by KPMLAW | Jan 15, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by Claire C. Carr. For the first time, the Supreme Court of Virginia has ruled on whether the collateral source rule applies in contract cases. The collateral source rule provides that compensation or indemnity received by a tort victim from a source other than the tortfeasor may not be applied as a credit against the amount of damages owed by the tortfeasor. This rule has been consistently recognized in tort cases in Virginia. It has also been applied to cases involving social security benefits, public and private pension payments, unemployment benefits, workers’ compensation benefits, and vacation and sick leave allowances. In Dominion Res., Inc. v Alstom Power, Inc., 825 S.E. 2d 757, 297 Va. 262 (2019), the court held that the collateral source rule does apply to breach of contract actions, where a plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the defendant. The court noted, however, that whether the collateral source rule applies should be determined on a case by case basis. In Dominion Resources, a company called Alstom Power, Inc. performed services at a power plant owned by Dominion Resources. These services were governed by a contract which required Alstom to obtain two separate policies, an aggregate limit policy and an excess policy. In addition to the two policies held by Alstom, Dominion Resources also had an excess policy with Associates Electric & Gas Insurance Services (“AEGIS”). As a result of a boiler accident at the plant, three workers died and two others were injured. The workers and their estates sued Dominion...
by KPMLAW | Jan 14, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. We discussed coverage concerns associated with sharing homes and cars. An even bigger headache may be the e-scooter. They are everywhere, usually in your way. E-scooters fly along sidewalks and on the roads and end up scattered about town, usually where you want to walk or park. Often they dodge around you as you walk or drive, or you dodge them. Accidents are inevitable. As the latest and greatest trend for commuters and those that just do not want to walk clutters the landscape of cities and college campuses, a significant problem exists that not many people seemed to have thought about: does the operator of the e-scooter have liability coverage in the event of an accident? In rental situations, many assume that the rental itself will provide coverage, meaning Bird, Lime or Bolt or one of the rental companies provides insurance to the operator. This does not appear to be the case. For example, the Bird rental agreement is titled “Bird Rental Agreement, Waiver of Liability and Release.” In large, bold print the agreement warns that “YOUR AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING OR DAMAGE TO THIS VEHICLE. TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR AUTOMOTIVE INSURANCE COMPANY OR AGENT.” Damage to the scooter may be the least of the worries of an operator involved in an accident. Section 15 of the Bird rental agreement, titled “Releases; Disclaimers; Assumption of Risk”, requires the operator (called the “Rider”) to indemnify and hold harmless Bird for any incident that arises out of the use of the scooter. The...
by KPMLAW | Oct 28, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. The US District Court in Alexandria recently found a carrier acted in bad faith in the case of South Boston Energy, LLC v. Hartford Steam Boiler Specialty Insurance. In this case, the insured, a power plant, suffered a loss to a large turbine. A piece of metal got inside the turbine and forced the insured to disassemble the turbine. The insured reported the loss to its insurer. Initially, the insured reported an estimate of repair of $450,000. The insurer’s adjuster responded that the loss did not exceed the power plant’s deductible. The power plant responded quickly, listing costs far in excess of the deductible associated with the disassembly, removal, repair and re-assembly. This response gave an estimate total cost of over $1 million. The carrier hired an engineer to go onsite and inspect the turbine. This engineer found that the damage reported came from covered losses. He also felt that the insured’s cost estimates could be audited and lowered some. Unsatisfied, the carrier hired two other engineers. Each found different causes of loss for the majority of turbine damage. However, neither engineer actually physically inspected the turbine nor had either engineer repaired turbines. Both of these engineers determined that the loss to the turbines did not meet the $500,000 policy deductible. Without further research into the insured’s estimates or obtaining other information on the damage or the cost to repair, the carrier denied coverage. After a jury held for the insured and awarded more than $770,000 in damages, the Court turned to the bad faith allegations. The Court applied the venerable test of bad...
by KPMLAW | Oct 14, 2019 | KPMBlog, News, Profiles
Written by Joseph Smith, Esq. Edited by Rachel Riordan, Esq. When an employee is assaulted at work, there are several factors to consider in assessing whether the assault “arises out of” the employment. Assault cases are tricky to defend due to the subjective nature of why a person is attacked. Further, the issue is compounded when the assailant is not available to testify regarding the motive. Recently, KPM’s own Bob McAdam successfully argued to the Full Commission that “why” an assailant attacks a claimant is the most important factor to consider regardless of whether motive is known. In King v. DTH Contract Services, Inc., JCN VA00001225281 (Aug. 8, 2019), the claimant was injured after being assaulted by a former co-worker. The claimant worked as an attendant at a rest station on I-66 near Manassas, Virginia during a night shift. His duties included cleaning trashcans, bathrooms, and the parking lot. When not attending to his duties, he was required to remain in a locked office and make calls to VDOT every hour to confirm his well-being. On the date of the assault, the claimant was returning to the office when he was stabbed multiple times with a screwdriver. The assailant was identified as a former co-worker who had resigned in 2015. The co-worker ultimately committed suicide without ever explaining his motive for the attack. The only disputed issue in the case was whether the assault “arose out” of the claimant’s employment. It is well-settled in Virginia that a physical assault can ‘arise out of” the employment when it is the result of an actual risk arising out of the employment....
