Virginia: Will the Court of Appeals be abolished?

Senator Deeds of the Virginia General Assembly has introduced a bill which would abolish the Virginia Court of Appeals.  If the bill becomes law, the Court of Appeals will be abolished effective October 1, 2012, and the Supreme Court will again have authority to hear appeals of criminal, traffic, administrative, and domestic matters.  The bill will be referred to the Senate Courts Committee.

VIRGINIA: Driver's Ticketed for Charge That Does Not Exist

Virginia lawyers have uncovered a disturbing trend -- drivers convicted of an offense that is not a crime under state law.  In some localities, police have been charging drivers with “driving without proof of insurance” despite the fact that there is no law requiring a vehicle operator to carry such proof.  A bill that would require drivers to carry proof of insurance has been debated by the General Assembly three times, but it was never passed. 

In fact, Virginia does not even require drivers to possess car insurance.  Drivers can either insure their car or pay a $500 uninsured motor vehicle fee.  Failure to do either is a misdemeanor, but is only punishable by fines up to $500.  A Lynchburg lawyer stopped in Sussex County on Labor Day 2011 is challenging a charge of not having proof of insurance, but the judge has not yet ruled on the case.

For more information visit:

- “A Charge that’s not a crime: Driver’s ticketed for ‘driving without proof of insurance,’” Peter Vieth, Virginia Lawyers Weekly, December 19, 2011.

- “Lawyer Readies for Battle over ‘no insurance card,’” Peter Vieth, Virginia Lawyers Weekly, December 19, 2011. [Login required/Pay wall]

Maryland: “First Named Insured” Under Insurance Article Section 19-510 Is To Be Defined By Each Policy

Maryland’s Court of Special Appeals recently issued its opinion in  Swartzbaugh v.Encompass Insurance, addressing the statutory definition of “first named insured” as used in Insurance Article Section 19-510, and addressing its applications to waivers of uninsured motorist coverage.

When an insurer in Maryland issues a policy of automobile liability insurance, the insurer must also offer the named insured uninsured motorist coverage.  The insured may elect to waive uninsured motorist coverage in any amount above the minimum statutory insurance coverage of $30,000 stated in Transportation Article Section 17-103.  However, this waiver must be made in writing, and must be elected by the “first named insured.”  Unfortunately for anybody trying to understand these matters, “first name insured” is not defined by the statute.

In Swartzbaugh, the insured argued that a UM waiver is not valid unless the person identified first on the policy declaration sheet signs the waiver.  The Court reviewed the legislative history and held that since the statute does not contain a definition, and the legislative history does not provide a specific definition, the term “first named insured” is to be defined by the policy itself.   The Court of Special Appeals stated that the “first named insured” is the person identified by the policy as the first named insured.  In those instances where the policy fails to identify the first named insured, the Court will look to other documents related to the coverage to identify the individual.  In Swartzbaugh, the Court relied heavily on the waiver form’s language which stated that the signer was “the first named insured.” By incorporating this language into the otherwise silent policy, whoever signed the waiver form was, by default, the “first name insured” for the policy involved in the Swartzbaugh case.

Medicare attempts to streamline settling claims with potential future care.

In those cases where Medicare may have a claim for future treatment arising from a third-party’s actions, CMS has recently created  new procedure to streamline the process of closing a claim.  As noted in its September 29, 2011 policy memorandum, CMS will now consider its interest for future medical expenses satisfied if the treating physician prepares a written certification stating that the patient/claimant has completed treatment for the alleged injury related to the liability insurance settlement and that future medical treatment will not be required.  The memorandum states:

Where the beneficiary’s treating physician certifies in writing that treatment for the alleged injury related to the liability insurance (including self-insurance) ‘settlement’ has been completed as of the date of the ‘settlement,’ and that future medical items and/or services for that injury will not be required, Medicare considers its interest, with respect to future medicals for that particular ‘settlement,’ satisfied. If the beneficiary receives additional ‘settlements’ related to the underlying injury or illness, he/she must obtain a separate physician certification for those additional ‘settlements.’

  While this certification must be obtained for each separate settlement, the claimant is not required to submit the certification to CMS, but is merely “encouraged” to maintain the certification.  The memorandum states:

When the treating physician makes such a certification, there is no need for the beneficiary to submit the certification or a proposed LMSA amount for review. CMS will not provide the settling parties with confirmation that Medicare’s interest with respect to future medicals for that ‘settlement’ has been satisfied. Instead, the beneficiary and/or their representative are encouraged to maintain the physician’s certification.

The Old Dominion May Join 48 Other States in Adopting Rules of Evidence

The Virginia Supreme Court recently approved Rules of Evidence for practice in the courts of the Commonwealth.  Virginia had been one of two hold-outs, the other being Massachusetts, in not having codified Rules of Evidence.  The rules are based on case law and standard practice throughout Virginia and is not likely to make any substantive changes.  The goal is to streamline evidentiary issues for judges and practitioners.  The Supreme Court has submitted the rules to the Virginia Code Commission, and the rules will go into effect if approved by the Virginia legislature.  Chief Justice Cynthia D. Kinser has asked that the legislature pass the rules on an up or down vote rather than tinkering rule by rule.  The rules are expected to be before the General Assembly in the 2012 session.

MARYLAND: Insurance Companies Must Disclose Policy Limits.

On October 1, 2011 a new Maryland law went into effect that requires insurance companies to provide the details of automobile policy limits of coverage under certain circumstances.  The new law, codified in Maryland Code Annotated, Court’s and Judicial Proceedings Article, Sections 10-1101 thru 10-1105, require that an insurance company disclose the policy limits within thirty (30) days after a written request has been filed by the injured party in those situation in which the claim involves a death or injuries that result in at least $12,500.00 in bills or loss wages cumulatively.  This law requires that the requesting person  provide a substantial amount of information including the date of the accident, a copy of any police report that may have been generated, and all lost wage and medical documentation. 

Federal Removal on Diversity Jurisdiction: Resident Defendants

When a plaintiff domiciled in one state files a lawsuit in state court against a defendant domiciled in a different state, the defendant’s lawyer can generally “remove” the case to federal court (pursuant to 28 U.S.C. §§ 1441, 1332 & 1446) if the amount in controversy exceeds $75,000.  The federal courts’ jurisdiction over such cases is called “diversity jurisdiction.”  Removal to federal court can sometimes be in the interest of the defendant for various reasons.  However, the federal courts recognize an important limitation on defendants’ ability to remove cases to federal court based on “diversity jurisdiction” of the federal courts.  That limitation is that a state court lawsuit “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”  Therefore, a defendant in a Maryland state court case cannot remove the case to the federal court if any defendant is domiciled in Maryland.  As an illustration, if Bob Badbreak of Pennsylvania sues Ned Negligent of Virginia in the Circuit Court for Baltimore City, Maryland for $500,000, Ned can remove the case to the United States District Court for the District of Maryland.  However, were Ned to be domiciled in Maryland rather than in Virginia, Ned could not remove the case to federal court.

Adjusters should also keep in mind that the deadline for a defendant’s attorney to file the “removal” documents necessary to remove a case to federal court is 30 days from the date on which the defendant receives, through service or otherwise, a copy of the initial pleading setting forth the claims on which an action is based (pursuant to 28 U.S.C. § 1446) .  This short time frame is another reason why adjusters should be very careful to get new lawsuits into the hands of defense counsel quickly, even in situations in which the insured may not have been served yet.