Legal Options After Getting Hit by a Drunk Driver

If you've been injured or a family member was injured or killed by a drunk driver, you'll want to know about your options to collect compensation. We walk you through the basics and cover some other issues you should keep in mind.

By , Attorney · University of Tulsa College of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

Despite significant decreases over the past 40 years, alcohol-related driving injuries and fatalities remain disturbingly high. In 2021, according to data from the National Highway Traffic Safety Administration, 13,384 people died in 12,162 alcohol-related crashes, amounting to 31% of all traffic fatalities. This total included 7,668 drivers, 2,078 passengers, 2,023 motorcyclists, and 1,607 nonoccupants—pedestrians, bicyclists, and others.

If you were injured or a family member was injured or killed by a drunk driver, how can you get compensation (what the law calls "damages") for your injuries? We'll discuss your options.

But we start with with some preliminary issues, including how a criminal case against the drunk driver is different from your claim for damages, and the kinds of damages you can collect if you win your claim.

Preliminary Issues to Keep in Mind

As we review your options for collecting damages in the discussion below, you'll want to keep these issues in mind.

How a Drunk Driving Criminal Case Is Different

A drunk driver who injures you is likely to face two sets of legal consequences. First, state or local authorities will prosecute them for their crimes. The result of a guilty plea or verdict is likely to be jail or prison time, and maybe fines. A finding of guilt might make proving your claim for damages a bit easier, but isn't likely to impact you in any other way.

Second, you might bring a civil (non-criminal) insurance claim or lawsuit against the driver. Others who were hurt or who lost a family member are likely to do the same. The price to be paid in your civil case won't be jail time. Instead, you'll ask the court to award you:

  • compensatory damages—meant to compensate for your injuries and losses, and
  • punitive damages—intended to punish the drunk driver for extreme and outrageous misconduct.

More About the Damages You Can Collect

In most cases like yours, you can collect two kinds of compensatory damages.

  • Special damages. Also known as "economic" damages, these are losses that come out of your (or your insurance company's) pocket. Medical bills, rehabilitation charges, lost wages, and the costs of household replacement services are common examples. These damages usually are easy to measure in dollars.
  • General damages. These are also called "noneconomic" damages. Unlike special damages, general damages don't come directly out of your pocket. They're meant to compensate you for injuries like pain and suffering, emotional distress, loss of enjoyment of life, and loss of relationships with others. General damages tend to be much more difficult to translate to a dollar figure.

Punitive damages aren't often awarded in auto accident cases. But you stand a better chance of collecting them in a drunk driving case. The odds will depend on how extreme the drunk driver's misconduct was—the level of intoxication, whether they fled the scene, their behavior at the scene, and the nature and extent of the injuries they caused. Note that some states don't allow punitive damages at all, in any kind of case.

Option One: Bring a Claim Against the Drunk Driver

An insurance claim or a lawsuit against the drunk driver who injured you—called a "third-party claim"—is your first option, unless:

Here are some issues to look out for along the way.

Coverage Denial or Threat to Deny Coverage

A liability insurance policy covers the policyholder—in this case, the drunk driver—for acts of negligence, or carelessness. It almost certainly doesn't cover acts of intentional wrongdoing. The drunk driver's insurance company might argue that driving while drunk was intentional, and so isn't covered by the driver's liability insurance. This argument probably won't work, but that doesn't mean the insurance company won't try it.

Should this be an issue in your case, ask your lawyer (yes, in most drunk driving cases, you should have legal counsel) whether your state's law supports the insurer's position. If it doesn't, talk to your lawyer about whether the insurance company might be subject to a bad faith claim if it does deny coverage.

Resist the Temptation to Jump at the First Offer

In a drunk driving case, the other driver's liability—legal responsibility for the wreck and your injuries—typically is clear. In other words, your lawyer and the insurance company probably won't argue over whether the insurance company must pay, but over how much the insurance company must pay. This process will take some time, so try to be patient.

Because there probably won't be a fight over liability, the insurer might come to you early on with a settlement offer. Resist the temptation to jump at it. Unless it's for the other driver's policy limits—and it might be, if your injuries were serious and the drunk driver didn't have much liability insurance—that offer is usually an "opening bid," not the company's best offer. The claims adjuster wants to dangle some quick cash, hoping that you're desperate enough to take it.

Your lawyer knows all this, and will help guide you through the settlement process. The two of you will decide what a fair offer for your case looks like. Your best bet will be to heed your lawyer's advice.

Make Sure the Drunk Driver Has Enough Liability Insurance

The fact that the drunk driver is probably liable for all your injuries doesn't guarantee that the they can pay for all your damages. Early on, your lawyer will find out how much liability insurance the other driver has, and will let you know if it's enough to cover your losses. If the drunk driver is underinsured, you'll need to bring an underinsured motorist claim (see below)—if you have that coverage.

