by KPMLAW | May 18, 2021 | KPMBlog, News, Profiles
Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. When a claimant is injured at a construction site, his attorney typically names the general contractor as the lead defendant in the case and the party responsible for the condition that gave rise to the injury. The general contractor’s first response is to quickly bring third party claims against multiple subcontractors who may have had involvement with whatever part of the construction project gave rise to the personal injury claim. Those third party claims usually consist of two main theories of recovery. The first theory is the standard negligence claim. For example, the framer responsible for securing cross beams negligently performed his work, thus causing the beam to fall and strike the pedestrian. However, the more powerful claim is often rooted in an indemnification clause that the subcontractor accepted as part of the contract when it agreed to perform a portion of the construction project for the general contractor. That clause may read something like “subcontractor agrees to indemnify and hold harmless general contractor for any and all claims arising out of [the construction project], caused by or resulting from the negligence of either the subcontractor or the general contractor.” The general contractor will assert in its third party claim that this indemnification clause requires the subcontractor to assume the defense of the case and pay for any judgments taken against the general contractor in the underlying suit. But is this contract valid under Virginia law, and does the subcontractor have to accept the general contractor’s tender? Many states have taken action to protect subcontractors with diminished bargaining...
by KPMLAW | May 11, 2021 | Events, KPMBlog, News, Profiles, Uncategorized
Written by Robert Worst, Esq. Edited by Bill Pfund, Esq. Does anyone remember that Ethan Hawke, Uma Thurman, Jude Law futuristic movie from the 90’s “Gattaca”? In it, humans could purchase select genetic characteristics for children if they had enough money. The outcasts were the children born naturally without genetic enhancement. One particular threat in the movie was that insurance companies had begun basing insurance coverage and rates on a person’s level of genetic enhancement and would not insure natural, non-modified persons due to the perceived higher risk of illness, injury or death. The movie tapped into our collective fear over the loss of control of our private information and big business’s ability to use that information against us. One area of Virginia insurance and motor vehicle law codified that fear by protecting another form of personal information: the way we drive. The result is that potentially useful information recorded by the Airbag Control Module after an accident may be difficult or impossible to obtain. The Virginia General Assembly introduced House Bill 816 in 2006 amending Virginia’s insurance and motor vehicle laws to prohibit insurers from using data recorded by motor vehicles against the vehicle’s owner. Va. HB 816 added a new subsection “s” to Va. Code §38.2-2212. This statute already prohibited insurers from refusing to renew a motor vehicle insurance policy solely because of constitutionally protected status such as age, gender, and race. The new section “s”, however, also included “the refusal of a motor vehicle operator … to provide access to recorded data from a recording device” in the vehicle. A new section, Va. Code §38.2-2213.1, further...
by KPMLAW | May 4, 2021 | KPMBlog, News, Profiles
Written by Nick Marrone, Esq Edited by Bob McAdam, Esq. Jurisdictions differ as to who controls medical treatment in workers’ compensation claims. In Virginia, when an employee is injured in a compensable claim, the burden is on the Employer and Insurer to furnish a panel of three physicians from different facilities/or practice groups for the Claimant from which to choose. If two or more of the physicians are from the same facility or practice group, even if they practice out of different locations, the panel will be invalid. Unfortunately, as practices have consolidated across the Commonwealth creating valid panels have become more difficult. The panel must be provided to the Claimant in writing. Posting it in the bcareak room or putting it into the employee’s handbook will not suffice. A panel will also be invalid if a doctor refuses to treat workers’ compensation patients. Employers and Insurers, therefore, should be sure to have proper panels drafted prior to any report of accident and they should be sure to regularly update them to avoid the issues noted above that can result in an invalid panel. Once selected that provider becomes the treating provider. If a panel is not properly offered to the Claimant, or if the claim is denied, the Claimant is permitted to see the doctor of their choice. It is best to avoid this outcome, of course, as Claimants’ attorneys will often send their clients to Claimant-friendly providers. However, even if a panel is not provided or if a claim is denied once the Claimant establishes a course of treatment – typically at least three visits – with...
by KPMLAW | Apr 14, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Brian Clarry, Esq. Edited by Bill Pfund, Esq. In Virginia, an injured person can recover up to $350,000 in punitive damages if the defendant acted with “willful and wanton negligence.” Whereas compensatory damages (which are not capped) are meant to make the injured person whole, punitives seek to punish the wrongdoer and deter others from similar conduct. Doe v. Isaacs, 265 Va. 531, 536 (2003).[1] It can be difficult, however, to determine whether the defendant’s conduct rises to the level of willful and wanton negligence; there is no bright-line rule, and the court will make a determination based on each case’s unique facts. Alfonso v. Robinson, 257 Va. 540, 545 (1999). There are three types of negligence: 1) Simple Negligence, 2) Gross Negligence and 3) Willful and Wanton Negligence. Simple negligence is easy to understand and spot: think fault. Gross negligence is essentially “shocking fault.” The third level of negligent conduct is “willful and wanton negligence.” This conduct is defined as “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 919.[2] A helpful way to repackage this standard is to ask whether the individual acted in a way that showed that the defendant did not care at all if someone else was about to be seriously injured by the actions he was taking. If the defendant had such utter disregard for the safety of others, then assess if there are...
by KPMLAW | Apr 6, 2021 | Events, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Stephanie Cook, ESQ. Edited by Bill Pfund, ESQ. SB 1108 – Raises Jurisdictional Limits In General District Court SB 1182 – Raises Motor vehicle Liability Insurance Coverage Limits SB 1108 has passed and will become law in Virginia on July 1, 2021. This new law increases from $25,000 to $50,000 the maximum civil jurisdictional limit of general district courts for civil actions for personal injury and wrongful death actions only. Note that $25,000 remains the jurisdictional limit for all other claims such as those involving property damage or breach of contract. It also now requires an appeal bond from a defendant who wishes to appeal a decision from general district court to circuit court by stating, “in a case where a defendant with indemnity coverage through a policy of liability insurance appeals, the bond required by this section shall not exceed the amount of the judgment that is covered by a policy of indemnity coverage.” Previously, if an insured defendant wanted to appeal a general district court decision to circuit court, an appeal bond was not required. Instead, all that was required was a “written irrevocable confirmation of coverage in the amount of the judgment.” As a result of this new law, we will surely see more claims filed in general district court as opposed to circuit court. There is little to no discovery in general district court, so plaintiffs have an incentive to file in general district court rather than circuit court in order to save costs. In addition, there is no jury in general district court. We should also expect to see a flurry of...
by KPMLAW | Mar 21, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Gorman, Esq. Edited by Bob McAdam, Esq. Certain employees may now be able to establish compensability of COVID-19 claims. On Saturday, February 27, 2021, the General Assembly passed two bills making it easier for certain employees, such as health care providers and first responders to claim workers’ compensation for contracting COVID-19 on the job. The two bills considered and passed are as follows: HB 1985 Workers’ compensation; presumption of compensability for COVID-19. Workers’ compensation; presumption of compensability for COVID-19. Establishes a presumption that COVID-19 causing the death or disability of health care providers is an occupational disease compensable under the Workers’ Compensation Act. The bill provides that the COVID-19 virus is established by a positive diagnostic test for COVID-19, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical treatment. The bill provides that such presumption applies to any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after March 12, 2020, and prior to December 31, 2021, the claimant received a positive diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment. The bill provides that such presumptions do not apply to any person offered by his employer a vaccine for the prevention of COVID-19 unless the person’s physician determines in writing that immunization would pose a significant risk to the person’s health. Under this bill, all health care providers are afforded...
