SILVERADO STAGES, INC., PETITIONER v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND UNITED STATES OF AMERICA, RESPONDENTS

 

No. 14-1298

 

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

2016 U.S. App. LEXIS 629

 

December 9, 2015, Argued

January 15, 2016, Decided

 

 

PRIOR HISTORY:     [*1] On Petition for Review of an Order of the Federal Motor Carrier Safety Administration.

 

COUNSEL: William H. Shawn argued the cause and filed the briefs for petitioner.

 

Gerard Sinzdak, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Matthew M. Collette, Attorney.

 

JUDGES: Before: ROGERS, TATEL and WILKINS, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKINS.

 

OPINION BY: WILKINS

 

OPINION

WILKINS, Circuit Judge: Petitioner Silverado Stages, Inc., a California charter bus service, petitions this Court for review of a Federal Motor Carrier Safety Administration (“FMCSA”) determination denying Silverado’s petition for administrative review after the FMCSA publicly reported that Silverado violated a number of federal and state safety regulations. Because some of Silverado’s claims should have been brought before the District Court, and we find those properly before us meritless, we deny Silverado’s petition.

 

 

Congress requires the Department of Transportation (“DOT”) to “determine whether an owner or operator is fit to operate safely commercial motor vehicles,” based upon, among other things, “the [*2]  safety inspection record of such owner or operator.” 49 U.S.C. § 31144(a)(1). DOT is also required to “make such final safety fitness determinations readily available to the public.” Id. § 31144(a)(3). DOT has delegated these responsibilities to the FMCSA. See 49 C.F.R. § 1.86 (listing the overall responsibilities of the FMCSA).

The standards and procedures the FMCSA uses to determine the safety of motor carriers such as Silverado is provided in 49 C.F.R. § 385 et seq. See id. § 385.1(a) (“This part establishes the FMCSA’s procedures to determine the safety fitness of motor carriers, to assign safety ratings, to direct motor carriers to take remedial action when required, and to prohibit motor carriers receiving a safety rating of ‘unsatisfactory’ from operating a [commercial motor vehicle].”). These procedures require the FMCSA to assign each carrier a safety rating based on an on-site examination of that carrier’s operations. See id. § 385.9 (describing the procedure for assigning a safety rating). The result of that examination is twofold. First, the FMCSA issues violations to carriers found to be out of compliance with pertinent safety regulations. See id. pt. 385, App. A (explaining the safety audit evaluation process). The FMCSA may seek civil penalties for such violations. [*3]  See 49 U.S.C. § 521(b); 49 C.F.R. § 386.11(c). Second, based on these violations, as well as other factors such as the carrier’s accident history, see 49 C.F.R. § 385.7, the FMCSA assigns carriers one of three ratings: “satisfactory,” “conditional,” or “unsatisfactory,” id. § 385.3. An “unsatisfactory” rating precludes a carrier from operating a commercial motor vehicle in interstate commerce. 49 U.S.C. § 31144(c); 49 C.F.R. § 385.13.

A carrier may petition the FMCSA to review its safety rating pursuant to 49 C.F.R. § 385.15. The agency will adjust the carrier’s rating if it finds that it made “an error in assigning [the carrier’s] proposed or final safety rating.” Id. § 385.15(a). Because the FMCSA uses the § 385.15 review process to review only a carrier’s safety rating, the FMCSA typically will not review the validity of carrier safety violations as a part of that process. See FMCSA Order Dismissing Pet. For Admin. Review of Safety Rating (“FMCSA Order”), J.A. 13 (“In a petition filed under 49 CFR 385.15, the only relief afforded for any alleged errors in calculating a safety rating is an upgrade of Petitioner’s safety rating. Therefore, only errors affecting a safety rating will be addressed in a 49 CFR 385.15 proceeding.”). The FMCSA will review a carrier’s safety violations, in addition to the safety rating itself, when, and only when, the [*4]  agency is reviewing a carrier’s appeal of a less-than-“satisfactory” rating, and only if it is necessary to determine whether the FMCSA should change the carrier’s rating. See Resp’t’s Br. 18 n.2 (“To be clear, a carrier who received a ‘conditional’ or ‘unsatisfactory’ rating can challenge particular violations in the course of a § 385.15 proceeding, and FMCSA will correct violation information during that proceeding if the correction is necessary to its decision to upgrade a carrier’s safety rating.”).

