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Volume XXXI, Number 5October/November 2005

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News JournalTHE VIRGINIA BAR ASSOCIATIONVOLUME XXXI, ISSUE 5 • OCTOBER/NOVEMBER 2005

4 • Roger D. Groot, 1942-2005

5 • Hurricane Katrina Response:Legal community donates dollars, steps forwardin volunteering services to storm-ravaged areas

10 • Legal Focus/Civil Litigation:Getting a Handle on the Basics of ‘Hybrid’ Witnessesin Virginia Federal and State PracticeJon M. Talotta and Michael M. Smith

10 • Legal Focus/Civil Litigation:Preserving Your Client’s Claim for Attorneys’ Fees:Recognizing When a Simple Claim for Attorneys’ FeesIs Not So SimpleRobert A. Angle and Michael E. Lacy

13 • Legal Focus/Civil Litigation:Social Compact as Law: The Workers’ Compensation Act& the Wicked Sisters of the Common LawHon. D. Arthur Kelsey

22 • News in Brief22 • Professional Notices23 • Classifieds24 • Calendar

VBA• •

VBA NEWS JOURNAL, the official publication of The Virginia Bar Association (ISSN 1522-0974,USPS 093-110), is published six times per year (December/January, February/March,April/May, June/July, August/September and October/November). Membership duesinclude the cost of one subscription to each member of the Association. Subscription priceto others, $30 per year. Statements or expressions of opinion appearing herein are thoseof the authors and not necessarily those of the Association, and likewise the publicationof any advertisement is not to be construed as an endorsement of the product or serviceunless specifically stated in the advertisement that there is such approval or endorsement.Periodicals postage paid at Richmond, VA 23232. POSTMASTER: Send address changesto The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219.

Suite 1120701 East Franklin Street

Richmond, VA 23219(804) 644-0041

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Web: www.vba.org

OUR MISSIONThe Virginia Bar Association is a voluntaryorganization of Virginia lawyerscommitted to serving the public and thelegal profession by promoting the higheststandards of integrity, professionalism,and excellence in the legal profession;working to improve the law and theadministration of justice; and advancingcollegial relations among lawyers.

On the Cover: The Charles City County Courthouse (mid-1750s), photograph byJohn O. Peters. One hundred forty photographs of Virginia courthouses are contained inVirginia’s Historic Courthouses, written by John O. and Margaret T. Peters with a forewordby the late Justice Lewis F. Powell Jr.; photographs by John O. Peters; published byUniversity Press of Charlottesville; and sponsored by The Virginia Bar Association. Toorder the book, call the VBA at (804) 644-0041 or 1-800-644-0987.

PresidentJames V. Meath, RichmondPresident -electWilliam R. Van Buren III, NorfolkChair, Board of GovernorsGlenn C. Lewis, Washington, D.C.Immediate Past PresidentE. Tazewell Ellett, AlexandriaLaw Practice Management Division ChairGant Redmon, AlexandriaYoung Lawyers Division ChairR. Braxton Hill IV, RichmondYoung Lawyers Division Chair-electLori D. Thompson, RoanokeBoard of GovernorsThe Officers andHon. William G. Broaddus, RichmondJohn D. Epps, RichmondCheshire I. Eveleigh, Virginia BeachWilliam E. Franczek, NorfolkMarilynn C. Goss, RichmondProf. Roger D. Groot, LexingtonJ. Lee E. Osborne, RoanokeG. Michael Pace Jr., RoanokeStephen C. Price, LeesburgGlenn W. Pulley, DanvilleNancy N. Rogers, RichmondHon. Pamela Meade Sargent, AbingdonHon. Diane M. Strickland, RoanokeMember of ABA House of DelegatesDavid Craig Landin, RichmondLegislative CounselHon. Anthony F. Troy, RichmondHon. Robert B. Jones Jr., RichmondAnne Leigh Kerr, RichmondExecutive Vice PresidentCharles Breckenridge Arrington Jr.Executive DirectorGuy K. TowerDirector of MeetingsBrenda J. DillardDirector of FinanceAmy B. CatheyVBA News Journal EditorCaroline B. Cardwell

4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL OCTOBER/NOVEMBER 2005

ROGER D. GROOT, 1942-2005

Some deaths are harder for the living to bear thanothers. At the suggestion of my good friend and successor,Guy Tower, who will be here tomorrow with you, I spentsome reflective time yesterday reading through thevolumes of comments on the W&L Law School websitememorial pages. Here’s what I learned and what Iknow.

Roger Groot was a goodly

Lawyer Fierce opponent

Teacher Grandfather

Provocateur Son

Advocate Hunter

Challenger Fisherman

Mentor Outdoorsman

Friend Analyst

Scholar Raconteur

Husband Companion

Father Exemplar

Churchman Pro Bono Servant

Counselor Community Servant

Reliable ally Storyteller

Sly humorist

A man’s man

A woman’s delight

Friend to the downtrodden

Civil libertarian

Constitutionalist

Champion of prisoners and the accused

And from my personal perspective, as Executive of theBar Association,

Staunch Leader of the organized bar.

He worked with many bar groups but none so faithfullyas he did with The Virginia Bar Association.

As you must know, the VBA has led many causes in theinterest of law reform and the administration of justiceover the years, but Roger Groot personally changed theemphasis of the VBA in modern times to prioritize theinterest of the constitutional conduct of the criminaldefense system so long neglected and underfunded inVirginia.

He chaired the legislative committee of the VBACriminal Law Section; he served as the most effectiveSection Chair in memory. You here know he was intenselyinvolved in establishing the current credibility of thisannual workshop which is in its 13th edition, the thirdlargest VBA-related meeting each year.

Roger came on the Board of the VBA four years ago asour Law Faculty representative and served in that keyrole longer than has anyone else.

But the critical thing was not positions held, but theleadership made effective. He has led the VBA advocacyon indigent defense both as to public defenders andappointed counsel—as to compensation and as to thesubstantive law of such representations. These are nowthe unquestioned first priority of our Association as weenter the 2006 General Assembly session. We hope forsuccess. If there is, we need to realize Roger was theindispensable man in this calling. We cannot let ourefforts flag or fail despite his loss.

Returning to the Bard, we can say:

Roger Groot was a man. Take him for all in all. Weshall not look upon his like again.

Amen.

To the 13th AnnualCapital Defense WorkshopNovember 17, 2005

Breck ArringtonExecutive Vice PresidentThe Virginia Bar Association

“All that lives must die, passing through natureto eternity.”

OCTOBER/NOVEMBER 2005 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5

Legal community donates dollars, steps forwardin volunteering services to storm-ravaged areas

HURRICANE KATRINA RESPONSE

VSB President Phil Anderson and VBA President Jim Meath display “checks” for$36,000 each from the VBA Foundation’s Hurricane Katrina Legal AssistanceFund to the legal assistance funds of the Mississippi Bar Foundation and theLouisiana State Bar Association (set up through the Baton Rouge Bar Foundation).

On August 31, The Virginia BarAssociation announced the creationof a fund, through the VBAFoundation, to rebuild the legalinfrastructure of the Gulf Coast stateshit by Hurricane Katrina.

Within hours, Virginia’s legalcommunity began an unprecedentedoutpouring of generosity of monetarygifts and volunteer time, resulting inthe largest relief fund in VBA historywhich far surpassed previousassistance efforts.

Buoyed by strong support from theVirginia State Bar, well-placedarticles in the Richmond Times-Dispatch and Virginia LawyersWeekly, and tireless behind-the-scenes work to promote the fund andfacilitate contributions, the VBAFoundation’s Hurricane KatrinaLegal Assistance Fund has receivedmore than $96,000 to date.

While past VBA legal relief funddrives had achieved measurablelevels of success, this fundraisingeffort was driven by the enormity ofthe Katrina disaster, as reportedround-the-clock by news media, andthe effects of the devastation onrelatives, friends and colleagues ofVBA members and staff.

The ability of the VBA tocommunicate electronically withmembers, unavailable in earlierfundraising efforts, also played animportant role. An online donationform, set up on the VBA website inthe fund’s first week of existence,brought in several hundred dollarswithin minutes.

One of the largest contributions,of more than $28,000, came fromthe Williams Mullen Foundation,through the efforts of VBA PresidentJim Meath, a partner in the law firm.

Donations of $36,000 each were

sent to the Mississippi BarFoundation and the Baton Rouge BarFoundation (home of the LouisianaState Bar Association’s legal relieffund, as the LSBA offices were inflooded-out downtown New Orleans)in early October. The Alabama bar,while affected by the hurricane inseveral areas of the state, directedcontributions to the efforts in themore heavily damaged neighboringstates.

Contributions continued to roll inthrough October, thanks to follow-up articles in such media as TheFree Lance-Star and Richmond.com.The Lewis Law Firm and Glenn Lewisfamily made a generous contributionto the secondary phase of the fund.Additional donations will be shared,with the concurrence of Mississippi,with the Louisiana bar fund as themost hard-hit state legal system.

Support for provision of legalservices in the Gulf Coast states wentbeyond the financial. As in past crises,

the VBA Young Lawyers DivisionDisaster Legal Assistance Committeejoined with the VSB Young LawyersConference Emergency Legal ServicesCommittee to assess the situation andrecruit lawyer-volunteers for legalassistance efforts.

By mid-October, more than 400Virginia lawyers had signed on asproviders of pro bono publico legalservices to Hurricane Katrinasurvivors, and the VBA and VSBcommittees, working together, had heldthree volunteer training sessions.

The Virginia Bar AssociationFoundation is organized as a Section501(c)(3) entity within the InternalRevenue Code to conduct andsupport charitable and educationalpurposes of the VBA.

In addition to the VBA FoundationPatron Program, which recognizescontributors at three giving levels,the Foundation welcomes gifts inmemory of deceased family, friendsand colleagues, or in honor of a


C.W. AdlerHon. Rossie D. Alston Jr.Phillip AndersonBriggs W. AndrewsAnonymousMarjorie L. ArnheimAnna H. & Breck ArringtonRobert J. BarryKieran H. BartleyRobin W. BaxterRuth S. BerginLisa A. BertiniD.E. BoehlingRhonda D. Bond-CollinsCarolyn A. H. BourdowLeigh Anne BowlingHon. William G. BroaddusBurke, Graybeal & HammerJack W. Burtch Jr.Caroline B. CardwellElizabeth B. CarrollCarter, Osborne & MillerTara L. CaseyAmy B. CatheyR. Paul Childress Jr.Childress, Gould & Russell, PCDonna S. ClarkR. Clinton Clary Jr.James K. CluveriusBarbara Rose CohenEdwin S. CohenCranwell & Moore, PLCAnn K. CrenshawSteven L. Dalle MuraJohn N. Dalton, Jr., PCDonna R. DeloriaRajan A. DesaiAlan DocktermanAnn S. DodsonWilliam D. Dolan III

Kaufman & CanolesAnne Leigh KerrEric G. KingC. Shireen KirkTracy S. Kissler, PCStephen K. KitchenA. L. Knighton Jr.Charles E. LandThe Lewis Family and

The Lewis Law Firm, PCThomson LipscombRalph LohmannAudrey MarcelloSandra S. MarchenkoWade W. MassieJames C. McCaaRobert M. McDermottM.S. McHughMcLean Bar AssociationBeth V. McMahonBarry I. MeekDavid S. MercerVera L. MillerHon. Wiley F. MitchellKenneth B. E. MonteroFrances B. MoodyThurston R. MooreRobert F. MoormanPaula S. MorganHeather A. MullenEdmond P. MurphySean F. MurphyCarol S. NanceSharon E. NolleyShirley Norman-TaylorMichael C. NormileChristopher C. NorthBrian M. O’ConnorG. Michael Pace Jr.Janet S. Page

Melissa A. DowdCarroll E. DubucW. Jeffrey EdwardsE. Tazewell EllettHeather H. Embrey, LLCPatricia EppsJohn EppsKaren C. FagelsonJory H. FisherFrankl Miller & Webb, LLPJeanne F. FranklinMary S. FrayserRobert L. FreedMichael V. FrettFrith, Anderson & PeakeGentry Locke Rakes & Moore LLPJackson B. GilbertMarvin S. GittesJoseph W. GorrellBarbara W. Goshorn, PCKaren A. GouldRobert S. GreenliefPhillip S. Griffin, PCCarolyn GrimesRichard E. HagertyMichelle HalaszAmy L. HarmanHarman, Claytor, Corrigan & Wellman, PCTherese K. HathawayMark S. HedbergHefty & Wiley, P.C.Lucy P. HomillerDennis M. Hottell & Assocs.Michael L. Houliston, P.C.A.E. Dick HowardBarry W. HunterEppa HuntonHunton & Williams LLPPhillip L. HusbandJohn Paul Jones

Contributors to the Hurricane Katrina Legal AssistanceFund of The Virginia Bar Association Foundation

special person or event, are alsowelcomed by the VBA Foundation.All gifts are fully deductible asprovided by IRS guidelines.

For more details, visit www.vba.orgor call the VBA office at (804) 644-0041. VBA

See below for a list of contributors asof November 15, 2005. Additional giftswill be noted in future issues of the VBANews Journal.

The VBA Foundation Patron Program is designed to elicit supportfor the good works of the Foundation from VBA members andothers. There are three levels of giving, each of which receivesparticular recognition: Leadership Patron ($500), SustainingPatron ($250), and Patron ($100). Visit www.vba.org or call(804) 644-0041 for more details.


Sharon E. PandakPatrick Henry LLPGordon P. PeytonBarbara A. QueenCameron M. RadfordCarol D. RasnicGant RedmonRoss C. ReevesWilliam M. RichardsonJohn W. RichardsonJennifer A. RivardJ. Barbour Rixey, PCHon. John F. RixeyNancy N. RogersPalmer S. RutherfordMargaret I. SannerRichard R. Saunders Jr.Stephen M. SayersGilbert E. SchillJohn J. SeichterJane Whitt SellersHarry Shaia Jr.George Warren Shanks, PCHarriette H. ShiversWinthrop A. Short Jr.John T. ShraderCarol A. SigmondHunter W. Sims Jr.Thomas G. Slater Jr.Edith P. Slusher

Cheryl Watson SmithAnna R. SmithWilliam S. Smithers Jr.Mary I. SnyderSnyder & Snyder PLCJack Spain Jr.Bruce C. StockburgerHon. Diane StricklandFrederick R. TaylorTaylor & Walker, PCKathryn A. TeachoutLori D. ThompsonRobin L. Tolerton, PCRandolph F. TottenGuy K. TowerHon. Winship TowerTimothy O. Trant IIMary Ellen TsekosVicki O. TuckerWilliam R. Van Buren IIIThe Virginia Bar AssociationVirginia Association

of Defense AttorneysGerard E.W. VoyerWashington County

Bar AssociationDiana L. WhiteChristopher J. WiemkenJonathan M. WilanWiley Rein & Fielding, LLP

Wilks, Alper & HarwoodSusan WilliamsWilliams Mullen FoundationWilliam T. WilsonWitmeyer & Allen PLCWolcott Rivers GatesRobert C. Wood III

as of November 15, 2005

More informationabout the

Hurricane Katrina LegalAssistance Fund

ofThe Virginia Bar

Association Foundationmay be found online

atwww.vba.org/

disasterresponse.htm

The Virginia Bar Association Foundationis organized as a Section 501(c)(3) entity

within the Internal Revenue Codeto conduct and support charitable

and educational purposesof The Virginia Bar Association.

Some Recent VBA Foundation Programs:13th Annual Capital Defense Workshop

Domestic Violence ProjectGuardian Ad Litem Standards

Nonprofit Legal Support ProgramPro Bono Hotlines

Rules of Professional ConductPublication for In-House Lawyers

Wills for Heroes

All gifts to the VBA Foundation are fully deductibleas provided by IRS guidelines.


LEGAL FOCUS/CIVIL LITIGATION

Getting a Handle on the Basics of ‘Hybrid’ Witnessesin Virginia Federal and State Practiceby Jon M. Talotta and Michael M. Smith

In many cases, a client’s employee(or ongoing professional servicesprovider, such as a treating physician)will possess the specialized knowledge,skill or experience to provide opiniontestimony as well as be able to testifyabout relevant facts based on first-hand knowledge. The use of a so-called“hybrid” (i.e., fact and expert) witnesscan enhance the effectiveness ofopinion testimony where the opinionwas formed from first-hand knowledgerather than a subsequent review of therelevant facts. Hybrid witnesses alsocan reduce both the costs otherwiseassociated with retaining a litigationexpert and the time required to bringthe hybrid witness up to speed on therelevant facts and issues. With suchattractive benefits, it is little wonderthat the use of hybrid witnesses isgrowing.

