PRESENT: All the Justices

JULIA CAIN, ET AL.
                                              OPINION BY
v.   Record No. 141105                  JUSTICE CLEO E. POWELL
                                             JUNE 4, 2015
JOE LEE

             FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                      Charles S. Sharp, Judge

      Julia Cain and her daughters Raven and Reannah Cain

(collectively, the “Cains”) appeal the trial court’s decision to

give a jury instruction that they contend was an incorrect

statement of the law.    The Cains also appeal the decision of the

trial court excluding certain impeachment evidence as well as

evidence of the defendant’s post-accident conduct.

                            I.   BACKGROUND

      On May 31, 2008, the Cains were driving on Route 1.     As

their vehicle slowed due to traffic, a vehicle driven by Joe Lee

(“Lee”) rear-ended them.    The impact caused the Cains to collide

with the vehicle in front of them.

      A state trooper responding to the accident determined that

Lee was possibly intoxicated, due to Lee’s appearance and the

presence of a strong odor of alcohol.     The state trooper

administered a field sobriety test to Lee, which Lee failed.

Lee subsequently consented to a preliminary breath test (“PBT”),

which registered a blood alcohol content of .24.     Lee was then

arrested.
     When he was brought before a magistrate, Lee refused to

submit to a breath test.   As a result, Lee was charged with

unreasonably refusing to submit to a breath test, in violation

of Code § 18.2-268.3, and driving under the influence (“DUI”),

in violation of Code § 18.2-266.       Lee subsequently pled guilty

to the DUI.    As part of a plea bargain, the Commonwealth agreed

to nolle prosequi the unreasonable refusal charge.

     At the time of the accident, none of the Cains complained

of any injuries.    However, Raven later complained of neck pain

and general soreness.   She sought medical treatment, but was not

diagnosed with a particular medical condition.      Julia also

sought medical treatment related to the accident for unspecified

injuries.   Reannah saw a doctor for a regular wellness visit

after the accident, but was not treated for any specific medical

condition related to the accident.      The Cains were fully

recovered by August, 2008.

     On June 22, 2010, Raven filed a personal injury complaint

against Lee.   Reannah and Julia also filed claims against Lee on

June 30, 2010 and February 23, 2011, respectively.      Each

complaint sought $25,000 in compensatory damages and $350,000 in

punitive damages.   As Lee did not have insurance, each complaint

was also served on Farmers Insurance Exchange (“Farmers”),

Julia’s vehicle insurance carrier.      All three actions were

subsequently consolidated into a single action.


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     On December 10, 2010, Lee was arrested for a second DUI.

He was convicted on March 11, 2011 and sentenced to twelve

months in jail with nine months suspended.   As a condition of

his probation, Lee was required to participate in the Virginia

Alcohol Safety Action Program (“VASAP”) and to abstain from the

use of alcohol.    When reporting to the VASAP, Lee was required

to submit to a breath test.   After Lee failed four breath tests,

Lee was expelled from the VASAP and required to serve the

remainder of his suspended sentence.

     On April 15, 2013, the trial court heard Farmer’s motion in

limine seeking to prevent the Cains from presenting evidence of

Lee’s second DUI conviction and his expulsion from the VASAP.

Lee also moved to exclude the results of the field test

administered at the accident scene.    The trial court granted

Farmers’ motion in limine and took Lee’s motion under

advisement.

       At trial, Lee conceded he was liable and the case

proceeded for a determination of compensatory and punitive

damages.   As part of their case, the Cains called Lee as an

adverse witness.   Lee was asked if he was intoxicated at the

time the collision occurred, to which he responded, “I wouldn’t

say intoxicated.   I had been drinking.”   When he was asked again

if he was drunk at the time of the collision, Lee stated

“[t]hat’s what my paperwork says, .08 to -- yes.”   The Cains


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subsequently sought to impeach Lee’s testimony with the results

of the PBT.   Lee objected on the basis that the results of the

PBT were irrelevant because the Cains claim was based on Lee’s

unreasonable refusal, not the results of the PBT.   The trial

court denied the Cains request, ruling that, assuming the

testimony was relevant, the Cains could not impeach Lee based on

testimony they elicited, especially when they knew what Lee’s

testimony would be.

