Student Legal Services at Virginia Tech
AT THE SCENE OF THE ACCIDENT
If you are involved in an automobile accident, the first thing to do is to prevent further collisions. Normally, you should leave your car where it is until police arrive, but if the accident occurred in a location that isn't easily seen by on-coming traffic, move your vehicle to a safe location if possible. (Note that in certain localities with heavy traffic congestion on the freeways, there are signs indicating that vehicles should be moved to the shoulder as soon as possible in cases of minor fender benders.) If your car can't be moved and visibility is low due to darkness or bad weather, turn on your emergency flashers and alert on-coming traffic of danger by setting out road flares well ahead of the accident. If fuel is leaking from your car, do not turn on your emergency flashers; instead, turn off the ignition. If fuel is leaking from any vehicle, don't set out road flares. If your car isn't blocking traffic and isn't in danger of being hit by other cars, leave it where it is.
Next, you need to help the critically injured. Apply CPR or other first aid if you have the training for it. Generally, you shouldn't move a seriously-injured person unless they are in immediate danger of being hit by another vehicle or they are in a vehicle that is on fire. Incorrectly moving a person with back or neck injuries can cause paralysis or even death. Call 911 as soon as possible and tell them you need an ambulance.
Even if no one is seriously injured, call 911 if any vehicles are blocking the road or pose a danger to others.
If there are no serious injuries and all of the vehicles can be safely driven, you must still report the accident to the police as soon as possible.
Don't rely on the investigating police officer to record all of the information that might be important in a lawsuit later on. The standard accident report won't necessarily have everything that your insurance company or lawyer might need. Be sure to take pictures of the accident scene, vehicles, other damaged property, parties involved, and witnesses. Record the other drivers' names, contact information, insurance information, and driver's license numbers. Get the names and contact information for any investigating law enforcement officers and witnesses. If you don't have a camera, draw a map of the accident scene showing vehicle locations and record the license plate numbers of every vehicle involved.
REPORTING THE ACCIDENT
IF ANYONE IS KILLED OR INJURED OR IF YOU DAMAGE AN ATTENDED VEHICLE OR ATTENDED PROPERTY:
Failure to report an accident to the police when it results in death or injury to a person or when it results in damage to an attended vehicle or attended property is a crime. If the accident results in death or injury to a person, or the damage to the attended property is more than $1,000, it is a Class 5 felony; if the property damage is less than $1,000, it is a Class 1 misdemeanor (See Virginia Code Section 46.2-894.).
You must provide your name, address, driver's license number, and vehicle registration (license plate) number to the State Police or local law enforcement agency and provide the same information to any struck or injured pedestrian or cyclist, to the driver and other occupants of every vehicle that you collided with, and to the custodian of any damaged property.
IF YOU DAMAGE ONLY AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY:
If you are involved in an accident in which only an unattended vehicle or unattended property (e.g. an empty building, a fire hydrant, a utility pole, etc.) is damaged, you are required to make a reasonable attempt to find the owner or custodian of the vehicle or property and report to him the same information as required above. If you cannot find the owner or custodian, you must leave a note in a conspicuous place at the scene with the required information and report the same information along with the date, time, and place of the accident plus a description of the damage to the State Police or local law enforcement agency in writing within 24 hours. If you have no way of leaving a note at the scene of the accident, you should call the police and notify them of the accident before you leave the scene. That way, you don't risk being charged with a hit-and-run. (See Virginia Code 46.2-896) Failure to comply with these requirements can result in being charged with a misdemeanor. If the damage to the unattended property is more than $250, it is a Class 1 misdemeanor, if it is less than $250, it is a Class 4 misdemeanor. (See Virginia Code Section 46.2-900)
DUTY OF PASSENGERS TO REPORT:
If you are a passenger in a vehicle involved in an accident and the driver fails to stop and report as required above, you are required to report the accident to the police. Failure to comply can result in being charged with a felony. (See Virginia Code Sections 46.2-895 and 46.2-897)
AUTOMOBILE LIABILITY INSURANCE
After reporting the accident to the police, you need to report it to your insurance company in accordance with the requirements of your insurance policy. If a claim is made against you for an accident that you didn't report to your insurance company, the company can terminate your insurance coverage.
There are two types of automobile liability insurance regimes in the United States: Fault and No-Fault. Virginia is a fault state, which means that your liability insurance pays only if the driver of your car was at fault for the accident. In no-fault states, the car owner's insurance company pays the driver and passengers for their injuries no matter who is at fault for the accident (in a way similar to how a person's health insurance pays for that person's medical care no matter who caused the injuries). No-fault states usually limit an injured party's ability to sue the at-fault party. The idea is to reduce the amount of money spent on litigation. No matter which regime you purchase your car insurance under, your insurance company will abide by the rules of the state where the accident actually occurred. For example, if you purchase liability insurance in Virginia and are involved in an accident in a no-fault state, your insurance company will pay your medical bills in accordance with the no-fault state's rules even if you were completely at fault for the accident. If you are covered by an insurance policy issued in a no-fault state and have an accident in Virginia, you will be paid for your injuries only if you were not at fault and the other driver was at fault--and it would be the other driver's insurance company that would pay you.
