Archive for the ‘Car Accident’ Category

In this follow up to last weeks post about Uninsured and Underinsured Motorist Coverage for auto accidents, I  will address additional options under related to UM/UIM coverage as well as provide you with points every driver should know.

Uninsured Motorist Property Damage (UMPD)

As a cheaper option than collision coverage, UMPD can be an economical way to protect your car from uninsured drivers.  Generally, this is appropriate for those considered to be careful drivers who don’t have collision coverage.  It is important to note however, UMPD often does not apply to hit-and-run accidents because it is cheaper than collision coverage.

Uninsured Motorist Bodily Injury (UMBI)

This type of coverage would generally protect you in accidents such as involving getting hit by a car while crossing the street.  Under such circumstances, this coverage could compensate you for your medical expenses and lost wages.  In some situations, it is superior to medical payments coverage and health insurance, because those won’t compensate you for lost wages.  There are other lost wages and disability insurance options that many employers offer; however, such coverage would not cover other passengers or family members and may be revoked if you switch jobs.

Things Every Driver Should Know…

In West Virginia, every driver is required to have Unsinsured Motorist Coverage.  Underinsured Motorist Coverage is not requited, but your auto insurance provider must offer you the option to purchase it.  If the insurance company does not offer you this coverage and you are in an accident, your insurance provider may still be responsible for covering you.  If you’re injured in a car accident by another driver who is underinsured and your insurance company informs you that you don’t have underinsured coverage and you don’t recall being offered such coverage, contact West Virginia Personal Injury lawyer Brooks West or another experienced attorney to discuss your options.

Below is a helpful wikihow article that describes strategies to help avoid a car accident and what to do in the event that a car accident is unavoidable.  The article also provides other miscellaneous safety tips including issues to consider when purchasing an automobile.

A car accident is one of the most dangerous things the average person will come in contact with during his or her life. This guide is posted in the hope that it will help its readers avoid injury or death. It should be noted that every vehicle is different, and much of the information here (such as airbags) will not apply to those who drive vehicles from 1990 or earlier. The methods of avoiding an accident, and the position one should be in during a crash, however, are effectively universal.

Steps

Be prepared

1. Wear your seat belt. Wearing your seatbelt is one of the most important things you can do to survive a car crash. Make sure that your lap belt sits low on your hip bones and that the shoulder belt goes across the center of your chest. Children should be seated in proper child restraints until they are large enough to properly wear a lap and shoulder belt.
2. Drive a safe car which is fitted with seat belts and other safety features. Do not sit in a seat which has no head support. Older cars, which may just have lap belts and almost never have any additional safety features, are generally less safe than large vehicles. SUVs tend to be more prone to rollover accidents than cars. Try to drive the safest car that suits your needs and budget. The Insurance Institute for highway safety maintains extensive crash test ratings and lists of safe vehicles of different sizes and styles.[1]
3. Store objects such that they will not hit you if the car gets hit. If an object could become a projectile during a crash, either remove it from the car, or stow it in the trunk, or, in the case of a minivan, in the well behind the seat.
4. Make sure the safety systems on your car are serviced regularly. Airbags and seat-belts significantly reduce injury and death in automobile accidents.
5. Make sure your car’s engine, brakes, transmissions, suspension and tires are in good condition. The safest accident is the one you don’t get in; having your car in top running condition can help you avoid an accident or minimize harm in case you get in an accident.

Use good driving practices

1. Obey traffic laws and be conscious of current conditions. Adjust your driving if in heavy traffic or inclement weather. Sixty mph may be safe when it’s dry, but if a sudden rain falls, wetting the roadway and raising oil off the ground, it will probably be safer to drive at a lower speed.
2. Focus on what you are doing. While driving, avoid using cell phones, reading maps, eating and other distracting activities. If you are a passenger, sit up straight with your seat-belt fastened. Don’t lean your seat too far back, don’t put your feet up on the dashboard, and definitely do not distract the driver. Do not place objects on top of the air bag enclosure.
3. Anticipate potential problems. Observe the road looking for things that could end up causing an accident.[2]
   • Look ahead for cars or pedestrians that may move into your car’s path.
   • Keeping a safe distance behind other vehicles (following the “two second rule” ) can help you have enough time to react when a vehicle in front of you makes an unexpected move.
   • Stay away from distracted drivers (e.g., the guy on his way to work using an electric razor), tailgaters and other drivers engaging in risky behaviors.
   • Keep an eye on parked cars. They may pull out in front of you; people may exit from them or move from between them without much warning.

