Can I Use A Maryland Lawyer For An Accident That Happened In Virginia?

Can I use a Maryland lawyer for an accident that happened in Virginia?

Yes. If you live in Maryland but were in an accident while you were Virginia, The Law Office of Marc Atas and Associates will represent you for your personal injury, car accident, truck accident, automobile accident, and property damage claims. While we are only licensed to practice law in the State of Maryland, we can do the following legal activities on your behalf. The Law Office of Marc Atas and Associates can resolve your car damage claim, diminished value of car claim, make sure you receive timely medical treatment, aid the insurance company in accepting liability, take statements from witnesses, obtain police reports and finally attempt to settle your claim. If we are unable to settle your claim, we will locate counsel in the appropriate state to file suit and go to court on your behalf. The attorney fee arrangement will remain the same even if additional counsel is necessary and will not result in any additional fee. The personal injury, car accident, truck accident, and automobile accident laws in  Virginia are complicated. I have outlined the basic laws that apply when involved in personal injury, car accident, truck accident, or automobile accident in Virginia.

Virginia

  1. Limitations
  2. Generally

For causes of action alleging personal injury, the statute of limitations is 2 years. See, Va. Code § 8.01-243 (A). On property damage claims, the statute is 5 years. See, Va. Code § 8.01-243 (B). On oral or unwritten contracts the statute is 3 years (See, Va. Code § 8.01-246 (4), and on written contracts, the statute is 5 years. See, Va. Code § 8.01-246 (2). 2. Medical Malpractice

The statute of limitations for filing actions for medical malpractice is 2 years from the date the cause of action accrues. However, so as not to interfere with the patient-physician relationship, a cause of action accrues on the date of the last treatment. The statute provides one year from the date of discovery in cases of fraud, concealment, or intentional misrepresentation.

In the case of minors under the age of eight, the minor has until his or her 10th birthday to file suit. In the case of minors eight and older, suit must be filed within two years of the date that the act giving rise to the injury occurred. In foreign object cases, suit must be filed within one year from the date that the object was, or should have been, discovered. In no event may suit be filed more than 10 years (SOR) from the date that the object was actually inserted. For medical malpractice cases, limits on recovery apply.

  1. Wrongful Death

The statute of limitations for a wrongful death action is 2 years from the date of death. See, Va. Code § 8.01-244 (B). If the wrongful death occurred in another state, that state’s wrongful death act governs. If a specific statute of limitations is included in the foreign state’s act, that limitation period will apply in the Virginia proceeding.

  1. Fraud

The limitations period for an action for fraud in Virginia is 2 years from the date of the fraud or misrepresentation. See, Va. Code § 8.01-243 (A). A cause of action for fraud accrues when such fraud is discovered or should have been discovered by the exercise of due diligence. § 8.01-249 (1).

  1. Tolling the Statute of Limitations

The running of the limitations period for any given action may be tolled, or suspended, in certain special circumstances. These include claims where: the claimant is a minor; the claimant is incapacitated during the limitations period; the claimant is incarcerated; or the death of either the claimant or the defendant. See, Va. Code § 8.01-229.

Intentional Torts

year for libel, slander and defamation.

Fraud

2 Years from the accrual of the cause of action. Right to recover for fraud or mistake is deemed to accrue when such fraud or mistake is or should have been discovered.

Municipal Liability/Sovereign Immunity

Cities and towns can be sued but require the filing of a notice of claim within 6 months of the occurrence giving rise to the action. The notice requirement is tolled for incapacities until the plaintiff is able to give notice. For claims against a city or town in Virginia, your notice must be sent within six months of the date of the accident. If the claim is against the Virginia state government or transportation district, your notice must be sent within one year of the accident.

Discovery Rule

See specific rules with respect to foreign objects (medical malpractice), fraud (generally and in medical malpractice), and computer crime. Otherwise standard rule applies in Virginia.

Contributory negligence applies. Unfortunately, this means that even if you only have a small percentage of fault, such as 10%, or even just 1%, you will not be able to recover anything at all from other at-fault parties

Comparative Negligence

Rule does not apply except in certain railroad crossing cases.

Charitable Immunity

Exists, except modified in cases of hospitals.

Disabilities

Statute runs after disability (infancy, insanity) ends. Except in malpractice which is 2 years of accrual of action unless minor under 8 years old, in which case action must be brought by 10th birthday. SOL tolled by absence or concealment of defendant and prevents SOL from running as long as defendant’s absence or concealment continues.

