Trial Tactics Workshop Slots Filling Fast, Legislative Update, Amicus Update, and more... 

VADA Defense Line
January 2024

PRESIDENT’S WELCOME

Greetings in what is surely the coldest part of the year so far, and hopefully for the rest of the year.  Stay warm, enjoy the snow, and take comfort that warm weather is only a few months away.  This weekend in Harrisonburg I can attest that it was apocalyptically cold and felt like the first ten minutes of the 2004 blockbuster “The Day After Tomorrow.”

On January 19, 2024, the Board of Directors had its first meeting of the calendar year.  We had a wonderful turnout in person and virtually owing to the weather conditions that made travel dicey west of Charlottesville.  It's good to see that we are starting to emerge from the gathering restrictions that had been in place during the pandemic and the flurry of activity that followed as dockets and caseloads returned to normal. There is truly no substitute for gathering together. 

In actuality, the start of the year is an exciting time for VADA members. On January 29th, we will be participating in the 3rd annual lobby day for VADA. Our legislative committee led by Patrick O'Grady and the legislative consultants from McGuire Woods Consulting have a day in store for us to foster connections with legislative leaders so that our voices can be heard on matters that are being undertaken by the General Assembly. If you are in the field of medical malpractice defense or policy coverage or auto and transportation defense, please pay special attention as bills affecting each of those areas have been introduced and are making their way through committees and subcommittees. If you are interested in participating in lobby day, please contact Patrick directly.

On March 15 and 16, we have the Young Lawyers Trial Tactics Workshop to be held on the campus of the University of Richmond. This workshop is an opportunity for young lawyers to conduct a mock trial before a sitting judge and with the benefit of coaching from experienced members of VADA.  Participants will work in pairs of two to present either the plaintiff or defense side of a hypothetical case.  Over the course of two days, they will work collaboratively with each other, their coaches, and the witnesses to organize the case and present it in trial.  Generations of VADA lawyers have participated in this exercise, and it is one of the hallmarks of our educational offerings.  Please go ahead and register as soon as you can to ensure a space.  Even if lawyer positions are taken up, young lawyers can participate as witnesses and observers and meaningfully participate.  If you have any questions, please contact me or Amy Gilbody, Director of Meetings.

We are also excited about the upcoming Spring Meeting that will run from May 1st to 3rd at the Virginian Hotel in Lynchburg.  Our sections are working on the educational presentations, as well as Wellness and public service opportunities. The women's section is also planning a dinner that promises to fill up quickly, so keep your eyes posted for announcements related to the meeting and activities. The Virginian is a new venue for our meetings, and we are excited about increasing our number of venues.

That brings us, of course, to the upcoming fall meeting which will be held for the first time in a long time at the Kingsmill resort in Williamsburg on October 23-25, 2024.  Mark your calendars!

James A. Cales III
VADA President 2023-24

March 15-16, 2024
Jepson Alumni Center
University of Richmond

Join our two-day mock trial, where the first 16 registered attorneys will be assigned as co-counsel for the plaintiff or defendant. The attorney slots fill fast, and the remaining registrants will play expert witnesses and provide feedback. Coaching, ahead of the event and on-site, will be provided by experienced members of the defense bar. Virginia judges will preside and provide constructive feedback throughout the trial.

Registration includes case file, all written materials, networking reception, continental breakfast, & box lunch. 

The attorney slots fill fast, so register now!

May 1-3, 2024
The Virginian Hotel
Lynchburg

The 2024 Session began on January 10. There are plenty of new faces in the General Assembly this year, and this is reflected in new leadership and committee membership. Senator Scott Surovell is the new Senate Majority leader, while Delegate Don Scott is the new Speaker of the House.

The Senate Courts of Justice Committee consists of Senators Scott Surovell (Chair), Mark Obenshain, Ryan McDougle, Creigh Deeds, Richard Stuart, William Stanley, Jennifer Boysko, Mark Peake, Lamont Bagby, Emily Jordan, Lashrecse Aird, Suhas Subramanyam, Jennifer Carroll Foy, Russet Perry, and Saddam Azlan Salim.

