1. Always call the police so a report will be made.
2. Gather your thoughts so you can be coherent and organized.  Review the scene and reconstruct what happened in your mind.
3. Tell the officer what happened.  The other driver may spin the facts differently so you need to be heard.  If you can’t do this at the scene, the officer may come to see you in the hospital or you should call him or her.
4. If you are able, take photographs or have a friend do so at the scene showing the damage to both vehicles and the scene.  If you are unable to take photo’s at the time, take a lot of photos from different angels of the damage later.  Use a camera rather than a cell phone if possible.
5. Check the speed limit and be sure you were not speeding.
6. If you think you may be hurt, do not tell the officer that you are ok.  He will check a box on his report that there are no injuries.  Soft tissue injuries often exhibit stiffness or no symptoms at the time of injury but usually get worse later.  The adrenalin pumping through you at the accident scene may mask injury symptoms.
7. If you think you may be hurt, seek treatment as soon as possible.  Delays may lead to the insurance company saying you were not hurt in the accident.  Think carefully when you relate your injuries to a health care provider.  Often only the major area of immediate pain is related and other minor injuries become problematic later but were not mentioned at first.
8. Call you insurance company as soon as you can.  We recommend that you call within 24 hours.
9. Pay attention to potential witnesses.  If someone saw the accident, get their name and phone number.

If you are injured, see an attorney as soon as possible.  At our firm, the first consultation for a personal injury case is free.  For more information call 1-800-201-9987 or (434) 332-5155 or fill out a consultation form here.

Brandon S. Osterbind, a lawyer at Overbey, Hawkins & Wright, settled a wrongful death/tractor trailer/pedestrian accident for $500,000. Brandon represented the family of a man who was fatally injured by a tractor trailer at a truck stop in Shenandoah County.

In this case, a 68 year old man was walking out of a truck gas station in Shenandoah County one evening after parking his truck and purchasing food from the convenience store.  It was dark outside and raining, but the parking lot was well lit.  The pedestrian was wearing blue jeans and dark shirt.  The Defendant was driving a commercial tractor trailer in the parking lot of the gas station when he made a right hand turn around the rear of the gas station and, according to the Virginia State Trooper, he struck the pedestrian in the rear with the driver side stairs leading up to his truck.  Defendant told the Trooper that he heard a thump and stopped.  He also told the Trooper that he never saw the pedestrian.

There were no eye witnesses to the collision and the Defendant disputed liability.  Because the Defendant said he never saw the pedestrian, no one really saw the collision.  In Virginia, the Plaintiff has the burden of proving how the accident happened.  Ragland v. Rutledge, 234Va. 216, 220, 361 S.E.2d 133 (1987).  The Plaintiff can prove how the accident happened through direct or circumstantial evidence.  Eye witness testimony would be considered direct evidence.  Eye witness testimony is not always required, although it is most certainly helpful and preferred.  Other evidence, like the location of the truck, the pedestrian, the type of injury and the timing of the collision, would be considered circumstantial evidence.

When a person involved in an accident dies from that accident, the law presumes that that person exercised reasonable care in crossing the parking lot unless an independent witness saw otherwise.

“[A] defendant who relies on contributory negligence as a defense has the burden of proving that it existed and that it was a proximate cause of the accident.  As a corollary to this rule, it has also long been accepted universally that in a wrongful death action, in the absence of eyewitnesses testimony or other evidence to the contrary, it will be presumed that the deceased acted with ordinary care.  This well settled principle derives from the recognition that, death having silenced the decedent from testifying in his own behalf, the defendant should not benefit from being able to assert that the decedent was negligent in the absence of other evidence to support that assertion.”

Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 136, 563 S.E.2d 764 (2002) (emphasis added) (citing Elliot v. Lewis, 207 Va. 361, 265, 150 S.E.2d 129, 131 (1966); Charlottesville Music Cen. v. McCray, 215 Va. 31, 37, 205 S.E.2d 674, 679 (1974); Hagan v. Hicks, 209 Va. 499, 505, 165 S.E.2d 421, 426 (1969); Looney v. Metropolitan Railroad Co, 200 U.S. 480, 488 (1906); and Richards v. Southern Pacific Transp., 666 F.2d 99, 109 (5th Cir. 1982) (Tate, J. dissenting)).

In wrongful death cases, the wife and children of the deceased are entitled to damages for “sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent; expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; reasonable funeral expenses; and punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.”  Code § 8.01-52.

Brandon and his clients agreed to submit to nonbinding mediation with Judge Bruce Bach who works with the McCammon Group, a well-recognized group of mediation professionals.  After a long day of mediation, the parties agreed to settle for $500,000.