In Virginia, there are no caps on most standard personal injury cases, meaning that the amount of economic and non-economic damages you can receive is not limited under state law, in most instances.

There are two key exceptions. First, damages in medical malpractice cases are capped at $2 million in Virginia. And second, punitive damages, are capped at $350,000. (Note: Punitive damages do not come into play in most injury cases because they require proof of serious recklessness or malicious conduct far exceeding ordinary negligence.

Punitive Damages

Rule: Allowed. Caps: $350,000

No-Fault Insurance

None.  No Personal Injury Protection Coverage in Virginia In Virginia, there is no PIP (personal injury protection) coverage as there is in other jurisdictions. However, Virginia has a similar type of coverage for the payment of

medical expenses incurred by the occupants of a vehicle, commonly referred to as MEDPAY. This is elective coverage that pays regardless of fault. It is not uncommon for an injured party to have his or her health insurance pay the medical bills when they are incurred, and then obtain payment from both their own Medical Payments policy and the liability policy of the tortfeasor, effectively netting a triple-recovery. Generally, none of these policies are entitled to recover from the other or from the injured person for the multiple payments. An insurer paying MEDPAY has no right of subrogation and no claim against any other person or insurer to recover any benefits pay by reason of the alleged fault of such other person in causing or contributing to the accident.

Other Relevant Information

5 years for Loss of Services of Infant and Action for Cost of Curing Infant of
Injuries Caused by Defendant.

5 years for Action for Personal Injuries or Wrongful Death Arising from Improvement to Real Estate.

Injuries Resulting from Violation of Virginia Computer Crime Act: The earlier of 5 years from last act or 2 years from when last act discovered or should have been discovered.

5 years for damages for asbestos-related death.

There is no specific statute in Virginia governing personal injury liability for dog bites. Owners will be held liable for injuries caused by their dog (or other animal) if the injured party can show that the owner “should have known” the animal was dangerous. This is known as the “one bite” rule.

  1. General District Court

The General District Court has exclusive jurisdiction over amounts in controversy of $4,499 or less. For amounts between $4,500 and $25,000, the General District Court has concurrent jurisdiction with the Circuit Court. These courts are often mistakenly called small claims court (see below). In the General District Court, jury trials are not available, there is no formal discovery, and the parties to a case have the right to appeal the judge’s ruling for a trial de novo in the Circuit Court. The maximum possible verdict in General District Court is $25,000.

  1. Small Claims Court

Small Claims Court has concurrent jurisdiction with the General District Court for claims not exceeding $2,000. However, not every jurisdiction has a small claims court. Each small claims court has its own local rules of procedure which govern practice in that court. Generally speaking, parties may not be represented by counsel in small claims courts in Virginia.

  1. Circuit Court

The Circuit Court is Virginia’s initial “court of record.” Original jurisdiction lies in Circuit Court for a civil action in which the amount in controversy exceeds $25,000. Jury trials are available only in the Circuit Court, a jury will consist of seven (7) jurors. Many Circuit Courts have their own sets of local rules governing practice and procedure in that Court.

  1. Reputation of Jurisdictions in Virginia

In general, Virginia juries and judges have a reputation for rather conservative verdicts and damage awards. There are some exceptions, including the Circuit Courts for the City of Richmond, the City of Portsmouth, City of Newport News, Roanoke, Petersburg, and Norfolk where relatively pro-plaintiff juries can be expected. The generally conservative bent of jury pools, coupled with that of the judges and the framework of the legal system in the Commonwealth, leads to a generally favorable prospect for a fair and reasonable result from most jury trials.

  1. Imputed Liability
  2. Employer

An employer may be held responsible for the torts of his/her employee under three distinct theories: respondeat superior, negligent hiring and retention, and negligent entrustment.

  1. Respondeat Superior

Under this doctrine, an employer may be held vicariously liable for tortious acts proximately caused by an employee, as long as those acts are within the scope of employment. In order to prevail under this theory of recovery, a plaintiff must prove (1) a master and servant relationship between employer and employee; (2) that the employee was in the process of his employer’s business at the time of the tort; and (3) that the employee was in the scope of his employment at the time of the tort. The scope of the employment is defined as “incidental” to an employer’s business and done “in furtherance of” the employer’s business. An employee who deviates far from his duties has taken himself out of the scope of the employment. However, an employee’s willful or malicious act may still be within the scope of employment.

