How Much Do I Keep From My Settlement?

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:

1. Medicare;
2. Medicaid;
3. Private Health Insurance Companies with ERISA self-funded plans;
4. TRICARE, and/or CHAMPVA; and
5. 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.

Will the New DOL Minimum Salary Increases Affect Your Business, and Is the Fluctuating Workweek a Viable Alternative?

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)

The Virginia Birth Injury Fund: A Story

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.

When Can a Virginia Circuit Court Narrow Discovery?

Monday, October 14th, 2024

Mattawoman Energy, LLC v. Cove Point LNG, LP (August 6, 2024)

Discovery can be a time-consuming, costly, and laborious process. In many cases, discovery requests seek information that is sensitive, confidential, or difficult to produce. The party on the receiving end of a voluminous set of discovery requests can hardly be blamed for wanting to avoid responding wherever possible. But when is it appropriate for a trial court to narrow the scope of discovery to specific issues in the case?

In August, a three-judge panel of the Court of Appeals of Virginia issued a new memorandum opinion reversing a circuit court’s decision to narrow the scope of discovery. Mattawoman Energy, LLC v. Cove Point LNG, LP, 2024 Va. App. LEXIS 450 (2024). The Court held that the narrowing of discovery to one issue was an abuse of discretion where it impaired the defendant’s “substantial right to pursue legally cognizable defenses.” This decision clarifies that even when a motion for summary judgment is pending, a defendant’s right to discovery extends to all active and relevant defenses.

Facts—The Pipeline Capacity Reservation

Mattawoman Energy, LLC (“Mattawoman”) had plans to build a natural gas-fueled power plant in Maryland. It contracted with Cove Point LNG, LP (“Cove Point”) for natural gas transportation services via Cove Point’s natural gas pipeline. Part of the parties’ agreement involved usage charges for gas delivered to the plant. However, Mattawoman never built the plant, and no gas was ever delivered.

Also part of the agreement—and the focus of this case—was a separate monthly charge to reserve a portion of Cove Point’s pipeline capacity for Mattawoman’s fuel needs. Although no gas was ever actually delivered, Cove Point claimed that it had reserved capacity for Mattawoman, and it invoiced Mattawoman accordingly.  When Mattawoman didn’t pay, Cove Point sued for breach of contract, requesting over $6.3 million in damages.

Procedural History

Cove Point filed suit in the Circuit Court of Henrico County. Mattawoman demurred, arguing that Cove Point had failed to allege the satisfaction of certain conditions precedent to its breach of contract claim, including the construction of the power plant and the establishment of a delivery connection point. After the circuit court overruled the demurrer, Mattawoman answered and raised five affirmative defenses, including frustration of purpose, failure to mitigate damages, and failure to satisfy a condition precedent.

Mattawoman also served discovery requests on Cove Point, including interrogatories and requests for production of documents, and Cove Point responded. Cove Point then moved for summary judgment.

After the summary judgment had been filed, Mattawoman moved to compel responses to a number of its discovery requests, roughly half of which it claimed had gone unanswered. Cove Point moved for entry of a protective order narrowing the scope of discovery to one issue: whether Cove Point had, in fact, reserved transportation capacity on the pipeline for Mattawoman’s anticipated fuel needs. Cove Point also sought to have Mattawoman’s defenses struck as legally meritless.

The Circuit Court’s Decision

The circuit court granted Mattawoman’s motion to compel only as to documents related to Cove Point’s reservation of pipeline capacity. It entered a partial protective order and further ordered that the scope of discovery in the action be limited to the issue of the capacity reservation. However, the circuit court declined to rule on the legal sufficiency of Mattawoman’s affirmative defenses, instead holding the issue in abeyance until after briefing and argument on Cove Point’s motion for summary judgment. As Mattawoman noted in its opposition to the motion, the circuit court’s decision precluded Mattawoman from taking discovery on four of its five defenses. Ultimately, the circuit court granted summary judgment in Cove Point’s favor, which Mattawoman appealed.

The Court of Appeals’ Holding and Analysis

On appeal, a three-judge panel of the Court of Appeals reviewed the circuit court’s limitation of discovery under an abuse of discretion standard—and reversed. The Court noted that decisions to grant or deny discovery are only reversed when they are “improvident” and affect a party’s “substantial rights.” In this case, the circuit court’s interference with Mattawoman’s ability to discover relevant evidence in support of its defenses affected Mattawoman’s substantial rights. The circuit court had “drastically reduced the number of issues in the case and effectively precluded Mattawoman from raising a genuine dispute of material fact” in opposition to summary judgment.

The Court distinguished the case from the Supreme Court of Virginia’s 1992 decision in Dick Kelly Enterprises v. City of Norfolk, where the circuit court’s limitation of discovery was not an abuse of discretion. In that case, the circuit court limited discovery, but simultaneously granted partial summary judgment as to certain affirmative defenses. Because the court’s decision to narrow discovery only excluded those topics that it had judged legally meritless, the defendant’s rights were not impaired. In fact, continued discovery as to those defenses would have been an undue burden on the plaintiff and a waste of judicial resources. This was very different from Mattawoman’s situation, where the circuit court impaired its opportunity to pursue defenses that had not been dismissed.

Key Takeaways

In effect, the Court of Appeals’ decision emphasizes that summary judgment is a post-discovery mechanism. While issues remain live, the parties have the right to pursue them, including by taking discovery. Discovery limitations are the wrong vehicle for narrowing the focus of a case. The desire to “cut to the chase” in litigation is understandable, but the trial court cannot short-circuit the discovery process for issues that remain legally cognizable. If the court is to narrow discovery, it first needs to deal with the claims or defenses to be excluded from that narrowed scope.

