Car Accident Lawyer

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This is the Form to request a Virginia Crash Report through the Virginia Department of Motor Vehicles.

When filling out the Virginia DMV Information Request I like to include as much information on the form as possible to assist the Virginia DMV in their search for the correct crash records.

If you have been in an auto accident you should call me for a free consultation. (434) 660-9701.

#caraccidentlawyer #lynchburgva

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

 

 

The following is a Virginia Underinsured Motorist Policy case. This case occured when two ATV's collieded. If you have been injured in a car accident you should call be at (434) 660-9701

On July 28, 2012, Porter was seriously injured in an accident involving two all-terrain vehicles ("ATVs"). The Kawasaki four-wheeled ATV on which Porter was riding as a passenger was owned and operated by Jacob Cecil Buck. The second ATV was operated by Patrick Thomason. The accident occurred while the ATVs were being operated on a public roadway in Franklin County, Virginia. As a result of the accident, Porter sustained a catastrophic brain injury, causing her to incur over $590,000.00 in medical expenses. She filed a personal injury action against Buck and Thomason in the Circuit Court of Franklin County, which remains pending.

At the time of the accident, Buck's ATV was insured under a liability policy issued by Foremost Insurance Company. Buck's policy provided $25,000.00 in bodily injury coverage applicable to his operation and use of the ATV. Because Porter's medical expenses exceed the liability coverage provided under Buck's policy, Porter sought payment from Peninsula based on the uninsured/underinsured motorist coverage ("UM/UIM coverage") provided in an endorsement ("the Endorsement") to a commercial automobile insurance policy issued to her father, Steve L. Porter ("the Policy").

The Endorsement at issue provides as follows:

"We" will pay in accordance with the Virginia Uninsured Motorists Law, all sums the "insured" is legally entitled to recover as damages from the owner or operator of an "uninsured motor vehicle."
Endorsement, Docket No. 1–1 at 39.

Part D of the Endorsement defines who is insured under the Endorsement. Part D provides as follows:

Who Is Insured

1. "You" or any "family member"

2. Anyone else "occupying" a "covered auto"

3. Anyone for damages he or she is entitled to recover because of "bodily injury" to which this coverage applies, sustained by another "insured" under 1 or 2 above.
Id.

The Endorsement defines the term "uninsured motor vehicle" to include "a motor vehicle ... [w]hich is an ‘underinsured motor vehicle.’ " Endorsement 1, Docket No. 1–1 at 38. The term "underinsured vehicle" is defined as follows:

"Underinsured motor vehicle" means a motor vehicle, when, and to the extent that, the total amount of "bodily injury" and "property damage" coverage applicable to the operation or use of the motor vehicle and "available for payment" for such "bodily injury" or "property damage[,"] including all bonds or deposits of money or securities made pursuant to Article 15 (Section 46.2–435 et seq) of Chapter 3 of Title 46.2 of the
[137 F.Supp.3d 893]

Code of Virginia, is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the motor vehicle.
Id. The term "motor vehicle" is not defined in the Endorsement.

Peninsula denied Porter's claim for UM/UIM coverage. To resolve the coverage dispute, Porter filed a complaint in the Circuit Court of Franklin County, seeking a declaratory judgment that the UM/UIM coverage provided in the Endorsement is applicable to the injuries she sustained in the ATV accident.

Peninsula removed the action to this court on the basis of diversity jurisdiction, and then moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. In seeking judgment on the pleadings, Peninsula argued that an ATV is not a "motor vehicle" and, thus, that Buck's ATV is not an "uninsured motor vehicle" within the terms of the Endorsement. See Peninsula's Reply Br., Docket No. 23 at 2 (emphasizing that the "single, determinative question that the Motion[ ] asks the Court to decide" is whether "the Buck ATV [is] a motor vehicle, particularly as that term is used in the Insurance Contract's UM/UIM endorsement").

On February 24, 2015, the court denied Peninsula's motion for judgment on the pleadings. See Porter v. Buck, No. 7:14CV00176, 2015 WL 788881, 2015 U.S. Dist. LEXIS 21815 (W.D.Va. Feb. 24, 2015). In so doing, the court rejected Peninsula's argument that the term "motor vehicle" must be considered in conjunction with the term "auto," which is defined in another section of the Policy to exclude vehicles that are not designed principally for use on public roads. The court emphasized that the Endorsement specifically states that it "CHANGES THE POLICY, " and that it includes words or phrases that have special meaning for purposes of the Endorsement. The court noted that the coverage provided under the Endorsement is not limited to damages resulting from the operation of an uninsured or underinsured "auto," and that Peninsula instead used the broader term "motor vehicle."

The court also found unpersuasive Peninsula's reliance on the Supreme Court of Virginia's decision in State Farm Mutual Automobile Insurance Co. v. Gandy, 238 Va. 257, 383 S.E.2d 717 (1989), in which the Supreme Court held that expenses for treatment of bodily injuries sustained by an insured who was struck by a forklift were validly excluded from coverage under the medical payments provision of an insurance policy. In reaching its decision, the Supreme Court assumed, without deciding, that the language of inclusion in the policy's medical payments provision, standing alone, "arguably afforded coverage because a forklift qualifies within the definition of ‘motor vehicle,’ and the insured sustained ‘bodily injury ... caused by accident ... through being struck by [a motor vehicle].’ " Gandy, 383 S.E.2d at 718. However, the policy's medical payments provisions included an exclusion, which made them inapplicable to bodily injuries sustained by an insured "through being struck by ... a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads." Id. at 717. Under the facts presented, the Supreme Court concluded that "the forklift, which struck the insured on private property, was ‘equipment designed for use principally off public roads,’ " and, thus, that coverage was precluded by the exclusion. Id. at 717–18. Unlike the policy provisions in Gandy, the Endorsement at issue in this case contains no similar exclusion precluding coverage for injuries or damages arising from the operation of a vehicle designed for use principally off public roads. Accordingly, the court concluded that Gandy did not compel the result urged by Peninsula.

Finally, relying on the Supreme Court of Virginia's decision in Hill v. State Farm Mutual Automobile Insurance Co., 237 Va. 148, 375 S.E.2d 727 (1989), the court rejected Peninsula's argument that the court should look to various Virginia statutory provisions to determine whether an ATV is a "motor vehicle" for purposes of the Endorsement. In Hill, the Supreme Court considered "whether a ‘moped’ [was] a ‘motor vehicle’ within the terms of the uninsured motorist coverage in an automobile liability insurance policy." Id. at 728. In refusing to rely on various statutory provisions, which excluded mopeds from the definition of the term "motor vehicle" and from the requirements of licensure and registration, the Supreme Court emphasized that "the policy contains no indication to an insured that cross-reference must be made to provisions scattered throughout the Code of Virginia in order to determine the meaning of the seemingly unambiguous term ‘motor vehicle.’ " Id. at 729. Rather than relying on such statutory provisions, the Supreme Court referred to a dictionary that defined the term "motor vehicle" as " ‘a self-propelled wheeled conveyance that does not run on rails.’ " Id. (quoting The American Heritage Dictionary 817 (2d ed.1982)). Given this definition, the Supreme Court found that there was "no clear indication to a careful reader of the policy that mopeds [were] intended to be excluded from coverage," and that any ambiguity had to be construed against the insurer. Id. at 729–30. Applying these principles in the instant case, the court concluded that an ATV plainly qualifies as a "motor vehicle" under the definition cited by the Supreme Court, and that such vehicles are not otherwise excluded from coverage in a clear and unambiguous manner. Since any doubt concerning the meaning of disputed policy language must be resolved against the insurer under Virginia law, the court held "that the term ‘motor vehicle,’ as used in the Endorsement, includes ATVs." Porter, 2015 WL 788881, at *5, 2015 U.S. Dist. LEXIS 21815, at *14.

Peninsula has now moved for reconsideration of the court's decision to deny its motion for judgment on the pleadings. The parties have also filed cross-motions for summary judgment. The motions have been fully briefed and argued and are ripe for decision.

Standards of Review

The resolution of a motion for reconsideration is committed to the discretion of the district court. Am. Canoe Ass'n v. Murphy Farms Inc., 326 F.3d 505, 514–15 (4th Cir.2003). "Motions for reconsideration of interlocutory orders are not subject to the strict standards applicable to motions for reconsideration of a final judgment." Id. at 514. Courts have observed that reconsideration of interlocutory orders is appropriate where "the [c]ourt has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the [c]ourt by the parties, or has made an error not of reasoning but of apprehension." Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). Reconsideration may also be appropriate where there has been an intervening change or development in the applicable law. Am. Canoe Ass'n, 326 F.3d at 515.

