UPDATE: Just When You Thought You Knew Everything About Pay and Quit Pursuant 38.2-2206 Here Comes the General Assembly Again!

Written by Daniel Royce, Esq. Edited by Bill Pfund, Esq. In 2015, the Virginia General Assembly enacted significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impacted Virginia Code Section 38.2-2206 and added a new statute at 8.01-66.1:1.  The stated purpose of these changes was to expedite uninsured and underinsured motorist payments.  These changes went into effect for policies issued or renewed on or after January 1, 2016. In short, the 2016 revision represented a sea change in how UIM claims would be handled with significant changes impacting both liability and underinsured motorist carriers in the following ways: The liability carrier became able to tender policy limits in exchange for complete settlement and release of the defendant/tortfeasor and the liability carrier. Acceptance of the liability carrier’s limits by the injured party extinguished the primary liability carrier’s duty to defend. The duty being extinguished upon payment of the liability limits (not merely acceptance of the offer). A settlement under these provisions extinguished the UIM carrier’s right of subrogation against underinsured defendant, and Upon being released, the defendant/tortfeasor has statutory duties to reasonably cooperate with the UIM carrier in its defense of the case. 2016 Changes to Virginia Code 38.2-2206 The statute governing uninsured and underinsured motorist coverage is located in Virginia Code Section 38.2-2206. Prior to the 2016 revision, the liability carrier was permitted to pay limits in cases where the injured person had UIM coverage. However, such payment did not secure release of the liability carrier or it’s insured. Significantly, the liability carrier retained the duty...

Summary Judgment Is Becoming More Viable in Virginia

Written by Kate Adams, Esq. Edited by Bill Pfund, Esq.  Summary judgment in Virginia state courts, unfortunately, has been akin to finding a four leaf clover, we all know it exists but it is rarely ever granted. However, with the passage of Senate Bill 1486 and a recent decision from Judge David Bernhard of Fairfax Circuit Court, the constraints regarding the type of evidence a court may consider when hearing such motions  is expanding, making summary judgment more attainable. As reported in the KPM April 2019 Newsletter, Senate Bill 1486 has passed and went into effect on July 1, 2019 which expands the provisions of Virginia Code §8.01-420 and provides that “discovery depositions under Rule 4:5 and affidavits may be used in support of or opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” Although this change is narrowly tailored to business entities and cases where the amount at issue is over $50,000, this may pave the way for more opportunities to obtain summary judgment in Virginia. A May 24, 2019 ruling by Judge Bernhard addressed the type of evidence a court can consider when ruling on a motion for summary judgment. In HCP Properties-Fair Oaks of Fairfax VA LLC v. County of Fairfax, Judge Bernhard considered “whether a party can use a deposition of a Corporate Designee of an adverse party in support of its “Plea in Bar” seeking the dismissal of an action, in light of the stricture of Virginia Code §8.01-420 on the use of depositions...

Nonsense and Nonsuits — The Fairfax Circuit Court Awards Costs and Fees after Plaintiff’s Second Voluntary Nonsuit

Written by Chris Bergin Edited by Brian A. Cafritz Each legal jurisdiction across the country has its own unique set of procedural rules and potential pitfalls. In Virginia, one of our legal oddities is the “voluntary nonsuit.” As Jessica Relyea of KPM LAW’s Restaurant and Retail Litigation team has previously explained, a nonsuit is a voluntary dismissal, which allows a Plaintiff to correct a flaw in her case and refile in the future. In practice, voluntary nonsuit is a free “do-over.” In Virginia, every Plaintiff is allowed one nonsuit as a matter of right. This nonsuit may be taken any time before the case has been submitted to the jury. Va. Code Ann. § 8.01-380(B). The Plaintiff does not need the consent of the parties or the approval of the Court to take the first nonsuit. Plaintiffs routinely use nonsuits to avoid summary judgment, fix procedural or strategic errors errors, defeat the statute of limitations, or short-circuit a trial that appeared to be going poorly for the Plaintiff.  The voluntary nonsuit is one of the most potent tactical weapons available to Plaintiffs in Virginia. Nevertheless, it is not all-powerful. For example, if the Plaintiff wants to take a second nonsuit under Code §8.01-380(B), she must obtain Court approval. And, as Judge Gardiner from the Fairfax Circuit Court recently held, Code § 8.01-380(b) allows the Judge to award court costs and fees against the nonsuiting party for a second nonsuit. In the recent case of Lezlie Day v. Gregory Day, (which was decided on April 1, 2019), the plaintiff, Lezlie Day, filed an action for divorce against her husband, Gregory,...

