Articles Posted in Relevant Personal Injury Cases

Virginia personal injury cases often involve the use of expert witnesses to lend further credibility to how an accident took place or the extent of a party’s injuries. Sometimes, however, these expert witnesses could be biased or appear to have an interest in the case that could significantly alter the presentation of accurate facts during trial.

In a recent Supreme Court of Virginia opinion, the court had to consider whether evidence of an expert witness’s financial relationship with an insurance company was admissible. Following a car accident where the plaintiff was hit from behind by the defendant’s vehicle, the plaintiff experienced significant physical pain in addition to increased anxiety and depression. After the collision, the plaintiff filed a lawsuit against the defendant for $150,000 in damages.

The defendant’s auto insurance company retained an attorney to represent her in the case, who hired an orthopedic surgeon to serve as an expert witness. This expert witness previously worked with the attorney on numerous occasions and had been paid by the defendant’s insurance company for his services even though they did not directly hire him. During the trial, the plaintiff moved to introduce evidence of the expert witness’s previous relationship with the defendant’s attorney and auto insurance company. The lower court denied the plaintiff’s request, arguing that there was no direct relationship between the expert and the insurance company, so she could only introduce evidence of the expert’s previous work testifying on behalf of the attorney’s clients.

A Virginia appellate court recently issued an opinion addressing whether a plaintiff’s misidentification of a defendant was a “misnomer” or “misjoinder.” The case illustrates the importance of a thorough investigation when pursuing any type of Virginia personal injury claim.

According to the court’s opinion, the plaintiff was a passenger in a vehicle when it was hit by another car after sunset on Christmas Eve in 2016. The record indicates that the other driver ran a red light while making a left turn and hit the vehicle carrying the plaintiff. Approximately two years after the accident, the plaintiff filed a complaint against the other vehicle’s driver. The plaintiff alleged that the driver was negligent in several ways, including failing to keep a proper lookout, maintaining his vehicle, applying his brakes, and obeying traffic signals. The complaint focused on the negligent operation of the other vehicle, and no cause of action against the owner of the car that was carrying the plaintiff.

The plaintiff’s complaint identified the vehicle’s driver as the vehicle’s owner, when, in fact, the owner’s son was driving the car at the time of the accident. The plaintiff misidentified the driver because the police report reflected that the father was charged with violating traffic codes. The plaintiff amended the complaint to reflect the correct driver, after that driver’s insurer notified him of the misidentification. In response, the defendant filed a plea arguing that the new complaint was time-barred. The lower court ruled that the misidentification was a misjoinder, not a misnomer, therefore ruling that the statute of limitations barred the complaint.

Recently, the Virginia Supreme Court issued an opinion stemming from injuries a student suffered while riding a school bus. The plaintiff was a passenger on a school bus when a car slammed into the bus. The student’s family filed a lawsuit against the car’s driver, the bus driver, and the City of Richmond School Board (the City), seeking damages of $1.2 million for her injuries. The car driver had insurance coverage totaling $125,000. The City was self-insured through a risk pool managed by a third-party, VACORP. This third-party provides uninsured/underinsured motorist (UIM) coverage to anyone who suffers injuries while occupying a qualifying auto. The school bus, in this case, qualified under the contract.

The contract provided a $1 million limit for coverage relating to UIM claims. The agreement states that VACORP agrees to pay all sums the “covered person is legally entitled to recover”, from the owner or driver of the uninsured or underinsured vehicle. The plaintiff and VACORP disputed the available coverage to the City under the UIM provisions. As a result, the plaintiff filed a declaratory judgment, and the parties filed cross-motions for summary judgment. The defendant argued that Code § 22.1-190 and Code § 22.1-194 provides a cap of $50,000 on UIM coverage, negating any contractual agreements between the parties. The plaintiff contended that the statute set a minimum and not a cap. The trial court found in favor of the plaintiff, and the defendant appealed.

Under the relevant portion of § 22.1-190, school boards must certify that every school vehicle obtains a certificate of self-insurance of at least $50,000 for injury to one person. Additionally, the policy must provide coverage for losses caused by an uninsured or underinsured motorist. The statute does not have a provision that forbids a school board for obtaining a contract through a pool for more than $50,000. Therefore, the court concluded that Code § 22.1-190 does not act as a statutory cap.

