Chеryl L. VANDEVENDER, Plaintiff Below, Appellee, v. SHEETZ, INC., a Pennsylvania Corporation, Defendant Below, Appellant, Karen Foltz, Defendant Below, Appellee.
No. 23463
Supreme Court of Appeals of West Virginia
Decided July 11, 1997
490 S.E.2d 678 | 200 W. Va. 591
Justice Maynard
Submitted Feb. 4, 1997. Dissenting Opinion of Justice Maynard July 17, 1997.
IV. CONCLUSION
The Appellant has characterized the marine life pursuits as simply a hobby; the Appellee has portrayed Mr. Bessette as an inventor/businessman engaged in the pursuit of business activity designed for ultimate, if not immediate, profit. As in Lambert, our conclusion must be premised upon an examination of the performance of the activity itself, the issue of compensation or lack thereof, and the apparent intention of the parties engaged in the pursuit. Was this a “continuous or regular activity ... for the purpose of earning a profit or a livelihood?” Camden Fire, 170 W.Va. at 316, 294 S.E.2d at 119. We conclude that it satisfies the definition of business pursuit and that the lower court correctly granted summary judgment in favor of the Appellee. The fact that the marine life systems were not Mr. Bessette‘s means of providing livelihood is not dispositive on the issuе of whether the property was business property. Although Mr. Bessette had not yet profited from the sale of the marine life, the evidence reflects that he was engaged in an attempt to create a marketable technique for extending the shelf life of marine life and sold the lobsters in connection with that goal. He borrowed funds to advance this enterprise. This was not a pursuit simply designed for personal gratification, and to classify it as merely a hobby would be inaccurate.
Affirmed.
Thomas R. Goodwin, Richard D. Owen, Susan C. Wittemeir, Goodwin & Goodwin, Charleston, for Appellant.
Harry P. Waddell, Wilkes & Waddell, Martinsburg, for Appellee Foltz.
PER CURIAM:
Through this appeal, Appellee Sheetz, Inc. (“Sheetz“) challenges the verdict awarded to Appellee Cheryl Vandevender in a wrongful discharge case on grounds of unconstitutionally excessive punitive damages. After reviewing the record of this case, we determine that the punitive damages awarded in connection with the theories of unlawful termination and refusal to permit Appellee to apply for rehire or return to work were excessive under our prior holdings. However, we uphold the punitive damages awаrded in connection with the theory of retaliation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ms. Vandevender was hired as a salesperson by Sheetz for employ in one of its convenience stores on June 8, 1989. Within six months, she was promoted to second assistant manager. While at work on January 4, 1991, Appellee suffered a back injury.1 She first saw a physician in connection with this back injury on January 21, 1991.2 Despite her injury, she continued to work for a number of months. Ms. Vandevender began receiving temporary total disability (“TTD“) benefits on July 30, 1991, in connection with the back injury she sustained while employed at Sheetz. She underwent back surgery on October 7, 1991.
In either August or October of 19923 Appellee met with Sheetz’ store manager Karen Foltz and informed her that she was able to
Sheetz sent Appellee a letter on March 15, 1993, stating its policy that a twelve-month absеnce from work is treated as a resignation.4 The correspondence indicated that if Appellee was able to work, she should contact the company‘s human resource department within one week of her receipt of the letter and that she would be eligible for rehire upon appropriate medical release subject to her qualifications and abilities in relation to the job duties and responsibilities. Appellee did not contact either Sheetz’ human resource department or her store manager following her receipt of this letter. In accordance with its company policy regarding a one-year absence, Sheetz fired Appellee in March 1993.
Appellee was examined by a workers’ compensation physician on June 19, 1994, and determined to have reached her maximum degree of medical improvement, according to the June 28, 1994, report of Dr. Siad. As a result of this medical determination, Appellee‘s TTD benefits were terminated on October 11, 1994.
On October 12, 1994, Trudy Rohrbaugh, a West Virginia Rehabilitation Cоunselor, called Ms. Foltz to inquire about Appellee returning to work. While Ms. Foltz reportedly told Ms. Rohrbaugh that it was her understanding that it would be futile for Appellee to apply for rehire, she did instruct the rehabilitation counselor to call Sheetz’ corporate office concerning the company‘s reemployment policy. It is undisputed that neither Appellee nor Ms. Rohrbaugh called Sheetz’ corporate office to inquire regarding Sheetz’ policy.