Meanwhile, in the House, membership of the Courts of Justice Committee includes Delegates Patrick Hope (Chair), Marcus Simon (Vice Chair), Vivian Watts, Rip Sullivan, Karrie Delaney, Michelle Maldonado, Phil Hernandez, Rae Cousins, Atoosa Reaser, Josh Thomas, Katrina Callsen, Karen Keys-Gamarra, Terry Kilgore, Jay Leftwich, Jason Ballard, Wren Williams, Amanda Batten, A.C. Cordoza, Jonathan Arnold, Will Davis, Joseph Obenshain, and Mark Early.

The members of the House Courts of Justice Civil Subcommittee are Delegates Marcus Simon (Chair), Rip Sullivan, Atoosa Reaser, Josh Thomas, Karen Keys-Gamarra, Terry Kilgore, Jay Leftwich, Jason Ballard, and Patrick Hope.

Several important bills that may be of interest to VADA’s members have been introduced this session. Among them are HB 272, HB 418/SB 259, HB 901, SB 86, and SB 256. 

HB 272 prevents an attorney from receiving more than 10 percent of any judgment awarded to a veteran, if the judgment is related to the veteran’s service.

HB 418/SB 259 allows for class action lawsuits to be certified by Virginia state courts. The Senate version of the bill also allows a court or jury, in an action for retaliation of an employer against an employee, to reinstate an employee to a similar position, lost compensation, reasonable attorney fees, and treble damages if the retaliation was willful.

HB 901 amends the current statute related to waiver of objections to clarify that a litigant need not make a motion to reconsider certain rulings in order to preserve the issue for appeal.

SB 86 amends the current spoliation statute to provide that if evidence for litigation was lost, concealed, or destroyed, and cannot be replaced, no finding of intent to lose, conceal, or destroy the evidence is required for a court to order remedial measures.

SB 256 creates a cause of action for bad faith against an uninsured or underinsured motorist carrier and allows for the bad faith claim to be litigated in a post-judgment motion within the personal injury case.

Other big issues facing the General Assembly this session include gaming, where legislators are taking up legislation concerning the legalization of slot-like skill-based games, and the new Washington Capitals and Wizards arena proposal in Alexandria. Legislation has also been introduced to raise the minimum wage and restore voting right to people with felony convictions. Finally, a constitutional amendment has been proposed that would enshrine abortion rights.

Brown v. Kirkpatrick-Court Issues Opinion Reversing the Decision of the Original Panel

John D. McGavin
McGavin, Boyce, Bardot, Thorsen & Katz

On December 19, 2023, the Court of Appeals of Virginia reversed the original panel of the court which addressed the issue of waiver of subrogation pre-trial.  The case arose from a motor vehicle accident and a jury award in April, 2022 to Michael Brown.  Mr. Brown had sued Timothy Kirkpatrick who was insured with State Farm.  State Farm had a policy of $50,000.  USAA had underinsurance.  As the case came up for trial, USAA agreed to waive subrogation so long as State Farm provided the defense and took the case through to trial.  The jury returned a verdict of $286,000, well in excess of State Farm’s policy.  USAA paid the underinsurance and then moved to mark the judgment as paid and satisfied.  The plaintiff objected, arguing that the waiver of subrogation by USAA caused the right of subrogation to essentially revert back to the plaintiff.  The trial court disagreed and ruled that the judgment should be marked as paid and satisfied.  Plaintiff Brown appealed and the Court of Appeals in a 2-1 decision ruled that the waiver extinguished the right of subrogation and allowed Mr. Brown to have the right to seek a double recovery and recover from Kirkpatrick the $236,000 that State Farm did not satisfy.  Essentially, plaintiff sought a double recovery.  In that original panel decision, the court held that the waiver reverted the right back to the plaintiff for subrogation.  The court also held that the payment by USAA was a collateral source which could not be considered in regard to mark the judgment as paid and satisfied.

