Our Latest

INJURY BY ACCIDENT: A SHIFT AWAY FROM “SNAP, CRACKLE, POP?”

Written by Claire C. Carr, Esq. Edited by Rachel A. Riordan, Esq. It has been long held in Virginia that to prove an “injury by accident,” a claimant must prove: (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.  Additionally, it has long been held that injuries resulting from repetitive trauma or cumulative events and injuries sustained at an unknown time are not considered “injuries by accident.” Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989).   In the industry, it’s been referred to as a requirement that a claimant show a “snap, crackle, pop,” or a specific moment of injury at a specific moment in time. And then came Van Buren.   Several months ago we reported on the case of Van Buren v. August County, Court of Appeals, Record No. 1975-15-3 (July 19, 2016) which addressed what constitutes an “identifiable incident” at a “reasonably definite” point in time.   Van Buren was a firefighter injured during a 45 minute rescue operation which involved many different physical tasks.  Even though he could not identify a specific moment when his injury occurred, the Court of Appeals held the 45 minute rescue operation was sudden and specific enough to constitute an “identifiable incident occurring at a reasonably definite time.”  The Court referenced the adrenaline rush during the rescue which may have masked the exact moment of injury, and held that public policy favored treating the entire 45 minute rescue as “one piece of work.”...

Can You Exclude Plaintiff’s Medical Bills at Trial if They Have Been Discharged in Bankruptcy?

Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. The question of what amount of a plaintiff’s medical bills is recoverable is an issue that comes up with regularity in all personal injury cases.  Defendants need to know how they can reduce the amount of damages a plaintiff can blackboard at trial.  In Virginia, the collateral source rule prohibits a defendant from reducing or limiting the amount of medical damages being claimed because the bills were paid in whole or in part by an insurance company, other benefit, or otherwise written off by the provider.  Acuar v. Letourneau, 260 Va. 180, 189-193 (Va. June 9, 2000).  In other words, Plaintiff can present to a jury the full retail amount of billed medical specials that he is claiming were incurred as a result of the incident.  The principle behind the collateral source rule is that a plaintiff is entitled to compensation sufficient to make him whole, but without creating a windfall.  Id. In scenarios where the balance is difficult to strike, the courts have held its better to fall on the side of allowing a Plaintiff to receive double recovery than to allow a defendant to escape liability for his wrongs.  Id. However, what happens if Plaintiff has filed bankruptcy and the medical bills that were incurred as a result of an accident were discharged?  In that scenario, Plaintiff is absolved of paying any amount on the medical specials.  Does Virginia allow a Plaintiff to still recover for those damages in a personal injury lawsuit? The answer depends on whether you are in federal or state court.  The...

Defending Cases in a Social Media World

Written by Erin Slusser, Esq. Edited by Bill Pfund, Esq. Litigating cases in 2017 is ever changing given the growth of technology and its evolving use in people’s daily lives.  This is nowhere more apparent than in the use of social media.  According to the Pew Research Center, as of November 2016, 69 % of the American public uses social networking sites.  (Pew Social Media Update 2016).[1]  While new platforms seem to pop up on an almost hourly basis, Facebook remains the predominant favorite with approximately 79% of online Americans using this site, followed by Instagram, Twitter, LinkedIn and Pinterest. Id. This prevalent use of social media presents both great opportunities and risks in civil litigation.  Individuals often provide extensive personal information about themselves and their activities on these social media platforms.  This provides unrivaled access to background information, pictures, comments, wall posts and messages that previously was unavailable to litigants. Social media appears to be fair game in the discovery process under both the Rules of the Supreme Court of Virginia and the Federal Rules of Evidence.  While there are no rules specifically addressing social media, the rules governing e-discovery provide a good framework for litigants attempting to discover information from social media platforms.  Federal Rule of Evidence 34 and Rule 4:9 of the Supreme Court of Virginia both permit discovery of electronically stored information which encompasses social media information.[2] While social media is most likely discoverable under the state and federal discovery rules, the next step is getting the useful information you obtained admitted into evidence.  Again, there is no Virginia or local federal court case specifically...

