Digests of 2009 Virginia
Supreme Court Decisions

Johnston Memorial Hospital v. Bazemore, Admin. - Virginia Supreme Court - February 27, 2009

The plaintiff's husband died on March 14, 2005.  On March 9, 2007, she filed a complaint alleging medical malpractice in the death of her husband.  Although she filed suit as administrator of the estate, the plaintiff had not yet qualified as administrator on the day suit was filed.   She did not qualify as administrator until August 22, 2007.  The administrator then filed for a nonsuit. The defendants objected and argued that since the plaintiff had not yet qualified as administrator of her husband's estate when the suit was filed, the suit was a nullity. A nonsuit cannot be taken of a suit that was a nullity.  The trial court disagreed and granted the nonsuit, but the Virginia Supreme Court reversed.  The basic point is that a wrongful death suit can only be brought by a qualified administrator.  If the suit is not brought by a qualified administrator, it is a nullity and there is no valid action pending that can be nonsuited.

Kitt v. Crosby - Virginia Supreme Court - February 27, 2009

This case involved a suit for ejectment.  The dispute was over title to a piece of land.  The problem was that prior deeds and land descriptions were inadequate and surveyors disagreed as to the extent of the disputed property.

The point for us is the expert "side-switching" issue.  Appellee hired a surveyor several years before the current suit commenced. The surveyor researched the problem and prepared a plat. Appellee apparently discharged that expert and hired another.  Appellant called that expert as its witness.  The trial judge allowed the expert to testify as to factual matters but when the expert was asked about opinions the Appellee objected and the trial judge sustained the objection.  The Appellant assigned error to the failure of the trial judge to allow this person to testify as to his opinions.

In affirming the trial court the Virginia Supreme Court noted that the test of whether a side-switching expert can give opinions is given in Turner v. Thiel, 262 Va. 597, 553 S. E. 2d 765 (2001).   The first part of the test is whether the information sought constitutes expert opinion.  In this case the appellant told the trial court that his questions "might carry over from the area of fact into opinion." The trial judge, affirmed by the Virginia Supreme Court, held that appellant's statement as to what was going to be asked was sufficient to satisfy this first part of the test.  Once that is established there is a two part test.  First, whether the first party who hired him could reasonably conclude that a confidential relationship existed and did the first party disclose confidential information to the expert.  Basically the fact that the first party who hired the expert hired him in anticipation of litigation (a previous suit which was dismissed) and continued the relationship expecting a second suit and that there were significant discussions about the findings of the expert between the expert and the first party who hired him satisfied the two prongs of the Turner test. Therefore, the trial judge did not err in ruling that the expert could not testify as to his opinions.

Helton v. Glick Plumbing - Virginia Supreme Court - February 27, 2009

This is a "paid in full" case, involving a bill submitted by a plumber that the recipient thought was too high.  The recipient notified the plumber that the bill was too high and after some discussion sent a check for the amount he believed was fair with the notation "paid in full" on it and an accompanying letter indicating that the attached check was in full satisfaction of the debt.  The plumber crossed off the "paid in full" notation on the check and wrote "no" and "balance due $1,686.51" on the check.  The plumber then sued for the additional funds.  At trial the judge ruled for the plumber and awarded the damages claimed.

The Virginia Supreme Court reversed.  In order to prove an accord and satisfaction under the UCC as adopted in Virginia the moving party must prove (1) he in good faith tendered an instrument as full satisfaction; (2) the amount of the claim was in dispute; and(3) the claimant obtained payment of the instrument.  The UCC does not address the issue of whether a claimant may alter the instrument to reflect that he has refused the "paid in full" notation and is considering the amount tendered as payment on the account.  A majority of states, which Virginia now joins, hold that a claimant may not so alter the instrument, and if he cashes the check he will be bound by the "paid in full" designation.

