West Virginia Personal Injury Demand Letter

PERSONAL INJURY DEMAND LETTER — WEST VIRGINIA

FOR SETTLEMENT PURPOSES — EVIDENTIARY USE SUBJECT TO W. VA. R. EVID. 408

HEADER INFORMATION

SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Date: [__/__/____]

FROM:
[________________________________]
Attorney at Law
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]
West Virginia State Bar No.: [________________________________]

TO:
[________________________________]
Claims Adjuster / Claims Department
[________________________________] Insurance Company
[________________________________]
[________________________________]

RE: PERSONAL INJURY DEMAND

I. INTRODUCTION AND PURPOSE

This letter constitutes a formal demand for compensation on behalf of our client, [________________________________] ("Claimant"), for personal injuries and damages sustained as a direct and proximate result of the negligence of your insured, [________________________________] ("Tortfeasor"), on [__/__/____] in [________________________________], West Virginia.

This firm represents Claimant in all claims arising from this incident. All communications should be directed exclusively to this office.

If and to the extent this demand constitutes compromise negotiations concerning a disputed claim, W. Va. R. Evid. 408 limits specified uses to prove or disprove the claim's validity or amount or a party's liability, or to impeach by a prior inconsistent statement or contradiction. The rule preserves other-purpose use and otherwise discoverable evidence, and does not itself make this ordinary demand confidential or privileged.

WEST VIRGINIA COMPARATIVE FAULT: Under W. Va. Code §§ 55-7-13a and 55-7-13c, a plaintiff is barred only when plaintiff fault is greater than the combined fault of all other responsible persons; equality does not bar recovery. Compensatory liability is generally several, subject to the statute's conspiracy, joint-and-several, and reallocation provisions.

II. FACTUAL BACKGROUND

A. Pre-Incident Conditions

On [__/__/____], at approximately [____] [a.m./p.m.], Claimant was [________________________________] at or near [________________________________], West Virginia.

Weather: [________________________________]
Road conditions: [________________________________]
Lighting: [________________________________]
Traffic: [________________________________]

B. The Incident

[________________________________]
[________________________________]
[________________________________]
[________________________________]

C. Emergency Response

☐ Police called — Report No.: [________________________________]
☐ EMS responded — Report No.: [________________________________]
☐ Claimant transported by ambulance to [________________________________]
☐ Claimant sought treatment at [________________________________]
☐ Fire department responded
☐ Photographs taken at scene
☐ Witness statements obtained

D. Witnesses

E. Police Report

Officer [________________________________], [________________________________]:

• [________________________________]
• [________________________________]

☐ Citations to tortfeasor: [________________________________]
☐ No citations to Claimant

III. LIABILITY ANALYSIS UNDER WEST VIRGINIA LAW

A. Negligence Standard

West Virginia negligence requires:

1. Duty of care
2. Breach of that duty
3. Proximate cause linking breach to injury
4. Actual damages

B. Tortfeasor's Acts of Negligence

☐ Failure to maintain proper lookout
☐ Failure to yield right of way
☐ Following too closely (W. Va. Code § 17C-7-10(a))
☐ Distracted driving / texting (W. Va. Code § 17C-14-15)
☐ Excessive speed (W. Va. Code § 17C-6-1)
☐ Failure to obey traffic signals
☐ Improper lane change
☐ DUI (W. Va. Code § 17C-5-2)
☐ Reckless driving (W. Va. Code § 17C-5-3)
☐ Other: [________________________________]

C. Modified Comparative Fault (W. Va. Code § 55-7-13a)

West Virginia's statute provides:

• Plaintiff is barred from recovery only if plaintiff fault is greater than the combined fault of all other responsible persons
• Equality does not bar recovery; any allowed recovery is reduced by the plaintiff's percentage of fault
• The jury determines each party's percentage of fault

Claimant bears NO fault. The tortfeasor is 100% responsible.

