
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Fred W. Reynolds, Administrator of the Estate of Vivian R. Bixler, deceased v. City of Richmond and Glen K. Lewis
    September 18, 1996
    Case No. LB-1129-1
   By Judge Melvin R. Hughes, Jr.

There remains for decision from Monday’s hearing defendant’s objection to plaintiff’s prayer for punitive damage award in the amount of $500,000.00. Defendant objects on the ground that Va. Code § 8.01-38.1 limits the recovery of such damages to no more than $350,000. Plaintiff responds saying that § 8.01-38.1 does not prohibit a plaintiff requesting an amount in excess of what the statute allows but only provides the total amount awarded cannot exceed $350,000.

I mentioned that when similar questions are raised in malpractice cases, in those instances the custom has been to allow the excess demand and reduce the judgment to the cap amount should the jury award be in excess. This procedure is followed because this approach is believed to be in line with the court’s reasoning in Etheridge v. Medical Center Hosp., 237 Va. 87 (1989), where the court placed heavy reliance on a plaintiff’s right to have a jury assess damages. That reasoning does not apply to a punitive damage cap issue because the jury trial guarantee secures no greater right than those that existed at common law. Id. at p. 96.

Defendant’s motion to reduce the ad damnum as to punitive damages to $350,000 is granted.  