Our client, a real estate professional, was on the way to a Currituck seafood restaurant on a weekend evening. His girlfriend was his front seat passenger. While nearing the restaurant, an approaching pickup truck failed to negotiate a curve in the roadway and struck our client's vehicle almost head-on at over 35 miles per hour, smashing the car and spinning it violently before both vehicles came to rest with massive damage. Our client was unable to extricate himself from the car due to major injuries and the rescue squad removed him from the vehicle and transported him and his girlfriend to Sentara Norfolk General Hospital for traumatic injuries. Meanwhile, the police did field sobriety testing which revealed that the pickup driver was likely drunk, and later blood testing at the hospital found a .20 alcohol level in his femoral blood. He was charged with driving while intoxicated (DWI) under North Carolina law and ultimately pled guilty to the charge months later. The drunk driver's guilty plea also resulted in the suspension of his North Carolina license and the requirements of participation in an alcohol safety program.
Our client suffered a hip fracture and a fracture of a vertebral body in the spine. The doctors thought that the hip fracture could heal on its own but he could not walk at all under his own weight for what would be at least a month. The significant injury prevented his work in the real estate field and he therefore incurred significant lost earnings. Our client was first treated with home health care, was using a rolling walker or wheelchair, and then later had extensive physical therapy. He was unable to earn anything for four months and then was able to earn reduced income for the next six months thereafter.
KEY LEGAL STRATEGY
In a civil case involving personal injuries caused by a drunk driver in North Carolina the drunk driving guilty plea established that the driver admitted responsibility for causing the crash and our client's personal injuries.
When a drunk driver pleads guilty in court, whether in North Carolina or Virginia, it relieves us of having to prove negligence on that driver. But that driver and the insurance companies often contest the amount of compensation which should be paid to our client and here the amount of our client's personal injury recovery was intangible and contested. For example repayment of all medical expenses was the starting point. We also sought the lost earnings our client incurred, but our client rightly sought a significant amount for pain, suffering, and impairment because of the injuries to his hip and the massive interference with his daily living activities as well as his job.
We wrote a demand letter to the insurance company representing the drunk driver and presented all available information, including pictures from the scene, medical records and bills, information to back up the lost earnings claim, and ultimately one insurance company for the drunk driver offered its policy limits of $50,000.00 which was the full amount of that one company's policy limit, but there was additional underinsured motorist coverage ("UIM coverage" ) available because our client had prudently taken out significant car insurance himself well prior to this incident.
Because the accident happened in North Carolina, there was a requirement that we not only analyze drunk driving laws in North Carolina but also analyze the North Carolina law of uninsured motorist coverages, and how the fact that the policy of our client was issued a significant Virginia uninsured/underinsured policy would apply. We completed our analysis and concluded that there was adequate underinsured motorist coverage through our client's own policy and I always point out to clients that an insurance company cannot raise one's premiums for making a claim under an uninsured/underinsured coverage
Another issue that comes up in drunk driving personal injury cases is the fact that punitive damages (punishment damages) may be sought in drunk driving/intoxication cases in both North Carolina and Virginia. In fact, the drunk driver had already pled guilty meaning he had admitted he was drunk. North Carolina allows punitive or punishment damages if an injured party proves certain aspects required under the North Carolina punitive damages statute. We believed that we would be able to prove a claim for punitive damages in this case and we demanded punitive damages in addition to personal injury compensatory damages.
Unfortunately we had to go forward with suit against the drunk driver in order to obtain any part of the uninsured motorist coverage under our client's own policy. The way the law works is a different attorney represents the uninsured policy coverage (under our client’s UM policy) and actually acts adverse to our injured client, essentially representing the drunk driver. After the suit was filed we conducted the deposition of the drunk driver who readily admitted that he was drunk, that he never should have been behind the wheel of his pickup truck in this circumstance, and that he realized that he could have killed our client because he was intoxicated out of control by his own admission.
When we were retained we checked out the public Facebook page of the drunk driver and he had many posts on his Facebook page glorifying drinking. Even glorifying binge drinking. We shared this downloaded information with the driver during his court deposition and he admitted that he had posted those things on his Facebook page which he said he thought were funny. On the other hand, he stated that he had learned his lesson and would never drink and drive again in the future.
Ultimately, we settled with the uninsured motorist coverage attorney representing the drunk driver for an additional $150,000.00 yielding a total settlement of $200,000.00 on behalf of our client. Fortunately, our client had not required any medical care in the year prior to the settlement and had recovered as well as could be expected after suffering a fractured hip.
$200,000.00 gross settlement.
Currituck County Superior Court, North Carolina
Richard N. Shapiro, Attorney
Randy Appleton, Attorney
Law Firm Staff:
Paula M., Becky W. paralegals