Premises Liability Cases in Virginia

Virginia is not a plaintiff’s friendly Commonwealth.Consequently, Virginia is a commonwealth where contributory negligence applies. Essentially, where a plaintiff has contributed to their own injury, it may be a complete bar to any recovery. That said, you should take advantage of a free consultation from an Attorney (434) 660-9701. Often clients will take advantage of a free consultation not knowing they have a claim for compensation. Clients have called before when they have a claim for compensation for something they did not contemplate. Lynchburg Slip and Fall Attorney

Slip and Fall Cases in Virginia

There are several factors that go into whether an injured party has a claim for compensation with regards to a premises liability case or slip and fall case. The court will examine several factors in order to determine if the case will even make it to a jury.

It is well established in Virginia that “store owners must maintain reasonably safe facilities for their invitees” or patrons. Specifically, the storeowner “owes an invitee the duty of using ordinary care to maintain its premises in a reasonably safe condition and to warn…of any hidden dangers.”

Courts Analysis:

Dangerous Condition:

“The plaintiff in a premises liability case must prove the existence of and unsafe or dangerous condition on the premises.” For example, “Virginia courts have typically recognized that certain conditions are unsafe as a matter of course, such as a wet or slippery substance on the floor of the premises, or the presence of an unexpected object lying on the floor."

Knowledge:

"To recover against the owner, an injured invitee must show that the owner had knowledge, actual or constructive, that a defect existed and that such defect created an unsafe condition.":

    1. Actual knowledge, or: Actual knowledge is exactly that, that the storeowner knew the condition was dangerous and did nothing about it.
    2. Constructive knowledge: "Constructive knowledge or notice of a defective condition of a premise ... may be shown by evidence that the defect was noticeable and had existed for a sufficient length of time to charge its possessor with notice of its defective condition." Furthermore, "if the evidence fails to show when a defect occurred on the premises, the plaintiff has not made out a prima facie case."

Proximate Cause:

"A plaintiff must show why and how the incident happened.... If the cause of the event is left to conjecture, guess, or random judgment, the plaintiff cannot recover. The general rule in Virginia is that a plaintiff must, in order to establish a defendant's negligence, prove why and how the incident happened; if the cause of the event is left to conjecture, guess, or random judgment, the plaintiff cannot recover. Negligence cannot be presumed from the mere happening of an accident.... The evidence produced must prove more than a probability of negligence and any inferences therefrom must be based on facts, not presumptions."

Contributory Negligence:

The Plaintiff must not have contributed to their own injury.

Conclusion

Virginia Law on Premises Liability cases have a strict standard. The Court will set aside verdicts on a broad standard. This includes that if the verdict was based on as “the result of surmise, speculation and conjecture." If you have been injured on someone else’s property, you may be entitled to compensation and you should call me for a free consultation (434) 660-9701.

It must be noted that all of the quoted information is from Virginia Case Jefferson v. Kroger, L.P. I, 2014 (United States District Court for the Eastern District of Virginia, Richmond Division November 3, 2014, Filed). This case is still good law as of the date of posting this article.

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accidents. At my Law Firm we focus on the best result for the client. To stay connected I have a YoutubeInstagramFacebookTwitter, LinkedInTumblrBloggerRedditYelpAvvo and Justia.

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

What is a Deposition? A deposition is typically when a lawyer asks a witness a series of questions prior to or out of court, wherein a court reporter is present and recording the entire statement. This is for the purpose of later being used at trial or in a court hearing. If you have an upcoming Deposition, you should call me for a free consultation (434) 660-9701 Depending on your state, a deposition can either be in a Criminal or Civil proceeding.

Civil:

In Civil Law, a party is usually permitted to take depositions of other parties and witnesses. The transcripts or sometimes even video recorded depositions are later be played to a jury. This Often, depositions in Civil proceedings are used for the purposes of settlement. Civil proceedings are usually primarily about money damages. Sometimes they can be about more then money damages like, injunctions.

Criminal:

Virginia does not typically have criminal proceeding depositions. Florida does though. In Florida, your criminal defense attorney is permitted to depose the police officer prior to trial. In Virginia this is not allowed. Virginia does however, have preliminary hearing wherein the arresting officer is usually called to testify, in which case this can be recorded or transcribed by a court reporter.

