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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...

Court Ices Plaintiff’s Claim that Hotel was Negligent for Running a Fountain in Freezing Temps

Written by Brian Cafritz, Esq.  and Chris Bergin, Esq. In terms of sheer volume, the most relentless legal threat facing restaurant and retail owners is the deluge of slip and fall claims.  Fortunately for Virginia-based businesses, the premises liability law within the Commonwealth tends to be defense-friendly. For a Plaintiff to establish a claim of premises liability against a restaurant or retail owner, he must prove that he was harmed by a known danger on the property.  Typically, this boils down to two issues:  Did a dangerous condition exist on the premises? And did the Defendant have notice of that danger prior to the Plaintiff’s accident? The second issue—whether a business had notice of a dangerous condition— is the most litigated.  There are three ways a Plaintiff can establish notice: (1) by proving that the Defendant had actual notice of a dangerous condition; (2) by proving that the Defendant had constructive notice of a dangerous condition; or (3) by proving that the Defendant created the dangerous condition by its own affirmative conduct.  Each method of establishing notice comes with its own legal standard, which the Plaintiff must meet. Most of the case law in Virginia focuses on the legal standards for establishing actual and constructive notice, which are both typically rigid and defense-friendly standards.  Plaintiff’s, however, often try an end around the notice hurdle by arguing a concept known as The Genesis Doctrine.  Under this theory, the Defendant is charged with notice for any reasonably foreseeable dangers created by its conduct.  In other words, because the Defendant is the “Genesis of the condition,” notice is presumed if the danger...

Service of Process Upon an Uninsured or Underinsured Motorist Carrier Pursuant to Virginia Code § 38.2-2206(F)

Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Virginia Code Section 38.2-2206(F) provides, in part: If any action is instituted against the owner or operator of an uninsured or underinsured motor vehicle by any insured intending to rely on the uninsured or underinsured coverage provision or endorsement of this policy under which the insured is making a claim, then the insured shall serve a copy of the process upon this insurer in the manner prescribed by law, as though the insurer were a party defendant.   A circuit court in Virginia recently examined the service provisions of this statute and overruled an underinsured motorist carrier’s plea in bar in which the carrier requested dismissal on the basis that it was not served within one year of the filing of the complaint. Jones v. Goldsborough, 2016 Va. Cir. LEXIS 189. In Goldsborough, an accident occurred on April 11, 2013. The plaintiff filed suit on March 8, 2015. The defendant was served on December 29, 2015, within the one year limitation prescribed by Va. Code § 8.01-275.1.  The underinsured motorist carrier was served on March 23, 2016, after the one year anniversary of the filing date.   In overruling the insurer’s plea in bar, the court reiterated that the service of process rules under Va. Code § 8.01-275.1 and Rule 3:5(e) of the Rules of the Supreme Court of Virginia do not apply to uninsured or underinsured motorist carriers.  Those provisions apply only to named defendants. They require service of process upon a defendant within twelve months of commencement of an action. The court reasoned that service of...

Summer Suits? Defending Claims Involving Children & Summer Activities

Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. As the weather warms, schools across Virginia recess for summer. Families throughout the state look forward to a few months of rest, relaxation, and recreation. Along with the fun that comes with recreational activities, there are also specific risks when participating in these activities, especially when children are involved. This article will address some of specific issues that arise in defending these types of claims. Contributory Negligence and Assumption of Risk for Minors Under Virginia law, the defenses of contributory negligence and assumption of risk are complete bars to recovery. However, the considerations differ when the plaintiff is a child. A child under seven years of age is incapable of being contributorily negligent. Atlantic C.L.C. Co. v. Clements , 184 Va. 656, 664-665, 36 S.E. 553, 557 (1946). A child between 7 and 14 is presumed to be incapable of negligence. However, this is a rebuttable presumption, and such a child can be contributorily negligent upon evidence that 1) the child had the capacity to understand the nature and perils associated with his conduct based upon his age, intelligence and experience and that 2) the child’s conduct did not conform to the standard of a reasonable person of the same age, intelligence and experience.  Va. Elec. & Power Co. v. Dungee 258 Va. 235, 520 S.E.,2d 164 (1999). A child between the ages of fourteen and eighteen is held to the degree of care which persons of the same age, experience, intelligence, discretion and knowledge would exercise under the circumstances. Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189...

When Do Animal Encounters in the Workplace “Arise Out Of” Employment?

Written by Rachel Riordan, Esq. Edited by Claire Carr, Esq. Animal attack cases are not uncommon events and animal bites often raise interesting compensability questions in workers’ compensation cases.  According to the Humane Society of the United States, there are approximately 78.2 million owned dogs in the country and about 40 percent of all households have at least one dog or cat.  The United States Department of Agriculture estimates there are over 4,000 bee species in the country and bee allergies are becoming more prevalent.  The animal encounter cases from the Virginia Workers’ Compensation Commission include horses, snakes, spiders, ticks, and even a compensable cat attack! When evaluating animal bite cases, it is important to remember that Virginia is an “actual risk” state and not a “positional risk” state.  In other words, the mere happening of an accident in the workplace is not compensable unless certain criteria are met.  Most significantly, the accident must “arise out of” the employment.  There must be a causal connection between the conditions under which the work is required to be performed and the resulting injury. With respect to animal bites, the Virginia Workers’ Compensation Act requires that the injury be fairly traced to the circumstances or environment of the claimant’s employment.  Milton v. Gibson Lumber Co., VWC File No. 224-32-58 (Sept. 22, 2006).  The employment must expose the claimant to a greater risk than the general public.  For example, benefits were awarded in Fuller v. Randolph M. Bailey t/a Wet Pets, 67 O.I.C. 35 (1988), where the employee was working in a pet store and was bitten by a spider, and in Phelps...