On December 1, 1994, Appellee filed a civil action against Sheetz for refusing to rehire an employee discharged following a work-related injury in violation of the anti-discrimination provisions of the
Sheetz offered to hire Appellee as a sales clerk on February 3, 1995.8 She returned to work at Sheetz on April 17, 1995. The regional manager, Ms. Imler, was present on the date of Appellee‘s return to work, and requested that Appellee provide her with a list of work restrictions. Ms. Imler demanded to see written restrictions despite the fact that Sheetz had required Appellee to undergo an independent medical examination one month prior to her return to work and despite the fact that Ms. Imler and Sheetz’ district manager, Ms. Anslinger, had specifically discussed the results of Appellee‘s
In June 1995, Appellee amended her complaint to allege that Sheetz failed to accommodate her during the period of 1991 to 1995 in violation of the Human Rights Act and that Ms. Imler‘s request that she stock the cooler on April 17, 1995, constituted an unlawful reprisal in violation of the Human Rights Act. See
II. DISCUSSION
A. Federal Law
Sheetz asserts that under the standards set forth by the United Stаtes Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the punitive damages award was grossly excessive in violation of Sheetz’ due process rights. Sheetz also maintains that the circuit court failed to conduct a “meaningful and adequate review” of the punitive damages award as required by Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).
As the United States Supreme Court articulated in BMW, “[t]he Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a “‘grossly excessive‘” punishment on a tortfeasor.” 517 U.S. at 562, 116 S.Ct. at 1592 (quoting TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 454, 113 S.Ct. 2711, 2718, 125 L.Ed.2d 366 (1993)). In BMW, the plaintiff brought suit against the automobile manufacturer for failing to disclose that the vehicle he purchased had been repainted following damage to the car‘s body. 517 U.S. at 563, 116 S.Ct. at 1593. The Georgia jury awarded $4,000 in compensatory damages and $4,000,000 in punitive damages. Despite the state supreme court‘s remittitur of the punitive damages award to $2,000,000, the United States Supreme Court determined that the award was grossly excessive in violation of the Due Process Clause. Id. at 585-86, 116 S.Ct. at 1604.
Stressing the totally economic nature of the compensatory damages awarded in BMW, the Supreme Court identified three guideposts for use in examining the companion Due Process Clause concerns of fair notice of the type of conduct that will subject a defendant to punishment and fair notice of the severity of the penalty that may be imposed for such conduct. These “guideposts” are: (1) the degree of reprehensibility of the defendant‘s conduct; (2) the ratio of punitive
The Due Process Clause issue raised by Appellant involves the procedural concern of whether Sheetz received adequate notice of the severity of the penalty imposed by the award. As noted in BMW, our system of jurisprudence includes the axiom that “a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may imposе.” 517 U.S. at 574 n. 22, 116 S.Ct. at 1598 n. 22 (observing that “strict constitutional safeguards afforded to criminal defendants are not applicable to civil cases, but the basic protections against ‘judgments without notice’ afforded by the Due Process Clause is implicated by civil penalties“) (quoting Shaffer v. Heitner, 433 U.S. 186, 217, 97 S.Ct. 2569, 2586-87, 53 L.Ed.2d 683 (1977)).
B. State Law
Recent developments concerning the area of punitive damages began with this Court‘s pronouncement in syllabus point one of Garnes that “[p]unitive damages must bear a reasonable relationship to the potential of harm caused by the defendant‘s actions.” 186 W.Va. at 658, 413 S.E.2d at 899, Syl. Pt. 1, in part. Through that decision we imposed the necessary, but previously lacking, requirement of “a meaningful and adequate review” by both the trial and appellate court systems, announcing that
Under our system for an award and review of punitive damage awards, there must be: (1) a reasonable constraint on jury discretion; (2) a meaningful and adequate review by the trial court using well-established principles; and (3) a meaningful and adequate appellate review, which may occur when an application is made for an appeal.
