UPDATE: Just When You Thought You Knew Everything About Pay and Quit Pursuant 38.2-2206 Here Comes the General Assembly Again!

Written by Daniel Royce, Esq. Edited by Bill Pfund, Esq. In 2015, the Virginia General Assembly enacted significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impacted Virginia Code Section 38.2-2206 and added a new statute at 8.01-66.1:1.  The stated purpose of these changes was to expedite uninsured and underinsured motorist payments.  These changes went into effect for policies issued or renewed on or after January 1, 2016. In short, the 2016 revision represented a sea change in how UIM claims would be handled with significant changes impacting both liability and underinsured motorist carriers in the following ways: The liability carrier became able to tender policy limits in exchange for complete settlement and release of the defendant/tortfeasor and the liability carrier. Acceptance of the liability carrier’s limits by the injured party extinguished the primary liability carrier’s duty to defend. The duty being extinguished upon payment of the liability limits (not merely acceptance of the offer). A settlement under these provisions extinguished the UIM carrier’s right of subrogation against underinsured defendant, and Upon being released, the defendant/tortfeasor has statutory duties to reasonably cooperate with the UIM carrier in its defense of the case. 2016 Changes to Virginia Code 38.2-2206 The statute governing uninsured and underinsured motorist coverage is located in Virginia Code Section 38.2-2206. Prior to the 2016 revision, the liability carrier was permitted to pay limits in cases where the injured person had UIM coverage. However, such payment did not secure release of the liability carrier or it’s insured. Significantly, the liability carrier retained the duty...

Summary Judgment Is Becoming More Viable in Virginia

Written by Kate Adams, Esq. Edited by Bill Pfund, Esq.  Summary judgment in Virginia state courts, unfortunately, has been akin to finding a four leaf clover, we all know it exists but it is rarely ever granted. However, with the passage of Senate Bill 1486 and a recent decision from Judge David Bernhard of Fairfax Circuit Court, the constraints regarding the type of evidence a court may consider when hearing such motions  is expanding, making summary judgment more attainable. As reported in the KPM April 2019 Newsletter, Senate Bill 1486 has passed and went into effect on July 1, 2019 which expands the provisions of Virginia Code §8.01-420 and provides that “discovery depositions under Rule 4:5 and affidavits may be used in support of or opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” Although this change is narrowly tailored to business entities and cases where the amount at issue is over $50,000, this may pave the way for more opportunities to obtain summary judgment in Virginia. A May 24, 2019 ruling by Judge Bernhard addressed the type of evidence a court can consider when ruling on a motion for summary judgment. In HCP Properties-Fair Oaks of Fairfax VA LLC v. County of Fairfax, Judge Bernhard considered “whether a party can use a deposition of a Corporate Designee of an adverse party in support of its “Plea in Bar” seeking the dismissal of an action, in light of the stricture of Virginia Code §8.01-420 on the use of depositions...

Virginia’s Sovereign Immunity Doctrine, Emergency Vehicles, and Uninsured Motorist Coverage

Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. What is Sovereign Immunity? The doctrine of sovereign immunity is “a government’s immunity from being sued in its own courts without its consent.”  Black’s Law Dictionary, 4th Pocket Ed.: “Sovereign Immunity”.  The doctrine is as old as American law itself.  Like many of the initial common law doctrines in America’s jurisprudence, the doctrine of sovereign immunity grew out of British law.  The famous 18th century English legal scholar, William Blackstone, described the reasoning behind the doctrine when he said “the law also ascribes to the king in his political capacity, absolute perfection. . . The king can do no wrong . . . The king moreover, is not only incapable of doing wrong, but even of thinking wrong.”  1 William Blackstone, Commentaries on the Law of England 245 (1809) (emphasis in original). Over the generations, the absolute immunity ascribed to the king by Blackstone has slowly eroded.  For example, the Virginia General Assembly waived sovereign immunity in certain situations when it passed the Virginia Tort Claim Act—Va. Code Ann. §8.01-195.3—which allows citizens to directly sue the Commonwealth.  Despite the gradual erosion of the doctrine, “sovereign immunity is ‘alive and well’ in Virginia.”  Messina v. Burden, 228 Va. 301 (1984). Governmental Employees and Sovereign Immunity As noted by the Virginia Supreme Court, “The Commonwealth of Virginia functions only through its elected and appointed officials and its employees” and “[i]f because of the threat of litigation . . . they cannot act, or refuse to act, the state [itself] also ceases to act.”  James v. Jane, 221 Va. 43 (1980).  This...

