by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Danny Royce, Esq. Edited by Janeen Koch, Esq. Virginia law allows for compensatory and punitive damages against drunk drivers in motor vehicle accident cases. In order to recover punitive damages, the conduct of the defendant must be willful and wanton. There are two types of punitive damages that can be awarded in these cases – statutory and common law. This article will focus on statutory punitives and a recent amendment to the Virginia Code allowing for evidence of defendant’s post-accident conduct in affixing the amount of punitive damages to be awarded. As a preliminary matter, Virginia Code Sec. 8.01-44.5 permits awards of punitive damages for persons injured by intoxicated drivers. The statute states in pertinent part, “[i]n any action for personal injury or death arising from the operation of a motor vehicle…the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” The statute goes on to set forth conditions, which proven at trial, are sufficient to constitute willful and wanton conduct. Pursuant to the statute, a defendant’s conduct “shall” be deemed “sufficiently willful or wanton as to show a conscious disregard for the rights of others” under the following circumstances: a) the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; b) at the time the defendant began drinking alcohol (or during the time...
by KPMLAW | Oct 17, 2016 | Events, KPMBlog, News, Profiles, Updates
A.M. Best recently compiled a panel of insurance risk experts and insurance attorneys including KPM’s Robert Worst, Managing Partner at KPM LAW’s Fairfax office. In this webinar, experts examine what’s at stake, how to protect against risk, and what new risks are emerging in this dynamic sector. View the...
by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Brian A. Cafritz, Esq. Earlier this month the Eastern District of Virginia released its opinion in Snider-Jefferson v. Amigo Mobility Int’l, Inc., 2016 U.S. Dist. LEXIS 109319, which reaffirmed that expert witnesses cannot simply opine on their own ideas about product safety, but must instead base their evaluations upon specific industry standards. In Snider-Jefferson, a plaintiff at a Virginia Wal-Mart store was injured by another customer who was riding a motorized cart, when a sharp metal edge on the cart’s platform struck the plaintiff’s ankle. The plaintiff filed suit against Wal-Mart and the cart manufacturer, alleging that the cart had been defectively designed. Specifically, plaintiff contended the cart platform needed a soft rubber edge or other protective guard to shield the cart from customers. In support of these theories, Plaintiff designated a mechanical engineer, Dr. Bawab, who inspected the cart and created a computer model of the accident. Dr. Bawab concluded that adding a rubber bumper to Wal-Mart’s carts would have been a simple and cost effective solution which would have greatly mitigated the risk of harm caused by Wal-Mart’s carts. Defendant moved to exclude Dr. Bawab and sought summary judgment. Judge Lawrence Leonard of the USDC EDVA (Norfolk Division) granted the motion and dismissed the case. The Court noted that, “[i]n his report, Dr. Bawab did not consider any industry or government standards when assessing the cart’s design . . . . Dr. Bawab failed to perform the recommended [Underwriters Laboratory (“UL”) standard] sharpness testing on the cart’s edge, and Dr. Bawab never indicated whether UL standards required a rubber bumper.” Id. at *13. In depositions,...
by KPMLAW | Sep 12, 2016 | Events, KPMBlog, News, Updates
Gary Reinhardt, General Counsel to the IASIU and state police “Red Flag” Instructor will be speaking at several upcoming events: September 12-15 “The Internet of Things” International Association of Special Investigation Units International Seminar, Las Vegas, NV. September 27-30 “Prosecutors, Law Enforcement & Special Investigation Units: Working Together to Fight Fraud” Red Flag Investigation and Prosecution of Insurance Fraud, Huddleston, VA, Smith Mountain Lake, Mariners Landing Resort & Conference Center. October 27 John Messersmith will collaborate with neuropsychologist Dr. Doug Gibson for a presentation on traumatic brain injury at the 7th annual Atlanta Trucking Conference. This year’s seminar is on “The Anatomy & Life of a Truck Accident Claim: Preparing for and Avoiding the...