Parties should be wary of narrowed discovery that excludes discovery on live issues, such as active defenses. Conversely, issues that are no longer active—affirmative defenses that have been judged meritless as a matter of law, for example—do not give a party the right to take discovery on those topics. Discovery extends only to ongoing claims and defenses; when a claim or defense dies, the associated right to discovery dies with it.

Five Ways Your Business is Probably Affected by Intellectual Property Law

Friday, October 11th, 2024

Gone are the days when intellectual property was consigned only to the scientific inventors, artists, and advertising agencies of the world. Now, over thirty years have passed since the public was introduced to the world wide web, and the internet has permanently changed societal, cultural, commercial, and legal norms. Computer software and technology falls squarely under the vast umbrella of U.S. intellectual property (IP) law, but those laws affect far more than software developers and tech companies. Most businesses encounter numerous intellectual property concerns every day, and, yet many remain unaware of the benefits and pitfalls they face. Here are five ways your business might regularly interact with IP, how you can avoid traps, and how you might harness IP to your benefit.

1. Branding 101: The Dangers and Power of Trademark Law

Many startups and small businesses view trademark protection as an unnecessary expense, especially early in the company’s development. Costs are already high between legal fees to form the entity, marketing costs, product development, and human capital investments. But intellectual property concerns cannot afford to take a backseat, especially when an ounce of protection can be worth a pound of cure. Consider the following scenario:

The year is 2020. Mary is finally realizing her lifelong dream of starting a candle company, which she names SKYLARK AROMATICS. For the next four years, Mary finds success selling her scented candles online and in her single retail location in Virginia, and she spends nearly $100,000 promoting her SKYLARK AROMATICS brand.

In 2024, Mary receives a letter in the mail from an attorney representing SKYLARK CANDLE COMPANY, a Tennessee business selling scented candles online. This attorney demands that Mary stop selling candles under the Skylark name and attaches a federal trademark registration demonstrating that SKYLARK CANDLE COMPANY has nationwide rights to the use of “Skylark” in association with selling scented candles and that SKYLARK CANDLE COMPANY has been using the Skylark name for nearly twenty years. Mary now faces a choice: manage the extensive costs of rebranding or stare down the barrel of an expensive federal trademark infringement lawsuit that she will likely lose.

Unfortunately, many businesses have found and will find themselves in Mary’s situation, and these cases can incur tens, if not hundreds, of thousands of dollars in rebranding and litigation costs as a result of unknowing trademark infringement. But there are ways to avoid ending up in Mary’s predicament. If businesses, at their inception or early in their marketing development, connect with an IP attorney, that attorney will be able to confirm that a business’s chosen branding is unlikely to commit infringement, identify any possible conflicts, and even help that business obtain nationwide protection for itself under a federal registration of its own.

A foray into trademark law can be marred by rough seas, but learning how your business should navigate those waters can save your company from the financial and reputational costs associated with rebranding. Further, thinking about trademark protection early in your business’s development can bolster your brand’s protections if you develop a distinct trademark that will set your product or services apart in the market. Then you can pursue a federal trademark registration which, if granted, will preserve your nationwide, exclusive right to use the mark in that market and will serve as burden-shifting, prima facie evidence that your trademark is valid and protectable.

2. Two Ways Your Business Might Affected by Generative AI

The advent of generative AI models and machine learning has seen a boom of technological curiosity, and many businesses are interested in how generative AI can help grow their business, cut costs, and maximize operational efficiency. However, there are potential pitfalls that every business should be aware of as it begins to consider integrating generative models into day-to-day operations:

1. Copyright Infringement. Perhaps your business is interested in developing an AI model for internal or external use. Maybe your company sees the cost-effective branding opportunities that arise from using a generative image model subscription platform like Midjourney to create art and visuals for advertising. Either way, it is crucial to be aware of the intellectual property concerns inherent to these interactions.

a. Ingestion as Infringement. Significant litigation is ongoing regarding whether the use of materials posted on the internet by others to train an AI model constitutes an infringement of those authors’ respective copyrights.[1] With many cases ongoing and few decided, the judicial question concerning copyright infringement liability for AI developers related to model training is open-ended.

b. Outputs as Infringement. Copyright law can be more traditionally applied to images and texts created using AI. If you generate an image or text that is a precise copy of or substantially similar to an existing copyrighted work, traditional copyright infringement liability may arise. This goes for copyrighted designs, characters, and other protected fictional elements, as well. Generative AI cannot be used to subvert the longstanding protections afforded to authors of protected works. Perhaps your business has a rich portfolio of expressive materials (books, marketing packages, images, software, video, etc.). If any of these are publicly accessible or viewable on the web, there’s a more-than-zero chance data comprising those digital copies has been scraped and used to train a model, meaning the risk of infringing outputs, whether by the intentional request of a prompter or through a model malfunction (known in the vernacular as a “hallucination”), has risen.

For an in-depth discussion of copyright issues related to AI, see our article “Reviewing Copyright & Generative AI: The Good, The Bad, and the Unanswered.”

