Northern Virginia Personal Injury Lawyer Blog

Insurance-Insurance Agents

Brien Roche — Mon, 01 Mar 2010 14:06:41 -0500

Most insurance is sold through insurance agents. Insurance agents are frequently referred to as dual agents. That is, they are both an agent of the company that underwrites the insurance policy and also the person who applies for the insurance policy. To say that they are a dual agent means that they have certain duties to each party—certain duties to the underwriter and also certain
duties to the insured.

Insurance-Malpractice

Brien Roche — Wed, 24 Feb 2010 12:41:34 -0500

If you are a medical doctor, you most likely have a malpractice insurance policy covering you. That malpractice policy is a form of liability coverage that would apply in an instance where a patient sues you for malpractice. In that event, the malpractice insurance company would step in, conduct an investigation, and determine if the claim should be adjusted or negotiated. Some medical malpractice policies require the consent of the doctor before any settlement offers can be made. In the event the insurance company does not settle your patient’s claim, the patient may file suit against you. The insurance company would appoint an attorney to represent you and then would indemnify you as to any judgment up to the amount of your policy limits.

Insurance-Homeowners Insurance

Brien Roche — Tue, 23 Feb 2010 10:45:09 -0500

Another type of insurance coverage is homeowners insurance coverage. A homeowners policy typically includes a fire endorsement, which would cover you in the event that your house, including contents, burns down. It is important that you make sure that the stated value is consistent with the replacement cost or the fair market value of the house when reviewing this type of coverage. For instance, if you are in a geographical area where property values are increasing dramatically, then it is important that you likewise increase the covered amount under this provision of your homeowners policy to make sure that there is enough money paid to you in the event that your house does burn down. Likewise, within this type of policy there may be coverage for water damage, theft, and also for liability claims.

Liability may arise in a homeowner’s context when a guest is on your premises and is injured as a result of some defect on the premises. For instance, suppose there is a large hole in your backyard that is covered by overgrown grass and your guest falls into that hole and breaks an ankle. If you knew of the hole and did not disclose it, then the guest may have a basis for a liability claim against you alleging that there is negligence on your part. If a judge or jury were to agree with that, then the liability insurance policy would have to indemnify you up to your policy limits. Under this type of liability policy, the liability insurance carrier would also provide an attorney to defend you.

Under a homeowners policy, if there are specific valuable items of personal property that you wish to have covered, they normally have to be covered under a scheduled loss section of the policy where the specific items are identified. There may even be a requirement that an appraisal or pictures of the objects be provided as part of the insurance policy.

Insurance-Health

Brien Roche — Mon, 22 Feb 2010 09:25:32 -0500

Another type of insurance coverage is health insurance. Health insurance contracts are frequently group insurance contracts wherein you, as a member of a group, pay a premium to the insurance company in return for the insurance company agreeing to cover medical and hospital expenses up to certain limits. The general limitation of the scope of coverage under these policies is that the treatment that you receive must be reasonable and necessary and the cost of the treatment must be consistent with the usual and customary charges for other practitioners in the area.

For instance, if you decide to have plastic surgery that is purely elective, this type of treatment may not be covered unless you have a special endorsement or provision within your policy that provides coverage since the treatment is not necessary. Likewise, if you choose to go to the most expensive orthopaedic surgeon in the area because you think he or she is the best, all of the charges rendered by that surgeon may not be covered under your policy. The policy is governed by what is usual and customary for those types of services and not necessarily by what the best practitioner in that area may charge.

Insurance-Life Insurance

Brien Roche — Fri, 19 Feb 2010 10:19:02 -0500

Another form of insurance is life insurance coverage. A life insurance policy is simply a contract between you—the insured—and the insurance company wherein the insurance company agrees to pay a certain amount of benefits upon your death. Assuming that there have been no misrepresentations made by you in applying for this type of insurance coverage, then your survivors would simply make a claim to that insurance company upon your passing and the designated beneficiary will then receive the benefits due.