A motion for summary judgment is properly granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether to grant a motion for summary judgment, the court must view the facts in the record in the light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Discussion

I. Motion for Reconsideration

The court will first address Peninsula's motion for reconsideration of the decision to deny its motion for judgment as a matter of law. Peninsula argues that reconsideration is appropriate in light of an intervening decision by United States Magistrate Judge Tommy E. Miller in Montgomery v. Progressive Advanced Insurance Co., No 2:14CV00231, 2015 WL 1011524, 2015 U.S. Dist. LEXIS 27820 (E.D.Va. Mar. 6, 2015). Although Judge Miller ultimately found that a side-by-side ATV was an uninsured or underinsured motor vehicle for purposes of a motor vehicle liability policy, and therefore found that the insured was entitled to UM/UIM coverage, Peninsula contends that Judge Miller's decision provides "important clarification regarding [this court's] analysis of whether the Buck ATV can be construed as a motor vehicle for purposes of UIM insurance." Br. in Supp. of Mot. for Reconsideration, Docket No. 31 at 5. Having reviewed the applicable policy provisions in Montgomery, the court finds Peninsula's argument unpersuasive. As explained below, those provisions are clearly distinguishable from the policy provisions at issue in this case. Accordingly, even if an unpublished decision from another district could provide a valid basis for reconsideration, Peninsula is not entitled to relief.

In Montgomery, the plaintiff, Amanda Montgomery, was injured in an out-of-state accident involving a 2007 Yamaha Rhino owned and operated by her brother. The Rhino was described as "a four-wheel vehicle with two bucket seats in the front, a bench seat in the back, an open top, open sides, and roll bars," which had been modified to include rearview lights, rearview mirrors, and seatbelts. Montgomery, 2015 WL 1011524, at *1, 2015 U.S. Dist. LEXIS 27820, at *3. Following his purchase of the vehicle, Montgomery's brother registered the Rhino with the Arizona Division of Motor Vehicles, and obtained license plates and insurance for the vehicle. The record revealed that Montgomery's brother used the Rhino primarily for driving on public roads. At the time of the accident, however, Montgomery's brother was driving the Rhino off-road at a park in Arizona, where there were no improved, paved, or maintained roads.

Following the accident, Montgomery filed a declaratory judgment action against Progressive Advanced Insurance Company ("Progressive"), seeking a declaration that the Rhino was an uninsured or underinsured motor vehicle as defined in a motor vehicle liability policy issued to her by Progressive (the "Progressive policy"). The Progressive policy's uninsured motorist coverage was contained in Part C of the policy. See No. 2:14CV231, Docket No. 11–2 at 19. The insuring agreement provided that Progressive would pay, in accordance with Virginia Code § 38.2–2206, "damages which an ‘insured’ ... is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ or an ‘underinsured motor vehicle’ because of ... ‘Bodily injury’ sustained by an ‘insured’ and caused by an accident...." Id.

The Progressive policy specifically defined an "uninsured motor vehicle" as "a land motor vehicle or trailer of any type ... [t]o which no liability, bond, policy, deposit or money or security applies at the time of the accident in at least the minimum limits required by Va.Code Ann. Section 46.2–472." Id. at 20. The Progressive policy defined an "underinsured motor vehicle" as "a land motor vehicle or trailer of any type for which the sum of ... [t]he limits of liability under all liability bonds or policies" is less than the uninsured motorists coverage under the Progressive policy. Id. at 19.

Neither party disputed that the Rhino was both uninsured and underinsured for purposes of the Progressive policy. Instead, they disputed "whether the Rhino is a motor vehicle, defined in the [p]olicy as ‘a land motor vehicle or trailer of any type.’ " Montgomery, 2015 WL 1011524, at *5, 2015 U.S. Dist. LEXIS 27820, at *13. In resolving this issue, Judge Miller declined to rely on the various Virginia statutory provisions regarding ATVs. Instead, as this court did in its previous decision, Judge Miller utilized the dictionary definition of the term "motor vehicle" referenced by the Supreme Court of Virginia in Hill v. State Farm Mutual Automobile Insurance Co., 237 Va. 148, 375 S.E.2d 727 (1989). Applying that definition, Judge Miller held that the Rhino was a land motor vehicle. See Montgomery, 2015 WL 1011524, at *6, 2015 U.S. Dist. LEXIS 27820, at *16 (emphasizing that "[t]he Rhino is most certainly ‘a self-propelled wheeled conveyance that does not run on rails' ") (quoting Hill, 375 S.E.2d at 729 ).

Unlike the Endorsement at issue in the instant case, the Progressive policy's definitions of "uninsured motor vehicle" and "underinsured motor vehicle" were qualified by an exclusion set forth in the same part of the policy. That exclusion provided as follows:

In addition, neither ‘uninsured motor vehicle’ nor ‘underinsured motor vehicle’ includes:

1. A farm type tractor or other equipment designed for use principally off public roads while not on public roads; or

2. Any vehicle:

a. Operated on rails or crawler treads; or

b. While located for use as a residence or premises.
Montgomery, No. 2:14CV00231, Docket No. 11–2 at 20, 2015 WL 1011524. Accordingly, Judge Miller proceeded to determine whether this language of exclusion applied to the Rhino such that the Rhino was not included in the Progressive policy's definition of an uninsured or underinsured motor vehicle.

After summarizing several decisions involving similar exclusions, including the Supreme Court of Virginia's decision in State Farm Mutual Automobile Insurance Co. v. Gandy, 238 Va. 257, 383 S.E.2d 717 (1989), which involved a forklift, and its decision in Moore v. State Farm Mutual Automobile Insurance Co., 248 Va. 432, 448 S.E.2d 611 (1994), which involved a family-class stock car, Judge Miller determined that the Rhino did not clearly fall within the exclusion. Although the owner's manual for the Rhino expressly indicated that it was designed for off-road use, Judge Miller observed that, in reality, "the vehicle was equipped and licensed to legally operate both on public highways and off-road, and was operated both on and off public roads," and that it was more similar to a moped or stock car than to a forklift. Montgomery, 2015 WL 1011524, at *8, 2015 U.S. Dist. LEXIS 27820, at *21. "Construing the exclusionary language in the policy against [Progressive], and applying the normal and customary use of the phrase ‘farm type tractor or other equipment designed for use principally off public roads,’ " Judge Miller found that the Rhino did not clearly fall within the exclusion. Id. Accordingly, he held that the Rhino was an "uninsured or underinsured motor vehicle" as defined in the Progressive policy, and granted summary judgment in favor of the insured. Id. at *8, 2015 U.S. Dist. LEXIS 27820 at *21–22.

In seeking reconsideration based on Montgomery, Peninsula argues that Buck's ATV "differs notably" from the Rhino on which Montgomery was riding as a passenger, and that "there is no possible question here of the Buck ATV's purely off-road character." Docket No. 31 at 11. Unlike the Progressive policy, however, the Endorsement at issue in this case does not specifically exclude vehicles designed for use principally off public roads, or any other particular type of land motor vehicle, from the definition of "uninsured motor vehicle" or "underinsured motor vehicle."

While Peninsula recognizes this distinction in its brief in support of the motion for reconsideration, it nonetheless argues that the Peninsula Policy essentially "does the very same thing, though it goes about it in a slightly different way." Docket No. 31 at 12. Specifically, Peninsula argues, as it did previously, that the term "motor vehicle," as used in the Endorsement, should be considered in conjunction with the term "auto," which is defined in another section of the Policy to exclude vehicles that are not designed principally for use on public roads. The problem with this argument is that the Endorsement states in bold, capital letters that it "CHANGES THE POLICY, " and that it includes words or phrases that have special meaning for purposes of the Endorsement. Docket No. 1–1 at 38. The coverage provided under the Endorsement is not limited to damages resulting from the operation of an uninsured "auto." Instead, Peninsula used the broader term "motor vehicle." See USAA Cas. Ins. Co. v. Yaconiello, 226 Va. 423, 309 S.E.2d 324, 325 (1983) (recognizing that the term "motor vehicle" has a broader meaning than the word "automobile"); see also Equitable Gen. Ins. Co. v. Williams, 620 S.W.2d 608, 610 (Tex.Ct.App.1981) ("The term motor vehicle has a much broader meaning than the word automobile."). Moreover, Peninsula elected not to define the term "motor vehicle" in a particular manner or to otherwise limit its scope to certain types of land motor vehicles.

In light of these distinctions between the Endorsement and Part C of the Progressive policy, the court concludes that Judge Miller's decision in Montgomery does not warrant reconsideration of the court's previous decision to deny Peninsula's motion for judgment as a matter of law. Accordingly, Peninsula's motion for reconsideration will be denied.

II. Motions for Summary Judgment

In moving for summary judgment, Peninsula argues that the court's previous decision left undecided one issue that was raised in Peninsula's initial brief in support of its motion for judgment on the pleadings. Specifically, Peninsula contends that certain language contained in the Policy's Renewal Declaration and Business Auto Coverage Form limits the coverage provided by the Endorsement to accidents involving "autos."

Item Two of the Renewal Declaration, described as the "Schedule of Coverages and Covered Autos," includes a four-column table listing the types of coverage available under the Policy, covered auto symbols, the policy limit for each type of coverage, and the premium for each type of coverage. Renewal Declaration, Docket No. 1–1 at 15. The following paragraph is located above the table:

This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those autos shown as covered autos. Autos are shown as covered autos for a particular coverage by the entry of one or more symbols from ITEM THREE next to the name of the coverage.
Id. A "charge" is shown in the premium column for the following types of coverage: Liability, Medical Expense and Income Loss Benefits, Uninsured Motorists, Physical Damage: Comprehensive Coverage, and Physical Damage: Collision Coverage. Id.

