JUSTICE DAVIS delivered the Opinion of the Court.
4
. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
5
. “In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the circuit
court's underlying factual findings under a clearly erroneous standard. Questions of law
are subject to de novo review.” Syllabus point 2, Walker v. West Virginia Ethics
Commission, 201 W. Va. 108, 492 S.E.2d 167 (1997).
6
. “'Preemption is a question of law reviewed de novo.' Hartley Marine
Corp. v. Mierke, 196 W. Va. 669, 673, 474 S.E.2d 599, 603 (1996), citing Kollar v. United
Transportation Union, 83 F.3d 124, 125 (5th Cir. 1996).” Syllabus point 2, Lontz v. Tharp,
220 W. Va. 282, 647 S.E.2d 718 (2007) (per curiam).
7
. “An action for wrongful termination under W. Va. Code § 23-5A-1
(1981) is not pre-empted by federal labor law.” Syllabus point 2 of Yoho v. Triangle PWC,
Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985).
8
. An action for wrongful termination under W. Va. Code § 23-5A-3
(1990) (Repl. Vol. 2005) is not pre-empted by federal labor law.
9
. “Collateral estoppel will bar a claim if four conditions are met: (1) The
issue previously decided is identical to the one presented in the action in question; (2) there
is a final adjudication on the merits of the prior action; (3) the party against whom the
doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party
against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the
prior action.” Syllabus point 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
10
. “The application of the doctrine of collateral estoppel is discretionary
with the trial court[.]” Syllabus point 7, in part, Conley v. Spillers, 171 W. Va. 584, 301
S.E.2d 216 (1983).
11
. An employee who asserts a claim alleging workers' compensation
discrimination in accordance with W. Va. Code § 23-5A-1, et seq., may recover damages
for front pay in lieu of reinstatement. Whether the facts of a particular case warrant an
award of front pay in lieu of reinstatement is a decision committed to the circuit court, and
such a determination will be reviewed for an abuse of discretion.
12
. “It is the peculiar and exclusive province of a jury to weigh the
evidence and to resolve questions of fact when the testimony of witnesses regarding them
is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.”
Syllabus point 2, Skeen v. C & G Corp., 155 W. Va. 547, 185 S.E.2d 493 (1971).
13
. “Unless a wrongful discharge is malicious, the wrongfully discharged
employee has a duty to mitigate damages by accepting similar employment to that
contemplated by his or her contract if it is available in the local area, and the actual wages
received, or the wages the employee could have received at comparable employment where
it is locally available, will be deducted from any back pay award; however, the burden of
raising the issue of mitigation is on the employer.” Syllabus point 2, Mason County Board
of Education v. State Superintendent of Schools, 170 W. Va. 632, 295 S.E.2d 719 (1982).
14
. “Upon petition, this Court will review all punitive damages 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.” Syllabus point 5, Garnes v. Fleming Landfill, Inc.,
186 W. Va. 656, 413 S.E.2d 897 (1991).
15
. “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.” Syllabus point 5, Alkire v. First National Bank of Parsons, 197
W. Va. 122, 475 S.E.2d 122 (1996).
16
. When reviewing an award of punitive damages in accordance with
Syllabus point 5 of Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897
(1991), and Syllabus point 5 of Alkire v. First National Bank of Parsons, 197 W. Va. 122,
475 S.E.2d 122 (1996), this Court will review de novo the jury's award of punitive damages
and the circuit court's ruling approving, rejecting, or reducing such award.
17
. “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.”Syllabus point 3, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991).
18
. “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 defendant, 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.
Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the jury know them, but that will require downward adjustment by the trial court through remittitur because of factors that would be prejudicial to the defendant if admitted at trial, such as criminal sanctions imposed or similar lawsuits pending elsewhere against the defendant. However, at the option of the defendant, or in the sound discretion of the trial court, any of the above factors may also be presented to the jury.” Syllabus point 4, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991).
19
. “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).” Syllabus point 7, Alkire v. First National Bank
of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996).
20
. “Every post-trial analysis as to the amount of the punitive damage
award should be conducted by the trial court exclusively 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.” Syllabus point
6, Alkire v. First National Bank of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996).
21
. “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.”
Syllabus point 15, 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).
Davis, Justice:
The appellant herein and defendant below, Rivers Edge Mining, Inc.
(hereinafter referred to as “Rivers Edge”), appeals from an order entered October 17, 2007,
by the Circuit Court of Boone County. By that order, the circuit court denied Rivers Edge's
motions for judgment as a matter of law, for a new trial, or to alter or amend judgment and
upheld the $1,855,107 jury verdict rendered in favor of the appellee herein and plaintiff
below, George M. Peters (hereinafter referred to as “Mr. Peters”). On appeal to this Court,
Rivers Edge assigns error to the circuit court's rulings (1) determining that Mr. Peters's
claims under W. Va. Code § 23-5A-1 (1978) (Repl. Vol. 2005) and W. Va. Code § 23-5A-
3(b) (1990) (Repl. Vol. 2005) were not preempted; (2) concluding that collateral estoppel
did not bar Mr. Peters's claims; (3) permitting the jury to award Mr. Peters damages for
front pay; and (4) upholding the jury's award of punitive damages. Upon a review of the
parties' arguments, the record presented for appellate consideration, and the pertinent
authorities, we affirm the decision of the Boone County Circuit Court.
1. Do you find that Plaintiff George Peters'[s]
pursuit or receipt of workers' compensation benefits was a
substantial or motivating factor in his discharge from
employment?
X Yes No
2. Do you find that the defendant [Rivers Edge]
unlawfully failed to reinstate George Peters to his former
position?
X Yes No
The jury then responded in the negative to the inquiry asking,
3. Do you find that Rivers Edge Mining Inc., has
proven it would have discharged Mr. Peters, notwithstanding
his pursuit or receipt of workers' compensation benefits?
Yes
X No
Having made these findings, the jury awarded Mr. Peters a total of $885,107 in
compensatory damages. Specifically, the jury awarded compensatory damages of $171,697
for back pay; $513,410 for front pay; and $200,000 for aggravation, inconvenience,
humiliation, embarrassment and loss of dignity. The jury further found that Mr. Peters was
entitled to an award of punitive damages of $1,000,000.
Rivers Edge then requested the circuit court to review the propriety and
amount of the punitive damages awarded by the jury. By order entered June 29, 2007, the
circuit court denied Rivers Edge's requested relief and upheld the jury's punitive damages
award. The circuit court then entered judgment in favor of Mr. Peters by judgment order
entered August 2, 2007. (See footnote 10) On August 15, 2007, Rivers Edge moved for judgment as a
matter of law, for a new trial, or to alter or amend the judgment. The circuit court denied
all three motions by order entered October 17, 2007. From these adverse rulings, Rivers
Edge now appeals to this Court.
[w]hen this Court reviews a trial court's order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the
evidence was such that a reasonable trier of fact might have
reached the decision below. Thus, when considering a ruling
on a renewed motion for judgment as a matter of law after trial,
the evidence must be viewed in the light most favorable to the
nonmoving party.
Syl. pt. 2, Fredeking v. Tyler, ___ W. Va. ___, ___ S.E.2d ___ (No. 34150 Feb. 27, 2009).
Rivers Edge also appeals from the circuit court's ruling denying its motion for a new trial. When reviewing a circuit court's decision on such a motion, we have held that
“[t]he ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).
Syl. pt. 2, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., ___ W. Va. ___, 672 S.E.2d 345 (2008). Accord Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995) (“We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.”). See also State v. Crouch, 191 W. Va. 272, 275, 445 S.E.2d 213, 216 (1994) ( “The question of whether a new trial should be granted is within the sound discretion of the trial court and is reviewable only in the case of abuse.”). Furthermore,
[i]n determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor
of the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved.Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).
Lastly, Rivers Edge challenges the circuit court's decision denying its motion
to alter or amend the judgment.
The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.
