Thursday, January 9th, 2025
Work-related injuries occur in an endless and variety of ways. In those instances where injuries happen when an employee is in the course of his/her employment and the accident arises out of a risk of that employment, workers’ compensation benefits should be available to the injured worker. If the actual injuries themselves were “caused” by a defective product or the negligence of a third party, then the injured employee can collect both workers’ compensation benefits and recover money damages against the third party at the same time.
At first blush, Virginia law on this subject might seem like a double recovery, but it is not. In fact, under Virginia law (Virginia Code §65.2-309), the employer has a chance of getting back all, or some, of its money from the third party through a process called subrogation or lien recovery. The benefit for the employee is that often workers’ compensation benefits can be secured fairly rapidly, thereby avoiding a potentially devastating gap in income while the third-party case is being sorted out.
The best way to understand how this all works is by looking at some actual case examples where the injured person was able to benefit by both obtaining workers’ compensation benefits and by ultimately securing a substantial recovery against the truly responsible third party in a separate action.
But first, let’s look at what the injured employee is often entitled to under the Workers’ Compensation Act for his or her injuries:
- Wage replacement of approximately 2/3 of the average weekly wage for each week/day missed from work due to the injuries;
- Payment of all reasonable and necessary medical expenses related to the injury;
- Mileage to and from healthcare providers;
- Statutory amounts for the permanent loss or use of a particular body part – such as a leg, arm, eye, finger, etc.; and
- Vocational rehabilitation services.
In addition to the above, in a negligence case against the wrongdoer, the injured person can get everything available under workers’ compensation benefits plus the following:
- Any bodily injuries sustained and their effect on health according to their degree and probable duration;
- Any physical pain and mental anguish suffered in the past and any that may be reasonably expected to suffer in the future;
- Any inconvenience caused in the past and any that probably will be caused in the future;
- Any medical expenses incurred in the past;
- Any earnings lost because she was unable to work at her calling; and
- Any loss of earning and lessening of earning capacity, or either, that may reasonably be expected to sustain in the future.
When the injured person makes a claim against the liable “third party” who is ultimately responsible for causing the injuries, these same damages become part of that litigation as well. When the injured employee recovers against the responsible third party, that is when there is a chance that some of the money will be repaid to the employer/insurance carrier. It is tantamount to an interest-free loan for however long it takes to recover against the negligent party.
As a first example, consider this recent case – Our client was directed by his employer to drive the company vehicle to a job site to do some work. On his way to the job site, he was catastrophically injured when another driver failed to stop at a stop light and t-boned him in the intersection. His injuries included broken bones and psychological problems – all of which prevented him from returning to work for an extended period of time. Fortunately, his employer simply continued his regular paycheck for a couple of months in hopes that he would make a rapid return. Unfortunately, the injuries were too devastating and required surgeries which compounded his inability to work. At that point, he was able to obtain workers’ compensation benefits for his lost wages and medical care.
Next, we made a claim against the negligent driver who ran the stop light who, as it turned out, was also “on the clock” at the time of the crash. We were ultimately able to recover against both the negligent driver and his company. At that point, we paid back a portion of the workers’ compensation benefits, and our injured client was paid for his devastating injuries, loss of income, etc.
Another example of how the system works is a case where our client was employed by a roofing company. He was working on a large building which had a metal roof. At the time, he and some co-workers were using a roofing machine that helped secure the seams of the metal sheets. Our client was working below the machine when it suddenly failed and began rolling down the roof, striking our client and knocking him off the roof onto the ground where he fractured his back and leg. Because he was in the course of his work at the time and his injuries arose out of his job duties, workers’ compensation immediately began paying his benefits. He was then able to successfully pursue a product liability case against the manufacturer of the roof seaming machine for breach of warranty and negligent design. His employer was very helpful in our pursuit of the case and provided substantial help in the litigation against the manufacturer for two reasons – First, they wanted to help their very badly injured worker; and second, they wanted to recover some of the benefits they had voluntarily paid while he was waiting to pursue the third party case.
In summary, the United States system of civil justice is not perfect. However, it is an excellent system that provides safety nets for injured workers in the form of workers’ compensation benefits and potential third-party liability cases. The workers’ compensation benefits can often mean the difference between paying one’s rent and continuing to afford groceries while the third-party case can come closer to truly fully compensating the injured person for the direct and circumstantial damages which can be caused by horrific “on-the-job” injury.
