Wiley Law Offices, PLLC

Norfolk, Virginia | (757) 955-8455

Key Fob in Hand Leads to DUI Conviction

Under Virginia's DUI statute, Va. Code 18.2-266, it is illegal for "any person to drive or operate any motor vehicle, engine or train" while intoxicated. Several decisions of the Supreme Court and the Court of Appeals have confirmed that an intoxicated person may be considered to be "operating" a motor vehicle for DUI purposes if seated behind the wheel with the key in the ignition, even if the car is parked and not running and the person is asleep. 

A recent decision from the Fairfax Circuit Court as reported by Virginia Lawyers Weekly (subscription required) applies Virginia's broad definition of "operate" to a situation in which an allegedly intoxicated DUI defendant was found asleep behind the wheel of a parked car while holding a key fob in his hand. The particular car, a Nissan Murano, was designed to allow the use of electric accessories through pushing buttons on the key fob and could be started by pressing an ignition button as long as the key fob was nearby. Of importance, the radio lights of the Murano were on, although the car was not running. The court determined that, under Virginia's broad definition of "operate" under the DUI statute, that the defendant was "operating" the Murano by having turned on the radio lights by use of the key fob, leading to a DUI conviction.

Aside from the obvious risks from driving a car while intoxicated, people in Virginia should be very cautious with doing anything that could be considered "operating" a parked car after consuming alcohol, even if in a private driveway.  

Supreme Court of Virginia Clarifies Burden of Proof for Consumer Protection Claims

The Supreme Court of Virginia recently took the opportunity to clarify the burden of proof that a consumer must meet in a claim under the Consumer Protection Act. In the case of Ballagh v. Fauber Enterprises, Inc., the Court held that a consumer need only prove a violation of the Consumer Protection Act by a preponderance  of evidence, instead of the higher "clear and convincing" standard that would apply to a traditional common-law fraud claim. The impact of this ruling should prove beneficial to Virginia consumers seeking to hold businesses and others responsible for unfair or fraudulent commercial practices. 

Employee Social Media Privacy in the General Assembly

It's been a while since I've blogged; I hope to get back to posting more regularly about issues and developments of Virginia law that I find interesting. Today I see that the Virginian-Pilot is reporting that the House of Delegates has passed a bill providing some protection for employees and prospective employees regarding social media privacy. 

It looks like the bill would prohibit an employer or potential employer from requiring employees or potential employers to provide the employer with their social media passwords or user names. It would also prohibit employers from requiring employees accept friend or follow requests on social media. So, if the bill passes and eventually becomes law, it looks like you won't have to feel obligated to accept your boss's friend request on Facebook and you won't have to give him access to check out your Instagram selfies. 

Regardless, once something's out on the internet, it's out there forever and can easily be spread around outside of your social media accounts, so be careful out there with what you post.  

Insurance Coverage in Virginia

People and businesses purchase liability insurance to protect themselves and their assets against the potential of liability to others. Some types of liability coverage, such as car insurance, may be mandated by law while others, like homeowner's insurance, may be required by a mortgage company in order to qualify for a home loan. Without liability coverage, many people and businesses would not have the resources to defend claims made against them or to pay a verdict against them. Likewise, from the perspective of an injured person, liability insurance may provide them with a source of monetary compensation that may not exist were it not present. Liability insurance is vital not only to our justice system, but also to our economy as a whole.

From the insurer's perspective, the formula is simple--collect the greatest amount possible in premiums while paying out the least possible amount in defense costs, settlements and verdicts. Sometimes, insurers will claim a lack of coverage in order to seek to avoid covering the defense costs and/or liability of an insured. This can lead to a coverage dispute and, potentially, to a bad faith claim against the insurer.

In Virginia, even in situations where coverage is contested, an insurer may have a duty to defend its customer, even if there ultimately is no duty on its part to indemnify (i.e. pay an award against its insured) the customer. In other words, the standard for triggering the duty to defend is lower than the standard for a duty to indemnify. The insurer's duties are governed by the terms of the policy. Virginia law provides that ambiguities in policy language are to be interpreted in a manner so as to grant coverage. In examining the policy language, Virginia courts use the so-called "eight corners rule," meaning that only the allegations made against the insured and the provisions of the insurance policy are examined to determine whether coverage exists. 

Virginia law provides for the ability of a policy holder to sue their insurance company under a breach of contract theory if the insurer denies coverage in bad faith. Not every coverage dispute, even if ultimately decided in favor of the insured, will necessarily amount to a successful bad faith claim, as courts will look at various factors surrounding the denial including the reasonableness of the insurer's position and decision-making process. A successful plaintiff in a bad faith claim against an insurer may be entitled to compensation for their damages incurred due to the insurer's failure to act in good faith. Additionally, Virginia statutory law provides for the recovery of attorney's fees and costs associated with the insurance company's bad faith denial of coverage. 

If you find yourself in a position where you have been denied coverage for a claim made against you, please give me a call. I would be happy to discuss your potential rights with you.  

Big News!

As of August 1st, I will be practicing solely out of my Norfolk office. I will be closing my office in Charleston but will continue to represent clients in West Virginia. I look forward to continuing to build my practice in Tidewater and am very excited for this next stage of my career. 

"Pine Tree" Air Freshener May Provide Basis for Traffic Stop in Virginia

Do you have an air freshener hanging from your rear-view mirror? If so, you may be giving law enforcement in Virginia cause to pull you over. In a recent unpublished decision, reported here by Virginia Lawyer's Weekly (subscription may be required), the Court of Appeals upheld the conviction of a motorist for drug possession following a traffic stop instigated by an officer after observing an air freshener of approximately three inches tall and three inches wide and shaped like a pine tree hanging from the defendant's rear view mirror.