The FMCSA provides information to the public about operating motor carriers through a searchable, web-based information database called the Safety Measurement System (“SMS”). See Safety Measurement System, FED. MOTOR CARRIER SAFETY ADMIN., https://ai.fmcsa.dot.gov/sms/ (last visited January 5, 2016). A carrier’s SMS profile displays the carrier’s overall safety rating, as well as specific information about violations that either the FMCSA or other agencies have issued against that carrier. These violations are grouped into seven categories, each of which is represented by a large icon displayed on the front page of the carrier’s profile. If an agency has issued certain violations against the carrier within a given category, [*5]  a large, yellow warning triangle is placed on top of that category icon.1 The FMCSA uses the SMS to collect violation information from a variety of sources, including the separate but related Motor Carrier Management Information System (“MCMIS”), to determine which carriers should be prioritized for inspections. See 79 Fed. Reg. 32,491, 32491-92 (June 5, 2014); 75 Fed. Reg. 18,256, 18,258 (Apr. 9, 2010).

 

1   More specifically, the FMCSA explains on each carrier’s SMS profile that the warning triangles denote that the carrier “exceeds the FMCSA Intervention threshold relative to its safety event grouping based upon roadside data and/or has been cited with one or more serious violations within the past 12 months during an investigation.” J.A. 94. Although warning triangles are removed from the carrier’s main SMS page after the requisite period, they remain visible on the carrier’s SMS history page. See J.A. 145-46.

To maintain the accuracy of the information displayed within the SMS, the FMCSA has created DataQs, “a web-based dispute resolution [system] that allows an individual to challenge data maintained by FMCSA.” Weaver v. FMCSA, 744 F.3d 142, 143, 408 U.S. App. D.C. 361 (D.C. Cir. 2014) (internal quotation marks omitted). The FMCSA allows carriers to use DataQs to challenge those safety violations that the FMCSA will not review through its § 385.15 process. [*6]  See 79 Fed. Reg. at 32,492 (“A driver has always been able to challenge the correctness of a violation that has been cited in a roadside inspection report using the DataQs system, whether a citation has been issued for that violation or not.”). DataQs users submit their requests for review by filling in text fields in a web application. See DataQs Analyst Guide § 3.1, available at https://dataqs.fmcsa.dot.gov/Data/Guide/DataQs_Users_Guide_and_Best_Practices_Manual.pdf. (providing background on the DataQs system). DataQs also permits users to provide additional information by submitting digital documents. See Resp’t’s Br. 16 (“[C]arriers are not only permitted, but encouraged to submit as much supporting documentation as they can when filing a DataQs request.” (citing DataQs Analyst Guide, supra, §§ 4.13-4.16)).

 

The FMCSA initiated an on-site examination of Silverado’s operations in April 2014. In June 2014, after completing that review, the FMCSA found Silverado to have violated a number of safety regulations. See J.A. 49-69. Notwithstanding these violations, the FMCSA issued Silverado a “satisfactory” rating, the highest rating available, presumably because the violations Silverado received were not substantial enough to warrant a lower rating. The FMCSA included these violations on Silverado’s SMS profile, which resulted in the imposition [*7]  of warning triangles over four of the seven categories displayed on Silverado’s profile. See J.A. 96.2

 

2   Silverado’s profile later displayed only three warning triangles after the FMCSA removed the alleged violations listed under the “Hours-of-Service Compliance” category. See J.A. 94; see also Pet’r’s Opening Br. 6 (displaying a screen grab of Silverado’s SMS web profile).

Silverado claims that the public display of these allegedly erroneous violations has caused it to lose several high-value contracts.