Yet, the decision to designate anemployee (or professional servicesprovider) as a hybrid witness raisesissues for both counsel and opposingcounsel. For example, how do stateand federal courts in Virginia treathybrid witnesses? How should awitness be designated during pre-trialdiscovery (i.e., as a hybrid witness ora retained expert) if at all? Whatdiscovery should opposing counselconduct? Answering these and otherquestions often involves some trickyforecasting.

Hybrid or Expert?A “hybrid” witness is a fact witness

who also happens to have the requisiteknowledge, skill or expertise to provideopinion testimony, and whose opinionis formed as a result of the witness’sinvolvement in the underlying relevantevents. For example, a treatingphysician who proffers an opinion basedon her/his personal observations as a

participant in the treatment of a patientis the stereotypical hybrid witness.Businesses are relying more frequentlyon their own employees to provideopinion testimony as well as factualtestimony. Common examples areengineers, software developers, andaccountants with specializedknowledge, skill or expertise who areemployed or retained by a litigant inthe normal course of business.

The Federal Rules RequireThat Counsel Commit Earlyto a Specific Designation

In federal practice, there is arelatively clear distinction drawnbetween discovery of a retained expertand a hybrid witness. The admissibilityof opinion testimony is governed byFederal Rule of Evidence 702. But, inpre-trial discovery, retained expertsare subject to mandatory disclosureunder Rule 26(a)(2), and must disclosespecified information as well as awritten report detailing the substanceof and bases for an expert’s proposedopinion testimony. Hybrid witnessesare not subject to these same disclosurerequirements, and must only beidentified as witnesses who mayprovide opinion testimony at trial.

Yet the distinction between retainedexpert and hybrid witness is not alwayseasy to discern. Opinions formed inthe course of a witness’s employment(or, for example, in the course oftreatment in the context of a treatingphysician) usually will not be deemedto require designation as a retainedexpert. Opinions formed in the contextof litigation (i.e., outside theemployment context or after treatmentor other services have been provided)usually will be deemed to requiredesignation as a retained expert andbe subject to Rule 26(a)(2)’s disclosure

requirements. Thus, the failure toappreciate the differences between aretained expert and a hybrid witnesscan be, as one district court observed,“a trap for the unwary.”1

Because of the different disclosurerequirements, it is important for counselto determine in advance whether aproposed witness can qualify as a hybridrather than a retained expert. This isparticularly important where counseldoes not want the witness to be boundby Rule 26(a)(2)’s disclosurerequirements. If counsel concludesthat a witness qualifies as a hybrid, he/she may choose not to follow themandatory disclosure requirements forretained experts. If, however, thewitness subsequently cannot qualifyas a hybrid, but rather is deemed to bea retained expert, the witness may bebarred from providing any opiniontestimony.2

Opposing counsel also must bemindful of the hybrid/retained expertwitness distinction. If opposing counselfails to realize that the witness is ahybrid, and sits back waiting formandatory disclosures, she/he maylose the opportunity to discover thewitness’s proposed opinions prior totrial.3

Virginia State PracticeAppears to RequireSimilar Diligence

In Virginia state practice, theadmissibility of opinion testimony isguided by §§ 8.01-401.1 and 401.3of the Virginia Code. Unlike theFederal Rules, however, Virginia lawdoes not require disclosures forretained experts.4 Absent a court order,discovery of a retained expert isconducted much like discovery of ahybrid witness in federal practice (i.e.,through deposition and interrogatories


to obtain the identity of the expert, thesubject matter of the proposedtestimony, the facts and opinions to beoffered, and a summary of the groundsfor those opinions).5

Nevertheless, a party who fails toidentify an expert upon request duringpre-trial discovery will usually beprecluded from presenting that expertat trial.6 Thus, counsel must decide upfront whether the witness can qualifyas a hybrid rather than a retainedexpert.

The same factors determiningwhether a witness can qualify as ahybrid rather than a retained expert infederal practice appear to apply inVirginia state practice. One recentSupreme Court of Virginia case seemsto provide some guidance. In Pettus, amedical malpractice case, thedefendant physician offered intoevidence the deposition of anotherphysician witness who had treated theplaintiff. The plaintiff objected, arguingthat the deposition testimony wasinadmissible because it was experttestimony. The Court disagreed,holding that the deposition was notexpert testimony because it servedonly to explain impressions andconclusions reached while treating theplaintiff, rather than stating thephysician witness’s present opinions.7

Although Pettus dealt directly witha different set of issues regarding experttestimony, the Court’s reasoning seemsto acknowledge the distinction betweena hybrid witness and a retained expertusually followed under the FederalRules. A recent Virginia state circuitcourt case suggests that this is theaccepted view in Virginia practice.The issue in Villar-Gonsalvez waswhether a treating physician was aretained expert and therefore entitledto expert witness compensation. Thecourt held that the physician was aretained expert rather than a hybridwitness (and thus entitled to payment),because the witness was asked to opineon issues not considered while thewitness was actually treating thepatient.8

Thus, whether in state or federalpractice, counsel must considercarefully the type of opinion a witness

will be offering in order to assesswhether the witness can be deemed ahybrid.

Practical ConsiderationsConcerning Pre-TrialDisclosure and Discovery

The decisions in Pettus and Villar-Gonsalvez are instructive because thecourts distinguished between an expertwitness effectively “retained” toprovide opinion testimony and awitness who proffered opiniontestimony based on first-handexperience as an actor in theunderlying events. Yet, neither caseresolves the issues of (a) whether ahybrid witness must be identified asan expert, and (b) the type of discoveryapplicable to a hybrid witness inVirginia state practice. Guidance onthese issues may be found in casesconstruing Federal Rule 26(b)(4) priorto its amendment in 1993, whichmirrored Virginia’s current Rule4:1(b)(4), as well as case law fromstates that have adopted expert witnessrules with identical or very similarlanguage.9

Pre-Trial Disclosureof Hybrid Witnesses

Several federal and state courtshave addressed the issue of whetherthe language in or similar toVirginia’s Rule 4:1(b)(4) requiresthe identification of hybrid witnessesduring pre-trial discovery.Unfortunately, there appears to be noclear consensus. In one case, a Georgiafederal district court held that aplaintiff’s failure to identify her treatingphysicians as expert witnesses duringpre-trial discovery precluded her fromoffering the physicians’ opiniontestimony at trial.10 The SupremeCourt of Alaska, however, reached theopposite conclusion in construing arule with language similar to Rule

4:1(b)(4). In that case, the court heldthat a defendant was not required toidentify as an expert witness the policeofficer who investigated a trafficaccident and later offered opiniontestimony at trial, because thepoliceman was “intimately involved”in the underlying facts giving rise tothe litigation, and would reasonablybe expected to form an opinion throughthat involvement.11

This lack of guidance makes itdifficult for counsel to predict how aVirginia court will rule on pre-trialidentification requirements for hybridwitnesses, and should caution counselin most instances to take the saferroute and elect to disclose.

Pre-Trial Discoveryof Hybrid Witnesses

Fortunately, there appears to be abit more guidance available on definingthe contours of hybrid witnessdiscovery. As noted, discovery of expertwitnesses in Virginia state practice islimited to deposition andinterrogatories requesting the identityof the expert, the subject matter of theproposed testimony, the facts andopinions to be offered, and a summaryof the grounds for the proposedopinions. These limitations likely donot apply to hybrid witnesses. Severalfederal courts interpreting the pre-1993 Federal Rule 26 (which, asnoted, was virtually identical toVirginia’s current Rule 4:1) haveconcluded that hybrid witnesses are tobe treated as ordinary fact witnessesfor discovery purposes to the extentthat the discovery pertains to factsacquired and opinions formed by thewitness as an actor in connection withthe subject matter of the litigation.12

For example, in Duke Gardens, afederal district court case in New York,

ABO

UT T

HE

AUTH

OR

S Jon Talotta is a senior litigation associate in the McLean office of Hogan& Hartson L.L.P. He received his M.A. and J.D. degrees from the Universityof Virginia, his M.S. degree from American University, and hisundergraduate degree from Pennsylvania State University. After lawschool, he served as a law clerk for The Honorable James C. Cacheris,U.S. District Court for the Eastern District of Virginia. Michael Smith is astudent at the George Mason University School of Law, and worked as asummer associate at Hogan & Hartson in 2005.

(Continued on page 12)



Preserving Your Client’s Claim for Attorneys’ Fees:Recognizing When a Simple Claim for Attorneys’ Fees Is Not So Simpleby Robert A. Angle and Michael E. Lacy

The ability for your client to recoverits attorney’s fees is often a verypowerful tool in the course of litigation.In some instances, the fees are worthmore that the underlying claim. Whileit is simple enough to request an awardof attorney’s fees, two recent cases —Lee v. Mulford, 269 Va. 562, 611S.E.2d 349 (April 22, 2005), andSafrin v. Travani Pumps USA, Inc.,269 Va. 412, 611 S.E.2d 352 (April22, 2005) — show the pitfalls thatcan arise in preserving such claims.Similarly, a third recent case, CarolinaPower and Light Co. v. DynegyMarketing and Trade, 415 F.3d 354(4th Cir. July 20, 2005), underlinesthe importance of recognizing thenature of one’s claim for attorneys’fees, i.e., by contract or statute, andwhether it is part of the underlyingsubstantive claim or an element ofdamages. In short, these three recentcases show that making a simple claimfor attorneys’ fees may not be so simple.

In Lee v. Mulford, Wayne M. Leesued to enforce a promissory note.The note allowed recovery of hisattorney’s fees and costs as an expenseof collection under the note. Duringthe jury trial, Lee did not presentevidence of attorney’s fees, insteadrelying on the customary practice ofhandling the claim through “post-trialmotion where [parties can] put on anexpert if necessary.”1 After the juryreturned a verdict in Lee’s favor, Leeasked the court for a post-trial hearingon fees, but the trial court denied Lee’srequest for fees. On appeal, Lee arguedthat “‘it is customary to argue theissue of fees post-trial.’”2 While theSupreme Court acknowledged thatparties commonly agree to bifurcatethe trial (with the concurrence of thecourt) and deal with attorney’s fees

after a determination of liability, itfound no such agreement in Lee’s case.The Court noted that “neither partycites any authority for the propositionthat custom and practice, if proved,may alter the substantive rights of theparties otherwise provided by case law,statute, or pursuant to the Rules ofCourt.”3 Finding that Lee’s argument“would, in effect, raise custom andpractice to the status of local rule,”the Court rejected Lee’s argument andaffirmed the trial court’s ruling.4

On the same day that it issued itsopinion in Lee, the Supreme Courtdecided Safrin v. Travani Pumps USA,Inc. In Safrin, Travani Pumps USA(Travani) filed a confession of judgmentto collect on a promissory note. Theconfession of judgment allowedrecovery of attorney’s fees, but Travanidid not submit evidence of attorneys’fees when it confessed judgmentagainst Safrin. Eight months afterobtaining the confession of judgment,Travani moved to reinstate the caseand asked the trial court to award theattorneys’ fees Travani incurred whiletrying to collect on the confession onjudgment. The trial court, rejectingSafrin’s argument that the confessionof judgment was a final judgment underRule 1:1 of the Rules of the SupremeCourt of Virginia, modified its priorjudgment and awarded Travani’s fees.

On appeal, Travani argued that theconfession of judgment formincorporated language in theunderlying promissory note allowingrecovery of fees incurred in collectingunder the note, thus giving the trialcourt continuing jurisdiction to awardfees for collection as they wereincurred after the confession ofjudgment. The Supreme Court rejectedthis argument, stating that “when an

instrument forms the basis of a debtand authorizes an award of attorney’sfees, but does not provide a formulafor liquidating the amount of thosefees at the time of entry of a judgment,no award of fees may be made exceptfor fees actually incurred.”5 The Courtconcluded that, under Virginia Code §8.01-432,6 a confession of judgmentwas a final judgment under Rule 1:1,and the trial court thus lackedjurisdiction to reinstate the case andaward fees to Travani.

The holdings in Lee and Safrin showthe potential procedural pitfalls thatcan arise in recovering attorneys’ feesunder the terms of a contract. Takentogether, these cases suggest that,absent an agreement with opposingcounsel (and concurrence of thecourt), a party must offer evidence ofits fees in its case-in-chief to recoverthem. But the Fourth Circuit’s recentdecision in Carolina Power & LightCo. v. Dynegy Marketing & Trade raisesadditional questions about this issue.In that case, Carolina Power & LightCo. (Carolina) breached a contact topurchase certain amounts of coal fromDynegy Marketing & Trade (Dynegy)at predetermined prices. The districtcourt awarded Dynegy approximately$10 million under the contract’sliquidated damages provision andreserved “‘for a later date’” Dynegy’sclaim for attorney’s fees under thecontract’s “legal costs” provision.7

Carolina thereafter filed a notice ofappeal, but Dynegy moved to dismissthe appeal as untimely under Fed. R.App. P. 4(a)(1)(A) because it was filed31 (rather than 30) days after entry ofthe judgment. In response, Carolinaquickly changed its tune and arguedthat its appeal of the judgment waspremature because the district court


had not resolved the “legal costs” issueand was not yet “final.”

Before the Fourth Circuit, Dynegyargued that the trial court’s judgmentwas “final” under Budinich v. BectonDickinson & Co., 486 U.S. 196(1988), which held that a decision onthe merits of an employmentdiscrimination claim was final eventhough the district court had notresolved a motion for attorney’s feesunder a fee-shifting statute. Carolinaargued that the holding in Budinichwas distinguishable because (1) itsrequest for attorneys’ fees waspursuant to a contract, not a statute,and (2) the fee-shifting statute inBudinich only awarded fees to theprevailing party, whereas the legalcosts provision in the contract did notrequire a determination of theprevailing party. In resolving thisdispute, the Fourth Circuit (Niemeyer,J.) looked to Fed. R. Civ. Pro. 54(d)(2),which was amended in response to theBudinich decision. Rule 54(d)(2)provides that:

Claims for attorneys’ fees andrelated nontaxable expenses shall bemade by motion unless the substantivelaw governing the action provides forthe recovery of such fees as an elementof damages to be proved at trial.

The court held that Rule 54(d)(2)“creates a division in the handling ofattorneys fees claims between claimsthat are not part of the underlyingsubstantive claim, which must be madeby motion, and claims that are anelement of damages, whichpresumably must be made bycomplaint.”8 Thus, a “district courtdecision that leaves unresolved a claimfor attorneys fees that are sought as anelement of damages under thesubstantive law is not a final decisionwithin the meaning of 28 U.S.C. §1291.”9

Applying these principles, the FourthCircuit held that Dynegy’s recovery oflegal costs under the contract was anelement of damages that had to beproved at trial, rather than raised bypost-trial motion.10 The court foundthat, under the contract, legal costswere recoverable “as a remedy for thebuyer’s failure ‘to accept all or any

part of the quantity of Coal to bedelivered under [the contract].’”11

Hence, Dynegy’s right to recover legalcosts accrued upon Carolina’s rejectionof Dynegy’s delivery of coal, not whenthe case was filed or after prevailingin the litigation.12 In essence,Dynegy’s claim for legal costs was a“stand-alone” claim that could “bebrought as an independent claim.”13

Thus, “[w]hen a stand-alone claim forattorney’s fees remains unresolved, adistrict court decision is not final forpurposes of appeal.”14

In reaching this conclusion, theFourth Circuit noted that other circuitshave implemented “bright-line” rulesby treating “contractual awards ofattorney’s fees as collateral, withoutconsidering whether the contract atissue provided such awards as anelement of damages or as costs to theprevailing party.”15 Judge Niemeyerrejected such a bright-line approach,concluding that the benefits of such abright-line rule are outweighed by the“well-established rule that a judgmentis not final until damages are fixed.”16

Judges Wilkinson and Widener,however, each authored concurringopinions to provide further commentaryon this issue. In Judge Widener’sconcurring opinion, he expressedapproval for a bright-line approachand quoted Brandon, Jones, Sandall,Zeide, Kohn, Chalal & Musso, P.A. v.Medpartners, Inc., 312 F.3d 1349,1355 (11th Cir. 2002) (“In [theEleventh Circuit], a request forattorneys fees pursuant to a contractualclause is considered a substantive

issue; and an order that leaves asubstantive fees issue pending cannotbe ‘final.’”).17 In Judge Wilkinson’sconcurrence, he noted that somecontracts may not be clear on whetherrecovery of attorney’s fees are part ofthe substantive claim, and suggestedthat in such “ambiguous or hybridcases, an appeal should be immediatelyallowed.”18

As evidenced by the three opinionsissued in Carolina Power, there aresubtle differences in the rules thatcourts may apply to contractual claimsfor attorneys’ fees. The Supreme Courtof Virginia, however, has not indicatedwhat rule it would apply. Thus, in lightof Lee, Safrin, and Carolina Power,counsel are advised to take care inpreparing and preserving a claim forattorneys’ fees pursuant to contract.Counsel must be proactive and cannotrely on any “customary practice” toargue issues of attorneys’ fees post-trial. Counsel should determinewhether a claim for fees is an elementof damages in the underlying claim,and if so, take the necessary steps toprove that claim, including designatingan expert on fees by the designationdeadline and putting on evidence offees in his case-in-chief. Even whenthe attorneys’ fee claim is not partunderlying claim, counsel would bewell served to obtain clarity from thecourt on how and when a claim forattorneys’ fees must be proved. In short,a simple claim for attorneys’ fees maynot be as simple as it first appears, afact that counsel in Lee and Safrinlearned the hard way.

