Statutory Punitive Damages for Hit-and-Runs: A New Tool for Victims
On July 1, 2025, on a rural highway in Virginia, miles away from the closest town, Frank Jones rear-ended Nancy Smith on a highway. As a result of the collision, Nancy hits her head on the steering wheel, causing her nose to bleed and a knot to develop on her head. Immediately after the collision, Nancy Smith looks in her rearview mirror, sees Frank Jones’s license plate and writes down his license plate number. After writing down Frank Jones’s license plate number, Nancy notices her nose is bleeding, that she has neck pain and is dizzy. When Frank Jones comes to her window, she tells him that she is injured and he tells her that her vehicle has sustained significant damage. Before emergency personnel arrive at the scene, Frank Jones flees the scene of the collision, leaving Nancy Smith alone, injured, and unable to safely operate her vehicle. While officers eventually are able to track Frank Jones down and charge him for causing the collision and leaving the scene of the collision, that is a cold comfort to Nancy Smith, who was traumatized from Frank Jones abandoning her for injuries he had caused her to suffer.
While emergency personnel arrived at the scene, Nancy Smith does not immediately recover from her injuries. EMTs rush her to Bon Secours Southside Medical Center and then she has a round of physical therapy to treat her concussion symptoms and neck pain. At the end of her treatment, her bills are a little over $10,000. She hires counsel to represent her related to a personal injury action against Frank Jones.
Meanwhile, although Frank Jones is unrepentant for rear-ending Nancy Smith and fleeing the scene, the Commonwealth fails to punish him. At Frank Jones’s criminal trial, it is revealed that the officer who arrested Frank Jones has retired and moved to Alaska, making him unavailable for trial and dooming the Commonwealth’s case against Frank Jones.
After negotiations are unable to resolve the case presuit, Nancy Smith’s counsel contemplates filing a suit against Frank Jones. Nancy Smith expresses to her counsel that Frank Jones’s conduct is so egregious that she would like to look beyond just compensating herself for her injuries and into punishing Frank Jones. Nancy Smith’s counsel agrees that Frank Jones’s conduct should be sufficient to punish him for his actions. Therefore, Nancy Smith’s counsel files a lawsuit against Frank Jones not only for compensatory damages but also punitive damages.
Boom! The moment that the case is assigned to Frank Jones’s counsel, she springs into action filing a demurrer related to Nancy Jones’s punitive damages claim against Frank Jones. In quick succession, Frank Jones’s counsel notices a hearing on the demurrer and the Court sustains Frank Jones’s counsel demurrer to Nancy Jones’s punitive damages claim.
In what seems like a flash, Nancy Smith’s punitive damage claim against Frank Jones is extinguished and Frank Jones’s conduct after the collision is irrelevant to the case.
Before this year, this hypothetical was all too common in the Commonwealth under controlling case law of Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003). In the underlying collision related to those consolidated cases, the undisputed facts are as follows: the Isaacs (Mr. and Mrs. Issacs) were rear-ended by a motorist who struck the Issacs’ car. That unknown motorist, hereinafter referred to as “John Doe,” staggered to the Issacs’ vehicle on foot after the collision. When John Doe spoke to the Isaacs, his speech was slurred and he asked them not to call the police. After speaking to the Isaacs, John Doe drove away from the scene of the collision before the police arrived. John Doe’s identity was never revealed.
On appeal, although the jury had awarded $175,000 in punitive damages in each case, the Supreme Court of Virginia reversed the judgments for punitive damages. The standard that the Court applied was the same contemplated in Booth v. Robertson, which stated “that negligence which is so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct, will support and award of punitive damages in a personal injury case.” 236 Va. 269, 273, 374 S.E.2d 1, 3 (1988). Reviewing the facts in Isaacs, the Court noted that John Doe’s bad behavior was the following: failure to keep a proper lookout of vehicles stopped ahead of him, failure to keep his vehicle under proper control, probable intoxication and feloniously leaving the scene of the collision. Isaacs, 265 Va. at 538, 579 S.E.2d at 178. However, the Court also noted that there was no evidence the John Doe was driving an unreasonable speed under the circumstances or that he was driving on the wrong side of the road. Id. Ultimately, the Isaacs Court found that although John Doe’s behavior was grossly negligent, it did not rise to a level of being so willful or wanton as to show a conscious disregard for the rights of others. Id.
Since 2003, the Isaacs ruling has explicitly prevented Plaintiffs from seeking common law punitive damages against hit-and-run drivers.
Enter House Bill No. 1479. On April 8, 2026, Governor Abigail Spanberger signed this bipartisan bill, sponsored by Delegate Will P. Davis (R–Franklin and Roanoke) and Delegate Rae C. Cousins (D–Richmond), into law and it was entered into the Acts of Assembly on the same day. That law, which will be a new, stand-alone statute codified as Virginia Code § 8.01-44.5:1 reads, in its entirety: “In any action for personal injury or death arising from conduct that constitutes a felony violation of § 46.2-894, punitive damages may be awarded to the plaintiff.
