Auto Accident Demand Letter - West Virginia

DEMAND FOR SETTLEMENT - MOTOR VEHICLE COLLISION

STATE OF WEST VIRGINIA

FOR SETTLEMENT PURPOSES — W. VA. R. EVID. 408 MAY LIMIT SPECIFIED USES OF DISPUTED-CLAIM NEGOTIATIONS

[FIRM NAME]
[________________________________]
[________________________________]
[City], West Virginia [____]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[Adjuster Name]
[________________________________]
[Insurance Company Name]
[________________________________]
[Street Address]
[________________________________]
[City, State ZIP]

RE: SETTLEMENT DEMAND - MOTOR VEHICLE COLLISION
Our Client: [________________________________] (hereinafter "Claimant")
Date of Loss: [__/__/____]
Location of Accident: [________________________________]
Your Insured: [________________________________] (hereinafter "Tortfeasor")
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Birth: [__/__/____]
Age at Time of Accident: [____]

Dear [________________________________]:

This firm represents [________________________________] (hereinafter "Claimant") in connection with personal injuries and damages sustained in a motor vehicle collision that occurred on [__/__/____] in [________________________________] County, West Virginia. This letter constitutes a formal demand for settlement of our client's claims arising from the negligence of your insured, [________________________________].

If and to the extent this demand constitutes compromise negotiations concerning a disputed claim, W. Va. R. Evid. 408 may limit specified uses of the negotiations. It does not itself create confidentiality or privilege and may permit use for another purpose. We remind you that West Virginia law imposes statutory duties upon insurers in the handling of claims under the West Virginia Unfair Trade Practices Act, W. Va. Code § 33-11-4, and that the failure to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim in which liability has become reasonably clear may subject your company to regulatory action and other remedies described below.

I. WEST VIRGINIA LEGAL FRAMEWORK

A. Modified Comparative Fault (51% Bar) - W. Va. Code § 55-7-13a

West Virginia abolished joint and several liability and adopted a modified comparative fault system effective May 25, 2015 (2015 W. Va. Acts, H.B. 2002), codified at W. Va. Code §§ 55-7-13a through 55-7-13d. Section 55-7-13a provides:

"(a) For purposes of this article, 'comparative fault' means the degree to which the fault of a person was a proximate cause of an alleged personal injury or death or damage to property, expressed as a percentage. . . .
(b) In any action based on tort or any other legal theory seeking damages for personal injury, property damage, or wrongful death, recovery shall be predicated upon principles of comparative fault and the liability of each person, including plaintiffs, defendants and nonparties who proximately caused the damages, shall be allocated to each applicable person in direct proportion to that person's percentage of fault.
(c) The total of the percentages of comparative fault allocated by the trier of fact with respect to a particular incident or injury must equal either zero percent or one hundred percent."

Under W. Va. Code § 55-7-13c(c), a plaintiff whose comparative fault is greater than 50% of the total fault is barred from recovery. If the plaintiff's fault is 50% or less, the plaintiff may recover, but the total recoverable damages are reduced in proportion to the plaintiff's percentage of fault.

In the present case, your insured bears 100% of the fault for this collision. Our client was free of all comparative fault.

B. Several Liability - W. Va. Code § 55-7-13c

Under W. Va. Code § 55-7-13c(a), "the liability of each defendant for compensatory damages shall be several only and may not be joint." The court determines each defendant's share by multiplying the total amount of compensatory damages recoverable by the plaintiff by that defendant's percentage of fault. Joint liability is preserved only in limited circumstances, including where defendants consciously conspired and acted in concert, and where the conduct involves driving under the influence of alcohol or drugs, criminal conduct, or the illegal disposal of hazardous waste. W. Va. Code § 55-7-13c.

C. Allocation of Fault to Nonparties - W. Va. Code § 55-7-13d

Under W. Va. Code § 55-7-13d, the trier of fact shall consider the fault of all persons who proximately contributed to the alleged damages, regardless of whether the person was or could have been named as a party. A defending party seeking to assess fault against a nonparty must give notice no later than 180 days after service of process identifying the nonparty and the basis for the claim of fault.

D. Statute of Limitations - W. Va. Code § 55-2-12

Under W. Va. Code § 55-2-12(b), the statute of limitations for a personal injury action is two (2) years from the date the claim accrued, which is typically the date of injury. The collision occurred on [__/__/____], and accordingly, the personal injury limitations period expires on [__/__/____].

IMPORTANT NOTE: West Virginia's two-year personal injury statute of limitations is comparatively short. We urge prompt resolution of this claim to avoid the necessity of litigation.

