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                    [post_content] => If you have been injured in a car accident, then it is likely you have had several unpleasant conversations with an insurance adjuster for the person who hit you.  You may remember that I posted here about these types of conversations.

Worried Senior Hispanic Woman Checking Mailbox

After you have hired your lawyer, I have said before that you will not hear from the adjuster again.  You can read about that here. Indeed, it is one of the benefits to hiring a lawyer sooner rather than later. But that is not 100% true.  In fact, there is potentially one other time when you will receive a letter directly from the insurance adjuster, right after your case settles.

The General Assembly enacted Code § 38.2-236 which requires upon payment by any insurer of at least $5,000.00 in a single check to a Virginia attorney, the insurance company must send you a notice of such payment.  The notice must have the following language which is quoted from the statute:

"Pursuant to § 38.2-236 of the Code of Virginia, you are hereby notified that a payment was sent on (insert date on which payment was sent) by (insert name of insurer) to your attorney or other representative (insert name, address, and telephone number of attorney or other representative known to insurer), in satisfaction of your claim or judgment against (insert name of insurer, or insured, whichever is appropriate). If you have any questions, please contact your attorney or other representative."

In our experience, since this statute went into effect, the insurance company will send this notice to you immediately upon issuing the check. Once the letter arrives clients often ask if that means that they can stop by and pick up the check.  The answer is generally no and this results in confusion. This is not unusual.  In fact, you may have received the notice before your attorney received the check, especially in cases that are in active litigation. In those cases, the insurance company will send the check to their attorney who will draft a release and dismissal order and send all three to your attorney at the same time. The statute, however, requires that the insurance company send you the notice directly “upon payment.” To be safe, the insurance company will interpret that to mean, when I cut the check, payment is made.

Once your attorney receives the check, it has to be deposited into a trust account and it has to clear the bank; then you have to sign a release and send it back to the insurance company.  This usually takes about a week.

This notice is designed to protect those who have been injured and that is a good thing. Make sure that you openly communicate your expectations to your lawyer, and ask him or her to explain the intricacies of settling a personal injury case.  This will benefit you as you navigate this new experience.

Posted by Brandon S. Osterbind, Esq.
                    [post_title] => The Insurance Adjuster Said… (A Continuing Series)
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                    [post_content] => What if you stop and help someone in trouble, simply trying to be a Good Samaritan. (See Luke 10:30-36). Could you be held liable for any injuries that the person you are trying to help might receive in the course of your assistance?  The answer—as unsatisfying as it may be—is, it depends.

Business Man Life Guard

At first, it might seem odd that you could be held financially responsible to another person when all you are trying to do is help them. While you may have a moral duty to help or rescue another, legally, you have no duty to rescue another person. The rationale is simple, you should not be legally required to rescue a drowning person if you cannot swim. You will likely cause more harm than good. If you choose, however, to give such assistance, you may have unwittingly assumed a legal duty.

The common law rule is that “one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.” Creasy v. United States,645 F. Supp. 853, 855 (W.D. Va. 1986) (quoting Neal v. Bergland, 646 F.2d 1178, 1181-82 (1981)). A good Samaritan is only liable to the extent that he or she fails to use due care. This is called negligence. It can be broken down into four elements: (1) duty to exercise reasonable care, (2) breach of that duty, (3) that breach proximately caused (4) damages. This is not a mechanical calculation, though, and whether the good Samaritan acted like a reasonably prudent person under the circumstances is a very difficult question to resolve.

If you are a good Samaritan, do not fear. Even though the Virginia law on the common law Good Samaritan Rule is scarce, the General Assembly has enacted a statute that presupposes that the Rule applies in Virginia. This also seems apparent from Code § 1-200.

Nonetheless, Virginia has adopted what is commonly referred to as the Good Samaritan Statute to encourage Virginians to help each other. Code § 8.01-225. There, the Virginia General Assembly created a long list of immunities against liability under the Good Samaritan Rule.

For example if you, in good faith, give “emergency medical care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office,” you will qualify for one circumstance exempting you from civil damages for injuries resulting from your assistance.