     At the conclusion of the evidence, Lee proffered a jury

instruction addressing the disfavored nature of punitive damages

(hereafter referred to as “Instruction 10”).   The Cains

objected, arguing that the instruction was not a correct

statement of the law.    The trial court approved a slightly

modified version of Instruction 10 which stated: “Punitive

damages are generally not favored and should be awarded only in

cases involving egregious conduct.”   Notably, during his closing

argument, Lee repeatedly emphasized that his conduct was not

egregious in nature and therefore punitive damages should not be

awarded.

     The jury subsequently awarded $5,000 in compensatory

damages and $500 in punitive damages to Raven Cain, $5,000 in

compensatory damages and $500 in punitive damages to Reannah

Cain, and $2,000 in compensatory damages and $500 in punitive

damages to Julia Cain.   The Cains appeal.


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                              II.   ANALYSIS

     On appeal, the Cains argue that the trial court erred in

giving Instruction 10.   They also take issue with the trial

court’s decision to exclude the results of the PBT and the

evidence of Lee’s post-accident DUI and expulsion from the VASAP

program.

                         A.    INSTRUCTION 10

     The Cains argue that the trial court erred in giving

Instruction 10.   According to the Cains, the instruction does

not properly state the law, improperly incorporates the

appellate standard of review, and is prejudicial.   We agree.

           When we review the content of jury
           instructions, our “‘sole
           responsibility . . . is to see that the law
           has been clearly stated and that the
           instructions cover all issues which the
           evidence fairly raises.’” Molina v.
           Commonwealth, 272 Va. 666, 671, 636 S.E.2d
           470, 473 (2006) (quoting Swisher v. Swisher,
           223 Va. 499, 503, 290 S.E.2d 856, 858
           (1982)). Whether the content of the
           instruction is an accurate statement of the
           relevant legal principles is a question of
           law that, like all questions of law, we
           review de novo. Alcoy v. Valley Nursing
           Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301,
           303 (2006).

Hancock-Underwood v. Knight, 277 Va. 127, 131, 670 S.E.2d 720,

722 (2009).

     Under Code § 8.01-44.5, when a defendant unreasonably

refuses to submit to a breath test, the finder of fact may award



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punitive damages if the evidence demonstrates: (1) the defendant

was intoxicated at the time of accident; (2) the defendant knew

or should have known “his ability to operate a motor vehicle was

impaired;” and (3) “the defendant’s intoxication was a proximate

cause of the injury to the plaintiff or death of the plaintiff’s

decedent.”   It is undisputed that all of these elements were met

in the present case.   Instruction 10, however, further requires

the Cains prove that Lee’s conduct was “egregious,” an

additional element not included in the statute.      Accordingly, it

was error for the trial court to give Instruction 10.

     Furthermore, this case provides yet another illustration of

the error addressed in our repeated admonishment about “the

danger of the indiscriminate use of language from appellate

opinions in a jury instruction.”       Blondel v. Hays, 241 Va. 467,

474, 403 S.E.2d 340, 344 (1991) (collecting cases).      We have

long recognized that the language used in our opinions may

include “argumentative language” about legal matters that is

inappropriate for consideration by the jury.       Abernathy v.

Emporia Manufacturing Co., 122 Va. 406, 413, 95 S.E. 418, 420

(1918).   Here, Instruction 10 was taken directly from our

holding in Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va.

421, 425, 611 S.E.2d 385, 387 (2005), and clearly includes an

example of “argumentative language” in the form of this Court’s

commentary about the favorability of punitive damages.      Such


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language does not assist the jury in any way; it does not

explain the law applicable to the case or aid the jury in

arriving at the proper verdict.    Rather, given that Code § 8.01-

44.5 expressly allows for punitive damages upon the showing

specified by the General Assembly, referring to them as

“generally not favored” serves only to confuse or mislead the

jury.

        Additionally, it is worth noting that the punitive damages

discussed in Xspedius Mgmt. Co. were common law punitive

damages; the punitive damages at issue in the present case are

statutory punitive damages.    Unlike common law punitive damages,

statutory punitive damages have been explicitly approved by the

General Assembly.    As such, we cannot say, as a matter of law,

that such punitive damages are “generally not favored.”    Indeed,

logic would dictate otherwise.

        Finding that the trial court erred in giving Instruction

10, we must next determine whether that error was harmless.     The

mere fact that the jury awarded punitive damages is not, in the

present case, sufficient evidence that the error was harmless.

