Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Punitive Damages-Basis For. For more information on punitive damages see the pages on Wikipedia.

Punitive Damages-Basis For-Statutes

See Va. Code § 8.01-44.5, which provides that punitive damages may be awarded if defendant’s conduct is found to be so willful and wanton as to evidence conscious disregard for rights of others, which in regards to auto accident case may be established by defendant’s intoxication at blood alcohol level of 0.15 at time of accident, and that his intoxication was cause of accident and he knew before or while he was drinking that he would be operating a motor vehicle, engine or train.

Punitive Damages-Basis For-Cases

2015 Cain v. Lee, 290 Va. 129, 772 S.E.2d 894.
Trial court erred in giving an instruction about the disfavored status of punitive damage claims based upon published Virginia case law.

2010 Syed v. ZH Technologies, 280 Va. 58, 694 S.E.2d 625.
An award of compensatory damages is a necessary predicate for punitive damages except in actions for defamation.

2007 Banks v. Mario Indus., 274 Va. 438, 650 S.E.2d 687.
Punitive damages-basis for:Employee formed competing company during the course of his employment for the purpose of competing with his then employer. Based upon that evidence the court could conclude that the employee had malice to injure his employer.

2005 Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421, 611 S.E.2d 385.
In this instance, predecessor company installed fiber optic cable on the property of the plaintiff. Successor company thereafter acquired the fiber optic cable and entered into settlement discussions with plaintiff for compensation for the trespass. Settlement discussions broke down and the suit was filed for compensatory damages and punitive damages. The alleged wrongdoing of the defendant is the failure to remove the cable after it learned of its improper placement. That is not a basis for an award of punitive damages. Punitive damages are allowable only where there is misconduct, actual malice, recklessness, or negligence to show a conscious disregard of the rights of others. Where the conduct is free of fraud, malice, oppression, or other special motives of aggravation, punitive damages are not allowable.

2003 Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180.
In this uninsured motorist case the uninsured motorist carrier was not entitled to inform the jury of its presence in order to state that a punitive award would not deter wrong doing. Evidence supported award of punitive damage against intoxicated owner for negligent entrustment.

2003 Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263.
Auto accident case where plaintiff alleged that both defendants were intoxicated and driving recklessly. Trial court improperly sustained demurrer as to punitive damage claim. Claim for punitive damages in common law must be supported by factual allegations sufficient to establish that defendants’ conduct was willful or wanton. Intoxication alone will not subject a negligent driver to a punitive damage award. Facts alleged here were that first defendant was operating motor vehicle after consuming at least ten beers, he continued to drink while driving his vehicle knowing that he had not slept sufficiently and was in actual danger of falling asleep and then collided with plaintiff’s vehicle at a speed of at least 60 miles per hour and had made no attempt to slow his vehicle or take evasive action prior to collision. These facts are sufficient to establish punitive claim as to that defendant. As to the second defendant, he had blood-alcohol level of 0.18, intentionally swerved his vehicle back and forth across three lanes of interstate highway in a manner that impeded and obstructed other highway drivers. These facts are likewise sufficient to establish punitive damage claim. Plaintiff’s punitive damage claim under Va. Code § 8.01-44.5 likewise was sufficient. Trial court in this case improperly concluded that a rebuttable presumption exists that a defendant’s blood-alcohol level at the time of driving is the same as it is at the time of testing after his arrest. In this case, one defendant had a blood-alcohol level subsequent to the accident of 0.13. No such presumption exist in regards to § 8.01-44.5.

2003 Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174.
Issue is whether punitive damages were properly allowable in this auto accident case. From plaintiff’s point of view, defendant did not keep proper look out for vehicles stopped ahead of him, did not keep his vehicle under proper control, was probably intoxicated to some extent, and he feloniously left the scene of the accident. There was no evidence that defendant exceeded speed limit or reasonable speed, no evidence that he was driving on wrong side of the road and no evidence that his vehicle malfunctioned. This conduct is not egregious and as a matter of law, is not a basis for punitive damages. He allowed colleague to drive. Both of them were intoxicated with blood-alcohol level of over 0.15. Non-driver knew that driver at time of impact was intoxicated and unable to drive, yet, he urged him to drive and to actually speed up. That was sufficient basis for punitive damage award against him.

