Bad Faith for a Bad Investigation

Written by Gary Reinhardt, Esq. The US District Court in Alexandria recently found a carrier acted in bad faith in the case of  South Boston Energy, LLC v. Hartford Steam Boiler Specialty Insurance.  In this case, the insured, a power plant, suffered a loss to a large turbine.  A piece of metal got inside the turbine and forced the insured to disassemble the turbine.  The insured reported the loss to its insurer. Initially, the insured reported an estimate of repair of $450,000.  The insurer’s adjuster responded that the loss did not exceed the power plant’s deductible.  The power plant responded quickly, listing costs far in excess of the deductible associated with the disassembly, removal, repair and re-assembly.  This response gave an estimate total cost of over $1 million. The carrier hired an engineer to go onsite and inspect the turbine. This engineer found that the damage reported came from covered losses.  He also felt that the insured’s cost estimates could be audited and lowered some. Unsatisfied, the carrier hired two other engineers.  Each found different causes of loss for the majority of turbine damage.  However, neither engineer actually physically inspected the turbine nor had either engineer repaired turbines.  Both of these engineers determined that the loss to the turbines did not meet the $500,000 policy deductible.  Without further research into the insured’s estimates or obtaining other information on the damage or the cost to repair, the carrier denied coverage. After a jury held for the insured and awarded more than $770,000 in damages, the Court turned to the bad faith allegations.  The Court applied the venerable test of bad...

Assaulted Without a Motive

Written by Joseph Smith, Esq. Edited by Rachel Riordan, Esq. When an employee is assaulted at work, there are several factors to consider in assessing whether the assault “arises out of” the employment. Assault cases are tricky to defend due to the subjective nature of why a person is attacked. Further, the issue is compounded when the assailant is not available to testify regarding the motive. Recently, KPM’s own Bob McAdam successfully argued to the Full Commission that “why” an assailant attacks a claimant is the most important factor to consider regardless of whether motive is known. In King v. DTH Contract Services, Inc., JCN VA00001225281 (Aug. 8, 2019), the claimant was injured after being assaulted by a former co-worker. The claimant worked as an attendant at a rest station on I-66 near Manassas, Virginia during a night shift. His duties included cleaning trashcans, bathrooms, and the parking lot. When not attending to his duties, he was required to remain in a locked office and make calls to VDOT every hour to confirm his well-being. On the date of the assault, the claimant was returning to the office when he was stabbed multiple times with a screwdriver. The assailant was identified as a former co-worker who had resigned in 2015. The co-worker ultimately committed suicide without ever explaining his motive for the attack. The only disputed issue in the case was whether the assault “arose out” of the claimant’s employment. It is well-settled in Virginia that a physical assault can ‘arise out of” the employment when it is the result of an actual risk arising out of the employment....
How the Changing Mindset by Millennials Affects Your Jury

How the Changing Mindset by Millennials Affects Your Jury

Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. If you are from the millennial generation, the chances are you have been derided by a family member or neighbor as being “entitled.”  If you are from an older generation, you may have even used that phrase to describe a younger employee at your office.  Older generations being annoyed or skeptical of younger generations is nothing new.  X-ers should recall being called “slackers” and Baby Boomers were defined as “hippies.”  The challenge for lawyers, adjusters and risk managers is that millennials are now the most populous generation in the United States.  Press Release, U.S. Census Bureau, and Millennials Outnumber Baby Boomers and are Far More Diverse, Census Bureau Reports (June 25, 2015). This means that millennials make up a larger percentage of your customers, employees, and yes, even jury pools, than any other generation.  Knowing that, it is important to see millennials beyond the stereotypes and determine how they are going to affect the outcome of your case. There is a certain amount of disagreement in defining the generation, but a 2019 Pew Research Center report defines millennials as those born between 1981 and 1996.  Domock, Michael, Defining generations: Where Millennials end and Generation Z begins, Pew Research Center, https://pewrsr.ch/2szqtJz, (January 17, 2019).  This means that in 2019, millennials will turn between the ages of 23 to 38.  The Pew Research Center decided on these parameters in part because the generation has to be old enough to comprehend the 9/11 terrorist attacks, which is the most significant historical event that defines them, and because they entered the workforce...

Claire C. Carr Named to 2020 Best Lawyers List

August 15, 2019 — KPM LAW is pleased to announce that Claire C. Carr been included in the 2020 Edition of The Best Lawyers in America©.  Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Claire, AV-rated by Martindale-Hubbell, has served as the managing partner of KPM’s Workers’ Compensation department since 1999. As such, she has defended claims on behalf of large national corporations, insurance carriers, and others. She has performed insurance defense litigation in approximately 75 jury trials and since 2000 has practiced exclusively in workers’ compensation defense. Claire tailors every defense to the unique needs of her clients and is celebrated for her exceptional commitment to those claims adjusters and supervisors, safety managers and risk managers with whom she partners. Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 75 countries. Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says CEO Phillip Greer. Lawyers included on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and...

Responding Offensively to Lawsuits

Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. Perhaps it is my bias as a civil defense attorney, but in many of the motor vehicle accident cases I handle, after reviewing the facts and speaking with the insured, I’m almost offended that the plaintiff brought a lawsuit in the first place. And regularly the insured defendant is incensed that they are being sued at all, especially if fault is questionable or the plaintiff did not appear injured at the scene. Consider the case of a car crash with a murky fact set in which liability is a toss-up, or even one in which negligence of the plaintiff is slightly more likely. While plaintiff may indeed have suffered property damage and personal injury, often the insured defendant also sustained property damage and in some cases even their own personal injury, however minor. In that case, the insured defendant has as much of a right to sue and recover from plaintiff. The counterclaim is the ideal tool to respond offensively when sued, but it is underutilized in the insurance defense industry. What’s striking is the breadth of Virginia Supreme Court Rule 3:9, which provides: A defendant may, at that defendant’s option, plead as a counterclaim any cause of action that the defendant has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the complaint, whether or not it is for liquidated damages, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the complaint.[1] Granted, there...

DOL Adopts New Standard To Determine Compensable Time for Truck Drivers

OVERVIEW On July 22, 2019, the Department of Labor (DOL) issued an opinion letter—FLSA2019-10—to address whether the time a truck driver spends in a sleeper berth is compensable under the Fair Labor Standards Act (FLSA). This opinion letter withdraws the DOL’s previous opinion that employers could only exclude up to eight hours during a trip that was at least 24 hours long. The opinion letter also adopts an “on-duty” test as the most appropriate way to determine whether sleeper berth time is compensable. ACTION STEPS This DOL shift on the test it uses to determine whether sleeper berth time is compensable may have a significant effect on timekeeping policies and compensation practices. Motor carriers and other institutions that employ truck drivers should review their policies and procedures to ensure that they are compensating their drivers as required by the FLSA. Background—The Old Test Until FLSA2019-10 was issued, the DOL considered that the appropriate way to determine whether sleeper berth time was compensable was to determine whether this time was non-working traveling time. Previous DOL guidance suggested that the time spent in a sleeper berth was not compensable if: The employee was not working while riding; The employee was allowed to sleep in adequate facilities furnished by the employer (such as a sleeper berth); and Sleeper berth periods were sufficiently long to allow the employee to use his or her time for the intended purpose. However, in subsequent guidance, the DOL interpreted travel time regulations to mean that employers could only exclude up to eight hours of sleeping time in a trip that is at least 24 hours long and...