Written by Chris Flynn, Esq. Edited by Bill Pfund, Esq. An earlier article addressed two reasons why asking if a plaintiff has filed for bankruptcy during discovery is an overlooked but important question. Those reasons are to raise the issue of the admissibility of the debtor-plaintiff’s medical bills as well as to challenge the standing of that debtor-plaintiff in the non-bankruptcy matter. The question of standing however is exclusive to Chapter 7 debtor-plaintiffs (see Wilson v. Dollar General Corp., 717 F3 337, 343-44 (4th Cir. 2013)). Therefore, aside from challenging the admissibility of the debtor-plaintiff’s medical bills, is there any challenge that can be raised when a plaintiff in a non-bankruptcy matter has filed a Chapter 13 bankruptcy case? The answer is, yes. Judicial estoppel is a legal defense used for early dismissal of cases brought by bankrupt plaintiffs. In a bankruptcy, judicial estoppel applies if a debtor-plaintiff omits any claim that the plaintiff knew of at the time of filing for bankruptcy or learned of while the bankruptcy case was pending. If a defendant succeeds in establishing judicial estoppel, the plaintiff is barred from pursuing a case regardless of the claim’s merits. The Fourth Circuit has held that judicial estoppel applies when: (1) the party to be estopped is advancing an assertion that is inconsistent with a position taken during previous litigation, (2) the position is one of fact instead of law; (3) the prior position was accepted by the court in the first proceeding; and (4) the party to be estopped has acted intentionally and not inadvertently. Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th...
Written by Gary Reinhardt, Esq. As we enter the “endemic” phase of COVID-19, many things changed in our society. For instance, after a couple of years of being isolated, it seems people want to gather more. Further, with the multi-year moratorium on indoor weddings caused by the pandemic, the rush to book those venues created a logjam for the foreseeable future, pushing back planned matrimonial bliss. These situations result in even more living together arrangements. As for insurance, how does this situation impact who qualifies as an “insured” in a homeowners’ or tenant policy and along with that, who has coverage? For example, consider an insured with a live-in girlfriend. Suppose she is not on a lease or deed (and moved in after application, to avoid the easy argument of rate evasion). An insured may attempt coverage for his girlfriend in two aspects, either by claiming she is “family” or a “family member” or invoking the “personal property of others” clause. Initially, the typical policy requires for coverage that “The personal property must be owned or used by you, or your family members who reside with you . . .” What happens when a person, not the named insured (“you”), suffers a loss of his/her exclusive property like clothes or some sort of family heirloom? Many property insurance policies do not define “family member.” However, auto policies, like the standard specimen policy posted to its website by the Virginia Bureau of Insurance, does: “Family member” means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. Likewise,...
Written by Daniel Royce, Esq. Edited y Bill Pfund, Esq. While much time, attention, and focus in public risk management is rightfully attuned to issues involving law enforcement and emergency personnel, equal attention need be paid to the opposite end of the spectrum, and the myriad issues involving incarcerated persons. A novel issue recently arose in a case involving a contract between the Culpeper County Sheriff (“Sheriff Jenkins”) and the Piedmont Regional Jail Authority (“PRJA”), and whether an inmate was an intended third-party beneficiary of said housing and medical care contract. The case of Hubbard v. Jenkins was recently heard in the Court of Appeals of Virginia and decided on February 7, 2023. 2023 Va. App. LEXIS 73 *; 76 Va. App. 533; 833 S.E.2d 1. Facts and Background In July 2016, Sheriff Jenkins and the PRJA entered a contract which provided for housing the inmates in Sheriff Jenkins’ custody at the Piedmont Regional Jail. Paragraph Four of the contract outlined financial responsibility for medical services rendered to Culpeper inmates. Specifically, the contract specified PRJA’s financial responsibility for routine medical treatment of the inmates and delineated categories of medical care that would require pre-approval by the Sheriff. Emergency medical treatment was addressed separately in Paragraph Two (b) and Paragraph Five stated that the Sheriff “will pay to PRJ[A]…[m]edical costs pursuant to paragraph 4 above,” which lists these costs as “exceptions” that require “prior approval from the Sheriff.” Hubbard was an inmate at the Piedmont Regional Jail. In August 2018, he was assaulted by another inmate and sustained injuries. Hubbard filed a lawsuit in the Eastern District of Virginia against...
Written by Jessica, Gorman, Esq. Edited by Bob McAdam, Esq. Another opinion recently issued by the Full Commission serves as a reminder that every case is fact specific. In Agyemang v. The Gardens at Warkwick Forest, JCN VA00001874767 (January 10, 2023) the Full Commission reversed and vacated an award issued by the Deputy Commissioner. In doing so, the Commission interpreted the “actual risk test.” The Claimant, a food attendant, alleged that she sustained an injury by accident to her left hand on May 1, 2021. She sought medical benefits and periods of indemnity benefits. The Employer raised numerous defenses against the claim, including that the Claimant did not suffer a compensable injury by accident arising out of and in the course of her employment. The Deputy Commissioner concluded that the Claimant proved that her injury arose out of her employment. The Deputy Commissioner summarized the evidence as follows: The Claimant testified that as she was placing several small, light plastic coffee mugs atop a refrigerator in a kitchen in the course of her work as a food attendant, she jammed her left hand on the refrigerator. The histories contained in the available medical records as well as her report of injury to the employer track the Claimant’s credible testimony regarding this incident. Although the Claimant’s injury may have occurred as a result of her own inadvertence, a Claimant’s negligence does not bar an award of compensation and it is found that her injury occurred as a result of an accident as defined under the Act. This incident is an “identifiable incident or sudden precipitating event,” that occurred as a...
Written by Daniel Royce, Esq. Few public risk issues are as poignant, topical, and controversial as liability faced by law enforcement officers for actions undertaken in the line of duty. Our TVs and Social Media feeds are replete with stories of officers accused of bad behavior in the line of duty. Often, these matters result in civil actions where Courts are thrust into the difficult role of deciding cases wrought with emotion in an area of law not always well understood. The Supreme Court of Virginia was recently faced with such a case in the matter of Colas v. Tyree, 2023 Va. Lexis 4*, Record No. 211226 (Sup. Ct. Va., Jan. 26, 2023). As often the case, the facts underlying this matter are tragic. On February 9, 2019, Officer Bradley Colas shot and killed Jeffrey Tyree. The Estate of Tyree brought an action for gross negligence and battery. The Estate alleged that police (and specifically Colas) shot Tyree while he was unarmed and lying on the ground. The trial Court denied Colas’ motion to strike, and the jury found Colas liable and awarded damages to Tyree’s Estate on the battery count only. Colas appealed the matter on the grounds that his Motion to Strike should have been granted because at the time he discharged his weapon, he was acting in defense of another, and thus the fatal shot was justified. In other words, Colas was asserting he had proved his affirmative defense as a matter of law. The Court found that the Estate’s own un-contradicted evidence established that Colas was justified, and applied the adverse party witness rule in...
