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Virginia's Unfair Punitive Damages Cap Penalizes Families

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BY JOHN M. COOPER, HSCLA ATTORNEY

Last December a teenager from Chesapeake, VA was killed in a hit and run wreck. The young man was a senior in high school riding his bike. The driver, who was in his 60s, hit the young man and sped away.

Now a lawsuit has been filed to try to get compensatory damages for the family for the loss of this young man. The at-fault driver was taking a medication that impaired his ability to drive at night. This certainly sounds like aggravated liability.

However, in Virginia, punitive (punishment) damages are rarely given. The fact that the old man may have been reckless in driving while on this drug is probably not enough to allow a judge to permit a jury to award punitive damages. Many people don’t realize that punitive damages are rarely given. General (compensatory) damages are the amount to pay the family back for the medical and funeral expenses, loss of their loved one and his companionship and that of comfort to the family. Punitive damages are an amount intended to punish the defendant. Under Virginia law and many other states, you have to prove not just gross neglect, but a nearly intentional or purposeful set of actions which is usually not present. Even evidence that the driver was drunk, is not automatically enough in Virginia to get punitive damages, unless the alcohol level is over a certain level.

The insurance companies have been successful at getting the legislature in Virginia to limit the awards that juries can grant for punitive damages. Even in a clear cut case of punitive damages, the most that can ever be awarded is $350,000.00. Although that may sound like a lot, it is nothing to many big corporations, like General Motors. $350,000.00 not only will not punish a multi-national company, the company will hardly even notice it. The insurance companies have so limited the ability to get punitive damages in Virginia, so even when the facts will permit them, there is very little deterrent to reckless drivers and companies when they harm, or even kill, people. This is the perfect example of how insurance companies have altered the civil justice system to insulate the insurer’s, but this penalizes families that suffer incredible losses.