Editor – Janeen B. Koch, Esquire
Author – Stephanie Gacek Cook, Esquire
Kalbaugh, Pfund & Messersmith, P.C. is pleased to offer its special Legislative post on our blog. This update contains summaries of bills of interest to our readers that were enacted by the General Assembly in its 2015 session and that took effect as of July 1, 2015. This information is taken from the Summary of the 2015 Session of the General Assembly published by the Division of Legislative Services. The abbreviations used are as follows: HB – House Bill; SB – Senate Bill. If you wish to read the entire text of a bill to see how it changed the previously existing law, you may visit the Virginia General Assembly Legislative Services website at http://virginiageneralassembly.gov.
UM/UIM. The most notable change in the insurance industry is to the UIM/UM laws, found in Va. Code Ann. 38.2-2206 and 8.01-66.1:1. Our newsletter of June 2015 provided a detailed overview of these changes, and you can visit our website at www.kpmlaw.com for more information. In short, these changes establish a procedure by which an injured person or personal representative may settle a claim with a liability insurer and its insured for the available limits of coverage without jeopardizing a claim for underinsured motorist benefits. Upon payment of the available limits, the liability insurer has no further duties to its insured and the underinsured motorist benefits insurer shall have no right of subrogation or claim against the underinsured motorist, unless the underinsured motorist unreasonably fails to cooperate with the underinsured motorist insurer in the defense of any lawsuit. It is important to note that the provisions of the bill apply only to policies issued or renewed on or after January 1, 2016. HB1819.
Nurse practitioners. Allows a nurse practitioner to testify as an expert witness in a court of law on certain matters within the scope of his/her activities and adds nurse practitioner to the definition of “health care provider” under the medical malpractice statutes. See Va. Code Ann. 8.01-401.2 and 8.01-581.1. It is worth noting that physician assistants were elevated to the same status last year. HB 1476.
Appointment of physician assistants and nurse practitioners as medical examiners. Adds licensed physician assistants and nurse practitioners to the list of individuals who may be appointed to serve as medical examiners. See Va. Code Ann. 32.1-282, 54.1-2952 and 54.1-2957. HB 1435.
Defamation; statute of limitations. Provides that if a publisher of a defamatory statement publishes anonymously or under a false identity on the Internet, an action may be filed and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered. See Va. Code Ann. 8.01-247.1. HB 1635.
Medical malpractice proceedings; health care providers; expert testimony. Provides that medical experts licensed in other states, but not in Virginia, are presumed to know the standard of care in Virginia, provided that they meet the educational and examination requirements for licensure in Virginia. The bill also extends this presumption to all health care providers who are licensed to practice in Virginia. See Va. Code Ann. 8.01-581.20. HB 1775.
Personal injury or wrongful death action; appointment of administrator. Imposes a minimum interval of 60 days between a person’s death and a circuit court clerk’s appointment of an administrator for prosecution of a personal injury or wrongful death action against or on behalf of the decedent, when an executor or administrator of the estate has not been appointed. See Va. Code Ann. 64.2-454. SB 762.
Personal injury and wrongful death actions; disclosure of address of insured person.
Requires an insurance company to disclose the address of an alleged tortfeasor upon request of an injured person, personal representative, or attorney in a cause of action for personal injury or wrongful death due to a motor vehicle accident, if such address has not previously been disclosed. The bill also provides that if the alleged tortfeasor has insurance coverage from a self-insured locality for a motor vehicle accident and the locality is authorized by the alleged tortfeasor to accept service of process, the locality may instead disclose the insured’s work address and the name and address of the person who shall accept service of process on behalf of the alleged tortfeasor. See Va. Code Ann. 8.01-417. SB 761.
Immunity for volunteer first responders en route to an emergency. Provides that no volunteer firefighter or volunteer emergency services personnel shall be liable for any injury to persons or property arising out of the operation of an emergency vehicle when such volunteer is responding to a fire or to render emergency care or assistance to any ill or injured person at the scene of an accident, fire, or life-threatening emergency and the emergency vehicle displays warning lights and sounds a siren, exhaust whistle, or air horn, unless such injury results from gross negligence or willful or wanton misconduct. Such immunity shall be in addition to, not in lieu of, any other applicable immunity provided by state or federal law. See Va. Code Ann. 8.01-225.3. SB 845.
