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Welcome the Newest Members of Our Team!

Welcome the Newest Members of Our Team!

Pictured Above from left to right… Lee Appleton, Nick Marrone, Joe Smith and Andy Webb. KPM is thrilled to welcome four new attorneys who bring to KPM a wealth of energy and experience.  Joe Smith joins the Worker’s Compensation Practice Group in Richmond, while Nick Marrone joins the group in Fairfax serving both Virginia and Maryland.  Lee Appleton has joined our General Liability team, and Andy Webb has joined KPM’s Coverage & Fraud division.  Please join us in welcoming these great additions to the KPM family....
Super Lawyers Recognizes Four KPM Attorneys!

Super Lawyers Recognizes Four KPM Attorneys!

We are delighted to announce that Brian Cafritz, managing partner of KPM’s Retail & Restaurant Litigation Group and Claire Carr, managing partner of KPM’s Workers’ Compensation Practice Group have been selected to the 2017 Virginia Super Lawyers list. Additionally, Rachel Riordan, a partner with KPM, and Andrew Willis, an associate, have both been named to the 2017 list of Virginia Rising Stars!  Super Lawyers recognizes no more than five percent of attorneys in the state.  Please join us in congratulating our colleagues on this fine...

A Primer on Step Cases

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. One of the most common workers’ compensation fact patterns is an employee sustaining any injury in a stairwell or on steps.  A recent decision from the Full Commission acts as a primer on adjusting some of the most common step cases in Virginia.  The Deputy Commissioner and the Full Commission in Vickers v. E & M Management, LLC, JCN VA00001141682 (March 17, 2017) provide us with some useful practice pointers. In Vickers, the claimant worked as a maintenance supervisor for his employer, and while visiting an apartment complex to perform an inspection, fell as he was descending some stairs.  He described the stairway as having risers which were short and a tread which was narrow with a 1½ inch lip that “interfered with descending the steps.”  He claimed to have almost fallen down the steps on two previous occasions because they were so narrow.  The claimant testified that even with his heel backed all the way against the riser, his foot still hung over the step so that he had to turn his foot a little to the side in order to place his foot on the steps to descend them. On the day of the accident, the claimant had descended three steps when the heel of his right foot hit the front toe of his left foot, causing him to spin around and fall down the remaining twenty steps to the bottom.  He testified in his deposition that his left foot had been sticking out over the edge of the step because his feet were so long, but...

Out of the Fire and into the Frying Pan: ED VA Applies the Fireman’s Rule to Product Liability Claims

Author by Chris Bergin, Esq. Edited by Brian A. Cafritz, Esq. A common risk for retails is that one of its products is defective and causes an accident.  For example, if a consumer buys a product from a retailer and the product causes a fire, the retailer is sued for personal injuries or property damage due to the breach of the UCC Implied Warranties.   Taking this scenario one step further, could a firefighter or emergency responder who is injured by the fire or product recover against the retailer as well? Since at least 1968, the Commonwealth of Virginia has recognized and followed a common law doctrine called the “Fireman’s Rule.” The Fireman’s Rule holds that police officers, firefighters, and other public officials who are engaged in a high-risk activities as a result of their public duties, are not permitted to recover for a defendant’s simple negligence. Thus, for example, if a store or a restaurant negligently causes a fire on its property, it cannot be held civilly liable for any injury or death caused to firefighters who responded to the scene. At first blush, the Fireman’s Rule seems counterintuitive, or even cruel. However, it rests upon the sound legal doctrine of assumption of risk, which is strongly adhered to in Virginia. When a firefighter, for example, responds to an alarm, she is necessarily aware that a fire is in progress and that fire-related hazards are likely to exist. Yet her duty to respond to the fire still exists, in spite of this known danger.  The firefighter is duty-bound to respond to the emergency, regardless of whether the emergency was...

The Plaintiff Rear-Ended Me – How Can I Be At Fault?

