Questions and Answers about pursuing a Personal Injury Claim in Virginia
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.
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.
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/).
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.
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.
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.
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/).
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.
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/).
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.
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.
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.
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The Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McLean, VA 22102
Legal Disclaimer: The above information is for general education purposes only and should not be construed as legal advice. Every case is different, and no general information fits all situations.