VIRGINIA COURT RESPONSE TO COVID -19

Like all businesses and industries, the judicial system is struggling to maintain normal operations as it attempts to limit gathering of large numbers of people to avoid the spread of COVID-19.  In response to directions of the CDC, Virginia Department of Health, and the Governor of Virginia, the courts have all issued orders suspending most matters on the upcoming docket, and they have gone even further with civil jury trials where members of the general public are required to meet.  The following orders and changes have been made to the various court dockets in Virginia. STATE COURTS:  The Supreme Court of Virginia has issued an Order Declaring a Judicial Emergency such that from Monday, March 16th through April 6, 2020, all non-essential and non-emergency court proceedings in Circuit Courts and District Courts are suspended, and all civil, traffic, and criminal matters, including jury trials are continued (with the exception of emergency matters).  It was further ordered that all deadlines are tolled for 21 days.  If an emergency matter must be heard, courtroom attendance is limited to attorneys, parties, necessary witnesses, and press in matters that cannot be continued.  The following persons may be denied entry to the courthouse: A person may be denied entry to the courthouse if: ·       They have within 14 days visited China, Iran, South Korea, Europe, or other high-risk country designated by the CDC; ·       Been asked to quarantine or isolate his or herself by a doctor, hospital or health agency; ·       Been diagnosed with or had contact with anyone diagnosed with COVID-19; ·       Has a fever, cough or shortness of breath or resides with...

Responding Offensively to Lawsuits

Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. Perhaps it is my bias as a civil defense attorney, but in many of the motor vehicle accident cases I handle, after reviewing the facts and speaking with the insured, I’m almost offended that the plaintiff brought a lawsuit in the first place. And regularly the insured defendant is incensed that they are being sued at all, especially if fault is questionable or the plaintiff did not appear injured at the scene. Consider the case of a car crash with a murky fact set in which liability is a toss-up, or even one in which negligence of the plaintiff is slightly more likely. While plaintiff may indeed have suffered property damage and personal injury, often the insured defendant also sustained property damage and in some cases even their own personal injury, however minor. In that case, the insured defendant has as much of a right to sue and recover from plaintiff. The counterclaim is the ideal tool to respond offensively when sued, but it is underutilized in the insurance defense industry. What’s striking is the breadth of Virginia Supreme Court Rule 3:9, which provides: A defendant may, at that defendant’s option, plead as a counterclaim any cause of action that the defendant has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the complaint, whether or not it is for liquidated damages, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the complaint.[1] Granted, there...

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...