Understanding Personal Injury Punitive Damages in Virginia

The Virginia Supreme Court has dealt many times with the issue of punitive damage awards.

There are two bases for an award of punitive damages.

1. Common Law Punitive Damages

The foundation for a punitive damage award is a conscious disregard. That requires something beyond ordinary negligence. Also it requires something beyond gross negligence. A conscious disregard can be seen when a person while driving an automobile, chooses to look at their phone or to text. That is a choice that the driver makes. That choice may be a conscious disregard. When coupled with driving at a high rate of speed, it may be a basis for a punitive damage award.

• In Howell v. Kusters, 2010 W.L. 877510, the Delaware Superior Court found that where the defendant was traveling 20 mph over the limit, never applied her brakes and was talking on her cell phone at the time was sufficient to create a jury issue as to punitive damages.
• In Curtis v. Highfill, 298 Va. 499, (2020), the court held that a jury could have concluded there was willful and wanton negligence based on a doctor’s improper prescription of medication.
• In Alfonso v. Robinson, 257 Va. 540, the court allowed a punitive damage claim to go to the jury where the defendant was a professional driver.

Key Considerations in Common Law Claims

In alleging a common law claim, there are some things you need to consider:

1. You’re probably going to be met with a demurrer. Therefore your argument should be that the standard at this stage of the proceeding is fairly low. If reasonable persons could differ in their conclusions, then the decision should not be taken away from the jury.
2. If your case is not a rear-end accident case, then point that out. For instance if the defendant is driving on the wrong side of the road, that is a far cry from simply rear-ending someone. If you have a major traffic violation, then allege it. In Huffman v. Love, 245 Va. 311 (1993) and Booth v. Robertson, 236 Va. 269 (1988), punitives were allowed when the defense caused collisions driving in the wrong lane.
3. If the defendants try to argue that Booth and Huffman somehow raise a notice requirement, be prepared for that argument. They do not raise any such requirement.
4. Finally if you have significant damage to the vehicles, then attach those pictures to the Complaint. That shows that this was not a 5 mph crash.

For a deeper dive into case law, see our resource on the basis for punitive damages in Virginia.

2. Virginia Statutory Punitive Damages

Va. Code section 8.01-44.5 allows for punitive damages where there is a certificate of blood alcohol content (BAC) of 0.15% or more. Other forms of proof may be allowed to establish that. For instance if you have proof from lay witnesses as to the amount of alcohol consumed, the size and weight of the defendant and the period of consumption, then through expert testimony of a toxicologist, you may be able to prove that the BAC was over 0.15%. Also refusal may be a basis for an award of punitives.

How to Prove Punitive Damages in Personal Injury Cases

In proving punitive damages, there are many things to be aware of:

1. Emphasize Defendant’s Duty of Care

The duties owed by the defendant you are suing may be quite broad. There may be a duty imposed on everyone within the company to report an injury or events that may lead to an injury. There may be a duty to structure the company in such a way so as to avoid these types of injury. The size of the company may be such that its duty is heightened because it impacts thousands of people. The elements for punitives are either intentional conduct or willful and wanton conduct. The latter calls for an act or constructive consciousness that injury will result from the act or omission. Wilby v. Gostel, 265 Va. 437, 445 (2003), Alfonso v Robinson, 257 Va. 540,545

2. Proper Pleading

To properly plead punitive damages, you have to allege willful and wanton negligence. Willful and wanton negligence should be pled as part of the same count for either simple negligence or gross negligence. It is not a separate claim. Instead it is simply a degree of proof. Wilby v. Gostel, 265 Va. 437, 446 (2003); Doe v. Zwelling, 270 Va. 594, 599 (2005)

Likewise a claim for punitive damages is not a separate cause of action. It is simply a category of damage that flows from a certain quantum of negligence. In this case, willful and wanton. Whether the evidence is going to be sufficient to meet that quantum is going to be a question for determination during the course of the litigation. It is not a pleading issue. Pursuant to Rule 3:18(b), a mere allegation of negligence is sufficient.

