Common for Therefore, determining the amount Punitive Development the Use damages necessary appro- for Liability Product Damages Modem deterrence, you punishment and priate 919, 947 40 Ala. L.Rev. Litigation), and de- punishment must consider the mone-
terrent effect associated with entirely liability is corporation’s 7 A the com- tary paid Ford for wrong- predicated vicarious pensatory alone.10 See, doing employees agents. of its determining In the amount of Law Commissioners’ e.g., Uniform the most factor to damages, important Act, 6,§ Damages Punitive Model reprehensibility consider (Discussion Draft, April 12at Comments of Ford’s conduct. blameworthiness 1996) (“Discussion Issues Draft”). Ford’s evaluating reprehensibility will be corporation to when a relating conduct, consider, example, based held liable *7 (1) the extent to which the com- product agents of employees the acts its industry practice, and plied with custom ripe law de- themselves for common are (2) any objective the absence test and of Law velopment. See Commis- Uniform in ad- from which Ford could determine Act, Damages Model sioners’ Punitive transmis- vance whether automatic 1996) 6(c) Draft, (“Ap- (Approval July § under system control defective sion for Draft”) entity liable proval (legal law, Kentucky circum- other wrongful on based by shown the evidence that bear stances wrongful employee only if the acts of determining puni- a amount of proper on officer, di- is committed damages.11 tive rector, au- agent policymaking with wealth, thority). condi- Ford’s size or financial jury’s de- play part tion North generally 8 BMW See of of the amount of termination 559, America, Gore, 116 Inc. 517 U.S. damages that should be awarded.12 (1996); 1589, 134 Uni- L.Ed.2d 809 5.Ct. mind, Puni- Model form Law Commissioner’s these Instructions
With 6(c) Form, Act, § Damages (Approval using the attached Verdict 1996); Draft, Law Insti- July American against that sum of will award Re- tute, Enterprise Reporters’ Study: money, any, you find clear 160 II,
sponsibility Injury, for Personal examining Vol. the tendered instructions for (A (1991); Wheeler, at E. 254 Malcolm approximately fourteen minutes be- Proposal Further Common De- Law he called a fore recess. After the left velopment Dam- courtroom, Use Punitive trial up court took ages Liability Modem Product Liti- concerning scope matter defense (1989). ), 919, gation 40 Ala. L.Rev. 947 testimony witness’s and then asked America, attorneys if 9 there else we “anything BMW North Inc. v. Gore, expedite 517 116 can do to the case we U.S. S.Ct. while (1996). waiting juror on ... L.Ed.2d 809 other than me read damage instructions and 10 See Prosser and Keeton on Torts my look over notes?” (one § 4 at 25-26 reason for imposing liability provide tort is to incentive day, gave Later court harm; avoid future this preven- “idea of copies parties’ attorneys in- written tion punishment shades into of the of- prepared permit- structions that it had fender”). objections.12 At ted them make America, 11 BMW North Inc. v. time, attorneys Ford’s did not specifically Gore, S.Ct. 134 object to the of its omission extraterritori- (1996). L.Ed.2d 809 in- ality instruction from the trial court’s Ford, 12 Hensley v. Paul Miller structions, general but refer in did Inc., (1974); Ky., 508 incorporate pro- trial court’s failure to v. Berkley, Ky. Givens 56 S.W. proposed visions Ford’s instructions: (1900); Rowland, Shields’ Adm’rs v. Cowgill: I set object Mr. the entire 822,152 Ky. S.W. given by instructions to be the Court copy” The In- Proposed “clean of Ford’s they incorporate insofar fail B struction 6-12 omitted footnotes and the components various the instructions “general authorities” cited at the end tendered Ford Motor Co. I will copy.” the “court Ford also tendered take the time Court’s to itemize all pleading entitled of Defen- “Memorandum We ten- those. have indicated our dant, Company, Ford Motor Regarding things dered all those Necessity of Complete Pu- Instructions on necessary prop- do think are Damages” nitive Taylor which cited instruct erly the matter of Kentucky10 Kentucky11 and Carter punitive damages. Court has re- proposition that “under the United jected those instructions so that error is Constitution!,] ‘arguments States of coun- preserved, turning but then to the *8 sel cannot substitute instructions structions that the Court has indicated it ” the court.’ make, intends to I make these further all, Shortly I pro- objections your after Ford tendered honor. of its First court, (a), posed object paragraph the trial the to the of documents to inclusion proceedings delayed by prong were the tardiness the first of the malice definition juror ground of in overslept, who had and the on the that this case there is that en- videotaped judge record shows the trial no evidence whatsoever Ford 51(2). 10. 436 U.S. 98 S.Ct. 56 L.Ed.2d 12. See CR (1978). U.S. 101 S.Ct. 67 L.Ed.2d any specifi- regards as to the amount
