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Tolling the statute of limitations for change-in-condition applications under Virginia Act
In Ford Motor Company v. Gordon, 281 Va. 543, 708 S.E. 2d 846 (2011), the Court considered the proper interpretation of Va. Code sec. 65.2-708(A) and 65.2-708(C), which govern the tolling of the statute of limitations for filing a change-in-condition application for workers' compensation benefits. The Court held that the Code sec. 65.2-708(A) statute of limitations runs anew under each successive award of compensation for a particular compensable injury and is triggered on the last day for which compensation was paid. The Court also held that Code sec. 65.2-708(C), by providing for wages meeting certain prescribed conditions to be treated as compensation under sec. 65.2-708(A), applies to each such award.
The effect of these statutes is best understood by their application to the facts of the Gordon case. The claimant sustained a compensable injury in Ford's plant in Norfolk, Virginia on January 9, 2000. Based on this injury, the Commission entered a series of awards of compensation to Gordon for various periods of TTD and PD. The last of these awards was entered on January 13, 2003, which was an open-ended award for TTD. Gordon received his last payment under this award on February 23, 2003. Thereafter, between periods of TTD, he worked in light duty positions for Ford. He worked light duty from October 23, 2000 to January 3, 2001; from April 1, 2002 through June 30, 2002, and from April 20, 2003 through September 11, 2006, earning wages equal to or higher than his pre-injury average weekly wage. On September 11, 2006, he was temporarily laid off from his position at Ford because the plant was shut down for production reasons, and he filed a change-in-condition application on September 25, 2006, seeking TTD benefits based on lost wages caused by this change in condition.
The Court's holding meant that because Gordon worked in a light-duty capacity for Ford from April 2003 through September 11, 2006, and was paid wages equal to or greater than his pre-injury wage, under Code sec. 65.2-708(C), the wages that Ford paid to Gordon during the first 24 months must be considered "compensation" for purposes of tolling the statute of limitations under Code sec. 65.2-708(A). Accordingly, since the application for benefits was made within 24 months after the last day for which compensation was paid, the application was timely.
Subsequent to the Gordon decision, the Virginia Court of Appeals has applied Gordon in Prince William County School Board and VML Insurance Programs v. Rahim, No. 1737-10-2 (Va. App. July 12, 2011). There, the Court held that in a case where the Commission had entered a "medical-only" award, under Code secs. 65.2-708(A) and 708(C), the claimant had 24 months from the last day compensation was paid either pursuant to an award or pursuant to the requirements of subsection C within which to file a change-in-condition application. In so ruling, the Court distinguished Mayberry v. Alcoa Bldg Prod., 18 Va. App. 18, 441 S.E.2d 349 (1994), and limited that decision to its facts, on the grounds that in Mayberry, there had been no formal award entered by the commission, and voluntary payment of medical expenses by the insurer is not the payment of compensation which tolls the running of the statute of limitations.
Posted by David B. Stratton on 01/16/2012 at 08:49 PM
Virginia •
Workers Compensation •
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Virginia Workers Compensation: Court affirms successful res judicata defense
In Brock v. Voith Siemen Hydro Power Generation et al., No. 0428-11-3 (Va. App. Nov. 1, 2011), the Court affirmed a decision by the Virginia Workers Compensation Commission that the claimant was barred by res judicata from litigating injuries he alleged in his initial claim but did not raise at his evidentiary hearing.
As a result of a work injury, Brock filed a workers' compensation claim seeking benefits for injuries to his shoulder, back, and hips. He later amended his claim to allege additional injuries to his head and leg. A deputy commissioner scheduled a hearing and advised Brock's counsel that all issues will be considered at the upcoming hearing. Brock's counsel requested a continuance, and the hearing was continued for more than three months.
At the hearing, Brock and the employer stipulated that he had injured his left shoulder. Brock, who was represented by counsel, produced no evidence of his other injuries. Significantly, Brock also did not request additional time to obtain evidence, did not ask the deputy commissioner to hold the record open to later consider the other injuries, did not seek to withdraw any part of his claim, and did not ask the deputy commissioner to defer for later determination issues which were unripe for adjudication.
The deputy commissioner entered an award for benefits for the stipulated injury to the left shoulder, and dismissed the claim. Neither party appealed the order to the full commission.
