Attorney Blog

The Virginia General Assembly Needs to Adopt a Rules of Evidence

Thu, 12 Jan 2012 08:00:00 EST

As noted in our recent article, the General Assembly will take up a bill that establishes a Virginia Rules of Evidence. It’s about time. The law of evidence in Virginia is a mess.

The proposed rules walk a delicate balance between preserving the status quo on the actual substance of Virginia’s evidence law, and categorizing and organizing various evidence law principles in a cohesive way that mimics the organization of Federal Rules of Evidence.

So who would object to the Rules? Delegate Dave Albo has predicted that opposition to the proposed Rules will likely “come out of the woodwork.” My own sense is that objections will likely come from seasoned lawyers who resist change, because (a) they don’t want to have to relearn something that took years to ascertain, and (b) it isn’t fair that new lawyers get a clearer road map of Virginia evidence.

Let’s face it: because Virginia’s evidence law is so disorganized, it takes a long time and a lot of experience to get your arms around it. A particular principle of Virginia evidence law might be buried in Code Section 8.01, or mentioned in a Supreme Court case in 1983. It takes a lot of effort to simply figure out “what is the black letter law” on a particular issue. It would certainly be a legitimate concern to veteran trial lawyers if the new Rules were to usher in a new set of laws that would have to be relearned.

But the proposed Rules do not. In fact, the Code Commission went out its way to affirm that the Rules “are adopted to implement established principles under the common law and do not change any established case law rendered prior to the adoption of the Rules.” See Proposed Rule 2:103. Further, if a matter is not covered by the Rules, then the existing law remains in effect.

Moreover, the source notes from the Code Commission note that even though the proposed Rules follow the numbering system from the Federal Rules of Evidence, as is used in 42 other states, the numbering system is solely for convenience and “its use is not intended to make corresponding rules from other jurisdictions (and common law interpretations of them) applicable to these Virginia Rules of Evidence.” I anticipate that trial lawyers may refer to case law interpreting the Federal Rules of Evidence as persuasive to a Virginia judge, but good trial lawyers do that now anyways, and in any event such case law is not binding on a Virginia judge.

So the only other objection I can think of is that a veteran lawyer might not like that younger lawyers have an easier way to learn Virginia evidence law than they had to. My response to this is: quit being curmudgeonly.

Change is good. The General Assembly should adopt the proposed Rules of Evidence.

Bucci & Dix moves office to Robious Road

Tue, 15 Nov 2011 08:00:00 EST

The Richmond, Virginia personal injury law firm of Bucci & Dix has moved its offices from Midlothian Turnpike to 11449 Robious Road, Richmond, Virginia. The new office is located on Robious Road, east of Huguenaut Road but before Mall Drive. The new office is a 5,100 square foot building that contains 9 offices, 2 conference rooms, 3 bathrooms, a kitchen, and a production room. Please stop by and visit us!

Defamation With Draft Complaints

Fri, 03 Jun 2011 08:00:00 EST

Judge Ney’s recent decision, although helpful in clarifying a nagging legal question in Virginia, should not be regarded as an “all clear” for parties to transmit correspondence, especially draft complaints, for purposes of threatening suit unless a settlement is achieved, if such correspondence contains potentially defamatory statements. Where this arises most frequently, as in Mansfield, is in labor and employment matters, where draft complaints often contain boilerplate accusations that a party was motivated by bias on the basis of sex, race, or national origin. Attorneys often send such draft complaints, or “demand letters,” to the other side without first analyzing whether any statements they have made could constitute defamation. As Judge Ney noted, the Virginia Supreme Court has not taken up the issue of the privilege afforded pre-litigation statements so it remains an open question.

Until the law is more settled, it is wise not to send draft complaints in the business litigation context, particularly in the labor and employment realm. The same is true for divorce or child custody matters. (This is probably not a real concern in automobile accident or slip and fall matters). If a party is absolutely compelled to send a draft complaint, though, this decision teaches that it should be marked “for settlement purposes,” should only be published to the other side, should contain substantially the same allegations and counts as the complaint that is actually filed, and the actual complaint should be filed soon after the draft complaint is transmitted to the other side (assuming no settlement is achieved).

Walmart Verdict Should Give Pause

Fri, 03 Jun 2011 08:00:00 EST

The recent verdict returned by a Loudoun County jury against Walmart should give business owners pause. Claims of false imprisonment, defamation, and assault and battery are common premises liability causes of action particularly in the retail sector. Whether it be hypersensitivity of a post-9/11 world, a perceived increase in crime in America, or concerns related to the state of the economy, businesses are taking increasingly vigilant measures to prevent theft loss. However, in doing so, businesses need to ensure that they do not eliminate sound business judgment and good customer relations in favor of stricter theft loss prevention. Businesses should reserve heavy-handed theft loss prevention measures to only those cases where there is probable cause to believe shoplifting has occurred.

