Can I Get Punitive Damages After a Drunk Driving Accident in Missouri?

Yes. Missouri allows punitive damages on clear and convincing evidence that the defendant acted with “a deliberate and flagrant disregard for the safety of others” (RSMo 510.261). Intoxication plus erratic driving has supported such awards. The award is capped at the greater of $500,000 or five times the net judgment, unless the driver has a related felony conviction (RSMo 510.265).

01What Does Missouri Law Require for Punitive Damages?

You must prove, by clear and convincing evidence, that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others” (RSMo 510.261.1). A drunk driver rarely intends to hit anyone, so most claims rest on the second half of that sentence.

Clear and convincing is a higher standard than the one that governs the rest of your case. Your compensatory claim asks whether the driver’s negligence more likely than not caused your injuries. The punitive claim asks the jury to be firmly persuaded that the driver’s conduct was far worse than careless.

The legislature wrote this standard into the statute in 2020. It governs cases filed on or after August 28, 2020 (RSMo 510.262). Two other rules in the same section matter here. Punitive damages are available only if the jury awards more than nominal damages. And the amount cannot be based, in whole or in part, on harm to people who are not parties to your case (RSMo 510.261.2 and .6).

02Is Driving Drunk Enough on Its Own?

Usually not by itself. Missouri courts have looked for intoxication plus driving that shows the driver knew, or had reason to know, that someone was likely to get hurt.

The leading case came out of south St. Louis County. In 1986 a driver ran the red light at Kennerly Road and Tesson Ferry Road at 50 to 55 miles per hour and struck the plaintiffs’ car. He did not stop. A witness followed him through four more red lights, watched him weave through traffic and hit another vehicle, and saw him slump over the wheel. The trial judge excluded the evidence of intoxication and refused to let the jury consider punitive damages. The Missouri Supreme Court reversed. It held that erratic driving “exacerbated by intoxication” was enough to submit punitive damages to the jury, and wrote that the purpose of punitive damages “to deter reckless conduct could hardly be better served than in alcohol-related driving cases” (Stojkovic v. Weller, 802 S.W.2d 152, Mo. banc 1991).

Five years later the same court affirmed a punitive award against an intoxicated driver who had run another car off the road moments before he crossed the center line and caused a fatal crash. The court rejected his argument that the award rested only on intoxication. The erratic driving, “in combination with” his intoxication, was sufficient (Call v. Heard, 925 S.W.2d 840, Mo. banc 1996).

Missouri courts look for intoxication plus something more: running lights, crossing the center line, extreme speed, leaving the scene.

Both cases applied the older common-law test, which asked whether the driver showed “complete indifference to or conscious disregard for the safety of others.” The 2020 statute uses different words, “deliberate and flagrant disregard,” and the defense will argue they demand more. The proof that carried Stojkovic and Call is still the proof that matters: how much the driver drank, how the driver drove, what the driver did after impact and what the driver knew about the risk.

03When Can the Claim Be Added to My Lawsuit?

Only later, and only with the judge’s permission. Missouri bars a punitive damages claim from any initial pleading (RSMo 510.261.5).

• Your lawyer files a written motion for leave, supported by affidavits, exhibits or discovery materials that establish a reasonable basis for punitive damages.
• The motion must be filed no later than 120 days before the final pretrial conference, or 120 days before trial if no conference is set.
• The defense may respond with its own evidence. The judge grants leave if a jury could reasonably conclude, by clear and convincing evidence, that the standard is met.
• The judge must rule within 45 days after the hearing, or after the response if there is no hearing.
• Discovery into the defendant’s assets is allowed only after leave is granted (RSMo 510.263.8).

That sequence means the evidence has to be gathered early. The breath or blood result, the officer’s observations, bar receipts, video and witness statements must be in hand well before the 120-day line. In a wrongful death case the same procedure applies to a claim for aggravating circumstances, because the statute defines a punitive damage award to include “an award for aggravating circumstances” (RSMo 510.261.9).

If any party asks, the trial is split in two. The jury first decides fault, compensatory damages and whether the driver is liable for punitive damages. Evidence of the driver’s finances generally stays out of that first stage. If the jury finds punitive liability, it then hears evidence of the driver’s net worth and sets the amount (RSMo 510.263).

04How Much Can a Jury Award?

Missouri caps punitive damages against any defendant at the greater of $500,000 or five times the net amount of the judgment awarded to the plaintiff against that defendant (RSMo 510.265). The cap is applied defendant by defendant. When more than one defendant owes punitive damages, each is liable only for its own percentage, as the jury assigns fault (RSMo 537.067.2). The trial judge can also reduce or increase an award through remittitur or additur (RSMo 510.263.6).

The cap is not beyond challenge. The Missouri Supreme Court held it unconstitutional as applied to a common-law fraud claim, because the right to a jury trial in 1820 included the jury’s power to set punitive damages (Lewellen v. Franklin, 441 S.W.3d 136, Mo. banc 2014). Whether that reasoning reaches a negligence claim against a drunk driver is an argument to raise with your lawyer. In many drunk driving cases, the felony exception makes the argument unnecessary.

05How Can a Felony DWI Remove the Cap?

The cap does not apply if “the defendant pleads guilty to or is convicted of a felony arising out of the acts or omissions pled by the plaintiff” (RSMo 510.265.1). That puts the criminal charge at the center of the civil case.