Months later, Brock, proceeding pro se, filed a claim seeking benefits for injuries to his back, head, shoulder, leg, and hip arising out of the same workplace accident. At a hearing for these claims, the employer argued that these claims had been abandoned and argued that they could not be properly considered. The deputy commissioner held that Brock had abandoned the claim for injuries beyond the stipulated left shoulder injury, but declined to apply res judicata, instead finding that the abandonment was in effect a non-suit.
The employer appealed to the full Commission, arguing in part that the doctrine of res judicata barred the claims for the other alleged injuries. The Commission agreed that res judicata barred Brock's allegedly new claim for injuries. Brock then appealed the Commission's decision.
The Court of Appeals affirmed the Commission, noting in pertinent part that claims precluded by res judicata include those "made or tendered by the pleadings" as well as those "incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered." The Court noted that these res judicata principles apply to workers' compensation cases.
The Court observed that on appeal, Brock "simply asserts the right to litigate the case on an injury-by-injury basis at separate hearings with each resulting in separate award orders." The Court rejected that argument, stating, "Like the commission, we are unaware of any 'conceivable public policy which would be furthered by such piecemeal adjudication of claims.'"
This case illustrates the importance of claimant's counsel taking formal steps at a workers' compensation hearing to preserve claims which may not be ready for adjudication.
For employers, insurers, and their defense counsel, this case underscores that in any file where the employee is alleging additional injuries arising out of an accident which has already resulted in an award, it is important to fully understand what issues were raised in the prior proceeding, what issues were decided, and what issues were preserved for later adjudication.
Posted by David B. Stratton on 01/16/2012 at 03:41 PM
Virginia •
Workers Compensation •
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Presumption that death on the job was work-related held not to apply in Virginia comp appeal
In Puller v. Fairfax County School Board, No. 0886-11-4 (Va. App. 2011), the Court affirmed the Commission's denial of workers' compensation benefits to a widow whose husband died of a heart attack while performing his job as a mail delivery truck driver.
The decedent, who worked for the School Board, was found dead in the cargo area of his mail truck, with numerous burns on his body from the metal floor of the truck. Following an autopsy, the state medical examiner reported that the cause of death was hypertensive and aatheroscleratic cardiovascular disease, and that the skin changes were postmortem, due to contact with a hot surface.
The police investigation found that the floor of the mail truck's cargo area could reach the temperature of 120 degrees. The police concluded that the decedent died of a heart attack while backing his van, then fell to the floor of the van where he sustained the burns.
The widow filed a claim for workers' compensation benefits, on the theory that working in the July heat caused the heart attack which killed the decedent. She supported her claim with opinions from a cardiologist and an internist that the cardiac arrest was caused by the extraordinary heat in the vehicle.
The employer offered the opinion of a cardiologist that the ambient temperatures on that day were fairly average, and that the cardiac arrest was the product of risk factors including hypertension, diabetes, hypercholesterolemia, and cigarette smoking. The cardiologist concluded that the decedent's death was not work related, and resulted from natural causes and that the burns were as a result of post-mortem heat exposure. The employer also offered the decedent's medical records, which indicated that he had been transported to a hospital for chest pains, one month before his death.
The deputy commissioner denied the claim for benefits, and that ruling was affirmed by the Commission.
On appeal, the Court considered whether the claimant, under these circumstances, was entitled to a presumption that the decedent's death was work related. There is a presumption that a death at the workplace is work related, but it applies only to cases where the employee is found dead at his place of work or nearby, and even then, only when no plausible inference suggests that the accident might be noncompensable. That is, the only rational inference to be drawn must be that death arose out of an in the course of employment. No presumption can be said to arise where an employee suffers from pre-existing heart disease and subsequently dies of cardiac arrest while at work.
Here, since it was undisputed that the decedent had a pre-existing heart condition and that he died of cardiac arrest while at work, the Commission correctly ruled that no presumption applied. The Court also concluded that there was sufficient evidence supporting the Commission's decision as to the cause of death.
This case illustrates the importance of careful review of the decedent's medical records in any workers' compensation claim arising from a death on the job.
Posted by David B. Stratton on 01/13/2012 at 11:29 PM
Virginia •
Workers Compensation •
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Virginia Workers Compensation award reversed because employer had insufficient number of employees
In Ragland v. Muguruza, No. 0524-11-4 (Va. App. 2011), the Court reversed the Virginia Workers Compensation Commission's award of benefits, on the grounds that there was insufficient evidence that Ragland, the employer, had three or more employees "regularly in service" at the time of the accident, and thus, the claimant was not entitled to benefits under Code sec. 65.2-101.
If an employer has fewer than three employees "regularly in service", it is not subject to the Act and has no obligation to provide its employees with workers' compensation benefits.
