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Punitive damages claim survives demurrers

A claim for punitive damages in a wrongful termination case is allowed to proceed after surviving demurrers from the defendant employer.

An additional claim by the plaintiff for attorney fees was not allowed to proceed after the defendant’s demurrer was sustained.

The decision on three demurrers filed by the defendant employer came in an Oct. 4 letter opinion by Fairfax County Circuit Judge Richard E. Gardiner. The name of the case is Frank v. True Color Painters LLC (021-8-120).


Plaintiff Taylor Frank filed a complaint against his former employer, True Color Painters, or TCP, over alleged wrongful termination. In his first amended complaint, Frank claimed that, while he was working at TCP, they “withheld wages properly owing and due to Mr. Frank.”

Frank further alleged that his first paycheck was “withheld for several days,” after which he sent a text message to True Color Painters stating that they need “to make sure people are getting paid on time” and that he has heard a lot of people were becoming upset about it.

Shortly thereafter, “TCP responded to this text message by terminating Mr. Frank’s employment,” according to the complaint.

The complaint also alleged that, upon Frank’s termination, True Color Painters “did not provide Mr. Frank with payment of any accrued vacation or other ancillary economic benefits such as bonuses and incentive compensation.”

“Mr. Frank’s termination was a direct result of his complaints regarding TCP’s failure to provide compensation as required by law,” the complaint states.

In response to the complaint, TCP filed a trio of demurrers on the grounds that: a Bowman claim was not stated, punitive damages were not properly alleged and attorney fees were not recoverable. These demurrers were the focus of the Oct. 4 opinion from Gardiner.


According to the opinion, Frank’s complaint “purports to be an action pursuant to Bowman v. State Bank of Keysville, a 1985 case which established that where a right is ‘conferred by statute’ and ‘is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control’” said employee.

In the demurrer, TCP claimed Frank did not state an action pursuant to Bowman because Frank was “executive personnel” and thus exempt from protections in Virginia Code § 40.1-29. That section of code, which includes Virginia’s laws on withholding wages and time and medium of payment, states that “all employers… shall establish regular pay periods and rates of pay for employees except executive personnel.”

Frank argued that he was due the protections afforded by Virginia law, as he was not an executive at True Color Painters. Frank cited Virginia Code § 40.1-29 (C), which states “no employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes.”

Ultimately, Gardiner sided with Frank. The court agreed that he had stated a Bowman claim and overruled the defendant’s demurrer.

On the issue of punitive damages, TCP argued that Frank’s complaint “does not allege any ‘facts that would support his demand for punitive damages.’”

The court ruled in favor of Frank, stating that “in the court’s view, the allegation of ‘termination in retaliation for reporting’ violations… sufficiently alleges that Defendant’s behavior was willful, malicious, oppressive, wanton, or reckless.” Thus, Gardiner overruled TCP’s demurrer and allowed the punitive damages claim to proceed.

Frank also sought to recover attorneys’ fees, citing precedent set in the 1936 case Kemp v. Miller. The Kemp court held that the “rule in Virginia as to the recovery of counsel fees as damages is well established,” with the exception of cases where the injury is wanton or malicious and exemplary damages are recoverable.

Kemp is also an example of a case where damages were sought for attorneys’ fees from previous litigation.

Gardiner ruled in the letter opinion that since Frank was “not seeking attorney fees as damages for previous litigation, but as attorney fees for the instant case, Kemp does not apply.”

In making this ruling, Gardiner granted TCP’s demurrer as to attorneys’ fees.

Goodbye to ‘Bowman’?

Fairfax attorney Zachary A. Kitts from K&G Law Group represented True Color Painters. Kitts said his client was “disappointed” with the ruling.

“While there is a split of authority, we believe the cases finding that Virginia Code § 40.1-29 does not support a Bowman claim are better reasoned, but that is an argument for appeal,” Kitts said via email.

Kitts continued, “What’s most interesting about this case is that it could well be one of the very last Bowman cases we see in the commonwealth, because we now have Virginia Code § 40.1-27.3, which essentially codifies the Bowman tort.”

Effective in 2020, Virginia Code § 40.1-27.3 is entitled “retaliatory action against employee prohibited.”

The code states that an employer can not penalize, discharge or threaten an employee because that employee reported a violation of federal or state law.

Falls Church attorney Dirk McClanahan from McClanahan Powers represented Frank. McClanahan did not respond to a request for comment by press time.