Frequently Asked Questions
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Who should be named as a defendant in my car wreck case?If you or a loved one is seriously injured in a car wreck, it is important to identify whom the at-fault party is, especially when you plan to file a lawsuit. This may seem like a simple issue, but it can be complicated. Why? Because there is an important distinction between who is the named defendant, and who actually pays out, in many car accident cases.In most car accident cases, insurance companies are involved. Despite their involvement, the insurance company is usually not the named defendant. The person, or persons, who caused the wreck, and your injuries, will still be the named defendant.The person filing the lawsuit must first determine who was negligent in causing the wreck. The negligent party is the defendant and the person filing the suit is the plaintiff (i.e. you or your loved one).If the accident was a “hit and run” or you do not have the identity of the person who hit you, a case can be filed against “John Doe” as opposed to filing against the insurance company.
How are Virginia wrongful death claims handled in court?
In Virginia, there are some clear procedures set forth in our state’s laws concerning civil claims for damage related to the death of a person due to someone else’s negligence. These cases are known as wrongful death cases and can be confusing for those unfamiliar with their mechanics. To learn more about the details of filing a Virginia wrongful death claim, keep reading.
In Virginia, who are the beneficiaries in a wrongful death case?
§ 8.01-53. Class and beneficiaries
A. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased or (ii) if there be none such, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.2-200. Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.
Virginia’s wrongful death statute makes clear that there are several categories of beneficiaries who can recover damages for a wrongful death. These include surviving spouses, children, grandchildren, parents, siblings and finally, other, more distantly related relatives. The law says that the jury can choose to apportion the damages to the beneficiaries, or if it does not, then the Court must do so when it enters a final judgment.
What wrongful death case damages can be recovered?
§ 8.01-52. Amount of damages.
The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:
1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and
5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
The Virginia statute governing wrongful death lawsuits establishes a method for how damages are calculated. According to the law, the judge or jury can award damages that it decides are fair and just. Examples of these damages include money for mental anguish, loss of companionship, loss of income, medical expenses, funeral expenses and, in some cases, even punitive damages meant to send an especially strong message to the responsible party.
What is the Virginia statute of limitations for wrongful death actions?
In Section 8.01-244(B) of Virginia Code it says that the statute of limitations for wrongful death actions is two years from the date of the person’s death. This means that if you fail to file your case within this time period, the responsible party will unfortunately be able to avoid financial liability for their actions.
This normal two-year rule does not apply in cases where the party is a minor. In Virginia, the statute of limitations is “tolled,” meaning it stops running, until the person turns 18 at which point the clock begins ticking. That means for minors, the statute of limitations does not actually expire until he or she turns 20.
These rules are again shifted in medical malpractice cases, which have their own unique time limits. The law says that for adults, any legal action against a health care provider must be filed within two years of the date that the act giving rise to the injury occurred. However, any suit based on the discovery of a foreign object must be filed within one year from the date that object was or should have been discovered, and cannot be filed in any case more than 10 years from the date the foreign object was inserted. For minors under eight-years-old, the law says the statute of limitations expires on their 10th birthday. For those minors eight-years-old and older, they have two years from the date of the act that gave rise to the injury to file suit.
For more information about wrongful death claims in Virginia, consider reading through the following articles written by my firm’s experienced wrongful death attorneys:
- How long do I have to file a lawsuit for a wrongful death claim against the driver who caused the wreck?
- What damages may I claim in a wrongful death case?
- My wife was severely injured in a Virginia (VA) car wreck caused by a drunk driver, and she died from injury-related complications more than a year after the accident occurred. Can I still bring a wrongful death suit against the drunk driver?
What is the burden of proof for a plaintiff in a personal injury case?A lot of people have heard "beyond a reasonable doubt" when it comes to jury trials. Well, that is the burden of proof in a criminal case. A personal injury case is a civil case. In the civil realm, the plaintiff carries the burden of proving by the greater weight of the evidence that the defendant was negligent and that the defendant’s negligence caused the accident and the injuries to the plaintiff. This is typically referred to as the "preponderance of the evidence." Basically, it means 50.01%.
What is the role of the jury in a trial?In a typical personal injury case, a jury is tasked with deciding whether the defendant was negligent, whether the defendant's negligence caused the plaintiff's injury or injuries, and the amount of damages.As part of this process, juries judge the facts. They determine the credibility of the witnesses and the weight of the evidence. After the jury is presented with all of the evidence, they adjourn to a jury room where they discuss, amongst themselves, what the outcome of the case will be.
Who pays for out-of-pocket expenses while my case is pending?
Out-of-pocket expenses are your responsibility. Attorneys are prohibited from paying for certain client expenses such as utility bills, rent or mortgage, and other non-case-related expenses. If you have absolutely no money, there are companies that offer loans to individuals who have cases pending in litigation, but we do not encourage our clients to take out these loans.
In the unusual event a claim results in no recovery whatsoever, it is still your responsibility to repay the money advanced by the firm that it advanced toward your claim. This is required under Rule 1.8 of the Virginia Rules of Professional Conduct (all lawyers must follow these rules).
An insurance adjuster offered to settle and they said that I do not need an attorney. What should I do?
Talk to a lawyer. It won't cost you anything to speak to an attorney about your case and what the adjuster is offering as a settlement. You may discover that the adjuster is trying to get you to agree to a lowball offer. Remember, the adjuster works for the insurance company; they are not on your side.
Do I really need to hire a lawyer to settle my case?
It depends on the facts of your potential case. To be honest, some people may not need a lawyer. If you or your loved one was hurt, but the injury wasn't catastrophic, you're able to return to work and there's no permanent affect from the accident, then you could probably deal with the insurance adjuster on your own. Our firm focuses on catastrophic, life-altering physical injuries where someone likely suffered extensive damages. This is because an insurance adjuster is more likely to drag their feet and attempt to minimize the exposure of the insurance company to a large claim. This is the situation where an experienced North Carolina personal injury attorney is most useful to you and your loved ones.
How much does it cost to talk to an attorney at your firm?
Absolutely nothing. You do not need to pay a big retainer or an hourly fee to speak with one of our attorneys about your potential case. Our firm provides no-cost, confidential consultations. Another distinguishing aspect to our consultations is that you'll speak to an actual lawyer. At some firms, you'll only get to talk to a Legal Assistant and never actually communicate with a lawyer. Our firm does it different. When you call our office or fill out a quick contact form, an actual attorney will respond within hours.
Can an individual with a traumatic brain injury be required to undergo an examination by an employer to whom they are applying for a job?
Not until the individual has been offered employment. Once a job has been offered, an individual may be required to undergo a medical examination if it is job related and relates to the activities of the business.
Are people with traumatic brain injuries required to disclose their disabilities to employers to whom they are applying for a job or with whom they have a job?
Employees only need to disclose a disability if they need an accommodation to perform an essential function of their job. Applicants don’t have to disclose a disability on an application or in an interview unless they need accommodation to assist them in the application or the interview.