Category Archives: Damages

Who Pays for Property Damage and Medical Bills after a Car Accident in WV?

Who pays for property damage and medical bills after a car accident in WV?

The answer to this question depends on your own financial resources and the circumstances of the accident.

Typical sources of compensation for damages sustained in a car
accident include:

(1) Your Car Insurance Company – Whether your insurance will compensate you for your loss depends on your insurance contract. In many contracts, there are considerations for both the first party (you and your vehicle) and any third parties (passengers, other drivers; and their property). Some contracts provide medical coverage for personal injuryof the insured and your passengers. In West Virginia, this is called “med pay,” and usually ranges from about $5,000 to $10,000. It is also important to note that any medical payments made by “med pay” will have to be paid back if you end up receiving a settlement or judgment. The policy may pay for collision repairs and possibly for a car rental while your damaged car is being fixed.

(2) Your Health Insurance Provider – You may have private health insurance or belong to an HMO. In the event of a personal injury from a car accident, you can ask your health insurer to pay for medical treatment. Sometimes, private health insurance plans or HMOs require you to seek recovery from your auto insurance company before the health organization will pay or provide medical treatment. Like “med pay,” in West Virginia, your health insurance will have a lien on any future settlement or judgment that you obtain. So it is important to realize that any future recovery that you receive will automatically subtract these subrogate amounts before you receive a dime of the recovery.

(3) Other People Involved In the Accident – In addition to the three sources above, you may be able to seek recovery from other people who were involved in the accident. West Virginia is an “at fault” states, so this option depends on how fault is apportioned among the other driver(s). This is also subject to the comparative negligence analysis (see my prior posts regarding “fault”). If you are “at-fault” for an accident that occurred in a “fault” state, contact your insurance company. It is the company’s job to defend you in court or to negotiate a settlement.

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


What Compensation Can I Get After a Car Accident in West Virginia?

What kind of compensation can I qualify for after a car accident?

Millions of car accidents occur each year, injuring people and damaging property. Where a matter is very minor, many people file reports with the police, tell their insurance company, and pay the losses out of their own pocket. But all too often the matter is not minor, and can cost you significant amounts of money, time, inconvenience, and pain.

If you’re injured, you’ll likely require medical attention and may need rehabilitation, both of which can be expensive. A car accident may cause you to lose income or have to use sick leave because of injury, treatment, and recovery. You might have damage to your car. While your car is being repaired, you may have to rent another car. You may lose the ability to perform various activities of normal daily living, for a while or long term. You may endure pain and suffering.

You may seek recovery after an accident to “make you whole again.” You should be compensated in a manner that, as best as the law can arrange, places you back in the same position as you were before the accident.

In addition to normal compensatory damages, in extreme cases punitive damages may be available, if the injury was the result of the other driver’s reckless or irresponsible behavior, or if the accident or the injury was caused by something about the car that is dangerous — a defect—- that the manufacturer should have corrected.

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

Determining Fault in West Virginia Car Accidents

Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related posts listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. Some states, such as Virginia, still follow this harsh rule.

Other states, such as Florida, have adopted a rule known as pure comparative fault, where if an injured person is partially at fault for causing his own injuries, his damages are reduced by his percentage of fault.

West Virginia has proportional comparative fault, which is somewhat of a mix between contributory negligence and pure comparative fault. In West Virginia, even if you are partially at fault for the accident, you can still recover damages as long as you are not more than 50% at fault for the damages (some states use 51%). If the person is under 50% at fault, then his recovery will be reduced by whatever percentage he contributed to the injuries (i.e., the accident).

Fault can be determined in several different ways. Initially, it will be up to the insurance adjustor to determine the proportion of fault. Obviously, a car accident victim should be very leery of accepting this determination. An experienced car accident attorney will have the knowledge, expertise and skill to negotiate with insurance adjustors at this stage for the best possible apportionment of fault, and hence the best possible settlement. Beyond this point, it will be up to a jury to determine fault, at which point there obviously must be a car accident attorney involved, preferably one who is experienced and skilled at convincing the jury that fault properly lies with the other party.

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

How Long Will My West Virginia Car Accident Case Take And What Should I Expect?

