Category: Insurance Coverage

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

Garrett Prevails in Tenth Circuit

August 22, 2017 | by: Thomas Garrett | Leave a Comment

HCCW partner Tom Garrett recently prevailed on an appeal before the United States Court of Appeals for the Tenth Circuit.  Higby Crane Serv., LLC, et al. v.  National Helium, LLC, et al., Case Nos. 16-3271 and 16-3279 (10th Cir. Aug. 14, 2017).  Higby Crane involved a subrogation action to recover amounts paid under a commercial inland marine policy for damage to a crane as a result of an overnight flashfire at a helium production plant.  The defendants contended that the anti-subrogation rule prohibited the action because they were entitled to additional insured coverage under the CGL policy issued to the … Continue reading

Sweeping Changes to Virginia’s UIM Statute

May 10, 2016 | by: Jon Nichols | Leave a Comment

A broad overhaul of Virginia Code § 38.2-2206 (Virginia’s Underinsured Motorist Statute) will result in new rights and responsibilities for claimants, tortfeasors, liability carriers and underinsured motorist carriers in settling claims. The most significant of these changes is that a liability insurer and a plaintiff may settle a claim and release the tortfeasor while still allowing the plaintiff to proceed against the UIM insurer.  The statute also may shift the duty to defend entirely to the UIM insurer while extinguishing its subrogation rights, resulting in increased costs to an underinsured motorist carrier with no ability to recover from the tortfeasor. … 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

Supreme Court of Virginia Issues Three Insurance Coverage Opinions in September Session

September 24, 2015 | by: Rob Friedman | Leave a Comment

Last Friday marked the close of the Supreme Court of Virginia’s September session.  The Court issued three insurance coverage opinions addressing important issues: (1) vehicle “occupancy” and vehicle “use” for purposes of UIM Coverage (2) whether bad faith is a question for the judge or the jury; and (3) whether use of a nonsuit extends the contractual period of limitations contained in the standard fire insurance policy.  Summaries of the three decisions are provided below. Bratton v. Selective Ins. Co., Record No. 141358 (Sept. 17, 2015) A Road Construction Worker Was “Getting out of” a Dump Truck and “Using” a … 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

Insured’s Counterclaim for Bad Faith Allowed to Proceed Despite Lack of Formal Coverage Denial

December 16, 2014 | by: Rob Friedman | Leave a Comment

The Eastern District of Virginia (Richmond Division) recently permitted  a counterclaim for bad faith to proceed in an insurer’s declaratory judgment action, despite the fact that the insurer had not formally denied coverage.  Great American Ins. Co. v. GRM Management LLC, No. 3:14cv295 (Nov. 24, 2014), arises out of a first-party insurance dispute between Great American Insurance Company and a hotel it insured.  After a former employee allegedly stole an HVAC unit and other items from the hotel roof, the hotel submitted a claim to Great American. Following its investigation, Great American filed an action for declaratory judgment, seeking a … Continue reading

Renewed Auto Policies Subject to Virginia’s “Match or Reject” Provisions Requiring that Liability Limits Equal UM/UIM Absent Specific Rejection by the Insured

July 28, 2014 | by: Rob Friedman | Leave a Comment

A recent case from the United States District Court for the Eastern District of Virginia, Richmond Division, held that an insurer’s underinsured motorist coverage limit totaled $500,000, effectively raising the total available coverage in connection to a motorcycle accident by $250,000.  The UIM carrier had argued that its UM/UIM limit totaled only $50,000.   The issue involved what is sometimes known as “mismatched” limits.  Essentially, the policy at issue provided $500,000 in liability coverage, but only $50,000 in UM/UIM coverage.  Under Virginia law, however, the UM/UIM limit must be equal to a policy’s liability limit, unless the insured specifically rejects … Continue reading