Virginia Code Section 46.2-206.1 was recently enacted by the Virginia

legislature and comes into effect on July 1, 2007. Virginia Code section 46.2-206.1 imposes additional civil remedial fees on certain drivers in the Commonwealth of Virginia. These additional fees will be dedicated to the highway maintenance and operating fund.

The new statute states as follows: The purpose of the civil remedial fees imposed in this section is to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth. The Commissioner shall impose and collect these civil remedial fees pursuant to this section, which shall be in addition to any other fees, costs, or penalties imposed pursuant to the Code of Virginia. The statute applies to both instate and out-of-state drivers in the Commonwealth of Virginia. For example, if you are convicted of misdemeanor reckless driving in the Commonwealth of Virginia, you could be fined up to $2,500 by the court, face jail, and loss of your license. Further, under this new statute, you will be fined an additional $350 by the court, with two (2) additional payments of $350 due to the Department of Motor Vehicles, one within 14 months of conviction and the other within 26 months of conviction. The additional civil remedial fees apply to many other traffic charges, and “other

misdemeanor conviction[s] for a driving and/or motor vehicle related violation of Virginia Code Section 18.2.” Additional civil penalties have been

enacted for truckers or those with a CDL who are convicted of certain violations. However,

the good news is that no convictions prior to July 1, 2008 shall be considered.

More importantly, the new statute states that “any person whose driver’s record with the Department [of Motor Vehicles] shows a balance of four or more driver demerit points on July 15 shall be assessed a fee of $100 plus $75 for each demerit point in excess of four,

but not greater than $700.” The fees will be assessed starting on July 15, 2008. If

you fail to pay the civil remedial fees or the additional assessment, your driving privileges

will be suspended. Therefore, watch your speed, buckle up,

and if necessary, take a driving course with the Department of Motor Vehicles to obtain a credit of five (5) points on your driving record. If you should have any questions, please contact Michael E. Thorsen at 703-385-1000.

Volume 4, Issue 1 June 2007

Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.3920 University Drive • Post Office Box 22

Fairfax, Virginia 22030-0022

PRESORTEDSTANDARD

U.S. POSTAGEPAID

FAIRFAX, VAPermit No. 6241

8

InsideFunnies ..................................................7

Landmark Products Liability Case ......... 4

Firm Lobbies for Procedural Changes ....5

Out-of-State Owners May Be Liable .......6

Second Non-Suits w/o Notice ............... 3

Will the Colossus Fall? .......................... 8

Worker’s Compensation .........................2

Standing L- R: Benjamin J. Trichilo, Melissa H. Katz, Michael E. Thorsen,Dawn E. BoyceSteven W. Bancroft

Seated L- R: Heather K. Bardot, John D. McGavin, Julia B. Judkins, Stephen A. Horvath

R eflections upon Independence Day

Although we celebrate the July 4th Holiday as the commoration of the signing of the Declaration of Independence, only two individuals actually signed on that

day: John Hancock and Charles Thomson. Most of the others signed the following month, on August 2. The last signature was added

nearly five years later! The American Revolution was not kind to

many of the 56 signers. Five were captured and treatly harshly

during imprisonment.

Twelve had their homes burned. Seventeen lost all that they owned. Others lost wives, children, or entire families. Their mutual pledge of “our lives, our fortunes and our sacred honor” was not hollow rhetoric, but words that will forever endure, as long as their are those who appreciate the magnitude of their sacrafice.

BEWARE OF VIRGINIA CODE SECTION 46.2-206.1By: Michael E. Thorsen, Esquire

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

2 7

Workers’ Compensation

Corner

By: Benjamin J. Trichilo, Esquire

Litigation ReportTM

Quarterly Publication

Published by:Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.

3920 University DriveFairfax, Virginia 22030-2514703.385.1000703.385.1555 fax

www.vadctriallaw.com

email:Letters to the Editor:Melissa H. Katz, Esquiremkatz@vadctriallaw.com

© 2007 All Rights Reserved

Legislative Update

From a Workers’ Compensation standpoint, the 2007 term of the General Assembly was largely uneventful. The Bills

that did pass, and will become law on July 1, 2007 (unless otherwise noted), are summarized below:

1. Va. Code §65.2-520 was amended to provide that payments made to an injured employee under the Longshore and Harbor Workers’ Compensation Act may be deducted in full from any compensation benefits due the employee for the same injury. This amendment allows a full dollar-for-dollar credit, and reverses the Court of Appeals decisions in Newport News Shipbuilding v. Holmes, 206 Va. App. LEXIS 128 (Record Number 2314-05-1; April 4, 2006); and Newport News Shipbuilding v. Holmes, 37 Va. App. 188, 555 S.E.2d 419 (2001). In those cases, the court ruled that payments made under the Longshore Act were not voluntary and therefore could not be taken as a dollar-for-dollar credit under Va. Code §65.2-520 (Senate Bill 1169). This statute becomes effective on March 13, 2007.

2. Va. Code §65.2-402.1 was amended to extend the presumption of compensability for certain infectious diseases (e.g. hepatitis, meningitis, tuberculous, or HIV) to conservation officers of the Department of Conservation and Recreation. Employees currently covered by the presumption include voluntary firefighters, paramedics, emergency medical technicians, and city, county, and town police officers. (Senate Bill 897).