The Business Auto Coverage Form includes a section on Covered Autos. It states that "Item Two of the Declarations shows the ‘autos' that are covered ‘autos' for each of your coverages," and that "[t]he symbols entered next to a coverage on the Declarations designate the only ‘autos' that are covered ‘autos.’ " Business Auto Coverage Form, Docket No. 1–1 at 23. For "Uninsured Motorists" coverage, Item Two lists the symbol "6" in the column for Covered Auto Symbols. Docket No. 1–1 at 15. According to the Business Auto Coverage Form, the symbol "6" represents "[o]only those ‘autos' you own that because of the law of the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage."1 Docket No. 1–1 at 23.

Section V of the Business Auto Coverage Form contains a number of definitions. The term "auto" is defined as a "land motor vehicle, ‘trailer,’ or semitrailer designed for travel on public roads but does not include ‘mobile equipment.’ " Docket No. 1–1 at 31. The term "mobile equipment" is defined to include "bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads." Docket No. 1–1 at 33.

Relying on the foregoing provisions of the Renewal Declaration and the Business Auto Coverage Form, Peninsula argues that the UM/UIM coverage provided by the Endorsement is limited to accidents involving "autos," and that Buck's ATV is not an "auto," since it is not a vehicle designed for travel on public roads. Peninsula emphasizes that the ATV was not registered or licensed by the Virginia Department of Motor Vehicles, and that its owner's manual specifically indicates that the ATV is designed for off-road use only and should not be driven on public roads.

In resolving this issue, the court must consider the established principles of Virginia law regarding the interpretation of insurance policies. When interpreting such agreements, courts determine the parties' intent from the words used in the policy. Va. Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 677 S.E.2d 299, 302 (2009). The policy's provisions "must be considered and construed together, and any internal conflicts between provisions must be harmonized, if reasonably possible, to effectuate the parties' intent." Id. When a disputed policy term is unambiguous, the court must apply its plain meaning as written. Id. "However, if disputed policy language is ambiguous and can be understood to have more than one meaning, [the court must] construe the language in favor of coverage and against the insurer." Id. Accordingly, "when an insurer seeks to limit coverage under a policy, the insurer must use language that is reasonable, clear, and unambiguous." Id.; see also Dooley v. Hartford Accident & Indem. Co., 716 F.3d 131, 135 (4th Cir.2013) (noting that the burden is "rightfully place [d] ... in the insurer, the customary drafter of the policy, to articulate clearly both the coverage afforded and any exclusions from that coverage").

Applying these established principles, the court remains convinced that the insurance policy does not clearly and unambiguously limit coverage under the Endorsement to accidents involving "autos." Although Item Two of the Renewal Declaration indicates that the coverages provided under the policy "apply only to those autos shown as covered autos," the Endorsement includes a statement at the very top of the page which states, in bold, capital letters that "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. " Docket No. 1–1 at 38. The Endorsement then defines an insured as "You" or any "family member," and it provides no indication that its coverage is limited to accidents involving the operation of an uninsured or underinsured "auto." Id. at 39. Instead, the Endorsement states that Peninsula will pay "all sums the [insured or any family member] is legally entitled to recover as damages from the owner or operator of an ‘uninsured motor vehicle. ’ " Id. at 38 (emphasis added). As noted above, the Endorsement does not define the term "motor vehicle," nor does it include any language which would clearly exclude ATVs from the definition of "uninsured motor vehicle" or "underinsured motor vehicle."

Moreover, Peninsula has conceded that the UM/UIM coverage provided under the policy is not limited to the "covered autos" described in the Business Auto Coverage Form, even though Item Two of the Renewal Declaration includes language to that effect. Although Peninsula previously asserted as a defense to this action that the Endorsement's UM/UIM coverage is limited to "covered autos," and that the Buck ATV is not a "covered auto[ ]" since it is not owned by Steve Porter, Peninsula has affirmatively withdrawn that defense. See Br. in Supp. of Mot. for Summ. J., Docket No. 29 at 4, n. 6 ("Peninsula no longer relies as a defense upon whether Porter could be said to have occupied a covered ‘auto,’ and it stipulates to a withdrawal of that particular defense...."). When the court inquired about this issue during the hearing on the pending motions, Peninsula acknowledged that the Endorsement, itself, does not limit coverage to accidents involving "covered autos." The same, of course, can be said about accidents involving "autos," as that term is defined in Section V of the Business Coverage Form. If Peninsula had intended to limit the coverage provided in the Endorsement to accidents involving uninsured or underinsured "autos," it could have used that term in the Endorsement. Instead, Peninsula elected to use the2 broader term "motor vehicle," without defining the term in a particular manner or otherwise limiting its application.

Even if the terms of the Endorsement were considered ambiguous with regard to whether its coverage is implicated only by accidents involving uninsured or underinsured "autos," the result is the same. As explained above and in the court's previous opinion, any ambiguous policy language must be construed "in favor of coverage and against the insurer."3 Williams, 677 S.E.2d at 302 ; see also Seals v. Erie Ins. Exch., 277 Va. 558, 674 S.E.2d 860, 862 (2009) ("Where two constructions are equally possible, that most favorable to the insured will be adopted. Language in a policy purporting to exclude certain events from coverage will be construed most strongly against the insurer.") (internal citation omitted).

For the reasons stated, the court concludes that the coverage afforded by the Endorsement is not limited to accidents involving "autos." The court also remains convinced that the term "motor vehicle," as used in the Endorsement, includes ATVs. Because it is undisputed that Porter is an "insured" for purposes of the Endorsement, and that Buck's ATV is "underinsured," the court concludes that the UM/UIM coverage provided in the Endorsement is applicable to the injuries Porter sustained in the ATV accident.

Conclusion

For the reasons stated, the court will grant summary judgment in favor of Porter. Peninsula's motions for reconsideration and for summary judgment will be denied. The Clerk is directed to send copies of this memorandum opinion and the accompanying order to all counsel of record.
Porter v. Buck, 137 F.Supp.3d 890 (W.D. Va. 2015)

#caraccidentlawyer #lynchburgva

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

 

 

#caraccidentlawyer #lynchburgva

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

 

The following case is Virginia case detailing what should be shown at trial to prove auto accident causation. The Jury awarded the Plaintiff $7,000,000.0o. If you have been injured in an auto accident you should call me at (434) 660-9701 for a free consultation.

Following trial in the Prince William County Circuit Court (the "trial court"), a jury found Sharon Furr ("appellant") liable for negligence in connection with a 2014 motor vehicle accident between appellant's car and another car in which the plaintiff, Tamara Al-Saray ("appellee") was a passenger. Appellant raises thirteen assignments of error on appeal, the first of which this Court finds dispositive of the entire case. As her primary argument, appellant asserts that the trial court erred in denying her motion to strike because appellee's evidence was insufficient to establish a prima facie case of negligence. Specifically, she argues that appellee did not present evidence establishing that appellant's breach of duty was a proximate cause of the car crash. For the reasons below, this Court agrees and finds that the insufficient evidence of causation warrants reversal of the trial court's judgment.

I. BACKGROUND

On November 10, 2014, at approximately 4:30 p.m., appellant's vehicle crashed into another vehicle driven by Janaia Spurlock ("Spurlock") at the intersection of Wellington Road and Market Place Avenue in Prince William County, Virginia. Wellington Road is a four-lane divided highway with two lanes of traffic in each direction-east and west-and the road slopes slightly uphill as one approaches the intersection with Market Place Avenue from the west. At the time of the accident, the traffic signal at the intersection was a solid green light for vehicles traveling east and west along Wellington Road.

Prior to the collision, appellant was traveling westbound in the right-hand thru lane on Wellington Road at approximately 45 miles per hour, the posted speed limit. Spurlock was traveling eastbound on Wellington Road and attempted to enter the shopping center on Market Place Avenue by making a left-hand turn across appellant's westbound lane of travel. The day was bright and the weather clear. As appellant approached the intersection she was looking straight ahead and had an unobstructed view of approximately 300 to 400 feet in front of her. Nevertheless, appellant claims she did not see anything in her path until she saw a "white blur" just before colliding with Spurlock's vehicle in the middle of the intersection.

When the two cars collided, the front of appellant's car struck the rear passenger-side door on the right-hand side of Spurlock's vehicle-where appellee was seated. Both Spurlock and appellee were 16 years old at the time of the accident. After impact, appellant's vehicle came to rest on the sidewalk just past the intersection, and Spurlock's car was facing east with its rear up against a light pole and its front in the intersection. Appellee sustained significant physical and neurological injuries as a result of the collision.

Nearly four years later, on March 29, 2018, appellee filed suit against both Spurlock and appellant, seeking compensatory damages for the injuries she sustained in the 2014 crash. Appellee alleged that both defendants were "jointly and severally" liable to her for their combined negligence. However, on October 8, 2021-only five days before trial commenced on October 13, 2021-the trial court granted appellee's motion to nonsuit Spurlock from the case and the trial court granted her motion to amend the case caption with appellant as the sole defendant.

Subsequently, appellee presented extensive evidence during trial to demonstrate that appellant needed to wear her reading glasses to see properly while driving and that she was not, by her own admission, wearing them on the day of accident. Appellee presented no evidence about Spurlock's actions leading up to the crash.

