December 17, 2007
DRAM SHOP INSURANCE
By: Daniel Duffy, Principal Analyst
You asked for summaries of the dram shop laws in New England and if any state requires its liquor licensees to carry dram shop insurance.
In general, dram shop laws allow someone who has been injured by an intoxicated individual to sue the establishment that served alcoholic beverages to the intoxicated individual. Connecticut makes someone who sells liquor to an intoxicated person liable if the intoxicated person injures another and limits recovery to $250,000 in a single accident.
Maine makes sellers liable if they negligently or recklessly provide alcoholic beverages to a visibly intoxicated individual or a minor. The law sets a standard to determine recklessness and limits damage awards to $250,000 per accident. It also makes a seller's attendance at an approved server education training course and implementation of responsible server practices admissible as evidence that the server was not negligent. It requires the insurance department to collect and keep data on liquor liability insurance cost and claims.
In Massachusetts, someone who suffered physical injury, property damage, or consequential damage may sue a licensed liquor seller who served an intoxicated person. A licensee may be required to carry dram shop insurance following a disciplinary proceeding.
New Hampshire makes a seller liable if he negligently or recklessly provides alcoholic beverages to a minor or intoxicated individual. Proof that someone served without requesting proof of age is admissible as evidence of negligence.
Rhode Island makes sellers liable if they negligently or recklessly serve alcoholic beverages to a minor or intoxicated individual. The law sets the standard for determining recklessness. It allows evidence about the seller's serving practices to be admitted. It requires the insurance commissioner to collect and keep data on liquor liability insurance cost and claims.
Vermont makes a seller liable if he provides alcoholic beverages to: a minor, an apparently intoxicated person, someone after closing time, or someone whom it would be reasonable to expect would be under the influence as a result of the amount served. Evidence concerning the seller's responsibility is admissible and may include, among other things, training servers in liquor law and how to recognize that patrons are becoming intoxicated.
We identified laws in two other states on dram shop insurance. Michigan requires all liquor license holders to carry at least $50,000 of dram shop insurance or file other proof of financial responsibility. Illinois requires holders of temporary permits for special events to carry it.
Connecticut's dram shop act makes sellers liable if they sell alcoholic beverages to an intoxicated person who injures a person or property because of the intoxication. Under the act, the maximum amount an injured person can recover is $250,000 for injuries to a single person and $250,000 in aggregate for injuries to more than one person. The law requires aggrieved parties to give notice to the seller within 60 days, but the time it takes, up to 180 days, to appoint an executor, administrator, conservator, or guardian does not count toward the deadline. Suits must be brought within one year (CGS § 30-102 as amended by PA 07-165). The Connecticut Supreme Court recently established a common law (judge made) right for a person to file a negligence lawsuit against a seller. The decision is described in OLR Report 2003-R-0151. But legislation later prohibited such suits if the drinker is at least 21.
The Maine Dram Shop Act makes someone who negligently or recklessly sells, gives, or otherwise provides liquor to a minor or to a visibly intoxicated individual liable for damages proximately caused by the minor's or intoxicated individual's consumption. Such service is negligent if the server knows, or if a reasonable and prudent person in similar circumstances would know, that the individual is a minor or visibly intoxicated.
Such service is reckless if the server intentionally serves while knowing that the individual is a minor or is visibly intoxicated and the server consciously disregards an obvious and substantial risk that serving the liquor will cause physical harm to the drinker or to others. The disregard of the risk, when viewed in light of the nature and purpose of the server's conduct and the circumstances known to the server, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would follow in a similar situation.
The act allows damages to be awarded for property damage, bodily injury, or death proximately caused by the consumption. It also allows damages to be recovered in accordance with other state laws.
The act limits damage awards under the act for losses other than medical treatment against both the server and his employees to $250,000 for all claims arising out of a single accident. Actions must be brought within two years.
Proof of the server's responsible serving practices is admissible as evidence that the server was not negligent or reckless. “Responsible serving practices” may include the facts that the server and employees attended an approved server education training course and that the server implemented responsible management policies, procedures, and actions. The law sets standards for approving server education training courses.
