by kpmAdmin | Aug 21, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Lee Hoyle, Esq. Edited by Brian Cafritz, Esq. The first and often most important fight in most civil cases is where the case will be litigated. Plaintiffs generally prefer state court, while defendants often prefer federal court. A defendant’s ability to remove a state court action to federal court can greatly impact the litigation as a whole. For most cases involving retailers and restaurants, the most common way for a defendant to assert federal jurisdiction is Diversity of Citizenship. If the plaintiff and defendant are citizens of different states (and the claim is over $75,000), the defendant can remove a case filed in state court to federal court. However, when plaintiffs seek to prevent their case from being removed to Federal Court, they will often name an employee who is a citizen of the forum state as a second defendant. This is known as the forum defendant rule. 28 USC 1441(b)(2) provides that, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 1332(a) includes diversity jurisdiction based on citizenship of different states and citizenship of foreign states. Under this rule, a Maryland Plaintiff may sue a Georgia company and a Virginia employee in a Virginia Court. In this instance, even though the plaintiff and both defendants are all from different states, the case is not removable to federal court because the individual employee is a citizen of the state...
by kpmAdmin | Aug 16, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by Willian J. Pfund, Esq. In a product liability case tried this year in Roanoke City Circuit Court, the trial judge dismissed a 4.2 million verdict for a plaintiff upon post-trial motions, finding that the evidence established contributory negligence as a matter of law. On appeal, the Supreme Court of Virginia affirmed the dismissal, but it found in favor of the defendant on the alternative basis that the Estate failed to establish negligent design as a matter of law. In Evans v. NACCO Materials Handling Group, Inc., 295 Va. 235 (2018), the Estate of a paper plant worker filed suit against the manufacturer of a lift truck after the worker was crushed and killed by the lift truck he had been operating. The deceased worker’s lift truck got stuck between a dock plate and the edge of a trailer he had been loading. He and a co-worker attached a chain to his truck so it could be pulled out by the other lift truck. He applied the parking brake and turned the engine off, but apparently other workers had loosened the brake. The truck was on an incline, and the noise in the plant prevented him from hearing warnings that the truck was rolling towards him. The alarm on the truck did not sound, and chocks were not placed under the wheels. While the deceased worker had received some training on how to operate the truck, he was never certified; and federal law required such certification. The Estate claimed that the parking brake on the lift truck was negligently designed. It also...
by kpmAdmin | Aug 16, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Nick Marrone, Esq. Edited by Rachel Riordan, Esq. Probably every adjuster has come across a provider application filed by the medical provider of a claimant. Under the Virginia Workers’ Compensation Act (“the Act”), if a provider disputes the amount an insurer has paid for a medical bill or claims the insurer has not paid anything towards the bill, the provider can independently file a claim with the Commission seeking payment from the insurer. The provider’s claim (e.g., the provider application) is filed under the claimant’s Jurisdiction Claim Number. When the application refers to treatment that has occurred from July 1, 2014 or later it must be filed within one year of the date the provider last received payment or within one year of the date the medical award covering the date of service of a contested billing becomes final. See Virginia Code § 65.2-605.1(F). But what happens when a claimant files a claim for benefits seeking payment of unpaid medical bills from a provider? I am not talking about a claim for out-of-pocket expenses, but a claim filed that seeks the balance due to a medical provider which the insurer disputes. If such a claim is filed should the adjuster pay the claimant the balance due to the provider? Should the adjuster pay the balance to the provider directly? The adjuster should do neither. The provider that seeks the balance of a bill from a claimant is acting in violation of the Act; they are committing what is called “balance billing”. Under § 65.2-714(D) of the Act a medical provider may not bill a claimant for the...
by kpmAdmin | Jul 20, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea Edited by Brian A. Cafritz Last year, the KPM LAW Newsletter addressed whether a restaurant or retail establishment could be held vicariously liable for a defamation claim against an employee due to the employee’s social media post. If the employee was acting within the scope of his or her employment at the time she made the post, the employer could be held liable. Therefore, what should the employer know about the customer’s defamation claim? In Virginia, actions for defamation are akin to actions for slander or libel. The first step in the analysis is for the trial judge will make a determination, as a matter of law, whether the “statement makes substantial danger to reputation apparent.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (Va. 1985). If the answer is yes, the simple negligence standard applies. If the answer is no, the tougher New York Time’s malice standard applies. If the negligence standard applies, the plaintiff need only prove that (1) the statement was false, and (2) the defendant either knew it to be false, lacked reasonable grounds to believe it to be true, or acted negligently in failing to ascertain whether it was true or false. Id. If the New York Time’s malice standard applies, the Plaintiff must prove either the statement was made with knowledge that it was false or that defendant acted with reckless disregard of whether it was false or not. Id. citing New York Times Co. v. Sullivan, 376 U.S. 254, 268 (U.S. 1964). If the New York Times standard applies, truth is affirmative defense, and the burden of proving...
by kpmAdmin | Jul 16, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. The General Assembly convened earlier this year and enacted a number of changes to Virginia’s workers’ compensation laws. However, a number of proposals that would have resulted in even bigger changes failed. Below is a summary of what did and did not become law in 2018: Legislation Passed by the General Assembly The Hon. Ferrell Newman, already a Workers’ Compensation Commissioner, was appointed Chairman of the Workers’ Compensation Commission effective July 1, 2018. He takes over as Chairman from Commissioner Wesley Marshall for a 3 year term. HB 82 held the tax rate paid by insurance carriers and self-insured employers to fund the Uninsured Employer’s Fund steady at .005 %. HB 558 added clarity to the term “medical community” for employers obligated to pay for out-of-state medical treatment. HB 117 provided that specially-appointed Deputy Commissioners or retired Commissioners can be counted in determining whether there is a quorum of the full Commission. Legislation Not Passed by the General Assembly HB 1543 would have expanded the time period for many claimants to file new claims for benefits. Specifically, the bill provided for the tolling of the two-year limitations period for filing a new claim during the time when the employer was paying either medical or wage loss benefits. This is not allowed under current law. HB 969 would have drastically reduced the ability of claimants to seek compensation from a “statutory employer” in cases where their own employers did not have workers’ compensation insurance. HB 460 would have made it easier for a claimant to bring a civil suit for...