Deposition Attorney:

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accidents. At my Law Firm we focus on the best result for the client. To stay connected I have a YoutubeInstagramFacebookTwitterLinkedInTumblr, BloggerReddit, Yelp, Avvo and Justia.

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

A mediation is essentially a meeting. Mediations are usually a meeting where all parties to a case meet and in front of a neutral party present their case. The neutral party or “mediator” reviews the information and then discusses their opinion of the case. If you are a party to a civil suit, you should call me. I am  a Lynchburg Virginia Attorney.

Non-binding

Usually, mediation is non-binding. Unlike arbitration, where the parties are bound by the decision of the neutral party or arbitrator. In mediation, the parties can take it our leave it. The opinion of the mediator can either be followed or the parties can continue to litigate the matter.

Experienced Civil Attorney

In a lot of states, mediation is mandatory prior to putting a case to a jury. And, in states where mediation is not mandatory a judge will usually Order mediation before a trial. This is because judges do not like to waste jurors time. It is an effort to settle cases prior to calling a jury from the community to and having them sit and listen to a case. Judges like settlements, it frees up their case loads and gets them extra vacations.

Jurys have to take time off work or their lives to come to a jury trial. This can be cumbersome on the community and cost the system a lot of money. Sitting on a jury is however, a United States Constitutional duty. If you have been called to a jury, you should take your duty seriously and respectfully.

Mediation in practicality

Mediation is a good way for both parties to lay everything out on the table and negotiate the case. Often, good civil case offers come from Mediation. I have settled several cases at mediation. I am an experienced Lynchburg Virginia Attorney. You should call me for a free consultation (434) 660-9701.

The negotiations that take place a mediation are usually a good way for both parties to a case to see everything that is going on in the case and understand the perceptions of a neutral party. The truth is though, a lot of cases do not settle at Mediation.

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accidents. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube InstagramFacebookTwitterLinkedInTumblrBloggerRedditYelpAvvo and Justia.

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

Causes of Rear-End Accident

Understanding the Common Causes of Rear-End Accidents is important to preventing these types of accidents. If you have been injured in a rear-end auto accident, you should call me for a free consultation. I am a Motor Vehicle Accident Attorney (434) 660-9701 A substantial number of auto accidents are rear-end crashes. Following to closely can be a cause of a rear-end crash.

What causes most rear end accidents:

Distracted driving:

Distracted driving accidents are a real problem in the United States. Basically, the Centers for Disease Control identifies three types of distracted driving. Moreover, the three types of distracted driving are visual, manual and cognitive. Visual is taking your eyes off the road. Manual is taking your hands off the wheel. Cognitive is taking your mind off driving.

The CDC further identified that 3,100 people were killed because of distracted driving in 2019. Often, we do not get these statistics until a few years after the fact, because the information takes time to be collected. What was an unfortunate fact is that 1 in 5 of the people who died from a distracted driver in 2019 were walking, riding bikes or not in a vehicle.[1]

Driving while using the cellphone:

Driving while using a cellphone is illegal in Virginia. § 46.2-818.2. “Use of handheld personal communications devices in certain motor vehicles; exceptions; penalty. It is unlawful for any person, while driving a moving motor vehicle on the highways in the Commonwealth, to hold a handheld personal communications device.”[2]

In Virginia, Driving while using a cellphone is a primary offence. , the difference between primary and secondary offences is what you can get a ticket for and what an officer can pull you over for. A primary offence is something an officer can pull you over for. For example, if an officer sees you using a cellphone, they can pull you over. If an officer sees you do not have a seat belt they cannot pull you over but can give you a ticket for not wearing a seat belt if you have been pulled over for another reason.

Drunk driving:

Drunk driving is never ok. It is never ok to drink and drive. Every year people in the United States are killed because of drunk driving. If you have been injured as a result of a drunk driver, you should call me for a free consultation. I am a motor vehicle accident attorney. Consequently, drunk driving accidents carry with them punitive damages. Nevertheless, punitive damages have a multiplier effect and can quickly add up. I have secured substantial settlements for drunk driving accident clients.[3]

The National Highway Traffic and Safety Administration collects and disseminates information about drunk driving accidents. According to NHTSA 37 people a day die from drunk driving accidents.[4]

reckless driving:

Reckless driving is a crime in Virginia.[5] Subsequently, it was made a crime to deter this conduct. Reckless driving is the source of a lot of auto accidents injuries. In many states, reckless driving, like drunk driving, brings with it punitive damages. Subsequently, I have secured punitive damage settlements for clients that have been injured in reckless driving auto accidents. Usually, insurance companies move a little quicker with the level of negligence amounts to recklessness.

