Paul D. Hux, Petersburg personal injury attorney

Author: Paul D. Hux, Petersburg Personal Injury Lawyer

What parents can do to help new drivers once they get their license?

As a Virgina personal injury attorney that has seen many terrible car accidents – and as the father of twin boys that recently received their licenses – I cannot help but be worried every time they get behind the wheel of a car.  I know they have both taken the driver’s education class in school, gone through “behind the wheel” training, completed the required amounts of driving during the day, at night, on the highway, and on back roads, but I know this is just the tip of the iceberg when it comes to the things they really need – continued education and experience.

As parents we must continue to do everything in our power to impress upon teen drivers that they are now participating in something that could have grave effects on themselves or others for the rest of their lives.  Your teen still believes they are “bullet proof” and does not truly understand the risks associated with driving.  They do not believe their decisions while on the road actually could bring about bad consequences.

So – what can we do ?

1. Lead By Example

We need to drive so that our teens can “model” our behavior.  That means to make sure we watch our speed; wear our seat belts; do not text or use our phones in an unsafe manner; keep safe following distances; obey traffic laws; don’t drink and drive; and don’t get upset due to other drivers or traffic conditions.

This may be the hardest thing for us parents to do because we are set in our ways – right or wrong.  But we must understand that we are teaching our kids that behavior  is “ok”  - when we know it really isn’t.

2. Continue To Educate

Every time you ride or drive with your teen, talk about what they are doing and why they are doing it.  Inquire into many areas of the trip: Which lane is the best for their purpose?  What are they looking for up the road that could be a potential hazard?  What kinds of things have they noticed other drivers do that have been dangerous?   Based on the current weather, should they be altering their driving behavior? In what way? Why?   I have found that if you are able to talk about anticipating things “coming up” as they travel, then teenage drivers are more prepared when they occur.   This method of teaching is a lot more positive and works a lot better than waiting until your teenage driver doesn’t react as you think they should, and then trying to direct or teach during the middle of the chaos.  Often the urgency of the situation at that point may cause you to raise your voice in a way that’s likely to just fluster and distract your teenage driver, instead of being the helpful learning experience that you really want.

3. Set Expectations Before Your Teenager Starts To Drive

Decide on what your “ground rules” are that you expect your teen driver to follow, and discuss these ground rules in advance.  Explain to your teenager that these rules must be followed if your teen plans on using your car.  Consider rules like: they must let you know where they are going; call you upon arrival and departure from any location; confirm passengers (if any – it is recommended they have as few as possible)[1]; no using a phone for any reason while driving (if you MUST, then you MUST pull off of the road)[2]; follow the traffic and speed limit signs; absolutely no alcohol use when driving; keep distractions from passengers and/or music at a minimum; and no aggressive or thrill-seeking behavior when behind the wheel.

AAA offers a website that provides wonderful information for all new drivers and their parents.  It includes a “Parent-Teen Driving Agreement” http://teendriving.aaa.com/VA/.  This is an agreement your teen will read and understand and sign BEFORE they drive.  They will also understand that the more tasks properly performed means more privileges, but the more rules that are not followed or are violated the more consequences they can expect.  Driving for most teens is a luxury and not a necessity, so if they cannot follow your rules, then this privilege must be taken away.

Parents must continue to be involved for the sake of the teen and the public.  We must do all we can to keep both safe.  Driving is something no one should ever be too relaxed about as bad things can happen in the blink of an eye.  Your teen should know you stayed involved in their driving because you care and because of how dangerous it is. You should emphasize that as maturity creates greater opportunities, those greater opportunities also carry greater responsibilities and greater risk of harm to themselves and others.  In driving as in everything else, actions have consequences; in driving, the consequences can be catastrophic and life-changing.

Richmond Car Accident Lawyer

Author: Christopher A. Meyer, Richmond Personal Injury Lawyer

Many people in the Commonwealth of Virginia are required by court order to financially support children and have been unable to keep up with the court ordered payments.  In such cases, the Commissioner of the State Department of Social Services may cause an order to issue that attaches to property and income owed to the debtor by a third person and requires that such property or income be turned over to the Commonwealth in satisfaction of the past due child support.  There is a specific statute, Section 63.2-1929[1], which discusses this issue in relationship to personal injury cases in Virginia.    The operative sentence is as follows:

The orders to withhold and to deliver shall take priority over all other debts and creditors under state law of such debtor including the proceeds or anticipated proceeds of a personal injury or wrongful death award or settlement except that the Department’s lien shall be inferior to those liens created under Section 8.01-66.2 or Section 8.01-66.9, any statutory right of subrogation accruing to a health insurance provider, and the lien of the attorney representing the injured person in the personal injury or wrongful death action. (Emphasis added).

