PRESENT:   All the Justices

VICTORIA COALSON
                                               OPINION BY
v.   Record No. 130837                 JUSTICE S. BERNARD GOODWYN
                                            February 27, 2014
VICTOR CANCHOLA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Bruce D. White, Judge

      In this appeal, we consider whether the circuit court erred

in remitting a jury’s award of punitive damages.

                               Background

      On March 1, 2011, Victoria Coalson (Coalson) and Michael

Stemke (Stemke) each filed lawsuits in the Circuit Court of

Fairfax County against Victor Canchola (Canchola) seeking

compensatory and punitive damages for personal injuries

sustained in an automobile accident.   The circuit court

consolidated Coalson’s and Stemke’s actions.

      At the conclusion of the trial, the jury awarded Coalson

$5,600 in compensatory damages and $100,000 in punitive damages

against Canchola.   Stemke received $14,000 in compensatory

damages and $100,000 in punitive damages.   The circuit court

entered a final order on January 11, 2013, but the court

suspended the order for fourteen days to give the parties an

opportunity to file post-trial motions and submit an amended

final order if they wished.   Canchola filed a post-trial motion

for remittitur of both punitive damages awards, arguing that the
awards were excessive under Virginia law and the Due Process

Clause of the Fourteenth Amendment.

        The circuit court found that Canchola’s conduct was

egregious.      Nevertheless, it noted “a significant disparity”

between the plaintiffs’ compensatory damages awards, although

both punitive damages awards were the same.      Based on this

disparity, it concluded that Coalson’s award was arbitrarily

made.       The circuit court remitted Coalson’s punitive damages to

$50,000.      While it recognized that “[t]here is no bright line or

formula to be applied[,]” the court reduced the award to “less

than a ten percent ratio.”

        The circuit court entered an order granting Canchola’s

motion for remittitur regarding Coalson’s punitive damages award

on February 8, 2013.      On February 28, 2013, the court entered an

amended final order reflecting its remittitur ruling, noting

Coalson’s acceptance under protest, summarizing the proceedings,

denying Coalson’s motion to reconsider and awarding post-

judgment interest.      Coalson filed a notice of appeal with the

circuit court on March 21, 2013. 1


        1
       Rule 5:9(a) states that a party must file her notice of
appeal within 30 days of entry of the trial court’s final order.
Rule 5:5(b) provides for an extension of time to file a notice
of appeal if the trial court “modifie[s]” its final order. The
rule also states that “the time for filing the notice of appeal
shall be computed from the date of final judgment entered
following such modification.” Rule 5:5(b). The circuit court’s
February 8, 2013 order granting Canchola’s motion for remittitur

                                    2
                              Facts

     At approximately 6:30 p.m. on February 15, 2009, Canchola

was driving and talking on his cellular telephone when he

attempted to turn left at an intersection on Waxpool Road in

Loudoun County.   He turned in front of a vehicle driven by

Coalson, who had the right of way and was unable to stop before

colliding with the passenger door of Canchola’s vehicle.

Coalson and her passenger, Stemke, suffered minor injuries.

     Canchola, who was intoxicated at the time of the accident,

had an extensive record of driving while intoxicated.   Between

1991 and 1997, Canchola was convicted six times of driving while

intoxicated and once of driving with a suspended license.     In

1996, his driver’s license was revoked.   In 2004, he was

convicted yet again of driving while intoxicated in California.

     The night before the accident, Canchola stayed at a hotel

in Ashburn, Virginia, with his girlfriend Lori Rudegeair

(Rudegeair), who was visiting from Pennsylvania.   At brunch in

Alexandria on the day of the accident, Canchola drank several


modified the original judgment and tolled the thirty-day time
limit, but it was not a final order because Coalson could still
exercise her right to accept remittitur under protest pursuant
to Code § 8.01-383.1. See Ragan v. Woodcroft Village
Apartments, 255 Va. 322, 327, 497 S.E.2d 740, 743 (1998)
(defining “final order or judgment” as “one that disposes of the
whole subject of the case and gives all relief contemplated”).
On February 28 the circuit court entered an amended final
judgment noting Coalson’s acceptance under protest, and Coalson
filed her notice within thirty days of the February 28 order,
making her notice timely.

