eNotes: Liability – July 2020

CLIENT ADVISORY

MARYLAND CLIENT ADVISORY

Effective October 1, 2020, HB 108 increases a condominium unit owners’ deductible from $5,000 to $10,000 when the cause of damage originates in a specific unit.

Recent amendments to the Real Property code will double the responsibility of individual unit owners when the cause of damage to the condominium originates from an individual unit. When the statute was originally enacted, individual unit owners were responsible for the first $5,000 of the loss. Effective October 1, 2020, individual unit owners are now responsible for the first $10,000.

This amendment was passed in part to alleviate the stress on the condominium’s master policy. Increasingly, condominium associations have found that their master policy contained a higher deductible than $5,000, causing the condominium council of unit owners to tap into their reserves or levy additional fees onto the other unit owners for damages that were often the result of unit owner neglect. Lawmakers hope the increase in the deductible will encourage unit owners to keep their units in adequate condition and alleviate the need for the master policy to absorb these losses.

A second portion of HB 108 seeks to clarify that costs associated with damaging events that occur outside an individual’s unit, in either the common elements or “an event outside of the condominium units and common elements,” are borne by the council of unit owner’s property insurance. These costs are considered a common expense.

Questions about this statutory update can be directed to Lauren Upton, at (443) 641-0572 or lupton@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Trigg v. Children’s Hosp. of Pittsburgh of UPMC
Pennsylvania Supreme Court
No. 3 WAP 2019
Decided: April 22, 2020

Challenge for cause waived when attorney failed to request that the Trial Judge, absent during Voir Dire, view prospective juror’s demeanor.

Background

Plaintiffs filed a medical malpractice action against CHOP of UPMC after their four-year-old child was injured when the minor fell out of an adult sized bed due to large spaces between the vertical side rails. The minor had just undergone cranial surgery.

While the Trial Judge was not present during jury selection, one of the prospective jurors was extensively questioned after she disclosed that her sister and brother-in-law were doctors and her mother-in-law was a nurse. Although she thought she could be fair and impartial and follow the court’s instructions, she indicated that if it was “a close call” she may tend to favor the medical professionals. Plaintiffs’ attorney asked the Court to review the transcript of the colloquy, but did not request that the Trial Judge view the juror’s demeanor before ruling on his challenge for cause.

Plaintiffs’ attorney’s challenge was denied, along with 2 others, so he used 3 of his 4 preemptory challenges on those prospective jurors and not on other jurors he would have struck but for the Court’s rulings. The jury returned a defense verdict, and the Trial Court denied Plaintiffs’ Motion for post-trial relief. The Superior Court reversed the Trial Court, and the Pennsylvania Supreme Court granted Defendant’s Petition for allowance of appeal.

Holding

Writing for the Court, Justice Todd reiterated that, “it is axiomatic that issues not raised in the lower courts are waived for purposes of appellate review, and cannot be raised for the first time on appeal.” Here, Plaintiffs’ attorney did not properly preserve the issue for appeal because: (1) no objection was made in pretrial proceedings to the Trial Judge’s absence from the Jury Assignment Room; (2) no contemporaneous objection was made to the Trial Judge’s absence during Voir Dire; (3) the Plaintiffs’ attorney’s arguments were based solely on the transcript of the earlier colloquy; and (4) he deprived the Trial Judge an opportunity to address the issue by not requesting that the Trial Judge first observe the demeanor of the juror before he denied the challenge for cause.

Questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

Walker v. Aiken
Pennsylvania Superior Court
No. 1640 WDA 2019 (non-precedential)
Decided: June 11, 2020

In an unreported decision, the Superior Court found that it was up to a jury, not a Trial Judge, to determine whether a motorist had sustained a significant impairment of a bodily function where reasonable minds could differ on the issue.

Background

This matter involves a motor vehicle accident wherein Plaintiff driver’s vehicle was struck by a vehicle driven by Defendant Aiken. At the time, Plaintiff had a “limited tort” motor vehicle insurance policy. Immediately after the accident, Plaintiff was transported to the emergency room where he was diagnosed with an acute lumbar strain. Several days later, Plaintiff returns to the emergency room with continued neck and back pain, and an MRI revealed worsening of a degenerative condition in his cervical spine. Eventually, Plaintiff had a bilateral facet joint block performed on his cervical spine.