Avoid or minimize an accident

1. Stay calm. If an accident appears imminent, you need to respond quickly but smoothly. Vehicles of all types respond better to smooth steering and braking inputs.
2. Choose your course of action. You need to decide what combination of steering, braking and accelerating will best serve to avoid or minimize the harm from an accident.
3. Brake with control. Braking practices vary depending upon whether your vehicle has antilock brakes.
   • No antilock brakes – If your car lack antilock brakes, you need to pump the brakes to keep the car under control. If you slam on the brakes, your car will start to skid and you will lose control. You cannot steer a vehicle when the brakes are locked. Press firmly, then release. If you feel the tires start to skid release the brakes before steering.
   • Antilock brakes – Do not pump antilock brakes. Your car’s ABS computer will pulse them much faster than you can (you will feel the pedal vibrate a bit when this occurs). Just hold the brakes firmly and steer normally.
4. Steer smoothly. – Very jerky motions of the steering wheel, especially with heavy vehicles or those with light rear ends (e.g., pickup trucks) are likely to lead to skids.
5. Accelerate if needed. Although it seems counterintuitive, sometimes the best way to avoid an accident is to speed up and get out of the way.
6. Take steps to recover if you start to skid or lose control. If your car starts to skid or if a tire blows, follow these steps to control the car.[2]
   • Don’t hit the brakes. This will only make things worse.
   • Keep a firm grip on the wheel.
   • Steer in the direction of the skid. If the back of your car is sliding to the driver’s left, turn the wheels to the left.
   • Wait for your tires to regain traction before braking or pressing the accelerator.
7. If a crash is unavoidable, try to minimize damage.
   • Avoid head-on collisions into other vehicles or front-end collisions into immovable objects like large trees or concrete barriers.
   • Do as much as you can to control your car’s speed. The faster the impact, the more damage it will cause.
   • Avoid side impacts. Serious injury is likely to result if another car strikes your car on the side where it is much weaker structurally.
8. Call emergency services after a crash. Apply first aid if needed. Do not attempt to removed injured people from a vehicle. Explosions are very unlikely, and you could aggravate any neck spinal injuries, even if the victim feels uninjured.

Tips

• Be sure to exchange information with others involved in the accident and get information from eyewitnesses.
• If you are purchasing a new vehicle, be sure to note the standard and optional safety features, such as where and how many air bags come with the car. Research crash test results, and consider built-in monitoring services such as General Motors’ OnStar system. These can notify emergency personnel of an accident.

Warnings

• Do not bend over or cover your head. In the event of a roll over, any force significant enough to warp in the roof and bend or break the A-beams might hit your head, and possibly knock you unconscious. It is unlikely to do nearly as much damage as that caused to your neck from having your head in front of the air bags when they deploy.

Sources and Citations

1. ↑ http://www.iihs.org/ratings/default.aspx
2. ↑ 2.0 2.1 http://www.berkshire.net/traffic.safety/accident.htm

Another tip I’d like to add is that if you’re involved in a car accident, it’s usually best to contact a personal injury lawyer as soon as possible so that they or one of their investigators can investigate and photograph the accident scene while there still may evidence present at the scene.  An effective car accident attorney will also want to interview eyewitnesses as soon as possible because memories fade and people move.  Please comment below if you have any other tips or suggestions that may help others avoid or survive a car accident.

Numerous studies show cell phones are a leading cause of car accidents. One such study estimated that drivers talking on cell phones are four times more likely to be in a car wreck. According to a Harvard University study, cell phones cause over 200 deaths and half a million injuries each year.

Many states have enacted laws limiting or prohibiting cell phone use while driving.  For example, some states require that a hands-free device be used while driving.  However, West Virginia does not have any state-wide cell phone laws.  In fact, it’s perfectly legal in West Virginia to drive while text messaging or even emailing on a Blackberry or iPhone.  That’s  pretty scary considering many of us have problems sending an email from the comfort of our home or office.

Despite the fact that West Virginia has no state-wide cell phone laws, there can still be serious legal consequences for driving in West Virginia while talking on a cell phone.  For example, if you’re involved in a car accident and one of the drivers was talking on a cell phone, you may be able to present evidence of that fact to the jury.  Evidence of that the driver was using a cell phone while driving may help prove the driver’s negligence and win your case.

Cell Phone Records

The issue then becomes how to prove the other driver was talking on a cell phone at the time of your car accident.  One of the best ways is use the other driver’s cell phone records.  Cell phone records show the date, time and duration of all calls made or received from a cell phone.  Of course, the same legal rules apply to you if you decide to use a cell phone while driving.

Thus, to protect your legal rights and most importantly your life, you may want to think twice before driving while talking on a cell phone.  If you decide that you must use a cell phone while driving, you may want to consider a hands-free device.  If you’ve been injured in an accident and would like more information about how to obtain and use cell phone records to win your personal injury claim, CONTACT me.

Note: Although West Virginia has no general state-wide cell phone laws, West Virginia – thankfully – does prohibit drivers with learner’s permit from using a wireless communication device while operating a motor vehicle (except in an emergency).

