If you were hit by a drunk driver, you’re probably wondering whether you have a claim for punitive damages.  It’s a common belief (and frankly common sense) that if a drunk driver causes an accident, the victim should automatically be eligible for punitive damages.  Unfortunately, in Virginia, it’s surprisingly difficult for a court to award you punitive damages.

What Are Punitive Damages?

Punitive damages are awarded, not to compensate you for your injuries, but to punish the driver that hit you. Essentially, when a court awards punitive damages, it’s making a statement that drunk driving will not be tolarated.  

When are Punitive Damages awarded (Va. Code 8.01-44.5)

The most common instance when punitive damages are awarded in car accident cases is when the defendant was driving with a high Blood Alcohol Content (BAC). Punitive damages are allowed under Virginia Code Section 8.01-44.5 when:

  1. The Defendant’s BAC was (.15) or greater;
  2. At the time of drinking, he knew or should have known that he was DUI; and
  3. The Defendant’s intoxication was the proximate cause of the accident.

If you are somewhat familiar with Virginia law, you know that there’s an inference that a defendant is DUI when his BAC is (.08) or greater.  Therefore, to qualify for punitive damages under the Virginia code, to even start, the Defendant’s BAC needed to been almost TWICE the legal limit! 

However, the Virginia Code does provide authority for punitive damages when the defendant unreasonably refused to submit to testing of his BAC assuming that points 2 and 3 listed above are met.  However, if you are hit by a drunk driver, and they didn’t obtain his BAC, this is an issue your attorney should undoubtedly review. 

What if Your Case Doesn’t Qualify for Punitive Damages Under Va. Code 8.01-44.5? (Common Law Punitive Damages)

Will your case be awarded punitive damages?You may also be eligible for punitive damages under Virginia Common Law. Common-Law is essentially a collection of past court decisions, which establish “precedent” to guide contemporary courts about how to decide current cases. In other words, your attorney will look at previous cases and compare those to your case. 

There’s an extremely high bar for your case to qualify for Common Law punitive damages. To be clear, Virginia Courts have stated, “intoxication, of itself, will not subject a negligent driver to an award of punitive damages,” Baker v. Marcus, 201 Va. 905 (196).  Furthermore, the Courts have found punitive damages permissible in only the “most egregious conduct.” Simbeck, Inc. 257 Va. 377 (1996).

The Court in Booth v. Robertson, 236 Va. 269 (1988) did find enough evidence for the Plaintiff to be eligible for punitive damages because the facts of that case were truly egregious. In this case, the drunk defendant was driving on the wrong side of the highway when a truck was passing by blinked his lights and blew a “constant blast” on his air horns, but he just kept driving. Unfortunately, about four-tenths of a mile further, the defendant hit the plaintiff head-on. 

However, in equally horrific cases, the Virginia Supreme Court has refused Common Law punitive damages where a driver was drinking on the day of the collision. The driver operated his vehicle at night without a left headlamp, knew he suffered from night blindness,  and drove over into the left lane of oncoming traffic, Hack v. Nester, 241 Va. 499, 404 S.E.2d 42 (1991).

In another case, a driver tailgated the plaintiff's vehicle for some distance when both vehicles were traveling at 40-60 m.p.h. in a 30 m.p.h. Zone. The plaintiff's vehicle rounded a corner and lost control, driving off the road, Harris v. Harman, 253 Va. 336, 486 S.E.2d 99 (1997)

Speaking With an Attorney About Punitive Damages

If you have any questions about punitive damages, always ask your attorney. You may not be eligible, but it’s worth asking. Your attorney’s job is to make sure that you’re educated about the process so that you can make the best decisions about your case. There are no “bad” questions.

Brian Glass
Virginia personal injury lawyer selected to SuperLawyers Rising Stars List and the NTLA's Top 40 Under 40.