New Court of Appeals Ruling on Medical Provider Applications

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. In a case of first impression, the Court of Appeals of Virginia has interpreted Virginia Code §65.2-501.1 in Roanoke Ambulatory Surgery Center v. Bimbo Bakeries , USA, 69 Va.App. 675, 822, S.E.2d 675 (2019). In Bimbo Bakeries (BB), the Claimant was injured while working for BB on February 23, 2015.  RASC provided treatment to the Claimant. On April 29, 2015, RASC performed a rotator cuff repair surgery.  RASC submitted a bill of $24,000 for the surgery to BB.  On June 12, 2015, BB delivered payment of $5000 to RASC and a “Review Analysis” that the balance of the bill was objected to as being in excess of the amounts authorized by law. RASC performed a second surgery on the Claimant on September 18, 2015 and submitted a bill for $12,000 to BB. On October 30, 2015, BB delivered to RASC payment of $3000 and a “Review Analysis”, again arguing that the bill was in excess of amounts authorized by law. The Claimant filed his Claim for Benefits on June 27, 2016 for the accident of February 23, 2015.  On July 28, 2017, the Commission approved an agreement between the Claimant and BB for lifetime medical benefits for treatment of his right shoulder rotator cuff injury. On September 1, 2017, RASC filed a claim with the Commission requesting full payment for the services it rendered to the Claimant. The Deputy Commissioner found that the claim was not time barred. The Deputy Commissioner also noted that BB did not put forth any evidence to rebut the provider’s evidence that the charges...

Decommissioning the Bare-Metal Defense in Asbestos Litigation

Written by Ben Woody, Esq. Edited by Bill Pfund, Esq. When a manufacturer produces “bare-metal” products that require installation of asbestos products produced and installed by third parties, can the “bare-metal” manufacturer be held liable for injuries caused by asbestos exposure? Last month, the Supreme Court of the United States answered “yes.” Air & Liquid Systems v. DeVries, 139 S.Ct. 986 (2019). Asbestos litigation has consumed the products liability space for decades. Asbestos claimants contend that neither the U.S. veterans’ benefit system nor asbestos bankruptcy trust fund system provide adequate compensation to individuals with asbestos claims. Accordingly, manufacturers of so-called bare-metal products have found themselves the defendants in asbestos litigation, as they are the only solvent targets left standing. These bare-metal manufacturers have relied a “bare-metal defense,” under which equipment manufacturers are not liable for injuries caused by asbestos insulation and asbestos-containing components obtained by the user from other sources and added to the equipment by a third party post-sale. This “defense” undergirds the principle that these bare-metal manufacturers did not owe a duty to the injured parties. In the years leading up to the DeVries case, federal courts across the country have developed three different approaches to the bare-metal defense. Under the first, more plaintiff-friendly approach, the manufacturer may be liable when it was foreseeable that the manufacturer’s product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part. The second, more manufacturer-friendly approach, there is not liability for manufacturers who did not make, sell, or distribute a part that did not have...

Nonsense and Nonsuits — The Fairfax Circuit Court Awards Costs and Fees after Plaintiff’s Second Voluntary Nonsuit

Written by Chris Bergin Edited by Brian A. Cafritz Each legal jurisdiction across the country has its own unique set of procedural rules and potential pitfalls. In Virginia, one of our legal oddities is the “voluntary nonsuit.” As Jessica Relyea of KPM LAW’s Restaurant and Retail Litigation team has previously explained, a nonsuit is a voluntary dismissal, which allows a Plaintiff to correct a flaw in her case and refile in the future. In practice, voluntary nonsuit is a free “do-over.” In Virginia, every Plaintiff is allowed one nonsuit as a matter of right. This nonsuit may be taken any time before the case has been submitted to the jury. Va. Code Ann. § 8.01-380(B). The Plaintiff does not need the consent of the parties or the approval of the Court to take the first nonsuit. Plaintiffs routinely use nonsuits to avoid summary judgment, fix procedural or strategic errors errors, defeat the statute of limitations, or short-circuit a trial that appeared to be going poorly for the Plaintiff.  The voluntary nonsuit is one of the most potent tactical weapons available to Plaintiffs in Virginia. Nevertheless, it is not all-powerful. For example, if the Plaintiff wants to take a second nonsuit under Code §8.01-380(B), she must obtain Court approval. And, as Judge Gardiner from the Fairfax Circuit Court recently held, Code § 8.01-380(b) allows the Judge to award court costs and fees against the nonsuiting party for a second nonsuit. In the recent case of Lezlie Day v. Gregory Day, (which was decided on April 1, 2019), the plaintiff, Lezlie Day, filed an action for divorce against her husband, Gregory,...

When Indemnification Clauses in Construction Contracts Leave Parties Feeling Void

Written by Matt Daly, Esq. Edited by Bill Pfund, Esq. A critical step in every construction defect claim is to review the contracts between the parties involved in the construction to evaluate the indemnification rights and obligations of the parties.  Virginia Code § 11-4.1 plays an important role in that process.  This section, which renders certain indemnification provision void, states in pertinent part: “Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.” For example, in layman’s terms, if a general contractor enters into a construction contract with a subcontractor that requires the subcontractor to indemnify the general contractor for the sole negligence of the general contractor, the entire indemnification agreement is void under the statute.  Notably, it’s the language of the indemnification provision in the contract – not the circumstances from which the claim for indemnification arose – that determines whether the indemnification provision is void under § 11-4.1.  Uniwest Construction, Inc. v. Amtech Elevator Services, 280, Va. 428, 441 (2010). While § 11-4.1 obviously pertains...

Preventing Identity Theft – Passphrases vs. Passwords

Written by Bill Pfund, Esq. Nearly 60 million Americans have been affected by identity theft according to a 2018 survey by The Harris Poll. That same survey indicates nearly 15 million American consumers experienced identity theft in 2017. So, yes, the crime of identity theft is relatively common. And it’s probably safe to assume it won’t be dropping anytime soon. The reason? Data breaches. While there are many stories of identity theft in the news, what we tend to hear more about are data breaches—in which a company or other organization’s customer’s records, which may include full names, Social Security numbers, and other personal information, are accessed fraudulently. In 2017, there was a record high of 1,579 data breaches, exposing more than 178 million records. The big one—involving Equifax, one of the three major credit reporting agencies—received a lot of attention. Not only was the number of potential victims quite large at 147.9 million, the kind of information exposed was significant. It included names, Social Security numbers, birth dates, addresses and, in some instances, driver’s license numbers. What are the most common types of identity theft? According to the Federal Trade Commission, the government agency that maintains a sort of warehouse for identity theft complaints, the crime falls into six major categories: Employment- or tax-related fraud (34%) What it is: A criminal uses someone else’s Social Security number and other personal information to gain employment or to file an income tax return. Credit card fraud (33%) What it is: The thief uses someone else’s credit card or credit card number to make fraudulent purchases. Phone or utilities fraud (13%)...