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UPDATE: Just When You Thought You Knew Everything About Pay and Quit Pursuant 38.2-2206 Here Comes the General Assembly Again!

In 2015, the Virginia General Assembly enacted significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impacted Virginia Code Section 38.2-2206 and added a new statute at 8.01-66.1:1. The stated purpose of these changes was to expedite uninsured and underinsured motorist payments.

Summary Judgment Is Becoming More Viable in Virginia

Written by Kate Adams, Esq. Edited by Bill Pfund, Esq.  Summary judgment in Virginia state courts, unfortunately, has been akin to finding a four leaf clover, we all know it exists but it is rarely ever granted. However, with the passage of Senate Bill 1486 and a recent decision from Judge David Bernhard of Fairfax Circuit Court, the constraints regarding the type of evidence a court may consider when hearing such motions  is expanding, making summary judgment more attainable. As reported in the KPM April 2019 Newsletter, Senate Bill 1486 has passed and went into effect on July 1, 2019 which expands the provisions of Virginia Code §8.01-420 and provides that “discovery depositions under Rule 4:5 and affidavits may be used in support of or opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” Although this change is narrowly tailored to business entities and cases where the amount at issue is over $50,000, this may pave the way for more opportunities to obtain summary judgment in Virginia. A May 24, 2019 ruling by Judge Bernhard addressed the type of evidence a court can consider when ruling on a motion for summary judgment. In HCP Properties-Fair Oaks of Fairfax VA LLC v. County of Fairfax, Judge Bernhard considered “whether a party can use a deposition of a Corporate Designee of an adverse party in support of its “Plea in Bar” seeking the dismissal of an action, in light of the stricture of Virginia Code §8.01-420 on the use of depositions...

Virginia’s Sovereign Immunity Doctrine, Emergency Vehicles, and Uninsured Motorist Coverage

Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. What is Sovereign Immunity? The doctrine of sovereign immunity is “a government’s immunity from being sued in its own courts without its consent.”  Black’s Law Dictionary, 4th Pocket Ed.: “Sovereign Immunity”.  The doctrine is as old as American law itself.  Like many of the initial common law doctrines in America’s jurisprudence, the doctrine of sovereign immunity grew out of British law.  The famous 18th century English legal scholar, William Blackstone, described the reasoning behind the doctrine when he said “the law also ascribes to the king in his political capacity, absolute perfection. . . The king can do no wrong . . . The king moreover, is not only incapable of doing wrong, but even of thinking wrong.”  1 William Blackstone, Commentaries on the Law of England 245 (1809) (emphasis in original). Over the generations, the absolute immunity ascribed to the king by Blackstone has slowly eroded.  For example, the Virginia General Assembly waived sovereign immunity in certain situations when it passed the Virginia Tort Claim Act—Va. Code Ann. §8.01-195.3—which allows citizens to directly sue the Commonwealth.  Despite the gradual erosion of the doctrine, “sovereign immunity is ‘alive and well’ in Virginia.”  Messina v. Burden, 228 Va. 301 (1984). Governmental Employees and Sovereign Immunity As noted by the Virginia Supreme Court, “The Commonwealth of Virginia functions only through its elected and appointed officials and its employees” and “[i]f because of the threat of litigation . . . they cannot act, or refuse to act, the state [itself] also ceases to act.”  James v. Jane, 221 Va. 43 (1980).  This...

Swimming Pool Liability Issues

Summer is in swing and a review of swimming pool liability issues seems in order. First the statutory law on the subject:

Virginia Code § 15.2-921 states in part:

For the purposes of this section:

“Swimming pool” includes any outdoor man-made structure constructed from material other than natural earth or soil designed or used to hold water for the purpose of providing a swimming or bathing place for any person or any such structure for the purpose of impounding water therein to a depth of more than two feet.