Ragland was the superintendent at an apartment building in Alexandria, Virginia. The owner paid him to clean and manage the property. On behalf of the owner, Ragland got bids from contractors to replace the building's windows, but then replaced about half the windows himself, with unpaid help from the owner and his sons. At that point, Ragland brought in a contractor to work on the window replacement project. The contractor brought two of his brothers, one of which was the claimant. On their second day of work, the claimant was injured while operating a table saw, and never returned. A few days later, the contractor stopped working for Ragland. Ragland did not replace the three brothers, however, the third brother later returned to help complete the window project.
The deputy commissioner awarded benefits to the claimant for his injury, finding that Ragland had three or more regular employees. The full commission affirmed, finding that Ragland was an employer who had three employees, as well as himself, performing work at the time of claimant's accident.
The Court of Appeals stated that the test is not whether Ragland was an employer who had three employees performing work "at the time of the accident", rather, the proper test was whether Ragland had three employees "regularly in service."
To determine whether an employee is "regularly in service", the Court examines the employer's "established mode of performing the work." The term "regularly" implies a practice, or a constant or periodic custom. Therefore, the Court looks for regularly recurring periods of employting the requisite number of persons over some reasonable period of time. In order for the employer to be subject to the Act, the recurring periods of employing the requisite number of employees should be the rule and not the exception.
In this case, for a window replacement project that took months to complete, Ragland had three workers for, at most, one and a half days. That did not constitute regularly-recurring periods. Ragland had never had three employees before the brothers worked for him for a day and a half, and did nto have three employees afterwards.
Thus, the Court held that Ragland did not have "three or more employees regularly in service" at the time the claimant was injured, and Ragland was not subject to the Virginia Act. The Court therefore reversed the Commission.
[Ed. Note: Inquiries about Virginia workers compensation defense issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]
Posted by David B. Stratton on 01/09/2012 at 06:26 PM
Virginia •
Workers Compensation •
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D.C. Workers Compensation: Court of Appeals rejects objective standard for mental disability claims
In Muhammad v. District of Columbia Depart. Of Emp. Serv., No. 10-AA-1049 (D.C. Jan. 5, 2012), the claimant had suffered a back injury on the job and was on temporary total disability. After three years, the employer enrolled the claimant in vocational rehabilitation, in an effort to find him sedentary work. After a year of unsuccessful vocational counseling, rehabilitation efforts were terminated. Subsequently, the claimant's treating physician recommended that the claimant begin seeing a psychiatrist, and the psychiatrist diagnosed the claimant with severe depression. The employer then arranged for a psychiatric IME, which diagnosed the claimant with a depressive disorder caused by the claimant's limited coping response to the challenges imposed by vocational rehabilitation.
The claimant then petitioned for permanent total disability benefits. The ALJ denied the claim, concluding that claimant's psychiatric injury was not medically causally related to the workplace injury to the claimant's back. The Compensation Review Board ultimately affirmed.
On appeal, the Court reversed and remanded the Compensation Review Board's denial of benefits on the grounds that the claimant's psychological injury did not arise out of and in the course of employment. The Court directed that on remand, the Board must resolve the question whether a claim flowing from vocational rehabilitation might be covered as involving what Professor Larson refers to as a 'quasi-course of employment' injury. Quasi-course of employment activities are activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. This was recognized as an issue of first impression in the District in the case of Nixon v. District of Columbia Dept. of Emp. Serv., 954 A.2d 1016 (D.C. 2008), but the issue has never been reached by the Compensation Review Board.
The Court noted that the Board incorrectly directed the ALJ to determine if the psychological injury resulted from a strictly personal reaction by the claimant. The Court stated that contrary to the Board's assertion, employers must accept employees as they find them. The controlling standard is that the Workers' Compensation Act neither requires, nor permits, use of an objective test under which an employee seeking compensation for psychological injuries must show that an average person not predisposed to such injury would have suffered a similar injury.
Although the Court has rejected the use of an objective standard for evaluating an individual's reaction to workplace conditions, it did not eliminate the requirement that the workplace conditions that a petitioner asserts caused the injury must exist in reality. In mental-mental cases a test for the existence of actual workplace stressors must be one verifying the factual reality of the stressors in the workplace environment, rather than one requiring the claimant to prove that a hypothetical average or healthy person would have suffered a similar psychological injury.