This particular immunity is just one of many listed here. Review this list and keep in mind those situations that you might encounter in life.

To be sure that I am not misunderstood, none of this is to say that you should refrain from rendering assistance, being a good Samaritan and giving help to those in need. Indeed, the story of the Good Samaritan in Luke 10 ends with Jesus’ instruction to “go and do the same.” However, this is to say that you should assume such duty with open eyes and you should exercise due care in helping others. I’d say that there is no better way to "love you neighbor as yourself" than to give help and exercise reasonable care. That is truly a good Samaritan.

If you only undertake to help, without good faith and without exercising reasonable care, then you will be despised and liable for any injuries your negligence may cause.

Posted by Brandon S. Osterbind, Esq.
                    [post_title] => When The Good Samaritan is The Despised Samaritan
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                    [post_content] => After your lawyer files suit, you will go through several stages of a process called discovery. Most people do not know what that means or what it looks like, so I will give you a snapshot here.

Discovery picture

Written Discovery: Interrogatories, Request for Production of Documents and Things, and Request for Admission.

Initially, after suit has been filed, your lawyer will send the other side a series of questions that the Defendant has to answer in writing, under oath. Those questions are called Interrogatories. Interrogatories are limited to 30 in number unless there is a good reason for why you need more and then the judge has to approve it first. At the same time, your lawyer will send Request for Production of Documents to the Defendant, or his attorney. This is a formal request for the other side to produce documentation that they will use to combat the lawsuit. And lastly, Request for Admissions are usually done after all the written discovery and depositions described below are completed. In this process, your lawyer can ask the other side to admit certain things to conclusively establish facts prior to trial. This usually streamlines the trial and highlights the areas of disagreement for the court and the jury.  It can also serve as a basis for a motion for summary judgment.

Party Depositions.

In every case, the other side’s lawyer gets to sit down across the table from you and ask you questions about your case. These questions could be questions about the car wreck, about your prior medical history, or about your current injuries, treatment, or prognosis. This is usually pretty informal and most attorneys are just interested in obtaining information directly from you. Your lawyer will set next to you the whole time and object to anything that might be objectionable. At the same time, your lawyer will likely depose the defendant and ask questions about the wreck to establish his or her negligence, recklessness, etc.

Other Depositions.

If there are witnesses to the car wreck or other witnesses, including doctors, that might testify at the trial, they can be deposed too. The deposition puts the witness on the record stating what his or her testimony might be. If the witness testifies differently at trial, the lawyer can pull out the deposition and show the jury or the judge that the person either lied in court or lied in his or her deposition.

Defense Medical Examination (DME)

