How to Bring a Civil Suit if you Were Injured by a Drunk Driver
New York is a “no fault” state when it comes to auto accidents. That means that in the case of an accident, each driver’s insurance will pay for (at least a part of) the damages, regardless of fault. This is generally beneficial to all parties involved in an accident. It prevents time-consuming and costly squabbling over who was at “fault” in situations that, most of the time, are either no one’s fault or everyone’s fault.
The insurance company is responsible for paying all medical expenses, 80% of lost wages up to a maximum of $2,000 a month for basic benefits, and incidental expenses (such as compensation for travel to the doctor’s, or household help).
Total benefits of a primary policy are capped at $50,000.
However, the term “no fault” seems painfully misapplied in accidents involving drunk drivers. If a drunk driver injured you, you know exactly who is at fault. Worse, your injuries and the damage to your property may cost well over the $50,000 no-fault cap.
While the drunk driver will face penalties in civil court, this matters little to you. To seek justice, and to ensure that all your damages are covered, you will need to hire an attorney to bring a civil claim against the drunk driver. As with any auto accident, you should not speak with any insurance company – even your own. Instead, contact and retain an attorney.
What to do immediately following an auto accident
Your first steps after an accident with a drunk driver shouldn’t differ all that much from the first steps to take after any auto accident. While it’s important to document the scene, you don’t want to create a hazard. If it’s safe to do so, maneuver your vehicle into a safe position. Again, if possible, you may take pictures of your vehicle’s position in the roadway before you move it from the road. If you can’t move your vehicle, exit it once it’s safe, and get off the road.
If you suspect that the other driver is intoxicated, call the police. Let them handle the other driver and take down license, registration, insurance, and contact information – but do not leave the scene without that information.
If the other driver flees the scene, try to take down the license plate number. Continue to document the scene, taking pictures of skid marks and stray pieces of machinery. Get contact information from any witnesses.
Moving forward: cooperating with the District Attorney
It’s important that you cooperate with the District Attorney, with the police investigation, and with the courts. Preserve evidence, be responsive to the police and the DA, and be sure to attend any court dates of which you’ve been notified. The DA may ask you to provide medical bills. This may seem invasive, but you should comply. Doing so will give the judge a fuller picture of the extent of the damage the drunk driver caused in the accident.
Making a civil claim
The New York State statute of limitations for filing a civil suit after a car crash is three years, the same that applies to most personal injury cases. The statute of limitations for a wrongful death from a car accident is two years from the date of the deceased’s death.
Waiting more than the few weeks it will take to address your immediate and emergency medical needs, however, is inadvisable and, frankly, inconceivable. You have no reason to wait and every reason to act swiftly. The difficulty of gathering evidence and securing witnesses increases exponentially as time passes. Contacting an attorney should be one of your first moves following an accident with a drunk driver.
That said, it will be easier to win a drunk driving conviction in civil court than in criminal court. In criminal court, the burden of proof is higher. In criminal court, the DA must prove the driver’s negligence and inebriation “beyond a reasonable doubt.” In civil court, you need only “a preponderance of evidence.” This is, however, not a reason to delay gathering that evidence.
If you retain a firm that specializes in auto accidents and in suing drunk drivers, they will have a team of investigators to help collect the evidence to build your case. This will include documenting the scene of the accident as well as contacting witnesses and securing depositions.
These investigators can use new automobile and road safety technologies to your advantage. They can download information from newer cars with onboard computers, and use Freedom of Information requests to access footage from the thousands of cameras now in urban areas.
Bringing a claim against a third party
In many drunk driving cases, blame – and legal liability – extends beyond the intoxicated driver involved. New York State recognizes that businesses peddling intoxicants have a responsibility to “cut off” visibly inebriated customers. Failure to do this – called “overservice” – can make that bartender or business owner subject to civil as well as criminal proceedings.
You may wish to bring a civil suit against a bartender or business owner responsible for overserving the driver who hit and injured you. This can get complicated, particularly if the driver went to more than one bar before the incident. However, your attorney will conduct depositions to learn who the driver was with before the incident, what establishments he attended, whether he was a regular at these establishments, who was serving him, and how long he had been there.
Experienced Accident Attorneys in Buffalo NY
The injury attorneys at Andrews, Bernstein, Maranto & Nicotra, PLLC are dedicated to delivering justice for our injured clients. Our entire practice is devoted to personal injury, and we bring to each case our decades of experience, knowledge of precedents and defense strategies as well as medicine and healthcare standards, and an attention divided equally between our clients needs and the finer details of evidence and argument. For some insight into our approach and our reputation, visit our Recent Results page.
If you’d like to explore our firm as an option for your defense, get to know us. Contact us today to schedule a free consultation in our Buffalo or Niagara Falls office. In the meantime, keep exploring the information resources in our video vault and personal injury blog.