Drunk Driver Totalled My Car & My Neck!
January 2, 2007 3:19 PM   Subscribe

I was rear-ended pretty hard by a drunk driver while I was driving. I will have medical bills that are pretty high, and my neck will probably be messed up for months (at least). Will the insurance companies pick this up sufficiently, or should I seek legal counsel, who wants 1/3 of the recovery? This happened in Kansas. Anyone who has been through this type of situation, please help!!

I was driving my 1991 Volvo down a 1-way street, late at night in a light rain when I slowed & signalled to drop off my friend at her apartment. Neither of us had been drinking. We did not see the car approaching us before it hit us so hard my car was thrown over the curb, 20 feet into someone's yard. Both the driver and the passenger of the other car were very drunk. Both of our cars were totalled--hers is completely fucked, but mine is drivable...there is body panel damage and the trunk is no longer operational. She drove a 1998 Ford, belonging to her father, as does her car insurance.

She tried to lie to the officer, saying that I slowed down really quickly and then hit her with my car, but instead of asking her to elaborate on how that would be possible, the officer took her to do field sobriety tests, which she failed. She went away in handcuffs and I went to the hospital.

The guy who was her passenger seemed pretty unattatched to her--he basically just walked away when the police released him from the scene. There were beer cans and an open bottle of whiskey in her car. Anyway, she had no idea what happened. The next day she was with her mother at the towing lot, insisting that the towers caused the damage to her vehicle because she had just "bumped" my car a tiny bit.

Anyway, my neck is pretty fucked and I have had a lousy New Year's because of this. Kansas being a no-fault state, I need $2000 in medical bills to sue, which I'm rather sure I already have. I am wondering if representation would really help me here, or if I should just accept whatever settlement I am going to get from the insurance companies involved. Bonus question: my car is still perfectly drivable. I intend to keep driving it. The trunk is fucked...anyone know how to get Volvo panels for cheap and/or how to work with the insurance companies to get maximum damages for a totalled car that I will be keeping?
posted by Fisherkitty to Law & Government (34 answers total) 1 user marked this as a favorite
Fisherkitty won't be able to access the internet tonight past 6, so I'll (fiance) field questions as best I can past then.
posted by Derive the Hamiltonian of... at 3:26 PM on January 2, 2007

I would recommend seeking counsel for this. They will screw you, of course, but they will also help you get all that you're entitled to, which may be way more than $2k depending on the extent of your injury.
posted by tristeza at 3:26 PM on January 2, 2007

'No fault' doesn't usually apply in situations where one of the parties was clearly intoxicated. Of course, often, neither does their insurance.
posted by jacquilynne at 3:36 PM on January 2, 2007

I had a similar experience a few years ago, though in my case it was a hit-and-run. (The guy was eventually caught and paid a $75 fine for being found guilty.) The car was totaled, and my neck hurt terribly, and worse the next day.

Get medical attention for your neck. An osteopath fixed my neck in two sessions, and I recommend that path highly. Your health insurance will cover the bulk of the cost, and you'll get that deductible back once there's a settlement. Find yourself an attorney to take care of the settlement. Not an ambulance-chaser, just your basic attorney.

You may legally collect the total damages from both your insurer and her's. Don't, because it's immoral. An accident is not a windfall, and insurance is not the lottery -- its purpose is to make you whole. So go get yourself whole.
posted by waldo at 3:39 PM on January 2, 2007

Response by poster: She had full coverage and they have to pay for my car. But I don't understand the implications of "no fault" other than the fact that I need $2000 in medical bills, which my insurance pays, in order to sue her. My insurance pays up to $4500 and her insurance pays any amount after that.
posted by Fisherkitty at 3:40 PM on January 2, 2007

I would at least get the car looked at to make sure there's no major damage to the frame... You don't want to mess around with that.
posted by ganzhimself at 3:42 PM on January 2, 2007

If she's going to fight it you need an attorney. Your insurance company may give you one. If they don't ask around your friends and family for referrals to independant counsel. Either way the insurance company should take care of the car repair. That's what you pay them to do, make them do it.

