Questions and Answers about pursuing a Personal Injury Claim in Virginia
What should I do right after an accident, if I am injured?
If it is not your fault, call the police and report your injuries at the scene. Ask the other driver if he/she is alright and ask them what happened. Take pictures of the scene, the cars (before they are moved), and the other driver’s license and insurance information. Seek timely medical treatment for your injuries and tell the providers all areas of your body that are hurting.
If the accident is your fault, it may not be in your best interests to call the police and incriminate yourself. You should still take pictures of the cars, exchange information with the other driver, and seek medical treatment if injured.
What happens if my pain develops after the accident?
With soft tissue injuries it is common for the symptoms to come on hours sometimes days after the accident. Seek treatment as soon as you develop symptoms.
What type of medical treatment should I seek after an accident?
The type of treatment will be based on the nature of your injuries and recommendations from your treating healthcare providers.
For minor accidents, with no ongoing symptoms, treatment of strain injuries at urgent care or general practitioner will usually suffice. However, if you have ongoing symptoms, you should seek the guidance of an orthopedic doctor and explore whether physical therapy is necessary. If you have neurological symptoms (headaches, radiating pain, concussion) you should get evaluated by a neurologist. Insurance companies often discount treatments from non-medical providers like chiropractors, acupuncturists, or massage therapists.
What if I do not have health insurance?
You may have medical coverage through your own car insurance (Med Pay or Personal Injury Protection), so you should investigate that possibility. If you have no source of coverage, some providers will treat you on the basis of an assignment and authorization, where your doctor will wait until the end of your case to collect the bills. Most experienced personal injury attorneys have doctors that they can recommend, who will offer these types of services.
How long do I have to pursue a personal injury claim in Virginia?
The statute of limitations is two years in Virginia. However, it is unwise to wait until the last minute to pursue a case. The best practice is to retain counsel early and put the insurance company on notice of the claim. In addition, depending on the type of claim you are pursuing, you may have to provide your insurance company with notice before you file a lawsuit. To review Virginia law on statutes of limitations, click below. (https://law.lis.virginia.gov/vacode/title8.01/chapter4/section8.01-243/).
How long does a personal injury case take to pursue?
In simple cases where an insurance company accepts liability and negotiates in good faith, your case could be resolved in 6 months or less (from when you finish treatment).
Where an insurance company refuses to put a fair offer on the table and forces you to file suit, you have two options:
Option one, if your case has value less than $50,000, we can file in General District Court and obtain a trial date in 4 to 12 months, depending on the jurisdiction.
Option two, if your case has value above $50,000, the case will be filed in Circuit Court and you should expect to wait from 8 to 16 months to get a trial date, depending on the court.
At the Law Office of Jeffrey J. Downey, we submit detailed demand letters to insurance companies in an effort to avoid litigation. As Mr. Downey is a former insurance defense lawyer, he knows how to motivate insurance companies to settle before suit is filed. As a Fairfax personal injury lawyer, Mr. Downey handles cases throughout Virginia, Maryland and the District of Columbia.
What is my case worth?
Everyone’s case is unique, so it’s impossible to answer this question without knowing the details of your injuries, treatment, and financial losses. An insurance company will typically evaluate your case on the following factors:
- Severity of the accident, were the cars totaled or significantly damaged
- Nature of treatment. Was it timely and consistent? Insurance companies often discount treatment by chiropractors or non-medical treaters.
- Amount of medical bills and future expenses
- Extent of pain and suffering
- Lost wages
- Permanency of injuries, scaring and future treatment.
In a simple soft tissue case where there are no broken bones, disc injuries or neurological symptoms or ongoing symptoms, an attorney will shoot for three times your medical bills (for pain and suffering) plus lost wages.
By example, if you had a case involving a neck/back strain with $7,000 in medical bills for initial treatment and physical therapy. Assuming no ongoing symptoms, a reasonable settlement range would be between 2 and 3 times your medical bills, or between $14,000 and $21,000 dollars.
Do I have to hire an attorney to pursue my case?
Not all personal injury cases require the services of an attorney. If you have a few thousand dollars in medical bills or less and limited treatment, you can try to resolve the case on your own. You will need to provide the insurance adjustor with your records, bills and proof of other financial losses. I have helped many individuals negotiate their own settlements and do not charge them for my time. So, call me if you want to explore this option.
