by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Sarah Kathryn Stahling, Esq. Edited by Bill Pfund, Esq. Although plaintiff’s attorneys continue to grow ever more creative with their pleadings and allegations of negligence, it seems obvious that if Driver A rear ends Driver B, it’s not Driver B’s fault. After all, he was the lead car. How was he supposed to avoid an accident with a car behind him? Couldn’t we go so far as to say, at the very least, Driver A was contributorily negligent per se and barred from recovery? Unfortunately, it’s never that simple. This will almost always be a jury issue. The Virginia Supreme Court recently addressed this issue in 2002 in Hot Shot Express v. Brooks, 264 Va. 126. In this case, the driver of a tractor trailer was traveling from Pennsylvania to Virginia. When he got to rural Virginia, he realized he had missed his delivery site and, in light of no shoulder to pull onto, stopped his vehicle in the middle of his travel lane and activated his hazard lights. When he started to pull forward again, he felt an impact at the rear of his trailer – the Plaintiff had apparently wedged her vehicle under the rear of the trailer. At the conclusion of the Plaintiff’s personal injury case, Hot Shot Express moved to strike her evidence on the ground that the Plaintiff was contributorily negligent. After all, she had plainly failed to keep a proper lookout and run into the back of a tractor trailer with flashing hazards. The court denied the motion and explained that the issue of the Plaintiff’s negligence should be submitted...
by KPMLAW | May 11, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Lauren Gibbons, Esq. Edited by Bill Pfund, Esq. The issue of priority of coverage arises on a daily basis for attorneys and claims examiners alike in the world of insurance defense, and are often a source of headache and confusion. In the recent case of Nationwide Mut. Fire Ins. Co. v. Erie Ins. Exch., the Supreme Court of Virginia shed some light on how to properly determine the priority of applicable insurance coverage. 2017 Va. LEXIS 52 (Va. Apr. 13, 2017). In Nationwide, the Supreme Court determined the priority of applicable insurance policies involved in an underlying civil suit arising out of a fatal car accident. Two companies, East Coast and Rodriguez Construction, entered into a subcontract for construction services. East Coast loaned a work truck to Rodriguez under this contract. One of Rodriguez’s employees was operating that vehicle in the course of his employment when he struck another vehicle. The driver of the other vehicle died as a result of the accident and his Estate filed a wrongful death suit against the driver and East Coast. East Coast was eventually nonsuited from the matter, leaving only a potential judgment against Rodriguez’s employee. The issue before the Supreme Court was priority of coverage for the employee. At the time of the accident, East Coast was insured under two Erie policies – (1) Erie Auto Policy and (2) an Erie Umbrella Policy. Rodriguez, on the other hand, was insured by Nationwide and had the following policies – (1) Nationwide Auto Policy (2) Nationwide CGL Policy, and (3) Nationwide Umbrella Policy. The subcontract between East Coast and Rodriguez required...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media. Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker? There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the...
by KPMLAW | Mar 19, 2017 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Mats are such a common part of daily and office life that you probably don’t think much about them. We have doormats in front of our houses and you’ve probably seen long, rubber mats in restaurant kitchens that protect against slips and falls, to name just two common examples. Unsurprisingly, tripping injuries involving mats come up all the time in workers’ compensation law. Even though these injuries occur regularly, the law does not offer a clear test for when an injury involving a mat is compensable. This article discusses the legal factors that the Commission will consider to decide when a fall is compensable. Hopefully it will provide guidance on questions to ask during recorded statements. The Law A basic legal inquiry for determining compensability in Virginia is whether there is a “causal connection” between an injury and the “conditions under which the employer requires the work to be done.” Combs v. Va. Elec. & Power Co., 259 Va. 503 (2000). When the general public is exposed to “similar risks” as those causing the employee’s accident, the accident is not compensable. Id. Based on this test alone, it would seem that many, if not most injuries involving mats would not be compensable since mats are such a common part of daily life. However, the analysis the Commission will apply is highly fact-specific and there seem to be just as many cases where the Commission found that a fall involving a mat was compensable as those finding the injury not compensable. The Court of Appeals has decided a couple of...
by KPMLAW | Feb 28, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month. Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator. Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity. The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally. There must be such parties to the record as can...
by KPMLAW | Feb 20, 2017 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. Virginia law provides compensation for “permanent and total incapacity” in catastrophic cases, such as where the employee has sustained a severe brain injury, loss of multiple body parts in the same accident, or injury resulting in total paralysis.[1] Due to the severity of these injuries, perm total claims are often some of the most expensive and challenging cases faced by employers and claims adjusters in Virginia. On December 22, 2016, the Virginia Workers’ Compensation Commission issued an opinion that appears to support a limited defense against an ongoing permanent and total disability award. Unlike temporary total disability (TTD) benefits, compensation that is paid for permanent and total incapacity is not subject to a 500-week limit and may continue for the Claimant’s lifetime.[2] Nevertheless, the Full Commission’s recent opinion in Robert Withers v. W.A. Fisher & Son Inc., Electrical Co., File No. 1825974 (December 22, 2016) suggests that even in cases of permanent and total disability, if the Claimant fails to cooperate with medical treatment the employer may be able to file an application to terminate ongoing compensation. In Withers, the parties agreed the Claimant had sustained a brain injury, and on August 2, 2007 a Stipulated Order was entered in which both sides agreed the Claimant’s brain injury was so severe that it rendered him permanently unemployable. The Employer paid compensation pursuant to the Award for permanent and total disability beginning October 17, 2006. On April 4, 2016, the employer filed an Application for Hearing which sought to terminate the outstanding PTD award based on the Claimant’s unjustified refusal...
