Mr. Waterman and his legal assistants wish clients and everyone else in Hampton Roads and throughout Virginia a very merry holiday season. Hopefully all will have a wonderful time with family and friends.
Hopefully too all will be safe over the break. Take care behind the wheel in particular, as unfortunately major holidays are always the major days for vehicle accidents in Virginia and nationally.
By letter dated December 21, 2010, the trial judge in the brain injury case of Gagnon v. Burns, No. 08-572 in Circuit Court for Gloucester County, Virginia, directed an additional hearing prior to entry of Final Judgment. The continuing issue is Defendant Burns’ joint and several liability for the $6,100,000.00+ jury award on August 27, 2010.
The judge found sufficient merit to the points raised by Mr. Waterman in Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability on December 16, 2010. His Motion in the Gagnon brain injury lawsuit will be scheduled after the New Year and allow Defendants opportunity to file a memorandum and argue in opposition.
On December 16, 2010, Mr. Waterman filed Plaintiff’s Supplemental Motion and Memorandum for Joint and Several Liability in the brain injury lawsuit of Gagnon v. Burns, Case No. 08-572 in Circuit Court for Gloucester County, Virginia. He found substantial new legal authority for a negligent joint tortfeasor being liable for the intentional torfeasor’s portion of the victim’s damage.
For at least 70 years, the Virginia Supreme Court has embraced the Restatement of Torts as authoritative. Example cases follow. Dunn, McCormack & MacPherson v. Connolly, 2010 Va. LEXIS 158 (April 20, 2010)(intentional tort); Kellermann v. McDonough, 278 Va. 478, 489 (2009)(assumed duty); Koffman v. Garnett, 265 Va. 12, 16 (2003)(assault elements)(sovereign immunity case); Dadato v. Strehler, 262 Va. 617, 628 (2001)(assumed duty); Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 583 (1990)(intentional misconduct); and Bloxom v. McCoy, 178 Va. 343, 349 (1941)(third persons).
The Restatement (Third) of Torts: Apportionment of Liability §14 at 117-121 (Cumm. 2010) is on point with the Gagnon brain injury case, and recognizes the joint and several liability of a negligent tortfeasor such as Defendant Burns for intentional tort. “Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort – A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to that person.”
Like Virginia, sister-state West Virginia is one of the few remaining “pure joint and several liability” states. In 2004, the West Virginia Supreme Court followed Restatement (Third) of Torts §14; held on point that “tortfeasors whose wrongful acts or omissions, whether committed intentionally or negligently, concur to cause injury are joint tortfeasors who are jointly and severally liable for the damages which result from the wrong so committed”; and upheld that the negligent tortfeasor was jointly and severally liable for the entire verdict despite the jury “apportioning thirty percent liability to Appellant based on negligence and seventy percent liability to Robert Cleavenger based on his intentional act”. Strahin v. Cleavenger, 216 W.Va. 175 (2004)(emphasis added).
Further, for the definition of “joint tortfeasors,” the West Virginia Supreme Court in Strahin looked to Black’s Law Dictionary. Likewise, the Virginia Supreme Court looks to Black’s for its definition; and so too should Gagnon for the brain injury victim.
On December 10, 2010, when the insurance company representatives failed to recommend paying policy limits to the vehicle accident victim by the deadline given, Mr. Waterman sent the case to suit. The next business day, December 13th, the insurer belatedly tendered its policy limits.
Its policy limits for the vehicle accident was $100,000.00. That was approaching twice the maximum it had low-balled previously.
On December 10, 2010, the Newport News Division of Bankruptcy Court for United States District Court for the Eastern District of Virginia entered companion Orders in Chapter 7 proceedings for discharge, In re Christine D. Newsome, No. 10-51792-SCS, and In re James S. Newsome, Jr., No. 10-51881-SCS. Those Orders lifted the automatic stay of Bankruptcy for purposes of entering final judgment and setting appeal bond against both Debtors in the brain injury case of Gagnon v. Burns, No. CL08-572 in Circuit Court for Gloucester County, Virginia.
On August 26, 2010, a Gloucester jury in Gagnon awarded the brain injury victim $6,100,000.00: $3,250,000.00 against Mr. Newsome, $500,000.00 against Ms. Newsome, and $1,250,000.00 against the Assistant Principal, William Robert Travis Burns; plus $1,100,000.00 in pre-judgment interest on each of those principal amounts. At hearing on November 9, 2010, the Judge in Gagnon tentatively set appeal bonds of $4,000,000.00 for Mr. Newsome, $750,000.00 for Ms. Newsome, and $1,700,000.00 for Assistant Principal Burns.
On December 2, 2010, another insurance company re-victimized a vehicle accident victim of its insured. In a clear case of liability and significant damages in York County, the offender’s insurer low-balled the Virginia victim motorist.
For years, insurance companies and other defense interests have massaged public thinking with advertizing campaigns, legislative agendas, political contributions, etc. Their deep-pocket tactics have conditioned citizens to view vehicle accident victims and other personal injury claimants as greedy, unsavory, and frivolous – despite most victims having legitimate claims.
Having predisposed people negatively toward claimants, many insurers play hardball against personal injury victims. They make subpar settlement offers to genuine vehicle accident victims, confident that they have poisoned the jury pool sufficiently in case the claimant does not knuckle under and instead files suit for fair compensation.
Mr. Waterman recounts a current vehicle accident case of lowballing. On February 4, 2010, a Yorktown motorist failed to yield the right of way while turning on State Route 17, cutting in front of an oncoming Gloucester motorist and causing a serious collision.
That vehicle accident victim sustained closed head and other injuries; required medical treatment and care and was disabled from work for more than 4 months; and 10 months after-the-fact still suffers some residual limitations. His past medical bills are more than $20,000.00 and his past lost wages are almost $25,000.00, totaling approximately $45,000.00 in fully-documented undeniable special damages alone!
Continue reading " Virginia: Insurers Re-Victimizing the Victim - a Lawyer’s Example " »
On December 1, 2010, Mr. Waterman reached a settlement agreement on a local vehicle accident claim without having to file suit. It was a two-car collision in Newport News, Virginia, involving residents of Yorktown and Newport News.
The vehicle accident victim initially was treated in the Emergency Room at Mary Immaculate Hospital. Subsequently the victim was treated by Sentara providers.
