Jon Montagna - Personal Injury Law Firm | Lawyers | Disability

What to Do if Your Recalled Vehicle Was in an Accident

Written by Jon Montagna on April 27, 2023. Posted in Auto Accident.

In February 2023, Tesla recalled over 360,000 cars because of a major flaw with their full self-driving systems. This recall is important because a recalled vehicle is a hazard to its occupants and whoever shares the road with it. You may be entitled to compensation if you are in a crash caused by a recalled vehicle or if your injuries are more severe due to a vehicle defect. At Montagna Klein Camden, our experienced Virginia car accident attorneys can assist you in understanding the steps you need to take after a recalled vehicle accident and help you fight to receive the compensation you deserve.

What is a Vehicle Recall?

The National Highway Traffic Safety Administration is the government agency responsible for issuing national vehicle safety standards. Its regulators also investigate reports of defective vehicles and equipment and define what a vehicle recall is and what requirements fall on the manufacturer.

Essentially, a vehicle recall is when the motor vehicle manufacturer or the NHTSA determines that a specific vehicle or some aspect of that vehicle creates some type of unreasonable safety risk.

Once a vehicle is considered unsafe for any reason, the car manufacturer must take responsibility and either repair the problem or make a replacement. Other options include offering each owner a refund or, in extreme cases, undergoing a vehicle repurchasing process.

Some of the most recent recalls involve faulty airbags, car seats, and ignition switches. Acceleration issues are also at the center of a recent recall. Other issues that can develop include inadequate seatbelt design and the need for a software update.

A notice of a recall will normally be sent to all known purchasers of the vehicle. Within the notice, the particular issue will be explained, as well as the potential dangers and crash risks. It also tells the recipient how to seek repair or replacement.

Other ways a recall is shared with the public is through publication online, in trade journals, and in some instances, the general media. You may even take your car in for routine maintenance and be alerted about a recall by your mechanic.

Who is Liable if a Recalled Vehicle Causes a Crash?

If a recalled vehicle causes a crash, the case becomes complicated quickly. The facts surrounding whether the car has an active safety recall in place, whether the driver knew of the recall or defective part, and more will factor into determining who is liable.

If there is an active recall, however, and an accident occurs as a result, here is what you need to know about liability.

At-Fault Driver

Part of the proceedings will determine the extent to which the defect that is the subject of a recall was to blame for the accident. If a driver also contributed to the accident through negligence or reckless driving, such as exceeding speed limits or running a stop sign, they may be partially liable.

In such a case, the process involved is complex and time-consuming. It will require a thorough investigation to ascertain if and how much a driver contributed to the accident.

In some cases, a person can sustain injuries in an accident where the at-fault driver is unaware of a defective auto part within the vehicle. If this happens, the injured person may never be able to prove negligence on the part of the driver of that defective car in Virginia. In other words, if the other driver did not do anything negligent, such as excessive speeding or dangerous driving, and the unknown defect in their vehicle caused the accident, you cannot sue them.

Driver of Recalled Vehicle

The driver of the defective vehicle may be partially or fully liable depending on whether they knew of the recall and its safety issues and had reasonable time to respond to that recall.

Motorists, in general, have the responsibility to maintain vehicle safety. As such, when vehicle owners receive a notice of a recall, they are responsible for acting on it and scheduling the repair or other remedy as soon as possible. If they fail to do so, liability can fall on them when involved in an accident.

Factors that will be considered include the following.

Proof that the vehicle recall notice was sent to the vehicle owner
Amount of time between the receipt of the recall notice and the accident, showing whether there was a reasonable amount of time for the owner to attend to the issue prior to the crash
Whether the information in the recall notice was clear and thorough, including steps for the vehicle owner to take
The extent of the identified vehicle defect and its role in causing the accident

Vehicle Manufacturer

Manufacturer liability depends on several factors, including the extent to which the defect was responsible for the accident and whether a recall was issued for that defect. If so, you may be able to sue the manufacturer with a product liability claim.

Product liability occurs when an individual is harmed by a product, such as a vehicle with a defective part, resulting in the potential to sue the manufacturer and others in the distribution chain.

Recall accident lawsuits are extremely expensive and difficult to bring due to all the factors involved. The manufacturer will likely be the main target of these lawsuits, although the dealership that sold you the car may also be sued. In reality, the driver would have to suffer serious injuries to warrant going forward with this type of lawsuit.

If you have questions surrounding whether you should sue a vehicle manufacturer, contact Montagna Klein Camden for a consultation.

What if a Defective Car Crashes, But There is No Vehicle Recall?

When purchasing a vehicle, you, as the buyer, have the right to expect that it is safe to drive and not defective in any way. You also have the right to expect your new car or truck to conform to the stated warranty and meet all state and federal safety standards.

If a defect in your vehicle causes an accident, but there is no recall for that defect, the vehicle manufacturer may be liable for your damages. As a car accident victim, you may be able to receive compensation for your medical recovery and any wages lost due to the accident.

What if the Vehicle is Recalled After the Accident?

Vehicle recalls often happen after the defect has caused several car accidents. If this happens to you, your next steps will largely be determined by what you have already filed for the car crash and what compensation for damages and injuries you included in that filing.

Usually, accident victims will file an insurance claim for injuries or property damage. Some may even pursue legal action against the vehicle’s manufacturer when a defective part appears to be responsible for the crash.

If a recall for your vehicle is issued after an accident, speak with an experienced Virginia car accident attorney to understand your options and how to move forward with your claim.

How Do I Check if My Vehicle Has Been Recalled?

You can easily check if your vehicle has been recalled by checking NHTSA’s recall page and searching for your vehicle by VIN (Vehicle Identification Number), make, or model. You can also go to your local dealership for the brand of vehicle you own and ask or check directly with the vehicle manufacturer.

As a precautionary measure, you may also choose to receive recall alerts. This can be accomplished by downloading a free app from the NHTSA’s website or signing up for email alerts.

Once issued, a recall never expires, and all affected vehicles remain eligible until a repair or replacement occurs.

What to Do After You Get in an Accident with a Recalled Vehicle

If you or your loved one is involved in an accident with a recalled vehicle, follow these steps.

1. Seek Necessary Medical Attention

As with any type of accident, immediately seek medical attention for yourself and any injured passengers. Determine the extent of any injuries, and request emergency first responders if they are serious. Not only will this benefit your health, but it can also provide personal injury documentation for your insurance claim or case if you decide to file a lawsuit.

2. Call the Police

Following an accident, call the police. Once law enforcement arrives, they will interview you, your passengers, and the other driver before creating a police accident report. Avoid accepting blame for the accident and only provide facts about what happened. The filed police report will be another crucial part of your claim or case.

3. Preserve Evidence

To benefit your insurance claim and a potential lawsuit, preserve all evidence as much as possible after the car crash occurs. Be sure to exchange insurance information with the other driver, take photos of the damage, and obtain the contact information of any witnesses to the accident. Keep these in a safe place.

Also, it is extremely important not to get the defective part repaired immediately. You will want evidence that it exists and was at least partially responsible for the accident.

Vehicle recall accident cases place great importance on you retaining your vehicle in its unaltered state following the accident. Your case will rely heavily on expert witnesses and forensic studies of the vehicle to make sure the recalled part was the cause of the accident.

4. Contact Your Insurance

You will want to notify your insurance of your accident as soon as possible so they can begin their investigation. This investigation is an important part of any insurance claim.

5. Contact an Experienced Virginia Car Accident Attorney

Being in an accident with a recalled vehicle does not grant you the automatic right to make a claim and receive compensation. Negligence must still be proven. For help, seek legal advice from a trusted Virginia car accident attorney.

Your attorney can negotiate with insurance companies, prove fault wherever it lies, and help you receive the settlement you deserve.

We Fight for Your Compensation

Auto accident cases can be complex, and when they involve a recalled vehicle, those complexities can increase. Our Virginia accident attorneys at the Montagna Klein Camden law firm are highly knowledgeable in the laws surrounding recalls and vehicle accidents and will fight for the compensation you deserve.

Call our office today at 757-622-8100 to request your free consultation or submit our online contact form. We proudly serve the entire Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk.

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Virginia Estate Planning Cost and Fees

Written by Jon Montagna on April 3, 2023. Posted in Estate Planning.