  1. Negligent Hiring and Retention

In order to establish a claim for negligent hiring or retention, a plaintiff must prove that the employer of the individual who committed the allegedly tortious act negligently placed an unfit person in an employment situation involving unreasonable risks of harm to others. Virginia has also recognized negligent retention of an independent contractor.

  1. Negligent Entrustment

An employer who allows an employee to use a vehicle or other property when the employer knows or has reason to know that because of the employee’s youth, inexperience, physical or mental disability, or otherwise, the employee may use the vehicle or property in a manner involving unreasonable risk of physical harm to himself and others, is subject to liability.

  1. Subcontractors

Employers, generally, are not liable for the acts of independent contractor. However, there are limits on this immunity. For instance, where one engages an independent contractor to do work that is inherently dangerous, work which is likely to cause injury to person or property, the employer may be subject to liability if the contractor fails to use due care. See, Ritter Corp. v. Rose, 200 Va. 736, 107 S.E.2d 479 (1959). Likewise, if the work to be performed constitutes a nuisance, the employer cannot avoid liability simply because it engaged an independent contractor to perform the work. See, Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E.2d 347 (1966); Norfolk & W. Ry. v. Johnson, 207 Va. 980, 154 S.E.2d 134(1967).

  1. Passengers

There is no unauthorized passenger defense in Virginia. The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. A guest has a right to maintain an action for damages against an owner or operator of an automobile in which he is riding. See, Va. Code § 8.01-63.

  1. Parental Liability for Torts of Children

Generally, a parent is not liable for the malicious, intentional acts of his/her minor, unemancipated child based upon their own independent negligence in failing to control the child. See, Bell v. Hudgins, 232 Va. 491, 352 S.E.2d 332 (1987). There is a statutory exception to this, providing parental liability for damage to public or private property caused by a minor child for damages up to a limit of $2,500.00. See, Va. Code § 8.01-43; 44.

Another key exception to this general rule is if a person gives or furnishes a motor vehicle to a minor who is too young to obtain a driver’s license, such person shall be jointly and severally liable with the minor for any damages that may be caused by the minor’s operation of that motor vehicle. See, Va. Code § 8.01-64.

  1. Family Purpose Doctrine

The family purpose doctrine is not applied in Virginia. The head of a family who maintains a car for general family use is not liable for the negligence of family members using the car. However, liability may be imposed upon the head of a family for negligently entrusting the family vehicle to another member of the family. This would not apply to parents who sell or give an automobile to an adult child and who lack the power to control the child or the automobile.

  1. Dram Shop

A vendor of alcoholic beverages is not liable for injuries sustained by a third party that result from the intoxication of the vendor’s patron. See Williamson v Old Brogue, Inc., 232 Va. 350, 350 S.E2d 621 (1986). The basis of the rule is that individuals, drunk or sober, are responsible for their own torts and that, apart from statute, drinking the intoxicant, not furnishing it, is the proximate cause of the injury. The Alcoholic Beverage Control Act makes it a misdemeanor to sell alcoholic beverages to an intoxicated person but this does not mean that the statute creates a cause of action in favor of the plaintiff imposing civil liability on a seller of intoxicants licensed under the Act.

  1. Wrongful Death

A wrongful death action is brought by certain relatives or beneficiaries of a decedent and seeks recovery for their loss as a result of the death of the decedent. The focus on this type of action is not on the damages incurred by the decedent, but on the loss incurred by the plaintiff or plaintiffs.

  1. Plaintiffs and Beneficiaries

The Wrongful Death Statute specifies that any action brought under it should be brought by and in the name of the personal representative of the decedent. See, Va. Code § 8.01-50. The Act also sets forth four distinct classes of beneficiaries who may be entitled to recover damages for a wrongful death, and addresses the distribution of the recovery among the beneficiaries. The jury may apportion the damages to the beneficiaries, and if it does not, then the Court must do so when it enters Judgment on the verdict. See, Va. Code § 8.01-54.

The first class of plaintiffs include the surviving spouse, children of the deceased (minor or adult) or the children of the decedent’s deceased children. If there are no beneficiaries who fit in the first class, then the second class includes parents, brother and sisters of the decedent and any other relative primarily dependent on the decedent for support or services and is a member of the same household. If the decedent leaves behind a surviving spouse and parents, but no children or grandchildren, then the third class of beneficiaries includes both the surviving spouse and the parent(s). If there are no survivors under the foregoing classes, then the fourth class includes certain other relatives of the decedent. See, Va. Code § 8.01-53.

