Chesterfield injury attorney Trent S. Kerns

Author: Attorney Trent S. Kerns

You’ve just had an accident. You’re heart-rate is understandably high and you’re likely frazzled. While you are dealing with the initial shock, there are important things you should try and remember that can help you if you have an injury claim.

1. SEE MEDICAL HELP FOR INJURIES. First, if you or someone else is injured in the accident, dial 911 or ask someone else to call for you, so that anyone injured  can receive medical care as soon as possible. If you’re not seriously injured, you may want to postpone getting medical attention until after you’ve spoken to a police officer, but generally, the sooner you receive  treatment for your injuries, the sooner you’ll be  on the path towards healing.

2. CONTACT THE POLICE & REPORT THE ACCIDENT. Following any accident, regardless of size, contact the police, even if the accident is on private property. It is essential that you report the accident to the police. If the police aren’t contacted, many insurance companies will try to dispute that the accident even happened, especially if their insured  doesn’t report it. The police officer may also be able to obtain information about the other driver for you, and can verify the information, too.

3. GET ACCIDENT INFORMATION & EVIDENCE. Next, always get the other driver’s information. If possible take pictures of the vehicle before leaving the accident scene. Keep in mind that the person driving the vehicle may not be the actual owner of the vehicle, so you may need to find out that information as well.[1] If photos aren’t obtained at the scene, you or someone for you should go to the towing storage facility to take photos of your vehicle. If it’s absolutely impossible to obtain photos of your vehicle then write out a detailed description of ALL the vehicle damage.

4. REPORT THE ACCIDENT TO THE INSURANCE COMPANIES. Then make sure you report the accident to your insurance company, as well as the other driver’s insurance company so that they can each begin setting up the claim.  You may have a type of coverage on your policy called “medical payments”; if you do, your policy requires that you give “prompt notice” to your insurance company or you may forfeit recovery under that coverage.[2]

5. DO NOT GIVE RECORDED STATEMENT OR AUTHORIZATION TO INSURER. Do not give a statement to the other driver’s insurance company, recorded or otherwise. Just report it and give the date, location and name of the responsible driver. They do not NEED your statement to open and begin processing your claim, so don’t be fooled. Insurance companies will also want you to sign medical authorization forms. DO NOT SIGN ANY FORMS. By signing these forms, you are allowing them to review your entire medical history, not just the accident-related treatment. Again, insurance companies WANT this information, but don’t NEED it to set up your claim.

6. COOPERATE WITH YOUR DOCTOR. Report all injuries to your physician even if they begin days, weeks or months following the wreck. Keep all your doctor’s appointments.

7. KEEP NOTES & RECORDS. If you have an injury claim, keep track of your injuries and keep track of your Keep all accident-related documents (i.e. receipts, doctor’s notes, out of work slips, letters from insurance companies) in a central folder or location to refer back to when necessary.

8. KEEP YOUR INFORMATION PRIVATE. Keep the details of the accident mostly to yourself. It is best not to discuss the accident with anyone other than your attorney. Be mindful that ANY information you put on a social-networking site such as Facebook or Twitter is public information and possibly admissible in court.

9. CONTACT AN ATTORNEY IF YOU NEED ONE. The insurance company has a team of trained professionals who immediately begin working for their insured as soon as an accident is reported. If you are injured, you should have someone working for you and should consult an attorney who specializes in accident cases.   If your injuries are minor and you have dealt with insurance companies before, you may not need an attorney.  But the initial consultation to find out if you need an attorney is always free at Allen and Allen, so why not discuss your needs with a professional who is on your side?   If you don’t need us or we can’t help you, we’ll give you some practical advice on how to handle your claim on your own.

These practical tips should help you avoid making any mistakes before you have a chance to talk to an attorney.  When in doubt, protect yourself by talking with an attorney who specializes in injury claims.  And, as always, be careful and drive defensively!

About the Author: Trent Kerns is a Chesterfield accident attorney. For over 25 years he has worked to protect the rights of Virginia residents injured in car accidents and other difficult liability cases.

[2] The SCC Bureau of Insurance form policy requires “prompt written notice” (Model Policy at PP 05 96 01 05).  However, Virginia statutes only require notice “a soon as practicable under the terms of the policy”. See Va. Code §38.2-2201.B, which states: “… the coverages … shall be payable to the covered injured person notwithstanding the failure or refusal of the named insured or other person entitled to the coverage to give notice to the insurer of an accident as soon as practicable under the terms of the policy, except where the failure or refusal prejudices the insurer in establishing the validity of the claim.” (See full statute at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+38.2-2201 ).   Under either requirement, the insurer must be prejudiced by any failure to give timely notice.

Richmond Personal Injury Attorney Priscilla Woody

Author: Attorney Priscilla Woody

If you’re involved in an accident that wasn’t your fault and you suffer injuries, it’s possible that a claim representative from the at-fault person’s company may contact you immediately afterwards and try to settle your claim.  Be careful dealing with the insurance company on your own, because you may need an experienced personal injury lawyer to help you.   Many people have settled their claims shortly after an accident, only to find out later their injuries are much more serious than they thought when they settled.

