by KPMLAW | Feb 28, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month. Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator. Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity. The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally. There must be such parties to the record as can...
by KPMLAW | Feb 20, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. Virginia law provides compensation for “permanent and total incapacity” in catastrophic cases, such as where the employee has sustained a severe brain injury, loss of multiple body parts in the same accident, or injury resulting in total paralysis.[1] Due to the severity of these injuries, perm total claims are often some of the most expensive and challenging cases faced by employers and claims adjusters in Virginia. On December 22, 2016, the Virginia Workers’ Compensation Commission issued an opinion that appears to support a limited defense against an ongoing permanent and total disability award. Unlike temporary total disability (TTD) benefits, compensation that is paid for permanent and total incapacity is not subject to a 500-week limit and may continue for the Claimant’s lifetime.[2] Nevertheless, the Full Commission’s recent opinion in Robert Withers v. W.A. Fisher & Son Inc., Electrical Co., File No. 1825974 (December 22, 2016) suggests that even in cases of permanent and total disability, if the Claimant fails to cooperate with medical treatment the employer may be able to file an application to terminate ongoing compensation. In Withers, the parties agreed the Claimant had sustained a brain injury, and on August 2, 2007 a Stipulated Order was entered in which both sides agreed the Claimant’s brain injury was so severe that it rendered him permanently unemployable. The Employer paid compensation pursuant to the Award for permanent and total disability beginning October 17, 2006. On April 4, 2016, the employer filed an Application for Hearing which sought to terminate the outstanding PTD award based on the Claimant’s unjustified refusal...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Christopher Bergin, Esq. Edited by Brian A. Cafritz, Esq. Restaurants that choose to keep its doors open until the early morning hours often face the risk of dealing with unruly, intoxicated patrons. At best, these unruly patrons might become a nuisance for other guests. At worst, they can engage in physical altercations, damaging other property or injuring other patrons. Thus, the question arises, is the restaurant owner liable for injuries caused by its patrons? Fortunately, in Virginia, restaurant owners generally do not have a duty to warn or protect their customers from the criminal acts of others. Indeed, on November 7, 2016, the District Court for the Eastern District of Virginia, recently reinforced this rule in Wyatt v. 90 Grados Rest., Sports Bar & Club LLC. In Wyatt, the plaintiff was shot by another patron in the early morning of January 20, 2014 at 90 Grados Restaurant, Sports Bar & Club LLC, (“90 Grados”) in Manassas, Virginia. At the time of the shooting, 90 Grados had been hosting a party featuring live entertainment from a well known local band. By law, 90 Grados was prohibited from selling or permitting alcohol to be consumed on the premises from 2:00 AM to 6:00 AM. Thus, shortly before 2:00 AM, 90 Grados’s security team began traveling through the establishment, requesting patrons to discard their beverages. One patron, Jeremiah Pullen, “became belligerent” when he was told to throw out his drink. As such, security forcibly escorted Pullen out of the restaurant and into an adjacent parking lot. According to the Plaintiff’s complaint, this adjacent parking lot was dimly lit and had...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Gary Reinhardt, Esq. The Virginia Administrative Code provides the framework for insurer market conduct. Recently, the Bureau of Insurance (BOI) proposed changes to Chapter 400 of the Virginia Administrative Code, “Rules Governing Unfair Claim Settlement Practices.” These “rules” currently “define certain minimum standards which, if violated with such frequency as to indicate a general business practice, will be deemed to constitute unfair claim settlement practices.” These changes could significantly impact market conduct issues and audits. The proposed amendments touch just about every aspect of the regulations. For starters, the BOI even changes the “Scope” of 14 VACS-400-10 to “Purpose and Scope” and provides a lengthier explanation of these regulations: “The purpose of this chapter is to set forth minimum standards for the acknowledgement, investigation, and disposition of claims . . .” The BOI tweaked many of the definitions contained in 14 VAC5-400-20. The BOI adds definitions for such things as “Documentation,” “Estimate” and even “Person.” Of particular interest is the addition of a “Proof of Loss” definition. While most view “Proof of Loss” as a form completed by the insured as part of the insured’s policy obligations, the BOI actually broadens this definition, defining “Proof of Loss” literally. The proposed definition is “all necessary documentation reasonably required by the insurer to make a determination of benefit or coverage.” This will certainly create confusion during audits when the BOI seeks “Proof of Loss” in the file. The amendments look to expand the carrier’s duties during audits in amended 14VAC5-400-30. While the current version is vague, the proposed revision requires an insurer keep records so that “each document within...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by C. Alex Weaver, Esq. Edited by Janeen B. Koch, Esq. Voice-command technology has bridged the gap from science fiction to reality. Unfortunately, some people are learning that there are potential legal consequences for the conversations you have with your electronic devices. Groundbreaking Litigation The use of evidence obtained from voice-command technology in the courtroom is a modern reality. Prosecutors in Arkansas are attempting to obtain recordings from an Amazon Echo device (running Alexa) for use in a murder trial.[1] Prosecutors have requested access to all “audio recordings, transcribed records, text records and other data” from the Defendant’s Echo from the two-day period during which the victim is believed to have been killed. A judge has authorized a warrant for the materials. However, Amazon has fought the warrant and refused to provide the recordings. This case has captured national attention for two reasons. First, this appears to be the first time this type of evidence has been sought for use in a court case. Second, the public appears surprised this technology is always recording. Voice-Command Technology and How It Works According to the Pew Research Center, over 70 % of American adults have smart phones.[2] Nearly all of those devices contain some form of voice-command technology. The two most common technologies are Siri (on Apple devices) and OK Google (on Android devices). Both Siri and OK Google have similar modes of operation. They utilize a smartphone’s microphone to passively monitor conversations. When the programs hear certain trigger words (such as “Siri” or “Okay Google”) they send the recorded information to a corporate server which uses complex computer...