Coming Soon: Changes to a Statute Near You

Many of us authorize medical treatment during the investigation of a claim, when the injured worker is unrepresented, and when no claim has been filed in an effort to limit exposure without a formal award being entered. However, your ability to do this without potential longstanding effect is soon coming to an end…As of July 1, 2019, any medical treatment authorized and paid for BEYOND a six month period, will impact the statute of limitations for which an injured worker has to file a claim and will act as a basis for the tolling of the statute of limitations.

Fraud in the Insurance Industry

Written by Porter Peery, Esq. Edited by Bill Pfund, Esq. According  to insurance industry estimates fraud accounts for approximately 10% of the property/casualty insurance incurred losses and adjustment expenses each year (1).  Based on this estimate, between 2013-2017 property and casualty fraud totaled about $30 billion each year. Automobile accident fraud is one of the most widespread and lucrative fraud schemes nationally. The National Insurance Crime Bureau receives over 60,000 questionable claims each year half of which involve auto accidents (2). Of note, these auto accident schemes are becoming more violent, especially in large metropolitan areas, and often involve large organized rings. Closer to home, the Virginia State Police Insurance Fraud Program 2018 Annual Report indicates that $13,566,013 in fraudulent insurance claims were attempted in Virginia in 2018, a 19% increase from 2017. Disturbingly $3,665,817 in fraudulent insurance claims were actually collected in 2018, a 48% increase from 2017. Since insurance fraud is constantly evolving in the present high tech environment, the approach to detect and prevent fraud must regularly change to keep pace.  Insurers have prioritized combating fraud. Approximately 40% of insurers polled by the Coalition Against Insurance Fraud and SAS Institute in 2019 said their technology budgets will be larger. About 90% of the companies which responded said “they use technology primarily to detect claims fraud”, a significant increase from 2016…(3). Insurers are now able to use “predictive and entity analytics” as new information is added which improves detection capabilities for fraudulent activity (4). At the end of the day, however, any flagged accounts must be reviewed by a well-trained claims’ fraud professional. Most insurance companies now have...

New Court of Appeals Ruling on Medical Provider Applications

Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. In a case of first impression, the Court of Appeals of Virginia has interpreted Virginia Code §65.2-501.1 in Roanoke Ambulatory Surgery Center v. Bimbo Bakeries , USA, 69 Va.App. 675, 822, S.E.2d 675 (2019). In Bimbo Bakeries (BB), the Claimant was injured while working for BB on February 23, 2015.  RASC provided treatment to the Claimant. On April 29, 2015, RASC performed a rotator cuff repair surgery.  RASC submitted a bill of $24,000 for the surgery to BB.  On June 12, 2015, BB delivered payment of $5000 to RASC and a “Review Analysis” that the balance of the bill was objected to as being in excess of the amounts authorized by law. RASC performed a second surgery on the Claimant on September 18, 2015 and submitted a bill for $12,000 to BB. On October 30, 2015, BB delivered to RASC payment of $3000 and a “Review Analysis”, again arguing that the bill was in excess of amounts authorized by law. The Claimant filed his Claim for Benefits on June 27, 2016 for the accident of February 23, 2015.  On July 28, 2017, the Commission approved an agreement between the Claimant and BB for lifetime medical benefits for treatment of his right shoulder rotator cuff injury. On September 1, 2017, RASC filed a claim with the Commission requesting full payment for the services it rendered to the Claimant. The Deputy Commissioner found that the claim was not time barred. The Deputy Commissioner also noted that BB did not put forth any evidence to rebut the provider’s evidence that the charges...

