INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

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What To Do If You Are In An Accident With An Underinsured Driver

Motor vehicle accidents are a daily occurrence. Sometimes accidents are minor, resulting in property damage and temporary bruising. But sometimes an accident is much more serious. The National Highway Traffic Safety Administration reported 334 fatal car crashes in Massachusetts in 2009 (the estimate for 2010 is similar). When someone is seriously injured or killed in an car accident, the financial and personal cost to the victim and their family is tremendous. Under these circumstances, an investigation would be done to determine if the accident was caused by someone else’s negligent driving, and if so, a claim would be made against that person’s automobile insurance carrier.

All automobiles registered in Massachusetts are required to carry liability insurance to compensate those injured by negligent driving. It does not matter if the driver owns the automobile or not; if one’s negligent driving causes an accident that results in someone being injured; and the injured person has accident-related medical expenses exceeding $2,000, or has suffered a fracture, loss of limb, sight or hearing, serious disfigurement or was killed in the crash, then the insurance on the car responsible for the accident applies. (There are certain exceptions to this rule, such as if your vehicle was stolen or otherwise operated without your consent). If the injuries do not meet any of the legal liability criteria above, then the injured party is limited to the no-fault accident benefits available from their own automobile insurer (see prior posting on this blog from September 17, 2010, for an explanation of Massachusetts No-Fault Automobile Insurance Law.

In theory, those who are injured and the families of those killed by the negligent driving of another can recover the fair value of their damages from a negligent driver’s motor vehicle insurance carrier. But what happens if the negligent driver is underinsured? Massachusetts auto insurance requirements mandate a mandatory minimum amount of motor vehicle liability insurance that all vehicles must carry. Currently, the mandatory coverage for bodily injury to others is $20,000 per individual and $40,000 per accident. This means that the insurer will pay a maximum of $20,000 to any one injured person and $40,000 total for all claims combined, no matter how many different people are injured.

As you can see, the mandatory minimum insurance amount is rarely adequate to compensate someone who has been seriously injured or the family of someone killed in a car accident. The remainder of this blog will discuss the potential options available to victims of a motor vehicle accident when the negligent driver’s insurance is insufficient.

Underinsurance Coverage

If you own an automobile, part of the coverage available to you on your auto insurance policy is coverage for underinsured motor vehicles (Part 12 of the Massachusetts Automobile Insurance Policy). Underinsuranceprovides coverage to you, your household members and anyone else in your car, when they are injured in an accident and the responsible driver does not have enough insurance to compensate those injured. It is optional coverage on the standard Massachusetts Automobile Insurance Policy that is generally available to all who wish to purchase it.

All too many times we encounter car accident victims who do not know what underinsurance is and don’t know if they have underinsurance coverage on their policy. We strongly encourage everyone to check their auto policy, or contact their auto insurer, to determine their current underinsurance limits, and consider raising them. Although you will be charged an extra premium for this (and you cannot purchase more in underinsurance coverage than you purchase bodily injury coverage), it can be a very powerful safety net if you become a victim of an uninsured or underinsured driver. Given the low amount of required coverage in Massachusetts, this is one way to affirmatively protect yourself and your family.

Other Auto Insurance Coverage

If the negligent driver is operating a car that is not his own, an investigation should be done to determine if other insurance coverage exists to provide additional benefits. In some circumstances there may be multiple policies that provide coverage for a car accident victim. For instance, if the negligent driver was in the course of his employment at the time, there may be additional business insurance policies or employer’s liability policies that apply.

Similarly, certain excess insurance policies and homeowner’s insurance policies provide additional coverage for automobile accidents. If you are the victim of a motor vehicle accident, and the responsible party is uninsured or underinsured (and you do not have sufficient underinsurance), your attorney should thoroughly investigate the potential for coverage under an excess insurance, homeowner’s insurance, business, or employer’s liability policy. Often times the additional insurer will dispute that their coverage applies and your attorney will have to litigate the insurance coverage issue as well as the underlying car accident claim.

Additional Responsible Parties

If your attorney has fully investigated the existence of insurance benefits and there is still insufficient coverage to compensate the injured party, what other options are available? Under these circumstances, it is important that your attorney look closely at the actions and behavior of the negligent driver, to see if there are additional individuals that contributed to causing the accident or the driver’s behavior. For example, if an investigation determines that the driver was under the influence of alcohol, then potential claims may exist against the person or persons responsible for providing the alcohol.

Bar and Restaurant (Dram Shop) Liquor Liability

Massachusetts General Laws Chapter 138 § 69 prohibits commercial vendors of alcohol (called dram shops) from serving any intoxicated person. However, this law does not make drinking establishments automatically liable for car accidents that result from the over-serving of a patron. Massachusetts recognizes liability for bars and restaurants that over serve someone that they knew or should have known was impaired, when that person causes an accident after leaving the establishment.

The requirements for a liquor liability case are often difficult to establish. Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served their last drink. Jurors are generally skeptical about claims against bars and restaurants for over serving adult patrons, and a lawyer must aggressively pursue evidence that the intoxicated driver actually appeared intoxicated while being served. Proving that the patron appeared drunk can be done through eye witness accounts, or by medical and human factors expert analysis based on the person’s height, weight, sex, and blood alcohol content.

Even if you are successful in proving a drunk driver was over-served by a bar or restaurant that does not necessarily mean you will be able to recover monetary damages. General commercial liability insurance policies for bars and restaurants typically do not provide coverage for injuries cause by drunken patrons. For years restaurants and bars operating in Massachusetts were allowed to operate without any type of liquor liability insurance and judgments against the establishments proved to be uncollectable. In late May, 2010 Massachusetts began requiring bars and restaurant to carry a minimum of $250,000 per person/$500,000 per accident liquor liability insurance coverage. Proof of coverage is now required for renewal of the establishment’s liquor license. This law has greatly improved the ability of victims to recover when they are harmed by an intoxicated patron.

Social Host Liability

If it is determined that the intoxicated driver was not drinking at a bar or restaurant, but rather at a private home or event, there is the possibility of a claim against the people responsible for providing the alcohol. This type of claim is generally referred to as a social host liability claim. The proof requirements for a social host liability claim are similar to a dram shop liability case: generally you must establish that a social host knew or should have known that his guest was drunk, but nevertheless gave him or permitted him to take an alcoholic drink. The difficulty often lies in proving that the host actually supplied the alcohol (if a guest brings their own alcohol to your home, for example, the host is likely not responsible). Also, we expect those working in a bar or restaurant to be on the lookout for drunk patrons. There is not the same expectation for a social host. Both Dram Shop and Social Host Liability claims are easier to establish if the driver is under the legal drinking age, but in all instances they can be challenging cases to prove.

The process of receiving compensation for a victim of a motor vehicle accident caused by an uninsured or underinsured driver can be a highly complex task of unraveling multiple parties, claims, and insurance coverage. If you believe you have a dram shop or social host liability claim, or are otherwise injured in an accident where the responsible party does not have enough insurance, make sure you speak with a lawyer with sufficient knowledge and experience to fully investigate the matter and obtain the best possible outcome for you. At SUGARMAN we have experience in all types of automobile accident, dram shop, social host liability, and coverage dispute claims. Please contact us if we can assist in any way.

Call us at 617-542-1000 or email info@sugarman.com