Information
Striking Back: Remedies Available to Drunk Driving Victims and their Families
John D. Winer, San Francisco
A. Accidents Involving Drivers under the Influence of
Alcohol or Drugs.
i. The impairment factor.
Although the statistics are somewhat improving, a
horrendous amount of carnage in terms of the innocent loss of
life and serious injury is caused by drunk drivers.
In civil cases, when someone is suing as a result of the
death of a loved one or a serious injury to themselves caused
by a driver under the influence of alcohol or drugs, the key
factor is establishing that the driver who is being sued was
indeed “under the influence” to such a point that their
judgment, and thus their ability to drive, was significantly
impaired.
ii. Drunk driving and drugged driving cases treated
similarly under the law.
Although this section is entitled “drunk driving
accidents,” the same factors apply if a plaintiff can
establish that the defendant driver was under the influence of
prescription or street drugs that significantly impaired the
driver’s judgment.
iii. Alcohol impairment more within common
knowledge of jurors.
One of the differences between a case involving alcohol
versus a case involving drugs is that the impairment that
comes from alcohol is more within the common knowledge of
jurors if the case goes to trial while the impairment from
drugs is less known and will require more sophisticated expert
testimony.
iv. Jurors’ awareness that driving under the
influence of drugs or even taking street drugs
is a crime.
Another important factor is that in cases involving
alcohol and street drugs, there is a criminal factor involved
that, although not determinative of the result in a civil
case, will come into evidence or will be part of the jurors’
common knowledge. That is, in the case of alcohol, whether or
not the Vehicle Code section which states that it is
“unlawful” to drive with a blood alcohol level of over .08
comes into evidence, it is inconceivable that at least some of
the jurors, if not all, will know of that standard and will
know that the defendant driver violated the law. Also, in the
case of street drugs, although the jurors may not be able on
their own to assess the impairment of a driver under the
influence of street drugs, they know that the very taking of
those drugs is illegal and this knowledge in and of itself is
likely to affect the outcome of a case.
v. Prescription drug cases generally.
A case involving a defendant driver who was driving under
the influence of prescription drugs generally will not have
the same effect on jurors, all of whom, probably at one time
or another have driven under the influence of a prescription
drug with some type of warning on the bottle that said to “be
cautious around heavy machinery.”
In prescription drug cases, the jurors will probably not
automatically assume the worst about the driver’s misconduct
as they will in the alcohol and street drug cases. However,
it should also be obvious that someone could be far more
impaired driving after an injection of an opiate such as
Demerol or morphine or driving after taking a large amount of
a benzodiazepine such as Valium, Ativan or Xanax than they
would be driving under a moderate amount of liquor or even
street drugs.
vi. Key factors in proving impairment in
prescription drug cases.
The key to proving severe impairment in a prescription
drug case will probably be:
► severely erratic behavior of the driver at the
time of the accident.
► expert testimony on the manner in which the
particular drug or combination of drugs effects
the brain and causes impairment (see Expert
Witness section below).
► whether or not the driver was following doctor’s
orders in terms of the amount of the drug
ingested (although this evidence may be
difficult to obtain because of the
doctor/patient privilege).
► whether or not the driver followed doctor’s
orders in terms of a clear directive not to
drive while taking the medication (again, this
evidence may be difficult to obtain because of
the physician/patient relationship).
► warning labels that came with or on the
prescription bottle.
For simplicity, the remainder of this section of this web
site will focus on drunk driving cases, although the same
basic principles apply for driving under the influence of drug
cases. Where there are special differences regarding drugs
versus alcohol, those issues will be dealt with in the
appropriate sections below.
B. Who Can Sue in a Drunk Driving Accident Case.
i. Adults.
Any person who is injured by the negligence of a drunk
driver or close family survivors of someone killed by a drunk
driver can bring a lawsuit against the drunk driver. This
includes any of the following categories of people injured in
collisions involving a drunk driver:
► driver of another vehicle.
► passengers in another vehicle.
► passengers in the drunk driver’s own vehicle.
► pedestrians.