Id. at syl. pt. 2.
As a necessary corollary to the review requirements imposed by Garnes, we provided trial courts with the following instructions regarding what factors they should advise juries to consider in making punitive damages awards:
When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant‘s conduct as well as to the harm that actually has occurred. If the defendant‘s actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.
(2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant‘s conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
186 W.Va. at 658, 413 S.E.2d at 899-900, Syl. Pt. 3.
Following the return of a punitive damages award, Garnes requires the trial court to make a “meaningful and adequate review” of the award.
When the trial court reviews an award of punitive damages, the court should, at a minimum, consider the factors given to the jury as well as the following additional factors:
(1) The costs of the litigation;
(2) Any criminal sanctions imposed on the defendant for his conduct;
(3) Any other civil actions against the same defendаnt, based on the same conduct; and
(4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff.
186 W.Va. at 659, 413 S.E.2d at 900, Syl. Pt. 4, in part.
With regard to this Court‘s review of punitive damages awards, we stated in syllabus point five of Garnes that:
Upon petition, this Court will review all punitive damage awards. In our review of the petition, we will consider the same factors that we require the jury and trial judge to consider, and all petitions must address each and every factor set forth in Syllabus Points 3 and 4 of this case with particularity, summarizing the evidence presented to the jury on the subject or to the trial court at the post-judgment review stage. Assignments of error related to a factor not specifically addressed in the petition will be deemed waived as a matter of state law.
186 W.Va. at 659, 413 S.E.2d at 900.
Following Garnes, we next addressed the subject of punitive damages awards in TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff‘d, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). That decision, while applying the Garnes factors, made a distinction between those defendants who did not intentionally or malevolently harm a plaintiff and those defendants who intentionally or malevolently committed acts they knew to be harmful.14 With regard to those defendants who had no actual intention to commit harm, we held in syllabus point fifteen of TXO that
The outer limit of the ratio of punitive damages to compensatory damages in cases in which the defendant has acted with extreme negligence or wanton disregard but with no actual intention to cause harm and in which compensatory damages are neither negligible nor very large is roughly 5 to 1. However, when the defendant has acted with actual evil intention, much higher ratios are not per se unconstitutional.
187 W.Va. at 461, 419 S.E.2d at 874.
Most recently, we exhorted in Alkire v. First National Bank, 197 W.Va. 122, 475 S.E.2d 122 (1996), that:
Under our punitive damage jurisprudence, it is imperative that the amount of the punitive damage award be reviewed in the first instance by the trial court by applying the model specified in Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and Syllabus Point 15 of TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff‘d, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). Thereafter, and upon petition, this Court will review the amount of the
punitive damage award, applying the standard specified in Syllabus Point 5 of Garnes.
Syl. Pt. 5, 197 W.Va. at 124-25, 475 S.E.2d at 124-25. We further stated that:
Every post-trial analysis as to the amount of the punitive damage award should be conducted by the trial court exclusivеly within the boundaries of Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and Syllabus Point 15 of TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992) [,aff‘d, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993)]. We remove from the lexicon of reviewing the amount of a punitive damage award the terms “really mean” and “really stupid,” as they were applied in TXO.
Syl. Pt. 6, 197 W.Va. at 125, 475 S.E.2d at 125.
In syllabus point seven of Alkire, we identified the model under which punitive damage awards are reviewed:
Our punitive damage jurisprudence includes a two-step paradigm: first, a determination of whether the conduct of an actor toward another person entitles that person to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895); second, if a punitive damage award is justified, then a review is mandated to determine if the punitive damage award is excessive under Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).
197 W.Va. at 125, 475 S.E.2d at 125.
Under this two-stage model, we first examine whether a punitive damage award was permitted for the conduct of Sheetz toward Appellee. See id. In her original complaint, Appellee asserted two theories against Sheetz, both predicated on the company‘s failure to rehire her following discharge subsequent to a work-related injury. In her amended complaint, she included theories of liability for Sheetz’ alleged failurе to accommodate her physical limitations and for committing an unlawful reprisal in retaliation for Appellee‘s filing of a workers’ compensation claim. Appellee‘s theories of recovery in both her original complaint and the amended complaint were expressly pled as violations of the Human Rights Act and the Workers’ Compensation Act.
