PRESENT: All the Justices
VICTORIA COALSON OPINION BY v. Record No. 130837 JUSTICE S. BERNARD GOODWYN February 27, 2014 VICTOR CANCHOLA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D. White, Judge
In this appeal, we consider whether the circuit court erred
in remitting a jury’s award of punitive damages.
Background
On March 1, 2011, Victoria Coalson (Coalson) and Michael
Stemke (Stemke) each filed lawsuits in the Circuit Court of
Fairfax County against Victor Canchola (Canchola) seeking
compensatory and punitive damages for personal injuries
sustained in an automobile accident. The circuit court
consolidated Coalson’s and Stemke’s actions.
At the conclusion of the trial, the jury awarded Coalson
$5,600 in compensatory damages and $100,000 in punitive damages
against Canchola. Stemke received $14,000 in compensatory
damages and $100,000 in punitive damages. The circuit court
entered a final order on January 11, 2013, but the court
suspended the order for fourteen days to give the parties an
opportunity to file post-trial motions and submit an amended
final order if they wished. Canchola filed a post-trial motion
for remittitur of both punitive damages awards, arguing that the awards were excessive under Virginia law and the Due Process
Clause of the Fourteenth Amendment.
The circuit court found that Canchola’s conduct was
egregious. Nevertheless, it noted “a significant disparity”
between the plaintiffs’ compensatory damages awards, although
both punitive damages awards were the same. Based on this
disparity, it concluded that Coalson’s award was arbitrarily
made. The circuit court remitted Coalson’s punitive damages to
$50,000. While it recognized that “[t]here is no bright line or
formula to be applied[,]” the court reduced the award to “less
than a ten percent ratio.”
The circuit court entered an order granting Canchola’s
motion for remittitur regarding Coalson’s punitive damages award
on February 8, 2013. On February 28, 2013, the court entered an
amended final order reflecting its remittitur ruling, noting
Coalson’s acceptance under protest, summarizing the proceedings,
denying Coalson’s motion to reconsider and awarding post-
judgment interest. Coalson filed a notice of appeal with the
circuit court on March 21, 2013. 1
1 Rule 5:9(a) states that a party must file her notice of appeal within 30 days of entry of the trial court’s final order. Rule 5:5(b) provides for an extension of time to file a notice of appeal if the trial court “modifie[s]” its final order. The rule also states that “the time for filing the notice of appeal shall be computed from the date of final judgment entered following such modification.” Rule 5:5(b). The circuit court’s February 8, 2013 order granting Canchola’s motion for remittitur
2 Facts
At approximately 6:30 p.m. on February 15, 2009, Canchola
was driving and talking on his cellular telephone when he
attempted to turn left at an intersection on Waxpool Road in
Loudoun County. He turned in front of a vehicle driven by
Coalson, who had the right of way and was unable to stop before
colliding with the passenger door of Canchola’s vehicle.
Coalson and her passenger, Stemke, suffered minor injuries.
Canchola, who was intoxicated at the time of the accident,
had an extensive record of driving while intoxicated. Between
1991 and 1997, Canchola was convicted six times of driving while
intoxicated and once of driving with a suspended license. In
1996, his driver’s license was revoked. In 2004, he was
convicted yet again of driving while intoxicated in California.
The night before the accident, Canchola stayed at a hotel
in Ashburn, Virginia, with his girlfriend Lori Rudegeair
(Rudegeair), who was visiting from Pennsylvania. At brunch in
Alexandria on the day of the accident, Canchola drank several
modified the original judgment and tolled the thirty-day time limit, but it was not a final order because Coalson could still exercise her right to accept remittitur under protest pursuant to Code § 8.01-383.1. See Ragan v. Woodcroft Village Apartments, 255 Va. 322, 327, 497 S.E.2d 740, 743 (1998) (defining “final order or judgment” as “one that disposes of the whole subject of the case and gives all relief contemplated”). On February 28 the circuit court entered an amended final judgment noting Coalson’s acceptance under protest, and Coalson filed her notice within thirty days of the February 28 order, making her notice timely.