                                3
glasses of champagne.   Afterward, Canchola and Rudegeair walked

to a nearby pub, and Canchola drank two rounds of his favorite

drink combination, a vodka martini and light beer.   They left

the pub sometime after 3:30 p.m. when a police officer called

Canchola to inform him that a vehicle Canchola had reported

missing was located in Leesburg, Virginia.   Because Canchola

slurred his speech while speaking to the police officer, the

officer advised Canchola not to drive when he came to pick up

the vehicle.

     Despite the warning, Canchola drove Rudegeair’s car to

Leesburg.   He stopped approximately a block from where he was

supposed to meet the officer and had Rudegeair drive the rest of

the way.    After Canchola finished speaking to the officer and

claiming the vehicle, which was found in good condition, and

after having been warned by the officer not to drive, Canchola

left the scene as Rudegeair’s passenger.   They drove a short

distance, waited for a few minutes and returned to Canchola’s

vehicle after the police officer left.   Canchola then drove his

vehicle to another bar.   Rudegeair followed in her car.   There,

Canchola drank at least two rounds of the vodka and light beer

combination and three additional shots of liquor within a short

period of time.

     Canchola and Rudegeair left the bar to return to the hotel

in separate vehicles.   As Canchola approached the intersection


                                 4
where he was to turn left into the hotel entrance, he began a

conversation on his cellular telephone.   He was engaged in that

conversation when he turned left in front of the vehicle driven

by Coalson.   According to uncontradicted testimony of an expert

toxicologist, Canchola’s blood alcohol content was almost twice

the legal limit at the time of the accident.

     After Coalson collided with Canchola, Canchola removed his

vehicle from the scene of the accident, parked it and left in

Rudegeair’s vehicle.   He was subsequently arrested upon

returning to the hotel.   Canchola urged Rudegeair not to tell

anyone that he had been driving his vehicle when the accident

occurred.   Rudegeair initially lied to police but later told the

truth under oath.

                             Analysis

     Coalson argues that the circuit court erred in remitting

her punitive damages award because the circuit court’s decision

was based upon comparing her punitive damages award to Stemke’s

punitive damages award and upon the proportionality of her

punitive damages award in relation to her compensatory damages

award.   Coalson asserts that proportionality is not the only

consideration in determining the excessiveness of punitive

damages under Virginia law and that a higher ratio between

compensatory and punitive damages was proper in this case due to

“the egregiousness of [Canchola’s] conduct and the potential


                                5
harm that could have resulted from his actions.”   Coalson

emphasizes that neither this Court nor the United States Supreme

Court has created a “bright-line test.”   Although she does not

base her appeal on constitutional grounds, Coalson maintains

that Virginia’s remittitur analysis for punitive damages is

“framed in, and derived from” federal constitutional law.

Consequently, she urges the Court to consider “potential harm”

as well as actual harm in reinstating the jury’s punitive

damages award.

     Canchola contends that the circuit court properly

considered and applied all of the remittitur factors and

constitutional guidelines before granting his motion.    He

disputes Coalson’s assertion that the Court should consider

“hypothetical damages” she could have sustained.   He argues that

considering what could have happened is not supported by this

Court’s jurisprudence and would require a jury to engage in

improper speculation.   Canchola claims that in evaluating the

reprehensibility of his actions, the proper focus should be on

his conduct at the time of the accident, not on “every unsavory

act [he] committed over time.”   According to Canchola, Coalson

places too much emphasis on punishment and reprehensibility and

ignores proportionality.

