by KPMLAW | Jun 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Matthew V. Daly, Esq. Edited by Janeen B. Koch, Esq. “Parallel proceedings” are two legal proceedings arising out of a single set of facts, ongoing simultaneously –civil, criminal, or administrative. A common example in the liability world is a defendant in a car accident suit that is simultaneously pursuing his own claim for injuries sustained in the same accident. Such a scenario, and all others involving a parallel proceeding, requires the insurer and defense counsel to work together to make certain the insured’s interests in both proceedings are adequately protected. While all parallel proceedings present unique challenges, a particularly sensitive set of issues arises when the defendant in a civil case faces a simultaneous criminal prosecution arising from the same incident. Thanks to the Sixth Amendment guarantee to a speedy trial, in many cases, any criminal charges arising from the same incident are fully adjudicated by the time civil litigation begins. However, it is entirely possible for a criminal prosecution to extend well into the discovery phase of a civil case, particularly in cases involving more serious charges (e.g., hit and run, driving under the influence, manslaughter). In those instances, the civil discovery can be a source of valuable information to the criminal prosecution – possibly including damaging party admissions by the defendant – all of particular interest to prosecutors hamstrung by the more limited criminal discovery rules. The defendant may be able to protect himself by invoking his Fifth Amendment privilege against self-incrimination in the civil case. The Fifth Amendment provides, in part, “[n]o person…shall be compelled in any criminal case to be a witness against...
by KPMLAW | Jun 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Rachel Riordan, Esq. Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. In other cases, the words of a statute are vague enough to allow a Deputy Commissioner to infer his or her own interpretation of the meaning of words. In Roberson v. Peninsula Auto Painting, Jurisdiction Claim No. 1353553 (April 28, 2016), the Commission addressed the claimant’s request for a hand brake for his motorcycle. The claimant sustained a compensable right knee injury which, unfortunately, developed an infection requiring an above-the-knee amputation. The claimant requested payment for the modification of his motorcycle. Virginia Code Section 65.2-603 addresses the defendants’ responsibility for medical equipment and modifications. The statute includes modifications to the claimant’s home and automobile up to $42,000.00 per accident. Pertinent to the statutory dispute in Roberson, it provides for “modifications to or equipment for the employee’s automobile…” The Deputy Commissioner, in his ruling, acknowledged that a motorcycle is not precisely an automobile, but it serves the same purpose and is an automated means of transportation. Therefore, the Deputy Commissioner believed the term “automobile” was vague and it could reasonably be interpreted to be any automated means of transportation, including a motorcycle. The employer argued the word “automobile” was not vague and a motorcycle is not an automobile. In other Virginia statutes, the term “motor vehicle” has been specifically defined as an “automobile, motorcycle, mobile home, truck, van or other vehicle operating on public highways and streets.” Virginia...
by KPMLAW | Jun 14, 2016 | KPMBlog, News, Updates
Author: Lee Hoyle, Esq. Editor: Brian Cafritz, Esq. Although the UCC offers some consistency between states, Products liability lawsuits, in general, are creatures of state law. 50 states means 50 potentially different tort laws. Each state can take its own approach to issues – from whether to adopt strict liability to the standard of admissibility for expert testimony to admissibility of other complaints about the product – and decide differently. Therein lies the problem. The potential disparity between outcomes from one state to the next can cause nightmares for anyone attempting to evaluate risks associated with selling products across the country. Fortunately (at least for products liability defendants), in some cases, Federal law may dictate a single, consistent answer: no products liability on a theory inconsistent with Federal law. Even where states have answered a question one way, Federal law may have something else to say. Federal law is the supreme law of the land, so any conflicting state law cannot be enforced. Such conflicts rarely arise in tort law, because there are few federal laws addressing torts. There are some industries that receive claims preemption as to certain claims due to extensive federal regulation of the industry as a whole. For example, drug manufacturers could not be sued for failure to warn when their labels complied with FDA requirements in Pliva, Inc. v. Mensing, 564 U.S. 604 (2011), while an automaker could not be held liable for failing to include airbags when such a requirement conflicted with the Department of Transportation’s regulations in Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000). One interesting (and still developing)...
by KPMLAW | Jun 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Gary Reinhardt, Esq. In Virginia, a material misrepresentation in an insurance application may render the insurance policy voidable. Who is an “applicant” is a question that an insurer must answer, particularly with small businesses set up as LLCs or corporations. In Jeb Stuart Auction Services, LLC v. West American Ins. Co., 122 F.Supp.3d 479 (W.D. Va. 2015), the Court ruled on who was the “applicant” when an individual completed an insurance application for an LLC. The person completing the application previously had been convicted of insurance fraud. The insurance application asked, “Has any applicant been indicted for or convicted of any degree of the crime of fraud . . .” The individual completing the application on behalf of the LLC answered “No” to this question. The individual then signed the application at the “Applicant Signature” location. Following a fire, the insurer voided the policy and denied coverage, claiming that the individual’s “No” answer to the fraud question amounted to a material misrepresentation in the application. The insured countered that the individual was not the “applicant.” Instead, the LLC was the “applicant” and the LLC had not been convicted of fraud, the LLC had not materially misrepresented facts on the application and, therefore, the LLC had coverage for the fire. The insurer responded that an LLC obviously cannot complete an application and must speak through its members. Further, in order to assess risk, the application must seek information about the party or parties that make up an LLC. The insurer argued that the failure to disclose the fraud conviction voided the policy. The Court sided with the LLC,...
by KPMLAW | Jun 14, 2016 | Uncategorized
In attorney Chris Bergin’s own words… When I graduated from The College of William and Mary in 2011, I was incredibly conflicted about what to do with the rest of my life. Specifically, I was stuck between deciding whether I wanted to pursue a career as an actor or whether I should take the plunge and apply to law school. Fortunately for me, I chose the latter and joined this incredible law firm with an extremely talented, kind, and hard-working group of people. Still, I never lost the theater bug. Even in law school at American University, Washington College of Law, I participated in the Law Revue— a group of like-minded students who wrote, directed, and performed musical parodies poking fun at the law school experience. Past shows included: Law School Musical, and Harry Potter and the Order of the Coif. Fortunately, I work at KPM LAW’s branch in the city of Richmond, Virginia, which is fertile ground for theater. I’ve managed to take part in several local theater productions including upcoming performances of Arsenic and Old Lace at the Dogwood Dell Festival of Arts, and The Boy with The Lion at Firehouse Theater. On top of that, I am also a performer with CSZ Richmond, Home of Comedy Sportz, where I perform improvisational-style comedy shows with some of Richmond’s funniest people. I believe my experiences in theater and improvisation have made me an effective speaker and a powerful advocate. They taught me to think on my feet, engage my audience, and make my points effectively. I am delighted that I get to work in a city where I...
