Insurance coverage, Insurance Coverage, Insurance Coverage. In both Virginia and North Carolina, and really in almost any state, as with any damage claim, the first and most important item that has to be looked at and examined are the limits of available insurance. Tragically, in motor vehicle accidents in particular, one often comes across situations where the only insurance that is available on the minimum limits of coverage. In Virginia, the minimum limits of coverage are $25,000.00. In North Carolina, the minimum limits of coverage are currently $30,000.00.
In such a situation, one may ask, well what about the lawsuit against the person? This is a common misconception. In any case where you want to obtain insurance coverage, the case cannot be settled, in order to obtain that coverage, the individual person must be sued. We generally do not sue the insurance company, unless there is a question regarding whether the person is covered by the policy or not. Unfortunately, the reality is that when there are minimum limits involved, there is usually a financial reason why the person who has minimum limits is unable to afford more. In most cases, when we are talking about a minimum limits case, it would therefore make little sense to attempt to pursue the assets of a person with minimum coverage. Such assets likely do not exist, and if they do exist, they are usually so small that they do not justify the cost of going to Court to obtain a verdict that can never be collected.
In vehicle fatalities, we must also often look at the uninsured or underinsured motorist coverage that covered the person at the time of their death. In Virginia, and in some situations in North Carolina, there may be multiple coverages that can be stacked to obtain a higher recovery. For instance, if, at the time of the collision in an automobile case, the deceased lived with a number of blood relatives who all had separate policies on their vehicles, many of those policies may be stacked to provide more coverage. An attorney should actually be consulted in any such situation to ensure that the estate obtains the maximum recovery under the law.
Liability. The next most important question to ask is with respect to liability. Unfortunately, both North Carolina and Virginia are contributory negligence States. That means that in order to recover, the decedent, or those beneficiaries responsible for his or her safety, must be completely free of any fault which contributed to the death of the decedent. We see this often with respect to ‘dart out’ cases, where a child ran out into traffic and was killed. In North Carolina, if that child was under the age of 7, he or she cannot be negligent, so it is not going to be a factor; however, between the ages of 7 and 14 is known as a ‘gray area.’ At that point, although there is only a presumption that the child cannot be negligent, but that presumption can be overcome. The jury is entitled to weigh that particular child’s appreciation of the danger of what he or she was doing and decide if the presumption is overcome. After age 14, such a child would likely be barred from recovery as a matter of law.
Witnesses are often crucial in close liability cases, because tragically, the deceased is no longer here to tell us what happened.
Expenses that must be paid out of the Estate. In addition to the coverage, the third most important question to ask is what are the medical expenses? It is not unusual in wrongful death cases for medical expenses exceed $200,000 .00. Even if the attempts to save the decedent’s life only lasted for one day, the amount of medical personnel involved, and the tests, scans, and medications administered by the hospital staff, not to mention a helicopter evacuation can easily add up and even exceed such amounts.
The good news is that in North Carolina, the total amount that all healthcare providers can recover collectively from the estate of the deceased in a wrongful death claim is $4500 .00. That means that even if there are only minimum limits, there’s a good chance that there will be at least some recovery for the beneficiary or beneficiaries who remain, even if the medical bills are immense.
Unfortunately, Virginia has no such statute; however, our office has often been successful in negotiating with healthcare providers to drastically reduce their claims on the estate, particularly if the recovery is limited by the lack of sufficient insurance proceeds.
Coverage not an issue. If the wrongful death occurs as result of the negligence of someone employed by corporation, such as a truck driver, lifeguard, pizza delivery driver, doctor or staff at a nursing home, or store employee, then there is likely to be a commercial policy in place with limits at or in excess of $1 million.
At that point, we truly begin to look at the respective statute which governs the award of damages in either Virginia or North Carolina, as the case may be.
Really, the number one factor is almost always the relationships between the beneficiaries and the deceased. In other words, who was the deceased to each of the beneficiaries? If he was a parent, what kind of father was he? Was he there for his children, was he there for his wife? Were the relationships strong, or were they strained at the time of the deceased’s death? These items can really make an impact on a jury when they evaluate what they are going to give the beneficiaries in terms of damages.
Next, if we are talking about a parent/spouse, we will usually look at what kind of earnings they were bringing in while they were alive, and therefore, how much they could have been expected to bring in into the future. And there are other items as well, besides just their earnings on their paycheck. For instance, if it was a spouse, did they do housework? Did they do yardwork? Did they straighten up around the house on a frequent basis? Did they do the family bookkeeping? Each of those things has a past and future value that is now lost forever. It usually falls to an economist who is typically hired by your attorney to bring all those items into focus for the Jury.
Punitive damages. This comes up most often in drunk driving cases. In Virginia, if the defendant was found to have a BAC of over .15 at the time of the collision, then the estate of the deceased will be entitled to pursue a claim for punitive damages. In North Carolina, it must merely exceed the legal limit of .08, but there must also be evidence of intoxication in order to pursue punitive damages. In cases where insurance limits are less of a factor, evidence of intoxication can add enormous value to the already tragic case of the death of a loved one. Juries are mad as heck at drunk drivers and will show it in their verdict. It is your attorney’s job to convey to the jury that they must send a message with their verdict that drunk driving is unacceptable in their community.