This firm represented the interests of Timothy Kirkpatrick on appeal.  We were asked to take over the appeal after the original verdict.  After receipt of the panel Opinion, we filed a

Petition for Rehearing which was granted.  Then, the case was heard en banc before the entire panel of judges of the Court of Appeals.  The Opinion was entered on December 19, 2023 and reversed the original panel and affirmed the decision of the trial court.   Judge Huff wrote the Opinion for the court.  He determined that the subrogation right remains with USAA and their agreement with State Farm did not constitute a reversion or assignment of any right to the plaintiff.  Instead, he ruled that USAA still owns that right but has elected not to pursue it as was the agreement that was reached.  The court dismissed the collateral source argument on the grounds that collateral source is most typically applicable in circumstances where such evidence is being offered at trial.  In other words, it is an evidentiary standard more than anything else.

This is a significant Opinion and will be a published Opinion and much discussed.

John McGavin was the lead attorney on the appeal and presented oral argument before the original panel and then before the full en banc panel.  

The Women’s Section is thrilled to be hosting dinner at The Craddock Terry Hotel during the Spring Sections Seminar at the Virginian Hotel in Lynchburg. The dinner will be on May 2, 2024 at 6:45 p.m. More details to come!

If you are interested in joining the Women's Section email listserv, please reach out to Amy Gilbody. In the meantime, stay tuned for updates on next events! 

This Washington D.C. native is an avid reader and photographer, who loves the thrill of a jury trial.  Her advice to new lawyers?  Among other things, proofread! For this, and much more, on this month's VADA Spotlighted Member, click here.

Be sure to bookmark VADA Upcoming Events so you don't miss out.

January 29
VADA Lobby Day
Richmond

March 15-16
Trial Tactics Workshop
University of Richmond

April 12
Board Meeting
Richmond

May 1-3
Spring Sections Seminar
The Virginian, Lynchburg

May 31
Board Meeting
Virginia Beach

October 23
Board Meeting
Kingsmill, Williamsburg

October 23-25
Annual Meeting
Kingsmill, Williamsburg

December 6
Young Lawyers Boot Camp
Richmond

Missed A Webinar
or Meeting?

Did you know that many VADA Lunch & Learn webinars and online programs are available to watch on-demand? Click here to see the library of available content, which can be found in the members-only area of our website.

REGIONAL DIRECTORS

Introducing our Regional Directors for 2023-24! Beginning in the top row, from L to R, are: Blue Ridge, John Peterson of Hancock Daniel & Johnson; Capitol, Taylor Brewer of Moran Reeves Conn; Potomac, Britton Wight of Harman Claytor Corrigan & Wellman; Southwest, Chris Dadak of Guynn Waddell, P.C.; and Tidewater, Darlene Bradberry of the Newport News City Attorney’s Office.

Thank you to each of you for your leadership and your service to VADA!

Dues Renewals are underway for 2024! Our membership year runs from Jan 1 to Dec 31, so you should have gotten emailed reminders to renew today! If you did not, or if you have questions about your membership status, please reach out to Executive Director Sherma Mather for more information.

Please welcome our newest VADA members!

Tina Babcock
Babcock & Moore

Tracy Evans
Evans Oliver

Clint Hamilton
Virginia Department of Labor and Industry

Brittany Simmons
Dinsmore & Shohl

The term “wellness” is used to describe various aspects of physical and mental health.  In recent years it has become common to be personally involved in and aware of our physical and mental health.  Whether it is beneficial or not, the internet provides access to a wealth of information related to our health.  We can find information personalized to our health and general information on our overall well-being.   Thankfully, any stigma that accompanies paying attention to our mental health is evaporating.  These advances are positive, but it is also imperative to keep it all in perspective and to ensure that we are relying on accurate information.  More information is not always better, particularly when it is not tailored to who we are as individuals and what we need.  As we set wellness goals for 2024, let’s do so with proper guidance tailored to our own needs with the help of professionals if necessary.  Setting the right wellness goals will promote compliance and increase the likelihood of beneficial results.

Join our social media sites where we post current court updates, relevant legal developments, and much, much more!  

VADA’S Mission

The mission of the Virginia Association of Defense Attorneys is to develop and support Virginia attorneys engaged in a civil defense practice in the professional and ethical representation of their clients through education, communication and fellowship.

Virginia Association of Defense Attorneys
11533 Busy Street, #327
N. Chesterfield, VA  23236
804-649-1002 | www.vada.org

Executive Director: Sherma Mather
Director of Meetings: Amy Gilbody
Journal of Civil Litigation Managing Editor: Molly Terry

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