Virginia Injury Lawyers Blog

July 24, 2021

Plaintiff Asserts Evidentiary Abuse of Discretion in Virginia Wrongful Death Case

The Virginia Supreme Court recently affirmed a lower court’s decision in a wrongful death claim stemming from a single-vehicle accident that took the lives of both occupants. According to the court’s opinion, the plaintiff, the administrator of the estate of one of the occupants, filed a lawsuit against several parties, including the other occupant of the vehicle. The lawsuit contends that the other occupant fell asleep at the wheel of his tractor-trailer, thereby causing the accident that killed the plaintiff. In response, the defendants argued that the plaintiff was the driver.

On appeal, the court reviewed several of the plaintiff’s arguments, including that the lower court erred in excluding portions of the medical examiner’s autopsy report and the plaintiff’s experts’ opinions regarding the driver’s identity. The plaintiff sought to introduce evidence from the Chief Medical examiner, where she concluded the cause of the defendant’s death was blunt force trauma. Her report relied on the police report to tell her who was driving the tractor-trailer in the case.

The plaintiff argues that under Virginia Code § 8.01- 390.2, medical examiner reports shall be received as evidence in court. Therefore, although the examiner’s report stems from her opinions based on the police report, it should be admissible. Statutory interpretation requires a court to review the plain language of a statute unless the terms are ambiguous. In this case, the court found that nothing in the statute provides that a medical examiner is permitted to make an opinion on an ultimate fact in issue. Further, the statute does not permit medical examiners to base opinions and facts from information garnered through lay testimony. Therefore, the court rejected the plaintiff’s argument that the statute should be construed to admit the medical examiner’s opinion solely because the opinion is in a report.

July 1, 2021

Liability in Virginia Multi-Vehicle Car Accidents

by Sidney Schupak, Esq.

After suffering injuries in a Virginia car accident, victims and their loved ones might be able to recover compensation for their damages. However, these lawsuits, especially when they involve multiple vehicles, require a thorough understanding of complex procedural, evidentiary, and substantive laws. The primary challenges in these cases revolve around the state’s statute of limitations and contributory negligence laws.

Virginia’s statute of limitations sets the time limit a victim or family has to commence a lawsuit. It is important to note that this statute of limitations does not apply to car insurance claims. The time limits for filing a claim with an insurance company depend mainly on the policy terms. Insurance provisions tend to limit the amount of time to a few days or weeks.

After a Virginia car accident, there are generally three statutes that come into play. The relevant statute of limitations applies to car accident lawsuits, property damage claims, and wrongful death lawsuits. Virginia motor vehicle lawsuits must be filed within two years of the incident. Property damage claims must be filed within five years of the accident. Finally, the statute of limitations for wrongful death lawsuits starts running on the day of the victim’s death.

June 24, 2021

The Impact of Insurance on Maryland Car Accident Claims

by Sidney Schupak, Esq.

Maryland falls in line with other states and requires motorists to carry minimum car insurance coverage. Driving without car insurance in Maryland can result in various consequences to the at-fault driver and any accident victims. While the law prohibits motorists from driving without insurance, that does not deter many people from engaging in this illegal conduct. Getting into an accident with an uninsured or underinsured motorist can create long-term medical and financial consequences for an accident victim.

The most recent accident data from Maryland shows that there were nearly 116,000 total car crashes in 2019. Approximately 33,000 of those accidents resulted in bodily injury, and over 82,000 accidents caused property damage. Maryland is an at-fault state, which means that drivers are liable for the damages they cause in an accident. However, while the state requires motorists to carry appropriate coverage, about 14% of the drivers in the accidents mentioned above were uninsured. These startling facts reveal that a significant number of accident victims likely did not recover adequate damages through an insurance claim.

While Maryland insurance laws require drivers to carry liability insurance, it is essential to note that this coverage only applies to at-fault drivers who cause injuries to others in an accident. The coverage does not protect a driver for the injuries or damages they suffered in an accident. Some motorists opt to add on additional coverage, such as collision, comprehensive, or medical coverage. However, these are optional and do not apply in every accident case and are not always beneficial to the party who needs coverage. For example, medical payments coverage covers the insured motorist and their passengers, regardless of fault, but does not apply to the other driver or their passengers.

May 26, 2021

Bringing a Lawsuit After a Virginia Fatal Car Crash

by Sidney Schupak, Esq.

Car accidents in Virginia are dangerous, and unfortunately, sometimes lead to death. In cases like this, the last thing on the family’s mind is to bring a lawsuit. However, in cases where there is a party responsible for the incident and it could have been prevented, their loved ones should pursue a wrongful death lawsuit. This can assist in their financial recovery—especially if the deceased provided the primary earnings for the family—as they are also emotionally grieving. Below is more information about wrongful death lawsuits and the necessary elements a plaintiff would need to prove to be successful in the case.

