C. Limitations of Teasley v. Mathis and State v. Moseley in Addressing Georgia's Constitutional Jury-Trial Right Before we apply the Nestlehutt framework to Taylor's claims, we note that Devereux and the special concurrence assert that we need not engage in this analysis and should instead rely on two of our prior cases: Teasley v. Mathis , 243 Ga. 561, (255 S.E.2d 57) (1979), and State v. Moseley , 263 Ga. 680, (436 S.E.2d 632) (1993), which held that certain legislatively-imposed limitations on punitive damages did not violate Georgia's constitutional right to a jury trial. See Teasley , 243 Ga. at 564, 255 S.E.2d 57 ; Moseley , 263 Ga. at 681, 436 S.E.2d 632.
Since the goal is to punish and deter the defendant, we noted that it is "insignificant under the statute that the plaintiff does not receive the full award." See Mack Trucks v. Conkle, 263 Ga. 539, 541-544 ( 436 S.E.2d 635) (1993); State of Ga. v. Moseley, 263 Ga. 680, 681-682 ( 436 S.E.2d 632) (1993) (holding that subsection (e) (2) does not violate the right to a jury trial or the "right of choice" provisions under Art. I, Sec. I, Pars. XI XII of the Georgia Constitution), cert. denied 511 U.S. 1107 ( 114 S.C. 2101, 128 L.Ed.2d 663) (1994).Mack Trucks, 263 Ga. at 542.
Four cases have spoken on the constitutionality of § 51-12-5.1(e)(2). See McBride v. Gen. Motors Corp., 737 F. Supp. 1563 (M.D. Ga. 1990); Mack Trucks, Inc. v. Conkle, 436 S.E.2d 635 (Ga. 1993); State v. Moseley, 436 S.E.2d 632 (Ga. 1993); Ford v. Uniroyal Goodrich Tire Co., 476 S.E.2d 565 (Ga. 1996). Out of the four, only the earliest, McBride, struck down the statute as unconstitutional.
The very existence of the caps, in any amount, is violative of the right to trial by jury. Contrary to appellant's assertion, State of Ga. v. Moseley, 263 Ga. 680 (2) ( 436 SE2d 632) (1993) and Teasley v. Mathis, 243 Ga. 561 (2) ( 255 SE2d 57) (1979) do not support a different result, as these cases addressed statutory limits on punitive damages, which, "[u]nlike the measure of actual damages suffered . . . [are] not really a `fact' `tried' by the jury." (Citations omitted.)
Contrary to the finding of the trial court, this Court has held that Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel. Couch v. Parker, 280 Ga. 580, 581 (1) ( 630 SE2d 364) (2006); State of Ga. v. Moseley, 263 Ga. 680, 682 (3) ( 436 SE2d 632) (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412-413 (2), (3) ( 321 SE2d 330) (1984). "Thus, there is no express constitutional 'right of access to the courts' under the Georgia Constitution.
Durham v. U-Haul Int'l, 745 N.E.2d 755, 764 (Ind. 2001); Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019, 1022 (Ind. 1986); see also Gordon v. State, 608 So.2d 800, 801 (Fla. 1992);State v. Moseley, 436 S.E.2d 632, 634 (Ga. 1993); Shepherd Components, Inc. v. Brice Petrides-Donohue Assoc., Inc., 473 N.W.2d 612, 619 (Iowa 1991). Specifically, any interest the plaintiff has in a punitive damages award is a creation of state law.
Because this case involves only a reduction of the jury award, we do not address the constitutionality of additur or increasing a jury verdict. See State of Ga. v. Moseley, 263 Ga. 680, 681 ( 436 S.E.2d 632) (1993), cert. denied, ___ U.S. ___ ( 114 S.C. 2101, 128 L.Ed.2d 663) (1994). See Dimick v. Schiedt, 293 U.S. 474, 486 ( 55 S.C. 296, 79 LE 603) (1935) ("Where the verdict is excessive, . . . the remittitur has the effect of merely lopping off an excrescence.")
The Georgia Supreme Court has recently repeated that “Art. I, Sec. I, Par. XII was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel.” Smith v. Baptiste, 287 Ga. 23, 24(1), 694 S.E.2d 83 (2010), citing Couch v. Parker, 280 Ga. 580, 581(1), 630 S.E.2d 364 (2006); see also Santana v. Ga. Power Co., 269 Ga. 127, 129(4), 498 S.E.2d 521 (1998) (Art. I, § 1, Par. XII “is a right of choice' between self-representation and representation by counsel provision, and not an ‘access to the courts' provision”) (citations and punctuation omitted); State of Ga. v. Moseley, 263 Ga. 680, 682(3), 436 S.E.2d 632 (1993); Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 412–413(2), (3), 321 S.E.2d 330 (1984); Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 198 S.E.2d 144 (1973). As our Supreme Court has also noted, these authorities establish that “there is no express constitutional ‘right of access to the courts' under the Georgia Constitution.”
But the General Assembly did not intend that the effect of the Act was to pauperize, bankrupt, or destroy the individual tortfeasor; to this end, the General Assembly has placed various limitations on awards of punitive damages and the recipient in recognition of the many degrees of culpability. O.C.G.A. § 51-12-5.1 (a)(d)(1); Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 230(4) ( 476 S.E.2d 565) (1996); State of Georgia v. Moseley, 263 Ga. 680, 681-682(2) ( 436 S.E.2d 632) (1993); Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 541-542(2) ( 436 S.E.2d 635) (1993); Bagley v. Shortt, 261 Ga. 762, 763(4) ( 410 S.E.2d 738) (1991). We must consider "regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case": that Kent is in the final years of his long law practice, since 1958, so that there are limited years over which deterrence would apply; that such conduct would not come within any applicable errors or omissions policy because it was intentional misconduct; and that the total other damages of $18,407.
Dobbins v. Dobbins, 234 Ga. 347 (1) ( 216 S.E.2d 102) (1975).State of Ga. v. Moseley, 263 Ga. 680, 682 (3) ( 436 S.E.2d 632) (1993); Nelms v. Georgian Manor Condominium Assn., 253 Ga. 410, 413 (3) ( 321 S.E.2d 330) (1984).Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 316 (1) ( 489 S.E.2d 310) (1997) quoting Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 ( 302 S.E.2d 701) (1983).