by KPMLAW | Sep 17, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. If you are from the millennial generation, the chances are you have been derided by a family member or neighbor as being “entitled.” If you are from an older generation, you may have even used that phrase to describe a younger employee at your office. Older generations being annoyed or skeptical of younger generations is nothing new. X-ers should recall being called “slackers” and Baby Boomers were defined as “hippies.” The challenge for lawyers, adjusters and risk managers is that millennials are now the most populous generation in the United States. Press Release, U.S. Census Bureau, and Millennials Outnumber Baby Boomers and are Far More Diverse, Census Bureau Reports (June 25, 2015). This means that millennials make up a larger percentage of your customers, employees, and yes, even jury pools, than any other generation. Knowing that, it is important to see millennials beyond the stereotypes and determine how they are going to affect the outcome of your case. There is a certain amount of disagreement in defining the generation, but a 2019 Pew Research Center report defines millennials as those born between 1981 and 1996. Domock, Michael, Defining generations: Where Millennials end and Generation Z begins, Pew Research Center, https://pewrsr.ch/2szqtJz, (January 17, 2019). This means that in 2019, millennials will turn between the ages of 23 to 38. The Pew Research Center decided on these parameters in part because the generation has to be old enough to comprehend the 9/11 terrorist attacks, which is the most significant historical event that defines them, and because they entered the workforce...
by KPMLAW | Aug 15, 2019 | KPMBlog, News, Profiles, Uncategorized
August 15, 2019 — KPM LAW is pleased to announce that Claire C. Carr been included in the 2020 Edition of The Best Lawyers in America©. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Claire, AV-rated by Martindale-Hubbell, has served as the managing partner of KPM’s Workers’ Compensation department since 1999. As such, she has defended claims on behalf of large national corporations, insurance carriers, and others. She has performed insurance defense litigation in approximately 75 jury trials and since 2000 has practiced exclusively in workers’ compensation defense. Claire tailors every defense to the unique needs of her clients and is celebrated for her exceptional commitment to those claims adjusters and supervisors, safety managers and risk managers with whom she partners. Best Lawyers has published their list for over three decades, earning the respect of the profession, the media, and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in over 75 countries. Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says CEO Phillip Greer. Lawyers included on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and...
by KPMLAW | Aug 8, 2019 | KPMBlog, News, Profiles, Uncategorized, Updates
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...
by KPMLAW | Jul 12, 2019 | KPMBlog, News, Profiles, Uncategorized, Updates
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...
by KPMLAW | Jul 12, 2019 | KPMBlog, News, Profiles, Uncategorized, Updates
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...
by KPMLAW | Jul 12, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. What is Sovereign Immunity? The doctrine of sovereign immunity is “a government’s immunity from being sued in its own courts without its consent.” Black’s Law Dictionary, 4th Pocket Ed.: “Sovereign Immunity”. The doctrine is as old as American law itself. Like many of the initial common law doctrines in America’s jurisprudence, the doctrine of sovereign immunity grew out of British law. The famous 18th century English legal scholar, William Blackstone, described the reasoning behind the doctrine when he said “the law also ascribes to the king in his political capacity, absolute perfection. . . The king can do no wrong . . . The king moreover, is not only incapable of doing wrong, but even of thinking wrong.” 1 William Blackstone, Commentaries on the Law of England 245 (1809) (emphasis in original). Over the generations, the absolute immunity ascribed to the king by Blackstone has slowly eroded. For example, the Virginia General Assembly waived sovereign immunity in certain situations when it passed the Virginia Tort Claim Act—Va. Code Ann. §8.01-195.3—which allows citizens to directly sue the Commonwealth. Despite the gradual erosion of the doctrine, “sovereign immunity is ‘alive and well’ in Virginia.” Messina v. Burden, 228 Va. 301 (1984). Governmental Employees and Sovereign Immunity As noted by the Virginia Supreme Court, “The Commonwealth of Virginia functions only through its elected and appointed officials and its employees” and “[i]f because of the threat of litigation . . . they cannot act, or refuse to act, the state [itself] also ceases to act.” James v. Jane, 221 Va. 43 (1980). This...