Syl. pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998). Thus, to the extent that Rivers Edge assigns error to the circuit court's determination of questions of law involved in this case, our review to those assignments of error is de novo: “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”). Where, however, Rivers Edge's argument pertains to the circuit court's rulings in the underlying trial, generally, we employ a multifaceted review:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997). Accord Syl. pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996) (“This
Court reviews the circuit court's final order and ultimate disposition under an abuse of
discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.”). See also Syl. pt. 3, State v. Vance,
207 W. Va. 640, 535 S.E.2d 484 (2000) (“In reviewing challenges to findings and rulings
made by a circuit court, we apply a two-pronged deferential standard of review. We review
the rulings of the circuit court concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard, and we review the circuit court's
underlying factual findings under a clearly erroneous standard. Questions of law are
subject to a de novo review.”).
Mindful of these standards, (See footnote 11) we proceed to consider the parties' arguments.
I'm going to deny your motion . . . I do not think that we're going to be asking the jury to interpret the contract as this _ all of this preemption law is about, and I think that we're just going to be asking them to settle factual matters. . . . [Y]our [Rivers Edge's] motion is denied. It's not preempted.
The circuit court correctly decided this issue, and we agree with the circuit court's
conclusion: Mr. Peters's claims of workers' compensation discrimination are not preempted
by federal law.
At the outset, we note that “'[p]reemption is a question of law reviewed de
novo.' Hartley Marine Corp. v. Mierke, 196 W. Va. 669, 673, 474 S.E.2d 599, 603 (1996),
citing Kollar v. United Transportation Union, 83 F.3d 124, 125 (5th Cir. 1996).” Syl. pt.
2, Lontz v. Tharp, 220 W. Va. 282, 647 S.E.2d 718 (2007) (per curiam). With respect to the
case sub judice, we previously have considered and decided the issue of whether claims
alleging workers' compensation discrimination are preempted by federal law. In Syllabus
point 2 of Yoho v. Triangle PWC, Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985), we
succinctly held that “[a]n action for wrongful termination under W. Va. Code § 23-5A-1
(1981) is not pre-empted by federal labor law.” This case remains good law and is
determinative of our resolution of the issues presented by this assignment of error. (See footnote 12)
In his complaint, Mr. Peters alleged, in his “First Cause of Action,” that “[t]he
defendants' [Eastern Associated Coal, LLC; Rivers Edge Mining, Inc.; Bennie Milam; and
Peabody Holding Company, Inc.] actions constitute an unlawful retaliatory discharge
motivated, in whole or in part, by the plaintiff's [Mr. Peters's] attempt to receive benefits
from the Workers' Compensation Division of the West Virginia Bureau of Employment
Programs, in violation of § 23-5A-1 of the West Virginia Code, as amended.” Thus, Mr.
Peters has brought an “action for wrongful termination under W. Va. Code § 23-5A-1.”
Syl. pt. 2, in part, Yoho, 175 W. Va. 556, 336 S.E.2d 204. Based upon our clear holding in
Syllabus point 2 of Yoho, we conclude that Mr. Peters's claim alleging workers'
compensation discrimination under W. Va. Code § 23-5A-1 is not preempted. Accordingly,
we affirm the circuit court's ruling similarly finding that Mr. Peters's workers'
compensation discrimination claim is not preempted.
Our inquiry does not end here, however, because Mr. Peters also alleged in
his complaint that his termination by Rivers Edge's additionally violated W. Va. Code § 23-
5A-3. In his “Second Cause of Action,” Mr. Peters asserted that “[t]he defendants refused
to reinstate the plaintiff to his employment, as required by West Virginia Code § 23-5A-
3(b).” (See footnote 13) Our holding in Yoho, however, only addresses actions brought under W. Va. Code
§ 23-5A-1. The Legislature did not enact W. Va. Code § 23-5A-3 until 1990, which was
five years after we decided Yoho. Thus, we did not have occasion to consider the
preemption issue vis-a-vis W. Va. Code § 23-5A-3 in Yoho.
Nevertheless, it is apparent from the face of the subject statutes that both
W. Va. Code § 23-5A-1 and W. Va. Code § 23-5A-3 afford injured workers protection from
discrimination occasioned by their application for and/or receipt of workers' compensation
benefits. Moreover, both of these sections are codified within Article 5A of the West
Virginia Code pertaining to “Discriminatory Practices.” Because both of these provisions
are part of the same body of law, they should be construed and applied consistently with
one another. See Syl. pt. 1, State ex rel. Simpkins v. Harvey, 172 W. Va. 312, 305 S.E.2d
268 (1983) (“'A statute should be so read and applied as to make it accord with the spirit,
purposes and objects of the general system of law of which it is intended to form a part; it
being presumed that the legislators who drafted and passed it were familiar with all existing
law, applicable to the subject matter, whether constitutional, statutory or common, and
intended the statute to harmonize completely with the same and aid in the effectuation of
the general purposes and design thereof, it its terms are consistent therewith.' Syllabus
Point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).”), superseded by statute on
other grounds as stated in State ex rel. Hagg v. Spillers, 181 W. Va. 387, 382 S.E.2d 581
(1989), superseded by statute on other grounds as stated in State v. Yoak, 202 W. Va. 331,
504 S.E.2d 158 (1998); Syl. pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W. Va.
108, 219 S.E.2d 361 (1975) (“Statutes which relate to the same subject matter should be
read and applied together so that the Legislature's intention can be gathered from the whole
of the enactments.”); State v. Epperly, 135 W. Va. 877, 881, 65 S.E.2d 488, 491 (1951)
(“[A]ll statutes which deal with the same subject, or which have the same general purpose,
should be read in connection with it, as together constituting one law, even though such
statutes were enacted at different times[.]” (citation omitted)).
In Yoho, we reiterated the holding of the United States Supreme Court
determining that state law claims requiring the interpretation of a collective bargaining
agreement are preempted by federal law: “'[W]hen resolution of a state-law claim is
substantially dependent upon analysis of the terms of an agreement made between parties
in a labor contract, that claim must either be treated as a § 301 claim . . . or dismissed as
pre-empted by federal labor-contract law.'” Yoho, 175 W. Va. at 559, 336 S.E.2d at 207
(quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S. Ct. 1904, 1916, 85
L. Ed. 2d 206 (1985) (citation omitted)). However, we also considered the Supreme
Court's recognition that
not all labor disputes are pre-empted by Section 301:
Clearly § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law. In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.
Yoho, 175 W. Va. at 559, 336 S.E.2d at 207 (quoting Allis-Chalmers, 471 U.S. at 212, 105
S. Ct. at 1912, 85 L. Ed. 2d 206 (footnote omitted)). Applying this reasoning to the cause
of action at issue in Yoho, we determined that the claim asserted by the injured employee
alleging a violation of W. Va. Code § 23-5A-1 was a “state law claim [which] is not
dependent upon analysis of the terms of [the parties'] collective bargaining agreement and,
therefore, falls into that category of cases which Congress did not intend to pre-empt.” Yoho, 175 W. Va. at 560, 336 S.E.2d at 208.
Reading and applying W. Va. Code § 23-5A-3 consistently with W. Va. Code
§ 23-5A-1, we conclude that the same reasoning should apply to the additional claim
asserted by Mr. Peters in this case under W. Va. Code § 23-5A-3(b), which claim did not
exist when we decided Yoho. To decide otherwise would produce inconsistent results in
contravention of this Court's duty to “avoid whenever possible [an application] of a statute
which leads to absurd, inconsistent, unjust or unreasonable results.” State v. Kerns, 183
W. Va. 130, 135, 394 S.E.2d 532, 537 (1990). Accordingly, consistent with our holding
in Syllabus point 2 of Yoho, we hold that an action for wrongful termination under W. Va.
Code § 23-5A-3 (1990) (Repl. Vol. 2005) is not pre-empted by federal labor law. Because
Mr. Peters's second cause of action alleged a claim for workers' compensation
discrimination pursuant to W. Va. Code § 23-5A-3(b), the circuit court correctly found that
Mr. Peters's claim was not preempted. Therefore, we affirm the circuit court's ruling.
