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.
Comments Off on Reviewing Copyright & Generative AI: The Good, the Bad, and the Unanswered
Category | Tags:
Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.
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.”
Wednesday, June 12th, 2024
Article co-written by Andrew Gay, Jeff Southard, and Summer Associate Carter Leverette
In early May, the Supreme Court of Virginia’s decision in Montalla, LLC v. Commonwealth, established some favorable legal precedent for contractors doing business with the Commonwealth of Virginia.[1] Specifically, the Court noted that the Doctrine of Sovereign Immunity cannot be used as a defense by the Commonwealth when a party brings a claim against it based upon a valid contract entered into by a duly authorized government agent.[2] Traditionally, the doctrine of sovereign immunity prevents parties from being able to sue federal or state governments when they are acting within the scope of their governmental authority unless the government consents to being sued. The Court’s finding in Montalla is critical as it clarifies that actions based upon a valid contract renders sovereign immunity inapplicable, making the government liable to suit even without their consent. Additionally, remedies usually barred by sovereign immunity are now available to parties bringing contract claims against the Commonwealth. In this case, the Court held that the plaintiff could seek an equitable remedy against the government (e.g., to seek equitable recission of a settlement agreement)[3] and a statutorily provided remedy even though the statute itself did not expressly waive sovereign immunity.[4]
Montalla, LLC acquired the rights to service contracts that a previous company (NXL) had entered into with the Virginia Department of Transportation (VDOT). During NXL’s dealing with VDOT, VDOT refused to reimburse NXL for overhead costs that the service contracts had initially obligated VDOT to reimburse due to conflicting interpretations of the Federal Acquisition Regulations (FAR). VDOT’s position was that VDOT did not have to reimburse NXL for overhead costs that were not eligible for federal reimbursement. NXL’s position was that although certain overhead costs may not have been eligible for federal reimbursement, the FAR did not forbid VDOT from still reimbursing NXL under the service contracts. Ultimately, NXL began to lose money on the service contracts and was forced into a position where NXL agreed to settle with VDOT for reimbursements far below the original agreed-upon percentage.
During the settlement negotiations, VDOT sought guidance from the Federal Highway Administration (FHWA) on how the FAR provisions in question should be interpreted. The FHWA sided with NXL’s interpretation of the FAR provisions. VDOT planned to adopt the FHWA and NXL’s position as VDOT’s official policy moving forward but intentionally chose to hold off on doing so until it entered a favorable VDOT settlement with NXL. However, VDOT was not forthcoming about this development with NXL and used NXL’s deteriorating financial situation to its advantage. Once NXL caught wind of the FHWA interpretation and VDOT’s policy maneuvering VDOT was unwilling to revisit settlement discussions.
Montalla filed a five count lawsuit against the Commonwealth of Virginia, VDOT, and the Comptroller of Virginia. Montalla sought to rescind the settlement agreement on two claims due to VDOT’s use of its self-induced economic leverage and less than candid dealings with NXL during the settlement negotiations. These first two counts became the focus of the litigation, and the Supreme Court of Virginia’s decision. The first count sought a declaratory judgment that the settlement agreement entered into by NXL was void due to economic duress. Montalla’s second count sought to vacate the settlement agreement pursuant to a Virginia statute, which provided that a court shall vacate any agreement “reached in a mediation … where … [t]he agreement was procured by fraud or duress, or is unconscionable[.]”[5] The third, fourth, and fifth counts were claims that VDOT breached its duty of good faith and fair dealing, material breach of the service contracts, and that VDOT’s actions constituted a regulatory taking without just compensation in violation of Article I, Section 11 of the Constitution of Virginia.
