by KPMLAW | Aug 13, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Stephanie Gacek Cook, Esquire Kalbaugh, Pfund & Messersmith, P.C. is pleased to offer its special Legislative post on our blog. This update contains summaries of bills of interest to our readers that were enacted by the General Assembly in its 2015 session and that took effect as of July 1, 2015. This information is taken from the Summary of the 2015 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. UM/UIM. The most notable change in the insurance industry is to the UIM/UM laws, found in Va. Code Ann. 38.2-2206 and 8.01-66.1:1. Our newsletter of June 2015 provided a detailed overview of these changes, and you can visit our website at www.kpmlaw.com for more information. In short, these changes establish a procedure by which an injured person or personal representative may settle a claim with a liability insurer and its insured for the available limits of coverage without jeopardizing a claim for underinsured motorist benefits. Upon payment of the available limits, the liability insurer has no further duties to its insured and the underinsured motorist benefits insurer shall have no right of subrogation or claim against the underinsured motorist, unless the underinsured motorist unreasonably fails to cooperate with the underinsured motorist insurer in the defense of any lawsuit. It is important...
by KPMLAW | Jul 22, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Randall C. Lenhart, Jr., Esquire The Supreme Court of Virginia recently addressed the issue of when to exclude evidence when the prejudicial effect substantially exceeds its probative value in Julia Cain, et al. v. Joe Lee, 2015 Va. LEXIS 77 (June 4, 2015) as it relates to post-accident conduct by the defendant in determining punitive damages. In Cain, Julia Cain was driving with her daughters in their vehicle when she began to slow her vehicle due to traffic in front of her. As she slowed down, a vehicle being driven by the defendant rear-ended the Cains’ vehicle which caused the Cains’ vehicle to collide with the car in front of it. After the accident, the state trooper who responded to the scene determined that the defendant was possibly intoxicated due to his appearance and the presence of a strong odor of alcohol. The defendant failed a field sobriety test and then consented to a preliminary breath test which registered a blood alcohol content of .25 (over three times the legal limit of .08). After being arrested and brought before the magistrate, the defendant refused to submit to a breath test which resulted in him being charged with unreasonably refusing to submit to a breath test in violation of Virginia Code § 18.2-268.3 and driving under the influence (“DUI”) in violation of Virginia Code § 18.2-266. At the traffic hearing, the defendant pled guilty to DUI and the Commonwealth agreed to nolle prosequi the charge for the unreasonable refusal charge pursuant to a plea bargain. Julia Cain and her two daughters...
by KPMLAW | Jun 16, 2015 | KPMBlog, News, Uncategorized
Editor – Janeen B. Koch, Esquire Author – Danny Royce, Esquire The Virginia General Assembly has recently enacted several significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impact Virginia Code Section 38.2-2206 and add a new statute at 8.01-66.1:1. According to the State Corporation Commission, the stated purpose of these changes is to expedite uninsured and underinsured motorist payments. These changes will go into effect for policies issued or renewed on or after January 1, 2016. In short, these changes impact both liability and underinsured motorist carriers in claims involving UIM coverage: The liability carrier can tender policy limits in exchange for a complete settlement and release of the defendant/tortfeasor and the liability carrier. Acceptance of the liability carrier’s limits by the injured party extinguishes the primary liability carrier’s duty to defend. This duty is extinguished upon payment of the liability limits (not merely acceptance of the offer). A settlement under these revisions extinguishes the UIM carrier’s right of subrogation against the underinsured defendant. Upon being released, the defendant/tortfeasor now has statutory duties to reasonably cooperate with the UIM carrier in its defense of the case. Changes to Virginia Code 38.2-2206 The statute governing uninsured and underinsured motorist coverage is found in Virginia Code Section 38.2-2206. Prior to this revision, the liability carrier was permitted to tender its limits in cases where the injured person had UIM coverage. However, such tender did not secure the release of the liability carrier or its insured. Significantly, the liability carrier retained the duty to defend its insured and...