[c]ollateral estoppel is designed to foreclose litigation of
issues in a second suit which have actually been litigated in the
earlier suit even though there may be a difference in the cause
of action between the parties of the first and second suit. We
have made this summary of the doctrine of collateral estoppel:
“But where the causes of action are not the same,
the parties being identical or in privity, the bar
extends to only those matters which were
actually litigated in the former proceeding, as
distinguished from those matters that might or
could have been litigated therein, and arises by
way of estoppel rather than by way of strict res
adjudicata.” Lane v. Williams, 150 W. Va. 96,
100, 144 S.E.2d 234, 236 (1965).[ (See footnote 15) ]
Syl. pt. 2, Conley v. Spillers, 171 W. Va. 584, 301 S.E.2d 216 (footnote added). More specifically,
[c]ollateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.[ (See footnote 16) ]
Syl. pt. 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (footnote added). Whether the
doctrine of collateral estoppel will be applied in a particular case, though, rests within the
sound discretion of the trial court: “[t]he application of the doctrine of collateral estoppel
is discretionary with the trial court[.]” Syl. pt. 7, in part, Conley, 171 W. Va. 584, 301
S.E.2d 216.
Our inquiry begins with the first factor of the Miller test: was “[t]he issue
previously decided . . . identical to the one presented in the action in question[?]” Syl. pt.
1, in part, Miller, 194 W. Va. 3, 459 S.E.2d 114. We conclude that it was not. In the prior
arbitration, Rivers Edge presented the issue of whether it was justified in terminating Mr.
Peters based upon his violation of the “two-day rule.” However, in the underlying circuit
court litigation, Mr. Peters presented the issue of whether Rivers Edge's asserted reliance
on his violation of the “two-day rule” was a pretext for the unlawful workers' compensation
discrimination that actually formed the basis of Rivers Edge's decision to discharge him.
Thus, it is clear that the two litigations involve different central issues: the arbitration
sought to resolve, under the collective bargaining agreement, whether Rivers Edge
terminated Mr. Peters because he had violated the “two-day rule” while the circuit court
litigation sought to resolve, under our workers' compensation discrimination statutes,
whether Rivers Edge's termination of Mr. Peters based upon his violation of the “two-day
rule” was pretextual. (See footnote 17) Because these issues are different, they are not identical as required
by the first factor of Miller. See Syl. pt. 1, Miller, 194 W. Va. 3, 459 S.E.2d 114. Insofar
as Rivers Edge has failed to satisfy the first factor of the Miller test, we need not address
the remaining elements of this test given that the satisfaction of all four factors are required
for an issue to be collaterally estopped. See Syl. pt. 1, id. Accordingly, the circuit court did
not abuse its discretion in ruling that collateral estoppel did not operate to bar Mr. Peters
from litigating issues surrounding Rivers Edge's termination of his employment during the
trial of this matter, and we affirm the circuit court's ruling in this regard.
During the pretrial proceedings in this case, the circuit court determined that
reinstatement would not be an appropriate remedy in this case and, thus, that the proper
remedy in lieu of reinstatement would be front pay. See Thompson v. Town of Alderson,
215 W. Va. 578, 581, 600 S.E.2d 290, 293 (2004) (“[A] court may rule preliminarily, that
reinstatement is not a remedy that will be considered by the court.”). See also Dobson v.
Eastern Assoc. Coal Corp., 188 W. Va. 17, 24, 422 S.E.2d 494, 501 (1992) (recognizing
front pay as substitute for reinstatement).
At issue in this assignment of error is whether Mr. Peters is entitled to an
award of front pay and, if he is, whether the amount of front pay damages awarded by the
jury is supported by the evidence. We will consider each of these issues.
1. Front pay is an available remedy in workers' compensation
discrimination cases. In this case, Mr. Peters asserted claims against Rivers Edge alleging
workers' compensation discrimination pursuant to W. Va. Code § 23-5A-1 and W. Va.
Code § 23-5A-3(b). The statutes defining these prohibited discriminatory practices are
silent as to the remedies that are available for the violation of these provisions. In Shanholtz
v. Monongahela Power Co., 165 W. Va. 305, 270 S.E.2d 178 (1980), we held that an
aggrieved employee could maintain a cause of action for workers' compensation
discrimination: “It is a contravention of public policy and actionable to discharge an
employee because he has filed a workmen's compensation claim against his employer.”
Syl. pt. 2, id. We further found that such an action sounds in tort. 165 W. Va. at 310, 270
S.E.2d at 182. Accord Syl. pt. 4, in part, Dobson v. Eastern Assoc. Coal Corp., 188 W. Va.
17, 422 S.E.2d 494 (1992) (holding that person who files civil action to enforce provisions
of W. Va. Human Rights Act, W. Va. Code § 5-11-1, et seq., “may recover damages
sounding in tort”). Because the events surrounding Mr. Shanholtz's discharge transpired
before the Legislature had enacted W. Va. Code § 23-5A-1, we did not apply the statute to
the facts of that case. Nevertheless, we recognized that W. Va. Code § 23-5A-1 “is a
codification of what we perceive to be the law, that is, it is a contravention of public policy
and actionable to discharge an employee because he filed a workmen's compensation claim
against his employer.” Shanholtz, 165 W. Va. at 312, 270 S.E.2d at 183 (citations omitted).
Thus, the common law of the tort of retaliatory discharge and the remedies available
thereunder are instructive to our determination of the appropriateness of the award of front
pay damages in the case sub judice.
Historically, reinstatement was not a recognized remedy for the tort of
retaliatory discharge. As we observed in Harless II,
[t]he tort of retaliatory discharge was fashioned as an
exception to the common law rule that an employer had an
absolute right to discharge an at will employee. . . . This
exception was drawn not to cover all at will firings but only
those where it could be demonstrated that the discharge was in
retaliation for the employee's exercising some substantial
public policy right. The remedy afforded was not reinstatement
but damages occasioned by the discharge.
Harless v. First Nat'l Bank in Fairmont, 169 W. Va. 673, 692, 289 S.E.2d 692, 703 (1982) (citations omitted).
Notwithstanding the contrary common-law tradition, there has been widespread use of the reinstatement remedy in statutes prohibiting discrimination on the basis of sex, race, age, or handicap. It has even been said that reinstatement is the preferred remedy for the tort of retaliatory discharge, since no other remedy can fully compensate an employee for the wrongful loss of his or her job. In a retaliatory discharge action, reinstatement is an equitable remedy within the court's discretion[.]
82 Am. Jur. 2d Wrongful Discharge § 230 (2003) (footnotes omitted). Thus, reinstatement has evolved into an accepted remedy for the tort of retaliatory discharge. See, e.g., Eddins v. Geneva Pharms., Inc., 877 F. Supp. 413, 421 (E.D. Tenn. 1994) (“The Tennessee Supreme Court has clearly recognized the tort action of retaliatory discharge . . . and has further held that the remedies of reinstatement and reimbursement for lost wages and work benefits are [among] the . . . remedies available to the discharged employee.”); Skirpan v. United Air Lines, Inc., No. 83 C 0447, 1989 WL 84463, at *3 (N.D. Ill. July 21, 1989) (mem. op.) (“[W]e hold that reinstatement is a natural remedy for th[e] tort [of retaliatory discharge based upon workers' compensation discrimination] which was created to prevent wrongful discharge. No other remedy can fully compensate an employee for the wrongful loss of his or her job.” (citation omitted)).
Similarly, this Court has repeatedly recognized that an employee who is
wrongfully discharged may seek the remedy of reinstatement. See, e.g., Syl., Thompson,
215 W. Va. 578, 600 S.E.2d 290 (including within list of remedies available to wrongfully
discharged employee under Whistle-Blower Law, W. Va. Code § 6C-1-1, et seq.,
“reinstatement of the employee”); Syl. pt. 3, Bonnell v. Carr, 170 W. Va. 493, 294 S.E.2d
910 (1982) (“The generally accepted rule is that where a tenured employee of a school
system has been wrongfully discharged such employee is entitled to reinstatement.”); Martin v. Mullins, 170 W. Va. 358, 362, 294 S.E.2d 161, 165 (1982) (commenting that,
“[u]nder 42 U.S.C. 1983 an entirely good-faith violation of a civil right can result in the
type of equitable relief that was awarded the wrongfully discharged . . . employees_namely
reinstatement with back pay”); Syl. pt. 2, Hall v. Protan, 158 W. Va. 276, 210 S.E.2d 475
(1974) (holding that wrongfully discharged deputy sheriff has right to be reinstated).