“If an issue is erroneously submitted to a jury, we presume that

the jury decided the case upon that issue.”    Clohessy v. Weiler,

250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).    Here, Instruction

10 included unnecessary commentary on the propriety of punitive

damages and improperly required the jury to consider an element


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or legal standard that the Cains were not required to prove.       It

is not illogical that a jury would decrease the amount of

punitive damages because the trial court stated that such

damages were “generally not favored.”    Similarly, it is likely

that the jury factored the egregiousness of Lee’s conduct into

its determination of punitive damages.   As we cannot

definitively state whether Instruction 10 had an effect on the

jury’s award, we cannot say that the error was harmless.

     Accordingly, we will reverse the decision of the trial

court and remand the matter for further proceedings.    However,

we recognize that the issue of post-accident conduct raised by

the Cains will likely arise again upon remand. *   Therefore, we

will address that issue here.   See Harman v. Honeywell Int’l,

Inc., 288 Va. 84, 95-96, 758 S.E.2d 515, 522 (2014) (considering

evidentiary issues that would probably arise on remand where the

judgment was reversed on other grounds).

                    B.   POST-ACCIDENT CONDUCT

     The Cains argue that the trial court erred in refusing to

allow them to present evidence of Lee’s subsequent DUI


     *
       Unlike the trial court’s decision to exclude the post-
accident conduct evidence, we cannot say that the issue that led
to the exclusion of the impeachment evidence will likely arise
again on remand. Notably, the impeachment evidence was offered
due to Lee’s peculiar response to the question of whether he was
“drunk at the time of [the] collision.” As we cannot say that
Lee will give a similarly idiosyncratic answer on remand, we
need not address this issue here.

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conviction and dismissal from VASAP.   The Cains contend that

such evidence demonstrates that Lee is indifferent to the pain

and suffering he has caused, thereby making it competent,

relevant, and material evidence for determining punitive

damages.   We disagree.

     This Court has long recognized that a “trial court may

exclude evidence when, in the court’s sound discretion, its

prejudicial effect substantially exceeds its probative value.”

Boone v. Commonwealth, 285 Va. 597, 602, 740 S.E.2d 11, 13

(2013).    Here, the evidence the Cains sought to introduce has no

direct connection to the incident that precipitated the present

case. Indeed, Lee’s second DUI and dismissal from the VASAP

occurred during the pendency of this case.   We further note

that, even if offered for the limited purpose of determining the

amount of punitive damages, such evidence is “likely to inflame

the passion or instill a prejudice in the minds of the jury.”

Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores

Corp., 162 Va. 767, 781, 174 S.E. 848, 854 (1934).   Thus, the

post-accident evidence is ostensibly highly prejudicial.

     To determine whether the post-accident evidence has any

probative value, we first look to the language of the statute on

which the Cains base their case, Code § 8.01-44.5.   Where a

plaintiff seeks punitive damages based on a defendant’s

unreasonable refusal, Code § 8.01-44.5 provides that:


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          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 (a) when the
          incident causing the injury or death
          occurred the defendant was intoxicated,
          which may be established by evidence
          concerning the conduct or condition of the
          defendant; (b) at the time the defendant
          began drinking alcohol, or during the time
          he was drinking alcohol, he knew or should
          have known that his ability to operate a
          motor vehicle was impaired; and (c) the
          defendant's intoxication was a proximate
          cause of the injury to the plaintiff or
          death of the plaintiff's decedent.

     The specific temporal references in the statute are “when

the incident . . . occurred,” “at the time the defendant began

drinking alcohol, or during the time he was drinking alcohol,”

and “was a proximate cause.”   Thus, for the purpose of

determining whether to award punitive damages, Code § 8.01-44.5,

limits a finder of fact to considering evidence of the

defendant’s knowledge and physical condition leading up to and

directly related to the defendant’s act.   Nothing in the statute

allows a finder of fact to consider post-accident evidence that

is not directly related to the act in question.   As no unrelated

post-accident evidence can be considered in determining whether

to award punitive damages, such evidence, by definition, has no

probative value.   Accordingly, the trial court did not abuse its

discretion by excluding the post-accident evidence because, in




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an action under Code § 8.01-44.5, such evidence is entirely

prejudicial with no probative value.

                        III.   CONCLUSION

     For the foregoing reasons, the trial court’s evidentiary

rulings excluding the proffered evidence of Lee’s post-accident

conduct was not error, but we will reverse the judgment of the

trial court because of its error with regard to Instruction 10.

Accordingly, we will remand the matter to the trial court for

further proceedings not inconsistent with this opinion.

                                            Reversed and remanded.




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