3. Va. Code §65.2-101 was amended to allow police officers, firefighters, sheriffs, and deputies to be classified as employees

of the Commonwealth of Virginia while rendering aid outside of the Commonwealth pursuant to the Emergency Management Assistance Compact. (House Bill 2294).

Of interest are two Bills that did not pass. House Bill 2954 would have allowed health care providers in Workers’ Compensation cases to charge the same rates authorized in Circuit Court cases under Va. Code §8.01-413. In Johnson v. Barney Bay Dairy, Inc., VWC File Number 209-61-92 (October 7, 2005), the Commission authorized a charge of no more than .10¢ per page for the first fifty pages of records, and .05¢ per page thereafter. The case was reversed by the Court of Appeals on jurisdictional grounds, but the underlying holding was not. House Bill 2688 would have imposed full Workers’ Compensation liability upon any employer who knowingly and willfully employed an unauthorized alien. Under current law, unauthorized aliens are entitled to payment of medical expenses, and benefits for total and permanent partial disability. An alien capable of performing some type of employment is not entitled to temporary total or temporary partial disability benefits.

“Good Natured” Horseplay Is Not Compensable

The claimant in TBC Corporation v. Stephens, Record Number 2224-06-2; May 1, 2007 (sustained an ankle injury

when a co-worker approached him from behind, placed his hand on the claimant’s shoulder, and then made contact with the back of claimant’s left knee and leg, causing the claimant to fall backwards onto the floor. The Deputy Commissioner and full Commission found that the contact by the co-employee with the claimant’s knee was “accidental, not intentional” and that it arose out of the employment.

On appeal, the Court of Appeals reversed, finding that the co-employee’s “unilateral act of horseplay” was not a risk arising out of the employment. The court noted that the mere fact that an injury results from an assault, horseplay, or a friendly greeting does not establish compensability. The claimant must show that the injury resulted from a risk of the employment, and was not directed to the employee personally. In this case, the claimant never presented any evidence of an employment related risk; and evidence of an assault or horseplay, standing alone, are insufficient to establish compensability.

rationale to the interpretation of a construction contract at issue in W. R. Hall, Inc., supra. The construction company agreed to indemnify the Hampton Road Sanitation District (“HRSD”) from any and all damages resulting from the performance of the work, regardless of whether or not the injury was caused in part by any negligence or omission of the person or entity to be indemnified.

An employee the construction company was injured while crossing the railroad tracks. A train lurched forward and crushed the employee’s foot between two couplings. The employee filed a personal injury suit against the railroad company. Pursuant to an indemnification provision between the railroad

company and the Sanitation District, HRSD assumed the defense of the lawsuit. HRSD in turn made a demand for indemnity from W. R. Hall based upon the terms of the contract. Applying its reasoning in Estes, the court concluded that a contractual provision whereby a party receives indemnification for losses incurred as a result of personal injury, even if caused by its own future negligence is enforceable and does not violate the public policy of Virginia.

Based upon the Estes and W. R. Hall, Inc. cases, it is likely that there will be an increase in indemnification claims based on provisions that were previously thought to be against public policy in the Commonwealth of Virginia.

We at Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., are proud of our community awareness and involvment!

Cont’d from page 5

On Saturday, June 16, 2007, our firm participated in a 10K race – “Lawyers Have a Heart” which is a fund raiser for the American Heart Association. Our team– “Team Trichilo” came in FIRST PLACE for the category of small firms (less than 50 attorneys). The following participated from our firm: Melissa H. Katz, Heather K. Bardot, and Allyson Kitchel.

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

6 3

Is There Municipal Liability for Automobile Repossessions? by Julia Judkins, Esquire LEGISLATIVE SUMMARY 2007

by

While this is not a comprehensive list of the new laws that will take effect on July 1, 2007, we have set forth some new laws which you may find noteworthy, in addition to the laws referenced in our last newsletter.

Civil Remedies and ProcedureHB 1735 and SB 911 - Nonsuits; notice required. Provides that in addition to the first nonsuit that may be

taken as a matter of right, the court may allow additional nonsuits in a cause of action upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any unrepresented party. Currently, there is no requirement that such notice be provided if a court chooses to allow additional nonsuits. The bill also provides that, when suffering a nonsuit, the party shall inform the court if the cause of action has been previously nonsuited. A court order allowing an additional nonsuit shall indicate the name and dates of any previous nonsuits as well as the court in which any previous nonsuit was taken. Amends § 8.01-380. This was a recommendation of the Boyd-Graves Conference.

HB 2521 - Discontinuance for failure to serve process. Provides that a court may order than an action be discontinued if process has not been served within one year. The Clerk of the Court shall give notice to the plaintiff 30 days before ordering the discontinuance to provide him an opportunity to show that service was timely effected or that due diligence was exercised to have service timely effected. If such a showing is made, the case will remain on the court’s docket. Note: This bill does not apply to asbestos litigation. Amends §8.01-335.

SB 912 - Contradiction of witness: extrajudicial recordings. Excepts recordings made at the time of the wrongful act or negligence from those extrajudicial statements that cannot be used to contradict a witness. Amends § 8.01-404.

CourtsHB 2425 - Right to remove case to Circuit Court eliminated. Eliminates the right to remove an action from the

General District Court to the Circuit Court. When an action is appealed, an appeal bond is required to be posted within 30 days of judgment, except for an appeal of an unlawful detainer action. Amends and repeals various provisions of Titles 16.1, 55, and 8.01.