Virginia Supreme Court Announces Important New Rule Regarding Statute of Limitations for Malpractice Claims Against Attorneys

Written by W. Barry Montgomery, Esq. Edited by William J. Pfund, Esq.           The Virginia Supreme Court recently issued an opinion favorable to all persons insuring and defending attorney malpractice claims in Virginia.  In the case of Moonlight Enters., LLC v. Mroz, 293 Va. 224, 797 S.E.2d 536 (March 30, 2017), plaintiff Moonlight Enterprise, LLC (“Moonlight”) sued two attorneys, including defendant Mroz, for legal malpractice arising out of a condominium purchase transaction.  Mroz represented Moonlight in the condo purchase transaction. Two years after Moonlight bought the condo units, attorney Mroz filed a lawsuit on Moonlight’s behalf against the condo association wherein Moonlight disputed certain condo association fees.  The condo association filed a counter-claim against Moonlight. One of Mroz’ s partners, Zachary, filed a response to the counterclaim.  Soon thereafter, Zachary took over handling the litigation from Mroz but Mroz was still noted as a counsel of record in the lawsuit. The condo association prevailed on all issues in the lawsuit in January 2012 and won an award of $59,000.00 in attorney’s fees and costs. Moonlight hired new counsel to handle the appeal of the adverse judgment. In 2013, Moonlight filed a legal malpractice lawsuit against Mroz and Zachary charging Mroz with malpractice in his handling of the 2008 condo purchase transaction and charging Zachary with malpractice in his handling of the 2010 litigation against the condo association.  The trial court dismissed the 2013 lawsuit based on a statute of limitations defense. Moonlight  filed a second legal malpractice lawsuit against Mroz and Zachary on February 20, 2015, exactly three years after the entry of the final order in the unsuccessful...

Supreme Court of Virginia Re-Visits Last Clear Chance Doctrine

Written by Danny Royce, Esq. Edited by Bill Pfund, Esq. Contributory negligence is a powerful affirmative defense in the Commonwealth of Virginia.  However, there is an exception to contributory negligence embodied in the Last Clear Chance doctrine.  There are two versions of the doctrine.  The Court has recognized two types of plaintiffs eligible for the doctrine: the helpless plaintiff and the inattentive plaintiff.  The helpless plaintiff is embodied in the Model Jury Instruction as follows: “Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that: (1)          the plaintiff negligently placed himself in a situation of peril from which he was physically unable to remove himself; and (2)          the defendant saw, or should have seen the plaintiff and realized, or should have realized, his peril; and (3)          thereafter, the defendant could have avoided the accident by using ordinary care.” The second version of the doctrine applies when the plaintiff has placed him/herself in peril and is unware of his/her peril (the inattentive plaintiff).  This is embodied in the alternate Model Jury Instruction as follows (see Id. at 238-39, 89 S.E.2d at 53): “Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that: (1)          the plaintiff negligently placed himself in a situation of peril; and (2)          he was physically able to remove himself from the situation but was unaware of his peril; and (3)          the defendant actually saw the plaintiff and realized, or should have realized, his peril; and (4)          thereafter, the defendant could have avoided...

Generic v. Brand-name Medications Under the Virginia Workers’ Compensation Act

Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. Under the Virginia Workers’ Compensation Act, § 65.2-603, an Employer is required to provide all necessary medical attention to an injured worker as a result of a compensable accident.  But to what extent is the Employer responsible for payment of costly prescription medications when an injured worker demands brand name medications over a generic medication and what can we do to limit the costs of those medications? The purpose of the Workers’ Compensation Act is to provide an injured worker with free treatment and to restore the injured worker’s good health so that the injured worker can return to gainful employment as soon as possible.  Richmond Memorial Hospital v. Allen, 3 Va. App. 314, 349 S.E.2d 419 (1986).  As a part of an injured workers’ treatment, most often prescription medications are prescribed for pain control or other symptoms of their injury. § 65.2-603.1(B) provides that a pharmacist shall dispense a prescription using the generic version of the medication where available unless: unless (1) a generically equivalent drug does not exist or the usual and customary retail price for it is higher than that of the prescribed name-brand drug; or (2) the prescriber specifies on the prescription “brand medically necessary” based upon a medical reason why the injured worker should not have the generic equivalent.  A physician may provide verbal instructions to a pharmacy requiring that a medication is brand specific – it does not need to be in writing. So what does this mean for your claim?  Rather than waiting to try to minimize the cost of medications and...

