Tuesday, August 20th, 2024
Article co-written by Jared Tuck and Summer Associate Peyton Edwards
I. The Dangers of Motorcycle Accidents
Motorcycle crashes rarely have a mild impact. This is especially true in motorcycle collisions that involve tractor-trailers. The average motorcycle weighs between 300 and 500 pounds. Meanwhile, federal regulations generally allow a tractor-trailer to weigh up to 80,000 pounds. That is 160 times heavier than a motorcycle. While motorcycle accidents only make up 1.7 percent of all crashes in Virginia, they are responsible for 13.8 percent of all fatalities. Crashes involving passenger vehicles make up 96.8 percent of all crashes, yet only account for 65.9 percent of fatalities. Unfortunately, if a person is involved in a motorcycle crash, then there is a much higher probability of the crash leading to a wrongful death case. Even in motorcycle crashes that do not result in a fatality, approximately 1 in 3 motorcyclists involved in a crash are seriously injured. For these reasons, motorcycle crashes should not be taken lightly.
Further, the routes you would typically think to be the most treacherous are not where a majority of motorcycle accidents happen. Most often, people think of interstates as being the most dangerous place for motorcyclists to drive. While the large number of tractor-trailers on the interstate can lead to more deadly outcomes, only 11.2% of Virginia motorcycle accidents happen on interstates. Many of those motorcycle collisions occur on Interstate 95 near Alexandria.
II. Motorcycle Safety
Given the serious nature of these types of crashes, safety should be the number one priority of those who are riding motorcycles.
There are several important Virginia motorcycle safety rules that all motorcyclists should be aware of:
- In Virginia, both drivers and passengers riding motorcycles are required to wear a protective helmet as mandated by Virginia Code § 46.2-910;
- Section 46.2-910 also requires motorcyclists to: (1) wear a face shield, (2) wear safety glasses or goggles, or (3) have their motorcycle equipped with safety glass or a windshield during operation;
- Virginia Code § 46.2-909 prohibits motorcyclists from having a passenger, unless the motorcycle is designed to carry the passenger; and
- Section 46.2-909 mandates that individuals riding on motorcycles shall be seated and may only stand on both foot pegs if it is necessary for safety.
III. Determining Fault
Defense attorneys and insurance companies often try to blame motorcyclists for their injuries resulting from a crash. They may argue that: (1) the motorcyclist’s clothing made it difficult to see the motorcyclist, (2) the motorcyclist was speeding, (3) the motorcyclist was not properly licensed, (4) the motorcyclist was not wearing the appropriate protective gear, (5) the motorcyclist was hovering in the blind spot, etc. The gist of these arguments is that the motorcyclist was contributorily negligent. Contributory negligence is a term used to describe the situation where a plaintiff fails to exercise reasonable care for his or her own safety. In Virginia, if the defendant can prove that the plaintiff was contributorily negligent, then the plaintiff cannot recover.
However, just because you did not have a license or were wearing dark colored gear, does not mean that you do not have a case. There is an important requirement for contributory negligence to apply—causation. The alleged negligence must actually cause the crash and/or your injuries. For example, if you were driving without a license, but you were driving the motorcycle in a safe manner, just as a properly licensed driver would, then the fact that you did not have a motorcycle license did not actually cause the crash. You could still possibly recover.
IV. Time Limits on Bringing a Claim
It is important to be vigilant after a motorcycle accident. The statute of limitations in Virginia generally provides that a plaintiff cannot bring a claim after two years from the date of the accident. There are certain circumstances in which the statute of limitations tolls. This means that the two-year clock temporarily stops running. One of the times the statute tolls is when the plaintiff is considered an “infant,” which under Virginia law, is a person who is less than 18 years old. If the plaintiff is an infant, then the statute generally does not begin to run until they have reached age 18. Therefore, an infant involved in a motorcycle crash generally can sue for their injuries up until their 20th birthday. However, after the two-year period has run, the claim can no longer be brought. This means it is imperative for a person injured in a motorcycle accident to retain counsel as quickly as possible. The earlier counsel is retained, the more we can help to preserve important evidence, investigate the accident, and provide legal advice as to the best course of action going forward.
Injured in a motorcycle crash? Our Virginia motorcycle accident attorneys have recovered millions of dollars in settlements and verdicts for clients injured in motorcycle crashes. Contact us today for a free consultation. We pride ourselves on responsiveness. We have a “Go Team” of personal injury lawyers, paralegals, an investigator, and in-house nurses, who are all ready to act immediately to work for you to maximize your potential recovery.
Wednesday, August 14th, 2024
Article co-written by Jared Tuck and Summer Associate Emily Brooks
Whether spending time at Smith Mountain Lake, Claytor Lake, South Holston Lake, Lake Anna, Buggs Island Lake, Lake Gaston, or another one of Virginia’s waterways, summer is the perfect time to enjoy a day on the lake with family and friends. While enjoying time on the water can be fun and relaxing, the increased number of boats on the water during the summer means a greater chance that you or a family member could be injured in a boating accident. In 2023, 3,844 boating incidents were reported, with 564 recorded fatalities.[1] This number does not even begin to compare to the 2,126 reported non-fatal injuries that result from these accidents.[2] As these statistics show, boating accidents are extremely dangerous. It is important you take safety precautions and be prepared if an accident does occur.
Given the tragic and serious nature of boating crashes, safety should be the number one priority when operating a boating vessel. Most boating accidents involve collisions during broad daylight with other vessels or objects in the water. Unlike a motor vehicle or motorcycle accident where individuals are presumably protected by safety equipment such as helmets and seatbelts, there is no safety equipment in place on boating vessels that protect passengers from the immediate impact of a collision.
While alcohol does play a significant role in many boating crashes, the top contributing factors of an accident are operator inattention, improper lookout, and operator inexperience. It’s important to navigate waters at a safe speed, be aware of your surroundings at all times, and keep a lookout for other boats, jet skis, canoes, and partially-submerged objects. Additionally, it is imperative that your boat is stocked with enough lifejackets for every person on board. Where the cause of death was known for the 564 reported fatalities in 2023, 75% of boating accident victims drowned. 87% of these individuals were not wearing a life jacket.[3] While boating can be an extremely fun and family-friendly activity, all individuals involved should be aware of the heightened dangers that come with operating and being on a boat. The more precautions you can take ahead of time will decrease the chance that you will end up in an accident.
To avoid a catastrophic accident and potentially decrease the likelihood of injury, you should ensure everyone on board your boating vessel is aware of and complying with the basic boating laws. These are the basic Virginia boating safety rules you should know about.
(1) Ensure the person driving the boat has met the requirements for boating system education and possesses a valid boating license.[4] This is often achieved by taking a proper boating course and passing a comprehensive boating knowledge test.
(2) Refrain from operating a boat while under the influence of alcohol or other intoxicating substances (Virginia Code § 29.1-738(B)). If an intoxicated boat operator is responsible for causing a crash and the evidence shows that the operator’s conduct was so willful and wanton as to show a conscious disregard for the rights of others, then such circumstances may warrant a finding of punitive damages to punish and deter the boat operator’s egregious conduct.
(3) Make sure the vessel’s lights are properly working between sunset and sunrise. Without proper lights, other boating vessels will have difficulty seeing your boat. Having properly functioning navigation lights helps ensure that your vessel remains sufficiently visible at all times.
