BMHJ Blog: Legal Information, Resources, & News

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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Construction Law and the Statute of Limitations

Steven W. Bancroft, Esquire
Nicholas J. Lawrence, Esquire
June 8th, 2010
By: Steven W. Bancroft, Esquire and Nicholas J. Lawrence, Esquire

Contract documents do not always create a written contract for purposes of the statute of limitations:

In a recent case for breach of contract and negligent destruction of property arising from a fire during a construction project, the Circuit Court for Fairfax County dismissed a $3 million claim because of the statute of limitations. Plaintiffs filed suit almost five years after the cause of action accrued, relying on about fifty pages of letters, written proposals, change orders, and invoices to establish the existence of a “written contract” and avoid the three year statute of limitations for an oral contract. Defendant argued that none of the proposals constituted a final agreement and, while not denying the existence of a contract, argued that the contract had been an oral agreement loosely based on the last written proposal.

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The 2010 Amendment to the Virginia UM/UIM Statute

May 18th, 2010
By: Bancroft McGavin Horvath & Judkins

The Virginia General Assembly added a new section to the Virginia UM/UIM statute, Va. Code Section 38.2-2206 during its most recent session which was designed to create a mechanism to allow liability carriers to shift the costs of the defense to the UIM carrier if certain criteria is met. First, the liability insurer must make an “irrevocable” offer in writing to pay its bodily injury or property damage limits; second, written notice must be given to the UIM carrier; third, to be effective, the UIM carrier who gets the notice must have been served in accordance with the statute; fourth, 60 days after the written notice is provided to the UIM carrier, the liability insurer is relieved of defense costs incurred thereafter, which includes expenses and “reasonable and necessary” attorney’s fees; fifth, the UIM carrier must reimburse the liability insurer for costs to defend to the date the UIM carrier offers its limits, or presumably settles. The amended statute requires that the liability carrier retains the duty to defend. It also states that in the event of either a jury verdict returned in an amount equal to or less than the total liability coverage available for payment or a dispositive ruling dismissing plaintiff’s complaint the new subsection of the statute does not apply. So, how will this new statute impact the insurance industry?

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Intentional Acts Do Not Trigger Duty to Provide Coverage Even when Bare Allegations of Negligence Are Pled

Stephen A. Horvath, Esquire
February 2nd, 2010
By: Stephen A. Horvath, Esquire

Intentional Acts Do Not Trigger Insurance Coverage Even when There Is a Bare Allegation of Negligence

Insurance companies are frequently confronted with the question as to whether or not they have a duty to defend a lawsuit when there are allegations of intentional acts by their insured and an insertion of a bare negligence claim. Recently, this firm was successful in obtaining a ruling from Judge Henry Hudson in the United States District Court for the Eastern District of Virginia in such a case. Judge Hudson held that by merely inserting the word ”negligently” prior to a description of intentional acts, insurance coverage is not triggered.

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Photographs Can Prove a Case

January 27th, 2010
By: Amy A. Lombardo, Esquire

In a Fairfax General District Court case where the plaintiff was alleging injury as a result of being sideswiped in a grocery store parking lot while in a loading zone, Judge Cassidy found, based upon photographs presented at trial, that the plaintiff did not meet her burden of proof. The defendant had taken pictures of the position of the vehicles before they were moved and additional photographs of the accident scene were taken by defense counsel.

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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

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