Silverado filed a § 385.15 petition with the FMCSA in October 2014. The petition did not challenge Silverado’s “satisfactory” rating; it alleged only that the violations displayed on its SMS profile were erroneous. The FMCSA dismissed Silverado’s petition, stating that “[i]n a petition filed under 49 CFR 385.15, the only relief afforded for any alleged errors in calculating a safety rating is an upgrade of Petitioner’s safety rating.” FMCSA Order, J.A. 13. The agency explained that “[c]hallenges to the impact of the compliance review data [i.e., Silverado’s safety violations] on the SMS [profile] are not within the subject matter jurisdiction of a request for administrative review of a safety rating under 49 C.F.R. 385.15.” Id.

Silverado filed [*8]  a petition for our review of the FMCSA’s dismissal on December 23, 2014. Several months later, in March 2015, Silverado submitted a number of DataQs requests, urging the FMCSA to remove the allegedly erroneous violations posted on its SMS profile.

 

Silverado’s petition for review boils down to two arguments. First, Silverado contests the FMCSA’s dismissal of Silverado’s § 385.15 petition by arguing that the dismissal was arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.3 Second, it contends that the violations issued against it are invalid because they were not promulgated pursuant to notice-and-comment procedures and because they constitute impermissible sanctions. The first of these arguments lacks merit because the FMCSA was not required to provide Silverado with any more process than it received; the second is foreclosed by our decision in Weaver, 744 F.3d at 144-48.

 

3   Silverado also claims that the FMCSA violated its “administrative due process rights.” See, e.g., Pet’r’s Opening Br. 22, 26. Yet it does not explain from where it derives such a right, or how the alleged violation differs from its claim that the FMCSA acted arbitrarily and capriciously. Accordingly, we will treat Silverado’s [*9]  discussion of “administrative due process” as part and parcel of its arbitrary and capricious claim under 5 U.S.C. § 706.

 

Before reaching these arguments, however, we pause to address Silverado’s criticism of the FMCSA’s DataQs system, which runs throughout Silverado’s briefing. Silverado calls it a “Twitter-like void,” Pet’r’s Opening Br. 22, and “opaque,” Pet’r’s Reply Br. 8. It also complains that “there is no time limit or other requirements obligating the charging state organization to respond” to DataQs requests. Pet’r’s Opening Br. 22. Although the FMCSA contests much of Silverado’s criticism, see, e.g., Resp’t’s Br. 15-16 (arguing that DataQs is not a “twitter-like void” because “carriers . . . face no word limitations” and are “encouraged to submit as much supporting documentations as they can”), at oral argument, the FMCSA acknowledged that there is no deadline by which the FMCSA must respond to a DataQs request. In fact, Silverado submitted its DataQs requests in March 2015 — more than nine months ago — yet the FMCSA has not responded to a number of Silverado’s requests.

Despite this criticism, Silverado explicitly states in its reply brief that “[t]his is not an appeal of or collateral attack [*10]  upon the FMCSA’s DataQ and its deficiencies; rather, this appeal is a challenge to Respondent FMCSA’s failure to correct its damaging and erroneous SMS violations . . . .” Pet’r’s Reply Br. 1; see also id. at 5 (titling a section “Silverado Did Not Challenge and Need Not Have Challenged SMS and DataQ in Its 385.15 Petition Below”). Nor could Silverado mount a challenge to the DataQs system in this proceeding. The record indicates that Silverado did not submit its DataQs requests until approximately three months after it petitioned this Court for review of the FMCSA’s order denying Silverado’s § 385.15 petition. See Ass’n of Flight Attendants-CWA v. Chao, 493 F.3d 155, 158, 377 U.S. App. D.C. 182 (D.C. Cir. 2007) (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S. Ct. 459, 82 L. Ed. 638 (1938))); cf. Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155, 67 S. Ct. 245, 91 L. Ed. 136, 11 Alaska 236 (1946) (“A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented . . . .”); Hinson v. NTSB, 57 F.3d 1144, 1149, 313 U.S. App. D.C. 59 (D.C. Cir. 1995) (“[I]n most circumstances a reviewing court should not adjudicate issues not raised in the administrative proceeding below, so that the agency has an opportunity to consider and resolve the objections prior to judicial review, and the reviewing court has the benefit of a full record.” (citing [*11]  United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S. Ct. 67, 97 L. Ed. 54 (1952))).

