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What to Do During and After an Auto Accident in Virginia

Tuesday, April 9th, 2024

Staying calm and keeping your wits about you during and after an auto accident in Virginia is no easy task. Accidents happen fast, and the events that unfold afterwards can happen just as fast. The situation can also be complicated by any number of additional factors: injuries, anxiety, and answering questions from numerous individuals.

There is no one-size-fits-all response that is appropriate in every auto accident. This is why it is vital to consult an experienced Virginia personal injury attorney as soon as possible, so you can get specific and tailored advice that takes into account the specific details of your circumstances.

There are some generalizations, however, that are true. Below are some tips and advice to aid you in confronting your accident and responding in the days and weeks that follow.

1. Control Your Vehicle

Proper response to an accident begins before the wheels stop spinning. Your first priority, greater than any consideration of liability or fault, is to survive the accident and minimize the chance you suffer significant injuries. When a collision occurs or is imminent, it is often the case that individuals simply freeze and stop driving the car. Never relinquish control of your vehicle. Do what you reasonably can to avoid the worst of the collision: take emergency action, and, if possible, navigate to safety entirely.

2. Assess the Situation

After the collision, monitor your surroundings and take appropriate action to prevent further accidents or injury. Can you safely move to the side of the road? Do you need to evacuate the passengers from the car and safely behind a guardrail? Can you place road flares or reflective triangles to warn oncoming motorists of the upcoming danger?

Further, you should assess your medical condition and that of your passengers or other individuals involved in the accident.

3. Call 911 or Appropriate Emergency Services

When safe to do so, call appropriate emergency services. Even if you feel that there are no injuries that warrant a trip to the emergency room, it still may a good idea to get checked out. It is better to be safe than sorry.

Responding police officers can help direct traffic in the area and ensure that you, your passengers, and other motorists on the road remain safe. Additionally, and especially if you aren’t at fault for the accident, having a neutral assessment of the manner and cause of the accident can help with later litigation. The responding officers may seek statements from the parties as well take photographs of the scene.

4. Carefully Consider Statements

When making statements, either to the police or to anyone else at the scene, carefully consider your words. While an accident and its immediate aftermath can be an extremely stressful time, it is important to try to calm yourself, get your wits about you, and avoid speaking from a place of hysteria or emotion.

It is extremely easy to make a statement that can be used against you later, especially when caught up in the emotion of the moment. Comments like “That guy came out of nowhere!” and “I didn’t even see her!” can be used to demonstrate that you failed to keep proper lookout. Also be careful with expressions of sympathy or apologies. While these statements on their own may not be an admission of guilt, these statements often accompany other statements that can be. For example, consider the statement “I am so sorry! I thought the way was clear!” The statement of sympathy may not be admissible against you, but your statement that you thought the way was clear likely would be.

Auto Accident

5. Document the Scene

While responding officers may document the scene, it is not a good idea to completely rely on them. If you are medically able and it is safe to do so, it is a good idea to document the scene. This could include taking pictures of the vehicles and the damage caused by the collision. It can also including taking video (but pay careful consideration to what you say on the video, that audio lasts forever).

It is also important to remember that the “scene” is more than just the location of the accident. Proving your medical condition and your injuries associated with the accident will be vital during future litigation. Remember to record your condition, via video, pictures, and written recordings of your condition and experiences. It is easy to forget important things, especially when they are unpleasant and you wish you had never experienced them in the first place.

6. Seek Medical Attention

Don’t be a hero. You are not a medical expert. If you feel pain, you have no clue what the source of that pain is. You do not know the severity of the injury that is precipitating that pain. You do not know if you will recover, given enough time, or if this is just the start of a lifetime of pain and discomfort.

Seek medical attention. Lots of people have “toughed it out” only to discover much later that they were more injured than they thought they were. First and foremost, this would mean that you have suffered more than you had too. You have experienced pain and discomfort that a trained professional might have alleviated. More than that, you may have prejudiced your personal injury case. If there is a large gap between the accident and your medical treatment, you can bet that this will be use against you later.

7. Notify Your Insurance

As soon as you are able after an accident, you should notify your insurance company. Many insurance contracts require you to notify the company of an incident within a reasonable time. If you fail to do so, you can waive your coverage for the accident. You should also make sure that you are given the other driver’s insurance information.