A strange feature of insurance law is that it's not drivers who are required to have liability insurance; instead it's the car owners who are expected to get it. (Note that drivers can purchase separate driver's insurance, which might make sense for a driver that doesn't own a car but often rents one.) The owner of every vehicle must comply with Virginia's financial responsibility laws. With a few exceptions, this means the owner must have liability insurance on the vehicles he owns. (Note: When a vehicle is leased, it is sometimes the lessee who is required to purchase insurance, rather than the owner.) In Virginia, an owner can also meet the financial responsibility laws by paying an annual $500 uninsured motorist fee in lieu of purchasing insurance. This is usually unwise because it doesn't provide any insurance and makes the driver financially responsible for all damages he causes (and a few days in the ICU can cost more than $100,000). Whereas, if you are at fault for an auto accident and covered by liability insurance, your insurance company will pay the injured parties up to the coverage limits of the insurance. Note that you are still responsible for any injuries and damages beyond the coverage limits.
Currently in Virginia, the minimum amount of liability coverage that a person can buy is a 25/50/20 policy. The numbers represent different types of coverage in thousands of dollars. The first two numbers (the "25/50") are the amounts that the insurance company will pay for bodily injury claims arising from an accident that you are legally liable for. The first number is the per-person amount and the second number is the per-accident amount. If you had such a policy and caused an accident that resulted in injuries to three people in amounts of $15,000, $25,000, and $30,000, your insurance company wouldn't be responsible for paying $5,000 of the third person's injuries because his injuries exceed the $25,000 per-person cap. Even after reducing the third person's injuries covered by your insurance to $25,000, the total injuries would amount to $65,000, which exceeds the $50,000 per-accident cap by 15,000. You would personally owe the $20,000 ($5,000 plus $15,000) not covered by your insurance company. (Note: Your insurance company would try to convince the injured persons to settle their claims for the amount of your insurance coverage and if they were successful, you wouldn't owe the injured parties for the excess amounts.) The third number (the "20") is the total amount the insurance company will pay for all property damage claims in a single accident. If you had such a policy and caused an accident that completely destroyed two cars owned by different drivers and each car was worth $25,000 (for a total of $50,000), your insurance company would pay $20,000 total (split between the two owners) and you would owe the remaining $30,000. The numbers given in the examples are typical of what a person might have to pay in a moderately serious car accident and could go much higher. If you have only the minimal coverage amounts, you probably don't have enough insurance. To learn more about auto insurance in Virginia check Virginia State Corporation Commission Consumer's Auto Insurance Guide .
COLLISION, COMPREHENSIVE, AND MEDICAL PAYMENT INSURANCE
In addition to liability insurance, you might also have collision, comprehensive, or medical payment insurance.
Collision insurance pays you for damages to your vehicle resulting from a collision, whether you were at fault or not and whether it was a single-vehicle collision (say, a collision with a tree) or a collision with another vehicle. Note that, based on the amount of your deductible, you will have to pay the first $250 to $1500 of damages out of your own pocket. The lower the deductible you choose, the higher your premiums will be.
Comprehensive insurance pays you for damages to your vehicle resulting from other causes such as weather (hail, flood, lightning, etc.), arson, theft, or vandalism. Comprehensive also has a deductible.
If you borrow money to buy a car, your lender is almost certain to require you to have collision and comprehensive coverage on the car with the lender named as a beneficiary for as long as you owe money on the car loan. That's because repossessing a wrecked car isn't much use to them if you quit paying off the loan.
Medical payment ("Medpay") insurance compensates you and your passengers for any medical bills (up to the coverage limits) that result from an auto accident while driving or riding in your vehicle no matter who is at fault. It's a bit like insurance in a no-fault state. (If you can't afford health insurance, you might consider getting Medpay insurance.)
If you are in an auto accident and you have collision coverage, your insurance company might ask you whether you wish to make a claim against your own collision coverage or make a claim against the other driver's liability insurance for your property damage. (This assumes that you're not at fault for the accident.) If you make a claim against your own collision coverage, you will have to pay the deductible and your insurance company will gain your right to sue the other driver for the amount that they paid to you. In legal terms this is called "subrogation". The only real advantage to making a claim against your own collision coverage is that you should be paid quickly by your insurance company. This might be important when there is a dispute over liability that might take a long time to resolve and you need money in a hurry to buy another car. Because fault isn't an issue for collision coverage, you and your insurance company only need to agree on the amount of damages before they send you a check. If you make a claim against your collision coverage, your rates can go up due to the collision only if you were at fault.
