Automobile Accidents

December 1, 2016

Government Immunity in Virginia Personal Injury Lawsuits

Due to its proximity to the nation’s capital, Virginia sees a higher-than-average number of lawsuits with government entities, officials, or employees being named as defendants. That being the case, it is important for personal injury plaintiffs to understand the concept of governmental immunity and how the legal doctrine can come into play in a personal injury case.

Governmental Immunity Acts to Protect Government Employees in Some Situations

Under the long-standing doctrine of governmental immunity, a state or local government cannot face legal liability for the acts of its agencies or employees unless it consents to the lawsuit. Statutory law outlines some situations in which governments automatically consent to lawsuits brought against them, such as in cases of willful or intentional misconduct. However, in cases involving acts of negligence, government agencies will generally not consent to be named as a defendant.

This is where the doctrine of government immunity becomes complicated. Immunity only attaches to acts that are considered discretionary in nature. For those other acts that are ministerial, meaning there is a certain way that the act is supposed to be carried out, government immunity will not attach. This is where much of the litigation takes place in many lawsuits brought against government defendants. A recent case illustrates this point.

October 12, 2016

What Happens When an Insurance Company Acts in Bad Faith and Refuses to Settle a Case?

by Sidney Schupak, Esq.

Motorists in Virginia are required to carry a certain amount of auto insurance in order to legally operate a vehicle on any public road. In theory, this prevents an uninsured motorist from causing an accident that results in medical bills that he or she cannot pay. However, insurance companies are for-profit enterprises that may not always have the accident victim’s best interests in mind. As a result, Virginia law allows an accident victim to pursue a bad-faith claim against an insurance company that refuses to settle a claim without a good reason.

Virginia Bad-Faith Claims

In Virginia, the applicable statute that governs bad-faith insurance claims is Va. Code § 8.01-66.1. The statute explains that an insurance company that fails to settle a claim out of bad faith can be ordered by a court to pay the accident victim any amount due, plus interest, as well as a reasonable fee for attorney’s fees and other expenses. In some cases, an insurance company that refuses to settle in bad faith may become liable for amounts above and beyond those outlined in the insurance policy. Importantly, the burden is on the accident victim to prove that the insurance company acted in bad faith.

A Recent Example of Alleged Bad Faith

In the case, Holloway v. Direct General Insurance Company, the plaintiff was injured in a low-speed auto accident occurring in a parking lot. The facts leading up to the accident were in dispute. Holloway, the plaintiff, claimed that the accident was Sykes’ fault, and Sykes, who was insured by the defendant insurance company, claimed that the accident was Holloway’s fault.

October 4, 2016

Supreme Court of Virginia Finds Auto Maker Has No Legal Duty to Make Soft-Top Convertible Capable of Withstanding Rollover Accident

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Virginia issued an interesting opinion in a product liability case involving a plaintiff’s claim against an auto maker that the soft-top convertible she was operating during a rollover accident failed to protect her from injury. The case, Holiday Motor Corporation v. Walters, was ultimately decided in favor of the defendant auto maker because the court determined that there was no legal duty to create a soft-top convertible that was capable of withstanding the force of a rollover accident.

The Facts of the Case

Walters, the plaintiff, was driving her 1995 Mazda Miata. The car was a soft-top convertible. She was driving it on a two-lane highway behind a pick-up truck when she noticed a large object fall off the back of the truck. She swerved to avoid hitting the object and ended up rolling the vehicle.

When the car came to a stop, it was upside down and partially leaning against a tree. The roof of the convertible had caved in, and as a result Walters sustained serious back and neck injuries. She filed a product liability lawsuit against the manufacturer of the vehicle. The argument she made was that the auto maker’s failure to manufacture the soft-top so that it would protect the occupants of the vehicle was a breach of the implied warranty of merchantability.

July 27, 2016

Appellate Court Extends Liability in Car Accident Case to Adult Who Knowingly Allowed Minors to Consume Alcohol on Her Watch

by Sidney Schupak, Esq.

Earlier this month, a Maryland appellate court issued a landmark decision involving how far liability can extend in a case in which an adult knowingly allows a minor to consume alcohol, which later contributes to a fatal accident. In the case of Kiriakos v. Phillips, the court held that any adult who knowingly allows minors to consume alcohol may be held liable in a negligence action for any injuries sustained related to the minor’s consumption of alcohol.

The Facts of the Case

Kiriakos v. Phillips was actually two cases consolidated on appeal because they presented very similar issues. The companion case, Dankos v. Stapf, illuminates the issue presented to the court in a simple manner. Dankos was at a friend’s house drinking. When Stapf, the friend’s mother, came home, she asked some friends to leave but allowed a number of them to stay. Several of the friends who were permitted to stay were underage. The teens were drinking in the garage while Stapf was in the kitchen. The evidence presented at trial indicated that Stapf knew they were drinking, went to check on them several times, and even declined to do anything after her daughter expressed concern that several of the teens might be driving in their intoxicated condition.

