by KPMLAW | Mar 8, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. In Virginia, by statute, Plaintiff has a right to one nonsuit, or voluntary dismissal, as a matter of right. You can read more about the procedure and rules surrounding a nonsuit here. While a nonsuit is a very important vehicle for Plaintiff to correct defects in their case, it does not shield Plaintiff from a pending motion for sanctions. The Supreme Court of Virginia has held that a trial judge must still hear and decide a motion for sanctions that is pending against Plaintiff, even if Plaintiff files and receives a nonsuit. Williamsburg Peking Corp. v. Xianchin Kong, 270 Va. 350 (2005). In the case of Williamsburg Peking Corp. v. Xianchin Kong, the Supreme Court held that the trial court should have considered the pending motion for sanctions against Plaintiff even after the trial court granted Plaintiff’s motion for nonsuit and entered an order nonsuiting the matter. Id. In that case, a pro se Plaintiff had alleged that Williamsburg Peking Corp. ("Peking") improperly terminated her employment as a waitress. Id. at 352. Plaintiff did not prosecute her case for one year and then filed numerous discovery requests and motions which Peking contended were "inordinately voluminous" and "redundant." Id. Peking responded to the requests in good faith, to which Plaintiff responded with four separate letters objecting to Peking's responses. Id. at 352-353. Peking filed a motion for a protective order, which was granted by the trial court. Id. at 353. Peking then filed a motion for sanctions to recover the more than $16,000 in costs and fees it incurred...
by KPMLAW | Mar 7, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Strobo, Esq. Edited by Claire C. Carr, Esq. In evaluating coverage for a general or subcontractor, it is important to understand not only what is covered by your liability policy, but also when coverage is triggered. The type of coverage will affect when coverage is triggered, and thus affect the types of damages that are covered. Liability insurance policies typically come in one of two forms: claims-made or occurrence-based. As the name suggests, a claims-made policy provides coverage for claims made during the policy period. On the other hand, an occurrence-based policy provides coverage for damage caused by an “occurrence” during the policy period, regardless of when the claim is actually made. Of the two, an occurrence-based policy offers highly valued long-term protection. As an “occurrence” is typically defined by liability insurance policies as an “accident” and an occurrence-based policy provides coverage for damage caused by an “occurrence”, it is easy to assume that coverage is based on when the accident causing the damage occurred. Indeed, a subcontractor who maintains such a policy for a construction project may think that any damage caused by the work it performed during the policy period would be covered, even if the damage actually occurred years after the policy period had expired. To the contrary, an occurrence-based policy insures only against damage occurring during the policy period, not future damage stemming from an act that occurred during the policy period. In many cases, damage occurs simultaneously or shortly after the act that causes the damage. However, in cases where it is unclear when the damage occurred, courts across the nation...
by KPMLAW | Jan 15, 2020 | KPMBlog, News, Profiles, Uncategorized
By Brian Cafritz, Esq. When claims are made against your company, one of the quickest ways to clear that loss from your company’s books is to transfer the risk to a third party. A good Risk Transfer Plan can not only remove the risk of indemnity, but it can also prevent expensive litigation costs and attorney’s fees. Indeed, a well-planned and firmly executed Risk Transfer Program can change the internal perceptions of the risk management and claims management departments. By taking a few simple steps, your risk management strategies will create reduce the number of pending claims and create a flow of incoming money, rather than being seen solely as a source of outgoing payments. Key Principles of the Risk Transfer Program In order to compile a useful Risk Transfer Program, one must understand a few key principles regarding the available theories behind Risk Transfer: Contribution: The right of one tortfeasor to get reimbursement or payment from another tortfeasor to equally or proportionally share the amount owed to a Plaintiff. Contractual Indemnity: A promise in a contract to pay full amounts owed by another. The scope and breadth of the obligation are determined by the language of the contract, but it can often be limited by state laws depending on a state’s public policies. It is common to see a duty of defense attached to the duty to indemnify, but it must be expressly stated in the contract for it to exist. Common Law/Equitable Indemnity: If no indemnity contract is available, Equitable Indemnity exists to shift liability from one who is only passively liable to the...
