bankrupt DUI liability under Chapter 7
Damages - Generally
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.
Permitting Punitive Damages Against Drunk Drivers
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.
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.
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.
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
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.
were no punitive damages were awarded
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
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.
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."
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.
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.
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
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."
Injured by Drunk Driver
-- It's time to fight back! --
Representing Victims of Drunk Driving
Thomas H. Roberts, Esq.
To Woman Injured
By Drunk Driver
A Chesterfield Jury awarded plaintiff $800,000.00 against defendant. Plaintiff's attorney, Thomas H. Roberts from the law firm of Thomas H. Roberts and Associates,
P.C., was successful in obtaining a ruling from the court that under bankruptcy law, debts
and liabilities caused by the unlawful operation of a motor vehicle while under the
influence of alcohol and drugs was a non-dischargeable debt.
Plaintiff stated, "I was told by one of those firms that advertise
on T.V., since [defendant] filed bankruptcy, I didnt have a case. Mr. Roberts is a real
fighter, never gave up and got me results that others couldnt."
Not every lawyer or law firm has what it takes to obtain a verdict in
excess of $1 Million ($1,000,000.00).
Don't you want a lawyer who has been there and done that to handle your case
when you have a serious injury?
One of the Largest Jury Verdicts in Virginia
2002 - reported Lawyer's Weekly
In 2002, the largest jury verdict in the
history of Henrico County
City of Richmond, Henrico County, Chesterfield County
Powhatan County, Goochland County, Hanover County, City of Petersburg
The facts and circumstances of each case are unique and
therefore the fact that a law firm has obtained significant verdicts and results
in other cases in no way guarantees that other cases will have similar results.