Author: Chris Bergin, Esq. Editor: Brian Cafritz, Esq. In today’s specialized society, hiring independent contractors is a necessity. As demonstrated in the recent September 2015 Virginia circuit court decision, Cherry v. Palace on Plume St., how one executes the master-servant relationship is a key issue that directly impacts one’s liability. The widely accepted general rule is that employers are vicariously liable for the torts of their employees, but not for the torts of their independent contractors. In today’s environment where road rage, random violence, and binge drinking are commonplace, business owners have a greater burden to provide a safe haven for its patrons. Using independent contractors to perform security service allows the premises owner the benefit of security services, but greatly limits his risk of liability for any torts the independent contractor might commit while performing those services—assault, battery, false imprisonment, and negligence, to name a few. Hiring an independent contractor, however, is not a panacea. A business can still be held vicariously liable for the torts of its independent contractors when certain factors exist. Those factors include scenarios where the independent contractor was hired to conduct work that was: (1) unlawful, (2) a nuisance, (3) inherently dangerous, or (4) likely to produce injury “in the natural course of events,” unless special precautions were taken. Fortunately, the Supreme Court of Virginia has held that security guard work generally does not fall into any of these categories. See Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497 (1971). Yet another boon for the restaurant and retail owner. However, the court may find that the contractor’s negligence is imputed...
Managing Partner of KPM LAW’s Coverage & Fraud division, Gary Reinhardt considers Coverage implications following a Biohazard on an insured’s premises in this episode of...
What should an employer do when an employee announces plans to retire on a definite date? Get the employee a gold watch? Plan a luncheon? Maybe the best answer, at least from a workers’ compensation perspective, is to bid him adieu, immediately. A nightmarish situation can develop if an employee announces his retirement to be effective on a definite date in the future, and then gets injured on the job. This factual scenario was recently addressed by the Supreme Court of Virginia in McKeller v. Northrop Grumman Shipbuilding, Inc. , 2015 Va. Lexis 14. In McKellar, on April 1, 2010 the Claimant advised his employer that he was retiring effective May 1, 2010. On April 15, 2010 the Claimant sustained a compensable injury by accident. The Claimant was placed on restricted duty through the end of April. He retired on May 1, 2010. However, sometime after his retirement the Claimant was found to be totally disabled. The Claimant then filed a claim with the Virginia Workers’ Compensation Commission, seeking temporary total disability benefits. The Deputy Commissioner awarded compensation and medical benefits, finding that although the Claimant was retired his total incapacity entitled him to benefits. The Full Commission, in a 2-1 decision, affirmed the award of medical benefits but reversed the award of compensation, reasoning that the wage loss would have occurred regardless of his compensable injury. The Court of Appeals affirmed the decision from the Commission, concluding that the Claimant’s retirement, not his injury, caused his loss of compensation because the record was devoid of evidence that the Claimant sought or held income-producing employment after his retirement and...
When Kalbaugh, Pfund & Messersmith, PC started in January of 1990 with just two lawyers in a small Richmond office, using rented desks and borrowed computers, we never could have imagined the level of support the corporate and insurance defense world would show us over the next 25 years. Growth to four strategically located offices made us the first defense firm with statewide presence while a progressive atmosphere allowed us to attract top level legal talent. Aside from protecting your good name and corporate brand in the court systems every day, in time, we expanded our services to include litigation and claims management on a national and regional basis. It’s been a remarkable 25-year journey that has led KPM LAW to the place it is today – a firm with an unparalleled commitment to the field and a belief system that drives success for our clients, and continued growth for our dedicated...
Drones are in the air and in the news. This technology currently outpaces many of our standard coverage forms. Gary Reinhardt, Esq. and Managing Partner of KPM LAW’s Coverage & Fraud Department discusses the main concerns insurers are facing when interpreting coverage for this expanding technology. For instance, standard homeowners’ and CGL policies contain an auto and aircraft exclusion. This prevents coverage for the ownership, maintenance, use or entrustment to others of any aircraft owned, operated by, rented by or loaned to an insured. This exclusion even applies if the allegations pertain to improper or negligent supervision. Is a drone really an aircraft? ISO, for instance, recently defined “aircraft” although the endorsement is not common. This definition says that an aircraft is anything not used for carrying passengers or cargo, except for model or hobby aircraft. This exception in the definition may avoid the aircraft exclusion for the homeowner using a drone; just as an “occurrence” with a model or hobby aircraft might result in coverage. However, if the drone is camera-equipped and used in a manner that invades the privacy of someone or results in “personal injury” (as opposed to “bodily injury”), a more difficult discussion arises. Intentional act exclusions and the implications of privacy invasion must be studied to determine coverage for the homeowner. A commercially used drone may not fall within the exception as the drone may not fit the categorization of “model” or “hobby.” Because of this, many carriers are drafting specific drone insurance. Others are trying to fit drone liability issues into the CGL by drafting endorsements. These policies and endorsements address the auto/aircraft...
The Board of Directors of NRRDA (National Retail and Restaurant Defense Association) created the Brian Cafritz Presidential Award to honor Brian’s “dedication, integrity and efforts in guiding the creation of NRRDA.” The award was presented for the first time in Austin, Texas on February 13, 2015 to Brian, and will be presented annually to honor outstanding and exceptional service to NRRDA. Brian joined KPM LAW in 1993 and serves as Managing Partner of the firm’s Restaurant and Retail division. He is heavily invested in this sector and defends the brand of many Fortune 500 companies as well as managing their regional litigation. NRRDA was founded in 2007 creating an industry-wide network and educational community for professionals dedicated to the defense of claims in the Retail and Restaurant industry. Brian was one of NRRDA’s primary founders and was elected its inaugural President, ultimately serving two terms. Under Brian’s leadership NRRDA grew to over 500 members across the nation and is widely recognized as the industry leader. Since completing his term as NRRDA’s president, Brian continues to sit on the Past Presidents Committee, the Board of Directors, and other committees. “What Brian has done with NRRDA is nothing short of phenomenal,” said KPM LAW’s President Chip Kalbaugh. “Having the vision to help create this influential organization, and the drive to see it through, defines Brian’s character and client dedication. Brian is a worthy standard bearer of NRRDA, and this sector, and KPM LAW is pleased to continue our support as one of its flagship firms.”...
