by KPMLAW | Apr 28, 2020 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Kate Adams, Esq. Edited by Bill Pfund, Esq. With the ever changing world we live in testimony in person is moving toward becoming a thing of the past for certain non-critical witnesses. A new rule that went into effect on March 15 addresses the need to embrace technology and its use in our civil trials. Virginia Supreme Court Rule 1:27 provides guidance to the court and litigants as to when and what witnesses should be permitted to testify through an audiovisual link as opposed to in person at trials and hearings. The discretion to allow testimony to be presented in this manner and what witnesses it applies to, as with most rules is left to the court’s discretion. However, the rule contains some strong language directing the court that certain non-critical lay witnesses should be permitted to testify by using a live audio visual link. The new rule states that the court “should” enter an order permitting live testimony by means of audiovisual technology in this following circumstances. Upon consent of all parties If the lay witnesses is more than 100 miles from the hearing location If the witnesses is a superintendent of a hospital for the insane more than 30 miles from the place of trial, If the witness is a physician, surgeon, dentist, chiropractor, registered nurse, physician’s assistant or nurse practitioner who, in the regular course of his or her profession, treated or examined any party to the proceeding, If the witness is in any public office or service the duties of which prevent his attending court Under this new rule parties and expert witnesses...
by KPMLAW | Mar 30, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Bob McAdam, Esq. Edited by Claire C. Carr, Esq. The Court of Appeals of Virginia recently decided a case with potentially far-reaching effects. In Merck & Co. v. Vincent, COA Record No. 0424-19-1, (01/14/2020) the Court explained some of the major pitfalls of the doctrine of compensable consequences. First, what is a “compensable consequence?” The compensable consequence doctrine applies “when the injury does not arise on the day of the accident, but instead develops as a direct consequence of an initial injury.” Under the doctrine of compensable consequences, an employer's liability for an industrial injury extends to “all the medical consequences and sequelae that flow from the primary injury.” The employer is responsible for a natural consequence that flows from the original injury, if it is a direct and natural result of the primary injury. In Vincent, the Court of Appeals affirmed the Full Commission’s affirmation of a deputy commissioner’s award of permanent total disability benefits to a claimant, who lost the use of his left arm while working for the employer and subsequently lost the use of his leg as a consequence of the effects of medication taken for the arm injury—because the compensable consequences of the leg injury arose “in the same accident” as the arm injury for the purpose of Va. Code Ann. § 65.2-503(C). In 2009, the claimant injured his left arm and neck while working for the employer. The deputy commissioner awarded temporary total disability, and the Commission affirmed. The employer did not appeal that award. The claimant underwent surgery to treat these injuries. In 2011, he became dizzy and fell...
by KPMLAW | Mar 8, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Matt Daly, Esq. Edited by Claire C. Carr, Esq. Ayttorneys and claims examiners handling construction litigation know that every construction case starts with coverage issues. In claims against subcontractors, perhaps the most commonly encountered issue is the interplay between an “occurrence” and the “your work” exclusion. Subcontractors facing a claim are often surprised to learn what may and may not be covered when this exclusion comes into play. A recent opinion from the United States District Court for the Western District of Virginia provides a solid blueprint for analyzing this issue. Western World Insurance Company v. Air Tech, Inc. U.S.D.C., West. Dist. Va., Case No. 7:17-CV-518 (Roanoke) involved an insurance dispute between Western World and its insured, Air Tech. The dispute arose after Air Tech was sued for breach of contract and negligence arising from a subcontract agreement that Air Tech entered into with Hall’s Construction Corp. Under the subcontract, Air Tech agreed to supply a Solvent Recovery Chiller for a project Hall’s had undertaken. Air Tech supplied the chiller and was alleged to have been involved in the installation as well. When the chiller failed and required a replacement, Hall’s sued Air Tech for breach of the subcontract and negligence based on: the failure to properly provide the materials and equipment necessary to install the chiller; failure of the manuals provided to accurately describe the equipment and components and required electrical connections; failure of the manuals to accurately describe the work to be performed; and failure to correctly install the chiller. The Western World policy provided coverage for property damage only if caused by an “occurrence.”...
