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What is Virginia’s Statute of Limitations?

Wednesday, May 15th, 2013

     Who is Limitations and why is there a statute named that ? ice cream

     Yes, that’s probably the kind of question that I would have asked when I was a kid. For the same reason that I thought that the song  we were singing in church was, “Bringing in the sheeps… we shall Columbus, Georgia”,  instead of “Bringing in the Sheaves… We shall come rejoicing”.  That’s what happens when you sing what you hear, when you can’t yet read. Like Statute of Limitations, not statue of limitations.

     Of course, I really am doing a round about discussion of the question, “How long do I have to bring a lawsuit”? Well, below is a quick chart on some civil actions, provided from Lawyers.com.  Separately, ”When does the statute start to run” is a question that is sometimes argued to a Judge. 

      Still, even with the following chart, it still can be a bit confusing. kinda like:confusion chart 

Assault and Battery, 2 years

Va. Code § 8.01-243(A)

Contract (in writing), 5 years

Va. Code § 8.01-246(2)

Contract (oral or not in writing), 3 years

Va. Code § 8.01-246(4)

False Imprisonment, 2 years

Va. Code § 8.01-243(A)

Fraud, 2 years

Va. Code § 8.01-243(A)

Enforcing Court Judgments, 20 years

Va. Code § 8.01-251        

Legal Malpractice, 3 or 5 years (Depending on the type of contract or agreement)

Va. Code § 8.01-246(2) or (4)

Libel, 1 year

Va. Code § 8.01.247.1

Medical Malpractice, 2 and up to 10 years (Depending on the type of malpractice and when it’s “discovered”)    

Va. Code § 8.01-243(A) and (C)

Personal Injury, 2 years

Va. Code § 8.01-243(A)

Product Liability, 2 years

Va. Code § 8.01-243(A) and (B)

Property Damage, 5 years

Va. Code § 8.01-243(B)

Slander, 1 year

Va. Code § 8.01.247.1

Trespass, 5 years

Va. Code § 8.01-243(B)

Wrongful Death, 2 years

     So for pic o’ day, just in case you aren’t interested in a chart, how about a little lawsuit adversity that compares to… hand meets fist? I know… it’s getting crazy!

hand meet fist

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Mom’s Lawyer Joke

Monday, April 29th, 2013

     Typically, lawyers don’t get real excited about lawyer jokes. It’s that whole “it’s a profession” thing. I have even been to seminars where the speakers chastise anyone for ‘participating in the telling of lawyer jokes”. lawyer cupcakes     With that thought, I don’t want to make my “brethern or sistern in law”, bothered at my participation in lawyer jokes. Still, the following was sent from my Mom. It really isn’t a “lawyer joke”, so maybe I am still safe.

     One final note on “Mom’s joke”. Of course,  no one is suggesting that this really happened or that this is appropriate conduct. (Have I covered all my bases now!!!!) On to Mom’s joke:

A plaintiff in a lawsuit involving large sums of money was talking to his lawyer. “If I lose this case, I’ll be ruined.” “It’s in the judge’s hands now,” said the lawyer. “Would it help if I sent the judge a box of cigars?” “Oh no! This judge is a stickler on ethical behavior. A stunt like that would prejudice him against you. He might even hold you in contempt of court. In fact, you shouldn’t even smile at the judge.” Within the course of time, the judge rendered a decision in favor of the plaintiff. As the plaintiff left the courthouse, he said to his lawyer, “Thanks for the tip about the cigars. It worked!” “I’m sure we would have lost the case if you’d sent them.” “But, I did send them.” “What? You did?” said the lawyer, incredulously. “Yes. That’s how we won the case.” “I don’t understand,” said the lawyer. “It’s easy. I sent the cigars to the judge, but enclosed the defendant’s business card.”

     And for pic o’ day,

goldfish v

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Read it again, Grammy!

Sunday, January 27th, 2013

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s HamptonRoads.com, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:

 

 

 

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Money Stumbles

Sunday, January 13th, 2013

 

I just had breakfast with someone who was bemoaning the fact that he has no 401K. One of his new year resolutions is to get started on retirement.

I just met with a financial planner; He admitted that he was frustrated with himself. A lot of the recommendations that he gave to clients was advice that he couldn’t always follow, because of life circumstances. Finances make it harder for him to put as much money aside as he thinks that he should.

Both of these men were saying what most all of us are saying. We know the road to take but it’s not always easy to get there. In my area of law, there usually is an event that has derailed any attempt at setting something aside right now. That adds to the frustration of a client who is trying to get medical treatment; trying to get better; trying not to miss too much work and still trying to make ends meet.

