by kpmAdmin | Jan 18, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Brian A. Cafritz, Esq. In the Commonwealth of Virginia, there is no independent cause of action for spoliation of evidence. Rather, spoliation is an evidentiary sanction that helps right a wrong caused by the destruction of necessary evidence. A judge is given wide latitude in the types of sanctions that can be ordered. Such sanctions can include fines, limiting or prohibiting testimony of a witness or other evidence, the issuance of a negative jury instruction, or even striking defenses. Because of this, Plaintiff’s attorneys regularly seek these sanctions to lessen their burden of proof. In recent years, arguments have been strongly pushed that Virginia Courts should impose spoliation sanctions not just for intentional spoliation, but also for the negligent destruction of evidence. Those attempts came to a screeching halt last month when the Virginia Supreme Court finally settled the dispute. The case is Emerald Point v. Lindsey Hawkins, and it is premises liability case for 4 tenants’ personal injuries caused by carbon monoxide poisoning sustained in their apartment. The poisoning was caused by the incorrect connection of the furnace flue, which resulted in carbon monoxide being vented into the tenant’s’ apartment. The tenants sued for injuries alleging faulty maintenance of the furnace and flue system. Discovery revealed that the landlord stored the subject furnace for more than a year, but that it then disposed of it. The disposal date, however, was well before the date when Plaintiffs filed their Complaint. When the Judge was advised of the furnace’s destruction during trial, he expressly noted that nothing indicated that the destruction of evidence was in bad faith. Nevertheless,...
by kpmAdmin | Apr 28, 2015 | KPMBlog, News, Uncategorized
When a worker is injured and there is a question as to whether the employee is an independent contractor or an employee of the direct employer or general contractor, several factors need to be considered to determine whether an employer/employee relationship exists. If the facts of the case demonstrate that the worker is an independent contractor, the general contractor may not be held liable for the worker’s injury. The court has recently addressed the factors that are considered to determine whether an employer/employee relationship exists and has noted that the key consideration is the level of control the employer has over the employee. Maryland Labor and Employment § 9-202 provides that “An individual, including a minor, is presumed to be a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.” “To overcome the presumption of covered employment, an employer shall establish that the individual performing services is an independent contractor in accordance with the common law or is specifically exempted from covered employment under this subtitle.” Maryland case law has addressed the factors which establish an employer/employee relationship under the traditional common law test. A worker will be deemed a “covered employee” unless it is established that he or she is an “independent contractor” under the common law rules. The courts have considered the following factors to determine the existence of an employer/employee relationship (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of...
by kpmAdmin | Mar 15, 2015 | KPMBlog, News, Uncategorized
A number of recent Virginia personal injury cases involving collapsing decks have led some Virginia lawyers to wonder if this rash of cases is indicative of a growing area of injury law. Many such cases reveal residential deck construction showing signs of design and construction shortcuts, as well as a lack of the requisite inspection and permit. Deck construction done more than a generation ago is now reaching the age where a collapse is increasingly likely. For defense attorneys and insurers, this means a potential increase in cases that often involve serious injuries, as well as a specific set of issues that need to be explored in evaluating liability. In cases where a guest sues an occupying homeowner for injuries resulting from a collapsed deck, basic premises liability rules control. Therefore, in order to prevail against the homeowner occupying the premises, the injured guest must prove that the homeowner had knowledge of the defect causing the collapse – in other words, that the homeowner either had actual knowledge of the defect, or that the defect had existed for such a length of time as to make it the homeowner’s duty in the exercise of ordinary care to have discovered it. See Roll “R” Way Rinks v. Smith, 218 Va. 321 (1977). Proving notice can be difficult enough, but another host of issues arise when a collapsed deck case involves a tenant (or a guest of a tenant) suing a landlord. Under Virginia law, a landlord is not liable to its tenant for failing to make a repair to the leased premises which is under the exclusive possession and control...
by kpmAdmin | Sep 1, 2014 | News
Gary R. Reinhardt, Attorney, Kalbaugh Pfund & Messersmith, PC will be speaking on the topic of fraudulent water claims and predatory vendors on September 16, 2014 at The International Association of Special Investigation Unit’s Annual Insurance Fraud Seminar. The seminar will be held September 14 – 17 in Greensboro, North Carolina. Gary Reinhardt is an equity partner in the law firm of Kalbaugh, Pfund & Messersmith, PC in Richmond, Virginia where he practices in the areas of Coverage and Fraud. He has served as general counsel for the Virginia Chapter of the International Association of Special Investigation Units as well as counsel to the International IASIU. Reinhardt is a member of the Virginia Association of Defense Attorneys and the Defense Research Institute. About IASIU: Founded in 1984 by a group of insurance industry fraud investigators, the International Association of Special Investigation Units (IASIU) is a non-profit organization dedicated to: Promoting a coordinated effort within the industry to combat insurance fraud; Providing education and training for insurance investigators; Developing greater awareness of the insurance fraud problem; Encouraging high professional standards of conduct among insurance investigators; and Supporting legislation that acts as a deterrent to the crime of insurance fraud. IASIU’s membership is made up of thousands of members representing hundreds of insurance companies around the world. Members are employees of insurance or self-insured special investigation units, special agents or supervisors of the National Insurance Crime Bureau (NICB) or Insurance Crime Prevention Bureau. Associate members are insurance company personnel who support the investigative process and the law enforcement community involved in insurance fraud investigation. For more information: Contact Gary Reinhardt at gary.reinhardt@kpmlaw.com...
