Virginia has passed, effective July 1, 2018, a new Va. Code § 8.01-417 that has created much consternation, but little change. That statute was titled “An Act to amend and reenact § 8.01-417 of the Code of Virginia, relating to personal injury claim; disclosure of insurance policy limits. [S 535]” during its pendency, and is “Copies of written statements or transcriptions of verbal statements by injured person to be delivered to him; copies of subpoenaed documents to be provided to other party; disclosure of insurance policy limits” now that it has passed.
This new Va. Code § 8.01-417 creates an affirmative obligation on the part of one who takes a written or recorded statement from a person who has suffered a personal injury to provide a copy (or verified transcription) within 30 days (Section A). It also requires, during a legal proceeding, when a party issues a subpoena for and receives documents, that party must provide a copy to another party who requests copies in writing, so long as reimbursement is provided for those (Section B). Both were good policy before, and routinely took place in the opening weeks of a lawsuit regardless. To be honest, it helps keep the parties honest.
Sections C and D (D involving death cases) require that in the case of a motor vehicle accident an insurer provide upon request, even before the filing of a lawsuit, (i) policy limit information, and (ii) the policyholder’s address within 30 days. Under these same sections, the requestor must provide the insurer with “the date of the motor vehicle accident, the name and last known address of the alleged tortfeasor if it has been reported to the requesting party, a copy of the accident report, if any, and the claim number, if available,” as well as the injured party’s medical records, medical bills, and wage-loss documentation related to the injury and “the death certificate of the decedent; the certificate of qualification of the personal representative of the decedent’s estate; the names and relationships of the statutory beneficiaries of the decedent; medical bills [and] a description of the source, amount, and payment history of the claimed income loss for each beneficiary.” Where medical costs and lost wages claimed equal or exceed $12,500 or the insured driver has been convicted of Maiming in a DUI (§ 18.2-51.4), DUI (§ 18.2-266), underage DUI (§ 18.2-266.1), or DUI involving a commercial vehicle (§ 46.2-341.24) related to the accident the insurer is still required to provide policy limit information and the policyholder’s address even if the insurer intends to disclaim the accident. Disclosure under these sections is specifically precluded from being used as an admission of liability, and does “is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.”
Section E allows a self-insured locality to provide work address and the name of a person who can accept service instead of the insured’s home address. Section F essentially excludes insurance agencies and agents as authorized representatives or agents required to respond.
This code section does not substantially change Virginia law, it only streamlines it, making the initiation of a lawsuit somewhat less complicated. It provides cover to the insurer for providing a defendant’s address to allow for service. It, on its face, does not require the production of ALL written statements taken by an insurer, only those from the injured party (“Any person who takes from a person who has sustained a personal injury a signed written statement or voice recording…”). It does not require production of surveillance materials, or statements taken from those other than the injured party, or insurance claim notes. It also does not, in and of itself, provide any penalty for violation, and does not clearly include workers’ compensation claims (though I would argue it does encompass them).
In my practice I have had cases where adjusters or insurance companies have “lost” written or recorded statements, and been involved in disputes with Plaintiffs’ counsel over documentation of damages claimed. This statute should eliminate both problems, which is not something either the defense bar, the plaintiff’s bar, or the insurance industry should have any fears about. In short, insurers, employers, and defense counsel need to take note, and may need to institutionalize a deadline to provide this information, but need not fear. If you have questions about this article, please contact Dov Szego at 804.377.1263 or firstname.lastname@example.org.