Tips on Hiring a West Virginia Car Accident Attorney

I recently came across an article on ExpertLaw, regarding tips on hiring a personal injury lawyer, and I think it is great advice for anyone who has been injured and is seeking out a West Virginia personal injury lawyer – or a personal injury lawyer in any other state for that matter. Several questions are discussed:

Why do I need a lawyer?

When you or your loved one suffer an injury as the result of somebody else’s action, perhaps it seems natural that the person would offer to compensate you for your injury, or that their insurance company will do the right thing and offer a fair settlement. Unfortunately, that rarely happens. Many people will not take responsibility for their actions, and insurance companies profit from undercompensating injury victims. Insurance companies and their lawyers also know the governing law backwards and forwards, and they know that most non-lawyers have no idea what legal rights and remedies they possess.

An experienced personal injury lawyer knows how to build your case, how to negotiate your case with an insurance company, and, if necessary, how to take your case to trial. While it is possible to negotiate your claim with an insurance company yourself, insurance companies will typically do everything they can to take advantage of you and to effect the lowest possible settlement, while attempting to elicit statements from you that will damage your position if you ultimately decide to sue.

A lawyer is in a good position to help you obtain a favorable settlement that, even with the attorney fee deducted, significantly exceeds what you can obtain on your own.

How much does a personal injury attorney cost?

Personal injury lawyers almost always accept cases on a contingent fee (or “contingency fee”) basis, meaning that they if they win they receive a percentage of the award as their fee. If they lose, they do not receive an attorney fee. (Please note that attorney fees are different from costs, and you may be responsible for certain costs associated with your case, such as the filing fee for your lawsuit, even if you lose. While this is rarely an issue, as most civil litigation settles short of trial, you may wish to clarify the issue of costs with your lawyer.)

The amount of the contingent fee your lawyer will charge will vary somewhat from state to state. In most states, the attorney fee will be between one third and 40% of a personal injury award. Attorney fees for workers’ compensation cases are more tightly regulated, and are typically lower than for regular personal injury matters. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney’s contingent fee – however, the best personal injury lawyers are usually not willing to negotiate their fees. They know that they are often able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney.

Where Can I Find An Attorney?

You can find the names of attorneys from a variety of sources. You may seek advice from friends, or from your doctor or another health care professional. You may look in the Yellow Pages or an online lawyer directory. You may contact a State Bar lawyer referral service. There are many ways to seek a personal injury lawyer, but there are no magic answers to finding a good lawyer.

Go To An Attorney You Trust, And Seek A Referral

One of the best ways to find personal injury lawyer is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that they give you the name of a lawyer who can handle your case – what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to a lawyer who can.

You should note within this context that attorneys frequently receive “referral fees” when they send personal injury cases to other lawyers or law firms. The amount of this fee can be significant – it is usually about a quarter to a third of the fee received by the personal injury lawyer who handles your case. This gives the attorney an incentive to refer you to a good personal injury lawyer – but if this possibility makes you at all uncomfortable you shouldn’t hesitate to ask if the attorney referring your case expects a referral fee.

Referral Services & Membership Organizations

Many state bar organizations offer referral services to help people find attorneys. Usually, any member of the organization can list with its referral service, and you can’t know just from the referral that the lawyer is truly qualified to handle your case.

There are also a number of specialty organizations, such as the American Association For Justice , which offer online directories of their membership. Most lawyers with significant personal injury practices are members of the AAJ. However, most legal organizations are open to all attorneys, and membership means only that the attorney has paid the membership fee.

Internet Lawyer Directories

A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any personal injury lawyer who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case.

There are also a large number of websites on the Internet which look informational, but in fact are owned by law firms. Be wary of any “injury information” site that lists law firms or offers lawyer referrals, particularly if it does not make obvious the identity of its sponsor.

Advertising

The issue of attorney advertising is addressed in the next two questions:

Should I hire the personal injury law firm with the 1-800 number, and all of the ads on TV?

Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can’t get much attention for your case.

Please note that, when it comes to hiring a personal injury lawyer, many of the best personal injury attorneys do little or no advertising. They get their cases through “referrals” from other attorneys, due to their reputations for doing good work and getting good results.

Should I hire the lawyer with the big “yellow pages” ad?

If you look at the “full page” ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns.

Many of the biggest ads will be from personal injury law firms, who anticipate that their large advertisements will bring them large numbers of injury cases. Many of the better personal injury lawyers and firms do pay for full-page ads. However, as was previously noted, some of the best personal injury lawyers do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford in order to make their practices appear better than they really are.

If you look through the yellow pages, you will see that most lawyers claim to specialize in “personal injury” cases. Many of these lawyers have handled very few personal injury cases, and some have never had even a single injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case.

Are there special types of personal injury lawyers for different types of cases?