Recently, a man was killed in Powhatan County after a three-vehicle crash. According to a news report, a car was heading west when it slowed down to make a left turn and was struck from behind. This vehicle was then hit by another car, which ran off the road, spun and struck some trees. The man whose vehicle was struck from behind unfortunately passed away after the incident. Besides the man’s death, his son remains in the hospital and individuals in the third vehicle were also airlifted to the hospital. The driver who caused the accident, a teenager, has been charged with reckless driving.

In situations where a family member is killed, it is likely that criminal charges will be pursued—like in this case. However, the family of the deceased loved one should still bring charges to hold the responsible party financially liable for the incident. In Virginia, a wrongful death is one caused by the wrongful act, neglect, or default of another party. This means that the plaintiff in the case—the spouse, child, parent, or any other relative of the deceased—must show that if it were not for the responsible party’s action, their loved one would not have died.

April 27, 2021

Virginia Supreme Court Addresses Premises Liability Case Involving Third-Party’s Negligence

by Sidney Schupak, Esq.

Recently, the state’s high court issued an opinion in a claim stemming from a Virginia premises liability lawsuit. The case arose when a woman was shot and killed while visiting her mother’s home. According to the claim, the defendant was visiting his grandparents’ home when they permitted him to practice shooting in the direction of the victim’s mother’s residence. One of the bullets the defendant shot went through the woman’s home and struck the victim. The victim’s personal representative filed a lawsuit claiming that the grandparents “knew or should have known” that firing bullets in the direction of their home would go through the trees and strike anyone located in or around the residence. In response, the defendants filed a demurrer, arguing that they did not owe the mother or any of her visitors a duty. Additionally, they claimed that they were immune under Virginia’s Recreational Land Use Act.

The plaintiff appealed, arguing that the defendants had a duty to ensure the reasonable safety of that outside of their property and prevent the direct harm from their affirmative actions. Virginia premises liability cases hinge on whether the negligent party owed a duty to the person who is seeking recovery. The imposition of duty does not solely rest on foreseeability. Rather, inquiries regarding whether a duty exists depend on the totality of the circumstances and include analyzing the likelihood of injury, the burden of preventing the injury, and the consequences of imposing a duty on the negligent party.

Generally, landowners are subject to liability for harm to individuals outside of their land when the injury results because of the owner’s activities on their property. However, this duty typically applies to land occupiers, not third parties on the premises. As such, typically, landowners do not have a duty to protect others from harmful acts of third parties on their property.

March 25, 2021

Virginia Pedestrian Laws and Safety Issues

by Sidney Schupak, Esq.

As the world begins to reopen, more people have been out and about on the streets. With more vehicles on the road, however, it also means there are more pedestrians. Because there is more traffic on our roads and crosswalks, the risk of a potential Virginia pedestrian accident is higher than it has been in recent months—and drivers and pedestrians must both exercise the necessary precautions to remain safe.

In a recent news article, a vehicle hit a pedestrian at a Virginia intersection. According to authorities, the pedestrian was transported to a local hospital with moderate injuries. The accident remains under investigation, and law enforcement is still examining who is at fault since it was not immediately clear following the collision.

Virginia, similar to other states, has specific laws pertaining to pedestrian safety. In Virginia, pedestrians are expected to always use crosswalks and adhere to proper safety procedures when crossing, if available. Motorists in Virginia are further expected to ensure the safety of pedestrians by yielding to them on marked and unmarked crosswalks.

February 24, 2021

Important Exceptions to the Virginia Contributory Negligence Rule

by Sidney Schupak, Esq.

When it comes to determining whether an injured person can pursue a Virginia personal injury claim after an accident, Virginia relies on the doctrine of contributory negligence. Contributory negligence is a harsh rule, that prohibits any injured person from bringing a claim against any other at-fault party, if the accident victim shares any blame for causing the accident. Thus, if a motorist is found to be only five percent at fault for a car accident, they could not file a Virginia car accident lawsuit against the other driver who was 95 percent responsible.

Clearly, the contributory negligence rule can lead to some very unfair results. And despite years of efforts from personal injury attorneys and some politicians, state lawmakers refuse to adjust the doctrine. Notably, Virginia is one of only a few states that still use contributory negligence. Most other states rely on a doctrine called comparative fault, in which an at-fault accident victim can still recover for their injuries, but will only recover a reduced amount. Specifically, the accident victim’s damages award is reduced by their own percentage of fault.

However, there is a very important exception to Virginia’s contributory negligence rule in accidents involving common carriers. A common carrier is an individual or business that transports people for a fee. For example, buses, taxis, and Uber and Lyft drivers are all common carriers.

January 20, 2021

Biased Expert Testimony in Virginia Personal Injury Claims

by Sidney Schupak, Esq.

In some Virginia personal injury lawsuits, testimony from experts may be necessary to lend further credibility to the argument that a party is making, but also to provide more context to the facts of a particular case. Sometimes, however, experts are retained repeatedly and may have previous, longstanding relationships with insurance companies or attorneys. The potential for bias for these experts can be high because of these relationships, and evidence of that bias may be crucial for a party to establish when arguing against or working to discredit the expert’s testimony.