At the trial, the circuit court dismissed the entire complaint, with prejudice, on the grounds that sovereign immunity barred all five counts. Montalla appealed the trial court’s ruling to the Court of Appeals, but its luck didn’t change. The Court of Appeals affirmed the circuit court’s ruling, “concluding that Counts I-III of the complaint were barred by sovereign immunity and that Counts IV-V were barred by the entry of a settlement agreement entered into by the pertinent parties.”[6]
Montalla then appealed its claims to the Supreme Court of Virginia, which stated that the lower courts were correct in that the doctrine of sovereign immunity “is alive and well in Virginia.”[7] However, the court of appeals erred on the basis that “Virginia has ‘never extended th[e] defense [of sovereign immunity] to actions based upon valid contracts entered into by duly authorized agents of the government.’”[8] The Court then reasoned that “ the sole remaining question regarding the Commonwealth’s claim of sovereign immunity is whether Montalla’s claims are ‘based upon valid contracts[.]’”[9] Further reasoning that “it is the nature of the dispute and not the remedy sought that determines whether an action is based upon [a] contract.”[10] If the court must focus on a “duty or obligation” that the plaintiff claims has been breached, then “the nature of the dispute” is based upon a contract.[11]
Diving deeper, the Supreme Court held that the court of appeals erred in applying sovereign immunity to count one (equitable rescission of the settlement agreement) because it did not limit “its focus to the source of the duty allegedly breached, but rather, focused on the nature of the remedy sought.”[12] The Court discussed that while equitable remedies are usually unavailable against the Commonwealth, “equitable contract remedies” must be available against the Commonwealth to prevent it from avoiding “obligations it undertook in validly entered contracts.”[13] As to count two (recission of the settlement agreement pursuant to Va. Code § 8.01-581.26), the Supreme Court once again held that the court of appeals erred in applying sovereign immunity because it “[f]ocused on the remedy sought as opposed to the basis of the action itself[.]” The Court agreed with the appellate court’s reasoning that indeed, “a general statute that does not contain an express waiver of sovereign immunity does not waive the Commonwealth’s immunity.”[14] However, the Supreme Court reasoned that this principle is only applicable if sovereign immunity applies in the first place, which, in a contract dispute, it is not. The Court finally held that the viability of counts three, four, and five would now depend upon the success of counts one and two on remand, which were no longer barred by sovereign immunity.
In conclusion, contractors dealing with the Commonwealth should be aware that when they enter into valid contracts with the Commonwealth, they can hold it accountable for those contracts and seek lawful remedies that may otherwise be unavailable due to sovereign immunity.
[1] Montalla, LLC v. Commonwealth, No. 230364, 2024 Va. LEXIS 28 (2024).
[2] Id. at 15.
[3] Id. at 19.
[4] Id. at 21–22.
[5] Id. at 21 (quoting VA. Code § 8.01-581.26).
[6] Id. at 1.
[7] Id. at 13 (quoting Fines v. Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 313 (2022)).
[8] Id. at 15 (quoting Wiecking v. Allied Medical Supply Corp., 239 Va. 548, 551 (1990)) (alterations in original). Still, the Court noted that “[t]his is not to say that a party seeking to raise a contractual claim against the Commonwealth or one of its agencies simply may file suit in a circuit court as it would against any other litigant,” a party must follow the procedures established in Va. Code § 8.01-192. Id.
[9] Id. at 17.
[10] Id. at 18.
[11] Id.
[12] Id.
[13] Id. at 19.
[14] Id. at 21–22.
Friday, May 31st, 2024
Tractor-trailer crashes differ from motor vehicle collisions because there are many companies and individuals involved in the transportation and logistics industry, meaning various people or entities may be at fault for causing a catastrophic or fatal truck accident. As Virginia truck accident attorneys, we have noticed that that there are a wide variety of potential defendants in truck crash cases, including, but not limited to: (1) truck drivers, (2) motor carriers, (3) intermodal equipment providers, (4) shippers, (5) brokers, and (6) manufacturers.
Generally, federal and Virginia law only require motor carriers to carry $750,000 in liability insurance, except greater limits are required for motor carriers hauling certain kinds of freight, such as hazardous materials.[1] When a tractor-trailer is involved in an accident, catastrophic injuries and death often result. Each year in the United States, approximately 5,000 to 6,000 people die in truck crashes, and approximately 155,000 people are injured in truck crashes.[2] For this reason, $750,000 is commonly insufficient to fully compensate the victim of a truck crash. Therefore, a thorough investigation of your tractor-trailer collision is imperative because failing to identify all potential defendants may significantly limit your recovery in a Virginia personal injury or wrongful death case.