Pre-Trial Proceedings

During pre-trial discovery, appellant filed a motion for a Rule 4:10 neuropsychology exam of appellee to be conducted by Dr. Gary Kay. The trial court granted appellant's request on February 4, 2021, but included in the order a provision granting appellee's request to record the exam. Dr. Kay refused to comply with that provision and did not conduct the exam.

On March 2, 2021, appellant filed a motion for reconsideration in which she asked the trial court to order a second Rule 4:10 exam, this time by Dr. Jeffrey Wilken. The trial court granted appellant's request on March 29, 2021, and removed the mandatory recording provision from that second order. However, in an attempt to prevent any further issues, the trial court required appellant to confirm Dr. Wilken's review of the order and his willingness to abide by its terms. In particular, the trial court ordered appellee to "submit to an examination by Dr. Jeffrey A. Wilken," but made clear that no "substitute examiner" could conduct the exam unless appellant first received permission from the court or both parties mutually agreed to the alternate examiner. Dr. Wilken provided his written assent to those terms.

Both parties agreed that Dr. Wilken would conduct the exam on June 22, 2021. On that date, appellee arrived timely at the exam location with her attorney around 8:45 a.m. Dr. Wilken, however, was not present and instead sent an associate, Dr. Catherine Bergmann, who informed appellee that she would conduct the first part of the exam and Dr. Wilken would arrive at 11:30 a.m. to conduct the latter half of the examination. Based on this new information, appellee left the exam location after approximately thirty minutes and informed the trial court that Dr. Wilken had violated the court's order.

The parties cross-moved for sanctions, and the trial court granted sanctions in favor of appellee for Dr. Wilken's violation of the court's order that he be the one to conduct the examination. Pursuant to that determination, the trial court ruled that Dr. Wilken would not be allowed to testify as to why he had not conducted an examination. The court then ruled that it would not grant appellant's motion to exclude appellee's evidence of a traumatic brain injury and would not grant a continuance or issue a third order for a Rule 4:10 exam.

At a subsequent hearing, the trial court made several rulings regarding the admissibility of proffered testimony by appellant's expert witnesses. Regarding Dr. Falconer, the trial court prohibited testimony that appellee might have suffered from a "second-hit phenomenon" or that her brain injury could have been caused by a subsequent accident. Similarly, the trial court excluded testimony by Dr. Wilken that the delays in the presentation of appellee's symptoms might be consistent with a different cause, other than the 2014 wreck.

In making those admissibility determinations, the trial court relied on the expert disclosures appellant provided. Based on the language Dr. Falconer and Dr. Wilken used in their reports, the trial court concluded that their opinions were not made to a reasonable degree of medical probability and were thus too speculative for the jury to consider.

After the trial court entered the nonsuit order for Spurlock on October 8, 2021, it ruled that appellant could not offer any evidence that Spurlock had pled guilty to failing to yield in connection with the 2014 accident. Despite appellant's arguments to the contrary, the trial court ruled that any testimony about Spurlock's plea was inadmissible hearsay and there was no other basis for admission of such evidence. The court gave multiple reasons for this ruling, including that Spurlock was no longer a party opponent, the police officer who ticketed Spurlock in 2014 had no independent recollection of the accident or Spurlock's plea, Spurlock denied in her deposition to having been issued a ticket or pleading guilty, and all records of Spurlock's plea were sealed because she was a juvenile. Notwithstanding that ruling, appellant still announced her intention to subpoena Spurlock to testify at trial.

Trial Testimony and Proceedings

Trial commenced on October 13, 2021. Appellee introduced portions of appellant's deposition testimony at trial, as well as in-person testimony from several witnesses; but neither appellee, appellant, nor Spurlock testified in the trial court. In fact, the only other witness who was present at the scene of the accident-Greg Burke ("Burke")-did not see the moment appellant's and Spurlock's vehicles collided.

Burke testified that he had been driving westbound on Wellington Avenue in the right-hand thru lane at approximately 4:30 p.m. on November 10, 2014. When he reached the intersection at Market Place Avenue, he had a solid green traffic light and he moved into the right-hand turn lane so he could turn into the shopping center on his right. As he did so, he saw Spurlock's vehicle in the eastbound left-hand turn lane on Wellington Road. He described her as

having "slowed to a stop or was creeping at that point.... She was yielding to me." He did not see appellant's vehicle in the right thru lane behind him.

When Burke started making his right-hand turn, he saw that Spurlock's car "was at a hesitation or barely creeping at that point." Approximately four seconds after he started making that turn, Burke heard the crash of appellant's and Spurlock's vehicles colliding, but he did not see the moment of impact which had occurred behind him. He did not hear any horns honking or brakes screeching in those four seconds. During cross-examination by appellant's counsel, Burke confirmed that at the last time he saw Spurlock's vehicle prior to the crash "she had not yet entered the . . . left thru lane on westbound Wellington Road." He also affirmed that he "did not see whether Ms. Spurlock's vehicle or [appellant]'s vehicle entered the intersection first."

At the close of appellee's case-in-chief, appellant made a motion to strike the evidence on the grounds that it was insufficient to make out a prima facie case of negligence. The trial court denied that motion, along with appellant's motion to reconsider in which appellant drew attention to appellee's choice to call Burke-who saw neither the collision itself nor the manner in which Spurlock entered the intersection-rather than Spurlock herself. Appellant thus argued that, because Burke's testimony did not show that appellant "could have avoided the accident if she maintained a proper lookout," appellee had not presented evidence that would allow the jury to determine whether appellant's actions were a proximate cause of the accident.

Because appellee had "to show that [appellant] could have avoided the accident if she maintained a proper lookout," the complete absence of evidence about how Spurlock entered the intersection was critical to appellee's case. Appellant also made a renewed motion to strike, on the same grounds, at the close of all the evidence. The court denied that motion as well.

Prior to jury deliberations, appellant proposed two versions of Jury Instruction T, each of which included different portions of the statutory table of stopping distances in Code § 46.2-880. One version included the complete table in Code § 46.2-880, while the other version requested only the single horizontal row applicable to a speed of 45 miles per hour. The trial court declined to give either version and explained that existing case law required appellant to offer evidence establishing the reliability of each factor in the table as applied to appellant- including condition of the vehicle and roadway-before the contents of that table could be given to the jury. Appellant offered no such evidence.

During closing argument, appellee's counsel stated: "[Y]ou can't go 45 miles an hour into a sitting duck.... People get killed. A grandfather gets killed." A few moments later, speaking as if he were appellant, appellee's counsel said: "I drove into another car and I killed a man." Appellee never introduced any evidence that someone died as a result of the accident. A few moments after the second statement, but still during appellee's closing argument, appellant's counsel objected and moved for a mistrial. Appellant argued that appellee's statements were highly prejudicial and inappropriate, especially considering the complete lack of evidence that appellant had killed anyone. The trial court denied the motion for a mistrial on the sole basis that appellant had waived the objection by not making it contemporaneously with the offending statements.

The jury returned a verdict on October 21, 2021, finding appellant liable for negligence. It awarded appellee $7 million in damages.

Post-Trial Motions

At a post-trial hearing on December 3, 2021, appellant made a motion to set aside the verdict on the grounds that the evidence was insufficient as a matter of law to show that her negligence was a proximate cause of the accident. In particular, she asserted that the jury could not determine whether her conduct was a proximate cause of the accident without knowing when and how quickly or slowly Spurlock entered the intersection. The trial court denied appellant's motion, finding that it "comes down to one of sufficiency to the evidence; not one of a complete absence of evidence" and that the circumstantial evidence was sufficient for the jury to determine that appellant was a proximate cause of the accident.

Appellant also renewed her argument for a mistrial based on appellee's statements during closing arguments, but the trial court denied that motion again on the grounds that it had not been made at the time the words were spoken and thus appellant's objection was waived. The trial court then entered judgment "in the amount of $7 million with interest running as of the date of this order."

Appellant then filed a motion to reduce the amount of her appeal bond from the full amount of the judgment to her insurance liability limit of $500,000 dollars "in order to suspend the execution of the judgment in this case while it is on appeal." In support of that motion, appellant signed an affidavit stating that her only financial asset was the insurance policy. The trial court issued an amended final judgment on January 14, 2022, in which it denied appellant's request for lack of "good cause" shown and entered final judgment in favor of appellee for the full $7 million. This appeal followed.

II. ANALYSIS

Appellant raises thirteen assignments of error, grouped into several categories. First and foremost, appellant asserts the trial court erred in denying her motion to strike and subsequent motion to set aside the jury's verdict. She contends that appellee's failure to introduce any evidence of causation precluded appellee from establishing a prima facie case of negligence as a matter of law. As a result, she argues that the case should not have been presented to the jury and the jury's verdict in favor of appellee is contrary to the law because it is based on speculation.

This Court agrees with appellant's position and finds this initial issue dispositive. This case presents the relatively rare instance of there being multiple possible proximate causes of an accident but no evidence upon which a jury could base a finding on the issue of causation. Consequently, because "the doctrine of judicial restraint dictates that we decide cases 'on the best and narrowest grounds available,'" this Court declines to address the merits of appellant's remaining assignments of error. Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (quoting Commonwealth v. White, 293 Va. 411, 419 (2017)).

