W.Va. pays hundreds of residents’ auto repair bills each year. Here’s how. | West Virginia

CHARLESTON — Inside a windowless room in one of the handful of non-descript government buildings inside the Capitol Complex in Charleston, Legislative Claims Commissioner J. Rudy Martin called a man up for his case in early November.

The man sent in a claim against the state saying he hit a pothole and needed to replace all four of his tires. The lawyer defending the Division of Highways asked how a pothole could result in all four tires being damaged.

Turns out, there were two potholes — one, two and half feet wide by three feet deep on the passenger side of his car, and another good-sized hole about a foot and a half away from his driver’s side.

And he couldn’t swerve to miss either due to oncoming traffic.

Hearing the description, Martin threw his hand up and grinned. The DOH attorney agreed right there to pay up to the man’s $500 insurance deductible.

Over the last 10 years, the state has paid $8.6 million out of the billion dollar state road fund to West Virginia motorists on behalf of the DOH. Those claims can range anywhere from a few bucks to more than $1 million.

And in a state where roads are considered a top issue — and more than a billion has been taken out in bonds to fix them — residents can at least get a little relief when the state fails to do its part in maintaining them.

Here’s how it works.

It starts with a claim

Suing the state for any kind of money is tricky, because legally the state doesn’t have to pay. The state constitution says the state can’t be a defendant in court, unless it has to do with a garnishment proceeding.

However, there’s a three-member panel of lawyers called The Legislative Claims Commission that handles what the state calls “moral obligations” — meaning legally they don’t have to pay the claim, but it’s the right thing to do.

The vast majority of those claims are against the Division of Highways.

In 2019, a Florida Highway Patrolman was awarded $1.29 million after he hit a pothole on U.S. 60 while riding a motorcycle, breaking his ankles and his collar bone. His injuries caused him to miss nine months of work.

On the flipside, a Harrison County couple was awarded $20.85 in 2018 for hitting a pothole. The damage to their 2010 Volkswagen Jetta only amounted to that much, but their insurance policy had a $500 deductible.

The amount of money you can claim on run-of-the mill road damage depends on what kind of insurance you’re carrying.

For people with full-collision insurance — which is required if you’re paying a car loan — the claim is capped at the amount of your insurance deductible. That’s because your insurance covers the rest of the damage.

However, for people with liability insurance — a much cheaper policy that makes the car legal to drive — there’s no cap at all.

When filing the claim, you don’t need a lawyer and you don’t pay a filing fee. You go to the Legislative Claims Commission website, download the Vehicle/Property Damage Claim form and send it in.

You will need to include basic information about the date, time and place of the accident, as well as the year, make and model of your car.

You will also write how the accident occurred and why DOH ought to be held liable.

Also attach copies of bills, receipts and estimates on your claim, as well as a summary of your insurance policy.

What can I expect when my case is heard?

If you’ve ever gone to court to fight a traffic ticket, a claims hearing is a lot like that. But it’s not nearly as formal.

The three commissioners don’t wear robes, they don’t sit on an elevated “bench.” And unlike a regular judge, they’re much more willing to take the time to answer your questions and explain the process to you.

Personal appearances are for the most part required, but in case of extended travel time, illness or work scheduling issues, they can do it over the phone. The commission does travel to cities around the state for hearings outside of Charleston once a year.

During the most recent hearing, J. Rudy Martin, the head of the commission, spent about 10 minutes explaining the process to a couple.

For typical road claims, the main two questions are: who is responsible for the damage, and how much did it cost?

Some of those questions can be answered ahead of time. An estimate from a repair shop can settle how much in damages would be awarded. Or the Division of Highways could acknowledge that the pothole should’ve been filled in.

That’s why in the lead up to a hearing, you might speak directly with a lawyer from the Division of Highways. You’ll get that contact information after the division responds to your claim.

Regardless of the question at hand, Martin said it’s pretty simple.

“What I want to do first is ask her (DOH attorney) what it is about your claim that we need to know, and then we’ll give you an opportunity to tell us whatever you need to,” Martin told the claimant.

Sometimes there’s a genuine question of liability. One woman testified she rounded a curve and had to put her truck in the ditch to avoid a head on collision. She said large rocks thrown in the ditch broke her tie-rods. The DOH had failed to cut away foliage that made seeing around the curve difficult, she alleged.

For that claim, the Commission brought up a DOH investigator, swore him in and had him testify. The investigation included a site visit to the scene of the accident and interviews with the maintenance department. The commission told her they’ll let her know what they decide.

What happens now?

Alright, so you’ve done your hearing. Maybe the DOH agreed to an amount of money. Or maybe they’re fighting you tooth and nail.

Either way, the commission will let you know in 60 to 90 days, in writing, whether your claim has been approved or denied. If it’s been approved, they’ll let you know the amount they recommend.

That’s the operative word here — recommend. The commission itself can’t give you the money. All they can do is tell the state Legislature what that amount ought to be.

Every year, during the regular legislative session the West Virginia Legislature votes on a claims bill. While the bill generally sails through, lawmakers can change amounts paid to claimants.

When the governor signs the bill, the commission will send you a packet to sign with a notary. Once everything is processed, the check will be mailed in August.

When Martin explained the process at a recent claims hearing, he said he understands it takes way too long. While most claims are heard and processed within the year they are filed, they can sometimes be delayed to the next year.

“I see the dismay, and we are also dismayed. We had undertaken efforts to try to expedite these claims, so that we could get paid sooner,” he said.

A bill proposed last year would have allowed the DOH to pay claims of less than $3,000 directly, without having to put them through the legislative process. It passed the House of Delegates unanimously, but died in committee in the state Senate.

“If you are dissatisfied with the length of time it takes to get a claim of the nature of yours paid, then we suggest that you call your senators,” Martin said.

This article first appeared on Mountain State Spotlight and is republished here under a Creative Commons license.