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The Virginia General Assembly

Mark Twain said, “No man’s life, liberty, or property are safe while the legislature is in session”. That saying always makes me smile and then nod.

I start the blog out with that because I have asked Brian Sullivan to do a summary of the past Virginia General Assembly session. I’ll let you decide if you think Mark Twain was right. On to Brian’s analysis:

 

This past January and February, the Virginia General Assembly met and considered nearly 3,000 bills, resolutions and budget amendments.  Of those, the House passed 456, and the Senate passed 344; for a grand total of 800 new laws!  Well, slightly less since some are doubled; but it’s still a lot and most of these go into effect on July 1st.   So you better get to reading!

Fortunately, the vast majority of these will have little to no effect to you whatsoever.

For example: House Bill (HB) 1545 and Senate Bill (SB) 685 removes the word “inspection” from references to the United States Postal Inspection Service in several criminal procedure sections.  Exciting, right?

Other new laws may effect you, but almost unnoticeably; HB1440 & SB899 allow the ABC to round the final price of each container of alcoholic beverages it sells to end with a nine (9).  Under current law, the final price may be a multiple of five (5).  So if you’re planning a large Independence Day party, be sure to do your shopping a week in advance to save those 4 pennies!

News coverage for the session has mostly focused on new laws concerning the handling and reporting of sexual assaults on college campuses, ethics reform, budget amendments, and a few others.  Most of the other bills passed are technical adjustments or minor policy changes, others only effecting associations or a small subset of the population.  But there are a few that could be of interest to you.  Let’s take a look:

  • HB1342 & SB1220: These bills expand the law against following too closely to more than just cars.  This now includes non-motor vehicles like bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds.
  • HB1499 & SB1427: Provide that a mother may breastfeed in any place where the mother is lawfully present. Current law only allows breastfeeding on any property owned, leased, or controlled by the Commonwealth.
  • HB1307 & SB1293: Public elementary and secondary schools will no longer be permitted to require parents to provide the student’s social security number.  Instead, an identification number program is being developed.  (goes into effect August 1st.)
  • HB2090 & SB1260: Require new training standard materials and regulation for Restaurants that address food safety and food allergy awareness and safety.

And last but not least:

Of course, depending on what you do for a living or what your interests are, there are potentially many new laws that may directly effect you.  If you’d like to take a look at all the bills that were passed by the General Assembly this year, it’s as easy as clicking here.

And now for our usual blog pic o’ day…

Bear

 

 

 

A Dismissed Case

This is the story of a case that ran out of time and money. It reminds me of the poem by Benjamin Franklin:

“For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe-nail.”

A  harsh result, but this really happened. The name of this Virginia case is Landini v. Bil-Jax

It was a case about a product that caused an injury. This products-liability case was filed by a school employee.  A Roanoke lawyer drafted the lawsuit to file in Powhatan County, where the injury occurred. The lawsuit filed was seeking an amount of  $2.5 million dollars.

The lawyer, or someone on her staff, called a local circuit court in the Roanoke area to confirm how much the filing fees were for a $2.5 million lawsuit. The answer was $344. On September 2, The lawyer overnighted her $344 check with the drafted lawsuit, to the Powhatan Circuit Court.

The next day, the clerk  received the mailing with the check and lawsuit which was September 3. The lawsuit had to be filed by September 9 because of the two year statute of limitations time period.

The clerk called the lawyer on September 9. and told her that the filing fee check was short. As it turned out, Powhatan County charges more than the Roanoke Court. The clerk advised that “Your filing fees are $2 short; it’s $346.” The filing fee was more because during the previous year, Powhatan County had approved an increase in their library fee that was tacked on to the court filing fee, from $2 to $4.

As soon as the clerk notified the lawyer, she agreed to send another check for the needed amount. She mailed that that check out the next day. When the check arrived,  the clerk stamped the lawsuit as filed. The date of the stamp was September 13,  now four days after the statute of limitations deadline.

At that point, the clerk had never told the lawyer that the lawsuit had not been docketed as filed. The clerk had only told her that she needed to send an extra $2. There was no discussion of the clerk holding off on filing the suit until the small amount was received, so the lawyer didn’t know that her statute of limitations was running.

In the state of Virginia, you can wait up to a year to serve your lawsuit on the defendant. In this case, the Roanoke lawyer never served the suit, so she nonsuited it and then refilled it and then served it on the defendant.

That’s when it happened! The lawyer  received the defendants’ pleading called a special plea of the statute of limitations. I don’t even want to imagine the lawyer’s feelings as she read her mail that day and saw that her original lawsuit had been date stamped originally as being filed four days too late, after the statute of limitations September 9 original deadline.

The trial court ruled that the plaintiff had indeed filed the original suit two years and four days after the injury; meaning that it was filed after the statute of limitations had run. The Roanoke lawyer appealed.  The Virginia Supreme Court agreed with the lower court and determined that the filing fee, including the library fee, had to be paid before the lawsuit could be considered filed. A dismissal over  2 dollars.

