Written by Danny Royce, Esq.
Edited by Janeen Koch, Esq.
Virginia law allows for compensatory and punitive damages against drunk drivers in motor vehicle accident cases. In order to recover punitive damages, the conduct of the defendant must be willful and wanton. There are two types of punitive damages that can be awarded in these cases – statutory and common law. This article will focus on statutory punitives and a recent amendment to the Virginia Code allowing for evidence of defendant’s post-accident conduct in affixing the amount of punitive damages to be awarded.
As a preliminary matter, Virginia Code Sec. 8.01-44.5 permits awards of punitive damages for persons injured by intoxicated drivers. The statute states in pertinent part, “[i]n any action for personal injury or death arising from the operation of a motor vehicle…the finder of fact may, in its discretion, award punitive 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.” The statute goes on to set forth conditions, which proven at trial, are sufficient to constitute willful and wanton conduct.
Pursuant to the statute, a defendant’s conduct “shall” be deemed “sufficiently willful or wanton as to show a conscious disregard for the rights of others” under the following circumstances: a) 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; b) at the time the defendant began drinking alcohol (or during the time defendant was drinking alcohol) defendant knew or should have know that his/her ability to operate a motor vehicle would be impaired or the defendant knew his/her ability was impaired while operating a motor vehicle; and c) the defendant’s intoxication was a proximate cause of the injury or death to the plaintiff.
Significantly, for the purposes of this statute there is a rebuttable presumption that the defendant’s blood alcohol concentration at the time of the accident was at least as high as the test result shown in a certificate issued pursuant to Sec. 18.2-268.9 or in a certificate of analysis for a blood test administered pursuant to Sec. 18.2-268.7 (provided the test was administered in accordance with the pertinent statutory provisions related to same). Further, a certificate issued pursuant to Sec. 18.2-268.9 or a blood test certificate of analysis pursuant to Sec. 18.2-268.7 constitutes prima facie evidence of the facts contained in such documents.
Historically, clever defendants were able to evade statutory punitive damages when the defendant refused to consent to testing of their blood to determine their blood alcohol content. The General Assembly addressed this loophole with a 1998 amendment which provides that when a defendant “unreasonably refuses” to submit to a blood alcohol test, such conduct shall be deemed sufficiently willful or wanton to support punitive damages when the evidence proves: a) that the defendant was intoxicated; b) at the time defendant began drinking (or during the time defendant was drinking) he/she knew or should have known that the ability to operate a vehicle was impaired; and c) defendant’s intoxication was a proximate cause of plaintiff’s injury or death.
Beginning July 1, 2016, there is a new wrinkle to this code section that is especially pertinent to our practice and to KPM’s clients. The General Assembly has added a new section which states the following: “[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….shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.” In other words, while the jury cannot consider such conduct in order to determine whether a defendant is liable for punitive damages, they can now consider such conduct in determining the amount of punitive damages to be awarded.
The impetus of this amendment was a response to the Virginia Supreme Court case of Cain v. Lee, 77 S.E.2d 894 (2015). In Cain, the defendant drunk driver caused a motor vehicle accident that injured three plaintiffs. The plaintiffs sued for statutory and punitive damages. While their lawsuits were pending, the defendant committed a second DUI where the defendant had a BAC of 0.35. The defendant was sentenced to jail time, probation and was required to participate in the Virginia Alcohol Safety Action Program (VASAP). During the pendency of the litigation, the defendant failed breathalyzer tests required by VASAP compliance and was expelled from the program. In the trial court, the defendant filed a motion in limine to exclude evidence of defendant’s post-accident conduct including the second DUI and VASAP violations. The trial court granted the motion in limine and excluded all of defendant’s post accident conduct. As a result, the jury only imposed a punitive damage award of $500.
The plaintiffs appealed the punitive damages award to the Supreme Court of Virginia. The Supreme Court reversed the judgment and awarded new trials on the basis of an improper instruction of law, but upheld the trial Court’s ruling that defendant’s subsequent conduct was inadmissible. The Court’s decision was based on the grounds that such evidence was not relevant to determine whether a drunk driver should be liable for statutory punitive damages under Code Sec. 8.01-44.5. The Court noted that while such evidence may be relevant to determine the amount of punitive damages necessary to deter such conduct in the future, it was nonetheless excluded on the grounds that this evidence was unduly prejudicial and the prejudice to defendant outweighed its probative value. By enacting the amendment to Code Sec. 8.01-44.5, the General Assembly effectively legislatively overruled the Court’s holding in Cain.
This amendment has significant implications with regard to defending DUI punitive damages cases, particularly those that may proceed to trial. As always, with every pertinent change in the law, the attorneys of KPM are ready to adapt to the changing legal landscape and are well positioned to continue effectively defending such cases. However, it is important to note that in the future, in cases where our insureds have post-accident alcohol related convictions or incidences of impaired driving, this will likely now become admissible as evidence, albeit with a limited scope. Please don’t hesitate to contact us with questions or for more information on this topic.