Drunk Driving Victim Insurance Tactics

The Criminal-Conduct Exclusion: When the Driver's Own Policy Refuses to Pay

Many auto insurance policies include language excluding coverage for losses arising from criminal or intentional acts. When a driver is charged with DUI, their insurer may invoke this clause to deny the claim entirely. The argument is that driving while intoxicated was a deliberate choice, not an accident, and therefore falls outside the scope of coverage.

This creates a paradox for victims. The very fact that makes the case stronger — the driver's willful recklessness — may be the same fact the insurer uses to avoid paying. Your recovery does not end here, but it redirects. Your own uninsured motorist coverage becomes the primary source of compensation, stepping in as though the at-fault driver had no insurance at all.

Not all policies contain criminal-conduct exclusions, and not all courts enforce them the same way. An attorney can review the at-fault driver's policy language and the case law in your jurisdiction to determine whether the exclusion holds up or can be challenged.

Dram Shop Defenses: How Establishments Push Back

When you bring a dram shop claim against a bar or restaurant, their insurer has a standard set of defenses. The most common: the driver did not appear visibly intoxicated when served. The establishment's staff will testify that the patron showed no signs of impairment — no slurred speech, no staggering, no unusual behavior. This is the central factual dispute in most dram shop cases.

Surveillance footage cuts through this testimony if it exists. Video of the driver stumbling, spilling drinks, or exhibiting uncoordinated behavior contradicts the staff's account. Credit card receipts showing a long bar tab support the inference that the driver consumed a significant amount of alcohol on the premises.

The establishment may also argue that the driver's intoxication was caused by alcohol consumed elsewhere — before arriving at the bar or after leaving. This is why documenting the full timeline of the driver's evening matters. The stronger your evidence placing consumption at the establishment, the weaker this defense becomes.

Minimizing Punitive Exposure: The Insurer's Quiet Priority

Punitive damages represent the insurer's biggest financial uncertainty. Compensatory damages are calculable — medical bills, lost wages, a multiplier for pain. Punitive awards are discretionary and can exceed the compensatory amount by a large margin. The insurer's goal is to settle the case before punitive damages reach a jury.

One tactic is the early settlement offer that includes language releasing all claims, including punitive. The number may seem reasonable for compensatory damages alone but accounts for none of the punitive potential. Accepting it forecloses the possibility of a punitive award entirely.

Another approach is contesting the availability of punitive damages on legal grounds — arguing that the driver's conduct, while negligent, did not rise to the level of recklessness or willfulness required for punitive recovery. This argument is difficult to sustain when BAC evidence shows significant impairment, but insurers raise it to create negotiating leverage and to build a record for appeal if the case goes to trial.

Comparative Fault and Contributory Negligence in DUI Cases

Even in cases where the other driver was clearly intoxicated, the insurer may argue that you shared some fault for the crash. Perhaps you were exceeding the speed limit, failed to yield, or were distracted. In comparative fault states, any percentage of responsibility attributed to you reduces your recovery proportionally.

This tactic is particularly aggressive in DUI cases because it attempts to shift attention away from the impaired driver's conduct and onto your own actions. The argument can be effective with juries if the evidence supports it, so your own driving behavior at the time of the crash matters.

A few states follow contributory negligence rules, which bar recovery entirely if you share any fault at all. In those jurisdictions, the insurer's incentive to establish even minimal contributory fault on your part is enormous. Documenting your own compliance with traffic laws — speed, signals, right-of-way — strengthens your defense against this tactic.

This is general information, not legal advice. Consult a licensed attorney in your state for guidance specific to your situation. This site is an independent information resource, not a law firm.