Harmful Changes Proposed to Virginia Injury Case Law
Virginia is one of the most business-friendly states in country, yet the Virginia Chamber of Commerce and other business lobby groups are looking to change several laws pertaining to how cases are handled before and during trail. I believe these changes will hinder, rather than enhance, our current judicial system as it relates to injury cases.
Virginia is one of only three states that practices the unforgiving rule of contributory negligence. This means that if the defense can show an injured party was negligent (did not use ordinary care) even in the slightest the injured party loses. With this system, if a jury found the injured party to be 1% at fault and the defendant 99% at fault, the injured person cannot financially recover for their injuries.
On the contrary, forty seven states in the U.S. use comparative negligence. In comparative negligence the jury compares the negligence of each party. In its most simple form, if the injured party was 1% at fault and the defendant 99% at fault and the case was worth $100,000, the injured party’s recovery would be reduced by 1% to $99,000.
The Virginia Chamber of Commerce wants to change the other rules, despite existing rules that greatly favor insurance companies. Contributory negligence favors insurance companies because insurance companies are most often behind the defense. For example, a defendant sued for a car accident is frequently represented and defended by the car insurance company to whom he pays a premium.
The changes proposed by the business lobby are to include use of depositions in summary judgment, abolishing the non-suit, restricting venues and shortening service of process deadlines. These reforms are being sought to restrict plaintiff’s (injured persons) access to juries.
Summary judgment is a method that the defense can use to ask the Judge to rule on a case and not let the case go to a jury. Currently, depositions are not allowed to be used in a summary judgment motion.
I am against allowing deposition in summary judgment for two main reasons. It increases the cost of an injured party to get to trial, and it greatly increase the time that the Court must invest in each civil case. Many cases have summary judgment motions and the Court reviews hundreds, if not thousands, of pages of deposition transcripts to make a ruling. Our judges are stretched thin as it is and this will increase already long waits for civil cases to be heard.
A non-suit is essentially one free “start-over” that each plaintiff gets. If something goes wrong with the case the plaintiff can file a non-suit and bring the case back within a six month period; the plaintiff has only one non-suit by right. A non-suit is one of the few advantages the plaintiff has over the defense. Often situations beyond the control of the plaintiff arise and a non-suit will give him, or her, the ability to correct a problem and proceed with a case.
Restricting permissive venues is a way to limit the places a person can bring his or her law suit. Currently a case can be brought where the accident occurred or where the defendant lives or regularly conducts business. Despite acknowledging that Virginia has more fair laws on venue than many states, the business lobby wants to restrict the laws further.
After a suit is filed a plaintiff has one year to serve papers to the defendants. The Chamber wants to restrict this to 90 days, despite the fact that any defendant can answer a suit without being served if they so choose. Restricting to one fourth of the current time allowed for service creates another potential road block for an injured person to bring their case.
The business lobby is well funded and well organized. Unfortunately, there is not a large constituency to stand up and protect individuals, particularly injured persons. Most people do not consider these laws until they are hurt. As a member of the Virginia Trial Lawyers Association, I try to make sure the playing field is level for my clients.
To find out how you can help, please contact me. My hope is that the General Assembly will see the current laws already favor the defense and that no further restrictions are needed.