by KPMLAW | Feb 2, 2021 | KPMBlog, News, Profiles, Uncategorized
Written by James T. Taylor, Esq. Edited by William J. Pfund, IV, Esq. It was every employer’s worse nightmare. On August 26th, 2015, at 6:46 a.m., Lester Flanagan, a disgruntled former employee of WDBJ, ambushed two of his former colleagues as they were conducting a live televised interview of Victoria Gardner at Bridgewater Plaza in Moneta, Virginia. He shot and killed both of his former colleagues before wounding Gardner, the interviewee. Gardner only survived by feigning death and remaining completely still. Two years prior, Flanagan was terminated from WDBJ following a history of verbal and physical abuse toward co-workers. During his termination meeting, Flanagan slammed his fist down on the table and warned, “I’m not leaving, you’re going to have to call the f***ing police…I’m going to make a stink and it’s going to be in the headlines.” Later as he was escorted from the building by police, he gave a small wooden cross to a news director and insinuated, “You’ll need this.” As a result of the shooting, Victoria Gardner filed a $6,000,000.00 lawsuit against WDBJ for negligently hiring and negligently retaining Lester Flanagan. Gardner’s lawsuit alleged that WDBJ failed to find troubling aspects of Flanagan’s background before hiring him, then waited too long to fire him the following year after he verbally abused and physically threatened co-workers. Plaintiff tried unsuccessfully to argue that a business proprietor-invitee relationship was established giving rise to a duty to Ms. Gardner. However, the case was dismissed in June 2020 on demurrer because Plaintiff failed to establish that a duty was owed to Ms. Gardner by WDBJ. While Virginia courts have generally...
by KPMLAW | Feb 2, 2021 | KPMBlog, News, Profiles
Written by James T. Taylor, Esq. Edited by William J. Pfund, IV, Esq. It was every employer’s worse nightmare. On August 26th, 2015, at 6:46 a.m., Lester Flanagan, a disgruntled former employee of WDBJ, ambushed two of his former colleagues as they were conducting a live televised interview of Victoria Gardner at Bridgewater Plaza in Moneta, Virginia. He shot and killed both of his former colleagues before wounding Gardner, the interviewee. Gardner only survived by feigning death and remaining completely still. Two years prior, Flanagan was terminated from WDBJ following a history of verbal and physical abuse toward co-workers. During his termination meeting, Flanagan slammed his fist down on the table and warned, “I’m not leaving, you’re going to have to call the f***ing police…I’m going to make a stink and it’s going to be in the headlines.” Later as he was escorted from the building by police, he gave a small wooden cross to a news director and insinuated, “You’ll need this.” As a result of the shooting, Victoria Gardner filed a $6,000,000.00 lawsuit against WDBJ for negligently hiring and negligently retaining Lester Flanagan. Gardner’s lawsuit alleged that WDBJ failed to find troubling aspects of Flanagan’s background before hiring him, then waited too long to fire him the following year after he verbally abused and physically threatened co-workers. Plaintiff tried unsuccessfully to argue that a business proprietor-invitee relationship was established giving rise to a duty to Ms. Gardner. However, the case was dismissed in June 2020 on demurrer because Plaintiff failed to establish that a duty was owed to Ms. Gardner by WDBJ. While Virginia courts have generally...
by KPMLAW | Jan 19, 2021 | KPMBlog, News, Profiles, Uncategorized, Updates
Written by Jessica Gorman, Esq. Edited by Rachel Riordan, Esq. The Workers’ Compensation Act provides compensation for permanent partial loss of use of certain body parts, including the loss of a leg. See Code § 65.2-503(B)(13). “[F]or the permanent partial loss or loss of use of a member, compensation may be proportionately awarded.” Code § 65.2-503(D). A numerical rating of the permanent partial loss of use of the injured body part is required so that benefits may be proportionally awarded according to the percentage loss and determined by the schedule in Code § 65.2-503(B).” See, Va. Nat. Gas, Inc. v. Tennessee, 50 Va. App. 270, 279 (2007) (quoting, Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652, 654(1994)). An injured worker bears the burden of proving the level of impairment from a work-related injury. Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677-78 (1991). “Where the issue concerns a permanent partial loss of use, the Commission must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence presented.” Id. at 677 (quoting, County of Spotsylvania v. Hart, 218 Va. 565, 568 (1977)). But what happens when an injured worker has a compensable injury which requires a surgical implantation of a prosthetic which later improves the injured workers’ function? Is the permanent loss of use determined PRIOR to any surgical correction OR after any such replacement, as the replacement is undertaken to provide the injured worker with more function? This question was recently answered by the Court of Appeals in Loudoun Cnty. v. Richardson, 70 Va. App. 169 (2019). In this case, the injured...
