"Gary Hershner has a well-earned reputation for aggressive representation and for using creative ways to obtain maximum results for his clients.  That is why I asked Gary to represent my father in a serious car accident case."

-- Joesephy D. Morrissey, former VA State Delegate, Commonwealth's Attorney and Law Professor

Virginia Lawyers Weekly
November 16, 1998 / Page A-1

Publisher & Editor In Chief

Failure to meet statute won't doom claim

Even though an auto-accident plaintiff failed to prove a statutory claim for punitive damages against a drunken driver, he still can try a common-law punitives claim, the Supreme Court of Virginia has ruled.

The trial judge had struck both claims in a case where the defendant ran a red light at 90mph in a 25mph zone.  The defendant had a blood alcohol content of .21 percent, and he did not know where he was or what time it was when he caused tha accident.

Experts said the case serves as a huge practice tip to lawyers representing victims of drunken drivers:  Be sure to plead both statutory and common-law claims for punitives, they said.

The case is Webb v. Rivers (VLW 098-6-135).  Justice Leroy R. Hassell Sr. wrote the unanimous opinion.

Very Drunk

The accident occurred in Richmond's Fan District, as the plaintiff drove through the intersection of Hamilton Street and Grove Avenue.  He saw the defendant driving through the red light.

The defendant was going 90 in 25mph speed zone. Police officers later testified that the defendant was "very" drunk and in a stupor. he thought he was on the Boulevard, another street in Richmond, and that it was 10:00pm, when in fact it was 11:50pm.

He admitted he had been drinking and at 1:39am, a breath test revealed that he had a BAC of .21 percent. He pled guilty to driving under the influence.

The plaintiff sued, pleading both stautory and common-law claims for punitive damages.

Virginia Code § 8.01-44.5, adpoted in 1994, states that an auto-accident plaintiff may recover punitive damages if the evidence proves that the defnedant's conduct was "so willful or wanton as to show a conscious disregard for the rights of others."

The statue then statest that the defendant's conduct meets that standard if (i) he had a b.a.c. of .15 percent or more, (ii) at the time he began drinking, he knew he would drive, and (iii) his intoxication was the proximate cause of the plaintiff's injuries.

At the trial of the case, the defendant moved to strike all claims for punitives, wheich the judge granted. The jury returned a verdict for $350.

On appeal, the plaintiff argued that he had proved both claims.

But Hassell noted that the record was "simply devoid" of any evidence necessary to prove the second point of the test, that the defendant knew he would drive at the time he began drinking.

The court rejected the defendant's argument that there were not sufficient facts to support a common law punitives claim.

Relying on Puent v. Dickens, 245 Va. 217 (1993), the defendant argued that under that case, a plaintiff must show "such recklessness or negligence as evinces a conscious disregard of the rights of others."

In Puent, the high court disallowed a punitives claim. But here, Hassell said, the plaintiff established "sufficient facts" that might support a jury award of punitives.

Hassell recited the alleged facts:  The defendant ran a red light, going 90 in a 25 mph zone; he had b.a.c. of .21 percent; he was so intoxicated he didn't know the time or where he was.

The judge should not have struck this claim, Hassell wrote, as the court remanded the case for a trial on punitive damages only.

Lessons for Lawyers

Several experts who have litigated cases involving punitive damages and drunken driving said that the Webb case serves as a high-level practice tip:  When pleading a punitives-drunken driving case, lawyers need to include both statutory and common law claims for punitives.

"I believe that would be wise," said Bradley B. Cavedo of Richmond.

And a number of lawyers saw the Webb decision as fleshing out the interplay of the punitives statute, Code § 8.01-44.5, and common law.

Cavedo, who helped to draft the statute, said that the second portion of the statute, providing the three points that help to define "willful and wanton" are merely one way to meet the test and maintain the claim. "There are other ways," he said.

Cavedo added that the second section with the three points was never intended as a limitation on a plaintiff's basic ability to bring a punitives claim where a defendant evinced a "conscious disregard of the rights of others," the language used both in the case law and the code section.

The statute may be a help, but lawyers shouldn't use it as a crutch or see it as the end-all for getting punitives.

Virginia Beach attorney Robert C. Haddad said that the Webb case is "a good lesson for plaintiff's lawyers not to ignore the fact that even though we have this statue that seemingly makes it easier to get to the jury on punitive damages, you don't need that statute or to meet that statute to get them."

In Webb, the plaintiff had no evidence to show the defendant intended to drive after drinking.  Haddad said that that portion of test can be a bugaboo for plaintiff's lawyers. The defendant might testify that in fact, he had not intended to drive, and that he intended to get a ride home. His plans fell through, and he was confronted with an emergency situation, forcing him behind the wheel.

P. Brent Brown of Roanoke concurred that this section of the statutory test can present problems: It is not as easy as saying, "You intended to drive, didn't you?" he noted.

Still, a plaintiff's lawyer can usually pull out some facts that will satisfy this prong, he said, such as driving to the bar or a series of bars, alcohol in the car itself or other factors.

Brown said that the case, following a line of other cases on the same issue, emphasizes the job a plaintiff's lawyer can perform in addressing the societal problem of drunken driving.

By pursuing these kinds of suits, he said, plaintiff's lawyers can play "a unique role to say, we're just not going to tolerate this behavior."

The lawyers in the Webb case, Gary R. Hershner for the plaintiff and William Tyler Shands for the defendant, could not be reached for comment.