car crash attorneys

Anatomy of a Work Injury Through the Eyes of a Lawyer That Cares

by Matt Peffer | August 29th, 2018

One of the first things that I learned as a trial lawyer is that I should be educating, advising and litigating for my client. For that to happen, I need to know the same things that we were all taught as young children. What happened? When did it happen? Where did it happen? Who knows what happened? Why did it happen? And most importantly, what do you expect me to do for you? So with that, let’s explore all the areas of law that a work injury can spread to.

The Worst Day of Your Life

As part of your work day, you are asked by your branch manager to drive from your Dupont Circle worksite to the Vienna, Virginia, office to cover for a sick colleague. As you discuss this with your boss, you let her know that you have a conference call with the Atlanta office at 1 p.m. She tells you no worries; you should attend by telephone on your way to Vienna. That sounds like a plan, and before you leave, you check in with your significant other who is on their way to a job interview since they have been out of work for the last six months. Oh, and you send a text to your son that you will watch his game on Game Changer, since there will be no way you will make it back home to Maryland in time for his game. Just another day in your life, and it can’t end soon enough, you think to yourself. However, somewhere west of Falls Church, Virginia, while relaying the data to the Atlanta office, something happens. The next thing you see is your significant other holding your hand in the hospital. You are told that you are lucky to be alive because your car looks like an accordion. The tractor trailer that crashed into your car also hit another car, and that driver was not so lucky. As you try to piece this together, you notice the pins and rods sticking out of your ankle, and your back and head are throbbing with pain. You ask your significant other, what are we going to do? Unfortunately, this kind of day plays out all too frequently. As a trial lawyer, my sole goal is to try to help you put your life together again through the use of the laws that exist to protect you and everyone when this happens. So, let’s begin.

Let’s examine what happened to you. We know from the discussions at the hospital that you were involved in a vehicle crash and that your injuries were caused by that crash. There are many ways to investigate how this crash happened. We can examine the police report, the first responders’ notes and the hospital records for x-rays taken of body parts that you might not know are injured. These are just some of the initial steps I take to make sure I have a basic understanding as to how your life was changed that day.

Let’s examine when it happened to you. We know from the arrival of the first responders that your life was changed at 1:32 p.m. We know from the examination of your phone records that you were on a work call to Atlanta at the time of the crash. We know from your car data, as well as the surrounding road cameras, that you were not speeding and did not leave your lane. We also know from the letters we sent out to the company of the truck driver that they cannot dispose of the phone records or other communications that may have been taking place at the time of the crash or it will be held against them later.

Let’s examined where it happened. We know from the road cameras, towing reports, police reports and reconstruction reports (as you recall, the other car driver was not so lucky) and hospital reports that the crash happened in Falls Church, Virginia.

Let’s examine who knows what happened. We know from the investigation so far that your colleagues in Atlanta heard the crash. We know from the various reports by police that other drivers witnessed the crash. We know from the hospital that your significant other was called to the hospital and given a description of what happened, as was your boss. You also found out that statements were given to all the insurance companies involved.

Let’s examine why it happened. We know from our investigation so far that you were not the cause of this crash. However, that is not the full picture. We also have to know why your injuries happened as a result of the crash. I need to examine not only all the medical reports and tests from the hospital, but also all the treatment reports from the doctors you will need to see and pay to recover from your injuries.

How a Lawyer That Cares Protects You

As a trial lawyer, I have a pretty good idea of why injuries happen, and it usually never starts with “I meant to do that.” The fact of the matter is that all injuries can be prevented—it’s just a question of when it could have been prevented and did the person or entity want to invest the time or money it would take to prevent the injury. Now join me on a journey to put your life together again through the laws that may be available to you.

I know of only two ways that I, as a personal injury lawyer, can put your life together again under the laws: medical treatment and money. I put them in that order because if I take care of your needs, the money will take care of itself. Your first cause of action to rectify the harms brought to you and your family is to pursue a negligence action against the responsible parties. We look at many things when considering who to hold responsible for your harms, including where should we hold those parties responsible. The responsible parties to take care of you medically and financially can be the driver of the truck, the company who employs the driver of the truck, the parties responsible for the design of the roadway you were on, your employer or your own car insurance, among others. In your case, we will decide together which state or federal court we should hold the parties responsible in so that we can put your life together again. In a negligence action, the laws are designed to address both your economic and non-economic harms (pain and suffering), and depending on the state, we will want to pursue it in a court that provides the fullest recovery. However, this will take a considerable period of time, and you have bills to pay and a life to continue while you receive medical care.

