March 23, 2012 COA Minutes — Nos. 282-298 (17 decisions; 2 published)

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PUBLISHED DECISIONS OF COA:

290.  DAMAGES. PUNITIVE.
O. (R.)
VS.
C. (A.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001677-MR
TO BE PUBLISHED
CALLOWAY

ACREE, JUDGE: The sole issue before us is whether the Calloway Circuit Court’s award of $6,000,000.00 in punitive damages against Appellant, R.O., is constitutionally excessive. We find it is not. Accordingly, we affirm.

STD OF REVIEW:

We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky. 2007); McDonald’s Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky. App. 2009).

R.O. seeks to set aside the punitive damages award on the ground that it is grossly excessive. Specifically, R.O. contends the award violates the second and third guideposts set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S. Ct. 1589, 1595, 134 L. Ed. 2d 809 (1996).5 [

Kentucky’s punitive damages statutes, Kentucky Revised Statute (KRS) 411.184 and 411.186 also set forth “the level of punitive damages [Kentucky] will allow in different classes of cases and in any particular case [and they require] that the damages award be reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.” Ragland, 352 S.W.3d at 916 (quoting Gore, 517 U.S. at 568, 116 S. Ct. at 1595). R.O. does not contend, however, that the circuit court’s punitive damages award violates state statute. Instead, R.O. solely asserts that the award is grossly excessive in violation of his federal due process rights. We focus our review accordingly.]

We disagree.

Punitive damages function “to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore, 517 U.S. at 568, 116 S. Ct. at 1595; Kentucky Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 826 (Ky. 2005) (Wintersheimer, J., dissenting). “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to those interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Gore, 517 U.S. at 568, 116 S.Ct. at 1595 (citing TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456, 113 S. Ct. 2711, 2719, 125 L. Ed. 2d 366 (1993)). As this Court has previously framed the question, “What constitutes a ‘grossly excessive’ award?” McDonald’s, 309 S.W.3d at 298.

In answering this question, the United States Supreme Court established three guideposts to aid reviewing courts, namely:

(1) the degree of reprehensibility of the defendant’s conduct; (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 damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513, 1520, 155 L. Ed. 2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S. Ct. at 1599); see also Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). We scrutinize the award of punitive damages in the framework of these guideposts.

“The combination of these factors supports a finding of reprehensibility.” Ragland, 352 S.W.3d at 918. In fact, as explained by our sister state, “[t]he sexual molestation of young children . . . is widely viewed as one of the most, if not the most, reprehensible crimes in our society.” State v. McKinniss, 795 N.E.2d 160, 163 (Ohio App. 2003). We find the degree of reprehensibility in this case to be significant.

The Calloway Circuit Court’s award of punitive damages was not grossly excessive so as to violate R.O.’s federal constitutional due process protections. We therefore affirm the circuit court’s May 26, 2010 trial order and judgment.

ALL CONCUR.

294. CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.
COMMONWEALTH OF KENTUCKY
VS.
CLINE (BENJAMIN) II
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2011-CA-000219-DG
TO BE PUBLISHED
HART

LAMBERT, JUDGE: On the Commonwealth’s motion, this matter is before the Court on discretionary review from the opinion and order of the Hart Circuit Court, sitting as an appellate court, reversing the Hart District Court’s order denying Benjamin Cline, II’s motion to suppress evidence. Because we agree with the Commonwealth that the circuit court improperly reversed the district court’s ruling, we reverse.

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