Not all cases, though, present the right circumstances for an employee's
reinstatement. When the wrongful discharge is precipitated by or results in a hostile
relationship between the employee and the employer, reinstatement is not appropriate. In
such circumstances, we have recognized front pay as an acceptable substitute for
reinstatement. “[F]ront pay is simply money awarded for lost compensation during the
period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du
Pont de Nemours & Co., 532 U.S. 843, 846, 121 S. Ct. 1946, 1948, 150 L. Ed. 2d 62 (2001).
Accord Dotson v. Pfizer, Inc., No. 07-1920 & No. 07-1979, ___ F.3d ___, ___, 2009 WL
532535, at *10 (4th Cir. Mar. 4, 2009) (“recogniz[ing front pay] as a proper form of relief
that is 'an alternative and complement to reinstatement'” (quoting Cline v. Wal-Mart Stores,
Inc., 144 F.3d 294, 307 (4th Cir. 1998))); Thompson v. Town of Alderson, 215 W. Va. at 579
n.1, 600 S.E.2d at 291 n.1 (“'“Front pay” is a shorthand term frequently used . . . to refer
to future lost pay and benefits.'” (quoting Tadsen v. Praegitzer Indus., Inc., 324 Or. 465,
472 n.5, 928 P.2d 980, 981 n.5 (1996))). Stated otherwise, “[f]ront pay represents the
difference between what an employee would have earned from his former employer had he
not been fired and what he can expect to earn in any employment in the future.” Casteel
v. Consolidation Coal Co., 181 W. Va. 501, 507 n.8, 383 S.E.2d 305, 311 n.8 (1989).
Therefore, “this Court [has] recognized that 'make-whole' relief could include
an award by a jury of front pay in a wrongful discharge case, where reinstatement was not
appropriate.” Thompson, 215 W. Va. at 580, 600 S.E.2d at 292 (citation omitted). More
specifically, we have observed that
“[t]he inclusion of equitable relief strengthens the conclusion
that . . . victims of . . . discrimination . . . be made whole by
restoring them to the position they would have been in had the
discrimination never occurred.
Front pay, an award for future earnings, is sometimes needed
to achieve that purpose. Ordinarily, an employee would be
made whole by a backpay award coupled with an order for
reinstatement. Reinstatement is the preferred remedy to avoid
future lost earnings, but reinstatement may not be feasible in all
cases.”
Dobson v. Eastern Assoc. Coal Corp., 188 W. Va. at 24, 422 S.E.2d at 501 (quoting Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985)). Likewise, front pay is a
suitable substitute remedy for reinstatement when an employer objects to reinstatement: “A
jury may award front pay in a Human Rights Act case where the employer, by opposing
reinstatement, 'elected front pay rather than reinstatement.'” Thompson, 215 W. Va. at 580,
600 S.E.2d at 292 (quoting Casteel v. Consolidation Coal Co., 181 W. Va. at 507, 383
S.E.2d at 311).
When determining whether a particular case lends itself to the remedy of
reinstatement or whether an award of damages for front pay would be more appropriate, we
have directed that “a court may rule preliminarily, that reinstatement is not a remedy that
will be considered by the court.” Thompson v. Town of Alderson, 215 W. Va. at 581, 600
S.E.2d at 293. Decisions regarding the issue of front pay rest within a circuit court's
discretion. See, e.g., Wilson v. Phoenix Specialty Mfg. Co., Inc., 513 F.3d 378, 388 (4th Cir.
2008) (“Whether front pay is to be awarded is a matter left to the discretion of the trial
judge.” (citation omitted)); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir.
2001) (“The award of front pay rests squarely within the district court's discretion.”).
In light of the foregoing authorities and the development of the law of
retaliatory discharge in this State, we hold that an employee who asserts a claim alleging
workers' compensation discrimination in accordance with W. Va. Code § 23-5A-1, et seq.,
may recover damages for front pay in lieu of reinstatement. Whether the facts of a
particular case warrant an award of front pay in lieu of reinstatement is a decision
committed to the circuit court, and such a determination will be reviewed for an abuse of
discretion. (See footnote 18)
Applying this holding to the instant proceeding, we conclude that the circuit
court did not abuse its discretion in determining that the facts of this case were not
appropriate for the consideration of reinstatement and, thus, that Mr. Peters could assert a
claim for front pay damages. Given the level of distrust Rivers Edge had of Mr. Peters and
the legitimacy of his workers' compensation claim, (See footnote 19) it goes without saying that the
atmosphere within which Mr. Peters would have been required to work had he been
reinstated would hardly have been harmonious or collegial. Rather, the facts of this case
lend themselves more to a complete severing of the employer-employee relationship such
as would be accomplished through an award of front pay as opposed to forcing the
continuation of the broken relationship through reinstatement. Accordingly, we affirm the
circuit court's ruling permitting Mr. Peters to seek damages for front pay.
2. The amount of front pay damages awarded by the jury is supported by
the evidence. Having concluded that front pay is an available remedy in this case, we next
must determine whether the amount of Mr. Peters's front pay award is excessive. At the
conclusion of the underlying trial, the jury returned a verdict in favor of Mr. Peters
awarding him damages for, among other things, front pay in the amount of $513,410. With
respect to the role of juries, we have held that “[i]t is the peculiar and exclusive province
of a jury to weigh the evidence and to resolve questions of fact when the testimony of
witnesses regarding them is conflicting and the finding of the jury upon such facts will not
ordinarily be disturbed.” Syl. pt. 2, Skeen v. C & G Corp., 155 W. Va. 547, 185 S.E.2d 493
(1971). Therefore,
[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
Syl. pt. 5, Poe v. Pittman, 150 W. Va. 179, 144 S.E.2d 671 (1965). See also Syl. pt. 5, Orr
v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983) (“In determining whether there is
sufficient evidence to support a jury verdict, the court should: (1) consider the evidence
most favorable to the prevailing party; (2) assume that all conflicts in the evidence were
resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which
the prevailing party's evidence tends to prove; and (4) give to the prevailing party the
benefit of all favorable inferences which reasonably may be drawn from the facts proved.”).
Moreover, “[c]ourts must not set aside jury verdicts as excessive unless they are monstrous,
enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show
jury passion, partiality, prejudice or corruption.” Syl., Addair v. Majestic Petroleum Co.,
Inc., 160 W. Va. 105, 232 S.E.2d 821 (1977).
With specific respect to awards of front pay, we have counseled that “front
pay damages, when appropriate, must be proved to a reasonable probability and are a form
of compensatory damages, because they 'restore[] the terminated employee to the economic
position that the employee would have enjoyed, were it not for the employer's conduct.'” Thompson, 215 W. Va. at 579 n.1, 600 S.E.2d at 291 n.1 (quoting Tadsen, 324 Or. at 470,
928 P.2d at 983). Nevertheless, in this State, juries, and not courts, typically resolve
uncertainties inherent in calculations of front pay. See Thompson, 215 W. Va. at 581, 600
S.E.2d at 293 (discussing jury's calculation of front pay award); Dobson, 188 W. Va. at 23-
25, 422 S.E.2d at 500-02 (upholding instruction directing jury to consider elements
indicative of damages for front pay). (See footnote 20)
Turning to the facts of the case sub judice, we conclude that the evidence
supports the jury's assessment of the credibility of the witnesses and the evidence presented
in support of the front pay damages that will be incurred by Mr. Peters. The amount of
front pay awarded, i.e., $513,410, was within the range of figures proffered by the experts
as indicative of “the difference between what [Mr. Peters] would have earned from [Rivers
Edge] had he not been fired and what he can expect to earn in any employment in the
future.” Casteel v. Consolidation Coal Co., 181 W. Va. at 507 n.8, 383 S.E.2d at 311 n.8.