The law immunizes sellers from damages resulting from a good faith refusal to serve (1) to someone who fails to show proof of age or reasonably appears to be a minor or (2) in good faith to prevent the drinker from becoming intoxicated.
The law requires the superintendent of insurance to collect and keep records on (1) the names and number of companies providing liquor liability insurance, (2) the number and dollar amount of premiums for the insurance, and (3) the number and dollar amount of claims paid (Me. Rev. Stat. Ann. T. 28-A §§ 2501 to 2521).
Massachusetts prohibits selling or delivering liquor to an intoxicated person (Mass. Gen. Laws Ch. 138 § 69).
In suits for personal injury, property damage, or consequential damage caused by, or arising out of, the negligent service of alcoholic beverages to an intoxicated person by a liquor licensee, Massachusetts prohibits the intoxicated person from suing the seller for injury unless the licensee's conduct was willful, wanton, or reckless (Mass. Gen. Laws Ch. 231 § 85T).
In cases in which the state has required a liquor licensee to carry liquor liability insurance as a condition of license modification, reinstatement, or renewal following a disciplinary proceeding, the law requires the licensee to:
1. notify the insurer that the policy is being required following a disciplinary proceeding,
2. give the licensing authority's mailing address to the insurer, and
3. direct the insurer to include the licensing authority as a recipient of any notice being sent under the insurance law.
If the insurer notifies the licensee that it intends to terminate the coverage after the end of any notice period, the law requires the licensee to provide proof of reinstatement or of new insurance before the end of the notice period. If the licensee fails to do so, the licensing authority must either, in its discretion, (1) suspend the liquor license until the proof is provided or (2) revoke the license (Mass. Gen Laws Ch. 138 § 64B).
The New Hampshire Dram Shop Act makes a liquor licensee and his employee liable if he negligently or recklessly serves a minor or an intoxicated person if he knows, or a reasonably prudent person in like circumstances would know, that the person being served is a minor or intoxicated. The act makes proof of service without requesting proof of age admissible as evidence of negligence.
The act allows a person who becomes intoxicated to sue the seller for serving him only if the server is reckless. Service is reckless if the seller intentionally serves knowing that serving the drinker creates an unreasonable risk of physical harm to him or to others that is substantially greater than that which is necessary to make his conduct negligent. The following practices are among those that are admissible as evidence of reckless conduct: (1) active encouragement of an intoxicated person to consume substantial amounts, (2) service to someone 16 or younger, (3) service to someone that is so continuous and excessive that it creates a substantial risk of death by alcohol poisoning, and (4) the active assistance into a motor vehicle when the patron is so intoxicated that assistance is required.
The law provides that service is not negligent or reckless if the server is following responsible business practices. These include, among other specified activities: (1) encouraging patrons not to become intoxicated, (2) promoting the availability of nonalcoholic beverages and food, (3) promoting safe transportation, and (4) prohibiting employees from drinking alcoholic beverages while working.
The law immunizes sellers from civil damages resulting from refusing to sell alcoholic beverages (1) to someone who failed to show proof of age or appeared to be a minor to a reasonable person or (2) in good faith to prevent intoxication (N.H. Rev. Stat. Ann. §§ 507-F:1 to 507-F:8).
Rhode Island law provides that liquor licenses do not authorize the sale or delivery of alcoholic beverages to (1) a minor, (2) an intoxicated person, or (3) a person of notoriously intemperate habits (R.I. Gen. Laws § 3-8-1). The Rhode Island Liquor Liability Act establishes the legal basis for obtaining compensation for accidents related to intoxication (R.I. Gen. Laws §§ 3-14-1 & 3-14-14). It allows anyone who suffers damage to sue a liquor license holder and employee for negligently or recklessly serving alcoholic beverages.
A defendant who negligently serves a minor is liable for damages proximately caused by the minor's consumption. Proof that a minor was served without being asked for proof of age is a rebuttable presumption of negligence. A defendant who serves an intoxicated individual is negligent if he knows, or if a reasonable and prudent person in similar circumstances would know, that the individual being served is a minor or intoxicated.