(4) In the event an accident occurs, stop and render assistance if you can without putting yourself in harm’s way. Give your information to the other parties involved and report the incident promptly. Virginia law requires the operator of vessels involved in a collision to stop and render assistance to a level possible without serious danger to the operator’s own vessel and passengers.[5]
(5) When towing another person on water skis, a surfboard, or a similar tubing device, ensure you have an individual in addition to the boat operator on board to observe the individuals being towed by the boat.[6]
Injured in a boating crash? Our Virginia boating accident attorneys have recovered millions of dollars for clients injured in boating crashes. Contact us today for a free consultation. Our “Go Team” of personal injury lawyers, paralegals, investigators, and in-house nurses are responsive and ready to act immediately for you to maximize your potential recovery.
[1] Department of Homeland Security, Coast Guard releases 2023 recreational boating statistics, United States Coast Guard News (May 28, 2024) https://www.news.uscg.mil/Press-Releases/Article/3788966/coast-guard-releases-2023-recreational-boating-statistics/.
[2] Id.
[3] 2023 Executive Summary, United States Coast Guard (May 2024) https://www.uscgboating.org/library/accident-statistics/Recreational-Boating-Statistics-2023.pdf.
[4] Va. Code § 29.1-735.29(A).
[5] Va. Code § 29.1-739; Va. Code § 29.1-740.
[6] Va. Code § 29.1-742.
Tuesday, August 6th, 2024
Article co-written by Ryan Starks, David Paxton, and Summer Associate Haley Leipzig
On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) that will enact a “comprehensive ban on non-competes with all workers” as of September 4, 2024.[1] The Rule aims 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 deems “unfair methods of restricting competition.”[2] The full text of the Rule can be accessed here.[3]. If the FTC rule becomes effective, it will supersede and supplant Virginia law that has recognized that reasonably drawn non-compete restrictions are enforceable, with the exception of “low wage” employees.[4]
The implications of the Rule are significant. Indeed, any existing non-compete agreement entered into before September 4, 2024 will no longer be enforceable, and employers will not be permitted to enter into new non-compete clauses with their workers after September 4, 2024.[5] Equally important, once the Rule become effective, employers have a duty to send written notice to each worker who is subject to a non-compete agreement that the provision is not enforceable, and this includes severance agreements. One exception (there are few) is for pre-existing noncompete agreements with senior executives, provided that their annual compensation is more than $151,164. According to the FTC, these senior executives are “less likely to be subject to the kind of acute, ongoing harms currently being suffered by other workers subject to existing non-competes.”[6] For these senior executives, existing non-competes can remain enforceable after the effective date, but companies will be barred from requiring or entering into non-competes with senior executives after September 4, 2024. [7]
Predictably, this proposed ban has caused considerable upheaval in the business community, leading to early legal challenges against the Rule in federal courts in both Texas and Pennsylvania. Among the legal challenges made is the assertion that the FTC does not have the authority to adopt such a nationwide ban, and that the Rule’s attempt to impose this ban is unconstitutional.
In Ryan, LLC v. Federal Trade Commission, Ryan, LLC filed a lawsuit in Texas federal court challenging the FTC’s authority to issue the Rule. Ryan, an international tax firm, and four plaintiff-intervenors, including the U.S. Chamber of Commerce, sought a nationwide preliminary injunction to halt the enforcement of the Rule while the issues are litigated on the merits. The court issued a stay of enforcement until it could rule on the motion for a preliminary injunction, stating that “the FTC lacks substantive rulemaking authority with respect to unfair methods of competition … and thus plaintiffs are likely to succeed on the merits.”[8] However, the court declined to grant a nationwide injunction, limiting the stay to Ryan, LLC and the other plaintiffs named in the case (but not their members). The Texas court stated that it will issue its ruling on the preliminary injunction by August 30, 2024. In its ruling later this month, the Texas federal court is expected to determine whether the FTC ban is enforceable, and whether broader injunctive relief is warranted.
A similar challenge to the FTC’s authority and the enforceability of the Rule was filed by a tree service company in the Eastern District of Pennsylvania.[9] In ATS Tree Services, LLC v Federal Trade Commission, the plaintiff asserted that the FTC ban on non-competes is “unconstitutional and contrary to law”[10] and likewise requested a nationwide injunction that would bar enforcement of the Rule and its ban on non-competes. On July 23, 2024, the court denied plaintiff’s request for an injunction, reasoning that the risk of any harm caused by this ban was too speculative, and that the FTC did, in fact, have the authority to promulgate the Rule.[11]
Because of the contrasting outcomes in these two cases – and these are just the first two cases to render decisions on challenges to the Rule – and the existing patchwork of state laws governing and often limiting the use of noncompete agreements, companies are left without full-proof answers to questions about whether to continue to use of non-compete agreements going forward and what actions to take as of September 4, 2024.
By understanding the implications of the FTC’s Rule and implementing a combination of these strategies, you can better identify the major risks to your business in the absence of an ability to rely on non-competes. During this next month, businesses should consider taking some or all of the following steps to ensure the protection of their trade secrets and other confidential information:
- Non-Disclosure Agreements (“NDAs”): Bind employees with NDAs that clearly protect trade secrets and restricts the disclosure and use of proprietary and confidential information, without making the NDA so broad that it could be considered a non-compete restriction, or that it could construed to prohibit the disclosure of unlawful conduct.
- Non-Solicitation Agreements: Require senior executives and key workers to sign carefully tailored non-solicitation agreements to prevent them from soliciting either the clients they worked with during employment or other company employees for a reasonable period of time after separation from employment.
- Garden Leave: Consider the use of this type of provision in severance agreements with executives and key employees to keep them on the payroll for a restricted period and thereby prevent unwanted competition for a period of time.
- Legal Review: Work with legal counsel to conduct a privileged review of existing agreements to assess potential exposure prior to September 4, 2024.
- Intellectual Property (“IP”) Agreements: Ensure employees have executed Work for Hire Agreements and an agreement to assign any IP they develop to the business and acknowledge the company’s ownership via an IP agreement.
- Tailored Company Policies: Develop company policies and agreements that are specifically tailored to your business needs, avoiding reliance on generic boilerplate language.
- Cloud Services and Data Security: Monitor the Cloud services that employees use to store company data, such as Dropbox, iCloud, or Google Drive. Implement Data Loss Prevention tools that can detect the type of data within files and enforce predefined rules regarding what can and cannot be transferred to a Cloud service.
- Customer Relationship Management Systems: Review the systems used to manage customer relationships and sales. Ensure that access controls and data management settings are tailored to your business needs, specifying who can access what data and for how long.
- Positive Work Environment: Foster a positive work environment that encourages loyalty and reduces the desire for employees to leave and compete. Implementing incentive programs such as profit-sharing, stock options, and bonuses can encourage long-term commitment and reduce turnover.
Absent an unexpected change, it does not appear that a nationwide ban on the FTC’s Rule will be imposed. Each business subject to FTC jurisdiction will need to determine what steps it will take in light of the legal challenges to the FTC’s authority to ban the use of non-compete agreements as well as the exposure to possible enforcement action by the FTC if required notices are not sent by September 4, or banned agreements continue to be required of workers or steps are taken to seek enforcement of a banned agreement.
For legal assistance with navigating these changes and implementing protective measures, reach out to a member of Gentry Locke’s Employment Team who can provide personalized guidance and support to safeguard your business. We can also review any non-compete provisions that your business currently has in place to ensure that they are enforceable under Virginia law.
[1] FTC Non-Compete Clause Rule, 16 C.F.R. § 910 (2024).
[2] Id.