8. Seek a Qualified Personal Injury Attorney

Finally, seek the tailored advice of a qualified personal injury attorney. While it is never too soon to seek competent legal counsel, sometimes it can be too late. Virginia has a two year statute of limitations that is nearly absolute. If you miss this deadline, your case is dead. It doesn’t matter how good your case is. It doesn’t matter how injured you were. If you miss this statutory deadline, you may miss your opportunity to seek compensation for your losses.

Again, while this is not intended to be an exhaustive checklist of how to respond to an auto accident in Virginia (no such checklist could ever be exhaustive), following these tips can help you respond to what will, in all likelihood, be a difficult situation. Those injured in an auto accident in Virginia would be wise to consult with a Virginia personal injury attorney who is familiar with all of the pitfalls associated with litigating this type of case. Plaintiffs in Southwest Virginia would do well to hire a personal injury lawyer in Roanoke, Virginia. There is no need to go through this alone.

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The Legal Process: Stages of a Virginia Personal Injury Case

Tuesday, February 27th, 2024

Plaintiff personal injury clients are different than other types of clients because their Virginia personal injury case is generally their first interaction with the civil legal system. Clients sometimes have an expectation that the process moves fast. Television shows, like Suits and Law & Order, may be to blame for such an expectation. Unfortunately, this expectation is mistaken—the legal process is quite slow. It can take anywhere from weeks to several years to resolve a Virginia personal injury case. This can be especially difficult for a plaintiff who is the victim of a trucking collision, motor vehicle collision, slip-and-fall accident, defective product, or medical malpractice. These accidents can be life-altering, and plaintiffs not only feel the physical effects but also the emotional and financial effects. Virginia lawyers who understand and care about these effects on their clients tend to move cases to resolution more quickly.

This article is intended to walk you through the basic legal process of a Virginia personal injury case. Generally, a Virginia personal injury case consists of the following steps: (1) hiring counsel, (2) investigation, (3) pleading, (4) discovery, (5) motions, (6) trial, and (7) appeals. Settlement may occur during any of these stages.

Hiring Counsel

If you believe that you have a Virginia personal injury case, and you have not already done so, it is imperative that you immediately contact a Virginia personal injury attorney. At-fault parties and companies often act rapidly in response to an accident. For example, some trucking companies have “rapid response teams” that may arrive at the scene of a crash while first responders are still there. The sooner you contact a Virginia personal injury attorney, the sooner your attorney will be able to help you preserve all potentially relevant evidence to obtain the most amount of compensation possible. A skilled Virginia personal injury lawyer will begin working on your case as fast as possible by proceeding with the investigation phase.

Investigation

Once you have hired a Virginia personal injury lawyer, he or she will begin investigating and collecting the facts and circumstances of the trucking collision, motor vehicle collision, slip-and-fall accident, medical malpractice, product defect, etc. Gentry Locke personal injury lawyers will utilize their team, which consists of an in-house investigator, in-house nurses, paralegals, and legal assistants. The investigation phase often includes determining the potential at-fault parties, researching potential legal claims and the statute of limitations for your lawsuit, sending a preservation letter to the at-fault parties, sending Freedom of Information Act requests to governmental entities, and interviewing potential witnesses. If you have been involved in a motor vehicle or trucking collision, this phase also generally includes inspecting and photographing the scene of the crash and the vehicles involved in the crash. During the investigation phase, your Virginia personal injury lawyer should request, obtain, and review all of your relevant medical records and bills to determine the nature and severity of your accident-related injuries. Your lawyer should also request, obtain, and review all of your relevant employment records if you have missed work or lost wages due to the accident.

Pleading

After the investigation phase is complete, which may be only weeks after hiring counsel, but could take a year or more depending on the specific circumstances of your case, your lawyer will likely file a lawsuit on your behalf. Lawyers use the fancy legal term “pleading” to describe the stage when each side files their initial documents in the lawsuit. The first document filed in a case is called a “complaint,” which is filed by the plaintiff, and it details the facts and legal claims against the defendant. After filing the complaint, the plaintiff’s lawyer will have a time period to serve the complaint on the defendant, which may be up to a year in state court. After service, the defendant will then have 21 days to file a responsive pleading. Responsive pleadings can take many forms, but most often the defendant files what is called an “answer,” which admits or denies the allegations in the complaint and asserts any affirmative defenses. The pleading stage may consist of hearings if the defendant files a responsive pleading asking the case to be dismissed or asking for additional information.