UNINSURED AND UNDER-INSURED MOTORIST INSURANCE
So what happens if you're in an accident and the other driver is completely at fault but he doesn't have any liability insurance or doesn't have enough insurance to pay for all of your medical and repair bills? If you have liability insurance, then in Virginia, you also have at least some amount of Uninsured Motorist (UM) and Under-Insured Motorist (UIM) insurance coverage. UM coverage pays you when the other driver doesn't have any insurance and UIM pays you when the other driver doesn't have enough. To see how this works, let's look at an example.
Let's say that Patricia has an insurance policy with liability and UM/UIM coverage amounts of 50/100/40 (double the minimum in Virginia). Derek runs a red light at an intersection and hits Patricia's car causing $60,000 in personal injury damages to Patricia and $30,000 in property damage to Patricia's car. If Derek has no insurance at all, Patricia could demand that her own insurance company pay for her injuries and damages under her UM coverage up to the limits of her own coverage, which is capped at $50,000 for personal injuries.
If, instead of having no insurance at all, Derek has liability insurance in coverage amounts of 25/50/20 (the minimum), Derek's insurance would pay Patricia $25,000 for her personal injuries and $20,000 for her property damage. Patricia could sue Derek and get a court judgment against him for the amounts that his insurance didn't pay, but if Derek is poor and unemployed, she might not be able to collect any money from him to pay off the judgment. Instead, she can make a claim against her own UIM coverage for the amounts that Derek's insurance didn't pay; however, she can't receive a total recovery in excess of her own coverage limits. Under her UIM coverage, Patricia would get $25,000 for personal injuries and $10,000 for the property damages (for a total from both Derek's and her own insurance of $50,000 and $30,000. She would still be out $10,000 for her personal injury damages, unless she had MedPay coverage or health insurance to pay for it).
There are a lot of people driving around with only the minimum amount of liability coverage. You should take a look at your complete financial and insurance situation, and decide whether you need more insurance or not.
Determining who is at fault for an accident isn't always easy. If you've been in an accident, never assume that you understand the law well enough to make such a determination yourself. Always talk to a lawyer to help you determine whether you were at fault. When the police investigate an accident, they will usually give a traffic ticket to one of the drivers. Don't assume that this automatically makes the person who received the ticket the one who is at fault. Also note that both drivers involved in a two-car collision could be at fault. The laws of each state vary on how such a situation is normally resolved. Virginia, Alabama, Maryland, North Carolina, and DC follow the traditional "Contributory Negligence" approach to liability while the rest of the states have switched to one form or another of the "Comparative Negligence" approach.
Under Contributory Negligence, if a person is even only slightly at fault for an accident, he usually can't recover anything from the other party, but under the Comparative Negligence approach his recovery is simply reduced by the amount of his own negligence. For example, if Patricia and Derek are in an auto accident and Patricia is five percent at fault and Derek is ninety-five percent at fault, Patricia will normally lose in a lawsuit against Derek in a Contributory Negligence state. In a Comparative Negligence state, Patricia would be awarded a judgment for ninety-five percent of her damages. Note that there are many exceptions to the general rules and you should always consult an attorney about whether you legally owe or are owed money as a result of an auto accident.
Usually, both parties to the auto accident have insurance and the insurance companies decide between themselves which driver was at fault. Then the insurance company of the at-fault driver usually makes an offer to pay the other driver an amount of money to settle the case. If they can agree on a price, the driver receiving money will have to sign a settlement contract or release agreeing not to sue the other driver.
The term "damages" refers to both the loss that a person suffers as well as the amount of money that is given as compensation. Auto accident victims typically recover damages for medical bills, pain and suffering, property damage, and lost wages. "Pain and suffering" refers to actual pain and loss of functionality due to physical injury. If you weren't physically harmed yourself, you usually won't get damages for pain and suffering even if your fully-restored, mint-condition, red, 1964 Ford Mustang was accidentally flattened by a steamroller. (You'll certainly be suffering, but it won't be the kind of suffering that you can recover extra money for.)
Sometimes a victim can recover punitive damages as well, but generally, at least in Virginia, punitive damages are given only when the at-fault party did something that was much worse than ordinary negligence. Usually, the at-fault party's behavior must be grossly negligent, reckless, willful, wanton, or malicious for the victim to be able to recover punitive damages. If punitive damages are justified, the court will usually award an amount of money that is a multiple of the actual damages suffered.
WHAT SHOULD YOU DO IF YOU'VE BEEN IN AN AUTO ACCIDENT?
If you're a VT student, make an appointment to see the SLS Attorney.
The information provided on this website may not be current or valid. You must not rely on the information contained here without first speaking to a licensed attorney. Always speak to a licensed attorney regarding any legal issue you may have.
Student Legal Services at Virginia Tech is not an agent of Virginia Polytechnic Institute and State University. Legal services are provided by an independent contractor and funded by student activity fees.
This page is located at http://www.legal.sga.vt.edu/accidents.htm.
This page was last updated November, 2016.