Injured By a Drunk Driver Overview
Drunk driving is among the most common causes of vehicle collisions and injury. The majority of drunk driving accidents are those in which two automobiles collide. Alcohol-related incidents can also involve motorcyclists, tractor-trailer drivers, boaters, pedestrians, and bicyclists.
Although a drunk driving collision can injure almost any part of your body, the following areas are particularly vulnurable:
- spinal cord
- legs and knees
Drunk Driving: Criminal Cases vs. Civil “Damages”
A vehicle accident, whether in a car or big-rig, caused by an impaired driver is different than any other type of vehicle accident because drunk driving is against the law. First, there is almost always a criminal prosecution against the DUI driver. The penalties for a criminal DUI will include a jail sentence, loss of drivers privilege, high risk insurance, and some form of a DUI class. A criminal defendant is also ordered usually to pay some amount of monetary restitution to the victim. However, criminal restitution is usually very minimal since it is only for out of pocket expenses and not "pain and suffering". So, if you are injured in a car accident caused by a drunk driver, you have the right to pursue complete financial compensation for your injuries from the driver through the civil system. Most often these two cases will proceed side-by-side.
A civil claim is the only way you can recover full financial compensation from the DUI driver. This type of compensation is called “damages,” and it can take several forms.
“Special damages” are meant to reimburse you for such out-of-pocket expenses as medical expenses, lost income, and other economic losses. Special damages are generally easy to identify and establish through the use of medical records, medical bills, and employment records.
“General damages” are intended to compensate you for the physical and mental pain and suffering, and other more subjective kinds of effects of the accident and your injuries. These types of damages are difficult to prove and insurance companies will typically "low ball" the value of general damages.
"Punitive Damages" under certain circumstances you may also be entitled to “punitive” damages. The purpose of punitive damages is to "punish" the drunk driver for particularly reckless behavior and to discourage similar behavior in the future -- to “make an example” of the driver. Examples may be prior convictions for drunk driving, high blood alcohol, or other particular egregious facts in the accident such as an accident involving children.
Do not rely on insurance companies to do the right thing...
It is important to remember that insurance adjusters will contact the injured party as soon as possible after an accident. They will present themselves as a friend of the injured person or family. However, their ultimate goal is to settle the case for the least amount possible, before the injured party learns of their rights by speaking to an attorney. Their practice is to always tape record these phone calls and to ask questions that might seem innocuous at first, but are usually one-sided to the benefit of the insurance company. Unfortunately, for some insurance companies their approach is "Delay, Deny and Defend" legitimate claims to maximize their profits. Hence, it is almost always a good idea to speak with an attorney before agreeing to be interviewed or providing any medical and private information. We do not charge for initial consultations and are happy to chat and answer any questions you may have.
Damages that are recoverable in an injury accident caused by a drunk driver.
An injured party may recover damages for past and future medical expenses; past and future wage loss; compensation for loss of earning capacity (in cases of permanent injuries and impairment); compensation for permanent injuries or impairment that result from the accident; and past and future pain and suffering. If the defendant's conduct is extreme in causing the accident (for example, driving drunk with a high blood alcohol or prior drunk driving convictions), punitive damages may sometimes be awarded. Punitive damages are a dollar amount intended to punish the defendant for his conduct and are not related to actual expenses.
Uninsured and Underinsured Drunk Drivers
Unfortunately, it is not uncommon that a drunk driver has either no liability insurance or only minimal coverage. In California, minimum requirements for liability coverage are only $15,000/ $30,000 per accident, an amount far too low to cover even the most minor injury. In these situations, an experienced injury lawyer can help determine if there are other responsible individuals or avenues of recovery.
For example, if the drunk driver does not have sufficient insurance, you may also be able to bring a claim against your own insurance company for compensation. Many automobile insurance policies include coverage that provides financial compensation to you in the event the driver who caused the accident has insufficient insurance coverage. This type of insurance coverage is called Uninsured motorist or Under insured motorist coverage (UIM/ UM). If your car insurance policy includes this type of coverage, you should discuss with an attorney the proper procedure for making this type of claim. It is always a good idea to periodically review your car insurance policy with your insurance agent to make sure you have sufficient UIM/UM coverage.
