by KPMLAW | May 9, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Claire Carr, Esq. Edited by Rachel Riordan, Esq. Workers compensation’ claims based on COVID-19 are on the rise. Adjusters and employers are starting to receive questions about these clams and the circumstances under which they may be compensable. This article examines COVID-19 claims as an occupational disease under the Virginia Workers’ Compensation Act and how we anticipate these claims being handled by the Virginia Workers’ Compensation Commission. When dealing with diseases, the Virginia Workers’ Compensation Act differentiates between an “Occupational Disease” and an “ordinary disease of life.” Virginia’s Occupational Disease statute, Va. Code §65.2-400(A), defines an occupational disease as “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment” (emphasis added). Under Va. Code § 65.2-400(B), to meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the disease was proximately caused by the employment; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/ employer relationship; and (6) the disease originated in a risk of employment and flowed as a direct consequence of it. The elements above are typically proven with competent medical evidence. The most obvious types of occupational disease...
by KPMLAW | May 8, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written & Edited by Janeen Koch, Esq., Kevin Kennedy, Esq. & Matt Daly, Esq. As businesses around the world suffer dramatic declines in revenue due to the pandemic, they are turning to their insurance carriers seeking coverage for business interruption losses. However, many of these claims are being denied based upon the fact that they are either not covered or specifically excluded under the terms of the insurance policy. The requirement that insureds demonstrate “direct physical damage,” coupled with the fact that many policies include a virus and bacteria exclusion, will make it difficult for business owners to obtain coverage for these losses. Consequently, legislators in many states are proposing laws to require insurance companies to retroactively provide coverage for business interruption claims even when the policies specifically exclude such coverage. New Jersey became the first state to initiate the trend of looking to rewrite business interruption coverage for COVID-19 into these policies with proposed bill A-3844. That bill would require business interruption claims to be honored by insurance carriers for any business with fewer than 100 full-time employees that had a business interruption policy as of March 9, 2020. It appears that New Jersey’s bill has stalled for now, but other states have brought forward similar proposals, including New York, Massachusetts, Pennsylvania, Michigan, and South Carolina, as well as the District of Columbia. The Federal government has also drafted legislation aimed at protecting small businesses from losses sustained as a result of virus-related closures. H.R. 6494 – Business Interruption Insurance Coverage Act of 2020 – was introduced on April 14, 2020. The bill, which has bipartisan support, would...
by KPMLAW | May 7, 2020 | Court, Covid, KPMBlog, News, Profiles
The Supreme Court of Virginia has issued a Fourth Order Modifying and Extending the Declaration of Judicial Emergency in Response to COVID-19. The full order can be viewed here. In all civil cases, any tolling of deadlines and obligations arising out of Part Four of the Rules of the Supreme Court of Virginia shall terminate as of the effective date of this order (May 18, 2020). All discovery issued with a deadline to respond during the judicial emergency shall be due within twenty-one (21) days of the effective date of this Order (May18, 2020). Litigants are encouraged to resolve as many pretrial matters as possible with or without the assistance of the courts. All courts are authorized to accept pleadings, orders and other documents that are electronically signed, including those where the electronic signature is accomplished by scanning. Continuances and excuses for failure to appear shall be liberally granted for any cause resulting from the impact of the ongoing COVID-19 crisis. Effective immediately, it is ORDERED that all civil and criminal jury trials are suspended and shall be continued until further notice and no jury trials shall occur in...
by KPMLAW | Apr 28, 2020 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Kate Adams, Esq. Edited by Bill Pfund, Esq. With the ever changing world we live in testimony in person is moving toward becoming a thing of the past for certain non-critical witnesses. A new rule that went into effect on March 15 addresses the need to embrace technology and its use in our civil trials. Virginia Supreme Court Rule 1:27 provides guidance to the court and litigants as to when and what witnesses should be permitted to testify through an audiovisual link as opposed to in person at trials and hearings. The discretion to allow testimony to be presented in this manner and what witnesses it applies to, as with most rules is left to the court’s discretion. However, the rule contains some strong language directing the court that certain non-critical lay witnesses should be permitted to testify by using a live audio visual link. The new rule states that the court “should” enter an order permitting live testimony by means of audiovisual technology in this following circumstances. Upon consent of all parties If the lay witnesses is more than 100 miles from the hearing location If the witnesses is a superintendent of a hospital for the insane more than 30 miles from the place of trial, If the witness is a physician, surgeon, dentist, chiropractor, registered nurse, physician’s assistant or nurse practitioner who, in the regular course of his or her profession, treated or examined any party to the proceeding, If the witness is in any public office or service the duties of which prevent his attending court Under this new rule parties and expert witnesses...
by KPMLAW | Mar 30, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Bob McAdam, Esq. Edited by Claire C. Carr, Esq. The Court of Appeals of Virginia recently decided a case with potentially far-reaching effects. In Merck & Co. v. Vincent, COA Record No. 0424-19-1, (01/14/2020) the Court explained some of the major pitfalls of the doctrine of compensable consequences. First, what is a “compensable consequence?” The compensable consequence doctrine applies “when the injury does not arise on the day of the accident, but instead develops as a direct consequence of an initial injury.” Under the doctrine of compensable consequences, an employer's liability for an industrial injury extends to “all the medical consequences and sequelae that flow from the primary injury.” The employer is responsible for a natural consequence that flows from the original injury, if it is a direct and natural result of the primary injury. In Vincent, the Court of Appeals affirmed the Full Commission’s affirmation of a deputy commissioner’s award of permanent total disability benefits to a claimant, who lost the use of his left arm while working for the employer and subsequently lost the use of his leg as a consequence of the effects of medication taken for the arm injury—because the compensable consequences of the leg injury arose “in the same accident” as the arm injury for the purpose of Va. Code Ann. § 65.2-503(C). In 2009, the claimant injured his left arm and neck while working for the employer. The deputy commissioner awarded temporary total disability, and the Commission affirmed. The employer did not appeal that award. The claimant underwent surgery to treat these injuries. In 2011, he became dizzy and fell...
by KPMLAW | Mar 8, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Matt Daly, Esq. Edited by Claire C. Carr, Esq. Ayttorneys and claims examiners handling construction litigation know that every construction case starts with coverage issues. In claims against subcontractors, perhaps the most commonly encountered issue is the interplay between an “occurrence” and the “your work” exclusion. Subcontractors facing a claim are often surprised to learn what may and may not be covered when this exclusion comes into play. A recent opinion from the United States District Court for the Western District of Virginia provides a solid blueprint for analyzing this issue. Western World Insurance Company v. Air Tech, Inc. U.S.D.C., West. Dist. Va., Case No. 7:17-CV-518 (Roanoke) involved an insurance dispute between Western World and its insured, Air Tech. The dispute arose after Air Tech was sued for breach of contract and negligence arising from a subcontract agreement that Air Tech entered into with Hall’s Construction Corp. Under the subcontract, Air Tech agreed to supply a Solvent Recovery Chiller for a project Hall’s had undertaken. Air Tech supplied the chiller and was alleged to have been involved in the installation as well. When the chiller failed and required a replacement, Hall’s sued Air Tech for breach of the subcontract and negligence based on: the failure to properly provide the materials and equipment necessary to install the chiller; failure of the manuals provided to accurately describe the equipment and components and required electrical connections; failure of the manuals to accurately describe the work to be performed; and failure to correctly install the chiller. The Western World policy provided coverage for property damage only if caused by an “occurrence.”...
