New anti-texting legislation to take effect in West Virginia

The new texting-while-driving legislation which was passed in West Virginia is set to take effect on Friday, June 8, 2012.  West Virginia is now the 41st state banning texting-while-driving.

However, the law does not apply just to texting, but also to talking on the cell phone.  On June 8 texting or using a hand-held cell phone becomes a secondary offense – meaning that cops are not supposed to pull you over just for that offense, but they can ticket you for that offense if they pull you over for some other reason.  On July 1, 2012 it becomes a primary offense.

At this point it is important to make sure new vehicles you buy are equipped with bluetooth hands-free cellular technology.  If not, you will want to buy a bluetooth headset if you must talk on your cell phone while driving.

West Virginia is the 8th Most Dangerous State to Drive In

According to an article published by Walstreet 24/7, West Virginia has been ranked as the 8th most dangerous state to drive in:

8. West Virginia
> Average auto fatalities per 100,000: 19.8
> Auto fatalities/year: 359 (18th fewest)
> Lifetime medical costs due to 1-yr, auto accidents: $2,938,686 (18th lowest)
> Lifetime work loss costs due to 1-yr. auto accidents: $289,051,095 (16th lowest)
> Pct. commuters traveling 30 mins. or more: 33.11% (17th highest)

Of the states with the highest auto fatality rates, West Virginia was one of the few with a large percentage of commuters traveling at least 30 minutes to work each day. Between 2007 and 2009, West Virginia averaged 359 auto fatalities each year, or 19.8 per 100,000 people. According to estimates, auto fatalities in one year cost the state $289 million in lost productivity. Of the four policies highlighted by the report, the state has adopted two — mandatory helmets and booster seats — but remains one of only 18 states that does not have a primary seat belt law.

Read more: The Most Dangerous States to Drive In – 24/7 Wall St. http://247wallst.com/2012/05/24/the-most-dangerous-states-to-drive-in/#ixzz1wvT9291L

What is the law on texting and driving in West Virginia?

As of right now, unlike other states, texting and driving is not illegal in West Virginia.  However, for drivers under the age of 18, cell phone use while driving is illegal, which includes texting.  There is legislation currently under consideration in WV which would make texting and driving a traffic infraction.  However, it has not yet been adopted, partially because it also criminalizes texting while parked in traffic.  There was recently an article in the Charleston Gazette on the legislation, which included some of the following information:

As drafted, texting while driving would be a primary offense — meaning that police officers could pull over drivers for texting, without observing any other traffic violations. However, there would be no court costs or driver’s license points assessed for a conviction.

Under the bill, drivers who pull over to the side of the road to read or send text messages would not be in violation of the law.

However, as currently drafted, drivers could be cited for texting while on a roadway, even if they were stuck in a traffic backup, and their vehicles were not moving.

Both nationally and in West Virginia, texting and driving is a substantial cause of serious injury and death in car wrecks.  Essentially, texting and driving is driving while distracted.  The federal government actually has a website which informs people about the dangers of distracted driving.  It contains some of the following information:

Research on distracted driving reveals some surprising facts:

  • 20 percent of injury crashes in 2009 involved reports of distracted driving. (NHTSA).
  • Of those killed in distracted-driving-related crashed, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (NHTSA)
  • In 2009, 5,474 people were killed in U.S. roadways and an estimated additional 448,000 were injured in motor vehicle crashes that were reported to have involved distracted driving. (FARS and GES)
  • The age group with the greatest proportion of distracted drivers was the under-20 age group – 16 percent of all drivers younger than 20 involved in fatal crashes were reported to have been distracted while driving. (NHTSA)
  • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)
  • Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)

Police-reported data from the Fatality Analysis Reporting System (FARS) and the National Automotive Sampling show that:

  • In 2009, there were 30,797 fatal crashes in the United States, which involved 45,230 drivers. In those crashes 33,808 people died.
  • In 2009, 5,474 people were killed in crashes involving driver distraction (16% of total fatalities).
  • The proportion of fatalities reportedly associated with driver distraction increased from 10 percent in 2005 to 16 percent in 2009. During that time, fatal crashes with reported driver distraction also increased from 10 percent to 16 percent.
  • The portion of drivers reportedly distracted at the time of the fatal crashes increased from 7 percent in 2005 to 11 percent in 2009.
  • The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group – 13 percent of all 20-to-29-year-old drivers in fatal crashes were reported to have been distracted.
  • Of those drivers reportedly distracted during a fatal crash, the 30-to-39-year-old drivers were the group with the greatest proportion distracted by cell phones. Cell phone distraction was reported for 24 percent of the 30-to-39-year-old distracted drivers in fatal crashes.
  • Light-truck drivers and motorcyclists had the greatest percentage of total drivers reported as distracted at the time of the fatal crash (12% each). Bus drivers had the lowest percentage (6%) of total drivers involved in fatal crashes that were reported as distraction-related.
  • An estimated 20 percent of 1,517,000 injury crashes were reported to have involved distracted driving in 2009.

