NUTS AND BOLTS OF A PERSONAL INJURY CASE

By Daniel J. Hebda, Esq.

In the aftermath of a painful and traumatizing personal injury accident, the whirl of paperwork and the antics of insurance companies often produce just as much anxiety and uncertainty as the accident itself. Although personal injuries sadly occur every day, no one expects them to happen, and consequently very few people are well prepared to take their case to an attorney who can help them through the process of being made whole. This article discusses the “nuts and bolts” of a personal injury case to give you the tools you need to assess and prepare, should you need to bring your case to an attorney for help.

Although each “personal injury” case takes its own specialized course depending on its facts, all cases share one theme: making you whole again after being hurt by some third party. This can happen when you slip and fall at a store, when a neighbor’s dog bites you, or when you are rear-ended while sitting at a stop light.  In all these scenarios, making you “whole” from your injuries generally revolves around two questions: “Who is responsible?” (known as liability), and “How much money should they pay?” (known as damages).

LIABILITY: Who is Responsible?

Liability starts with the facts—the story of what happened. Slip-and-falls, dog bites, and car crashes happen in split seconds. That is why it is crucial to know what to do before the accident occurs. Your keen recollection of the event only goes so far with insurance companies and juries. To add serious credibility to your case, you need documentation and proof. Here are a few examples of documentation that our firm uses when representing personal injury clients:

• The Police Report or Incident Report. If you are in a serious car accident, the police will most likely be called to the scene of the accident. Whether you believe the accident was your fault or not, the police are there to help and they often provide the best objective narrative of the facts. Although police reports generally are not entered into evidence before a jury in a civil case, all the parties involved in the accident can usually request a copy of the report and insurance companies certainly use it when valuing the case.  Incident Reports are also used for cases like slip-and-falls, where the property manager or store manager may write up a report according to their policy.  This is an important document because it records the present-sense impressions and memories of everyone involved, just like the police report.  
  

• Pictures and Recordings. One of the most helpful things that you can do is take pictures. The old adage that “a picture is worth a thousand words” holds true when insurance adjusters evaluate damages, when juries determine liability, and when you tell your story. Your attorney is rarely (if ever) going to be at the scene of the accident when it occurs. It is often up to you to document the accident as accurately and completely as possible. Pictures, videos, and audio recordings are an excellent and easy way to accomplish that. Be sure to document who took the pictures or recordings, and when they were taken. If necessary, these could become exhibits in front of a jury.  
  

• Statements from Witnesses. If other people witnessed your accident, make sure to get their names and ask if they would be willing to provide a statement of what they saw. Even if you have never met the person, they could end up testifying on your behalf, giving you a sworn affidavit, or, at the very least, providing a valuable statement to the police that they, in turn, put in their report.
  

• Before anyone leaves the scene of the accident, be sure to get the name of the other party’s insurance provider (and a picture of their insurance card, with their consent). The at-fault insurance provider will often turn into your most lucrative source of compensation and you often end up filing a claim with them soon after the accident. As a side note, always be careful what you tell any agent of any insurance company. While they do often hold the purse strings, they are not your friends or your representatives and they are paid not to give out money easily for claims. It is usually best to give them the facts, simply and shortly.
  

Collecting these types of documentation goes a long way in building your case and it is something often that you, and you alone, are best suited to do.  When our firm talks to clients who have done this work already and collected a robust record of documentation, we know they mean business and are ready to move their case forward.

These pieces of evidence will ultimately factor into proving the legal elements of liability, which is generally called “negligence.”  This is the idea that the responsible party had a duty towards you (the victim), breached that duty, and as a result caused you to suffer damages. There are thousands of variables in proving those pieces, but courts in Virginia usually consider whether the responsible party was using the same “degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another.” Griffin v. Shively, 227 Va. 317 (1984). If they did not, then they breached their duty. In some cases, the responsible party may have done more than just breached their duty to you. They may have utterly disregarded your safety—this is known as “gross negligence”—or they may even have willfully acted with conscious and reckless indifference to your safety—this is known as “willful and wanton conduct.”  These types of negligence are more serious and have higher punishments, but are also harder to prove.

Of course, you as the victim may have contributed some negligence to the accident. This is not as common, but for example, maybe you got rear-ended because it was night-time and your tail-lights were not working. Or maybe you slipped and fell at the grocery store because you were texting on your cell phone and were not paying attention to the orange safety cone next to the puddle of water. In Virginia, as a very general rule, if you contributed any negligence—even a very small bit—you lose your case. This is a very complicated area of law and there are exceptions, but it is a very important to remember that Virginia will not allow you to win your case just by saying that the responsible party was more negligent than you were. It is generally all or nothing. Keep this principle in mind when giving your statement to police officers, insurance agents, and other persons involved in the accident. If anybody has good reason to believe that you contributed to your injury, it could mean the end of your case (though always talk to an attorney first because the details matter!).