After clerking for the Honorable James C. Cacheris, Chief Judge, U.S. District Courtfor the Eastern District of Virginia (1994-1995), Robert Angle joined the Richmondoffice of Troutman Sanders LLP. He is a partner in the firm’s Complex Litigationand Intellectual Property practice groups and has experience in all phases ofcomplex litigation. In recent years, his practice has included intellectual propertydisputes involving patent infringement, trademark and trade dress infringement,copyright infringement, unfair competition and trade secret misappropriation, aswell as commercial litigation disputes involving corporate control disputes, taxappeals and other general business disputes. He received his undergraduate andlaw degrees from the University of Virginia. Michael Lacy joined TroutmanSanders’ Richmond office after clerking for the Honorable Lynn N. Hughes,United States District Court, Southern District of Texas, in 2002-04. He is anassociate in the firm’s Complex Litigation practice group. Lacy is a graduate of theUniversity of Virginia and received his law degree from the College of William andMary, where he served as editor-in-chief of the William and Mary Bill of RightsJournal.AB

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NOTES1. Id. at 564, 611 S.E.2d at 350.2. Id. at 565, 611 S.E.2d at 350.3. Id. at 566, 611 S.E.2d at 351.4. See Va. Code Ann. § 8.01-4 (allowing districtand circuit courts to prescribe local rules).5. Id. at 418; 611 S.E.2d at 356.6. Section 8.01-432 states:

Any person being indebted to anotherperson, or any attorney-in-fact pursuant toa power of attorney, may at any time confessjudgment in the clerk’s office of any circuitcourt in this Commonwealth, whether asuit, motion or action be pending thereforor not, for only such principal and interestas his creditor may be willing to accept ajudgment for, which judgment, when soconfessed, shall be forthwith entered ofrecord by the clerk in whose office it isconfessed, in the proper order book of hiscourt. Such judgment shall be as final andas binding as though confessed in opencourt or rendered by the court, subject tothe control of the court in the clerk’s officeof which the same shall have beenconfessed.

7. 415 F.3d at 355.8. 354 F.3d at 358. See also Rule 58(c): “[E]ntryof judgment may not be delayed, nor the timefor appeal extended, in order to tax costs oraward fees, except” that “when a timely motionfor attorney fees is made under Rule 54(d)(2),the court may act before a notice of appeal hasbeen filed and has become effective to orderthat the motion [delay the time for appeal].”9. Id. at 359.10. Id. at 360.11. Id.12. Id. “Unlike the circumstances in Budinich,where the attorney’s [sic] fees award dependedon whether the claimant was a prevailing partyin an underlying cause of action, the attorney’sfees here would be awarded as part of thedamages for Dynegy’s breach of contract claim.The resolution of such a claim is not collateralto the action, but part of it to be resolved underthe substantive law governing the outcome ofthe action.” Id. at 360.13. Id.14. Id.15. Id. at 362. See, e.g., U.S. ex rel. FamilianNorthwest, Inc. v. RG&B Contractors, Inc., 21F.3d 952, 955 (9th Cir. 1994) (finding that the“need for a bright-line rule” justifies treatingcontractual attorneys fees as collateral); FirstNationwide Bank v. Summer House JointVenture, 902 F.2d 1197, 1199 (5th Cir. 1990)(adopting a “bright line” rule that attorneysfees sought under a contract are collateral).But see, e.g., Brandon, Jones, Sandall, Zeide,Kohn, Chalal & Musso, P.A. v. Medpartners,Inc., 312 F.3d 1349, 1355 (11th Cir. 2002)(holding that “a request for attorneys’ feespursuant to a contractual clause” is substantiveand must be resolved before a judgmentbecomes final); Justine Realty Co. v. Am. Nat’lCan Co., 945 F.2d 1044, 1048-49 (8th Cir.1991) (holding that, when a party seeks torecover attorneys fees as “a portion of thecontractual benefits inissue,” the judgment is notfinal before the courtresolves the issue ofattorneys fees).16. Id.17. Id. at 363.18. Id..

the defendant sought to depose threeemployees of a company the plaintiffhad hired before the commencementof the litigation to inspect structures atissue in the lawsuit. The plaintiffobjected to the defendant’s attemptsto discover what the employees learnedduring their pre-litigation inspections,arguing that the employees were beingcalled as expert witnesses and thuscould not be deposed on those findingsabsent a court order. The court heldthat the pre-litigation inspections werediscoverable by ordinary means,because the information requested wasobtained by the employees inconnection with the underlying subjectmatter of the litigation, rather than asexperts retained for litigationpurposes.13

The decision in Duke Gardens andother similar holdings appear aimedat preventing parties from using thelabel of expert to shield from ordinarydiscovery a witness with first-handknowledge of underlying facts. It seemslikely that a Virginia court faced withthe same situation would follow suchreasoning when assessing the scope ofdiscovery on a hybrid witness.

Conclusion:Putting Your DesignationDetermination Into Context

The strategic considerations involvedin handling a hybrid witness can havefar-reaching consequences in Virginiafederal and state practice. In federalpractice, the motivations to treat awitness as a hybrid can be significant,because designation as a retainedexpert will trigger mandatorydisclosure requirements (including thefiling of a report). Yet, although counselmay be inclined to treat a witness as ahybrid in order to limit the amount ofinformation disclosed and the costs ofpreparing an expert report, the nature

of the witness’s opinions may requirethat the witness be designated as aretained expert. Because Virginia statepractice does not require writtendisclosures, and because treating awitness as a hybrid rather than aretained expert may affect the extentof discovery opposing counsel mayobtain from the witness, there appearto be incentives to disclose an opinionwitness as a retained expert,particularly because failing to disclosea retained expert can result in theexclusion of her/his testimony.

Thus, whether in federal or statepractice, it is usually safer to designatean opinion witness as a retained expertrather than attempt to treat the witnessas a hybrid. VBA

NOTES1. Sullivan v. Glock, 175 F.R.D. 497, 501 (D.Md. 1997).2. For an illustrative discussion of thesepotential quandaries, and the parameters forassessing whether a witness can qualify as ahybrid, see Sullivan, 175 F.R.D. at 500-508.3. Id.4. Virginia courts do issue scheduling ordersrequiring disclosure of the identities of expertwitnesses and information about expertsotherwise available through interrogatoriesand depositions under Rule 4:1(b)(4).5. See, e.g., Flora v. Shulmister, 546 S.E.2d427, 430 (Va. 2001).6. See, e.g., City of Hopewell v. County ofPrince George, 397 S.E.2d 793, 797 (Va. 1990).7. Pettus v. Gottfried, 606 S.E.2d 819, 824-25(Va. 2005). Note, however, that the Court didnot discuss in its opinion whether the physicianwitness was identified as an expert by thedefendant.8. Villar-Gonsalvez v. Villar-Gonsalvez, 65 Va.Cir. 96, 100-01 (2004).9. The Virginia courts themselves have lookedto such outside authorities for assistance. See,e.g., Flora, 546 S.E.2d at 430; Villar-Gonsalvez,65 Va. Cir. 96.10. Chakales v. Hertz, 152 F.R.D. 240, 242(N.D. Ga. 1993); see also Smith v. Paiz, 84 P.3d1272 (Wy. 2004) (similar reasoning andoutcome).11. Getchell v. Lodge, 65 P.3d 50, 55-56 (Ak.2003); see also, Kehr v. Knapp, 136 S.W.3d118 (Mo. Ct. App. 2004) (similar reasoning andoutcome).12. See, e.g., Duke Gardens Found. v. UniversalRestoration, 52 F.R.D. 365 (S.D. N.Y. 1971);Nelco Corp. v. Slater Electric, 80 F.R.D. 411(E.D. N.Y. 1978); Keith v. Van Dorn PlasticMachinery Co., 86 F.R.D. 458 (E.D. Pa. 1980).13. Duke Gardens, 52 F.R.D. at 366-67.

Hybrid WitnessesContinued from page 9

[email protected] you can trust.Information you can use.At prices you can handle.Online at www.vba.org. Onthe phone at (804) 644-0041.


[email protected]’s Note: Judge Kelsey delivered this speech, whichhas been edited and annotated for publication, at the2004 Virginia CLE Conference on Workers’ CompensationLaw.

I. The Un-Common Law Response to the Industrial Revolution

In the agrarian economy preceding the industrial revolution,laborers enjoyed a form of workplace autonomy that has sincebeen lost to history. By and large, they fashioned their owntools and determined the precise methods of accomplishingtheir work. As long as the crops came in on time, the landowningclass took little interest in dictating exactly how the work gotdone. The industrial revolution that swept through the Westduring the late 1800s, however, radically withdrew anysemblance of worker autonomy. Laborers began to work infactories using machines built by others having only marginal,if any, interest in worker safety. The self-directed nature ofworking with the soil gave way to the highly regimented natureof working with machines.

In theory, but hardly in practice, employees in 19th-centuryfactories were protected by their employer’s duty “to provideemployees with a reasonably safe place in which to work.”1

Whatever succor this duty provided to employees, it soonsurrendered to the “unholy trinity” of employer defenses:contributory negligence, assumption of risk, and the fellowservant rule.2 They became the “wicked sisters” of the commonlaw because, working together, they effectively nullified anyrealistic possibility of holding an employer liable for the greatmajority of on-the-job injuries.3 Dean Prosser explained theunderlying rationale of the common law approach this way:

The cornerstone of the common law edifice was the economictheory that there was complete mobility of labor, that thesupply of work was unlimited, and that the worker was anentirely free agent, under no compulsion to enter into theemployment. He was expected therefore to accept and takeupon himself all of the usual risks of the trade, togetherwith any unusual risks of which he had knowledge, and torelieve the employer of any duty to protect him.4The common law suffered its first defeat at the hands of a

continental civil law jurisdiction. In 1884, Germany enactedthe first worker compensation system.5 Thirteen years later,Britain enacted a similar statute reciting the now universallyfamous coverage formula: “arising out of and in the course ofemployment.”6 This statute adopted an “intermediate positionthat imposed upon the employer a qualified form of negligenceliability.”7

Shortly after the English parliament passed its compensationstatute, the concept moved across the Atlantic.8 States rushed

to enact worker compensation systems after the United StatesSupreme Court upheld the constitutionality of New York’ssystem in 1917.9 By 1949, every state had enacted some formof workers’ compensation statute.10 Among the principal reasonsfor the spreading interest in the compensation statute, ProfessorLarson explained, was the efficiency that would result fromplacing the enforcement of the statute “in the hands ofadministrative commissions” using relaxed procedural andevidentiary requirements.11

The idea first surfaced in Virginia during the 1914 legislativesession. In his inaugural address to the legislature, GovernorHenry Carter Stuart strongly endorsed the concept as oneworthy of “a time when the spirit of human brotherhoodinfluences the conduct of government and society in anunprecedented degree.”12 The spirit did not move the legislators,however, for another four years. In 1918, the General Assemblyenacted Virginia’s first workers’ compensation legislation.Modeled after Indiana’s statute, the Virginia Act intended to:• create “the certainty that compensation will be paid” and

thus contribute to the “contentment of the worker,”• give the employer the confidence that “the sums paid by

him, or by his insurer, [will] go directly and in full to hisinjured workman,”

• produce “efficiency” and result in the “elimination ofwaste in the litigation of claims,”

• provide “definite and timely relief without the uncertaintyand expense of a law suit,”

• relieve civil courts of the “time and expense” of“negligence cases” which have “crowded their dockets,”and

• reduce “poverty and destitution” by increasing “thenumber of awards granted by abolishing the common lawdefenses available to employers.”13

The idealism animating the legislation served more as ananodyne for past frustrations than a blueprint for realisticfuture goals. The Virginia Supreme Court summarized thewidespread discontent with the status quo this way:

Both had suffered under the old system, the employers byheavy judgments, of which half was opposing lawyer’sbooty, the workmen through the old defenses or exhaustionin wasteful litigation. Both wanted peace. The master, inexchange for limited liability, was willing to pay on someclaims in [the] future, where in the past there had been noliability at all. The servant was willing not only to give uptrial by jury, but to accept far less then he had often won incourt; provided he was sure to get the small sum withouthaving to fight for it. All agreed that the blood of theworkman was the cost of production, that the industryshould bear the charge.... To win only after litigation, to


Social Compact as Law: The Workers’ CompensationAct & the Wicked Sisters of the Common Lawby The Honorable D. Arthur Kelsey


collect only after the employment oflawyers, to receive the sum only aftermonths or years of delay, was to thecomparatively indigent claimant littlebetter than to get nothing. Theworkmen wanted a system entirelynew. It is but fair to admit that theyhad become impatient with the courtsof law.14

Given this antipathy with the tort-based legal system, the architects ofworkers’ compensation statutes intendedthem, where applicable, to supplantentirely the tort-based legal system. So,with some exceptions (willful misconduct,violation of statutes, and the like),15

compensation statutes generally dispensewith concepts of legal or moral faultinherent in tort law.16 The test forproviding statutory compensation “is notthe relation of an individual’s personalquality (fault) to an event.” It is, instead,“the relationship of an event to anemployment.”17 “The essence of applyingthe test is not a matter of assessing blame,but of marking out boundaries.”18

Workers’ compensation statuteslikewise changed the basic ground rulesfor compensation. No recovery would beallowed for pain and suffering. Nor coulda claimant, absent a settlement, recovera net-present value lump sum award forlost future earning capacity. Loss of actualwages would be compensated, but onlyincrementally and at a level less than thetrue loss. The lower recovery, the statutorydraftsmen thought, would give employeesa direct stake in promoting workplacesafety.19 The draftsmen also wanted tomake clear that it was “never intendedthat compensation payments should equalactual loss, for the reason, if no other,that such a scale would encouragemalingering and trumped-up claims.”20

The statutory remedy, they asserted, wasmeant to “ensure that the claimantcontinue to receive the bare minimumincome and medical care to keep himfrom destitution.”21

On the other hand, it would be equallywrong to think of the workers’compensation statute as a mere expedientof the social welfare state, where thegovernment merely redistributes wealthby taxing some for the benefit of others.Instead, the statutory model assumes thatmost employers will purchase privateinsurance on the open market. Thoughthe premiums serve as a kind of self-administered, indirect tax, the insurance

market nonetheless adjusts the premiumrates in a way that tailors costs to industrialrisks. In doing so, the market provides arough risk/cost correspondence —something a crude tax code could neverdo and, if it could, not quite so well.Employers ultimately pass the premiumsto the consumers, who pay their share ofthe liability as a hidden cost-of-goods-sold.22 Unlike a social welfare programwhere the cost is spread across the entirepublic, only the “particular class ofconsumers” purchasing the specificproduct pays for the transferredpremium.23 From an economicperspective, the statutory compensationsystem provides a form of riskdisincentive superior to a welfareentitlement program but, admittedly,inferior to the direct accountability of ajudicially enforced tort liability system.