And don't stress the fact that she's insisting it wsan't her fault. I was once hit by a guy who was dirivng on the wrong side of a divided road. He too refused to admit liability at first and his insurance refused to settle. That decision cost them quite a bit in the long term. I had (top notch) independant counsel and medical reviews.
posted by fshgrl at 3:43 PM on January 2, 2007

I would also recommend getting a lawyer. Don't sign anything from the insurance company and don't say anything to anyone who might call you until you've done so. I'm not trying to scare you, but if you tell someone on the phone that "you're feeling better" or some such it will come back to haunt you.

My fiance is still dealing with the aftermath of a nasty rear-end collision from two years ago. He successfully got his bills paid with an attorney's help. The attorney was able to get the doctors, etc. to sign liens against the settlement so they basically were all satisfied with the amount that was won.

Something we learned is that the lawyer is not a doctor and cannot give you any medical advice or recommend particular doctors to see. Or at least they shouldn't. You might use this to weed out the real ambulance-chasers.
posted by cabingirl at 3:44 PM on January 2, 2007

Response by poster: waldo:
I'm in limbo until I know what will be covered by insurance. I plan on getting treatment, and thank you for the suggestion. I have a referal to a holistic specialist who I think is an osteopath (will have to ask again), but I cannot afford any kind of treatment until I know it will be paid for. We had to pay $300 to get my car back from the towers the police called, and this is the worst time of year to be spending savings as the spring semester is just around the corner. I want to collect the amount of insurance I am owed for the damages to myself and my car, from whichever insurer. Preferably hers. After that, I want to sue her as a punitive measure - she wasn't in jail for more than a few hours before her mom bailed her out, and so far neither she nor her family have showed any remorse for her choice to drive drunk and the results. I may be proved wrong, but I have the feeling that she and her family are not the kind of people to accept responsibility for this kind of thing.
posted by Fisherkitty at 3:51 PM on January 2, 2007

File a claim against her insurance. Alternately, talk to your insurer about having them do it (your insurer filing the claim for you). Make it large: the car, your medical bills, future expected medical bills, and any other expenses incurred. Include copies of all available documentation, such as medical reports and police reports.

Her insurance will get back to you. They will either:

--offer zero or an insultingly small amount, in which case you need an attorney
--offer a large amount, in which case you should consider whether an attorney is likely to get you sufficiently more as to be worth the cost.

But either way, you can file a claim against her insurance on your own. (If Kansas is indeed a no-fault state, you might be filing a claim against your insurance, not hers (and then your company will go behind the scenes to recover from her company). Talk to your insurance company.)

Your insurance company is likely to provide a quick, small amount of money pending a larger settlement, if you ask them. Have you talked to your insurance company?

Did I mention that you should talk to your insurance company?
posted by jellicle at 3:59 PM on January 2, 2007

I believe Volvos are designed to crunch, thereby absorbing much of the force - if you look at the quarter panel, you'll see that it's part of one huge piece that includes the roof - not easily replaceable. Even if the frame is OK, which it probably is, insurance is going to "total" your car - costs for bodywork would be way more than the value of the car. I know this because we've owned three Volvos, and the last one (1991 240) was damaged when some dork backed into the left rear side. Trunk and rear door still functional, just cosmetic damage, but ins. co. still totaled it. I just took their payment and demanded that I retain the car, albeit with a salvage title. My Dad managed to pop out the panel somewhat, and I replaced a couple of trim pieces.

If you don't know of any good Volvo mechanics in your area, post some pics and your sad story on the Brickboard.com forums. They'll be able to give you recommendations - for mechanics, if you should try to keep the car based on the damage, etc... Very helpful folks in general.
posted by Liosliath at 3:59 PM on January 2, 2007

First thing's first here... get well. Before you know the extent of your injuries, you have no way of knowing what kind of compensation will square you. Do not rush into a settlement. Necks and backs are funny, fragile parts, and what might not bother you now could be worse a few months from now.