3 glasses of champagne. Afterward, Canchola and Rudegeair walked
to a nearby pub, and Canchola drank two rounds of his favorite
drink combination, a vodka martini and light beer. They left
the pub sometime after 3:30 p.m. when a police officer called
Canchola to inform him that a vehicle Canchola had reported
missing was located in Leesburg, Virginia. Because Canchola
slurred his speech while speaking to the police officer, the
officer advised Canchola not to drive when he came to pick up
the vehicle.
Despite the warning, Canchola drove Rudegeair’s car to
Leesburg. He stopped approximately a block from where he was
supposed to meet the officer and had Rudegeair drive the rest of
the way. After Canchola finished speaking to the officer and
claiming the vehicle, which was found in good condition, and
after having been warned by the officer not to drive, Canchola
left the scene as Rudegeair’s passenger. They drove a short
distance, waited for a few minutes and returned to Canchola’s
vehicle after the police officer left. Canchola then drove his
vehicle to another bar. Rudegeair followed in her car. There,
Canchola drank at least two rounds of the vodka and light beer
combination and three additional shots of liquor within a short
period of time.
Canchola and Rudegeair left the bar to return to the hotel
in separate vehicles. As Canchola approached the intersection
4 where he was to turn left into the hotel entrance, he began a
conversation on his cellular telephone. He was engaged in that
conversation when he turned left in front of the vehicle driven
by Coalson. According to uncontradicted testimony of an expert
toxicologist, Canchola’s blood alcohol content was almost twice
the legal limit at the time of the accident.
After Coalson collided with Canchola, Canchola removed his
vehicle from the scene of the accident, parked it and left in
Rudegeair’s vehicle. He was subsequently arrested upon
returning to the hotel. Canchola urged Rudegeair not to tell
anyone that he had been driving his vehicle when the accident
occurred. Rudegeair initially lied to police but later told the
truth under oath.
Analysis
Coalson argues that the circuit court erred in remitting
her punitive damages award because the circuit court’s decision
was based upon comparing her punitive damages award to Stemke’s
punitive damages award and upon the proportionality of her
punitive damages award in relation to her compensatory damages
award. Coalson asserts that proportionality is not the only
consideration in determining the excessiveness of punitive
damages under Virginia law and that a higher ratio between
compensatory and punitive damages was proper in this case due to
“the egregiousness of [Canchola’s] conduct and the potential
5 harm that could have resulted from his actions.” Coalson
emphasizes that neither this Court nor the United States Supreme
Court has created a “bright-line test.” Although she does not
base her appeal on constitutional grounds, Coalson maintains
that Virginia’s remittitur analysis for punitive damages is
“framed in, and derived from” federal constitutional law.
Consequently, she urges the Court to consider “potential harm”
as well as actual harm in reinstating the jury’s punitive
damages award.
Canchola contends that the circuit court properly
considered and applied all of the remittitur factors and
constitutional guidelines before granting his motion. He
disputes Coalson’s assertion that the Court should consider
“hypothetical damages” she could have sustained. He argues that
considering what could have happened is not supported by this
Court’s jurisprudence and would require a jury to engage in
improper speculation. Canchola claims that in evaluating the
reprehensibility of his actions, the proper focus should be on
his conduct at the time of the accident, not on “every unsavory
act [he] committed over time.” According to Canchola, Coalson
places too much emphasis on punishment and reprehensibility and
ignores proportionality.
