What is a Nonsuit and Why Should it Matter?

Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. Almost every state has certain rules or procedures that are unique to that jurisdiction.  In Virginia, one of our legal oddities is the existence and breadth of the voluntary nonsuit.  A voluntary nonsuit in state court is a procedural right to voluntarily dismiss the case, but it is created by statute.  Va. Code Ann. § 8.01-380.  Although it is a voluntary dismissal, a nonsuit does not operate the same way as a voluntary dismissal in federal court.   It allows the Plaintiff to correct a flaw in her case and reset the matter to the start in a future filing, with no real penalty or hardship.  The Supreme Court of Virginia has described a voluntary nonsuit as a “powerful tactical weapon in the hands of Plaintiff.”  Trout v. Commonwealth Transp. Comm’r of Va., 241 VA 69, 73 (1991). Given this tool at plaintiff’s disposal, it is important for all defendants to understand what a voluntary nonsuit is, how it can be used, and how it may impact their case. In Virginia, a Plaintiff is allowed one nonsuit as a matter of right, which can be taken at any point before a motion to strike the evidence has been sustained or before the case has been submitted to the jury.  Va. Code Ann. § 8.01-380.  This means a Plaintiff can nonsuit her case while a motion for summary judgment is pending or in the middle of trial if she does not like the make-up of the jury or how her doctor testified.  Plaintiff does not need the consent of all parties...

Inadvertent Disclosure of the Claim File – When Is It a Waiver of Privilege?

Written by Stephanie G. Cook, Esq. Edited by William J. Pfund, Esq. A recent opinion in the United States District Court for the Western District of Virginia, Abingdon Division, provides an excellent guide as to what arguments to make upon the inadvertent disclosure of privileged documents. It includes an in depth analysis of whether the attorney client privilege and the work product privilege have been waived.  Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 162058 (October 2, 2017) (vacating Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 18714 (Feb. 9, 2017). In Harleysville, an insurance company filed a declaratory judgment action asking the court to find that it had no duty to pay benefits under a policy to its insured, Holding Funeral Home. The funeral home had burned to the ground, and an expert hired by Harleysville determined the fire had been intentionally set. Harleysville sought to deny coverage on the grounds of material misrepresentation. During Harleysville’s investigation, an investigator for Harleysville shared information with the National Insurance Crime Bureau (NICB) by uploading it to a “Box Folder” on an internet file sharing service.  An email with a sharing link was sent by the investigator to NICB. No password was required in order to access the folder. During the course of discovery in the declaratory judgment action, counsel for Holding issued a subpoena to NICB requesting their entire file pertaining to the fire. NICB produced the email from Harleysville’s investigator. By this time, the Box Folder included the entire claim file. Using the link in the email, counsel for Holding reviewed...

3 Hot Legislative Bills to Watch: Punitive Damages May Double!

Written by Kate Adams, Esq. Edited by William J. Pfund, Esq. There are three important Bills before the Virginia Senate and House of Delegates that could have a substantial impact on the damages claims that plaintiffs allowed to pursue in Virginia, and the amount of punitive damages plaintiffs are able to recover. The first Bill to watch is House Bill 323 which proposes to create a new category of claims in Virginia for loss of consortium. Virginia has long refused to recognize a cause of action for loss of consortium. House Bill 323 seeks to change this long held principle and create a cause of action for loss of consortium for the injury of a spouse, parent or minor child. The Bill would create a new Code Section, 8.01-38.2, and would allow the spouse of a person who suffers personal injury, the parent of a minor child who suffers personal injury, and the adult child of a person who suffers personal injury to recover damages for loss of consortium. Damages would include loss of services, loss of society and companionship, and lost wages of the person who has to care for the injured person or the minor children of the injured person. Under the proposed Bill, a spouse could recover damages for the loss of sexual relations with the injured person. The bill provides that such a cause of action may be brought independently or together with the injured party’s cause of action. If this Bill passes, the number of claims could dramatically increase and what were relatively minor claims could become more expensive to resolve. A simple car...

An Update on “Termination for Cause” in Workers’ Compensation

Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release.   Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...

KPM LAW wins Virginia Supreme Court case making indemnity contracts easier to enforce

Written by Brian Cafritz, Esq   Practically every business, in some form or fashion, relies on contractors and vendors to efficiently operate.  Almost all contracts governing these relationships contain some form of an indemnity clause.  Whether it is a retailer, restaurant, or service industry contract, these indemnity provisions allow parties to deliberately and intelligently control risk.   Unfortunately, when something goes wrong, enforcing those indemnity agreements can be more difficult than getting a party to agree to indemnity in the first place.  Recently, KPM LAW sought to enforce one such indemnity provision for one its clients. In doing so, we opened the door to allow for an easier means of enforcing indemnity agreements in Virginia.   On February 1, 2018, in the case of Dominion Nuclear Connecticut, Inc. v. Securitas Security Services USA, Inc., ___ Va. ___ (2018) Record No. 170130, the Virginia Supreme Court agreed with KPM LAW attorneys and ruled that Dominion could rely upon issues raised in its affirmative defense to trigger the duty to defend in an indemnity clause.   The facts of the case were largely undisputed.  Dominion operated a Nuclear Power Plant in Connecticut.  As part of its operations, it contracted with Securitas to provide security services at the power plant.  The contract contained an indemnity provision requiring Securitas to defend and indemnify Dominion to the extent the claim arose from Securitas’s negligence.  One day, a Securitas guard slipped and fell on ice as she was performing her security rounds at the power plant.  She sued Dominion under a premises liability theory. The only allegation in her Complaint was that Dominion was negligent...

Supreme Court of Virginia Rules on Various Issues Frequently Arising in Trial

Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. One of the Virginia Supreme Court’s most recent decisions touches on various issues that may, and often frequently do, arise in trial. In Emerald Point, LLC, et al. v. Lindsey Hawkins, et al., the tenants of an apartment complex prevailed in a jury trial against defendants, their landlord and its management company, for injuries from alleged carbon monoxide poisoning. 2017 Va. LEXIS 197 (2017). Plaintiffs’ apartment was heated by a natural gas furnace. On several occasions the carbon monoxide detector in the unit was activated. Following various inspections and maintenance calls, the furnace was replaced. For this appeal, there is no dispute that plaintiffs suffered injuries as a result of CO exposure. The Supreme Court addressed the following issues, in pertinent part, on the defendants’ appeal: (1) whether an expert’s testimony was properly allowed despite failure to disclose the opinion in accordance with Rule 4:1(b)(4)(A)(i); (2) whether the trial court erred in using an adverse inference jury instruction; and (3) whether the court properly allowed plaintiffs to increase their ad damnum following the close of evidence and over defendants’ objection. A summary of the Supreme Court’s pertinent rulings are as follows: Expert Testimony Disclosure The pretrial scheduling order entered in this matter mandated that “all information discoverable under Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme court of Virginia shall be provided or the expert will not ordinarily be permitted to express any non-disclosed opinions at trial.”  The expert relied on a “very recent paper” to support his contention that exposure to CO leads to the development of dementia....