The two statutory sections cited are laws giving doctors and other medical providers a lien for a least part of their charges, up to $750 for most doctors, $200 for an ambulance, and $2,500 for a hospital, and also give the Commonwealth liens for its services such as Medicaid and services provided by Commonwealth operated hospitals like the hospital at the University of Virginia.  What this means in a typical personal injury case is that the lawyer gets the fee he has earned, the doctors get a lien for the minimum amounts as noted above, and the child support lien gets the rest until the whole lien is satisfied.  In many cases this means that a person in a personal injury case will receive no funds at all from the settlement proceeds with the entire net proceeds going to the back child support lien.  The Commonwealth can negotiate these liens but often takes a very hard line.

Therefore,  if an injured person with a claim owes back child support, the Commissioner may notify the person’s attorney or the insurance company paying the proceeds that there is a back child support.  If that happens,  then that back child support may have to be paid first, in its entirety, before the injured person gets anything.

If you are injured, and have a claim, and also owe back child support, then be sure you notify your attorney.

Richmond Personal Injury Attorney Priscilla Woody

Author: Priscilla R. Woody, Richmond Injury Lawyer

While a trial (by jury or bench trial by judge only) is our clients’ only legal right to achieve a recovery, some cases are resolved through alternative means other than a trial to resolve a personal injury case.  Arbitration is one type of alternative dispute resolution.  Arbitration is an alternative means to resolving a dispute using an impartial person (an “arbitrator”) who otherwise has no interest or involvement in the case.  The arbitrator acts as King Solomon and decides who wins and who loses.   In a personal injury case, the arbitrator also decides the amount of the award (that is, what amount the insurance company must pay the injured person).

Arbitration is not appropriate for every case.  The decision whether to arbitrate or not is a complicated one that should be made by you and your attorney.[1] Even the process of agreeing to arbitrate requires a number of steps and a number of decisions.  Often the process of agreeing to an arbitration and the parameters of the arbitration is a lengthy negotiation in itself.  There are a lot of considerations involved, and often an arbitration does not go forward because the parties cannot agree on the structure of the arbitration.  The basic decisions are as follows:

