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McGavin, Boyce, Bardot, Thorsen, & Katz, PC Tel: 703.385.1000
Fax: 703.385.1555
9990 Fairfax Boulevard, Suite 400
Fairfax, Virginia 22030

Author: dcranford

Court of Appeals Upholds Sustention of Plea in Bar Without Hearing Motion to Substitute

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On Tuesday, March 12, 2024, the Virginia Court of Appeals, in an unpublished opinion, upheld the sustention of a Plea in Bar where the wrong corporate entities were sued for personal injury.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

Reckless Driving Statute Not Ground for Negligence Per Se

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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.

Brown v. Kirkpatrick-Court Issues Opinion Reversing the Decision of the Original Panel

Posted on by dcranford

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.

Holiday Spirit

Posted on by dcranford

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. 

Northern Virginia Magazine recognizes Attorneys from McGavin, Boyce, Bardot, Thorsen & Katz, P.C. as “Top Lawyers”

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In its December 2023 issue, Northern Virginia Magazine recognized John D. McGavin, Melissa H. Katz, Dawn E. Boyce, and Heather K. Bardot on the 2023 list of Top Lawyers for the region in the areas of personal injury and civil defense.  The firm congratulates each for their well-deserved inclusion in this list. 

Photos of McGavin, Katz, Boyce, and Bardot

Congratulations To Dawn Boyce For Her Recognition In The Virginia Lawyers Weekly!

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Dawn was recently recognized spotlighted in the Virginia Lawyers Weekly as one of the “best-known and hardest-working managing partners of law firms in the Commonwealth.” These accolades are well-deserved as she balances her caseload with making sure the firm is well led, along with John McGavin.  The firm is very lucky to have two such talented attorneys manning the helm.   The following was posted in the Virginia Lawyers Weekly and gives more insight into Dawn’s practice and other commitments:  

“Dawn E. Boyce joined McGavin, Boyce, Bardot, Thorsen & Katz right after law school — and never looked back. Today she is a managing partner at the Fairfax firm, which employs a dozen attorneys practicing civil defense and insurance law.

In her diverse practice, Boyce focuses on claims involving insurance coverage disputes, local government and school board litigation, and workers’ compensation at both the trial court and appellate levels.

She touts the firm’s reputation for efficiently moving cases toward a successful resolution, and notes that her work colleagues are particularly known for being focused and responsive to the needs of their clients — and devoted to developing successful attorney-client relationships based upon mutual trust and respect.

Last July, the Supreme Court of Virginia appointed Boyce to the Disciplinary Committee for the Fifth District. The appointment comes following six years of service on the Virginia State Bar Standing Committee of Ethics, including three years as Vice Chair, and four years of service as a Disciplinary Committee member.

She serves on the Ethics Committee for the Local Government Association, and she is a Fellow of the Litigation Counsel of America and a member of the Boyd Graves Conference. She also serves on the Virginia Association of Defense Attorneys Board of Editors for the Journal of Civil Litigation.”

Fourth Circuit affirms Summary Judgment based on Qualified Immunity in case involving use of pepper spray during traffic stop.

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By: Dawn Boyce and Emily Blake

Officer, who used pepper spray only once with a burst at the arrestee’s forehead, while attempting to take control of a driver during a traffic stop did not violate Fourth Amendment. Omeish v. Kincaid, 2023 U.S. App. LEXIS 30403 (4th Cir. 2023).

The Fourth Circuit affirmed the District Court’s grant of summary judgment to the officer, finding that there was no clearly established legal precedent set by the Supreme Court, the Fourth Circuit, or the general consensus of persuasive authority governing the question presented to inform a reasonable officer that such use was unlawful under the facts of the case.

The arrestee repeatedly failed to comply with the officer’s commands during a lawful traffic stop and resisted his attempts to arrest her on the side of a busy road, a location dangerous to the officer. Because the court found there was no violation of a clearly established right, it did not address whether the use of paper spray under the circumstances was excessive.

D.C. Superior Court Clarifies Tolling Period for Statute of Limitations by Covid-19

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In Washington, D.C., the statute of limitations for personal injury is three years from the incident date. However, as in most places, the outbreak of the Covid-19 pandemic resulted in lockdowns and temporary closures of the judiciary. As such, the statute of limitations was tolled for a certain period of time in many jurisdictions.

In Washington, D.C., that tolling period is 378 days between March 18, 2020 and March 30, 2021.

The D.C. Superior Court suspended its operations by emergency order on March 18, 2020. Over the next year, it filed order after order re-asserting the period of Judicial Emergency until on March 31, 2021, it issued an Order confirming that the tolling period was over. The Order immediately before that, dated January 13, 2021, set March 30, 2021 as the expiration date for the Judicial Emergency. The exceptions are for cases subject to a statutory moratorium and for writs of restitution, per Rule 16.

If the date of incident in your case was before March 18, 2020, the injured plaintiff will have three years, and then an extra year + 13 days, or a leap year + 12 days (378 days total as the tolling period), to file his lawsuit.

DC Court of Appeals affirms Summary Judgment in case involving independent contractor

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This District of Columbia Court of Appeals recently affirmed summary judgment in favor of the defendants in a case arising out of property damage claimed to have been caused by tree trimming. The undisputed material facts demonstrated the work was performed by an independent contractor.  In general, “when a person hires another to do certain work, reserving no control over either the work or the workmen, a relationship of contractee and contractor exists . . . and the contractee is not liable for injuries to a third party resulting from the work of the independent contractor” Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991).

On appeal, Plaintiffs/Appellants argued a jury question existed as to whether tree trimming constituted inherently dangerous work, noting “[t]he existence of [a] danger and knowledge of it by the employer are normally questions of fact for the jury.” District of Columbia v. Howell, 607 A.2d 501, 505 (D.C. 1982). The Court of Appeals, however, held the burden is on the plaintiff to show that the particular work in question is an inherently dangerous activity and because the appellants submitted no evidence or precedent to establish that the tree work performed in the case at hand was “inherently dangerous” the trial judge properly found in favor of the defendants.

Anna G. Zick successfully represented the defendants in the trial court and on appeal.

Egbon v. Smith, Case No. 21-CV-0592 (Decided November 7, 2023).

Congratulations to John D. McGavin (again) for 2024 Lawyer of the Year Award! 

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The Firm congratulates John D. McGavin again on his recognition as the 2024 “Lawyer of the Year” in Personal Injury Litigation – Defendants in Washington, D.C.

Best Lawyers has been regarded by lawyers and the public for more than 40 years as the most credible measure of legal integrity and distinction in the United States and recognition signifies excellence in practice.