by KPMLAW | Nov 14, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Francie Belton Georges, Esq. In workers’ compensation cases, a file can remain open for years following an evidentiary hearing. In cases where the Commission enters an Award granting the employee wage-loss benefits for an indefinite period of time (referred to as an “open award”), the employee has the right to receive those wage-loss benefits for as long as the award remains outstanding or “open.” The employer and/or insurer bear the burden of filing an application with the Virginia Workers’ Compensation Commission to terminate the open award. So, how do you stop the bleeding? There are only two ways to terminate an open award: Termination by Agreement or Termination without Agreement. Termination by Agreement The easiest way to terminate the open award is by agreement. If you are lucky enough to have the employee agree that the open award should be concluded and if the employee is willing to sign a Termination of Wage Loss Award (“TWLA”), then the award can be terminated quickly and easily. Note, however, that a TWLA can be filed only when: (a) the employee has actually returned to work at a wage equal to or greater than the pre-injury average weekly wage, or (b) the employee was capable of returning to his pre-injury work (i.e., he was released to return to pre-injury work by the doctor. It does not matter if he actually does return to work. The release by the doctor is the key). In addition to the filing of the TWLA form, the employer/insurer will have to produce documentary proof of the employee’s release to return to pre-injury work. Without documentary...
by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Danny Royce, Esq. Edited by Janeen Koch, Esq. Virginia law allows for compensatory and punitive damages against drunk drivers in motor vehicle accident cases. In order to recover punitive damages, the conduct of the defendant must be willful and wanton. There are two types of punitive damages that can be awarded in these cases – statutory and common law. This article will focus on statutory punitives and a recent amendment to the Virginia Code allowing for evidence of defendant’s post-accident conduct in affixing the amount of punitive damages to be awarded. As a preliminary matter, Virginia Code Sec. 8.01-44.5 permits awards of punitive damages for persons injured by intoxicated drivers. The statute states in pertinent part, “[i]n any action for personal injury or death arising from the operation of a motor vehicle…the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” The statute goes on to set forth conditions, which proven at trial, are sufficient to constitute willful and wanton conduct. Pursuant to the statute, a defendant’s conduct “shall” be deemed “sufficiently willful or wanton as to show a conscious disregard for the rights of others” under the following circumstances: a) the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; b) at the time the defendant began drinking alcohol (or during the time...
by KPMLAW | Oct 17, 2016 | Events, KPMBlog, News, Profiles, Updates
A.M. Best recently compiled a panel of insurance risk experts and insurance attorneys including KPM’s Robert Worst, Managing Partner at KPM LAW’s Fairfax office. In this webinar, experts examine what’s at stake, how to protect against risk, and what new risks are emerging in this dynamic sector. View the...
by KPMLAW | Oct 17, 2016 | KPMBlog, News, Uncategorized, Updates
Written by Brian A. Cafritz, Esq. Earlier this month the Eastern District of Virginia released its opinion in Snider-Jefferson v. Amigo Mobility Int’l, Inc., 2016 U.S. Dist. LEXIS 109319, which reaffirmed that expert witnesses cannot simply opine on their own ideas about product safety, but must instead base their evaluations upon specific industry standards. In Snider-Jefferson, a plaintiff at a Virginia Wal-Mart store was injured by another customer who was riding a motorized cart, when a sharp metal edge on the cart’s platform struck the plaintiff’s ankle. The plaintiff filed suit against Wal-Mart and the cart manufacturer, alleging that the cart had been defectively designed. Specifically, plaintiff contended the cart platform needed a soft rubber edge or other protective guard to shield the cart from customers. In support of these theories, Plaintiff designated a mechanical engineer, Dr. Bawab, who inspected the cart and created a computer model of the accident. Dr. Bawab concluded that adding a rubber bumper to Wal-Mart’s carts would have been a simple and cost effective solution which would have greatly mitigated the risk of harm caused by Wal-Mart’s carts. Defendant moved to exclude Dr. Bawab and sought summary judgment. Judge Lawrence Leonard of the USDC EDVA (Norfolk Division) granted the motion and dismissed the case. The Court noted that, “[i]n his report, Dr. Bawab did not consider any industry or government standards when assessing the cart’s design . . . . Dr. Bawab failed to perform the recommended [Underwriters Laboratory (“UL”) standard] sharpness testing on the cart’s edge, and Dr. Bawab never indicated whether UL standards required a rubber bumper.” Id. at *13. In depositions,...
by KPMLAW | Sep 12, 2016 | Events, KPMBlog, News, Updates
Gary Reinhardt, General Counsel to the IASIU and state police “Red Flag” Instructor will be speaking at several upcoming events: September 12-15 “The Internet of Things” International Association of Special Investigation Units International Seminar, Las Vegas, NV. September 27-30 “Prosecutors, Law Enforcement & Special Investigation Units: Working Together to Fight Fraud” Red Flag Investigation and Prosecution of Insurance Fraud, Huddleston, VA, Smith Mountain Lake, Mariners Landing Resort & Conference Center. October 27 John Messersmith will collaborate with neuropsychologist Dr. Doug Gibson for a presentation on traumatic brain injury at the 7th annual Atlanta Trucking Conference. This year’s seminar is on “The Anatomy & Life of a Truck Accident Claim: Preparing for and Avoiding the...
by KPMLAW | Aug 15, 2016 | KPMBlog, News, Uncategorized, Updates
Author: Lee Hoyle Editor: Brian A. Cafritz In products liability cases, it seems that any entity that touches the product could have liability. Manufacturers, designers, installers, sellers, and repair companies all face exposure for defective products merely because of their relationships to the product. In such cases, defendants have long relied on the “empty chair” defense. The defense, which sounds more dramatic than it is, simply means that a defendant claims that someone else, someone not before the court, is responsible for the injuries. The defense survived a challenge before the Virginia Supreme Court, but the reasoning of the decision may complicate attempts to raise the defense in the future. In Dorman v. State Indus., ___ Va. ___, 2016 Va. LEXIS 77 (June 16, 2016), the plaintiffs were several people who suffered carbon monoxide poisoning from a gas fired hot water heater, which they claimed was the result of the design of the heater. The plaintiffs brought suit against several defendants, but only the manufacturer remained at trial. The theories at trial were negligence and breach of warranty. The manufacturer denied liability on the grounds that the heater was improperly installed and maintained, even though the installer and maintenance companies were not named in the case. At trial, the plaintiffs argued that the defendant could not argue the “empty chair” defense and point the finger at the installer or the maintenance company. They claimed that because Virginia follows Joint and Several Liability, any negligence of the manufacturer made it liable for the whole verdict. As a result, the negligence of another entity was not relevant unless such negligence constituted...
