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Ripped in Roanoke

Have you ever noticed that successful people are seldom successful at only one thing? Successful people tend to have character attributes that translate across disciplines to allow for success in multiple arenas.  When considering attorneys to join the KPM team, activities outside the law are just as important as those credentials evident in a legal career resume.  KPM is proud of the team members who are marathon runners, celebrated opera singers, competitive cyclists, and globally-ranked Ironmen. The tenacity these individuals show in these personal pursuits tends to be every bit as evident in their legal practice.  Consider KPM’s Southwest Virginia office’s Matt Liller.  Matt is a successful attorney respected by peers, clients, and opposing counsel, working hard to build his practice in Virginia and West Virginia.  But Matt works equally hard at his bodybuilding practice – and the practice of the law and bodybuilding indeed have a lot in common. Matt begins most weekdays by 4:00 AM to get in a workout and two meals before getting to the office.  Alongside the legal pads and pens, you’ll always find a protein bar in his briefcase at any deposition to squeeze in a meal if necessary.  He has taken note that in both bodybuilding and legal practice the biggest differences are usually made when nobody is watching. Matt says, “The hard work behind the scenes allows you to shine when the lights are on.” Matt prides himself in being cordial and professional, but when the inevitable times come to be stern or take a hard stand for a client, he’s found that his muscular stature can help get his point...

Federal Court in a Snap: “Snap” Removal May Assist in Avoiding the Home State Defendant Rule

Written by Lee Hoyle, Esq. Edited by Brian Cafritz, Esq. The first and often most important fight in most civil cases is where the case will be litigated. Plaintiffs generally prefer state court, while defendants often prefer federal court. A defendant’s ability to remove a state court action to federal court can greatly impact the litigation as a whole. For most cases involving retailers and restaurants, the most common way for a defendant to assert federal jurisdiction is Diversity of Citizenship. If the plaintiff and defendant are citizens of different states (and the claim is over $75,000), the defendant can remove a case filed in state court to federal court. However, when plaintiffs seek to prevent their case from being removed to Federal Court, they will often name an employee who is a citizen of the forum state as a second defendant. This is known as the forum defendant rule. 28 USC 1441(b)(2) provides that, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 1332(a) includes diversity jurisdiction based on citizenship of different states and citizenship of foreign states. Under this rule, a Maryland Plaintiff may sue a Georgia company and a Virginia employee in a Virginia Court. In this instance, even though the plaintiff and both defendants are all from different states, the case is not removable to federal court because the individual employee is a citizen of the state...

Another Victory for the Defense in a Recent Product Liability Action

Written by Stephanie G. Cook, Esq. Edited by Willian J. Pfund, Esq. In a product liability case tried this year in Roanoke City Circuit Court, the trial judge dismissed a 4.2 million verdict for a plaintiff upon post-trial motions, finding that the evidence established contributory negligence as a matter of law. On appeal, the Supreme Court of Virginia affirmed the dismissal, but it found in favor of the defendant on the alternative basis that the Estate failed to establish negligent design as a matter of law. In Evans v. NACCO Materials Handling Group, Inc., 295 Va. 235 (2018), the Estate of a paper plant worker filed suit against the manufacturer of a lift truck after the worker was crushed and killed by the lift truck he had been operating. The deceased worker’s lift truck got stuck between a dock plate and the edge of a trailer he had been loading. He and a co-worker attached a chain to his truck so it could be pulled out by the other lift truck. He applied the parking brake and turned the engine off, but apparently other workers had loosened the brake. The truck was on an incline, and the noise in the plant prevented him from hearing warnings that the truck was rolling towards him. The alarm on the truck did not sound, and chocks were not placed under the wheels. While the deceased worker had received some training on how to operate the truck, he was never certified; and federal law required such certification. The Estate claimed that the parking brake on the lift truck was negligently designed. It also...

How to Recognize and Respond to Balance Billing

Written by Nick Marrone, Esq. Edited by Rachel Riordan, Esq. Probably every adjuster has come across a provider application filed by the medical provider of a claimant. Under the Virginia Workers’ Compensation Act (“the Act”), if a provider disputes the amount an insurer has paid for a medical bill or claims the insurer has not paid anything towards the bill, the provider can independently file a claim with the Commission seeking payment from the insurer. The provider’s claim (e.g., the provider application) is filed under the claimant’s Jurisdiction Claim Number. When the application refers to treatment that has occurred from July 1, 2014 or later it must be filed within one year of the date the provider last received payment or within one year of the date the medical award covering the date of service of a contested billing becomes final. See Virginia Code § 65.2-605.1(F). But what happens when a claimant files a claim for benefits seeking payment of unpaid medical bills from a provider? I am not talking about a claim for out-of-pocket expenses, but a claim filed that seeks the balance due to a medical provider which the insurer disputes. If such a claim is filed should the adjuster pay the claimant the balance due to the provider? Should the adjuster pay the balance to the provider directly? The adjuster should do neither. The provider that seeks the balance of a bill from a claimant is acting in violation of the Act; they are committing what is called “balance billing”. Under § 65.2-714(D) of the Act a medical provider may not bill a claimant for the...

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 vicariously 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...