Sheetz argues on appeal that punitive damages are not recoverable for violations of the anti-discrimination provisions of the Workers’ Compensation Act or the Human Rights Act. Appellee argues,15 and Sheetz admits, that it failed to raise this substantive objection below.16 Our review of the record confirms a failure to preserve this issue for appeal.17 As we held in syllabus point two of Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958), “[t]his Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” Accordingly, we decline to address this issue for the first time on appeal.
1. Did Sheetz’ conduct permit an award of punitive damages?
In Alkire, we revisited the types of conduct that give rise to punitive damages
‘In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reсkless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.’
197 W.Va. at 129, 475 S.E.2d at 129 (quoting Mayer, 40 W.Va. at 247, 22 S.E. at 58). Evidence of Sheetz’ conduct cited by Appellee that entitles her to a punitive damages award includes Sheetz’ admission of violating this state‘s public policy to return injured workers to the workplace as quickly as possible. See
Additional evidence of improper conduct involves Sheetz’ failure to pay even one penny of Appellee‘s medical expenses as of November 1995, despite its stipulation to $7,000 in medical expenses. Similarly offensive, as the trial court observed in its order denying Sheetz’ motion for judgment notwithstanding the verdict, was Sheetz’ complete failure to engage in settlement negotiations.21
Further factual evidence of Sheetz’ improper conduct toward Appellee included the regional manager‘s feigning ignorance regarding knowledge of any physical limitations when she returned to work. Ms. Anslinger testified that she told Ms. Imler that Appellee was not to do any bending, lifting or twisting. Yet, when Appellee returned to work, Ms. Imler took the position that “until I see ... [an updated physician‘s statement], you‘re just like one of the others.” This deceitful tack was further exacerbated by Ms. Imler‘s demand that Appellee have a current medical examination completed by the end of the work week, in spite of the fact that Appellee was scheduled to work every day that week.
The jury also heard evidence of surveillance efforts that Sheetz undertook in connectiоn with both Appellee‘s return to work and her later visits to the store. The day after Appellee returned to work, Ms. Imler returned to the store to retrieve the tape that was made of Appellee the day before. The trial court notes, in its order, that various sales clerks began taking pictures of Appellee when she shopped at Sheetz’ store and that these pictures all made their way to Ms. Anslinger‘s office at corporate headquarters. The trial court further observed that “[n]o one accepted responsibility at trial for this surveillance.”
Given Sheetz’ admissions of discriminatory acts that constitute violations of both state law and public policy,22 we conclude
2. Meaningful and Adequate Review
The trial court‘s understanding of its review obligations under Garnes is apparent from the order denying Sheetz’ motion for judgment notwithstanding the verdict:
The Court has considered the evidence adduced at trial and has: reviewed whether the punitive damages awarded bear a reasonable relationship to the harm that is likely to occur from Sheetz, Inc.‘s conduct as well as the harm that has actually occurred; reviewed the reprehensibility of Sheetz, Inc.‘s conduct; considered whether Sheetz, Inc. profited from its wrongful conduct; considered Sheetz, Inc.‘s financial position; considered the costs of litigation, the lack of any criminal sanction, the absence of other civil actions based upon the same conduct, the appropriateness of punitive damages to encourage fair and reasonable settlement once the fact that a clear wrong was committed is apparent, and, as a matter of fundamental fairness, whether the punitive damages awarded bear a reasonable relationship to the compensatory damages awarded.
In reviewing the facts of the case against these standards, the trial court opined:
Sheetz, Inc. continued upon its illegal course of conduct for a period of nearly five years. Such acts included refusing to accommodate plaintiff‘s work restrictions, refusing to reinstate plaintiff after suffering a compensable workplace injury, discharging plaintiff from employment, refusing to rehire plaintiff, and refusing to allow plaintiff to even apply for reemployment. Other illegal acts that justify a substantial award of punitive damages include retaliating against a manager who testified during a deposition contrary to Sheetz, Inc.‘s position, and retaliating against plaintiff upon her negotiated return to work by requiring her to perform work activities which defendant‘s managers knew she could not perform without risking re-aggravating her injuries or causing new injury.