After an individual suffers an injury in a Virginia accident, they may hold the at-fault party responsible for the damages and losses they sustained. Typically, establishing the cause of an injury is the first and arguably most critical part of a Virginia plaintiff’s injury claim. In some cases, evidence may prove that the defendant engaged in apparent negligent conduct that resulted in the victim’s injuries. However, more often than not, the plaintiff bears the burden of establishing the other party’s negligent behavior. In instances where a jury or fact finder determines that a substantial factor in the conduct that led to the plaintiff’s damages was a natural event, the defendant may not be liable.

These “force of nature” defenses are typically known as “Act of God” defenses. Legally, an “act of God” suggests that the event had two defining characteristics. These two qualities are that the substantial factor was a natural, but unavoidable occurrence that caused damage, and the event was utterly unforeseeable. Defendants generally need to establish that this force of nature was the complete cause of the accident.

For example, recently, a state appellate court addressed the “Act of God” defense in a personal injury case stemming from a car accident. In that case, a 16-year-old driver hit a pedestrian and his dog when the pedestrian was in a cross-walk. Amongst other issues, the girl argued that the sun temporarily blinded her from seeing the man and his dog in the cross-walk. During a deposition, she conceded that she visited the same store over a dozen times on sunny days; she had sunglasses that she did not wear, and that she did not use her vehicle’s sun visor. The court, in this case, affirmed the trial court’s ruling that the “Act of God” defense did not apply. The court reasoned that the driver did not present any evidence that the bright sunlight was so extraordinary and unexpected to render it unavoidable.

Recently, a state court issued an opinion in a Virginia insurance dispute stemming from a plaintiff’s request for damages through his uninsured motorist coverage. According to the court’s opinion, a special needs child was transported on the school bus while strapped and secured in his seat with a harness. The harness was designed to aid in the supervision of children with disabilities. While he was restrained in his seat, he witnessed two classmates kick, slap, choke, and spray chemicals onto another student. Further, the classmates struck the plaintiff numerous times while he was restrained. Following this event, the plaintiff’s family filed a claim with their automobile insurance policy, under the underinsured/uninsured motorist provision.

The Virginia insurance company argued that its coverage did not apply to the plaintiff’s situation because it did not arise from the common use of the school bus. It further contended that the injuries resulted from specific “implements,” such as the chemical spray, a flyswatter, and the hands and feet of the assailants. The plaintiff asserted that the assault took place when the vehicle was being used for its typical purpose of transporting children with disabilities. Additionally, the plaintiff argued that the harness made it easier for the assault to occur.

Virginia uninsured motorist clauses are standard provisions found in automobile insurance policies. These clauses provide drivers, passengers, and family members with a means to recover damages if they are involved in an accident with an at-fault uninsured or uninsured driver. Virginia insurance companies will often deny coverage by claiming that the injuries did not result from the “ownership, maintenance, or use,” of the vehicle. Courts have held that the vehicle’s use does not need to be “the direct, proximate cause of the injury,” however, there must be a causal connection between the injuries and the use of the vehicle as a vehicle.

Under Virginia law, plaintiffs must comply with the statute of limitations when filing a personal injury lawsuit or starting any civil court procedure. The statute of limitations outlines the amount of time a Virginia plaintiff has to file a lawsuit. In most cases, the statute of limitations typically begins when the incident giving rise to the claim occurred. This is often referred to as “accrual” of the cause of action. However, there are specific exceptions to the Virginia statute of limitations that may extend the time a party has to commence a lawsuit. These exceptions depend on the type of accident, plaintiff, defendant, and relevant extenuating circumstances.

Generally, under Virginia law, plaintiffs must bring personal injury, product liability, and medical malpractice, and wrongful death claims within two years of the incident. Property damage and trespass claims must comply with the five-year statute of limitations. Plaintiffs who fail to file an action within the appropriate time limit may risk case dismissal and forego any recourse for damages they sustained.

There are specific rules regarding the statute of limitations for Virginia medical malpractice actions. Virginia medical malpractice lawsuits that arise from, foreign objects left in a patient’s body, fraud, concealment, or intentional misrepresentation, negligent failure to diagnose cancer or malignant tumor, and cases on behalf of children all have specific statutes of limitations. Further, the statute of limitations may be tolled in cases where the plaintiff has had a disability, is incompetent, or a minor, or if the defendant engaged in fraud. Tolling allows plaintiffs additional time to file their lawsuit against a Virginia defendant.