Discovery

“Discovery” denotes the process in which the parties exchange information that may be related to the lawsuit. Discovery occurs during and after the pleading stage. Like responsive pleadings, discovery can take many forms: depositions, interrogatories, requests for the production of documents, requests for admission, inspections, mental or physical examinations, etc.

A deposition is where a potential witness answers questions under oath before a court reporter, who produces a transcript that can be used for certain purposes at trial. Your lawyer will meet with you and prepare you for your deposition, and your lawyer may take depositions of eyewitnesses, law enforcement officers, the defendant, your health care providers, and any experts designated by the defendant. Interrogatories are specific written questions asking the other side to answer such questions in writing and under oath. Requests for the production of documents ask the other side to produce documents that may be potentially relevant to the lawsuit, while requests for admission ask the other side to admit to certain propositions.

Injured Hand

The discovery process is aptly named because it is a process whereby parties “discover” much more about the case. Discovery can reveal additional misconduct by the defendant or reveal additional parties that may be at fault. If done correctly, discovery shows the parties the strengths and weaknesses of their positions. 

Motions

“Motion” is a broad term that describes a request by a party’s lawyer that the court take some specific action. Motions may be an oral request, but they are often in writing and filed with the court. Motions are filed throughout the litigation process, and they may be filed during the pleading and discovery stages. Motions ask the court to take actions such as: dismiss the case, exclude certain evidence from trial, strike expert testimony, give a party additional time to do something, continue the trial, etc. Contested motions generally result in briefing and a hearing. “Briefing” is a process where both sides research the facts and law and file detailed documents (briefs) with the court that describe why they should win the motion. The court may hold a virtual or in-person hearing to hear oral arguments from the attorneys before making its decision. Once the court reaches its decision on the motion, the court will issue an order that announces the decision.

Trial

Trial is the process that you likely know the most. This is the part of a Virginia personal injury case that you have likely seen on television. This is where the parties, lawyers, and witnesses appear in court so that a judge or jury can decide the case. In Virginia circuit court and in federal court, the parties generally request a jury to decide the case. In Virginia general district court, which is a court for smaller personal injury claims, a judge will decide the case.

A Virginia jury trial generally consists of the following steps: (1) a pre-trial motions hearing, (2) jury selection, (3) opening statements, (4) the plaintiff presents his or her witnesses and evidence, (5) the defendant presents his or her witnesses and evidence, (6) closing arguments, and (7) jury deliberation. During the presentation of evidence, each side will have an opportunity to cross-examine or ask questions of the other side’s witnesses. The trial will end by the judge announcing the verdict and entering an order for the prevailing party. After the trial, the losing party may make post-trial motions to reduce or set aside the jury’s verdict.

Appeals

Appeals commonly occur after a trial has taken place, but generally speaking, they may occur at any point where the court enters a final order disposing of the case. This means that if the court sustains (grants) a motion to dismiss in its entirety, then there may be an appeal before trial. In narrow circumstances, an appeal may occur before the court enters a final order. Either party may appeal a court’s final decision. Sometimes there is an automatic right to appeal to the higher court, and sometimes the higher court has discretion to accept or deny the appeal. It is important to note that except for an appeal from the Virginia General District Court to the Virginia Circuit Court, an appeal does not consist of repeating the initial trial. Appeals are limited to very specific legal issues, such as whether the trial judge incorrectly admitted or excluded certain evidence at trial.

The Virginia appellate process is complicated and it requires specific expertise. If you have a case that you think should be appealed or has been appealed by the other side, contact our Virginia appellate attorneys today.

Court Building

Settlement

Although Gentry Locke lawyers prepare for trial from day one, the reality of today’s world is that many cases settle before trial. Settlement can occur during any one of the steps outlined above. A case may settle through negotiations between counsel or it may settle through a process called mediation. Settlement negotiations are usually initiated by the plaintiff’s attorney, who will send a demand package containing supporting evidence to the defendant or insurance company. Mediation is where a third-party neutral (a mediator), usually a judge or retired judge, facilitates settlement discussions between the parties. During mediation, the mediator advises both sides of the risks of their positions and assists the parties in reaching a voluntary resolution. 

