by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by Brian A. Cafritz, Esq. With the looming FDA deadline requiring restaurants to make nutritional data on food products available, restaurateurs wondering about its impact need only look to the recent headlines to see the latest trend in litigation. This month alone, Subway settled a class action lawsuit for selling “foot-long subs” that were only 11 inches. Peet’s Coffee has been sued for selling less coffee in cups that are charged as 12 and 32 oz. Indeed, restaurants are now learning what retailers and manufacturers of goods learned long ago…that the public can be very demanding and even more unforgiving. But what has spurred this attack on restaurants? The world is changing faster than most of us can keep up. Access to information instantly streams to the palm of our hand. Social media has connected millions to observations and experiences thousands of miles away. In addition, society has evolved to a point where large verdicts and class actions against corporate giants are not unthinkable outliers but are embedded in the culture of our society. To be certain, easy access to information has created a consumer base that demands immediate and accurate information, and has created an expectation that a selected product be served as promised without error. Whether it is intended or not, the language used in a restaurant’s description of a product can create an express warranty to the consumer. Typically quantifiable, provable, or measurable descriptions in a product’s ingredients, (Organic, Vegan, or Gluten Free), or in the product’s size (Quarter Pounder, Foot Long, or 32 oz.) create consumer expectations that may be misleading if the product...
by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by Christopher R. Wilson, Esq. Edited by Rachel A. Riordan, Esq. Consider this scenario: while at work a man slips and falls on a wet floor, breaking his arm. In the process, he also chips his dentures, breaks his eyeglasses, and damages a spinal cord stimulator used to treat pre-existing back pain. Which of these injuries or damages is compensable under the Virginia Worker’s Compensation Act? You’re probably very familiar with Virginia’s rules on the compensability of physical injuries, but what about other items damaged in a compensable accident—how do you determine which items the employer has to pay for? The Virginia Worker’s Compensation Commission recently addressed this issue in a case called Quiroz v. Prince William County Schools, JCN VA 00000647619 (Oct. 27, 2014). In Quiroz, just like in the example above, the claimant slipped and fell at work, suffering several compensable injuries. Also damaged in the fall, however, was the claimant’s spinal cord stimulator, which doctors had surgically implanted years earlier to treat failed back syndrome. At the evidentiary hearing, the claimant argued that the employer should be held responsible for repairing or replacing the spinal cord stimulator in addition to the medical treatment for the physical injuries. Virginia Code §65.2-603(A)(2) provides that employers: shall repair, if repairable, or replace dentures, artificial limbs, or other prosthetic or orthotic devices damaged in an accident otherwise compensable under worker’s compensation . . . . The claimant relied on this section to argue that a spinal cord stimulator qualified as a “prosthetic or orthotic device” because it “reduce[d] pain in order to improve the functionality of the spine.” Both...
by KPMLAW | Nov 16, 2015 | KPMBlog, News, Uncategorized
Written by John K. Messersmith, Esq. & Sarah Kathryn Atkinson, Esq. Edited by Janeen Koch, Esq. How often have you had a claim where the facts suggested your insured had no liability but years after the accident, the claim re-emerges on your desk as a lawsuit with your insured as a defendant? As a claims professional, a huge concern in any case involving multiple entities and parties is keeping your coverage from being exposed. Transportation cases are particularly problematic as the industry is known for its complicated relationships associated with owner/operators, leased tractors, leased trailers and other contractual arrangements. Plaintiffs’ attorneys mine those relationships for ways to include new parties and importantly, to find additional layers of coverage. One such tactic that seems to be gaining favor with plaintiff attorneys is to allege a “joint venture” between a tractor or trailer owner and the operator. Traditionally, plaintiffs simply alleged an employer-employee relationship and therefore, the employee’s negligence was vicariously imposed on the employer. Obviously, the existence of such a relationship in the trucking industry can be complicated and requires a fact-based determination of a number of factors, the most important of which is the right to control. Coker v. Gunter, 191 Va. 747 (1951). Today, however, most motor carriers and operators are engaged in a contractual relationship represented by a contract, lease or purchase agreement. This complex and often tangled set of relationships has given rise to some attorneys arguing that this type of relationship constitutes a joint venture. They simply allege that the owner and the operator engaged in a joint venture to transport product for a...
