Swimming Pool Liability Issues

Written by JH Revere, Esq. Summer is in swing and a review of swimming pool liability issues seems in order.  First the statutory law on the subject: Virginia Code § 15.2-921 states in part: For the purposes of this section: “Swimming pool” includes any outdoor man-made structure constructed from material other than natural earth or soil designed or used to hold water for the purpose of providing a swimming or bathing place for any person or any such structure for the purpose of impounding water therein to a depth of more than two feet. “Fence” means a close type vertical barrier not less than four feet in height above ground surface.  A woven steel wire, chain link, picket or solid board type fence or a fence of similar construction which will prevent the smallest of children from getting through shall be construed as within this definition. Any locality may adopt ordinances making it unlawful for any person to construct, maintain, use, possess or control any pool on any property in such locality, without having a fence completely around such swimming pool. .              .              . Any such ordinance may be made applicable to swimming pools constructed before, as well as those constructed after, the adoption thereof. Virtually all localities in Virginia have adopted a swimming pool ordinance requiring fencing (at least four [4] feet in height) with a lockable gate.  The failure to comply with a local ordinance would be construed as negligence per se under most circumstances (drowned minor). Further the Virginia Code permits local municipalities to “regulate and inspect the operation, maintenance, and use of public swimming pools,...

Coming Soon: Changes to a Statute Near You

Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. Many of us authorize medical treatment during the investigation of a claim, when the injured worker is unrepresented, and when no claim has been filed in an effort to limit exposure without a formal award being entered.  However, your ability to do this without potential longstanding effect is soon coming to an end…As of July 1, 2019, any medical treatment authorized and paid for BEYOND a six month period, will impact the statute of limitations for which an injured worker has to file a claim and will act as a basis for the tolling of the statute of limitations. Statute of Limitations:  Virginia Code § 65.2-601 provides that the “right to compensation under this title shall be forever barred, unless a claim be filed with the Commission within two years after the accident.” This requirement is jurisdictional, and the Commission has no authority to adjudicate or award benefits for a claim not filed within that two-year period. See Barksdale v. H. O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977). The voluntary payment of medical expenses did not toll the statute of limitations. See Stuart Circle Hospital v. Alderson, 223 Va. 205, 288 S.E.2d 445 (1982). The exceptions to the statute of limitations were limited pursuant to Va. Code § 65.2-601. In Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284-85, 623 S.E.2d 433, 437 (2005), the Court of Appeals explained: There are only three exceptions to timely filing under the statute of limitations. (1) Code § 65.2-602 provides for tolling of the...

Fraud in the Insurance Industry

Written by Porter Peery, Esq. Edited by Bill Pfund, Esq. According  to insurance industry estimates fraud accounts for approximately 10% of the property/casualty insurance incurred losses and adjustment expenses each year (1).  Based on this estimate, between 2013-2017 property and casualty fraud totaled about $30 billion each year. Automobile accident fraud is one of the most widespread and lucrative fraud schemes nationally. The National Insurance Crime Bureau receives over 60,000 questionable claims each year half of which involve auto accidents (2). Of note, these auto accident schemes are becoming more violent, especially in large metropolitan areas, and often involve large organized rings. Closer to home, the Virginia State Police Insurance Fraud Program 2018 Annual Report indicates that $13,566,013 in fraudulent insurance claims were attempted in Virginia in 2018, a 19% increase from 2017. Disturbingly $3,665,817 in fraudulent insurance claims were actually collected in 2018, a 48% increase from 2017. Since insurance fraud is constantly evolving in the present high tech environment, the approach to detect and prevent fraud must regularly change to keep pace.  Insurers have prioritized combating fraud. Approximately 40% of insurers polled by the Coalition Against Insurance Fraud and SAS Institute in 2019 said their technology budgets will be larger. About 90% of the companies which responded said “they use technology primarily to detect claims fraud”, a significant increase from 2016…(3). Insurers are now able to use “predictive and entity analytics” as new information is added which improves detection capabilities for fraudulent activity (4). At the end of the day, however, any flagged accounts must be reviewed by a well-trained claims’ fraud professional. Most insurance companies now have...

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...