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A Virginia appellate court recently issued an opinion addressing whether a plaintiff’s misidentification of a defendant was a “misnomer” or “misjoinder.” The case illustrates the importance of a thorough investigation when pursuing any type of Virginia personal injury claim.

According to the court’s opinion, the plaintiff was a passenger in a vehicle when it was hit by another car after sunset on Christmas Eve in 2016. The record indicates that the other driver ran a red light while making a left turn and hit the vehicle carrying the plaintiff. Approximately two years after the accident, the plaintiff filed a complaint against the other vehicle’s driver. The plaintiff alleged that the driver was negligent in several ways, including failing to keep a proper lookout, maintaining his vehicle, applying his brakes, and obeying traffic signals. The complaint focused on the negligent operation of the other vehicle, and no cause of action against the owner of the car that was carrying the plaintiff.

The plaintiff’s complaint identified the vehicle’s driver as the vehicle’s owner, when, in fact, the owner’s son was driving the car at the time of the accident. The plaintiff misidentified the driver because the police report reflected that the father was charged with violating traffic codes. The plaintiff amended the complaint to reflect the correct driver, after that driver’s insurer notified him of the misidentification. In response, the defendant filed a plea arguing that the new complaint was time-barred. The lower court ruled that the misidentification was a misjoinder, not a misnomer, therefore ruling that the statute of limitations barred the complaint.

Under Virginia law, individuals or their loved ones who suffer personal injuries due to a defective vehicle or component car part may hold the responsible party liable for their losses. Attorneys can assist these individuals in conducting an investigation to determine the liable parties and recover compensation. In some instances, manufacturers may issue a recall for safety-related defects. However, in many cases, a recall occurs only after several people have suffered injuries or died.

The most common vehicle defects that result in motor vehicle accidents and injuries include defective safety parts. For instance, malfunctioning airbags, defective tires and seat belts, malfunctioning brakes, and insufficient side impact protection. These defects may result in various types of injuries. Although some injuries like sprains and bruising may resolve themselves without significant medical intervention, others such as traumatic brain injuries, spinal cord damage, internal bleeding, and burns can cause life-threatening and long-lasting impacts on a victim.

For instance, Hyundai recently announced that the 200,000 vehicles they recalled should be parked outside, as the car leaks may result in an engine fire. The company received its first report of an engine fire in 2014; however, it did not begin an investigation until 2018. The company reported that there had been about 15 known reports of engine fires caused by fluid leaks. The company claims they are not aware of any injuries; however, after a further review, they determined the cars should not be parked inside a garage until the vehicle undergoes repairs. The recalls include over 200,000 Hyundai Santa Fe SUVs and approximately 440,000 Kia midsize sedans and SUVs.

Losing a loved one is always difficult. However, it can be even more difficult when the person who passes away is a child. In Virginia, when the death was unexpected and the result of another person’s negligence, the deceased person’s loved one can sue the responsible party by filing a Virginia wrongful death claim. While seeking compensation, the family may seek damages for their mental anguish stemming from the loss. While this cannot bring their child back, mental anguish damages are meant to help the family as they emotionally recuperate.

Recently, three children were killed in a car accident on Interstate 95. According to a recent news report, a car traveling southbound was hit in the rear by another car, causing the hit car to crash into the guardrail while the other driver lost control, and their car overturned. While the driver of the rear-ended car received non-life-threatening injuries, the three children in the car were killed instantly.

In situations like this horrific crash, a person can pursue a wrongful death claim if the negligent or reckless act of another caused the death of their loved one. Under Virginia Code section 8.01-52, when pursuing a wrongful death claim, a loved one can ask for compensation for sorrow and mental anguish, loss of income and services, expenses for the hospitalization of the decedent, funeral expenses, and punitive damages (if the defendant acted willfully).

After many Virginia car accidents, police and emergency responders arrive at the scene of the accident. Law enforcement typically responds in order to investigate whether anyone committed a criminal act that caused the accident and to gather information to prevent future incidents. In some cases, the police may arrest an individual or pursue criminal charges against one or more parties involved. An arrest or subsequent charges may impact an injury victim’s personal injury case.

Fundamentally, there are several differences between criminal charges and civil lawsuits. First, the burden of proof is different depending on the type of case. In a civil personal injury lawsuit, the plaintiff must establish that the other party was responsible for the plaintiff’s injuries by a preponderance of the evidence. This standard requires the plaintiff to prove that it is “more likely than not” that the other party caused their injuries. In contrast, the burden of proof in criminal cases is much more difficult and requires the state to prove that the defendant is guilty “beyond a reasonable doubt.” This crucial difference means that injury victims are more likely to succeed in a civil case than the state can on a criminal matter, because the burden is significantly lower.

