Opinion Digests

Civil Procedure - Foreign Judgment - Service Of Process - Fla. Law

By Deborah Elkins
December 3, 2008

Although the Florida address for decedent’s son was listed as the address for decedent as registered agent of “McAuliffe Properties Inc.,” service on the son was no good under Florida law and the Fairfax Circuit Court sets aside a 1999 Florida default judgment docketed against decedent in Virginia in 2007.
Gosp v. McAuliffe (Fairfax Cir.Ct.) (VLW […]

Civil Procedure - P.I. Suit - Police Report - SDT

By Deborah Elkins
December 2, 2008

In this wrongful death action by the family of decedent passenger, the Fairfax Circuit Court quashes a subpoena duces tecum in which the parents sought the criminal investigation file supporting the decision not to prosecute any of the civil defendants.
Singh v. Agbemble (Fairfax Cir.Ct.) (VLW 008-8-250) (4 pp.)

Contract - Government - False Claims Act - Qui Tam Suit

By Deborah Elkins
December 1, 2008

An Abingdon U.S. District Court denies the motion of a nurse who filed a qui tam suit alleging defendant health care corporation engaged in Medicare fraud at the geriatric/psychiatric unit of a hospital in Kingsport, Tenn., asking the Abingdon court to reconsider a portion of her claim dismissed by the multidistrict litigation court that remanded […]

Employment - ERISA - Attorney’s Fees - Exhaustion

By Deborah Elkins
December 1, 2008

A plaintiff who won his ERISA case cannot bill for time spent exhausting administrative remedies, but the Charlottesville U.S. District Court refuses to categorically condemn “block billing” or “lumping of time entries.”
McIntyre v. Aetna Life Ins. Co. (USDC-WD) (VLW 008-3-520) (7 pp.)

Civil Procedure - Discovery - Real Estate Sale - Environmental Contamination

By Deborah Elkins
December 1, 2008

In this litigation over a seller’s remediation efforts on a parcel of Richmond real estate, a Fairfax Circuit Court says the seller must hand over a number of documents involving communications between the seller and its remediation contractor, despite the seller’s use of blanket labels of “privileged and confidential” and “Confidential Work Product” on the […]

Medical Malpractice - Expert Witnesses - Limit

By Deborah Elkins
December 1, 2008

In this failure-to-diagnose Lyme disease case in which plaintiff has hired three experts and defendant has eight, including five experts on the standard of care, a Norfolk Circuit Court says defendants can call a total of five experts.
Defendants claim a statutory right to present cumulative expert testimony under Va. Code § 8.01-581.20(C). This subsection was […]

Civil Procedure - Res Judicata - Claim-Splitting - Sanctions

By Deborah Elkins
December 1, 2008

A real estate financing company that lost a 2006 suit with a former business associate has its later suit against the associate dismissed as barred by res judicata, and the Fairfax Circuit Court sanctions the lawyer hired to bring the second suit for $25,626 under Va. Code § 8.01-271.1.
Defendant Karen Canellis and plaintiff Gray Diversified […]

Attorneys - Legal Malpractice - Divorce - Expert Opinion

By Deborah Elkins
December 1, 2008

A Fairfax Circuit Court refuses to dismiss an unhappy husband’s legal malpractice suit against his divorce lawyer because plaintiff husband does not have an expert witness.
Plaintiff was unhappy with the outcome of his divorce representation and the size of the lawyer’s legal bill. When the lawyer sought to collect the outstanding portion of the bill, […]

Real Estate - Fraud - Easement Disclosure - Neighbors’ Contract

By Deborah Elkins
December 1, 2008

Two sisters whose contractor neighbor on the adjacent lot agreed to build a house on the sisters’ lot, but who allegedly did not learn of an easement the contractor added before closing that kept the sisters from using one-third of their lot, can pursue their fraud claim against the contractor neighbor, a Fairfax Circuit Court […]

Real Estate - Contract - Deposit With Auctioneer

By Deborah Elkins
December 1, 2008

A real estate buyer proved fraud by showing defendant auctioneer put the buyer’s deposits in a trust account and promptly wrote checks covering his own expenses for much of those funds; a Norfolk Circuit Court awards the buyer $10,000 in nominal damages, $3,500 in punitive damages and $12, 962 in attorney’s fees and costs.
Plaintiffs allege […]

