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Important Opinions 2013


The “Important Opinions” that appear each week on the front page of Virginia Lawyers Weekly are those chosen by our editors as the most likely to impact law practice or a given subject area of law. Below is a listing, arranged by practice area, of the most Important Opinions of 2013, January to December. Named subscribers are entitled to a free full-text PDF copy of any opinion listed here. Just click on the link at the end of the entry. If you do not currently subscribe and would like access to these PDFs and the other great benefits, please visit our subscription page.

ADMINISTRATIVE * ADMIRALTY * ATTORNEYS * BANKRUPTCY * CIVIL PROCEDURE * CIVIL RIGHTS * COMMERCIAL * CONSTITUTIONAL * CONSUMER PROTECTION * CONTRACT * CORPORATE * CREDITOR’S RIGHTS * CRIMINAL * DOMESTIC RELATIONS * EMPLOYMENT * EMPLOYMENT DISCRIMINATION * ENVIRONMENTAL * EVIDENCE * IMMIGRATION * INSURANCE * INTELLECTUAL PROPERTY * LABOR * MEDICAL MALPRACTICE * MUNICIPAL * NEGLIGENCE * PRODUCTS LIABILITY * REAL ESTATE * SEARCH & SEIZURE * TAXATION * TORT * TRAFFIC OFFENSES * WILLS & TRUSTS * WORKERS’ COMP

ADMINISTRATIVE

No FOIA Docs for Contractor Being Sued

Documents provided to the federal government by a military housing contractor to obtain approval to terminate the contractor’s partnership with another company and sue it for alleged fraud are not discoverable by the defendant company through a FOIA request, and the 4th Circuit says the government may withhold the confidential documents.

American Mgmt. Services LLC v. Dep’t of the Army (VLW 013-2-006) (18 pp.)

Real Estate Broker Had Due Process

A real estate broker whose license was revoked and who was issued a sales license with a suspension cannot show a due process violation based on her assertion that her illness and hospitalization kept her from attending the Real Estate Board’s meeting to decide to impose sanctions; the Richmond Circuit Court says appellant was afforded an opportunity to be heard and participated in an earlier evidentiary hearing.

Alarhabi v. Commonwealth of Va., Real Estate Board (VLW 013-8-147) (3 pp.)

Gun Permit Granted After Special Court-Martial

A Fairfax Circuit Court grants a permit for a concealed handgun to an applicant who, as a member of the U.S. Navy, pled guilty to three offenses in a Special Court-Martial and received a four-month sentence, reduced rank, pay forfeiture and a bad conduct discharge.

In re: Maximillian Nelson (VLW 013-8-118) (4 pp.)

Agency Employee Wins Reversal of Termination

A Department of Juvenile Justice trainer who grieved her termination after she backhanded a student who was cursing and who won a suspension in lieu of termination now wins reversal of a circuit court decision reinstating the termination; the Court of Appeals said the circuit court  misapplied the appropriate standard of review.

Coffey v. Va. Dep’t of Juvenile Justice (VLW 013-7-286(UP)) (6 pp.)

Providers Have Viable Challenge to Virginia COPN

A district court erred in dismissing a Commerce Clause challenge by out-of-state medical providers to Virginia’s requirement for a Certificate of Public Need prior to opening certain facilities in Virginia; the 4th Circuit affirms dismissal of the providers’ challenges under the 14th Amendment, but reverses dismissal of the Commerce Clause claim.

Colon Health Centers of America LLC v. Hazel, Sec’y of Virginia Health & Human Resources  (VLW 013-2-192) (28 pp.)

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ADMIRALTY

No Maritime Suit for Fishing Boat Slip & Fall

A plaintiff suing for injuries from a slip and fall on a recreational fishing vessel has not established federal maritime jurisdiction and the Newport News U.S. District Court dismisses her personal injury suit for lack of subject matter jurisdiction.

Wild v. Gaskins (Va. VLW 013-3-596) (8 pp.)

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ATTORNEYS

Lawyer Was ‘Incompetent,’ Not ‘Frivolous’

An assistant prosecutor was incompetent, in violation of Rule 1.1, in charging a defendant with illegal possession of a pain-killer drug even though defendant had purchased only fake medication in a police sting; but the Supreme Court of Virginia says the prosecutor did not violate Rule 3.1 regarding assertion of frivolous claims or Rule 3.8(a), which addresses additional responsibilities of a prosecutor.

Livingston v. Virginia State Bar (VLW 013-6-051) (20 pp.)

Court Awards $880K Sanctions Against Lawyer, Client

A divorcee who persisted in her legal action for an accounting of a trust fund belonging to her ex-husband, despite receiving numerous documents and offers of assistance in document review from his lawyers, is sanctioned, along with her lawyer, for her “scorched-earth” litigation campaign in violation of Va. Code § 8.01-271.1, and a Fairfax Circuit Court imposes over $880,000 in sanctions against the plaintiff divorcee and her lawyers.

Christ v. Flinthill Space Communications Trust (VLW 013-8-072) (42 pp.)

No Fee Award for Nonsuited Case

In a case of first impression, a Fairfax Circuit Court says a fee award in a subsequent lawsuit cannot include fees from the parties’ prior nonsuited case, even though the parties agreed to incorporate discovery from the nonsuited case into the subsequent lawsuit; the parties’ prior agreement controls the fee award, and neither party was a “prevailing party” in the nonsuited case.

Tureson v. Open System Sciences of Virginia Inc. (VLW 013-8-069) (3 pp.)

No Double Duty for Lawyer as Trial Counsel/Witness

A Richmond U.S. District Court grants defendant indemnity company’s motion to disqualify or limit the trial role of a lawyer who represents plaintiff Ford Motor Company on contract and tortious interference claims; defendant is relying on a conversation and emails between Ford’s lawyer and defendant’s representative to defend claims for payment, and defendant has met Virginia ethics rules for disqualification of a witness/advocate.

Ford Motor Co. v. Nat’l Indemnity Co. (VLW 013-3-424) (19 pp.)

Lawyer Blogger Agrees to Post Disclaimers

A three-judge panel sitting in Richmond Circuit Court enters a Consent Order requiring a lawyer-blogger to post a specific disclaimer with each discussion of his past cases, and issues a public admonition with terms for the lawyer’s violation of Rules of Professional Conduct 7.1(a)(4) and 7.2(a)(3).

Virginia State Bar ex rel. Third District Committee v. Hunter (VLW 013-8-089) (5 pp.)

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BANKRUPTCY

Lien-Stripping Approved in Chapter 20 Cases

In a “Chapter 20” bankruptcy case – a Chapter 13 bankruptcy filed within four years of a Chapter 7 discharge – there is no per se rule barring lien-stripping, and the 4th Circuit affirms an order stripping off liens secured by collateral with no value to support them in this suit over debtors’ homes.

Branigan v. TD Bank NA (VLW 013-2-097) (20 pp.)

No Proofs of Claim for HOA Members

In this bankruptcy proceeding by debtor homeowners’ association, the bankruptcy court erred in allowing proofs of claim filed by HOA members who say they suffered damages when they reasonably relied on false representations about allocation of parking spaces to townhomes without garages; the Alexandria U.S. District Court reverses judgment for the appellee-creditors, who failed to prove their claims of constructive fraud.

Batt v. Manchester Oaks Homeowners Ass’n Inc. (VLW 013-3-148) (10 pp.)

No Lien Strip-Off for ‘Entirety’ Property

A bankruptcy court may refuse to “strip off” a “valueless lien” against real estate that debtor owned with his non-debtor spouse as tenants by the entireties; the 4th Circuit says the bankruptcy court correctly held it did not have the authority to strip off the lien because the complete entireties estate was not before the bankruptcy court.

Alvarez v. HSBC Bank USA NA (VLW 013-2-191) (15 pp.)

Divorce Lawyer Has Claim for Legal Fees

A divorce lawyer who won attorney’s fees to be paid directly to her by husband has standing to pursue her claim for fees in husband’s bankruptcy proceeding; the Alexandria U.S. District Court says it would be unjust to allow husband to deprive the divorce lawyer of compensation due for her advocacy and hard-fought results she obtained for her client.

Collins v. Solomon (VLW 013-3-553) (18 pp.)

Court Must Apply New Standard for ‘Defalcation’

An insurance carrier that had to pay a bond to an estate after debtor, conservator of the estate, forfeited the bond by failing to show cause why he did not file a final accounting, must show debtor’s bad faith or gross recklessness  in order to prove the bond debt is nondischargeable due to debtor’s defalcation; as the legal standard for “defalcation” has changed since the bankruptcy court issued its decision, the Harrisonburg U.S. District Court remands the case for further proceedings.

Cincinnati Ins. Co. v. Chidester (VLW 013-3-428) (9 pp.)

Purchase Loan Was Nondischargeable

A Lynchburg U.S. District Court reverses a bankruptcy court’s denial of a creditor’s motion to have a debt declared nondischargeable; the bankruptcy court erred in its factual findings, and the district court concludes the creditor has proven fraudulent misrepresentations that render the debt nondischargeable.

Johnson v. Dowling (VLW 013-3-123) (13 pp.)

Ch. 13 Plan Should Consider Social Security

The 4th Circuit says the Bankruptcy Code excludes Social Security income from the calculation of “projected disposable income” in a debtor’s proposed Chapter 13 plan, but such income nevertheless must be considered in evaluating the plan’s feasibility, and this case will go back to the bankruptcy court.

Ranta v. Gorman, Trustee (VLW 013-2-140) (55 pp.)

Gambling Debt Undermines ‘Hardship’ Claim

Although plaintiff’s auto accident and back surgery affected her ability to work and pay off her student loan debt of nearly $20,000, she spent thousands of dollars on gambling trips to Atlantic City, and the Richmond U.S. District Court upholds the bankruptcy court’s denial of a discharge of plaintiff’s student loan debt for “undue hardship.”

Pettaway v. U.S. Dep’t of Education (VLW 013-3-406) (10 pp.)

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CIVIL PROCEDURE

Venue Transfer in Richmond P.l. Case

In this auto-accident personal injury suit, although defendant lawyer serving as administrator of a deceased driver’s estate has an office in the city of Richmond, venue is not proper in Richmond, and the Richmond Circuit Court orders the suit to be transferred either to Powhatan County, where the accident occurred, or to Chesterfield County, where the lawyer qualified as administrator of the estate.

Jones v. Stokes (VLW 013-8-030) (3 pp.)

Driver, Passenger P.I. Suits Severed

In this p.i. case, a Richmond Circuit Court severs plaintiff mother’s case from plaintiff son’s case, as mother has an extensive medical history that may distract from passenger son’s case.

Smith v. Wright (VLW 013-8-040) (2 pp.)

No Sanctions Against Corporate Debtor

A Danville U.S. District Court Magistrate Judge denies plaintiff’s motion for sanctions against defendant for its responses to plaintiff’s debtor’s interrogatories proffered in an attempt to collect a judgment; plaintiff has not complied with Virginia procedure for execution of a judgment and the court declines to impose sanctions against defendant’s corporate officers, its counsel, or its bookkeeper, who answered all deposition questions except those defense counsel instructed her not to answer.

Virginia Brands LLC v. Kingston Tobacco Co. (VLW 013-3-155) (15 pp.)

Company May Claw Back Emails in Patent Case

In this discovery dispute in patent litigation involving software used to facilitate distance learning, a Norfolk U.S. District Court Magistrate Judge says plaintiff company did not waive attorney-client privilege when it shared certain email communications with a former board member who was the “functional equivalent” of a current board member, and plaintiff may claw back those email communications.

Digital Vending Services Int’l Inc. v. The University of Phoenix (VLW 013-3-184) (18 pp.)

Default Set Aside After Carrier’s Delayed Response

In plaintiff’s suit alleging injuries from defendant’s tractor-trailer crashing into her from behind as she veered into a median to avoid roadway debris, a Harrisonburg U.S. District Court will set aside default entered against defendant box company, who was unaware of foot-dragging by its own insurance carrier.

Parks v. Discount Box and Pallet Inc. (VLW 013-3-124) (16 pp.)

Extra Time for Service After Removal

A Roanoke U.S. District Court quashes service of process in this slip-and-fall case, but says plaintiff may amend her complaint to correct defendant’s name, and she has additional time to serve her complaint because defendant removed the case from state to federal court.

Dietz v. McAdams-Norman Property II LLC (VLW 013-3-032) (11 pp.)

ESI Discovery Response Not ‘Readily Usable’

A defendant who produced ESI – mostly emails – without providing an index or ordering the documents as responsive to specific requests for production, is ordered to pay reasonable costs up to $8,463 for plaintiff to use its own software to convert the documents into a format it can use, in this decision by the Lynchburg U.S. District Court Magistrate Judge.

Hanwha Azdel Inc. v. C&D Zodiac Inc. (VLW 012-3-648) (5 pp.)

No Extra Service Time for ‘Dead’ Suit

Although a Virginia state court vacated a nonsuit order, entered on plaintiff’s nonsuit motion filed one day before expiration of the one-year statutory service period, service of process on defendants one day after the nonsuit was vacated was defective and the sexual-harassment suit, which was removed to federal court, is dismissed; on an issue that has split Virginia federal courts, the Alexandria U.S. District Court says Virginia law controls and the tolling period does not apply where the nonsuit later is vacated.

Rice v. Alpha Security Inc. (VLW 013-3-281) (29 pp.)

Carrier May Amend Notice of Removal

In this suit filed in Virginia state court to collect on an insurance policy, the Norfolk U.S. District Court says the carrier’s notice of removal insufficiently alleges citizenship for diversity jurisdiction, but the court will allow the carrier to amend or correct the notice of removal and denies plaintiff’s motion to remand.

DBS Inc. v. Selective Way Ins. Co. (VLW 013-3-350) (7 pp.)

Work Product Privilege Protects Draft Docs

In ePlus’ suit against Lawson Software Inc. alleging their illegal sale of certain product configurations within the U.S., the Richmond U.S. District Court grants in part ePlus’ motion to compel production of documents, including holding, on a matter of first impression, that certain draft documents, although prepared for public consumption, nonetheless are protected by the work product doctrine, presuming they are claimed as such and are in fact prepared in anticipation of litigation.

ePlus Inc. v. Lawson Software Inc. (VLW 012-3-623) (21 pp.)

‘Profitability’ Defense Experts Excluded

An expert on a t-shirt company’s profits cannot just “parrot his client’s findings or calculations” and then pass that data off as his own expert opinion, and a Charlottesville U.S. District Court excludes his expert opinion.

Capital Concepts Inc. v. The Mountain Corp. (VLW 013-3-152) (21 pp.)

Plaintiff Can’t Compel Unredacted Document

A company being sued for federal trade dress infringement and unfair competition under the Lanham Act did not forfeit its attorney-client protection for a “strategic memorandum” that was not drafted by a lawyer, was shared on a “need to know” basis and was mistakenly disclosed to plaintiff, and the Roanoke U.S. District Court Magistrate Judge will not order defendant to produce an unredacted version of the document to plaintiff.

McAirlaids Inc. v. Kimberly-Clark Corp. (VLW 013-3-268) (12 pp.)

Lawyers’ Efforts Not ‘Duplicative’ in Fee Award

In awarding attorney’s fees and costs in the wake of granting a motion to compel discovery, an Alexandria U.S. District Court magistrate judge rejects an award of $28,345, as requested by counsel, and finds a fee of $23,442.50 to be reasonable; it is reasonable and customary for both associates and partners to work on the same motion and their time expended is not duplicative, but appropriate.

