Using Ark. Code Ann. § 16-118-107 (Civil Action For Damages By Crime Victim)
To Enhance Recovery In A Personal Injury Case Involving Drunken Driving
We wanted to share with you a strategy we recently used to enhance our client’s
recovery in a head-on collision drunk driving case. Of course you know that Ark. Code
Ann. § 16-118-107 creates a civil cause of action for damages for conduct that would
constitute a felony under Arkansas law, but more importantly for our purposes in this
case, it also provides for the mandatory award of costs and attorney’s fees to a
prevailing plaintiff, and it does not require that the defendant be charged or convicted of
a felony, only that the proven conduct would constitute a felony under Arkansas law.
Most auto liability insurance policies provide that the carrier “will pay all amounts for
which the insured becomes legally obligated,” subject to limits and exclusions in the
policy. While punitive damages are often excluded, court awarded costs and attorney’s
fees fall within this coverage definition.
Our case presented facts that would support both compensatory and punitive
damages -- the defendant was very drunk, speeding, and driving on the wrong side of
the road . We were confident that we would get a fair compensatory award and the
odds were good that we would receive a substantial punitive award. The only catch
was that there was no insurance coverage for punitive damages. Remembering the
mandatory attorney’s fees provision of the Civil Action For Damages By Crime Victim
statute, we searched for felony statutes that fit our facts and found two: First Degree
Battery (Ark. Code Ann. § 5-13-201) and Aggravated Assault (Ark. Code Ann. § 5-13204. Each presents jury questions of actual or threatened “serious physical injury” and
“circumstances manifesting extreme indifference to the value of human life.”
We amended our complaint to assert the statutory causes of action and
explained to the defense we would be seeking not only compensatory and punitive
damages but that we would be asking the court to honor our contingent fee contract
when considering the Chrisco factors in determining a proper attorney’s fee award (See,
Phelps v. U.S. Credit Life Insurance Company, 340 Ark. 439 (2000) and Chrisco v. Sun
Industries, Inc., 304 Ark. 227, 229, 800 S.W.2d 717 1990)) and apply the contingent fee
percentage to the total recovery, including any punitive damages award, rather than
calculating attorney’s fees under the standard “lodestar” method by multiplying hours
times customary hourly rates.
We prepared three jury instructions for the statutory claims, but the case settled
in mediation so the instructions remain untested. Here they are for your consideration.
Claim For Damages Based Upon First Degree Battery --- Burden of Proof
AMI 418 Modified
[Plaintiff] claims damages from [Defendant] for First Degree Battery and has the
burden of proving by a preponderance of the evidence each of two essential
propositions:
First, that [Defendant] caused [Plaintiff] serious physical injury;
Second, that [Defendant] caused such injuries under circumstances manifesting
extreme indifference to the value of human life.
If you find from the evidence in this case that both of these propositions have
been proved, then your verdict should be for [Plaintiff]; but if, on the other hand, you find
that either of these propositions have not been proved, then your verdict should be for
[Defendant].
Authorities: Ark. Code Ann § 16-118-107 (Civil Action By Crime Victim)
Ark. Code Ann. § 5-13-201 (Battery In The First Degree)
AMI 418 (Damages Based Upon Battery -Modified)
Claim for Damages Based Upon Aggravated Assault— Burden of Proof
AMI 417 Modified
[Plaintiff] claims damages from [Defendant] for Aggravated Assault and has the
burden of proving by a preponderance of the evidence each of two essential
propositions:
First, that [Defendant] purposely engaged in conduct that created a substantial
danger of death or serious physical injury to [Plaintiff]; and
Second, that his conduct manifested an extreme indifference to the value of
human life.
Authorities: Ark. Code Ann § 16-118-107 (Civil Action By Crime Victim)
Ark. Code Ann. § 5-13-204 (Aggravated Assault)
AMI 417 (Damages Based Upon Assault -Modified)
Serious Physical Injury - Definition
"Serious physical injury" means physical injury that creates a substantial risk of
death or that causes protracted disfigurement, protracted impairment of health, or loss
or protracted impairment of the function of any bodily member or organ.
Authorities: Ark. Code Ann. § 5-1-102(21)
Other traffic offenses may support an award of costs and attorney’s fees under §
16-118-107 as well. Negligent homicide resulting from texting while driving is just one
example.
Robert M.
Cearley, Jr.
Cearley Law Firm, P.A.
212 Center Street, Suite 200
Little Rock, Arkansas 72201
501-372-5600
501-374-3463 Fax
bob@cearleylawfirm.com