In a time of crisis, it’s almost a guarantee to look back at the past and say, “I wish I would have (insert a multitude of thoughts). ConsumerReports.org has some good reminders on finances that I thought were good blog fodder. They are called “Seven money stumbles to avoid”. In good times, it’s hard to follow these; In hard times, it’s even hard to read them. Still, it’s a good list to work on to keep from making some of these financial stumbles:

  • Not updating wills and beneficiaries. Eighty-six percent hadn’t updated their wills or other estate-planning documents within the previous five years.
  • Not sharing information with family. In only 30 percent of households did both spouses know major details about the family’s finances and where to find account information.
  • Messing up on 401(k)s. About two-fifths of respondents set aside 6 percent or less of pretax income in defined-contribution retirement accounts, most likely missing out on free employer matches. Ninety-one percent never reviewed fund expenses within their plans, though those expenses play a major role in investors’ returns.
  • Underinsuring. A mere 36 percent of homeowners had purchased extended coverage on their homeowners insurance that covered the full replacement value of personal property. Only 20 percent of survey respondents had umbrella coverage to protect them from liability lawsuits.
  • Not planning for emergencies. More than 70 percent said they didn’t have an emergency fund that could cover three to six months of living expenses; 77 percent had not stored important financial information and contacts in a secure place.
  • Not checking credit reports. Four out of five respondents don’t review their three credit reports at least once a year, though they’re free and indispensable.
  • Mismanaging debt. Almost one-fifth of those surveyed had revolving debt on credit cards of at least $10,000. Of the almost one-quarter of respondents who were in debt for education loans, 47 percent had taken more costly private loans.

These really are reminders of preparation and paying attention. Insurance agents have even asked me to run some ads to remind people to buy more insurance. Usually when you need it, you really need it and that’s because the person that hits you either has no insurance or very little. If you carry more than minimum, at least your underinsurance coverage can help with your losses, and then your insurance company can even go after the defendant to pay them back.

For pic o’ day, my mom sent me this one, with some real investment advice!

 

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A Titanic Injury Reminder

Monday, November 5th, 2012

I’m not sure whether I should call it a buying weakness or a hobby. It has certainly gone beyond need. I enjoy buying watches. Especially ones that are unique.

This watch is a Romain Jerome brand. It is certified by Harland and Wolff to be made from the original steel of the Titanic. Basically, they included the ship medal and made a “DNA Certified Titanic” watch.

This is an example of turning a bad situation into something worthwhile. In this situation,  owning a piece of the “RMS Titanic” that is a functioning watch.

Greek mythology tells the story of the bird, Phoenix, who rises from the ashes. A story of overcoming. That bird became the symbol of Atlanta, Georgia,  because of being “reborn” from the ashes after it was burned to the ground during the Civil War.

When I look at this watch, I am also reminded of many clients who have managed to turn a very bad situation into a positive. One client was injured on the job and no longer able to work as a pipe-fitter. I remember later, going to his restaurant that he purchased with his settlement money. It made me smile to see a crowd there and to see his look of pride.

Another client was rescued from a burning car by a driver behind her. Years later, the two got married. A wonderful relationship out of a bad situation.

Another client was able to take her settlement money and go back to school. Later, I heard that she was working at the hospital as a nurse.

People normally don’t call me with good news. They call because of some difficulty or injury. The journey can be winding. It’s nice to see an ending that involves overcoming difficulty. Turning a bad event into a something good.

For pic o’ day, how about a Polar Bear alarm clock:

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Protecting Wrongdoers and Punitive Damages

Sunday, November 4th, 2012

     After a good weekend plus a Colts win, I usually stay away from negative. This time, I am getting something off my chest! 

     At the end of October, a group of distinguished lawyers, judges and law professors got together at the Homestead to discuss issues in the law. The group meeting is called the Boyd-Graves Conference.

     The background for the formation of this group is best said on it’s website:   ”The Boyd-Graves Conference was created by the late Thomas V. Monahan, a former VBA president, who believed that civil practice in Virginia would be improved if lawyers with different types of practices, from all regions of the state, would meet and attempt to reach consensus about ways to improve the law.” It was formed in 1978 and has been very helpful in addressing question and needs of law and practice.

     This October meeting did make several significant recommendations. Then, the issue of Virginia’s laws regarding punitive damages immediately ran into a group obstacle.  

     Right now, Virginia has a state cap of punitive damages in the amount of $350,000. That means that if an entity, company or individual is found by a jury to have done or committed an act that is “willful and wanton”, which is worse than negligence. There are several legal terms for it, but basically it is willful and egregious conduct. It basically almost has to be intentional or just a disregard of doing what is right. I probably am not even describing the standard strict enough.

     Punitive damages are meant to punish the defendant; deter such future conduct by that defendant as well as others in the future;  and in doing so, protect the citizens of the state where the punitive damages are part of a verdict.

         I know I am getting too much legal stuff… but here comes the meat of my blog.

     The cap of $350,000 was enacted in 1988. If adjusted for inflation, the cap would now be approximately $677,000 without any real increase. Still, Boyd-Graves rejected any proposal to eliminate the cap or even raise it to a mere increase of $500,000.

     When you hear the term a ”business-friendly” state, you assume that it is helpful to attract businesses to Virginia. In fact, it probably does. However, I really wonder if anyone really finds out what the state caps on punitive damages are, before relocating to that state. If they do, I don’t think that is really the kind of business that we should want to open up here. Instead, I would think that they are mainly looking for tax incentives. 

     I could get stirred up more about this. A business that generates billions in revenue can create a product that they know will kill Virginia citizens. Then, they know that they are only going to be punished in an amount of 350K maximum. It can be something added to their projected balance sheet.