HB 3182 - Medical evidence; appeals to Circuit Court. Allows the procedure for introducing medical reports at the General District Court level to be used in matters that are appealed to the Circuit Court. Amends § 16.1-88.2.

Motor VehiclesHB 3202 - Imposition of certain additional fees on certain drivers. The purpose of these new fees imposed in

this section (46.2-206.1) is to generate revenue from Drivers whose proven dangerous behavior places significant financial burdens upon the Commonwealth. The civil remedial fees established by this section shall be in addition to any other fees, costs or penalties imposed pursuant to the Code of Virginia. (a) Driving while a driver’s license was suspended or revoked shall result in an assessed fee to be paid in three annual payments of $250.00 each; (b) reckless driving or aggressive driving shall be assessed a fee to be paid in three annual payments of $350.00 each; (c) driving while intoxicated (DUI) shall be assessed a fee to be paid in three annual payments of $750.00 each.

As we all know, police officers are often confronted with unusual and sometimes

confusing situations. For example, what is a police officer supposed to do when dispatched to a call involving the repossession of a motor vehicle? That call may come from the repossession company or a creditor in advance of the repossession, or it may come from the unhappy vehicle owner. The officer who responds may be confronted with a situation where the vehicle owner is objecting to the repossession and the parties are at a stand-off. Maybe the owner shows the officer “paperwork” that shows he or she is not in default; maybe the repossession company shows the officer “paperwork” that states the vehicle owner is in default and directs that the vehicle be seized. The police officer could find him or herself in a situation where no particular criminal statute applies and it is unclear who has the “right” to the vehicle.

Generally, automobile repossessions are a civil matter and, by statute, a police officer has no authority in civil matters except in certain situations that do not address automobile repossessions. VA CODE § 15.2-1704. There is, however, a civil statute, a provision of the Virginia Uniform Commercial Code, which specifically addresses a creditor’s rights to repossession of collateral (such as an automobile) in the event of default in payment. VA CODE § 8.9A-609.

The general rule is that, after a default in payment by the debtor, a secured creditor may repossess an automobile without judicial process (court order) if the repossession proceeds without a breach of the peace. If, however, the party from whom the automobile is being repossessed objects, and the repossession is in progress

or has not been completed, then the creditor or the company hired by the creditor must cease in the repossession and, through the court, obtain the necessary judicial process to seize the vehicle.

Situations may arise where it is unclear whether or not the repossession has been completed. A completed

repossession is generally apparent when the vehicle has been secured to a tow truck or other transportation and physically carried or moved away from the premises at which the repossession occurred. A repossession in progress is usually apparent when both parties are present at the scene, the vehicle has not been secured to or on

a tow truck, and the vehicle owner is objecting to the repossession.

When confronted with a repossession in progress, accompanied by a party objecting to the repossession, and no valid judicial process in the possession of the creditor or towing company, an officer should direct the creditor or towing company to cease

and desist the repossession at that time. It is important to note that “a breach

of the peace,” as contemplated under § 8.9A-609 of the Code of Virginia, does not necessarily involve physical violence, abusive language or conduct which could lead to arrest or issuance of a summons. The debtor’s verbal objection to the repossession and refusal to give up the car is enough to trigger the statutory requirement for the creditor to proceed through the court and obtain a court order. As a practical matter, when responding to a call involving an automobile repossession, it is important to determine whether the vehicle owner objects, whether the creditor or towing company has a valid court order and, if not, then the attempted repossession must be terminated.

Unfortunately, the failure of a police officer to clarify or determine whether the towing company has a valid court order may result in suit against that officer and a claim for violation of constitutional rights under 42 U.S.C. § 1983. Of course, the outcome of the case may hinge on what, if any, assistance was provided by that officer in enabling the creditor or towing company to complete the repossession i.e., did the officer assist the towing company in preventing the owner from re-claiming the vehicle? If so, to what extent were the officer’s actions critical in depriving the owner of the property? An officer has a duty to maintain order and prevent a breach of the peace; however, in doing so, depending upon how he responds to the situation, he may enable a creditor to obtain property without a valid court order.

July 1st, 2007

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

54

Tort-Feasor Can Contract Away Liability for Future Negligent Actsby

In two opinions authored by The Honorable Lawrence L. Koontz, Jr., the Virginia

Supreme Court has declared that it is not against Virginia public policy for a party to be indemnified for damages and costs incurred for personal injury caused by the party’s own negligence. The opinions are a departure from what was commonly thought to be the law in Virginia with regard to the enforceability of agreements, by which a party obtains a waiver of liability for acts of future negligence.

In 1890, the Virginia Supreme Court announced the rule that the courts of Virginia would not enforce release provisions that stipulated to an exemption from liability for future acts of negligence. See Johnson v. Richmond & Danville Railroad Company, 86 Va. 975, 11 S.E. 829 (1980). In Johnson, the plaintiff’s decedent, a quarryman, was killed when struck by a wheelbarrow, hit by an oncoming train. The personal representative sued the railroad company. Prior to the injury, a release had been signed which stated that the railroad company would “in no way be held responsible for any injuries to or death of any of the members of the [decedent’s] firm, or any of its agents and employees, sustained from said work, should such death or injury occur from any causes whatsoever.” A jury returned a verdict in favor of the railroad company, based upon this agreement. The Supreme Court reversed, holding that the release provision was void as against public policy, because it put the injured party at the mercy of the tort-feasor’s misconduct, and effectively precluded recovery by the injured party.

