STATUTE OF LIMITATIONS
- Personal Property5 YearsVa. St. § 8.01-243(B)
- Personal Injury/Death2 YearsVa. St. § 8.01-243(A)
- Breach of Contract/Written5 YearsVa. St. § 8.01-246(2)
- Breach of Contract/Oral3 YearsVa. St. § 8.01-246(4)
- Breach of Contract/Sale of Goods4 YearsVa. St. § 8.2-725
- Statute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property5 YearsVa. St. § 8.01-250*
- Breach of Warranty/U.C.C./Personal Injury2 YearsVa. St. §§ 8.01-243, 8.01-246
- Breach of Warranty/U.C.C./Property Damage4 YearsVa. St. § 8.1A-101, et seq., Va. St. § 8.2-725
- Workers’ Compensation2 YearsVa. Code Ann. § 65.2-309
- Strict Product Liability/Personal Injury2 YearsVa. St. § 8.01-243(A)
- Strict Product Liability/Property Damage5 YearsVa. St. § 8.01-243(B)**
Statute of Limitations Exceptions
*5 years for improvement to real property for injuries resulting from ordinary building materials. The statute excludes manufacturers or suppliers of equipment or machinery installed in real property. Va. St. § 8.01-250.
**4 years if property subject to contract is damaged. Va. St. § 8.2-725.
Contributory Negligence/Comparative Fault
Pure Contributory Negligence: Damaged parties cannot recover any damages if it is even 1% at fault. If plaintiff contributes to his damages, he will be barred from all recovery. Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).
Med Pay/PIP Subrogation
Med Pay: No. Virginia law prohibits inclusion of bodily injury subrogation clauses in auto insurance policies. Va. St. § 38.2-2209. Therefore, Med Pay cannot be subrogated. The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. Va. St. § 8.01243(A) (1987).
PIP: No. PIP medical benefits may not be subrogated. Va. St. § 38.2-2209. PIP wage loss benefits can be subrogated.
“Add-On” PIP State. No limitations on tort claims. Note that Va. St. § 38.2-2231 requiring arbitration of claims between insurers deals only with disputed claims made for auto physical damage between them, not PIP and/or Med Pay subrogation.
Automobile and Property: Pro-Rata. 14 Va. Admin. Code § 5-400-80 provides: “Insurers shall, upon claimant’s request, include first-party claimant’s deductible, if any, in subrogation demands. Subrogation recoveries shall be shared on proportionate basis with first-party claimant, unless deductible amount has been otherwise recovered. No deduction for expenses can be made from deductible recovery unless outside attorney is retained to collect such recovery. The deduction may then be for only pro-rata share of allocated loss adjustment expense.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Made Whole Doctrine
In P.R.C., Inc. v. O’Bryan, 1998 WL 972277 (Va. Cir. Ct. 1998) (unpublished opinion), P.R.C. sought reimbursement of certain medical and other expenses which it had paid on behalf of O’Bryan, its employee, under P.R.C.’s salary continuation and medical reimbursement Plan, when O’Bryan was injured in an automobile accident. Id. This self-funded Plan operates as a short-term disability policy, and P.R.C. did not purchase insurance in order to satisfy its obligations under the Plan. The Plan provided, in part:
If you … sustain a personal injury caused by a third party and P.R.C. pays for medical treatment related to that injury, then P.R.C. reserves the right to recover the monies it paid for such treatments and any monies paid by the third party responsible for the injury or the third party’s insurance company to compensate you for the injury. Id.