Whether you are a young adult newly turned eighteen or older, deciding to create an estate plan can benefit both yourself and any current or future heirs. Even if you think you have too few assets, creating a basic estate plan allows you to decide who cares for your medical and financial decisions if you become incapacitated instead of leaving it up to the state. Working with a Virginia estate planning attorney is for everyone, not just those with exorbitant assets. If you are looking to set up your estate plan and require assistance, contact the experienced Virginia estate planning attorneys at Montagna Klein Camden by calling 757-622-8100 or filling out our convenient online contact form.

Why is Estate Planning Important?

Creating an estate plan is important for several reasons. One is to avoid probate, where the courts could hold your assets for years before being distributed based on Virginia intestacy laws. If this happens, your beneficiaries will have to wait for the probate process to complete, which can be both challenging and frustrating for all involved. It can even cause family disputes, strife, and a legal war that can tear your family apart.

Another reason for having an estate plan is to know that your heirs and beneficiaries will receive what you want them to rather than what the state decides to give based on the law. Establishing your wishes for asset distribution can provide you with peace of mind that what you own goes to those you choose.

For married couples or single parents with minor children, an estate plan allows you to put in place protective measures, such as naming a guardian for each underage child or setting up a special needs trust.

Estate planning is also important to help minimize income, estate, and gift taxes. With efficient estate and tax planning, taxes and other costs can be minimized, protecting the value of your assets and the interests of your beneficiaries.

What Will an Estate Plan Cost in Virginia?

The costs involved in the estate planning process can differ for each individual. The first step begins with understanding what your estate includes and other factors directly related to a plan’s preparation.

What Factors Affect the Cost?

The price of an estate plan will depend on several individual factors, including the size, complexity, and location of your estate. The number of documents required to meet your particular needs adequately will also matter.

Size of Estate

In most instances, the size of the estate will be the first clue as to how involved an estate plan will need to be. The smaller the estate, the less time and expense will be needed. The larger the estate, the more time, paperwork, and adherence to legal procedures will be necessary to create a thorough plan.

Complexity of Plan

How complex a plan needs to be can also affect the costs involved. With higher complexity, such as with those estates that include various investments, stocks, bonds, and even businesses or real estate, more resources and time will be necessary to plan for correct distribution.

Location of Estate

When an estate includes assets that cross state or country borders, those locations where assets reside can complicate matters. A more costly plan to protect and efficiently distribute assets might be required in such cases.

Documents Included in Your Plan

Costs will also relate to the number of legal documents you need to include in your estate plan. The more documents you need, the more likely the fee will increase. Your estate planning lawyer can provide legal advice and recommend what document combination will offer you the most protection and ease of distribution upon your death. You may need a last will and testament and power of attorney or require more, such as a revocable trust to provide a higher level of asset protection.

Virginia law offices often have different payment options, including a flat fee for some types of estate planning and an hourly rate for others. We will work closely with you to find the right choice or solution for your needs and budget.

How Long Does Probate Take in Virginia?

While state laws differ, in Virginia, probate can take anywhere between a few months to years for an estate to be settled. For an average estate, you can expect it to take at least six months. Smaller ones may take less time, and larger ones can go on for several years.

Due to the lengthy process times, it is best for everyone involved to avoid probate altogether when possible. Your attorney can help by recommending estate planning methods to keep your estate out of the courts and efficiently handled without undergoing probate.

There are also steps you can take on your own. For example, if you have insurance policies, you can set up beneficiaries to avoid the need to include these in the probate process.

Common Documents to Include in Your Virginia Estate Plan

If you are going to make an estate plan, consider including these four essential estate planning documents.

Power of Attorney

A financial power of attorney is a document that authorizes a designated individual to manage your finances if you should become incapacitated. Within this durable power of attorney, you can give this trusted person full responsibility or specify what types of financial matters or transactions the named person is authorized to handle. Upon your death, this legal document is no longer valid.

Living Trust

A trust is a way to manage and pass your assets to your beneficiaries. It allows you to remove assets from under your name and place them under the trust, where you still manage them. Upon your death, the trustee will distribute the trust assets to your chosen beneficiaries. A revocable living trust is a private estate planning tool and usually will not need to go through probate.

Will

One of the most important documents in an estate plan is your will. Having a living will allows for a clear direction of who receives your assets, so it is not up to Virginia’s intestate laws to decide. Depending upon your situation, you may need a simple will or, if you also have a trust, a pour-over will.

Advance Medical Directive

An advance medical directive is a document that allows you to express what type of medical care you want if unable to make healthcare decisions for yourself. Within the document, you will appoint an individual to follow those directives.

Benefits of Using an Attorney Over DIY Estate Planning

With the increasing ability to find estate planning tools online, you may be wondering what the benefits are to using an attorney instead.

Working with an attorney can provide you with access to their knowledge of the laws and the type of documents you need for your particular estate, as well as peace of mind that you have arranged everything in the best legal way possible for your loved ones and beneficiaries. You can help them avoid an estate tax, the probate process, and more. Start by scheduling a consultation for estate planning services to determine what is best for you.

An Estate Plan is For Everyone, No Matter Your Assets

Wherever you are in your life, making time to prepare an estate plan that meets your needs and wishes can create peace of mind while also helping to avoid challenges and disputes among beneficiaries in the future. An estate plan is for everyone, regardless of assets, and does not have to be a burden.

Contact us today at the Montagna Klein Camden law firm by calling 757-622-8100 or using our online contact form. We proudly serve the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk.

How Many Will Executors Should You Appoint?

Written by Jon Montagna on March 30, 2023. Posted in Estate Planning.

According to a 2018 study by EstateExec, it takes, on average, 16 months and about 570 hours of work for an executor to settle an estate. With so much time and energy required for the position, you may wonder whether it would be possible to appoint multiple people. While naming multiple people as executors of your estate is possible, doing so can create more problems than it solves. Speak with our experienced Hampton Roads trusts and wills attorneys at Montagna Klein Camden to decide who should execute your will.

How Many Executors Can You Have?

One of the most crucial decisions you can make in your estate planning is the selection of a trusted executor of your will. This chosen executor will be responsible for following your expressed wishes and distributing assets.

You can, however, name two or more people to be co-executors of a will (or joint executors), but doing so can create problems in the will’s execution. All co-executors must act unanimously, which can cause delays and conflict if disagreements arise. Such disputes can result in a higher chance of litigation, which can add time and deplete the estate’s assets.

Likewise, if one or more executor lives out of state or is less responsive in handling your affairs, that can significantly impact proceedings. Naming more than one executor also creates confusion among your beneficiaries as to who they need to approach with any questions or concerns about the administration of the estate.

How Should I Pick My Executor or Co-Executors?

Your executor is responsible for handling your affairs after you die, including filing your will with the Virginia probate court under state law, distributing your assets as outlined in your will, managing financial and bank accounts, filing tax returns, and paying off your debts. You want to choose someone you trust to complete the duties of an executor and follow your wishes. An executor can be an adult child, family member, friend, attorney, or other professional, but you must choose wisely.

Look for those who can accept responsibility and will see the process through to the end in the best way possible for your loved ones. This responsibility may include hiring outside help, such as an attorney, to help with probate, effectively communicating with your beneficiaries, and retaining the ability to make difficult decisions if needed.

Co-executors do not have to live nearby or even in the same state, but if they do, it will make the day-to-day responsibilities and probate process more manageable. Also, consider how the named parties are perceived by other beneficiaries, such as sibling rivalry, and try to avoid creating unnecessary drama in the execution of your will if at all possible.

Serving as an estate co-executor can be emotionally draining and challenging, so consider this while making a will and choosing parties that can move beyond that and do what is right by you.

What Are the Pros and Cons of Naming Co-Executors?

While naming co-executors is acceptable, it can lead to a messy administration of your estate and lead to disputes among family members and any other parties that may be beneficiaries. If you, as the testator, still wish to name co-executors, consider the following pros and cons.

Pros

Some of the pros or advantages of having co-executors are:

Splitting up the responsibilities of the position so that no one is overwhelmed
Holding each other accountable to their fiduciary duties
Avoiding the appearance of favoritism among your children
Dividing the tasks according to the knowledge and strengths of each executor, such as acknowledging that one has real estate experience while the other has financial experience or an understanding of business matters

Every situation is unique, so examine your circumstances to determine if naming more than one executor is right for you.