If you’re injured by a defective product, such as a defective car like the Ford Pinto to the right, you may be able to recover compensation for your injuries from the manufacturer, distributor and/or seller of the product under several different theories of liability including negligence, strict liability, and/or breach of warranty.  These type of claims generally fall under the category of product liability law.  Products subject to such laws include virtually any tangible thing you can purchase including trucks, guns, motorcycles, toys, drywall, tools, appliances, and over-the-counter and prescription drugs.

If you are injured by a product, keep the product and all of its parts in a safe place and in the same condition it was in at the time of your injury. Do not attempt to repair the product as it is likely the most important piece of evidence in your case.  You will likely need it to show that the product was in fact defective.  Of course, if you repair it, it’s no longer defective and you will have effectively destroyed your evidence.

What is Strict Liability?

The general rule for recovering under the theory of strict liability is that an injured person may recover if he or she was injured by a product that it is not reasonably safe for its intended use.  Under West Virginia law, it’s no excuse that other manufacturers are making similar products that are also not reasonably safe.  In contrast to a negligence claim in which you would have to prove that whoever injured you acted negligently in order to recover compensation, a strict liability claim means that you don’t have to prove that the defendant acted negligently or in any culpable way.  To prevail on a defective product strict liability claim in West Virginia, you generally only have to prove that you were injured by a defective product while using the product as it was intended to be used or using it in a reasonably foreseeable way.   If you were injured by a product, you may have a claim and should consult an experienced personal injury lawyer as soon as possible.

West Virginia, like every other state but New Hampshire, requires all passengers (not including cute dogs) to wear a seat belt. The primary rationale behind seat belt laws is to protect drivers and passengers from injury and death.  However, if the increased risk of injury and death associated with not wearing a seatbelt is not enough to motivate you to wear one, perhaps the limited “seat belt defense” is.

The Limited “Seat Belt Defense”

The limited “seat belt defense”  means if you are injured in a car crash while not wearing a seat belt and your injuries were caused or made worse by your failure to wear a seat belt, then the amount of damages you can collect may be reduced.  In other words, the defendant who may be the primary cause of your car accident , may be able to assert the seatbelt defense to limit the amount of compensation you can recover from him.

In West Virginia, the “seat belt defense” is a little more complicated and limited by statute.  It’s also not available in all circumstances.  Thus, it is important to consult an experienced West Virginia personal injury lawyer regarding your particular situation, and please, take care and wear a seatbelt regardless of the laws.

West Virginia Personal Injury Lawyer

Yes, in West Virginia, if you’re injured in an accident that was partly your fault, you may still have a personal injury claim.  However, if you are 50% or more at fault you probably don’t. West Virginia has adopted the modified comparative negligence doctrine. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Under this doctrine, a claimant’s action is barred if his or her negligence equals or exceeds the combined negligence of all the other parties involved in the accident. If the claimant is less than 50% at fault, his or her recovery is reduced in proportion to his or her degree of negligence.

For example, consider the auto accident hypothetical below:

Suppose you are driving down the road five miles over the speed limit and suddenly another car swerves into your lane and hits your car.  You then file suit and and your case goes to trial.  The jury finds that you were 10% at fault and the other driver was 90% percent at fault.  The jury also finds that your damages are $100,000. Under the modified comparative negligence approach, you would recover $90,000 (90% of your damages), which is proportionate to the other drivers fault.

If the jury had decided that you were 50% or greater at fault, you would have recovered nothing, and, in fact, the other driver would have likely had a personal injury claim against you.  On the other hand, if the jury had decided you were 49% at fault and the other driver was 51% at fault you would have recovered $51,000 and the other driver would have recovered nothing.

Is the modified comparative negligence doctrine the best approach?

Although it’s easy to see how West Virginia’s modified comparative negligence approach can be problematic when it’s a close call as to who is at fault, other approaches are even more problematic and can result in harsh, unfair results. For example, the draconian contributory negligence rule states that if you are at fault to any degree (even 1%) then you cannot recover in court. The pure comparative negligence approach can also be problematic because it allows an injured person to recover so long as he or she is less than 100% at fault.  Thus, most parties involved in a car accident could be a plaintiff.  For example, in the above scenario, even though you were only 10% at fault, if West Virginia followed the pure comparative negligence approach, the driver who swerved into your lane could potentially sue you and recover 10% of his damages.

There are a number of other issues that could affect your claim and how a West Virginia court will apply the modified comparative negligence doctrine.  For example, proximate cause is still a requirement to recover damages, and comparative negligence is not an available defense in intentional tort cases.  Thus, it’s advisable to consult with an experienced personal injury lawyer to evaluate your case. Your comments and opinions about the different approaches mentioned above are appreciated.