Legal Question in Personal Injury in New York
I am really distraught. My stepson, my wife's only child, died in a car accident in which his friend was driving 2 1/2 years ago. We have a wrongful death suit against his friend, who was at just a shade below the legal limit for drunken driving. We bear no ill will against the driver, and are suing only his insurance company. But our attorney tells us that according to the law, the fact that he was marginally drunk (he paid a fine and got off with no jail time), killed our son while driving his company's vehicle, and the company has a million-dollar insurance policy mean nothing. Our son, who was 21, was making a lot of money on Wall Street, and the entire case hinges on whether a) a third passenger in the car, who also survived, can say that our son had conscious pain and suffering (he will not, probably to protect the driver), and b) that we can prove that our son had sufficient earnings potential to support his mother in her declining years. (We have very little money and at 58 years old I have been out of work for 2 1/2 years, and probably will never get another meaningful full-time job.) We are devastated to find out that an insurance policy means nothing, that we stand to gain nothing from the loss of our son. Can this really be the way the law works? Is this what America and its millions of lawyers have devised to excuse the guilty, punish the victim and make themselves rich?
3 Answers from Attorneys
I am very sorry for your loss. Attorneys for accident victims always try to get the most compensation for their clients, however, the law is complex and it is difficult to get money from insurance companies who come up with all kinds of excuses not to pay out. You can prove the case by hiring experts to testify at trial, such as a medical expert to prove consious pain and suffering and an accounting expert to prove financial damages. The surviving passenger can only testify as to what he observed and heard, but he is no expert on the injuries or pain due to the impact, you need an expert doctor to testify to that. Unless the insurance company for the drunk driver has refused coverage under the policy, you should be able to prove your case in court with the help of appropriate experts. It is also important to know where this "friend" got drunk before the accident; for example, it it happned at a bar, the bar should also be sued. You should get a second opinion from another lawyer, feel free to call my office at 718-616-1414 and/or e-mail me at: [email protected].
Regards,
Tanya Gendelman, Esq.
www.WeSettle.com
If your step-son made a good salary, there should be a large loss of earnings claim. As for pain and suffering, the case may need a pathologist to review the records and give and opinion. There may also be a claim for apprehension of death, which can result in a large award. I am a former federal and State prosecutor and now handle personal injury cases. Feel free to check out my web site and contact me if you are not satisfied with your attorney and are looking to switch.
Firstly, I believe your many questions warrant a meeting with your attorney, not a phone call. You are deserving of clear answers and a full explanation as to how the wrongful death law operates on a case like yours. You don't mention whether your late son resided with you, contributed toward household support, etc. There are two avenues of damages usually pursued in a wrongful death case. One is lost income to the next-of-kin dependents, the other compensation for conscious pain and suffering before death. Whether either measure of damages exists here, and to what extent, are the critical issues you should explore with your attorney. If, after your meeting, you believe you are not being competently represented, you know your options (see answers above). Best, M. E. Zuller
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