BMHJ Blog: Legal Information, Resources, & News

Funkhouser v. Ford Motor Company: Reversal by the Va. Supreme Court – the substantial similarity test is alive and well.

Julia B. Judkins, Esquire
Jennifer E. White, Esquire
January 29th, 2013
By: Julia B. Judkins, Esquire and Jennifer E. White, Esquire

On January 10, 2013, the Supreme Court of Virginia issued its opinion in the case of Funkhouser v. Ford Motor Company. The court withdrew its June 7, 2012 opinion, decided 4-3, following rehearing of the matter on the defendants’ petition.

The recent decision, authored by Justice Powell, represents the view of the formerly dissenting justices, who were joined by Justice Millette to create a new majority which upheld the circuit court’s decision excluding the plaintiff’s expert testimony regarding other Ford Windstar fires. In its 4-3 decision, the majority holds that none of the fires identified by the plaintiff’s expert were admissible to prove the manufacturer knew or had reason to know of a dangerous condition because none met the elements of the substantial similarity test. The Court clarifies that the substantial similarity test requires proof (1) that the incidents occurred under substantially the same circumstances as the incident at issue in the lawsuit and (2) that the incidents were caused by the same or similar defects. (Pages 10 and 11.) The Court reasons that ignoring the importance of a same or similar defect, as advocated by the plaintiff, “would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger; there would be no requirement for the danger to be attributable to the manufacturer in any way.” (Page 11.)

Read more

Fake Tax Returns Unraveled Plaintiff’s Claim

Stephen A. Horvath, Esquire
December 14th, 2012
By: Stephen A. Horvath, Esquire

In a clear liability case, with serious injuries, a plaintiff submitted fake tax returns and financial documents to support a claim for lost wages. This behavior was uncovered and resulted in the unraveling of the claim and a resolution of the claim for an amount far less than the medical specials.

The plaintiff was claiming injuries as a result of being rear ended while waiting at the end of an access ramp. The defendant hit the plaintiff’s car with sufficient force to total defendant’s car and push the plaintiff’s car into a third car. Within hours, the plaintiff developed radicular symptoms, and was ultimately diagnosed with two levels of cervical disc herniation plus a possible third level of a disc involvement in the cervical spine.

Read more

Virginia Supreme Court Reaffirms Underinsured Motorist Insurance Carriers’ Right to Mount an Independent Defense

Alexandar J. Conn, Esquire
November 14th, 2012
By: Alexandar J. Conn, Esquire

In the recent decision of Transportation Insurance Company v. Womack, Supreme Ct. Record No. 112283 (Nov. 1, 2012), the Supreme Court of Virginia reversed a trial court’s grant of Summary Judgment against an underinsured motorist (UIM) insurance carrier participating in litigation under Virginia Code § 38.2-2206(F).

Read more

Plaintiff’s Counsel Allowed to Contact Insurance Company Directly During Lawsuit

Dawn E. Boyce, Esquire
October 20th, 2012
By: Dawn E. Boyce, Esquire

In a legal ethics opinion, the Virginia State Bar has opined that in a pending personal injury case where the defendant is represented by counsel provided by the insurance company, the plaintiff’s attorney may contact the insurance carrier directly without the consent of the defendant’s attorney. See LEO 1863.

Read more

Virginia Supreme Court Vacates Controversial Products Liability Case

Jennifer E. White, Esquire
October 2nd, 2012
By: Jennifer E. White, Esquire

Virginia Supreme Court Vacates Controversial Products Liability Opinion

On Monday, September 17, 2012, the Virginia Supreme Court granted the appellee’s petition for rehearing in Funkhouser v. Ford Motor Company, vacating its June 2012 opinion. The Court’s original 4-3 decision proved controversial for the products liability bar and raised concerns that the decision’s interpretation of the admissibility of evidence of “similar events” could be used by the plaintiff’s bar in general negligence, premises liability, medical malpractice, and elder care cases.

Read more


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