Mr. Peters's evidence also presented calculations for lost future wages within the rubric of
various hypothetical scenarios, which considered varying dates of separation from
employment in light of Mr. Peters's age, retirement, and life expectancy. Evidence of this
nature is consistent with the elements we consider in calculating awards for lost future
earnings in other cases. See Syl. pt. 2, in part, Andrews v. Reynolds Mem'l Hosp., Inc., 201
W. Va. 624, 499 S.E.2d 846 (1997) (instructing that jury award for infant's lost future
earnings will be upheld as not speculative “where the award of lost future earnings is within
the range of estimated future earnings, based upon various life scenarios, reduced to present
value, established by the expert testimony of an economist at trial” and where such
evidence considers a “statistically . . . average life expectancy and an average work life
expectancy”).
Furthermore, to the extent that Rivers Edge complains that Mr. Peters failed
to mitigate his damages, Rivers Edge's contention is without merit. When an employee is
wrongfully discharged and the employer's actions in discharging said employee are
malicious, the employee has no duty to mitigate his/her damages:
Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.
Syl. pt. 2, Mason County Bd. of Educ. v. State Superintendent of Schs., 170 W. Va. 632, 295
S.E.2d 719 (1982) (emphasis added). As will be discussed in greater detail in Sections
III.D.1 and III.D.2, infra, we find that Rivers Edge's malicious misconduct in terminating
Mr. Peters's employment in retaliation for his application for and receipt of workers'
compensation benefits absolves Mr. Peters of the duty to mitigate his damages in this case.
Having thus determined the amount of Mr. Peters's front pay award to have been supported
by the evidence, we affirm the circuit court's ruling upholding the jury's verdict in this
regard.
Syl. pt. 5, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991) (emphasis added). As to the amount of a punitive damages award, we have instructed that,
[u]nder 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, Alkire v. First Nat'l Bank of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996)
(emphasis added). It is apparent from both of these holdings, then, that this Court accords
a plenary or de novo review to jury awards of punitive damages and to circuit court rulings
thereon because this Court considers the same factors that previously were considered by
the jury and the trial court. See Syl. pt. 5, Garnes, 186 W. Va. 656, 413 S.E.2d 897. This
conclusion is supported further by the similar observation of the United States Supreme
Court in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121
S. Ct. 1678, 1685-86, 149 L. Ed. 2d 674 (2001), directing that “courts of appeals should
apply a de novo standard of review when passing on district courts' determinations of the
constitutionality of punitive damages awards.” (Footnote omitted). Accordingly, we hold
that, when reviewing an award of punitive damages in accordance with Syllabus point 5 of Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991), and Syllabus
point 5 of Alkire v. First National Bank of Parsons, 197 W. Va. 122, 475 S.E.2d 122 (1996),
this Court will review de novo the jury's award of punitive damages and the circuit court's
ruling approving, rejecting, or reducing such award.
In Garnes, we identified several factors that should be considered by a jury
when deciding whether to award punitive damages to a plaintiff:
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.Syl. pt. 3, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897. (See footnote 21)
We also enumerated additional criteria a trial court should consider when
evaluating the correctness of a jury's award of punitive damages:
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 defendant, 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.
Because not all relevant information is available to the
jury, it is likely that in some cases the jury will make an award
that is reasonable on the facts as the jury know them, but that
will require downward adjustment by the trial court through
remittitur because of factors that would be prejudicial to the
defendant if admitted at trial, such as criminal sanctions
imposed or similar lawsuits pending elsewhere against the
defendant. However, at the option of the defendant, or in the
sound discretion of the trial court, any of the above factors may
also be presented to the jury.
Syl. pt. 4, Garnes, 186 W. Va. 656, 413 S.E.2d 897. (See footnote 22)
However, at the most basic level, a review of an award of punitive damages
involves two distinct inquiries: whether the case warrants an award of punitive damages and
whether the amount of the punitive damages award is proper. We explained this procedure
in Syllabus point 7 of Alkire:
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. 122, 475 S.E.2d 122 (emphasis in original). Applying these authorities to the facts of this case, we proceed to address each of these issues.
1. Mr. Peters is entitled to an award of punitive damages. Rivers Edge
first argues that the evidence in this case was not sufficient to support the jury's award of
punitive damages to Mr. Peters. In this regard, Rivers Edge claims that the evidence does
not support an award of punitive damages against it because it has not acted “maliciously,
wantonly, mischievously or with criminal indifference to civil obligations.” Syl. pt. 3, in
part, Jopling v. Bluefield Water Works & Improvement Co., 70 W. Va. 670, 74 S.E. 943
(1912). Moreover, Rivers Edge asserts that punitive damages are not automatically
available in a retaliatory discharge case; instead, “there must be evidence of misconduct by
the defendant which is above and beyond the mere act of a retaliatory discharge.” Citing Harless v. First Nat'l Bank in Fairmont, 169 W. Va. 673, 692 n.19, 289 S.E.2d 692, 703
n.19 (1982) (Harless II). Here, Rivers Edge asserts that Mr. Peters has not produced any
evidence to indicate that Rivers Edge acted in any of the prohibited ways in discharging him
from employment.
Mr. Peters replies that the circuit court considered the conduct of Rivers Edge
and correctly upheld the jury's award of punitive damages. In demonstrating that Rivers
Edge's conduct supports an award of punitive damages, Mr. Peters had to show only that
Rivers Edge acted “wantonly, willfully, or maliciously.” Citing Syl. pt. 4, Mayer v. Frobe,
40 W. Va. 246, 22 S.E. 58 (1895). Thus, Mr. Peters asserts that “the jury could reasonably
conclude that Rivers Edge specifically disregarded the rights of George Peters and
generally disregarded the rights of any employee who filed a workers compensation claim
that the defendant [Rivers Edge] deemed to be 'suspicious'.”
By order entered June 29, 2007, the circuit court reviewed and upheld the
jury's award of punitive damages. (See footnote 23) In its order, the lower court found that the evidence
demonstrated that Rivers Edge had been “suspicious” of the validity of Mr. Peters's
workers' compensation claim, that it placed him under surveillance when his doctor did not
approve his return to work, and once his return to work had been approved, continued its
surveillance of him rather than responding to his attempts to return to work. Moreover, the
circuit court found further that, although Rivers Edge had known of Mr. Peters's ability to
return to work for six days, the evidence adduced at trial demonstrated that Rivers Edge
gave Mr. Peters only five hours' notice that he was required to report to work on
Wednesday, May 12, 2004. In its June 29, 2007, punitive damages order, the circuit court
enumerated specific findings analyzing the Garnes factors:
the Court notes that the evidence at trial was sufficient for a
jury to conclude that the Plaintiff [Mr. Peters] was severely
harmed by the conduct of the Defendants [Rivers Edge], as the
plaintiff lost his job, was placed under surveillance, and
suffered economic losses; and,
[T]he Plaintiffs introduced the expert testimony of
[William E. Cobb] (See footnote 24) who opined to a reasonable degree of
accounting certainty that the Plaintiff suffered economic
damages ranging from $632,505.00 to $885,316.00 (Plaintiffs
Trial Ex. 4), in response to which the Jury could reasonably
determine that there was sufficient evidence to show that the
Plaintiffs' damages was [sic] caused by River's [sic] Edge
Mining's tortious misconduct; and,
[T]here was sufficient evidence from numerous witnesses,
including Defendants [sic] own witnesses, for the jury to
determine that Defendants, through the actions of their officers,
employees or agents, committed the civil wrongs of unlawful
failure to reinstate the plaintiff to his former position within
their company, and that pursuit or receipt of workers'
compensation benefits was a motivating factor of plaintiff's
discharge (see Jury Verdict Form);[ (See footnote 25) ] and
[T]his Court finds that the evidence at trial was clearly
sufficient for a jury to properly conclude that Defendants
continued in their damaging conduct for an extensive period of
time; and,
[T]his Court finds that the Plaintiffs [sic] also adduced
evidence from its own witnesses, together with the Defendants'
witnesses, [from] which the jury could reasonably conclude
that Defendants' conduct was reprehensible and self-
serving. . . . Here, for example, the Plaintiffs adduced the
following evidence before the Jury, which was apparently
sufficient for the Jury's determinations:
(a) In this case, the jury could reasonably
conclude that Rivers Edge specifically
disregarded the rights of George Peters and
generally disregarded the rights of any employee
who filed a workers compensation claim that the
defendant deemed to be “suspicious;” and,
(b) The testimony in this case made clear that
Rivers Edge and its agents were “suspicious” of
the validity of Mr. Peters'[s] workers'
compensation claim. In fact, the individuals
involved in the decision to terminate Mr.
