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.
Tuesday, October 22nd, 2024
Article co-written by Nicholas Beck, Paralegal Tara Barnett, and Paralegal Jan Dillon
When your personal injury case (motor vehicle crash, medical malpractice, products liability, etc.) settles, you will receive a settlement statement that references the total settlement amount with line-item required payments: Attorney’s fees (a percentage of a recovered amount, agreed upon at the beginning of representation); costs associated with your case (filing fees, medical record fees, expert retainer fees, copying, mailing, etc.); and possible reimbursement to lien holders associated with your treatment. After fees, costs, and other payments are accounted for, the remainder becomes your net amount, which is generally not subject to federal income tax.
Why Do I Have Liens?
When you or a loved one is injured in an accident and receives medical treatment, depending on how that medical treatment was paid for, there could be a lien against any settlement proceeds received. Liens can come from a variety of sources. The following are entities that potentially could have a lien related to your treatment:
- Medicare;
- Medicaid;
- Private Health Insurance Companies with ERISA self-funded plans;
- TRICARE, and/or CHAMPVA; and
- Health care medical providers for unpaid bills.
A medical lien is a legal device used by healthcare providers to secure payment for services rendered. In Virginia, a health care provider has the right to assert a lien in a personal injury case for any unpaid bills up to a certain amount for the service rendered. [1] All claims associated with a lien are evaluated by your legal team for relevancy to determine relatedness. If a claim is determined to be unrelated, your legal team will communicate with the lienholder to clarify what should be included in the lien. However, just because a charge is determined unrelated to your case, it does not negate your responsibility for paying unrelated charges.
Many insurance companies will seek reimbursement for the claims they have paid on your behalf. Insurance companies do not pay treating providers dollar for dollar because they have payment contracts with medical providers. Any lien your insurance company asserts is based off the amount the insurance company paid to the provider and not what the provider actually billed. With any federal or state-funded insurance company (Medicare, Tricare, Medicaid, etc.), the law gives priority to reimbursing any payments made on your behalf. This is also true if your health insurance is an ERISA plan.
Why Do I Have to Pay Back My Insurance When I Pay the Premiums?
The types of insurance that seek reimbursement are either protected by subrogation/reimbursement laws or through an agreement with your health insurance company (in the case of an ERISA plan). In federal and state-funded health insurance, all parties involved in your case – you, your legal team, even the defendants – have an obligation to pay back Medicare (or any federally-funded health insurance company) and Medicaid. This is true even if you settle without having an attorney represent you. If you have an ERISA plan through your employer, you entered into an agreement with the insurer that, if you settle a case, you will pay back the money your insurance company paid on your behalf. Although reimbursements to insurance companies are based on the contracted amount, they paid to treating providers, your legal team may be able to negotiate a lesser reimbursement amount; however, this is not a guarantee.
Although your health insurance company paid your treating providers based on a contractual amount, treating providers may still bill you for a balance, which is why a medical provider may assert a lien or balance owed.
At Gentry Locke, our personal injury attorneys in Virginia will always be able to process and to explain your settlement. Liens are complex and our attorneys and paralegals have the ability to work and negotiate the liens to an agreement that provides a good outcome for all parties. It is always better to be aware and pay now rather than down the line with a tax audit. Contact us if you have questions or need assistance. We are happy to help!
[1] Va. Code §8.01-66.2.
Thursday, October 17th, 2024
In the workplace, an employee is considered “exempt” or a “non-exempt” based on the employee’s specific job duties, and the manner and amount of compensation paid. Only non-exempt employees are eligible for overtime pay according to the Fair Labor Standards Act (“FSLA”). The Department of Labor’s (DOL) has announced that the minimum salary to qualify for overtime exempt status will increase to $58,656 effective January 1, 2025.
For some businesses the only option will be to comply by raising employee salaries to at least this new minimum level. However, it is not the only option and businesses should consider carefully whether they are better off under an alternative – like the fluctuating workweek. The minimum salary increase for overtime pay and the fluctuating workweek method are both related to how employees are paid, but they differ in a number of ways:
A. Minimum Salary Increase
The DOL’s minimum salary increase affects which salaried employees are eligible for overtime pay. Effective January 1, 2025, the minimum salary for overtime exempt status will increase to $1,128 per week ($58,656 annually). The DOL rule will also adjust the minimum salary threshold for the highly compensated employee exemption to $151,164. Starting July 1, 2027, salary thresholds will update every three years, by applying up-to-date wage data to determine new salary levels.
B. Exemptions
Certain businesses are exempt from the minimum salary requirements.