By referencing § 46.2-894, lawyers must review that statute to fully understand § 8.01-44.5:1. It states:
The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in §46.2-888 (code section regarding stopping on highways), and report his name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident, including taking such injured person to a physician, surgeon, or hospital if it is apparent that medical treatment is necessary or is requested by the injured person.
Where, because of injuries sustained in the accident, the driver is prevented from complying with the foregoing provisions of this section, the river shall, as soon as reasonably possible, make the required report to the State Police or local law-enforcement agency and make a reasonable effort to locate the person struck, or the driver or some other occupant of the vehicle collided with, or the custodian of the damaged property, and report to such person or persons his name, address, driver’s license number, and vehicle registration number.
Any person convicted of a violation of this section is guilty of (i) a Class 5 felony if the accident results in injury to or the death of any person, or if the accident results in more than $1000 of damage to property or (ii) a Class 1 misdemeanor if the accident results in damage of $1000 or less to property.
This statute prescribes what a driver must do following a collision involving injuries, death or damage to property, effectively punishing those who flee the scene of a collision. It specifically says that any person convicted of violating this section shall be guilty of a Class 5 felony if the accident resulted in an injury, death, or property damage that was over $1,000. Most importantly for analysis of personal injury cases, this low threshold is met for all personal injury cases.
Returning back to § 8.01-44.5:1, note that only felony hit-and-run conduct, as outlined in § 46.2- 894, is required under to seek punitive damages under § 8.01-44.5:1, so this punitive vehicle is not dependent on a felony conviction. In a personal injury case, in which by definition the Plaintiff was injured, this conduct rises to the level of warranting punitive damages under § 8.01-44.5:1 if the Defendant flees the scene of the collision.
Moreover, the use of the word “any” is very important in the statute because it allows for punitive damages even in cases in which John Doe is never identified. The purpose of common law punitive damages is three-fold: to punish the defendant, to protect the public, and to serve “as a warning and example to deter [the defendant] and others from committing like offenses.” Baker v. Marcus, 201 Va. 905, 909, 114 S.E.2d 617, 620 (1960). Presumably, only a part of those considerations would apply to having punitive damages in a John Doe case. However, because this is a statutory right that has explicit text, the General Assembly clearly intends to allow the Plaintiff to seek punitive damages even if the felonious hit-and-run driver is unknown. Cf. Va. Code § 8.01-25 (“punitive damages shall not be awarded after the death of the party liable for the injury”).
Another important word in the new statute is “may,” as in “punitive damages may be awarded to the plaintiff.” So even if a personal injury plaintiff can satisfy the prerequisites for the statute to apply, an award of punitive damages remains discretionary. See Wal-Mart Stores East, LP v. State Corp. Comm’n, 299 Va. 57, 70 & n.5, 844 S.E.2d 676, 682 & n.5 (2020) (statutory use of the word “may” connotes something permissive and discretionary).
And in this regard, it is equally important to recognize what the new statute does not say. Similar to the new statute, the existing statute for punitive damages provides:
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 punitive damages 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.
Va. Code § 8.01-44.5 (emphasis added).
Unlike the new statute, however, the existing statute goes further, providing that “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) the defendant’s BAC was at least 0.15; (ii) the defendant knew or should have known that his ability to operate a vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff. Va. Code § 8.01-44.5 (emphasis added).
So although initially couched in permissive terms (“may”), when the requisites of § 8.01-44.5 are met, punitive damages become mandatory (“shall”). Being that the mandatory words “shall” or “must” are both absent from the text of the new statute, even proof of felonious hit-and-run conduct does not guarantee an award of punitive damages under § 8.01-44.5:1. See City of Richmond v. Va. Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016) (“[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.”).
Back to Nancy Smith. Can she seek punitive damages under § 8.01-44.5:1 against Frank Jones? Unfortunately, no. This new law does not take effect until July 1, 2026. “Unless a contrary legislative intent is manifest,” statutes are generally considered to apply prospectively rather than retroactively. McCarthy v. Commonwealth, 73 Va. App. 630, 647, 864 S.E.2d 577, 585 (2021). This presumption can be overcome if the General Assembly uses explicitly retroactive legislation or if the law only affects procedure and not substantive rights. Montgomery v. Commonwealth, 75 Va. App. 182, 190, 875 S.E.2d 101, 105 (2022). Here, there is no retroactive language. Additionally, this bill affects her right to file a punitive damage claim against Frank Jones, so it affects her substantive rights. See Finney v. Hearn, 35 Va. Cir. 89 (Fairfax 1994) (expressly holding that Code § 8.01-44.5 was substantive and thus not entitled to retroactive effect).
Although Nancy Jones’s claim for punitive damages against Frank Jones was unsuccessful, after July 1, 2026, lawyers who represent victims of hit-and-run collisions will have a powerful new tool in their arsenal when seeking justice for their clients.
The entire Marks & Harrison Summer 2026 Points of Law newsletter is available for download.
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