Intoxication Assault and Intoxication Manslaughter in Texas

Alcohol related motor vehicle accidents are common occurrences in today’s society. The following example comes from a recent case I handled against a drunk driver based upon Texas law.

I represented an individual for injuries arising out of a motor vehicle accident in which an intoxicated person rear-ended my client’s vehicle while my client was lawfully stopped at a red light knocking my client’s pickup truck across the intersection and the intoxicated person’s vehicle continued to travel a couple of hundred feet further.

The intoxicated driver had an underlying primary policy and a significant excess policy. The insurance company issuing the excess policy initially misrepresented to the intoxicated driver that his excess policy did not cover punitive damages. This misrepresentation was false and the falsity of this representation was eventually uncovered.

In Texas, all available, or potentially applicable, insurance coverage must be disclosed by the attorney hired by the insurance company to represent the intoxicated driver. In this case, the defense attorney did not initially disclose the Reservation of Rights letter that represented the excess policy did not cover punitive damages. Since a significant part of damages would have been punitive damages, it gave the appearance the excess carrier was intentionally misrepresenting true coverage for its own insured hoping to achieve a settlement based upon false representations of insurance coverage. I believe the excess insurance company knew, or should have known, that it was misrepresenting the available coverage and falsely stating that punitive damages were not covered under the policy, hoping that it could settle the case for less than it would have to pay if punitive damages were covered. This type of conduct is dishonest and my years of being hired by insurance companies and understanding their responsibilities for full disclosure of insurance coverage, led me to believe that something improper was occurring. And it was.

After rear-ending my clients’ vehicle that was lawfully sitting at a red light in Texarkana, Texas, the intoxicated driver was cited for Driving While Intoxicated, arrested and transported to jail. A container of clear liquid was located inside intoxicated driver’s vehicle which was believed to be “moonshine”. A police officer was shown on video pouring out the “moonshine” and the intoxicated driver later admitted he was intoxicated to the Bowie County Probation Department as a condition for probation.

Suit was filed. I took the intoxicated driver’s deposition and he admitted in his sworn deposition that:

1. at the time of the accident he was operating a motor vehicle on public roads in Texas while intoxicated;
2. his intoxication probably caused or contributed to the accident in question;
3. it is unsafe to operate a motor vehicle upon the public roads in the State of Texas while intoxicated;
4. before the accident in question he was aware that if he operated a motor vehicle on the public roads in the State of Texas while intoxicated there was a real likelihood that an accident might occur;
5. before the accident in question he was absolutely aware that an intoxicated driver is more likely to cause an accident;
6. he admitted to his intake officer during his guilty plea that he had been drinking and was intoxicated at the time of the accident in question;
7. prior to the accident in question he knew it was against the law to drink and drive and he knew it wasn’t right;
8. prior to the accident in question he knew it was wrong to operate a motor vehicle under the influence of alcohol or while intoxicated;
9. prior to the accident in question he knew it was not right to operate a motor vehicle if he was intoxicated due to the consumption of alcohol;
10. prior to the accident in question he had been treated for drug or alcohol or addiction problems which would have further educated him about the dangers of operating a motor vehicle while intoxicated due to ingestion of alcohol and during this treatment program the instructors talked about alcohol issues;
11. before the accident in question he attended AA meetings which would have addressed alcohol related issues and dangers and provided him with knowledge about the dangers of driving while intoxicated;
12. he believes the laws against driving while intoxicated are good laws and everyone should comply with them;
13. he knows not to drink and drive;
14. he drank too many beers before the wreck in question;
15. he began drinking alcohol before noon on the day of the accident and the accident happened around 4:30 PM;
16. he was intoxicated at the time of the accident in question;
17. the wreck was his fault, and he accepts responsibility;
18. after being placed on probation through the Bowie County District Attorney’s office he continued to drink and when he was tested, he “popped dirty” for alcohol knowing that consuming alcohol was a violation of the terms of his probation; and
19. if a person operating a motor vehicle while intoxicated ran over a pedestrian and killed or seriously injured a pedestrian those facts would justify in his mind an award of punitive damages.