by KPMLAW | Jan 15, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by Claire C. Carr. For the first time, the Supreme Court of Virginia has ruled on whether the collateral source rule applies in contract cases. The collateral source rule provides that compensation or indemnity received by a tort victim from a source other than the tortfeasor may not be applied as a credit against the amount of damages owed by the tortfeasor. This rule has been consistently recognized in tort cases in Virginia. It has also been applied to cases involving social security benefits, public and private pension payments, unemployment benefits, workers’ compensation benefits, and vacation and sick leave allowances. In Dominion Res., Inc. v Alstom Power, Inc., 825 S.E. 2d 757, 297 Va. 262 (2019), the court held that the collateral source rule does apply to breach of contract actions, where a plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the defendant. The court noted, however, that whether the collateral source rule applies should be determined on a case by case basis. In Dominion Resources, a company called Alstom Power, Inc. performed services at a power plant owned by Dominion Resources. These services were governed by a contract which required Alstom to obtain two separate policies, an aggregate limit policy and an excess policy. In addition to the two policies held by Alstom, Dominion Resources also had an excess policy with Associates Electric & Gas Insurance Services (“AEGIS”). As a result of a boiler accident at the plant, three workers died and two others were injured. The workers and their estates sued Dominion...
by KPMLAW | Jan 14, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. We discussed coverage concerns associated with sharing homes and cars. An even bigger headache may be the e-scooter. They are everywhere, usually in your way. E-scooters fly along sidewalks and on the roads and end up scattered about town, usually where you want to walk or park. Often they dodge around you as you walk or drive, or you dodge them. Accidents are inevitable. As the latest and greatest trend for commuters and those that just do not want to walk clutters the landscape of cities and college campuses, a significant problem exists that not many people seemed to have thought about: does the operator of the e-scooter have liability coverage in the event of an accident? In rental situations, many assume that the rental itself will provide coverage, meaning Bird, Lime or Bolt or one of the rental companies provides insurance to the operator. This does not appear to be the case. For example, the Bird rental agreement is titled “Bird Rental Agreement, Waiver of Liability and Release.” In large, bold print the agreement warns that “YOUR AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING OR DAMAGE TO THIS VEHICLE. TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR AUTOMOTIVE INSURANCE COMPANY OR AGENT.” Damage to the scooter may be the least of the worries of an operator involved in an accident. Section 15 of the Bird rental agreement, titled “Releases; Disclaimers; Assumption of Risk”, requires the operator (called the “Rider”) to indemnify and hold harmless Bird for any incident that arises out of the use of the scooter. The...
by KPMLAW | Oct 28, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. The US District Court in Alexandria recently found a carrier acted in bad faith in the case of South Boston Energy, LLC v. Hartford Steam Boiler Specialty Insurance. In this case, the insured, a power plant, suffered a loss to a large turbine. A piece of metal got inside the turbine and forced the insured to disassemble the turbine. The insured reported the loss to its insurer. Initially, the insured reported an estimate of repair of $450,000. The insurer’s adjuster responded that the loss did not exceed the power plant’s deductible. The power plant responded quickly, listing costs far in excess of the deductible associated with the disassembly, removal, repair and re-assembly. This response gave an estimate total cost of over $1 million. The carrier hired an engineer to go onsite and inspect the turbine. This engineer found that the damage reported came from covered losses. He also felt that the insured’s cost estimates could be audited and lowered some. Unsatisfied, the carrier hired two other engineers. Each found different causes of loss for the majority of turbine damage. However, neither engineer actually physically inspected the turbine nor had either engineer repaired turbines. Both of these engineers determined that the loss to the turbines did not meet the $500,000 policy deductible. Without further research into the insured’s estimates or obtaining other information on the damage or the cost to repair, the carrier denied coverage. After a jury held for the insured and awarded more than $770,000 in damages, the Court turned to the bad faith allegations. The Court applied the venerable test of bad...