Cons

Some of the cons of naming co-executors are:

The risk of conflict between co-executors that may need to be settled in court
The risk that each co-executor is liable for the actions of their co-executors if they violate their fiduciary duties
The possibility that one of the co-executors is unresponsive and delays proceedings
The risk of family conflict

Weigh these potential disadvantages and consequences against your particular situation before choosing multiple executors. Any of these can delay the administering of your estate and lead to frustration on all sides.

When Does It Make Sense to Have Multiple Executors?

There are some circumstances where having multiple co-executors can be valuable. For example, if you own a business, you might name your business partner or lawyer as co-executor with your spouse. This way, your spouse can focus on the parts of your estate that deal with personal property, assets, and their beneficiaries. The co-executor can handle the more business-oriented decisions.

Another circumstance that may benefit from having more than one executor is if you worry about your spouse’s ability to handle sole responsibility for your will. In such a case, you might want to name a co-executor to offer your spouse assistance in administering the estate, which can also provide you with peace of mind.

Your particular circumstances may involve other relevant reasons for naming multiple executors, and an experienced Virginia estate planning attorney can provide legal advice to help.

What Are the Alternatives to Naming Multiple Executors?

If you are worried about the potential conflict and delay caused by co-executors, a beneficial option is to name an alternate executor.

The primary executor of a will does not need to obtain the alternate executor’s approval. Still, if they are unable or unwilling to fulfill the job’s duties, the alternate executor can succeed them and take on the role. You can name a first alternate and a second alternate if you wish.

Choosing alternates is another way to avoid family disputes. Start by sitting down with all your children and honestly discussing why you are naming one or more as the primary executors of your estate. Ask for their input on who should be named as an alternate executor if something prevents the primary executor from fulfilling the job.

Delegate Responsibly and Rest Assured

Estate planning is important to everyone’s life. By delegating responsibly, you can rest assured that your executor will meet your wishes and desires. For help in planning and designating an executor or co-executors for your last will and testament, let the experienced lawyers with the law firm of Montagna Klein Camden help. Call us today at 757-622-8100 to schedule a consultation or use our online contact form. We provide dedicated legal services throughout the Hampton Roads area, including Virginia Beach, Norfolk, and Chesapeake.

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Understanding the Types of Trusts in Virginia

Written by Jon Montagna on March 29, 2023. Posted in Estate Planning.

Whether you are just beginning your estate planning journey or seeking to expand your plans to protect your children and other beneficiaries, creating a trust might be your next step. However, there are several different types of trusts, and you should carefully consider your options when designing the correct one to protect your interests and those of your beneficiaries.

The experienced estate planning attorneys at Montagna Klein Camden are here if you need help with your will, trust, or other estate planning concerns. We can help with legal advice and guidance on deciding how to move forward to protect your family members best.

What is a Trust?

A trust is a legal document that protects the assets in your estate. The trust is a legal entity that becomes the legal owner of the property placed into it. You can use it to avoid specific levels of estate taxes and the probate process. Trusts provide additional legal protection for your assets beyond your last will and testament.

Trust assets can be added to while you are living, incapacitated, or even after you have passed. Each trust has three components: the grantor, the trustee, and the beneficiary.

The grantor is the person who creates the trust and sets the terms of the trust. The grantor is also sometimes called the trustor or settlor.

A trustee is a person who has conservatorship of the trust property and possesses a fiduciary responsibility to abide by the terms of the trust document. The trustee observes and carries out the grantor’s desires. Married couples often list each other as co-trustees. In other cases, an inter vivos trust can allow the trustor to appoint a trustee to receive benefits on the trustor’s behalf while they are still alive.

Finally, the beneficiary is the person or persons who the trustor or settlor intends to benefit from the trust assets. Beneficiaries can be minor children, family members, or any loved ones you wish.

For example, a person about to pass away may want to see their minor children protected and avoid some level of federal estate tax and probate court. They can create a trust and place some of their assets into it, appointing their surviving spouse as the trustee to manage the funds on behalf of the children, the beneficiaries, until they turn 18. At this point, the assets in the trust pass entirely to the children.

You can place any assets and real property into a trust, even real estate.

What Is the Difference Between a Revocable Trust and an Irrevocable Trust?

Revocability is a characteristic of a trust. That is to say, a trust can be revocable or irrevocable, depending on the type of trust you decide to set up.

Irrevocable Trust

An irrevocable living trust cannot be canceled or changed after being created unless the beneficiaries sign off on any modifications. Typically, irrevocable trusts are not subject to estate taxes because the trust is a legal entity that serves as the owner of the property placed into it rather than granting ownership of the property to the decedent. This change in ownership grants a degree of tax exemption. These trusts are permanent and last for the life of the trustor and beyond. Virginia state laws are very strict about challenging or amending an irrevocable trust.

Revocable Trust

A revocable trust or revocable living trust allows for changes. You can change the trustee, beneficiaries, property, any instructions for asset distribution, and even the overall existence of the trust itself. With a revocable trust, you must name a successor trustee to take over responsibility if you die or become incapacitated. Because the property in a revocable trust remains under the trustor’s ownership rather than being owned by the trust, it is subject to estate and applicable income tax. Revocable trusts can last however long you wish them to last. You can cancel them at any time. If your revocable trust lasts until you die, it becomes irrevocable under Virginia law.

Benefits of Creating a Trust in Virginia

Creating a trust can benefit both those with large and small estates. Some of the benefits of creating a trust in Virginia include potentially avoiding the probate process, reducing tax obligations, protecting your legacy, and helping your beneficiary loved ones receive the care and property you wish.

Because a trust can allow you to avoid probate, you can pass assets much quicker and easier to surviving loved ones. The tax shelter that a trust can provide can make passing your estate assets more cost-effective for your beneficiaries. Trusts can also set specific requirements for how assets are delivered. The typical distribution is that a particular amount of money or specific goods is provided regularly, such as annually, until the beneficiary reaches a predetermined age or condition. At this point, they get the rest.

Trusts can also provide for specific anticipated needs. For example, you can set up a trust to pay for a minor child’s future college education.

Finally, unlike your last will and testament, which is a matter of public record, a trust can protect your privacy. Trust documents are private, and neither the assets they contain nor their distribution is a matter of public record.

Most Common Types of Trusts You Can Establish

Under Virginia state laws, there are several types of trusts. Each has different purposes, benefits, and goals.

Charitable Trust

A charitable trust, or charitable remainder trust, is established for the benefit of a specific charity. The trustor determines how the trustee will use the assets placed into the trust to support the charity for which it is created. Charitable trusts can also protect your assets from estate or gift taxes.

Special Needs Trust

Special needs trusts, also called supplemental needs trusts, are designed to provide for the needs of someone with physical or mental disabilities while protecting their eligibility for certain federal benefits such as Medicaid and social security. Normally, if a person with a disability receives a large inheritance, it could increase their income such that it may interfere with Medicaid or SSDI eligibility. A trust protects against that because the trust is the legal entity that owns the property. The trust supports the person with the disability.

Asset Protection Trust

Asset protection trusts are also known as spendthrift trusts. These are designed to protect the beneficiary’s assets against future claims or creditors so the assets are not squandered. Such trusts are usually deemed irrevocable for a fixed period determined by the trustor when they create the trust. After the stated period of irrevocability ends, the trust can be terminated, and the remaining assets can be returned or delivered according to the instructions within the trust.

Testamentary Trust

A testamentary trust is set up by a decedent’s last will and testament after their death. These types of trusts can be simpler and more flexible to set up than many other types. You can also change them at any time up until you die. Because the trust only comes into existence after you die, however, it can also be subject to estate taxes.

Retirement Trust

A retirement trust allows you to place retirement accounts into a trust. The trust offers the tax benefits of a standard retirement account and the asset protection benefits of a trust. Retirement trusts can help assist spendthrift beneficiaries in not squandering an inheritance. This type of trust shelters against divorce proceedings, protects against lawsuits, shields assets from bankruptcy, and safeguards disability assistance.

What Kind of Trust is Most Common?

The type of trust we see most often at Montagna Law is the spendthrift trust. This is because many parents are genuinely concerned about children squandering their inheritance quickly on luxuries and unnecessary items instead of using the money to live comfortably for as long as possible. A spendthrift trust allows a degree of asset protection and peace of mind. While supporting the beneficiaries, the trust will do so in a manner that the trustee considers responsible per the trust’s original intent.

Why Use an Attorney for Estate Planning in Virginia?

