Roth v. Farner-Bocken Co.

[¶ 1.] Greg Roth (Roth) brought claims of age discrimination and invasion of privacy against his former employer, Farner-Boeken Company (Farner). A jury returned a verdict finding in favor of Farner on Roth’s age discrimination claim and a verdict in favor of Roth on the invasion of privacy claim. It awarded Roth $25,000 in compensatory damages and $500,000 in punitive damages. Farner appeals. We affirm in part, reverse in part and remand.

FACTS AND PROCEDURE

[¶ 2.] Roth worked as a salesman for Vending Services, a separate Farner related corporation, in Sioux Falls, South Dakota from 1975 until approximately 1990. In 1990 Roth transferred as a sales manager to Farner-Boeken Centerville Company, another related corporation, located in Centerville, Iowa. While in Centerville, Roth experienced personal problems. He was drinking heavily, was charged with stalking, and was hospitalized and diagnosed with bipolar disorder. Roth also had problems with his relationships with customers and co-workers, and Farner eventually determined he could not remain in Centerville. Roth was rehired by Vending Services and was transferred to Rapid City, South Dakota to start up a new territory.

[¶ 3.] In this position, he was under the supervision of Gary Schmidt (Schmidt), whose office was located in Sioux Falls. 1 Roth, who had joined Alcoholics Anonymous, continued to have problems with coworkers and Farner continued to receive customer complaints. Ultimately, Farner determined that it would terminate Roth. On July 12, 1996, a meeting was scheduled between Roth, Schmidt and Cy Farner, part owner of Farner, at which Farner intended to terminate Roth’s employment. Roth, who had previously had conversations with Cy Farner, in which Cy Farner indicated they were both getting too old for the business, anticipated termination and secretly tape recorded the meeting. After the meeting, in which Roth was indeed terminated, Cy Farner handed Roth an airplane ticket to Rapid City, $20 and requested that Roth return the keys to the company car.

*658 [¶ 4.] After his termination, Roth met with Attorney Rick Johnson of Gregory, South Dakota, to discuss the possibility of an age discrimination claim against Far-ner. Roth left a package with Johnson which contained the tape-recording, a transcript of his termination meeting, a handwritten document Roth had compiled regarding his background with the company and his experiences during the last six months of employment, hand-written notes documenting phone calls to Schmidt and Cy Farner, and copies of work week records and documents recording his sales. This package was reviewed by Attorney Stephanie Pochop (Pochop) of Johnson’s office. Pochop determined that she was unable to take Roth’s case, drafted a letter advising Roth of this, and returned the package to him with the letter in a large mailing envelope. However, due to a clerical error, both the letter and the package were mailed to Roth at Vending Services’ Sioux Falls address.

[¶ 5.] Schmidt received the package and testified at trial that he opened it in the regular course of business. However, after opening the package, Schmidt testified that he realized the transcript it contained was of a recording of the termination meeting. Schmidt then photocopied the entire contents of the package, including Pochop’s letter, and forwarded the photocopies to Farner’s Vice President of Sales, Dean Onken, who forwarded them to Farner’s President, John Norgaard. Schmidt then removed the No.10 business envelope bearing Pochop’s law firm’s address from the original mailing envelope and attached it to a new mailing envelope. Over the original mailing address which listed Vending Service’s Sioux Falls address, Schmidt pasted a type-written label bearing Roth’s home address. Schmidt testified he then dropped this package in the mail to Roth.

[¶ 6.] Sometime in 1998, Vending Services and many other separate Farner related corporations combined, merging into one surviving corporation named Farner-Bocken Company. In August 1998, Roth filed a lawsuit alleging age discrimination against Farner. During the discovery process, Roth obtained his personnel file from Farner. 2 In that file, Roth discovered copies of the documents he left with Attorney Johnson. Additionally, the file also contained a letter concerning Roth’s age discrimination claim against Farner from Attorney Johnson addressed to an attorney in West Des Moines, Iowa with a notation that a carbon copy was sent to Roth. On April 12, 2000, Roth amended his complaint to include an invasion of privacy claim.

[¶ 7.] The jury returned a verdict on behalf of Farner on Roth’s age discrimination claim, but found for Roth on his invasion of privacy claim. After the verdict was filed, Farner filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied. Farner appeals.

STANDARD OF REVIEW

[¶ 8.] A trial court’s rulings on a motion for directed verdict and judgment notwithstanding the verdict are reviewed under the following standard:

A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial *659 evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15 — 6—50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdiet[.]

In re Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590-91 (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460) (citation omitted).

[¶ 9.] Our standard of review on a motion for a new trial is well established:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case could reasonably have reached such a conclusion.