Direct access to physical therapy. Provides that a physical therapist who has completed a doctor of physical therapy program approved by the Commission on Accreditation of Physical Therapy Education or who has obtained a certificate of authorization may evaluate and treat patients for up to 30 days after an initial evaluation without a referral if (i) the patient is not receiving care from a licensed health care provider at the time of his presentation to the physical therapist or (ii) the patient is receiving care from a licensed health care provider at the time of his presentation to the physical therapist and (a) the patient identifies a health care provider from whom he is currently receiving care, (b) the patient gives written consent for the physical therapist to release all personal health information and treatment records to the identified practitioner, and (c) the physical therapist notifies the identified practitioner no later than 14 days after treatment commences, provides the practitioner with a copy of the initial evaluation and provides a copy of the patient history obtained by the physical therapist. The bill allows a physical therapist, who has not completed a doctor of physical therapy program approved by the American Physical Therapy Association or received a certificate of authorization, to conduct a one-time evaluation of a patient who has not met the criteria for evaluation and treatment without a referral and direction, provided the physical therapist does not provide treatment. The bill also eliminates the requirement for continuing education for physical therapists who have received a certificate of authorization. See Va. Code Ann. 54.1-3482. SB 845.
Workers’ compensation; definition of employee; property owners’ associations. Amends the definition of employee within the Virginia Workers’ Compensation Act to exclude non-compensated employees, directors, and executive officers of any entity that constitutes a property owners’ association under the provisions of the Property Owners’ Association Act. See Va. Code Ann. 65.2-101. HB 1285.
Workers’ compensation; exclusivity of remedy. Provides that if the Workers’ Compensation Commission or a court on appeal from the Commission makes a finding in an un-appealed order based on an evidentiary hearing or a factual stipulation of the parties that the claim relating to an accident, injury, disease, or death did not arise out of or in the course of the employee’s employment, then that finding shall be res judicata between the parties and estop them from arguing before a court that the accident is barred by the exclusivity provisions of the Workers’ Compensation Act. See Va. Code Ann. 65.2-307. HB 1486.
Workers’ compensation; exclusion of certain truck owner-operators. Excludes any owner-operator of a motor vehicle that is leased with or to a common or contract carrier in the trucking industry from the definition of an employee for purposes of the Virginia Workers’ Compensation Act, if certain conditions establish that the owner-operator is an independent contractor. See Va. Code Ann. 65.2-101. HB 1806.
Following too closely. Includes bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds as motor vehicles and states that the driver of these vehicles shall not follow more closely than is reasonable. See Va. Stat. Ann. 46.2-816, 46.2-800. HB 1342.
Flashing lights on motor vehicles; “move over” law. Allows vehicles that assist with the management of roadside and traffic incidents or that perform traffic management services along public highways to be equipped with flashing, blinking, or alternating amber warning lights and states that Virginia’s “move over” law now applies to such vehicles. See Va. Stat. Ann. 46.2-1025. HB 1344.
Commercial motor carriers. Amends several motor carrier and commercial drivers’ licensing laws, bringing Virginia into compliance with Federal Motor Carrier Safety Regulations amendments regarding commercial motor vehicles and exemptions regarding certain farm vehicles and their drivers. The bill lowers the age of eligibility for an escort vehicle driver certification from 21 to 18 years. The bill also authorizes two additional circumstances in which law enforcement may remove for-hire license plates, where the carrier’s operating authority has expired and where the plates are being used on a leased vehicle. This bill amends Va. Stat. Ann. 46.2-324.1, 46.2-341.4, 46.2-341.7, 46.2-341.8, 46.2-341.9, 46.2-341.10, 46.2-341.12, 46.2-341.14, 46.2-341.14:1, 46.2-341.15, 46.2-341.16, 46.2-341.18:3, 46.2-341.20, 46.2-341.20:4, 46.2-348, 46.2-2011.29, 46.2-2139, 46.2-2900, 46.2-2906, 46.2-2907, and 52-8.4 and also adds in Article 3 of Chapter 6 of Title 46.2, sections 46.2-649.3 and 46.2-649.4. HB 2038.
Passing with a double yellow line. Allows drivers to cross double yellow lines or a solid yellow line immediately adjacent to a broken yellow line in order to pass a pedestrian or a device moved by human power, if such movement can be made safely. See Va. Code Ann. 46.2-804. SB 781.