Standard of Review

"As a general rule, [this Court] will not set aside a [trial] court's judgment sustaining a jury verdict unless it is 'plainly wrong or without evidence to support it.'" N. Va. Kitchen, Bath &Basement, Inc. v. Ellis, 299 Va. 615, 622 (2021) (quoting Parson v. Miller, 296 Va. 509, 524 (2018)); see also Elliott v. Anderson, 208 Va. 753, 760 (1968) (quoting Garrison v. Burns, 178 Va. 1, 8 (1941)).

Where the trial court has denied a motion "to strike the plaintiff's evidence or to set aside a jury verdict, the standard of appellate review in Virginia requires this Court to consider whether the evidence presented, taken in the light most favorable to the plaintiff, was sufficient to support the jury verdict in favor of the plaintiff." Ellis, 299 Va. at 622 (quoting Parson, 296 Va. at 523-24). In doing so, this Court considers the legal elements of the offense de novo, but reviews for clear error whether the facts presented are sufficient to prove those elements. Linnon v. Commonwealth, 287 Va. 92, 98 (2014). Accordingly, a trial court does not err in denying a motion to strike when the plaintiff meets its burden of showing a prima facie case. Vay v. Commonwealth, 67 Va.App. 236, 249 (2017).

Establishing a Prima Facie Case of Negligence

"All negligence causes of action are based on allegations that a person having a duty of care to another person violated that duty of care through actions that were the proximate cause of injury to the other person." Steward ex rel. Steward v. Holland Fam. Props., LLC, 284 Va. 282, 286 (2012). Thus, to establish a prima facie case of negligence, a plaintiff must offer sufficient evidence as to all four legally distinct elements: "a legal duty on the part of the defendant, [a] breach of that duty, and a showing that such breach was the proximate cause of injury, resulting in damage to the plaintiff." Blue Ridge Serv. Corp. of Va. v. Saxon Shoes, Inc., 271 Va. 206, 218 (2006). The third element, causation, is crucial to the outcome of this appeal.

"The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred." RGR, LLC v. Settle, 288 Va. 260, 292 (2014) (quoting Ford Motor Co. v. Boomer, 285 Va. 141, 150 (2013)); see also Wells v. Whitaker, 207 Va. 616, 622 (1966) ("To impose liability upon one person for damages incurred by another, it must be shown that the negligent conduct was a necessary physical antecedent of the damages."). Factual causation, "often described as the 'but for' or Sine qua non rule," is a necessary "element of proximate cause" and provides that a defendant is not liable for a plaintiff's injury unless such harm would not have occurred "but for [defendant's] negligent act." Wells, 207 Va. at 622. As a result, the term "proximate cause" represents a "descriptive phrase for the limits the law has placed upon an actor's responsibility for his conduct." Id.

In the context of vehicular accident cases, the Supreme Court has repeatedly held that "[n]egligence cannot be presumed from the mere happening of an accident. The burden is on the plaintiff . . . to produce evidence of preponderating weight . . . that the defendant was guilty of negligence which was a proximate cause of the accident." Elliott, 208 Va. at 757 (quoting Weddle v. Draper, 204 Va. 319, 322 (1963)); Wells, 207 Va. at 622 ("Negligence and an accident, however, do not make a case. As between them there must be a causal connection." (quoting Hawkins v. Beecham, 168 Va. 553, 561 (1937))). To satisfy that burden, the plaintiff must "show why and how the accident happened, and if that is left to conjecture, guess or random judgment, he cannot recover." Blue Ridge, 271 Va. at 218 (quoting Weddle, 204 Va. at 322); see also Bridgeforth v. Gibbs, 207 Va. 127, 134 (1966) (finding the jury's verdict "improperly based upon conjecture and speculation" where plaintiff did not carry burden "of showing where, how and why the accident occurred").

Thus, although the issue of proximate cause is generally a question of fact to be resolved by the jury, "[t]he evidence tending to show causal connection must be sufficient to take the question out of the realm of mere conjecture, or speculation, and into the realm of legitimate inference, before a question of fact for submission to the jury has been made out." Virginian Ry. Co. v. Haley, 156 Va. 350, 381-82 (1931). "Not every inference that springs to mind is legally sufficient." Norfolk &W. Ry. Co. v. Wright, 217 Va. 515, 520 (1976). In the absence of sufficient evidence of causation, a prima facie case of negligence does not exist as a matter of law, despite the existence of evidence establishing that the defendant breached a duty owed to plaintiff. See, e.g., Blue Ridge, 271 Va. at 218-19 (holding that the trial court "abused its discretion when it denied" defendant's motion to strike plaintiff's evidence and submitted the case to the jury in the "absence of a prima facie case of negligence").

An example of the strict operation of this rule is the Supreme Court's holding in Cooper v. Whiting Oil Co., Inc., 226 Va. 491, 496 (1984). Despite finding that defendant was "negligent" in its actions after plaintiff provided notice of a leak in a gasoline tank on her property, the Court found that "there was no evidence that such negligence was a proximate cause of the damages to the Landowners' properties." Id. The Court explained that, because "[t]here was no evidence as to the amount of gasoline that leaked into the ground before" plaintiff's notification, "the jury could not determine what damages resulted from gasoline leaking from the tank after [defendant] negligently refilled it." Id. (emphases added). The Court thus affirmed the trial court's decision to grant defendant's motion to strike plaintiff's evidence. Id. at 497.

In accordance with that legal principle, the Supreme Court has consistently held that plaintiffs relying on circumstantial evidence to make out a prima facie case, like in the case at hand, must ensure that such evidence is "sufficient to show that the causation alleged is 'a probability rather than a mere possibility.'" Bussey v. E.S.C. Rests., Inc., 270 Va. 531, 536 (2005) (quoting S. States Coop. v. Doggett, 223 Va. 650, 657 (1982)). As particularly relevant to this case, "circumstantial evidence must show more than that the accident resulted from one of two causes, for one of which the defendant is responsible and for the other of which he is not." Cooper, 226 Va. at 496; Sneed v. Sneed, 219 Va. 15, 18 (1978); see also Vaughn v. Huf, 186 Va. 144, 153 (1947) (finding that, in the absence of necessary facts, no prima facie case of negligence had been shown where "the accident may have been attributable to one of several causes, for some of which the driver of the car was responsible and for some of which he was not responsible"). Otherwise, where the evidence does not provide a basis for differentiating between equally probable causes other than "conjecture, guess, or random judgment," the jury's verdict will be impermissibly based on an arbitrary choice not grounded in the evidence and thus contrary to the law. Town of West Point v. Evans, 224 Va. 625, 628 (1983); see also Elliott, 208 Va. at 757 (holding that inferences "must be based on facts, not on presumptions" (quoting Weddle, 204 Va. at 322)).

In applying that rule to the facts here, as discussed below, this Court finds that appellee failed to make out a prima facie case because the circumstantial evidence she presented did not establish that appellant, even if in breach of a duty owed, was a proximate cause of the accident.

Appellee's Evidence Insufficient to Establish Proximate Cause

Even assuming that appellee's evidence was sufficient to establish the first two elements of duty and breach, the purely circumstantial evidence was nevertheless insufficient to show that appellant was a proximate cause of the accident. Therefore, as a matter of law, appellee did not present a prima facie case of negligence and the trial court erred in denying appellant's motion to strike.

This Court readily acknowledges that there is sometimes a thin line dividing the cases in which evidence of causation is sufficient to establish a prima facie case, thus warranting resolution by a jury, and those in which it is not. See RGR, 288 Va. at 293 ("In resolving the question of proximate causation, '[e]ach case necessarily must be decided upon its own facts and circumstances.'" (alteration in original) (quoting Banks v. City of Richmond, 232 Va. 130, 135 (1986))). Indeed, the Supreme Court has a long history of addressing the distinctions between those two lines of cases. According to that precedent, the case at hand falls squarely into the second category because appellee presented no evidence that would permit a jury to resolve the question of proximate cause without resorting to speculation. As previously stated, although a jury may properly weigh evidence and assess witness credibility, it may not engage in speculation or make inferences that do not arise from the facts presented. See, e.g., Burton v. Commonwealth, 58 Va.App. 274, 283 (2011) (holding that the trier of fact "determine[s] what inferences are to be drawn from proved facts, provided the inferences are reasonably related to those facts" (quoting Beck v. Commonwealth, 2 Va.App. 170, 176 (1986))).

This point is aptly illustrated by the Supreme Court's ruling in Sykes v. Langley Cabs, Inc., 211 Va. 202 (1970), that the question of proximate cause was properly left in the hands of the jury because the answer depended upon which witness's testimony the jury found more credible. There, each witness's testimony about the key facts at issue directly contradicted one another, resulting in conflicting theories of proximate cause. Id. However, each version of events, if believed to the exclusion of the others, provided a complete explanation as to the cause of decedent's death. Id. Therefore, as the Court recognized, the jury's determination of proximate cause was based upon the direct evidence of the witness whose testimony it credited. Id. at 209 (finding that the jury need not "base an inference upon an inference in order to deduce negligence from the circumstances" where the circumstantial evidence was "not uncertain or indefinite" and did "not rest upon presumption" (quoting Bly v. S. Ry. Co., 183 Va. 162, 175 (1944))).