O’Bryan later executed a reimbursement agreement, by which he agreed to pay or caused to be paid to P.R.C. out of any such third-party recovery up to the $32,918 in short term disability benefits and medical expenses which his employer had paid under the Plan. O’Bryan filed suit and asked P.R.C. to participate with him but P.R.C. took no part in the litigation. The suit was settled for $45,000. O’Bryan received $27,435 in net proceeds after payment of attorney’s fees and costs, and did not reimburse P.R.C. for any of the expenses P.R.C. paid pursuant to the Plan. O’Bryan claimed the reimbursement agreement was invalid under § 38.2-3405, but the court found the Virginia Anti-Subrogation Statute was not applicable in this case because the Plan was a self-funded employee benefit Plan that was regulated by ERISA. Id. After determining that the anti-subrogation statute did not apply and P.R.C. could pursue its subrogation and reimbursement rights, O’Bryan claimed the Made Whole Doctrine prevented P.R.C. from subrogating. The court rejected this argument because P.R.C. was seeking reimbursement and not subrogation and the made whole argument because P.R.C.’s express contractual subrogation right to any monies paid to O’Bryan from any third-party tortfeasor overrode the Made Whole Doctrine. The court noted that other cases have held a reference in a subrogation clause that the insurer is subrogated to “any” or “all” rights of recovery overrides the Made Whole Doctrine. Fields v. Farmers Ins. Co., 18 F.3d 831 (10th Cir. 1994). There is authority in the Virginia case law for the proposition that the Made Whole Doctrine may be overridden by specific policy language to the contrary. Geraldine Simmons Collins v. BlueCross & BlueShield of Va., 193 S.E.2d 782, 784-785 (Va. 1973).
Economic Loss Doctrine
Minority Rule. In Virginia, the ELD must be used hand-in-hand with the “Source-of Duty” Rule to determine whether economic loss can be recovered in tort. A party cannot sue under Virginia law for economic losses without establishing privity of contract. Kaltman v. All Am. Pest Control, Inc., 706 S.E.2d 864 (Va. 2011). Another case and its progeny ruled that a plaintiff cannot sue in tort for a duty assumed solely by contract. Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 507 S.E.2d 344 (Va. 1998). The ELD does apply to real property and home sales/construction. Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55 (Va. 1988). It also applies to negligent performance of a contract. Gerald M. Moore & Son, Inc. v. Drewry, 467 S.E.2d 811 (Va. 1996). However, despite sweeping language in early ELD cases, the Doctrine applies with significant limitations: (1) It appears that a plaintiff may sue in tort for economic damages where the plaintiff and defendant are in contractual privity; (2) It applies only to negligence and construction (negligent or innocent) fraud; and (3) It is limited to claims for purely economic loss.
In other words, in Virginia, a plaintiff may not recover purely economic damages in a tort action unless it has a contract with the defendant. Blake Constr. Co., Inc. v. Alley, 353 S.E.2d 724 (Va. 1987). When a plaintiff suffers only disappointing economic expectations assumed by agreement, contract, rather than tort law, applies. However, Virginia also has another rule, called the “Source of Duty Rule” which it applies to determine whether tort or contract law applies. Richmond Metro. Auth., supra. To determine whether an action sounds in contract or tort, the court must determine the source of the duty owed. To recover in tort, the duty breached must be a common law duty, not one existing between the parties solely by virtue of the contract. The Source of Duty Rule is related to the ELD in that both rules reflect the Supreme Court’s often-stated interest in maintaining the wall between tort and contract principles. The ELD addresses non-privity situations, while the “Source of Duty Rule” addresses situations where the plaintiff and defendant are in contractual privity. “Together, the two rules may be evolving into a more comprehensive rule simply requiring that claims arising out of agreements be resolved pursuant to contract rather than tort law. Such a rule might be called the ‘Contract Loss Rule’ and would apply whether the controlling agreement is between the plaintiff and defendant or between the plaintiff and another party.” Nicholas, The Economic-Loss and Source-Of-Duty Rules, 59 Virginia Lawyer 42 (October 2010). Damage to a product itself constitutes “economic loss” because, although damages to a product itself have certain attributes of a product liability claim, the injury suffered (failure of the product to perform properly) is the essence of a warranty action through which a contracting party can seek to recoup the benefit of its bargain. Burner v. Ford Motor Co., 2000 WL 33259938 (Va. Cir. Ct. 2000).
A tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Monterey Corp. v. Hart, 224 S.E.2d 142, 147 (Va. 1976) (subrogation denied because the lease contained “except fire” provision).