► close relatives who were at the scene of the
collision when it occurred and were aware that
the collision caused their close relative an
injury and as a result, this “witness” suffered
severe emotional distress (see below). The
physical injury can be to bicyclists,
motorcyclists, skateboarders and “skooterists”
and people driving or riding as a passenger in
golf carts.
The spouse of the injured plaintiff can also bring a
lawsuit for loss of consortium damages; that is, damages for
the loss of society, comfort and care of the injured
plaintiff. See the section on Damages in this article.
ii. Minors.
Minors, although technically not entitled to bring a case
against a drunk driver by themselves, can bring the case
through a parent or guardian and they are entitled to the same
rights as all other victims.
iii. Household members who are passengers.
It should be noted that although passengers in the drunk
driver’s vehicle are entitled to sue the drunk driver, if they
are members of the drunk driver’s household, they may be
subject to exclusions in the family’s insurance policy; thus,
their recovery of damages would have to come from the drunk
driver directly and not his or her insurance company.
iv. Injury requirement: can be physical or
psychological.
A person cannot sue a drunk driver for anything other than
property damage unless they have been “injured” by the drunk
driver’s negligence. The injury can be physical or
psychological; however, in the case of strictly psychological
injuries, there must be some relationship between the driver’s
misconduct and driving drunk and the plaintiff’s psychological
injury. In other words, even in a collision with the
plaintiff or the plaintiff’s vehicle or real threat to the
plaintiff such as almost running him or her down in a
crosswalk, plaintiff still must prove that the drunk driver
“caused” the psychological injury.
Also, a drunk driver is responsible to the survivors if he
or she kills someone while negligently driving under the
influence. There are special laws as to who can sue in a
wrongful death case in California but, generally speaking,
someone has to be a close family member. An attorney will be
able to sort out who amongst family members has the right to
sue.
v. Bystander cases against drunk drivers.
Another way in which a plaintiff with purely emotional
distress damages can recover from a drunk driver (or any
negligent defendant) is a situation in which:
► the plaintiff was “closely related” to the
injured or killed victim.
► plaintiff was present at the scene of the
injury-producing event when it occurred and was
then aware that the event caused the victim
injury or death.
► as a result, plaintiff suffered “serious”
emotional distress.
vi. Someone who has been drinking may still be able
to bring a lawsuit for their own injuries.
It should be noted that just because a driver is drunk
does not necessarily mean that they are 100% responsible for
the accident. In cases in which a person is under the
influence of alcohol and was injured in the accident due to
the negligence of another, they can still bring a lawsuit
against the responsible parties for their own injuries.
For instance, it is not inconceivable that a person
driving with a few drinks, can be obeying the law, driving
through a green light at a safe speed when another vehicle
runs the red light and smashes into the drunk driver’s car.
Under those circumstances, the drunk driver is entitled to sue
the responsible party.
However, unless the drunk driver’s attorney can convince a
judge that the drinking had absolutely nothing to do with the
accident, a jury will learn of the fact that the plaintiff was
driving drunk and will certainly take that into consideration
when assessing the comparative liability of the drunk driver
and defendant and damages, if they choose to award any damages
to the plaintiff.
vii. Someone who has been convicted of drunk
driving in an accident cannot sue for pain,
suffering and emotional distress damages.
Further, a plaintiff who has been convicted as being under
the influence in a criminal case is not entitled to recover
any money for general damages, i.e., damages for pain,
suffering and emotional distress arising out of the same
accident.
C. Who Can Be Sued in an Accident Involving a Drunk
Driver.
i. The driver.
Obviously, the drunk driver himself/herself can always be
sued if the drunk driver was a negligent and at least partly
responsible for the plaintiff’s injuries.
ii. An employer.
Further, if a drunk driver is driving within the course
and scope of their employment at the time of the accident, the
employer will probably be found liable for any injuries or
death caused by the drunk driver’s negligence.
An employer or entity who “entrusts” a vehicle to a person
who is known to be under the influence and impaired, can be
personally negligent and found responsible for injuries or
death caused by the drunk driver’s negligence.
iii. Someone who has “entrusted” a vehicle to a
drunk driver.
Any person or entity who “entrusts” a vehicle to a person
whom they know at the time is under the influence of alcohol
and thus unfit to drive, will be found directly negligent and
responsible for any collision in which the drunk driver is
involved, whether or not (under some circumstances) the drunk
driver was at fault for the accident.