The Court further finds that Sheetz, Inc., by policy and practice, has attempted to evade its responsibilities to workers injured in the line of duty by discharging them and refusing, in derogation of our laws, to re-employ such injured workers. Such policies and practices have the effect of increasing Sheetz, Inc.‘s profits at the expense of honest competitors, other honest employers and their employees, and to the detriment of the citizens of this State. The Court notes that most, if not all of the operative facts in this case, took place after the passage of the Americans with Disabilities Act, an Act that has been the subject of considerable public discussion and awareness. It is simply not credible for Sheetz, Inc. to claim, as it attempted to do in argument, that it made “mistakes.” Indeed, Sheetz, Inc. paid bonuses to managers based on their ability to reduce Workers’ Compensation premiums, thus encouraging conduct that violates State public policy.
....
Moreover, the Court finds that the punitive damages awarded bear a reasonable relationship to the compensatory damages due in considerable part, to the affirmative, retaliatory conduct of Sheetz, Inc. in refusing to accommodate plaintiff, discharging her, refusing to allow her to reapply for employment, and in retaliating against her when she was finally returned to work.
Our review of the record reveals that the trial court properly engaged in the review process required by this Court in Garnes for awards of punitive damages. See 186 W.Va. at 667-69, 413 S.E.2d at 908-10. Accordingly, we reject Sheetz’ contention that it was denied a “meaningful and adequate” review of the punitive damages award. Id.
3. Excessiveness of the Punitive Damage Award
Returning to the crux of this appeal, we must now examine whether the punitive dam
At the core of any appellate review of punitive damages is the concern that “the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Pacific Mut. Life Insur. Co. v. Haslip, 499 U.S. 1, 21, 111 S.Ct. 1032, 1044, 113 L.Ed.2d 1 (1991). While the impossibility of crafting a mathematically precise bright line for purposes of examining punitive damages awards is well-accepted, the admittedly inexact alternative has been to view the award against a host of factors intended to assure that “the discretion [with which punitive damages are awarded] is exercised within reasonable constraints, [and] due process is satisfied.” Id. at 20, 111 S.Ct. at 1044. In this State, those factors are referred to as the Garnes factors.27
In syllabus point fifteen of TXO we distinguished between conduct that demonstrates “extreme negligence or wanton disregard” and conduct that evinces an “actual intention to cause harm.” 187 W.Va. at 461, 419 S.E.2d at 874. The significance of that distinction was our formulation of an outer limit of five to one with regard to the ratio of punitives to compensatory damages in cases that fall into the first category—that is, those cases in which the defendant‘s conduct registers on the scale of extreme negligence or wanton disregard. Id. Only in those cases where the defendant can be shown to have actually intended to cause harm is the ratio of punitives to compensatories permitted to climb higher without “rais[ing] a suspicious judicial eyebrow.” TXO, 509 U.S. at 481, 113 S.Ct. at 2732 (O‘Connor, J., dissenting). The type of evidence presented against Sheetz in this case with regard to the unlawful termination/failure to hire claims suggests an employer who clearly acted in contravention of state law and policies, but not an employer whose conduct indicates a malicious intent to prevent Appellee from returning to its employ. Simply put, bad or legally incorrect corporate policy is not the equivalent of a mean-spirited, evil intent to cause harm. Conversely, the evidence adduced in connection with the retaliation theory—Sheetz’ acts upon Appellee‘s return to work—fall into a different category. The acts of Ms. Imler in willfully pretending to be unaware of any work restrictions when Appellee returned to work, directing her to get yet another doctor‘s examination by the end of the work week, directing Appellee to engage in strenuous physical work right off the bat, as well as Sheetz’ surveillance of Appellee during both her return to work and on subsequent visits to the store suggest a mean-spirited intent to punish Appellee for her injury and the resulting claims made against Sheetz.
A corollary to the punishment objective of punitive dаmages awards is the goal of ensuring that such awards will serve to deter similar conduct. Sheetz stated at trial that it has changed its corporate policy to comport with the employment laws of this State.28 While we doubt that Sheetz would risk being subjected to a large jury verdict again for conduct similar to that at issue here,29 nonetheless, an appropriately sized punitive damages award may be necessary to ensure against repetition of both the conduct and policies employed by Sheetz in this case.
