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                    [post_content] => Look around.  Snow, snow and more snow. Even the casual glance throughout the city and surrounding counties will reveal several snow plows and, as a result, several snow mountains. The plows are driving up and down every street trying to make a way for you to get to and from school, work, and local businesses to keep our local economy afloat.

Snow Plow

As a society, we are thankful for the service they provide and, as a result, we exempt localities from any liability that might arise in the course of the emergency response. Generally, municipal corporations enjoy immunity from civil liability when performing governmental functions, but not when performing proprietary functions.

Stop. I may have just lost you, and you would not be alone. Judge Wetsel said “[w]here currents collide, whether at sea or at law, the main channel is frequently difficult to discern.  Few areas of the law illustrate this potential turbidity than the confluence of the currents of proprietary and governmental functions in negligence actions against municipal corporations.” Smith v. Town of Front Royal, 61 Va. Cir. 5 (2003). This line hits the nail right on the head. Essentially, while there are some bright line rules, there are also some fuzzy gray-area rules. So let me try to explain a couple of these rules.

Maintenance of city streets and sidewalks is a proprietary function (no immunity) except when such maintenance of the city streets and sidewalks is done “for the common good, without the element of corporate benefit or pecuniary profit . . . , ” which makes it a governmental function (immunity). Balk v. City of Hampton, 242 Va. 56, 405 S.E.2d 619 (1991). Our Supreme Court has held that when the two functions collide, the governmental function will prevail. Taylor v. City of Newport News, 214 Va. 9, 197 S.E.2d 209 (1973).

In other words, if the snow plows are working to abate the snow and ice on the ground during the course of its response to that emergency condition created by the weather, then it is a governmental function and the city is immune from liability. But does the emergency response (and thus the governmental function) persist in perpetuity? Not according to Judge Wetsel. If the emergency has ended and normal conditions have resumed, the the duty to maintain streets and sidewalks will revert back to a proprietary function and the locality loses its immunity.

If the city creates a hazard on the street or sidewalk because of its emergency response, then it may be liable if it does not take action not fix the problem it created within a reasonable time period. As long as at the emergency condition no longer exists, then any clean up is proprietary and the city does not enjoy immunity. Then, the difficult task of proving liability, and disproving contributory negligence, begins.

These types of cases are very difficult, fact specific, and time sensitive. If you have been injured by a locality’s snow response, you should contact a personal injury lawyer immediately to discuss your case.
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                    [post_content] => If you were injured in a car wreck and you are seeking treatment for your injuries, we always tell folks to use your health insurance to pay for your medical treatment.  Frequently, though, when your health insurance gets wind that your medical expenses were caused by the negligence of another, your health insurance company will send you a questionnaire asking you for information about your accident, injuries, and whether you are represented by an attorney.

Sthethoscope and medical documents

Your health insurance company does this so that they will know if they are entitled to be reimbursed for the medical expenses they pay on your behalf for accident related treatment. However, not all health insurance policies are entitled to reimbursement in Virginia. In fact, the general rule is exactly the opposite in Virginia for health insurance, with a few exceptions.

If your health insurance is provided through Medicare or Medicaid, both are entitled to reimbursement to some degree from your recovery from the third party tortfeasor. Medicare is considered a “secondary payor” but it will make conditional payments subject to reimbursement. Medicaid is entitled to a statutory lien against any settlement or judgment “to the extent of such legal liability” of the third party tortfeasor. A tortfeasor is the person who committed the tort. A tort is a civil wrong, other than a breach of contract, that gives rise to a lawsuit for damages against another person, like a car wreck. A third party tortfeasor is any individual or entity that is or may be liable to pay for all or part of the expenditures for medical expenses.

This is not as simple as it appears, though, and there has been much litigation on “the extent of legal liability” in Medicaid cases. According to the Supreme Court, only the amount you recover from the third party tortfeasor that represents medical expenses is subject to the lien of the state government. This scenario may seem odd and you may ask why wouldn’t the tortfeasor be liable for all of my medical expenses?