There are different types of life insurance coverage. The most common form of life insurance coverage these days is term life insurance. Term life insurance policies have no value other than the face amount of the policy and even then have no value unless the person who is insured passes away during the coverage period.

Another type of life insurance coverage is that of whole life coverage. This is actually a type of investment in which the value of the policy may increase over a period of time as you pay premiums. You may also be allowed to take loans against the policy and perhaps even redeem the policy for a fixed amount of money. The theory behind whole life is that you not only are insuring your life, but you are also making an investment that is increasing in value over a period of time that you may utilize by taking a loan against it or cashing it in.

In most life insurance policies, the application for insurance is included as part of the policy. The reason for that is that payments under life insurance policies are generally rather substantial. If there are any misrepresentations made in the application that may be a basis for voiding the insurance policy. Frequently those misrepresentations are not discovered until after the person has passed away and an autopsy has been performed.

Insurance-Automobile

Brien Roche — Thu, 18 Feb 2010 15:16:13 -0500

The type of insurance coverage that you are probably most familiar with is automobile insurance coverage. An automobile policy may include several different forms of coverage. Within one policy there may be liability coverage, there may be medical expense coverage, there may be collision coverage, and there may be uninsured motorist and underinsured motorist coverage. Each of those types of coverage is dramatically different and each of them has a different objective.

Liability coverage is designed to protect you, the insured, in the event you are involved in a collision in which some other person is injured as a result of your alleged negligence. If a person is injured and they contend that you are negligent, then they may assert a liability claim against you for their medical expenses, lost wages, pain and suffering, resulting disabilities, disfigurement, etc.

Your liability insurance policy would cover you in that instance by providing you with an attorney to defend you in that claim and by indemnifying (reimbursing) you for any judgment rendered against you in that case up to your policy limits. If your policy limits are fifty thousand dollars, but the judgment entered against you is for five hundred thousand dollars, then your insurance company is only obliged to pay fifty thousand dollars. The remaining four hundred and fifty thousand dollars may come out of your pocket.

Also within an automobile insurance policy there may be comprehensive coverage. Comprehensive coverage is a type of first party coverage wherein you may make a claim against your own policy as a result of damage to your vehicle. If your vehicle was damaged in a collision and you do not wish to or cannot assert a claim against the other party (or if you were at fault), then you may make a claim against your own policy under your collision coverage. Your insurance company will then pay you for the repair cost of your vehicle. In the event your vehicle is totaled, it will pay you the fair market value for that vehicle. If someone other than you was at fault, your insurance company may then have a right of recovery against that other driver.

Most forms of collision coverage do carry a deductible. This means that you would only be compensated by your insurance carrier for the amount of money that exceeded your deductible amount.

Auto insurance coverage also offers what is referred to as medical expense coverage or personal injury protection coverage. This is a type of first party coverage wherein you may make a claim against your own insurance company for medical expenses incurred as a result of a collision. If you are injured in an automobile collision while in your car, you can make a claim against your policy for payment of your medical expenses to the extent that they were reasonable and necessary as a result of this collision. If you are a passenger in someone else’s vehicle, then, assuming there is medical payments coverage for the vehicle you are riding in, you can also make a claim for medical payments under that policy. You may be able to make a claim for medical payments under both your policy and the policy of the vehicle you are riding in.

Another form of coverage under a typical automobile insurance policy is uninsured motorist and underinsured motorist coverage. This is a very important form of coverage because it protects you in the event that you are involved in a collision that is the fault of an uninsured or underinsured motorist.

Example: Suppose you are hit from the rear by a vehicle that is uninsured and you are injured. You could sue the driver of that striking vehicle, but he or she may have no assets to pay any judgment that you may obtain against him or her. In that instance, your own uninsured motorist coverage would apply. In such an event your insurance company could essentially step in and defend that uninsured motorist, or at least take a position that is contrary to you, by challenging your claims for uninsured motorist benefits.