gaged in conduct which was of tangible they intended Ford to cause these instructions even cally to intangible injury plaintiff. Kentucky this with in accordance are Therefore, superflu- completely that is jury any cap to give statute fail relationship It has ous instruction. no limitation adequate guideline or other I any to in this am evidence any punitive damages on amount of may confuse the merely concerned is in this case and there therefore jury regarding the other branch process by permitting violation due simply This isn’t a malice instruction. up jury simply come with some com- specific case for malice of the intent arbitrary number as an award pletely variety that included in that first case. I punitive damages of statutory branch of definition. Sec- believe in context with the instructions honor, object I do ondly, your honor, tendered, your have that that we (c) profitability inclusion mis- objections all adequately our reflects ground Ford on the that pre- have has been no in this case there evidence pared. alleged rendering
that the misconduct in Objections Court: overruled.... design profitable this defective just couple I Mr. Hawse: Can add a Therefore, any way. the inclu- things quick objec- other real on our any sion of that factor lacks foundation tions, flagrant That your phrase honor? jury to the evidence causes the be- thus it goes indifference is not defined something lieve there be there that directly point Cowgill that Mr. not been there in has the evidence and guideline no to the made there is the jury speculate causes about some- punitive damages jus- on when are jury thing for which it does not have proposed tifiable. instruction evidentiary simply support. There in any guidance is devoid Court honor, Finally, that. your basis for we purpose what the would our objec- reiterate constitutional they supposed to are and what tions to these I believe instructions. is in parallel achieve. The to that appear those in our to the com- answer as the compensatory instructions where plaint They in this case. are also incor- jury Court knows that the is instructed porated proposed in our own set in- a fair and reason- that the to award structions but to reiterate them compensate able amount will context these instructions plaintiff. parallel We believe that a honor, your court has prepared, ought given puni- struction to be would note that these instructions do damage that a fair rea- phase pass constitutional muster accord- amount that would achieve the sonable ing according to our view as set purposes recent decisions all, go through out at and I don’twant to they because do not provide already again all that because we Kentucky adequate guidelines with *9 finally, regard it. to done And with to punitive damages should be whether (e) way thing the reads is paragraph provide rendered and also to the fail jury can find be- to the jury adequate guidelines with as de- remedy. Ford undertook a We termining the dam- cause amount of paragraph ought specific think that that ages it determines that dam- mitigating the ages to couch conduct as particular, are order. back 162 malice, opposed to justifying of find- to tender written At instructions. the
ing malice to any start with. close the evidence party move the court to instruct the on These five forth Court: factors set any matter appropriate to the issues five the factors for them to consider in action. the determining the That amount. is the (2) considering any After tendered appropriate you most argument to structions and motions to instruct and make. the before ar- commencement of the very Mr. Hawse: I will do I the best can gument, the court par- shall the show it, your with honor. written ties the will instructions I Court: am sure will. Those are jury, give allowing oppor- them an factors presented that are under the tunity objections to make out Basically, statute. I following am hearing Thereafter, jury. statute, I am following the Palmore’s argument jury, before writ- instructions, I point am not at this given. ten instructions shall be in any position time to rule as far as (3) party may No assign as error the constitutionality of the statute’s con- or the giving give to an in- failure cerned. That issue properly is be- [not] struction unless he fairly has me. If writing fore it were me the law adequately presented position his on damages, might there be a motion, an instruction or by offered lot whole more here that not here is but objection or unless he makes before doing I am not the one that. jury, stating the court instructs the Under our Civil Rules of Proce specifically the matter he to which dure, question preservation turns objects and the ground grounds upon whether Ford’s tendered instructions objection.13 his objections to the trial court’s instruc 51(3) underlying purpose of CR to “fairly tions and adequately presented his possible “obtain the best trial the trial at position” to the trial court: court “giv[ing] judge level”14 the trial (1)At any during time before or opportunity any correct errors be-
