2011 Virginia Supreme Court Decisions

Vuich v. Great Eastern Resort - Virginia Supreme Court - January 13, 2011

This case involves whether a snow tubing ride at Massanutten is subject to the provisions of the Virginia Amusement Device Regulations.

The plaintiff went to Massanutten, a snow and ski resort, and chose to ride the snow tubes.  These are apparently big special inner tubes that one sits in and rides down a heavily contoured slope, a chute, to the bottom.  At the bottom, rubber mats are supposed to slow the tube. As a back-up, there is a blue wall lined with stadium padding to stop a snow tuber as a last resort.  The plaintiff rode the tube to the bottom and the rubber mats did not sufficiently slow her. She crashed into the blue wall at high speed and suffered severe spinal injuries.

Suit was filed and one of the counts alleged that the snow tube ride was subject to the Virginia Amusement Device Regulations.  These regulate, among other things, "a device or structure open to the public by which persons are conveyed or moved in an unusual manner for diversion..."  If the VADR apply then the defendant would find itself subject to the regulations which include, for example, a section that requires "the unloading area of the ride shall be designed and constructed to bring riders and carriers to a safe stop without any action by the rider."  In others words, much more than just general negligence standards would apply.

The trial judge, Judge Hogshire, ruled that the snow tube was not a "device or structure" which he analogized to a building.  However, he realized this was an important issue and so authorized an interlocutory appeal on that issue alone.

The Virginia Supreme Court reversed.  The Court felt that the significant modification of the mountain to provide chutes for the tubes plus the run out pad and the blue wall were sufficient for the ride to be considered a "structure."  Hence, the VADR applied.

Addison, Administrator v. Jurgelsky - Virginia Supreme Court - January 13, 2011

This is a medical malpractice case which involves whether one of two co-administrators can file an action.

The plaintiff died at Clinch Valley Medical Center on April 3, 2004.  Two weeks before the statute of limitations ran out, on March 21, 2006, one of the two co-administrators filed a wrongful death complaint.  The defendants filed a motion to abate because only one of the two administrators had filed the action.  The Circuit Court Judge denied the motion and granted the plaintiffs time to amend, and they did so by joining the other co-administrator as a party.  Note this action was taken well after the two year statute had run. The defendants filed a motion to dismiss on grounds of the statute of limitation arguing that the action filed by one of two co-administrators is a nullity and therefore the statute had not been tolled.  The trial court granted this motion to dismiss and this appeal followed.

The Virginia Supreme Court agreed that a single co-administrator may not maintain a wrongful death action.  The Supreme Court then considered whether the other co-administrator could be added after the statute of limitations had passed.  The Court relied on the misjoinder statute which allows parties to be added as the ends of justice may require.  Since the defendant had been put on notice of the suit before the statute of limitations had run, the reason for the statute of limitations, to prevent stale claims, was not implicated.  Therefore the ends of justice allowed the joinder of the other co-administrator.  The decision of the trial court was reversed.

Royal Indemnity Company v. Tyco - Virginia Supreme Court - January 13, 2011

This is a property damage products liability case concerning whether exterior sprinkler heads are "equipment" and thereby do not fall within the five year statute of repose or are ordinary building materials which do fall within the statute of repose.

The underlying case concerns a fire which broke out on a balcony of an apartment building.  The exterior sidewall sprinkler heads failed to activate and the fire spread, which caused significant additional property damage.  A $10,000,000 action was filed by the property insurance company against the manufacturer of the sprinkler heads and the installer, among others.  The manufacturer defended in part by arguing that the five year statute of repose applied and barred the action.  The manufacturer argued that the sprinkler heads were ordinary building materials and therefore within the statute of repose.  The insurance company argued that the sprinkler heads were equipment and therefore not covered by the statute of repose.  The trial judge ruled in favor of the manufacturer that the sprinkler heads were ordinary building materials and therefore the statute of repose applied.

On appeal, the Virginia Supreme Court noted that the statute of repose, § 8.01-250, does establish a five year statute beyond which actions cannot be brought for defective and unsafe improvements to real property but that there is an exception for "equipment or machinery" installed in the structure.  The Court reviewed several prior decisions discussing the line between equipment and ordinary building materials and reversed the circuit court's ruling that the sprinkler heads were not equipment.  The Supreme Court noted that the heads were not essential structural components, are not functional components, and serve a purpose unrelated to the construction of the building.  It is a discrete enclosed mechanism assembled by the manufacturer and installed by a specialized professional.  The sprinkler heads also were subject to close quality control by the manufacturer at the plant.

As part of the decision, the Court noted that the equipment exception to the statute of repose only applies to a manufacturer and supplier, but not a mere installer.  Accordingly, the installer of the sprinklers did get the benefit of the statute of repose.