Posted by David B. Stratton on 01/09/2012 at 02:43 PM
District of Columbia •
Workers Compensation •
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Negligence per se based on traffic regulations: A D.C. refresher
Two recent opinions from the U.S. District Court for the District of Columbia provide a refresher on D.C. law concerning negligence per se based on the violation of D.C. traffic regulations.
In Mahnke v. Washington Metropolitan Area Transit Authority, No. 10-0021 (D.D.C. Oct. 20, 2011), the plaintiff was a pedestrian who marched out into a crosswalk when she had the "walk" light, and was hit by a WMATA bus which had started through the eight lane intersection on a yellow light. The accident was videotaped, and WMATA filed a motion for summary judgment on the grounds that the plaintiff was contributorily negligent for not looking for oncoming traffic before stepping off the curb as the video appeared to show. As the bus neared the intersection, the bus driver saw the traffic light change from green to yellow, and she accelerated in an effort to clear the eight-lane intersection. WMATA conceded that the light turned red before the bus exited the intersection. The video showed that the bus was halfway through the intersection when the plaintiff entered the crosswalk. The plaintiff sustained numerous injuries, allegedly including a fractured, skull, epidural hematoma, broken clavicle, fractured ribs, collapsed lung, pelvis fracture, and traumatic brain injuries, and she claimed $20 million in damages as of the time of the trial court's opinion.
The plaintiff not only denied that summary judgment could be granted based on contributory negligence, but also filed a motion in limine to prevent WMATA from raising the contributory negligence defense at trial. The parties also filed 11 other motions in limine to preclude the admission of certain evidence at trial.
The trial court denied WMATA's motion for summary judgment because the parties disputed whether the plaintiff checked for oncoming traffic before crossing the street, whether the plaintiff would have been able to see the WMATA bus if she had looked for oncoming traffic, and whether the WMATA bus driver had the last clear chance to avoid the accident. Among other things, when the plaintiff stepped off the curb after waiting for the "walk" sign, another pedestrian stepped off the curb with her and might have blocked her view. (The other pedestrian saw the bus coming and stepped back onto the curb.)
The trial court denied the plaintiff's motion in limine to preclude a contributory negligence defense because the determination of whether the defendant was negligent per se rests on jury determinations, and in any event, a defendant's violations of traffic regulations do not bar a contributory negligence defense. The trial court noted, among other things, that the D.C. Court of Appeals has explicitly stated that there is "no merit" to the contention that a "violation of a traffic regulation precludes application of a contributory negligence defense." Massengale v. Pitts, 737 A.2d 1029, 1032 n.1 (D.C. 1999).
Following the Mahnke opinion, the case settled before trial.
In Sibert-Dean v. Washington Metropolitan Area Transit Authority v. Woodson, No. 08-2145 (D.D.C. Dec. 4, 2011), the trial court denied WMATA's post-trial motion for a new trial, based on the court's instructions to the jury that a violation of any of the seven traffic regulations applicable in this case would constitute negligence per se.
This case involved a WMATA bus accident, in which a WMATA bus collided with Woodson's car, when Woodson made a left turn in front of the bus in order to enter a grocery store parking lot. The plaintiff was a passenger on the bus, and injured her shoulder and neck in the accident. Prior to trial, WMATA asserted that Woodson]s violation of traffic regulations constituted negligence per se and evidence of negligence. The traffic regulations included 18 DCMR sec. 2213.4, which provides that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." The plaintiff requested inclusion of 18 DCMR sec. 2206.1, which provides that "[n]o person shall start a vehicle which is stopped, standing, or parked unless and until the movement can be made with reasonable safety."
At a charging conference near the conclusion of the trial, the trial court concluded that the negligence per se instruction was appropriate. However, before the jury was instructed, WMATA objected to the negligence per se instruction, on the grounds that traffic regulations are generally not the type of regulation for which a violation creates negligence per se. The trial court overruled the objection.
At trial, the jury returned a verdict against WMATA and the third party defendant, Woodson, concluding that both defendants' negligence proximately caused the accident, and awarded the plaintiff $675,000 in damages.
In its motion for new trial, WMATA argued that the trial court erred when it included traffic regulations 18 DCMR secs. 2213.4 and 2206.1 among the seven traffic regulations in the Court's negligence per se instruction. WMATA's argument was that these two regulations are inappropriate for a negligence per se instruction because they do not establish specific guidelines governing the defendant's actions, but merely reiterate the duty of care established by the common law.
