Woods v. Mendez

PRESENT: All the Justices

NICHOLE WOODS

v. Record No. 020466 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 10, 2003
ARMANDO V. MENDEZ, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Rossie D. Alston, Jr., Judge

In this appeal, we consider whether the trial court erred

in sustaining the defendants' demurrers on the grounds that the

plaintiff failed to state a claim for punitive damages either

under Code § 8.01-44.5 or at common law.

On June 27, 1999, about 2:30 a.m., the plaintiff, Nichole

Woods, was a passenger in a vehicle (the Woods vehicle)

traveling north on Interstate Route 95 in Prince William County.

The Woods vehicle slowed as it approached a vehicle (the Mendez

vehicle) owned by Ernesto Mendez-Chavez and driven by his

cousin, Armando V. Mendez. 1 The Woods vehicle was unable to pass

the Mendez vehicle, which "swerved . . . back and forth" across

three lanes of the highway "so as to impede and obstruct" the

movement of other vehicles.

At the same time, another vehicle, driven by James W.

Molle, collided with the rear end of the Woods vehicle, causing

1
Ernesto Mendez-Chavez was a defendant in the trial court
on Woods' claim that he negligently entrusted his vehicle to
Armando Mendez. Ernesto Mendez-Chavez was found jointly and
severally liable for Woods' injuries in the same trial with the
other defendants.
the Woods vehicle to collide with the Mendez vehicle. The Woods

vehicle was "sandwiched" between the Mendez and Molle vehicles

and was forced off the highway by the impact of the combined

collisions. The Woods vehicle burst into flames, and Woods was

injured as a result of the accident. Samples of Molle's blood,

taken at 5:56 a.m., were subjected to two separate chemical

analyses, which indicated that Molle had a blood alcohol

concentration (BAC) of 0.13% and 0.14% by weight by volume,

respectively.

Woods filed a third amended motion for judgment in the

trial court alleging, among other things, that she was injured

because of the negligent acts of Armando Mendez (Mendez) and

Molle. In Count I, she sought compensatory damages for the

defendants' alleged negligence. In Count II, Woods asserted a

claim for punitive damages against Mendez containing various

allegations, including the claim that "Mendez's conduct was so

willful and wanton as to show a conscious disregard for the

rights of others." She alleged that Mendez, who was operating a

vehicle with a BAC of at least 0.15%, "intentionally swerved"

the vehicle "back and forth across three lanes of interstate

highway so as to impede and obstruct other motorists."

In Count III, Woods asserted a claim against Molle for

punitive damages, alleging that his conduct was "so willful and

2
wanton as to show a conscious disregard for the rights of

others." She alleged that Molle drove his vehicle while legally

intoxicated after consuming "at least 10 beers," and that at the

time of the collision his BAC was "0.15% or more by weight by

volume." She also alleged that Molle continued to drink beer

while he was driving on the highway and fell asleep, "completely

unaware" of her vehicle or the Mendez vehicle. She further

asserted that Molle drove his vehicle "with insufficient sleep

and with actual or constructive knowledge that he was in danger

of falling asleep." Woods also alleged that Molle did not

attempt any evasive action before his vehicle collided at "full-

force" with the rear of the Woods vehicle "at a speed of at

least 60 miles per hour."

Mendez filed a demurrer to Count II on various grounds,

including the ground that Woods failed to state sufficient facts

to support a common law claim for punitive damages. Molle filed

a demurrer to Count III, asserting that Woods failed to allege

sufficient facts to support a claim for punitive damages either

at common law or under Code § 8.01-44.5.

At the time of the proceedings in the trial court, before

the amendment of Code § 8.01-44.5 in July 2002, the statute

provided in relevant part 2 :

2
In July 2002, the General Assembly amended clause (ii) of
the second paragraph of Code § 8.01-44.5 concerning a

3
 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, or during the
time he was, drinking alcohol, he knew that he was
going to operate a motor vehicle, engine or train; and
(iii) the defendant's intoxication was a proximate
cause of the injury to or death of the plaintiff.