You probably don’t need an attorney if your collision is a simple “fender bender” and you aren’t injured, or if  your injuries are truly minor.   If your minor injuries heal quickly, you have only one or two visits to the doctor, and you have only a small amount in medical bills, you may not need an attorney.   My Firm’s attorneys regularly meet with people who we advise they don’t necessarily need an attorney and can probably handle the claim on their own.  Of course, some people just don’t feel comfortable trying to handle the claim on their own, and then we can assist them, too.

However, if you are hurt and unrepresented, and not familiar with claims, the hardball tactics used by some claims representatives can leave you feeling like you’re not getting all that you are entitled to, or that you are being taken advantage of in the process.  Settling quickly may not be in your best interest depending on the type of injury you sustained and the type of treatment needed to recover from your injuries.  What you don’t know can hurt you.

We see clients who try to go up against the insurance companies alone because they want to save money by not hiring an attorney; that way, they don’t have to pay the 1/3 contingency fee that personal injury attorneys usually charge, so they think they are saving money.   Or they think it is easy and they can do it themselves and get the same amount of money. Those clients that hire Allen & Allen later, after they find they cannot settle their claims, often come to us because they were victimized by the “hard ball” tactics of some insurance companies.

The claims representative for the liability insurance company (the adjuster) is a trained professional whose job is to have your claim cost the insurance company as little as possible.  That means for you to get as little as possible.   When you don’t have an attorney, the adjuster knows that you are probably not familiar with the claims process or your legal rights, and that you have some reluctance to go to an attorney.   The adjuster will tell you they will work with you and that you do not need an attorney.  In insurance company language, this is called “controlling the claim”.

The adjuster will also tell you that all they need to get things started is your recorded statement to determine liability, or that their insured has not reported the accident so they need your version of what happen.  Then the adjuster will ask a number of questions about how the accident occurred, property damage, your injuries and prior health condition and your personal data. If you give a recorded statement, you are simply giving the insurance company ammunition that they will later use against you in settlement negotiations and any future lawsuit. What you say can and will be used against you by the insurance company.

When the adjuster requests a recorded statement, they don’t tell you that you have a right to refuse[1], or that you are entitled to a copy of your recorded statement.[2] Often time by the time a client retains Allen and Allen, the claim rep has not sent the plaintiff a copy of their recorded statement and they don’t have a copy of their recorded statement so we have to request a copy for our files and the plaintiff.

In addition to the recorded statement, the adjuster will also ask for personal information.   The adjuster will use this personal data to check your record (or “claims history”) with a claims index data bank that is maintained by the insurance industry.[3] The claims index data bank contains information about your prior claims and prior injuries. Unlike other data banks like your credit score, the claims index data bank is not available to plaintiffs and their attorneys – and you can’t get a copy.

Pre-existing conditions and prior claims are fertile grounds for the insurance company as an excuse to make a low offer in your case.  By the time the adjuster offers to negotiate a settlement with you, the adjuster will already have access to the claims index data bank containing your prior claims and pre-existing health conditions. The adjuster uses the prior claims and pre-existing conditions as justification to reduce the value of your current claim by claiming the collision didn’t cause your injuries because you had already had an injury to that part of your body, or that the limitations on your activities caused by the accident weren’t that serious because you had prior health issues that already caused you to have limitations.

If you had a neck or back problem in the past and receive ”maintenance” chiropractic care, the insurer will claim you have a continuing problem even if you haven’t had any pain or problems in years.  If an x-ray or MRI shows that you have degenerative joint disease or degenerative disc disease, these pre-existing conditions become a weapon to reduce the value of your claim.  In fact, these conditions are merely part of the natural process of aging and “wear and tear” on your spine; by age 50, more than 85% of the population will have signs of these conditions, but the vast majority will have no symptoms at all![4] In looking for an excuse to pay you less for your claim, the adjuster will focus on these prior problems and conditions, regardless of whether the problems occurred in close proximity to the time of the collision, or even whether it involved the same body part injured in the collision.

In addition to the recorded statement and personal information, the claims representative will also ask you to sign a medical authorization for the insurance company to obtain your bills and medical records from the collision.   Often the adjuster will use this authorization to also obtain your prior, unrelated medical records.  Sometimes the adjuster will request video surveillance of your activities.  If the adjuster thinks any of this information is different or contradicts anything you told  the adjuster about your injuries and preexisting conditions, they will use it an excuse to pay you less.  If the adjuster thinks you are “over treating”, then you must be exaggerating your injuries so that’s a reason to pay you less.   If the adjuster thinks that you are “under treating”, that is, not following the doctor’s advice or keeping appointments, then you must not be hurt as bad as you say you are, so that’s an excuse to pay you less.  You can easily hurt your case.   By the time the adjuster makes you an offer, they know more about your injuries and health conditions than you do —  thanks to your recorded statement, the claims index data bank and access to your medical information through your medical authorization.