For further information, feel free to reach out to anyone at our firm who can help you navigate these incredibly beneficial rights.
Monday, December 30th, 2024
As of December 27, 2024, reporting requirements under the Corporate Transparency Act (CTA) are once again paused after a panel of the U.S. Court of Appeals for the Fifth Circuit issued an order vacating the December 23, 2024, order granting a stay of the preliminary injunction.
The past week has been tumultuous for thousands of small businesses following the status of Texas Top Cop Shop, Inc., et al. v. Garland, et al., No. 4:24-cv-00478 (E.D. Tex.) to determine whether they will be required to file their beneficial ownership information as required by the CTA. For anyone not actively following the judicial developments, below is a timeline of the pertinent decisions this past month.
Tuesday, December 3, 2024
The U.S. District Court for the Eastern District of Texas, Sherman Division, issued an order instituting a nationwide injunction for the beneficial ownership reporting requirements under the CTA.
Thursday, December 5, 2024
The Department of Justice, acting on behalf of the Department of the Treasury, filed a Notice of Appeal and sought a stay of the injunction pending the appeal.
Monday, December 23, 2024
A panel of the U.S. Court of Appeals for the Fifth Circuit granted a stay of the district court’s preliminary injunction entered on December 3rd. This stay meant that businesses were once again required to file beneficial ownership reports with Financial Crimes Enforcement Network (FinCEN) under a modified deadline scheme issued after the stay was entered by the Court.
Thursday, December 26, 2024
A different panel of the U.S. Court of Appeals for the Fifth Circuit issued an order vacating the Courts December 23rd order leading to the December 3rd injunction going back into effect.
The official FinCEN website posted an announcement on Friday December 27, 2024, recognizing that the reporting requirements are once again paused while this case continues to work itself through the court system.
The fate of these reporting requirements is up in the air now, leaving businesses uncertain as to whether they should wait to file their reports or if they will have to file them at all. At the same time, the penalties for failing to comply with the CTA are harsh and businesses may not want to risk missing a last-minute deadline if the injunction is once again stayed.
Thus far, FinCEN has been quick to address developments in the case as they happen and recognized the uncertainty that the case has caused among reporting companies. If FinCEN’s actions this week are a guide for what we can expect going forward, it is likely that if the injunction is stayed again as it was on December 23rd, FinCEN will once again modify the reporting deadlines beyond January 1, 2025.
For more information or to monitor the status of the reporting requirements, visit FinCEN’s website at www.fincen.gov/boi.
Friday, December 20th, 2024
No cap[1]; in Virginia medical malpractice actions, your recovery is capped, regardless of the amount of damages you actually sustained. The items of damage that are recoverable depend on the nature of the injury sustained. If the patient suffered injury short of death, their damages can include items such as pain and suffering, humiliation and embarrassment, inconvenience, medical expenses, lost wages, etc.[2] If the injury resulted in death, the decedent’s statutory beneficiaries can recover damages including sorrow, mental anguish, loss of companionship, lost support from income, expenses for the care and treatment for the deceased patient, funeral expenses, etc.[3]
Regardless of the cause of action or the elements of damage sought, Virginia imposes a “cap” on the total amount of damages that are recoverable in a medical malpractice action. The Code states:
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount:
August 1, 1999, through June 30, 2000 $1.50 million
July 1, 2000, through June 30, 2001 $1.55 million
July 1, 2001, through June 30, 2002 $1.60 million
July 1, 2002, through June 30, 2003 $1.65 million
July 1, 2003, through June 30, 2004 $1.70 million
July 1, 2004, through June 30, 2005 $1.75 million
July 1, 2005, through June 30, 2006 $1.80 million
July 1, 2006, through June 30, 2007 $1.85 million
July 1, 2007, through June 30, 2008 $1.925 million
July 1, 2008, through June 30, 2012 $2.00 million
July 1, 2012, through June 30, 2013 $2.05 million
July 1, 2013, through June 30, 2014 $2.10 million
July 1, 2014, through June 30, 2015 $2.15 million
July 1, 2015, through June 30, 2016 $2.20 million
July 1, 2016, through June 30, 2017 $2.25 million
July 1, 2017, through June 30, 2018 $2.30 million
July 1, 2018, through June 30, 2019 $2.35 million
July 1, 2019, through June 30, 2020 $2.40 million
July 1, 2020, through June 30, 2021 $2.45 million
July 1, 2021, through June 30, 2022 $2.50 million
July 1, 2022, through June 30, 2023 $2.55 million
July 1, 2023, through June 30, 2024 $2.60 million
July 1, 2024, through June 30, 2025 $2.65 million
July 1, 2025, through June 30, 2026 $2.70 million
July 1, 2026, through June 30, 2027 $2.75 million
July 1, 2027, through June 30, 2028 $2.80 million
July 1, 2028, through June 30, 2029 $2.85 million
July 1, 2029, through June 30, 2030 $2.90 million
July 1, 2030, through June 30, 2031 $2.95 million
In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after July 1, 2031, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $3 million. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase.[4]
As can be seen, this statutory scheme contains within it a periodic increase of the upper limit of medical malpractice awards. If the cap applies, however, these numbers are absolute. The severity of the patient’s injuries are irrelevant; the amount of their medical bills or the cost of their future care is irrelevant; the amount of the wages they have lost and will lose over the course of their lifetime is irrelevant. The cap is the cap.