The intoxicated driver admitted to being at fault, being intoxicated and that the circumstances surrounding the collision would justify an award of punitive damages. Therefore, the false representations by the intoxicated driver’s excess carrier that the excess policy did not cover punitive damages was extremely important for a resolution of this lawsuit in favor of my client. For many years I was hired by insurance companies to represent their insureds in motor vehicle accident cases, including cases involving potential punitive damages. Because I suspected that a Reservation of Rights letter existed, and for some reason, the defense attorneys and/or the insurance company refused to voluntarily produce it, I filed a lengthy Motion to Compel after requesting this information for several years, and I received the Reservation of Rights letter the next day.

After reviewing the Reservation of Rights letter and examining the policy language being relied upon by the excess carrier, I examined the excess policy itself. I found that the Reservation of Rights letter was false and the policy exclusion being relied upon by the excess carrier had actually been removed from the excess policy based upon an Endorsement attached to and made a part of the excess policy which meant that punitive damages were covered by the excess policy. I had already taken the intoxicated driver’s sworn deposition and obtained additional evidence that clearly supported an award of punitive damages, including an award of uncapped punitive damages. The only reason for the excess carrier to falsely represent that punitive damages were not covered was to make me and my client believe that a significant award of punitive damages would not be covered under the excess policy hoping for a settlement significantly less than the two policies in order to save money.

INTOXICATION ASSAULT AND UNCAPPED PUNITIVE DAMAGES

Since my client was injured as a result of being rear-ended by an intoxicated driver while my client was lawfully stopped at a red light in Texarkana, Texas, he was not only entitled to, but he would have clearly recovered compensatory damages for his injuries, and he would also have received punitive damages against the intoxicated driver. Texas enacted the Exemplary Damages Act which generally limits the amount of exemplary damages, but certain exceptions exist to the limitations or caps. Although the exceptions to the limitations on caps for punitive damages usually require that the defendant’s conduct be committed knowingly or intentionally; intoxication assault and intoxication manslaughter do not require the knowing and intentional requisites. In other words, Intoxication Assault and Intoxication Manslaughter can provide exceptions to the caps on exemplary damages if the intoxicated driver is found to have committed Intoxication Assault or Intoxication Manslaughter.

In this case, the other driver was operating a motor vehicle in a public place in Bowie County, Texas, in an intoxicated condition at the time of, and prior to, the collision causing "serious bodily injury” and damages to my client; thereby committing intoxication assault on my client. Therefore, as a result of the other driver’s intoxication assault on my client, I alleged that my client was entitled to uncapped exemplary damages based upon Intoxication Assault. This allegation made it more important that the Reservation of Right letters was eventually disclosed after years of hiding it and the fraudulent representation to its own insured that punitive damages were not covered by the excess policy was uncovered.

EXEMPLARY DAMAGES

It was alleged that the conduct of the intoxicated driver constituted gross negligence and entitled my client to punitive damages because the conduct of the intoxicated driver, prior to and at the time of the collision in question, when viewed objectively from the standpoint of the intoxicated driver, at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of harm to others, and of which the intoxicated driver had actual, subjective awareness of the risks involved, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of others, including my client.

