BMHJ Blog: Legal Information, Resources, & News

Survival of a Tort Claim which Seemingly Arises out of Breach of Contract

Heather K. Bardot, Esquire
March 11th, 2011
By: Heather K. Bardot, Esquire

On March 4, 2011, the Supreme Court of Virginia issued an opinion in Kaltman v. All American Pest Control, Inc., Record No. 092541, reversing the trial court’s sustaining of a demurrer. The demurrer had challenged the plaintiffs’ ability to file suit in tort against the defendant-pest control company and its employee on the basis that, since the defendants’ allegedly negligent conduct arose out of a contract to apply pesticide, the only available cause of action was breach of contract.

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Innocent Victim of Horseplay Rule Affirmed by Virginia Supreme Court

Dawn E. Boyce, Esquire
February 14th, 2011
By: Dawn E. Boyce, Esquire

In Simms v. Ruby Tuesday, Inc., 2011 Va. LEXIS 17 (2011), the Virginia Supreme Court addressed whether an innocent victim of horseplay was eligible for compensation under the Workers’ Compensation Act. Although it had long been held that injuries suffered by innocent bystanders as a result of horseplay at the workplace were compensable, this precedent was called into doubt by the court in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008). The issue in Simms was whether the actual risk test analysis articulated in Hilton had materially changed the juris prudence related to innocent victims of horseplay at work. In Hilton, the Commission found that injuries did not arise out of the employment where a co-worker turned on the power of a manual cardiac defibrillator, adjusted its energy to 150 joules, and touched the defibrillator paddles to an innocent victim. The denial of compensation sent a ripple through the workers’ compensation community and led the Commission and Court of Appeals to start denying horseplay claims.

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New Imaging Studies for Brain Injuries: Are They Peer Reviewed or Scientifically Reliable?

January 3rd, 2011
By: Bancroft McGavin Horvath & Judkins

The Virginia Lawyers Weekly had a blog and article posted recently regarding plaintiff’s bar advocating new imaging tests to prove brain injuries. The article quoted John D. McGavin, Esquire on behalf of the defense who advised that these tests should still be challenged and questioned.  He was quoted as follows:

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Medicare Lien: Section 111 – Another Delay in Implementation?

December 21st, 2010
By: Bancroft McGavin Horvath & Judkins

Another delay? Yes. There is now a third delay of Section 111 implementation. Why? Probably because Medicare agents have been flooded with information which is required by Section 111. This has resulted in significant delays. Thus, there has been yet another postponement. The Department of Health and Human Services (HHS), Center for Medicare and Medicaid Services (CMS), and Medicare Secondary Payer Recovery Contractor (MSPRC) has set forth a one year delay in implementation on Section 111 reporting requirements for claims involving liability insurance, retroactive to October 1, 2010 through October 1, 2011.

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Failure to Properly Serve Incarcerated Convict Within One Year of When the Suit Was Filed Results in Dismissal of Lawsuit With Prejudice

Steven W. Bancroft, Esquire
August 23rd, 2010
By: Steven W. Bancroft, Esquire and Wesley D. Allen, Esquire

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.

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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