At a hearing, Molle argued, among other things, that Woods'

claim against him for punitive damages under the statute was

fatally deficient because the certificates of analysis showed

that his BAC fell below the 0.15% statutory threshold required

to establish such a claim. Molle asserted that in civil, as

well as in criminal, cases "there should be a presumption that

the BAC is the same at the time that the blood is taken or the

breath is tested as it was at the time of the accident."

In support of her statutory punitive damages claim against

Molle, Woods proffered evidence that a forensic toxicologist

would testify at trial that Molle's BAC was "far in excess" of

defendant's knowledge as it pertains to the willfulness of his
conduct. That change does not affect the disposition of this

4
0.15% at the time of the collision. Woods also proffered

evidence that the toxicologist would base his opinion on the

existing test results and would testify that Molle's BAC

declined after the accident as the alcohol metabolized in his

system.

The trial court sustained Mendez's and Molle's demurrers.

The court concluded that the allegations, considered in the

light most favorable to Woods, failed to state a common law

claim for punitive damages against either defendant. In support

of its holding, the court observed that Woods' pleadings did not

allege facts indicating that either of these defendants "had

prior awareness, from their knowledge of existing circumstances,

that their conduct would probably cause injury to another."

The trial court also held that Woods' pleadings failed to

state a claim against Molle for punitive damages under Code

§ 8.01-44.5. The court first observed that the certificates of

analysis showed that Molle had a BAC of 0.13% and 0.14%, which

amounts were below the minimum concentration of 0.15% necessary

to support a claim for punitive damages under the statute.

The trial court also relied on the Court of Appeals'

decision in Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11

(1989). There, the Court of Appeals held that Code § 18.2-

266(i) establishes a rebuttable presumption that a defendant's

appeal.

5
BAC at the time of driving is the same as the BAC determined by

testing after his arrest, and that a defendant may challenge

such test results with other competent evidence. Id. at 300,

381 S.E.2d at 16. The trial court concluded that because Woods,

unlike the defendant in Davis, was a plaintiff in a civil case

rather than a defendant in a criminal prosecution, she was not

entitled to present evidence rebutting Molle's test results,

which were conclusive evidence of his BAC when the collision

occurred.

At trial, Mendez and Molle conceded liability and a jury

considered only the issue of compensatory damages. The jury

returned a verdict in favor of Woods against Mendez and Molle in

the amount of $27,365.50, plus interest. The trial court

entered judgment in accordance with the verdict.

On appeal, Woods first argues that Code § 8.01-44.5 does

not provide a presumption that a chemical analysis of a blood or

breath sample taken after an accident reflects a driver's BAC at

the time of the accident. She asserts that the statute's plain

language requires proof that a driver's BAC at the time of the

incident was 0.15% or greater, and does not restrict the type of

evidence that may be offered to prove that the driver's BAC

reached that level when the incident occurred. Thus, she

contends that the trial court erred in barring her from

producing evidence concerning Molle's BAC at the time of the

6
accident and in applying a conclusive presumption to the test

results measuring his BAC more than three hours later.

In response, Molle asserts that Code § 8.01-44.5

establishes a "bright line" requirement that a driver have a BAC

of 0.15% before being subjected to liability for punitive

damages. Molle argues that a plaintiff in a civil case should

not be permitted to meet this requirement by presenting evidence

that a driver's BAC at the time of an accident was higher than

the BAC results shown from chemical tests administered after the

accident. He relies on Davis to support his contentions. We

disagree with Molle's arguments.

Under basic rules of statutory construction, we consider

the language of Code § 8.01-44.5 to determine the General

Assembly's intent from the words contained in the statute.

Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90

(2001); Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496

(2001). When a statute's language is plain and unambiguous,

courts are bound by the plain meaning of that language.

Industrial Dev. Auth. v. Board of Supervisors, 263 Va. 349, 353,

559 S.E.2d 621, 623 (2002); Cummings, 261 Va. at 77, 540 S.E.2d

at 496; Earley v. Landsidle, 257 Va. 365, 370, 514 S.E.2d 153,

155 (1999). Therefore, when the General Assembly has used words

of a plain and definite import, courts cannot assign to them a

construction that effectively would add words to the statute and

7
vary the plain meaning of the language used. Burlile v.

Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001);

Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345,

349 (2001).

We conclude that the language of Code § 8.01-44.5 is plain

and unambiguous. This language permits a plaintiff who

institutes a personal injury action arising from the operation

of a motor vehicle to request punitive damages when the evidence

establishes that the defendant acted with malice or with willful

or wanton negligence. A person's conduct may be deemed willful

or wanton when certain statutory requirements are met. One such

requirement is that "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." Id.

The above language requires proof of a defendant's BAC at

the time of the incident and does not stipulate any particular

method of proving this fact. In contrast, the rebuttable

presumption recognized by the Court of Appeals in Davis is based

on the language of Code § 18.2-266(i), which requires that a

driver's BAC be determined by a particular mode of testing,

namely, "a chemical test administered as provided in this

article." Thus, we conclude that the holding in Davis is

inapposite to a proper construction of Code § 8.01-44.5.

8
 The trial court, however, used the holding in Davis to

create a conclusive presumption in Code § 8.01-44.5, in the

absence of any language in that statute requiring a particular

method of proof or otherwise reflecting a legislative intent to

provide a statutory presumption. The trial court's

interpretation was erroneous because it effectively added

language to the provisions of a plain and unambiguous statute.

Thus, we hold that Code § 8.01-44.5 does not establish any

evidentiary presumption regarding the results of a chemical

analysis conducted on a sample of a driver's blood or breath

taken after his arrest under Code § 18.2-266 for driving under

the influence of alcohol.

In reaching this conclusion, we express no opinion

concerning the admissibility of Woods' proffered expert

testimony about Molle's BAC at the time of the accident. The

admissibility of such expert testimony is a matter submitted to

the trial court's sound discretion upon application of

fundamental principles, including the requirement that the

evidence be based on an adequate foundation. John v. Im, 263

Va. 315, 319-20, 559 S.E.2d 694, 696 (2002); Keesee v. Donigan,

259 Va. 157, 161, 524 S.E.2d 645, 647-48 (2000); Tittsworth v.

Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263 (1996).

We turn now to consider Woods' argument that the trial

court erred in sustaining the defendants' demurrers to her

9
common law claims for punitive damages. She contends that the

recitations in her pleadings, as set forth above, sufficiently

alleged a common law claim for punitive damages against both

Molle and Mendez, because reasonable persons could conclude that

each defendant's conduct constituted willful and wanton

negligence.

In response, Molle and Mendez argue that the trial court

properly sustained their demurrers to Woods' common law claims

for punitive damages because the facts alleged in her pleadings

were insufficient to establish that their conduct was willful or

wanton. They assert that intoxication alone is not sufficient

to subject a negligent driver to a plaintiff's claim for

punitive damages, and that an intoxicated defendant is liable

for punitive damages only when he had knowledge before an

accident of other circumstances creating a likelihood of injury

to others. In addition, Mendez contends that Molle was the sole

cause of Woods' accident and injuries.

In resolving these issues, we first state the general

principles that govern our inquiry. Because Woods' punitive

damages claims were decided on demurrer, we consider as true all

material facts properly pleaded by her and all inferences that

may be drawn from those facts. Rutter v. Jones, Blechman, Woltz

& Kelly, P.C., 264 Va. 310, 312, 568 S.E.2d 693, 694 (2002);

10
McDermott v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903

(2000).

A claim for punitive damages at common law in a personal

injury action must be supported by factual allegations

sufficient to establish that the defendant's conduct was willful

or wanton. Huffman v. Love, 245 Va. 311, 314, 427 S.E.2d 357,

359-60 (1993); Booth v. Robertson, 236 Va. 269, 273, 374 S.E.2d

1, 3 (1988); see Alfonso v. Robinson, 257 Va. 540, 546-47, 514

S.E.2d 615, 619 (1999). 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. Id. at

545, 514 S.E.2d at 618; Harris v. Harman, 253 Va. 336, 340-41,

486 S.E.2d 99, 101 (1997). Each case raising an issue

concerning the sufficiency of a claim of willful and wanton

negligence must be evaluated on its own facts. Alfonso, 257 Va.

at 545, 514 S.E.2d at 618; Harris, 253 Va. at 341, 486 S.E.2d at

102; Huffman, 245 Va. at 315, 427 S.E.2d at 360.