The trial court rejected this argument. It began by noting that in the District of Columbia, unexplained violations of traffic regulations may constitute negligence per se. D.C. courts have repeatedly held that the unexplained violation of a traffic regulation enacted to prevent the type of accident that occurred constitutes negligence per se. The trial court agreed with the proposition that in general, a statute or regulation offered to establish a standard for negligence per se purposes must not merely repeat the common law duty of reasonable care, but must set forth specific guidelines to govern behavior. However, the trial court found that the regulations objected to in this case are appropriate for a negligence per se instruction. The Court found that:
Contrary to WMATA's contention, 18 DCMR ?? 2213.4 and 2206.1 prescribe a sufficiently specific standard of care for vehicle operators to warrant a negligence per se instruction. Traffic Regulation 2213.4 states that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." This regulation does more than simply require a driver to pay attention, but demands "full attention," which, as the plaintiff notes, requires a driver to "not be distracted, and not be engaging in other activities while driving (certainly a problem in these days of multitasking and technology)."
Similarly, 18 DCMR ? 2206.1 also sets forth a specific standard of conduct. The regulation states that "[n]o person shall start a vehicle which is stopped, standing or parked unless and until the movement can be made with reasonable safety." The plaintiff correctly observes that Regulation 2206.1 "specifically applies to beginning to move your vehicle before it is safe to do so. It speaks to a driver understanding his/her surroundings and checking to make sure everything is safe before starting."
The trial court also found that these regulations were similar in specificity to the traffic regulations which the D.C. Circuit determined warranted a negligence per se instruction in Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C. Cir. 1997). Among those regulations were 19 DCMR sec 2200.3, which states, in relevant part, that "no person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing," and sec. 2200.5, which provides that "[t]he driver of every vehicle shall, consistent with requirements of this section, drive at an appropriate reduced speed when approaching and crossing an intersection . . . Or by reason of weather . . . ."
Finally, the trial court observed that WMATA presented no evidence at trial to establish that its bus driver's failure to comply with applicable regulations was excusable. A jury should be instructed that the violation of a statute is merely evidence of negligence, and not negligence as a matter of law, if a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard. The trial court found that the testimony cited by WMATA did not offer an excuse or explanation for violation of traffic regulations, but rather merely reflected an effort to prove that no violation occurred. In other words, a denial is not an explanation. An excuse or explanation can only arise if a violation did occur, therefore a denial is obviously not the sort of explanation that rebuts a negligence per se charge.
Posted by David B. Stratton on 01/01/2012 at 11:17 PM
Defenses •
District of Columbia •
Motor Vehicle Accidents •
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Premises Liability: Maryland Court of Appeals clarifies assumption of risk defense in black ice case
In George Poole v. Coakley Williams Construction, Inc., et al., No. 130 Sept. Term 2010 (Oct. 27, 2011), and Mary Thomas v. Panco Management of Maryland, LLC, No. 133 Sept. Term 2010 (Oct. 31, 2011) the Court of Appeals overruled the Court of Special Appeals decision in Mary Thomas v. Panco Management of Maryland, LLC, et al., 195 Md. App. 245; 6 A.3d 304 (Oct. 1, 2010) and disavowed Allen v. Marriott Worldwide Corp., 183 Md. App. 460, 961 A.2d 1141 (2008), cert. denied, 408 Md. 149, 968 A.2d 1065 (2009), to clarify that in order for a plaintiff to have assumed the risk of his or her injuries as a matter of law, the plaintiff "must" have known that the risk was actually present, not that he or she "would", "should", or "could" have known that the risk "might well be present."
There are three requirements that a defendant must prove to establish the defense of assumption of the risk: (1) that plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. The question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is ordinarily a question for the jury, unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff.
In both the Poole and Thomas cases, the plaintiffs slipped and fell on "black ice" which is distinguishable from "white ice." White ice, such as snow or ice layer, is visible. On the other hand, black ice, even though common knowledge dictates that ice is slippery, is not perceivable or knowable by its nature until the moment it is encountered and experienced.
In Poole, the plaintiff was walking through the parking lot toward the back entrance of his place of employment when he slipped and fell on "black ice" while wading through a stream of water that created a path through an otherwise icy parking lot. Plaintiff alleged that water was being pumped into the parking lot where he was walking due to construction, resulting in a stream of water an inch deep and between two and three free wide that ran through the lot to a drain. Plaintiff testified that, the day before his injury, there was water and ice in the same general area where he fell and that he had noticed that the area was slippery and even warned a co-worker to be careful. Relying on Allen, the trial court granted summary judgment in favor of the defendants on the basis that the plaintiff had knowledge of the icy conditions in the area and choose to proceed under those conditions, thereby assuming the risk of danger.
