by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. Have you used a Transportation Network Company (TNC) yet? That is the fancy, statutory name for “ride share” companies such as Uber and Lyft. As most are aware, a TNC relies on its drivers to use their personal vehicle. The prospective passenger contacts a TNC driver through the use of a smartphone app. From there, the driver acts as a typical taxicab although personal experience has shown these cars to be cleaner and the driver to be nicer. Payment for the ride is made via credit or debit card already entered into the TNC’s digital platform. The TNC concept is fairly new and courts have yet to sort out the morass of legal and insuring issues these ride shares cause. State statutes set out a comprehensive regulatory framework for these companies, including requirements that essentially label these TNC vehicles and require minimum insurance limits. Starting with Va. Code Ann. § 46.2-2099.48, the Virginia legislature sets out what a TNC and its driver must do to operate in the Commonwealth. This statute requires that all TNC drivers carry “proof of coverage under each in-force TNC insurance policy, which may be displayed as part of the digital platform, and each in-force personal automobile insurance policy covering the vehicle.” This same statute limits a driver from driving more than 13 hours during any 24 hour period. The statute also requires that a TNC vehicle have a different color decal on the license plate, the year decal that shows you have renewed the vehicle registration. Virginia TNC vehicles will have a black decal with yellow “VA” letters and...
by KPMLAW | Feb 23, 2016 | KPMBlog, News, Uncategorized
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. What additional injuries an employer and carrier may be responsible for under the compensable consequence doctrine or chain of causation rule You have an accepted accident for which an injured worker has injured his left ankle. While recuperating from surgery on his left ankle, his ankle gave way causing a right knee injury. Are you responsible for the right knee injury? The answer is yes. Subsequently, that right knee injury causes the injured worker to fall causing a new injury to the right knee. Are you responsible for that new knee injury? The answer may be no as a consequence of a compensable consequence, which is not covered under the Virginia Workers’ Compensation Act. In Virginia, the doctrine of compensable consequence “is well established and has been in existence for many years.” Williams Indus., v. Wagoner, 24 Va. App. 181, 186, 480 S.E.2d 788, 790 (1997). This doctrine provides the standard that “when a primary injury under the Workers’ Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury.” Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977). Specifically, any such secondary injury is related as it if occurred in the course of and arising out of the injured workers’ employment. Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991). This doctrine is also known as the chain of causation rule and provides and states somewhat differently...
by KPMLAW | Oct 29, 2015 | KPMBlog, News, Uncategorized, Updates
Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis. UPDATE By Brian Cafritz, Esq. On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.” Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Whether a claimant suffered an “injury by accident” that arises out of and occurs in the course of employment usually takes an undue amount of time during a recorded statement. The factual variations are endless and the black letter law is often blurred, making it hard to know where to focus your questioning. Luckily, lack of timely notice is relatively straightforward and this defense is often neglected during recorded statements. In general, an injured worker needs to notify a supervisor of a work accident within 30 days. If an injured worker fails to give legally sufficient notice, that worker’s claim can be completely barred – even if they sustained a compensable “injury by accident.” In other words, lack of timely is a very powerful defense. It can give you a clear, reliable reason to deny an otherwise compensable claim. What follows are crucial questions to ask about notice during a recorded statement, along with a brief explanation of the law on notice. 1. Who Did You Tell? The Workers’ Compensation Act requires notice to the “employer” pursuant to §65.2-600. Of course, this means some specific person. The cases discuss the need to tell a “foreman,” “superior officer,” or “supervisor.” In other words, telling a co-worker isn’t enough. Get the claimant to identify who the claimant considered to be the “boss” and find out whether the claimant told that person. Also, because there may be more than one supervisor, have the claimant list all supervisors, any other people the claimant believed should be informed of work accidents, as well as...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Author: Brian Cafritz, Esquire It is all too common that a customer or piece of equipment spills or drips liquid on the floor. The business learns of the problem and places a cone on the floor either prior to cleaning or after cleaning. Despite the warning cone, a guest falls and sues the business for negligence. Because Virginia applies a contributory negligence standard (1% negligence by plaintiff is a total bar to recovery), the defendant almost always has a decent liability argument to take to the jury. However, the real goal is to have the case dismissed on summary judgment and avoid the uncertainty of a jury altogether. Over the last 12 months, several new opinions in Virginia Federal Courts have provided valuable guidance on how to assess the potential liability of these claims, and they specifically point to critical facts to determine whether summary judgment is appropriate or not. In each of the cases, the court focused on fact issues, such as “How close was the cone to the fall?” and “Was the condition that caused the fall the same condition the cone was warning against? Like most states, the general law of premises liability in Virginia is that a business owes a duty to exercise reasonable care to make the particular area reasonably safe for plaintiff’s use, or to give adequate warning of any hidden or concealed danger that it knows or should know about. However, behind that basic tenet of the law, there are a seemingly infinite number of variations in fact patterns that make the simplest concept problematic. Over the years, the Virginia Supreme Court...
