Traditionally it was possible to claim punitive or exemplary damages in Virginia only under the “common law”. The common law did not focus on the BAC (blood alcohol content) of the drunk or impaired driver. Instead, the common law required the victim to establish that the conduct of the drunk or impaired driver was “wilful and wanton.” Virginia case law created a very steep hill for the victim of drunk or impaired driving to climb where relying on common law. Wilful or wanton conduct required that the victim establish that the drunk or impaired driver acted with malice or such recklessness or negligence as evinces a conscious disregard of the rights of others. For example, a common law claim for punitive damages will be supported where a drunk driver drives the wrong way down an exit ramp, passes a tractor trailer which blasted its horn, blinked its lights and swerved out of the way in an attempt to alert the drunk driver that he was going the wrong way. The drunk driver continued the wrong way at a high rate of speed until he crashed head-on into the victim. After the collision, a blood test recorded a BAC (blood alcohol content) of .22% by weight by volume. Booth v Robertson, 236 Va. 269, 374 S.E .2d 1 (1988). However, many cases have held that simply driving drunk and causing a collision, without more egregious facts, will not support a drunk driving conviction. See: Doe v Isaacs, 265 Va. 531, 579 S.E. 2d 174 (2003).
As organizations such as Mothers Against Drunk Driving (MADD) put pressure on the legislature to do more to control drunk driving accidents, the legislature responded with the following law.
§ 8.01-44.5. Exemplary damages for persons injured by intoxicated drivers In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff 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.
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 that (i) when the incident causing the injury or death occurred, the 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; (ii) 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, engine or train 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; and (iii) the defendant's intoxication was a proximate cause of the injury to or death of the plaintiff.
This code section has made it somewhat easier for the victim to prosecute a claim for exemplary damages, also known as punitive damages. This code section represents an expression of the will of the Commonwealth of Virginia that driving under the influence of drugs or alcohol should not be tolerated. The Virginia law is designed to punish and deter the drunk or impaired driver (and others) from committing such offenses. Punitive or exemplary damages have been defined by the Virginia Court as “something in addition to full compensation, and something not given as Plaintiff’s due, but for the protection of the public, as a punishment to the defendant, and as warning and example to deter him and others from committing like offenses. Doe v Isaacs, 265 Va. 531, 579 S.E. 2d 174 (2003).
A typical lawsuit (complaint) requesting exemplary or punitive damages filed in court in Virginia will contain the following allegations where the defendant took a blood test which establishes a BAC of .15% or more.
Many claims for punitive damages which rely on establishing a BAC of .15% or greater at the time of operation of the motor vehicle will require the hiring of an expert in the field of toxicology or pharmacology. The expert will determine the rates of absorption and elimination of the alcohol. The expert will need the plaintiff’s attorney to establish the amount of alcohol consumed and the time line for such consumption, along with the height, weight and any medical conditions unique to the defendant. The amount of food consumed prior to, during and after consumption of the alcohol is also relevant. It is important to note that habitual drunks will not appear to be grossly inebriated even with very high BAC results, as their bodies become tolerant of the alcohol. The same may be true for drug addicts.
The plaintiff’s claims for punitive damages can be enhanced if the plaintiff can establish the defendant has had prior drunk driving convictions, especially if the priors come with blood alcohol readings over .15%. The same is true if the defendant previously attended an ASAP program where the dangers of drunk driving were taught and impressed upon the defendant. In some instances the defendant will have previously written a victim impact statement which recognized the dangers of drinking and driving and apologizes to the victim for the harm he/she has caused. Each of these factors can further support the allegations of willful and wanton conduct.
A practitioner may wonder if a claim for punitive damages can be presented if the drunk driver refused to take a breath or blood test, therefore leaving the record devoid of a BAC reading. As set forth below, Virginia Code 8.01-44.5 takes care of this situation.
However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, 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 that (i) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (ii) 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 was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff's decedent. A certified copy of a court's determination of unreasonable refusal pursuant to § 18.2-268.3 shall be prima facie evidence that the defendant unreasonably refused to submit to the test.
