Attorney Blog

Court examines equitable division of tax refunds

hjamerson@buccidix.com (Blog Author)27475 — Sun, 28 Feb 2010 08:00:00 EST

In the divorce proceedings of King v. King, the Virginia Court of Appeals affirmed a Circuit Court decision deeming a portion of federal and state tax refunds to be marital property and distributing shares to both parties.

The Kings entered into a pre-marital agreement which expressly identified all separate property of the parties would remain separate during the marriage and any gains or losses from those separate properties would also be separate in nature. Among Mr. King's pre-marital separate property was a beach-house. The parties were married for a time, then separated. Despite the separation, however, the parties filed a joint tax return. The return indicated a significant loss on the beach-house. This loss resulted in a large tax refund to the parties.

While the beach-house remained Mr. King's separated property throughout the marriage, the Virginia Court of Appeals found the trial court did not err in apportioning part of the tax refund to Mrs. King. Evidence at trial showed that while the tax refund was due to the loss on the separate property beach-house, the amount of the refund was significantly larger than it would otherwise have been due to the parties' filing jointly. The trial court correctly traced the difference in the size the refund due to the method of filing and apportioned part of the refund to Mrs. King. Tracing of investment, returns, losses, and tax implications is extremely important in maximizing the equitable distribution due to a party in any divorce proceeding.

Adultery: Clear and Convincing

hjamerson@buccidix.com (Blog Author)25963 — Sun, 31 Jan 2010 08:00:00 EST

In the recent domestic relations case of Davis v. Davis, the Madison County Circuit Court awarded Ms. Davis a divorce on grounds of adultery. The standard for proving adultery in Virginia is clear and convincing evidence. In Davis, the Court found that sexually explicit voice-mails, an overnight visit, and Viagra in Mr. Davis's vehicle amounted to sufficient evidence to allow a finding of adultery. The Circuit Court's decisions were recently upheld by the Virginia Court of Appeals.

Additionally, in Davis, the Court found that cashing out certificates of deposit in order to purchase real estate just prior to separation amounted to marital waste.

The ramifications of findings of adultery or marital waste can have significant impacts on issues of spousal support and equitable distribution of the marital estate.

Court Invalidates Property Settlement Agreement Due to Mental Incapacity

hjamerson@buccidix.com (Blog Author)24326 — Thu, 31 Dec 2009 08:00:00 EST

The Virginia Court of Appeals recently ruled in the matter of Bailey v. Bailey and invalidated a property settlement agreement signed by both Mr. and Ms. Bailey.

Ms. Bailey, seeking a divorce, sought Mr. Bailey's endorsement of a property settlement agreement. The terms of that agreement awarded all marital assets to Ms. Bailey and apportioned all marital debts to Mr. Bailey. At the time he endorsed the settlement agreement, Mr. Bailey was on short-term release from treatment for schizoaffective psychotic disorder.

The Court of appeals determined Mr. Bailey lacked the requisite mental capacity to endorse the property settlement agreement. Virginia law subjects property settlement agreements to the same standards as contracts. A party to a contract, however, must have the mental capacity at the time to understand the nature and provisions of the contract. At the time, the evidence showed Mr. Bailey believed he was signing paperwork allowing him to go home. Accordingly, the trial court and Court of Appeals determined Mr. Bailey lacked the requisite mental capacity to contract and thus invalidated the property settlement agreement.

International Child Custody Ruling

jsasser@buccidix.com (Blog Author)23554 — Thu, 17 Dec 2009 08:00:00 EST

A panel of Brazilian judges ruled that a boy, taken from the United States by his mother in 2004, must be returned to his American father. The boy's mother took him to Brazil in 2004 for what was supposed to have been a 2 week vacation. However, she later obtained a Brazilian divorce and remarried. The boy's father has been seeking his son's return under an international treaty covering child abductions. Both Secretary of State Hillary Clinton and President Barak Obama have called for the child's return, and the case has made headlines for international child custody disputes.

Court of Appeals: Personal Injury Settlement was Marital Property

hjamerson@buccidix.com (Blog Author)22673 — Mon, 30 Nov 2009 08:00:00 EST

In Chretien v. Chretian, the Virginia Court of Appeals recently considered the issue of personal injury settlements and their place in equitable distribution schemes. The case was heard in Richmond on appeal from the Circuit Court of Orange.

In Chretien, Ms. Chretian was injured while riding as a passenger on her husband's motorcycle. Mr. Chretian's motorcycle crossed the double-yellow line, ultimately causing an accident. Ms. Chretian reached a settlement with various insurance companies for her injuries in the amount of almost $150,000. Three years after the settlement, the Chretians separated and ultimately divorced.

While the trial court ultimately ruled Mr. Chretian should not benefit from the settlement because of his negligence in causing the accident which injured his wife (a line of reasoning for which the Court of Appeals expressed approval), the Courts did make clear the rule for considering whether personal injury settlements are marital or separate:

Code § 20-107.3 provides: “In the case of any personal injury or workers’ compensation recovery of either party, the marital share as defined in subsection H of this section shall be marital property.” Code § 20-107.3(H) defines “marital share” as that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.

In Chretian, the Court ultimately determined there was no evidence Ms. Chretian's settlement compensated her for anything other than lost wages or unreimbursed medical expenses. Accordingly, the settlement was marital property. Unfortunatly for Mr. Chretian, however, the Court of Appeals upheld the trial court's finding that equity would not be served by affording Mr. Chretian any of the settlement due to his negligent operation of the motorcycle in the accident.

Tardiness Not Tolerated In Divorce Cases

mdix@buccidix.com (Blog Author)22392 — Tue, 24 Nov 2009 08:00:00 EST

In Bennett v. Bennett, the Virginia Court of Appeals held that challenges to a divorce decree filed after 21 days had passed were unacceptable.

In June 2008, husband filed for divorce in Newport News Circuit Court. Depositions were taken to establish relevant information in anticipation of the divorce, and the court granted husband's final decree of divorce shortly thereafter. A week after the court issued the divorce, wife filed an answer. Three weeks later wife argued that the initial divorce decree was in violation of court rules, and asked the circuit court to vacate the divorce decree.

The Virginia Court of Appeals held that, even if there was a violation of the rules of court, the circuit court no longer had jurisdiction to vacate the divorce decree. Essentially, once three weeks pass, trial courts in Virginia are without power to modify or nullify their orders.

Because divorce and other orders are only subject to modification for a short period of time, it is essential to retain counsel that will be attentive to the deadlines in your case. It is similarly important that your attorney be conversant with you regarding the disposition of your case in the trial court and your options for appealing the decision if desired. This case also reiterates a little-known fact: that procedural rules of court can be as crippling to your case as the substantive law.

