Automobile Accidents

February 24, 2021

Important Exceptions to the Virginia Contributory Negligence Rule

When it comes to determining whether an injured person can pursue a Virginia personal injury claim after an accident, Virginia relies on the doctrine of contributory negligence. Contributory negligence is a harsh rule, that prohibits any injured person from bringing a claim against any other at-fault party, if the accident victim shares any blame for causing the accident. Thus, if a motorist is found to be only five percent at fault for a car accident, they could not file a Virginia car accident lawsuit against the other driver who was 95 percent responsible.

Clearly, the contributory negligence rule can lead to some very unfair results. And despite years of efforts from personal injury attorneys and some politicians, state lawmakers refuse to adjust the doctrine. Notably, Virginia is one of only a few states that still use contributory negligence. Most other states rely on a doctrine called comparative fault, in which an at-fault accident victim can still recover for their injuries, but will only recover a reduced amount. Specifically, the accident victim’s damages award is reduced by their own percentage of fault.

However, there is a very important exception to Virginia’s contributory negligence rule in accidents involving common carriers. A common carrier is an individual or business that transports people for a fee. For example, buses, taxis, and Uber and Lyft drivers are all common carriers.

January 20, 2021

Biased Expert Testimony in Virginia Personal Injury Claims

by Sidney Schupak, Esq.

In some Virginia personal injury lawsuits, testimony from experts may be necessary to lend further credibility to the argument that a party is making, but also to provide more context to the facts of a particular case. Sometimes, however, experts are retained repeatedly and may have previous, longstanding relationships with insurance companies or attorneys. The potential for bias for these experts can be high because of these relationships, and evidence of that bias may be crucial for a party to establish when arguing against or working to discredit the expert’s testimony.

In a recent Virginia Supreme Court opinion, the court considered whether evidence of an expert’s previous relationship with an insurance company and potential bias could be introduced in court. The plaintiff was driving when she was hit from behind by the defendant. Following the accident, the plaintiff experienced back, hip, and neck pain and increased depression and anxiety. The plaintiff sought medical care and physical therapy that cost more than $26,000 and sued the defendant seeking $150,000 in damages. The defendant’s representation retained an orthopedic surgeon to serve as a witness, who opined that the car accident only caused minor injuries to the plaintiff and that much of the pain she experienced was the result of conditions that were present before the accident. He also argued that her medical expenses should only be around $3000.

During depositions prior to trial, it was discovered that the surgeon had been retained by the defendant’s attorney more than 30 times over the last decade, but not by the defendant’s insurance company directly. However, the surgeon had done work with the insurance company before this case through the defendant’s attorney and had been compensated by the insurance company for his expert testimony. Before trial, the plaintiff moved to introduce evidence showing the surgeon’s previous relationship with the defendant’s attorney and her auto insurance company. The court allowed the plaintiff to introduce evidence that the surgeon had testified on behalf of the defendant’s attorney’s clients in the past but barred her from discussing his previous work for the defendant’s insurance company because there was no direct relationship between the surgeon and the company.

December 23, 2020

Court Addresses Nexus Requirement in Virginia Uninsured Motorist Claim

by Sidney Schupak, Esq.

The Supreme Court of Virginia recently issued an opinion addressing the nexus requirement for injuries a victim suffered on a school bus. The case arose after a special needs child suffered abuse while riding a school bus. The victim, who was ten years old at the time of the incident, has autism and cannot communicate verbally. The bus driver and aide were aware of the boy’s special needs and used a harness to secure him into his seat. While the boy was strapped to his seat, two other children repeatedly beat the boy, slapped his head, choked him, and sprayed chemicals in his face. The victim’s mother filed a claim under her uninsured motorist coverage, for damages the boy suffered due to the attack. The insurance company argued that the policy did not cover this situation because no nexus existed between the boy’s injuries and the school bus’s use as a means of transportation.

In Virginia, when courts analyze the application of an insurance policy coverage concerning the “ownership, maintenance, or use” of a vehicle, they place significant consideration on the intention of the parties to the agreement. Under the law, “ownership, maintenance, or use” should be evaluated under the terms’ ordinary meaning. The primary inquiry is whether there is a causal relationship between the incident and the use of the vehicle, as a vehicle. Although, the vehicle’s use does not need to be the actual or proximate cause of the injury, there should be a causal connection. In other words, for coverage to apply, the use of the vehicle cannot be incidental or tangential. Courts look to what the victim was doing when he suffered injuries, and what role the vehicle played in the incident.

