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You’ve in in an Accident…Now What?

Being involved in an automobile accident can be a traumatic, painful, aggravating, and costly experience. In addition to your practical concerns over personal injuries to you, your companions, or another party, you have to worry about property damage, insurance estimates, automobile repairs, proper medical attention, possible traffic charges …. Perhaps a little foreknowledge about some of your rights and responsibilities can help make things a little less confusing and stressful.

In the first place, the driver of a car involved in any accident is obliged, to the extent practical, to immediately stop without obstructing traffic, render any necessary assistance to any injured party, and report his name, address, driver’s license, and vehicle registration to the appropriate police authorities and to the other driver, owner, occupant or injured party. This is also the time to exchange automobile liability insurance information with any other party. If the other vehicle is unattended, the driver must make a reasonable effort to report the accident to the owner, or at least to leave a conspicuous note with the necessary information at the scene and report the accident to the police within 24 hours. If your own injuries prevent you from doing this, you must make the required reports as soon as reasonably possible; if the driver fails to adhere to these requirements, each occupant is under a duty to do so in his place. The unjustified failure to live up to these obligations can result in suspension of one’s license; it can also be prosecuted as a felony in the case of bodily injury or a misdemeanor if only property damage was involved. See Virginia Code §§ 46.2-894 through 902.

The police officer reporting to the scene will question the parties involved in the accident and any eyewitnesses to determine whether anyone will be charged with a traffic offense. You are not required, and cannot be compelled against your will, to answer questions about the cause of the accident, your prior drug or alcohol use, etc., though you may choose to do so. You have the right to talk to an attorney before answering any questions. You can be asked by police to take a blood or breath test which may be used against you as evidence if it shows a high enough concentration of alcohol (0.10%) or other intoxicating substance in your blood; if you refuse to do so, no test will be taken, but your license may be suspended for six months for a first offense if your refusal is found to have been unreasonable (i.e. not justified by some important reason, such as a serious medical condition). See Virginia Code § 18.2-268.

The officer will issue a citation to any person(s) he believes committed a traffic infraction, and he may summon you or another eyewitness to appear in traffic court to testify as a witness against the party so charged. If you are charged, you have the right to go to court and to make the Commonwealth prove your guilt beyond a reasonable doubt. You have the right to have a lawyer represent you. You also are free to plead guilty, or “no contest”, and to offer any explanation or excuse you may have for the violation. The traffic court case, which is between the Commonwealth and the accused motorist, can result in a fine, demerit points on your license, or, in particularly serious circumstances like reckless or drunk driving, even the possibility of jail and/or license suspension. It should not be confused with, and technically, has no direct bearing on, any personal claim for damages which you may have against another party, or vice versa, for personal injuries or property damage caused in the accident. If you do admit the violation in traffic court, however, your plea can be used against you in a subsequent civil trial involving the same accident. If you contest the violation, on the other hand, then whether you are found guilty and receive a fine, or not guilty and the case is dismissed, that finding cannot be used in a civil action as evidence of your fault or innocence in causing the accident, though, as a practical matter, insurance companies will usually be strongly influenced in their position regarding fault in connection with a civil claim by the result of the traffic court case. Your automobile insurance company, to whom you should report any significant accident, will not represent you, nor can it give you proper legal advice, in the traffic court matter. If the accident is a serious one, or if you are uncertain what to do, we strongly urge you to seek the advice of your own attorney.

The first priority, of course, should be to get fast and proper medical attention for yourself or any other injured party. You may take advantage of any health or accident insurance which you own, through work or otherwise, to pay your bills promptly. You, or the driver or owner of your car, may also have “medical payments” coverage under your automobile insurance (check the policy to see if you have this optional coverage) which will repay you the cost of your medical bills (even if they have already been paid by health insurance). If another party was at fault in causing the accident, he (or his insurance company, or yours under your uninsured motorist coverage, if he is uninsured) will still be responsible to repay your bills, even if they were paid by insurance on your behalf. If the health or automobile insurance policy under which your bills are paid was issued in Virginia, you have the right to recover and keep payment of these medical expenses from all three sources, even though this might result in a double or triple recovery. See Virginia Code §§ 38.2-2209, 2211, 3405.

If another party was solely responsible (unfortunately, Virginia still adheres to the outmoded “contributory negligence” doctrine, wherein a claimant is totally barred from any recovery if he was even 1% at fault) for the accident by virtue of some traffic violation or the failure to exercise “ordinary care” (usually referred to as “negligence”), and thus for your injuries, you will be entitled to recover in a civil lawsuit reasonable compensation for your medical expenses, your loss of earnings (even if you received paid sick leave from your employer), any permanent loss of future earning capacity, your inconvenience, any past, present or future incapacitation caused by your injuries, and your physical and emotional pain and suffering. If your case actually goes to trial (only a small percentage of cases ultimately do), it will usually be necessary for one or more of your treating physicians to testify about the nature, scope and cause of your injuries, their probable duration, the reasonableness and necessity of any past or anticipated expenses for diagnosis, care and treatment, and the nature and extent of any past or future disabilities related to your injuries. Doctors generally charge a substantial sum (from $500, to $1,500, on up, depending on the amount of time spent and the complexity of the case) for such testimony. There might also be expenses for depositions of witnesses, costs of investigation, court costs, preparation of exhibits, etc. Like many law firms, we generally accept personal injury cases on the basis of a contingency fee, which means we get a fraction, normally 1/3, of the gross amount of any recovery we obtain on your behalf, whether through settlement or trial. If there is no recovery, there is no fee (the client is responsible for all reasonable and necessary expenses, however).