Because Silverado is not challenging the validity or effectiveness of the DataQs system, we will assume, for the purposes of Silverado’s petition, that the DataQs system provides carriers with an adequate process for achieving review over the information displayed on SMS profiles.4

 

4   Certainly, because the DataQs process is the only means by which motor carriers can receive review over certain potentially erroneous violations — violations which are publicly displayed on the FMCSA’s website — we expect that the FMCSA will be particularly mindful of complaints such as Silverado’s, and will work to ensure that motor carriers receive appropriate responses to their DataQs requests in a timely fashion. Should the FMCSA fail to respond in a timely fashion, carriers such as Silverado may seek a writ of mandamus compelling agency action. See, e.g., In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418-20, 362 U.S. App. D.C. 46 (D.C. Cir. 2004) (granting mandamus where the agency had failed to respond to a petition under the Endangered Species Act for a significant period of time).

 

Silverado’s arbitrary and capricious claim relies on a flawed fundamental premise: that the FMCSA’s refusal to review safety violations within the confines of a § 385.15 petition is impermissible because it “exempt[s] an entire [*12]  class of on-line summary violations of law from any pre-or-post-violation challenge by the alleged violator.” Pet’r’s Opening Br. 20.

Silverado’s claim must fail because that fundamental premise is incorrect. The DataQs process is not exempt from challenge; carriers are provided with an opportunity to appeal and correct erroneous violations. See DataQs Analyst Guide, supra, § 3.2 (explaining that carriers may use the DataQs system to “request the review of various types of data including . . . data documented during a roadside safety inspection” and “data collected during investigations”); 79 Fed. Reg. at 32,492.

Moreover, an agency’s interpretation of its own regulations is generally “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) (internal quotation marks omitted). Here, the FMCSA has interpreted § 385.15 to permit only those petitions that seek review of a carrier’s safety rating and not its individual safety violations. This is a reasonable interpretation. The consequences of a less-than-“satisfactory” rating can be severe — most notably by precluding the carrier from operating in interstate commerce. See 49 U.S.C. § 31144(c)(1); 49 C.F.R. § 385.13. It is therefore sensible for the FMCSA to prioritize review for those carriers with sub-par ratings; it [*13]  ensures that the FMCSA’s compliance review process precludes only those carriers that should, in fact, be kept from operating. Carriers with satisfactory ratings may still have their violations reviewed; they simply must use the DataQs system, rather than the § 385.15 review process, to do so.

 

Silverado’s remaining argument — that the FMCSA, in issuing safety violations against Silverado, failed to comply with notice-and-comment procedures and levied impermissible sanctions against it — is not properly before this Court. According to our decision in Weaver, such challenges must be brought in the first instance before the District Court.

In Weaver, petitioners challenged the FMCSA’s refusal to remove a safety violation contained in an individual driver’s MCMIS profile after petitioners filed a DataQs request with the FMCSA seeking the violation’s removal. See 744 F.3d at 143-44. Petitioners brought their challenge to the FMCSA’s refusal directly to this Court pursuant to the Hobbs Act, 28 U.S.C. § 2342, which provides this Court with exclusive jurisdiction over a determination that concerns, among other things, the validity of “all rules, regulations or final orders” of the FMCSA. 28 U.S.C. § 2342(3); see also Weaver, 744 F.3d at 144-45; Am. Trucking Ass’ns, Inc. v. FMCSA, 724 F.3d 243, 246, 406 U.S. App. D.C. 312 (D.C. Cir. 2013). We held that the FMCSA’s refusal [*14]  to remove the carrier’s violation did not constitute a final agency action under the Hobbs Act, and that therefore petitioners needed to bring their challenge in the District Court. Weaver, 744 F.3d at 146-48.

Following Weaver, we hold that Silverado’s challenge to its safety violations must also be brought initially before the District Court. Accordingly, we lack authority to hear Silverado’s safety violations challenge.