• First, all the parties must agree to arbitrate.
• Second, the parties must agree upon who will serve as the neutral arbitrator.  An experienced attorney or retired judge is usually the arbitrator.
• Third, the parties must agree on who will pay the arbitrator’s fees. Usually the fees are split equally between all the parties.
• Fourth, the parties must agree in advance if the arbitrator’s decision will be binding or non-binding.  If the parties agree that the arbitrator’s decision is binding, then the arbitrator’s decision is final.  The parties agree that there will be no appeal and no chance to change the arbitrator’s decision, and that all parties will be bound by the arbitrator’s decision.   In a non-binding arbitration, the arbitrator can recommend but cannot impose a decision on either party. A non-binding arbitration can still be beneficial because it can give the parties a glimpse into the adversarial proceeding and facilitate a settlement sooner rather than later.  So a non-binding decision sometimes leads to an agreed settlement later.  If a non-binding arbitration fails to resolve our client’s case, then we are always prepared to go forward with trial to secure the compensation to which our client is entitled.
• Fifth, the parties may decide to arbitrate only certain issues of the case. For example, the parties may agree to the value of a case but disagree as to who is liable or at fault.  So the parties may arbitrate only the liability issue of the case.  Or the parties may agree that one party is responsible for whatever damages the other party suffered, but disagree as to the dollar amount of those damages.  So the parties may agree to have the arbitrator decide only the amount of the damages, and assume liability.
• Sixth, sometimes the parties limit the arbitrator’s decision by agreeing to a “hi-lo” limitation on the arbitrator’s award.  Basically, the parties agree in advance on a maximum and minimum award, but the arbitrator is not told of this limitation. For example, the parties may agree that the maximum award is limited to $50,000, and the minimum award is limited to $20,000.  Then if the arbitrator’s decision is $65,000 to the plaintiff, the plaintiff would only receive $50,000.  If the arbitrator’s decision is $12,000 to the plaintiff, however, the plaintiff would actually receive $20,000.
• Seventh, the parties must agree in advance on how evidence will be presented to the arbitrator.  Sometimes the evidence is presented to the arbitrator “on paper’, that is, by submitting documents only.  Other times the evidence may include live testimony by witnesses to the arbitrator.  Sometimes there is a combination.  If the arbitration evidence is submitted “on paper”, sometimes the parties agree that the plaintiff will submit first, then the defendants will submit a few days after that, and then the plaintiff will have the opportunity to submit “rebuttal” materials a few days after that. Other times all parties submit their documents at the same time. Regardless of the schedule on which the materials are submitted, normally each side sends a copy of their submission to all other parties.
• Eighth, the parties must agree on what rules of evidence apply. For example, for medical evidence, can just medical records be submitted to the arbitrator or, as at trial, does the medical evidence have to be presented either by a deposition (recorded testimony under oath) or by the doctor testifying live in person under oath? Sometimes records are submitted with an affidavit signed under oath that confirms the matters stated in the document are accurate.
• Ninth, if the arbitration is not done “on paper”, then the parties must agree on who can be present at the arbitration.  Sometimes the plaintiff wants to have a family member present for “morale support”.  If there is an insurance company that will pay any arbitration award made against the defendant, then the insurance company may want to have a representative attend the arbitration.
• Tenth, the parties must agree on any other conditions that should apply to the arbitration.  For instance, the parties may agree that the arbitrator should not take into account the “venue” where the case would be tried, if it went to court.  Or the parties may agree that each side is limited to a certain amount of time to present their case to the arbitrator, such has 30 minutes or an hour. There are a wide variety of restrictions or conditions that the parties may agree to that would apply to the arbitration.

The arbitrator’s role is similar to a judge’s role.  The arbitrator hears or reviews the evidence, decides whether the plaintiff is entitled to recover and, if so, how much the plaintiff will recover. The process is similar to a trial but less formal.  If the arbitration is done in person (and not “on paper”), then normally the plaintiff’s attorney and the defense attorney will each make a brief opening statement, and then call witnesses live or by video to testify, and will submit documents.  Then each attorney will make a “closing argument.”  During the arbitration, the arbitrator may also ask the parties and witnesses questions.  After the closing arguments, the arbitrator usually will tell the parties when to expect to make his final decision.  It could take a couple of weeks more or less.  Most of the time the arbitrator puts his decision in writing and sends it to the parties or their attorneys; often the arbitrator will review the reasons for his decision.

Arbitration is usually faster and less expensive than trial.  Arbitration is a;most always quicker than a trial date; trial dates in Virginia are often set a year to a year and a half from when a lawsuit is filed.  You may still incur the same amount of litigation expenses if the parties don’t agree to arbitration until after the discovery process (answering interrogatories, depositions and expert designation) is complete.  Those litigation expenses would occur in preparation for trial. The actual trial would probably cost more than arbitration.  In arbitration you don’t have to spend money on jury research, paying your doctors and other expert witnesses to attend trial, and subpoenaing other witnesses to trial. The timing of the decision to arbitrate dictates the litigation cost savings.  The arbitrator’s fee will inevitably be less than litigating the case to trial.

Another type of alternative dispute resolution is mediation.[2] Arbitration is different from a mediation.  In mediation, the parties decide whether to settle their case with the help of a mediator.  The mediator helps to facilitate the settlement negotiations but, unlike an arbitrator, does not make a final decision.

Your personal injury lawyer will be familiar with litigation and trial as well as the various methods of alternative dispute resolution.  An experienced attorney will evaluate the pros and cons of the various methods, and will advise when and if a method of alternative dispute resolution is appropriate for your case.  The injury lawyers at Allen and Allen routinely use litigation, trial, arbitration, and mediation to resolve cases, and will advise you of your options.   As always, if you have any questions, just ask.  We are here to help.

Richmond Injury Lawyer Scott D. Fitzgerald

Author: Scott D. Fitzgerald, Richmond Personal Injury Lawyer

Yes.  Regardless of fault, it is important to call your insurance company and report any accident that involved injuries or property damage.