Mitile Ltd. v. Hasbro Inc. (013-3-510) (4 pp.)

Court Won’t Seal Attorney Fee Request

A Richmond U.S. District Court denies plaintiff’s motion to file under seal itemized attorney time entries, attorney biographies and declaration of counsel submitted in support of its attorney’s fee request.

Autopartsource LLC v. Bruton (VLW 013-3-438) (5 pp.)

Court Applies Test to Depose Opposing Counsel

In Ford Motor Company’s suit against National Indemnity Company for tortious interference with contract and business conspiracy, defendant NICO may not take the deposition of Ford’s lawyer to support its claim that the lawyer’s communications to NICO’s lawyer prompted Ford to halt payments on certain claims; the Richmond U.S. District Court applies the Shelton test for depositions of opposing counsel, and says if Ford decides to call its lawyer to testify, it must allow the lawyer to be deposed immediately.

Ford Motor Co. v. National Indemnity Co. (VLW 013-3-369) (7 pp.)

Security Guard Negligence Claim Remanded

A Kroger customer who alleges she was injured when a security guard tried to apprehend a suspected shoplifter who shoved plaintiff into a metal sign may have a claim against the security guard, and because the security guard and plaintiff are both Virginia residents, the Richmond U.S. District Court has no diversity jurisdiction in the matter and remands the case back to Virginia state court.

Pate v. Kroger LP I (VLW 013-3-270) (3 pp.)

Winning Party’s ESI Cost Recovery Limited

In a wine wholesaler’s unfair practices lawsuit against Gallo Winery, the 4th Circuit clarifies which ESI expenses are taxable under the federal taxation-of-costs statute, and upholds a district court decision refusing to award costs for a broad array of ESI-related costs and awarding the winning winery only $218.59 for TIFF and PDF production of documents, of the $111,047.75 in ESI costs claimed by Gallo.

The Country Vintner of North Carolina LLC v. E.&J. Gallo Winery Inc. (VLW 013-2-087) (24 pp.)

Wrongful Death Suit Remanded to State Court

In this infant wrongful death action filed against multiple defendants, including a Virginia hospital as the sole non-diverse defendant, the plaintiff’s act of serving all defendants but not serving a summons on the Virginia hospital did not result in the automatic severance of the claim against the hospital under the state court’s orders, and the Alexandria U.S. District Court remands the case to state court for lack of diversity.

O’Leary, Adm’r v. Simply Thick LLC (VLW 013-3-481) (6 pp.)

Court Adopts Test for Trust Citizenship

In this dispute over ownership of coal bed methane interests, the Abingdon U.S. District Court grants plaintiffs’ motion to dismiss for lack of subject matter jurisdiction, as a beneficiary of a trust that is a member of defendant LLC is a citizen of the same state as one of the plaintiffs.

Poulos v. Geomet Operating Co. (VLW 013-3-287) (6 pp.)

Dismissal Sanction Upheld for Discovery Abuse

A trial court did not abuse its discretion in dismissing a government subcontractor’s suit against the general contractor for alleged unpaid invoices for operations support to develop an Iraqi civilian police force; in light of the subcontractor’s repeated discovery abuses, the 4th Circuit upholds the sanction.

Projects Management Co. v. DynCorp Int’l LLC (VLW 013-2-204) (24 pp.)

Sanctions Award for ERISA Claim Against IRA

An Abingdon U.S. District Court says lawyers for a decedent’s ex-wife violated Fed. R. Civ. P. 11 by persisting in a claim to decedent’s $350,000 Individual Retirement Account, the proceeds of which he deposited into a separate account after the parties divorced.

UBS Financial Services Inc. v. Childress (VLW 013-3-548) (10 pp.)

Discovery Ordered in Coal Commission Case

In discovery rulings in plaintiff’s suit for an $8.6 million commission for services as a “coal consultant” in connection with defendant’s acquisition of Trinity Coal Company, a Big Stone Gap U.S. District Magistrate Judge says plaintiff is entitled to depose two of defendant’s alleged dealmakers in New York or Virginia, defendant must pay plaintiff’s attorney’s fees and costs as a sanction for failure to comply with discovery orders and plaintiff is entitled to materials that were part of a corporate deponent’s application for graduate business school at Stanford University.

Maggard v. Essar Global Ltd. (VLW 013-3-623) (16 pp.)

Patent Plaintiff Sanctioned for Late Production

Plaintiffs in a years-long patent dispute who produced over 7,000 additional documents three months before trial face strict limitations on what they can use at trial, and a magistrate judge recommends that the Norfolk U.S. District Court tell the jury – before and after testimony of each of the plaintiff company’s inventors, investors, officers, directors and employees – that the company engaged in discovery abuses that hinder defendants’ ability to cross-examine witnesses.

Digital Vending Services Int’l Inc. v. The University of Phoenix Inc. (VLW 013-3-507) (21 pp.)

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CIVIL RIGHTS

Officer Faces Claims for False Arrest, Fake Evidence

A Richmond U.S. District Court says a plaintiff who spent nearly a year in jail prior to his acquittal of attempted murder charges based on a former girlfriend’s accusations may sue a Colonial Beach police lieutenant on claims of false arrest, malicious prosecution, fabrication of evidence and conspiracy to fabricate evidence; however, the court dismisses the claims against the town and its police chief.

Willis v. Blevins (VLW 013-3-434) (33 pp.)

Qualified Immunity for Social Worker in Abuse Case

A defendant social worker who allegedly deliberately violated a court order and assisted in coercing a false allegation of sexual abuse from plaintiff’s then-four-year-old daughter to support visitation restrictions, does not have absolutely immunity against a substantive due process violation, but she has qualified immunity, the Charlottesville U.S. District Court says; although the alleged conduct rose to a substantive due process violation of plaintiff’s parental rights, a liberty interest in such rights was not clearly established at the time.

Nelson v. Green (VLW 013-3-412) (35 pp.)

Officers Could Arrest Woman on Traffic Charge

A woman who crashed her 1995 Mercedes sedan into a closed HOV gate off I-395 in Arlington and who alleges violation of her civil rights in her arrest after she refused to sign summonses issued for reckless driving and driving without her driver’s license, has her suit against two officers dismissed by the Alexandria U.S. District Court.

Ferrer v. Garasimowicz (VLW 013-3-495) (13 pp.)

Customer Alleges Dressing-Room Assault

A customer who alleges defendant store employees saw an apparently intoxicated man enter their store and were fearful for store patrons, but did nothing to prevent the man from entering a dressing room and sexually assaulting plaintiff, has not stated a negligence claim against the store, but the Roanoke U.S. District Court grants leave to amend her complaint.

Blackwell v. Abercrombie & Fitch Stores Inc. (VLW 013-3-616) (4 pp.)

Lawyer Fee Reduced for ‘Paltry’ Jury Award

The 4th Circuit reduces an attorney’s fee award of $322,340.50 to a flat fee of $100,000, in this suit in which the plaintiff won a jury award of $2,943.60 for her claim that defendant deputy sheriff violated her Fourth Amendment rights by arresting her without probable cause to believe the plaintiff had violated a Virginia statute requiring disclosure of the location of a dog who bit plaintiff.

McAfee v. Boczar (VLW 013-2-233) (31 pp.)

Deputy Wins $1.1M for Free Speech Violation

The 4th Circuit upholds a $1.1 million jury award to a deputy sheriff who was fired in retaliation for reporting to state and local officials and the news media that superior officers threatened and then terminated the deputy for his refusal to change his internal reports about his use of pepper spray and physical force to subdue a fleeing motorcyclist, which his superiors feared might lead to a lawsuit against the sheriff’s office.

Durham v. Jones (VLW 013-2-227) (28 pp.)

Camera Ban at Murder Sentencing Upheld

A trial judge had “sole” discretion to decide whether to allow cameras at defendant’s sentencing for the murder of his former girlfriend, and because the judge rejected cameras from the outset, statutory guidelines requiring a showing of “good cause” to modify that decision did not come into play; the Supreme Court of Virginia affirms the decision not to allow cameras at the sentencing hearing.

Virginia Broadcasting Corp. v. Commonwealth (VLW 013-6-076) (19 pp.)

License Holder Waived Personalized Plate Claim

A Chesapeake Circuit Court upholds the Department of Motor Vehicles’ license revocation, on remand, of appellant’s personalized license plate displaying the text “ICUHAJI”; although the license holder argues his direct appeal from DMV’s second revocation of the license plate is a continuation of his earlier case, the court cannot hear this matter on the merits because he did not exhaust his administrative remedies after the second revocation decision.

Bujno v. Commonwealth of Va., DMV (VLW 013-8-127) (10 pp.)

No Police Immunity in Excessive Force Claim

Two deputy sheriffs who shot plaintiff five or six times as he appeared on his porch with a shotgun pointed down to investigate sounds around his home, are not entitled to summary judgment on the basis of qualified immunity from plaintiff’s excessive force claim under 42 U.S.C. § 1983.

Cooper v. Sheehan (VLW 013-2-206) (19 pp.)

Student Can’t Challenge Contact Restriction

A 19-year-old plaintiff who began a sexual relationship with his English teacher when he was 15 years old is not entitled to a preliminary injunction in his suit to overturn a condition of her probation prohibiting her contact with him; the Alexandria U.S. District Court says plaintiff has not shown a likelihood of success on the merits.

Zargarpur v. Townsend (VLW 013-3-493) (7 pp.)

Qualified Immunity Holds for Inmate Assault

A correctional officer who allegedly assaulted a restrained inmate as he changed cells has qualified immunity from the inmate’s suit alleging excessive force, the 4th Circuit says; although the law changed in 2010, the governing standard for an excessive force claim in 2007 applies and medical records showed no more than a de minimis injury to plaintiff.

Hill v. Crum (VLW 013-2-171) (39 pp.)

Local Police Can’t Detain on Civil ICE Warrant

Local law enforcement officers can’t detain individuals solely based on civil immigration violations, but that rule wasn’t clearly established law when defendant deputies arrested a Salvadoran dishwasher outside her workplace; the 4th Circuit says the deputies have immunity from her Fourth Amendment claim.

Santos v. Frederick County Board of Comm’r (VLW 013-2-169) (38 pp.)

Defense Counsel May Have Misled Jury

An Abingdon U.S. District Court grants plaintiff a new trial on damages in his successful suit alleging a police investigator violated the civil rights of plaintiff, who as a political candidate for local office was accused of making unauthorized use of a bulldozer, because defense counsel likely led the jury to believe the officer would have to personally pay any judgment.

Adkins v. McClanahan (VLW 013-3-480) (10 pp.)

Facebook ‘Like’ is Protected, But Sheriff Has Immunity
“Liking” a political candidate’s Facebook page is the “Internet equivalent” of a political yard sign and is protected speech, and the 4th Circuit reverses a trial court’s contrary holding and says three sheriff’s deputies who allegedly were fired as jailers for political reasons could try their  claims; however, the sheriff has qualified immunity because in 2009, a reasonable sheriff could have believed he was allowed to fire any deputy for political reasons.

Bland v. Roberts (VLW 013-2-181) (80 pp.)

No Qualified Immunity for Repeated Taser Use

A police officer who repeatedly used a taser on a man after he stopped resisting arrest does not have qualified immunity in this civil rights suit filed by the estate of the man, who died after the incident; the 4th Circuit upholds qualified immunity for two officers who entered the Baltimore County home, but reverses the district court’s decision finding the third officer had qualified immunity.

Meyers v. Baltimore County, Md. (VLW 013-2-026) (19 pp.)

Suit Advances for Synthetic Marijuana Arrest

The owner of Custom Blends Tobacco Store in Hanover County can try his civil rights claim against an investigator for the local sheriff’s office who obtained arrest warrants, without probable cause, to charge the owner with conspiracy and distribution of synthetic cannabinoids in violation of Va. Code § 18.2-248.1:1(C); the Richmond U.S. District Court denies the investigator’s summary judgment motion asserting a qualified immunity defense.

Rogers v. Stem (VLW 013-3-332) (22 pp.)

No Free-Speech Claim from City Flag Law

Although a Virginia city previously allowed certain private speakers, including a university and a social fraternity, to temporarily use city-owned flag standards, the city did not violate the free speech rights of plaintiff Sons of Confederate Veterans by enacting an ordinance closing the city flag standards to all groups, including the SCV’s proposed use of the standards to fly the Confederate flag during a parade to honor two Confederate generals; the 4th Circuit upholds the city ordinance.

Sons of Confederate Veterans, Virginia Division v. City of Lexington (VLW 013-2-146) (19 pp.)

ACA Employer Mandate Upheld on Remand

On remand from the U.S. Supreme Court, the 4th Circuit says the Anti-Injunction Act does not bar a pre-enforcement challenge to the employer and individual mandates of the Patient Protection and Affordable Care Act, plaintiffs have standing to challenge the mandates, Congress acted within the scope of its constitutionally delegated powers when it enacted the employer mandate and neither mandate violates plaintiffs’ First Amendment protections.

Liberty University Inc. v. Lew (VLW 013-2-149) (62 pp.)

Conditions for Autistic Tenant Showed Bias

A landlord violated the Fair Housing Act’s disability discrimination provisions when he required a prospective tenant who cared for her adult brother, who suffered from mental retardation and severe autism, to obtain renter’s insurance for $1 million, provide a doctor’s statement that the brother did not pose a liability threat, and assume responsibility for any property damage; the 4th Circuit grants enforcement of an order for payment of a civil monetary penalty and damages for the prospective tenant’s emotional distress.

Corey v. Sec’y, Dep’t of Housing and Urban Development (VLW 013-2-145) (14 pp.)

Prisoner’s Childbirth Restraints Upheld

Jail officials had qualified immunity in a suit by a female prisoner – in jail for forgery – alleging she was held in restraints during her transport, labor and delivery at a hospital.

Fain v. Rappahannock Regional Jail (VLW 013-3-314) (12 pp.)

Plaintiff Can Sue for Website ‘Chilling Effect’

A plaintiff who operated a “Diabetes Warrior” website advising on the “Paleolithic” diet for diabetics can sue on a First Amendment claim after a state agency that licenses dieticians sent him a “red-pen” review of “areas of concern” that could be construed as the unlicensed practice of dietetics; the 4th Circuit says the district court erred in holding that plaintiff did not have standing to sue.

Cooksey v. Futrell (VLW 013-2-138) (31 pp.)

No Aid for Private-School Student with ADHD

Although a student with ADHD qualifies for help under § 504 of the Rehabilitation Act of 1973, the Baltimore city school system does not have to extend that assistance to the student because he is enrolled in a private school, not a public school; the 4th Circuit affirms judgment for the school system.

D.L. v. Baltimore City Board of School Comm’rs (VLW 013-2-012) (13 pp.)

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COMMERCIAL

Bank Has Tort Claims Against Guarantor

An Abingdon U.S. District Court says a bank may sue a loan guarantor for tortious interference with contract and statutory conspiracy under Virginia law, based on a claim that the guarantor intentionally caused the borrower – a Bristol shopping center –  to breach the terms of its loan agreement and to enter into an unauthorized settlement related to closing the shopping center’s anchor tenant.

Kamin v. U.S. Bank Nat’l Ass’n as Trustee (VLW 013-3-631) (11 pp.)