Father's Parental Rights Terminated For Failing To Protect Daughter From Sibling

sbucci@buccidix.com (Blog Author)22389 — Tue, 24 Nov 2009 08:00:00 EST

The Virginia Court of Appeals upheld termination of a father's residual parental rights this week in Kilby v. Culpeper Department of Social Services. In may 2005, Mr. Kilby's younger child was placed in foster care after the Culpeper County Department of Social Services (DSS) discovered that the child's older brother had been sexually assaulting her for the past year. She sustained severe injuries from the assault. Mr. Kilby was prosecuted and convicted of cruelty or injury to a child based on his failure to prevent the abuse of his child. In conjunction with the child's removal and Mr. Kilby's prosecution, DSS provided counseling and services and encouraged Mr. Kilby to make hanges so that his home was a safe environment for the child. The Kilbys refused and DSS sought adoption for the child because the DSS no longer thought living at home was in the best interests of the child. DSS petitioned the circuit court for termination of the Kilbys' residual parental rights so the child could be adopted.

The circuit court granted termination of Mr. Kilby's parental rights, and he appealed, arguing that his conviction did not amount to "felony assault" on his child, which was a prerequisite to termination under the statute. In short, Mr. Kilby argued that since it was not he who inflicted the harm, but his other child, he could not be held accountable for that crime of omission. The Court of Appeals disagreed with Mr. Kilby and affirmed the trial court's ruling. It said that the term "felony assault" means any felonious crime resulting in serious injury to a child of the parent.

The Court of Appeals most certainly got this one right. In enacting child protection laws, the Virginia legislature had the overarching goal of protecting the heath and safety of the child. Regardless of whether the father's crime was one of omission or commission, once a parent fails to act in the best interests of their child, their parental rights are subject to termination.

Henrico Circuit Court's Order for Visitation Upheld In Case of Non-Biological Parent

hjamerson@buccidix.com (Blog Author)20861 — Sat, 31 Oct 2009 08:00:00 EST

The Virginia Court of Appeals recently affirmed a Circuit Court's decision to hold jurisdiction over a non-biological parent's petition for child custody and visitation. In the case of O'Rourke v. Vuturo, the Virginia Court of Appeals, sitting in Richmond, heard an appeal from the Henrico Circuit Court. Vuturo was listed as the child's father on the birth certificate. The child, however, while born during the marriage of Vuturo and his wife (now remarried and going by the name O'Rourke), was in fact the biological child of Mr. O'Rourke. While Vutro was away, his wife took the child to Maryland and moved in with O'Rourke. The Vuturos subsequently divorced and Mr. Vuturo sought visitation.

Under Virginia Code 20-146.12, Virginia Courts only have jurisdiction in custody issues if the child lives in the Commonwealth at the commencement of the proceeding or else lived in the Commonwealth within six months of the commencement with a parent or person acting as a parent continuing to live in the Commonwealth. In this case, the Henrico Circuit Court held jurisdiction over the matter because the child lived with Vuturo within 6 months of commencement of the action and Vuturo was a person acting as a parent as defined in Virginia Code 20-146.1. Vuturo developed a positive relationship with the child and a parent-child relationship developed. In fact, the Court saw no evidence that granting Vuturo visitation would result in actual harm to the child.

Divorce Appeal Dismissed For Inadequate Pleading

sbucci@buccidix.com (Blog Author)20786 — Thu, 29 Oct 2009 08:00:00 EST

In Kablach v. Kablach, the Virginia Court of Appeals affirmed the trial court's holdings, all of which were in wife's favor. In this case, husband and wife married in 1983. In 1999, wife had brain surgery and suffered decreased mental capacity as a result. In 2002, husband moved from the marital residence and began using joint assets for business transactions in his name only. In late 2002, husband had a separation agreement drawn up and executed by his diminished wife. The agreement provided for a limited amount of spousal support for a defined duration and a limited equitable distribution award.

After consulting an attorney, wife filed suit in circuit court, seeking to set aside the separation agreement. The trial court found the wife did not have the mental capacity to enter into the separation agreement, and it amended the divorce decree to provide extended monetary benefits to the wife.

Husband appealed the trial court's revision of the divorce decree. However, in the appeal he submitted to the Court of Appeals, husband failed to a transcript of the relevant proceedings from trial court for the appellate court to review. Failing to include the trial transcript violates Supreme Court of Virginia Rule 5A:27 and precluded the court of appeals from finding for the husband. In addition, husband failed include the principles of law to guide the court in his arguments and did not cite to any legal authorities. Both of these failures violate Supreme Court Rule 5A:20. On these grounds, the court of appeals summarily affirmed the trial court and upheld its revised divorce decree in favor of the wife.

There are two lessons to be learned from this case. First, take care to review the rules of court in whatever venue your lawsuit is being filed. The rules of court are often as important as the substantive law; both can preclude a ruling in your favor. Second, it is good practice to seek a local attorney who is familiar with the local rules of court as well as trial and appeal procedures.

Burden On Spouse To Prove That Assets And Debts Are Not Joint Property

sbucci@buccidix.com (Blog Author)20785 — Thu, 29 Oct 2009 08:00:00 EST

Under Virginia law, half of a couple's assets are presumed joint property of the marriage, and each party is entitled to one-half of the value unless challenged. In Layne v. Layne, the Virginia Court of Appeals ruled that a rental property which husband owned prior to the marriage was marital property, and wife was entitled to one-half of its value. Applying Virginia law, the court held that over the course of the marriage, wife made significant contributions to the upkeep, daily maintenance, tenant-seeking efforts, and leasing duties. Because the wife's efforts had contributed to the increase in value of the rental property, and because the proceeds from the renting were deposited into a joint bank account, the court held that the asset was to be divided 50/50.

In addition to presuming that assets of either husband or wife are jointly owned, Virginia law likewise presumes that the debts of either husband or wife are jointly owned. In Layne v. Layne, wife accrued $44,000 in debt from student loans over the course of the marriage. Husband argued that because he was not going to benefit from the increased earning capacity that wife's education would produce, he should not have to pay for one-half of the loans. The court disagreed with that argument. Instead, it noted that the loans were not used to pay for tuition or for books, but instead went entirely to family expenses.

While the outcome of this case may seem unfair, it is probably an even-handed and logical application of sound family law policy. The principle of this case is easy: assets and debts of one party are the assets and debts of the marriage. Absent proof that an asset or debt was kept entirely separate from one's spouse, it will be divvied up on divorce, and each party will shoulder an even burden or reward.

Medical Malpractice Suit Dismissed On Statute Of Limitations Grounds

mdix@buccidix.com (Blog Author)20782 — Thu, 29 Oct 2009 08:00:00 EST

In Chalifoux v. Radiology Associates of Richmond, Inc., a local trial court dismissed a woman's medical malpractice suit against her radiologist. The woman alleged that the radiologist negligently misread several tests and studies, which, if properly read, would have indicated that she had a brain tumor.

The allegedly negligent radiological tests were performed between December 2002 and October 2005. An immediate and threshold problem is apparent from these facts: in Virginia, the statute of limitations for personal injury lawsuits is only two years. In short, the law requires injured persons to file suit within two years of their injury. In this case, Ms. Chalifoux did not file her lawsuit until 2009, four years after the last negligent reading.

Despite Ms. Chalifoux's procedural default, Virginia law allows her an exception to the statute of limitations, called the “continuous treatment rule.” Under the continuous treatment rule, the injury (which starts the two-year statute of limitations clock) does not accrue until an entire course of treatment has concluded. In essence, the rule allows an injured plaintiff to use the latest date she was treated if the discrete medical visits are part of a single or continuous treatment regimen.

