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Getting the Money You Deserve

Injured in an auto accident through no fault of your own? Want to know how to increase your chances of being fully compensated for your injuries? Here are some suggestions.

Establishing Liability
Before you can recover for any injuries it must be clear that the accident was the fault of the other driver (or, if you were a passenger in a car, your driver). Usually, this is not a major issue, but sometimes it may be. Virginia is one of a handful of states that continue to follow the old Common Law rule of contributory negligence; that means that if your conduct (no matter how trivial) was a contributing factor to your injury, you cannot recover at all.

For example, in a recent case an individual was seriously injured when the driver of the car traveling to her left suddenly changed lanes to make a right hand turn at an upcoming intersection. Her foot was mangled in the collision and she had medical bills in excess of $50,000 for surgeries, and would likely walk with a limp the rest of her life. While this appeared to be a simple case of determining how much she should receive because the other driver was primarily at fault, there was a dispute by the other driver as to how the accident occurred. He claimed he signaled the lane change, checked to make sure he had room to do it safely, and that she speeded up when he moved over.

At the scene, she could not recall exactly what happened, only that he “hit her while changing lanes.” The investigating police officer detected the odor of beer on her breath when he spoke with her at the scene, and blood tests at the hospital revealed that her BAC was above the legal limit of 0.08. She was charged with DUI, and later convicted based on the blood test results. Because violation of the DUI laws may have contributed to the accident (and her injuries) by preventing her from taking action to avoid the collision, her claim against the other driver was lost.

Establishing Your Damages
Once liability is set, and contributory negligence is not a factor, all the jury will have to do is decide on an amount that will compensate you for the damages the law permits you to recover. In general, those are:

1. the reasonable costs of your medical treatment, including the costs of prescription medicines and other ancillary medical expenses such as crutches, for example;
2. any wages you lost or may lose in the future because you were unable to work (this will include compensation for sick leave or vacation time you may have had to take while you were out of work, or to keep doctors’ appointments) or can no longer do your job; and
3. pain and suffering.

Proof of your damages is required. Your medical expenses can be shown by the records of the hospital and your doctor. Medicines and other related expenses can be proved by receipts, so they should all be saved for your attorney to use. Your employer can establish the number of days and hours you missed from work, and simple multiplication of those numbers by your hourly rate will establish the amount of your lost wage earnings.

Pain and suffering is compensable, but a jury will have a more difficult time in arriving at a number that will compensate you for this because there are no receipts or records of costs for them to see. Therefore, it is incumbent upon you to help the jury understand what you went through; and while your memory may be excellent, a skilled defense attorney will try to trip you up by questioning how you can recall how you felt on a particular day several months ago!

The surest way to give the jury no reason to doubt your recollection is to keep a daily personal diary of how you felt and what problems you encountered as a result of the accident. No great expense need be made to do this; just buy a spiral notebook like the ones you used in high school and write down how your day went, being sure to specify the date you are recording. In that way, you have made a record of what you experienced when you experienced it, and can use this to refresh your memory for the benefit of the jury.

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