Policy Renewal Pitfalls

Written by Gary Reinhardt, Esq. The Bureau of Insurance strongly encourages insurers and other licensees to be flexible and take into consideration the hardships and constraints many individuals and businesses are experiencing during this unprecedented public health emergency. For this reason, the Bureau encourages those it regulates to consider taking the following actions, consistent with prudent insurance practices: Insurers should consider relaxing due dates for premium payments, extending grace periods, waiving late fees and penalties, and allowing payment plans for premium payments to otherwise avoid a lapse in coverage. Insurers should also consider cancellation or non-renewal of policies only after exhausting all other reasonable efforts to work with policyholders to continue coverage. (Bureau of Insurance bulletin, March 27, 2020) The Bureau of Insurance (BOI) is not mandating that insurers provide flexibility with this statement, merely that insurers “should consider” not canceling policies if insureds have COVID-19 related issues that hamper premium payments.  However, some insureds are taking advantage of the extensions of insurers and using this to shop rates or just take a break from premium payments. If insureds do not renew a policy, an insurer does not have to jump through all of the cancellation hoops contained in title 38.2 of the Code of Virginia.  If an insured does not respond to an offer to renew, the policy lapses and the insured has no coverage as of the timeframe contained in the policy. Almost if not every insurer initially conditions renewal on receipt of premium when the insurer makes its first offer of renewal.  This condition on receipt overrides any claims that simply mailing the premium prior to...

7th Order Extending Declaration of Judicial Emergency

The 7th Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency can be found here. The new date through which the extension applies is August 9, 2020. Included in the new Order is the following: Plans for restarting jury trials, as required by Paragraph 16 of the Sixth Order, shall be submitted by Chief Circuit Court Judges to the Chief Justice. Jury trials may be held as soon as the plan has been submitted and approved by a panel of three Justices in consultation with the Office of the Executive Secretary. No jury trials shall occur in any locality in the Commonwealth for the duration of this Order, unless and until the plan applicable to the locality has been approved by the panel. The tolling period as a result of the Judicial Emergency for such statutes of limitation and deadlines shall be limited to March 16, 2020 through July 19,...

Failed Bill in Virginia Legislature Would Have Increased Minimum Motor Vehicle Liability Limits

Written by Randall C. Lenhart, Jr. Edited by Bill Pfund  Virginia does not require motor vehicle liability coverage for its motorists.  Instead, Virginia motorists are free to choose whether or not to purchase liability insurance for their vehicles.  But if they decide not to insure their vehicles they must pay a $500 “uninsured motorist fee” at the time of registration of the uninsured vehicle. Virginia does require though that all certified motor vehicle liability policies issued or delivered in the Commonwealth provide minimum insurance coverage to the insured in the amount of $25,000 because of bodily injury to or death of one person in any one accident and in the amount of $50,000 because of bodily injury to or death of two or more persons in any one accident.  Virginia also requires minimum coverage of $20,000 for property damage.  These minimum limits are codified in Virginia Code § 46.2-472 and have been set in the current amounts for over 30 years. Earlier this year, SB 664 was introduced which would have increased the minimum motor vehicle liability insurance coverage limits from $25,000 to $100,000 in cases of bodily injury to or death of one person, from $50,000 to $200,000 in cases of bodily injury to or death of more than one person in any one accident, and from $20,000 to $40,000 for property damage coverage.  The Senate Transportation Committee amended the Bill to reduce the increases from $25,000 to $35,000 in cases of bodily injury to or death of one person and from $50,000 to $70,000 in cases of bodily injury to or death of more than one person...

Negligence and the Implied Warranty of Merchantability with Foreign Objects in Food

Written by Delia deBlass, Esq. Edited by Bill Pfund, Esq. When a foreign object is found in a food product, a Plaintiff will typically bring their claim under a products liability action. Plaintiff has the option of bringing two different, but intertwined claims: negligence and/or breach of implied warranty of merchantability. But is there a difference in the claims, and does it matter? Negligence in this instance is a well-known concept, in that the Plaintiff has to prove duty, fault, causation and damages. There are three different types of negligence that can apply with products liability: (1) negligent design; (2) negligent manufacture; or (3) negligent failure to warn. With foreign objects in food, negligent failure to warn is most often pled. A negligence claim will focus on the conduct of the food product supplier in failing to warn users of dangers that could come about by the product’s use. That being said, a plaintiff can also bring a breach of implied warranty of merchantability claim. The implied warranty of merchantability is a claim that has roots in both Virginia case law and Article 2 of the Uniform Commercial Code (UCC) as adopted by Virginia. Article 2 of the UCC deals with consumer transactions. Section 2-314 of the UCC provides the definition for merchantability of goods, which states that (among other things) merchantable goods must be “fit for the ordinary purpose for which such goods are used” and “adequately contained, packaged, and labeled”. (See UCC §2-314 (2)(c), (2)(e).) The elements of a breach of implied warranty of merchantability are that goods sold were unreasonably dangerous for use to which they...

