Author: dcranford

Directors John McGavin and Melissa Katz presenting at the Fairfax Law Foundation’s Inaugural CLE for early-career attorneys with a focus on the skills necessary to stand out and excel in their careers.

By Melissa Katz

Let’s be honest: how you use your car horn probably says more about your state of mind than you’d like to admit.

You’re at a red light. It turns green. The car in front of you doesn’t budge. Now you’re faced with a choice and it’s not just about traffic etiquette. It’s a mini personality test in real time.

Do you go for the polite beep-beep a soft nudge that says, “Hey there, just a friendly reminder, we’re good to go”?

Or do you let your stress take the wheel?

You’re already wound up. Impatience is practically seeping through your skin. The light turns green, and the driver ahead delays – longer than what most of us would consider prudent (because yes, we all know that green is not an unqualified command to floor it). But in your present state, you don’t pause. You don’t reflect. You go full horn. An all-caps “GO!” screamed in decibels. It’s the driving equivalent of rage-texting.

And then, just like that, you realize what you’ve done.

There’s a flicker of chagrin, a little embarrassment at this very public display of your internal pressure cooker. It’s not your proudest moment.

Compare that to the version of you who waits patiently. Who maybe gives a gentle beep-beep if needed. The one who recognizes that the person in front of you might just be distracted, not malicious. The difference between those two horn responses is an oddly accurate barometer of how you’re doing.  

So keep yourself in check. Because the truth is, we don’t just drive our car, we project ourselves through them. Our stress, our irritation, our mood. That horn is often our first, rawest reaction.

A friendly beep usually gets a wave. A smile. A nod of thanks.

The angry honk? At best, a scowl. At worst, a flipped bird or a retaliatory brake-check. And in today’s world filled with emotionally frayed, hyper-reactive, and occasionally armed drivers – that’s not a risk worth taking.

This isn’t just about driving.  It is about who you are when no one’s watching. If you can pause, breathe, and choose kindness when you’re behind the wheel, you’re not just being a better driver. You’re being a better human.

So the next time you’re tempted to honk your frustration into the universe, ask yourself: is this a beep beep moment… or a deep breath one? If the latter – pause and reset to beep beep mode.  

Defense wins often come down to knowing the rules and using them precisely. In Ramiro v. Kershner, the Court of Appeals of Virginia affirmed the dismissal of a negligence claim where the plaintiff failed to serve within the statutory one-year window and then compounded the error by mishandling the appellate record.

The takeaway? Serve the rules, and they’ll serve you.

If you’re a young litigator, read on. If you’re a seasoned attorney, consider this a cautionary tale worth revisiting.

1. The One-Year Rule is Not a Suggestion

Virginia Code § 8.01-275.1 requires service within one year of filing. If not, the plaintiff must affirmatively prove “due diligence.” This is a high bar, and courts are rightfully skeptical of vague efforts or unexplained delays.

In this case, the defendant was not served until over fifteen months after filing, despite no clear explanation for the delay. The defendant moved to dismiss under Rule 3:5 and § 8.01-277(B), arguing that plaintiff failed to act with diligence. The circuit court agreed and dismissed the claim with prejudice.

2. The Appeal Failed Because the Record Did

Instead of filing a transcript of the dismissal hearing, the plaintiff attempted a written statement of facts—a risky substitute that must strictly comply with Rule 5A:8(c):

• Must be filed within 60 days of final judgment.
• Must include notice that the statement will be presented to the trial judge between 15 and 20 days after filing.
• Must be served on opposing counsel the same day it’s filed.
• Must be signed by the judge to be valid.

The plaintiff’s statement failed all of the above. Without a valid statement or transcript, there was no record of what was argued or decided and thus, nothing for the appellate court to review. The Court held that the plaintiff waived his assignment of error, and the dismissal was affirmed without oral argument.

Which brings us to the most satisfying sentence for a defense attorney to hear:
“We cannot consider the issue… Ramiro’s assignment of error is thus waived.”

3. Defense Strategy Takeaways

Always preserve your wins.

If you secure a dismissal, build a record that can survive appeal. Here, the defense made sure the circuit court’s ruling was clear, factual, and firmly grounded in the plaintiff’s lack of diligence.

Know how Rule 5A:8 works—for both sides.

Appellants often misuse statements of facts, failing to utilize the proper procedure. Know the checklist cold, and be ready to challenge any defects that prevent the record from being properly formed.

Hold the plaintiff to their burden.

The law requires diligence—don’t let vague claims of “trying” or “following up” substitute for documented, consistent service efforts.

4. Final Word: Let the Rules Work for You

Ramiro v. Kershner is a reminder that in civil litigation, technical missteps can be fatal, and good advocacy isn’t just about persuasive writing or good oral argument. It’s about knowing the rules and following them to the letter.
In defense litigation, that’s not just strategy. That’s survival.

Congratulations to John D. McGavin, Melissa H. Katz, and Michael E. Thorsen for being recognized by THE WASHINGTONIAN as TOP CIVIL DEFENSE LAWYERS in 2024.

