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Trouble is Always Just a Click Away

Written by Jessica Relyea Edited by Brian A. Cafritz Last year, the KPM LAW Newsletter addressed whether a restaurant or retail establishment could be held viciously liable for a defamation claim against an employee due to the employee’s social media post.   If the employee was acting within the scope of his or her employment at the time she made the post, the employer could be held liable.  Therefore, what should the employer know about the customer’s defamation claim? In Virginia, actions for defamation are akin to actions for slander or libel.  The first step in the analysis is for the trial judge will make a determination, as a matter of law, whether the “statement makes substantial danger to reputation apparent.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (Va. 1985).  If the answer is yes, the simple negligence standard applies.  If the answer is no, the tougher New York Time’s malice standard applies.  If the negligence standard applies, the plaintiff need only prove that (1) the statement was false, and (2) the defendant either knew it to be false, lacked reasonable grounds to believe it to be true, or acted negligently in failing to ascertain whether it was true or false. Id.   If the New York Time’s malice standard applies, the Plaintiff must prove either the statement was made with knowledge that it was false or that defendant acted with reckless disregard of whether it was false or not.  Id. citing New York Times Co. v. Sullivan, 376 U.S. 254, 268 (U.S. 1964).  If the New York Times standard applies, truth is affirmative defense, and the burden of proving...

Changes in Virginia Workers’ Compensation Law

Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. The General Assembly convened earlier this year and enacted a number of changes to Virginia’s workers’ compensation laws. However, a number of proposals that would have resulted in even bigger changes failed. Below is a summary of what did and did not become law in 2018: Legislation Passed by the General Assembly The Hon. Ferrell Newman, already a Workers’ Compensation Commissioner, was appointed Chairman of the Workers’ Compensation Commission effective July 1, 2018. He takes over as Chairman from Commissioner Wesley Marshall for a 3 year term. HB 82 held the tax rate paid by insurance carriers and self-insured employers to fund the Uninsured Employer’s Fund steady at .005 %. HB 558 added clarity to the term “medical community” for employers obligated to pay for out-of-state medical treatment. HB 117 provided that specially-appointed Deputy Commissioners or retired Commissioners can be counted in determining whether there is a quorum of the full Commission. Legislation Not Passed by the General Assembly HB 1543 would have expanded the time period for many claimants to file new claims for benefits. Specifically, the bill provided for the tolling of the two-year limitations period for filing a new claim during the time when the employer was paying either medical or wage loss benefits. This is not allowed under current law. HB 969 would have drastically reduced the ability of claimants to seek compensation from a “statutory employer” in cases where their own employers did not have workers’ compensation insurance. HB 460 would have made it easier for a claimant to bring a civil suit for...

Good News: No change to cap on punitive damages – Update on 3 Hot Legislative Bills

Written by Kate Adams, Esq. Edited by Bill Pfund, Esq. In the 2018 legislative session there were a number of important bills before the Senate and House of Representatives that could have had a substantial impact on the damages claims Plaintiffs are allowed to make and the amount of punitive damages plaintiffs can receive. Senate Bill 895 sought to increase the cap on punitive damages from $350,000 to $600,000. After the bill was initially proposed it was amended by the Senate, which reduced the sought after increase from $600,000 to $500,000. This version of the Bill passed the Senate but when sent to the House of Representatives for consideration, it failed to pass. A second attempt at increasing the amount of punitive damages recoverable by a plaintiff, House Bill 1305, was much broader and sought to eliminate the limitation on punitive damage awards all together.  This bill did not gain support in the House of Representatives and failed to make it out of subcommittee. Efforts to increase the cap on punitive damages have been before the House and Senate three times in the past four years.  In 2016 and 2015 there were similar bills to Senate Bill 895 that sought to increase the cap on punitive damages. Senate Bill 111 in 2016 sought to increase the punitive damage cap from $350,000 to $500,000. This bill, like the recent Senate Bill 895, passed the Senate but did not pass the House of Representatives. In 2015 House Bill 2360 sought to increase the punitive damage cap from $350,000 to $750,000. The Bill also failed to make it out of the House...