Sixth Order Extending Declaration of Judicial Emergency In Response to Covid-19 Emergency entered by the Virginia Supreme Court

The Sixth Order Extending Declaration of Judicial Emergency In Response to Covid-19 Emergency entered by the Virginia Supreme Court was entered yesterday. Highlights are offered below.  You can review the entire Order here. The Declaration of Judicial Emergency is EXTENDED until July 19, 2020 Statutes of Limitations and case related deadlines (except for discovery deadlines) continue to be tolled during period of Judicial Emergency. While video conferencing and telephonic hearings are preferred, Courts may hear in-person non-emergency matters and non-jury cases if they determine it is safe to do so. Still not necessary for a party to obtain the agreement of any other party to bring a pre-trial motion before the court set a non-jury trial. Facemasks required Continuances and excuses for failure to appear shall be liberally granted for reasons resulting from impact of Covid-19 Jury trials remain suspended and no jury trials shall take place for the duration of this Order. Jury trials after July 19 are subject to a further period of suspension if the Declaration of Judicial Emergency is extended. Judge Lemons has appointed a Task Force to address the reinstatement of jury trials in the...

New Work Comp Law: Carriers and TPAs Should Alert their Insured Employers

Written by Claire Cafritz Carr, Esq. Edited by Rachel A. Riordan, Esq. A new workers’ compensation law recently passed in Virginia will go into effect on July 1st  and will impact employers and carriers at the outset of a work related accident. The new law is §65.2-601.2 and  it provides that once an employee files a claim for benefits under §65.2-601 (addressing the time limit for filing a claim) the Commission shall issue an order to the employer to advise the employee within 30 days whether the claim will be accepted or denied and the reasons for any denial. If a decision can’t be made due to a lack of information, the specific information required to make a decision must be provided.   The notice to the employee can be sent to the employee by email if he or she consents. Here is the link to the statute:  https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1086+pdf § 65.2-601.2. Notice to employee of employer’s intent. A. Whenever an employee makes a claim pursuant to § 65.2-601, the Commission shall order the employer to advise the employee, within 30 days following the date of such order, whether the employer (i) intends to accept the claim, (ii) intends to deny the claim, or (iii) is unable to determine whether it intends to accept or deny the claim because the employer lacks sufficient information from the employee or a third party to make such determination. If the employer responds that it intends to deny the claim, the response shall provide reasons therefor. If the employer responds that it is unable to determine whether it intends to accept or deny the claim...

Is a defendant’s obligation to satisfy a verdict affected by a plaintiff’s pretrial settlement with their UIM carrier?

Written by Matthew Liller, Esq. Edited by Bill Pfund, Esq. The Supreme Court of Virginia recently clarified that a plaintiff who reaches a pretrial settlement with their underinsured motorist (“UIM”) carrier is still entitled to receive the full amount of a subsequent jury verdict from the defendant. Llewellyn v. White, 297 Va. 588 (2019). In Llewellyn, the plaintiff was seriously injured in an automobile accident. The plaintiff had $1 million in UIM coverage, while the defendant had $250,000 in liability coverage. Prior to trial, the plaintiff settled her potential claims against her UIM carrier for $750,000. A release of all claims was given to the UIM carrier only, and the UIM carrier agreed to waive subrogation. The then went to trial and the jury awarded plaintiff $1.5 million in damages against the defendant. The defendant moved to reduce the verdict and apply Virginia’s statutory offset from the plaintiff’s $750,000 settlement with the UIM carrier, meaning she would only be responsible for the $750,000 difference. Va. Code § 8.01-35.1 provides, in pertinent part, that when a release is given to one of two or more persons liable for the same injury, any amount recovered against the other person(s) shall be reduced by the amount stipulated by the release. The trial court declined to reduce the verdict. The Supreme Court of Virginia first determined that a UIM carrier is not a “person liable for the same injury,” as its obligation to pay arises only from contract, not from tort. The jury found that the defendant failed to exercise ordinary care, and that failure caused the plaintiff to suffer personal injuries. Because...