The same basic principle would apply if that striking vehicle was underinsured.

Example: Suppose the vehicle that struck you from behind has twenty-five thousand dollars in coverage but your medical expenses as a result of the collision are fifty thousand dollars. The
striking motorist would then be underinsured. If you got a judgment for your medical expenses, he or she may not be able to pay it. His or her insurance policy would pay the first twenty-five thousand dollars, but anything beyond that would be covered by your policy to the extent that you had underinsured motorist coverage.

Uninsured motorist coverage is a very broad form of coverage. Even if you are a bicyclist or a pedestrian struck by an uninsured motorist (or by a hit-and-run motorist), you may make a claim for and recover under your own uninsured motorist coverage.

If you are struck by a hit-and-run motorist, you may make a claim under your own uninsured motorist coverage.

Insurance

Brien Roche — Wed, 17 Feb 2010 13:49:41 -0500

An insurance policy is a contract. The parties to the contract are the insurance company and the insured. In addition, there may be a beneficiary or what may be referred to as a third party beneficiary of an insurance contract. In a life insurance policy, the beneficiary is the person who receives the death benefits upon the death of a person who was insured. In an automobile insurance policy, the third party beneficiary under a liability policy is the individual who was injured and who receives compensation from that liability insurance policy. The beneficiary or third party beneficiary is not a named party to the insurance contract, but is generally the person who is intended to benefit from the insurance policy. As such that beneficiary may have certain rights under the policy.

There are a variety of different types of insurance policies that can be written. The most common types of policies are liability, life insurance, and health insurance policies.

Workers' Compensation-Second Injury Fund and Uninsured Employer Fund

Brien Roche — Tue, 09 Feb 2010 09:16:03 -0500

Workers’ compensation claims can be complicated when an individual has suffered an injury while employed with one company and then goes to work for another company and later reinjures him- or herself. Which employer is going to be responsible for that compensation?

Some states have set up what is referred to as a second injury fund. In these states, that second injury will be partially paid out of that second injury fund and then also partially paid by the second company. That second injury fund is a fund of money that is created by contributions from all of the different insurance companies that underwrite workers’ compensation insurance coverage in that jurisdiction.

A similar type of fund that may exist is the uninsured employer’s fund. An employer who has not taken out workers’ compensation coverage and who therefore cannot pay the benefits called for under the workers’ compensation act may still be covered in the sense that the employee may make a claim against the uninsured employer’s fund. To the extent that any payments are made out of that fund, the fund administrator or the attorney general of that state will typically make a claim against the uninsured employer in order to recover such payments.
\

Workers' Compensation-Third Party Claims

Brien Roche — Mon, 08 Feb 2010 09:15:26 -0500

If an employee is injured on the job as a result of the fault of some third person, then that employee may have a basis for a claim (sometimes referred to as a third party claim) against that other individual or company. For instance, suppose you are working on a construction job and you are employed by the general contractor. If, while performing those duties, an employee of a plumbing sub-contractor drops a pipe that strikes you on the head, you may be entitled to the benefits called for under the act. In addition to being compensated under the workers’ compensation act, you may also have a basis for a claim against the plumbing sub-contractor whose employee dropped the pipe on you. In some states, on a construction job such as this, all contractors may be immune from suit by any other employee on that construction job. In other states, the employee may sue any other responsible contractor on the job.

If the injured employee in that circumstance does recover money from the third party who caused the injury, then the employer of that injured worker (or more likely the employer’s insurance carrier) is entitled to recover all or part of the monies paid to the worker under the workers’ compensation act. This is a principle known as subrogation. Subrogation literally means that one party is subrogated or steps into the shoes of another party and acquires their rights.