In addition to the negligence claim, the plaintiff alleged breach of warranty.  This carries a four year statute of limitations from delivery. There is an exception to the four year rule when a warranty of future performance is made.  The manufacturer had contained within its written materials a description of how the sprinklers were expected to operate.  The Virginia Supreme Court held that this was not a warranty of future performance and therefore did not extend the four year statute for breach of warranty.

Therefore, the Virginia Supreme Court reversed in part and sent the case back to the circuit court to address the negligence claims against the manufacturer.

CNH America v. Smith - Virginia Supreme Court - January 13, 2011

This case involves expert testimony in a products liability case.

The plaintiff was a 72 year old farmer.  He had recently purchased a New Holland disc mower.  His son was having some difficulty with it and asked for help.  As the plaintiff approached the mower, a hose filled with hydraulic fluid exploded and forced hydraulic fluid into his hand.  The plaintiff had his hand partially amputated, incurring $72,000 in medical bills.  He brought suit against the manufacturer, among others, New Holland.

At trial, over the objection of the defense, the plaintiff called two experts to testify as to the defect that caused the explosion and the injury.  The trial judge allowed the experts to testify and the jury returned a verdict of $1,750,000.  The defense appealed on the grounds that the trial court erred in allowing the plaintiff's expert witnesses to testify.

The plaintiff's first expert testified that the hose failed because it had a manufacturing defect called a "tight carrier" that caused it to curl under pressure and fail.  He also said that there were three tests that could be done to help identify this defect, but he admitted that he performed none of those.  He did perform an optical examination with a light scope and found nothing.  However, he still testified that the defect must have existed because the hose failed when the mower was quite young.  The Virginia Supreme Court said allowing him to testify as such was error, as the foundation was inadequate.  It is insufficient for the expert to rely on the mere failure of the hose as the sole reason to believe that there was a particular manufacturing defect.

The second expert was an expert in hydraulics, but in a related field, mining, rather than farming.  In response to a motion in limine, the trial judge ordered his testimony to be limited to general principles of hydraulics. However, at trial, he testified about the specific hose and stated that there was a specific defect.  On cross examination, he admitted that he was not qualified to testify about the specific hose.  The Supreme Court reversed and held that the trial judge erred in allowing him to testify beyond general principles.

Since both of the plaintiff's experts should not have been allowed to testify, the case was reversed for a new trial on all issues.

Simms v. Ruby Tuesday - Virginia Supreme Court - January 13, 2011

This case involves the "innocent victim of horseplay" rule in worker's compensation cases.

The history here is that for many years workers lost cases because of contributory negligence, assumption of the risk, the fellow servant rule, etc.  In response, the Virginia legislature and others adopted worker's compensation laws.  After the adoption of these laws the courts had to decide whether when an innocent employee injured by horseplay of other employees can recover.  At first, most courts refused to allow recovery, arguing that these injuries were outside the scope of employment.  Cooler heads soon prevailed, and almost all state courts adopted some form of the "innocent victim of horseplay" doctrine, which establishes that an innocent non-participating employee may recover from injuries inflicted by others involved in horseplay.  The Virginia Court of Appeals and the Commission accepted this majority rule and awarded compensation in numerous cases.

In 2008, the Virginia Supreme Court issued a ruling in Hilton v. Martin that arguably called into question the validity of the "innocent victim of horseplay" doctrine.  In Hilton, an employee of an ambulance company riding in an ambulance used a cardiac defibrillator to shock a co-worker, which resulted in her death.  The court in Hilton said that Workers' Compensation Act did not apply because the attack was an assault that was personal to the employee and not directed against her as an employee or because of her employment.

In this case, the plaintiff was working at a Ruby Tuesday's when his co-workers started throwing ice at him.  He raised his left arm to defend himself and dislocated his shoulder.  He had a pre -existing condition and had dislocated it before.  However, the Commission and later the Court of Appeals refused to grant him any compensation because they believed that the Hilton case had rejected the "innocent victim of horseplay" doctrine.  The Virginia Supreme Court noted that in Hilton it had not addressed the "innocent victim of horseplay" doctrine.  Accordingly, the Court affirmed that doctrine and distinguished Hilton by noting that Hilton involved an assault and not mere horseplay.  Therefore the Supreme Court reversed and held that workers' compensation did apply in this case.

There was a concurring opinion that tried to further distinguish the cases by saying that an assault that takes the case out of workers' compensation must be rude, insolent, angry, harmful or offensive rather than merely playful.

O'Conner v. Tice - Virginia Supreme Court - January 13, 2011

This is a malicious prosecution case where the jury found for the plaintiff and the defendant appealed.