Therefore, it is important to know when the cap applies. The cap only applies to verdicts returned against “health care providers” in an “action for malpractice.”[5] “Malpractice” is defined as “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”[6]
“Health care” is defined separately as “any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical diagnosis, care, treatment or confinement.[7] In other words, the claim against the healthcare provider must have arisen out of the treatment they were providing.
The definition of “Health Care Provider” includes a long list of persons, entities, and professions that qualify.[8] Finally, “patient” is “any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.”[9]
If a potential plaintiff’s situation meets this definition, the cap applies, and it limits the total amount of recovery that a plaintiff can achieve in the action. There are nuances to this analysis. This is why it is of vital importance that a person injured by what they believe to be medical malpractice consult with experienced Virginia medical malpractice attorneys who can guide them through this process. Contact us today for a consultation.
[1] No Cap Definition: The expression no cap is slang meaning “no lie” or “for real,” often used to emphasize someone is not exaggerating about something hard to believe.
[2] See Virginia Model Jury Instruction – Civil No. 9.000; Categories of Damages in Virginia Personal Injury Cases
[3] See Va. Code § 8.01-52.
[4] Va. Code § 8.01-581.15 (emphasis added).
[5] Id.
[6] Va. Code § 8.01-581.1 (emphasis added).
[7] Va. Code § 8.01-581.1 (emphasis added).
[8] Id.
[9] Id.
Wednesday, December 18th, 2024
When an individual starts looking for a personal injury lawyer in Virginia, they are often doing so shortly after one of the worst days of their lives. This is doubly true when a parent is looking for legal advice after the death of a child. Virginia, like many states, has a cause of action for wrongful death.[1] This statutory cause of action allows for a personal representative of a deceased individual to bring suit on behalf of the deceased individual’s “statutory beneficiaries.” This statute did leave some questions, however, that were in need of interpretation. For instance, what if a fetus was wrongfully killed while in the womb. What if the fetus was injured in the womb, but only succumbed to its injuries after it was born? Was there liability in those instances?
These presented complicated and philosophically dense issues for any court to untangle. In the cases of Bulala v. Boyd and Kalafut v. Gruver, which were decided on the same day, the Virginia Supreme Court “drew the line between nonliability and liability for prenatal injury at the moment of live birth of the child.”[2] This, according to the Virginia Supreme Court, was when the fetus became a “person.”[3]
This line in the sand between “liability and nonliability,” however, has been swept away by the wind of legislative change. “[I]n 2012, the General Assembly amended the wrongful death statute to recognize that an action may be brought against a tortfeasor for the wrongful death of a child in utero.”[4]
It is well established, now, that Virginia recognizes separate claims for the death of a fetus. Specifically, Virginia, in amending the wrongful death act, established a fetal death statute specifically for this purpose. The fetal death statute reads:
Whenever a fetal death, as defined in § 32.1-249, is caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation, the natural mother of the fetus may bring an action pursuant to this section against such tortfeasor. Nothing in this section shall be construed to create a cause of action for a fetal death against the natural mother of the fetus.[5]
“Fetal death,” in turn, is defined as:
Death prior to the complete expulsion or extraction from its mother of a product of human conception, regardless of the duration of pregnancy; death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.[6]
This definition makes it abundantly clear that a cause of action for fetal death is viable regardless of the viability of the fetus itself. In other words, “fetal death” is statutorily defined as death before live birth. If such an event is caused by “the wrongful act, neglect, or default of any person,” it is actionable under the fetal death provision of Virginia’s wrongful death statute.[7]
The “natural mother of the fetus,” if she is competent to do so, is the individual empowered by the Code to bring such an action.[8] Damages for such a death, however, are not damages of the mother, per se, but are awarded “pursuant to [the wrongful death act].”[9] In other words, damages are awarded to the fetus’ statutory beneficiaries to compensate them for the types of damages contemplated in the act.[10]
While it is clear that, in Virginia, there is a claim for the wrongful death of a fetus, many insurance companies, especially those with a nationwide footprint, are not aware of this nuance of Virginia law. These companies, their adjusters, and even their attorneys often need education on this claim in order for them to appropriately evaluate the exposure of their insureds and clients when they are sued for fetal death.