“The purpose of punitive damages is to provide ‘protection
of the public, . . . punishment to [the] defendant, and . . . a
6 warning and example to deter him and others from committing like
offenses.’” Huffman v. Love, 245 Va. 311, 315, 427 S.E.2d 357,
361 (1993) (quoting Baker v. Marcus, 201 Va. 905, 909, 114
S.E.2d 617, 620 (1960)). This Court has observed that punitive
damages are meant to warn, not to compensate the plaintiff. Doe
v. Isaacs, 265 Va. 531, 539, 579 S.E.2d 174, 179 (2003). A
punitive damages award is generally left to the jury’s
discretion because there is no set standard for determining the
amount of punitive damages. Worrie v. Boze, 198 Va. 533, 544,
95 S.E.2d 192, 201 (1956).
To justify remittitur, a jury’s award must be so excessive
that it shocks the conscience of the trial court, indicating
that the jury’s decision was motivated by “passion, corruption
or prejudice.” Condominium Servs., Inc. v. First Owners’ Ass’n
of Forty Six Hundred Condo., Inc., 281 Va. 561, 580, 709 S.E.2d
163, 175 (2011) (quoting Smithey v. Sinclair Refining Co., 203
Va. 142, 146, 122 S.E.2d 872, 875-76 (1961)). When a trial
court considers whether to remit a jury’s punitive damages
award, its review of the punitive damages award should consider
the “reasonableness between the damages sustained and the amount
of the award and the measurement of punishment required, whether
the award will amount to a double recovery, the proportionality
between the compensatory and punitive damages, and the ability
7 of the defendant to pay.” Poulston v. Rock, 251 Va. 254, 263,
467 S.E.2d 479, 484 (1996) (citations omitted).
In evaluating whether punitive damages were properly
remitted, this Court performs a de novo review, examines the
record independently and gives “substantial weight” to the trial
court’s action. Baldwin v. McConnell, 273 Va. 650, 657, 643
S.E.2d 703, 706 (2007) (quoting Poulston, 251 Va. at 263, 467
S.E.2d at 484).
The circuit court reduced the amount of Coalson’s punitive
damages award because the jury awarded the same amount in
punitive damages to Coalson as it did to Stemke despite their
different compensatory damages awards. Also, the circuit court
ruled that the 1:17.86 ratio between Coalson’s compensatory and
punitive damages was too high.
We have not previously addressed whether it is proper to
compare punitive damages awards in evaluating excessiveness.
However, in Allied Concrete Co. v. Lester, 285 Va. 295, 312, 736
S.E.2d 699, 708 (2013), this Court held that a trial court may
not compare verdicts to evaluate the excessiveness of
compensatory damages. Likewise, in John Crane, Inc. v. Jones,
274 Va. 581, 595, 650 S.E.2d 851, 858 (2007), the Court declined
to compare verdicts in determining whether compensatory damages
were excessive.
8 We hold that the same rationale stated in John Crane, Inc.
is true regarding comparing punitive damages awards:
“[Comparing verdicts] is not probative of whether a verdict is
excessive; rather that determination must be made based on the
facts and circumstances of each case.” Id. The circuit court’s
consideration of Coalson’s and Stemke’s relative ratios of
compensatory damages to punitive damages as a basis for granting
remittitur was error. See Allied Concrete Co., 285 Va. at 312,
736 S.E.2d at 708. 2
We agree with the circuit court that Canchola’s conduct was
egregious. Canchola was driving while intoxicated and without a
license, which had been revoked because of previous instances of
driving while intoxicated. Despite having at least seven
convictions for driving while intoxicated on his record,
Canchola drove on several occasions on the day of the accident
while drinking alcohol throughout the day. He ignored a police
officer’s warning not to drive and engaged in deception so that
the officer would not discover he was driving, after which he
drank even more and then attempted to drive again. After
causing an accident that could have resulted in serious
2 We note that federal courts sometimes compare verdicts to evaluate whether punitive damages are excessive as a matter of federal constitutional law. See, e.g., Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 154 (4th Cir. 2008) (comparing punitive damages awards in other Fair Credit Reporting Act cases).
9 injuries, Canchola fled the scene and asked his girlfriend to
lie about his involvement.
