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.

Attorney Christopher A. Meyer

Author: Attorney Christopher A. Meyer

We’ve all heard the lawyer jokes about ethics and whether they really have any. In fact, there are strict ethical standards that lawyers must follow that are quite specific about what lawyers can and cannot do. If you have watched any crime shows, you may at least have some passing knowledge of some aspects of legal ethics, but here are a few of the ethical constraints that we, as personal injury lawyers, must follow.

• A lawyer must keep information given to him about a personal injury case or any case in total confidence. This is part of the “attorney client privilege”; it means under most circumstances, if you tell a lawyer something that is relevant to your case, your attorney cannot reveal it or be required to reveal it. The purpose of this rule is to allow a lawyer and a client to have a frank, open discussion about the facts of their personal injury case or other personal matters that might affect it, and allows the lawyer to give complete legal advice after being told all the facts and information that a client thinks the attorney needs to know. There are some exceptions to the rule, however. First, the privilege only applies when there is an expectation of privacy. If you tell a lawyer deep secrets about an automobile accident at a cocktail party where others can overhear you, the privilege may not apply. Similarly if you tell an attorney something that was in yesterday’s newspaper, there’s normally no expectation of privacy. The privilege usually applies after a person has become a client, or when having a conversation about becoming a client (even if a contract of employment has not been signed yet).

• A lawyer is required to explain his legal fees in detail before you enter into a contract. To avoid any misunderstanding, this is normally done in writing although that’s not absolutely required. There are no real limits on how much a lawyer can charge, although exorbitant fees are unethical. The fees and any associated expenses must be fully explained to the potential client who can then make an informed decision about whether or not to hire the lawyer. Here at the Allen & Allen Firm, we always have our clients sign a written contract which is carefully reviewed with the client.

• A lawyer cannot knowingly make a false statement of law or fact to others when representing a client. Although a lawyer can “characterize” facts on his client’s behalf, the lawyer is not allowed to state a fact the lawyer knows is false. In other words, a lawyer is not permitted to lie for a client in court.

• A lawyer representing a client is not allowed to communicate directly with the person on the opposite side if that person is represented by a lawyer. All conversation and communications between a lawyer for one side and the other side must be done through or with the express consent of the lawyer for the other side. In personal injury cases, this means your lawyer can’t talk with the other person if they are represented by a lawyer (usually hired by the insurance company), but only with that person’s lawyer.

• A lawyer is forbidden from representing two clients who have conflicting interests. This seemingly simple rule is not easily applied in particular cases, and may be waived in some instances with the written consent of all involved parties, but in general a lawyer is supposed to represent a client zealously and he cannot do that if there are conflicting issues.

• If a lawyer makes a serious mistake that causes the client harm, he is required to tell the client and to make it right. There are many deadlines in personal injury trial work, for example, and sometimes the failure to meet one of them means that the client will have lost a case that might have been won. If this happens, and few of us are perfect, our ethical obligation is to call the client in, explain the situation, suggest the client seek legal advice, and make it right.

Personal injury lawyers are sometimes asked by a client for a loan to help the client stay financially afloat until their case settles. Ethically, a personal injury lawyer is forbidden to do that, except in very limited areas dealing with the advancing expenses of the case. An attorney can recommend lending agencies who make loans to personal injury victims, but the lawyer or law firm cannot make loans directly no matter how desperate the client is or how meritorious their case is.

Most attorneys realize their reputation and their credibility with judges, other attorneys, their clients, and the public depends on being scrupulously honest and accurate. Once lost, a good reputation as an ethical attorney is very difficult to regain. But these ethical rules are more than just good practice; the violation of these rules can result in an attorney having his law license suspended or revoked.

I’ve described above just a few of the very complicated ethical rules that personal injury lawyers are expected to follow. If you have any questions, please write us and we will be more than happy to explain the very complicated rules of ethics that we have to follow.

Attorney Christopher A. Meyer

Very seldom do we discuss the details of Virginia Supreme Court decisions interpreting insurance contracts; these are true lawyer issues that can put normal folks to sleep.  But this recent case is important if you are in an automobile accident and are seriously injured.  So important that if you are seriously injured and don’t at least ask a lawyer about this you may leave a lot of money that should be yours in the insurance company’s pocket.

As you probably know automobile insurance contracts contain maximum limits of coverage.  If a driver crashes into the rear of another car and injures someone, then the at-fault driver can be sued and his insurance company will pay the judgment.  However, regardless of the amount of the verdict, the insurance company only has to pay its maximum limit of per person coverage stated in the policy.

The at-fault driver then has an excess judgment against them for the amount over the maximum limit, but very rarely does anyone have significant personal assets to pay such a judgment.  Furthermore, most such excess verdicts can be eliminated in bankruptcy court.   We have represented many people with crippling injuries, and hundreds of thousands of dollars in medical bills alone, who can only collect $25,000 or $50,000 because that is all the insurance the person who caused the accident has and there are no other reachable assets.

People can protect themselves from this problem by buying higher limits on own automobile insurance policy.  All automobile insurance policies in Virginia are required to include something called “underinsured motorist” coverage.  Basically this coverage provides that if you are in an accident and the defendant (the at-fault driver) has inadequate insurance coverage limits, say $25,000, but you as the injured person have an insurance policy with a higher coverage limit, say $100,000, then your insurance policy will pay the difference.  In this case example, your company would pay $75,000, in addition to the $25,000 paid by the at-fault driver’s insurance company, assuming that the injuries and liability are sufficient to warrant that much.