The intoxicated driver admitted in his deposition to the following:

1. at the time of the subject collision he was operating a motor vehicle on public roads in Texas while intoxicated;
2. his intoxication probably caused or contributed to the accident in question;
3. it is unsafe to operate a motor vehicle upon the public roads in the State of Texas while intoxicated;
4. before the accident in question he aware that if he operated a motor vehicle on the public roads in the State of Texas while intoxicated there was a real likelihood that an accident might occur;
5. before the accident in question he was absolutely aware that an intoxicated driver is more likely to cause an accident;
6. he admitted to his intake officer during his plea that he had been drinking and was intoxicated at the time of the accident in question;
7. prior to the accident in question he knew it was against the law to drink and drive and he knew it wasn’t right;
8. prior to the accident in question he knew it was wrong to operate a motor vehicle under the influence of alcohol or while intoxicated;
9. prior to the accident in question he knew it was not right to operate a motor vehicle if he was intoxicated due to the consumption of alcohol;
10. prior to the accident in question he had been treated for drug or alcohol or addiction problems which would have further educated him about the dangers of operating a motor vehicle while intoxicated due to ingestion of alcohol and during this treatment program the instructors talked about alcohol issues;
11. before the accident in question he attended AA meetings which would address alcohol related issues and dangers and proved him with knowledge about the dangers of driving while intoxicated;
12. he believes the laws against driving while intoxicated are good laws and everyone should comply with them;
13. he knows not to drink and drive;
14. he drank too many beers before the wreck in question;
15. he began drinking alcohol before noon on the day of the accident and the accident happened around 4:30 PM;
16. he was intoxicated at the time of the accident in question;
17. the wreck was his fault, and he accepts responsibility;
18. after being placed on probation through the Bowie County District Attorney’s office for the collision the subject of this litigation, he continued to drink and when he was tested, he “popped dirty” for alcohol and,
19. consuming alcohol was a violation of the terms of his probation.

The intoxicated driver knew before the accident in question:

1. it is unsafe to operate a motor vehicle upon the public roads in the State of Texas while intoxicated;
2. that if he operated a motor vehicle on the public roads in the State of Texas while intoxicated there was a real likelihood that an accident might occur;
3. he was absolutely aware that an intoxicated driver is more likely to cause an accident;
4. prior to the accident in question he knew it was against the law to drink and drive and he knew it wasn’t right;
5. he knew it was wrong to operate a motor vehicle under the influence of alcohol or while intoxicated;
6. he knew it was not right to operate a motor vehicle if he was intoxicated due to the consumption of alcohol;
7. he had been treated for drug or alcohol or addiction problems which would have further educated him about the dangers of operating a motor vehicle while intoxicated due to ingestion of alcohol and during this treatment program the instructors talked about alcohol issues (therefore he knew about the dangers of driving while intoxicated); and
8. before the accident in question he attended AA meetings which would have addressed alcohol related issues (therefore he knew about the dangers of driving while intoxicated.

Therefore, when viewed subjectively from the standpoint of the intoxicated driver, he had actual awareness of the dangers associated with consuming alcohol and driving while intoxicated upon the public roads of the State of Texas, but nevertheless proceeded with conscious indifference to the rights safety, and welfare of others, including my client, and he was aware that such conduct would result in harm to others such as my client.

As an additional basis and in further proof of justification for an award of exemplary damages, the intoxicated driver admitted that after being placed on probation through the Bowie County District Attorney’s office for DWI he continued to drink alcohol and when he was urine tested by his probation officer he “popped dirty” for alcohol even though he was aware that consuming alcohol was a violation of the terms of his probation.

DAMAGES FOR MY CLIENT

I provided to defense counsel a detailed Medical Narrative Report, a Functional Capacity Evaluation performed on my client showing permanent impairment; a Medical Capacity Evaluation performed by a doctor at the request of my client’s Workers Compensation carrier; an Economic Loss Report; an employer Termination of Employment Letter because of my client’s injuries; and a medical deposition of a neuroradiologist who performed MRI testing on my client’s brain because of concerns that he suffered a brain injury in the collision.

At the ER after the rear-end collision, my client’s initial complaints included lower back pain, right leg pain, injury to right hand and right-hand pain, muscle spasms and calf pain. He was seen 4 days later with chief complaints of pain in the right hand, lower back, left hip and right hip since the MVA. Neurologically, he had a headache and tingling in his right and left leg; joint pain, muscle pain and swelling; spasm/tenderness of paraspinal muscles; spasm/tenderness of lumber muscles; back range of motion reduced; diagnosis of hand and back sprain; and was placed on work restrictions due to the collision, His symptoms continued to worsen. He also complained about head injury symptoms and was having memory, confusion and other brain injury symptoms since the collision which were confirmed by friends, family and co-workers.

