July 2017 – Legislative Update

Written by Beth Gould, Esq.

Edited by Bill Pfund, Esq.

The Virginia General Assembly convened its 2017 session on January 11, 2017 and adjourned sine die on February 25, 2017.  In total, both houses of the General Assembly passed 885 bills and sent them along to Governor McAuliffe for signature or veto.  Governor McAuliffe vetoed only 49 bills, while the remainder became law, effective either July 1, 2017 or January 1, 2018.  What follows is a discussion of some of the various bills and amendments which go into effect July 1, 2017 which KPM Law believes will be of interest and consequence to our readers.  Should you have any questions regarding these bills and amendments, or questions regarding any bill or amendment not discussed here, please do not hesitate to contact us.

Motor Vehicle Safety Inspection; Superintendent Shall Provide Inspection Information Upon Request:  Virginia Code § 46.2-1163 was amended to include a paragraph directing the Superintendent of the Department of State Police to provide state inspection information to “an individual or corporate entity or such entity’s agent” upon written request.  The information provided will not include personal information, but information relating to vehicles’ motor vehicle safety inspection.  A reasonable fee may be charged for the provision of this information.  Such information could be useful to insurers investigating personal injury and property damage claims, assessing potential fraud or misrepresentation by insurance applicants, or performing other various underwriting functions.

Va. Code § 46.2-1163; HB 2269.

Medical Records or Papers; Fee Limits, Penalty for Failure to Provide:  Virginia Code § 8.01-413(B) was amended to extend the time limit for the provision of medical records upon request and codify limits on the fees to be charged for the provision of such medical records.  Whereas under the previous iteration of this Code Section, healthcare providers were required to respond to a valid request for medical information within fifteen (15) days, that time period has been extended to thirty (30) days.  If the healthcare provider is unable to comply with the request within thirty (30) days, the healthcare provider is directed to notify the requesting party of the reason for the delay.  They then will have up to an additional thirty (30) days to comply with the request, but not more.  Thus, this amendment will likely impact the amount of time involved in investigating the medical portion of any civil personal injury claim.

Individuals or entities requesting records be produced may specify the format they would prefer and healthcare providers and healthcare providers are directed to comply with such requests if they are able.  If the healthcare providers are not able to comply with the request – for example, if the requesting party prefers to have an electronic version but the healthcare provider does not keep its records electronically and is not capable of converting the records to electronic formats – then the records may still be produced in hard copy format.  Receiving records electronically is many insurers’ preference and thus this amendment is a boon for that purpose.  Receiving electronic versions of records will also reduce waste and costs associated with copying and record production, which can be significant in cases where a claimant has a severe injury and/or lengthy prior medical history.

The amendment further caps the fees which may be charged for the production of medical records.  For paper copies, healthcare providers may charge $0.50/page up to fifty (50) pages and $0.25/page for every page over fifty (50) pages.  Providers may charge $1.00/page for hard copies from microfilm.  They may also charge a search and handling fee of not more than $20.00.  For records produced in an electronic format, healthcare providers may charge $0.37/page for every page up to fifty (50) pages and $0.18/page for every page over fifty (50) pages.  They may also charge a search and handling fee of not more than $20.00.  The total cost of production of electronic records, including shipping, search, and handling, is not to exceed $150.00 from July 1, 2017 through July 1, 2021.  On July 1, 2021, the maximum total cost of production will increase to $160.00.

Va. Code § 8.01-413; HB 1689.

Dangerous Dog: Virginia Code § 3.2-6540 was amended to clarify the definition of dangerous dog, clarify certain exemptions, and decrease the time period for compliance with requirements.  A dangerous dog is one who has bitten, attacked, inflicted injury upon, or killed a companion dog or cat.  However, the act is amended to state that if a law enforcement officer or animal control officer finds that no serious injury occurred, as determined by a licensed veterinarian, the animals involved were both owned by the same person, or the injury occurred on the property of the attacking dog’s owner, such dog shall not be deemed dangerous.  The amendment eliminates an exemption to the dangerous dog classification which used to provide an exception for “other good cause as determined by the court.”  This eliminates some of the uncertainty of the definition, as well as placing the discretion for determination of danger in the hands of law enforcement and/or animal control.

The Code Section is further amended to note that a dog which has bitten, attacked or inflicted injury on a person is not a dangerous dog if a law enforcement officer or animal control officer finds the injury to be sufficiently minor.  Specifically, the dog is not a dangerous dog if the injury consists “solely of a single nip or bite resulting only in a scratch, abrasion, or other minor injury.”