trial, the court may parties direct the instructing jury.”15 Generally fore added). 51, (West (emphasis CR 51 Practice & Procedure CR at 458-59 1954)). Publishing Co. Hoskins, 886, Ky.App., 14. Cobbv. S.W.2d 554 (1977). Kentucky 887 See also Border Coal Inc., Contracting, Ky., v. R & B 15.Ellison Mullins, Ky., Co. S.W.2d S.W.3d 72-73 See En also Burke ("The (1974) purpose of the rule is to ... Mitchell, terprises, Ky., Inc. v. S.W.2d screen out errors at the than trial rather (1985) ("The object of the rules Doe, level.”); appellate Ky., Sparks require at counsel to assist the trial court (1964) ("The object of CR 51 and, arriving proper at instructions converse beforehand, impurities is to smoke out all ly, prevent building counsel from reversible properly the end that the will be instruct- by general misleading error into once.”); ed and case tried but Sams v. Commonwealth, objection.”); Ky., Bruce v. Co., 515, (1955) Sigmon Ikerd 280 S.W.2d ("CR 51(3) 581 S.W.2d 9-10 stands (" underlying objective these Rules is '[An] proposition that for the the trial court possible to secure the best at the trial proposed defects in the Appeals court level rather than in the Court ’ called his attention so that he is afforded simply .... All too often are instructions give opportunity planted correct instruc fertile fields in which errors are tions.”); Hardy, Ky., crop appeal.”) is harvested Cox 371 S.W.2d reversal ("The (quoting Clay, Kentucky justification Watson Civil Rules: 51 is for CR
163
that a tendered instruction
explained
party’s
if a
“offered instructions
speaking,
adequately present
the
fairly
not
and
will
clearly
position,
present
party’s
[the]
allegation
to an
of
position as
party’s
to
required”16
preserve
further action is
(1) the omitted
error when:
structional
the
appellate
allegation
review an
that
not contained
language or instruction was
to
a re-
failing
give
trial court erred
to the trial
in the instruction tendered
of oc-
quested instruction.17 On a number
court;
i.e.,
of
allegation
the
error
when
casions, however,
crimi-
in
civil and
both
trial court at
presented to
was not
the
18 eases, Kentucky appellate
nal
courts
(2)
all;19
between
the minor differences
motion,
byor
or
exemplified by
In
that
offered
unless
this record.
essence
instruction
objection
the
lawyers
party
a
assist
before
court
requires
Rule
the
case to
the
makes
judge
giving
jury, stating specifically
and
the
the
correct instructions
instructs the
post
objection
a
objects
ex
as
party
disallows an
facto
the
and the
matter to which
obtaining
judgment
of
objection.
means of
reversal
the
ground
grounds of the
Bord,
1,
1,
Ky.,
And,
appeal.”); Young
on
v. De
351
January
and
between March
1974
502,
(‘“One
important
1985,
503
9.54(2)
S.W.2d
actually
was
to
RCr
identical
purpose
requirement
51(3),
to limit
[CR 51’s]
of
is
of
which has
the current version
CR
general objection
1,
the
as a device in
use of
an
July
since
1969. After
been
existence
reversal,
subsequent
securing a
when the
1, 1985,
January
how-
amendment effective
may
court
well have obviated the error if its
ever,
9.54(2)
RCr
read:
proper
was
at
time to
attention
directed
the
Any party may
but no
tender instructions
may
proper
party
matter about which the
assign
giving
party may
or the
error
complain
subsequently
appeal.”) (quoting
give an
he
failure to
instruction unless
4,
Slone,
51,
458);
Clay,
Chaney
CR
cmt.
at
v.
specific objection
giving
or the
makes
to
484,
(1961) ("The
Ky.,
object
486
345 S.W.2d
give an
before the
failure to
instruction
give
oppor
[CR
is to
the trial court an
51]
jury, stating specifically
court instructs
error.");
tunity
Brumley
to avoid
v. Richard
objects
the matter to which he
and
son,
54,
(1954) ("The
Ky., 273 S.W.2d
55
ground
grounds
objection.
of his
purpose
judge
the rule
is to inform the trial
applied
This
that version of RCr
possible
may
errors
that he
have an
so
effect,
9.54(2)
v.
was in
see Chumbler
while it
them.”).
opportunity to correct
488,
Commonwealth, Ky.,
S.W.2d
499
905
Collins,
(1995);
Ky.,
821
Commonwealth
Wallace, Ky.App.,
16. Surber v.
831 S.W.2d
488,
(1992);
v. Common-
S.W.2d
Grooms
918,
wealth,
(1988);
Ky.,
S.W.2d
139-40
Commonwealth, Ky.,
and the instruction the trial court graphs that were not included the trial would not call the trial court’s attention to instructions, fully court’s was “a correct (3) error;20 alleged the tendered from instruction.”22 It is clear instruction itself was otherwise erroneous Farm that “a must be instructed or incomplete.21 may it not use evidence out-of-state punish
While the tendered
conduct to
instruction
defendant
action
clearly
jurisdiction
avoids either of the first
that was lawful in the
it
two
where
(2)
occurred[,]”23
pitfalls, it is debatable whether the four
and thus the extraterritori-
instruction,
page tendered
in-
ality
which
admonition contained in the fourth
al
peal.”);
Baking
Trucking
thereby
Rainbo
Co.