[3] There are limits to FTC’s ban. While the Rule defines non-competes broadly, it does not apply to restrictions that prohibit the solicitation of clients, and the disclosure and use of confidential information/trade secrets. The Rule does not to the following organizations because the FTC has limited jurisdiction: (i) non-profit organizations, (ii) banks, savings and loan institutions, and federal credit unions, and (iii) common carriers, air carriers, and foreign air carriers. Additionally, the Rule, by definition, does not apply to non-competes entered into in connection with a bona fide sale of a business, or to enforcement actions where the cause of action accrued before September 4, 2024.
[4] Assurance Data, Inc. v. Malyevac , 286 Va. 137, 144 (2013); Update Inc, v Samilow, 311 F. Supp.3d 784(ED Va 2018)(granting preliminary injunction on a one-year, 50 mile non-compete agreement). Since July 1, 2020, Virginia has prohibited non-compete agreements with those workers are considered to be “low wage” Va. Code §40.1-27.3.
[5] Id. The Rule makes it clear that it applies to agreements with independent contractors as well as employees, and also applies to severance agreements. In contrast, commentary to the Rule makes it clear that “garden leave” agreements are permissible. Under a garden leave agreement, the worker remains on the payroll for the entire period of the restriction but is required to do little or no actual work.
[6] Id.
[7] 16 C.F.R.§910.2(a)(2). There are also unresolved issues involving the ability to use non-compete provisions and/or forfeiture/claw back provisions in new deferred compensation agreements which are or maybe governed by ERISA.
[8] Ryan LLC v. FTC, Civil Action No. 3:24-CV-00986-E, 2024 U.S. Dist. LEXIS 117418 (N.D. Tex. July 3, 2024).
[9] ATS Tree Services, LLC v. FTC, 2:24-cv-01743, (E.D. Pa. 2024)
[10] Id.
[11] Id.
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Monday, August 5th, 2024
The Court of Appeals of Virginia overturned a $2.03 billion trade-secrets case judgment, the largest jury verdict in Virginia history. In a landmark ruling that defines contours of the Virginia Uniform Trade Secrets Act (“VUTSA”), the Court held that a “series of errors” required reversal. The unanimous decision issued on July 30, 2024, awarded Pegasystems Inc. (“Pega”), a Massachusetts-based software company, a new trial on all VUTSA issues—both liability and damages. Monica T. Monday and Michael J. Finney led the appellate team from Gentry Locke that assisted in securing this result.
The case was brought by Appian Corporation, a competitor in the business process management software industry. After a seven-week trial in Fairfax County Circuit Court, the jury rendered the unprecedented verdict. The Court of Appeals held that this verdict could not stand. It found that the trial court improperly instructed the jury that Appian’s only causation burden was to show Pega’s total sales over an eight-year period. That flawed instruction, according to the Court, “relieved Appian of its proper burden to prove causation between the alleged misappropriation and any damages.” And that error was compounded when the trial court prevented Pega from presenting evidence that many of its total sales were in areas in which the parties did not compete.
In addition to these prejudicial errors concerning causation and damages, the Court also found that Pega should have been permitted to demonstrate its software to the jury and to introduce the number of people with access to Appian’s platform. These were critical facts to liability issues—namely Pega’s defenses that it did not copy Appian’s software and that Appian did not take reasonable measures to protect its alleged trade secrets. These multiple errors deprived Pega of a fair trial.
Monday and Finney served as embedded appellate counsel for Pega at trial, assisting the trial team from Choate Hall and Offit Kurman with evidentiary issues, preservation-of-error, jury instructions, critical legal issues, and post-trial motions. On appeal before the Court of Appeals of Virginia, Gentry Locke worked alongside an outstanding appellate team from Orrick, including Josh Rosenkranz, Eric Shumsky, and Chris Cariello. Gentry Locke’s appellate team also included partners David R. Berry and Noah P. Sullivan.
The case is Pegasystems Inc. v. Appian Corporation, Record No. 1399-22-4 (Va. Ct. App., July 30, 2024).
Monday, August 5th, 2024
If you’ve been in a car accident and you have no visible injuries, you may still be at serious risk of the most insidious injury without knowing it until it’s too late – a traumatic brain injury.
TBIs Are Not Always Obvious
Traumatic brain injuries, often referred to as TBIs, can sometimes be immediate. However, they are oftentimes delayed for hours, days, or longer, making them hard to recognize or attribute to any particular occurrence. People tend to assume for a brain injury to occur, you have to hit your head in some way. This is not always the case.
Unlike an open head injury when an object gets lodged into your brain or your skull gets fractured, a TBI is a closed head injury when the brain hits the inside of your skull with such force that it becomes damaged. The brain can become bruised or bleed, or the nerve fibers of your brain can tear. In turn, the brain swells and blood flow to that area can get dangerously reduced.
Just like TBIs, automobile collisions occur in a variety of ways – different speeds, different points of contact, and differently-sized vehicles. Under the right set of circumstances, the sheer force of an accident can cause a person’s brain to shift with such force that the impact of the brain coming into contact with the skull is enough trauma to cause a TBI.
Traumatic brain injuries can present in many ways, ranging from a slight headache and fatigue, to loss of consciousness and dizziness. The range of signs and symptoms someone exhibits depends on the severity and location of the injury; plus, every victim is unique. Depending on the extent of the injury, you may require immediate attention, short-term care, or even long-term care. However, it is very important to seek medical attention following any car crash so that any potential brain injuries can be identified and treated early on.
TBIs from Car Crashes are More Common than You Might Think
According to the Virginia Department of Health, about 33% of all injury-related deaths are a result of TBIs in Virginia.[1] Between 2010 and 2014, car accidents are the second leading cause of TBI-related deaths and the second leading cause of TBI-related hospitalizations, only surpassed by falls. This demonstrates how common TBIs are after a car wreck and, more importantly, why it’s imperative that you seek medical attention right away if you’ve been the victim of a car crash with any involvement of your head, neck, or skull.
For additional recommendations for what to do after a car crash, see What to Do – During and After – an Auto Accident in Virginia.
What Gentry Locke Can Do for Car Crash Victims Suffering with a TBI
Our team of personal injury attorneys has demonstrated excellent care and service to those who have suffered a traumatic brain injury and other types of injuries resulting from someone else’s negligence.
First, if called early enough, our team can try arriving on the scene to document everything related to the car crash. As mentioned above, many factors go into the nature and extent of a possible TBI. By documenting everything, Gentry Locke can potentially help determine what exactly happened to cause an injury to the brain and hopefully relate it back to the driver at fault.
Next, we will work with you throughout your care to bring justice. No matter if criminal charges were brought or if a ticket was issued, there is still potential liability imposed on the other driver. Medical care and treatment are expensive, and you should not have to worry about spending your life savings should you require extensive treatment and/or long-term care. Gentry Locke’s personal injury attorneys will work to ensure you receive fair and just compensation for medical expenses, pain and suffering, and other related costs.
In sum, if you have been in a car wreck and you do not immediately exhibit signs and symptoms of a brain injury, that does not necessarily mean you do not have one. Getting properly evaluated by a medical professional as soon as possible is best practice. However, not everyone has the time, convenience, or knowledge to get immediately checked out. That is OK. If you begin showing signs and symptoms of a brain injury following a car crash at any point, it’s still recommended to visit a healthcare professional to get checked out.
Whether you require short-term or long-term treatment, your biggest worry should not be how to foot the bill. Let us worry about getting you fair and just compensation while you recover.
For more information on traumatic brain injuries, non-traumatic brain injuries, and what Gentry Locke’s team of Virginia personal injury attorneys can do to assist if you or a loved one have been the victim of a car crash, please visit: Traumatic Brain Injury Attorneys.