The principle was upheld in Hiett v. Lake Barcroft Community Association, 241 Va. 191, 418 S.E.2d 894 (1992). There, the plaintiff was injured while participating in a triathlon. Prior to the triathlon, the plaintiff signed a form agreeing to “waive, release and forever discharge any and all rights and claims for damages which I have or may hereafter accrue to me against the organizers and sponsors . . . for any and all injuries suffered by me in said event.” Again, the

Supreme Court held the contract was unenforceable and against public policy.

Distinguishing these cases, the court in Estes Express Lines, Inc. v. Chopper Express, Inc., 641 S.E.2d 476 (2007) and W. R. Hall, Inc. v. Hampton Road Sanitation District, 641 S.E.2d 472 (2007), held that contracts entitling a tort-feasor to recover from a third party, but which did not preclude a victim’s right of recovery, were not against public policy.

In Estes, a lease agreement was entered into between Estes and Chopper Express, a trucking company. Pursuant to the agreement, Chopper agreed to indemnify and hold harmless Estes from any liability associated with injuries to persons arising out of the use, operation, ownership, maintenance or control of the leased vehicle. A Chopper employee was injured while operating one of the vehicles and filed a personal injury suit against Estes. Estes settled the suit for $350,000.00, but did not admit negligence or liability. Estes then made a claim on Chopper for reimbursement of the settlement amount and its attorney’s fees. In considering the matter, the trial court ruled that the indemnification provisions were void as against public policy. The Supreme Court reversed, finding that there was a distinction between pre-injury release provisions and indemnity provisions which distribute losses between potentially liable parties. In the case of the former, the court reasoned that the provisions are against public policy, because they bar an injured party from recovering and thereby reduce the contracting party’s motivation to exercise ordinary care to prevent harm to that party. In contrast, indemnification provisions, which distribute liability between potential tort-feasors, merely predetermine how losses incurred will be paid. Said agreements do not preclude an injured party from recovering, nor do they materially impact a party’s exercise of due care, given that there would be no guarantee that the indemnitor would still be solvent at the time a claim for indemnification was made.

On the same date, the court applied the same

Cont’d on page 7

Removal Statuteby Allyson Kitchel, Esq.

Effective July 01, 2007, Virginia defendants will no longer be able to remove an action

from a general district court to a circuit court. The Virginia Assembly recently repealed Va.

Code Ann. § 16.1-92. It permitted a defendant to remove a suit from a general district court to a circuit court when sued in excess of $4,500, so long as the defendant had a substantial defense to the action. The maximum recovery for a plaintiff in a general district court remains $15,000.

The ability to remove a case to a circuit court was advantageous to defendants for several reasons. In circuit court, defendants have more tools at their disposal for defending a suit. Discovery can be conducted to determine the nature and extent of a plaintiff’s injuries. Witnesses, experts, and parties can be deposed. Independent medical exams can be requested. Interrogatories and requests for production of documents can be issued. While removal to a circuit court usually meant that the plaintiff would increase the amount sued for above $15,000, removal, on the whole, was advantageous to defendants because it allowed more tools for attacking the extent of a plaintiff’s damages.

The repeal of § 16.1-92 is advantageous to plaintiffs,

particularly in automobile accident cases. Cases tried in the circuit court can take a year or longer to get to trial because discovery must be conducted. Now that removal is not an option, plaintiffs will be able to quickly have “low dollar” cases tried because time will not need to be given to the defendants to conduct discovery. Also, medical evidence can be admitted in general district court through the submission of affidavits from a doctor. This limits defendants’ ability to explore the nature and extent of a plaintiff’s claimed injuries. Defendants will no longer be able to depose the plaintiff’s doctors, and will not be able to request independent medical exams.

The repeal of the removal provision will have the most impact in low impact vehicular accident cases. Many of these involve soft tissue injuries, which are difficult to disprove without independent medical exams and discovery to explore whether pre-existing conditions contribute to a claimed injury. Defendants will have to work harder and be creative when attempting to mitigate damages without the tools available to them in circuit courts.

Court Finds That Burrito Is Not A Sandwich.

The Washington Times reported that a Massachusetts Court has decided a case of

first impression, holding that a burrito is not a sandwich. Panera Bread operates a chain of restaurants in shopping malls selling bakery/cafe items. Under the terms of its lease, the shopping center owner was precluded from renting space to any restaurant or bakery that derived more than 10% of its revenue from the sale of sandwiches.

When the shopping center owner attempted to lease space to a Mexican restaurant, Panera protested. The owner disagreed with Panera’s position, asserting that burritos, tacos, nachos, and enchiladas are not sandwiches, and therefore exempt from the lease

restriction.A Judge in the Massachusetts Superior Court

agreed with the shopping center owner. Relying upon Webster’s Third New International Dictionary, the Judge held that a sandwich is “two thin pieces of bread, usually buttered, with a thin layer of meat, cheese, or savoury mixture spread between them.” T h i s definition, the court ruled, does not include burritos, tacos, nachos, and enchiladas. It is now judicially established, at least in Massachusetts: a sandwich is not a burrito.

