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Frequently Asked Questions

After Your Accident

Questions about Litigation Issues

Questions about Wrongful Death Claims

The General Progress of Your Case

After Your Accident

Should I give a statement to the insurance adjuster of the person who hit me?

There are many occasions when we feel that it is appropriate for you to give a statement to the insurance adjuster; however, you should never give any such statement without retaining an attorney on your case, and engaging in a consultation about your case with that attorney prior to agreeing to give any statement to the other person’s insurance company. An experienced injury attorney will know how to prepare you so that you properly answer any questions that the adjuster may have.

Time and time again, we have seen cases immediately derailed and denied by the insurance company, because the injured person did not understand the importance of the issues in their case, and in so doing, gave incorrect information to the insurance adjuster. Had they been properly prepared, and directed to the importance, for instance, of knowing precise distances, measurements, and time, the claim would not have been denied.

When we represent our clients, we make sure that if we agree to a statement, it is done by way of a three-way phone call, so that the attorney can listen in, and, if necessary, direct the client not to answer any inappropriate questions, or perhaps interrupt if the attorneys input can clear up a simple matter.

This advice may not necessarily apply to a situation where your own insurance company, in connection with your own policy, has asked you to give a statement in connection with an accident. Because you have a contract with your insurance company, you may be under an obligation, pursuant to the terms of that contract, to provide them with a statement when asked for, or fill out forms and cooperate with them in other ways as well. Your failure to provide a statement in a timely manner or cooperate with your own insurance company in connection with your policy could negatively impact their decision to provide you with insurance coverage in your case. As a general rule, it is therefore very important for you to cooperate with your own insurance company in connection with your own coverage.
We urge you to call us if you are being asked to give a statement to any insurance adjuster in your case.

When should I call an attorney?

You should absolutely not wait to make a call to an attorney. The attorney whom you call should be one who is experienced in personal injury law. We recommend that as soon as you have obtained treatment for your initial trauma from the accident, you call a personal injury attorney right away.

Over the years, we have, unfortunately, had to turn down many cases because the injured person waited far too long to seek appropriate treatment, or simply did not secure their rights insofar as their case is concerned.

Should I just call my family attorney or should I call one who focuses on injury cases?

You should never use an attorney who is inexperienced in handling injury cases. We have had many files come to our office where the client had previously retained such an attorney, only to find ourselves having to “play catch up” in an attempt to correct the numerous mistakes and oversights in connection with the inexperienced attorney’s handling of the case. Make sure your attorney has been practicing personal injury law for a good number of years, and has a proven track record.

Should I wait for the Police after I have been in a collision?

Yes, there is no question that you should wait for the police. Part of the job of the police is to make sure that legitimate, accurate information is obtained from each driver, including their name, address, insurance information, and information pertaining to the ownership of the vehicle. After they have performed their investigation, the officer will usually give you an “exchange sheet” which provides you with this information as to the other driver.

If you are going to rely on the trustworthiness of the other driver, who just ran into you, to provide you with accurate information, without the intervention of the police, then you are making a big mistake which could jeopardize your obtaining any recovery at all in your claim.

Also, if the damage to the vehicle is sufficient, it is also the job of police to perform a thorough investigation and draw up an accident report detailing the facts of the accident. That report is oftentimes crucial, and is always submitted to the insurance company with our demand package seeking money on your claim.

Should I get any information from witnesses? What kind of information?

Yes, if you or one of your passengers can take photographs with your cell phone or other camera of the position of the vehicles and damage not just to your vehicle, but to the other vehicle as well, this can often be very helpful. Although we will obtain photographs of the damage to your vehicle in the course of our representation of you, it is not always so easy for us to obtain photographs of the damage to the other vehicle. In some situations, these photographs can be absolutely crucial in aiding us in the proof relating to both damages and fault of the other driver.

When should I seek medical attention?

Assuming that you are not taken away from the scene in an ambulance to receive immediate ER treatment, you should seek immediate medical attention, preferably on the same day or evening on which the collision occurred. If this is impossible, and you should go immediately the following morning.

What type of medical attention should I seek?

Generally, you should go to the emergency room, or one of the many “Doc-in-the- Box” facilities, such as a Patient First, for your initial visit. If, however, you have a family doctor with whom you have a good relationship, and you can get in to see him or her either that same day, or the next day, that is also fine.

Should I use my Health Insurance when I seek medical attention for the accident, or should I give the facility the other drivers information?

If you have health insurance, you should always utilize it not just for the initial treatment, but for any and all of your treatment related to your accident, if possible. Although some of these health insurance policies may require reimbursement out of your recovery at the end of the case, that is a far better situation to be in than to have hospital bill collectors hounding you while you continue to treat and recover from your injuries.

In Virginia and North Carolina, the doctor or hospital will not accept any information regarding the other driver’s car insurance, or any car insurance for that matter, even your own. The exception would be if you come from one of the “no-fault” states such as New York or New Jersey and you have a no-fault policy, with full PIP (personal injury protection) coverage. That policy is supposed to cover you for any and all medical bills related to your accident, and you must do everything possible to make sure someone on the billing staff understands this. You are likely to encounter resistance from the billing staff at the hospital or other facilities here, as Virginia and North Carolina billing staff are often unfamiliar with this type of coverage, and will simply parrot what they have been taught, namely, that “we do not accept car insurance.” You may have to speak to a supervisor or get an attorney involved, to make sure they have the proper claim forms to access and be paid under your PIP coverage.

What if I do not have any health insurance? How am I supposed to treat for my injuries?

The Emergency Room will likely treat your injuries, particularly if they know it is from a car accident, and hold their bill until your recovery. Unfortunately, most other facilities will not do this for you; however, we are familiar with numerous chiropractors, orthopaedics, and other professionals and facilities, who, because of our reputation and long track record of obtaining results for our clients, will agree to treat you and hold their bill until the end of your case to require payment. If we agree to represent you, and you do not have health insurance, we will make sure you are treated by a physician or other health care provider who will make this arrangement with you.

Questions about Litigation Issues

My lawyer tells me we have to file suit. Why can't we just settle without doing that?

Unfortunately, if all negotiations and attempts to settle with the adjuster and/or opposing counsel have been exhausted, and you and your lawyer are of the opinion that the settlement offers presented are not viable offers to settle your personal injury claim, your lawyer may have no choice but to file suit. This may be done not only to protect the statute of limitations, but also to protect your interests regarding a fair settlement of your personal injury claim.

Oftentimes, we find once suit is filed, adjusters and defense counsel will increase their settlement offers in an attempt to avoid unnecessary trial preparation and defense costs.

What are interrogatories?

Interrogatories are questions propounded from the opposing party in an attempt to get a better picture of the claims and counterclaims presented by both parties, including but not limited to injuries sustained, permanency, wage loss, and property damage. Interrogatories also give counsel a more detailed description of when, where and how the accident happened and the circumstances surrounding the accident. Similar questions are propounded to the defendant by your lawyer as well. The “discovery responses” as they are called, give your attorney some insight into the defenses alleged by the opposing party and allow him to properly prepare your case for potential depositions or trial.

What is a deposition?

A deposition is merely the asking of questions of a party or a witness by an attorney, under oath. The questions and responses are transcribed by a certified court reporter. During a deposition, an attorney is able to question the opposing party and any other witnesses he or she feels they need to question to more fully determine their knowledge of any facts which are relevant to the lawsuit and claims alleged therein.

The first deposition is usually that of the parties, meaning you, the client, and the other party, the defendant. The purpose of that deposition is primarily to give each an attorney a detailed version of the claims and defenses of each party, under oath. This has the effect of “locking in” each party to their testimony so that they won’t be able to change it at trial. After the deposition, it is also oftentimes an opportunity for the insurance company lawyer to communicate his impressions of you and your case to the defendant’s insurance adjuster, so that an updated evaluation may be made.