Another key difference is that there are additional damages available to victims in civil cases compared to a criminal case. In some situations, a criminal conviction may allow a victim to recover compensation through a victim relief fund or restitution. However, civil injury plaintiffs might recover damages for losses that restitution or a relief fund does not cover. For instance, civil injury victims may be entitled to compensation for emotional distress, loss of companionship, and pain and suffering.

Every time we get into our cars and drive onto the road there are potential unknown dangers awaiting us. However, no one ever leaves their house for work in the morning expecting to be caught in a major car accident, much less one involving fatalities. When these tragic incidents occur, those who cause these accidents and the deaths resulting from them can be held accountable through a Virginia wrongful death lawsuit.

In a recent news report, a Virginia big-rig accident resulted in one fatality and significant traffic delays. Following a multi-vehicle crash on I-81 on a Friday afternoon, a box truck drove off the left side of the road before hitting a car and two tractor-trailers. One of the trucks proceeded to continue, driving off the left side of the road and into the median. Local authorities are still investigating the incident, and Virginia State Police Wytheville Division Crash Reconstruction and Motor Carrier Safety teams were on the scene retracing the steps of the fatal collision.

In Virginia, the law surrounding wrongful death lawsuits can be complicated. Not everyone can file a Virginia wrongful death claim, and the law is specific about who is eligible. According to state law, compensation for such claims can only be collected by surviving family members defined as “statutory beneficiaries.” The Code of Virginia meticulously highlights an order of priority concerning which relatives may file such claims on behalf of their loved ones who have passed.

Holidays are always a busy time for drivers on the road, but certain times of year are more dangerous than others. Drunk driving is America’s leading killer on the roads every year, but the summer months tend to bring more accidents, especially when it comes to Virginia drunk driving accidents. In the last year alone, there were seven fatalities in Virginia.

Based on a recent news report, July 4th is the deadliest holiday for drunk driving accidents, and Virginia is no exception. On average, there are 450 fatal accidents every year during the holiday across the country. Especially as coronavirus restrictions are being lifted all over the state, more people are out and about traveling over the weekend. The report notes that this holiday was particularly more prone to drunk driving accidents because people want to be outside and enjoy themselves, given that most people have been stuck at home. Often gatherings and events around the Fourth of July involve significant amounts of alcohol.

Local authorities are encouraging the community to have fun, but to plan ahead. Finding a friend or family member to be a designated driver or using a ride share service can save countless lives, as well as your own. Drivers are also advised to be vigilant for people driving erratically, moving in and out of lanes, or having slower than usual reaction times, which are key indications of a drunk driver.

Recently, the Virginia Supreme Court issued an opinion stemming from injuries a student suffered while riding a school bus. The plaintiff was a passenger on a school bus when a car slammed into the bus. The student’s family filed a lawsuit against the car’s driver, the bus driver, and the City of Richmond School Board (the City), seeking damages of $1.2 million for her injuries. The car driver had insurance coverage totaling $125,000. The City was self-insured through a risk pool managed by a third-party, VACORP. This third-party provides uninsured/underinsured motorist (UIM) coverage to anyone who suffers injuries while occupying a qualifying auto. The school bus, in this case, qualified under the contract.

The contract provided a $1 million limit for coverage relating to UIM claims. The agreement states that VACORP agrees to pay all sums the “covered person is legally entitled to recover”, from the owner or driver of the uninsured or underinsured vehicle. The plaintiff and VACORP disputed the available coverage to the City under the UIM provisions. As a result, the plaintiff filed a declaratory judgment, and the parties filed cross-motions for summary judgment. The defendant argued that Code § 22.1-190 and Code § 22.1-194 provides a cap of $50,000 on UIM coverage, negating any contractual agreements between the parties. The plaintiff contended that the statute set a minimum and not a cap. The trial court found in favor of the plaintiff, and the defendant appealed.

Under the relevant portion of § 22.1-190, school boards must certify that every school vehicle obtains a certificate of self-insurance of at least $50,000 for injury to one person. Additionally, the policy must provide coverage for losses caused by an uninsured or underinsured motorist. The statute does not have a provision that forbids a school board for obtaining a contract through a pool for more than $50,000. Therefore, the court concluded that Code § 22.1-190 does not act as a statutory cap.

