American Wrongful Death Law Report

A CLOSE LOOK AT DRAM SHOP, ALCOHOL SERVER AND DRUNK DRIVER LIABILITY

By Attorney J. Whitfield Larrabee

Attorneys who represent family members of victims who were killed in an alcohol-related accident must find answers several key questions if they hope to achieve a favorable outcome. What caused the accident? What parties are legally responsible for the accident? What insurance coverage is available? What steps need to be taken in order to obtain compensation for victims and surviving family members?

THE NEED FOR A PROMPT INVESTIGATION

When a family retains an attorney in a wrongful death case caused by a drinking driver, the attorney must promptly initiate an investigation. The primary purpose of the initial investigation is to ensure that evidence necessary for the later prosecution of the law suit is preserved. The accident scene should be photographed and videotaped. Witnesses should be located and interviewed. Where a drinking driver was served alcohol at a bar, it is important to promptly interview patrons of the bar to determine whether the driver was obviously intoxicated when he was served. Evidence that the driver was unsteady on his feet, slurring his speech, glassy eyed, or consumed excessive alcohol can be decisive. Evidence that the driver was served alcohol even though he was loud, boisterous, aggressive, vulgar or troublesome can also be evidence of negligence.

Over 20,000 Americans are killed in alcohol-related car accidents every year.

If a prompt investigation is not performed, witnesses at a bar probably will not remember what they were doing on the night of the accident, much less the behaviors of a particular patron. The initial investigation most often affects every aspect of a case and ought to be performed in a thorough and professional manner by a seasoned attorney. In many instances, bars and liquor stores have cameras installed to maintain surveillance of the premises. Where a drunk driver was served alcohol at a bar, videotapes maintained by the bar can be essential to establishing the bar's liability for serving an obviously drunk or under-aged patron. Some cases are based on the bars' or liquor stores' sale of alcohol to minors. In these cases, the bar or liquor store should be notified of the family's potential claim and warned not to destroy videotape or other potentially relevant evidence. A family's ability to obtain compensation will often depend on whether their attorney promptly and effectively investigated the case.

ALL POTENTIAL DEFENDANTS SHOULD BE IDENTIFIED

Another objective of the attorney's initial investigation is to identify every potential defendant that may owe the victim or his family compensation. Success identifying all of the potentially liable defendants and insurers in a wrongful death case depends on the quality of the investigation and the knowledge and experience of the lawyer prosecuting the wrongful death case. The most common defendants to be sued for negligence arising from an alcohol-related accident, other than the driver, are bars, liquor stores and social hosts. If the drinking driver was on the job at the time of the accident, his employer may be liable based on the common law principle that employers are liable for the negligence of their employees committed in the course of their employment. The attorney must also consider the liability of other businesses, such as catering companies, and car rental agencies. Businesses and individuals can be liable in drunk driving cases if they "negligently entrust" a driver with their vehicle. For example, businesses and individuals may be liable for loaning or leasing a vehicle to a driver with a suspended license or a history of drunk driving. In some cases, dangerous defects in a vehicle are a contributing cause of a death in an alcohol-related accident. Unstable sport utility vehicles and vans, defective air bags, defective seat belts, or inadequately protected passenger compartments are some examples of vehicle defects that can cause a death and give rise to the liability of auto makers. Where a driver was served alcohol in a private home, especially in cases involving minors, "social host" liability may attach and recovery can be obtained from homeowner's insurance policies or other assets. In some instances, landlords may be liable if they permitted tenants to hold alcohol related parties at a rental property. A focused and methodical approach to identifying and prosecuting responsible parties is essential to achieve the most possible favorable outcome.

FIND OUT HOW MUCH INSURANCE IS AVAILABLE

Once the potential defendants have been identified, the attorney must identify their insurers and the amounts of insurance coverage that are available under each insurance policy. In most cases, the attorney first must determine the extent of the drinking driver's insurance coverage on the vehicle together with any excess (umbrella) insurance coverage that may be available. The attorney must also determine whether money is owed under insurance policies maintained by the victim or the victim's family members. Coverage is frequently available through uninsured or under-insured motorist provisions in the victim's insurance policy. Of course, it is also important to determine if life insurance policies purchased by victims or their employers provide benefits to surviving family members. Insurers should be notified of potential claims as soon as possible in order to avoid coverage disputes. Where insurers are not promptly notified of claims, they can claim that they were prejudiced by the delay and in some instances will be able to avoid providing coverage for otherwise valid claims. In many cases, the amount of compensation recovered is limited to the insurance coverage available. For this reason, it is critically important that a claim be made under every potentially available insurance policy.

FILE SUIT AND DEMAND SETTLEMENT

After the initial investigation is complete and the potential defendants have been identified, the next step in most cases is to file suit with the most favorable court and to make a demand for settlement on the defendants and their insurers. Filing suit enables the plaintiff's attorney issue subpoenas to compel the defendants and other witnesses to give statements and produce documents with the goal of clearly establishing liability. This is known as the "discovery" phase of the lawsuit. If in the course of discovery evidence pointing to the defendants' liability is carefully developed, pressure on the defendants to settle the case can become very intense. Wrongful death cases result in some of the largest jury verdicts. In cases involving claims related to defendants' alcohol use or distribution, juries are often inclined to award substantial damages for the personal and economic losses of family members and to punish defendants for their reprehensible conduct. Where a spouse or dependant children have lost the financial support of the decedent, utilization of an economic expert to quantify the full extent of the family's loss is important to maximize the potential jury verdict or settlement. Even for middle income families, the death of a working parent or spouse in their prime years will frequently result in millions of dollars in future economic losses which may be recovered in a law suit if the defendants have sufficient assets or insurance. Once the attorney has obtain evidence defendants liability and the amount of potential damages, the attorney must presenting this evidence to defendants and insurers in a powerful manner. The parties settle most cases prior to trial. By professionally communicating settlement demands the attorney will significantly increase the likelihood of obtaining a substantial settlement.

IF SETTLEMENT CANNOT BE ACHIEVED, PREVAIL AT TRIAL

If the parties cannot agree upon a settlement and the discovery phase of the lawsuit is completed, the case will usually be sent to trial. The outcome of the trial is dependant on the strength of the case and on the skill and experience of the family's attorney. Regardless of the attorney's innate ability, there is no substitute for trial experience. Inexperienced attorneys are sometimes afraid to take a case to trial. If the defendant's attorneys sense that the attorney for the victim's family is unwilling to take a case to trial because of a lack of experience, it will be more difficult to secure a favorable settlement offer. Where the stakes in a case are very high, it is sometimes impossible to achieve a settlement until after the trial has begun. In some cases, defendants' attorneys want to see the plaintiff's attorney present the case to a jury before they will make an adequate settlement offer. A trial is a challenging test of an attorney's skill. When the attorney succeeds at trial, the results can be truly remarkable.