The easiest way to establish willful or wanton conduct in a case where the defendant refused to take a blood or breath test is to secure a certified copy of the court’s finding of unreasonable refusal. This means the defendant was tried in traffic court on the unreasonable refusal charge, and found guilty. Unfortunately, many times the defendant is able to convince the prosecutor to drop the unreasonable refusal charge if he pleads guilty to drunk driving. In the absence of a stipulation by the defendant that his BAC was at least .15% at the time he was driving, the drunk driving conviction alone will not provide the needed evidence of willful and wanton conduct to claim punitive damages. In my experience, the prosecutor’s willingness to drop the unreasonable refusal charge leaves the plaintiff in a precarious position with regard to establishing the elements of Va. Code 8.01-44.5. This is because the plaintiff is left without the BAC reading and is also without a conviction for unreasonable refusal. Under these circumstances, the best option is to establish the refusal was unreasonable by deposing the defendant and eliminating a medical condition or other exigent circumstance that would explain the refusal. You will have to work without the benefit of the prima facie evidence of unreasonable refusal that would have come with a conviction.
Virginia insurance policies contain language which the court has construed to cover an award of punitive damages. USAA v Webb, 235 Va. 655, 369 S.E. 2d 196 (1988).
District of Columbia
There is no statute in the District of Columbia which sets forth the elements of a punitive or exemplary damage claim. Instead, one has to rely on the common law elements of willful and wanton conduct to establish a claim for punitive damages.
This practitioner believes the victim is entitled to an award of punitive damages if it is proven with clear and convincing evidence that the defendant acted in willful disregard for the rights of the plaintiff, and if the defendant’s conduct was reckless toward the safety of the victim. Direct or circumstantial evidence will suffice to establish these elements of punitive damages. District of Columbia Model Jury Instruction 16-1. This practitioner also believes a plaintiff may be entitled to a punitive damage award against the employer of a drunk driver where the plaintiff can establish that the drunk employee is liable for punitive damages and also establishes by clear and convincing evidence that an officer, director or managing agent of the employer authorized or approved the employee’s operation of the company vehicle despite knowing he was a drunk and a danger. Crawford v. Andrew Sys., 119 F.3d 925 (11th Cir. 1997)(upholding jury verdict under Alabama law of $2,250,000 punitive damages for wrongful death based on negligent entrustment). See also, Breeding v. Massey, 378 F.2d 171 (8th Cir. 1967)(citing Arkansas law upholding jury verdict for punitive damages on negligent entrustment claim.), La Croix v. Spears Mattress Co., 2005 U.S. Dist. LEXIS 16867 (D. Ga. 2005)(citing Georgia law in permitting negligent entrustment and punitive damage claims to survive summary judgment), Came v. Micou, 2005 U.S. Dist. LEXIS 40037 (D. Pa. 2005)(citing Pennsylvania law in permitting negligent entrustment and punitive damage claims to survive summary judgment), Shook v. Rossignol Transp., Ltd., 2004 U.S. Dist. LEXIS 5622 (D. Ohio 2004)(citing Ohio law in permitting negligent entrustment and punitive damage claims to survive summary judgment), DeMatteo v. Simon, 112 N.M. 112 (N.M. Ct. App. 1991)(allowing claim of negligent entrustment to support award of punitive damages), Holben v. Midwest Emery Freight System, Inc., 525 F. Supp. 1224 (D. Pa. 1981)(claims for negligent entrustment and punitive damages survive summary judgment).
This practitioner is confident that a punitive damage claim will be viable in cases such as Estate of Doherty v Flores, where a drunk driver acted in willful disregard of the rights of the victim where it can be established that the drunk driver consumed 12 alcoholic drinks in an hour and then drove a pick-up truck through a red light at a high rate of speed. For a more detailed recitation of damages claimed in a wrongful death case in the District of Columbia where a drunk driver struck a pedestrian, see Mediation Statement in Estate of Doherty v Flores