Generally, when a tragic accident occurs and someone is at fault, Virginia state law allows people injured in the accident to bring a civil lawsuit against the at-fault party in court. These lawsuits, if successful, can result in the injured victims receiving monetary compensation for their injuries, including money for lost wages, pain and suffering, and past and future medical bills. However, there are exceptions to whom you can sue and who can be held liable for accidents. An important doctrine to understand is sovereign (or governmental) immunity, which protects the government from personal injury lawsuits for actions arising out of or related to official duties. As a result, there are some cases in which accident victims may be unable to recover legally for their injuries because the responsible party is governmental.

To understand this concept, take a recent Virginia appellate court case that arose when a fire hydrant had an insufficient water source to fight a fire. According to the court’s written opinion, the case, a wrongful death lawsuit, was brought against the city when the deceased person died in a tragic fire. The firefighters who responded to the burning building attempted to get water from the closest fire hydrant, but the water flow was insufficient. The firefighters had to go to another hydrant, 1,000 feet away, and by the time that they returned with the water needed to fight the fire, the victim had died.

The victim’s estate brought a wrongful death lawsuit against the city. The city responded with a request to dismiss the lawsuit, claiming sovereign immunity. Sovereign immunity in Virginia protects a city from being sued for actions that it takes to carry out governmental functions. Because of that doctrine, the court dismissed the plaintiff’s case. The court reasoned that establishing and operating fire hydrants to help firefighters is a governmental function, and the victim’s estate could not bring suit against the city in this case.

Multi-vehicle car accidents in Virginia can be challenging for plaintiffs due to the state’s strict contributory negligence law. Under Virginia’s contributory negligence law, a plaintiff is not permitted to recover compensation for their injuries if the court finds that the plaintiff was even 1% at fault for the accident resulting in their injuries. The issue of contributory negligence frequently arises in Virginia multi-vehicle accidents because determining liability can be confusing when so many parties are involved. Inaccurate or incomplete accident reports can result in incorrect fault determinations and bar an accident victim’s claim to recovery. Additionally, Virginia defendants will often claim that the plaintiff’s injuries were not a foreseeable result of the defendant’s actions. These commonly occurring issues can present serious difficulties for Virginia car accident victims.

For example, recently, a federal appellate court issued an opinion stemming from a multi-vehicle chain-reaction accident. The case presented issues that Virginia plaintiffs often encounter during their injury claims. In that case, the defendant rear-ended his employer’s truck into another car, causing a severe traffic backup. About 10 to 15 minutes after the accident, the plaintiff approached the backup and stopped her vehicle. However, the driver behind her failed to notice the traffic backup. The driver collided with the woman, resulting in the woman suffering major physical injuries. The woman filed a personal injury lawsuit against the driver who caused the initial crash, as well as his employer.

In situations such as this, courts determine liability by evaluating the causal relationship between the defendant’s negligence, if any, and the accident that resulted in the plaintiff’s injuries. Typically, Virginia courts assess liability based on proximate cause and whether there were any superseding reasons for the accident. Some determining factors are when and how the accident occurred and whether the plaintiff’s injuries were a foreseeable result of the defendant’s actions.

Recently, the Virginia Supreme Court addressed an appeal stemming from personal injuries a family suffered when mold developed in their new home. The family filed a lawsuit against the construction company that built their house and later unsuccessfully tried to remediate the mold. The family claimed that the company failed to act “skillfully, carefully, diligently, in a good, workmanlike manner,” and that the company’s conduct deviated from acceptable standards. The family further contended that the company’s negligence forced them to abandon the home because of the various physical symptoms that the mold exposure had on the family. The lower court dismissed the family’s claims, and the family appealed the ruling based on breach of contract, negligent construction, negligent repair, and negligence per se.

Under Virginia law, home occupants who wish to bring a personal injury claim against a home builder can sue based on various causes of action. Some common causes of actions include contract disputes, tort claims, warranty breaches, strict liability, and fraud. Virginia statute of limitations imposes a 5-year time limit to file contract dispute and property damage lawsuit and two years for a personal injury lawsuit against a home builder.

Challenges arise when the tortious conduct causes injury after the new owners take occupancy of the home. In these situations, Virginia law requires recovery only if “peculiar circumstances” establish that the construction company’s negligent acts created an imminent or inherent danger. When the tortious act does not cause an immediate threat to the injured party, the builder is only liable to the party with whom they contracted. In these cases, the plaintiff must meet the “source-of-duty” rule. This means that home builders are only liable for misfeasance and malfeasance, not for nonfeasance. Nonfeasance occurs when a party fails to act even when a duty to act exists. Misfeasance is when a party wrongfully performs a lawful act. Finally, malfeasance occurs when a party engages in an unlawful, or dishonest act.

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