In this case, the court found that his mother’s uninsured motorist provision did not cover the victim’s injuries. The insurance company’s provision provides that the company pay damages for bodily injuries that “arise out of the ownership, maintenance, or use” of the uninsured vehicle. Here, the court reasoned that the assailants abused the boy on the bus; however, the bus was used as a means of transportation. Further, the physical abuse the boy suffered was not typically contemplated by the policyholders to a car insurance policy. Therefore, because the conduct was “foreign” to the school bus’s purposes, the court found no nexus existed.

January 14, 2019

Employer Liability in Virginia Motor Vehicle Accidents

by Sidney Schupak, Esq.

After a Virginia motor vehicle accident, those who were injured in the collision can pursue a claim for compensation against the parties whom they believe were responsible for causing the accident. In almost all cases, Virginia car accident lawsuits are filed against another motorist and are defended by the motorist’s insurance company. However, Virginia accident victims should not assume that the only liable party is the other driver; it may be that the driver’s employer is also responsible for any injuries.

Under the doctrine of respondeat superior, a Virginia accident victim can pursue a claim for compensation against a negligent motorist’s employer. To establish such a claim, a plaintiff must show that 1.) there was a “master and servant” relationship between the motorist and the employer, 2.) that the employee was acting within the scope of his employment at the time of the accident, and 3.) the employee was in the process of carrying out his employer’s business. A recent state appellate decision illustrates the type of scenario where employer liability may be appropriate.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured while he was riding as a passenger in a pick-up truck that was being driven by his father. The accident was allegedly the plaintiff’s father’s fault and occurred while the two were driving to a family reunion. The truck that the plaintiff’s father was driving was provided by his employer, the defendant.

December 28, 2018

Court Discusses “Dead Man’s Statute” in Recent Virginia Car Accident Case

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a Virginia car accident case discussing the state’s “dead man statute.” The dead man statute, contained in Code of Virginia section 8.01-397, provides guidance on how courts should handle cases where one party is incapacitated or has died since the events giving rise to the case.

The Facts of the Case

According to the court’s opinion, the plaintiff claimed he was injured when he was rear-ended by the defendant. The plaintiff filed a personal injury lawsuit against the defendant, but before the case reached trial the defendant died. The plaintiff’s case proceeded against the defendant’s estate.

Evidently, the defendant conceded liability for the accident, and the only issue for the jury to decide was whether the plaintiff was entitled to any damages and, if so, what amount. The plaintiff, who had been involved in several previous car accidents and had a lengthy history of pre-existing medical conditions, testified that the defendant was going at least 20 miles per hour at the time. The plaintiff sought $500,000 in damages, claiming that as a result of the accident she required an additional back surgery.

December 18, 2018

Court Affirms $3 Million Verdict in Recent Truck Accident Case, Illustrating Common Issues That Arise in Virginia Truck Accident Litigation

by Sidney Schupak, Esq.

Recently, a state appellate court issued an opinion in a personal injury case requiring the court to determine if a jury’s $3 million verdict in favor of the plaintiff was proper given the evidence presented at trial. After reviewing the evidence as well as the defendants’ specific claims, the court affirmed the judgment. The case is important to Virginia personal injury plaintiffs because it illustrates several issues that frequently arise in Virginia truck accident cases.

The Facts of the Case

According to the court’s opinion, the plaintiff was driving a van with four passengers inside. As the plaintiff approached a construction zone, he noticed that there was a large construction vehicle pulled off to the right side of the road. The plaintiff realized as he got closer that the vehicle was actually in his lane. Thus, the plaintiff crossed over the double-yellow line to overtake the vehicle. However, as the plaintiff was passing it, the vehicle made a sharp left turn, colliding with the plaintiff’s van. The plaintiff was seriously injured as a result of the accident and filed a personal injury lawsuit against the driver of the construction vehicle, as well as that driver’s employer.