Cases settle for three main reasons: (1) risk, (2) cost, and (3) delay. A jury trial can be risky to both sides, especially given that a random selection of citizens has the power to decide the merits of the case. A jury may award a verdict far in excess of what the defendant expects, but a jury may also find that defendant was not liable (responsible), which leaves the injured plaintiff with nothing. Additionally, jury trials are expensive. In personal injury cases, expert medical testimony is generally required, and doctors can costs hundreds or even thousands of dollars per hour to prepare their reports and give their testimony. Finally, Virginia courts have busy dockets, meaning a jury trial may be scheduled for a year or more after the lawsuit is filed. Defendants frequently try to avoid or delay trial by filing a motion to continue, hoping to wear down the plaintiff to settle. These factors, and others, lead clients to settlement. This is another reason why hiring the right attorney is a crucial decision—our Virginia personal injury attorneys are trial lawyers who can advise you as to the specific risks associated with your case and assess whether negotiation, mediation, or trial is appropriate for your case.

Please note that every case is different and the specific steps of your case may differ depending on the status of your health, and the approach adopted by your Virginia personal injury lawyer. Some cases demand speedy resolution, while other cases may call for a wait-and-see approach, especially if the plaintiff is still treating for their accident-related injuries. Contact Us today so one of our Virginia personal injury attorneys can advise you as to the approach that is suitable for your case. 

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“The Driver Who Crashed into Me Is High”: How Defendant’s Marijuana Use Can Impact Your Virginia Motor Vehicle Personal Injury Case

Wednesday, January 10th, 2024

Virginia has recently decriminalized the possession of four (4) ounces or less of marijuana.[1]   Police in Virginia can no longer “stop, search, or seize any person, place, or thing” based “solely” on “the odor marijuana.”[2]  Virginians now frequently encounter the distinctive “skunk-like” odor of marijuana in public places.  Alarmingly, Virginians also encounter that odor, sometimes accompanied by visible smoke, emanating from vehicles operating on public roadways.   This is so even though it remains a crime for any person—driver or passenger—to use marijuana “in a motor vehicle being driven upon a public highway of the Commonwealth.”[3]  Gentry Locke’s personal injury attorneys have seen cases rise regarding this ongoing issue and can help you navigate through what’s next.

The Situation at Hand

Imagine that you are driving home after working a second shift in your hometown.  You have a green light as you approach an intersection.  It is just past midnight and traffic is nonexistent.  As you proceed through the intersection you are hit broadside (“t-boned”) on the driver’s side by another vehicle which you know had run their red light.  The driver comes up to you while you are trapped in the driver’s seat, the crumpled door crushing your injured body.  You smell what you believe is the odor of marijuana.  When you ask the driver if they had been smoking  marijuana, the driver responds, “Yeah. So what?  It’s not illegal,” then falsely accuses you, “Why did you run the red light?”   A police cruiser arrives moments later.  You call out to the officer that you are injured and trapped.  The other driver hurries over to try and tell the officer their side of the story first.  The officer brushes past the other driver to get to you to check on your injuries.  You blurt out: “The driver who crashed into me is high.  They admitted it.  They ran the red light.”

With no eyewitnesses, no vehicle dashcams, and no mounted traffic cameras, your motor vehicle crash could descend into a contest of one driver’s word against the other’s.  But, like you, when the officer returns to the other driver he smells the odor of marijuana.  The other driver has bloodshot eyes, fumbles around when asked for license and registration, and is slow to answer simple questions.  These observations, combined with your statements and the fact of the accident itself, gives the officer reasonable articulable suspicion to conduct a field sobriety test on the other driver, which the driver fails.[4]  When the officer arrests the other driver for driving while intoxicated (DWI), the driver states: “You can’t do that.  I’m not drunk and I haven’t taken any illegal drugs.”  The officer responds, quoting the Virginia DWI statute:  “Sure I can.  It is unlawful in Virginia for a driver to operate a motor vehicle while ͑ under the influence … of any … self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle  … safely.̕ ”[5]  Toxicology on the post-arrest blood draw confirms the presence of THC, the active substance primarily responsible for marijuana’s mental effects.[6]

Where We Can Help

While you are recovering from your injuries, you reach out to the plaintiff’s personal injury attorneys at Gentry Locke about filing a civil lawsuit against the other driver.  You ask, “Does it make a difference that the other driver was high?”  We tell you, “It certainly does. And here’s why.”