Intoxication, of itself, will not subject a negligent

driver to a punitive damages award. Id. at 314, 427 S.E.2d at

360; see Baker v. Marcus, 201 Va. 905, 910, 114 S.E.2d 617, 621

(1960). Instead, a driver's alleged conduct must be considered

in its entirety in determining whether that conduct showed a

11
conscious disregard for the safety of others. Huffman, 245 Va.

at 314-15, 427 S.E.2d at 360. If reasonable persons could

disagree in their conclusions whether a defendant's alleged

conduct was so willful or wanton as to show a conscious

disregard for the rights of others, a trial court may not remove

the issue of punitive damages from the trial of a case. See id.

at 315, 427 S.E.2d at 360.

We disagree with Molle's argument that Woods' factual

allegations were insufficient to state a common law claim for

punitive damages. According to the facts alleged, Molle was

operating his motor vehicle after consuming "at least 10 beers,"

having attained a BAC level significantly greater than that

established for a criminal conviction of driving under the

influence of alcohol. He continued to drink beer while driving

his vehicle in this intoxicated state, knowing that he had not

slept sufficiently and was in actual danger of falling asleep.

Molle thereafter fell asleep and his vehicle collided with

Woods' vehicle at a speed of at least 60 miles per hour.

Because he fell asleep prior to the collision, Molle made no

attempt to slow his vehicle's speed or to take any other evasive

action to avoid the collision.

We hold that based on these facts, reasonable persons could

differ in their conclusions whether Molle acted with reckless

indifference to the consequences of his actions with knowledge

12
of circumstances indicating that he would probably cause injury

to others. We observe that the knowledge component of this

standard is supported by the cumulative circumstances of his

lack of sleep, his intoxicated state, and the fact that he knew

he was in actual danger of falling asleep. Thus, we conclude

that the trial court erred in striking Woods' common law

punitive damages claim against Molle.

We likewise conclude that Woods' allegations against Mendez

were sufficient to support a common law claim for punitive

damages. 3 Mendez had a stipulated BAC of 0.18% and, according to

Woods' pleadings, he intentionally swerved his vehicle "back and

forth" across three lanes of interstate highway in a manner that

impeded and obstructed other highway drivers.

We conclude that based on these facts reasonable persons

could differ in their conclusions whether Mendez's actions were

sufficient to meet the established standard for proving willful

and wanton negligence. The knowledge requirement of this

standard is supported by the allegations that Mendez

intentionally engaged in a sustained, highly erratic pattern of

driving that affected several lanes of travel on an interstate

3
Woods also had asserted a claim for statutory punitive
damages under Code § 8.01-44.5 against Mendez. At trial, the
court struck Woods' evidence on this claim based on its
conclusion that the evidence failed to show that Mendez knew he
would be driving when he began drinking, or during the time that

13
highway, endangering the other drivers who lawfully were

operating their vehicles at high rates of speed on the highway.

Mendez engaged in these dangerous maneuvers in an intoxicated

state evidenced by a BAC of more than twice the level

established for a criminal conviction of driving under the

influence. Thus, we conclude that the trial court erred in

striking Woods' common law punitive damages claim against

Mendez.

For these reasons, we will reverse the trial court's

judgment and remand the case for a trial on the merits of Woods'

statutory and common law punitive damages claims against Molle,

and on the merits of her common law punitive damages claim

against Mendez.

Reversed and remanded.

JUSTICE KINSER, concurring in part and dissenting in part.

I agree with the majority’s rationale and conclusion

regarding Nichole Woods’ claim for punitive damages pursuant to

Code § 8.01-44.5. However, I disagree with the majority’s

determination that Woods pled sufficient facts to state a claim

for common law punitive damages as to both defendants. In any

case involving willful and wanton negligence, the evidence must

show that a defendant had prior knowledge or notice of specific

he was drinking, alcohol. Woods has not appealed from this part

14
conditions, or of actions or omissions, that would likely cause

injury to other individuals. See Alfonso v. Robinson, 257 Va.

