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Drunk driving is one of the leading causes of serious car accidents in America. According to the New Jersey Department of Law & Public Safety, drunk driving is involved in 29% of fatal car accidents nationwide. Even when no one is killed, car accidents involving drunk drivers can result in serious injuries, huge medical bills, and severe pain and suffering.

As in any personal injury case, the driver at fault may not have the money to pay for all the damage caused by an accident. Fortunately, a person who has been injured by a drunk driver in New Jersey has several options to receive compensation.

Car Insurance Personal Injury Benefits

Probably the easiest way to be compensated for an injury caused by a drunk driver is car insurance. Car insurance policies in New Jersey are required by statute 39:6A-4 to include Personal Injury Protection (PIP) benefits, sometimes called Medical Expense Benefits (MEB). PIP benefits are available no matter who is at fault for a car accident, and they apply any time the policyholder or his/her household members are injured by a car.

PIP benefits apply even when the injured driver is intoxicated. In Walcott v. Allstate New Jersey Insurance Co., a woman crashed her car while driving with a 0.10% blood alcohol level. She pled guilty to driving under the influence and the defendant, her insurance company, refused to pay out PIP benefits to cover her injury.

The woman sued the insurance company and the Appellate Division of the Superior Court ruled in her favor, reasoning that the no fault coverage system in New Jersey was intended to cover as many accidents as possible regardless of fault. Only those who intentionally injure themselves or commit a crime while fleeing from police are refused PIP benefits.

PIP benefits are available even if the policyholder or household member wasn’t in a car at the time of the accident. As long as the accident is caused by an automobile, a person with car insurance can receive compensation under PIP benefits. So, pedestrians or cyclists who have car insurance can receive PIP benefits if they are hit by a drunk driver.

PIP benefits have their limits, however. First, and most obviously, not everyone has car insurance. While New Jersey requires every driver to carry car insurance, people who don’t have cars don’t usually have insurance. 

Second, PIP benefits come with policy limits. An insured person can choose from limits as low as $15,000 to as high as $250,000. For certain injuries, like brain or spine injuries, PIP benefits must always pay out up to $250,000 even if the policyholder chose a lower policy limit. With how high medical bills can be, it’s possible medical bills from an accident could be higher than the policy limits.

Third, PIP benefits only cover accidents that involve cars. Although this includes most drunk driving incidents, PIP benefits would not cover motorcycle accidents unless they also involved a car.

Finally, PIP benefits only cover what the law calls economic damages. Economic damages include medical bills and lost wages, but not pain and suffering, permanent disability, disfigurement, loss of enjoyment of life, or other less easily-measured losses. So, if an injury is debilitating or especially painful, PIP benefits won’t cover all the costs the injured person faces. To receive non-economic damages, the injured person will have to sue the drunk driver.

Suing a Drunk Driver

If PIP benefits are unavailable or insufficient to cover damages, a person injured by a drunk driver can sue the drunk driver. To win in a personal injury action, an injured person needs to prove that whoever injured them was acting carelessly and the careless action caused his or her injury. A good lawyer can usually win a personal injury lawsuit against a drunk driver because drunk driving is a classic example of negligent conduct.

However, personal injury lawsuits against drunk drivers have their limits too. As in any car accident where PIP benefits are available, a person may only sue a drunk driver for non-economic damages if he or she sustained permanent injuries. Permanent injuries include death, dismemberment, disfigurement, or permanent loss of function in a body part.

The permanent injury requirement for non-economic damages applies even in drunk driving cases. In Woodworth v. Joyce, a driver who was driving with a 0.16 blood-alcohol level was at fault for an accident that injured the plaintiffs. Despite his clear fault, the Appellate Division of the Superior Court refused to let the plaintiffs sue for non-economic damages without proving they were permanently injured.

In some cases, it’s also possible to win punitive damages against a drunk driver.

The law separates damages into compensatory damages, which are meant to compensate the injured party, and punitive damages, which are meant to punish the person who caused the harm. 

Compensatory damages include both economic losses and non-economic losses, like pain and suffering. Punitive damages are not meant to compensate the injured person. Instead, they are awarded to punish the person who caused the harm. In New Jersey, punitive damages are available only when the responsible party acted with a conscious and deliberate disregard for the safety of others.

In McMahon v. Chryssikos, the court ruled that the act of drunk driving does not on its own rise to the level of conscious and deliberate disregard for the safety of others. In this case, a drunk driver rear-ended someone who was waiting at a railroad crossing, pushing his car onto the tracks. The driver barely escaped his car before a train struck and completely destroyed it. Despite the emotional shock of the incident and loss of his car, the court restricted him to compensatory damages.

Another case, Dong v. Alape, illustrates the kinds of circumstances in which a court will award punitive damages to someone injured by a drunk driver. In Dong, the defendant was a drunk driver who struck and severely injured a 17-year-old pedestrian in a hit-and-run accident. The defendant was driving 50 mph and swerving between lanes in traffic that was only traveling 30 mph. He also had a long history of drunk driving and had a tendency to drink until he blacked out and lost control.

In this case, the Appellate Division of the Superior Court thought there were enough aggravating factors to prove the defendant acted with deliberate disregard for the safety of others. While drunk driving alone cannot establish this deliberate disregard, the defendant’s reckless driving before the accident, fleeing from the scene of an accident, and long history of alcoholism and drunk driving demonstrated that he knew the risks of his behavior but still drove drunk.

Collecting Damages Through Insurance

Winning a lawsuit is only half the battle. A court-ordered judgment only helps if the drunk driver can pay it. If the driver happens to have the money, this isn’t a problem. However, it’s often the case that the driver can’t pay on their own. Once again, it becomes an issue of insurance.