Swimming Pool Liability Issues

Written by JH Revere, Esq. Summer is in swing and a review of swimming pool liability issues seems in order.  First the statutory law on the subject: Virginia Code § 15.2-921 states in part: For the purposes of this section: “Swimming pool” includes any outdoor man-made structure constructed from material other than natural earth or soil designed or used to hold water for the purpose of providing a swimming or bathing place for any person or any such structure for the purpose of impounding water therein to a depth of more than two feet. “Fence” means a close type vertical barrier not less than four feet in height above ground surface.  A woven steel wire, chain link, picket or solid board type fence or a fence of similar construction which will prevent the smallest of children from getting through shall be construed as within this definition. Any locality may adopt ordinances making it unlawful for any person to construct, maintain, use, possess or control any pool on any property in such locality, without having a fence completely around such swimming pool. .              .              . Any such ordinance may be made applicable to swimming pools constructed before, as well as those constructed after, the adoption thereof. Virtually all localities in Virginia have adopted a swimming pool ordinance requiring fencing (at least four [4] feet in height) with a lockable gate.  The failure to comply with a local ordinance would be construed as negligence per se under most circumstances (drowned minor). Further the Virginia Code permits local municipalities to “regulate and inspect the operation, maintenance, and use of public swimming pools,...

Coming Soon: Changes to a Statute Near You

Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. Many of us authorize medical treatment during the investigation of a claim, when the injured worker is unrepresented, and when no claim has been filed in an effort to limit exposure without a formal award being entered.  However, your ability to do this without potential longstanding effect is soon coming to an end…As of July 1, 2019, any medical treatment authorized and paid for BEYOND a six month period, will impact the statute of limitations for which an injured worker has to file a claim and will act as a basis for the tolling of the statute of limitations. Statute of Limitations:  Virginia Code § 65.2-601 provides that the “right to compensation under this title shall be forever barred, unless a claim be filed with the Commission within two years after the accident.” This requirement is jurisdictional, and the Commission has no authority to adjudicate or award benefits for a claim not filed within that two-year period. See Barksdale v. H. O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977). The voluntary payment of medical expenses did not toll the statute of limitations. See Stuart Circle Hospital v. Alderson, 223 Va. 205, 288 S.E.2d 445 (1982). The exceptions to the statute of limitations were limited pursuant to Va. Code § 65.2-601. In Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284-85, 623 S.E.2d 433, 437 (2005), the Court of Appeals explained: There are only three exceptions to timely filing under the statute of limitations. (1) Code § 65.2-602 provides for tolling of the...

Fraud in the Insurance Industry

Written by Porter Peery, Esq. Edited by Bill Pfund, Esq. According  to insurance industry estimates fraud accounts for approximately 10% of the property/casualty insurance incurred losses and adjustment expenses each year (1).  Based on this estimate, between 2013-2017 property and casualty fraud totaled about $30 billion each year. Automobile accident fraud is one of the most widespread and lucrative fraud schemes nationally. The National Insurance Crime Bureau receives over 60,000 questionable claims each year half of which involve auto accidents (2). Of note, these auto accident schemes are becoming more violent, especially in large metropolitan areas, and often involve large organized rings. Closer to home, the Virginia State Police Insurance Fraud Program 2018 Annual Report indicates that $13,566,013 in fraudulent insurance claims were attempted in Virginia in 2018, a 19% increase from 2017. Disturbingly $3,665,817 in fraudulent insurance claims were actually collected in 2018, a 48% increase from 2017. Since insurance fraud is constantly evolving in the present high tech environment, the approach to detect and prevent fraud must regularly change to keep pace.  Insurers have prioritized combating fraud. Approximately 40% of insurers polled by the Coalition Against Insurance Fraud and SAS Institute in 2019 said their technology budgets will be larger. About 90% of the companies which responded said “they use technology primarily to detect claims fraud”, a significant increase from 2016…(3). Insurers are now able to use “predictive and entity analytics” as new information is added which improves detection capabilities for fraudulent activity (4). At the end of the day, however, any flagged accounts must be reviewed by a well-trained claims’ fraud professional. Most insurance companies now have...