by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Gary Reinhardt, Esq. The Virginia Administrative Code provides the framework for insurer market conduct. Recently, the Bureau of Insurance (BOI) proposed changes to Chapter 400 of the Virginia Administrative Code, “Rules Governing Unfair Claim Settlement Practices.” These “rules” currently “define certain minimum standards which, if violated with such frequency as to indicate a general business practice, will be deemed to constitute unfair claim settlement practices.” These changes could significantly impact market conduct issues and audits. The proposed amendments touch just about every aspect of the regulations. For starters, the BOI even changes the “Scope” of 14 VACS-400-10 to “Purpose and Scope” and provides a lengthier explanation of these regulations: “The purpose of this chapter is to set forth minimum standards for the acknowledgement, investigation, and disposition of claims . . .” The BOI tweaked many of the definitions contained in 14 VAC5-400-20. The BOI adds definitions for such things as “Documentation,” “Estimate” and even “Person.” Of particular interest is the addition of a “Proof of Loss” definition. While most view “Proof of Loss” as a form completed by the insured as part of the insured’s policy obligations, the BOI actually broadens this definition, defining “Proof of Loss” literally. The proposed definition is “all necessary documentation reasonably required by the insurer to make a determination of benefit or coverage.” This will certainly create confusion during audits when the BOI seeks “Proof of Loss” in the file. The amendments look to expand the carrier’s duties during audits in amended 14VAC5-400-30. While the current version is vague, the proposed revision requires an insurer keep records so that “each document within...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by C. Alex Weaver, Esq. Edited by Janeen B. Koch, Esq. Voice-command technology has bridged the gap from science fiction to reality. Unfortunately, some people are learning that there are potential legal consequences for the conversations you have with your electronic devices. Groundbreaking Litigation The use of evidence obtained from voice-command technology in the courtroom is a modern reality. Prosecutors in Arkansas are attempting to obtain recordings from an Amazon Echo device (running Alexa) for use in a murder trial.[1] Prosecutors have requested access to all “audio recordings, transcribed records, text records and other data” from the Defendant’s Echo from the two-day period during which the victim is believed to have been killed. A judge has authorized a warrant for the materials. However, Amazon has fought the warrant and refused to provide the recordings. This case has captured national attention for two reasons. First, this appears to be the first time this type of evidence has been sought for use in a court case. Second, the public appears surprised this technology is always recording. Voice-Command Technology and How It Works According to the Pew Research Center, over 70 % of American adults have smart phones.[2] Nearly all of those devices contain some form of voice-command technology. The two most common technologies are Siri (on Apple devices) and OK Google (on Android devices). Both Siri and OK Google have similar modes of operation. They utilize a smartphone’s microphone to passively monitor conversations. When the programs hear certain trigger words (such as “Siri” or “Okay Google”) they send the recorded information to a corporate server which uses complex computer...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by J.H. Revere, Esq. Springtime is just around the corner and with it people will emerge from their winter cocoons and begin outdoor activities again. One area where these activities can give rise to conflicts and litigation are cyclists on the roads and highways of Virginia. Since warmer days will be here before you know it, it makes sense to review some of the rules of the road, how they apply to bicycles, and how one might consider these rules (laws and ordinances) when investigating a claim. “Bicycle’ means a device propelled solely by human power, upon which a person may ride either on or astride a regular seat attached thereto, having two or more wheels in tandem, including children’s bicycles except a toy vehicle intended for use by young children. A bicycle is a vehicle when operated on the highway.” §46.2-100 Code of Virginia, 1950, as amended. While on a public roadway, bicyclists are subject to the same rules and regulations as other highway users, “unless the context of the provision clearly indicates otherwise.” See §46.2-800, Code of Virginia, 1950, as amended. While on a walkway or sidewalk, a bicycle rider has the same obligations as a pedestrian but must yield to other pedestrians. See §46.2-904 Code of Virginia, 1950, as amended. Bicyclists are expected to obey traffic signals with certain exceptions: “[I]f a driver of a motorcycle or moped or a bicycle rider approaches an intersection that is controlled by a traffic light, the driver or rider may proceed through the intersection on a steady red light only if the driver or rider (i) comes to...
by KPMLAW | Jan 16, 2017 | KPMBlog, News, Uncategorized
Written by Stephanie Gacek Cook, Esq. There have been a number of suits filed by Virginia Polytechnic Institute & State University (“Virginia Tech”) against several general contractors who constructed various buildings on campus. In turn, these general contractors have filed suit or at least initiated claims against many of its subcontractors who performed work on these projects. The statute of limitations for claims filed by a state agency or public institution, such as Virginia Tech, is unlimited. According to Va. Code Ann. 8.01-231, “[n]o statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same.” In other words, no statute of limitations applies to the state of Virginia or its governmental bodies and agencies. Recently, however, the Supreme Court of Virginia issued an opinion that makes it clear that this unlimited statute of limitations does not also apply to claims made by general contractors against its subcontractors on projects involving state agencies. See Hensel Phelps Construction Company v. Thompson Masonry Contractor, Inc., et. al., 2016 Va. LEXIS 166, 791 S.E.2d 734. In Hensel Phelps, Virginia Tech awarded Hensel Phelps a contract to construct the Student Health & Fitness Center in 1997. The work was substantially completed in 1998. Virginia Tech issued final payment to Hensel Phelps in 1999, and Hensel Phelps issued final payment to its subcontractors also in 1999. One subcontractor was asked to fix a problem covered by their warranty, and it concluded all work by June of 2000. Virginia Tech subsequently discovered other, defective work and elected to repair...
by KPMLAW | Jan 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Brian Cafritz, Esq. Recently, in Robinette v. Wal-Mart Stores, Inc., Case 2:15-cv-00003, the USDC Western District of Virginia barred a Plaintiff’s forensic engineer from testifying as to the safety of a merchandising display. This decision has helped reinforce Virginia’s rule against the method theory of liability and has further bolstered recent decisions preventing experts from expressing opinions that are not based on industry standards. In Robinette, a Plaintiff was injured when a kettlebell weight fell from a shelf onto the Plaintiff’s foot. The Plaintiff contended that Wal-Mart should have known of the dangers posed by displaying weights in this manner, and that the kettlebell shelf needed a guard railing to make it safe. Plaintiff’s expert opined that only a small amount of horizontal force was needed to tip over the kettlebell, and because there was no railing or other means to secure the kettlebells, the display was a “dangerous and defective” condition. The Court granted the Defendant’s motion to strike this expert witness and ruled that he was simply not qualified to offer opinions on whether Wal-Mart’s merchandising practices were appropriate. The Court noted that the Plaintiff’s expert was a forensic engineer. He had no specialized training or professional experience in retail sales. His training was strictly limited to engineering. The Court acknowledged that the expert had some experience working on other falling merchandise cases, but his involvement in those prior cases had been limited to calculating the impact force of the falling merchandise, not determining the general stability or safety of retail displays. As the expert did not have any relevant retail experience, he could not...
by KPMLAW | Nov 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Francie Belton Georges, Esq. In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding? There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement. Termination by Agreement The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary...