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Claire Carr, Esq. Recently, the Virginia Court of Appeals ruled that activity taking place over 30-45 minutes constituted an identifiable incident occurring at a reasonably definite time. To prove an “injury by accident” under the Virginia Workers’ Compensation Act, a claimant must show (1) an identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change.” Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007). The Court of Appeals addressed this definition in Van Buren v. August County, Record No. 1975-15-3 (July 19, 2016). Robert Van Buren was a firefighter who responded to a call to aid a 400 lb. man who fell in the shower and broke his leg. Van Buren and another rescue worker used a sheet to make a sling and lifted the man out of the shower, lowered him to the floor, then onto a flat stretcher. They dragged the stretcher down the hall, hoisted him up onto a wheeled stretcher, pushed it down a hill and finally lifted the stretcher up into an ambulance. The events lasted 30-45 minutes. At no point during the actual events did the claimant feel any pain. He first noticed pain in his arm after he closed the ambulance doors. He suggested the delay was due to the adrenaline rush during the rescue. Four days later he reported pain in his shoulder, citing a 2 week history of pain which had become worse after lifting patients all day at work. He...
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Rachel Stewart, Esq. Much to do has been made about the Maryland Court of Appeals’ recent opinion in Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006 (2015) wherein the Court held that a cause of action existed against a home owner for her allowance of under-age drinking at her residence which later resulted in the death of a teen involved in a drunk driving accident. Maryland has historically not recognized social host liability, and there is no dram shop statute imposing liability against a restaurant for the acts of guests who were served despite being visibly intoxicated. Despite this long held position, the plaintiff’s bar has argued that Kiriakos opens the door for social host liability against restaurant owners. However, a close reading of the opinion suggests that Kiriakos is a very narrow holding, and Maryland will continue to adhere to its position that restaurants are not liable for the acts of drivers who were served at their establishments. The Court’s holding in Kiriakos was based on the homeowner’s violation of a criminal law, Md. Code Ann., Crim. Law §10-117(b), which prohibits an adult from knowingly and willingly allowing a minor to possess or consume alcohol at a residence owned or leased by the adult. The Court found that there is a limited form of social host liability sounding in negligence based on the strong public policy found in the criminal statute that only exists when the adult in question acts knowingly and willingly. The basis of the court’s holding was that the statute at issue was intended to protect a specific class of persons, i.e....
by KPMLAW | Sep 12, 2016 | KPMBlog, News, Uncategorized
Written by Erin Slusser, Esq. Edited by Janeen Koch, Esq. KPM LAW is pleased to offer its special Legislative update. This update contains summaries of bills of interest to our readers that were enacted by the General Assembly in its 2016 session and that took effect as of July 1, 2016. This information is taken from the Summary of the 2016 Session of the General Assembly published by the Division of Legislative Services. The abbreviations used are as follows: HB – House Bill; SB – Senate Bill. If you wish to read the entire text of a bill to see how it changed the previously existing law, you may visit the Virginia General Assembly Legislative Services website at http://virginiageneralassembly.gov. Automobile, commercial liability, and homeowners insurance policies; notices: This bill restores the ability of insurers, when sending certain types of notices, including notice of cancellation or nonrenewal of a motor vehicle, commercial liability, or homeowners insurance policy, to use mailing methods for which a certificate of mailing is obtained from the United States Postal Service, provided that certificates of bulk mail are not permissible. The measure also clarifies that Intelligent Mail Barcode Tracing is a permitted first-class mail tracking method and clarifies that insurers are required to maintain records regarding the sending of such notices for one year, regardless of the method used to send the notice. See HB 31; Va. Code Ann. 38.2-231. Structured Settlement Protection Act; amends Act so obligor and issuer may rely on court order. This bill amends the Structured Settlement Protection Act (the Act) to provide that the structured settlement obligor and the annuity issuer...