1. Truck Drivers
Truck drivers are regularly at fault for causing tractor-trailer collisions. Most often, truck drivers are responsible because of some sort of negligent operation of the commercial motor vehicle, such as making an improper lane change, failing to maintain proper control, failing to keep a proper lookout, failing to yield the right of way, traveling too fast under the circumstances, etc. However, truck drivers can also be responsible for other types of negligence, like failing to inspect and maintain the tractor-trailer. Federal law requires truck drivers operating in interstate commerce to complete daily driver inspection reports and “[b]e satisfied that the motor vehicle is in safe operating condition” prior to operating any commercial motor vehicle.[3]
Although the truck driver’s negligence may be the primary cause of a truck accident, other companies or individuals may also bear responsibility. A plaintiff who only sues the truck driver will likely face a limited recovery, especially if there is insufficient or inapplicable insurance coverage and the truck driver does not have any significant personal assets. Thus, it is rare for the truck driver to be the only defendant in a truck accident case.
2. Motor Carriers
A motor carrier is the “person providing motor vehicle transportation for compensation,” which is usually a trucking company.[4] There are two types of claims that can be alleged against motor carriers in truck crash cases: (1) direct liability claims, and (2) vicarious liability claims. Direct liability claims are those attributable to the motor carrier’s misconduct. For example, a motor carrier may negligently hire or retain a truck driver who has repeated traffic convictions for causing crashes due to his or her reckless driving. On the other hand, vicarious liability claims are those attributable to an employee or agent’s misconduct. For example, a plaintiff can sue a motor carrier for its truck driver’s negligence that occurred in the course and scope of the truck driver’s employment or agency relationship with the motor carrier.
The Federal Motor Carrier Safety Regulations (“FMCSRs”) prescribe many rules and obligations for motor carriers operating in interstate commerce.[5] If the motor carrier violates the FMCSRs and such violation causes a tractor-trailer crash resulting in personal injuries or death, then the motor carrier may be held liable for negligence per se under Virginia law.[6] Therefore, it is important to retain a truck accident attorney that is intimately familiar with the FMCSRs.
3. Intermodal Equipment Providers
In the trucking industry, trucking companies often agree to share their equipment through interchange agreements. Intermodal equipment is “trailing equipment that is used in the intermodal transportation of containers over public highways in interstate commerce, including trailers and chassis.”[7] An intermodal equipment provider is “any person that interchanges equipment with a motor carrier pursuant to a written interchange agreement or has contractual responsibility for the maintenance of the intermodal equipment.”[8]
The FMCSRs require intermodal equipment providers operating in interstate commerce to “systematically inspect, repair, and maintain” their equipment and keep parts and accessories “in a safe and proper operating condition at all times.”[9] If an intermodal equipment provider fails to properly maintain its equipment, provides such defective equipment to a trucking company, and the defective equipment causes a crash, then the intermodal equipment provider may be liable for negligently entrusting its equipment to the trucking company. For example, an intermodal equipment provider supplying a trailer with improperly maintained brakes may be liable for negligently entrusting the trailer to another.[10]
4. Shippers
In some instances, shippers are responsible for truck crashes. The typical situation is where the shipper negligently loads or secures the trailer’s freight. If the freight is improperly loaded or secured, then the load may shift or even fall off, which can lead to a catastrophic truck collision.
5. Brokers
In the trucking industry, shippers regularly hire freight brokers, who act as middle men and are involved in the business of selecting motor carriers to transport the freight. Some courts have recognized that a broker may be liable under Virginia law for negligently hiring an incompetent motor carrier.[11] This is because readily available information, like statistics published on the United States Department of Transportation’s website, may show that it was well known that the selected motor carrier frequently committed safety violations or hired incompetent drivers. A broker may also be liable if it exercised so much control over the negligent truck driver that it formed a principal-agent relationship. There is currently a disagreement among federal circuit courts about whether certain broker claims are preempted (barred) by the Federal Aviation Administration Authorization Act (F4A).[12]
6. Manufacturers
Truck and trailer manufacturers may also be responsible for a trucking collision if a part on the truck or trailer was defective and such defect caused the collision. For example, the truck or trailer manufacturer may have negligently manufactured or negligently designed a key component, like the brakes.
Given the wide variety of entities and individuals that may be at fault in a Virginia truck accident case, it is crucial to hire an attorney that specifically focuses on tractor-trailer cases. Gentry Locke has a team of Virginia tractor-trailer accident attorneys with a breadth of knowledge and experience. Contact one of our truck crash lawyers today for a consultation.
[1] See 49 C.F.R. § 387.9; Va. Code Ann. § 46.2-2143.1(B).
[2] See Large Trucks, NSC Injury Facts (2024), https://injuryfacts.nsc.org/motor-vehicle/road-users/large-trucks/.
