Bad dog

The pit bull that belonged to the son of Elsie Campbell was a bad dog all right.

So bad, in fact, that Campbell wouldn’t get out of her car when she went to the house that she owned and allowed her son to live in rent-free. When Campbell stayed in the car, the dog would bite the tires of the vehicle. Knowing that the dog had bitten someone, Campbell told her son to get rid of it.

Predictably, the dog seriously mauled a friend of the son at the house, and the friend sued. The jury awarded him $175,000 in damages from the estates of Campbell and her son.

The Supreme Court of Virginia awarded Campbell an appeal, but affirmed the verdict today in an unpublished order, King, executrix v. Meyer, Record No. 070570. She had failed to object to an instruction aimed at establishing the duty of a property owner to protect a licensee from a known danger, the court said. Under Rule 5:25, it couldn’t consider that assignment of error, the court held.

The court also found the evidence sufficient to support the verdict. “Campbell was aware that the dog had previously bitten someone. Campbell’s knowledge of the dog’s dangerousness was confirmed when she demanded the removal of the dog from the premises. Campbell was aware of the violent tendencies of the dog and did not remove the dog or post any warning signs.”

Bill would give early disclosure of policy limits

The Virginia Trial Lawyers Association appears likely to get one of its principal legislative objectives for the year.

House Bill 172 allows plaintiffs’ attorneys to get the policy limits of a potential defendant before filing suit. The VTLA had to give a little, however. It accepted an amendment that would attorneys must give the insurer proof of medical bills or lost wages totaling at least $12,500 before the policy limits must be disclosed.

The measure cleared the House by a 55-43 vote before the $12,500 provision was added and passed 15-0 in the Senate Courts of Justice Committee yesterday. Chris LaGow, a lobbyist for insurers, said they did not oppose the bill.

VTLA President Chuck Zauzig said the measure is a common sense proposal that will let everyone know the practical limits of recovery and encourage early settlement.

Policy limits bill clears committee

Plaintiffs’ attorneys would be able to get the policy limits of a potential defendant without filing suit under House Bill 172, which cleared the House Courts of Justice Committee Friday on a 19-3 vote.

Steven W. Pearson, a lobbyist for the Virginia Trial Lawyers Association, told the panel that the measure “will reduce unnecessary lawsuits” because plaintiffs’ attorneys will be able to make demands appropriate to the level of coverage before filing suit.

The bill had been amended to the satisfaction of insurers, the bill’s sponsor, Del. Terry G. Kilgore, R-Scott, told the committee. However, Robert N. Bradshaw Jr., a lobbyist for the Independent Insurance Agents of Virginia, opposed the bill. He said agents and insurers have told policyholders that they consider the information private and proprietary. Now, they will have to tell those policyholders, “We keep it private unless a lawyer wants to sue you,” Bradshaw said.

Damages: First see the jury, then apply the cap

Personal injury defendants enjoy the protection of certain caps on damages in Virginia. At times, defendants have been able to invoke that protection sooner, rather than later, by getting trial courts to reduce ad damnum clauses to cap levels before a case ever goes to the jury.

But the Supreme Court of Virginia today rejected one such effort to cut to the chase. In Torloni v. Commonwealth (VLW 007-6-090), a unanimous high court reversed a Fairfax Circuit Court decision that trimmed a woman’s pretrial request for damages from $1.5 million to $100,000, the statutory cap under the Virginia Tort Claims Act.

Passenger Suzanna Torloni, who was injured in an auto accident, sued the commonwealth for faulty road maintenance. The Fairfax court granted the commonwealth’s motion to reduce Torloni’s ad damnum, then dismissed the case altogether. Torloni already had settled her claim against the tortfeasor for $100,000, and the credit the commonwealth received under Va. Code § 8.01-35.1 meant it was “effectively insulated” from liability, the trial judge reasoned.

The trial court erred in reducing the ad damnum before a jury verdict, wrote Justice Donald W. Lemons, and erred in interpreting the cap and credit statutes.

Here’s the right order in a suit against the commonwealth, according to Lemons: If the jury returns a verdict in excess of $100,000, the trial court reduces the verdict by the amount received from the settling tortfeasor, and then applies the $100,000 limitation on the commonwealth’s liability.

Acceptance of check moots suit

By accepting a $2,000 check from the defendant to cover medical bills, the plaintiff is not entitled to the $800,000 he later sought in a personal injury lawsuit.

A Rockingham County Circuit Court jury returned a defense verdict in the case of Shifflett v. Shifflett, based on accord and satisfaction.

The suit stemmed from injuries received at a party attended by both Shiffletts (relation undetermined). While swinging a beer bottle, the defendant accidentally struck the plaintiff in the face and broke his tooth.

In an out-of-court meeting shortly after the incident, the defendant, along with his ex-wife, issued a $2,000 check to cover the estimated cost of a tooth implant. "Dentist bill" was noted in the memo line. The plaintiff took the money, then went on to file suit, alleging $3,970 in dental bills in addition to disfigurement and pain and suffering.

Liability was not contested at trial. However, the defense successfully argued that the plaintiff had already settled the dispute by accepting his payment.

Jason J. Ham and Jason A. Botkins of Harrisonburg served as counsel for the defendant.

Look for details of this case and others in the Verdicts & Settlements section of the upcoming June 11 edition.