2. Confidentiality, Trade Secrets, and Privacy. Perhaps more pervasive across a variety of industries, generative AI also poses a threat to businesses’ trade secrets and confidential information. First, prompts entered into publicly available models like ChatGPT are not confidential, and those prompts are used to continuously train the model. So, if you work in an industry that deals with sensitive or confidential information, ensuring that you and your employees are not using generative AI tools to complete projects or answer questions that may require using sensitive information in the prompt is paramount to meeting the privacy needs of your business. Second, many businesses are seeking integrate AI into their everyday operations, whether by a Software as a Service (SaaS) agreement with an independent developer who will house the model and provide access, or by way of developing models that are wholly integrated into and controlled by your business. These scenarios raise different but equally vital questions about the ownership of the AI model and software, the outputs, and ingested IP. Further, businesses’ levels of control over the servers and storage housing the model and its relevant data will determine its privacy obligations and the privacy obligations it should seek to impose upon and be indemnified from by the AI developer. Shoring up each party’s obligations related to the treatment of IP or sensitive data post termination of an agreement is also vital. In any instance, addressing ownership of the model and its outputs, and addressing the various data privacy concerns implicated by its use, control, and development are crucial to maintaining security over your business’s– and your clients’– confidential information, IP, and data.

3. Publicly Available vs. The Public Domain: Avoiding Copyright Infringement Liability Online

Let’s return to Mary and her candle business, now tastefully rebranded as “FRESH SPARROW AROMATICS”. In the wake of her rebranding, Mary decides to revamp her website. She quickly realizes that a massive webpage of sprawling text reminiscent of blog forums from the early 2000’s just won’t be enticing to her potential consumers or affiliates. She needs images to populate headings, banners, subpages, and articles across her online platform. Her web content management system has some basic image copy available, but she wants to customize her site. So, she heads to Google Images and copies a few photos from the browser to fill a banners or article thumbnails. All is well, and Mary finally feels comfortable with her digital presence… until she receives a certain letter or email.

A law firm claiming to represent the original creator or owner of an image she copied from Google claims Mary has committed copyright infringement, and demands thousands of dollars, including attorney’s fees, to settle the claims. Often these demands read as form language, and she might be tempted to brush them off as phishing or scams. However, Mary would be in error to do so. Copyright law grants certain exclusive rights related to use, display, reproduction, and derivative creation of protected works to creators/owners of those expressions.[2] Simply because an image is publicly accessible does not mean that it is free to use or within the public domain. In short, Mary has likely committed copyright infringement because she failed to properly obtain a license to use the images she placed on her website.

However, Mary is not entirely out of luck. In many cases, the nature of the infringing act will be nominal and likely will have derived no profit for the infringer. Thus, the letter’s claim for thousands of dollars is likely an exaggerated demand intended to scare defendants into paying quickly to avoid a lawsuit. In reality, plaintiffs are entitled to damages in two ways: (1) actual damages, including lost profits and a reasonable licensing fee (determined based on fair market value, not the plaintiff’s proposed fee), or (2) statutory damages beginning at $750 for infringement of works that are registered with the U.S. Copyright Office.[3] In truth, most claims like these are never worth the exorbitant amounts demanded, and many of these aptly named “copyright trolls” settle for far less or back down once the defendant retains a lawyer. However, to avoid any liability exposure, Mary should make sure she has gone through proper channels to obtain a license to the images she uses for her digital content.

4. Trademark Scams and How to Spot Them

 Mary has put her trademark and copyright infringement woes behind her, and her FRESH SPARROW AROMATICS brand is thriving. Then she receives yet another email, this time from an attorney purporting to represent someone wanting to apply for a trademark identical to Mary’s. These emails will often impose a false sense of urgency by suggesting that the lawyer believes Mary has superior rights to the trademark and should hire the attorney first, so she is not beaten to the punch. These solicitations contain numerous misrepresentations of trademark law, and there is almost never another potential trademark applicant. Namely, trademark priority, in general, is based on the first to use the mark, not the first to register it. In fact, many of these solicitations are not from real attorneys. Instead, these emails are scams designed to prey on businesses by scaring them into believing they will lose valuable brand protection. Similarly, some emails will purport to be from the “World IP Office,” the ‘US Trademark Agency,” or other seemingly official sources, asking you to pay some fee related to your trademark. The only official federal trademark registry in the United States is the United States Patent and Trademark Office (USPTO), and the USPTO will rarely solicit payment over email. These fake agencies are also scams and should be ignored. In the digital age, trademark-related scams are on the rise, but, in our hypothetical, Mary contacts her counsel, who advises her that these emails are illegitimate. This time, Mary can avoid the trap and successfully protect her brand from these online predations.

5. Pause Before You Press “Play”: Music Streaming in Commercial Settings

Another common trap that plagues many businesses arises from improper music licensing. A common misconception is that one can use his personal music streaming account for any purpose. This is not the case. Most personal music streaming subscriptions limit licenses only to personal or non-commercial uses, charging higher rates for commercial situations. As such, the use of a personal streaming account to display music at a company-sponsored or commercial event likely constitutes a copyright violation of each song played. The same principle applies to unlicensed live performances of protected songs. Because a live band is publicly performing at a commercial venue, the venue owner has control over and profits from the band’s infringing performances, leaving the business exposed to secondary liability. This is not mere academic theory, either. In March 2024, the American Society of Composers, Authors, and Publishers (ASCAP) filed thirteen separate copyright infringement claims against bars and restaurants nationwide for the unlicensed use of songs belonging to artist who are ASCAP members.[4] To avoid potential liability, a business should always seek out a commercial license when planning the soundtrack for its next event.[5]

While the modern age sees businesses regularly interacting with IP in a myriad of situations, these five scenarios represent a few common ways companies are interacting with IP. Have questions on how your business might be affected by intellectual property law? Contact us today for assistance.