In applying the continuous treatment rule, the Richmond City Circuit Court found that Ms. Chalifoux's visits were not part of a continuous treatment. The court held that, even if each test was compared to all the past tests, each radiological test reading was a separate and distinct wrong. As such, the normal two-year statute of limitations should apply to each erroneous test reading.

Police Offers Alleges Civil Rights Violation By Local Government Officials

mdix@buccidix.com (Blog Author)20781 — Thu, 29 Oct 2009 08:00:00 EST

In mid-October, a Newport News police officer filed suit in federal district court, alleging that local government officials had violated his constitutional right to due process of law. The case is styled Hall v. City of Newport News.

The Fourteenth Amendment to the U.S. Constitution requires state and local governments to respect all rights, procedural and substantive, owed to individuals by law. When an individual believes that the government deprived him of a legal right, he can invoke the Fourteenth Amendment and sue the government for acting in an unconstitutional manner.

A due process violation is one of the allegations in Hall v. Newport News. In that case, Officer Hall was fired after two civilian complaints were filed against him in January 2007. He appealed that firing, and a grievance panel voted to reinstate him in October 2007. The city refused to re-hire Hall, and he remained out of work until a circuit court judge ordered the city to re-hire him in September 2008. Hall was not reinstated until November 2008, after the circuit court judge threatened the city with contempt orders. When he was finally reinstated, Hall was relegated to the records department and forbidden from making arrests, as he had in the past. The damage that Officer Hall alleges is the decreased chance for promotion in light of this treatment. Furthermore, the city has yet to pay Hall for the months between his successful appeal before the grievance panel and his actual reinstatement, a period of 13 months. Officer Hall is asking the federal trial court to award him $5 million for the deprivation of his rights and the damage to his reputation and job opportunities.

Prison Guard's Sexual Harrasment Claim Dismissed

mdix@buccidix.com (Blog Author)20382 — Wed, 21 Oct 2009 08:00:00 EST

A United States Magistrate Judge recommended that two sexual harassment claims be dismissed in an employment discrimination suit last week. In Sizemore v. Southwest Virginia Regional Jail Authority, a female prison guard challenged her termination as contrary to federal sexual harassment laws. In particular, the guard alleged that her superior officer had made illegal sexual remarks to her in such a sever and consistent manner as to amount to a “hostile work environment.” She also alleged that she was fired because she was a woman, in violation of the Civil Rights Act of 1964.

On the hostile work environment claim, the federal magistrate recommended dismissal. Federal law requires a plaintiff to demonstrate that an “objective, reasonable person” would find the work environment to be abusive or hostile and that the particular plaintiff actually found the working environment to be abusive or hostile. While the guard in this case produced sufficient evidence to show that a reasonable person would have found the prison to be an abusive or hostile work environment, the court held that she failed to produce any evidence that she actually found it to be hostile. The court stated that the female guard failed to show that she perceived the work environment to be hostile or abusive in the slightest, despite alleging many inappropriate comments.

On the second claim, for unlawful firing due to her sex, the magistrate judge likewise recommended dismissal. On that issue, the female guard produced evidence that male guards were more likely to be demoted or transferred for the same kinds of conduct she was disciplined and ultimately fired for. In response, the prison argued that the female guard was terminated for poor performance evaluations, repeated tardiness, and negligence in her daily work. The court found that argument persuasive, and held that the prison had supplied an adequate non-discriminatory basis for the firing. As such, the guard could not seek damages from the prison for unlawful termination.

Ex-Husband Forced to Pay for Childcare Rather than Provide it Himself

mdix@buccidix.com (Blog Author)20381 — Wed, 21 Oct 2009 08:00:00 EST

In Kappeler v. Kappeler, the Virginia Court of Appeals ordered a father to pay additional child support for after-school care rather than allowing him to care for his children instead. The initial child support agreement between husband and wife provided for joint custody and for support payments to compensate the mother while she had custody of the children. The agreement specifically excluded after-school care, but provided for before-school and summer-time care. A year after the initial agreement, wife sued husband attempting to increase child support to include after-school care. The husband cross-sued, arguing that he was making less money and that he was available to take care of the children after-school, thus obviating the need for increased support payments. The father pointed out that Virginia law requires a court to consider the willingness and availability of a noncustodial parent to provide child care in determining whether child-care costs are necessary or excessive.

The court acknowledged that argument, but held that it would be wholly inappropriate to allow husband to provide after-school care while wife had custody of the children. The court pointed to evidence of husband’s hostility and volatility toward wife, stating that these factors outweighed the considerations provided by law. The husband was ordered to pay additional child support and denied the ability to provide after-school care himself.

Federal Court to Rule on Employer's Liability for Post-Work Employee Negligence

mdix@buccidix.com (Blog Author)20379 — Wed, 21 Oct 2009 08:00:00 EST

A three-day jury trial is scheduled to take place sometime in December before the federal trial court for the Western District of Virginia. The trial will focus on whether an employee is within the scope of employment when he is staying overnight in a hotel room for the purpose of receiving operations training at another of his employer’s locations. No Virginia court has previously addressed this question.

In Rivett Group, LLC v. Chelda, Inc., Ham’s Restaurants sent a promising employee to receive management training at the restaurant chain’s Danville location. Because the training would take multiple days, Ham’s rented a room in the Super 8 Motel next door to its restaurant for the employee. During the night, the employee had other managerial trainees in his hotel room, and an ashtray was emptied into the trashcan. A fire resulted, causing over $300,000 in damages to the motel. In this case, the employee is responsible for the damage, but is the employer also liable for the actions of its careless employee?

In Virginia, like other jurisdictions, an employer’s liability for its employees’ negligence is determined by the scope of the employment relationship. If the employee-negligence is committed while the employee was acting within the scope of his employment (a postal worker delivering mail, for instance), then the employer is liable under the doctrine of respondeat superior. The difficult question to be answered in this case is whether an employee staying overnight at the request and expense of his employer is acting within the scope of the employment relationship.

The Super 8 Motel owners think that the employment relationship does encompass the overnight stay, borrowing a legal doctrine called the Bunkhouse Rule from Workers’ Compensation Law. Under that doctrine, if an employer provides housing for its employees, then the employer is liable for employee-negligence in the residence. While this rule may help inform the court’s decision, it is not clearly applicable to the unique facts of the case. It is unclear how the federal court will rule on this case of first impression in Virginia.

Failure To Attend Divorce Hearing Costs Husband Thousands

sbucci@buccidix.com (Blog Author)20378 — Wed, 21 Oct 2009 08:00:00 EST

In Darley v. Darley, the Virginia Court of Appeals summarily affirmed the Prince William County Circuit Court’s award of spousal support to Ms. Darley.

The Darleys were married in 1971. During their marriage, Mr. Darley was in the military. In 1999, husband and wife separated and husband moved to Panama. Since 2001, husband paid $500 per month in spousal support according to a spousal support order in Virginia Juvenile and Domestic Relations Court. Sometime in 2007, husband obtained a divorce in Panama, and in 2008 he asked the Prince William County court to acknowledge to foreign divorce. Because he still lived in Panama, the husband did not attend the divorce hearing. The wife testified that she was unemployed and unable to find work. She was also on Social Security and relied on her children and credit cards to meet her living expenses. Without testimony from the husband, the court awarded wife 50% of the husband’s military retirement pay, $600 per month in spousal support (rather than $500), and $1,500 in attorney’s fees.

