Recently in Automobile Accidents Category

1. Liability - Many Virginia auto accident cases involve a dispute over who is at fault. In a simple rear end collision, liability is often accepted when the claim is filed. If the accident involves a lane change, sudden stop, multiple impacts or two different accounts of the accident with no police report or witness, the automobile insurance company often denies liability(almost always if the carrier is Geico or MAIF). These claims end up in court where an experienced personal injury attorney has the burden to prove, by a preponderance of the evidence, that the other driver was at fault. The term preponderance of the evidence means more likely than not. In other words, the fate of your accident recovery often depends on the experience of the trial lawyer you retained. A "Trial Lawyer" is someone you need to hire when you first call an attorney, not just a Virginia accident lawyer. Portner & Shure's attorneys are trial attorneys and our website reflects many of the injury awards we have received in court, not just by settling.
2. Contributory Negligence - Virginia's contributory negligence doctrine is cut throat and can be a complete bar to an injured victim's recovery. Virginia personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages. 
3. Low Property Damage - Some Virginia automobile accident claims, where liability is not disputed, don't settle. One of the main reasons these cases fail to settle is because insurance adjusters refuse to offer fair settlements in accidents where the property damage to the injured victim's vehicle amounts to less than $1,000. Insurance companies often argue, in these cases, that the medical treatment received by the injured party was not warranted considering the low impact and that the injuries suffered could not have resulted from a minor accident. The adjusters' low impact argument often fails in court. There are several arguments that can be made on behalf of a plaintiff by an experienced Virginia accident lawyer. First, large accidents with significant property damage can result in little or no injuries to those involved, while minor accidents often result in serious injuries. Second, especially in rear end collisions, the injured victim does not have a chance to brace for impact. Third, sometimes the types of vehicles involved can explain the extent of the property damage. Forth, the evaluation of the accident victim's injuries and treatment is done by medical professionals who, absent evidence to the contrary, give medical treatment that is fair and reasonable and medically necessary. In almost every district court in Virginia, Portner & Shure trial attorneys have prevailed in low impact accidents.
4. Preexisting Injury or Underlying Condition - In many Virginia personal injury cases, the injured victim may have a preexisting injury or underlying condition. In these personal injury cases, insurance companies' attorneys will argue that the individual was already injured, experiencing symptoms before the accident and that the injury was not caused by the accident. When a plaintiff has a preexisting injury, an experienced Virginia accident attorney can use medical records to show that the plaintiff was fully recovered from the accident and released from treatment. Further, the personal injury attorney can argue that the plaintiff was asymptomatic before the current accident or that the preexisting injury was made worse by the accident. If the injured accident victim has a preexisting injury, such as a degenerative back condition, the fact that the condition was exacerbated or that there was a predisposition for an injury could explain why the accident resulted in significant injury. This argument is based off of the "Egg Shell Theory" which dictates that the condition of the victim prior to the accident does not mitigate the liability of the negligent party for the injuries resulting from the accident. In other words, "you take the victim as you find them".
5. (a) Causally Related - Sometimes insurance companies and there lawyers will argue that the injuries are not causally related to the accident, and that there is no reasonable connection between the accident and the alleged injuries. For example, if an individual is involved in an automobile accident and claims that, as a result, he or she had an appendix removed there is a strong argument against that claim. However, if a person is involved in an accident, which leads to a panic attack and an overnight stay in a hospital, there is a strong argument to be made that the condition was caused or exacerbated because of another person's negligence. Again, the Virginia personal injury attorneys have to prove by, a preponderance of the evidence, that the injury was caused by the accident, which means that the injury was more likely than not caused by the accident.