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CONSTITUTIONAL

Homeowner’s ‘Screwed’ Sign Struck

A resident of Cary, N.C., loses his constitutional challenge to a local sign ordinance, cited by the town to demand removal of a sign painted on the resident’s house saying “Screwed by the Town of Cary”; the 4th Circuit reverses the district court and says the Cary sign ordinance is content neutral and passes constitutional scrutiny.

Brown v. Town of Cary (VLW 013-2-016) (21 pp.)

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CONSUMER PROTECTION

Loan Servicer Contacts Violated FDCPA

A loan servicing company that continued to contact a borrower seeking payment of a loan and refused to contact her lawyer, although she had settled her case, violated the Fair Debt Collection Practices Act and the Charlottesville U.S. District Court grants summary judgment to the borrower and will hear evidence on her damages.

Yarney v. Ocwen Loan Servicing LLC (VLW 013-3-125) (17 pp.)

Plaintiff’s ‘Willful’ FCRA Charge Survives

Defendant credit reporting agency cannot escape liability for a “willful” violation of the Fair Credit Reporting Act for its failure to identify one of three sources of information for its erroneous reporting of a debt that affected plaintiff’s government security clearance; the Richmond U.S. District Court denies defendant’s motion for partial summary judgment.

Dreher v. Experian Information Solutions Inc. (VLW 013-3-271) (15 pp.)

Job Applicant States Fair Credit Claims

A freight company must defend a Fair Credit Reporting Act suit filed by an online job applicant who says he was rejected because of an alleged discrepancy between his application and a credit report, in dates of service for prior employment; the Richmond U.S. District Court rejects dismissal of the job applicant’s claim that defendant failed to provide notice a credit report could be pulled and failed to provide a summary of his FCRA rights.

Boyd v. CEVA Freight LLC (VLW 013-3-626) (13 pp.)

Arbitration Ban Does Not Cover Furniture Lease

A family who alleges their home was infested with bed bugs from a bed rented from defendant company is required to arbitrate their breach of warranty claim under the Magnuson-Moss Warranty Act; although the district court erred in holding that the federal regulations cited by plaintiffs do not contain any ban on binding arbitration in consumer warranty disputes, the 4th Circuit says the FTC ban on binding arbitration does not apply to plaintiffs’ contract, which was a lease, not a sale.

Seney v. Rent-A-Center Inc. (VLW 013-2-229) (15 pp.)

FDCPA Claim Sticks to Foreclosure Operation

Plaintiffs who lost their homes to foreclosure have stated a class count for FDCPA violations because defendants’ debt collection communications, viewed collectively, could plausibly mislead the least sophisticated consumer and affect his ability to make intelligent decisions with respect to the debt, says a Richmond U.S. District Court.

Goodrow v. Friedman & MacFadyen PA (VLW 013-3-367) (48 pp.)

Lack of Job Offer Not FCRA Violation

A defendant government contractor for the Defense Intelligence Agency wins summary judgment in this suit filed by an applicant for a job as a DIA linguist who alleges the contractor violated the Fair Credit Reporting Act when it did not hire him after he failed to provide a letter indicating his mortgage account was in good standing after a reported delinquency.

Javid v. SOS Int’l Inc. (VLW 013-3-274) (12 pp.)

Odometer Claim Not Time-Barred, Court Says

A plaintiff who discovered during a 2011 trade-in that the 2003 Dodge Ram pickup truck he bought in 2010 had a phony odometer reading, can sue Bay Auto, the dealer who sold him the truck, and Autos by Choice, who sold the truck to Bay Auto, for violation of the federal Odometer Act, common law fraud and violation of the Virginia Consumer Protection Act; plaintiff’s Odometer Act claim is not time-barred, the Norfolk U.S. District Court says on a question of first impression.

Alexander v. Southeastern Wholesale Corp. (VLW 013-3-539) (22 pp.)

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CONTRACT

Former Tech CEO Keeps $5.3M Award

The Supreme Court of Virginia upholds a $5.3 million jury award to the former CEO of a technology firm on his claims for breach of contract and unjust enrichment after he was moved aside when a major shareholder sought greater control of the board of directors; the trial court did not err in admitting expert testimony on plaintiff’s damages or in allowing post-verdict amendment of the CEO’s claim for $2.1 million in attorney’s fees.

Online Resources Corp. v. Lawlor (VLW 013-6-006) (38 pp.)

Marketing Firm Not FINRA ‘Customer’

A company that valued and marketed certain bond funds purchased by plaintiff investors through a brokerage firm is not subject to FINRA arbitration proceedings, the 4th Circuit says, because the investors were not “customers” of the marketing company under the controlling FINRA rule; the district court order enjoining arbitration is affirmed.

Morgan Keegan & Co. v. Silverman (VLW 013-2-030) (11 pp.)

Economic Loss Rule No Bar to Fraud Claim

In this dispute over defendants’ follow-through on multi-million dollar contracts to buy plaintiff’s coal, a Roanoke U.S. District Court says plaintiff’s claim for fraudulent inducement is not barred by the economic loss rule, and plaintiff may sue both defendant company and its owner.

Southern Coal Sales Corp. v. Xcoal Energy & Resources (VLW 013-3-042) (13 pp.)

Email Arbitration Clause Enforceable Against Consumer

A Verizon customer who is suing over a $135 early-termination fee for his cancellation of his Internet service is subject to an arbitration clause embedded in an email, as the initial contract expressly stated that continued use of the service constituted consent to contract modifications; the Alexandria U.S. District Court also says Verizon’s Rule 68 offer of judgment does not moot plaintiff’s request for class certification to pursue a claim under the Virginia Consumer Protection Act.

Klein v. Verizon Communications Inc. (VLW 013-3-059) (23 pp.)

Carrier Wins Fees for Email Spoliation

In this multi-million dollar contract case over insurance coverage for mortgage loan losses, a Richmond U.S. District Court awarding attorney’s fees as a sanction for spoliation of evidence says out-of-town lawyers will not get an hourly fee higher than that claimed by Richmond-based lawyers working on the matter, the claimed hours will be reduced by 20 percent because of block billing and defective time-keeping and there was no need to bring in a team of consultants from Chicago to produce graphics to show in the Richmond courtroom; the judge turns down the petition for $3,848,879 in attorney’s fees and asks defendant to submit an amended fee petition.

SunTrust Mortgage Inc. v. AIG United Guaranty Corp. (VLW 013-3-114) (39 pp.)

Banking Practices ‘Bad Faith’ Claim Survives

Plaintiff company, who is suing defendant bank for refusing to honor a Debt Settlement Agreement settling $9 million in debts for $3 million, may sue for breach of the implied duty of good faith and fair dealing by acting in bad faith and against usual and prudent business and banking practices in determining that plaintiff’s financial statement contained a misrepresentation or omission which omitted a tenancy-by-the-entirety property; the Norfolk U.S. District denies the bank’s motion to dismiss.

Stoney Glen LLC v. Southern Bank & Trust Co. (VLW 013-3-223) (13 pp.)

Dismissal Reversed for Employer’s Noncompete Claim

A government contractor gets another chance to enforce a noncompete agreement against a salesman who allegedly left to work for a competitor, as the Supreme Court of Virginia reverses the trial court’s dismissal of the employer’s suit on a demurrer filed by the former employee.

Assurance Data Inc. v. Malyevac (VLW 013-6-059) (11 pp.)

Nursing Home Lessor Wins $2.7M for Breach of Lease

In this litigation involving a nursing home lease, assignment of the lease and nonpayment of rent, the Lynchburg U.S. District Court says plaintiff lessor may recover $2.74 million in damages for defendant’s breach of the lease and abandonment of the facility in question.

Elderberry of Weber City LLC v. Living Centers – Southeast Inc. (VLW 013-3-456) (36 pp.)

Arbitration Request Came Too Late

The seller of a warehouse full of seasonal and sports-branded merchandise who waited until six weeks before the trial date to invoke contract remedies including arbitration has waived his right to arbitrate a dispute over the merchantability of the inventory, and the Richmond U.S. District Court denies the seller’s motion for summary judgment and grants summary judgment to the buyer on liability for breach of contract.

Evergreen Sports LLC v. SC Christmas Inc. (VLW 013-3-504) (13 pp.)

Malpractice Suit Against Bankruptcy Lawyer Dismissed

A former client’s legal malpractice action against his bankruptcy lawyer is time-barred because the alleged act – persuading the client to sell his home to the lawyer, who later sold it at a profit – occurred after termination of the representation on July 7, 2005, and the Fauquier County Circuit Court dismisses the suit.

Bailey v. Donovan (VLW 013-8-056) (3 pp.)

Suit Over Telephone Number Advances

A federal court says Virginia law is unclear and federal courts are split on whether an individual or entity may own a specific telephone number and the court refuses to dismiss a car dealer’s suit.

Southeastern Wholesale Corp. v. Cox Communications Hampton Roads LLC (VLW 013-3-251) (21 pp.)

Remittitur Ordered for FCA Damages

A Charlottesville U.S. District Court says a post-doctoral fellow at U.Va.’s Department of Psychiatry & Neurobehavioral Sciences who sued under the False Claims Act and won a jury award of $159,915 in lost wages and $500,000 in compensatory damages, must accept a remittitur of the damage award to $100,000, or agree to a new trial.

Huang v. The Rector & Visitors of the University of Virginia (VLW 013-3-111) (25 pp.)

Investors Not ‘Customers’ for FINRA Arbitration

Investors who purchased allegedly fraudulent securities directly from a business on the recommendation of a lawyer who was working with a broker for a financial services company were not “customers” of the company entitled to FINRA arbitration; the 4th Circuit says that to compel arbitration in this case, in which the investors did not buy from the financial services company, would expand the scope of the arbitration agreement beyond what the text permits and the parties intended.

Raymond James Financial Services Inc. v. Cary (VLW 013-2-050) (12 pp.)

Owner Owes Architect for Home Design

Although plaintiff architectural firm went through four phases of design and development work but could not meet defendant owner’s demand that their mountain-view home be built for a cost of under $700,000, the contract is severable and plaintiff is owed $24,638.18 plus interest compensation, says a Richmond Circuit Court.

Charles Aquino Architect PC v. Hill (VLW 013-8-086) (4 pp.)

‘Public Disclosure’ No Bar to FCA Claims

An employee of a government contractor states a claim under the False Claims Act with allegations that defendant contractor knew that at the Ar Ramadi and Al Asad camps in Iraq, contractor personnel were billing for, but not actually engaged in any water purification duties in support of the government contract; although there were public disclosures of the alleged fraud, the Alexandria U.S. District Court says plaintiff’s claims derive from his own independent knowledge.

U.S. ex rel. Benjamin Carter v. Halliburton Co. (VLW 013-3-470) (31 pp.)

Court Can Sever Arbitrator Designation

The owner of an automotive business who required his full-time, live-in housekeeper to sign an arbitration agreement can compel arbitration of the housekeeper’s legal claims, even though the designated arbitrator is unavailable; the Virginia Supreme Court says trial court erred in holding that the designation of a specific arbitrator was an integral part of the agreement, which became unenforceable when the designated arbitrator was unavailable.

Schuiling v. Harris (VLW 013-6-063) (12 pp.)

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CORPORATE

Shareholders Claim Directors Missed ‘Red Flags’

In this shareholder derivative action against Capital One officers and directors alleging inadequate oversight of a third-party call center’s marketing of add-on products, the Alexandria U.S. District Court dismisses claims for corporate waste and unjust enrichment, but says plaintiffs have stated a claim of breach of the fiduciary duty of loyalty against defendant directors because they have identified “red flags” in the company’s annual report.

In re: Capital One Derivative Shareholder Litigation (VLW 013-3-315) (37 pp.)

Court Sets Test for Prior ‘Written Demand’

Looking to case law on a similar corporate statute in North Carolina, a Norfolk Circuit Court sets a multi-part test for a minority shareholder’s “written demands” to a corporation required before filing a derivative action, and finds plaintiff met the test for all his claims except his claim that defendants usurped corporate opportunities by developing a tapas restaurant in Portsmouth.

Williams v. Stevens (VLW 013-8-052) (8 pp.)

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CREDITOR’S RIGHTS

Wife Waived ECOA Claim After Default

Although defendant bank may well have violated the Equal Credit Opportunity Act by requiring plaintiff wife to sign as an unlimited guarantor without first determining that her husband was not creditworthy, wife waived her ECOA claim when she executed loan restructuring agreements that expressly waived “any and all” claims against the bank; the 4th Circuit affirms dismissal of wife’s ECOA claims.

Ballard v. Bank of America NA (VLW 013-2-198) (16 pp.)

Veterans, Unemployment Benefits Exempt from Creditor

A Richmond Circuit Court dismisses a judgment creditor’s garnishment action against a debtor who has properly claimed exemptions in veteran’s benefits and unemployment benefits.

Keeton v. Burke (VLW 013-8-151) (2 pp.)

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CRIMINAL

Expungement OK for Marijuana Charge Amended to ‘Reckless’

A woman may petition for expungement of a marijuana possession charge because that charge was “otherwise dismissed” under Va. Code § 19.2-392.2(A)(2) when the commonwealth amended the charge to reckless driving, and the Supreme Court of Virginia reverses and remands for an order of expungement under Code § 19.2-392.2(F).

Dressner v. Commonwealth (VLW 013-6-008) (14 pp.)

No Mandamus for Deferred Sentence

A chief deputy commonwealth’s attorney had standing to petition for mandamus to require a general district court judge to sentence a defendant who pleaded guilty to DUI within 21 days after its order, but the circuit court did not err in denying mandamus, the Virginia Supreme Court says.

Hon. Thomas J. Kelley Jr. v. Stamos (VLW 013-6-010) (25 pp.)

ID Testimony Was Plain Error, But Conviction Upheld

Although it was plain error for the trial court to allow the prosecutor’s suggestive line of questioning by asking a bank teller to identify similarities between the defendant and the person who robbed the bank 17 months earlier, the 4th Circuit affirms defendant’s bank robbery conviction because there was sufficient independent evidence to support his conviction.

U.S. v. Greene (VLW 013-2-003) (25 pp.)

Later Bad Act Comes In at Sentencing

At defendant’s sentencing on cocaine possession and driving after being declared a habitual offender, the court did not err in considering evidence of defendant’s participation in a cocaine sale three months after his guilty plea and prior to sentencing; the Court of Appeals says an officer’s testimony, including evidence from an informant, was sufficiently reliable under the applicable due process standard.

Blunt v. Commonwealth (VLW 013-7-118) (12 pp.)

‘Automobile’ Exception, Not Gant, Covers Search

A defendant convicted of drug and firearms offenses based on evidence discovered during a traffic stop is not entitled to post-conviction relief on his claim that his lawyer was constitutionally ineffective in failing to challenge the constitutionality of the search of the passenger compartment; the 4th Circuit says defendant does not have a claim based on Arizona v. Gant.

U.S. v. Baker (VLW 013-2-124) (19 pp.)

Victim’s View Supports ‘Firearm’ Conviction

Although no firearm was recovered from defendant, he could be convicted as a felon in possession of a weapon based on the testimony of the teenage carjacking victim who described how defendant pointed a small silver pistol at his head and told him to get out of the truck; the Supreme Court of Virginia affirms the conviction, but three dissenting justices say it is “almost impossible” for an observer to look at an object and know it meets the legal definition for conviction.

Jordan v. Commonwealth (VLW 013-6-067) (14 pp.)

Witness-Tampering Instruction Was ‘Harmless Error’

Although a jury instruction at defendant’s trial for witness tampering misstated the federal nexus required for the offense under a 2011 U.S. Supreme Court decision, the jury instruction was “harmless error” and the 4th Circuit rejects defendant’s 28 U.S.C. § 2255 motion for post-conviction relief.