This is usually a question I get from every client. Most clients ask this question hoping that my reply will contain a specific and short period of time. The answer always will have to be “it depends.” However, it almost never is a quick process. It almost always is going to depend on a number of factors, including the specific injuries suffered by the client, and his or her treatment, court scheduling and the particular issues in the case. The general process is usually the same:

INVESTIGATION: Any car accident case should be extensively investigated before the case is every filed. This includes obtaining all medical records regarding the client’s injuries and relevant medical history. The medical records will establish the basis of your medical damages. The investigation will also establish the liability of the parties to the car accident. In other words, which driver was at fault? If both drivers were partially at fault, which driver was more than 50% at fault? This includes questioning witnesses, examining the reports and statements, and hiring experts to review the facts of the accident. All of this evidence must be compiled to present at the trial of the case.

DEMAND: After the investigation is complete, and after the client has reached MMI, or maximum medical improvement, a demand is usually submitted to the other driver’s insurance company. This will include all of the relevant medical records and medical bills to establish damages, and should also include any other documents establishing other damages, such as lost wages, future lost wages, pain and suffering and other expenses. Sometimes cases are settled prior to filing a lawsuit. Sometimes however, the parties are unable to agree on liability or amount of damages, and the Complaint must be filed.

FILING: The lawsuit, called the Complaint, is drafted and filed by your attorney in the appropriate West Virginia Circuit Court. Once the case is filed, the other party is summoned to file an Answer. The other party’s insurer will have either a private law firm, or their own employees who are attorneys (in effect many insurance companies, such as Nationwide or State Farm, have their own law firms in West Virginia, but they call them “employees”) file an Answer to the Complaint. The Court will then file a Scheduling Order (the parties do have some say in the general dates used by the court) establishing the discovery deadlines and then the trial dates.

DISCOVERY: Discovery is the fact-finding process by which attorneys for plaintiffs and defendants formally investigate the claims and defenses of the case. This will include written discovery, such as interrogatories (written questions), requests to produce documents and/or things, and requests to admit certain facts. The various parties must answer all these forms of written discovery under oath. Discovery also includes depositions. Depositions are formal proceedings in which parties and/or witnesses are sworn under oath and the attorneys involved in the case are given an opportunity to question the witness. These proceedings are always recorded by a court reporter that will prepare a written transcript of the questions and answers. This transcript can be used at trial in different ways depending upon the particular state rules. In every court, the transcript can be used to “impeach” a witness if he or she gives a different answer at trial than in their deposition.

MEDIATION: Either by court order, or by agreement, the parties may agree to mediate the case at some point before trial. Mediation is an informal process where both sides meet with a mediator, a neutral person, usually an attorney. The mediator works with the parties to try to reach an out-of-court settlement. If successful, the case ends at this stage. Of course, the parties can agree to a settlement without the need for mediation, although in West Virginia car accident cases, mediation is a common means of resolving meritorious cases.

TRIAL: If the parties cannot agree to a settlement prior to the trial date, the case will be tried, almost always to a jury. The number of jurors in West Virginia car accident cases is 6. Other states use either 6, 9 or 12. The jurors must be unanimous in their verdict. The jury’s job is to decide issues of fact. The judge will decide issues of law. The trial will proceed through the steps of jury selection, opening statement, plaintiff’s case, defendant’s case, rebuttal, closing arguments, jury instruction and jury deliberations. Once the jury reaches a verdict, the judge will, in most cases, enter that verdict as a judgment. Either party may file post-trial motions challenging the verdict. Once the judge has ruled on these motions, the judgment is final. Once the judgment is final, either party may appeal the decision for any one of numerous reasons. However, most successful appeals are based upon assertions that the judge has made an error in a legal ruling, not simply that the jury’s decision was wrong.

The entire process, from beginning to end, can take several years and cost thousands of dollars. Because of this, an experienced lawyer will carefully screen cases, proceeding only on cases that he believes are supported by the facts and the law.

– John H. Bryan, West Virginia Car Accident Attorney

Girl Hurt in Wreck Awarded $1.25 Million

From the Charleston Gazette:

Girl hurt in wreck gets $1.25 million

By Andrew Clevenger
Staff writer

After a four-day trial in Kanawha Circuit Court, a jury awarded more than $1.25 million to a Scarbro girl who was injured when a truck ricocheted off another truck and pinned her leg against a power pole in 2004.