The Defense attorney is entitled to hire a doctor to examine you if your injuries are still persisting and those injuries are observable. That doctor is then required to write a report with his or her findings and that report must be filed with the court. The Defense attorneys usually call this an independent medical examination, but there is nothing independent about it. The doctor is hired by the Defense attorney and paid by the insurance company. That bias usually comes out during the doctors deposition. Alternatively, the Defense attorney may hire a doctor just to review your medical records and give an opinion. That type of “record review” is not the same as a DME. The same bias applies and the doctor never sees you in person, which limits his or her ability to truly and honestly evaluate your injuries and treatment. After all of this is complete, your case is typically ready for trial.  Your lawyer will likely set the trial date somewhere in the middle of this process.  This trial date gives you and your lawyers a date to work towards. I hope this helps to shed some light on the process that we call discovery. Please note that this is a general overview, or a snapshot, if you will, of a very long and complicated process. Every case is different so some of these tools may not be used in your case. As a personal injury law firm, we do these things on a daily basis and we can help you navigate this complicated process.  Contact us for a free personal injury consultation and we will walk with you through this difficult time. Posted by Brandon S. Osterbind, Esq. [post_title] => Four Stages of Discovery in a Typical Personal Injury Case [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => four-stages-of-discovery-in-a-typical-personal-injury-case [to_ping] => [pinged] => [post_modified] => 2016-01-21 15:23:50 [post_modified_gmt] => 2016-01-21 15:23:50 [post_content_filtered] => [post_parent] => 0 [guid] => http://overbeylaw.com/?post_type=news&p=295 [menu_order] => 0 [post_type] => news [post_mime_type] => [comment_count] => 0 [filter] => raw ) [3] => WP_Post Object ( [ID] => 287 [post_author] => 1 [post_date] => 2014-09-30 21:27:52 [post_date_gmt] => 2014-09-30 21:27:52 [post_content] => Car wrecks account for 17.3% of all traumatic brain injuries (TBI) which is second only to falls.  Additionally, car wrecks are the leading cause of TBI related deaths. Brain aging and memory loss due to Dementia and Alzheimer's disease with the medical icon of a group of color changing autumn fall trees in the shape of a human head losing leaves as a loss of thoughts and intelligence function. It can be difficult to identify a traumatic brain injury after a car wreck.  If you are suffering from a TBI, then you will likely have difficulty identifying the symptoms and realizing that you need medical attention.   You should rely on your family and close friends to help you identify the symptoms of TBI such as:
  • Headache
  • Fatigue
  • Sleep Disturbance
  • Memory Problems
  • Balance Problems
  • Concentration Problems
  • Irritability
If you are suffering any of these symptoms, you should seek medical attention right away for a possible TBI. Sometimes your TBI can be treated and, with help, you can manage your symptoms. Other times, the injury may be permanent. You should be compensated fairly for such serious harms and losses. These cases are very delicate and you should call an attorney with experience handling traumatic brain injuries to discuss your next steps. Posted by Brandon S. Osterbind, Esq. [post_title] => How to Identify a Traumatic Brain Injury [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-to-identify-a-traumatic-brain-injury [to_ping] => [pinged] => [post_modified] => 2016-01-21 15:25:54 [post_modified_gmt] => 2016-01-21 15:25:54 [post_content_filtered] => [post_parent] => 0 [guid] => http://overbeylaw.com/?post_type=news&p=287 [menu_order] => 0 [post_type] => news [post_mime_type] => [comment_count] => 0 [filter] => raw ) [4] => WP_Post Object ( [ID] => 113 [post_author] => 1 [post_date] => 2014-09-12 14:05:54 [post_date_gmt] => 2014-09-12 14:05:54 [post_content] => There are many things that you can and should do if you have been injured in a car wreck and you can read or watch a video about them here. But most folks do not realize that there are also certain things that may kill your personal injury case and your lawyers ability to recover what your injury is worth. Know the Rules So here is a list of the most common problems we face in working up personal injury cases:

1. Understating your injuries.

Many times, people don’t want to think that they have been injured so they say that they are fine in an optimistic effort to avoid falling into a litigation-hungry stereotype perpetuated by corporate America. Most, if not all, of our clients are not litigation hungry. In fact, they are litigation averse. They do not want to sue another person or even an insurance company, but find themselves in a situation where they are left with no choice. If you are injured, follow our advice here.

2. Failure to seek treatment and/or gaps in treatment.

Money is usually a problem when it comes to seeking treatment. Without health insurance, Medicare or Medicaid, most people cannot afford to seek medical treatment. The insurance company and the jury for that matter, will interpret your failure to seek medical attention as a red flag that you are not injured and not in pain. People who are in pain seek medical attention. If you were injured in a car wreck, you need to seek medical attention for your injury. Don’t ignore the pain thinking it will go away. It might go away, it might not go away. Depend on your doctor's expertise in making these decisions. Don’t go to a doctor just to help your case, go to a doctor to get better. One quick and easy fix is to increase your medical expense payments on your auto insurance policy. You will pay an additional premium for this benefit but the cost is minimal. Call your insurance company today and increase your med pay benefits to at least $20,000.00.

3. Failure to follow doctors orders.

If your doctor refers you to a specialist, go and see the specialist. If your doctor refers you to physical therapy, go to every physical therapy appointment until your therapist releases you. If your doctor or physical therapists sends you home with a home exercise program, do every exercise as instructed every day. If you doctor says your only option is surgery or live in pain for the rest of your life, get the recommended surgery. Your doctors are experts in their fields, trust them to develop a plan that will heal your injuries and increase the quality of your life. Do what they say and your chances of physically recovering from your injuries are good. That is the most important thing you can do.