Under most workers’ compensation acts, once the employee makes a claim for and receives benefits, then to the extent that the employee has any right of recovery against a third party, the employer or its insurance carrier acquires that right of recovery to the extent of wage and income benefits it paid to the employee. The purpose of allowing subrogation in this instance is to hold down the cost of workers’ compensation insurance coverage and further to prevent the employee from receiving a double recovery on the wages and medical benefits received.

If the employee receives compensation under the workers’ compensation act and is further compensated for the same injuries as a result of the third party civil claim, that constitutes a double recovery to the employee. After paying back amounts paid to him for wage and medical benefits under the workers’ compensation act, the employee is entitled to keep any excess damages awarded by a jury or received in settlement.

Workers' Compensation-Medical Treatment

Brien Roche — Thu, 04 Feb 2010 09:28:31 -0500

There also is a good bit of controversy regarding the provision of medical treatment to injured workers. Typically, the medical treatment is controlled by the employer or the employer’s insurance carrier. This means that the employee receives treatment from doctors who have been chosen by the insurance carrier or the employer. These doctors obviously know who is paying their bill and they know that the insurance carrier and the employer expect this employee to return to work at some point in time so that their financial exposure in paying wage benefits is limited. Although these doctors generally provide quality medical care for the injured employee, they have a somewhat mixed loyalty. They know that the employer and the insurance company want this employee to return to work, but they also know that it is not necessarily always in the employee’s interest to return to work too quickly or even to return to that form of work at all.

Workers' Compensation-Complex Injuries

Brien Roche — Wed, 03 Feb 2010 12:54:55 -0500

The law relating to workers’ compensation coverage can become extremely complex when dealing with issues of occupational disease. The run-of-the-mill, on-the-job injury in which an employee falls and breaks an ankle does not involve a great deal of controversy. However, the claim of the employee who over a period of time develops, for example, carpal tunnel syndrome as a result of typing at the keyboard, is harder to classify as being a result of the employment. Different states have dealt with that issue in a variety of ways. Some states provide coverage for these types of repetitive stress injuries or exposure injuries; other states do not.

Another area of significant controversy in regard to workers’ compensation claims is compensation for emotional injuries. In some states, an employee who suffers, for example, a nervous breakdown because of emotional stress on the job may be entitled to the whole range of benefits under the workers’ compensation system. Other states have denied those types of benefits on the theory that the relationship between employment and emotional injury is simply too tenuous and therefore the employer should not be made to bear the burden of the expense associated with that type of injury.

Workers' Compensation-Capping Benefits

Brien Roche — Tue, 02 Feb 2010 12:20:32 -0500

There has been a good deal of controversy over the extent to which workers’ compensation laws should provide benefits to injured employees. Many states put a cap on the amount of wage benefits that the employee can receive. In some jurisdictions the employee can receive no more than five hundred weeks of wage benefits, which is the equivalent of approximately ten years of benefits. This is to the advantage of the employer in that it puts a limitation on the employer’s or the insurer’s liability.

However, it may be a detriment to the employee if the employee is permanently disabled and cannot return to any form of work. If in fact the employee is permanently and totally disabled, then he or she may be able to extend those benefits under state law. However, proving that a worker is both permanently and totally disabled is not an easy task. As such, in many states employees are left in a situation in which they cannot return to their former employment, yet at the end of the allowable time their wage benefits are terminated.

Workers' Compensation-Death Benefits

Brien Roche — Mon, 01 Feb 2010 12:35:08 -0500

In the event that an employee is killed on the job, the family of that employee is entitled to death benefits. Those death benefits are wage benefits that will, at least in part, replace the loss of income as a result of the death of the employee.

Workers' Compensation-Benefits

Brien Roche — Fri, 29 Jan 2010 11:28:24 -0500

Wage benefits are calculated based upon the average weekly wage—the wages of the employee over a period of time are totaled up and then averaged. Once that average has been calculated, the employee is typically entitled to two thirds of that average weekly wage (up to a statutory ceiling).