In some situations, a person or entity with knowledge that
the person they are entrusting a vehicle to is likely to drive
it under the influence may be responsible for injuries from an
accident involving the drunk driver even if the driver was not
under the influence at the time of the entrustment.
iv. Rental car companies.
In the case of rental car companies, the law will only
hold them responsible if they had actual knowledge that the
defendant was unfit to drive at the time they rented the
vehicle to the driver.
v.
Someone who offers “substantial encouragement”
to a drunk driver.
A person who offers “substantial encouragement” to a drunk
driver may be found liable to the plaintiff if the plaintiff
can establish “concerted action” between the person offering
encouragement and the drunk driver. This would be essentially
a conspiracy theory.
vi. Liquor stores and bars almost totally immune
from liability in drunk driving cases.
a. No liability generally.
Unfortunately, since 1979, under almost all circumstances,
a seller or furnisher of alcohol, i.e., a liquor store (or any
store that sells liquor) and a bar (or any facility that sells
alcoholic drinks) cannot be found civilly liable to any person
for injuries resulting from intoxication of its customers.
Put simply, except in very exceptional circumstances
described below, anybody who sells bottled alcohol or
alcoholic drinks cannot be sued by the victim of a drunk
driver (who became intoxicated as a result of the
establishment selling or serving alcohol which led to the
intoxication of the driver who injures the plaintiff).
b. No liability even for gross negligence.
This immunity provided to sellers and furnishers of
alcoholic beverages applies in even the most gross and
outrageous circumstances such as when a bar owner or employee
serves a customer ten, 20 or whatever number of drinks,
already knowing that the customer is severely impaired by his
or her speech or actions and knowing that the customer is
going to immediately get into a car and drive and has injured
or killed people in the past driving drunk.
c. Negligent entrustment of vehicle exception.
The only way that the bar owner may be held liable in the
case of an accident caused by a drunk adult is if the bar
owner negligently entrusted the vehicle to an obviously
intoxicated driver -- but note, the liability is based on the
“entrustment” and not allowing the customer to get drunk and
drive.
d. “Obviously intoxicated minor” exception.
The only other exception to the general immunity provided
to the sellers and furnishers of liquor is that a cause of
action may be brought against a liquor licensee who sells,
furnishes or gives any alcoholic beverages to an “obviously
intoxicated minor” when the act is the proximate cause of
injury or death sustained by any person.
This exception to the general immunity applies not only to
business that sell alcohol to an obviously intoxicated minor
but also “any other person” who sells alcohol to an obviously
intoxicated minor.
However, the person or business who sells alcohol to an
obviously intoxicated minor will not be held responsible if
the minor, in turn, sells or gives the alcohol to another
minor who then injures another person in a drunk driving
accident.
vii. Social hosts.
“Social hosts” who furnish alcohol to guests at parties
are also immune from any liability if one of those guests gets
drunk and causes an accident.
D. What If the Drunk Driver Is Only a Partial Cause of
the Accident?
i. Comparative fault principles apply when a drunk
driver and another person or entity jointly
cause injury or death.
It is not at all uncommon for drunk driving accidents to
occur when the drunk driver is not the solely responsible
party. In those cases, general “comparative negligence”
concepts apply and each responsible party will bear
responsibility for a plaintiff’s injury according to their
percentage of fault.
Thus, if the plaintiff is a passenger in a car driven by a
drunk driver who is speeding, and that car is hit by another
driver who ran a red light, it may be concluded that the drunk
driver is 50% responsible for the accident and the driver that
ran the red light is 50% responsible. In that circumstance,
each driver would be responsible to pay one-half of the
plaintiff’s damages.
However, under California joint and several liability law,
plaintiff can collect 100% of economic damages from either
defendant.
ii. What if plaintiff partially at fault.
In a situation in which the plaintiff’s own negligence
combines with the negligence of a drunk driver (and others) to
cause an accident, then the plaintiff’s recovery is reduced by
the percentage of their own negligence. Thus, if a plaintiff
is awarded $1,000,000 in damages but is found to be 10%
negligent, the plaintiff’s damages will be reduced to
$900,000.
