by KPMLAW | Feb 22, 2021 | KPMBlog, News, Profiles, Uncategorized
By Matthew L Liller, Esq. Edited by Bill Pfund, Esq. If you’re reading this article, you are likely aware that diversity jurisdiction in Federal court requires the parties to be citizens of different states and the amount in controversy to exceed $75,000. See 28 U.S. Code 1332. However, determining whether a case meets the required amount in controversy – and can therefore be removed to Federal court after its filing by a plaintiff in State court – can be very different between Virginia and West Virginia. In Virginia, this determination is pretty easy. Virginia Supreme Court Rule 3:2 requires that every Complaint requesting money damages contain an “ad damnum” clause stating the amount of damages sought. That means, in Virginia, if the amount sued for in the Complaint is more than $75,000 and the parties are diverse, the case can usually be removed to Federal Court. West Virginia, on the other hand, is much different. By statute (WV Code § 55-7-25), no specific dollar amount relating to damages being sought can be included in the Complaint. West Virginia district dourts have addressed this issue, and while the courts employ some variances in how to get there, the burden always rests on the defendant to prove by a preponderance that the amount in controversy exceeds the jurisdictional minimum. This requires the assertion of specific facts in the defendant’s Notice of Removal pleading. The district court will consider a number of factors, including the plaintiff’s injuries, expenses, settlement demands, amounts awarded in similar cases, and punitive damages, when appropriate. See McCoy v. Erie Ins. Co., 147 F.Supp2d 481 (SD W. Va....
by KPMLAW | Feb 17, 2021 | KPMBlog, News, Profiles, Uncategorized
After an automobile accident, it can often be difficult for those involved to find a replacement vehicle. The Virginia General Assembly addressed this fact with the implementation of Va. Code Ann. § 8.01-66, which provides reimbursement to a non-at-fault party for costs associated with a temporary rental vehicle. In drafting this code section, the General Assembly clearly attempted to balance the interests of both the at-fault and innocent party. 8.01-66 allows a party who is “entitled to recover for damage to or destruction of a motor vehicle . . . to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle.” Va. Code Ann. § 8.01-66(A). The General Assembly placed a few restrictions on this avenue of damage recovery in an attempt to balance the interests of both parties to the accident. These balancing restrictions can play an important role in an individual’s ability to recover and the amount of such recovery. First, the individual seeking these damages must be “entitled to recover for damages” as a result of the accident. Though this is the first, and seemingly most basic step, it may prove difficult in practice. Because Virginia adheres to the doctrine of contributory negligence, if the party seeking damages negligently contributed to the accident in any way, he or she will be barred from recovery under § 8.01-66(A). Therefore, analyzing the facts surrounding each accident is the important first step to applying § 8.01-66(A). Second, § 8.01-66(A) requires that the costs must actually be incurred. ...
by KPMLAW | Feb 9, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Bob McAdam, Esq. Edited by Rachel Riordan, Esq. In Virginia, a claimant may receive permanent total disability benefits (compensation for the claimant’s life, not limited to the 500 weeks set forth in Virginia Code §65.2-518) when the following occurs: Loss of two limbs in the same accident (or appropriate loss of use of two limbs). Total paralysis. Severe brain injury, so as to render the claimant permanently unemployable in gainful employment. In a majority of cases involving an upper or lower extremity, only one of the extremities is injured in the compensable accident. Does this mean that you do not ever have to reserve the claim for more than 500 weeks of compensation in these cases? Not necessarily. As long as the injuries to the two limbs occurred “in the same accident”, there is a potential for a permanent total disability claim. So, the issue becomes, what does “in the same accident” mean? It might not mean what you think it does. A very stark illustration of this principle was discussed by the Court of Appeals of Virginia in Merck & Co. v. Vincent, 71 Va. App. 439, 837 S.E.2d 80 (2020). In Vincent, the claimant sustained a compensable injury by accident to his left arm. The claimant prevailed before the deputy commissioner. The claimant then underwent surgery to repair those injuries. Two years later, the claimant became dizzy and fell as a result of the pain medication that he was taking in the aftermath of the surgery, injuring his knee in the fall. The claimant filed a claim, alleging the knee injury a compensable consequence of...
by KPMLAW | Feb 3, 2021 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Danny Royce, Esq. Several pieces of proposed legislation could create big changes in the landscape of Auto Virginia Liability Insurance Coverage, and could significantly impact the defense of our clients in claims arising from motor vehicle accidents. There are three proposed pieces of legislation before the General Assembly of note and which are being monitored closely by KPM. 1) SB 1182: Motor Vehicle Liability Insurance; Increases Coverage Amounts. This proposed legislation would increase motor vehicle liability insurance coverage amounts from $25,000 to $50,000 in cases of bodily injury or death of one individual, and from $50,000 to $100,000 in cases of bodily injury or death to multiple individuals as a result of one accident. The bill would also require that self-insured operators of taxicabs maintain protection against uninsured and underinsured drivers with current limits of $25,000, $50,000, and $20,000 respectively. This proposed legislation would apply to policies issued or renewed on or after January 1, 2022. This bill advanced out of the Senate Commerce and Labor Committee passed the Senate on January 25, 2021 with a vote of 27 to 11. The bill would amend and reenact §§46.2-419, 46.2-472, and 46.2-2057 of the Code of Virginia relating to liability coverage limits. The text of the new bill can be found at https://lis.virginia.gov/cgi-bin/legp604.exe?211+ful+SB1182. The current amount of liability coverage ($25,000) required by statute was first enacted in 1975, and has not been updated since that time. This would represent a huge change for carriers, insureds and claimants. 2) SB 1195: Motor Vehicle Insurance; Underinsured Motor Vehicle, Uninsured Motorist Coverage. This proposal would have a...
by KPMLAW | Feb 2, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by James T. Taylor, Esq. Edited by William J. Pfund, IV, Esq. It was every employer’s worse nightmare. On August 26th, 2015, at 6:46 a.m., Lester Flanagan, a disgruntled former employee of WDBJ, ambushed two of his former colleagues as they were conducting a live televised interview of Victoria Gardner at Bridgewater Plaza in Moneta, Virginia. He shot and killed both of his former colleagues before wounding Gardner, the interviewee. Gardner only survived by feigning death and remaining completely still. Two years prior, Flanagan was terminated from WDBJ following a history of verbal and physical abuse toward co-workers. During his termination meeting, Flanagan slammed his fist down on the table and warned, “I’m not leaving, you’re going to have to call the f***ing police…I’m going to make a stink and it’s going to be in the headlines.” Later as he was escorted from the building by police, he gave a small wooden cross to a news director and insinuated, “You’ll need this.” As a result of the shooting, Victoria Gardner filed a $6,000,000.00 lawsuit against WDBJ for negligently hiring and negligently retaining Lester Flanagan. Gardner’s lawsuit alleged that WDBJ failed to find troubling aspects of Flanagan’s background before hiring him, then waited too long to fire him the following year after he verbally abused and physically threatened co-workers. Plaintiff tried unsuccessfully to argue that a business proprietor-invitee relationship was established giving rise to a duty to Ms. Gardner. However, the case was dismissed in June 2020 on demurrer because Plaintiff failed to establish that a duty was owed to Ms. Gardner by WDBJ. While Virginia courts have generally...