We should also look at what other laws there are to protect you. Your injury arose out of and in the course of your employment, and therefore the workers’ compensation laws are available to help you medically and financially. While you are recovering and not able to work, the workers’ compensation laws of at least the District of Columbia, and maybe the surrounding DMV, will provide you with lifetime medical care at the expense of your employer’s workers’ compensation insurance, as well as tax-free weekly income replacement benefits to help financially during your recovery. This is an important law that is sometimes overlooked, but for injuries at work it is invaluable to you, since your employer is required to purchase them as part of your employee benefits.

If we believe that this life changing injury has permanently restricted you from engaging in certain job duties of your employment, you may have rights under the American with Disabilities Act. It is not okay that your career and your family’s right to happiness has been put in jeopardy as a result of this injury. Although a personal injury attorney may not specifically handle this part of your case, he or she should be able to educate as to who may be able to help.

If we believe that this life changing injury has completely eliminated your ability to ever return to gainful employment, you may have access to medical care and financial assistance under the social security laws of your state. This may include a claim for social security disability benefits which you have been paying into because of your employment. Once again, a personal injury attorney should be able to educate you as to what steps to take to protect this right. You may also have been prudent enough to have purchased a disability policy in case of your inability to work, or even your employer, as part of your employment, has a disability policy on your behalf that you could turn to for medical and financial assistance.

What You Should Expect

Now that you have been educated about your rights, you need to be advised as to what your best course is to put your life back together. We will discuss not only the time and effort it will take, but a personal injury will be open and honest about what it will cost you. In most cases, it will cost you nothing as personal injury cases are handled on a contingency basis. This basically means that your personal injury lawyer will not get paid unless you get paid. As all of us are aware, if it’s not worth fighting for, then it is not worth pursuing. I never have represented a person with a life changing injury and heard them say, “My life and my family’s life is not worth fighting for.”

At each step of the process, timely advice is the key to putting your life back together. Therefore, communication with your personal injury lawyer is a sure sign that they care about you. This is all about you. Without you, there is no personal injury case. This relationship is the foundation on which your recovery will begin.

As the saying, “put up or shut up” implies, we are going to have to fight for your rights. Your life changing injury happened, and somebody has to say, “I was the responsible party.” As simple as it is to say, I’m sorry for what I have done, it’s not that simple when money and reputation are involved. In order to put your life back together again, a personal injury lawyer may need to go to trial to have a jury of your peers hold the company of the truck driver responsible, or to force your underinsured insurance policy to pay if they refuse to pay you the benefits you purchased from them. However you choose your fight and against whom you fight, make no doubt about it, you will need a personal injury lawyer to lead the way.

As I said earlier, one of the first things I learned many years ago about what a personal injury lawyer should do: Educate, Advise, and Litigate for your clients, I have spent over 20 years of my life discovering that those are the tools of a personal injury lawyer. I have also discovered that in order to be a personal injury lawyer, I must always strive to be:

A lawyer that will always have time to listen to you. A lawyer that will always have time to put your interest first. A lawyer that will always fight for you.

Safety Never Takes a Snow Day: How to Protect Yourself and Your Loved Ones During Winter Storms

by | March 21st, 2018

This post was written by ChasenBoscolo attorneys Ben Boscolo and Tom Teodori.

Some view a blanketing of snow as a welcome occurrence, while others see it as an annoying disturbance. Regardless of your viewpoint, snow and ice frequently result in workplace injuries or negligence claims. In 2014, more than 42,000 people were hurt on the job in snow- and ice-related accidents. These types of injuries often result in time away from work and the need for medical treatment. The most common injuries are traumatically caused from slipping and falling or are exertional injuries from snow removal. These injury categories may be very broad, but they often involve strains and sprains to the neck and back, broken bones, concussions, joint injuries to the knees, hips or shoulders, spinal injuries and/or heart attacks. Although snow- and ice-related injuries affect people of all ages, the elderly are particularly susceptible.