U.S. v. Smith (VLW 013-2-164) (19 pp.)

Resisting Arrest is Sentencing ‘Crime of Violence’

In sentencing defendant on a conviction for illegal reentry into the U.S., a district court did not err in treating a prior conviction for resisting arrest as a “crime of violence” under federal sentencing guidelines; adopting the categorical approach to characterize the offense, the 4th Circuit affirms the district court’s 36-month sentence for defendant.

U.S. v. Aparicio-Soria (VLW 013-2-143) (49 pp.)

At-Will Searches OK as Probation Condition

A circuit court can impose at-will searches as a probation condition for a man convicted of the aggravated sexual battery and rape of his stepdaughter between the ages of five and 13; the Court of Appeals says defendant failed to argue the constitutionality of the condition in the trial court and only argued the condition was unreasonable, which it is not.

Murry v. Commonwealth (VLW 013-7-183) (9 pp.)

Expert ‘Side-Switching’ on Insanity Allowed

The “side-switching” doctrine does not bar a court-appointed psychologist who initially said defendant was insane at the time he abducted his family at gunpoint, from revising her findings and later testifying for the prosecution; the Court of Appeals affirms defendant’s conviction of abduction and use of a firearm.

Chappelle v. Commonwealth (VLW 013-7-227) (9 pp.)

New DNA Testing But No New Trial

Although the Fairfax Circuit Court granted defendant’s motion for new DNA testing by methods not available when he was convicted of abduction, rape and sodomy in 2002, the absence of DNA evidence on a knife allegedly used in the offense does not mean defendant is entitled to a new trial; the court says Va. Code § 19.2-327.1 provides no relief if, as in this case, the results of new testing are potentially helpful to defendant but do not tend to prove his actual innocence.

Commonwealth v. Hasan (013-8-090) (7 pp.)

Petition Too Late for Concealed Weapon Permit

A petitioner previously convicted of four felonies in New York State has completed all necessary steps to receive a concealed weapons permit, but his appeal from denial of the permit is denied solely for the reason that the appeal is untimely; the Fairfax Circuit Court says petitioner is free to attempt to purchase another weapon should he be so inclined.

Rodriguez v. Dep’t of State Police (VLW 013-8-088) (5 pp.)

Text Messages Admitted in Murder Trial

A printout of cell phone text messages was admissible at defendant’s murder trial, under the common law rules of evidence in place at the time of defendant’s murder trial, and the trial court did not err in admitting the text messages over defendant’s “best evidence” objection, the Court of Appeals says.

Cobb v. Commonwealth (VLW 013-7-277(UP)) (14 pp.)

Ammunition Conviction Sticks, But Not ACCA Sentence

Although defendant said the ammunition in his antique gun did not make him a felon illegally possessing ammunition, he presented no evidence to support his affirmative defense; however, the 4th Circuit vacates his sentence because his Maryland conviction of second-degree assault did not qualify for a sentence under the Armed Career Criminal Act.

U.S. v. Royal (VLW 013-2-184) (20 pp.)

Habeas Relief Granted in Sodomy Case

A petitioner found guilty of attempted sodomy in 2012 is entitled to habeas corpus relief, as the statute under which he was convicted, Va. Code § 18.2-361, has been declared void under MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013).

Vann v. Pixley (VLW 013-8-125) (3 pp.)

Miranda Warnings Too Late in Home Search

The 4th Circuit reverses defendant’s child pornography conviction because police did not give the 19-year-old community college student his Miranda rights until two hours into a three-hour custodial interrogation in the basement of his home, which had been entered by 15 to 30 armed state and federal agents.

U.S. v . Hashime (VLW 013-2-196) (23 pp.)

Defendant Not ‘Unavailable’ After Refusal to Testify

A defendant who invoked his Fifth Amendment right not to testify was not “unavailable” at his robbery trial, and the trial court erred in holding that defendant, as a hearsay declarant, was unavailable for purposes of applying the declaration-against-penal-interest exception to the hearsay rule; however, because the trial court excluded the hearsay evidence on other grounds, the Court of Appeals affirms defendant’s convictions of malicious wounding, robbery and related offenses.

Bailey v. Commonwealth (VLW 013-7-293) (10 pp.)

No Collateral Estoppel in Canine-Killing Case

Although two defendants were acquitted of misdemeanor charges related to the alleged shooting of dogs who were killing turkeys, a Dickenson County Circuit Court rejects defendants’ argument that their related felony prosecution is barred by collateral estoppel.

Commonwealth v. Hill (VLW 013-8-121) (6 pp.)

No Reversal from Judge’s Comments

A trial judge committed plain error with his “ill-advised” remarks to the jury about defendant’s criminal history after the jury delivered a verdict but before jurors had been polled, but defendant’s gun and drug convictions are affirmed based on overwhelming evidence; the 4th Circuit also joins its sister circuits in holding that a defendant who fails to move for a “speedy indictment” dismissal prior to trial waives that right.

U.S. v. Cherry (VLW 013-2-125) (19 pp.)

Lawyer Pleads Fifth, Motion in Limine Denied

In this prosecution of a former notary public and court reporter for his alleged role in recording false statements to assist a lawyer under investigation for drug distribution, the Abingdon U.S. District Court denies defendant court reporter’s motion in limine asking the court to find a way for defendant to introduce an alleged exculpatory statement by the lawyer, who says he will invoke his Fifth Amendment right and refuse to testify at defendant’s trial.

U.S. v. Benko (VLW 013-3-284) (22 pp.)

Signing Admissible on Sex Crimes

Defendant is not entitled to reversal of his bench trial convictions for sex crimes by attacking the competency of his nine-year-old deaf-mute victim, the Court of Appeals says; the trial court took care to establish victim’s competency and the record evidence supports his convictions; no adverse inference is due when defendant’s objection caused exclusion of the certificate of DNA analysis.

Bynum v. Commonwealth (VLW 013-7-162(UP)) (14 pp.)

Forced Peremptory Strikes Were Error

The Court of Appeals reverses and remands defendant’s jury trial conviction for sexual battery:  trial court erred in denying defense requests to strike two teachers for cause, requiring use of peremptory strikes; both women expressed concerns but the trial court cut off questioning that might have eliminated doubt as to their impartiality.

Webber v. Commonwealth (VLW 013-7-161(UP)) (10 pp.)

Amendment Allowed for Timely Appeals Petition

The en banc Court of Appeals says a petitioner may amend his timely filed petition for appeal to state an assignment of error that complies with court rules, and the appellate court grants his petition; however, the court upholds his conviction on two counts of attempted capital murder of a law enforcement officer, based on evidence that defendant threatened to kill to investigators, had his hand near his knife and appeared to be “going for it.”

Whitt v. Commonwealth (VLW 013-7-087) (26 pp.)

No Sentence Change After DOC Transfer Error

Even though the trial court said defendant would have been entitled to some relief on his pending post-trial motion for a sentence modification, defendant’s mistaken transfer from the local jail to the Department of Corrections meant the trial court no longer had authority to modify the sentence; the Court of Appeals affirms denial of defendant’s post-trial motion.

Stokes v. Commonwealth (VLW 013-7-009) (13 pp.)

More Testing Needed for ‘Competency’ Decision

Because the clinical psychologist who initially found defendant competent to stand trial stated that his opinion might change if defendant had an appropriate neurological examination, including an EEG and CAT scan and/or MRI, a Hanover Circuit Court orders the additional testing for defendant, under the authority of Ake v. Oklahoma and Virginia law.

Commonwealth v. Mallory (VLW 013-8-005) (6 pp.)

Stalker Convicted of Computer Harassment

A defendant who repeatedly stalked and threatened a young woman for years, starting when she was 17 years old, has his conviction for computer harassment in violation of Va. Code § 18.2-152.7:1 affirmed by the Court of Appeals, along with revocation of his suspended sentence on a prior stalking conviction.

Moter v. Commonwealth (VLW 013-7-049) (10 pp.)

Liar Accusation Not Reversible Error

Although a prosecutor should not have told the jury defendant lied under oath, and the trial court failed to give a “character” jury instruction, the 4th Circuit upholds defendant’s conviction on tax fraud charges.

U.S. v. Woods (VLW 013-2-059) (20 pp.)

Other Bank Robberies’ Evidence Comes In

Although a demand for additional money, the use of threatening language and poor grammar in a demand note would seem to be common in bank robberies, the punctuation and spelling errors common to the three demand notes support allowing the prosecution to put on evidence of defendant’s convictions for bank robberies in Henrico and Richmond during his trial for bank robbery in Hanover Circuit Court.

Commonwealth v. Bagby (VLW 013-8-019) (10 pp.)

One Witness OK for Exhibit Jointly Produced

On rehearing en banc, the Court of Appeals affirms a defendant’s conviction of felony shoplifting based on the trial court’s admission of a list of items stolen from a Family Dollar Store, prepared by a cashier with the store manager’s help, on the testimony of the manager alone.

Robertson v. Commonwealth (VLW 013-7-077) (12 pp.)

New Trial Ordered in Carjacking Case

In a carjacking prosecution that turned on identification of defendant as the dreadlocked offender who stole the victim’s car, the government’s error in misrepresenting the date on a photo of a different suspect without dreadlocks, who was seen driving the vehicle three days after the carjacking, means defendant is entitled to a new trial based on the new evidence; the 4th Circuit says the district court erred in rejecting defendant’s newly-discovered-evidence argument.

U.S. v. Moore (VLW 013-2-045) (16 pp.)

No Money Laundering Convictions Under ‘Merger Problem’

In this fraud case involving a scheme to sell life settlement investments, which resulted in nearly $100 million in losses for investors, the 4th Circuit interprets “proceeds” of the scheme as “net profits” and overturns defendant’s money laundering convictions; the court affirms defendant’s remaining fraud convictions, but vacates defendant’s sentence and remands for resentencing.

U.S. v. Abdulwahab (VLW 013-2-088) (24 pp.)

No Conditional Release for Drug Defendant

Although a 19-year-old defendant charged with dealing “spice” had a clean criminal record, the Newport News U.S. District Court denies release on conditions, as it considers him a flight risk and a danger to the community, based on his mother and sisters living in Egypt, large sums of cash found in his home and car and evidence that he knows how harmful the drug is but continued to distribute it.

U.S. v. Soliman (VLW 013-3-204) (6 pp.)

Defendant Expected Three to Five, Got 19 Years

A defendant’s claim that his lawyer told him he would get three to five years for pleading guilty to robbery, but who was sentenced to 19 years, was corroborated by his brother, mother, another defendant who overheard defendant’s bullpen conversation with his lawyer on the day defendant pled and a recorded phone conversation with his lawyer, but defendant has not shown that he has a reasonable defense to the robbery charge, and the Norfolk Circuit Court denies his motion to withdraw his guilty plea.

Commonwealth v. White (VLW 013-8-065) (7 pp.)

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DOMESTIC RELATIONS

Custody Change Back to Mom in Virginia

Although the court has great respect for the opinion of the guardian ad litem, who recommends that two boys, ages seven and five, remain in the custody of the father who moved them to Pennsylvania, the Roanoke County Circuit Court orders physical custody returned to the mother in Roanoke, as the court finds the father did not act in the children’s best interests in moving them to Pennsylvania, failing to comply with a court order requiring individual counseling for the children and quitting his job and misrepresenting the reasons for doing so.

Heffron v. Heffron (VLW 013-8-017) (14 pp.)

Husband’s Property Is Separate, Despite Pledge

In this divorce case, the use of husband’s separate property to secure loans used for marital purposes and repaid by marital funds does not transmute the pledged property into marital property, and the Court of Appeals reverses the trial court’s equitable distribution award based on this erroneous ruling.

Layman v. Layman (VLW 013-7-167) ( 7 pp.)

Stepchild’s Treatment an ED Consideration

Although husband provided minimal support to his stepdaughter who was age seven when the parties married, the trial court did not err in considering husband’s poor treatment of his stepdaughter as a negative non-monetary contribution and using that as one factor in deciding to award wife 55 percent of the marital estate, according to the Court of Appeals.

Crater v. Crater (VLW 013-7-173(UP)) (12 pp.)

Custodial Mom Could Take Child to U.S.

A mother with full custody under a Swiss order was not liable for wrongful removal under the Hague Convention for taking the child to the U.S. to visit family and seek medical treatment.

White v. White (VLW 013-2-105) (13 pp.)

Birth Parents’ Consent Required for Adoption

A Roanoke County Circuit Court says a notarized letter from a child’s birth mother, who is incarcerated until late 2014, is no substitute for the statutory requirement that a JDR court make findings that both birth parents consent to adoption of their daughter, who went to live with the petitioning couple when the mother went to prison for credit card and prescription fraud.

In re Emma Kay Pruett (VLW 013-8-091) (8 pp.)

Marriage with Late License is Void

Although a rabbi who performed a couple’s wedding ceremony received and signed their marriage license two weeks after the ceremony, their marriage is void, says a Fairfax Circuit Court.

MacDougall v. Levick (VLW 013-8-115) (20 pp.)

Sketch Decree Inconsistent with Post-Nup

A Roanoke County Circuit Court declines to enter a proposed divorce decree that is inconsistent with the parties’ post-nuptial agreement, with regard to child support; the proposed decree says the parties understand that support of the infant child is a right of the child and not of the parties and either party file petition for child support for the benefit of the child.

Whittaker v. Whittaker (VLW 013-8-016) (3 pp.)

Husband May Use Marital Funds Post-Separation

A husband who drew on marital funds instead of his post-separation salary for post-separation expenses need not reimburse the marital estate, the Court of Appeals holds, as his expenses were proper and did not constitute waste; he will pay $10,000 in monthly spousal support for four years, instead of $30,000 per month indefinitely, as wife requested.

Wright v. Wright (VLW 013-7-048) (31 pp.)

‘Donor’ Father May Assert Parental Rights

A man who fathered a child with his girlfriend through in vitro fertilization can assert his parental rights, despite a Virginia statute that declares that a sperm “donor” can only be recognized as the father of a child born through assisted conception if the father is married to the mother; the Virginia Supreme Court says the assisted conception statute must be read with another statute that sanctions establishing parentage through alternative means.

L.F., a Minor v. Breit (VLW 013-6-001) (27 pp.)

Doctor’s Agreement Not Unconscionable

The Court of Appeals reverses the circuit court’s refusal to enforce a separation agreement requiring physician to pay monthly spousal support wife of 65 percent of his income or at least $10,000; as a matter of law, the agreement is not unconscionable nor do the surrounding circumstances show undue influence.

Guirguis v. Salib (VLW 013-7-010(UP)) (16 pp.)

No Reduction in Husband’s Equity Payment

A Hanover Circuit Court may not modify a couple’s final divorce decree from 2008 in order to reduce the $40,000 sum for husband’s share of the equity upon sale of the home, which has declined in value since the date of the decree; the result may be harsh for the plaintiff, but the parties’ divorce decree is final under Rule 1:1.

Millner v. Millner (VLW 013-8-006) (9 pp.)

Complaint Stricken After Husband’s Appearance

Although wife tried to use a 2012 statute allowing divorce by deposition or affidavit in certain circumstances, husband, who was living in Saudi Arabia when served, entered a special appearance and moved to dismiss on the ground of bigamy, and the Court of Appeals affirms the trial court order striking wife’s divorce case.

Cruz v. Cruz (VLW 013-7-126) (6 pp.)