Virginia vs. West Virginia: Noteworthy Differences in Defending Claims

Written by Matthew Liller, Esq. Edited by Bill Pfund, Esq. Several attorneys at KPM LAW have dual licensure in Virginia and West Virginia. This article seeks to highlight some key differences between the two states which may play significant roles in defending claims across the borders. I. Statutes of Limitations Both states employ a two year limitations period for bodily injury. However, West Virginia’s property damage limitations period is also just two years, while Virginia’s is five years. W. Va. Code § 55-1-12(a); V. Code § 8.01-243(B). As to contracts, Virginia employs a three year limitations period for oral contracts and five year limitations period for written contracts. Va. Code § 8.01-246(2)-(3). West Virginia employs a ten year limitations period for contracts in writing signed by the party to be charged, and a five year limitations period for any other contract (including oral), express or implied. W. Va. Code § 55-2-6. II. Comparative or Contributory Negligence Virginia is a pure contributory negligence state, meaning if the plaintiff’s own negligence contributed to his accident he may not recover. See generally, Estate of Moses v. Southwestern Va. Transit Mgmt. Co., 273 Va. 622, 643 S.E.2d 156 (2007). West Virginia recognizes modified comparative negligence, allowing a plaintiff to recover damages in proportion to the amount of fault they hold, so long as they are less than 50% at fault for the accident. Tug valley Parm. v. All Plaintiffs Below in Mingo Cnty., 235 W. Va. 283, 773 S.E.2d 627 (2015). III. Joint and Several Liability / Right of Contribution Virginia is a joint and several liability state, meaning each tortfeasor is responsible...

The Expansive Auto Exclusion

Written by Gary Reinhardt, Esq. In a case decided on June 21, 2018, the Western District of Virginia, by the Honorable Norman K. Moon, affirmed the broad scope of the auto exclusion.  In Admiral Ins. Co. v. W.W. Associates, Inc., et al., (Case No. 3:17-cv-00027), the Court applied the auto exclusion to a professional services policy issued to an engineering firm. In W.W., plaintiffs in an underlying suit alleged that they suffered injuries, and even a death, following an automobile accident.  Part of the allegations included that the road where the accident happened was negligently designed. W.W., the engineers, gave notice of the suit to Admiral.  Admiral asserted the automobile exclusion while defending under a reservation of rights.  The policy exclusion barred coverage for “any claim which arises from, or is related to, any collision or accident involving an automobile.”  Admiral then filed a Declaratory Judgment Action moving the Court to find the auto exclusion applicable and holding that Admiral did not owe W.W. a defense nor indemnity. W.W. responded by claiming that the policy exclusion was ambiguous.  First, W.W. challenged the use of the word “claim.”  The policy defined “claim” and W.W. asserted that substituting the policy definition for the word “claim” in the exclusion rendered the auto exclusion “‘unintelligible.’”  (Page 5 of the Opinion).  The Court was not convinced, writing that W.W. was “straining” to find an ambiguity.  “Even if ‘claim’ was not defined in the Policy, the Fourth Circuit has had little trouble defining the word when unaccompanied by a definition.”  (Id., citing Ball v. NCRIC, Inc., 40 App’x 760,764 (4th Cir.  2002) (“The most common...

July 2018 – Legislative Update

Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. The Virginia General Assembly has completed its 2018 legislative session and has enacted several new statutes impacting the insurance defense industry and legal practice.  Perhaps the most significant developments from the last session were several bills advanced by the plaintiff’s bar which failed to pass, resulting in the preservation of important Virginia Supreme Court decisions that will continue to shape case evaluation and strategy moving forward.  New laws going into effect on July 1, 2018, with special import to our readers are highlighted below, as well as a few noteworthy failed bills. Required policy limits disclosure for insureds convicted of Driving Under the Influence.  Senate Bill 535.  Pursuant to the existing language of Va. Code § 8.01-417.01, if a plaintiff is able to produce a total of $12,500 in medical bills and/or lost wages attributable to an accident, the plaintiff’s attorney may submit a request to the alleged tortfeasor’s insurer with a request to disclose the applicable policy limits.  Under those circumstances, the insurer is required to respond within 30 days to confirm the amount of the policy limits which may potentially apply to the claim.  As of July 1, 2018, the circumstances surrounding required disclosure have been expanded.  Under the expanded provision, if an alleged tortfeasor has been convicted of driving under the influence, the plaintiff or his attorney may request disclosure of the policy limits regardless of the amount of any medical bills or lost wages claimed by the plaintiff.  Consistent with the prior statute, the insurer must respond within 30 days to confirm the amount of...

So a Party Lied During Discovery… What Now?