The husband challenged this decision, arguing that the trial court could not award so much to his former wife when there was no evidence that he had any income in addition to his military retirement pay. He also argued that the increase in support was unwarranted. Citing the husband’s failure to appear at the divorce hearing, the court affirmed both decisions of the trial court. Since the husband did not appear to testify about his sources of income or to refute the wife’s testimony about her costs of living, he was unable to challenge the trial court’s rulings.

Biological Father's Eight-Year Custody Battle Finally Concludes

sbucci@buccidix.com (Blog Author)20149 — Fri, 16 Oct 2009 08:00:00 EST

The Supreme Court of Virginia recently affirmed a custody award to a guardian rather than the child’s biological father, thus ending a long battle to determine the child’s proper caregiver.

In Florio v. Clark, the parents of Jacob Florio never married and were separated at the time of his birth. In 1997, the Gloucester County Juvenile and Domestic Relations Court entered an order providing that the mother was to have custody with “liberal visitation” to the father. Soon thereafter, the mother and Jacob moved in with the mother’s sister and her husband (the Clarks), and Mr. Clark acted as a surrogate father to Jacob. During that time, Jacob’s biological father made few efforts to contact his son.

In 2001 Jacob’s mother developed heart disease and passed away. Immediately before her passing, his mother had named her sister (Mrs. Clark) to be Jacob’s guardian. Just two days after the mother’s death, father petitioned the JDR court for custody of Jacob. That petition was granted, and Jacob was transferred to his father’s custody. Five months later, the Clarks challenged that custody determination, and the court reconsidered. It ruled that Jacob’s father was unfit to have custody because he was living in a trailer with his poarents, he was without any income, and he had no means of transportation. Jacob’s father appealed the decision to circuit court, which upheld the award of custody to the Clarks. The father appealed that decision to the Virginia Court of Appeals, where the custody award was again upheld against him. Jacob’s father finally appealed to the Supreme Court in 2009, where the highest court in Virginia agreed with the lower courts.

The Supreme Court stated that custody should be awarded according to the best interests of the child. In Virginia, courts will grant a biological parent the presumption of fitness to parent, and award him custody unless that presumption is rebutted. The Court then cited to the father’s absence, his lack of support over the years, and his inability to provide for Jacob. These elements established the biological father’s unfitness as a father, and the court awarded the Clarks custody for good.

Despite wife's claim of husband's fraud, court dismisses wife's appeal because of provision in the property settlement agreement precluding appellate review

briggenbach@buccidix.com (Blog Author)19782 — Fri, 09 Oct 2009 08:00:00 EST

The Virginia Court of Appeals, an appellate court whose jurisdiction includes appeals of the decisions of trial courts involving issues of divorce, custody, visitation, spousal support, child support, property settlement agreements and other family law issues, dismissed an appeal from a Virginia Circuit Court because of a provision in the property settlement agreement (PSA) which precluded appellate review.

In Burke v. Burke, the wife separated from her husband who had served in the military for over twenty two years and with whom she had been married for seventeen years. After they separated and before the wife filed for divorce, the parties discussed proposed terms for the PSA, including the wife continuing to receive coverage under the husband’s military health insurance plan. The PSA was later drafted by the wife’s attorney and signed by the husband who was an attorney.

The PSA contained a provision allowing the wife to continue to receive the military health insurance coverage as they had discussed, but also stated that the coverage would be “as provided by law”. Because federal law does not allow military health insurance coverage to continue after divorce decrees are entered, her military health insurance coverage ended when the divorce decree was entered.

The PSA also contained a provision that all Circuit Court decisions relating to the PSA would be final and not subject to appeal.

After the divorce decree was entered and the wife learned that her military health insurance coverage ended, she filed a Circuit Court lawsuit claiming that she was the victim of fraud by her then ex-husband regarding her health insurance coverage.

The trial court found that her ex-husband “deliberately misled” the wife and concealed “material facts” about her future health care coverage when signing the PSA, vacated the health care benefits provision in the PSA and reformed it. However, the wife was still dissatisfied with the trial court’s decision and appealed.

The Virginia Court of Appeals dismissed her appeal. Despite the wife’s claims of fraud and dissatisfaction with the trial court’s decision about health insurance coverage, the Court of Appeals upheld the PSA provision declaring that all decisions by the trial court relating to the PSA would be final and not subject to appeal. In reaching its decision, the Court of Appeals rejected the wife’s arguments that the PSA appeal provision was void as against public policy. It reaffirmed established Virginia law which allows parties considerable freedom in negotiating contracts and agreements, like PSAs, even those that include the waiver of significant rights, like health insurance coverage.

Federal lawsuit filed by husband backfires in custody case

mdix@buccidix.com (Blog Author)19693 — Wed, 07 Oct 2009 08:00:00 EST

The Virginia Court of Appeals recently affirmed a trial court’s reassessment of child custody rights following a divorce settlement. In Serdah v. Serdah, husband and wife separated and entered into a settlement agreement. They agreed to joint legal custody of their only son, with primary physical custody to wife. The parties also agreed that wife would have tie-breaking power in the event of a disagreement between them. Nearly two years later, presumably due to disagreements between the parties, wife filed a motion to amend custody from joint legal custody to sole legal custody in Juvenile & Domestic Relations Court. In response, the husband filed a lawsuit in federal court, alleging that wife’s increasing control over their son violated his Fourteenth Amendment liberty interests to the companionship, care, custody, and control of his son. The wife lost in JDR Court and appealed to the local trial court, where she argued that the husband’s separate federal lawsuit evidenced his inability to deal with her in child-related matters.

The trial court agreed and admitted the lawsuit into evidence, holding that the husband’s allegations in the federal suit helped determine the best interests of the child pursuant to the Virginia’s child custody laws. The Court of Appeals affirmed the trial court, holding that because the husband’s federal lawsuit tended to prove a fact in issue (the husbands willingness and ability to deal with the wife), it was properly admitted into evidence and considered by the court.

Trailer park cohabitation between ex-wife and man insufficient to terminate spousal support obligation

sbucci@buccidix.com (Blog Author)19691 — Wed, 07 Oct 2009 08:00:00 EST

In an unpublished opinion authored by the chief judge of the Virginia Court of Appeals, a wife’s living arrangements were found to create only the “perception of cohabitation” insufficient to nullify spousal support payments pursuant to a divorce decree. The husband and wife in Tolley v. Tolley, were divorced in June 2006. The final divorce decree required husband to pay $1200 per month in spousal support, but only subject to certain limitations: the spousal support arrangement would terminate if (1) husband or wife died, (2) if wife remarried, or (3) if wife cohabitated with a member of the opposite sex in a relationship analogous to marriage. Over the next two years, wife shared a trailer home with another man and occasionally paid his bills from her bank account. Believing the two were holding themselves out as husband and wife, and thus believing that the divorce decree was violated, husband asked a Hampton trial court to terminate his obligation to pay spousal support under the decree.