If I hire an attorney, what will it cost me?
Most attorneys charge 1/3 contingency fee, plus costs. Some Fairfax personal injury lawyers charge as much as 40%. My office charges a 1/3 fee and we will advance costs on most personal injury cases. Ask your attorney for a copy of his fee agreement before you agree to let him represent you.
Can litigation costs diminish my net recovery?
Depending on the complexities of your case and need for experts, taking your case to verdict could be expensive. If you have an orthopedic doctor and neurology expert, taking your case to trial could cost between $20,000 and $30,000. And if the insurance company hires doctors to examine you and render contrary opinions, you attorney may need to spend money to take their depositions. For complex cases it is important that you factor in future costs before you reject the insurance company’s last offer.
Are there options to reducing my litigation costs in Virginia.
One way to reduce litigation costs is file your case in General District Court where you can obtain the admission of medical records and bills with affidavits. You will also get a quicker trial date, but your case will be decided by a judge. For more information on filing claims in GDC, review this link. (https://law.lis.virginia.gov/vacode/16.1-77/)
Should I handle my vehicle’s property damage claim?
Most people will resolve their property damage claim long before they pursue their personal injury claim. There is generally no problem in coordinating the repair of your vehicle by yourself. Make sure you notify your own insurance company of the accident and be cautious about giving recorded statements. Keep in mind that if it turns out that the other driver did not have insurance (or that you were at fault), your own insurance company may be the one responsible for paying out on claims. Make sure any release that the insurance company asks you to sign does not include personal injury claims.
When should I give my insurance company notice of an accident?
You should call you insurance company the next day or as soon as practicable. In that call you should verify the types of coverage you have, including property damage, rental car benefits, personal injury protection or med-pay and uninsured motorist protection.
Should I give a recorded statement to my insurance?
I typically advise potential clients to speak to an attorney before they give a recorded statement. If you want to speak to an attorney free of charge before giving such a statement, call my office.
Keep in mind that to take advantage of your own insurance company’s benefits, you may have to cooperate in submitting proof of loss that includes a statement. For that reason, you should never outright refuse to give a statement; simply explain that you would like to delay it until you had a chance to speak to a lawyer. If it’s a simple accident, like a rear-ender, you could simply give a statement about the accident; explain that you were injured and defer detailed questions about the nature of your injuries.
If you do give a recorded statement to an insurance company, you can request that the statement be provided to you or your attorney. Va. Code § 8.01-417(A). Under Virginia law a recorded statement made without the other party’s consent is not admissible in evidence unless the statements made constitute the admission of a crime. Link:
Virginia law also limits the use of recorded statements in personal injury or wrongful death cases. Va. Code §8.01-404 prohibits any ex parte statements in writing, other than a deposition of a witness, as to the facts or circumstances of the negligence complained of, or to contradict him as a witness in the case.
What are PIP or Med Pay Benefits?
PIP (personal injury protection) or Med Pay is a type of coverage available on many policies that pays for your medical bills. In Virginia, you will typically process a Med Pay claim through your own insurance company. Get copies of your itemized bills because you can claim med pay benefits for the full amount of your medical bills, even if they are covered by your health insurance. This is important, as your health insurer may later assert a lien against the bills they paid, seeking to recover those charges. To review Virginia law on Med Pay claims, click below. (https://law.lis.virginia.gov/vacode/title38.2/chapter22/section38.2-2201/).
What is a lien for medical bills and how do I know if one will apply to my case?
Some health insurance companies will claim that they are entitled to be reimbursed for the bills they paid from your personal injury lawsuit. Whether a lien applies will generally depend on the language of your health insurance policy and whether it is governed by ERISA or federal law. Also, if you pursued a workers compensation claim for injuries from an accident, your employer will have a lien. See Va. Code § 65.2-309 for more information on liens.
When should I hire an attorney?
You should speak to an attorney right after an accident to educate yourself on what you need to do to protect your rights. Our Fairfax personal injury office will speak to you about your case in an initial consultation, without pressuring you to sign a fee agreement.