In Thomas, Ms. Thomas sued the owner and management company of her apartment complex for personal injuries that arose when she fell on "black ice" on the sidewalk in front of her apartment building and fractured her right leg. The trial court granted judgment for defendants applying the rationale in Allen. On appeal, the Court of Special Appeals affirmed the trial court applying Allen and held that even though Ms. Thomas did not have an alternative safe path from her apartment to her car, she did have a safe alternative course of action, which was to not encounter the known risk at all, such that her decision to leave her apartment constituted voluntarily encountering the risk which satisfied the third and final prong.
In Poole and Thomas, the Court of Appeals reversed the granting of judgment as a matter of law on two grounds: (1) it invaded the province of the jury where there was a disputed question of material fact concerning the plaintiff's knowledge of the risk of danger posed by black ice; and (2) the lower court's reliance on Allen, an outlier case that altered the prior meaning and effect of the knowledge prong of the assumption of the risk test.
The Court of Appeals disavowed the reasoning in Allen, concluding that the constructive knowledge test, with an objective standard borrowed from contributory negligence, improperly invades the province of the jury. Thus, to the extent that Allen suggested that the compilation of facts and inferences, amounting to less than actual knowledge, may be sufficient to impute knowledge to a plaintiff as a matter of law, that case is overruled. Instead, the Court reaffirmed the standard stated in Schroyer v. McNeal, 323 Md. 275, 592 A.2d 1119 (1991), that "the doctrine of assumption of the risk will not be applied [as a matter of law] unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff." 323 Md. at 283, 592 A.2d at 1123 (emphasis added).
The issue of assumption of the risk rests upon the plaintiff's subjective knowledge. But because the focus is on what the plaintiff actually knew, understood and appreciated, the issue is ordinarily left to the jury to resolve. However, Maryland law has historically suggested that the trial judge apply an "objective standard" when determining the appropriateness of applying the defense as a matter of law. The objective standard language stands for the proposition that there are certain risks which any one of adult age must be taken to appreciate, and, in those cases, a simple denial from plaintiff concerning his or her knowledge of the risk will not be sufficient to avoid judgment for the defendant as a matter of law. Thus, in certain circumstances, "when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court." Id. These types of dangers, the "certain risks which anyone of adult age must be taken to appreciate" include such things as "the danger of slipping on ice, of falling through unguarded openings or lifting heavy objects . . . and doubtless many others."
The Court noted that in the cases where the Court of Appeals has approved the entry of judgment as a matter of law based upon assumption of the risk, the danger has been one that any person in the plaintiff's position must have understood, meaning either a foreseeable consequence of engaging in an activity, or an otherwise patent or obvious danger. When a risk is a foreseeable consequence of engaging in a particular activity, there is an implied consent to relieve others of liability for injury and assumption of the risk may be established as a matter of law. The primary distinction between Poole and Thomas and the cases in which the Court approved the grant of judgment, was whether the plaintiff encountered "white ice", which is visible, or "black ice", which is not perceivable until the moment of experience. In cases involving black ice, the Court has consistently held that a plaintiff does not consent to waive claims for liability beyond "those risks which might reasonably have been expected to exist."
In Poole and Thomas, the Court found that the record suggested that the presence of black ice was more akin to an "unusual danger", so that consideration by the trier of fact was necessary to determine if it was "assumed or not." Therefore, for a plaintiff to have knowledge of the risk, as a matter of law, there must be undisputed evidence that he or she had actual knowledge of the risk prior to its encounter. Actual knowledge can be proven, for example, by evidence of the particular plaintiff's subjective knowledge of a risk, e.g. previous experience with or sensor perception of the danger, or objective knowledge of a risk that the law deems "so obvious that it could not have been encountered wittingly."
Accordingly, the Court of Appeals held that the trial Courts in Poole and Thomas should not have concluded that the plaintiffs actually knew of the risk of slipping on "black ice" as a matter of law, because it is unclear whether they had subjective knowledge of the risk, nor is the risk one that "a person of normal intelligence" in the positions of plaintiffs "must have understood."
Posted by Robert D. Anderson on 12/19/2011 at 10:33 PM
Defenses •
Maryland •
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Independent contractor rule in D.C.: WMATA not liable for tuberculosis exposure
In a recent case before the District Court for the District of Columbia, the plaintiff unsuccessfully attempted to invoke two exceptions to the "independent contractor rule." Andrews v. Wash. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 119916 (D.D.C. 2011). That rule provides that a principal is generally not liable for the actions of his independent contractor.