First, in your lawsuit, you must prove that the other driver was negligent.  Negligence is the failure to use “ordinary care,” which “is the care a reasonable person would have used under the circumstances of this case.”[7]  A driver “facing a steady red traffic light has the duty to stop and remain stopped so long as the light is red and thereafter not proceed until it is safe to do so in the exercise or ordinary care.”[8]  The failure to stop at a red light and not proceed thereafter until it is safe to do is negligent.[9]  We explain that we will retain an expert forensic toxicologist to testify regarding the significance of the toxicology findings of the other driver’s THC level and about marijuana’s status as a “perception altering drug” that affects “spatial awareness” and can slow the user’s reactions and movements.[10]  This evidence will make the other driver’s account of their actions, and who had the red light, hard for the jury to believe.

Virginia Personal Injury Attorney

Second, we tell you that the other driver’s DWI from marijuana use may give rise to a punitive damages claim under Virginia law. Where punitive damages are recoverable, you may be awarded up to $350,000.00 in punitive damages by the jury.[11]  Punitive damages may be awarded in addition to “compensatory damages” aimed at making you whole for your bodily injuries, any disfigurement, medical expenses, lost earnings/reduced earning capacity, pain, suffering, and inconvenience.[12]  A claim for punitive damages against a driver who was DWI from marijuana “must be supported by factual allegations sufficient to establish the defendant’s conduct was willful or wanton.”[13]  Where a defendant is DWI from alcohol (rather than marijuana or other drugs), the defendant’s conduct shall be deemed sufficiently willful and wanton to warrant punitive damages if the defendant’s blood alcohol concentration (BAC) is 0.15 or higher at the time of the crash and the defendant knew or should have known while drinking that their ability to drive a motor vehicle would be impaired.[14]

To recover punitive damages from a defendant who is DWI from marijuana, however, you will have to prove the defendant’s willful and wanton negligence—that is, “action undertaken in conscious disregard of another’s rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.”[15]  One example of conduct egregious enough to support punitive damages is an intoxicated driver’s continuing to drive the wrong way down a highway after oncoming traffic has blown their horn and flashed their headlights to alert the driver.[16]  But there are plenty of other ways to prove a defendant acted with conscious disregard for others.  Ultimately, the question of whether a defendant acted with knowledge “that his conduct probably would cause injury to another” will always depend on the specific facts developed. That is why which personal injury lawyer you choose to represent you is so important.  We have a team of experienced attorneys at Gentry Locke who have successfully navigated Virginia personal injury law issues before.  

If you have been seriously injured, or a family member has been seriously injured or killed, in a Virginia motor vehicle collision due to the negligence of another driver (regardless of whether you suspect intoxication), please Contact Us or call 540.983.9300. Our initial consultation is always free and confidential. 

[1] See Va. Code § 4.1-1100.
[2] Va. Code § 4.1-1302(A).
[3] Va. Code § 4.1-1107(B).
[4] See, e.g., Bryant v. Commonwealth, 2022 Va. App. LEXIS 569 (Ct. of Appeals Nov. 9, 2022) (unpublished).
[5] Va. Code § 18.2-266(iii).
[6] Marijuana (dea.gov), accessed 9/13/23.
[7] Va. Model Jury Instr. – Civil, Instr. No. 4.000.
[8] Va. Model Jury Instr. – Civil, Instr. No. 10.262.
[9] Va. Model Jury Instr. – Civil, Instr. No. 10.262.  To prevail, you also must prove that the other driver’s negligence was a proximate cause of the accident and the amount of your damages resulting from the accident.  Va. Model Jury Instr. – Civil, Instr. No. 3.000.
[10] Bryant, 2022 Va. App. LEXIS 569, at *4-*5.
[11] Va. Code § 8.01-38.1.
[12] Va. Model Jury Instr. – Civil, Instr. No. 9.000.
[13] Woods v. Mendes, 265 Va. 68, 76 (2003).
[14] Va. Code § 8.01-44.5.
[15] Woods, 265 Va. at 76-77.
[16] Booth v. Robertson, 236 Va. 269, 270-72 (1988).

