Proof Required for Punitive Damages in West Virginia

The law of punitive damages in West Virginia was substantially altered in the 1991 case of Garnes v. Fleming Landfill, Inc. Before Garnes, a defendant had little protection from excessive punitive damages awards. After Garnes, procedural safeguards for defendants such as requiring post-trial review of the award by the trial court were imposed, and it clearly delineated how and in what actions punitive damages can be awarded.

Punitive damages are designed to punish the wrong-doer for aggravating circumstances that caused harm to a plaintiff, and to deter similar conduct in the future. It also encourages the parties to seek an out-of-court settlement.

To recover punitive damages, a plaintiff has the burden of showing by a preponderance of the evidence that the defendant's conduct was malicious, intentional, and wanton and that it demonstrated criminal indifference to the defendant's civil obligations or to the rights of the plaintiff. To recover, the plaintiff is required to have first been awarded compensatory damages or actual losses.

Examples of Claims Involving Punitive Damages

Many types of punitive damages may be authorized under West Virginia law. Any defendant in an injury or death case may be liable for punitive damages where the plaintiff makes the requisite showing. In certain cases, the plaintiff has the advantage in that the defendant's conduct can be easily shown to be reckless, such as when a defendant was driving drunk and injured the plaintiff. A victim of a drunk driving accident can show reckless negligence by submitting evidence of the defendant's intoxication.

In employment cases, punitive damages can be awarded against an employer for retaliatory discharge or for intentionally and maliciously withholding workers' compensation benefits from an employee. An employer can be held liable for the acts of its employee or agent if the employee harmed another person while acting within the scope of employment.

A landowner harmed by the theft of his trees and fruit can recover punitive damages along with three times the amount of actual damages (sometimes referred to as treble damages) because of the different purposes of punitive and compensatory damages.

Statutorily authorized punitive damages are available to residents in assisted living or nursing care facilities if their contractually or statutorily created benefits or rights were denied. Punitive damages are also available to victims of unlawful discriminatory housing practices.

Further, a provision in a retailer's purchase and finance agreement cannot prohibit punitive damages in a suit against the seller.

West Virginia law bars some plaintiffs from seeking punitive damages in certain circumstances. Matters not subject to punitive awards are cases against the state or any political subdivision or its employees, or breach of contract cases where the plaintiff elects to sue on a contract basis and not in tort. Punitive damages awards are also not allowed in actions requesting equitable relief, such as injunctions.

If you were harmed by someone else, you may have a claim for compensatory damages to make you whole. But you may also have a claim for punitive damages. Talk to an experienced personal injury attorney in West Virginia about your legal rights and options as claims involving punitive damages can be complex.