In other instances depositions are used to elicit testimony and opinions from “expert witnesses” regarding claimed personal injuries, such as your doctors, and oftentimes, economic experts or other expert witnesses such as engineers, architects, or safety experts.

Why do I have to answer depositions and interrogatories, if the accident was not my fault?

Under the Civil Law governing our country, every litigant, whether they are the one bringing the case, or the one being sued, has the right to take advantage of the discovery procedures available so that their attorney can be prepared to properly represent their client. If your claim is truly a strong, legitimate claim, this will become clear to the other side when you respond to discovery and give your deposition, provided your attorney prepares you properly. Please see our short introduction video relating to preparing for your deposition.

What is the Statute of limitations?

The statute of limitations is the cutoff date for filing any claims arising from a personal injury action or other civil action. In Virginia, the statute of limitations for personal injury claims is two years from the date of the alleged accident. In North Carolina, the statute of limitations for personal injuries is three years from the date of the alleged accident. For example, the statute of limitations for an accident occurring in Virginia on July 7, 2008 would be July 7, 2010. There are many other deadlines which act as statutes of limitations which your attorney needs to be aware of, especially in relation to suing governmental entities. If you believe you were injured as a result of the negligence of a City or governmental entity, you should contact an attorney immediately. Some of these deadlines expire within SIX MONTHS after your injury!!! In addition, if you or a loved one were injured in a nursing home, and that person leaves the nursing home after their injury, under Va law, you only have a SIXTY DAY window after leaving the nursing home, to opt out of arbitration. Most nursing home contracts contain a mandatory arbitration provision, but under Va law, you can opt out of that requirement if you act quickly.

If I go to Court, will that increase my expenses? If so, what kind of expenses can I expect?

Yes, filing fees are incurred when a Complaint (a civil law suit) is filed. The amount of the filing fees is dependent upon the amount of the lawsuit filed. Filings in Circuit or Superior Court usually exceed $100.00. In addition to the filing fees, there are fees incurred for serving the Complaint. The amount of the service fees vary, depending on the type of service required and the Court in which you want to file your claim.. In addition, typically, process servers or sheriffs charge a fee of $12.00 for each service requested. For example, if you have two defendants, the fee would be $24.00 for a typical service fee. However, in some instances when the party to be served is not able to be served or is no longer a resident of the State wherein the lawsuit is filed, service must be obtained either by the Secretary of the Commonwealth or the Department of Motor Vehicles and the current charge for each of those services is $28.00.

In addition, as the case moves along, interrogatories, correspondence, postage, and depositions add costs to the case. The depositions include the cost of the court reporter appearance fee, and the charge for the transcription, if ordered by the attorneys. These costs will vary, depending on the size of the transcript. These charges can vary from one or two hundred dollars to in excess of $1000.00 for each deposition.

Finally, if any expert witnesses, such as your treating doctors, are deposed, and their testimony is utilized for trial, in addition to the court reporter costs, the doctors will charge for their time, both for preparation for the deposition and review of records, conferencing with your attorney, and also for the time to actually give their testimony. These costs vary widely for each specialty. Some doctors charge as much as $2500.00 per hour for a deposition to be used in Court.

Once I agree to settle my case, what happens then? Do I still have to go to Court?

No, the adjuster or opposing attorney will forward a settlement check and release of claims to your attorney who will upon receipt thereof, verify balances of all medical bills and expenses incurred (including attorney’s fees and costs) and prepare and provide you with a settlement statement setting forth the amount of the settlement, total disbursements, and net to you. If a lawsuit was filed with the Court, once the money comes in, your attorney will prepare a Dismissal Order dismissing your lawsuit and he or she will present it to the Court for entry.

Is there any way that I can know what my expenses were before I accept an offer of settlement?

Most definitely. If requested, your attorney can provide you with a detailed list of expenses incurred on your behalf regarding your personal injury claim prior to your agreeing to settle . You should definitely make sure he knows what those expenses are, so he can tell you what your net recovery is going to be, before you agree to settle your claim.

What is mediation, and why should I agree to it?

Mediation is a process in which you, your attorney, and opposing attorney (if applicable) meet with a third party—a mediator—in an attempt to review your claim and to hopefully come up with an amicable resolution to settle your claim. The mediator does NOT have the power to render any decision in your case. That power remains with you. His only power is to declare an “impasse” if the parties cannot reach an agreement.

If your case is filed in North Carolina Superior Court, unless it is clear there are going to be no settlement discussions, and the parties agree---then the process is mandatory, meaning, you MUST go to mediation. It also means that the defendant must go to mediation and have someone such as an insurance adjuster available at the mediation or available during the mediation who has the authority to offer money on the claim.

The mediation is typically held in one of the attorneys’ conference rooms or at the mediator’s conference room. During mediation, an unbiased, experienced mediator, usually an attorney whom both parties agree to, will listen to your attorney and the defense attorney give their version of the strengths of their side of the case.

After that, typically, the parties will split up into two different rooms and the process of negotiation begins. At this point, it becomes a little like buying a car. During the course of these negotiations, the job of the mediator is to shuttle back and forth between the parties and utilize his or her experience and skills to facilitate a “meeting of the minds” and to get both parties to a number they can live with. This can take some time.

If this can be accomplished, the case is settled. If it cannot be accomplished, the mediator will declare an “impasse” and the case will subsequently proceed to trial.

Unlike North Carolina, in the Commonwealth of Virginia, with the exception of a few Circuit Court Cities, mediation is not mandatory; however, oftentimes when you have a claim the other side may get bogged down into seeing it “their way” only your opposing view is sometimes not properly considered, and the parties may both agree that a mediation is the best way to make an attempt to resolve the dispute. Then the attorneys, in consultation with their clients, may choose and agree on a mediator and set a date for the mediation.

Questions about Wrongful Death Claims

Filing a lawsuit or bringing a claim for money against the perpetrator won’t bring back my loved one. Why should I consider pursuing a wrongful death claim? What will it accomplish? I am not the kind of person who sues people.

You are right. The reality is that any legal process is limited as to what it can accomplish.  The best remedy to the tragic death of a loved one would be to require defendant to pay for you to travel back in time before the tragedy occurred, and somehow prevent it from happening.  Failing that, the next best remedy would be to require defendant to pay to have your loved one resurrected and returned to you.

Of course, we know these things are absurd, and the stuff of science fiction. The only power that the American System of Justice provides to the family of a wrongful death victim is the right to pursue money damages on behalf of the estate of the victim.

The best way, in my opinion, to think about a wrongful death claim is to try to think about it as bringing about some kind of positive result out of tragedy. For instance, if you do not need the money, perhaps you could use the proceeds from a wrongful death verdict or settlement to set up a scholarship fund or other charitable fund in memory of the deceased.  In the case of the death of the child, perhaps child's siblings would like to go to college, but you cannot afford it. The successful culmination of a wrongful death claim may very well provide the funds to enable those siblings to realize their dreams. And of course, whenever that sibling thinks about what they have accomplished in life, they will know and remember that even though their sibling died in a tragic way, that brother or sister left behind a gift for them. That gift was the creation of a legacy that enabled the family to not only overcome the tragic loss of a family member, but to succeed beyond their wildest dreams.

Who is entitled to bring a wrongful death claim?

In both Virginia and North Carolina, the claim must be brought by the personal representative or administrator of the estate of the deceased. Someone must go down to the Clerk of Court where the death occurred to qualify to be the personal representative or administrator of the estate of the deceased.  After they obtain the Death Certificate from the Coroner, qualifying someone as the personal representative/administrator is the next thing I always advise families to accomplish.

Getting appointed administrator/personal rep for wrongful death claim purposes is not a complicated or difficult thing to do.  Some Court Clerks require that you make an appointment with a specific Clerk, usually a probate clerk prior to coming down to the Courthouse. We have and will accompany family members to the Courthouse, if necessary, to insure the process goes smoothly , or to answer any questions they may have.

