Negligence of the Other Driver:
In Virginia, in order to successfully make a claim for personal injuries sustained in an automobile accident, you must prove that the driver of the vehicle that hit you was “negligent.” “Negligent” simply means that the other driver acted unreasonably under the circumstances.
In relation to a motor vehicle crash, negligence can typically be shown by demonstrating that the other driver violated a traffic law or other well-accepted “rule of the road.” Running a stop sign or red light, changing lanes without using a signal, turning in front of oncoming traffic or speeding are all examples of negligent driving. Negligence does not mean that the other driver is a bad person or that he did something purposely to hurt you. (Those types of claims are the subject of another book I am writing.)
Assuming you can show that the other driver acted negligently, then the claims process looks at your driving behavior, i.e., did you do anything that contributed to the accident? If so, guess what? The claim is over. You are completely barred from recovering for your injuries.
This harsh rule is called contributory negligence and it means that if you are just 1% of the cause of the accident, then you get nothing! Virginia is one of only a few states that still use this extremely harsh rule, but if you are going to make an automobile accident personal injury claim, you had better get used to hearing this phrase. Insurance companies love to cite contributory negligence as a reason to deny claims and will use it at any and every opportunity.
Damages for Your Injuries:
Assuming that the other driver was negligent and you were not contributorily negligent, then the next part of the automobile accident personal injury claim is your “damages.” Of course, this begs the question, “what are damages?”
Under Virginia law you can generally claim the following types of “damages”:
-medical bills, both in the past and in the future (yes, you can claim these even if you have health insurance);
-lost wages, both in the past and in the future (yes, you also claim these even if you have sick leave at work);
-pain and suffering, both in the past and in the future (this is always the phrase you hear about on TV);
-inconvenience, both in the past and in the future;
-scarring or physical disfigurement/deformity;
-permanent injuries; and
-loss of earning capacity (for example, if you are unable to return to work as a crane operator and have to take a job as a cashier making less money than before the accident).
To be blunt, which is what this book is all about, the entire idea of “damages” is money. In order to receive compensation for your “damages,” the claims procedure provides you with money. The claims process does not make the other driver apologize to you, it does not take the other driver’s license nor does it force the other driver to go safe-driving school.
Because the automobile accident personal injury claim boils down to money, the insurance companies have developed a number of VERY EFFECTIVE strategies to avoid paying you. The level of the insurance companies’ success in this regard is quite evident when you look at their corporate income, assets and holdings1 . Insurance giants are worth billions and billions of dollars and they did not achieve this type of wealth by treating you fairly or voluntarily accepting responsibility for your “damages.”