Virginia Injury Attorney Blog

In O’Brien v. Glenn, 80 Va. Cir. 188 (Rockingham Feb. 17, 2010), Rockingham Circuit Court opined on the tort of “negligent entrustment” in a car accident case. Defendant relied on the Virginia Supreme Court’s test in Denby v. Davis, 212 Va. 836, 838 (1972)(emphasis in original): “whether the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others”.

However, O’Brien noted that subsequently the Virginia Supreme Court in Turner v. Lotts, 244 Va. 554 (1992) “recognized that past negligent acts, if sufficiently proven, could make a driver ‘unfit’ under the Denby test”. 80 Va. Cir. at 189. Thus, the circuit court denied defendant’s motion for summary judgment, finding plaintiff’s allegations that the owner knew about the driver’s pre-accident “reckless conduct” behind his wheel sufficed for the car crash action.

In Lagumen v. Richardson, 80 Va. Cir. 51 (Chesapeake Jan. 21, 2010), Chesapeake Circuit Court adjudicated the degree of certainty or probability required for a medical expert opinion to be admissible. In that medical malpractice case, the treating physician equated the legal touchstone of “reasonable degree of medical certainty” with being “more likely than not”. Id.

Lagumen cited Graham v. Cook, 278 Va. 233, 246 (2009)(medical malpractice)(“fifty-one percent”); Fairfax Hosp. Sys. v. Curtis, 249 Va. 531, 535-536 (1995)(medical malpractice)(“into the realm of reasonable probability”); Hoffman v. Carter, 50 Va. App. 199, 215 (2007)(workers’ compensation)(“equivalent to the preponderance of the evidence standard”); Black’s Law Dictionary at 1273 (8th ed. 2004)(“more likely than not”); and various out-of-state cases and journals. Id. at 52-55. It upheld the admissibility of the doctor opining “more likely than not”.

In Lents v. Vetter, 80 Va. Cir. 268 (Fairfax Apr. 2, 2010); Fairfax County Circuit Court applied Va. Code Ann. §8.01-20.1 in a medical malpractice action. Section 8.01-20.1 requires plaintiffs to have medical expert certification of a prima facie case before requesting service of process.

In Lents, defendant answered the pending medical malpractice complaint voluntarily without plaintiff ever having requested service. Holding that “Section 8.01-20.1 is in derogation of the common law and should be strictly construed,” the court found that by voluntarily answering defendant had waived service of process and thereby could not demand expert certification. Id. at 270-271.

In Salzman v. Kanchev, 80 Va. Cir. 139 (Chesapeake Feb. 4, 2010), Chesapeake Circuit Court addressed stacking of uninsured and underinsured liability insurance coverage. The declaratory judgment action involved a car crash on Military Highway in Chesapeake, Virginia.

“When a disputed policy term is unambiguous, a court applies its plain meaning as written.” Virginia Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 81(2009). “However, if disputed policy language is ambiguous and can be understood to have more than one meaning, a court must construe the language in favor of coverage and against the insurer.” Id. (finding insurance policy ambiguous and coverage for a vehicle accident).

In Salzman, the Court opined the policy of Progressive Specialty Insurance Company was unambiguous. Hence the UIM coverage for the car wreck injuries was only $50,000.00.

Christine M. Tigges of Hamilton, Virginia, was covered by United States Automobile Association (“USAA”) for $300,000.00 of personal injury damages under an automobile liability insurance policy. She then also apparently was covered by USAA for car accident under an umbrella insurance policy for an additional $1,000,000.00.

On August 9, 2008, in Loudoun County, Virginia, Ms. Tigges was cited for failing to yield the right of way to Rebecca M. Cooper of Berryville, Virginia, into whom she crashed. That car crash victim suffered multiple serious injuries requiring surgeries and numerous other medical treatments and care continuing through the present and costing more than $213,225.78.

