by KPMLAW | Jan 26, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Ben Woody, Esq. Edited by Bill Pfund, Esq. The capsizing of a vessel operated by a police officer has highlighted a stark contrast between the application of sovereign immunity in state and federal courts in Virginia. The City of Norfolk contracted with Willard Marine, Inc., to perform certain repairs to the City’s SAFE Boat. When Willard Marine returned the repaired vessel to the City, a Norfolk police officer and two other City employees accepted delivery on its behalf. The officer, who was otherwise unqualified to navigate the vessel, conducted a sea trial with two Willard Marine employees, Glover and Pridemore, aboard. The officer perceived steering and handling issues with the SAFE Boat and, without warning the Willard Marine employees, pushed the vehicle to high speed and steered hard to starboard, causing the vessel to capsize and injuring Glover and Pridemore. The employees sued under a variety of theories in parallel state and federal litigation. In the state case, the plaintiffs sued under theories of common law negligence and gross negligence. In the federal case, the City moved to dismiss the claims on the basis that, among other reasons, sovereign immunity barred the plaintiffs from recovery. Glover v. Hryniewich, 2018 U.S. Dist. LEXIS 64920, at *8 (E.D. Va. Apr. 16, 2018). The Eastern District of Virginia found, however, that sovereign immunity was not available to the City for two reason: first, the sea trial was not a government function; and second, the City was not an arm of the state. Id. at *13, 15. The Court noted that sovereign immunity protected municipal shipowners in in rem proceedings (against...
by KPMLAW | Jan 22, 2019 | KPMBlog, News, Profiles, Uncategorized
Written by Porter Peery, Esq. Edited by Bill Pfund, Esq. The improvement in artificial intelligence (AI) over the last few years has impacted several industries including insurance. In a survey by Accenture “a full 75% of 550 insurance executives said they believe that AI will either significantly alter or completely transform the overall insurance industry in the next three years.” Machine learning algorithms are already playing a key role in product design, sales, services, fraud detection, risk evaluation and claims resolution. In another Accenture survey, the two keys to a satisfactory customer claims experience were speed of settlement and transparency of process. AI can improve and streamline the claims process through automated data entry, compliance tracking, fraud screening and even analysis and predictive modeling. By removing what used to be manual steps, an adjuster will be freed up to utilize their experience where it can count the most. Increasing the efficiency of claims processing and reducing loss adjustment expenses will reduce overall costs and help make the carrier’s premiums stay more competitive. (1) Despite these benefits, the use of AI presents hidden dangers for insurance companies, particularly in such areas as regulatory compliance, law and privacy. There is little apparent on the surface as to just how AI makes conclusions or solves problems while performing tasks. The concerns are especially relevant for the insurance industry which needs to comply with a number of industry and government regulations. Algorithms do malfunction and although these mistakes may be different from those typically made by humans, there will likely be legal ramifications. Who will be held responsible if a machine makes an...
by KPMLAW | Jan 22, 2019 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Back in September, KPM’s Joe Smith updated you about the Commission’s recent decision of Norris v. ETEC Mechanical Corporation, JCN:VA00001317384 (June 25, 2018). Norris involved a claimant who sustained serious injuries in a car accident after he fell asleep at the wheel. By Norris’s own admission, he “dozed off.” He said he’d done it before and added that “I guess this time I didn’t wake up.” The Commission denied benefits, holding that the accident did not “arise out of” his employment. Specifically, the Commission found that Norris had failed to prove a “causal connection between [his] employment and his untimely slumber…” Since Joe’s update, the Court of Appeals reviewed the Commission’s decision in Norris. In the published decision of Norris v. ETEC Mechanical Corporation, Record No. 1054-18-2 (Dec. 28, 2018), the Court agreed with the Commission that Norris could not recover under the Workers’ Compensation Act. The Court’s Norris opinion begins by explaining the difference between an injury occurring “in the course of” employment and “arising out of” employment. Norris, who was driving a company vehicle at the time of his crash, was clearly “in the course of” his employment. However, Norris still needed to prove a “’critical link’ or causal connection between the conditions of his work and falling asleep behind the wheel.” The Court held he failed to do this. The reason Norris lost was because he “denied knowing what caused him to fall asleep.” Although he “testified that he dozed off because he was tired,” he “never related his drowsiness to his employment.” He also admitted...
