Monthly Archives: May 2008

Interesting Look At Car Accident Insurance Claim File

There was an interesting post on the Maryland Injury Lawyer Blog today, where Ronald Miller, Jr., posted a redacted insurance claim file regarding a car accident/personal injury case. It serves as a great reminder of why car accident victims, in West Virginia and elsewhere, should contact a car accident attorney BEFORE they give that recorded statement to the insurance company, or BEFORE they accept a tiny settlement from the insurance company.

In case you didn’t know, by the time you start to recover from your injuries, the insurance company already has a ten page file filled with strategy and information designed to deny you the compensation that you rightly deserve. They probably already have recorded statements, from yourself and/or witnesses, and are handing them over to their attorneys to determine the best way to deny or lowball coverage for your injuries.

You can find the car accident insurance claim file here.

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

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New Study Shows Importance of Seat Belts, Nationally and for West Virginia

The Associated Press published an article yesterday, a copy of which appeared in the hard copy of the Register-Herald:

More than two-thirds of young drivers and passengers killed in nighttime car crashes aren’t wearing seat belts — deadly proof of what can happen when young people don’t heed parents’ pleas and authorities’ threats to “click it.”

Though seat-belt use actually is rising slightly nationwide, fatality figures published Monday offered a somber contrast as law enforcement launched its annual pre-Memorial Day drive to persuade Americans to buckle up.

Total belt use rose to 82 percent last year — from 81 percent in 2006 — the government said. Twelve states had rates of 90 percent or better, led by Hawaii and Washington. Only three were below 70 percent: Arkansas, Massachusetts and New Hampshire. West Virginia was ranked between 85% and 90%, which is well above the national average of 82%. But the study was hardly encouraging.

Sixty-eight percent of drivers and passengers between the ages of 16 and 20 who were killed in car crashes at night in 2006 were unbuckled, said the National Highway Traffic Safety Administration. During daytime, 57 percent of the young motorists and passengers who were killed were not wearing seat belts.

The problem isn’t just with teens. The percentage of unbuckled drivers and passengers who died at night is well up in the 60s through the age of 44. It declines to 52 percent for people 55-64 and 41 percent for those older than that.

The problem still remains however, that when you combine carloads of teens, with inexperience and poor judgment, the result is often disastrous, especially in West Virginia with our winding roads. I am reminded of a car wreck that took place on the border of Monroe County and Greenbrier County not too long ago, where a car load of teenagers were killed as the result of excessive speed, poor vehicle maintenance, and unbuckled seat belts.

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

Tragedy Often Strikes on Prom Night – 12 Tips For Teens Driving on Prom Night

A tragic story from the Associated Press, as carried by the Charleston Daily Mail:

A Northern California mother is dealing with a double tragedy after her daughter was killed during a weekend prom date and her son was severely injured in a car crash. Jennifer Carrigan and Steven Furtado were found dead Sunday by Carrigan’s mother at a house in Chester, about 150 miles north of Sacramento. Both were 18.

When told of his sister’s death, 20-year-old Billy Carrigan headed home from Berkeley. Shortly before 7 p.m. Sunday, just before he reached Chester, Billy Carrigan crashed his Toyota Tacoma pickup truck into a stand of pine trees along Highway 36.

Read the entire article here.

The article did not mention how or why the daughter was killed, but it is a tragic story and it is one of dozens each year that illustrate the dangers of teen drivers – especially on prom night. Sadly, every year Americans hear reports of prom-goers getting into car accidents as a result of drinking and driving. Mothers Against Drunk Driving has worked passionately since 1980 to lower these statistics. It’s been a successful campaign, according to the National Highway Traffic Safety Administration, which reports that drinking and driving among teens dropped 35% from 1990 to 2005.

Nationwide insurance company published a list of 12 tips for driving on prom night that every teen should read:

For teens:

– Always wear your seatbelt and make sure everyone in the car does, too.

– Concentrate and drive defensively. There are likely to be a lot of impaired drivers on the road prom night.

– Have directions to the dance — even drive by the location during daylight hours — if the prom is not held at your school so you know where you’re going.

– Understand that the average vehicle weighs 3,000 pounds. It may be easy to drive, but it’s still a heavy hunk of metal.

– Never allow someone who has been drinking to drive, no matter how confident the driver is about his abilities. It’s not worth the risk.

– Remember that tired drivers are dangerous, too. If you’re barely awake, you shouldn’t be behind the wheel.

– Call home to get a ride. No matter what time it is, parents would rather pick you up than have you drive in a dangerous situation.

– Take your cell phone to prom so you have one in case of emergency.

– Take a spare pair of comfortable shoes with you for driving so you don’t have to hit the brakes while wearing unfamiliar high heels or bulky dress shoes.

And for parents:

– Make sure you know where your child is going to be during prom and at the after-prom parties.

– Don’t allow too many prom-goers into one vehicle. (More passengers means more distractions.)

– Consider a limo or an adult driver to chauffeur students — someone who has more experience driving at night and someone who is not hopped up on prom night adrenaline.

Read the entire publication here.

