by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. The issue of priority of coverage arises on a daily basis for attorneys and claims examiners alike in the world of insurance defense, and are often a source of headache and confusion. In the recent case of Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch., the Supreme Court of Virginia shed some light on how to properly determine the priority of applicable insurance coverage. 2017 Va. LEXIS 52 (Va. Apr. 13, 2017). In Nationwide, the Supreme Court determined the priority of applicable insurance policies involved in an underlying civil suit arising out of a fatal car accident. Two companies, East Coast and Rodriguez Construction, entered into a subcontract for construction services. East Coast loaned a work truck to Rodriguez under this contract. One of Rodriguez’s employees was operating that vehicle in the course of his employment when he struck another vehicle. The driver of the other vehicle died as a result of the accident and his Estate filed a wrongful death suit against the driver and East Coast. East Coast was eventually nonsuited from the matter, leaving only a potential judgment against Rodriguez’s employee. The issue before the Supreme Court was priority of coverage for the employee. At the time of the accident, East Coast was insured under two Erie policies – (1) Erie Auto Policy and (2) an Erie Umbrella Policy. Rodriguez, on the other hand, was insured by Nationwide and had the following policies – (1) Nationwide Auto Policy (2) Nationwide CGL Policy, and (3) Nationwide Umbrella Policy. The subcontract between East Coast and Rodriguez required...
by KPMLAW | Apr 17, 2017 | KPMBlog, News, Uncategorized
Written by Brian A. Cafritz, Esq. It’s not uncommon for a restaurant or retail customer to argue that, although his own actions contributed to his injuries, a particular employee of the defendant had been aware of the Plaintiff’s peril and took no steps to prevent an accident. Of course, this argument concedes that a plaintiff’s own actions were negligent. Nevertheless, for decades, Virginia plaintiffs have unsuccessfully tried to avoid the harsh consequences of contributory negligence by asking courts to invoke the “Last Clear Chance” doctrine. This doctrine was designed to prevent a defendant from escaping liability when it was aware of the plaintiff’s predicament and could have prevented the accident but failed to do so. The doctrine, however, has been more of a law school theory that was rumored and never seen, as the Virginia Supreme Court rarely, if ever, allowed it to apply in actual cases. That changed last month in the case of Estate of Coutlakis v. CSX Transportation, Va Sup. Ct. Record 60277, when the Virginia Supreme Court relied on the Last Clear Chance doctrine to overrule a trial court’s decision to dismiss Plaintiff’s Complaint on Demurrer. In Coutlakis, the plaintiff was walking adjacent to railroad tracks while listening to music through his earphones. Tragically, he was killed when he was struck from behind by an object sticking out of a train as it passed him along the tracks. Although the decedent had no idea the train was approaching him from behind, it was clear that his choice to walk along those tracks was negligent. The Plaintiff, however, argued that the train conductor had the last...
by KPMLAW | Apr 17, 2017 | KPMBlog, News, Uncategorized
Written by Randall C. Lenhart, Esq. Edited by Janeen B. Koch, Esq. Whether or not a plaintiff filed a bankruptcy petition normally comes up in litigation cases in Virginia when the defense is trying to challenge a plaintiff’s medical bills. This is so because some Virginia courts have determined that a plaintiff cannot recover for the amount of her medical bills that have been discharged in bankruptcy. As a result, this bankruptcy issue functions as a limited exception to the collateral source rule. However, the Supreme Court of Virginia recently addressed another bankruptcy issue that should not be overlooked. In Ricketts v. Strange, et al., 796 S.E.2d 182, 2017 Va. LEXIS 5 (February 16, 2017), the plaintiff filed a personal injury lawsuit shortly before the two year statute of limitations expired on her claim against the defendant. After the defendant learned that the plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Virginia, he filed a motion for summary judgment and argued that the plaintiff lacked standing to file her complaint. The defendant asserted that the plaintiff’s personal injury claim should have been brought by the bankruptcy trustee because the personal injury claim had not been properly exempted from the bankruptcy estate. In granting the defendant’s motion for summary judgment, the circuit court determined that because the plaintiff “failed to disclose [her claim against the defendant] with the requisite reasonable particularity under the circumstances,” it “remained part of the . . . bankruptcy estate, [and was] assertable only by the trustee in bankruptcy.” The real problem for the plaintiff...