Allen & Allen can help you navigate through the claims process and avoid losing money which you may be entitled to but unable to obtain from the insurance company if you are unrepresented. Before going up against the insurance company alone, ask yourself:  “Am I prepared and knowledgeable enough to handle this on my own without an attorney?”  Of course, the extent of your injuries and the effect on your health and activities is important also.  The more serious your case is, and the more you have at risk, the more you have to lose.  What you need to determine is simply this: “Am I going to come out better or worse with an attorney?”

I and the other attorneys at Allen & Allen can help you answer that question.

About the Author: Priscilla Woody is a car accident attorney with Virginia based law firm Allen & Allen. Priscilla works primarily in the Richmond office of the personal injury law firm.

[2] Virginia law requires the insurance company send you a copy of your statement if you request it.  See Virginia Code §8.01-417, at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-417.

[3] See more information about this database at http://www.allenandallen.com/blog/insurance-index-data-base-system.html.

[4] “By the age of fifty, 85 percent of the population will show evidence of disc degeneration or spondylosis. Of course, the vast majority of these cases are without symptoms. It is only the patients who develop symptoms, chiefly low back pain, that need treatment.” From the Chicago Institute of Neurosurgery and Neuroresearch, at http://www.cinn.org/spine/disc-degeneration.html.

Egena Younger

Author: Egena T. Younger

You have been involved in an accident and are contacted by the insurance company. The adjuster requests your full name, address, date of birth and social security number. You feel uncomfortable providing such private information, but you are told that the information is required to handle your claim, or maybe you are told that it is required to properly issue your check upon settlement of your claim. No matter what the reason, this information is stated to be essential to the investigation and processing of your claim. So you give the adjuster the requested personal information.

What you don’t know (and aren’t told) is that this information is being put into a national data base maintained by a database service that provides insurance companies with a list of your prior Bodily Injury, Auto, Workers’ Compensation and Homeowner claims. This information is provided to any insurance company that subscribes to this service (and almost all of them do); the information provided includes all claims presented by you within the last fifteen to twenty years. This information also includes the coverage for which you filed the claim, the date of the incident, the type of injury, and the settlement for you and anyone else who resides in your household. The database service also sends an alert to every insurance company that has an open claim for you.

This claims information service is traditionally called the “Index System” 1 (or “Index Database”) and is used by most insurance companies to secure the claims history of every claimant. 2 Therefore, when seeking attorney representation, it is very important to inform your attorney of your complete injury claims history. An accurate history will enable your attorney to obtain medical records, if necessary, and avoid potential settlement delays. After your medical treatment for injuries is complete and your attorney has obtained the medical records documenting this treatment, then a submittal package is sent to the insurance company to serve as the basis of settlement discussions. Normally after a review and evaluation by the insurance company, the case is ready for negotiations and a client anticipates an offer will soon be extended. However, if there is a prior claims or medical history that the client’s attorney is unaware of, then at that point the insurance adjuster may request five to ten years of complete medical records for prior claims. Securing these medical records, and sometimes interviewing doctors to separate prior injuries/claims from the present claim, may delay the start of settlement negotiations for many months. If your attorney is aware of your medical and claims history at the beginning of your case, then these issues can be addressed earlier and often more successfully.

The Index Data Base does provide a wealth of information to insurance companies and can be a great investigative tool for them to detect fraudulent claims and identify overlapping claims. However, multiple claims are sometimes interpreted incorrectly and assumptions are made that are not accurate. Those situations require more investigation. Also, as with any database, the information is only as good as the information that is entered accurately into the database, and sometimes errors are present.

About the Author: Egena Younger is a claims consultant for the personal injury law firm of Allen & Allen. She works under the supervision of Chesterfield accident attorney Trent Kerns, assisting clients with their injury cases.

1 - The Index System has been the subject of a number of mergers over the years so that it has become increasingly comprehensive. Up until 1997, the Index System was maintained by the American Insurance Services Group, Inc. (AISG), an affiliate of the American Insurance Association (AIA). See “AISG Announces Key New Options and Services for the Index System; Provides Industry More Information and Flexibility in Evaluating Insurance Claims Through the National Database”, Business Wire, 2/26/1996, at http://www.encyclopedia.com/doc/1G1-18030582.html. In 1997, the Index System was acquired by the Insurance Services Offices, Inc. (ISO) and merged with its databases. See http://www.iso.com/Press-Releases/1997/AMERICAN-INSURANCE-SERVICES-GROUP-BECOMES-PART-OF-ISO-PAVING-THE-WAY-FOR-SINGLE-INDUSTRYWIDE-ALL-C.html.

2 – Presently the Index System is provided by Insurance Services Offices, Inc. (ISO) under the name A-PLUS. According to its website: “More than 980 auto insurers — representing nearly 93 percent of the U.S. private passenger premium volume — have committed to reporting to the A-PLUS database.” http://www.iso.com/Products/A-PLUS/A-PLUS-the-Automobile-Property-Loss-Underwriting-Service.html.

Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen, Esquire

In Part One, I talked about some considerations of why you might hire a personal injury attorney, and some ways insurance companies may take advantage of you if you don’t have an attorney. In Part Two, I’ll discuss some additional considerations.

1. The more money that is involved, the more you have to lose if you handle it wrong. And the more incentive the insurance company has to take advantage of you.

If your injuries and losses are small, then if you make a mistake in handling your claim then you haven’t lost much. However, if your losses are more substantial, then you have more at risk if you make a mistake. And the insurance company has more incentive to help you make that mistake.

2. Insurance companies train their adjusters to keep people from going to an attorney. The insurance companies call that “controlling the case”.

Why would they do that? Because the insurance companies know that an experienced and knowledgeable attorney will be able to ascertain the full extent of all your damages and losses that you are entitled to collect, will know what a fair value for those losses is, and will file suit if the insurance company won’t pay it. In other words, because the insurance company knows they’ll have to pay out more money if you have an attorney.

3. Most personal injury attorneys charge one-third of the recovery as a fee.

Because your attorney is charging a percentage of the recovery, even if he does a lot of work but doesn’t recover much, you won’t owe him much. The attorney’s financial incentive is to get as much money for you as possible. Suppose your tax preparer’s fee was only a percentage of the money he saved you on your taxes. How hard do you think he’d look to find you more savings?

Some people think a third (thirty-three per cent) sounds like a lot. Usually that’s because they don’t know what the markup is one most of the products they buy. Did you know that the average hot dog vendor on the corner is charging you fifty to sixty-three percent of the price you pay for what you buy? (1) Did you know that when you get a repair at the auto body shop, they are charging you 25% to over 100% “fee” added to the cost of the parts they provide (labor is extra)? (2) Even when you buy a shirt from a store, the store is charging you about a third of the cost you pay. (3) What about paper and envelopes (stationery)?  Average is 40%. (4) So with extensive education, experience and skill required to be an attorney, one-third is a bargain compared to what you pay for products you buy. And remember, too, that the attorney doesn’t get paid until you get paid, too. If the insurance company is difficult, a case may last a year or more, and the attorney doesn’t get paid anything for all the work done until the very end. In the meantime, normally not only is he paying his staff and office expenses and insurance and everything else, he’s also fronting the expenses to file suit, pay doctors for conferences and depositions, court reporter charges, medical records charges, and many other expenses. It’s not unusual for our Firm to be fronting expenses to clients that total in excess of a million dollars, for which we charge no interest. (Many of our competitors do charge interest on advanced expenses, but we do not).

4. You may never have a more educated, more skilled, more experienced advocate for you than when you have a personal injury attorney.

Almost all attorneys have successfully completed a four year college, successfully completed a three year law school, and successfully passed a rigorous licensing examination to be able to practice law. In our Firm, we have attorneys who have attended some of the top colleges in the country, we have attorneys who have attended some of the top law schools in the country, we have attorneys who are listed in the “Best Lawyers in America” books, we have attorneys who have received local, state, national and even international recognition for their accomplishments in the law. We have attorneys who have successfully tried many difficult cases in court on behalf of our clients and have obtained a number of the top verdicts in Virginia. And we enjoy helping people.

Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen

As a personal injury attorney, one of the questions I am most frequently asked is why an injured person needs to hire an attorney to represent them. Here’s an outline of how I usually answer that question.

Sometimes you don’t. If your injuries are relatively minor, if your medical treatment is for only a short period of time, and if your medical expenses and other damages are small, and if you are pretty savvy about business matters and negotiating generally, then you may be able to negotiate a settlement with the insurance company that will net you about the same or maybe even a little more than if you had an attorney. But that’s a lot of ifs, and that only applies to small cases for reasons I’ll discuss below and in Part 2 of this article. Consider the following:

1. Insurance companies have professional adjusters who handle their claims for them, and that’s who you’ll be dealing with.

These are trained professionals whose job it is for your case to cost the insurance company as little as possible. And that means for you to receive as little as possible. They are trained in how to handle claims and how to do that. They know that you have not hired an attorney and that you probably don’t want to. The adjuster assumes you are a person who is willing to struggle along on your own without getting the information and help that you need. And that creates the opportunity for you to be taken advantage of.

2. When you are trying to handle something that you are not knowledgeable about or experienced in handling, it’s very stressful.

You are making decisions about your claim without knowing how to properly make the decisions. Should you give a recorded statement to the insurance company? Should you sign the authorizations the insurance company wants you to? Are you including all the items that you can claim for in your case? Are you calculating them the right way? Is the amount the insurance company offering in settlement a fair amount? Should you sign the release they want you to as part of the settlement?

Facing all these decisions without the proper knowledge and information to feel comfortable with the decisions you are making will make most people miserable. Isn’t the peace of mind of knowing it’s being properly handled to protect your legal rights worth something? And if you end up with the same amount of money as you might net with an attorney handling the case, then in essence you’ve just paid for an attorney you didn’t get. Or the peace of mind.

