Uninsured/Underinsured Automobile Insurance Coverage

If you are injured in a motor vehicle accident in which another driver is at fault, you may be surprised to learn that the other driver does not have sufficient insurance to compensate you for your injuries. Under Virginia law you are entitled to payment for medical expenses, lost wages, pain & suffering as well as damages for change of lifestyle. However, Virginia only requires drivers to have a $25,000 bodily injury policy and in some circumstances, even allows drivers to be uninsured. If you are seriously injured, your total losses could easily exceed the financial cap of the other driver’s insurance policy. How do you protect yourself from drivers who have inadequate insurance?

The answer is to purchase uninsured/underinsured coverage from your own insurance provider. All insurance companies offer uninsured/underinsured coverage. This coverage provides compensation to individuals injured as a result of another driver’s negligence when the driver at fault does not have adequate coverage to compensate you for all of your injuries.

Beware! Uninsured/underinsured coverage can be tricky. Virginia law only requires payment from this coverage after all available third party insurance is exhausted. For example, if you sustain $50,000 in injuries and the responsible driver has $50,000 of insurance available and you purchased $50,000 of uninsured/underinsured coverage, you will receive nothing from your own policy. On the other hand, if you sustain $100,000 in injuries and the responsible driver only has $50,000 of insurance available and you have $100,000 of uninsured/underinsured coverage, you may be able to recover up to $50,000 from your own insurance policy. We recommend that you purchase $1 million or the most uninsured/underinsured coverage that you can afford.

Virginia Case Allows Stacking of uninsured/ underinsured coverage

In the 2009 case of Virginia Farm Bureau Mutual Insurance Company v. Williams, the Virginia Supreme Court held that an individual injured in a car accident may “stack” the insurance coverage available under her own automobile insurance policies. In this case, a passenger was injured in an automobile collision. The combined insurance policy limits of the two automobiles involved in the accident was insufficient to cover her losses. The Virginia Supreme Court permitted the injured person to combine (or “stack”) the uninsured/underinsured policy limits from the three automobiles owned by her father. Because the Court permitted stacking, the total benefits available to her were increased and available to compensate her for the injuries she suffered in the accident.

The case is significant because in the past Virginia courts disallowed stacking. However, it is important to note that the decision was based on contract interpretation and not public policy. Many insurance companies have changed their policy language to avoid stacking. Nevertheless, the case demonstrates why it is so important to have adequate uninsured/underinsured coverage and a knowledgeable attorney on your side.

Hire A Personal Injury Lawyer With Experience

If you are injured in an automobile accident, it is critical that you hire an experienced law firm, such as Gross & Romanick. The Virginia insurance scheme is complex and extraordinarily difficult for an individual to navigate. Beware of lawyers who take automobile injury cases on an occasional basis but do not know how to seek the maximum insurance coverage that is available to the injured person.

What to do if you are involved in an automobile accident

Gross & Romanick, P.C. recommends:

 

At scene of collision:

1. Call for medical assistance if anyone is hurt;
2. Call the police. Obtain the responding officer's business card and any information exchange form;
3. Exchange insurance and contact information with the other driver;
4. Obtain all available Witness information including a name and phone number (police do not always put this information in their reports);
5. Take pictures of cars at the scene of the accident and photograph the surrounding area - if not possible at the scene, do it later so long as it can be done safely. 

Within 24 hours: 

1.     Seek medical attention - your health is irreplaceable;

2.     Document lost wages or, if self-employed, you will need documentation of economic losses;

3.     Contact and notify all insurance carriers - your own auto insurance carrier and the carrier of the responsible parties;

4.     Start the process of repairing your vehicle and/or obtaining a rental car;

5.     Do not give formal statements to anyone without consulting a lawyer first – insurance companies will use your statements against you if it will save them money;

6.     Find an experienced Personal Injury Lawyer if you have injuries.

Within the first week: 

1.     Medical treatment - if you are hurting or think you may be injured do not wait too long or insurance company will claim that you were not injured in the accident or you would have sought care;

2.     Medical records - be very careful what you say to medical providers. It will be written down and may be used against you later by the insurance defense lawyers. Make sure all of your injuries are documented. Make sure records state that you are seeking treatment due to auto accident;

3.     Start a pain diary – a pain diary can be used as proof of the problems and discomfort you experienced and will help you recall and accurately describe the suffering you experienced;

4.     Repair or replace your car - try to get responsible party’s insurance to pay. If the other party’s insurance is not cooperating or is being difficult, make a claim against your own insurance company, it is one of the reasons you bought insurance . Demand new parts and quality work. It is best if you can use a dealer or shop that works with the insurance company.   If the vehicle is very substantially damaged - try to recover the diminished value of the vehicle. If the car is a total loss - you are only entitled to fair market value and unfortunately not entitled to any amount based upon the balance of any loan on the car. Research the value of the car online and in the newspapers;

5.     Do not sign any releases or other document until you have spoken to a lawyer.  If you do not have a lawyer, then only release information regarding vehicular damage and loss of property. Do not release any claims for personal injury. Be sure to read any release very carefully.  