[1] See generally Doe 1 et al v. Github, et al., No. 4:22-cv-06823, 2023 WL 3449131 (N.D. Cal. Nov. 13, 2022); Andersen v. Stability AI Ltd., No. 3:23-cv-00201, 2023 WL 7132064 (N.D. Cal. Jan. 13, 2023) (dismissing many of the plaintiffs’ claims); Getty Images (US) Inc. v. Stability AI, Inc., No. 1:23-cv-00135 (D. Del. filed Feb. 3, 2023); Kadrey and Silverman, et al. v. Meta Platforms, Inc., No. 3:23-cv-03417 (N.D. Cal. filed July 7, 2023); Silverman v. OpenAI, Inc., No. 3:23-cv-03416 (N.D. Cal. filed July 7, 2023); Authors Guild, et al. v. OpenAI, Inc., et al., no. 1:23-cv-08292 (S.D.N.Y. filed Sept. 18 2023) (consolidated Feb. 6, 2024); The New York Times Co. v. Microsoft Corp., et al., 1:23-cv-11195-SHS (S.D.N.Y. filed Dec. 27, 2023); Daily News, LP, et al. v. Microsoft Corp., et al., 1:24-cv-03285-SHS (S.D.N.Y. filed April 30, 2024); Order Granting in Part and Denying In Part Motions to Dismiss First Amended Complaint, Andersen v. Stability AI Ltd. No. 3:23-cv-00201 (filed Aug. 12, 2024) (“Whether evidence can support each of the theories and whether plaintiffs will need to choose between theories (e.g., between direct infringement based on selling a product containing effective copies of copyrighted works or violating plaintiffs’ rights to restrict distribution of their works) will be addressed at summary judgment”).
[2] See 17 U.S.C. §§ 102, 106.
[3] See 17 U.S.C. § 504; Davis v. Gap, Inc., 246 F.3d 152, 166 (2d Cir. 2001) (explaining that, in determining actual damages for copyright infringement, a licensing fee is based not on what the copyright owner would have charged but on a fair market value of the work in context of the infringing use).
[4] Venues Refuse to Pay Songwriters While Profiting from their Music, ASCAP (March 5, 2024), https://www.ascap.com/press/2024/03/03-05-venues-refuse-pay-songwriters.
[5] For ease, Spotify’s business-oriented affiliate, Soundtrack, offers commercial streaming subscriptions. See Spotify for Business, Spotify (Oct. 4, 2024), https://www.soundtrackyourbrand.com/spotify-business?utm_source=bing&utm_medium=cpc&utm_campaign=bb-search-spotify-usa&utm_content=spotify%20commercial%20license&msclkid=21504d97640f1ae180e12a973b416a78&utm_term=spotify%20commercial%20license.

Do You Have a Potentially Successful Medical Malpractice Case?

Thursday, October 10th, 2024

So you think you have been the subject of medical malpractice? How do you know if this could be a potentially successful case?  First, you must make sure that your statute of limitations has not run.  Generally, Virginia gives two years from the date of the incident to file a medical malpractice case.  There are certain exceptions to this rule, but generally, the two-year rule is the one to follow.  For example, if a doctor operates on the wrong leg, then most probably your statute would run two years from the date of the surgery on the wrong extremity.  Two years can go by very quickly, so it is best to consult a lawyer as soon as possible.  Even if you believe the two years have passed, it is always a good idea to call an attorney to make sure that an exception to the two-year statute of limitations rule does not apply to your circumstances.

To have a meritorious medical malpractice action, you must be able to successfully prove that one or more of your healthcare providers (doctors, nurses, dentists, etc.) committed “malpractice” and that that malpractice was a “proximate cause” of your injuries and damages. So, what is malpractice?  “Malpractice” is defined as the failure of a healthcare provider to act with the degree of skill and diligence of a reasonably prudent healthcare provider. The fact that you had a bad outcome does not prove malpractice.

There is also a second element to have a potentially successful medical malpractice case in Virginia and that is “proximate cause.” “Proximate cause” is defined as a cause which in natural and continuous sequence produces the injury and damage and without which the injury and damage would not have occurred.  So, basically, you must prove that the medical malpractice caused your damage.  For example, if the surgeon performed surgery on your wrist and now you have no feeling in your hand, you must prove that the doctor who performed surgery on your wrist performed the surgery incorrectly (malpractice) and that the incorrectly performed surgery was the cause of the loss of feeling in your hand. These elements may only be proven through opinions of an expert witness, another physician who practices in the same or similar specialty as the surgeon who operated on your wrist.

Plaintiff’s medical malpractice law is a complicated area of law.  It is best to consult medical malpractice attorneys immediately once you believe that you have been a subject of malpractice.  An attorney can answer your questions, help you obtain your medical records, and evaluate your claim to determine whether you would potentially have a successful case. Contact us today to speak with one of our medical malpractice attorneys in Roanoke, Lynchburg, Richmond, or Norfolk.

I Signed a Liability Waiver Form and Then I Got Hurt – Now What?

Monday, October 7th, 2024

Most of us have signed liability waiver forms before participating in certain activities. We encounter these forms in various circumstances and more often where companies engage in dangerous or high-risk activities. The following industries are more likely to require customers/visitors to sign liability waiver forms prior to engaging in the offered activities:

• Musical performances/concerts
• Zoos
• Athletic events
• Amusement parks
• Health and fitness clubs
• Wall climbing entities
• Sporting events
• School field trips
• Trampoline parks
• Outdoor park activities/adventures
• Water parks

A liability waiver form may also be referred to as a release, waiver, release agreement, or disclaimer, among other things. When you sign a liability waiver form you are essentially entering into a contract with the person/entity offering the activity. The intent of the contract is to prevent you from recovering damages if you are injured or killed while engaging in the activity.

