BMHJ Blog: Legal Information, Resources, & News

Virginia Supreme Court Upholds Trial Court’s Decision to Grant Missing Witness Instruction where Plaintiff Elected Not to Attend Trial

Anna G. Zick, Esquire
February 4th, 2019
By: Anna G. Zick, Esquire

The Virginia Supreme Court recently denied a Petition for Appeal and a Petition for Rehearing in the case of Raighne C. Delaney v. Madison Pommer, Record No. 180903, Circuit Court No. CL-2016-16148. The issue on appeal was whether the “missing witness instruction” was properly granted when plaintiff did not appear for his own trial. Plaintiff is a prominent local attorney who never appeared at the trial or testified over the 4 days of the trial. The plaintiff claimed he suffered a traumatic brain injury following a minor rear end automobile accident. Plaintiff presented evidence of $189,000.00 in past medical specials and $1,150,000.00 in lost wages. The evidence demonstrated the roads were wet and the defendant was unable to stop her vehicle before colliding with the vehicle immediately in front of her. The vehicle immediately in front of the defendant was pushed into the plaintiff’s vehicle. The jury returned a defense verdict.

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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

Melissa H. Katz, Esquire
February 1st, 2019
By: Melissa H. Katz, Esquire

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.

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Our Newest Associate – Charles J. Nucciarone

January 16th, 2019
By: admin

pictureCharles J. Nucciarone recently joined our firm as an associate. After obtaining his B.A. in Economics from George Mason University, Mr. Nucciarone attended Villanova University Charles Widger School of Law, graduating in 2016. Prior to joining our firm, he worked as a criminal defense attorney for several years. He is a member of the Virginia State Bar and Bar Associations and Virginia Association of Defense Attorneys. He will be handling the defense of personal injury actions.

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Dismissal For Failure To Serve Within One Year May Still Be A Viable Defense Even After a Court Extends Service Time by Court Order

Andrew R. Alder, Esquire
January 2nd, 2019
By: Andrew R. Alder, Esquire

Virginia Code § 8.01-275.1 and Rule 3:5(e) require that service of process be made within twelve months of the commencement of a lawsuit. Service on a defendant more than twelve months after commencement is timely only if there is a “finding by the court that the plaintiff exercised due diligence to have timely service made on the defendant.” Va. Code § 8.01-275.1. Va. Code § 8.01-277(A) allows a defendant to challenge the timeliness of service.

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Congratulations To 2018-2019 Leaders In Virginia Association of Defense Attorneys

October 29th, 2018
By: admin
  • Melissa H. Katz, President-Elect
  • Matthew A. Roberson, Vice-Chair of Auto & Transportation Liabiity
  • Alexandra “Ally” J. Sipes, Chair of Young Lawyers

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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