Estate planning can be complex and filled with some of your most important decisions. Without the proper guidance, it is fraught with pitfalls and errors that can be very costly. Our estate planning attorneys can offer advice, set up trusts to protect your assets, and assist in protecting your legacy. From life insurance to trusts to power of attorney, our Hampton Roads attorneys can help your estate get passed on as you wish.

What Kind of Trust Do You Want to Set up?

As you consider the type of trust you want to set up, our experienced attorneys at Montagna Law are here to help you make the right decisions and distribute your assets properly. If you want more information, legal guidance, or advice on trusts and estate issues, call us today at 757-622-8100 or use our online contact form to speak with a team member.

13 Common Special Needs Trusts Mistakes to Avoid

Written by Jon Montagna on March 27, 2023. Posted in Family Law.

If you are caring for a disabled loved one and do not have a special needs trust in place, you are not alone. According to a 2011 survey conducted by the MetLife Center for Special Needs Planning, nearly four in every five caregivers have not established a special needs trust.

Unfortunately, failing to set up this type of trust — or making mistakes in its execution — could leave your loved one or family member financially vulnerable after your death. A special needs trust (sometimes called a supplemental needs trust) can ensure that your loved one maintains their quality of life without risking their eligibility for certain public benefits like Medicare and Medicaid.

Below, we discuss how to avoid these common mistakes while planning for your loved ones. At Montagna Klein Camden, our experienced Virginia special needs trust attorneys can guide you through the legal intricacies of these unique trusts to prepare for the best possible care for your loved one.

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What Are the Most Common Mistakes When Planning a Special Needs Trust?

There are several rules surrounding the creation and administration of special needs trusts, and making a drafting mistake — even a seemingly minor one — could invalidate the entire trust. Virginia Code Title 64.2, Subtitle III, Chapter 7 sets out the legal requirements that trusts must meet to be enforceable.

In our experience, the worst repercussion is that the special needs trust ends up being drafted in a manner that makes the beneficiary lose their Supplemental Security Income (SSI) benefits and Medicaid benefits. Another terrible repercussion is the use of Crummey Powers or HEMS standard in a special needs trust that would end up defeating the purpose of this trust.

It is crucial to seek legal advice from a law firm with experience drafting and administering special needs trusts, or SNTs. Below, we explain 13 of the most common mistakes we see, why they matter, and how you can avoid them.

1. Not Making a Special Needs Trust

Sometimes, parents of a disabled child will leave assets to non-disabled beneficiaries with specific instructions to use these assets to care for their disabled loved one. Unfortunately, these instructions may not be enforceable once the will is probated, and this can result in inadequate care for the disabled beneficiary.

Moreover, if the non-disabled beneficiary has debts sent to collections, gets divorced, or winds up in hot water with the IRS, the assets you intended for your disabled child’s care may wind up with the beneficiary’s creditors instead.

2. Failure to Update Beneficiary Designations

If your will lists your disabled beneficiary as an heir to your estate, any funds that are transferred directly to your loved one could disqualify them from public benefits. Instead, your will must designate a third-party special needs trust as the beneficiary. Once funds are transferred to this trust, the trust executor can use them for your loved one’s care, maintenance, and support.

3. Only Protecting Public Benefits

A special needs trust is designed to supplement public benefits, not replace them. It is essential to consider your beneficiary’s continued quality of life, care plan, living arrangement, and advocacy. This special needs trust can be as detailed as it needs to be to ensure your loved one remains financially secure for the rest of their life.

4. Failing to Give a Minor With Capacity the Power of Appointment Over Trust Assets in Death

Although you cannot perform estate planning for a minor beneficiary, you can grant a minor the power of appointment over their trust funds once they reach adulthood so that these assets do not fall into intestacy upon their death.

Each state has laws of intestate succession, outlining how assets must be distributed if someone dies without a valid will. If a special needs trust beneficiary dies intestate without exercising their power of appointment, they may lose control over the distribution of assets in their trust.

5. Not Giving Your Trustee Full Discretion Over Funds

Although you may feel compelled to guide the use of the trust assets for your family member’s benefit, one key requirement of a special needs trust is that the trustee has full discretion over the funds. If the trustee lacks this discretion, the funds may be considered available to the beneficiary — which can mean disqualifying them from benefit programs. Removing the trustee’s discretion makes the trust more of a support trust than a special needs trust.

Including HEMS Standard Directions

One common restriction in other types of trusts is that the assets may be used only for “HEMS”: the beneficiary’s health, education, maintenance, and support. But while these are worthwhile considerations for special needs trust beneficiaries, stipulating that trust funds are to be used only for the beneficiary’s HEMS needs removes the trustee’s discretion and can put the trust’s special needs status at risk.

Including Crummey Powers

Crummey Powers involve designating gift assets in a trust document when you draft it. Ordinarily, this will enable the beneficiary to withdraw that gift without paying any gift tax. However, this gift can jeopardize the special needs trust beneficiary’s public benefits since it is considered “available income.” Like HEMS restrictions, Crummey Powers can also restrict the trustee’s discretion over trust funds.

Being Too Restrictive

As you can see, placing any provisions in a special needs trust that restrict the trustee’s power can jeopardize the trust. Restricting this trust from providing for things already covered by public benefits or nonprofit services (like healthcare, housing, or food) can cause more harm than good.

For example, suppose your beneficiary does not qualify for public housing but also cannot find affordable housing using only their SSI income. In that case, the special needs trust can be used to help with this expense.

6. Not Adequately Funding the Trust

The special needs trust should be sufficiently funded to maintain the beneficiary’s quality of life. This is especially true when the beneficiary is unlikely to have any income apart from public benefits and distributions from the trust.

Even if you do not have cash on hand, you can fund special needs trusts from various sources, including personal injury settlements, life insurance proceeds, gifts from grandparents, and other assets that might otherwise pass through the probate process. ABLE accounts are another way to fund these trusts; these are tax-advantaged savings accounts for disabled individuals and their loved ones.

Finally, you may consider a pooled trust, which is a nonprofit-managed trust that combines the resources of multiple beneficiaries to reduce administrative costs and optimize benefits. Individuals who take part in a pooled trust have their own sub-accounts and can receive a proportional share of trust earnings.

7. Including a Payback Provision in a Third-Party Settled Trust

Some special needs trusts are “first-party” trusts, which are authorized under 42 U.S.C. § 1396p(d)(4)(A) and (C). These trusts are established and funded by the disabled beneficiary themselves, often using personal injury proceeds or other assets. Third-party trusts, on the other hand, are funded by someone other than the beneficiary.

Federal law requires a payback provision only for self-settled or first-party special needs trusts. In fact, including a payback provision in a third-party settled trust could subject the trust drafter to a malpractice lawsuit. The Social Security Administration governs third-party settled trusts, which do not include any payback requirements.

8. Creating a Self-Funded Special Needs Trust for a Beneficiary Over 65

According to the Social Security Administration, to qualify for the special needs trust exception, the special needs trust must be established to benefit a disabled person under age 65. While you can still establish a trust for the benefit of a disabled person age 65 or older, this trust will not be treated or characterized as a special needs trust.

9. Failing to Make a Self-Funded Special Needs Trust Irrevocable

If a self-settled special needs trust is made revocable, these funds are considered available — which means they can disqualify the beneficiary from government benefits. Instead, these trusts must be irrevocable, which means that even the grantor or settlor cannot reallocate funds once the trust has been established.

10. Allowing a Beneficiary to Contribute to a Third-Party Settled Trust

If a trust beneficiary contributes assets to a third-party settled trust, this trust is transformed into a self-funded trust. When this happens, the trust may be subject to Medicaid reimbursement after the beneficiary’s death.

11. Selecting a Non-Professional Trustee

Although asking a friend or family member to serve as trustee may be tempting, this is not always the best idea. A professional trustee will understand the law surrounding public benefits and special needs trusts and can help see that the trust complies with all state and federal laws.

12. Failing to Appoint a Trust Protector

You should appoint a “trust protector” to monitor the execution of the trustee’s duties. Among their other duties, a trust protector can remove a trustee and appoint a replacement if the trustee is not acting in the beneficiary’s best interest. Trust protectors may also amend the trust and approve specific distributions, helping provide an additional layer of oversight over the trust.

13. Not Notifying the Trustee or Guardian That You Named Them

Sometimes, trust settlors may forget to notify their appointed trustee or guardian — or even assess whether this person is available or willing to serve in this role. By informing the trustee or guardian ahead of time, you can ensure that they are not surprised by these responsibilities and have adequate time to educate themselves on their role.