A common myth is that you do not need to contact your insurance company if you were not at fault.  This is false, because there are several coverages on your insurance policy that you may want to use.  In order to use any of these, you are required to notify your insurance company.  The first coverage is our collision coverage.[1] If the at-fault driver’s insurance company is slow to accept responsibility for the accident, then you may want to get your car repaired or replaced under the collision coverage of your own insurance policy.  Then your insurance company will seek reimbursement from the  at-fault party’s insurance.  To use this coverage, you must promptly notify your insurance company of the accident.  Otherwise, you might have to pay for repairs out of your own pocket, and then negotiate your property damage settlement with the at-fault driver’s liability carrier, which could take months. In addition, while you are waiting for the liability carrier to accept responsibility, you may have storage charges accruing while your car is sitting wherever it got towed.[2]

The second coverage you may want to use is towing insurance.  Again, this will pay the cost of your vehicle being towed, and then your insurance company will seek to be paid back by the other person’s insurance.  Otherwise, you may have to pay the towing charge while you wait for the other person’s insurance to accept responsibility.  Under both collision coverage and towing insurance, if your company is able to recover the money they paid from the at-fault driver’s company, then neither of these claims will affect your insurance rates.

Third, you may want to use any medical payments or medical expense coverage you may have on your policy.[3] This coverage will pay any medical expenses you have as a result of the accident, regardless of who is at fault and regardless of any other insurance.  Under Virginia law, if you make a claim for this coverage, the insurance company cannot raise your rates.

Fourth, and perhaps most importantly, the other driver may claim that you are at fault and pursue a claim against you.  Even if you know you are not at fault, you do not want to have to pay the cost of defending yourself.  Under the terms of your insurance policy, your insurance company is required to provide a defense to you – free of charge – if a claim is brought against you.

To have the benefit of any of these coverages on your policy, you are required to report the accident to your insurance company.  You must do this within a reasonable amount of time.  If you do not, your insurance company is permitted to deny coverage.  Do not fall into the trap of believing that notification is not necessary because the at-fault party should pay your claim.

There is a type of insurance coverage available to you through your own insurance carrier that does not require you to notify your insurance company of an accident within a reasonable amount of time.[4] This type of insurance coverage is called Uninsured and  Underinsured Motorist (“UM/UIM”) coverage.  If the at-fault driver in your accident either does not have insurance or does not have enough insurance to cover your loss, then this type of coverage may provide a source of payment.

However, although you should promptly notify your carrier of the accident, you should be careful what you say when you call.  Tell them that you were involved in an accident and give them general background information, including the date, time, location of the accident, and names and addresses of all parties involved.  But it is best not to discuss the issue of fault until you have consulted with an attorney.  Politely decline to give a recorded statement until you feel better.

In sum, it is important to report any accident to your insurance company promptly in order to avoid giving your insurance company a basis for denying coverage that may otherwise be available to you, but it is equally important not to discuss the issue of fault with anyone until after you have sought the advice of an attorney.

About Scott D. Fitzgerald: Scott Fitzgerald is the great grandson of the Firm’s founder, George E. Allen, Sr., and is the fourth generation of the Allen family to join the Allen Law Firm. He is a Richmond personal injury lawyer focusing his practice on car accident cases in the Richmond, VA area.  Scott is dedicated to protecting the best interests of his clients and defending their rights against insurance companies.

Richmond personal injury attorney Courtney Van Winkle

I will never forget driving down 64 West after a wonderful weekend at Virginia Beach with my family when suddenly my Ford Explorer became impossible to control. With much difficulty and a racing heart I was able to steer my vehicle off the highway. I did not have a cell phone with me as that was back in the days when I fought the idea of being that connected to the world, especially while on vacation.  My mind changed on that scary day. Cars whizzed by while I stood on the side of the road with 2 small children, a baby, and a shredded tire. I vowed never to be in that position again. Now I am armed with a smart phone and older kids that have their own phones with them but is that always enough to ensure our safety? Is a cell phone all we need in the car these days: a connection to the outside world?

Whether you are heading out on a long distance road trip to visit family over the holidays or just traveling around town, it is a good idea to carry an emergency roadside kit in your vehicle. We all know this is a smart thing to do, but do you actually have an emergency kit in your car? If you become stranded in a snowstorm or your automobile breaks down in a remote area, you will be relieved that you took the time to be prepared. Why compromise your safety?