[1] TBI_DataBrief_-January2017.pdf (virginia.gov)
Monday, July 22nd, 2024
The term “artificial intelligence” is no longer confined to the pages of science fiction or the runtime of Blade Runner. But don’t let that fool you. AI has been a part of our lives longer than you may realize. From email automations to voice command search tools like Alexa or Siri, AI has become a prevalent and useful facet of technology. Over the past five years however, the emergence of generative AI models like ChatGPT, Midjourney, and DALLE has begged new ethical and legal questions, and the intellectual property considerations of both AI programs and their outputs are reaching a boiling point.
Copyright claims related to AI are complex, and the law has not yet caught up to these advancements. Attorneys, legislators, and scholars alike are already contemplating the privacy, intellectual property, free speech, equal employment, and national security implications of artificial intelligence. Among these considerations, copyright law has been a major point of contention.
What is Generative AI?
Generally speaking, artificial intelligence is software, firmware, and/or hardware that is trained to solve complex problems or complete tasks that require the instrument to mimic human thought or action. Make no mistake, AI cannot think, nor is it sentient. The philosophical implications of this premise are encapsulated in the currently unrealized idea of Artificial General Intelligence (AGI), but no truly intelligent autonomy exists in today’s models.
In practice, AI cannot operate independently or of its own mind (it doesn’t have one). It is not a stochastic process. AI cannot operate randomly because it is bound to the instructions, guardrails, and training parameters of its developer. Further, “artificial intelligence” is a term used to encapsulate a vast blanket of probabilistic models ranging from robotics to voice assistant products (Siri and Alexa), website helpdesk chatbots, and reactive machine learning models. Here, we’ll focus on machine learning models like Midjourney, ChatGPT, GPT-4 (OpenAI), DALLE-2 (OpenAI), and Bard (Google).
There are two primary categories of commonly used, public-facing “Generative AI.” First, there are large language models (LLMs). These models, like Bard or ChatGPT, are supervised or semi-supervised chatbots that generate predictive, textual responses to prompts from a user. The second category includes large visual/vision models (LVMs), which operate similarly to LLMs but train on and generate image outputs instead (see Midjourney and DALLE-2). These models are trained on vast data sets and use prompts to generate responses through predictions based on past data ingestion. Many are semi-supervised, meaning the AI is initially tuned on a pre-defined data set but then continues to train itself based on user prompts and reactions to develop more accurate generation.
Functionally, the user-facing process looks like this: a user inputs prompt [X value] and the model generates [Y output] based on analytic weight and similarity of the prompt to previously ingested data. Here is an example from ChatGPT:
User Prompt: Explain briefly how generative, machine-learning, text-based AI models work as though you were explaining it to a fifth grader.
ChatGPT 3.5: Sure! Imagine a computer that loves to read books. It reads so many books and learns how words and sentences work. Then, when you ask it a question, it uses what it learned to create new sentences and give you an answer. It’s like having a really smart friend who learns from books and can talk to you!
The Legal Landscape of Copyright & AI
Copyright applies to artificial intelligence in two categories: ingestion and output. Ingestion refers to the process of tuning, where the developer uses pre-defined data sets to train the AI so that the model can accurately react to prompts and generate outcomes based on similarities to its training data. Outputs refer to the actual generations of the model. In LLMs, this would be the text-based response to a user prompt. For LVMs, it is the image(s) generated. Copyright protects original works of authorship from unauthorized reproduction or display by those who are not the copyright owner.[1] These rights vest in the author the moment the work is created, though a copyright owner obtains valuable additional protections by filing a registration with the U.S. Copyright Office. To best examine the application of copyright law to AI generally, the legal landscape can be viewed in light of three parties with potential copyright interests in AI-related works.
Parties With Potential Copyright Interests
AI Developers
AI developers may have several copyright interests related to their models. First and perhaps most settled, developers may have copyright in the software of the AI model itself. While it is established that developers can obtain copyright protection over computer code, copyright’s merger and useful article doctrines complicate matters when it comes to protecting utilitarian works like software. However, licensing plays a role as well, and a developer’s ability to claim copyright over his model can be frustrated if he used an open-source software as the base for the program. Open-source code is a software package offered freely to the public under a general use license by its developer to incentivize innovation. While these licenses allow for use, it does not immediately mean the developer has relinquished his copyright. In fact, the opposite is true. The existence of a license implies the assertion of an otherwise protected right, though many open-source licenses dictate that platforms developed using the open-source code are the exclusive IP of the platform’s developer. While enforcement is unlikely unless the developer uses open-source software in an unethical manner, AI developers should be wary of their rights to the AI models they develop.
Further, AI developers have already attempted to claim copyright over the outputs generated by their AI models. In 2023, Stephen Thaler attempted to register an image (titled “A Recent Entrance to Paradise”). The image was created using Thaler’s “Creativity Machine,” a generative AI model, and the Copyright Office refused to register the image. In Thaler v. Perlmutter, the U.S. District Court for the District of Columbia agreed with the U.S.C.O., explaining that copyright authors must be human.[2] The case is currently pending before the U.S. Court of Appeals for the D.C. Circuit.[3] Some have taken this to mean that AI-generated works are not the product of human authorship. This is not the case. The decision noted that Thaler, in his copyright application, listed the AI as the author and himself as the owner of the copyright through the work-for-hire doctrine. Thaler claimed that, because he was the creator of the AI and prompt, he was essentially the AI’s “employer” and entitled to works that he argued should otherwise belong to the model itself As such, copyright in AI-generated outputs remains an unsettled issue. Nonetheless, in cases where the developer is not the prompter, the developer likely does not exert sufficient control over the creative process to claim the work as his own.
Authors With Pre-Existing Works
The second interested party consists of authors of pre-existing works that are used to train the AI models. This raises an issue as to whether a developer’s training of an AI on data sets (which often include millions of unfiltered data points) constitutes an unauthorized reproduction of copyrighted works contained therein. Since 2022, nationwide copyright litigation has erupted, with various authors suing AI developers for copyright infringement during the model training process.[4] Late in 2023, a federal court in the Southern District of New York became the battleground for a set of juggernaut AI-copyright cases. Filed on December 27, 2023, The New York Times Co. v. Microsoft Corp., et al. embodies the essence of the conflict and raises allegations that generative AI models facilitate mass copyright infringement– in that case, the mass reproduction of the Times’ journalism, among other data, in training OpenAI’s GPT models.[5] Daily News, LP, et al. v. Microsoft Corp., et al., filed in April 2024 in the same New York district court, is nearly identical.[6] In June 2024, Microsoft and the other OpenAI defendants filed a motion to consolidate both cases into a single, eighteen party dispute. Both cases ask more questions than are likely to be answered. However, deciding whether the use of copyrighted works to train AI models constitutes infringement, fair use, or warrants some compulsory license structure is the threshold for applying copyright law to increasingly autonomous technologies.
That is not to say that AI developers are doomed. Many argue that training AI models constitutes a fair use of copyrighted works, in part because the use is not one that usurps the copyright owner’s intended market. Whether or not AI training falls under copyright’s fair use protections will depend on how courts square the scope of “transformative” uses in relation to two Supreme Court decisions in Google LLC v. Oracle Am., Inc. (2021) and Andy Warhol Found. for the Visual Arts v. Goldsmith (2023).[7] In Google, the use of Oracle’s API software packages by Google to develop the Android platform was considered a transformative use, but, in Warhol, the use of Goldsmith’s photograph of Prince was not. Both involve the direct copying of substantive elements of the underlying work, but they reach different results. One major distinction concerns how much weight should be given to “commercial uses” in deciding the boundary between infringement and fair use.