The plaintiff was a contractor who was hired to do some painting on the outside of a restaurant.  The plaintiff contractor received a one-third deposit and started to paint the building.  The defendant restaurant owner felt that the plaintiff's crew was doing a bad job and, after several angry incidents, threw the painters off the premises.  The plaintiff felt that this was unfair and that he was wrongfully fired.  The plaintiff also felt that a significant amount of the work had been completed at the time he was fired and he refused to return the deposit, reasoning that he had earned it.  The defendant filed suit to get his deposit back.

In order to get a correct address to have the painter served, the defendant went to the local sheriff's office.  There he obtained the correct address and, in discussing the issue with a sheriff's deputy, was advised that there might be a criminal action for construction fraud.  Defendant apparently failed to inform the sheriff's deputy that the painter had started the project and partially completed it.  The matter was then taken to the Commonwealth's Attorney who filed a criminal case for construction fraud.  At trial, the defense made a motion to strike at the end of the Commonwealth's case, which was granted.  Afterwards, the painter filed a malicious prosecution suit.  The jury found for the plaintiff and the defendant restaurant owner appealed.

Malicious prosecution requires that the prosecution be (1) malicious; (2) instituted by the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff.  (1) and (4) were not argued on appeal.  With respect to (2), the evidence showed that the defendant did more than simply provide evidence to the sheriff. Defendant wrote a letter threatening criminal prosecution and strongly encouraged the sheriff to proceed.  This was enough to establish a jury question on the issue.

The key point was probable cause.  The defense argued that since the sheriff and the Commonwealth's attorney had proceeded with the case there must have been probable cause.  However, all the important facts had not been given to law enforcement.  The defendant neglected to tell the sheriff and the Commonwealth's attorney that the plaintiff painter had actually started the work and completed a significant part of it before being fired.  In order to prove construction fraud, the intent to defraud must exist at the time the money was received.  The fact that the plaintiff painter bought materials and began the work and actually completed a significant portion of it indicates that such intent did not exist. As such, probable cause did not exist.  Failing to reveal these facts to law enforcement eliminates any defense sounding like right to counsel.

The $200,000 verdict was affirmed.

Isle of Wight County v. Nogiec - Supreme Court of Virginia - January 13, 2011

This is a breach of contract and defamation case with several points of interest.

The facts are that the plaintiff was the director of the Isle of Wight Parks and Recreation Department.  There was a flood that severely damaged the County Museum, one of the facilities that the plaintiff oversaw.  Before the flood, plaintiff's employees provided him written notice that flooding was a distinct possibility and that something should be done to fix the potential problem.  The plaintiff failed to heed this warning. The plaintiff was placed on administrative leave after the flood damage and then decided to take early retirement.  As part of his agreement to retire from the County, there was a provision that neither the County nor the plaintiff would make disparaging remarks about the other.  Shortly afterwards, at a Board of Supervisors Meeting, the Assistant Administrator reported to the Board that the plaintiff's inaction "bordered on negligence," among other things.  This quote was picked up by the local paper and printed on the front page. As a result the plaintiff said that he was unable to find another job.

The plaintiff sued the County for breach of contract and the Assistant Administrator for defamation.  The jury awarded the plaintiff $45,000 on the breach of contract claim and $50,000 in compensatory damages and $100,000 in punitive damages on the defamation claim against the Assistant Administrator.  Both appealed.

The first issue is damages.  The plaintiff testified that he believed that the negative publicity made it impossible for him to find a job.  He looked for work for two months and sent out many resumes but obtained no job interviews.  The Virginia Supreme Court, reversing the trial judge, held that this was not sufficient evidence of damages to prove his breach of contract case.   When one is unemployed and his ability to get a job is hindered or made impossible by an injury, the necessary proof requires him to furnish a person who says that he would have hired him at a particular salary but for the injury.

Secondly, the Supreme Court reaffirmed its rule that in a breach of contract action tort damages cannot be obtained.  Accordingly, the verdict against the County was reversed.

Thirdly, the Supreme Court discussed the legislative privilege exception to the law of defamation.  When it applies, it is an absolute privilege.  The Court held that if this privilege extends to lower bodies, such as Boards of Supervisors, it would only apply when they are in legislative mode.  In this case the Board was acting in its supervisory or administrative mode and so the privilege, if it existed, was a qualified privilege which can be overcome by a showing of malice.  The trial court appropriately instructed the jury on malice, so the defamation verdict against the Assistant Administrator was affirmed.

Farmers Insurance Exchange v. Enterprise Leasing Co. - Virginia Supreme Court - April 21, 2011

The driver in this case rented a car from Enterprise Rent-A-Car to replace his usual car which was being repaired due to an accident.  As such the rental vehicle was included under the definition of  "owned automobile" in his insurance policy which includes a temporary substitute vehicle while the owned vehicle is under repair.  Thus he was covered for liability by his own automobile insurance, Farmers.  The driver refused the optional supplemental liability insurance riders that were offered with the rental from Enterprise.