Instead the General Assembly has provided clear direction that punitive damage claims may be evaluated on summary judgment as stated in Va. Code § 8.01-420. Punitive damage claims therefore have to be evaluated based upon that full factual record created by discovery.

3. Identifying Ongoing Misconduct

Is the defendant still denying fault, causation or ongoing bad behavior? If so, that should be pointed out as a factor.

4. Role of Punitive Damages as Deterrence

Punitives punish and also deter. To know what amount to award in order to deter the jury must know the extent of bad conduct and what effect it could have. The risk may be small but the breach of the standard of care persists. This latter fact may be proof of deliberate indifference.

5. Ensuring Punitive Awards Are Logical

Not only must the award make sense in regard to the other damages but it should make sense in regard to the defendant itself. The jury has a right to know how much was spent to market the product during the time in question. Did the party being sued know the dangers of the product while they were pushing the product? During this same time how much did they spend on quality control? That financial motive may make the claim.

6. Evaluating Defendant’s Wealth and Assets

The wealth of the party you are suing may not just be net worth. It may also be gross receipts, cash flow, accounts receivable or value of the parent company. All of those should be looked at.

In terms of proving the net worth or assets of the defendant, there may be several things to keep in mind:

1. It’s a bit unclear in the case law as to whether or not the plaintiff has to prove net worth. I think the better policy is to prove net worth, in particular if you have a defendant with substantial assets. If the defendant has meager assets, there may be some logic in not presenting evidence of what those assets are. As to exactly who has the burden of proof as to net worth, the 4th Circuit in Kunstler v. Britt, 914 F.2d 505 (4th Cir. 1990) addressed that issue. It analogized the burden to what exists in a Rule 11 sanctions case. Inability to pay is a type of affirmative defense. In that instance, the burden of coming forward with evidence of financial status rests with the party to be sanctioned. If the defendant fails to present evidence of financial worth, it cannot then complain that the award is excessive. Condo Services, Inc. v. First Owners Assoc., 281 Va. 561, 581 (2011); Kory v. McCluney, 59 Va. Cir., 74 (2002); Coalson v. Canchola, 287 Va. 242 (2014)
2. Also there is an argument to be made that there is a constitutional issue relating to assets. That is, if the plaintiff fails to present any evidence of assets, then the jury has no basis upon which it can “punish” the defendant because it doesn’t know what amount would constitute a punishment. In that case a lack of proof of assets may give rise to a due process argument i.e., you’ve created a potential circumstance where the jury could award punitive damages that have no relationship to the defendant’s assets.
3. The defendant has the right to present evidence as to net worth. If there is a lack of evidence of the defendant’s net worth, that does not defeat the punitive claim. Flippo v. CSC Associates, III, 262 Va. 48, 58 (2001)
4. An award of punitives must not be so great as to produce bankruptcy. Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1418 (4th Cir. 1992)
5. The only way of course to determine what the defendant’s net worth is, is through discovery. Discoverability is not dependent upon a prima facie showing of merit. Turnage v. Clarity Services, Inc., 215 Lexis 106553 (E.D.VA 2015); Kovari v. Bevard Expeditions, LLC, Lexis 230032 (W.D.VA 2019); Hirsch v. CSP Nova, LLC, 98 Va. Cir. 286, 300-301 (Loudoun 2018); Bea v. Hayes, 42 Va. Cir. 32 (1996); Devonshire Eur Au Pair, 40 Va. Cir. 149, 150 (1996); Hamilton Developing Co. v. Broadrock Club, 248 Va. 40, 44 (1994)
6. In terms of questions to ask to discover assets, a good starting point is the Schedule of Assets used in bankruptcy court. That can be found by Googling “Official Form 206A/B”.

7. Addressing Prior Criminal Punishment

Sometimes in a punitive damage case, the defense may try to argue that the defendant has already been punished criminally. Oppose that:

Insurance

If they try to argue that, then the plaintiff should seek permission to argue that the defendant’s insurance policy or the plaintiff’s UIM policy will cover the damages.

Based on the case of Allstate v. Wade, 265 Va. 383, a UM carrier for the victim cannot inject insurance into the case and thereby argue that an award of punitive damages would not serve to deter since they are paid by the carrier and not the wrongdoer.

