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 Daniel Royce, Esq. On April 18, 2023, in the case of Best v. Farr, et al., 2023 Va.App. Lexis 245* (Court of Appeals of Virginia) addressing claims arising from an officer-involved shooting, the Court of Appeals ruled the trial court properly dismissed claims of gross negligence, willful, wanton, and reckless negligence, battery, and that the Arlington County Police Chief was grossly negligent in supervision of a police operation carried out by officers under his command. At issue were events arising from an Arlington County Police tactical unit stopping a vehicle for suspected criminal activity. Police efforts were resisted, which led to violence and injury to the appellants. Appellants filed nearly identical civil complaints alleging joint and several liability against defendants/appellees under multiple counts.[1] Defendants filed demurrers which were sustained without leave to amend. This appeal followed, and the Court reviewed the lower court rulings de novo.[2] Facts and Background On May 3, 2018, Appellants Best and Lary (“Appellants”) were occupants of a van being surveilled by police under authority of Police Chief Farr. Lary had an outstanding warrant for her arrest.[3] A team of Arlington Police officers observed a transaction between Best and a third party which appeared to involve illegal drugs. After the transaction, Best parked his vehicle on a public street near an intersection. The police surrounded Best’s vehicle with unmarked police vehicles. Four armed, plain clothes officers approached the van. On of the officer’s approached Best’s window. No badges were displayed, nor were the appellants told they were under arrest. The officer closest to the window told Best to show him his hands. In...
Written by Megan Wagner, Esq.Edited by Bob McAdam, Esq.It is important for Workers Compensation adjusters and attorneys to closely examine whether a Virginia claimant has suffered a “sudden mechanical or structural change in the body.” If not, the claim should be denied. However, this elementary defense is often overlooked. In Virginia many claims are defended on the basis that a claimant did not suffer an “injury by Accident” under the Act. Every claimant alleging an injury by accident is required to establish each of the following: (1) an identifiable incident; (2) that occurred at some reasonably definite time; (3) an obvious sudden mechanical or structural change in the body; and (4) a causal connection between the incident and the bodily change. Although each element of this four-part test must be shown, frequently the analysis of both claims adjusters and defense attorneys is focused on only the first two prongs of the test.Recent Commission Opinions show that disregarding the “mechanical change element” may result in accepting claims that are not compensable under the Act. The Commission’s split 2-1 decision in Davis v. Wal-Mart Associates, Inc., JCN VA02000037952 (Feb. 27, 2023) provides a helpful illustration of this legal issue. In Davis the Full Commission affirmed the finding of the Deputy Commissioner that claimant failed to establish a “sudden mechanical or structural change in the body.” The claimant in Davis reported a sharp pain in his back while kneeling to place a twelve-pack of ginger ale on a bottom shelf. Plain film x-rays taken at the hospital noted postoperative changes from a prior surgery but no acute fracture, dislocation or disease. A...
In May of 2023, the Supreme Court of Virginia ruled on a Freedom of Information Act (FOIA) case, and in so doing, established a bright line which will likely have a significant impact on public entities and “public meetings”. The matter of B. Alan Gloss, Et Al. v. Ann B. Wheeler, Et Al. (Record No. 210779) established a more expansive definition of what constitutes a public meeting of government officials.[1] Facts and Background The underlying facts revolve around an impromptu meeting of the Prince William Board of Supervisors in May 2020 in which members discussed local unrest in the wake of the George Floyd killing. Several residents of the County filed a “Petition for Mandamus and Injunction” in Prince William Circuit Court alleging that five members of the Board of Supervisors knowingly and willfully violated Virginia FOIA (VFOIA) by attending a meeting as defined by VFOIA without complying with statutory requirements of the act. On May 25, 2020, George Floyd was killed in police custody in Minneapolis, Minnesota. His death ignited nationwide protests including a protest in Prince William County on May 30, 2020. The protest began peacefully, but subsequently turned violent. An “unlawful assembly” was declared at approximately 8:00 p.m., but the group of protestors continued to grow in number. Events escalated and included acts of vandalism and violence. County officials began characterizing the events as “riots”. At approximately 10:00 p.m., police officials sent an email to members of the Board of Supervisors providing information about the unrest. Board members were advised that police were attempting to regain order, and portions of roads within the county remained closed. ...
Written by Lee Hoyle, Esq. Edited by Bill Pfund, Esq. Artificial intelligence has gone from the realm of science fiction to a consumer product with the release of ChatGPT and other large language models. Proponents of AI have touted their ability to revolutionize any number of industries, including the legal profession. These optimistic claims may overlook potential pitfalls in using the new technology professionally, particularly in legal realm. One lawyer found out the hard way that AI might not be what it seems at first blush. Before using AI in any professional capacity, an attorney must have a basic understanding how large language models work. AI typically refers to large language model programs. At the risk of oversimplification, these programs operate as highly refined predictive text generators. AI or large language model programs have gone from predicting the next word to predicting the correct response, even where the correct response is a sentence, a paragraph, or even pages of text. Critically, these programs have been trained to provide the correct response through processing and evaluating huge amounts of text. By training the programs on massive amounts of text, the programmers are able to teach the program to analyze questions from users and provide responses based on the training texts. This reliance on training texts presents a potential problem for lawyers and other professionals in the legal field who are required to keep certain information confidential. Obtaining a useful response from AI might require providing key details specific to a given case. Giving those details might allow the AI to provide a more helpful response, but it might also unintentionally...