Written by Sarah Kathryn Stahling, Esq. Edited by Bill Pfund, Esq.            Although plaintiff’s attorneys continue to grow ever more creative with their pleadings and allegations of negligence, it seems obvious that if Driver A rear ends Driver B, it’s not Driver B’s fault.  After all, he was the lead car.  How was he supposed to avoid an accident with a car behind him?  Couldn’t we go so far as to say, at the very least, Driver A was contributorily negligent per se and barred from recovery? Unfortunately, it’s never that simple.  This will almost always be a jury issue.  The Virginia Supreme Court recently addressed this issue in 2002 in Hot Shot Express v. Brooks, 264 Va. 126.  In this case, the driver of a tractor trailer was traveling from Pennsylvania to Virginia.  When he got to rural Virginia, he realized he had missed his delivery site and, in light of no shoulder to pull onto, stopped his vehicle in the middle of his travel lane and activated his hazard lights.  When he started to pull forward again, he felt an impact at the rear of his trailer – the Plaintiff had apparently wedged her vehicle under the rear of the trailer. At the conclusion of the Plaintiff’s personal injury case, Hot Shot Express moved to strike her evidence on the ground that the Plaintiff was contributorily negligent.  After all, she had plainly failed to keep a proper lookout and run into the back of a tractor trailer with flashing hazards.  The court denied the motion and explained that the issue of the Plaintiff’s negligence should be submitted...

Supreme Court of Virginia – Policy Language Trumps Indemnification Clause

Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. The issue of priority of coverage arises on a daily basis for attorneys and claims examiners alike in the world of insurance defense, and are often a source of headache and confusion. In the recent case of Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch., the Supreme Court of Virginia shed some light on how to properly determine the priority of applicable insurance coverage. 2017 Va. LEXIS 52 (Va. Apr. 13, 2017). In Nationwide, the Supreme Court determined the priority of applicable insurance policies involved in an underlying civil suit arising out of a fatal car accident. Two companies, East Coast and Rodriguez Construction, entered into a subcontract for construction services. East Coast loaned a work truck to Rodriguez under this contract. One of Rodriguez’s employees was operating that vehicle in the course of his employment when he struck another vehicle. The driver of the other vehicle died as a result of the accident and his Estate filed a wrongful death suit against the driver and East Coast. East Coast was eventually nonsuited from the matter, leaving only a potential judgment against Rodriguez’s employee. The issue before the Supreme Court was priority of coverage for the employee. At the time of the accident, East Coast was insured under two Erie policies – (1) Erie Auto Policy and (2) an Erie Umbrella Policy. Rodriguez, on the other hand, was insured by Nationwide and had the following policies – (1) Nationwide Auto Policy (2) Nationwide CGL Policy, and (3) Nationwide Umbrella Policy. The subcontract between East Coast and Rodriguez required...

No Last Call for the Last Clear Chance Doctrine

Written by Brian A. Cafritz, Esq. It’s not uncommon for a restaurant or retail customer to argue that, although his own actions contributed to his injuries, a particular employee of the defendant had been aware of the Plaintiff’s peril and took no steps to prevent an accident.  Of course, this argument concedes that a plaintiff’s own actions were negligent.  Nevertheless, for decades, Virginia plaintiffs have unsuccessfully tried to avoid the harsh consequences of contributory negligence by asking courts to invoke the “Last Clear Chance” doctrine.  This doctrine was designed to prevent a defendant from escaping liability when it was aware of the plaintiff’s predicament and could have prevented the accident but failed to do so.  The doctrine, however, has been more of a law school theory that was rumored and never seen, as the Virginia Supreme Court rarely, if ever, allowed it to apply in actual cases. That changed last month in the case of Estate of Coutlakis v. CSX Transportation, Va Sup. Ct. Record 60277, when the Virginia Supreme Court relied on the Last Clear Chance doctrine to overrule a trial court’s decision to dismiss Plaintiff’s Complaint on Demurrer.   In Coutlakis, the plaintiff was walking adjacent to railroad tracks while listening to music through his earphones.  Tragically, he was killed when he was struck from behind by an object sticking out of a train as it passed him along the tracks.    Although the decedent had no idea the train was approaching him from behind, it was clear that his choice to walk along those tracks was negligent.  The Plaintiff, however, argued that the train conductor had the last...

