by KPMLAW | Sep 18, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Delia DeBlass, Esq. Edited by Bill Pfund, Esq. There are certain considerations when dealing with a case that has joint tortfeasors as co-defendants. Joint tortfeasors are two or more persons whose negligence in a single accident or event causes damages to another person. Often such a situation occurs when a plaintiff injured in a multi-vehicle car accident where there is a disagreement as to the cause of the accident. While not mandatory, a plaintiff does have the option of suing all joint tortfeasors in a single action, as co-defendants. If, however, a plaintiff only files against one joint tortfeasor, that named joint tortfeasor then has the option of bringing into the suit any and all additional tortfeasors as third-party defendants. Regardless of how plaintiff choses to bring suit, joint tortfeasors are held jointly and severally liable for damages. This means that each tortfeasor could be responsible for the entire amount of the judgment against all joint tortfeasors. Because joint tortfeasors are held jointly and severally liable, there is also a right to contribution among tortfeasors. Contribution is a common law concept that has roots in equitable principles. In this context, it means that if one joint tortfeasor has been sued and has been made to pay a certain sum to plaintiff, then that tortfeasor may sue other tortfeasors who may also be liable to the plaintiff in order to recover some of the money paid. For example, if a plaintiff were to bring suit against only one tortfeasor, Tortfeasor #1, and Tortfeasor #1 is found to be liable to the plaintiff, Tortfeasor #1 can then bring suit...
by KPMLAW | Aug 27, 2018 | KPMBlog, News, Profiles, Uncategorized
Have you ever noticed that successful people are seldom successful at only one thing? Successful people tend to have character attributes that translate across disciplines to allow for success in multiple arenas. When considering attorneys to join the KPM team, activities outside the law are just as important as those credentials evident in a legal career resume. KPM is proud of the team members who are marathon runners, celebrated opera singers, competitive cyclists, and globally-ranked Ironmen. The tenacity these individuals show in these personal pursuits tends to be every bit as evident in their legal practice. Consider KPM’s Southwest Virginia office’s Matt Liller. Matt is a successful attorney respected by peers, clients, and opposing counsel, working hard to build his practice in Virginia and West Virginia. But Matt works equally hard at his bodybuilding practice – and the practice of the law and bodybuilding indeed have a lot in common. Matt begins most weekdays by 4:00 AM to get in a workout and two meals before getting to the office. Alongside the legal pads and pens, you’ll always find a protein bar in his briefcase at any deposition to squeeze in a meal if necessary. He has taken note that in both bodybuilding and legal practice the biggest differences are usually made when nobody is watching. Matt says, “The hard work behind the scenes allows you to shine when the lights are on.” Matt prides himself in being cordial and professional, but when the inevitable times come to be stern or take a hard stand for a client, he’s found that his muscular stature can help get his point...
by kpmAdmin | Aug 21, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Lee Hoyle, Esq. Edited by Brian Cafritz, Esq. The first and often most important fight in most civil cases is where the case will be litigated. Plaintiffs generally prefer state court, while defendants often prefer federal court. A defendant’s ability to remove a state court action to federal court can greatly impact the litigation as a whole. For most cases involving retailers and restaurants, the most common way for a defendant to assert federal jurisdiction is Diversity of Citizenship. If the plaintiff and defendant are citizens of different states (and the claim is over $75,000), the defendant can remove a case filed in state court to federal court. However, when plaintiffs seek to prevent their case from being removed to Federal Court, they will often name an employee who is a citizen of the forum state as a second defendant. This is known as the forum defendant rule. 28 USC 1441(b)(2) provides that, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 1332(a) includes diversity jurisdiction based on citizenship of different states and citizenship of foreign states. Under this rule, a Maryland Plaintiff may sue a Georgia company and a Virginia employee in a Virginia Court. In this instance, even though the plaintiff and both defendants are all from different states, the case is not removable to federal court because the individual employee is a citizen of the state...
