Rear ended by drunk driver: Can I ask for punitive damages?

by naber11 » Mon Jan 06, 2014 02:48 am

I was stopped at a red light when a drunk driver approached at 45 mph behind me, never hit his brakes, and struck my car, pushing my car into 3 other cars. The drivers seat back of my 2001 Toyota Camry failed (broke) and I was slammed down and back in the seat. My head extended over the head rest and my neck was violently snapped backward I was transported by ambulance and suffer a C5 fracture as well as vertebrae dislocation. The drunk was not injured. My orthopedic surgeon (he fixed a broken leg 5 years ago) said my injuries will not require surgery. I will begin PT and chiropractor treatment this week. The drunk is insured by Geico and the property damage adjuster has already called. In reading this forum I understand I can settle for property damages (car) now and hold off settling for personal injury for months/years. The drunk has a drunk driving history. Am I right in thinking Geico will pay 2-3 times the amount of medical bills for pain/suffering? Due to his gross negligence, can I ask for punitive damages from the insurance company or would that be part of a lawsuit? Can I push Geico to pay for future pain/suffering or complications or would that also be part of a lawsuit? Can Toyota be liable for a faulty seat back? Any help would be appreciated.

Total Comments: 2

Posted: Mon Jan 06, 2014 01:05 pm Post Subject:

The drunk has a drunk driving history. Am I right in thinking Geico will pay 2-3 times the amount of medical bills for pain/suffering?



That might be a starting point. Multipliers don't exist in the real world as they are illegal (every claim is different).

Due to his gross negligence, can I ask for punitive damages from the insurance company or would that be part of a lawsuit?


You are correct. It's pointless to ask GEICO for it as part of a settlement as it's not covered by insurance (legally insurance cannot cover punitive damages).

Can I push Geico to pay for future pain/suffering or complications or would that also be part of a lawsuit?



That part of the demand is part of any settlement request, the same as incured medical expenses.

This issue I think you will have is that other people may have injuries as well. Everyone's injuries come out of the other person's bodily injury limits. With prior DUI's I'm betting this other person has minimal limits. Ask the adjuster if they think this other person's limits are going to be enough to address the entire loss. Do you have UIMBI? If so, notify your carrier is this loss.

Can Toyota be liable for a faulty seat back?

They could be... but I doubt it. I doubt it's unreasonable for a seat to fail in your type of situation.

Posted: Wed Jan 08, 2014 03:21 pm Post Subject:

I will begin PT and chiropractor treatment this week.

Is this on the recommendation of your orthopedic surgeon or on your own initiative?

The sad fact about Chiropractors is that they tend to have you come in for treatments two or three times per week, for an extended period of time, simply to inflate their pocketbooks. This is a well-known tradition. Chiropractic is not exactly considered a medical profession, and both insurance companies and juries tend to disregard much of what they bill for.

Can I push Geico to pay for future pain/suffering or complications or would that also be part of a lawsuit?

I think you misunderstand the whole nature of insurance and torts. Your injuries are the result of a criminal act (drunk driving) and negligence (a tort). The drunk diver can be prosecuted by the state for his criminal act. You have to prosecute him civilly for the tort.

Insurance companies only pay damages for personal injuries like yours due to negligence, they do not pay for criminal acts, They also do not pay punitive damages. They do not pay amounts beyond the policy limit of liability. So you cannot ask the question, "Can I push GEICO . . ." and receive a positive answer. This is not at all like workers compensation. Your future pain and suffering is not the insurance company's concern.

And it's not a GEICO thing . . . this applies to all insurance companies. The future is the responsibility of the party that injured you, and that's not the insurance company.

Considering the speed involved, I would suspect that there were additional injuries involved and that the insured's policy limits for personal injury liability will almost certainly be exceeded. In order to recover your damages in this matter, you will almost certainly have to sue the at-fault driver. Your property damage claim for the loss of your vehicle is probably best handled by your own insurance company in this instance as long as you have collision coverage, because the drunk driver's property damage liability limits are surely going to be exceeded as well. In this case, letting your company total your vehicle allows them to subrogate their loss directly with GEICO, and that will be handled seamlessly without any effort on your part. You should get your deductible back (or have it waived thanks to your UMPD coverage).

Accepting any injury settlement from GEICO prior to suing serves to release all claims against their insured, and although your chance of finding additional money in pockets of a drunk are slim to none, that is probably not something you would want to do today. If GEICO tenders the policy limits (or your share of it) to you, you may still claim additional damages against your own un/underinsured motorist bodily injury coverage, if you have it. But at that point, you are done suing the at fault party for any uncompensated amounts.

GEICO's responsibility is to protect their insured only to the policy limit of liability. They do this by OFFERING all injured persons settlement amounts totaling up to the policy limit. You do not have to accept that offer. But to reject that offer means you will have to sue in civil court in an attempt to collect anything. That means attorneys and a loss of 30% to 50% of your eventual settlement off the top in fees to the attorney.

It also means having to figure out how to collect, too, because the insurance company only covers up to the available limit of liability, which might already have been paid out to others. Then where will the judgment proceeds come from?

So unless the at-fault party has unusually high limits (remember, that would cut down on his available drinking money), basically, you're screwed. The only saving grace might be the driver seat failure. Potentially, you could have a product liability civil action against the vehicle manufacturer.

That's even more difficult to prosecute than a drunk driving negligence matter. It will require costly expert witnesses to testify as to design flaws or other issues. The vehicle manufacturer has very deep pockets compared to a drunk, and they may be willing to settle to avoid the time and expense of a trial. Or they will drag you through hell and back to make you go before a jury and take your chance of losing it all. Cases such as those can take years -- five or more -- to even get to the jury stage. How long would you be willing to wait?

That's what all the schlock attorneys who advertise on radio, TV, the Pennysaver, and elsewhere do. They file large civil suits and wait for settlement offers to come in, hoping to avoid trial. Most have never seen the inside of a courtroom at trial in front of a jury. But they rake in 30% to 50% of those settlement checks. And injured persons sometimes end up with less than they would have received by simply taking a check from the insurance company in the first place.

Welcome to the world of tort law.

Add your comment

Image CAPTCHA
Enter the characters shown in the image.