Lawyers are limited in what they can and cannot say to a jury.  Obviously, the lawyer can argue the facts and the law to the jury.  The issue may be negligence on the part of the defendant or contributory negligence which bars recovery all together in Virginia.  Or, the issue may be how much the injured plaintiff’s claim is worth.  Valuing a particular case is very difficult and takes many factors into account.

Virginia has multiple “elements” of damages including the obvious current and future medical expenses and current and future pain and suffering and the not-so-obvious elements such as past and future inconvenience, bodily injury, past and future lost wages or lessening of earning capacity, etc.  Here is a snapshot of a sample damages jury instruction upon which the jury will base its verdict:

As a general rule or perhaps it’s more like a guideline, the most universally accepted trial practice has been to explain all of the elements of the plaintiff’s damages and ask the jury for a lump sum amount of damages that fully and fairly compensates our client for her injuries.  This practice was difficult in many cases because it seems like that number is too high, but in reality, the number is intended to represent all of the individual elements of damages.  That number is the sum of all the parts, if you will.  And lawyers were generally prohibited from breaking the lump sum down and telling the jury how much ought to be awarded for each element.

Not so any more.  On March 2, 2012, the Supreme Court of Virginia issued an opinion, Wakole v. Barber, which affirmed a plaintiff’s lawyer who did just that.  The lawyer created a chart with all of the elements of damages that were relevant to the case, and assigned an amount to each one.  This way, the jury could see why the lawyer was asking for a specific amount and how the lawyer arrived at that number.  This method seems to more accurately communicate the issue of damages to the jury.  It also helps plaintiffs’ lawyers the ability to build credibility with the jury.

For example, now, the plaintiff’s lawyer can present the following chart to the jury.

DISCLAIMER: THIS CHART MUST BE READ IN CONTEXT AND DEPENDS ON A VARIETY OF FACTORS UNIQUE TO EACH SPECIFIC CASE.  EVERY CASE IS DIFFERENT AND DEPENDS ON THE CIRCUMSTANCES.  NOTHING IN THIS ANNOUNCEMENT SHOULD BE INTERPRETED TO GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.  OVERBEY, HAWKINS & WRIGHT CANNOT GUARANTEE ANY RESULTS FOR ANY CASE.   Advertising., Prof. Conduct Rule 7.2 (2002).

This example is not based on any mathematical formula other than adding the sum of the parts to arrive at a lump sum damages amount.  Other than past medical expenses and lost wages, these numbers are difficult to arrive at and, here, are not based on any facts.  However, depending on the case, the facts will support different variations of formula above.  There may be a case where the injuries do not last very long so the effect on the plaintiff’s health according to the degree a probable duration will be much less than listed above.

A lot of thought and planning is involved in valuing your case and presenting that value to a jury.  If you have been injured in a car accident, trucking accident, bicycle accident, or any other type of accident through no fault of your own, call us at Overbey, Hawkins & Wright for a free consultation on your personal injury case.

David Hawkins and Sam Vance negotiate 875,000 wrongful death settlement in mediation.

In June of 2011, David Hawkins and Sam Vance negotiated an $875,000 wrongful death settlement that related to a motor vehicle accident on behalf of their client. The negotiations took place over the course of a long day in a mediation conference presided over by a retired judge mutually chosen by the parties to the litigation. In a wrongful death case inVirginia, any agreed-upon settlement between the parties must be approved by a circuit court. This is by statute – Virginia Code Section 8.01-55. This is different from other types of settlements involving motor vehicle accidents, where there has been no wrongful death. These settlements typically need no court approval.

As well, at the hearing on the motion or petition to approve the wrongful death settlement, the circuit court judge will consider not only Virginia Code Section 8.01-55, but also the wrongful death statute that determines the statutory beneficiaries, Virginia Code Section 8.01-53. In Virginia, the statutory beneficiaries to a wrongful death action are the surviving spouse and children (and children of any deceased children), or if none, the parents and siblings of the deceased, and any other relative who is primarily dependent on the decedent for support or services and who is also a member of the same household as the decedent, or . . . and continuing on (under the statute) until there are some statutory beneficiaries to take. The statute is important because it is not unusual for those who live with, and who are dependent on, the deceased individual, to be ineligible under the statute, simply because of their relation to the deceased. An example of this would be where the decedent passes leaving a surviving spouse and both stepchildren and natural children. Under the statute, the stepchildren in this example do not take, even though they may have been treated as natural children by the deceased and may in some cases be closer to the deceased than the natural children.

Finally, the timing of the wrongful death beneficiaries statute is also important. Under the statute, the class and beneficiaries thereof eligible to receive such distribution is fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution. In other words, the class is not closed as of the date of death of the deceased.