The jury was instructed that it could award Coalson damages
to compensate her for her injuries, including bodily injuries,
pain and mental anguish, inconvenience and medical expenses.
The court further instructed the jury that if it awarded Coalson
compensatory damages, it could also award punitive damages if it
found that Canchola “acted under circumstances amounting to a
willful and wanton disregard for the plaintiffs’ rights.” The
punitive damages instruction clearly stated that the purpose of
punitive damages was to punish Canchola and to “prevent others
from acting in a similar way.”
Coalson’s punitive damages are reasonably related to her
actual damages and to the degree of necessary punishment, which
in this case is great. See Philip Morris Inc. v. Emerson, 235
Va. 380, 414, 368 S.E.2d 268, 287 (1988). “Given the clear
determination of the basis for each award and the ample evidence
supporting each award, our independent review of the record does
not suggest double recovery in this case.” Baldwin, 273 Va. at
659, 643 S.E.2d at 707. The ratio of Coalson’s compensatory
damages to punitive damages awarded by the jury is 1:17.86.
This is high, but given the reprehensible and dangerous nature
of Canchola’s conduct, it is not “unreasonable or strikingly out
of proportion.” Id.; Poulston, 251 Va. at 263, 467 S.E.2d at
10 484. The court expressly stated that the parties did not
present evidence on Canchola’s ability to pay. 3 See Condominium
Servs., 281 Va. at 581, 709 S.E.2d at 175 (“[A defendant who has
failed to present evidence of his ability to pay at trial]
cannot prevail before this Court on [his] claim that the amount
of punitive damages would be oppressive.”).
Canchola’s conduct was egregious enough to warrant a
punitive damages award, and the amount of punitive damages
awarded by the jury does not shock the Court’s conscience.
Virginia precedent indicates that the circuit court should not
have remitted the punitive damages award.
It is not clear from the record whether the circuit court
granted Canchola’s motion for remittitur on state law or federal
constitutional law grounds. Thus, we will analyze the award
considering relevant federal constitutional law as well.
The United States Supreme Court has prescribed three
guidelines for appellate courts to use in reviewing whether
punitive damages are so excessive as to violate a defendant’s
right to due process: “(1) the degree of reprehensibility of the
defendant’s misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive
3 Canchola acknowledged the same in his motion for remittitur and during oral argument before the circuit court.
11 damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 418 (2003). The Supreme Court has
further provided factors for evaluating the first guideline,
which is the most important of the three:
[W]hether[] the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Id. at 419.
These considerations weigh against remittitur on due
process grounds. Virginia certainly has an interest in
promoting public safety through prevention and deterrence of
driving while intoxicated. See BMW of North America, Inc. v.
Gore, 517 U.S. 559, 568 (1996) (“[T]he federal excessiveness
inquiry appropriately begins with an identification of the state
interests that a punitive award is designed to serve.”).
Although the collision was an accident, Canchola deliberately
chose to drive while severely intoxicated, which resulted in
physical injury. Canchola’s determined persistence to drive
while intoxicated and his reckless disregard for the safety of
others is evidenced by his seven prior driving while intoxicated
convictions and by his behavior on the day of the accident. See
id. at 576-77 (“[E]vidence that a defendant has repeatedly
12 engaged in prohibited conduct while knowing or suspecting that
it was unlawful would provide relevant support for an argument
that strong medicine is required to cure the defendant’s
disrespect for the law.”). Furthermore, a defendant’s conduct
that endangers many is more reprehensible than conduct that only
endangers a few. Philip Morris USA v. Williams, 549 U.S. 346,
357 (2007). Canchola puts other drivers at risk every time he
drinks and drives.
The Supreme Court has repeatedly stated that ratios between
actual or potential harm and punitive damages should generally
be within single digits to satisfy due process requirements.