by KPM LAW | Sep 10, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Andrew Strobo Edited by Bill Pfund Negligence is deceivingly simple. To many people, negligence is something that they would know when they see it. Indeed, practically everyone intrinsically understands that to be negligent is to cause harm by failing to fulfill a duty owed. However, despite this simple definition, it can be surprisingly difficult to determine when a duty is owed under the law, what that duty is, and to whom it is owed. To make matters more complicated, Virginia law has undergone a number of relatively recent, significant changes which have made it more difficult than ever to answer these questions. This article will briefly discuss the general duty owed by all Virginians, two special circumstances in which an additional duty might be owed, and a recent, notable development under Virginia negligence law. Under Virginia law, each person has a general duty to exercise ordinary care to avoid injuring others as a consequence of his own actions. See Quisenberry v. Record No. 171494 Huntington Ingalls, Inc., 296 Va. 233, 243 (2018). Stated otherwise, the duty owed by a person is to mitigate the risks created by his own actions. For example, the driver of a vehicle creates a risk of harm to others by virtue of moving the vehicle, which can result in serious injury or death, and therefore has duty to take care in operating the vehicle, such as maintaining a reasonable speed. Accordingly, it is an important part of risk and liability analysis for every person to consider the reasonably foreseeable consequences of his own actions to understand the extent of his negligence liability....
by KPM LAW | Sep 9, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by Daniel Royce, Esq. Edited by Bill Pfund, Esq. Let’s start with a thought exercise in the form of a hypothetical: A motor vehicle accident takes place in Virginia between a Virginia Claimant and an out of state tortfeasor. Assume for the sake of the hypothetical that liability is clear, and the claimed injuries are so significant as to exceed the liability limits and UM/UIM limits of the claimant. The tortfeasor is afforded coverage by a liability policy with limits of $10,000 per accident/$20,000 per occurrence. The claimant has UM/UIM coverage in the amount of $100,000 per accident/$300,000 per occurrence. In this hypothetical defense counsel represents the UM/UIM carrier. The liability carrier has tendered the $10,000 limits and plaintiff’s counsel is looking to the UM/UIM carrier for contribution to the settlement. The claimant has demanded the policy limits of $100,000. The questions presented are: whether the UM/UIM carrier is entitled to a credit/offset for the liability limits of $10,000? Is the UM/UIM carrier exposed in the amount of $90,000 or $100,000? Is this an uninsured or under-insured claim? In our hypothetical, Plaintiff’s counsel takes the position that the tortfeasor’s out of state policy does not “roll up” to the Virginia minimum limits of $25,000 and therefore the tortfeasor is deemed uninsured (and not under-insured)….but wait, I thought there were no minimum limits in Virginia?!?! Technically correct, Virginia drivers can pay a fee to the DMV for the privilege of driving without insurance on the highways and byways of this great state. (see Va. Code 46.2-706 below). If you are like me, your immediate answer to this question is “of...
by KPMLAW | Sep 9, 2020 | Court
The Tenth Order Extending Declaration of Judicial Emergency through October 11, 2020 can be viewed here. The period of Judicial Emergency (during which applicable statutes of limitations are effected) now extends from March 16, 2020 through October 11,...
