In Virginia, if the driver of the vehicle who caused the accident had been drinking the injured party may be entitled to punitive damages in a personal injury case. Punitive damages are given to “punish” the Defendant and deter others from acting the same way. Unlike most jurisdictions, Virginia also grants punitive damages as compensation for the Plaintiff.
In a possible drunk driving case, the best way to prove punitive damages is to find out the drivers Blood Alcohol Concentration (BAC). The quickest way for a Plaintiff to find out what the drivers BAC was at the time of the accident is by contacting the police investigator handling the accident or the prosecutor handling any criminal charges. Once the Plaintiff or their attorney knows the drivers BAC they can see if the following statute can be applied:
Virginia Code Section 8.01-44.5
Specifically states an award of punitive damages is available if the defendant had been drinking and the plaintiff can show that:
1. Defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume, or 0.15 grams or more per 210 liters of breath;
2. When the defendant began drinking alcohol, or while he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle would be impaired;
3. The defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff.
Willful and Wanton Negligence
Even if a driver’s blood-alcohol content does not meet the above standard, punitive damages could be awarded under the other principles of Section 8.01-44.5 which states in part “if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” Willful or wanton conduct implies knowledge and consciousness that injury will result. The Virginia Supreme Court has defined willful and wanton negligence as “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” One example of this conduct would be someone knowingly injuring a person and then fleeing the scene of the accident.
Punitive Damages Must be Specifically Plead in the Complaint
In Virginia, a Plaintiff must specifically ask for punitive damages as well as plead specific allegations associated with punitive damages. This includes stating facts that allege the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others or that they fall under Virginia Code Section 8.01-44.5. Failure to plead punitive damages properly in the complaint could result in the barring of a punitive damage claim at trial.
Punitive Damage Compensation
Virginia courts have repeatedly pointed to two of these policies in justifying the award of punitive damages. The two policies are A. Punishment of the Defendant and B. Compensation to the Plaintiff.
A. Punishment of the Defendant
The function of punitive damages is to impose on a wrongdoer for the protection of the public, as a punishment to defendant, and as a warning and example to deter him and others from committing like offenses. When awarding punitive damages, courts have reasoned that punishing the defendant for malicious conduct provides an example of the consequences others may expect if they engage in similar conduct.
B. Compensation to the Plaintiff
Unlike most jurisdictions, Virginia recognizes a secondary purpose for punitive damages. Virginia courts have stated that compensation for the loss sustained by the plaintiff may also be considered in awarding punitive damages.
Punitive Damages Compared to Compensatory Damages
In deciding whether a reasonable ratio exists between the compensatory damages and the punitive damages awarded, courts consider if the award is excessive and if its size shocks the conscience and creates the impression that the jury was biased or misconceived or misunderstood the facts or the law.
The courts in Virginia have refused to set a specific maximum ratio between compensatory and punitive damages. However, the case law so far has settled the matter to be somewhere between 10 to 1 ratio and 200 to 1 ratio for maximum punitive damage award.
Virginia Cap on Punitive Damages
In Virginia, there is a statutory cap limit to the amount that may be recovered as punitive damages, which is $350,000.00. This is not per Plaintiff but total punitive damages that can be received from the action as a whole.
Punitive Damages are Taxable
The Internal Revenue Service has ruled that punitive damages are taxable, and any settlement agreement or jury award must be allocated between the nontaxable compensatory damages portion and the taxable punitive damages portion.
When pursuing a claim for punitive damages it is important to have an attorney who is skilled in that area of law and will know how to properly investigate, plead, respond to defense motions and argue punitive damages at trial. Having the right attorney to represent you will ensure that you receive maximum compensation for your injury.