Maybe that is why the practice of law has been described as five baskets, five snakes… and four lids.

And for our pic o’ day, it’s all about the evidence. And if you are in the snow right now… be real careful out there!

marshm

 

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News From the Road

There’s a blogger that I regularly read, who titles many of his morning blogs as Morning Leftovers. That’s because he writes day and night about baseball.

Today I am headed up to West Virginia for some work on a case that includes a mediation. So, I also went with the obvious blog title.  The mediation will include at least eight different defense lawyers, because of the many defendants. I hope that they have lots of available food!

So, I thought I would post a couple of quick news stories that caught my attention. First, did you see that former Congressman from Virginia, Eric Cantor, has taken a job with a Wall Street Bank? (Marketwatch.com)  Are you nosy like me? (By the way, I had to look up the spelling of nosy. I learned it can be spelled both ways.)

The article says that he will make at least 3.5 million dollars over the next 16 months. He was hired according to the CEO, “for his judgment and experience”. Cantor has no previous banking experience. Imagine his salary if he had experience!

The second quick news story today takes us to South Carolina. A teenager is suing the Division of Motor Vehicles (Yahoo) because they would not let him wear makeup for his new driver’s license photo.

The sixteen-year-old Chase Culpepper says that he sometimes wears makeup and woman’s clothing and that DMV told him that he was ordered to remove his disguise. He says he left the building feeling humiliated. Culpepper has filed suit and his complaint alleges that “Chase should be allowed to get a driver’s license without being subjected to sex discrimination”.

And for pic o’ day.

chick magnet

Seminar Sittin’

All of our Firm lawyers from the Virginia offices are attending the Virginia Trial Lawyers’ convention. Each year, Virginia requires us to attend 12 hours of continuing legal education that includes 2 hours of ethics. This will count toward that requirement.  Plus, we will work in some good meals!

The seminar is at a facility called the Homestead this year. It is a resort on the Virginia/West Virginia line. A bit of a getaway.

It starts at 1P today and runs through Saturday. The organizers are smart in their scheduling because the seminar starts with the two hours of ethics, which means that most want to be there by the beginning to get the ethics credit. The first ethics speaker happens to have his office across from our Richmond office.

I promised the office that I would post some pictures from the seminar.  So, the pressure is on!

And for Pic-O-Day…

32689

Woes of an Ex-Doctor

     This is a tale of woe from Staunton, Virginia. (NewsLeader.com)  Charles K. Weisman had his medical license suspended  after  the Board of Medicine determined  that he had smoked marijuana at his practice, kept alcohol in his office, prescribed testosterone to himself, swore at patients and kept faulty records. I know, you almost have to read that sentence a second time to take it all in.

     Like a bad ad, imagine hearing the voice that says, “But wait, there’s more”.  Weisman was also accused of misdemeanor sexual assault against two female employees. Those charges were later amended to simple assault and then ultimately dropped. Then, in his continuing events of life;  in 2009, a Staunton store owner accused Weisman of trespassing after the two men argued over storage space. (2009)

     I know you’d rather hear that exciting voice screaming, “set it…and forget it”. Instead, let’s stay with the same theme…”But wait, there’s more”.  In 2011, a judge found Weisman not guilty after Weisman was initially charged on a misdemeanor charge of obtaining money by false pretenses, after he was accused of giving a man a foot rub but trying to charge him for an X-ray at his Day Star Medical Center.

     A month later, his girlfriend brought an assault and battery charge against him,; Ultimately, that was taken under advisement and dismissed. 

     Now, what is going on in his life?… Yes, there is more.

     This past Tuesday, he was found to be operating a heating, ventilation and air-conditioning business without a license, and was convicted  on a misdemeanor charge of violating Virginia’s Profession and Occupation act.

      So, I guess we are all caught up. Maybe we should check in on him in a couple of weeks!

     And for pic o’ day, I thought I would stay in a bit of the theme:

Line up

Protecting Wrongdoers and Punitive Damages

     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!!!!!)

Rules of Court and Field

In every jury trial, the Judge will read the law of the case. The jury is “instructed” on how to view the evidence, based on law.

In Virginia, it is very difficult to get a verdict for punitive damages. Lawyers have to meet certain burdens of proof to even get that issue to the jury. Then, Virginia has a cap of $350,000 for punishment damages. That means that a company can do business in Virginia and know that no matter how vicious or mean their conduct might be, they still will only have to pay a maximum of $350,000.

While a cap on punishment damges  is bad for the protection of Virginia residents, it’s good for companies who know that they can color outside the lines with little penalty.

In law and in sports, we are all supposed to play by the rules. In the NFL, it seems that the replacement referees are not enforcing rules very consistently. Anarchy seems now to reign.