Option Two: Bring a Claim Against Another Third Party

When you're hurt by a drunk driver, there might be others you can look to for compensation, including:

  • the person or business who furnished the drunk driver with alcohol
  • the driver's employer
  • the person who furnished the drunk driver with a motor vehicle, and
  • your employer's workers' compensation insurer, if you were injured on the job.

Who Furnished the Alcohol?

In many states, liquor liability laws allow someone who's been injured by a drunk person to sue the person or business that furnished the alcohol. These laws fall into two categories.

  • Dram shop laws. Dram shop statutes typically impose liability on a retail liquor licensee, meaning a person or business licensed by the state to sell or serve alcohol directly to the public. In most states, dram shop laws only impose liability when a licensee sells, serves, or furnishes liquor to a person who's visibly intoxicated or under the state's legal drinking age.
  • Social host liability laws. These laws impose liability on a party host when a guest gets drunk and injures someone. Social host liability laws aren't as prevalent as dram shop laws. In states that have them, social host liability laws typically only create liability for serving alcohol to underage drinkers, or allowing them to drink on the host's property.

When the Drunk Driver Is Working

When an employee who's acting within the scope of their employment and doing the employer's work negligently causes you an injury, you can use a legal rule called "respondeat superior" (Latin for "let the superior answer") to hold the employer liable for your damages. For example, suppose you're injured by a drunk sales rep whose two-martini sales lunch turned into a six-martini sales lunch. Your lawyer will argue that the employer should be on the hook for your losses.

Respondeat superior doesn't require that the employer must have furnished a vehicle to the employee. For that matter, it doesn't require that the employer did anything negligent at all. The fact that the employee was "on the clock" can be enough—even if the employee was driving their own car.

Who Gave Them the Keys?

What happens when the vehicle's owner hands the keys over to a driver who they know is drunk, or who has a habit of drinking and driving? A person who negligently entrusts their vehicle to an unfit driver might be liable when the driver injures others. Giving the keys to a visibly drunk driver is a textbook example of negligent entrustment. Liability might also result if the vehicle's owner hands it over to a driver who's sober, but who the owner knows has a history of driving under the influence.

Were You Injured While on the Job?

If you're hurt by a drunk driver while you're doing your employer's work, you can file a workers' compensation claim. Workers' compensation insurance will cover your medical bills and lost wages while you're out of work. You can also get a lump sum payment to compensate you for any permanent disability.

Filing a workers' compensation claim doesn't prevent you from bringing a claim or lawsuit against the drunk driver or other responsible third parties. But you'll likely have to reimburse the workers' compensation insurer for benefits it paid to you, out of the proceeds of any settlement or verdict you get.

Option Three: Bring a Claim Under Your Own Insurance

In some cases, making a claim under your own insurance (a "first-party claim") might be your best—or only—option. Here are a few examples.

You Live in a No-Fault Insurance State

When you're hurt in an auto accident in a no-fault state, you first look to your own personal injury protection (PIP) insurance to pay for at least some of your medical bills, lost wages, and perhaps other out-of-pocket expenses. You're not allowed to bring an insurance claim or file a lawsuit against the other driver unless your injuries satisfy your state's "tort threshold." Serious injuries or death will satisfy that threshold. Your lawyer can fill you in on the details.

The Drunk Driver Is Uninsured or Underinsured

Don't be surprised to learn that the drunk driver who hurt you was driving without insurance, or with only the state-mandated minimum liability insurance. Should that happen, you'll look to your own insurance (if you have the necessary coverage) to pay some or all of your damages. Here are a few of those coverages:

  • Uninsured and underinsured motorist insurance. This coverage takes the place of the liability insurance the drunk driver was supposed to have to pay for your damages. You'll have to prove your damages to collect, just as you would in a third-party claim against the drunk driver.
  • Collision coverage. Your collision coverage will pay the cost to repair your car (minus your deductible) when it's damaged in a wreck, regardless of who caused the accident. When your vehicle is totaled, your collision insurance typically pays you its actual cash value—which might not be enough to pay off your auto loan or lease, if it's financed. (Learn more about your car repair options after an accident.)
  • Medical payments (med pay) insurance. As the name suggests, this insurance pays your accident-related medical bills (and those of your passengers, too) up to your per-person coverage limit. That limit is typically low—just a few thousand dollars. If you have health insurance to cover your medical bills, med pay can help with your deductibles and copays.

Do you have these coverages? If you bought a "full coverage" auto policy, probably so. If you're not sure, talk to your insurance agent.

Get Help With Your Drunk Driver Injury Case

Depending on the facts, a drunk driver injury case can get very complicated, very quickly. If liability is undisputed, your injuries are minor, and there aren't any thorny legal issues complicating things, you might be able to get a fair settlement on your own. But if liability is disputed, your injuries are moderate or severe, or there are difficult insurance coverage or legal issues present, you'll soon find yourself in over your head.

An experienced auto accident lawyer knows how to navigate the in's and out's of even the most complicated drunk driving cases. Having counsel on your side gives you the best chance of a fair outcome. When you're ready to move forward with your case, here's how to find a lawyer who's right for you.

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