If the workers’ compensation statute isnot a tort-based system designed to punishthe negligent and to exonerate the careful,if it is not a social welfare system thattaxes the negligent and careful alike andredistributes the wealth to the employeesof both, what then is it? Mostcommentators agree it can be bestdescribed as a three-party societalcompact — one which, like a treaty, hasthe force of law. The compact existsbetween capital, labor, and government.Seeking a peace of sorts, each gave upsomething and got something in return.This “societal exchange,” the VirginiaSupreme Court has observed, underliesthe “quid pro quo” of the statute.24

Industry received immunity from tortsuits in exchange for providing no-faultstatutory compensation. Employees gotthe certitude of some compensation inmost cases of work-place injuries,25 butgave up the lotto-like opportunities ofhigh tort recoveries in cases of employerfault.26 “From this it follows that thegreat secret for success of the workers’compensation system lay not in itsvaunted, coercive original compulsion,but in the fact that it followed the verypattern of risk distribution that bothhistorical experience and general theoryof contract law indicated would bestminimize the risks in question.”27

The third and often ignored memberof the compact, government, walked awayfrom the bargaining table with a moreefficient method of dispute resolution(thereby relieving the mounting pressureon judicial resources), but in the process

gave up the ancient ad judicare role of itscitizens. In employment injury and deathcases, citizens forever lost their right toparticipate in civil juries—a core aspectof their popular sovereignty—thusforfeiting any continuing opportunity topass judgment in specific tort cases onthe reasonableness of industrial risksassociated with the ever-evolvingeconomy. From a historical perspective,this was no small sacrifice. “To many ofthe Framers’ generation, the jury was thelower judicial bench in a bicameraljudiciary and the democratic branch ofthe judiciary power—more necessary thanrepresentatives in the legislature.”28 Tothem, the jury was “no mere proceduralformality, but a fundamental reservationof power in our constitutional structure.Just as suffrage ensures the people’sultimate control in the legislative andexecutive branches, jury trial is meant toensure their control in the judiciary.”29

Having paid such a steep price to ensureits success, government (serving as thenegotiating agent of the polity at large)earned a high stake in this societalcompact and an enduring expectationthat the promises of the compact justifythe sacrifice.

II. Judicial Supervision of the Social Compact

The contractual character of theworker compensation legislation—well-recognized in Virginia law30 —involves adynamic compact, one that evolves aseconomic conditions change. Theunderlying principles of the statutoryquid pro quo should remain immutable,but their application will vary whenapplied to unforeseen circumstances. Toensure this is done faithfully, the statuteappointed representatives of each of thethree parties to the commission taskedwith administering the compact. The 1918Virginia Workers’ Compensation Actprovided, as it still does today, that onlyone commissioner shall be classified “asa representative of employees” whileanother “shall be classified as arepresentative of employers.”31 The thirdmember, appointed by a joint vote ofboth houses of the General Assembly,represents the public interests of thepolity at large.32

Like any complex contract, the workers’compensation statute assumesunanticipated circumstances may disruptthe consensual quid pro quo enough to


warrant a renegotiation of certain aspectsof the original deal—permitting a changeorder of sorts to adjust the literalcontractual performance obligations tobetter match the unwritten assumptionsshared by the contractual parties. Theimportance of this reexamination effortshould not be overlooked. “If legislaturesand courts forget the historical originsand economic structure of thecompensation statutes, they may bringabout an institutional disarray that worksagainst the interests of both the employerand the employee.”33

It seems a great many change orderrequests are now on the negotiating table.Some argue that, given the “presentdistress of the system,” perhaps the“levels of benefits and the extent ofcoverage have simply become too lavishto satisfy the elaborate set of constraintsupon any compensation system, voluntaryor compulsory.”34 Others reach theopposite conclusion, arguing that“increased compensability standards andother reforms to workers’ compensationsystems, which have diminished theemployee end of the quid pro quo, shouldalso correspondingly increase employerexposure to tort liability.”35 This debateappears to be ongoing in many states.36

Given its unique role, the judiciaryshould take no sides in this contest. Theprimary task of the courts is to providestable, predictable precedents—ones soclear and reliable that both the employeeand employer classes can calculate thecost/benefit equation with some degreeof confidence. When that equationunreasonably favors one or the other party,either would then be able to present hiscase to the legislature and seek a remedyfor the imbalance. Rebalancing the scales,however, should be a purely legislativefunction.

Two reasons lead me to this conclusion.The first is structural. “Owing to itscomposition and character, the judiciaryis the least democratic branch of ourtripartite government.”37 When it goesbeyond its charter, the judiciary“inoculates the political class from havingto deal with the hard realities of governinga diverse, pluralistic society” and therebyrelieves the legislative branch ofgovernment of the “responsibility forarticulating public policy with any degreeof specificity. This has the effect ofanesthetizing some citizens and alienatingothers.”38

The second reason is more practical,for “even if the courts had plenaryauthority to make law, they are certainlyill equipped to do it. Truth be told, theinstitution of the judiciary is not at allnimble enough to engage the kind ofsocial experimentation necessary to makegood law. Once a court issues a ruling,the doctrine of stare decisis immediatelyencamps around it to stifle any laterchange or repudiation. That is not at allthe situation with legislation, which cancome and go as political power migratesfrom one set of interest groups to another.The systemic capacity for inertia thatcharacterizes the judicial system makesit a poor laboratory for improvising onsocial policy.”39

The quality of the judiciary’s work,therefore, should not be judged on thebasis of the sagacity of its broad policypronouncements. Nor should the judiciarybe graded on its capacity to recalibratethe specific quid pro quo on a case-by-case basis—driven not by neutralprinciples of law, but by the desire toachieve some form of ad hoc fairness forevery litigant in every case.

Instead, on each specific line of judicialprecedent, the primary question is this:Has the judiciary provided the degree ofdoctrinal clarity necessary for itsprecedents to produce predictable results?If so, the parties to the compact cancalculate the cost/benefit equation of anygiven legal principle—at least enough soto confirm the principle as consistent orto condemn it as inconsistent with theparity of interests underlying the originalcompact.

In the main, I think the answer is yes.But several stress points remain. Let memention here just a few.

III. Stress Points in the Application of the Virginia ActA . Actual, Peculiar and Enhanced

Risks: What Are the Comparators?At the heart of the Virginia Act is the

coverage formula. The test we use—“arising out of and in the course ofemployment”—parallels the languageused in most states and in the Longshoreand Harbor Workers’ CompensationAct.40 The phrase originated in theBritish Compensation Act of 1897.41 AsLarson has observed: “Few groups ofstatutory words in the history of law havehad to bear the weight of such a mountainof interpretation as has been heaped upon

this slender foundation.”42

Four distinct interpretations of thisphrase predominate in American law:the “peculiar risk,” “increased risk,”“actual risk,” and “positional risk”tests.43

Under the first interpretation, thepeculiar risk doctrine, “which in theearly dawn of American compensationlaw was actually the dominant rule, theclaimant had to show that the source ofthe harm was in its nature peculiar to hisoccupation.”44 This test focused on thenature and quality of the risk, askinghow the risk differed from the kind ofrisk everyone else faced. Thus, even ifthe work exposed the employee to an“increased quantitative risk of injury byheat, or cold, or lightning, the claimantmight be turned away with the commentthat ‘everyone is subject to the sameweather.’”45 The specific degree of riskwas of no moment to the peculiar riskdoctrine. The doctrine originated inMassachusetts in the early 1900s. AsLarson points out, however, the peculiarrisk theory “gradually achieved a well-deserved oblivion and was replaced bythe increased-risk test.”46

The increased risk test is different “inthat the distinctiveness of the employmentrisk can be contributed by the increasedquantity of a risk that is qualitatively notpeculiar to the employment.”47 So, forexample, even though everyone may besubject to the same kind of weather risks(lightning, hail, rain, etc.), an employeemay be still covered if his work subjectedhim to a greater degree of risk fromdangerous weather.

In contrast, the actual risk doctrineignores whether the risk is either peculiarin quality or enhanced in quantity, solong as it is in fact a risk of employment.“Under this doctrine, a substantialnumber of courts are saying, in effect,‘We do not care whether this risk wasalso common to the public, if in fact itwas a risk of this employment.’”48

The most generous of tests, thepositional risk model, goes further still.Coverage under this view applies to anyinjury during employment that would nothave necessarily happened absentemployment. The only injuries excludedfrom coverage would be those theemployee would have suffered had hesimply stayed home from work that day.49

Where exactly does Virginia stand?The most recent Virginia Supreme Court


case states that we apply the “actualrisk” test.50 To prove the point, the caseobserves that the Court has “repeatedlyquoted with approval the test enunciatedin In re Employers’ Liab. Assur. Corp.,102 N.E. 697 (Mass. 1913),” which heldthat the “causative danger must bepeculiar to the work and not common tothe neighborhood”—a statement of thepeculiar risk test.51 The Virginia Courtof Appeals similarly conjoins the peculiarand actual risk tests as if they wererestatements of each other.52 EarlierVirginia cases also appear to employ avariant of the increased-risk test. As onecase put it: “Excluded is an injury whichcomes from a hazard to which theemployee would have been equally exposedapart from the employment.”53 Morerecent cases also use this formulation.54

Perhaps the best examples of how theseseemingly semantic distinctions make abig difference are the lightning cases.Consider an employee, while on the job,getting struck by lightning. Nothingparticularly peculiar about that.Lightning strikes happen to workers andnon-workers alike. Using its conventionalformulation, the peculiar risk doctrinewould probably deny coverage.55 Theincreased-risk doctrine would questionwhether the employee’s quantitative riskof being struck had been enhanced byhis employment. Was he repairing a radiotower during a storm? If so, he would becovered. If, on the other hand, nocondition of employment heightened therisk of being struck, coverage wouldprobably be denied. Under the actualrisk doctrine (as it has been conventionallyunderstood), the only issue would bewhether the employment actually exposedthe employee to the risk. So if theemployee had to walk a block down thestreet during a thunderstorm to performsome work task, the lightning strikeduring the walk would qualify as anactual risk of employment. Under thepositional risk model, any randomlightning strike would be covered if itoccurred while on the job.

The only safe synthesis of Virginiacases is a fairly modest one: Virginiadoes not apply the positional risk test,despite our ostensible fidelity to Indianalaw.56 Instead, we appear to applyvariants of the remaining three tests(peculiar, increased, and actual riskdoctrines) on an ad hoc basis,subordinating conceptual subtleties to

unique facts of each case. Of these three,most fact patterns in the decision lawsuggest that the increased-risk test takesthe laboring oar in Virginia law.B. Compensable Consequences

From time to time, common law tortconcepts get smuggled into the statutorycompensation framework. That isparticularly true with causationprinciples.57 As originally understood,compensation depended not on whethera workplace event proximately caused aninjury. The threshold issue was simply“the relationship of an event to anemployment.”58 Causation played a role,but it was limited to medical, not legal,causation.59 If the original injury (from amedical point of view) caused a laterconsequent injury, which itself causedan injury, and so on, then all medicallycaused consequential injuries would becovered. Under this approach, onlyintervening causes outside the chain ofmedical causation would disruptcausality.

Even so, courts began to insertattenuation limits into this pure medicalcausation principle. The compensableconsequences doctrine restates thegeneral rule: Compensation should beallowed for every injury stemming, as anatural consequence, from the originalinjury.60 Thus, if A causes B, B causesC, and C causes D, then it can be reliablysaid that A causes D — both as a matterof syllogistic logic and medical science.Nevertheless, at some point, courts refuseto recognize these sequential causes andrequire a direct showing of causationbetween the original injury and theconsequent injury.61 Without saying asmuch, these courts appear to be usingproximate cause principles to break theotherwise limitless but-for causal chain.Whether such a tort-based attenuationprinciple should be imported into workers’compensation law remains an openquestion, but there can be little doubtthat variations of it already have been.C. Intentional Torts: Resurrection of the ‘Fellow Servant’ Wicked Sister

Virginia courts have long held that,under some circumstances, thecompensation statute may apply tointentional torts committed by employersor fellow employees.62 Two boundary lineshave been marked off on this topic. Thefirst focuses on whether the tortiousconduct against the employee was

“personal to the employee and notdirected against him as an employee orbecause of his employment.”63 If personalto the claimant, “the injury does notarise out of the employment.”64 Thesecond boundary line excludes coveragewhere the intentional tort causes a gradualinjury.65 A gradual pattern of harassmentby co-employees or an employer, underthis approach, would not cause a coveredinjury.66 Neither boundary line, however,can be easily seen in the dense underbrushof most litigable fact patterns.67

Applying the compensation statute tointentional torts resurrects one of thethree wicked sisters in a new, but equallypotent, way. The fellow servant doctrineno longer exists under modern law. Andeven when the doctrine applied, it hadno effect on a suit against the co-employeepersonally. Thus, an employee with aviable common law claim against anemployer may rely on fellow-servantnegligence to trigger respondeat superiorliability and also sue the co-employee.In contrast, where the compensationstatute applies, it immunizes co-employees from any tort liability just asit does employers.68 The fellow-servantdoctrine thus reappears as the co-employee immunity bar. To some, thiswicked sister throws off the balance ofequities inherent in the original socialcompact—making the modern bargainfar too pricey for the employee.69

Covering intentional torts under thecompensation statute also raises two otherproblems.

First, the original quid pro quobalanced the certainty of nominalstatutory benefits based on strict liabilityprinciples against the uncertainty of atort recovery based on negligenceprinciples. This made sense becauseproving negligence in court was oftenproblematic and almost always laborious.In contrast, a claimant need not litigatevague notions of reasonable care to assertan intentional tort. Proof of the tortiousconduct and damages is enough.

Second, the concept of moral “justdeserts” plays a limited role in the originalquid pro quo. Deterring employers fromeither creating or acquiescing in unsafeworking conditions, it was thought, couldbe best accomplished on an indirect andbroad basis through the incremental costof insurance. The societal interest invoicing moral outrage at intentionaltortfeasing by employers, however,


demands a more direct and specificapplication. The availability of punitivedamages in tort law,70 coupled with theunavailability of contributory negligencebars or comparative negligence discounts,enforces this public interest.D. Standard of Review: When the Court of Appeals Reviews the Commission

Virginia Code § 65.2-706(A) requiresVirginia courts to accept an award of thecommission as “conclusive and bindingas to all questions of fact.” This deferenceis not a “mere legal custom, subject to aflexible application, but a statutorycommand.”71 Factual findings becomequestions of law (subject to de novoappellate review) only when the factfinderabuses its role by acting irrationally.When appellate judges say they will notoverturn a factual finding if “any credibleevidence” supports it,72 they do not meanto imply that they personally have weighedthe testimony and found this or that bitof evidence credible.73 They are simplypassing on whether a rational factfindercould find it sufficiently credible to satisfythe burden of persuasion.74 Given thisstandard of review, only the rarest ofcases can push far enough beyond thebell-shaped curve of rationality to justifyan appellate reversal of commissionfactfinding.75

On questions of statutory law, it isoften said the commission’s “constructionof the Act is entitled to great weight onappeal.”76 No matter how great it is,however, the commission’s legal reasoningdoes not receive binding deference onappeal. This caveat, which all butsubsumes the basic rule, parallels themaxim that “pure statutory interpretationis the prerogative of the judiciary.”77

The commission’s interpretations of itsown rules, on the other hand, receive fargreater respect on appeal.78 But eventhis deference dissipates — disappearingaltogether, I think — if the commissionemploys inconsistent interpretations ofthe same rule in different cases.79

E. Standard of Review: When the Commission Reviews its Deputies

As far as I can tell, there appears to beno consistently applied neutral principleof law governing the commission’s reviewof its deputies’ factfinding. When thecommission affirms the deputy, it oftenbegins the analysis with the propositionthat the full commission defers to adeputy’s factual findings based upon

credibility assessments.80 When thecommission reverses on the facts, it eithermakes no mention of the deferenceprinciple or admittedly refuses to followit.81 The inconsistency stems from thestatutory anomaly of treating thecommission simultaneously as anappellate body and a factfinding tribunal.