3. When you are trying to handle something that you are not knowledgeable about or experienced in handling, and money is involved, you are likely to be taken advantage of.

Many people do not like to buy a car. Why? Often because the salesman is very skilled at getting you to buy and you are worried about being pressured into buying, but also because you don’t really know which car is best and what is a good price. When you deal with an insurance adjuster, usually you are dealing with a very knowledgeable professional who is trained to persuade you to do what the insurance company wants and, ultimately, to accept a low offer. The adjuster knows “how the system works” and you don’t. How will an adjuster try to take advantage of you? Well, here are a couple of the most common ways.

Insurance adjusters are trained to try and settle cases shortly after an accident for a small amount of money. The goal is to tempt someone who may not yet fully recognize the extent of their injuries and losses into settling cheap. The insurance company wants a quick settlement for a low amount so it can avoid having to pay a larger amount later when the losses are fully known. In the industry, it’s called “flash money”. The idea is to “flash” the prospect of immediate money in front of the injured person in hopes they’ll take it. That’s just one of the ways that insurance companies try to take advantage of injured people.

Another way insurance adjusters take advantage of claimants is the recorded statement. The insurance adjuster knows the right words to use in asking the questions to lead you into saying things using words that have a meaning or effect that you didn’t realize. That type of interviewing is a learned skill.

Many people are shaken up after an accident, and have a fuzzy memory of the events of the accident. There’s a medical reason for this. Often in the whiplash motion that accompanies many impacts, the brain hits against the inside of the skull and affects immediate short-term memory. This is called a “contre coup” injury. (1) Insurance adjusters take advantage of this when they take recorded statements. The questioning may go something like this:

Q: I guess things seemed to happen pretty fast out there when the accident happened.

A: Yes, it’s almost like a blur.

Q: Do you remember seeing how many people were in the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember seeing the color of the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember noticing what make and model the other car was before the impact?

A: No, I don’t remember noticing that either.

Q: It sounds like you didn’t notice very much. I guess it happened so fast you didn’t really see the other car before the impact.

A: No, I guess I really didn’t.

What the adjuster knows and you don’t is that Virginia has a rule of law called contributory negligence. Under that rule, even if the other driver is 99% at fault in causing your 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. And based on your statement, the insurance company will argue that you are partly at fault too, because you weren’t paying attention since the car was in plain view approaching before it hit you in the side. But the truth is you probably did see it, you just don’t remember because of the type of injury you sustained. But the adjuster knows you don’t know that.

About the Author: Clayton Allen is a Richmond car accident attorney with over 20 years of experience with the Allen Law Firm.

Bill Bootwright, Claims Consultant

Author: William P. “Bill” Bootwright, Claims Consultant

You have often heard the expression “you can’t have your cake and eat it, too.” (1) But that’s exactly what the insurance companies try to do in handling claims. Whatever the situation, they try to argue that means the injured person wasn’t hurt very much. Sometimes they create a problem, and then try to benefit from it. Just the other day I had a case with a claims adjuster where this expression applies.

To give you a little history, the claim involved a motor vehicle intersection accident where our client sustained soft tissue injuries. The collision was so hard his car was totaled. Even though there was an independent non-biased eyewitness who told the police officer at the scene that the defendant (the other driver) had indeed run the red light, and the police officer charged him, the defendant claimed to his insurance company that he had a green light. The defendant’s insurance company did not initially accept that the defendant was responsible for causing the accident, and in fact dragged their feet in conducting their investigation. Finally, they accepted liability in the accident about two months later.

Our client was taken by rescue squad directly from the scene to the emergency room where he was examined, and x-rays showed there were no fractures. Our client was treated and given instructions to stay out of work and take some medications he was prescribed. He was also told to follow up with his primary care physician if needed. Like a lot of people, our client didn’t like going to doctors and thought if he just gave it time, he would get well. Also, he didn’t have any transportation because his car was a total loss, he was in a financial bind because he was unable to work due to his injuries, and he also didn’t have any health insurance.

Because of the delay in the insurance company accepting liability for the accident, our client was unable to seek any further medical care. When the insurance company finally accepted liability and settled his claim for the damage to (loss of) his car, our client was able to purchase a replacement vehicle which enabled him to get to his doctor. When he saw his family doctor about 60 days after the accident, the doctor sent him for physical therapy for eight weeks. With that treatment and the medications, our client made a good recovery, and when he returned to his doctor, the doctor released him from further care for his injuries. (Our client wasn’t completely well, but had recovered to the point the doctor felt he would go on to a complete recovery in the next few weeks without any further treatment).

