BMHJ Blog: Legal Information, Resources, & News

Importance of Filing a Motion to Dismiss Upon Plaintiff’s Failure to Serve Within 12 Months of Filing

Anna G. Zick, Esquire
February 4th, 2015
By: Anna G. Zick, Esquire

Pursuant to Rule 3:5, no judgment can be entered against a defendant who was served with process more than one year after the filing of the complaint, unless the court makes a finding that the plaintiff exercised due diligence to have timely service on the defendant. Absent a finding of due diligence, if service has not been effected within a year, the court “shall dismiss the action with prejudice.” Va. Code § 8.01-277.

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Supreme Court of Virginia clarifies the Rules of Evidence

Andrew R. Alder, Esquire
January 7th, 2015
By: Andrew R. Alder, Esquire

On November 12, 2014, the Supreme Court of Virginia clarified the rules of evidence regarding the admissibility of prior witness statements at trial. It did so by modifying Rule 2:801, the definition section of the rules governing hearsay. The modified rule now sets forth with greater clarity exceptions to the general rule that a witness’s prior statements are inadmissible hearsay.

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First Responder Liability and Sovereign Immunity: A Court Divided

Maureen E. Cummins, Esquire
November 22nd, 2014
By: Maureen E. Cummins, Esquire

The modern concept of sovereign immunity is derived from the old English maxim rex non potest peccare, i.e. “the king can do no wrong.” This powerful tool immunizes many governmental entities and government agents from tortious liability and serves a public policy purpose of “[protecting] the state from burdensome interference with the performance of governmental functions and preserves its control over state funds, property, and instrumentalities.” Messina v. Burden, 228 Va. 301, 307 (1984). Put plainly, sovereign immunity allows the government to continue performing its functions for the public good without the fear of constant, draining, and crippling litigation. While the concept appears straightforward, its application is not.

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Virginia Supreme Court Struggles with Contributory Negligence as a Matter of Law and Illustrates the Importance of Some Support for a Jury’s Decision

Martin Schubert, Esquire
November 18th, 2014
By: Martin Schubert, Esquire

As is customary, the jury rendered a verdict in this wrongful death action arising out of a railroad crossing collision. A dump truck was struck by a train. The jury found for the estate of the driver and the trial court entered an order in conformance with that verdict. It is the subsequent history that becomes interesting. On June 5, 2014, the Virginia Supreme Court reversed, finding contributory negligence on the part of the decedent, as a matter of law. RGR, LLC v. Settle, 288 Va. 1, 758 S.E.2d 215 (2014) (RGR I). That opinion was subsequently withdrawn and a new opinion reversing that first opinion was entered on Oct. 31, 2014. RGR, LLC v. Settle, 2014 Va. LEXIS 161 (2014) (RGR II). Both majority opinions were written by the same justice and both opinions had dissents.

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If you Think Law of the Case Applies in a Case Filed after a Non-Suited Case, Think Again

Heather K. Bardot, Esquire
September 30th, 2014
By: Heather K. Bardot, Esquire

Many cases in Virginia are non-suited and refiled before they are ever tried. When a litigant receives an unfavorable discovery ruling in the initial case, the litigant generally accepts the ruling as “law of the case,” and does not attempt to re-litigate the issue in the subsequently filed case. Based on a recent case out of the Supreme Court of Virginia, this is likely a mistake. In the case of Temple v. Mary Washington Hospital, Inc., et al.¸Record No. 131754 (Sept. 12, 2014), the Virginia Supreme Court was tasked with deciding whether discovery rulings made by the trial court in a case which was non-suited and subsequently refiled were reviewable on appeal of the refiled case where the trial court entered an order stating that all discovery in the prior action “is hereby incorporated into the instant action”?

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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