by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Rachel Stewart, Esq. Much to do has been made about the Maryland Court of Appeals’ recent opinion in Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006 (2015) wherein the Court held that a cause of action existed against a home owner for her allowance of under-age drinking at her residence which later resulted in the death of a teen involved in a drunk driving accident. Maryland has historically not recognized social host liability, and there is no dram shop statute imposing liability against a restaurant for the acts of guests who were served despite being visibly intoxicated. Despite this long held position, the plaintiff’s bar has argued that Kiriakos opens the door for social host liability against restaurant owners. However, a close reading of the opinion suggests that Kiriakos is a very narrow holding, and Maryland will continue to adhere to its position that restaurants are not liable for the acts of drivers who were served at their establishments. The Court’s holding in Kiriakos was based on the homeowner’s violation of a criminal law, Md. Code Ann., Crim. Law §10-117(b), which prohibits an adult from knowingly and willingly allowing a minor to possess or consume alcohol at a residence owned or leased by the adult. The Court found that there is a limited form of social host liability sounding in negligence based on the strong public policy found in the criminal statute that only exists when the adult in question acts knowingly and willingly. The basis of the court’s holding was that the statute at issue was intended to protect a specific class of persons, i.e....
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Erin Slusser, Esq. Edited by Janeen Koch, Esq. KPM LAW is pleased to offer its special Legislative update. This update contains summaries of bills of interest to our readers that were enacted by the General Assembly in its 2016 session and that took effect as of July 1, 2016. This information is taken from the Summary of the 2016 Session of the General Assembly published by the Division of Legislative Services. The abbreviations used are as follows: HB – House Bill; SB – Senate Bill. If you wish to read the entire text of a bill to see how it changed the previously existing law, you may visit the Virginia General Assembly Legislative Services website at http://virginiageneralassembly.gov. Automobile, commercial liability, and homeowners insurance policies; notices: This bill restores the ability of insurers, when sending certain types of notices, including notice of cancellation or nonrenewal of a motor vehicle, commercial liability, or homeowners insurance policy, to use mailing methods for which a certificate of mailing is obtained from the United States Postal Service, provided that certificates of bulk mail are not permissible. The measure also clarifies that Intelligent Mail Barcode Tracing is a permitted first-class mail tracking method and clarifies that insurers are required to maintain records regarding the sending of such notices for one year, regardless of the method used to send the notice. See HB 31; Va. Code Ann. 38.2-231. Structured Settlement Protection Act; amends Act so obligor and issuer may rely on court order. This bill amends the Structured Settlement Protection Act (the Act) to provide that the structured settlement obligor and the annuity issuer...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Author: Lee Hoyle Editor: Brian A. Cafritz In products liability cases, it seems that any entity that touches the product could have liability. Manufacturers, designers, installers, sellers, and repair companies all face exposure for defective products merely because of their relationships to the product. In such cases, defendants have long relied on the “empty chair” defense. The defense, which sounds more dramatic than it is, simply means that a defendant claims that someone else, someone not before the court, is responsible for the injuries. The defense survived a challenge before the Virginia Supreme Court, but the reasoning of the decision may complicate attempts to raise the defense in the future. In Dorman v. State Indus., ___ Va. ___, 2016 Va. LEXIS 77 (June 16, 2016), the plaintiffs were several people who suffered carbon monoxide poisoning from a gas fired hot water heater, which they claimed was the result of the design of the heater. The plaintiffs brought suit against several defendants, but only the manufacturer remained at trial. The theories at trial were negligence and breach of warranty. The manufacturer denied liability on the grounds that the heater was improperly installed and maintained, even though the installer and maintenance companies were not named in the case. At trial, the plaintiffs argued that the defendant could not argue the “empty chair” defense and point the finger at the installer or the maintenance company. They claimed that because Virginia follows Joint and Several Liability, any negligence of the manufacturer made it liable for the whole verdict. As a result, the negligence of another entity was not relevant unless such negligence constituted...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized
Written by Ed Trivette, Esq. Edited by Janeen Koch, Esq. Pokémon Go is a mobile device game that has taken the world by storm. It has been downloaded over 50 million times on Android phones alone. The game is a modern adaption of the card game made popular by Nintendo in the early 2000s. Unlike its predecessors, Pokémon Go has a real-world component. The new game encourages players to “hunt” Pokémon, small magical creatures, in the real-world by using augmented reality to make Pokémon appear through the camera on the player’s cell phone. “You’ll have to stay alert, or it might get away!” Like most new technology, Pokémon Go has serious real-world legal implications. One of the biggest issues involving Pokémon is that many players stare intently at a mobile device screen in order not to miss out on capturing Pokémon in the augmented reality of the app. Of course, hunting Pokémon in augmented reality can make the actual reality of typical pedestrian perils such as traffic, slippery or uneven walking surfaces and elevation changes much more dangerous. Thinking through the pursuit of Pokémon and the potential ensuing accidents could, and likely will, supply a law school torts professor with just the sort of open-ended discussion question that first year law students will eagerly fill pages answering. For business owners and their insurance carriers those hypothetical dangers will become actual premises liability lawsuits in the coming months and years. What Duty is Owed to the Pokémon GO Plaintiff? The legal duty owed hinges upon the status of the Pokémon GO player with respect to...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. Recently, the United States District Court for the Eastern District of Virginia revisited the workmanship and earth movement exclusions of a Commercial General Liability policy and how the ensuing loss provisions impact coverage. In Taja Investments, LLC v. Peerless Ins. Co., 2016 U.S. Dist. Lexis 95760 (July 21, 2016), a wall collapsed during renovation of a row house. The construction company performing the renovations sought coverage for emergency measures to prevent further damage and the cost to restore the property to pre-collapse condition. Investigation revealed that the insured intended to expand a crawl space to create a living area basement. However, the contractors doing the work ignored warnings about performing underpinning during the excavation process. Engineers determined that this failure to underpin the work coupled with unstable soil and clay below the surface caused the collapse. The insured did not dispute this finding. The carrier denied coverage for the loss asserting that the damage was excluded. The insured sued for breach of contract. The Court granted summary judgment for the insurer on both the workmanship and earth movement exclusions. First, the Court stated that the workmanship exclusion “is applicable when the insured’s loss is attributable to the quality of the constructed property and arises from defects in the materials or process used by the insured or its agents to construct the property.” Id. at 9. Because “the cause of the collapse is directly attributable to the acts and omissions of Plaintiff in excavating the entirety of the basement without performing any underpinning to secure the foundation of the walls” the workmanship exclusion precluded coverage. ...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Whether an assault upon an employee is compensable depends on a variety of factors. The initial inquiry to be made is whether it falls under the definition of a compensable injury by accident. To be compensable, an injury by accident must arise out of and in the course of employment. Va. Code § 65.2-101; County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). The claimant bears the burden of proving his injury arose out of his employment. Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993). The phrase “arising out of” refers to the origin or cause of the injury. Johnson, 237 Va. at 183, 376 S.E.2d at 74; Marion Correctional Ctr. v. Henderson, 20 Va. App. 477, 479, 458 S.E.2d 301, 303 (1995). An injury arises out of the employment where there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and resulting injury. Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In Virginia, the “actual risk” test is used to determine whether an injury arises out of the employment. Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379 (1989)( holding that a truck driver’s injuries sustained during a robbery did not arise out of his employment as an over-the-road truck driver where there was no evidence establishing a nexus between the criminal act and his employment.) “An accident arises out of the employment if a causal connection is established...