Standing to Sue After Filing a Chapter 7 Bankruptcy Petition

Written by Randall C. Lenhart, Esq. Edited by Janeen B. Koch, Esq. Whether or not a plaintiff filed a bankruptcy petition normally comes up in litigation cases in Virginia when the defense is trying to challenge a plaintiff’s medical bills.  This is so because some Virginia courts have determined that a plaintiff cannot recover for the amount of her medical bills that have been discharged in bankruptcy.  As a result, this bankruptcy issue functions as a limited exception to the collateral source rule. However, the Supreme Court of Virginia recently addressed another bankruptcy issue that should not be overlooked. In Ricketts v. Strange, et al., 796 S.E.2d 182, 2017 Va. LEXIS 5 (February 16, 2017), the plaintiff filed a personal injury lawsuit shortly before the two year statute of limitations expired on her claim against the defendant.  After the defendant learned that the plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Virginia, he filed a motion for summary judgment and argued that the plaintiff lacked standing to file her complaint.  The defendant asserted that the plaintiff’s personal injury claim should have been brought by the bankruptcy trustee because the personal injury claim had not been properly exempted from the bankruptcy estate. In granting the defendant’s motion for summary judgment, the circuit court determined that because the plaintiff “failed to disclose [her claim against the defendant] with the requisite reasonable particularity under the circumstances,” it “remained part of the . . . bankruptcy estate, [and was] assertable only by the trustee in bankruptcy.”  The real problem for the plaintiff...

Can You Ever Win by Losing a Workers’ Compensation Claim?

Written by Danielle Banducci, Esq. Edited by Rachel Riordan, Esq. Can you ever win by losing a workers’ compensation claim?  Certainly, we are all familiar with analyzing whether the time and expense of defending a particular claim or issue is worth the victory.  However, a less frequent question is whether accepting a workers’ compensation claim, even with its attendant medical and wage-loss exposure, is worth keeping the case out of the courtroom in a civil suit against the employer. Section 65.2-307 of the Virginia Workers’ Compensation Act provides for what is commonly known as the “Exclusivity Rule” – the proposition that if an injury comes under the purview of the Workers’ Compensation Act, the employee cannot sue the employer for that injury: “The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee…” This is consistent with the policy concerns underlying the Act: making it easier and faster for employees to receive compensation from their employers for medical expenses and lost wages, in exchange for limiting the type and amount of recovery available. In analyzing this rule, it is helpful to divide workers’ compensation claims into three categories.  At one extreme, there are injuries that are clearly compensable under the Act.  These cases easily trigger the Exclusivity Rule. At the other, there are injuries that clearly fall outside the Act’s scope (e.g., the injured worker is not an employee).  These cases are not barred by...

Am I Acting In Bad Faith?

Written by Brian Snyder, Esq. Edited by Bill Pfund, Esq. Virginia Federal Court Upholds Bad-Faith Claim Against 1st-Party Insurer             First-party bad faith claims arise when an insurer refuses to a pay a claim without a reasonable basis or even if the insurer has a reasonable basis for denial, failing to properly investigate the claim in a timely manner.  Va. Code § 38.2-209 allows insured to recover cost and reasonable attorney’s fees in declaratory action if trial court determines that insurer was not acting in good faith.  Under Va. Code § 8.01-66.1A, the insured’s evidentiary burden is preponderance of evidence standard.  An insurer which is found to have operated in bad faith could be liable for damages far in excess of the policy limits. Recently, in Great Am. Ins. Co. v. GRM Mgmt., LLC, the United States District Court for the Eastern District of Virginia, Richmond denied an insurer’s motion to dismiss a bad-faith claim arising out of the insurer’s denial of its insureds’ claim for property damage and loss of business income following the theft of rooftop air conditioning units from the insureds’ hotel.  The ruling is significant because it illustrates that Virginia law supports first-party bad faith claims against insurers. The case involved a business insurance policy issued by Great American Insurance Company (“GAIC”) to GRM Management, LLC, and SN Holdings (“Insureds”) covering the Richmond Magnuson Grand Hotel and Convention Center (“Hotel”).  The loss involved the theft of multiple HVAC units from the roof of the Hotel and resulting in further damage to the property and loss of business income.  GAIC investigated the loss and subsequently issued...