Settlement Demand Containing Punitive Damage Claim



Nationwide Insurance
7545 Midlothian Turnpike
Richmond, VA 23225


My Client:
Your Insured:
Claim Number:
Date of Loss:
Dear Claims Adjuster:
I. Client Name

Enclosed please find the following exhibits submitted in support of this demand for client.

01Fairfax County Fire & Rescue$ 322.50
02INOVA Mount Vernon Hospital$ 1,161.55
03Parker's Lane Emergency Physicians$ 341.00
04Association of Alexandria Radiologists$ 132.00
05Kaiser Permanente$ 2,258.00
06aPrescription - Nabumetone$ 15.00
06bPrescription - Methocarbamol$ 15.00
06cPrescription - Hydrocodone$ 11.30

Total Medicals $ 4,256.35

Wage Loss : Attached are disability slips from Kaiser confirming that Client was disabled until June 30, 2008, a period of 9 days.

A. Inova Fair Oaks Hospital

Attached is a completed wage loss form documenting a loss of 5 days x 12 hrs x $18.39/hr..............................................................................................................$ 1,103.40

B. Future Care

Attached is a completed wage loss form documenting that she lost her assignment due to her injury. She was averaging 20 hrs/wk and earning $17.00/hr. Her wage loss for only two weeks is 40hrs x $17.00/hr.....................................................................$ 680.00

Total Wage Loss $ 1,703.40

(Practice Pointer: When possible, include photographs depicting significant

property damage. If nothing dramatic appears from the photographs, do not include them with the demand.)

Client was injured when your insured rear-ended her car which was stopped at red light n southbound Richmond Highway. Following the impact, Client sat in her car with her hands on her face and leaned on the steering wheel. Following the collision, she experienced neck pain. An ambulance was called which transported her to Fairfax Hospital. She was carried into the hospital on a stretcher and with a neck collar. At the emergency room she was treated for neck injury. Her pain was 8/10 as recorded by the nurse, and she was sent for an x-ray. While in the emergency room, she was given pain relief medication, and upon discharge she was given prescriptions for narcotic pain relievers.

Defendant was convicted of Driving While Intoxicated and had a Blood Alcohol Content of .33, which is more than 4 x the legal limit. This was his second conviction for DWI within 5 years. Driving while drunk with a BAC over .15 permits Client to recover punitive damages. I have set forth the statute below.

§ 8.01-44.5. Exemplary damages for persons injured by intoxicated drivers

In any action for personal injury or death arising from the operation of a motor

vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff 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.

A defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to or death of the plaintiff.

Client came under the care of her physicians and therapists at Kaiser. Her first visit to Kaiser was June 23, 2008 at which time she was in considerable pain and was diagnosed with muscle spasms in her neck and back. She was prescribed Relafen, Vicodin and Robaxin and sent for physical therapy. The records reflect 10 physical therapy visits to treat the neck and back pain. The first therapy visit was June 28, 2008 at which time client was experiencing neck and back pain, which affected her turning her head, sitting or lying down, and sleeping.

The severe pain continued, and Client returned to her physician on June 29, 2008. At that time she was also experiencing headache, and she was unable to work due to the level of pain. She was given two additional prescriptions for pain relief (Naproxen and Cyclobenzaprene).

She continued with her physical therapy and at her visit on July 15, 2008, the therapist recorded improved neck and back pain (decrease from 7/10 to 5/10). Her last therapy visit was 8/12/08 at which time she was discharged to continue with a home exercise program. Client visited her doctor on September 5., 2008. It was noted that her muscle spasms were gradually (albeit slowly) improving and there were days when the symptoms worsened. She was discharged with instructions to continue taking medication and apply heat.

Considering the nature and extent of injury, medical expense and wage loss and drunk driving by your insured, I will recommend a settlement of $ 65,000.00 .

Very truly yours,
Jeremy Flachs, Esq.

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