by KPM LAW | Sep 7, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by: Jessica Relyea Edited by: Brian A. Cafritz As we previously explained, Virginia allows for one nonsuit, or voluntary dismissal, by plaintiff per case. A nonsuit allows the plaintiff to correct a flaw in their case and reset the matter to the start in a future filing, with no real penalty or hardship. While it is a powerful tool at plaintiff’s discretion, it does not shield plaintiff from their own wrongdoing. This begs the question of what happens if plaintiff waits to nonsuit their case until after a defendant gets a favorable verdict in General District Court? Can plaintiff appeal and nonsuit, allowing it to refile in district court and obtain a new trial, essentially voiding the judgment? Can the defendant move to dismiss the refiled pleading on the grounds of res judicata because the first district court judgment is final? To understand this issue, a little background is important. In Virginia, the district court is a court of limited jurisdiction. The maximum recovery is $25,000, discovery is limited, and a judge decides all cases. Either party can appeal the judge’s verdict to the Circuit Court for a de novo jury trial. Importantly however, is that if there is a defense verdict in district court, then on appeal, plaintiff cannot increase his or her ad damnum and seek more than $25,000. Afify v. Simmons, 254 Va. 315, 317-318 (1997). If plaintiff nonsuits after an appeal to Circuit Court, but before the jury trial, where does the case get refiled? What rules apply when it does? This issue came before the Supreme Court in the 2011 case of Davis...
by KPMLAW | Aug 25, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Henry U. Moore, Esq. Edited by Bill Pfund, Esq. It is not an uncommon scenario in general liability cases for multiple plaintiffs to be injured in one accident – this is especially common in motor vehicle cases. Under Virginia law, each injured party has their own separate cause of action for their own physical injuries and emotional distress resulting from those injuries. However, the lines can become blurred between causes of action when a plaintiff makes a claim that they suffered emotional distress damages from witnessing the injuries to another party. For instance, this scenario can arise in a motor vehicle accident where more than one person in the same car is injured, and one plaintiff claims he suffered emotional distress from witnessing the injury or death of his fellow passenger. These are commonly referred to as negligent infliction of emotional distress (NIED) or “bystander” claims, and they are very hard to establish under Virginia law. Virginia is in the minority of states that do not allow recovery for solely emotional distress experienced by family members or bystanders in close proximity to the injury or death of another – even if that ‘bystander” is himself involved or injured in the accident. Rather, a plaintiff must show that they suffered accompanying physical injury resulting from the emotional disturbance or distress. In Hughes v. Moore, 214 Va. 27 (1973) the Virginia Supreme Court laid out this rule for bystander claims that is still in force in the Commonwealth. There, a driver ran his car off the road, struck a vehicle parked in the plaintiff’s driveway, and crashed into the...
by KPMLAW | Jul 29, 2020 | Court, KPMBlog, News, Updates
The Newest Order from the Virginia Supreme Court extending Declaration of Judicial Emergency through August 30, 2020 can be found here. Jury Trials remain suspended. Each Circuit Court is to send its individual plan to the Virginia Supreme Court for approval by a three Judge Panel from the Virginia Supreme Court. The Period of Judicial Emergency has been extended to August 30, 2020. Please note, tolling provisions for statutes of limitations and case related deadlines ended July 20, 2020 (see Seventh Order Extending Declaration of Judicial Emergency in Response to COVID-19...
by KPMLAW | Jul 8, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized
Written by Gary Reinhardt, Esq. The Bureau of Insurance strongly encourages insurers and other licensees to be flexible and take into consideration the hardships and constraints many individuals and businesses are experiencing during this unprecedented public health emergency. For this reason, the Bureau encourages those it regulates to consider taking the following actions, consistent with prudent insurance practices: Insurers should consider relaxing due dates for premium payments, extending grace periods, waiving late fees and penalties, and allowing payment plans for premium payments to otherwise avoid a lapse in coverage. Insurers should also consider cancellation or non-renewal of policies only after exhausting all other reasonable efforts to work with policyholders to continue coverage. (Bureau of Insurance bulletin, March 27, 2020) The Bureau of Insurance (BOI) is not mandating that insurers provide flexibility with this statement, merely that insurers “should consider” not canceling policies if insureds have COVID-19 related issues that hamper premium payments. However, some insureds are taking advantage of the extensions of insurers and using this to shop rates or just take a break from premium payments. If insureds do not renew a policy, an insurer does not have to jump through all of the cancellation hoops contained in title 38.2 of the Code of Virginia. If an insured does not respond to an offer to renew, the policy lapses and the insured has no coverage as of the timeframe contained in the policy. Almost if not every insurer initially conditions renewal on receipt of premium when the insurer makes its first offer of renewal. This condition on receipt overrides any claims that simply mailing the premium prior to...
by KPMLAW | Jul 8, 2020 | Court, KPMBlog, News, Updates
The 7th Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency can be found here. The new date through which the extension applies is August 9, 2020. Included in the new Order is the following: Plans for restarting jury trials, as required by Paragraph 16 of the Sixth Order, shall be submitted by Chief Circuit Court Judges to the Chief Justice. Jury trials may be held as soon as the plan has been submitted and approved by a panel of three Justices in consultation with the Office of the Executive Secretary. No jury trials shall occur in any locality in the Commonwealth for the duration of this Order, unless and until the plan applicable to the locality has been approved by the panel. The tolling period as a result of the Judicial Emergency for such statutes of limitation and deadlines shall be limited to March 16, 2020 through July 19,...
by KPMLAW | Jul 2, 2020 | KPMBlog, News, Profiles, Uncategorized, Updates
It’s a new day in the Commonwealth of Virginia. Bill Pfund reviews new laws affecting the insurance industry as well as those of general interest in the presentation below. View the slides or click here to watch the recording. ...