What the other driver says or doesn't say really isn't all that relevant. It should be pretty clear to anyone reading the police report that she was at fault. She made those claims at the tow yard because she was trying to save her butt in front of her mom, not because she was testifying.

Re: your car... are you absolutely sure you don't want to use this opportunity to trade up? If the frame's bent, it's probably not worth keeping. Keeping it could be a lot more trouble than it's worth just from a logistics standpoint... They'd cut you a check for the value of the car, then you'd have to turn around and negotiate a price to buy it back.

If you are worried that the book value doesn't reflect its actual value to you, you can always negotiate the price. Just as an example, if they offer you $1000, but all of the comparable cars in your area are selling for $1500, collect those ads and show them to the adjuster and use them as leverage to get them to raise their offer.
posted by MegoSteve at 4:10 PM on January 2, 2007

Try telling your story to a newspaper reporter, if you can find a friendly one. Nothing gets godfearing newspaper readers riled up more than drunks on their roads, endangering their lives, and getting away with it.
posted by GaelFC at 4:13 PM on January 2, 2007

I got over 2Gs in compensation for my 91, if that helps. MegoSteve is right, use Craigslist etc... for an idea of what it would cost to buy another 1991.

Also, their insurance company initially gave me some ridiculous lowball offer, and I just laughed and gave my lawyer their number.
posted by Liosliath at 4:13 PM on January 2, 2007

Oh, yeah, and what jellicle said. Your first call upon getting home from your accident should have been to your insurance company. (Or, at least, your first call during their next available hours of operation.) The theory is that you are paying them to guide you through this process.

Of course, if they are the ones stuck with the bill, they could turn into your adversary, not your advocate. At that point, you'd need to get a lawyer to act as advocate for you.

Did you talk to them yet?
posted by MegoSteve at 4:20 PM on January 2, 2007

A "doctor" will either have an M.D. behind their name, or D.O. The latter is a Doctor of Osteopathy.
posted by notsnot at 4:25 PM on January 2, 2007

She's talked to two lawyers and she filed with her insurance today when they re-opened after the holiday. The first (a good friend whose chinese buffet side business we often eat at) wants to represent her. I'm not actually sure if the buffet owning lawyer is going to take a cut, knowing the guy I'd assume he'd do this pro bono. She also contacted an injury and accident lawyer, I think that's the 1/3 cut mentioned.
posted by Derive the Hamiltonian of... at 4:30 PM on January 2, 2007

GaelFC: Yeah, she actually knows a bunch of people (journalists, managers) at the LJ World and has already contacted them. No word on a story yet...
posted by Derive the Hamiltonian of... at 4:32 PM on January 2, 2007

Regarding the damage to your vehicle, the adjuster is compelled by law to give you the fair market value minus depreciation, and no more than that. They have to indemnify you, but you can't benefit from an accident. If you think that your car will be safely drivable and you want to keep it, then by all means, see if you can retain the salvage title.

Regarding your medical bills, if the tortfeasor has Bodily Injury coverage (which is required in Kansas) and she is found at fault by her insurance company, then once your PIP (Personal Injury Protection) is exhausted, her BI should kick in to pick up your medical expenses up to her limits (the minimums in Kansas are $25,000 per person and $50,000 per accident total, but her parents' limits may be higher than that). Kansas is indeed a no-fault state where medical coverage is concerned (hence the required PIP coverage), but someone is always at fault in an accident - the term 'no-fault' can be misleading. Basically it just means that your PIP initially pays for your injuries regardless of fault. However, if her insurance company denies your claim because they find that she wasn't negligent (which doesn't seem likely in this case), that's the time to get an attorney. Chances are, her coverage will kick in if yours is exhausted and your expenses will be covered.

Of course, I'm speaking as an Insurance Agent with a pretty strong Claims background, and I think that people obtain attorneys too quickly because they don't really understand how insurance works. You may be entitled to compensatory damages for loss of use, which should be covered by the other person's company if you're filing through them (they should provide you with a rental car, for instance) or it will be included in your insurance company's subrogation process if you're filing through them for damages.

