After an automobile accident, it can often be difficult for those involved to find a replacement vehicle. The Virginia General Assembly addressed this fact with the implementation of Va. Code Ann. § 8.01-66, which provides reimbursement to a non-at-fault party for costs associated with a temporary rental vehicle. In drafting this code section, the General Assembly clearly attempted to balance the interests of both the at- fault and innocent party. 8.01-66 allows a party who is “entitled to recover for damage to or destruction of a motor vehicle . . . to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle.” Va. Code Ann. § 8.01-66(A). The General Assembly placed a few restrictions on this avenue of damage recovery in an attempt to balance the interests of both parties to the accident. These balancing restrictions can play an important role in an individual’s ability to recover and the amount of such recovery. First, the individual seeking these damages must be “entitled to recover for damages” as a result of the accident. Though this is the first, and seemingly most basic step, it may prove difficult in practice. Because Virginia adheres to the doctrine of contributory negligence, if the party seeking damages negligently contributed to the accident in any way, he or she will be barred from recovery under § 8.01-66(A). Therefore, analyzing the facts surrounding each accident is the important first step to applying § 8.01-66(A). Second, § 8.01-66(A) requires that the costs must actually be...
Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. Last spring, I wrote an article discussing the law of punitive damages in Virginia in the civil litigation context. I focused on the issue of a defendant’s intoxication at the time of a motor vehicle accident. Under Virginia common law, intoxication does not necessarily establish any particular level of negligence, much less the heightened negligence required for a punitive damages award. Huffman v. Love, 427 S.E.2d 357, 360 (1993). Instead, it is only one factor to be considered in determining whether the entirety of the defendant’s conduct showed a conscious disregard for the safety of others. Id. There is a bevy of case law and even an entirely separate statutory framework for driving under the influence of alcohol. Marijuana intoxication, however, is more of a blank slate. When I wrote last spring, Governor Ralph Northam was in the process of proposing amendments to a bill passed by the General Assembly in February that would, among other things, make possession of up to an ounce of marijuana legal for adults over 21 years of age Now, the bill has become law. It is important to pause and discuss what’s in the new law, which deals with the substance of the issue and lays out a three-year process to legalize marijuana and create a regulatory framework for the sale of the product. The New Law (HB2312 – SB1406) Effective July 1, 2021, Virginia legalized the possession of up to an ounce of marijuana[1] for adults 21 and older, as well as the consumption of marijuana in non-public areas. The law...
Written by Gary Reinhardt, Esq. Public adjusters and their contractor allies look for potential claims. For example, they find a roof in poor condition, inspect it, and invariably find hail or wind damage. However, just as likely, the roof has damage from other causes. Despite that, the public adjuster writes up an estimate including everything wrong with the roof, be it poor installation, rot, or wear and tear. An insurer receives this estimate, hires an engineer to inspect the roof, and determines that significant parts of the public adjuster’s estimate include damages excluded from coverage by the plain language of the policy. The insurer refuses to pay for excluded damage, so the public adjuster attempts to circumvent coverage and the policy by invoking the appraisal clause. When the insurer balks at appraising the entire public adjuster estimate, asserting that coverage/excluded damage are not appraisal issues, the public adjuster responds by citing the decision of Coates v. Erie, 79 Va. Cir. 440 (Fairfax Cir. Ct. 2009). Public adjusters claim this Circuit Court decision requires all aspects of the appraisal to go to an umpire, including items the insurer deemed excluded from coverage or not covered by the policy. In the recent Winchester Circuit Court case of Craun v. Erie Insurance Company, (CL21-78), this exact scenario resulted in litigation. After Erie initially paid an insured’s claim, the insured returned several months later with a public adjuster, claiming hundreds of thousands of dollars in additional roof damage. Erie sent its engineer back out to the property to re-inspect. While giving the benefit of the doubt to some additional damage, Erie denied coverage...
Written by Nick Marrone, Esq. Edited by Bob McAdam, Esq. If you have been handling Virginia workers’ compensation claims it is likely that a claimant or their attorney has asked you to approve an FCE or an impairment rating ordered by their doctor. It is likely that such a request has resulted in a quick denial. Obtaining an FCE or an impairment rating is a litigation expense. The Commission has found that a visit to a physician for the sole purpose of proving a disability rating does not constitute medical treatment under Virginia Code § 65.2-603; and, therefore, the Insurer is not responsible. This longstanding precedent, however, appears to be over. On October 5, 2021, the Full Commission issued their Review Opinion in Kenneth Elliott v. Sam Green Vault Corporation, JCN VA00001108316 (Oct. 5, 2021). Mr. Elliott was a grave digger. On August 16, 2015, he suffered a tibia fracture when a tombstone toppled over and fell on his left leg. After going through three surgeries on May 11, 2020 his treating doctor opined that he had reached maximum medical improvement. Mr. Elliott was referred to a physical therapy facility for an FCE and impairment rating to proceed. The insurer refused to authorize the same and following a hearing the Deputy Commissioner, following precedent, agreed. The claim was denied on the basis that the referral for the FCE and impairment rating was for the sole basis of securing a disability rating and is not medical treatment for which the insurer was responsible. Mr. Elliott appealed the ruling arguing the referral was not solely to obtain a disability rating but...
Written by Randall C. Lenhart, Jr. Edited by Bill Pfund A statute of repose, like a statute of limitations, extinguishes certain legal rights if they are not brought within a specified deadline. The difference is that a statute of limitations generally begins to run when a plaintiff’s cause of action accrues while a statute of repose commences to run from the occurrence of an event that is unrelated to the accrual of a cause of action. Virginia’s statute of repose is found at Virginia Code § 8.01-250 and provides that: No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction. The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, nor to any person in actual possession and in control of the improvement as owner, tenant or otherwise at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought; rather each such action shall be brought within the time next after such injury occurs as provided in §§...
Written by Daniel Royce Edited by Bill Pfund Ask any layperson about Attorney-Client privilege and they could probably recite a general explanation about how things you tell your lawyer are secret… the legal equivalent of “What happens in Vegas stays in Vegas”. According to the Legal Information Institute at Cornell University Law School, Attorney-Client Privilege “refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.” The privilege is asserted in the face of legal demand for communications, such as in a discovery request or a demand that counsel testify. The privilege only exists when there is an attorney-client relationship. The Attorney-Client privilege is a bedrock principle of American Jurisprudence and it is therefore critical to understand how the privilege attaches, and when Attorney-Client communications are not protected. The Attorney-Client privilege is one of the oldest recognized privileges for confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Id. The Attorney-Client privilege is not absolute, and any competent attorney needs to understand its nuances. The widely accepted test for application of the privilege is discussed in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950), and states the privilege applies: “[O]nly if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of...
