by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by Brian A. Cafritz, Esq. With the looming FDA deadline requiring restaurants to make nutritional data on food products available, restaurateurs wondering about its impact need only look to the recent headlines to see the latest trend in litigation. This month alone, Subway settled a class action lawsuit for selling “foot-long subs” that were only 11 inches. Peet’s Coffee has been sued for selling less coffee in cups that are charged as 12 and 32 oz. Indeed, restaurants are now learning what retailers and manufacturers of goods learned long ago…that the public can be very demanding and even more unforgiving. But what has spurred this attack on restaurants? The world is changing faster than most of us can keep up. Access to information instantly streams to the palm of our hand. Social media has connected millions to observations and experiences thousands of miles away. In addition, society has evolved to a point where large verdicts and class actions against corporate giants are not unthinkable outliers but are embedded in the culture of our society. To be certain, easy access to information has created a consumer base that demands immediate and accurate information, and has created an expectation that a selected product be served as promised without error. Whether it is intended or not, the language used in a restaurant’s description of a product can create an express warranty to the consumer. Typically quantifiable, provable, or measurable descriptions in a product’s ingredients, (Organic, Vegan, or Gluten Free), or in the product’s size (Quarter Pounder, Foot Long, or 32 oz.) create consumer expectations that may be misleading if the product...
by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by Christopher R. Wilson, Esq. Edited by Rachel A. Riordan, Esq. Consider this scenario: while at work a man slips and falls on a wet floor, breaking his arm. In the process, he also chips his dentures, breaks his eyeglasses, and damages a spinal cord stimulator used to treat pre-existing back pain. Which of these injuries or damages is compensable under the Virginia Worker’s Compensation Act? You’re probably very familiar with Virginia’s rules on the compensability of physical injuries, but what about other items damaged in a compensable accident—how do you determine which items the employer has to pay for? The Virginia Worker’s Compensation Commission recently addressed this issue in a case called Quiroz v. Prince William County Schools, JCN VA 00000647619 (Oct. 27, 2014). In Quiroz, just like in the example above, the claimant slipped and fell at work, suffering several compensable injuries. Also damaged in the fall, however, was the claimant’s spinal cord stimulator, which doctors had surgically implanted years earlier to treat failed back syndrome. At the evidentiary hearing, the claimant argued that the employer should be held responsible for repairing or replacing the spinal cord stimulator in addition to the medical treatment for the physical injuries. Virginia Code §65.2-603(A)(2) provides that employers: shall repair, if repairable, or replace dentures, artificial limbs, or other prosthetic or orthotic devices damaged in an accident otherwise compensable under worker’s compensation . . . . The claimant relied on this section to argue that a spinal cord stimulator qualified as a “prosthetic or orthotic device” because it “reduce[d] pain in order to improve the functionality of the spine.” Both...
by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by John K. Messersmith, Esq. & Sarah Kathryn Atkinson, Esq. Edited by Janeen Koch, Esq. How often have you had a claim where the facts suggested your insured had no liability but years after the accident, the claim re-emerges on your desk as a lawsuit with your insured as a defendant? As a claims professional, a huge concern in any case involving multiple entities and parties is keeping your coverage from being exposed. Transportation cases are particularly problematic as the industry is known for its complicated relationships associated with owner/operators, leased tractors, leased trailers and other contractual arrangements. Plaintiffs’ attorneys mine those relationships for ways to include new parties and importantly, to find additional layers of coverage. One such tactic that seems to be gaining favor with plaintiff attorneys is to allege a “joint venture” between a tractor or trailer owner and the operator. Traditionally, plaintiffs simply alleged an employer-employee relationship and therefore, the employee’s negligence was vicariously imposed on the employer. Obviously, the existence of such a relationship in the trucking industry can be complicated and requires a fact-based determination of a number of factors, the most important of which is the right to control. Coker v. Gunter, 191 Va. 747 (1951). Today, however, most motor carriers and operators are engaged in a contractual relationship represented by a contract, lease or purchase agreement. This complex and often tangled set of relationships has given rise to some attorneys arguing that this type of relationship constitutes a joint venture. They simply allege that the owner and the operator engaged in a joint venture to transport product for a...
by KPMLAW | Nov 4, 2015 | Events, KPMBlog, News, Uncategorized
KPM LAW’s Gary Reinhardt, Managing Partner of KPM’s Coverage & Fraud Department, will present at The Property & Liability Resource Bureau’s Eastern Regional Adjusters Conference in Atlanta, Georgia, on November 10-11, 2015. An AV-rated attorney who serves as General Counsel to the International Association of Special Investigation Units, Gary is speaking on the latest trends and strategies in property fraud claims. Gary and the team at KPM LAW hope to see you at this valuable two-day conference. More information can be found at http://www.plrbregionalconferences.org/. ...
by KPMLAW | Oct 29, 2015 | KPMBlog, News, Uncategorized, Updates
Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis. UPDATE By Brian Cafritz, Esq. On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.” Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Barry Montgomery, Esq. Edited by Janeen Koch, Esq. The Virginia Supreme Court recently shot down two common arguments used by the plaintiff’s bar in first party insurance litigation. As discussed below, insurers in Virginia should keep both of these cases in mind when handling first party claims and litigation. I. Policy Condition Limiting Time In Which The Insured Can Sue In Homeowners’/Fire Policies Is Not subject To Tolling On September 17, 2015, the Virginia Supreme Court dispelled a common argument that the insurance policy condition requiring that a lawsuit be filed within 2 years of the date of loss is subject to a statutory “tolling” provision when a lawsuit is non-suited. In Allstate v. Ploutis, (Record No. 141536), Ploutis sued Allstate for breach of contract under a homeowners’ policy arising out of water damage to her house. Ploutis and Allstate could not agree on the costs of repairs and Ploutis sued for breach of contract. The policy contained a common condition that any lawsuit against the insurer must be filed within 2 years of the date of loss. Ploutis timely filed her lawsuit 1 year and 11 months after the date of loss. However, she later “nonsuited” the lawsuit and then re-filed within 6 months of the non-suit but more than two years after the date of loss–in violation of the 2 year limitation period found in the policy.[i] Allstate filed a demurrer asking the court to dismiss the complaint. Plaintiff argued that the statutory “tolling” provision found in Virginia Code 8.01-229(E)(3) should apply to allow her 6 months to re-file the lawsuit in spite of...
