by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Whether an assault upon an employee is compensable depends on a variety of factors. The initial inquiry to be made is whether it falls under the definition of a compensable injury by accident. To be compensable, an injury by accident must arise out of and in the course of employment. Va. Code § 65.2-101; County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). The claimant bears the burden of proving his injury arose out of his employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The phrase “arising out of” refers to the origin or cause of the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74; Marion Correctional Ctr. v. Henderson, 20 Va. App. 477, 479, 458 S.E.2d 301, 303 (1995). An injury arises out of the employment where there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and resulting injury. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In Virginia, the “actual risk” test is used to determine whether an injury arises out of the employment. Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989)( holding that a truck driver’s injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment.) “An accident arises out of the employment if a causal connection is established...
by KPMLAW | Aug 15, 2016 | Events, KPMBlog, News, Uncategorized, Updates
Surveys show that individuals are giving more and more to causes they care about… A few bucks here, a raffle ticket there. While giving among big donors and companies has been down in recent years, Americans individually have never given more. As a firm, we were no different. Without a single cause to which we dedicated ourselves, our gifts were scattered. We were giving a little, a lot. Food drives, sponsorships, races… but we didn’t feel impact and satisfaction that comes from donating generously to a singular cause and sticking to it. In 2016, we vowed to change that. We wanted to focus our charitable giving on a cause that meant something to the firm and our mission. We revisited our belief statement… a belief in “equal justice under the law.” At KPM, we know that justice doesn’t come cheap. It’s hard fought and won for all by the relentless conviction of the few who fight on our behalf. KPM LAW has dedicated its 2016 charitable resources to support Wounded Warrior Projects like this one. We proudly sponsored the 2016 Wounded Warrior Paracycling Series in Virginia’s Shenandoah Valley last month and celebrate the victories of these noble service men and women who so humbly defended our freedoms so that we can enjoy Justice. Congratulations to CPT (Ret) Will Reynolds and Richard Cook, and COL (Ret) Patty Collins on their success on the course. You can learn more about Wounded Warrior and the Paracycling Series here. ...
by KPMLAW | Jul 12, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Kevin Kennedy Edited by Janeen Koch Two recent Virginia circuit court opinions have thrown into confusion the pre-trial duties owed by a UIM carrier to a plaintiff. Understanding the facts of these cases and arguments that led to different rulings can help avoid any potential bad faith claims when a carrier is adverse to a policyholder who has brought a UIM claim. The first case, Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, is a decision from Norfolk Circuit Court that was issued by Judge Mary Jane Hall in April of 2015. In this case, defendant admitted liability for the collision; the plaintiff was claiming a traumatic brain injury; defendant’s insurance carrier had offered its full coverage of $100,000 (the stipulated special damages exceeded $63,000) and Allstate (the UIM carrier) had made absolutely no offer to settle the case at the time the bad faith motion was filed. Eventually, Allstate did make a settlement offer five days before trial, after Plaintiff had incurred additional expenses for trial. That initial offer was $50,000, increased to $55,000, and finally increased again the day before trial to $75,000. At trial, the jury returned a verdict to the plaintiff for $800,000.00. Counsel for Allstate argued that it did not owe any pre-judgment duties to the plaintiff. Pursuant to Va. Code § 38.2-2206, its sole duty is to “pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits not less than the [legal requirement].” However, the court found that a UIM carrier is still subject to penalties...
by KPMLAW | Jul 12, 2016 | KPMBlog, News, Uncategorized
Written by Chris Bergin Edited by Brian Cafritz Racial and Religious discrimination has been an issue in our country for generations. Gender, Age and Sexual Orientation discrimination, however, has become more of an issue in recent years. For Retailers and Restaurateurs who deal with the public at large, the issue is even more pronounced. On June 26, 2015—just about one year ago—the United States Supreme Court returned its landmark ruling in Obergefell v. Hodges holding that the United States Constitution guarantees same-sex couples the right to marry. In the immediate aftermath of this decision, some business owners actively protested the ruling by categorically refusing to provide services for same-sex weddings. In doing so, those same businesses, knowingly or not, opened themselves up to liability under public accommodation statutes. Although public accommodation statutes first appeared in the 50’s and 60’s to combat racial discrimination, they are rapidly evolving to combat sex discrimination, religious discrimination, and discrimination against the LGBTQUIA community. Restaurant and retail owners should understand these statutes to ensure compliance and mitigate risks. Generally speaking, property owners have a right to exclude anyone from their private property for any reason. There is, however, one major limitation on this general rule: federal, state, and municipal public accommodation statutes. These statutes prohibit private property owners who operate “public accommodations” from excluding customers on certain discriminatory grounds. For business owners, this raises two questions: (1) what qualifies as a public accommodation, and (2) who do public accommodation statutes protect? What Qualifies as a Public Accommodation? Under the federal public accommodation statute, a “public accommodation” is one of the following: Hotels and other...
by KPMLAW | Jul 12, 2016 | Events, KPMBlog, News, Uncategorized
Insurance policies define “Occurrence.” Generally, policies define an “occurrence” as an “accident” or “repeated exposure to the same or similar” conditions. Liability policies require an occurrence for coverage and require an insured to give prompt notice of any “occurrence” that could result in a claim. First-party coverage, however, often does not rely on the word “occurrence.” Most policies require an insured to give prompt notice of a “loss.” Recently, the United States District Court for the Western District of Virginia determined if “occurrence” and “loss” meant the same thing and what impact the use of each word had on an insured’s duty to timely report a first-party claim. In Wheeler v. Standard Fire Ins. Co., 2016 U.S. Dist. LEXIS 38255, Wheeler suffered damage to her barn when trees fell on the porch of the barn. Thinking that the barn repair cost would be less than her deductible, Wheeler had unidentified day laborers repair the damage. She did not notice any other damage at the time. Several months after the repair, Wheeler heard rumbling noises and then the foundation basement wall of the barn collapsed on the same side of the barn where the trees fell. Wheeler reported the earlier damage and the wall collapse to her insurer. Experts determined that the trees falling months earlier led to the wall collapsing. Despite that, the insurer denied coverage for several reasons, the first that Wheeler did not “promptly” report her “loss” to the insurer. The insurer claimed that Wheeler should have reported her claim when the trees fell on the barn. The Honorable Norman K. Moon first noted that “occurrence” is...