E. Mandatory Liability Insurance - W. Va. Code § 17D-4-2; § 33-6-31

West Virginia is a compulsory-insurance, tort-based state. Every motor vehicle registered in West Virginia must carry liability insurance meeting the following minimum limits:

F. Mandatory Uninsured Motorist Coverage - W. Va. Code § 33-6-31

Under W. Va. Code § 33-6-31, every automobile liability policy issued or delivered in West Virginia must provide uninsured motorist (UM) coverage in limits not less than the minimum financial responsibility limits (25/50/25), and insurers must offer optional underinsured motorist (UIM) coverage and increased UM limits. UM/UIM coverage applies where the at-fault driver is uninsured or carries insufficient limits to fully compensate the claimant.

G. Bad Faith and Unfair Claim Settlement Practices

West Virginia imposes statutory standards on insurers under the Unfair Trade Practices Act, W. Va. Code § 33-11-4(9), which prohibits, among other things, "[n]ot attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear" and "[c]ompelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered."

Third-Party Claims (Administrative Remedy Only): West Virginia abolished the private third-party statutory bad-faith cause of action in 2005. Under W. Va. Code § 33-11-4a, a third-party claimant's sole remedy for an unfair claim settlement practice is the filing of an administrative complaint with the Insurance Commissioner, which must be filed within one (1) year of the discovery of the unfair claim settlement practice. A third-party claimant may not include allegations of unfair claims settlement practices in the underlying litigation against the insured.

Preservation of Rights: This demand serves as notice of your statutory obligations under W. Va. Code § 33-11-4. Our client reserves the right to file an administrative complaint with the West Virginia Insurance Commissioner under W. Va. Code § 33-11-4a, and reserves all first-party rights and remedies available under West Virginia common law, including Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986), and Jenkins v. J.C. Penney Cas. Ins. Co., 167 W. Va. 597, 280 S.E.2d 252 (1981), with respect to any first-party (e.g., UM/UIM) component of this claim.

H. Collateral Source Rule

West Virginia follows the collateral source rule. Compensation or benefits a plaintiff receives from sources independent of the tortfeasor (such as health insurance) generally do not reduce the damages recoverable from the tortfeasor and are inadmissible to diminish the plaintiff's recovery. See Kenney v. Liston, 233 W. Va. 620, 760 S.E.2d 434 (2014).

II. STATEMENT OF FACTS

A. Accident Description

On [__/__/____], at approximately [____] [a.m./p.m.], our client, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing West Virginia license plate number [________________________________], traveling [direction] on [________________________________] [Street/Highway/Route] in/near [________________________________], [________________________________] County, West Virginia.

At the time of the collision, our client was [________________________________] [describe activity].

Your insured, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing license plate number [________________________________]. Your insured [________________________________] [describe negligent conduct].

As a direct and proximate result of your insured's negligence, your insured's vehicle struck our client's vehicle [________________________________] [describe point of impact].

B. Weather and Road Conditions

Weather conditions were [________________________________]. Road conditions were [________________________________]. Visibility was [________________________________]. The posted speed limit was [____] miles per hour.

C. Police Report

The collision was investigated by [________________________________] [law enforcement agency, e.g., West Virginia State Police, county sheriff, municipal police department]. The investigating officer, [________________________________], prepared a report assigned Case Number [________________________________]. The report [________________________________] [summarize findings].

D. Witnesses

E. Physical Evidence

☐ Photographs of the accident scene preserved
☐ Photographs of vehicle damage preserved
☐ Photographs of client's visible injuries preserved
☐ Dashcam or surveillance video footage [is/is not] available
☐ Event Data Recorder (EDR) data [has/has not] been preserved
☐ Cell phone records of the at-fault driver [have/have not] been requested
☐ Traffic camera footage [has/has not] been requested

III. LIABILITY ANALYSIS

A. Negligence of Your Insured

Under West Virginia law, the elements of a negligence claim are: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) a causal connection between the breach and the plaintiff's injury, and (4) damages. See Strahin v. Cleavenger, 216 W. Va. 175, 603 S.E.2d 197 (2004).

Your insured breached the duty of care by:

☐ Failing to maintain control of the vehicle
☐ Operating a motor vehicle in a reckless manner (W. Va. Code § 17C-5-3)
☐ Failing to maintain a proper lookout
☐ Failing to maintain a safe following distance (W. Va. Code § 17C-7-10)
☐ Failing to yield the right of way
☐ Operating a motor vehicle while distracted / texting (W. Va. Code § 17C-14-15)
☐ Operating a motor vehicle under the influence (W. Va. Code § 17C-5-2)
☐ Exceeding the posted speed limit (W. Va. Code § 17C-6-1)
☐ Failing to obey a traffic control device (W. Va. Code § 17C-12-1)
☐ [________________________________] [other negligent conduct]

B. Negligence Per Se

Where your insured violated a traffic statute enacted for the safety of the public, that violation constitutes prima facie evidence of negligence under West Virginia law.