The driver was in another automobile accident while driving the Enterprise rental car and he was apparently the one at fault.  The case brought against him was for property damage only and the other car was damaged, stipulated, in the amount of $5,000.34.

Enterprise, which was self-insured, paid the $5,000.34 and, under the terms of the rental contract, demanded that the driver indemnify Enterprise for the amount it had paid out in damages.  There is a provision in the Enterprise contract which requires the driver to reimburse Enterprise for any funds that Enterprise must pay as the result of the driver's negligence.  The driver refused to pay Enterprise.

Farmers then filed a declaratory judgment action to determine whether Enterprise had the right to get its money back from the driver and whether Farmers, the driver's insurance, had to be responsible for the funds as the driver's insurer.

The circuit court held that Enterprise was entitled to be reimbursed by the driver and that Farmers, the driver's insurance company, was required to cover the driver despite an "other insurance" clause which attempted to make Farmers excess to any other collectible insurance.

The Virginia Supreme Court affirmed the circuit court.  The Supreme Court noted that a previous decision, (USAA Cas. Ins. Co. v. Hertz, 265 Va. 450, 578 S.E.2d 775 (2003), required self-insured rental companies to provide primary coverage for their renters.  Enterprise here provided that by promptly paying for the property damage that it's renter caused.  However there was an indemnification clause that was part of the Enterprise rental contract and the Supreme Court held that this was a valid clause not against public policy.  Note that with respect to insurance contracts there is a statutory prohibition against subrogation.  However the Supreme Court held that this did not apply to self-insurers like Enterprise here.  Note that if the driver had wanted insurance he could have purchased it as part of the rental agreement.  By so purchasing he would have received full insurance protection from a third company and would not have been subject to the indemnification clause.  But here the driver expressly rejected the additional insurance protection.  In addition the Virginia Supreme Court held that self-insurance is not "collectible insurance" as defined in the Farmers "other insurance" clause because it is not insurance, and therefore Farmers will have cover its insured, the driver, and pay the bill.

Chalifoux v. Radiology Associates - Virginia Supreme Court - April 21, 2011

This case discusses the continuing treatment rule with respect to radiologists.

The plaintiff/patient complained of severe pain in the right side of her face.  She was sent for an MRI which she received 12/23/2002.  The MRI report indicated nothing amiss.  She continued to complain and was sent back for MRI's on 3/9/03, 8/2/03, 2/16/04, and 10/22/05.  The radiologist on the last MRI reported that it showed an abnormality which was identified as a tumor in the trigeminal region of her brain.  The radiologist (Dr. Kuta) reviewed the prior MRI's and stated that it existed and was visible on all the scans including the first MRI in 2002.  The plaintiff filed suit on 10/12/2007 alleging malpractice in the failure to properly read the MRIs and discover the tumor earlier.  This was just under two years from the last MRI, the one which identified the tumor.  Note that there was no negligence associated with that 10/22/05 MRI or its associated report three days later.

The defendant doctors argued that the two year statute of limitations had run.  The last alleged negligent act, the taking and reading of the 2/16/04 MRI, occurred more than two years before the suit was filed.  Although the last visit to the radiologist doctors was 10/22/05, just less than two years from the filing of the suit, that reading was not negligent.  Therefore the statute had run.

The plaintiff argued that the continuing treatment rule applied to toll the statute of limitations.  They argued that the course of examinations over several years was a continuing course of treatment and under the continuing treatment rule the statute did not begin to run until the last treatment, 10/25/05, and suit was filed within two years of that date.

The question was whether the radiological treatment was a series of isolated episodic events, each standing on its own, or each MRI was part of a continuing course of treatment.  The Virginia Supreme Court stated that in its opinion the several MRI's and reports rendered by the radiologists constituted a continuing course of treatment and therefore the statute did not begin to run until the end of the last treatment, even though that particular treatment did not encompass any negligence.  Two justices dissented.

Volpe v. City of Lexington - Virginia Supreme Court - April 21, 2011

This is the City of Lexington drowning case.

The plaintiff, apparently a child whose age is not given, went swimming during a visit to a riverside park owned by the City of Lexington.  The Maury River ran through the park and a low head dam, The Jordan's Point Dam, existed on the river.  A low head dam is one where the water flows over the dam by design.  (I believe Bosher's Dam in Richmond is an example of a low head dam).  A low head dam is dangerous because as the water level rises, the water on the top still can appear calm and thus can be deceivingly fast.  Secondly, as the water spills over the dam a hydraulic may occur just on the downside of the dam and a swimmer caught in the hydraulic may be unable to escape and will drown.  The hydraulic may span the entire width of the river and may not be apparent to common observation.  The City of Lexington did nothing to warn anyone of the dangers of the river and encouraged swimming and boating.  There was a dock some 85 feet above the dam for swimmers and boaters to enter.  Often swimmers, including the plaintiff, swam to the dam, stood on the dam, and jumped into the water on the downhill side which was not dangerous at low water levels but seriously dangerous at high water levels.