Depending on the state the accident happened in, if you have been the victim of a reckless driving accident you may be entitled to punitive damages. Some states do not recognize all conduct as a punitive damages warranting event. In contrast, the driving laws in the United States very substantially from state to state. For example, in the Commonwealth of Virginia, a hit and run accident may not entitle you to punitive damages while in Florida it certainly will.

For example, one of my former clients was driving along a highway when another driver approached from the rear, went into the oncoming lane beside them and was forced to swerve and side swipe my client in order to avoid a head on collision. This was reckless driving. I was able to secure the full insurance policy for my client.

road rage or aggressive driving:

I have secured settlements for clients that have been injured as the result of a road rage and aggressive driving accident. Likewise, one of my clients was rear ended after being berated and followed by a person perpetuating road rage. I must commend it when an insurance company does the right thing and provides a substantial settlement for what was clearly conduct that is unacceptable. My client was being followed, flicked off, cursed at, threatened with a much larger vehicle then my client was in and eventually rear-ended. Luckly, we had proof of all of this conduct and were able to secure a settlement.

Road rage may be on the rise. “The number of aggressive drivers has increased steadily since America went back to work following the pandemic.”[6] There are several road rage aggressive driving cases in Virginia every year and sometimes, they result in death.[7]

Road rage is not acceptable and if you have been injured as a result of a road rage accident you should call me for a free consultation (434) 660-9701. Aggressive driving is also a problem in this country, we are all on the road together so be safe out there and considerate to others.

Conclusion

If you have experienced a rear-end collision, the first thing you should do is call your local authorities. The second thing you should do is call a motor vehicle accident attorney. A motor vehicle accident attorney can focus on getting you maximum compensation for your auto accident. The insurance companies are not on your side. Even though you pay premiums, once you have a claim often they turn on you.

[1] https://www.cdc.gov/transportationsafety/Distracted_Driving/index.html

[2] https://law.lis.virginia.gov/vacode/title46.2/chapter8/section46.2-818.2/

[3] https://chriswhitelawyer.com/results/

[4] https://www.nhtsa.gov/risky-driving/drunk-driving

[5] https://law.lis.virginia.gov/vacode/title46.2/chapter8/section46.2-868/

[6] https://advance-lexis-com.eu1.proxy.openathens.net/document/?pdmfid=1516831&crid=44e713ef-a39b-41c6-809c-e6d891fea635&pddocfullpath=%2Fshared%2Fdocument%2Fnews%2Furn%3AcontentItem%3A67BV-R1S1-DXVP-V410-00000-00&pdcontentcomponentid=152567&pdteaserkey=sr0&pditab=allpods&ecomp=tmnyk&earg=sr0&prid=6d67e9fd-705e-4fa4-be80-e0802748d332

[7] Canipe v. Commonwealth, 25 Va. App. 629 (1997)

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube InstagramFacebookTwitterLinkedInTumblrBloggerRedditYelpAvvo and Justia.

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

 

Tort Law and The Economics of Sovereign Immunity[1]

I hate and detest falsehood but I love your law.”[2] We need a return to the biblical law standard and the older common law approach to tort law. This is because the economic impact of fraudulent local prosecutors would be held in check. Where “there is a set standard of conduct, and the Court looks at the facts of the case, determines whether the facts of the case meet or fall short of the standard, and based upon that determination decides liability.”[3]

Tort law is implicated through the doctrine of sovereign immunity. When our nations prosecutors engage in frauds on the court, the should incure Tortious liability. It is a tort against the falsely accused, the innocent. The economic damages are insurmountable, but those in power deny that.