[3] 49 C.F.R. § 396.11; 49 C.F.R. § 396.13.
[4] 49 U.S.C. § 13102(4); see also 49 C.F.R. § 390.5.
[5] See 49 C.F.R. § 390.3(a).
[6] See McKeown v. Rahim, 446 F. Supp. 3d 69, 76-77 (W.D. Va. 2020).
[7] 49 C.F.R. § 390.5.
[8] Id.
[9] 49 C.F.R. § 396.3(a); see also 49 C.F.R. § 390.40.
[10] See Hack v. Nester, 241 Va. 499, 504 (1990) (“An owner is negligent if he entrusts his vehicle to another person when the owner knows, or reasonably should know that the vehicle’s condition makes its normal operation unsafe.”); Darnell v. Lloyd, 2016 U.S. Dist. LEXIS 49811, at *10-14 (E.D. Va. 2016) (denying motion to dismiss negligent entrustment claim).
[11] See Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630, 642 (W.D. Va. 2008) (“The court agrees that the Virginia Supreme Court would extend the cause of action of negligent hiring of an independent contractor to this situation involving the selection of a carrier by a freight broker.”).
[12] See Ashley W. Winsky & Jeffrey P. Miller, Transportation Freight Brokers: Argue F4A Preemption but Take Additional Precautions (Nov. 2023), https://www.gentrylocke.com/article/transportation-freight-brokers-argue-f4a-preemption-but-take-additional-precautions/.
Wednesday, May 29th, 2024
Clients frequently tell us that everything seemed to move in slow motion during a catastrophic crash with a tractor-trailer. The moments leading up to the crash may be blurry, but the crash itself becomes etched in the victim’s brain and often requires the extensive passage of time to fade into the background.
Tractor-trailers can weigh up to 80,000 pounds and are behemoths compared to the average family-owned vehicle. The damage they can cause to a vehicle made of heavy metals is almost incomprehensible. It is therefore no surprise that accidents involving a tractor-trailer frequently result in devastating polytraumatic injuries to victims in smaller vehicles. In fact, National Highway Traffic Safety Administration’s (NHTSA) data shows approximately 6,000 deaths and 150,000 injuries each year in crashes involving large trucks.[1] Unsurprisingly, the vast majority of those injured are in passenger vehicles.[2]
In our cases, we have found that the first phone call a truck driver makes after a crash is to his dispatcher, who sets in motion a team of insurance agents, investigator risk managers, and truck accidents attorneys whose sole responsibility is to reduce or eliminate the truck driver’s responsibility for the crash. These individuals commonly reach the scene of the crash before the debris is removed, which provides them a huge advantage over the victims, their families, and their truck accidents attorneys. This article describes the steps you should take after a truck crash to level the playing field.
If you, your family or loved one(s) are involved in a crash involving a tractor-trailer, we urge you to make sure the following is done as quickly as possible, when feasible, and in the order listed below:
- Assess your injuries and any injuries to those in your vehicle and take immediate action to render first aid as necessary on the scene.
- As soon as it is safe to do so, call 911 or have someone else contact them and give the exact location of the crash and a preliminary report of the injuries. Don’t hesitate to ask for an ambulance, helicopter, etc.
- Contact your family/employer/loved one to report the crash and request any aid from them that may be necessary.
- Do not move your vehicle unless directed to do so by the police.
- Take or have someone take photos and videos of the scene of the crash, including the position of the vehicles and their relationship to physical objects, such as the side of the road, signage, etc. Take some photos at a fair distance from the crash site to give viewers a better overview of the scene.
- Take pictures of any obvious injuries at the scene.
- Once any injuries are stabilized and the accident scene is captured on video and/or in pictures, contact an experienced tractor-trailer/trucking attorney with the necessary resources to send a “go team” to the scene of the crash immediately. That team will be dispatched and preserve crucial evidence, which may determine the facts necessary to prove who was responsible for the crash and what damage was caused to property and people. The team will interview witnesses, inspect and photograph the scene, retain a qualified accident reconstruction expert, and capture aerial photographs if appropriate and necessary.
- If you are injured in any way, accept the offer of first responders to be transported to a trauma center to evaluate your condition. Truck crashes involve a tremendous amount of energy being transferred from the machinery to the human body. Victims often are injured in ways they don’t first appreciate, but could ultimately be life-threatening. Being checked out by qualified healthcare professionals is crucial.
