by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. A recent unpublished opinion by the Virginia Court of Appeals provides important guidance on what a claimant must show to prove that an injury “arose out of” his or her employment. In United Airlines, Inc. v. Taylor, No. 1169-15-4, 2016 Va. App. LEXIS 72 (Va. Ct. App. March 15, 2016), the claimant’s work accident was found non-compensable despite the fact that he lost his balance and fell down several stairs while carrying items totaling around 35 pounds. This case should serve as a reminder that the claimant must show not only that he was injured at work, but that “a condition of the workplace either caused or contributed” to the injury. See Southside Virginia Training Ctr./Commonwealth of Virginia v. Shell, 20 Va. App. 199, 202, 455 S.E. 2d 761, 763 (1995). In other words, the fact that the claimant is carrying something at the time of his injury does not necessarily mean the accident is compensable. In Taylor, the claimant was employed as a ramp agent for United Airlines. His job duties included unloading baggage and other cargo from aircraft. On the day of the accident he was walking up a set of metal stairs while holding two strollers under his arms. Taylor estimated the stroller in his right hand weighed approximately thirty pounds, while the stroller in his left hand weighed about five pounds. As he was walking up the stairs his right knee “popped,” causing him to fall down the stairs and onto his back. His knee then popped back into place. Taylor admitted that the stairs...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Bryan Snyder, Esq. Edited by Chip Kalbaugh, Esq. Recently, the Supreme Court of Virginia was provided the opportunity to reconsider its position on whether or not it recognizes an independent claim for spoliation of evidence. Spoliation of evidence is typically defined as the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. Initially, the issue arose from a workers’ compensation case when Steve E. Johnson, an employee of Southern States Cooperative Inc. was badly burned by a space heater while working in a warehouse in Henrico County. His injuries occurred when his clothes were ignited as he attempted to start a propane heater on a cold February morning in 2013. Johnson pursued a workers’ compensation claim for both medical damages and lost wages. He claimed that the space heater was a product normally sold by Southern States Cooperative. In addition to his workers’ compensation claim, Johnson also intended to seek recovery on a possible product defect claim, and requested that Southern States preserve the propane heater as evidence. Later, when Johnson’s lawyers and experts requested to examine the heater, they learned that Southern States had thrown it away. In response, Johnson’s lawyers filed a $7.5 million lawsuit for spoliation of evidence arguing that Southern States “negligently interfered with Johnson’s right to pursue a products liability suit.” The elements of a claim for spoliation of evidence are: (1) pending or probable litigation involving the plaintiff; (2) knowledge on part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by the defendant designed to disrupt plaintiff’s...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Gary Reinhardt, Esq. Glass Companies are battling insurers throughout the country claiming that the insurers’ glass claim programs amount to improper “steering.” One particularly active group filed a petition titled “National Right to Fair Trade Petition.” This petition argues that insurers’ glass programs may violate antitrust laws. In order to be ready for such claims, the insurer needs to act consistently and adhere to its insurance policy. A recent skirmish between a glass repair company and insurers resulted in an early win for the insurers. In Clear Vision Windshield Repair, LLC, as assignee of Star Davis v. Elephant Insurance Company (numerous companion cases accompanied this ruling involving Erie Insurance and First Liberty), the Henrico Circuit Court granted the insurers’ demurrer and dismissed Clear Vision’s cases, with prejudice. Clear Vision alleged that it performed windshield chip repair on windshields of each insured. Clear Vision attempted to gain an assignment of insurance benefits from each insured. As part of its contract for services, Clear Vision sought this assignment of insurance policy benefits and agreed not to pursue the insured personally for the cost of its services (costs were also disputed but the Court never reached that issue). All of this took place, including the alleged repairs, prior to the claim being reported to the insurer. Neither the insured nor Clear Vision obtained consent from the insurer for this attempted assignment. The insurers refused Clear Vision’s demand for payment under the policy. In response, Clear Vision sued each insurer in General District Court seeking not only $150 per insured for chip repair(s) but also bad faith double damages, costs and...
by KPMLAW | Apr 25, 2016 | KPMBlog, News, Uncategorized, Updates
The issue of transgender restrooms continues to evolve, and last week, the Fourth Circuit Court of Appeals in Richmond, Virginia became the first federal court to weigh in on the issue. The ruling comes in the case of G.G. v. Gloucester County School Board. The case has received a great deal of attention due to the recent controversial legislative enactments in North Carolina and other states, which have attempted to legislate which restroom transgender persons must use. G.G. was born female and when the vents of this lawsuit had taken place, had begun hormone therapy. G.G. legally changed his name to a traditionally male name and prior to his sophomore year, informed the school that he was a transgender boy. By all accounts, G.G. lived all aspects of his life as a boy. In late 2014, the Gloucester County School Board prohibited G.G. from using the male restroom in his high school. G.G. sued the School Board on the grounds that the school discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution, and he moved for a preliminary injunction to stop the school’s restroom prohibition. The District Court denied the injunction, holding that G.G. lacked sufficient evidence after it refused to consider hearsay expert testimony on the topic. It further held that using a unisex bathroom in the school was not unduly burdensome compared to the hardship to the other students caused by G.G’s presence in the men’s restroom. Finally, the District Court granted the School Board’s Rule 12(b)(6) Motion to Dismiss the Title IX allegations, claiming that requiring G.G. to use...
by KPMLAW | Apr 24, 2016 | KPMBlog, News, Uncategorized, Updates
KPM LAW is honored to have two of its attorneys selected to the 2016 Virginia Super Lawyers list, as well as an attorney selected to the 2016 Virginia Rising Stars list. Partners Claire Carr and Brian Cafritz, both of the Richmond office, have been named to the 2016 Virginia Super Lawyers list, while Rachel Riordan, also a partner in the Richmond office, has been named to the 2016 Virginia Rising Star list for a second time. Super Lawyers, a part of Thompson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of recognition and professional achievement. Super Lawyers utilizes a patented and multiphasic selection process that includes peer nominations, evaluations, and independent research by Super Lawyers. The Super Lawyers List recognizes no more than 5% of Virginia attorneys while the Rising Star list recognizes no more than 2.5%. Please join us in congratulating Claire, Brian and Rachel on their achievements in the...
by KPMLAW | Mar 22, 2016 | KPMBlog, News, Uncategorized, Updates
Defending Cases in General District Court Written by Lindsey D. Hunt Edited by Janeen B. Koch With more and more cases being filed in General District Court these days, it is worth taking a closer look at the procedural and discovery rules that govern in that court. Jurisdictional Limit/Advantages The maximum amount that may be sued for in General District Court is $25,000. Circuit Courts may hear civil cases in which the amount in controversy is over $4,500 but many less serious property damage and personal injury cases are now being filed in General District Court. Cases in General District Court are heard and decided by the judge. There are no juries in General District Court. With the limited discovery available in General District Court (as discussed further below), trying cases in General District Court is generally less expensive and less time consuming. General District Courts are “courts not of record” which means that, unlike Circuit Court, there is no automatic recording of the proceedings. However, Rule 7A:6 provides that the court may allow recording of the proceedings by a court reporter or other means. If the defense believes the plaintiff will lose in General District Court, and that it’s likely the plaintiff will appeal, it is worth considering having a court reporter present to capture the plaintiff’s testimony. This testimony could then be used if the plaintiff attempts to provide inconsistent testimony on appeal. Right to Nonsuit One of the often frustrating aspects of civil defense practice, in both General District Court and Circuit Court, is the right of nonsuit. Virginia Code Section 8.01-380 provides that a party...