NEURORADIOLOGIST’S DEPOSITION

A head injury that doesn’t initially reveal a hematoma or internal brain bleed or similar objective injury may not show up until definitive diagnostic testing through special MRI testing or other diagnostic testing to determine a brain injury is performed sometime later. Several years later my client was seen by a brain injury specialist.

1. My client’s doctor was a professor of radiology, neurology, and anesthesiology at a medical school;
2. He’s been a neurosurgeon for 17 years and he has examined reports or testing results at the medical school for people who have brain injuries from a motor vehicle accident and he was familiar with the results of testing that shows defects or lesions in a person’s head as a result of trauma from a motor vehicle accident;
3. My client had magnetic resonance tests performed to determine if he had any lesions or defects or abnormalities in his brain;
4. The doctor saw decreased thickening of the cortex in my client’s brain that occurs when the brain rubs against the bones and just peels the surface of the brain during a collision of the type involving my client.
5. In his opinion, the history of being rear-ended by a motor vehicle traveling at least 55 mph was sufficient to have caused the decreased thickening in the cortex area of my client’s brain;
6. He said that the tests showed there were many fibers injured in my client’s brain;
7. When asked what did he really mean by saying that fibers are injured, he said they are broken or ruptured and the effect of having fibers ruptured or injured in my client’s brain is that the function is compromised where the lesions are located;
8. In his opinion, the test results showed some damage or defect or lesion in my client’s brain, and in his opinion, the most likely cause of the defect was the rotational motion during the collision;
9. He also said he wouldn’t be surprised to see depression; confusion; irritability; agitation and mood swings as symptoms for someone with defects and lesions he described about my client;
10. He acknowledged that the scan of my client’s brain consistently measured injury in the test of gray matter and white matter, functioning and chemical composition and he acknowledged that the tests showed abnormality, defects or lesions with respect to gray matter, white matter, function and chemical composition of my client’s brain and the defects he described are permanent.

Therefore, he confirmed that my client suffered a brain injury.

JURY INSTRUCTIONS AND QUESTIONS

QUESTION 1
Did the negligence, if any, of the intoxicated driver proximately cause the “injury” in question to my client?
       Answer “Yes” or “No”: _______________________
       A jury would have answered “Yes”

QUESTION 2
What sum of money, if paid now in cash, would fairly and reasonably compensate my client for his injuries?

1. Physical pain and mental anguish sustained in the past
2. Physical pain and mental anguish that, in reasonable probability, my client will sustain in the future
3. Loss of Earning Capacity for my client- The economic loss report estimated an economic loss amount from $508,498.18 to $579,781.63.
4. Physical impairment sustained in the past. The medical and employment records clearly indicated that my client had been impaired since the collision and his impairment is permanent.
5. Physical impairment that, in reasonable probability, my client will sustain in the future. My client suffered from permanent impairment and he had a life expectancy of 21 years.
6. Medical care in the past.
7. Medical care that, in reasonable probability, my client will sustain in the future.

The Medical Narrative Report indicated the need for future medical care which could consist of physical therapy; epidural steroid injections; pain management; and a potential need for surgery. Future medical expenses could also include future medical care from either a psychiatrist or a behavioral psychotherapist, or both, because of the brain injury.

A jury would have awarded significant sums for each of the above elements of damages.

QUESTION 3

Do you find from the preponderance of the evidence that the intoxicated driver committed Intoxication Assault on my client?

“A person commits Intoxication Assault if, while operating a motor vehicle in a public place while intoxicated, and by reason of that intoxication, causes serious bodily injury to another person such as my client.”

