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Justice Stephen R. McCullough

Dispute resolution concept
May 27, 2022

Trust not subject to mandatory arbitration

The denial of a trustee’s motion to compel arbitration pursuant to a clause in the trust has been affirmed by the Virginia Supreme Court. The court concluded that a trust is not a contract subject to mandatory arbitration under the Virginia Uniform Arbitration Act, or VUAA, and the Federal Arbitration Act, or FAA. Furthermore, a […]

All-Terrain Vehicle (ATV)
May 2, 2022

Homeowner’s coverage for ATV denied

The Supreme Court of Virginia reversed a lower court’s ruling and denied homeowner’s insurance coverage for an all-terrain vehicle, or ATV, after determining the vehicle did not qualify as a “farm type vehicle.” The Pittsylvania County Circuit Court had previously ruled in favor of coverage due to “ambiguous” language in the insurance contract. Virginia Supreme […]

Apr 27, 2022

No arbitration of trust dispute

Neither the Virginia Uniform Arbitration Act nor the Federal Arbitration Act compel arbitration of the parties’ trust dispute. Both statutes provide for arbitration of contracts. A trust is not a contract. Moreover, a trust beneficiary is not a party to an arbitration agreement. As a result, a provision in the FAA that requires arbitration, if […]

Apr 26, 2022

No homeowners’ coverage for ATV

A homeowners’ policy does not provide coverage for appellee’s accidental injuries sustained while riding on an all-terrain vehicle. Insurance coverage is unavailable because the ATV does not qualify as a “farm type vehicle.” Background Diamond Jones was a passenger on an ATV. The Rekowskis owned the ATV. Their daughter was driving it when a tree […]

Feb 28, 2022

Court properly apportioned personal injury settlement

Where the Virginia Department of Medical Assistance Services asserted a Medicare lien of more than $96,000 on appellant’s $370,000 personal injury settlement, the evidence supports the trial court’s reduction of the lien to $85,000. Contrary to appellant’s argument, there are no federal cases that compel the use of a formula that would have further reduced […]

Feb 14, 2022

Failure to produce translator was not constitutional error

There was no Confrontation Clause violation when the commonwealth did not produce at trial the on-scene officer who translated questions and answers when appellant, whose native language is Spanish, was being interviewed “concerning the possible sexual abuse of his underage stepdaughter.” Background Detective Loving interviewed Cortez-Rivas as part of a sex crime investigation. Officer Gomez [[...]

Jan 18, 2022

Unlawful force used to expel police officer from premises

Appellant’s argument that she used lawful force to expel a police officer from her premises is not well taken. She did not ask the officer to leave before she attempted to force him from her doorway. The Court of Appeals correctly upheld appellant’s conviction of battering a police officer. Overview Officer Reed was dispatched to […]

Jan 11, 2022

Easement owners necessary parties in boundary dispute

Where the owners of an easement over a riparian area were not made parties to litigation involving the land that was subject to the easement, the circuit court’s judgment in that litigation is void. Because the litigation involved the easement owners’ property interest, and no party to the litigation sought to protect that interest, the […]

Aug 24, 2021

Malicious prosecution claim stated in zoning matter

Where plaintiffs alleged defendants presented false information about alleged zoning violations, which resulted in criminal charges that were later dismissed, the circuit court erred by dismissing plaintiffs’ malicious prosecution claim but correctly sustained a demurrer regarding an abuse-of-process claim. Criminal matter dismissed Mathews County notified the Eubanks of two zoning violations. T[...]

Jun 29, 2021

Appeal notice adequately identified case at issue

Even though appellant’s appeal notice identified the commonwealth as the appellee instead of a county prosecutor’s office, the county’s general appearance in the matter waived any defect in the notice. The Court of Appeals erred by ruling that the notice was “fatally defective.” Prior proceedings Appellant Nicholson was convicted in Albemarle General District Court for […]

Jun 2, 2021

Written order awarding costs entered too late

Where the circuit court entered a nonsuit order and ruled from the bench 20 days later that defendants would be awarded costs, Rule 1:1(a) barred the court from entering the written order for costs because more than more than 21 days had passed after the nonsuit order was entered. Background Plaintiff Kosko nonsuited a medical […]

May 29, 2021

Nonsuit costs are nixed by late order

The Supreme Court of Virginia has blocked a $20,000 award of costs to medical malpractice defendants after the plaintiff took a mid-trial nonsuit, ruling the order granting costs came more than 21 days after the nonsuit order. The May 20 decision sharpens the bite of Virginia’s so-called 21-day rule barring further court action 21 days […]

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