by KPMLAW | Sep 8, 2020 | Uncategorized
Written by Henry U. Moore, Esq. Edited by Bill Pfund, Esq. It is not an uncommon scenario in general liability cases for multiple plaintiffs to be injured in one accident – this is especially common in motor vehicle cases. Under Virginia law, each injured party has their own separate cause of action for their own physical injuries and emotional distress resulting from those injuries. However, the lines can become blurred between causes of action when a plaintiff makes a claim that they suffered emotional distress damages from witnessing the injuries to another party. For instance, this scenario can arise in a motor vehicle accident where more than one person in the same car is injured, and one plaintiff claims he suffered emotional distress from witnessing the injury or death of his fellow passenger. These are commonly referred to as negligent infliction of emotional distress (NIED) or “bystander” claims, and they are very hard to establish under Virginia law. Virginia is in the minority of states that do not allow recovery for solely emotional distress experienced by family members or bystanders in close proximity to the injury or death of another – even if that ‘bystander” is himself involved or injured in the accident. Rather, a plaintiff must show that they suffered accompanying physical injury resulting from the emotional disturbance or distress. In Hughes v. Moore, 214 Va. 27 (1973) the Virginia Supreme Court laid out this rule for bystander claims that is still in force in the Commonwealth. There, a driver ran his car off the road, struck a vehicle parked in the plaintiff’s driveway, and crashed into the plaintiff’s house. Although...
by KPMLAW | Sep 8, 2020 | Uncategorized
The Bureau of Insurance strongly encourages insurers and other licensees to be flexible and take into consideration the hardships and constraints many individuals and businesses are experiencing during this unprecedented public health emergency. For this reason, the Bureau encourages those it regulates to consider taking the following actions, consistent with prudent insurance practices: Insurers should consider relaxing due dates for premium payments, extending grace periods, waiving late fees and penalties, and allowing payment plans for premium payments to otherwise avoid a lapse in coverage. Insurers should also consider cancellation or non-renewal of policies only after exhausting all other reasonable efforts to work with policyholders to continue coverage. (Bureau of Insurance bulletin, March 27, 2020) The Bureau of Insurance (BOI) is not mandating that insurers provide flexibility with this statement, merely that insurers “should consider” not canceling policies if insureds have COVID-19 related issues that hamper premium payments. However, some insureds are taking advantage of the extensions of insurers and using this to shop rates or just take a break from premium payments. If insureds do not renew a policy, an insurer does not have to jump through all of the cancellation hoops contained in title 38.2 of the Code of Virginia. If an insured does not respond to an offer to renew, the policy lapses and the insured has no coverage as of the timeframe contained in the policy. Almost if not every insurer initially conditions renewal on receipt of premium when the insurer makes its first offer of renewal. This condition on receipt overrides any claims that simply mailing the premium prior to the due date suffices to renew the policy. By...
by KPM LAW | Sep 7, 2020 | KPMBlog, News, Profiles, Uncategorized
Written by: Jessica Relyea Edited by: Brian A. Cafritz As we previously explained, Virginia allows for one nonsuit, or voluntary dismissal, by plaintiff per case. A nonsuit allows the plaintiff to correct a flaw in their case and reset the matter to the start in a future filing, with no real penalty or hardship. While it is a powerful tool at plaintiff’s discretion, it does not shield plaintiff from their own wrongdoing. This begs the question of what happens if plaintiff waits to nonsuit their case until after a defendant gets a favorable verdict in General District Court? Can plaintiff appeal and nonsuit, allowing it to refile in district court and obtain a new trial, essentially voiding the judgment? Can the defendant move to dismiss the refiled pleading on the grounds of res judicata because the first district court judgment is final? To understand this issue, a little background is important. In Virginia, the district court is a court of limited jurisdiction. The maximum recovery is $25,000, discovery is limited, and a judge decides all cases. Either party can appeal the judge’s verdict to the Circuit Court for a de novo jury trial. Importantly however, is that if there is a defense verdict in district court, then on appeal, plaintiff cannot increase his or her ad damnum and seek more than $25,000. Afify v. Simmons, 254 Va. 315, 317-318 (1997). If plaintiff nonsuits after an appeal to Circuit Court, but before the jury trial, where does the case get refiled? What rules apply when it does? This issue came before the Supreme Court in the 2011 case of Davis...