Whomever qualifies must pay a small fee to the Court and advise the Clerk that this is being done in order to move ahead with a wrongful death claim on behalf of the estate of the deceased.

You must realize that even if suit has not yet been filed, and even it has been made clear that the insurance company is ready to offer their full limits of insurance immediately to settle the claim, it does not matter. The defendant’s insurance company will only deal with the person who has qualified as administrator of the Estate /Personal Representative. Until that qualification happens, there is no one to whom the Insurance Company can legally pay the settlement money. 

In addition, if the family is interested in hiring an attorney to represent the Estate and pursue the claim, the agreement with the attorney is going to have to be executed by whomever is the personal representative of the Estate.

Who is qualified to be the personal representative or administrator?

In both Virginia and North Carolina, in the case of the death of a child, the custodial parent is going to have preference to be the administrator of the Estate of the child.  Such parent may waive that preference, and designate someone else.  A surviving spouse will also have precedence. In North Carolina, if 90 days passes after death and no one has qualified, if no one is coming forward and a claim must be pursued, the Clerk may, but is not required, to  consider all priorities renounced and appoint a public administrator. These are basically attorneys who reside and practice in the County where the death occurred. The public administrator is generally going to receive 5% of the value of the estate for his services. If six months elapses since death and no such administrator is appointed, the Clerk is obligated to appoint a public administrator if it is brought to their attention.

Practicalities.   

Don’t let it get ugly. You don’t need this kind of aggravation to be added to a tragic situation. As a practical matter, if there are going to be multiple beneficiaries (see questions regarding beneficiaries below) it is important for everyone to agree on whom should be the personal representative.  For instance, if there are two custodial parents of a deceased child, then there may be a ‘race’ to qualify as administrator.  Particularly if things are not peaceful, as, for instance, between divorced parents of a deceased child, it may be better to find a mutually agreeable third party to and agree to allow them to qualify as administrator, rather than to engage in such a ‘race.’

Another consideration in a tense family situation is that if there is a settlement, and the parties cannot agree on the distribution, you do not want one of the beneficiaries acting as administrator. You want someone as neutral as possible whose interest is only to reach a fair compromise among the beneficiaries.

The person sitting next to the lawyer. Another important consideration is that if suit is brought, and the case does not settle, then the personal representative will be sitting in the chair next to the lawyer representing the estate. Therefore, the Jury will be indentifying most with that person during the course of the Trial. It is therefore important to choose someone whom the Jury will respect and identify with, and obviously, someone who everyone can trust. In other words, just because Uncle Jimmy--- who has two felony convictions for fraud and embezzlement--- has some accounting experience or is good with numbers, it would be a bad idea to pick him as personal representative. Of course, no one will trust him and what’s more---the jury will know about the two felony convictions. So—Uncle Jimmy---bad idea.

The loved one who was killed in my situation was a child. They do not have any money or “Estate” of any kind. So, I do not understand. How do I administrate something that doesn't exist?

When we are talking about wrongful death claims, the “Estate” is really just the legal entity that is created in order to bring a claim and receive money to pay out to the beneficiaries once the claim is concluded. If you are a person who wants to qualify to be the personal representative of the child's estate, you must go down to the Clerk of Court and file the necessary paperwork in order to qualify as personal representative and administrator of the child's estate so that any money that is obtained in the wrongful death case can be distributed to the proper beneficiaries. You must tell the Clerk that you are doing this in order to move ahead with a wrongful death claim on behalf of the child. It is important that the appropriate boxes are checked on the form in order to indicate that you anticipate bringing a wrongful death claim.

The accident that killed my loved one was at least partially my fault. Am I prevented from getting any money because of that?

In both Virginia and North Carolina, the answer is yes. You will not be able to be a beneficiary of the recovery for the wrongful death claim; however, that does not mean that the case cannot go forward. So long as there are surviving beneficiaries whom were not at fault, the claim can go forward.

How do I get wrongful death claim started?

The first thing you will need is a certified copy of the death certificate. Ask for more than one. That can usually be obtained from the coroner's office in the City or County where the death occurred. After that, someone must take that certified death certificate and go down to the Clerk of Court to qualify to be the personal representative / administrator of the Estate of the deceased, as set forth above. Whomever qualifies must pay a small fee and advise the Clerk that this is being done in order to move ahead with a wrongful death claim on behalf of the Estate of the deceased. It is important that the person applying to be the administrator check the appropriate boxes on the application form in order to indicate that they anticipate bringing a wrongful death claim on behalf of the Estate.

What will it cost me for the lawyers if I hire one for a wrongful death claim?

First, you must realize that the only person who is authorized to hire an attorney on a wrongful death claim is the Personal Representative or Administrator of the estate. As set forth above, for the initial period after the victim's death, only certain people are generally going to be permitted to qualify by the Clerk to be the personal representative.  Just because you are a grandparent or a brother or sister of the deceased does not mean you have the power to become personal administrator or do anything on behalf of the estate of the deceased.

Therefore, if you feel that an attorney should be hired in a claim, you should approach those people whom the Clerk would qualify, whether they be the spouse of the deceased, or the custodial parent of a deceased child, and encourage them to obtain the Death Certificate, speak to an attorney, and get to the Clerk's office as soon as possible in order to get appointed as administrator, so that they can hire the attorney and proceed with the claim. Until that happens, no one can really do anything on behalf of the estate.

As far as attorneys’ fees, I cannot speak for other attorneys; however, our law firm does not charge any upfront attorneys fees on wrongful death claims.  Our fee agreements provide for a contingency fee of 25% of the gross recovery obtained on behalf of the estate, plus reimbursement of expenses out of the recovery in the event of settlement, or 33.3% the gross recovery, plus reimbursement of expenses out of the recovery in the event of a trial and verdict.

Who is entitled to get damages related to the death of a loved one in a wrongful death case?

In North Carolina, in the first case of a surviving spouse, the answer to that question first depends on the size of money we are talking about.

North Carolina Deceased Spouse.  What does the surviving spouse get, and what do the children get?

  • If the estate is more than $30,000, and there is one child, the surviving spouse gets the first $30,000 of that recovery, and the surviving spouse and child split the rest.
  • If the estate is more than $30,000 and there are two or more children, then the surviving spouse gets the first $30,000 of the recovery, +1/3 of the remainder of the recovery. The children then take a pro-rata share of the remaining portion of the recovery.
  • If the estate and recovery are more than $50,000, and there are no children of the deceased or lineal descendents of a deceased child or children, and the deceased is survived by one or more parents, then the surviving spouse takes the first $50,000 +1/2 of the remainder of the recovery and that surviving spouse splits that one half with any of the deceased's parents, who take a pro rata share of the remainder.                                                                                                                                                  
  • If the deceased is not survived by a child, children, lineal descendents of any deceased child or children, or by parent, then the surviving spouse takes all of the recovery, regardless of the amount.

North Carolina-- Child and No Spouse of the deceased.  

  • If the deceased is a parent who was not married, and if there is one child, that child takes the entirety of any recovery.
  • If there is only one lineal descendent of only one deceased child, that child takes the entirety of the recovery. (Grandchild whose parent previously died, which parent was a child of the deceased)
  • If there are two or more lineal descendents of one deceased child, or two or more children of the deceased, or any other kind of combination of those, then the shares of those children and/or descendents are determined as provided in the intestate succession statute at N.C.G.S. 29-16.

 

North Carolina-no spouse or children of deceased, no descendents of deceased children of deceased:

  • The surviving parents of the deceased take all.