by KPMLAW | May 18, 2015 | KPMBlog, News, Uncategorized
Being served with a garnishment summons that orders an employer to garnish the wages of its employee is a standard business practice for most companies. However, under Virginia law, if a garnishee fails to comply with a garnishment summons, then judgment may be entered against the garnishee. Va. Code. 8.01-516.1. While most companies are probably familiar with this penalty, the way in which a garnishment summons is served in Virginia is different, and more expansive, than the normal rules governing service of process. If a business is not familiar with Virginia’s service laws for garnishment summons, it can quickly find itself responsible for the wages it failed to garnish. In Virginia, service on a domestic or foreign corporation is most commonly effectuated by personal service on any officer, director or registered agent. Va. Code Ann. 8.01- 299; Va. Code Ann. 8.01-301. In certain circumstances a foreign corporation may also be served through personal service of an agent within the Commonwealth of Virginia, the Virginia State Corporation Commission, the Secretary of the Commonwealth, by personal service outside the Commonwealth of Virginia, or by order of publication. Va. Code Ann. 8.01-301. However, in a garnishment proceeding, Virginia has eased the burden and broadened the ways service may be properly effectuated. Service in a garnishment proceeding is governed by Va. Code Ann. 8.01-513, which states that when effectuating service on a corporation, the summons shall be served upon an officer, an employee designated by the corporation, or if no such person is designated or cannot be found, upon a managing employee. Va. Code Ann. 8.01-513. Effectuating service on an LLC must be...
by kpmAdmin | Apr 28, 2015 | KPMBlog, News, Uncategorized
When a worker is injured and there is a question as to whether the employee is an independent contractor or an employee of the direct employer or general contractor, several factors need to be considered to determine whether an employer/employee relationship exists. If the facts of the case demonstrate that the worker is an independent contractor, the general contractor may not be held liable for the worker’s injury. The court has recently addressed the factors that are considered to determine whether an employer/employee relationship exists and has noted that the key consideration is the level of control the employer has over the employee. Maryland Labor and Employment § 9-202 provides that “An individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.” “To overcome the presumption of covered employment, an employer shall establish that the individual performing services is an independent contractor in accordance with the common law or is specifically exempted from covered employment under this subtitle.” Maryland case law has addressed the factors which establish an employer/employee relationship under the traditional common law test. A worker will be deemed a “covered employee” unless it is established that he or she is an “independent contractor” under the common law rules. The courts have considered the following factors to determine the existence of an employer/employee relationship (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of...
by kpmAdmin | Mar 15, 2015 | KPMBlog, News, Uncategorized
A number of recent Virginia personal injury cases involving collapsing decks have led some Virginia lawyers to wonder if this rash of cases is indicative of a growing area of injury law. Many such cases reveal residential deck construction showing signs of design and construction shortcuts, as well as a lack of the requisite inspection and permit. Deck construction done more than a generation ago is now reaching the age where a collapse is increasingly likely. For defense attorneys and insurers, this means a potential increase in cases that often involve serious injuries, as well as a specific set of issues that need to be explored in evaluating liability. In cases where a guest sues an occupying homeowner for injuries resulting from a collapsed deck, basic premises liability rules control. Therefore, in order to prevail against the homeowner occupying the premises, the injured guest must prove that the homeowner had knowledge of the defect causing the collapse – in other words, that the homeowner either had actual knowledge of the defect, or that the defect had existed for such a length of time as to make it the homeowner’s duty in the exercise of ordinary care to have discovered it. See Roll “R” Way Rinks v. Smith, 218 Va. 321 (1977). Proving notice can be difficult enough, but another host of issues arise when a collapsed deck case involves a tenant (or a guest of a tenant) suing a landlord. Under Virginia law, a landlord is not liable to its tenant for failing to make a repair to the leased premises which is under the exclusive possession and control...