Peters'[s] employment admitted that they were
suspicious of his workers' compensation claim
all the way up to the day of his termination. Yet,
instead of allowing the workers['] compensation
system to take its course, a reasonable jury could
clearly conclude that Rivers Edge chose to take
the law in its own hands; and,
(c) The evidence presented to the jury supports a
finding that, when Mr. Peters'[s] doctor indicated
he would be unable to return to work on April 28,
2004, Rivers Edge placed Mr. Peters' [sic] under
surveillance the next day. When Mr. Peters'[s]
doctor released him to return to work, the
plaintiff began seeking to return to his
employment with Rivers Edge. However,
instead of immediately returning Mr. Peters to
work, Rivers Edge continued its surveillance on
the plaintiff and did not respond to the plaintiff's
attempts to return to work; and,
(d) The evidence presented to the jury indicated
that, when Donnie Pauley, the individual who ran
the defendant's transitional work program,
finally called Mr. Peters to come back to work,
Mr. Pauley told Mr. Peters that it would be fine
if the plaintiff returned to work the following
day. However, Nancy Arritt (who admitted that
she was suspicious of Mr. Peters'[s] workers'
compensation claim) made Mr. Pauley call Mr.
Peters back and inform the plaintiff that he had to
appear for work that same day; and,
(e) The requirement imposed on the plaintiff by
Ms. Arritt meant that, despite the fact that Rivers
Edge had been on notice for six days that Mr.
Peters could return to work, the defendant only
gave Mr. Peters five hours notice that he was
required to come to work. The jury could
reasonably conclude that this illogical
requirement imposed on the plaintiff by Rivers
Edge was motivated by malice; and,
(f) When Mr. Peters showed up for work the next
day, instead of putting him back to work, Rivers
Edge terminated his employment. The jury
clearly concluded that all of this conduct on the
part of Rivers Edge was calculated and
intentional. The facts and inferences in this case
do not point so strongly and overwhelmingly in
favor of Rivers Edge to lead to the conclusion
that the jury was wrong in reaching this
conclusion. In fact, the facts and inferences in
this case point strongly in support of the jury's
conclusion. Although the defendant had a duty
under the law to return Mr. Peters to his
employment following his absences related to a
workers' compensation covered injury, Rivers
Edge terminated Mr. Peters['s] employment on
the day Mr. Peters showed up for work; and,
(g) Based on the evidence presented at trial, the
jury could reasonably conclude that this was
simply the way that Rivers Edge did business.
As the testimony of Jerry Legg [another former
Rivers Edge employee] demonstrated, the
defendant had a plan for identifying persons it
believed were committing workers'
compensation fraud, placing those individuals
under surveillance and taking action against such
persons outside of the remedies available in the
workers' compensation system; and,
(h) In this case there was ample evidence
presented to prove that Rivers Edge terminated
Mr. Peters' employment in retaliation for filing a
workers' compensation claim. In fact, that is
what the jury decided. Further, the jury also
found that the purported “legitimate” reason that
the defendant proffered at trial to explain the
termination was a pretext to cover its illegal
retaliatory motive to terminate Mr. Peters for
receiving or attempting to receive workers'
compensation benefits. This illegal retaliatory
motive was apparent at trial when representatives
of Rivers Edge testified that they felt Mr. Peters
was guilty of fraud and theft; and,
(i) It is also clear from the testimony at trial that
Rivers Edge was well aware of the anti-
retaliation provisions of the workers'
compensation statutes. The jury could
reasonably conclude that the defendant willfully,
wantonly and maliciously disregarded Mr.
Peters'[s] rights and retaliated against him for
receiving or attempting to receive workers'
compensation benefits.
[F]rom this evidence and all the other evidence adduced at trial,
. . . this Jury, it being a rational trier of fact, had sufficient
evidence before it to conclude that River's [sic] Edge Mining's
conduct was reprehensible . . . and warranted the imposition of
punitive damages[.]
. . . .
[I]n regard to the other arguments regarding this Jury's award
of punitive damages . . . in this case, there was very substantial
evidence from which a jury could properly find that River's
[sic] Edge Mining's conduct was reprehensible and,
specifically, that the plaintiff's pursuit or receipt of workers'
compensation benefits was a substantial or motivating factor in
his discharge from employment . . . [.]
(Footnotes added). Based upon these findings, the circuit court found punitive damages to
be proper in this case.
Pursuant to our holding in Syllabus point 7 of Alkire, our first punitive
damages inquiry is “a determination of whether the conduct of the 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)[.]” Syl. pt. 7, in part, Alkire, 197 W. Va. 122, 475 S.E.2d 122
(emphasis in original). Mayer v. Frobe instructs that, “[i]n actions of tort, where gross
fraud, malice, oppression, or wanton, willful, or reckless 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.” Syl. pt. 4, 40 W. Va. 246, 22 S.E. 58. Accord Syl. pt. 1, O'Brien v.
Snodgrass, 123 W. Va. 483, 16 S.E.2d 621 (1941) (“Punitive or exemplary damages are
such as, in a proper case, a jury may allow against the defendant by way of punishment for
wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over
and above full compensation for all injuries directly or indirectly resulting from such
wrong.”).
Nevertheless, “[t]o sustain a claim for punitive damages, the wrongful act
must have been done maliciously, wantonly, mischievously, or with criminal indifference
to civil obligations. A wrongful act, done under a bona fide claim of right, and without
malice in any form, constitutes no basis for such damages.” Syl. pt. 3, Jopling v. Bluefield
Water Works & Improvement Co., 70 W. Va. 670, 74 S.E. 943 (1912). Consistent with this
recognition is our observation in Harless v. First National Bank in Fairmont, 169 W. Va.
673, 289 S.E.2d 692 (1982) (Harless II), to the effect that “[t]he mere existence of a
retaliatory discharge will not automatically give rise to the right to punitive damages. The
plaintiff must prove further egregious conduct on the part of the employer.” Id., 169 W. Va.
at 692-93, 289 S.E.2d at 703.
Under the facts of this case, Mr. Peters has sustained his burden of proof. Not
only did Mr. Peters adduce evidence to prove that his termination by Rivers Edge was in
retaliation for his application for and receipt of workers' compensation benefits, Mr. Peters
also proved that Rivers Edge's actions in this regard were malicious. “The foundation of
an inference of malice is the general disregard of the rights of others, rather than an intent
to injure a particular individual.” Addair v. Huffman, 156 W. Va. 592, 603, 195 S.E.2d 739,
746 (1973). (See footnote 26) Here, the evidence demonstrated that Rivers Edge had a “general disregard
of the rights of others,” id., which was apparent from Rivers Edge's treatment of Mr. Peters
throughout his receipt of statutory workers' compensation benefits for an injury he received
while working for Rivers Edge.
As an employee of Rivers Edge, Mr. Peters had a right to apply for and
receive workers' compensation benefits for any injury he incurred “in the course of and
resulting from [his] covered employment.” W. Va. Code § 23-4-1(a) (2003) (Repl. Vol.
2005). (See footnote 27) Mr. Peters incurred such an injury at work, on October 28, 2003, when he broke
his wrist. In spite of repeated medical treatment for this injury, Mr. Peters continued
working, through the Transitional Work Program, until his doctor advised him, on March
1, 2004, that he needed to stop working until his wrist healed because it was not healing
properly while he continued working. Mr. Peters heeded his physician's warnings, and
requested and received temporary total disability benefits while he was off from work to
permit his wrist to finally heal. During this time, Rivers Edge placed Mr. Peters under
surveillance because it doubted the credibility of his workers' compensation claim.
However, Mr. Peters's workers' compensation claim for his work-related wrist injury was
determined to be legitimate and credible because he was granted an 11% permanent partial
disability workers' compensation award for his injured wrist.
