The VLW Blog

Liberty University’s law school is asking a federal judge to force the school’s insurance company to come to its defense as it fights a federal racketeering lawsuit involving the alleged kidnapping of a 10-year-old girl in the midst of a same-sex-marriage custody battle.

LU law has filed a declaratory judgment action in Lynchburg federal court claiming Hanover Insurance Co. and its affiliates were wrong to deny coverage and a defense for the school in the lawsuit filed by Janet Jenkins.

In her Vermont lawsuit, Jenkins contends agents of Liberty’s law school conspired to aid the 2009 disappearance of then-10-year-old Isabella Miller. The girl and her birth mother, Lisa Miller, fled to Nicaragua with the help of a Virginia pastor who was convicted last summer of aiding an international kidnapping.

The insurance company says it does not owe coverage because Jenkins’ lawsuit does not claim bodily injury, property damage or “personal and advertising injury” under its policies. The insurer cites 18 other bases for denial.

The law school, represented by Calvin W. Fowler Jr. of Richmond, contends Jenkins’ claim of emotional distress “easily falls within the broad scope” of the policy’s definition of “bodily injury.”

The insurance coverage dispute has been assigned to U.S. District Judge Norman K. Moon.

In the Vermont lawsuit, Liberty’s law school has a motion to dismiss pending.

The Virginia State Bar has announced a comment period for a proposal to increase the size of the VSB’s Executive Committee from 13 to 16 members.

The suggestion for a bigger EC emerged from the debate over adding a representative from the VSB’s Diversity Conference to the EC. The proposal was advanced to alleviate concerns that having three conference representatives on the EC diluted the voice of rank-and-file lawyers.

The VSB Council last week approved a by-laws change to add the chair of the Diversity Conference board of governors to the EC, giving the diversity panel a voice on the VSB’s top policy body. A companion proposal to increase the size of the EC was tabled, but with the understanding that comments would be received.

The deadline for comments is Sept. 13. Comments should be delivered to the VSB offices or emailed to publiccomment@vsb.org.

The VSB Council could act on the EC expansion proposal at its Oct. 4 meeting.

A Norfolk federal court has ordered a private collector to return a Tiffany presentation sword to Brown University, from where it apparently was stolen prior to 1977.

In 1863, 50 prominent citizens of New York presented the Tiffany silver sword to Colonel Rush C. Hawkins, a lawyer who led a Civil War regiment, the 9th New York Volunteers, known as “Hawkins’ Zouaves.” The sword was part of a memorial collection the Hawkins family left to the university, in honor of Hawkins’ wife Annmary Brown, a descendant of the founders of Brown University.

After a years-long skirmish over the sword, Norfolk U.S. District Magistrate Judge Douglas E. Miller ordered Donald R. Tharpe, a renowned collector of Civil War antiquities who is based in Williamsburg, to hand over the sword.

Tharpe had purchased the sword in 1992 for $35,000 from another collector who showed it at an antique arms show in Gettysburg, and he claimed to be a bona fide purchaser.

But Brown established the Tiffany sword was stolen, Miller said, so Tharpe’s status as a bona fide purchaser would not defeat the school’s claim.

“Although Tharpe may have purchased the Sword for value in good faith, he did not obtain good title to it,” as the thief could not convey good title to anyone, the court said.

On June 5, Miller ordered the sword and ornamental scabbard returned to Brown University, as the “lawful owner, and custodian of Col. Hawkins’ legacy.”
–Deborah Elkins

A roadside alcohol breath test may be inadmissible for charges of driving while intoxicated, but a similar preliminary breath test should be allowed in court for other alcohol-related cases, Attorney General Ken Cuccinelli says.

In a June 7 official opinion, Cuccinelli said preliminary breath test results should come in, with a proper foundation, for underage possession of alcohol, public intoxication, and consumption of alcoholic beverages by an interdicted person.

The opinion was requested by Fredericksburg Commonwealth’s Attorney LaBravia J. Jenkins.

Police officers carry hand-held breath alcohol testers to get a reading in the field on a person’s blood alcohol content. The law requires a more stringent chemical test on breath, blood or both for evidence of drinking-and-driving offenses. The chemical tests are normally performed at a police station or medical facility.

Under Virginia law, the results of the preliminary field tests are barred from evidence on DWI and other driving offenses. “No such prohibition exists” for non-driving offenses, Cuccinelli said.

Cuccinelli emphasized, however, the need for a proper foundation for the preliminary test evidence, including “the foundation that the machine was working properly.”

The burgeoning demand for concealed weapon permits shows no sign of cooling off, at least in Southwest Virginia.

Wise County court officials have received more applications for pistol permits in the first six months of 2013 than permits issued for all of 2012, a “historic record-setting increase,” according to clerk Jack Kennedy.

Over 700 people have paid the $50 filing fee for a CWP so far this year, Kennedy reported in his blog.

Figures from the Supreme Court of Virginia suggest Wise County is no fluke. Statewide applications for CWPs in the first three months of the year more than doubled the number from the same period last year, according to the court’s caseload figures.

The trend was apparent from urban and suburban communities to rural locales.

The application fee is split between state and local law enforcement agencies conducting the required criminal background checks, Kennedy said.