Prompt Engineers
The third and final category of interested parties is the prompt engineer or prompter. These are the people who use generative AI services like ChatGPT and Midjourney to create writings or images. The precise question here is one that the court avoided in Thaler: is a prompter the author of a work generated by AI? This question remains unanswered, and the Copyright Office has, perhaps too hastily, begun to answer the question. In February 2023, the U.S.C.O. refused to register the individual images in the graphic novel, Zarya of the Dawn, because the images were created by AI.[8] It did, however, allow for the compilation of the images as a graphic novel to be protected as its own work. Nonetheless, the Copyright Office seemed to recognize that this blanket refusal was problematic and issued a request for commentary on the subject in August 2023. The Copyright Committee of the American Intellectual Property Law Association (AIPLA) drafted commentary addressing the application of copyright law to AI in October 2023.[9] In the commentary, the AIPLA addressed the importance of flexibility in determining what constitutes a “human creation” for the purposes of copyright authorship. A blanket rejection may raise questions about findings of authorship in other mediums that attenuate the creator’s control over a work’s moment of fixation (i.e., certain forms of photography use automatic exposures and slow shutter speeds to allow many random movements to be captured in a single frame, leaving the photographer with limited control over her subject). As of this post, the question of authorship in AI outputs remains unanswered, but affording some level of copyright protection to prompters for their generations could further the economic and creation incentives that form copyright law’s constitutional purpose.
However, prompters should be wary of the outputs they generate because the ability for an output to infringe an existing work is present. For example, if I ask Midjourney to create an image of “an old man standing on top of the Empire State Building dressed as Spider-Man,” the use of the Spiderman design may constitute an infringement of Marvel, Sony, or Disney’s copyright, not only in the suit design but the character itself. The use of AI does not diminish the rights of existing copyright owners, and prompt engineers should take care to ensure they are not infringing the works of others.
Ultimately, the advent of generative AI has raised many concerns regarding intellectual property. Whether copyright protection exists for generative AI outputs and whether the ingestion process constitutes fair use or infringement per se are vital questions, the answers to which will become the sine qua non of the relationship between IP and AI. The landscape is evolving, and the need for developers, prompters, and existing authors to seek legal advice will only become more pressing as litigation escalates. Yet, it seems inevitable that some form of copyright protection, however thin, will find itself married to works created with the assistance of AI. From copyright concerns to questions regarding data privacy and informational security, consulting with an intellectual property attorney regarding the use, integration, or development of generative AI models is more important than ever.
[1] See 17 U.S.C. §§102, 106.
[2] See Thaler v. Perlmutter, 2023 U.S. Dist. LEXIS 145823 (D.D.C. 2023).
[3] See Thaler v. Perlmutter, No. 0:2023cv05233 (D.C. Cir.) (filed Oct. 18, 2023).
[4] 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).
[5] See The New York Times Co. v. Microsoft Corp., et al., 1:23-cv-11195-SHS (S.D.N.Y. filed Dec. 27, 2023).
[6] See Daily News, LP, et al. v. Microsoft Corp., et al., 1:24-cv-03285-SHS (S.D.N.Y. filed April 30, 2024).
[7] Compare Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) with Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
[8] See Zarya of the Dawn (Registration # VAu001480196), U.S. Copyright Off. (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
[9] Jake Bryant, the author of this article, was a member of the AIPLA’s Generative AI taskforce that drafted the commentary.
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Friday, July 12th, 2024
Article co-written by Andrew Gay, Jake Bryant, and Summer Associate Carter Leverette
Today, social media is a powerful tool for marketing. Influencers, entrepreneurs, and businesses use social media platforms to promote ideas, products, and services in a way that attracts consumers on a personal level. Anyone with a phone or computer can create content that is instantly pushed out to millions of viewers. Consider this example:
Bob Buyer hires Chris Carpenter to build a set of custom bookshelves for his den. Chris does not disappoint and delivers and installs a flawless set of custom bookshelves. Chris knows that client referrals are a big deal. Chris takes a video on his phone of the finished product. Bob is standing in the doorway as Chris pans the video from one side of the room to the other and is now part of the footage. Chris also takes a picture of Bob in front of the bookshelves. Chris posts the video and the picture on his social media platforms and his website.
The caption for the video reads: “Walk-through video of custom bookshelves in client’s den.”
The caption for the photo reads: “Here is Bob with his custom bookshelves. Another satisfied customer.”
Nothing wrong with that, right? Perhaps not, if Chris has the right to use Bob’s image for commercial reasons. Did you know that Virginia provides a cause of action for an individual whose “name, portrait, or picture” is used “for advertising purposes or for the purposes of trade” if the publisher has not “first obtained the written consent of such person?”[1] If your reading this and know that you’ve done something similar to Chris Carpenter, then you’re going to want to continue reading.
What does it mean to use someone’s name or likeness for an advertising purpose?
When a person’s name or likeness appears in a publication (e.g., a social media post, newspaper ad, or brochure) and “taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service,” then it is being used for an advertising purpose.[2] This means that when you create content that includes another’s name or likeness when trying to promote goods or services to prospective clients, you are potentially using that person’s name or likeness for advertising purposes.
What does it mean to use someone’s name or likeness for the purpose of trade?
Similar to advertising, “[i]n determining whether the use was ‘for the purposes of trade,’ courts are to consider whether the name was used to draw trade to an entity.”[3] This means that if you are including someone’s name or likeness in your content for the purpose of attracting others into a business relationship with you, then you are using that person’s name or likeness for the purpose of trade.
At this point, you are probably wondering, does this mean that everyone who appears in any of my promotional content needs to give me their written consent? Even the guy just walking around on the street in the background? Fortunately, it does not. There is one main exception to this law that content-creating business owners need to be aware of to determine whether they need to gain the written consent of an individual whose name or likeness appears in their content. This exception is known as the “Incidental Use Exception.”[4]
What is the Incidental Use Exception?
This exception evaluates (1) “the main purpose and subject” of the content and (2) whether there is a “direct and substantial connection between the appearance of the [individual’s] name or likeness” and the content’s purpose.[5] The content will be viewed in its entirety. If the inclusion of another’s name or likeness is “sufficiently isolated, fleeting, or insignificant, the publishing party will not be liable.”[6] On the other hand, if the content references to or identifies the individual, making them the main subject of the work, or the content’s main purpose requires including that person’s name or likeness, then written consent is required to avoid liability. [7] For these reasons, it is hard to imagine a scenario where including an individual’s name in your promotional content will not require that person’s written consent. Still, there will be many scenarios where the appearance of a person’s likeness in your content will be merely incidental.
Here are some hypotheticals to assist in illustrating what is likely permissible and then what is likely impermissible. However, the best option is to ensure that your business is protected, which is why the best practice is to have consent for advertising purposes agreements with your customers, clients, students, employees, residents, subcontractors, and the list could go on.