Bound by the “conclusive and binding”nature of the commission’s factfinding,Virginia Code § 65.2-706(A), theVirginia Court of Appeals has not soughtto impose a uniform standard for intra-commission review of factfinding, exceptsimply to say the commission should not“arbitrarily” disregard its deputies whohear ore tenus testimonial evidence.82

F. Equity & ImpositionIn the Anglo-American tradition, the

equity powers of a chancellor acted as acheck against the “universality of thecommon law precedents and theirunbending quality” which the chancelloroccasionally found “unjust when appliedto a specific set of circumstances.”83 “In‘these and like cases,’ St. ThomasAquinas counseled, ‘it is bad to followthe law, and it is good to set aside theletter of the law and to follow the dictatesof justice and the common good.’”84

In Virginia, the doctrine of impositionimported these flexible equitableprinciples into the commission’sdecisionmaking power.85 As a generalrule, the doctrine applies “in cases wherethe evidence shows the occurrence ofsome mistake or unfair conduct thatwould render a strict application of theAct unjust in a particular case.”86 Givenits open-ended appeal to “full andcomplete justice in each case,”87 however,the doctrine of imposition seems to turnup when and where it chooses.

In one case, an employer stoppedpaying wage benefits to an employee whohad gone back to work.88 The employer,however, did so without first filing anapplication to terminate. The doctrine ofimposition intervened and relieved theemployer of the consequences of itsmistake. The “purpose of the Act,” thecourt stated, “is to compensate injuredworkers for lost wages, not to enrichthem unjustly.”89 This unjust-enrichmenttheme, however, proved to be short lived.Two later cases found it inadequate, as afreestanding principle, to preclude anemployee from obtaining a doublerecovery as a result of similar technicaldefaults by employers.90 These two cases

weakened the unjust-enrichmentprinciple enough that it could not excusean employer’s technical violation of acommission rule, even though a strictapplication of the rule resulted in thepayment of compensation payments to anemployee during his period ofincarceration.91

G. The “Jurisdictional” Two-Year Statute of Limitations

Virginia law has long viewed the statuteof limitations for filing a workers’compensation claim as “jurisdictional.”92

In this context, the term describes thekind of jurisdiction that (unlike othervarieties) “cannot be conferred on theCommission by consent.”93 Most forms ofnon-subject matter jurisdiction—like, forexample, personal and noticejurisdiction—can be both conferred andwaived by consent. Following that logic,unpublished opinions of the VirginiaCourt of Appeals and the commissionhave held that the statute of limitationsfor filing claims implicates “subjectmatter jurisdiction.”94 Non-compliancewith a jurisdictional statute of this kinddeprives the tribunal of power to hearthe case,95 thereby annulling equitabledoctrines like res judicata and othermeans of collaterally attacking an ultravires decision.96

Despite this, the operation of otherequitable doctrines—estoppel, waiver,and imposition—may arguably precludean employer from asserting the statute oflimitations as a defense.97 Not yetexplained, however, is how subject matterjurisdiction can be conferred by such defacto consent grounds.98 Nor has anyexplanation been given for recognizingthe availability of some equitable doctrines(like estoppel), but not others (like resjudicata). For these reasons, onecommissioner has criticized thecharacterization of the limitations statuteas a measure of the commission’s subjectmatter jurisdiction.99

H. Liberal Construction of the ActLiberal construction operates to

expand the Workers’ Compensation Actto embrace cases within its coverage thatwould otherwise be on the fence.100 Theliberality principle, however, does notauthorize an “unusual or tortured”interpretation.101 Virginia has frequentlyapplied the liberality principle, albeitsubject to various caveats.102

The concept of liberal construction,


however, appears to be only one-dimensional. When the statute applies toan injury solely due to a liberalconstruction (that is, in cases where anilliberal construction could excludecoverage), two consequences occur:Benefits are awarded to the employee,and tort immunity is awarded to theemployer.103 But when an employer filesa plea of immunity in circuit courtasserting the applicability of the statuteto the employee’s injury (thus entitlingthe employee to statutory benefits andthe employer to statutory immunity), thecourts do not typically begin their legalanalysis with the observation that thestatute will be liberally construed to applyto the injury. The liberality principle,therefore, is a fickle doctrine that dependsentirely on the employee’s election ofremedies.104

IV. The Quest for Predictability and Efficiency

The original architects of the workers’compensation system complained in theearly 1900s about the “waste anduncertainty of the present state of thelaw” and saw it as “essential that the actshould be so drawn as to be as far aspossible automatically applicable to anygiven state of fact, and, as far as may be,to prevent the right to compensation frombecoming a subject of antagonisticlitigation.”105 The idealistic hopes of theseearly reformers were high indeed:

This [statutory] language has beenadopted upon the assumption that ithas acquired by judicial construction,during the years which have elapsedsince these acts were passed, so fixedand certain a meaning that a resort tothe English decisions will, in a greatmajority of cases, render furtherinterpretation and constructionunnecessary and so avoid that vastamount of litigation generally requiredfor this purpose.106

Needless to say, that assumption(expressed as early as 1911) proved to beoverly optimistic. Judicial opinions froma year ago sometimes confound me everybit as much as House of Lords decisionsfrom the last century.

I concede that highly predictablejudicial precedent may also appear tosome to be highly erroneous as well,making its clarity all the more repugnantto those that think so. But as JusticeScalia has said, “in simpler times

uncertainty has been regarded asincompatible with the Rule of Law.”107

It necessarily, albeit reluctantly, followsthat there are “times when even a badrule is better than no rule at all.”108

Even so, each descending step fromjuristic virtue to vice—prospering with agood rule, suffering under a bad rule,barely surviving with no rule at all—exacts a high human and economic toll.In Virginia, the workers’ compensationstatute covers more than three millionworkers and embraces over 90% of thestatewide workforce.109 Last year alone,157,607 accidents were reported to theVirginia Workers’ CompensationCommission.110 Nationwide, the cost toemployers of maintaining the systemexceeds $80 billion dollars annually.111

Its magnitude alone warrants theobservation, made by the VirginiaSupreme Court in 1946, that the workers’compensation statute “comprises one ofthe most important branches of law” andis as “essential to industry as it is tolabor.”112 “Upon its effectiveness dependsthe potential welfare of a large number ofemployees and their families.”113

Preserving and, perhaps, even enhancingthat effectiveness would be a fair tributeto Governor Stuart’s noble “spirit ofhuman brotherhood.”114 VBA

NOTES*The views advanced in this outline represent commentary"concerning the law, the legal system, [and] theadministration of justice" as authorized by Virginia Canonof Judicial Conduct 4(B) (permitting judges to "speak,write, lecture, teach" and otherwise participate in extra-judicial efforts to improve the legal system). These remarks,therefore, should not be mistaken for any official view ofthe Court of Appeals or my opinion as an appellate judgein the context of any specific case.1. See Fields v. Virginian Ry. Co., 114 Va. 558, 561, 77 S.E.501, 502 (1913) (“It is the duty of the master to useordinary care and diligence to provide a reasonably safeplace in which his servant is to work . . . .”); 2 Dan B. Dobbs,The Law of Torts § 392 (2001).2. See W. Page Keeton, et al., Prosser and eeton on TheLaw of Torts § 80, at 568 (5th ed. 1984); Lawrence M.Friedman & Jack Ladinsky, Social Change & the Law ofIndustrial Accidents, 67 Colum. L. Rev. 50, 52-53 (1967). Anearly advocate of worker compensation statutes, ArthurLarson, cited a 1907 German study to illustrate how thelaw provided no recovery in the great majority of industrialaccidents:Classification of Causes of Accidents:

1. Negligence or fault of employer: 16.81%2. Joint negligence of employer and injured employee: 4.66%3. Negligence of fellow servant: 5.284. Acts of God: 2.31%5. Fault or negligence of injured employee: 28.896. Inevitable accidents connected with the employment: 42.05

Only category number 1, “negligence or fault of employer,”would provide a legal basis for employees to receivecompensation for an injury suffered in the common lawworkplace. Arthur Larson, The Nature & Origins ofWorkmen’s Compensation, 37 Cornell L.Q. 206, 224 (1951-52). But even then, Larson points out, “the defense ofassumption of risk might still apply.” Id. at 225. Americanstatistics showed a similar rate of uncompensated work-place injuries. Keeton, et al., supra note 2, § 80 at 572 n.

43.3. Keeton, et al., supra note 2, § 80 at 573. Later commonlaw courts injected the “vice principal” doctrine (excludingfrom the fellow-servant category all employees insupervisory positions) to mitigate against the effect of thefellow servant rule. See Richard A. Epstein, The HistoricalOrigins and Economic Structure of Workers’ CompensationLaw, 16 Ga. L. Rev. 775, 778 n.10 (1982); Larson, supranote 2, at 225-26.4. See Keeton, et al., supra note 2, § 80 at 568 (“Thebackground of these statutes lay in the very limited tortliability of the master to his servant at common law. Theextent of the employer’s responsibility, although it wassaid to rest upon the understanding of the parties,undoubtedly was fixed by the courts upon the basis of oldindustrial conditions, and a social philosophy and anattitude toward labor, which are long since outmoded.”).5. See Larson, supra note 2, at 230-32; Lawrence J. Pascal,Virginia Workers’ Compensation: Law & Practice, at 1-1(3d ed. 2000) (“Historically, the origin of the modernworkers’ compensation system can be traced to Germany.In 1884, Germany enacted the first modern compensationsystem. Both philosophers and politicians played a role inthe birth of the compensation idea. Frederick the Greatbelieved it was the duty of the state to provide for thosewho could not provide for themselves. The philosopherJohann Fichte advanced this idea by expounding the viewthat ‘the misfortunes, disabilities and accidents areultimately social and not individual in origin.’...A significantfeature of the German workers’ compensation systemwas that the employee had to contribute to the cost of theinsurance coverage.”) (footnote omitted).6. See Pascal, supra note 5, at 1-1, 1-2. The 1897 actremoved negligence “as a condition of liability,” butretained “the common law of tort against the employer”for cases in which “the negligence or wilful act of theemployer” caused the injury. Epstein, supra note 3, at797-98(analyzing the Workmen’s Compensation Act of1897, 60 & 61 Vict., ch. 37 § 1(2)(b)).7. Epstein, supra note 3, at 787. Britain’s system displacedthe common law rules of liability, stating that employees“‘shall have the same right of compensation and remediesagainst the employer as if the workman had not been aworkman of nor in the service of the employer, nor engagedin his work.’” Id. at 788 (quoting English Employers’ LiabilityAct of 1880, 43 & 44 Vict., ch. 42 § 1). Though relievingemployees of the burden of employer defenses, the actretained the element of fault, thereby allowing recoveryonly where the employer acted negligently.8. See Pascal, supra note 5, at 1-2 (“In America, thecompensation principle underwent widespread study andexhaustive investigation. The first compensation act inthe United States was a modest cooperative accidentfund for miners which passed in Maryland in 1902. In1908, Massachusetts passed a law which permittedemployers and employees to voluntarily agree tocompensation arrangements. Maryland passed a similarstatute in 1910. Both state laws were doomed from theoutset because of apathy on the part of employers andemployees. However, the idea of a no-fault system ofcompensation designed to serve the public good, avoidlengthy litigation and protect the interest of employeesand employers had taken root.”).9. See N.Y. Cent. R.R. v. White, 243 U.S. 188, 197 (1917)(holding New York’s act constitutional, the Supreme Courtdeclared, “In support of the legislation, it is said that thewhole common-law doctrine of employer’s liability fornegligence, with its defenses of contributory negligence,fellow-servant’s negligence, and assumption of risk, isbased upon fictions, and is inapplicable to modernconditions of employment; that in the highly organizedand hazardous industries of the present day the causesof accident are often so obscure and complex that in amaterial proportion of cases it is impossible by any methodcorrectly to ascertain the facts necessary to form anaccurate judgment, and in a still larger proportion theexpense and delay required for such ascertainmentamount in effect to a defeat of justice; that under thepresent system the injured workman is left to bear thegreater part of industrial accident loss, which because ofhis limited income he is unable to sustain, so that he andthose dependent upon him are overcome by poverty andfrequently become a burden upon public or private charity;and that litigation is unduly costly and tedious, encouragingcorrupt practices and arousing antagonisms betweenemployers and employees.”).10. Larson, supra note 2, at 233.11. Id. at 206.12. Parke P. Deans, Workmen’s Compensation in Virginia4 (1938) (quoting Governor Stuart’s address on February


2, 1914).13. Richmond Cedar Works v. Harper, 129 Va. 481, 488,106 S.E. 516, 519 (1921) (“The Virginia act has featureswhich are common to nearly if not quite all such laws, andhas for its humane purpose the providing for all workmencoming within its provisions who are injured during thecourse of their employment of compensation thereforwhich is certain in amount without deduction.”).14. Humphrees v. Boxley Bros. Co., 146 Va. 91, 96, 135 S.E.890, 891 (1926) (quoting Stertz v. Indus. Ins. Comm’n, 91Wash. 588, 590, 91, 158 P. 256, 258 (1916)) (emphasisadded).15. This too had its antecedents in English and Germanlaw. “The English Act of 1897 provided that nocompensation should be allowed if the injury to theworkman was attributable to willful and seriousmisconduct, and under the German law the workman isstill barred by his own gross carelessness.” Francis H.Bohlen, A Problem in the Drafting of Workmen’sCompensation Acts, 25 Harv. L. Rev. 328, 334 (1911-12);see also Va. Code Ann. § 65.2-306(A) (2005) (“Nocompensation shall be awarded to the employee or hisdependents for an injury or death caused by... [t]heemployee’s willful misconduct or intentional self-inflictedinjury....”).16. See Keeton, et al., supra note 2, § 80 at 573 (“Theemployer is charged with the injuries arising out of hisbusiness, without regard to any question of his negligence,or that of the injured employee. He is liable for injuriescaused by pure unavoidable accident, or by the negligenceof the worker.”); Larson, supra note 2, at 208 (“Let theemployer’s conduct be flawless in its perfection, and letthe employee’s be abysmal in its clumsiness, rashnessand ineptitude: if the accident arises out of and in thecourse of the employment, the employee receives theaward. Reverse the positions, with a careless and stupidemployer and a wholly innocent employee: the sameaward issues.”). Workers’ compensation systems, Larsonargued, differed from a tort regime because of its “socialphilosophy, its relation of awards to disability rather thanloss, and its distribution of the cost to the consumer.” Id.at 216.17. Larson, supra note 2, at 208.18. Id.19. See Fauver v. Bell, 192 Va. 518, 523, 65 S.E.2d 575,578 (1951) (“Workmen’s compensation acts bring theemployee’s recovery against the employer to a lower levelof compensation than that of damages recoverable atcommon law. The divergence arises from the differentpurposes of the two recoveries.”). The minimal nature ofawards serves three purposes: (i) to “keep down theoverall costs of the plan, which will induce employers tocontinue to hire labor,” (ii) to “prevent fraud against theplan, as there is less to gain by pretending that an injury,or its consequences, is work-related,” and (iii) to “createadditional incentives upon the worker for self-protectionand therefore act as an implicit substitute for assumptionof risk and contributory negligence.” Epstein, supra note3, at 800-01.20. Larson, supra note 2, at 214.21. Id. at 210. Allowing full recovery and restoration forworkplace injuries, Larson cautioned, would “encouragemalingering and trumped-up claims.” Id. at 214. It is for thisreason that “the amount of compensation awarded maybe expected to go not much higher than is necessary tokeep the worker from destitution.” Id. at 213. ProfessorEpstein echoed this sentiment: “In exchange for the broadcoverage formula, the workman received a level ofcompensation that, by design, left him worse off than if theinjury itself had never taken place.” Epstein, supra note 3,at 800 (emphasis in original). And by not bestowing“ownership” of the award on the recipient, the workers’compensation system “goes no further in nature, amountor duration than the necessities of that protection require.”Larson, supra note 2, at 214.22. See Larson, supra note 2, at 217 (“The real clue to thecharacter of each system is the source of financing: in theAmerican it is typically premiums paid by the employer andpassed on to a particular consuming group.”).23. Id. at 218 (observing that this framework “retains arelation between the hazardousness of particularindustries and the cost of the system to that industry andconsumers of its product”).24. Roller v. Basic Constr. Co., 238 Va. 321, 327, 382 S.E.2d323, 325 (1989) (“As frequently stated, the Workers’Compensation Act (the Act) is based upon a quid pro quo,a societal exchange wherein employees are provided apurely statutory form of compensation for industrialinjuries.”).25. See N.Y. Cent. R.R., 243 U.S. at 201 (“If the employeeis no longer able to recover as much as before in case of

