by kpmAdmin | May 17, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Randall C. Lenhart, Jr., Esq. Edited by Willian J. Pfund, Esq. Two individuals walk into a bar. You would have thought at least one of them would have ducked. Nevertheless, they both filed separate actions against the owner of the premises asserting negligence claims for creating a hazardous condition and failing to warn of the dangerous condition. In one of the cases the plaintiff asserted that the owner’s negligent conduct was grossly negligent and willful and wanton while the other plaintiff asserted that the owner acted with simple negligence. Does it matter? It could because Virginia law recognizes different types of negligence and the type of negligence claim asserted can affect the damages awarded to a plaintiff, the claims a plaintiff may assert and the defenses that are available to a defendant. The three types of negligence are (1) ordinary or simple negligence, (2) gross negligence, and (3) willful and wanton negligence. Virginia also recognizes negligence per se claims. Ordinary or simple negligence is a failure to use that degree of care which an ordinarily prudent person would exercise under the circumstances to avoid injury to another. Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957). Gross negligence is an utter disregard of prudence amounting to complete neglect of the safety of another. It must be such a degree of negligence as would shock fair minded men although something less than willful recklessness. Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (emphasis omitted). Willful and wanton negligence on the other hand is acting consciously in disregard of another person’s rights...
by kpmAdmin | May 17, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. In Virginia, an employee has two years to file a claim for body parts and to identify those injuries asserted from the work accident. But what happens after the statute of limitations has run? Can an injured worker get around the two-year statute to allow for additional injuries without having the statute of limitations tolled? If the complaints and body parts are closely related, it is certainly a possibility. In the discussion below, we address a case in which an employee injured her shoulder only to be awarded a cervical injury after the two-year statute had passed. Below you will see the reasoning for how the injured worker was able to get around this two-year statutory requirement and recommendations for how to handle your case to keep this from happening. An employee must assert against the employer “any claim that he might have for any injury growing out of the accident,” within the two-year statute of limitations period found in Code § 65.2- 601. Shawley v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 853 (1975). If an employee suffers multiple injuries during the same accident, the employee must assert a claim for each injury, within the statute of limitations period. (Id.) The limitation found in Code § 65.2-601 is jurisdictional. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977); Shawley, 216 Va. at 445, 219 S.E.2d at 852. “Statutory construction may not be used to extend the rights created by the Act beyond the limitations and purposes set out therein.” Garcia...
by kpmAdmin | May 17, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. In motor vehicle accidents involving very serious injuries where the wrongdoing party has no liability coverage or limited liability coverage, injured parties must seek uninsured and underinsured coverage from any other policy which may be available, wherever they can. There are various ways an injured party can be considered an “insured” under these UM/UIM policy. The Virginia Court of Appeals very recently decided on a case which limits just how far the Court would be willing to extend the coverage. In Virginia, uninsured motorist coverage is meant to protect an insured motorist, his family and permissive users of his vehicle against the peril of injury by an uninsured wrongdoer, not to provide insurance coverage upon each and every uninsured vehicle to everyone. Bayer v. Travelers Indem. Co., 221 Va. 5, 267 S.E.2d 91, 91 (Va. 1980). In the recently decided case of Levine v. EmpIrs Ins. Co., the United States Court of Appeals for the Fourth Circuit looked to this definition of UIM coverage and limited coverage under a Third Party’s UIM policy to the vehicles strictly identified in the policy’s Declarations Pages, refusing to extend coverage to include the broader definition found under Virginia’s required UIM statutory endorsement. 218 U.S. App. LEXIS 9146 (April 12, 2018). Specifically, the Court addressed the question as to how to interpret the policy where Virginia’s required UIM endorsement has a definition of “covered auto” that is broader than the UIM limitation of the Declarations Pages. Background Facts Purnell Furniture Services was a Virginia furniture company who hired Carlos Bolanos Castillo and Marco...
by kpmAdmin | Apr 7, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Andy Webb, Esq. Edited by Gary Reinhardt, Esq. According to Facebook, more than 350 million photos are uploaded and 55 million status updates are posted to its site every day. Often, these photos and status updates, along with other information voluntarily posted on Facebook, are significant tools in defending against a plaintiff’s claims. However, due to Facebook’s privacy settings, a party’s Facebook posts are sometimes limited or completely obscured from public view. When this is the case, an attorney must use the discovery process in an attempt to obtain this possibly valuable Facebook information. In the context of litigation, discovery devices such as interrogatories and requests for production can be used to obtain a party’s Facebook information, but these tools place limits on the content and amount of information available. Generally, discovery is limited to material “relevant to the subject matter” of the litigation, if that information “appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 4:1(b)(1) Rules of the Supreme Court of Virginia. This general standard places a burden on the party seeking the production of Facebook information. The party must show a factual predicate between the Facebook information and the issues of the case. Virginia courts applying this factual predicate standard in the Facebook context have looked at the facts of each case independently to determine if a request for Facebook information is relevant. For example, the Greensville County Circuit Court found a defendant established the necessary factual predicate by showing that drinking and partying depicted in plaintiff’s Facebook pictures could be relevant in evaluating the true extent of plaintiff’s alleged long-term...
by kpmAdmin | Apr 7, 2018 | KPMBlog, News, Profiles, Uncategorized
Written By Chris Bergin, Esq. Edited by Brian A. Cafritz, Esq. Virginia business owners are not legally responsible for every single accident that occurs on their premises. Indeed, the Virginia Supreme Court has been clear: “A proprietor of a store is not an insurer of the safety of his customers.” Safeway Stores, Inc. v. Tolson, 203 Va. 13, 16 (1961). For a Plaintiff to establish a claim of premises liability against a business owner, he must prove two factual elements: that a hazardous condition existed on the premises, and that the defendant had notice of the hazardous condition. The second issue—whether a business had notice of a dangerous condition—is more heavily litigated. There are three ways a Plaintiff can establish notice: (1) by proving that the defendant created the dangerous condition through its own affirmative conduct , (2) by proving that the defendant had actual notice of a dangerous condition and (3) by proving that the defendant should have known about the dangerous condition. Each method of establishing notice has its own specific legal standard that the Plaintiff must meet. Most of the time, Plaintiffs are unable to prove that a storeowner either created a hazard or had actual knowledge of a hazard. Thus, the vast majority of litigation in Virginia focuses on whether a Plaintiff is able to prove constructive notice. Fortunately for business owners, the constructive notice rule is straightforward, defense-friendly, and ironclad. To establish constructive notice, a Plaintiff must provide evidence showing how long the specific hazard in question existed prior to his accident. Other evidence is irrelevant. If the Plaintiff cannot show how long the...