However, in reality, if the case ends up in a jury trial,
the jurors’ anger at a person for driving under the influence
will generally shift all or most of the responsibility for the
accident to the drunk driver despite any technical analysis of
the facts and the law of the case which may indicate that the
drunk driver should be found less responsible.
iii. Plaintiff can sue defendants other than the
drunk driver for causing injuries or death.
Just because a driver is found to be drunk in an accident
does not preclude an injured plaintiff from suing any other
person or entity responsible for the accident including:
► manufacturer or seller of a vehicle or the
component parts of a vehicle such as seat belts
involved in the accident for a manufacturing or
design defect.
► the owner or possessor of a public or private
roadway where the accident occurred for
dangerous condition of the property.
► any other vehicle driver, person or entity
responsible for the accident.
Under California joint and several liability laws, each
party who is responsible for causing injury is responsible for
paying 100% of the economic losses of a plaintiff such as
medical expenses and wage loss, but only responsible for
paying the general damages, i.e., damages for pain, suffering
and emotional distress, on the basis of the percentage of
fault.
E. Under What Circumstances Is a Drunk Driver Found
Responsible for Causing an Accident.
i. Presumption of negligence if driving under the
influence.
Driving a vehicle while under the influence of an
intoxicating liquor, drug or both, raises what is known as a
“presumption” of negligence. A “presumption” of negligence
essentially means that the drunk driver is “assumed” to be
negligent.
ii. Impairment must have effected ability to drive.
However, it still must be shown that the driver was
impaired from the liquor or drug and that his or her physical
or mental abilities were in fact so impaired that they could
not drive with the caution or ability of a person of ordinary
prudence and skill in similar circumstances.
A person who has taken one or more drinks is not
necessarily presumed to be under the influence.
iii. Factors to be considered in determining if
person driving under the influence.
In determining whether or not the defendant was driving
under the influence, a jury, judge or arbitrator can look to
the following factors:
► the number of drinks consumed.
► the time in relationship to the accident when
alcohol was consumed.
► the driver’s appearance and conduct as described
by witnesses.
► the odor of alcohol as described by witnesses.
► measured blood alcohol content.
► expert opinion on the effect of the blood
alcohol level on the driver, such as peripheral
vision and reflex time.
iv. Plaintiff must establish intoxication caused the
accident.
Also, plaintiff must establish not only that the driver
was intoxicated, but that the intoxication was a cause (i.e.,
a substantial factor) of the accident.
F. Comparative Negligence of Passengers in the Vehicle
Driven by a Drunk Driver.
A passenger in a vehicle driven by a drunk driver may be
found negligent simply for knowingly driving with an
intoxicated driver. This may reduce the plaintiff-passenger’s
recovery based on their percentage of negligence, but it does
not bar recovery.
G. Useful Evidence in Proving Drunk Driving Cases.
i. Blood alcohol level.
By far the best evidence to establish that someone was
driving under the influence is the blood alcohol level
determined by the police or hospital or drug screens conducted
by law enforcement agencies or hospitals which will determine
the amount of most prescription and non-prescription drugs in
a person’s blood stream.
ii. Must establish chain of custody of blood alcohol
level test.
However, it is important for plaintiff and plaintiff’s
attorneys to note that a police report or hospital record
containing a reported blood alcohol or drug level is not
admissible at the time of a trial because, under the law, it
is considered hearsay. The plaintiff must subpoena to trial
the actual evidence of the blood alcohol or drug screen itself
or everyone in the chain of custody of the test from the
arresting officer to the lab technicians to the receiving
clerk. Sometimes, not every one of these people needs to be
called at trial; however, a plaintiff must “lay a foundation”
for the accuracy of the test results.
iii. Testimony of witnesses.
Most of the other evidence in a drunk driving accident
case will come from the testimony of witnesses. This can
include:
► testimony of any person who observed the
defendant drinking within 24 hours of the
accident.
► a person who sold the defendant bottles of
liquor or drinks in the 24 hours before the
accident.
► any person who observed the defendant’s
movements or conduct in a reasonable time period
before or after the accident.
► witnesses who observed the defendant’s driving
in a reasonable period before or after the
accident.
