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...
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)...