In his suit, Plaintiff claimed that under his limited tort insurance policy, he was entitled to non-economic damages that caused him to suffer serious injuries to his back and neck. Aiken filed a Motion for partial summary judgment asserting that Plaintiff failed to present sufficient evidence to sustain a claim for non-economic damages. The Trial Court, after an evidentiary hearing, granted the Motion. On Appeal, Plaintiff argued, among other issues, that whether Plaintiff suffered a serious impairment of bodily function, sufficient to seek recovery for non-economic damages under the facts at issue, was a matter for the jury and not the Trial Judge.

Holding

The Superior Court held that the Trial Court erred in granting Defendant’s Motion for summary judgment. The Superior Court found that significant impairment of a bodily function is to be decided by a jury and not a Trial Court Judge when there are factual issues that need to be addressed.

Questions about this case can be directed to Kimberly Henderson, at khenderson@tthlaw.com.

Figueroa v. Meitzner
Pennsylvania Superior Court
No. 2580 EDA 2019
Decided: June 3, 2020

Application of hills and ridges doctrine is dependent upon jury’s determination of generally slippery conditions existing in the community.

Background

Plaintiff FedEx driver made several deliveries on the accident date before arriving at Defendant’s home to deliver a package. Despite several days of intermittent snow, as well as intermittent snow on the morning of her accident, Plaintiff had safely traversed all the prior properties that morning without slipping. A stretch of Defendant’s sidewalk passed under a grove of trees where ice would regularly accumulate. That morning a smooth sheet of ice was concealed beneath a coat of freshly fallen snow. Not suspecting this hazard, Plaintiff walked across the snow, slipped and fell, and sustained injuries. During trial, at the close of Plaintiff’s case in chief, Defendant moved for a compulsory nonsuit claiming that Plaintiff failed to prove the existence of hills and ridges in the ice. After the court denied the Motion, the jury later returned a verdict holding Defendant 60% liable and Plaintiff 40% liable.

On appeal to the Superior Court, Defendant argued that generally slippery conditions prevailed at the time of the accident, such that the common-law doctrine of hills and ridges was in effect, and Plaintiff’s testimony regarding the flatness and smoothness of the ice disproved the presence of hills and ridges. The Court noted that absent general slipperiness, the doctrine does not apply. Further, questions of credibility and conflicts in the evidence are for the jury to resolve and if the reviewing court finds any basis to support the jury’s verdict, the verdict will stand. The Court observed that Plaintiff testified that the paved surfaces of the 10 to 15 properties Plaintiff visited before arriving at Defendant’s property that morning were not slippery and even Defendant’s driveway, where Plaintiff parked her vehicle, was not slippery. As this testimony rebutted the Defendant’s presumption that general slippery conditions prevailed, there was a conflict in the evidence for the jury to decide.

Holding

In affirming the judgment of the Trial Court, the Superior Court held that the jury had the right and authority to decide whether non-slippery conditions generally existed at the time of the accident. The jury credited Plaintiff’s testimony and found that the hills and ridges doctrine did not apply. The Court dismissed Defendant’s appeal as meritless.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

Fick v. Barbon
Pennsylvania Superior Court
No. 1997 MDA 2019
Decided: May 29, 2020

Summary Judgment for Defendant where Plaintiff unsuccessfully attempted to add a new party by Amended Complaint after running of statute of limitations.

Background

Plaintiff filed a personal injury action against Defendant for an automobile accident which occurred 2 years earlier. Defendant was the owner of the vehicle, but it was operated by his grandson of a different name. After Defendant filed an Answer denying that he was the operator of the car, Plaintiff moved for leave to amend the complaint to correct the name of a party claiming that prior discussions with Defendant’s insurance carrier did not reveal the identity of the driver. The parties engaged in discovery before argument on the Motion. The Trial Court denied the Motion. Plaintiff filed a second Motion for leave to amend the complaint to name the operator as a defendant which was also denied. Defendant filed a Motion for summary judgment contending that Plaintiff’s claims should be dismissed as a matter of law. The Trial Court granted the Motion for summary judgment.

On appeal to the Superior court, Plaintiff argued two bases for abuse of discretion by the Trial Court in denying his Motions. Plaintiff first argued that the operator had notice of the lawsuit within 90 days of the running of the statute of limitations, so he would not be prejudiced by being added. The Court noted that under Pa.R.C.P. No. 1033, amendment of a complaint to simply correct the name of a party is permitted, whereas an amendment designed to substitute a new, distinct party is prohibited once the statute of limitations has expired. Plaintiff’s second argument that Defendant’s insurance carrier had concealed the identity of the driver was unsupported by the evidence. The Court observed that the Plaintiff testified at his deposition that the driver had provided his name, address, insurance information and driver’s license at the scene of the accident, so Plaintiff always knew the driver’s identity.