The trial court found that the wife’s living arrangements created only the perception of cohabitation and held that the relationship was not analogous to marriage. The Court of Appeals agreed. The Court looked at four factors to decide whether prohibited cohabitation had occurred: (1) sharing of a common residence, (2) intimate behavior or romantic involvement, (3) provision of financial support, and (4) the duration and continuity of the relationship. Weighing these factors, the Court found that simply living together was inadequate to establish a relationship analogous to marriage. The Court of Appeals affirmed the judgment of the trial court, upheld the divorce decree, and order continued payment of spousal support.

The case stands as a reminder that it is often difficult to establish a "relationship analogous to marriage." In this case, the standard had not been met even when the wife lived with another man and paid bills over 2 years.

Material Change In Circumstances Does Not Lead To Reduction In Spousal Support

sbucci@buccidix.com (Blog Author)19101 — Mon, 28 Sep 2009 08:00:00 EST

The Court of Appeals recently affirmed the trial court's refusal to reduce a spousal support obligation, despite a finding that there was a material change of circumstances. In Lane v. Lane, husband and wife divorced in 1997. In the separation agreement (which was incorporated into the divorce decree), husband agreed to pay wife $6,000 per month, wife agreed to try to make herself more finanically self sufficient, and the parties agreed to renegotiate if husband's income was reduced substantially. After divorcing, husband bought and sold high end real estate. Wife also entered the real estate market.

Husband suffered significant business losses in the downturn in the real estate market, and sought to have his spousal support obligation reduced. The trial court held, and the Court of Appeals agreed, that the market crash led to a material change in circumstances that was not the husband's fault.

However, the Courts noted that in addition to there being a material change, that change must also warrant a modification of support. In looking at the facts of the case, the trial court observed that the wife had suffered losses in the real estate market as well; she had been diagnosed with cancer which affected her income generating ability; and the husband made "good business decisions" and therefore had a much greater earning capacity than wife.

Accordingly, the Court held that "[n]ot every material change of circumstance justifies a modification of spousal support." The Court rejected the husband's argument that the wife failed to make a good faith effort to improve her earning capacity. This case stands as a reminder that even where there is a material change in circumstances that is not the payor's fault, a reduction of support obligations is not automatic.

Literal Terms of Settlement Agreement Enforced To Limit Attorney's Fees Claim

mdix@buccidix.com (Blog Author)19097 — Mon, 28 Sep 2009 08:00:00 EST

The Virginia Court of Appeals affirmed that the terms of a property settlement, like any other contract, must be interpreted exactly as written. In Everett v. Everett, the wife contended that the parties’ property settlement agreement required her husband to pay for all of her attorney’s fees and costs associated with the divorce proceeding. In contrast, the husband argued that the agreement only required him to cover her attorney’s fees if he sought a reduction in child support. The trial court applied principles of contract interpretation to the agreement and sided with the husband. The Court of Appeals, after an independent inquiry, agreed.

The Court of Appeals especially looked to the interpretation placed on the settlement agreement by the parties themselves to determine the agreement’s meaning. The Court found the wife’s own actions especially telling: when the husband filed a motion to reduce child support, the wife sought full reimbursement of her attorney’s fees; but when the husband disputed custody of their children, the wife consented to pay her own fees. These actions, the Court said, were consistent with the trial court’s interpretation of the agreement—that the husband would pay for only those attorney’s fees associated with his attempts to reduce child support.

Finally, the husband challenged the wife’s attorney’s fees as excessive. The Court of Appeals rejected this argument, stating that the wife could recover her full attorney’s fees associated with two attempts by the husband to reduce child support, but not the additional costs associated with expedited deposition transcripts the wife requested.

Let this opinion be a warning: draft settlement agreements with the utmost care because a period in the wrong place could cost you. Although the temptation might be to adopt a 'form' settlement agreement to save expenses, one can end up penny wise and pound foolish if sufficient care is not given.

Judges in the News

mdix@buccidix.com (Blog Author)19096 — Mon, 28 Sep 2009 08:00:00 EST

Supreme Court Justice Ruth Bader Ginsburg was released from a Washington, D.C. hospital Friday afternoon. She was hospitalized for light-headedness following a routine outpatient treatment for iron deficiency. Justice Ginsburg, the High Court’s sixth-most senior member, also underwent surgery in February related to early-stage pancreatic cancer.

Virginia Supreme Court Justice Barbara Keenan was recently nominated to fill a longtime vacancy on the United States Court of Appeals for the Fourth Circuit in Richmond. Justice Keenan has served on the Supreme Court of Virginia for nearly two decades, and she is one of only three individuals to serve at all three levels of the Virginia state court system.

Justice Keenan’s nomination is significant because the Fourth Circuit is known for two things: its high number of vacancies on the federal bench and its conservative jurisprudence. As President Barack Obama tries his hand at filling judicial vacancies—presumably with more liberal jurists—the Fourth Circuit may simultaneously lose both of these reputations. Also noteworthy, if Justice Keenan is confirmed rapidly enough, Governor Tim Kaine will nominate yet another jurist to the Virginia Supreme Court, bringing his total to three appointments to the state’s highest court.

Child Visitation Denied To Alleged 'Stepparent' Because She Was Not A 'Person With A Legitimate Interest'

sbucci@buccidix.com (Blog Author)18494 — Thu, 17 Sep 2009 08:00:00 EST

The Court of Appeals has denied child visitation to a lesbian former 'stepparent.' In Damon v. York, husband and wife divorced, with one child. Wife was awarded custody, and thereafter cohabitated with Appellant Damon. The two were married in Canada under a same-sex marriage law. After 21 months, the couple then broke up, and Damon sought visitation rights with the child. She contended that she was a 'person with a legitimate interest' under Code Section 20-124.1, as she was an actual or equivalent of a stepparent.

The appellate court affirmed the trial court's denial of Damon's visitation request. First, the court noted that under Virginia's Affirmation of Marriage Act, a Virginia courts must treat Damon's same sex marriage to wife as void. Further, Damon failed to establish that she was the 'functional equivalent' of a stepparent, as she lived with the child for only 21 months, and the mother testified that Damon was merely an 'adult presence' in child's life.

Of particular note, Damon seized on comments made by the trial court judge that she may have been a functional equivalent of a stepparent at one point, but was no longer at the time of the court's ruling. Damon argued that she therefore had standing to obtain child visitation rights. The Court of Appeals disagreed, noting that if it were to agree , it would have to hold that when someone attains status as a de facto family member, they then have a perpetual right to seek visitation.

Premarital Agreement Possibly Void Because Unconscionable

sbucci@buccidix.com (Blog Author)18461 — Wed, 16 Sep 2009 08:00:00 EST

The Virginia Court of Appeals has reversed a trial court's decision to strike a wife's evidence that a premarital agreement was void because it was unconscionable. In Chaplain v. Chaplain, the wife contended a premarital agreement was void because she did not understand the terms of the agreement. The prenuptial agreement at issue gave the wife nothing, except the right to $100,000 if she were married to husband when husband died. However, the husband was allegedly worth 20 million dollars. The wife was born in Morocco and claimed she spoke little english when she signed the premarital agreement in 1997. She further claimed that she did not understand the agreement and that she was not provided with a copy of the prenuptial agreement either before or after she signed it. Further, the husband represented that he was a "poor man."

