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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
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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 part2:
2 In July  2002, the General Assembly amended clause  (ii) of
the second paragraph of Code  §  8.01-44.5 concerning a
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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
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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.
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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
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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
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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.
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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
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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);
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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
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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
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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
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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.
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