***

For the foregoing reasons, we deny the petition for review.

So ordered.

United States Court of Appeals,

Ninth Circuit.

Randolph G. BACHRACH, Plaintiff–Appellant,

v.

COVENANT TRANSPORTATION INCORPORATED, a Tennessee corporation; et al., Defendants–Appellees.

No. 13–16363.

|

Argued and Submitted Oct. 21, 2015.

|

Filed Jan. 14, 2016.

Attorneys and Law Firms

Kevin Koelbel, Law Offices of Kevin Koelbel, P.C., Chandler, AZ, Thomas A. Zlaket, Thomas A. Zlaket, P.L.L.C., Tucson, AZ, for Plaintiff–Appellant.

Theodore J. Boutrous, Jr., Esquire, Gibson Dunn & Crutcher LLP, Los Angeles, CA, Timothy James Casey, Esquire, Litigation Counsel, Schmitt Schneck Smyth Casey & Even, P.C., Warren E. Platt, Snell & Wilmer L.L.P., Phoenix, AZ, Joshua S. Lipshutz, Esquire, Joseph Richard Rose, Gibson, Dunn & Crutcher LLP, San Francisco, CA, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Ancer L. Haggerty, Senior District Judge, Presiding. D.C. No. 2:10–cv–00315–ALH.

Before THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit Judges.

 

 

MEMORANDUM*

*1 This action arises out of a motor vehicle accident in which the plaintiff’s adult son, Matthew Bachrach, died after colliding with an overturned tractor trailer owned by Covenant Transportation. At the time of his death, Matthew was thirty-one years old, with a pregnant wife, and two young children; neither his wife nor his children are parties to this lawsuit. Randolph Bachrach, Matthew’s father, brought this action for wrongful death against Covenant Transportation and the driver of the tractor trailer, Alfred Simister, in Arizona state court.1 The case was removed to the United States District Court for the District of Arizona based on diversity of citizenship.

 

The district court granted partial summary judgment to the defendants with respect to the plaintiff’s claim for punitive damages, and the defendants stipulated to liability for Matthew’s wrongful death. The court then held a two-day trial to determine the amount of compensatory damages that should be awarded to the plaintiff for loss of consortium and pain and suffering. The jury awarded $3.718 million. The district judge, after examining verdicts in similar Arizona cases, found that this verdict was irrationally high in light of the evidence presented at the trail. Bachrach v. Covenant Transp., Inc., No. 2:10–CV–00315–PHK–GMK, 2012 WL 2317768, at *1, *4 (D. Ariz. June 18, 2012). Accordingly, he granted a remittitur to $400,000, or in the alternative, a new trial.

 

Bachrach rejected the remittitur and a second trial was held. The second jury awarded him $575,000. Bachrach appeals, arguing that: (1) the district court abused its discretion by granting a remittitur, and (2) the district court should not have granted summary judgment on the issue of punitive damages.

 

1. Federal courts sitting in diversity must apply the law of the state to measure whether a remittitur is appropriate. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 429–31 (1996). This court reviews a remittitur decision for an abuse of discretion, id . at 419, which requires us to determine whether the court “based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence,” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc).

 

Arizona courts employ a two-step inquiry for remittitur. First, if a court finds that the jury award was driven by “passion or prejudice,” then the court must order a new trial without option for remittitur. Young Candy & Tobacco Co. v. Montoya, 372 P.2d 703, 706–07 (Ariz.1962). Second, if the court determines that the verdict has not been influenced by passion or prejudice, it may grant remittitur of compensatory damages if it determines that: viewed in the light most favorable to sustaining the verdict, there is no “substantial evidence,” “permitting reasonable persons to reach such a result,” Hutcherson v. City of Phoenix, 961 P.2d 449, 451 (Ariz.1998) (en banc); or that “the jury misapplied the principles governing damages,” In re Estate of Hanscome, 254 P.3d 397, 401 (Ariz.Ct.App.2011).2

 