North Carolina-- no spouse or children of deceased, no descendents of deceased children of deceased and no parents of deceased:

  • The surviving brothers and sisters of the deceased and the lineal descendents of any deceased brothers or sisters of the deceased (nephews or nieces) share pursuant to the intestate succession statute N.C.G.S. 29-16

North Carolina-- none of any of the previously mentioned survivors of the deceased. No spouse, children, descendents of deceased children, parents, siblings, or lineal descendents of any deceased sibling:

  • Paternal grandparents take one half in equal shares. If one is dead, the survivor takes the entire half.
  • If neither is alive, then uncles, aunts, and their surviving descendents take one half as provided in the intestate succession statute at N.C.G.S. 29-16
  • Maternal grandparents take the other half just as described for Paternal grandparents.
  • If there are no grandparents on one of the sides-either the maternal or the paternal side, then the other side shares the entire recovery.

North Carolina: Deceased Illegitimate child-- Very Harsh Law. The lesson here to any and all fathers of children out of wedlock, is this: If you care about your child and voluntarily support that child, unless you have taken the appropriate legal action, the law does not recognize you as the father when it comes to wrongful death of the child.  You must  make your paternity legal, by executing the appropriate documents and filing them in the appropriate Court during the child's lifetime.

  • Unless the father has acknowledged during his own life time and in the child's lifetime, his paternity, namely, that he is the father of the deceased child, in writing, acknowledged before the Clerk of Court his paternity, and then filed with the Clerk of Court that sworn acknowledgment, then the father is entitled to nothing. It does not matter if this man was the only father that the deceased child ever knew, or if the father raised the child on his own, or lived with the child is entire life. If these written requirements and filing in the Court were not accomplished while the child was alive, the father has absolutely no right to any share in the recovery of any wrongful death action brought on the behalf of the deceased child.

North Carolina: Willful abandonment.

  • Any parent who has willfully abandoned the care and maintenance of his or her child loses all rights to any recovery, unless that parent had resumed care and maintenance of said child at least one year prior to the death of the child, continuing the same until the child's death, or where the parent has been deprived of custody of the child by way of Court Order, and the parent has substantially complied with all orders of the court requiring contribution to the support of the child.

Virginia—Size of Estate makes no difference.  In Virginia, certain classes of relatives must share in the recovery, unless a particular beneficiary renounces their interests in the recovery. Unlike North Carolina, the size of the recovery is not a factor Virginia. The big issue determining each person’s share of the recovery is going to be the relationship of each potential beneficiary to the deceased. The beneficiary levels are as follows:

  1. The surviving spouse, children of the deceased, and children of any deceased child of the deceased all share. 

As a practical matter, and this goes for each of these levels, it must be decided the proportion of who gets what. In other words, you will note that the statute does not say that these parties are to share EQUALLY.  If the parties cannot agree on the distribution of the money, most Courts, for instance, are going to give precedence to minors and always do what is in the childrens’ best interests.  For instance, if there was a strained relationship or even separation between the spouse and the deceased (but not divorce), but a surviving child was close with their deceased parent, then the Court is going to give precedence, and a much larger share to the minor child.

If we are not dealing with someone with a spouse or children at the time of death,  then--

  1. The parents, brothers, and sisters of the deceased, and any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent all share.

    Again, as a practical matter, note the law does not say all these relatives share equally. For instance, if the deceased is a child, and there is a father who has visitation, a mother who has full custody, and two minor siblings of the deceased who stay with the mother, the Court is going to give preference to the two minor siblings. It is likely that the father who only has visitation is going to get a lesser share of the recovery/settlement than the mother and the mother is going to get a lesser share than the siblings of the deceased.
  1. If the decedent has left both a surviving spouse and parent or parents, but no child or grandchild, the award should be distributed to the surviving spouse and such parent or parents, or
  2. In addition to the beneficiaries and one and three, above, any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent is also a beneficiary.
  3. If there are no survivors to fit any of the descriptions above, then you must look to a Virginia statute which lists eligible descendents may qualify as a beneficiary.

How long to I have to bring a wrongful death claim?

In Virginia, TWO YEARS from the date of death.

In North Carolina, it is also TWO YEARS from the date of death, BUT, there are additional provisions that say that if the deceased COULD HAVE brought an injury claim for the condition which caused death, and he or she failed to do so within the injury statute of limitations (3 years) as of the date of death, in that instance, the statute has been “blown” and the wrongful death action is time-barred.

But—there are cases that say that if, at the time of death, the underlying injury action was not time-barred, even if it becomes time-barred after death, as long as the personal representative files the wrongful death claim within two years the from the date of death, the wrongful death action is preserved.

There are another class of actions in North Carolina known as survival actions, where one is also bringing a claim for the pain and suffering endured by the deceased prior to death as a separate cause of action. In those cases, the personal representative would only have one year from the date of death to file the action.

The bottom line of what this means is that in North Carolina particularly, when you have a claim that stems from something that started long ago, such as exposure to chemicals, or successive negligent acts, etc, you should never assume that the full two years is available. You should consult an attorney to determine if the action must be filed sooner in order to protect the statute.

There are also other special considerations with respect to medical malpractice actions which could provide you with additional time in North Carolina. Please feel free to call us if you have any questions.

What kind of damages are the beneficiaries entitled to in a wrongful death claim?

In North Carolina, damages recoverable for death by wrongful act tend to focus on the LOSS OF THE VALUE OF THE DECEASED TO the beneficiaries, and include the following:

1. Expenses for the care, treatment and hospitalization of the decedent due to the injury resulting in death;

2. Compensation for pain and suffering of the decedent;

3. The reasonable funeral expenses of the decedent;

4. The present monetary value of the decedent to the persons entitled to receive the damages recovered including, but not limited to compensation for the loss of the reasonably expected-

  1. Net income of the decedent,
  2. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
  1. Punitive damages, if indicated.

Obviously, some of these items are hard to quantify. It is the job of your attorney to explain to you and to the jury what each of these things mean, and to bring out all of the evidence from your family and from all available witnesses and experts in order to actually put numbers on the board near the most important items on the list above. The importance of each of the above items will vary from case to case and from beneficiary to beneficiary.

For instance, what in the heck are the "kindly offices" of the deceased? I have heard it explained that this means the "family duties" that the deceased engaged in while they were alive. In other words, the deceased family member held a certain "office" in the family, such as the office of father, mother, etc. Therefore, "kindly offices" can be interpreted as all the things that the decedent did in his or her work or role as a family member that is not covered by one of the other categories.

In Virginia, damages recoverable by Wrongful Death include some of the same items as North Carolina, but also focus a bit more on the pain, grief, and anguish suffered by those left behind:

  1. Any sorrow, mental anguish, and loss of solace suffered by the beneficiaries. Solace may include society, companionship, comfort, guidance, and kindly offices, and advise of the decedent.
  2. any reasonably expected loss in income of the decedent suffered by the beneficiaries; and
  3. any reasonably expected loss of services, protection, care, and assistance which the decedent provided to the beneficiaries.
  4. Any expenses for the care, treatment, and hospitalization of the decedent incident to the injury resulting in his death; and
  5. Reasonable funeral expenses. 

You will note the two biggest differences as follows: First, North Carolina has no specific provision for damages for sorrow and mental anguish suffered by the beneficiaries, whereas Virginia lists that as the first item. That does not mean we cannot argue about the loss of the family member to the beneficiaries in North Carolina. It just means the approach may be slightly different. In Virginia, grief counseling and psychiatric care for a surviving spouse or child, particularly if the death was extremely traumatic or violent, would be advisable and admissible on damages to prove mental anguish, whereas in North Carolina, it may not be admissible.

Second, you will note that Virginia has no provision whatsoever for damages relating to the pain and suffering of the deceased, whereas North Carolina does. This can be particularly difficult if there was a long and painful road from injury to death; however, it appears the legislature in VA determined that it would be easier to prove the effect of such an ordeal on the living rather than the deceased, so they put in the mental anguish provisions to cover that.

How much is a wrongful death claim worth?