by KPMLAW | Feb 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by J.H. Revere, Esq. Springtime is just around the corner and with it people will emerge from their winter cocoons and begin outdoor activities again. One area where these activities can give rise to conflicts and litigation are cyclists on the roads and highways of Virginia. Since warmer days will be here before you know it, it makes sense to review some of the rules of the road, how they apply to bicycles, and how one might consider these rules (laws and ordinances) when investigating a claim. “Bicycle’ means a device propelled solely by human power, upon which a person may ride either on or astride a regular seat attached thereto, having two or more wheels in tandem, including children’s bicycles except a toy vehicle intended for use by young children. A bicycle is a vehicle when operated on the highway.” §46.2-100 Code of Virginia, 1950, as amended. While on a public roadway, bicyclists are subject to the same rules and regulations as other highway users, “unless the context of the provision clearly indicates otherwise.” See §46.2-800, Code of Virginia, 1950, as amended. While on a walkway or sidewalk, a bicycle rider has the same obligations as a pedestrian but must yield to other pedestrians. See §46.2-904 Code of Virginia, 1950, as amended. Bicyclists are expected to obey traffic signals with certain exceptions: “[I]f a driver of a motorcycle or moped or a bicycle rider approaches an intersection that is controlled by a traffic light, the driver or rider may proceed through the intersection on a steady red light only if the driver or rider (i) comes to...
by KPMLAW | Jan 16, 2017 | KPMBlog, News, Uncategorized
Written by Stephanie Gacek Cook, Esq. There have been a number of suits filed by Virginia Polytechnic Institute & State University (“Virginia Tech”) against several general contractors who constructed various buildings on campus. In turn, these general contractors have filed suit or at least initiated claims against many of its subcontractors who performed work on these projects. The statute of limitations for claims filed by a state agency or public institution, such as Virginia Tech, is unlimited. According to Va. Code Ann. 8.01-231, “[n]o statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to any proceeding by or on behalf of the same.” In other words, no statute of limitations applies to the state of Virginia or its governmental bodies and agencies. Recently, however, the Supreme Court of Virginia issued an opinion that makes it clear that this unlimited statute of limitations does not also apply to claims made by general contractors against its subcontractors on projects involving state agencies. See Hensel Phelps Construction Company v. Thompson Masonry Contractor, Inc., et. al., 2016 Va. LEXIS 166, 791 S.E.2d 734. In Hensel Phelps, Virginia Tech awarded Hensel Phelps a contract to construct the Student Health & Fitness Center in 1997. The work was substantially completed in 1998. Virginia Tech issued final payment to Hensel Phelps in 1999, and Hensel Phelps issued final payment to its subcontractors also in 1999. One subcontractor was asked to fix a problem covered by their warranty, and it concluded all work by June of 2000. Virginia Tech subsequently discovered other, defective work and elected to repair...
by KPMLAW | Jan 16, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Brian Cafritz, Esq. Recently, in Robinette v. Wal-Mart Stores, Inc., Case 2:15-cv-00003, the USDC Western District of Virginia barred a Plaintiff’s forensic engineer from testifying as to the safety of a merchandising display. This decision has helped reinforce Virginia’s rule against the method theory of liability and has further bolstered recent decisions preventing experts from expressing opinions that are not based on industry standards. In Robinette, a Plaintiff was injured when a kettlebell weight fell from a shelf onto the Plaintiff’s foot. The Plaintiff contended that Wal-Mart should have known of the dangers posed by displaying weights in this manner, and that the kettlebell shelf needed a guard railing to make it safe. Plaintiff’s expert opined that only a small amount of horizontal force was needed to tip over the kettlebell, and because there was no railing or other means to secure the kettlebells, the display was a “dangerous and defective” condition. The Court granted the Defendant’s motion to strike this expert witness and ruled that he was simply not qualified to offer opinions on whether Wal-Mart’s merchandising practices were appropriate. The Court noted that the Plaintiff’s expert was a forensic engineer. He had no specialized training or professional experience in retail sales. His training was strictly limited to engineering. The Court acknowledged that the expert had some experience working on other falling merchandise cases, but his involvement in those prior cases had been limited to calculating the impact force of the falling merchandise, not determining the general stability or safety of retail displays. As the expert did not have any relevant retail experience, he could not...
by KPMLAW | Dec 2, 2016 | Uncategorized
Busy Workers’ Compensation defense Practice Group is seeking an experienced Worker’s Compensation Legal Assistant to support attorney group. Must have 3+ years Worker’s Compensation experience. This position requires using Webfile, assisting with preparation of correspondence, discovery, motions, and pleadings; drafting subpoenas for medical records and other duties . Work is fast paced and attention to detail is critical. Duties include: Litigation support Monitoring files and dairying for deadlines Downloading and submitting documents through Webfile database Scheduling depositions and other meetings Processing and scanning mail, medical records and other documents into electronic database. Paying vendor invoices Answering phones Tracking billable time Other clerical duties, such as handling mail, faxing, scanning, using copying machine. Minimum Requirements: Motivated, strong work ethic, hard worker Organized, excellent attention to detail Good team worker, ability to work well with others Good verbal and written communication skills Computer literate Good phone etiquette Ability to work in high paced environment Work well under pressure Well-qualified applicants can submit a cover letter, resume and salary requirements to claire.carr@kpmlaw.com....
by KPMLAW | Nov 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Francie Belton Georges, Esq. In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding? There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement. Termination by Agreement The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary...
