Richmond Injury Lawyer Scott D. Fitzgerald

Author: Scott D. Fitzgerald, Richmond Personal Injury Lawyer

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

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

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

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

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

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

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

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

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

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

You need someone knowledgeable working on your claim and looking out for your interests as soon as possible also. If you’ve been injured after an accident, you should consult an attorney right away. A lawyer can help you decide whether it is in your best interests to pursue a claim and how to do so.

What can a personal injury law firm like Allen & Allen do for you that you can’t do for yourself?

First, one of our experienced and knowledgeable attorneys can advise you of any crucial deadlines in your case. They can explain relevant Statutes of Limitations that require you to file suit on or before a certain date. They can also tell you about time limits for filing mandatory “notices” of your claim in cases involving certain types of defendants. For instance, in Virginia, in a claim against a city, usually you must give a written notice within six months or the claim against the city is barred. Other missed deadlines can also prevent you from making a recovery.

Second, at the direction of our attorneys, our team of investigators will promptly investigate the facts surrounding your accident. After car accidents, tractor trailer accidents, slip and fall accidents, premises liability injuries, and wrongful deaths, Allen & Allen’s investigators are prepared to interview law enforcement officers and eyewitnesses, take photographs of the scene or vehicles, and preserve other relevant evidence that may help win your case. Sometimes a single picture of the damage to your vehicle, or of bruises or swelling, can be the key to a successful recovery in your case.

Third, the attorneys at Allen & Allen can identify the potential defendants in your case. When you are badly injured and your medical bills are substantial, this information may be critical to making sure that you receive a fair monetary settlement or verdict. Sometimes it’s not easy to identify all persons and/or entities, such as businesses or government agencies, bearing legal responsibility for your injuries. An experienced personal injury attorney has the skills and ability to track down the defendants in your case. The sooner you contact an attorney, the sooner the attorney can begin this process and the more likely it is this inquiry will be successful.

Fourth, our personal injury attorneys will explore all sources of recovery in your case. These may include:
• Insurance policies that may cover vehicles involved in your accident;
• Insurance policies that provide coverage for the person(s) or entities responsible for your injuries;
• Insurance policies that cover an employer of the person responsible for your injuries;
• Insurance policies that cover the vehicle which you occupied at the time of the accident; and
• Your own insurance policy and the policies of family members who live with you.

Fifth, and probably most important, an experienced attorney is equipped to develop a legal strategy that puts your case in the best posture to maximize the recovery you deserve. If your case is small because your injuries heal quickly and little medical treatment is required, then it may not be cost effective for you to have an attorney and you may be able to handle the claim on your own. In either event, a prompt meeting to discuss your claim will allow our attorneys to help you decide what you want to do. And remember – there is no cost or obligation for an initial consultation with one of our attorneys.

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.

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!

Bill Bootwright, Claims Consultant

It’s often been said, and with good reason, that the contributory negligence defense is “an insurance company’s dream” and plaintiff’s “worst nightmare.” Under the common law doctrine of contributory negligence, there is no comparison of fault between the wrongdoer and the injured person. If the injured person is even 1% at fault in a way that significantly contributes to cause the injury, the injured person loses. Technically, this prohibits an injured person from making a recovery from an accident claim even if the other person (the defendant) is 99% responsible for causing the accident.

For example, let’s say that the defendant was driving on a one-way road the wrong way, and the plaintiff, a pedestrian, was walking along the edge of the road when struck from behind by the defendant. The defendant’s insurance company could argue that the plaintiff was negligent for walking on the road. As a result — and conceivably without any real fault on the plaintiff — the insurance company may claim the plaintiff is contributorily negligent and thus barred from making any recovery, and refuse to pay voluntarily.

Any negligent act by the plaintiff is not enough to bar his claim; the act of negligence must be a “proximate cause” of the injury. The “proximate cause” test is whether the negligent act is a cause which, in natural and continuous sequence, produced the injury. In practical terms, it’s an act where the injury would not have occurred without the act, so that the act “caused” the injury. For instance, suppose a driver is traveling 5 miles per hour over the speed limit when another driver runs a stop sign and broadsides him. Clearly the negligent act of driving 5 miles too fast is not a “proximate cause” of the accident, because the accident would have happened anyway.

