What do I do if I’m in a car accident with a drunk driver?

South Carolina ranks well above the national average for deaths from drunk drivers, among all age groups. For the year 2018, the state saw 291 alcohol-related fatalities and a total of 15,188 arrests for driving under the influence. Although state and national efforts to reduce impaired driving have brought down the numbers over a ten-year period, being hit by a drunk driver is still a problem for many accident victims.

So what should you do if you’re in a car accident with a drunk driver? The first concern in any accident is to check yourself and any passengers in your car for injuries and call 911 to report the accident, asking for medical assistance if needed. The 911 operator will probably ask if your car is still driveable, and if so, can you move it out of the road to prevent any further collisions? If not, they will probably direct you to put your flashers on and wait for assistance.

If you’re injured, you’ll probably be advised to stay in your car and wait for help. If you’re not hurt, you may get out and go talk to the other driver to exchange insurance and contact information. This is the part where people sometimes figure out that the other driver is drunk. Obviously, this is frustrating and will probably make you very angry, but try to avoid getting in an argument. Some people can get belligerent when they’ve had too much to drink, and getting in a fight on the side of the road will not help anyone. If the conversation gets heated, go back to your car and wait for the police to deal with it. (But do make sure to get the other driver’s plate number in case they decide to drive off.)

Be sure to seek medical treatment for any injuries you have, even if they don’t seem like a big deal in the moment. Frequently, injuries start to hurt more several hours after the accident. It can take a little while for swelling and soreness to set in, especially with soft tissue injuries like whiplash. Being in a car accident can also be a scary experience, which tends to produce adrenaline in most people. Sometimes this rush of adrenaline can dull the pain or distract you from it, which is another reason why you might think you’re okay at first. Either way, it’s a good idea to at least let the paramedics check you out at the scene.

It’s also okay to see a doctor a day or two later if your pain gets worse or isn’t going away. Be sure to tell them about the accident so they know that it could be related, even if you’re not sure if it is.

But What Do I Do About All These Medical Bills?

Even minor injuries can be expensive to treat these days, with or without good health insurance. A simple broken arm can cost thousands of dollars, from X-rays to cast settings. And that’s not counting the physical therapy you might need later to get your arm back in shape.

Once you’ve received a copy of the accident report – which the responding law enforcement agency usually makes available within a week or two of an accident – you can file a claim with the other driver’s insurance carrier. However, you might not want to do this immediately. 

Naturally, you want to get your medical bills paid in a timely manner, but it may be hard to know if you’ll have more bills later on if you’re still in treatment. If you go ahead and file a claim right away, you need to know that the insurance company may make you an offer that doesn’t include any future bills. Often if you read the fine print really carefully, you may find that this offer concludes the insurance carrier’s obligation to pay for your bills. So if you need future treatment, it may not be covered. Additionally, this offer may not even cover your current damages if you consider lost wages from missing work, pain and suffering, etc.

They may also refuse to pay the claim, too. Sometimes people are surprised when this happens. It seems obvious that the other driver was at fault, they were driving while impaired! But the fact is that it’s possible for sober drivers to make mistakes, too. South Carolina uses what’s called modified comparative negligence statutes in personal injury cases like car accidents. These say that an accident victim can collect damages from the other driver as long as the victim was not at fault in the accident by more than 50 percent. If the victim was at fault by less than 51 percent, they can collect compensation from the other driver’s insurance, but their award will be reduced by the amount they were at fault.

You may be wondering how you could be at fault when the other driver wasn’t even sober. This seems like a clear case of negligence on the other driver’s part. But the insurance company will work hard to avoid paying you, or at least to pay you as little as possible. If they can demonstrate that you did something wrong too, it won’t negate their client’s obvious mistake, but it may reduce the damages they have to pay. And the fact that the other driver was drunk doesn’t mean, for example, that you weren’t speeding or driving with a light out. Even if they can’t prove that in court, they know that not everyone will bother to file a lawsuit, so it’s worth the effort to try denying your claim. Another possibility is that they may make you an offer that’s much too low, claiming that it’s because you were partly at fault, even if you believe you weren’t. At this point, some people may accept the lower offer believing that it’s all they can get.

If you’re thinking that dealing with the insurance company sounds tricky, you’re right! There are a lot of ways you can lose the money you’re entitled to for your injuries. For this reason, we recommend contacting a personal injury attorney before you make a claim, and especially before you accept an offer. They can help you understand how much you should be seeking in damages. Additionally, if you need help with the insurance company, in many cases your lawyer can negotiate with them to secure a settlement for you. In most situations, a settlement can be reached, but if not, you can sue the insurance company and your attorney will represent you in court.

What If The Drunk Driver Was Uninsured Or Underinsured?

Unfortunately, this is another potential difficulty some accident victims run into. While handling the insurance company can be complicated, it can be even more stressful to find out there is no insurance company to file a claim with in the first place!