A new state law effective July 1 will bar circuit court clerks from disclosing who has concealed handgun permits except to law enforcement officials.

While lawyers, judges and academics partook of legal education, fellowship and sunshine at the Virginia State Bar Annual Meeting Friday, the soon-to-be new owner of The Cavalier Hotel unveiled details of an agreement for renovation of the historic property.

The Virginia Beach city council and developer Bruce Thompson reached a deal Thursday night for financing the preservation of the hotel that has hosted the VSB gathering for 35 years.

The private investment over ten years will reach a total of $259 million dollars, including the $35-million purchase price, according to WAVY-TV. The city will contribute $13 million right away and another five million over time, the station reported.

Mayor Will Sessoms told the station the city’s contribution will come through grants and incentives.

The council will hold a public hearing June 25 and vote on the package on July 2, according to The Virginian-Pilot.

The 4^th Circuit has struck a federal rule that required employers subject to the National Labor Relations Act to post notice informing employees of their rights under the Act. In a unanimous opinion, the Richmond-based federal appeals court upheld summary judgment for the U.S. Chamber of Commerce in a case that has been closely watched by business groups.

Promulgated by the National Labor Relations Board in August 2011, the rule drew some 7,000 submissions, mostly negative, during the public comment period. The NLRB said the rule was necessary to educate workers about their rights, as the overwhelming majority of private sector employees are not represented by unions. Today’s labor force, including immigrants and high school students just entering the labor force, “are uninformed about labor law and labor relations,” the board said.

But the appellate panel, in an opinion by Judge Allyson K. Duncan, said the rulemaking function provided for in the NLRA did not give the board the statutory authority to promulgate the challenged rule.

Duncan said the board is nowhere charged with informing employees of their rights under the NLRA, nor does Section 8 give the board power to require the posting of notices. The panel said in Chamber of  Commerce v. NLRB that it could not accept an interpretation of the NLRA that would allow the NLRB to bootstrap Section 8(a)(1) into authority to enact the “unprecedented rule.”

In May, the D.C. Circuit also struck the rule in a challenge filed by the National Association of Manufacturers, holding the notice-posting rule violates the NLRA’s Section 8(c), which prohibits the NLRB from finding employer speech that is not coercive to be an unfair labor practice or evidence of an unfair labor practice.

Summertime and the livin’ is easy. But the walking may not be, according to a workers’ comp case released on June 12.

It’s been a few years since a college women’s lacrosse team scandalized some of their mamas by wearing flip-flops to meet President George W. Bush. But there’s no sign the ubiquitous summer sandals are any less popular nowadays, and they sometimes show up in the workplace.

Youlanda Ford had no idea why she tripped and fell as she turned to respond to a colleague at the Community Corrections Administration. She was walking on a flat, level, carpeted hallway, and she acknowledged she did not see anything on the floor that caused her to fall and break her ankle.

However, a coworker testified to seeing Ford walking, trip on her flip-flop shoe, and fall.

Finding “no persuasive evidence that any type of work-related condition or exertion caused her fall,” the Virginia Workers’ Compensation Commission denied Ford’s claim for medical benefits and temporary total disability benefits.
–Deborah Elkins

A Wise County court reporter has admitted helping a lawyer try to dodge federal drug charges.

Ernest Benko, 67, was accused of recording depositions of federal witnesses at the behest of lawyer Stuart Collins. Authorities contended Benko knew that he was recording false testimony designed to undermine the government’s case against Collins.

Later, Benko allegedly told FBI agents he had no idea Collins was involved in illicit drug activity.

Benko pleaded guilty Wednesday to one count of obstruction of an official proceeding and one count of conspiracy to cause false statements and obstruct an official proceeding. He faces up to 25 years imprisonment and a potential fine of $500,000.

“Lying to federal investigators is a serious crime,” said U.S. Attorney Tim Heaphy in a news release announcing Benko’s guilty plea.

Collins pleaded guilty in May to four felony charges. He and Benko both are scheduled to be sentenced Sept. 10.

The future of The Cavalier Hotel may be a matter of developers’ vision and municipal generosity, but the present reality is comfortably familiar.

The Virginia State Bar is checking in for its 2013 Annual Meeting with 566 participants registered and more expected at the door, according to VSB assistant executive director Elizabeth Keller.

Keller said services and accommodations have not suffered, despite the recent turmoil over ownership and preservation of the historic oceanfront hotel complex. Cavalier officials have been busy, with representatives of a court-appointed receiver on site, Keller said.

The 50-year ownership of the hotel by a closely held family corporation is coming to an end amid settlement of a long-standing family squabble. Meanwhile, the soon-to-be new owner offers a radiant vision for the future, as long as city leaders chip in millions to make renovation feasible.

Reconstruction could displace the VSB from The Cavalier next year, but all appears to be business – and summer pleasures – as usual for 2013.

Another relocation is pending for the VSB. Facing non-renewal of its downtown Richmond office lease, the VSB has been scouting new headquarters locations.

Executive director Karen Gould reports three buildings are under consideration, but she declined to identify the prospects. A broker is expected to negotiate for a new lease once a choice is made, Gould said.