by KPMLAW | May 24, 2016 | KPMBlog, News, Profiles, Uncategorized
AM Best, the oldest and most widely recognized provider of ratings, financial data and news with an exclusive insurance industry focus, recently featured KPM’s Brian Cafritz on their “Best’s Directories Insurance Law Podcast.” Brian has been closely following news and rulings related to restroom access for transgender individuals. Listen to the podcast here or view the transcript below. You can follow Brian on Twitter at @briancafritz. John Czuba: Welcome to the “Insurance Law Podcast,” the broadcast about timely and important legal issues effecting the insurance industry. I’m John Czuba, managing editor of Best’s Directory of Recommended Insurance Attorneys. We’re pleased to have with us today attorney Brian Cafritz from KPM LAW in Richmond, Virginia, with additional offices in Fairfax, Norfolk, and Roanoke, Virginia. Brian is a partner in the firm, and helped to expand the firm’s regional defense network. He focuses his practice on the defense of Fortune 500 companies that operate under large self-insured retentions. He co-founded the National Retail and Restaurant Defense Association to promote the education and communication channels of industry leaders and counsel. Brian was elected to the first two terms as the association’s first president. He is also the only Virginia attorney selected to IALDA, a defense network dedicated to the defense of the amusements and leisure industry. We’re very pleased to have you with us today, Brian. Brian Cafritz: Thank you very much, proud to be here. John: Today’s topic is on legal issues pertaining to transgender restrooms, and Brian this has been a very topical issue of late, can you comment on which states have been the most impacted? How common is...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. With the ubiquitous nature of social media, more and more retail and restaurant establishments are requiring confidentiality clauses in settlement agreements to contain strong penalties that deter a breach. In an effort to streamline litigation should a breach occur, those provisions often contain liquidated damages clauses, which state the parties agree a breach of confidentiality would result in a return of all settlement proceeds. This begs the question, is this provision enforceable? If a plaintiff breaches confidentiality, can you get the settlement funds back? The Supreme Court of Virginia has held, and the Eastern District of Virginia has recently reaffirmed, that parties “may agree in advance about the remedy resulting from a breach, including damages, but only when (i) the actual damages contemplated at the time of the agreement are uncertain and difficult to determine with exactness and (ii) the amount fixed is not disproportionate to the probable loss.” Job v. Simply Wireless, Inc., 2015 U.S. Dist. LEXIS 171535, *11 (E.D. Va. Dec. 22, 2015). A breach in confidentiality would be a good example of when actual damages are unknown, as the facts surrounding the breach are also unknown at the time the release is negotiated and executed. The bigger question for a restaurant or retail establishment to consider is whether or not the amount of damages is proportional to the probable loss. To help answer that question, Virginia courts will allow discovery into a liquidated damages clause to determine if the “stipulated damages are grossly in excess of the actual damages suffered by the non-breaching party.” O’Brian...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized
Idiopathic and unexplained accident cases are on the rise as more employees are taking medications for a myriad of health issues. An idiopathic accident is one where the injury is caused by a preexisting personal disease of the employee (diabetes, seizures, etc.) and can be compensable if the employment increases the dangerous effects of the condition. Typically, compensable idiopathic injuries are found in motor vehicle accident and fall from ladder cases. Unexplained injuries are not compensable because the claimant cannot prove that the injury arose out of the employment. In an unpublished decision, Burney-Vivens v Community Corrections Administration, the Court of Appeals addressed the idiopathic v. unexplained injury issue. In Burney-Vivens the claimant had a history of migraines. She had also sustained a compensable back injury in 2012 for which she was still taking medication. She was driving an employer provided car while on assignment for her employer. Because she was driving she did not take her back pain medication that day. She was involved in a single car accident in which her car left the road and went down an embankment. She testified that at a certain point in time on the trip, after driving past a sign for the Town of Boones Mill her vision diminished and started blurring. The next thing she remembered was crawling out of the car. She did not remember what caused her to run off the road. At the hearing, the claimant alleged that her accident was caused by an idiopathic condition of blurred vision due to her pre-existing migraine headaches. In the alternative, she alleged that she blacked out because of...