If you were injured while working due to weather-related conditions, you may be entitled to workers’ compensation benefits. The District of Columbia, Maryland and Virginia have distinct laws when it comes to workers’ compensation, so knowing and being advised of your legal rights is important. For more information on those rights, check out David Kapson’s recent blog post.

How can I stay safe while walking in wintry weather?

The National Center for Injury Prevention and Control, a division of the Centers for Disease Control and Prevention (CDC), reports that falling is the leading cause of non-fatal injuries for those 24 years and older. In order to protect yourself while walking on snow-covered or icy sidewalks and parking lots, you should be mindful of the following:

  • If you do not have to go out, the best way to stay safe is to stay at home to allow snow and ice removal teams to do their jobs.
  • If you have to go out, please be patient with the working men and women who are cleaning up our communities. Here are a few suggestions:
    • Don’t rush. It’s normal to want to get inside and warm up, so people are often in a hurry to get out of the unpleasant weather conditions. However, it’s safer to take it slow and use flat-footed and small steps—almost like a penguin. Stay on cleared or treated walkways and avoid untreated shortcuts.
    • Wear proper footwear for the conditions—avoid heels and smooth-soled shoes.
    • Stay off your phone, watch where you are walking and try to avoid carrying heavy loads.
    • Be very careful when stepping on or off of curbs, as well as when getting in and out of cars.
    • Be mindful of areas that have been subject to refreezing and black ice.

Following these suggestions should help keep you safe. If you are being as careful as you can be but you still fall and are injured, there are laws in the District of Columbia, Maryland and Virginia to protect you. If this happens, it is important that you speak with a trial lawyer who is experienced in handling slip and fall cases.

How long do property owners have to clear sidewalks after a snowstorm?

The simple fact that you fell and are injured does not mean that the person who owns the property is responsible for taking care of your medical expenses, lost wages and potentially life-changing injuries.

In D.C., property owners are required to clear the sidewalks within 8 daylight hours of a snowstorm. Both businesses and homeowners face fines for not clearing sidewalks.

Maryland does not have a statewide snow removal law. The safety rules for snow removal are set by the individual counties. Montgomery County requires property owners to perform snow removal within 24 hours. Property owners in Prince George’s and Howard Counties have 48 hours to complete snow and ice removal. Charles County has no safety rules requiring property owners to shovel snow and clear ice from sidewalks.

Virginia also leaves the snow and ice removal safety rules to the local governments. The City of Alexandria requires snow clearing within 24 to 72 hours, depending upon the severity of the storm. Arlington’s snow and ice removal rules allow 24 to 36 hours, depending upon the severity. Neither Fairfax County nor Prince William County have safety rules for snow and ice removal.

Who is responsible?

While the law is designed to protect our communities and its members, actually holding the person who caused the injury accountable can be very tricky for multiple reasons:

Both businesses and homeowners have insurance to protect them if someone is hurt by their negligence or irresponsibility with snow and ice removal. But insurance companies employ armies of lawyers whose jobs are to protect the insurance companies’ money. They know all of the tricks that can be used to avoid having to pay for an injured person’s medical expenses, lost wages and life-changing injuries. When an injury in a fall changes your life, it’s important to talk with a trial lawyer who has actually gone to court in these kinds of cases to have a fighting chance against the insurance company’s lawyers.

Here are a few of the legal tricks that insurance company lawyers use:

  • First, the insurance company will say there’s nothing the business or homeowner could have done to prevent the fall or the resulting injuries. This is simply not true. An experienced trial lawyer will know how to show all of the steps that a responsible property owner should’ve taken in order to prevent ice and snow from creating the risk of a fall, much less the fall that actually happened.
  • Second, the insurance company’s lawyer will argue that the business or homeowner did not know that there was a dangerous condition on their property. This argument stops many innocent people from being protected since proving that the property owner had notice requires very specific evidence. Again, an experienced trial lawyer will know how to fight the insurance companies’ tactics and find the evidence needed.
  • Finally, and most dangerously, is contributory negligence. The District of Columbia, Maryland and Virginia are three of the five states in the United States that still follow the rule of contributory negligence. What that means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the fall, the property owner is not responsible to pay for the injuries.

