In Allstate Insurance Co. v. Wade, the Supreme Court held among other things that the trial court did not err in refusing to bifurcate the trial between compensatory and punitive damages, in a case where liability was admitted. The language of the opinion suggests, however, that the circuit courts have the same discretion to order bifurcation as they do to order separate trials, which is a new point of law to many, I suspect. In addition, the Court rejected the argument that the insurer should have been allowed to try to deflate a punitive damage award by informing the jury that it and not the bad actor would be paying the punitive damages. This is an important case, I think, that trial lawyers (particularly those who handle injury cases) need to study.
In Shaheen v. County of Mathews, the Court announced a two-part test for determining when a party can withdraw admissions, and upheld the circuit court's decision to let the defendant off the hook for missing the admissions deadline in the case. One prong of the test was whether the admissions would, in effect, leave nothing left to be tried, a factor which supports allowing them to be withdrawn. The other factor was whether the withdrawal would prejudice the other party, in terms of the unavailability of evidence (rather than simply not winning without a trial). The opinion is by Justice Kinser, a former federal magistrate, and cited many cases applying the federal rule on requests for admission. The flip side of the opinion, I fear, is that trial court judges will feel more obliged to allow withdrawal of admissions, which many times are de facto measures of the plaintiff's willingness to do anything in the case. In state court in Southwest Virginia, the deadline in the rule on admissions is too often unenforced without justification.
In Harrell v. City of Norfolk, the Supreme Court added another wrinkle to the bewildering precedents which draw the line between governmental functions, for which cities and towns are immune, and proprietary functions, for which they are not. The function at issue in Harrell involved slippery crosswalk markings on city streets. The Court held the maintenance of crosswalk markings to be a governmental function as a matter of traffic control, rather than an issue of street maintenance like potholes and bumps in the road.
In Doe v. Isaacs, the Supreme Court held in a 5-2 decision that fleeing the scene of an accident (thereby leaving the plaintiff alone and injured), without more, was not a fact that would support an award of punitive damages. "John Doe" was the bad actor here, he ran off after pleading with the others not to call the police and was never seen again. Senior Justice Compton's opinion for the majority somewhat knocks plaintiffs' counsel for citing case law from other states and for citing an unpublished Fourth Circuit opinion, saying this: "Parenthetically, we observe there is abundant law on this subject in the opinions of this Court. Therefore, we do not need guidance from the cases of other jurisdictions relied upon by the plaintiffs. Indeed, they urge upon us an unpublished decision of the United States Court of Appeals for the Fourth Circuit . . . . But the Fourth Circuit's Local Rule 36(c) provides, in part: 'Citation of this Court's unpublished dispositions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.' If reliance on such a disposition is disfavored in the federal system, surely such reliance will not be favored in the state system." Boy, oh boy, that's gratuitous stuff there, which will have bad consequences. Why not just say that the Court disagrees with those other cases, rather than criticize the attempt to use them? The plaintiffs' lawyers were pushing the envelope in this case, trying to change the law a little bit, so it can hardly be a surprise that their arguments would cite outside authorities, which the trial court judge evidently found convincing.
In Eden v. Weight, the Supreme Court agreed with the trial court judge who ruled in a constructive fraud case that the jury's award should be thrown out because plaintiffs failed to prove reliance. The gist is that plaintiffs knew too much. The case involved a corporation that owned the Bistro Bistro restaurant in Arlington - still a good place to eat, so far as I know.
In State Water Control Board v. Crutchfield, the Court ruled that landowners had standing to appeal the issuance by the State Water Control Board of a permit allowing the discharge of treated wastewater into the Pamunkey River next to their property. The Circuit Court for the City of Richmond had concluded that there was no standing, the Court of Appeals reversed, and the Supreme Court took the case because of its "significant precedential value." The opinion notes that in "environmental cases" for standing "it generally is sufficient if a plaintiff establishes that he uses the affected area, and that he is a person 'for whom the aesthetic and recreational values of the area will be lessened' by the defendant's actions." The opinion also notes that the petitioners as landowners with riparian rights "have the right to make reasonable use of the water flowing past their land, and they have a right to enjoy the recreational and aesthetic advantages that are conferred on such land adjoining a watercourse." This opinion strikes me as unimpeachable, and makes me wonder what the circuit court and the Water Control Board were thinking.
In Wilby v. Gostel, the Supreme Court by a split decision concluded that the trial court was correcting in entering a nonsuit as to all the "claims" in the case, even though it had previously granted a motion for partial summary judgment based on contributory negligence. The rationale for this ruling is that plaintiff was claiming both simple and gross negligence in the first two "counts" of the motion for judgment, and contributory negligence is not a defense to a gross negligence claim, therefore no "claims" had been resolved. Justice Kinser dissented, and I think she is right. What is a "claim," she asked, and I wonder also, what is a "count"? There are no provisions regarding pleading in "counts" in the Rules of Court.
In USAA v. Hertz, the Court decided the answer is "yes" to the question of whether "a rental car company that maintains liability insurance coverage on its rental fleet by self-insuring under the provisions of Code 46.2-368 is required to provide primary liability coverage to its customer on a motor vehicle rented in Virginia."
In Simon v. Forer, the Court rejected one of those nutty statute of limitations theories that goes against what every Virginia lawyer thinks he or she knows about how the tolling statute Va. Code § 8.01-229 is supposed to work. The plaintiff filed the first case with 15 months left in the 2-year limitations period, the case went on for 13 months before it was nonsuited, and then plaintiff refiled outside the six month tolling period allowed by section 8.01-229(E)(3). The argument was that under that section, plaintiff can sue either within the six months, or the original limitations period, whichever is longer (which is true), and that the original limitations period was tolled during the pendency of the first case before the nonsuit (which is baloney, since there was a nonsuit, to which section 8.01-229(E)(1) expressly does not apply). So held the Supreme Court, in more diplomatic terms.
In Santen v. Tuthill, the Court held: (1) a guilty plea entered in general district court then withdrawn by an appeal to circuit court cannot be used as evidence in a subsequent civil case, (2) no proper foundation was laid for admission of breath test evidence in the civil case, and (3) the finding for the agent meant that the principal could not be liable.
In Pulte Home Corp. v. Parex Inc., the Supreme Court sustained the manufacturer's demurrer to the builder's cross-claims for breach of express warranty, breach of implied warranty, indemnification, and contribution in an EIFS case. The express warranty claim was rejected in part because manufacturer had filed a motion to crave oyer as to any written warranties, and the builder said it didn't have any (yet). The implied warranty claim was dismissed on the grounds of lack of privity, as apparently the trial court held that the builder was seeking only consequential damages. The indemnification claim was rejected because there was no express contract and because the manufacturer had never been found to be actively negligent. The contribution claim was tossed because the circuit court had ruled separately that the original plaintiffs had no claim against the manufacturer.
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