being injured through the employer’s negligence, he isentitled to moderate compensation in all cases of injury,and has a certain and speedy remedy without the difficultyand expense of establishing negligence or proving theamount of the damages.”).26. See Potomac Elec. Power Co. v. Dir., 449 U.S. 268, 282n.24 (1980) (“Workmen’s compensation acts are in thenature of a compromise or quid pro quo between employerand employee.... Employees, on the other hand, ordinarilygive up the right of suit for damages for personal injuriesagainst employers in return for the certainty ofcompensation payments as recompense for thoseinjuries.” (quoting 1 M. Norris, The Law of Maritime PersonalInjuries § 55, at 102 (3d ed. 1975))); N.Y. Cent. R.R., 243U.S. at 204 (“Nor can it be deemed arbitrary andunreasonable, from the standpoint of the employee’sinterest, to supplant a system under which he assumedthe entire risk of injury in ordinary cases, and in others hada right to recover an amount more or less speculativeupon proving facts of negligence that often were difficultto prove, and substitute a system under which in all ordinarycases of accidental injury he is sure of a definite and easilyascertained compensation, not being obliged to assumethe entire loss in any case but in all cases assuming anyloss beyond the prescribed scale.”); see also Jason M.Solomon, Fulfilling The Bargain: How The Science OfErgonomics Can Inform The Laws Of Workers’Compensation, 101 Colum. L. Rev. 1140, 1145-46 (2001)(“The workers’ compensation ‘bargain’ between employersand employees was intended to be simple: In exchangefor immunity from tort actions, employers would provideemployees with swift, though limited, compensation....This balancing embraced the original bargain.”); Eston W.Orr Jr., Note, The Bargain is No Longer Equal: StateLegislative Efforts To Reduce Workers’ CompensationCosts Have Impermissibly Shifted The Balance Of TheQuid Pro Quo In Favor Of Employers, 37 Ga. L. Rev. 325,326 (2002) (recognizing that the “quid pro quo, known asthe ‘workers’ compensation bargain,’” formed a “statutorycompromise between employer and employee” thatbecame “the cornerstone of the entire workers’compensation framework”); Theodore F. Haas, OnReintegrating Workers’ Compensation and Employers’Liability, 21 Ga. L. Rev. 843, 858 (1987) (“Employers giveup the limited scope of tort liability in return for the limitedamount of liability under workers’ compensation.Employees give up the possibility of the greater recoveryunder tort law in return for a speedy and certain paymentthat fully covers their medical expenses and partiallyreplaces their lost wages.”).27. Epstein, supra note 3, at 805.28. D. Arthur Kelsey, The Architecture of Judicial Power:Appellate Review & Stare Decisis, 53 Va. Lawyer, No. 3, at13, 14-15 (Oct. 2004) (citations omitted), available athttp://www.vsb.org/publications/valawyer/oct04/index.html.29. Id.30. See Roller, 238 Va. at 327, 382 S.E.2d at 325-26 (“Asfrequently stated, the Workers’ Compensation Act (theAct) is based upon a quid pro quo, a societal exchangewherein employees are provided a purely statutory formof compensation for industrial injuries.”); Fauver, 192 Va.at 522, 65 S.E.2d at 577 (“Rights granted and obligationsimposed are limited as granted or imposed by the Act andare in their nature contractual.”); Humphrees, 146 Va. at95, 135 S.E. at 891 (“It is said to be in the nature of acompromise between employer and employee to settletheir differences arising out of personal injuries, but it is acompromise greatly to the advantage of the employee.”);see also Pascal, supra note 5, at 2-28, 2-29 (“The law, ineffect, represents a compromise.”).31. Va. Code Ann. § 65.2-200(D) (2005).32. Va. Code Ann. § 65.2-200(B) (2005).33. Epstein, supra note 3, at 819.34. Id. at 809.35. Orr, supra note 26, at 332.36. See, e.g., Editorial, Workers’ Comp System is Broke, SoFix It, Dallas Morning News, June 1, 2004, at 10A (citing anadvisory commission’s “staff report on the Texas Workers’Compensation Commission” that “offers some usefulideas for overhauling a system that fails workers andemployers”); Opinion, Haste Makes . . . Legislature Rushinga Workers’ Comp Fix, San Diego Union-Tribune, April 16,2004, at B-8 (noting that the California “Legislature ispoised to approve a workers’ compensation proposalaimed at wringing waste out of the $29 billion system”);Jerome R. Stockfisch, Year-Old Workers’ Comp Law LeavesMark, Tampa Tribune, April 13, 2004, at 1 (“Lawmakerstackled workers’ compensation last year after employers,doctors, lawyers and workers convinced them that thestate was in crisis. A 2001 survey showed Florida with the

second-highest workers’ compensation premiums in thecountry. Yet benefits to injured workers were among thelowest.”); Tom Abate, Workers’ Compensation Crisis;System Seen as Ripe for Overhaul; Lawmakers TackleReforms; Ballot Measure Threatened, S. F. Chron., March29, 2004, at A1 (noting that “California employers saythey’re being crushed by the nation’s highest insurancepremiums and want reforms to curb soaring medical anddisability costs”); Peter Nicholas, et al., Governor Turns HisAttention to Troubled Workers’ Comp; Schwarzenegger,Fresh from Victory on Two Propositions, Readies for HisNext Challenge, L.A. Times, March 4, 2004, at B-1 (notingthat the California workers’ comp system “is widely blamedfor chasing business to states where insurance costs arestable”); Bob Gary Jr., Georgia, Tennessee BusinessesCrave Insurance Reform, Chattanooga Times Free Press,Jan. 18, 2004, at G1 (quoting “state Chamber of Commercehead Deb Woolley” who observed that “overhaulingworkers’ compensation is ‘an absolute must,’ because it“‘gives (judges) a lot of latitude to impose their will,’” andis “‘not fair to employees because it’s not consistent andemployers are getting astronomical costs’”); Charles Stein,Hoping for Mine Gold from the Golden State Romney,Other Governors See Chance to Woo Firms Away, BostonGlobe, Nov. 20, 2003, at C-1 (writing that Massachusettshopes to lure businesses from California where “workers’compensation costs . . . have almost tripled in four years”).37. D. Arthur Kelsey, supra note 28, at 17 (citations omitted).38. D. Arthur Kelsey, Law & Politics: The Imperative ofJudicial Self-Restraint, 28 VBA News Journal No. 6, at 8(Sept. 2002), available at www.vba.org/sept02.htm.39. Id.40. 1 Arthur Larson & Lex K. Larson, Larson’s Workers’Compensation Law § 3.01, at 3-2 (2003).41. Id.42. Id. § 3.01, at 3-3.43. Id. § 3.01, at 3-4.44. Id. § 3.02, at 3-4.45. Id.46. Id. § 3.03, at 3-4.47. Id. (emphasis in original).48. Id. § 3.04, at 3-5 (emphasis in original).49. See County of Chesterfield v. Johnson, 237 Va. 180,185, 376 S.E.2d 73, 76 (1989) (stating that Virginia courts“do not apply the positional risk test used in otherjurisdictions where simply being injured at work is sufficientto establish compensability”).50. Combs v. Va. Elec. & Power Co., 259 Va. 503, 510, 525S.E.2d 278, 282 (2000) (“In Virginia, we apply an ‘actualrisk test,’ meaning that the employment must expose theemployee to the particular danger causing the injury,notwithstanding the public’s exposure generally to similarrisks.”).51. Id. at 509-10, 525 S.E.2d at 282 (quoting In re Employers’Liab. Assur. Corp., 102 N.E. 697, 697 (Mass. 1913))(emphasis added). Massachusetts has since discardedthe peculiar risk doctrine and adopted the positional risktest. See Albert v. Welch, 274 N.E.2d 821, 822 (Mass.1971) (“The definition of ‘arising out of’ is very broad. ‘Aninjury arises out of the employment if it arises out of thenature, conditions, obligations or incidents of theemployment; in other words, out of the employmentlooked at in any of its aspects.’”); see also Milledge v. TheOaks, 784 N.E.2d 926, 932 (Ind. 2003) (citing Baran’sCase, 145 N.E.2d 726, 727 (Mass. 1957), to support itsholding that “the positional risk doctrine is the appropriateanalytical tool for resolving questions concerning injuriesthat result from neutral risks. It has been adopted by amajority of jurisdictions that have spoken on the subject.”). More significant, however, is the Indiana Supreme Court’sadoption of the positional risk test in Milledge for neutralrisks not incurred as a result of intentional torts. Indianahas recognized the positional risk doctrine since the 1980sfor injuries arising as a result of intentional torts. See K-Mart Corp. v. Novak, 521 N.E.2d 1346, 1349 (Ind. App.1988) (“[T]his court will determine whether Margaret’sdeath arose out of her employment based on the ‘positionalrisk’ test.”). For years Virginia courts have stated that the“Virginia Workmen’s Compensation Act is based upon theIndiana statute, so that the construction placed upon theIndiana law by the courts of that state merits ourconsideration.” Barksdale v. H. O. Engen, Inc., 218 Va. 496,499, 237 S.E.2d 794, 796 (1977); see also Basham v. R. H.Lowe, Inc., 176 Va. 485, 494, 11 S.E.2d 638, 642 (1940)(“The holding of the Indiana court is peculiarly persuasivewith us because the Virginia act is based upon that ofIndiana.”); H.J. Holz & Son, Inc. v. Dumas-Thayer, 37 Va.App. 645, 655, 561 S.E.2d 6, 12 (2002) (basing its decision,in part, on Indiana law because “[t]he holding of theIndiana court is peculiarly persuasive with us”).52. After stating the test as whether the employment


ACROSS THE COMMONWEALTHTransmission v. Sheetz, 18 Va. App. 647, 650, 446 S.E.2d473, 475 (1994) (“[W]e will not reverse a factual findingwhere credible evidence exists in support thereof.”).73. See Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83-84, 608 S.E.2d 512, 517 (2005) (en banc) (recognizing thatjudges “do not judge the credibility of witnesses or weighthe evidence on appeal” but are “bound by thecommission’s findings of fact as long as there was credibleevidence presented such that a reasonable mind couldconclude that the fact in issue was proved....” (quotationmarks & citations omitted) (emphasis in original)).74. Exactly the same standard of appellate review appliesto factfinding in criminal and civil cases. See generallySeaton v. Commonwealth, 42 Va. App. 739, 746-48 & n.2,595 S.E.2d 9, 12-13 & n.2 (2004); Crowder v.Commonwealth, 41 Va. App. 658, 662-63, 588 S.E.2d 384,386-87 (2003).75. Ramesh Murthy, What is the Value of the Appeal as aMatter of Right in a Workers’ Compensation Case?, 14Journal of Civil Litigation 221 (2002) (After noting thatduring a three-year study period less than 5% of appealsto the Virginia Court of Appeals were successful, the authorreached the obvious conclusion that the “ability to appeala case from the Commission to the Court as a matter ofright is of little, if any, value in cases involving purely aquestion of fact.”).76. Gallahan v. Free Lance Star Publ’g, 41 Va. App. 694,698, 589 S.E.2d 12, 15 (2003) (citations omitted).77. Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 634-35,593 S.E.2d 568, 571 (2004) (recognizing principle undergeneral administrative agency law); see Meador v. Va.Birth-Related Neurological Injury Comp. Program, 44 Va.App. 149, 152, 604 S.E.2d 88, 90 (2004) (reviewing thecommission’s interpretation of the Act de novo).78. Gallahan, 41 Va. App. at 700, 589 S.E.2d at 15.79. See Boyd v. People, Inc., 43 Va. App. 82, 596 S.E.2d 100(2004) (plurality deferring to the point of finding noinconsistency; concurrence finding inconsistencysufficient to jettison deference; dissent findinginconsistency sufficient to remand for reconsideration).80. See, e.g., Morris v. Rite Aid Corp., VWC File No. 217-82-14, 2005 Va. Wrk. Comp. LEXIS 425, at *9 (May 26, 2005)(“In most instances, the full Commission defers to a DeputyCommissioner’s credibility determinations regardingwitnesses the deputy observed first hand and from whomimpressions were formed.); Hamilton v. Polymers, VWCFile No. 206-85-50, 2003 Va. Wrk. Comp. LEXIS 1044, at*20-21 (June 10, 2003) (“The Commission functions as atrier of fact, but it cannot and should not ignore a DeputyCommissioner’s factual determination.... Unless we findthat the Deputy Commissioner’s determination is plainlyin error, based upon the record at the Hearing, we arereluctant to reverse his factual findings.” (citing Va. RealEstate Bd. v. Kline, 17 Va. App. 173, 435 S.E.2d 596(1993))); Fowler v. Goodyear Tire & Rubber Co., VWC 206-50-70, 2003 Va. Wrk. Comp. LEXIS 91, at *13 (Jan. 31, 2003)(“While the Commission reviews the record and makesfactual determinations, it should not arbitrarily disregardthe Deputy Commissioner’s factual determinations thatare supported by the evidence.”); Vaughn v. Am. Furnitureof Martinsville, VWC File No. 205-03-82, 2002 Va. Wrk.Comp. LEXIS 1322, at *11 (June 24, 2002) (“While we arenot bound by the Deputy Commissioner’s credibility finding,we do not arbitrarily or lightly reject it.”); Harsh v. WalgreenDrug Store, VWC File No. 204-17-00, 2002 Va. Wrk. Comp.LEXIS 1298, at *5-6 (June 26, 2002) (“‘Most of the factorsaffecting credibility appear in the record. The commissioncan evaluate the testimony of witnesses in the light ofhuman experience, ascertain which testimony is moreworthy of belief, and grant to it its appropriate weight.’”(quoting Goodyear Tire and Rubber Company v. Pierce, 9Va. App. 120, 126, 384 S.E.2d 333, 337 (1989) (Pierce II))).This rule stems from the commonsensical observationthat the deputy “has the best opportunity to observe theappearance and demeanor of the witness.” Blue RidgeMkt. of Va. v. Patton, 39 Va. App. 592, 600-01, 575 S.E.2d574, 578 (2003) (quoting Goodyear Tire & Rubber Co. v.Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987)(Pierce I)); cf. Gardner v. Branch Group, Inc., VWC File No.217-50-46, 2005 Va. Wrk. Comp. LEXIS 154, at *7 n.2 (Feb.23, 2005) (noting that the “Deputy Commissioner was notbetter situated than the Commission to ascertain theveracity” of one’s testimony who had only “testified bydeposition”).81. Martin v. Bleu Water of Richmond, VWC File No. 207-41-89, 2003 Va. Wrk. Comp. LEXIS 105, at *7-8 (Jan. 13,2003) (“The Commission may not reverse the credibilityfindings of a Deputy Commissioner arbitrarily. However,the Commission may reverse a Deputy Commissioner’sfactual findings, including credibility determinations, whenit articulates a basis for its different conclusion that is