Insurance coverage, Insurance Coverage, Insurance Coverage.  In both Virginia and North Carolina, and really in almost any state, as with any damage claim, the first and most important item that has to be looked at and examined are the limits of available insurance. Tragically, in motor vehicle accidents in particular, one often comes across situations where the only insurance that is available on the minimum limits of coverage. In Virginia, the minimum limits of coverage are $25,000.00.  In North Carolina, the minimum limits of coverage are currently $30,000.00.

In such a situation, one may ask, well what about the lawsuit against the person? This is a common misconception. In any case where you want to obtain insurance coverage, the case cannot be settled, in order to obtain that coverage, the individual person must be sued. We generally do not sue the insurance company, unless there is a question regarding whether the person is covered by the policy or not. Unfortunately, the reality is that when there are minimum limits involved, there is usually a financial reason why the person who has minimum limits is unable to afford more. In most cases, when we are talking about a minimum limits case, it would therefore make little sense to attempt to pursue the assets of a person with minimum coverage. Such assets likely do not exist, and if they do exist, they are usually so small that they do not justify the cost of going to Court to obtain a verdict that can never be collected. 

In vehicle fatalities, we must also often look at the uninsured or underinsured motorist coverage that covered the person at the time of their death. In Virginia, and in some situations in North Carolina, there may be multiple coverages that can be stacked to obtain a higher recovery. For instance, if, at the time of the collision in an automobile case,  the deceased lived with a number of blood relatives who all had separate policies on their vehicles, many of those policies may be stacked to provide more coverage. An attorney should actually be consulted in any such situation to ensure that the estate obtains the maximum recovery under the law.

Liability. The next most important question to ask is with respect to liability. Unfortunately, both North Carolina and Virginia are contributory negligence States. That means that in order to recover, the decedent, or those beneficiaries responsible for his  or her safety, must be completely free of any fault which contributed to the death of the decedent.  We see this often with respect to ‘dart out’ cases, where a child ran out into traffic and was killed. In North Carolina, if that child was under the age of 7, he or she cannot be negligent, so it is not going to be a factor; however, between the ages of 7 and 14 is known as a ‘gray area.’ At that point, although there is only a presumption that the child cannot be negligent, but that presumption can be overcome. The jury is entitled to weigh that particular child’s appreciation of the danger of what he or she was doing and decide if the presumption is overcome. After age 14, such a child would likely be barred from recovery as a matter of law.  

Witnesses are often crucial in close liability cases, because tragically, the deceased is no longer here to tell us what happened.

Expenses that must be paid out of the Estate. In addition to the coverage, the third most important question to ask is what are the medical expenses? It is not unusual in wrongful death cases for medical expenses exceed $200,000 .00. Even if the attempts to save the decedent's life only lasted for one day, the amount of medical personnel involved, and the tests, scans, and medications administered by the hospital staff, not to mention a helicopter evacuation can easily add up and even exceed such amounts.

The good news is that in North Carolina, the total amount that all healthcare providers can recover collectively from the estate of the deceased in a wrongful death claim is $4500 .00. That means that even if there are only minimum limits, there's a good chance that there will be at least some recovery for the beneficiary or beneficiaries who remain, even if the medical bills are immense.

Unfortunately, Virginia has no such statute; however, our office has often been successful in negotiating with healthcare providers to drastically reduce their claims on the estate, particularly if the recovery is limited by the lack of sufficient insurance proceeds.

Coverage not an issue.  If the wrongful death occurs as result of the negligence of someone employed by corporation, such as a truck driver, lifeguard, pizza delivery driver, doctor or staff at a nursing home, or store employee, then there is likely to be a commercial policy in place with limits at or in excess of $1 million.

At that point, we truly begin to look at the respective statute which governs the award of damages in either Virginia or North Carolina, as the case may be.

Really, the number one factor is almost always the relationships between the beneficiaries and the deceased. In other words, who was the deceased to each of the beneficiaries? If he was a parent, what kind of father was he? Was he there for his children, was he there for his wife? Were the relationships strong, or were they strained at the time of the deceased’s death? These items can really make an impact on a jury when they evaluate what they are going to give the beneficiaries in terms of damages.

Next, if we are talking about a parent/spouse, we will usually look at what kind of earnings they were bringing in while they were alive, and therefore, how much they could have been expected to bring in into the future. And there are other items as well, besides just their earnings on their paycheck.  For instance, if it was a spouse, did they do housework? Did they do yardwork? Did  they straighten up around the house on a frequent basis?  Did they do the family bookkeeping? Each of those things has a past and future value that is now lost forever. It usually falls to an economist who is typically hired by your attorney to bring all those items into focus for the Jury.

Punitive damages.  This comes up most often in drunk driving cases. In Virginia, if the defendant was found to have a BAC of over .15 at the time of the collision, then the estate of the deceased will be entitled to pursue a claim for punitive damages. In North Carolina, it must merely exceed the legal limit of .08, but there must also be evidence of intoxication in order to pursue punitive damages. In cases where insurance limits are less of a factor, evidence of intoxication can add enormous value to the already tragic case of the death of a loved one. Juries are mad as heck at drunk drivers and will show it in their verdict. It is your attorney’s job to convey to the jury that they must send a message with their verdict that drunk driving is unacceptable in their community.

What kind of items will I need or my lawyer need to assist them with proving the wrongful death claim?

As stated above, the first item would be the death certificate. After that, you will need to obtain the Letters of Administration appointing you or someone else as Administrator or Personal Representative of the Estate for the purposes of the wrongful death claim.  

After that, we usually want to see any tax returns of the deceased for the last few years, and any and all family photos and videos depicting the deceased. Don’t worry, we will digitize everything and will get it back to you.

The administrator will then be asked by our office to sign authorizations for us to obtain medical records as we will need to obtain a complete medical history of the deceased, not just relating to his or her death, but also for the years preceding his or her death. This is because any difficult medical issues the decedent was suffering from before death will impact his or her projected life expectancy for damage purposes. It is therefore crucial that we know as much as possible about any and all prior medical issues relating to the deceased.  

In addition, if the deceased was a child, we will usually order grades and test scores and any counseling the deceased underwent while they were alive.

As discussed above, in Virginia, sorrow and mental anguish of the beneficiaries is an extremely important element of damages. Depending on the case, it is usually advisable for you and any affected beneficiary to attend grief counseling and seek psychiatric care as well.

How long does a wrongful death claim take until we get the money?

This really depends on the complexity of the case. For instance, if there are low limits, ($300,000.00 or less), no liability issues and no minor beneficiaries, then things are probably going to happen fairly quickly, without even the necessity of filing the claim in Court.  In many instances, if the beneficiaries can agree on the distribution, there will not need to be a hearing and everything can be agreed upon on paper. It is a matter of gathering the information, (death certificate, letter of administration, medical bills and records, prior medical records, earnings information) presenting it to the insurance company, and getting the money. 

If we are dealing with a commercial policy (meaning larger limits in excess of $1 Million), or in any event there are liability issues, and/or there are minor beneficiaries, things are going to take longer. We will likely need to file the claim, and seek Court approval for any compromise. There may be depositions under oath, and other formal discovery.

In such cases, our office will usually conduct video interviews of beneficiaries and people who were close to the deceased, later to be edited. These are then oftentimes combined with excerpts from video depositions of the defendants, videos of the scene of the accident, as well as videos and photos of the deceased provided by the family in order to create something with a tremendous emotional impact to present at a mediation of the claim. Mediation is a procedure whereby the parties attempt to settle before heading to an expensive trial.

The tragic death of our loved one has left us in horrific grief and pain. Some of us can’t sleep. We feel like our lives have been ripped away from us. Are we entitled to damages for grief and our suffering as part of the wrongful death claim?

As set forth above, as between VA and NC, only Virginia specifically and explicitly provides for damages to the beneficiaries for sorrow and mental anguish; however, the North Carolina Statute is far broader and includes many areas which will allow the jury to award damages for loss of society, companionship, comfort, etc of the deceased. While you cannot technically be compensated for your ‘pain’ or ‘anguish’ directly in NC, you can still be compensated for the loss of everything the decedent was to you and would have been to you had he or she not be taken from you by the defendant(s).