Biegler v. American Family Mutual Ins. Co., 2001 SD 13, ¶ 17, 621 N.W.2d 592, 598 (quoting Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 95).

[¶ 10.] “[A] jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law.” Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)). “A verdict should only be set aside if the jury’s conclusion was unreasonable and a clear illustration of its failure to impartially apply ‘the reasoning faculty on the facts before them.’ ” Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980)) (additional citations omitted).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 11.] Whether the trial court erred in denying Farner’s motions for directed verdict and judgment notwithstanding the verdict.

A. Sufficiency of evidence supporting fraudulent concealment

[¶ 12.] At the end of Roth’s case-in-chief, and again at the end of trial, Farner moved the court for a directed verdict on Roth’s invasion of privacy claim. The court denied Farner’s motions and Roth’s invasion of privacy claim was submitted to the jury who rendered a verdict in favor of Roth. Farner then filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied and judgment was entered on the jury’s verdict.

[¶ 13.] The statute of limitations on a claim of invasion of privacy is three years. See SDCL 15-2-14. However, the jury found, and the trial court agreed, that Farner fraudulently concealed its invasion of Roth’s privacy and the statute was tolled.

*660 [¶ 14.] “Fraudulent concealment tolls the statute of limitations until the claim is discovered or might have been discovered with reasonable diligence.” Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 14, 581 N.W.2d 510, 515 (citations omitted). Fraudulent concealment applies “when actionable conduct or injury has been concealed by deceptive act or artifice.” Id. Absent a confidential or fiduciary relationship, fraudulent concealment consists of “some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action.” Id. (quoting Koenig v. Lambert, 527 N.W.2d 903, 905-06 (S.D.1995) (overruled on other grounds)).

[¶ 15.] Nothing in the record indicates a confidential or fiduciary relationship. Therefore, Roth must show 1) that Farner took affirmative steps to prevent discovery of Roth’s claim or its underlying facts; and 2) that Roth exercised diligence to discover the cause of action. See Strassburg, 1998 SD 72 at ¶ 15, 581 N.W.2d at 515.

[¶ 16.] In this case, there was testimony that the No. 10 business-size envelope bearing the law firm’s address was removed from the original mailing envelope and attached to a new plain mailing envelope. Additionally, a label bearing Roth’s home address was typed and pasted over Farner’s address on the original No. 10 envelope. There was also evidence that the law firm sent a second letter to Roth at Farner’s address, a photocopy of which was later discovered in Roth’s personnel file. This constitutes competent and substantial evidence that Farner engaged in an affirmative act or conduct designed to prevent discovery of Roth’s invasion of privacy cause of action.

[¶ 17.] Farner contends that Roth had constructive notice of the fraudulent concealment and thus failed to exercise diligence in discovering his invasion of privacy claim. Farner argues that Roth testified that he noticed the Sioux Falls post mark on the new mailing envelope when he received it, and Pochop’s letter inside the envelope still bore the address of Farner in Sioux Falls. Farner also argues that there was a gap between the time which Roth was advised by Pochop that she was returning his documents and the time Roth received the envelope posted by Far-ner. Therefore, Farner contends that Roth had notice of his invasion of privacy claim at the time it occurred and, as a result, cannot rely on Farner’s fraudulent concealment to toll the statute of limitations.

[¶ 18.] Roth, however, testified that he did not notice the Farner address on Pochop’s letter and that he was not aware that Farner had opened, read, photocopied, and disseminated his mail until Farner produced a copy of Roth’s personnel file during discovery in his age discrimination claim. Furthermore, Roth testified that he had never seen the second letter the law firm sent to Roth at the Farner address until he received the copy of his personnel file. Based on this, there was sufficient evidence by which the jury could conclude that Roth acted with diligence in discovering his invasion of privacy claim.

B. Sufficiency of evidence supporting jury’s verdict on invasion of privacy claim

[¶ 19.] To recover on an invasion of the right to privacy claim, a claimant must show an “unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another.” Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 424 (S.D.1994) (citing Baldwin v. First Nat’l Bank of Black Hills, 362 N.W.2d 85, 88 (S.D.1985)). Furthermore, “[t]he invasion must be one which would *661 be offensive and objectionable to a reasonable man of ordinary sensibilities.” Montgomery Ward v. Shape, 286 N.W.2d 806, 808 (S.D.1979) (citations omitted).

[¶ 20.] “In resolving sufficiency of evidence issues on appeal, this court should examine the record to determine only if there is competent and substantial evidence to support the verdict.” Kjerstad, 517 N.W.2d at 424 (quoting Holmes v. Wegman Oil Co., 492 N.W.2d 107, 111 (S.D.1992)). “All conflicts are resolved and all reasonable inferences are drawn in favor of the prevailing party.” Id.

