Scott Fitzgerald, Law Clerk

Author: Scott Fitzgerald, Law Clerk

Crash test rating systems for new cars have been around for many years, but recent changes in technology and methods are a significant improvement.  The latest reforms have also refined testing procedures and streamlined the ratings system to make it easier for the consumer to understand how well each vehicle performs in a car crash.  Last fall U.S. Transportation Secretary Ray LaHood and the National Highway Traffic Safety Administration (NHTSA) announced that the “5 Star Safety Ratings System” will now evaluate cars based on whether they use crash-prevention and crash-protection technologies.[1] Although the old ratings system also used 5 stars, in recent years most new vehicles were receiving the system’s highest rating, which discouraged innovation in the field of new safety technologies.

The new ratings system awards points for whether vehicles use three of the latest technological developments.  The first is called Electronic Stability Control.  ESC detects loss of steering control by the driver and automatically applies the brakes on one side of the car to correct driver mistakes.  Another cutting-edge advancement is called the Lane Departure Warning System, which monitors lane markings on the road and warns drivers of unintentional drifting.  Lastly, cars receive additional points for using the Forward Collision Warning System, which detects vehicles and objects ahead in the road and cautions drivers of impending collisions.  As NHTSA Administrator David Strickland explained, “[w]e want consumers to embrace these new safety technologies as a way to make vehicles safer …  [These systems] offer significant safety benefits and consumers should consider them when buying a new car.”[2]

The NHTSA also added Side Pole Crash Testing, which simulates a side impact with a tree or telephone pole by analyzing how well a vehicle fares in a 20 mph collision with a 10 inch pole.[3] For the first time, the tests used smaller female dummies to compare how the female body reacts differently than males to the same car crash.  For all frontal crash tests, the female dummy was placed in the passenger seat.  Secretary LaHood said, “[w]ith our upgraded Five-Star Safety Ratings System, we’re raising the bar on safety.  Through new tests, better crash data, and higher standards, we are making the safety ratings tougher and more meaningful for consumers.”[4]

The overhauled ratings system also includes an Overall Vehicle Score that combines the results of all tests to make it easier for consumers to readily identify which automobile will help avoid a collision and keep them safest when a collision does occur.[5]

About the Author: Scott Fitzgerald is a law clerk with Virginia injury law firm Allen, Allen, Allen & Allen. This article is brought to you by the Petersburg car crash attorneys of the personal injury law firm. If you have been involved in a car crash, call an experienced car crash attorney in Petersburg, Virginia.

[2] Karen Aldana, U.S. Transportation Secretary Ray LaHood Rolls Out Upgraded 5-Star Vehicle Safety Ratings System, NHTSA, October 5, 2010, available at http://www.nhtsa.gov/PR/NHTSA-13-10.

[3] To watch a video of cars undergoing this new side pole crash testing, see http://www.autoblog.com/2009/11/18/pole-dance-nhtsa-to-add-new-side-impact-crash-test-w-video/.

[4] Karen Aldana, U.S. Transportation Secretary Ray LaHood Rolls Out Upgraded 5-Star Vehicle Safety Ratings System, NHTSA, October 5, 2010, available at http://www.nhtsa.gov/PR/NHTSA-13-10.

[5] To see how each make and model fared, see http://www.nhtsa.gov/PR/NHTSA-13-10 .

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.

Personal injury attorney George E. Allen, III

Author: Attorney George Edward “Ted” Allen, III

The use of cell phone while driving has resulted in an epidemic of accidents.  The Harvard Center for Risk Analysis reports that each year cell phone distractions cause 600,000 crashes, 330,000 injuries, and 3,000 deaths. This works out to more than 1,643 crashes, 940 injuries, and 8 deaths per day. [1]

The number of cell phone subscribers in the United States has skyrocketed from 44 million in 1996 to over 285 million in 2009.[2] The Insurance Information Institute reported that by the end of 2009, 152.7 billion text messages were sent in the United States every month, more than fifteen times the number just four years earlier.[3]

The National Highway Traffic Safety Administration and Virginia Tech Transportation Institute have reported that as many as 25% of automobile crashes are caused by driver distraction due to cell phone usage; that drivers dialing a phone are 2.8 – 5.9 times more likely to crash/near miss; and that drivers texting are 23 times more likely to crash/near miss.[4]

As technology has advanced, in addition to making telephone calls, users are able to receive and send documents, e-mails, text messages, and even perform research from their hand held devices.  More and more people are using cell phones to conduct business while driving, and this substantially increases the risk of hurting or killing someone.  As a result of businesses requiring their employees to be available to conduct business on their cell phones, Courts have begun to hold employers liable for accidents that occur while employees are conducting business on their cell phones while driving.  This is important because the individual drivers who cause accidents are often inadequately insured; holding the employer responsible, too, often makes the business’s insurance available in addition to the personal insurance of the individual driver.