&
preserve
v. S
S
trial court and
the issue for
Co.,
(1970)
Ky.,
review.”);
Co.,
(holding
A jury previously Tommy found that pensatory damages previously awarded. injury by Smith’s and death were caused design of the defective transmission “Malice” means that conduct was car- system Compa- installed Ford Motor out Company ried the Ford Motor Payne, Ky„ Ky. pain suffering Co. contrary Louisville & N.R. v. 133 for award and was 539, 352, (1909)("It 118 S.W. 354-55 has and a only the law remanded for retrial of that, frequently held verdict.”) (citations been where certain in- portion erroneous of the approved structions been omitted); Shein, have the law of as Ky., Deutsch v. 597 S.W.2d case, upon a only retrial be 141, such should (1980) ("[Wjhere a 146 distinct sev- and given, and it is error for the to fail trial court decided, erable issue is to be a trial on that those, give give or refuse to or to other or appropriate issue alone is unless such a retri course, additional instructions. Of facts injustice.”); al would result Caton v. upon the were retrial different from those McGill, 345, (1972) ("In Ky. 488 S.W.2d 347 trial, upon the former the trial court would be against the fact view of that the found justified making conform liability, appellees on the issue which find of facts.”); Meyer, Ky., Ky. to the 12 Sturm v. ing challenged cross-appeal is not in this 350, (1890) (where L.Rptr. S.W. 14 359 court, any and we are not cited manifest excepted regarded structions not to will be injustice which would from a limited result case); the law Valley Ohio Co. v. R. retrial, the retrial be limited to the Alves, (instruc- Ky., Rptr. (1890) Ky. L. 11 811 damages.”); of issue and Louisville Jefferson excepted tions not are taken to be law Mulkins, Bd. County Ky., Health 445 v. of case); Revlett, Taylor H.R. ex rel. 849, (1969) ("Since S.W.2d 853 we find no (1999) Ky.App., (quoting 998 S.W.2d 780 regard error in to the of determination liabili Williford, Ky., Siler v. 263 S.W.2d ty any and since there are indications of (1964)) ("The pro- of the case' 'law doctrine might prejudicial influences that have affected appellate vides that: When court decides a determination, remanding we are instructions, question concerning evidence or question case for retrial on the question opinion law settled Smith, City damages.”); Ky., Ashland final a retrial in which the evidence is (where liability 340 S.W.2d substantially precludes the same and the re- judgment established reversed be consideration of claimed error on sec- damages, cause of excessiveness of retrial lim appeal.”). ond Rice, damages only.); Shortridge ited to (1996) ("In Ky.App., 929 S.W.2d McMillan, 26. Smith v. 841 S.W.2d light Shortridge of our determination (1992) ("As regard we of dam issue wrongfully deprived aof instruction ages as and severable’ the issue ‘distinct from damages, must consider the liability injus in this and discern no appropriateness on the retrial issue of result, tice which will retrial will be limited damages specifi [CR] alone.” 59.01 damages.”); Turfway Racing Park Assn v. cally only "part authorizes a new trial for Griffin, Ky., Kentucky (“This the issues” and "[t]he long Court has endorsed the view that strong preference has noted its for lim damages may separated liability be from alone.”); damages ited retrials on the issue of properly that a case be remanded PHILIPPS, JR„ only. see also KURT A. KEN gone retrial of We fur 59.01, PRACTICE, (5th personal injury ther and CR cmt. 4 held in case that an TUCKY ed.1995). expenses award of medical without Company conduct Ford Motor flagrant with a indifference both Kentucky. outside occurred a sub- rights Tommy Smith and with they damages, jective awareness such If bodily in human or calm discretion result must be fixed with would death reason, be either never harm. sound awarded, amount, or because fixed damages” “Punitive bias, prejudice with any sympathy, Company against awarded any party case. respect punishing Ford Motor purpose for the in this case Company for its misconduct FORM VERDICT engag- it and from deterring others ing one) in similar conduct the future. (check *14 puni- you make award Whether _ We, jury, do award the compen- damages, in addition to the Tommy to Smith’s Estate. awarded, is a satory previously OR exclusively your within discre- matter _ We, jury, Tommy award Smith’s the If, however, you tion. damages of Estate damages, determining the amount in thereof, you should the follow- consider jurors required for a ver- [Number ing factors: dict] (a) The likelihood at the time of such the note should would also that We Company Ford misconduct Motor on remand of question arise whether it; harm would arise from serious of Ford’s financial condi- admit evidence (b) degree The Com- Ford Motor Farm, tion, that in States United likelihood; of that pany’s awareness “ pres- ‘the