[¶ 21.] Although we have not addressed an invasion of privacy claim based on the opening and reading of personal mail, other jurisdictions have found that such a claim lies in an action for invasion of privacy. See Birnbaum v. U.S., 588 F.2d 319, 326 (2d Cir.1978) (recognizing state law claim against a private person for intrusion of privacy based on opening and reading sealed mail); Vernars v. Young, 539 F.2d 966, 969 (3d Cir.1976) (recognizing cause of action and indicating private individuals have a “reasonable expectation that their personal mail will not be opened and read by unauthorized persons); and Doe v. Kohn, Nast & Graf, P.C., 866 F.Supp. 190, 195-96 (E.D.Pa.1994)(indicating “[a]n employer is not authorized to open mail addressed to a person at his workplace that appears to be personal,]” and reasonable minds could differ as to whether intrusion occurred when letters were opened, copied and retained) (citation omitted)).

[¶ 22.] In this case, there is sufficient evidence in the record indicating that reasonable minds could differ as to whether Farner had intruded upon Roth’s seclusion, and the issue was properly submitted to the jury. Schmidt testified that after he opened the envelope addressed to Roth at Farner’s business address, Schmidt realized it was from a law firm and meant for Roth, personally. Yet, Schmidt read the entire contents of the packet, made photocopies and disseminated them to his superior at Farner. Additionally, there was circumstantial evidence that a second letter from the same law firm addressed to Roth at Farner’s business address was opened, read, photocopied and disseminated at Farner.

[¶ 23.] Therefore, there was competent and substantial evidence upon which a jury could find Farner liable for invading Roth’s privacy.

ISSUE TWO

[¶24.] Whether the trial court erred in denying Farner’s motion for a new trial.

C. Sufficiency of evidence supporting compensatory damages

[¶ 25.] Farner contends that there was insufficient evidence to support an award of compensatory damages and that the award of $25,000 was excessive, arbitrary and a result of passion or prejudice and not supported by the evidence. Farner claims that the trial court erred in denying its motion for judgment n.o.v., its motion for a new trial and alternatively argues that the compensatory damage award should be remitted. When considering whether a jury verdict is sustained by the evidence:

[W]e are not to speculate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered had we been the jury. The real and only question to be solved and answered is, Is there any legal evidence upon which the verdict can properly be based, and the conclusions embraced in and covered by it be fairly reached?

*662 Biegler, 2001 SD 13 at ¶32, 621 N.W.2d at 602 (quoting Bakker v. Irvine, 519 N.W.2d 41, 49 (S.D.1994) (emphasis in original)).

[¶ 26.] Generally, “[t]he amount of damages to be awarded is a factual issue to be determined by the trier of fact.” Estate of Pamela He Crow, 494 N.W.2d 186, 192 (S.D.1992). However, “[a]n award of compensatory damages must not be the product of passion and prejudice and must be supported by the evidence.” Engels v. Ranger Bar, Inc., 2000 SD 1, ¶ 30, 604 N.W.2d 241, 247. The test for determining if the jury verdict is the product of passion or prejudice is:

The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption.

Stormo v. Strong, 469 N.W.2d 816, 826 (S.D.1991) (quoting Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281, 283 (1921) (citations omitted)). We review the issue on appeal under the clearly erroneous standard. He Crow, 494 N.W.2d at 192 (citation omitted).

[¶ 27.] In Kjerstad, 517 N.W.2d at 424-25 we indicated there was competent evidence to support an award for compensatory damages on an invasion of privacy claim when the record reflected evidence that the plaintiffs had suffered both physical and emotional reactions to the invasion and had incurred medical expenses. We held the evidence supported compensatory damage awards of $500 and $200 in invasion of privacy claim when plaintiffs presented evidence that defendant had observed them using the restroom. However, we did not indicate that plaintiffs bringing invasion of privacy claims were required to demonstrate they had incurred medical expenses as a result of the invasion.