Above is the bottom part of the Claim Form found on the Commission’s website. When this form is utilized by the claimant, at least 75% of the time the claimant will check all of the boxes (except for the “death benefits”) box. In a typical injury by accident case, the only real relief the claimant is seeking is temporary total disability benefits (in addition to medical benefits). However, since the PPD box is checked this issue must be dealt with by the deputy commissioner at the hearing. Typically, the deputy commissioner will ask the claimant how she wants to handle this claim. In many circumstances (especially if the claimant is represented) the PPD claim will be held in abeyance and not adjudicated at the hearing. After the hearing, an opinion is issued. In many cases you might pay TTD for a closed period. However, the PPD claim is still lying dormant, ready to reemerge later. You may have paid all the outstanding medical bills and the closed period of compensation. The claimant might no longer be treating. So, you forget about the claim. A year later, you receive a Notice of Hearing or a 30-Day Order pertaining to the PPD claim. You must reengage counsel, with all those attendant expenses. How could this be avoided? Our strategy is as follows: At the hearing, move to dismiss without prejudice the PPD claim, rather than hold it in abeyance. If the deputy commissioner does not grant this relief, we suggest the following. After receiving the opinion awarding a closed period of TTD benefits file a Rule 1.3 Motion to Dismiss...
Written by Daniel Royce, Esq. A critical component of educational infrastructure of public schools are the bus drivers tasked with transporting children safely to and from school each day. Despite their critical role, school boards are not immune from claims arising from their own drivers. In Cook v. Prince George County School Board, Civil Action No. 3:22-cv-129-HEH (Eastern District of Virginia), the Eastern District had the opportunity to re-visit and weigh in on discrimination and retaliation claims under Title VII when it granted Summary Judgment in favor of the Prince George School Board. Facts and Background Lillie M. Cook (“plaintiff”) was employed as a school bus driver for Prince George from 2013 until June of 2020. The school board elected not to renew her contract for the 2020/21 school year. Plaintiff, who is black, alleges that her contract was not renewed because of her race, and because she filed a report accusing the School Board of discrimination and workplace harassment. The Board asserted that plaintiff was neither subject to discrimination nor retaliation and simply not retained because she was not meeting the Board’s legitimate expectations. In December 2019, plaintiff was reprimanded for rushing a child to get on the bus. In Early January, a white bus driver reported that plaintiff and other drivers were talking negatively about the supervisor. Portions of this conversation were recorded on the bus recording system. As a result of this unprofessional conduct, the plaintiff was issued a letter of reprimand on January 10, 2020 On February 3, 2020, plaintiff filed a report of discrimination and harassment with the School Board. Plaintiff addressed the letter...
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...
Public Schools across the nation are entrusted with our children to educate, feed, nurture and provide the tools necessary for our next generation to lead fulfilling lives. As part of these responsibilities, schools must have robust precautions in place to ensure that students with allergies, and specifically food allergies, have policies and procedures in place to prevent incidents that could have dire consequences. Having a robust and specific Risk Management plan in place to prevent and deal with these situations is of the utmost importance. Facts and Background A Nebraska school district has agreed to pay $1 million to the family of a teen who died of anaphylaxis in May 2022. A 14-year-old student at Liberty Middle School in Papillion, Nebraska, was given a granola bar by his teacher. Unfortunately, the bar contained peanuts and the student had a peanut allergy. Tragically, the student later died in hospital following a severe allergic reaction. During its March meeting, the Papillion La Vista Community school board received notification of settlement with the student’s parents related to the wrongful death claim. The school board’s liability insurance carrier has agreed to pay a lump sum settlement the the family of the deceased student. In exchange for the settlement, the student’s parents have agreed to release the school district from liability in connection with the unfortunate incident. The settlement was reached through a Nebraska probate court process, not a civil lawsuit. As a result, we have relatively little information about the claims and defenses of the respective parties. What little information is known was obtained through social media postings of the family. According to...
You have just sent a claimant a check for $100,000 as consideration for a full and final settlement. The claimant then files a motion to vacate the settlement, but he has already cashed the check. What should you do? The Virginia Workers’ Compensation Commission is very liberal when it comes to backing out of settlements. Either side has up to thirty (30) days after the settlement has been approved by the Commission to back out without penalty. The most common reason an insurer might back out of a settlement is that it discovers fraud. For example, the insurer might find out that the claimant is working elsewhere and did not report that income. Or, surveillance might reveal that the claimant is not really injured. The most common reason why a claimant might back out of a settlement is that the claimant discovers that her injury is much worse than she thought, and she will need expensive surgery in the future, or that the recent surgery failed. In Radtz v. Crossroads Fuel Service Inc. (03/16/2023) the Full Commission addressed the issue of how to handle a matter when the settlement proceeds have been dispersed but the claimant wants to back out of the settlement. In Radtz, the parties settled the claim. The settlement was approved by the Commission on 01/24/2023. The claimant timely moved to vacate the settlement because he needed additional surgery. The Commission gave the claimant 60 days to remit the settlement proceeds to the insurer. If the proceeds were not returned, the settlement would not be vacated. Practice Pointers: If you settle a matter favorably, pay the...