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Categories of Damages in Virginia Personal Injury Cases

Monday, December 18th, 2023

As Virginia personal injury attorneys, our clients often ask us questions such as: What can I sue for after a car accident in Virginia? Is the defendant liable for the full amount of my medical bills? Does the defendant have to reimburse me for the time I was out of work? What about pain and suffering? Who pays for my vehicle that was totaled? Can I sue for punitive damages? This article is written by a personal injury lawyer in Roanoke who can summarize the categories of damages that are generally available to plaintiffs in Virginia personal injury cases.

The following categories of damages are available in a Virginia personal injury cases: (1) past medical expenses, (2) future medical expenses, (3) pain and suffering, (4) inconvenience, (5) disfigurement and any associated humiliation or embarrassment, (6) lost wages, (7) loss of future earning capacity, (8) property damages, (9) punitive damages for willful and wanton conduct, and (10) prejudgment and post-judgment interest.[1]

1. Past Medical Expenses

Past medical expenses are calculated by adding up the total gross amount of past medical bills that are directly and proximately caused by the defendant’s negligence. These could be urgent care bills, physician bills, hospital bills, physical therapy bills, chiropractor bills, counseling bills, pharmacy bills, durable medical equipment (DME) bills, etc.

Under Virginia’s collateral source rule, a personal injury plaintiff is entitled to full compensation from the defendant, and the jury is not allowed to consider compensation that the tort victim receives from a source collateral to the wrongdoer.[2] This means that a Virginia court or jury is not permitted to consider whether the plaintiff had health insurance to help pay his or her medical expenses following an accident.[3] Instead, the court or jury will look at the total amount that the health care provider charged the plaintiff for the treatment, regardless of any health insurance or contractual write-offs.

Often, an insurance adjuster or defense attorney will argue that at least some of the plaintiff’s past medical bills are unrelated to the accident, especially where the plaintiff is claiming aggravation of a pre-existing injury. Determining which past medical bills were caused by the defendant’s negligence or other tortious act can be difficult where the plaintiff has pre-existing injuries, was regularly receiving treatment from the same provider before the accident, or has been involved in multiple accidents. It is also tricky to calculate past medical bills when dealing with an injury such as post-traumatic stress disorder (PTSD) where the plaintiff initially receives counseling after the accident, but then later personal issues unrelated to the accident predominate in the counseling sessions.

Calculating the total amount of related past medical bills is a critical part of a Virginia personal injury case because insurance companies and defense attorneys focus heavily on “special damages,” or damages that can be easily calculated, such as past medical bills and lost wages. If you claim that too many of your past medical bills are related to the accident, then the insurance company may not take your settlement demand seriously, which may lead to years of litigation. If you do not claim enough of your past medical bills, then the insurance company may not offer you a fair settlement amount. This is one reason it is important to hire an attorney that specializes in Virginia personal injury cases.

2. Future Medical Expenses

At trial, future medical expenses are proven using expert medical testimony from either a treating or consulting physician. In Virginia, only a medical doctor, physician assistant, or nurse practitioner can testify as to the diagnosis and cause of a human physical injury.[4] Furthermore, the doctor’s opinion will only be admissible if it is stated to a reasonable degree of medical probability.[5] For example, a doctor may testify that it is more likely than not that the plaintiff will need a spinal fusion surgery in the next 10 to 15 years due to a spinal injury suffered in the accident.

Generally, the expert medical testimony is accompanied by a life care plan, which is a report that outlines the estimated costs of the future medical treatment. Life care plans are prepared by expert witnesses, usually registered nurses, who have specialized knowledge regarding the costs of future medical care, such as doctor visits, surgeries, physical therapy, specialist visits, attendant care, nurse case management, etc. Thus, the plaintiff can prove his approximate future medical expenses based on a combination of expert medical testimony regarding the care he will need and expert testimony regarding the costs of such care.

Categories of Damages in Virginia PI Cases Picture 1

3. Pain & Suffering

Pain and suffering damages are a significant part of almost every personal injury case because physical pain and mental anguish necessarily flow from a bodily injury.[6] It is extremely difficult to calculate pain and suffering damages because pain and suffering varies on a case-by-case basis. More importantly, because this category of damages will be left up to the judge or jury to decide, it is virtually impossible to predict the value the factfinder will assign to pain and suffering. Although Virginia personal injury attorneys may ask the judge or jury to award a specific amount for pain and suffering, attorneys must weigh the risks and benefits of doing so. If the plaintiff’s attorney asks for a high amount, then it may create the appearance of greed, which may diminish the credibility of the plaintiff’s evidence and lead to a lower award. If the plaintiff’s attorney asks for a low amount, then the plaintiff may walk away with a favorable verdict, but unfair compensation.

