Butler Kahn recently obtained a $689,000 settlement in a car accident case involving a driver who was DUI. Despite dealing with some complicated facts, we were able to get a great result for our client using an effectively-timed Rule 68 Offer.
Here’s more about the case.
Facts of the Car Wreck
At approximately 3:00 A.M. in Dalton, Georgia, Mr. Williams* and his cousin headed home after visiting some local restaurants. Mr. Williams was in the passenger seat and his cousin was at the wheel. We don’t know exactly how the collision happened, but after only ten minutes of driving, Mr. Williams’ cousin lost control of the car. The car flipped and landed on its roof.
When police officers arrived on scene, they found Mr. Williams alone, severely injured, lying in the middle of the road. His jaw had been broken so that he could barely talk, the bones in his neck had been fractured, and he appeared to have suffered a traumatic brain injury.
At first it looked like Mr. Williams was the only person involved in the wreck. But as the officers continued to investigate the wreck, they noticed all of Mr. Williams’ injuries were to his right side, which was not normal for someone who was injured in the driver’s seat. Mr. Williams also had “a make-shift tourniquet” on his arm – something he likely could not have put on his arm on his own.
Inside the overturned car, police officers found an open container of beer, some clothes, and a cell phone. Officers confiscated the cell phone. In the middle of the road, officers found a pay stub with Mr. Williams’ cousin’s name.
The officers ran the car’s license plate and got a phone number. They called it. The phone number led to Mr. Williams’ uncle. An officer asked Mr. Williams’ uncle if he drove a Honda Accord and wore the specific clothes that they’d found in the car. The uncle responded that he didn’t wear those clothes, but his son did. Then the officer asked for Mr. Williams’ cousin’s cell phone number, got it, and called it. As the officer called, the phone that the officer had confiscated from the car lit up. That solved the mystery – Mr. Williams’s cousin had been driving the crashed car.
But where was he?
The cousin told officers a stranger helped him out of the car. Instead of calling for help as Mr. Williams laid on the ground bleeding, the cousin took off on foot. When police officers caught up with him later, he told them that he had gone to his aunt’s house which was about 0.3 miles away. Then, the cousin claimed that he had come back to the scene of the wreck, but by the time he got back to the scene, the police were already gone. So, instead of calling the police or finding out how his cousin was, he allegedly then went to his friend’s house.
The officers knew the cousin’s story was a lie. The officer’s report even said so.
Police were on scene over an hour, and it doesn’t take a young man over an hour to walk a half-mile. Instead, officers believe the cousin drank too much and got into a wreck because of it, then fled the scene. Officers arrested the cousin on multiple charges.
Personal Injuries Sustained by Our Client
The injuries that our client suffered in the collision were serious. Mr. Williams suffered an open jaw fracture, shoulder fracture, back fracture, severe road rash, and a head injury. He had to undergo multiple surgeries, including shoulder surgery which left him with a large, permanent scar.
Mr. Williams also had surgery to have his jaw wired shut. For nearly 30 days, he couldn’t eat, he couldn’t talk normally, and he could only drink through a straw. Life for Mr. Williams was rough. Luckily, Mr. Williams is young and has recovered well, but he went through a lot to get where he is today.
Potential Dram Shop Case
When our client hired us, we explored whether this may be a dram shop case. Dram shop cases occur when a business “knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle.” O.C.G.A. § 51-1-40(b).
In this case, the driver and Mr. Williams had been to several restaurants. That makes it hard to win a dram shop case because we would have a hard time proving which of those restaurants had served the drinks that pushed the driver over the line to being “impaired.” In addition, to win a dram shop case we would have to prove that not only that the server knew that the cousin was drunk, but knew that the cousin was about to drive a car. If we couldn’t nail down where Mr. Williams’ cousin got drunk, we would have an even tougher time proving that the server knew Mr. Williams’ cousin would drive. Because of this, we ultimately decided it was not in our client’s best interest to pursue a dram shop case theory.
Focus Groups and Suing A Family Member
When we have unusual cases, our firm sometimes uses “focus groups” to find out what a jury would think of the case. Focus groups help us explore the strong parts and the weak parts of our cases. Typically, we’ll bring together 10 or 20 people to talk informally about the case and gather opinions. After the presentation, the group may be asked specific questions or asked to fill out surveys about the case. The group of people is supposed to represent the potential jury we could have if we went to trial.
In most car wreck cases, the at-fault driver is a stranger to our client. Here, we had the unusual situation in which our client sued his family member. Our focus groups showed that some people believe that you should never sue a family member, no matter what the situation is. Others think that when a cousin crashes a car and leaves you injured and bleeding on the roadway by yourself, a lawsuit makes sense. We felt comfortable bringing the lawsuit because it was the only way to collect a reasonable settlement from the insurance company, but the focus group taught us something important – if we took the case to trial, some of our jurors might not like the idea of an injured person suing his cousin, no matter what the situation was. It was a risk we had to keep in mind.
Getting into a Vehicle when the Driver is Drunk
In Georgia, if a plaintiff is found to be 50% or more negligent, that plaintiff is barred from receiving any award at trial. In other words, a plaintiff who is found at trial to be more than 50% at fault gets zero dollars. Our focus group also taught us that some jurors would blame our client for getting in the car with his cousin when his cousin was drunk. Although there was no evidence that our client knew his cousin was drunk, our focus group showed us that some jurors would make that assumption (and frankly, we could see why). Because of this, we faced the risk that a jury could find Mr. Williams 50% or more negligent for getting in the car with his cousin – and if that happened, our client would get nothing. It was another risk to keep in mind.
$689,000 Personal Injury Settlement
Our client’s case had some strong points. Our client had not been driving, the driver was drunk, our client was seriously hurt, and the driver ran away after the collision. But it also had some weak points. Our client was suing a family member, and some jurors might (understandably) assume that our client knew or should have known that the driver had been drinking.
After talking it over with our client, we decided to make an offer using Rule 68. A Rule 68 offer can be an effective tool for settlement because if the Court’s judgment (usually based on the jury’s verdict at trial) exceeds the offer by 125%, then the defendant is responsible for paying attorney’s fees in addition to the verdict. See O.C.G.A. § 9-11-68. In other words, it forces the insurance company to realistically assess the value of the case, and to face some risk if they get it wrong.
In our Rule 68 offer, we gave the driver and his insurance company the opportunity to settle the case for $689,000. That amount was over the driver’s insurance limits, but because we had made an earlier offer for the policy limits that the insurance company should have accepted but didn’t, we had leverage. The insurance company now had thirty days to respond to our offer for $689,000.
Twenty-nine days after we sent that Rule 68 offer, the insurance company accepted it. The case was resolved favorably for our client, who was very happy with his personal injury settlement.
* The names in this writeup have been changed for the privacy of those involved.