A jury would have clearly found that the intoxicated driver committed Intoxication Assault on my client.

QUESTION 4

Do you find by clear and convincing evidence that the harm to my client resulted from gross negligence?

“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.

“Gross negligence” means an act or omission by the intoxicated driver,

1. which when viewed objectively from the standpoint of Defendant at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
2. of which Defendant has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Answer “Yes” or “No.”
Answer: _______________

The following deposition testimony and Amended Responses to Request for Admission would have supported a “Yes” answer matter to Question No. 4.

INTOXICATED DRIVER’S DEPOSITION TESTIMONY

PAGE 21
     8     Q     Well, prior to September the 11th, 2014, did you drink
     9             and drive?
     10    A     Yes, I did.

PAGE 23
     1     Q     Well, before September the 11th, 2014, did you know it
     2             was against the law to drink and drive?
     3      A     Yes, sir.

PAGE 24
     10    Q    Okay. So, before September 11th, you knew it was wrong
     11           to drive a -- operate a motor vehicle, if you were under
     12           the influence of alcohol or intoxicated?
     13    A     Yeah, it's not legal to drink and drive.
     14    Q    Well, let me ask it this way. Let me rephrase it.
     15           Prior to September 11th 2014, did you know that it was
     16           not right to operate a motor vehicle, if you were
     17           intoxicated due to the consumption of alcohol?
     18    A     Yeah. I know it's not right.

PAGE 40
     10    Q    Okay, Okay. Well, what do you contribute the cause of
     11           this accident to then?
     12    A     An accident.
     13    Q     It was just an accident?
     14    A     Uh-huh. Yes sir.
     15    Q     All right. Do you contribute it tot that fact that you
     16           were intoxicated?
     17    A     Well, you know, I’m not saying I wasn’t intoxicated

PAGE 53
     20    Q    What is your opinion about the laws against driving
     21           while intoxicated?
     22    A     They are good laws.

PAGE 54
     3      Q     So do you think you should have complied with
     4              those laws on September the 11th, 2014?
     5      A      Well, you know –
     6      Q      Is that right?
     7      A      Yeah, I know not to drink and drive, yes sir.

PAGE 62
     11    Q     Okay. Okay. Now, you told me earlier that you had had
     12            some beers before this wreck had happened on September
     13            the 11th. 2014. Do you remember telling me that?
     14     A     Yes, sir.
     15     Q    Okay. Can you tell me ow many beers you had had within
     16            an hour of the wreck?
     17     A     I drank probably too many.

PAGE 68
     4      Q     Who do you place the fault on for being in this mess?
     5      A      Well, you know, really, I'm just going to come out and
     6              tell you. I hit a man in the rear end.
     7      Q     Okay.
     8      A      You know, I got to accept responsibility for that.
     9      Q     Okay.
     10    A      It was my fault I hit him. Did I veer off? You know,
     11            concentrate, you're always supposed to focus. Did I
     12            look too long? Yeah. Shouldn't have done that. Many
     13            things, you know, happened. Yeah, you know, I had an
     14            accident but it was definitely my fault.

PAGE 72
     17    Q      Yeah. Do you remember how fast you were going when you
     18             --
     19    A       Seemed like I was doing about 50, you know, speed limit.
     20              I mean, I always do. I mean, it’s -- probably was
     21             doing 55, I imagine.

PAGE 77
     25    Q       What did you mean by you assume a portion of

PAGE 78
     1               responsibility?
     2      A       Well, I mean, you know, when you – you know, when you
     3               drink a beer and you wait an hour, you can drive, No. I,
     4               you know. Maybe I had too much to drink that day. I
     5               don’t know.
     6      Q      Okay.
     7       A      You know, was I intoxicated? Yes sir, I was.
     18    Q      Do you accept 100 percent responsibility?
     19     A      Well, you know, when you run in to the back of a car,
     20             it’s automatically your fault, you know. I mean, its
     21             your fault, whole nine yards.
     22     Q     And I’m just asking the question, do you accept
     23             100 percent responsibility?
     24     A      Kind of hard to say no when you done it.
     25     Q     Okay, Well, it’s not a trick question. I’m just