  1. Defenses Any defense which would have barred suit or recovery by the deceased also bars recovery by a wrongful death plaintiff, e.g., assumption of the risk or contributory negligence by the decedent.
  2. Statute of Limitations

A wrongful death action must be filed within two years from the date of death. See, Va. Code § 8.01-244.

  1. Damages

Damages may include both pecuniary damages which are designed to compensate for the loss of economic benefits and non-economic (solatium damages). The Virginia’s Wrongful Death Act specifically outlines five categories/descriptions of allowable damages. See, Va. Code § 8.01-52. The categories are as follows:

  1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
  2. Compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent;
  3. Expenses for the care, treatment, hospitalization of the decedent incident to the injury resulting in death;
  4. Reasonable funeral expenses; and
  5. Punitive damages for willful or wanton conduct or such recklessness as evinces a conscious disregard for the safety of others.
  6. Compromise
  7. Prior to the Commencement of the Wrongful Death Action

No wrongful death action may be maintained where the decedent, after injury, entered into a compromise of claims and accepted satisfaction. See, Va. Code § 8.01-51.

  1. Compromises of Wrongful Death Action Must Be Court Approved

Any settlement of a wrongful death claim must be approved by a Circuit Court in Virginia. If the claim is settled without pending litigation, any interested party (the personal representative of the decedent, any potential defendant, or any interested insurance company) may petition the Court for approval of the settlement. See, Va. Code § 8.01-55.

  1. Survival Actions

Any claim recognized by Virginia law can survive the death of either the person entitled to assert such claim, or the person against whom such claim would be asserted. In the event that a person asserts a personal injury claim and then dies while such claim is pending, the claim should be amended to be a wrongful death claim. See, Va. Code § 8.01-25. In a survival action, damages are measured in terms of the harm to the victim; in a wrongful death action, damages are measured in terms of the harm to others from the loss of the victim. Damages recovered become assets of the estate. Any defense which would have barred suit or recovery by the deceased also bars recovery by survival action. In the event the party liable for the injury dies, punitive damages shall not be awarded.

  1. Loss of Consortium

Loss of consortium means loss of society, affection, assistance, conjugal fellowship and loss or impairment of sexual relations. Virginia does not recognize claims for loss of consortium, and plaintiffs may not seek recovery for the same.

  1. Strict Liability

Strict liability is not generally recognized in Virginia, except for “intrinsically dangerous and ultra hazardous activities” (such as blasting). See, Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605 (1992); M.W. Worley Construction Co. v. Hungerford, Inc., 211 Va. 377, 210 S.E.2d 161 (1971).

  1. Non-permissive Use

An owner of a motor vehicle is not liable for damages caused by another person using such vehicle, provided that the owner did not give permission for such use. See, Va. Code § 8.01-65.

  1. Plaintiff’s Failure to Mitigate His or Her Damages

If a plaintiff brings an action for damages, some of which could have been avoided if the plaintiff had taken reasonable measures to avoid the same, then the plaintiff shall not recover for such damages. See, Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948).

VII. VIRGINIA’S NON-SUIT STATUTE

Virginia has a unique statue, called the non-suit statute, Defense counsel sometimes call this the “do-over” statute. A plaintiff has an automatic, one-time, right to voluntarily dismiss his action and automatically re-file it within six months or within the remainder of the statutory period, whichever is longer. This means that any time, up until a verdict is returned, or a judge renders his decision, a plaintiff may elect to non-suit his case, and he has an automatic right to re-file it. This allows plaintiff’s to cure what could be a fatal defect. See, Va. Code § 8.01-380.

VIII. DAMAGES

  1. Legal Measure of Damages
  2. Compensatory Damages
  3. Generally

Compensatory damages are allowed for injuries actually received. Damages must be established with reasonable certainty. Damages in a personal injury action can include:

  1. any bodily injuries he sustained and their effect on his health according to their degree and probable duration;
  2. any physical pain [ and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future];
  3. any disfigurement or deformity and any associated humiliation or embarrassment;
  4. any inconvenience caused in the past [and any that probably will be caused in the future];
  5. any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];
  6. any earnings he lost because he was unable to work at his calling;
  7. any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future;
  8. any property damage he sustained.
  9. Future Losses

Damages for future losses may be recovered, but those losses must be proven by the plaintiff with particularity. These can include future lost wages or income, lost business opportunities, future medical treatment, and future pain and suffering. If such losses, or the amount of damage to be suffered therefrom, require any speculation, no recovery will be allowed. Future economic damages are well-suited for expert testimony, as they must be determined with certainty and then discounted to present-day value for purposes of calculating the award to be fixed. It is the defendant’s burden to present evidence on reduction to present value.