Smith v. Kim - Virginia Supreme Court - April 12, 2009

This is a medical malpractice case that turns on whether a jury instruction was properly refused.  The facts are important.  The plaintiff went to the hospital with severe stomach pain.  He received several enemas and was scheduled for a colonoscopy, which was performed the next day.  This could not be completed because there was solid stool in his colon blocking the device.  Another colonoscopy was scheduled the next day and more preparatory fluid was administered.  During that second colonoscopy the plaintiff vomited and some of the material was aspirated into his lungs. The second colonoscopy was also not completed.  Noting a distended abdomen the doctor called in a surgeon who did an exploratory operation and removed part of his colon.  During the operation, partly as a result of the lung damage caused by the aspirated material, the plaintiff developed respiratory distress. Complications developed from the colon operation and three more surgeries were performed over a period of weeks.  The plaintiff eventually developed respiratory distress and died.  At trial the following instruction was offered by the plaintiff's administrator:

If you believe from the evidence that Mr. Sands Smith Jr., exercised ordinary care in selecting physicians for treatment of the injuries he sustained as a result of the colonoscopy performed on 02/04/04 and you further believe that Mr. Sands Smith Jr., sustained additional injuries, including death, as a result of such medical treatment, whether performed negligently or not, then you are instructed that the law considers the additional injuries, including death to be an aggravation that naturally flows from the original injuries, and the Plaintiff may recover for such aggravation from the person legally responsible for causing the original injuries.

The circuit court refused to give this instruction, and the verdict was for the defendant doctors. The plaintiff appealed. The Virginia Supreme Court noted that the instruction told the jury that "the law considers the additional injuries, including death to be an aggravation that naturally flows from the original injuries."  This language removed from the jury the question of whether the additional injuries were an aggravation or completely new injuries.  Since this issue of causation was a jury question, the instruction is not a correct statement of law and therefore properly refused by the trial judge.  The judgment below was affirmed.

Seh v. O'Donnell - Virginia Supreme Court - April 17, 2009

This case involves when a trial judge must excuse a juror for prejudice.

The case involved two homeowners suing a pool installer for breach of contract, including failure to properly install a pool.  Part of the evidence was that the pool liner that was installed was Brand B when Brand A was specified in the contract.  During voir dire the trial judge asked whether any of the jurors had been involved in the swimming pool industry and one juror responded that he had worked with his father-in-law during summers installing pools.  No further questions were asked of him and he was seated as a juror.

During opening statements the defense attorney informed the jurors that Brand A had been specified in the contract but that a liner of equal quality, Brand B, had been substituted.  The juror promptly informed the bailiff at the next break that he had heard his father-in-law comment that Brand B was inferior to Brand A and that therefore the juror thought that the defense attorney didn't know what he was talking about.  The juror was questioned by the judge and indicated that he would be fair and would rely only on the evidence produced at trial, but he also said that he would not be able to get out of his mind his father-in-law's statement.  The defendant asked that a substitute be brought in, but they had all been let go and this was not an option.  The defendant refused to go ahead with only six jurors.  The trial judge allowed the trial to proceed with that juror.  The jury returned a verdict for the plaintiff and the defendant appealed.

The Virginia Supreme Court reversed.  The Court stated that once a jury has been empanelled and the impartiality of a juror is brought into question it is an abuse of discretion to deny a motion for a mistrial if the proponent of the motion establishes the probability of prejudice about the fairness of the trial.

Seals v. Erie - Virginia Supreme Court - April 17, 2009

This is an insurance coverage case.  The plaintiff was test-driving a vehicle owned by an automobile dealership covered by its garage policy when he was seriously injured in an accident that was the fault of the other driver.  The other driver had an insurance policy that was insufficient to pay the claim. The plaintiff turned to the underinsured motorist's coverage of $500,000 on the automobile dealer's policy with Erie, who promptly denied coverage on grounds that the policy language clearly excluded the driver as covered.  A declaratory judgment action was brought and the trial judge ruled for Erie. The plaintiff appealed.

The Appellant argued that both the insurance policy and the UM statute require coverage, but the Virginia Supreme Court did not reach the merits of the statutory argument.  The policy's UM section stated that it agreed to pay "anyone we protect", which in turn meant anyone else "occupying a covered auto."  "Covered auto" was defined as one with respect to which the liability coverage applied.  All agreed to this point.  However, at this point the trial judge looked to the liability section of the policy to determine whether the liability coverage applied and determined that because of the exclusion there for customers that the plaintiff was not covered.  The Virginia Supreme Court held that this analysis was wrong, and that the proper analysis in deciding whether this was an automobile to which the liability coverage applied was to look to the "autos we insure" section of the policy, and there the autos covered included all owned vehicles, of which the subject vehicle was one.  Therefore the coverage applied.