Another issue is the underinsured motorist. In South Carolina, drivers are only required to carry $25,000 in liability insurance per person and $50,000 per accident. Drunk drivers often cause serious accidents, as both their judgment and reaction time may be affected. As a result, you may have complex injuries requiring a lot of expensive care. If you’ve been going over your bills for such an accident, you probably realize just how quickly you can reach $25,000 in medical costs alone! And that doesn’t even take into consideration your pain and suffering, your lost wages if you had to miss work after being hurt, the cost of repairing your vehicle, or other expenses that may come up in getting treatment. So, even if the insurance company doesn’t give you any trouble with your claim, you may simply find that they’re only obligated to pay you the policy limit, which may be as little as $25,000.

If you’re in one of the two situations listed above, you may think you’re out of luck, but this isn’t always the case. There are other options for recovering your damages:

• Sue the drunk driver directly. This is always an option, but it’s not always a good one. If the driver has significant assets you can seize, your lawyer will probably recommend a lawsuit, as your chances of recovering your damages are good. However, if the driver doesn’t have much in the way of assets, your attorney will probably advise that it isn’t worth the court costs to sue them. There’s no point in spending time and money to receive a judgment in your favor, only for the defendant to declare bankruptcy, leaving you with nothing.
• Sue the bar or establishment that served the drunk driver. This is only an option in some cases. If the other driver was drinking at a bar or restaurant before the accident, and the bar staff served them once they were already impaired, you may have a case against the establishment under South Carolina’s “dram shop” laws. This comes back to the rules about comparative negligence – you only have to prove the bar was at least 1 percent responsible for the crash in order to receive some compensation. How much you will get depends on the percentage they’re found to be responsible for. Bars and restaurants have high insurance requirements for this reason, so you’re less likely to run into a policy limit problem.
• In some situations, you may also be able to sue “social hosts” like homeowners if the driver was drinking at their home prior to the accident. Again, homeowners’ insurance policies often provide more liability coverage than car insurance.

Most people have no way of knowing where the drunk driver got their alcohol, or what happened before they got behind the wheel. It’s also hard to know if the other driver has any assets, especially since they may have spent significant money on their legal defense after being charged with drunk driving. For these reasons, it’s helpful to consult with a personal injury lawyer. Their team will include investigators who can look into both the circumstances of the accident and the finances of the driver who hit you. After gathering more information, your attorney will advise you on your options for moving forward.

Is It Necessary For The Driver To Be Convicted Of Driving Under The Influence?

No. This certainly helps, but the burden of proof in a civil case is much lower than that in a criminal case. The fact is that sometimes criminal charges may be dropped due to a lack of evidence or procedural problems. For example, an attorney for an impaired driver may argue that the law enforcement officers at the scene failed to follow the procedure in how they conducted a sobriety test. If the attorney can provide enough evidence of this to convince a judge, the evidence of the driver’s impairment may be tossed out, and the prosecutor may drop the charges because they don’t have enough evidence to make their case.

Fortunately, in most cases, it is not necessary to prove that the driver was impaired, only that they were negligent, that their negligence contributed to the accident, and that the accident caused you damages. So for these reasons, you should not be alarmed if the driver avoided conviction for their impaired driving.

The one exception is if you are pursuing a dram shop claim – because these claims rest on proving someone overserved a person who was already intoxicated, it will be much more difficult to make a case if you can’t prove the driver was actually impaired. 

What Kind Of Damages Can You Seek For A Drunk Driving Accident?
This depends on your particular circumstances, but here are some potential damages you may be able to seek:

• Past, present, and future medical costs related to the accident, including physical therapy, assistive devices like crutches or wheelchairs, costs of traveling to treatment, etc.
• Lost wages, including sick days or vacation time you had to take after being injured.
• Pain, discomfort, or suffering related to the accident. This includes emotional or mental suffering – such as anxiety, depression, PTSD, insomnia, and other mental health issues – as much as physical pain.
• Loss of enjoyment of life.
• Permanent disability, disfigurement, or scarring. Again, this includes permanent mental disabilities as well as physical ones. For example, some cases of traumatic brain injury (TBI) may result in permanent mental impairment.
• Property damage.
• Any other out-of-pocket expenses associated with the accident, such as paying a house cleaner or home caregiver if you are no longer able to do these things yourself because of your injuries.
• Punitive damages aren’t common but are occasionally awarded in an effort to punish the defendant for their reckless actions.

If you or a loved one have been injured in a drunk driving car accident, please don’t hesitate to contact Auger and Auger Accident and Injury Lawyers for a free consultation. We’re happy to go through the details of your case and explain your options for seeking damages. There’s no obligation. If you do choose to let us represent you, we have a zero fee guarantee – if we don’t win your case, we won’t charge you any fees. Call (800) 559-5741 or contact us online today.