Can You Seek Punitive Damages in Your Personal Injury Case?

If you have been injured by a drunk driver, you may be eligible to receive punitive damages, in addition to compensatory damages for medical expenses, lost wages, pain and suffering, etc. Punitive damages are designed to punish the wrongdoer and deter similar future conduct, whereas compensatory damages are strictly intended to compensate the victim for their losses.

In Virginia, punitive damages are recoverable if the at-fault driver acted “with malice toward the” victim or their “conduct was so willful and wanton as to show a conscious disregard for the rights of others.” See, e.g., Va. Code 8.01-44.5. The law distinguishes between statutory punitive damages and common law punitive damages. In either instance, punitive damages are capped at $350,000 under Va. Code § 8.01-38.1.

Statutory Punitive Damages

Under Va. Code 8.01-44.5, punitive damages will almost undoubtedly be awardable if the driver’s blood alcohol concentration (BAC) at the time of the collision was .15 or more.  More specifically, the statute provides that a drunk driver’s conduct “shall be deemed sufficiently willful or wanton” if the evidence proves (i) their blood alcohol concentration (BAC) was .15 or higher at the time of the collision, (ii) they knew or should have known that their ability to operate a vehicle was impaired, and (iii) their intoxication proximately caused the victim’s injury.  The statute also provides that if the driver refused to submit to BAC testing, their conduct will nonetheless still be deemed sufficiently willful or wanton if they were in fact intoxicated at the time of the collision and elements (ii) and (iii) above are met.  

Common Law Punitive Damages

If the drunk driver did submit to BAC testing, and it returned a result of less than .15, the accident victim may still be eligible for common law punitive damages. Per the Supreme Court of Virginia, “intoxication, of itself, will not subject a negligent driver to an award of punitive damages. Rather, the defendant’s entire conduct must be considered in determining whether it showed a conscious disregard for the safety of others." Huffman v. Love, 245 Va. 311, 314-15 (1993).  In some instances, Virginia Courts have shown a reluctance to make common law punitive damage awards except in the most egregious of cases.  See, e.g., Vest v. Paxton, No. 95-0749-R, 1996 U.S. Dist. LEXIS 8199 (W.D. Va. Mar. 8, 1996) (dismissing punitive damages claim despite a BAC level of .20-.23%; Puent v. Dickens, 245 Va. 217 (1993) (ruling against punitive damages despite BAC level of .24%).

However, the Supreme Court of Virginia has also held that a professional driver (e.g., a tractor trailer driver) may be liable for willful and wanton conduct if he “had received specialized safety training warning against the very omissions he made prior to the accident.” Alfonso v. Robinson, 257 Va. 540, 546 (1999). This was applied to a tractor trailer driver’s training “on the effects of consuming alcohol before driving” in Laporsek v. Burress, Civil Action No. 7:18-cv-527, 2019 U.S. Dist. LEXIS 212193, at *17 (W.D. Va. Dec. 10, 2019). There, the court reasoned that “truck drivers are held to a higher standard because they are covered by federal regulations and often receive additional safety training.”

In summary, if the at-fault driver had a BAC level of .15 or higher, or refused to submit to BAC testing, it is very likely the victim will be eligible for statutory punitive damages. If the at-fault driver’s BAC level was less than .15, punitive damages may be difficult to recover unless the driver’s conduct was egregious or reprehensible in other respects or they were a professional driver who had received training on the effects of drinking and driving.

Calculating Punitive Damages

Assuming the victim is eligible to receive punitive damages, the court must decide the amount of the award.  “Like compensatory damages, there is no fixed standard for the measurement of punitive damages in Virginia and such determination is left to the discretion of the jury.” Showker v. Kratzer, 77 Va. Cir. 389, 392 (Cir. Ct. 2009). However, the Supreme Court of Virginia “has repeatedly instructed circuit courts to consider” the following factors when assessing punitive damage awards:

• The reasonableness of the damages sustained vis-à-vis the amount of the punitive damages award.

• The measure of punishment required: Virginia courts are permitted to assess the amount that may be necessary to deter similar behavior in the future. In doing so, they may assess to what extent the defendant previously showed remorse.

• Whether the award will amount to a double recovery.

• The ratio between compensatory and punitive damages: The Supreme Court of Virginia has upheld a punitive damages award that was 2.5 times the compensatory award. Poulston v. Rock, 251 Va. 254 (1996).

• The ability of the defendant to pay: “[P]unitive damages should be sufficient to punish and deter a defendant but should not be so high as to destroy him financially.” They “must be tailored with the net worth and unique financial status of each defendant in mind to best achieve the desired pecuniary effect.” Showker, 77 Va. Cir. at 393 (citing Poulston at 264). Coalson v. Canchola, 287 Va. 242, 254 (2014).

In our experience at Bosson Legal Group, a client’s ability to claim punitive damages—especially when the at-fault driver had a BAC level of .15 or higher—increases the value of their claim significantly. For this reason, we make every effort to obtain as much information as possible about the at-fault driver’s level of intoxication and other details surrounding the accident in drunk driving cases.  

Please contact us about your personal injury claim, irrespective of whether it involved a drunk driver. We would be happy to help!