In some personal injury cases, insurance company lawyers have argued that the injured plaintiff cannot prove that use of the cell phone caused the accident.  However, in recent years a number of research studies have shown that the use of a cell phone while driving affects the ability of the driver to safely operate a motor vehicle.  Several studies demonstrate the human brain to be incapable of fully concentrating on both driving and talking on a cell phone.  These two tasks require the resources of several identical areas of the brain.[5] The New York Times reported that one study states, “When people talk on the phone they are doing more than simply listening.  The words conjure images in the mind’s eye, including images of the person they are talking to.  This decreases reaction time.”[6] In addition, other studies show it does not matter if the driver is using a hand held or a hands-free phone, both are equally distracting.

In summary, in protecting accident victims, it is important that the investigation include the issue of whether the at-fault driver was engaged in any cell phone usage, and specifically whether that usage concerned the employer’s business.  These issues should be fully explored where there is limited insurance coverage so the injured party may be fully compensated for the negligence of the at-fault driver.

About the Author: Ted Allen is a Richmond personal injury attorney with the law firm of Allen & Allen. For over 35 years, Mr. Allen has handled cases involving car accidents and tractor trailer accidents for Virginia clients.

[2] See statistics compiled by the CTIA The Wireless Association, from the CTIA Semi-Annual Wireless Industry Survey for Year End 2009, at http://files.ctia.org/pdf/CTIA_Survey_Year_End_2009_Graphics.pdf.

[3] See statistics compiled by the CTIA The Wireless Association, from the CTIA Semi-Annual Wireless Industry Survey for Year End 2009, summarized in the report “U.S. Wireless Quick Facts Year-End Figures 2009” at http://www.ctia.org/advocacy/research/index.cfm/AID/10323.

[4] Based on National Highway Traffic Safety Administration and Virginia Tech April 2006 study, “The Impact of Driver Inattention On Near-Crash/Crash Risk: An Analysis Using the 100-Car Naturalistic Driving Study Data”, at http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/810594.pdf.

[5] David L. Strayer & Frank A. Drews, “Multi-Tasking in the Automobile”, at www.psych.utah.edu/AppliedCognitionLab/WickensChapterFinal.pdf.

[6] Matt Richtel, “Drivers and Legislators Dismiss Cell Phone Risks” (part of the “Driven to Distraction” series), N.Y. Times, July 19, 2009, at http://www.nytimes.com/2009/07/19/technology/19distracted.html?_r=1.

Richmond Personal Injury Attorney Charles Littlepage Allen

Author: Attorney Charles Littlepaige (“Litt”) Allen

Often I am asked by people who are injured in accidents that are someone else’s fault whether they will benefit from being represented by an attorney. Generally, the answer is yes. However, I always encourage people to take advantage of the opportunity for a free consultation that most attorneys offer, and to use that free consultation to gather enough information to make an informed decision about whether to retain an attorney.

Sometimes people are only slightly hurt in an accident, and fortunately make a full recovery quickly. In these instances, I often explain to the injured person how they can handle their claim with the insurance company directly without a lawyer. However, when the injured person has required several doctor visits because of their injuries, generally they will benefit from the representation of an experienced personal injury attorney.

When deciding whether to retain an attorney, it is important for an injured victim to understand their legal rights. Most people are surprised to learn that, in Virginia, they are not entitled to a settlement with the insurance company for the person who is at fault. Insurance companies only offer settlements in order to save themselves from paying out more if you go to trial and get a verdict. In fact, your only legal right is to sue the person you say is at fault and then got to trial, where a judge or a jury determines the amount of your compensation. In determining that amount, more than just the economic losses – meaning the medical expenses and lost wages – are considered. In addition to these financial losses, the compensation awarded should also include consideration of the injuries as well as the physical pain and inconvenience which are always associated with injuries. These subjective losses, which affect one’s quality of life, are often more significant than the economic losses.

While a trial is the only legal right an injured victim possesses in order to be compensated, an experienced personal injury trial lawyer can often negotiate a settlement for their clients without a trial for the following reasons. First, such an attorney can develop the evidence for trial in a manner most advantageous to their client, and present it to the insurance company in a persuasive manner. Secondly, the experienced attorney can properly evaluate the case and estimate the likely potential award their client might receive at trial. Finally, the experienced trial attorney is more likely to negotiate an acceptable settlement offer from the insurance company because of that attorney’s proven reputation for achieving successful trial results. This is true because — as explained earlier — any case which does not settle will have to be tried to determine the amount of a client’s compensation. Obviously, those attorneys who have the experience and reputation for securing good results for their clients through trial have the clout or the credibility with the insurance companies to generally get good settlement offers before trial.