When Should a DUI Car Accident Case Be Settled ?
This depends on how serious your injuries are. Generally, you should not settle your injury claim until you have received a thorough medical evaluation and have completed treatment. It is not uncommon that there are complications from the initial accident that will require additional diagnosis and treatment. Unfortunately, depending upon the type of injury, this may be a lengthy process. However, if injuries aren’t too serious, and the medical bills are relatively small, then the insurance company will want to settle the case fairly quickly. In these types of small cases, the insurer wants to get it over with, and doesn’t want to spend additional money in litigation.
But again, if the injury is more serious it generally requires filing a lawsuit before the insurance company will settle the case for its fair settlement value. Once the case has gone into litigation by filing suit, serious settlement discussions will almost never begin until the defense attorney has completed all of the pretrial investigation. If the client’s damages are very serious, such that the case might be worth hundreds of thousands of dollars, defense attorneys are generally not willing to talk seriously about any possible settlement until the eve of trial.
How are Settlement Discussions Conducted in a DUI Accident Case?
In a typical injury case involving a drunk driver, settlement discussions are often very informal in the beginning. The DUI driver's insurance company usually has been informed by their client that they were involved in an accident while under the influence. Both sides want to gain as much information as possible at this early stage. This includes obtaining a copy of the police arrest report, blood alcohol test results, and the medical records of the injured individual if available.
In many DUI accident cases, once the injuries have been verified the insurance company usually requests that a demand we're dollar amount to settle the case be presented. However, it is always a good practice to verify the amount of insurance coverage and whether there are any additional insurance policies that may cover the accident before making any such demand.
It is not infrequent that there is insufficient insurance to cover the full extent of damages. In those situations, the injured party may be able to make a demand for compensation under their own insurance policy. In which case, discussions and coordination should occur with the injured party's own insurance company.
Once the parties come to an agreement the actual settlement is relatively straightforward. It is important to remember, that medical or healthcare providers are entitled to be reimbursed from any third party settlement. This step requires working with medical health care lien holders before the final settlement can occur. An experienced injury attorney can expedite this process and sometimes negotiate a reduced lien to maximize recovery for the injured party.
How Long Can Settlement Negotiations Last?
Settlement negotiations can go on for some time. Generally, the more serious the injury, the longer it may take as insurance companies are reluctant to settle large claims quickly. In cases where the seriousness of the injuries clearly exceed the limits of the insurance policy, the insurance company will offer to settle the case "for limits" almost immediately.
How can deaths and injuries from impaired driving be prevented?
Effective measures include:
- Actively enforcing existing 0.08% BAC laws, minimum legal drinking age laws, and zero tolerance laws for drivers younger than 21 years old in all states.
- Requiring ignition interlocks for all offenders, including first-time offenders.
- Using sobriety checkpoints
- Putting health promotion efforts into practice that influence economic, organizational, policy, and school/community action.
- Using community-based approaches to alcohol control and DWI prevention.
- Requiring mandatory substance abuse assessment and treatment, if needed, for DWI offenders.
- Raising the unit price of alcohol by increasing taxes.
Areas for continued research:
- Reducing the illegal BAC threshold to 0.05%.
- Mandatory blood alcohol testing when traffic crashes result in injury.
- Does marijuana impair driving? How and at what level?
- Does marijuana use increase the risk of motor vehicle crashes?
What safety steps can individuals take?
Whenever your social plans involve alcohol and/or drugs, make plans so that you don’t have to drive while impaired. For example:
- Before drinking, designate a non-drinking driver when with a group.
- Don’t let your friends drive impaired.
- If you have been drinking or using drugs, get a ride home or call a taxi.
- If you’re hosting a party where alcohol will be served, remind your guests to plan ahead and designate their sober driver; offer alcohol-free beverages, and make sure all guests leave with a sober driver.