by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Editor: Janeen Koch, Esquire Author: J.H. Revere, Esquire Those of us at Kalbaugh, Pfund and Messersmith practice every day in the various Courts of this Commonwealth of Virginia, but many of the people we work with do not have the luxury of focusing on a single jurisdiction. The following outline is a very general and simple outline of Virginia’s Court System, that will hopefully help anyone understand where a particular case sits within Virginia’s Court framework. If you have any more detailed questions please do not hesitate to contact any one of KPM’s civil litigation attorneys. We have attorneys admitted to practice in all of these Courts as well as Courts in North Carolina, West Virginia, Maryland and the District of Columbia. As a preliminary matter, Virginia has thirty-one (31) judicial districts comprised of ninety-five (95) counties and thirty-eight (38) independent cities, each with their own court system. For purposes of brevity we will not address Magistrates (who handle only criminal issues), Juvenile and Domestic Relations Courts (divorce, child custody, juvenile crime), or the Virginia Workers Compensation Commission (administrative courts). GENERAL DISTRICT COURT The General District Court is the lowest level civil Court in Virginia. They are considered a Court not “of record”. Virginia’s General District Courts have exclusive jurisdiction over matters of less than $4500.00 and concurrent or joint jurisdiction with the Circuit Courts for matters up to $25,000.00 (exclusive of interest). The General District Court has no jurisdiction over matters worth more than $25,000.00 and these matters must be filed in another Court (e.g. Circuit Court). Suits may be filed as a Complaint like in Circuit Court...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Author: Brian Cafritz, Esquire It is all too common that a customer or piece of equipment spills or drips liquid on the floor. The business learns of the problem and places a cone on the floor either prior to cleaning or after cleaning. Despite the warning cone, a guest falls and sues the business for negligence. Because Virginia applies a contributory negligence standard (1% negligence by plaintiff is a total bar to recovery), the defendant almost always has a decent liability argument to take to the jury. However, the real goal is to have the case dismissed on summary judgment and avoid the uncertainty of a jury altogether. Over the last 12 months, several new opinions in Virginia Federal Courts have provided valuable guidance on how to assess the potential liability of these claims, and they specifically point to critical facts to determine whether summary judgment is appropriate or not. In each of the cases, the court focused on fact issues, such as “How close was the cone to the fall?” and “Was the condition that caused the fall the same condition the cone was warning against? Like most states, the general law of premises liability in Virginia is that a business owes a duty to exercise reasonable care to make the particular area reasonably safe for plaintiff’s use, or to give adequate warning of any hidden or concealed danger that it knows or should know about. However, behind that basic tenet of the law, there are a seemingly infinite number of variations in fact patterns that make the simplest concept problematic. Over the years, the Virginia Supreme Court...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Editor: Rachel Riordan, Esquire Author: Robert McAdam, Esquire The “Willful Misconduct Defense” has recently been given a boost by the Court of Appeals in Layne v Crist Elect. Contr., Inc. 64 Va. App. 342, 768 S.E.2d 261 (2015). Under familiar statutory law (Virginia Code §65.2-306(A)(5)) workers’ compensation benefits will be denied to a claimant when the claimant commits a willful breach of a workplace safety rule brought to his attention prior to the accident; even though the underlying event would otherwise be compensable. This statute was recently reinvigorated by Layne. In Layne, the claimant was an employee of an electrical contractor and a subcontractor performing electrical work in a warehouse owned by Delta Star. The claimant was installing electrical conduit from a scissor lift high up in Delta Star’s core cutting room and had almost completed installing the conduit. Delta Star’s bridge crane, which was operational at the time, hit claimant’s scissor lift, causing both the scissor lift and claimant to fall far to the floor. The claimant sustained catastrophic injuries. The Claimant’s accident arose out of and occurred in the course of the employment. However, the Employer raised a willful misconduct defense, asserting the bridge crane would not have hit the scissor lift, and the injuries would not have occurred, if the claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. This procedure ensured that the electrified rails which allowed the bridge crane to move were inoperable, ensuring that the crane could not move. At hearing, the evidence showed the claimant was never given any written materials addressing the “lockout-tagout” procedure and did not...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Gary Reinhardt, Managing Partner in KPM’s Coverage & Fraud Department, answers questions related to recent changes to the Underinsured Motorist Law. ...
by KPMLAW | Aug 13, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Stephanie Gacek Cook, Esquire Kalbaugh, Pfund & Messersmith, P.C. is pleased to offer its special Legislative post on our blog. This update contains summaries of bills of interest to our readers that were enacted by the General Assembly in its 2015 session and that took effect as of July 1, 2015. This information is taken from the Summary of the 2015 Session of the General Assembly published by the Division of Legislative Services. The abbreviations used are as follows: HB – House Bill; SB – Senate Bill. If you wish to read the entire text of a bill to see how it changed the previously existing law, you may visit the Virginia General Assembly Legislative Services website at http://virginiageneralassembly.gov. UM/UIM. The most notable change in the insurance industry is to the UIM/UM laws, found in Va. Code Ann. 38.2-2206 and 8.01-66.1:1. Our newsletter of June 2015 provided a detailed overview of these changes, and you can visit our website at www.kpmlaw.com for more information. In short, these changes establish a procedure by which an injured person or personal representative may settle a claim with a liability insurer and its insured for the available limits of coverage without jeopardizing a claim for underinsured motorist benefits. Upon payment of the available limits, the liability insurer has no further duties to its insured and the underinsured motorist benefits insurer shall have no right of subrogation or claim against the underinsured motorist, unless the underinsured motorist unreasonably fails to cooperate with the underinsured motorist insurer in the defense of any lawsuit. It is important...
by KPMLAW | Jul 22, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Randall C. Lenhart, Jr., Esquire The Supreme Court of Virginia recently addressed the issue of when to exclude evidence when the prejudicial effect substantially exceeds its probative value in Julia Cain, et al. v. Joe Lee, 2015 Va. LEXIS 77 (June 4, 2015) as it relates to post-accident conduct by the defendant in determining punitive damages. In Cain, Julia Cain was driving with her daughters in their vehicle when she began to slow her vehicle due to traffic in front of her. As she slowed down, a vehicle being driven by the defendant rear-ended the Cains’ vehicle which caused the Cains’ vehicle to collide with the car in front of it. After the accident, the state trooper who responded to the scene determined that the defendant was possibly intoxicated due to his appearance and the presence of a strong odor of alcohol. The defendant failed a field sobriety test and then consented to a preliminary breath test which registered a blood alcohol content of .25 (over three times the legal limit of .08). After being arrested and brought before the magistrate, the defendant refused to submit to a breath test which resulted in him being charged with unreasonably refusing to submit to a breath test in violation of Virginia Code § 18.2-268.3 and driving under the influence (“DUI”) in violation of Virginia Code § 18.2-266. At the traffic hearing, the defendant pled guilty to DUI and the Commonwealth agreed to nolle prosequi the charge for the unreasonable refusal charge pursuant to a plea bargain. Julia Cain and her two daughters...