Respondeat superior, which translates to “let the master answer,” is a legal theory that provides injury victims with a way to hold employers responsible for the negligent actions of its employee. Respondeat superior is a type of vicarious liability, and the theory stems from the idea that, in some instances, employers should bear the responsibility for their employee’s actions, even if the employer did not instruct the employee to act negligently. Employers in these cases do not have to do anything wrong to face liability; rather, liability attaches as a result of the employer/employee relationship. Virginia injury plaintiffs who wish to recover under a theory of respondeat superior or another vicarious liability theory should consult with an attorney to ensure they meet the requirements.

Courts have long reasoned that public policy dictates that employers must be responsible for their employees’ actions, because employees are acting to further an employer’s business interest. If employers can benefit from an employee’s good conduct, they should also assume the cost of the employee’s negligence. Further, employers tend to have more resources, so injury victims have a better chance of fully recovering from employers rather than their agents.

Injury victims can recover from businesses and employers if they meet three main conditions. First, they must prove that an employer/employee relationship exists. To meet this requirement, plaintiffs may be able to point to whether the employee is on regular payroll, what power the employer has over the employee, and the conditions of the employee’s employment. Next, the victim must be able to show that the employee was engaged in furthering the employer’s business at the time of the accident. Finally, plaintiffs must be able to prove that the negligent employee was within the scope of employment when the accident occurred. Courts have generally agreed that anything an employee did that furthered their employer’s interest was within the scope of employment.

Most Virginia residents trust their doctors, and for good reason. Doctors are highly-trained medical professionals and, generally, do a great job taking care of patients. However, doctors are still human and sometimes make mistakes or are careless, which can result in significant harm to patients. When these mistakes do happen, Virginia state law allows those who are injured to file a medical malpractice lawsuit against the responsible doctor. If successful, these suits can result in financial recovery for the victim to cover pain and suffering, lost wages, past and future medical expenses, and other losses they suffered.

The purpose of these lawsuits is generally not to punish the doctor but rather to help the victim recover. Because of this, punitive damages are rarely available. Punitive damages are additional monetary damages that may be awarded to the plaintiff that serve not to make the plaintiff whole and help them recover, but to punish and deter the doctor’s behavior. Because this is not the purpose of medical malpractice lawsuits, these damages are reserved for rare cases when the doctor’s conduct was extremely egregious and in disregard of the patient.

Recently, a Virginia court discussed punitive damages in a medical malpractice case. According to the court’s written opinion, the patient broke her ankle in March of 2011, and was treated by the defendant, a doctor. The patient required surgery, and after the surgery, the doctor prescribed her Percocet, a drug consisting of acetaminophen and oxycodone, a controlled narcotic substance. The patient had a history of bipolar disorder and alcohol use, so she was at an increased risk of developing an addiction to narcotic pain medication, but the doctor continued to prescribe her Percocet. He never attempted to treat her with non-narcotic pain medication.

Under Virginia Code § 46.2-1094, drivers, front-seat passengers, and any passengers under 18 years old, must wear a seat belt. Seat belts are a critical safety mechanism, and individuals who do not wear them properly are at a heightened risk for serious injury or death. According to the National Highway Traffic Safety Administration, most recent statistics suggest that almost 50% of people who die in a motor vehicle crash were not wearing seat belts. Despite these startling statistics, people still choose not to wear seat belts, and increase their risk of severe injuries in a Virginia car accident.

There are many instances where Virginia car accident victims fear that their failure to use a seat belt will affect their ability to recover financially, even when they are involved in an accident through no fault of their own. For example, insurance companies and their defense teams may try to limit their payouts by claiming that the injury victim was contributorily negligent for failing to wear a seat belt. However, although Virginia requires certain passengers to wear seat belts, the law does not allow evidence of non-use to be considered for evidence of negligence or a means to mitigate damages.

Thus, a defense attorney cannot refer to an injury victim’s seat belt use during a trial. Further, although defendants may introduce evidence that the plaintiff failed to mitigate her damages, they cannot argue that the plaintiff’s injuries would have been less severe if they were wearing a seat belt. The idea behind the statute is that, despite the plaintiff’s seat belt use, the injuries would not have occurred if the defendant was not driving negligently. Further, one of the essential purposes behind tort law is to deter the public from engaging in negligent behavior, and arguing about seat belt use shifts responsibility from the defendant to the plaintiff. Keeping in mind, however, that Virginia law does not allow seat belt use as evidence in a personal injury claim, the consequences of non-use can be disastrous.

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