Only a very few states, including Virginia, have contributory negligence. Most states have some form of “comparative negligence,” where if an injured person is also negligent, then any recovery they receive is reduced by their share of fault. For instance, if an injured person is 1% at fault in causing their injury, then their recovery or award is reduced by 1%. In Virginia and the other contributory negligence sates, an injured person who is 1% at fault, and whose negligence is a proximate cause of their injury, receives nothing.

It has been my experience having worked both sides of the fence – for an insurance company and also for injured persons – for the last 39 years, if there is one piece of advice I would give to an injured person with a claim, it would be not to give a recorded or signed statement to an adjuster for the insurance company. An interview or a non-signed statement should be enough for the insurance company and at the same time will protect your rights should the insurance company attempt to deny your claim based on contributory negligence.

As a contributory negligence state, Virginia is a place where an injured person may need the advice of an attorney more than in comparative negligence states. An adjuster is a paid professional whose job is to make sure a claim costs the insurance company as little as possible. Usually that means for the injured person to get as little as possible. Contributory negligence is one way an adjuster may try to deny a claim. Sometimes just the way an injured person uses to describe the accident may help a smart adjuster to deny the claim.

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.

Attorney Elizabeth M. Allen

Author: Attorney Elizabeth Morrell Allen

You’ve been in an auto accident that wasn’t your fault. Within a few days, an adjuster for the insurance company of the guy who hit you calls on the telephone. The adjuster wants you to give a recorded statement telling her how the accident happened and also asks you to provide some personal information. She says she wants to help you, and you certainly need help. All she needs before she can pay you is a brief statement to “firm up liability”. She’s pleasant and seems so nice. You have nothing to hide, do you? And you want to be helpful. So what could be wrong with answering her questions on tape? Plenty!

As a general rule, you should not give a recorded statement concerning a motor vehicle accident to anyone without the advice of an attorney. You shouldn’t give an oral statement either. To understand why it is not in your best interest to make a statement, put yourself in the insurance company’s shoes. An insurance company is in business to make money for its shareholders. Every dollar it pays out in claims to people like you is a dollar lost to the insurance company’s bottom line. Therefore, job #1 for every insurance company employee is to reduce the amount paid out in claims, and that includes your claim.

To reduce claims paid, the insurance company must deny claims made. To do this, company employees will look for reasons to deny your claim. They may use your recorded statement for this purpose. How?

• Insurance company employees will compare the statement you gave them with other statements you have made, including statements you gave an investigating police officer or statements you made during your deposition in a lawsuit arising from the accident. Where they find inconsistencies in your multiple statements — and this is not unusual when someone tells the story of his accident more than once, sometimes weeks or months apart — the company will claim you lied. The company may deny your claim as a result.

• Insurance company employees will ask questions worded in such a way that they trap or trick you into responses that hurt your case. You may not even realize this is happening at the time. They may try to push or bully you into agreeing to facts you aren’t certain are completely accurate. You respond “I guess so” just to get the questioner off your back. Unfortunately, that “I guess so” can come back to haunt you later.

• Insurance company employees may lead you into making statements that you sound like you remember less than you really do. Before they even begin to record you, they may say things like “I guess it all happened really fast. It probably seemed like a blur. You probably were pretty shaken up afterwards. Makes it difficult to remember exactly what happened, doesn’t it?“ And then you may make statements that sound like you don’t really remember what happened.

• In a lawsuit, defense counsel can use your recorded statement to cross-examine you at trial or during your deposition. You may not remember exactly what you said in your statement. As a result, you may contradict yourself in some way. Although you think the discrepancy is inconsequential, the defendant’s lawyer will stress the importance of your misstatement to a jury and use it to convince the jury that your testimony is not believable.

The bottom line is that you should never give a recorded statement to an insurance company representative without the advice and guidance of an attorney. When you turn down the representative’s request, be courteous but firm. No matter how friendly and personable they may be when they’re talking to you, always keep in mind that they are employees of the insurance company and represent only its interests – not yours.

Editor’s Note: If by mistake you do give a recorded statement to the insurance company, you are entitled to a copy of it if you request it, under Virginia law. (Va. Code sec. 8.01-417).