On the next morning, while still intoxicated from the night before, Dankos and a friend left the Stapf house and were tragically involved in an accident. Dankos was killed in the accident, and his parents filed a negligence lawsuit against Stapf, arguing that her negligence contributed to their son’s death.

July 13, 2016

Court Declines to Extend Government Liability in Fatal Motorcycle Accident Case

by Sidney Schupak, Esq.

Generally speaking, governments and government agencies are immune from personal injury lawsuits. However, there are several very important exceptions. First, a government can always consent to be named in a lawsuit if, for example, it believes that doing so is in the best interest of the public. There are also some situations in which a government can statutorily waive immunity, meaning that the legislature determines, in advance, when governments should be held liable, and it can codify these situations in various state statutes.

Another method of getting around government immunity is showing that the allegedly negligent act was a “ministerial” task, rather than a “discretionary” one. To be sure, the distinction between ministerial and discretionary tasks can be slight and is often confusing. But at its most basic level, the difference between the two is that a discretionary task is one that the government can decide how to carry out. A ministerial task is one that is routine and leaves the government no discretion in how to carry out the task. A recent case illustrates the distinction.

Mississippi Transportation Commission v. Adams

Adams passed away after crashing his motorcycle on a Mississippi highway that was under construction. According to the court’s written opinion, Adams accidentally entered a construction zone and then, as he attempted to exit the zone, lost control on some uneven pavement. His estate filed a wrongful death lawsuit against the government agency in charge of maintaining the highway. The allegation was that the road lines leading up to the construction zone were confusing to motorists, permitting them to enter the zone inadvertently.

July 6, 2016

West Virginia Supreme Court Reverses Lower Decision Granting Accident Plaintiff a New Trial

by Sidney Schupak, Esq.

The Supreme Court of Appeals of West Virginia recently released an opinion overruling a lower court’s decision granting a rear-end accident plaintiff a new trial on the issue of a knee injury that he had allegedly suffered as a result of the defendant’s negligence. The plaintiff had been awarded a jury verdict for some of the injuries he suffered in the accident, although the jury declined to attribute his knee injury to the crash, instead appearing to accept the defendant’s argument that the knee injury was the result of a previously existing condition unrelated to the accident. As a result of the state high court’s ruling vacating the new trial order, the plaintiff will be unable to receive compensation for his claim for damages resulting from the knee injury.

The Defendant Admitted Fault for the Accident that Injured the Plaintiff

The plaintiff in the case of Harnish v. Corra was struck from behind by a vehicle driven by the defendant as he waited to turn into his place of employment. According to the facts discussed in the recent appellate opinion, the plaintiff alleged to have suffered injuries to his neck, back, and knee in the collision. The defendant admitted he was at fault for the crash, but after the plaintiff filed a personal injury claim against him, the defendant denied that the plaintiff’s alleged knee injuries were caused by the accident.

Evidence at Trial Showed a Dispute as to the Cause of the Plaintiff’s Knee Injury

At a trial on the plaintiff’s personal injury claim, the plaintiff presented the testimony of the doctor who performed a knee surgery after the accident. The plaintiff’s expert opined that his knee injury was the result of a condition that was aggravated by the car accident. In response, the defendant called a medical expert to testify that the plaintiff’s knee injury was caused by long-term wear and tear, and it was not directly related to the accident. After the close of evidence, the jury awarded the plaintiff damages for his neck and back injuries but declined to award any damages based on his knee injury. The plaintiff then requested a new trial, arguing that the jury’s verdict was unsupported by the evidence that the car accident aggravated his knee condition, whether it existed before the crash or not. The trial court granted the plaintiff a new trial.

April 26, 2016

State Supreme Court Finds Restrictions on Seat Belt Evidence Unconstitutional

by Sidney Schupak, Esq.

The Arkansas Supreme Court recently issued a ruling that struck down a state statute restricting the admissibility of seat-belt non-use evidence in an auto accident lawsuit, finding the rule was unconstitutional under the Arkansas constitution. The Arkansas ruling is demonstrative of recent changes in several states, where courts are moving toward admitting such evidence in civil negligence lawsuits, although the laws continue to vary between states and based on the nature of the proposed evidence.

The plaintiff in the case of Mendoza vs. WIS International was a passenger in a vehicle that was being driven by the defendant when the defendant allegedly fell asleep at the wheel, causing an accident resulting in the plaintiff’s injuries. The plaintiff filed a personal injury lawsuit against the defendant and his employer, seeking damages for the injuries that were suffered in the crash. Once the case was filed, the defendant attempted to admit evidence that the plaintiff had not been wearing her seat belt when the crash occurred, thus contributing to the cause of her injuries and barring her recovery as a matter of law.