     “The purpose of punitive damages is to provide ‘protection

of the public, . . . punishment to [the] defendant, and . . . a


                                 6
warning and example to deter him and others from committing like

offenses.’”   Huffman v. Love, 245 Va. 311, 315, 427 S.E.2d 357,

361 (1993) (quoting Baker v. Marcus, 201 Va. 905, 909, 114

S.E.2d 617, 620 (1960)).   This Court has observed that punitive

damages are meant to warn, not to compensate the plaintiff.      Doe

v. Isaacs, 265 Va. 531, 539, 579 S.E.2d 174, 179 (2003).     A

punitive damages award is generally left to the jury’s

discretion because there is no set standard for determining the

amount of punitive damages.   Worrie v. Boze, 198 Va. 533, 544,

95 S.E.2d 192, 201 (1956).

     To justify remittitur, a jury’s award must be so excessive

that it shocks the conscience of the trial court, indicating

that the jury’s decision was motivated by “passion, corruption

or prejudice.”   Condominium Servs., Inc. v. First Owners’ Ass’n

of Forty Six Hundred Condo., Inc., 281 Va. 561, 580, 709 S.E.2d

163, 175 (2011) (quoting Smithey v. Sinclair Refining Co., 203

Va. 142, 146, 122 S.E.2d 872, 875-76 (1961)).   When a trial

court considers whether to remit a jury’s punitive damages

award, its review of the punitive damages award should consider

the “reasonableness between the damages sustained and the amount

of the award and the measurement of punishment required, whether

the award will amount to a double recovery, the proportionality

between the compensatory and punitive damages, and the ability




                                7
of the defendant to pay.”   Poulston v. Rock, 251 Va. 254, 263,

467 S.E.2d 479, 484 (1996) (citations omitted).

     In evaluating whether punitive damages were properly

remitted, this Court performs a de novo review, examines the

record independently and gives “substantial weight” to the trial

court’s action.   Baldwin v. McConnell, 273 Va. 650, 657, 643

S.E.2d 703, 706 (2007) (quoting Poulston, 251 Va. at 263, 467

S.E.2d at 484).

     The circuit court reduced the amount of Coalson’s punitive

damages award because the jury awarded the same amount in

punitive damages to Coalson as it did to Stemke despite their

different compensatory damages awards.   Also, the circuit court

ruled that the 1:17.86 ratio between Coalson’s compensatory and

punitive damages was too high.

     We have not previously addressed whether it is proper to

compare punitive damages awards in evaluating excessiveness.

However, in Allied Concrete Co. v. Lester, 285 Va. 295, 312, 736

S.E.2d 699, 708 (2013), this Court held that a trial court may

not compare verdicts to evaluate the excessiveness of

compensatory damages.   Likewise, in John Crane, Inc. v. Jones,

274 Va. 581, 595, 650 S.E.2d 851, 858 (2007), the Court declined

to compare verdicts in determining whether compensatory damages

were excessive.




                                 8
     We hold that the same rationale stated in John Crane, Inc.

is true regarding comparing punitive damages awards:

“[Comparing verdicts] is not probative of whether a verdict is

excessive; rather that determination must be made based on the

facts and circumstances of each case.”   Id.    The circuit court’s

consideration of Coalson’s and Stemke’s relative ratios of

compensatory damages to punitive damages as a basis for granting

remittitur was error.   See Allied Concrete Co., 285 Va. at 312,

736 S.E.2d at 708. 2

     We agree with the circuit court that Canchola’s conduct was

egregious.   Canchola was driving while intoxicated and without a

license, which had been revoked because of previous instances of

driving while intoxicated.   Despite having at least seven

convictions for driving while intoxicated on his record,

Canchola drove on several occasions on the day of the accident

while drinking alcohol throughout the day.     He ignored a police

officer’s warning not to drive and engaged in deception so that

the officer would not discover he was driving, after which he

drank even more and then attempted to drive again.    After

causing an accident that could have resulted in serious


     2
       We note that federal courts sometimes compare verdicts to
evaluate whether punitive damages are excessive as a matter of
federal constitutional law. See, e.g., Saunders v. Branch
Banking & Trust Co. of Va., 526 F.3d 142, 154 (4th Cir. 2008)
(comparing punitive damages awards in other Fair Credit
Reporting Act cases).

                                9
injuries, Canchola fled the scene and asked his girlfriend to

lie about his involvement.

     The jury was instructed that it could award Coalson damages

to compensate her for her injuries, including bodily injuries,

pain and mental anguish, inconvenience and medical expenses.