In some states, the law permit partial recovery based on allocation of fault. In Virginia, the law eliminates any recovery if the plaintiff is at fault at all. Additionally, we frequently see clients who have to settle for much less than the case is worth because the insurance policy limits are well below the amount of harms and losses suffered by the plaintiff.

For example, imagine you had $75,000 in medical expenses but only $100,000 in insurance coverage. The driver of the other vehicle is the typical citizen who owes more money on his house, car, and credit cards than he has. We would call that person insolvent and ultimately judgment proof. He is judgment proof because even if you went to court can obtained a judgment for $300,000, you would likely never see more than the $100,000 that he had in insurance coverage. This would essentially force you to settle the claim for the policy limits of $100,000.

Would Medicaid have a lien for the full $75,000 in medical expenses it paid?  The answer is no, because the third party tortfeasor only ended up paying for about 1/3 of the value of your case and thus, only 1/3 of the value of your medical expenses.  So the third party tortfeasor paid $25,000 of your medical expenses and Medicaid’s lien should be limited to that amount.

If your health insurance is an individual plan that you signed up for and you pay for, then you will not have to reimburse your health insurance company for any medical expenses. So even if your health insurance company ask you for information, you will not have to reimburse your medical expense when you settle your claim.

If you policy is provided through your work, that answer might change even though you contribute some to the policy.  If your policy is provided through your employment, the Employee Retirement Income Security Act, a federal statute that preempts state law, allows your health policy to recover the full amount of medical expenses paid as a result of a third party tortfeasor if ,and only if, your policy is self-funded. Self-funded means that the general assets of your employer pays your medical expenses, not an insurance company. If your employer is only responsible for the premium and the insurance company is responsible to pay the medical expenses, then your plan is not self-funded, it is insured.

This is much more complicated a question than it appears on its face because policy documents can be hundreds of pages and you might have to dig deeper to find out if t he plan is truly self-funded. Many plans claim to be self-funded, but, in reality, it is not. If it is, the plan is entitled to reimbursement that is called an equitable lien.  If not, Virginia law prohibits reimbursement.

If you don’t know what type of plan you have, you need to contact a Virginia personal injury lawyer to investigate.  Even if your plan is self-funded, there are some things that a qualified Virginia personal injury lawyer can do now to put you in a better position to negotiate a reduction  later.

If you have questions, email or call us for a free personal injury consultation.
                    [post_title] => How to keep your health insurance from taking your money
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                    [post_content] => Our worst fear is that someone will injure our children. As parents, we will give anything or do anything to protect them. We live to serve our children. We drive them to and fro for activities that will make them smarter, socially well-adjusted, and well rounded individuals. We do all this to ultimately enhance their lives.

happy family sitting in the car

As a good parent, you always drive safely. You stop at stop signs and red lights, yield to oncoming traffic, and drive the speed limit. But the reality is that your safety on the road is contingent upon another person following the same rules of the road. So you are constantly on the lookout for folks who make a conscious or subconscious decision to violate those rules. When someone violates the rules and causes a wreck with your children in the car, your children are your first priority.

If your child is injured in a car wreck, his or her claim is a little different from your claim. Here are some examples of how the claim is handled differently:

First, the general statute of limitations is two years from the date the cause of action accrues. That is the date of the accident in car wreck cases, but it could be another date in other types of cases. But for children, the Virginia Code delays the beginning of the statute of limitations for persons who are under the age of eighteen until the day they turn eighteen. That means, the two year statute of limitations begins on your child’s eighteenth birthday, giving your child a significant amount of extra time to heal prior to having to file suit.