The plaintiff and his buddies went swimming not realizing how high the water was and how fast it was moving.  Note again that the water above the dam can appear calm even with high levels of water.  Two of the boys were swept over the dam into a serious hydraulic below the dam.  One escaped, the plaintiff drowned.  His body was recovered at the foot of the dam a day later.  Defense witnesses testified that the water was clearly dangerous.

The plaintiffs brought suit alleging ordinary negligence and gross negligence.  The ordinary negligence issues were struck by the trial judge because the city, a municipal corporation, is immune for most tort suit like this one for ordinary negligence and can only be held responsible for acts of gross negligence.  The jury deadlocked on the gross negligence claim and the trial judge, on renewed motion, struck that claim also.  The plaintiff appealed.

The plaintiff had the status on an invitee since this was a public park and he entered for the purposes for which the park was designed.  The trial court ruled that there was no duty to warn, apparently because the danger was open and obvious.  The Virginia Supreme Court disagreed.  While ordinary river water conditions come under the open and obvious category, in this case the hydraulic, a feature of a man-made dam, was not such that it was open and obvious as a matter of law.  A jury needed to decide this issue.

Also some of the City employees and managers knew of the danger of the hydraulic and nothing was done to warn persons who were invited to swim in the park.  The issue of gross negligence was for the jury and shouldn't have been taken from them.  Reversed for a new trial.

GEICO v. USAA - Virginia Supreme Court - April 21, 2011

This case involves whether a second permittee had permission to use a vehicle and thus had liability coverage.

The plaintiff was injured in an automobile accident with another vehicle and brought suit.  He served his own company, USAA, under the uninsured motorist clause anticipating the possibility that the other insurance companies might refuse to cover the defendant.   The insurance on the defendant's vehicle and the defendant driver's own insurance jointly brought a declaratory judgment action alleging no coverage due to non permissive use.  The trial judge, sitting without a jury, held that there was permissive use and GEICO appealed.

The facts were that GEICO insured the vehicle the defendant was driving.  The named insured was the mother of a girl.  The girl was the usual user of the vehicle and thus would be covered under the policy as a relative residing in the household.  She had permission to drive the vehicle.

The defendant was also insured, through his mother.  The policy, GEICO Indemnity (a different company technically than GEICO) covered the defendant, who was a relative of the named insured, if driving a family automobile with the permission of the owner.  Under the terms of the Omnibus Clause the custodian of the vehicle can, in most circumstances, give permission for the owner.  The question of coverage on both policies was whether the defendant had permission to operate the vehicle under the facts of the case.

The facts were that the girl and her friends were out partying and traveling from place to place.  The girl got in a fight with her boy friend and an altercation arose.  The defendant driver was a close friend of the girl but was not the boy friend.  As the result of the altercation the defendant took the car keys, which were on a table, and went out for a ride apparently by himself in the girl's car.  The keys had been put on a table since the girl did not have a purse with her that night.  After the car was gone for 30 minutes the girl called the police to report it stolen.

The girl testified that her mother, the named insured, told her never to let anyone else drive the car.  She testified that except for one occasion she did not let anyone else drive the car.  However there was substantial testimony that the girl in fact let anyone drive it who asked, and the trial judge found this latter testimony more credible and ruled that the defendant had permission.

On appeal the Virginia Supreme Court reversed.  The Supreme Court noted that while the evidence was that anyone who asked was given permission to drive the car that there was no evidence that the defendant asked on this particular occasion.  Also when permission was given it was always for short excursions and this was much lengthier than any previous permitted borrowing.  The fact that the girl reported the car as stolen also factored in.  Therefore reversed and GEICO and GEICO Indemnity are not required to cover the defendant.

Kocher v. Campbell - Virginia Supreme Court - June 9, 2011

This case involved a plaintiff in a personal injury case who took bankruptcy during the pendency of the case.

The plaintiff was in a motor vehicle accident. Over a year later he filed bankruptcy. He did not list the automobile accident and the attendant claim as an asset in the bankruptcy or otherwise declare the personal injury claim in the bankruptcy. A few months after that, he received a discharge in bankruptcy. A month after he received the discharge he filed suit on the automobile accident claim. This was about two months before the two year statute ran on the claim. This suit was never served and was nonsuited.

The case was refilled within the six months allowed by the nonsuit statute and was properly served. The defendant moved to dismiss the suit on the grounds that the plaintiff did not have standing and the plaintiff took a second nonsuit. The plaintiff then moved to reopen the bankruptcy. While this motion was pending before the bankruptcy court but within the six months allowed by the nonsuit statute the plaintiff filed a third lawsuit and, after nearly a year, this third lawsuit was served. Following this the bankruptcy court, having reopened the bankruptcy, ruled that the lawsuit, now having been listed on the form listing assets and also listed on the form for exemptions, was properly exempted.