Beware of Recorded Statements

When someone in our community is injured by a property owner’s choice to not follow the snow and ice removal safety rules, the injured person will likely get a phone call from a representative of the property owner’s insurance company. The insurance company will tell the injured person that they need to take a statement to set up the claim. DO NOT GIVE A STATEMENT. That statement will give the insurance company lawyer all the ammunition they need to shoot down your claim.

How do I stay safe while driving during winter storms?

People who are not able to stay at home during winter storms frequently have to drive. But driving in winter conditions is more dangerous than trying to cross slippery sidewalks and parking lots on foot. According to the National Highway Traffic Safety Administration (NHTSA), 17% of all vehicle crashes are caused by winter weather conditions. More than 1,300 people lose their lives in snow- and ice-related vehicle crashes each year. In addition, more than 116,000 people are injured in snow-related crashes annually.

IF YOU CAN STAY OFF THE ROADS, YOU SHOULD DO SO.

If you do have to leave your home, here are a few suggestions to keep you safe while you are driving to help protect both yourself and those on the road around you:

  • Make sure your vehicle is winterized and that you have appropriate clothing and supplies in your car in the event that something goes wrong.
  • Since everything takes longer on snow covered roads, remember to accelerate, brake and turn slowly. Give yourself and your vehicle time to safely respond.
  • Double your following distances.
  • Try to avoid stopping on hills. Maintain some momentum in order to prevent getting stuck.
  • Try to avoid coming to a complete stop. If you can slow down enough to keep rolling, you will lesson your chances of getting stuck.
  • If all else fails, be mindful that if its not necessary, don’t go out until government crews have safely treated the roads.

If you are injured by an irresponsible driver during winter weather conditions, the laws of the District of Columbia, Maryland and Virginia will protect you. The irresponsible or negligent driver is required to pay for your medical expenses, lost wages and interruption in your life that they cause.

We all know that the drivers on the roads in our community are covered by insurance. If you are injured in a car wreck during winter weather conditions, you should talk to a trial lawyer who has a track record in court with these kinds of cases. Many people believe that making a claim for injuries in a car wreck will cause their insurance bills to go up. THIS IS NOT TRUE. Only the person who causes the wreck will pay higher insurance bills.

How Insurance Companies Protect Irresponsible Drivers in Winter Weather Crashes

Just like in fall cases, drivers who do not follow the traffic safety rules are protected by insurance companies and their armies of lawyers. Everything the insurance company says to you and asks you to do after a wreck is carefully planned. The plan is designed to make sure the insurance company lawyer can make the injured person look like a liar, a faker or a fraud at trial. DO NOT TALK TO THE INSURANCE COMPANY WITHOUT GETTING LEGAL ADVICE FIRST.

Just like in slip and fall cases, there are legal defenses that relate to winter weather conditions that can be used to protect drivers who do not follow the traffic safety rules—and their insurance companies’ wallets. Two of these defenses are the “sudden emergency doctrine” and contributory negligence.

An insurance company will argue that winter weather conditions create “sudden emergencies.” They will say that these emergencies make car wrecks unpreventable. But this is simply not true. If the injured person gives the insurance company a recorded statement, one of their goals will be to gather facts from that person that can be used in court to prove that the injury was the result of an unpreventable sudden emergency. A trial lawyer that fights insurance companies in court will know how to stop the insurance lawyer from using this trick to avoid accountability.

Contributory negligence in a car wreck case is the same as in a slip and fall case. What this means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the wreck, the irresponsible driver gets a pass for the injuries they caused. Again, this is why it’s important to talk to an attorney before you talk to the insurance company, even if it is just to know your rights.

Winter weather can be very dangerous, especially when people behave irresponsibly. Thinking about the dangers is the first step in protecting ourselves and our loved ones from suffering life-changes injuries. No matter how careful we are, the choices other people make can still lead to life-changing injuries. If that happens, its important to know your rights and your legal options. This doesn’t just help you get justice—it helps make our communities safer by making it clear that property owners and drivers who take a snow day on the safety rules won’t get a pass.

Health Insurance and the Personal Injury Case: The Collateral Source Rule

by Jonathan Breeding | March 13th, 2018

My clients often ask me, “Does the person or company that hurt me pay for the entire bill or just my co-pay or deductible? Should I even use my health insurance?”