Is there anything we can do or should do to help ourselves get through this while we are waiting for this claim to finish, such as counseling, psychotherapy, or psychiatric treatment?

As stated above, in Virginia, grief and anguish of the beneficiaries is compensable, in NC, it is not; however, as a practical matter, there is nothing wrong with doing anything and everything to keep yourself sane during the process. We would always have frank discussions with our clients, however, about what points of discussion with therapists are off limits. Comments for instance such as “I just want this whole thing over with,” will encourage the insurance company to make low ball offers on the claim.

What about the terrible pain my loved one suffered when he or she was killed or treated in the hospital before they died? Are we entitled to recover damages for that?

As set forth above, as between NC and VA, only North Carolina provides for pain and suffering of the deceased as an element of damages. VA does not, but likely makes up for it in allowing you and the other beneficiaries to testify and recover for the pain and anguish your loved one’s suffering caused each of you.

The medical bills associated with the attempts by doctors to save our loved one’s life are huge. What’s the point of bringing a claim for wrongful death if the doctors and hospitals are going to take all the money?

As set forth above, in North Carolina, the total amount that all healthcare providers can recover collectively from the estate of the deceased in a wrongful death claim is $4500 .00. That means that even if there are only minimum limits, there's a good chance that there will be at least some recovery for the beneficiary or beneficiaries who remain.

Unfortunately, Virginia has no such statute; however, our office has often been successful in negotiating with healthcare providers to drastically reduce their claims on the estate, particularly if the recovery is limited by the lack of sufficient insurance proceeds.

If we decide to settle the claim, how will the beneficiaries divide up the money that is available?

If the beneficiaries are unable to agree, the Court will be forced to decide. (see the discussion above under who gets the damages).  As set forth above, minor beneficiaries will almost always be given preferential treatment. It is always better to try to work it out if possible as opposed to letting the Court decide.

Also, for practical reasons, the administrator or the attorney for the estate will need to speak to any ‘fringe’ beneficiaries about either renouncing their share entirely, or accepting a very small share of the money, and signing any proposed distribution Order before sending any such Order to the Court. By “fringe”, we mean, for example, children who had little or no contact with a deceased parent prior to his or her death. Another example would be a father who had visitation with a deceased child, but rarely interacted with the child prior to the death of the child.

Are there any special considerations if some or all of the beneficiaries are minors?

Yes, any settlement with minor beneficiaries will have to be Court-approved. Their money will be held in an interest-bearing account, and not be available until they reach the age of 18. If the minors are particularly young, many Judges encourage the utilization of annuities to use the power of time and investment to provide additional money to the beneficiary, at intervals of several years even after the child turns 18, so that they do not foolishly blow the entire settlement when it becomes available to them at 18 years old.

Am I restricted in my use of the money from a wrongful death claim?

No, only the minors are. Their money will be held in trust as described above.

Are there any special considerations if some or all of the beneficiaries are minors?

Yes. First and foremost, as with any injury-related claim, particularly as a beneficiary, you must do nothing on videos, film, or in photos or on blogs to contradict your assertion that you are grieving and that you have personally suffered a loss, or that your life has been ripped apart, etc.  This is especially true in cyberspace.

For instance, if you are 21 years old in college and you are claiming that you have been devastated by the loss of your parent in a wrongful death claim, it would harm the entire case tremendously if suddenly videos of you dancing on tables and drunk out of your mind three months after your parent’s death appear on a friend’s Facebook page. Not only does it interfere with your potential share, but if, for instance, your mother has already testified that the death of your father has turned you into a grief-stricken, depressed, social recluse who never leaves their dorm room, such a video of you dancing on tables in drunken reverie has just destroyed all of her credibility with the Jury.

The lesson: If you are a beneficiary and you are claiming that you are having a hard time after the death of a loved one, do not do anything inconsistent with that claim, and always assume that if you decide to engage in such activity, someone, somewhere with a cell phone or other digital media is going to capture it and upload it into cyberspace for all to see.

Another example: Comments on your Facebook page or elsewhere in cyberspace that everything is great and you are having a wonderful time in Cancun doing whatever with whomever will clash starkly with your claims that your life has been completely torn apart by the loss of your loved one. So be very careful about not only what you say on Facebook, but about what your friends say to and about your activities during the pendency of any wrongful death claim.

Finally, as stated in connection with grief therapy, above, you do not want to make any comments relating to the ongoing litigation such as “I just want this whole thing to be over with.” The insurance company will seize on that attitude to make a ‘low ball’ offer on the claim.

And if you think these comments, videos or photos will not make it into the hands of the defense insurance company or their attorneys, you are sorely mistaken.

The General Progress of Your Case

How long will my case take?

As we often tell our clients, that is really not a lawyer question. That is a doctor question. That is because it is the doctor, not the lawyer, who determines how long the client should treat in order to recover from their injuries. Only after the course of treatment is completed is it appropriate for the attorney to submit a demand to the insurance company.

Why do I have to finish my treatment before I can settle my case?

Although there are certainly no guarantees, one of the worst situations you can be in a situation where you have settled your case, but you find out, after-the-fact, that that you need substantial, additional treatment. Once you settle your case, you cannot obtain more money. It is done and over with.

Does it make a difference which kind of doctor I go to?

Yes, absolutely. Unfortunately, in this world we live in, there are certain unscrupulous doctors who have never seen a legitimately injured person. In their eyes, anyone who has been in a car accident is a fraud, and if they have retained an attorney, they are a criminal, and deserve to be treated as such.

You need to stay away from these doctors, and we know who they are.

Conversely, there are doctors who are known to be more caring and compassionate about their patients. They err on the side of believing their patients when they tell them they are hurting, and are prepared to advocate for them, if necessary, if they are asked to testify on their patient’s behalf.

These are the doctors who you want to go to, and we know who these doctors are as well.

Why does the paralegal seem to handle everything?

Until your case reaches the stage where you have completed treatment, and the case is ready for preparation of a demand package to the insurance company, 99% of the day-to-day issues relating to your case are merely going to relate to making sure we are up-to-date on the course of your treatment in all medical facilities at which you have treated for your injuries. In addition, the paralegal will be ordering records from each of those physicians, facilities, and health care providers, in preparation of the final demand package. Most of what is necessary to do this is essentially secretarial work and involves utilization of form letters, which is certainly appropriate for the paralegal to handle.

There are times when a question arises, for instance, relating to a choice in a course of treatment or physicians, and its effect on your case. In that circumstance, the paralegal may relate the question to the attorney, or a phone conference will be set up between you and the attorney to discuss the issue.

What kind of communication should I expect with my attorney?

At our office, we have developed a method to ensure that our clients are able to reach the attorney when it is necessary to do so. Because each case, particularly those in litigation, require the undivided attention of the attorney working on it, and because we have a fairly large number of clients, it would be highly distracting and inappropriate if the attorney were to remove his attention from his work each and every time any client called in and had a question.

In many ways, it is similar to making an attempt to personally speak with your doctor while they are in the middle of an examination or in the middle of performing a surgical procedure. Preparation of an injury case is, in many ways the same. Just like surgery, distraction from preparation of a client’s case at the wrong time can throw off the attorney’s concentration and train of thought, and result in a mistake that could negatively impact the case, particularly if they are in the middle of preparing a client’s case for trial or for depositions.

Accordingly, as a solution to this issue, if it is necessary for you to speak with the attorney, a 15-minute telephone conference will be set up between you and the attorney by the paralegal. These conferences are typically held on Tuesdays and Thursdays between 4 p.m. and 6 p.m.. If more time than 15 minutes is required, then the conference will be scheduled for longer than that.

We have found this to be an excellent solution to ensuring good communication with our clients, while at the same time making sure the attorneys have sufficient, uninterrupted time to focus on the tasks involved in each case.