by KPMLAW | Apr 15, 2017 | KPMBlog, News, Uncategorized
Written by Danielle Banducci, Esq. Edited by Rachel Riordan, Esq. Can you ever win by losing a workers’ compensation claim? Certainly, we are all familiar with analyzing whether the time and expense of defending a particular claim or issue is worth the victory. However, a less frequent question is whether accepting a workers’ compensation claim, even with its attendant medical and wage-loss exposure, is worth keeping the case out of the courtroom in a civil suit against the employer. Section 65.2-307 of the Virginia Workers’ Compensation Act provides for what is commonly known as the “Exclusivity Rule” – the proposition that if an injury comes under the purview of the Workers’ Compensation Act, the employee cannot sue the employer for that injury: “The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee…” This is consistent with the policy concerns underlying the Act: making it easier and faster for employees to receive compensation from their employers for medical expenses and lost wages, in exchange for limiting the type and amount of recovery available. In analyzing this rule, it is helpful to divide workers’ compensation claims into three categories. At one extreme, there are injuries that are clearly compensable under the Act. These cases easily trigger the Exclusivity Rule. At the other, there are injuries that clearly fall outside the Act’s scope (e.g., the injured worker is not an employee). These cases are not barred by...
by KPMLAW | Apr 15, 2017 | KPMBlog, News, Uncategorized
Written by Brian Snyder, Esq. Edited by Bill Pfund, Esq. Virginia Federal Court Upholds Bad-Faith Claim Against 1st-Party Insurer First-party bad faith claims arise when an insurer refuses to a pay a claim without a reasonable basis or even if the insurer has a reasonable basis for denial, failing to properly investigate the claim in a timely manner. Va. Code § 38.2-209 allows insured to recover cost and reasonable attorney’s fees in declaratory action if trial court determines that insurer was not acting in good faith. Under Va. Code § 8.01-66.1A, the insured’s evidentiary burden is preponderance of evidence standard. An insurer which is found to have operated in bad faith could be liable for damages far in excess of the policy limits. Recently, in Great Am. Ins. Co. v. GRM Mgmt., LLC, the United States District Court for the Eastern District of Virginia, Richmond denied an insurer’s motion to dismiss a bad-faith claim arising out of the insurer’s denial of its insureds’ claim for property damage and loss of business income following the theft of rooftop air conditioning units from the insureds’ hotel. The ruling is significant because it illustrates that Virginia law supports first-party bad faith claims against insurers. The case involved a business insurance policy issued by Great American Insurance Company (“GAIC”) to GRM Management, LLC, and SN Holdings (“Insureds”) covering the Richmond Magnuson Grand Hotel and Convention Center (“Hotel”). The loss involved the theft of multiple HVAC units from the roof of the Hotel and resulting in further damage to the property and loss of business income. GAIC investigated the loss and subsequently issued...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized
Written by Kevin Kennedy, Esq. Edited By Janeen Koch, Esq. Plaintiffs injured on the job often look for an entity beyond their own employer who could be an additional source of recovery. While an employee’s action against his employer is widely known to be limited to a worker’s compensation claim, Virginia law has an established history that bars many claims against independent contractors or other third party defendants. Careful analysis of the status of the parties involved in a suit can raise this valuable defense and dramatically shift the posture of the case when a plaintiff is seeking double recovery. Virginia courts have consistently stated that the Worker’s Compensation Act was intended to be broadly construed. “It was the legislative intent to make the [Worker’s Compensation Act] exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby.” Feitig v. Chalkley, 185 Va. 96, 102, 38 S.E.2d 73 (1946). In other words, the Act was intended to give certainty to the parties of their rights and liabilities and courts will look with closer scrutiny at a plaintiff who was provided with worker’s compensation coverage and who is now seeking additional recovery. The “exclusivity provision” that is the basis for barring improper additional claims reads as follows: The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee,...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized
Written by Kate Adams, Esq. Edited by Janeen B. Koch, Esq. Having a system in place to save electronic data for some period of time, and then have it automatically deleted may not be found sufficient to overcome the issue of spoliation of evidence. In Jenkins v. Woody, a 2017 U.S. District Court case, the issue of spoliation of video evidence was analyzed to determine whether a Sheriff took all proper steps to preserve a missing video that recorded the last hours of Ms. Jenkins’s detention prior to her death. The Plaintiff claimed that Sheriff Woody intentionally destroyed or failed to preserve the videotape footage. In the Jenkins case, the Plaintiff made a request under the Freedom of Information Act to obtain the video in question showing Ms. Jenkins in her cell prior to her death. The request was received on the 24th day after Ms. Jenkins’s death, and after the Internal Affairs Division (IAD) investigation had already begun. The recording equipment was set up to be saved on the server for 30 days, and after that it would be overwritten with new data. But, as the Sheriff explained, the issue was the cameras “were recording more than they were supposed to record because the motion sensitivity was set too high, and therefore the amount of expected data was taken up quicker than 30 days.” Therefore, when the FOIA request was made, the video had already been deleted and was unable to be recovered. The Court analyzed two issues: first, should Sheriff Woody reasonably have anticipated litigation regarding Ms. Jenkins’s death; and second, should Sheriff Woody reasonably have known...
by KPMLAW | Mar 20, 2017 | KPMBlog, News, Uncategorized, Updates
Written by Bill Pfund, Esq. Virginia has a series of “Equine Activity” statutes, § 3.2-6200-§ 3.2-6203 that say that a person shall not be liable for an injury to or death of another resulting from the intrinsic dangers of horse riding (“equine activities”), and that no participant shall have any claim against, or recover from, any other person for injury or death of the participant resulting from the intrinsic dangers of equine activities. Intrinsic dangers of equine activities is defined as those dangers or conditions that are an integral part of equine activities, including: (i) the propensity of horses to behave in ways that may result in injury, harm, or death to persons on or around them; (ii) the unpredictability of a horse’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (iii) certain hazards such as surface and subsurface conditions; (iv) collisions with other animals or objects; and (v) the potential of a participant acting in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant’s ability. The Virginia statute goes on to say that no participant, or the parent or guardian of a participant, who has knowingly executed a waiver of their rights to sue, or agrees to assume all risks specifically enumerated under the statute, may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver must give notice to...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media. Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker? There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Mats are such a common part of daily and office life that you probably don’t think much about them. We have doormats in front of our houses and you’ve probably seen long, rubber mats in restaurant kitchens that protect against slips and falls, to name just two common examples. Unsurprisingly, tripping injuries involving mats come up all the time in workers’ compensation law. Even though these injuries occur regularly, the law does not offer a clear test for when an injury involving a mat is compensable. This article discusses the legal factors that the Commission will consider to decide when a fall is compensable. Hopefully it will provide guidance on questions to ask during recorded statements. The Law A basic legal inquiry for determining compensability in Virginia is whether there is a “causal connection” between an injury and the “conditions under which the employer requires the work to be done.” Combs v. Va. Elec. & Power Co., 259 Va. 503 (2000). When the general public is exposed to “similar risks” as those causing the employee’s accident, the accident is not compensable. Id. Based on this test alone, it would seem that many, if not most injuries involving mats would not be compensable since mats are such a common part of daily life. However, the analysis the Commission will apply is highly fact-specific and there seem to be just as many cases where the Commission found that a fall involving a mat was compensable as those finding the injury not compensable. The Court of Appeals has decided a couple of...