Yes. When you are seeking a personal injury lawyer, you should consider that most personal injury lawyers do not practice medical malpractice law, and many do not handle workers’ compensation cases. Just as you would seek a specialized doctor to provide a special type of medical care, the practice of medical malpractice law is very specialized and in seeking a lawyer it is almost always best to seek out a lawyer or law firm which has significant experience in that area of law. Some lawyers specialize primarily in workers’ compensation law, which is typically handled through a special system of administrative courts.

Further, beyond workers’ compensation and medical malpractice, certain law firms specialize in particular types of injury or cause of action. There are personal injury law firms which focus primarily on burn injuries, or brain and spinal cord injuries. There are personal injury firms which concentrate primarily on car accidents, construction accidents, or litigation over defective products. You will benefit from asking whether a lawyer you consult has experience with your type of injury before you make your hiring decision.

If I meet with an injury lawyer, do I have to hire him?

No. Although personal injury attorneys rarely charge for an initial meeting with a potential client, before your meeting you should ask if there is a fee for an initial consultation. If there is, you will be obligated to pay that fee even if you do not hire the attorney. However, even when the consultation is free, you have every right to take some time to think before you hire a lawyer, and you have every right to decide not to hire the lawyer. Hiring a personal injury lawyer is a big step, and there is nothing wrong with consulting several lawyers to find one who makes you comfortable.

What should I ask the attorney before I hire him?

The questions you should ask will vary with your case. Consider the following list to be a starting point:

What are your areas of specialization?
Have you handled cases like mine before? How many? What was the outcome?
Will you be the only attorney who works on the case? If not, who else will work on it?
How long will it take for this case to be resolved?
Will you take my case on a contingent fee basis?
Are there things I should do to improve my case, or to help you?
How will you keep me informed about the progress of my case?
If I contact your office with questions, how long will you take to return my call?
If you are unavailable or on vacation, who can I speak to about my case?
How often do you go to trial?
If I am not happy with a settlement offer and you want to settle, will you go to court anyway?
If I am happy with the offer but you think we can win more at trial, will you follow my wishes?
Have you ever been disciplined by an ethics committee, or been suspended from the practice of law? If so, why?
What “continuing legal education” courses have you attended during the past few years? Have you taught any?
Please note that, as desirable as references may be, it is usually not possible for personal injury lawyers to give references from past clients due to attorney-client confidentiality. However, you may wish to ask for references from other attorneys.

Should I ask for a written retainer agreement?

Yes. A written retainer agreement is the best way to ensure that your rights are protected, and in many jurisdictions is required for a contingent fee agreement to be valid. Many personal injury lawyers use a relatively short fee agreement, but even if it looks short and simple you should take your time and read the whole agreement before signing. If there is something you don’t understand, ask for clarification before you sign.

What if I hire an injury lawyer, but I don’t like the work he does?

Your lawyer works for you, and you have the right to terminate the attorney-client relationship. Please note, however, that your lawyer is still entitled to compensation for work performed on your case. If the lawyer was representing you on a “contingent fee” basis, the lawyer will often be entitled to a portion of the proceeds of your case once it has been resolved.

Usually, before you fire your lawyer, you will want to first talk to a different attorney. Sometimes the new attorney will tell you to try to work out your problems with your lawyer. If you choose to hire the new attorney, the new attorney should be willing to work out the details relating to any fees you may owe to your prior lawyer.

If I want to appeal my case, does my attorney have to represent me?

Generally not, unless your retainer agreement requires your attorney to take on the appeal. Your lawyer will ordinarily only have to represent you on the matters specified in your retainer agreement. Once a final judgment has been entered, your lawyer ordinarily has no further responsibility to represent you or to appeal your case.

What if a dispute arises?

In the event that a dispute arises between you and your lawyer, many state bars offer dispute resolution services. These services can be of particular benefit in the event of fee disputes. If you feel that your lawyer has acted in an unethical manner, each state has a “grievance” procedure where you can file a complaint against your lawyer and have your complaint investigated.

Source: Expertlaw.

Personal Injury 101 For Clients – Part III

1. What will the insurance company for the person, persons or company who caused my injury do about my claim?

After the insurance company has been notified about the claim, a file is established on you and your case. An insurance clams adjuster is assigned to your file by a claims manager or claims supervisor. The supervisor may assign different adjusters to your case as it progresses.

The insurance claims adjuster responsible for your file will maintain contact with your lawyer. The adjuster will also perform an independent investigation of your claim to ascertain the following:

a. Who is at fault in your case.

b. Whether or not you bear any fault for your own injuries. This is also referred to as comparative negligence or contributory negligence.

c. Potential witnesses in the case.

d. The location of the scene of the accident.

e. The contents of police reports, Department of Motor Vehicle reports, and any other investigative reports that have been filed in the case.