In complete contrast to those circumstances is the jury's verdict finding appellant liable for the accident that injured appellee. Here, there was no conflict in witness testimony for the jury to resolve because no one from either vehicle testified at trial and there were no other eyewitnesses to the collision itself or physical evidence to explain why the crash happened. Rather, the evidence presented-viewed in the light most favorable to appellee-only establishes, at best, that the two vehicles collided in the intersection during Spurlock's attempt to make a left turn across appellant's lane of travel and that, prior to the crash, appellant had failed to keep a proper lookout because she wasn't wearing her glasses.

But to conclude that appellant was a proximate cause requires evidence that the accident would not have occurred but for her failure to keep a proper lookout. Stated another way, if the accident would still have happened even if appellant had worn her glasses and kept a proper lookout, then appellant cannot legally be a proximate cause. See, e.g., Rascher v. Friend, 279 Va. 370, 377 (2010) ("[Because] a jury reasonably could have found that [plaintiff] would have had no opportunity to avoid the accident even if he had maintained visual contact with [defendant]'s vehicle[,] . . . the alleged [contributory] negligence on his part would not have been a proximate cause of the accident as a matter of law."). Such a determination, however, cannot be made without knowing the location, movement, and speed of Spurlock's vehicle in the four seconds leading up to the crash. See McManama v. Wilhelm, 222 Va. 335, 340 (1981) ("By failing to show where, when and how [decedent] entered the intersection, the plaintiff has failed to show that any negligence of [defendant] was a proximate cause of the accident.").

The evidence shows only that Spurlock failed to yield the right-of-way to appellant when making her left-hand turn. But nothing shows the timing of Spurlock's actions in the four seconds after Burke made his turn. Did she immediately start slowly crossing the westbound lanes of Wellington Road, thus becoming a visible obstacle that appellant had ample opportunity to see and avoid? Or did Spurlock hesitate, even for just a second, before suddenly darting into appellant's path, thus depriving appellant of any opportunity to react in time to avoid the crash?

Under the second set of circumstances, appellant's negligence is entirely immaterial to the question of proximate cause because Spurlock's unexpected dash across appellant's lane of travel would have happened too quickly for appellant to avoid the collision by braking or swerving even if she had been wearing her glasses and had kept a proper lookout.

In the absence of such information, appellee's evidence merely creates three equally plausible theories of causation: (1) that appellant was the sole proximate cause of the accident, (2) that appellant's and Spurlock's actions were each proximate causes, thus rendering them joint tortfeasors, or (3) that appellant was not a proximate cause at all, notwithstanding her failure to keep a proper lookout. The third option exists if Spurlock was the sole proximate cause of the accident, as described above, whereby her intervening negligence would sever the causal connection between appellant's actions and the car crash. See Kellerman v. McDonough, 278 Va. 478, 493 (2009) (holding that, for a "subsequent proximate cause" to "relieve a defendant of liability for his negligence[,]" the intervening negligence between defendant's act and plaintiff's injury "must so entirely supersede the operation of the defendant's negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury" (first quoting Williams v. Le, 276 Va. 161, 167 (2008); and then quoting Atkinson v. Scheer, 256 Va. 448, 454 (1998))).

The Supreme Court addressed an analogous situation in Elliott, 208 Va. 753, where it considered three different equally possible scenarios, based on a single set of limited facts, as to how and why the accident between a truck and pedestrian could have occurred. The Court ultimately concluded that "[t]here are no physical facts in evidence, or conflicts in defendant's testimony which alone, or taken with the physical facts, are sufficient to make out a prima facie case of negligence." Id. at 760. Like in Elliott, the jury here was left with a single set of facts that raised two conflicting conclusions of liability between which the jury had no way of distinguishing without resorting to conjecture and guesswork. Either appellant was liable for appellee's injuries because her negligence was the sole or joint cause of the crash (causation theories (1) and (2) above), or appellant was not liable because her negligence was not a proximate cause of the crash (causation theory (3) above).

As theorized above, if Spurlock had dashed in front of appellant's vehicle such that no reasonable person exercising due care and keeping a proper lookout could have avoided the collision, then Spurlock becomes a subsequent intervening cause and bars a finding of negligence against appellant. Thus, the unknown role that Spurlock played in the crash is the crucial missing link in appellee's evidence, without which the jury's determination of proximate cause could only have been based on impermissible speculation. See Weddle, 204 Va. at 324 ("Any conclusion drawn by a jury that the defendant was negligent in the operation of her automobile at the intersection based on the physical facts, which actually support neither theory of the accident by evidence of preponderating weight, would of necessity be based entirely on conjecture and guess as to why and how the collision occurred."). Accordingly, the trial court erred in allowing the case to reach the jury and in denying appellant's motion to set aside the verdict. See, e.g., Wright, 217 Va. at 520 (reversing verdict rendered in favor of plaintiff where "the evidence left the question of causal connection in the realm of conjecture, and the trial court left the jury free to speculate upon random [p]ossibilities rather than reasonable probabilities").

For the foregoing reasons, this Court reverses the verdict entered below and enters judgment in favor of appellant.

III. CONCLUSION

In resolving this case on the best and narrowest grounds, this Court finds the evidence presented at trial insufficient to establish a prima facie case of negligence against appellant. Because appellee did not introduce sufficient evidence of proximate cause, the trial court should have granted appellant's motion to strike rather than allowing the jury to render a verdict based on speculation and conjecture. Therefore, this Court reverses the trial court's judgment and orders the case be dismissed with judgment in favor of appellant.

Reversed and dismissed.

AtLee, J., dissenting.

I would find that there was sufficient evidence that appellant's negligence could have been a proximate cause of the accident, and the issue was properly submitted to the jury. Therefore, I respectfully dissent. I agree with the majority that the issue of whether appellant acted negligently is not at issue, and regardless, the evidence of her negligence was overwhelming. I do not agree, however, that there was insufficient evidence, as a matter of law, that her negligence proximately caused the accident and harm to appellee. More specifically, I disagree with the majority's conclusion that the absence of eyewitness testimony about the exact movement of Spurlock's vehicle in the four seconds before the crash meant there was insufficient evidence of proximate cause, requiring the jury to impermissibly speculate. In my view, there was sufficient evidence of appellant's negligence such that the issue of proximate cause was properly before the jury.

The majority holds that the absence of specific testimony as to how Spurlock's vehicle was moving in that sliver of time-the four seconds preceding the collision-means that a factfinder had no evidence upon which to find that appellant's negligence was the proximate cause of the crash. I agree that the moments leading up to the crash are essential, but do not believe we are left without any evidence as to what occurred in that window. I would therefore uphold the jury's verdict.

A. Standard of Review

"Ordinarily, proximate cause is a question for the jury. It becomes one of law only when the minds of reasonable men could not differ." Duncan v. Hixon, 223 Va. 373, 376 (1982). If reasonable men can differ, then "the verdict will not be disturbed." Id. Furthermore, where the trial court has denied a motion "to strike the plaintiff's evidence or to set aside a jury verdict, the standard of appellate review in Virginia requires this Court to consider whether the evidence presented, taken in the light most favorable to the plaintiff, [here, appellee], was sufficient to support the jury verdict in favor of the plaintiff." N. Va. Kitchen, Bath &Basement, Inc. v. Ellis, 299 Va. 615, 622 (2021) (quoting Parson v. Miller, 296 Va. 509, 523-24 (2018)).

B. Evidence of Causation

In my view, the issue of proximate cause was properly presented to the jury. "When a verdict is based on circumstantial evidence, '[a]ll that is required is that a jury be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible.'" Chase v. Breit, 226 Va. 102, 104 (1983) (alteration in original) (quoting Bly v. S. Ry. Co., 183 Va. 162, 176 (1944)). "If the facts proved support a reasonable inference that the act occurred, a jury issue exists." Id. Although proof of causation cannot be based on mere conjecture or speculation, the evidence here was sufficient to allow the jury to reasonably conclude that appellant was a proximate cause of the collision and resulting harm to appellee.

As the majority thoroughly sets forth the pertinent case law on negligence and proximate cause, I will not repeat it here. Crucially, however, we are mindful that "[a] green light is [not] an unqualified command to a motorist to move in the direction indicated under any and all circumstances. It is only a command to do so in the exercise of reasonable care ...." Medlar v. Mohan, 242 Va. 162, 167 (1991) (second and third alterations in original) (quoting Damron v. Hagy, 220 Va. 455, 457 (1979)). Thus, "[t]he duty of maintaining a proper lookout requires the favored driver to be on the alert for a motorist who attempts to drive through the intersection." Hodnett v. Friend, 232 Va. 447, 451 (1987). This "duty to keep a proper lookout . . . requires ordinary care to look in all directions for vehicles that would affect their driving, to see what a reasonable person would have seen, and to react as a reasonable person would have acted to avoid a collision under the circumstances." Henderson v. Gay, 245 Va. 478, 481 (1993) (emphasis added).

In this case, the accident occurred in the afternoon on a clear, sunny day in dry conditions. The intersection was large, with four wide traffic lanes going each direction-eight total, with a grassy median in between.[23] Appellant testified that she had 300 to 400 feet of "unobstructed view" of the roadway. There was a slight incline, but, as appellant testified, and the photographic exhibits and Burke's testimony confirm, it did not obstruct her view of the intersection. Appellant was driving in the right-hand through lane at the time of the collision.