You also mentioned suing as a punitive measure. I was under the impression (perhaps mistaken) that the Kansas Constitution prohibits any award of punitive damages (further, Kansas isn't a Tort state, which limits your ability to sue for that reason).
posted by mewithoutyou at 4:42 PM on January 2, 2007

Having worked for Farm Bureau in Kansas, I can probably tell you a bit. First, get to the doctor. It doesn't matter if it's paid for right now or not. You'll need the medical records for the insurance claim and your neck is extremely important.

In Kansas, your insurance will cover medical costs. Check with your agent about PIP coverage. If she's found at fault -- and if she was cited for DUI she probably will be -- her insurance will pick up the cost once your PIP runs out.

The insurance companies should be the ones to fight this out, if I'm remembering my insurance correctly. The case might end up in subrogation but that's highly unlikely, as this seems pretty clear-cut (she was driving under the influence). Basically, at this point your insurance agent should really be able to help you out. If your agent doesn't help, find another agent with the same company who will.
posted by smashingstars at 4:55 PM on January 2, 2007

Or, you know, what mewithoutyou said. And I think mewithoutyou is correct, that there are serious limitations on being able to sue for punitive damages here in Kansas.
posted by smashingstars at 4:57 PM on January 2, 2007

You are getting good advice to talk to your insurance agent. And getting medical attention. Now, relax and let things start to move. If the police report backs up the facts as you know them then you will be fine. There is plenty of time to find out if you need an attorney.
posted by JayRwv at 5:01 PM on January 2, 2007

She'd really like to keep the car. She named it "The Bride" (because it is white and she loves those movies) as soon as she got it, and has been cooing over it since. We did get it in great condition for $500 from a couple moving in a hurry, and I've had a lot of luck learning how to do work on my 940 wagon and her sedan, and it did survive with body panel damage when the other car had its radiator and bumper plastered onto the engine. I'm sure another white 240 would eventually be accepted, but she really, really wants to keep this one and won't accept any used car except another Volvo, especially after the accident. Honestly, I wouldn't want to give up "Molly" under the same circumstances. We'll make sure to get hers checked out at Das Autohaus. Local market value seems to be much higher than the blue book value - Volvos are popular with the hipsters. So, if we do end up replacing The Bride, we're definitely going to have to wrangle with the insurance company for the extra money unless I can dig up another $500 deal. Any advice on salvage titles and insurance for such a car?

The drunk girl's breathalyzer result is not publically available yet (I'm not sure why), but the police report puts the blame on the drunk girl, both for being a drunk driver and for causing an accident that would have been her fault if she was sober.
posted by Derive the Hamiltonian of... at 5:18 PM on January 2, 2007

"I would also recommend getting a lawyer. Don't sign anything from the insurance company and don't say anything to anyone who might call you until you've done so. I'm not trying to scare you, but if you tell someone on the phone that 'you're feeling better' or some such it will come back to haunt you."

Let me just second this. (Been there, done that, have the reams of paperwork to show for it.) In my experience the insurance companies (yours and theirs) will try very hard to get you to settle prematurely. Do not sign or settle anything yet as there are clearly some injuries that will take a while to get figured out.
posted by litlnemo at 5:46 PM on January 2, 2007

regarding the car: Look into salvage titles. If they total the car, you can always get it back under salvage. You have to make the car "road worthy" and have it inspected by a KS state cop I think. Google for more info.

regarding the injuries: See a doctor now. Don't wait and ask what is covered -- it will be covered under her insurance or yours. Tell your insurance you are injured and need to seek more treatment to make yourself whole again. They'll give you a claim number. Tell the doctor its a MV accident insurance claim. Let them fight her insurance. If you are denied coverage... that's an entirely different AskMe I think. Don't wait to seek treatment. Go tomorrow if you can.

regarding the insurance companies: Couple things. Don't talk to her insurance company at all about anything. Don't disclose your injuries, your current medical status, details about the accident - anything. Simply and repeatedly, if necessary, refer them to your insurer and the police. "My insurer was notified. The claim is ABCXYZ. Further, you can get more details from the Anytown PD, Officers Smith and Jones." I was hit over 5 years ago, I was rear-ended and injured also (concussion, whiplash, back injury). In my accident... his insurance company would not leave me the fuck alone when I told them I needed time to recuperate, especially from the concussion. The days immediately after, they were calling at least once a day requesting to record a phone conversation getting me on record, seeing how I was, etc. Ridiculously annoying when I had a million other issues to sort out with my car, missing work, getting to appointments.

