Legal Question in Personal Injury in California
Hit stopped drunk driver - who's at fault?????
My daughter, 24, rear-ended a drunk driver who was either stopped/substantially slowing, no brake lights, left lane on frwy. She noted distance between them closing rapidly at approx. 64 mph w/no other cars ahead of said driver. She decelerated, then hit brakes, pulling to left, as lane change prohibitive due to flowing traffic. Impact impelled stricken vehicle at least 100 yards w/no other cars involved. Her car was totaled and she sustained moderate whiplash/chest injuries. Driver of stricken vehicle lied about intoxication to arresting police officer, subsequently cited/arrested w/blood alcohol above .08%, court plea not-guilty, he is now suing her. No witnesses. Friend arriving post-accident noted proximity of accident vehicles to one another. Daughter retained lawyer who dropped case after reading police report claiming stop-and-go traffic, unsafe driving on daughter's part, no mention of drunk driver/arrest. Daughter states was NOT stop-and-go prior to accident. Daughter being sued by drunk driver. Daughter's insurance claiming daughter 100% responsible.
Can she refute 100% responsibility? Can drunk driver sue? Can drunk driver be sued? Can she testify against him as per not guilty (accident not mentioned in court)?
3 Answers from Attorneys
Re: Hit stopped drunk driver - who's at fault?????
Did your daughter have insurance? She needs to turn this over to insurance company and she needs to direct them to property defend her. She needs representation asap. Do not second guess all of this. NOW.
Re: Hit stopped drunk driver - who's at fault?????
Your daughter will be at least partially at fault--but maybe not 100%. Depends on a lot of factors as to why the car stalled. Intoxication may not be related to that. We won't know unless the other drivers files a lawsuit and your ins. co takes his deposition. Your daughter's ins will handle this. She doesn't need her own atty. She will have difficulty making her own injury claim because of the facts.
Re: Hit stopped drunk driver - who's at fault?????
The insurance company's decision that your daughter is 100% responsible is not binding on anyone else, including the courts. Your daughter can argue in court that this conclusion is wrong. For purposes of her dispute with the other driver, the law doesn't much care what the insurer thinks happened.
Can the drunk driver sue? Of course -- your question says he already has. Can he win? Sure. It is quite possible for someone who is driving drunk to be in an accident which is entirely someone else's fault. This is what he is claiming happened.
Can she sue the other driver? Yes, but she must do so by filing a cross-complaint in his action against her. She can also sue the insurer for breach of contract and bad faith, and demand that it defend and indemnify her.
At some point she is going to need to examine the police and insurance experts who evaluated the accident to see why they reached their conclusions. She needs some relatively complex legal representation and, if the insurer won't give her a lawyer, she should hire one instead of trying to do this on her own.
I don't understand the last part of your question. If you are asking whether she can testify against him in his drunk-driving trial, the answer is yes - as long as the prosecutor subpoenas her. She can't demand to testify, and her testimony may not be necessary. She can't prove he was drunk, but her testimony may be helpful in proving that he was driving.
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