Second, if the insurance company agrees to settle your child’s bodily injury claim, the insurance company will likely require that the settlement be approved by a Judge to make sure that the contract cannot be voided. A person under the age of eighteen who enters into a contract, for whatever reason, has the right to void the contract when he or she turns eighteen. Lawyers call this a voidable contract. It is essentially unenforceable by the insurance company; and the child, when he or she turns eighteen, can still sue for damages after he or she has already received compensation. If the judge approves the settlement, then it becomes final once and for all and the insurance company is forever released.

Third, the court usually requires that the money be paid into the general receiver to be held in trust for the child until the child turns eighteen. This money does not belong to the parents, but rather, it belongs to the child. Parents have a right to recover medical expenses that they incur on behalf of the child as a result of the wreck, but the pain and suffering, inconvenience, etc. belongs solely to the child. In very rare circumstances will the court allow the money to be paid directly to the child or a parent of the child.  You should talk about this with your personal injury lawyer for more information.

These are just a few examples of how your child’s claim is different than yours. The same rules apply to children as they do to adults when it comes to the types of things you should do if you are injured in a car wreck. I’ve blogged about those things here and here and you can review them at your convenience.

If you have any questions about your child’s personal injury case, feel free to contact us for a free personal injury consultation.

Posted by Brandon S. Osterbind, Esq.
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                    [post_content] => Do you remember Regis Philbin’s famous question from the TV show Who Wants To Be A Millionaire? You remember, right? The game show from the late 90's and early 2000's where a contestant was challenged to  select one of four potential answers to questions that get progressively more difficult to answer as the stakes correspondingly escalate all in an effort to win one million dollars.

business man writing trust building concept

Prior to answering a question worth significant amounts of money, the contestant had three opportunities to use a lifeline. I always found the phone a friend option particularly interesting. Almost every time a contestant phoned a friend, the friend’s answer was the answer given. I was always shocked at how some people would trust that friend’s intelligence. The contestant picked that friend prior to the show for that 30 seconds spot where the friend would answer a potentially million dollar question. During that 30 seconds, it was pivotal that the friend is not only a good friend, but also a trusted advisor.

After the contestant picks an answer, Regis would always ask the contestant, “Is that your final answer?” Sometimes the answer would be right and sometimes the answer would be wrong, but either way, the answer was final.

It is just as important to pick the right lawyer. Your lawyer is your trusted advisor. He or she should be helping you along the way to make informed decisions. This is likely your one and only personal injury case in your life. This is your one opportunity to phone a friend. Hopefully, you’ve chosen a lawyer who practices personal injury law so frequently that he or she knows how to work up and value your case. And when the time comes for you to phone a friend, you will know that you are making the best decision possible because you trust 100% that you picked the smartest, most skilled friend to help you make good decisions.

Your lawyer is there to help you make good decisions. Of course, you can disregard your lawyers advice and pick a different answer, if you wish. You may be right or you may be wrong. Either way, settlement of your personal injury case is final. You cannot have a do over and you can never recover a dime more for your injuries. Once you accept that check and sign that release, then you are forever precluded from revisiting that cause of action. Make sure that you chose a lawyer that specializes in personal injury cases.

Is that your final answer?

Posted by Brandon S. Osterbind, Esq.
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                    [post_content] => After you’ve been injured in a car wreck and you have scheduled your free consultation with a reputable law firm, it is time to gather your records. Get your things together so that you will be prepared to give all of the necessary information to the attorney who is evaluating your case.

The insurance section of a collision report.

Here is a simple list of the top four things you need to bring with you to your free personal injury consultation.

Exchange of Information Form

After every accident, you should call the police so that a report can be made detailing what happened, who was involved, and who, if anyone, will be charged. The Officer or Trooper investigating the case will not give you a copy of the police report on the scene, but he or she will give you small piece of paper with all of the necessary information about the person that hit you. Bring this with you. This small piece of paper has several things that your attorney will need. For example, name, address, and insurance company of the Defendant. This information will be essential to getting all of the right people involved in your claim.