A typical liability waiver form contains the following or similar language:

I AM VOLUNTARILY PARTICIPATING IN THE AFOREMENTIONED ACTIVITY AND I AM PARTICIPATING IN THE ACTIVITY ENTIRELY AT MY OWN RISK. I AM AWARE OF THE RISKS ASSOCIATED WITH PARTICIPATING IN THIS ACTIVITY, WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO: PHYSICAL OR PSYCHOLOGICAL INJURY, PAIN, SUFFERING, ILLNESS, DISFIGUREMENT, TEMPORARY OR PERMANENT DISABILITY (INCLUDING PARALYSIS), ECONOMIC OR EMOTIONAL LOSS, AND DEATH. I UNDERSTAND THAT THESE INJURIES OR OUTCOMES MAY ARISE FROM MY OWN OR OTHERS’ NEGLIGENCE, CONDITIONS RELATED TO TRAVEL TO AND FROM THE ACTIVITY, OR FROM CONDITIONS AT THE ACTIVITY LOCATION(S). NONETHELESS, I ASSUME ALL RELATED RISKS, BOTH KNOWN AND UNKNOWN TO ME, OF MY PARTICIPATION IN THIS ACTIVITY.

These liability waiver forms are used in an effort to remove and/or limit the liability for the person or entity offering the services or activities. These forms may also serve to deter the injured participant from even making a claim. The inured party may believe that because a liability waiver form was signed, there can be no recovery.

While most states will enforce liability waiver forms, Virginia is in the minority, and generally speaking, will not enforce pre-injury liability release forms because they are against public policy.

This principle was initially established in 1890 in the case of Johnson’s Adm’x v. Richmond D.R. Co., 86 Va. 975 (1890). In that case, the Supreme Court of Virginia stated that:

[T]o uphold the [waiver] in question would be to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void.

This principle was affirmed in the 1992 case of Hiett v. Blake Barcroft Community Ass’n, Inc., 244 Va. 191 (1992), where the Supreme Court of Virginia concluded that a pre-injury release provision signed by the plaintiff was prohibited by public policy and thus, void.

Even if the liability waiver form is void, defendants may attempt to use the form as evidence that the participant knew and understood the risks associated with participating in the activity. The defendant will argue that the plaintiff assumed the risk of his injury, which is a complete bar to recovery in a Virginia personal injury or a Virginia wrongful death action. Your lawyer should file a motion in limine to prevent the waiver form from being admissible for any purpose.

To conclude, generally speaking, pre-injury liability waiver forms are not enforceable in Virginia because they are against public policy. However, there are exceptions to this general rule, such as property damage waivers and indemnity agreements – where liability waivers may be upheld and enforced. If you were injured, or a loved one killed after signing a pre-injury liability release form, you should immediately contact personal injury attorneys in Virginia or a Virginia wrongful death attorney to assist you.

Are Non-Compete Agreements Lawful in Virginia?

Monday, September 30th, 2024

Article originally published by Valley Business Front in Issue 193, October 2024: Valley Business FRONT, Issue 193, October 2024.

In the 35 years that I have represented Virginia businesses and executives in workplace matters and litigation, I have lost count as to the number of times I have heard someone say words to the effect that non-compete agreements are “unlawful” in Virginia. (Spoiler alert: they can be lawful.) This article provides answers, and an update.

As a General Statement, Non-Compete Agreements may be Valid in Virginia if Narrowly Tailored to Prevent Direct Competition.

It is true that restraints against competition are not favored in Virginia. They may be enforceable, however, when the agreement is “narrowly drawn to protect the employer’s legitimate business interest, is not unduly burdensome on the employee’s ability to earn a living, and is not against public policy.” Omniplex World Servs. Corp. v. US Investigations Servs., 270 Va. 246, 249 (2005). In evaluating these factors, courts consider the function, geographic scope, and duration of the restriction.

The function element is assessed “by determining whether the prohibited activity is of the same type as that actually engaged in by the former employer.” Home Paramount v. Schaffer, 282 Va. 412, 416 (2011). In other words, where the restriction only precludes the employee from doing competing work (as opposed to doing any work for a competitor), it is generally enforceable. Enforceable restrictions prohibit an employee from engaging in activities that actually or potentially compete with the employee’s former employer.

Courts evaluate these cases on their own merits, equities, and context. But the above concepts provide the framework for the types of non-compete agreements that may be enforceable in Virginia.

But Wait—There is a Virginia Law that Invalidates Non-Compete Agreements with So-Called “Low-Wage Employees.”

I blame Jimmy John’s. In October 2014, the national media reported that Jimmy John’s required all its employees to sign non-compete agreements. “It’s one thing for a high paid exec to be prohibited from working at a competitor. But Jimmy John’s actually imposes non-compete clauses on its low-wage workers.” Jimmy John’s Under Fire for Worker Contracts, CNN Money (October 22, 2014). As the public policy evolved, in October 2016, the Obama Administration issued a “call to action” urging state policy makers to enact reforms to reduce the prevalence of non-compete agreements, especially those imposed upon so called “low-wage workers.” In 2020, Virginia responded. Virginia enacted a law that prohibits employers from entering into, enforcing, or threatening to enforce, a covenant not to compete with a “low-wage employee.” (The law does not apply to agreements in effect prior to July 1, 2020.) A covenant not to compete is defined to include a restriction that would prohibit an employee from providing services or products to a customer post-employment, unless the employee initiates contact with or solicits the customer. There are some limited exceptions, most notably for employees who are “predominately” paid by commission.