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

54

Tort-Feasor Can Contract Away Liability for Future Negligent Actsby

In two opinions authored by The Honorable Lawrence L. Koontz, Jr., the Virginia

Supreme Court has declared that it is not against Virginia public policy for a party to be indemnified for damages and costs incurred for personal injury caused by the party’s own negligence. The opinions are a departure from what was commonly thought to be the law in Virginia with regard to the enforceability of agreements, by which a party obtains a waiver of liability for acts of future negligence.

In 1890, the Virginia Supreme Court announced the rule that the courts of Virginia would not enforce release provisions that stipulated to an exemption from liability for future acts of negligence. See Johnson v. Richmond & Danville Railroad Company, 86 Va. 975, 11 S.E. 829 (1980). In Johnson, the plaintiff’s decedent, a quarryman, was killed when struck by a wheelbarrow, hit by an oncoming train. The personal representative sued the railroad company. Prior to the injury, a release had been signed which stated that the railroad company would “in no way be held responsible for any injuries to or death of any of the members of the [decedent’s] firm, or any of its agents and employees, sustained from said work, should such death or injury occur from any causes whatsoever.” A jury returned a verdict in favor of the railroad company, based upon this agreement. The Supreme Court reversed, holding that the release provision was void as against public policy, because it put the injured party at the mercy of the tort-feasor’s misconduct, and effectively precluded recovery by the injured party.

The principle was upheld in Hiett v. Lake Barcroft Community Association, 241 Va. 191, 418 S.E.2d 894 (1992). There, the plaintiff was injured while participating in a triathlon. Prior to the triathlon, the plaintiff signed a form agreeing to “waive, release and forever discharge any and all rights and claims for damages which I have or may hereafter accrue to me against the organizers and sponsors . . . for any and all injuries suffered by me in said event.” Again, the

Supreme Court held the contract was unenforceable and against public policy.

Distinguishing these cases, the court in Estes Express Lines, Inc. v. Chopper Express, Inc., 641 S.E.2d 476 (2007) and W. R. Hall, Inc. v. Hampton Road Sanitation District, 641 S.E.2d 472 (2007), held that contracts entitling a tort-feasor to recover from a third party, but which did not preclude a victim’s right of recovery, were not against public policy.

In Estes, a lease agreement was entered into between Estes and Chopper Express, a trucking company. Pursuant to the agreement, Chopper agreed to indemnify and hold harmless Estes from any liability associated with injuries to persons arising out of the use, operation, ownership, maintenance or control of the leased vehicle. A Chopper employee was injured while operating one of the vehicles and filed a personal injury suit against Estes. Estes settled the suit for $350,000.00, but did not admit negligence or liability. Estes then made a claim on Chopper for reimbursement of the settlement amount and its attorney’s fees. In considering the matter, the trial court ruled that the indemnification provisions were void as against public policy. The Supreme Court reversed, finding that there was a distinction between pre-injury release provisions and indemnity provisions which distribute losses between potentially liable parties. In the case of the former, the court reasoned that the provisions are against public policy, because they bar an injured party from recovering and thereby reduce the contracting party’s motivation to exercise ordinary care to prevent harm to that party. In contrast, indemnification provisions, which distribute liability between potential tort-feasors, merely predetermine how losses incurred will be paid. Said agreements do not preclude an injured party from recovering, nor do they materially impact a party’s exercise of due care, given that there would be no guarantee that the indemnitor would still be solvent at the time a claim for indemnification was made.

On the same date, the court applied the same

Cont’d on page 7

Removal Statuteby Allyson Kitchel, Esq.

Effective July 01, 2007, Virginia defendants will no longer be able to remove an action

from a general district court to a circuit court. The Virginia Assembly recently repealed Va.

Code Ann. § 16.1-92. It permitted a defendant to remove a suit from a general district court to a circuit court when sued in excess of $4,500, so long as the defendant had a substantial defense to the action. The maximum recovery for a plaintiff in a general district court remains $15,000.

The ability to remove a case to a circuit court was advantageous to defendants for several reasons. In circuit court, defendants have more tools at their disposal for defending a suit. Discovery can be conducted to determine the nature and extent of a plaintiff’s injuries. Witnesses, experts, and parties can be deposed. Independent medical exams can be requested. Interrogatories and requests for production of documents can be issued. While removal to a circuit court usually meant that the plaintiff would increase the amount sued for above $15,000, removal, on the whole, was advantageous to defendants because it allowed more tools for attacking the extent of a plaintiff’s damages.

The repeal of § 16.1-92 is advantageous to plaintiffs,

particularly in automobile accident cases. Cases tried in the circuit court can take a year or longer to get to trial because discovery must be conducted. Now that removal is not an option, plaintiffs will be able to quickly have “low dollar” cases tried because time will not need to be given to the defendants to conduct discovery. Also, medical evidence can be admitted in general district court through the submission of affidavits from a doctor. This limits defendants’ ability to explore the nature and extent of a plaintiff’s claimed injuries. Defendants will no longer be able to depose the plaintiff’s doctors, and will not be able to request independent medical exams.

The repeal of the removal provision will have the most impact in low impact vehicular accident cases. Many of these involve soft tissue injuries, which are difficult to disprove without independent medical exams and discovery to explore whether pre-existing conditions contribute to a claimed injury. Defendants will have to work harder and be creative when attempting to mitigate damages without the tools available to them in circuit courts.

Court Finds That Burrito Is Not A Sandwich.

