Written by Chris Flynn, Esq. Edited by Gary Reinhardt, Esq. A new bill in Virginia that is currently sitting on the Governor’s desk waiting to be signed has the potential to open UM/UIM carriers up to exposure for bad faith negotiations with their insured. SB 256 seeks to amend and reenact §§8.01-66.1 and 38.2-2206 of the Code of Virginia, relating to remedies for bad faith refusal of uninsured/underinsured motor vehicle insurance claims. Specifically, the Bill allows for the insured and/or the insured’s counsel to seek adjudication of a claim that the UM/UIM insurance carrier did not act in good faith by making either a posttrial motion before the court in which the underlying personal injury or wrongful death judgment was obtained or filing a separate action against the carrier. In order for the insured and/or their counsel to take such an action, the Bill sets forth certain conduct that must be alleged and that the Court must subsequently find. The new law would require the following of the UM/UIM carrier: (i) denies, refuses, fails to pay, or fails to make a timely and reasonable settlement offer to its insured under the provisions of any uninsured or underinsured motorist benefits coverage in a policy of motor vehicle insurance applicable to the insured after the insured has become legally entitled to recover, or (ii) after all applicable liability policy limits and underlying uninsured and underinsured motorists benefits have been tendered or paid, rejects a reasonable settlement demand made by the insured within the policy’s coverage limits for uninsured or underinsured motorist benefits or fails to respond within a reasonable time after...
Written by Chris Flynn, Esq. Edited by Bill Pfund, Esq. An earlier article addressed two reasons why asking if a plaintiff has filed for bankruptcy during discovery is an overlooked but important question. Those reasons are to raise the issue of the admissibility of the debtor-plaintiff’s medical bills as well as to challenge the standing of that debtor-plaintiff in the non-bankruptcy matter. The question of standing however is exclusive to Chapter 7 debtor-plaintiffs (see Wilson v. Dollar General Corp., 717 F3 337, 343-44 (4th Cir. 2013)). Therefore, aside from challenging the admissibility of the debtor-plaintiff’s medical bills, is there any challenge that can be raised when a plaintiff in a non-bankruptcy matter has filed a Chapter 13 bankruptcy case? The answer is, yes. Judicial estoppel is a legal defense used for early dismissal of cases brought by bankrupt plaintiffs. In a bankruptcy, judicial estoppel applies if a debtor-plaintiff omits any claim that the plaintiff knew of at the time of filing for bankruptcy or learned of while the bankruptcy case was pending. If a defendant succeeds in establishing judicial estoppel, the plaintiff is barred from pursuing a case regardless of the claim’s merits. The Fourth Circuit has held that judicial estoppel applies when: (1) the party to be estopped is advancing an assertion that is inconsistent with a position taken during previous litigation, (2) the position is one of fact instead of law; (3) the prior position was accepted by the court in the first proceeding; and (4) the party to be estopped has acted intentionally and not inadvertently. Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th...
Written by Gary Reinhardt, Esq. As we enter the “endemic” phase of COVID-19, many things changed in our society. For instance, after a couple of years of being isolated, it seems people want to gather more. Further, with the multi-year moratorium on indoor weddings caused by the pandemic, the rush to book those venues created a logjam for the foreseeable future, pushing back planned matrimonial bliss. These situations result in even more living together arrangements. As for insurance, how does this situation impact who qualifies as an “insured” in a homeowners’ or tenant policy and along with that, who has coverage? For example, consider an insured with a live-in girlfriend. Suppose she is not on a lease or deed (and moved in after application, to avoid the easy argument of rate evasion). An insured may attempt coverage for his girlfriend in two aspects, either by claiming she is “family” or a “family member” or invoking the “personal property of others” clause. Initially, the typical policy requires for coverage that “The personal property must be owned or used by you, or your family members who reside with you . . .” What happens when a person, not the named insured (“you”), suffers a loss of his/her exclusive property like clothes or some sort of family heirloom? Many property insurance policies do not define “family member.” However, auto policies, like the standard specimen policy posted to its website by the Virginia Bureau of Insurance, does: “Family member” means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child. Likewise,...