Wife’s Summary Contempt Conviction Reversed

A trial court erred in holding wife in summary contempt for her “vindictive” testimony describing her husband’s threats against her during a custody exchange, as the court’s finding that wife was untruthful depended on husband’s sound recording of the exchange and testimony from an observer arranged by husband; the en banc Court of Appeals further holds that a person held in summary contempt should be allowed to object immediately before or after the contempt finding.

Amos v. Commonwealth (VLW 013-7-103) (20 pp.)

Wife’s Partnership Interest is ED Award

Over husband’s objection, a Fauquier County Circuit Court can allow wife to satisfy an equitable distribution award by transferring to husband a 24 ½ percent interest in the family business, governed by the parties’ limited partnership agreement.

Linton v. Linton (VLW 013-8-123) (3 pp.)

No ED of Corporate Account Receivable

In construing a property settlement agreement that covered assets owned by the parties subject to equitable distribution, a trial court erred in granting wife an ED award from an account receivable owed to a corporation in which husband had a 50-percent interest; the Court of Appeals reverses the equitable distribution award to wife and the award of attorney’s fees.

Cabral v. Cabral (VLW 013-7-337) (11 pp.)

Custody Changed After Job Relocation

Although a necessary job transfer for her new husband constituted a material change in circumstances, a mother who wants to move her sons, ages 11 and 14, to Ohio has not shown the move would be in the children’s best interests and would not substantially impair their relationship with their father; the Roanoke City Circuit Court changes primary physical custody to father, with extended liberal visitation for the mother.

Lingsch v. Walker (VLW 013-8-131) (6 pp.

Wife Did Not ‘Cohabit’ with Boyfriend

Although wife had a key to her boyfriend’s condo and her own parking space, they limited the time they spent in each other’s homes, kept separate finances and did not keep clothing or receive mail at each other’s homes, and wife’s children stayed exclusively in wife’s home, and husband may not terminate his $6,000 monthly spousal support payments under the parties’ PSA prohibiting wife from cohabiting in a relationship analogous to marriage, the Court of Appeals says.

Kellogg v. Kellogg (VLW 013-7-322(UP)) (11 pp.)

No Maintenance Means Permissive ‘Waste’

A wife who made no repairs to a home the parties owned and which she has lived in during their 17-year separation is assessed $26,000 devaluation as permissive waste by a Roanoke County Circuit Court.

Bell v. Bell (VLW 013-8-010) (7 pp.)

Husband Takes Home Debt & Comp Settlement

A Richmond Circuit Court says wife has now shown that husband’s post-separation workers’ comp settlement marital property, but wife won’t share debt on the underwater home.

Massicot v. Massicot (VLW 013-8-031) (3 pp.)

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EMPLOYMENT

Driver Fired for False Records, Not FMLA Leave

Because defendant FedEx had evidence that plaintiff had falsified delivery records to gain time, it could terminate her employment as a delivery driver even though she claims she was terminated in violation of the Family & Medical Leave Act when she was not returned to her prior employment after a knee injury; the 4th Circuit says plaintiff has not shown the false records issue was a pretext for her discipline.

Laing v. Federal Express Corp. (VLW 013-2-007) (19 pp.)

City Worker Can Grieve Discipline, But Not Discharge

Although a former employee of a victim/witness program may grieve her discipline for violating office policy on rental car use, she may not grieve her dismissal, says a Norfolk Circuit Court.

Zarrelli v. City of Norfolk and Hon. Gregory D. Underwood (VLW 013-8-023) (7 pp.)

ERISA Benefits Cover Overdose ‘Accident’

A Richmond U.S. District Court says an ERISA plan administrator abused its discretion in denying accidental death benefits to the widower of a woman who died while under the care of her treating physician, as the plan administrator’s analysis of the claim does not employ a reasonable definition of the term “accident.”

Bryner v. E.I. DuPont deNemours & Co. (VLW 012-3-645) (17 pp.)

Ex-Employee Faces Business Tort Claims

In this litigation arising from a group of employees leaving plaintiff Alliance Technology Group LLC to join a competitor, Achieve 1 LLC, a Richmond U.S. District Court says Alliance has stated claims against one former employee for breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, misappropriation of trade secrets and tortious interference with contract expectancy and prospective business relationship; however, the court dismisses the claims for conversion, tortious interference with employment contract, common law and statutory business conspiracy and fraud.

Alliance Technology Group LLC v. Achieve 1 LLC (VLW 013-3-010) (22 pp.)

Employee Has Respondeat Superior Claim

A woman who was hired at age 18 to manage two Wireless Unlimited stores in Vienna, and who alleges the store owner’s 35-year-old friend, who was allowed to act as a store manager, openly threatened her with sexual assault, cursed at her, called her names and sexually assaulted her after taking her home from a late-night mandatory employee meeting and dinner, has stated claims for respondeat superior liability, sexual assault and battery, negligence or gross negligence for failure to warn, negligent retention, defamation and defamation per se and intentional infliction of emotional distress, says a Fairfax Circuit Court.

Magallon v. Wireless Unlimited Inc. (VLW 013-8-002) (12 pp.)

Female Sales Exec Wins $1.2M for Retaliation
A female sales executive with a strong track record at a waste management company wins $1.2 in a bench trial of her Title VII suit alleging she was terminated just weeks after complaining about a hostile environment and sexual advances by coworkers; the Alexandria U.S. District Court rejects plaintiff’s hostile environment claim and her claim of retaliation based on alleged travel restrictions and unfavorable stock options, but awards damages that include the $50,000 maximum in compensatory damages.
Taylor v. Republic Services Inc. (VLW 013-3-462) (60 pp.)

Tech Company Wins Costs of Suit

Plaintiff company wins attorney’s fees and costs of $342,819.55 under Virginia and federal computer crimes statutes, after winning a jury verdict against its former human resources director who sabotaged company computers and disclosed confidential information in violation of company policy; by recovering under the Virginia Computer Crimes Act, the company can recover the entire cost of litigation, says the Alexandria U.S. District Court.

Tech Systems Inc. v. Pyles (VLW 013-3-393) (13 pp.)

No AD&D Benefits for Drug Overdose Death

A widow cannot collect accidental death benefits after her husband, who had a history of anxiety, depression and substance abuse, voluntarily overdosed on Dilaudid and Xanax.

Koffman v. Unum Life Ins. Co. (VLW 013-3-325) (15 pp.)

Ex-Husband Can’t Keep ERISA Benefits

A man who waived his benefits under his ex-wife’s ERISA retirement and insurance plans in a divorce settlement cannot rely on the preemption doctrine for protection from a state court action by the ex-wife’s parents to enforce the divorce decree in which husband waived his rights; the 4th Circuit says ERISA does not preempt post-distribution suits against ERISA beneficiaries.
Andochick v. Byrd (VLW 013-2-051) (9 pp.)

Retiree Wins ‘Retroactive’ Pension Benefits

A retired AT&T employee wins her ERISA suit for recoupment of $121,563.90 in pension benefits due to an eight-year delay in receipt of her full pension benefits; the 4th Circuit says the district court properly considered limited evidence outside the administrative record but known to AT&T when it determined the employee’s eligibility for benefits, and correctly determined that AT&T breached its statutory and fiduciary duties to the employee.

Helton v. AT&T Inc. (VLW 013-2-052) (27 pp.)

No Job Analysis Is ERISA ‘Abuse of Discretion’

A 319-page administrative record that makes no mention of an ERISA claimant’s “actual duties” as a “documentation assistant” means defendant Anthem Life Insurance abused its discretion in denying plaintiff’s ERISA claim for long-term disability and the Roanoke U.S. District Court grants partial summary judgment to plaintiff and remands for a “deliberate and principled analysis” of claimant’s ability to do her job.

Wyant v. Anthem Life Ins. Co. (VLW 013-3-286) (5 pp.)

Employer’s Mistake Breached ERISA Duty

Although an employee who worked less than 30 hours per week was not eligible for life insurance as an employee benefit, the employer breached its ERISA fiduciary duty when it enrolled the employee and deducted premiums from his paycheck for the life insurance, and the employee’s widow wins summary judgment on her ERISA claim filed after the carrier denied benefits upon the employee’s death.

Lewis v. Kratos Defense & Security Solutions Inc. (VLW 013-3-293) (21 pp.)

Unpled Equal Pay Act Defenses Not Waived

An employer did not waive its affirmative defenses to a federal Equal Pay Act claim by not pleading them in its answer denying violation of the EPA, and the Supreme Court of Virginia reverses a trial court’s award of damages, attorney’s fees and costs on plaintiff’s EPA claim.

New Dimensions Inc. v. Tarquini (VLW 013-6-044) (12 pp.)

Pardoned Felon Can’t Sue for Teacher Job

A substitute teacher in a Fairfax County public school who failed to disclose on her 2008 job application a 2000 conviction of felony credit card fraud cannot sue for a declaratory judgment that she should not be barred from employment after restoration of her civil rights and a pardon from the governor; the Fairfax Circuit Court says plaintiff has failed to allege a justiciable controversy and it has no jurisdiction over her request for declaratory relief.

Flinn v. Fairfax County School Board (VLW 013-8-128) (9 pp.)

No FMLA Claim from ‘Flex’ Schedule Denial

A technology services company did not violate the Family and Medical Leave Act by requiring plaintiff IT consultant to work her reduced 20-hour schedule as a block of five mornings a week from 8:00 a.m. to 12:00 p.m., instead of the 20-hour “flex” schedule plaintiff preferred; the Alexandria U.S. District Court awards summary judgment to employer.

Ranade v. BT Americas Inc. (VLW 013-3-580) (9 pp.)

No Injunction on Accounting Noncompete

A Norfolk Circuit Court denies plaintiff employer’s motion for a preliminary injunction in this suit alleging violation of a noncompete agreement.

K&K of VA LLC v. Brinkley (VLW 013-8-104) (4 pp.)

Bank Loses Challenge to Pension Plan Payouts

A Big Stone Gap U.S. District Court says a Jonesville bank that terminated its defined benefit pension plan in favor of adopting a 401(k) plan for bank employees loses its challenge to the Pension Benefit Guaranty Corporation’s determination that the plan underpaid participants by calculating the lump sum termination benefits under an amendment to the plan adopted after the termination date.

Powell Valley National Bank v. Pension Benefit Guaranty Corp. (VLW 013-3-453) (11 pp.)

Business ‘Pipeline,’ Certification Process Are Trade Secrets

A government IT contractor may sue a former executive for trade secret misappropriation and breach of fiduciary duty for allegedly sharing with a competitor plaintiff contractor’s proprietary information for a customer support contract with the U.S. Postal Service, including lists of wages and billing rates, quality control plan, contract metrics, business development pipeline and documents used to obtain certification; the Alexandria U.S. District Court denies the employee’s motion to dismiss multiple counterclaims filed by employer.

Marsteller v. ECS Federal Inc. (VLW 013-3-447) (27 pp.)

Benefits Cut Off for ‘Self-Reported’ Migraines

A former trade association art director cannot overturn an ERISA plan administrator’s termination of her long-term disability benefits for migraine headaches; the Alexandria U.S. District Court says the decision to terminate benefits after 24 months was a “reasoned and principled decision” under plan language imposing limits for “self-reported” conditions that are not objectively verifiable.

Hilton v. UNUM Life Ins. Co. of America (VLW 013-3-426) (21 pp.)

SOX Front Pay Possible, But No Award

A Richmond U.S. District Courts says an award of front pay is authorized for a Sarbanes-Oxley retaliation claim, but an award would be speculative for this CFO whistleblower who won her retaliatory discharge claim.

Jones v. Southpeak Interactive Corp. of Delaware (VLW 013-3-601) (18 pp.)

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EMPLOYMENT DISCRIMINATION

Sales Rep Fired for Phony Sales-Call Logs

Although plaintiff, a female pharmaceutical sales representative, claims she was discharged in retaliation for her complaint of being bullied and intimidated by her male supervisor, company records show she was terminated for falsifying sales call records in violation of the company policy that only certain face-to-face interactions could be logged as sales calls, and the Newport News U.S. District Court grants summary judgment to employer in plaintiff’s Title VII suit.

Beal v. Lilly USA LLC (VLW 013-3-486) (20 pp.)

Plant Worker Says Supervisor Propositioned Him

A male employee at a ductwork factory may try his discrimination claim that a male supervisor sexually propositioned him in a patently offensive way, and the Roanoke U.S. District Court says plaintiff exhausted his claim with the EEOC even though his wife filed the administrative charge on his behalf.

Howard v. Semco Duct & Acoustical Products Inc. (VLW 013-3-427) (8 pp.)

Discount Store Managers May Replead Sex Bias Case

In this Title VII sex discrimination and equal pay action filed by a putative class of female managers of Family Dollar Stores, the 4th Circuit says a district court erred in refusing to allow plaintiffs to amend their complaint in the wake of the Supreme Court’s 2011 decision in Wal-Mart Stores Inc. v. Dukes.

Scott v. Family Dollar Stores Inc. (VLW 013-2-185) (74 pp.)

Age Bias Plaintiff Must Pay Costs

A dairy delivery driver who lost his age discrimination suit is ordered to pay defendant dairy $3,081.87 in costs; the Lynchburg U.S. District Court says plaintiff has failed to make a sufficient showing of hardship to justify a denial of costs.

Arthur v. Pet Dairy (VLW 013-3-630) (8 pp.)

Performance Issues, Not Bias, Led to Job Loss

A female loan officer who was hired by defendant at age 57 and terminated at age 67 after she repeatedly failed to make her “market share” quota for loan business loses her sex and age discrimination suit as the Alexandria U.S. District Court grants summary judgment to the employer.

DiQuollo v. Prosperity Mortgage Corp. (VLW 013-3-607) (26 pp.)

No ADA Claim for Manager’s Back Injury

A linen company manager’s job called for him to sometimes fill in for drivers on vacation or make special deliveries, and the company had a legitimate, non-discriminatory reason to terminate plaintiff after lifting restrictions from a back injury affected his ability to do his job; the Lynchburg U.S. District Court grants summary judgment to the employer in plaintiff’s suit under the Americans with Disabilities Act.

Ruggles v. Virginia Linen Service Inc. (VLW 013-3-439) (14 pp.)

Poor Performance Made Plaintiff RIF Target

A plaintiff who was 57 years old when terminated as media center operator for defendant Babcock & Wilcox’s Nuclear Operations Group, loses his suit alleging violation of the Age Discrimination in Employment Act, as B&W showed plaintiff was laid off because he was performing at a lower level than others in his peer group; the Lynchburg U.S. District Court grants summary judgment to B&W.

Ferrell v. Babcock & Wilcox Co. (VLW 013-3-421) (12 pp.)

School Employee May Try Sex Bias Claims

A school board loses its summary judgment motion in a female assistant superintendent’s suit alleging sexual harassment and retaliation by the school board after she reported harassment by the male superintendent, but the Big Stone Gap U.S. District Court grants summary judgment on plaintiff’s equal protection claim, as there is no evidence the individual school board members voted to hire the superintendent with the intent or purpose of discriminating against plaintiff or other female employees.

Johnson v. Scott County School Board (VLW 013-3-521) (16 pp.)

No Damages Allowed for ADA Retaliation Claim

A hospital radiology technologist who took periodic FMLA leave for her Crohn’s Disease, and  who alleges she was denied reasonable accommodations of working eight-hour, instead of 12-hour shifts, and being allowed to eat snacks periodically, is not entitled to a jury trial, or compensatory and punitive damages, but the Big Stone Gap U.S. District Court denies defendant hospital’s motion to dismiss her suit based on the 300-day time limit for filing a charge of discrimination with the EEOC.

