Technology allows people access to information and each other like never before. As technology improves, the ability to share information becomes easier. Unfortunately, our children are ahead of us in how to use this technology. Sexting, the dissemination of inappropriate material or images via text message or other technology, is a growing issue. Almost one-fifth of the teenage population admits to this practice. Serious consequences arise from this, particularly if the sharing goes further than what was intended. While there are few reported civil cases regarding “sexting,” the harm caused will certainly result in insurance claims and lawsuits. Several policy provisions need examined in order to determine coverage. First, is “sexting” an “occurrence?” Next, has the claimant suffered “bodily injury?” Is the “personal injury” coverage triggered as an invasion of privacy or some sort of injury to reputation or character? Finally, does the intentional act exclusion bar coverage to the person sharing the information or image? The homeowners claim will require extensive investigation, including interviews with upset parents and children. Law enforcement and school officials may also be involved. Possession of the inappropriate content, even as part of a claims investigation, may create complications for the claims professional, too. Be sure to get the advice of counsel on all the potential pitfalls surrounding your investigation to protect you, your insured and any of your insured’s family as the situation...
Can you imagine swimming 2.4 miles in open water, cycling 112 miles, then running a marathon race over 26.2 miles AND trying to do it all in under 10 hours? Since 2007, Danny Royce has completed seven (7) full Ironman competitions on the way to his ultimate goal of qualifying for the Ironman World Championships in Kona, Hawaii. Widely considered one of the most difficult one-day sporting events in the world, Danny has come extremely close to qualifying in several of his recent finishes. There is no doubt that he will soon meet that challenge; He has already qualified for the 70.3 (a half Ironman) World Championship to be held in Australia in September 2016. Not only are we amazed at Danny’s extreme dedication and hard work towards his personal goals, we are proud that he practices law with the same energy. Before completing law school and joining KPMLAW, Danny attended Cornell University where he earned a B.S. in Applied Economics and Management magna cum laude. During that time he was a two-year captain of the varsity men’s swim team and a three time MVP. “Nobody is going to outsmart him, and I’m damn confident nobody will out work him!” says firm president Chip Kalbaugh. “This young man is impressive in every aspect of his life. I’m thankful every day that Danny is a part of our team, because I’d sure hate to be up against him. He’s a standout. ” To learn about Danny Royce on a professional basis please visit his profile. To learn more about his extreme racing and his training regimen visit his blog. ...
Editor: Janeen Koch, Esquire Author: J.H. Revere, Esquire Those of us at Kalbaugh, Pfund and Messersmith practice every day in the various Courts of this Commonwealth of Virginia, but many of the people we work with do not have the luxury of focusing on a single jurisdiction. The following outline is a very general and simple outline of Virginia’s Court System, that will hopefully help anyone understand where a particular case sits within Virginia’s Court framework. If you have any more detailed questions please do not hesitate to contact any one of KPM’s civil litigation attorneys. We have attorneys admitted to practice in all of these Courts as well as Courts in North Carolina, West Virginia, Maryland and the District of Columbia. As a preliminary matter, Virginia has thirty-one (31) judicial districts comprised of ninety-five (95) counties and thirty-eight (38) independent cities, each with their own court system. For purposes of brevity we will not address Magistrates (who handle only criminal issues), Juvenile and Domestic Relations Courts (divorce, child custody, juvenile crime), or the Virginia Workers Compensation Commission (administrative courts). GENERAL DISTRICT COURT The General District Court is the lowest level civil Court in Virginia. They are considered a Court not “of record”. Virginia’s General District Courts have exclusive jurisdiction over matters of less than $4500.00 and concurrent or joint jurisdiction with the Circuit Courts for matters up to $25,000.00 (exclusive of interest). The General District Court has no jurisdiction over matters worth more than $25,000.00 and these matters must be filed in another Court (e.g. Circuit Court). Suits may be filed as a Complaint like in Circuit Court...
Author: Brian Cafritz, Esquire It is all too common that a customer or piece of equipment spills or drips liquid on the floor. The business learns of the problem and places a cone on the floor either prior to cleaning or after cleaning. Despite the warning cone, a guest falls and sues the business for negligence. Because Virginia applies a contributory negligence standard (1% negligence by plaintiff is a total bar to recovery), the defendant almost always has a decent liability argument to take to the jury. However, the real goal is to have the case dismissed on summary judgment and avoid the uncertainty of a jury altogether. Over the last 12 months, several new opinions in Virginia Federal Courts have provided valuable guidance on how to assess the potential liability of these claims, and they specifically point to critical facts to determine whether summary judgment is appropriate or not. In each of the cases, the court focused on fact issues, such as “How close was the cone to the fall?” and “Was the condition that caused the fall the same condition the cone was warning against? Like most states, the general law of premises liability in Virginia is that a business owes a duty to exercise reasonable care to make the particular area reasonably safe for plaintiff’s use, or to give adequate warning of any hidden or concealed danger that it knows or should know about. However, behind that basic tenet of the law, there are a seemingly infinite number of variations in fact patterns that make the simplest concept problematic. Over the years, the Virginia Supreme Court...