2003 PGI, Inc. v. Rathe Prods., Inc., 265 Va. 334, 576 S.E.2d 438.
Punitive damages-basis for:Conversion includes any wrongful exercise or assumption of authority over another’s goods depriving him of their possession and any act of dominion wrongfully exerted over property and denial of the owner’s right or inconsistent with it. In this case, Rathe received $250,000 from the Smithsonian but refused to pay any of the proceeds to PGI or to pay the outstanding billing of another entity, contrary to express agreement to do so. Jury was entitled to find that Rathe, without justification, wrongfully withheld settlement proceeds from PGI. This is sufficient to properly allege claim for conversion. Rathe did not inform PGI that it had received the $250,000. In this case, reasonable persons could disagree as to whether conduct in question was so willful and wanton to show a conscious disregard of the rights of others and therefore, the punitive damage claim should not have been stricken by the trial court.

2002 O’Connell v. Bean, 263 Va. 176, 556 S.E.2d 741.
Punitive damages-basis for:Legal malpractice action. Action for negligence of attorney in performance of professional services while sounding in tort, is in fact an action for breach of contract whether framed as breach of fiduciary duty or constructive fraud claim. For this reason, punitive damages may not be awarded for any such breaches in absence of an independent, willful tort giving rise to such damages.

2001 Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 547 S.E.2d 216.
Punitive damages-basis for:Evidence of wrongdoer’s net worth is admissible when imposing punitive damages although evidence of net worth is not absolutely necessary. In this case, LLC manager’s one-third ownership interest in LLC’s estimated nine million dollars in assets established that punitive damage award of $350,000 is not so large as to be destructive. Good faith reliance on advice of counsel is relevant but is not absolute defense to award of punitive damages. In this case, acts of manager of LLC in transferring LLC’s assets to a joint venture, based on legal advice sought by manager solely for purpose of manager’s personal estate planning goals, exhibited malice or wantonness, supporting award of punitive damages for manager’s breach of fiduciary duty. In reviewing award of punitive damages, appellate court makes independent review of record to determine whether it supports a finding of actual malice or wantonness by clear and convincing evidence.

1999 Simbeck, Inc. v. Dodd Sisk Whitlock Corp., 257 Va. 53, 508 S.E.2d 601.
Punitive damages-basis for:General rule in regards to punitive damages is such damages may be recovered only where there is misconduct or actual malice or such recklessness or negligence as to evince conscious disregard of the rights of others. This case where the claim is interference with business expectancy and breach of fiduciary duty, punitive damages may be awarded only if acts are done with malice or wantonness. Punitive damages are not favored generally and should be assessed only in cases involving most egregious conduct. In this case, plaintiff must prove malicious or wanton conduct on the part of defendant in order to recover punitive damages. Trial court properly ruled there was no such conduct. Defendant in this case was insurance agency. It obtained a quote from Occidental Insurance Company for coverage for plaintiff. Defendant was entitled to ten-day hold on that quote under circumstances of this case. Defendant refused to release quote to another agency unless other agency agreed to give defendant 50 percent of its commission and plaintiff agreed to execute a promissory note paying past due premiums due to defendant by plaintiff. Plaintiff refused to execute note, as a result, had to slow down its operations for short period of time since it appeared that it would not have the necessary insurance coverage to continue operating. Conduct of defendant in attempting to collect debt due it by plaintiff was not malicious or wanton in this case. It was merely act of commercial hard ball. Defendant’s violations of trade standards were basis of both tortious interference and breach of fiduciary duty claims. Such violations were insufficient as a matter of law to justify award of punitive damages.

1998 Smith v. Litten, 256 Va. 573, 507 S.E.2d 77.
Punitive damages-basis for:Defendant terminated plaintiff because at 79 years of age he was just too old. Plaintiff entitled to compensatory award along with punitive award. When plaintiff pleads and proves intentional tort under common law of Virginia jury may award punitive damages. Presentation of evidence as to defendant’s net worth was proper.