When speaking to your own insurance, simply state that you are injured and need to seek treatment. Speak in very basic simple terms. Don't elaborate on your injuries -- you're not a doctor. Don't minimize your claim or downplay it. Be honest, but don't put yourself at a disadvantage either by brushing anything off. You want what's fair and that's what you are entitled to. You want to be made whole. They, insurance companies, want to settle with you quickly and for the least amount of money. Closing the claim quickly is part of their metrics. Sign or agree to NOTHING. In the end, lawyering up stopped the constant calling from everyone, let me worry about doctors appointments and getting back back to work and on with my life. The lawyer really took care of everything for me.

for your benefit: Keep copies of everything. Anytime you have to shell out money in regards to this accident, get a receipt. Doctor visit co-pay receipts, receipts getting your car from tow, everything. Any time you talk to someone, note the date/time, who you spoke to and a brief synopsis of what was said. Get copies of all released police documentation and especially note the officers involved. Find out if she's being charged and prosecuted. If not, why? Get names/numbers of witnesses.
posted by jerseygirl at 6:10 PM on January 2, 2007 [1 favorite]

"... advice on salvage titles and insurance for such a car?"

I don't know Kansas law, but here in Ohio, I just took my car in to the BMV for an inspection (they made sure it was still drivable, etc...), and got a salvage title with no problem. Insurance is no problem - mine is about $35/mo though Geico. You'll have some explaining to do if you ever sell it, but just keep good documentation.

I know how you feel about Volvos - I'm very attached to mine, too, though it is in the process of having the blower motor replaced. Look that up sometime if you want to scare yourself.
posted by Liosliath at 6:17 PM on January 2, 2007

You should lawyer up, for both financial reasons and peace of mind reasons. Let's take peace of mind first: How much do you really know about Kansas no-fault law? Do you know what the statute of limitations is? Do you know the kind of things you can and can't say to the other side's insurance company in order to protect yourself against a waiver or estoppel defense? How much is it worth to you to have all these little things taken care of?

Financial reasons: The plaintiff's bar and insurance company lawyers are repeat players. You can get screwed with a bad settlement if you go it alone, but it's much harder for your lawyer to get screwed: he or she has hundreds of price points based on her experience with past clients. It's simple economic theory that repeat players produce optimal results because neither party has high information-seeking costs.

Dollar for dollar, it's "worth" it to see a lawyer if you think that it's more likely than not - or, more accurately, enough more likely than not depending on your level of risk aversion - that your counsel-assisted recovery would exceed your pro se recovery by a margin higher than 33%, the attorney's cut of the pie. If that doesn't put you over the top, consider to what extent you are willing to pay a "peace of mind" premium to account for the intangible, CYA-type things that effective representation provides.

I understand people's aversion to the plaintiff's bar, but for me it would be a no-brainer. The trick, of course, is finding the right attorney. That is the decision which is most incumbent upon you to get right. The guy who owns the chinese buffet... probably not so much.

I'm not actually sure if the buffet owning lawyer is going to take a cut, knowing the guy I'd assume he'd do this pro bono.

