If you’ve been injured in a car accident caused by a drunk driver in Virginia, you might expect the at-fault drunk driver’s insurance company or your own insurance company (if uninsured or under insured motorist coverage is applicable) to fairly compensate you for your injuries and damages. Unfortunately, that’s rarely the case. Insurance companies are businesses that make money by minimizing how much they pay out on claims, rather than by compensating you fairly.
At Bordegaray Injury Law PLLC, we’ve seen firsthand how insurers take advantage of people after drunk driving accidents. Here are two common tactics insurance companies use and how you can protect yourself.
1. Making Early Settlement Offers Before Information about Blood Alcohol (BAC) is Available
Insurance adjusters often make early settlement offers in Virginia drunk driving accident cases before the victim can discover the drunk driver’s blood alcohol level (BAC). Typically, courts and police will not release information about the drunk driver’s BAC until after the criminal court trial or plea arraignment has taken place. It can sometimes take 3 to 6 months for the criminal charges to get resolved.
Insurance adjusters try to take advantage of you by getting you to settle your drunk driving accident case while the criminal charges are still pending. The adjuster hopes to settle before you have sufficient information to fully investigate and evaluate a punitive damages claim. As explained below, the drunk driver’s BAC can have a huge impact on the settlement value of a claim
When an adjuster offers to settle with you early while the criminal charges are still pending, the adjuster will rarely offer you fair value for your claim. The adjuster will rarely offer you any extra compensation for punitive damage and will rarely even acknowledge that the drunk driver would be liable for punitive damages. Ultimately, the adjuster hopes to settle the claim without having to offer anything extra for punitive damages.
As explained below, punitive damages can significantly impact the value of a drunk driving injury claim. Settling a case early before punitive damages can be evaluated can be a huge mistake. You could be settling your case at a huge discount.
2. Using Your Lack of Legal Knowledge About Punitive Damages Against You
Insurance adjusters take advantage of you by using your lack of legal knowledge against you. Many Virginias do not know that Virginia automobile liability insurance policies, including uninsured and underinsured motorist policies, typically cover punitive damages arising out of negligent or willful or wanton conduct, but not intentional conduct, of a drunk driver. Many unrepresented drunk driving victims do not ask for compensation for punitive damages because they do not know that there is coverage for it. Rarely will the adjuster inform an unrepresented person that punitive damages are covered under the policy and invite the person to make a demand for punitive damages.
Why Punitive Damages are Important to Consider in a Drunk Driving Accident Claim
A drunk driver’s BAC can have a significant impact on the value of a claim or of what a jury might award for damages. Virginia Code Section 8.01-44.5 allows for a jury or judge to award punitive damages against the drunk driver when the drunk driver’s BAC is 0.15 or greater or if the drunk driver unreasonably refused to submit to a blood alcohol test pursuant to Virginia Code Section 18.2-268.2. A jury may award up to $350,000 in punitive damages to punish drunk a driver for acting egregiously pursuant to Virginia Code Section 8.01-38.1.
In some instances where the BAC is below 0.15, common law punitive damages may be awarded if the drunk driver acted willfully and wantonly. Willful and wanton conduct has been defined as “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Cowan v. Hospice Support Care, 268 Va. 482, 487 (2004).
Factors to consider whether a drunk driver’s conduct was willful and include: previous DUI convictions; previously completing alcohol safety classes such as VASAP (Virginia Alcohol Safety Action Program); being under the influence of other substances; committing a criminal act such as fleeing from police at the time of the crash; and how recklessly the drunk driver was operating his or her vehicle. Proving common law punitive damages can be quite technical. For that reason, it is important to consult with an experienced drunk driving accident attorney to evaluate whether you have a claim for punitive damages.
It is important to note that punitive damages are meant to punish the drunk driver for his or her conduct and to deter others in the community from driving while intoxicated. Punitive damages are based on the drunk driver’s conduct, rather than the victim’s injuries or damages. When negotiating drunk driving accident claims, insurance adjusters will frequently try to base their settlement offer solely on the injuries and pain and suffering of the victim rather than the conduct of the drunk driver. In certain cases, the victim’s injuries could be modest, but the drunk driver’s actions could be particularly outrageous where a jury might award much more money for punitive damages rather than for compensatory damages to the victim.
How to Protect Yourself if Injured by a Drunk Driver
If you have been injured by a drunk driver, it is highly recommended that you consult with an experienced drunk driving accident attorney to protect your rights and make sure that insurance companies do not take advantage of you. An experienced drunk driving accident attorney can evaluate whether you have a valid punitive damages claim against the drunk driver. An experienced drunk driving accident attorney can also investigate the drunk driving accident and obtain evidence such as police body cam footage, police reports, and BAC certificates of analysis.
If you have been injured in a drunk driving accident in Virginia, contact Bordegaray Injury Law PLLC at 757-505-HURT (4878) or go to our Contact Us page to schedule a free consultation.
