Damages

Compensatory Damages

Compensatory damages are designed to pay the injured party for his losses and make him whole to the extent money can do so. These damages may include property damage, medical bills, loss of earnings, bodily injury along with inconvenience, physical pain and mental suffering. The value of your claim will depend upon the seriousness of injury, the length of treatment, the past medical expenses, the past wage loss and any future injury, wage loss, loss or earning capacity or medical expenses.

The claim for compensatory damages are summarized in Virginia Model Jury Instruction 9.000.

General Personal Injury and Property Damage

If you find your verdict for the plaintiff, then in determining the damages to which he is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant:

(1) any bodily injuries he sustained and their effect on his health according to their degree and probable duration;

(2) any physical pain [and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future];

(3) any disfigurement or deformity and any associated humiliation or embarrassment;

(4) any inconvenience caused in the past [and any that probably will be caused in the future];

(5) any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];

(6) any earnings he lost because he was unable to work at his calling;

(7) any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future;

(8) any property damage he sustained. Your verdict shall be for such sum as will fully and fairly compensate the plaintiff for the damages sustained as a result of the defendant's negligence.

Note that the model jury instruction makes provisions for past and future losses, including wages and medical bills.

Punitive Damages

Compensatory damages are to be contrasted with punitive damages. While not a topic of this seminar, a brief discussion of punitive damages is necessary to understand how such damages differ from compensatory damages. Punitive damages are awarded to punish the wrongdoer for egregious conduct (intentional or "willful or wanton") and to deter others from such conduct. Virginia Code § 8.01-38.1 provides that the jury shall determine the amount of the punitive award, but the cap on any punitive damage recovery is $350,000.00. Nor are punitive damages to be awarded when the defendant is deceased, as there is no purpose to be served under such circumstances.

Punitive damages are most frequently encountered by the personal injury practitioner in drunk driving cases. Virginia Code § 8.01-44.5 authorizes a punitive damages claim if the greater weight of the evidence establishes that the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others. The defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard to the rights or others, and punitive damages may be awarded, when the evidence proves that (i) the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume when the incident causing the injury occurred, (ii) at the time he was drinking alcohol, he knew that he was going to operate a motor vehicle, and (iii) the defendant's intoxication was a proximate cause of the injury to the plaintiff.

A uninsured or underinsured motorist carrier defending a drunk driving claim cannot tell the jury that it (and not the drunk driver) will pay any award of punitive damages in an effort to reduce or eliminate such an award. Allstate v Wade, 265 Va 383 (2003) (punitive damage awards not only punish the wrongdoer, but also serve to protect the public and provide an example and warning to deter other from engaging in similar conduct).

The jury must state separately in its verdict the amount awarded as compensatory damages and amount awarded as punitive damages.

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