Cannot bankrupt DUI liability under Chapter 7

To obtain punitive damages, a jury must find either intentional conduct or willful and wanton negligence.  Their primary purpose is to warn others and punish the wrongdoer 'if he has acted wantonly, oppressively, or with such malice as to evince a spirit of malice or criminal indifference to civil obligations. Willful or wanton conduct imports knowledge and consciousness that injury will result from the act done.  The definition of willful and wanton negligence is "action undertaken in conscious disregard of another's rights or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another." Doe v. Isaacs, 265 Va. 531, 535, 579 S.E.2d 174, 176 (2003)

In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary 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.

A defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, 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; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to or death of the plaintiff.

However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff's decedent. A certified copy of a court's determination of unreasonable refusal pursuant to § 18.2-268.3 shall be prima facie evidence that the defendant unreasonably refused to submit to the test.

Muri v. Killeen, VLW 004-3-1330(USDC-WD 2004)
Where defendant, after consuming alcohol at a company-sponsored dinner, turned the wrong way onto a divided highway and continued to drive on the wrong side of the road at 40-50 mph, despite being passed by a "fair number" of oncoming vehicles, and he failed five field sobriety tests and had a .075 percent blood alcohol level two hours after a traffic accident, the driver injured in the accident can sue the defendant for punitive damages.

Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180 (2003)
The Virginia Supreme Court held that a "jury could properly conclude that DeGarmo's conduct amounted to more than simple negligence and reflected a conscious disregard for the safety of others," where DeGarmo was intoxicated, knew Sowers was intoxicated, and yet encouraged Sowers to drive faster on roads he knew were difficult to navigate at night.  The two men had consumed more than two fifths of whiskey together between 5 p.m. and 11 p.m., at which time they were involved in a vehicle accident.  Sowers crossed into the oncoming lane of traffic and collided head on with another vehicle. DeGarmo and Sowers then moved to the back seat of the vehicle and told the police that the driver had exited the vehicle and fled. DeGarmo had a blood alcohol level of 0.179 and Sowers had a blood alcohol level of 0.264. 

Woods v. Mendez, 265 Va. 68 (2003)
The Supreme Court also found that the trial court erred in striking the punitive damage claim where the defendant operated a motor vehicle after consuming at least 10 beers, continued to drink, knew he was in danger in falling asleep and, did in fact, fall asleep prior to impact.

Webb v. Rivers, 256 Va. 460, 507 S.E.2d 360 (1998) 
The Virginia Supreme Court held that a jury issue was presented on the punitive damages question where the defendant drove through a red light at ninety (90) miles per hour in a twenty-five (25) mile per hour speed zone of a residential neighborhood with a 0.21 percent blood alcohol level and was so drunk he did not know where he was or the time of night.

Booth v. Robertson, 236 Va. 269 (1988)
In the first case by the Virginia Supreme Court where punitive damages were explicitly recognized as a remedy against drunk drivers.  The court found punitive damages should have been submitted to the jury on the facts of the case, where at about 7:50 p.m., the defendant, operating a jeep, drove the wrong way down the exit ramp for northbound traffic at Exit 39 and entered the northbound lanes of Interstate 81 into the path of an approaching tractor-trailer truck. Seeing the defendant's jeep coming toward him, James Hogan, the driver of the truck, blinked his lights and blew "a constant blast" on his air horns. Hogan also turned his vehicle to the right and then to the left in an effort to avoid a collision with the jeep. The defendant finally passed Hogan on the latter's left side and "just kept going . . . at a pretty high rate of speed." At a point approximately four-tenths of a mile south of Exit 39, the defendant collided head-on with the plaintiff. The defendant was charged with driving under the influence and reckless driving. A certificate of blood analysis showed that after the accident, he had a blood alcohol content of 0.22% by weight by volume. The defendant later pleaded guilty to the charge of driving under the influence.

The court held that the subjective statements of the defendant denying any conscious disregard of the rights of others was not determinative but determined that the objective fact that the defendant voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provided sufficient proof of his conscious disregard of the rights of others. The court rejected defendants contention that because of his high state of intoxication, he was "less [able] to be aware of the consequences of what [he was] doing." explaining that in Essex, a criminal case, the court held intoxication is "irrelevant to the determination of malice," but that it is "relevant to a determination of the degree of the defendant's negligence: whether ordinary, gross, or wanton." Id., 322 S.E.2d at 221-22 and that intoxication may "serve to elevate the defendant's conduct to the level of 'negligence so gross, wanton, and culpable as to show a reckless disregard of human life.'" Id., 322 S.E.2d at 222 (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)).