Judge Finds that Plaintiffs Must Plead Facts to Support Claim for Recklessness.

Wed, 04 May 2011 08:00:00 EST

A Fairfax judge ruled that two plaintiffs had failed to state facts that were sufficient in two routine negligent automobile accidents to support a claim for recklessness. Most automobile accident cases are negligence cases where a person failed to act as a reasonable person would have under the circumstances. Under these cases, a plaintiff is entitled to compensatory damages, or those designed to make the plaintiff whole. However, punitive damages, or those meant to punish the plaintiff, are available where a defendant acted recklessly or willfully and wantonly. However, under this ruling, a plaintiff could not bring a claim for recklessness if he does not plead what actions rose to this level of conduct. This is significant because a plaintiff may not have all of the facts regarding the defendant's behavior during the accident at the time he files a lawsuit and often learns more about a case during discovery.

Charlottesville Court Affirms Jury Verdict For Less Than Specials

Wed, 04 May 2011 08:00:00 EST

A court last month approved a jury verdict for less than the amount of Plaintiff's claimed medical damages. In the case of Anglin v. McCann, heard in the Charlottesville Circuit Court, the Plaintiff alleged medical damages of $1,171.60 stemming from a June, 2008 car accident. The jury, however, returned a verdict for the Plaintiff of a mere $1,000.

In ruling that the jury's verdict was sufficient, the Court pointed out that the amount of medical specials were disputed, with the Defendant only admitting to $104.00 of the Plaintiff's claim. The rest of the jury's award, the Court reasoned, could have been for pain, suffering, and inconvenience.

In Virginia, a verdict for the exact amount of a Plaintiff's claimed medical specials is improper. Somewhat paradoxically, however, a verdict above or below the amount of specials, when the amount is disputed, is proper. A verdict for the exact amount of medical specials is improper because the Plaintiff must be awarded something for pain, suffering, and inconvenience, over and above the amount of medical bills, under Virginia law.

The Collateral Source Rule

Wed, 04 May 2011 08:00:00 EST

The collateral source rule provides that a tort victim is entitled to recover from the wrongdoer the entire amount of his damages, regardless of whether he has already been compensated for those damages from another source, usually insurance. For example, in a car accident case, the injured party's medical bills are often paid by his health insurance. Notwithstanding this fact - which a jury is not allowed to know at trial - the victim may still recover again the entire amount of his medical bills from the wrongdoer, plus additional damages for pain and suffering. In other words, the law does not allow a defendant to reduce a verdict against him by the amount a plaintiff has already received for his injuries from his insurance company.

Thus, the plaintiff in many personal injury actions has a "double recovery" because his medical bills are paid by his health insurance, and he then recovers the entire amount of those medical bills again from the Defendant. The reason this happens is because a windfall is going to happen somewhere, and the law prefers that the victim receive the windfall, not the wrongdoer (and not private health insurance).

The collateral source rule is designed to balance two competing policies of tort law: 1) a plaintiff is entitled to compensation that makes him whole, but no more; and 2) a defendant is liable for all the damages he proximately causes. Acuar v. Letorneau, 260 Va. 180 (2000). When the victim of a car accident has private health insurance, either he will receive a double recovery or the wrongdoer will not be required to pay for the damages he has caused. Courts have resolved this conflict by allowing the plaintiff the double recovery, ensuring that those who commit a wrong are required to pay for it, and maintaining the deterrent effect such a rule creates.

Punitive Damages for Cell Phone Users

Mon, 02 May 2011 08:00:00 EST

As noted in our recent article regarding last year's collision between an automobile and a Chesterfield County fire engine, Virginia drivers continue to be distracted on an almost routine basis by their cell phones. Cell phones, along with DVD players, radios, food and beverages, have increased dramatically the number of distractions afforded drivers on the highways. Smart phones, which provide calendars, text messaging, and web browsing capabilities, are often the most notorious offenders. The National Highway Traffic Safety Administration has developed a website dedicated to the issue of distracted drivers. It is no wonder why at least two nearby jurisdictions, Maryland and the District of Columbia, have outlawed the use of cell phones without a Bluetooth or hands-free device. Virginia should likewise enact comprehensive legislation that penalizes drivers who use these devices without a hands free device and, in the most egregious cases, such as running into the back of a fully-illuminated fire engine, allows for punitive damages in a personal injury lawsuit.