Generally, what kind of expenses do you have in my case?

Typically, each health-care provider, whether it be a doctor’s office, hospital, x-ray facility, or physical therapy center, will utilize a third-party copying service to respond to records requests. These copying services typically charge a fee to produce the copies to our office. The bills and records that you receive through the mail or upon exiting your doctors office are insufficient to present to the insurance company for your demand, as they typically do not have the proper diagnostic codes and information necessary to process the claim.

In addition, there may be some investigative fees involved in tracking down witnesses. We also have standard administrative charges for postage, envelopes, file folders, etc. which typically do not exceed $50.00.

Sometimes, because of the medical issues in your case, it is important that we obtain an opinion letter from your doctor, or maybe even send you to a doctor for an independent examination. Obviously, the physicians charge for their time in preparing these reports, and in conducting an examination. Fees for these reports can sometimes exceed $1000.00. Obviously, we are not going to get into these types of charges without your consent, and even then, only if the potential value of the case warrants such an expense.

Occasionally, we may also see fit to hire other types of experts, such as liability experts to perform measurements of distances and site evaluations, and also economic experts who may assist us in proving the impact of your injuries on your ability to earn wages in the future.

If it is necessary to file your claim in court, there are of course filing fees, and other fees. Please see the FAQ—( If I go to Court, will that increase my expenses? If so, what kind of expenses can I expect? ) below.

Why do I have to pay back my Health Insurance or Medicare or Medicaid out of my settlement?

The potential right of a health insurance company to recover or recoup the funds that they have paid out on your injury claim from any funds that you recover is known as the right of subrogation. As a general rule, in Virginia and North Carolina, health insurance companies are not permitted to subrogate and recoup their monies paid out if you recover in either verdict or settlement; however, there are many, many exceptions.

First and foremost among these exceptions is the right of Medicare and Medicaid to get their money back. You absolutely cannot ignore a Medicare or Medicaid lien on your case. If you do, you may find yourself the subject of a lawsuit by one or both of those entities at some point. The good news is that oftentimes, in certain circumstances, your attorney may be able to negotiate those liens to a lower amount, so that you may obtain more money in your pocket.

Another major exception are health insurance policies that are self- funded and governed by a federal law known as ERISA. You often find these types of policies with large employers, such as shipyards or large factories. Typically, you will receive a letter from them at some point during your case requesting information on your car accident claim. You should never ignore these letters, or it could negatively impact your health insurance coverage. You should forward those letters to your attorney so he can deal with the insurance company’s claimed right to reimbursement of their payments. Again, the good news is that oftentimes this claimed right to reimbursement can also be negotiated to a lower amount by your attorney.

Finally, there are numerous other types of policies which, by operation of either federal or state law, are entitled to claim a lien or right of reimbursement from any settlement or verdict in your personal injury claim. These would include employees of the federal government, military personnel (TRICARE), and state employees. We have, on numerous occasions, also negotiated lower reimbursement amounts on behalf of our clients on these subrogation liens.

What are Policy Limits and why is it important to know them?

The "policy limits" on any insurance policy refers to the amount of coverage that was purchased by the insured person. In Virginia, the minimum amount of coverage one is required to have on their policy is $25,000 per person. In North Carolina, the minimum amount is $30,000 per person. If there is a case with very serious injuries, or potential extensive medical treatment, it is important to know as soon as possible what the policy limits are. The reason is because these limits are going to dictate the maximum amount you can recover from the person who injured you. You do not want to go through extensive, expensive treatments, only to find out that there is insufficient money available in the case to pay for your medical bills. Under Virginia law, if your medical bills from the collision exceed $12,500.00, the defendant’s insurance company is obligated to divulge the amount of their policy limits. You may ask whether or not the person who hit you can be sued for additional amounts above and beyond the coverage amount that they purchased. If the policy limits are all that is going to be offered, why are you limited to the policy amounts? The answer is that there is usually a very good reason why someone has minimum coverage, and that is because they cannot afford more. If you were to attempt to seek a judgment against the individual who hit you, for an amount above and beyond any limits that have been offered to you, it is highly unlikely that you will ever see a penny from it. Yes, there are procedures in place to collect on a judgment, but they are long, arduous, and unlikely to yield any results. You and your attorney’s time would be better spent making sure that there is no additional coverage available through the policies of people who may be related to and live with the defendant and/or the owner of the vehicle.

What is Med Pay?

Medical payments coverage or medical expense coverage are optional coverages that you can purchase with your car insurance policy that provide additional coverage up to an amount of medical bills. For instance, you can purchase $1000.00 or more in medical payments coverage, which would reimburse you for up to $1000.00 or more in medical bills related to your accident, depending on how much coverage you purchased. In Virginia, the amount of coverage is multiplied by the number of vehicles on the policy, up to four vehicles. Therefore, in this example, if purchased $1000.00 in medical payments coverage, and you had four vehicles on your policy, you actually have $4000.00 in medical payments coverage per person on that policy. Please note that this coverage is in addition to any other insurance policies and coverage that may be in existence, including the policy of the defendant, and also your own health insurance coverage.

We highly recommend that you speak to your insurance agent as soon as possible, and purchase as much medical payments coverage as you can afford on your own policy. Please do it now, before you get into a car accident. You cannot purchase this coverage, or any coverage, retroactively to cover you for an accident that has already occurred.

Why do you want to know information about my insurance policy if the other driver is at fault?

Unfortunately, it is often the case that there are many drivers on the road who fail to carry automobile insurance. In Virginia and North Carolina, if your vehicle is insured, then you automatically have something called uninsured motorist coverage (UM coverage), which should be coverage in the same amount as the limits of your liability coverage. What this means, is that in the event that the defendant driver is not insured, your policy will step in to cover you, and to also cover any passengers in your vehicle that may have been injured as well.

We have often seen vehicle owners and our own clients get very nervous and irritated in these circumstances. After all, why should your insurance have to pay for something that the defendant did? At first glance, it does not seem fair; however, it is important to keep in mind that you and/or the vehicle owner have paid premiums over the years precisely for this kind of coverage. In other words, the cost of the automobile insurance policy includes money to pay for uninsured motorist coverage, in the event you are hit by an uninsured motorist.

You can be sure that it is highly unlikely that you will obtain any recovery against the uninsured motorist directly. They are probably uninsured because they have no money, or, they are such a high-risk, that they cannot obtain insurance. Therefore, you should be thankful that you have the coverage that you have, and use it!

The other circumstance where this comes up is in the case where you may have very significant injuries and very high medical bills, and the party that hit you has coverage, but only has minimum coverage. In that case, in the event you carry more than minimum coverage, your policy will step in to make up the difference, and this is called underinsured (UIM) motorists coverage. Let’s take this simple scenario in a Virginia case:

The other driver has $25,000.00 per person minimum coverage
You have $50,000 per person UIM coverage.
That means that once the other driver’s insurance has paid or offered the full $25,000.00 limits of its coverage, you have another $25,000 in coverage available from your own insurance policy, bringing your total coverage to $50,000.00.

Obviously, if you can afford it, you should purchase as much UM and UIM coverage as you can afford, to protect yourself from circumstances where you are hit by an uninsured or underinsured motorist.

I was hit and injured by a hit and run driver and I do not have any way of knowing their identity. Is it possible that I still have a case?

So long as you have a valid insurance policy on your vehicle, your UM coverage should protect you. This is because the unknown vehicle is considered an uninsured vehicle. If you are unable to settle the case with your own insurance company, a lawsuit would be initiated by you against ‘John Doe’, and you would be required to serve your own insurance company with the lawsuit. One important piece of information on John Doe cases : In Virginia, your vehicle does not even have to be impacted or hit in order to recover from your own insurance company. If you can prove that you were run off the road or illegally forced into some barrier or other vehicle by the John Doe driver, then you may be able to recover under the uninsured motorist provisions of your policy. Such is not the case in North Carolina. In North Carolina, you must prove that there was contact between your vehicle and John Doe’s vehicle.