No, he's not going to do it pro bono. A pro bono plaintiff's lawyer makes as much sense as a pro bono hedge fund manager. If both of you stand to profit from the enterprise, there's no reason for charity. The only time you'd see a plaintiff's attorney providing services off the clock or at a discount is when the disbursements or other expenses associated with the litigation threaten to consume the eventual settlement. For an example of this, read Gerald Stern's Buffalo Creek Disaster - a tale of very rich lawyers representing very poor plaintiffs, with an interesting discussion of the fee negotiation and the ethical implications therein.
posted by Saucy Intruder at 6:57 PM on January 2, 2007

You need an attorney. The drunk's insurance company would LOVE for you to think you don't need an attorney --- that will be music to their ears --- and they'll probably be as nice as they can be to you if you contact them.

You would be very unwise to proceed without an attorney. Only an attorney will know if you are being offered what your injury is worth. (A rule of thumb often bandied about is that plaintiffs can expect to get three times whatever their medical bills are ... but depending on the egregiousness, maybe more.)

It is VERY important what kind of lawyer you select. Stay away from the ones who do heavy television advertising. The philosophy of those lawyers is often summed up as "stack 'em high, settle 'em cheap." They settle cases quickly, they work in a kind of complicit relationship with insurance companies, and you won't get what the case is worth. (Insurance companies love dealing with the high-volume personal injury attorneys, because such attorneys are so willing to settle the cases cheaply for a quick payoff.) Find a good attorney with a lower profile who has real trial experience.
posted by jayder at 7:21 PM on January 2, 2007

I think that you should find a lawyer and royally fuck her in the ear. From what you said, it sounds like she's passing the blame for her drunk driving everywhere else but on herself and isn't taking responsibility for her poor choices. Bitchslap her hard. The next time she goes out driving drunk, she could kill someone. It's fortunate that you weren't more seriously injured.

I have absolutely no tolerance for drunk drivers.

Also, document absolutely everything. Sit down right now, bust open a text editor, and start documenting everything that happened from the very beginning in gory detail.
posted by drstein at 7:51 PM on January 2, 2007

Oh yes. Take photos of everything. Keep your own photos. See if you can get photos of her car as well.

I cannot overstress the importance of accurate & complete documentation.
posted by drstein at 7:52 PM on January 2, 2007

IANAL, but my husband was recently hit by a bus and we are currently working with a lawyer to sue/settle. One of the most important pieces of advice he gave us was that not only should you document what happened the day of the accident, you should also start a daily journal to document how you feel each day since the accident. Write down ANYTHING that could be remotely related. Was your neck stiff today? Did you have any pain? Did it prevent you from doing anything you would normally do or make it more difficult to do those things? How did that impact your family/personal life? Every entry is potential money in the bank!
posted by platinum at 9:30 PM on January 2, 2007

YMMV, but I worked for personal injury attorneys in Georgia and was told by others on staff that a typical settlement was usually medical bills (which might have included damage to the car, I'm not sure) times 3: you get a third to make you whole, the lawyer gets his third (but notice, this doesn't come out of what she owes you in medical bills!), and the last third -- I think -- goes to pay back the lawyer's expenses, which are considerable.

Again, IANAL, I only worked for one, and heard this secondhand. Plus it was in Georgia (which probably has different tort laws) and I worked for some really good lawyers. Still, don't fear the 1/3 cut.

Also, whoever said to call the newspaper: DON'T! Unless you talk to your lawyer about it first. Best of luck.
posted by SuperNova at 10:55 PM on January 2, 2007

I got rear-ended in 1989, in Long Beach, California. My neck pain went away quickly. However, it reappeared after awhile. Today I suffer from neck problems, and have no idea if it's related to the injury. It may very well be.

I also recieved poor legal counsel immediately after the accident. Friend-of-a-friend kind of lawyer. At the time, I had also just gone through the death of my partner so I was an emotional basket case anyway.

Lawyers are very helpful to keep sorted between reality and emotions. They handle the realities. Emotions sometimes drive us to get past these things rather than getting our just-due.
posted by Goofyy at 11:31 PM on January 2, 2007

Go see a chiropractor ASAP. Tell him/her what happened. You will receive a business card for a lawyer. I have a friend who had a minor accident and received $8K after paying the lawyer. This is in Maryland.
posted by frecklefaerie at 11:48 PM on January 2, 2007

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