01:45 - Source: CNN
Las Vegas crash suspect 'distraught,' appears in court

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Lakeisha Holloway has been charged with murder after a crash on the Las Vegas strip

Danny Cevallos: The prosecution has a strong criminal case, but what about a civil case?

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

CNN  — 

Lakeisha Holloway has been charged with murder after a crash on the Las Vegas strip that left one person dead and 37 injured.

Law enforcement is calling the evidence against her in the criminal case “substantial.” They are probably right: With scores of witnesses, security videos and iPhone cameras at the scene, the prosecution has a strong criminal case.

But what about the civil case? What about the 38 people who were injured?

They may be out of luck. Why? Both cases involve the same evidence against the same defendant. Plus, the burden of proof for the plaintiff in a civil case is considerably lower than the burden of proof for prosecution in a criminal case.

Danny Cevallos

But if the criminal case is a strong one, then the civil case should be a slam dunk, right? In theory, yes. In practice, no.

Even though the 38 victims can sue the defendant and probably win, they likely wouldn’t be able to collect money. And in cases like this, it comes down to money; specifically, it comes down to insurance coverage.

Personal injury cases boil down to three interrelated factors: 1) liability 2) damages or injuries 3) the ability of a defendant to pay those damages. The absence or weakness of any one of those things will weaken the overall case, even if other factors are strong.

In this case, there is strong liability: the defendant appears to have intentionally caused harm. There are serious injuries, including death, so the damages portion of the case is strong, too. The problem is that third prong: money. There may not be money available to pay a judgment.

What about Holloway’s auto insurance? As a preliminary question, did she even have coverage? You may be thinking: “Well, of course she had car insurance — it’s the law.” And you’d be right. It is the law. That doesn’t mean everyone follows the law. Ask any personal injury lawyer and she will tell you that most citizens have no idea how many people drive “outlaw,” or uninsured.

Holloway might have been an uninsured driver. Her license was apparently suspended since June 2012 after she failed to provide the state’s Driver and Motor Vehicle Services Division with proof of insurance. She was also suspended in April 2013 for failure to pay court fines connected with other traffic citations.

Of those drivers who do drive legally, many often buy the cheapest bare-bones minimum insurance coverage. And a bad driver’s $15,000 policy just isn’t going to begin to cover serious, long-term injuries.

There are more barriers. Even if Holloway has any meaningful coverage, her insurance company may deny coverage. Insurance policies customarily have exclusions for intentional acts. It’s a paradox in our law: Insurance companies will cover accidentally driving onto a sidewalk and hitting others, but they won’t pay for the same conduct when done intentionally. The less culpable conduct is covered; the more culpable conduct is not.

This is where personal injury attorneys have to get creative. For example, the Las Vegas victims were walking — not driving — at the time they were hurt. These pedestrians may not realize that their own auto insurance might cover their injuries, but only if they have selected particular kinds of policies, like uninsured/underinsured protection. Often called “UM/UIM,” this coverage protects a responsible driver against all the maniacs out there with no coverage. Otherwise, there’s little difference between being hit by an uninsured driver and being hit by a meteor or a bolt of lightning.

The law requires you to insure the rest of the world against your negligent driving. However, the law does not require that you buy coverage to protect yourself in the event some nudnik in the rest of the world hits you and didn’t buy insurance.

Not everyone purchases these “UM/UIM” policies, especially if your insurance company sold you on the cheapest policy available. The rule of thumb is that the cheapest insurance policy is ultimately the cheapest policy – not for the driver, but for the insurance company that sold it.

There’s an enduring myth that plaintiffs are getting rich in court faking soft-tissue injures after getting in minor fender benders. There’s not a lot of discussion about the other side: what happens when victims are crippled or killed, and there’s just no insurance coverage for another person’s negligence or criminal activity.

In a way, the sad case of Lakeisha Holloway may serve to educate the public about a paradox between civil and criminal law. Even with the strongest prosecution case, the victims still often lose.

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