- Once you have received appropriate emergency care and your situation is stabilized, begin writing a journal to give to your attorney. The journal should contain all the facts you can recall about and surrounding the accident. Make sure to include details of your experience since the moment of the crash, including any pain you have suffered, emotional trauma, and how the trauma and injuries have affected your life and those around you.
- As soon as possible, personally meet with your tractor-trailer/truck accidents attorneys and his or her team either at the hospital or some other mutually convenient location to allow them to assess the facts of the crash and your injuries. These meetings are crucial and should occur as soon as possible after the crash.
- Within a few days of the crash, report the accident to any and all insurance carriers who may insure you or your vehicle. Make the report by phone and follow up by email or letter.
- Tractor-trailer crashes are far more complicated than any other type of motor vehicle crash and should only be handled by an experienced tractor-trailer/truck accidents attorneys who is knowledgeable about the Federal Motor Carrier Safety Regulations. Also, make sure the attorney has handled similar crashes many times in the past. When you or your family select your personal injury attorney, make sure to thoroughly vet their biography to ensure they have the qualifications necessary to litigate with a huge insurance company and a sophisticated trucking company.
- For more information about truck safety concerns, visit the Truck Safety Coalition website.[3]
At Gentry Locke, we have the “go team” you need to successfully navigate your case. The team includes some of the most experienced truck accidents attorneys in the trucking industry. In addition, we have an in-house investigator, nurses, and paralegals who regularly navigate the complex rules and regulations governing federal motor carrier safety. We are happy to help you when needed. Contact us today to speak with a member of our team. Attorney Matthew W. Broughton is a licensed tractor-trailer driver (CDL holder) and Partner in charge of plaintiff litigation with 39 years of experience handling truck cases.
[1] Traffic Safety Facts 2021 Data: Large Trucks, Nat’l Highway Safety Admin. (June 2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813452.pdf.
[2] Id.
[3] Truck Safety Coalition, https://trucksafety.org.
Friday, May 17th, 2024
In the latest settlement announced by DOJ under its Civil Cyber-Fraud Initiative, Insight Global LLC (Insight), an international staffing and services company, will pay $2.7 million to resolve allegations that it violated the False Claims Act (FCA) by failing to implement adequate cybersecurity measures to protect personal health information (PHI) and personally identifiable information (PII) under its contracts with the Pennsylvania Department of Health (PADOH).
The United States alleged that during the COVID-19 pandemic, PADOH hired Insight Global to provide staffing for COVID-19 contact tracing and paid Insight Global using funds from the U.S. Centers for Disease Control and Prevention. Insight Global understood that personal health information of contact tracing subjects needed to be kept confidential and secure, but it failed to do so.
Despite contractual requirements to keep personal information related to the services provided “confidential and secure” and comply with federal PHI safeguarding obligations, DOJ alleged that:
- PHI and PII of contact tracing subjects was transmitted in the body of unencrypted emails,
- Insight staff used shared passwords to access such information,
- Information was stored and transmitted using Google files that were not password protected and were potentially accessible to the public via internet links,
- Insight failed to provide adequate data security resources and training, and
- Insight ignored staff complaints about unsecure PHI/PII.
While state agency contracts typically do not fall within the scope of the FCA, PADOH used federal funds from the Centers for Disease Control and Prevention (CDC) to pay Insight, bringing the contract within the FCA’s purview. This is the second FCA Civil Cyber-Fraud settlement grounded in a state level contract. Thus, companies contracting with state governments must be aware of the possibility of FCA liability and must prioritize cybersecurity compliance.
The qui tam complaint which initiated this case was filed by Insight’s former Business Intelligence Reporting Manager. DOJ partially intervened in the relator’s claims, and the relator will receive a share award of nearly $500,000, evidencing both DOJ’s inclination to rely on whistleblowers as well as the financial incentives available to insiders with pertinent information. Further, as DOJ regularly points to a failure to remedy cybersecurity vulnerabilities when raised in complaints by employees as part of its alleged FCA violations, businesses must take these compliance complaints seriously.
With a continuous and rapid rise in cyber-attacks, class action suits over improper data protection practices, and government enforcement actions where companies are held liable for fraud based on improper cybersecurity and data protection practices, proactive compliance with privacy and cybersecurity laws is imperative. Particularly when doing business with the government, companies must ensure they are in compliance, both to avoid costly litigation and to build consumer trust.