An increase in Virginia General District Court limits is a good idea

Thu, 14 Apr 2011 08:00:00 EST

As noted in our article on the increase in Virginia General District Court jurisdictional limits, it appears likely that the legislature is going to approve an increase in the GDC limits from $15,000 to $25,000. This is a great move by the legislature for a number of reasons:

First and foremost, it will speed up access to the courts for many smaller claims. Most General District Court cases are tried within 3-4 months of filing, whereas a Circuit Court case usually takes at least a year to be tried. It simply doesn't make sense to have to wait so long to resolve what are relatively minor cases.

Second, it will cut down on litigation costs. It costs a lot more to try a case in Circuit Court, mostly because of deposition fees and expert fees. In General District Court, a plaintiff almost always introduces medical evidence by way of an affidavit from his or her doctor. In Circuit Court, a plaintiff does not have the ability to do this. Instead, a plaintiff has to pay to have a doctor testify at trial or by deposition, and this can easily cost thousands of dollars.

Finally, it will lessen the case load in Circuit Court. Virginia has a significant shortage of judges, in particular, Circuit Court judges. As a result, many Circuit Court judges simply have too many cases and are forced to set cases for trial far down the road. Further, it is often difficult to schedule critical pretrial motions for hearing because many Circuit Court judge's calendars are booked months in advance. Hopefully the change will lessen the case loads of Circuit Court judges so they can focus on the more significant cases that ought to be in Circuit Court.

And the bottom line is that anyone can appeal a decision they don't like to Circuit Court and retry the case "de novo," which means that it will be retried as if the General District Court case never occurred. So there may be some good points and bad points for each side, but at the end of the day anyone who feels that they received an unfair verdict will still enjoy a second bite at the apple.

The Case Of The Unexplained Accident

Tue, 15 Feb 2011 08:00:00 EST

Diane was walking down the sidewalk when she was suddenly struck by a heavy object and collapsed. She looked around and realized that she had been hit by a large crate filled with cheese flavored corn chips. The manufacturer of the chips, Lito-Fray, owns the factory adjacent to the sidewalk where Diane was struck. That factory is where the chips are bagged and placed in crates for shipment. No one saw where the crate came from, and no one can testify as to how it landed on Diane. Nevertheless, Diane is suing Lito-Fray for negligence, claiming that a worker at the factory must have caused her injury.

Diane asserts that she does not need any more proof to prove that someone at Lito-Fray was negligent. She points out that the crate of chips had to have come from the factory, and the only people in the factory are Lito-Fray workers. Since it is not normal for crates of chips to fall on the sidewalk, she concludes that someone in the factory must have done something wrong, and therefore Lito-Fray should be held responsible.

Lito-Fray claims that the mere occurrence of an accident does not mean that negligence occurred. Lito-Fray argues that more evidence is needed (an eye-witness, video footage, etc.) to prove negligence. Since Diane has no evidence other than that the accident happened, Lito-Fray concludes that it should not be held liable for her damages.

Who do you think should win?

This case is based off of the famous case of Byrne v. Boadle. In Byrne, the facts were almost identical except for the object that hit the passerby was a barrel of flour. The court started the opinion by acknowledging “that there are many accidents from which no presumption of negligence can arise.” However, it goes on to say that in certain cases, the accident alone is enough proof to recover on a suit for negligence. Those certain types of cases are those where the defendant has exclusive possession of the object, and the type of accident would ordinarily only happen if negligence were involved. The judge ruled in favor of the injured passerby, and in his opinion used the phrase res ipsa loquitur, the thing speaks for itself (i.e. the accident itself enough proof).

The Virginia Supreme Court, however, has noted that it looks with disfavor on the doctrine of res ipsa loquitur. Accordingly, this kind of a case would be very difficult to win in Virginia.

The Case Of The Egg Shell Skull

Tue, 15 Feb 2011 08:00:00 EST

One day Wes and his friends, 4th graders, were sitting after school waiting for a bus. They saw another boy, Emmet, walking home. The boys began to harass Emmet and shout insults. Wes, seeing a small pebble, thought it would be funny to throw the pebble at Emmet. Wes threw the pebble and it struck Emmet perfectly on the back of his head. Surprising everyone, Emmet staggered for a few steps and then fell. The boys ran over, saw that he was unconscious, and called for an ambulance. When he got to the hospital, the doctors discovered that Emmet had a rare medical condition that resulted in his skull being paper thin. The pebble had shattered much of his skull and caused permanent brain damage. Emmet’s family sued Wes for $1,000,000 because of the serious injury.

