The Importance of Asking if a Plaintiff has Filed for a Bankruptcy in Discovery – Part II

The Importance of Asking if a Plaintiff has Filed for a Bankruptcy in Discovery – Part II

Written by Chris Flynn, Esq. Edited by Bill Pfund, Esq. An earlier article addressed two reasons why asking if a plaintiff has filed for bankruptcy during discovery is an overlooked but important question. Those reasons are to raise the issue of the admissibility of the debtor-plaintiff’s medical bills as well as to challenge the standing of that debtor-plaintiff in the non-bankruptcy matter. The question of standing however is exclusive to Chapter 7 debtor-plaintiffs (see Wilson v. Dollar General Corp., 717 F3 337, 343-44 (4th Cir. 2013)). Therefore, aside from challenging the admissibility of the debtor-plaintiff’s medical bills, is there any challenge that can be raised when a plaintiff in a non-bankruptcy matter has filed a Chapter 13 bankruptcy case? The answer is, yes. Judicial estoppel is a legal defense used for early dismissal of cases brought by bankrupt plaintiffs. In a bankruptcy, judicial estoppel applies if a debtor-plaintiff omits any claim that the plaintiff knew of at the time of filing for bankruptcy or learned of while the bankruptcy case was pending. If a defendant succeeds in establishing judicial estoppel, the plaintiff is barred from pursuing a case regardless of the claim’s merits. The Fourth Circuit has held that judicial estoppel applies when: (1) the party to be estopped is advancing an assertion that is inconsistent with a position taken during previous litigation, (2) the position is one of fact instead of law; (3) the prior position was accepted by the court in the first proceeding; and (4) the party to be estopped has acted intentionally and not inadvertently. Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th...
Nebraska School District to Pay One Million Dollars to Settle Death Claim of Student who Died  After Eating Teacher’s Snack

Nebraska School District to Pay One Million Dollars to Settle Death Claim of Student who Died After Eating Teacher’s Snack

Public Schools across the nation are entrusted with our children to educate, feed, nurture and provide the tools necessary for our next generation to lead fulfilling lives.  As part of these responsibilities, schools must have robust precautions in place to ensure that students with allergies, and specifically food allergies, have policies and procedures in place to prevent incidents that could have dire consequences.  Having a robust and specific Risk Management plan in place to prevent and deal with these situations is of the utmost importance. Facts and Background A Nebraska school district has agreed to pay $1 million to the family of a teen who died of anaphylaxis in May 2022.  A 14-year-old student at Liberty Middle School in Papillion, Nebraska, was given a granola bar by his teacher.  Unfortunately, the bar contained peanuts and the student had a peanut allergy.  Tragically, the student later died in hospital following a severe allergic reaction. During its March meeting, the Papillion La Vista Community school board received notification of settlement with the student’s parents related to the wrongful death claim. The school board’s liability insurance carrier has agreed to pay a lump sum settlement the the family of the deceased student. In exchange for the settlement, the student’s parents have agreed to release the school district from liability in connection with the unfortunate incident. The settlement was reached through a Nebraska probate court process, not a civil lawsuit. As a result, we have relatively little information about the claims and defenses of the respective parties. What little information is known was obtained through social media postings of the family. According to...
Uh oh! Settlement Proceeds paid…then Claimant backs out…what to do now!

Uh oh! Settlement Proceeds paid…then Claimant backs out…what to do now!

You have just sent a claimant a check for $100,000 as consideration for a full and final settlement.  The claimant then files a motion to vacate the settlement, but he has already cashed the check.  What should you do? The Virginia Workers’ Compensation Commission is very liberal when it comes to backing out of settlements. Either side has up to thirty (30) days after the settlement has been approved by the Commission to back out without penalty. The most common reason an insurer might back out of a settlement is that it discovers fraud. For example, the insurer might find out that the claimant is working elsewhere and did not report that income. Or, surveillance might reveal that the claimant is not really injured. The most common reason why a claimant might back out of a settlement is that the claimant discovers that her injury is much worse than she thought, and she will need expensive surgery in the future, or that the recent surgery failed. In Radtz v. Crossroads Fuel Service Inc. (03/16/2023) the Full Commission addressed the issue of how to handle a matter when the settlement proceeds have been dispersed but the claimant wants to back out of the settlement. In Radtz, the parties settled the claim.  The settlement was approved by the Commission on 01/24/2023. The claimant timely moved to vacate the settlement because he needed additional surgery. The Commission gave the claimant 60 days to remit the settlement proceeds to the insurer.  If the proceeds were not returned, the settlement would not be vacated. Practice Pointers: If you settle a matter favorably, pay the...
Liability for Contact Sports Injuries: Virginia