by KPMLAW | May 24, 2016 | KPMBlog, News, Profiles, Uncategorized
Written by Beth Gould, Esq. Companies increasingly face competing demands and challenges associated with the desire to provide convenient online spaces for their clients to conduct business while also ensuring those spaces are safe from data breaches. We are all familiar with, and seem to constantly hear about, data breaches due to intentional hacking by third parties who seek access to companies’ websites and other online databases in order to steal consumers’ information. However, there are also more passive data breaches which can occur due to a company failing to fully secure an online space. In the latter case, rather than a third party actively seeking entry into a companies’ online consumer information, a company may inadvertently fail to shore up a vulnerability in an online space it provides to its consumers, potentially leaving consumer information available to the public. Both types of data breach are risks which an insurer may consider insuring or may wish to forego insuring. If an insurer wishes to forego covering either, or both, sort of data breach, it must clearly address that when drafting its policy. The United States Court of Appeals for the Fourth Circuit recently considered a case involving a passive sort of data breach, affirming in an unpublished opinion that under the applicable insurance policies, a healthcare recordkeeping company must be accorded a defense by its insurer against claims by consumers that the company had made consumers’ private healthcare information accessible online to the general public. On April 11, 2016, the Fourth Circuit Court of Appeals ruled on an appeal by the plaintiff in the declaratory judgment action, Travelers Indemnity...
by KPMLAW | May 24, 2016 | KPMBlog, News, Uncategorized
I originally planned to go straight into law school and had taken the LSATs and sent off applications. My diversion into opera and theater resulted from volunteering during my last semester at UVA to sing a small opera scene for a doctoral student doing some of her research in the music department. She had been unearthing old French operas from the Baroque period and had to direct a scene from one as part of her program. She asked for students from the singing groups to assist her and I volunteered. I sang the tenor part of Sancho from “Don Quichotte chez la Duchesse” by Joseph Boudin de Boismortier. After completing the performance, the doctoral student-director told me she thought I should study opera and contacted four teachers in New York and Philadelphia to have me sing for them. That summer, I sang for two of the teachers in the small practice studios in Carnegie Hall. Although I was not ready to move to New York at that time, I found a teacher in Washington, DC and two years later auditioned for and received a full scholarship to study opera at the Academy of Vocal Arts in Philadelphia. I quickly learned I did not have a Pavarotti-sized voice, but found a lot of good work singing secondary character roles in opera and operetta, lead roles in American musical theater, and oratorio in Philadelphia, Minneapolis, Chicago, Dayton, in Wisconsin, and at rotating repertory theaters in Pennsylvania, Virginia, and Florida. As with a lot of struggling performers, I did a lot of different things to try to branch out and pay the...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. A recent unpublished opinion by the Virginia Court of Appeals provides important guidance on what a claimant must show to prove that an injury “arose out of” his or her employment. In United Airlines, Inc. v. Taylor, No. 1169-15-4, 2016 Va. App. LEXIS 72 (Va. Ct. App. March 15, 2016), the claimant’s work accident was found non-compensable despite the fact that he lost his balance and fell down several stairs while carrying items totaling around 35 pounds. This case should serve as a reminder that the claimant must show not only that he was injured at work, but that “a condition of the workplace either caused or contributed” to the injury. See Southside Virginia Training Ctr./Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202, 455 S.E. 2d 761, 763 (1995). In other words, the fact that the claimant is carrying something at the time of his injury does not necessarily mean the accident is compensable. In Taylor, the claimant was employed as a ramp agent for United Airlines. His job duties included unloading baggage and other cargo from aircraft. On the day of the accident he was walking up a set of metal stairs while holding two strollers under his arms. Taylor estimated the stroller in his right hand weighed approximately thirty pounds, while the stroller in his left hand weighed about five pounds. As he was walking up the stairs his right knee “popped,” causing him to fall down the stairs and onto his back. His knee then popped back into place. Taylor admitted that the stairs...