Another Garnes factor which requires consideration is the reprehensibility of the defendant‘s conduct. When reviewing this issue, the trial court identified various indicia of Sheetz’ reprehensibility, which included failing to accommodate Appellee‘s work restrictions, failing to permit her to return to work absent complete recovery, discharging her, refusing to rehire her, paying its managers bonuses tied to reduced workers’ compensation premiums, and failing to ac
The trial court concluded that there are no civil or criminal penalties available for comparison purposes for the conduct at issue here. While this State does not provide for criminal penalties for violations of the Human Rights Act30 or the Workers’ Compensation Act, the Workers’ Compensation Act expressly provides for a cause of action premised on violation of its anti-discrimination provisions. See
The additional Garnes factors considered by the trial court included the length of time Sheetz continued in its actions. Noting that Sheetz “continued upon its illegal course of conduct for nearly five years[,]” the trial court further observed that: “Not until opening statements did Sheetz, Inc. ever admit that their policies were illegal. Up until the first day of trial, Sheetz, Inc. denied any wrongdoing.” The lower court also considered the complete absence of a fair and prompt settlement offer as well as the substantial costs32 to Appellee in pursuing her claims against Sheetz. Additional review factors included the favorable financial position of Sheetz33 and the appropriateness of a significant punitive damages award to discourage future bad acts as well as to encourage fair and reasonable settlements once a defendant is made aware of the fact that a clear wrong has been committed.
While we disagree with Sheetz’ contention that BMW somehow altered the review factors previously identified in Garnes, we do wish to address this argument. While the BMW decision clearly delineates three “guideposts” for use in connection with the review of punitive damage awards, these so-called “guideposts” are merely reiterations of factors previously-adopted by both this Court and the United States Supreme Court. Contrary to Sheetz’ position that BMW somehow alters this State‘s law on punitive damages review, each one of the “guideposts” was in fact applied by the trial court in its review of this case. Other than utilizing the “guidepost” terminology, BMW does not depart from existing law regarding punitive damages. Although BMW confines its analysis of the issue of notice to these three “guideposts“—a term that certainly suggests the possible use of additional factors—there is
Because the record in this case lacks evidenсe that Sheetz’ conduct towards Appellee with regard to the unlawful termination/failure to rehire claims was prompted by malice or an intent to cause her specific harm and because the evidence on these claims similarly fails to demonstrate fraud, trickery, or deceit on Sheetz’ part, we cannot uphold the punitive to compensatory ratio of seven to one under our ruling in syllabus point fifteen of TXO. See 187 W.Va. at 461, 419 S.E.2d at 874; see also TXO, 509 U.S. at 462, 113 S.Ct. at 2722-23 (upholding large punitive damages award, based in part, on employment of scheme involving “fraud, trickery and deceit“). Sheetz’ conduct on these claims falls into a category of reckless disregard of Appellee‘s rights, rather than malice committed towards her. See Rush, 930 F.Supp. at 201. Under this Court‘s holding in syllabus point fifteen of TXO, we determine that the punitive damages award should be reduced by the amount of $466,260 so that a comparison of the punitive to the compensatory damages would result in a five to one ratio. 187 W.Va. at 461, 419 S.E.2d at 874. We find this result required by longstanding principles that mandate a reasonable relationship between the compensatory and punitive damages award.