by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Helen Jhun, Esq. Edited by Bill Pfund, Esq. As more individuals look to alternatives to traditional hotels when planning vacations and short term trips, the Virginia Supreme Court recently set forth what standard of care the owner of a short term rental property owner owed to its renter. In the recent Virginia Supreme Court case of Haynes-Garrett v. Dunn, the Court addressed the issue of whether the owner of a short term vacation rental owed the duties of a landlord or the duties of an innkeeper. 2018 Va. LEXIS 131, 818 S.E.2d 798, 2018 WL 4783257 (October 4, 2018). Under Virginia common law, a landlord has “no duty to maintain in a safe condition any part of the leased premises that [is] under [a tenant’s] exclusive control.” Isbell v. Commercial Inv. Assocs., 273 Va. 605, 611, 644 S.E.2d 72 (2007). Absent fraud or concealment, the tenant takes the premises in whatever condition they may be in, and assumes all risk of personal injury from defects therein. There is an elevated duty of care imposed an innkeeper. An “innkeeper” is defined as “[a] person who, for compensation, keeps open a public house for the lodging and entertainment of travelers.” Black’s Law Dictionary at 792 (7th ed. 1999). These are generally accepted to mean owners who run hotels, motels, and resorts. Unlike a landlord, an innkeeper owes a duty “to take every reasonable precaution to protect the person and property of their guests and boarders.” Crosswhite v. Shelby Operating Corp., 182 Va. 713, 716, 30 S.E.2d 673 (1944). The duties owed by an innkeeper are significantly greater than those...
by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Kevin Kennedy, Esq. Edited by Bill Pfund, Esq. The long term effects of brain injuries have been increasingly studied in recent years and the corresponding rise in public awareness has changed the focus of many plaintiff’s cases. While headaches and memory loss were previously viewed as difficult injuries to ask a jury to quantify when compared to broken bones, those symptoms now form the basis of a claim for a traumatic brain injury. But plaintiff’s attorneys making these claims often lack objective proof from a traditional CT scan of the plaintiff’s brain to support the subjective testimony put forth to prove a brain injury. Diffuse Tensor Imaging (DTI) has been increasingly favored by plaintiff’s attorneys and championed as cutting edge technology that is more sensitive and can provide objective evidence of a brain injury when old methods failed to show any abnormality. Are these claims accurate and have plaintiffs found the evidence needed to bridge the gap between unreliable personal testimony and indisputable scientific findings? Understanding the current state of DTI technology and the limits of the science are key in evaluating its admissibility and weight at trial in a brain injury case. DTI is an MRI based imaging technique that uses water diffusion to measure the brain’s white matter tracts. To strip the technology down to its most basic explanation, when water is dropped on a smooth, uniform surface, it diffuses in a uniform manner. When water is dropped on an uneven surface, it diffuses in an uneven manner. Our brains are not a smooth, uniform surface so when water molecules are dispersed throughout the brain,...
by KPMLAW | Nov 19, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Jessica Gorman, Esq Edited by Rachel Riordan, Esq. Virginia Code section § 65.2-503 outlines the requirements for an injured worker to obtain benefits for any permanent impairment sustained as a result of a work accident and lists those scheduled body parts for which benefits may be awarded. However, under certain circumstances, injured workers have been able to obtain permanent partial disability benefits (“ppd”) even if the direct injury from the accident is not on the schedule listed. Burden of Proof: In order to obtain benefits under Code § 65.2-503 for the loss of use of a particular body member, an injured worker must establish that (1) he has achieved maximum medical improvement and (2) that his functional loss of capacity be quantified or rated. Cafaro Constr. Co. v. Strother, 15 Va. App. 656, 661, 426 S.E.2d 489, 492 (1993) (citing Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 678-79, 401 S.E.2d 213, 215 (1991)). The Commission, in determining permanent partial disability benefits, “must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented” to it. Hobson, 11 Va. App. at 677, 401 S.E.2d at 214-15 (citing Cty. of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977)). “In order to recover, [the injured worker has] the burden of establishing by a preponderance of the evidence the existence of a disability which was the consequence of the injury by accident.” Id. at 678, 401 S.E.2d at 215. When the evidence is analyzed, actual functional loss of use must be demonstrated. Gaskins v. Arlington Cnty., JCN VA00000034125 (Nov. 15, 2011) (citing...