C. Proximate Causation

Your insured's negligence was the direct and proximate cause of our client's injuries. But for the negligent conduct, this collision would not have occurred.

D. Allocation of Fault

Your insured bears 100% of the fault for this collision. Our client bears 0% comparative fault. Accordingly, no reduction under W. Va. Code § 55-7-13a applies.

IV. INJURIES AND MEDICAL TREATMENT

A. Emergency Treatment

Following the collision, our client was [________________________________] [describe transport to medical facility] on [__/__/____]. Presenting complaints included:

• [________________________________]
• [________________________________]
• [________________________________]

Emergency diagnoses:

• [________________________________]
• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

C. Treating Physicians and Specialists

D. Current Medical Status and Prognosis

As of this demand, our client [________________________________] [describe current condition and prognosis]. Dr. [________________________________] has opined that [________________________________].

E. Future Medical Treatment

V. DAMAGES

A. Economic Damages

1. Past Medical Expenses

2. Future Medical Expenses

3. Lost Wages and Income

Our client was employed by [________________________________] as a [________________________________] earning $[________] [per period]. As a direct result of injuries, our client was unable to work for [________________________________].

4. Loss of Earning Capacity

[If applicable] $[________]

5. Property Damage

6. Out-of-Pocket Expenses

B. Non-Economic Damages

1. Pain and Suffering

Our client has endured significant physical pain, emotional distress, and diminished quality of life. [________________________________] [Describe nature and severity of pain, impact on daily life, sleep issues, anxiety, depression, loss of enjoyment, etc.]

West Virginia does not impose a statutory cap on non-economic damages in ordinary motor vehicle personal injury cases. (Note: a non-economic damages cap applies to medical professional liability actions under W. Va. Code § 55-7B-8, which does not apply here.)

Pain and Suffering Valuation: Based on the severity, duration, and permanence of our client's injuries, we value pain and suffering at $[________].

2. Loss of Consortium

[If applicable] Our client's spouse, [________________________________], has suffered loss of consortium including the loss of companionship, comfort, society, and services. West Virginia recognizes loss of consortium as an independent cause of action.

Loss of Consortium Damages: $[________]

C. Summary of Damages

VI. DEMAND FOR SETTLEMENT

Based upon the foregoing, we demand settlement in the total amount of:

$[________________________________]

This demand is open for thirty (30) days, expiring on [__/__/____]. If we do not receive a meaningful response or acceptable offer by that date, we will file a civil complaint in the appropriate West Virginia Circuit Court without further notice.

This demand covers all claims including:

☐ Personal injury claims
☐ Property damage claims
☐ Loss of consortium (if applicable)
☐ All past, present, and future damages

[OPTIONAL - POLICY LIMITS DEMAND] The damages set forth above substantially exceed the available liability coverage. We therefore demand tender of the full applicable policy limits of $[________]. This is a time-limited demand to settle within policy limits, open for [____] days. We request immediate written confirmation of all applicable liability, umbrella, and excess coverage. An insurer that fails in good faith to effectuate a prompt, fair, and equitable settlement where liability is reasonably clear acts contrary to W. Va. Code § 33-11-4(9), and we expressly reserve our client's right to pursue all remedies arising therefrom, including the administrative remedy under W. Va. Code § 33-11-4a.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. Statutory Claims-Handling Standards

We remind you of the insurer's obligations under the West Virginia Unfair Trade Practices Act, W. Va. Code § 33-11-4(9), including the duty to attempt in good faith to effectuate a prompt, fair, and equitable settlement where liability has become reasonably clear.

B. Policy Limits Disclosure

We request immediate written confirmation of:

☐ The liability coverage limits
☐ Any umbrella or excess policies
☐ Whether coverage is disputed
☐ UM/UIM coverage limits on all applicable policies

C. Reservation of Rights

This demand is without prejudice to all rights, including any first-party bad faith claim under Hayseeds and Jenkins, the administrative remedy under W. Va. Code § 33-11-4a, and all other available remedies.

VIII. LITIGATION WARNING

Should settlement fail, we will file suit in [________________________________] County Circuit Court, West Virginia. We will pursue full compensatory damages, prejudgment interest under W. Va. Code § 56-6-31, court costs, and all available relief.

IX. MEDICAL RECORDS AUTHORIZATION

Enclosed is a HIPAA-compliant authorization (45 C.F.R. § 164.508).

I, [________________________________], authorize the following providers to release records related to the collision on [__/__/____] to [________________________________] [Insurance Company]:

This authorization expires on [__/__/____] or upon final resolution, whichever occurs first.