The second form of benefit received under workers’ compensation is medical coverage. If an employee is injured on the job, he or she is entitled to reasonable and necessary hospital and medical treatment related to that injury to hopefully get him or her back on his or her feet and able to resume his or her employment. If the employee is not able to resume his or her former employment, then he or she may be entitled to rehabilitation services that will either allow him or her to return to some other form of employment or be trained in a new line of work.

A final type of compensation that the employee may be entitled to as a result of an on-the-job injury is compensation for permanent disability. Most workers’ compensation acts have created a schedule in which specific disabilities are worth a certain number of weeks of wages. For instance, a person who loses a foot may be entitled to one hundred and fifty weeks of wages over and above any other benefits that he or she may receive. A person who loses an eye on the job may be entitled to an equivalent amount of compensation. Those forms of compensation are in addition to the wage loss benefits otherwise paid and any medical expenses that have been paid.

Workers' Compensation-Claims

Brien Roche — Thu, 28 Jan 2010 10:21:10 -0500

Workers’ compensation acts around the country are administered by a governmental agency for that jurisdiction. If an employee is injured on the job, he or she must report that injury to his or her employer within a designated period of time and file a written report of that injury. If the employee is forced to lose time from work or requires medical treatment, then he or she may file a claim with the administrative agency that administers workers’ compensation claims for that jurisdiction. Once a claim is filed, the employer can either contest or accept the claim.

If the employer accepts the claim, then the employer is agreeing that the employee was injured on the job, that the injury arose out of the employment, and that the employee is entitled to medical coverage and perhaps to wage benefits for the time disabled. If the employer decides to challenge the claim, there will be a hearing before an administrative law judge or a hearing officer who will then make a decision whether the claim is compensable and whether the employee should be paid wage benefits and/or medical benefits.

There has been a good bit of litigation over the years as to exactly what constitutes being an employee. Typically a person who is an independent contractor will not qualify as an employee under the workers’ compensation act. Likewise, the individual who is the owner of the business may not qualify as an employee unless he or she has expressly chosen to include him- or herself in that definition within the policy of insurance issued.

Workers' Compensation

Brien Roche — Wed, 27 Jan 2010 08:59:41 -0500

Workers’ compensation is a form of insurance coverage that is designed to protect the working person in the event of injury. In a workers’ compensation claim the parties involved are the injured worker, his or her employer, and the employer’s workers’ compensation insurance company. Before the passage of workers’ compensation laws, a worker who was injured on the job was forced to file suit against his or her employer and potentially wait for months or even years before ever receiving any compensation for an injury.

As a result, the worker and his or her family may have had no income for an extended period of time because the worker was injured and unable to work. Further, the worker often was unable to pay for medical treatment. If the worker did eventually recover from the employer in a civil action, that award of money damages frequently came too late for the worker since by that point he or she was destitute and perhaps permanently impaired because of the lack of proper medical treatment.

As such, many states began passing workers’ compensation laws that provided a type of compromise. Under these laws, the worker did not have to prove any fault on the part of the employer when injured, but simply had to prove that he or she was on the job and that the injury arose out of his or her employment. If those two things could be proven, then the worker was entitled to receive a portion of his or her wages for the period of time disabled and further was entitled to appropriate medical treatment related to that injury.

In return for that, the employer received immunity from a civil claim brought by the employee for the injury. That is, the employee could not file a civil action against the employer. The employee’s exclusive remedy is the worker’s compensation benefits.

Every state has its own workers’ compensation law and that law can vary dramatically from state to state. The general thrust, however, of the worker’s compensation system nationwide is as stated.

In addition, there are workers’ compensation acts that operate at the federal level. Individuals employed by the federal government are covered by the Federal Employees Compensation Act. It is a workers’ compensation act that is administered by the U.S. Department of Labor. There is also another federal statute known as the Longshoremen and Harbor Worker’s Act, which technically covers longshoreman and harbor workers but includes private, nonfederal employees who are working on defense installations as well. It also covers private employees working overseas who are covered by the Defense Base Act—a type of workers’ compensation act that incorporates the Longshoremen and Harbor Workers Act.