State Farm, 538 U.S. at 425. Nevertheless, it has also
recognized that higher ratios may be constitutional where a
defendant’s actions are exceptionally reprehensible but result
in small economic damage. See id. (reaffirming that there are
no “rigid benchmarks” and indicating that courts should consider
each case “based upon the facts and circumstances of the
defendant’s conduct and the harm to the plaintiff”); see also
Saunders, 526 F.3d at 154 (citing federal appellate court
decisions upholding higher ratios). Driving while intoxicated
could result in death, and it was fortunate that Coalson and
Stemke suffered relatively minor injuries. “While the circuit
court observed what it took to be a significant disparity
between the punitive award and the compensatory award, that
13 contrast ‘dissipates when one considers the potential loss to
[Coalson] . . . .’” TXO Prod. Corp. v. Alliance Res. Corp., 509
U.S. 443, 449-51, 462 (1993) (upholding a ratio of 1:526).
In upholding a ratio of 1:80 in Saunders, the Fourth
Circuit observed that rigidly adhering to a single digit ratio
in all cases could sometimes prevent punitive damages from
fulfilling their purposes of punishment and deterrence. 526
F.3d at 154. For this reason, the court determined that
remitting the punitive damages award in that case “would leave
little deterrent or punitive effect.” Id. The 1:17.86 ratio in
this case is not excessive, for Canchola has demonstrated a need
for stronger medicine to cure his disrespect for the law.
Additionally, a comparison of criminal and civil penalties
for habitually driving while intoxicated and for driving with a
revoked license supports the jury’s punitive damages award. The
Commonwealth punishes repeated instances of driving while
intoxicated by increasing fines and mandatory sentences. See
Code §§ 18.2-266 and -270. In addition to the statutory scheme
for punishing driving while intoxicated, the legislature has
prescribed punishments for habitual offenders in the form of
license revocation, mandatory safety courses and increasing
penalties for driving without a license. See, e.g., Code §§
46.2-389 (mandatory revocation of license upon conviction of
driving while intoxicated); 46.2-355.1 (mandatory participation
14 in safety course upon second offense of driving with revoked
license); 46.2-391 (mandatory three-year revocation for multiple
convictions of driving while intoxicated); see also § 46.2-357
(minimum one year and maximum five years’ imprisonment for
felony offense of driving with revoked license while
intoxicated). These penalties demonstrate the seriousness with
which Virginia views the act of driving while intoxicated with a
suspended or revoked license. See State Farm, 538 U.S. at 428
(noting that criminal penalties are less useful for determining
the precise amount of a punitive damages award). Upon
consideration of the constitutional guidelines provided by the
United States Supreme Court, we conclude that the jury’s
punitive damages award is not excessive under the Due Process
Conclusion
Therefore, we hold that the circuit court erred in granting
Canchola’s motion for remittitur because Coalson’s punitive
damages award was not excessive under Virginia law nor did it
offend Canchola’s due process rights. Accordingly, the judgment
of the circuit court will be reversed, the jury verdict awarding
Coalson $100,000 in punitive damages will be reinstated, and
final judgment will be entered on the verdict.
Reversed and final judgment.
15 JUSTICE McCLANAHAN, dissenting.
The jury awarded Coalson $100,000 in punitive damages,
which was nearly 18 times the amount of her compensatory damage
award of $5,600. I would affirm the judgment of the circuit
court ordering remittitur of a portion of the punitive damages
and reducing the award to $50,000, still almost 9 times the
amount of compensatory damages.
While not expressly overruling this Court’s precedent, the
majority opinion makes clear that the “reasonableness between
the damages sustained and the amount of the award” as well as
“the proportionality between the compensatory and punitive
damages,” Baldwin v. McConnell, 273 Va. 650, 658, 643 S.E.2d
703, 706 (2007), are hardly relevant to the circuit court’s
consideration of whether to remit a portion of a punitive
damages award. What is also clear is that the majority affords
little weight to the circuit court’s action, rather than the
“substantial weight” the circuit court is due. Id. at 657, 643
S.E.2d at 707 (quoting Poulston v. Rock, 251 Va. 254, 263, 467
S.E.2d 479, 484 (1996)).