Signature: _________________________________ Date: [__/__/____]
Printed Name: [________________________________]

X. ENCLOSED DOCUMENTATION

☐ Police/Accident Report
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Medical records and bills (itemized)
☐ Proof of lost wages
☐ Property damage estimates/invoices
☐ HIPAA-compliant medical authorization
☐ Expert reports (if available)
☐ Witness statements
☐ [________________________________]

XI. DOCUMENTATION CHECKLIST - CLAIMANT FILE

☐ Accident/police report obtained
☐ All medical records collected
☐ All medical bills itemized (billed and paid)
☐ Lost wage documentation obtained
☐ Property damage documented
☐ Witness statements preserved
☐ Injury photographs at multiple recovery stages
☐ Insurance policy information confirmed
☐ Personal injury SOL deadline calendared ([__/__/____] - TWO YEARS)
☐ Treatment completed or at MMI
☐ Future medical projections obtained
☐ Pain and suffering documentation maintained
☐ Insurance correspondence documented
☐ HIPAA authorization executed
☐ Demand sent certified mail
☐ Settlement authority confirmed with client
☐ Lien search completed (health insurer, Medicare/Medicaid, hospital)
☐ Bad-faith / UTPA documentation preserved for potential § 33-11-4a complaint

XII. WEST VIRGINIA-SPECIFIC PRACTICE NOTES

☐ Modified Comparative Fault (51% Bar): W. Va. Code § 55-7-13a - barred if plaintiff's fault is greater than 50% of total fault (post-2015 reform)
☐ Several Liability: W. Va. Code § 55-7-13c - joint and several liability abolished except for concert of action, DUI, criminal conduct, and hazardous waste
☐ Nonparty Fault: W. Va. Code § 55-7-13d - 180-day notice required to assert nonparty fault
☐ Two-Year Personal Injury SOL: W. Va. Code § 55-2-12(b) - calendar carefully
☐ Collateral Source Rule: Kenney v. Liston, 760 S.E.2d 434 (W. Va. 2014) - full billed amounts; collateral source evidence inadmissible
☐ Minimum Insurance 25/50/25: W. Va. Code § 17D-4-2; § 33-6-31 (raised effective 2015)
☐ Mandatory UM Coverage: W. Va. Code § 33-6-31 - required; optional UIM must be offered
☐ Third-Party Bad Faith Abolished: W. Va. Code § 33-11-4a - sole remedy is administrative complaint to Insurance Commissioner within ONE YEAR of discovery
☐ First-Party Bad Faith Preserved: Hayseeds (substantially prevail) and Jenkins (UTPA general business practice) - relevant to any UM/UIM component
☐ No Non-Economic Cap (auto): Cap under § 55-7B-8 applies only to medical professional liability
☐ Prejudgment Interest: W. Va. Code § 56-6-31
☐ Venue: Proper in the county where the cause of action arose or where any defendant resides

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[________________________________]
[Attorney Name]
West Virginia State Bar No. [________________________________]
[________________________________]
[Street Address]
[________________________________]
[City, West Virginia ZIP]
Telephone: [________________________________]
Email: [________________________________]

cc: [________________________________] [Client Name]
Enclosures: As noted above

SOURCES AND REFERENCES

• W. Va. Code § 55-7-13a (Modified Comparative Fault): https://code.wvlegislature.gov/55-7-13A/
• W. Va. Code § 55-7-13c (Several Liability; Fault of Parties and Nonparties): https://code.wvlegislature.gov/55-7-13C/
• W. Va. Code § 55-7-13d (Nonparty Fault): https://code.wvlegislature.gov/55-7-13D/
• W. Va. Code § 55-2-12 (Statute of Limitations - Personal Injury): https://code.wvlegislature.gov/55-2-12/
• W. Va. Code § 33-11-4 (Unfair Trade Practices Act): https://code.wvlegislature.gov/33-11-4/
• W. Va. Code § 33-11-4a (Third-Party Bad Faith - Administrative Remedy): https://code.wvlegislature.gov/33-11-4A/
• W. Va. Code § 33-6-31 (Uninsured/Underinsured Motorist Coverage): https://code.wvlegislature.gov/33-6-31/
• WV Insurance Commissioner - Auto Mandatory Limits (25/50/25): https://www.wvinsurance.gov/Consumer_Services_mandatory_limits
• WV DMV - Consumer Insurance Information: https://transportation.wv.gov/DMV/Vehicle-Services/Insurance/Pages/Consumer.aspx
• Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73 (W. Va. 1986)
• Jenkins v. J.C. Penney Cas. Ins. Co., 280 S.E.2d 252 (W. Va. 1981)
• Kenney v. Liston, 760 S.E.2d 434 (W. Va. 2014) (collateral source rule)
• Nolo - West Virginia Personal Injury Laws and Statutes of Limitations: https://www.nolo.com/legal-encyclopedia/west-virginia-personal-injury-laws-and-statutes-of-limitations.html