The trial court found that wife failed to make a prima facie case, but the Court of Appeals reversed and remanded the case for further evidence to be taken. The Court noted that there "ample evidence" of a gross disparity in the division of assets, and overreaching to support a finding of unconscionability.

The decision appears to be significant in 2 ways. First, perhaps arguments of unconscionability may hold sway in future cases. Generally, unconscionability arguments fail, but in this case at least, it was successful, and perhaps courts will be more willing to accept such arguments in the future. Second, it shows the appellate court's disapproval of striking evidence prematurely.

Federal District Court Remands Personal Injury Action to State Court.

cverity@buccidix.com (Blog Author)13207 — Thu, 04 Jun 2009 08:00:00 EST

The United States Federal District Court for the Eastern District of Virginia-Richmond Division remanded a personal injury action based on negligence back to state court. Despite plaintiff's medical expenses of $63,964.92, he/she had only sued for $74,900. The court reasoned that the plainitff's ability to amend his/her Complaint was not enough to keep the action in federal court. Under 28 U.S.C. 1332, a plaintiff must allege an amount in controversey that exceeds $75,000 in order to have his/her state law claim heard in federal court.

Tractor Trailer Accident On Interstate 95

hjamerson@buccidix.com (Blog Author)12008 — Thu, 14 May 2009 08:00:00 EST

A Maryland man was killed this week when the tractor trailer he was driving crashed into a vehicle stopped at a construction zone causing a six-car pileup. The fatal vehicle accident occured on Northbound I-95 at exit 35 in Maryland. One driver was injured and had to be transported by ambulance to the hospital for leg injuries. A major gas spill closed the roadway for several hours after the accident.

Virginia Supreme Court Denies Applicability of Employer's Arbitration Agreement for Employee's Lawsuit.

cverity@buccidix.com (Blog Author)11839 — Mon, 11 May 2009 08:00:00 EST

The Supreme Court of Virginia denied the applicability of an arbitration agreement between Dillard’s Inc. and its employees. This case arose when Dillard’s terminated two employees for suspicion of embezzlement and then filed criminal charges against the employees. Thereafter, the criminal charges were dismissed and the employees brought a civil action of malicious prosecution against Dillard’s. Dillard’s attempted to enforce an arbitration agreement with the employees but the trial court denied its request. The Supreme Court of Virginia granted an interlocutory appeal but decided against Dillard’s. The Supreme Court reasoned that the language in the contract was too narrow to include actions take between the employee and employer after the employee was terminated.

Bus Accident Leaves Child In Emergency Brain Surgery

hjamerson@buccidix.com (Blog Author)11544 — Sun, 03 May 2009 08:00:00 EST

A school bus accident in Charlotte, North Carolina has left an 11-year old boy in the hospital after emergency brain surgery. Police say the bus driver lost control of the bus causing the accident. The driver has been charged with reckless driving. The treating physician commented on the child's injuries saying, "he didn't report any significant loss of consciousness, but he was acting a bit dazed and was ... lethargic and answering things slowly." Doctors have to make quick decisions as to whether or not to operate in brain injury cases, because delay can mean serious injury to the brain and permanent consequences. The boy is now recovering, following surgery.

Bus Driver Settles His Claim For 5 Million Dollars While Jury Deliberates in Richmond Circuit Court.

cverity@buccidix.com (Blog Author)11542 — Sun, 03 May 2009 08:00:00 EST

A bus driver settled his personal injury claim for 5 millions dollars while the jury was deliberating during a trial in Richmond Circuit Court. Terry Shoemaker, age 56, was driving a group of high school seniors to Disney World when he was involved in a terrible accident with a tractor trailer, causing Shoemaker to lose his lower left leg and foot. The defense argued contributory negligence. However, plaintiff’s counsel successfully moved the Court to exclude the defense’s accident reconstruction expert. Shoemaker’s past and future medical expenses totaled $457,000 and his lost earnings and lost earnings capacity totaled $350,000. Today, Shoemaker still drives buses with the aid of an artificial leg but his ability to walk is limited on certain terrain. During trial, the jury saw a video of Shoemaker on crutches escorting his daughter down the aisle at her wedding with others there to catch him if he fell.

Employment Discrimination - Title VII - Back Pay - Attorney's Fees

mdix@buccidix.com (Blog Author)11299 — Fri, 24 Apr 2009 08:00:00 EST

Lawyers for the plaintiff in a federal employment discrimination lawsuit pending in the U.S. District Court for the Eastern District of Virginia in Richmond were awarded attorneys’ fees of $107,000 on December 23, 2008. At trial, a jury awarded Hartnett $200,000 for her claim under Title VII of the Civil Rights Act of 1964 against the Brunswick County school board. Judge Henry Hudson, in addition to awarding attorneys’ fees, awarded Hartnett back pay in the amount of $34,167. In reaching its determination as to the appropriate award of fees to make, the court looked at the prevailing market rate for attorneys with similar experience in Richmond, Virginia.

Virginia Supreme Court to Consider Podiatrist Evidence

hjamerson@buccidix.com (Blog Author)11212 — Wed, 22 Apr 2009 08:00:00 EST

The Virginia Supreme Court in Richmond today announced that it will hear the appeal of an injured Roanoke man. The injured railroad worker sought to introduce causation evidence at trial from a treating podiatrist. His request was denied by a Roanoke trial judge, however, because podiatrists do not have same statutory exemption under Virginia law that chiropractors enjoy. That may change, however, after the Virginia Supreme Court considers the case.

Drunk Driving - Punitive Damages Verdict Upheld

sbucci@buccidix.com (Blog Author)11121 — Mon, 20 Apr 2009 08:00:00 EST

The Rockingham Circuit Court has upheld a jury's verdict in a drunk driving, punitive damages case. The plaintiff claimed approximately $10,000 in past and future medical bills and the jury returned a verdict of compensatory damages in the amount of $80,000. Further, the jury returned verdict of $200,000 in punitive damages. The defendant moved to reduce the jury verdict on the grounds it was excessive.

The court noted that the compensatory damage award was only 8 times the plaintiff's claimed special damages, and as such, did not "shock the conscience" of the court. Regarding the punitive damage claim, the court noted that the defendant had previously been convicted of multiple DUI incidents, had a .32 BAC level, and showed little remorse for the accident. As such, the court held that the verdict was not excessive considering the circumstances surrounding the DUI.

Virginia Evidence Rules In Limbo

sbucci@buccidix.com (Blog Author)11119 — Mon, 20 Apr 2009 08:00:00 EST

It appears that the movement to codify a set of Virginia Rules of Evidence has stalled. Virginia is one of the only states that does not maintain a set of rules. Instead, Virginia evidence law is basically a hodge podge of of rget="_blank">statutes and case law. On the other hand, most states maintain a set of rules that are derived from the Federal Rules of Evidence. Over the last several years, there have been suggestions to create a more organized and systemmatic set of Virginia Rules of Evidence.