Counts v. Norton Community Hospital (VLW 013-3-410) (5 pp.)

Employee With HIV Can Try ADA, FMLA Claims

A Charlottesville U.S. District Court says a café worker who was fired after he disclosed his HIV diagnosis can try his ADA claims for retaliatory termination, denial of a reasonable accommodation of reduced hours and denial of FMLA leave; although employer claims it was unaware of plaintiff’s diagnosis, plaintiff’s Facebook message to a supervisor shows otherwise.

Croy v. Blue Ridge Bread Inc. d/b/a Panera Bread (VLW 013-3-354) (19 pp.)

‘Hostile Environment’ Claim Raises Supervisor Issue

A 50-year-old female ballistics technician at an army ammunition plant cannot try her claims for sex and age discrimination and retaliation, as employer has demonstrated that its decision to transfer her came after its investigation of numerous complaints against her by coworkers; but the Roanoke U.S. District Court says she may try her hostile environment claim, based on specific allegations of comments and conduct that “sexualized” the work environment.

Lindsey v. Alliant Techsystems Inc. (VLW 013-3-340) (19 pp.)

Bank Employee’s Age-Bias Claim Advances

A bank branch manager fired at age 68 has shown a genuine dispute over whether her age was the “but for” cause of her termination, and the Roanoke U.S. District Court denies the bank’s motion for summary judgment.

Linkous v. Stellarone Bank (VLW 013-3-277) (11 pp.)

‘European’ is Protected National Origin, But Suit Fails

An Alexandria U.S. District Court says “European” is a protected “national origin” classification under Title VII, but still grants summary judgment to a Northern Virginia community college sued by a former adjunct economics professor who was denied permanent appointment.

McNaught v. Virginia Community College System (VLW 013-3-130) (51 pp.)

Employer Says Male Had Better Interview

VDOT’s “meager” and subjective explanation that a male had a better interview than did the female engineer who lost out on a promotion does not defeat her pretext claim, the Abingdon U.S. District Court says.

Hill v. Commonwealth of Va., VDOT (VLW 013-3-041) (10 pp.)

Fired for False Records, Retaliation Claim Fails

A woman terminated for falsifying time records cannot win her Title VII case alleging she was fired in retaliation for complaining about not being allowed to wear ripped jeans, although men could wear ripped jeans; the 4th Circuit also says her supervisor’s thank-you hug for Christmas cookies she gave him was not assault and battery.

Balas v. Huntington Ingalls Industries Inc. (VLW 013-2-057) (17 pp.)

No Pregnancy Discrimination in UPS Driver Policy

Although plaintiff UPS driver alleges the company was liable for pregnancy discrimination because it accommodated some disabled employees but not similarly situated pregnant workers, the 4th Circuit upholds summary judgment for UPS, based on its pregnancy-neutral policy.

Young v. United Parcel Service Inc. (VLW 013-2-008) (24 pp.)

Undischarged Debtor Can Pursue Race Bias Claim

Although plaintiff delayed disclosing to a bankruptcy judge that he had filed an EEOC charge against his employer, the Richmond U.S. District Court refuses to dismiss plaintiff’s Title VII suit on employer’s arguments that only the bankruptcy trustee has standing to pursue the race bias claim, and plaintiff is judicially estopped from pursuing his suit.

Royal v. R&L Carriers Shared Services LLC (VLW 013-3-207) (12 pp.)

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ENVIRONMENTAL

EPA Can’t Regulate Stormwater Load

The Clean Water Act does not authorize the EPA to regulate the level of a pollutant in Accotink Creek, a 25-mile long tributary of the Potomac River in Fairfax County, by establishing a total maximum daily load (TMDL) for the flow of nonpollutant stormwater into the creek, and the Alexandria U.S. District Court grants the Virginia Department of Transportation’s motion for judgment on the pleadings.

Va. Dep’t of Transportation v. U.S. Environmental Protection Agency (VLW 013-3-017) (9 pp.)

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EVIDENCE

Defendant Must Share Statement to Carrier

A Virginia Beach Circuit Court says defendant must produce a next-day recorded statement to her carrier, but does not rule on a request for defendant’s surveillance video.

Clemens v. Pleasants (VLW 013-8-026) (5 pp.)

Court Excludes Lender Business Records

An Alexandria U.S. District Court excludes from defendant’s trial for conspiracy and bank fraud loan documents the government wants to introduce as business records under the Federal Evidence Rules, where the current custodian did not create the lending files and their certificates are not sufficient to authenticate the documents.

U.S. v. Tsoa (VLW 013-3-558) (12 pp.)

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IMMIGRATION

Attorney’s Fees Awarded for Citizenship Denial

A Jordanian native who was denied citizenship because of alleged ties to the Muslim Brotherhood wins $47,577 in attorney’s fees and costs, as the government’s position was not “substantially justified”; an Alexandria U.S. District Court says the applicant’s membership in the Muslim American Society and attendance at a few lectures in Jordan sponsored by the Muslim Brotherhood did not support the government’s view that the applicant was lying about his contacts.

Abusamhadaneh v. Taylor (VLW 013-3-025) (107 pp.)

‘Voluntary’ Departure Halted ‘Continuous Presence’

A Mexican national who alleges he entered the U.S. illegally in 1995 and was turned away by INS officers when he returned to the U.S. in 2001 after going to Mexico for his father’s funeral, only to re-enter illegally several days later, failed to meet the “continuous physical presence” requirement of 8 U.S.C. § 1229b to qualify for cancellation of removal; the 4th Circuit denies the petition for review.

U.S. v. George (VLW 013-2-188) (14 pp.)

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INSURANCE

Carrier Must Defend Suit Against Sub

A CGL carrier has a duty to defend a subcontractor in a suit alleging the sub provided a defective product that caused physical damage to other property, that the plaintiff contractor had to repair, as this is a sufficient allegation to support the possibility of an “occurrence” under the relevant CGL policies, says an Abingdon U.S. District Court.

Nautilus Ins. Co. v. Strongwell Corp. (VLW 013-3-283) (21 pp.)

No CGL Coverage for Sub’s Poor Work

Homeowners alleging a subcontractor’s defective workmanship caused damage to otherwise nondefective structures do not have coverage for an “occurrence” under a commercial general liability policy, and a Chesterfield Circuit Court grants summary judgment to defendant insurance carrier on the breach of express warranty claim.

Erie Insurance Exchange v. Salvi (VLW 013-8-008) (6 pp.)

No Coverage after Delayed Claim Notice

A realty company that managed Virginia Beach vacation rentals lost its coverage under CGL and umbrella insurance policies because the company – mistakenly believing these policies would not apply – waited nearly three years to notify the carrier of an accident in which a child fell from a bunk bed in a rental property, the Norfolk U.S. District Court holds; the realty company only notified the carrier when the family filed a $10 million lawsuit alleging traumatic brain injury.

Nationwide Mutual Ins. Co. v. Sandrbridge Properties Inc. d/b/a Siebert Realty (VLW 013-3-027) (7 pp.)

No UM/UIM ‘Stacking’ for Policy Omission

Although an auto liability policy failed to specify any specific amount of uninsured/underinsured motorist coverage provided, that omission did not mean the policy terms prohibiting “stacking,” or combining coverage for multiple insured vehicles, were ambiguous under Virginia law and would allow stacking, and the 4th Circuit affirms the district court’s denial of additional coverage to appellant.

Dooley v. Hartford Accident & Indemnity Co. (VLW 013-2-101) ( 11 pp.)

Failure-to-Insure Claim Assignment is Valid

Plaintiff Cincinnati Insurance Company, as assignee of a claim against defendant insurance broker and his agency, may sue those defendants for failure to place property insurance on a property that was damaged by fire after the prior insurance had lapsed; the Richmond U.S. District Court says the assignment is valid.

The Cincinnati Insurance Co. v. Ruch (VLW 013-3-250) (20 pp.)

Policy Exclusion Bars ‘BUI’ Coverage

An insurance company need not cover defendant yacht owner for damages after his boat collided with an anchored sailboat off the coast of Middlesex County and the owner was convicted of boating “under the influence.”

The Standard Fire Ins. Co. v. Armstrong (VLW 013-3-236) (7 pp.)

No Defamation Defense Under Renter’s Policy

Although a parent defending a defamation suit says her only intention in accusing an aide at the Maryland School for the Deaf of sexually abusing her son was to protect the child, the accusation nevertheless was an intentional act, and not an “occurrence” under her renter’s insurance policy that would trigger Allstate’s duty to defend; applying California law to the coverage issue, the 4th Circuit upholds judgment for Allstate.

Francis v. Allstate Insurance Co. (VLW 013-2-049) (18 pp.)

Plywood Flying from Pickup Truck is ‘Auto Accident’

A Roanoke City Circuit Court says employees were “using” a pickup truck when they loaded a piece of plywood into the truck bed, and auto liability policies will cover a pedestrian’s injuries from the airborne plywood.

Nationwide Mut. Ins. Co. v. Gearhart (VLW 013-8-022) (29 pp.)

Carrier Must Defend Legal Malpractice Claim

A carrier must defend a law firm sued for malpractice after the firm unsuccessfully defended a client in a defamation action; the Richmond U.S. District Court says the carrier has not proven any of the cited exclusions preclude coverage in this case, including an exclusion of services not provided for “remuneration.”

Admiral Insurance Co. v. Marsh (VLW 013-3-324) (12 pp.)

CGL Policy Covered ‘Advertising Injury’

A company sued for its role in a scheme to import and mislabel counterfeit blood glucose test strips has coverage under its CGL policy for a legal defense to a suit alleging “advertising injury,” says a Norfolk U.S. District Court.

Travelers Indemnity Co. of Conn. v. Sterling Wholesale LLC (VLW 013-3-362) (16 pp.)

Law Firm Auto Policy Can’t Be Tapped

A law firm employee defending a personal injury suit that arose from an auto accident that occurred during his commute from home to work cannot look to the law firm’s insurance policy, even though a jury concluded the employee was using his automobile in the law firm’s business or personal affairs at the time; a Loudoun County Circuit Court grants defendants’ motion to strike and sets aside the jury finding.

Bartolomucci v. Federal Insurance Group (VLW 013-8-116) (3 pp.)

Settlement Without Consent Means No Coverage

The 4th Circuit affirms summary judgment for an insurance carrier denying coverage under both primary and excess policies, as the insured failed to obtain the carrier’s consent, as per contract terms, prior to settling an underlying property damage dispute at a hotel construction site.

Perini/Tompkins Joint Venture v. ACE American Ins. Co. (VLW 013-2-236) (26 pp.)

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INTELLECTUAL PROPERTY

Injunction Violated in Web Ad Placement Dispute

In this dispute over website advertising for mountain cabins, a Harrisonburg U.S. District Court says defendant violated a consent injunction’s non-disparagement clause by posting an ad for plaintiff that advised users to beware of hidden fees and charges, and the court awards plaintiff not the requested attorney’s fees of $5,323, but $1,061.

Allstar Lodging Inc. v. Rookard (VLW 013-3-620) (9 pp.)

Builder Did Not Infringe Georgian Home Design

In plaintiff home designer/builder’s suit against a couple who allegedly built a home that infringed on plaintiff’s copyright for the “Bainbridge” home design, a Newport News U.S. District Court grants defendants’ renewed motion for summary judgment.

Charles W. Ross Builder Inc. v. Olsen Fine Home Building LLC (VLW 013-3-497) (56 pp.)

No ‘Rocket Docket’ for Texas Patent Plaintiff

A Richmond U.S. District Court says the speed of the “rocket docket” is no reason to allow the court “to be overrun by a horde of Visigoths who simply want quick results,” and the court transfers to a Texas federal court this suit by a Texas company against a Seattle company for alleged infringement of its patent for an intercarrier messaging service.

Intercarrier Communications LLC v. Glympse Inc. (VLW 013-3-409) (12 pp.)

Remittitur Ordered in Patent Case

Plaintiff corporation proved infringement of five of its patents, but the Abingdon U.S. District Court says plaintiff did not prove it was entitled to the $491,046 in damages awarded by the jury, and plaintiff may accept an award of $21,625 or elect a new trial on damages.

Electro-Mechanical Corp. v. Power Distribution Products Inc. (VLW 013-3-478) (25 pp.)

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LABOR

NLRB’s Notice-Posting Rule Invalidated

The National Labor Relations Act did not have authority to promulgate a rule requiring employers to post a notice of employee rights under the National Labor Relations Act, and the 4th Circuit upholds summary judgment for the U.S. Chamber of Commerce and other business groups that challenged the rule.

Chamber of Commerce of the U.S. v. NLRB (VLW 013-2-127) (35 pp.)

Diabetic Has ADA Claim, But No FLSA Claim

Although a shift supervisor at a Yokohama tire plant says upper management did not necessarily follow his opinions on personnel matters, the Roanoke U.S. District Court says plaintiff nevertheless was an “exempt” executive for purposes of the Fair Labor Standards Act; however, the court says there are factual disputes with regard to his ADA claim alleging failure to accommodate his diabetes by granting a short-term leave.

Martin v. Yokohama Tire Corp. (VLW 013-3-585) (29 pp.)

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MEDICAL MALPRACTICE

Voluntary Dismissal Allowed, With Condition

A plaintiff may voluntarily dismiss his suit alleging negligent removal of his gall bladder by laparoscopic surgery, on the condition that he only refile any suit arising from this same set of operative facts in a Virginia state court; however, the Abingdon U.S. District Court denies defendant physician’s motion for attorney’s fees and costs.

Glass v. Baquero (VLW 013-3-202) (6 pp.)

Plaintiff May Add ‘Informed Consent’ Claim

A Roanoke City Circuit Court says a plaintiff who alleges defendant was negligent in performing vascular surgery on her right thigh five years earlier may amend her complaint to allege defendant failed to obtain informed consent, as that claim relates back to the filing date of the original complaint; however, plaintiff’s punitive damages and fraud claims do not relate back and the court grants defendant’s motion to strike and special plea.

Lewis v. Davidson (VLW 013-8-027) (13 pp.)

Birth Injury Recovery May Exceed Cap

A med-mal carrier is required to defend an action filed by parents who alleged defendant physician represented that he participated in Virginia’s Birth Injury Fund, but failed to pay into the Fund, which is not available to cover neurological injuries suffered by their child at birth; the Supreme Court of Virginia affirms declaratory judgment for the doctor’s practice group.

The Doctors Company v. Women’s Healthcare Associates Inc. (VLW 013-6-036) (19 pp.)

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MUNICIPAL

Board May Sue School Bond Advisor

A county board of supervisors may sue a private financial advisor hired by the board for breach of fiduciary duty; the Supreme Court of Virginia says the board effectively waived its common law legislative immunity from civil liability, and reverses the circuit court judgment sustaining the demurrer filed by the financial advisor.

Board of Supervisors of Fluvanna County (VLW 013-6-031) (22 pp.)

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NEGLIGENCE

Employee Has Claim for Sexual Assault by Coworker

A woman who alleges she was sexually assaulted in the company parking lot by a coworker who had not been identified as a registered sex offender by an employer background check may sue defendant employer, staffing agency and security company for assault and battery, negligent hiring and negligent retention, as these claims are not barred by the Virginia workers’ comp bar; but the Roanoke U.S. District Court says the comp bar does apply to plaintiff’s claims alleging a dangerous work environment from dim lighting and a lack of security on the night of the assault.

