If you are unlucky enough to be injured in a car accident with a drunk driver, what are your legal rights? How does another driver’s DUI or DWI affect your car accident injury claim?
Let's start with the basics. In all states, a driver is considered to be intoxicated if his/her blood alcohol concentration (BAC) is more than 0.08%. Other state laws vary when it comes to specific kinds of drivers. Commercial drivers like truck drivers or delivery men/women are usually considered to be intoxicated if their BAC is more than 0.04%, while the limit is even lower for minors (those under 21). In most states, minors are considered to be intoxicated if their BAC is more than 0.02%.
If the driver that hit you was intoxicated, you will win your injury claim almost every time. It’s that simple. If you go to trial in a car accident case against a drunk driver, the chances of losing at trial are close to non-existent. Just about the only way that a plaintiff can lose a case against an intoxicated driver is if the plaintiff is an all around jerk and the worst liar in the world. Juries have no sympathy or tolerance for drunk drivers. Period.
Because the driver’s insurance company knows that it is almost definitely going to lose if it goes to trial, it wants to settle the case as long as the settlement is close to reasonable. Basically, in a DUI case, the plaintiff has the insurer over the barrel. The insurer does not want to go to trial, so it will tend to pay a little more in DUI cases than in cases where its driver was sober but negligent. As a general rule, the drunker the defendant, the more that the insurer will pay to settle the case before trial. (Read a few Real Life Examples of Drunk Driving Accident Settlements.)
This depends on how serious the plaintiff’s injuries are. If the plaintiff’s injuries aren’t too serious, such that the case is likely to settle for less than $50,000, then the plaintiff will most likely be able to settle the case without filing a lawsuit. In a small case, the insurer wants to get it over with, and doesn’t want to be bothered with litigation.
But if the injury is more serious -- worth more than about $50,000 or so -- the plaintiff probably won’t be able to get top dollar without putting the case into suit. Insurers generally won’t pay the full value of larger injury claims prior to suit even in DUI cases.
Then, once the case has gone into suit, serious settlement discussions will almost never begin until the defense attorney has done all of the pretrial investigation (the discovery process) that he/she wants to do. If the plaintiff’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 settlement until after the plaintiff’s lawyer has identified the plaintiff’s expert witnesses. This is because they want to wait and see if the plaintiff’s lawyer has in fact done the work that is needed to make the case ready for trial.
In many car accident cases, especially when the lawyers know each other, one lawyer will just pick up the phone and make a demand. Settlement discussions are often very informal in car accident cases.
But if the defense attorney thinks that the plaintiff’s demand was too high, he/she may simply ignore the demand or may say that the demand is too high and that the insurer will not make a counteroffer. If the defense attorney does make a counteroffer, then the bargaining begins.
What about mediation? Almost all courts now require the parties to go to mediation before trial. Mediation can be done with either a private mediator or a judge who is not assigned to that case. Mediation can go on for hours or even days. Mediation does not always work, but it has a very good track record in getting cases settled. (Learn more about Alternatives to Court in Car Accident Cases.)
Settlement negotiations can go on for a long time. You should not be discouraged by the fact that negotiations are taking so long. As long as the two lawyers are still talking, settlement negotiations can continue.
If you accept the defense attorney’s settlement offer, then the case is settled. All your lawyer needs to do to let the defense attorney know that you accept the offer is to tell him/her, by email, phone, fax, letter, or a combination of the above.
The most important rule about settlements in personal injury cases is that, once your lawyer tells the defense attorney that you accepted the settlement offer, the case is settled. In almost every state, this is final. If you change your mind about settling the case five minutes after your lawyer tells the defense attorney that you accepted the settlement offer, you have almost zero chance of getting the court to reverse the settlement.
Learn more: Before You Sign That Car Accident Settlement Release.