by kpmAdmin | Aug 16, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Stephanie G. Cook, Esq. Edited by Willian J. Pfund, Esq. In a product liability case tried this year in Roanoke City Circuit Court, the trial judge dismissed a 4.2 million verdict for a plaintiff upon post-trial motions, finding that the evidence established contributory negligence as a matter of law. On appeal, the Supreme Court of Virginia affirmed the dismissal, but it found in favor of the defendant on the alternative basis that the Estate failed to establish negligent design as a matter of law. In Evans v. NACCO Materials Handling Group, Inc., 295 Va. 235 (2018), the Estate of a paper plant worker filed suit against the manufacturer of a lift truck after the worker was crushed and killed by the lift truck he had been operating. The deceased worker’s lift truck got stuck between a dock plate and the edge of a trailer he had been loading. He and a co-worker attached a chain to his truck so it could be pulled out by the other lift truck. He applied the parking brake and turned the engine off, but apparently other workers had loosened the brake. The truck was on an incline, and the noise in the plant prevented him from hearing warnings that the truck was rolling towards him. The alarm on the truck did not sound, and chocks were not placed under the wheels. While the deceased worker had received some training on how to operate the truck, he was never certified; and federal law required such certification. The Estate claimed that the parking brake on the lift truck was negligently designed. It also...
by kpmAdmin | Aug 16, 2018 | KPMBlog, News, Profiles, Uncategorized
Written by Nick Marrone, Esq. Edited by Rachel Riordan, Esq. Probably every adjuster has come across a provider application filed by the medical provider of a claimant. Under the Virginia Workers’ Compensation Act (“the Act”), if a provider disputes the amount an insurer has paid for a medical bill or claims the insurer has not paid anything towards the bill, the provider can independently file a claim with the Commission seeking payment from the insurer. The provider’s claim (e.g., the provider application) is filed under the claimant’s Jurisdiction Claim Number. When the application refers to treatment that has occurred from July 1, 2014 or later it must be filed within one year of the date the provider last received payment or within one year of the date the medical award covering the date of service of a contested billing becomes final. See Virginia Code § 65.2-605.1(F). But what happens when a claimant files a claim for benefits seeking payment of unpaid medical bills from a provider? I am not talking about a claim for out-of-pocket expenses, but a claim filed that seeks the balance due to a medical provider which the insurer disputes. If such a claim is filed should the adjuster pay the claimant the balance due to the provider? Should the adjuster pay the balance to the provider directly? The adjuster should do neither. The provider that seeks the balance of a bill from a claimant is acting in violation of the Act; they are committing what is called “balance billing”. Under § 65.2-714(D) of the Act a medical provider may not bill a claimant for the...
by kpmAdmin | Jul 20, 2018 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea Edited by Brian A. Cafritz Last year, the KPM LAW Newsletter addressed whether a restaurant or retail establishment could be held vicariously liable for a defamation claim against an employee due to the employee’s social media post. If the employee was acting within the scope of his or her employment at the time she made the post, the employer could be held liable. Therefore, what should the employer know about the customer’s defamation claim? In Virginia, actions for defamation are akin to actions for slander or libel. The first step in the analysis is for the trial judge will make a determination, as a matter of law, whether the “statement makes substantial danger to reputation apparent.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (Va. 1985). If the answer is yes, the simple negligence standard applies. If the answer is no, the tougher New York Time’s malice standard applies. If the negligence standard applies, the plaintiff need only prove that (1) the statement was false, and (2) the defendant either knew it to be false, lacked reasonable grounds to believe it to be true, or acted negligently in failing to ascertain whether it was true or false. Id. If the New York Time’s malice standard applies, the Plaintiff must prove either the statement was made with knowledge that it was false or that defendant acted with reckless disregard of whether it was false or not. Id. citing New York Times Co. v. Sullivan, 376 U.S. 254, 268 (U.S. 1964). If the New York Times standard applies, truth is affirmative defense, and the burden of proving...