The current law and economic approach is instead focused upon setting a rule that will minimize incidents in the future.[4] At first glance this seems like a great idea, but upon implimentation, the authorities are prosecuting innocent people. Not just innocent, blantatly innocent, obviously independantly proven innocent. What it has resulted in is total unaccountability for state actors. Really, what we should be asking is what is the truth and pursuing that. That is not what is happening in our government today, it is a “might makes right” agenda and bulldoze people that we are just exercising a “we don’t like” analysis. The is the current state of federal, state and local justice departments. Personally, I think God is going to serve them with what they got coming soon enough. God only allows injustice to go forward for a limited time, and then the rubber band snaps back.

There Must Be Limits To Absolute Prosecutorial Immunity

“The current system of absolute prosecutorial immunity fails when prosecutors fail to “seek Justice before victory.”[5] For this reason the Court must reexamine the doctrine of absolute prosecutorial immunity.”[6] Arbitrary government decisions by those charged with fair enforcement of the law is a violation of the law. “To permit criminal prosecutions to be initiated on the basis of arbitrary or irrational factors would be to transform the prosecutorial function from, one protecting the public interest through impartial enforcement of the rule of law to one permitting the exercise of prosecutorial power based on personal or political bias."[7] Governments routinely charge based on arbitrary government decision making. In recent years this is certainly true. This is a foundational affront to the rule of law.

Throughout this brief, I find it is extremely difficult to refer to Virginia prosecutors as “Commonwealth Attorneys” because that is not what they are. The basis of the proceedings against a number of accused citizens were not for the good Commonwealth of Virginia, but were based on personal bias and not a fair enforcement of the law. As we sit here in the United States, where Law enforcement and political agenda meet, there is dark underbelly of corruption.

The economic impact of false persecutions are so huge they cannot be over stated. The torts of defamation, malicious prosecution, intentional infliction of emotional distress and false arrest. This conduct can have lifelong economic impact. The system has to change, the state actors must be held accountable for their own actions.

Arbitrary Government Decision Making

A prosecutor acting contrary to seeking justice and instead pursues arbitrary government decision making sees prosecutorial discretion that is “ill-served by granting [absolute immunity] it in cases when [a prosecutor] acts without colorable authority.”[8].  As it sits today, when applied to the conduct of Commonwealth Attorney’s offices, the doctrine of absolute prosecutorial immunity, does not serve the interests of justice. To the contrary, it only serves as permission for prosecutors to conduct themselves however they want. Acting without any regard to the law and foundationally contrary to the pursuit of justice, all while facing zero accountability for their actions.

There must be a civil remedy

Holding prosecutors civilly liable for their dishonorable, unethical and outright fraudulent conduct on this nations courts and citizens must not be permitted. When absolute prosecutorial immunity was established, fraud on the court was not in the minds of those creating the doctrine. Because it was unimaginable that those entrusted with fair enforcement of the law, and serving the community would conduct themselves in a manner in which this nations prosecutors do. Absolute Prosecutorial immunity never considered that prosecutors would exercise their extraordinary power without doing so judiciously, in the pursuit of justice.

Absolute prosecutorial immunity has evolved into a zero accountability systematic “get out of jail free card” to conduct a fraud on the U.S. Court system and deprive U.S. Citizens of their Constitutional, Biblical and International Human Rights. Absolute Immunity provides prosecutors with zero accountability for their conduct. Prosecutors have displayed numerous times throughout their proceedings that they do not conduct themselves objectively that instead they exercise a “I don’t like this person” analysis and therefore I should put them in prison based on utterly unfounded accusations. The number of people exonerated from death row because of irrefutable DNA evidence is an undeniable fact that prosecutors get it wrong.

When we speak about the economic impact of falsely imprisoning someone, we must consider the billions of dollars this is likely affecting. In the United States we live in a mass incarceration society. We imprison more people per capita then any other developed nation on this planet. Even if it’s a fraction of a percent of them that are innocent, that number would be in the thousands. This is also know as billions in economic impact.

Systemic Abuse and Change

Currently, there is a premium on winning as opposed to pursuing a just result. Prosecutors are evaluated, not based on their measure and good judgment in the pursuit of justice, but on “winning” (convictions). This is an affront to the foundation of jurisprudence and the Oath every attorney takes before being admitted to the bar. Prosecutors are permitted to not point to evidence in frauds on the court, they seek to foundationally undermine the law. This has often led to absurd circus's in the court system.