After the initial investigation, the claims adjuster will request medical reports and any other reports dealing with your injuries. The adjuster will also review documents about your time lost from work. Most importantly, the insurance claims adjuster will want to receive accurate records of your medical bills, prescription bills, hospital bills, therapy bills, and any other actual expenses incurred as a result of your injury. That is why it is very important for you to maintain an accurate account of your medical bills, lost wages, and other expenses which result from your injury.

2. How does the insurance company put a value on my case?

This question is quite complicated. First, the claims supervisor or claims manager will provide that a certain amount be “set aside” as a potential value of your case. This figure is usually called “reserves.” Such reserves are the outside value that the company has established on your claim. The reserves may change as the case progresses. In serious cases, such reserves may equal what are called policy limits. Policy limits are the outside limit amounts of liability established in the insurance policy of the person or persons who caused your injury.

During the preparation stages of your case, the insurance company will keep track of your medical bills, lost wages, any permanency regarding your injury, and other factors. The company will also take into consideration the quality of evidence against their insured, the quality of your witnesses and their witnesses, extent of liability on your part, and other important considerations such as previous injuries.

If you had a previous injury in the same area of your body, the insurance carrier will want to see medical records pertaining to that injury. During the course of your claim, your attorney will be notified by the insurance company about the important factors that are being considered in your particular case.

3. Should I communicate with or contact the insurance company for the person who caused my injuries?

Absolutely not! Under no circumstances should you contact the insurance company once you have retained an attorney. If you contact the other person’s insurance company, for any reason, you could ruin your entire case with one question or one statement.

Secondly, because you are now represented by a lawyer, the insurance company, in most states, is absolutely prohibited from having any personal contact with you for any reason.

4. Can I contact my own insurance company?

If you have health insurance, medical payments insurance, automobile uninsurance or underinsurance coverage, there may be occasions when it is appropriate for you to contact your own company. However, you should always ask your lawyer whether or not such contact is appropriate. Never contact an insurance company without first obtaining approval from your attorney.

5. Will the insurance company for the person who caused my injuries dispute my claim?

If liability and responsibility are well-established in your case — that is, if fault clearly rests with the insurance company’s insured (the person or persons who caused your injury), they will try very hard to settle your claim. Insurance companies usually dispute the following types of claims:

a. Claim in which the fault rests with someone other than their insured. This could mean you or someone else involved in the incident who may have caused your injuries rather than the person who is insured by the insurance company.

b. Claims in which the insurance company and its representatives do not believe that you are injured, or that you were injured as badly as you claim. For this reason, documentation of medical bills, lost wages, and other expenses are extremely important to establish credibility and the existence of your injury.

c. Cases in which you or your witnesses have lied, exaggerated, or fabricated the nature and extent of your injury or how the incident occurred.

6. What can I do to convince the insurance company that my claim is valid?

As stated above, the most important thing you can do is to recover as quickly as possible from your injury. Insurance company personnel tend to believe those people who actively try to recover from their injuries. That is why you must cooperate with your doctor, physical therapist and other personnel who are trying to help you improve from your injury.

Secondly, insurance companies believe those people who can document their injuries through medical bills, credible medical reports and accurate lost wage information that is neither exaggerated nor subject to dispute and interpretation.

Thirdly, insurance companies usually settle cases easier with those clients who have been in active contact and cooperation with their attorney.

In summary, it is important for you to try to get better, keep an accurate record of your expenses, and cooperate with your lawyer and his or her staff.

Personal Injury 101 For Clients – Part II

1. How will my lawyer handle my case?

After initial meetings with you, your lawyer will investigate your claim. This usually requires a review of some or all of the following:

a. Witness statements.

b. Police reports.

c. A possible visit to the scene of the incident.

d. A review of appropriate statutory law (laws enacted by your legislature).

e. A review of appropriate case law (laws made by judges who interpret statutory law).

f. A review of all medical reports.

g. A review of all medical bills.

h. The possible hiring of an investigator to investigate the details of the incident.

Your lawyer will also contact the insurance company for the person, persons, or company who caused your injuries. After the initial investigation and contact with the insurance company, your lawyer will maintain contact with you to make sure of the following:

a. That you are following the advice of your physicians and other medical practitioners.

b. That you are doing your best to improve from your injury.

c. That you are providing your lawyer with copies of all medical bills and other expenses related to the incident.

d. That you are providing records of loss of income from your job.

e. That you are keeping track of potential witnesses in your case.

Medical records will be obtained through the use of authorization forms as discussed below. Your lawyer will review those medical reports as they come in from your doctor and will keep abreast of the applicable law relating to your case.

2. How can I help my lawyer with my case?

The most important thing for you to do is to provide documentation of your medical bills, expenses and loss of income from your employment. The following is a list of things that will also help your lawyer with your claim.

a. Return all phone calls promptly to your lawyer.

b. Read all correspondence from your lawyer.

c. Keep all appointments with medical facilities.

d. Maintain a file and record of medical bills, lost wages, and other expenses associated with the injury.

e. Keep a list of witnesses who may testify about your injuries or about the incident.

f. Take photographs as instructed by your attorney and maintain copies and negatives of such pictures.

g. Notify your attorney immediately of any change of address, telephone numbers, marital status, change of employment or drastic change in your physical condition.

h. Answer all questions posed by your attorney truthfully and candidly.

i. Sign all forms requested by your attorney.