What is a demand letter? How much will my lawyer ask for in the demand?

The demand letter is the final culmination of all the work done by your attorneys and staff in putting together a package to send to the liability insurance company to ask for payment on your claim. One way to think of it is sort of like an invoice or bill, wherein your attorney is asking, on your behalf, that you be paid money in compensation for your medical bills, injuries, pain, suffering, inconvenience, etc.

The letter itself is your attorney’s summarization and characterization of the facts of your accident, and all of your medical treatment, as well as any other issues that need to be addressed that may impact the value of your claim. At this stage of the game, your attorney’s job is to essentially argue your case to the insurance adjuster and insurance company, and help them understand why they need to pay to resolve your claim.

Is absolutely essential that your demand letter and package be prepared by an attorney who is intimately familiar with personal injury law. This is because a personal injury attorney understands what factors are important to insurance companies when they evaluate claims. Oftentimes, the large insurance companies utilize computer programs to assist them in evaluating claims. There are certain types of items that go into this evaluation that will increase the value of your claim, and certain items which will not increase the value of your claim.

Accordingly, when your attorney looks through your medical records, he or she will be looking for specific items to bring to the attention of the adjuster which they know will enhance the value of your claim, and they will mention these items specifically in their demand letter.

Attached to that letter are typically all of your medical bills and medical records related to your treatment from the accident, the police accident report and disposition of the case in traffic court, photographs of the damage to your vehicle and/or your injuries from the accident, information pertaining to any lost wages that you may have from the accident, and if necessary, medical records which predate your accident which may have some bearing on your case. Oftentimes, the attorney may also include special anatomical diagrams, or in certain circumstances, case law and/or statutory law that is relevant to your particular claim.

Can the lawyer settle my case without me knowing about it?

No!!! It is your attorney’s job to keep you informed about settlement offers on your claim, and he is absolutely prohibited from settling your case without your consent. Typically, what we will do, when we obtain the first offer from the insurance company on your claim, is to contact you and advise you about the settlement offer, and of our opinion as to where the case may end up in terms of settlement. At that point, decisions will likely be made by you and the attorney together as a range of figures that would be acceptable as settlement of the claim. If it is clear from an early stage that the insurance company is making an improper evaluation of the claim, i.e. they are too low, then it is possible that the client and attorney may decide together at that point to simply discontinue negotiations and file suit.

In most circumstances, however, the best decision at that point is to discover the insurance company’s highest authority on the claim, and make the decision together as to how to proceed, after obtaining that final and highest offer.

The only exception to your consent on settlement of your claim is where you simply disappear, and after making reasonable efforts, we are unable to find you. Unfortunately, this has happened a few times, albeit on very rare occasions. In that circumstance, our retention contract with you permits us to make a settlement decision on your claim that we feel is in your best interests. This may be absolutely essential, to avoid the running of any statutes of limitations in the loss of any potential recovery on your claim.

After obtaining a settlement on your behalf in that circumstance, your portion of the settlement funds would be held in an escrow account until such time as the relevant state bar ethics provisions require us to release the funds. After that, it is possible that your money would have to be paid into a state fund.

It is therefore essential that you stay in communication with your attorneys, and make sure they are aware of any changes in your address and/or phone numbers, in order to avoid this situation, and to make sure that we are able to keep you fully informed as to the status of your claim.

How do I know what my case is worth? What factors go into determining that?

Without a doubt, before we get into any of the other factors, the number one factor to keep in mind are the automobile insurance policy limits of the defendant driver and also on your policy. For all practical purposes, the insurance policy limits are just that—they are the limits of the amount of money that you are likely to be able to obtain on your claim. The exception is going to be where you have a commercial defendant, such as a trucking company. Besides the fact that these companies typically carry in excess of $1 million in coverage, you may also have access to the substantial assets of the company, in the event the coverage is insufficient.

After that, probably the number two item that affects the value of your claim is you. No matter what kind of attorney you have, if you are someone who is not credible and believable, or are willing to make the effort to follow your attorney’s advice to make the best possible presentation in the event you need to go to court, there is little that your attorney can do to change that. Are you someone that a potential jury would be happy to award money to compensate them for their injuries? Do you have a credible work history that has been impacted by the injuries you suffered in collision? Have you ever been convicted of a felony, or other crime involving lying, cheating, or stealing? If so, this may, unfortunately, negatively impact your credibility and the value of your claim.

The third item that affects the value of your claim is the reputation and preparation of your claim by your attorney. If your attorney has no track record of litigation of cases or successes against insurance companies, then it is unlikely that the defendants insurance company is going to pay an amount that is reasonable in terms of settlement short of going to court. If, on the other hand your injury lawyer has had a great deal of experience in dealing with insurance companies and litigating claims against them, and has properly prepared your demand package, it is much more likely that you are going to receive a fair settlement offer on your claim, without the necessity of proceeding to court.

Other than the insurance limits, your own personal credibility, and the effectiveness and reputation of your attorney, the other typical factors that go into determining what any particular case is worth are really too numerous to mention here; however, here are just a few: whether the other driver was clearly at fault; the severity of the impact to your vehicle or the vehicle you were riding in; available evidence of the severity of that impact; the severity of your injuries, i.e. did you have any broken bones?; did you require surgery?; how long was your recovery?; do you have permanent injuries? are you going to require additional medical procedures due to your injuries from the collision, and what is the potential cost of those procedures?; do you have lost wages as a result of the collision and can you clearly document those losses?; and, do you have permanent work restrictions as a result of your injuries from the collision?

What if I was hit by a drunk driver? Does that make a difference in the value of my case?

Yes, if you were hit by a drunk driver, this can have a tremendous impact on the value of your claim. In Virginia, if the defendant is found to have a blood alcohol level in excess of .15% on the blood alcohol report, you are automatically entitled to sue for punitive damages, in addition to the amounts you are going to recover for your injuries. In North Carolina, defendant exceeded the legal limits, and, it appears that his intoxication contributed to the accident, you’re also going to be entitled to punitive damages.

What punitive damages are, are just what they sound like—punishment of the defendant for driving drunk. This entitles your attorney to make the argument that not only is the jury entitled to award damages to compensate you for your injuries, but they are also entitled to award damages to make an example out of the defendant, or to punish him or her so that others will be deterred from driving drunk. This can be a very powerful argument in front of the jury, and the insurance companies know this, so they typically value these claims much higher than they would a regular injury case.

If you are hit by someone whom you suspect may be intoxicated, it is very important, if you are at all able, to make sure that either you and/or any of your passengers are in a position to observe the level of intoxication of that driver. Although the police will certainly perform sobriety tests on that individual, or any other observations are certainly relevant, and may enhance your ability to obtain a larger verdict for punitive damages. For instance, was this individual slurring his or speech? Was there a strong odor of alcohol about their person? Were they falling down or stumbling upon exiting the vehicle? Were they able to walk a straight line, or did they sway to and fro as intoxicated people often do?

Clearly, the more you are able to show that this person had no business getting behind the wheel of a multi-ton vehicle, the better chance you have of proving you are punitive damages claim against that person.
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Areas of Practice
• Automobile Accidents & Injuries
• Railroad Accidents & Injuries
• Truck Accidents
• Brain Injury
• Spinal Injury
• Pedestrian Injuries
• Slip & Fall
• Burns & Scars
• Wrongful Death
• Workers Compensation
• Nursing Home Malpractice
• Neck & Back Injuries
Contact Information
Norfolk Office
700 Newtown Road, Suite 112, Norfolk, VA 23502
Telephone: 888-694-1671
Fax: 757-455-6757
Email: info@booboolaw.com		 North Carolina Branch Office
507 E. Main St., Suite K, Elizabeth City, NC 27907
Telephone: 888-694-1671
Email: info@booboolaw.com