Holding

In affirming the judgment of the Trial Court, the Superior Court held that the Trial Court did not abuse its discretion in denying Plaintiff’s Motions to amend the complaint, because Plaintiff sought not to amend the complaint to correct a party’s name, but to amend the complaint to add a new party. Further, based upon the evidence that Plaintiff sued the wrong individual, Defendant was entitled to summary judgment as a matter of law.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

Pena v. Gran Palma, LLC
Pennsylvania Superior Court
No. 2239 EDA 2019
Decided: May 20, 2020

Defendant was not entitled to open a default judgement because it sat idle after forwarding the Complaint to its insurance carrier and did not follow up to ensure that a timely responsive pleading was filed.

Background

Plaintiff Pena filed suit via Complaint, in Lehigh County, against Defendant nightclub, restaurant and lounge alleging that he was “brutally and savagely assaulted” by employees and patrons of the business. Proper service of the Complaint was made on January 22, 2019. No responsive pleading was filed on Defendant’s behalf, and on February 11, 2019, Plaintiff served, via certified mail, a notice of his intent to enter a default judgment against it. Still, no responsive pleading was filed on behalf of Defendant, and on February 27, 2019, Plaintiff filed a praecipe for default judgment. That same day, the Lehigh County Prothonotary sent notice of the default to Defendant’s place of business. On April 3, 2019, counsel for Defendant entered his appearance and filed a petition to open/strike the default judgment.

Counsel for Gran Palma confirmed, in the petition, that service of the Complaint was properly made on January 22, 2019, and that a representative of Defendant forwarded the same to its insurance carrier several days thereafter. Though the notice of intent to enter a default judgment and the entry of default judgment were confirmed to have been delivered to unidentified representatives of Defendant, counsel for Defendant denied in that petition that the proper representatives had received notice of the same, until some point in March 2019. On July 1, 2019, the Trial Court denied Defendant’s petition, finding that it failed to present a reasonable excuse or explanation for its failure to file a responsive pleading prior to default. On appeal to the Superior Court, Defendant argued that the Trial Court had abused its discretion because it failed to take testimony, make any findings of credibility and ignored unrefuted statements contained in affidavits submitted by Defendant in support of its argument that it held a valid excuse for its failure to file a responsive pleading because its insurance carriers were “reviewing the claim.”

Holding

The Superior Court began its analysis by noting that “the proper touchstone in this arena is a ‘justifiable excuse’ that indicates that the defendant has been without fault.” The Court went on to state that “[g]enerally speaking, a default attributable to a defendant’s justifiable belief that his legal interests are being protected by his insurance company is excusable.” It also stated, however, that “[i]n addition to being justifiable, there must also be some mistake or error that is attributable to the insurance company and which results in a default judgment.” Here, the court found that Defendant did not identify “any actual or alleged mishandling of the claim by their respective insurance…carriers,” and that after sending a copy of the Complaint to their insurance agent, it “sat idle for three months awaiting some manner of coverage determination.” The Superior Court held that such inaction and failure to follow up with their insurance representatives to ensure that a timely responsive pleading was filed invalidated their claim that they justifiably relied on their insurance carrier to protect their legal interests. Accordingly, the judgment of the Trial Court was affirmed and the default judgement upheld.

Questions about this case can be directed to Sam Dunlop, at (412) 926-1432 or sdunlop@tthlaw.com.

Knepper v. Scranze
Pennsylvania Superior Court
2020 Pa. Super. Unpub. LEXIS 1610
Decided: May 14, 2020

When an order granting summary judgment does not dispose of all claims against all parties, it is interlocutory and not appealable. Further, the failure of the appellant to file the statement of errors complained of on appeal results in a waiver of all contentions on appeal even though the statement was served on the judge below and the issues were addressed in the opinion.

Background

Plaintiff sued five Defendants for breach of contract, civil conspiracy, and tortious interference with a contract. One Defendant defaulted and a judgment as to is liability was entered. Later another Defendant settled, but the claim against it was never discontinued on the record. The remaining Defendants filed Motions for summary judgment, which were granted. Plaintiff then settled and discontinued his claim against the Defendant who had defaulted. Plaintiff appealed even though the claim against the other settling party remained open on the record. The Court below issued an order requiring Plaintiff to state the matters complained of on appeal. Plaintiff complied, but he neglected to file the statement with the court. The Court nonetheless addressed the merits in its opinion.