by KPMLAW | Mar 8, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Relyea, Esq. Edited by Brian Cafritz, Esq. In Virginia, by statute, Plaintiff has a right to one nonsuit, or voluntary dismissal, as a matter of right. You can read more about the procedure and rules surrounding a nonsuit here. While a nonsuit is a very important vehicle for Plaintiff to correct defects in their case, it does not shield Plaintiff from a pending motion for sanctions. The Supreme Court of Virginia has held that a trial judge must still hear and decide a motion for sanctions that is pending against Plaintiff, even if Plaintiff files and receives a nonsuit. Williamsburg Peking Corp. v. Xianchin Kong, 270 Va. 350 (2005). In the case of Williamsburg Peking Corp. v. Xianchin Kong, the Supreme Court held that the trial court should have considered the pending motion for sanctions against Plaintiff even after the trial court granted Plaintiff’s motion for nonsuit and entered an order nonsuiting the matter. Id. In that case, a pro se Plaintiff had alleged that Williamsburg Peking Corp. ("Peking") improperly terminated her employment as a waitress. Id. at 352. Plaintiff did not prosecute her case for one year and then filed numerous discovery requests and motions which Peking contended were "inordinately voluminous" and "redundant." Id. Peking responded to the requests in good faith, to which Plaintiff responded with four separate letters objecting to Peking's responses. Id. at 352-353. Peking filed a motion for a protective order, which was granted by the trial court. Id. at 353. Peking then filed a motion for sanctions to recover the more than $16,000 in costs and fees it incurred...
by KPMLAW | Mar 7, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Strobo, Esq. Edited by Claire C. Carr, Esq. In evaluating coverage for a general or subcontractor, it is important to understand not only what is covered by your liability policy, but also when coverage is triggered. The type of coverage will affect when coverage is triggered, and thus affect the types of damages that are covered. Liability insurance policies typically come in one of two forms: claims-made or occurrence-based. As the name suggests, a claims-made policy provides coverage for claims made during the policy period. On the other hand, an occurrence-based policy provides coverage for damage caused by an “occurrence” during the policy period, regardless of when the claim is actually made. Of the two, an occurrence-based policy offers highly valued long-term protection. As an “occurrence” is typically defined by liability insurance policies as an “accident” and an occurrence-based policy provides coverage for damage caused by an “occurrence”, it is easy to assume that coverage is based on when the accident causing the damage occurred. Indeed, a subcontractor who maintains such a policy for a construction project may think that any damage caused by the work it performed during the policy period would be covered, even if the damage actually occurred years after the policy period had expired. To the contrary, an occurrence-based policy insures only against damage occurring during the policy period, not future damage stemming from an act that occurred during the policy period. In many cases, damage occurs simultaneously or shortly after the act that causes the damage. However, in cases where it is unclear when the damage occurred, courts across the nation...
by KPMLAW | Jan 15, 2020 | KPMBlog, News, Profiles, Uncategorized
By Brian Cafritz, Esq. When claims are made against your company, one of the quickest ways to clear that loss from your company’s books is to transfer the risk to a third party. A good Risk Transfer Plan can not only remove the risk of indemnity, but it can also prevent expensive litigation costs and attorney’s fees. Indeed, a well-planned and firmly executed Risk Transfer Program can change the internal perceptions of the risk management and claims management departments. By taking a few simple steps, your risk management strategies will create reduce the number of pending claims and create a flow of incoming money, rather than being seen solely as a source of outgoing payments. Key Principles of the Risk Transfer Program In order to compile a useful Risk Transfer Program, one must understand a few key principles regarding the available theories behind Risk Transfer: Contribution: The right of one tortfeasor to get reimbursement or payment from another tortfeasor to equally or proportionally share the amount owed to a Plaintiff. Contractual Indemnity: A promise in a contract to pay full amounts owed by another. The scope and breadth of the obligation are determined by the language of the contract, but it can often be limited by state laws depending on a state’s public policies. It is common to see a duty of defense attached to the duty to indemnify, but it must be expressly stated in the contract for it to exist. Common Law/Equitable Indemnity: If no indemnity contract is available, Equitable Indemnity exists to shift liability from one who is only passively liable to the...