Following this Court’s previous directives, the circuit
court employed the proper analysis in considering Canchola’s
motion for remittitur. In reaching its decision, the circuit
court explained,
16 I did take into consideration the Virginia Supreme Court factors; reasonableness between the damages sustained and the amount of the award, the measurement of punishment required, whether the award will amount to a double recovery, the proportionality between the compensatory and punitive damages, and the ability of the Defendant to pay, such that there is any evidence on those items for me.
These are precisely the factors this Court has repeatedly
instructed circuit courts to consider. See Baldwin, 273 Va. at
658, 643 S.E.2d at 707 (judicial review upon motion for
remittitur “requires” consideration of the following: 1.
reasonableness between damages sustained and amount of award;
2. measurement of punishment required; 3. whether award will
amount to double recovery; 4. proportionality between the
compensatory and punitive damages; and 5. ability of defendant
to pay); see also Condominium Servs., Inc. v. First Owners’
Ass’n of Forty Six Hundred Condo., Inc., 281 Va. 561, 580, 709
S.E.2d 163, 175 (2011); Poulston, 251 Va. at 263, 467 S.E.2d at
484.
Upon consideration of these factors, the circuit court
concluded the punitive damages award to Coalson was excessive in
relation to her compensatory damages. Finding the award
“arbitrary,” the court noted it was “troubling to [it] that
there is a significant disparity between the compensatory damage
award for one Plaintiff, and the compensatory damage award for
17 the other Plaintiff,” while the “punitive damage award, in each
of the cases, is one hundred thousand dollars.” Furthermore,
“considering the proportionality between the compensatory and
the punitive damage award[ ]” to Coalson, the circuit court
found the almost 1-to-18 ratio disproportionate and excessive,
particularly in light of the 1-to-7 ratio the compensatory
damages bore to the punitive damages in the verdict for Stemke. 1
The amount of the circuit court’s remittitur was certainly
consistent with prior precedent. This Court has found a
proportionality of punitive damages 2.5 times the compensatory
damages an acceptable ratio, Poulston, 251 Va. at 263, 467
S.E.2d at 484; Condominium Servs., Inc., 281 Va. at 580, 709
S.E.2d at 175, as well as a proportionality of punitive damages
approximately 6.6 and 6.7 times the compensatory damages, Philip
Morris, Inc. v. Emerson, 235 Va. 380, 414, 368 S.E.2d 268, 287
(1988). In Stemke’s case, the punitive damages awarded were
approximately 7 times his compensatory damages, which the
circuit court found reasonable. In light of the ratios of
punitive to compensatory damage awards previously found
acceptable by this Court and the ratio found acceptable by the
circuit court in Stemke’s case, which involved the same accident
and conduct of the defendant, I believe the circuit court
1 While the circuit court found Coalson’s award excessive, it denied the motion for remittitur of Stemke's award.
18 properly ordered the remittitur of a portion of Coalson’s
punitive damages and reduction of her award from an amount that
was nearly 18 times her compensatory damages to an amount that
was nearly 9 times her compensatory damages.
I disagree that it was error for the circuit court to
consider the punitive and compensatory damages awarded to Stemke
in determining the reasonableness between the damages sustained
by Coalson and the amount of her punitive damage award. The
compensatory damages awarded to Stemke were 2.5 times more than
the compensatory damages awarded to Coalson, yet, as the circuit
court observed, the punitive damages awarded to each were the
same, leading the circuit court to conclude the amount of
punitive damages awarded to Coalson was arbitrary rather than
bearing a reasonable relation to the compensatory damages and
the punishment required. See Stubbs v. Cowden, 179 Va. 190,
201, 18 S.E.2d 275, 280 (1942)(“The damages awarded should bear
some reasonable proportion to the real damages sustained and to
the measure of punishment required; otherwise, they indicate
prejudice or partiality.”). 2 As compared to Stemke’s punitive
damage verdict, which was a little over 7 times the compensatory
2 The requirement that the punitive damages bear a reasonable relationship to the actual damages has led this Court to remand an award of punitive damages to the circuit court for reconsideration when it has reversed a portion of the compensatory damages. Little v. Cooke, 274 Va. 697, 719, 652 S.E.2d 129, 142 (2007).