After we obtained all the medical records and bills and a verification of his time missed from work, we submitted our client’s case to the insurance carrier for settlement discussions. The adjuster’s first offer was only $700.00 over the hospital emergency room bill, and her justification was that because of the delay in treatment from the initial emergency room visit until 60 days later, she couldn’t consider any treatment except the emergency room visit. The adjuster then argued that our client had failed to “mitigate his damages” (2) by following up with his doctor sooner, and that because of the gap, our client’s treatment was prolonged. Therefore, the insurance company would not be responsible for the later treatment. I explained to the adjuster that the reason why the client had not sought further care was because of transportation and financial issues which were caused by the negligence of their insured and the insurance company’s own delay. I further pointed out that our client had indeed practiced “mitigation” of his damages by not going to his family doctor until it was clear that the medications, rest, and staying out of work were not going to allow him to recover.

After several months of negotiations, the claims adjuster finally agreed with my explanation, but only accepted the medical bills for only the first 4 weeks of physical therapy. When I asked why, the adjuster stated that for soft tissue injuries the standard time period for recovery was three months, and that was in the middle of the physical therapy. I pointed out to the adjuster that this “standard” (3) was at best an average, which meant that half the people with these injuries took longer. Furthermore, everybody wouldn’t be at the average unless we were all “cloned”, which is certainly not the case, and that every accident is different with varying forces of impact, different body positions, and many other variables that make recovery time highly variable and unpredictable. Negotiations are continuing, and we will probably have to file a lawsuit.

So the insurance company wants to unreasonably delay accepting responsibility in a case, and then wants to complain the effects of their delay mean they should pay less to the injured person in settlement. (4) Now if that doesn’t fit the expression of “wanting to have their cake and eat it too”, then “I’ll eat my hat.” Oops, oops.

About the Author: Bill Bootwright is a claims consultant in the Mechanicsville branch of the personal injury law firm of Allen and Allen. A former insurance adjuster, Bill works under the supervision of attorney Christopher A. Meyers to assist clients with their personal injury claims.

(2) The “duty to mitigate damages” means that a person must take reasonable steps to reduce their losses, which usually means for injuries to seek medical attention and then follow the doctor’s advice. However, a duty to mitigate damages is violated only to the extent that the failure causes the losses to be greater. See Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983). In this case, there was no indication that our client’s injuries lasted longer or were more expensive to treat due to the delay in treatment. Many doctors do not believe that physical therapy should be prescribed immediately after an injury, but instead there should be some healing of the acute injury before starting physical therapy.

(3) Even the most conservative doctors usually agree that these injuries may take up to a year to recover. Depending on age and pre-existing structural conditions, many people may take longer than that or even have permanent injuries.

(4) Fortunately, juries rarely accept these ridiculous arguments, and usually understand the “reasonable efforts” required to mitigate damages include waiting to see if soft tissue injuries are going to heal with time, rest and medications, before seeking additional treatment. But it’s unfortunate that a lawsuit and maybe trial is necessary to get a fair recovery for somebody who has been injured by someone else’s carelessness. And then the insurance companies complain the system doesn’t work because there are so many lawsuits!

Attorney Priscilla R. Woody

Author: Attorney Priscilla R. Woody

The insurance company wants to settle your case as soon as possible if you are injured and not represented by an attorney. Use of a “Scheduled Release” (1) is a tactic used by insurance companies to entice unrepresented claimants (people who are making a claim to the insurance company) to settle their claims quickly. When claimants are wary and unsure of the claim process and their future medical condition, the insurance representative appeases them with the “scheduled release” and insists that since future medical bills for the injury will be taken care, the claimant is protected against future unknown medical expenses.

Schedule release forms rarely contain a right to cancel the settlement (2) unless the insurance company attempts to settle your claim within 30 days after the accident happens. Under Virginia law, a schedule release or a full release must contain a “right of rescission” notice which states that you (the claimant) have three business days to cancel the settlement agreement by notifying the insurer in writing that you want to cancel the settlement and also returning any funds or check that you received. (3)

The General Assembly recognized that an injured person, for a variety of reasons, may be in a weaker bargaining position than the insurance company. This weaker position and lack of legal advice makes claimants more susceptible to fraud, coercion or undue influence by an insurance company. So for a very short time period, Va. Code § 8.01-425.1 safeguards claimants by providing them the opportunity to avoid a release executed within 30 days of an injury. So if you settle your case within 30 days of your injury, you can change your mind and rescind the settlement if you do so within three days of the settlement.

With a scheduled release, the up front payment is for “pain and suffering” and medical bills to that date. The scheduled release contains language which states the insurance company will reimburse future medical payments either “out of pocket” (whatever is not covered by your health insurance) or “medical bills incurred”. Do not rely on what the claim representative tells you the scheduled release says or means – read it yourself. The insurance company will pay the entire bill if the scheduled release contains “medical bills incurred” language. However, the insurance company will reimburse only your co-pay fees and deductible amounts you paid if the scheduled release contains “out of pocket” language.

The insurance representative (claims adjuster) guesses or estimates how much and how long you might receive medical treatment to determine when the scheduled time period ends, and puts that in the release. It could be 2 months or 5 months. They rarely set a schedule release for 6 months or more because they want to close their files as soon as possible.

