By: Leanna C. Minix
I. Punitive Damages
While a plaintiff will frequently receive compensatory damages from a negligent defendant who was driving under the influence of alcohol, a plaintiff may recover additional punitive damages when the defendant showed “a conscious disregard of the rights of others.” Booth v. Robertson, 263 Va. 269, 273, 374 S.E.2d 1, 3 (1988). Courts might order a defendant to pay compensatory damages to the plaintiff for property damages, medical costs, or pain and suffering, which may be sufficient to resolve the plaintiff’s injuries from most instances of negligence. When the defendant was driving under the influence of alcohol, however, punitive damages may be appropriate “to provide protection of the public, as a punishment to [the] defendant, and as a 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) (citation and quotation marks omitted). A plaintiff can recover punitive damages against an intoxicated driver in a personal injury action under either the common law doctrine or pursuant to Va. Code § 8.01-44.5. The statute clearly requires the defendant to have a B.A.C. of at least 0.15%, but the courts must interpret the common law doctrine for each individual case.
The traditional standard for punitive damages in Virginia is that “negligence which is so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct, will support an award of punitive damages in a personal injury case.” Booth, 236 Va. at 273, 374 S.E.2d at 3. This is not a bright-line rule and 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.” Coalson v. Canchola, 287 Va. 242, 249, 754 S.E.2d 525, 528 (2014) (citation omitted). The trial court must submit the issue of punitive damages to the jury, unless the judge strikes the claim because reasonable minds could not come to different conclusions about whether the defendant’s conduct showed a “conscious disregard for the rights of others.” Huffman, 245 Va. at 315, 427 S.E.2d at 360.
While intoxication alone is insufficient to subject a defendant driver to a claim for punitive damages, intoxication “may serve to elevate the defendant’s conduct to the level of negligence so gross, wanton, and culpable as to show reckless disregard of human life.” Booth, 236 Va. at 273, 374 S.E.2d at 3 (citation and quotation marks omitted). The Supreme Court of Virginia noted that “[i]n determining the degree of a defendant’s negligence, intoxication is relevant as an aggravating factor, increasing with the level of intoxication.” Huffman, 245 Va. at 315, 427 S.E.2d at 360–61 (citation omitted). Since the 1990s, the Supreme Court of Virginia has consistently considered several facts for affirming the award of punitive damages, including the defendant’s B.A.C. at the time of the accident, the defendant’s prior convictions for drinking and driving offenses, and any events that occurred just prior to the accident that should have indicated to the driver that he or she was too intoxicated to safely operate a vehicle.
II. Common Law Theory of Recovery
The following cases address the issue on appeal to the Supreme Court of Virginia of whether the plaintiff presented sufficient evidence for the court to submit a claim of punitive damages to the jury. These are some of the leading cases on this issue, but there are several additional leading cases not discussed here. See, e.g., Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180 (2003); Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003); Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263 (2003); Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960).
1. Booth v. Robertson, 236 Va. 269, 374 S.E.2d 1 (1988): In Booth, the defendant drove the wrong way down an exit ramp on Interstate 81 in Roanoke County. Id. at 270, 374 S.E.2d at 1. The defendant narrowly missed a tractor trailer, which honked its horn with a “constant blast” and flashed its lights, but the defendant kept driving and hit the plaintiff head-on once on the interstate. Id. The defendant’s B.A.C. was 0.22% and he pleaded guilty to driving under the influence. Id. at 271, 374 S.E.2d at 1. The trial court struck the plaintiff’s claim for punitive damages and the Supreme Court of Virginia reversed. Id. at 270, 273, 374 S.E.2d at 1, 3. The Court stated that the “objective fact that the defendant in this case voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provides sufficient proof of his conscious disregard of the rights of others.” Id. at 273, 374 S.E.2d at 3. The Court focused on the defendant’s B.A.C. and voluntary intoxication in explaining its ruling that the evidence supported an award of punitive damages for the defendant’s “egregious” behavior. Id. Later cases frequently reference Booth as the quintessential case in which punitive damages were appropriate because the defendant’s behavior embodied egregiousness.
2. Hack v. Nester, 241 Va. 299, 404 S.E.2d 42 (1991): In Hack, the defendant was driving with a B.A.C. between 0.09 and 0.114%. Id. at 506–07, 404 S.E.2d at 45. The evidence showed that the defendant had two prior DUI convictions; he drank at least half a pitcher of beer before the accident; his license was suspended; and he operated the vehicle on the left side of road, with the left headlight out and while he was suffering from night blindness. Id. at 502, 506, 404 S.E.2d at 43, 45. The defendant hit the decedent in the left lane and her administrator brought a wrongful death action against the driver for negligence. Id. at 502, 404 S.E.2d at 43. The jury awarded $50,000 punitive damages to the plaintiff. Id. at 503, 404 S.E.2d at 43. On appeal, the Supreme Court of Virginia compared these facts to those in Booth and explained that none of the circumstances from Booth were present here. Id. at 506–07, 404 S.E.2d at 45. The Court stated it could not conclude the defendant met the level of conscious disregard of the decedent’s rights to carry the award of punitive damages and it reversed this part of the judgment. Id.
3. Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340 (1993): In Puent, the defendant had a B.A.C. of 0.24% when he failed to brake and rear-ended the plaintiff’s vehicle at a traffic light. Id. at 218–19, 427 S.E.2d at 341–42. The defendant admitted liability for compensatory damages and pleaded guilty to a charge of reckless driving. Id. The evidence showed the defendant was “going very fast” and that he continued to drink whiskey from the bottle in his vehicle after the accident. Id. at 219, 427 S.E.d2d at 342. The trial court struck the plaintiff’s claim for punitive damages and the Supreme Court of Virginia affirmed. Id. at 218, 220, S.E.2d at 341, 343. Although the defendant’s B.A.C. was lower in the case of Booth, the Court noted that “other acts of negligence that were direct causes of the collision” must be considered and that the defendant’s conduct here did not “approach that degree of negligence” in Booth, Huffman, or Hack. Id. at 219, 427 S.E.2d at 342. The Court concluded that a plea of guilty to reckless driving was insufficient alone to sustain punitive damages. Id. at 220, 427 S.E.2d at 343. Even though it called the defendant’s conduct “reprehensible,” the Supreme Court of Virginia did not reverse the trial court’s decision. Id at 220, 427 S.E.2d at 342.
4. Huffman v. Love, 245 Va. 311, 427 S.E.2d 357 (1993): In Huffman, the defendant was driving with a B.A.C. of 0.32% and speeding (25 mph in a 15-mph zone) when he crossed into oncoming traffic and struck the plaintiff head-on. Id. at 313, 427 S.E.2d at 359. Prior to hitting the plaintiff, the defendant had collided with another vehicle and continued to drive. Id. The defendant did not stop at the time of the accident, and he could not talk, stand, or walk when police pulled him over three miles later. Id. The defendant had two prior convictions for DUI and had completed VASAP. Id. The trial court struck the plaintiff’s claim for punitive damages. Id. The Supreme Court of Virginia reversed the trial court’s ruling, finding that there was sufficient evidence of the defendant’s “conscious disregard for the safety of others” for the issue of punitive damages to be submitted to a jury. Id. at 314–15, 427 S.E.2d at 360. The Court focused on three facts: the defendant had a prior collision shortly before the collision with the plaintiff, the defendant was speeding at the time of the collision, and the defendant’s B.A.C. was over three times the statutory limit. Id. at 315, 427 S.E.2d at 360. The Court stated that “[i]n determining the degree of a defendant’s negligence, intoxication is relevant as an aggravating factor, increasing with the level of intoxication.” Id. at 315, 427 S.E.2d at 360–61 (citation omitted). The Court’s analysis in Huffman is instructive because it expressly points to three facts that the Court considered in reaching its determination.
5. Webb v. Rivers, 256 Va. 460, 507 S.E.2d 360 (1998): In Webb, the trial court struck the plaintiff’s common law claim and the Supreme Court of Virginia reversed. Id. at 462, 464, 507 S.E.2d at 362, 363. The defendant was traveling 90 mph in a 25-mph residential area with a B.A.C. of 0.21% and ran a stop light, after which he collided with the plaintiff. Id. at 462, 507 S.E.2d at 361. The officer who responded testified that the defendant was drunk to the extent that he “was in a stupor” and was unaware of the time or where he was. Id. In reversing the trial court’s decision, the Supreme Court of Virginia ruled that the plaintiff “established sufficient facts from which a jury may infer that the defendant’s acts of recklessness or negligence evinced a conscious disregard of the rights of others.” Id. at 463, 507 S.E.2d at 362. These facts are comparable to those in Huffman, including the high B.A.C. level, speeding, and a traffic violation that should have alerted the defendant to his inability to safely drive his vehicle.
6. Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014): This appeal addressed whether the remittur (reduction) of the punitive damages award was proper, but the opinion is instructive for the Court’s treatment of punitive damages. In Coalson, the defendant began drinking at brunch and continued to drink through the afternoon. Id. at 248, 754 S.E.2d at 527. Notably, the defendant engaged in deceptive and misleading behavior to ensure that a police officer did not know that the defendant was driving under the influence. Id. The defendant was driving and talking on his cellphone when he approached the left turn into his hotel and turned in front of the plaintiff’s vehicle. Id. The defendant’s B.A.C. was almost twice the legal limit at the time of the accident. Id. at 247–48, 754 S.E.2d at 527. After he hit the plaintiff’s vehicle, the defendant fled the scene. Id. at 248, 754 S.E.2d at 527–28. The defendant was previously convicted of DUI seven times and one time of driving on a suspended license. Id. at 247, 754 S.E.2d at 527. A jury awarded each plaintiff $100,000 in punitive damages. Id. at 246, 754 S.E.2d at 526.
In reversing the trial court’s decision to reduce the punitive damages, the Supreme Court of Virginia recalled the purpose of punitive damages to warn and deter. Id. at 249, 754 S.E.2d at 528. The Court pointed to the defendant’s seven prior convictions for DUI and his deceptive conduct with the police officer, as well as his fleeing the scene and asking his girlfriend to lie about his involvement, as important factors in the defendant’s “egregious” behavior. Id. at 249, 754 S.E.2d at 529. The Court noted that this is the kind of conduct punitive damages are supposed to deter because the defendant’s conduct evinced a willful and wanton disregard of the rights of others. Id. at 250–51, 754 S.E.2d at 529–30. The Court concluded that the trial court erred in granting the remittur because the $100,000 award to each plaintiff was not excessive. Id.
III. Va. Code § 8.01-44.5
Va. Code § 8.01-44.5 allows punitive damages for individuals injured by intoxicated drivers when three conditions are met. Before listing the conditions, the statute states that “[a] defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves . . . .” Va. Code Ann. § 8.01-44.5 (2017). The statute thus incorporates the common law standard and gives three requirements that indicate the standard is statutorily satisfied. First, the defendant had a B.A.C. of at least 0.15% when the incident occurred. Id. Second, “at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle . . . would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired[.]” Id. And finally, the “defendant’s intoxication was a proximate cause of injury or death to the plaintiff.” Id.
Regarding the first requirement, the statute contains a rebuttable presumption that “the blood alcohol concentration at the time of the incident causing injury or death was at least as high as the test result as shown in a certificate issued pursuant to § 18.2-268.9” for driving under the influence of alcohol. Id. The statute also includes the types of certificates obtained under Virginia law that may be submitted as proof of the defendant’s B.A.C., but it does not limit the type of evidence that may be submitted. Id.; see also Woods, 265 Va. at 75, 574 S.E.2d at 267 (ruling that that § 8.01-44.5 did “not establish any evidentiary presumption regarding the results of a chemical analysis conducted on a sample of a driver’s blood or breath taken after his arrest . . . for driving under the influence of alcohol”). For the second requirement, there is a rebuttable presumption that “the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.” Va. Code Ann. § 8.01-44.5 (2017). In 2016, the General Assembly added a clause that allows “[e]vidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle” to be admissible in front of a jury deciding punitive damages. Id. This amendment was likely in response to the Court’s ruling in Cain v. Lee, 290 Va. 129, 772 S.E.2d 894 (2015), and allows the jury to hear evidence about drinking and driving conduct that occurred after the incident at issue in the case.
The Supreme Court of Virginia has seldom ruled on the statute directly. This trend is likely because the Court stated in Woods that “the language of Code § 8.01-44.5 is plain and unambiguous. This language permits a plaintiff who institutes a personal injury action arising from the operation of a motor vehicle to request punitive damages when the evidence establishes that the defendant acted with malice or with willful or wanton negligence. A person’s conduct may be deemed willful or wanton when certain statutory requirements are met.” 265 Va. at 75, 574 S.E.2d at 267. Interpreting the statute, therefore, has infrequently come up on appeal. Furthermore, the Court stated in Cain that “[u]nlike common law punitive damages, statutory punitive damages have been explicitly approved by the General Assembly. As such, we cannot say, as a matter of law, that such punitive damages are ‘generally not favored.’ Indeed, logic would dictate otherwise.” 290 Va. at 135, 772 S.E.2d at 897.
A plaintiff may be able to supplement his or her compensatory damages with punitive damages in a personal injury suit against a defendant who was driving under the influence of alcohol. In such a case, Virginia common law and Va. Code § 8.01-44.5 provide for punitive damages when the defendant’s conduct showed a conscious disregard for the rights of others. The Supreme Court of Virginia has considered three facts (the defendant’s B.A.C. level, prior DUI convictions, and incidents that showed the driver was too intoxicated to safely operate a vehicle) as indicators for punitive damages. The statute applies when the defendant’s B.A.C. was 0.15% or higher. Both common law and the statute encompass the purpose of punitive damages, which is to warn and deter individuals from driving under the influence of alcohol.