James v. Peyton - Virginia Supreme Court - April 17, 2009

The plaintiff was involved in an automobile accident with another person and filed suit against them.  However, the defendant died from injuries sustained in the accident by the time the plaintiff filed suit.  The plaintiff discovered this and under a 1991 statute timely asked the trial court to amend the pleadings to reflect that the defendant was the "Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esquire."  The trial court obliged.  Note that this is not the usual way an estate is sued.  The standard way is to sue the administrator of the estate.  Indeed the statute allowing the late change, 8.01-229(B) (2) (b), states that the personal representative of the estate should be substituted.

The defense, a UM carrier which had been properly served with the pleadings, answered, and after the statue had run moved for summary judgment on the grounds that the wrong party had been sued. The defense further alleged that a suit against an estate is a nullity and that the administrator of the estate is the proper party.  The trial court originally agreed with the defense, but then on a motion for rehearing reversed itself and held that the caption, although not a model of clarity, did name the administrator rather than the estate as the defendant.  Under the interlocutory appeal statute the trial judge certified the question to the Virginia Supreme Court.

The plaintiff argued that he had properly named the defendant, but if not, then he had simply misnamed the party and the misnomer statute would allow him to amend.  In deciding this issue the Virginia Supreme Court noted that the entire pleading was reviewable to determine the actual party that the plaintiff had named.  The Court also noted that the pleadings were not a model of clarity and never really named the administrator as the defendant although the pleadings did note that he was appointed.  Most of the references to the defendant referred to the deceased driver himself rather than either the administrator or the estate.  The Virginia Supreme Court concluded that the caption meant what it said, that the plaintiff had sued the estate and the mention of the administrator was simply clarifying which estate rather than identifying the administrator as the defendant.  The Supreme Court refused to allow the misnomer statute to be applied because that statute applies when the correct party has been named but is merely misnamed. Here, the wrong party was named.  The Supreme Court reversed.

Whitehead v. Commonwealth of Virginia - Virginia Supreme Court - June 4, 2009

This is a criminal case where the defendant was charged with the receipt of stolen property.

The defendant lived with her boyfriend and their small child in an apartment.  They were listed as co-tenants of the apartment and both paid the rent from time to time.  The boyfriend broke into cars and stole items of value, which he brought back to the jointly occupied apartment.  Then the boyfriend sold the items and used the proceeds to support the family.  The defendant knew that the items brought into the jointly occupied apartment were stolen and that the proceeds were being used to support the family.  Acting on a tip, the police broke into the apartment and discovered the stolen items and charged the boyfriend with theft, which he later pled guilty to, and charged the defendant girlfriend with 32 counts of receiving stolen property.  The Commonwealth never argued at trial that the defendant girlfriend actually stole the items or physically received stolen property. The theory was that she knowingly received the proceeds of the sale of stolen property for her personal benefit.  The trial court found this was sufficient and the Court of Appeals affirmed.

The Virginia Supreme Court reversed.  The Court said that the Virginia statute, which makes it a crime to "buy or receive from another person...any stolen goods or other thing", does not include benefitting from the proceeds of the stolen property without actually receiving the stolen property.  The Commonwealth argued constructive possession for the first time on appeal, which the Court declined to consider for that reason. While the Court stated that it may uphold a result where the trial judge is right for the wrong reason, the "right" reason must also have been presented to the trial judge.  Here this was not the case.  The Supreme Court also declined to consider the argument that the girlfriend defendant aided in the concealment of stolen property because that argument also was not made to the trial court.

Fultz v. Delhaize America - Virginia Supreme Court - June 4, 2009

This is a slip and fall case where the trial judge held that the plaintiff was contributorily negligent as a matter of law on motion for summary judgment

The plaintiff was a customer at Food Lion and was approaching an ATM inside the store.  There were two bars, one on either side of the ATM that apparently protected the ATM from shopping carts.  The bars were parallel to the sides of the ATM, 4 inches from the sides, and extended out three feet past the front of the ATM.  The bars were 2-5 inches in diameter, of a dark color (the floor was light colored) and were bolted about five inches off the floor.  To approach the ATM from the side one would have to step over one of the bars.  However, to approach the ATM from the front one would walk between them.  The plaintiff apparently approached the ATM safely but as she was using the machine one of her grandchildren distracted her and she turned to deal with the issue and tripped over one of the bars.  She suffered a significant elbow injury.