The court further instructed the jury that if it awarded Coalson

compensatory damages, it could also award punitive damages if it

found that Canchola “acted under circumstances amounting to a

willful and wanton disregard for the plaintiffs’ rights.”    The

punitive damages instruction clearly stated that the purpose of

punitive damages was to punish Canchola and to “prevent others

from acting in a similar way.”

     Coalson’s punitive damages are reasonably related to her

actual damages and to the degree of necessary punishment, which

in this case is great.    See Philip Morris Inc. v. Emerson, 235

Va. 380, 414, 368 S.E.2d 268, 287 (1988).    “Given the clear

determination of the basis for each award and the ample evidence

supporting each award, our independent review of the record does

not suggest double recovery in this case.”    Baldwin, 273 Va. at

659, 643 S.E.2d at 707.   The ratio of Coalson’s compensatory

damages to punitive damages awarded by the jury is 1:17.86.

This is high, but given the reprehensible and dangerous nature

of Canchola’s conduct, it is not “unreasonable or strikingly out

of proportion.”   Id.; Poulston, 251 Va. at 263, 467 S.E.2d at


                                 10
484.       The court expressly stated that the parties did not

present evidence on Canchola’s ability to pay. 3     See Condominium

Servs., 281 Va. at 581, 709 S.E.2d at 175 (“[A defendant who has

failed to present evidence of his ability to pay at trial]

cannot prevail before this Court on [his] claim that the amount

of punitive damages would be oppressive.”).

       Canchola’s conduct was egregious enough to warrant a

punitive damages award, and the amount of punitive damages

awarded by the jury does not shock the Court’s conscience.

Virginia precedent indicates that the circuit court should not

have remitted the punitive damages award.

       It is not clear from the record whether the circuit court

granted Canchola’s motion for remittitur on state law or federal

constitutional law grounds.       Thus, we will analyze the award

considering relevant federal constitutional law as well.

       The United States Supreme Court has prescribed three

guidelines for appellate courts to use in reviewing whether

punitive damages are so excessive as to violate a defendant’s

right to due process: “(1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive

damages award; and (3) the difference between the punitive


       3
       Canchola acknowledged the same in his motion for
remittitur and during oral argument before the circuit court.

                                    11
damages awarded by the jury and the civil penalties authorized

or imposed in comparable cases.”     State Farm Mut. Auto. Ins. Co.

v. Campbell, 538 U.S. 408, 418 (2003).    The Supreme Court has

further provided factors for evaluating the first guideline,

which is the most important of the three:

     [W]hether[] the harm caused was physical as opposed to
     economic; the tortious conduct evinced an indifference to
     or a reckless disregard of the health or safety of others;
     the target of the conduct had financial vulnerability; the
     conduct involved repeated actions or was an isolated
     incident; and the harm was the result of intentional
     malice, trickery, or deceit, or mere accident.

Id. at 419.

     These considerations weigh against remittitur on due

process grounds.   Virginia certainly has an interest in

promoting public safety through prevention and deterrence of

driving while intoxicated.   See BMW of North America, Inc. v.

Gore, 517 U.S. 559, 568 (1996) (“[T]he federal excessiveness

inquiry appropriately begins with an identification of the state

interests that a punitive award is designed to serve.”).

Although the collision was an accident, Canchola deliberately

chose to drive while severely intoxicated, which resulted in

physical injury.   Canchola’s determined persistence to drive

while intoxicated and his reckless disregard for the safety of

others is evidenced by his seven prior driving while intoxicated

convictions and by his behavior on the day of the accident.       See

id. at 576-77 (“[E]vidence that a defendant has repeatedly


                                12
engaged in prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for an argument

that strong medicine is required to cure the defendant’s

disrespect for the law.”).   Furthermore, a defendant’s conduct

that endangers many is more reprehensible than conduct that only

endangers a few.   Philip Morris USA v. Williams, 549 U.S. 346,

357 (2007).   Canchola puts other drivers at risk every time he

drinks and drives.

     The Supreme Court has repeatedly stated that ratios between

actual or potential harm and punitive damages should generally

be within single digits to satisfy due process requirements.