Under RSMo 577.010, a first DWI with no injury is a class B misdemeanor. The offense becomes a felony in two main ways:

• Injury. If the intoxicated driver acts with criminal negligence to cause physical injury, it is a class D felony. Serious physical injury makes it a class C felony. Causing a death makes it a class B felony or higher.
• History. A persistent offender commits a class E felony, and aggravated, chronic and habitual offenders face higher classes, even when no one is hurt.

The exception turns on a felony plea or conviction, not on the felony charge. If the case is pleaded down to a misdemeanor, the cap stays in place. The prosecutor decides how to resolve the criminal case, and that decision can change what a civil jury’s award is worth. Staying in contact with the prosecutor’s office is part of protecting the civil claim.

06Does the State Take Part of a Punitive Award?

Yes, if the award becomes a final judgment. The State of Missouri has a lien for 50 percent of a punitive damage final judgment, which attaches after attorney’s fees and expenses are deducted. The money goes to the Tort Victims’ Compensation Fund, which helps injured people who cannot collect their own judgments (RSMo 537.675).

The party who receives a punitive judgment must notify the Missouri Attorney General. The state’s lien cannot be paid out of the recovery until the attorney’s fees and expenses are paid. And cases resolved by arbitration, mediation or settlement before there is a punitive damage final judgment are exempt from the lien (RSMo 537.675.3). That exemption is one reason the timing of a settlement matters.

07Will the Drunk Driver’s Insurance Pay Punitive Damages?

Generally, no. A St. Louis appellate court held in 1964 that an auto liability policy promising to pay damages “because of bodily injury” does not cover punitive damages, and said that allowing a motorist to insure against them “would be contrary to public policy” (Crull v. Gleb, 382 S.W.2d 17, Mo. App. 1964). A later decision followed the policy-language holding and noted that the public-policy statement may not have been necessary to the result (Schnuck Markets, Inc. v. Transamerica Insurance Co., 652 S.W.2d 206, Mo. App. 1983).

Many policies also exclude punitive damages in so many words. The practical result is that a punitive award is usually collected from the driver personally. The liability policy, your uninsured or underinsured coverage and any other policy that applies pay the compensatory damages. The punitive claim adds pressure, accountability and, where the driver or another defendant has assets, real money.

08Can the Bar Be Held Liable for Punitive Damages Too?

It can be sued, but the bar is a separate defendant with separate proof. Missouri allows a claim only against a business licensed to sell liquor by the drink for consumption on the premises, and only on clear and convincing evidence that it knowingly served a visibly intoxicated person or served someone it knew or should have known was under 21 (RSMo 537.053). Social hosts are outside the statute.

A punitive claim against the bar must meet RSMo 510.261 on its own. When the conduct is a bartender’s, the business owes punitive damages only if a manager authorized or ratified it, a managerial employee did it, or the business was reckless in hiring or keeping an unfit employee (RSMo 510.261.3). The bar’s share of any punitive award follows its own percentage of fault (RSMo 537.067.2).

09How Does the Criminal Case Affect the Civil Case?

A guilty plea is powerful evidence. The Missouri Supreme Court has treated a driver’s guilty plea to a charge “arising out of the very occurrence” as an admission against interest in the later civil case (Franklin v. Friedrich, 470 S.W.2d 474, Mo. 1971). In Call v. Heard, the evidence included the driver’s guilty plea to the criminal charges from the crash.

A conviction is not required for punitive damages. The civil standard is clear and convincing evidence, not proof beyond a reasonable doubt. A felony plea or conviction matters for a different reason: it removes the cap.

Restitution is not a substitute. A criminal court may order a convicted driver to pay restitution for the victim’s losses due to the offense (RSMo 559.105). Restitution repays losses. Punitive damages punish. The two do different work, and a restitution order does not end your right to seek either compensatory or punitive damages in civil court.

10Does My Own Fault Reduce Punitive Damages?

It reduces your compensatory damages, not your punitive damages. Missouri follows pure comparative fault, so a jury that finds you partly at fault reduces your compensatory award by your percentage (Gustafson v. Benda, 661 S.W.2d 11, Mo. banc 1983). A passenger who rode with a driver known to be drinking, or a driver who was speeding when the drunk driver ran the light, may face that argument.

Punitive damages are treated differently. The Missouri Supreme Court refused to reduce a punitive award by the plaintiff’s share of fault, because punitive damages exist to discourage the defendant’s conduct, and reducing them “would not serve the purpose of the punitive damage award” (Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, Mo. banc 1990).

11What Deadlines Apply?

Most Missouri injury lawsuits must be filed within five years of the crash (RSMo 516.120). Wrongful death claims must be filed within three years (RSMo 537.100). Inside the lawsuit, the motion to add punitive damages has its own 120-day cutoff before the final pretrial conference or trial (RSMo 510.261.5).

The evidence that proves punitive damages, from bar video to the driver’s statements at the scene, disappears long before any of those deadlines.

Our drunk driving accidents page at /car-accidents/drunk-driving-accidents/ covers the rest of these claims, including getting the police file, the dram shop law and insurance when the driver has little or none.

If a drunk driver hurt you or killed someone you love, call The Injury Counsel at (314) 727-7220 for a free, confidential consultation. We investigate the crash, preserve the evidence and identify every policy and every defendant that may answer for it.