If the unthinkable happens and an individual is put in the position the fetal death statute is meant to address, she would be wise to consult with an experienced personal injury attorney in Virginia who knows the path to follow in navigating a fetal death claim. It is a difficult and emotional process, and there is no reason that you should go it alone. Contact us today for assistance.
[1] See Va. Code § 8.01-50.
[2] See Bulala, 239 Va. 218, 229 (1990); Kalafut, 239 Va. 278, 283-84 (1990).
[3] Id.
[4] Simpson v. Roberts, 287 Va. 34, 45 (2014) (J. McClanahan, concurring).
[5] Va. Code § 8.01-50(B).
[6] Va. Code § 32.1-249.
[7] Va. Code § 8.01-50(B). The statute does, however, contain an explicit carveout that exempts the natural mother herself from being liable for a cause of action under the statute.
[8] Id. § 8.01-50(B)-(C). Subpart C allows individuals other than the natural mother of the child to bring this action should the mother die or become incapacitated.
[9] Id. § 8.01-50(C); -53.
[10] Id.; Categories of Damages in Virginia Personal Injury Cases
Friday, December 13th, 2024
Due to a recent federal court order, reporting companies are not currently required to file beneficial ownership information under the Corporate Transparency Act while the order is in place. However, reporting companies may continue to voluntarily submit beneficial ownership information reports and should monitor the status of the court order going forward. More information is available on FinCEN’s website at https://www.fincen.gov/boi.
If you have any questions, please email us at CTA@gentrylocke.com.
Thursday, December 12th, 2024
When you are injured at work, whether you can sue anyone depends on the identity of the person who caused your injury. An experienced personal injury lawyer can give you advice which considers the circumstances of your case.
1. Who you CAN’T sue:
If your accident is covered under workers’ compensation, you are NOT permitted to sue your employer or any co-worker. Your employer is responsible only for paying you a weekly benefit for wage loss and paying the cost of necessary medical treatment for your injury, both as provided in the Virginia Workers Compensation Act.
2. Why you should get legal advice to see if you CAN sue anyone:
If you can file a personal injury lawsuit against the person who caused your injury, you can claim damages beyond the wage loss and medical expense benefits which are available through your workers’ compensation claim. The additional damages you can claim include amounts for pain and suffering, inconvenience, loss of future earning capacity, punitive damages, and pre-judgment and post-judgment interest. These additional damages can vastly exceed the limited benefits available in a worker compensation claim. An experienced personal injury lawyer can determine whether you can sue, and what damages you can claim.
3. Who you CAN sue:
You can sue a person who caused your injury if that person is a “third party”, a “stranger” to your employment, who is not engaged in the performance of your employer’s business. An experienced personal injury lawyer can determine whether such a “third party” caused your injury.
4. Examples of “third parties” who you CAN sue:
(a) A driver of a motor vehicle who causes an accident which injures you while you are engaged in work activity for your employer.
(b) A physician, hospital, or other medical provider who injures you through committing malpractice in treating your work injury.
(c) A manufacturer or supplier of equipment, machinery, tools, and other products that are defective and which cause injury to you due to their defective condition.
(d) An airline that is in control of an airplane that crashes due to the neglect of the airline, when you are a passenger engaged in work activity for your employer.
(e) In cases of freight delivery, if the employees of the receiving business are solely responsible for unloading, they can be sued if they cause an injury to a delivery driver who is not responsible for unloading.
There are endless possible situations in which you can receive workers’ compensation benefits and in addition, sue the person or entity who injured you. In all such cases, there are potentially significant additional damages you can collect. If you believe your case may involve a claim against a “third party” who is not engaged in the performance of your employer’s business, it is certainly in your interest to contact an experienced personal injury lawyer to evaluate your case.