Negligence - P.I. Suit - Lawyer Lien - Notice

By Deborah Elkins
December 1, 2008

A lawyer who claims a lien on a client’s personal injury settlement may amend his pleadings to assert that he gave written notice of his claim of statutory lien under Va. Code § 54.1-3932, as indicated in correspondence attached as an exhibit, a Norfolk Circuit Court holds.
Plaintiff lawyer, who uses the trade name “The Hammer,” […]

Workers’ Comp - Limitations - Claim By Letter - Slip & Fall

By Deborah Elkins
December 1, 2008

A truck driver who slipped and fell on ice while making a delivery in February 2004, and who initially received workers’ comp for his scalp laceration and cervical strain, filed a valid claim for back injury through correspondence from his lawyer in December 2005, the Court of Appeals holds.
Employer essentially presents two litigable questions on […]

Bankruptcy - Social Security - Setoff Recovery - Tax Refund

By Deborah Elkins
December 1, 2008

A Roanoke U.S. Bankruptcy Court denies debtors’ request for recovery of a setoff by the U.S. Social Security Administration of debtors’ 2006 federal tax refund against money debtors owed SSA for overpayment of benefits from 2005 until 2004.
Debtors assert their right to step into the trustee’s position under 11 U.S.C. § 547 and 11 U.S.C. […]

Bankruptcy - Plan Confirmation - Ch. 13 - Vehicle Surrender

By Deborah Elkins
December 1, 2008

A debtor’s payments to the Chapter 13 trustee on the 2000 Lincoln LS that she originally intended to retain and the trustee should forward those payments to the dealer for whom the vehicle is collateral before the plan can be confirmed, a Lynchburg U.S. Bankruptcy Court holds.
The issue before the court is whether a Chapter […]

Bankruptcy - Ch. 7 - Abuse - Means Test

By Deborah Elkins
December 1, 2008

A Lynchburg U.S. Bankruptcy Court denies the U.S. Trustee’s motion to dismiss debtor’s case as an abuse of Chapter 7.
Section 707(b)(1) provides that a court may dismiss an individual case under chapter 7 if the debts are primarily consumer and it would be an abuse of Chapter 7 to grant relief to the debtor. Here, […]

Bankruptcy - Debt Discharge - Student Loan - Mental Illness

By Deborah Elkins
December 1, 2008

With further fact-finding as directed by the district court, this Harrisonburg U.S. Bankruptcy Court holds that debtor, who suffers from paranoid schizophrenia and HIV, failed to establish a history of regular payments of his student loans and cannot demonstrate that his illnesses prevented him from making further payments after 2001, and debtor fails to qualify […]

Employment Discrimination - Race - Title VII - Garbageman

By Deborah Elkins
December 1, 2008

An African-American garbageman has alleged sufficient material facts related to his hostile environment claim based on a white truck driver’s calling him a “n–” and refusing to work with him, according to a Roanoke U.S. District Court.
Defendants do not challenge that the harassment was unwelcome and based on race. The court finds that genuine issues […]

Negligence - Slip & Fall - Statutory Employee

By Deborah Elkins
December 1, 2008

An employee of a trucking company who fell off a ladder as he attempted to use a tarpaulin to cover a load of transformers to be delivered for defendant manufacturer was a “statutory employee” of the manufacturer barred by Virginia’s workers’ comp statute from suing the manufacturer for negligence, a Roanoke U.S. District Court holds.
The […]

Attorneys - Sanctions Under Rule 11 - RICO Complaint

By Deborah Elkins
December 1, 2008

A Charlottesville U.S. District Court denies sanctions under Fed. R. Civ. P. 11 to defendant civic association who contends plaintiffs and their lawyer knew when they filed an amended complaint that their RICO claims were not warranted under existing law or a good faith argument for a change in the law; in fact, plaintiffs’ complaint […]

Employment - ERISA - Attorney’s Fees - Exhaustion

By Deborah Elkins
December 1, 2008

A plaintiff who won his ERISA case cannot bill for time spent exhausting administrative remedies, but the Charlottesville U.S. District Court refuses to categorically condemn “block billing” or “lumping of time entries.”
While it is not the universal rule among the circuits, in this circuit at least, attorney’s fees incurred in pre-litigation administrative proceeding are not […]

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