Huffman v. Love, 245 Va. 311, 427 S.E.2d 357 (1993)
The Virginia Supreme Court held the evidence was sufficient on the issue of punitive damages, where an intoxicated defendant drove his vehicle into an oncoming lane of traffic and side swiped a vehicle operated by the plaintiff. The defendant had also caused a collision immediately prior to the accident in question when he rear-ended another vehicle. The defendant in Huffman was driving twenty-five (25) miles per hour in a fifteen (15) mile per hour zone, failed to stop at the scene and continued to drive for three (3) miles after the accident. When he was finally stopped he could not talk, walk, or stand without assistance. His blood alcohol level was recorded at 0.32 percent and the Court noted that he had been convicted twice for drunk driving prior to the accident at issue.

Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003)
The Virginia Supreme Court ruled that punitive damages were unavailable where (1) there was no evidence that defendant exceeded the speed limit or a reasonable speed under the circumstances, (2) that he was driving on his proper side of the street and, (3) that he was apparently operating a properly functioning vehicle, concluding that the unknown motorist's behavior was not the "egregious" conduct spoken of in the cases of the Virginia Supreme Court and required to sustain a claim of punitive damages.

Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340 (1993)
The Virginia Supreme Court held that the evidence was insufficient to permit an award of punitive damages where an intoxicated defendant rear-ended a stopped vehicle. Noting that the accident happened at night, the Court held that a jury could have found that the defendant was traveling very fast just prior to the collision, that there was no indication that he applied his brakes before impact, and that he attempted to leave the scene of the collision. Nevertheless, the Court concluded that these "combined factors are insufficient to justify a finding of the wanton negligence necessary for an award of punitive damages."

Hack v. Nester, 241 Va. 499, 404 S.E.2d 42 (1991)
The Virginia Supreme Court held that the evidence failed to establish the conscious disregard for the plaintiff's safety necessary to sustain an award of punitive damages, where the defendant had consumed most of a pitcher of beer shortly before the accident and had two prior drunk driving convictions. The defendant operated his vehicle at night without a left headlight and while he was suffering from night blindness and his vehicle collided head-on with plaintiff's vehicle on a curve while on the plaintiff's side of the highway.

Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960)
The Virginia Supreme Court concluded that the issue of punitive damages should not have been submitted to a jury where an intoxicated defendant caused a rear-end collision on a city street, stating that exemplary damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others. However, where the act or admission complained of is free from fraud, malice, oppression, or other special motives of aggravation, damages by way of punishment can not be awarded and compensatory damages only are permissible.

Vest v. Paxton, 1996 U.S. Dist. LEXIS 8199, 1-2 (W.D. Va. 1996).

Paxton, who had a history of drinking, had consumed approximately 12 ounces of bourbon, enough to feel "buzzed," and then driove on I-64. He states that as he sought to pass a tractor trailer, he moved into the left lane and lost control. Other witnesses say he was travelling consistently in the left lane at a high rate of speed and then lost control. Leaving skid marks across the road and median, he spun across the median and struck the vehicle driven by Vest, with her children as passengers. Paxton claims that he attempted to render assistance to Vest and then climbed a fence seeking aid from nearby houses. Other witnesses dispute that he ever attempted to render assistance and was climbing the fence in an effort to leave the scene. Paxton's Blood Alcohol Content ("BAC") was in the range of 0.20% to 0.23%. Prior to this accident Paxton had been arrested for Driving Under the Influence ("DUI"), he plead guilty to that DUI subsequent to the instant accident. His drinking on the evening of the collision with Vest was greater than that associated with the prior DUI.

The court stated that in tort cases arising from an intoxicated driver, punitive damages are appropriate where significant aggravating facts of prior acts establish that the defendant had knowledge that his acts would result in injury. Evidence of intoxication alone is insufficient to support punitive damages.

The court distinguished Puent, finding Paxton left skid marks preceding the collision which "could indicate that Paxton attempted to bring his vehicle under control by applying brakes." The court also noted that unlike Booth, "there were no other drivers actively signaling to Paxton that his conduct was incorrect or dangerous."