by KPMLAW | May 11, 2021 | Events, KPMBlog, News, Profiles, Uncategorized
Written by Robert Worst, Esq. Edited by Bill Pfund, Esq. Does anyone remember that Ethan Hawke, Uma Thurman, Jude Law futuristic movie from the 90’s “Gattaca”? In it, humans could purchase select genetic characteristics for children if they had enough money. The outcasts were the children born naturally without genetic enhancement. One particular threat in the movie was that insurance companies had begun basing insurance coverage and rates on a person’s level of genetic enhancement and would not insure natural, non-modified persons due to the perceived higher risk of illness, injury or death. The movie tapped into our collective fear over the loss of control of our private information and big business’s ability to use that information against us. One area of Virginia insurance and motor vehicle law codified that fear by protecting another form of personal information: the way we drive. The result is that potentially useful information recorded by the Airbag Control Module after an accident may be difficult or impossible to obtain. The Virginia General Assembly introduced House Bill 816 in 2006 amending Virginia’s insurance and motor vehicle laws to prohibit insurers from using data recorded by motor vehicles against the vehicle’s owner. Va. HB 816 added a new subsection “s” to Va. Code §38.2-2212. This statute already prohibited insurers from refusing to renew a motor vehicle insurance policy solely because of constitutionally protected status such as age, gender, and race. The new section “s”, however, also included “the refusal of a motor vehicle operator … to provide access to recorded data from a recording device” in the vehicle. A new section, Va. Code §38.2-2213.1, further...
by KPMLAW | Apr 26, 2021 | Uncategorized
Recognizing Inclusion for the Next Generation (RING) is a certification program that evaluates an organization’s commitment to embracing and expanding Diversity, Equity, and Inclusion initiatives. Established in 1990 and operating four mid-Atlantic offices, KPMLAW recognizes that diversity in both the workforce and in firm leadership is essential for maximizing business effectiveness and potential. KPM upholds the belief that promoting and expanding a commitment to diversity and inclusion will assist KPM LAW in its relentless pursuit of excellence and service to its clients. Learn more about RING Certification: www.ringcertification.org....
by KPMLAW | Apr 14, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. In Virginia, an injured person can recover up to $350,000 in punitive damages if the defendant acted with “willful and wanton negligence.” Whereas compensatory damages (which are not capped) are meant to make the injured person whole, punitives seek to punish the wrongdoer and deter others from similar conduct. Doe v. Isaacs, 265 Va. 531, 536 (2003).[1] It can be difficult, however, to determine whether the defendant’s conduct rises to the level of willful and wanton negligence; there is no bright-line rule, and the court will make a determination based on each case’s unique facts. Alfonso v. Robinson, 257 Va. 540, 545 (1999). There are three types of negligence: 1) Simple Negligence, 2) Gross Negligence and 3) Willful and Wanton Negligence. Simple negligence is easy to understand and spot: think fault. Gross negligence is essentially “shocking fault.” The third level of negligent conduct is “willful and wanton negligence.” This conduct is defined as “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 919.[2] A helpful way to repackage this standard is to ask whether the individual acted in a way that showed that the defendant did not care at all if someone else was about to be seriously injured by the actions he was taking. If the defendant had such utter disregard for the safety of others, then assess if there are...
by KPMLAW | Apr 6, 2021 | Events, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Stephanie Cook, ESQ. Edited by Bill Pfund, ESQ. SB 1108 – Raises Jurisdictional Limits In General District Court SB 1182 – Raises Motor vehicle Liability Insurance Coverage Limits SB 1108 has passed and will become law in Virginia on July 1, 2021. This new law increases from $25,000 to $50,000 the maximum civil jurisdictional limit of general district courts for civil actions for personal injury and wrongful death actions only. Note that $25,000 remains the jurisdictional limit for all other claims such as those involving property damage or breach of contract. It also now requires an appeal bond from a defendant who wishes to appeal a decision from general district court to circuit court by stating, “in a case where a defendant with indemnity coverage through a policy of liability insurance appeals, the bond required by this section shall not exceed the amount of the judgment that is covered by a policy of indemnity coverage.” Previously, if an insured defendant wanted to appeal a general district court decision to circuit court, an appeal bond was not required. Instead, all that was required was a “written irrevocable confirmation of coverage in the amount of the judgment.” As a result of this new law, we will surely see more claims filed in general district court as opposed to circuit court. There is little to no discovery in general district court, so plaintiffs have an incentive to file in general district court rather than circuit court in order to save costs. In addition, there is no jury in general district court. We should also expect to see a flurry of...
by KPMLAW | Mar 21, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Gorman, Esq. Edited by Bob McAdam, Esq. Certain employees may now be able to establish compensability of COVID-19 claims. On Saturday, February 27, 2021, the General Assembly passed two bills making it easier for certain employees, such as health care providers and first responders to claim workers’ compensation for contracting COVID-19 on the job. The two bills considered and passed are as follows: HB 1985 Workers’ compensation; presumption of compensability for COVID-19. Workers’ compensation; presumption of compensability for COVID-19. Establishes a presumption that COVID-19 causing the death or disability of health care providers is an occupational disease compensable under the Workers’ Compensation Act. The bill provides that the COVID-19 virus is established by a positive diagnostic test for COVID-19, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical treatment. The bill provides that such presumption applies to any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after March 12, 2020, and prior to December 31, 2021, the claimant received a positive diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment. The bill provides that such presumptions do not apply to any person offered by his employer a vaccine for the prevention of COVID-19 unless the person’s physician determines in writing that immunization would pose a significant risk to the person’s health. Under this bill, all health care providers are afforded...
by KPMLAW | Mar 16, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Strobo, Esq. Edited by Bill Pfund. Esq. Occurrence-based liability insurance policies are peculiar because the term “occurrence” is ambiguous and unhelpful to insureds. In fact, the Merriam-Webster dictionary simply defines the term occurrence as “something that occurs.” Moreover, occurrence-based policies do not provide coverage based on when the “occurrence” takes place, but rather when either bodily injury or property damage “occurs” within the policy period. This raises an important question: what is an “occurrence” and what role does it play in determining coverage? Occurrence-based liability policies insure against loss arising from bodily injury or property damage, but only when an “occurrence” causes such loss. Although the meaning of an “occurrence” may differ from policy to policy, most define the term as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In other words, an “occurrence” is an accident. Indeed, the Virginia Supreme Court has recognized that “[t]he terms ‘occurrence’ and ‘accident’ are ‘synonymous…” AES Corp. v. Steadfast Ins. Co., 283 Va. 609 (2012). As a result, what is and is not an accident is an important question in determining coverage. After all, practically every person seeking coverage will claim that an accident caused his or her damages regardless of what actually happened. Under Virginia law, an intentional act directly resulting in harm is obviously not an accident. The Virginia Supreme Court has held that an “accident” is “commonly understood to mean an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated.” AES Corp. v. Steadfast...