by KPMLAW | Nov 4, 2015 | Events, KPMBlog, News, Uncategorized
KPM LAW’s Gary Reinhardt, Managing Partner of KPM’s Coverage & Fraud Department, will present at The Property & Liability Resource Bureau’s Eastern Regional Adjusters Conference in Atlanta, Georgia, on November 10-11, 2015. An AV-rated attorney who serves as General Counsel to the International Association of Special Investigation Units, Gary is speaking on the latest trends and strategies in property fraud claims. Gary and the team at KPM LAW hope to see you at this valuable two-day conference. More information can be found at http://www.plrbregionalconferences.org/. ...
by KPMLAW | Oct 29, 2015 | KPMBlog, News, Uncategorized, Updates
Last month, KPM’s Brian Cafritz reported about a string of recent rulings on slip and fall cases and the impact that placing a warning cone has on a company’s liability. Our report was quite prophetic, as it preceded yet another ruling that reinforced our analysis. UPDATE By Brian Cafritz, Esq. On October 8, 2015, Judge Moon of the USDC, Western District of Virginia, published his opinion in Robinson v. Kroger Co., Case No 6:14-cv-00046. In Robinson, plaintiff slipped and fell on liquid at a Kroger store when no cones or signs were displayed to warn of danger. Store video showed that the spill in question was created only 65 seconds before Robinson fell, and 37 seconds from when Kroger was notified of the spill. Facts revealed that Robinson entered the area of the spill and turned her cart to walk towards a self-checkout stand. In doing so, she pushed her cart directly through the spill, and once her feet hit the area, they slipped from under her. In depositions, Robinson stated that the puddle sized spill was beige, which was the same color of the floor. Ms. Robinson also acknowledged that nothing was hiding the liquid substance from her view, and that she was able to see it without difficulty when she stood directly above the spill. When asked whether, “if [she] had been looking at the floor looking for this liquid, would [she] have been able to see it,” Ms. Robinson responded, “I guess.” Based on this testimony, Kroger moved for Summary Judgment, arguing that because Robinson could clearly see the spill after the fall, and because she...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Barry Montgomery, Esq. Edited by Janeen Koch, Esq. The Virginia Supreme Court recently shot down two common arguments used by the plaintiff’s bar in first party insurance litigation. As discussed below, insurers in Virginia should keep both of these cases in mind when handling first party claims and litigation. I. Policy Condition Limiting Time In Which The Insured Can Sue In Homeowners’/Fire Policies Is Not subject To Tolling On September 17, 2015, the Virginia Supreme Court dispelled a common argument that the insurance policy condition requiring that a lawsuit be filed within 2 years of the date of loss is subject to a statutory “tolling” provision when a lawsuit is non-suited. In Allstate v. Ploutis, (Record No. 141536), Ploutis sued Allstate for breach of contract under a homeowners’ policy arising out of water damage to her house. Ploutis and Allstate could not agree on the costs of repairs and Ploutis sued for breach of contract. The policy contained a common condition that any lawsuit against the insurer must be filed within 2 years of the date of loss. Ploutis timely filed her lawsuit 1 year and 11 months after the date of loss. However, she later “nonsuited” the lawsuit and then re-filed within 6 months of the non-suit but more than two years after the date of loss–in violation of the 2 year limitation period found in the policy.[i] Allstate filed a demurrer asking the court to dismiss the complaint. Plaintiff argued that the statutory “tolling” provision found in Virginia Code 8.01-229(E)(3) should apply to allow her 6 months to re-file the lawsuit in spite of...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Rachel Stewart Edited by Brian Cafritz When dealing with a restaurant or retailer’s obligations to protect invitees from fights or other violent acts, the phrase “danger zone” is more than a catchy phrase from the “Top Gun” soundtrack. New rulings have broadened the “danger zone” or “zone of imminent harm” that a business must recognize to avoid potential liability from criminal conduct. Under Maryland law, restaurants and retailers may be liable for a patron’s personal injuries caused by the criminal acts of a third party when the business is deemed to possess certain knowledge and a presumed ability to foresee the harm to their patrons. There are three recognized theories of negligence in which the courts will impose a duty on restaurants and retailers to protect customers from criminal activities: When the property owner has knowledge of prior similar incidents and has failed to eliminate conditions that contributed to the criminal activity, such as providing security personnel, lighting, locks and similar instrumentalities; When the property owner has knowledge of prior conduct of the criminal actor thereby making the criminal activity foreseeable; or When property owner has knowledge of events occurring on the premises prior to and leading up to the criminal action, which make imminent harm foreseeable. Recent rulings have looked at the third theory – whether or not imminent harm is foreseeable. The majority of Maryland’s case law dealing with the foreseeability of imminent harm test focuses on the property owner’s knowledge of events then occurring on their premises. The takeaway from these cases is that if a restaurant or retailer has reason to foresee imminent...