(b) Medically Necessary - This defense is often used when an injury victim pursues alternative healthcare such as acupuncture, acupressure and aquatic therapy. Insurance companies and there attorneys argue that this treatment is not legitimate. At trial, defense attorneys will often make a pretrial objection to any type of acupuncture treatment. The Virginia attorneys at Portner & Shure represent many Chinese, Korean and Vietnamese accident victims. Our Virginia accident attorneys defeat the objections of defense attorneys. Acupuncture is an ancient form of medicine and to argue that an injury victim does not have an option to be treated by an acupuncturists is rarely successful at trial. In Virginia accident cases that involve more serious injuries, defense attorneys often argue that invasive procedures such as surgery and epidural steroid injections are not medically necessary. This argument is easily overcome by the expert testimony of a treating physician.
6. Assumption of the Risk - The concept of "assumption of the risk" is fairly basic. For example, bee keepers assume the risk of being stung and rock climbers assume the risk of falling to their death. Simply put, a person who engages in risky activities cannot complain when the result is injury or death. The legal concept of "assumption of the risk" is based on the same principle, but does require a more detailed explanation. In Virginia, a person assumes the risk if that individual voluntarily engages a particular action or inaction known to that person to be inherently dangerous. If that particular action or inaction leads to an accident which results in injury, there can be no claim of negligence. For example, if a person is having a particularly good time and decides to dance on top of the bar, that individual cannot claim negligence if he or she slips on a spilled drink and falls. Assumption of the risk is a favorite argument of defense lawyers in Virginia, however, it is seldom applicable in auto accident, malpractice and product liability cases. The assumption of the risk defense is often utilized successfully in Virginia slip and fall cases.
7. Subsequent Accident or Injury - If an accident victim is involved in a subsequent accident the insurance companies and their attorneys can argue that the subsequent accident superceded the prior accident. An experienced Virginia personal injury lawyer can overcome this defense by examining the medical records. If the plaintiff's complaints were resolved before the subsequent accident then the defense is without merit. In cases where the subsequent accident was minor and there was little to no treatment, the personal injury attorney can argue that the subsequent accident was merely a blip on the radar and did not impact the more serious injuries resulting from the prior accident.
8. Gaps in Treatment - Too often Virginia accident victims wait several days before they are seen by a doctor, physical therapist or chiropractor. The longer the gap between the accident and the initial medical evaluation and treatment the stronger the argument that the accident victim did not require treatment. Defense attorneys like to argue that because an accident victim didn't immediately go to the hospital or doctor that the plaintiff's complaints lose credibility. Experienced Virginia personal injury attorneys should know that, in many cases, symptoms such as pain and stiffness do not manifest until a few days after the accident. Once an initial evaluation is done, gaps between treatment can be damaging to a personal injury claim. Most treatment plans follow a schedule prescribed by a medical professional designed to reach optimal recovery. Deviation from the treatment plan should be avoided. A defense attorney, who is presented with gaps ranging from a week to a month between treatment dates, has a very strong argument against the plaintiff's claims.
9. Fair and Reasonable - This is a term based off of community standards. This argument is often used when an injury victim double treats with two chiropractors and neither of the chiropractors knows. Defense attorneys will argue that an injury victim over treated and that the length of treatment was too long. In some cases, an injury victim may get MRI's of parts of the body that weren't injured in the accident. Sometimes healthcare providers over charge or over treat. When this unfair practice occurs the healthcare provider actually comes under attack and those bills may be nullified by the court's determination. The basic rule to follow in order to avoid this defense is to treat until your injuries are resolved.
10. Poor Witness - The insurance company will often contend the accident case is worthless because the plaintiff does not present well, or is a poor witness. In these instances the carrier must be pressed to give the exact reason for this contention. Often adequate trial preparation can overcome this issue. Further, the issue may be raised due to prejudice or language barriers. Some adjusters hear a foreign accent, whether Spanish, Chinese, Korean or Vietnamese, and immediately offer less. At Portner & Shure we have experience in Virginia courts litigating cases including Spanish, Korean, Chinese and Vietnamese speaking accident victims. Our Verdicts have never suffered because one of our plaintiffs is non-English speaking.