     In past lawsuits, there have been many memos uncovered that showed businesses considering the expense of injury versus profit. Profitability… that doesn’t mean protection for Virginia citizens. To me, I don’t think that a business should be able to weigh its conduct against what the margin of expense per violation or lawsuit in punitive might be. Punishment should really be punishment. For most big businesses, 350K has no meaningful message.  I just thought that this is topical, with an election on Tuesday.

     For pic o’ day, I am posting one of my Dad on a recent vacation. It makes me smile. (Sorry Dad!!!!!)

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Insurance For Movies

Monday, March 26th, 2012

Most of the time, we think of insurance for medical bills or cars. In Hollywood, insurance means protecting the movies. In this past weekend edition, The New York Times tells the story of how one specific company, Fireman’s Fund, is on set during many shoots, providing insurance.

Hollywood can’t insure that the movies will be blockbuster successes. But, most of the actors in major movies have some kind of  insurance to make sure “the show goes on”.

Ben Turpin was a comedian, known for his cross-eyed acting in silent films. He purchased an insurance policy with Lloyd’s of London, which was payable if his eyes ever uncrossed. Jimmy Durante was an actor, comedian and singer who was most famous for his “Schnozzola”; his description for his large nose. He felt that his nose was such a part of his act that he insured it for $50,000.

This New York Times’ article is filled with stories that are behind the scenes. Because Tom Cruise always seems to be sprinting in his movies, apparently he now believes that his stardom is connected to action or hanging from buildings. Yes, there’s insurance for that.

One of the most expensive insurance payments related to a movie titled “Wagons East!” In 1994, during its filming, 43-year-old actor John Candy had a heart attack and died. The cost of the claim was 15 million when the movie could not be properly finished for distribution.

The next time you watch a wild scene of some horse and rider sprinting through the forest; you might not be thinking about it, but there was some insurance company that was concerned about that rider during the making of that scene. It might make you watch “Hunger Games” a little differently if you see the described futuristic fight scene. Last year, Fireman’s reportedly insured more than 250 movies and related events. That’s why they call it insurance.

Pic 0′ day is a reminder to keep all eyes on the prize:

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Slip and Fall Caution

Sunday, March 18th, 2012

 

This weekend, I drove over to my parents’ house, to pick them up for Saturday lunch. I parked in the road, right up against their yard.

As we left their house and walked toward the car, we walked down the slight incline of the yard. I reminded both of them to walk very carefully because of the hill. We even were looking down at the grass, because they had just had it seeded and aerated. One area  was was a bit bald (yes, I don’t like using that… even in describing grass) and we all wanted to make sure that we steered clear of it. It had grass seed all in and around it.

     As I closed both passenger car doors, I began to step backwards. I was looking down to my left to make sure that I didn’t specifically step into that patch. Within an instant, I was down on the ground. Even with the care that I was taking, I still fell and scratched myself up a bit. All of a sudden it happened so fast and it happened to me.

     This past Friday, the Firm settled a case for a significant amount, relating to a fall near a boating dock.  When the client first fell, the rest of the family laughed because of the awkwardness of the fall. Very quickly, it became very clear that this was no simple fall and that our soon to be client was seriously hurt.

     Within the last couple of weeks, the firm has undertaken representation, with significant injuries; from slip, trip and falls. Even  family members have fallen and others have come very close.  I thought I’d just jot some notes down for the blog.

     The government’s Center for Disease Control (CDC) state over one million Americans suffer slip, trip and fall each year and as many as 17,000 in the U.S. die annually from these injuries. It is the #2 leading cause of injury.

     The National Resource on Aging and Injury (NRCAL.org) estimates that every 35 minutes, an older adult dies as a result of a fall. The Research Institute, using the Government’s Bureau of Labor statistics, records that slip and fall injuries are the most disabling in the restaurant industry. In that same study, it was estimated that 104 million workdays are lost per year, from such injuries.

     The National Floor Safety Institute breaks down reports of slip and fall accidents in the following pie chart:

 

      I don’t want to make this blog all about statistics. The University of Florida has a good site (here) on how to prevent injuries from slips, trips and falls.

     The site reminds of the importance of wearing the correct shoes, that include fitting and traction. Proper housekeeping can help reduce falls in the home.

     Paying attention and not being distracted; or holding on to the railings of steps all are logical reminders. One last mini-list in the article was learning how to fall.

     1. Tuck your chin in, turn your head and throw an arm up. It’s better to land on an arm than your head;  2. While falling, twist or roll your body to your side.  Better to land on your buttocks and side than your back;  3. Keep your wrists, elbows and knees bent and don’t try to break your fall with your hands or elbows. Try to spread the impact of the fall across as many square inches of your body as possible.

     An old TV show about police day-to day activities was called “Hill Street Blues”. Every show would begin with the morning roll call of the police precinct. At the end of announcements, Sergeant Esterhause would pause and then say, “Hey, let’s be careful out there”.  For all of us… a good reminder.       

      And Pic o’ day is a reminder about helping each other :)

 

 

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