About the Author: Elizabeth Morrell Allen has been engaged in the practice of personal injury law for over 30 years at the law firm Allen & Allen. From 1988 to 2004, Beth served as a branch manager of the firm’s Petersburg, Virginia office.

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.

Attorney Elizabeth M. Allen

How much automobile insurance should you buy?

The answer is easy: As much as you can afford.

The primary reason to buy automobile insurance, both liability and uninsured motorist (UM) coverage, is to protect you and your assets. Your insurance company will almost never pay more in damages, to you or to a person you negligently injure, than the dollar amount of the coverage you paid for, no matter how high a verdict there may be either against you or for you. Sound complicated? I’ll illustrate with two hypothetical examples, one involving liability insurance coverage and one involving underinsured motorist coverage.

Liability Coverage Example
Suppose you buy a policy with limits of $25,000/50,000 in auto liability insurance coverage.2 As a result, you would be personally responsible for payment of the remaining $50,000! The injured person would likely seek to recover this amount from your savings and other assets. This is a harsh result, I am sure you would agree, and one you would want to avoid.

What would happen if you had purchased a policy with higher limits of $100,000/$300,000? Since the verdict is less than your limit, your insurance company would pay the injured person the entire judgment amount of $75,000. Consequently, you would not be obligated to pay any part of the judgment yourself. To sum it up, the more insurance coverage you buy, the less likely it is that you will ever be called upon personally to pay any part of a legal judgment against you.

Underinsured Motorist Coverage (UIM) Example
Your purchase of high insurance limits can also help you or your family members when one or more of you are injured through the fault of another driver. This might occur if you and/or relatives who live with you sustain serious injuries in a motor vehicle accident, and the negligent driver who caused the accident has less insurance coverage than you do.

How does this work? Suppose you were in an auto accident that was someone else’s fault, and you were injured. Suppose your injuries and losses are serious, and your medical bills and lost wages are substantial. In your lawsuit against the driver at fault, a jury awards you $100,000 in damages. /Now suppose the driver at fault has purchased an auto insurance policy with $25,000/$50,000 limits, and you have an auto insurance policy that provides $100,000/$300,000 limits in UM/UIM coverage. The at-fault driver’s insurance company will pay you only $25,000, which is the maximum amount of liability coverage the defendant bought which can be paid to one person with respect to one accident. (When limits of insurance coverage are stated as “$25,000/$50,000, the first number is the maximum amount the insurance company will pay to any one person injured in an accident, and the second number is the maximum amount the insurance company will pay to all claimants in a single accident, regardless of how many injured persons there are).

However, you can look to your own UM/UIM coverage to see if there is underinsurance coverage (UIM) available to you. Under Virginia law, if the limit of the UM coverage available to you is greater than the limit of the at-fault driver’s liability coverage, then he is considered “underinsured” with respect to you and you will have underinsurance coverage on your own policy to give you extra coverage.3 The availability of underinsurance coverage depends on a comparison between a specific at-fault driver’s total liability coverage, and the total limit of UM coverage on the injured person. (Sometimes either the at-fault driver or the injured person may be able to add together or “stack” several insurance policies). In the example above, since the verdict is $100,000 and the at-fault driver only has $25,000 liability coverage, his insurance company would pay the first $25,000 of the verdict. Then your insurance company would pay you $75,000 under you UIM coverage, because that’s the amount by which your own UM motorist coverage exceeds the at-fault driver’s liability coverage limit of $25,000. By adding your $75,000 in underinsurance coverage to the defendant’s $25,000 liability limits, the entire $100,000 judgment you won in court would be paid in full.

Now suppose instead that you had only purchased an auto insurance policy with a $25,000/$50,000 limit in UM coverage. In the accident described above, your insurance company wouldn’t pay you anything because your UM insurance coverage of $25,000/$50,000 is not any higher than the at-fault driver’s own $25,000/$50,000 liability limits. Yes, you can still pursue the at-fault driver personally through collection after trial. However, the average at-fault driver has few assets and collecting on a judgment can be a long, expensive, and often futile endeavor. In the end, it is always better to carry high liability/UM insurance limits yourself and ensure that you and your own family are protected in the event one or more of you sustains severe injuries caused by the negligence of a driver with low automobile insurance coverage limits.4

2 When you see a figure like $25,000/$50,000 in relation to an auto policy, it means the limits are “split”, that is, one injured person can recover a maximum of $25,000 under the policy while $50,000 is the most coverage the insurance company will pay out to all injured persons regardless of the number of people injured in the same accident or how badly they may be injured.