DAMAGES: How Much Money Should They Pay Me?

Once liability is proven (or admitted), you only get compensated for the damages you sustained.  At first glance this might seem unfair; after all, if the responsible party did something wrong, they should just pay.  But put yourself in the shoes of someone who caused an accident.  If you were them, you would most likely not want to pay for anything more than the actual damages the person sustained as a direct result of the accident. The same principle applies to you, the injured party, in proving your personal injury case.

Damages fall into several buckets. Not all the buckets are equal sizes; some are much deeper than others. Not all buckets are equally important to your case; some buckets are far more persuasive than others. And not all buckets are important at the same stage in your case; some buckets are more important to a jury, but less important to an insurance adjuster. Generally, the buckets of damages are in the following categories.   

Damages Bucket #1: Medical Bills.  This is a very important bucket, potentially a very big bucket, and a bucket that is important early in your case.  For each hospital visit and doctor’s visit that is made necessary by the accident, you are generally entitled to be paid by the responsible part for the full amount billed.  If you have health insurance, this full amount might be billed first to them.  You might only pay a co-pay and you might receive your health insurer’s “explanation of benefits” (or EOB), but your attorney will need to see the full amount billed from the doctor or hospital.  This is because, in Virginia, you are entitled to be paid for full amounts of medical bills that are authentic, that are reasonable and not excessive, that were medically necessary, and that were caused solely by the accident. The full and actual bills themselves, therefore, are critical to your case. To streamline your case and get to your compensation faster, make sure to keep track of all your medical providers,[1] so that your attorney can easily track your treatment and request the applicable billing and records.

As a very important side-note, if your health insurer paid for part of your full medical bills, you can imagine that they will want to be repaid from any money you get from the responsible party.  They often assert what is called a “lien” or a “right to subrogation.” The law is tricky and complicated in this area and you may need an attorney who can navigate this for you.  For example, not every health insurer has a legal right to a lien, but they will still ask you for one and make it seem like they do. To make it worse, the health insurers who do have a strong lien might not say anything until long after your case has settled, which can create legal nightmares years down the road. And of course, any lien can dramatically change the value of your case during the negotiations.  Always be sure to discuss your health insurer with any attorney who helps you with your injury case.    

Damages Bucket #2: Permanent Damages and Future Medical Bills.  This is another very important bucket and a potentially very big bucket, though it may not be apparent from the beginning of the case and may take time to develop and prove. If the responsible party caused you to suffer any kind of permanent injury, or any kind of injury that will require medically necessary and reasonably predictable future treatments (surgeries, physical therapy, etc.), the value of your case can skyrocket. These types of injuries are tragic and painful, but often very difficult to prove.  You can imagine that a lot of extra money comes into play if, for example, you have lost a limb, will need repeat surgeries, or will need to use a wheelchair for the rest of your life. Consequently, the responsible party and their insurance company will likely make you prove every dollar of those damages. This often involves medical experts and extensive testing and research. If your case involves issues like these, the best thing you can do early on is work with your treating doctors to document and predict these future costs and permanent damages as clearly as they can.

Damages Bucket #3: Lost Wages.  This is another important and large bucket. You are entitled to be paid for the time you missed working and making a living, to the extent it was caused by the responsible party. As best you can, keep a log of every hour you missed because of your personal injury, including time missed for doctor visits, hospital stays, or physical therapy sessions. One of the best ways to certify the time you missed due to your accident is by having your employer sign an affidavit which attests to the time you missed, based on their records. You can also prepare to prove your lost wages by keeping at least three months’ worth of paystubs from your employer from before the accident, to help determine your income level during the time of the accident and any financial loss incurred because of the accident. Another way to prove your income level is through a W-2 or 1099 form. For lost wages that are more drastic or permanent (like if you can never again work in the same job or field because of your injury), expert reports and testimony will be critical.

As another important side-note, the responsible party cannot avoid paying your lost wages just because you used paid-time-off for those hours, or maybe still got paid on a salary basis for those hours. In Virginia this is called the “Collateral Source Rule.” It generally means that a negligent person cannot avoid paying just because you, the victim, got compensation from a third party, like your employer. The responsible party must pay for the damages they caused. Of course, there are exceptions and nuances here too, but keep this general rule in mind when tracking and collecting your lost wages documents.

Damages Bucket #4: Pain and Suffering, and other Consequential Damages.  This is a smaller and less important bucket, in comparison to the others. This is unfortunately counter-intuitive; it probably makes more sense that the trauma, pain, and suffering you experienced during and after your accident should be worth a lot of money. The reality, however, is that this bucket means very little to most insurance adjusters, who are usually using computer programs to assign a dollar value to your injury based on hard costs. Pain and suffering, along with other consequential damages like a rental car or lost time at school or your inability to play sports for a season, are very difficult things to value, particularly early in the case. These elements usually carry more jury-appeal, and are significant in telling the story of how the accident dramatically changed your life in a court case. On the whole, however, you should not look to pain and suffering as your first and best bucket of damages.