Likely incidental use scenarios:
- An author takes out an advertisement in the local newspaper about an autobiography that he has recently written. The autobiography contains many photos from the author’s past. The advertisement includes six of these different photos. One of the photos depicts the author and several of his college buddies and is labeled “Doe and his college buddies.” The advertisement does not mention any of the other individuals in the picture by name, and the main purpose of the advertisement is to share about the author’s autobiography. The use of the other individual’s images is incidental to the advertisement as a whole because such use is not related to the advertisement’s purpose, the autobiography.[8]
- A community college creates an online advertisement promoting the school’s educational programs and extra-curricular opportunities. The advertisement is lengthy and details what the college has to offer. The college’s advertising department selects photographs of students and faculty engaged in their studies and activities around the campus for the purpose of filing up space on the advertisement. No where in the advertisement are the individual’s names listed, and the advertisement does not specifically reference to any of the individuals pictured. The individuals pictures are incidental to the main purpose of the advertisement, which is to provide information about the college’s programs to prospective students.[9]
- A drone flies over a job site, taking a video of the constructing of a new subdivision. In the video, there happens to be the faces of the construction workers who are building the homes. The developer posted the video to his website and social media pages captioned “look at the awesome homes that my company is building.” This video is an advertisement because it is used to promote the homes the developer is building with the goal of attracting future homeowners. The main purpose of the video is to promote the new homes, and the main subject of the video is the under construction homes themselves. The workers’ faces do not have a direct and substantial connection to the purpose of the video and are not the main subjects of the video. Therefore, the appearance of the workers’ likenesses is likely incidental.
- Bob’s standing in the doorway during Chris Carpenter’s video walkthrough of the den.
Likely not incidental use scenarios:
- Like Chris Carpenter’s photograph of Bob Buyer, a builder takes a picture of one of his clients and his family in front of the new home that the builder just built for his client and posts it on social media, captioning it “Mr. Client and his family love their new home.” The post is for advertising purposes because the builder hopes to attract future business by showing that his clients are happy with the homes he builds them. The main purpose of this advertisement is to show that the builder makes his clients happy, and the main subject of this advertisement is Mr. Client and his family. Here, there is a direct and substantial connection between the appearance of Mr. Client and his family and the purpose of the advertisement. Written consent is required before posting.
- A bar plans to host a DJ party one weekend. The social media manager for the bar goes online and finds images of attractive women at DJ parties at other clubs and then post the images to the bar’s social media accounts, captioning the post “Saturday night DJ Cut & Paste and the most beautiful women in the city will be at our bar.” The ad directly references the individuals whose likenesses are displayed and does so in a way that makes it appear those individuals are affiliated with the bar and will be at the event. The main purpose of the advertisement is no longer to inform the public about a particular event or DJ but is instead to increase traffic by convincing people that the most attractive women in the city will be at the bar. The main subjects of the post are the women pictured. The use of the women’s likeness is directly and substantially connected to the main purpose of the advertising. Written consent is required before posting. [10]
Marketing is an important part of a business and its ability to attract and generate work or sales. Don’t let your marketing efforts create a liability for the company. Contact us today for assistance with image rights and releases.
[1] VA. Code § 8.01-40 (2024) (it is worth noting that Virginia courts also look to New York courts for guidance when interpreting this provision, because New York has a similar provision and more developed law). This provision establishes what is generally called a right of publicity, one need not have celebrity status to receive such a right in Virginia. This provision is not to be confused with VA Code § 23.1-408.1, which came into effect on July 1, 2024 and provides unique name, image, and likeness compensation regulations for intercollegiate athletics.
[2] Town & Country Props. v. Riggins, 249 Va. 387, 394–95 (1995) (quoting Beverley v Choices Women’s Medical Center, Inc., 587 N.E.2d 275, 278 (N.Y. 1991); see also Wiest v. E-Fense, Inc., 356 F.Supp.2d 604, 610–11 (E.D. Va. 2005).
[3] Goodweather v. Parekh, 2020 U.S. Dist. LEXIS 253268, 28 (E.D. Va. 2020).
[4] Williams v. Newsweek, Inc., 63 F.Supp.2d 734, 737 (E.D. Va. 1999). There is another big exception to this law, the “Newsworthiness Exception.” However, this exception focuses on if the name or likeness is published from a news source, and is part of a publication on a matter of public concern. Therefore, this exception will generally not be relevant to a content-creating business owners.
[5] Id.; see also Lohan v. Perez, 924 F.Supp.2d 447, 455 (E.D.N.Y. 2013) (citing Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116, 119 (S.D.N.Y. 1991)) (“Whether a use falls within [the incidental use] exception to liability is determined by the role that the use of the plaintiff’s name or likeness plays in the main purpose and subject of the work at issue.”).
[6] Geiger v. Abarca Family Inc., 2022 U.S. Dist. Lexis 167087, 8 (E.D. Va. 2022).
[7] See Williams, 63 F.Supp.2d at 737; see also D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154, 157 (E.D.N.Y. 1997).
[8] This hypothetical is based off of Williams, 63 F.Supp.2d 734.
[9] This hypothetical is based off of D’Andrea, 972 F. Supp. 154.
[10] This hypothetical is based off of Geiger, 2022 U.S. Dist. LEXIS 167087.
Thursday, July 11th, 2024
In recent years, the Supreme Court has taken a keen interest in harmonizing intellectual property and the free speech protections of the First Amendment.[1] In 2023, the Court held that artist Andy Warhol’s unauthorized use of a photograph of Prince to create a silk screen portrait of the artist was not a protected fair use under the Copyright Act.[2] In the copyright context, fair use carves out a line of demarcation between an author’s right to monopolize his creative expressions and free speech by allowing others to engage in non-infringing uses like critiques, commentary, new reporting, teaching, and research.[3] Fair use also exists in trademark law, albeit in a narrower context. Trademark law protects words, phrases, symbols, and even smells that are used in commerce to distinguish one source of goods from others in relevant markets. Shortly after its Warhol decision, the Court ruled that VIP Products’ dog toy, fashioned as a parody of the Jack Daniel’s brand, was not a fair use of Jack Daniel’s’ trademarks because the parody still functioned to identify VIP Products as the source of the toy – meaning the parody was used as a trademark.[4] In 2017 and 2019, the Supreme Court held that certain clauses in the Lanham Act, which denied trademark protection to disparaging, scandalous, or immoral marks, violated the First Amendment’s prohibitions against viewpoint discrimination.[5] On June 13, 2024, the Supreme Court addressed a new free speech challenge to intellectual property law: whether Section 2(c), of the Lanham Act, often called the names clause, amounts to viewpoint discrimination under the First Amendment. The Court’s answer? A resounding no.
In 2018, Steve Elster filed an application to register the phrase “TRUMP TOO SMALL” (the “Mark”) as trademark with the United States Patent & Trademark Office.[6] The phrase draws on an “exchange between [former U.S. President] Donald Trump and Senator Marco Rubio during a 2016 Presidential primary debate.”[7] Both the trademark examiner and Trademark Trial and Appeal Board refused to register the mark on the grounds that it violated Section 2(c) of the Lanham Act, which prohibits the registration of a real person’s name as a trademark without that person’s written consent.[8] Elster appealed, claiming that Section 2(c) verges on viewpoint discrimination because “it is easier to obtain consent for a trademark that flatters a person rather than mocks him.”[9] The Supreme Court, for various reasons, unanimously disagreed.
In the principal opinion, Justice Thomas, explained that Section 2(c) is viewpoint-neutral but not content neutral, a point that distinguishes this case from the Court’s earlier decisions in Matal v. Tam and Iancu v. Brunetti– where the Court struck down clauses in Section 2(a) as unconstitutional viewpoint discrimination. Thomas addressed the statute’s viewpoint neutrality, noting that Section 2(c) “is thus not singling out a trademark ‘based on the specific motivating ideology or the opinion or perspective of the speaker.’”[10] The constitutionality of viewpoint-neutral, content-based trademark registrations proved to be an issue of first impression for the Court. Refusal of a trademark registration under Section 2(c) turns distinctly on whether the proposed mark contains a person’s name. Such a restriction is content-based because “the law applies to particular speech because of the topic discussed or the idea or message expressed.”[11] It was in evaluating viewpoint neutral but content-based speech restrictions that the Justices diverged. Justice Thomas relied heavily on Section 2(c)’s “deep roots in our legal tradition,” using historical precedent to explain that people have long been entitled to use their own names in commerce.[12] The other justices were less wed to the historical justification. Justice Barrett, mostly joined by Kagan, Jackson, and Sotomayor, questioned “why hunting for historical forebears on a restriction-by-restriction basis” is the optimal solution.[13] Justice Sotomayor, joined by Jackson and Kagan, criticized the majority’s “hunting far into a dimmy past” and suggested that, when the restriction is viewpoint-neutral, it need only reasonably fit the purposes of trademark law to be constitutional.[14] Regardless of each justice’s approach, the Court ultimately decided that refusing to allow trademark registrations for personal names by third parties without consent it is a constitutionally protected restriction on speech.