[¶ 28.] Other courts that have been asked to review awards for compensatory damages in invasion of privacy claims have struggled in their attempts to measure damages. See Hill v. McKinley, 311 F.3d 899, 906-07 (8th Cir.2002)(affirming jury’s award of $2,500 in compensatory damages on invasion of privacy claim); Mitchell v. Globe International, 817 F.Supp. 72, 74-75 (W.D.Ark.1993) (remitting compensatory damage award in invasion of privacy claim on remand from Eighth Circuit Court of Appeals with directions to substantially remit award); Rohrbaugh v. Wal-Mart Stores, Inc., 212 W.Va. 358, 572 S.E.2d 881, 888 (2002) (adopting Restatement (Second) of Torts’ (1977) position on damages for invasion of privacy claim and, additionally, holding that if none of the Restatement damages are proven, nominal compensatory damages are to be awarded). 3

[¶ 29.] The Mitchell case involved an invasion of privacy claim based on publication of a picture of the 96-year-old plaintiff, a resident of Mountain Home, Arkansas, in a supermarket tabloid to illustrate a story about “ Taper Gal, Audrey Wiles’ in Sterling, Australia, who had become pregnant by one of her customers, a ‘reclusive millionaire’ she met on her newspaper route.’ ” Mitchell, 817 F.Supp. at 72. The *663 Eighth Circuit Court of Appeals remanded that case for a substantial remittitur of compensatory damages after concluding that while the evidence supported a compensatory damage award, the amount awarded by the jury — $650,000—was shocking and exaggerated. Id. at 73.

[¶ 30.] In its decision remitting the compensatory damage award the federal district court believed “the Harrison, Arkansas, jury, chosen from all walks of life, was better situated to make that decision than this court[.]” It said, “This is an especially difficult task where the damages to be awarded are based on intangibles such as damage to reputation and mental suffering.” Id. at 73. Ultimately, the court remitted the compensatory damage award to $150,000, because it believed the damages suffered by plaintiff due to the defendant’s conduct were worth that much.

[¶ 31.] Additionally, in Sabrina v. Willman, 4 Neb.App. 149, 540 N.W.2d 364, 370-71 (1995), the Nebraska Court of Appeals addressed the issue of damages for a statutory invasion of privacy claim. The court indicated that its review of other jurisdictions revealed that the “gravamen of this tort is ‘the injury to the feelings of the plaintiff, and the mental anguish and distress caused thereby.’ ” Id. at 370 (quoting Fernandez v. United Acceptance Corp., 125 Ariz. 459, 462, 610 P.2d 461, 464 (Ariz.Ct.App.1980)). “Once a party has established that the defendant has intruded, the defendant is liable for damages.” Sabrina, 540 N.W.2d at 370.

[¶ 32.] In addressing invasion of privacy claims, courts have “recognized that damages in this area can be difficult to ascertain or measure by a pecuniary standard!;.]” Sabrina, 540 N.W.2d at 370 (citations omitted). Therefore, “[realizing the difficulty in determining damages, courts have found that a trier of fact is uniquely qualified to assess damages.” Id. The Nebraska court concluded that in an invasion of privacy claim “the amount of damages should almost always be in the hands of the jury.” Id. at 371.

[¶ 33.] In this case, a South Dakota jury found Farner had committed an “unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another.” See Kjerstad, 517 N.W.2d at 424. Furthermore, the jury found the invasion at issue — the opening, reading, photocopying and dissemination of Roth’s mail — was “one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.” See Shope, 286 N.W.2d at 808.

[¶ 34.] Additionally, the jury heard testimony from Roth that he felt angry, betrayed and devastated upon learning of the invasion. Roth also testified that he sought help with his feelings over the intrusion from his sponsor and friends at Alcoholic’s Anonymous. Roth also testified that one of the documents in the intercepted package was a handwritten note, created upon the advice of his attorney, which documented Roth’s experiences and feelings during his last few months of employment at Farner. Roth’s wife testified that he was very hurt upon learning of the invasion, felt deceived and could not believe that somebody would open his mail and do that. She further testified that Roth could not sleep at night and drank a lot of coffee. Upon hearing the evidence and being instructed to fix the amount of damages based on findings of the harm to Roth’s privacy interest and emotional distress suffered, the jury awarded the sum of $25,000 in compensatory damages.

[¶ 35.] Although the amount of the jury’s award in this case gives us pause, we cannot say that there was no legal evidence upon which it could be based. “[T]his Court cannot ‘reweigh the *664 evidence or gauge the credibility of the witnesses’ when reviewing the jury’s verdict.” Sporleder v. VanLiere, 1997 SD 110, ¶ 27, 569 N.W.2d 8, 15 (quoting Andreson v. Black Hills Power & Light Co., 1997 SD 12, ¶ 8, 559 N.W.2d 886, 888 (citations omitted)). Furthermore, we cannot say the trial court, after hearing the evidence, erred in denying Farner’s motion for judgment n.o.v. or its motion for a new trial on this issue.

