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118 Capitol Street, Suite 400, Charleston, West Virginia 25301

Charleston Lawyers Explain the Basics of Motorcycle Litigation

West Virginia law and motorcycle accidents

When a motorcycle is hit by a car or truck, the rider’s injuries are often severe and require costly medical treatment. But when motorcyclists try to collect compensation to pay for their losses, they find that there are many obstacles to overcome in a motorcycle accident lawsuit. Our attorneys at The Giatras Law Firm, PLLC have more than 30 years experience handling motorcycle crash cases in West Virginia. We stand up for riders.

Modified comparative negligence in West Virginia

One of the biggest hurdles for a motorcyclist who was injured by a driver’s negligence is that juries tend to have an image of riders that’s right out of the Hollywood movies — leather-clad daredevils who storm down the highway in packs looking for trouble. The reality, of course, is that motorcycle enthusiasts come from all walks of life and are far more likely to be a doctor or an engineer than a Hell’s Angel.

But when it comes to juries, misconceptions can be hard to overcome. The bias against riders most often comes into play when judges and juries deal with the issue of fault. In most states, damages are awarded based on the relative fault of the parties. If, for example, you were 20 percent at fault for an accident, then your damages are reduced by 20 percent. This system is called comparative negligence.

West Virginia, however, follows a modified form of comparative negligence. In West Virginia, you can recover no damages if you were 50 percent or more at fault. This works an injustice in cases in which one victim has, say, 51 percent of the fault but suffered, say, 90 percent of the damages. In a crash involving a car and a motorcycle, it’s the motorcyclist who’s most likely to have the lion’s share of the personal injury damages, and it’s the motorcyclist who is likely to be assigned more fault than he or she deserves. West Virginia’s 50 percent rule works like this:

  • The jury considers whether each party was totally or partially to blame for the accident. The consideration of fault includes such factors as who had the right of way, whether the motorcyclist was wearing a helmet, and whether one or both of the parties were speeding or distracted.
  • Then, based on that, the jury assigns a percentage of fault for the accident to each party.
  • If one of the parties was found to be 50 percent or more at fault, that party can receive no damages.
  • If a party was found to be less than 50 percent at fault, that party’s damages will be reduced by his or her percentage of fault. For example, if you were awarded $100,000 in damages but found to be 20 percent at fault, you would receive $80,000 in damages.

This is a big problem for injured motorcyclists, because if you were not wearing an approved helmet, for example, the jury could determine that your violation of West Virginia’s helmet law was the main cause of your traumatic brain injury. You could have hundreds of thousands of dollars in past and future medical bills, and you would not receive a penny in damages. At The Giatras Law Firm, PLLC, we have been litigating comparative negligence issues for more than 20 years. We know how to get justice for riders.

What is the process for filing a motorcycle accident lawsuit in West Virginia?

In a motorcycle accident suit, as in any personal injury claim, you must be able to prove all of the following:

  • The defendant was negligent; that is, he or she failed to exercise the care that a reasonably prudent person would exercise in similar circumstances.
  • You, the plaintiff, were harmed.
  • The defendant’s negligence was the cause of your harm.


Your lawsuit starts when you file the complaint. The defendant can respond to the complaint with a motion to dismiss or an answer, which admits or denies the various allegations in your complaint. The defendant also can allege counterclaims against you.

Then the case goes to the discovery phase, in which the facts are explored and evidence is gathered, such as documents, photos and witness depositions. Many motions and hearings can occur during this phase, as the attorneys debate what evidence must be disclosed and what can be legally withheld. At the end of the discovery period, one or both parties might move for summary judgment, which asks the court to decide that one party or the other deserves to win the case as a matter of law.

Finally, the case will be resolved through a settlement, mediation or trial. The personal injury and auto accident attorneys at The Giatras Law Firm, PLLC stay by your side from beginning to end.

Contact our accident attorneys for help anywhere in West Virginia

At The Giatras Law Firm, PLLC, we represent clients throughout West Virginia from our offices in Charleston. Contact us online or at 888-819-1281 for a free consultation on only personal injury cases. We handle personal injury cases, including motorcycle accidents, on a contingency basis, which means you owe us no fees until you receive compensation.