Frequently Asked Questions About Personal Injury Claims
If you’ve been hurt in a car accident or otherwise suffered an injury because of another party’s negligence, you likely have a lot of questions on your mind regarding how to hold that party accountable for the damage they’ve inflicted on you. How long do you have to file a claim? What if the other party says you were partly to blame? Below we’ve provided answers to these questions and others, courtesy of our experienced and successful Richmond personal injury lawyer Ryan Wind. If you have other questions about a potential claim, or if you’ve been hurt in an accident and need to talk to a lawyer, call Wind Law, LLC for a free consultation with our dedicated and knowledgeable Richmond personal injury attorney.
Q. How long do I have to file a personal injury claim?
A. The general rule is that you have two years from the date of the accident to file a lawsuit in court, but some exceptions could make the time limit longer or shorter, so be sure to get in touch with an attorney as soon as you can after the incident. While it might not be necessary to file a lawsuit in your case, missing the applicable deadline (known as the statute of limitations) can keep you from recovering any compensation through a court judgment or jury verdict, no matter how strong and meritorious your claim is otherwise.
Q. The insurance company says I was partly to blame for the accident. How will this impact my claim?
A. Virginia is one of only four states in the country to adhere to the rule of “pure contributory negligence.” Because of this, if you are considered to be in any way partly at fault, then the other party doesn’t owe you any compensation, even if they were 90 or 99% to blame. It’s crucial, therefore, to have an experienced and successful personal injury attorney on your side who knows the law and knows how to build a strong case proving the other party’s fault while fighting back against unfounded claims that your own negligence contributed to the accident. If the insurance company wrongfully denies your claim, we’ll take them to court and prove your case to a jury for the compensation you need and deserve.
Q. What if I wasn’t wearing my seat belt when I got hit by a negligent driver? Does that count as “contributory negligence”?
A. No. Virginia law is clear that failure to wear a seat belt “shall not constitute negligence.” The fact that you were not wearing a seat belt cannot be used as evidence against you in a lawsuit for damages from a negligent driver. We want to stress that seat belts save lives and are required by law, but you shouldn’t let your failure to wear a seat belt keep you from contacting a lawyer if you are hurt in a crash caused by a drunk, distracted, or negligent driver.
Q. What are “punitive damages”?
A. Punitive damages are a special category of damages in a personal injury or wrongful death case that are intended to punish the defendant for especially egregious conduct. In contrast, “compensatory damages” are meant to compensate the injured victim (the plaintiff) for the harm they suffered, such as their medical bills, lost income, and pain and suffering. Compensatory damages are always recoverable against a negligent defendant, but punitive damages are only available “if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” This is a high standard, and it can be difficult to prove that the circumstances merit a punitive damages award. At Wind Law, LLC, we always take the time and put in the extra effort to go after punitive damages in appropriate situations where justice would be met by an award of punitive damages.
Note that Virginia law caps the amount of a punitive damage award at $350,000, even if the jury awarded more.
Q. Can I get punitive damages against a drunk driver?
A. Yes. Virginia’s punitive damages statute explicitly states that punitive damages are appropriate against a drunk driver if it can be proven the driver had a blood alcohol concentration of .15% or more (or they refused to submit to a test of their blood alcohol when required), provided they knew or should have known their ability to drive would be impaired or was impaired, and their intoxication was a proximate cause of the injury or death.
Q. Can I sue the bar that overserved the drunk driver who hit me?
A. No. The majority of states have “dram shop laws” that allow an injury victim to sue a bar, restaurant or nightclub if they continued to serve an obviously intoxicated person or served a minor who went on to cause a drunk driving car accident. Most states also have “social host liability” laws that hold a party host liable for doing the same thing – overserving guests or serving underage guests who then go on to cause an accident due to their intoxication.
Virginia, however, is one of the few states that does not have any dram shop liability or social host liability laws. While it is illegal for a host to furnish alcohol to a minor, the law only imposes criminal and not civil liability for breaking the law. Courts in Virginia that have been asked to impose civil liability have declined, holding that it is the individual’s consumption of alcohol that is the proximate (legal) cause of the accident and not the act of furnishing the alcohol to the person who voluntarily consumed it.
Q. How do I know how much my claim is worth?
A. Every case is unique. The value of your claim depends on the damages you suffered, including your compensatory damages and whether punitive damages are appropriate. In determining your compensatory damages, we look at all the economic costs of the injury, such as your past and future medical expenses, lost income due to missing work to recover from your injury, or if your injury caused you to be disabled from working in the future. We’ll also look at the “non-economic” costs of your injury, such as your pain and suffering, emotional distress, mental anguish, scarring, disfigurement, loss of quality of life, etc. Non-economic damages are generally calculated as a multiple of the economic damages and are typically anywhere from 1.5 to 5 times the economic damages. Either we’ll settle your case for an appropriate amount you are satisfied with, or we’ll take your case to trial to prove the value of your claim to a jury and let them return an appropriate verdict in your favor.