Discharge Summary from the hospital

If you are injured and you go to the hospital, they will either admit you for treatment, or check you over and discharge you. When they discharge you, they always give you a discharge summary detailing your diagnoses, your treatment, your follow up recommendations and symptoms to look for in the future related to you injuries. Bring this paper with you. It gives your attorney a quick look into the type of injuries you have sustained. If you have received additional treatment since your visit to the emergency room, bring whatever treatment records you have so that your attorney can accurately assess your case.

Your Insurance Policy

Sometimes, the people who cause wrecks do not have insurance. If that is the case, your attorney may advise you to make a claim against your own insurance company’s uninsured motorist coverage or under-insured motorist coverage. Additionally, you may have med pay insurance which will pay for your medical bills up to a certain amount. Your attorney will need that information in order to make such claims.

Pictures of your car and any other cars involved in the wreck.

Pictures can tell a thousand words. Often, I have heard insurance adjusters say, "Well, there was only $600 of damage to the vehicle so it was just a minor impact." Pictures often tell a different story. If you have pictures of your car, bring them.  If you have pictures of the other cars, bring them. Sometimes, the damage to your car may be minimal, but the damage to the other car may be much more. Again, pictures tell a thousand words. Bring them to your attorney, so he or she can get the whole picture (pun intended). I hope this helps you prepare for your first meeting with your personal injury attorney. Posted by Brandon S. Osterbind, Esq. [post_title] => Four Things to Bring With You For Your First Personal Injury Consultation [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => four-things-to-bring-with-you-for-your-first-personal-injury-consultation [to_ping] => [pinged] => [post_modified] => 2016-01-21 14:22:35 [post_modified_gmt] => 2016-01-21 14:22:35 [post_content_filtered] => [post_parent] => 0 [guid] => http://overbeylaw.com/?post_type=news&p=294 [menu_order] => 0 [post_type] => news [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post_count] => 5 [current_post] => -1 [in_the_loop] => [post] => WP_Post Object ( [ID] => 825 [post_author] => 4 [post_date] => 2015-02-20 21:50:14 [post_date_gmt] => 2015-02-20 21:50:14 [post_content] => Look around.  Snow, snow and more snow. Even the casual glance throughout the city and surrounding counties will reveal several snow plows and, as a result, several snow mountains. The plows are driving up and down every street trying to make a way for you to get to and from school, work, and local businesses to keep our local economy afloat. Snow Plow As a society, we are thankful for the service they provide and, as a result, we exempt localities from any liability that might arise in the course of the emergency response. Generally, municipal corporations enjoy immunity from civil liability when performing governmental functions, but not when performing proprietary functions. Stop. I may have just lost you, and you would not be alone. Judge Wetsel said “[w]here currents collide, whether at sea or at law, the main channel is frequently difficult to discern.  Few areas of the law illustrate this potential turbidity than the confluence of the currents of proprietary and governmental functions in negligence actions against municipal corporations.” Smith v. Town of Front Royal, 61 Va. Cir. 5 (2003). This line hits the nail right on the head. Essentially, while there are some bright line rules, there are also some fuzzy gray-area rules. So let me try to explain a couple of these rules. Maintenance of city streets and sidewalks is a proprietary function (no immunity) except when such maintenance of the city streets and sidewalks is done “for the common good, without the element of corporate benefit or pecuniary profit . . . , ” which makes it a governmental function (immunity). Balk v. City of Hampton, 242 Va. 56, 405 S.E.2d 619 (1991). Our Supreme Court has held that when the two functions collide, the governmental function will prevail. Taylor v. City of Newport News, 214 Va. 9, 197 S.E.2d 209 (1973). In other words, if the snow plows are working to abate the snow and ice on the ground during the course of its response to that emergency condition created by the weather, then it is a governmental function and the city is immune from liability. But does the emergency response (and thus the governmental function) persist in perpetuity? Not according to Judge Wetsel. If the emergency has ended and normal conditions have resumed, the the duty to maintain streets and sidewalks will revert back to a proprietary function and the locality loses its immunity. If the city creates a hazard on the street or sidewalk because of its emergency response, then it may be liable if it does not take action not fix the problem it created within a reasonable time period. As long as at the emergency condition no longer exists, then any clean up is proprietary and the city does not enjoy immunity. Then, the difficult task of proving liability, and disproving contributory negligence, begins. These types of cases are very difficult, fact specific, and time sensitive. If you have been injured by a locality’s snow response, you should contact a personal injury lawyer immediately to discuss your case. [post_title] => Are City Snow Plows Immune From Negligence Liability? 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Friday, February 20, 2015

