There are many important variables and factors affecting the viability of personal injury claims and the value of such claims. It might be thought that the nature and extent of the physical injury (damages) will drive the recovery, but much more is involved. Personal injury cases are governed by the negligence laws of Virginia and the District of Columbia. Northern Virginia personal injury lawyer Jeremy Flachs can assist you if you have been injured or if a loved one has been killed as a result of a vehicle crash, slip and fall, premises injury, product failure or other negligent or careless conduct.
Insurance Company Defenses to Personal Injury ClaimsContributory negligence is a defense to claims for car and truck crashes, and most other personal injury claims. Virginia, the District of Columbia and Maryland are 3 of only 5 jurisdictions in the United States which still bar claims if the claimant (plaintiff) is contributorily negligent in any manner. Many states retain the concept of contributory negligence, but allow the defense only sparingly, such as only if there is a finding that the plaintiff was more than 50% at fault. In Virginia and the District of Columbia, the claim can be defeated or undermined by evidence that both parties did something wrong, and if so, regardless of who was most at fault, the plaintiff is barred from recovery. That said, there is law that the alleged contributory negligence must be a substantial and meaningful act contributing to the crash or incident. But if so, the contributory negligence is a complete bar to recovery. For example, if a drunk driver was unable to judge his speed and distance and collided with another vehicle, his contributory negligence will bar his personal injury claim even of the other driver was also at fault.
Personal injury claims can also be defeated by the defense of assumption of the risk, which is a strategy that a personal injury lawyer in Northern Virginia may need to confront. In a District of Columbia case, a person was trapped in an elevator between floors because of a malfunction caused by negligence of the elevator company. Another person went to get help and told the trapped individual to say put until help arrived. The trapped individual assessed the risk, and still attempted to try to climb out of the trapped elevator. While making the attempt to climb out of the elevator, the victim slipped and fell down the elevator shaft to her death. On appeal, the District of Columbia Court of Appeals held the victim's claim was barred due to her contributory negligence. The court noted that the facts of this case also opened the door to the defense of assumption of risk. The court stated that while assumption of risk rests upon the voluntary consent of the plaintiff to encounter the risk and take her chances, contributory negligence rests upon her failure to exercise the care of a reasonable person for her own protection. Where the plaintiff voluntarily consents to take an unreasonable chance, both defenses may prevail. Put in the simplest terms, the court held the plaintiff gambled with a known risk and lost.
Damages and CompensationMost people contact personal injury attorneys in Northern Virginia because they suffered physical and emotional injury, resulting in medical bills and lost wages. The degree of injury is also important to the success of the claim. The best example is medical malpractice. Because these claims can cost $100,000 or more, with an attorney fees of 40% of the recovery, the harm and injury must be substantial. Anything less than a catastrophic injury is likely to be deemed insufficient for a complex medical malpractice claim. It is true that the more obvious the negligence, such as leaving a sponge or pad inside the body after surgery, or operating on the wrong limb or body part, the less expensive the case would be to litigate. But such an obvious error is the exception rather than the rule. The same principles apply to product liability claims, where the cost of experts and litigation is very expensive. Therefore, most product liability claims require substantial injuries, such as permanent injury. For motor vehicle claims, the threshold is relaxed. But even motor vehicle injury claims are subject to screening, particularly those without police reports, without medical care close in time to the crash, and little claim of injury. The time and effort to prosecute any injury claim is substantial, and a busy Northern Virginia personal injury attorney cannot accept large numbers of small claims.
Insurance CoverageMany personal injury claims are limited by the amount of liability insurance coverage available to pay damages. For vehicle accidents, the amount of the victim's own uninsured and underinsurance coverage is relevant to the amount of compensation recoverable. Attorney Jeremy Flachs has represented victims of severe personal injury and wrongful death where the total amount of available insurance was $25,000. These are the minimum required insurance limits in Virginia and the District of Columbia. This is a grossly inadequate sum, but until the legislators increase those minimum limits, there will continue to be inadequate recoveries. When presenting an injury claim to the Law Offices of Jeremy Flachs, we investigate and review the amount of insurance coverage available to compensate you for medical bills, pain and suffering, mental anguish, physical injury, loss of income and loss of earnings. Unfortunately, unless your injury was caused by a very wealthy individual or business with assets, there is little chance of recovering a large verdict from the pocket of an uninsured or poorly insured defendant.