1. Amusement and recreational establishments.[1] Section 13(a)(3) provides an exemption from the minimum wage and overtime provisions of the FLSA for “any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year.” An “amusement or recreational establishment” will not be considered a “covered employee” and thus exempt under Section 13(a)(3) of the Act if it meets either Test (A) or Test (B). For Test A, whether an amusement or recreational establishment “operates” during a particular month is a question of fact and depends on whether it operates as an amusement or recreational establishment. If an establishment engages only in such activities as maintenance operations or ordering supplies during the “off season” it is not considered to be operating for purposes of the exemption. For Test B, because the language of the statute refers to receipts for any six months (not necessarily consecutive months), the monthly average based on total receipts for the six individual months in which the receipts were smallest should be tested against the monthly average for six individual months when the receipts were largest to determine whether this test is met.
2. Non-profit organizations.[2] The FLSA generally applies to (“covers”) employers whose business operations generate annual gross volume of sales or business done of at least $500,000. Certain non-profit charitable organizations will not be covered enterprises under the FLSA unless they engage in ordinary commercial activities that result in sales made or business done, such as operating a gift shop or providing veterinary services for a fee.[3]
In determining whether or not a non-profit organization is a covered enterprise, the Wage and Hour Division will consider only activities performed for a business purpose; it does not extend to the organization’s purely charitable, religious or similar activities.[4] As a result, contributions, in-kind donations, membership dues and proceeds from fundraising special events received by a non-profit are not counted toward the $500,000 business requirement.[5]
3. Other Exemptions. Other exemptions may apply as well, and it would be helpful to consult an attorney to determine whether there are other exemptions that may apply to your business.
C. Fluctuating Workweek Method
The fluctuating workweek method is an approved way to calculate overtime pay for employees who are paid a salary, are not exempt and do not work a fixed number of hours each week. This approach is complicated, but it will save significant funds. And to use it, the employer and employee must have a clear understanding that the salary compensates for all hours worked in a workweek.[6]
The fluctuating workweek (“FWW”) approach to calculating overtime pay requires that the employee’s hours must fluctuate from week to week (there cannot be a required fixed number of hours worked), and the employee must be paid a weekly salary — regardless of how many hours they work (even if they work less than 40 hours)– and the salary must be high enough to result in an hourly wage of at least the minimum wage, which in Virginia is currently $12.00. Under the FWW approach, the salaried employee is paid overtime pay calculated by determining ½ of his/her “average hourly rate” for time worked over 40 in that week. The “average hourly rate” is calculated by dividing the employee’s salary by the number of hours worked in a given workweek. The “average hourly rate” is calculated every workweek and will change based on the hours actually worked. The more hours the employee works in a workweek, the lower the OT rate paid.[7]
An example might help. In a typical situation, a salaried employee might be paid $44,000 annually or $846.15/week for 40 hours, so the normal “regular rate” for the required 40 hours is $21.15/hour. In the absence of a FWW agreement, if the salaried employee is not exempt, then employer would have to pay an overtime rate of $31.73 /hr. (1.5 x $21.15) for time worked over 40 hours. Under the FWW method of calculating the overtime pay, the amount owed will be less.
- Week One – employee works 38 hours. Under both regular and FWW methods, this employee will be paid the full salary of $846.15 for Week One even though s/he works less than 40 hours.
- Week Two – employee works 45 hours. Under the FWW method, the employee will be paid a total of $893.15, which includes the guaranteed salary of $846.15 for all 45 hours worked in Week Two, plus $47.00 in overtime pay. The overtime pay is calculated by determining the “average hourly rate” for Week Two, which will be $18.80 ($893.15 divided by 45), and then taking 50% of that rate ($9.40) and multiplying it by the 5 hours of overtime worked.
- Under the “regular OT” method, the employer must pay the employee $1,004.80 because the overtime pay due will be $158.65 (5 x the “OT” rate of $31.73)
- By comparison, the employer saves $111.65 in overtime pay in Week Two under the FWW method.
- Week Three – employee works 40 hours. Under both methods, his employee gets paid $846.15 for Week Three.
- Week Four– employee works 50 hours. Under the FWW method, the employee will be paid a total of $930.75, which includes the guaranteed salary of $846.15 for all 50 hours worked in Week Four, plus $84.60 in overtime pay. The overtime pay is calculated by determining the “average hourly rate” for Week Four, which will be $16.92 ($893.15 divided by 50), and then taking 50% of that rate ($8.46) and multiplying it by the 10 hours of overtime worked.
- Under the regular OT method, the employer must pay employee $1,163.45 because the overtime pay due will be $317.30 in OT pay (10 x the regular rate of $31.73).
- By comparison, the employer using the FWW method saves $232.70 in overtime pay in Week Four.
D. Considerations
Businesses may want to consider the alternative of implementing the fluctuating work week method of calculating overtime pay instead of raising salaries to the new DOL minimum level for exemption. There are, of course, trade-offs. The minimum salary is simple to manage and does not require new and frequent calculations. The fluctuating workweek method may save money in salary but may increase administrative costs in terms of time and money. Additionally, in some workplaces, employees may resist an employer’s desire to pay less overtime using the FWW method, and this could lead to morale issues, or worse collective action by disgruntled employees. It may be useful to consult a lawyer to help determine whether the fluctuating workweek method is an appropriate alternative to increasing the salaries of employees to comply with the new minimum salary.