Damages Bucket #5: Punitive Damages.  This is a rare bucket, and its size is generally limited by law. Punitive damages are almost exclusively for punishment. They are an opportunity for the court (or jury) to say to the responsible party, “your negligence was so bad, was so reckless, and so shocking to any reasonable person, that we want to punish you and send a message that we don’t allow this kind of ‘accident’ to happen.” This usually does not happen in most cases, even if the injuries are fairly catastrophic, because it requires the worst kind of negligence (e.g. drunk driving). This may also seem counter-intuitive, since you may feel that the responsible party deserves to be punished severely, but it is more often than note that this bucket remains empty in the majority of injury cases.

RESOLUTION: How to get paid?

After keeping months of records and documents, after proving liability and establishing your case for damages, you can begin to look for resolution. This is one of the last pieces to the personal injury puzzle. There are usually three routes to resolution: direct resolution via a demand letter, a settlement brokered between you (or your attorney) and the pertinent insurance companies, or a formal lawsuit.

A demand letter is usually the first move that gets the ball rolling. It usually goes to the responsible party or their insurance company and includes as much documentation establishing the liability and all the damages buckets. You can do this kind of letter yourself, but insurance agents are well-versed in dragging unrepresented parties around, delaying, and misdirecting. A demand letter sent by a law firm on official letterhead will, more often than not, reap a much bigger reward. Having an attorney send a demand letter on your behalf will not only ensure that you are getting the best legal writing and research, but also that you are getting the best results. Hiring an attorney shows you mean business. 

The vast majority of personal injury cases never see the inside of a courtroom and settle through mediation or arbitration. This is not a bad thing. Oftentimes, you do not need a Law and Order-esque closing argument to get you the compensation you deserve. All you need is a competent legal team representing your interests in negotiations with insurance companies. Although there are plenty of semi-formal means to negotiate your case with insurance companies (e.g. alternative dispute resolution, arbitration, or mediation), simply having your attorney negotiate with the right insurance adjusters can do the trick. It is important to note that settlements usually require the parties to reach a middle-ground. In doing so, the parties walk away with a happy-medium that gets the job done and eliminates the risk of an uncertain jury decision and the high costs associated with continued litigation.

If all else fails, a lawsuit may be needed.  Sometimes insurance companies still need to know you mean business and they may not be reasonable until they are involved in the court process. That said, however, litigation is a very costly and lengthy process. A case can take months or years from the day it is filed to be resolved; it can involve multiple insurance companies and liens from several health insurance companies; and it can turn on complex and nuanced legal issues that require lots of argument from both sides. The process of resolving your case can certainly end in a lawsuit, but it is not always the fastest or most efficient way to be made whole.

No matter what route you take towards resolution, always be sure to involve knowledgeable and competent legal counsel. All of these options have pitfalls and traps hidden along the way and insurance carriers and opposing attorneys will almost certainly know them better than you will.  Having knowledgeable legal counsel on your side is one of the best ways to keep your advantage.

CONCLUSION and Important Tips

Every case is unique and requires unique attention to its details. Your case is unlike any other case. You know this better than anyone and you need to be represented by an attorney who knows it too. Put effort into finding the right legal representation on your case; it will be well worth it.

In the meantime, keep several tips in mind:

• Cases take time to resolve.
• Follow your doctor’s orders and course of treatment. If you do not do so, your damages buckets will get smaller.
• Do not forget about them! They come in all shapes and sizes from all different areas.
• Medical Expense Benefits (or Personal Injury Protection). If you have this benefit from your own auto insurer, be sure to ask for it; it is extra money and often does not depend on who was or was not negligent.
• Statute of Limitations. Each state is different, but after a certain period of time passes (2 years in Virginia), you permanently lose the right to file a lawsuit for your accident. Act promptly.
• Obtain competent legal counsel. Often, you can handle the smaller cases (under $5000 recovery) yourself. Be careful not to undervalue your case (which the insurance companies may pressure you to do). Seek legal advice early, even if only to advise you on how to proceed on your own. However, if your case has larger damages and/or is complicated, get a competent attorney who you can trust involved as early as possible.

Simms Showers, LLP offers a FREE INITIAL CONSULT for most personal injury cases.  This means that you can afford to share your story with us, talk through your options, and start your journey towards resolution.  We will meet with you, hear your story, review your documents, talk about what attorney-client representation might look like and help you assess your case and recovery.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers, LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Daniel Hebda, Esq. at djh@simmsshowerslaw.com or Robert Showers for legal advice that will meet your specific needs.

[1] Here are some (non-exhaustive) examples of medical providers that offer services which may be recoverable in a personal injury action: ambulance services, emergency room, specialists, family practice/general care, surgeon, pharmacy, physical therapy, chiropractor, mental health specialists (psychologist, psychiatrist, counselor), etc.