The Importance of Asking if a Plaintiff has Filed for a Bankruptcy in Discovery

The Importance of Asking if a Plaintiff has Filed for a Bankruptcy in Discovery

Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq. There are two important reasons for asking if a plaintiff has filed her bankruptcy in discovery.  The first reason is to try and challenge the admissibility of the plaintiff’s medical bills.  In Virginia, a plaintiff is allowed to claim all of their gross medical bills incurred as a result of an accident even if the bills were paid by a health insurance company or other source.  This is known as the collateral source rule.  However, some Virginia courts and federal 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 can function as a limited exception to the collateral source rule. The other important reason is standing.  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.  Instead, 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...
Strategies for An Effective Recorded Statement

Strategies for An Effective Recorded Statement

Written by Franice B. Georges, Esq. Edited by Bob McAdam, Esq. The recorded statement can be an extremely important tool in defending a workers’ compensation claim. It is an opportunity for the claims handler to speak with the injured worker close in time to the work accident, when memories are the freshest and before outside influences can affect the worker’s version of the accident. You should think of this as an opportunity to thoroughly investigate compensability and to lock in the injured worker’s version of the accident and claims of injury. But, it can also be used to gather important collateral information including the injured worker’s health history, claims history, employment history, identification of witnesses, and subrogation possibilities. Taking an effective recorded statement involves preparation, strategy and listening skills. Based on the information you gather from the employer during your initial investigation about the type of accident and injury, take a moment and think about the types of questions you will want to ask. In addition to the standard questions including contact information for the injured worker and the facts of the accident and injury, consider other things that are a little outside the box that could lead to some helpful information. For example, are there other plausible explanations for the injury outside of the work environment, like hobbies, sports activities, motor vehicle accidents, or pre-existing medical conditions? If the injured worker identifies other potential explanations for the injury, you now have additional avenues to investigate. If the injured worker does not identify potential explanations for the injury and it turns out later that in fact, there are other...
When is a Full and Final Settlement Not Final?

When is a Full and Final Settlement Not Final?

Written by Chris Wilson, Esq. Edited by Bob McAdam, Esq.  Two recent decisions from the Court of Appeals of Virginia and the Virginia Workers’ Compensation Commission create uncertainty regarding when employers and carriers can be sure that there will be no further litigation in settled workers’ compensation claims. The case decided by the Full Commission, Greatheart Jr. v. City of Hampton, JCN VA00001102641 (Apr. 12, 2022) involved an application by the claimant seeking to compel the employer and carrier to pay the balance of bills for medical services the claimant received on October 29, 2015. The claimant’s workers’ compensation claim settled full and final on November 1, 2019. The defendants argued that the settlement Order extinguished the claimant’s right to seek payment of unpaid medical balances, and that the claimant therefore lacked standing to pursue his claim. As is common in accepted workers’ compensation claims, the employer and carrier agreed as part of the settlement to pay for all reasonable, necessary, and causally related medical treatment rendered from the date of the accident through the date the settlement Order was entered by the Commission. The Order, however, also included language stating that the settlement “shall be and hereby is a complete extinguishment of all claims of any nature whatsoever of the claimant . . . that are now due or that hereafter may become due . . . including, but not limited to, claims for . . . medical benefits . . . .” Documentation submitted by the claimant indicated the carrier had partially paid the bill in question in 2016, leaving a balance of roughly $8,000. The bill...
Brian Cafritz Named to Advisory Board of SERMA

Brian Cafritz Named to Advisory Board of SERMA

Chicago, IL, June 6, 2022 — The Sports and Entertainment Risk Management Alliance (SERMA) announces the appointments of Scott W. Bermack, Weber Gallagher co-chair of the firm’s General Liability Practice and managing partner of the New York Office, and KPM LAW’s Brian A. Cafritz, Esq., Managing Partner of the firm’s Leisure & Entertainment Litigation Group as well as the Restaurant & Retail Litigation Group, to the Advisory Board. In this new role as Advisory Board Members, Bermack and Cafritz will focus on the goals of increasing SERMA’s membership and quality content. With the appointment of Cafritz and Bermack, the advisory board now comprises 21 members, 18 of whom are industry executives. SERMA is the first risk management association devoted entirely to the sports and entertainment industries. It is an organization of risk managers, claims managers, general counsels, outside counsel and other associated professionals who work in the sports and entertainment field. “I am excited to welcome Scott and Brian to SERMA’s advisory board, which is made up of some of our industries’ most dynamic and engaging leaders,” said Rich Lenkov, SERMA’s founder and a capital member of Downey & Lenkov. “We look forward to their contribution to this group as we share best practices, common solutions, and industry trends.” “SERMA fills a gap in the sports and entertainment industries and I’m thrilled to join the association’s advisory board, which is made up of the best and brightest in their fields,” said Bermack. “I look forward to providing value to the board, the association, and SERMA members.” Adds Cafritz, “Scott and I are honored that our peers have the confidence...
Balancing Interests: Reimbursements for Rental Vehicles After an Accident

Balancing Interests: Reimbursements for Rental Vehicles After an Accident

After an automobile accident, it can often be difficult for those involved to find a replacement vehicle.  The Virginia General Assembly addressed this fact with the implementation of Va. Code Ann. § 8.01-66, which provides reimbursement to a non-at-fault party for costs associated with a temporary rental vehicle.  In drafting this code section, the General Assembly clearly attempted to balance the interests of both the at- fault and innocent party. 8.01-66 allows a party who is “entitled to recover for damage to or destruction of a motor vehicle . . . to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle.” Va. Code Ann. § 8.01-66(A). The General Assembly placed a few restrictions on this avenue of damage recovery in an attempt to balance the interests of both parties to the accident.  These balancing restrictions can play an important role in an individual’s ability to recover and the amount of such recovery. First, the individual seeking these damages must be “entitled to recover for damages” as a result of the accident.  Though this is the first, and seemingly most basic step, it may prove difficult in practice.  Because Virginia adheres to the doctrine of contributory negligence, if the party seeking damages negligently contributed to the accident in any way, he or she will be barred from recovery under § 8.01-66(A).  Therefore, analyzing the facts surrounding each accident is the important first step to applying § 8.01-66(A). Second, § 8.01-66(A) requires that the costs must actually be...