The Washington Times reported that a Massachusetts Court has decided a case of

first impression, holding that a burrito is not a sandwich. Panera Bread operates a chain of restaurants in shopping malls selling bakery/cafe items. Under the terms of its lease, the shopping center owner was precluded from renting space to any restaurant or bakery that derived more than 10% of its revenue from the sale of sandwiches.

When the shopping center owner attempted to lease space to a Mexican restaurant, Panera protested. The owner disagreed with Panera’s position, asserting that burritos, tacos, nachos, and enchiladas are not sandwiches, and therefore exempt from the lease

restriction.A Judge in the Massachusetts Superior Court

agreed with the shopping center owner. Relying upon Webster’s Third New International Dictionary, the Judge held that a sandwich is “two thin pieces of bread, usually buttered, with a thin layer of meat, cheese, or savoury mixture spread between them.” T h i s definition, the court ruled, does not include burritos, tacos, nachos, and enchiladas. It is now judicially established, at least in Massachusetts: a sandwich is not a burrito.

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

6 3

Is There Municipal Liability for Automobile Repossessions? by Julia Judkins, Esquire LEGISLATIVE SUMMARY 2007

by

While this is not a comprehensive list of the new laws that will take effect on July 1, 2007, we have set forth some new laws which you may find noteworthy, in addition to the laws referenced in our last newsletter.

Civil Remedies and ProcedureHB 1735 and SB 911 - Nonsuits; notice required. Provides that in addition to the first nonsuit that may be

taken as a matter of right, the court may allow additional nonsuits in a cause of action upon reasonable notice to counsel of record for all defendants and upon a reasonable attempt to notify any unrepresented party. Currently, there is no requirement that such notice be provided if a court chooses to allow additional nonsuits. The bill also provides that, when suffering a nonsuit, the party shall inform the court if the cause of action has been previously nonsuited. A court order allowing an additional nonsuit shall indicate the name and dates of any previous nonsuits as well as the court in which any previous nonsuit was taken. Amends § 8.01-380. This was a recommendation of the Boyd-Graves Conference.

HB 2521 - Discontinuance for failure to serve process. Provides that a court may order than an action be discontinued if process has not been served within one year. The Clerk of the Court shall give notice to the plaintiff 30 days before ordering the discontinuance to provide him an opportunity to show that service was timely effected or that due diligence was exercised to have service timely effected. If such a showing is made, the case will remain on the court’s docket. Note: This bill does not apply to asbestos litigation. Amends §8.01-335.

SB 912 - Contradiction of witness: extrajudicial recordings. Excepts recordings made at the time of the wrongful act or negligence from those extrajudicial statements that cannot be used to contradict a witness. Amends § 8.01-404.

CourtsHB 2425 - Right to remove case to Circuit Court eliminated. Eliminates the right to remove an action from the

General District Court to the Circuit Court. When an action is appealed, an appeal bond is required to be posted within 30 days of judgment, except for an appeal of an unlawful detainer action. Amends and repeals various provisions of Titles 16.1, 55, and 8.01.

HB 3182 - Medical evidence; appeals to Circuit Court. Allows the procedure for introducing medical reports at the General District Court level to be used in matters that are appealed to the Circuit Court. Amends § 16.1-88.2.

Motor VehiclesHB 3202 - Imposition of certain additional fees on certain drivers. The purpose of these new fees imposed in

this section (46.2-206.1) is to generate revenue from Drivers whose proven dangerous behavior places significant financial burdens upon the Commonwealth. The civil remedial fees established by this section shall be in addition to any other fees, costs or penalties imposed pursuant to the Code of Virginia. (a) Driving while a driver’s license was suspended or revoked shall result in an assessed fee to be paid in three annual payments of $250.00 each; (b) reckless driving or aggressive driving shall be assessed a fee to be paid in three annual payments of $350.00 each; (c) driving while intoxicated (DUI) shall be assessed a fee to be paid in three annual payments of $750.00 each.

As we all know, police officers are often confronted with unusual and sometimes

confusing situations. For example, what is a police officer supposed to do when dispatched to a call involving the repossession of a motor vehicle? That call may come from the repossession company or a creditor in advance of the repossession, or it may come from the unhappy vehicle owner. The officer who responds may be confronted with a situation where the vehicle owner is objecting to the repossession and the parties are at a stand-off. Maybe the owner shows the officer “paperwork” that shows he or she is not in default; maybe the repossession company shows the officer “paperwork” that states the vehicle owner is in default and directs that the vehicle be seized. The police officer could find him or herself in a situation where no particular criminal statute applies and it is unclear who has the “right” to the vehicle.

Generally, automobile repossessions are a civil matter and, by statute, a police officer has no authority in civil matters except in certain situations that do not address automobile repossessions. VA CODE § 15.2-1704. There is, however, a civil statute, a provision of the Virginia Uniform Commercial Code, which specifically addresses a creditor’s rights to repossession of collateral (such as an automobile) in the event of default in payment. VA CODE § 8.9A-609.

The general rule is that, after a default in payment by the debtor, a secured creditor may repossess an automobile without judicial process (court order) if the repossession proceeds without a breach of the peace. If, however, the party from whom the automobile is being repossessed objects, and the repossession is in progress

or has not been completed, then the creditor or the company hired by the creditor must cease in the repossession and, through the court, obtain the necessary judicial process to seize the vehicle.