Mr. Andrews filed suit against the Washington Metropolitan Area Transit Authority (WMATA), asserting that a driver of a MetroAccess bus was infected with tuberculosis and exposed his passengers to this disease. WMATA filed a motion to dismiss, on the grounds that the driver was an employee of an independent contractor, MV Transportation, Inc. This motion was later converted into a motion for summary judgment.
Mr. Andrews asked the court to find WMATA liable for the actions of its independent contractor on two grounds. First, Mr. Andrews argued that the independent contractor was engaged in an inherently dangerous activity. Second, MV Transportation was an apparent agent of WMATA because WMATA holds out the MetroAccess bus service as being part of a network of services provided by WMATA.
The court granted WMATA's motion to dismiss. First, this was not an inherently dangerous activity. Driving a bus does not usually pose a danger to others when the driver exercises reasonable care. Even though the particular driver who was infected with tuberculosis posed a risk to passengers, there was no reason WMATA should have known of this risk.
Mr. Andrews' claim of apparent agency was also rejected because it was not supported by competent evidence. The court noted that apparent agency usually does not apply to a government entity as a matter of law, because someone who enters into a formal arrangement with the government bears the burden of ascertaining that "he who purports to act for the government stays within the bounds of his authority." However, the court stated that passengers on a MetroAccess bus would not bear this burden, given the limited and informal nature of their interaction with WMATA. Therefore, if Mr. Andrews had produced evidence in support of his apparent agency argument, he might have prevailed.
Posted by Raphael J. Cohen on 12/16/2011 at 11:12 PM
District of Columbia •
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Federal jurisdiction and venue: New Legislation Takes Effect
On December 7, 2011, the President signed into law the Federal Courts Jurisdiction and Venue Clarification Act. 112 P.L. 63. The Act is applicable to all actions filed on or after January 6, 2012. This new law makes small but important changes to the procedure for removal to federal court and clarifies the scope of diversity jurisdiction. It also expands federal courts' authority to grant a transfer of venue for the convenience of parties and witnesses.
With respect to removal, the Act clarifies a confusing issue that arises when a plaintiff sues multiple defendants, and different defendants are served with the complaint at different times. Under the new statute, each defendant has thirty days after being served with the complaint to file a notice of removal. 28 USCS sec. 1446(b)(2)(B)-(C). Previously, however, the federal Circuits were split. Some Circuits adopted the rule that is now mandated by the Act. See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008). Others, including the 4th Circuit and the D.C. Circuit, held that a notice of removal cannot be filed more than thirty days after the first defendant is served with the complaint. Barbour v. Int'l Union, 594 F.3d 315 (4th Cir. 2010); Princeton Running Co. v. Williams, 2006 U.S. Dist. LEXIS 62622 (D.D.C. 2006); Phillips v. Corr. Corp. of Am., 407 F. Supp. 2d 18 (D.D.C. 2005). Thus, in cases where the second defendant was served more than thirty days after the first defendant, the second defendant would have no opportunity to remove the case to federal court. Recognizing the unfairness of this approach, the new law gives each defendant the same amount of time for removal.
In addition, the Act curtails removal jurisdiction in cases involving both state and federal claims. The statute now provides that when the claims under state law are unrelated to the federal claims - that is, when they do not arise from a common nucleus of operative fact - the court must sever the state law claims and remand them to state court. 28 USCS sec. 1441(c)(2). The previous version of the statute gave federal courts discretion to either decide the state law claims in federal court or to remand. However, the constitutionality of this rule had been called into question. See Salei v. Boardwalk Regency Corp., 913 F. Supp. 993 (E.D. Mich. 1996).
The new law also makes several changes to removal jurisdiction in diversity cases. The Act provides that the amount in controversy is legislatively deemed to be the amount demanded in the complaint. 28 USCS sec. 1446(c)(2). If the amount in controversy is not clear from the face of the complaint, then the defendant seeking removal must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. The same rule applies if the complaint demands less than $75,000, but state law permits recovery in excess of the amount demanded.
If the plaintiff's discovery responses indicate that the amount in controversy requirement has been met, the deadline for filing a notice of removal is extended until thirty days after receipt of the discovery responses. Sec. 1446(c)(3). However, the extended deadline cannot be more than one year after the complaint is filed, unless the plaintiff deliberately failed to disclose the amount in controversy in order to prevent removal or otherwise acted in bad faith.