1998 Webb v. Rivers, 256 Va. 460, 507 S.E.2d 360.
Punitive damages-basis for:Under Va. Code § 8.01-44.5, plaintiff had to prove that at time defendant began or during time he was drinking alcohol he knew that he was going to operate motor vehicle. Plaintiff failed to produce evidence of that and therefore statutory claim for punitive damages is denied but punitive damages may still go to the jury on a common law basis. Viewing evidence in light most favorable to plaintiff, defendant was traveling at ninety miles per hour in residential neighborhood with twenty-five mile per hour speed limit, drove his car through a red light, had a blood alcohol level of 0.21, and was so intoxicated that he did not know where he was and did not know time of night. Common law claim for punitive damages is allowed.

1998 Advanced Marine Enters. v. PRC, Inc., 256 Va. 106, 501 S.E.2d 148.
Under Va. Code §§ 18.2-499 and 18.2-500 plaintiff does not have to prove actual malice but rather must prove legal malice that is proof that defendant acted intentionally, purposely, and without lawful justification. In this claim where defendants sought to hire block of employees of PRC without notice to PRC and employees took client documents and copies of documents containing confidential and proprietary information, standard had been met. Non-competition agreement in this case was held enforceable because it was limited to eight months and dealt only with specific services to be performed within fifty miles of a PRC office. Award of treble damages and punitive damages was not duplicative because they were awarded under different theories of recovery. Treble damages were awarded under business conspiracy claim wherein PRC was required to prove that defendants combined, associated, agreed, or acted in concert together for purpose of willfully and maliciously injuring PRC in its business by any means whatever. Punitive damages were awarded under breach of fiduciary duty and intentional interference claims.

1998 Shaw v. Titan Corp., 255 Va. 535, 498 S.E.2d 696.
When plaintiff pleads and proves intentional tort under common law of Virginia, punitive damages may be awarded.

1993 Ingles v. Dively, 246 Va. 244, 435 S.E.2d 641.
Punitive damages-basis for:To recover punitive damages for defamation, plaintiff must prove by clear and convincing evidence that defendant knew statements he made were false at time he made them, and that he made them with reckless disregard for their truth. Evidence in this case was not sufficient to support conclusion that defendant made statements with required knowledge of their falsity or reckless disregard for their truth, and as such punitive damage claim dismissed.

1993 Huffman v. Love, 245 Va. 311, 427 S.E.2d 357.
Punitive damages-basis for:Auto accident case where defendant’s blood alcohol level was 0.32, defendant crossed over into oncoming lane of traffic while traveling 10 miles over speed limit and after collision left scene of accident. When he was finally stopped, he could not talk, walk, or stand without assistance. In addition, defendant had been involved in prior collision about 1 mile from scene of this accident. Purpose of punitive damages is to provide protection of public, as punishment to defendant, and as warning and example to deter him and others from committing similar offenses. In this case, jury issue presented as to punitive damages.

1993 Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340.
Punitive damages-basis for:Jury in this case could have concluded that defendant was drunk, that he was going very fast, that he did not attempt to stop before striking rear of plaintiff’s vehicle, and that he attempted to leave scene of accident after collision. These factors are insufficient to justify finding of wanton negligence necessary to award punitive damages.

1992 Bowers v. Westvaco Corp., 244 Va. 139, 419 S.E.2d 661.
Punitive damages should only be awarded in most egregious cases. Conduct must be so willful or wanton as to evince conscious disregard of rights of other as well as malicious conduct. Operation of truck staging area not sufficient to justify punitive damages.

1992 Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 413 S.E.2d 630.
Punitive damages-basis for:Asbestosis case against manufacturer. Punitive damage issue properly submitted to jury since evidence showed that the defendant knew that inhalation could cause lung disease, it actually concealed this information, and did not warn insulators of such dangers although it did warn its employees. In this instance, there were certain positive acts committed which jury could have concluded constituted willful conduct evincing conscious disregard of rights of others.

1991 Hack v. Nester, 241 Va. 499, 404 S.E.2d 42.
Punitive damages-basis for:Defendant had two prior convictions for drunk driving, was drinking on day of the collision, and was operating his vehicle at night on wrong side of roadway without left headlight while allegedly suffering from night blindness. These facts are insufficient to submit issue of punitive damages to jury. Court was unable to say that it showed conscious disregard for safety necessary to sustain punitive damages.

1989 Infant C. v. Boy Scouts of Am., 239 Va. 572, 391 S.E.2d 322.
Punitive damages may be warranted for negligence which is so willful or wanton as to evince conscious disregard of rights of others.