Contact us today to speak with one of our personal injury attorneys in Roanoke, Lynchburg, Richmond, or Norfolk.
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Wednesday, November 20th, 2024
When Deputy Attorney General Lisa Monaco announced in October 2021 that the Department of Justice would be pursuing a new initiative to combat cybersecurity related fraud, white-collar criminal defense attorneys took notice. DAG Monaco’s message in that announcement was clear: DOJ plans to combine its expertise in fraud enforcement and government procurement to aggressively pursue cyber threats and cybersecurity related fraud. Since that time, DOJ has secured a number of high-profile settlements that have sent the message to government contractors that misrepresenting their cybersecurity posture or failing to report a breach will result in a costly DOJ enforcement action.
The latter half of 2024 has been a particularly busy time for DOJ Cyber Fraud settlement announcements. First, in June 2024, DOJ announced a settlement with Guidehouse, Inc. and its subcontractor, Nan Kay and Associates, for $11,300,000 stemming from allegations that the two companies failed to meet cybersecurity requirements in their contracts with the government. An ex-Guidehouse employee was the whistleblower in this case and earned $1,949,250 as part of the settlements. Both firms had been selected by New York to administer that state’s emergency rental assistance program (“ERAP”), a program established in early 2021 as part of the federal government’s COVID relief funding efforts. The consulting firms contracted with the government to ensure that ERAP applications underwent proper cybersecurity testing before deployment. The settlements alleged that neither of the companies’ tools functioned properly, yet they still allowed the applications to launch. Notably, while there was some data leakage as soon as the ERAP application launched online, no PII was accessed, so there was actually no tangible harm in this case, but it still resulted in a hefty settlement. The prosecuting AUSA’s quote in the DOJ press release for this settlement perfectly summarizes the purpose of DOJ’s Cyber Fraud initiative: “Contractors who receive federal funding must take their cybersecurity obligations seriously…[w]e will continue to hold entities and individuals accountable when they knowingly fail to implement and follow cybersecurity requirements essential to protect sensitive information.” The takeaway for white collar defense lawyers and their clients: even when the actual harm is negligible or non-existent, companies that do business with the government need to be extremely careful that they are in compliance with their cybersecurity obligations.
Next, the DOJ filed its complaint-in-intervention in August 2024 in an FCA cyber fraud suit against Georgia Tech in a case originally initiated in 2022 by a whistleblower who was a former member of GT’s cybersecurity team. The complaint alleged that GT failed to comply with various cyber requirements, like implementing a system security plan and submitting false cybersecurity assessment scores to DOD. When DOJ intervened in 2024, they raised claims of fraud, negligent misrepresentation, and breach of contract. The intervention in the Georgia Tech case comes as DOD finalizes rules for the Cybersecurity Maturity Model Certification (CMMC) program, which will require many contractors to receive a third-party audit of their cybersecurity compliance as a condition of contract award.
Most recently, on October 22, 2024, DOJ announced a settlement with Pennsylvania State University to resolve allegations that Penn State violated the False Claims Act (“FCA”) by failing to comply with cybersecurity requirements in contracts involving the Department of Defense and the National Aeronautics and Space Administration (“NASA”). The FCA claims were initiated in January 2023, when a whistleblower filed a complaint alleging that Penn State submitted false self-attestations of National Institute of Standards and Technology (“NIST”) compliance to DOD. These self-attestations concerning its cybersecurity policies and procedures are required to be submitted to DOD as part of the contracting process. DOJ intervened for settlement purposes in October 2024, representing the second FCA action by the government against a university in 2024, following their intervention in the Georgia Tech case.
Any organization accepting federal contract dollars, as well as the lawyers who represent them, should take notice of the recent momentum that is gaining in the DOJ Cyber Fraud initiative, which had initially gotten off to a slow start. Notably, the role of the whistleblower is particularly important in these cyber fraud cases due to the complex subject matter involved; the whistleblower is often an insider with specialized knowledge. The attention paid to the fraudulent practices of non-traditional government contractors, namely colleges and universities, is also a point of interest for attorneys advising clients on compliance priorities. Finally, it is noteworthy that the goals of the initiative are really cyber and national security goals – trying to achieve a more secured environment for national security, encouraging whistleblowers to come forward, and encouraging government contractors to be in compliance with cybersecurity obligations.