One in six reversed capital cases was the result of “prosecutorial suppression of evidence that the defendant is innocent.”[9] Read that last sentence again and then pray to God about what you “thought” you knew before you read this. Prosecutors seek to have exculpatory evidence of their own experts excluded from trial. Prosecutors lie right to Judge’s faces about evidence they have been shown in previous hearings, and ignore digital prima facie evidence that entire proceedings are a sham.

Endless U.S. Constitutional and Human Rights Violations.

A prosecutor’s job creates multiple moments of power and authority over a life-changing process, and with zero accountability and no incentive to pursue justice, the system has become rot with abuse of power. Prosecutors may even seek to delay a trial for the unjust purpose of their own personal bias or prejudice.[10] Prosecutors seek to delay trials for no other purpose then to submit pain and suffering of a continued persecution on their victims.

Where defendants seek to get the quickest trial date available, prosecutors force delay after delay after delay. Not for the purpose of just proceedings but for the sole purpose of infliction of emotional distress on the defendants and their families. The fact that they have no accountability whatsoever for Their actions and our elected officials dissociative indifference to the conduct of their subordinates will only see a deprecation to the good community. This is a human rights violation.[11]

Using Perjured Testimony

Prosecutors use absolute immunity to “knowingly use perjured testimony.”[12] Prosecutors blatantly ignore their own investigator testifying that false accusers commit perjury. Prosecutors will also make impermissible remarks or attempts to introduce improper evidence at trial.[13] Prosecutors purposefully and in an effort to undermine direct Court Orders by Judge’s not to refer to a previous hearings because of the improper prejudicial nature do so while cross-examining defendants in front of the Jury. This is a crime in and of itself.

Government Transparency

One thing is certain is that our government even the local government should be dismantled and carefully put back together. As it sits, a defendant can request that the whole trial be videotaped so that the public can know what an absolute fraud on the Court even Bethany Harrison of the Lynchburg City Prosecutors office will allow. But the judges can still deny that request. Fact is people in power want you to take the sodomy they dish out and if they are wrong they want no accountability for that. One of the few protections we have in this country is public hearings.

In Lynchburg City and all courts, you should be allowed to video tape a proceeding. Otherwise people that are false accusers will get away with their lies. Prosecutors can act insane with no accountability and when its time for a falsely accused to get their life back. Potential employment will no longer be available because whole thing was absolutely nonsense but there is no way to show it on video. In today's modern era, Court hearings must be recorded on video.

The economic impact of this knows no bounds. If the public does not know the particularities of everything surrounding what our local Lynchburg City Prosecutors office will do, they will destroy the well-built Law Firm of the falsely accused. Where before the authorities conducted their unwarranted sodomy a falsely accused had a productive law firm with economical viability, now its destroyed and no one cares.

Zero Accountability for Prosecutorial Misconduct

Alternative checks on a prosecutor’s power is almost never effective and certainly not a conduct changing deterrent. As it sits, internal office discipline is the only real redress a defendant can hope for. This is almost never effective as a deterrent to what really amounts to criminal conduct of a prosecutor themselves. If any other lawyer acted in a way that our country’s prosecutors do, and not been a prosecutor, they would have been brought before the Bar and at a minimum civilly sued.

Electoral Process

The only real check on prosecutors misconduct is the prospect of losing an election, however this provides little to no deterrent to a prosecutor determined to violate a defendants’ U.S. Constitutional, Biblical and International Human rights. Most of the time voters do not even know who the Constitutional violating prosecutors are as their conduct is often suppressed or not made abundantly aware to the public until years later. And, this is certainly so in a small professional community of personal relationships between attorneys in a smaller locality. This environment makes it less likely that misconduct and fraud on the Court will be reported by neutral parties.

“Forty-five of the fifty states elect their chief local prosecutors. But in these elections, most prosecutors run unopposed. When the incumbent prosecutor runs for reelection, he or she is often the only candidate in the election. According to one study, eighty-five percent of incumbent prosecutors run unopposed in general elections. And, when they are opposed, prosecutors win their elections in nearly seventy percent of those races.”[14] The errors of a prosecutor acting without good faith can have disastrous and extreme affects on a defendants future, family’s and communities with generally no accountability.