1988 Booth v. Robertson, 236 Va. 269, 374 S.E.2d 1.
Punitive damages allowable where there is misconduct or malice or such recklessness or negligence as evinces a conscious disregard of rights of others. Jury issue presented as to punitive damages in this auto accident case where defendant had BAC of 0.22 and driving on wrong side of road. This type of negligence which is so willful or wanton as to evince a conscious disregard of rights of others will support award of punitive damages. Court expressly states it does not intend to allow punitive damages in run of mill personal injury cases.

1988 Philip Mortis, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268.
Punitive damages-basis for:Willful and wanton negligence may be basis for award. Chemical disposal company’s actions in allowing super-toxic chemicals to escape were sufficient basis for punitive damages. Several illustrative cases cited.

1987 Richmond Newspapers v. Lipscomb, 234 Va. 277, 362 S.E.2d 32.
Punitive damages-basis for:Defamation action by private person against media defendant. To recover punitive damages plaintiff must prove New York Times malice by clear and convincing evidence. Several factors cited as to whether malice has been proved.

1987 Cheatle v. Rudd’s Swimming Pool Supply, 234 Va. 207, 360 S.E.2d 828.
Punitive damages-basis for:Valid finding of compensatory damages is generally necessary for award of punitive damages.

1987 Harrell v. Woodson, 233 Va. 117, 353 S.E.2d 770.
Pleading must contain request for punitive damages otherwise they may not be obtained.

1986 Wallen v. Allen, 231 Va. 289, 343 S.E.2d 73.
Punitive damages-basis for:Jones hired Wallen as driver. Wallen rear-ended school bus. Wallen had limited experience but nothing suggested he was not fit to drive. Jones pled guilty to violations of Federal Common Carrier Regulations. This evidence does not justify award of punitive damages. Criterion: wanton, oppressive conduct or with such malice as to evince spirit of malice or criminal indifference to civil obligations.

1985 Valley Acceptance Corp. v. Glasby, 230 Va. 422, 337 S.E.2d 291.
Punitive damages-basis for:Where no compensatory or nominal damages have been awarded, court may not award punitive damages.

1984 Gasque v. Mooers Motor Car Co., 227 Va. 154, 313 S.E.2d 384.
Punitive damages are not available in suits for breach of contract, and can be awarded only where independent willful tort is alleged and proved.

1983 Kamlar Corp. v. Haley, 224 Va. 699, 299 S.E.2d 514.
Punitive damages-basis for:Proof of independent willful tort beyond mere breach of duty imposed by contract is required for award of punitive damages, regardless of motives underlying breach.

1982 Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675.
Punitive damages were not warranted where plaintiff failed to carry burden of showing defendant had “conscious disregard of the rights of others.”

1981 Peacock Buick, Inc. v. Durkin, 221 Va. 1133, 277 S.E.2d 225.
Punitive damages award is proper only when actual malice or malice in fact established. Actual malice may be shown if defendant’s action prompted by ill will, grudge, spite, wicked intention or conscious disregard of rights of others.

1978 Jordan v. Sauve, 219 Va. 448, 247 S.E.2d 739.
Punitive damages-basis for:Defendant misrepresented car it sold to plaintiff as new car. Elements of proof necessary to support claim for punitive damage discussed. Jury could have found that defendant’s actions evidenced misconduct of such reckless or negligent character as to amount to conscious disregard of plaintiff’s rights.

1978 Goodstein v. Weinberg, 219 Va. 105, 245 S.E.2d 140.
Punitive damages-basis for:General rule is that exemplary or punitive damages are not allowed for breach of contract. This rule does not apply, however, in those exceptional cases where breach amounts to independent willful tort since plaintiff has right to elect whether he will proceed in tort or upon contract.

1978 Lee v. Southland Corp., 219 Va. 23, 244 S.E.2d 756.
Punitive damages-basis for:Malicious prosecution action. Proper to award punitive damages only when actual malice or malice in fact has been established by evidence. Legal malice, which may be inferred from want of probable cause, is not sufficient. Actual malice, or malice in fact, may be established by showing that prosecutor’s action was prompted by ill will, malevolence, grudge, spite, wicked intention or conscious disregard of rights of another. Question for jury in this case.