  1. Property Damage

Generally, the measure of recovery for damage to property is the fair market value of the property. Where that property was damaged, but not destroyed, the proper measure of damages is the difference in fair market value of the property immediately before and immediately after the incident. This is known as the diminution of value, and is often awarded in addition to the cost of repairing the damage.

By statute, in the event of a motor vehicle accident, a plaintiff is also entitled to recover reasonable costs actually incurred for the hiring of a comparable substitute vehicle for a reasonable amount of time. Further, any carrier which refuses to provide a rental vehicle without a good faith basis for doing so is subject to a penalty of $500 or double the actual rental costs, whichever amount is greater. See, Va. Code § 8.01-66.

  1. Mitigation of Damages

A plaintiff has a duty to mitigate their damages.

  1. Punitive Damages

Punitive damages must be specifically requested by a Plaintiff and they are capped at $350,000. See, Va Code § 8.01-38.1. That is, the total punitive award against all defendants shall not exceed $350,000. An award of treble damages is not subject to the same limitation.

Punitive damages, also known as exemplary damages, are available for willful, wanton and malicious conduct or conduct so reckless as to evince a conscious disregard for others’ rights. See, Bowers v. Westvaco Corp., 244 Va. 139, 419 S.E.2d 66` (1992). The purpose of punitive damages is to punish the wrongdoer and warn others. Accordingly, punitive damages may not be awarded against a defendant who is merely vicariously liable for the acts of another, unless they authorized or ratified the conduct of the wrongdoer. See, Freeman v. Sproles, 204 Va. 353, 131 S.E.2d 410 (1963).

Evidence of a party’s net worth is admissible because it is material to this purpose and is relevant to a determination of the size of the award and whether it is so large as to be destructive.

The Virginia Code specifies that it is not against public policy to obtain insurance coverage for punitive damages that may be awarded for injury or death caused by negligence, including willful and wanton conduct. See, Va. Code § 38.2-227. This excludes, however, coverage for punitive damages awarded as a result of intentional acts.

For cases involving a drunk driver, the driver’s conduct will 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, or the defendant unreasonably refused to submit to a blood alcohol test; (ii) at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle, engine or train; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff. See, Va. Code § 8.01-44.5.

  1. Attorney’s Fees
  2. Generally

Generally, attorney’s fees are not recoverable against another party unless they are permitted by contract or statute. In tort litigation, each party is required to pay their own attorney’s fees regardless of the result of the litigation. Caution should be taken however with certain actions maintained under federal and state laws pertaining to discrimination as those particular statutes may have provisions which permit plaintiffs to seek attorney’s fees.

  1. Actions Against Insurers

When the insured must resort to litigation to enforce a liability carrier’s contractual duty to provide coverage for his/her potential liability to third persons, the insured is entitled to recovery of attorney’s fees and expenses incurred in that litigation provided that the court finds that the insurer did not act in good faith in its denial or coverage or refusal to make payment. See, Va. Code § 38.2-209.

  1. Limitation on Damages

Virginia does not have a general cap on damages like some other states, including Maryland. The only caps on damages in Virginia are the cap on Medical Malpractice judgments (and the cap on punitive damages discussed elsewhere herein.

  1. INSURANCE COVERAGE IN VIRGINIA
  2. Automobile Liability Limits

Liability insurance is “required” in Virginia. Proof of insurance coverage is required before one can register a motor vehicle. Alternatively, a person can certify to the D.M.V. that they do not have liability insurance, and will be required to pay to the D.M.V. a fee of $500. This fee does not create or purchase any insurance coverage for the individual or their motor vehicles, but merely allows the registration of the motor vehicle without insurance coverage. Operating an uninsured motor vehicle without payment of this $500 fee is a class 3 misdemeanor. See, Va. Code 46.2-707.

By statute, any insurance policy, issued to a resident of Virginia or issued in Virginia, providing insurance coverage for liability arising from the use of an automobile shall provide coverage for at least $25,000 to any single plaintiff for personal injury, $50,000 total coverage for any single incident, and coverage for property damage in the amount of $20,000. See, Va. Code 46.2-472.

