19.1 General Considerations

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

19.1 GENERAL CONSIDERATIONS

19.101 Statutes of Limitation and Notice Requirements.

A. Personal Injury Cases. The statute of limitations on personal injury cases is two years from the date of the incident, unless the injured party is a minor, then the statute of limitations is two years from the date of the minor's eighteenth birthday. ¹

B. Federal Tort Claims Cases. Federal tort claims require written notice to "the appropriate federal agency" within two years after the claim accrues or within six months after the date of mailing of notice of final denial by the agency to which it was presented. ²

C. Tort Claims Against the Commonwealth. Va. Code § 8.01-195.6 requires any claims against the Commonwealth to have written notice filed with the Attorney General or Director of the Division of Risk Management within one year of the date the cause of action accrued.

D. Suits Against Counties, Cities, and Towns. When a claimant sues a municipality, the claimant or his or her attorney must file "a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued." ³

While the statute is to be strictly construed, it provides that

failure to provide such statement shall not bar a claim against any county, city, or town, provided that the attorney, chief executive, or mayor of such locality, or any insurer or entity providing coverage or indemnification

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of the claim, had actual knowledge of the claim, which includes the nature of the claim and the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued. ⁴

19.102 Correct Party. Refer to the accident report for names and addresses of defendants. Be cautious and make sure the right person is named because there have been reports that name incorrect drivers. If the case involves an unknown driver, then the case is against a John Doe. This is important mostly for filing a lawsuit. ⁵

In premises cases, ⁶ it is important to confirm the appropriate entity by:

a.	Checking county tax records,
b.	Reviewing business licenses,
c.	Accessing the State Corporation Commission online.

Misnomers can be corrected, but there are limits as to what the court will accept. ⁷

For a wrongful death case, the action "shall be brought by and in the name of the personal representative of such deceased person." ⁸

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For children's cases, a parent or legal guardian, called the "next friend," can bring forth a claim on the child's behalf. ⁹ The action cannot be brought in the parent's own name. ¹⁰

When filing a lawsuit be sure to name all parties that could be responsible.

When suing the state or state agency a lawsuit must include The Commonwealth of Virginia as a defendant.

19.103 Venue.

A. Category A or Preferred Venue. ¹¹ In actions under the Virginia Tort Claims Act ¹² venue lies:

1.	In the county or city where the claimant resides;
2.	In the county or city where the act or omission complained of occurred; or
3.	If the claimant resides outside the commonwealth and the act or omission complained of occurred outside the Commonwealth, in the City of Richmond. 13

B. Category B or Permissible Venue. One or more of the following jurisdictions are appropriate for venue purposes in a tort action:

1.	Wherein the defendant resides or has his principal place of employment or, if the defendant is not an individual, wherein its principal office or principal place of business is located;
2.	Wherein the defendant has a registered office, has appointed an agent to receive process, or such agent has been appointed by operation of the law; or, in

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	case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
3.	Provided there exists any practical nexus to the forum including, but not limited to, the location of fact witnesses, plaintiffs, or other evidence to the action, wherein the defendant regularly conducts substantial business activity, or in the case of withdrawal from the Commonwealth by such defendant, wherein venue herein was proper at the time of such withdrawal;
4	Wherein the cause of action, or any part thereof, arose;
. . . .
9.	If there is no other forum available in subdivisions 1 through 8 of this category, then the county or city where the defendant has property or debts owing to him subject to seizure by any civil process; or
10.	Wherein any of the plaintiffs reside if (i) all of the defendants are unknown or are nonresidents of the Commonwealth or if (ii) there is no other forum available under any other provisions of § 8.01-261 or this section. 14

19.104 Investigation. Consider taking the following steps when investigating a case:

1.	Obtain a copy of the police accident report.
2.	Check court records at the Virginia courts website www.courts.state.va.us for traffic court dispositions.
3.	Request copies of notes and photographs prepared by the reporting officer.

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4.	Consider hiring a private investigator to interview witnesses and the police officer, or conduct the interviews personally.
5.	Quickly get photographs of property damage because the vehicles will be removed or repaired soon after the collision. Subpoena property damage records from the insurance company of the other vehicle.
6.	Get photographs or videos of the scene.
7.	Request copies of client's medical records and bills, and previous medical records in cases where the client has a pre-existing condition. When requesting bills from a hospital, know that most hospitals have more than one billing entity. There may be a separate bill for the emergency room physicians, a bill for the hospital, a bill for x-rays, and a bill for the anesthesia.
8.	Create a chronology of the client's treatment, such as a medical records summary.
9.	If an injury is strange or is a pre-existing condition, set an appointment to discuss the injury and treatment with the client's treating physician.
10.	Look at the Virginia Model Jury Instructions. This will help you understand your theory(ies) of your case and potential causes of action or statutory references to violations in a motor vehicle case, for example.
11.	Preserve evidence.
	a.	Preserve and store all material evidence—tangible and electronic—to avoid an argument of spoliation of evidence.
	b.	In products cases, store the defective product. Detail the chain of custody.

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	c.	Send spoliation letter to potential defendant to preserve all material evidence in any type of case.
12.	Retain a court reporter to attend the traffic court hearing.
13.	Sent letters of representation out to all insurance companies, including health insurance entities like Medicare and Medicaid.
14.	Make sure that your letter directs them to your office and instructs them not to contact the client.
15.	Know that the defense is going to subpoena:
	a.	Workers' Compensation Commission
	b.	All doctors seen in the last five to ten years
	c.	Department of Motor Vehicles
	d.	State Police for Criminal Record
	e.	Employment records
16.	In a premises case, there may be a time when you need to speak with the employees of the Defendant. Make sure that you are not talking to a represented party. 15 Do not speak to any employees in management.

19.105 Assessing Insurance and Its Interplay. Unfortunately, it is now imperative to understand how non-liability insurance policies and other liens are going to affect your case.

A. Private Health Insurance. In Virginia, if the policy is written under Virginia law then they should not be entitled to be reimbursed for what they paid for medical bills. Virginia has an anti-subrogation law.

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B. ERISA. If the policy is written under the Federal ERISA statute then you may have to reimburse for the medical bills that were paid under that policy. It important to know that policies can be written so that there is no reduction for attorney's fees or costs. Be sure you are not taking a case where the attorney fees and costs are paid and the medical insurer is reimbursed but the client is left with nothing. Find out early if the health insurance is an ERISA policy. It sometimes is possible to negotiate with the provider, but not always.

C. Workers' Compensation. If the client was covered by workers' compensation in the case, the workers' compensation carrier is entitled to be reimbursed for what they paid in medical bills and lost wages. The lien amount that they assert is statutorily reduced by the percent of attorney's fees and costs. Sometimes these liens can be negotiated. If you are trying a case with tough liability and there is a chance of a compromise verdict, negotiate a lien before the case is tried.

D. Medicare and Medicaid. Medicare must be reimbursed but allows for a lien reduction for attorney's fees and costs. If the recovery is small or there is not enough liability coverage, it is possible to negotiate a reduction to the lien.

Medicaid must be reimbursed but does not allow for a reduction for attorney's fees and costs. It is possible to negotiate the lien if settlement is...