How Can I Avoid Mistakes While Planning a Special Needs Trust?

a lawyer sitting down discussing paperwork with a client

As you can see, the various types of special needs trusts can be complex to create and administer. Any trust-drafting templates you find online are filled with disclaimers, and for good reason — this is not a good DIY project.

The attorneys of Montagna Klein Camden have decades of experience in handling the planning and execution of special needs trusts in the Hampton Roads area. We can guide you through the process and resolve complications as they arise. Call our Norfolk office today at 757-622-8100 or use our online contact form to learn how we can help you manage your trust with confidence.

Who Is to Blame for Accidents: Car or Pedestrian?

Written by Jon Montagna on March 24, 2023. Posted in Auto Accident.

Accidents involving motor vehicles and pedestrians can cause severe injuries. In this type of auto accident, the pedestrian is likely to have the worst injuries. According to the Virginia Department of Transportation, this state had 1,399 pedestrian crashes in 2021, resulting in over 400 serious injuries to pedestrians and 125 pedestrian fatalities. Pedestrians are only involved in about 1% of all car crashes in Virginia, but they account for approximately 12.9% of all traffic fatalities. The National Highway Traffic Safety Administration (NHTSA) reports that a pedestrian fatality occurred every 81 minutes in 2020. Because of the danger of injury or death in pedestrian accidents, it is critical that you are aware of your rights and exercise caution when driving or walking along a roadway. Determining who is liable in a pedestrian-car accident depends on the circumstances of each case. If you or a loved one has been involved in a pedestrian accident, our Virginia auto accident lawyers at Montagna Klein Camden are available to discuss your case and help you understand your options.

woman crying on the phone after being in a car accident

Who Is Considered a Pedestrian Under Virginia Law?

The term “pedestrian” primarily refers to a person traveling on foot. Under Virginia law, people riding any of the following on a sidewalk or across a street also have “all the rights and duties of a pedestrian under the same circumstances”:

Bicycles
Roller skates or roller blades
Skateboards
Electric personal assistive mobility devices
Motorized skateboards or scooters
Motor-driven cycles
Electric power-assisted bicycles

When Do Pedestrians Have the Right-of-Way?

pedestrians using a crosswalk

Pedestrians have the right-of-way at all times on sidewalks. People on a sidewalk riding bicycles or other devices listed above must yield to pedestrians.

The right-of-way for pedestrians on streets and roads in Virginia is more complicated. Many people incorrectly believe that pedestrians may cross the street anywhere they want. Pedestrians only have the right of way over motor vehicles at the following locations:

Clearly-marked crosswalks
Pedestrian crossings at intersections, as indicated by the continuation of a sidewalk’s boundary lines
Intersections of streets with speed limits of up to 35 miles per hour

These rights of way are dependent on pedestrians’ duty to behave carefully on and around roadways. Pedestrians should use sidewalks whenever possible. If no sidewalk is available, they must walk in the direction of oncoming traffic and remain as close to the edge of the road as possible.

Pedestrians must obey all traffic signals. A pedestrian does not have the right-of-way at a marked crosswalk if the signal says Do Not Walk. They must not walk into a roadway without regard for traffic or “carelessly or maliciously interfere with the orderly passage of vehicles.”

Crossing a street away from an area designated as a crosswalk for pedestrians is commonly known as “jaywalking.” Virginia has decriminalized jaywalking, meaning that people who jaywalk will not face arrest, fines, or jail time. However, it may be a factor in a personal injury claim involving a pedestrian accident.

Virginia law provides additional protection for blind pedestrians. Motorists must always yield the right of way to them if they have a dog guide or a cane that is primarily white or metallic.

Who Is Liable in a Car-Pedestrian Accident?

Virginia is a “pure contributory negligence” state, meaning an injured person cannot be at fault in any way for their injuries to collect damages. If a driver is 99 percent at fault for a car accident and a pedestrian is one percent at fault, the law of pure contributory negligence would bar the pedestrian from recovering damages from the at-fault driver.

Only four states, including Virginia and the District of Columbia, still use a pure contributory negligence system. Many states use a system known as “comparative fault,” which would allow an injured pedestrian to recover damages as long as their share of fault is less than 50%. A court would reduce their damages by the percentage of their fault. For example, say a pedestrian is 25% at fault for an accident, a driver is 75% at fault, and the pedestrian has $100,000 in medical bills and other damages. A comparative fault system would allow the pedestrian to recover damages but would reduce the amount by 25% to $75,000. The same circumstances in Virginia would preclude the pedestrian from collecting any damages.

In Virginia, any fault on the part of an injured pedestrian means they cannot recover anything. Insurance companies pay attention to the likely outcome of a personal injury lawsuit. They will try to find any fault to pin on the pedestrian to avoid paying anything. Behaving irresponsibly, such as jaywalking or ignoring a Do Not Walk signal at a crosswalk, can prevent a Virginia pedestrian from recovering any damages.

Start Recovery From Your Accident Today

Our personal injury attorneys at Montagna Klein Camden represent injured pedestrians throughout the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk. We can help you recover the damages owed to you because of your pedestrian accident. Contact our law firm today at 757-622-8100 or through our online contact form to schedule a free consultation.

What is the Difference Between Complex and Simple Wills?

Written by Jon Montagna on March 13, 2023. Posted in Estate Planning.

When you think about passing away, you are more likely to think about the effect it will have on your loved ones rather than the logistics of distributing your estate. It is natural to have concern for the emotions of those you leave behind. Most people do not understand that estate planning can significantly reduce the struggles they will face after a deceased person passes.

By proactively taking steps to complete your estate planning, you (the “testator”) can save your loved ones from coping with pain, stress, and conflict after your passing. If you have a well established, your decedents can avoid lengthy court proceedings while following your last wishes.

The compassionate and caring Virginia estate planning attorneys at Montagna Klein Camden understand how hard it is to think about planning for death. However, we also know how people can ease future pain for their loved ones by writing a last will and testament.

To learn more about how our attorneys can help you to create an estate plan that fits your needs and abides by the criteria set under Virginia law, call Montagna Law today at 757-622-8100.

Who Should Have a Will and Why?

older man and woman sitting down filling out will paperwork

Wills are valuable documents for anyone, even those without a substantial estate to pass on to their heirs. Creating a will is a good idea if a testator has one or more assets.

If you own one or more assets, such as a home, car, bank accounts, life insurance policy, or other personal property, having a will in place can save your family and loved ones the time, money, and stress associated with the probate court.

The legal team at Montagna Law is well-versed in the intricacies of probate law in the Commonwealth of Virginia. We can help oversee your estate planning process so that all legal documents are binding. If a person in Virginia dies without a will, intestacy law determines who gets your assets once you are gone. With a will in place, that choice becomes 100% yours.

What Are the Differences Between a Simple Will and Complex Will in Virginia?

You should create a will to control the distribution of your assets after your death. Sadly, just one-third of people in the U.S. die with a valid will in place, which can be traumatic for the loved ones left behind. If you still need to draft a will, now is the time. In Virginia, you can choose between a simple and complex will.

Simple Wills

Simple wills are basic directives that outline how you want to distribute your assets after your death. A simple will is typically a good option if you are young, have no children from previous marriages, own modest assets, and do not believe anyone would have grounds to challenge your wishes after your passing.

Simple wills cover the distribution of your assets, dictate custody or guardianship of your minor children if both parents have passed, outline who gets your pets, and name the executor of your estate. A simple will can also include any charitable donations or gifts you wish to make upon your death.

Complex Wills

For many people, simple wills are insufficient for their needs, especially for those over 50. Four factors will push your option for a simple will into a complex will.

Size of your estate
Number of assets you own
Number of specific bequests you make
Need for a trust or other complex estate needs in your situation

Complex wills often include details about how you plan to distribute your assets between children from different marriages. They also typically plan for the future care of disabled children through a Special Needs Trust. Your complex will may contain details about who inherits control of your business, your stocks, and any other assets you own.

What Happens if I Die Without a Will?

If you pass away without a will, this is called “intestate” and involves strict laws. In Virginia, this means your property will go to your surviving spouse. However, if you have children from an earlier marriage or relationship that was not with your spouse, without a will, the estate will be divided. Your spouse gets one-third of your estate, and your kids receive two-thirds. If you are not married at your death, your children will inherit your assets.