Beyond the Court’s various constitutional analyses, there are attractive economic reasons for maintaining Section 2(c)’s place within trademark law’s architecture. Trademark protection serves two vital, intertwined functions: (1) protecting consumers by reducing search costs and deterring counterfeits and (2) preventing freeriding and unfair competition by competitors. Section 2(c) furthers both objectives. Allowing the unfettered, unauthorized use of a personal name as a trademark by someone other than the named individual would significantly increase the risk that consumers draw a false affiliation between the mark holder and person named. Further, such a policy would allow third parties to use the names of competitors with strong reputations in the market to freeride on the name’s goodwill, discouraging investment in the kind of quality advertising that reduces consumer search costs in the first place. Despite the nature of the mark in contention, this case falls far outside the norm of the political sphere. Instead, the ruling here contributes some clarity to the often-abstruse bounds of intellectual property. Though a day may come when history alone cannot answer free speech-related trademark questions, the Court’s ruling in Vidal v. Elster implicitly heartens the economic justifications that form the bedrock of trademark law.
[1] See Matal v. Tam, 582 U.S. 218 (2017) (holding that the USPTO could not deny trademark protection on the grounds that a mark was disparaging); Iancu v. Brunetti, 588 U.S. 388 (2019) (holding that the USPTO could not deny trademark protection on the grounds that a mark was immoral or scandalous); Google, Inc. v. Oracle Am., Inc., 593 U.S. 1 (2021) (holding that Oracle’s use of Google’s declaring code to create a transformative, new platform was a fair use of Google’s copyright); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 550–51 (2023) (holding that Andy Warhol’s use of a copyrighted photo to create a silk-screen portrait was not a fair use due to the commercial nature of the use); Jack Daniel’s Props. v. VIP Prods. LLC, 599 U.S. 140 (2023) (holding that VIP Products’ “Bad Spaniels, Old No. 2, Tennessee Carpet” parody dog toy was not a fair use of Jack Daniel’s trademarks and trade dress); Vidal v. Elster, 2024 U.S. LEXIS 2605 (2024) (holding that Elster was not entitled to trademark protection for the “Trump Too Small” mark without Donald Trump’s consent).
[2] See Goldsmith, 598 U.S., at 550–51.
[3] See 17 U.S.C. §107; Harper & Rowe, Publrs. v. Nation Enters., 471 U.S. 539, 560 (1985); Eldred v. Ashcroft, 537 U.S. 186, 197 (2003).
[4] See Jack Daniel’s Props., 599 U.S. 140.
[5] See Tam, 582 U.S. 218; Brunetti, 588 U.S. 388.
[6] See In re Elster, 2020 TTAB LEXIS 373 (T.T.A.B. 2020).
[7] Vidal v. Elster, 2024 U.S. LEXIS 2605, at 10.
[8] In Re Elster, 2020 TTAB LEXIS 373; 15 U.S.C. § 1052(c).
[9] Vidal v. Elster, 2024 U.S. LEXIS 2605, at 13.
[10] Id.
[11] Id. at 14 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
[12] Id. at 23–24.
[13] Id. at 37 (Barret J., concurring).
[14] Id. at 60–61 (Sotomayor J., concurring) (quotations omitted).
Monday, July 1st, 2024
Article co-written by Matthew Broughton, Jared Tuck, and Summer Associate Emily Brooks
Virginia law has seen several recent changes regarding auto insurance, and this trend is continuing. Since July 1, 2023, three major changes have been enacted, with two taking effect in the near future. Here’s what you should know about these recent changes to the law and what impact these changes will have on personal injury cases arising from Virginia motor vehicle accidents.
Underinsured motorist coverage (UIM) and uninsured motorist coverage (UM) both act as a safety mechanism if you or your family are involved in a motor vehicle collision with an individual who either: (1) does not have enough insurance to cover the costs of your damages, or (2) does not have any insurance. In these situations, the amount of underinsured and uninsured motorist coverage you have will significantly impact the amount of money you can recover for your injuries.
As of July 1, 2023, the amount of damages an individual may recover from his/her own UIM is no longer reduced by the underinsured motorist’s liability coverage amount. Instead, the injured motorist can now obtain and benefit from the full amount of his/her underinsured motorist policy.[1] For example, let’s say Robert has $100,000 in underinsured motorist coverage, and he is injured by a motorist who has $50,000 in liability insurance coverage. Let’s assume that Robert’s total damages from the accident amount to $150,000. Before July 1, 2023, Robert was only able to collect $50,000 from his UIM, despite having a $100,000 policy. This is because the $50,000 liability insurance coverage of the motorist who caused the accident would be deducted from the total amount of underinsured motorist damages Robert could receive from his policy. After the July 1, 2023 change, Robert can collect the entire $100,000 from his UIM, receiving the full benefit of his policy. In other words, you are now able to enjoy the full benefits of your underinsured motorist policy.
The July 1, 2023 change allows a motorist to elect in writing to reduce his/her UIM coverage by the liability limits.[2] DO NOT LET AN INSURANCE AGENT TALK YOU INTO ELECTING TO REDUCE YOUR UIM LIMITS!
Effective July 1, 2024, a second major change to auto liability insurance under Virginia law has finally become a reality. This change requires every person applying for registration of a motor vehicle to have insurance on his/her vehicle.[3] Any owner who refuses or neglects to submit proof of automobile liability insurance coverage within 30 days of request by the Commissioner or duly authorized agent, will have his/her driver’s license, registration certificates, and license plates suspended until the owner of the motor vehicle has both: (1) furnished proof of the required liability insurance coverage, and (2) paid a $600 noncompliance fee.[4]
This requirement is a substantial change from the previous options available for motorists. Historically, motorists could register an uninsured motor vehicle by paying an annual $500 fee to the Department of Motor Vehicles in lieu of maintaining automobile liability insurance on the vehicle. As of July 1, 2024, this is no longer an option, and all motorists will be required to obtain the minimum levels of bodily injury liability insurance required under Virginia Code § 46.2-472.[5] Currently, this amount sits at $30,000 per bodily injury or death to one person in any one accident, and $60,000 for bodily injury or death to two or more persons in any one accident.[6] However, this amount will be increasing on January 1, 2025.
Beginning on January 1, 2025, Virginia law will require all auto policies effective on or after that date to have a minimum liability limit of $50,000 per bodily injury or death to one person in any one accident and a minimum limit of $100,000 in UIM for bodily injury or death to two or more persons in any one accident.[7] This change will also increase the amount of uninsured and underinsured motorist coverage because Virginia law requires the UM/UIM limits to be at least equal to the minimum liability limit.[8] In other words, the minimum UM/UIM limit will also increase to $50,000 per person and $100,000 per accident.