D. Several Liability and Exceptions (W. Va. Code § 55-7-13c)

Each defendant is generally liable only for compensatory damages proportionate to that defendant's fault. Joint or joint-and-several liability may arise for conscious conspiracy and the conduct listed in subsection (h), and subsection (d) provides a limited postjudgment reallocation process for an uncollectible share.

E. Collateral Source Rule

West Virginia protects the collateral source rule:

• A defendant cannot reduce liability by pointing to compensation the plaintiff received from independent sources
• This includes health insurance, disability insurance, first-party medical benefits, and underinsurance benefits paid under contractual arrangements independent of the tortfeasor

F. Negligence Per Se

Statutory violations:

• W. Va. Code § [________________________________]: [________________________________]
• W. Va. Code § [________________________________]: [________________________________]

IV. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

Primary Diagnoses:

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

Secondary/Associated Conditions:

• [________________________________]
• [________________________________]

B. Injury Checklist

☐ Traumatic brain injury / Concussion
☐ Cervical spine injury (herniation / bulge / fracture)
☐ Thoracic spine injury
☐ Lumbar spine injury
☐ Shoulder injury (rotator cuff / labral tear)
☐ Knee injury (ACL / MCL / meniscus)
☐ Hip injury / fracture
☐ Rib fractures
☐ Extremity fractures
☐ Facial lacerations / scarring
☐ Internal organ injury
☐ Soft tissue injuries
☐ Nerve damage / radiculopathy
☐ PTSD / anxiety / depression
☐ TMJ dysfunction
☐ Other: [________________________________]

C. Chronological Treatment History

D. Diagnostic Imaging

E. Surgical Procedures

F. Prognosis

Treating physician [________________________________]:

• [________________________________]
• MMI: ☐ Reached [__/__/____] ☐ Not yet reached
• Impairment rating: [____]%
• Future treatment: [________________________________]
• Future medical costs: $[________________________________]

V. DAMAGES CALCULATION

A. Economic Damages (No Cap in General PI)

This general personal injury demand does not apply the medical professional liability noneconomic-loss limits. If the claim is a professional liability action against a health care provider, W. Va. Code § 55-7B-8 sets occurrence-based noneconomic limits, including for wrongful death, subject to the statute's inflation adjustment, ceiling, and insurance condition. Determine the applicable claim category before using an uncapped amount.

B. Non-Economic Damages (No Cap in General PI)

C. Total Damages Summary

VI. INSURANCE COVERAGE ANALYSIS

A. Tortfeasor's Liability Coverage

West Virginia Auto Insurance Minimums (W. Va. Code § 17D-4-2):
- $25,000/$50,000 bodily injury; $25,000 property damage (25/50/25)

B. UM/UIM Coverage

West Virginia requires minimum uninsured motorist coverage in covered motor vehicle policies under W. Va. Code § 33-6-31(b). Higher UM limits and underinsured motorist coverage are offered as optional coverages under §§ 33-6-31 and 33-6-31d. Confirm the issued policy and any election or rejection before claiming UIM benefits.

C. MedPay

VII. PREJUDGMENT INTEREST

Under W. Va. Code § 56-6-31(b), a court may award simple prejudgment interest on all or some eligible special or liquidated damages, calculated after settlements. Special damages include lost wages and income, medical expenses, damage to tangible personal property, and similar out-of-pocket expenditures as determined by the court. Do not assume the interest applies to the entire demand.

Interest Rate Calculation

The rate is two percentage points above the Fifth Federal Reserve District secondary discount rate in effect on January 2 of the year the right to bring the action accrued.

Limits:

• Minimum: 4% per annum
• Maximum: 9% per annum
• Type: Simple interest (not compounding)

VIII. PUNITIVE DAMAGES

Applicability (W. Va. Code § 55-7-29)

Punitive damages require clear and convincing evidence that the defendant caused the claimed harm through actual malice toward the plaintiff or conscious, reckless, and outrageous indifference to others' health, safety, and welfare.

