The Basics of an Auto Injury Claim in Virginia - A Primer

Author: Attorney R. Clayton Allen, Esquire

I am always surprised at the misunderstandings and misconceptions people have about their rights when they have been injured in a motor vehicle accident in Virginia. This article is a summary of an explanation I give to each of my clients at the beginning of representing them. After I give this general explanation, of course I explain how and what parts of this summary apply to their particular case, what additional investigation we will do, how we can best prepare their case for submittal to the insurance company, and what they can do to help get the best outcome in their case. However, this summary will give general outline of what the legal rights are and how the insurance company is involved.

When you are injured and claim that someone else is responsible for causing your injuries, and you want them to compensate you in money for the injuries and losses they have caused, your only legal right is to sue them, go to trial, and have a jury decide your case. (1) At trial, the judge will tell the jury that they have basically three issues to decide. First, the jury must decide if you have proven that the person you've sued (the defendant) is legally at fault in causing your collision. "Legally at fault" has two parts: you must prove they did something wrong legally, and you must prove that was a cause of the collision or accident. They may have violated a statute (such as speeding, failing to stop and yield right of way at a stop sign, etc.) or they may have just generally failed to use proper care (such as failing to keep a proper lookout and see vehicles or pedestrians around them that may be affected by their actions). What the judge actually tells the jury is that they must decide if the other driver (the defendant) is "negligent". (2) The judge further defines negligence as "the failure to use the ordinary care that a reasonable person would under the circumstances."

After the jury decides this issue, and assuming they find that you have proven the person you've sued (the defendant) is at fault legally, then the second question the jury has to decide is if you are at fault at all, too. Even if the other person is 99% at fault in causing the accident, if you as the injured person are even 1% at fault in a way that significantly contributes to cause the accident, then you lose. You don't get a dime. This is a very harsh rule of law, and Virginia is one of only a very few states that still have this law of "contributory negligence". (3) As a result, you can be sure that the person you've sued and their attorney will be looking for any way to prove that you might have been at fault too, because then they don't owe you anything.

Assuming the jury finds that you have proved the other driver you've sued is at fault, and successfully defended yourself against any claim that you might have been at fault too, then you are entitled to a verdict in your favor. The third question is: what are the injuries and losses that you have proved, that you are allowed to recover for, and what is a fair amount of money for you to receive in one lump sum as a verdict for those injuries and losses? (The injuries and losses are called the "damages"). The reason that I say "that you are allowed to recover for" is because the law limits the losses you can claim to certain things. For instance, if you are out of work due to your injuries and have to get a loan, the law says you can recover for the lost earnings but you cannot recover for the interest or fees on the loan you got.

Generally, the damages you can recover for in an accident fall into three groups. First, you can collect for medical expenses that are reasonable and necessary for treatment of injuries sustained in the accident. Second, you can collect for the value of time you actually missed from work at the rate you are normally paid, if the time you missed from work was due to your injuries (which usually means you were out on a doctor's advice). Now the medical bills and the lost earnings are specific amounts, and by the time of trial you would present to the jury a specific number for each of these two.

The third group of damages is the intangible losses; it's what people generally refer to as "pain and suffering", but actually includes a lot more than that. A jury should consider awarding you some amount for any bodily injuries you suffered and the effect on your health, depending on the degree or severity of injury and how long it lasted. The jury should also consider any physical pain and mental or emotional suffering that was caused by the accident, as well as any inconvenience you have been caused by the accident and your injuries. IF you have a permanent injury then the jury should also consider any future effects of the injury on your health, any future pain and mental or emotional suffering, and any future inconvenience.

Now, this is your only legal right. When someone has auto insurance, that's a contract or agreement with their insurance company that if they are involved in an accident and someone sues them claiming they are at fault, and takes them to trial and get a verdict, then the insurance company will pay the verdict up to the amount of the limits on the policy they bought. The contract also says that the insurance company will provide them with an attorney free of charge to defend them if they are sued, but the insurance company gets to pick the attorney. (4) Basically, that's all the insurance company is required to do; to provide an attorney for the person who is sued, and to pay any verdict up to the policy limits. And sometimes an insurance company will deny a claim, and then your only alternative is to sue the person they insure and try to get a verdict at trial.

More often, the insurance company is interested in discussing settlement. But it's important to understand that the only reason the insurance company is interested in discussing settlement is to save them some money. To them, it's pure business. Your case is not about what you've suffered and what you've been through, or what's the right thing to do; to them, it's about how much it's going to cost them. Another way to describe it is that he insurance adjuster's job is to have your case cost the insurance company as little as possible, and that means for you to get a little as possible. If they could find a way, the insurance company would like to keep all their money and give you nothing. (As your attorney, I'd like to get you as much as possible). But ultimately it doesn't matter what he insurance company would like to pay or what you would like to get; the bottom line is that if the insurance company won't offer an amount that you are willing to accept, the only alternative is to sue the person they insure and go to trial, and try to get a verdict from the jury.

Clients often ask what their case is worth. The simple answer is whatever a jury awards to you at court, or whatever you can get the insurance company to offer; whichever one is higher. Of course, determining what a jury is likely to award in your case is a lot of the skill your attorney provides. Nobody can predict exactly what a particular jury is going to award you on the day you go to trial. The best any attorney can do is to give you a range of what he expects the likely verdict will be, and where in that range the most likely average is. Based on their skills, abilities, knowledge and experience, and their familiarity with jury verdicts in the jurisdiction where your case would be tried, a very good attorney should able to give you a reasonably accurate estimate.

So - how does all this apply to your particular case? Well, that's what an attorney who is familiar with the facts of your case, has done their investigation, and is familiar with the medical and other damages aspects of your case, can tell you.

About the Author: Clayton Allen is a Richmond car accident attorney and the editor of the Allen & Allen Law Blog. Practicing for over 20 years, he is a seasoned litigator who has successfully handled all types of personal injury cases.


(1) If your injuries and losses are serious enough that your case is (or might be) worth more than $15,000, you must file your lawsuit in the Circuit Court. In that court, if either side requests trial by a jury instead of a judge, then the trial is by jury. The few times in my legal career that I have not asked for a jury in this court, the defense has, so we ended up with a jury anyway.

(2) How do I know this? There are form instructions that the judge reads to the jury at the end of the trial that tells them what the law is. In fact, the attorneys in the case are responsible for drafting the instructions of law that the judge will read. If the attorneys have a disagreement, then the judge decides which instructions he will give (or how exactly they will be worded).

(3) Most states have "comparative negligence" where the negligence of each party is compared. Although it works slightly differently in different states, generally it works like this. If a jury found that the defendant is 70% at fault and the injured person was 30% at fault, and the injuries and losses were worth $10,000, then the injured person would receive 70% of the damages, that is, $7,000. In Virginia, the injured person would get nothing.

(4) This is required to be included in the insurance contract under Virginia law, but is also because if the insurance company is going to have to pay any verdict, then they want to be sure the person has a competent attorney.

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