Due to the imprecise science of attempting to predict what a judge or jury may award in a particular case, insurance companies or defense attorneys may use a multiplier to assign value to pain and suffering damages, such as two to three times the total amount of the plaintiff’s special damages. This method can be arbitrary because a plaintiff may not have many medical bills due to conservative treatment, but have a permanent injury that causes significant limitations with activities of daily living. On the other hand, a plaintiff may have a tremendous amount of related medical bills, but be completely healed. Additionally, a multiplier fails to consider what a jury may award for pain and suffering, and it does not take into consideration a defendant or insurance company’s potential exposure if the case goes to trial. Due to the arbitrary nature of multipliers, it is important to hire a Virginia personal injury attorney that is willing to take your case to trial.

4. Inconvenience

Like pain and suffering, inconvenience is a category of damages that is difficult to calculate. Inconvenience includes compensation for things such as missed time playing with your kids due to your injuries, unnecessary time spent at doctor’s offices in an effort to treat your injuries, or mental or physical limitations that prohibit you from enjoying things that you were able to do before the accident. In Virginia, a plaintiff is entitled to compensation for both past and future inconvenience caused by the defendant’s tortious conduct.

5. Disfigurement & Humiliation

Again, disfigurement is a category of damages that is hard to calculate. This category includes compensation for scarring from surgeries caused by the accident, loss of a limb, etc. The model jury instructions recognize that the humiliation and embarrassment are often associated with a disfigurement or deformity. For example, it is embarrassing for the teenager hit by a drunk a driver to use crutches at his or her high school prom. It is humiliating for someone who has lost a limb due to the defendant’s negligence to constantly be stared at by others and asked what happened.

6. Lost Wages

Lost wages is compensation for money that the plaintiff has lost prior to trial due to his inability to work from his accident-related disability. However, lost wages are not calculated by determining the actual amount of money that the plaintiff has lost due to the accident. Instead, certain rules apply. First, lost wages are based on gross income, not net income.[7] Second, due to the collateral source rule, a plaintiff is entitled to lost wages during the period disability, even if the employer decided to continue paying the wages during that time.[8] Generally, a plaintiff proves lost wages by introducing expert medical testimony regarding the plaintiff’s past inability to work due to the accident along with evidence of the plaintiff’s work schedule and gross income prior to the accident.

7. Loss of Earning Capacity

Loss of earning capacity is compensation for money that the plaintiff will lose after trial due to his inability to work from his accident-related disability. Generally, a plaintiff proves loss of earning capacity by introducing expert medical testimony regarding the plaintiff’s future inability to work due to the accident along with evidence of the plaintiff’s past job history, qualifications, education, experience, training, and work schedule.[9]

8. Property Damages

Property damages are also recoverable in a typical personal injury case, especially those involving motor vehicles. This means that in a motor vehicle collision or trucking case, a personal injury plaintiff may sue for the damage that the defendant caused to their vehicle. Property damages are calculated by “the difference in value of the property immediately before and immediately after the accident plus the necessary and reasonable expenses incurred by the plaintiff as a result of the damage to the property.”[10]

Categories of Damages in Virginia PI Cases Picture 2

Property damage claims are usually settled prior to trial because there is less room for argument regarding the value of damaged property. Litigation can take years, and plaintiffs often prefer to resolve these claims quickly so they can purchase a replacement vehicle or repair the damaged vehicle and get it back on the road.

9. Punitive Damages

Punitive damages are available where the defendant “acted with actual malice toward the plaintiff or acted under circumstances amounting to a willful and wanton disregard of the plaintiff’s rights.”[11] The Supreme Court of Virginia has stated:

In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.[12]

The purposes of punitive damages are to punish the wrongdoer, protect the public, and provide an example and warning to deter others from engaging in similar conduct.[13] The Supreme Court of Virginia generally disfavors punitive damages and has stated that such damages “should be awarded only in cases involving the most egregious conduct.”[14] This means punitive damages are not available in run-of-the-mill Virginia personal injury cases, but they may be available if the defendant’s conduct is particularly egregious.