If you have questions related to data privacy and cybersecurity, reach out to attorney John Danyluk who is a Certified Information Privacy Professional (CIPP/U.S.) with the International Association of Privacy Professionals (IAPP). John guides clients through complex and evolving data privacy and cybersecurity laws and regulations, defends government enforcement actions, and shepherds clients through data breach responses.
Tuesday, November 19th, 2024
Last month,[1] we posted an article that described the challenge businesses faced due to a Department of Labor (DOL) regulation (the “2024 Rule”) that was set to require employers to raise the minimum salary paid to most exempt employees for a second time in six months. The second phase of the 2024 Rule, which would require a salary of $58,656, was set to become effective on January 1, 2025. Now, thanks to a federal court in Texas employers are no longer required to raise salaries comply this new DOL rule.
Last Friday, the Court ruled [2] that the DOL’s 2024 Rule, which would have dramatically raised the required salary twice in six months, and then automatically increase again every three years,[3] was unenforceable. After a lengthy review of various historical rules DOL had used over time to define and clarify the exemptions under the Fair Labor Standards Act (“FLSA”), the judge ruled the 2024 Rule was an unlawful exercise of agency power because it contemplated “sweeping changes … designed on their face to effectively displace the FLSA’s duties test with a predominate – if not exclusive – salary level test.” Having concluded the 2024 Rule was unlawful, the Court then ruled that it was required under federal law to “set aside” the 2024 Rule and make it unenforceable nationwide. As a result, the Texas court’s ruling is not limited just to the parties who brought the lawsuits but applies to all persons in all judicial districts.
Bottom line, the DOL’s 2024 Rule are no longer binding on any businesses.[4] While DOL has a right to appeal, given the outcome of the recent election, it is likely that any appeal will be pursued to a decision. As result, employers are no longer obligated to raise salaries to the levels set forth in the 2024 Rule in order to establish an exemption. The option discussed in the prior article of using a fluctuating work week approach to calculating overtime pay is still an option for those salaried employees whose duties may not qualify them for an exemption. If you have question about the FLSA and other wage and hour issues, please do not hesitate to contact Gentry Locke’s Employment Team.
[1] See article, Will New Minimum Salary Increase Affect Your Business …. (Oct. 17, 2024)
[2] The Court’s ruling came in a 62-page decision in the consolidated cases, Texas v U.S. Dept. of Labor, et. al., Civ Action No. 4:24-cv-00499, and Plano Chamber of Commerce, et. al., v U.S. Dept. of Labor, et. al., Civ Action No. 4:24-cv – 00468 (E.D. Texas November 15, 2024)
[3] DOL’s 2024 Rule imposed increases to the minimum salary for most exemptions in three steps. First, the Rule raise the minimum salary as of July 1, 2024, to $844 per week (a 23.39% increase from pre-existing $684 weekly requirement). Next, the Rule then increased the minimum salary requirement to $1,128 per week (another 33.65% increase in less than six (6) months from the $844 imposed merely six months earlier). Last, it included an automatic increase as of January 1, 2027, and every three (3) years thereafter. The second increase was projected by DOL to affect 3 million workers, and the first affected 1 million workers.
[4] The Court’s decision means not only that there is no “requirement” to raise salaries of otherwise exempt employees on January 1, 2025, but also that employers did not need to raise salaries above the $684 per week or $35,568 per rate that existed prior to July 1, 2024. This result will have little impact on those employers who elected to comply with the 2024 Rule’s requirement earlier this year as it is hard to imagine that those employers will reverse the pay increase previously given.
Thursday, October 31st, 2024
There’s no doubt that social media has changed our daily lives – for the better and for the worse. We post important life updates, photos from joyous occasions, and even videos of the latest dance trend. Sure, when you’re only being “followed” by friends, family, and colleagues, these posts are relatively harmless. But when you’re pursuing personal injury attorneys in Virginia, you should think twice whether or not to hit that “Post” button.
When you file a personal injury claim, you’re inviting the defendant or defendants to scour and scrutinize every post from that moment forward. As the plaintiff, you’re essentially saying, “I was injured by the defendant, and those injuries have affected my life in some negative way.” Social media gives the defendant, defense counsel, and insurance companies an opportunity to find any statement, photo, video, or even location “check-in” to prove that your injury is not as bad as you claim.