You also need to check the language in the “scheduled release” for what the limit is on when you can submit bills. Some scheduled releases say you must submit bills within the set time period. Other scheduled releases say that you can submit bills for treatment you receive within the set time period, and that you have some period of time after that to submit the bills. Suppose you received treatment two and a half months after the date of signing, but you did not receive the bill until three and a half months after the date of signing. If your scheduled release said you had to submit the bill within three months, it would be too late to submit the bill by the time you received it. However, if your scheduled release said you could submit any bills for treatment received within three months after the signing, but had six months to submit it, then you could submit the bill you received and get it paid.

A typical example of a schedule release might provide the following: the insurance company will pay you $500.00 at the time the release is signed (“up front”) for your “pain and suffering”, and then agree to pay you up to $10,000.00 for any medical bills incurred and submitted within a 3 month period after the release is signed (or within three months of the date of injury). If you submit bills for treatment during that 3 month period, you will be reimbursed up to the maximum of $10,000.00. If you submit bills totaling $12,000 during the 3 month period, you will only receive the $10,000 maximum that you agreed to. However, if you do not submit any bills or the bills are submitted for treatment received after the 3 month period, you do not receive any money. You do not receive any of the unused portion of the $10,000 set aside at the end of the 3 month period.

The schedule release is a ploy for the insurance company to keep its money as long as it can by hoping that you forget to submit your bills to them, or you submit them late and they can deny payment to you as too late.

Avoid being susceptible to a weaker bargaining position because of fraud, coercion or undue influence by an insurance company. If you have not recovered from your injuries and are continuing medical treatment, you should not sign a scheduled release. Your doctor, not a claim representative, is better at determining your course of treatment – how long to treat, what type of treatment and the likely recovery period from your injuries. When presented with a scheduled release, do what is best for you and consult your doctor and an attorney. Any time you sign a scheduled release settlement, you are giving up the right to seek more compensation if your injuries take longer to heal or require more treatment than the maximum time period or amount that is allowed in the release. You take the risk that you are settling before the true extent of your injuries and losses is known, and that you are settling too cheap.

About the Author: Priscilla Woody is a Richmond personal injury attorney. She has worked both as a plaintiffs’ personal injury attorney and as defense counsel for a major insurance company. With this diverse background, Priscilla has a broad perspective and understanding of personal injury litigation and insurance law

Attorney Malcolm P. McConnell

Author: Attorney Malcolm P. McConnell

For years, some doctors and insurance companies have been telling us and our government that unless frivolous medical malpractice lawsuits are curtailed, and unless out-of-control verdicts are limited, doctors will be driven out of practice by high malpractice insurance premiums. Their efforts have been very successful in Virginia, where doctors enjoy the privileges of a special class, exempting them from being held responsible for the consequences of their negligence.

Throughout this conflict, your attorneys at The Allen Law Firm have worked hard to correctly inform the public and to continue to champion the old-fashioned value of personal responsibility for everyone, including negligent physicians. Now, a new study proves – yet again – that medical malpractice victims have been unfairly burdened for the benefit of insurance companies and not to help doctors.

Americans for Insurance Reform recently released a new study called True Risk: Medical Liability, Malpractice Insurance and Health Care. It is co-written by actuary J. Robert Hunter, Director of Insurance for the Consumer Federation of America, and former Federal Insurance Administrator and Texas Insurance Commissioner. The full study is available for download by clicking here.

Its major findings are:

• Medical malpractice premiums, inflation-adjusted, are nearly the lowest they have been in over 30 years.

• Medical malpractice claims, inflation-adjusted, are dropping significantly, down 45 percent since 2000.

• Medical malpractice premiums are less than one-half of one percent of the country’s overall health care costs; medical malpractice claims are a mere one-fifth of one percent of health care costs. In over 30 years, premiums and claims have never been greater than 1% of our nation’s health care costs.

• Medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

• The periodic premium spikes that doctors experience, as they did from 2002 until 2005, are not related to claims but to the economic cycle of insurers and to drops in investment income.

• Many states that have resisted enacting severe restrictions on injured patients’ legal rights experienced rate changes (i.e., premium increases or decreases for doctors) similar to those states that enacted severe restrictions on patients’ rights, i.e., there is no correlation between “tort reform” and insurance rates for doctors.

Bree King, Claims Consultant

Attorney Melinda H. South

Recently I received a call from a young man who had signed a Release to settle his personal injury claim. He wanted to know if he had any recourse. It turns out he had signed a Release only three weeks after his motor vehicle accident even though he was still in pain. He thought he would get better, so he accepted an offer of $750 cash plus $10,000 to pay for doctor visits incurred in the following 60 days only. Unfortunately, his pain worsened, and his doctor referred him to physical therapy. The young man completed therapy over the next two months, but he was still in pain. His doctor then referred him for an MRI of his shoulder which showed a full tear of the tendon that could only be repaired by surgery. Since the 60 days had passed, his claim was forever closed because he had signed the Release too soon.