Burke, who was driving in front of appellant in the right-hand through lane before getting into the right turn lane, noticed Spurlock's vehicle at the intersection. Spurlock was facing the opposite direction, waiting in the left-hand turn lane. At that time, Burke said Spurlock was "slowed to a stop or was creeping at that point....She was yielding to me." Burke said that Spurlock's vehicle was "completely visible" and was "obvious[ly]" waiting to turn left. Burke started to turn right, and approximately four seconds later, heard the crash.

Appellant, driving behind Burke, noticed none of this. Crucially, the point of impact was the rear passenger's-side of Spurlock's car. In order for Spurlock to be in that position, she had to cross multiple open, visible lanes of traffic-three to be in front of appellant in her lane, and almost four to be in the position she was in at the time of impact. Most of Spurlock's vehicle had to have already crossed directly in front of appellant's vehicle in order for her to strike the rear portion of the vehicle. Appellant did not brake, swerve, or otherwise try to avoid the collision. And how could she, given that by her own testimony, she never saw Spurlock's vehicle before impact, only a "white blur."

Under these circumstances, I do not believe we are without any evidence of causation. The majority finds there are three "equally plausible" theories of causation, the third of which being that appellant's negligence "was not a proximate cause at all, notwithstanding her failure to keep a proper lookout." This third option comes into play "if Spurlock had dashed in front of appellant's vehicle such that no reasonable person exercising due care and keeping a proper lookout could have avoided the collision." But, even accepting the premise that Spurlock darted in front of appellant, a reasonable person exercising due care would have, or should have, noticed a vehicle approaching them from the left, across a wide intersection with multiple lanes of traffic. It is reasonable to infer from the evidence (particularly when viewed in the light most favorable to appellee, the prevailing party) that appellant, in the exercise of due care and while maintaining a proper lookout, would have observed Spurlock's vehicle prior to impact-as did Burke-and respond with some defensive or evasive action. But she did not. There is no evidence, viewed under the correct standard, that suggests that appellant, as a matter of law, could not have acted to either avoid or to mitigate the severity of this accident. Instead, given the point of impact on Spurlock's car, a reasonable factfinder could conclude that had appellant slowed down even slightly, Spurlock's entire vehicle might have made it past her, and the accident might have been avoided, or the impact would have been greatly lessened. Accordingly, I do not believe the evidence is such that "the minds of reasonable men could not differ," Duncan, 223 Va. at 376, and I would not disturb the jury's verdict. See Va. Const. art. I, § 11 ("[I]in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred.").

Further, I believe that adopting the majority's view places appellant in a better legal position for never having seen Spurlock's vehicle than she would have been had she seen it prior to impact. In that view, appellant's failure to see Spurlock, given there being no direct eyewitness testimony about the vehicle's movements in the four seconds immediately prior to the accident, renders the issue of proximate cause speculative. But, had appellant seen Spurlock, her observations and her reactions thereto would have been tested and, even under the majority's reasoning, would have created a jury issue and thus not warrant reversal. I find it troubling that appellant should benefit from her own inattentiveness and poor eyesight which, as the jury found in rendering its verdict, was a circumstance attributable to her own negligence.

Of course, like all such cases, this is fact-dependent. The accident occurring in a large intersection with many lanes and clear visibility is entirely distinct from, say, a winding road with hidden drives from which Spurlock's sudden movement would have more understandably caught appellant unaware. But those are not the facts before us. Had appellant been wearing her glasses, or otherwise been attentive to her surroundings, she would have noticed other vehicles on the roadway, most crucially Spurlock's, and could have taken some precautions that would have made it possible to avoid the accident. Had she been paying attention so that she saw Spurlock approaching before the vehicle was in front of her, or even reacted in any way as Spurlock passed in front of her, she could have at least attempted to slow down or otherwise avoid the collision. The utter lack of evidence that appellant either noticed or reacted to Spurlock until Spurlock had nearly driven past her, combined with her documented negligence and the affirmative evidence that Spurlock was otherwise visible, in my view, presents adequate evidence that appellant's negligence was a proximate cause of the accident. In other words, the evidence of causation was "sufficient to take the question out of the realm of mere conjecture, or speculation, and into the realm of legitimate inference." Virginian Ry. Co. v. Haley, 156 Va. 350, 381-82 (1931). Given the affirmative evidence of appellant's negligence, together with the reasonable inferences to be drawn therefrom, the issue of whether appellant's negligence was a proximate cause of the accident (and, hence, the injuries suffered by appellee) was properly before the jury, and I am loath for this Court to substitute its judgment for that of the jury. For these reasons, I respectfully dissent.
Furr v. Al-Saray (Va. App. 2023)

 

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Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

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Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

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The following case is a real 2023 Virginia United States Federal Court case as to why the Statute of Limitations is vital. If you have been injured in an auto accident, you should contact an attorney. There is a 2  year statute of limitations in Virginia to pursue an auto accident claim. This is true even if you are asking your own insurance company to pay. I highly advise you contact a car accident lawyer (434) 660-9701.

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

This case comes before the Court on the Defendants' motion to dismiss, Dkt. 16. In this action, Plaintiff brings breach of contract and breach of good faith and fair dealing claims against Nationwide Mutual Insurance Company and Nationwide Property and Casualty Insurance Company. These claims are without merit and will be dismissed.

         I. Background

The Defendants contracted with Plaintiff Jacqueline Johnson on May 23, 2019, to issue her an auto insurance policy covering her 2016 Lexus Gx 460. Dkt. 11 (“Amend. Compl.”) ¶ 8. Defendant Nationwide Property and Casualty Insurance Company is the carrier for Plaintiff's policy, pursuant to the policy's provisions, and is a subsidiary of Defendant Nationwide Mutual Insurance Company (“NMIC”). Id. ¶ 9. The policy provides Uninsured Motorists (“UIM”) Bodily Injury coverage in the amount of $300,000 per person. Id. ¶ 10.

The policy detailed:

We will pay, in accordance with Va. Code Ann. Section 38.2-2206, damages which an insured or an insured's legal representative is legally entitled to recover from the owner or operator of an uninsured motor vehicle or an underinsured motor vehicle because of:

1. Bodily injury sustained by an insured and caused by an accident; and
2. Property damage caused by an accident.
Id. ¶ 11 (at p. U1). The policy further stated:

We will pay damages under this coverage caused by an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability or property damage bonds or policies have been exhausted by payment of judgments or settlements.
Id. ¶ 12 (emphasis in Amend. Compl.).

The policy also provided Plaintiff an umbrella policy with $1,000,000 in UIM coverage. Id. ¶ 13. She paid the policy's required premiums, maintaining the policy in good standing. Id. ¶ 14.

On August 17, 2019, Plaintiff was driving westbound on Route 24 in Bedford County, Virginia, in her 2016 Lexus Gx 460. Travis Dylan Watkins was driving eastbound on Route 24, towards Plaintiff, in a 2001 Ford Ranger. Watkins “failed to maintain his lane of travel, crossed the center line, and collided with [Plaintiff]'s vehicle head-on.” Plaintiff suffered serious injuries, as well as mental anguish and suffering, all of which she continues to endure. She has incurred $113,266.54 in medical expenses as of filing. Plaintiff asserts that “[n]otwithstanding his duties,” Watkins “operated his vehicle negligently when he failed to maintain a safe distance and keep a proper lookout thereby crashing into [Plaintiff]'s vehicle, causing her serious and permanent physical injuries.” See id. ¶¶ 15-19, 34.

Plaintiff, “by counsel, executed a release” on June 23, 2020, “settling [her] claim against Mr. Watkins for $100,000.” Id. ¶ 22. Thus, she contends she “exhaust[ed] by settlement the only applicable bodily injury liability policy, which sum was insufficient to compensate [Plaintiff] for her injuries but represented all that she could reasonably expect to recover from Mr. Watkins.” Id. She further argues that “[c]onsistent with Va. Code Ann. Section 38.2-2206, and the provisions of the Nationwide policy, this release did not prejudice [her] right to continue to pursue her claim against her UIM coverage.” Id. ¶ 23. She also asserts that “[t]hroughout this process and at all relevant times thereafter, [Plaintiff], through counsel, remained in constant contact with representatives and agents of the Defendants.” Id. ¶ 24.

Plaintiff's counsel spoke to Defendants' representatives and agents about her UIM claim “numerous times via email and phone.” Id. ¶ 25. These included “Oran Bell, who indicated filing suit against Mr. Watkins was not required, as [Plaintiff]'s UIM policy did not require suit to be filed or judgment be obtained for Nationwide to be obligated to pay [Plaintiff].” Id. Through agent Bell, the Defendants “agreed that the policy obligated them to make payments to [Plaintiff] because she exhausted all liability policies by settlement.” Id. ¶ 26.

Plaintiff's counsel, throughout 2021 and 2022, “informed representatives and agents of the Defendants that Counsel was collecting bills and records in order to make a settlement demand.” Id. ¶ 27. And through agent Bell the Defendants “again offered and agreed to review [Plaintiff]'s settlement demand.” Id. ¶ 28. Further, “[c]onsistent with these agreements and with [Plaintiff]'s policy language, representatives and agents of the Defendants, sent numerous emails throughout the remainder of 2021 and into 2022 to Plaintiff's counsel asking for a demand package.” Id. ¶ 29. However, “[m]any of these emails soliciting a demand from Plaintiff's counsel were sent to Plaintiff's counsel long after the two-year personal injury statute of limitations to file suit against Mr. Watkins had expired,” i.e., August 17, 2021. Id. ¶ 30 (citing Ex. B).