In a recent Virginia Supreme Court opinion, the court considered whether evidence of an expert’s previous relationship with an insurance company and potential bias could be introduced in court. The plaintiff was driving when she was hit from behind by the defendant. Following the accident, the plaintiff experienced back, hip, and neck pain and increased depression and anxiety. The plaintiff sought medical care and physical therapy that cost more than $26,000 and sued the defendant seeking $150,000 in damages. The defendant’s representation retained an orthopedic surgeon to serve as a witness, who opined that the car accident only caused minor injuries to the plaintiff and that much of the pain she experienced was the result of conditions that were present before the accident. He also argued that her medical expenses should only be around $3000.

During depositions prior to trial, it was discovered that the surgeon had been retained by the defendant’s attorney more than 30 times over the last decade, but not by the defendant’s insurance company directly. However, the surgeon had done work with the insurance company before this case through the defendant’s attorney and had been compensated by the insurance company for his expert testimony. Before trial, the plaintiff moved to introduce evidence showing the surgeon’s previous relationship with the defendant’s attorney and her auto insurance company. The court allowed the plaintiff to introduce evidence that the surgeon had testified on behalf of the defendant’s attorney’s clients in the past but barred her from discussing his previous work for the defendant’s insurance company because there was no direct relationship between the surgeon and the company.

December 23, 2020

Court Addresses Nexus Requirement in Virginia Uninsured Motorist Claim

by Sidney Schupak, Esq.

The Supreme Court of Virginia recently issued an opinion addressing the nexus requirement for injuries a victim suffered on a school bus. The case arose after a special needs child suffered abuse while riding a school bus. The victim, who was ten years old at the time of the incident, has autism and cannot communicate verbally. The bus driver and aide were aware of the boy’s special needs and used a harness to secure him into his seat. While the boy was strapped to his seat, two other children repeatedly beat the boy, slapped his head, choked him, and sprayed chemicals in his face. The victim’s mother filed a claim under her uninsured motorist coverage, for damages the boy suffered due to the attack. The insurance company argued that the policy did not cover this situation because no nexus existed between the boy’s injuries and the school bus’s use as a means of transportation.

In Virginia, when courts analyze the application of an insurance policy coverage concerning the “ownership, maintenance, or use” of a vehicle, they place significant consideration on the intention of the parties to the agreement. Under the law, “ownership, maintenance, or use” should be evaluated under the terms’ ordinary meaning. The primary inquiry is whether there is a causal relationship between the incident and the use of the vehicle, as a vehicle. Although, the vehicle’s use does not need to be the actual or proximate cause of the injury, there should be a causal connection. In other words, for coverage to apply, the use of the vehicle cannot be incidental or tangential. Courts look to what the victim was doing when he suffered injuries, and what role the vehicle played in the incident.

In this case, the court found that his mother’s uninsured motorist provision did not cover the victim’s injuries. The insurance company’s provision provides that the company pay damages for bodily injuries that “arise out of the ownership, maintenance, or use” of the uninsured vehicle. Here, the court reasoned that the assailants abused the boy on the bus; however, the bus was used as a means of transportation. Further, the physical abuse the boy suffered was not typically contemplated by the policyholders to a car insurance policy. Therefore, because the conduct was “foreign” to the school bus’s purposes, the court found no nexus existed.

November 24, 2020

Recovering Compensation Through a Virginia Wrongful Death Claim

by Sidney Schupak, Esq.

We trust our doctors and health care providers to keep us safe—especially when we’re at our most vulnerable and not feeling well. This, however, is not always the case, and instances of Virginia medical malpractice can have serious consequences. When such incidents cause injuries or even death, those who are responsible must be held accountable.

In a recent Virginia Supreme Court opinion, the court had to consider the merits of a wrongful death claim. The deceased was admitted to a local Virginia hospital because she was experiencing nausea, vomiting, and abdominal pain. After an abdominal CT scan, multiple doctors examined the decedent’s results and eventually sent her home. Later in Kentucky, she was admitted to the hospital again when she experienced severe abdominal pain. The doctors at this hospital performed an initial surgery, which was followed by multiple other surgeries to treat other stomach and abdominal issues in the following two months. Eventually, the decedent died “as a result of complications directly related and attributable” to the initial surgery she underwent in Kentucky.

Following the decedent’s passing, the executor of her estate brought claims in both states. In Virginia, he brought wrongful death claims against the doctors who initially treated the deceased and discharged her. The executor of the decedent’s estate argued that the Virginia hospital and the physicians who treated the deceased were negligent and their failure to identify and treat the deceased’s abdominal issues was a proximate cause of her death. The lower court dismissed the executor’s claims, finding that because he received a settlement in Kentucky, he was ineligible to receive damages from a wrongful death claim in Virginia.