Plastering v. Johnson, 265 Va. 237, 244, 576 S.E.2d 447,451-52 (2003) (“To be a compensable injury, the causationlink ‘must directly connect the original accidental injurywith the additional injury for which compensation issought.’ ... Without any direct link between an injurycaused by the industrial accident and the injury for whichcompensation is sought, there can be no compensation.”(citations omitted)).62. “Whatever views we might have had on the questionas an original proposition, it is now well settled by unanimityof decisions, both in England and in this country, thatalthough the injury is the result of the wilful and intentionalassault of either a fellow-employee or a third person, thisfact does not prevent the injury from being accidentalwithin the meaning of the act.” Continental Life Ins. Co. v.Gough, 161 Va. 755, 759, 172 S.E. 264, 266 (1934); seealso Snead v. Harbaugh, 241 Va. 524, 526-27, 404 S.E.2d53, 54 (1991) (noting that ‘intentional torts by co-workersare within the contemplation of the term ‘accident’ underthe Act”); Braxton, 230 Va. at 165, 335 S.E.2d at 262 (“Inan assault case claimed to arise out of the employment,the necessary causal connection may be established ifthe evidence shows that the attack was directed againstthe claimant as an employee [or] because of theemployment.”); Carr v. City of Norfolk, 15 Va. App. 266, 269,422 S.E.2d 417, 418 (1992) (citing Braxton for theproposition that an assault may arise out of theemployment in certain circumstances).63. Richmond Newspapers v. Hazelwood, 249 Va. 369,373, 457 S.E.2d 56, 58 (1995); see also Braxton, 230 Va.at 165, 335 S.E.2d at 262; Reamer v. Nat’l Serv. Indus., Inc.,237 Va. 466, 470, 377 S.E.2d 627, 629 (1989) (noting that“if the assault was personal to the employee and was notdirected against him as an employee, or because of hisemployment, then the injury is not compensable” (quotingGough, 161 Va. at 759-60, 172 S.E. at 266)); Dublin GarmentCo. v. Jones, 2 Va. App. 165, 168, 342 S.E.2d 638, 639(1986) (finding that injury arising “from the unilateral actof a co-worker upon a nonparticipating claimant,” in thiscase “horseplay,” was covered by the Act).64. Hazelwood, 249 Va. at 373, 475 S.E.2d at 58.65. See generally Aistrop v. Blue Diamond Coal Co., 181Va. 287, 293, 24 S.E.2d 546, 548 (1943) (adopting the ruleexcluding gradually incurred injuries from the definition of“injury by accident”).66. See, e.g., Lichtman v. Knouf, 248 Va. 138, 140, 445S.E.2d 114, 115 (1994) (barring an infliction of emotionaldistress claim); Middlekauff v. Allstate Ins. Co., 247 Va.150, 154, 439 S.E.2d 394, 397 (1994) (barring a harassmentand infliction of emotional distress claim); Haddon v. Metro.Life Ins. Co., 239 Va. 397, 398, 389 S.E.2d 712, 713 (1990),overruled by Middlekauff, 247 Va. at 154, 439 S.E.2d at397 (finding injuries arising from harassment and sexdiscrimination fall under the Act). Though Middlekauffoverruled Haddon, it did so only “to the extent that itplaced gradually incurred injuries within the definition of‘injury by accident.’” Middlekauff, 247 Va. at 154, 439S.E.2d at 397. It did not take issue with the generalinapplicability of the Act to intentional torts in theworkplace.67. See Carr, 15 Va. App. at 269, 422 S.E.2d at 419 (notingthat “it is factually difficult to separate a purely personalsexual assault from one that is only directed against thevictim as an employee or because of the employment”).68. See Pfeifer v. Krauss Constr. Co. of Va., 262 Va. 262,266-67, 546 S.E.2d 717, 719 (2001) (noting that “astatutory co-employee of the injured worker, is alsoentitled to the common law immunity provided by theexclusivity provision”).69. In one narrow area, the Virginia General Assembly hascome to just that conclusion. Va. Code Ann. § 65-301(A)(2005) provides compensation coverage to any employee“sexually assaulted” (as that phrase is used in the criminalcode) if the employee can prove that the nature of theemployment “substantially” increased the risk of theassault. This coverage, however, does not come with thehigh price of immunizing the perpetrator of the assault.Subsection B of the statute permits the employee to electbetween receiving compensation benefits or asserting atort claim against the “attacker, even if the attacker is theassaulted employee’s employer or co-employee . . . .”70. “Punitive damages are designed to punish offensiveor unlawful conduct and deter it in the future.” Wilkins v.Peninsula Motor Cars, 266 Va. 558, 563, 587 S.E.2d 581,584 (2003).71. Cent. Va. Obstetrics & Gynecology Assocs. v. Whitfield,42 Va. App. 264, 279, 590 S.E.2d 631, 639 (2004).72. See Marshall v. Craft Forklift, Inc., 41 Va. App. 777, 779,589 S.E.2d 456, 457 (2003) (“Decisions of the commissionas to questions of fact, if supported by credible evidence,are conclusive and binding on this Court.”); Dunrite

posed a “special or peculiar risk” of injury, the VirginiaCourt of Appeals explained that this “position recognizesthe causal connection required by the actual risk test thatVirginia follows.” Lucas v. Fed. Express Corp., 41 Va. App.130, 135, 583 S.E.2d 56, 59 (2003) (citing, for the peculiarrisk doctrine, Elmer H. Blair, Reference Guide to Workmen’sCompensation § 9.02 (1974)). In a footnote, Lucas notedthe apparent disconnect. Id. at 135 n.3, 583 S.E.2d at 59n.3. See also Hill v. S. Tank Transp., Inc., 44 Va. App. 725,731 n.1, 607 S.E.2d 730, 733 n.1 (2005) (stating “Virginiahas refused to embrace the ‘positional risk’ doctrine andremains an ‘actual risk’ jurisdiction” (citation omitted)).53. United Parcel Serv. v. Fetterman, 230 Va. 257, 258,336 S.E.2d 892, 892 (1985) (emphasis added). Fettermancontinues, however, by stating that “[t]he causative dangermust be peculiar to the work,” invoking the peculiar risktest. Id.54. Va. Employment Comm'n v. Hale, 43 Va. App. 379, 598S.E.2d 327 (2004), relied on Lucas to reverse an award ofbenefits in a lightning case. Reciting the "actual risk" testas controlling, Hale analyzed the facts to determine if theemployee faced a "heightened" or "greater" risk of beingstruck by lightning than the average person. Id. at 386-87,598 S.E.2d at 330-31.55. See Lucas, 41 Va. App. at 136, 583 S.E.2d at 59-60.56. See supra note 51.57. See generally Kjellstrom & Lee, Inc. v. Saunders, 42 Va.App. 673, 678, 594 S.E.2d 281, 283 (2004) (quoting Combs,259 Va. at 510, 525 S.E.2d at 282) (“[I]f there is a causalconnection between [a claimant’s] injury and theconditions of her employment, then her injury arose out ofher employment.”); see also Richmond v. Braxton, 230 Va.161, 164, 335 S.E.2d 259, 261 (1985) (“But it excludes aninjury which cannot fairly be traced to the employment asa contributing proximate cause....” (quoting R & TInvestments v. Johnson, 228 Va. 249, 252-53, 321 S.E.2d287, 289 (1984))). Adopting this inquiry has ignoredLarson’s observation that “[a]lmost every major error thatcan be observed in the development of compensationlaw, whether judicial or legislative, can be traced ... to theimportation of tort ideas....” Larson, supra note 2, at 208.58. See Larson, supra note 2, at 208 (“The essence ofapplying the test is not a matter of assessing blame, but ofmarking out boundaries.”). The proximate cause inquiry isrelevant only to ascertain whether a non-workplaceaccident is the true source of the injury suffered.59. See Solomon, supra note 26, at 1153-54 (observingthat the question of liability “is compounded by the factthat doctors and lawyers tend to have very differentunderstandings of what constitutes causation. In medicine,causation is discoverable by scientific proof, while in law,causation is a means of assigning the burden of persuasionbased on policy considerations. It is commonly observedthat medical causation is a more demanding standardthan legal causation, but the inquiries are also simplydifferent.”).60. See Sturtz v. Chesapeake Corp., 38 Va. App. 672, 677,568 S.E.2d 381, 384 (2002) (“‘[W]hen a primary injuryunder the Workmen’s Compensation Act is shown to havearisen out of the course of employment, every naturalconsequence that flows from the injury is compensable ifit is a direct and natural result of a primary injury.’” (quotingLeonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99(1977))). If not medically caused by the original injury, asubsequent injury is new and separate and not acompensable consequence. See id. at 677-78, 568 S.E.2dat 384 (“[I]f the evidence shows that the subsequentinjury did not naturally flow from a progression,deterioration, or aggravation of the initial injury, then thesubsequent injury is the result of a new and separateaccident, not a change in condition.”); Fuller v. MeadowCreek Wood Shop, VWC File No. 211-18-55, 2004 Va. Wrk.Comp. LEXIS 139, at *7 (Jan. 21, 2004) (“The doctrine ofcompensable consequences provides that when ‘theprimary injury is shown to have arisen out of and in thecourse of employment, every natural consequence thatflows from the injury likewise arises out of the employment,unless it is the result of an independent intervening causeattributable to claimant’s own intentional conduct.’”(citation omitted)).61. See, e.g., Amoco Foam Prods. Co. v. Johnson, 257 Va.29, 33, 510 S.E.2d 443, 444-45 (1999) (“[I]t does notlogically follow that merely because the 1994 injury wascausally related to the 1992 accident and the 1995 injurywas causally related to the 1994 injury, then the 1995injury was causally related to the 1992 accident. The linkof causation must directly connect the original accidentalinjury with the additional injury for which compensation issought. Thus, the Court of Appeals erred in holding thatclaimant’s November 1995 knee injury was a compensableconsequence of her 1992 ankle injury.”); Paul Johnson


supported by credible evidence in the record.”); see alsoBlunt v. The Paradies Gift Shop, VWC File No. 216-82-93,2005 Va. Wrk. Comp. LEXIS 416, at *11 (May 26, 2005)(dissent) (arguing the “majority should not substitute itsrecords-review conclusion for the opinion of the DeputyCommissioner, who actually saw the claimant and was inthe best position to judge credibility”).82. The commission ordinarily defers to its deputy’scredibility findings based upon witness “demeanor andappearance,” but need not defer to findings relying onlyon the “substance of the testimony.” Grayson Sch. Bd. v.Cornett, 39 Va. App. 279, 286 n.2, 572 S.E.2d 505, 508 n.2(2002) (quoting Pierce I, 5 Va. App. at 383, 363 S.E.2d at438). While this rule does not render a deputy’s factualfinding “unreviewable simply by asserting that hisconclusion as to a witness’ credibility is based on thewitness’ appearance and demeanor,” Williams v. AutoBrokers, 6 Va. App. 570, 574, 370 S.E.2d 321, 323 (1988),to reject such a finding the commission must provide somereasoned explanation for coming to a “differentinterpretation” of the witness credibility. Id. at 573, 370S.E.2d at 323. If such an explanation has been offered bythe commission and any credible evidence supports it, thecommission may “reverse the factual findings of the deputycommissioner, including a credibility determination basedon behavior, appearance and demeanor.” Pierce II, 9 Va.App. at 127, 384 S.E.2d at 337 (appeal after the remandordered in Pierce I); see also Turcios v. Holiday Inn FairOaks, 24 Va. App. 509, 515, 483 S.E.2d 502, 505 (1997)(“The commission is not constrained to accept the credibilityfindings of a deputy commissioner. However, the decisionto reverse such findings cannot be rendered arbitrarily.”);Bullion Hollow Enters., Inc. v. Lane, 14 Va. App. 725, 729,418 S.E.2d 904, 907 (1992).83. D. Arthur Kelsey, Law & Equity in Virginia, 28 VBA NewsJournal No. 8, at 6 (Dec. 2002), available at www.vba.org/dec02.htm.84. Id.85. Lam v. Kawneer Co., 38 Va. App. 515, 519-20, 566S.E.2d 874, 876 (2002) (“The equitable power of thecommission, as exemplified in the doctrine of imposition,includes the power to ‘render decisions based on justiceshown by the total circumstances even though no fraud,mistake or concealment has been shown.’” (citationsomitted)); Avon Prods. Inc. v. Ross, 14 Va. App. 1, 7, 415S.E.2d 225, 228 (1992).86. Lam v. Kawneer Co., VWC File No. 133-97-76, 2001 Va.Wrk. Comp. LEXIS 4050, at *9-10 (Oct. 16, 2001), aff’d, 38Va. App. 515, 519-20, 566 S.E.2d 874, 876 (2002). Asrepresentative examples of imposition, the commission inLam cited Harris v. Diamond Constr. Co., 184 Va. 711, 720,36 S.E.2d 573, 577 (1946) (employee’s counsel mistakenlymade unauthorized settlement of claim); Avon Prods. Inc.,14 Va. App. at 8, 415 S.E.2d at 229 (finding that the“actions of the employer and its carrier created animposition on the commission and the claimant whichempowered the commission to ‘do full and completejustice’”); John Driggs Co. v. Somers, 228 Va. 729, 734, 324S.E.2d 694, 697 (1985) (employer, using superiorknowledge and economic leverage, unfairly calculatedemployee’s weekly wage); Odom v. Red Lobster #235, 20Va. App. 228, 456 S.E.2d 140 (1995) (actions by both theemployer and the Commission led employee not to file aclaim).87. Washington v. UPS of Am., 267 Va. 539, 546, 593 S.E.2d229, 232 (2004) (“The doctrine of imposition grants theCommission ‘jurisdiction to do full and complete justice ineach case.’” (quoting Harris, 184 Va. at 720, 36 S.E.2d at577)); Overhead Door Co. v. Lewis, 29 Va. App. 52, 59 n.5,509 S.E.2d 535, 538 n.5 (1999).88. Lam, 38 Va. App. at 517, 566 S.E.2d at 875.89. Id. at 520, 566 S.E.2d at 876.90. See McFadden v. Carpet House, 42 Va. App. 302, 591S.E.2d 708 (2004) (allowing an employee to retain wagebenefits after returning to work); Genesis HealthVentures, Inc. v. Pugh, 42 Va. App. 297, 591 S.E.2d 706(2004) (allowing an employee to recover wage benefitsafter returning to work).91. Uninsured Employer’s Fund v. Peters, 43 Va. App. 731,601 S.E.2d 687 (2004).92. See, e.g., Stuart Circle Hosp. v. Alderson, 223 Va. 205,209, 288 S.E.2d 445, 447 (1982); Barksdale v. H.O. Engen,Inc., 218 Va. 496, 497, 237 S.E.2d 794, 795 (1977); Shawleyv. Shea-Ball Constr. Co., 216 Va. 442, 445, 219 S.E.2d 849,852 (1975); Binswanger Glass Co. v. Wallace, 214 Va. 70,73, 197 S.E.2d 191, 193-94 (1973); Blue Diamond Coal Co.v. Pannell, 203 Va. 49, 50, 122 S.E.2d 666, 667 (1961);Winston v. City of Richmond, 196 Va. 403, 410, 83 S.E.2d728, 732 (1954); Massey Builders Supply Corp. v. Colgan,36 Va. App. 496, 502, 553 S.E.2d 146, 149 (2001); LynchburgFoundry Co. v. McDaniel, 22 Va. App. 307, 310, 469 S.E.2d