Plaintiff's counsel sent NMIC a demand package on May 20, 2022, at Nationwide's request. Id. ¶ 31. This package, sent through agent Bell, contained Plaintiff's medical bills and records and offered to settle her UIM claim for $1,100,000. Id. (citing Ex. C). But the Defendants' representatives and agents denied her UIM claim, stating it “was extinguished because suit was not filed against Mr. Watkins within two years of [Plaintiff]'s crash, in contradiction of their previous statements.” Id. ¶ 32. She asserts, however, that she “reasonably relied upon the representatives and agents of the Defendants [sic] statements of agreement and liability.” Id. ¶ 33. And “[b]ut for the Nationwide policy's language and representatives and agents of the Defendants assurances [sic], [Plaintiff] would have filed suit against Mr. Watkins within two years of the date of the crash to satisfy the Defendants' newly announced, disingenuous, and self-serving position.” Id. ¶ 33.

         II. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The purpose of a Rule 12(b)(6) motion is to “test the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King, 825 F.3d at 214 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). “Thus, when considering a motion to dismiss, a court must consider the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.” Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020). Nevertheless, only facts can render a claim for relief plausible.

         III. Analysis

i. Plaintiff's Breach of Contract Claim is Meritless

Virginia law[2] dictates that UIM carriers have a duty to their insured to pay the damages to which the insured is “‘legally entitled to recover,' and [] a judgment against the uninsured tortfeasor is required to create a legal entitlement to recover damages.” Manu v. GEICO Casualty Co., 798 S.E.2d 598, 603 (Va. 2017). This means that before a UIM carrier is obligated to pay its insured, the insured must “obtain a judgment against the uninsured tortfeasor whose actions come within the purview of the [UIM] policy.” Id. at 605.[3] The Supreme Court of Virginia has explained that a Virginia UIM carrier only has “a duty to pay, to an insured, damages which an uninsured motor vehicle owner or operator has been ordered by a Court to pay the insured for bodily injury or property damage caused by operation of an uninsured motor vehicle.” Id. at 603. And a UIM carrier “would not be subject to an action in contract on its uninsured motorist endorsement until judgment in tort had been entered.” Id. (quoting Willard v. Aetna Cas. & Sur. Co., 193 S.E.2d 776, 778 (Va. 1973)). So a UIM carrier's obligation “‘arises only if it is determined that the insured is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle,'” and “‘[j]udgment is the event which determines legal entitlement to recovery.'” Id. (quoting Midwest Mut. Ins. Co. v. Aetna Cas. & Sur. Co., 223 S.E.2d 901, 904 (Va. 1976) (internal quotation marks omitted) (emphasis in original).

Plaintiff's Amended Complaint seeks recovery under two Virginia UIM policies, but Plaintiff nowhere alleges that any judgment was entered against a tortfeasor to establish an enforceable UIM claim. Thus, Plaintiff's UIM claim is meritless and must be dismissed.

Moreover, even if such a claim could be brought, Plaintiff's claim is barred by the statute of limitations. In Virginia, a personal injury action has a two-year statute of limitations. See Va. Code Ann. § 8.01-243(A).[4] Virginia statutory law governs the effect of promises not to plead a statute of limitations defense. Va. Code Ann. § 8.01-232(A). Other than in circumstances of fraud, not at issue herein, any “unwritten promise not to plead the statute [of limitations] shall be void.” See Va. Code Ann. § 80.1-232(A). Plaintiff's Amended Complaint never alleges that any written agreement not to plead the statute of limitations was endorsed under the statutory prerequisite conditions provided by the state legislature. Thus, the Defendants did not waive their right to raise a statute of limitations defense. And the statute of limitations will bar any suit by Plaintiff against Watkins, as the accident occurred in August 2019. She never filed a suit against him prior to the statute of limitations expiring in August 2021.

 i. Plaintiff's Good Faith and Fair Dealing Claim Is Deficient as a Matter of Law

Count II of Plaintiff's Amended Complaint is based only in an alleged breach of good faith and fair dealing. Virginia does not recognize an independent cause of action for bad faith. Capitol Property Mgmt. Corp. v. Nationwide Prop. & Cas. Ins. Co., 261 F.Supp.3d 680, 683 (E.D. Va. 2017) (“Capitol's bad faith claims fail as a matter of law, as Virginia law does not recognize an independent cause of action for bad faith, and Capitol has not demonstrated that Nationwide breached the terms of the policy.”). “Virginia Code § 38.2-209 provides that an insured may recover costs and reasonable attorney fees if the insurer's failure or refusal to provide coverage was not in good faith,” but this statute “does not create a separate and independent cause of action for bad faith.” Id. at 694 (internal citations omitted). And Plaintiff sets forth no statutory, common law, or other duty that could create a plausible cause of action against the Defendants as alleged in Count II. Thus, this claim must be dismissed.

Plaintiff unpersuasively argues that this claim should survive because, though Virginia does not recognize breach of implied warranty of good faith and fair dealing as a separate action, Virginia recognizes that breach of the implied warranty of good faith and fair dealing gives rise to an action for breach of contract. Dkt. 22 at 7. But the Fourth Circuit has recognized that “in Virginia, as elsewhere, [] although the duty of good faith does not prevent a party from exercising its explicit contractual rights, a party may not exercise contractual discretion in bad faith, even when such discretion is vested solely in that party.” Va. Vermiculite, Ltd. v. W.R. Grace & Co. - Conn., 156 F.3d 535, 542 (4th Cir. 1998) (emphasis in original). So an implied breach of good faith and fair dealing claim cannot be properly pled if a plaintiff seeks redress for an implied covenant claim “merely for Defendant's unfavorable exercise of its explicit contractual rights.” Enomoto v. Space Adventures, Ltd., 624 F.Supp.2d 443, 450 (E.D. Va. 2009). For example, the Eastern District of Virginia has found that a plaintiff's claim was properly pled because “Plaintiff alleges that Defendant's actions were not merely unfavorable, but actually dishonest,” as “[h]e allege[d] that Defendant purposefully failed to provide him with a space flight and purposefully failed to inform him of the high likelihood of medical disqualification until after he had paid three or four payments that Defendant submits are non-refundable.” Id. (internal citations omitted).

Here, the facts alleged do not support that Defendants exercised contractual discretion in bad faith. Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 940 (4th Cir. 1999) (“Bad faith includes the evasion of the spirit of the bargain and an abuse of a power to specify terms.”) (internal quotations and citations omitted). Thus, this claim will be dismissed.

Conclusion

Johnson v. Nationwide Mut. Ins. Co. (W.D. Va. 2023)

#caraccidentlawyer #lynchburgva

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

 

Recently a Lynchburg Virginia client called me. My client had gotten into a motorcycle accident. Her and her Husband were riding their motorcycle along the blue ridge parkway when a deer jumped out in front of them. This caused the motorcycle to Crash and severely injure my client. At first the insurance company tried to deny my client's claim for compensation, and pay my client nothing. After diligent work on the case, the insurance company realized that was not going to fly. Eventually we secured the full insurance policy limits of $100,000.00. If you have been in an accident you should call me at (434) 660-9701

#caraccidentlawyer #lynchburgva

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Hello, my name is Chris and I am a Lynchburg, Virginia auto accident attorney. I was born here in Lynchburg. I was raised here in Lynchburg, and I want to fight for your insurance compensation rights here in Lynchburg. Call me (434) 660-9701 #caraccidentlawyer #lynchburgva #personalinjury

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Hello, My name is Chris and I am an Auto Accident Attorney. Recently a Lynchburg Virginia client called me. My client had gotten into a motorcycle accident. Her and her Husband were riding their motorcycle along the blue ridge parkway when a deer jumped out in front of them. This caused the motorcycle to Crash and severely injure my client. At first the insurance company tried to deny my client's claim for compensation, and pay my client nothing. After diligent work on the case, the insurance company realized that was not going to fly. Eventually we secured the full insurance policy limits of $100,000.00. If you have been in an accident you should call me at (434) 660-9701 #caraccidentlawyer #lynchburgva #autoaccidentlawyer #virginia

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Did the insurance company deny your claim? Call me (434) 660-9701

$100,000.00 Motorcycle Accident Uninsured Motorists Policy Limits Settlement.

One of my clients was riding a motocycle with her husband on a motorcycle in the beautiful Blue Ridge Mountains when a deer jumped out in front of them. They were forced to veer off the road resulting in severe injuries.

At first the insurance company denied her claim and didn’t want to pay anything. After fighting for my client we were able to get her the full policy limits of $100,000.00. Free Consultations call me (434) 660-9701

 

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

 

 

 

Chris White Lawyer, LLC is a Global Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my website at ChrisWhiteLawyer.com. Thank you for reading, please also look at my practice areas, like Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube Channel, Instagram, Facebook, Twitter, LinkedIn, Tumblr, Blogger, Reddit, Yelp, Avvo and Justia. Thank you for your time and consideration.

 

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502