Supreme Court frowned (c) The of misconduct profitability of a net entation of defendant’s evidence Company; to Ford Motor worth[, potential creates because it] (d) misconduct duration to ex- juries will use their verdicts any of it Ford Mo- concealment businesses, big partic- against biases press Company; tor strong pres- ularly those local without ’27 (e) Any actions Com- Ford Motor Likewise, predecessor our ences.” remedy once pany misconduct clearly “we court stated that Company. became known to as to financial evidence opinion plaintiff defendant or Company’s of Ford Motor condition either Evidence Kentucky may be admitted case which occurring conduct outside might be be- determining punitive damages recovered” be considered testi- tendency of this class of cause Company’s “[t]he whether Ford Motor consider mony to lead the occurring Kentucky reprehensi- would be of the de- ble, so, chiefly pecuniary condition degree reprehensi- and if fendant, enormity or wan- However, out- than bility. not use rather dam- act for which to award the Estate tonness of-state evidence ages might be allowed.”28 Tommy punitive damages against Smith 336, 2331, 2340-2341, 129 L.Ed.2d Campbell, Auto. Ins. Co. v. 27. State Farm Mut. (1994)). 1520, 408, 417, 123 S.Ct. 585,(2003) (quoting Mo Honda L.Ed.2d Berkley, Ky., Ky. 28. Givens S.Ct. Oberg, 512 U.S. tor Co. S.W. III. pushes perceived CONCLUSION litigating cost of against Ford high diminishing so reasons, For the above we vacate the punitive damage creating awards or judgment’s award of perception that punitive damages will be remand for a new determination of the small significant serve as a deterrent punitive damages, amount of any, plaintiffs future who seek redress from opinion. accordance with this
Ford. LAMBERT, C.J.; COOPER, GRAVES wrongful Sand Hill is an action for JOHNSTONE, JJ., concur. clearly death. It is interest WINTERSHEIMER, J„ dissents protect Commonwealth its citizens from STUMBO, J., separate opinion in which such harm and could be considered as joins. distinct from the interest of citi- protecting zens from mere economic damages. The Dissenting opinion by Justice right to in wrongful recover death claims is WINTERSHEIMER. specifically protected by constitutional sec- respectfully I must dissent from the ma- tions 15 and 241. Reliance on State jority opinion because the failure *15 Farm Mut. Auto. Ins. v. Campbell, Co. limiting clude additional instructions con- S.Ct. L.Ed.2d 585 cerning punishment extraterritorial was (2003), misplaced that case in- because puni- not a sufficient reason to the vacate volves an action for faith bad with econom- award and remand the case ic personal injury loss rather than or for a new trial on that issue. wrongful death. review, In my appear it would that the question objection of whether this It is curious to argument note properly preserved highly debatable. presented by exactly Ford is the same present objections Ford did not to specific argument it advanced in in its earlier brief by in judge declining omissions the trial the case of Hill Inc. v. Energy, Sand Ford apply 17-page suggested a instruction. Co., (2002), Motor in object Ford’s “I counsel stated to the en- a majority which of this Court reversed a given by tire set to be the court insofar as Appeals decision of the Court of and rein- fail they incorporate compo- the various compensatory stated a million $3 by nents of the instructions tendered original million of the million $15 $20 Company I not and will take the punitive damages. Supreme The Al- court’s time to itemize all those.” granted Court of the United States though pointed counsel for Ford other petition of Ford to vacate Hill I and Sand specific important, items that it considered remanded it to this Court for further con- component punish- of extraterritorial Farm, in light sideration of State su- not specifically. ment was made in pra. majority opinion, As noted paid compensatory damage Ford has objection This blanket failure $5,596,425, parties agree award of and the incorporate egregiously worded and poorly only remaining that the is the issue viabili- self-serving in at instructions serves least fashion, ty punitive million award. If we by tactic $20 some as subversive are to consider on the basis plaintiffs potentially Ford to stall the this Farm, in litigation high suggested the cost of so ratios State drive + multiplier of 6 times the million would Ford could achieve reduced settlement $3 payment altogether. give It also us a million award which avoid the $20 liti- economically making feasible range suggested is well within cases, among reasons gate such were Supreme States Court. United upholding the entire stated for However, majority decision Therefore, up- the court damage award. case, appears departed we have from what regard damages without held the States to be mandate the United compensatory