Virginia Injury Lawyers Blog

December 7, 2016

Plaintiff’s Bad-Faith Insurance Claim Allowed to Proceed after Dismissal Is Reversed on Appeal

Earlier this month, a federal appellate court issued an opinion that reversed a lower court’s holding that dismissed a plaintiff’s bad-faith claim against her own insurance company. In the case, Peden v. State Farm, the court determined that the insurance company’s failure to conduct a thorough investigation before denying the plaintiff’s claim potentially could give rise to a bad-faith claim. Since the lower court dismissed the plaintiff’s claim, claiming it was insufficient as a matter of law, the appellate court reversed the decision, allowing the plaintiff’s case to proceed toward trial or a settlement.

The Facts of the Case

The plaintiff, Peden, was with a group celebrating a friend’s birthday. Her friend had received a new van for her birthday from her fiancé, Mr. Graf. At some point in the evening, the group piled into the new van for a photo. By this point, most of the group, including Graf, was intoxicated. Once the group was in the van, Graf hopped into the driver’s seat and took the van for a cruise.

Graf crashed the van while driving under the influence, injuring several inside, including Peden. Both Peden and Graf were insured by State Farm. Peden initially filed a claim with Graf’s insurance. However, since the total policy limit had to be split among all injured parties, the amount Peden received was insufficient to cover her damages. She decided to file a claim under her own insurance policy to recoup the difference.

December 1, 2016

Government Immunity in Virginia Personal Injury Lawsuits

by Sidney Schupak, Esq.

Due to its proximity to the nation’s capital, Virginia sees a higher-than-average number of lawsuits with government entities, officials, or employees being named as defendants. That being the case, it is important for personal injury plaintiffs to understand the concept of governmental immunity and how the legal doctrine can come into play in a personal injury case.

Governmental Immunity Acts to Protect Government Employees in Some Situations

Under the long-standing doctrine of governmental immunity, a state or local government cannot face legal liability for the acts of its agencies or employees unless it consents to the lawsuit. Statutory law outlines some situations in which governments automatically consent to lawsuits brought against them, such as in cases of willful or intentional misconduct. However, in cases involving acts of negligence, government agencies will generally not consent to be named as a defendant.

This is where the doctrine of government immunity becomes complicated. Immunity only attaches to acts that are considered discretionary in nature. For those other acts that are ministerial, meaning there is a certain way that the act is supposed to be carried out, government immunity will not attach. This is where much of the litigation takes place in many lawsuits brought against government defendants. A recent case illustrates this point.

November 21, 2016

The “Foreseeability” Requirement in Personal Injury Lawsuits

by Sidney Schupak, Esq.

Personal injury lawsuits have certain elements that must be proved before an injured party is able to recover financially for their injuries from the at-fault party. Generally speaking, these four elements are duty, breach, causation, and damages. Thus, a plaintiff must prove that the defendant breached a duty of care that was owed to the plaintiff and that this breach was the cause of the plaintiff’s injuries.

Over the course of time, courts have developed a framework for determining when a defendant owes a plaintiff a duty of care. For example, most motorists owe other motorists with whom they share the road a duty to operate their vehicle in a safe manner. However, that duty is not unlimited. Specifically, the duty only covers those who could be foreseeably injured by the defendant’s negligent conduct. A recent case explains this concept in more detail.

Ready v. RWI Transportation: Foreseeability in a Chain-Reaction Accident

A truck operated by an employee of RWI Transportation caused an accident on the highway when he made an improper lane change. As a result of the accident, the truck and another vehicle ended up blocking several lanes of travel, causing a significant traffic back-up.

November 16, 2016

Proving a Virginia Premises Liability Claim

by Sidney Schupak, Esq.

Whenever someone is injured on another party’s property, the property owner may be legally liable for the injuries suffered by the injured party under the theory of premises liability. Premises liability cases are based on the legal theory that landowners owe a duty of care to keep those whom they invite onto their land safe. The level of duty owed to the guest depends on the relationship between the landowner and the guest.

In Virginia, plaintiffs must prove that the defendant property owner owed a duty of care to the injured party that was violated by some action or inaction. Most often, these cases are brought after a property owner fails to take some kind of action to remedy a hazard on their property. For example, an unshoveled walkway or puddle of water can very easily result in a guest slipping and falling.