Despite repeated amicable demand by Mr. Waterman for full fair compensation for Ms. Cooper, USAA haughtily tendered only the limits of its first layer of insurance coverage, $300,000.00. Unfairly, that amount is a little more than the victim’s mounting $213,225.78+ medical bills, not full compensation for her car collision pain, suffering, inconvenience, permanency, and other damages; so is unacceptable.

Accordingly, Mr. Waterman is pursuing a personal injury lawsuit against USAA’s offending insured motorist in Cooper v. Tigges, No. CL-63034 in Circuit Court for Loudoun County, Virginia. Jury trial of that car accident action likely will be in 2012.

The victim also is covered for personal injuries sustained in the car wreck by at least another $250,000.00 of underinsured motorist insurance (“UIM”) with her own insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), which by Virginia law is stacked on top of the offending driver’s $1,300,000.00 of combined automobile liability/umbrella insurance. But State Farm has not tendered any of its UIM coverage, so necessarily has been named and served as an adverse party in Cooper v. Tigges too.

Continue reading " Virginia: Car Accident – a Lawyer’s Intolerance " »

On July 15, 2011, Mr. Waterman settled the car accident claim of a Williamsburg resident. The victim was a guest passenger in Fairfax County, Virginia, when an inattentive offending motorist from Great Falls rear-ended the vehicle from Annandale in which he was riding.

The Williamsburg victim suffered significant personal injuries that necessitated emergency medical attention at INOVA in Northern Virginia and follow-up back on the Peninsula. Mr. Waterman was able to resolve the car crash claim with the insurance adjuster based in Rhode Island without suit, simply using mail, telephone, telefax and email.

In Government Employees Insurance Co. v. United Services Automobile Association, No. 100332 (Apr. 21, 2011), the Virginia Supreme Court found no insurance coverage in a declaratory judgment action for a car accident in Hampton, Virginia; based on the offending driver not being a permissive user. Both the owner’s liability policy with GEICO and the unauthorized driver’s uninsured/underinsured “(UM/UIM”) policy with GEICO Indemnity predicated coverage on permissive use. Id. at 1-2.

In GEICO, recounted Justice Mims, the owner’s daughter was a permittee, but the driver who caused the car accident was not a legitimate “second permittee” of her under the particular case facts. Id. at 11-18. That left United Services Automobile Association (“USAA”), the victim’s UM/UIM carrier, as the only insurance for the collision injuries.

House Bill 1605 passed during the General Assembly’s 2011 Session, and became effective July 1, 2011. It made fraudulent falsification of patient records a class 1 versus a class 3 misdemeanor; but does not alter any commonlaw jurisprudence about fraudulent falsification in civil medical malpractice cases.

Notably, House Bill 1605 also added an “intent to fraud” requirement to the criminal offense; so although now criminal penalties are stiffer, threshold criminal liability is more difficult to prove. But in a medical malpractice case, plaintiff still need only prove falsification by the traditional preponderance of the evidence standard.

During its 2011 Session, Virginia’s General Assembly passed companion House Bill 1746 and Senate Bill 1145. They extend from 2 to 20 years the limitation period within which an infant or incapacitated victim of sexual abuse can file a civil personal injury lawsuit.

This statutory amendment recognizes that many sexual abuse victims suffer protracted delays in reporting and suing due to a variety of factors such as fear, guilt, repression and/or otherwise caused by the underlying criminal offense. It became effective on July 1, 2011.

In Addison v. Jurgelsky, No. 092361 (Jan. 13, 2011), the Virginia Supreme Court reversed dismissal of a medical malpractice action. It held that a single co-administrator acting alone as Plaintiff could file, but not maintain, suit under Virginia’s Wrongful Death Act, Va. Code Ann. §8.01-50, et seq. Id. at 3-5.

Justice Mims in Addison continued that the initial filing by the one co-administrator tolled the statute of limitation for the wrongful death claim in Tazewell County, Virginia; and that it was permissible to join the other co-administrator as Plaintiff after the statute of limitation had run. Hence it was error to grant the motion to abate for nonjoinder and the plea of the statute of limitations. Id. at 9.