Virginia also has a doctrine – which judges hate but insurance companies love – that says that if a driver is confronted with a “sudden emergency” that causes the accident, the driver is not liable, and the injured person does not get compensated. The Virginia Supreme Court recently decided a case – Herr v. Wheeler, 272 Va. 310, 634 S.E.2d 317 (2006) – that stands for the proposition that the “sudden emergency” instruction should be given MUCH less often than it is. Our job is two-fold – to beat this defense on the facts, and to beat it on the law. Some representative cases that we have handled:
- WS was driving a truck on the Interstate highway on a cold morning. There had been snow the night before, and there was ice on the roadway. The driver of a car pulled out to pass him, and in the fast lane, she hit ice and slid across the road in front of WS. WS crashed into her, and then into the retaining barrier. The defense was that the car driver was confronted by a “sudden emergency” when she began to slide on the ice, so she should not be blamed for the fact that her car caused WS to crash. In this case, unfortunately, the “sudden emergency” defense was successful.
- AR was in a vehicle that was rear-ended by a truck whose driver claimed that she could not stop because her brakes didn’t work. She had had her brakes serviced 6 weeks before by a competent, certified mechanic, and the truck had worked fine since the service. After the accident, her husband was able to drive the truck away without any problem. The brakes were never serviced after the accident. Three years later, the insurance company got an traffic safety engineer to testify that she had experienced “brake fade,” and so it was not her fault. We got an actual mechanic with experience working on this kind of truck who was prepared to testify that if there had truly been “brake fade,” the brakes would have been badly damaged and any driver — including the driver here and her husband, who drove the car after the accident — would have recognized that fact. Our mechanic was also prepared to testify that the grade on the road where the crash occurred was not as severe as a road that everyone of the jurors would have had to have traveled on to get to the courthouse. If the insurance company expert was right, therefore, any juror who drove to the courthouse would have been likely to have experienced brake failure and would likely have crashed. Once we presented our expert opinion, the insurance company withdrew their defense.
We have experience in dealing with this nonsense, too. Call us at 434-293-8185.