The trial court granted summary judgment on the grounds that the bars were open and obvious; therefore, the plaintiff was contributorily negligent as a matter of law.  The Virginia Supreme Court reversed.  The Court first noted that the general rule is that if there is any doubt about whether to grant summary judgment it should not be granted during the trial so that a verdict can be rendered and the issue finally resolved on appeal if necessary.  Secondly, assuming that the bars were open and obvious, the plaintiff alleged that she was distracted and thus not contributorily negligent.  When alleging distraction a simple allegation is not enough.  The plaintiff must show that the distraction was unexpected and substantial.  Here the Supreme Court held that the concentration required to operate an ATM and the sudden movement while she was doing that caused by her grandchild raised a sufficient issue for the jury.

The court reversed and remanded for a trial.

Virginia Farm Bureau v. Williams - Virginia Supreme Court - June 4, 2009

This is a UIM stacking case.

The plaintiff was a passenger in a vehicle that was involved in an automobile accident.  She was severely injured and the coverage of the vehicles involved was inadequate.  The plaintiff, however, was an insured of the first class under her father's automobile insured by Virginia Farm Bureau which covered three cars on the same policy.  The plaintiff attempted to stack the three vehicles on that policy.

In its UM/UIM section, the Farm Bureau policy contained a section entitled "Schedule Limit of Liability," which instead of a number next to the phrase "each person," contained the phrase "See Declarations."  On the declaration page the three cars were listed with three separate premiums.  Two of the coverage limits on that page were 300/500 and one was for 250/500.  Following the Schedule Limit of Liability language was the standard Goodville Mutual language which states that regardless of the number of motor vehicles to which the policy applied that the limit of liability would be the stated limit of liability for "each person."    Therefore, the Goodville Mutual language referred back to the "each person" clause which then referred to the declarations page that listed the three vehicles with separate coverages.  Farm Bureau argued that it was ambiguous whether the correct per person limit was 250/500 or 300/500 and agreed to pay the higher limit.  The plaintiff argued that in referring back to a declarations page listing three different cars with at least two different coverage limits the insurance company had sufficiently confused the matter so that stacking was allowed.  Note that in Goodville Mutual the Virginia Supreme Court had stated that stacking would exist unless the policy by clear and unambiguous language excluded it.  Here the Virginia Supreme Court agreed with the plaintiff that the language was ambiguous and therefore stacking was allowed.  The UM/UIM coverage would be $850,000 (300+300+250).

Williams v. Joynes - Virginia Supreme Court - June 4, 2009

This is a legal malpractice case involving the statute of limitations.  The plaintiff was driving his vehicle in Fairfax County when he came to a red light and stopped.  A truck driven by a Maryland defendant struck the car behind the plaintiff's and pushed that car into the plaintiff's vehicle.  The middle car was driven by a Virginia resident.  The plaintiff obtained the services of the Joynes and Gaides law firm five months after the accident.  Two years and three weeks after the accident that law firm filed suit in Virginia Beach against both drivers.  Two months later the law firm informed the plaintiff that the lawsuit had not been timely filed in Virginia but that if he sought the services of an attorney in Maryland that the case against the Maryland defendant might be still actionable because Maryland has a three year statute of limitations.  The plaintiff alleged that he spent several months trying to hire a Maryland attorney but was rejected by several Maryland attorneys because they did not want to try a case with two defendants only one of which could be sued, that several of the witnesses were in Virginia and not subject to subpoena, and that the medical providers were also in Virginia requiring considerable expense to get them to court.  After been rebuffed in his attempts to hire Maryland counsel the plaintiff filed a malpractice action against Joynes and Gaides.

The law firm filed a motion for summary judgment on the grounds that the failure of the plaintiff to file an action in Maryland was a superseding cause that severed any connection between the negligence of the law firm and the damages suffered by the plaintiff.  The trial court granted the motion, and the plaintiff appealed.