Common Social Media Misconceptions
Many people incorrectly assume that their social media cannot be used them for a variety of reasons and post anyway. We’re here to let you know common misconceptions about personal injury plaintiffs and why we tell our clients not to post on social media when we take on their personal injury lawsuits.
1) “Private” doesn’t always mean private.
Social media posts are not legally protected documents and are subject to discovery. If defense attorneys and insurance adjusters are unsuccessful in their numerous tactics to retrieve information from your private social media accounts, they can (and likely will) use discovery to gain access to your social media posts (and posts of you shared by others).
2) “I can just delete any post that’s hurtful to my case.”
As the common saying goes: “Once it’s on the internet, it’s there forever.” This saying isn’t just something adults tell teenagers to encourage responsible internet use. There are many tools lawyers, insurance companies, and private investigators can use to access historical data online. So when you delete a post, it may be gone from the current version of your social media account, but it’s not deleted from the history of your account.
If anything, deleting a potentially damaging post can actually do more harm to your case than good. It can create doubt in a juror’s mind as to whether you’re a credible plaintiff by making you look like you’re attempting to hide something even if you’re not.
3) Context isn’t necessary to use social media posts against you.
Often, clients will post photos of themselves and others in places and situations that would otherwise be normal content to share. The issue becomes how those same posts can be used against you in your personal injury lawsuit.
For example, if a plaintiff makes a claim that they’re having difficulty walking due to pain from an injury caused by medical malpractice and later posts a photo from dinner standing next to friends, the defense can use that photo as evidence that the plaintiff’s injury isn’t as significant as he claims it to be. It does not matter whether the plaintiff was in excruciating pain during the time or whether he used crutches except for the split second the photo was taken. The defense is likely to put up the photo for a jury and ask, “Mr. Smith, is this you standing in this photo taken last month smiling at Olive Garden?” If the defense attorney is experienced, he won’t allow the plaintiff any opportunity to explain the circumstances, and the jury will be left wondering whether the plaintiff’s injuries and pain and suffering are as bad as he claims them to be.
Context does not matter.
At Gentry Locke, our team of experienced personal injury attorneys will help you navigate your lawsuit in the modern day of social media. We advise and remind all of our clients not to delete previous posts, not to post anything related to their cases, and, when in doubt, not to post at all. Our attorneys are familiar with the various tactics used by defense counsel and insurance companies to downplay serious injuries and the effect they can have on the value of the case. Contact us today for guidance on your case.
Monday, October 28th, 2024
Article co-written by Matt Broughton and Investigator Danny Brabham
Introduction
A private investigator is an essential part of a Virginia personal injury attorney’s team. The private investigator and everyone involved in the investigation of a Virginia truck or car accident must have a “go team” mentality. When a crash occurs, every minute that passes allows for the opportunity for crucial information to disappear. Some of the information disappears simply by the weather conditions. For example, skid marks can be washed away or faded by the sun. Debris in the roadway will gradually move away from its initial location – either by humans or by the wind, etc. Witnesses to an accident are eager to tell their story about the accident in the first few minutes, days, weeks after it occurs. Later, they are less interested and can become annoyed when contacted months/years later.
The importance of an immediate, thorough investigation of the crash cannot be overstated. It can mean the difference between winning and losing your case. When you contact an attorney to represent you or a loved one, you should make sure that the attorney has a team immediately available, specifically comprised to protect your interests. This team should include, at minimum, an experienced motor vehicle litigation attorney, an associate attorney, experienced paralegals and legal assistants, on-staff medical personnel – such as a licensed registered nurse – to help guide medical care, and an experienced investigator.
At Gentry Locke, we have all of these individuals as part of our “go team” and they are employed regularly to ensure that our clients’ interests are protected.
This article provides you with the importance of a proper investigation, but from the perspective of both a senior litigation attorney and an experienced private investigator who spent decades in law enforcement. We encourage you to keep this article handy and share it with your loved ones because, unfortunately, serious motor vehicle crashes are a reality which we all confront at some point in our lives.
Analysis
When a serious truck crash or car crash occurs, the victims of the crash are often initially disoriented, confused and concerned about their injury and treatment. In Virginia, the driver of a vehicle involved in a crash resulting in injuries must immediately notify law enforcement of the accident. In fact, failure to make the report is a Class 4 misdemeanor. Va. Code Ann. § 46.2-371. If the driver is unable or unwilling to make the call, the victims of the crash or a third party should dial 9-1-1 and give as many details as possible – including the fact that there are injured passengers. This assures that medical help will be quickly on the way to the scene.
