by KPMLAW | May 19, 2020 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Matthew Liller, Esq. Edited by Bill Pfund, Esq. The Supreme Court of Virginia recently clarified that a plaintiff who reaches a pretrial settlement with their underinsured motorist (“UIM”) carrier is still entitled to receive the full amount of a subsequent jury verdict from the defendant. Llewellyn v. White, 297 Va. 588 (2019). In Llewellyn, the plaintiff was seriously injured in an automobile accident. The plaintiff had $1 million in UIM coverage, while the defendant had $250,000 in liability coverage. Prior to trial, the plaintiff settled her potential claims against her UIM carrier for $750,000. A release of all claims was given to the UIM carrier only, and the UIM carrier agreed to waive subrogation. The then went to trial and the jury awarded plaintiff $1.5 million in damages against the defendant. The defendant moved to reduce the verdict and apply Virginia’s statutory offset from the plaintiff’s $750,000 settlement with the UIM carrier, meaning she would only be responsible for the $750,000 difference. Va. Code § 8.01-35.1 provides, in pertinent part, that when a release is given to one of two or more persons liable for the same injury, any amount recovered against the other person(s) shall be reduced by the amount stipulated by the release. The trial court declined to reduce the verdict. The Supreme Court of Virginia first determined that a UIM carrier is not a “person liable for the same injury,” as its obligation to pay arises only from contract, not from tort. The jury found that the defendant failed to exercise ordinary care, and that failure caused the plaintiff to suffer personal injuries. Because...
by KPMLAW | May 18, 2020 | Court, KPMBlog, News, Updates
The Virginia court’s COVID-19 responses and related information can be found here. As information is quickly evolving, all parties are advised to consult the Virginia court’s website at vacourts.gov for the most up to date...
by KPMLAW | May 11, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Janeen Koch, Esq. & Gary Reinhardt, Esq. As the country reels from the devastating impacts caused by COVID-19, commercial property insurance carriers are being inundated with claims – primarily those for business interruption losses. These claims are, for the most part, being denied. Many commercial insurance policies, including those that include business interruption coverage, do not include coverage for viruses such as COVID-19. After the SARS outbreak in 2003, Mandarin Oriental International Ltd. received $16 million from a settlement with its insurers to pay for business interruption losses due to the outbreak. Insurance carriers responded by adding endorsements to their policies excluding coverage for “loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.” Based upon this exclusionary language, business interruption losses due to COVID-19 would almost certainly be excluded under the clear and unambiguous language of the policy. However, for those policies that do not contain such an exclusion, it is less clear whether business interruption claims would be excluded from coverage. To obtain coverage under a commercial property policy, the insured must demonstrate “direct physical damage” to the property caused by a covered loss. Typically, such losses covered under these policies include damage caused by fire or natural disasters such as earthquakes or hurricanes. In some instances, coverage may be afforded when the property is not accessible or habitable due to damage to properties in the surrounding area. For example, coverage has been provided for businesses that must close due to a chemical spill at a neighboring property. Although...
by KPMLAW | May 9, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written by Claire Carr, Esq. Edited by Rachel Riordan, Esq. Workers compensation’ claims based on COVID-19 are on the rise. Adjusters and employers are starting to receive questions about these clams and the circumstances under which they may be compensable. This article examines COVID-19 claims as an occupational disease under the Virginia Workers’ Compensation Act and how we anticipate these claims being handled by the Virginia Workers’ Compensation Commission. When dealing with diseases, the Virginia Workers’ Compensation Act differentiates between an “Occupational Disease” and an “ordinary disease of life.” Virginia’s Occupational Disease statute, Va. Code §65.2-400(A), defines an occupational disease as “a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment” (emphasis added). Under Va. Code § 65.2-400(B), to meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the disease was proximately caused by the employment; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/ employer relationship; and (6) the disease originated in a risk of employment and flowed as a direct consequence of it. The elements above are typically proven with competent medical evidence. The most obvious types of occupational disease...
by KPMLAW | May 8, 2020 | Covid, KPMBlog, News, Profiles, Uncategorized, Updates
Written & Edited by Janeen Koch, Esq., Kevin Kennedy, Esq. & Matt Daly, Esq. As businesses around the world suffer dramatic declines in revenue due to the pandemic, they are turning to their insurance carriers seeking coverage for business interruption losses. However, many of these claims are being denied based upon the fact that they are either not covered or specifically excluded under the terms of the insurance policy. The requirement that insureds demonstrate “direct physical damage,” coupled with the fact that many policies include a virus and bacteria exclusion, will make it difficult for business owners to obtain coverage for these losses. Consequently, legislators in many states are proposing laws to require insurance companies to retroactively provide coverage for business interruption claims even when the policies specifically exclude such coverage. New Jersey became the first state to initiate the trend of looking to rewrite business interruption coverage for COVID-19 into these policies with proposed bill A-3844. That bill would require business interruption claims to be honored by insurance carriers for any business with fewer than 100 full-time employees that had a business interruption policy as of March 9, 2020. It appears that New Jersey’s bill has stalled for now, but other states have brought forward similar proposals, including New York, Massachusetts, Pennsylvania, Michigan, and South Carolina, as well as the District of Columbia. The Federal government has also drafted legislation aimed at protecting small businesses from losses sustained as a result of virus-related closures. H.R. 6494 – Business Interruption Insurance Coverage Act of 2020 – was introduced on April 14, 2020. The bill, which has bipartisan support, would...
by KPMLAW | Apr 28, 2020 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Kate Adams, Esq. Edited by Bill Pfund, Esq. With the ever changing world we live in testimony in person is moving toward becoming a thing of the past for certain non-critical witnesses. A new rule that went into effect on March 15 addresses the need to embrace technology and its use in our civil trials. Virginia Supreme Court Rule 1:27 provides guidance to the court and litigants as to when and what witnesses should be permitted to testify through an audiovisual link as opposed to in person at trials and hearings. The discretion to allow testimony to be presented in this manner and what witnesses it applies to, as with most rules is left to the court’s discretion. However, the rule contains some strong language directing the court that certain non-critical lay witnesses should be permitted to testify by using a live audio visual link. The new rule states that the court “should” enter an order permitting live testimony by means of audiovisual technology in this following circumstances. Upon consent of all parties If the lay witnesses is more than 100 miles from the hearing location If the witnesses is a superintendent of a hospital for the insane more than 30 miles from the place of trial, If the witness is a physician, surgeon, dentist, chiropractor, registered nurse, physician’s assistant or nurse practitioner who, in the regular course of his or her profession, treated or examined any party to the proceeding, If the witness is in any public office or service the duties of which prevent his attending court Under this new rule parties and expert witnesses...