Liability for Contact Sports Injuries: Virginia

In Virginia, “a person’s voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant’s alleged negligence in causing the injury.”  Arndt v. Russillo, 231 Va. 328, 332, 343 S.E.2d 84, 86 (1986).  When it comes to contact sports, courts from across the country have found that a player assumes the risk of injury inherent to the sport.  For Example see Balthazor v. Little League Baseball, Inc., 62 Cal. App. 4th 47, 49, 72 Cal. Rptr. 2d 337, 339 (1998); Crace v. Kent State Univ., 185 Ohio App. 3d 534, 539 (2009); Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 522-523, 984 P.2d 448, 450 (1999); and Morgan v. State, 90 N.Y.2d 471, 482-483, 685 N.E.2d 202, 206 (1997).  When a participant steps onto the field, court, or other playing surface, they voluntarily accept the risks of injury that come with that sport.  This includes the risk of injury caused by another participant due to the other player’s careless conduct, “because in the heat of an active sporting event a participant’s normal energetic conduct often includes accidentally careless behavior.”  McGarry v. Sax, 158 Cal. App. 4th 983, 999 (2008). The rules governing liability for injuries sustained in contact sports are not as clear in Virginia as in other states.  The Virginia Supreme Court has not affirmatively ruled on a player’s assumption of risk in the context of contact sports, but the case law of Virginia tends to support the general rule applied in other states—that a participant voluntarily assumes risks inherent to the sport.  The Virginia Supreme Court...
Lessons Learned from a Failed Workers’ Compensation Claim:  The Importance of Gathering Specific Facts

Lessons Learned from a Failed Workers’ Compensation Claim: The Importance of Gathering Specific Facts

Written by Bob McAdam, Esq. Edited by Jessica Gorman, Esq.   For a claimant to prove a compensable injury by accident the claimant must prove that he has sustained an injury by accident arising out of and in the course of his employment. A case decided by the Full Commission in March 2023 illustrates why it is important to know as many facts as possible before making a decision regarding a claim. In O’Brien v. Northern Va. Community College, JCN: VA00001876256 (03/03/2023) illustrates the point. The accident occurred while the claimant was walking from her third-floor office to attend a meeting on the first floor of the employer’s medical education building. Finding her way to the meeting blocked by a locked door, the claimant attempted an alternative route by backtracking through the second floor. While walking down a second-floor hallway, the claimant encountered a co-worker. As she turned to address the co-worker, the claimant fell. There were three separate arguments made to support the claimant’s claim, all of which failed before the Deputy Commissioner and, in a 2-1 decision of the Full Commission. The Claimant’s shoe stuck to the floor. The Claimant was distracted when she turned to address a co-worker. The Claimant was holding a computer and papers in her left arm contributed to the awkwardness of the fall. You would think, that based on those three bullet points, the claimant would prevail. However, she did not. This case does not suggest anything other than the “arising out of “ prong is extremely fact specific. When taking the statement of a claimant it is very important to get...
Coverage Questions Arise for Live-In Partners on Homeowners’ and Tenant Policies: Examining the Impact of COVID-19 on Insurance Policy Definitions and Coverage”

Coverage Questions Arise for Live-In Partners on Homeowners’ and Tenant Policies: Examining the Impact of COVID-19 on Insurance Policy Definitions and Coverage”

Written by Gary Reinhardt, Esq. As we enter the “endemic” phase of COVID-19, many things changed in our society.  For instance, after a couple of years of being isolated, it seems people want to gather more.  Further, with the multi-year moratorium on indoor weddings caused by the pandemic, the rush to book those venues created a logjam for the foreseeable future, pushing back planned matrimonial bliss.  These situations result in even more living together arrangements. As for insurance, how does this situation impact who qualifies as an “insured” in a homeowners’ or tenant policy and along with that, who has coverage?  For example, consider an insured with a live-in girlfriend.  Suppose she is not on a lease or deed (and moved in after application, to avoid the easy argument of rate evasion).  An insured may attempt coverage for his girlfriend in two aspects, either by claiming she is “family” or a “family member” or invoking the “personal property of others” clause. Initially, the typical policy requires for coverage that “The personal property must be owned or used by you, or your family members who reside with you . . .”    What happens when a person, not the named insured (“you”), suffers a loss of his/her exclusive property like clothes or some sort of family heirloom? Many property insurance policies do not define “family member.”  However, auto policies, like the standard specimen policy posted to its website by the Virginia Bureau of Insurance, does: “Family member” means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. Likewise,...