PAGE 79
     1               saying --
     2       A      No, it's not, you know. I mean -- I mean, I accept
     3               responsibility for what happened that day.
     24     Q      And I think you told me earlier but let me just ask this
     25             question so we have a clear question and answer. Do you

PAGE 85
     1               agree that operating a motor vehicle upon the public
     2               roads in the state of Texas while intoxicated is against
     3               the law?
     4      A       Yes, sir, I do.
     5      Q      And it's unsafe for someone to operate a motor vehicle
     6               on the public roads in the state of Texas while
     7               intoxicated, isn't it?
     8      A       Yes, sir.
     9      Q      And before the accident happened, you were aware that if
     10             you operated a motor vehicle on the public roads in the
     11             state of Texas while intoxicated, there was a real
     12             likelihood that an accident might occur?
     13
     14     A      Could happen, yes, sir.
     16     Q      I mean, before September the 11th, 2014 --
     17     A      Of course.
     18     Q      -- you -- you were aware that an intoxicated driver is
     19             more likely to cause an accident?
     20     A      Absolutely.
     21     Q     Okay. And you recognize that the laws existed to
     22             protect innocent people from intoxicated drivers?
     23     A      Yes, sir.

PAGE 87
     5       Q     Now, isn't it true that you went in and you met
     6               with what's called an intake officer at the courthouse?
     7       A      Uh-huh.
     8       Q     And you had to admit your responsibility?
     9       A      I told him I was drinking.
     10     Q     And you told him that you were intoxicated, didn't you?
     11     A      I believe I did.
     12     Q     Okay. All right. That's all I've got. Thank you.

INTOXICATED DRIVER’S AMENDED RESPONSES TO REQUEST FOR ADMISSION

REQUEST NO. 1:    Admit or deny that on or about September 11, 2014, you were operating a motor vehicle upon the public roads in the State of Texas and the vehicle you were operating collided with a motor vehicle occupied by Plaintiff.
RESPONSE:    Admit.

REQUEST NO. 2:    Admit or deny that at or near the time of the accident referred to in Request No. 1, you were operating a motor vehicle upon a public road in the State of Texas while intoxicated. [Please see the term Intoxication or Intoxicated as defined by the Texas Penal Code 49.01].
RESPONSE:    Admit.

REQUEST NO. 3:    Admit or deny that a proximate cause of the collision between the motor vehicle you were operating and the motor vehicle occupied by [my client] was the result of your negligent operation of your motor vehicle.
RESPONSE:    Admit that defendant was a proximate cause of the occurrence in question.

REQUEST NO. 25:   Admit or deny that Defendant, …. was arrested and charged with DWI regarding the accident in question.
RESPONSE:    Admit.

REQUEST NO. 37:    Admit or deny that Defendant …….. through his agents, representatives or attorneys, has investigated the accident the subject of this suit and the investigation revealed that the liability of ……is reasonably clear.
RESPONSE:    Admit that defendant was a proximate cause of the collision in question, and thus, to this extent, his liability, whether in whole or in part, is reasonably clear.

REQUEST NO. 52:    Admit or deny that at the time of the accident the subject of this suit you were driving while intoxicated as that term is defined in Tex. Penal Code 49.04.
RESPONSE:    Admit.

Based upon the above sworn deposition testimony, the intoxicated driver,

1. Swore on several occasions that he was intoxicated;
2. He said it was his fault he hit him;
3. He hit a man in the rear;
4. He has to accept responsibility for that;
5. He accepts responsibility for what he did;
6. He accepts responsibility for what happened that day;
7. He admitted that he was operating a motor vehicle upon a public street in Texas while intoxicated;
8. He admitted that while operating a motor vehicle upon a public street in Texas while intoxicated is against the law;
9. He admitted that he told his intake officer at the courthouse that he was intoxicated;
10. He agreed [ so he knew] that operating a motor vehicle upon the public roads in the State of Texas while intoxicated was against the law; and
11. He was aware it's unsafe for someone to operate a motor vehicle on the public roads in the State of Texas while intoxicated.

