Written by Brian Clarry, Esq.
Edited by Bill Pfund, Esq.
In Virginia, an injured person can recover up to $350,000 in punitive damages if the defendant acted with “willful and wanton negligence.” Whereas compensatory damages (which are not capped) are meant to make the injured person whole, punitives seek to punish the wrongdoer and deter others from similar conduct. Doe v. Isaacs, 265 Va. 531, 536 (2003).[1] It can be difficult, however, to determine whether the defendant’s conduct rises to the level of willful and wanton negligence; there is no bright-line rule, and the court will make a determination based on each case’s unique facts. Alfonso v. Robinson, 257 Va. 540, 545 (1999).
There are three types of negligence: 1) Simple Negligence, 2) Gross Negligence and 3) Willful and Wanton Negligence. Simple negligence is easy to understand and spot: think fault. Gross negligence is essentially “shocking fault.” The third level of negligent conduct is “willful and wanton negligence.” This conduct is defined as “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 919.[2]
A helpful way to repackage this standard is to ask whether the individual acted in a way that showed that the defendant did not care at all if someone else was about to be seriously injured by the actions he was taking. If the defendant had such utter disregard for the safety of others, then assess if there are aggravating factors, such as ill-will, intoxication, or other criminal behavior. If a reasonable person would look at the defendant’s actions, taken as a whole, and determine that they were egregious (i.e., outrageous or disgraceful), then there is a plausible claim for punitive damages.
It is important to emphasize that this standard includes intentional conduct, but does not require it. That is, intentionally egregious conduct will trigger punitive damages, whereas recklessly egregious conduct may trigger punitive damages. This dichotomy between “intentional” and something almost-but-not-quite “intentional” is important when considering whether the damages will be covered by insurance.
Policies nearly always exclude coverage for intentional acts. Yet many do not exclude coverage for punitive (or “exemplary”) damages. And in Virginia, courts are inclined to find coverage unless punitives are expressly excluded. See, e.g., United Services v. Webb, 235 Va. 655 (1988). The specific language of the policy is therefore the first line of inquiry. If punitive damages are not expressly excluded, assume insurance will cover an award of punitive damages.
After determining that the facts of a given case could support a punitive damages claim, the next question is how to properly plead the claim. Whereas simple negligence can be pled generally, willful and wanton negligence must be pled with factual support that the defendant’s conduct was at least recklessly indifferent and amounted to egregious conduct. Woods v. Mendez, 265 Va. 68, 76-77 (2003). Simply including legal jargon in a complaint rather than specific factual allegations describing egregious conduct can easily result in the complaint being struck, even at an early stage in the proceeding.
It is important to point out that while a punitive damages claim has a heightened pleading standard as compared to simple negligence, the burden of proof remains the same: the greater weight of the evidence. Smith v. Litten, 256 Va. 573 (1998) (approving jury instruction using that standard for punitive damages). This is an area where Virginia favors plaintiffs as many states require proof of punitive damages by clear and convincing evidence.
When a willful and wantonly negligent defendant was acting in the scope and course of his employer’s employment when the incident occured, punitives are recoverable against the employer if the employer expressly authorized, participated in, or subsequently ratified, the act. Hogg v. Plant, 145 Va. 175 (1926). Again, specific factual support is needed for a properly pled complaint. And even if there are facts to support the employer’s involvement, as mentioned above, the employer’s liability policy may exclude punitive damages. Presumably, however, the employer would have assets to cover the award.
Importantly, a jury deciding the amount of punitive damages to award is able to consider evidence of the defendant’s net worth. Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48 (2001). The plaintiff may, but is not required to, prove the defendant’s financial standing in order to obtain punitive damages. Smith v. Litten, 256 Va. 573 (1998). The Fourth Circuit, applying Virginia law, has suggested that the jury should be given an instruction that provides guidance on how to determine the amount of the award. The instruction recommends the jury consider the relationship to the harm caused, other penalties imposed for the conduct, and any limitation based on ability to pay. Mattison v. Dallas Carrier Corp., 947 F.2d 95 (1991).
The Intoxication Issue
Many assume that a defendant’s intoxication at the time of the incident is sufficient grounds for an award of punitive damages. However, that is not the common law in Virginia. Huffman v. Love, 427 S.E.2d 357, 360 (1993). Instead, it is only one factor to be considered in determining whether the entirety of the defendant’s conduct showed a conscious disregard for the safety of others. Id.
However, the Virginia legislature has codified an alternate standard that is available to plaintiffs. Under Va. Code § 8.01-44.5, the willful and wanton negligence standard is deemed met if 1) the defendant had a blood alcohol concentration of 0.15 percent or more at the time of the incident, 2) the defendant knew or should have known that his ability to operate a motor vehicle would be impaired by consuming alcohol, and 3) the defendant’s intoxication was a proximate cause of plaintiff’s injury. This statutory construction is an alternative to the common law framework, meaning that even if there is no evidence of a defendant’s intoxication at a BAC over 0.15, punitive damages still may be awarded under the common law standard.
An interesting development to follow in the coming months and years is how the Virginia Legislature and law enforcement will address the issue of driving under the influence of marijuana. Governor Ralph Northam recently proposed amendments to a bill passed by the General Assembly in February that would make possession of up to an ounce of marijuana legal for adults over 21 years old. Driving while intoxicated by marijuana is and will remain illegal. However, there is no currently available widespread means to test marijuana intoxication. The current tests can determine if an individual consumed THC, the intoxicating ingredient in marijuana, at some point in the near past. But these tests are currently unreliable to determine an individual’s level of intoxication at any given time in the recent past.
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[1] See also Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992) (“We have repeatedly stated that an award of punitive damages is not favored generally because punitive damages are in the nature of a penalty and should be awarded only in cases involving the most egregious conduct.”).
[2] See also Wallen v. Allen, 231 Va. 289, 297 (1986) (“The terms ‘willful and wanton conduct’ import knowledge and consciousness that injury will result from the act done.”); Harris v. Harman, 253 Va. 336, 341 (1997) (“The Virginia Supreme Court has recognized a very high factual standard to plead willful and wanton conduct. To find willful and wanton conduct, a person’s actions must be some type of egregious conduct — conduct going beyond that which shocks fair-minded people.”).