Hit by a Drunk Driver: Why the Claim Is Different, and Who Pays

The structure of the claim is the ordinary one. Your injuries, medical bills, lost income and pain and suffering are presented to the drunk driver's liability insurer, and the insurer pays up to the policy limit. If the limit is too low, your own underinsured motorist coverage applies. If the driver had no insurance, your uninsured motorist coverage does. Those mechanics do not change because the driver was drunk.

What changes is the fault picture, the available damages, and the number of potential defendants. Fault is effectively conceded once there is an arrest, a blood or breath test, or a plea. The insurer will still argue about the injuries, but it will not spend much effort arguing its driver was not responsible. The remaining questions are how much the injuries are worth and where the money comes from.

The driver's intoxication also changes how juries respond, which insurers know. A case that goes to trial with a drunk driver as defendant is one the insurer would rather settle, and the settlement value of a drunk driving claim is generally higher than the same injuries from an ordinary crash.

Compensatory damages make you whole: bills, wages, pain and suffering. Punitive damages are different. They are awarded to punish conduct that was reckless or malicious and to deter others, and they are paid to the injured person on top of compensation. Drunk driving is the most common fact pattern in which courts allow them in a car accident case, because driving while intoxicated is treated as a conscious disregard of other people's safety.

Most states permit punitive damages for drunk driving, and some set a lower standard of proof or a specific statute for it. A few states do not allow punitive damages in civil cases at all, or cap them. The amount is tied to the driver's conduct and, in many states, to their wealth, and is decided by a jury if the case is tried.

The complication is collection. Many liability policies exclude punitive damages, and some states prohibit insuring against them as a matter of public policy. A punitive award is then owed by the driver personally. For a driver with assets, that is meaningful; for one without, it is a judgment that may never be paid. Attorneys use the threat of a punitive claim as leverage in settlement rather than counting on collecting it.

Dram shop laws, named after an old measure of spirits, make a business that sells alcohol liable for harm caused by a customer it served while visibly intoxicated or, in many states, under age. Most states have one in some form. The purpose in an injury claim is practical: a bar carries liquor liability insurance, often with limits far above a personal auto policy, and a seriously injured victim of a driver with a minimum policy may have no other source of adequate recovery.

The claim requires proof that the driver was served while already showing signs of intoxication, which means witnesses, receipts, surveillance video and the driver's own account of where they were. That evidence disappears fast. Video is overwritten in days, servers forget, and receipts are not kept. An attorney handling a drunk driving case will send preservation letters to the establishment within the first week.

Some states extend liability to social hosts who serve guests, usually only when the guest was a minor. Others limit dram shop claims with short notice requirements, caps, or a requirement that the victim not have contributed to the driver's intoxication. Texas, for example, requires that the customer was obviously intoxicated to the point of presenting a clear danger, and Illinois caps the recovery.

Suppose a driver leaves a bar after several hours, runs a red light at high speed and hits your car broadside. You suffer a fractured pelvis and a lacerated spleen, spend nine days in hospital, and are off work for four months. Medical bills reach $140,000 and lost wages $20,000. The driver is arrested with a blood alcohol level twice the legal limit and later pleads guilty. The driver's liability policy is $50,000. You carry $100,000 in underinsured motorist coverage.

The driver's insurer offers its $50,000 limit within weeks, which is the normal response when fault is clear and damages far exceed the policy. Your own insurer pays under the underinsured coverage; in an offset state that adds up to $50,000 more, in an add-on state up to $100,000 more. Even in the best case, you are at $150,000 against losses already above $160,000 before pain and suffering.

Your attorney obtains the bar's receipts showing the driver was served eight drinks in three hours and surveillance showing him stumbling at the bar. A dram shop claim against the bar's liquor liability policy, with a $1 million limit, becomes the main claim. The punitive damages claim against the driver personally is pursued but is likely to be uncollectible beyond his modest assets. The criminal court orders restitution of a few thousand dollars toward medical bills. All figures are hypothetical.

Drunk driving claims are built on evidence that exists in the first days and not afterward. The steps below are the ones that most affect the result.

• Make sure the police report records the arrest, any field sobriety test, and the breath or blood result, and get the report number and the officer's name.
• Ask the prosecutor's office to be registered as a victim, which gives you notice of hearings and the right to seek restitution.
• Note anything the driver said at the scene about where they had been drinking, and tell your attorney immediately so a preservation letter can go to the establishment.
• Photograph the scene, both vehicles, and any bottles or cans visible in the other car.
• Get the names of witnesses, including anyone who saw the driver before the crash.
• Contact your state's crime victim compensation program; impaired driving victims are often eligible for help with medical bills and lost wages.
• Get your own policy's uninsured and underinsured limits in writing, because they are likely to matter.

Punitive damages rules vary the most. Most states allow them for drunk driving, often under a standard of gross negligence or conscious disregard. A few states, including Nebraska and Washington, generally do not permit punitive damages in civil cases. Several states cap them, by a multiple of compensatory damages or a fixed amount. Whether a liability insurer can pay them is also a state question; some states forbid insuring against punitive damages for the driver's own conduct.

Dram shop law is similarly varied. Texas, Illinois, New York, New Jersey and many others have statutes allowing claims against commercial servers. Some, such as California, sharply limit the server's liability except for serving obviously intoxicated minors. Notice deadlines are a trap: a few states require written notice to the establishment within months of the injury, well before the general statute of limitations.

The ordinary rules still apply. Comparative negligence can reduce the claim if you contributed to the crash, and in Alabama, Maryland, North Carolina and Virginia any fault can bar it, though drunk driving fact patterns rarely involve victim fault. No-fault states pay initial medical bills through your own policy, and drunk driving injuries usually clear the threshold for suing. The deadline to sue runs from the crash: one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina. The criminal case has no effect on the civil deadline.

The prosecution of the driver is brought by the state, not by you, and its purpose is punishment. You may be asked to give a statement, you have the right to be informed of proceedings and to be heard at sentencing in most states, and the court can order the driver to pay restitution for your out-of-pocket losses as part of the sentence. Restitution orders are enforceable but are paid at the driver's capacity, often in small installments over years.

A guilty plea or conviction is powerful evidence in the civil claim, and in many states it establishes the driver's intoxication conclusively. An acquittal does not end the civil claim, because the civil standard of proof is lower, and the civil case can proceed on the same evidence.

The two cases run on different clocks. Do not wait for the criminal case to finish before pursuing the civil claim, because the civil deadline keeps running, and the insurance and dram shop evidence does not wait.

A drunk driving claim with serious injuries is one where the sources of recovery are the whole problem, and identifying them, the driver's policy, your own coverage, the establishment that served the driver, and any other responsible party, has to happen early. Most personal injury attorneys work on contingency, and the preservation letters that keep a dram shop claim alive are routine for them and unavailable to you without one.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what sources of recovery exist. If you were hit by a driver who was arrested for impairment, you can request a free claim review.

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