Written by Brian A. Cafritz, Esq.Virginia has long had a defense-friendly one-year statute of limitations for defamation claims. Under Virginia Code § 8.01-230, the accrual of right of action occurs when injury is sustained. In the context of a defamation action, the cause of action accrues and the statute of limitations begins to run when the injury to reputation is sustained by publication. Va. Code § 8.01-230; see, Weaver v. Beneficial Finance Co., 199 Va. 196, 200-01, 98 S.E.2d 687 (1957).Over the last hundred years, it has been relatively easy to calculate the accrual date for the defamatory acts. If one made a statement or drafted a written letter, the date of publication of the statement or letter became the accrual date. For example, if a photocopy of the same letter was copied and mailed to different recipients on different dates, the law considers each mailing of the same letter to be a new publication that creates a separate cause of action with the statement being heard on different dates in different locations and causing different damages. As a result, based on the date of publication, each mailing of the photocopied letter has its own accrual date for the purposes of the statute of limitations. See Bradford J. Brady v. Stefanie Marshall and M3-Marshall Contracting & Masonry, Inc., (Cir. Ct. Albemarle County, Case No. CL19-1701, J. Higgins, 2021).However, in today’s society, communications through letters is becoming less common. Written letters had been replaced by emails and texts. But today’s technology has changed that as well. The introduction of social media platforms, pod casts, and multimedia communications complicated that calculus...
Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. Last spring, I wrote an article discussing the law of punitive damages in Virginia in the civil litigation context. I focused on the issue of a defendant’s intoxication at the time of a motor vehicle accident. Under Virginia common law, intoxication does not necessarily establish any particular level of negligence, much less the heightened negligence required for a punitive damages award. Huffman v. Love, 427 S.E.2d 357, 360 (1993). Instead, it is only one factor to be considered in determining whether the entirety of the defendant’s conduct showed a conscious disregard for the safety of others. Id. There is a bevy of case law and even an entirely separate statutory framework for driving under the influence of alcohol. Marijuana intoxication, however, is more of a blank slate. When I wrote last spring, Governor Ralph Northam was in the process of proposing amendments to a bill passed by the General Assembly in February that would, among other things, make possession of up to an ounce of marijuana legal for adults over 21 years of age Now, the bill has become law. It is important to pause and discuss what’s in the new law, which deals with the substance of the issue and lays out a three-year process to legalize marijuana and create a regulatory framework for the sale of the product. The New Law (HB2312 – SB1406) Effective July 1, 2021, Virginia legalized the possession of up to an ounce of marijuana[1] for adults 21 and older, as well as the consumption of marijuana in non-public areas. The law...
Written by Gary Reinhardt, Esq. Public adjusters and their contractor allies look for potential claims. For example, they find a roof in poor condition, inspect it, and invariably find hail or wind damage. However, just as likely, the roof has damage from other causes. Despite that, the public adjuster writes up an estimate including everything wrong with the roof, be it poor installation, rot, or wear and tear. An insurer receives this estimate, hires an engineer to inspect the roof, and determines that significant parts of the public adjuster’s estimate include damages excluded from coverage by the plain language of the policy. The insurer refuses to pay for excluded damage, so the public adjuster attempts to circumvent coverage and the policy by invoking the appraisal clause. When the insurer balks at appraising the entire public adjuster estimate, asserting that coverage/excluded damage are not appraisal issues, the public adjuster responds by citing the decision of Coates v. Erie, 79 Va. Cir. 440 (Fairfax Cir. Ct. 2009). Public adjusters claim this Circuit Court decision requires all aspects of the appraisal to go to an umpire, including items the insurer deemed excluded from coverage or not covered by the policy. In the recent Winchester Circuit Court case of Craun v. Erie Insurance Company, (CL21-78), this exact scenario resulted in litigation. After Erie initially paid an insured’s claim, the insured returned several months later with a public adjuster, claiming hundreds of thousands of dollars in additional roof damage. Erie sent its engineer back out to the property to re-inspect. While giving the benefit of the doubt to some additional damage, Erie denied coverage...