Within 30 days:

1.     Hire a lawyer if you have any personal injury. Don't wait to hire a lawyer or you may harm your legal case and not receive the full compensation you deserve for your injuries;

2.     Obtain the Police Accident Report;

3.     Attend all court proceedings if the other party was charged with a traffic violation;

4.     Locate all insurance available to pay for your medical bills;

5.     Always remember that the insurance companies are more concerned about minimizing their payout than helping you. Virginia has a very complex insurance scheme and the insurance companies will not tell you how to navigate the maze and in some cases may even misrepresent your rights.

Winning your PI case at Trial

               Trial of a personal injury case, like the trial of any other type of case that proceeds through the judicial system, is governed by laws developed over hundreds of years.  Accident victims can only recover a money judgment upon proper proof at trial.

                The accident victim must prove that the other driver was negligent and that the other driver’s negligence caused the accident victim’s particular injuries.  A plaintiff cannot recover for injuries existing prior to the accident, but can recover for an exacerbation of pre-existing injuries.  If the other driver (the defendant) can demonstrate that the injury was not the result of the accident, but rather from some other cause, then the plaintiff cannot recover for that injury.

               The personal injury plaintiff must prove the case by a preponderance of the evidence.  This means that the plaintiff must prove that it is more likely than not (1) that the defendant breached some duty of the road, such as ignoring a stop sign or failing to pay full time and attention; (2) that the defendant’s breach of such duty caused the plaintiff’s damages; and (3) that the plaintiff’s injuries are related exclusively to the accident or were exacerbated by the accident.

A major concern for accidents that happen in Virginia is that Virginia is a “contributory negligence” state, which means that the plaintiff must be entirely free of fault for the accident.  If the Plaintiff contributed to the accident in any way, then the Plaintiff is barred from recovery.  This does not mean that the Plaintiff needs to be free of any violation of traffic laws, only that the Plaintiff be free of negligence that causes the accident.  By way of example, consider a Plaintiff that is texting at a red light when she is rear ended by a Defendant.  Texting in Virginia while driving (even if stopped at a light) is against the law. However, the Plaintiff in this case may still recover because the Plaintiff’s texting did not cause the Defendant to rear-end the Plaintiff’s vehicle.  Rather, the cause of the rear-ender was the Defendant’s failure to keep a proper lookout and failure to brake in a timely manner.  However, one should note that even a subtle change in the facts could bar Plaintiff’s recovery.  If the Plaintiff failed to accelerate when the light turned green because she was texting and did not notice the light change, then the Plaintiff may be prevented from recovery. 

               The most important issue in the vast majority of personal injury cases are the issues of damages and causation.  Most of the time, the Defendant will concede negligence.  In a great number of cases, the Defendant will concede that the Plaintiff was not contributorily negligent.  However, the Defendant will vehemently suggest that the Plaintiff’s injuries are inflated, nonexistent or not a result of the accident.  Since the injuries in an automobile accident case results in medical expenses, it is imperative that anyone considering a personal injury case ensure that the medical documentation regarding treatment correctly and accurately reflect that nature and cause of injury.  Medical documentation that suggests, even off-handedly, that a concussion, for example, was caused by a fall rather than the automobile accident at issue can present a large hurdle to overcome at trial.  Additionally, in the event that the injured party loses time at work, an employer that fails to document that the reason for missing work resulted from injuries sustained in the accident can reduce the likelihood of recovering lost wages. 

               In order to be successful at trial, it is imperative that the potential personal injury plaintiff prepare proof that the other driver’s negligence caused the accident, and secure documentation of damages (medical, employment, etc.) resulting from the accident.  This evidence, combined with a skilled trial lawyer should result in a personal injury verdict that is full and fair compensation for any victim of an automobile accident.

If you are injured in an accident, consider using an experienced law firm, such as Gross & Romanick, P.C.  Call us at 703-273-1400 or send us an e-mail to law@gross.com.  Visit our website at www.gross.com and download our Personal Injury App to your smartphone or iPad.