Your parents, siblings, and other relatives will inherit your estate if you do not have a surviving spouse or kids. The order of distribution follows a priority list according to close relatives. You might want something else. For example, say you have a favorite second cousin or best friend who has helped you overcome your greatest challenges. If you want them to inherit your estate, your will can ensure this happens. Otherwise, your second cousin would be a lower priority than closer relatives, and your best friend is not a blood relative and would not inherit under intestacy law.

It is in your best interests to establish a last will and testament when you are of sound mind to avoid the probate process and prevent the risk of your assets, including real estate, going to people who may not be your first preference for an inheritance from you.

Should I Hire a Virginia Estate Planning Lawyer?

estate planning lawyer sitting down talking to clients

Yes, hiring a Virginia estate planning lawyer is in your and your loved ones’ best interest. It is common for people to wonder about what is involved with drafting a will and have many questions. “Are wills revocable?”, “How many beneficiaries can I have in my Virginia will?”, “Do I need to get a notary when I sign my will?”, “I’ve heard of a testamentary trust, but what is it?” A Virginia estate planning can answer these questions and any more you might have, including concerns about your liabilities or how to deal with estate taxes.

When you work with a Virginia estate planning lawyer, you will benefit from receiving sound legal advice from an experienced professional who understands Virginia state laws. At Montagna Law, our attorneys can help you decide whether you need a simple or complex will. We will explain specific details, such as testamentary trusts or holographic wills, so you understand your options and if any particular approaches to will-writing should apply to you.

Working with a knowledgeable and skilled attorney to create your will helps reassure you that your last wishes are honored. You can even make requests in your will that are out of the norm, such as wishing to be buried in a specific outfit or with a particular possession. Or, if you want to establish a trust for your pet, our attorneys have seen this too. Our legal team will work with you to write a valid will precisely as you want. Furthermore, if you choose to add a codicil to your original will later, your lawyer can certainly assist.

Trust Us to Help Plan for Your Future

If you are looking to solidify the plans for your assets and other wishes, now is the time to write your will. At the Montagna Klein Camden law firm, we will sit down with you and discuss how you want your assets distributed and any requests you want to make. We will also help you determine whether a simple or complex will is your best course of action.

Once you decide on the type of will you need, we will work with you to incorporate any other wishes you want to include in your documents. To learn more about constructing your will or other estate planning concerns, such as establishing a power of attorney, drafting a living will, or creating a living trust, contact Montagna Law today at 757-622-8100 or by filling out our convenient online contact form.

Montagna Law boasts decades of experience proudly serving Hampton Roads, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk.

What to Do in if You Are Involved in a Side Swipe Car Collision

Written by Jon Montagna on February 3, 2023. Posted in Auto Accident.

Have you ever been driving on the road and the lanes ahead are merging, but the car next to you does not indicate they want to do a lane change? Instead, they keep traveling in their lane, and you witness them ram into another car. Or, maybe this has happened to you when an aggressive driver decides there is enough room and side-swipes into your car, causing an accident and damaging your vehicle.

In either situation, a sideswipe car accident can happen in the blink of an eye. If you have been involved in this or any other type of accident, call the knowledgeable personal injury lawyers at Montagna Klein Camden for a free consultation at 757-622-8100.

What is a Sideswipe Accident?

A sideswipe accident occurs when two cars, typically traveling in the same direction (but not always), brush up against each other with the right side of one car hitting the left side of the other. In many cases, what then occurs is one or both vehicles lose control or overcompensate to gain control, potentially creating an even more dangerous scenario that may or may not involve other vehicles.

Sideswipe accidents are very dangerous and can lead to serious injury or death. This type of collision is particularly dangerous when a larger vehicle (e.g., SUV, truck, etc.) comes into contact with a smaller vehicle.

What Steps Should You Take After a Sideswipe Accident in Virginia?

Sometimes there is more than meets the eye in any car accident, and insurance companies often will try to minimize injuries or dispute damages. If you or a loved one experience a sideswipe accident in Virginia, it is important to immediately take the following steps, even if the accident seems minor.

Call the Police

Call the police right away, even if there appear to be no injuries and only minor damage. Responding officers will come to the scene and write a report that may become critical to your insurance claim or personal injury case.

Document the Evidence

Take photographs and videos of the vehicles involved and the accident scene, including any other objects involved in the crash (e.g., guardrail, road sign, trees, or other objects). Other documentation to obtain includes:

The other driver’s name, address, driver’s license, license plate number, car make and model, and driver’s insurance company details
Contact information for any eyewitnesses
Copies of any accident-related information, such as police reports, medical bills, car repair estimates/bills, and any other out-of-pocket expenses you suffered

It is important to keep careful records. Your, or your passengers, injuries may be more severe than initially thought. Any documentation you collect will aid in filing a strong insurance claim and potential personal injury lawsuit against the negligent driver.

Seek Medical Attention

Even if your injuries do not seem serious, you should still seek medical attention from a healthcare provider. Let the medical professional know you were in an auto accident so they can conduct a thorough examination. The typical person does not notice many car accident-related injuries very easily. You may fail to treat your traumatic brain, neck, and spinal cord injuries until it is too late.

Contact a Car Accident Attorney

Contact an experienced Virginia car accident lawyer as soon as reasonably possible. Your attorney will evaluate the situation and examine the circumstances leading up to and during the accident. Be sure to speak to your lawyer before talking to the insurance company as they will not have your best interests at heart and may even try to position you as the at-fault driver for causing the sideswipe collision.

What Causes Sideswipe Car Accidents?

Like many preventable car crashes, there are several different ways the at-fault driver could have avoided the sideswipe accident had they acted responsibly and not engaged in reckless driving. The following actions are common causes.

Distracted Driving

Drivers who do not keep their eyes on the road or try to split their attention with a phone, food, drink, GPS, or another activity can easily slide into another lane before they realize what is happening. Others, distracted due to intoxication, might unexpectedly slide into another car as they weave in and out of lanes.

Aggressive Driving

Driving while feeling road rage or acting aggressively behind the wheel is a top contributor to many sideswipe accidents. The motorist may drive at high speeds and miss objects in their blind spot or swerve in and out of traffic to try to get ahead of other cars. Carelessness and aggression easily lead to serious injury — or worse.

Driver Fatigue

Drivers operating vehicles while drowsy may drift between lanes, drive too slowly, or drive too fast. Fatigue can greatly impair a motorist’s judgment and lead to them sliding into another car. Operating a vehicle while tired is similar to operating one while impaired.

According to the U.S. federal government, human error causes 98% of car accidents. This includes sideswipe accidents. Negligent drivers should be held accountable for their behavior on the road.

Why Do Sideswipe Accidents Occur?

A sideswipe crash usually happens when one car moves out of its lane into another when it is not safe to do so. Often the vehicle is driving on roads with higher speed limits (or driving above posted speed limits). Other ways sideswipe accidents occur include:

During the merging of lanes or when one vehicle tries to merge from another road or ramp into the same roadway
Objects lying in the road and motorists attempting to miss them swerve into another vehicle
Drivers failing to check mirrors and blind spots when switching lanes
Operators cutting in front of other vehicles or misjudging the distance, causing either head-on or rear-end collisions from the side
Drivers not paying attention to their movements when navigating between lanes
Motorists making improper turns in multi-turn lanes either by miscalculating the distance or making a poor turn, swinging the vehicle in the accompanying turn lane
Sliding into a parked vehicle while navigating narrow one-way or one-lane streets
Speeding on slick roadways and losing control of the vehicle
Motorists driving recklessly in the opposite direction than they should be and causing a side collision when swerving

These and other acts taken while driving can cause two cars or other vehicles to brush up against one another, which can tragically cause serious injury or wrongful death under certain circumstances.

Who is at Fault in a Virginia Sideswipe Accident?

When determining fault in a Virginia sideswipe accident, chances are one driver had the right of way and the other did not. The Commonwealth of Virginia also has what is called contributory negligence, which is a very harsh rule when it comes to personal injury cases. Only a handful of states utilize this rule; unfortunately, Virginia is one of them.

This means that if you contributed 1% to the cause of an accident, you do not have a case. To get the compensation you deserve, you need to prove the other driver was 100% at fault. Insurance companies often use this rule to sidestep paying for claims they otherwise should be responsible for paying for, including medical bills, lost wages, pain and suffering, or any other losses relating to the accident.