“Low-wage employee” is a misnomer. The General Assembly adopted a moving target definition that ties the “low wage” threshold to the “average weekly wage of the Commonwealth.” The practical effect is that a new average weekly wage is calculated each year when, inevitably, the average weekly wage goes up. On January 16, 2024, the Virginia Department of Labor & Industry (“DOLI”) announced that the average weekly wage for the next 12 months had risen to $73,320 annually, or $1,410 per week. (I expect that many persons who earn a salary of $73,000 would be surprised to learn that they are considered “low wage” employees in the Commonwealth.)

The Federal Government is Attempting to Invalidate Non-Compete Agreements.

As you probably heard, on April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) that was set to take effect on September 4, 2024. The Rule would have included a “comprehensive ban on non-competes with all workers.” The Rule aimed to prohibit employers from using or enforcing non-compete agreements with employees or independent contractors when their employment ends, in order to address what the FTC deemed “unfair methods of restricting competition.” The Rule was met with substantial criticism from business advocates as being a drastic, and unwarranted, expansion of power by a Federal agency.

On August 20, 2024, a U.S. District Court Judge held that the Rule was “promulgated . . . in excess of [the FTC’s] statutory authority.” Ryan LLC v. Federal Trade Commission, 3:24-cv-00986-E (N.D. Tex. 2024). As a result, the Court held that, the Rule would be “set aside.” Although the decision will likely be appealed, it seems unlikely the Rule will ever take effect. [Full disclosure—when the FTC first announced the proposed Rule in 2023, I was confident that the Rule would never take effect because I was certain the FTC had exceeded its authority. I was surprised that we had to wait until the 11th hour to receive the good news!]

Be aware that in 2023, the General Counsel (“GC”) to the National Labor Relations Board (“NLRB”) opined that an employer who proposes, maintains, or seeks to enforce a post-employment non-compete agreement, even in a separation agreement, has violated Section 8(a)(1) of the National Labor Relations Act (“Act”), except in very limited circumstances. In the GC’s view, most non-compete provisions are overbroad and chill non-supervisory employees in the exercise of their Section 7 rights. This position, if applied and upheld, will be available to any non-supervisory employee, even those without a union, because Section 7 rights apply to non-supervisory employees. Similar to the FTC, it is my judgment that the NLRB lacks the authority to impose this rule upon employers. To my knowledge, however, the courts have yet to rule on the NLRB’s efforts to regulate non-compete agreements.

Employers Seeking to Protect Their Interests Against Unfair Competition Have Other Options.

This article primarily addresses non-compete agreements. It is important to add that employers have other options to protect themselves against unfair competition. As one example, companies are increasingly including separate “non-solicitation” covenants in their agreements with key employees that apply in the post-employment context. Such covenants are well suited to executives, sales personnel, and key employees who are customer-facing. The concept is that departing employees can compete as long as they stay away from certain customers for a period of time. Here’s an example of the concept:

During your employment, you gained access to our trade secrets and other confidential information. If your employment ends, you agree not to solicit, directly or indirectly, or perform work, for any known customer or known active prospect for a period of 18 months.

These “non-solicitation” covenants must also be narrowly tailored. For example, assume a company has thousands of customers, and dozens of distinct product lines in various locations throughout the world. Assume also that a particular sales employee focuses upon a single product line in a limited region with a handful of customers. It would likely be invalid if the non-solicitation covenant could be interpreted to include thousands of customers unknown to this sales employee in other product lines or locations. As another tool, it is well-settled that a company can require that its employees not use, disclose, or otherwise misappropriate the company’s trade secrets, or other information that is confidential or proprietary. Here too, however, companies should not overreach. Not all internal information can be kept confidential. For example, it is a violation of Federal and Virginia law to prevent an employee from discussing or disclosing his or her own compensation.

Final Thoughts and Recommendations

There is much more to say about an employer’s efforts to minimize its risks if a key employee were to leave and seek to compete against their former employer. There is no one-size-fits all solution. I highly recommend that an employer be proactive and strategic well before an employee departs. Business owners should invest the time to evaluate the steps they can and should take. (In 2006, my law partner Greg Haley wrote an article in which he urged employers to cast their nets with a focus upon catching the “whales, not the minnows.” This remains excellent advice.)

Tractor Trailer Accidents on I-81, I-95 and Other Interstates Involving Cars, Buses and Motorcycles

Monday, September 30th, 2024

Accidents caused by tractor trailer drivers and others involved in the transportation of goods on interstate highways is a growing concern. Despite the advancement of technology, such as Collision Avoidance Systems, onboard inward and forward-facing video cameras, and electronic driver records of duty status, crashes continue to occur at an alarming rate.

Impact of a Tractor Trailer Collision

The National Highway Traffic Safety Administration (NHTSA) has reported a growing number of deadly truck crashes. In fact, in 2021, there was a 13% increase in the number of deaths caused by tractor trailer crashes. In 2021 alone, there were over 5,600 deaths caused by collisions with tractor trailers in the United States.

Survivors of truck crashes are often badly injured, and many suffer from permanent injuries such as paraplegia, quadriplegia, brain injury, loss of limb, and debilitating back and neck problems.