Statutory Cap

Punitive damages are capped at the greater of:

• Four (4) times the amount of compensatory damages; or
• $500,000

☐ Punitive damages sought: [________________________________]
☐ Punitive damages not sought at this time

IX. SETTLEMENT DEMAND

SETTLEMENT DEMAND: $[________________________________]

Terms:

1. Payment within thirty (30) days of receipt
2. Certified funds to [________________________________], Attorney Trust Account
3. Full and final release upon payment
4. Inclusive of all claims from the incident
5. Excludes first-party insurance claims

X. STATUTE OF LIMITATIONS AND RESERVATION OF RIGHTS

Statute of Limitations

Under W. Va. Code § 55-2-12, the SOL for personal injury is two (2) years.

Discovery Rule: The SOL may be tolled under the discovery rule where the plaintiff did not know and could not have reasonably discovered the injury.

Reservation of Rights

Claimant reserves all rights, including filing suit, amending damages, pursuing punitive damages (up to 4x compensatory or $500K), pursuing UM/UIM claims, seeking prejudgment interest on special damages, and all other remedies under West Virginia law.

WARNING: If this demand is not accepted, Claimant will file suit and pursue the damages and remedies supported by current West Virginia law. Fault allocation, collateral-source issues, and prejudgment interest must be evaluated under the facts and controlling statutes.

XI. MEDICAL RECORDS AND EXHIBITS INDEX

☐ Emergency department records
☐ Ambulance / EMS report
☐ Hospital records
☐ Primary care records
☐ Specialist records
☐ Physical therapy records
☐ Chiropractic records
☐ Mental health records
☐ Surgical records
☐ Imaging reports
☐ Prescription records
☐ Medical narrative report
☐ Itemized bills
☐ EOBs
☐ Employer wage verification
☐ Tax returns
☐ Police report
☐ Photographs (scene, vehicle, injuries)
☐ Witness statements
☐ Property damage documentation

XII. SIGNATURE

Respectfully submitted,

[________________________________]
Attorney for Claimant
West Virginia State Bar No.: [________________________________]

[________________________________]
Firm Name
[________________________________]
Address

Telephone: [________________________________]
Email: [________________________________]

Date: [__/__/____]

XIII. SOURCES AND REFERENCES

West Virginia Statutes

• W. Va. Code §§ 55-7-13a, 55-7-13c — Modified comparative fault and generally several liability
• W. Va. Code § 55-2-12 — Statute of limitations (2 years)
• W. Va. Code § 55-7B-8 — Medical professional liability noneconomic caps; statutory base amounts are adjusted annually for inflation
• W. Va. Code § 55-7-29 — Punitive damages cap (4x compensatory or $500K)
• W. Va. Code § 56-6-31 — Prejudgment interest (variable rate, 4-9%)
• W. Va. Code § 17D-4-2 — Auto insurance minimums (25/50/25)
• W. Va. Code § 33-6-31(b); § 33-6-31d — Minimum UM coverage and offer of optional higher UM/UIM coverage
• W. Va. Code § 55-7-5 et seq. — Wrongful death
• W. Va. Code § 17C-5-2 — DUI
• W. Va. Code § 17C-14-15 — Texting while driving

Key West Virginia Principles

• Modified comparative fault: recovery allowed at 50%; barred only above 50%
• Generally several liability, subject to statutory conspiracy, joint-and-several, and reallocation provisions
• No cap on compensatory damages in general PI
• Medical professional liability noneconomic limits: § 55-7B-8 states $250,000 and, for the subsection (b) injuries including wrongful death, $500,000 base amounts per occurrence. Subsection (c) adjusts them annually for inflation, up to 150% of those base amounts; subsection (d) conditions a defendant's use of the limits on the specified insurance coverage.
• Punitive damages capped at greater of 4x compensatory or $500K
• Prejudgment interest on special damages (4-9% range)
• Collateral source rule protects plaintiff's recovery
• Auto minimums: 25/50/25
• 2-year statute of limitations
• West Virginia is a fault-based tort state

This template does not constitute legal advice and must be reviewed by a licensed West Virginia attorney before use.