Brien Roche Law-01

Personal Injury Actions

Personal Injury Actions
Brien Roche

In choosing a personal injury attorney either in the Fairfax, Virginia area or anywhere there are several factors that you should look at:

  • What the attorney has done.  The more complex your claim is then the more skilled you would want your attorney to be.  That skill can be seen by looking at the lawyer’s website or other public info about the lawyer.  Also many lawyers are listed in a legal directory referred to as Martindale-Hubbell.  Martindale-Hubbell is a legal publisher that owns the premier lawyer rating service.  Lawyers are rated by Martindale-Hubbell as either A, B or C. A being the highest.  There is then a further rating as to their ethical standing In that regard they are either rated with a letter “V” or simply not rated. The letter “V” simply means “very ethical”.
  • Results that the lawyer has had with other cases. This may show the level of competence of the attorney.  However every case is different. Although the lawyer may have had a very fine result in one case that does not assure the outcome in your case.
  • The lawyer’s record in terms of dealing with insurance companies.  Many lawyers that counsel plaintiffs also have defended insurers.  That two-sided background is a plus for any lawyer.

Personal Injury Actions-The Initial Meeting

In terms of getting ready for your first meeting with your personal injury lawyer it’s wise to do some homework.  Checking out the lawyer online may give you an idea as to how well settled the lawyer is.  Does the lawyer have a actual physical office?  The absence of such suggest the lawyer is not well established.

If your contact with the injury lawyer is through a agent who tries to get you to sign a contract with the lawyer that is a clue that you may not want to deal with this person.
In terms of the first meeting there are several things that you need to bring with you:

The Event

    • Everything that relates to the event.
    • All info about the other party and their insurer.
    • A complete rundown of the event.
    • The police report.
    • Any info card that you received from the police at the scene.
    • Any damage estimates.
    • Names and phone numbers of all persons with knowledge of the event or your injury.
    • All pictures of the scene or of the cars.
    • Any receipts for towing or storage.


    • All bills or records relating to any treatment you’ve received after the injury.
    • Any info that you have about other injuries in any way related to this injury.


  • Your own auto policy if this is an auto crash.
  • All contact you’ve had with the other party’s insurer.
  • Any health insurance that you have.  You need to be aware that under most policies the carrier has a right to recoup any monies that they have paid out on your behalf.  There may be some deducts from that.

The reason that your insurance info is needed is because your policy may cover you.  If the other driver is not insured then your uninsured motorist coverage may apply. Likewise if you have medical payments coverage, that may cover you. You may use that even though your health insurer is paying your bills. If you think you may have a claim, contact Brien Roche today.

Ask Questions

Finally if there are any questions that you think of before the meeting with the lawyer be certain to write those down. That way you won’t forget to ask them during the course of the meeting.   A common question that is asked is “What is my case worth?”.  Most lawyers will tell you that they don’t know.  Putting a value on a personal injury case is a product of your medical treatment, any lost time from work, the time and extent of your pain and suffering and whether you are disabled.  Until you’ve made either a full recovery or achieved what is called “maximum medical improvement” your case cannot be valued. If you think you may have a claim, contact Brien Roche today.

Personal Injury Actions Attorney Can Help

A courtroom is not always the best place to go to solve your problems. Because of our experience, in and out of court, we’re able to settle many personal injury cases favorably for our clients. However, if you are not being treated fairly, we are prepared to take your case to trial to get the best result for you.
We can help:

  • handle all telephone calls and negotiations with insurance adjusters
  • get medical treatment now and arrange for medical expenses to be paid by the insurance company
  • get your lost wages paid and get you compensation for any loss of future earning capacity
  • help you get you what you deserve for your pain and suffering
  • handle all the hassles and paperwork for you
  • if there is first party insurance coverage available then assist you in recovering that
  • guide you through the process of getting your vehicle appraised and repaired if necessary.

Brien Roche is an aggressive personal injury attorney representing clients in Northern Virginia for all types of injury cases. This includes car and truck accidents and premises liability. Personal injury help truly is a phone call away. For more information on personal injury issues see the pages on Wikipedia.