The National Motor Vehicle Crash Causation Survey (NMVCCS) is a nationally representative survey specifically focused toward documenting events and conditions leading up to crashes.

  • NMVCCS captures distraction as an associated factor to the crash and/or as the critical reason that made the crash imminent. Driver distraction was coded as the critical reason in 18 percent of the crashes. Data describing the specifics of the distraction — for example adjusting the radio or eating — are included in this data set.

Another method for collecting pre-crash data is through naturalistic driving studies, in which vehicles are equipped with cameras and data recording equipment.

  • During NHTSA’s 100-Car Naturalistic Driving Study, driver involvement in secondary tasks contributed to more than 22 percent of all crashes and near-crashes recorded during the study period.

Data Sources

The following NHTSA data sources were used in the research:

  • Fatality Analysis Reporting System (FARS)
  • National Automotive Sampling System (NASS) General Estimates System (GES)
  • National Motor Vehicle Crash Causation Survey (NMVCCS)
  • The 100-Car Naturalistic Driving Study
  • National Occupant Protection Use Survey (NOPUS) of Driver Electronic Use
  • Motor Vehicle Occupant Safety Survey (MVOSS)

Please understand that although texting and driving is not yet a traffic infraction in West Virginia, it is punishable through civil liability in a personal injury lawsuit.  One of the first things we do as WV car wreck attorneys is to subpoena cell phone information for drivers who may have been using cell phones at the time of the car accident.  In close liability situations this can seal the deal.  In other situations, it helps ensure that our clients cannot be threatened with potential liability issues at trial.

WV Car Wreck Attorneys – Big or Small?

People who have been injured in West Virginia car wrecks will have a choice to make: hire the big car accident law firm, or choose an individual WV car accident lawyer to handle their injury claim.  Here is one big difference that I have noticed between the two here lately.  The larger car wreck firms in WV, in this economy, have been churning out settlements at very low figures.  I know this because this has made it much more difficult for the smaller firms: those of us who refuse to settle for less than our clients deserve.  The insurance adjustors have lowered their values for most injuries, because they compare to past settlements.  The more low settlements they achieve, the lower their future offers will be for similar injuries.

So what can be done?  Cases need to be tried.  They need to be litigated.  That’s what they build courthouses for.  If the insurance company won’t pay up, take it to the jury.  That is the only way you can get what you deserve.  In my experience, the smaller firms rely less on having a large caseload of cases constantly settling, and concentrate on doing well on a smaller number of cases.

At my law firm, we will always meet with car wreck injury victims for free, and will offer our opinions and insight with no obligation to retain us or even pay a dime.  And generally, our offices are much closer to our clients.  It is always frustrating when a car accident injury victim, or their family, bypasses our office to go to a big law firm in Charleston.  I urge you to talk with a small law firm first in your general area.  You may be impressed.

Personal injury representation: the right way

It’s hard not to notice that almost every attorney out there advertises heavily for personal injury clients.  There are generally two kinds of lawyers who do this: lawyers who regularly handle personal injury cases, and lawyers who do not regularly handle personal injury cases but who would like to.  An injured person must be very careful in his or her choice of personal injury attorney – firstly by making sure that they actually retain a personal injury attorney.  Secondly, even if someone regularly handles personal injury cases in West Virginia, he or she may not be the right choice for the case.

I cannot remember how many times I have had people call me who are unhappy with their choice of personal injury lawyer.  They hired them, signed an agreement, and never heard another word from them.  The reason probably being that they are one in a hundred of clients in a personal injury mill.  In one of those law firms there is little one-on-one attention to the client.  Instead there is a lot of procrastination and mass churning of cases, heavily reliant on forms and always dependent on the early settlement of cases for less than the client fairly deserves.  This is the wrong way to do it.

There is a right way to handle a personal injury case.  From day one, the law firm must undertake their own investigation of the cause of the injuries.  Evidence must be preserved.  I would bet that in probably 75% of personal injury cases, the lawyers do not adequately perform an investigation and do not adequately preserve evidence.  The result is that the client will not be adequately able, or prepared, to go to trial and win.  This usually means that the client must settle – and must settle for less than he or she deserves.

Thirdly, a personal injury case must be actively prosecuted.  This means that the law firm must work on it no less than once per week.  Things must get done.  The case must be kept moving – toward trial.  I would venture to say that 70% of personal injury cases are chronically delayed to due to no reason other than the law firm’s caseload or laziness.  Generally, the closer and more quickly you move towards trial, the better the settlement will end up being (assuming it is not done recklessly or without diligence).