The Virginia Farm Bureau v. Williams case, which was decided by the Virginia Supreme Court on June 4, 2009, adds a complicated wrinkle to this analysis.  Suppose in our example the at-fault driver is on his or her cell phone, totally ignores the traffic in front, and smashes into the back of another car causing the driver of that stopped car to suffer numerous broken ribs and broken legs which requires months in the hospital to recover and the medical bills alone exceed $400,000.  Suppose that the at-fault driver has only a $25,000 policy, which is actually the minimum limit that is legal in Virginia.  Suppose the injured person has a policy that covers them up to $100,000 but there are three cars on that policy.  Before Virginia Farm Bureau v. Williams, we thought the law was that the injured person’s insurance carrier would have to pay only another $75,000.  In the Virginia Farm Bureau v. Williams case, the Virginia Supreme Court decided that in some circumstances the injured person’s insurance company might have to cover separately for each car on the policy.  After all, look at the declarations age.  The insurance company with three cars on the policy usually charges three separate premiums for underinsured motorist coverage, so why shouldn’t there be three separate coverages which can be added up or “stacked”?  In this example, the three coverages would total $300,000, by adding up the $100,000 limit for each of the three cars on the policy. After deducting the $25,000 that the at-fault driver’s own company would owe, there would be up to another $275,000 available from the injured person’s own insurance company.  This total of $300,000 would be a far better result that a mere $100,000.

The analysis is quite complicated and the case applies to Virginia insurance contracts only.  Other states have different rules. Lawyers disagree on the circumstances when this kind of stacking is allowed and when it is not.  However, if you are seriously injured by the fault of another driver and have insurance of your own, you owe it to yourself to seek the services of an attorney and ask whether this case might apply to your situation.  In the Virginia Farm Bureau v. Williams case, the injured person was eligible for an additional $550,000 based upon the particular policy language in that policy.

Most lawyers, like those in our Firm, do not charge for an initial consultation.  Bring your policy in and let us look at it, and we will be able to give you some advice on what options you have.

About the Author: Chris Meyer is a Richmond car accident lawyer with the firm Allen, Allen, Allen & Allen.

Author’s Note: On September 18, 2009, the Virginia Supreme Court announced that it would rehear this case. This means that they are reconsidering the legal opinion that they just wrote. This is rarely done, and usually the Court makes some minor adjustments in its language after a rehearing. However, technically, the opinion is withdrawn for further consideration.

Attorney Melinda H. South

By Attorney Melinda H. South

A tort is a wrongful act resulting in injury or damages, for which the civil law provides that the injured person (or the person suffering damages) may seek recovery from the person who caused the injury. The person or “party” who suffers harm from the wrongful conduct of another is known as the plaintiff or claimant. The person or “party” who caused the injury is known as the defendant or tortfeasor. The lawsuit is called a “tort action”.

There are three elements of a tort action, which are often referred to as the three-legged stool. All three must be present to have a valid claim. These are (1) a duty; (2) a breach of that duty; and (3) damages resulting from the breach of that duty. The plaintiff must show that the defendant was under a legal duty to act in a particular fashion; that the defendant did not act according to that duty (or “breached” that duty); and that the plaintiff suffered injuries or losses (damages) as a result of this breach. Whether a defendant violated a duty owed to plaintiff is determined by the common law or by statutory law. The common law is the general body of law that has developed over many years through court decisions or “opinions”. In the United States, this “common law” sometimes even goes back to the common law of England. Statutory law is the body of law established by written laws passed by the legislature

When a party has suffered damages from the tortious or negligent conduct of another party, the damaged party can bring a claim for monetary damages. Negligent conduct is an act or failure to act using ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances.

If a person is injured in an automobile accident, the damages would usually include medical expenses, lost wages due to being unable to work as a result of the injuries, and also pain, suffering and inconvenience. There may also be a claim for future losses. These types of damages are called “compensatory damages”, as the recovery for these items is intended to compensate the person who has been injured.

In addition, punitive damages may be sought in appropriate cases. Punitive damages are damages intended to punish the tortfeasor and also send a message to the community that the tortfeasor’s conduct will not be tolerated in the community. Punitive damages are only allowed when the tortfeasor’s conduct is more than just negligent, that is, more than just the failure to use the ordinary care that a reasonable person would have used under the circumstances. In Virginia law, there are two basic circumstances when punitive damages are available. First, when the tortfeasor has acted with actual malice towards the plaintiff. Second, when the tortfeasor has acted in conscious disregard to the plaintiff’s rights, or has acted with reckless indifference to the consequences of his conduct when the tortfeasor is both aware of his conduct and is also aware that his conduct would probably result in injury to another.

Even if a party has been injured by a negligent party in order to prevail in court the injured party must himself be free of fault in the accident. In Virginia, any negligence on the part of the plaintiff will bar a recovery. This is called “contributory negligence”. Virginia is one of only a very few states that still have this rule of law.

A tort action can be filed in either General District or Circuit Court depending on the amount of the claim. Any claim for $4,500 or less must be filed in the General District Court. Claims for more than $4,500 and up to $15,000 can be filed in either the General District or Circuit Court. Claims for more than $15,000 can only be filed in the Circuit Court.

About the Author: Melidna H. South is the “go to” person for answers to legal questions regarding Virginia and national case law, state and federal safety regulations, and building and fire codes at the personal injury law firm of Allen & Allen. Melinda is based in the Richmond, Virginia branch.