Adverse Inference: Virginia law recognizes spoliation or missing evidence inference, which provides that “[w]here one party has within his control material evidence and does not offer it, there is [an inference] that the evidence, if it had been offered, would have been unfavorable to that party.” Charles E. Friend, The Law of Evidence in Virginia § 10-17, at 338 (5th Ed. 1999); Jacobs v. Jacobs, 218 Va. 264, 269, 237 S.E.2d 124, 127 (Va. 1977) (holding principle is an inference rather than a presumption). Further, Virginia acknowledges that spoliation issues also arise when evidence is lost, altered, or cannot be produced. Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580-583, 580 S.E.2d 467, 475-476 (Va. App. 2003). A spoliation inference may be applied in an existing action if, at the time the evidence was lost or destroyed, “a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.”
In a third-party spoliation context, an employer has no duty to preserve evidence on behalf of an employee who seeks to bring a third-party claim. Austin v. Consolidation Coal Co., 501 S.E.2d 161, 163 (Va. 1998). Under the Virginia Workers Compensation Act there is no duty imposed on an employer to preserve evidence. Id. at 163-64. However, this case applies only to an employer’s duty to preserve evidence.
In Emerald Point, LLC, et al. v. Hawkins, et al., 808 S.E.2d 384 (Va. 2017), the Supreme Court of Virginia considered whether a trial judge’s adverse inference instruction regarding the spoliation of evidence was warranted when there was no indication that the defendant destroyed the evidence at issue with the deliberate intent to deprive the plaintiff of a fair opportunity to use it in pending or reasonably foreseeable litigation between the parties. The Court held that a spoliation instruction is only warranted when there is proof of the intentional destruction of evidence based on a desire to deprive the opposing party of the opportunity to use it in litigation. The Emerald Point case reminds us that we cannot assume that any party will receive an adverse inference instruction at trial simply because the opposing party destroyed evidence. As in many other jurisdictions, to receive an adverse inference instruction in Virginia, the party requesting the instruction must show that the destruction of the missing evidence was intentional.
Admission (Party or Against Interest): In general, a party’s conduct, so far as it indicates his own belief in the weakness of his cause, may be used against him as an admission, subject of course to any explanations he may be able to make removing that significance from his conduct… “conduct showing the concealment or destruction of evidential material is…admissible; in particular the destruction (spoliation) of documents as evidence of an admission that their contents are as alleged by the opponents.” 1 Greenleaf Ev. (16 Ed.), § 195, at 325; Neece v. Neece, 104 Va. 343, 348, 51 S.E. 739, 740-41 (Va. 1905); Wolfe, supra.
Damage to Public and Private Property. Liability imposed on parents when child willfully or maliciously damages or destroys public or private property. Va. Stat. § 8.0143 and § 8.01-44.
Minor’s Driving. If a parent or adult allows a minor under the age of 16 to drive a vehicle, they will be jointly and severally liable for damages resulting from that minor’s negligence. Va. Code Ann. § 8.01-64.
The limit of liability is $2,500.00. Child must be under 18-years-old.
Pure Joint and Several Liability. Joint and several liability for all tortfeasors. Va. St. § 8.01-443; Cox v. Geary, 624 S.E.2d 16 (Va. 2006).
Joint tortfeasors have a right to contribution in cases of negligence with no moral turpitude. A joint tortfeasor who settles is not subject to contribution from the others, and is not entitled to contribution unless the settlement specifically discharges or extinguishes all joint tortfeasors from liability. Va. St. § 8.01-34; Sullivan v. Robertson Drug Co., 639 S.E.2d 250 (Va. 2007).
Contribution plaintiff not entitled to contribution unless the settlement specifically discharges all joint tortfeasors from liability. Va. St. § 8.01-35.1.
Right of contribution arises when one tortfeasor has paid claims for which another wrongdoer is also liable. Insurer making settlement of claim against its insured is subrogated to his right of contribution. Nationwide Mutual Ins. Co. v. Minnifield, 196 S.E.2d 75 (Va. 1973).