“Prosecutors can engage in unequivocal misconduct—misconduct that is labeled as such by a federal court judge—and face no professional or criminal comeuppance.”[15] “The prosecutrix further abused her power by using the very situation she had created against the defendant in closing argument.”[16] Prosecutors abuse their power and oath to seek justice. Elected prosecutor Bethany Harrison exercises arbitrary government decision making that is a selective enforcement of the law. Bethany Harrison’s Office subverts basic U.S. Constitutional, foundations of jurisprudence, Biblical and International Human Rights law.

Prosecutors undermine the system, violate obvious rules without sanction and abuse power with no repercussions. Prosecutorial immunity must be limited. “Absolute Immunity leaves the genuinely wronged defendant without civil redress even against an indisputably and identified malicious or dishonest action that deprives him of liberty, dignity and protection of law.”[17]

Absolute Prosecutorial Immunity as a policy is misguided.

“[T]he common law recognized a fundamental ‘distinction between unauthorized acts and discretionary acts,’” with resulting “‘strict liability for acting outside of the authority enumerated by the Constitution.’[18] The Court must reevaluate prosecutorial immunity. We must return to the Common Law that held prosecutors liable for actions that exceeded the authority of their office.

Christian Worldview

What we must consider when evaluating Absolute Prosecutorial Immunity is that there are few individuals in our society that have no accountability for their conduct. That has created a license to do whatever you want and disregard the rights of others. All while basing your conduct on personal bias. This has maculated into a “might makes right” system, while trampling the rights of the falsely accused. That is not the purpose of the Immunity Doctrine, but that is what it has evolved into.

Lynchburg, Virginia

Ultimately, Bethany Harrison’s office, is a human rights violating office. What we need is someone similar to Jim Durkin. “Ill never be accused of being soft on crime, but I’m more interested in seeking the truth than a conviction.”—Jim Durkin (Illinois House Minority Leader) [19] The truth should be sought before the government is allowed to just sodomize an accused finances, future, employment, and most importantly the sanity of their family. As it sits, if the accused is not of the radical alt-left mind virus that has infested the Downtown Lynchburg Virginia authorities, it must be justified.

Citations

[1]Anilao v. Spota, No. 22-539 (2022)(the following essay has been written with various points of law that the amicus brief from of law enforcement action partnership)

[2]Psalms 119:163 (King James)

[3]Chrisman, Law & Economics, 75 (2016)

[4]Id.

[5]Miller v. United States, 14 A.3d 1094, 1107 (D.C. 2011)

[6]Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[7]United States v. Torquato, 602 F.2d 564, 568 (3d Cir. 1979)

[8]Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir. 1990)

[9]David Keenan, Deborah Jane Cooper, David Lebowitz, & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L. J. 203, 209–11 (2011)

[10]Brady v. Maryland, 373 U.S. 83 (1963)

[11]Universal Declaration of Human Rights, December 10, 1948 ,United Nations General Assembly Resolution 217 A.

[12]Mooney v. Holohan, 294 U.S. 103, 112 (1935); Alcorta v. Texas, 355 U.S. 28, 31–32 (1957); Napue v. Illinois, 360 U.S. 264 (1959)

[13]Griffin v. California, 380 U.S. 609 (1965)

[14]National Study of Prosecutor Elections, The Prosecutors and Politics Project, U. N.C. (February 2020), at 4, available at: https://law.unc.edu/wp-content/uploads/2020/01/National-Study Prosecutor-Elections-2020.pdf; Ronald Wright, How Prosecutorial Elections Fail Us, 6 OHIO STATE JOURNAL OF CRIMINAL LAW 581, 593–94 (2009); Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[15]Id.

[16]United States v. Golding, 168 F.3d 700, 703 (4th Cir. 1999)

[17]Imbler v. Pachtman, 424 U.S. 409 (1976); Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[18]William Baude, Is Quasi-Judicial Immunity Qualified Immunity?, 74 STAN. L. REV. ONLINE 115, 123 (2022).

[19]Justin Brooks, “You May Go to Prison, Even Though You’re Innocent,” 83 (2023)

Criminal Justice Attorney

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube InstagramFacebookTwitterLinkedIn, Tumblr, BloggerReddit, YelpAvvo and Justia.

