The VLW Blog

Gov. Bob McDonnell has approved a bill creating a new tort cause of action in Virginia for the wrongful death of an unborn child.

McDonnell offered no proposed amendments as he signed Senate Bill 674 Monday. The bill takes effect July 1.

Supporters say the bill allows compensation for family members when an unborn child dies as a result of medical malpractice, domestic abuse or negligence. Currently, an expectant mother can recover emotional distress damages for the loss of a fetus, but there is no cause of action for wrongful death.

One supporter said the bill provides a civil remedy to correspond with the recent approval of criminal punishment for fetal homicide.

By Peter Vieth

The Arlington Sun Gazette is reporting that Arlington could get not one, but two circuit judges in the budget deal recently hammered out by Senate and House conferees.

The conference report will be released to the public Sunday, and legislators will return next Tuesday, April 17, to vote.

Arlington very shortly will have only one circuit judge, following the retirement of Judge Benjamin N.A. Kendrick last year and the pending departure of Judge Joanne F. Alper in May. Dockets have been handled in patchwork fashion, using retired and visiting judges.

But legislators are poised to fund two seats in Arlington. Dan Fiore and Louise DiMatteo would succeed Kendrick and Alper, respectively.

- Paul Fletcher

Lawsuit, what lawsuit?

If Brenda Altman ever wondered what happened to the employment discrimination suit she filed in federal district court back in 2001, she apparently didn’t do anything about it. A former civilian audit assistant for a U.S. Army facility in Winchester, she sued for age and sex discrimination in the U.S. District Court for the District of Columbia. In December 2003, that court ordered that venue be transferred to the U.S. District Court for the Western District of Virginia.

The D.C. court lost track of the record and did not send the files to the federal court in Harrisonburg until 2011. The defendant promptly moved to dismiss for failure to prosecute. Altman admitted she never attempted to contact the D.C. court to determine the status of her case. After a couple of years, she thought her case was over and destroyed most of her records, she told U.S. District Judge Michael F. Urbanski.

But given her pro se status, and her attention to the case after its transfer, Urbanski said he could not dismiss the case just because the Army claimed prejudice from the delay. Fortunately for the defendant, there were plenty of other reasons to dismiss the case, including a failure to exhaust administrative remedies and the fact that Altman had settled one of her claims for $59,000.

Then there was the court’s take on what was really going on in the case. Employment lawyers, this will sound like a familiar attempt to make a federal case out of generic workplace difficulties.

Altman’s evidence painted a picture of her “as an employee who often failed to produce quality work and then blamed such failures on lack of training or the actions of her superiors, as well as an employee who became overly involved in matters that were not her concern and who needed unreasonable amounts of supervision,” Urbanski wrote.

The supervisor who allegedly harassed Altman was no sweetheart, as Altman’s exhibits portrayed him as someone who was “disliked by many employees, including Altman, because of his critical, intimidating and negative comments and actions toward his subordinates,” regardless of their age, sex or any other protected status, Urbanski recounted.

The case is Altman v. McHugh, Sec’y of the Army.
–Deborah Elkins

A Richmond federal court has applied the brakes to an auto-accident plaintiff’s attempt to collect a $4 million judgment she won in Richmond state court last October.

Sheila Womack, a 29-year-old office assistant, claimed she suffered a head injury when Jerrene Yeoman made an improper left turn and their cars collided. Yeoman admitted liability, but contested the head injury. Yeoman had a GEICO policy with $300,000 in liability coverage, and Womack had $1 million in underinsured motorist coverage from Transportation Insurance.

After Yeoman cited a debt from the $5 million lawsuit as a claim in her bankruptcy court filings, Richmond Circuit Judge Margaret P. Spencer ruled Yeoman could not take inconsistent factual positions in litigation, and entered summary judgment for Womack. Transportation’s petition for appeal, Record No. 112283, is pending in the Supreme Court of Virginia.

Womack went to federal court and sued for breach of contract and damages for bad faith denial of insurance coverage.

U.S. District Judge Henry H. Hudson said the Virginia Supreme Court hasn’t really ruled on just when there is an enforceable judgment that triggers the UIM carrier’s duty to pay. Womack’s judgment is not a sure thing.

Hudson said he could not assume the validity of the state court judgment, as a review of the record as submitted by the parties “would not readily support that assumption. To the contrary, Transportation’s appeal raises issues that are far from facially frivolous.”

Hudson stayed Womack’s suit to enforce the judgment.
–Deborah Elkins

The stolen goods amounted to one $2.59 can of Red Bull, but it is the defendant accused of the theft that makes the case remarkable. Loudoun County public defender Lorie E. O’Donnell is charged with shoplifting the energy drink from a Frederick County grocery store March 2.

O’Donnell has been in charge of the regional public defenders office based in Leesburg since at least 1998, according to The Washington Post. The office handles indigent defense in Loudoun, Fauquier and Rappahannock Counties.

A security officer told a sheriff’s deputy O’Donnell was caught taking items previously, but was never before charged, according to the paper’s account.

The paper also reported a deputy took O’Donnell’s driver’s license after determining it had been suspended.

Online court records indicate a June 19 trial date.

The budget compromise hammered out last week by House and Senate conferees includes money for filling 23 trial court judgeships, according to a knowledgeable source.

The plan would unfreeze 10 circuit court positions, six general district court slots, and seven juvenile and domestic relations court seats, at a reported cost of $5.8 million for judgeships and court personnel.

The judgeships to be funded would be those that are either vacant now or will become vacant this year where the caseload exceeds the state average. A list of judgeships to be filled is expected to be available later this week.

The information comes from an official with knowledge of the budget conference proceedings who is not authorized to speak for the conferees.

The original House budget plan called for unfreezing 33 judgeships, the Senate proposed funding 10.

By Peter Vieth

Language-learning company Rosetta Stone has won the right to try part of its trademark infringement action against Internet industry giant Google, in a decision released earlier today by the 4th U.S. Circuit Court of Appeals.

Rosetta Stone sued Google after it relaxed its policy on use of trademarks in ads on Google’s AdWords platform. Rosetta Stone said consumers who performed Google keyword searches using the language company’s widely recognized mark were being directed to counterfeiters and competitors of Rosetta Stone. Alexandria U.S. District Judge Gerald Bruce Lee granted summary judgment for Google.

Today the 4th Circuit upheld summary judgment for Google on the plaintiff’s claims for vicarious infringement and unjust enrichment under Virginia law. But it vacated summary judgment for Google on Rosetta Stone’s claims of direct infringement, contributory infringement and trademark dilution, and remanded to the district court.

Among other points, the appellate panel said there were factual issues as to whether consumers were sophisticated enough to distinguish among products pulled up with a “Rosetta Stone” search on Google, and whether Google continued to supply its services to known infringers of the Rosetta Stone mark.

The 47-page unanimous opinion in Rosetta Stone Ltd. v. Google Inc. is VLW 012-2-088.
–Deborah Elkins

Gathering news every day for Virginia lawyers, it’s tempting to take a look over the fence at what our neighbors are up to in their legal endeavors. It’s surprising, sometimes, what you see next door.

Take, for instance, the details emerging about a former Tennessee judge so badly addicted to painkillers he was buying pills from criminal defendants and having sex during courtroom breaks. His condition was so compromised, the Associated Press reports, that convictions in his courtroom now are being challenged.

Or what about the aborted murder trial in Gaston County, North Carolina? The defendant claimed he had sex with an assistant prosecutor, his lawyers then withdrew from the case, and the judge declared a mistrial.

Sometimes it can be comforting to see such things going on elsewhere. It makes you glad you’re practicing in Virginia.

-By Peter Vieth

Legislators negotiating a budget deal may be close to figuring out who will be in Virginia’s newest crop of judges and where they’ll be sitting, according to one budget conference committee member.

In a recent round of talks, the House wanted to fund 26 judges and the Senate was looking to fill 20 seats, according to Sen. John Watkins, R-Chesterfield, who spoke at today’s annual legislative update for the Metropolitan Richmond Women’s Bar. The numbers tell the story. Earlier in the legislative session, the House wanted to fill 33 trial court seats while the Senate had only identified 10 vacancies to be filled. Legislators also still are negotiating sources of funding and whether some judicial vacancies would be “frozen.”

But there appears to be a consensus to fund the weighted caseload study authorized under HB745, which passed both bodies in March. Such a study would precisely measure and compare judicial caseloads throughout Virginia for circuit, general district and juvenile and domestic relations district courts, to support possible redrawing of judicial boundaries.

The blockbuster issues have been roads, education and health care. But legislators also like to have judges in their districts, and judges may be thrown into the deal-making.

Courts committees already have interviewed and certified a long list of judicial candidates. The next step would be election through floor action. The General Assembly is set to return to Richmond for the one-day veto session on April 18.

Other legislators who appeared at the MRWBA luncheon to highlight bills from the recent General Assembly session were: Sen. Henry Marsh III, D-Richmond; Del. Rosalyn R. Dance, D-Petersburg; Del. G. Manoli Loupassi, R-Richmond; and Del. Jennifer L. McClellan, D-Richmond.
–Deborah Elkins

A legal malpractice carrier does not have to defend a malpractice claim against a lawyer who invested in his client’s business, the 4th U.S. Circuit Court of Appeals held March 29. The appellate panel upheld a November 2010 trial court decision denying coverage to attorney Donald E. Stout and his firm, Antonelli, Terry Stout & Kraus LLP.

The Arlington law firm forfeited its malpractice coverage because of its involvement with various client business entities, which allowed the trial court to apply the malpractice policy’s “business enterprise exclusion” (BEE). The underlying malpractice claim arose from the firm’s alleged refusal to share proceeds from the 2006 settlement of a patent infringement case involving technology used in Research in Motion’s BlackBerry system.

The policy excluded coverage for damages from a claim arising out of professional services rendered by the insured in connection with any “business enterprise” owned, controlled or managed by the insured.

Although the policy did not define “business enterprise,” there was little dispute that it encompassed the various corporations involved in the Stout case, the panel said.

In its unpublished per curiam opinion in MLM v. Antonelli, Terry, Stout & Kraus LLP, the panel said “the defendant attorneys in this case allegedly obtained complete ownership and control of their clients’ assets and exploited those assets for personal benefit. This conduct violates any number of Virginia professional ethics rules.”
–Deborah Elkins