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Andrew Willis, Esq. Edited by Rachel Riordan, Esq. Whether a claimant suffered an “injury by accident” that arises out of and occurs in the course of employment usually takes an undue amount of time during a recorded statement. The factual variations are endless and the black letter law is often blurred, making it hard to know where to focus your questioning. Luckily, lack of timely notice is relatively straightforward and this defense is often neglected during recorded statements. In general, an injured worker needs to notify a supervisor of a work accident within 30 days. If an injured worker fails to give legally sufficient notice, that worker’s claim can be completely barred – even if they sustained a compensable “injury by accident.” In other words, lack of timely is a very powerful defense. It can give you a clear, reliable reason to deny an otherwise compensable claim. What follows are crucial questions to ask about notice during a recorded statement, along with a brief explanation of the law on notice. 1. Who Did You Tell? The Workers’ Compensation Act requires notice to the “employer” pursuant to §65.2-600. Of course, this means some specific person. The cases discuss the need to tell a “foreman,” “superior officer,” or “supervisor.” In other words, telling a co-worker isn’t enough. Get the claimant to identify who the claimant considered to be the “boss” and find out whether the claimant told that person. Also, because there may be more than one supervisor, have the claimant list all supervisors, any other people the claimant believed should be informed of work accidents, as well as...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
Written by Gary Reinhardt, Esq. With significant statutory changes looming, the Virginia Supreme Court expanded the reach of Underinsured Motorist coverage in the case of Bratton v. Selective Insurance, decided on September 17, 2015. In Bratton, the plaintiff’s decedent, a dump truck driver, was an employee of a paving subcontractor working on a highway asphalt project. The plaintiff’s decedent hauled hot asphalt to the job site and dumped the asphalt into the bucket of a front end loader. The dump truck driver’s job required him to periodically exit his dump truck to check for spillage of the asphalt. Given that the job was being done at night, as an additional safety measure, the superintendent for the paving subcontractor parked his pick-up truck with flashing lights and headlights illuminated at the start of the work zone. The pick-up truck was parked approximately 200 feet from where the dump truck stopped to unload asphalt. At the time of the accident, the decedent had exited the cab of his dump truck and was standing near the truck. He had been out of the truck for less than 30 seconds when two drunk drivers barreled past the superintendent’s pick-up truck and struck the front end loader. The decedent was found pinned between one of the drunk driver’s vehicles, the front end loader and the rear of the dump truck. He died as a result of his injuries. The plaintiff claimed that both the UIM policy of the dump truck and the UIM policy of the pick-up were available to the dump truck driver’s estate; the dump truck’s policy under the theory that the...
by KPMLAW | Oct 17, 2015 | KPMBlog, News, Uncategorized
KPM LAW is proud to announce the addition of several new attorneys to the Fairfax and Roanoke offices. Please join us in welcoming Lauren, Lindsey and Ryan to our practice. “Our legal talent is the strongest it has been in the 25 year history of the firm and it keeps getting stronger with each new hire,” remarked firm President Chip Kalbaugh. “The level of intellectual capital within our firm blows my mind. The addition of Lauren Gibbons, Ryan Walsh, and Lindsey Hunt brings geographical diversity, with an international flair. Our goal is to assemble talented lawyers who can see and feel cases from all possible angles. The law is the law, but individuals’ experiences help shape our unique approach to case strategy and resolution. When we say ‘One Firm. Your Firm’ we mean it. You get all of us.” Please visit our associates bio page by clicking on the photos above to learn more about each of...
