by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Kate Adams, Esq. Edited by William J. Pfund, Esq. There are three important Bills before the Virginia Senate and House of Delegates that could have a substantial impact on the damages claims that plaintiffs allowed to pursue in Virginia, and the amount of punitive damages plaintiffs are able to recover. The first Bill to watch is House Bill 323 which proposes to create a new category of claims in Virginia for loss of consortium. Virginia has long refused to recognize a cause of action for loss of consortium. House Bill 323 seeks to change this long held principle and create a cause of action for loss of consortium for the injury of a spouse, parent or minor child. The Bill would create a new Code Section, 8.01-38.2, and would allow the spouse of a person who suffers personal injury, the parent of a minor child who suffers personal injury, and the adult child of a person who suffers personal injury to recover damages for loss of consortium. Damages would include loss of services, loss of society and companionship, and lost wages of the person who has to care for the injured person or the minor children of the injured person. Under the proposed Bill, a spouse could recover damages for the loss of sexual relations with the injured person. The bill provides that such a cause of action may be brought independently or together with the injured party’s cause of action. If this Bill passes, the number of claims could dramatically increase and what were relatively minor claims could become more expensive to resolve. A simple car...
by kpmAdmin | Feb 19, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release. Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...
by kpmAdmin | Feb 8, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Cafritz, Esq Practically every business, in some form or fashion, relies on contractors and vendors to efficiently operate. Almost all contracts governing these relationships contain some form of an indemnity clause. Whether it is a retailer, restaurant, or service industry contract, these indemnity provisions allow parties to deliberately and intelligently control risk. Unfortunately, when something goes wrong, enforcing those indemnity agreements can be more difficult than getting a party to agree to indemnity in the first place. Recently, KPM LAW sought to enforce one such indemnity provision for one its clients. In doing so, we opened the door to allow for an easier means of enforcing indemnity agreements in Virginia. On February 1, 2018, in the case of Dominion Nuclear Connecticut, Inc. v. Securitas Security Services USA, Inc., ___ Va. ___ (2018) Record No. 170130, the Virginia Supreme Court agreed with KPM LAW attorneys and ruled that Dominion could rely upon issues raised in its affirmative defense to trigger the duty to defend in an indemnity clause. The facts of the case were largely undisputed. Dominion operated a Nuclear Power Plant in Connecticut. As part of its operations, it contracted with Securitas to provide security services at the power plant. The contract contained an indemnity provision requiring Securitas to defend and indemnify Dominion to the extent the claim arose from Securitas’s negligence. One day, a Securitas guard slipped and fell on ice as she was performing her security rounds at the power plant. She sued Dominion under a premises liability theory. The only allegation in her Complaint was that Dominion was negligent...
by kpmAdmin | Jan 23, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. One of the Virginia Supreme Court’s most recent decisions touches on various issues that may, and often frequently do, arise in trial. In Emerald Point, LLC, et al. v. Lindsey Hawkins, et al., the tenants of an apartment complex prevailed in a jury trial against defendants, their landlord and its management company, for injuries from alleged carbon monoxide poisoning. 2017 Va. LEXIS 197 (2017). Plaintiffs’ apartment was heated by a natural gas furnace. On several occasions the carbon monoxide detector in the unit was activated. Following various inspections and maintenance calls, the furnace was replaced. For this appeal, there is no dispute that plaintiffs suffered injuries as a result of CO exposure. The Supreme Court addressed the following issues, in pertinent part, on the defendants’ appeal: (1) whether an expert’s testimony was properly allowed despite failure to disclose the opinion in accordance with Rule 4:1(b)(4)(A)(i); (2) whether the trial court erred in using an adverse inference jury instruction; and (3) whether the court properly allowed plaintiffs to increase their ad damnum following the close of evidence and over defendants’ objection. A summary of the Supreme Court’s pertinent rulings are as follows: Expert Testimony Disclosure The pretrial scheduling order entered in this matter mandated that “all information discoverable under Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme court of Virginia shall be provided or the expert will not ordinarily be permitted to express any non-disclosed opinions at trial.” The expert relied on a “very recent paper” to support his contention that exposure to CO leads to the development of dementia....
by kpmAdmin | Jan 22, 2018 | KPMBlog, News, Profiles, Uncategorized
Written and edited by Brian Cafritz Whether it is an injury caused by a sidewalk defect, a parking lot hazard, a product or shelving display, or even a broken glass or bowl, retailers and restaurants regularly defend negligence cases by arguing that notice is not required for Open and Obvious conditions. At its heart, the Open and Obvious doctrine relieves a defendant from the duty to warn of a condition if that condition is clearly visible and noticeable to the Plaintiff. The idea is that warnings are not necessary when the Plaintiff knows (or should know) of the danger by simply paying attention. “If a person trips over an ‘open and obvious condition or defect’ she is ‘guilty of contributory negligence as a matter of law,’ unless there is a legally valid justification for failing to observe the defect. Scott v. City of Lynchburg, 241 Va. 64, 66, 399 S.E.2d 809, 810, 7 Va. Law Rep. 1300 (1991). Stated differently, ‘where a defect is open and obvious to persons using a sidewalk it is their duty to observe the defect,’ and ‘[w]here there is no excuse for not seeing the defect one cannot recover.’ Town of Va. Beach v. Starr, 194 Va. 34, 36, 72 S.E.2d 239, 240 (1952).” Estep v. Xanterra Kingsmill, LLC, 2017 U.S. Dist. Lexis 43706 (E.D. Va., March 20, 2017). The doctrine has been alive and well for generations, but a recent decision by Judge Mark Davis of the US District Court for the Eastern District of Virginia has created a ripple in the way the doctrine is analyzed. The case is Estep v. Xanterra...