Based upon the above admissions, the intoxicated driver admitted:

1. that on or about September 11, 2014, he was operating a motor vehicle upon the public roads in the State of Texas and the vehicle he was operating collided with a motor vehicle occupied by my client;
2. that at or near the time of the accident, he was operating a motor vehicle upon a public road in the State of Texas while intoxicated pursuant to the definition of the term Intoxication or Intoxicated as defined by the Texas Penal Code 49.01;
3. that a proximate cause of the collision between the motor vehicle he was operating and the motor vehicle occupied by my client was the result of the negligent operation of his motor vehicle;
4. that the impact in question occurred between the front bumper of defendant's vehicle and the back bumper of plaintiff's vehicle;
5. he was arrested and charged with DWI regarding the accident in question;
6. that the liability of Defendant was reasonably clear;
7. that at the time of the accident the subject of this suit he was driving while intoxicated as that term is defined in Tex. Penal Code 49.04;
8. that operating a motor vehicle upon the public roads in the state of Texas while intoxicated was against the law; and
9. it's unsafe for someone to operate a motor vehicle on the public roads in the state of Texas while intoxicated.

QUESTION 5

What sum of money, if any, should be assessed against the intoxicated driver and awarded to my client as exemplary damages for the conduct found in response to Question 4?

“Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages include punitive damages.

Factors to consider in awarding exemplary damages, if any, are—

1. The nature of the wrong;
2. The character of the conduct involved;
3. The degree of culpability of the wrongdoer;
4. The situation and sensibilities of the parties concerned;
5. The extent to which such conduct offends a public sense of justice and propriety; and
6. Attorney’s fees.

Answer in dollars and cents, if any.
Answer: _______________

Remember, the intoxicated driver admitted in his sworn deposition that:

1. at the time of the accident he was operating a motor vehicle on public roads in Texas while intoxicated;
2. his intoxication probably caused or contributed to the accident in question;
3. it is unsafe to operate a motor vehicle upon the public roads in the State of Texas while intoxicated;
4. before the accident in question, he was aware that if he operated a motor vehicle on the public roads in the State of Texas while intoxicated there was a real likelihood that an accident might occur;
5. before the accident in question, he was absolutely aware that an intoxicated driver is more likely to cause an accident;
6. he admitted to his intake officer during his plea that he had been drinking and was intoxicated at the time of the accident in question;
7. prior to the accident in question, he knew it was against the law to drink and drive and he knew it wasn’t right;
8. prior to the accident in question, he knew it was wrong to operate a motor vehicle under the influence of alcohol or while intoxicated;
9. prior to the accident in question, he knew it was not right to operate a motor vehicle if he was intoxicated due to the consumption of alcohol;
10. prior to the accident in question, he had been treated for drug or alcohol or addiction problems which would have further educated him about the dangers of operating a motor vehicle while intoxicated due to ingestion of alcohol and during this treatment program the instructors talked about alcohol issues;
11. before the accident in question, he attended AA meetings which would have addressed alcohol related issues and dangers and provided him with knowledge about the dangers of driving while intoxicated;
12. he believes the laws against driving while intoxicated are good laws and everyone should comply with them;
13. he knows not to drink and drive;
14. he drank too many beers before the wreck in question;
15. he began drinking alcohol before noon on the day of the accident [page 63] and the accident happened around 4:30 PM;
16. he was intoxicated at the time of the accident in question;
17. the wreck was his fault and he accepts responsibility;
18. after being placed on probation through the Bowie County District Attorney’s office, he continued to drink and when he was tested, he “popped dirty” for alcohol;
19. consuming alcohol was a violation of the terms of his probation; and
20. if a person operating a motor vehicle while intoxicated, ran over a pedestrian and killed the pedestrian, those facts would justify in his mind an award of punitive damages.