The time period which the owner of a dog which has been deemed dangerous now has thirty (30) days to obtain a dangerous dog registration certificate and pay associated fees.  This time period was reduced from the previously allotted time period of forty-five (45) days.

Va. Code § 3.2-6540; HB 2381.

Disclosure of Insurance Policy Limits; Homeowners or Personal Liability Insurance; Personal Injury and Wrongful Death Actions:  Virginia Code § 8.01-417.01 was added to the Code of Virginia.  This Code Section extends the basic requirements of Virginia Code § 8.01-417, which applies to disclosure requirements for automobile liability insurance policies, to homeowner’s insurance.  An injured person, the representative of a decedent’s estate, or their attorney may request an insurer disclose the limits of the applicable liability policy prior to the filing of a civil action for personal injury or wrongful death.  The requesting party shall provide to the insurer (i) the date of injury; (ii) the address of the residence where the injury occurred; (iii) the name of the owner of such address; (iv) the claim number (if known); and (v) medical records and bills in the case of personal injury.  When a claim is for wrongful death, the requesting party must provide the certificate of death for the decedent; certification of the qualification of the decedent’s personal representative; names and relationship information of any statutory beneficiaries; any associated medical bills; and information relating to any claimed income loss.

In the case of a personal injury claim, if the supporting medical bills and records total more than $12,500, within thirty (30) days of receipt of the above-described written request, the insurer shall respond in writing, disclosing the applicable policy limits.  In the case of wrongful death claim, the insurer shall respond in writing within thirty (30) days of the receipt of the above-described written request.

Va. Code § 8.01-417.01; HB 1641.

DUI; Implied Consent; Refusal of Blood or Breath Tests: The laws surrounding the prohibition and penalty for driving under the influence, as well as refusing blood or breath tests are codified in Virginia Code §§ 18.2-266; 18.2-266.1; 18.2-268.3; 46.2-341.26:3.  The impact on civil liability is reflected in Virginia Code § 8.01-44.5 which outlines when punitive damages are available in a personal injury claim. As has always been the case, punitive damages are available when a plaintiff proves that a defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful and wanton as to show a conscious disregard for the rights of others.  A defendant’s conduct may be shown to have been sufficiently willful or wanton if: (i) when the incident occurred, the defendant had a blood alcohol level of 0.15 or more; (ii) at the time the defendant began drinking or while he or she was drinking, the defendant knew or should have known his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to the plaintiff.  For the purposes of proving the first element necessary for punitive damages, such proof may be in the form of approved forms of blood alcohol analysis, performed in accordance with the dictates of various Code Sections.  For the purposes, of proving the second element necessary for punitive damages, the amended Code Section provides that it shall be rebuttably presumed that a defendant who has consumed alcohol understood that such consumption would impair his ability to operate a motor vehicle.  This amendment serves to lessen the burden on plaintiffs to prove a defendant actually knew or should have known that his or her drinking would pose a risk to others.  The new language puts the onus on a defendant to show that he or she was not aware that his or her consumption of alcohol would impair his or her ability to operate a motor vehicle.

Civil punitive damages may be obtained by a plaintiff even when a defendant has “unreasonably” refused to submit to blood alcohol testing.  In such a case, a plaintiff may nevertheless prove that a defendant’s behavior warrants the imposition of punitive damages upon proof (i) that at the time of the injury, the defendant was intoxicated, which can be established through evidence of the defendant’s conduct or condition; (ii) at the time the defendant began drinking, during the time he or she was drinking, or while he or she was operating the motor vehicle, he or she knew or should have known that his or her ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was  a proximate cause of the injury.  Proof of an unreasonable refusal to submit to blood alcohol testing may be in the form of a certified copy of a court’s determination of unreasonable refusal pursuant to Virginia Code § 18.2-268.3.  This method of proof of conduct warranting the award of punitive damages is also amended to include a rebuttable presumption that a defendant who has consumed alcohol knew or should have known that his or her ability to operate a motor vehicle would be impaired.

While it is too soon to tell how courts and juries will respond to these amendments, it seems safe to assume that these amendments will lead more plaintiffs seeking and being awarded punitive damages in cases involving intoxicated defendants.  This should be taken into consideration in evaluating claims and setting reserves.

Va. Code § 8.01-44.5; HB 2327


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