The defendant moved to dismiss the plaintiff's lawsuit on the grounds that the plaintiff lacked standing when he filed and that the statute had long run. The circuit court denied the defense motions but did certify an interlocutory appeal.

On appeal the Virginia Supreme Court reversed and dismissed the plaintiff's case.


Once bankruptcy is filed all assets, including personal injury actions whether pending in court or not, and whether listed or not, become assets of the bankrupt's estate and controlled by the trustee.Once the suit becomes an asset of the estate it can be discharged from the estate in one of several ways;It is listed as an asset and the trustee formally abandons the assetIt is listed as an asset and then an exemption is formally claimed and the court rules that the exemption has been properly listed – this is the usual way for PI casesIt is listed as an asset and the trustee does not deal with the asset up until the discharge, at which point the asset is presumed abandoned

If the personal injury claim is not listed it stays with the trustee even after discharge. The trustee cannot abandon an asset that he has no knowledge of.

In this case the personal injury case was never listed as an asset. The trustee, after the bankruptcy filing, controlled the case and had the sole ability to file suits and the plaintiff had none. Since the plaintiff did not have standing to file suit all of the three suits that had been filed on his behalf were nullities and the statute of limitations had long run. Dismissed.

Davis v. Fairfax - Virginia Supreme Court - June 9, 2011

The County of Fairfax filed an action in General District Court, as it was required to by the particular statute, to have that Court declare the defendant an unfit pet owner. The General District Court issued such an order and the defendant appealed. While the case was in the Circuit Court the County of Fairfax nonsuited the case. The County then brought the action again in the General District Court and that Court dismissed the case stating that it had no jurisdiction. The County appealed from that ruling to the Circuit Court which ruled that it had no general jurisdiction but noted the appeal. The appeal was heard and ultimately the case came to the Virginia Supreme Court.

The defendant argued that once the case has been appealed to the Circuit Court that Court has sole jurisdiction after a nonsuit and the Virginia Supreme Court agreed. The nonsuit statute requires that a refiled suit be in the same court from which the nonsuit was taken and therefore the County filing in the General District Court was improper because that Court had lost jurisdiction. Therefore the appeal from that Court was improper because the Circuit Court's jurisdiction is derivative of the General District Court so if the General District Court had no jurisdiction then there cannot be an appeal from that court. Therefore there is no jurisdiction in the Circuit Court even though it would have had jurisdiction if the case had been refiled there.

Therefore once a case has been appealed to the Circuit Court a new filing of a nonsuited case must be done in the same Circuit Court.

Rutter v. Oakwood - Virginia Supreme Court - June 9, 2011

This case involves the interpretation of the statute which allows a judge to dismiss inactive cases.

The underlying case is a nursing home negligence case where the plaintiff died allegedly as the result of improper handling, causing a fall, hip fracture and death. Several persons and corporations were named as defendants and during the pendency of the case two of them took bankruptcy. Upon motion the Circuit Court entered an order removing the entire case from the docket and added ;

"This action shall be ordered to be discontinued if after three years there has been no further order or proceeding under Section 8.01-335(B)."

Five years later the plaintiff moved to set a trial date. There had been some discovery and related items during the intervening time but nothing that showed up on the Court's docket until the motion to set a trial date. A trial date was not set and four years later the defense moved to dismiss on the grounds of the statute of limitations and/or a motion to dismiss. The argument was that the Court's order was self-executing. That is, three years after entry the case was automatically dismissed without any further action being necessary. The trial court accepted the defense argument and this appeal followed.

The Virginia Supreme Court reversed. Basically they held that an order of dismissal under that statute must be rendered after the three years had passed and the trial court, in reviewing the record, had made a determination that there had been no activity in the previous three years. The statute did not permit an order of without a backward look at the record.

Dabney v. Augusta Mutual Insurance - Virginia Supreme Court - June 9, 2011

This case discusses the reasonable of notice given of a claim to the insurance company.

