Do I share liability after being hit by a drunk driver? 41 Answers as of July 12, 2013

I was sitting on the trunk of a car when an underage drunk driver drove and I fell off and fractured my skull. I lost my ability to smell because of the accident. The girl is being charged with a felony. Her insurance has offered me $50,000 Pain and Suffering. They will not give more because they claim I am partially responsible. I am suing because I must collect the whole 100,000 (the policy's cutoff) so that I can then go to my own insurance claiming underinsured. Can I get the 100,000? Can I prove that I was not liable? How difficult will this be? Will it go to court?

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Law Office of Travis Prestwich, PC
Law Office of Travis Prestwich, PC | Travis Prestwich
Based on the facts you have given me, I cannot see how you could be held comparatively at fault. You should not settle for the $50,000.00. You need to speak to a lawyer immediately about your rights and options and for an assessment of your case.
Answer Applies to: Oregon
Replied: 6/8/2011
Law Office of Michael E. Hendrickson
Law Office of Michael E. Hendrickson | Michael E. Hendrickson
If you're not willing to settle for the $50K that you've been offered and plan to sue for twice that amount, you'll need a lawyer to represent you who can then also address your other questions.
Answer Applies to: Virginia
Replied: 6/8/2011
Bloom Gates Sigler & Whiteleather, LLP
Bloom Gates Sigler & Whiteleather, LLP | Matthew Shipman
Without knowing more details about this accident it is difficult to say whether you would have some liability. For instance, did you know the person was drunk when you sat on the hood of the car. Having said that, even if you did have some liability, based on the severity of your injury, you may still be entitled to the policy limits of the insurance policy. I would contact a personal injury attorney that offers free consultations and get their opinion of your case. Good luck.
Answer Applies to: Indiana
Replied: 6/3/2011
David B. Sacks, P.A.
David B. Sacks, P.A. | David Sacks
Without more information about exactly how the accident happened it is very difficult to assess whether you would be held comparatively negligent. That said, with the damages that you describe, I believe that the 100,000 policy limit should have already been paid. Moreover since it has not and the insurance company has the chance to pay its limit, there is a possibility that you could put the insurance company in a position where there might be a bad faith claim against the insurance company in addition to the claim against the driver. There is much more to discuss however and you should seek the advice of legal counsel before you accept any settlement.
Answer Applies to: Florida
Replied: 6/3/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
That sounds awful, and that can be a terrible loss I have heard. The insurance company may certainly require you to litigate the case to collect the policy limits. Further, with today's jury climate, you have real risks of loss. It sounds as if getting a lawyer would benefit you. Stay well.
Answer Applies to: Alabama
Replied: 6/2/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    You need to hire a personal injury attorney. The insurance companies do not like to negotiate to lay persons but will do so with attorneys. Even with an attorney, however, it may go to trial, it depends on the insurance company, your injuries, as well as other factors.
    Answer Applies to: Illinois
    Replied: 6/2/2011
    Daniel Hoarfrost, Attorney at Law
    Daniel Hoarfrost, Attorney at Law | Daniel Hoarfrost
    As usual, the insurance co. is trying to take advantage of an unrepresented client. I would be happy to meet with you for a free consult.
    Answer Applies to: Oregon
    Replied: 6/2/2011
    The Law Office of Josh Lamborn, P.C.
    The Law Office of Josh Lamborn, P.C. | Josh Lamborn
    It sounds to me like you are represented by an attorney and he or she should have explained all of this to you after an analysis of all of the facts of your case. Without knowing all of the facts it is difficult for me to tell you what the case is worth. Oregon law does compare the fault of the individuals involved in a personal injury case and it is possible that a jury could find that you are more than 50% responsible for your injury, depending on the facts. If the jury found you to be more than 50% at fault you would get nothing. If they found you to be partially at fault but something less than 50% then you would get whatever percentage the other party was at fault of the total payout. For example if the jury awarded $100k and found you to be 40% at fault you would only get $60k of the award. Certainly if you were voluntarily sitting on the trunk of a moving car when an underage person you knew to be drunk drove the car you would share some of the responsibility for your injuries. How much responsibility is the question and only a jury can answer that.
    Answer Applies to: Oregon
    Replied: 6/2/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Hire an attorney. That is who should be addressing your questions. You should ask if the attorney is aware of penal code 1204.2 and its use for restitution.
    Answer Applies to: California
    Replied: 6/2/2011
    Kline Law Offices P.C.
    Kline Law Offices P.C. | Robert C. Kline Jr.
    It sounds like you have a good shot at settling the claim against the drunk driver. I have a similar case now with the same injury. Feel free to contact me if you would like to discuss your questions in greater detail.