The Virginia Supreme Court reversed.  A superseding cause must "sever any connection between the negligent act and the loss claimed."  Here the Supreme Court noted that it was the law firm's negligent act that caused the need for the plaintiff even to consider the Maryland action.  The Court also noted that one of the two defendants could not be sued in the Maryland action.  Therefore the trial court erred and the matter was reversed for trial.  Note that the issue of failure to mitigate damages was still a live issue not having been considered by the trial court below as part of its ruling.

Howell v. Sobhan - Virginia Supreme Court - September 18, 2009

This is a medical malpractice case where the only issue discussed is proximate cause.  The trial judge, at the end of the trial, ruled that the plaintiff had not proven proximate cause and struck the evidence.

The plaintiff underwent a routine colonoscopy.  Three polyps were discovered and one was removed during the procedure.  Because of their size and location the other two could not be removed and the doctor referred the plaintiff to a different surgeon for an open abdominal operation to remove those two polyps.  That surgeon removed virtually the entire colon even though the polyps proved to be non-cancerous.  The place where he joined the small intestine to the rectum leaked and had to be operated on twice subsequently to close the loop.  As a result, the plaintiff suffered from the need for the two additional surgeries but also had a permanent problem.  The removal of the entire colon resulted in permanent diarrhea and blood chemistry imbalances.

The plaintiff's witnesses agreed with the defense witnesses that the failure of the attachment was one of the risks of surgery that can happen in the absence of negligence.  However, the plaintiff's witnesses also stated that the entire colon did not need to be removed, and if only the diseased part had been removed the plaintiff would have had a 95% chance of resuming normal bowel function, although it was possible that the permanent diarrhea would have occurred anyway.  They also testified that removing the entire colon rather than only a part made the reattachment "slightly" more difficult, thus increasing the chance of a failed reattachment.

The trial judge noted that permanent diarrhea might occur in any case and the removal of the entire colon was not necessarily the proximate cause of that problem.  The Virginia Supreme Court reversed, noting both the 95% chance of resuming normal bowel function as opposed to zero and the slightly increased chance reattachment failure as issues that the jury should have been allowed to consider.

Graham v. Cook - Virginia Supreme Court - September 18, 2009

This is a medical malpractice action with several expert witness evidentiary rulings.

The plaintiff fell from a roof and damaged his hip.  At first it was diagnosed as a sprain, but a month after the accident a different doctor, the defendant, took x-rays and discovered a fracture of the left hip socket and recommended surgery, which he performed.  The plaintiff still complained of pain and the defendant surgeon felt that the problem was either that a screw placed in at surgery had entered into the joint space and was eroding the femoral head or that the plaintiff was developing avascular necrosis.  The plaintiff sought several second opinions and eventually another surgeon operated to remove a screw.  The plaintiff had another surgery some seven months later to resurface the femoral head.  The plaintiff sued alleging that the screw was negligently placed and that it caused the erosion of the femoral head which caused the need for additional surgeries and permanent damage.

At trial the defendant doctor called by deposition several of the plaintiff's treating physicians.  One testified, from his reports, as follows:

1.      I did not see any gouging of the femoral head from any hardware

2.      There was a large area of collapse of the femoral head

3.      The plaintiff clearly had Stage III avascular necrosis.

The statute, 8.01-399(B), which allows the testimony of a treating physician, allows "diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plans" to be revealed if, as here, they were contemporaneously recorded.  In addition, diagnoses cannot be admitted unless held to a "reasonable degree of medical probability."

The trial court admitted all three statements into evidence.  The Virginia Supreme Court affirmed, noting that the first two came under the signs and symptoms and observations section.  The third statement was clearly a diagnosis, and consequently had to be qualified to a "reasonable degree of medical probability."  At the start of the deposition the defense counsel had asked the doctor to give opinions only if they were that degree of reasonable medical probability and the doctor affirmed that he understood.  The plaintiff's argued that this wasn't sufficient.  The Virginia Supreme Court never reached that issue because the plaintiff's lawyer failed to make the appropriate objection at the time of the deposition.  Objections as to the form of the question are waived unless made contemporaneously, and that was not done here.

Two of the plaintiff's treating radiologists were called and in addition to some clearly factual matters testified that their contemporaneous notes stated that there was "a possibility of avascular necrosis" and "avascular necrosis cannot be excluded."  The Virginia Supreme Court held that these also were factual matters properly admitted by the trial judge under the statute.