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

Personal Injury and Criminal Defense Attorney

Chris’s passion for and career in personal injury began after he was in a severe auto accident. While on his way to work, Chris was struck by a negligent driver. After that incident, Chris decided to attend law school and fight for the rights of the injured as a Auto Accident Lawyer. He is passionate about upholding the rights of the injured and making society safer one client and one law suit at a time.

Chris has always been interested in Criminal Law, during his attendance at Old Dominion University he became convinced that the way our system is run, the conduct of state actors and injustice in the system require those that are capable to do something about it.

Early Life

Chris was born and raised in Lynchburg, Virginia where there is a great community. Lynchburg is a small city in Central Virginia placed at the foothills of the beautiful Blue Ridge Mountains. Chris graduated from Brookville High School in Campbell County, VA where he played defensive linebacker and was a captain for the varsity football team. Chris also recieved perfect scores on standardized history exams, the law is really a study of history.

Undergraduate School

Chris earned his Bachelor of Science from Old Dominion University in Norfolk, Virginia. Chris majored in Criminal Justice and minored in History. Chris made the Dean’s list during his time at ODU. He also briefly played for Old Dominions Club Rugby team as a flanker and recreational flag football teams. Chris enjoys competitive sports like football.

Law School

Chris attended Law School in Fort Lauderdale, FL at Nova Southeastern University, Shepard Broad College of Law. The beaches are nice in Fort Lauderdale. During his time at Nova, Chris earned the highest Honors in Pro Bono legal work for volunteering with MISSION UNITED Legal Aid Service of Broward County, a non-profit organization affiliated with the United Way. This organization was established to help Veterans with their legal needs. Chris also interned with the Broward County Public Defender’s office Homicide and Felony Departments.

After practicing for several years as an Attorney, Chris went on to get his Masters of Laws from Liberty University. While at Liberty Chris earned his LL.M. in International Legal Studies. Much of the curriculum centered around the study of International Human Rights. Human Rights Law is the cornerstone of must legal principles dating back to the origins of law.

Chris was humbly awarded the honor of being accepted to and attending the summer study abroad program at University of Oxford's Faculty of Law to study of International Human Rights. During his time at Oxford Chris learned a great deal about the international community and the experinces of other legal scholars in the home countries.

Chris loves the United States of America and our founding legal documents of law that center around Christian Biblical principles.

Flight School

After Law School, Chris attended several flight schools including North Star Flight Academy in Fort Lauderdale, FL. for his Private Pilots License, He then went on to Florida State College at Jacksonville: Cecil Field in Jacksonville, FL. for his Instrument Rating, Freedom Aviation in Lynchburg VA for his Commercial Pilots License and American Flyers in Morristown, NJ for his Flight Instructors certificate.

Hobbies

Chris’s favorite past-times include: Flying airplanesWalking the dog, exercising at the YMCA,  riding in the Jeep, and shooting skeet at Liberty University's beautiful facilities.

Education:

University of Oxford, Faculty of Law
International Human Rights Law

Liberty University, School of Law
Masters of Laws, LL.M.

Nova Southeastern University, Shepard Broad College of Law
Doctorate of Jurisprudence, J.D.

Old Dominion University
Bachelor of Science, B.S.

Associations, Certificates and Licenses:
Virginia Bar 2023-present
Florida Bar 2016-present
Washington, D.C. Bar 2019-present

United States District Court for the Middle District of Florida
United States District Court for the Southern District of Florida
Federal Aviation Airmen Certificate: PPL, Commercial Pilot, IR, CFI
Virginia Trail Lawyers Association

Chris White Lawyer, LLC. is a Lynchburg, Virginia Attorney Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube ChannelInstagramFacebookTwitterLinkedInTumblrBloggerReddit, 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

Lynchburg Auto Accident Attorney

There are several things you should do if you have been injured in an accident. If you have been in an auto accident, the first thing you should do is call the local authorities. The second thing you should do is call  a Lynchburg Auto Accident Attorney. I can provide you a free consultation (434) 660-9701

Take Photos:

After an accident, you should take photos. These photos will become useful for valuing any potential insurance claim for compensation. There is the old saying that "a photo is worth a thousand words" well... a photo may be worth a million dollars. Often, by the time it is time to value your potential insurance claim for compensation, the visual damages of the claim are far gone.