After the accident, the plaintiff requested that the defendants preserve the construction vehicle, and the defendants agreed. However, when the plaintiff arrived to inspect the vehicle, parts of the vehicle had already been removed and were in the process of being repaired.

November 29, 2018

Landowner Determined Not to Be Liable for Accident Caused by Untrimmed Foliage

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case discussing an interesting issue that may come up in a Virginia car accident case. The case presented the court with the opportunity to consider whether a landowner could be held liable for an accident that was allegedly caused by untrimmed trees on the landowner’s property obstructing motorists’ view of an adjacent intersection. Ultimately, the court rejected the plaintiff’s argument that the court should impose such a duty on landowners and dismissed the plaintiff’s case.

The Facts of the Case

According to the court’s written opinion, the defendant owned land adjacent to an intersection where the plaintiff and another motorist were involved in a car accident. The plaintiff died as a result of the injuries he sustained in the crash. The plaintiff’s estate filed a wrongful death lawsuit against the defendant landowner.

Evidently, a law enforcement official investigating the scene of the accident determined that neither of the motorists applied the brakes or attempted to avoid the collision. The investigator concluded that each of the motorist’s view of the intersection was obstructed by foliage that was on the defendant’s property.

November 5, 2018

Hit-and-Run Car Accident Case Proceeds Towards Trial Solely on Circumstantial Evidence that the Defendant Was Driving

by Sidney Schupak, Esq.

Earlier this year, a state appellate court issued a written opinion in a personal injury case discussing whether the plaintiff’s claim against the defendant, which was based almost exclusively on circumstantial evidence, should be permitted to proceed towards trial. The case is important to Virginia personal injury plaintiffs because it illustrates the importance of circumstantial evidence and that circumstantial evidence can be just as convincing as direct evidence.

Direct Evidence vs. Circumstantial Evidence

Evidence can be broken down into two main categories: direct and circumstantial. Direct evidence tends to prove an assertion without any necessary inferences. For example, if an eyewitness sees a crime occur, the eyewitness’ testimony that the defendant committed the offense would be considered direct evidence.

Circumstantial evidence, on the other hand, requires at least one inference be made to prove an assertion. For example, fingerprints that are found at the scene of a crime would be circumstantial evidence that the defendant was at one time present at the crime scene and may have committed the crime. Both types of evidence can be equally persuasive, depending on the evidence itself, as well as the surrounding circumstances.

October 18, 2018

Court Discusses Employer Liability in Recent Distracted Driving Case

by Sidney Schupak, Esq.

Recently, a state appellate court issued a written opinion in a personal injury case discussing an important and frequently misunderstood issue that commonly arises in Virginia car accident cases. The case required the court determine whether a plaintiff’s claim against an employer could proceed towards trial despite direct evidence that the employee was not engaged in work-related activities during the accident.

Ultimately, the court concluded that a plaintiff must provide actual evidence to rebut direct evidence to survive a summary judgment challenge and merely questioning the credibility of the defendant’s witness is not sufficient to give rise to a disputed fact.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff was injured in a car accident that occurred when another motorist struck her vehicle. The other driver was on the phone at the time of the accident, speaking with a friend from work.

October 10, 2018

Virginia Accident Victims and the Importance of Reading All Settlement Agreements Closely

by Sidney Schupak, Esq.

According to the most recent estimates, approximately 95% of civil cases are resolved through pre-trial settlement negotiations. While it may seem that an attorney’s assistance is not necessary with the chances being so high that a case will not make it to trial, the exact opposite is true. Virginia personal injury attorneys are crucial to negotiating favorable settlement offers, and ensuring that the terms of the offer are fair to their client.

A settlement agreement is a contract between the parties. Most often, the agreement is that the plaintiff will withdraw their case against the defendant and in return, the defendant will provide some amount of compensation to the plaintiff. Normally, the amount of compensation provided to the plaintiff is less than it would likely be if the plaintiff were to succeed at trial; however, the plaintiff is provided with the certainty that they will be recovering a given sum for their injuries

Virginia personal injury plaintiffs should take care in executing a settlement agreement because these are binding contracts. A recent case illustrates one potential problem that a plaintiff may face when executing a settlement agreement with some, but not all, of the potentially liable parties.