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What is an injury by accident post Dugger ?

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. The Virginia Workers’ Compensation Act and the cases interpreting the Act were turned upside down by the Court of Appeals in Riverside Regional Jail Authority v. Dugger, 68 Va. App. 323 (2017). In Dugger, the Court of Appeals held that the claimant, a corrections officer,  sustained an injury by accident when she participated in simulated fights for four hours.  During that training session she was tossed around and taken down.  As she was walking away from the training, she immediately noticed pain in her knee. In finding that the claimant suffered a compensable injury by accident, the Court  found that the claimant was not engaged in repetitive movements during this training. Instead, the Court found that the claimant’s injury occurred during the four hour defensive training class, which was sufficiently bounded by rigid temporal precision to be considered an injury by accident. This opinion, of course, appeared to eviscerate the requirement that the claimant prove an injury by accident, that is, “an identifiable incident or sudden precipitating event.” However, in one of the first post Dugger opinions the Full Commission, in a 2-1 decision, reversed the deputy commissioner and appeared to reign in the effects of Dugger in Daggett v. Old Dominion University, JCN va00001318459 (March 8, 2018). In Daggett, the claimant, a technical support provider, testified that he suffered bilateral shoulder injuries when he was moving fourteen separate  4 foot by 8 foot smart boards to collect information from them.  The boards weighed between 28-48 lbs. He had to rotate the boards.  In the process, his arms and...

Property Damage Claim: To Be Arbitrated or Not?

Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. Property damage claims can be made by filing a separate Warrant in Debt or by including the claim in the same action for personal injury. There is also a VA Code Section that states that “insurers shall arbitrate and settle all disputed claims made for automobile physical damage between them in accordance with the terms of the Nationwide Intercompany Arbitration Agreement.” (See Va. Code §38.2-2231(A)). This Code Section, however, has been deemed unconstitutional by a number of Circuit court decisions in Virginia. In 1999, the Circuit Court of Danville, Virginia first ruled on this issue. In Bass v. Young, the Court noted that it had “serious concerns about the constitutionality of Va. Code §38.2-2231” as it did away with the right to a jury trial and provided no appeal or judicial review of an arbitrator’s decision. (See Bass v. Young, 49 Va. Cir. 525 (1996)). The Circuit Court in Rockbridge County also agreed that this Code Section is unconstitutional. (See Virginia Mut. Ins. Co. v. Dean, 49 Va. Cir. 132 (1999)). In Virginia Mutual Insurance Company v. Dean, the Plaintiff insurance carrier, acting as subrogee of the insured, filed a property damage claim against the operator of another insured automobile. The Defendant filed a plea in bar, asserting that pursuant to §38.2-2231, arbitration was the exclusive remedy. The Court denied the Defendant’s plea in bar and set the matter for trial, finding that the remedy provided by the Legislature was to be “in addition to and not in lieu of the ancient common law right of trial by jury.”...

Don’t Give Short Shrift to Written Agreements at the Close of Mediation

Written by Danny Royce, Esq. A critical tool in our case resolution arsenal is mediation.  Many carriers and claimants turn toward mediation to resolve contentious litigation.  As we all know, mediation sessions can be slow and arduous often taking the better part of a day (and sometimes longer).  More often than not, mediation sessions accelerate toward compromise toward the end of a long session.  Such compromise frequently coincides with the highest points of stress and fatigue among litigants and lawyers.  One potential consequence of this confluence of factors is a hastily written or incomplete settlement agreement.  This presents a pitfall easily avoided by the savvy and conscientious lawyer.  The Supreme Court of Virginia recently ruled on this very issue in the case of LongView Int’l Technology Solutions Inc. v. Lin (2017 Va. Unpub. LEXIS 9 *, VLW 017-6-030(UP)).  Longview presents as a cautionary tale for litigants and lawyers trying to finalize mediated settlement agreements. In LongView, the parties participated in a 12 hour mediation session with an experienced mediator.   Upon reaching an agreement, the lawyers drafted a six-paragraph “Term Sheet” which stated the defendant tech company would pay the plaintiff investor (and former officer) $3 million over a four-year period, and another $12 million when the company was sold.  The Term Sheet included language at the top of the document that the parties were “intending to be fully bound by its terms.”  The parties signed the Term Sheet and sought to remove the trial from the docket.  The judge managing the docket heard a request for a continuance of the case and pressed the parties on whether they had...