The intoxicated driver’s testimony would have most likely resulted in an award of punitive damages for my client with the punitive damages most likely being uncapped.

COVERAGE ISSUES

Remember, the underlying primary policy of insurance had $250,000.00 in limits and the excess umbrella policy had $1 million in limits, but the excess carrier falsely represented to its insured that the excess policy did not cover an award of punitive damages. As soon as I determined that the excess policy did cover punitive damages, I filed a separate lawsuit called a Declaratory Judgment Action against both insurance companies since they were both part of a larger “family of insurance companies”. I asked the Court to declare the Reservation of Rights letter void and order that punitive damages were covered. I then received a letter from a Dallas law firm withdrawing the Reservation of Rights letter and admitting that punitive damages were, in fact, covered. Since punitive damages were a significant part of the potential damages against the intoxicated driver, once the falsity of the Reservation of Rights letter was uncovered and withdrawn, I sent a demand letter (called a Stowers letter) offering to settle within the two policies’ limits.

In general terms, insurance companies owe a duty to their insureds to make reasonable efforts to settle within policy limits if the opportunity arises. Most of the time when a person is sued because of an automobile accident, they believe the attorney hired by the insurance company is looking out for their best interest. Frequently, that is not the case, especially when the attorney hired by the insurance company is actually an employee of the insurance company. Fortunately, the Defendant in this case hired his own personal attorney to look over the shoulders of the attorney hired by the insurance company. Once the misrepresentations about what the excess policy did cover- punitive damages, were uncovered, and a settlement demand was made within the two policies, the Defendants’ personal attorney demanded that the settlement be accepted in case the attorney hired by the insurance company would not make such demand.

I asked the insurance companies in writing to self-insure their intoxicated driver if they refused to accept the settlement offer within both policy limits. I asked the two carriers to give their intoxicated driver a Letter of Guarantee/Protection stating that if there is an excess judgment or verdict over the two limits the insurance carriers would pay any excess judgment or verdict since the insurance companies controlled the defense and the right to settle a claim within the policy limits offer, but instead decided to expose its intoxicated driver to an excess judgment or verdict. If the insurance companies refused to give its intoxicated driver such a letter, that would suggest that the insurance companies knew that there was a real likelihood of an excess judgment; otherwise, why would they not give its intoxicated driver a Letter of Guarantee/Protection for any future judgment that was entered in excess of applicable limits? Remember, any reasonable insurance company would not want to give a Letter of Guarantee/Protection if, when “exercising that degree of care and diligence which an ordinarily prudent person would exercise in the management of his own business”, it was worried about an excess judgment over applicable policy limits. The opposite would be true, if, when “exercising that degree of care and diligence which an ordinarily prudent person would exercise in the management of his own business”, it was NOT worried about an excess judgment over applicable policy limits, then it should have no reservation about giving a Letter of Guarantee/Protection stating that if there is an excess judgment or verdict, the insurance company would pay the excess judgment. The insurance company or companies cannot have it both ways.

After the falsity of the Reservation of Rights letter was uncovered, and it was clear that punitive damages were covered, the two insurance companies accepted a settlement offer within the two policies of insurance.

There were many other technical insurance issues involved in the case but, fortunately, after years of being hired by many insurance companies initially in my career I was able to understand and deal with the many different issues and obtain a very favorable confidential settlement for my client.

I have handled many alcohol related claims and have obtained numerous, significant confidential settlements. Many cases have involved intoxicated or impaired drivers, including operators of tractor/ trailer rigs. Others have involved over-serving of alcohol by bars and restaurants. I have recently received significant settlements against local bars in Arkansas because of overserving of alcohol. I offer free consultation for potential clients who may have been injured due to consumption or overserving of alcohol.

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