New Jersey statute 39:6B-1 requires every driver to carry a car insurance policy that includes at least $15,000 in personal injury liability coverage. A driver can also choose to have up to $250,000 in personal injury liability coverage, but this comes with higher premiums. If the drunk driver’s insurance isn’t enough to cover the verdict (or if they were illegally driving without insurance), then the injured person’s car insurance becomes important.

People who buy car insurance in New Jersey have the option of buying uninsured motorist (UM) and underinsured motorist (UIM) coverage. UM coverage applies if the driver at fault was uninsured or the accident was a hit-and-run where the driver at fault was never found. It pays what the driver at fault would be liable for, up to the policy limits of the UM coverage.

UIM coverage applies if the driver at fault’s liability coverage isn’t enough to cover the damage they caused. When this happens, the injured person will receive in UIM benefits the amount that the driver at fault was unable to pay. So, if the drunk driver owed $45,000 in damages but only had $15,000 worth of insurance, the injured person would receive UIM benefits of $30,000.

As in any personal injury lawsuit, it’s a very good idea to be represented by a lawyer.

An experienced personal injury lawyer can assess the insurance situation early on and usually build a case that will persuade insurance companies to settle without having to go to trial. As a practical matter, this means the injured person ends up with more compensation and does not have to go through a lengthy and difficult trial process.

Suing a Bar or Restaurant

New Jersey statute 2A:22A-5, sometimes called the dram shop law, allows victims of drunk drivers to sue the bar or restaurant where the driver got drunk. If a bar or restaurant served alcohol to a visibly intoxicated person or someone they should have known was a minor, that bar or restaurant can be held liable for injuries caused by the intoxicated person.

Suing the bar where the driver got drunk is a good idea if insurance won’t cover all the costs of the injuries. Holding the bar liable provides an additional source of compensation for a person injured by a drunk driver. 

Liability is usually divided between the bar, the driver, and anyone who encouraged the driver to drink. In Lee v. Kiku Restaurant, the New Jersey Supreme Court ruled that as in all other negligence cases, the jury must divide up fault among all the responsible parties, including the bar. That means the responsible parties pay in proportion to their fault. In the Lee case, the plaintiff’s total award was reduced because he went to the bar with the driver and still got in a car with the visibly intoxicated driver.

Once a lawsuit has been filed against a drunk driver, a lawyer can use the discovery process in litigation to determine whether that person was at a bar before the accident. If this is the case, the lawyer can examine the timeline and track down witnesses to determine whether the bar might be liable for the injuries.

It isn’t always necessary to find an eyewitness from the bar to prove the bar continued to serve the driver after they became visibly intoxicated. In Halvorsen v. Villamil, the Appellate Division of the Superior Court upheld a verdict against a bar even without an eyewitness because the drunk driver’s extremely high (0.278) blood-alcohol content shortly after he left the bar demonstrated he must have been visibly intoxicated long before he left.

Strictly speaking, any organization with a liquor license can be held liable under the dram shop law, not just a bar or restaurant. For example, the hosts of a public event with a temporary liquor license can be held liable for injuries caused by drunken guests if they continued to serve the guests after they were visibly intoxicated. However, this can become complicated depending on where and how the alcohol was served.

In Mazzacano v. Estate of Kinnerman, for example, the New Jersey Supreme Court confirmed that the hosts of an event with self-serve alcohol can be liable for resulting car accidents. In Mazzacano, an athletic club hosted an outdoor fundraiser where guests could pour their own beer from kegs. One guest drank until his blood-alcohol was past the legal limit and later caused an accident that killed him and three other people.

The court ruled that the self-service did not mean the athletic club was immune from liability, but it nonetheless found in the club’s favor because the driver did not seem drunk to other guests despite exceeding the legal limit to drive. This case establishes that even self-service can lead to liability if the hosts don’t prevent excessive drinking, but the plaintiff must still prove the hosts let the guest drink even after becoming visibly intoxicated.

Suing Others for a Drunk Driver’s Conduct

Depending on the circumstances, there may be others liable for a drunk driver’s conduct. If the owner of a car allowed a visibly intoxicated person to drive, the car’s owner can be held liable for negligence. However, if the intoxicated person was the owner of the car, others can’t be held liable for failing to stop them from driving.

In Lombardo v. Hoag, the defendant returned the keys to a truck to the truck’s owner even though the owner was visibly drunk. The plaintiff, who was riding in the bed of the truck, was injured by the truck’s owner. The Appellate Division of the Superior Court refused to let the plaintiff sue the defendant because third parties cannot reasonably be expected to keep drivers out of their own cars. It also noted that the plaintiff was largely at fault for his own injury for agreeing to ride in the bed of a pickup truck driven by someone who was obviously drunk.

In other cases, the host of a social gathering who allows a visibly intoxicated guest to continue drinking can be held liable if the intoxicated guest drives drunk and injures another. New Jersey statute 2A:15-5.6 establishes that any social host who provides alcohol to a visibly intoxicated guest when drunk driving is foreseeable, may be liable for drunk driving injuries. 

The Appellate Division of the Superior Court ruled in Dower v. Gamba that a social host can be held liable for a guest’s drunk driving even when the alcohol is self-serve. If a host makes alcohol freely available to all guests and does not cut off visibly drunk guests, the host may be liable for injuries the guest causes when driving drunk.

A personal injury lawyer can examine all the facts of a case and determine whether other people might be on the hook for damages.

Who Should I Contact if I’ve Been Injured by a Drunk Driver?

If you or a loved one has been injured by a drunk driver, contact Rosenblum Law for a free consultation today. Our personal injury lawyers can analyze the circumstances of the crash and make sure you get all the compensation you deserve. Call 888-815-3649 or email us today.