Virginia law limits the total amount of punitive damages to $350,000.[15] The jury will not be informed of the limit on punitive damages, but if the jury returns an award of higher than $350,000, then the judge will reduce the award to $350,000.[16]

10. Interest

A plaintiff may also recover prejudgment and post-judgment interest on the court’s judgment. In its discretion, the trier of fact may award prejudgment interest and determine the time at which the interest shall begin.[17] Typically, plaintiffs sue for prejudgment interest from the day of the accident, but the factfinder is not required to award prejudgment interest from that date. A plaintiff is also entitled to post-judgment interest at the statutory rate, which is currently six percent, until the judgment is paid in full.[18]

Causation

It is important to note that a Virginia personal injury plaintiff may only recover the above damages if the evidence at trial is sufficient to show that the defendant’s negligence or other tortious act directly and proximately caused the plaintiff’s injuries. As stated above, medical testimony is almost always required to prove the element of causation because only a medical doctor, physician assistant, or nurse practitioner can testify as to the cause of a human physical injury.[19] However, if the case is in general district court, where there is no jury and the plaintiff’s recovery is limited to a maximum of $50,000,[20] then the medical records or a medical report can be introduced as evidence to prove causation.[21] Additionally, in circuit court, the judge will not instruct the jury on every category of damages, unless the evidence is sufficient to support every category of damages. For example, if the plaintiff lacks expert medical testimony as to his or her future medical treatment and costs, then the judge may not instruct the jury regarding the category of future medical expenses.

Conclusion

There are many categories of damages that may be available in a personal injury law Virginia case. However, not every category of damages is available in every case. The categories of damages available in your case will depend on the specific facts and circumstances. Many of the categories of damages, such as pain and suffering, inconvenience, and disfigurement, are not easy to calculate and judges and juries have wide latitude in determining a fair amount. Other categories, such as future medical expenses and loss of earning capacity, rely on credible expert medical testimony. This is why hiring a Virginia personal injury attorney from a personal injury law firm who is willing to take your case to trial can make a huge difference in the amount of compensation you receive after an accident.  Our personal injury lawyers are dedicated to advocating for individuals who have suffered personal injuries, and we are committed to pursuing the maximum compensation possible for our clients. Contact Us to speak with a personal injury attorney.

[1] See Va. Civ. Model Jury Instruction No. 9.000.
[2] See id.
[3] See id.
[4] See John v. Im, 263 Va. 315, 321 (2002); Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496 (1998); Bean v. Dawson, 103 Va. Cir. 136. 138 (Campbell Cnty. 2019); McCarthy v. Atwood, 67 Va. Cir. 237, 246-47 (Portsmouth 2005); Va. Code Ann. § 8.01-401.2(B).
[5] See Spruill v. Commonwealth, 221 Va. 475, 479 (1980); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 536 (1995).
[6] Bruce v. Madden, 208 Va. 636, 639-40 (1968).
[7] Hoge v. Anderson, 200 Va. 364, 367-68 (1958).
[8] See Bullard v. Alfonso, 267 Va. 743, 749 (2004).
[9] See Bailey v. Henderson, 240 Va. 1, 3-4 (1990) (holding that evidence was sufficient to support a jury instruction regarding loss of earning capacity).
[10] Va. Civ. Model Jury Instruction No. 9.050.
[11] Va. Civ. Model Jury Instruction No. 9.080; see also Booth v. Robertson, 236 Va. 269, 273 (1988).
[12] Infant C. v. Boy Scouts of America, 239 Va. 572, 581 (1990).
[13] Allstate Ins. Co. v. Wade, 265 Va. 383, 391-92 (2003).
[14] Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992).
[15] Va. Code Ann. § 8.01-38.1.
[16] Id.
[17] See Va. Code Ann. § 8.01-382.
[18] See id.; Va. Code Ann. § 6.2-302.
[19] See John v. Im, 263 Va. 315, 321 (2002); Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496 (1998); Bean v. Dawson, 103 Va. Cir. 136. 138 (Campbell Cnty. 2019); McCarthy v. Atwood, 67 Va. Cir. 237, 246-47 (Portsmouth 2005); Va. Code Ann. § 8.01-401.2(B).
[20] See Va. Code Ann. § 16.1-77(1).
[21] See Va. Code Ann. § 16.1-88.2

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