The first step in any personal injury case is the comprehensive client conference. We go over the facts of the case with you, we reach an agreement on fees and costs, we obtain the names and addresses of all witnesses, medical care providers, insurance companies, and we explain how we intend to approach your case. Then we continue our investigation, amassing records, data, photographs, witness statements, medical reports, etc. We wait until your physician is able to give us a comprehensive report on your injuries, including a reasonably certain prognosis of any likely future disabilities, treatments, and residual effects. Once that information is all collected, we prepare a comprehensive claim package which is submitted to the insurance company for the responsible party(ies). A process of negotiation begins, and, frequently, the case is settled without the need for litigation, if both sides can agree on a fair compromise. If not, we file an appropriate lawsuit, and prepare for trial. An action for personal injuries based on negligence must ordinarily be filed within two years of the accident. Virginia Code § 8.01-243A. No case can be built without your cooperation and participation; no settlement can be made without your approval.

If you have collision coverage, your insurance company will, if you choose, pay to repair your vehicle, minus your deductible, without regard to fault; if someone else was at fault, your insurer can then try to get the money, as well as your deductible, back from the responsible party’s liability insurance carrier. Your own policy may include towing and/or replacement vehicle rental car coverages, which might be subject to a fixed formula or maximum; you should keep in mind, however, that the party at fault (or her insurance company) will be liable for the full cost of such expenses, without regard to any policy limitations, so long as the expenses incurred are reasonable, and an insurer “arbitrarily” refusing to honor such a claim can be sued for $500, or twice the amount of your actual rental costs, whichever is greater. See Virginia Code § 8.01-66.

Most claims for property damage (e.g., repair or replacement of your car, clothes, etc.) are handled without an attorney because damages are easier to determine and prove and recoveries are modest, usually too small to warrant payment of significant legal fees (which in our American judicial system are generally not recoverable from the losing party). Many people take advantage of their own collision coverage anyway in order to keep things simple. You should be aware, however, that an insurance company (your own or a third party’s) which “arbitrarily” refuses to pay a valid claim of any kind of $1,000 or less (in excess of any deductible) can be compelled to pay additional damages equal to double the amount of the successful claim, plus your costs and attorneys’ fees. Virginia Code § 8.01-66.1. Your damages include not only the cost of repairs, which may be proved by affidavit from a qualified mechanic or estimator (Virginia Code § 8.01-416), but also a reasonable amount for the diminished resale value of your car once it has been involved in a collision (do not be taken in by the argument we sometimes hear that you get the cost of repairs, minus the amount by which your “depreciated” parts have been enhanced by replacement with new components; this is simply not the law in Virginia). An action for damage to property, including a parent’s claim for the expenses of caring for personal injuries of a child caused by negligence, must generally be filed within five years of the accident. Virginia Code § 8.01-243B.

Ordinarily, only the amount necessary to compensate an automobile accident victim for actual injuries or losses is recoverable. This can include certain relatively broad and undefined types of damages, including “pain and suffering,” inconvenience, and compensation for the loss or diminution of physical or mental abilities, but even these damages must bear some direct relationship to a provable, quantifiable injury.

Where a motorist has acted maliciously, or with reckless disregard for the safety of others, on the other hand, as perhaps, for example, in a case of drunk driving, a jury is permitted to award damages to the plaintiff beyond what is necessary to repay her for her losses in order to punish, or make an example of, the wrongdoer. These are called punitive or exemplary damages, and in a particularly serious case, they may be recovered. Negligence, or even gross carelessness, is not enough; only proof of deliberate or callously indifferent misconduct subjects a motorist to punitive damages. Even then, under Virginia law, the award of punitive damages must bear some reasonable relationship to the amount of actual damages sustained by the claimant.

If you do have the misfortune to be involved in a serious automobile accident, their can be many complex and often confusing legal consequences. It is very important to have a good general idea of your rights and responsibilities in such situations, but where the stakes are high, there is no substitute for sound, personal legal advice. Your insurance company is obliged to defend against and ultimately pay any damage claims made against you, and it is vital that you cooperate with the insurance adjuster and the defense attorney who may be designated to represent you. Through your insurance premiums, you have already paid for these benefits, and unless there is a claim which exceeds of your coverage, there is usually no need for you to pay extra for an attorney of your selection. If you are charged with a traffic offense, or in the event you have a claim of your own against someone else, your liability insurance coverage is not involved, and you must either represent yourself or retain the services of your own lawyer. In such a case, we strongly urge you to set up an appointment for a brief legal consultation, which can be done at modest, if any, cost, to get some professional advice on your options and liabilities.