The plaintiff was bitten by two pit bulls on April 9, 2002 while in her own yard. Her shoulder was injured and her arm broken. She did not know who owned the dogs. A friend began an investigation and after a couple of months identified the defendant and the dogs. The defendant lived in the home of a person with homeowner's coverage. However that homeowner died shortly after the accident and before the friend discovered the ownership of the dogs and there was no evidence that the homeowner ever knew of the dog attack. In November of 2002 a person qualified as administrator of the estate of the homeowner. There was a fire in the house and the administrator, in March of 2003, nearly a year after the accident, discovered that there was a homeowner's policy as she was making the claim for the fire. In June suit was filed by the plaintiff which was served in August of 2003. A lawyer was retained by the administrator to represent her. In May of 2004 the administrator's lawyer sent a letter to Augusta Mutual, the insurance company, informing them of the claim. However, Augusta had moved and claimed they never got the letter. The jury in the case found that Augusta had not, in fact, received the letter from the administrator's lawyer. In January of 2005 the plaintiff's friend contacted Augusta Mutual and informed them of the claim. At that time the plaintiff's friend also obtained from the administrator's lawyer a copy of the May 2004 letter which Augusta had not received and faxed that to Augusta. A submittal package was sent shortly thereafter by the plaintiff's counsel and copies of the pleadings were also sent. Shortly thereafter Augusta stated that it would neither provide a defense nor pay the claim because they had not been notified as soon as practicable as the policy required. The underlying personal injury claim settled against the administrator who then assigned her rights to the insurance policy to the plaintiff and the case proceeded towards trial. Augusta moved for summary judgment on the notice issue. After hearing from the jury that Augusta did not in fact receive the May 2004 notice from the administrator's counsel and ruling on a pleading issue with respect to Augusta's waiver of failure of notice the trial court ruled as a matter of law that notice was not timely and dismissed the case.

The Virginia Supreme Court reversed. They pointed out that whether notice has been given "as soon as practicable" is normally a jury issue. Given the time it took to identify the dogs and the owner of the dogs and the homeowner, the death of the homeowner and the time it took for the discovery by the homeowner's administrator that a policy even existed, and given the fact that Augusta had moved without informing the policyholder of their new address, there was an issue of timely notice that should have been decided by the jury rather than the trial court.

The Aces Corp. v. Steadfast Insurance Co. - Virginia Supreme Court - September 16, 2011

This is the climate change insurance coverage case. AES is a Virginia energy company that operates many carbon-based electrical power plants, among other things. A group of Native Americans who lived on an island in the Aleutians filed suit against AES and many other power plant operators in federal court in Northern California. The Native Americans alleged that the various power companies' emissions had caused global warming which was melting the ice earlier in the year, leaving their village more susceptible to storm surges and therefore uninhabitable. Steadfast Insurance Company, which insured AES, filed a declaratory judgment action asserting that the complaint by the Native Americans alleged an intentional act; therefore, under the terms of the policy, Steadfast had no duty to defend or pay the claim.  An Arlington County judge agreed and this appeal followed.

The Eight Corners Rule governs these types of insurance coverage disputes. The rule requires one to examine the four corners of the complaint and the four corners of the policy and use that evidence alone to determine whether or not the complaint alleges a cause of action for which there is coverage.

The policy covers an "occurrence" which basically means an "accident." The complaint alleged that AES intentionally emitted tons of carbon dioxide into the atmosphere which they "knew or should have known" would cause global warming and the resulting damage to the Alaskan village. The Court held that emitting greenhouse gases into the atmosphere is an intentional act, which negates insurance coverage.

White Crane Service v. Howell - Virginia Supreme Court - September 16, 2011

This case involves the availability of the workers' compensation bar.

On a construction project in Southampton, the general contractor employed Crane Company to work on the project lifting steel. An employee of the general contractor was injured by an employee of the Crane Company due, allegedly, to the negligence of the crane operator. The employee of the general contractor received workers' compensation from his employer and then tried to sue the crane operator. The crane operator is typically considered to be a statutory co-employee in this situation. The parties stipulated to this fact. However, counsel for the general contractor's employee argued that the workers' compensation bar should not apply in this case because the Crane Company had not purchased workers' compensation insurance.

The issue before the Court was whether the crane company forfeited its protection under the workers' compensation Act by failing to purchase coverage.  The Virginia Supreme Court held that they do not forfeit their protection. A worker cannot sue a statutory co-worker even if that person's employer did not purchase workers' compensation insurance.

Ruhlin v. Samaan - Virginia Supreme Court - November 4, 2011

This case describes the limits of using the transcript of a recorded statement taken from a plaintiff in a personal injury case during cross examination of the plaintiff at trial.

The plaintiff was involved in an automobile accident and liability was admitted. The insurance company took a recorded statement from the plaintiff and had it transcribed. Apparently the question at trial was the extent to which the plaintiff's injuries, in particular a left shoulder injury, were related to the accident or some other cause. The verdict was for the plaintiff in the amount of $5,000 and the plaintiff, evidently very unhappy, appealed.

The plaintiff alleged that he suffered a left shoulder injury in the accident. He had injured his left shoulder several years before the accident and indeed, had been operated on for the left shoulder at that time. The medical records from the emergency room on the day of the accident do not reference any injury to the left shoulder. Later on the same day as the accident but after the ER the plaintiff talked with a representative of the insurance company and described the accident and his injuries. The left shoulder was not mentioned in that conversation although other injuries were. This was the recorded statement at issue. The plaintiff testified at trial that his shoulder began to hurt shortly after the accident and but it was three weeks after the accident that he began to receive treatment for the shoulder.