The short answers to these questions are “The entire bill” and “Yes.” I don’t always get to give the long answer. The reason for those answers is the collateral source rule, one of those classically clunky legal turns of phrase, but a rule that I’ve thought a lot about since I became a trial lawyer, because it’s one I explain to a lot of my clients. It has become even more important to me as I have seen the efforts to eliminate the rule in Missouri, where I was born and raised. Today, I’ll discuss what the rule is, why it has been under attack, and why I think the time has come to let juries hear the whole truth about the effects of insurance in our courtrooms.

What is the collateral source rule?

The collateral source rule deals with payments to injured people that are “collateral” to the person responsible (aka the “tortfeasor”, the negligent party, the wrongdoer, or the defendant). For instance, those payments might include the benefits an injured person receives from workers’ compensation, social security payments, paid sick leave or vacation, unemployment benefits or, especially in our context, health insurance payments.

When an injured person uses their health insurance to pay for medical treatment, often the insurer will pay a much lower rate for the treatment than would be billed to a person paying out of pocket. Part of the benefit of health insurance is this: by purchasing treatment in bulk, the insurer can negotiate favorable rates. So, if the negligent party hurt me and put me in the hospital, the bill for which is $100,000, but my health insurance settled the bill on my behalf for $30,000, and I paid only $1,000 out of my own pocket, how much does the negligent party owe me—$100,000, $30,000, or $1,000?

The answer in Virginia, and in most states, is that the defendant is on the hook for the entire bill, or $100,000.

A plaintiff who receives a double recovery for a single tort enjoys a windfall; a defendant who escapes, in whole or in part, liability for his wrong enjoys a windfall. Because the law must sanction one windfall and deny the other, it favors the victim of the wrong rather than the wrongdoer.1

In other words, those health insurance payments are either going to benefit me, the injured person, because I will get to “charge” the defendant a price I didn’t pay, or they’re going to benefit the wrongdoer, who got lucky when he hurt someone who was responsible and paid for health insurance. If somebody is going to benefit, the law says the person who did nothing wrong ought to benefit.

The way the law comes into play in trial is through the collateral source rule jury instruction, which is read to the jury by the judge before they make a decision on the verdict:

The presence or absence of insurance or benefits of any type, whether liability insurance, health insurance, or employment-related benefits for either the plaintiff or the defendant, is not to be considered by you in any way in deciding the issue of liability or, if you find your verdict for the plaintiff, in considering the issue of damages.

The existence or lack of insurance or benefits shall not enter into your discussions or deliberations in any way in deciding the issues in this case. You shall decide this case solely on the basis of the testimony and evidence presented in the courtroom, as well as the other instructions given to you by the court.2

Because of this rule, nobody in a trial is allowed to talk about insurance. The defendant wrongdoer cannot bring up the health insurance payments made on behalf of the injured person. The plaintiff, who was injured, cannot bring up the defendant’s car insurance or other liability policy.

Should I use my health insurance?

So what about the second question—should I even use my health insurance? The answer is yes, unequivocally. The Commonwealth of Virginia has what is called an “anti-subrogation” statute, which means that health insurers are usually not allowed to recover any payment they make on behalf of a person injured by the negligence of another.3 In certain circumstances (usually with large employers or government jobs) the insurer has a right to recovery, and the question becomes a complicated one that could (and has) filled entire blog posts of their own.4 Even if you are ultimately required to repay your insurer, however, they will have paid far less for your treatment than you would be paying out of pocket. 

“Phantom Damages”

As I mentioned before, in 2017 Missouri passed a bill in their state house that would limit the injured person from presenting medical bills that their health insurer had paid.5 House Bill No. 95 would permit either party to introduce evidence of the “actual cost” of treatment, “after adjustment for any contractual discounts, price reduction, or write-off by any person or entity.” The bill is known as the “phantom damages” law, and it’s no surprise that Chamber of Commerce6 and defense lawyers7 favor them.

They argue that “strengthening” the collateral source rule is their goal, but in fact the proposed laws eliminate the protection the rule gives to injured people. If an innocent person who works hard for a living and pays, either directly (on the open market) or indirectly (as a benefit of their employment) for health insurance, why should those payments benefit the person or company who injures them?