Holding

The Superior Court quashed the appeal for two reasons. First, the summary judgment order was not final and appealable because it did not dispose of all parties and all issues. Although one party had settled before the summary judgment motion was decided, the claim against that party was never discontinued on the record. Thus, it remained open and precluded the appeal. Second, plaintiff did not follow the procedures set forth in Pa.R.A.P. 1925, which requires that the statement of issues be filed with the Court and served on the Judge. The fact that the Judge addressed the issues in the opinion did not overcome the waiver which occurred upon the failure to file the statement.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

Babbish v. Paradise Childcare Ctr.
Pennsylvania Superior Court
No. 515 MDA 2019, 2020 Pa. Super. Unpub. LEXIS 1556
Decided: May 11, 2020

Trial Court did not err in refusing to charge jury on assumption of the risk in a negligence action, as the jury was charged on comparative negligence and, therefore, Plaintiff’s negligence was a factor considered by the jury rendering the assumption of the risk charge superfluous.

Background

Plaintiff arrived at Defendant Child Care Center to pick up her grandson. Her husband pulled into an on-street parking spot in front of the Child Care Center. Snow had fallen the day before and, on the morning of the subject accident. Defendant cleared parts of the paved area in front of the building. Defendant also cleared a path from the main entrance to the street where the Plaintiff was parked, along with two additional paths from side exits of the building. Defendant deposited the cleared snow onto the un-cleared sections atop the paved surface between the building and the roads abutting the property. Plaintiff exited her vehicle and stepped over accumulations of snow deposited by Defendant on an un-shoveled part of the paved surface. Plaintiff proceeded without incident into the building, retrieved her grandson, and began her return to the car along the same route she took on her way in. As she approached the car, she slipped and fell.

Plaintiff filed suit against Defendants alleging negligence and proceeded to trial where judgment was entered against Defendants. Defendants appealed and asserted that the Trial Court erred for, among other things, failure to provide an assumption of the risk jury charge. The Trial Court informed that there is no longer a suggested jury instruction for the doctrine. While assumption of the risk has not been formally abolished by our Supreme Court, the Court acknowledged that it has fallen into disfavor, as evidenced by our Supreme Court’s attempts to abolish or limit it. Moreover, our Supreme Court has found that the complexity of analysis in assumption of risk cases makes instruction on it to juries extremely difficult. Furthermore, the Trial Court believed that a charge of comparative negligence satisfied the same purpose as an assumption of the risk charge.

The Appellate Court found that the Trial Court properly charged the jury on comparative negligence in keeping with the evidence presented, rather than deliver a confusing and disfavored assumption of the risk charge. As is recognized in the Note to the Suggested Standard Jury Instructions, there is no standard instruction on assumption of risk, because assumption of the risk is a question for the court to decide upon a non-suit motion and not a matter for jury determination in negligence actions. As a result, the Appellate Court found no clear abuse of discretion or error of law and affirmed.

Holding

Trial Court’s decision not to instruct the jury on assumption of the risk was appropriate in this negligence action where it was in keeping with the evidence presented and where the jury was charged on comparative negligence and was instructed to consider Plaintiff’s own negligence as a contributing factor to the subject accident.
Questions about this case can be directed to Jonathan Danko, at (717) 441-3957 or jdanko@tthlaw.com.
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MARYLAND CASE SUMMARY

Gables Constr., Inc. v. Red Coats, Inc.
Maryland Court of Appeals
No. 23, September Term 2019
Decided: May 26, 2020

Where a waiver of subrogation prohibits liability to the Plaintiff, the third-party defendant is not a “joint tortfeasor,” and there is no statutory right of contribution.

Background

Upper Rock, Inc. (“Upper Rock”) was the project owner of a 139-unit apartment building. Upper Rock contracted with Gables Construction (“GCI”) as the general contractor on the project. Within that contract was a waiver of subrogation which required Upper Rock to purchase property insurance and transfer all of the risk of loss for fire-related claims to the insurer. GCI contracted with Red Coats to perform a fire watch and other security services for the project. On April 1, 2014, a fire damaged the building. Upper Rock filed suit against the security guard, Shelton, on duty at the time of the fire and Red Coats. Red Coats and Shelton filed a third party action against GCI. Red Coats and Shelton settled with Upper Rock for $14 million. After settlement, Red Coats and Shelton sought contribution from GCI as part of their third-party complaint.

GCI pointed to a waiver of subrogation in its agreement with Upper Rock. GCI moved for summary judgment, arguing that the agreement insulated GCI from Red Coats. Summary judgment was denied and a jury determined GCI was a joint tortfeasor with Red Coats. On Appeal, the Court of Special Appeals affirmed Red Coats’ right of contribution. The Court of Appeals granted certiorari to consider whether a defendant can be a joint tortfeasor when it is not liable to the injured party by a waiver of subrogation.

Holding

The Court of Appeals held that where a wavier of subrogation prohibits liability to the Plaintiff, the third-party defendant is not a “joint tortfeasor” and there is no statutory right of contribution. Under the UCATA, for a right of contribution, both parties must be joint tortfeasors. A joint tortfeasor is one who is liable in tort to the Plaintiff. Here, GCI could not be liable in tort to Upper Rock because of the waiver of subrogation. Without any liability of GCI to Upper Rock, the UCATA does not provide for a right of contribution. Therefore, Red Coats cannot seek contribution from GCI.
Questions about this case can be directed to Lauren Upton, at (443) 641-0572 or lupton@tthlaw.com.
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NEW JERSEY CASE SUMMARY

Friedman v. Martinez
New Jersey Supreme Court
A-37/81 September Term 2018, 081093
Decided: June 16, 2020

Supreme Court upholds grant of summary judgment to a janitor who hid cameras in women’s bathrooms in an office building, because tenants had not offered proof that they used the restroom while a camera was in place.

Background

Defendant Martinez, a janitor at an office building, had been hiding video-recording devices in the women’s bathrooms and a locker room. Defendant supervised a night cleaning crew at a five-story office building estimated to have about fifteen women’s bathrooms. Defendant concealed cameras in some of the women’s restrooms and locker room. In 2009, an employee of a tenant of the building discovered a camera in the ceiling of a women’s bathroom. Plaintiffs, who were comprised of a group of approximately 60 women who worked in the building, filed suit against Defendant, his employer, the owner of the office building, the building’s property manager, and a security company hired by one of the tenants in the building.

Defendants moved for partial summary judgment against the Plaintiffs who could not identify themselves on any of the recordings. The Trial Court granted the motion on the basis that the Plaintiffs could not prove a camera was in a bathroom or locker room at the time they were using it. Plaintiffs appealed.

The Superior Court, Appellate Division, reversed the grant of summary judgment, holding that a claim of intrusion upon seclusion could be established by the Plaintiffs through circumstantial evidence and without actual proof they were captured on camera. Defendants appealed.

Holding

The Supreme Court of New Jersey reversed the Appellate Division and reinstated summary judgment. The Court noted that Plaintiffs did not have to present direct evidence that they were secretly recorded and could instead establish a case of intrusion upon seclusion based on reasonable inferences drawn from the evidence. In this case, however, the Court held there was not enough evidence in the summary judgment record to demonstrate, either directly or inferentially, that the Plaintiffs used bathrooms with cameras in them during the relevant time period.
Questions about this case can be directed to Michael Bishop, at (908) 574-0510 or mbishop@tthlaw.com.
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DC CASE SUMMARY

Kelleher v. Dream Catcher, LLC
United States District Court for the District of Columbia
No. 1:16-cv-02092-APM
Decided: July 31, 2019

U.S. District Court grants summary judgment to Plaintiff homeowner on breach of contract and breach of warranty claims, but denies summary judgment for Defendants regarding Plaintiff’s claims for piercing of the corporate veil.

Background

In July 2014, Plaintiff Stephen Kelleher hired Defendant, Dream Catcher, LLC (“Dream Catcher”) to renovate his Washington, D.C. home. Dream Catcher was a D.C. limited liability company with Co-Defendants Heidi Schultz and Cesar De Armas as its sole members. Under Plaintiff’s contract with Dream Catcher, the renovation was to be completed within approximately three months of July 21, 2014. Plaintiff paid Dream Catcher approximately $175,000.00 for the project. Almost a year later the project remained incomplete and in June 2015, Plaintiff and De Armas scheduled a meeting with the project architect to determine how Dream Catcher could complete the project. De Armas failed to show for the meeting. Then, in July 2015, Plaintiff’s counsel sent two letters to Dream Catcher advising of Plaintiff’s intention to terminate the contract and providing an opportunity to cure the deficiencies.