Hartman v. Retailers & Manufacturers Distribution Marking Service Inc. (VLW 013-3-112) (16 pp.)

‘Black Ice’ Slip & Fall Goes to Jury

A Food Lion customer who slipped on black ice near the store entrance after a store manager allegedly had observed icy spots in the parking lot several hours earlier may take her slip-and-fall case to the jury, as a Roanoke U.S. District Court says the store and its snow-removal contractor have failed to show an open and obvious hazard or plaintiff’s contributory negligence.

Hall v. DLC Management Corp. and Food Lion LLC (013-3-201) (17 pp.)

No Instruction for ‘Substantial Contributing Factor’

The Supreme Court of Virginia reverses a $282,685 jury award to the estate of a state trooper who died of mesothelioma after exposure to asbestos while observing vehicle brake inspections as a state trooper and previously, through employment as a shipyard pipefitter; Virginia law does not allow for a jury instruction on “substantial contributing factor” in multiple-causation cases, and the case is reversed and remanded.

Ford Motor Co. v. Boomer, Adm’r (VLW 013-6-007) (27 pp.)

$6.2M Wrongful Death Award Reinstated

The Supreme Court of Virginia reinstates the full jury verdict of $6,227,000 in a wrongful death case filed by a man whose wife died in a car accident when a concrete truck turned over on their car;  the trial court erred in reducing plaintiff husband’s award because the court found it was disproportionate to the jury award to the decedent’s parents.

Allied Concrete Co. v. Lester (VLW 013-6-002) (29 pp.)

Lawyer’s Mediation Conduct Binds Club

Although a warehouse club sued after an employee shooting claims its lawyer was authorized merely to attend a mediation, but not to settle the case, a Henrico County Circuit Court says the lawyer had the necessary authority to settle the case and must pay its share of a mediated settlement.

XL Insurance America Inc. v. BJ’s Wholesale Club Inc. (VLW 013-8-067) (7 pp.)

Law Firm Faces Claims for Administrator Theft

A former client who says a law firm administrator absconded with funds the client transferred  may not sue the firm on claims of negligent hiring, retention and supervision, nor does he have a separate claim for vicarious liability, the Alexandria U.S. District Court says.

Mohamed Ali v. Coleman (VLW 013-3-392) (7 pp.)

Statement Admitted in Dog-Bite Case

A woman suing defendants whose male Akita dog bit her on the arm and face will have to face her post-incident statement to animal control that she was “very intoxicated and did not remember a lot” about the incident; but the Chesapeake Circuit Court defers a decision on admitting possible expert testimony about alcohol being a stimulus to dogs.

Hamrock v. Dunham (VLW 013-8-084) (3 pp.)

Taser Maker Liable for Teen’s Death

The estate of a 17-year-old youth who died from Taser darts aimed near his heart when police tried to remove him from the grocery story that had just fired him wins its suit against Taser International Inc., but the 4th Circuit orders a new trial on damages.

Fontenot v. Taser International Inc. (VLW 013-2-217) (56 pp.)

VT Officials Had No Duty to Warn Students

Even assuming the existence of a “special relationship” under Virginia tort law between the commonwealth and Virginia Tech students, the commonwealth had no duty to warn students of harm by a third party who shot multiple students in Norris Hall after shooting two students in a dormitory earlier that morning; based on police reports after the first shooting, it cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm, and the Supreme Court of Virginia reverses a jury verdict for the estates of two students who were fatally shot in Norris Hall and enters judgment for the commonwealth.

Commonwealth v. Peterson, Adm’r (VLW 013-6-082) (15 pp.)

Oil Company Had No Duty To Warn Customer

A Richmond U.S. District Court accepts a magistrate judge’s recommendation to dismiss a suit alleging defendant fuel oil company, which sent a repair person to service a home furnace two weeks earlier, owed a common law duty to the residents who called later to report a pool of oil by the furnace, making the company liable for damages from a fire at the residence.

USAA Casualty Ins. Co. v. PM Terminals Inc. (VLW 013-3-491) (19 pp.)

Mold Claim Advances for Military Tenants

In this litigation removed from state court in which plaintiff military families allege damages and injury from “damp indoor space and mold exposures” at “rental military housing” in Norfolk, a Norfolk U.S. District Court says plaintiffs may proceed with claims for economic damages for breach of contract, negligence per se based on the Virginia Maintenance Code and common law negligence.

Federico v. Lincoln Military Housing LLC (VLW 013-3-492) (27 pp.)

Condo Association Faces Claim for President as Agent

A condominium resident may sue the condo association for negligence and premises liability based on her allegations that she was injured when her dog was confronted by dogs owned by the association president, who allowed her dogs to run free on common property despite earlier incidents when they had attacked other residents’ dogs; the Norfolk Circuit Court overrules the association’s demurrers.

McCarthy v. Fennessey and Ocean Breeze Condo. Ass’n Inc. (VLW 013-8-109) (6 pp.)

Rental Guests Sued for Dog-Bite

A plaintiff who arrived at a Lake Anna rental home to begin cleaning as defendants packed to leave can try her personal injury claim against defendants, owners of “Grendel,” a 110-pound German Shepherd, who bit plaintiff after defendants’ son-in-law told her she was free to enter the home; the Charlottesville U.S. District Court denies defendants’ motion for summary judgment.

Hoelman v. Lipman (VLW 013-3-372) (8 pp.)

Court Upholds $14M Products Award

A Pulaski County Circuit Court declines to set aside or remit a $14 million jury award for a plaintiff incapacitated by injuries he suffered after he collided with a tree while driving a 2008 Hyundai Tiburon whose side airbag failed to deploy.

Duncan v. Hyundai Motor Co. Ltd. (VLW 013-8-129) (13 pp.)

Liability Expert Disclosure Came Too Late

On remand of this grocery store slip-and-fall case for a new trial, the Richmond U.S. District Court grants defendant store’s motion to exclude plaintiff’s liability expert witness, identified after the deadline for disclosure of expert witnesses.

Adams v. Kroger LP I (VLW 013-3-635) (5 pp.)

No Sovereign Immunity for Driving Inmates

A defendant sergeant for the sheriff’s department who allegedly rear-ended plaintiff while driving two work inmates in a city vehicle to a job site does not have sovereign immunity from a personal injury action filed by a plaintiff.

Rafter v. Miller (VLW 013-8-136) (4 pp.)

No Punitive Damages Against Hospice

A plaintiff may not claim punitive damages against defendant hospice and its two employees based on allegations relating to use of an “IV pain pump” and/or a “double infusion pump”; plaintiff’s general factual allegations may state claims for negligence or gross negligence, but do not allege intentional, malicious or reckless acts necessary for a claim of punitive damages.

Rife v. Buchanan County Hospice (VLW 013-8-134) (4 pp.)

Claim Form Admissible at FELA Trial

In a railroad worker’s suit under the Federal Employers Liability Act, a Richmond Circuit Court denies plaintiff’s motion in limine to prevent defendant railroad from introduction into evidence statements made by plaintiff’s treating physician in a “Supplemental Disability Claim Form.”

Mauney v. CSX Transportation Inc. (VLW 012-8-206) (5 pp.)

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PRODUCTS LIABILITY

Expert’s Use of Inadmissible Evidence Limited

In this products liability suit against Ford Motor Company filed by a family whose daughter died of severe burns from a key-off fire in the family’s Ford Windstar van, the Supreme Court of Virginia says on rehearing that the trial court did not err in excluding evidence of seven other Ford Windstar fires and in ruling that plaintiff’s expert witnesses could not rely on the excluded evidence because it did not meet the “substantial similiarity” test.

Funkhouser, Adm’r v. Ford Motor Co. (VLW 013-6-004) (32 pp.)

No VCPA Claim for Accelerator Defect Suit

In plaintiff’s suit alleging injuries from an accident arising from a design defect that led to the sudden acceleration of her 2010 Ford Edge vehicle without application of the accelerator, plaintiff has stated claims for breach of implied warranty and reckless indifference warranting punitive damages, but the Harrisonburg U.S. District Court dismisses plaintiff’s claim under the Virginia Consumer Protection Act.

Fravel v. Ford Motor Co. (VLW 013-3-482) (10 pp.)

Court Says No to Equitable Indemnification

In a restaurant patron’s suit for damages from food poisoning after eating shellfish at defendant’s restaurant, the Roanoke U.S. District Court dismisses a claim for “equitable indemnification” in a fourth-party complaint filed by one seafood provider against another provider because the parties’ agreement controls the question of indemnification.

Collier v. Land & Sea Restaurant Co. (VLW 013-3-469) (14 pp.)

Discovery Ordered on Welder ‘Run Date’

In this suit alleging wrongful death from injuries sustained when a gas-powered welder defendant manufactured exploded and emitted fiery gasoline, the Richmond Circuit Court denies defendant’s motion for a bill of particulars and orders defendant to provide the requested discovery under the theory plaintiff advanced at the hearing, and encompassing the “run date” of 1987 to April 7, 2011, for manufacture of the welder at issue.

Pierce, Adm’r v. Miller Electric Mfg. Co. (VLW 013-8-148) (3 pp.)

‘Tree Step’ Defect Was Speculative

A plaintiff alleging injury from a defectively manufactured 1996 Grizzly Tree Step used in hunting has had a sufficient opportunity for discovery, but his products liability claim rests only on his experts’ inadmissible speculation, and the Roanoke U.S. District Court grants summary judgment to defendants.

Bambarger v. Ameristep Inc. (VLW 013-3-633) (8 pp.)

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REAL ESTATE

Soldier Wins Lease Termination Case

An airman had the right to terminate a residential real estate lease if he was transferred by the U.S. Air Force more than 35 miles from the rental property, and an Alexandria U.S. District Court grants summary judgment for the return of his security deposit, in this suit filed on the airman’s behalf under the Servicemembers Civil Rights Act.

U.S. v. Williams (VLW 013-3-095) (12 pp.)

No Duty of Impartiality for Trustee

Plaintiffs who lost their homes to foreclosure have not stated claims for a trustee’s breach of an alleged duty of impartiality, but the Richmond U.S. District Court Magistrate Judge will allow plaintiffs to amend their claims for breach of fiduciary duty and violation of RICO laws.

Goodrow v. Friedman & MacFayden PA (VLW 013-3-012) (26 pp.)

Lender Gets Constructive Trust on Wife’s Interest

Although a lender that refinanced a mortgage on property owned by husband and wife as tenants by entirety neglected to get wife’s signature on the refinance loan, the Hanover County Circuit Court imposes a constructive trust on wife’s interest in the property, now that her husband has died and the property is subject to foreclosure; but wife will not be personally liable for any deficiency payment to lender.

Citimortgage Inc. v. Hayes (VLW 013-8-021) (5 pp.)

Developer Wins Limited Declaratory Relief

In this dispute over a developer’s alternative plans to provide water and sewer service to a proposed development after the localities changed plans to share that responsibility, a Loudoun County Circuit Court orders limited declaratory relief and holds that a determination of rights regarding whether the tract may be developed with an Alternative Onsite System pursuant to Va. Code §§ 15.2-2157 and 32.1-172 in satisfaction of the proffer is proper in this case; however, requests that require the court to hypothesize theoretical land development plans are too speculative to warrant relief.

Brookfield Autumn Hill LLC v. County of Loudoun (VLW 013-8-020) (5 pp.)

Misstated Arrearage States Claim for Breach

A plaintiff who lost her home to foreclosure states a claim for breach of the note and deed of trust based on her allegation that defendant’s pre-acceleration notice misstated her arrearage, preventing her from bringing her mortgage loan current and avoiding foreclosure; but the Roanoke U.S. District Court dismisses plaintiff’s remaining claims.

Vazzana v. CitiMortgage Inc. (VLW 013-3-280) (11 pp.)

No First-Refusal Right for Former Owners

Property owners whose land was condemned so the town of Ashland could build a welcome center did not have a right of first refusal to repurchase the property when the town did not build the welcome center; a Hanover County Circuit Court sustains the demurrer filed by the town and the current owner of the property, a Chick-Fil-A restaurant, to the former owners’ suit.

Puryear v. Town of Ashland (VLW 013-8-073) (3 pp.)

Homeowners Association Can’t Recover Tree Removal Cost

In a homeowners association’s suit to recover expenses for removal of a tree that fell from a common area onto a homeowner’s condominium, a Richmond Circuit Court denies recovery of $800 for removal of the tree, but awards plaintiff the stipulated amount of $463 for homeowner’s dues and attorney’s fees allowed under the agreement.

The Townes at Grand Oaks Townhouse Ass’n Inc. v. Baxter (VLW 013-8-085) (2 pp.)

Court Vacates Fee Denial in Taking Case

In denying an award of attorney’s fees to a landowner who won a $13 million just compensation award for the government’s taking of its 1.604-acre parcel for the Norfolk federal courthouse expansion, the district court did not properly weigh the government’s unreasonable prelitigation position offering $6.1 million, and the 4th Circuit remands with instructions for assessing a fee award under the Equal Access to Justice Act.

U.S. v. 515 Granby LLC (VLW 013-2-215) (17 pp.)

Punitives Claim Survives for Tree-Cutting

A property owner who disputed the width of defendant natural gas company’s easement and refused to allow cutting of trees on the property to widen the easement may sue the company for trespass for coming onto the property and performing the work over their objections, and the Richmond U.S. District Court denies defendant’s motion to dismiss the owner’s claim for punitive damages.

Adamson v. Columbia Gas Transmission LLC (VLW 013-3-262) (8 pp.)

Law Firm Fee Payment Upheld

A law firm gets to keep $130,000 in attorney’s fees after a sale of real estate as part of a disputed estate case; the Supreme Court of Virginia says the circuit court had jurisdiction to distribute the fee as part of the sale proceeds in the settlement of the related equity actions involving trust and estate administration.

Henderson v. Ayres & Hartnett PC (VLW 013-6-037) (12 pp.)

Broker Seeks Commission on Shopping Center Sale

In plaintiff broker’s suit for a commission on the sale of Winchester Station shopping center, defendant had a buyer’s brokerage agreement of no definite duration and a confidentiality agreement for one year, prior to the property being listed, and the Fairfax Circuit Court denies summary judgment to defendant buyer because there are disputed facts concerning the terms of the parties’ agreement and whether plaintiff was the procuring cause of the sale.

The Turrisi Companies LLC v. Cole Holdings Corp. (VLW 013-8-048) (8 pp.)

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SEARCH & SEIZURE

Stop of Trespass Suspect Was Legal

A police officer was justified in stopping defendant as he walked away from a convenience store parking lot, based on the store owner’s written request for enforcement of trespass laws in this high-crime area and defendant quickly walking away when the officer spoke, and the 4th Circuit upholds the stop and defendant’s conviction as a felon in possession of a firearm and ammunition.

U.S. v. Bumpers (VLW 013-2-013) (27 pp.)

Suppression Order Reversed in Meth-Lab Case

A deputy who accompanied a social worker to a home to investigate the possible presence of children in a methamphetamine-manufacturing site had probable cause and exigent circumstances to enter the home, after observing items used to manufacture the drug in a burn pile outside the home and hearing movement inside when the deputy knocked at the door, before the occupants opened the door.

Commonwealth v. Turner (VLW 013-7-149(UP)) (8 pp.)

