Two cases with two different goals

When a drunk driver causes a crash, the State of Missouri may charge the driver with driving while intoxicated (RSMo § 577.010). It may also charge driving with a blood alcohol level of 0.08 percent or more (RSMo § 577.012). That case belongs to the prosecutor. Its goal is punishment. You are a witness in it, not a party.

Your claim for medical bills, lost pay and your suffering is a civil case. You control it, and it runs on its own schedule. It also needs less proof. In a civil case, the jury decides what is more likely true than not. In the criminal case, guilt must be proven beyond a reasonable doubt. Your civil case does not have to wait for the criminal case to end. But the timing of the two often affects strategy.

Punitive damages against a drunk driver

Regular damages pay for your losses. Punitive damages are extra money meant to punish and deter. Missouri law limits them. You must prove, by clear and convincing evidence, that the driver meant to harm you without just cause. Or you must prove the driver acted with deliberate and flagrant disregard for the safety of others (RSMo § 510.261). Clear and convincing evidence is a higher level of proof than usual.

You cannot ask for punitive damages in the first court filing. You must later ask the court for permission, with supporting evidence. That request must come no later than 120 days before the final pretrial conference or trial.

Whether a drunk driving crash meets this standard depends on the facts. It depends on how impaired the driver was, what the driver knew, any past offenses and how the driver was driving. See punitive damages in Missouri.

The limit on punitive damages, and when it does not apply

Missouri caps punitive damages at $500,000 or five times the net judgment, whichever is greater (RSMo § 510.265). The cap does not apply if the driver pleads guilty to, or is convicted of, a felony arising from the crash. DWI becomes a felony in several situations. One is when the driver acts with criminal negligence to cause physical injury, serious physical injury or death (RSMo § 577.010). In 2014, Missouri’s highest court refused to apply the cap to a fraud claim, and how far that ruling reaches is decided case by case.

Claims against a bar or restaurant

Missouri’s dram shop law starts with a general rule (RSMo § 537.053). Serving alcohol is not the legal cause of injuries that a drunk person causes. But there is a narrow exception. It covers businesses licensed to sell drinks by the glass to be drunk on site. You must prove by clear and convincing evidence that the business:

• knew or should have known it served someone under 21, or
• knowingly served someone who was visibly intoxicated.

“Visibly intoxicated” means the drunkenness showed. The person was badly uncoordinated or had serious physical impairment. A blood alcohol level is not, by itself, enough to prove it. But it can be relevant evidence.

The law covers bars and restaurants serving by the drink. It does not cover a store that sold a sealed bottle. It also does not let an adult drinker sue over his or her own drinking. Receipts, bar tabs, security video and staff testimony are the usual proof. They need to be requested quickly.

How fault and payment are split

If both the driver and a bar are responsible, Missouri law decides how payment is split (RSMo § 537.067). A party found 51 percent or more at fault can be made to pay all of the regular damages. A party under that pays its own share. Punitive damages work differently. Each party pays only the percentage of punitive damages tied to its own fault.

Insurance is often the real limit. Many policies exclude punitive damages or leave them uninsured. A drunk driver may carry only the Missouri minimum. Your own uninsured and underinsured motorist coverage is often part of what you recover.

Working alongside the criminal case

Harjot Singh Padda, JD follows the criminal case. He gets the police reports and test results as they come in. Where it helps you, he works with the prosecutor’s victim advocate. Your civil claim is handled on a contingency fee under a written agreement that sets out the percentage and how costs are handled. The general deadline to file is five years (RSMo § 516.120). For a wrongful death, it is three years.

Common questions

Related reading

• Punitive damages in Missouri
• Car accident claims
• Missouri wrongful death: who can sue
• Uninsured motorist claims