Michelle is a passenger in a car being driven through a residential part of St. Louis late at night. Michelle and the driver, a friend of hers, have come from a bar, and the driver is intoxicated. The driver runs a red light and gets hit broadside on the passenger side by another car. Michelle is not wearing her seat belt and is thrown from the car. She is pronounced dead at the scene. Michelle's friend is arrested and subsequently pleads guilty to DWI and vehicular homicide.
Michelle was married with two children. She had been an administrative assistant to a vice-president of a local hospital. She earned $40,000 per year.
The first thing that the personal representative of Michelle’s estate (since Michelle was married, this will almost always be her husband) should do is report the incident to her own car insurance company, and to the insurer of the driver’s vehicle. (Learn more: Do I need to report a car accident in Missouri?)
Next, it's important to get a copy of the police report.
Michelle’s husband needs to be aware of Missouri’s statute of limitations, which is a law that sets a deadline for filing a lawsuit.
In Missouri, the statute of limitations for car accidents is five years. However, if the accident results in a death, like in Michelle’s case, the statute of limitations for wrongful death claims arising from a car accident is three years from the date of the person’s death, if that date is different from the date of the accident.
If you have not settled the case, and you don’t file a lawsuit within the time period set by the statute of limitations, your case is over unless you fall within one of the very limited exceptions that might stop the clock. If you can’t settle your case well before the statute of limitations expires, it may be time to contact a Missouri car accident lawyer. (Learn more about Car Accidents and the Lawsuit Process.)
Even though proving liability seems relatively straightforward in this case, where the driver pled guilty to vehicular homicide, the insurer will take advantage of every defense that it can, and might claim that Michelle’s failure to wear a seat belt and the fact that she got into the car with an intoxicated driver rendered her comparatively negligent. Accordingly, Michelle’s husband and estate must be aware of Missouri's shared fault rules in personal injury cases.
Missouri follows a "pure comparative fault” rule, meaning that your total damages award is reduced by whatever percentage of the “fault” the judge or jury believes is yours. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. If you were found to be 80% at fault, your damages would be reduced to $20,000.
In order to maximize your potential recovery, you want to make absolutely sure that, whenever possible, the defendant’s adjuster knows that you did nothing wrong. (Learn more about Proving Fault for a Car Accident.)
It's important to note that the other driver may carry only the minimum amount of liability insurance required under Missouri’s car insurance laws. In Missouri, a driver is only required to carry bodily injury liability coverage in the amount of $25,000 per person and $50,000 per accident, and property damage liability coverage in the amount of $10,000 per accident. If your medical bills and other damages exceed those minimums, but the other driver carries no additional coverage, then an insurance settlement may not cover your losses. In that situation, you may want to talk to an attorney about your other options.
In Michelle’s case, the compensatory damages (i.e., her loss of future earnings and earning capacity) total $1,350,000. (The insurer will need to see Michelle’s earnings records so that it can evaluate Michelle’s estate’s lost earnings claim.)
Michelle and her attorney decide that another $1,000,000 in damages is appropriate to compensate for Michelle’s pain and suffering and her children’s loss of consortium in connection with the accident. However, before they even make a demand, they learn that the driver only carried $250,000 of liability insurance per person. Michelle has no underinsured driver coverage, and the driver has no financial assets to go after, so they accept a final settlement of the policy limits of $250,000.
Learn more about Settling a Car Accident Case.