    Answer Applies to: Oregon
    Replied: 6/2/2011
    Premier Law Group
    Premier Law Group | Jason Epstein
    The bottom line is that you need to hire an attorney. This is a complicated situation with a lot of moving parts. You need to have someone fighting for you who is an experienced and effective advocate. Depending on the facts, you may be comparatively negligent, but it is impossible to tell given the limited nature of your email question. In order to get to the bottom of this, an attorney will have to really dive into this with you.
    Answer Applies to: Washington
    Replied: 6/2/2011
    Law Offices of Tom Patton
    Law Offices of Tom Patton | Thomas C. Patton
    I had a very similar case, with very similar facts. My client was a girl sitting on the hood of a car when the underage male drunk driver took off and she fell and sustained similar injuries to yours. My client was partially liable, but still received more than $100,000. Whether you are partially liable will depend upon what all of the witnesses have to say, and how credible they seem to be. Whether you go to court will depend upon how much is offered, and how risk averse the parties are. Interestingly, in some jurisdictions, you can still go after your underinsured motorist coverage without obtaining the entire policy limit from the defendant's policy.
    Answer Applies to: Oregon
    Replied: 6/2/2011
    Beaver Holt Sternlicht and Courie, P.A.
    Beaver Holt Sternlicht and Courie, P.A. | Mark A. Sternlicht
    There is a lot more information that is needed to be able to answer your questions. The information includes exactly how the injuries occurred, how bad the driver's conduct was, what happens with her criminal charges, whether your conduct contributed to your injuries, the extent of your injuries, and the amount of your medical bills. There may well be other relevant information, too, and all of the facts are important in analyzing your situation.
    Answer Applies to: North Carolina
    Replied: 6/2/2011
    Law Office of Sam Levine, LLC
    Law Office of Sam Levine, LLC | Sam L. Levine
    That is so awful what happened to you. You need to speak to an attorney, otherwise the insurance company is going to end up short changing you (most likely). I am reachable @ my office or on my cell if you would like to talk or meet in person no obligation. Please take care.
    Answer Applies to: Georgia
    Replied: 6/2/2011
    Law Office of Corey D. Bryan
    Law Office of Corey D. Bryan | Corey D. Bryan
    It depends in which state this accident happened. The insurance co. is most likely arguing you were contributory negligent which means that your negligence contributed to this accident happening. If a jury believes that you were, then you would not recover anything. From the facts I have read in your email I do not believe the insurance company would let it get this far. They would most likely settle but they will not pay you what your claim is worth if they do not have to. I always recommend getting a lawyer involved to maximize your recovery in order to make you whole. I can't tell you for sure that you would get the policy limits of 100,000 because I do not know the facts of the case. Yes, you can prove you were not contributory negligent through witnesses, your own testimony or various medical reports and possibly using experts if need be. I can't tell you for sure whether or not it would go to Court without knowing more about the facts of the case, the medical damages, future pain and suffering, extent of injury. From what you've told in the email; it sounds like a case that the insurance company would want to settle.
    Answer Applies to: Alabama
    Replied: 6/2/2011
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    Help me with the facts. You were sitting on the hood of a car being driven away by a drunk driver and you fell? If you are in NC that might be called contributory negligence and might explain the carriers position, Contrib as it is called is found only in about 4 jurisdictions today. Where are you? And what was your involvement or relationship with the driver? Were you together? Playing around together?
    Answer Applies to: North Carolina
    Replied: 6/2/2011
    Barry Rabovsky & Associates
    Barry Rabovsky & Associates | Barry Rabovsky
    You may have a case, based upon the information that you have supplied.
    Answer Applies to: Illinois
    Replied: 7/12/2013
    Patrick M Lamar Attorney
    Patrick M Lamar Attorney | Patrick M Lamar
    First, it is not absolutely necessary to get the full policy limits. Second, I am not sure I see how you were negligent sitting on a car. I would call a lawyer immediately. It could be difficult and litigation could take as long as two years but it should be worth it.
    Answer Applies to: Alabama
    Replied: 6/2/2011
    Andrew R. Lynch, P.C.
    Andrew R. Lynch, P.C. | Andrew R. Lynch
    You more than most need an attorney now. If you are injured by a drunk driver it allows you to pursue punitive damages (damages to punish the driver instead of to compensate you the injured).
    Answer Applies to: Georgia
    Replied: 6/2/2011
    E. Ray Critchett, LLC
    E. Ray Critchett, LLC | Ray Critchett
    Unfortunately, it is impossible to determine the value of your case and/or assess any potential negligence on your behalf from your posting. I would be more than willing to discuss the details with you when you have time.
    Answer Applies to: Ohio
    Replied: 11/6/2012
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    You probably will not recover the $100,000.00 if you handle it yourself. In some states you do not have to get the full liability amount to go after your underinsured coverage. Remember you may have to subrogate your health insurance depending on the state.