Occupational Disease Claims: “Employment” Means More than an Employer-Employee Relationship

  Written By Joseph Smith, Esq. Edited by Rachel Riordan, Esq. Most workers’ compensation claims are claims that involve bodily injury. However, certain diseases can also be covered under workers’ compensation. These “occupational disease” claims are defined in Va. Code § 65.2-400 and require that a claimant prove the disease arose out of the employment based upon several factors that establish the employment caused the claimant to contract the disease, rather than an exposure where the general public was equally at risk. Occupational disease claims must be proven by a preponderance of the evidence. Additionally, certain “ordinary disease of life” claims, which includes exposure to diseases to which the public is exposed outside of the employment, can also be compensable occupational diseases pursuant to Va. Code § 65.2-401. However, ordinary disease of life claims have to be proven by clear and convincing evidence, which is a higher burden than the preponderance of the evidence required for occupational disease claims. Claims for post-traumatic stress disorder (PTSD) have become commonplace and are difficult to defend, as the symptoms can be quite subjective in nature. PTSD can be covered as either an occupational disease or an ordinary disease of life and the Commission must determine whether the PTSD was caused by the employment or an outside exposure. In the context of occupational disease claims, the Commission has traditionally defined “the employment” not as an employer-employee relationship but instead as “work or process which the employee has been engaged.” Pocahontas Fuel Co. v. Godbey, 192 VA. 845, 852, 66 S.E.2d 859, 864 (1951). The Court of Appeals recently addressed this issue in City...

When Bankruptcy Attacks

Written by Lee Hoyle, Esq. Bankruptcy law and civil litigation rarely mix.  When bankruptcy issues arise in civil lawsuits, it generally means that something has gone terribly wrong for one side or the other.  If the defendant is invoking the automatic stay, pausing the civil litigation while a bankruptcy case is administered, the civil defendant probably has bigger problems than the lawsuit.  Along the same lines, if a civil plaintiff’s bankruptcy pops up as an issue in the civil case, the civil case may be in jeopardy of dismissal. The reason why having bankruptcy enter a civil claim at all is so dangerous for the plaintiff is that it probably means that the plaintiff messed something up.  When a person (or company for that matter) declares bankruptcy, all of their assets become part of the bankruptcy estate.  If the debtor wants to remove an asset from the bankruptcy estate, they need to disclose the item and have it exempted or otherwise taken out of the estate.  In Virginia, civil lawsuits are exempt from creditors in the bankruptcy process.  As long as the debtor discloses the claim as an asset, the bankruptcy court should enter an order exempting the claim from the estate. The Virginia Supreme Court has twice affirmed dismissals of civil claims asserted by debtors in bankruptcy.  In Kocher v. Campbell, 282 Va. 113, 712 S.E.2d 477 (2011), the civil plaintiff filed for bankruptcy and received a discharge after the accident happened but before he filed his lawsuit.  He did not disclose the existence of the potential civil claim to the bankruptcy court until after he filed suit. ...

What is a Nonsuit and Why Should it Matter?

Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. Almost every state has certain rules or procedures that are unique to that jurisdiction.  In Virginia, one of our legal oddities is the existence and breadth of the voluntary nonsuit.  A voluntary nonsuit in state court is a procedural right to voluntarily dismiss the case, but it is created by statute.  Va. Code Ann. § 8.01-380.  Although it is a voluntary dismissal, a nonsuit does not operate the same way as a voluntary dismissal in federal court.   It allows the Plaintiff to correct a flaw in her case and reset the matter to the start in a future filing, with no real penalty or hardship.  The Supreme Court of Virginia has described a voluntary nonsuit as a “powerful tactical weapon in the hands of Plaintiff.”  Trout v. Commonwealth Transp. Comm’r of Va., 241 VA 69, 73 (1991). Given this tool at plaintiff’s disposal, it is important for all defendants to understand what a voluntary nonsuit is, how it can be used, and how it may impact their case. In Virginia, a Plaintiff is allowed one nonsuit as a matter of right, which can be taken at any point before a motion to strike the evidence has been sustained or before the case has been submitted to the jury.  Va. Code Ann. § 8.01-380.  This means a Plaintiff can nonsuit her case while a motion for summary judgment is pending or in the middle of trial if she does not like the make-up of the jury or how her doctor testified.  Plaintiff does not need the consent of all parties...