If the crash involves more than $1,500 in property damage, the police officer has a duty to investigate the crash by examining the scene, interviewing witnesses, and filing an investigation report within 24 hours after completing the investigation. Va. Code Ann. §46.2-373.
If you or a loved one are injured in a motor vehicle crash that was a result of another driver’s carelessness, it was most likely investigated by a law enforcement officer as indicated above. At the conclusion of the investigation, the officer has the discretion to make a preliminary decision on which driver/drivers are at fault and place appropriate charges, if any. But, be aware, in many instances the police officer does not charge the at-fault driver in a motor vehicle crash but, instead, makes the decision to “just let the insurance companies work it out.”
Our firm, Gentry Locke, has a retired police officer who is an experienced private investigator with more than two decades of investigative experience, on our staff. He is a critical part of our “go team” and is available to investigate your personal injury case. This allows the firm to avoid the unnecessary loss of crucial evidence by immediately beginning the investigation – whether the at-fault driver was charged or not.
What you can do to help the investigation of your case
It is important that you make note of the date, time, location and name of the investigating law enforcement agency when involved in a motor vehicle crash. In all instances, the investigating officer will provide all involved parties with an exchange of information form or, at minimum, their agency’s incident number.
It is imperative that you maintain all the information you are provided by the investigating officer. It is also helpful, if you are able, to photograph the scene and all vehicles involved while at the scene with your cell phone or camera. If you are unable to do so, ask a relative or someone at the scene with you to take photographs for you. Be sure that someone photographs the road surface showing skid marks and the location of debris from a sufficient distance to determine its relative location. Also, photograph (as early as possible) each and every one of your injuries – including cuts, bruises, swollen places, etc.
Meeting with your attorney
When meeting with one of our attorneys, one of the things you will be asked to provide them with is any information you were given by the investigating officer. This information will be used to obtain a copy of the Police Crash Report – if one was completed and submitted.
The attorney will also want you to give a description of all of your injuries and treatment providers, as well as when you were seen and what diagnoses you were given. If you have any medical records or paperwork with this information, bring it with you to the meeting.
Investigator’s role in your case
Once you have engaged the firm, the investigator will begin the investigation by immediately completing the following steps:
1. Obtaining a copy of the Police Crash Report;
2. Determining whether the vehicles involved in the crash were towed and, if so, where they are being stored;
3. Speaking with you to ensure he or she has adequate information about the details of the crash;
4. If the vehicles are still available, the investigator will photograph the vehicle in great detail to show the physical damage and also the transfer of paint or other evidence of the facts of the accident;
5. He will submit a Freedom of Information Act (FOIA) request to the investigating law enforcement agency and request the following specific information:
a. The investigating officer’s notes;
b. The names and contact information of all witnesses – including any statements they provided;
c. Body worn camera footage and/or dash cam footage of the investigation of the crash;
d. Computer aided dispatch (CAD) reports relating to the crash; and
e. Audio portions of any and all 9-1-1 calls received relating to the crash.
6. The firm’s investigator will go to the scene of the crash to obtain photographs from all angles and take measurements, if appropriate. At the scene, the investigator will search for any surveillance cameras that are present and begin the process of preserving any footage available to be later used during the civil litigation. We have won many cases by obtaining video footage from nearby houses, businesses, and other vehicles. It takes a tremendous amount of effort, but it is often worth the investment.
7. Once the Police Crash Report is obtained and a response to the Freedom of Information Request is received, the investigator will speak with the investigating officer to obtain any further details that are not in the Police Crash Report.
8. Finally, the investigator will contact all witnesses to the crash and obtain all information the witness possesses, such as their personal memory of what occurred, photographs they may have taken, or statements that they may have heard by the other at-fault driver.
At-fault driver’s court date
If the other driver was charged, the investigator will monitor the court’s website to determine the date and time of any trial. In many cases, the investigator will actually attend the trial in either the general district or circuit court and arrange for a court reporter, if necessary, and help prep you for any testimony you may be required to give.
Summary
In summary, the role of an investigator in a motor vehicle crash is a crucial and indispensable part of a well-handled personal injury case. If you or a loved one are involved in a serious motor vehicle collision involving either tractor trailers or other motor vehicles (such as a motorcycle, boat, or car), make the decision to involve a firm with an experienced investigator who can help protect your interests and help assure the best recovery possible. Contact us today for assistance.