1976 Newspaper Pub’g Corp. v. Burke, 216 Va. 800, 224 S.E.2d 132.
Punitive damages-basis for:When defamation is actionable per se, punitive damages may be awarded without compensatory damages against media by clear and convincing evidence of New York Times standard of actual malice.

1976 Bain v. Phillips, 217 Va. 387, 228 S.E.2d 576.
Punitive damages-basis for:Malicious prosecution action. Jury issue on punitive damages.

1974 O’Brien v. Snow, 215 Va. 403, 210 S.E.2d 165.
Punitive damages-basis for:Defendant discharged loaded shotgun toward plaintiff’s residence causing damage to its exterior. Court entered summary judgment for defendant on issue of punitive damages. Error: plaintiff should have been allowed to present his evidence regarding allegations that, if supported by proof, would entitle him to award of punitive damages.

1973 FBC Stores v. Duncan, 214 Va. 246, 198 S.E.2d 595.
Punitive damages-basis for:Actual malice must be established to support award for punitive damages in malicious prosecution action.

1971 Gaut v. Pyles, 212 Va. 39, 181 S.E.2d 645.
Punitive damages are allowable only when there is proof of actual or express malice. In present case fact that defendant was mistaken and lacked probable cause is not sufficient basis for punitive damages.

1967 Giant of Va., Inc. v. Pigg, 207 Va. 679, 152 S.E.2d 271.
Punitive damages-basis for:Malicious prosecution action. In order to authorize recovery of compensatory damages, it is necessary only that plaintiff prove legal malice. But to recover punitive damages, plaintiff must show that defendant acted with actual malice, in sense of personal ill will, or under circumstances of insult, rudeness or oppression, or in manner showing reckless and wanton disregard of plaintiff’s rights. Also, actual malice must be shown by evidence especially addressed to this question; it cannot be inferred from showing of want of probable cause.

1967 Wilson v. Whittaker, 207 Va. 1032, 154 S.E.2d 124.
Punitive damages not recoverable in wrongful death action; reversible error to so instruct jury.

1963 Dalton v. Johnson, 204 Va. 102, 129 S.E.2d 647.
Where tortfeasor has died, punitive damages may not be awarded against estate.

1963 Jackson v. Prestage, 204 Va. 481, 132 S.E.2d 501.
Punitive damages-basis for:Plaintiff’s claim for punitive damages was stricken because there was no allegation sufficient to support finding of punitive damages even though plaintiff alleged gross negligence due to voluntary intoxication of defendant.

1962 Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299.
Punitive damages-basis for:Intoxication of driver is not sufficient basis for punitive damages.

1960 Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617.
Punitive damages recoverable where defendant has acted wantonly, oppressively or recklessly, evidencing conscious disregard for rights of others. Where neglect of defendant consists of driving automobile under influence, this does not justify award of punitive damages.

1957 Worrie v. Boze, 198 Va. 891, 96 S.E.2d 799.
Punitive damages-basis for:Personal representative of person wronged may recover punitive damages of wrongdoer.

1956 Wright v. Everett, 197 Va. 608, 90 S.E.2d 855.
Punitive damages will not be awarded on showing of gross negligence alone. It must be shown that defendant acted wantonly or oppressively in spirit of mischief or criminal indifference to his obligation. If facts show breach of duty showing tortious neglect in breach of contract case, plaintiff may sue in tort; but even in such case, as general rule, exemplary damages will not be allowed for breach of contract.

1955 MacPherson v. Green, 197 Va. 27, 87 S.E.2d 785.
Punitive damages-basis for:In detinue action, if taking or detaining is done from wanton or malicious motive or under circumstances of great hardship or oppression, punitive damages may be allowed. Not applicable here.

1953 United Constr. Workers v. Laburnum, 194 Va. 872, 75 S.E.2d 694.
Punitive damages-basis for:Willful and unauthorized destruction of one’s business is ground for punitive damages.

1948 Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363.
Punitive damages-basis for:Assault action. Motive of defendant may be considered in assessing punitive damages.

1946 Cook v. Patterson Drug Co., 185 Va. 516, 39 S.E.2d 304.
Punitive damages-basis for:Defamation action. Actual malice must be established to justify punitive damages.