Hiring the best Maryland or Virginia automobile accident attorney does not mean you no longer have any responsibility for your accident claim. In fact, at Portner & Shure we ask all of our Howard County accident clients to do these ten things in each claim. In our experience, the client who works closely with our office helps ensure a good medical result and greater recovery. Below is a list of what you should expect to be your responsibilities:

1. During the first two days after your Maryland or Virginia automobile accident if you are hurt you must seek medical attention. All insurance companies value claims based on what the medical documentation reveals. An indication that a person was truly hurt in a Maryland or Virginia automobile accident comes from medical documentation close in time to the accident.

Hundreds of lives could be saved in both Maryland, D.C., and Virginia, over the next five years if the legislature passed more phased-in driving privileges for teens. Across the nation, and in the Maryland and Virginia area, motor-vehicle crashes are the leading cause of death for teens. In fact, per each mile driven, drivers ages 16-19 are four times more likely to be involved in an automobile accident.

The Virginia State Highway Safety office has complied some interesting accident statistics. They include:

• (rush hours, no surprise) There were nearly 7,000 car accidents that happened in the 4:00 p.m. to 5:59 p.m. time period

• Most fatal car accidents happened after rush hour and it was dark, between 9:00 p.m. and 9:59 p.m.

• The highest percentage of injury crashes took place between 5:00 p.m. and 5:59 p.m.

• Safest time and lowest number of injury collisions occurred between 4:00 p.m. and 4:59 p.m..

Most fatal accidents occur after rush hour when it gets dark, while the most accidents occur during rush hour. In the Virginia area, therefore, if you can avoid driving, or reduce your driving at rush hour times, statistically you reduce your chances of being in an accident.

When an automobile accident, truck accident or doctor's negligence results in a fatality there are two separate claims that can be made on behalf of the victim's family and estate. A Virginia wrongful death attorney can bring a wrongful death action. This type of claim is brought by the immediate relatives of the victim. In a wrongful death claim the family seeks to recover for their losses resulting from the accidental death of a loved one. A Virginia personal injury lawyer can bring what is called a survival action on behalf of the victim's estate. A survival action claims damages for the injuries suffered by the decedent including the pain and suffering and other damages and actual expenses incurred by the victim up until the time of death. In Virginia, one must choose between a survival action and a wrongful death action. Virginia does not allow both claims to be pursued.

Virginia is one of five states that uses contributory negligence instead of comparative negligence. The majority of states use the doctrine of comparative negligence which means, when both the victim and the defendant contributed to an accident by failing to exercise a reasonable degree of care and caution, each party's degree of liability is apportioned. The total amount that an accident victim is awarded is lessened in direct relation to his or her own negligence. For instance, if a jury found that an accident victim was entitled to $1,000,000.00 in damages but found that the victim was 20% at fault, the jury award would be $800,000.00.

Virginia''s contributory negligence doctrine is more cut throat and can be a complete bar to an injured victim's recovery. Virginia personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages.

In today's world, with so many people living throughout the United States with varying degrees of immigration status, the question is constantly asked: what rights does a person without legal status have. Despite the hundreds of thousands of laws, and cases that fill the legal libraries, this question still has no clear and definite answer.

In a Virginia or Maryland personal injury action, many victims are unable to work for extended periods of time. In some serious cases, a Plaintiff may never work again. If an injured person is still young, the future lost wage claim can amount to hundreds of thousands, if not millions of dollars. The question is, if that person is not a citizen, and has no legal status in this Country, can they make a claim for the past and future lost wages. The answer may depend on what state the claim is brought in and what the political orientation of the state is.

For instance, in Virginia, if a person without legal status is injured on the job, while they can have their medical bills paid for, they cannot claim their lost wages. The Virginia legislature has decided that if a person shouldn't have been able to work because of their immigration status, then to pay them for missing that work would not make sense. On the other hand, in Maryland, the legislature has made the opposite conclusion. The Workers Compensation law in Maryland allows a person without legal status, that has been injured on the job, to make a claim for the wages that they have lost as a result of their injury. Perhaps the reason for the differences is that Virginia is typically more conservative a state than Maryland, both socially and politically.