E. Payroll Vendors
Many payroll vendors have created technology to help simplify the calculations under the fluctuating workweek methodology. If your business uses such a vendor, it is worth a phone call to see if they can help reduce the administrative costs of the fluctuating workweek to make it a more viable alternative.
[1] Fact Sheet #18: Section 13(a)(3) Exemption for Seasonal Amusement or Recreational Establishments Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov)
[2] Fact Sheet #14A: Non-Profit Organizations and the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov)
[3] Certain non-profits are automatically covered as “named enterprises,” such as schools, preschools, hospitals, mental health centers and residential care facilities regardless of the volume of business income, or lack thereof.
[4] See McMillan v. Boy Scouts of America-Aloha Council, 2012 U.S. Dist. LEXIS 83346 (D. Haw. 2012).
[5] Also keep in mind that even if the non-profit is not a “covered employer” under the FLSA, that same nonprofit may still have to comply with the FLSA overtime rules if it employs one or more employees whose job duties are engaging in interstate commerce. The Department of Labor takes a broad view of who can be covered under this provision and has suggested it covers employees who job duties require them to regularly make or receive interstate phone calls, or send and receive emails to persons or entities located in another state, or require the employee to transport persons or property to another state. These issues of who is covered by the FLSA are fact specific and require careful review by legal counsel, as do the rules involving the use of volunteers.
[6] The workweek is any designated 168 hours in seven consecutive 24-hour periods that can begin on any day and at any time. It is not necessary that all employees of a company have the same workweek. An employer is better off once a workweek is established to remain consistent to avoid paying overtime.
[7] Fact Sheet #82: Fluctuating Workweek Method of Computing Overtime Under the Fair Labor Standards Act (FLSA) / “Bonus Rule” Final Rule | U.S. Department of Labor (dol.gov)
Wednesday, October 16th, 2024
Cody’s chance to live a normal life ended at birth when a maternal infection went undiagnosed by doctors. His birth ushered in the beginning of a crushing legal and medical battle for his parents to get the assistance he was owed.
The family initially sought relief from the Virginia Birth Injury Fund (VBIF) — a no-fault insurance system that is supposed to cover expenses for victims of birth-related injury in Virginia. The General Assembly created the program in 1987 as a tort-reduction effort designed to keep malpractice lawsuits out of courts and cap awards for plaintiffs. The fund pays claimants directly with money that comes from premiums paid by doctors and hospitals that enroll in the VBIF program.
Cody’s claims were initially denied by VBIF, whose own team of medical malpractice attorneys and consultants aggressively fought Cody’s admission into the program.
After years of litigation, VBIF admitted Cody into the program. However, the VBIF also instructed Cody’s family to apply and receive Medicaid benefits. The VBIF then instructed Cody’s family to initially filter all payment requests to VBIF through Medicaid. This resulted in Medicaid paying for treatment for Cody, and others, which was otherwise payable by VBIF. This was in contravention of federal law.
In other words, Virginia taxpayers were paying for children’s medical expenses that were supposed to be covered by VBIF.
Cody’s family, represented by Gentry Locke, filed a qui tam action, which is a lawsuit against entities that make false claims to the U.S. government. In this case, we argued that VBIF forced Cody’s family to make a false claim when they sent paperwork to Medicaid stating they had no other source of payment for medical expenses.
After years of litigation, VBIF agreed to make changes. In late 2018, more than 15 years after Cody was born, VBIF paid $20.7 million to resolve the matter.
During the course of the VBIF lawsuit, we discovered Florida had a birth injury program called the Neurological Injury Compensation Association (NICA), which was modeled after the Virginia program. Like Virginia, Florida’s program was shifting costs to Medicaid rather than paying claims for participants.
In 2019, we filed an action in Florida against NICA to recover funds improperly paid by Medicaid for NICA’s plan participants.
NICA’s main defense was that it claimed it was a part of the state government and therefore could not be sued. Virginia initially made a similar claim, but we successfully argued that the VBIF was a private insurance fund and not a state agency.
Ultimately, NICA paid $51 million to settle the case.
The cases brought financial settlements for our clients, but the cases also initiated real changes at the state government level. In Virginia, the General Assembly passed legislation requiring VBIF to buy health insurance plans for its participants. The fund can no longer force claimants to send claims to Medicaid.
Florida went even further. The state legislature made significant changes to NICA, added oversight, and even paid $100,000 to every plan participant. Like Virginia, the Florida fund is now forbidden from forcing participants to submit initial claims to Medicaid.
These cases have given us an opportunity to become well versed in both VBIF policy, procedure, and remedies, as well as related qui tam lawsuits.
Contact us today to speak with one of our medical malpractice attorneys in Roanoke, Lynchburg, Richmond, or Norfolk.