State Farm, 538 U.S. at 425.   Nevertheless, it has also

recognized that higher ratios may be constitutional where a

defendant’s actions are exceptionally reprehensible but result

in small economic damage.    See id. (reaffirming that there are

no “rigid benchmarks” and indicating that courts should consider

each case “based upon the facts and circumstances of the

defendant’s conduct and the harm to the plaintiff”); see also

Saunders, 526 F.3d at 154 (citing federal appellate court

decisions upholding higher ratios).   Driving while intoxicated

could result in death, and it was fortunate that Coalson and

Stemke suffered relatively minor injuries.   “While the circuit

court observed what it took to be a significant disparity

between the punitive award and the compensatory award, that


                                13
contrast ‘dissipates when one considers the potential loss to

[Coalson] . . . .’”   TXO Prod. Corp. v. Alliance Res. Corp., 509

U.S. 443, 449-51, 462 (1993) (upholding a ratio of 1:526).

     In upholding a ratio of 1:80 in Saunders, the Fourth

Circuit observed that rigidly adhering to a single digit ratio

in all cases could sometimes prevent punitive damages from

fulfilling their purposes of punishment and deterrence.     526

F.3d at 154.   For this reason, the court determined that

remitting the punitive damages award in that case “would leave

little deterrent or punitive effect.”   Id.    The 1:17.86 ratio in

this case is not excessive, for Canchola has demonstrated a need

for stronger medicine to cure his disrespect for the law.

     Additionally, a comparison of criminal and civil penalties

for habitually driving while intoxicated and for driving with a

revoked license supports the jury’s punitive damages award.        The

Commonwealth punishes repeated instances of driving while

intoxicated by increasing fines and mandatory sentences.     See

Code §§ 18.2-266 and -270.   In addition to the statutory scheme

for punishing driving while intoxicated, the legislature has

prescribed punishments for habitual offenders in the form of

license revocation, mandatory safety courses and increasing

penalties for driving without a license.      See, e.g., Code §§

46.2-389 (mandatory revocation of license upon conviction of

driving while intoxicated); 46.2-355.1 (mandatory participation


                                14
in safety course upon second offense of driving with revoked

license); 46.2-391 (mandatory three-year revocation for multiple

convictions of driving while intoxicated); see also § 46.2-357

(minimum one year and maximum five years’ imprisonment for

felony offense of driving with revoked license while

intoxicated).   These penalties demonstrate the seriousness with

which Virginia views the act of driving while intoxicated with a

suspended or revoked license.   See State Farm, 538 U.S. at 428

(noting that criminal penalties are less useful for determining

the precise amount of a punitive damages award).    Upon

consideration of the constitutional guidelines provided by the

United States Supreme Court, we conclude that the jury’s

punitive damages award is not excessive under the Due Process

Clause of the Fourteenth Amendment.

                            Conclusion

     Therefore, we hold that the circuit court erred in granting

Canchola’s motion for remittitur because Coalson’s punitive

damages award was not excessive under Virginia law nor did it

offend Canchola’s due process rights.    Accordingly, the judgment

of the circuit court will be reversed, the jury verdict awarding

Coalson $100,000 in punitive damages will be reinstated, and

final judgment will be entered on the verdict.

                                        Reversed and final judgment.




                                15
JUSTICE McCLANAHAN, dissenting.

     The jury awarded Coalson $100,000 in punitive damages,

which was nearly 18 times the amount of her compensatory damage

award of $5,600.   I would affirm the judgment of the circuit

court ordering remittitur of a portion of the punitive damages

and reducing the award to $50,000, still almost 9 times the

amount of compensatory damages.

     While not expressly overruling this Court’s precedent, the

majority opinion makes clear that the “reasonableness between

the damages sustained and the amount of the award” as well as

“the proportionality between the compensatory and punitive

damages,” Baldwin v. McConnell, 273 Va. 650, 658, 643 S.E.2d

703, 706 (2007), are hardly relevant to the circuit court’s

consideration of whether to remit a portion of a punitive

damages award. What is also clear is that the majority affords

little weight to the circuit court’s action, rather than the

“substantial weight” the circuit court is due.   Id. at 657, 643

S.E.2d at 707 (quoting Poulston v. Rock, 251 Va. 254, 263, 467

S.E.2d 479, 484 (1996)).