Dream Catcher did not respond to either of Plaintiff’s letters and Plaintiff terminated the contract in August 2015. Plaintiff hired a replacement contractor to complete the project for an additional $123,824.41 and then sued Dream Catcher, Schultz, and De Armas for breach of contract, breach of warranty, breach of the implied covenant of good faith and fair dealing, and unlawful trade practices under D.C.’s Consumer Protection Procedures Act (“CPPA”). Plaintiff moved for summary judgment on all counts and Defendants moved for summary judgment on the issue of whether Plaintiff could pierce the corporate veil and pursue claims against Schultz and De Armas directly. Defendants opposed Plaintiff’s Motion and argued that they were unable to timely complete the project because of delays due to staffing, weather, errors in structural drawings, a crumbling existing structure, and Plaintiff’s failure to make timely decisions. Defendants did not develop any evidence or expert testimony to support these arguments.

Holding

U.S. District Judge Amit P. Mehta granted summary judgment on Plaintiff’s breach of contract claim, finding that Dream Catcher failed to comply with their contractual obligations and made only a “half-hearted attempt to justify their actions,” and that Defendants could not produce any evidence or expert testimony as to why the delays prevented them from completing the project. Judge Mehta also granted summary judgment on the count of breach of the implied covenant of good faith and fair dealing for the same reasons. Judge Mehta denied summary judgment on the claim for breach of express warranty, because the project never reached substantial completion, a condition precedent to the warranty taking effect. Summary Judgment was denied on Plaintiff’s claim for unfair trade practices, as Plaintiff could not show any false or misleading statements and did not show any authority that a run-of-the mill breach of contract was actionable under the CPPA. Judge Mehta denied summary judgment on corporate veil-piercing, finding genuine issues of material fact existed as to whether Dream Catcher observed corporate formalities, commingled funds, or was adequately capitalized, which are three of the five factors D.C. courts apply under an alter ego theory to pierce the corporate veil.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.
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VA CASE SUMMARY

Green v. Diagnostic Imaging Assocs.
Virginia Supreme Court
2020 Va. LEXIS 61
Decided: June 4, 2020

Personal injury settlement did not bar subsequent wrongful death action in Virginia.

Background

Plaintiff brought actions in Virginia and Kentucky, alleging that decedent died as a result of medical professionals in both states failing to properly identify and treat decedent. Plaintiff’s decedent was treated at various medical facilities over three months in both Virginia and Kentucky before dying in August of 2013. Plaintiff sued several medical providers in Kentucky, alleging claims for personal injury and wrongful death. Plaintiff dismissed the Kentucky wrongful death claims, settled the personal injury claims, and dismissed the suit, with prejudice.

Plaintiff subsequently brought wrongful death and survival actions in Virginia against the Virginia providers. After some procedural wrangling, Plaintiff pursued just the wrongful death claim. Defendants moved to dismiss, arguing that the Kentucky action asserted the same injuries and, therefore, barred the wrongful death action in Virginia. Defendants also argued that the prohibition against double recovery prevented Plaintiff from splitting the single cause of action and recovering under both. The Trial Court granted the Motions to dismiss, finding that because Plaintiff chose to pursue the personal injury action in Kentucky, Virginia’s wrongful death statute, which requires plaintiffs to make an election between personal injury and wrongful death actions, prohibited Plaintiff from pursing a wrongful death action in Virginia.

Holding

A plaintiff must elect to recover under a personal injury claim or a wrongful death claim in Virginia; however, that election does not have to be made before trial. Rather, the facts at trial determines which theory the plaintiff ultimately pursues. There is no language in Virginia’s wrongful death statute that prohibits the filing of a wrongful death action in Virginia, because of the settlement of a personal injury claim in another state. Further, Kentucky allows the filing of a personal injury claim in addition to a wrongful death claim for the same injury; thus the settlement of the Kentucky personal injury claim did not operate as an election of remedies as contemplated by the Virginia wrongful death statute. Therefore, the Trial Court erred when it dismissed Plaintiff’s claims; however, any judgment received in Virginia must be reduced by the amount received in Kentucky, to the extent necessary to avoid a double recovery.

Questions about this case can be directed to Lacey Conn, at (571) 464-0433 or lconn@tthlaw.com.