Any issue of admissibility of UM/UIM coverage needs to be looked at from the fact that the defendant may still be exposed to subrogation and therefore has liability indirectly.

Civil vs. Criminal Proceedings

In addition, the plaintiff should argue that in a criminal case, it’s the government that was speaking through whatever verdict or deal may have been reached. This is a civil case. It is different from criminal proceedings. The cases are different. The parties are different. The issues are different. And what happened in one case has no bearing on the other.

Importance of Deterrence in Punitive Awards

The purpose of punitive damages is to both punish and deter. Therefore a low award will have no deterrent effect, regardless of why it may be low. Markowitz, 42 Va. Cir. 292, 303 (1997)

If the defendant was given a significant jail sentence, that probably is admissible and may blunt your argument about deterrence. The deterrence argument however should be made.

Punitive Damages and Proportionality in Virginia

In Coalson v. Canchola, 287 Va. 242 (2014), the jury awarded one plaintiff $5,000 in compensatory damages and the other plaintiff $14,000 in compensatory damages. The jury awarded $100,000 in punitive damages to each of these two plaintiffs. The trial court felt that the award was too high to the plaintiff that had the smaller amount of compensatory damages. Compensatory damages are those damages that are designed to make the plaintiff whole for the injury.

The trial court felt that because the compensatory damage awards were different that the punitive damage awards should be different. Furthermore they should bear some relation to the compensatory award.

Ratio of Punitive to Compensatory Damages

The ratio of punitive damages to compensatory damages in one case was approximately 17:1 and in the other case the ratio was nearly 8:1.

The Virginia Supreme Court determined that the ratio does not need to be a single digit amount. The Virginia Supreme Court further stated that a trial court may not compare verdicts under any circumstances. The case law in that regard states that in deciding whether a compensatory award is too high, the court may not compare that award with what was awarded in another case. The thinking is that each case is unique. Each case needs to be looked at on its own facts. Likewise in looking at a punitive award, there can be no comparison with other cases.

One of the judges on the Virginia Supreme Court felt that the awards were arbitrary and/or prejudicial because they did not treat the two plaintiffs the same. The majority of the Court felt otherwise. The majority felt that the jury has discretion in terms of awarding different amounts. In this case the Court felt that different ratios between the compensatory award and the punitive award may have been justified simply because the overall compensatory awards did not truly reflect the damage to that plaintiff.

Factors Courts Consider When Reviewing Punitive Damages

There are four (4) factors to be considered in reviewing a punitive damage award: the reasonableness between the damages sustained and the punishment required; whether the award constitutes a double-recovery; the proportionality between the compensatory and punitive awards; the defendant’s ability to pay Poulston v. Rock, 251 Va. 254 (1996)

Tax Implications of Punitive Damages

Punitive damages are taxable. As such to the extent that the award can be lumped into the general damages there may be some logic in trying to do that. The general award of course has to be for what is called “personal physical injury”. Otherwise that too may be taxable.

Personal Injury Punitive Damages in Federal Court

In federal courts the ratio that is typically followed is a single digit ratio.

Punitive damages may be awarded where only nominal damages are granted at the compensatory level. In the May 8, 2011 decision in Feld v. Feld, the U.S. District Court in the District of Columbia adopted the view from the Restatement Second of Torts Section 163, that an award of nominal damages is enough to support further award of punitive damages when the tort is committed for an outrageous purpose even though no significant harm resulted.

If you or a loved one has questions about punitive damages after a serious accident, speak with an experienced Virginia personal injury attorney.

Amount Sued For

There is a cap on punitive damages in Virginia of $350,000.00. Many lawyers like to request more than that in their Complaint. That’s probably not a good policy. I think your better practice is to keep your demand for damages within the cap. If the punitive claim goes to the jury then tell the jury that you’re suing for $350,000.00 and not a dime more. You want the jury focused on the compensatory award for which there may not be a cap. You don’t want the jury focused on coming back with a huge punitive award which as a matter of law is going to be reduced to $350,000.00.

Contact Brien Roche Law today for a free consultation and learn how we can protect your rights and pursue the compensation you deserve.