Congratulations to Dawn E. Boyce on being named by Virginia Lawyers Weekly to the 2025 Class of Influential Women of Law!  An honor well deserved.  Dawn will be celebrated along with this year’s other honorees at a reception and awards program at the John Marshall Ballrooms in Richmond in February. 

On Tuesday, March 12, 2024, the Virginia Court of Appeals, in an unpublished opinion, upheld the sustention of a Plea in Bar where the wrong corporate entities were sued for personal injury.

The plaintiff fell in a bar and restaurant in Loudoun County. Shortly before the expiration of the statute of limitations, he filed suit against two corporate entities. Unbeknownst to him, these were the wrong defendants. They did not own or manage the restaurant where the incident took place. However, the entities share a common principal owner/member and registered agent.

The defendants filed a plea in bar against the Complaint explaining that they are the wrong defendants. Shortly before the Court heard evidence as to the Pleas in Bar, the plaintiff discovered the correct entity and attempted to move to substitute the defendants. However, he was not able to schedule the substitution motion’s hearing before the Plea in Bar evidentiary hearing. So at that hearing, he argued that the Court should first hear his Motion to Substitute before ruling on the Pleas in Bar. The Loudoun Circuit Court declined to do so.

After the Pleas in Bar were sustained on the evidence, the Plaintiff appealed to the Court of Appeals, arguing that it was procedurally improper for the Court to do so when his Motion to Substitute offered a more expedient dispensation of the issues in the case. The Court of Appeals held that what the Loudoun Circuit Court had done was not an abuse of discretion, and affirmed the sustention.

In a personal injury case pending in the Circuit Court of Fairfax County, the Court sustained Defendant’s demurrer with respect to the Plaintiff’s negligence per se claim predicated upon Va. Code § 46.2-861. The Code section, titled “Driving too fast for highway and traffic conditions,” provides “A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.”

The common law definition of negligence is, “the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person would not have done under existing circumstances.” Moore v. Virginia Transit Co., 188 Va. 493, 498 (1949). The negligence per se doctrine may be implicated when a statute articulates a standard of care that deviates from that established norm; however, not all statutory provisions dictate a standard of care, and therefore not all statutory violations can provide a basis for establishing negligence per se.

The Court’s opinion acknowledged that the standard of care for Code § 46.2-861 is reasonableness i.e., whether a speed is reasonable “under the circumstances and traffic conditions…” As a result, the Court held Code § 46.2-861 is nothing more than a reworded statement of common law negligence and dismissed the negligence per se claim.

On December 19, 2023, the Court of Appeals of Virginia reversed the original panel of the court which addressed the issue of waiver of subrogation pre-trial. The case arose from a motor vehicle accident and a jury award in April, 2022 to Michael Brown. Mr. Brown had sued Timothy Kirkpatrick who was insured with State Farm. State Farm had a policy of $50,000. USAA had underinsurance. As the case came up for trial, USAA agreed to waive subrogation so long as State Farm provided the defense and took the case through to trial. The jury returned a verdict of $286,000, well in excess of State Farm’s policy. USAA paid the underinsurance and then moved to mark the judgment as paid and satisfied.

The plaintiff objected, arguing that the waiver of subrogation by USAA caused the right of subrogation to essentially revert back to the plaintiff. The trial court disagreed and ruled that the judgment should be marked as paid and satisfied. Plaintiff Brown appealed and the Court of Appeals in a 2-1 decision ruled that the waiver extinguished the right of subrogation and allowed Mr. Brown to have the right to seek a double recovery and recover from Kirkpatrick the $236,000 that State Farm did not satisfy. Essentially, plaintiff sought a double recovery. In that original panel decision, the court held that the waiver reverted the right back to the plaintiff for subrogation. The court also held that the payment by USAA was a collateral source which could not be considered in regard to mark the judgment as paid and satisfied.

This firm represented the interests of Timothy Kirkpatrick on appeal. We were asked to take over the appeal after the original verdict. After receipt of the panel Opinion, we filed a Petition for Rehearing which was granted. Then, the case was heard en banc before the entire panel of judges of the Court of Appeals. The Opinion was entered on December 19, 2023 and reversed the original panel and affirmed the decision of the trial court. Judge Huff wrote the Opinion for the court. He determined that the subrogation right remains with USAA and their agreement with State Farm did not constitute a reversion or assignment of any right to the plaintiff. Instead, he ruled that USAA still owns that right but has elected not to pursue it as was the agreement that was reached. The court dismissed the collateral source argument on the grounds that collateral source is most typically applicable in circumstances where such evidence is being offered at trial. In other words, it is an evidentiary standard more than anything else.

This is a significant Opinion and will be a published Opinion and much discussed.

John McGavin was the lead attorney on the appeal and presented oral argument before the original panel and then before the full en banc panel. Mr. McGavin is available to discuss the Opinion and/or explain the legal analysis at your convenience.

This is the third year in a row that our firm has sponsored a local family for the holidays.  We thank our attorneys and staff for their contributions in efforts to bring some joy to others.