     Following this Court’s previous directives, the circuit

court employed the proper analysis in considering Canchola’s

motion for remittitur.   In reaching its decision, the circuit

court explained,




                                  16
            I did take into consideration the Virginia
            Supreme Court factors; reasonableness
            between the damages sustained and the
            amount of the award, the measurement of
            punishment required, whether the award will
            amount to a double recovery, the
            proportionality between the compensatory
            and punitive damages, and the ability of
            the Defendant to pay, such that there is
            any evidence on those items for me.

These are precisely the factors this Court has repeatedly

instructed circuit courts to consider.    See Baldwin, 273 Va. at

658, 643 S.E.2d at 707 (judicial review upon motion for

remittitur “requires” consideration of the following: 1.

reasonableness between damages sustained and amount of award;

2. measurement of punishment required; 3. whether award will

amount to double recovery; 4. proportionality between the

compensatory and punitive damages; and 5. ability of defendant

to pay); see also Condominium Servs., Inc. v. First Owners’

Ass’n of Forty Six Hundred Condo., Inc., 281 Va. 561, 580, 709

S.E.2d 163, 175 (2011); Poulston, 251 Va. at 263, 467 S.E.2d at

484.

       Upon consideration of these factors, the circuit court

concluded the punitive damages award to Coalson was excessive in

relation to her compensatory damages.    Finding the award

“arbitrary,” the court noted it was “troubling to [it] that

there is a significant disparity between the compensatory damage

award for one Plaintiff, and the compensatory damage award for



                                 17
the other Plaintiff,” while the “punitive damage award, in each

of the cases, is one hundred thousand dollars.”      Furthermore,

“considering the proportionality between the compensatory and

the punitive damage award[ ]” to Coalson, the circuit court

found the almost 1-to-18 ratio disproportionate and excessive,

particularly in light of the 1-to-7 ratio the compensatory

damages bore to the punitive damages in the verdict for Stemke. 1

     The amount of the circuit court’s remittitur was certainly

consistent with prior precedent.       This Court has found a

proportionality of punitive damages 2.5 times the compensatory

damages an acceptable ratio, Poulston, 251 Va. at 263, 467

S.E.2d at 484; Condominium Servs., Inc., 281 Va. at 580, 709

S.E.2d at 175, as well as a proportionality of punitive damages

approximately 6.6 and 6.7 times the compensatory damages, Philip

Morris, Inc. v. Emerson, 235 Va. 380, 414, 368 S.E.2d 268, 287

(1988).   In Stemke’s case, the punitive damages awarded were

approximately 7 times his compensatory damages, which the

circuit court found reasonable.    In light of the ratios of

punitive to compensatory damage awards previously found

acceptable by this Court and the ratio found acceptable by the

circuit court in Stemke’s case, which involved the same accident

and conduct of the defendant, I believe the circuit court


     1
       While the circuit court found Coalson’s award excessive,
it denied the motion for remittitur of Stemke's award.

                                  18
properly ordered the remittitur of a portion of Coalson’s

punitive damages and reduction of her award from an amount that

was nearly 18 times her compensatory damages to an amount that

was nearly 9 times her compensatory damages.

     I disagree that it was error for the circuit court to

consider the punitive and compensatory damages awarded to Stemke

in determining the reasonableness between the damages sustained

by Coalson and the amount of her punitive damage award.    The

compensatory damages awarded to Stemke were 2.5 times more than

the compensatory damages awarded to Coalson, yet, as the circuit

court observed, the punitive damages awarded to each were the

same, leading the circuit court to conclude the amount of

punitive damages awarded to Coalson was arbitrary rather than

bearing a reasonable relation to the compensatory damages and

the punishment required.   See Stubbs v. Cowden, 179 Va. 190,

201, 18 S.E.2d 275, 280 (1942)(“The damages awarded should bear

some reasonable proportion to the real damages sustained and to

the measure of punishment required; otherwise, they indicate

prejudice or partiality.”). 2   As compared to Stemke’s punitive

damage verdict, which was a little over 7 times the compensatory


     2
       The requirement that the punitive damages bear a
reasonable relationship to the actual damages has led this Court
to remand an award of punitive damages to the circuit court for
reconsideration when it has reversed a portion of the
compensatory damages. Little v. Cooke, 274 Va. 697, 719, 652
S.E.2d 129, 142 (2007).