It’s hard to imagine being stranded in your car in this day and time, but it does happen. Even if you have roadside assistance coverage it is of no use without a working phone or cell service. An unexpected automobile accident may damage your vehicle leaving you unable to drive.  A car wreck could also damage your phone or make you unable to retrieve it. Injuries could affect your ability to seek the help you need. Winter snowstorms may blow in and strand you on the highway as you are trying to get home.

You should always have some essential safety items packed in your car just in case. How do you know what you should include in your emergency car kit?  Start with the basics – food, water, and a blanket and then add other items that you might need, such as an emergency light, first aid items, and other accessories. Try to have enough supplies to accommodate all the members of your family or those traveling with you.  Also, if you have an infant or young child, you will want to make sure you have extra diapers, formula or any other supplies you might need to care for your child.

You can buy a pre-packed car emergency kit from many places, but you may want to add a few extra items of your own to customize your emergency kit. Here is a list of suggested items:

EMERGENCY CAR KIT[1]

• First aid kit
• Flashlight
• Emergency candles and water-proof matches
• Food – energy bars or any food/snack that will not spoil
• Water – in plastic bottles (replace every 4 – 6 months)
• Prescription medicines
• Blanket
• Whistle – in case you need to attract attention
• Road maps
• Tow rope
• Seat belt cutter
• Jumper cables
• Fire extinguisher
• Road flares
• Light sticks
• Small shovel and ice scraper
• Pocket knife or multi-purpose tool
• Gloves
• Rain poncho
• Duct tape

Keep everything together in a duffel bag or backpack so it fits easily under a seat or in your trunk. This may seem like a lot of items, but the more prepared you are, the better you will be able to handle whatever arises.

Not only will I never forget how frightened I felt that night on the side of 64, I will never forget the elderly gentleman in the baseball cap who pulled over to help. He also did not have a cell phone but he took my AAA card and went to a pay phone and called them. He then came back and waited with me and helped with the kids until help arrived.  At least now I could offer him a bottle of water and a Zone Bar while we wait (after putting out the proper flares of course!)

Fredericksburg Claims Consultant Chris Cloude

In the next couple of months we will have overnight freezing temperatures, sleet, freezing rain and maybe even some snow.  To make sure we arrive safely at our destination, we must alter our driving for these conditions.  Below are some driving tips for the winter season.

TEN TIPS FOR SAFE WINTER DRIVING:

1.  STAY HOME:

Don’t drive if you don’t have to – the safest place for us to be during a snowstorm or ice storm is at home.  During inclement weather, don’t take to the roads unless it is absolutely necessary.

2.  PREPARE:

Make sure your car is ready for the winter.  Clear all of the snow and/or ice from your windows so there is none obstructing your vision.  Make sure your tires are in good condition.  Make sure your engine fluids and gas tank are full.

3.  SLOW FOR CAUTION:

Drive more slowly.  Posted speed limits are for ideal weather conditions.  Reduce your driving speed for the conditions.  Your vehicle will not stop quickly when the roads are covered with snow or ice.

4.  GET BACK:

Allow greater following distances during winter weather conditions.  Your vehicle will require more distance to stop so you should allow more distance between vehicles.

5.  SEE AND BE SEEN:

Turn on your lights.  Driving with your lights on increases your ability to see and increases your visibility to other motorists.

6.  USE YOUR BRAKES CORRECTLY:

If your vehicle was made after 1994, very likely  it is equipped with anti-lock brakes or ABS.  It is important that you check your vehicle to see if you have ABS.  If so, DO NOT pump your brakes as it could cause you to loose control.  If you do not have ABS you should pump the brakes to prevent the brakes from locking completely.

7.  STAY IN CONTROL:

If you have a rear wheel drive vehicle, to control a skid, you need take your foot off the accelerator pedal and counter steer until your vehicle is heading in the correct direction.  If you have a front wheel drive vehicle, to control a skid, you also need to remove your foot from the accelerator pedal until you feel the tires regain traction.  As traction returns, slowly turn the front wheels in the direction you want to go.

8.  A WET ROAD MAY MEAN ICE:

Be aware of black ice.  When moisture freezes on a roadway, it may just appear wet.  As a result, black ice is often not visible.  However, by paying attention to your surroundings you can predict were black ice may form.  Black ice will form on roads around lakes, rivers, tunnels, overpasses, and rural roads that may not be exposed to direct sunlight.  If you suspect you may be entering an area of the roadway that may be covered with black ice, slow your vehicle down and be prepared to control your skid.