Are City Snow Plows Immune From Negligence Liability?

The doctrine of sovereign immunity protects municipalities

Look around.  Snow, snow and more snow. Even the casual glance throughout the city and surrounding counties will reveal several snow plows and, as a result, several snow mountains. The plows are driving up and down every street trying to make a way for you to get to and from school, work, and local businesses to keep our local economy afloat.

As a society, we are thankful for the service they provide and, as a result, we exempt localities from any liability that might arise in the course of the emergency response. Generally, municipal corporations enjoy immunity from civil liability when performing governmental functions, but not when performing proprietary functions.

Category: Personal Injury
Continue Reading >
Friday, February 13, 2015

How to keep your health insurance from taking your money

The general rule is your health insurance is not entitled to reimbursement

If you were injured in a car wreck and you are seeking treatment for your injuries, we always tell folks to use your health insurance to pay for your medical treatment. But what happens if your health insurance wants to be reimbursed by you?

Frequently, though, when your health insurance gets wind that your medical expenses were caused by the negligence of another, your health insurance company will send you a questionnaire asking you for information about your accident, injuries, and whether you are represented by an attorney.

Category: Personal Injury
Continue Reading >
Monday, February 2, 2015

What if my child was hurt in a car wreck?

When fear and anxiety overwhelm, take comfort in knowing the process

Our worst fear is that someone will injure our children. As parents, we will give anything or do anything to protect them. We live to serve our children. We drive them to and fro for activities that will make them smarter, socially well-adjusted, and well rounded individuals. We do all this to ultimately enhance their lives.

As a good parent, you always drive safely. You stop at stop signs and red lights, yield to oncoming traffic, and drive the speed limit. But the reality is that your safety on the road is contingent upon another person following the same rules of the road. So you are constantly on the lookout for folks who make a conscious or subconscious decision to violate those rules. When someone violates the rules and causes a wreck with your children in the car, your children are your first priority.

Category: Personal Injury
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Tuesday, January 13, 2015

Is That Your Final Answer?

You might consider phoning a friend, or a lawyer.

Do you remember Regis Philbin’s famous question from the TV show Who Wants To Be A Millionaire? You remember, right? The game show from the late 90’s and early 2000’s where a contestant was challenged to  select one of four potential answers to questions that get progressively difficult to answer as the stakes correspondingly escalate all in an effort to win one million dollars.

Prior to answering a question worth significant amounts of money, the contestant had three opportunities to use a lifeline. I always found the phone a friend option particularly interesting. Almost every time a contestant phoned a friend, the friend’s answer was the answer given. I was always shocked at how some people would trust that friend’s intelligence. The contestant picked that friend prior to the show for that 30 seconds spot where the friend would answer a potentially million dollar question. During that 30 seconds, it was pivotal that the friend is not only a good friend, but also a trusted advisor.

Category: Personal Injury
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Thursday, December 11, 2014

Four Things to Bring With You For Your First Personal Injury Consultation

Come Prepared. Leave Equipped.

After you’ve been injured in a car wreck and you have scheduled your free consultation with a reputable law firm, it is time to gather your records. Get your things together so that you will be prepared to give all of the necessary information to the attorney who is evaluating your case.

Here is a simple list of the top four things you need to bring with you to your free personal injury consultation.

Category: Personal Injury
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