Category Archives: Liability

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.

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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.

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.

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

From the Register-Herald today:

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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.

Importance of Seat Belts in WV Car Accident Law

West Virginia, like almost every other state, has a mandatory seat belt law. Thus, there is a limited “seat belt defense” which means if you are injured in a car crash while not wearing a seat belt, and the injury was caused or made worse due to the lack of a seat belt, the amount of damages you can collect may be reduced.

In other words, you are “comparatively negligent” and therefore are partially responsible for causing your own injuries, even if you were not responsible for the accident itself. It is important to consult an experienced auto accident attorney for advice regarding your particular situation.

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

Comparative Negligence, Proximate Cause, and Intervening Causes in WV Car Accident Law

What is the importance of “comparative negligence”, “proximate cause”, and “intervening causes” in West Virginia Car Accident Law?

“Comparative negligence” comes into play when both parties have failed to act reasonably – for example, when someone speeding in dense fog hits another car that had no headlights on. In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person is reduced by one’s own degree of negligence. In the example above, the driver going too fast in the fog may be 60% negligent and bear 60% of the liability, while the driver without headlights may bear 40% of the negligence and be 40% liable.

“Proximate cause” is an act which sets off a natural and continuous sequence of events that produces injury. Without the act, no injury would have resulted. Any time you act, you start a series of natural and continuous events to occur (simple cause and effect, like when you touch the surface of still water and ripples are created). Responsibility for an injury lies with the negligent act that produced the injury. For example, suppose you throw a ball that rolls down a hill; after the ball rolls down the hill, a stranger picks it up and throws it through a window, causing the glass to shatter; the glass shards hit a woman, cutting her arm. In this example, although you caused the ball’s initial movement, your act is not the proximate cause of the injury to the woman sitting next to the window. The stranger’s act is the proximate cause of her injury, and he should be the one to pay for her medical treatment.

An “intervening cause” alters the natural and continuous series of events that follows. When an intervening cause is present, the natural chain of events has been changed due to the subsequent act of another, and the first actor may be relieved of responsibility for an injury. In the example above, the act of the stranger picking up the ball and throwing it through the window is an intervening cause which relieves you from the responsibility for injury which may have occurred as a result of your act. The responsibility shifts, and the stranger’s act becomes the proximate cause of her injury.

To bear responsibility for injury to others in a car accident, your negligent action (or failure to act) must be the proximate cause of the injury, without any intervening causes interrupting the natural sequence of events.

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

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.