A defendant serves recklessly if he intentionally serves a visibly intoxicated individual or minor and he consciously disregards an obvious and substantial risk that serving the individual will cause physical harm to the drinker or to others. The disregard of risk must involve a gross deviation from the standard of conduct that a reasonable and prudent individual would follow in the same situation.
Serving practices are admissible as evidence of reckless conduct, including: actively encouraging intoxicated individuals to consume substantial amounts of liquor, serving a minor when the server has actual and constructive knowledge of the drinker's age, and serving someone so continuously and excessively that it creates a substantial risk of death by alcohol poisoning. It allows proof of responsible serving practices to be admitted as evidence. These include: attendance at a server training course and implementation of responsible management policies, procedures, and actions.
The law allows punitive damages to be awarded based on reckless conduct. It requires suits to be brought within three years.
The law immunizes sellers for their good faith refusal to sell to someone who (1) does not show proper proof of age, (2) reasonably appears to be a minor, or (3) is refused service in attempt to prevent him from becoming visibly intoxicated.
The law requires the insurance commissioner to collect and keep records on (1) the names and number of companies providing liquor liability insurance, (2) the number and dollar amount of premiums for the insurance, and (3) the number and dollar amount of claims paid. The law specifically requires the commissioner to make the collected information available to the legislature.
Vermont makes someone liable to another who has been injured by an intoxicated person or in consequence of the person's intoxication, if he has caused another to become intoxicated by selling or giving alcoholic beverages to (1) a minor, (2) an apparently intoxicated person, (3) a person after legal serving hours, or (4) a person whom it would be reasonable to expect would be under the influence as a result of the amount served. If the alcoholic beverage was sold or given in a rented building, the law also makes the building's owner liable under the same conditions. The law establishes an affirmative defense for the landlord that he took reasonable steps to prevent such sales or deliveries. Suits must be brought within two years.
The law allows evidence of responsible actions, taken and not taken, to be admitted. These may include: instructing servers about liquor laws, intervention techniques, admonishing patrons about consumption, and inquiring patrons about their age or degree of intoxication.
The act provides that it does not create a statutory right to sue a social host for giving liquor to anyone, but this does not limit or affect a host's liability for negligence. But a social host is liable under the Dram Shop Act if he knowingly gave liquor to a minor or if a reasonable person under the same circumstances would have known that the person was a minor.
If a judgment against a liquor license holder remains unpaid for 30 days, the state must revoke his license. Further, a new license must not be given to anyone who has not paid a dram shop judgment (Vt. Stat. Ann. T. 7 §§ 501 to 504).
OTHER STATES WITH LAWS ON DRAM SHOP INSURANCE
Illinois has a requirement that applies only to holders of a special event retailer's license. This license is comparable to Connecticut's temporary permit for outings, picnics, or social gatherings. The licenses may be obtained only by non-profit organizations and last only for the length of a special event. The Illinois law requires applicants for the license to submit proof of dram shop liability insurance (235 ILCS 5/1 (e)).
Michigan requires applicants for a new or renewed liquor license (other than temporary licenses) to file proof of financial responsibility to provide security for liability of at least $50,000. The proof may be cash, unencumbered securities, liquor liability insurance, a constant value bond executed by a surety company authorized to do business in Michigan, or membership in a group self-insurance pool legally authorized to provide security for dram shop liability.
The law allows the liquor control commission to waive the requirement if the insurance commissioner certifies that liquor liability insurance is not reasonably available or not available at a reasonable premium.
The law states that (1) providers of liquor liability insurance or surety companies must not be named as defendants in suits brought against an insured or bonded licensee, (2) the insured's bankruptcy does not discharge an insurer or surety company from liability, and (3) insurance policies and bonds issued for this purpose must continue from one year to the next unless canceled.
The law prohibits a licensee from cancelling his liquor liability insurance without giving the liquor commission 30 days written notice unless the licensee provides replacement proof of financial responsibility. The law requires the commission to revoke the license of a licensee who fails to comply with this requirement (Mich. Stat. § 431.1803).