When a tractor trailer is involved in a motor vehicle accident, the injured individuals or their estate must reach out to an experienced personal injury attorney in Virginia who has extensive knowledge about not only the devastating injuries but also the highly technical statutes, regulations, and standards that apply to truck drivers, motor carriers, and others involved in the transportation of goods on interstate highways. It is imperative that injured individuals and estate representatives do their research to find a personal injury law firm that has the size and strength necessary to investigate, hire experts, and litigate in both state and federal courts.

A recent horrific crash is illustrative of the threat to motor vehicle occupants on Virginia highways when a driver fails to follow safety rules and regulations designed to prevent the exact scenario that ultimately resulted in devastating injuries and death.

On December 16, 2022, a tour bus was traveling east on Interstate 64 near Williamsburg, Virginia. It was past 1:30 a.m. and presumably the innocent occupants of the bus were resting comfortably on their way to their tourist destination. The driver of the tour bus was experiencing a mechanical problem with the bus, which prevented him from going more than 20 mph – 25 mph on the dark highway. The posted speed limit was 65 mph. The bus’s headlights and taillights were functioning properly at the time of the crash.

Unbeknownst to the tourists on the bus, a tractor trailer was approaching them from the rear – travelling between 65 mph and 70 mph. The driver was using his cruise control. Without warning, the tractor trailer collided with the back of the bus, spinning it sideways and knocking it through a guardrail and into the oncoming lanes of travel.

According to the August 12, 2024 NTSB Highway Investigation Report HIR-24-05: “As a result of the crash, three bus occupants died, 9 sustained serious injuries, and 11 sustained minor injuries.”

The NTSB’s investigation revealed: “ . . . The truck driver’s lack of response to the slow-moving vehicle . . . was due to fatigue from excess driving time and lack of sleep . . . The truck’s motor carrier . . . created fictitious driver accounts for its vehicles’ electronic logging device systems that enabled drivers to be operated beyond federal regulations, creating an opportunity for fatigued driving.”

As a result of the crash, the NTSB issued six new safety recommendations and reiterated prior safety recommendations from other crash investigations. Unfortunately, such recommendations are not mandatory and often go unaddressed by state and federal agencies and some motor carriers.

Mitigating Risk

We have all contributed to the high cost of interstate highways and refraining from traveling on them is simply impractical given the growing congestion on secondary roads. However, there are a few things each of us can do to reduce the likelihood of becoming victims of another driver’s negligence.

First, be an alert and conscientious driver, or passenger, at all times. Keep your head on a swivel and look around for potential signs of danger, such as tractor trailers headed in your direction without a clear indication that they are turning away from you or appropriately slowing down. Leave yourself an escape route at all times. Do not get so close to the vehicle in front of you that you cannot escape to another lane or off the highway if necessary. Avoid driving when other drivers are the most fatigued. My father-in-law used to caution me and my wife with the following statement: “Nothing good happens after midnight.” This applies to motor vehicle accidents just like it does other dangerous situations. People in general are programmed to sleep during the night and therefore late-night driving is much more dangerous.

Keep your vehicle in excellent mechanical working order or do not use the interstates. Use your lights, blinkers, horn, flares, triangles, and anything else that will bring attention to your vehicle when you are in any way vulnerable. Preach these things to your loved ones and friends. True – accidents are going to happen.

Financial Impact and Protection

Accidents caused by negligent individuals needlessly burden those who are injured, who must often bear the financial burden of the crash. Trucking companies are only required to carry $750,000 in insurance coverage. Protect yourself and your family by getting your own underinsured or uninsured motor coverage which will be available to you and your passengers should you sustain devastating injuries from the negligence of someone else. Such insurance is relatively inexpensive and easy to purchase. Moreover, everyone should make sure to have an umbrella policy with at least $1 million that includes UM and UIM coverage. If (when) you or a loved one has an accident, you will be thankful you followed this important advice.

Your Personal Injury Lawyers in Virginia

Injured in a crash or have questions on how to keep yourself and your family safe? Contact us today to speak with one of our personal injury attorneys in Roanoke, Lynchburg, Richmond, or Norfolk.

Can I Sue My Car Insurance Company in Virginia? Underinsured Motorist Coverage & Virginia’s Bad Faith Law

Tuesday, September 17th, 2024

You’ve been injured in a Virginia car or truck crash. Let’s say the at-fault driver has the minimum auto insurance coverage under Virginia law, which is currently $30,000 and is set to increase to $50,000 on January 1, 2025.[1] But you have over $110,000 in medical bills. What do you do? Does Virginia law allow you to sue your own car insurance company?

On these facts alone, you cannot sue your own car insurance company. However, under Virginia law, there are two ways you can recover compensation from your own car insurance company: (1) through your auto policy’s uninsured (UM) or underinsured motorist (UIM) coverage, or (2) when your insurance company fails to act in good faith when handling your UM or UIM claim.

I. Uninsured/Underinsured Motorist Coverage

Although you cannot generally sue your own car insurance company (unless they fail to act in good faith as discussed below), your insurance company is on the hook for paying claims where the at-fault driver lacks insurance (this is when UM coverage kicks in) or where the at-fault driver does not have enough insurance (this is when UIM coverage kicks in).

Technically, Virginia law requires every motorist to have auto insurance.[2] So theoretically, you should not have to use your uninsured motorist coverage if the at-fault driver’s vehicle is registered in Virginia. However, according to the Insurance Research Counsel, 1 in 8 drivers in the United States did not have car insurance as of 2019.[3] Therefore, the reality is that many drivers do not have insurance, which is why uninsured motorist coverage remains important.