540, 546, 514 S.E.2d 615, 619 (1999); Clohessy v. Weiler, 250

Va. 249, 253, 462 S.E.2d 94, 97 (1995). As our previous cases

demonstrate, only the most egregious set of facts will justify

submitting the issue of punitive damages to a jury.

For example, in Booth v. Robertson, 236 Va. 269, 270, 374

S.E.2d 1, 1 (1988), the defendant drove his vehicle the wrong

way down an exit ramp onto Interstate 81 narrowly avoiding a

collision with a tractor-trailer truck. The driver of that

truck “blinked his lights[,] blew ‘a constant blast’ on his air

horns[,]” and had to swerve in order to avoid hitting the

defendant’s vehicle. Id. The defendant passed the truck and

“ ‘just kept going . . . at a pretty high rate of speed.’ ” Id.

He then traveled approximately four-tenths of a mile farther

down the interstate in the wrong direction before colliding

head-on with the plaintiff. Id. A certificate of blood

analysis indicated that, at the time of the accident, the

defendant had a blood alcohol content of 0.22% by weight by

volume. Id. at 271, 374 S.E.2d at 1. We held that “the

egregious set of facts presented” was sufficient to submit the

plaintiff’s punitive damages claim to a jury. Id. at 273, 374

S.E.2d at 3; see also Webb v. Rivers, 256 Va. 460, 464, 507

of the trial court's judgment.

15
S.E.2d 360, 363 (1998) (evidence that defendant drove 90 m.p.h.

in a 25 m.p.h. residential neighborhood, failed to stop at a red

traffic light, and had a blood alcohol content of 0.21% was

sufficient to submit punitive damages claim to a jury); Huffman

v. Love, 245 Va. 311, 313, 427 S.E.2d 357, 359 (1993)(evidence

that defendant had blood alcohol content of 0.32% and had caused

a collision immediately prior to the collision at issue was

sufficient to allow punitive damages claim to be presented to a

jury).

However, in Hack v. Nester, 241 Va. 499, 507, 404 S.E.2d

42, 45 (1990), we held that the evidence did not “present the

‘egregious set of facts’ presented in Booth” and that the trial

court, therefore, erred in submitting the issue of punitive

damages to the jury. Id. The defendant in Hack crossed into

the opposite lane of travel on a curve and collided with another

motorist, killing her. Id. at 502-03, 404 S.E.2d at 43. The

plaintiff based the punitive damages claim upon evidence that,

at the time of the accident, the defendant’s blood alcohol

content was somewhere between 0.09% and 0.114%, he had two prior

convictions for driving under the influence, and he was

operating the vehicle on the left side of the highway, without a

left headlight and while allegedly suffering from night

blindness. Id. at 506-07, 404 S.E.2d at 45. We concluded that,

although the defendant’s negligence certainly caused the death

16
of the other motorist, it did not show the conscious disregard

for her safety necessary to sustain an award of punitive

damages. Id. at 507, 404 S.E.2d at 45; see also Puent v.

Dickens, 245 Va. 217, 219, 427 S.E.2d 340, 342 (1993) (the

combined factors of a defendant, with a blood alcohol content of

0.24%, failing to apply brakes to avoid hitting a vehicle that

had stopped at a traffic signal and exhibited lighted brake and

rear lights was insufficient to justify an award of punitive

damages).

In my view, the requirement of prior knowledge of specific

conditions that would likely cause injury to others is missing

with regard to both defendants in this case. When compared to

our prior cases, the “knowledge component” is not satisfied by

Woods’ allegations that Armando V. Mendez had a blood alcohol

content of 0.18% and swerved his vehicle across several lanes of

an interstate highway, nor by the allegations that James W.

Molle was intoxicated and drove with insufficient sleep.

Allegations sufficient to show a conscious disregard for the

rights of others, such as prior accidents, near collisions, or

excessive speed, are missing in this case.

For these reasons, I respectfully concur in part and

dissent in part.

17