Court Upholds Quick Arrest, Show-Up ID

A show-up identification of defendant by a gas station clerk 42 minutes after the clerk reported being robbed at gunpoint was unduly suggestive, as defendant was handcuffed and in police custody, but the Newport News U.S. District Court says the identification was sufficiently reliable and will be admitted.

U.S. v. Bell (VLW 013-3-430) (8 pp.)

‘Warning’ Stop OK for Texting Driver

A police officer could stop defendant and warn him against texting while driving, even if the officer could only issue a citation for the conduct as a secondary offense; it was reasonable to stop defendant for swerving into the officer’s lane of travel, and the Richmond U.S. District Court accepts the magistrate judge’s recommendation and denies defendant’s motion to suppress marijuana and alcohol evidence.

U.S. v. Wingle (VLW 013-3-138) (7 pp.)

Detention Illegal for Gas-Station Group

Even assuming the initial encounter between a group of uniformed police officers and a group of five men congregated at a gas station was consensual, the officers’ increasing show of authority, immediate seizure of one man’s gun and frisk of the men in the group and seizure of defendant’s ID, quickly changed the encounter to an investigatory detention, and the 4th Circuit says a gun found on defendant should have been suppressed.

U.S. v. Black (VLW 013-2-038) (16 pp.)

Can Not at Curb, But Trash Pull Upheld

Although a trash can was not placed at the curb for collection, it was situated on common property of an apartment complex, and a “trash pull” by police to search for evidence to corroborate a tip that the tenant’s boyfriend was dealing drugs from her apartment did not violate the Fourth Amendment, the 4th Circuit says.

U.S. v. Jackson (VLW 013-2-176) (46 pp.)

Three-Hour Detention Was Unlawful Custody

Police violated defendant’s Fourth Amendment rights by holding him for three hours while they obtained a warrant to search the premises after observing a suspected drug transaction at the convenience store where defendant worked and lived; the 4th Circuit vacates defendant’s firearms convictions as the two later Miranda warnings did not remove the illegal taint attached to a statement defendant made while in police custody.

U.S. v. Watson (VLW 013-2-001) (38 pp.)

No Privacy Interest for Vehicle Claimant

A defendant who showed up to claim a Ford Explorer discovered to be carrying $3 million worth of cocaine in its gas tank, did not show any indicia of ownership or other possessory or privacy interest in the vehicle, and the 4th Circuit upholds denial of defendant’s motion to suppress and his drug conviction on a conditional guilty plea.

U.S. v. Castellanos (VLW 013-2-114) (41 pp.)

Vehicle Swerve Supported Stop for Texting

Texting while driving is a secondary offense, but an officer could stop defendant for “inattentive driving” after defendant swerved toward the officer’s car in the adjacent lane, says the Richmond U.S. District Court.

U.S. v. Wingle (VLW 013-3-031) (13 pp.)

Police Stop OK for Cab Passenger

Police who had staked out a motel where they knew a suspect possibly involved in recent bank robberies was staying had reasonable suspicion to stop a cab that left from the rear of the motel with a passenger ducking down in the back seat in an apparent attempt to escape detection; the Norfolk Circuit Court denies defendant’s motion to suppress.

Commonwealth v. Benns (VLW 013-8-111) (3 pp.)

Back-Yard Marijuana Seizure Upheld

Two police officers acting on a tip about marijuana plants growing in a field next to defendant’s home could follow local custom and enter his back yard to make inquiries, and the marijuana plants they noticed in his back yard and on his porch need not be suppressed because of the warrantless entry, a Danville U.S. District Court says.

U.S. v. Jones (VLW 013-3-440) (16 pp.)

Bus Shelter Search ‘Consent’ Not Valid

A man at a city bus shelter who was searched by a police officer responding to a report of a foot chase in the area involving a gun, did not give his valid consent to the search but merely obeyed the police officer’s order, and the 4th Circuit reverses denial of his motion to suppress the gun found on him.

U.S. v. Robertson (VLW 013-2-220) (12 pp.)

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TAXATION

Tunnel Tolls Upheld by High Court

The General Assembly did not unconstitutionally delegate its power of taxation to the Virginia Department of Transportation and Elizabeth River Crossing OpCo LLC under the terms of the Public-Private Transportation Act of 1995, and the Comprehensive Agreement between VDOT and ERC, which provides for construction of a new Midtown Tunnel  between Portsmouth and Norfolk, does not abridge the commonwealth’s police power; the Supreme Court of Virginia upholds tolls on tunnels that cross the Elizabeth River.

Elizabeth River Crossing OpCo LLC v. Meeks (VLW 013-6-081) (55 pp.)

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TORT

Nonsuited Defamation Claim Timely Refiled

A plaintiff who refiled a separate defamation action after nonsuit of the first defamation action, which was filed by a group of plaintiffs and suffered from the defect of misjoinder, has the benefit of tolling under Va. Code § 8.02-229 and her refiled action is timely, says a Richmond Circuit Court.

Bonner v. Creative Hairdressers Inc. (VLW 012-8-204) (3 pp.)

Malicious Prosecution Claim Goes to Trial

In this suit for malicious prosecution, a grand jury finding of probable cause does not insulate a defendant who allegedly was not “truthful” in her complaints to police from liability for malicious prosecution; a finding of probable cause by a magistrate or grand jury may be pertinent or even convincing, but it is not dispositive and the Westmoreland County Circuit Court denies defendant’s motion for summary judgment.

Smits v. Musselman (VLW 013-8-092) (4 pp.)

Competitor Faces Conspiracy, Trade Secret Claim

Although a former manager for plaintiff traffic control company is not a named defendant, he is a co-conspirator in his alleged scheme to take plaintiff company’s trade secrets and methods and first, form his own competing company, and upon discovery, to sell the information to another competitor, and the Harrisonburg U.S. District Court refuses to dismiss plaintiff’s claims under the Virginia trade secrets statute or claims for business conspiracy, tortious interference, common law conspiracy, unjust enrichment and punitive damages.

AWP Inc. v. Commonwealth Excavating Inc. (VLW 013-3-377) (19 pp.)

Car-Shop Complaint is ‘Opinion,’ Not ‘Fact’

In the present case, the alleged defamatory words about defendants’ work on plaintiff’s 1960 Thunderbird are not pled with sufficient specificity and are statements of opinion rather than fact, and plaintiff’s demurrer to defendants’ amended counterclaim for defamation is sustained by the Norfolk Circuit Court.

Owens v. DRS Automotive Fantomworks Inc. (VLW 013-8-103) (4 pp.)

Company Sues for Phony Chinese Sales Rep Claim

A Roanoke U.S. District Court says a software corporation may sue a competitor for defamation, trademark violations, false advertising and computer crimes for allegedly attempting to confuse customers into falsely believing plaintiff is a Chinese company instead of an American company, that plaintiff’s software is not developed or supported in the U.S. and is maintained in India, that Microsoft recommends the competitor’s product over plaintiffs and customers are leaving plaintiff’s multi-year programs early.

AvePoint Inc. v. Power Tools Inc. d/b/a Axceler (VLW 013-3-552) (37 pp.)

Jury May Hear Doctor Defamation Claim

An anesthesiologist can take his defamation case against a trauma surgeon to a jury, the Supreme Court of Virginia says; although the surgeon may have a qualified privilege to make critical comments about the plaintiff’s alleged poor effort to resuscitate a patient amounting to “euthanasia,” it’s up to a jury to decide whether the privilege has been lost.

Cashion v. Smith (VLW 013-6-075) (30 pp.)

Claim Advances for Conspiracy to Commit A&B

Two plaintiffs who claim they were approached at a bonfire near the beach house where they were vacationing and harassed about being gay and beaten by defendants can sue for conspiracy to commit assault and battery, based on allegations that their original harassers summoned others by cell phone to attack plaintiffs; the Newport News U.S. District Court says Virginia courts have not definitely rejected a claim for conspiracy to commit assault and battery.

Fuller v. Aliff (VLW 013-3-604) (11 pp.)

Meningitis Case Prompts VCPA, Punitives Claims

In plaintiff’s suit for the wrongful death of her husband from fungal meningitis allegedly resulting from an epidural injection of a contaminated steroid, a Roanoke City Circuit Court says plaintiff has stated claims for negligence, gross negligence, negligence per se, punitive damages and violation of the Virginia Consumer Protection Act, but her fraud claim is dismissed with leave to amend.

Wingate v. Insight Health Corp. (VLW 013-8-122) (5 pp.)

Dog Trainer Defamation Win Set Aside

A dog trainer must retry his defamation case because he failed to produce training videos that supported accusations of his harsh and abusive treatment of dogs.

Ebersole v. Kline-Perry  (VLW 013-3-258) (16 pp.)

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TRAFFIC OFFENSES

Breathalyzer Not Required for ‘DUI-Drugs’ Arrest

An officer who did not smell alcohol but who believed defendant was clearly intoxicated did not have to offer a breath test prior to a blood test, and the blood tests results were admissible to support his DUI conviction, the Court of Appeals says; when, as here, an officer arrests a driver for a DUI offense that involves drugs alone or in addition to alcohol, the officer may require the driver to submit to a blood test to determine level of intoxication.

Patterson v. Commonwealth (VLW 013-7-294) (10 pp.)

Driver’s License Revoked for Federal DUI

A Fairfax Circuit Court says the federal DUI statute to which defendant pled guilty substantially parallels Virginia’s DUI statute, Va. Code § 18.2-266, and the court rejects the driver’s petition asserting it was error for Virginia to revoke his Virginia driver’s license for the federal conviction.

Robertshaw v. Commonwealth (VLW 013-8-060) (9 pp.)

Preliminary Breath Test Inadmissible, Not Harmless

At defendant’s trial for reckless driving, the trial court erred in admitting testimony of the preliminary breath test with a BAC of 0.04 when no evidence was presented concerning whether such a result signified that the driver was intoxicated and driving recklessly, and the Court of Appeals reverses defendant’s conviction.

Burnside v. Commonwealth (013-7-146(UP)) (12 pp.)

Driver May Challenge Revocation for NJ Conviction

A Richmond Circuit Court grants DMV’s motion to identify an unnamed petitioner who seeks an order to rescind or to modify DMV’s order of revocation of driving privileges dated Feb. 23, 2012, which the court has reviewed pursuant to Va. Code § 46.2-410.1.

Doe v. Commonwealth of Va., Comm’r of the Dep’t of Motor Vehicles (VLW 012-8-201) (10 pp.)

Naval Station Road Is ‘Public Highway’

Although the Navy controlled access to roads on which defendant traveled on his moped, the road he was on was a “public highway” under Virginia law and defendant may be prosecuted for DUI pursuant to Va. Code § 18.2-266.

U.S. v. Perez (VLW 013-3-454) (13 pp.)

Driveway Defendant Convicted of DUI

An intoxicated man asleep in his vehicle at 3:30 a.m., with the car radio on, can be convicted of driving under the influence even though the commonwealth did not prove he had any intent to engage the vehicle’s motive power and take it out onto a public roadway; the Court of Appeals affirms his conviction under Va. Code § 18.2-266.

Sarafin v. Commonwealth (VLW 013-7-253) (18 pp.)

Faulty Sign Means No HOV Conviction

A Fairfax Circuit Court finds defendant not guilty of driving a motor vehicle in a designated High Occupancy Vehicle lane under Va. Code § 33.1-46.2, as the HOV lane was not appropriately marked and the terms of the HOV restrictions “plainly posted,” as required by Va. Code § 33.1-46.2.

Commonwealth v. Patton (VLW 013-8-126) (13 pp.)

No Notice of License Suspension

The Court of Appeals reverses defendant’s conviction for driving on a suspended license where Department of Motor Vehicle records showed a letter sent by certified mail notifying her of her license suspension for failure to complete a “clinic interview” was returned unclaimed.

Carew v. Commonwealth (VLW 013-7-321) (5 pp.)

Stop OK for Driving on Highway Fog Lines

The Virginia Code backs a Fort Lee police officer’s view that a driver violates Virginia’s “single lane of travel” statute if he drives on, but not over, a highway boundary line, and a Richmond U.S. District Magistrate Judge denies defendant’s motion to suppress in this DUI prosecution.

U.S. v. Williams (VLW 013-3-265) (16 pp.)

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WILLS & TRUSTS

Ex-Wife Has No Claim to Decedent’s IRA

Although decedent’s ex-wife was a named beneficiary on an IRA he established in 2000, their 2005 property settlement agreement allowed assets to be transferred into each party’s separate IRA and husband later transferred his assets into a second and third IRA, and decedent’s estate, not his ex-wife, is entitled to the $350,000 in his IRA, says an Abingdon U.S. District Court.

UBS Financial Services Inc. v. Childress (VLW 013-3-353) (8 pp.)

Trust Cutting Off Only Child Upheld

The sole surviving child of a decorated Marine Corps officer who died at 91 loses her challenge to a 2008 Amended Trust that named decedent’s close companion, a widow who lived in the same retirement community for retired officers, as trustee and primary beneficiary during her life, and the widow’s daughter as the primary residual beneficiary; the testimony of plaintiff daughter and her computer forensics expert and document expert do not persuade the Alexandria U.S. District Court that the named beneficiaries altered the trust or acted improperly in any way.

Oliver v. Hines (VLW 013-3-450) (29 pp.)

ERISA Claim on IRA May Prompt Sanctions

In this dispute over ownership of a decedent’s Individual Retirement Account claimed by his ex-wife,  the Abingdon U.S. District Court declines to award attorney’s fees to the administrator under the couple’s earlier property settlement agreement, but orders counsel for the ex-wife to show cause why they should not be sanctioned pursuant to Fed. R. Civ. P. 11 or 28 U.S.C. § 1927 for suing under ERISA, which does not apply to IRAs.

UBS Financial Services Inc. v. Childress (VLW 013-3-444) (9 pp.)

Trustee Faces Claim for Failure to Fund

A successor trust may sue a former trustee for allegedly failing to pay premiums on an $800,000 life insurance policy meant to fund the trust for the benefit of plaintiff trustee and his sister as beneficiaries of the trust set up by their parents; the Richmond Circuit Court says plaintiff trustee states claims for breach of fiduciary duty and breach of contract.

Tillar, Trustee v. Stump (VLW 013-8-140) (6 pp.)

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WORKERS’ COMP

Panel Could Not Use Retired Commissioner

The General Assembly has not authorized the Workers’ Compensation Commission to recall a retired commissioner to sit on a review panel, and the Court of Appeals reverses the commission’s denial of benefits to a brain-injured claimant on the ground that he willfully violated a known safety rule.

Layne v. Crist Electric Contractor Inc. (VLW 013-7-347) (10 pp.)

Provider Surcharge for Comp Patients Not Paid

Testimony by the chief financial officer of an orthopedic practice that it charges 40 percent more for workers’ comp patients, to cover overhead for extra time and administrative costs, does not prove the provider’s case that its fees are reasonable under Va. Code § 65.2-605, and the Court of Appeals upholds denial of the provider’s claim for an additional $8,966.56 for treating claimant’s shoulder.

Fredericksburg Orthopaedic Associates v. Fredericksburg Machine & Steel LLC (VLW 013-7-142) (9 pp.)

Employer Has ‘Bona Fide’ Safety-Rule Defense

The Court of Appeals says a commercial laundry attendant with a prior back injury is barred from workers’ comp benefits for a later back injury because of his misconduct in failing to wear the back brace, despite the attendant’s claim that the employer did not enforce its back brace safety rule.

Mouhssine v. Crystal City Laundry (VLW 013-7-143) (16 pp.)

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