Additionally, the Act addresses the status of resident aliens and foreign corporations for diversity jurisdiction purposes. Id., sec. 1332(a)(2), (c). These provisions are designed to limit the ability of foreign citizens and corporations to invoke diversity jurisdiction in order to sue each other in federal court.
Finally, the new law contains a number of provisions relating to federal court venue. The Act permits federal courts to grant a change of venue to almost any federal district or division if all parties consent. Id., sec. 1404(a). The previous version of the statute would not permit a case to be transferred to a venue in which it could not have originally been brought. The Act also eliminates the distinction between diversity and federal question jurisdiction for venue purposes. Id., sec. 1391(b).
The changes mandated by the Act are technical but highly significant. One commentator has called them "the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990." Although they are plainly an attempt to clarify the complex rules governing federal jurisdiction and venue, they will almost certainly raise their own complexities, requiring further revisions of the Judicial Code. And while none of these provisions have been tested or interpreted by the courts, they will be the rules of the road for the foreseeable future.
Posted by Raphael J. Cohen on 12/16/2011 at 05:44 PM
Federal Civil Procedure •
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Insurer’s Late Notice Defense in Virginia: Dabney v. Augusta Mutual Ins. Co.
In Dabney v. Augusta Mutual Insurance Co., 282 Va. 78, 710 S.E.2d 726 (2011), the Virginia Supreme Court held that the question whether the insured gave the insurer notice of the claim "as soon as is practicable" was a question for the jury, notwithstanding the insured's 254-day delay in providing notice. The Court reversed the trial court's award of summary judgment to the insurer, because the trial court only focused on the length of the delay, and failed to consider the facts and circumstances surrounding the delay.
The Virginia Supreme Court reasoned that the timeliness of the notice of the claim must be considered in light of all the facts and circumstances presented in the case. There were extenuating circumstances here: The insured was unaware of the claim before her death; and the address for notice in the insurance policy had been changed, unbeknownst to the executor of the insured's estate, resulting in the initial written of notice letter being sent to the wrong address, and yet the letter was never returned to sender or acknowledged.
Given the extenuating circumstances, whether the notice was timely under the policy was a question of fact upon which reasonable minds could disagree, and the trial court erred in ruling that the notice was untimely as a matter of law.
Elsewhere in the decision, the Virginia Supreme Court held that the trial court correctly held that the plaintiff was limited to the alleged date of notice plead in the amended complaint. The Court emphasized that the law in Virginia is well established that a court cannot enter judgment based on facts that are not alleged in the parties' pleadings. The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.
However, the Court noted that the plaintiff's counsel did not argue to the circuit court that, pursuant to Code sec. 8.01-377, its pleading could have been amended to conform to the evidence presented at trial. Because the Virginia Supreme Court remanded the case for trial, this raised the possibility that plaintiff's counsel still could amend the pleading to allege alternative dates of notice.
The alternative dates of notice were a key underlying issue at trial, because of the operation of Virginia Code sec. 38.2-2226, which states in pertinent part that:
Whenever any insurer on a policy of liability insurance discovers a breach of the terms or conditions of the insurance contract by the insured, the insurer shall notify the claimant or the claimant's counsel of the breach. Notification shall be given within forty-five days after discovery by the insurer of the breach or of the claim, whichever is later. . . . Failure to give the notice within forty-five days will result in a waiver of the defense based on such breach to the extent of the claim by operation of law.
Id.
Thus, if the plaintiff could show that the insurer had received notice of the claim earlier than 45 days from the time that the insurer gave the claimant notice of the late notice defense, the defense would be waived as a matter of law under this statute. Virginia courts have been strict in applying such waiver. See, e.g., Aetna Casualty & Surety Co. v. Compass & Anchor Club, Inc., 33 Va. Cir. 235 (Feb. 24, 1994). See also Morrell v. Nationwide Mut. Fire Inc. Co., 188 F.3d 218 (4th Cir. 1999).
For those reasons, whether or not the trial court would, on remand, allow an amendment of the pleadings to conform to the evidence presented at trial, could mean the difference between victory or defeat for the parties.
All insurers doing business in Virginia and their counsel should keep the notification requirements of Va. Code sec. 38.2-2226 in mind in any claim involving a late notice defense or any other claim involving alleged breach of the conditions of the insurance policy as a defense.
Posted by David B. Stratton on 11/30/2011 at 10:32 PM
Defenses •
Insurance •
Virginia •
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