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

Liability of Employers and Owners Whose Vehicles Are Involved in West Virginia Car Accidents

Some of my previous posts have covered topics of West Virginia car accident law by going over jury instructions that have been proposed by the West Virginia Supreme Court of Appeals for jury trials in car accident cases in West Virginia. In this posts I will go over some jury instructions – and hence West Virginia law – regarding situations where employees and owners of vehicles can be liable for the negligent or reckless acts of the person driving the vehicle. These are instructions on the law that are given to the jury by the judge after the trial, but prior to their deliberations. The purpose is to tell the jury what the law is, so that they can apply their findings of fact to existing West Virginia law.

Employer’s Liability for Employee’s Negligence

An employer is liable for all damages proximately caused by the negligence of his employee who is acting within the scope of his employment.

An employee is acting within the course of his employment when he is engaged in doing, for his employer, either the act directed by the employer or any act which can fairly and reasonably be deemed to be a natural, direct and logical result of the act directed by the employer. If in doing such an act the employee acts negligently, that is negligence within the course of the employment.

In order to recover against (name of employer), the plaintiff has the burden of proving by the greater weight of the evidence that (name of employee) was the employee of (name of employer), that (name of employee) was negligent while acting within the scope of his employment, and that this negligence proximately caused damage to the plaintiff.

Courtless v. Jolliffee, 507 S.E.2d 136 (W.Va. 1998)

Liability of Corporation for Acts of Employees, Agents, or Officers

A corporation acts by and through its officers, agent, and employees, and if you find that an officer, agent or employee of the defendant corporation, ___________________ was negligent in the performance of his duties, then such negligence is attributable to the corporation and considered negligence on the part of such corporation, including the failure to comply with applicable automobile and road safety laws.

Family Vehicles – a.k.a., the “Family Purpose Doctrine”

When the owner of a motor vehicle purchases and maintains an automobile for his family’s comfort, convenience, pleasure, entertainment and recreation, then any family member who uses the automobile for such purposes is regarded as the agent of the owner. Consequently, if a family member operates the automobile in a negligent manner the owner of the automobile will be liable for damages sustained by a third person which occurred as a result from the negligent operator of the vehicle.
Cole v. Fairchild, 482 S.E.2d 913 (W.Va. 1996)

A Defense to Employee/Owner Liability is Alleging the Driver was an “Independent Contractor”

If ___________ was acting as an independent contractor, then D________ has no responsibility for _________’s acts. If _______is an agent of D _______ , then ____________ is responsible for any of _________’s negligent acts. Whether or not ________is an independent contractor or agent depends on whether D__________controlled, or had the right to control, the work of _________. Control in this sense means the right to determine where and in what manner the work would be done. It does not matter that D___________ never actually exercised control over _________, as long as D_________ reserved to itself the right to do so.

If you find that D________ had the right to control the work of ___________, and then D__________ is liable for any negligent acts or omissions of ________’s employees, including their failure to comply with applicable automobile and road safety laws.

Paxtori. v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245, 252 (W.Va. 1990) Sanders v. Georae of Pacific, 159 W.Va. 621, 225 S.E.2d 218 (W.Va. 1976)

You can visit the Supreme Court’s website to view the jury instructions in full here.

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

School Bus and Car Collide in Greenbrier County

From the Register-Herald:

Yet another accident involving a school bus loaded with children, this time in Greenbrier County, WV.

A Greenbrier County school bus with seven children aboard collided with another vehicle Wednesday in what school officials called a “minor accident.”

Superintendent John Curry said the accident happened in the Ft. Spring area about 4:30 p.m.

“We had a bus going around a blind curve and the bus and the car side swiped,” Curry said. “Nobody was hurt and the seven middle school children aboard were all transported home by their parents, who lived close by.”

No citations were issued by police.

Its odd that the police did not issue any citations. One of the drivers had to have been left of center in order for them to have collided – assuming this was a two-lane road. Regardless, both are probably at fault. If you are going around a blind curve, you have to slow down and approach with caution, keeping as far as you can on your side of the road – especially if you are driving a school bus. Fortunately none of the children were injured. It amazes me how children come out of the school bus crashes with no injuries, despite the fact that these buses don’t even have seat belts (to my knowledge).

Read the full article here.

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

Hearse Leading Funeral Procession Involved in Head-on Collision in Beckley – Creates Unique Car Accident Law Issues

From the Register-Herald today:

5625D92B-A678-4A60-8076-49817289A193.jpg

A hearse from Ritchie & Johnson Funeral Parlor leading a funeral cortege was involved in a head-on collision Monday shortly after noon.
Rick Barbero / Register-Herald Photographer

A hearse leading a funeral cortege was involved in a head-on collision Monday shortly after noon, according to the Beckley Police Department.

Police said the Ritchie & Johnson Funeral Parlor hearse was traveling northbound around the 900 block of South Kana-wha Street when it was hit by a 1993 Chevrolet Cavalier driven by Amanda Bonds. Police did not release her age and hometown.

Police said Bonds was traveling south when her vehicle struck a 2007 Chevrolet Avalanche on its driver’s side. Bonds’ vehicle continued south before crossing the center line and hitting the hearse head-on.

