For truckers, slang is part of the daily jargon. Whether an “alligator” (piece of trash in the roadway), “chicken coup” (weigh station) or “Bambi” (a deer near the roadway), truckers have their own terms for just about everything related to driving. Ask one about a “dream weaver” and you may see them roll their eyes and shake their heads.

A “dream weaver” is a term for an impaired driver, usually evident by weaving between lanes while driving due to being sleepy or impaired. But don’t let the magical sounding term fool you, there are few things more serious than someone falling asleep at the wheel.

That is why the Federal Motor Carrier Safety Administration (“FMSCA”) mandates hours of service (“HOS”) requirements which would be just as familiar to a professional trucker as any of the above terms. Whether the 14-Hour Rule requiring that a trucker must not drive more than 11 hours total within 14 hours of coming on duty or the 70-Hour Rule which states that a driver cannot exceed 70-hours driving or on duty over an 8-day period, these hours-of-service requirements are mandatory for most commercial drivers.

These rules are in place for two reasons: first, to protect truckers from businesses who may wish to push their drivers beyond reasonable shifts; and, second, to protect the roadways from overtired drivers. Beyond the obvious danger caused by sleepy drivers, business owners and truckers alike should understand that they could face stiff financial penalties if they cause an accident due to violating the HOS rules, in the form of punitive damages.

Va. Code § 8.01-52(5) states that punitive damages may be awarded when a defendant’s actions constitute "willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others." "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." Woods, 574 S.E.2d at 268. The maximum amount allowed for punitive damages in such cases is $350,000 and is awarded by the trier of fact. Va. Code § 8.01-38.1.

The Supreme Court of Virginia has expressed a “general reluctance to allow punitive damages in run-of-the-mill personal injury cases." Booth v. Robertson, 236 Va. 269, 374 S.E.2d 1, 3 (Va. 1988). For example, In Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340, 341-42 (Va. 1993), an intoxicated man driving a pickup truck "very fast" rear-ended another vehicle after not attempting to stop, causing injuries to a passenger in the vehicle he struck. Following discovery, the trial court granted the defendant's motion to strike the plaintiff's claim for punitive damages. Id. at 341. The Supreme Court of Virginia affirmed, holding that the facts were insufficient to support a finding of the sort of wanton negligence necessary for an award of punitive damages. Id. at 342.

Several other Virginia cases have likewise rejected punitive damages claims arising out of car crashes. See Harris v. Harman, 253 Va. 336, 486 S.E.2d 99, 100 (Va. 1997) (concluding as a matter of law that the defendant's conduct did not rise to the level of willful and wanton negligence despite the fact that the defendant had been tailgating the plaintiff's vehicle while traveling 10 to 30 miles per hour over the applicable speed limit); Clohessy v. Weiler, 250 Va. 249, 462 S.E.2d 94, 96 (Va. 1995) (finding that the defendant had not acted willfully and wantonly even though she was speeding and driving without her headlights on and with a fogged windshield when she hit a pedestrian walking in the street); Hack v. Nester, 241 Va. 499, 404 S.E.2d 42, 45 (Va. 1990) (reversing jury award of punitive damages despite evidence that defendant was intoxicated, driving with a burned out headlight, and suffering from night blindness).

On the other hand, there are several cases where courts permitted claims for punitive damages, particularly when they involved professional drivers. For example, the defendant in Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615, 616-17 (Va. 1999), failed to activate his truck's hazard lights or to set up any flares or reflective triangles after a breakdown, despite having been trained to do so in such a situation. The trial court declined to strike the plaintiff's evidence regarding punitive damages, and the Supreme Court of Virginia affirmed, noting that the defendant "was a professional driver who had received specialized safety training warning against the very omissions he made prior to the accident." Id. at 619. The court went on to state that "[s]uch evidence that a defendant had prior knowledge or notice that his actions or omissions would likely cause injury to others is a significant factor in considering issues of willful and wanton negligence." Relying on Alfonso, the court in Stanley v. Star Transport, Inc., No. 1:10-CV-00010, 2010 U.S. Dist. LEXIS 90404, 2010 WL 3433774, at *1 (W.D. Va. Sept. 1, 2010), denied a motion to dismiss punitive damages claims where the plaintiff alleged that the defendant, a professional truck driver, drove "in a sleep-deprived condition at night over a snow- and ice-covered road at an excessive rate of speed, without a functioning collision avoidance system."

In Madison v. Acuna, 2012 U.S. Dist. LEXIS 176170, a case out of the Western District of Virginia, the decedent was a passenger in a pickup truck traveling on Route 42 in Rockbridge County, VA. It was raining and the road conditions were slippery and wet. Acuna was driving in the course and scope of his employment for a company called “Coastal” and fell asleep at the wheel after which he crossed a double yellow line striking a pickup truck whose driver suffered serious injuries and eventually died. Acuna had prior citations for: 1) reckless driving and failure to maintain control, resulting in an accident; 2) violating the 14-hour rule for professional drivers; and 3) speeding. None of these, however, were from the same day as the accident.

Both the driver and the trucking company filed motions to dismiss the punitive damages. The Court ruled that plaintiff did not make out a claim for punitive damages against Coastal. It held that, even if Coastal was aware of Acuna’s driving record, its knowledge of his prior citations was not sufficient to demonstrate that the company acted willfully, wantonly, or recklessly.

However, the Court allowed the punitive damages claim against Acuna to go forward, holding that Acuna’s prior citations for violating the 14-hour rule, which is intended to prevent commercial driver’s from operating in sleep-deprived state, provided him with sufficient notice of the dangers of operating a truck in that state. Thus, a jury could determine that his decision to continue driving while tired enough to fall asleep showed a conscious disregard for the safety of others.

The Madison case is a tough lesson but one that should be learned before it is too late. Either comply with the HOS requirements or risk a dream weaving into a nightmare. If you would like a legal consultation or assistance to ensure that your business is prepared to comply with the Hours of Service requirements, please contact Mo Sherman (msherman@setlifflaw.com) at 804-377-1275 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.