Decommissioning the Bare-Metal Defense in Asbestos Litigation

Written by Ben Woody, Esq. Edited by Bill Pfund, Esq. When a manufacturer produces “bare-metal” products that require installation of asbestos products produced and installed by third parties, can the “bare-metal” manufacturer be held liable for injuries caused by asbestos exposure? Last month, the Supreme Court of the United States answered “yes.” Air & Liquid Systems v. DeVries, 139 S.Ct. 986 (2019). Asbestos litigation has consumed the products liability space for decades. Asbestos claimants contend that neither the U.S. veterans’ benefit system nor asbestos bankruptcy trust fund system provide adequate compensation to individuals with asbestos claims. Accordingly, manufacturers of so-called bare-metal products have found themselves the defendants in asbestos litigation, as they are the only solvent targets left standing. These bare-metal manufacturers have relied a “bare-metal defense,” under which equipment manufacturers are not liable for injuries caused by asbestos insulation and asbestos-containing components obtained by the user from other sources and added to the equipment by a third party post-sale. This “defense” undergirds the principle that these bare-metal manufacturers did not owe a duty to the injured parties. In the years leading up to the DeVries case, federal courts across the country have developed three different approaches to the bare-metal defense. Under the first, more plaintiff-friendly approach, the manufacturer may be liable when it was foreseeable that the manufacturer’s product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part. The second, more manufacturer-friendly approach, there is not liability for manufacturers who did not make, sell, or distribute a part that did not have...

Nonsense and Nonsuits — The Fairfax Circuit Court Awards Costs and Fees after Plaintiff’s Second Voluntary Nonsuit

Written by Chris Bergin Edited by Brian A. Cafritz Each legal jurisdiction across the country has its own unique set of procedural rules and potential pitfalls. In Virginia, one of our legal oddities is the “voluntary nonsuit.” As Jessica Relyea of KPM LAW’s Restaurant and Retail Litigation team has previously explained, a nonsuit is a voluntary dismissal, which allows a Plaintiff to correct a flaw in her case and refile in the future. In practice, voluntary nonsuit is a free “do-over.” In Virginia, every Plaintiff is allowed one nonsuit as a matter of right. This nonsuit may be taken any time before the case has been submitted to the jury. Va. Code Ann. § 8.01-380(B). The Plaintiff does not need the consent of the parties or the approval of the Court to take the first nonsuit. Plaintiffs routinely use nonsuits to avoid summary judgment, fix procedural or strategic errors errors, defeat the statute of limitations, or short-circuit a trial that appeared to be going poorly for the Plaintiff.  The voluntary nonsuit is one of the most potent tactical weapons available to Plaintiffs in Virginia. Nevertheless, it is not all-powerful. For example, if the Plaintiff wants to take a second nonsuit under Code §8.01-380(B), she must obtain Court approval. And, as Judge Gardiner from the Fairfax Circuit Court recently held, Code § 8.01-380(b) allows the Judge to award court costs and fees against the nonsuiting party for a second nonsuit. In the recent case of Lezlie Day v. Gregory Day, (which was decided on April 1, 2019), the plaintiff, Lezlie Day, filed an action for divorce against her husband, Gregory,...

When Indemnification Clauses in Construction Contracts Leave Parties Feeling Void

Written by Matt Daly, Esq. Edited by Bill Pfund, Esq. A critical step in every construction defect claim is to review the contracts between the parties involved in the construction to evaluate the indemnification rights and obligations of the parties.  Virginia Code § 11-4.1 plays an important role in that process.  This section, which renders certain indemnification provision void, states in pertinent part: “Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building, structure or appurtenance thereto, including moving, demolition and excavation connected therewith, or any provision contained in any contract relating to the construction of projects other than buildings by which the contractor performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable.” For example, in layman’s terms, if a general contractor enters into a construction contract with a subcontractor that requires the subcontractor to indemnify the general contractor for the sole negligence of the general contractor, the entire indemnification agreement is void under the statute.  Notably, it’s the language of the indemnification provision in the contract – not the circumstances from which the claim for indemnification arose – that determines whether the indemnification provision is void under § 11-4.1.  Uniwest Construction, Inc. v. Amtech Elevator Services, 280, Va. 428, 441 (2010). While § 11-4.1 obviously pertains...