Bills of interest that will become law effective July 1, 2019, include the following:
BMHJ Blog: Legal Information, Resources, & News: Traffic / DUI / Misdemeanors
Trial Court Finds Uim Carrier’s Subrogation Rights Are Not Extinguished Under Section L Of Va. Code 38.2-2206 Unless Defendant Tort Feasor Signs The Release
In a personal injury case pending in the Circuit Court of Fairfax County, the defendant’s insurer tendered its policy to the plaintiff, pursuant to Section K, with the expectation that its duty to defend would end, and the UIM carrier would absorb the defense. In that case, the release was not signed by the defendant and the UIM carrier objected to the insurer’s attempt to withdraw from the defense of the case asserting that there was non-compliance with Va. Code Section 38.2-2206(L). Pursuant to Section L, in order for the liability insurer to settle with the plaintiff and have the UIM carrier’s subrogation rights extinguished, the settlement must be in writing and signed by both the plaintiff and underinsured motorist (i.e. the defendant). Section L requires specific “Notice to Release Party” which states that the underinsured motorist must initial it. Even though the notice was mailed, as represented later in court in accordance with the statute, the trial court held that the release needed to be signed by the defendant in order to extinguish the UIM carrier’s subrogation rights. The court also commented that the statute was less than clear. As a result, the defendant’s attorney, who was retained by the underlying insurer, was not allowed to withdraw from the case. This was also AFTER the policy limits had been paid to the plaintiff. The take away under the present statute is for the underlying carrier to make all efforts to obtain the defendant’s signature on the release in compliance with the statute. If the defendant cannot be located, then prior to tendering the policy limits agreement should be obtained from the UIM carrier to the motion to withdraw from the defense.
Tort Reform in Virginia
Two bills involving tort reform have recently passed the Virginia General Assembly, and are expected to be become law. One addresses the use of discovery depositions in support of a motion for summary judgment, and the other addresses the award of expert witness fees when a nonsuit is taken shortly before trial.
House Bill 1708 amends Va. Code § 8.01-420 to allow limited use of discovery depositions under some circumstances in support of a motion for summary judgment. The amendment clarifies the statute to allow summary judgment to be based on requests for admission that are in turn based on deposition testimony, so long as the deposition testimony is not referenced in the request for admission, and the party is not required to admit having testified to specific facts.
Failure to Properly Serve Incarcerated Convict Within One Year of When the Suit Was Filed Results in Dismissal of Lawsuit With Prejudice
In a recent wrongful death case, the defendant was an incarcerated convict, the Arlington County Circuit Court dismissed, with prejudice, a $2 million compensatory claim, with an additional punitive damages claim, finding the plaintiff failed to properly serve the incarcerated defendant within one year of when the suit was filed.
This case arose out of an automobile/motorcycle accident with alcohol involved that resulted in the death of the decedent. As a result, the defendant was convicted of a felony and sentenced to a 20-year term, 5 years suspended. The Administrator of the Estate of the decedent filed an initial wrongful death suit against the defendant which it later non-suited. In the initial suit, the defendant was represented by Steven W. Bancroft, who had entered an appearance on his behalf.
Disclaimer
This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More