Our Latest

Bad Faith for a Bad Investigation

The US District Court in Alexandria recently found a carrier acted in bad faith in the case of South Boston Energy, LLC v. Hartford Steam Boiler Specialty Insurance. In this case, the insured, a power plant, suffered a loss to a large turbine. A piece of metal got inside the turbine and forced the insured to disassemble the turbine. The insured reported the loss to its insurer.

Assaulted Without a Motive

When an employee is assaulted at work, there are several factors to consider in assessing whether the assault “arises out of” the employment. Assault cases are tricky to defend due to the subjective nature of why a person is attacked. Further, the issue is compounded when the assailant is not available to testify regarding the motive. Recently, KPM’s own Bob McAdam successfully argued to the Full Commission that “why” an assailant attacks a claimant is the most important factor to consider regardless of whether motive is known.

DOL Adopts New Standard To Determine Compensable Time for Truck Drivers

On July 22, 2019, the Department of Labor (DOL) issued an opinion letter—FLSA2019-10—to address whether the time a truck driver spends in a sleeper berth is compensable under the Fair Labor Standards Act (FLSA).

This opinion letter withdraws the DOL’s previous opinion that employers could only exclude up to eight hours during a trip that was at least 24 hours long. The opinion letter also adopts an “on-duty” test as the most appropriate way to determine whether sleeper berth time is compensable.

UPDATE: Just When You Thought You Knew Everything About Pay and Quit Pursuant 38.2-2206 Here Comes the General Assembly Again!

In 2015, the Virginia General Assembly enacted significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impacted Virginia Code Section 38.2-2206 and added a new statute at 8.01-66.1:1. The stated purpose of these changes was to expedite uninsured and underinsured motorist payments.

Summary Judgment Is Becoming More Viable in Virginia

Written by Kate Adams, Esq. Edited by Bill Pfund, Esq.  Summary judgment in Virginia state courts, unfortunately, has been akin to finding a four leaf clover, we all know it exists but it is rarely ever granted. However, with the passage of Senate Bill 1486 and a recent decision from Judge David Bernhard of Fairfax Circuit Court, the constraints regarding the type of evidence a court may consider when hearing such motions  is expanding, making summary judgment more attainable. As reported in the KPM April 2019 Newsletter, Senate Bill 1486 has passed and went into effect on July 1, 2019 which expands the provisions of Virginia Code §8.01-420 and provides that “discovery depositions under Rule 4:5 and affidavits may be used in support of or opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” Although this change is narrowly tailored to business entities and cases where the amount at issue is over $50,000, this may pave the way for more opportunities to obtain summary judgment in Virginia. A May 24, 2019 ruling by Judge Bernhard addressed the type of evidence a court can consider when ruling on a motion for summary judgment. In HCP Properties-Fair Oaks of Fairfax VA LLC v. County of Fairfax, Judge Bernhard considered “whether a party can use a deposition of a Corporate Designee of an adverse party in support of its “Plea in Bar” seeking the dismissal of an action, in light of the stricture of Virginia Code §8.01-420 on the use of depositions...

Virginia’s Sovereign Immunity Doctrine, Emergency Vehicles, and Uninsured Motorist Coverage

Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. What is Sovereign Immunity? The doctrine of sovereign immunity is “a government’s immunity from being sued in its own courts without its consent.”  Black’s Law Dictionary, 4th Pocket Ed.: “Sovereign Immunity”.  The doctrine is as old as American law itself.  Like many of the initial common law doctrines in America’s jurisprudence, the doctrine of sovereign immunity grew out of British law.  The famous 18th century English legal scholar, William Blackstone, described the reasoning behind the doctrine when he said “the law also ascribes to the king in his political capacity, absolute perfection. . . The king can do no wrong . . . The king moreover, is not only incapable of doing wrong, but even of thinking wrong.”  1 William Blackstone, Commentaries on the Law of England 245 (1809) (emphasis in original). Over the generations, the absolute immunity ascribed to the king by Blackstone has slowly eroded.  For example, the Virginia General Assembly waived sovereign immunity in certain situations when it passed the Virginia Tort Claim Act—Va. Code Ann. §8.01-195.3—which allows citizens to directly sue the Commonwealth.  Despite the gradual erosion of the doctrine, “sovereign immunity is ‘alive and well’ in Virginia.”  Messina v. Burden, 228 Va. 301 (1984). Governmental Employees and Sovereign Immunity As noted by the Virginia Supreme Court, “The Commonwealth of Virginia functions only through its elected and appointed officials and its employees” and “[i]f because of the threat of litigation . . . they cannot act, or refuse to act, the state [itself] also ceases to act.”  James v. Jane, 221 Va. 43 (1980).  This...

Swimming Pool Liability Issues

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.