    Answer Applies to: Alabama
    Replied: 6/1/2011
    Ewusiak & Roberts, P.A.
    Ewusiak & Roberts, P.A. | Christopher J. Roberts
    There are a couple of ways to answer your question. First, the fact that you may have also been negligent in sitting on the car (whether your actions were negligent or not would be for a jury to decide if the case went to trial), does not bar your claim in almost any jurisdiction. Most states recognize the concept of comparative or contributory negligence, which allows a judge to offset any recovery by your own percentage of negligence. Moreover, many states recognize that gross negligence (driving a car while intoxicated) is NOT offset by ordinary negligence. You need to speak to a local attorney to determine if your state recognizes this concept. If so, then your fault - if any - could be entirely irrelevant. As far as the value of your case in dollars, that depends on information you do not include in your question. The big questions to be answered are: 1) how much were your medical expenses, 2) how long did you suffer physically and/or mentally from the injury and how severe was your suffering, 3) did you lose wages or incur other financial losses, and 4) do your doctors expect you to have long-term consequences from the injury. Depending on the answers to those questions, your case could be worth well in excess of the $100K limit. And you are very smart to be pursuing your UM coverage as well. You may be reluctant to hire a lawyer because you don't want to reduce your recovery by having to pay an attorneys' fee, but if the insurance company refuses to budge you may have no choice. Given that you have already negotiated up to $50K, you should try to negotiate with a lawyer and ask that he/she take a fee only on an amount in excess of what you've already been offered. Good luck.
    Answer Applies to: Florida
    Replied: 2/21/2012
    Law Office of Russell D. Gray, PC
    Law Office of Russell D. Gray, PC | Russell D. Gray
    Your case is probably worth more than the $50,000 you've been offered so far. However, the question of your liability is a complicated one, and you will probably need legal representation before the question can be answered. I would be happy to help you.
    Answer Applies to: Utah
    Replied: 6/1/2011
    Ramunno & Ramunno, P.A.
    Ramunno & Ramunno, P.A. | Lawrence A. Ramunno
    If you cannot settle, then you will need to sue. If your case still does not settle during litigation, a jury will have to decide, whether or not you share liability and how much your claim is worth?
    Answer Applies to: Delaware
    Replied: 6/1/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Sounds like you are already represented and you should ask your attorney.
    Answer Applies to: Connecticut
    Replied: 6/1/2011
    David F. Stoddard
    David F. Stoddard | David F. Stoddard
    Since you are suing and know everyone's policy limits, including your own underinsured coverage, I assume you are represented already by an attorney. He/she knows your case better than me. If the girl who caused the accident was your friend, if you both drinking, it is a much different case than a case where a stranger hits you with his/her vehicle. You did not give me much details regarding damages. How much are your medical bills, how much is your lost income? How has the accident changed your life? Whatever the answers to these questions are, and they are very important to how much the case is worth, your case is probably worth less if the at fault driver was your friend. This does not mean the case is not worth the policy limits if you were severely injured.
    Answer Applies to: South Carolina
    Replied: 6/1/2011
    Howard W. Collins, Attorney at Law
    Howard W. Collins, Attorney at Law | Howard W. Collins
    I do not understand from your statement of facts what, if any, relationship the drunk driver and you had to lead anyone to think you were liable. Were you sitting on the trunk of the car the under aged driver drove? If so, why in the world did you stay on the trunk of the car when she got in to drive? You see, there may be a perfectly good explanation; but I cannot figure out enough from your facts to really help you.
    Answer Applies to: Oregon
    Replied: 6/1/2011
    LT Pepper Law
    LT Pepper Law | Luke T. Pepper
    You can probably prevail but you will need to come for a consultation. There are a couple of issues to sort out and more facts will need to be sorted out.
    Answer Applies to: Pennsylvania
    Replied: 6/1/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    You certainly need an attorney to get what you are entitled to. Insurance adjusters are notoriously unfair to people representing themselves. Don't sell yourself short. Visit me at my website to discuss.
    Answer Applies to: Michigan
    Replied: 6/1/2011
    Magnuson Lowell P.S.
    Magnuson Lowell P.S. | Richard S. Lowell
    It is true that you may share some of the responsibility. I would need to know some more facts to make that assessment. For example, did you know the driver was going to drive off while you were sitting on the trunk - or was that a surprise? However, even if you are partially responsible, the percentage deduction comes off the total damages - not the driver's policy limits. In other words, if you were 50% at fault - that 50% deduction would be applied to the total amount of your loss. If a jury was to determine that you suffered $300,000 in damages, you would be entitled to $150,000. You definitely need to consult with a qualified personal injury attorney. Please feel free to give me a call for a free consultation.