Personal Injury Actions-Not Taxable

Personal injury recoveries are not taxable.

Although there have been attempts in the U. S. Congress to change the law in that regard the law still remains as is.  The logic behind these amounts not being taxable is that a personal injury settlement is payment for the loss of a body part or body function.  That is not income.

The flaw in that argument is that within many personal injury settlements a part of the recovery is for loss of income.
However in most cases the award is not broken down as to loss of income.
The amount of recovery does not need to be reported on tax returns.  Any inquiry from the IRS as to the source of the funds should be met with the identity of the payor.

Discharging Your Personal Injury Attorney

That probably is not a happy day for your attorney. However sometimes it does happen.  In the Fairfax, Virginia area if a lawyer has been discharged prior to the case being settled then the lawyer is paid on a quantum meruit basis.  The term quantum meruit are  two Latin words that mean “how much is it worth”. In other words how much is the attorney’s service worth.

If there has been no settlement then a percent fee basis is not required.  Quantum meruit means the lawyer is due her hourly rate for the number of hours devoted to the matter.  If the rate is $300 per hour and 20 hours have been devoted to the matter, then the total attorney’s fees would be fixed at approximately $6,000.  That does not mean that the attorney gets that if the case itself is not even worth $6,000.  There has to be some rule of reason that is applied as to the value of the case and the value of the services.

Unhappy With Your Personal Injury Settlement?

So you are unhappy with the personal injury settlement that you reached.

In Virginia there is a cooling off period after you have signed a Settlement Agreement with an insurance company provided you are not represented by counsel.

Challenging Settlement Post Facto Is Tough

If you were represented by counsel and you decide after the fact that you are not happy with the amount of the personal injury settlement your only recourse is to make a claim against the lawyer that handled the matter. That claim would be for legal malpractice.

Most lawyers have the client sign a document stating they have approved the settlement. This may authorize  the pay out of proceeds.  Likewise, the insurer has the plaintiff sign a Release stating that they understand that the amount is being paid to satisfy the entire claim.  If in fact you have signed such documents it is going to be tough to claim  your former lawyer committed legal malpractice in allowing you to settle the case. If you think you may have a claim, contact Brien Roche today.

Personal Injury Actions-Liability and Causation

For a personal injury attorney the two most important issues in looking at a case are that of liability and what did that liability cause in the way of damage.  

Duty Owed

In an auto crash liability is a function of proving some breach of one of the rules of the road. If the rules of the road do not apply in your case then you must prove some breach of ordinary care.

In a premises liability case, such as a slip and fall, liability is proven by showing the occupant knew or should have known of a defect on the premises. For more info on the issue of duty see the page on premises liability.

With a product liability case your expert states that there is a product defect either in the design or making of the product or in a failure to warn of the defect.

In a medical malpractice case liability is shown through the standard of care having been breached. Likewise in other professional cases you have to prove a breach of the standard of care.

Source Of Duty In Tort

As part of a showing of whether fault exists, it must be shown that a duty in tort exists. The issue of tort duty or duty in tort has been addressed by the Virginia Supreme Court.  The case is RGR v. Settle decided on October 31, 2014.

Mr. Settle was the driver of a truck that was on a private road.  The private road crossed railroad tracks.  The crossing was controlled with “crossbuck” signs.  There were no warning signs, stop signs or other barriers.  The railroad owned the land 30 feet on either side of the tracks. The defendant RGR, was a lumber company.  RGR unloaded lumber from the railroad cars and then stacked it on the land alongside the tracks.  In this case, some of the lumber was stacked so that it encroached by seven (7) feet into the land owned by the railroad on that side of the tracks.  As such the stacks of lumber were 23 feet from the center of the tracks.

Line of Sight Obstructed

Mr. Settle had been crossing the railroad at this particular point several times that day.  He was hauling gravel to a nearby building site.  The train at impact was traveling 45 miles per hour. It was composed of three engines and more than 100 cars.  The sight line from the intersection of the private road and the tracks was 800 feet west.  That was the direction from which the train was coming.  The railroad conceded that one of its objectives was to make sure that there was a clear sight line for people crossing the tracks.  Likewise the railroad testified that RGR was not supposed to be storing any of its lumber on the railroad property.