3. Why do I have to sign so many forms?

Doctors, hospitals, employers, and other establishments will not release personal information about you without signed written authorizations. It is against the law, in most instances, to release information about a person, to anyone, including your lawyer, without formal documentation. Therefore, your lawyer will ask you to sign such authorization forms which will allow him or her to retrieve important information about you.

4. How will my lawyer be paid and what is a contingent fee agreement?

In almost all personal injury cases, your attorney will be paid by keeping a percentage or portion of the final settlement or court award resulting from your injury. The percentage will be discussed with you and will be the subject of what is called a contingent fee agreement. The law requires, for your protection and that of your lawyer, a written contract which specifies the fee he or she will charge so there will be no misunderstanding about how much your case will cost. Most contingent fee agreements provide that you do not have to pay your lawyer for his or her services unless, and until, the case is settled or is resolved by a court verdict in your favor. The agreement will provide that your lawyer will work diligently on your case in exchange for the percentage or portion outlined in the agreement. As discussed below, however, you will be responsible for actual out-of-pocket costs, in addition to the attorneys’ fees, even if the case is not settled or won.

5. What other costs will there be in addition to the attorneys’ fees?

The fee for your attorney is based upon his or her work, time, effort and expertise. The lawyer’s fee also encompasses certain office overhead such as secretarial time, rent, files, and other built-in costs. However, there are also additional out-of-pocket expenses which are incurred specifically as a result of your case. Some of these expenses include the following:

a. Fees that doctors and hospitals charge for medical reports. Such reports may cost anywhere from a few dollars for simple copies to $100 or more for reports that have to be written or prepared specifically by your doctor.

b. Photocopy charges. Insurance companies require significant numbers of copies of medical bills, medical reports, police reports, witness statements, and lost income information. Your law firm has to pay for these photocopies and you will usually be charged a certain amount for each page of copy.

c. Long distance telephone calls. If long distance telephone calls are required, you will probably have to reimburse your attorney for the actual cost of each call.

d. Costs of photographs. Photographs are extremely important in personal injury cases and if your attorney incurs expense in having photos obtained or enlarged, you will be responsible for such costs.

e. Reports of experts. Reports from experts other than physicians may be required in your case and, if so, you will have to pay the costs that such experts charge for their reports.

f. Litigation costs. If your case has to proceed to suit or litigation, there will be costs incurred as a result of the filing of such a lawsuit.

6. Are the attorneys’ disbursements and costs also contingent and if not, do they have to be paid in advance?

The costs and disbursements outlined above in question 5 are your responsibility even if there is no recovery in your case. In other words, although your attorney’s fee is contingent upon a settlement or successful court award, the actual out-of-pocket costs are not contingent upon successful recovery. Your attorney may require you to assist in such costs as they are incurred. Therefore, you may be requested to pay some of the out-of-pocket costs in advance of settlement as the case progresses. The reason for this is that it is not economically feasible for law firms to “finance” personal injury cases. For this reason, the law provides that out-of-pocket expenses are the responsibility of the client even if the case does not settle.

Personal Injury 101 For Clients – Part I

 

1. What is the most important thing for me to do after my injury?

 

The most important thing for you to do, quite simply, is to recover from your injury. The law requires injured people to “mitigate their damages.” In other words, the law requires you to do that which is necessary to improve your physical condition and recover from your injury.

 

For you this may mean some, or all, of the following steps:

 

a. Do not miss appointments with your doctor. Stay in touch with your doctor and be certain to maintain your appointments. If you have to cancel, notify the doctor with as much notice as possible. The words “no show” on a doctor’s record sheet can be used against you at the time of settlement or trial.

 

b. Attend physical therapy sessions as prescribed. Your physician or hospital may prescribe therapy to facilitate recovery from your injury. Such a procedure is often helpful in many types of injuries including strains, sprains and other so-called “soft tissue” injuries. If physical therapy is prescribed, be sure to keep your appointments and participate actively in the process. Again, if you have to cancel an appointment, be sure to call, but try to avoid cancellation as much as possible.

 

c. Do what your doctor tells you to do. If your physician prescribes certain medications, therapy exercises, or limitations on activities, be sure to follow your doctor’s orders. Failure to follow your doctor’s advice can be used against you when it comes time to settle your case, or can be used against you in court if your claim proceeds to litigation.