Should you decide to retain an attorney, you should secure his services early in the process. He can help you secure important evidence or witnesses and evaluate your treatment records and insurance sources. He can also help assure that you have you bills paid through the right insurance source and help address any lien issues. Waiting a long time to hire an attorney will only increase the chance that your case gets put in litigation, where time and costs will erode your final recovery.
What is uninsured motorist or a UIM Claim?
This is a claim against your own insurance company. If you get into an accident with another driver who is uninsured or who has low limits, your own insurance company can provide coverage up to your available limits. The rules for pursuing UIM claims can be complicated, and you may be required to give your UIM carrier notice and an opportunity to settle your case before you file suit. Pursuing a UIM claim can be complicated, and you should consider retaining an attorney to pursue such a claim. Virginia’s statute on UIM Claims can be found here. (https://law.lis.virginia.gov/vacode/38.2-2206/).
What are insurance policy limits, and can they impact my recovery?
No matter how seriously you are injured, you cannot recover more than the insurance policy limits, unless you go after the at-fault driver’s personal assets. That can be challenging, as he/she can file bankruptcy and discharge that debt. And the insurance company will not settle with you in a claim against the driver, unless you release him personally.
Insurance typically travels with the car, so your primary insurance in a personal injury case will be that insurance covering the car that caused the accident. If the other driver did not have any insurance or had low policy limits, you can look to your own policy for UIM coverage. Drivers in Virginia are required to carry a minimum of 25,000 liability coverage for personal injury. Link to statute: (https://law.lis.virginia.gov/vacode/46.2-472/).
How do I find out my applicable insurance coverage?
To find out the insurance coverage for the driver who caused the accident, you can start by first asking him what those limits are. Drivers are obligated to supply the name of their insurance at the scene of the accident, but there is no harm in asking what coverage they have. If the police arrive and do a report, that information will typically be included on the police report, but will not disclose the insurance limits of the adverse driver.
Insurance companies are required to disclose the address of the at-fault driver as well as the policy limits. However, the policy limits disclosure is contingent on the injured party showing that he has total medical bills and lost wages that equals or exceeds $12,500. If the victim is killed from the accident (and has no medical bills), the estate may still discover the policy limits. To review the statute, click on the link below: (https://law.lis.virginia.gov/vacode/title8.01/chapter14/section8.01-417/)
In addition to finding out the limits for the driver who caused the accident, you should check your own insurance coverage for Med Pay and Uninsured Motorist insurance. Your insurance company or agent will freely disclose this information to you after an accident is reported.
Are some insurance companies easier to deal with than others
Yes. GEICO and USAA generally have reputations for fair dealings when it comes to handling plaintiff’s personal injury claims.
Other insurance carriers, like Allstate, State Farm and MAIF, have reputations in the legal community as being difficult to deal with on the Plaintiff’s side, often low-balling Plaintiffs, especially where there is minimal property damage to the vehicles. Insurance companies often think that if the damage to the vehicle is minor, the same should be true of the occupants of the vehicle. This is a common fallacy because it’s the vehicle that transfers kinetic energy to the occupant. Where the vehicle’s body or bumper crumples, much of the kinetic energy is absorbed by the vehicle and not passed on to the occupant.
How do I move forward with selecting an attorney and pursuing my case?
Start by researching attorneys in your state who have actual trial experience, proven case results (https://www.jeffdowney.com/case-results/) and glowing client testimonials. ( https://www.jeffdowney.com/client-testimonials/) Then contact our office for a free consultation, 703-564-7357 or 703-564-7336.
Attorney Jeffrey Downey has over 30 years of trial experience and started his career defending insurance companies. He has handled complex personal injury and malpractice cases in both state and federal courts, and is admitted to practice in Virginia, Maryland and D.C. Unlike a big firm where your case may get pushed down to young associate, Mr. Downey handles every case personally. Read what his former clients have to say: (https://www.jeffdowney.com/client-testimonials/)
About Jeffrey Downey:
The author, Jeffrey Downey, has over 30 years of litigation experience and started his career as a defense attorney. He has established numerous favorable legal precedents in his field, and he also teaches other Virginia attorneys how to handle complex malpractice cases. Mr. Downey is admitted to practice in the states of Virginia, Maryland and Washington D.C.
Call our office today for a free consultation.
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McLean, VA 22102