Photos of the scene:

For example, you should take photos of the scene. Sometimes, insurance companies will dispute liability. With that in mind, photos of the scene become important. With photos of the scene or how the vehicles were positioned and where, liability can become indisputable. We do not want the insurance company to later attempt to say the auto accident was not their liability.

Photos of the property damage:

Another example, is photos of the property damage. Photos of the property damage become important when we try to understand the impact of the vehicles along with other factors. For instance, if a vehicle was totaled the claim for compensation is likely higher. Other reason for photo of the property damage is to record the property damage.

Photos of the injuries:

Often, photos of the injuries are important to value the claim for injury compensation. Pain and suffering photos become important because we would need to document your healing. Bruises heal and if they are not photographed, then we will face issues on proving that you have bruising. In any event, if you have been injured in an auto accident you should call me. I am a Lynchburg Auto Accident Attorney.

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm available for free consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube ChannelInstagramFacebookTwitterLinkedInTumblrBloggerReddit, 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

What Does a Car Accident Lawyer Do?

A Lynchburg Car Accident Lawyer provides a service to the client to obtain the maximum compensation for their auto accident injuries. If you have been in an auto accident and have suffered injuries, you should call me for a free consultation at (434) 660-9701. Though I suggest calling me immediately after an accident, after notifying the authorities, some call me months later.

Waiting to contact a Car Accident Lawyer until later on can have a detrimental impact on your potential compensation. I can provide the service of communicating with the Insurance company for you, efficiently and effectively. A Lynchburg Car Accident Lawyer can make certain that your rights to any potential insurance policy are protected. We can also obtain the police crash report for you.

Insurance Companies:

Typically, insurance companies have three tactics they like to use when reducing a car accident victims claims. The insurance company can deny your insurance claim. They can out right say that they are not going to pay you anything for your insurance claim. Essentially, what they are saying is “come sue us.” They realize though that for that average person to sue an insurance company on their own is rarely a successful venture for the injured.

Why Hire a Car Accident Lawyer?

You should hire a car accident lawyer for several reasons. The primary reason is to get you the maximum amount you are entitled to from the insurance company. This is important because there are no two bites at the apple. Once you settle or sue an insurance company that’s it. You only get one recovery so you better make sure it is the most you can get, otherwise you may have some sort of unforeseen issue later on without any recourse or maybe not have been properly compensated for the negligence of others.

Another reason to hire a car accident lawyer is stress. Often the insurance process is stressful. Insurance companies ask for documentation and information, this can be very stressful. For many clients it is easier for them to just deal with one attorney instead of an insurance company.

A further reason to hire a car accident lawyer is knowledge, simply put, most car accident lawyers know the ins and outs of insurance companies and how to obtain maximum compensation from them. Many insurance companies will provide a client a better offer if a lawyer structures the settlement negotiations in a certain process way.

Lynchburg Virginia Car Accident Lawyer

The reasons to hire a car accident lawyer to handle your case are endless. Would you put your own cast on if you had a broken leg? Likely not. A Lynchburg Virginia Car Accident lawyer really pays for themselves. Just like most good legal representation, they pay for themselves in a sense. Because, you will likely not obtain the level of compensation without a car accident lawyer then if you had gotten one.

Contingency Fee Retainer

I typically work off a contingency fee retainer. In other words I do not get paid unless you do. This is because the way that representation is structured when suing an insurance company. For the most part insurance companies are large bank accounts with armed guards at the door not allowing you to make a withdraw of your own funds. You pay premiums for when something unconscionable occurs they should compensate you accordingly.

Chris White Lawyer, LLC is a Lynchburg Virginia 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 and Criminal Defense. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube ChannelInstagramFacebookTwitterLinkedInTumblrBloggerReddit, 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

 

If you have been in a Car Accident you should call me for a free consultation. I am a Car Accident Lawyer. My phone number is (434) 660-9701. One of the first steps after a Car Accident is to submit a DMV information request. I can provide this service as part of a contingency fee representation. In other words there is no fee unless we win.

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

Car Accident Lawyer

Auto Accident Attorney

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 ChannelInstagramFacebookTwitterLinkedInTumblrBloggerReddit, 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)

Motor Vehicle Accident Attorney

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