Situations may arise where it is unclear whether or not the repossession has been completed. A completed

repossession is generally apparent when the vehicle has been secured to a tow truck or other transportation and physically carried or moved away from the premises at which the repossession occurred. A repossession in progress is usually apparent when both parties are present at the scene, the vehicle has not been secured to or on

a tow truck, and the vehicle owner is objecting to the repossession.

When confronted with a repossession in progress, accompanied by a party objecting to the repossession, and no valid judicial process in the possession of the creditor or towing company, an officer should direct the creditor or towing company to cease

and desist the repossession at that time. It is important to note that “a breach

of the peace,” as contemplated under § 8.9A-609 of the Code of Virginia, does not necessarily involve physical violence, abusive language or conduct which could lead to arrest or issuance of a summons. The debtor’s verbal objection to the repossession and refusal to give up the car is enough to trigger the statutory requirement for the creditor to proceed through the court and obtain a court order. As a practical matter, when responding to a call involving an automobile repossession, it is important to determine whether the vehicle owner objects, whether the creditor or towing company has a valid court order and, if not, then the attempted repossession must be terminated.

Unfortunately, the failure of a police officer to clarify or determine whether the towing company has a valid court order may result in suit against that officer and a claim for violation of constitutional rights under 42 U.S.C. § 1983. Of course, the outcome of the case may hinge on what, if any, assistance was provided by that officer in enabling the creditor or towing company to complete the repossession i.e., did the officer assist the towing company in preventing the owner from re-claiming the vehicle? If so, to what extent were the officer’s actions critical in depriving the owner of the property? An officer has a duty to maintain order and prevent a breach of the peace; however, in doing so, depending upon how he responds to the situation, he may enable a creditor to obtain property without a valid court order.

July 1st, 2007

TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C. (703) 385.1000 • Fax (703) 385.1555 • www.vadctriallaw.com

2 7

Workers’ Compensation

Corner

By: Benjamin J. Trichilo, Esquire

Litigation ReportTM

Quarterly Publication

Published by:Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.

3920 University DriveFairfax, Virginia 22030-2514703.385.1000703.385.1555 fax

www.vadctriallaw.com

email:Letters to the Editor:Melissa H. Katz, Esquiremkatz@vadctriallaw.com

© 2007 All Rights Reserved

Legislative Update

From a Workers’ Compensation standpoint, the 2007 term of the General Assembly was largely uneventful. The Bills

that did pass, and will become law on July 1, 2007 (unless otherwise noted), are summarized below:

1. Va. Code §65.2-520 was amended to provide that payments made to an injured employee under the Longshore and Harbor Workers’ Compensation Act may be deducted in full from any compensation benefits due the employee for the same injury. This amendment allows a full dollar-for-dollar credit, and reverses the Court of Appeals decisions in Newport News Shipbuilding v. Holmes, 206 Va. App. LEXIS 128 (Record Number 2314-05-1; April 4, 2006); and Newport News Shipbuilding v. Holmes, 37 Va. App. 188, 555 S.E.2d 419 (2001). In those cases, the court ruled that payments made under the Longshore Act were not voluntary and therefore could not be taken as a dollar-for-dollar credit under Va. Code §65.2-520 (Senate Bill 1169). This statute becomes effective on March 13, 2007.

2. Va. Code §65.2-402.1 was amended to extend the presumption of compensability for certain infectious diseases (e.g. hepatitis, meningitis, tuberculous, or HIV) to conservation officers of the Department of Conservation and Recreation. Employees currently covered by the presumption include voluntary firefighters, paramedics, emergency medical technicians, and city, county, and town police officers. (Senate Bill 897).

3. Va. Code §65.2-101 was amended to allow police officers, firefighters, sheriffs, and deputies to be classified as employees

of the Commonwealth of Virginia while rendering aid outside of the Commonwealth pursuant to the Emergency Management Assistance Compact. (House Bill 2294).

Of interest are two Bills that did not pass. House Bill 2954 would have allowed health care providers in Workers’ Compensation cases to charge the same rates authorized in Circuit Court cases under Va. Code §8.01-413. In Johnson v. Barney Bay Dairy, Inc., VWC File Number 209-61-92 (October 7, 2005), the Commission authorized a charge of no more than .10¢ per page for the first fifty pages of records, and .05¢ per page thereafter. The case was reversed by the Court of Appeals on jurisdictional grounds, but the underlying holding was not. House Bill 2688 would have imposed full Workers’ Compensation liability upon any employer who knowingly and willfully employed an unauthorized alien. Under current law, unauthorized aliens are entitled to payment of medical expenses, and benefits for total and permanent partial disability. An alien capable of performing some type of employment is not entitled to temporary total or temporary partial disability benefits.

“Good Natured” Horseplay Is Not Compensable

The claimant in TBC Corporation v. Stephens, Record Number 2224-06-2; May 1, 2007 (sustained an ankle injury

when a co-worker approached him from behind, placed his hand on the claimant’s shoulder, and then made contact with the back of claimant’s left knee and leg, causing the claimant to fall backwards onto the floor. The Deputy Commissioner and full Commission found that the contact by the co-employee with the claimant’s knee was “accidental, not intentional” and that it arose out of the employment.