Written by Megan E. Cook, Esq. Edited by Bill Pfund, Esq. Whether viewed from a defense or plaintiff standpoint, after a party has provided false discovery information, the opposing party’s response should be to file a Motion for Sanctions against the party who provided the false information.  Virginia Courts have awarded sanctions against the violating party for false interrogatory answers and false deposition testimony numerous times. The case of Doe v. Va. Wesleyan College provides a succinct analysis of how to properly discuss one’s arguments supporting a Motion for Sanctions.  93 Va. Cir. 215 (2016).  The core arguments begin with an analysis of Virginia Code § 8.01-271.1 and Virginia Supreme Court Rule 4:12. The pertinent part of Section 8.01-271.1 of the Code of Virginia states: “Every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.  The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper [and] (ii) to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact…” The court in Doe interprets this as saying that sanctions under this statute are only available against the attorney.  93 Va. Cir. at 226.  Otherwise, as the statute discusses, sanctions can be assessed against a pro se litigant...

Off the Clock, but not Off the Hook: Employer liability for injuries suffered off the job site

Written by Christopher R. Wilson, Esq. Edited by Rachel A. Riordan, Esq. May an employer be held responsible for injuries an employee suffers even when he or she is “off the clock” or has left or not yet arrived at the job site? In Virginia, the answer is generally no, but there are exceptions to the general rule of which every employer should be aware. Under most circumstances, injuries suffered while an employee is going to or coming from work are not considered to have occurred “in the course of” the employment, and therefore are not compensable under the Virginia Workers’ Compensation Act. There are, however, three exceptions to this so-called “coming and going” rule that can make an injury compensable: (1) where the employee’s means of transportation is provided by the employer or travel time is paid for or included in the employee’s wages; (2) where the accident occurs in a location that is the only means by which all employees enter and exit the employer’s premises, and (3) when the employer requires the employee to undertake a “special errand”  away from the employer’s place of employment. Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 190, 355 S.E.2d 347, 347 (1987). Lastly, if the accident occurs in a parking lot or walkway that is found to be an “extension of the employer’s premises,” the going and coming rule will not bar the claim. Barnes v. Stokes, 233 Va. 249, 355 S.E.2d 330 (1987). The fact that an accident occurs in a parking lot or walkway used by employees is not sufficient by itself to make the accident...

Predicting Sanctions for an Unprepared Corporate Designee

Written by Brian A. Cafritz, Esq. Whenever a corporation is a party to litigation, the 30(b)(6) Deposition is one of the major events during discovery. Rule 30(b)(6) is the Federal Rule that establishes the means by which one party can take the binding deposition of a corporation. The basic framework is that the party seeking the deposition provides a list of Matters of Inquiry, notifying the organization as to what subject matters the inquiry will be focused. The corporation, then, decides the representative(s) it wants to answer the specific matters of inquiry. It is incumbent upon the corporation to make sure that the representative testifies, not based on his own knowledge, but based on the knowledge of the entire company. This, by necessity, requires preparation, focus, and dedication. So what happens when adequate preparation does not occur? Recently, the Western District of Virginia sanctioned a corporate defendant for acting in bad faith for not properly preparing its corporate representatives. In Latson v. Clarke, WDVA (Abingdon Division) Case 1:16cv39 (May 14, 2018), an autistic man sued the Virginia Department of Corrections (“DOC”) over improper treatment at a state prison. A Notice of Deposition was served on the DOC containing eighteen Matters of Inquiry. The DOC produced six corporate designees to answer the matters of inquiry. After the depositions were completed, the Plaintiff believed that the designees did not sufficiently prepare for their testimony and had insufficient information to answer the various matters of inquiry on which each was designated. As a result, Plaintiff moved for sanctions. It is worth noting that the matters of inquiry were agreed upon in advance, and the counsel conducted several meet and confer negotiations...

Keeping the Peace

Written by Rachel Stewart, Esq. Edited by Brian Cafritz, Esq. While restaurants and retailers want customers to patronize their stores, unfortunately, there are times when a particular customer threatens an employee or causes concern for the potential of harm to an employee or other customers.  With so much information on social media and in the news regarding videos of employee-customer interactions in restaurants and retail stores, what can or should an employee of a restaurant or retail store do when confronted with a dangerous or potentially dangerous customer? First and foremost, depending on the circumstances, the customer should be asked to leave the store immediately.  Once the customer is invited to leave and given a reasonable amount of time to comply, his failure to do so will change his status from invitee to trespasser.  As a trespasser, the duties owed to him under the law change.  Under Maryland law, a property owner is only required to refrain from willful or wanton conduct that may injure the trespasser. If a customer is brandishing a weapon of any sort or a fear of imminent or serious injury exists as a result of the customer’s actions, in order to protect your employees and customers, the police should be contacted immediately.  As we’ve discussed in a prior article, if the customer were to use the weapon and injure or kill a customer, the court may consider the timing of an employee’s actions on the risk of harm in determining liability once aware of the possibility of imminent danger. Employees should not be afraid to contact the police if a customer refuses to comply...