by kpmAdmin | Mar 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written By Joseph Smith, Esq. Edited by Rachel Riordan, Esq. Most workers’ compensation claims are claims that involve bodily injury. However, certain diseases can also be covered under workers’ compensation. These “occupational disease” claims are defined in Va. Code § 65.2-400 and require that a claimant prove the disease arose out of the employment based upon several factors that establish the employment caused the claimant to contract the disease, rather than an exposure where the general public was equally at risk. Occupational disease claims must be proven by a preponderance of the evidence. Additionally, certain “ordinary disease of life” claims, which includes exposure to diseases to which the public is exposed outside of the employment, can also be compensable occupational diseases pursuant to Va. Code § 65.2-401. However, ordinary disease of life claims have to be proven by clear and convincing evidence, which is a higher burden than the preponderance of the evidence required for occupational disease claims. Claims for post-traumatic stress disorder (PTSD) have become commonplace and are difficult to defend, as the symptoms can be quite subjective in nature. PTSD can be covered as either an occupational disease or an ordinary disease of life and the Commission must determine whether the PTSD was caused by the employment or an outside exposure. In the context of occupational disease claims, the Commission has traditionally defined “the employment” not as an employer-employee relationship but instead as “work or process which the employee has been engaged.” Pocahontas Fuel Co. v. Godbey, 192 VA. 845, 852, 66 S.E.2d 859, 864 (1951). The Court of Appeals recently addressed this issue in City...
by kpmAdmin | Mar 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Lee Hoyle, Esq. Bankruptcy law and civil litigation rarely mix. When bankruptcy issues arise in civil lawsuits, it generally means that something has gone terribly wrong for one side or the other. If the defendant is invoking the automatic stay, pausing the civil litigation while a bankruptcy case is administered, the civil defendant probably has bigger problems than the lawsuit. Along the same lines, if a civil plaintiff’s bankruptcy pops up as an issue in the civil case, the civil case may be in jeopardy of dismissal. The reason why having bankruptcy enter a civil claim at all is so dangerous for the plaintiff is that it probably means that the plaintiff messed something up. When a person (or company for that matter) declares bankruptcy, all of their assets become part of the bankruptcy estate. If the debtor wants to remove an asset from the bankruptcy estate, they need to disclose the item and have it exempted or otherwise taken out of the estate. In Virginia, civil lawsuits are exempt from creditors in the bankruptcy process. As long as the debtor discloses the claim as an asset, the bankruptcy court should enter an order exempting the claim from the estate. The Virginia Supreme Court has twice affirmed dismissals of civil claims asserted by debtors in bankruptcy. In Kocher v. Campbell, 282 Va. 113, 712 S.E.2d 477 (2011), the civil plaintiff filed for bankruptcy and received a discharge after the accident happened but before he filed his lawsuit. He did not disclose the existence of the potential civil claim to the bankruptcy court until after he filed suit. ...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. Almost every state has certain rules or procedures that are unique to that jurisdiction. In Virginia, one of our legal oddities is the existence and breadth of the voluntary nonsuit. A voluntary nonsuit in state court is a procedural right to voluntarily dismiss the case, but it is created by statute. Va. Code Ann. § 8.01-380. Although it is a voluntary dismissal, a nonsuit does not operate the same way as a voluntary dismissal in federal court. It allows the Plaintiff to correct a flaw in her case and reset the matter to the start in a future filing, with no real penalty or hardship. The Supreme Court of Virginia has described a voluntary nonsuit as a “powerful tactical weapon in the hands of Plaintiff.” Trout v. Commonwealth Transp. Comm’r of Va., 241 VA 69, 73 (1991). Given this tool at plaintiff’s disposal, it is important for all defendants to understand what a voluntary nonsuit is, how it can be used, and how it may impact their case. In Virginia, a Plaintiff is allowed one nonsuit as a matter of right, which can be taken at any point before a motion to strike the evidence has been sustained or before the case has been submitted to the jury. Va. Code Ann. § 8.01-380. This means a Plaintiff can nonsuit her case while a motion for summary judgment is pending or in the middle of trial if she does not like the make-up of the jury or how her doctor testified. Plaintiff does not need the consent of all parties...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by William J. Pfund, Esq. A recent opinion in the United States District Court for the Western District of Virginia, Abingdon Division, provides an excellent guide as to what arguments to make upon the inadvertent disclosure of privileged documents. It includes an in depth analysis of whether the attorney client privilege and the work product privilege have been waived. Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 162058 (October 2, 2017) (vacating Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. Lexis 18714 (Feb. 9, 2017). In Harleysville, an insurance company filed a declaratory judgment action asking the court to find that it had no duty to pay benefits under a policy to its insured, Holding Funeral Home. The funeral home had burned to the ground, and an expert hired by Harleysville determined the fire had been intentionally set. Harleysville sought to deny coverage on the grounds of material misrepresentation. During Harleysville’s investigation, an investigator for Harleysville shared information with the National Insurance Crime Bureau (NICB) by uploading it to a “Box Folder” on an internet file sharing service. An email with a sharing link was sent by the investigator to NICB. No password was required in order to access the folder. During the course of discovery in the declaratory judgment action, counsel for Holding issued a subpoena to NICB requesting their entire file pertaining to the fire. NICB produced the email from Harleysville’s investigator. By this time, the Box Folder included the entire claim file. Using the link in the email, counsel for Holding reviewed...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Kate Adams, Esq. Edited by William J. Pfund, Esq. There are three important Bills before the Virginia Senate and House of Delegates that could have a substantial impact on the damages claims that plaintiffs allowed to pursue in Virginia, and the amount of punitive damages plaintiffs are able to recover. The first Bill to watch is House Bill 323 which proposes to create a new category of claims in Virginia for loss of consortium. Virginia has long refused to recognize a cause of action for loss of consortium. House Bill 323 seeks to change this long held principle and create a cause of action for loss of consortium for the injury of a spouse, parent or minor child. The Bill would create a new Code Section, 8.01-38.2, and would allow the spouse of a person who suffers personal injury, the parent of a minor child who suffers personal injury, and the adult child of a person who suffers personal injury to recover damages for loss of consortium. Damages would include loss of services, loss of society and companionship, and lost wages of the person who has to care for the injured person or the minor children of the injured person. Under the proposed Bill, a spouse could recover damages for the loss of sexual relations with the injured person. The bill provides that such a cause of action may be brought independently or together with the injured party’s cause of action. If this Bill passes, the number of claims could dramatically increase and what were relatively minor claims could become more expensive to resolve. A simple car...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release. Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...