Insurance company that has both subrogation and contribution rights arising out of same accident may assert these rights separately. Nationwide Mut. v. Jewel Tea Co., 202 Va. 527, 118 S.E.2d 646.
The three (3) year statute of limitations is from the date of payment of judgment or settlement. Va. St. § 8.01-246(4) (Implied Contract); Gemco-Ware, Inc. v. Rongene Mold, 360 S.E.2d 342 (Va. 1987).
Suspension of Drivers' Licenses
Administrative Suspension: Any person involved in an accident resulting in injury, death or property damage, must stop and report the accident to the police. Failure to do so will result in suspension of the driver’s license. Va. St. § 46.2-894; Va. St. § 46.2-901. License will be suspended for a time period not to exceed six months. Va. St. § 46.2-901.
Judgment: The Commissioner will suspend the license of a judgment debtor, upon application of the judgment creditor, if the debtor has failed to satisfy any judgment within thirty (30) days following the entry of a judgment. Va. St. §§ 46.2- 417 and 418. Suspension will stay until the judgment is satisfied. Va. St. §46.2-427.
Contact Information: Commonwealth of Virginia, Department of Motor Vehicles, P.O. Box 27412, Richmond, VA 23269, (804) 497-7100, https://www.dmv.virginia.gov/#/.
Prohibits Broad Indemnity. Applies to Construction Contracts. Va. Code § 11-4.1.
Not applicable to validity of insurance contract or workers’ compensation issue.
Diminution of Value
First Party: The Virginia Supreme Court has refused to compensate an insured for the loss of his new car warranty where the policy did not make such an agreement and the diminution in value was not recoverable under the policy. Bickel v. Nationwide Mut. Ins. Co., 143 S.E.2d 903 (Va. 1965).
Third Party: Where an auto has been damaged but not totally destroyed and it is reasonably susceptible of repairs, the measure of damages is the cost of repairs and any diminution of the auto’s market value which results from the car having been injured after the repairs; that is, the cost of repairs plus any amount of depreciation in value of the vehicle as repaired. Averett v. Shircliff, 237 S.E.2d 92 (Va. 1977).
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication. Va. Code Ann. § 19.2-62.
Under the applicable Virginia statute, an “aggrieved party” may be awarded restitution if they suffered a loss or damages due to the criminal defendant’s conduct, which resulted in a conviction. Va. St. § 19.2‐305. Per the associated case law, if an insurer pays their insured as the “victim” of the criminal conduct, they will qualify as a “victim” for purposes of being awarded restitution. Alger v. Commonwealth of Virginia, 450 S.E.2d 765, 767 (Va. Ct. App. 1994).
Health and Disability Insurance
Statute of Limitations: 2 Years. Va. St. § 8.01-243(A).
Subrogation of Medical Benefits* are not allowed and the Subrogation of Disability Benefits are allowed. Whitlinger v. Continental Cas. Co., 129 F.Supp.2d 924 (E.D. Va. 2001). *Arguable subrogation of medical benefits is permissible when person who receives benefits was neither a resident of nor employed in Virginia. See Va. St. § 38.2-3405. Made Whole does not apply. PRC, Inc. v. O’Bryan, 47 Va. Cir. 81, 1998 WL 972277 (Va. Cir. Ct. 1998). Common Fund applies. duPont v. Shackelford, 235 Va. 588, 595, 369 S.E.2d 673, 677 (Va. 1988) (applies only where insurer has not retained separate counsel).
Funeral Procession Traffic Laws
Virginia law gives a funeral procession a general right-of-way on any street through which it passes if it is traveling under a police or sheriff’s escort. It is not explicit with respect to the issue of traffic signals or signs. It authorizes localities to provide police escort service and impose reasonable fees to defray costs. No vehicle may join, pass through, or interfere with the funeral procession. Va. Code Ann. § 46.2-828.