Wes claims that although he is responsible for part of the injuries, he should not be liable for the entire extent of the injuries. Rather, he should only pay for the damages that would occur if the pebble had hit an average person of Emmet’s age. He maintains that it is not fair for him to be punished for the fragile nature of Emmet’s skull, especially since Wes did not know of Emmet's condition, and Emmet had taken no precautions to protect his skull. Since the seriousness of the injury was completely unforeseeable, Wes concludes he should not have to pay the resulting costs.

Emmet’s family argues that Wes should be liable for all of the damages. Even though they are unexpected and abnormal, Wes is still the reason that the injury happened. He is going to have a damaged brain for the rest of his life because of Wes’s actions, and therefore the family contends that Wes should be the one to pay.

Do you think Wes should have to pay for all of the damages?

This case is based off of the famous case of Vosburg v. Putney, in which one boy playfully kicked the other in the shin. The kick aggravated a previous injury and resulted in the boy completely losing the function of his leg. The court determined that even when the extent of the damages far exceed what would be foreseeable, a party who acts intentionally is liable for those damages.

Do you agree with the court? Would it make a difference if the fragile person knew of the condition and failed to take necessary precautions?

The Case Of The Cancelled Football Game

Tue, 15 Feb 2011 08:00:00 EST

Bogart, excited about the start of the NFL season, bought tickets to the Washington Redskin's first game against the Dallas Cowboys. In addition to his tickets to the game, he also reserved a room for himself at a nearby hotel. The hotel owner, knowing the scarcity of available hotel rooms near game dates, charged Bogart twice the normal rate, and required a substantial down payment.

Unfortunately, a deranged fan named Ray tried to ruin the Redskins’ season by destroying their stadium, FedEx Field. Ray was unsuccessful in completely destroying the field, but did enough damage that the game against the Cowboys was moved to a different stadium. Since Bogart could no longer use the hotel room, he tried to get his money back from the owner. The owner refused, saying that Bogart had entered a contract to pay the money for the room, and could not back out now. Bogart sued to get his money returned.

Bogart admits that he entered a contract, but claims that the contract was only made because both he and the owner assumed that there would be a football game that weekend. He argues that since the contract was based on the assumption of a football game that is now not happening, the contract should be voidable, and he should get his money back.

The owner argues that the contract was not based on the assumption of the football game because neither he nor Bogart ever explicitly mentioned the game. Further, he points out that the room still has value even without the game, and if Bogart had wanted to condition his renting of the room on the occurrence of the football game, he should have said something about it when booking the room.

Should Bogart get his money back?

This scenario is based off the case Krell v. Henry, centered around a king’s parade. Krell’s apartment had windows overlooking the route of a parade for the king. He advertised the apartment specifically for the use of watching the parade. Henry saw the advertisement, wanted to see the parade, and rented Krell’s apartment to see the parade from the window. The king got sick, and the parade was cancelled. As a result, Henry refused to pay because he no longer had any reason to use the room.

The court said that in this case, it was very clear that the occurrence of the parade was a material part of the contract. The court said that if a contract is based on the occurrence of an event, and that event does not happen, the contract can be avoided. This has come to be known as the doctrine of Frustration of Purpose.

Do you think the Krell case and the football case are similar enough to be decided the same way? What should the court look at to determine if the event is material or not? Would it be different if the owner hadn’t charged double rates? What if the hotel advertised specifically to Redskins fans and was only open on game weekends?

Adultery: Clear and Convincing

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.

Police Offers Alleges Civil Rights Violation By Local Government Officials

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.

Medical Malpractice Suit Dismissed On Statute Of Limitations Grounds

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.

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

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.

Prison Guard's Sexual Harrasment Claim Dismissed

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.

Federal lawsuit filed by husband backfires in custody case

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.

Judges in the News

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.

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

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.

Premarital Agreement Possibly Void Because Unconscionable

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.

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

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.

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

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.

Bus Accident Leaves Child In Emergency Brain Surgery

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.

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

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

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.

Virginia Evidence Rules In Limbo

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.

Drunk Driving - Punitive Damages Verdict Upheld

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.

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

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

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.

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.

Qimonda plant to lay off 1,500 workers

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.

Car accident claims life of Henrico County resident

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.

Chesterfield J&DR Judge is Frontrunner for Circuit Court Seat

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.

Whistleblowers win partial victory

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.

Slip and Fall Injury Lawsuits Keep Theme Parks in Court

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.

$540,000 will settle NN police death suit

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.

$3.2 Million Verdict for Injured Shopper

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.

Hopewell Discrimination Lawsuit Settles

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.

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

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.

Lawsuit Against Deceased Defendant Cannot Be Amended

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.

Dealing With Brain Injuries

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.

Auto Accident Lawsuit Found To Be Timely Filed

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.

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

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.

Circuit Court Judge Orders Reduction Of Jury Verdict In Mold Case

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.