Ethical dilemma: car accident with pedestrian, legal system

[Thrasymachus]

Back in late 2010 I hit a drunk pedestrian with my car late at night. Recently I got served papers by a police officer for a civil lawsuit regarding this. My insurance is also providing a defense attorney. Normally, like any sane person I avoid the legal system, but this has exposed me to it. According to my appointed lawyer, the way system works is he will try to put 100% of the blame on the pedestrian, while the opposing attorney in turn will try to pin the blame 100% on me.

According to my lawyer in most cases he wins and the other party gets nothing, and due to police report and surrounding facts he feels confident. This doesn't sit well with me. Is there anything I could possibly do to get the plaintiff a better settlement than otherwise possible, without at the same-time going over the $100,000 policy limit of my insurance?

[viniketa]

According to my appointed lawyer...

That is an ethical dilemma. Essentially, the attorney is working for the insurance company rather than for you. Insurance companies are in the business of collecting premiums, not paying claims. They do not want to pay. I suppose you could speak to the attorney and ask to be allowed to testify that you think the other party is due an amount for medical bills (but not pain & suffering), but that is unlikely to be allowed. I'm not familiar with NJ law, but the only other option might be for you to offer to reimburse medical costs out-of-pocket, after the case has been to court.

[catmoon]

Well, if you win, you could give the settlement money to the pedestrian. However, the legal system might view this as an admission of guilt. Check with your lawyer.

[viniketa]

Of course, if you 'win', you don't get money (perhaps in NJ, payment of court costs by the losing party), but catmoon is right about the legal implications of personal payments to the pedestrian.

There might be one more option, which would be to organize some type of 'community fund' to pay medical costs for the pedestrian (and perhaps pay for re-hab, if appropriate). We see these all the time for victims of accident or disease.

[David N. Snyder]

It might help to also know a few more details; what is it your fault? Was the pedestrian in a cross-walk? Or was he jay-walking? Did he just stagger out into the street as you were driving? Was there no opportunity to stop?

I agree with some of the other posts above; if you offer more money even from within the policy limits, you will be showing an admission of guilt. If it is not your fault, it is best to leave it in the hands of the attorney and let the settlement cover his medical costs and leave it as small a number as possible so that your insurance doesn't drop you or in the much worse scenario, they don't go after all of your assets when it goes above the policy limit.

[Thrasymachus]

David,
According to the police report:
He was drunk 3x over the legal limit. It was around 4 am at night in low visibility conditions.

Not only was he not in a crosswalk, he was not even walking across the street. He was literally walking in the street with his back facing me like he was a car himself and there were sidewalks on either side of that road, so it was not like he had to be in the street at all. I remember that night being quite cold, cold enough that I decided to wear a thin sweater jacket, but the pedestrian whom I hit was shirtless. Also there was another shirtless guy with him, who left after examining him on the floor after the accident.

Still...
I didn't stop in time and hit him with a 2,000 lb+ vehicle. and injured him. I thought of visiting him in the hospital, but figured nothing good could come of it.

It reminds me of this passage:

Deschooling Society
Chapter 7 Rebirth of Epimethean Man

Surreptitiously, reliance on institutional process has replaced dependence on personal good will. The world has lost its humane dimension and reacquired the factual necessity and fatefulness which were characteristic of primitive times. But while the chaos of the barbarian was constantly ordered in the name of mysterious, anthropomorphic gods, today only man's planning can be given as a reason for the world being as it, is. Man has become the plaything of scientists, engineers, and planners.

We see this logic at work in ourselves and in others. I know a Mexican village through which not more than a dozen cars drive each day. A Mexican was playing dominoes on the new hard-surface road in front of his house--where he had probably played and sat since his youth. A car sped through and killed him. The tourist who reported the event to me was deeply upset, and yet he said: "The man had it coming to him."

At first sight, the tourist's remark is no different from the statement of some primitive bushman reporting the death of a fellow who had collided with a taboo and had therefore died. But the two statements carry opposite meanings. The primitive can blame some tremendous and dumb transcendence, while the tourist is in awe of the inexorable logic of the machine. The primitive does not sense responsibility; the tourist senses it, but denies it. In both the primitive and the tourist the classical mode of drama, the style of tragedy, the logic of personal endeavor and rebellion is absent. The primitive man has not become conscious of it, and the tourist has lost it. The myth of the Bushman and the myth of the American are made of inert, inhuman forces. Neither experiences tragic rebellion. For the Bushman, the event follows the laws of magic; for the American, it follows the laws of science. The event puts him under the spell of the laws of mechanics, which for him govern physical, social, and psychological events.

[David N. Snyder]

Thanks for that info. You are not dismissing it as easily as the tourist and you certainly did not have intention to do any harm and there appears to have been no alternative for the outcome. Thank goodness, he is still alive; many car-pedestrian accidents result in fatalities.

[BuddhaSoup]

Thrasymachus:

You've received some good feedback, especially from David. I'm a lawyer and while I can't give you legal advice, I will offer a few comments that I hope can be helpful.

I practice law with a strong sense of ethics and a love for the law. Having said that, the legal system is not always set up for just and ethical results. IN an old story, it's said that a litigant once complained to old Judge Cardozo that he was not getting justice. "Justice?" responded the future Justice Cardozo, "in the courts you get law!"

The law can be an ass. So, be careful with your desire to bring metta to the plaintiff, as it is likely that his lawyer is going to try to hit you (and your carrier) for as big a judgment as he can obtain. Most plaintiff's lawyers are paid on a contingent fee, and it is usually 30-40 percent of the judgment or settlement. Having said that, a case as you describe may be ripe for settlement, as there are possibly bad facts on both sides of the case. It is the law in some states that pedestrians always have a right of way, and it can be found as per se negligence if an auto hits a pedestrian. In some states, the comparative negligence of the plaintiff can reduce or deny a judgment's value, for example, an intoxicated pedestrian in a roadway.

Trust your lawyer. He knows the negligence and contributory negligence laws of your state. He has read the police report, and he understands the good and bad facts of your case. He may have interviewed one of the police officers, and has a sense of how the police testimony will come out. He's reviewed the medical records of the plaintiff, and has an idea of the nature and extent of the injuries. He also knows the plaintiff's attorney, and knows whether this lawyer can try a case, or not, and whether the opposing lawyer settles most of his cases. He's likely also had some tentative conversations about what it would take to settle the case. He is working for the insurance carrier, but he also has a real incentive to get the settlement or resolution of the case on the most favorable terms possible.

If you have any questions about how to respond with metta and with ethics about your case, please bring these questions to your lawyer. Don't contact the plaintiff, and don't discuss having a fundraiser for his medical bills. As the law is an ass sometimes, be very careful about doing or saying anything that the opposing lawyer will take as an admission of liability.

[Virgo]

be very careful about doing or saying anything that the opposing lawyer will take as an admission of liability.

Good advice.

Kevin