At trial the defense lawyer cross examined the plaintiff about the conversation with the insurance representative. The plaintiff first suggested that all they talked about was liability. He said that he didn't recall whether they discussed the injuries. The defense lawyer then presented the plaintiff with a copy of the recorded statement, without identifying it to the jury, and asked if that document refreshed his memory. This was done over objection and was permitted by the trial judge. The defense lawyer then cross examined the plaintiff on the fact that he did not tell the defense representative that his shoulder hurt and the plaintiff agreed with that.

After this testimony the plaintiff attempted to call his wife as a witness to his statements that he had hurt his shoulder, claiming admissibility as a prior consistent statement. The trial judge sustained the defense objection and the case proceeded to the small jury verdict.

The Virginia Supreme Court affirmed the trial judge. It is clear from prior case law that the substance of the conversation is admissible, but the recording or writing is not. The defense lawyer here did not use the writing, the transcript, to cross examine the plaintiff but merely to refresh the plaintiff's memory. As long as the document was not identified to the jury this was permissible. The statute prohibits using the writing to contradict the plaintiff's testimony, not to refresh it his memory.

The trial court also correctly refused to admit the prior consistent statements of the plaintiff's wife. They are hearsay. A prior consistent statement may be admitted if there is a charge of recent fabrication and the prior consistent statement was made before there was a motive to fabricate.


Landrum v. Chippenham - Virginia Supreme Court - November 4, 2011

In this medical malpractice case the trial judge excluded the testimony of the plaintiff's witnesses because the plaintiff failed to follow the court's pretrial rulings and the Virginia Supreme Court affirmed.

The key plaintiff's lawyer here was from Missouri, admitted pro hac vice. Suit was filed and the trial court entered a scheduling order. This order included a date for expert witnesses to be identified and also by that time the information under Rule 4:1(b)(A)[(i)] (that is, opinions of experts and the basis for the opinions) needed to be supplied. Although asked two months before the deadline to identify expert witnesses the counsel waited until the day set by the trial court to provide any information. This provided only the names and addresses but not the substance of the opinions. The defense moved to exclude any testimony of the experts. Upon learning of the motion to exclude the Missouri counsel supplemented his answers by sending reports from the two designated experts, but this information did not comply with the above noted rule. At the hearing on the motion to exclude the plaintiff's lawyer admitted that he had failed to comply with the rule. He believed that the defense had enough information but agreed to formally supplement. The trial court gave him one week and stated that if he failed the case would likely be dismissed. The plaintiff's lawyer from Missouri did supplement in a timely fashion except that he alone signed the pleading. As the plaintiff's lawyer was an out of state lawyer a local lawyer was, by rule, required to sign also. At a hearing on defendant's motion, again to exclude, the out of state lawyer admitted the failure to have local counsel sign that and other pleadings, but noted that he had corrected the problem by having local counsel sign later. The trial judge refused to accept this, dismissed the late filing, and dismissed the case since the plaintiff had no experts available to testify.

The plaintiffs appealed the dismissal. The Virginia Supreme Court cited the rule, Rule 1A:4(2) which requires that all pleadings be signed by local counsel and if not such pleading shall be "invalid." An invalid order is of no effect and cannot be amended. Therefore the plaintiff had failed to comply with the trial court's orders and excluding the experts was not an abuse of discretion. In its ruling the Virginia Supreme Court noted that the plaintiff's lawyer had been warned several times. Furthermore they noted that the Missouri lawyer had failed to follow the pro hac vice rules as well as the discovery rules.


Anderson v. Commonwealth Virginia - Supreme Court - November 4, 2011

This is the second of the two recent Virginia Supreme Court cases on the admissibility of prior consistent statements. The prior one, Ruhlin v. Samaan (also November 4, 2011) involved the recent motive exception to the rule that prior consistent statements are normally not admissible. That case noted that once a person testifies and the opponents attack the credibility of the witness by stating that there is a motive to testify falsely that the proponent of the witness may rebut by introducing prior consistent statements that occurred before the motive to falsify existed. This case describes the other exception. Once a witness has testified and been challenged by a prior inconsistent statement then prior consistent statements may be admitted in rebuttal. In this criminal case the witness victim testified at trial that she felt the cold hard steel against her head and heard a click like the cocking of a gun but never saw a gun. In a prior statement to a deputy she said that she did see a gun. The prosecution was allowed to admit statements to other law enforcement officers where she said that she never actually saw a gun but felt it and heard it only. Note that the admissible consistent statements are not hearsay because they are not admitted for the proof of their content but merely in support of the statement made at trial. The hearsay limitations do not apply.

Note also that the only thing being admitted under this exception is the prior consistent statement. This does not give the proponent the opportunity to repeat the entire testimony under the guise of prior consistent statement.

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