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Bryan Snyder, Esq. Edited by Chip Kalbaugh, Esq. Recently, the Supreme Court of Virginia was provided the opportunity to reconsider its position on whether or not it recognizes an independent claim for spoliation of evidence. Spoliation of evidence is typically defined as the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. Initially, the issue arose from a workers’ compensation case when Steve E. Johnson, an employee of Southern States Cooperative Inc. was badly burned by a space heater while working in a warehouse in Henrico County. His injuries occurred when his clothes were ignited as he attempted to start a propane heater on a cold February morning in 2013. Johnson pursued a workers’ compensation claim for both medical damages and lost wages. He claimed that the space heater was a product normally sold by Southern States Cooperative. In addition to his workers’ compensation claim, Johnson also intended to seek recovery on a possible product defect claim, and requested that Southern States preserve the propane heater as evidence. Later, when Johnson’s lawyers and experts requested to examine the heater, they learned that Southern States had thrown it away. In response, Johnson’s lawyers filed a $7.5 million lawsuit for spoliation of evidence arguing that Southern States “negligently interfered with Johnson’s right to pursue a products liability suit.” The elements of a claim for spoliation of evidence are: (1) pending or probable litigation involving the plaintiff; (2) knowledge on part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by the defendant designed to disrupt plaintiff’s...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Gary Reinhardt, Esq. Glass Companies are battling insurers throughout the country claiming that the insurers’ glass claim programs amount to improper “steering.” One particularly active group filed a petition titled “National Right to Fair Trade Petition.” This petition argues that insurers’ glass programs may violate antitrust laws. In order to be ready for such claims, the insurer needs to act consistently and adhere to its insurance policy. A recent skirmish between a glass repair company and insurers resulted in an early win for the insurers. In Clear Vision Windshield Repair, LLC, as assignee of Star Davis v. Elephant Insurance Company (numerous companion cases accompanied this ruling involving Erie Insurance and First Liberty), the Henrico Circuit Court granted the insurers’ demurrer and dismissed Clear Vision’s cases, with prejudice. Clear Vision alleged that it performed windshield chip repair on windshields of each insured. Clear Vision attempted to gain an assignment of insurance benefits from each insured. As part of its contract for services, Clear Vision sought this assignment of insurance policy benefits and agreed not to pursue the insured personally for the cost of its services (costs were also disputed but the Court never reached that issue). All of this took place, including the alleged repairs, prior to the claim being reported to the insurer. Neither the insured nor Clear Vision obtained consent from the insurer for this attempted assignment. The insurers refused Clear Vision’s demand for payment under the policy. In response, Clear Vision sued each insurer in General District Court seeking not only $150 per insured for chip repair(s) but also bad faith double damages, costs and...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
The issue of transgender restrooms continues to evolve, and last week, the Fourth Circuit Court of Appeals in Richmond, Virginia became the first federal court to weigh in on the issue. The ruling comes in the case of G.G. v. Gloucester County School Board. The case has received a great deal of attention due to the recent controversial legislative enactments in North Carolina and other states, which have attempted to legislate which restroom transgender persons must use. G.G. was born female and when the vents of this lawsuit had taken place, had begun hormone therapy. G.G. legally changed his name to a traditionally male name and prior to his sophomore year, informed the school that he was a transgender boy. By all accounts, G.G. lived all aspects of his life as a boy. In late 2014, the Gloucester County School Board prohibited G.G. from using the male restroom in his high school. G.G. sued the School Board on the grounds that the school discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution, and he moved for a preliminary injunction to stop the school’s restroom prohibition. The District Court denied the injunction, holding that G.G. lacked sufficient evidence after it refused to consider hearsay expert testimony on the topic. It further held that using a unisex bathroom in the school was not unduly burdensome compared to the hardship to the other students caused by G.G’s presence in the men’s restroom. Finally, the District Court granted the School Board’s Rule 12(b)(6) Motion to Dismiss the Title IX allegations, claiming that requiring G.G. to use...
by KPMLAW | Apr 24, 2016 | KPMBlog, News, Uncategorized, Updates
KPM LAW is honored to have two of its attorneys selected to the 2016 Virginia Super Lawyers list, as well as an attorney selected to the 2016 Virginia Rising Stars list. Partners Claire Carr and Brian Cafritz, both of the Richmond office, have been named to the 2016 Virginia Super Lawyers list, while Rachel Riordan, also a partner in the Richmond office, has been named to the 2016 Virginia Rising Star list for a second time. Super Lawyers, a part of Thompson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of recognition and professional achievement. Super Lawyers utilizes a patented and multiphasic selection process that includes peer nominations, evaluations, and independent research by Super Lawyers. The Super Lawyers List recognizes no more than 5% of Virginia attorneys while the Rising Star list recognizes no more than 2.5%. Please join us in congratulating Claire, Brian and Rachel on their achievements in the...