*2 The district court appropriately identified and applied this two-step inquiry. It stated that: “If passion and prejudice tainted the jury’s verdict, the court must grant a new trial.” Bachrach, 2012 WL 2317768 at *1. Otherwise, “[r]emittitur is appropriate if there is a ‘lack of evidence to support the damages awarded’ … The evidence is viewed in the light most favorable to sustaining the verdict.” Id. at *1 (quoting Hanscome, 354 P.3d at 402). It concluded that the verdict had not been tainted by passion or prejudice, but that, even when viewed in the light most favorable to the plaintiffs, the verdict was “irrationally high.” Id. at *4. The district court based its decision on undisputed evidence in the record: Matthew and Randolph Bachrach had a complex relationship; that relationship had improved over the years, but in the year before Matthew died, the two spoke on the phone only occasionally and had not met in person at all-not even for the holidays. Id. at *4. Based on this undisputed testimony, the district court concluded that their relationship could not support an award for compensatory damages that was “several times larger” than any other Arizona case cited by the parties involving the death of an adult child as the result of a similar type of accident. Id. at *4.3 In short, the district court found that there was no substantial evidence supporting the amount of the jury’s verdict. We have no basis on which to disturb that finding.

 

Bachrach argues that the judge abused his discretion by comparing the verdict in this case to verdicts in similar Arizona cases. He bases this argument on dicta from two Arizona Court of Appeals cases, which caution that careless verdict comparison can lead to undesirable results. See Jones v. Pak–Mor Mfg. Co., 700 P.2d 830, 839 (Ariz.Ct.App.1984) approved in part, vacated in part, 700 P.2d 819 (Ariz.1985); Wry v. Dial, 503 P.2d 979, 990–91 (Ariz.Ct.App.1972). In the intervening decades since these cases, however, the Arizona Supreme Court has not disavowed or expressed skepticism toward verdict comparison, and Arizona courts have in other instances compared verdicts in order to determine when otherwise intangible damages should be remitted. See, e.g., Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 454 (Ariz.Ct.App.2015); Rincon v. Rumsey, 2010 Ariz.Super. LEXIS 1176, at 27–30 (Pima Cty.Super. Ct. May 26, 2010).

 

Here, the district judge did not base his decision on the kind of careless verdict comparison of which the Arizona Courts of Appeals warned. Instead, he used verdicts in Arizona cases brought by one or more parents involving the death of an adult child following an automobile accident. Sixteen of the 19 verdicts involved awards of less than $1 million. Of these, 11 verdicts involved awards of $200,000 or less. As to the remaining verdicts, no parent received more than $1.5 million. Bachrach, 2012 WL 2317768, at *3.4 Thus, the highest comparable Arizona verdict was less than half of the amount awarded to Bachrach. Id. After concluding that the $3.718 million verdict in this case was exceptionally large, the judge then examined the evidence and determined that it did not support such an objectively large verdict. Since the district judge’s selection of cases was neither arbitrary nor unreasonable, and because he did not rely solely on verdict comparison in granting the remittitur, but also determined that there was not substantial evidence that justified the amount of damages, we cannot conclude that his decision constituted an abuse of discretion. Accordingly, we affirm.

 

*3 2. Bachrach also argues that the district court improperly granted partial summary judgment with respect to his claim for punitive damages. He requests a reversal of this judgment and a new trial solely on this issue. We review grants of partial summary judgment de novo. Amdahl Corp. v. Profit Freight Sys., Inc., 65 F.3d 144, 146 (9th Cir.1995).

 

In Arizona, punitive damages are only appropriate when the plaintiff can prove that “defendant’s evil hand was guided by an evil mind.” Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 (Ariz.1987) (en banc) (quoting Rawlings v. Apodaca, 726 P.2d 565, 578 (Ariz.1986)). This standard requires “ ‘something more’ than gross negligence” or “mere reckless disregard of the circumstances.” Id. Instead, the plaintiff must show, by clear and convincing evidence, that the defendant acted with either “1) evil actions; 2) spiteful motives; or 3) outrageous, oppressive, or intolerable conduct that creates substantial risk of tremendous harm to others.” Id.