► any person who smelled the defendant’s breath
before or after the accident.
► any of the observations of the arresting
officers including the results of a field
sobriety test.
► in circumstances in which the defendant drank
the liquor from a bottle, testimony as to when
the bottle was purchased and the amount of
liquor left in the bottle at the time of the
accident.
► testimony of any witness who listened to the
defendant talk before or after the accident.
In the case of street drugs, a plaintiff should attempt to
develop similar evidence; however, it is obviously going to be
harder to ascertain the source of the street drugs.
iv. Impairment due to prescription drugs.
In the case of prescription drugs, it is important for a
plaintiff, if possible, to obtain the:
► prescription records of the defendant.
► relevant medical records of the defendant.
► warnings on or with the bottles of drugs which
may have caused defendant to be under the
influence. (These can be obtained from the
defendant or, in the event this is not possible,
from the manufacturer or pharmacy.)
► testimony of the pharmacist or physician who
prescribed the drugs or sold the drugs to
defendant regarding any warnings given to the
defendant.
► description of the drug’s effects on people as
described in medical literature and the
Physicians’s Desk Reference (PDR).
H. Expert Testimony in Drunk Driving Cases.
i. Experts generally.
There are a wide variety of expert witnesses who can
testify in motor vehicle accident cases generally such as
accident reconstruction experts, mechanical engineers and
physicists. In addition to those experts, there are experts
who can be retained specifically on the driving under the
influence of drugs or alcohol issue.
ii. Toxicologists.
Toxicologists can speak to the level of blood alcohol or
drugs in a person’s body and, if they have the specialized
training, they can testify to the likely impairment caused by
ingestion of the alcohol or drugs.
iii. Human factors experts.
Human factors experts provide another source of potential
expert testimony for a plaintiff in a drunk driving accident
case. Human factors can be defined as the relationship of
humans to their environment, equipment and facilities. It
covers the application of psychological and physiological and
engineering knowledge to the relationship between people and
machines. There has been a great deal of human factors
research in the area of automobile accidents and the effect of
driving under the influence on driver behavior.
A human factors expert will testify that study after study
has verified the serious consequences of drinking and drug
ingestion and driving.
The human factors expert will be able to testify, based on
research and blood alcohol level of the defendant of the
likely impairment of the defendant and how that effected their
ability to drive.
iv. Scope of testimony of human factors experts in
drunk driving cases.
A human factors expert with the appropriate qualifications
and knowledge of the research and literature can testify that:
► alcohol combined with any other impairment or
handicap will compound the risk of an accident.
► a single drink may be intoxicating to a tired or
ill person while more than the legal limit of
blood alcohol may not effect another person’s
ability to drive with care.
► a blood alcohol level of .035 generally results
in the beginning of impairment; in judgment,
visual perception and tolerance to glare.
► a blood alcohol level of .05 creates a definite
impairment in muscle performance and reaction
time and most people show deterioration of
driving skill.
► a blood alcohol level of .10 creates medical
evidence of intoxication.
► a blood alcohol level of .20 creates a loss of
balance and coordination.
► a blood alcohol level of .35 generally results
in loss of consciousness.
v. Human factors testimony on over-the-counter and
prescription drugs that may cause an impairment.
Further, on the issue of drugs, a human factors expert can
testify that the side effects of many drugs, some sold over
the counter, can impair a driver’s ability. These include:
► analgesics.
► hypnotics.
► sedatives.
► tranquilizers.
► nervous system stimulants.
► antihistamines.
► sulfanalimides.
► motion sickness drugs.
► anti-infective agents.
vi. Human factors testimony and illicit drugs.
In addition, illegal drugs such as hallucinogens,
marijuana, cocaine, speed and other psychoactive drugs can
change a driver’s emotional reactions and concern for
surroundings and cause an impairment.
I. Damages.
Comparative damages in a case involving a drunk driver are
awarded in the same manner as in any other case involving a
motor vehicle accident with the exception that a person who is
convicted of drunk driving cannot recover general damages for
pain and suffering and emotional distress.
In a motor vehicle accident case, plaintiff can recover
for past medical expenses, future predicted medical expenses,
past wage loss, future predicted wage loss and for past and
future pain and suffering.