In some cases, however, there is no answer as the issue is one that the courts and the legislature have failed to address. While the Supreme Court of the United States has considered some specific issues involving the rights of illegal immigrants, they have not decided whether a victim in a personal injury lawsuit that has no legal status is allowed to claim past and future lost earnings. This issue is still left up to the individual states. While some states like Texas have specifically allowed future wages to be awarded, other states have flat out denied that right, or have chosen to require the victim to show what the lost wages would be in the country that they maintain citizenship. In the mid Atlantic region, this issue has not yet been resolved.

If the courts follow the analysis that has been used in the realm of Workers Compensation, it seems likely that while Virginia may disallow such claims, Maryland will permit them. This knowledge could make a difference in an attorney's decision of where to file a personal injury lawsuit, or the manner that the lawsuit is prosecuted and defended. Portner and Shure deals with complex issues like these on a regular basis. Our injury practice does not just involve "cookie cutter" claims and lawsuits. We are prepared to take on the tough issues, and make the arguments that give our clients the best chance for the greatest success.

If you or a family member has been injured or killed in an automobile accident, truck, bus or motorcycle accident, and would like a free legal consultation or if you would like more information on car accidents please feel free to contact our office or visit us on the web at www.portnerandshureaccidentlawyers.com.

A common misconception of plaintiffs in a personal injury action is that a claim can be made for punitive damages as a result of the car accident. The thought that a defendant driver can be punished for causing the accident is generally mistaken. In fact, in Maryland and Virginia, a defendant could be driving: using his cell phone, eating a Whopper with both hands, and reading a magazine, when he speeds into a school zone and strikes a school bus, and still not be responsible for punitive damages.

In almost all car accident cases, Maryland and Virginia follow the rule that in order to get punitive or exemplary damages, a defendant must intentionally cause an accident. It is not sufficient that the defendant be criminally negligent. There is, however, one significant exception. Unlike the Maryland courts, the Virginia laws make an exception for drunk drivers. While the common law is clouded as to the availability of punitive damages, the statutory law is not.

Gary Anthony Thorne was traveling northbound on Lee Highway, shortly after 4:00 p.m., Friday, May 21st ,when his SUV crossed over a median strip and six traffic lanes onto a bicycle path striking and killing a young teen, Abdel Ouahid Chadli.  The driver, Mr. Thorne who was to turn 32 the next day, also died at the scene, in Fairfax County, Virginia.

Mourning replaced the graduation celebration for Abdel Ouahid Chadli, a senior and wrestler at Fairfax High School.  The young man was the eldest of four boys who was a dedicated athlete and liked to work out at the gym and biked on the bike path for exercise on a regular basis.  Chadli had been accepted at George Mason University and had hoped to become a veterinarian.

A single vehicle accident claims the life of a 16 year old teenager after leaving the prom at King George High School.  At approximately 1:09 a.m. on Sunday, May 9, 2010, five teenagers were on their way to an after prom party when the driver of the vehicle ran off the right side of the roadway and struck a utility pole. The vehicle then overturned several times, ejecting three of the passengers and driver who were not wearing their seat belts. The accident occurred on Route 218 at the intersection of Caledon Road and Basil Road, in King George, Virginia.

Two of the teenagers were flown by helicopter to Mary Washington Hospital and the other three were transported by ambulance, all with serious injuries.  One teenager, 16 year old, Anthony L. Feather, a member of the King George High School football team,  later died at the hospital due to his injuries.  

A spokesperson for the Virginia State Police say speed is considered a factor in this crash, which still remains under investigation.

Some states accept the "safety belt defense".  Simply stated this means that if you were involved in a car accident, even if it was not your fault, and you were not wearing your seat belt and your injury was made worse as a result of not wearing the seat belt, the amount of damages you can collect may be reduced.  Many states restrict the number of persons who can drive as passengers with a new driver.  Statistics show that new drivers are more easily distracted.  Further, curfew driving restrictions are often placed on new drivers.  All of the above need to be explored in this case.  

If you, a family member or someone you know has been involved in a car accident or you need more information regarding an automobile accident, please contact the Virginia accident lawyers at Portner & Shure for a free consultation.