Virginia premises liability plaintiffs must also prove that the property owner was negligent in their failure to remedy the hazard. This often entails showing that the property owner knew or should have known of the dangerous condition. If a plaintiff cannot prove that the landowner had the requisite level of knowledge, it is unlikely that their claim will be successful.

November 9, 2016

Court Holds Plaintiff’s Injury While Boarding Casino Shuttle Results in Viable Lawsuit Against Casino

by Sidney Schupak, Esq.

Earlier this month, a California appellate court issued a written opinion in a case involving a plaintiff who was injured as she boarded a casino shuttle bus. While the woman’s injuries were caused by a fall precipitated by other passengers, the court determined that the casino had a duty to ensure the safe boarding of the shuttle. In so holding, the court reversed a lower court’s decision to dismiss the woman’s case.

Huang v. The Bicycle Casino: The Facts

The Bicycle Casino operates a shuttle to pick up gamers who do not have other transportation to get to the casino. The shuttle operated throughout Los Angeles and traveled on a fixed path with several stops along the way. Since the shuttle ran just once an hour, some of the more popular stops would have many people waiting for the shuttle. The shuttle could hold only about 45 people.

The casino would occasionally bring along a second employee, along with the driver, to ensure that passengers would board in an orderly fashion. However, on the day in question, the driver was alone. As the driver approached the stop where Huang was waiting, the crowd of people surged toward the shuttle.

November 3, 2016

Plaintiff’s Personal Injury Lawsuit Permitted to Proceed Despite Signed Arbitration Agreement

by Sidney Schupak, Esq.

Earlier this month, one state’s appellate court issued a written opinion in a case brought by the parents of a young boy who was injured while participating in the defendant’s trampoline park. In the case, Alicea v. Activelaf, the court allowed the plaintiff’s lawsuit against the defendant to proceed toward trial despite the fact that the plaintiff signed an agreement to arbitrate any claims against the defendant.

The Facts

The Aliceas were planning on taking their two young boys to the defendant’s trampoline park. Prior to being admitted into the park, the Aliceas were required to sign a “Participant Agreement, Release and Assumption of Risk.” The online form contained three large blocks of text with check boxes next to each. The form required checks in all three boxes, the names and dates of birth of all participating children, and a signature at the bottom. The form contained several clauses; relevant to this case was an arbitration clause that purported to waive any right that the participant had to file a case against the defendant in a court of law. Instead, all claims would be settled by arbitration. There was also a clause stating that a $5,000 fee would be imposed if a case was filed against the defendant in a court of law. Ms. Alicea checked all three boxes on the form, signed it, and submitted it electronically.

October 25, 2016

Man Injured on Construction Site by Falling Scaffolding, Defendant Allegedly Destroyed Evidence

by Sidney Schupak, Esq.

Earlier this month, a federal court of appeals issued an opinion in a product liability case involving an employee who was injured while on the job by a piece of falling scaffolding. In the case, Schaefer v. Universal Scaffolding, the court had to decide what to do with the plaintiff’s claim that the defendant intentionally lost or destroyed the very piece of scaffolding that caused his injuries. Ultimately, the court upheld the plaintiff’s right to seek compensation for his injuries by holding that the lower court applied an improper standard when dismissing the plaintiff’s case.

The Facts

Schaefer was employed by Brand Energy, a construction company. Brand Energy was contracted by Dynery to complete work on a power plant. Universal Scaffolding manufactured the scaffolding that Brand Energy used on the job, but Dynergy purchased the scaffolding. Employees of Brand had difficulty assembling the scaffolding because it kept coming apart at the joints. Schaefer was walking below some of the scaffolding when he was struck on the head by a piece that had come loose. He filed a product liability claim against Universal Scaffolding, as well as related claims against Brand Energy and Dynergy. Relevant to this discussion is Schaefer’s claim against Universal Scaffolding.

