Contract – Concrete Mix – Bridge Foundation – Liability Limit 
By Deborah Elkins
Published: June 30, 2008
Although defendant concrete company did not deliver concrete of the strength specified in a contract for construction of a bridge at MeadWestvaco, the parties’ contract conspicuously and expressly limited the company’s liability, the language limiting liability was not unconscionable and these facts, combined with the parties’ course of dealings since 1997, are effective to limit [...]
Workers’ Comp – Arising Out Of -Hotel Slip & Fall
By Deborah Elkins
Published: June 30, 2008
The Court of Appeals affirms an award of workers’ comp benefits to a woman who was, at the time of her fall in the work place, hurrying in order to serve one of employer’s customers and avoid leaving employer’s new employee alone at the front desk of the Holiday Inn.
Claimant testified that the dim, varied [...]
Search & Seizure – Game Warden – Suppression Order – Firearm Charge
By Deborah Elkins
Published: June 30, 2008
The Court of Appeals upholds a trial court order suppressing a firearm discovered on defendant by a game warden who was conducting a decoy deer operation in Giles County.
The commonwealth is barred on appeal from arguing that the game warden affected a custodial arrest of defendant. The commonwealth’s argument that the search fell under the [...]
Domestic Relations – Termination Of Parental Rights – Rehabilitative Services
By Deborah Elkins
Published: June 30, 2008
A mother with a history of mental illness cannot overturn the termination of her parental rights to her newborn infant on the ground that the Petersburg Department of Social Services failed to provide her with rehabilitative services, the Court of Appeals holds.
Based upon the circumstances of the case and a mental health evaluation, the trial [...]
Criminal – Cocaine Possession – Couch Corner
By Deborah Elkins
Published: June 30, 2008
There was sufficient evidence to convict defendant of cocaine possession, the Court of Appeals holds, based on the trial court’s belief of an officer’s testimony that he saw defendant insert his hand into the corner of the couch on which he was sitting and immediately remove it, that the officer never took his eyes off [...]
Criminal – Alford Plea – Motion To Withdraw Plea
By Deborah Elkins
Published: June 30, 2008
A trial court did not abuse its discretion, the Court of Appeals says, in refusing to allow defendant to withdraw his Alford plea to various sexual offenses involving a minor, based on defendant’s claim that he was subjected to “undue influence” and “pressure” by his attorney to enter the Alford plea.
The record shows that defendant [...]
Criminal – Hearsay – Harmless Error – Murder
By Deborah Elkins
Published: June 30, 2008
At defendant’s trial for first-degree murder and use of a firearm, the trial court’s error of admitting out-of-court statements by two men who identified defendant as the shooter to police, was harmless, the Court of Appeals says.
Since no forensic evidence linked defendant to the murder and the two men, the only eyewitnesses to identify defendant [...]
Administrative – Dentist Discipline – Billing Practices
By Deborah Elkins
Published: June 30, 2008
A dentist’s billing practice of providing insurance companies with his “usual and customary fee” did not mean he was charging the companies for the subject procedures based on that fee schedule and thereby engaging in deceptive billing practices, and the Court of Appeals reverses a circuit court decision upholding sanctions against the dentist and remands [...]
Criminal – Carjacking – Other Crimes Evidence
By Deborah Elkins
Published: June 30, 2008
Where defendant claimed he was just an innocent bystander who had accompanied his friend who committed a carjacking against an elderly woman, the Court of Appeals says the trial court did not err in admitting into evidence defendant’s statement that he and his friend had committed “10 to 20 other carjackings in the District of [...]
Criminal – Request For Counsel – Ambiguous Statement
By Deborah Elkins
Published: June 30, 2008
A defendant’s statement – 16 pages into an 18-page transcript of his conversation with a detective – “I mean, know what I’m saying until know what I’m saying talk to my lawyer and see what he got to say about it,” was not a “clear and unequivocal” assertion of his right to counsel, and the [...]
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