 

d. Follow your doctor’s advice with respect to work and leisure activities. If your physician advises you to rest, stay home from work, or avoid certain activities, it is important that you follow such advice. If you resist your doctor’s advice and do activities that have been limited, it will not only prevent a speedy recovery, but could also affect the legal aspects of your case. Even though staying out of work may have an impact financially, it is important that you follow such advice so that your recovery will be enhanced. Your attorney will attempt to recover lost earnings.

 

2. How do I pay my medical bills?

 

Your lawyer will discuss the payment of your medical bills in detail with you. In summary, your medical bills may be paid by one of the following methods:

 

a. Your own health insurance from your employment benefits package.

b. Your own health insurance that you may have paid for personally.

c. Health insurance obtained by your spouse for your benefit or by your parents if you are under age and living with such parents.

d. Medical payments insurance coverage from your own automobile policy if you were driving your automobile and were involved in an automobile collision.

e. Medical payments insurance coverage from the person you were riding with if you were a passenger in an automobile that has automobile insurance coverage.

f. Your own personal funds if you were not insured and are able to pay medical bills as they are incurred.

g. Workers’ compensation insurance if your injury occurred while you were working on the job and the injury occurred as a result of your employment.

h. The liability insurance coverage for the person, persons or company who caused your injuries. Such insurance coverage will most likely be paid at the time of settlement rather than during the period that you incur such medical bills.

i. Other possible sources.

 

Depending on the nature of your case, your medical bills may be covered by any of the above possibilities. If there is no insurance coverage, your bills will be saved by you and your lawyer, and will be paid at a later date when and if your case settles.

 

3. Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred?

 

In most cases where there is no immediate method to pay medical bills as they are incurred, many doctors, hospitals, and other medical facilities will wait to be paid for their services when the case is finally resolved by way of settlement or verdict in court. It is important to let medical providers know early in the process if you have no insurance or financial means to pay medical bills as they are incurred.

 

4. How does my lawyer make sure that the doctors and medical facilities will got paid?

 

Most lawyers have a policy of withholding money from the settlement or court verdict to pay doctors and medical facilities. Many doctors and medical facilities require that the patient/client sign a form (usually called a subrogation or lien form) which allows the attorney to withhold enough money to pay medical bills directly from the insurance settlement proceeds.

 

5. Why won’t the insurance company for the person or company who caused my injuries automatically pay my medical bills as they occur?

 

Most insurance companies for the tortfeasor (the person, persons or company who caused your injuries) will not automatically pay medical bills as they occur. There are many reasons for this. One reason is that they do not want to spend a substantial amount of money for medical bills and then be faced with an unreasonable or excessive demand at the time of final settlement. In other words, they do not want to expend a substantial sum of money on medical bills and then be faced with the chance of defending a lawsuit. Secondly, most insurance companies want to conclude or settle the claim with one sum of money. Therefore, most liability insurance companies will wait for the letter of demand from your attorney and then try to conclude the case all at once with one payment.

 

6. How do I keep track of all my bills?

 

One of the most important things for you to do is to keep an accurate record of your medical bills. This is how you do it:

 

a. Ask for a medical bill each time you see a doctor or facility.

 

Maintain a record of your visits and make sure that you obtain a medical bill for each visit to your doctor, hospital, physical therapist or medical facility.

 

b. Save all prescription bills.

 

Be sure to save copies of your prescriptions and drugstore charges for medicine that you purchase as a result of your injury.

 

c. Keep a separate chart with dates, amounts of medical bills, and purchases of medication.

 

Maintain a separate record which has the date of the medical service or purchase of medication, the amount charged, and how the bill was paid (by insurance, your own personal funds, etc.). This requirement is very important because it will be your actual record of medical bills incurred as a result of your injury.

 

d. Be sure that your lawyer receives a copy of each medical bill, prescription bill, or other bill related to your injury.

 

It is important for your lawyer to receive copies of all your medical bills as well as a copy of your medical bill summary when your case is ready for settlement. Even though your lawyer may receive copies of bills directly from the medical facilities, a double-check process will assure that your claim settles for the maximum value. If your lawyer does not have a record of all your medical bills, your case may be settled for much less than its actual value.

 

e. Keep a record of medical bills even if they are processed through a health insurance carrier.

 

Even if your medical bills are paid by a health insurance company or your employer, you must still maintain copies for yourself and be sure to get copies to your lawyer.

Automobile Accident Statistics and Injury Prevention

Between the years of 2000 and 2005 there were over 6 million auto accidents in the United States. In each of those years approximately 2.9 million people were injured and over 42,000 people were killed. About 115 people are killed every day in vehicle crashes in the United States. In 2007 there were approximately 300 million people in the United States. Of the people killed in automobile accidents in 2007 approximately 20% were passengers. In 2007 approximately 5,000 people were killed in motorcycle accidents. Also, in 2007 approximately 4,600 pedestrians were killed in accidents involving motor vehicles. There were 255 million vehicles registered and approximately 200 million licensed drivers.