If you have lost a loved one due to the negligence of another and have questions regarding your potential wrongful death claim, please contact us and we would be happy to help you through this difficult time in your life.

For more information for this particular recall, please go to 12T002.

If you or a loved one are injured by a defective product you have a products liability claim.  If you have these tires, have them checked to see if they are defective immediately to avoid injury.  If you are involved in an accident and you or a loved one is injured because of this defect,call us for help.

If you or a loved one are injured by a defective product you have a products liability claim.  If you have one of the car seats, do no use them until the problem is fixed.  If you are involved in an accident and your child is injured because of this defect, call us for help.

DISCLAIMER: THE FOLLOWING CASE RESULT MUST BE READ IN CONTEXT AND DEPENDS ON A VARIETY OF FACTORS UNIQUE TO THIS SPECIFIC CASE.  EVERY CASE IS DIFFERENT AND DEPENDS ON THE CIRCUMSTANCES.  NOTHING IN THIS ANNOUNCEMENT SHOULD BE INTERPRETED TO GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.  OVERBEY, HAWKINS & WRIGHT CANNOT GUARANTEE ANY RESULTS FOR ANY CASE.   Advertising., Prof. Conduct Rule 7.2 (2002).

On August 1, 2011, Frank Wright won a plaintiffs verdict of $655,000 here in Campbell County in a personal injury automobile accident case.  The Plaintiff was driving to her son’s school when the defendant pulled out in front of her at an intersection in Appomattox.

The Plaintiff had significant injuries resulting in what her doctors diangosed as facet joint syndrome.  She had to have facet injections and she ultimately underwent what was described as a very painful procedure called a rhizotomy.  Before trial, the Plaintiff went through six rhizotomies and her doctors projected that she would have to have to complete the same procedure every nine months for the rest of her life.  At the time of trial, the Plaintiff’s medical bills were just over $55,000.  Her expected future medical expenses were in between $250,000 and $478,000.  The defense admitted liability but contested the extent of the Plaintiff’s injuries.

The defense offered $140,000 to settle before trial but Frank refused to settle the case for less than it was worth.  Frank asked the jury for $875,000.  The jury deliberated for less that two hours and returned a verdict for $655,000.

On June 8, 2010, David Hawkins, joined by Jim Hunter of O’Keefe & Spies, won a $500,000.00 jury verdict in Campbell County Circuit Court against the Lynchburg Livestock Market, Inc.  The trial lasted three days and David and Jim presented evidence for over a day and a half.  The jury deliberated for approximately an hour and a half before returning a plaintiff’s verdict.

The facts were that Jack Hammack was an independent contractor who was called to repair a problem in the Market’s scale house.  To get to the scale house, Jack had to cross an alley where cattle traverse.  On a sale day, which this was, the Market runs through approximately 2000 cattle.

After fixing the problem in the scale house, Jack waited for all cattle to clear the alley, opened the scale house door, looked left, looked right, looked left again, and, after seeing and hearing nothing, Jack entered the alley for a five foot walk across the alley to the catwalk.  As he stepped out of the scale house door, a steer (which is a castrated bull) turned the corner and struck Jack in the stomach knocking him into the scale house door.  Jack hit his head on the door jam and suffered a mild traumatic brain injury.

David Hawkins presented evidence from local expert doctors of Jack’s brain injury and Jim Hunter presented evidence to the jury from several lay witnesses who testified about the effect this injury had on Jack.  The witnesses testified that Jack is not the same person he once was.  Once a mechanical genius, Jack struggled after this injury to complete simple tasks.

The owners of domestic or wild animals are required to take notice of the characteristics and propensities of that animal.  The evidence established that cattle could be easily startled and could turn back and run away from their handlers in a high stress environment like a livestock market.  The Market is charged with that knowledge and should exercise reasonable care to prevent injuries from a startled steer.

David and Jim both argued that the Market could have prevented this accident had it simply exercised reasonable care to make sure that the folks on the premises were safe.  The market is fully equipped with gates that close off the alleyways and David and Jim argued that the Market should have closed at least one gate behind the steer to ensure that, if the steer startled and turned back, Jack was safe in crossing the alley from the catwalk to the scale house.

The attorney for the Market claimed that Jack shouldn’t have been in that alley because he was old and slow.  He also argued that Jack was contributorily negligent by not exercising reasonable care to protect himself from this steer.  But the evidence from Matt Farris and Dwayne Gilliam, the owners of the Lynchburg Livestock Market, Inc., was that Jack didn’t do anything wrong.  Both owners of the Market admitted this to David Hawkins on cross-examination.

After three long days of evidence, the jury deliberated for one and a half hours and returned a verdict for Jack in the amount of $500,000.00.