9.  WEATHER CHANGES EVERYTHING:

Be aware that everything you do in your car will be affected by the conditions.  The most important thing to remember is to slow down.  Turn slowly, move slowly and brake slowly.

10.  EXPECT THE UNEXPECTED:

Carry an emergency kit in your car.  If the worst happens and you are stranded, you need to make sure you have the necessary items in your car.  For example, you should carry a First Aid kit, blankets, shovel, bag of sand, flashlight with extra batteries, extra warm clothing, and a cell phone or CB radio.

If you follow these tips, you should have a safe and enjoyable winter driving season.  And don’t forget – watch out for other drivers who may not be as conscientious or prepared as you are.

About the Author: Chris Cloude is a claims consultant with the Fredericksburg injury lawyers of Allen & Allen. Chris works with Fredericksburg car accident lawyer Edward Allen to assist clients with their car accident injury claims in Stafford, Garrisonville, Fredericksburg and the surrounding areas.

Mechanicsville Car Accident Lawyer

Author: Attorney Christopher A. Meyer

Taking bankruptcy can have a significant effect on a personal injury case.  In a recent personal injury case[1], the Virginia Supreme Court discussed the disastrous results that can occur when a plaintiff’s taking bankruptcy and the pendency of a personal injury case are not properly coordinated.

In Kocher the plaintiff was injured in an car accident.  Over a year later, he filed for bankruptcy and received a discharge several months following his filing. His personal injury lawyer filed suit several months after that, complying with Virginia law[2] that requires attorneys to file suit (in most cases) within two years of the date of the injury. Failure to abide by this rule permanently bars cases from being filed.

Though the attorney’s filing occurred several months in advance of the legal deadline[3], it was not served and the issue properly joined until several years later.  Though often a non-issue, in Kocher the lawyers for the defendant argued that the plaintiff and his attorney did not have standing (the legal right to initiate a lawsuit)[4] to file suit. Therefore, the suit they had filed to stop the statute of limitations from running was a nullity[5] (of no legal force and effect) and the plaintiff’s suit should be dismissed. The Virginia Supreme Court agreed.

The Supreme Court held that when a person files bankruptcy, by federal law all of his assets become part of the bankrupt’s estate and are therefore controlled by the trustee (court appointed administrator of the bankrupt person’s affairs)[6] in the bankruptcy.  The plaintiff’s assets include personal injury cases, regardless of whether they have been filed or listed in the bankruptcy filing.

Once the plaintiff has filed for bankruptcy, the trustee has possession of his assets and neither the plaintiff or his attorney have the right to file suit on his personal injury case.  This rule meant neither the plaintiff or his lawyer in Kocher had standing to file suit, causing the permanent dismissal of the case.

There are several ways to handle this problem.  Once a case has been filed in bankruptcy the trustee can be asked to abandon the personal injury claim, which allows the plaintiff to file suit.  Better, once the personal injury claim has been listed as an asset the trustee can be asked to exempt the claim.  This exemption also frees the plaintiff to file suit on his case.  Lastly, If the personal injury claim is listed as an asset and not dealt with by the trustee, it can be presumed abandoned when the plaintiff receives a discharge, or order forgiving the bankrupt person’s remaining debts,[7] in bankruptcy.

If none of these actions are taken then the trustee keeps the case and the rights to file suit even after a discharge has been granted.  In that case, any suit filed by the plaintiff or his attorney will not be effective.

The point: any time that a person who has a personal injury action wants to declare bankruptcy there must be close cooperation between the attorney handling the case in bankruptcy and the attorney for the personal injury action.  A failure to follow the proper steps may result, as Kocher demonstrates, in the case being lost forever.

About the Author: Chris Meyer is a car accident lawyer in Mechanicsville Virginia with personal injury law firm of Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.

Fredericksburg Claims Consultant Chris Cloude

Author: Claims Consultant Chris B. Cloude

This is a question I get from just about every client I assist at some point during their personal injury case.   Until a case is ripe for settlement, this question is impossible to answer.  To understand why this is true, it’s helpful to understand the general process we go through to determine the value of a case.

