Sommers

Peter and Joan Erb appeal a judgment awarding Jack A. Sommers attorney fees pursuant to Code of Civil Procedure section 1021.4. The judgment stemmed from a drunk driving truck-motorcycle collision. The Erbs contend (1) Sommers was not entitled to attorney fees under the statute because he, as well as Peter Erb, was driving while intoxicated when the collision occurred and (2) the amount of the award was excessive and an abuse of the trial court’s discretion.

Facts

On November 24, 1987, Sommers was injured when his motorcycle collided with a pickup truck driven by Peter Erb on Balboa Avenue in San Diego. The collision occurred when Erb pulled out of a driveway and attempted to make a left-hand turn heading west onto Balboa. Sommers’s motorcycle, traveling eastbound on Balboa, struck the truck and Sommers was thrown off the motorcycle. The investigating police officer concluded Erb had violated Sommers’s right-of-way and this was the cause of the collision. The police report characterized Sommers as “obviously drunk” and Erb as having his “ability impaired.” Erb was charged with violating Vehicle Code section 23153 (causing bodily injury while driving under the influence)…