The medical expenses are determined by the testimony of
physicians or other health care providers. Frequently, an
economist or an expert in the industry determines the amount
of future wage loss; however, no expert can testify to the
value of pain and suffering.
Pain and suffering is typically the most significant
element of a plaintiff’s damage and it includes emotional
distress. Contrary to popular belief, there is no formula for
pain and suffering awards and it varies greatly from case to
case depending upon the location of the case, the seriousness
of the injury and how well the case is presented.
Further, under most circumstances, a driver of a vehicle
who is injured in a car accident who does not carry liability
insurance cannot recover general damages against another
driver. This is not true when the plaintiff can establish
that the other driver was drunk.
Further, there are specific rules that apply to when a
plaintiff can recover punitive damages against a drunk driver
which will be discussed in section J(ii).
J. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to their injury and having
to watch the plaintiff suffer. In order to recover these
damages, a spouse must be named as a party to the lawsuit and
must have been married to the plaintiff at the time of the
injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
K. Punitive Damages in Drunk Driving Accident Cases.
i. Punitive damages generally.
Punitive damages are damages awarded against defendant in
order to punish the defendant and to deter the defendant and
others from committing the same conduct in the future.
Punitive damages are generally only allowed where it is
proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud or malice which can be
implied from acting in the conscious disregard of the rights
or safety of others.
ii. Special rules for punitive damages in drunk
driving cases.
In a drunk driving case, a plaintiff must establish by
clear and convincing evidence:
► that a person voluntarily drinks to the point of
intoxication knowing he or she will be driving;
► and the driver was aware of the probable
dangerous consequences of the conduct; and
► the driver willfully and deliberately failed to
avoid those consequences.
Thus, testimony must be developed by the plaintiff’s
attorney that indicates that the defendant knew that they
would be driving before they began drinking and knew of the
extreme risks of drunk driving before punitive damages will be
awarded.
L. Special Settlement Considerations in Drunk Driving
Cases.
Although there has been a trend in recent years for
downward awards in settlements in motor vehicle accident
cases, the exception is in cases involving drunk drivers.
Most jurors are likely to feel an intense dislike for a drunk
driver and either award the plaintiff a significant punitive
damage award or “spike” a verdict for general damages by
awarding the plaintiff damages for what might ordinarily be
questionable economic losses and awarding the plaintiff a
substantial verdict for general damages.
These factors should be considered when determining the
settlement value of a plaintiff’s case. Thus, plaintiffs
should generally hold out for larger settlements for the same
injuries in cases involving drunk drivers.
Further, since under the law an insurance company is not
allowed to pay for a defendant’s punitive damages, a case
involving a drunk driver in which the drunk driver is
personally at risk for a punitive damage verdict puts the
defendant in a conflict position with their insurance company.
In a case in which a plaintiff is willing to settle for
the defendant’s insurance policy limits, can the insurance
company refuse to pay those limits and expose its insured to a
punitive damage award? This could lead to bad faith liability
against the insurance company in a later case brought against
it by its insured. Plaintiff’s attorney should point this out
to the insurance carriers, insurance defense lawyer and
personal counsel for the defendant if the defendant has his or
her own personal attorney.
In cases in which the policy limit is significantly higher
than a plaintiff’s potential compensatory (i.e., not punitive)
damage award, the insurance company will normally hold out and
not offer the policy limits. However, if the plaintiff can
establish that the case has a value even close to the
insurance policy limits, it will be very, very hard for the
insurance company to not pay the entire policy limit and put
its insured at risk. Plaintiff’s attorney should recognize
this important factor and utilize it to increase a plaintiff’s
settlement.
M. Considerations in Evaluating Cases for Settlement.
i. Many different factors are taken into
consideration when evaluating settlements.
There are many, many factors which are utilized when
evaluating a case for settlement. The perception that many of
the public have that a case settles for three times the
medical bills and wage loss cannot be further from accurate.
There are cases that settle for millions of dollars in which
there are no medical bills or wage loss and there are cases
that settle for a few thousand dollars in which there are
hundreds of thousands of dollars of medical bills and wage
loss. Following are some of the factors that are relevant to
evaluating the case for settlement purposes:
ii. Liability.