Lessons learned: Do not be too eager to settle your personal injury claim. Make sure you have recovered one hundred percent before you sign the Release. Your health will affect you for the rest of your life; allow enough time to pass to be sure of your recovery before you settle. Generally, if you are over 18 years old, the Statute of Limitations in Virginia is two years from the date of injury. By that time, you must either have settled your claim or have filed suit. (Note there are some exceptions, and in some cases you must give a specific written notice as soon as six months after the injury, so it’s best to consult with an attorney regarding your specific case).

Don’t let the insurance company pressure you into settling. It’s always worth getting some legal advice to “level the playing field” before settling your claim. All companies have goals, and don’t think the insurance companies are any different. They have goals to settle as quickly as possible and for as little as possible. An insurance adjuster is a trained professionals whose job is to meet those goals; you need a trained professional on your side, too, who is looking out for your interests instead of the insurance company’s interests. Some insurance companies actually offer incentives to adjusters who settle the most claims within the first 30 days after an accident.

Most of the time, after you sign the release, you are stuck. There are some ways to “break” a release, but these are difficult. For example, there are some legal requirements a release must meet, and if a release doesn’t conform to these requirements, then the release may not be valid. In 1999, the Virginia legislature passed a statute stating that when a person signs a release within 30 days of the accident, the person shall have 3 days after signing to revoke the release provided: (1) the signer was not represented by an attorney; (2) the revocation is made in writing to the person or persons seeking the release, their representative or insurance carrier; and (3) any money received is returned to the person or persons seeking the release. In 2000, the legislature added that release must contain a notice that the signer has a right to revoke the release. See Virginia Code 8.01-425.1. If a release is missing that notice, then the release may not be valid.

Additional facts that may cause a release to be invalid or “voidable” are (1) if the person who signed the release can prove that the release was signed under duress; (2) the release was signed due to fraud or a misrepresentation of a material fact; or (3) there was some mutual mistake or there was no “meeting of the minds” when it was signed. Obviously these are very technical matters, and proving them almost certainly requires the assistance of an attorney.

So, BE SURE – BE VERY SURE – before you sign a release that gives up your rights. Getting the release signed may be good for the insurance company, but may be bad for you.

About the Authors: Bree King is a claims consultant in the Richmond and Short Pump branches of Allen & Allen. A former insurance adjuster, she works under the supervision of Attorney Christopher Meyer helping clients settle their personal injury claims. Melinda South has been an attorney with Allen & Allen for over 20 years. She is known as a keen legal researcher and assists in the preparation of firm briefs and legal memoranda.

Claims Consultant Chris Cloude

Author: Chris Cloude

You are driving to the grocery store taking your time and following your normal route. As you approach an intersection, the stoplight is green and you proceed into the intersection. Out of the corner of your eye you see a flash, and your car is hit on the passenger side.

A few days later, an adjuster calls you from the insurance company for the person that hit you. The adjuster informs you that the insurance company is denying your claim from your auto accident because their insured says they had the green light, not you.

This story is one we hear almost every day. Without other witnesses, often there is not much that can be done to make a recovery. If the insurance company won’t discuss settlement, the only option is to file suit and go to court. At court, the injured person has the burden of proof. That means the injured person has the burden to prove the other driver is at fault. If it’s just your word against the other driver, that’s usually not enough. There needs to be evidence to prove you had the green light. Even if the investigating officer charges the other driver, that’s not enough to prove your case in civil court. The best way to prove your light was green is through the testimony of a witness.

If you are involved in an accident, you should ask the people who stop for their names and contact information. Even if they didn’t see what happened, they may remember facts that would should you are being truthful about what happened and the other driver is not. Usually witnesses will have more information than just the actual crash facts. That information can support your credibility and undermine the other driver’s credibility.

Of course, to have the testimony of a witness, you must be able to contact the witness. It is important to secure the names, phone numbers and addresses of the witnesses at the scene. Ask the investigating officer if he or she obtained the names and contact information of everyone who was present at the scene, but don’t just rely on the officer. If you can, or if someone else at the scene with you can, then get the information directly. Many times the police officer is so involved in getting medical attention for anyone who is injured, obtaining the information of the people involved in the accident, and avoiding another accident from occurring while all this is going on, that the officer does not get names and contact information for everyone at the scene.

The officer’s first responsibility at the scene of an accident is to attend to the people involved who are injured, and then to assure safety of the scene for other motorists. If you are first to a scene, those should be your priorities also. But if those responsibilities are being taken care of by others, then you can help by getting witness information.

You should obtain the names and contact information of people present at the scene, especially eyewitnesses to the crash, and give that information to the police officer and to persons involved in the crash. That information could mean the difference between whether an injured person is or is not able to recover for injuries and losses caused by someone else, and that difference can mean a lot to someone in that situation. Sometimes all we’ve gotten was the license plate number of a vehicle at the scene, but with some investigation we’ve been able to locate a witness who made all the difference in the case.

About the Author: Chris Cloude is a claims consultant in the Fredericksburg, Virginia branch of the personal injury law firm Allen & Allen. A former insurance adjuster, Chris works under the supervision of Attorney Edward Allen to assist clients in settling their personal injury claims.