by KPMLAW | Sep 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Joe Smith, Esq. Edited by Rachel Riordan, Esq. It is common for claimants to request workers’ compensation benefits after being involved in motor vehicle accidents. As in all claims, the motor vehicle accident must “arise out of” the employment to be found compensable. Motor vehicle accidents that happen on public roadways may be found to arise out of the employment subject to the “actual risk test.” Mktg. Profiles, Inc. v. Hill, 17 Va. App. 431, 434-35, 437 S.E.2d 727, 729-730 (1993). Under the actual risk test, it is the claimant’s burden to prove that the accident arose from an actual risk caused by his presence on the street. Hill v. S. Tank Transp., Inc., 44 Va. App. 725, 730, 607 S.E.2d 730, 732 (2005) (citation omitted). So what happens if a claimant is injured in a motor vehicle accident after falling asleep at the wheel? This question was recently considered by the Full Commission in Norris v. ETEC Mechanical Corporation, JCN: VA00001317384 (June 25, 2018). In Norris, the claimant was involved in a motor vehicle accident while driving home in a company vehicle at the end of the day. He was 200 yards from his home when he ran off the road and struck a tree. He suffered severe injuries to multiple body parts as a result of the accident. It was undisputed that the claimant ran off the road because he fell asleep at the wheel. It was also undisputed that he was in the course of his employment because the employer provided the means of transportation to and from his home. The claimant testified that...
by KPMLAW | Sep 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by SK Stahling, Esq. Edited by Bill Pfund, Esq. You may remember that KPM’s own Bill Pfund authored this article in March 2017 discussing Virginia’s Equine Liability Act, § 3.2-6200 et seq. At that time, very few Virginia courts had analyzed the breadth or scope of the Act. Earlier this summer, Rockbridge Circuit Court applied the Act in Paz v. Layman and determined that the scope of immunity may not be as broad as the General Assembly intended. To recap, the Virginia Equine Liability Act says that no person shall be liable for an injury to or the death of another resulting from the intrinsic dangers of equine activities and that no participant shall have a claim against another person for injury or death of the participant resulting from these intrinsic dangers. The Act goes on to define those things which are included “equine activity” – this list includes “rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor,” which could arguably include horse-drawn carriage rides. Important to the most recent opinion, the Act further defines an “equine activity sponsor” as “any person or his agent who, for profit or not for profit, sponsors, organizes, or provides the facilities for an equine activity . . . and operators, instructors, and promoters of equine facilities, including stables, clubhouses, ponyride strings, fairs, and arenas where the activity is held.” In Paz v. Layman, the plaintiffs allege personal injury as a result of a carriage trip gone haywire. Allegedly, an employee of the Virginia Horse & Carriage Co., which...
by KPMLAW | Sep 18, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. There are certain considerations when dealing with a case that has joint tortfeasors as co-defendants. Joint tortfeasors are two or more persons whose negligence in a single accident or event causes damages to another person. Often such a situation occurs when a plaintiff injured in a multi-vehicle car accident where there is a disagreement as to the cause of the accident. While not mandatory, a plaintiff does have the option of suing all joint tortfeasors in a single action, as co-defendants. If, however, a plaintiff only files against one joint tortfeasor, that named joint tortfeasor then has the option of bringing into the suit any and all additional tortfeasors as third-party defendants. Regardless of how plaintiff choses to bring suit, joint tortfeasors are held jointly and severally liable for damages. This means that each tortfeasor could be responsible for the entire amount of the judgment against all joint tortfeasors. Because joint tortfeasors are held jointly and severally liable, there is also a right to contribution among tortfeasors. Contribution is a common law concept that has roots in equitable principles. In this context, it means that if one joint tortfeasor has been sued and has been made to pay a certain sum to plaintiff, then that tortfeasor may sue other tortfeasors who may also be liable to the plaintiff in order to recover some of the money paid. For example, if a plaintiff were to bring suit against only one tortfeasor, Tortfeasor #1, and Tortfeasor #1 is found to be liable to the plaintiff, Tortfeasor #1 can then bring suit...