An expert testified on behalf of Settle that due to the various noises inside his truck it would have been very tough to hear any noises outside the cab.  It was disputed as to whether the train blew its whistle as it approached this intersection.  There was evidence that Settle could not see the tracks to the right because of the lumber stacks.   There was no stop sign.  It was conceded by a witness on behalf of RGR that if Settle believed there was no train coming, there was no duty to stop. If you think you may have a claim, contact Brien Roche today.

Tort Duty-Duty to Mankind

The Virginia Supreme Court dealt with the issue of whether or not RGR had a tort duty to Settle to exercise ordinary care as to the placement of the lumber.  The Court reviewed the history of Virginia Supreme Court decisions on the issue of tort duty.  General negligence principles require a person to exercise ordinary care to avoid injury to others.  A 1927 case recognized a duty owed to mankind generally not to do any act which a person of ordinary prudence could reasonably apprehend, as a natural and probable consequence thereof, would subject another person to peril.  The common law requires that every person use ordinary care as to his property to prevent injury to others.

A person may not use his land unreasonably to injure the interest of persons not on his land. This includes owners of adjacent lands. Also it includes other land owners and the users of public ways.  The Court cited the Second Restatement of Torts. A possessor of land may be liable to others outside of the land for physical harm caused by a structure or other artificial conditions on the land which the possessor realizes or should realize would involve an unreasonable risk of such harm.

Tort Duty Of Owners of Land

The Circuit Court properly instructed the jury that every person has the tort duty to exercise ordinary care in the use and maintenance of its property to prevent injury or death to others.  In order for such a person to be at fault his conduct must create a recognizable risk of harm either to that person or to a class of persons within a given area of danger.   Where an ordinary person could reasonably understand that, as a natural and probable result of his act, another person rightfully there will be in danger of receiving an injury, a tort duty to use ordinary care to prevent such injury exists.  The tort duty does not depend on proof of a relationship.

Breach Of Duty

In this case the purpose of the railroad’s right-of-way was to maintain clear sight lines for motorists and the train crew. Settle in this case was rightfully traveling on this part of the road.  RGR’s argument that it owed no duty to Settle because RGR had no actual or constructive knowledge that the lumber stacks created a danger was without merit.  The question as to whether RGR breached its duty by stacking its lumber within the right-of-way area must be distinguished from the question of whether a tort duty exists.

Breach Caused Injury

In this case such a duty does exist.  The issue in this case is whether there was a breach of that duty. In addition there is the question of whether that breach was a cause of the injury. In this case the death of Settle, was for the jury.  RGR’s claim that it owed no duty to Settle would in effect absolve it of fault no matter how dangerous the conduct or foreseeable the injury.  Virginia’s Supreme Court refused to adopt that argument.
If you think you may have a claim, contact Brien Roche today. For more information about wrongful death actions see the pages on this site. For more information on the concept of duty of care see the pages on Wikipedia.

Once the duty and a breach of that duty have been shown then it must be proven whether or not the breach of that duty was a cause of injury and what are the damages that were caused.

The Tort Duty Cannot be Based on a Contract

A tort is a civil wrong. It is not based upon a contract. If I punch you in the nose because you say some bad things about one of the books that I have written then you could sue me civilly for the tort known as battery.

If on the other hand you and I enter into a contract and one of us breaches the contract then the resulting lawsuit is simply a breach of contract action.  It is not a tort claim.  Sometimes that gulf between contract and tort in Virginia is tough to fathom.  For instance you and I enter into a contract for you to build a deck on the back of my house. If the deck collapses while I’m standing on it, I may have not only a contract claim against you but I may also have a tort claim against you. The latter arises because of your fault in the building of the deck. The tort claim arises out of the duty to exercise ordinary care in the building of the deck. The contract claim arises out of the contract.

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See also the blog on this site for a number of articles published by Brien Roche dealing not only with personal injury but a host of related topics. For more information on the general topic of personal injury see the pages on Wikipedia.


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