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Can I file a "John-Doe Lawsuit"?

Fairfax, VA |

I drive for Enterprise Rentals and I was in an accident. An unknown driver in the left lane of 3 swerved into my middle lane. He drove me into the right lane where many cars were stopped waiting to turn and I smashed into the back of the last car (as I only had about 10-20ft to stop once I was in the right lane) and left the scene. The accident totaled the car and i've been out of work (on workers comp until recently) with intense back pain. The insurance for my company isn't helpful at all. It's been 6 months since the accident and I still haven't received treatment for my back. Can a JD lawsuit be filed and against who? If so, how much could I get to cover medical expenses for myself and do away with this unhelpful insurance claim? And who is the liability policy provider for Enterprise?

Attorney Answers 4


If the car you were driving has uninsured motorist coverage, a personal injury lawyer can make a claim against the insurance on the car you were driving.

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(1) Step one: you need to get a workers compensation attorney ASAP now before you do anything else. Workers compensation benefits are controlled by state law and not what the company and its insurance company say they'll do when they get around to it. Workers compensation law requires payment for treatment related to the injury in the course of employment.

(2) Step two: in the worker's compensation context a 'third party case' is a claim against the individual or entity that caused your injury, in this case the unknown driver. A "Jon Doe" lawsuit is not your friend here, but rather, an uninsured claim. Ask your workers compensation attorney about the motor vehicle insurance law in VA and how to proceed.

Do not let this insurance company sit around and do nothing for another day - find a workers compensation attorney. The initial consultation is at no cost and after that the attorney takes a fee only when and how the state statute allows.

My office handles personal injury including workers compensation cases in Massachusetts and New Hampshire. There are procedural and legal differences between our states, yet another reason you should consult with an attorney in your jurisdiction. This answer is intended as general information and as such is relatively universal across the U.S.

Law Offices of Andrew D. Myers

North Andover, MA — Derry, NH

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You need to seek legal counsel ASAP. You have the potential of a case for uninsured motorist coverage plus your workers compensation case. Typically, Enterprise is self insured, but that may vary from state to state.

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Enterprise Car Rentals is self insured in Virginia. You can file an uninsured motorist claim, commonly referred to as a "John Doe" Action in Virginia and make a claim against Enterprise's UM coverage. When filing suit you have to serve the uninsured motorist carrier, or the self insured company that provided the UM coverage on the car.

In Virginia, UM Coverage requires minimum limits of $25,000 per person per accident. These benefits are available under each Virginia policy involved. There may be stacking allowed among different policies if the car was not owned by Enterprise. If the car was owned by Enterprise, then it will be the primary policy, and your own personal policy could be stacked if you had coverage of more than the Enterprise policy, but only to the extent yours was higher. Stacking would allow more funds for settlement, if your injury is so severe that your claim is worth more than the first $25,000 in coverage.

You also have a worker's comp claim, which by law provides lifetime medical benefits and wage loss benefits for a work related injury. A WC claim requires a showing that the accident occcurred within the "Couse and Scope of the Employment". if you were hired to drive E cars, and you were on such a mission at the time, then you are very likely to be within the course and scope of employment, but beware of shady employers and WC insurers who will try and say we told him to go straight to such and such place, and he was not on that route at the time of the accident, or he stopped for gas or lunch, and was "on his own venture" at the time.

Your comments say you were on WC until recently, so I imagine they accepted your claim as compensable and paid wage loss benefits. If your back is just now starting to hurt and you have never seen a doctor since the accident, even after 6 months, you should seek medical attention. However, you first have to put your employer on written notice to provide a "panel" of treating physicians (3 required by law) for you to choose from to seek care for this injury if you have not sought medical care since the accident until now. This late request could be a tough fight to win given the 6 month gap in treatment post accident. How can you show the pain relates back to the accident? The employer will try and show you delayed because you weren't hurt in the accident, and the pain is unrelated to the AA.

It is unlikely you had no care at all since the accident, but if you have received some care, you must continue to treat with the originally assigned doctor absent a referral or showing of good reason to switch doctors. It may be a contentious fight to get medical care for the first time now, since you are 6 months post accident with no medical care to date, as I read your comments, but if you can show through witnesses and your own account that you could not get medical care due to the employer's refusal to pay or refer you for care, this could help prove you have a right to medical care now. But, the doctor you choose (if the employer refuses to provide a panel) must state with reasonable medical certainty that your current back pain relates back to the auto accident, and you must show an objectively manifesting injury, usually described as a "pop" or "snap" and immediate or quickly onsetting pain to the back post-accident, to meet the comp test for an injury by accident.

The WC insurer/employer will have a lien against any third party John Doe action you file to recover the cost of medical care and comp payments they made to you. This lien is subject to negotiation when you prepare to settle the John Doe UM case.

Don't forget that the John Doe personal injury case is actuallly assigned by law to the WC carrier by law if it accepted the claim and paid it, and you have to get a signed consent to pursue your right to file suit against John Doe, and still have to protect their lien in the settlement.

This response is not offered as legal advice, but is only a general informational response for public interest. No one reading this is authorized to claim that an attorney client relationship exists with this writer or the writer's law firm.

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