When companies are reckless, it irritates me that there are not real rules to make them pay. Amy sent me the following picture that sums up the application of rules in football right now. We all need fair rules applied!

The Stands of Ken Cuccinelli

Virginia Attorney General Ken Cuccinelli  probably has made both sides of the aisle a bit unhappy. He expressed his personal opinions regarding Federal  tort reform, and applied his same reasoning to restricting the Environmental Protection Agency(EPA).

Now, I know that politics can be some pretty boring stuff. I’ll bet that a few have already scrolled to pic o’ day. So, I’ll try to be quick.

Big Business and The Chamber of Commerce decided a long time ago that it’s cheaper to influence Congress and the US Senate,  rather than spending money in every state, trying to influence each legislator. So, if you can get favorable laws enacted Federally that override states’ rights, then you’ve done it in one vote; controlling 50 states.

Ken Cuccinelli has taken the position that the Federal Government should not be involved in the business of what individual states do; particularly Virginia.  He wrote an editorial piece in the Washington Post on Sunday, expressing this very point that would keep the federal government from restricting lawsuits, or enacting lawsuit caps, or requiring states to ignore their own laws, in favor of the Federal Government.

Here’s a short version of what he said about such Federal action. Specifically, he was also addressing Senate Bill 197 that attempts to cap damages in medical malpractice cases. “This legislation expands federal power, tramples states’ rights and violates the Constitution. If it were ever signed into law, by a Republican or Democratic president, I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law.”

Such expressed opinion goes against many in the Republican Party. In keeping with that thought, he disagrees with Democrats because he blasted the EPA, in testimony before a US  House Committee. He believes that upcoming air quality regulations would have a devastating impact on Virginia.

The EPA has regulations in effect to take place soon, that would require coal-fired plants to make equipment changes and retrofitting of their facilities,  to decrease  pollution. He believes that such restrictions will put such burdens on the coal companies that it will cause business closings and cost jobs.

OK, I know I’m getting carried away with politics. The quick point is that, even though there may be evidence that the EPA is trying to restrict mercury, arsenic, dioxin and other pollutants, Cuccinelli is again saying, “Federal Government… Stay out, let’s States take care of this”.  Just something to think about.

Now, if you’ve made it to the bottom, here is pic o’ day… Feeling left out:

Congressman Scott Rigell’s Dilemma

     I intended to move to Part 2, for yesterday’s blog, and got sidetracked on another blog story. I promise to get to the   “Why”, for the Governor McDonnell veto. In the meantime, I do what I seem to always enjoy doing….. I digress.

     I saw an article in Pilot Online  that  discusses the NO vote of Congressman Scott Rigell (R-VA), from the 2nd District. Bills becoming law have always held some fascination for me. It’s why I was a Political Science major in college, in the first place.

      Political Science majors were always known as people that didn’t know what they wanted to major in, so it seemed easy and not too much of a commitment toward any specific career. I once heard a minister joke that the way that some knew that they wanted to be ministers in churches, was that “they woke up in the morning, craving chicken and not wanting to go to work”. Kinda like Poly Sci.

     All that leads me to Congressman Rigell voting against the Federal budgetary deal, that funds the government through  the remaining months of 2011. I have seen both sides of the aisle agree on voting against it and for it. In this instance,  even liberal Independent Senator  Bernie Sanders  (I-VT) also voted against the budget bill.

     This shows different philosophies arriving at the same ending.   Sanders says he voted against it because it did not provide funding for programs that helped the poor and elderly. He thought the budget does not do enough in funding.

     Congressman Rigell thought it didn’t do enough in reductions . He was the lone Virginia legislator to vote against it because it does not adequately deal with the budget deficit. He feels that, as a fiscal conservative, he could not vote for this spending bill.

     Now, drawing on my old Political Science days, here is the interesting caveat. Rigell’s vote basically was voting to shut down the government. That would have the effect of shutting down government services; eliminating or delaying government worker pay; and halting or delaying military pay. The Second District (Rigell’s) has many government and military personnel that he represents…. His constituents that elected him. 

     Rigell said that passage of this bill increases the federal deficit. Such an increase “threatens the foundation of this country”

     To me, some of this blog gets a bit boring until you consider the following  question. As an elected Congressman, does he owe a duty to vote for his constituents or vote for what he thinks is best for the country. I suspect that the next election for Congress will have an ad that may ask prospective voters, that exact question. “Who does Congressman  Rigell represent?”  Kinda like trying to figure out the correct blog title spelling for  “dilemma” or “dilemna”.

Mall Texting Reminder

     I’m not one who enjoys watching videos of people getting hurt. However, (you knew that there would be that “However” inserted) the youtube video below is going viral. It is a reminder of what happens when texting takes over your life.

     It’s also a reminder why Virginia has taken a stand against texting and driving. This video clip is being narrated by someone who had access to mall camera security. Fortunately, this girl was not hurt. Hopefully, her mall splash will remind her to not text and drive or even text and walk.

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