by KPMLAW | Feb 1, 2023 | Events, KPMBlog, News, Profiles, Uncategorized
Written by Daniel Royce, Esq. In the world of public risk, the doctrine of sovereign immunity is often raised but seldom understood. Courts frequently grapple with how far the doctrine should extend and under what circumstances it can be applied. The doctrine of sovereign immunity is “alive and well” in Virginia. Commonwealth ex rel. Fair Hous. Bd. V. Windsor Plaza Condo. Ass’n, 289 Va. 34 (2014). The Virginia General Assembly has employed an incremental approach to enacting a limited waiver of immunity in the Virginia Tort Claims Act. AlBritton v. Commonwealth, 299 Va. 392, 399 (2021). However, claims against localities and employees continue to be governed by common law principles. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244-245 (2004). A new ruling from the Circuit Court of Prince William County (Va) has clarified these issues a little more. The case involved a former public school student and resident of Prince William County. This former student filed a lawsuit alleging negligence by current and former Prince William County Public School officials. The purported negligence of these officials allegedly resulted in her being the victim of sexual assault while a special education student at C.D. Hylton High School. This suit was a revival of a similar action originally filed in January 2019 against the Virginia Board of Education, Prince William School Board, David Cassady (former Superintendent), Michelle Roper (Special Education Director), and Steven Walts (Principal of C.D. Hylton High School). In the prior suit, defendants’ denied all wrongdoing and argued in favor of dismissal on the basis that the plaintiff did not sufficiently show negligence. ...
by KPMLAW | Dec 19, 2022 | Court, Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Between March 16, 2020 and July 8, 2020, the Supreme Court issued several “emergency orders” in response to the COVID-19 pandemic, which tolled all statute of limitations. Since then, there has been considerable debate as to when the tolling period created by these emergency orders runs. In fact, the courts in Virginia have essentially been split on the issue. See Tinsley v. Clarke, 2022 U.S. Dist. Lexis 56625 (W.D. Va. March 28, 2022) and Proctor v. AECOM, Inc., 2021 U.S. Dist. Lexis 162142 (E.D. Va. August 26, 2021); see also English v. Quinn, 2022 Va. Cir. Lexis 7 (Roanoke City Cir. Court Feb. 7, 2022); but then see Ceriani v. Dionsysus, Inc., 2022 U.S. Dist. Lexis 73499 (E.D. Va. April 20, 2022); Heck v. Guion, 108 Va. Cir. 179 (City of Chesapeake Cir. Court June 4, 2021) and Brown v. State Farm, 107 Va. Cir. 343 (Culpeper County Cir. Court March 11, 2021). In general, plaintiffs have taken the position that the emergency orders tolled and extended all statutes of limitations. Thus, plaintiffs argued they had an additional 126 days (the time between March 16, 2020 and July 8, 2020) to file their Complaint in a personal injury action. For example, in Virginia, the statute of limitations for a personal injury suit is 2 years. Assume the date of an automobile accident was November 19, 2019. Generally, the time for plaintiff to file his or her suit in such a case would have run by November 19, 2021. However, due to these emergency orders, a plaintiff would likely...
by KPMLAW | Nov 14, 2022 | Uncategorized
Written by Randy Lenhart, Esq. Edited by Bill Pfund, Esq. There are two important reasons for asking if a plaintiff has filed her bankruptcy in discovery. The first reason is to try and challenge the admissibility of the plaintiff’s medical bills. In Virginia, a plaintiff is allowed to claim all of their gross medical bills incurred as a result of an accident even if the bills were paid by a health insurance company or other source. This is known as the collateral source rule. However, some Virginia courts and federal courts have determined that a plaintiff cannot recover for the amount of her medical bills that have been discharged in bankruptcy. As a result, this bankruptcy issue can function as a limited exception to the collateral source rule. The other important reason is standing. In Ricketts v. Strange, et al., 796 S.E.2d 182, 2017 Va. LEXIS 5 (February 16, 2017), the plaintiff filed a personal injury lawsuit shortly before the two year statute of limitations expired on her claim against the defendant. After the defendant learned that the plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Virginia, he filed a motion for summary judgment and argued that the plaintiff lacked standing to file her complaint. Instead, the defendant asserted that the plaintiff’s personal injury claim should have been brought by the bankruptcy trustee because the personal injury claim had not been properly exempted from the bankruptcy estate. In granting the defendant’s motion for summary judgment, the circuit court determined that because the plaintiff “failed to disclose [her claim...
by KPMLAW | Nov 2, 2022 | Uncategorized
Written by Franice B. Georges, Esq. Edited by Bob McAdam, Esq. The recorded statement can be an extremely important tool in defending a workers’ compensation claim. It is an opportunity for the claims handler to speak with the injured worker close in time to the work accident, when memories are the freshest and before outside influences can affect the worker’s version of the accident. You should think of this as an opportunity to thoroughly investigate compensability and to lock in the injured worker’s version of the accident and claims of injury. But, it can also be used to gather important collateral information including the injured worker’s health history, claims history, employment history, identification of witnesses, and subrogation possibilities. Taking an effective recorded statement involves preparation, strategy and listening skills. Based on the information you gather from the employer during your initial investigation about the type of accident and injury, take a moment and think about the types of questions you will want to ask. In addition to the standard questions including contact information for the injured worker and the facts of the accident and injury, consider other things that are a little outside the box that could lead to some helpful information. For example, are there other plausible explanations for the injury outside of the work environment, like hobbies, sports activities, motor vehicle accidents, or pre-existing medical conditions? If the injured worker identifies other potential explanations for the injury, you now have additional avenues to investigate. If the injured worker does not identify potential explanations for the injury and it turns out later that in fact, there are other...
by KPMLAW | Aug 30, 2022 | KPMBlog, News, Uncategorized
Written by Chris Wilson, Esq. Edited by Bob McAdam, Esq. Two recent decisions from the Court of Appeals of Virginia and the Virginia Workers’ Compensation Commission create uncertainty regarding when employers and carriers can be sure that there will be no further litigation in settled workers’ compensation claims. The case decided by the Full Commission, Greatheart Jr. v. City of Hampton, JCN VA00001102641 (Apr. 12, 2022) involved an application by the claimant seeking to compel the employer and carrier to pay the balance of bills for medical services the claimant received on October 29, 2015. The claimant’s workers’ compensation claim settled full and final on November 1, 2019. The defendants argued that the settlement Order extinguished the claimant’s right to seek payment of unpaid medical balances, and that the claimant therefore lacked standing to pursue his claim. As is common in accepted workers’ compensation claims, the employer and carrier agreed as part of the settlement to pay for all reasonable, necessary, and causally related medical treatment rendered from the date of the accident through the date the settlement Order was entered by the Commission. The Order, however, also included language stating that the settlement “shall be and hereby is a complete extinguishment of all claims of any nature whatsoever of the claimant . . . that are now due or that hereafter may become due . . . including, but not limited to, claims for . . . medical benefits . . . .” Documentation submitted by the claimant indicated the carrier had partially paid the bill in question in 2016, leaving a balance of roughly $8,000. The bill...