Statute of Limitations: 2 Years. Va. Code Ann. § 65.2-309.
Can Carrier Sue Third Party Directly: Yes.
Recovery from UM/UIM Benefits: Employer’s Policy Only.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: First dollar reimbursed to carrier, less pro-rata fees.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Yes, a carrier is reimbursed attorney’s fees on each payment.
Auto No-Fault: No.
Dog Bite Laws
Recognizes common law duty of exercising ordinary care to protect other persons from injuries that might be inflicted by his dog and was subject to civil liability for breach of that duty. Dog owner must have prior knowledge of dog’s dangerous propensity, unless owner negligent or broke the law. Butler v. Frieden, 158 S.E.2d 121 (Va. 1967).
Employee Leasing Laws
Both the employee leasing company and the client company are afforded protection by the exclusive remedy provisions of the Virginia Workers’ Compensation Act. Va. St. § 65.2-803.1.6.
Condominium Waiver of Subrogation Laws
Condo instruments may require association to obtain a master casualty policy and master liability policy. Waiver of subrogation not required. Va. Code Ann. § 55-79.81.
In a recent Supreme Court decision the insurance policy, the residential lease, and the Association’s governing documents all show that the Association did not intend to assume or absolve liability for the negligent acts of a unit owner’s tenants that caused the Association to suffer a loss. It is equally clear that the Association did not intend to subvert Erie’s ability to thereafter recover from a tenant whose purported negligence necessitated the insurer’s payments for that loss. Therefore, the unit owner’s tenant was not an implied insured of the Association. Erie Ins. Exchange v. Alba, 2020 WL 2763588 (Va. 2020).
Automobile Total Loss Thresholds
Percentage of Value: 75%
Cost to repair late model vehicle exceeds 75% of ACV prior to vehicle being damaged, then vehicle is issued a non-repairable certificate or a salvage certificate. Va. Code Ann. § 46.2-1602.1.
Sudden Medical Emergencies While Driving
Sudden Medical Emergency Defense. Where the driver of an automobile is suddenly stricken by an illness, which he has no reason to anticipate and which renders it impossible for him to control the car, he is not chargeable with negligence. Brinser v. Young, 158 S.E.2d 759 (Va. 1968).
Court refuses to give the Unavoidable Accident Instruction since it merely repeats the law of negligence. But, the Sudden Medical Emergency Instruction adds new considerations to the negligence equation. Hancock-Underwood v. Knight, 670 S.E.2d 720 (Va. 2009).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Virginia Tort Claims Act. Va. St. § 8.01-195.1 to 195.9 (1981).
Provides a limited right to sue State employee when a private entity or individual would be liable, provided the State employee is acting in course and scope.Only partial waiver of sovereign immunity.
Commonwealth is immune from tort liability for acts of employees, unless an express statutory or constitutional provision waives that immunity. Immunity of judges, attorneys, and public officers of Commonwealth is preserved.
Notice Deadlines: Notice must be given within one year of when claim accrued. Va. St. § 8.01-195.6. Claim filed with Director of the Division of Risk management or the Attorney General. Must contain nature of claim, time and place, name of agency at fault. Must sue within 18 months of filing notice. Va. St. § 8.01-195.7.
Claims/Actions Allowed: Commonwealth employee is immune if act ministerial (follows statute or established rules), but not discretionary (use of judgment). Messina v. Burden, 321 S.E.2d 657 (Va. 1984). Claims allowed include:
Maintenance: Failure to correct hazardous roadway conditions within reasonable time.
General Hazards: Hazards created by design, construction, and maintenance problems (e.g., poor signing, low shoulders).
Work Zones: Hazardous construction and work zones (involving motor vehicles).
Operations: Hazards created by general operations and work zone activity that do not involve motorists.
Operating Motor Vehicle: Is ministerial act.
Heider v. Clemons, 400 S.E.2d 190 (Va. 1991).
Comments/Exceptions: Exceptions to waiver of immunity are listed in Va. St. § 8.01-195.3.