Virginia’s contributory negligence rule is why it is important to have an experienced Virginia car accident lawyer by your side. They know how to gather evidence and assemble a strong case. Your attorney can also speak to the insurance companies so they cannot try to manipulate anything you say and use it to blame you for the crash.

What Types of Damages Can You Recover From a Sideswipe Accident?

In terms of responsibility, sideswipe accidents are no different than other types of car accidents. Some of the damages you might be able to recover from a negligent driver include the following.

Lost Wages

If your injury causes you to lose time from work, you are entitled to pursue lost wages, along with future lost wages, if you have long-term or permanent injuries or disabilities that prevent you from doing your job.

Medical Expenses

You can pursue compensation for medical expenses, including doctor and hospital bills, medication, diagnostic tests, surgery, PT, OT, and any other medical expenses.

Pain and Suffering

A full injury settlement typically includes compensation for any pain and suffering you have endured. This award covers any non-economic suffering, such as physical discomfort, emotional distress, and other traumas caused by the accident or your severe injuries.

Why You Should Contact a Virginia Car Accident Attorney

If you were in a car accident that was not your fault and sustained injuries, you should contact an attorney as soon as possible. Even if you think you might be at fault, it is a good idea to speak with a lawyer because there may be circumstances that led to the crash you might not be aware of, such as distracted driving or DUI. Trying to deal with insurance companies by yourself is challenging, stressful, and could cost you compensation you may be entitled to receive.

Statistics indicate having an attorney by your side results in higher compensation. In terms of case outcome, 91% of victims receive payout when they work with a lawyer, whereas only 51% receive a payout without one. Having legal representation also makes a big difference when it comes to how much you may get. For instance, the average amount victims who hire an attorney get is approximately $77,000, compared to a mere $17,000 for those who handled their claims without an attorney.

At Montagna Law, we will fight hard for you to help you get the settlement you deserve to aid in your recovery after being in a side-swiped car.

Caught in an Unexpected Car Accident?

The personal injury attorneys at Montagna Law offer you decades of experience in filing injury claims and pursuing fair compensation for Hampton Roads residents. Our attorneys are well-equipped to handle the complexities of motor vehicle accidents and the barriers insurance companies tend to throw at accident victims.

To obtain a free case review, contact our office by calling 757-622-8100 or filling out our online contact form. Our law firm prides itself on the service we offer the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk, and we will offer you sound legal advice every step of the way.

man wearing a leg brace after a leg injury

Common Leg Injuries After a Car Collision

Written by Jon Montagna on February 1, 2023. Posted in Auto Accident.

A car accident can be terrifying for many reasons. When someone else hits your car, it can result in a ripple effect that moves your vehicle, makes items in the car fly through the air, and changes the car’s interior. Ultimately, car accidents can be painful and expensive.

If you sustain a leg injury, you might be too distracted with your recovery to protect your legal rights for compensation. Leg injuries can result in long-lasting pain that inhibits your movement. You might even need physical therapy or surgery. If you were in an auto accident and suffering from a leg injury, contact the knowledgeable car accident attorneys at Montagna Klein Camden to see how our Norfolk, Virginia law firm can help with your claim.

What Causes Leg Injuries in a Car Accident?

According to the National Highway Traffic Safety Administration (NHTSA), leg injuries are very common in frontal crashes. In most situations, leg injuries occur from the collapse of the small space where your legs rest while driving (for both passengers and drivers). Essentially, when this already small space gets crushed, it often directly affects the driver’s and passenger’s legs.

In crashes that involve lower leg injuries, the floor or foot control is likely to blame. In crashes that involve upper leg injuries, the knee bolster or instrument panel was likely the source of the injury. The steering wheel can affect the legs and kneecaps as well.

Ultimately, the United States Department of Transportation reports that roughly 38 percent of all front crashes involve some kind of leg injury. When the collision is one from the front, the likelihood of leg damage doubles compared to other types of crashes. These injuries can be very severe, depending on how serious the crash may be.

What Are Some Common Leg Injuries After a Car Accident?

Many types of leg injuries might occur after a crash. While broken bones might be the most obvious injury, leg damage can extend far beyond broken bones. Some leg injuries might be life-threatening, such as when they result in nerve damage, blood vessel damage, or spinal cord damage. Amputations might also occur in serious car crashes.

Some of these common leg injuries might affect drivers and passengers for the rest of their lives.

Broken or Crushed Bones

You have sixty bones in your body from hip to toe. The legs have four major bones:

Tibia
Smaller fibula
Femur (thigh bone)
Patella (kneecap)

Any of these leg bones are vulnerable during a car crash, even though the femur is often known as the strongest bone in the body. Your legs often experience the impact very differently than the rest of your body. If you know the crash is coming, many people brace their legs on the floor, which can lead to bone fractures in the legs and feet and broken legs.

Bones can break and shatter if there is sudden, strong pressure. Prolonged pressure can also break a bone. In fact, many bones break in more than one location in severe crashes.

You might not notice every leg fracture right away. Smaller breaks or fractures might only be discovered after an x-ray. You might have pain but can still put some pressure on your leg, so you make the mistake of assuming you have a bruise. Instead, you might have a break that gets worse once you use your leg normally for a period of time.

Be sure to get medical attention after any accident, even if you do not think you are hurt that badly — some injuries might not seem serious until hours or even days after the auto accident.

Bruises

Bruises from car accidents are extremely common. They are usually visible on the skin because they will discolor your normal pigment. They might turn blue, purple, or yellow. In most cases, a bruise will be painful, but it often does not cause any long-term damage.

In general, a bruise will appear after an impact with an object. Blood pools under the skin because of damage to blood vessels. Bruising might show up immediately after an accident, or it might take a few hours or days to appear.

A hematoma is technically a type of bruise. It is much more painful than the average bruise. They are usually bigger than the typical bruise and painful to the touch.

Car accident victims sometimes experience internal bruising as well. An internal bruise is damage to the deep tissue under the skin. You can also experience a bruise on your bones or muscles. These painful injuries often result in swelling, discoloration of the skin, and trouble moving the affected area. Bone bruises will often last longer than the average bruise as well.

ACL Injuries

Your anterior cruciate ligament (ACL) connects the femur to the tibia. It also goes directly to the kneecap between these two critical bones. The ACL provides stability and flexibility to your knee joint.

ACL injuries are extremely common, especially in athletes, who use their legs quite a bit. Hyperextending the knee or twisting the legs the wrong way can lead to an ACL injury — and both movements are relatively common in an auto accident. In fact, of all knee injuries that a car accident causes, damage to the ACL is the most common.

Anyone who experiences an ACL injury will often tell you they heard or felt a popping or cracking and immediate pain in the knee area. If you have a severe ACL injury, you likely cannot put pressure or weight on the affected leg. The knee will usually swell as well, causing a severe limitation in the range of motion. Recovering from an ACL injury can often take months.

Meniscus Injuries

The meniscus is a critical part of the knee. It is a piece of cartilage that cushions the knee so that the bones that the knee connects — the femur and tibia — do not rub against one another. They also absorb shock when you place weight on your leg, such as from walking, running, climbing, crawling, or any other weight-bearing activity.

The meniscus can tear, making it less effective in preventing injury. A torn meniscus can be painful, but it can also make movement very difficult.

Car accident victims often end up with a meniscus tear because of the crash’s impact. This type of injury is frequently painful immediately. However, the movement might not be inhibited until a few days after the crash. The knee will become stiffer, and walking might become more difficult and limited.

Soft Tissue Injuries

Soft tissue is any item in the body that protects, supports, or connects other parts of the body, including organs. Soft tissues could include the following:

Blood vessels
Cartilage
Tendons
Nerves
Ligaments
Fat
Muscles

Soft tissue injuries can be extremely painful and often take a significant amount of time to heal. They include tears, sprains, bruises, scrapes, lacerations, dislocation, and more. In most cases, soft tissue injuries can be difficult to diagnose because they will not appear on an x-ray. You might be able to see some soft tissue damage in a CT scan, but not always.

There is often no real treatment to address a soft tissue injury. These injuries have to heal on their own using plenty of rest. Over time, the area will begin to heal, but car accident victims might have limited movement and severe pain while it heals.

What Are the Symptoms of Leg Injury?

A leg injury’s symptoms vary based on your type of injury. However, any of the following symptoms might indicate something wrong with your lower extremity due to the automotive accident.

