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Judge David B. Carson

Apr 16, 2020

Nonsuit filing after dismissal hearing rejected

Where plaintiff filed a nonsuit motion after a hearing on defendant’s motion to dismiss, the nonsuit motion is denied because the case had been submitted to the court for a decision. Background Plaintiff alleged that defendant Norfolk Southern Railway caused, in whole or in part, the death of plaintiff’s decedent. Defendant filed a motion to […]

Apr 16, 2020

Biopsy slide photos not discoverable

Where defendant doctor’s counsel in this medical malpractice case directed her to photograph plaintiff’s biopsy slides, the photos are attorney work product. Plaintiff alleges that defendants misdiagnosed her with a specific cervical cancer, for which she received treatment. While deposing Dr. Sheth, one of the defendants, plaintiff learned that after she filed her suit, Sheth’s […]

Jul 14, 2019

Driver backed into woman, hurting her ankle – $248,630 Verdict

The case arose from injuries sustained in a low-speed collision in a restaurant parking lot on April 16, 2013. The plaintiff, who had an unrelated right knee injury scheduled for surgery several weeks later, was exiting the passenger side of a pickup truck to enter the restaurant. The defendant was backing her own vehicle out […]

Jun 15, 2019

No indemnity for own negligence

The court will grant the demurrer filed by a third-party defendant because the indemnity provision at issue would allow another party to seek indemnity from this defendant for its own negligent acts. Discussion Plaintiff Morris sued defendant DSA on negligence theories. DSA filed a third-party complaint against Thomas Builders, the third-party defendant, on the basis […]

Feb 5, 2019

No increase to hourly rate for insurance repairs

Where an insurance company consistently advised a repair shop that it would pay the standard hourly rate to repair hail damage to the insured’s vehicle, the insured has not shown that an enhanced rate was reasonable and necessary to make the repairs. Facts Ruble owned a pickup truck that was damaged in a hail storm. […]

Jan 12, 2019

Default for missed pleading deadline upheld

Code § 8.01-428(D) does not grant a court unlimited power to set aside a default judgment, and, as a result, where petitioner missed a pleading deadline in the underlying action, the default judgment granted in respondent’s favor is upheld. Parties’ positions Petitioner, 21 East, has asked the court to set aside a default judgment entered in […]

Nov 25, 2018

Cause of girl’s knee injury at issue in rear-ender – $100,000 Verdict

The plaintiff was a 16-year-old high school student who suffered a suspected right patellar dislocation playing softball on April 14, 2014. There was evidence that the plaintiff was back to exercising and playing basketball during the summer of 2014. On Aug. 11, 2014, the plaintiff was rear-ended on Interstate 81 as she was slowing down […]

Jun 29, 2018

Va. Cir.: Ex parte hearing granted, but before different judge

An indigent defendant facing two life sentences for rape and related offenses can argue ex parte why he requires expert assistance, but he must make his case to a circuit judge other than the one presiding over the case. Background Defendant Nigel Stockton, an indigent defendant with appointed counsel, is charged with rape, abduction with […]

Jun 26, 2018

Full Court of Appeals rejects speedy trial defense

For lack of audio evidence about a courtroom colloquy, the full Court of Appeals of Virginia has turned aside an earlier 2-1 panel decision and upheld a man’s 63-year sentence for attempted murder. The case turned on application of Virginia’s speedy trial statute, Code § 19.2-243. The 12 Appeals Court judges ruled that confusion about […]

Jun 3, 2018

Va. Cir.: Liability cap applied to attorneys’ fees

In a contract for services performed that limited the service provider’s liability to the value of the service, any attorneys’ fees awarded also could not exceed the liability cap. Background In September 2012, Plaintiff LAM Enterprises LLC contracted with Defendant Roofing Solutions Inc. to replace a portion of a roof on LAM’s commercial property. The […]

Apr 23, 2018

Va. Cir.: Title challenge must be separate claim, not defense

In an action for unlawful detainer, defendants occupying their deceased mother’s home could not effectively challenge title by affirmative defense only; any title disputes needed to resolved by separate lawsuit or counterclaim. Background Sometime prior to November 28, 2016, at least one of the Defendants began occupying the residential property at issue. The property was […]

Mar 5, 2018

Va. Cir.: Jury verdict enforcing expired contract was unjust

A jury’s advisory verdict awarding specific performance of the parties’ contract was a plain deviation from right and justice, given that the contract’s term had expired. Background The parties in this case – Plaintiff Rockbridge Area Conservation Council and Defendant Virginia Outdoors Foundation – are conservation groups that entered into written agreements in 1988 and […]

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