3 In Virginia, you may be entitled to undersinsured motorist coverage under more than one policy, and these policies can sometimes be “stacked” to give you more coverage. Va. Code § 38.2-2206. This is a complex area of law, and it is wise to consult an attorney to explore whether there is underinsurance in your case.

4 In Virginia, you cannot buy UM coverage in an amount that is higher than your auto
liability insurance limits.

About the Author: Elizabeth Morrell Allen has been engaged in the practice of personal injury law for over 30 years at the law firm Allen & Allen. From 1988 to 2004, Beth served as a branch manager of the firm’s Petersburg, Virginia office.

Attorney Charles Littlepage Allen

By Attorney Charles L. Allen

“What is my case worth?” I am often asked this question by clients when I am first getting to know them. The simple answer is this; whatever a jury says it is worth.

Some people with personal injury claims are surprised to find out that they are not automatically entitled to a settlement from the insurance company. In fact, their only legal right is a trial to determine the amount of their recovery. The only way one can force an insurance company to pay is to successfully sue the person or company they insure. Cases involving very modest injuries are sometimes resolved by a judge in General District Court. However, more significant cases require Circuit Court trials which, in Virginia, allow for a jury of seven people to decide the case.

During the trial of a personal injury case in Circuit Court, a judge tells the jury what to consider when deciding the amount the injured person receives if the injured person wins. Typically, the jury is instructed to consider not only the injured person’s financial losses, which include medical expenses and lost earnings from time out of work, but also the injuries themselves and any pain and inconvenience they cause. I often explain to juries that inconvenience means how my client’s normal activities of daily living are limited or altered by the injuries. Many clients consider this to be their most significant loss, even greater than their medical expenses and lost wages.

Most personal injury cases I handle settle without a trial because I successfully negotiate with the insurance company to get a reasonable offer. However, the negotiations between the parties which ultimately lead to a settlement agreement are based upon what each side anticipates will happen at trial. Put another way, a settlement is fair if it is the same amount that a jury would award if it decided the case.

It may be no surprise that many people believe that successful trial lawyers who are experienced in the field of personal injury tend to get excellent settlements for their clients. There are three reasons for this. First, an experienced and knowledgeable trial attorney can develop the evidence in the case to make a persuasive presentation to the insurance company and, if necessary, to a jury. Second, an experienced trial attorney can reasonably predict what a jury might award, based on their experience with similar cases. Third, a successful trial lawyer has credibility with the insurance company with whom he or she negotiates because the insurance company probably will be aware of their “track record,” or reputation, for successfully handling personal injury cases in court.

Anyone with a personal injury claim should be aware that the insurance company with whom settlement negotiations will occur is a business. As such, the insurance company is looking out for its own financial best interests. An injured person who is not represented by an experienced trial attorney may be at a significant disadvantage trying to settle directly with the insurance company. The following example illustrates this point.

When I first began practicing personal injury law over 25 years ago, the trial attorney with whom I trained at this firm handled a case where our client hired us after first negotiating by himself with the insurance company in an unsuccessful attempt to settle his case. It was reported by this client that the insurance adjuster with whom he negotiated pronounced the claim was worth $6,000. However, this adjuster was willing to pay only $4,000 to settle, pointing out that if the injured claimant was represented by a lawyer he would have to pay a fee of one-third of the recovery to his attorney. Interestingly, this client never questioned or doubted the assertion by the insurance adjuster that his case was worth $6,000. What motivated the client to retain our firm was his desire to force the insurance company to pay the full $6,000 to settle his claim rather than only $4,000. Essentially, this client was prepared to receive $4,000 from his case and allow our law firm to take a $2,000 fee as long as the insurance company paid the entire $6,000 the adjuster acknowledged it owed. As it turns out, this case, in the hands of an experienced and skilled trial attorney, settled for $18,000 without a trial! Imagine how surprised our client was to receive nearly $12,000 from his case, after he had been led to believe by the insurance adjuster that his case was worth only $6,000. Why did this happen? Because both the insurance company adjuster and our trial lawyer knew and ultimately agreed the case would likely bring around $18,000 from a jury, and the insurance company knew our lawyer would file suit and take the case to trial unless they paid that amount to settle.