by KPMLAW | Aug 27, 2018 | KPMBlog, News, Profiles, Uncategorized
Have you ever noticed that successful people are seldom successful at only one thing? Successful people tend to have character attributes that translate across disciplines to allow for success in multiple arenas. When considering attorneys to join the KPM team, activities outside the law are just as important as those credentials evident in a legal career resume. KPM is proud of the team members who are marathon runners, celebrated opera singers, competitive cyclists, and globally-ranked Ironmen. The tenacity these individuals show in these personal pursuits tends to be every bit as evident in their legal practice. Consider KPM’s Southwest Virginia office’s Matt Liller. Matt is a successful attorney respected by peers, clients, and opposing counsel, working hard to build his practice in Virginia and West Virginia. But Matt works equally hard at his bodybuilding practice – and the practice of the law and bodybuilding indeed have a lot in common. Matt begins most weekdays by 4:00 AM to get in a workout and two meals before getting to the office. Alongside the legal pads and pens, you’ll always find a protein bar in his briefcase at any deposition to squeeze in a meal if necessary. He has taken note that in both bodybuilding and legal practice the biggest differences are usually made when nobody is watching. Matt says, “The hard work behind the scenes allows you to shine when the lights are on.” Matt prides himself in being cordial and professional, but when the inevitable times come to be stern or take a hard stand for a client, he’s found that his muscular stature can help get his point...
by kpmAdmin | Aug 21, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Lee Hoyle, Esq. Edited by Brian Cafritz, Esq. The first and often most important fight in most civil cases is where the case will be litigated. Plaintiffs generally prefer state court, while defendants often prefer federal court. A defendant’s ability to remove a state court action to federal court can greatly impact the litigation as a whole. For most cases involving retailers and restaurants, the most common way for a defendant to assert federal jurisdiction is Diversity of Citizenship. If the plaintiff and defendant are citizens of different states (and the claim is over $75,000), the defendant can remove a case filed in state court to federal court. However, when plaintiffs seek to prevent their case from being removed to Federal Court, they will often name an employee who is a citizen of the forum state as a second defendant. This is known as the forum defendant rule. 28 USC 1441(b)(2) provides that, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 1332(a) includes diversity jurisdiction based on citizenship of different states and citizenship of foreign states. Under this rule, a Maryland Plaintiff may sue a Georgia company and a Virginia employee in a Virginia Court. In this instance, even though the plaintiff and both defendants are all from different states, the case is not removable to federal court because the individual employee is a citizen of the state...
by kpmAdmin | Aug 16, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by Willian J. Pfund, Esq. In a product liability case tried this year in Roanoke City Circuit Court, the trial judge dismissed a 4.2 million verdict for a plaintiff upon post-trial motions, finding that the evidence established contributory negligence as a matter of law. On appeal, the Supreme Court of Virginia affirmed the dismissal, but it found in favor of the defendant on the alternative basis that the Estate failed to establish negligent design as a matter of law. In Evans v. NACCO Materials Handling Group, Inc., 295 Va. 235 (2018), the Estate of a paper plant worker filed suit against the manufacturer of a lift truck after the worker was crushed and killed by the lift truck he had been operating. The deceased worker’s lift truck got stuck between a dock plate and the edge of a trailer he had been loading. He and a co-worker attached a chain to his truck so it could be pulled out by the other lift truck. He applied the parking brake and turned the engine off, but apparently other workers had loosened the brake. The truck was on an incline, and the noise in the plant prevented him from hearing warnings that the truck was rolling towards him. The alarm on the truck did not sound, and chocks were not placed under the wheels. While the deceased worker had received some training on how to operate the truck, he was never certified; and federal law required such certification. The Estate claimed that the parking brake on the lift truck was negligently designed. It also...