Although we are roughly tracking the value of a case throughout a client’s medical treatment, this is usually a very rough estimate until the client has been discharged from their care by a doctor. [1] After a client has been released by their doctor, we obtain the final office note and bill from the doctor.  Then I review the entire file with the attorney who is working on the case with me.  We consider many factors concerning the liability and damages aspects of the case.  We review the following, if available, about how the injury occurred and who might be responsible: the facts of the accident, the police report, police officer interviews, witness interviews,  photographs of the vehicles, vehicle repairs bills or estimates, the likely nature and force of any impact, the photographs of the scene, information about the defendant or defendants, information about the plaintiff, traffic court records and any other information available.  Regarding damages, we review the medical records, medical bills, prescription receipts, photographs of injuries, medical research, employment information and any calculation of lost earnings or income, effect of injuries on activities and any limitations, prior medical history and records, whether there are any permanent or residual injuries or limitations, any injury or surgical scarring, and any other information available.  We also consider whether the case will be tried before a judge or a jury, and where the case can or will be tried.[2]

The trial lawyer and I sit down and go through all of the evidence we have to present on the client’s behalf.  We consider what defenses the attorney for the insurance company will have for the other side.  We then estimate what we feel a jury, or a judge, would be likely to return as a verdict.  Usually we arrive at a range of the likely verdict, and within that range, the most likely verdict.  That figure becomes the starting place for determining value for negotiations.

The process to reach a final value is lengthy and complex.  However, our comprehensive approach rewards our clients’ patience by allowing us to provide them with the best result we feel we can achieve.

About the Author: Chris Cloude is a claims consultant with the Fredericksburg injury attorneys of Allen, Allen, Allen & Allen. Working with Fredericksburg car accident lawyer Edward Allen, Chris maintains a strong record of successfully assisting clients with their car accident injury claims.

Richmond Injury Lawyer Scott D. Fitzgerald

Author: Attorney  Scott D. Fitzgerald

On August 28, 2009, the gas pedal on Mark Saylor’s loaned Lexus ES3500 stuck under the floor mat while he was driving the car on a San Diego highway.  After reaching speeds approaching 100 mph, a passenger was able to place a frantic 911 call before Mark Saylor lost control and crashed, killing everyone in the vehicle.  The family’s products liability claim against Toyota was later settled for an undisclosed sum.[1]

Over the past decade, the National Highway Safety Transportation Administration (NHSTA) has received over 3,000 reports of sudden acceleration incidents involving Toyota manufactured vehicles.  Upon investigation, many of them appear to have involved operator error, but at least five deaths have been confirmed by the NHSTA as a result of gas pedal malfunctions.[2]

The NHSTA and NASA collaborated to investigate what was causing the gas pedals to stick, and more importantly, whether Toyota successfully fixed it with recalls in 2009 and early 2010.  Their report, recently issued in February, concluded there were no electronic problems causing the inadvertent acceleration in any of Toyota’s models.  Instead, the problems were caused by mechanical failures; specifically, sticky gas pedals and floor mat entrapment of the accelerator.[3] Secretary of Transportation Ray LaHood announced: “[t]he verdict is in.  There is no electronic-based cause for unintended high-speed acceleration in Toyotas.  As we stated last year, there are only two real-world causes of high-speed unintended acceleration in Toyotas.  First, some Toyota floor mats entrapped drivers’ gas pedals while their vehicles were in motion.  Second, so-called ‘sticky pedals’ made some Toyota accelerators too slow to release.”  This encouraging report indicates that Toyota solved the glitches last year with their recalls targeted at replacing sticky gas pedals and securing floor mats to prevent interference with pedals.   Accordingly, pedal-related complaints to the NHSTA about Toyota vehicles dropped over 90% since these two major recalls.[4]

As a result of these problems, Toyota has been the target of hundreds of products liability lawsuits over the issue of sticking accelerators, many of which have been consolidated into one class action suit that will be heard by Judge James Selna in the United States District Court for the Central District of California.[5] The case is presently set for trial in February 2013.[6] These products liability lawsuits accuse Toyota of knowing about the sudden acceleration problem and hiding it until media reports about the issue made that impossible.  Several insurance companies have filed subrogation claims against the company, alleging they have paid out insurance claims that relate to defective products on Toyota vehicles.[7]

In total, Toyota has been fined $48,800,000.00 by the U.S. government for their mishandling of the recalls.[8] The NHSTA found that Toyota failed to promptly report the problem to federal regulators and also delayed  - until after the much publicized accident in San Diego – before they issued recalls, despite knowing of the issue well before that.