    Answer Applies to: Washington
    Replied: 6/1/2011
    Law Office of William Justice Whitaker
    Law Office of William Justice Whitaker | William J. Whitaker
    From the facts you stated, it appears you are not liable at all and the insurance company is not offering you the full amount because you do not have an attorney and they know the average person does not understand the law as well as an experienced attorney. In addition, a trial has lots of procedural matters that the average person does not know and if not done properly can be used against you at trial. Also, trials can be very expensive as medical experts will need to be called and questioned at trial to adequately establish any damages you claim. Attorney's pay these costs and only recoup them if they win your case. Also, if the girl had greater than a .15% BAC at the time she caused the accident you may also be entitled to "punitive damages" which would greater increase any potential award you may receive at trial. From the facts you state your case is worth considerably more than the $100,000.00 policy limit of the girl and you may be able to recover from your insurances "underinsured" policy as well. I would be happy to discuss this matter further with you as I would need more details before I could give any further legal advice. Feel free to contact my office and speak with me regarding this matter.
    Answer Applies to: Virginia
    Replied: 6/1/2011
    Shulman DuBois LLC
    Shulman DuBois LLC | Joshua Shulman
    It's impossible to know if you can get the $100,000 without seeing all your medical records, and talking to witnesses, etc. But from what you've said, my best guess is that you should be able to get the entire $100,000, and maybe more as well, with punitive damages. If you'd like to talk more about it, feel free to call me.
    Answer Applies to: Oregon
    Replied: 6/1/2011
    Tenge Law Firm, LLC
    Tenge Law Firm, LLC | J. Todd Tenge
    You should be able to get much more than 50000 with the right lawyer. Please call us.
    Answer Applies to: Colorado
    Replied: 6/1/2011
    Law Office of Ronald Arthur Lowry
    Law Office of Ronald Arthur Lowry | Ronald Arthur Lowry
    If you were just sitting there minding your own business and had no knowledge that the underage drunk driver was going to drive off, then I see no liability on your part and the question is one of what is the value of your injury alone. But I suspect there may be more. Why did you not notice when the driver started the car? Had you been drinking yourself? I think you need an attorney who is an expert at personal injury claims immediately. Offering less than the policy limit even if it is all owed is a common insurance company tactic. And yes, it may go to court.
    Answer Applies to: Georgia
    Replied: 6/1/2011
    Law Offices of Joseph I. Lipsky, P.A.
    Law Offices of Joseph I. Lipsky, P.A. | Joseph Lipsky
    We are sorry to hear of your situation. From the tone of your inquiry, it does not sound like you've hired an attorney. Given the seriousness of your injuries, we believe you should consult with an attorney experienced with serious car accident cases such as yours. From the facts as you describe them, we certainly would think the value of your claim exceeds the offer you mentioned. However we would like to see all the relevant Documents to be able to make an fully informed evaluation. Our office provides free, no obligation consultations.
    Answer Applies to: Florida
    Replied: 6/1/2011
    Allen Murphy Law
    Allen Murphy Law | W. Riley Allen
    You don't have an easy case. It will need to be proved, though the idea you also were negligent is ridiculous.
    Answer Applies to: Florida
    Replied: 6/1/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    In my opinion, you should clearly retain a personal injury attorney ASAP to help you as to all your rights and options, after discussing ALL the facts and circumstances. Good luck!
    Answer Applies to: Georgia
    Replied: 6/1/2011
    Aronberg & Aronberg, Personal Injury Law Firm
    Aronberg & Aronberg, Personal Injury Law Firm | David T. Aronberg
    I would be happy to discuss your case with you. It would be best to talk over the phone - please call my office. Thank you and I look forward to speaking with you.
    Answer Applies to: Florida
    Replied: 6/1/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    You may have a MAJOR case. Loss of smell is a sign of traumatic brain injury. I don't see fault for just sitting on a car's trunk. Do you have counsel? If not, feel free to check out my web site and contact me. If your insurance is more than $100,000 you must sue to get the other driver's full policy (unless they give it to you in pre-suit settlement) so you can pursue your own insurance.
    Answer Applies to: New York
    Replied: 6/1/2011
    Rose, Senders & Bovarnick, LLC
    Rose, Senders & Bovarnick, LLC | Paul S. Bovarnick
    If you are suing, then you probably have a lawyer and should ask her or him. If you have a lawyer, then depending on the extent of your injuries, and the extent to which you know that the driver might drive away while you were sitting on the car, you may well be able to recover $100,000 or even more. However, the answer to your question depends on a lot of facts which are not in your e-mail.
    Answer Applies to: Oregon
    Replied: 6/1/2011
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