                                 19
damage verdict, the jury verdict for Coalson against the same

defendant for the same conduct amounted to nearly 18 times the

verdict.   In other words, the jury punished Canchola more

severely for the injuries sustained by Coalson than for the

injuries sustained by Stemke arising from the same accident.     If

not arbitrary, the award was based on partiality toward Coalson

or prejudice against Canchola.

     This Court’s prior holdings that prohibit the comparison of

jury verdicts awarding compensatory damages are not applicable.

In John Crane, Inc. v. Jones, 274 Va. 581, 595, 650 S.E.2d 851,

858 (2007) and Rose v. Jaques, 268 Va. 137, 159, 597 S.E.2d 64,

77 (2004), this Court rejected the “average verdict rule,” which

compares statewide or nationwide jury verdicts to reach an

“average verdict,” because such a rule is not relevant to the

extent of actual pain and suffering experienced by the

plaintiff.   In Allied Concrete Co. v. Lester, 285 Va. 295, 312,

736 S.E.2d 699, 708 (2013), the Court relied upon its holdings

in John Crane and Rose to conclude that it was error for the

trial court to compare injuries suffered by the plaintiffs. 3

However, the rationale that a verdict for one person’s pain and

suffering is not a reasonable basis on which to judge the


     3
       As I stated in Allied Concrete, 285 Va. at 316 n.3, 736
S.E.2d at 710 n.3 (McClanahan, J., concurring in part and
dissenting in part), I did not agree that the trial court in
that case engaged in improper verdict comparison.

                                 20
excessiveness of a verdict for another person’s pain and

suffering can only apply when the issue involves the

excessiveness of a compensatory damage award.   Ignoring the

rationale of these holdings, the majority has adopted a bright-

line rule forbidding any comparison of verdicts, even when such

a comparison is actually probative of the analysis and dictated

by reason.

     Indeed, our own Court compares ratios found acceptable in

other cases that involve not only different plaintiffs, but also

different defendants, different conduct, and different types of

actions entirely.   See Baldwin, 273 Va. at 659, 643 S.E.2d at

707 (noting the punitive damage award approved in Poulston was

two and one-half times the compensatory award); Condominium

Servs., Inc., 281 Va. at 581, 709 S.E.2d at 175 (noting the

punitive damage award in Poulston of 2.5 times the compensatory

award and a punitive damage award in Philip Morris of 6.6 times

the compensatory award).   In this case involving a single

automobile accident and a consolidated trial, the circuit court

compared the ratios as between two injured plaintiffs against

one defendant who caused their injuries.   Arguably, then, the

circuit court’s comparison of the verdicts in this case was more

probative to the issue of reasonableness and proportionality,

than the comparisons this Court has made to ratios in unrelated

cases.


                                21
     Presumably, we will “‘give substantial weight to the trial

court’s action and affirm it, unless, from our view of the

record, the trial court acted improperly.’”   Baldwin, 273 Va. at

657, 643 S.E.2d at 706 (quoting Poulston, 251 Va. at 263, 467

S.E.2d at 484).   Nevertheless, despite the circuit court’s

faithful application of the law and the obvious disparity of

ratios of compensatory to punitive damages between the Coalson

and Stemke awards, each of which were based on the same conduct

of Canchola, the majority finds the circuit court’s action

improper.   In Allied Concrete, 285 Va. at 317, 736 S.E.2d at

711, I expressed my belief that “for all practical purposes the

last nail in the coffin of remittitur [of compensatory damages]

has been driven.”   It appears that remittitur of punitive

damages has suffered the same fate.




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