Is there any way to stop these frivolous lawsuits?

When asked by a client whether or not there is any way to stop a plaintiff filing frivolous suits, experienced defense counsel can usually only offer a few wholly unsatisfying responses.  The short answer of “no” is usually the correct one, though in some circumstances counsel might advise the client that sanctions could be available if it is proven that plaintiff filed suit without any factual or legal basis.  Of course litigating and proving the grounds for a sanctions award can be as costly as defending a frivolous suit on the merits, without any guarantee of success.  In short, the available options for responding to frivolous suits are often expensive and frustrating for the client. Recently, though, the Virginia Supreme Court itself felt the burden of frivolous filings and told a habitual plaintiff enough is enough.  In the case of Adkins v. CP/IPERS Arlington Hotel LLC, 2017 Va. Unpub. LEXIS 15 (June 8, 2017), the Virginia Supreme Court considered imposing a pre-filing injunction against a plaintiff who, over the course of a decade, filed numerous lawsuits which were dismissed at the trial court level and then appealed to the Virginia Supreme Court.  The Court never granted any of plaintiff’s appeals, all of which were found to be meritless.  Looking at the Court’s docket since 2009, plaintiff had filed 27 appeals, which “unduly burdened opposing litigants and interfered with the administration of justice.”  Id. at 9.  According to the Court, plaintiff “subjected dozens of innocent individuals and entities to the cost of defending meritless claims both in the trial courts and on appeal.”  Id. at 10. Plaintiff’s Prior Suits Plaintiff’s...

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...

Independent Medical Exam or Peer Review? An Analysis

Written by JH Revere, Esq. Edited by Bill Pfund, Esq. If you have worked in bodily injury claims for any period of time, you are no doubt aware there are two primary means by which the defense attempts to rebut a plaintiff’s medical claims prior to or at trial. They are, of course, the Independent Medical Examination (IME) and the Peer Review. Let’s start by looking at the framework for expert testimony in Virginia. Virginia Code § 8.01-401.1 addresses expert testimony at trial. It states in part: In any civil action, any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence. The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. The statute clearly applies to both the peer review and the independent medical exam. The independent medical exam is further subject to additional criteria.  Rule 4:10 of the Rules of the Supreme Court of Virginia states in part: (a) Order for Examination. –When the mental or physical...

No UM Bad Faith in Virginia

Written by Gary Reinhardt, Esq. Edited by Bill Pfund, Esq. The Uninsured/Underinsured Motorist statute, Va. Code Ann. § 38.2-2206, strictly controls how a carrier provides coverage to its insured.  The statute limits what may be required of an insured by an insurer in order to obtain UM/UIM coverage.  For instance, “No endorsement or provisions providing the coverage required by subsection A of this section shall require arbitration of any claim arising under the endorsement or provisions, nor may anything be required of the insured except the establishment of legal liability . . .”  Va. Code Ann. § 38.2-2206(H).   The Virginia Supreme Court interpreted this language from the Virginia UM/UIM statute to mean that “Under the statute, the obligation of the uninsured motorist insurer arises only if it is determined that the insured is ‘legally entitled to recover’ damages from the owner or operator of an uninsured motor vehicle… . Judgment is the event which determines legal entitlement to recovery.”  Midwest Mut. Ins. Co. v. Aetna Casualty & Surety Co., 216 Va. 926, 929, 223 S.E.2d 901, 904 (1976). Based on this, some insurers did not participate in settlement negotiations with their insureds asserting UM claims.  Plaintiffs, in turn, claimed bad faith based on the statutory language of Va. Code Ann. § 8.01-66 (D) (1): Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance...