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Court to review ruling on Dead Man’s Statute

Alan Cooper//August 26, 2011

Court to review ruling on Dead Man’s Statute

Alan Cooper//August 26, 2011//

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The Supreme Court of Virginia will review a Roanoke trial judge’s ruling that a physician’s medical notes provided corroboration for the physician’s testimony that he advised a patient to see an endocrinologist because he suspected the patient had Cushing’s syndrome. The patient’s widow alleged that he died from complications of the syndrome because the physician failed to refer him to an endocrinologist. The widow contended that the records could not be considered to be corroborative because they are the type of self-serving statements intended to be excluded by the Dead Man’s Statute, Virginia Code § 8.01-397. The case is Mary Sue Robinson v. Medhat Elmasry, Record No. 110966.

Other writs granted recently by the court include:

American International Group Inc. v. Anthony Pellechio, No. 110926. An insurer that provided a $10 million umbrella policy contended that the co-owner of a car lacked the authority to allow her boyfriend to drive the vehicle when she was too intoxicated to do so. The trial judge in Fairfax relied on policy language that provided coverage for anyone “that is responsible for the use” of the car. The insurer contended that phrase had to be read in the context of someone who had permission to drive the vehicle. The plaintiff was a Harvard-trained, Ph.D economist for the International Monetary Fund who suffered brain injuries in the crash.

Charlottesville Area Fitness Club Operators Association v. Albemarle County Board of Supervisors, No. 110741. A challenge by a group of fitness clubs to a $2 million payment by the county to a YMCA for construction of a recreation center that would be available to county residents at a discounted rate. The clubs contended that such an arrangement required compliance with the Virginia Public Procurement Act, but the Albemarle judge ruled that the deal was a payment or donation to a charity permitted by Virginia Code § 15.2-953.

City of Richmond v. Jackson Ward Partners LP, No. 110820. The city assessed separately several properties that had been renovated as one project under a Low Income Housing Tax Credit program. The owner challenged the method of assessment because the properties were operated as a single unit and could not be sold separately under the restrictions of the program.

Matthew W. Cline v. Dunlora South LLC, No. 110650. A long-dead tree 15.6 feet from the right of way on private property on Rio Road East in Albemarle County fell on an SUV driven by a dentist and broke his neck. The trial judge ruled that the property owner had no duty to inspect for and remove trees potentially dangerous to those in a public right of way.

Gerald T. Dixon Jr. LLC v. Hassell & Folkes PC, No. 110187. The appropriate statute of limitations for an agreement to survey a plat became an issue when an adjacent property owner filed suit alleging trespass because the survey was a foot off. The developer never signed a written proposal by the surveyor but abided by all the terms in the agreement. The trial judge in Chesapeake applied the three-year statute of limitations for oral contracts rather than the five-year statute for written agreements.

Edwin Krieghoff III v. Wilhelm & Associates Ltd., No. 110627. The plaintiff signed an at-will employment contract that nevertheless guaranteed he would be compensated for a year provided he was not terminated for cause. Before he began work, however, the plaintiff signed an employment agreement that appeared to permit termination at will with no provision for compensation. Plaintiff was terminated after four months because of a lack of work. The trial judge in Arlington ruled that the second contract superseded the first so that the company was not liable for the eight months of compensation.

Orthopedic & Sports Physical Therapy Associates Inc. v. Summit Group Properties LLC, No. 110849. A physical therapy practice agreed to be a partner with an orthopedics group in the construction of a medical office building in Spotsylvania County with the understanding that the orthopedics practice would continue to refer patients to it for therapy. Instead, the orthopedics practice set up an in-house physical therapy operation, and the physical therapy practice defaulted on its lease for space in the new building. The physical therapy practice filed a counterclaim for fraud after the owner of the building sued to collect overdue rent. The issue on appeal is whether the trial judge properly instructed the jury that it had to find that members of the LLC that owned the building authorized the allegedly fraudulent activity before they could find it liable for fraud.

PBM Nutritionals LLC v. Lexington Insurance Co., No. 110669. A manufacturer of infant formula contended that its all risks insurance policy covered the contamination of $6 million worth of formula. The contamination occurred when a malfunctioning valve permitted superheated water into the manufacturing process and destroyed filters containing melamine. The trial judge in Richmond ruled that a pollution exclusion barred coverage.

Violet Seabolt v.  County of Albemarle, No. 110733. Plaintiff tripped over a nail protruding from a ramp at the Scottsville Community Center operated by Albemarle County. The trial judge ruled that sovereign immunity required the plaintiff to prove gross negligence and held that a plaintiff who contends that a hazard that was not open and obvious cannot establish gross negligence. Plaintiff contended that the judge erred in establishing such a per se rule.

Ed Waters v. English Construction, No. 110694. A man and his wife associated with the development of the Bridgewater Pointe condominium development on Smith Mountain Lake provided a guaranty for part of the work, and the developer sued to collect on the guaranty when the project fell victim to the housing bust. A jury awarded $706,000 to the contractor, but the guarantors contended that the judge erred on two points: barring the jury from considering alleged delay, construction defects and failure to perform by the contractor, and rejecting the argument that the release of the lender by the contractor also released the guarantor.

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