Were you injured?
To file a personal injury lawsuit against a person or business, the victim must have been injured. Being upset, scared, or angry by another’s actions is not enough to form the basis of a personal injury lawsuit. Either you, your family member, or your property must have been injured in some way. Many attorneys will not take a case unless there is significant injury.
Was another person or business at fault?
To sue a person or business for damages, the defendant must be at least partly at fault for your injuries. If something they did or didn’t do was the direct cause of your injuries, you are able to sue for compensation.
What Does “At Fault” Mean?
In most personal injury cases, it means the other side should have been more careful to avoid causing harm like this. The legal term for this is “negligence.” Some common examples:
The other driver was going too fast and lost control of his car;
A store left a puddle of water on the floor when it should have been cleaned up;
In rare cases, “At Fault” might mean that the other person was purposely trying to hurt you or your property. But most of the time, “At Fault” means the other side should have been more careful.
Was there “negligence”?
“Negligence” requires two factors.
First, the party being sued must have a “duty” to be careful toward you. For example, when you drive your car the law says you have a duty to be careful toward everyone else.
Second, that the party being sued neglected, or violated, or “breached” its duty.
Here are a couple of examples:
Example: Susan’s doctor accidentally prescribed the wrong medication for her after surgery. Susan had a bad reaction to the drugs and had to go to the emergency room for her symptoms.
- Susan’s doctor had the duty to provide competent medical treatment, and violated that duty by prescribing the wrong medication. Susan’s doctor was negligent.
Example: While shopping for groceries, Susan slipped in a puddle of water on the floor of the store and was injured.
The grocery store had the duty to provide a safe environment for its customers, and violated that duty by failing to clean up hazardous spills on the floor. The grocery store was negligent.
What if I’m partly at fault? What then?
In West Virginia, a victim can recover damages even if they are partly at fault in the situation. This is called “comparative negligence.”
In West Virginia a victim can recover damages as long as they were less than 50% responsible for their injuries. If the injured person’s fault was more than 50% of the cause of the injury, then the injured person cannot get damages in West Virginia.
What are “damages?”
“Damages” refers to all the ways the injury you suffered has caused harm to you. Assuming the other side was “negligent,” you can get monetary compensation for all “damages” the injury caused. “Damages,” the money awarded to you, can cover a wide range of expenses and losses, including:
- Medical bills
- Lost wages
- Pain and suffering
- Loss of enjoyment of life
- Loss of consortium
- Property damage
- Other damages
What is “pain and suffering?”
West Virginia law allows for victims of injuries also to recover for intangible damages. The most common type is the broad term “pain and suffering.” This can include:
- Mental anguish
What is “bad faith?”
This question refers to dealing with insurance companies after an accident or injury. Insurance companies have a legal duty to approve valid insurance claims. This applies both to the insurance company that covers the other side, and to your insurance company. But sometimes an insurance company may deny a valid insurance claim. This is usually either to protect their own interests or because of a mistake or failure to follow proper procedures.
You have a right to sue insurance companies that deny claims without a good basis. The law calls this a “bad faith” claim.
How long do you have to file a lawsuit?
West Virginia law gives you two years from the date of your accident to file a lawsuit against the responsible party.
How much will it cost?
The cost of a lawsuit varies from one lawyer to the next.
Personal injury lawyers often take on cases on what’s called a “contingency” basis. This means the lawyer will get paid a part of the money you win in the lawsuit (usually 1/3rd of the damages). Under this kind of arrangement, you do not have to pay your attorney fees at the start of the case, or as the case goes along. The attorney will get paid at the end, by receiving a share of the damage award.
Can you sue without a lawyer?
Yes, the legal system will allow you to file a lawsuit without a lawyer. Especially with personal injury cases, this is a bad idea. It is difficult to file a lawsuit, and succeed, unless you have the necessary legal knowledge and experience.
How do I find the best attorney?
There are several things to look for when searching for the right attorney for you:
- The attorney must be licensed in your state.
- The lawyer should have experience with cases like yours.
- He or she should be in good standing with the American Bar Association.
- They should have excellent communication skills. They should be able to explain the details of your case and the legal process in a way that is easy for you to understand.
Legal Aid cannot take these types of cases.
Will the case settle or go to court?
Whether a case will settle or go to court depends on several factors. This includes whether an insurance company is involved and if their settlement offer is enough to cover the victim’s losses. An attorney cannot predict in advance whether the case will settle or if it will be necessary to try the matter in court.
NOTE: Legal Aid of West Virginia wishes to thank Sonny Johnstone, a personal injury attorney in Charleston, West Virginia, for writing this article for the Legal Aid web site. For more information about Mr. Johnstone and his law firm, go to their web site at: https://www.wvlaw.net/