Why the resistance? For starters, it takes Virginia lawyers years (if ever) to learn the relevant statutes and case law that govern evidentiary issues in Virginia. If the rules were codified, there is a good chance that this hard earned knowledge would be obsolete. Also, questions arise whether Virginia's case law on evidentiary issues would go out the window, and instead the Virginia courts would look to the developed case law in federal courts when interpreting Virginia Evidentiary Rules (which would likely borrow from the Federal Rules).

In the end, it makes a lot more sense to have a codified set of evidentiary rules. A codified set of rules would improve consistency and predictibility in evidentiary rulings throughout the Commonwealth.

United States District Court Denies Summary Judgment in Supermarket Slip and Fall Case.

cverity@buccidix.com (Blog Author)11085 — Sun, 19 Apr 2009 08:00:00 EST

The United States District Court for the Western District of Virginia in Roanoke denied defendant’s motion for summary judgment in a supermarket slip and fall case. The plaintiff slipped on green grapes that had fallen on the floor in the produce section of a Kroger grocery store. The store clerk in the produce section was stocking red grapes on the opposite side of the island from the green grapes. Kroger trains its employees to inspect for fallen items and to clean them up immediately. The store clerk admitted that he should have seen the green grapes on the floor. The court held that a reasonable jury could find that the clerk had breached the standard of care and was therefore negligent because he was in the area 10 minutes before the fall, should have noticed the grapes, and should have removed them.

Twelve-Year-Old Girl Injured in a Boating Accident on Smith Mountain Lake Settles for $303,500

cverity@buccidix.com (Blog Author)11030 — Fri, 17 Apr 2009 08:00:00 EST

The minor victim of a boating accident on Smith Mountain Lake on July 2, 2005 settled the case for $303,500. Specifically, a twelve-year old girl traveled to the lake with friends. The girl’s parents entrusted her supervision to certain adults who then delegated her supervision to other adults. In the process, the girl was being towed behind a personal watercraft (jet ski) operated by the adult defendant with a minor passenger who was responsible for watching the girl. The defendant adult operator of the personal watercraft operated the watercraft in such a manner as to throw the girl from the tube. Subsequently, a second defendant ran the girl over causing severe personal injures to her legs, groin and femoral artery. The case settlement was comprised of the limits of the only applicable insurance policy and money paid out of pocket from one of the defendants.

Whistleblowers win partial victory

mdix@buccidix.com (Blog Author)10983 — Wed, 15 Apr 2009 08:00:00 EST

The U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia reversed a lower court’s decision to set aside a $10 million verdict rendered by a jury against a government contractor and in favor of two whistleblower employees of the company, in a civil fraud case arising as a result of government contractor services provided by the company in Iraq.

Chesterfield J&DR Judge is Frontrunner for Circuit Court Seat

hjamerson@buccidix.com (Blog Author)10980 — Wed, 15 Apr 2009 08:00:00 EST

Chesterfield Circuit Court may soon return to full strength. The local legislative delegation has announced its support for current Chesterfield J&DR Court Judge Harold W. Burgess, Jr. It is now up to Governor Tim Kaine to make a pro tempore appointment to fill the seat vacated by Judge Cleo Powell when she took a seat on the Virginia Court of Appeals.

Car accident claims life of Henrico County resident

sbucci@buccidix.com (Blog Author)10979 — Wed, 15 Apr 2009 08:00:00 EST

A Henrico woman was killed in a car crash in the early morning hours of February 6, 2009. Reports indicated that the woman may not have been wearing her seatbelt.

The National Highway Traffic Safety Administration estimates that there were approximately 1,700 traffic deaths and 841,000 personal injuries arising from automobile accidents in 2007.

NHTSA also estimates that approximately 11,000 lives were saved by people wearing their seatbelts.

Qimonda plant to lay off 1,500 workers

sbucci@buccidix.com (Blog Author)10978 — Wed, 15 Apr 2009 08:00:00 EST

Qimonda AG will shut down its Henrico plant, and will lay off approximately 1,500 Richmond area workers. Labor and employment lawyer Mark Dix was recently interview by WTKR TV6 regarding the plant closing.

Hopewell Discrimination Lawsuit Settles

hjamerson@buccidix.com (Blog Author)10840 — Fri, 10 Apr 2009 08:00:00 EST

The U.S. Equal Employment Opportunity Commission has announced a settlement in an employment discrimination case brought in the U.S. District Court in Richmond. The defendant in the lawsuit, Airgas Carbonic, Inc., is a Pennsylvania based company with a plant in Hopewell, Virginia. The lawsuit accused the company of refusing to promote an employee at its Hopewell plant because he is black. Airgas Carbonic will pay $40,000, revise its anti-discrimination policy and provide training to its supervisors about federal anti-discrimination laws.

$3.2 Million Verdict for Injured Shopper

hjamerson@buccidix.com (Blog Author)10839 — Fri, 10 Apr 2009 08:00:00 EST

An injured IKEA shopper received good news from a Fairfax County jury today. The jury returned a verdict of $3.2 Million in favor of the plaintiff in a premises liability lawsuit arising from injuries the shopper suffered when vertically stacked eight-foot-long countertops, secured only by a bungee cord, fell on her. Two surgeries left the injured shopper with damages of $75,000 in medical bills, $50,000 in lost wages, and permanent disabilities.

The shopper must be glad she did not settle the matter, as IKEA's highest offer prior to trial was $220,000.

$540,000 will settle NN police death suit

mdix@buccidix.com (Blog Author)10823 — Fri, 10 Apr 2009 08:00:00 EST

U.S. District Judge Jerome B. Friedman in Norfolk, Virginia approved a $540,000 settlement in a civil rights lawsuit filed as a result of the death of Robert L. Harper, who was shot and killed by a Newport News police officer. The lawsuit, filed in federal court, alleged excessive force by police and sought damages under, among other things, § 1983 of the Civil Rights Act of 1871. Under Virginia law, wrongful death settlements have to be court-approved.

Slip and Fall Injury Lawsuits Keep Theme Parks in Court

hjamerson@buccidix.com (Blog Author)10816 — Fri, 10 Apr 2009 08:00:00 EST

Richmond area theme parks should take notice of a recent article in the Orlando Sentinel. The vast majority of law suits brought against Florida theme parks are related to injuries suffered from slip and fall accidents. Theme parks offer so many services (transportation, dining, shopping, animal shows, live entertainment, and mechanical attractions) to thousands of people every day that it is no surprise injuries arise during the course of business. Nonetheless, the large jury verdicts and settlement amounts awarded in successful claims for slip and fall injuries will likely grab the attention of Ashland's King's Dominion and Williamsburg's Busch Gardens.

$490,000 verdict upheld: one less defense in auto accident personal injury trials

hjamerson@buccidix.com (Blog Author)10806 — Thu, 09 Apr 2009 08:00:00 EST

The Virginia Supreme Court handed down a decision in Richmond during its January session which removes the "unavoidable accident" doctrine from the available defenses in personal injury claims arising from automobile, motorcycle, and truck accidents. A car accident in Central Virginia gave rise to the case of Hancock-Underwood v. Knight, 227 Va. 127 (2009). An Amherst County jury awarded the victim's family $490,000 in compensation for the death and injuries suffered as a result of the car accident. That verdict was upheld in the Virginia Supreme Court's decision.