85, 87 (1996); Mayberry v. Alcoa Building Prods., 18 Va.App. 18, 20, 441 S.E.2d 349, 350 (1994).93. Stuart Circle Hosp., 223 Va. at 208, 288 S.E.2d at 447.94. Safeway Stores, Inc. v. McGowan, No. 0895-99-2, 2000Va. App. LEXIS 140, at *5 (Feb. 29, 2000) (interpretingShawley v. Shea-Ball Constr. Co., 216 Va. 442, 219 S.E.2d849 (1975), to hold that “the commission lacked subjectmatter jurisdiction to award benefits for injury to theclaimant’s right ankle and back, where the only injuries forwhich he filed a timely claim were to his left ankle and righthip”); Gross v. Wyeth-Ayerst Labs., VWC File No. 182-73-27,2000 Va. Wrk. Comp. LEXIS 503 at *9 (April 11, 2000) (“Thisclaim is untimely as it relates to an alleged neck injury, andthe Commission lacks subject matter jurisdiction.”), aff’dper curiam, No. 1081-00-2 (Va. Ct. App. Oct. 10, 2000).95. Because subject matter jurisdiction fundamentallyempowers a court to act, “an order issued by a courtwithout subject matter jurisdiction is, in the eyes of thelaw, no order at all. It is ‘void ab initio,’ a ‘complete nullity.’”De Avies v. De Avies, 42 Va. App. 342, 346, 592 S.E.2d 351,353 (2004) (en banc) (citations omitted).96. Safeway Stores, Inc. v. McGowan, No. 0895-99-2, 2000Va. App. LEXIS 140, at *7 (Feb. 29, 2000) (“Therefore, thedoctrine of res judicata provides no exception to the wellaccepted principle of law that lack of subject matterjurisdiction may be raised in any court at any time and ajudgment rendered by a court lacking subject matterjurisdiction is void ab initio.”).97. “Estoppel bars a plea of the statute of limitations if aworker relied on an employer’s acts or statements to herdetriment and refrained from filing a claim.” Harris v. Va.Beach Gen. Hosp., 38 Va. App. 187, 191, 562 S.E.2d 365,367 (2002) (discussing these concepts in a change-of-condition case); see also Jenkins v. Ford Motor Co., 27 Va.App. 281, 288, 498 S.E.2d 445, 449 (1998). In this context,imposition, which empowers the commission “to do fulland complete justice,” can also bar an employer fromraising the statute of limitations as a defense. Strong v.Old Dominion Power Co., 35 Va. App. 119, 126, 543 S.E.2d598, 601 (1998); see also Niblett v. Piedmont Aviation,Inc., 12 Va. App. 652, 405 S.E.2d 635 (1991) (recognizingfraud and concealment in a change of condition case);Avon Prods., Inc., 14 Va. App. at 8, 415 S.E.2d at 229(recognizing imposition); Cibula v. Allied Fibers & Plastics,14 Va. App. 319, 416 S.E.2d 708 (1992), aff’d, 245 Va. 337,428 S.E.2d 905 (1993) (equitable estoppel).98. See, e.g., Ins. Corp. of Ireland, Ltd. v. Compagnie desBauxites de Guinee, 456 U.S. 694, 702 (1982) (“[N]oaction of the parties can confer subject matter jurisdictionupon a ... court. Thus the consent of the parties isirrelevant.”); Humphreys v. Commonwealth, 186 Va. 765,772, 43 S.E.2d 890, 894 (1947) (“Jurisdiction of the subjectmatter can only be acquired by virtue of the Constitutionor of some statute. Neither the consent of the parties, norwaiver, nor acquiescence can confer it.”); Nolde Bros., Inc.v. Chalkley, 184 Va. 553, 560-61, 35 S.E.2d 827, 830 (1945)(“No consent of parties can confer [subject matterjurisdiction] and a judgment outside of the jurisdiction soconferred is simply void.”); Jones v. Commonwealth, 42 Va.App. 142, 147, 590 S.E.2d 572, 574 (2004) (en banc) (“It iswell settled that subject matter jurisdiction cannot beconferred by agreement or consent.”).99. See Brickey v. Pardee Coal Co., VWC File No. 186-35-42,2005 Va. Wrk. Comp. LEXIS 660 (Aug. 30, 2005) (Diamond,Comm., dissenting in part); Justus v. Maranatha Mining &Leasing, Inc., VWC File No. 182-04-58, 2005 WL 1596231(JUNE 30, 2005) (Diamond, Comm., dissenting in part);Canfield v. AAC Consulting Group, Inc., VWC File No. 203-28-58, 2005 Va. Wrk. Comp. LEXIS 16 (Jan. 28, 2005)(Diamond, Comm., concurring).100. “The established rule of liberal construction requiresthat the priority act be applied having regard to the publicgood it was intended to advance. Its application is not tobe narrowly restricted to the cases within the literal andtechnical meaning of the words used.” Bramwell v. UnitedStates Fid. & Guar. Co., 269 U.S. 483, 492 (1926); see alsoBlack’s Law Dictionary 313 (6th ed. 1990) (“Liberal [orequitable] construction ... expands the meaning of thestatute to embrace cases which are clearly within thespirit or reason of the law, or within the evil which it wasdesigned to remedy, provided such an interpretation isnot inconsistent with the language used. It resolves allreasonable doubts in favor of the applicability of thestatute to the particular case.” (quoting William M. Lile, etal., Brief Making & the Use of Law Books 343 (3d ed.1914))).101. “Even the most liberal of constructions does notmean that statutory words and phrases are to be givenunusual or tortured meanings unjustified by legislativeintent or that express limitations on such an exemptionare to be ignored.” Better Bus. Bureau v. United States,326 U.S. 279, 283 (1945); cf. Quesenberry v. Nichols, 208

Va. 667, 672, 159 S.E.2d 636, 640 (1968) (“Contracts ofinsurance are to be liberally construed in favor of theinsured, but if they are plain and clear and not in violationof law or inconsistent with public policy, we are bound toadhere to their terms. It is the function of the court toconstrue the language of the contract as written, and thecourt cannot make a new contract for the parties differentfrom that plainly intended and thus create a liability notassumed by the insurer.” (quoting Pilot Life v. Crosswhite,206 Va. 558, 561, 145 S.E.2d 143, 146 (1965))).102. “[T]he Workers’ Compensation Act is to be construedliberally in favor of the employee.” Hospice Choice, Inc. v.O’Quin, 42 Va. App. 598, 603, 593 S.E.2d 554, 556 (2004);see also Gallahan v. Free Lance Star Publ. Co., 41 Va. App.694, 698, 589 S.E.2d 12, 14-15 (2003) (stating that the Actshould be liberally construed); Board of Supervisors v.Martin, 3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986) (“Itis true that the Workers’ Compensation Law should beconstrued liberally in favor of the worker, but it is the lawthat should be construed liberally, not the facts.” (citationomitted)); Lane Co. v. Saunders, 229 Va. 196, 199, 326S.E.2d 702, 703 (1985) (“[T]he Workmen’s CompensationAct was adopted for the benefit of the employees andtheir dependents and ... should be liberally construed inorder to accomplish this humane purpose. But liberalconstruction does not mean that the Act should beconverted into a form of health insurance.” (quoting Va.Electric & Power Co. v. Cogbill, 223 Va. 354, 357, 288 S.E.2d485, 487 (1982))); Low Splint Coal Co. v. Bolling, 224 Va.400, 404, 297 S.E.2d 665, 667 (1982) (“Liberalconstruction, however, may not be used to amend astatute by changing the meaning of the statutorylanguage.”); Baggett Transp. Co. v. Dillon, 219 Va. 633,637, 248 S.E.2d 819, 822 (1978) (“The duty to liberallyconstrue the Act does not, however, authorize theamendment, alteration or extension of its provisions.”).103. “The rights and remedies herein granted to anemployee when his employer and he have accepted theprovisions of this title respectively to pay and acceptcompensation on account of injury or death by accidentshall exclude all other rights and remedies of suchemployee, his personal representative, parents,dependents or next of kin, at common law or otherwise,on account of such injury, loss of service or death.” Va.Code § 65.2-307(A) (“Employee’s rights under Act excludeall others”); see also Pascal, supra note 5, at 2-28, 2-29(“The Virginia Workers’ Compensation Act provides theexclusive remedy to an employee for recovery against hisemployer for an injury arising out of and in the course ofemployment. There is no choice of remedies and anemployee cannot elect to sue his employer, even if theemployer were negligent, rather than claim workers’compensation benefits.”). The exclusivity principle is vitalto the statutory quid pro quo. “It is difficult to imagine anyserious action in which the plaintiff will be unable to reachthe jury against the employer if the exclusive remedy is notallowed to stand, as errors in plant design, supervision,warnings, or whatever will always be lurking in thebackground, even if not fully provable.” Epstein, supranote 3, at 813. Accepting the erosion of this principle,Epstein warned, would pose a great “threat to the viabilityof workers’ compensation.” Id. at 809.104. In a related context, the Virginia Court of Appeals hasheld that the Birth-Related Neurological Injury Act “cannotbe applied with any interpretive preset in favor of coverage... and [its] interpretation of the statute cannot depend onwho is on which side of the issue.” Meador, 44 Va. App. at152-53, 604 S.E.2d at 90.105. Bohlen, supra note 15, at 332.106. Id. at 329 (emphasis added).107. Antonin Scalia, The Rule of Law as a Law of Rules, 56U. Chi. L. Rev. 1175, 1179 (1989).108. Id.109. Commissioner Lawrence Tarr and his assistant, SamLupica, provided this information from the commission’srecords.110. Id.111. See Ishita Sengupta, Virginia Reno & John F. BurtonJr., Nat’l Acad. of Soc. Ins., Workers’ Compensation:Benefits, Coverage & Costs, 2003 at 2 (July 2005), availableat www.nasi.org/usr_doc/NASI_Workers_Comp_Report.pdf; John F. Burton Jr., Workers’ Compensation Costs forEmployers 1986 to 2004, 5 Workers’ Compensation PolicyRev. No. 2 (Mar.–Apr. 2005); see also Economic NewsRelease, U.S. Bureau of Labor Statistics, Employer Costsfor Workers’ Compensation – March 2005, U.S. Bureau ofLabor Statistics, USDL 05-1056 (June 16, 2005), availableat stats.bls.gov/news.release/pdf/ecec.pdf.112. Feitig v. Chalkley, 185 Va. 96, 98, 38 S.E.2d 73, 73(1946).113. Id.114. Deans, supra, note 12.


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Blythe Scott has joined the law firm of Rutter Mills as an attorney specializing in bothState and Longshore Workers’ Compensation claims as well as Social Security disabilityclaims. Mrs. Scott holds a Bachelor of Arts degree from Princeton and a Juris Doctor from theUniversity of Virginia School of Law. Mrs. Scott has been licensed to practice law in theCommonwealth of Virginia. Prior to working at Rutter Mills, Mrs. Scott worked in the areasof civil litigation, traffic defense, bankruptcy and residual real estate. Mrs. Scott is amember of the Virginia Bar, the Norfolk-Portsmouth Bar Association and serves on theBoard of Zoning Appeals for the City of Norfolk.

Bradford Miller has joined the law firm of Rutter Mills as an attorney specializing inpersonal injury cases. His practice focuses mainly on automobile accidents, tractor trailercollisions and premises liability cases. He has practiced since 2001 in various areas of thelaw including criminal defense, traffic matters and juvenile and domestic relations. He hascommitted himself exclusively to representing those who have been injured due to thenegligence of others. Mr. Miller earned a Bachelor of Arts degree from the University of

Georgia and a Juris Doctor from RegentUniversity. He is a member of the VirginiaState Bar, the American Bar Association,Chesapeake Bar Association and the VirginiaTrial Lawyers Association. He has enjoyedestablishing public ties since his move tothis area in 1997 and looks forward tocontributing to the Hampton RoadsCommunity.

The law firm of Rutter Mills has morethan 45 years experience as a personal injuryfirm. The firm provides representation forpeople in a number of different areas ofpersonal injury, including: workers’compensation, railroad injuries, maritime,products liability, social security andmedical malpractice. The firm has offices inNorfolk and Newport News, consisting of 10attorneys and 25 support staff. For moreinformation on Rutter Mills, L.L.P. pleasecontact the Norfolk office at 757-622-5000,the Newport News office at 757-245-5000or visit www.ruttermills.com.

Robert N. Baldwin, former executivesecretary of the Supreme Court of Virginia,recently received the 2005 PublicAdministrator Award from the John O.Marsh Jr. Institute for Government andPublic Safety at Shenandoah Universityin Winchester. Other recipients of theMarsh Institute’s 2005 Public ServiceAwards included former Congressman JackKemp, former Virginia Attorney GeneralMary Sue Terry and Luray Mayor RalphDean. The institute and awards are namedfor former Congressman and Secretary ofthe Army John O. Marsh Jr., a formermember of the VBA Committee on SpecialIssues of National and State Importance.

VBA Life Member James W. Morris IIIof Richmond, chairman of the law firm ofMorris & Morris, P.C., has received theHunter W. Martin Professionalism Awardfor 2005-06 from the Bar Association ofthe City of Richmond.

R. Lee Stephens Jr. of Irvington, amember of the VBA Corporate CounselSection Council and senior vice presidentof Spotts Fain Consulting, has beenappointed by Governor Mark Warner tothe board of trustees for the Foundationfor Virginia’s Natural Resources.

Several VBA members have recentlybeen named to “Top Forty Under 40” listsof rising civic leaders compiled by Style

Weekly (Richmond) and Inside Business(Hampton Roads). The Style Weekly listincludes Patricia Collins McCullagh,McCandlish Holton; David I. Meyers,Hunton & Williams; Jennifer McClellan,Verizon; and John L. Marshall Jr.,McSweeney & Crump, all of Richmond.VBA members on the Inside Business listinclude Nicole Duke, Kaufman & Canoles;Brian Sykes, Vandeventer Black; andShawn A. Voyles, Crenshaw, Ware &Martin, all of Norfolk.

Celia K. Luxmoore of Richmond hasjoined the staff of The John MarshallFoundation as director of development.

The VBA News Journal offers classifiedadvertising. Categories available are asfollows: positions available, positionswanted, books and software, officeequipment/furnishings, office space,experts, consulting services, businessservices, vacation rentals, andeducational opportunities. Rates are $1per word for VBA members and $1.50 perword for non-members, with a $35minimum, payable at the time ofsubmission. Ad costs must be paid inadvance. The VBA News Journal reservesthe right to review all copy beforepublication and to reject material deemedunsuitable.

Professional announcements may beprinted; the cost per announcement is$15 and text may be edited for style andspace limitations. Deadlines are onemonth in advance of the date ofpublication. Information is available onlineat www.vba.org, or call for details at (804)644-0041.

CLASSIFIEDADVERTISEMENTS

POSITIONS AVAILABLEIn-House Counsel needed at BlackwaterUSA in Moyock, N.C. Will provide counselin all areas of the business, but particularexperience in the area of governmentcontracting is very desirable, as is priormilitary experience. For immediateconsideration, please send resume [email protected].

OFFICE SPACEOffice space — Judicial Drive, Fairfax,Va. Fairfax City, Courthouse Square, nearcourthouse. Seven attorney office, 3,775square feet, with conference room, kitchen,reception area. Two offices available.Contact Joanne, (703) 352-5770.

VBA section offers updated guide to administration of decedents’ estatesA Guide to the Administration of Decedents’ Estates in Virginia, a cooperative project of the VBA Wills, Trusts and EstatesSection and the VBA Wills, Trusts and Estates Legislative Committee, has been revised and is now available online atwww.vba.org, as both a web page and a 36-page document which may be downloaded and printed by Internet users. Byputting the publication online, the VBA hopes to make it available to all persons administering decedents’ estates inVirginia. Nan L. Coleman of Roanoke chaired the subcommittee charged with revising the publication, which includedRobert H. Powell III of Norfolk and Fielding L. Williams Jr. of Richmond. The first and second printings of the publication,in 1996 and 1998, were financially assisted by the Virginia Law Foundation. The Guide includes an introduction, aglossary of legal terms, chapters which cover various topics in a question-and-answer format, and a checklist for estateadministrators to follow during the administrative process. The Guide is available at www.vba.org/admdecest.htm; thePDF version can be downloaded from the webpage. For more information, please contact the VBA office at (804) 644-0041.

December 15, 2005VBA Environment, Natural Resources and EnergyLaw Section Legislative PreviewHunton & Williams LLP, Richmond

January 19-22, 2006116th VBA Annual MeetingKingsmill, Williamsburg

April 3-4, 2006Virginia Elder Rights and Guardianship ConferenceWoodlands Hotel and Suites, Williamsburg

July 20-23, 2006116th VBA Summer MeetingThe Homestead

VBA• •

The Virginia Bar Association701 East Franklin Street, Suite 1120Richmond, Virginia 23219(804) 644-0041

CALENDAR OF EVENTS

For more details, please visit our website at www.vba.org or callthe VBA office at (804) 644-0041. A complete calendar of events

with links to additional information is posted on the website.

Book your accommodations early — call 1-800-832-5665!Program details and meeting registration information will be mailed to all VBA members.

Watch the VBA website at www.vba.org for the most up-to-date information.

VBA• • 116th Annual Meeting116th Annual Meeting116th Annual Meeting116th Annual Meeting116th Annual Meetingof The Vof The Vof The Vof The Vof The Virginia Bar Associationirginia Bar Associationirginia Bar Associationirginia Bar Associationirginia Bar Association

KINGSMILL, WILLIAMSBURGJANUARY 19-22, 2006

same great event!New year, new location...

Guardian ad litem trainingavailable to bar groups

If you need a program idea for your next local bar meeting,we invite you to take advantage of an opportunity to providevaluable training to legal professionals in your community onthe Standards Governing the Performance of Guardians AdLitem for Children. We furnish the content for the seminar,which has been approved for two hours of CLE credit fromthe Virginia State Bar and two hours of GAL credit through theSupreme Court, including instructions, handout materialsand a videotape.

Through the VBA Commission on the Needs of Children,the GAL Standards Training Project was awarded grant fundsby the Virginia Law Foundation. While funds remain, we canreimburse your expense for reproducing the handoutsdistributed to your participants. Because of end-of-yearreporting deadlines, reimbursement requests must bereceived by December 15. Please call Jeremiah Dillon at theVBA office to obtain the materials or if you have any questions.

Documents

Journal News · To start our conversation, please complete this form and fax it to us at (804) 762-4192 or 1-800-947-2796. Without obligation, I would like to receive more information