Category: Construction Law

Virginia Creates Duty to Preserve Potential Evidence

April 12, 2019 | by: Laura Lee Miller | Leave a Comment

On March 21, 2019, Governor Northam signed Senate Bill 1619 into law, changing what remedies are available to a court faced with a potential litigant or a party who has recklessly deprived another party of evidence. The new statute provides: A party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation. In determining whether and at what point such a duty to preserve arose, the court shall include in its consideration the totality of the circumstances, including the extent to which a party or potential litigant was on notice that specific and … Continue reading

Fourth Circuit Holds That The Accidental Disclosure of Medical Records on the Internet Triggered Duty to Defend

April 14, 2016 | by: Rob Friedman | Leave a Comment

In Travelers Indemnity Company of America v. Portal Healthcare Solutions, LLC, the Fourth Circuit recently affirmed a federal district court’s determination that a class action lawsuit arising out of a medical records safekeeping firm’s alleged failure to safeguard confidential medical records triggered an insurer’s duty to defend under a policy that afforded coverage for damages arising out of “electronic publication of material that… gives unreasonable publicity to a person’s private life” or the “electronic publication of material that… discloses information about a person’s private life” (the specific policy language changed at renewal, but the court found them materially identical). In the … Continue reading

Be Careful What You Ask For!

June 18, 2015 | by: Melissa York | Leave a Comment

The Supreme Court of Virginia recently affirmed a Circuit Court’s Order denying plaintiff’s motion to set aside the default judgment she obtained against the defendant, even though the defendant was never properly served with the summons and complaint. Sauder v. Ferguson arose out of an October 2009 motor vehicle accident.  Susan Sauder filed a complaint against Dennie Lee Ferguson seeking damages from the accident.  Sauder obtained posted service on Ferguson at an old address listed on the 2009 police report.  Sauder also served Rockingham Mutual Insurance Company by personal service on its registered agent, instead of Rockingham Casualty Company, her … Continue reading

Don’t pick up the tab before picking up the phone: Settling a claim without the insurer’s knowledge.

April 29, 2014 | by: Dannel C. Duddy | Leave a Comment

Sometimes we all need to be reminded of something we already know – if you think that someone else is going to pick up the tab for something, it’s probably best to check with that person before shelling out any of your money.  The Fourth Circuit, in Perini/Tompkins Joint Venture v. Ace American Insurance Company, 738 F.3d 95 (4th Cir. 2013)(applying Maryland law and Tennessee law), recently issued a stern reminder of this principle. Perini/Tompkins Joint Venture (PTJV) was the construction manager for the construction of a $900 million hotel and convention center in Oxon Hill, Maryland known as the … Continue reading

Shared Immunity for Third-party Claims in Public Construction Projects

April 16, 2014 | by: Lester Brock | Leave a Comment

A construction contractor may be entitled to  sovereign immunity from third-party claims for liability when performing work pursuant to a government contract.    This immunity defense has been recognized in some form by both federal and state courts where the contractor  followed the government’s plans and specifications and did not exceeded its authority under the contract or commit some independent act of negligence. In Yearsley v. W.A. Ross Const. Co., 309 U.S. 18 (1940), a landowner brought suit against a contractor engaged by the federal government to construct several dikes that diverted a river and eroded 95 acres of the landowner’s … Continue reading

Construction Contracts – Are Contractual Indemnification Provisions Enforceable?

January 16, 2014 | by: Thomas Garrett | Leave a Comment

We are now three years removed from the Supreme Court of Virginia’s Uniwest decision interpreting Virginia’s anti-indemnification statute, Virginia Code § 11-4.1.  Yet, the enforceability of contractual indemnification clauses in construction contracts remains murky under Virginia law.  In Uniwest, two contractual indemnification clauses were at issue, only one of which was enforceable.  Confusion remains regarding the enforceability of such provisions because the Supreme Court of Virginia failed to explain why the one indemnification clause was enforceable.  However, a careful reading of the Uniwest opinion should remove any doubt about which provisions are and are not enforceable. … Continue reading

Is the Demurrer Officially Dead In Negligence Cases?

January 14, 2014 | by: HCCW | Leave a Comment

It is increasingly difficult for defendants to win at the demurrer stage in negligence cases in Virginia.  A recent Virginia Supreme Court decision further eviscerated the power of the demurrer and confirmed the Court’s apparent change in direction on this issue, away from the requirement that Plaintiffs must allege proximate cause and toward an interpretation of Rule 3:18 that allows facts tantamount to res ipsa loquitur to survive demurrer. In Patel v. Williamsburg Indoor Sports Complex, LLC et. al., Record No. 130237, November 22, 2013, the Supreme Court of Virginia reversed the trial court’s grant of the defendant’s demurrer without … Continue reading