The clarity of liability (i.e., fault) in the case is a
critical settlement factor.
In a case in which liability is unclear or the plaintiff
has a substantial chance of losing, the settlement value of
the case has to be reduced significantly to factor in the
plaintiff’s chances of losing.
Theoretically, if the value of an injury claim is
$100,000, but plaintiff only has a 50/50 chance of winning, a
$50,000 settlement may be appropriate. However, plaintiffs
must always realize that cases against large defendants or in
cases in which the defendant is insured, that the plaintiff
has a lot more to lose than the defendant. In the example
above, if the insurance company turns down a $50,000 demand
and the plaintiff wins $100,000, payment of an additional
$50,000 will mean very, very little to a large insurance
company or corporation. On the other hand, if the plaintiff
turns down the insurance company’s $50,000 offer and wins
nothing at trial, it could create a devastating financial blow
in which the plaintiff is unable to pay for his or her bills.
iii. Comparative fault of the plaintiff.
If a plaintiff is found to be partially at fault for
causing their own injury, then their potential jury award is
reduced on the basis of plaintiff’s percentage of fault. In
other words, if a case were to go to trial, and plaintiff were
to receive a $100,000 verdict, but was found to be 25% at
fault, the plaintiff’s verdict would be reduced to $75,000.
Thus, when settling a case, plaintiff should reduce his or her
expectations of a settlement by the likely finding of
percentage of fault that would occur if a case were to be
tried.
iv. Likely jury verdict value of the case.
In cases in which insurance policy limits are not an
issue, most good attorneys attempt to settle the case based
upon what a jury would be likely to award if the case went to
trial.
Determining what a jury will award in a given case is more
of an art than science; however, reasonable estimates can be
made based upon what jurors have awarded in similar cases in
similar venues (i.e., locations). Most verdicts are reported
in “jury sheets” that lawyers read and utilize when attempting
to assess the value of any particular case.
v. Aggravated liability.
In cases in which a jury is likely to get angry at a
defendant for misconduct that was something more than
negligent, it is known that jurors are likely to “spike” their
verdict and award more money for a plaintiff’s injury than
they would if a defendant’s misconduct was merely negligent.
Aggravated liability situations, such as a drunken
driver,will increase the risk to the defendant of a large jury
award and this should be taken into consideration in
settlement.
vi. Punitive damage exposure.
If the defendant’s misconduct is so bad that there is a
risk for punitive damages, i.e., the jury awarding damages
specifically to punish the defendant, this should become a
major factor in settlement negotiations. A potential award of
punitive damages is complicated by the fact that under the
law, the insurance company is not allowed to pay an award for
punitive damages; however, normally, the defendant, through a
personal attorney, attempts to apply pressure on the insurance
carrier to pay more in settlement so that the defendant will
not be exposed to the punitive damage risk.
vii. The character and credibility of the
parties.
A plaintiff’s case is worth more if he or she is likeable
and believable. It is known that jurors will award more money
to people that they like and believe than people whom they
dislike and don’t believe.
To a lesser extent, this is also true for defendants. A
likeable or believable defendant is likely to fare better in a
lawsuit than someone with the opposite traits.
viii. The extent of the injury.
Theoretically, the more serious an injury, the greater
should be the value of the plaintiff’s case.
ix. Objective evidence of injury.
Injuries that can be visualized or that are able to be
demonstrated by radiographic evidence such as x-rays, MRIs,
CAT scans or other scientific tests, will normally result in
higher settlements than injuries which depend upon the
believability of the plaintiff to prove.
There are many injuries which may have severe consequences
for the plaintiff which are not diagnosable by objective
tests. This can include severe back problems, headaches and
pain anywhere in the body. Experience has shown that jurors
are hesitant to award large damages in cases in which there is
no objective evidence of injury; thus, the settlement value of
any case is increased by objective evidence of injury and
decreased by the lack of it.
However, a credible plaintiff can sometimes overcome the
lack of objective evidence of an injury and this must also be
taken into consideration in the right case.
x. Past and future medical bills of the plaintiff.