The funeral procession was held up for about 30 minutes while the casket carrying the deceased was transferred to another hearse. All of the funeral procession vehicles were using headlights and emergency flashers en route to the cemetery, funeral home officials said.

Police said the accident investigation is ongoing, but citations were pending.

This is an awful situation to have a hearse involved in a head-on collision while actually leading a funeral procession. To those of us who are West Virginia car accident lawyers, this situation creates some extremely unique car accident law issues. For instance, citations are “pending,” but who is going to get cited? There will be several different insurance companies involved, as well as workers compensation. Liability will have to be determined between the three drivers involved. Lastly, given that the hearse was itself struck, there could potentially be some damages claimed by the family of the deceased occupant of the hearse, depending on the circumstances.

Read the full article here.

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

Drowsy Driving Leads to Many Car Crashes in West Virginia, Though Most Can Be Prevented

The AAA Foundation for Traffic Safety is a great resource for automobile safety and can be very useful to a car accident lawyer when researching specific causes of car accidents, such as drowsy driving. On their website, they have several FAQ’s that deal with drowsy driving in particular.

Drowsy driving is not just a problem in West Virginia. The National Highway Traffic Safety Administration (NHTSA) conservatively estimates that 100,000 police-reported crashes are the direct result of driver fatigue each year, resulting in an estimated 1,500 deaths, 71,000 injuries, and $12.5 billion in monetary losses.

Definitions of drowsy driving generally involve varying uses and definitions of fatigue, sleepiness, and exhaustion. For the purpose of the discussion at hand, drowsy driving is simply driving in a physical state in which the driver’s alertness is appreciably lower than it would be if the driver were “well rested” and “fully awake.”

The inability of a sleeping driver to try to avoid crashing makes this type of crash especially severe. Some studies have found people’s cognitive-psychomotor abilities to be as impaired after 24 hours without sleep as with a BAC of 0.10%, which is higher than the legal limit for DWI conviction in all US states.

I have included some of the more important FAQ’s from their website:

What are the warning signs of drowsy driving?

Some warnings signs you may experience that signify drowsiness while driving are:

The inability to recall the last few miles traveled,
Having disconnected or wandering thoughts,
Having difficulty focusing or keeping your eyes open,
Feeling as though your head is very heavy,
Drifting out of your driving lane, perhaps driving on the rumble strips,
Yawning repeatedly,
Accidentally tailgating other vehicles,
Missing traffic signs.
In fact, drowsy drivers sometimes drive so poorly that they might appear to be drunk. In a survey of police officers conducted by the AAA Foundation for Traffic Safety, nearly 90 percent of responding officers had at least once pulled over a driver who they expected to find intoxicated, but turned out to be sleepy (and not intoxicated).

What are the specific at-risk groups affected by drowsy driving?

The specific at-risk group for drowsy-driving-related crashes comprises people who drive after having not slept enough, qualitatively or quantitatively. If you’re tired and you’re driving, you are at risk. In general, individuals who are “most at-risk for being at-risk” of drowsy driving include:

Young People : Sleep-related crashes are most common in young people, especially those who tend to stay up late, sleep too little, and drive at night – a dangerous combination. A study by the National Highway Traffic Safety Administration and the State of New York found that young drivers are more than 4 times more likely to have sleep-related crashes than are drivers over age 30.

Shift Workers and People with Long Work Hours : Shift workers and people who work long hours are at high risk of being involved in a sleep-related crash. The human body never fully adjusts to shift work, according to the National Sleep Foundation. The body’s sleep and wake cycles are dictated by light and dark cycles, and generally will lead one to feel sleepy between midnight and 6 AM. For more information, see the National Sleep Foundation’s Sleep Strategies for Shift Workers.

People with Undiagnosed or Untreated Sleep Disorders : Approximately 40 million people are believed to have some kind of sleep disorder. Many different sleep disorders result in excessive daytime sleepiness, placing this group at high risk for sleep-related crashes. Common sleep disorders that often go unnoticed or undiagnosed include sleep apnea, narcolepsy, and restless leg syndrome. You can learn more about these and other sleep disorders by visiting the National Sleep Foundation web site.

Business Travelers : Business travelers struggle with jet lag, a common sleep disorder that causes sleepiness and negatively affects alertness. “Jet lag” as well as long work hours put these weary travelers at increased risk for sleep-related crashes.

Finally, it is important to realize that although these specific groups of people are statistically most likely to be involved in drowsy driving crashes, one who does not fall into any of these groups is by no means “immune” to drowsy driving. “Average drivers” who don’t happen to be under age 30, working the night shift, traveling for business, or suffering from sleep apnea are still at risk if they drive while fatigued.

What about coffee? Won’t that keep me awake?

Not necessarily. The “perk” that comes from drinking a cup of coffee may take a half hour or so to “kick in,” is relatively short in duration, and will be less effective for those who regularly consume caffeine (i.e., most people). If you’re very sleepy, and rely on caffeine to allow you to continue driving, you are likely to experience “microsleeps,” in which you doze off for four or five seconds, which doesn’t sound like long, but is still plenty of time to drive off of the road or over the centerline and crash.

Read the entire article here.

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