4. Waiting till the last minute to hire a lawyer.

Preparing to file suit takes time. Your lawyer needs to know how much to sue for, in what court, etc.  To do that, your lawyer needs to review all of your medical records and any records relating to prior injuries to the injured part of your body. I takes weeks to get medical records from your doctors and it takes more time to organize them in such a way to review them to determine the extent of your injuries. You have two years to file suit or you are forever barred from recovering anything. Don’t wait until a month before the two years is up to hire a lawyer. If you wait too long, there might not be a lawyer out there willing to take your case. Don't make these Mistakes I hope this post helps you make good decisions about your body, your health and your recovery from your collision related injuries. If you find yourself in one of these positions, we provide free consultations for personal injury cases and we are here to serve you. We will tell you what you should do in your circumstances and help you recover.  Visit our frequently asked questions page to learn more. [post_title] => Four Mistakes That Will Kill Your Personal Injury Case [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => four-mistakes-to-kill-your-personal-injury-case [to_ping] => [pinged] => [post_modified] => 2016-01-23 15:44:10 [post_modified_gmt] => 2016-01-23 15:44:10 [post_content_filtered] => [post_parent] => 0 [guid] => http://overbeylaw.com/?post_type=news&p=113 [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] => 280 [post_author] => 1 [post_date] => 2014-12-04 21:17:04 [post_date_gmt] => 2014-12-04 21:17:04 [post_content] => If you have been injured in a car accident, then it is likely you have had several unpleasant conversations with an insurance adjuster for the person who hit you.  You may remember that I posted here about these types of conversations. Worried Senior Hispanic Woman Checking Mailbox After you have hired your lawyer, I have said before that you will not hear from the adjuster again.  You can read about that here. Indeed, it is one of the benefits to hiring a lawyer sooner rather than later. But that is not 100% true.  In fact, there is potentially one other time when you will receive a letter directly from the insurance adjuster, right after your case settles. The General Assembly enacted Code § 38.2-236 which requires upon payment by any insurer of at least $5,000.00 in a single check to a Virginia attorney, the insurance company must send you a notice of such payment.  The notice must have the following language which is quoted from the statute: "Pursuant to § 38.2-236 of the Code of Virginia, you are hereby notified that a payment was sent on (insert date on which payment was sent) by (insert name of insurer) to your attorney or other representative (insert name, address, and telephone number of attorney or other representative known to insurer), in satisfaction of your claim or judgment against (insert name of insurer, or insured, whichever is appropriate). If you have any questions, please contact your attorney or other representative." In our experience, since this statute went into effect, the insurance company will send this notice to you immediately upon issuing the check. Once the letter arrives clients often ask if that means that they can stop by and pick up the check.  The answer is generally no and this results in confusion. This is not unusual.  In fact, you may have received the notice before your attorney received the check, especially in cases that are in active litigation. In those cases, the insurance company will send the check to their attorney who will draft a release and dismissal order and send all three to your attorney at the same time. The statute, however, requires that the insurance company send you the notice directly “upon payment.” To be safe, the insurance company will interpret that to mean, when I cut the check, payment is made. Once your attorney receives the check, it has to be deposited into a trust account and it has to clear the bank; then you have to sign a release and send it back to the insurance company.  This usually takes about a week. This notice is designed to protect those who have been injured and that is a good thing. Make sure that you openly communicate your expectations to your lawyer, and ask him or her to explain the intricacies of settling a personal injury case.  This will benefit you as you navigate this new experience. Posted by Brandon S. Osterbind, Esq. [post_title] => The Insurance Adjuster Said… (A Continuing Series) [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => the-insurance-adjuster-said-a-continuing-series [to_ping] => [pinged] => [post_modified] => 2016-07-12 21:04:23 [post_modified_gmt] => 2016-07-12 21:04:23 [post_content_filtered] => [post_parent] => 0 [guid] => http://overbeylaw.com/?post_type=news&p=280 [menu_order] => 0 [post_type] => news [post_mime_type] => [comment_count] => 0 [filter] => raw ) [comment_count] => 0 [current_comment] => -1 [found_posts] => 34 [max_num_pages] => 7 [max_num_comment_pages] => 0 [is_single] => [is_preview] => [is_page] => [is_archive] => 1 [is_date] => [is_year] => [is_month] => [is_day] => [is_time] => [is_author] => [is_category] => [is_tag] => [is_tax] => [is_search] => [is_feed] => [is_comment_feed] => [is_trackback] => [is_home] => [is_404] => [is_embed] => [is_paged] => 1 [is_admin] => [is_attachment] => [is_singular] => [is_robots] => [is_posts_page] => [is_post_type_archive] => 1 [query_vars_hash:WP_Query:private] => 1869cdfb86d3d8ccf5491c9e7861c9e7 [query_vars_changed:WP_Query:private] => [thumbnails_cached] => [stopwords:WP_Query:private] => [compat_fields:WP_Query:private] => Array ( [0] => query_vars_hash [1] => query_vars_changed ) [compat_methods:WP_Query:private] => Array ( [0] => init_query_flags [1] => parse_tax_query ) )
Thursday, December 4, 2014

