In this article, I wanted to set out some of the more common questions I receive from personal injury clients who are in car, auto or vehicle accidents and believe that they may have a personal injury claim. Probably the best way to do this is in a question and answer format as I have done below:
1. What damages or monies can be recovered in a car or auto personal injury claim?
A: As far as personal injuries, all of the following are recoverable in Virginia:
Lost wages or lost earning capacity damages; past and future medical expenses; permanent disability and impairment damages; humiliation; inconvenience; pain and suffering; and disfigurement and scarring.
Property damage related losses are also recoverable but typically are not brought as part of the personal injury action. As Virginia allows a separate claim for property damage losses such as damage to vehicles, damage to personal property, and those sorts of things.
2. Is there a limit on the amount that may be awarded by a judge or jury for personal injury damages arising from car accidents?
A: While Virginia does have some caps or limits on special types of damages that can be recovered, there is not a cap or ceiling on compensatory damages for personal injuries in car crashes. Compensatory damages are generally the types of damages or losses that are personal losses that are caused to the individual suffering the personal injury. On the other hand, Virginia does have caps or ceilings on “punitive damages” (also called “punishment damages”) which are not direct damages to the individual, but are damages that may be awarded in some limited circumstances to punish the party causing the personal injuries. Typically, punitive damage claims can only be made where a defendant is grossly negligent or commits injuries due to conscious disregard for human life.
3. If my car cannot be driven after a car accident in which I suffered injuries, am I entitled to a rental car from the person who caused the wreck?
A: This question falls under property damage losses, not really under personal injury losses. However, Virginia law has provisions that require a person causing the car crash to pay damages or provide reimbursement for a similar replacement rental car. Often, if the careless person causing the personal injury has insurance, the insurance company in Virginia will provide a comparable rental car for the period of time during which your vehicle is being repaired or for a reasonable period of time to negotiate compensation for a ” totaled” motor vehicle. You should talk to a Virginia personal injury attorney about all the ins and outs of the rental car statute.
4. Can I settle for the damage to my car but keep my personal injury claim alive separately?
A: Virginia law does allow for settlement of property damage while keeping the personal injury claim separate. However, you must always carefully review any release that is offered by an insurance company or careless party. Any question about whether the release is fairly worded, and whether it leaves open your personal injury claim, may require you to speak to a personal injury lawyer before signing such release.
5. How are lawyers typically paid to represent personal injury clients?
A: Almost every lawyer who handles personal injury in Virginia would take a personal injury case on a contingent fee. “Contingent” means that the lawyer is not paid a fee unless the lawyer recovers from the responsible party in most circumstances. The percentage of the contingent fee is negotiated between the attorney and the client. Virginia law requires that the client be ultimately responsible for any costs or court fees. Virginia law allows lawyers to advance the court costs on behalf of clients so the clients do not have to pay these monies out while the case is pending in most circumstances.
6. What is contributory negligence?
A: Contributory negligence is a very important concept in Virginia because Virginia is one of only a hand full of states in the United States that follows a very harsh rule on contributory negligence. The Virginia rule is that if a personal injury victim was contributorily at fault or contributorily negligent, the injured person may not recover from the careless person at all. Virginia’s courts have interpreted contributory fault (in motor vehicle crashes) to mean that if the personal injury victim is ten percent negligent, and the careless party is ninety percent negligent, the injured person can still not recover any damages. It is a fairly harsh rule that most states have abandoned, but Virginia and a few other states still follow the rule of law that contributory negligence may bar any personal injury recovery. Any lawyer accepting a personal injury case will look very carefully at whether the personal injury victim was free of negligence on their own part. You should consult with a Virginia personal injury lawyer if you have questions about contributory negligence because it is a term that has substantial legal significance based on many cases decided by Virginia’s Courts.