Comparative Negligence May Prevent a Plaintiff From Recovering Damages

Many jurisdictions, including Maryland, Virginia, and the District of Columbia, have laws that can prevent an accident victim from recovering damages against a negligent driver if the victim’s negligence contributed to the cause of their injuries. These “contributory negligence” statutes are used to prevent victims from recovering damages in situations in which both the victim and the defendant were negligent and contributed to the cause of the accident or the injuries to the plaintiff. In states that have modified comparative negligence statutes, a plaintiff may not be able to recover any damages if it is found that they are over 50% responsible for their injuries.

April 11, 2016

$4.5 Million Auto Accident Award Reversed Because Expert Witness Requirement Was Applied Incorrectly

by Sidney Schupak, Esq.

The Nevada Supreme Court recently reversed a lower court’s ruling that awarded a personal injury plaintiff nearly $4.5 million for an auto accident claim. The initial ruling, which was entered by default against the defendant as a sanction for violating several pretrial orders against presenting a low-impact accident defense, will be set aside, and the plaintiff will be required to try the case again or agree to a settlement with the defendant.

The Plaintiff and Defendant Were Involved in an Accident that Appeared Relatively Minor

The case, Rish v. Simao, involved an auto accident that , according to the Nevada Supreme Court’s opinion, occurred in relatively slow-moving, stop-and-go traffic. Although the plaintiff in the case refused medical treatment at the scene of the crash and claimed that he was not injured at the time, serious injuries allegedly developed in the days or weeks following the accident. Some time after the crash occurred, the plaintiff retained counsel and filed a personal injury lawsuit against the defendant, alleging that the defendant’s negligence resulted in serious and ongoing injuries that required significant medical treatment.

The Plaintiff Files a Pretrial Motion to Exclude Specific Defense Testimony

Relying on an interpretation of a prior Nevada case, the plaintiff successfully argued before trial that the defendant should not be permitted to argue that the crash was a low-impact crash, which couldn’t have caused the alleged injuries, without retaining a biomechanical engineer as an expert witness first. Agreeing with the plaintiff and finding that the defendant had not retained such an expert, the judge granted the plaintiff’s motion. The judge also ruled that the defendant would not be permitted to discuss the nature of the accident or show pictures from the accident scene to the jury at trial. This ruling left little room for the defendant to give a defense at trial without such an expert, but the case moved on.

March 25, 2016

West Virginia Court Finds in Favor of Plaintiff in Road Rage Accident Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Appeals of West Virginia handed down an opinion in a case that was based on a truck accident caused by another driver’s dangerous and aggressive driving. In the case Phillips v. Stear, the appellate court reversed a jury’s verdict that the plaintiff failed to prove his case. The court did so based on the defendant’s failure to admit that he was recently issued a citation for reckless driving after testifying that he was a safe and cautious driver by nature.

Phillips v. Stear: The Facts

The plaintiff was injured as a result of an accident involving the defendant. According to the court’s written opinion, the plaintiff was cut off by the defendant, who had pulled in front of the plaintiff and slammed on his brakes. The plaintiff lost control and crashed his truck. He sued the defendant, seeking compensation for his injuries.

At trial, the defendant took the witness stand to testify to his own good character and record of safe driving. On cross examination, the plaintiff asked the defendant about a recent reckless driving citation, but the defendant failed to admit to the citation and told the court he “did not recall the event.”

March 18, 2016

Plaintiff Victorious in Uninsured Motorist Claim Insurer, But Awarded Zero Dollars by Jury

by Sidney Schupak, Esq.

Juries are one of, if not the single most, unpredictable variable in any personal injury case. While a skilled attorney will do everything they can to ensure that their client is left with a fair jury, there is no way to read the minds of potential jurors and foresee how they will view certain issues that may come up at trial. It is therefore critically important that personal injury attorneys prepare a solid legal argument on behalf of their client, and also present it in a polished, professional manner.

Jury Awards Plaintiff Zero Dollars in Recent Personal Injury Case

Earlier this month, a Nebraska jury returned a verdict in favor of the plaintiff, but awarded the plaintiff a zero-dollar verdict. In the case, Lowman v. State Farm Mutual Auto Insurance Company, the plaintiff was injured when he was struck by an underinsured motorist. Because the motorist was underinsured, the plaintiff looked to his own insurance carrier to help make up the difference.

State Farm admitted that the underinsured motorist was responsible for the accident, but contested whether the driver’s negligence resulted in the plaintiff’s injuries. Because the plaintiff’s medical bills had already been paid, the only claim she was making was for the pain and suffering she sustained as a result of the accident.