19 damage verdict, the jury verdict for Coalson against the same
defendant for the same conduct amounted to nearly 18 times the
verdict. In other words, the jury punished Canchola more
severely for the injuries sustained by Coalson than for the
injuries sustained by Stemke arising from the same accident. If
not arbitrary, the award was based on partiality toward Coalson
or prejudice against Canchola.
This Court’s prior holdings that prohibit the comparison of
jury verdicts awarding compensatory damages are not applicable.
In John Crane, Inc. v. Jones, 274 Va. 581, 595, 650 S.E.2d 851,
858 (2007) and Rose v. Jaques, 268 Va. 137, 159, 597 S.E.2d 64,
77 (2004), this Court rejected the “average verdict rule,” which
compares statewide or nationwide jury verdicts to reach an
“average verdict,” because such a rule is not relevant to the
extent of actual pain and suffering experienced by the
plaintiff. In Allied Concrete Co. v. Lester, 285 Va. 295, 312,
736 S.E.2d 699, 708 (2013), the Court relied upon its holdings
in John Crane and Rose to conclude that it was error for the
trial court to compare injuries suffered by the plaintiffs. 3
However, the rationale that a verdict for one person’s pain and
suffering is not a reasonable basis on which to judge the
3 As I stated in Allied Concrete, 285 Va. at 316 n.3, 736 S.E.2d at 710 n.3 (McClanahan, J., concurring in part and dissenting in part), I did not agree that the trial court in that case engaged in improper verdict comparison.
20 excessiveness of a verdict for another person’s pain and
suffering can only apply when the issue involves the
excessiveness of a compensatory damage award. Ignoring the
rationale of these holdings, the majority has adopted a bright-
line rule forbidding any comparison of verdicts, even when such
a comparison is actually probative of the analysis and dictated
by reason.
Indeed, our own Court compares ratios found acceptable in
other cases that involve not only different plaintiffs, but also
different defendants, different conduct, and different types of
actions entirely. See Baldwin, 273 Va. at 659, 643 S.E.2d at
707 (noting the punitive damage award approved in Poulston was
two and one-half times the compensatory award); Condominium
Servs., Inc., 281 Va. at 581, 709 S.E.2d at 175 (noting the
punitive damage award in Poulston of 2.5 times the compensatory
award and a punitive damage award in Philip Morris of 6.6 times
the compensatory award). In this case involving a single
automobile accident and a consolidated trial, the circuit court
compared the ratios as between two injured plaintiffs against
one defendant who caused their injuries. Arguably, then, the
circuit court’s comparison of the verdicts in this case was more
probative to the issue of reasonableness and proportionality,
than the comparisons this Court has made to ratios in unrelated
cases.
21 Presumably, we will “‘give substantial weight to the trial
court’s action and affirm it, unless, from our view of the
record, the trial court acted improperly.’” Baldwin, 273 Va. at
657, 643 S.E.2d at 706 (quoting Poulston, 251 Va. at 263, 467
S.E.2d at 484). Nevertheless, despite the circuit court’s
faithful application of the law and the obvious disparity of
ratios of compensatory to punitive damages between the Coalson
and Stemke awards, each of which were based on the same conduct
of Canchola, the majority finds the circuit court’s action
improper. In Allied Concrete, 285 Va. at 317, 736 S.E.2d at
711, I expressed my belief that “for all practical purposes the
last nail in the coffin of remittitur [of compensatory damages]
has been driven.” It appears that remittitur of punitive
damages has suffered the same fate.