Finding other sources of payment for the seriously injured
LINDA and David Kubert were riding on their motorcycle when eighteen-year-old Kyle Best, who was driving and texting, crossed the center-line of the road, and collided with them. The Kuberts each lost a leg as a result of the accident. They sued Best. They also sued Best’s friend, 17 year-old Shannon Colonna, who was texting Best much of the day and sent a text message to him immediately before the accident. The trial judge dismissed the case against Colonna but the Kuberts appealed.
The appellate court was faced with this question: Can someone not in the vehicle, but who was texting the driver of that vehicle, be liable to persons injured because the driver was distracted by their text?
The court held that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had reason to know that the recipient would read the text while driving and thus be distracted. A remote texter has a legal duty to avoid sending text messages to one who is driving so as not to distract them. (The court decided that the Kuberts did not have enough evidence to show that Colonna knew Best was driving and that Best would read her text message while driving and be distracted.)
The above case happened and was decided in New Jersey so it is not California law (yet). But this brings to attention the issue of suing other persons not directly involved in the accident.
Sometimes negligent parties who are directly responsible for catastrophic injuries may not have enough assets. The fault of other liable persons should be evaluated. Where insurance coverage is involved, the intricacies of insurance law should be explored. If evidence that triggers insurance coverage is obtained, additional options for the injured may become available.
We once represented the parents of a teenager who was killed by a female drunk driver. The drunk driver’s insurance coverage was limited. We investigated if there were other persons who could be held responsible. We discovered that, prior to the accident, the drunk driver was at a bar drinking with a male companion, who was plying her with hard liquor such as whiskey, vodka and tequila right up to the minute before they left. Even though he knew that she was extremely intoxicated and could not safely drive her car, he allowed her to leave the bar on her own.
The male companion, who had limited assets, was living with his father in a house covered by his father’s homeowner’s insurance. As a relative who is a resident of that household, he was considered a “co-insured” under his father’s homeowner’s policy. Therefore, we sought to recover damages for our clients under his father’s homeowner’ policy coverage.
While there is no clear guidance on the law given these facts, our firm decided that there was enough basis to sue and include the male companion as a defendant in the case. Even though the male companion was not involved in the actual collision, his failure to prevent her from driving while he clearly knew she was drunk, may be grounds to advance a theory of general negligence.
As expected, the homeowner’s insurance rejected the claim. They argued that the policy insured home-related risks, not autos or injuries from car collisions. We took the position that but for his negligence, the female drunk driver would not have been on the road. His negligence, therefore, proximately caused the injuries that resulted in the death of our clients’ daughter. In our analysis of the provisions of the homeowner’s policy, we argued that there was coverage for this kind of negligence.
We continued to litigate and took the deposition of the male companion. We were prepared to take the case before a jury in a trial and the defense attorneys representing the homeowners’ insurance knew this, having worked against our firm before. They knew how seriously we take cases of this nature and how far we were prepared to go. In the end, the homeowner’s insurance carrier agreed to settle and paid the more significant policy limits to the family.
* * *
C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.