As Virginia car and truck accident attorneys, we commonly see the situation described in the first paragraph of this article—where the at-fault driver has minimum insurance coverage and the injured person’s damages clearly exceed at-fault driver’s liability limits. In this situation, you can make a claim with your own insurance company under the underinsured motorist portion of your policy. When pursuing an underinsured motorist claim, any lawsuit is still against the at-fault driver, but the judgment can be enforced against the underinsured motorist carrier.[4]

If you have a Virginia car insurance policy, you have underinsured motorist coverage in at least the amount of the minimum limits.[5] You may have more underinsured motorist coverage. You can check the amount of your underinsured motorist coverage by requesting a copy of the “declarations page” of your policy from your insurance agent. Generally, you can download a copy of the declaration page from your insurance company’s website or mobile app.

We frequently have to inform catastrophically injured clients that the total insurance coverage available is less than their medical bills. For this reason, we strongly encourage everyone to purchase as much underinsured motorist coverage as they can comfortably afford. Many carriers offer umbrella policies with UM/UIM coverage, which provides significant protection if you or a household relative are involved in a crash caused by a driver who lacks insurance or does not have enough insurance.

II. Virginia’s Bad Faith Law

There are certain circumstances where you can sue your own car insurance company in Virginia. Let’s say you are T-boned by a driver who ran a red light, and you have $110,000 in hospital bills. The at-fault driver is ticketed for running the red light and prepays his ticket. You hire a personal injury attorney, and your attorney determines that the at-fault driver has $50,000 in liability coverage, and you have $50,000 in UIM coverage. You decide to settle with the at-fault driver for the $50,000 in liability coverage because your lawyer’s investigation reveals that the at-fault driver does not have any significant personal assets.

Your personal injury attorneys then make a settlement demand to your insurance company for the additional $50,000 in UIM coverage. The settlement demand includes the following: documentation of the policy limits settlement with the liability carrier, the crash report, documentation of the driver’s prepayment of the ticket, your medical records, your hospital bills, and photographs of your injuries and the damage to the vehicles involved. The settlement demand gives your insurance company 45 days to respond. Two months go by, and then the UIM carrier sends a letter to your attorney that denies your claim without explanation. Your attorney later takes your case to trial and a jury awards you $215,000.

Under the above circumstances, you likely have a bad faith claim against your car insurance company, meaning you could bring a lawsuit against your own car insurance company. Virginia Code § 8.01-66.1(D)-(F) outlines Virginia’s “bad faith” law when dealing with a UM/UIM carrier. Virginia’s bad faith law applies to any claims for personal injury or wrongful death arising out of a motor vehicle accident that occurs on or after July 1, 2024.

Specifically, Virginia Code § 8.01-66.1(D) requires your car insurance company to act in good faith when handling your UIM claim. In the above example, your car insurance company likely failed to act in good faith by denying the claim without explanation, although your attorney gave them 45 days to respond and provided them with sufficient information and documentation to determine that the other driver was at fault and your damages clearly exceeded the $100,000 in total insurance coverage.

Virginia’s bad faith law allows you to recover the following damages:

1: “[T]he amount due and owing by the insurance company to its insured on the judgment against the tortfeasor;”

2: “[A]n amount up to double the amount of the judgment obtained against the underinsured motorist . . . not to exceed $500,000;”

3: “[R]easonable attorney fees for bringing [the bad faith] claim;”

4: “[A]ll costs and expenses incurred by the insured to secure a judgment against the tortfeasor;” and

5: “[I]nterest from 30 days after the date of such denial or the failure or the date the reasonable settlement demand was submitted in writing.”[6]

Therefore, assuming you can prove that your insurance company failed to act in good faith when handling the claim through either a posttrial motion or a separate lawsuit, your insurance carrier could be responsible for the following damages:

1: $50,000, which represents the UIM coverage that your insurance company owes because your damages exceeded the at-fault motorist’s $50,000 in insurance coverage;

2: $430,000, which represents damages “double the amount of the judgment obtained against the underinsured motorist . . . not to exceed $500,000;”

3: Your attorney’s fees for bringing the bad faith claim;

4: Your costs and expenses incurred to secure the judgment; and

5: Interest from 30 days after the denial, failure to act in good faith, or the submission of the demand.

Due to your insurance company’s failure to act in good faith and failure to pay your valid claim, they have turned your $100,000 case ($50,000 in liability coverage plus $50,000 in UIM coverage) into a case that is likely worth over half a million dollars. For this reason, it is imperative that your Virginia personal injury attorneys are intimately familiar with Virginia’s bad faith law. Your attorney must comply with technical requirements or he or she may give up your ability to sue your insurance company. Specifically, the bad faith law requires your attorney to give the insurance company 45 days’ notice when making a demand and provide them with “information and documentation sufficient for the insurer to assess the liability and damages.”[7]

III. Virginia Car and Truck Accident Attorneys

Our Virginia car and truck accident attorneys are familiar with Virginia’s bad faith law, which can be a powerful tool when negotiating your UM or UIM claim. If you need legal assistance in pursuing an uninsured, underinsured, or bad faith claim, please do not hesitate to contact us.

[1] See Va. Code § 46.2-472.
[2] See Va. Code § 46.2-706.
[3] One in Eight Drivers Uninsured, Insurance Research Council (March 22, 2021), https://www.insurance-research.org/sites/default/files/downloads/UM%20NR%20032221.pdf.
[4] See Va. Code § 38.2-2206(M).
[5] See Va. Code § 38.2-2202(B).
[6] Va. Code § 8.01-66.1(D).
[7] See Va. Code § 8.01-66.1(E)-(F).