Editor: Rachel Riordan, Esquire Author: Robert McAdam, Esquire The “Willful Misconduct Defense” has recently been given a boost by the Court of Appeals in Layne v Crist Elect. Contr., Inc. 64 Va. App. 342, 768 S.E.2d 261 (2015). Under familiar statutory law (Virginia Code §65.2-306(A)(5)) workers’ compensation benefits will be denied to a claimant when the claimant commits a willful breach of a workplace safety rule brought to his attention prior to the accident; even though the underlying event would otherwise be compensable. This statute was recently reinvigorated by Layne. In Layne, the claimant was an employee of an electrical contractor and a subcontractor performing electrical work in a warehouse owned by Delta Star. The claimant was installing electrical conduit from a scissor lift high up in Delta Star’s core cutting room and had almost completed installing the conduit. Delta Star’s bridge crane, which was operational at the time, hit claimant’s scissor lift, causing both the scissor lift and claimant to fall far to the floor. The claimant sustained catastrophic injuries. The Claimant’s accident arose out of and occurred in the course of the employment. However, the Employer raised a willful misconduct defense, asserting the bridge crane would not have hit the scissor lift, and the injuries would not have occurred, if the claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. This procedure ensured that the electrified rails which allowed the bridge crane to move were inoperable, ensuring that the crane could not move. At hearing, the evidence showed the claimant was never given any written materials addressing the “lockout-tagout” procedure and did not...
Gary Reinhardt, Managing Partner in KPM’s Coverage & Fraud Department, answers questions related to recent changes to the Underinsured Motorist Law. ...
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...
Editor – Janeen B. Koch, Esquire Author – Randall C. Lenhart, Jr., Esquire The Supreme Court of Virginia recently addressed the issue of when to exclude evidence when the prejudicial effect substantially exceeds its probative value in Julia Cain, et al. v. Joe Lee, 2015 Va. LEXIS 77 (June 4, 2015) as it relates to post-accident conduct by the defendant in determining punitive damages. In Cain, Julia Cain was driving with her daughters in their vehicle when she began to slow her vehicle due to traffic in front of her. As she slowed down, a vehicle being driven by the defendant rear-ended the Cains’ vehicle which caused the Cains’ vehicle to collide with the car in front of it. After the accident, the state trooper who responded to the scene determined that the defendant was possibly intoxicated due to his appearance and the presence of a strong odor of alcohol. The defendant failed a field sobriety test and then consented to a preliminary breath test which registered a blood alcohol content of .25 (over three times the legal limit of .08). After being arrested and brought before the magistrate, the defendant refused to submit to a breath test which resulted in him being charged with unreasonably refusing to submit to a breath test in violation of Virginia Code § 18.2-268.3 and driving under the influence (“DUI”) in violation of Virginia Code § 18.2-266. At the traffic hearing, the defendant pled guilty to DUI and the Commonwealth agreed to nolle prosequi the charge for the unreasonable refusal charge pursuant to a plea bargain. Julia Cain and her two daughters...
Editor – Janeen B. Koch, Esquire Author – Danny Royce, Esquire The Virginia General Assembly has recently enacted several significant changes to two statutes pertaining to settlement of underinsured motorist claims and subrogation rights of underinsured motorist carriers. The revisions specifically impact Virginia Code Section 38.2-2206 and add a new statute at 8.01-66.1:1. According to the State Corporation Commission, the stated purpose of these changes is to expedite uninsured and underinsured motorist payments. These changes will go into effect for policies issued or renewed on or after January 1, 2016. In short, these changes impact both liability and underinsured motorist carriers in claims involving UIM coverage: The liability carrier can tender policy limits in exchange for a complete settlement and release of the defendant/tortfeasor and the liability carrier. Acceptance of the liability carrier’s limits by the injured party extinguishes the primary liability carrier’s duty to defend. This duty is extinguished upon payment of the liability limits (not merely acceptance of the offer). A settlement under these revisions extinguishes the UIM carrier’s right of subrogation against the underinsured defendant. Upon being released, the defendant/tortfeasor now has statutory duties to reasonably cooperate with the UIM carrier in its defense of the case. Changes to Virginia Code 38.2-2206 The statute governing uninsured and underinsured motorist coverage is found in Virginia Code Section 38.2-2206. Prior to this revision, the liability carrier was permitted to tender its limits in cases where the injured person had UIM coverage. However, such tender did not secure the release of the liability carrier or its insured. Significantly, the liability carrier retained the duty to defend its insured and...
For a second year, KPM Law is helping feed hungry Virginians through its participation in The Legal Food Frenzy. Created in 2007 to address the growing number of Virginians who are considered “food insecure,” The Legal Food Frenzy, a partnership between The Office of the Attorney General, The Young Lawyers Division of The Virginia Bar Association, and the Federation of Virginia Food Banks, is a friendly competition among law firms, legal departments, law offices, law schools, and courts in Virginia to raise food and funds to feed the nearly 1.2 million Virginians – many of whom are children, seniors, and disabled adults – who can’t count on their next meal. Spearheaded at KPM offices by Richmond attorneys Matthew Daly and Jessica Relyea, the firm has collected more than a thousand pounds of food since its involvement in the initiative which takes place over a two-week giving period each year. KPM donations were distributed to food banks across the state thanks to participating KPM offices located throughout Virginia. Said firm president Chip Kalbaugh, “It’s great to see our attorneys and staff working as part of the greater legal community to address a very real need in our home state.” Since its inception, the Legal Food Frenzy, has raised the equivalent of over 11.4 million pounds of food, helping to address the increasing need throughout the state. Citing rates of unemployment and underemployment, the Federation of Virginia Food banks notes the number of Virginians struggling to make ends meet has been steadily on the rise. Over the last several years, Virginia food banks have faced a 50% increase in demand while...