In most states, an employee’s exclusive remedy is workers’ compensation benefits.

Torts-Wrongful Death Actions

Brien Roche — Tue, 26 Jan 2010 09:00:09 -0500

If the injury suffered results in the death of a person, then that person’s estate may assert a wrongful death claim. A wrongful death claim occurs when the injured party, rather than having simply suffered personal injury, has actually died as a result of the misconduct of the defendant. A wrongful death claim may be based upon a negligence theory, a breach of warranty theory, or an intentional tort theory, such as assault and battery.

Wrongful death claims are a fairly recent phenomenon. Common law did not recognize wrongful death claims, on the theory that once a person had died, there was no amount of money that could compensate for the loss. As such, a person’s claim died with him or her. However, over the years, the state legislatures have come to recognize that even though death may bring an end to the suffering and damages incurred by the decedent, there may be persons left behind who have been damaged and may continue to be damaged in the future as a result of the passing of the decedent.

Every state has its own wrongful death statute that defines exactly what damages are recoverable under the wrongful death act. Typically the damages recoverable are damages consisting of solace and grief experienced by the survivors, loss of earnings suffered by the dependents from the decedent’s subsequent inability to generate income, any medical expenses incurred by the decedent, and funeral expenses.

Torts-Immunities

Brien Roche — Mon, 25 Jan 2010 14:53:38 -0500

Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity, or family immunity. Sovereign immunity is based upon the concept that the king cannot be sued. In the United States that means the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local or state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless it expressly chooses to waive its immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. (This varies from state to state.)

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills a strictly charitable function and does not make any attempt to collect its debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state, the Red Cross may have the defense of charitable immunity to your claim because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity. That is, tort claims may not be asserted against parents or siblings for certain types of behavior.

Torts-Defenses

Brien Roche — Fri, 22 Jan 2010 09:50:21 -0500

There are several affirmative defenses that may be raised in regard to a tort claim. An affirmative defense is a defense that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has set forth a statute of limitations for virtually every type of civil claim, whether it be a tort claim, contract claim, or otherwise. If the claim is not asserted within the time allowed by that statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a lawsuit at the courthouse. Some states require actual service of the suit papers upon the defendant before the statute of limitations runs.

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk arises when the plaintiff understands the nature of the risk involved and voluntarily
assumes that risk.

Example: If you decide to go out to the supermarket during the middle of a very bad ice storm, recognizing that the roads and walkways are not navigable, and while walking from your car to the store, you slip and fall, then you probably have assumed the risk of an injury. You knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

Torts-Comparative and Contributory Negligence

Brien Roche — Wed, 20 Jan 2010 15:11:21 -0500

Different states have different ways of how they deal with negligence claims. Some of them acknowledge the concept of comparative negligence, while other states are known as contributory negligence jurisdictions. In a comparative negligence jurisdiction, the negligence may be compared between the parties. For instance, going back to the red light example, if you happened to be intoxicated and laying in the middle of the intersection when you were struck, then there obviously would be some negligence on your part. The jury would be called upon to compare the different levels of negligence.

In that example, the jury might conclude that the driver was 50% negligent and you were also 50% negligent. If the jury then determined that your total damages were $100,000, you would only receive $50,000, because you were 50% negligent.

In a contributory negligence jurisdiction there is no comparison of negligence. This means that if you were negligent by 1%, and that negligence was a cause of your damage, then your claim is barred and you receive nothing. Contributory negligence is a principle derived from the common law that is still recognized in some states. It is indeed a very harsh principle of law and in many instances is unfair to people who are probably entitled to recover something for their damages, but may not be entitled to 100% compensation.