by KPMLAW | Mar 25, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Henry U. Moore, Esq. Edited by Bill Pfund, Esq. Removal of a lawsuit from state court to federal court can often be an advantageous strategy move by a defendant in Virginia. This is primarily because federal courts are far more willing than Virginia state courts to grant summary judgment to a defendant when a plaintiff has failed to present a viable case for trial. Federal courts also move cases along more quickly than state courts, as exemplified by the nickname of the U.S. District Court for the Eastern District of Virginia, often referred to as the “Rocket Docket.” But there are limits to how, and when, a defendant may remove a case to federal court. A case is removable to federal court only if (1) it presents a question of federal statutory or constitutional law (“federal question jurisdiction”) or (2) it involves adverse parties which are citizens of different states and an amount in controversy over $75,000 (“diversity jurisdiction”). If the initial complaint filed by the plaintiff in state court presents one of the above grounds for removal, a defendant has 30 days from receipt of the complaint (by service or otherwise) to remove the case to federal court. 28 U.S. Code § 1446(b)(1). But what if the plaintiff’s initial complaint does not provide a basis for removal – can the case ever be removed to federal court? 28 USCS § 1446(b)(3) specifies that “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant…of a copy of an amended pleading, motion, order...
by KPMLAW | Feb 20, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. Editors Note: This article first appeared in the Winter 2019 Edition of SIU Today Rate evasion refers to when an individual materially misrepresents information on an insurance application. The applicant evades a higher premium, or obtains insurance she may not be eligible for, by submitting or omitting material information on the insurance application. Rate Evasion can lead to an insurer voiding the policy ab initio, or from inception. Many in the industry also refer to this as “rescission.” When an insurer voids/rescinds a policy, it does so on the basis of fraud in the inducement, essentially claiming that the insurer would never have contracted with the applicant had the applicant told the truth. The remedy is to put each party back to where they were prior to the contract. The insurer refunds the premium paid and treats the policy as if it never existed. Voiding/rescinding the policy differs from a claim denial. An insurer can void a policy, often resulting in non-coverage for a valid claim one that would ordinarily be covered by the terms and conditions of the policy. Voiding also allows the insurer to escape liability from any prior non-disclosed claims and from any claim that might arise subsequently. Denying coverage impacts only the particular claim at issue. The policy remains in force and subject to providing coverage for any prior claims and any that may arise. This is important because carriers may intend to cancel a policy rather than voiding a policy. This keeps the carrier exposed while it completes the statutory cancellation procedures and timeframes. Rate evasion indicators, or “Red...
by KPMLAW | Feb 19, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Matthew Liller, Esq. Edited by Bill Pfund, Esq. Nearly all insurance policies require that an insured cooperate with their carrier during the investigation of a loss. Many policies also require the insured to submit to an Examination Under Oath (E.U.O.) should the carrier so elect. But what happens if the insured is under criminal investigation for the same circumstances as the loss? Can the carrier force the insured to testify at an E.U.O. during the pendency of a criminal proceeding despite the Fifth Amendment’s Constitutional protection against self-incrimination? The Supreme Court of the United States has made clear that the Fifth Amendment not only protects an individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Lefkowitz v. Turkey, 414 U.S. 70, 77 (1973). Perhaps the most common circumstance under this rubric is a house fire. Soon thereafter, the insured reports a substantial loss for the structure and destroyed personal belongings. Subsequent investigation by authorities reveals suspicious circumstances, and criminal arson charges are then brought against the insured. The insurance carrier wishes to invoke its contractual right to require an E.U.O. The insured, of course, has an interest in not making any statements – particularly any under oath – about the circumstances related to ongoing criminal charges, as any and all statements could then be used against them in the criminal case. Under Virginia law, substantial compliance with a “cooperation clause”...
by KPMLAW | Feb 19, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Nick Marrone, Esq. Edited by Rachel Riordan, Esq. As an adjuster working on Virginia worker’s compensation claims, you are likely aware of the penalties that can accrue on compensation that is not timely paid. Under § 65.2-524 of the Virginia Workers’ Compensation Act (“the Act”), “[i]f any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20% percent thereof…” What does this mean? It is pretty straightforward: If a claimant is under an award for compensation benefits and the Insurer fails to issue payment within two weeks of those benefits being due the claimant would be entitled to 20% of the total amount of compensation not issued within two weeks of being due. However, the Insurer does have some defenses to a claim for penalties. Under that same section of the Act, the 20% penalty will not be due if “the Commission finds that any required payment has been made as promptly as practicable and… there is good cause outside the control of the employer for the delay…” What sort of situation would meet this exception? The Commission has held that compensation timely issued to the claimant’s attorney who failed to provide the payment to the claimant in a timely fashion met the exception. The Commission has also found that a payment issued to the claimant’s address of record which was never received and then promptly reissued once the Insurer had notice it was not delivered also met the exception despite the payment being reissued after the two week period. Often when a...
by KPMLAW | Feb 19, 2019 | KPMBlog, News, Profiles, Uncategorized
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