IV. How These Changes Impact Virginia Personal Injury Cases
Ultimately, the new changes in Virginia auto insurance law will significantly increase the amount potentially recoverable for a plaintiff injured in a motor vehicle accident where there is limited insurance coverage.
Before the July 1, 2024 change mandating auto insurance, the worst-case scenario for a plaintiff injured in a crash was that both motorists were uninsured and had elected to pay the $500 uninsured motorist fee. In this scenario, there would not be any insurance coverage for the plaintiff to collect, and the plaintiff would be limited to pursuing the defendant’s personal assets.
With the July 1, 2023 change eliminating the liability credit, the July 1, 2024 change mandating auto insurance, and the January 1, 2025 change increasing the minimum limits to $50,000, almost every Virginia personal injury case arising out of a motor vehicle collision will involve at least $100,000 in insurance coverage.
This is because the defendant will be required to have $50,000 in liability coverage pursuant to Virginia Code § 46.2-472(B)(3), and the plaintiff will be required to have $50,000 in UIM pursuant to Virginia Code § 38.2-2202(B).[9] Given the elimination of the liability credit, a plaintiff with $100,000 in damages will be able to recover $50,000 from the defendant’s insurer and $50,000 from his/her UIM carrier. It should be noted that this example assumes that the plaintiff has not elected to reduce his/her UIM coverage by the liability limits.[10] In our experience, elections to reduce are uncommon because the default rule is that the July 1, 2023 change applies, and any election to reduce must be in writing.[11] However, if the plaintiff elected to reduce, then the worst case scenario would still be $50,000 in coverage, unless both the plaintiff and defendant failed to purchase auto insurance, which would be illegal under the July 1, 2024 change.
The amount of auto insurance applicable to a personal injury case can be a complicated issue that varies on a case-by-case basis. If you have been injured in a motor vehicle collision where the at-fault driver has no insurance coverage or limited insurance coverage, contact one of our personal injury attorneys who can evaluate all of the facts and circumstances of your case, determine the total amount of potentially applicable insurance coverage, and advise you of your legal remedies to obtain the most amount of compensation possible.
[1] Va. Code § 38.2-2206(B) (effective July 1, 2023).
[2] See Va. Code § 38.2-2202(C).
[3] Va. Code § 46.2-706 (effective July 1, 2024).
[4] Va. Code § 46.2-706(B) (effective July 1, 2024).
[5] Va. Code § 46.2-472.
[6] Va. Code § 46.2-472(A)(3).
[7] See Va. Code § 46.2-472(B)(3).
[8] Va. Code § 38.2-2202(B).
[9] See Va. Code § 46.2-472(B)(3); Va. Code § 38.2-2202(B) (requiring UM/UM limits to be “no lower than the financial responsibility limits required by § 46.2-472”).
[10] See Va. Code § 38.2-2202(C).
[11] See id.
Tuesday, June 18th, 2024
We all make mistakes. Mistakes happen at home; they happen driving to work, mistakes are made here in the law firm, and mistakes happen in the practice of medicine. A victim seeking compensation arising from a medical mistake, “medical malpractice,” faces legal challenges to recovery in Virginia which are unique among tort victims. This is why having an experienced Virginia medical malpractice attorney can make or break a case.
For instance, unlike all other personal injury claims, medical malpractice cases have a cap, or limit, on recovery imposed by Virginia law which applies regardless of the severity of the injury or amount of damages suffered.[1] Also, a medical malpractice case cannot begin until an appropriate expert provides a signed certification confirming that the harm arose from a breach of the applicable standard of care. [2] Not just any “expert” will do. Virginia requires that the certifying expert have the same or similar clinical experience as the potential defendant “within one year” of the mistake at issue, and that the expert be familiar with the standard of care in Virginia. Finding the medical expert who satisfies these criteria, and who is willing to criticize another professional colleague, is sometimes impossible; and always costs money.
Additionally, obtaining the relevant medical records and identifying the potential providers – and their employers – who may be responsible for mistakes can be daunting. The advent of electronic medical records has reduced human-input to “charting by exception.” Translated, this means: 90% of the medical record is complete with presumptive normals (and charting designed to facilitate reimbursement) before the patient ever presents. The providers presumably then override the auto-populated format to document complaints and symptoms relevant to diagnose, treat and communicate the patient’s present symptoms.
Questions to Consider
These are just a few of the many challenges imposed to create financial disincentives to pursing malpractice cases in Virginia. The legislative deck is stacked decidedly in favor of healthcare providers from start to finish. To be prepared for, and to overcome, these hurdles, early evaluation and action must be taken to identify issues and claims, and to preserve evidence which may be destroyed or lost in the ordinary course. Following is a list of questions and issues to consider at the outset of each potential malpractice case:
- Is there information outside of the medical record such as video, voice messaging or text messaging relevant to the claim?
- Are there laboratory slides, biologic samples, toxicology or orthopedic appliances or devices which need to be preserved?
- Are there parties or witnesses whose testimony should be preserved?
- In cases of wrongful death, was an autopsy performed?
- Is an autopsy necessary?
- Who should perform the autopsy and where?
- Who should be invited to attend the autopsy?
- When does the statute of limitations expire?
- Limitations periods vary for minors;
- Limitations periods may extend for retained foreign bodies;
- Limitations periods may extend for failure to diagnose cancer;
- Virginia Tort Claims Notice may be required within one year for providers employed by the State;
- Apologies and “expressions of sympathy” by healthcare provides are inadmissible as evidence of liability by statute![3]
- Evidence of the standard of care required may be offered only through the testimony of expert witnesses;
- Does the potential defendant have a reported claims history?
- Does the potential defendant’s insurance policy have a “consent to settle” provision?
- Is there a “better” choice of potential venues to file the claim?
- Do the injuries and damages justify the expense associated with pursuing the claim?
- Do the medical records corroborate the plaintiff’s understanding of the treatment provided?
Conclusion
Of course this is not an exhaustive itemization of issues, but the statutory framework governing medical malpractice cases demands early understanding and evaluation of the obstacles to recovery. Without exception, the cases are defended vigorously, and they are expensive to prosecute. Hospital systems and insurance underwriters have little fear of defending cases in Virginia where the malpractice cap has effectively eliminated their duty to protect the healthcare providers from multimillion dollar verdicts. The job of an underwriter has already been performed by the Virginia legislature. As illogical as it may sound, the cap on recovery actually serves as a disincentive to the insurance carrier’s obligation to resolve the most egregious cases, because, the carrier’s attitude becomes: “well, the most we can lose is the cap, and regardless of the merits of the case, there is always a chance we might win.”[4]
Each client and each case is unique. Despite the considerations outlined here, we take pride specializing in medical malpractice cases and our ability to understand the consequences suffered by our clients, developing their stories, and leveling the playing field when litigating these cases. Over decades of trying hundreds of malpractice cases, Gentry Locke has developed the staff, the experience and the reputation necessary to bring justice to our clients whose lives have been upended by medical mistakes. Our medical malpractice attorneys are supported by staff including registered nurses familiar with not only the medical issues, but also the litigation tactics and defenses asserted in response to thousands of claims over the years. Each member of our team works together with our clients and our referring counsel toward a resolution which provides accountability for the mistake. Contact us for all your medical malpractice needs or concerns.
[1] Va. Code § 8.01-581.15.
[2] The “standard of care” is defined as “the degree of skill and diligence practiced by a reasonably prudent practitioner..” Va. Code § 8.01-581.20(A)
[3] Va. Code § 8.01-581.20:1
[4] This attitude actually extends another step in cases a carrier expects to lose: “we will appeal and delay any recovery to the plaintiff.”