ratio between Court and embarked a re- punitive. our original consideration of decision Hill in 2002. instructional issue Sand circumstances, all the we Under in particular, raised in that case and elongation Further do the same. opinion. at in a length dissenting discussed anyone no service to litigation here does in a It could now said that are kind be compen- merely blurs the line between rehearing accepting mode rather than satory damages. the direction of the remand order. The question Nationally, there is served this de facto parties awarding punitive dam- some verdicts rehearing reconsideration. ages been excessive. The United Even we consider this case as distinct wisely has chosen Supreme Court States theory damage from the economic ad- requiring to address such situation Farm, vanced we should consider state de novo review such awards analysis provided by Judge Richard suggested some courts and has appellate Posner the Seventh Circuit Court It is guidelines numerical for such review. Economy Mathias v. Accor Appeals run- very that there are a few unfortunate (7th Inc., F.3d Lodging, Cir.Ill. away large juries outrageously that award 2003). The Appeals Federal Court of the other side of punitive verdicts. On *16 gave example recovery that case an corpo- coin fact and is the that individual battery spit- allowed committed rate entities must be held accountable cases, ting in face. another’s In such flagrant in both misbehavior that results compensatory damages must be nominal injury damage. physical and economic way no represent because there is many There no doubt that the advances is Therefore, damages adequately. actual safety and health have result- consumer among reasons, other U.S. Court wrong- diligent pursuit ed from civil Appeals a ratio applying concluded that key just is bal- doers. The to a solution to such a meaningless. case ance It is and reasonableness. judicial police stated “the function is to greedy anything venal have who case, In range, point.” not a Mathias re- simple fear. A mistake that does injuries plaintiff personal had suffered malice, negligence, sult from carelessness bugs in a being because bitten bed rarely subject of a or indifference Judge motel. Posner likened their dam- significant punitive award. face, age having spit more been Campbell, than to caused breach con- the United States though properly promulgated general ac- Court plaintiffs tract. Even had bills, each applied particular standard to be represented by tual medical any analysis, required. Under the federal court determined there is suggested by is not damage Campbell ratio formula purpose more behind the Thus, it can be merely exceeded here. considered concept magnifying than actual damage is well the tortious award Adequate costs. deterrence of acceptable guideline. activity as well within vigorous litigation, litigation Fear unreasonable has im- the punitive damage be vacated and paired, degree, ability given by to some our basic should be reinstated. Doctors, make clergy, sensible decisions. STUMBO, J., joins dissenting
teachers and lawyers, even as well as the opinion. business, general public and every day find
decisions conditioned a concern about litigation.
frivolous Many people are ner- doing anything.
vous about almost Such atmosphere is not consistent with true
liberty activity. and freedom of Lawsuits culture, place our not the but only place. They should be undertaken GEVEDEN, Representative; Charles carefully for valid causes. Threats have Nunn, Representative; Steve Jim place. Wayne, Representative, Movants, Certainly, excessive verdicts are a problem, equally serious but serious is the unreasoned fear of the application of Kentucky, COMMONWEALTH of Of well-meaning professionals such verdicts to Governor, fice of the ex Ernie rel. organizations. Both conditions con- al., Fletcher, Respondents. et significantly tribute to excessive insurance No. 2004-CA-001588-I. many profession- rates for businesses and als. The unduly answer is not to or uncon- Appeals Kentucky. Court of stitutionally limit right recovery, but Sept. rather improvement regula- for an industry tion of the insurance such as has accomplished
been in California. easy Perhaps part
There is no solution.
of the resolution could be an com- intense
prehensive study by appropriate gov- *17 agency proper
ernmental as to a review regulation industry. of the insurance
Certainly, society enough our is flexible many competing
accommodate concerns fidelity diluting
without our to Sections Kentucky
54 and 241 of the Constitution protect rights
which of the citizens to damages.
recover reconsideration, definition,
True does necessarily change. mean automatic majority remand authorized satisfy
unwarranted and does not the man-
date of the United States Court.
However, tak- considering approach majority, my opinion
en it is original decision of this