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Owens-Corning Fiberglas Corp. v. Malone6/5/1998
ike criminal punishment, punitive damages require appropriate substantive and procedural safeguards to minimize the risk of unjust punishment." See Moriel, 879 S.W.2d at 16-17. BMW establishes three "guideposts" for determining whether a punitive damages award is unconstitutionally excessive: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between actual and punitive damages; and (3) a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct. See BMW, 517 U.S. at 574-75; see also TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 (1993); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20-21 (1990). We now apply these guideposts to determine whether the punitive damage judgment here is grossly excessive to the extent it violates OCF's substantive due process rights. In doing so, we are aware that whether the amount of punitive damages is excessive as a pure factual inquiry is beyond this Court's jurisdiction. See Kraus, 616 S.W.2d at 910. However, this Court has jurisdiction to determine whether the courts of appeals properly review such factual inquiries. See Keever, 915 S.W.2d at 479; Kraus, 616 S.W.2d at 910. Moreover, this Court has jurisdiction to decide questions of law like the constitutional substantive due process claims presented here. See Tex. Const. art. V, § 3; Tex. Gov't Code 22.001.
2. Analysis
First, the degree of reprehensibility of the defendant's conduct is " erhaps the most important indicium" of the reasonableness of a punitive damage award. See BMW, 517 U.S. at 575. Conduct that endangers a person's health or safety merits more punishment than purely economic harm. BMW, 517 U.S. at 576; see also Continental Trend Resources, Inc. v. OXY USA, Inc., 101 F.3d 634, 639 (10th Cir. 1996)("The appropriate penalty is no doubt below what would be justified if OXY's conduct caused loss of life, widespread health hazards, or major environmental injury .").
Here, the evidence about OCF's conduct justifies punishment. In the early 1950's, OCF began distributing Kaylo. A few years later, OCF bought the Kaylo line and became both manufacturer and distributor. There is evidence that OCF knew about the dangers of asbestos even before it began selling or manufacturing Kaylo, but nevertheless consciously engaged in a pattern and practice of failing to warn Kaylo users of such dangers. Thus, there is evidence that OCF's conduct over the years displayed an "indifference to or reckless disregard for the health and safety of others," including the plaintiffs here. See BMW, 517 U.S. at 576; see also Dunn, 1 F.3d at 1374-76. Consequently, the trial court's judgment does not offend constitutional due process guarantees under BMW's first guidepost.
Second, we must examine the ratio of compensatory to punitive damages. See BMW, 517 U.S. at 575; see also Kraus, 616 S.W.2d at 910 ("Exemplary damages must be reasonably proportioned to actual damages."). This is the "second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award . . . ." BMW, 517 U.S. at 580. In BMW, the punitive damage award (even after reduction by the Alabama Supreme Court) was 500 times the amount of the actual damage award. See BMW, 517 U.S. at 582.
Alabama law does not authorize recovery of compensatory damages for wrongful death claims. See Cherokee Elec. Coop. v. Cochran, 706 So.2d 1188, 1193 (Ala. 1997)(citing Ala. Code § 6-5-410 and holding that Alabama law does not allow recovery of compensatory damages in wrongful death cases). However, Alabama law does permit a decedent's spouse to recover for the loss of consortium that the survivin
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