Written by Daniel Royce, Esq. Edited y Bill Pfund, Esq. While much time, attention, and focus in public risk management is rightfully attuned to issues involving law enforcement and emergency personnel, equal attention need be paid to the opposite end of the spectrum, and the myriad issues involving incarcerated persons. A novel issue recently arose in a case involving a contract between the Culpeper County Sheriff (“Sheriff Jenkins”) and the Piedmont Regional Jail Authority (“PRJA”), and whether an inmate was an intended third-party beneficiary of said housing and medical care contract. The case of Hubbard v. Jenkins was recently heard in the Court of Appeals of Virginia and decided on February 7, 2023. 2023 Va. App. LEXIS 73 *; 76 Va. App. 533; 833 S.E.2d 1. Facts and Background In July 2016, Sheriff Jenkins and the PRJA entered a contract which provided for housing the inmates in Sheriff Jenkins’ custody at the Piedmont Regional Jail. Paragraph Four of the contract outlined financial responsibility for medical services rendered to Culpeper inmates. Specifically, the contract specified PRJA’s financial responsibility for routine medical treatment of the inmates and delineated categories of medical care that would require pre-approval by the Sheriff. Emergency medical treatment was addressed separately in Paragraph Two (b) and Paragraph Five stated that the Sheriff “will pay to PRJ[A]…[m]edical costs pursuant to paragraph 4 above,” which lists these costs as “exceptions” that require “prior approval from the Sheriff.” Hubbard was an inmate at the Piedmont Regional Jail. In August 2018, he was assaulted by another inmate and sustained injuries. Hubbard filed a lawsuit in the Eastern District of Virginia against...
Written by Jessica, Gorman, Esq. Edited by Bob McAdam, Esq. Another opinion recently issued by the Full Commission serves as a reminder that every case is fact specific. In Agyemang v. The Gardens at Warkwick Forest, JCN VA00001874767 (January 10, 2023) the Full Commission reversed and vacated an award issued by the Deputy Commissioner. In doing so, the Commission interpreted the “actual risk test.” The Claimant, a food attendant, alleged that she sustained an injury by accident to her left hand on May 1, 2021. She sought medical benefits and periods of indemnity benefits. The Employer raised numerous defenses against the claim, including that the Claimant did not suffer a compensable injury by accident arising out of and in the course of her employment. The Deputy Commissioner concluded that the Claimant proved that her injury arose out of her employment. The Deputy Commissioner summarized the evidence as follows: The Claimant testified that as she was placing several small, light plastic coffee mugs atop a refrigerator in a kitchen in the course of her work as a food attendant, she jammed her left hand on the refrigerator. The histories contained in the available medical records as well as her report of injury to the employer track the Claimant’s credible testimony regarding this incident. Although the Claimant’s injury may have occurred as a result of her own inadvertence, a Claimant’s negligence does not bar an award of compensation and it is found that her injury occurred as a result of an accident as defined under the Act. This incident is an “identifiable incident or sudden precipitating event,” that occurred as a...
Written by Stephanie G. Cook, Esq. Edited by Bill Pfund, Esq. Between March 16, 2020 and July 8, 2020, the Supreme Court issued several “emergency orders” in response to the COVID-19 pandemic, which tolled all statute of limitations. Since then, there has been considerable debate as to when the tolling period created by these emergency orders runs. In fact, the courts in Virginia have essentially been split on the issue. See Tinsley v. Clarke, 2022 U.S. Dist. Lexis 56625 (W.D. Va. March 28, 2022) and Proctor v. AECOM, Inc., 2021 U.S. Dist. Lexis 162142 (E.D. Va. August 26, 2021); see also English v. Quinn, 2022 Va. Cir. Lexis 7 (Roanoke City Cir. Court Feb. 7, 2022); but then see Ceriani v. Dionsysus, Inc., 2022 U.S. Dist. Lexis 73499 (E.D. Va. April 20, 2022); Heck v. Guion, 108 Va. Cir. 179 (City of Chesapeake Cir. Court June 4, 2021) and Brown v. State Farm, 107 Va. Cir. 343 (Culpeper County Cir. Court March 11, 2021). In general, plaintiffs have taken the position that the emergency orders tolled and extended all statutes of limitations. Thus, plaintiffs argued they had an additional 126 days (the time between March 16, 2020 and July 8, 2020) to file their Complaint in a personal injury action. For example, in Virginia, the statute of limitations for a personal injury suit is 2 years. Assume the date of an automobile accident was November 19, 2019. Generally, the time for plaintiff to file his or her suit in such a case would have run by November 19, 2021. However, due to these emergency orders, a plaintiff would likely...