D. Statements of Roth’s counsel in closing argument

[¶ 36.] Farner contends that Roth’s counsel made statements in closing argument that were unsupported by the evidence and intended to inflame and prejudice the jury. As a result, Farner contends a new trial is warranted.

[¶ 87.] We recognize that “counsel are allowed wide latitude in argument and that a court should not too narrowly limit the manner and form of presentation and the inferences and conclusions to be drawn from the evidence, so long as unfair means are not employed to prejudice the jury.” Binegar v. Day, 80 S.D. 141, 151, 120 N.W.2d 521, 527 (1963). Furthermore,

A plaintiff should not be penalized for the misstatements of his counsel and the granting of a new trial should not be used to discipline counsel. An appellate court should interfere only when from an examination of the entire record, it is convinced that there has been a miscarriage of justice.

Id.

[¶ 38.] During closing argument, Roth’s attorney did make the statement, “I was admonished not to tell you that it’s not illegal to tape record conversations and so I’m not going to tell you that” after the trial court had earlier sustained an objection to a similar remark and struck a portion of the earlier statement from the record. However, this second statement was made in rebuttal, after counsel for Farner had made a statement to the effect, “he puts in his pocket a tape recorder and secretly records the final conversation ... and he then wants to have you return a verdict in his favor on invasion of privacy.”

[¶ 39.] Furthermore, while it is true that counsel for Roth characterized Farner’s conduct as evil and its employees as a pack of jackals, counsel for Farner did not object to these statements at trial. We have previously held that such objections not properly raised at trial cannot be reviewed by this Court on appeal. Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989).

[¶ 40.] Finally, Roth’s counsel made a comment in closing argument regarding defense counsel and the alleged scattering of the copies of the Pochop package throughout Roth’s personnel file, to the effect “their own lawyers are in on that cover-up, and they are the ones that produced those documents to us.” The record indicates that the defense objected at the time of trial, and the trial court advised the jury to “use their own recollection of what the evidence is.” It is a well-settled premise of our system that a jury will use their reason in weighing the evidence and follow the instructions of the trial court. See State v. Holzer, 2000 SD 75, ¶ 20, 611 N.W.2d 647, 654.

[¶ 41.] Based on a review of the entire record, it cannot be said that the trial court abused its discretion in denying Far-ner’s motion for a new trial. “[T]he trial court had the benefit of hearing the same evidence as did the jury, and of observing the jury itself for indications that passion or prejudice may have influenced their verdict.” Stormo, 469 N.W.2d at 826 (citations omitted).

*665 E. Amount of punitive damages award

[¶ 42.] Farner contends that the punitive damages awarded by the jury — $500,-000 — are excessive and the result of passion and prejudice. Farner contends the punitive damages award violates the due process clause of the United States Constitution.

[¶ 43.] We have previously indicated that, in order to overturn a jury’s award of punitive damages, “the amount ‘must be so excessive as to strike mankind, at first blush, as being, beyond all measure unreasonable and outrageous, and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant!.]’ ” Leisinger v. Jacobson, 2002 SD 108, ¶ 9, 651 N.W.2d 693, 696 (quoting Flockhart v. Wyant, 467 N.W.2d 473, 479 (S.D.1991)).

[¶ 44.] Additionally, although states have discretion to impose punitive damages to punish and deter, “it is well established that there are procedural and substantive constitutional limitations on these awards.” State Farm v. Campbell, — U.S. -, 123 S.Ct. 1513, 1519, 155 L.Ed.2d 585 (2003) (additional citations omitted). “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Id. at 1519-20. Thus, “[p]unitive damages awards must comply with the due process clause’s ‘general concern for reasonableness.’ ” Pulla v. Amoco Oil Co., 72 F.3d 648, 658 (8th Cir.1995) (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 458, 113 S.Ct. 2711, 2720, 125 L.Ed.2d 366 (1993)(additional citation omitted)). Our standard of review is de novo. 4 ,

[¶ 45.] “[Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a state may impose.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 1598, 134 L.Ed.2d 809 (1996)). “To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42, 111 S.Ct. 1032, 1056, 113 L.Ed.2d 1 (1991) (O’Connor, J., dissenting)).

[¶ 46.] Out of concerns that punitive damage awards may be imposed indiscriminately and may be awarded in grossly excessive amounts, the Supreme Court has developed three guideposts to assist courts in reviewing punitive damage awards:

1) the degree of reprehensibility of the defendant’s misconduct,

2) the disparity between the harm (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 *666 civil penalties authorized or imposed in comparable cases.

Campbel l, - U.S. at -, 123 S.Ct. at 1520 (citing Gore, 517 U.S. at 575-86, 116 S.Ct. at 1599-1604). See also Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,