The Insurance Adjuster Said… (A Continuing Series)

You will receive notice that the insurance company has issued your check

If you have been injured in a car accident, then it is likely you have had several unpleasant conversations with an insurance adjuster for the person who hit you.  You may remember that I posted here about these types of conversations.

After you have hired your lawyer, I have said before that you will not hear from the adjuster again.  You can read about that here. Indeed, it is one of the benefits to hiring a lawyer sooner rather than later. But that is not 100% true.  In fact, there is potentially one other time when you will receive a letter directly from the insurance adjuster, right after your case settles.

Category: Personal Injury
Continue Reading >
Tuesday, October 21, 2014

When The Good Samaritan is The Despised Samaritan

If you can help, then help. But consider the consequences.

What if you stop and help someone in trouble, simply trying to be a Good Samaritan. (See Luke 10:30-36) Could you be held liable for any injuries that the person you are trying to help might receive in the course of your assistance?  The answer—as unsatisfying as it may be—is, it depends.

At first, it might seem odd that you could be held financially responsible to another person when all you are trying to do is help them. While you may have a moral duty to help or rescue another, legally, you have no duty to rescue another person. The rationale is simple, you should not be legally required to rescue a drowning person if you cannot swim. You will likely cause more harm than good. If you choose, however, to give such assistance, you may have unwittingly assumed a legal duty.

Category: Personal Injury
Continue Reading >
Thursday, October 2, 2014

Four Stages of Discovery in a Typical Personal Injury Case

Shedding Light On The Discovery Process

After your lawyer files suit, you will go through several stages of a process called discovery. Most people do not know what that means or what it looks like, so I will give you a snapshot here.

Written Discovery: Interrogatories, Request for Production of Documents and Things, and Request for Admission.

Initially, after suit has been filed, your lawyer will send the other side a series of questions that the Defendant has to answer in writing, under oath. Those questions are called Interrogatories. Interrogatories are limited to 30 in number unless there is a good reason for why you need more and then the judge has to approve it first.

Category: Personal Injury
Continue Reading >
Tuesday, September 30, 2014

How to Identify a Traumatic Brain Injury

Car wrecks account for 17.3% of all traumatic brain injuries (TBI) which is second only to falls.  Additionally, car wrecks are the leading cause of TBI related deaths.

It can be difficult to identify a traumatic brain injury after a car wreck. If you are suffering from a TBI, then you will likely have difficulty identifying the symptoms and realizing that you need medical attention.

Category: Personal Injury
Continue Reading >
Friday, September 12, 2014

Four Mistakes That Will Kill Your Personal Injury Case

Understanding The Process From The Insurance Company's Perspective

There are many things that you can and should do if you have been injured in a car wreck and you can read or watch a video about them here. But most folks do not realize that there are also certain things that may kill your personal injury case and your lawyers ability to recover what your injury is worth.

So here is a list of the most common problems we face in working up personal injury cases:

Category: Personal Injury
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