Before trial, Universal Scaffolding told Schaefer and his attorneys that they no longer had the piece of scaffolding that had fallen and allegedly caused his injuries. Schaefer asked the court to impose sanctions against Universal Scaffolding for failing to preserve the material and relevant evidence. However, the trial court determined that, although Schaefer could not succeed without the evidence, he did not show that he would have succeeded at trial with the evidence, and the case was dismissed.

October 17, 2016

A Business’ Obligation to Keep Its Customers Safe

by Sidney Schupak, Esq.

Under the theory of premises liability, business owners have an obligation to ensure that the customers they invite into their stores are kept reasonably safe. In fact, customers of a commercial enterprise are known as “invitees” under the law and enjoy the highest level of protection. This means that businesses must use reasonable care to ensure that their business is reasonably safe. Included in this duty is the requirement that business owners warn customers of any potential hidden dangers on the premises, such as spills, holes, or uneven pavement.

In order for an injured party to hold a business liable for a “hidden danger,” the accident victim must establish that the business owner had knowledge of the danger to begin with. This can be proven through evidence showing that the business had actual knowledge of the danger, or evidence showing that the business should have known about the danger, given the surrounding facts. A recent lawsuit filed by an Ohio woman who was injured while at the supermarket shows how this can play out in real life.

A Woman Is Struck by a Motorized Grocery Cart

Earlier this month, a jury returned a $1.3 million verdict in favor of a woman who was seriously injured at the defendant’s grocery store after she was struck by a motorized grocery cart being operated by another customer. According to an industry news source reporting on the case, the 71-year-old woman was struck by the cart and tossed approximately four feet, where she struck her head on a shelf.

October 12, 2016

What Happens When an Insurance Company Acts in Bad Faith and Refuses to Settle a Case?

by Sidney Schupak, Esq.

Motorists in Virginia are required to carry a certain amount of auto insurance in order to legally operate a vehicle on any public road. In theory, this prevents an uninsured motorist from causing an accident that results in medical bills that he or she cannot pay. However, insurance companies are for-profit enterprises that may not always have the accident victim’s best interests in mind. As a result, Virginia law allows an accident victim to pursue a bad-faith claim against an insurance company that refuses to settle a claim without a good reason.

Virginia Bad-Faith Claims

In Virginia, the applicable statute that governs bad-faith insurance claims is Va. Code § 8.01-66.1. The statute explains that an insurance company that fails to settle a claim out of bad faith can be ordered by a court to pay the accident victim any amount due, plus interest, as well as a reasonable fee for attorney’s fees and other expenses. In some cases, an insurance company that refuses to settle in bad faith may become liable for amounts above and beyond those outlined in the insurance policy. Importantly, the burden is on the accident victim to prove that the insurance company acted in bad faith.

A Recent Example of Alleged Bad Faith

In the case, Holloway v. Direct General Insurance Company, the plaintiff was injured in a low-speed auto accident occurring in a parking lot. The facts leading up to the accident were in dispute. Holloway, the plaintiff, claimed that the accident was Sykes’ fault, and Sykes, who was insured by the defendant insurance company, claimed that the accident was Holloway’s fault.

October 4, 2016

Supreme Court of Virginia Finds Auto Maker Has No Legal Duty to Make Soft-Top Convertible Capable of Withstanding Rollover Accident

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Virginia issued an interesting opinion in a product liability case involving a plaintiff’s claim against an auto maker that the soft-top convertible she was operating during a rollover accident failed to protect her from injury. The case, Holiday Motor Corporation v. Walters, was ultimately decided in favor of the defendant auto maker because the court determined that there was no legal duty to create a soft-top convertible that was capable of withstanding the force of a rollover accident.

The Facts of the Case

Walters, the plaintiff, was driving her 1995 Mazda Miata. The car was a soft-top convertible. She was driving it on a two-lane highway behind a pick-up truck when she noticed a large object fall off the back of the truck. She swerved to avoid hitting the object and ended up rolling the vehicle.

When the car came to a stop, it was upside down and partially leaning against a tree. The roof of the convertible had caved in, and as a result Walters sustained serious back and neck injuries. She filed a product liability lawsuit against the manufacturer of the vehicle. The argument she made was that the auto maker’s failure to manufacture the soft-top so that it would protect the occupants of the vehicle was a breach of the implied warranty of merchantability.