Leg pain
Swelling
Tenderness
Bruising
Difficulty walking or moving the leg
Muscle spasms and cramps
Popping or cracking sounds

Get medical attention after a car accident, even if you think your injuries might be minor. Even seemingly minor scraps and bruises can be a sign of something much more serious. Do not wait to get medical help.

In addition, some leg injury symptoms do not appear until hours or even days after the motor vehicle collision. Seek out medical care as soon as you start to notice symptoms. Quick action can help you heal faster and get back on your feet.

What Is the Statute of Limitations for Filing a Personal Injury Claim in Virginia?

You have two years from the date of the accident to file a personal injury lawsuit in Virginia. Two years might seem like a long time, but it can pass quickly if you are nursing a leg back to health. Reach out to a Virginia car accident lawyer for help long before those two years expire.

It depends. Every case is different, but if your leg injury was the fault of another person, you might

Can I Get Compensation for My Leg Injury After a Car Accident?

It depends. Every case is different, but if your leg injury was the fault of another person, you might be able to get compensation for your losses and damages. An experienced Virginia car accident lawyer will be able to review your situation and walk you through your options.

Below are some of the common types of compensation you might be able to receive after a car accident in Virginia.

Lost Wages

If you cannot work because of your injury, you might be entitled to receive lost wages. These include the actual time away from work and any future loss of wages you might experience because of a long-term injury.

Medical Expenses

You might need to pay your medical bills if someone else caused the crash that led to your leg injury. While you may need to keep up with medical bills for medical treatment as they occur, a legal claim might allow you to get reimbursement for those medical expenses. You might also be able to recover future medical expenses if you need further treatment down the road.

Property Damage

Most car accident cases lead to property damage. That property damage can often be recovered from the at-fault driver, either through their insurance company or directly from the driver.

Pain and Suffering

You might be able to receive monetary damages for your pain and suffering. Although you cannot quantify what your pain and suffering might be worth very well, Virginia law attempts to provide car accident victims monetary compensation to address this type of loss.

How Can a Lawyer Help After a Virginia Car Accident?

An experienced attorney knows the legal system. They know the legal requirements for a personal injury claim and the best ways to present your case to a judge or jury. They are also aware of the rules and deadlines you must follow to get the most out of your claim.

A Virginia personal injury attorney will provide legal advice and ensure you do not miss any part of the legal process, including paperwork or deadlines. Ultimately, an attorney will try to get you the most compensation available after your car accident injury.

Get Back on Your Feet with Trusted Legal Representation

When you have suffered a leg injury, you need someone else to help you assert your legal rights while you heal. Call Montagna Klein Camden at 757-622-8100 for more information about how our team of personal injury lawyers can help.

A man and a woman talking to a police officer after a car accident

What is Virginia’s Good Samaritan Law?

Written by Jon Montagna on January 30, 2023. Posted in Auto Accident.

Whether you drive every day or infrequently, you never expect to witness an accident. If you do, however, the next question you might ask yourself is, do you stop? Do you help them? No law says you must stay and help the victims. You may even worry that if you do help, it could create the basis for that person to sue you for doing something wrong. In Virginia, the Good Samaritan Law can protect you in these circumstances. If you or a loved one experience a car accident and require legal assistance, contact the experienced auto accident attorneys at Montagna Klein Camden at 757-622-8100.

What Does the Good Samaritan Law Cover in Virginia?

The Good Samaritan law in Virginia generally protects individuals who attempt to help and render aid to victims at the scene of an emergency. As long as you act in what is considered a reasonable manner to help that person, this law can shield you from liability.

This means you are immune to civil liability if injuries or death occur when rendering emergency assistance or aid to an individual at risk for further injury or under life-threatening conditions.

The law itself is broadly encompassing when it comes to emergency care situations. Some of the general inclusions are:

Removing or helping to remove a person from a vehicle that causes further threats, such as a burning car or a crashed vehicle stopped in a dangerous location (e.g., an intersection or blind curve in a roadway)
Administering first aid at the scene of an accident or other emergency
Performing cardiopulmonary resuscitation (CPR) or using an automated external defibrillator (AED)
Assisting in the delivery of a baby if you are unable to get to a doctor’s office quick enough
Applying pressure to stop arterial bleeding
Using an epi-pen to administer epinephrine
Administering Naloxone for an opioid or other drug overdose
Assisting at the request of law enforcement or other rescue personnel, such as to remove hazardous material

Rendering such emergency care, with or without training, can make all the difference in the life of that person. Fortunately, the Code of Virginia supports such actions and protects you in most situations.

Why Does Virginia Have the Good Samaritan Law?

Virginia has a Good Samaritan law to encourage citizens to help each other in emergency situations where quick action is necessary and there is not enough time for medical professionals to arrive. Car accidents and other emergencies can happen to anyone, anywhere. Often, it is the minutes that follow that count the most. Knowing that an individual can stop and help without being held liable for injuries or death can limit hesitation and save lives.

The Virginia Good Samaritan law is also valuable for defining what constitutes a good Samaritan act and provides the conditions that must be met to avoid liability.

Specifically, the Good Samaritan law will apply if:

You act in good faith, with the only intention being to help someone avoid further harm or death.
Your action is voluntary, and you do not expect compensation.
No gross negligence (reckless or wanton misconduct) occurs; that is, you do not act unreasonably in any way.
You made reasonable attempts to contact first responders, including the police, fire department, or paramedics, by calling 911 and reporting the circumstances and need for emergency medical assistance.

What is the Penalty for Violating the Good Samaritan Law?

For the Virginia Good Samaritan law to shield you from legal liability, you must act reasonably and in good faith. Defining these terms specifically can become challenging and problematic, but doing so is essential should your actions come into question.

As for reasonable, the actions of the good Samaritan must match that of a reasonable and prudent person when put in the same or similar situation. Good faith is a term that refers to the state of mind or purpose behind your actions.

Those who, in some definable way, fail to act reasonably and in good faith when assisting someone in an emergency care situation violate the Good Samaritan Law. This violation may be from wanton or willful misconduct or reckless behavior, and the other party may decide to sue for civil damages.

For purposes of this section, examples of what can violate the law include:

Rendering emergency care in the form of chest compressions that break the victim’s ribs without checking for a pulse or breathing.
Pulling an injured person from a burning car and placing them in further harm’s way, such as directly in the path of oncoming vehicles.

For each case, an in-depth analysis will be imperative to determine what is reasonable and how actions and any poor judgment may have played a role. For this, seeking legal advice from an experienced personal injury attorney will be invaluable.

If you are an accident victim, you must seek legal advice as soon as possible. You will want to confirm that your agreed-upon settlement from the insurance company covers all accident injuries, including those resulting from a good Samaritan act. Since personal injury cases can take a long time to settle, medical bills can pile up and add more stress, which you do not want to happen.

What Should You Do if You Witness a Car Accident?

If you witness a car accident, you should take the following steps while at the scene.

Get to Safety

Get to safety as quickly as possible. Accidents can cause dangerous situations for you and other drivers. Park far enough away from the danger and initiate your flashing hazard lights. If you see a safe way to proceed to the aid of the car accident victim, do so. If not, stay put and wait for emergency personnel to arrive.

Call 911

Immediately call 911 to report the accident, its location, and as many details as possible to a dispatcher. Never assume someone else has already done so.

Check for Injuries Requiring Medical Attention

Assess the car accident victims as you approach the motor vehicle while keeping your safety in mind at all times. Talk to those that are conscious and ask about their injuries. Do not attempt to move them or render aid unless circumstances warrant quick action. Wait for emergency medical services (EMTs) personnel to arrive.

Give a Statement

Once the police arrive, you will need to give a witness statement. Inform them that you are an eyewitness and give details to the questions they ask. Mention if you had to provide medical care to the victims, and give your full name and contact information.

What Will You Do in an Emergency?

Being in an accident or witnessing one can be an overwhelming experience. You may sustain injuries or attempt to help someone as a good samaritan. Whichever of these emergency situations you find yourself in, seek the legal advice of Montagna Law in Hampton Roads. We proudly serve those in Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk by reviewing the circumstances surrounding the emergency situation, negotiating with insurance companies, and representing you in court if it needs to go that far. Find out how we can help you specifically by calling 757-622-8100 or using our online contact form to schedule a free consultation.

Author: Jon Montagna