3 Hot Legislative Bills to Watch: Punitive Damages May Double!

Written by Kate Adams, Esq.

Edited by William J. Pfund, Esq.

There are three important Bills before the Virginia Senate and House of Delegates that could have a substantial impact on the damages claims that plaintiffs allowed to pursue in Virginia, and the amount of punitive damages plaintiffs are able to recover.

The first Bill to watch is House Bill 323 which proposes to create a new category of claims in Virginia for loss of consortium. Virginia has long refused to recognize a cause of action for loss of consortium. House Bill 323 seeks to change this long held principle and create a cause of action for loss of consortium for the injury of a spouse, parent or minor child. The Bill would create a new Code Section, 8.01-38.2, and would allow the spouse of a person who suffers personal injury, the parent of a minor child who suffers personal injury, and the adult child of a person who suffers personal injury to recover damages for loss of consortium. Damages would include loss of services, loss of society and companionship, and lost wages of the person who has to care for the injured person or the minor children of the injured person. Under the proposed Bill, a spouse could recover damages for the loss of sexual relations with the injured person. The bill provides that such a cause of action may be brought independently or together with the injured party’s cause of action.

If this Bill passes, the number of claims could dramatically increase and what were relatively minor claims could become more expensive to resolve. A simple car accident involving an injured stay at home spouse could now turn into a claim giving rise to multiple causes of action. Presently only one cause of action by the injured spouse is allowed. However, if this Bill passes another independent cause of action by the husband or wife of the injured spouse could be brought. The husband or wife would be permitted to make a claim for lost wages resulting from them having to stay home from work and care for the minor children, for loss of services his or her spouse typically performed, and for loss of companionship and loss of sexual relations.

The second Bill to take notice of is Senate Bill 895 which proposes to increase the present cap on punitive damages. Since 1987 the cap on punitive damages in Virginia has remained the same at $350,000. Senate Bill 895 proposes to increase the punitive damages cap from $350,000 to $500,000 for causes of action that accrue after July 1, 2018. Given that this Code section has not been revised since 1987 it is likely that even if this Bill does not pass this year, we will see another proposal to increase the punitive damages cap in the coming years.

The third Bill of importance is House Bill 209 which would make it easier for guests and tenants to recover from property owners and landlords for the foreseeable criminal actions of third parties. Currently “a person does not have a duty to protect another from the criminal acts of a third person.” Commonwealth v. Peterson, 286 Va. 349, 356 (2013). Virginia courts have held that in order to find a duty to protect tenants, occupants or guests from third party criminal acts “a special relationship must exist between the defendant and the third person which imposes a duty upon the defendant to control the third person’s conduct, or between the defendant and the plaintiff which gives a right to protect the plaintiff.” Brown v. Jacobs, 289 Va. 209, 215 (2015) quoting Burns v. Gagnon, 283 Va. 657, 668-69 (2012).

House Bill 209 would eliminate the need for the court to find a “special relationship” in cases involving persons who own, operate or manage “a commercial property used primarily for business purposes, or residential real property that is owned by a person who owns five or more dwelling units.” HB 209. The Bill would create a duty for those persons to take reasonable precautions to protect the tenants or other authorized occupants, such as guests or invitees of such property against injury caused by the criminal conduct of a third party. In order for this category of persons to be held liable, the criminal conduct has to be conduct that is known to such owner, operator or manager or is reasonably foreseeable.

This Bill would substantially broaden the category of persons who could bring a cause of action for being harmed by the criminal acts of third parties. The Supreme Court of Virginia has held that the “special relationships” presently required to be found before liability can be imposed are narrowly defined. If this Bill passes, however, it would expand the number of persons who could assert this as a cause of action.

All three of these Bills will be watched closely, as they are likely to have an impact on the type of claims and the amount of damages we might see in the near future.



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