by kpmAdmin | Apr 7, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Sarah Kathryn Stahling, Esq. Edited by Bill Pfund, Esq. Two separate causes of action arise out of an injury to a child– one on behalf of the child for pain and suffering, injury, and loss of earning capacity in adulthood and one on behalf of the child’s parents for loss of services and earning capacity while the child is a minor and for medical expenses incurred for the child’s treatment. Moses v. Akers, 203 Va. 130, 122 S.E.2d 864 (1961). Since July 1, 2013, however, the claim for medical expenses now belongs to both the minor and the parents. Va. Code § 8.01-36. You’re likely familiar with a child’s claim for personal injuries that includes the parents’ claim for medical expenses incurred on behalf of the child. This type of action is stems from Va. Code § 8.01-36(A), which provides that [w]here there is a pending action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses . . . either in the action filed in behalf of the infant or in a separate action. Section 8.01-36(B) goes on to provide that where the cause of action accrues on or after July 1, 2013, the past and future expenses for medical treatment for the child are recoverable by the infant in a...
by kpmAdmin | Apr 7, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Barry Montgomery, Esq. Edited by Bill Pfund, Esq. We all know that 2017 brought with it the powerful #MeToo movement raising the awareness of sexual assault—especially in the workplace. The international movement has found support among celebrities and politicians. The hashtag “#MeToo” has been posted on social media sites millions of times since October 2017. It follows that such a movement has influenced they manner in which most jurors perceive allegations of sexual assault in the workplace. However, it remains to be seen how #MeToo era juries will hold employers civilly liable for sexual assaults committed by their employees. While traditional sexual harassment cases invariably end up in federal court, sexual assault victims may file tort cases in state court directly against the assaulter and his employer. This article will address common questions I receive from claims adjusters regarding claims of sexual assault made directly against an employer and the employer’s potential liability. Can Sexual Assault Be Committed Within the Scope of Employment? Yes. In Virginia, it is well that while the plaintiff has the burden of persuasion on the issue of whether the employee was acting within the scope of his employment at the time of the act complained of, simple proof of the employment relationship creates rebuttable presumption of the employer’s liability.” Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 542 (2000). The court noted that when an employer-employee relationship has been established, then the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act complained of, and...
by kpmAdmin | Apr 7, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. The Virginia Workers’ Compensation Act and the cases interpreting the Act were turned upside down by the Court of Appeals in Riverside Regional Jail Authority v. Dugger, 68 Va. App. 323 (2017). In Dugger, the Court of Appeals held that the claimant, a corrections officer, sustained an injury by accident when she participated in simulated fights for four hours. During that training session she was tossed around and taken down. As she was walking away from the training, she immediately noticed pain in her knee. In finding that the claimant suffered a compensable injury by accident, the Court found that the claimant was not engaged in repetitive movements during this training. Instead, the Court found that the claimant’s injury occurred during the four hour defensive training class, which was sufficiently bounded by rigid temporal precision to be considered an injury by accident. This opinion, of course, appeared to eviscerate the requirement that the claimant prove an injury by accident, that is, “an identifiable incident or sudden precipitating event.” However, in one of the first post Dugger opinions the Full Commission, in a 2-1 decision, reversed the deputy commissioner and appeared to reign in the effects of Dugger in Daggett v. Old Dominion University, JCN va00001318459 (March 8, 2018). In Daggett, the claimant, a technical support provider, testified that he suffered bilateral shoulder injuries when he was moving fourteen separate 4 foot by 8 foot smart boards to collect information from them. The boards weighed between 28-48 lbs. He had to rotate the boards. In the process, his arms and...
by kpmAdmin | Mar 20, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. Property damage claims can be made by filing a separate Warrant in Debt or by including the claim in the same action for personal injury. There is also a VA Code Section that states that “insurers shall arbitrate and settle all disputed claims made for automobile physical damage between them in accordance with the terms of the Nationwide Intercompany Arbitration Agreement.” (See Va. Code §38.2-2231(A)). This Code Section, however, has been deemed unconstitutional by a number of Circuit court decisions in Virginia. In 1999, the Circuit Court of Danville, Virginia first ruled on this issue. In Bass v. Young, the Court noted that it had “serious concerns about the constitutionality of Va. Code §38.2-2231” as it did away with the right to a jury trial and provided no appeal or judicial review of an arbitrator’s decision. (See Bass v. Young, 49 Va. Cir. 525 (1996)). The Circuit Court in Rockbridge County also agreed that this Code Section is unconstitutional. (See Virginia Mut. Ins. Co. v. Dean, 49 Va. Cir. 132 (1999)). In Virginia Mutual Insurance Company v. Dean, the Plaintiff insurance carrier, acting as subrogee of the insured, filed a property damage claim against the operator of another insured automobile. The Defendant filed a plea in bar, asserting that pursuant to §38.2-2231, arbitration was the exclusive remedy. The Court denied the Defendant’s plea in bar and set the matter for trial, finding that the remedy provided by the Legislature was to be “in addition to and not in lieu of the ancient common law right of trial by jury.”...
by kpmAdmin | Mar 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Danny Royce, Esq. A critical tool in our case resolution arsenal is mediation. Many carriers and claimants turn toward mediation to resolve contentious litigation. As we all know, mediation sessions can be slow and arduous often taking the better part of a day (and sometimes longer). More often than not, mediation sessions accelerate toward compromise toward the end of a long session. Such compromise frequently coincides with the highest points of stress and fatigue among litigants and lawyers. One potential consequence of this confluence of factors is a hastily written or incomplete settlement agreement. This presents a pitfall easily avoided by the savvy and conscientious lawyer. The Supreme Court of Virginia recently ruled on this very issue in the case of LongView Int’l Technology Solutions Inc. v. Lin (2017 Va. Unpub. LEXIS 9 *, VLW 017-6-030(UP)). Longview presents as a cautionary tale for litigants and lawyers trying to finalize mediated settlement agreements. In LongView, the parties participated in a 12 hour mediation session with an experienced mediator. Upon reaching an agreement, the lawyers drafted a six-paragraph “Term Sheet” which stated the defendant tech company would pay the plaintiff investor (and former officer) $3 million over a four-year period, and another $12 million when the company was sold. The Term Sheet included language at the top of the document that the parties were “intending to be fully bound by its terms.” The parties signed the Term Sheet and sought to remove the trial from the docket. The judge managing the docket heard a request for a continuance of the case and pressed the parties on whether they had...