We do not feel constrained to reduce the amount of the punitive damages awarded for the retaliation claim, however, despite the fifteen to one ratio,34 due to the fact that the evidence introduced in connection with this claim crossed the line from reckless disregard of an individual‘s rights to willful, mean-spirited acts indicative of an intent to cause physical or emotional harm to Appellee in connection with her injury and resulting claims against Sheetz. As we stated in syllabus point fifteen of TXO, higher ratios between punitives and compensatories are permissible when the evidence suggests malevolence or actual intent to harm. See 187 W.Va. at 461, 419 S.E.2d at 874. The deceptiveness employed by Ms. Imler when feigning ignorance regarding Appellee‘s medical restrictions and Sheetz’ continuing use of surveillance cameras on Appellee is sufficiently analagous to the area of “fraud, trickery, or deceit” recognized by the United States Supreme Court in TXO as deserving of larger awards of punitive damages. See 509 U.S. at 462, 113 S.Ct. at 2722-23. Given the trial court‘s exemplary employment of the Garnes factors to this case as discussed above, we are satisfied that the trial court properly engaged in the review required and that the facts of this case with regard to the
The final matter which we address is Sheetz’ request that this Court expand upon our recognition in Mace v. Charleston Area Medical Center Foundation, 188 W.Va. 57, 422 S.E.2d 624 (1992) and Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), that in those cases where emotional distress damages are sought and obtained without evidence of accompanying physical trauma, such awards “may assume the cloak of punitive damages.” Harless v. First Nat‘l Bank, 169 W.Va. 673, 690, 289 S.E.2d 692, 702 (1982). While the record in this case suggests that the evidence introduced regarding Appellee‘s suffering of emotional distress may indeed have been meager,36 Sheetz agreed to the jury instruction on emotional distress damages and jointly submitted the verdict form which expressly allowed the jury to consider punitive and emotional distress damages. Accordingly, we decline to consider this issue when Sheetz did not raise the issue below for the trial court‘s consideration in the first instance. See Sands, 143 W.Va. at 522, 102 S.E.2d at 734, syl. pt. 2. We similarly refuse to address the issue of instructional error raised in the first instance on appeal when no objection was made below.37 See Horan v. Turnpike Ford, Inc., 189 W.Va. 621, 626, 433 S.E.2d 559, 564 (1993) (stating that “‘party may only assign error to the giving of instructions if he objects thereto before arguments to the jury are begun stating distinctly the matter to which he objects and the grounds of his objection‘“) (quoting Syl. Pt. 1, Roberts v. Powell, 157 W.Va. 199, 207 S.E.2d 123 (1973)).
Based on the foregoing, this matter is reversed, in part, and remanded to the Circuit Court of Berkeley County for entry of an order consistent with this opinion.
Reversed, in part, and remanded.
MAYNARD, J., dissents and files a dissenting opinion.
MAYNARD, Justice, dissenting:
Cheryl Vandevender was essentially out of work for four weeks. She also suffered other minor mistreatment. For this, she received $123,866 in compensatory damages, $170,000 for noneconomic damages, and almost 2.7 million dollars in punitive damages! The total verdict was a few dollars shy of three million dollars! In the majority opinion, this Court upholds over 2-1/2 million dollars of that verdict, including the outrageous sum of $2,232,740 in punitive damages. I strongly dissent because I believe that punitive damages are not recoverable for West Virginia Human Rights Act and Workers’ Compensation Act violations.
The majority declines to address the issue of whether the Human Rights Act and Workers’ Compensation Act violations provide for
In addition to an order of reinstatement and back pay, the Human Rights Act provides that a court may order “other legal and equitable relief as the court deems appropriate” for violations of Human Rights Act discrimination provisions.
It is clear that the appellee was treated badly by the appellant, and that the appellant should have to pay her a fair amount of damages. However, the operative word here is “fair.” The appellee was awarded $293,866.00 in compensatory and noneconomic damages for missing essentially four weeks of work and for the appellant‘s other mistreatment of her, and I do not believe that this was improper, and it seems fair. But even if a punitive damages award were authorized here, an award of $2,232,740 is simply too much under the facts of this case. The task of determining what constitutes an excessive punitive damages award, in light of due process guarantees, is extremely difficult, and not given to bright line rules. Admittedly, I do not have all the answers in making such a determination, and frankly, I can‘t presently state what the terms of a good rule should be. I am reminded, however, of United State Supreme Court Justice Potter Stewart‘s comment that although he could not define hard-core pornography, “I know it when I see it.”2 Likewise, I know an excessive punitive damages award when I see one, and I see one here. I would call this one hard-core. Therefore, I dissent.
Notes
It shall be a discriminatory practice within the meaning of section one of this article [W. Va. Code § 23-5A-1] for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee‘s former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position.