Stefanie McKinney, now 14, needed 720 square centimeters of skin grafts on her leg, said her lawyer, Chad Love.

“The scarring was just unbelievable,” he said.

The jury’s verdict included $250,000 for pain and suffering, $200,000 for mental and emotional distress and $550,000 for disfigurement. In addition, the jury awarded $257,858.52 to cover McKinney’s medical bills.

McKinney was standing on a corner in Oak Hill when a 1997 Ford Ranger truck driven by John Anderson collided with a 1994 GMC truck driven by Jimmie Souder, according to the lawsuit she filed in 2006. After the impact, Anderson’s truck pinned her leg against the pole.

The jury found that Souder was 100 percent liable for the accident, and Anderson was not negligent.

Beckley lawyer Tim Hayes, who represented Souder, could not be reached on Friday.

Charleston attorney Andy Brison, who represented Anderson, said he was glad that the jury had concluded that his client was not at fault.

“It’s a tragic case. This little girl was standing there advertising her mother’s yard sale, and she gets hit like that,” Brison said.

McKinney impressed Brison as the kind of person who refused to become a lifelong victim.

“She had a really good recovery,” he said, noting that by the spring of 2005, she was playing softball, even making the all-star team. “As her dad said, she worked her butt off to get into that shape, and I agree. She’s just not going to let this get her down. She doesn’t seem like the kind of kid who would do that.”

Judge Paul Zakaib Jr. presided over the case.

City of Beckley Sued Twice in Same Day for Injuries

From the Beckley Register-Herald this morning:

The city of Beckley was confronted with two lawsuits in the same day, with the plaintiffs in each case seeking a jury trial and no less than $300,000 in damages, according to documents filed Tuesday in the Raleigh County circuit clerk’s office.Andrea Erskine, an Oak Hill resident, is represented by Lewisburg attorney Steven Hunter. According to Erskine’s complaint, she and Randall Erskine were driving north on South Fayette Street in Beckley on May 30, 2006, when a city dump truck “heavily laden with hot asphalt” crossed the center line of the street and struck Erskine’s 2004 Toyota 4-Runner head-on.The Toyota was purportedly “shoved and crushed with great force” into an embankment. The lawsuit contends that Ernest Oliver Dillard, a city employee and driver of the truck, was cited by Beckley police for failure to maintain control. His alleged crossing of the center line was illegal, negligent and careless, Hunter argues.Due to the accident, Erskine states that she has suffered from various injuries, strains and sprains. Since the accident, Erskine maintains, she has experienced “severe headaches, neck pain, mid-back pain and dizziness,” among other health problems.She is asking for $300,000 in damages. The case has been assigned to Circuit Judge H.L. Kirkpatrick.The other suit was filed by Beckley attorney John Wooton on behalf of four plaintiffs — Jason Golden, Emily Golden, Gracie Golden and Noah Shrewsbury. Each plaintiff is requesting $100,000 in damages from the city. With the exception of Shrewsbury, a Beckley resident, the other plaintiffs hail from Wichita, Kan.According to Wooton’s complaint, the city “failed to take steps to either make the area safe or warn the plaintiffs and others of the dangerous conditions” at the Beckley Exhibition Coal Mine. Such factors, Wooton said, “caused the transport car to crash into the access door, causing the plaintiffs to suffer the injuries and damages herein described.”Shrewsbury has reportedly suffered from injuries to his head, hand and back, along with “great emotional distress and mental anguish, physical pain and suffering, annoyance and inconvenience,” the suit alleges. The three Goldens are also said to have endured various bodily injuries.That case has been assigned to Circuit Judge Robert Burnside.

Note: The first case described in the article above, regarding the car accident, presents a common problem in car accident cases: damages. In the above case, the injury victim’s injuries are described as “various injuries, including strains and sprains . . . [and] severe headaches, neck pain, mid-back pain and dizziness . . . .” Injuries such as these are extremely difficult to prove and to quantify into concrete compensatory damages. Thus, although the injury victim actually does suffer from his injuries, to a certain extent there is room for the insurance companies to argue that there really is no damage there, that there is no way to actually prove that the person is suffering the pain, headaches, etc. The end result is that although liability is not an issue – the other driver was cited for careless driving – the injury victim may not recover very much for his injuries. However, there is always room for persuasive lawyering….” – John H. Bryan, West Virginia car accident attorney.