Fourthly, the client must be kept involved and informed in what is going on.  The client must have constant access to the law firm.  There should be many questions answered.  The client should not feel left out of the process.  Likewise, a good personal injury case also requires a reasonable client.  If a client has unreasonable expectations (sometimes that is the fault of the attorney who has misled them in order to get the case) proper handling of the case can be impossible.  Where clients are reasonable and informed, cases get much better settlements.

So don’t just open the phone book and call whomever has the largest ad.  And don’t just call the attorney who handled your divorce.  This is a complex area of the law that requires specific talent and experience.  Utilize the free consultation process to find the right person for your case.

Multiple injury claims in one auto accident case

Many times you have multiple passengers injured in one auto accident.  This can complicate matters, but fortunately most good insurance policies are prepared for this situation.  Most policies will have a maximum amount of insurance available, say for example $300,000.00.  That policy will then put a limit of $100,000.00 per person.  So if you have three passengers injured in the other vehicle (where the driver was not at fault) each have $100,000.00 in available bodily injury insurance available to cover their insurance claims.

Each claim is separate, but they share the common set of facts when it comes to who was at fault in the accident.  Of course, each claim is different when it comes to damages: how much each individual is entitled to be compensated from that insurance policy.  This depends on a number of factors which is best determined when working with an experienced and successful West Virginia Auto Accident Attorney.  We always meet with people for free, whether or not they end up hiring us, and frequently assist people in coming up with a fair amount of compensation deserved.

“Small” personal injury cases in West Virginia

Many of the West Virginia personal injury cases which we handle could be described as “small” cases.  Cases where there were no catastrophic injuries.  There is a medium-trauma car accident, resulting in painful, but not immediately devastating injuries.  Sometimes people may think they are fine and uninjured at first, only to end up in the emergency room that evening with numbness, swelling, dizziness, or pain.  These are the types of cases where the insurance adjustors will contact those who have been injured in a car accident, and will try to devalue the person’s claim.

The insurance adjustors are trained to take actions which will directly result in the injury victim getting less from the insurance policy.  They will ask misleading questions which will be recorded and documented.  The result will be an answer or statement which was misunderstood and which severely limits the injured person’s ability to collect a fair settlement.  They may ask, “looking back, is there anything you could have done differently to avoid the accident”.  They will ask about injuries, and try to place limitations on the claim before the treating doctor has even made a diagnosis.  This is a practice which thrives on ignorance.  The best way to avoid it is through legal representation.

However, this brings up something else that the insurance adjustors do.  They manipulate the injury victims.  From day one, they make a point of telling the injury victims that they should not call a lawyer.  That all they will be doing is giving up a percentage of their settlement.  That their settlement will end up getting delayed.

This is pure manipulation and deceit.  Lawyers have to abide by a code of strict ethical regulations.  They cannot lie to you.  They have to  look out for your best interests.  Insurance adjustors are quite the opposite.  You have no ability to get their licenses revoked or suspended.  You are not even allowed to sue them for lying to you and misleading you.  They have an incentive to cause you to settle for less.  They have an incentive to keep you away from a personal injury lawyer.  Almost all West Virginia personal injury lawyers will meet with you for a free consultation about your circumstances.  If the one you called does not, then call someone else.  Personal injury lawyers are not the bad guys.  They help people, and at no up-front cost to the client.  Only if you agree to hire a lawyer, and sign an attorney client agreement to that effect, does a percentage get taken from your settlement.  And in that case, the lawyer has almost always provided or enabled a larger settlement than the insurance company was ever going to offer you before you had the ability to file a lawsuit.   Lawyers are also familiar with what the fair value of one’s case is.  They are trained in providing supporting documentation and proof, as well as in professionally presenting that information to the insurance company, and ultimately to a judge or jury.

In the end, in most cases, even though your legal fee is paid by a standard percentage of your settlement, you have taken that into consideration before accepting the settlement.  An ethical personal injury lawyer will never force a client into accepting a settlement.  If the client is not happy with his or her portion of the ultimate settlement proceeds, they always have the choice to proceed with the case towards jury trial.

So when the insurance company tries to manipulate you or someone you know over a personal injury claim, you need only take one step: call a West Virginia personal injury attorney (obviously it should be a personal injury attorney with a good reputation and a good track record).  We will meet with you for free.  There will only be a cost if you decide that you want us to take over your case.  Regardless of what the adjustor said, there’s no obligation, fee, or trick when you call a personal injury attorney because you have questions or need help.  A case is only “small” when the insurance company tricks you into believing that your injury is not worth a fair value.  Get a second opinion.

– John H. Bryan, a West Virginia personal injury attorney who helps people in “small” personal injury cases everyday.