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Author: Lee Hoyle Editor: Brian A. Cafritz In products liability cases, it seems that any entity that touches the product could have liability. Manufacturers, designers, installers, sellers, and repair companies all face exposure for defective products merely because of their relationships to the product. In such cases, defendants have long relied on the “empty chair” defense. The defense, which sounds more dramatic than it is, simply means that a defendant claims that someone else, someone not before the court, is responsible for the injuries. The defense survived a challenge before the Virginia Supreme Court, but the reasoning of the decision may complicate attempts to raise the defense in the future. In Dorman v. State Indus., ___ Va. ___, 2016 Va. LEXIS 77 (June 16, 2016), the plaintiffs were several people who suffered carbon monoxide poisoning from a gas fired hot water heater, which they claimed was the result of the design of the heater. The plaintiffs brought suit against several defendants, but only the manufacturer remained at trial. The theories at trial were negligence and breach of warranty. The manufacturer denied liability on the grounds that the heater was improperly installed and maintained, even though the installer and maintenance companies were not named in the case. At trial, the plaintiffs argued that the defendant could not argue the “empty chair” defense and point the finger at the installer or the maintenance company. They claimed that because Virginia follows Joint and Several Liability, any negligence of the manufacturer made it liable for the whole verdict. As a result, the negligence of another entity was not relevant unless such negligence constituted...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized
Written by Ed Trivette, Esq. Edited by Janeen Koch, Esq. Pokémon Go is a mobile device game that has taken the world by storm. It has been downloaded over 50 million times on Android phones alone. The game is a modern adaption of the card game made popular by Nintendo in the early 2000s. Unlike its predecessors, Pokémon Go has a real-world component. The new game encourages players to “hunt” Pokémon, small magical creatures, in the real-world by using augmented reality to make Pokémon appear through the camera on the player’s cell phone. “You’ll have to stay alert, or it might get away!” Like most new technology, Pokémon Go has serious real-world legal implications. One of the biggest issues involving Pokémon is that many players stare intently at a mobile device screen in order not to miss out on capturing Pokémon in the augmented reality of the app. Of course, hunting Pokémon in augmented reality can make the actual reality of typical pedestrian perils such as traffic, slippery or uneven walking surfaces and elevation changes much more dangerous. Thinking through the pursuit of Pokémon and the potential ensuing accidents could, and likely will, supply a law school torts professor with just the sort of open-ended discussion question that first year law students will eagerly fill pages answering. For business owners and their insurance carriers those hypothetical dangers will become actual premises liability lawsuits in the coming months and years. What Duty is Owed to the Pokémon GO Plaintiff? The legal duty owed hinges upon the status of the Pokémon GO player with respect to...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. Recently, the United States District Court for the Eastern District of Virginia revisited the workmanship and earth movement exclusions of a Commercial General Liability policy and how the ensuing loss provisions impact coverage. In Taja Investments, LLC v. Peerless Ins. Co., 2016 U.S. Dist. Lexis 95760 (July 21, 2016), a wall collapsed during renovation of a row house. The construction company performing the renovations sought coverage for emergency measures to prevent further damage and the cost to restore the property to pre-collapse condition. Investigation revealed that the insured intended to expand a crawl space to create a living area basement. However, the contractors doing the work ignored warnings about performing underpinning during the excavation process. Engineers determined that this failure to underpin the work coupled with unstable soil and clay below the surface caused the collapse. The insured did not dispute this finding. The carrier denied coverage for the loss asserting that the damage was excluded. The insured sued for breach of contract. The Court granted summary judgment for the insurer on both the workmanship and earth movement exclusions. First, the Court stated that the workmanship exclusion “is applicable when the insured’s loss is attributable to the quality of the constructed property and arises from defects in the materials or process used by the insured or its agents to construct the property.” Id. at 9. Because “the cause of the collapse is directly attributable to the acts and omissions of Plaintiff in excavating the entirety of the basement without performing any underpinning to secure the foundation of the walls” the workmanship exclusion precluded coverage. ...