Consider this: a defendant crosses a double-yellow line and strikes another car head-on, injuring two identical twins in identical ways. These two twins, for the sake of argument, have identical lives in every way except one: one of them has health insurance and the other does not. Has this wrongdoer injured the twin with health insurance less than the one without health insurance? Of course not, but this is what the state of the law would be in Missouri if HB 95 becomes law.

So where does this proposed law come from? It’s not just the Chamber of Commerce. Like with a lot of the state legislation in America that benefits large corporations, the original author of the bill is the American Legislative Exchange Council (ALEC), a corporate-funded scheme masquerading as a “limited government” lobbying group whose purpose is to rewrite state laws to protect companies at the expense of regular people.8 Specifically, the author of the “phantom damages” model bill for ALEC is an attorney for Shook, Hardy & Bacon.9 This is the same law firm (based in Kansas City, Missouri, coincidentally) that infamously defended the tobacco industry for years, which a Federal judge all but accused of orchestrating a fraud on behalf of the industry as their propagandists, apologists, and co-conspirators in the 1960s and 1970s.10

It’s not just Missouri. As close to home as West Virginia, there was a so-called “phantom damages” bill introduced in 2017 that closely tracks the ALEC language.11 The West Virginia law, SB 197, would prohibit introduction of medical bills incurred and limit the injured person to introducing only bills actually paid.12 This change would introduce another barrier to injured people getting justice, as those without health insurance of any kind, who have no ability to pay, often rely on their doctors to treat them first on the written promise of being paid out of their subsequent settlement or verdict. SB 197 would be a disaster for injured people in West Virginia, especially for those who can least afford an injury.

The changes are not just limited to legislative statutory changes, either. All over the country, courts are beginning to turn against this common-law rule. The long history of medical billing that brought us to this point, where health care providers routinely bill a “sticker price” that greatly exceeds what they actually accept from insurance, is beside the point here today. No longer will courts look to the “sticker price” as conclusive in determining whether the amount of medical bills is “reasonable.” Courts in Pennsylvania, California, Texas, Minnesota, Florida, Idaho, New York, Georgia, Vermont and Mississippi have all decided the plaintiff has no right to recover medical bills not actually paid.13 Yet others, Ohio, Massachusetts, Indiana and Kansas among them, have thrown up their hands in effect, and permitted both sides to present evidence concerning the reasonable value of the medical services delivered.14

These efforts by the insurance industry are clearly aimed at hurting injured people and saving big companies money. However, they are appealing to some people, me included, because by hiding behind a medical bill that everyone knows does not reflect what medical providers actually receive, Plaintiffs are not being honest with the juries that decide their cases. In fact, I think the time has come to get rid of the collateral source rule, so long as we get rid of it on both sides.

The Other Collateral Source

It’s not only injured parties who have insurance agreements that may cover all or part of their losses, of course. Most companies and people have a liability insurer who will defend their interest if they hurt someone and are sued and will pay for any judgment the injured person receives. However, the Supreme Court of Virginia has long held “that evidence as to whether defendant did or did not carry liability insurance was irrelevant and inadmissible. This holding is based on the theory that such evidence tends to unduly influence the jury on behalf of the plaintiff.”15 The rule has been in effect since at least 1907, when the Court held

the fact that the defendant was insured against accidents could throw no light upon the question of whether or not the defendant was guilty of negligence. It may be true that the fact of insurance might have the effect of lessening the reason or motive of the defendant to be careful; but the question for the jury to pass on was, not of how much or how little motive the defendant may have had for being careful, but whether as a matter of fact it had exercised reasonable care.16

The reasoning of the court could not be clearer – they believe that when jurors know that their verdict will not bankrupt the individual who caused the injury but instead will be paid from the wallets of State Farm, Nationwide, Allstate etc., they will become more generous:

The plaintiff here has been allowed to obtain the advantage of having the attention of the jury called to the insurance, a wholly collateral subject, which was likely to influence the mind of the average juror notwithstanding the instructions of the trial court. The reception of such evidence sometimes has a subtle influence that will act unconsciously upon the mind, and hence not be removed by instructions.17

The rule is not at all unique to Virginia; it is universal. It is explicit in the Federal Rules of Evidence, Rule 411: “Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.”18 The notes of the rule indicate that, of course, it is difficult to infer fault from the mere presence or absence of liability insurance, but that “more important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds.”19 The rule that a mention of insurance will result in a mistrial is one of the first things a young trial lawyer learns.