The NHSTA announced plans to perform research to ensure similar problems do not occur in the future.  LaHood announced that his administration would conduct studies on electronic control systems such as brake overrides, standardized keyless ignition systems and the benefits of event data recorders, or vehicle black boxes, on all new vehicles.[9] He also pledged to review the placement and design of accelerator and brake pedals on cars in the future to avoid mat entrapment issues.

About Scott D. Fitzgerald: Scott Fitzgerald is the great grandson of the Firm’s founder, George E. Allen, Sr., and is the fourth generation of the Allen family to join the Allen Law Firm. He is focusing his practice exclusively on personal injury cases including car accident cases and motorcycle accident cases in the Richmond, VA area.  Scott is dedicated to protecting the best interests of his clients and defending their rights against insurance companies.

Fredericksburg Car Accident Lawyer Kathleen Llewellyn-Duncan

Author: Attorney Kathleen Llewellyn-Duncan

Winter weather not only makes special demands on you when driving, but also on your vehicle.  To avoid problems this winter, be prepared.  The following tips can help you avoid an unpleasant or even dangerous situation this winter.

1. Get your oil checked.

Make sure you take your car in for a full oil change before the really cold weather approaches.  When the air gets colder, it gets thicker.  Thicker oil will not circulate as well, and may make it harder to start your engine.   Be sure to check your manual, because you might need to change to an oil with less viscosity (a thinner oil than you would use in summer time).[1] For instance, some vehicle manufacturers recommend 10w-40 in the summer and 5w-30 in the winter.[2]

2. Check your windshield and wiper blades, and replace if necessary.

If your windshield has a little crack or chip, you’ll want to get it fixed. Freezing temperatures cause those damaged places to become worse; cracks can widen and a hole may open up suddenly.  You don’t want that to happen in the middle of a snow storm or at night on a highway.   Make sure your wiper blades are in good condition to be able to clear the snow or slush so you have good visibility. Be sure to keep your windshield wiper fluid filled.  As we get snow and chemicals are spread on the roads, the contaminants build up.  You’ll want to be sure to keep your windshield clear of any residue that could affect your vision.

3.  Check the battery.

“The chemical reactions inside of batteries take place more slowly when the battery is cold, so the battery produces fewer electrons. The starter motor therefore has less energy to work with when it tries to start the engine, and this causes the engine to crank slowly.”[3] Clear any corrosion that has built up on the battery ports or connections.  If your battery is older, you may want a certified mechanic check to be sure it will maintain a charge.  Some batteries need fluid added.

4.  Check your radiator and radiator fluid.

The antifreeze in your car radiator serves three main functions: heat transfer, corrosion protection, and freeze-boil protection.[4] Typically, antifreeze should be close to a 50% mixture between water and antifreeze.[5] Your owner’s manual will show you how to check the radiator fluid level, and you can get an inexpensive coolant mixture tester kit at most auto repair stores to see if you have the right mix.  (Oftentimes adding water in the summer when the radiator overflows or water evaporates can lead to a mixture that has too little antifreeze to properly protect your engine from cold in the winter.)

5.  Check your tire tread depth and tire pressure.

Excessive wear resulting in inadequate tire tread depth can cause tires to lose traction and slide more easily on wet, snowy or icy roads. Virginia law states that tires must have at least 2/32’s of an inch of tread, and must not have worn through to tread wear indicators, if the tires have such indicators.[6] “Higher temperatures in the summer cause the air in your tires to expand, and the pressure rises; as air temperatures cool in the fall and winter, the air contracts and the pressure falls.  A tire that was properly inflated for the summer will probably be underinflated in the winter.  Experts estimate that every time the outside temperature drops ten degrees, the air pressure inside your tires goes down about one or two PSI. Tires also lose air normally through the process of permeation. Under-inflated tires can cause a car to react more slowly to steering. Drivers should check their tire pressures frequently during cold weather, adding enough air to keep them at recommended levels of inflation at all times.”[7]

Winter weather requires foresight and preparation from a driver, as well as more attention and focus.  Check your vehicle as indicated above, and concentrate on your driving.  Hang up the cell phone and pay attention to your driving, so we can all get where we are going safely.