  1. No Personal Injury Protection Coverage in Virginia

In Virginia, there is no PIP (personal injury protection) coverage as there is in other jurisdictions. However, Virginia has a similar type of coverage for the payment of

medical expenses incurred by the occupants of a vehicle, commonly referred to as MEDPAY. This is elective coverage that pays regardless of fault. It is not uncommon for an injured party to have his or her health insurance pay the medical bills when they are incurred, and then obtain payment from both their own Medical Payments policy and the liability policy of the tortfeasor, effectively netting a triple-recovery. Generally, none of these policies are entitled to recover from the other or from the injured person for the multiple payments.

  1. Uninsured / Underinsured Motorist Coverage

Any policy for automobile coverage must include coverage for damages caused to the insured by uninsured motorists in at least statutory minimum liability limits (25K/50K/20K). See, Va. Code § 38.2-2206. A vehicle is underinsured if its liability coverage is less than the insurance coverage maintained by any person injured as a result of the operation of the vehicle. In some circumstances, the underinsured motorist coverage of several policies can be stacked together to afford greater relief to qualified injured persons.

Any action filed by an injured plaintiff who intends to seek recovery of any Uninsured or Underinsured motorist coverage he or she may have must serve the lawsuit on his or her insurance carrier in addition to any other defendants. See, Va. Code 38.2-2206 (F).

  1. Bad Faith

Virginia Code § 38.2-209 allows an insured to recover costs and reasonable attorneys’ fees in a declaratory judgment action brought by the insured against the insurer, if the trial court determines that the insurer was not acting in good faith when it denied coverage or refused payment under the policy. There can also be a bad faith claim when the carrier unjustifiably refuses to settle a claim within policy limits.

  1. Punitive Damages

The Virginia Code specifies that it is not against public policy to obtain insurance coverage for punitive damages that may be awarded for injury or death caused by negligence, including willful and wanton conduct. See, Va. Code § 38.2-227. This excludes, however, coverage for punitive damages awarded as a result of intentional acts.

  1. Subrogation

Generally, an insurer is subrogated to claims of its insured against another once the insurer has indemnified the loss of the insured. An insurer paying MEDPAY has no right of subrogation and no claim against any other person or insurer to recover any benefits pay by reason of the alleged fault of such other person in causing or contributing to the accident.

The insurer had the right to file suit for its subrogated interest in its own name or in the name of its insured.

  1. MISCELLANEOUS ISSUES
  2. Collateral Source Rule

In a tort action, there is no set-off for monies obtained through collateral sources such as health insurance, medical payment coverage, workers’ compensation payments or co-defendant settlements. See, Va. Code § 8.01-35; § 38.2-2211 (dealing with automobile medical payment insurance policies). Further, the fact that any such payments were received by the plaintiff may not be admitted into evidence.

Payments received from the defendant, or the defendant’s agents, are generally not considered to be collateral, and therefore may be applied to reduce the liability of a defendant to a claimant.

  1. Joint and Several Liability

In Virginia, joint and several liability is imposed on joint tortfeasors. All defendants are jointly and severally responsible for the entire judgment. See, Freeman v. Sproles, 204 Va. 353, 131 S.E.2d 410 (1963); See also, Va. Code §8.01-443.

  1. Workers’ Compensation Lien

The workers’ compensation carrier has a statutory lien against any recovery made by the injured worker against a third party. If the worker settles a third party claim without notification or approval of the employer and/or workers’ compensation insurer, the injured worker forfeits his right to additional workers’ compensation benefits.

  1. Offer of Judgment

Offers of Judgment are not recognized in Virginia.

  1. Seat Belt Statute

The Virginia Code provides that failure to use seat belts does not establish negligence per se, and that evidence of non-use of seatbelts shall not be considered in mitigation of damages nor is that fact admissible. See, Va. Code § 46.2-1094. This is despite the fact that front seat passengers over the age of 16 are required by law to wear seatbelts, and that violation of a statute is ordinarily considered negligence per se in Virginia.

  1. Releases

Unless the document specifically provides for release of all tortfeasors, a release discharges the obligations of only the party to the release. However, any claim against joint tortfeasors is reduced by the amount of the release. The released party shall not owe, and may not seek, contribution to or from any other tortfeasor or defendant whose liability is not extinguished in the release. See, Va. Code § 8.01-35.1.

 

 



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