As long as a plaintiff can establish that past medical
expenses and likely future medical expenses are reasonable and
related to their injuries, the bills will be an important
consideration in settlement.
However, the defense will generally claim some amount of
overtreatment and, thus, some portion of the medical bills
should be excluded from settlement consideration. Further,
the defense will argue that plaintiff will be unlikely to need
or have the claimed future treatment and/or the future
treatment would not be related to the subject incident.
xi. Past wage loss and future wage loss.
Wage loss is another important consideration in evaluating
a claim as long as plaintiff can establish that he or she was
reasonably off work or will be reasonably off work due to the
subject incident. The defense will likely take the position
that the amount of the wage loss should be discounted because
plaintiff should have been back to work sooner and, in the
case of future wage loss, the defense will claim that
plaintiff could be doing some type of work which would pay
them as much or almost as much as the work they were doing
before the incident.
Also, for plaintiffs who are self-employed or do not have
a strong consistent earning history before the
accident/incident, it can become very difficult to establish a
wage loss claim.
xii. Is the injury permanent.
In cases in which plaintiff has a permanent injury and
some objective evidence of that injury, there will likely be a
higher settlement value because the case will have more jury
appeal.
xiii. Venue (where the claim will be tried).
It is beyond question that cases tried in certain
locations, particularly urban locations, result in much higher
verdicts than cases tried in more rural counties. This is a
factor that must be taken into consideration in settlement.
xiv. Policy limits and defendant’s assets.
No matter how severe the injury, the plaintiff’s ability
to recover damages against defendant will be limited by either
the defendant’s policy limits or the personal assets of the
defendant.
However, in cases involving motor vehicles, the plaintiff
may have his or her own uninsured or underinsured motorist
insurance which would provide additional coverage for the
plaintiff’s injury and allow the plaintiff to receive further
compensation in a settlement with their own insurance carrier.
xv. Target defendants.
Even though jurors are not supposed to consider the wealth
of a defendant or whether or not the defendant is a
corporation in their verdict, they are far more likely to make
larger awards against large companies than they are people who
they perceive to be middle class or poor. So this becomes
another important settlement consideration.
xvi. Reputation and ability of attorneys.
The claims representative or defense attorney will report
to the insurance carrier or defendant the ability of the
plaintiff’s attorney and the likelihood that the attorney will
try a case and try it well.
In situations in which the defense believes that the
plaintiff’s attorney will not be willing to take the case to
trial, there is little incentive to offer a significant amount
of money in settlement.
On the other hand, if the defense believes that a
plaintiff’s attorney will not only go to trial, but will
receive an optimum verdict, the defense’s risk is increased
and thus the settlement value of the case is increased.
By the same token, plaintiffs must also take into
consideration the reputation and ability of the defense
attorney. If the case is against a good defense attorney,
plaintiff will likely receive less money from the jury; thus,
the settlement value of the case, to some extent, is
decreased.
xvii. Expense of litigation.
The expense of litigation should also be considered in
settlement. There are some cases which, if worked up
properly, could result in the expenses actually being higher
or almost the entire amount of an eventual settlement or
verdict.
Some insurance companies and corporations are cost
conscious and will take into consideration the expense of
proceeding in the case versus early settlement.
However, just because a case may cost the defense $200,000
to litigate does not mean that in a case they otherwise
evaluate as being worth $25,000, they are going to offer the
plaintiff $200,000 in settlement.
Rather, in the above example, it may cause the corporation
or insurance company to raise their offer five or ten thousand
dollars or to try to settle the case early for $25,000 before
expenses are actually incurred. Corporations and insurance
companies are loathe to make offers of settlements based on
the cost of defense because of a concern that they will be
seen as an easy target for plaintiffs.
N. How Soon Must a Drunk Driving Injury Case Be Brought
After an Accident?
Although there are a few exceptions, generally speaking in
California a case for personal injury must be brought within
one year of the date of the accident/incident. In rare cases,
that time period is extended to one year from the date of the
discovery of a wrongdoing and/or an injury. However, be
careful. If the case is against a public entity, the claim
must be brought within six months of the date of the accident.
Except in medical malpractice cases and cases against public
entities, minors have until their 19th birthday to bring a
case.
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