Inadvertent Disclosure of the Claim File – When Is It a Waiver of Privilege?

Written by Stephanie G. Cook, Esq. Edited by William J. Pfund, Esq. A recent opinion in the United States District Court for the Western District of Virginia, Abingdon Division, provides an excellent guide as to what arguments to make upon the inadvertent disclosure of privileged documents. It includes an in depth analysis of whether the attorney client privilege and the work product privilege have been waived.  Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 162058 (October 2, 2017) (vacating Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 18714 (Feb. 9, 2017). In Harleysville, an insurance company filed a declaratory judgment action asking the court to find that it had no duty to pay benefits under a policy to its insured, Holding Funeral Home. The funeral home had burned to the ground, and an expert hired by Harleysville determined the fire had been intentionally set. Harleysville sought to deny coverage on the grounds of material misrepresentation. During Harleysville’s investigation, an investigator for Harleysville shared information with the National Insurance Crime Bureau (NICB) by uploading it to a “Box Folder” on an internet file sharing service.  An email with a sharing link was sent by the investigator to NICB. No password was required in order to access the folder. During the course of discovery in the declaratory judgment action, counsel for Holding issued a subpoena to NICB requesting their entire file pertaining to the fire. NICB produced the email from Harleysville’s investigator. By this time, the Box Folder included the entire claim file. Using the link in the email, counsel for Holding reviewed...

3 Hot Legislative Bills to Watch: Punitive Damages May Double!

Written by Kate Adams, Esq. Edited by William J. Pfund, Esq. There are three important Bills before the Virginia Senate and House of Delegates that could have a substantial impact on the damages claims that plaintiffs allowed to pursue in Virginia, and the amount of punitive damages plaintiffs are able to recover. The first Bill to watch is House Bill 323 which proposes to create a new category of claims in Virginia for loss of consortium. Virginia has long refused to recognize a cause of action for loss of consortium. House Bill 323 seeks to change this long held principle and create a cause of action for loss of consortium for the injury of a spouse, parent or minor child. The Bill would create a new Code Section, 8.01-38.2, and would allow the spouse of a person who suffers personal injury, the parent of a minor child who suffers personal injury, and the adult child of a person who suffers personal injury to recover damages for loss of consortium. Damages would include loss of services, loss of society and companionship, and lost wages of the person who has to care for the injured person or the minor children of the injured person. Under the proposed Bill, a spouse could recover damages for the loss of sexual relations with the injured person. The bill provides that such a cause of action may be brought independently or together with the injured party’s cause of action. If this Bill passes, the number of claims could dramatically increase and what were relatively minor claims could become more expensive to resolve. A simple car...

An Update on “Termination for Cause” in Workers’ Compensation

Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release.   Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...

KPM LAW wins Virginia Supreme Court case making indemnity contracts easier to enforce

Written by Brian Cafritz, Esq   Practically every business, in some form or fashion, relies on contractors and vendors to efficiently operate.  Almost all contracts governing these relationships contain some form of an indemnity clause.  Whether it is a retailer, restaurant, or service industry contract, these indemnity provisions allow parties to deliberately and intelligently control risk.   Unfortunately, when something goes wrong, enforcing those indemnity agreements can be more difficult than getting a party to agree to indemnity in the first place.  Recently, KPM LAW sought to enforce one such indemnity provision for one its clients. In doing so, we opened the door to allow for an easier means of enforcing indemnity agreements in Virginia.   On February 1, 2018, in the case of Dominion Nuclear Connecticut, Inc. v. Securitas Security Services USA, Inc., ___ Va. ___ (2018) Record No. 170130, the Virginia Supreme Court agreed with KPM LAW attorneys and ruled that Dominion could rely upon issues raised in its affirmative defense to trigger the duty to defend in an indemnity clause.   The facts of the case were largely undisputed.  Dominion operated a Nuclear Power Plant in Connecticut.  As part of its operations, it contracted with Securitas to provide security services at the power plant.  The contract contained an indemnity provision requiring Securitas to defend and indemnify Dominion to the extent the claim arose from Securitas’s negligence.  One day, a Securitas guard slipped and fell on ice as she was performing her security rounds at the power plant.  She sued Dominion under a premises liability theory. The only allegation in her Complaint was that Dominion was negligent...