(1) Tax assessment;
(2) Judicial Proceeding; and
(3) Execution of Court Order.
Claims against Commonwealth for medical negligence subject to Chapter 21.1 (Va. St. § 8.01-581.1, et seq.). Recovery in medical malpractice shall not exceed the limits imposed by Va. St. § 8.01-195.3. Immunity waived only for ministerial acts (obedience to authority without regard to or the exercise of his or her own judgment) but not for discretionary acts, which have the following characteristics:
(1) an authorized individual or agency was given the power and duty to make a decision;
(2) the decision was made from a set of valid alternatives; and
(3) the individual or agency exercised independent judgment in making the selection.
No exception for intentional acts. No immunity if intentional tort or actions outside scope of employment. Bailey v. Lewis, 2012 WL 9735223 (Va. Cir. Ct. 2012); Messina v. Burden, 321 S.E.2d 657 (Va. 1984).
Damage Caps: Immunity is waived up to $100,000 or the amount of the State’s insurance coverage, whichever is greater, exclusive of interest and costs. Va. St. § 8.01-195.3.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer may (1) offer a replacement vehicle including all applicable taxes, license fees, or other fees, or (2) offer a cash settlement based on the actual cost of a comparable vehicle including all applicable taxes, license fees, or other fees. Insurance Order No. 11607. Insurers have been cited for not promptly reimbursing sales tax, license fees, and title fees under Va. Code Ann. § 38.2-510. https://www.scc.virginia.gov/boi/adminords/11607.pdf.
Third-Party Claims: “Insurers are only required to reimburse for sales tax, title fees, and transfer fees in third-party claims if the policy so requires.” E-mail from Virginia Bureau of Insurance. However, no other applicable statute, case law, or regulation governing recovery of sales tax besides Insurance Order No. 11607. Insurers have been cited for not reimbursing sales tax to a third-party total loss claim under Va. Code Ann. § 38.2-510. https://www.scc.virginia.gov/boi/adminords/11607.pdf.
Damage to Property Without Market Value
Service Value: “We are of the opinion that the full cost of replacement is not the proper measure of damages.” Younger v. Appalachian Power Co., 202 S.E.2d 866 (Va. 1974) (court lays out four part test used to determine damages).
Intrinsic Value: No recovery for “peculiar value” attached to family portraits. C & O Ry. Co. v. May, 92 S.E. 801 (Vt. 1917).
Sentimental Value: Owners of personal property are not entitled to recover “any sentimental value attached to it by the owners or any peculiar value which they may have attached to the property by reason of association or the like.” C & O Ry. Co. v. May, 92 S.E. 801 (Vt. 1917).
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Doctrine of sovereign immunity has not lost its vitality in Virginia. Va. St. § 8.01-195.3; Messina v. Burden, 321 S.E.2d 657 (Va. 1984).
Notice Deadlines: Notice of claim must be given within six (6) months of accrual. Va. St. § 8.01-195.3.
Claims/Actions Allowed: Municipal corporations are immune from liability when performing governmental functions, but are not when exercising proprietary functions. Niese v. City of Alexandria, 564 S.E.2d 127 (Va. 2002); T Jean Moreau & Assocs. v. Health Ctr. Comm’n, 720 S.E.2d 105 (Va. 2012). Liable only for gross negligence in operation of pols, parks, playgrounds. Va. St. § 15.2-1809.
Comments/Exceptions: Counties viewed as “political subdivisions” of Commonwealth and entitled to same immunity. Mann v. Arlington County Bd., 98 S.E.2d 515 (Va. 1957) (no governmental-proprietary distinction). Cities receive reduced immunity. May be liable if proprietary function, immune if governmental function. Hoggard v. City of Richmond, 200 S.E. 610 (Va. 1939).
Damage Caps: No caps for local government. Va. St. § 8.01-195.3.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No person may operate a vehicle while using a hand-held personal communication device to write, send, or read any text message or email. Exceptions include when vehicle is parked or in emergency situations. Va. St. § 46.2-1078.1-A.