On appeal, the Court of Appeals reversed, finding that the co-employee’s “unilateral act of horseplay” was not a risk arising out of the employment. The court noted that the mere fact that an injury results from an assault, horseplay, or a friendly greeting does not establish compensability. The claimant must show that the injury resulted from a risk of the employment, and was not directed to the employee personally. In this case, the claimant never presented any evidence of an employment related risk; and evidence of an assault or horseplay, standing alone, are insufficient to establish compensability.

rationale to the interpretation of a construction contract at issue in W. R. Hall, Inc., supra. The construction company agreed to indemnify the Hampton Road Sanitation District (“HRSD”) from any and all damages resulting from the performance of the work, regardless of whether or not the injury was caused in part by any negligence or omission of the person or entity to be indemnified.

An employee the construction company was injured while crossing the railroad tracks. A train lurched forward and crushed the employee’s foot between two couplings. The employee filed a personal injury suit against the railroad company. Pursuant to an indemnification provision between the railroad

company and the Sanitation District, HRSD assumed the defense of the lawsuit. HRSD in turn made a demand for indemnity from W. R. Hall based upon the terms of the contract. Applying its reasoning in Estes, the court concluded that a contractual provision whereby a party receives indemnification for losses incurred as a result of personal injury, even if caused by its own future negligence is enforceable and does not violate the public policy of Virginia.

Based upon the Estes and W. R. Hall, Inc. cases, it is likely that there will be an increase in indemnification claims based on provisions that were previously thought to be against public policy in the Commonwealth of Virginia.

We at Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., are proud of our community awareness and involvment!

Cont’d from page 5

On Saturday, June 16, 2007, our firm participated in a 10K race – “Lawyers Have a Heart” which is a fund raiser for the American Heart Association. Our team– “Team Trichilo” came in FIRST PLACE for the category of small firms (less than 50 attorneys). The following participated from our firm: Melissa H. Katz, Heather K. Bardot, and Allyson Kitchel.

Virginia Code Section 46.2-206.1 was recently enacted by the Virginia

legislature and comes into effect on July 1, 2007. Virginia Code section 46.2-206.1 imposes additional civil remedial fees on certain drivers in the Commonwealth of Virginia. These additional fees will be dedicated to the highway maintenance and operating fund.

The new statute states as follows: The purpose of the civil remedial fees imposed in this section is to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth. The Commissioner shall impose and collect these civil remedial fees pursuant to this section, which shall be in addition to any other fees, costs, or penalties imposed pursuant to the Code of Virginia. The statute applies to both instate and out-of-state drivers in the Commonwealth of Virginia. For example, if you are convicted of misdemeanor reckless driving in the Commonwealth of Virginia, you could be fined up to $2,500 by the court, face jail, and loss of your license. Further, under this new statute, you will be fined an additional $350 by the court, with two (2) additional payments of $350 due to the Department of Motor Vehicles, one within 14 months of conviction and the other within 26 months of conviction. The additional civil remedial fees apply to many other traffic charges, and “other

misdemeanor conviction[s] for a driving and/or motor vehicle related violation of Virginia Code Section 18.2.” Additional civil penalties have been

enacted for truckers or those with a CDL who are convicted of certain violations. However,

the good news is that no convictions prior to July 1, 2008 shall be considered.

More importantly, the new statute states that “any person whose driver’s record with the Department [of Motor Vehicles] shows a balance of four or more driver demerit points on July 15 shall be assessed a fee of $100 plus $75 for each demerit point in excess of four,

but not greater than $700.” The fees will be assessed starting on July 15, 2008. If

you fail to pay the civil remedial fees or the additional assessment, your driving privileges

will be suspended. Therefore, watch your speed, buckle up,

and if necessary, take a driving course with the Department of Motor Vehicles to obtain a credit of five (5) points on your driving record. If you should have any questions, please contact Michael E. Thorsen at 703-385-1000.

Volume 4, Issue 1 June 2007

Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.3920 University Drive • Post Office Box 22

Fairfax, Virginia 22030-0022

PRESORTEDSTANDARD

U.S. POSTAGEPAID

FAIRFAX, VAPermit No. 6241

8

InsideFunnies ..................................................7

Landmark Products Liability Case ......... 4

Firm Lobbies for Procedural Changes ....5

Out-of-State Owners May Be Liable .......6

Second Non-Suits w/o Notice ............... 3

Will the Colossus Fall? .......................... 8

Worker’s Compensation .........................2

Standing L- R: Benjamin J. Trichilo, Melissa H. Katz, Michael E. Thorsen,Dawn E. BoyceSteven W. Bancroft

Seated L- R: Heather K. Bardot, John D. McGavin, Julia B. Judkins, Stephen A. Horvath

R eflections upon Independence Day

Although we celebrate the July 4th Holiday as the commoration of the signing of the Declaration of Independence, only two individuals actually signed on that

day: John Hancock and Charles Thomson. Most of the others signed the following month, on August 2. The last signature was added

nearly five years later! The American Revolution was not kind to

many of the 56 signers. Five were captured and treatly harshly

during imprisonment.

Twelve had their homes burned. Seventeen lost all that they owned. Others lost wives, children, or entire families. Their mutual pledge of “our lives, our fortunes and our sacred honor” was not hollow rhetoric, but words that will forever endure, as long as their are those who appreciate the magnitude of their sacrafice.

BEWARE OF VIRGINIA CODE SECTION 46.2-206.1By: Michael E. Thorsen, Esquire