 

To justify his claim for punitive damages, Bachrach argued that the accident was the result of Simister falling asleep at the wheel. Falling asleep, however, cannot be sufficient to show that either Simister or Covenant acted with an “evil mind.” Bachrach failed to introduce other evidence that, coupled with the evidence that Simister fell asleep, would have been sufficient to raise a material issue of fact that either Simister or Covenant had the requisite mens rea to justify punitive damages.5 Accordingly, the district court appropriately granted summary judgment.

 

AFFIRMED.

 

 

McKEOWN, J., dissenting:

 

*3 I respectfully dissent; I would reverse the remittitur. Under Arizona law, a court may grant remittitur only if: (1) The verdict is “so manifestly unfair, unreasonable, and outrageous as to shock the conscience of the court.” Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 6 (2001) (citations omitted); (2) there is no “substantial evidence [ ] permitting reasonable persons to reach such a result.” Hutcherson v. City of Phoenix, 192 Ariz. 51, 53 (1998); or (3) “[t]he jury misapplied the principles governing damages.” In re Estate of Hanscome, 227 Ariz. 158, 162 (Ct.App.2011). Although the district court correctly found that there was no passion or prejudice in the jury award, its decision ultimately was untethered from the applicable Arizona standards—concluding that the verdict was “excessively high,” essentially re-weighing the evidence, and failing to give proper deference to the jury’s determination. See Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 369 (1962).

 

All Citations

— Fed.Appx. —-, 2016 WL 191983

 

 

Footnotes

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36–3.

1

Carrie Bachrach, Randolph Bachrach’s former spouse and Matthew’s mother, was originally a party to the suit. She has since settled her claim with Covenant Transportation, and accordingly, any facts relevant to her claim or compensation are not at issue in this appeal and will not be discussed here. Matthew and Carrie Bachrach also sued another Covenant Transportation employee, but that defendant was subsequently dropped from the case. Because Matthew’s wife and children are not parties to this case, we give no consideration to their rights on this appeal.

2

Arizona courts have also allowed remittitur of punitive damages when the remittitur shocks the conscience. See, e.g., Haralson v. Fisher Surveying, Inc., 31 P.3d 114, 119–20 (Ariz.2001) (en banc); Acheson v. Shafter, 490 P.2d 832, 835 (Ariz.1971).

3

The district court also considered one Arizona case, cited by the plaintiff, in which the adult child was murdered. As the district court noted, however, the manner of death was “quite different” than a motor vehicle accident which “could affect the jury’s analysis.” Bachrach, 2012 WL2317768, at *4.

4

The verdicts considered by the district court were those submitted to it by the parties. The district court, however, rejected almost all of the plaintiffs’ cases because they were not Arizona cases. In comparison, all of the cases cited by the defendants were taken from the Trial Reporter, Compendium of Central and Northern Arizona and from the Compendium of Southern Arizona for the years 1999–2009, and were verdicts in which the jury awarded one or both parents compensatory damages for the wrongful death of their adult, male child after an automobile accident. According to the sworn declaration of the defendant’s attorney, the defendants cited all of the cases in the Compendia fitting this description in their remittitur motion. In one of the three cases in which $1 million or more was awarded, the parent received $1.5 million for the death of her 19–year–old son. In another, each of the child’s parents received that sum after their son, a young Air Force Academy graduate, was struck by a commercial truck while riding his motorcycle. In the third, each parent received $500,000, making a total of $1 million.

5

It is quite possible that, under Arizona law, someone who fell asleep at the wheel after knowingly driving in excess of regulations limiting the number of hours a person may operate a vehicle would have the requisite mens rea. See Quintero v. Rogers, 212 P.3d 874, 880 (Ariz.Ct.App.2009); Olson v. Walker, 781 P.2d 1015, 1019 (Ariz.Ct.App.1989). Bachrach, however, did not produce any evidence that suggests this was so. Indeed, Simister’s logbook showed that he had been driving for less than the maximum hours of service, and the evidence Bachrach produced to show that the logbook was falsified actually shows that Simister had been driving for even less than the hours logged.