Provisional license holders may not operate a vehicle with any cell phone, even if it is hands-free, unless the vehicle is parked or for emergency situations. Va. St. § 46.2-334.01.
Other Prohibitions: It is unlawful for anyone to operate a motor vehicle while using earphones on or in both ears. Exceptions include devices to aid hard of hearing, earphones in helmets for communication and “non-prosthetics, closed-ear, open back, electronic noise-cancellation devices for persons operating vehicles in high noise areas.” Va. St. § 46.2-1078.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly mentions and includes aliens. Va. Code Ann. § 65.2-101-1(a).
Case Law: Jose Granados v. Windson Development Corp., 509 S.E.2d 290 (Va. 1999); Rios v. Ryan Inc. Cen., 542 S.E.2d 790 (Va. 2001).
Comments/Explanation/Other: At the time of Granados, the workers’ compensation statute excluded illegal aliens, and thus denied his benefits, but in 2000; the legislature amended the statute to include them. Rios held that because the claimant was an illegal alien at the time he attempted to contract for hire, he presented false papers, thus the employment contracts were void.
Admissibility of Expert Testimony
Admissibility Standards: Other
Case/Statutory Law: Va. Code Ann. § 8.01-401
Comments: Expert testimony generally admissible if it will assist trier of fact in understanding evidence. Admissibility is subject to basic requirements, including requirement that evidence be based on adequate foundation.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver will not be imputed to an owner in owner’s action against third party for full value of damaged vehicle operated by permissive user, unless they are in joint venture. Carroll v. Hutchinson, 200 S.E.2d 644 (Va. 1939).
Vicarious Liability/Family Purpose Doctrine: The Supreme Court in Virginia has specifically rejected the Family Purpose Doctrine. Hackley v. Robey, 195 S.E2d 689 (Va. 1938).
Sponsor Liability for Minor’s Driving: No sponsorship liability statute. However, under Va. Code Ann. § 8.01-64, a parent or adult allows that allows a minor under the age of 16 to drive a vehicle, will be jointly and severally liable for damages resulting from that minor’s negligence.
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. Va. St. § 8.01-243(A). Discovery Rule applies.
Liability Standards: Negligence, Warranty.
Fault Allocations: Pure Contributory.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Yes.
Innocent Seller Statute: No.
Joint and Several Liability: Yes. Va. St. § 8.01-443.
Available Defenses: Assumption of Risk; Presumption; Misuse; Alteration; Learned Intermediary; Sophisticated User.
Restatement 2nd or 3rd?: Neither.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Va. Stat. § 46.2-1071. (Does not require removal of keys but does require engine to be turned off).
Common Law Rule: No case exactly on point, but in Interim Pers. of Cent. Va., Inc. v. Messer, 559 S.E.2d 704 (Va. 2002), an employee stole a truck from the employer, went out drinking, and subsequently injured a third party in an accident. The court primarily focused on issues of negligent hiring and foreseeability. The court ruled that the company had no reason to suspect that employee had a DUI history and that it was not foreseeable that he would steal a company vehicle to go out drinking.
Where a plaintiff has contracted to protect the defendant from a loss by procuring insurance, the plaintiff (or his subrogee) may not recover for that loss from the defendant even if the loss is caused by the defendant’s negligence. Walker v. Vanderpool, 302 S.E.2d 669 (Va. 1983). ASR applies to insurers, not self-insurers. Farmers Ins. Exch. v. Enter. Leasing Co., 708 S.E.2d 852 (Va. 2011). However, a self-insurer can be ruled to be an insurer if certain criteria are met. See Group Hospitalization Medical Service, Inc. v. Smith, 372 S.E.2d 159 (Va. 1988).
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Va. Stat. § 38.2-510(c).
Summary: The insurer must give the insured written notification if they intend to use non-OEM parts. Any non-OEM parts must be of equal quality and kind to their OEM equivalent. The insured must also be informed that the non-OEM parts are warranted by their manufacturer, not the auto’s manufacturer.