Thereafter, when Mr. Peters's doctor released him to return to work and he
informed Rivers Edge of this fact, Rivers Edge did not immediately respond to his request
that he be permitted to return to work through the Transitional Work Program. Neither did
Rivers Edge timely contact Mr. Peters to inform him of his return to work date. Instead,
Rivers Edge again placed Mr. Peters under surveillance.
The following week, Rivers Edge, by Mr. Pauley, attempted unsuccessfully
to contact Mr. Peters but did not leave any messages to inform him of the date by which he
was expected to return to work or to let him know that his request to return to the
Transitional Work Program could be accommodated. When Mr. Pauley spoke with Mr.
Peters on May 12, 2004, nearly one week after Mr. Peters's doctor had released him to
return to work, Mr. Pauley informed Mr. Peters that he was required to report for work at
his scheduled shift time later that same day. Mr. Peters responded that he could report to
work the next day, but he was not prepared to report for his shift that same day, which was
scheduled to start only five hours later. Finally, when Mr. Peters reported to work the day
after he had spoken with Mr. Pauley, he was suspended and ultimately terminated.
Rivers Edge's conduct is particularly egregious in light of the fact the sole
reason Mr. Peters was off from work, in the first instance, is because he had sustained a
work-related injury while working for Rivers Edge. The actions of Rivers Edge show a
blatant “disregard” for the statutory workers' compensation rights accorded to Mr. Peters
by the West Virginia Legislature: his right to recover benefits for his work-related injury,
W. Va. Code § 23-4-1, and his right to retain his job during and after his convalescence for
his work-related injury, W. Va. Code §§ 23-5A-1 and 23-5A-3(b). During the entire time
Mr. Peters was off from work, Rivers Edge placed him under surveillance because it
doubted the legitimacy of his workers' compensation claim. After Mr. Peters had been
released by his doctor to return to work, Rivers Edge again placed him under surveillance
and then delayed informing Mr. Peters as to when it expected him to return to work until,
it claimed, he would risk violating the collective bargaining agreement's “two-day rule” if
he did not report for his shift only a few short hours later. (See footnote 28) This evidence is clearly
demonstrative of the maliciousness of Rivers Edge's actions, not only in retaliating against
Mr. Peters by firing him, but also in not respecting his right to apply for and receive
workers' compensation benefits for an injury he received while he was working for Rivers
Edge. Adding even more support for the award of punitive damages is the fact that there
is no indication that Mr. Peters had a history of disciplinary problems while he was
employed by Rivers Edge from November 2, 2002, until he was suspended on May 13,
2004. Thus, Mr. Peters's first instance of alleged misconduct as a Rivers Edge employee
ultimately resulted in termination, again, all because he missed work because he was
recovering from an injury he had sustained while performing Rivers Edge's work. We find
that, upon this record, the jury was properly instructed and correctly awarded punitive
damages to Mr. Peters. The circuit court also thoroughly reviewed the evidence adduced
at trial in light of our punitive damages jurisprudence and properly upheld the jury's award
of punitive damages. Accordingly, we affirm the circuit court's ruling in this regard.
2. The amount of punitive damages awarded by the jury is not excessive. Rivers Edge argues additionally that if this Court should determine that punitive damages
are warranted in this case, such award should be substantially reduced. Citing Syl. pt. 6, Alkire, 197 W. Va. 122, 475 S.E.2d 122. In summary, Rivers Edge complains that the
punitive damages awarded are not reasonably related to the harm actually sustained by Mr.
Peters insofar as Rivers Edge disputes the amount of compensatory damages awarded by
the jury. Additionally, Rivers Edge suggests that the 1:1 ratio of punitive to compensatory
damages in this case might not be constitutionally permissible. Citing Exxon Shipping Co.
v. Baker, ___ U.S. ___, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008); State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).
Rivers Edge further contends that its conduct was not “reprehensible” as
contemplated by BMW of North America, Inc. v. Gore, 517 U.S. 559, 576, 116 S. Ct. 1589,
1599, 134 L. Ed. 2d 809 (1996), because it simply discharged Mr. Peters based upon its
belief that he had violated the “two-day rule” of the collective bargaining agreement.
Moreover, Rivers Edge submits that it did not profit from its discharge of Mr. Peters, that
its financial position was not accurately portrayed, and that it has expended substantial sums
in the litigation of this case.
Mr. Peters responds by stating that the circuit court correctly upheld the
amount of punitive damages awarded to him by the jury as such award is supported by the
evidence introduced at trial. In this regard, Mr. Peters asserts that the punitive damages
awarded in this case bear a reasonable relationship to the harm occasioned by Rivers Edge's
conduct as well as to the compensatory damages awarded in this case; the jury awarded Mr.
Peters punitive damages of $1,000,000 and compensatory damages of $885,089, for a ratio
of punitive damages to compensatory damages of 1.13 to 1.
Mr. Peters additionally contends that the punitive damages awarded in this
case represent Rivers Edge's reprehensible conduct. In support of his argument, Mr. Peters
suggests that Rivers Edge regularly resorted to “self-help” methods when it believed an
employee's workers' compensation claim was fraudulent and terminated employees such
as Mr. Peters and Mr. Jerry Legg, who testified at trial. On this point, the circuit court
properly instructed the jury that it could consider whether Rivers Edge had retaliated
against other employees who had applied for or received workers' compensation benefits
but that it could not punish Rivers Edge for harm caused to anyone other than Mr. Peters.
Mr. Peters also suggests that Rivers Edge's offers of settlement were neither
fair nor prompt; no offer of settlement was made during the mandatory mediation ordered
by the circuit court, and the only offer of settlement tendered by Rivers Edge was on the eve
of trial in an amount equal to less than one-half of Mr. Peters's compensatory damages.
Finally, Mr. Peters states that Rivers Edge misconstrues the cost of litigation factor; it is the
cost of litigation to the plaintiff, not to the defendant.
In its punitive damages order of June 29, 2007, the circuit court also examined
the amount of punitive damages awarded by the jury and upheld the jury's $1,000,000
punitive damages award, finding in pertinent part, that,
from th[e] . . . evidence adduced at trial, . . . this Jury, it being
a rational trier of fact, had sufficient evidence before it to
conclude that River's [sic] Edge Mining's conduct was
reprehensible . . . and warranted the imposition of punitive
damages in the amounts that such were assessed by the Jury for
the conduct of the Defendants that had continued even after the
initiation of this litigation; and,
[W]hile the ratio of punitive damages to other damages may be
supportive of a factor of 1, 3, 5 or possibly more, given the
nature and extent of the evidence in a case, in this case the ratio
of punitive damages to other damages (approximately 1:1) is
well within the ratios considered reasonable by our Supreme
Court of Appeals. The ratio of punitive damages to the
compensatory and consequential damages awarded to the
Plaintiffs [sic] is approximately one to one; and,
[T]he Jury's award of punitive damages in this controversy, in
their amount and in their extent, will help promote settlements
in future matters of this type, especially where there is a
disparity of bargaining power between the parties; and,
. . . .
In that the Defendants' conduct is unlawful in West
Virginia, and that the award of punitive damages to the
Plaintiffs is only a factor of one, the punitive damage award is
obviously neither arbitrary, grossly excessive, nor in violation
of the Defendants' due process rights . . . ; and,
. . . .
[F]ollowing the Court's recent inquiries into whether or not
these West Virginia constitutional grounds have been utilized
successfully by any defendant arguing against a jury award of
punitive damages, the Court has been unable to ascertain any
decision by our Supreme Court that has ruled in favor of any
such defendant, when the trial court has properly charged the
trial jury by the giving of an instruction of law based upon the
enumerated factors set out in the Garnes case. This Court has
determined as a matter of fact and law that it did so charge the
Jury properly in regard to the articulated Garnes factors.
Moreover, the Court believes from the Jury's deliberations and the verdict that it returned awarding a ratio of approximately 1:1 in punitive money damages, e.g. approximately $900,000 non-punitive damages juxtaposed to $1 Million in punitive damages, that the Jury properly applied its Garnes instructions to the relevant facts of this case[.]