To return to the jury instruction in Virginia, the actual “Collateral Source Rule”, the goal is that jurors should not consider the Defendant’s ability to pay, just as they should not consider what compensation the Plaintiff has already received. The jury is to decide the case on the “merits”, which is to say, the elements in negligence: did the Defendant breach a duty, which proximately caused the Plaintiff’s damages? However, the Virginia Supreme Court has acknowledged that the fact of insurance could not be erased by a court’s instruction. They recognize that the presence of liability insurance could influence a person’s propensity to take risks in their behavior toward others. Jurors are curious about the existence of liability insurance covering the Defendant because it is relevant.

There can be no doubt that jurors are, by and large, aware that liability insurance exists for drivers and for corporations. It is not only expected; it is required. There is no doubt, too, that they are curious about the existence of health insurance, workers’ compensation benefits and the like on the Plaintiff’s side, when some 9 out of 10 people today have health insurance.20 It is naïve to think that jurors do not consider the ability of the Defendant to pay. Yet based on the evidence shown to the jury in trial (which is all they are permitted to consider), a verdict that would actually fully compensate the Plaintiff for a life-changing injury is going to bankrupt any individual Defendant. The fact that the money actually comes from GEICO, or State Farm, or Nationwide, or Allstate is never acknowledged by the judge, the parties or the attorneys, and it is never supposed to be discussed by the jury. This is the ruse behind which the insurance industry hides to stockpile half a trillion dollars in profits over the last 10 years.21 It is well past time to drop the kabuki show in front of our juries—they know and expect that both sides have insurance to cover their losses, and in pretending otherwise the lawyers, judges and the entire court system are lying to them. This insults their intelligence and undoubtedly undermines their confidence in the justice system as a whole. It’s time to put the cards on the table—these are the real bills; this is what the Plaintiff really had to pay. But as in any fair card game, both parties have to show what they’re holding—the jury has a right to know about the insurance coverage on BOTH sides of the courtroom.


[1] Schickling v. Aspinall, 235 Va. 472, 475, 369 S.E.2d 172, 174 (1988)

[2] Virginia Model Jury Instruction 9.015

[3] https://law.lis.virginia.gov/vacode/title38.2/chapter34/section38.2-3405/

[4] http://www.allenandallen.com/blog/liens-against-personal-injury-recoveries-in-virginia.html

[5] https://legiscan.com/MO/text/HB95/2017

[6] https://mochamber.com/news/action-tort-reforms-house-committee-approves-legislation-addressing-expert-witness-collateral-source-rule/

[7] http://www.talawfirm.com/several-states-take-action-to-exorcise-phantom-damages

[8] Learn much more about how ALEC hurts regular people here: https://www.alecexposed.org/wiki/ALEC_Exposed

[9] https://www.sourcewatch.org/index.php/ALEC_Civil_Justice_Task_Force

[10] http://www.nytimes.com/1992/11/20/news/tobacco-its-middle-name-law-firm-thrives-for-now.html?pagewanted=all

[11] http://www.kaycasto.com/wv-tort-reform-eyes-phantom-damages-sb-197/

[12] http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=sb197%20intr.htm&yr=2017&sesstype=RS&i=197

[13] https://www.druganddevicelawblog.com/2014/10/of-phantom-damages-collateral-sources.html

[14] Id.

[15] Highway Exp. Lines v. Fleming, 185 Va. 666, 672, 40 S.E.2d 294, 297 (1946)

[16] Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 56 S.E. 725, 728 (1907)

[17] Lanham v. Bond, 157 Va. 167, 174, 160 S.E. 89, 91 (1931)

[18] https://www.law.cornell.edu/rules/fre/rule_411

[19] Id.

[20] https://www.cdc.gov/nchs/fastats/health-insurance.htm

[21] https://www.insurancejournal.com/magazines/features/2015/12/07/390548.htm