VIRGINIA: Knowledge of Inclement Weather Not Necessarily Constructive Notice of a Dangerous Wet Floor

In the recent memorandum opinion in the United States District Court case of Logan v. Boddie-Noell Enters. Inc., No. 4:11cv00008, (W.D. Va. Jan. 18, 2012), the Court held that inclement weather conditions did not put a restaurant owner on constructive notice of a dangerous condition and did not provide a sufficient basis for the Plaintiff to defeat the Defendant’s motion for summary judgment.  The Court granted the Defendant’s motion for summary judgment based on lack of primary negligence and also based on the Plaintiff’s contributory negligence as a matter of law.

In this premises liability case, the Plaintiff slipped on water at a Hardee’s restaurant.  The water had been tracked in by customers on a very snowy morning.  The Plaintiff, well aware of the snow, failed to examine the floor of the restaurant before stepping onto a wet spot, slipped, broke her ankle, and sued.  The Defendant moved for summary judgment, and Judge Kiser granted that motion.  The Judge reasoned that, to defeat the Defendant’s motion, the Plaintiff must be able to show that the Defendant store owner “had actual or constructive notice of the presence of” an unreasonably dangerous condition which caused the Plaintiff to fall.  Logan at 14.  Judge Kiser reasoned that the “guiding factor in determining whether the owner had constructive notice is the length of time that the condition existed.”  Id. (citing Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 184 (1990).  Interpreting Ashby v. Faison & Associates, Judge Kiser determined that “mere notice of weather conditions that could foreseeably cause the unsafe condition is insufficient to establish constructive notice of the unsafe condition itself.”  247 Va. 166, 170-171 (1994).  The Plaintiff had no other sufficient evidence of notice, and therefore summary judgment was appropriate.  Judge Kiser also concluded that the Plaintiff was contributory negligent in failing to “look out for water deposited by other customers,” despite being “aware of the inclement weather.”  Logan at 21.  In so ruling, the Judge acknowledged that the Virginia Supreme Court employs a “totality of the circumstances” test in determining whether such a condition is open and obvious dangerous condition, but the Judge concluded that the water was an open and obvious dangerous condition in the context of the facts of the case.  

VIRGINIA: Virginia Code § 8.01-417.C - Requiring Disclosure of Insurance Limits

Virginia Code § 8.01-417.C. requires a liability insurer to reveal its liability limits even before suit is filed in some circumstances.  Specifically, where the medical bills and wage losses equal or exceed $12,500 and the claimant provides necessary information the liability insurer must disclose the limits of liability.  That statute provides:

C. After he gives written notice that he represents an injured person, an attorney, or an individual injured in a motor vehicle accident if he is not represented by counsel, may, prior to the filing of a civil action for personal injuries sustained as a result of a motor vehicle accident, request in writing that the insurer disclose the limits of liability of any motor vehicle liability or any personal injury liability insurance policy that may be applicable to the claim. The requesting party shall provide the insurer with the date of the motor vehicle accident, the name and last known address of the alleged tortfeasor, a copy of the accident report, if any, and the claim number, if available. The requesting party shall also submit to the insurer the injured person's medical records, medical bills, and wage-loss documentation, if applicable, pertaining to the claimed injury. If the total of all such medical bills and wage losses equals or exceeds $ 12,500, the insurer shall respond in writing within 30 days of receipt of the request and shall disclose the limits of liability at the time of the accident of all such policies, regardless of whether the insurer contests the applicability of the policy to the injured person's claim. Disclosure of the policy limits under this section shall not constitute an admission that the alleged injury or damage is subject to the policy. Information concerning the insurance policy is not by reason of disclosure pursuant to this subsection admissible as evidence at trial.

DC: Injured Party's Time Restriction After a Worker's Comp Award

D.C. Code Section 32-1535 addresses Worker’s Compensation liens arising from injuries caused by a third-party.  Paragraphs (a) and (b) of that section state that:

“(a) If, on account of a disability or death for which compensation is payable under this chapter, the person entitled to such compensation determines that some person other than those enumerated in Section 32-1504(b) is liable for damages, he need not elect whether to receive such compensation or to recover damages against such person.

(b) Acceptance of such compensation under an award in a compensation order filed with the Mayor shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within 6 months after such award.”

Section 32-1501: Definitions, provides the following additional information:

 “(8) ‘Disability’ means physical or mental incapacity because of injury which results in the loss of wages.” 

...

“(12) ’Injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of third persons directed against an employee because of his employment.”

The court in Wash. Post v. D.C. Dep't of Empl. Servs., 853 A.2d 704, 706-707 (D.C. 2004) stated that “a claimant is disabled when she suffers a compensable injury, arising out of and in the course of employment, and suffers a resulting wage loss.”  While injury is a medical condition, disability is an economic condition.   The case law does not indicate if there must be an official “finding” of disability, or simply an award that includes compensation for wage loss.

Consequently, a disabled party's action against the tortfeasor may be barred by this "secondary" statute of limitations if the action is brought more than six months from the date of a worker's compensation award.  See Biratu v. BT Vermont Ave., LLC, 962 A.2d 261 (D.C. App. 2008).  After that six month period, only the employer retains the right to bring an action against the tortfeasor.  In either case, the three year DC statute of limitations for tort actions will still apply to the underlying cause of action, including to the statutorily assigned interest held by the employer. 

MARYLAND: Mandatory Minimum Insurance Change

More than a year ago Maryland’s minimum motor vehicle liability insurance limits for bodily injury or death increased to $30,000 per person and $60,000 per accident.  Maryland Transportation Code § 17-103 was amended, effective January 1, 2011, to require these higher limits for all motor vehicle liability insurance policies issued, delivered, or renewed in the State on or after January 1, 2011.  § 17-103 now provides:

§ 17-103. Form and minimum benefits of security; annual assessment

   (a) Required form; annual assessment. --

   (1) Except as provided in paragraph (2) of this subsection, the form of security required under this subtitle is a vehicle liability insurance policy written by an insurer authorized to write these policies in this State.

   (2) The Administration may accept another form of security in place of a vehicle liability insurance policy if it finds that the other form of security adequately provides the benefits required by subsection (b) of this section.

   (3) The Administration shall, by regulation, assess each self-insurer an annual sum which may not exceed $ 750, and which shall be used for actuarial studies and audits to determine financial solvency.

(b) Required minimum benefits. -- The security required under this subtitle shall provide for at least:

   (1) The payment of claims for bodily injury or death arising from an accident of up to $ 30,000 for any one person and up to $ 60,000 for any two or more persons, in addition to interest and costs;

   (2) The payment of claims for property of others damaged or destroyed in an accident of up to $ 15,000, in addition to interest and costs;

   (3) Unless waived, the benefits described under § 19-505 of the Insurance Article as to basic required primary coverage;

   (4) The benefits required under § 19-509 of the Insurance Article as to required additional coverage; and

   (5) For vehicles subject to the provisions of § 25-111.1 of this article, the security requirements adopted under 49 C.F.R., Part 387.