One of the radiologists indicated that it was his habit and routine to look for any metallic problems such as a screw and the fact that he had not noted any problem in his report meant that the screw was not apparent.  The plaintiff's lawyer challenged this use of habit testimony at trial.  The trial judge indicated that he was going to let the whole argument come in about habit and that the plaintiff's lawyer could cross examine the radiologist on the habit issue and the plaintiff's lawyer said "I don't have a problem with that" and thereby, in the opinion of the Virginia Supreme Court, abandoned the objection.

The plaintiff's lawyer was prevented, over objection, by the trial judge, from cross examining the radiologist on the issue of whether a certain CT scan showed the screw or not.  The Virginia Supreme Court refused to consider the point because the lawyer did not proffer what he expected the witness to answer.

Finally the plaintiff's lawyer argued that he had been unfairly limited in his closing argument.  There were several x-rays in evidence and he invited the jury to examine the x-rays and measure the growth of the defect in the femoral head.  The defendant objected saying that this could not be done because the x-rays were of different magnifications and this required expert testimony.  The trial judge sustained the objection and the Virginia Supreme Court upheld the trial judge, noting that such rulings are within the discretion of the trial judge and that in this case expert testimony concerning magnification and angle was required.

The verdict for the defendant was affirmed.

Whitehead v. Commonwealth - Virginia Supreme Court - September 18, 2009

This is a criminal case involving the Fourth Amendment and searches.

The plaintiff was a passenger in a car that was stopped for a traffic violation.  While the car was stopped a member of the police drug enforcement team drove up with his drug detection dog.  Without any objection the dog walked around the outside of the vehicle and alerted that drugs were present.  The traffic officer had the four persons occupying the vehicle exit the vehicle and searched the car and found nothing.  The officer then searched the other three occupants of the vehicle and also found nothing.  The officer then searched the defendant and found heroin. The defendant was arrested for possession of a controlled substance.  After defendant's motion to suppress was denied, he made a conditional guilty plea, reserving the right to appeal the denial of the motion to suppress, and was sentenced to five years with three suspended.

On appeal, the defendant did not challenge the right to search the car once the drug dog alerted that drugs were present.  His objection was to the search of the individual outside of the car.  The Commonwealth argued that there was probable cause to believe that there were drugs in the car. Once the car had been emptied and the other three individuals had been searched and no drugs were found, it was logical to assume that the drugs were on the person of the only other person who had been in the vehicle.  However, at the hearing, the drug enforcement officer testified that the dog's alerting on the car did not mean that drugs were currently in the car.  Sometimes the dog will alert to an "old odor," indicating that drugs had once been in the car.  With this evidence, the Virginia Supreme Court held that even though the dog had alerted on the car with its occupants and the car had been searched and all the other occupants had been searched and no drugs had been found, that this did not mean that there was particularized probable cause to believe that the defendant possessed drugs.  It was just as logical that the dog was alerting on an old odor.  The Court reversed.

City of Norfolk v. Lummis Gin Company - Virginia Supreme Court - September 18, 2009

This is a tax case that involves a final order and the nonsuit statute.

The plaintiff here is the City of Suffolk which filed against the defendant for back taxes.  By order dated February 12, 2008, the City took a nonsuit.  The order granting the nonsuit further provided that "this suit shall remain on the docket for the Court to determine issues concerning attorney fees, costs and expenses incurred by the [defendant]."  The issues concerned whether this was a first or second nonsuit, and if it was a second nonsuit, whether fees and expenses should be awarded against the City.  The Court heard argument on the issues in August, some six months after the nonsuit was taken, and decided that this was indeed a second nonsuit.  The Court ordered attorney fees and costs against the City in the amount of $1,100.

The Virginia Supreme Court reversed, holding that this was a first nonsuit.  In the process, it reviewed the finality of the February 12, 2009 order.  The Supreme Court stated that a nonsuit is a final order and that therefore the trial court loses jurisdiction unless that order is "modified, vacated or suspended" within 21 days.  A statement such as the one made here that the case shall remain on the docket pending certain issues does not extend the 21 day period.  Since the trial court failed to modify, vacate, or suspend its final order, the court could not make any further rulings, including whether there should or should not be attorney's fees, after the 21 days had expired.

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