The motorists advocacy group AAA reports that accidents cost $162 billion each year. The cost of auto accidents to each American is more than $1,000 a year. Also, according to AAA car accidents involving drivers 15 to 17 years of age cost society more than 34 billion in medical expenses, property damage and related costs in the year 2006. 15-18 year old drivers were involved in 974,000 crashes that injured 406,427 people and killed 2,541. According to the Center for Disease Control motor vehicle crashes are the leading cause of death among U.S. teens, accounting for 36% of all deaths in this age group.

So, what can be done to protect motorists from injury and death caused by motor vehicle accidents? The answers to this question are as follows:

1. Don’t’ drink and drive. Don’t ride in a car when the driver has been drinking.
2. Require your teenagers to enroll in driver safety programs.
3. Drive large vehicles. Full sized passenger cars weighing over 4000 pounds have a lower injury and fatality rates.
4. Lower your speed. Speed kills.
5. Practice defensive driving.
6. Stricter enforcement of traffic laws.
7. Make drivers who cause accidents criminally and civilly responsible.
8. Lower the center of gravity on Vans, SUVs, and pick-ups to prevent roll over accidents.
9. Incorporate some form of roll cages in vehicles.
10. Incorporation of more safety glass in vehicles.
11. Restricted licenses for the elderly and those with poor vision.
12. Better highway design. Fix the bad roads before we build new ones.
13. Raise insurance rates for at-fault drivers and lower them for safe drivers.
14. Better DMV reporting of traffic infractions to insurance companies.
15. Use of and incorporation of safety equipment such as seat belts, air bags, side curtain air bags, crumple zones and energy absorbing bumpers.
16. Don’t drive if you’re tired.
17. Raise the driving age to 19.
18. Require drug and alcohol testing for all traffic infractions.

 - John H. Bryan, West Virginia Car Accident Attorney.

What is my West Virginia auto accident injury claim worth?

What is my West Virginia car accident injury case worth?  This is a great question, and indeed almost every West Virginia car accident case client has asked me this question.  Unfortunately, there is no easy answer.  Obviously, money is not everything, but the purpose of our civil justice system is to compensate people for the wrongs of others, and the only manner of compensation which can be achieved is through money.  One of the most difficult aspects of handling West Virginia personal injury actions, including car accident cases, is to discuss, and agree on, a settlement value.

The basis for a settlement is simple.  Assuming your attorney can prove the other party is at fault, what does an insurance adjustor believe  your attorney can convince six West Virginians, sitting as jurors, that your claim is worth?  Of course there’s a whole lot more to it, but everything else is merely a weight on either side of the scales of justice – either weighing for, or against, the value of your case.  This forms the basis over which your case can be negotiated and settled.  If no settlement is possible, then you have to actually ask those six individuals to give you what you are arguing you deserve.  Of course, juries are made up of individuals, which means that different juries could come up with different values, which means that the value of your case is unpredictable.

Some things we can predict.  More often than not, the value of a case will increase over time.  In almost every case, the value of a settlement offered the day before trial is going to be greater, if not much greater, than the value of a case settled before a lawsuit is filed.  But there are many factors that could weigh the scale in either direction (i.e., sway, or potentially sway, jurors in favor of either side’s arguments):

The arguments usually consist of disagreements over the severity of injuries, as described by you, other witnesses, and your medical records, and over the causal connection between the accident and the injuries incurred and complained of.  Another factor is the persuasiveness and credibility of the testifying witnesses.  Yet another factor in consideration is – what venue in West Virginia would the case be brought in (i.e., what county).  For instance, in the coalfields of McDowell County, jurors are notorious for giving large verdicts.  But, in Greenbrier County or Monroe County, although they also are in southern West Virginia, jurors are notoriously conservative, and thus have a record of handing out smaller verdicts.

It helps to understand how insurance companies determine the value of a West Virginia car accident injury case:

Many insurance companies we deal with in West Virginia injury cases use computer software called Colossus, which is reportedly used by more than half of American insurance claims adjustors.  The enter data received from your lawyer, including medical records and the amount of any lost wages.  The program then considers the severity and location of the accident.  It will even consider whether a lawsuit will have to be brought in Greenbrier County, or McDowell County, or Mercer County, or Raleigh County, West Virginia.

The program gives value to certain injuries, and awards more value to permanency of injuries.  Higher value is given to objective injuries, such as broken bones, or herniated discs.  Lesser value is given to subjective injuries, such as complaints of chronic pain or headaches.  Value could also be added or removed due to other factors, such as whether the injured person went to the hospital immediately after the accident, or whether there were preexisting injuries, or injuries which have occurred after the accident.