To illustrate this point, I will mention a situation that happened when I first began practicing law with the firm more than 25 years ago. At that time, the senior attorney who served as my mentor was hired by a man who was offered $6,000 in settlement from the insurance company prior to engaging us to represent him. Our senior trial attorney was ultimately able to negotiate an $18,000 settlement for this client without the need of a lawsuit or a trial. Obviously, this particular client was very well served by his decision to engage experienced counsel to represent him.

In conclusion, it is probably better to ask than to be sorry. In other words, if you have been injured through no fault of your own, then consulting with an experienced personal injury attorney is a prudent course. At our Firm, the initial conference is always free of charge.

About the Author: For over 25 years, Mr. Allen has handled a variety of personal injury cases, making recoveries for his clients ranging from a few thousand dollars to almost six million dollars. Mr. Allen provides litigation support and works on cases primarily from the Richmond, Mechanicsville and Short Pump offices.

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.

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 Christopher A. Meyer

Author: Attorney Christopher A. Meyer

All of us who are parents have probably either let our children visit other families’ homes or have had other children over at our home. Sometimes these are just afternoons, sometimes they are “sleepovers” or even longer. I think we all recognize that when other people’s children are placed in our care we have a moral obligation to see that they will be well taken care of. But is there a legal obligation as well?

In a recent case, Kellermann, Administrator v. McDonough (July 17, 2009) the Virginia Supreme Court said yes. In addition the Justices said that if a promise is made, such as the children will not be allowed to be in a car with a young male driver, and that promise is broken, then there may be liability.

The trial judge decided, on a motion called a demurrer, that even if all the facts alleged by the suing parents were true, there could be no recovery because there was no duty to supervise teenagers in Virginia and therefore dismissed the case without a trial. The Virginia Supreme Court, in overruling the trial judge, assumed that the facts as alleged were true and held that such a legal duty does exist in Virginia and sent the case back for trial by a jury.

The facts as alleged are a parent’s worst nightmare. Two girls had been best friends when they had lived in Henrico County and went to school together. One of the girls had moved with her family two years before the accident to Wake Forest, North Carolina. At the time of the accident both girls were 14. The girl now living in Wake Forest, was having some problems and her parents thought that if she could come back to Henrico for a day or two and visit her friend, that it might settle down their daughter.

An agreement for a sleepover was reached and the Wake Forest girl was driven by her father about half way to Henrico, where she was picked up by the Henrico girl’s mother. At the transfer, the father emphasized that his daughter was not to be allowed in a car driven by a minor boy, and the mother of the Henrico girl agreed. When they got to Henrico, the girls were taken by the mother to a mall and dropped off. They went to a movie. There they met a 17-year-old boy that they knew, and also another 14-year-old female former classmate. After the movie, the boy offered to give the three girls a ride home. The girls called the Henrico mother, who agreed to let the 17-year-old boy drive the three girls home. The Wake Forest girl was reluctant to ride with a teenage boy driving, so the other former classmate tried to contact her own parents and other adult friends in the Richmond area for a ride home. Unfortunately, she could not reach anyone. Eventually the three 14-year-old girls got in the car with the 17-year-old boy.

The 17-year-old boy drove wildly at a high rate of speed on a curvy road over vehement protests from the girls. Apparently he slowed to 25 miles an hour at one point and taunted the girls by saying that they could jump out at that speed if they wanted to. The Wake Forest girl even texted her father and a friend during the ride and related that she was afraid she was going to die. The 17-year-old boy lost control at very high speed, ran off the road and hit a tree. Tragically, the Wake Forest girl died at VCU/MCV Hospital.

The Virginia Supreme Court held that there is a duty to use a reasonable degree of care to protect minor children placed in one’s care. As the Justices noted, if this wasn’t true then a parent could invite 4 or 5-year-olds to a sleepover and allow them to play with loaded guns. Secondly, the Justices stated that if one makes a promise in relation to the care, such as “no riding with a teenage boy driver” then a violation of that promise can result in liability.

As a former parent of teenagers, my belief is that this will most often arise in the context of alcohol. One certainly has the right in Virginia to teach one’s own teenage children about alcohol and allow them to experiment in their own home. But if a parent throws a party where minor children will be present and promises the other parents that “no alcohol will be served”, and then alcohol is served, there may not only be criminal liability but civil liability as well for any harm that occurs as a result.

Therefore, be careful. The parents of minor children that place them into the care of others on a sleepover or other occasion have the right to expect that the other parents will use reasonable care to keep their minor children safe, and if any promises are made as part of the occasion the parents and minor children have the legal and moral right to expect that the promises will be kept. And, as every parenting magazine recommends, be sure you know the parents that you entrust your child to, and consider the responsibility you are entrusting the other parents with when you leave your child into their care.

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