Asleep at the Wheel, Part II: The Court of Appeals’ Decision in Norris and What It Means for You

Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Back in September, KPM’s Joe Smith updated you about the Commission’s recent decision of Norris v. ETEC Mechanical Corporation, JCN:VA00001317384 (June 25, 2018). Norris involved a claimant who sustained serious injuries in a car accident after he fell asleep at the wheel. By Norris’s own admission, he “dozed off.” He said he’d done it before and added that “I guess this time I didn’t wake up.” The Commission denied benefits, holding that the accident did not “arise out of” his employment. Specifically, the Commission found that Norris had failed to prove a “causal connection between [his] employment and his untimely slumber…” Since Joe’s update, the Court of Appeals reviewed the Commission’s decision in Norris. In the published decision of Norris v. ETEC Mechanical Corporation, Record No. 1054-18-2 (Dec. 28, 2018), the Court agreed with the Commission that Norris could not recover under the Workers’ Compensation Act. The Court’s Norris opinion begins by explaining the difference between an injury occurring “in the course of” employment and “arising out of” employment. Norris, who was driving a company vehicle at the time of his crash, was clearly “in the course of” his employment. However, Norris still needed to prove a “’critical link’ or causal connection between the conditions of his work and falling asleep behind the wheel.” The Court held he failed to do this. The reason Norris lost was because he “denied knowing what caused him to fall asleep.” Although he “testified that he dozed off because he was tired,” he “never related his drowsiness to his employment.” He also admitted...

Trouble is Always Just a Click Away

Written by Jessica Relyea Edited by Brian A. Cafritz Last year, the KPM LAW Newsletter addressed whether a restaurant or retail establishment could be held vicariously liable for a defamation claim against an employee due to the employee’s social media post.   If the employee was acting within the scope of his or her employment at the time she made the post, the employer could be held liable.  Therefore, what should the employer know about the customer’s defamation claim? In Virginia, actions for defamation are akin to actions for slander or libel.  The first step in the analysis is for the trial judge will make a determination, as a matter of law, whether the “statement makes substantial danger to reputation apparent.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (Va. 1985).  If the answer is yes, the simple negligence standard applies.  If the answer is no, the tougher New York Time’s malice standard applies.  If the negligence standard applies, the plaintiff need only prove that (1) the statement was false, and (2) the defendant either knew it to be false, lacked reasonable grounds to believe it to be true, or acted negligently in failing to ascertain whether it was true or false. Id.   If the New York Time’s malice standard applies, the Plaintiff must prove either the statement was made with knowledge that it was false or that defendant acted with reckless disregard of whether it was false or not.  Id. citing New York Times Co. v. Sullivan, 376 U.S. 254, 268 (U.S. 1964).  If the New York Times standard applies, truth is affirmative defense, and the burden of proving...

Changes in Virginia Workers’ Compensation Law

Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. The General Assembly convened earlier this year and enacted a number of changes to Virginia’s workers’ compensation laws. However, a number of proposals that would have resulted in even bigger changes failed. Below is a summary of what did and did not become law in 2018: Legislation Passed by the General Assembly The Hon. Ferrell Newman, already a Workers’ Compensation Commissioner, was appointed Chairman of the Workers’ Compensation Commission effective July 1, 2018. He takes over as Chairman from Commissioner Wesley Marshall for a 3 year term. HB 82 held the tax rate paid by insurance carriers and self-insured employers to fund the Uninsured Employer’s Fund steady at .005 %. HB 558 added clarity to the term “medical community” for employers obligated to pay for out-of-state medical treatment. HB 117 provided that specially-appointed Deputy Commissioners or retired Commissioners can be counted in determining whether there is a quorum of the full Commission. Legislation Not Passed by the General Assembly HB 1543 would have expanded the time period for many claimants to file new claims for benefits. Specifically, the bill provided for the tolling of the two-year limitations period for filing a new claim during the time when the employer was paying either medical or wage loss benefits. This is not allowed under current law. HB 969 would have drastically reduced the ability of claimants to seek compensation from a “statutory employer” in cases where their own employers did not have workers’ compensation insurance. HB 460 would have made it easier for a claimant to bring a civil suit for...