Also considered will be who the accident attorney is responsible for the case. The insurance adjustors know which attorneys settle cases without proceeding towards trial, or even filing a lawsuit.  Even more important, it will be up to your attorney to take your case from a number generated by computer software to a realistic view of human compassion and needs.  Your accident attorney has to communicate your everyday pain and suffering to the jury.  This is a very subjective task.  One attorney may not do well at it, but another may do extremely well.  The resulting compensation which juries award for that pain and suffering will be the result.  I believe that the more effective your accident attorney is at trial and persuasion, the more compensation you will receive.

Example Values of Specific Injuries (According to a recent national Jury Verdict Research analysis):

Foot Injuries: the overall median award was $98,583.  Multiple fractures to the same foot increase the median to $144,000.  11% of these injuries were from motorcycle cases.  Another 28% of these injuries were from car and truck accidents.

Leg Injuries: the overall median award was $141,847.  However, there are many types of leg injuries and fractures, some of which command remarkably higher verdicts, such as a femur fracture, which holds a median award of $482,273 – with the highest recorded verdict being $4,000,000.  Multiple fractures in the leg carry a mean and median verdict of $596,618 and $192,762, respectively.

Rotator Cuff Injuries: the overall median award was $72,667.  These typically occur in side-impact car collisions.  

Knee Injuries: the overall median award was $34,550 – which does seem a little low.

Vertebrae Fractures: the overall median award was $112,537. 66% of these cases were from car accidents, which are the leading cause of spinal injuries.  The overall award for multiple vertebrae fractures increases to $207,000.

Hip Fractures: the overall median award was $175,000, and the overall mean award was $435,581.

Overall, the value of your case can only be determined with respect to your individual injuries and circumstances.  Also at play is the amount of insurance available to compensate you  for your injuries.  In many, many cases, there is not enough insurance.  Sometimes alternate sources of insurance or liability can be found.  For this reason, among many other important reasons, it is very important to consult with an experienced West Virginia car accident injury lawyer about your particular case – and preferably one who has a reputation for going to trial often and winning.  As I have said before, almost every car accident attorney offers a free consultation.  And if they don’t, then call someone else.

 - John H. Bryan, West Virginia Car Accident Attorney.

On being successful in a West Virginia car accident case

As a West Virginia car accident lawyer, I have seen many examples of people who’s cases were mishandled due to the neglect or improper representation of a prior attorney.  Many attorneys will just sign a client up, then will talk with the insurance company about settling the case, and then eventually will talk the client into taking an extremely lowball offer because they are not able or not willing to file suit and take the case towards trial. 

For this reason, I can tell you that the proper way of finding a West Virginia car accident attorney is not to just open up the yellow pages and choose the flashiest advertisement.  Though many, many, attorneys advertise as West Virginia personal injury attorneys or West Virginia car accident attorneys, that doesn’t necessarily mean that all of those attorneys are experienced in these types of cases.  Many of these attorneys may not even regularly try cases.

Insurance companies know which attorneys try cases and which do not, and they offer settlements accordingly.  If they know they don’t have much to fear – that the attorney will want to avoid trial at all costs and will advise the client against trial, they will make a low offer.  And vice-versa.  The best way to achieve a successful resolution to a West Virginia car accident case is to make sure that you choose an attorney who has a record of trying difficult cases and winning.

 - John H. Bryan, West Virginia Car Accident Attorney.

Civil Liability of Police Departments and Officers in West Virginia for Auto Accidents Resulting From Pursuit Situations

Here is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia a few weeks ago which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).  

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.  

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).  

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers 

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

Note:  If you or a loved one has been injured in an auto accident involving a police department, or other governmental, vehicle, please know that recovering compensation for those injuries is made infinitely more complicated due to immunity and causation problems.  It’s extremely important that you speak with an attorney who has experience with these types of cases.  I offer free consultations and (potentially) accept these types of cases in all 55 West Virginia counties.  Call me at 1-888-54-JBLAW.

 - John H. Bryan, West Virginia Car Accident Attorney.

Workplace Injury Litigation in West Virginia is more than Worker’s Compensation

Although this blog is related primarily to West Virginia auto accident injury cases, I receive a lot of questions and calls about workplace injuries in West Virginia, and I handle these types of cases frequently throughout West Virginia.

Workers in West Virginia should be aware that if they are injured on the job, they may be able to recover more compensation other than just Worker’s Compensation benefits – which due to the recent privatization of Worker’s Comp in West Virginia, are inadequate as ever.

In West Virginia, its possible to file a lawsuit directly against your employer for personal injuries where it can be shown that there existed “deliberate intent” on behalf of the employer at the time of the injury.  Usually employers are immune from direct lawsuits for personal injury, but if the employee can prove the five elements of “deliberate intention,” then they may recover damages directly.