Written by Stephanie Cook, ESQ. Edited by Bill Pfund, ESQ. SB 1108 – Raises Jurisdictional Limits In General District Court SB 1182 – Raises Motor vehicle Liability Insurance Coverage Limits SB 1108 has passed and will become law in Virginia on July 1, 2021. This new law increases from $25,000 to $50,000 the maximum civil jurisdictional limit of general district courts for civil actions for personal injury and wrongful death actions only. Note that $25,000 remains the jurisdictional limit for all other claims such as those involving property damage or breach of contract. It also now requires an appeal bond from a defendant who wishes to appeal a decision from general district court to circuit court by stating, “in a case where a defendant with indemnity coverage through a policy of liability insurance appeals, the bond required by this section shall not exceed the amount of the judgment that is covered by a policy of indemnity coverage.” Previously, if an insured defendant wanted to appeal a general district court decision to circuit court, an appeal bond was not required. Instead, all that was required was a “written irrevocable confirmation of coverage in the amount of the judgment.” As a result of this new law, we will surely see more claims filed in general district court as opposed to circuit court. There is little to no discovery in general district court, so plaintiffs have an incentive to file in general district court rather than circuit court in order to save costs. In addition, there is no jury in general district court. We should also expect to see a flurry of...
Written by Danny Royce, Esq. Several pieces of proposed legislation could create big changes in the landscape of Auto Virginia Liability Insurance Coverage, and could significantly impact the defense of our clients in claims arising from motor vehicle accidents. There are three proposed pieces of legislation before the General Assembly of note and which are being monitored closely by KPM. 1) SB 1182: Motor Vehicle Liability Insurance; Increases Coverage Amounts. This proposed legislation would increase motor vehicle liability insurance coverage amounts from $25,000 to $50,000 in cases of bodily injury or death of one individual, and from $50,000 to $100,000 in cases of bodily injury or death to multiple individuals as a result of one accident. The bill would also require that self-insured operators of taxicabs maintain protection against uninsured and underinsured drivers with current limits of $25,000, $50,000, and $20,000 respectively. This proposed legislation would apply to policies issued or renewed on or after January 1, 2022. This bill advanced out of the Senate Commerce and Labor Committee passed the Senate on January 25, 2021 with a vote of 27 to 11. The bill would amend and reenact §§46.2-419, 46.2-472, and 46.2-2057 of the Code of Virginia relating to liability coverage limits. The text of the new bill can be found at https://lis.virginia.gov/cgi-bin/legp604.exe?211+ful+SB1182. The current amount of liability coverage ($25,000) required by statute was first enacted in 1975, and has not been updated since that time. This would represent a huge change for carriers, insureds and claimants. 2) SB 1195: Motor Vehicle Insurance; Underinsured Motor Vehicle, Uninsured Motorist Coverage. This proposal would have a...
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. The Workers’ Compensation Act provides compensation for permanent partial loss of use of certain body parts, including the loss of a leg. See Code § 65.2-503(B)(13). “[F]or the permanent partial loss or loss of use of a member, compensation may be proportionately awarded.” Code § 65.2-503(D). A numerical rating of the permanent partial loss of use of the injured body part is required so that benefits may be proportionally awarded according to the percentage loss and determined by the schedule in Code § 65.2-503(B).” See, Va. Nat. Gas, Inc. v. Tennessee, 50 Va. App. 270, 279 (2007) (quoting, Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652, 654(1994)). An injured worker bears the burden of proving the level of impairment from a work-related injury. Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677-78 (1991). “Where the issue concerns a permanent partial loss of use, the Commission must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented.” Id. at 677 (quoting, County of Spotsylvania v. Hart, 218 Va. 565, 568 (1977)). But what happens when an injured worker has a compensable injury which requires a surgical implantation of a prosthetic which later improves the injured workers’ function? Is the permanent loss of use determined PRIOR to any surgical correction OR after any such replacement, as the replacement is undertaken to provide the injured worker with more function? This question was recently answered by the Court of Appeals in Loudoun Cnty. v. Richardson, 70 Va. App. 169 (2019). In this case, the injured...