The lesson learned from this story is that an injured person’s best interests may not be fully protected unless they are represented by an experienced trial attorney. When an injured person is confronted with the choice of handling their claim themselves or retaining a lawyer to represent them, I suggest considering the example above. They should also ask themselves this question, “How can I possibly determine what my case is worth – and recover that amount – without the benefit of an experienced trial attorney?”

About the Author: Charles L. Allen is among the third generation of Allen family attorneys to have worked with the personal injury law firm Allen, Allen, Allen & Allen. Since joining the firm in 1983, Charles has had extensive experience handling various types of personal injury cases.

Attorney Kathleen Llewellyn-Duncan

By Attorney Kathleen Llewellyn-Duncan

Medical Expense coverage (sometimes known as Medical Payments) is an optional coverage available on Virginia Automobile Policies. This coverage covers all reasonable and necessary medical expenses for injuries resulting from a motor vehicle collision, or even arising out of the use of a motor vehicle. Medical Payments coverage covers anyone named on the policy (the “named insured”), a spouse, and any relative residing in the household. It also covers anyone occupying a vehicle on the policy. It will pay the medical expenses regardless of any other insurance and regardless of who is at fault. Medical Expense coverage covers medical expenses incurred within 3 years after the date of the collision or injury.

Although it’s an optional coverage because you don’t have to have it, by law Medical Payments coverage must be offered by your insurance company. Medical Payments coverage is usually offered in amounts like $1,000, $2,000, $5,000, and sometimes $10,000. Under Virginia law, you can “stack” the coverage up to a maximum of 4 vehicles on one policy. . For example, if you insure 3 cars and carry $1,000 Medical Payments coverage on each vehicle, you would “stack” the coverage if you are injured in an accident, so you really have a total of $3,000 limit for medical expenses.

Do you need Medical Expense coverage if you have health insurance?

If you have a good health insurance plan, it may not seem as critical to carry the coverage, but before you choose to drop it to save a little money, consider these questions: Does your health insurance plan have a deductible, co-pays, or co-insurance that would be out of pocket expenses? If your health plan is through your employer, how certain are you that you will remain with that employer? Does your health insurance pay for chiropractic treatment? Every year it seems like health insurance covers less, and the deductibles and co-pays get larger. Many people who have health insurance still find the Medical Expense coverage valuable in consideration of the medical costs that are not covered by health insurance. Keep in mind also that the most common way to suffer serious injury today is from a motor vehicle accident.

You may also want to consider whether or not you often have passengers in your vehicle. Remember Medical Payments coverage also extends to anyone in the vehicle who is injured in a motor vehicle collision. Typically passengers will be family or friends, and this will help cover them also.

Finally, consider this. Medical Expense coverage will “follow” you! If you are a passenger in another person’s vehicle that does not have this coverage, your own policy would apply. If they do have this coverage, normally your Medical Payments coverage will provide additional (excess) coverage if your medical expenses are higher than their limit of coverage. Also, if you are a pedestrian and you are injured by a motorist, your Medical Payments coverage would extend to you.

Premiums for Medical Expense coverage are generally low, so it’s inexpensive coverage to have. Typical rates are around $20 or less for $1,000 coverage, and, remember, you can “stack” that limit by the number of vehicles on the policy up to four. So, you should certainly consider carrying Medical Payments coverage to protect yourself and those who are in your vehicle. It’s good coverage to have and is relatively inexpensive. All the attorneys in our office have it!

This article is intended to give an overview of Medical Payments coverage on your family automobile insurance policy. Please note that there are a number of exceptions and conditions to Medical Payments coverage, and you should consult an attorney if you have any questions as to how this coverage may apply in a specific situation.

About the Author: Kathleen Llewellyn-Duncan is a personal injury attorney with the law firm of Allen & Allen. She works primarily in the Fredericksburg and Garrisonville offices.