In West Virginia, it must be proven that:

1. A specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
2. That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
3. That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment, or working conditions;
4. That notwithstanding the existence of the facts set forth in the above 3 requirements, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and
5. That the employee suffered serious compensable injury or compensable death as defined in the Worker’s Comp statutes, whether a claim for benefits under that statute is filed or not as a direct and proximate result of the specific unsafe working condition

Whether any particular situation meets these five elements may not be easily known to an injured employee.  Thus, it is extremely important to speak with a West Virginia attorney who practices in this area as soon as possible when there has been a workplace injury – especially one that is serious.  In most cases, it is necessary to conduct an investigation of the circumstances surrounding the incident, before the legal basis of a potential “deliberate intent” claim can be evaluated.

Although the five elements in West Virginia seem daunting, there is a wealth of federal safety regulations governing workplace safety.  If it can be easily proven that the employer violated one of these regulations, then many times the case itself can be proven.  I frequently handle these types of cases, and would be happy to speak with you for free about your situation.  You can email me, or give me a call at 1-888-54-JBLAW.

 - John H. Bryan, West Virginia Attorney.

More Jury Instructions for West Virginia Personal Injury Trials – Passengers

I’ve often referred to jury instructions as being the best guide of what West Virginia law is with respect to personal injury cases, and automobile injury litigation in particular.  Here are some more having to do with passengers:

PASSENGER LIABILITY FOR INJURIES
CAUSED BY DRIVER’S INTOXICATION

    A passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met:

    (I)    The driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party’s injuries, and

    (2)    The passenger’s conduct substantially encouraged or assisted the driver’s alcohol or drug impairment.

Wheeler v.Mumhig, 452 S.E.2d 416 (W.Va. 1994)

JOINT ENTERPRISE

     When two or more persons undertake an activity involving an automobile for a common purpose, with the common right to control the use of the vehicle, then each is liable for any negligence of the other occupants of the vehicle that is committed during the operation of the motor vehicle. Therefore, the negligence of one of the occupants of the vehicle is imputable to the other occupants of the vehicle if there was a common right to control the vehicle by the other occupants of the vehicle.
    However, a passenger in a motor vehicle is not responsible for any negligent acts of the driver of the vehicle by the mere fact the driver and passenger were riding together to the same destination for a common purpose, when the passenger had no voice in directing and controlling the operation of the motor vehicle. 

Price v. Haistead, 177 W.Va. 592, 355 S.E.2d 380 (1987).

Wheelerv. Mumhu, 452 S.E.2d 416 (W.Va. 1995).

 
“JOINT VENTURE” INSTRUCTION

     A “joint venture” is an association of two or more persons to carry out a single business enterprise for profit. To constitute a joint venture, each party must contribute something promotive of the enterprise. This can be property, money, efforts, skill, knowledge or anything else which has value and “promotes” the common undertaking. The contributions of the respective parties need not be equal or of the same character. Where a joint venture exists, each joint venturer is liable for the negligence of his or her co-venturers committed within the scope of the enterprise.

Price v.Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987) Single v. Starr, 520 S.E.2d (W.Va. 1999)

   
SUBSTANTIAL ASSISTANCE AND ENCOURAGEMENT BY PASSENGER

    A guest passenger may be held liable for the consequences of the driver’s negligent operation of his motor vehicle, where the guest directs or encourages the negligent act, or personally co-operates therein. Ratification of the negligent conduct of the driver by a guest may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain.

Price v. Haistead, 355 S.E.2d 380 (W.Va. 1987)

“PASSENGER’S DUTY TO WARN DRIVER” INSTRUCTION

    The Court instructs the jury that in the ordinary operation of an automobile under circumstances and conditions which may be considered usual for the street and road being traveled, a guest in the automobile such ps the plaintiff, , is not required to be constantly at the height of attention and alertness in order to raise an instant alarm if danger should arise.

Darling v. Browning, 120 W.Va. 666, 200 S.E. 737 (1938).

“NEGLIGENCE OF PASSENGER RIDING WITH AN 
INTOXICATED DRIVER” INSTRUCTION
  
Contributory Negligence of Passengers in Automobile

     In order for you to find that [passenger] was contributorily negligent for getting into the automobile with [driver] as the driver or remaining in the automobile with Edriver] as the driver when [passenger] could have gotten out prior to the wreck that injured him, you must find (1) that [passenger] knew, or by the exercise of reasonable care should have known, [driver] was drinking, and (2) that [passenger] knew or in the exercise of reasonable care should have known that [driven's ability to drive was impaired. Unless you find that [passenger] knew, or by the exercise of reasonable care, could have known that [driver]’s driving was impaired before he entered [drivel's automobile or remained in it as passenger after being afforded the opportunity to get out, you cannot find that [passenger] was contributonily negligent.

    Further, if you find that (passenger] only discovered that (drivel’s driving was impaired when he began to speed and drive recklessly, and that [passenger] had no reasonable alternative but to stay in the car after protesting the driving to [driver], then, in that event, [passengerj could not be contributorily negligent.

Meade v. Meade, 147 S.E.2d 171 (Va. 1966)

 - John H. Bryan, West Virginia Car Accident Attorney.