In reference to the "unavoidable accident" doctrine, Justice Donald W. Lemons wrote for the Court: "In consideration of the prevailing concerns of the states that have rejected the instruction -- that it merely restates the law of negligence, overemphasizes the defendant's case , and is apt to confuse and mislead - we join those states and hold that it is error to grant an unavoidable accident instruction." Id. at 136.

Dealing With Brain Injuries

mdix@buccidix.com (Blog Author)10768 — Wed, 08 Apr 2009 08:00:00 EST

The tragic case of traumatic brain injury victim Natasha Richardson following a ski accident highlights the need to seek medical treatment rapidly following an insult to the head. As noted in this Time article, the common signs of a serious brain injury include worsening headache, confusion, disorientation and nausea, as well as problems with communication such as slurring of speech, sleepiness, facial drooping and clumsiness. These symptoms are similar the same signs of stroke noted by the American Heart Association:

Sudden numbness or weakness of the face, arm or leg, especially on one side of the body
Sudden confusion, trouble speaking or understanding
Sudden trouble seeing in one or both eyes
Sudden trouble walking, dizziness, loss of balance or coordination
Sudden, severe headache with no known cause

The article highlights the need to seek medical attention within a "golden hour" after suffering a mild traumatic brain injury. Luckily, as noted on the Virginia Department of Health's website, in the Richmond area there are a number of trauma centers well-suited to examine, handle, and treat victims of mild traumatic brain injury.

Lawsuit Against Deceased Defendant Cannot Be Amended

sbucci@buccidix.com (Blog Author)10752 — Wed, 08 Apr 2009 08:00:00 EST

The Salem Circuit Court has found that a personal injury lawsuit was untimely filed because the statute of limitations had run, and the previously nonsuited case was a legal nullity. The plaintiff filed his lawsuit prior to the expiration of the statute of limitations against the defendant, who was deceased. The plaintiff then nonsuited the case, and refiled it after the expiration of the statute of limitations. Thereafter, the plaintiff moved to amend the lawsuit to substitute the decedent’s personal representative in place of the decedent defendant.

Citing to the Virginia Supreme Court case of Johnston Memorial v. Bazemore, the Circuit Court judge held that the amendment could not be allowed. The initial personal injury lawsuit against the decedent defendant constituted a “legal nullity.” Although the Virginia Code permits a lawsuit to be amended to name the personal representative, this provision does not apply if the initial case was nonsuited and the statute of limitations has expired.

Auto Accident Lawsuit Found To Be Timely Filed

sbucci@buccidix.com (Blog Author)10726 — Tue, 07 Apr 2009 08:00:00 EST

A Hanover Circuit Court judge has found that a lawsuit arising from an automobile accident in Hanover was timely filed after it appeared that the statute of limitaitons may have expired, because there was an earlier lawsuit that was filed in Ohio before the statute of limitations expired. In a typical car accident case, there is a 2 year statute of limitations to file a lawsuit. Also, there are usually several different venues that a personal injury lawyer can file a lawsuit. Most personal injury lawsuits arising from auto accidents do not have to be filed in a mandatory venue. Rather, there are usually several different permissible venues from which a plaintiff's lawyer can chose to file a lawsuit.

In the Hanover County case, the plaintiff filed a lawsuit in an Ohio court even though the accident occurred in Virginia, one day before the 2 year statute of limitations expired. Then, after the statute of limitations expired, the plaintiff filed another lawsuit in Norfolk. The Ohio court then transferred the case to Norfolk, and the Norfolk judge dismissed the first lawsuit, and transferred the second lawsuit to Hanover.

The defendant moved to dismiss the case because the second lawsuit was filed after the expiration of the statute of limitations. However, the judge found that under Virginia law the statute of limitations was "tolled," or delayed, while the first suit was pending. Accordingly, it was not too late to file the second suit in Norfolk.

Circuit Court Judge Orders Reduction Of Jury Verdict In Mold Case

sbucci@buccidix.com (Blog Author)10328 — Thu, 26 Mar 2009 08:00:00 EST

A Loudon County judge recently reduced a jury award in a mold exposure case in which a family claimed to have sustained personal injuries due to mold in their home. The jury awarded 4.75 million dollars, and the trial judge reduced the award to 1.45 million dollars. The judge found in part that the verdict was excessive, leading the judge to believe that the jury had misunderstood the law. The judge further noted that although one of the plaintiff's had suffered significant injuries, the injuries were not permanent in nature.

The judge's decision appears to be at odds with Supreme Court precedent, which requires that a verdict "shock the conscience" to be reduced. In Norfolk Beveridge v. Cho, a husband and wife were assaulted by a truck driver and incurred $1,300 and $8,500 in economic damages respectively. The jury returned verdicts of $160,000 and $310,000. In a very brief analysis, the Supreme Court simply noted that "the amount of the jury verdicts are not shocking to this court," and upheld the jury verdicts.

Perhaps most interesting, the primary argument the defendant asserted in Norfolk Beverage, was that there was no evidence of a permanent injury. The Supreme Court found this argument unconvincing, yet this was the main reason that the Loudon County court cited when reducing the verdict.

New Law Requires Insurance Companies To Disclose Policy Limits In Motor Vehicle Accident Cases

sbucci@buccidix.com (Blog Author)10327 — Thu, 26 Mar 2009 08:00:00 EST

The legislature recently passed a law to require insurance companies to disclose the applicable policy limits when a request is made prior to litigation. Before this law was adopted, insurance companies were not required to diclose policy limits when a claim is made. Instead, an injured person would have to file a lawsuit, and conduct discovery to force policy limits to be disclosed.

Under the new law, an attorney or injured person must give written notice to the insurance carrier in a motor vehicle accident matter that requests that the policy limits be disclosed. The requesting party must provide facts of the car accident, including the date of the accident, the address of the party causing the accident, or a copy of the accident report. Most importantly, the requesting party must submit medical bills and/or lost wage information that show that the damages claimed equal or exceed $12,500. If these requirements are met, then the insurance company must disclose the policy limits within 30 days.

Also noteworthy, the fact that the insurance company discloses the limits does not mean that the insurance company admits that the insurance policy covers the accident, nor is the disclosure of the information admissible at a later trial.

Amanda Burke Promoted To Paralegal

Wed, 15 Apr 2009 08:00:00 EST

Amanda Burke was recently promoted to a paralegal position at the firm of Bucci & Dix. Amanda previously was the firm's receptionist and also performed legal secretary duties. Amanda is a graduate of the University of Richmond, and completed the Paralegal Certificate Program at Villanova University.

Hunter Jamerson Joins Bucci & Dix As An Associate

Wed, 15 Apr 2009 08:00:00 EST

Hunter Jamerson recently joined Bucci & Dix as an associate. Hunter will concentrate his practice on personal injury and labor and employment matters. Prior to joining the firm, Hunter was the law clerk to Judge Michael Allen of the Chesterfield County Circuit Court.