On the basis of these findings and conclusions, the circuit court determined that the $1,000,000 punitive damages award was not excessive and upheld the jury's verdict awarding punitive damages in this amount:
[A]s a result of all of the findings and conclusions set forth
above, the Court has expressly determined that it is just and
reasonable, as well as equitable and necessary, to DENY the
Defendants' Motion to Set Aside the Punitive Damages Award
and to CONFIRM AND AFFIRM the Jury's Verdict which
awarded $1,000,000 in punitive damages against the
Defendants[.]
The second part of our two-step analysis of punitive damages awards directs
us to consider whether the amount of a punitive damages award is excessive. Thus, we are
mandated to conduct, once we have determined that “a punitive damage award is justified,
. . . a review . . . 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).” Syl. pt. 7, in part, Alkire,
197 W. Va. 122, 475 S.E.2d 122 (emphasis in original). Our inquiry into the
reasonableness or excessiveness of a punitive damages award is guided by our holding in
Syllabus point 6 of Alkire:
Every post-trial analysis as to the amount of the punitive damage award should be conducted by the trial court exclusively 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.
197 W. Va. 122, 475 S.E.2d 122. Thus, in addition to the aforementioned factors enumerated in Syllabus points 3 and 4 of Garnes, 186 W. Va. 656, 413 S.E.2d 897, we must also consider our prior case of TXO Production Corp. v. Alliance Resources Corp., in which we held, at Syllabus point 15, that
[t]he 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. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d
366 (1993).
The United States Supreme Court has identified coordinate considerations for
a reviewing court to contemplate when assessing the correctness of the amount of a punitive
damages award. In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589,
134 L. Ed. 2d 809 (1996), the Court identified three factors courts should consider when
reviewing awards of punitive damages: (1) the reprehensibility of the defendant's conduct;
(2) the ratio or relationship of punitive damages to compensatory damages; and (3)
sanctions imposed for comparable misconduct. See generally State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) (applying Gore analysis).
The Gore Court first observed that “[p]erhaps the most important indicium
of the reasonableness of a punitive damages award is the degree of reprehensibility of the
defendant's conduct.” 517 U.S. at 575, 116 S. Ct. at 1599, 134 L. Ed. 2d 809 (footnote
omitted). To this end,
courts [were instructed to] determine the reprehensibility of a defendant by considering whether: 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.
Campbell, 538 U.S. at 419, 123 S. Ct. at 1521, 155 L. Ed. 2d 585 (citing Gore, 517 U.S. at
576-77, 116 S. Ct. at 1589, 134 L. Ed. 2d 809). Thus, “[i]t should be presumed a plaintiff
has been made whole for his injuries by compensatory damages, so punitive damages
should only be awarded if the defendant's culpability, after having paid compensatory
damages, is so reprehensible as to warrant the imposition of further sanctions to achieve
punishment or deterrence.” Campbell, 538 U.S. at 419, 123 S. Ct. at 1521, 144 L. Ed. 2d
585 (citing Gore, 517 U.S. at 575, 116 S. Ct. at 1521, 134 L. Ed. 2d 809).
The Gore Court then continued its analysis, commenting that “[t]he second
and perhaps most commonly cited indicium of an unreasonable or excessive punitive
damages award is its ratio to the actual harm inflicted on the plaintiff.” Id., 517 U.S. at 580,
116 S. Ct. at 1601, 134 L. Ed. 2d 809 (citation omitted). See also Pacific Mut. Life Ins. Co.
v. Haslip, 499 U.S. 1, 18, 111 S. Ct. 1032, 1043, 113 L. Ed. 2d 1 (1991) (“We need not, and
indeed we cannot, draw a mathematical bright line between the constitutionally acceptable
and the constitutionally unacceptable that would fit every case. We can say, however, that
general concerns of reasonableness and adequate guidance from the court when the case
is tried to a jury properly enter into the constitutional calculus.”). In other words,
“exemplary damages must bear a 'reasonable relationship' to compensatory damages[.]” Gore, 517 U.S. at 580, 116 S. Ct. at 1601, 134 L. Ed. 2d 809. In this regard, “[s]ingle-digit
multipliers are more likely to comport with due process, while still achieving the . . . goals
of deterrence and retribution . . . [,]” Campbell, 538 U.S. at 425, 123 S. Ct. at 1524, 144
L. Ed. 2d 585 (citation omitted), but “[t]he precise award in any case . . . must be based
upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff,” id. But see Exxon Shipping Co. v. Baker, ___ U.S. ___, ___, 128 S. Ct. 2605, 2633, 171
L. Ed. 2d 570 (2008) (concluding that a punitive to compensatory damages ratio of “1:1 . . .
is a fair upper limit in . . . maritime cases” (emphasis added)).
Lastly, the Gore Court recognized that “[c]omparing the punitive damages
award and the civil or criminal penalties that could be imposed for comparable misconduct
provides a third indicium of excessiveness.” Gore, 517 U.S. at 583, 116 S. Ct. at 1603, 134
L. Ed. 2d 809. Thus, “a reviewing court engaged in determining whether an award of
punitive damages is excessive should 'accord “substantial deference” to legislative
judgments concerning appropriate sanctions for the conduct at issue.'” Id. (quoting Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 109
S. Ct. 2909, 2934, 106 L. Ed. 2d 219 (1989) (O'Connor, J., concurring, in part, and
dissenting, in part)).
Applying these authorities to the facts of the case sub judice, we are
convinced that the jury's award of $1,000,000 in punitive damages was not excessive, and
the circuit court did not err in upholding this award. As we observed in the preceding
section, Rivers Edge's conduct was sufficiently reprehensible to warrant punitive damages
in this amount. Among other things, the evidence adduced at trial showed that Rivers Edge
was indifferent to Mr. Peters's health and safety by doubting the credibility of his workers'
compensation claim, placing him under surveillance, and terminating him for having missed
work as a result of his work-related injury. Rivers Edge's misconduct continued for a
period of time and was not a single, isolated incident. Moreover, Rivers Edge's actions
were malicious. In short, Rivers Edge's conduct “is so reprehensible as to warrant the
imposition of further sanctions to achieve punishment or deterrence.” Campbell, 538 U.S.
at 419, 123 S. Ct. at 1521, 144 L. Ed. 2d 585 (citation omitted).
Furthermore, the amount of punitive damages awarded in this case is not so
excessive as to “raise a suspicious judicial eyebrow.” TXO Prod. Corp. v. Alliance Res.
Corp., 509 U.S. 443, 481, 113 S. Ct. 2711, 2732, 125 L. Ed. 2d 366 (1993) (O'Connor, J.,
dissenting). In Syllabus point 15 of TXO, we held that
[t]he 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. 457, 419 S.E.2d 870. Here, the jury awarded Mr. Peters punitive damages in
the amount of $1,000,000 and compensatory damages in the amount of $885,107. Thus,
the actual ratio of punitive damages to compensatory damages in this case is 1.13 to 1, or
approximately 1:1. This ratio is not excessive and is well within the constitutionally
permissible limits for punitive damages awards.
Finally, there are no comparable criminal or civil penalties to punish
employers who wrongfully terminate employees who have applied for or received workers'
compensation benefits. See Vandevender v. Sheetz, Inc., 200 W. Va. 591, 605, 490 S.E.2d
678, 692 (1997) (per curiam) (“[T]he trial court correctly concluded that it was without civil
or criminal penalties for comparison purposes.”). The governing statutory law simply does
not provide for such penalties. See W. Va. Code § 23-5A-1, et seq. Therefore, the
imposition of a punitive damages award is a proper method by which to punish Rivers Edge
for its misconduct in wrongfully terminating Mr. Peters. Cf. Boyd v. Goffoli, 216 W. Va.
552, 608 S.E.2d 169 (2004) (upholding punitive damages award in amount greater than
authorized civil penalties for same misconduct).
Having therefore determined that the jury was properly instructed and that the
circuit court correctly upheld the jury's verdict awarding Mr. Peters punitive damages of
$1,000,000, we affirm the circuit court's ruling upholding the punitive damages awarded
in this case.