Drunk driver cases are typically worth much more than other personal-injury cases. They should be handled differently than routine automobile accident cases in order to maximize the value for the client. I recommend filing a lawsuit immediately and taking the defendant drunk driver’s deposition as soon as possible. This puts the drunk driver in an awkward position of having to answer questions that might have an effect on their criminal prosecution. As a result, the drunk driver will commonly plead the fifth amendment right to remain silent so as not to incriminate himself or herself. There is a question as to whether or not the fact that the defendant pled the Fifth Amendment protection is admissible in the civil trial, but I like to have that testimony videotaped to pose the threat of getting in front of the jury. Even if the defendant pleads the fifth on certain questions, you can commonly get quite a bit of information regarding the other aspects of the case during the deposition. Taking the defendants deposition early is a great way to gain leverage in settlement negotiations.
Not only that, I like to litigate early on in a drunk driver case to establish evidence for a punitive damages claim. Punitive damages are not covered by insurance policies. However, if there is a pending punitive damages claim, the insurance carrier has a duty to act in the insured’s best interest and settle the claim for a reasonable amount, considering that the insured is at risk for personal exposure. It takes a while to get the court to approve amending the complaint to add a punitive damages claim, so the earlier you start the litigation process the better. You don’t want to have a delay due to the punitive damages claim.
The other technique I like to use is making a demand for the policy limits immediately before the insurance company has had an opportunity to investigate the case. It’s important to give the insurance company enough time to investigate the case. However, a lot of insurance companies are so backed up and slow to respond, they often fail to investigate within a reasonable time, and therefore open themselves up to possible bad faith claims. If an insurance company fails to pay the policy limits within a reasonable time when they could have and should have settled the case for the policy limits, the insurance company is in bad faith, and they may be responsible for 100% of the plaintiffs damages, regardless of the amount of insurance coverage. That is a big deal for a plaintiff, particularly a plaintiff who sustained damages that exceed the value of available insurance coverage.
One pitfall to look out for in drunk driving cases: do not settle with the underlying tortfeasor for the tortfeasors policy limits if there is also uninsured motorist coverage, unless you already obtained the full uninsured motorist policy limits. If the case goes to court against the uninsured motorist carrier, you want to have the drunk driver sitting at the defendant’s table along with the uninsured motorist carrier. That’s significantly increases the value of the claim due to the jury’s common inclination to punish the drunk driver.
These are just a few of the techniques we like to use when prosecuting a personal injury case against a drunk driver.