In upholding the validity of the stop, the Court of Appeals noted that Virginia law prohibits the hanging of any object from a rear view mirror that "obstruct[s] the driver's clear view of the highway through the windshield. Along with the alleged suspected statutory violation, the Commonwealth presented evidence of a standing "be on the lookout" directive for a vehicle similar to that which the defendant was driving, which in totality provided a reasonable basis for instigating the traffic stop. 

The unpublished decision may be read here. After the stop, the record is unclear as to whether the driver was actually cited for the air freshener. 

Punishment Versus Proportionality in Virginia Punitive Damages Decision

As reported by Virginia Lawyers Weekly (subscription may be required), a very recent decision of the Supreme Court of Virginia stemming from a car accident ruled that a punitive damages award of almost eighteen times greater than a compensatory damages award should have been allowed to stand by the trial court.

In the case of Coalson v. Canchola, two plaintiffs sued a drunk driver for injuries sustained in an auto accident caused when the defendant made a left turn across of the plaintiffs' path while talking on a cellular telephone. The defendant had a lengthy history of drunk driving and had been drinking most of the day of the accident. At one point during the day, the defendant had actually disregarded a police officer's advice not to drive and had his girlfriend temporarily drive in order to deceive the officer. At trial, one plaintiff was awarded $5,600.00 in compensatory damages plus $100,000.00 in punitive damages, while the other plaintiff received an award of $14,000.00 in compensatory damages, plus $100,000.00 in punitive damages. The trial court then granted remittitur and reduced the punitive damages on the $5,600.00 compensatory award to $50,000.00, from which that plaintiff appealed. 

In reversing the trial court's remittitur, the Supreme Court recognized that, in some situations, the need to punish a defendant for egregious behavior as well as the potential harm the behavior could have caused outweighs proportionality, The punitive damages award did not "shock the conscience" and was not unconstitutionally out of proportion to the compensatory award, due to the defendant's extreme behavior. As there are no rigid rules setting a proportionality ratio in Virginia (aside from the $350,000.00 punitive damages cap), and as the Court found that comparison of verdicts is not probative of whether a punitive award is excessive, the Court reversed the remittitur and reinstated the $100,000.00 punitive damages award.    

Virginia Bill to Tighten Time Frame for Rulings in Civil Cases

The General Assembly has recently passed a bill tightening time frames for circuit judges to issue rulings in civil cases, as reported by Virginia Lawyers Weekly (subscription required). The bill would shorten the time for a circuit judge to make a decision from ninety to sixty days and would make clear that the time frame applies to any issue in a civil case pending decision, not just final decisions. In the event that a judge holds a matter under advisement for more than sixty days, he or she would be required to issue a written report to the parties stating when a decision will be issued.

Virginia Bill Regarding Power of Homeowners' Associations to Assess Fines Not Set Out in Declaration

According to the Washington Post, the General Assembly is advancing a hotly-debated bill that would allow for Virginia homeowners' associations to levy fines for rule violations on the part of homeowners, even if no schedule of fines is set forth in an association's declaration. Under the bill, unless a homeowners' association's declaration specifically prohibits fines, the association will be able to assess fines against residents for rule violations at a rate of $50.00 or at $10.00 per day for ninety days for continuing violations. If the bill becomes law, it could significantly empower homeowners' associations in Virginia, especially those older associations that may not have declarations allowing for fines.  

Virginia's New Attorney General Will Not Oppose Challenge to Same-Sex Marriage Ban

Virginia's new attorney general, Mark Herring, has announced that his office will no longer defend the Commonwealth's ban against same-sex marriage. While perhaps not completely surprising, the move would seem to underscore the rapid political shift ongoing in Virginia. A link to the Virginian-Pilot's article can be found here.

Virginia Bill Seeks to Simplify Admission of Business Records

House Bill Number 301, recently introduced in the House of Delegates, would streamline the admission of records at trial in circuit court subject to the business records hearsay exception. The bill would allow for the authentication of records by use of a certificate of authentication to be provided to opposing parties, subject to objection. If enacted, the bill would make the process of authenticating records much simpler and more efficient and would potentially lessen costs borne by litigants to secure authenticating testimony. Bill 301 would seem to be of particular interest to personal injury plaintiffs, as it has potential to reduce time and expense associated with authenticating medical and billing records.

An Extremely Basic Post on Virginia Premises Liability Law

After writing my last post about West Virginia's recent abolition of the "open and obvious" doctrine, I thought that I would post a very quick discussion of premises liability law in Virginia. 

Basically, Virginia's courts generally apply traditional common-law distinctions between various classes of persons entering onto premises for the purpose of ascertaining whether there is any liability. The level of duty owed to a person entering onto a premises varies depending on whether the person is a trespasser, licensee (which generally includes purely social guests) or invitee (which generally includes people invited onto the premises for business or other purposes, like customers in a grocery store). Premises occupiers or owners generally owe the least duty to trespassers and the highest duty to invitees. Depending on circumstances, a person's status can change in the course of a single visit, such as trespasser becoming a licensee if the property owner assents to his or her presence. Virginia additionally still applies the open and obvious doctrine as a bar against a plaintiff's recovery if the hazard is open and obvious.

The determination of whether an injured person is a trespasser, licensee or invitee and whether a duty was present and breached can be tricky to navigate and will be dependent on the specific facts and circumstances present in each case. The body of law is much more complex than alluded to in this very brief post. For this reason, it is a good idea to consult with a lawyer as to the strengths and weaknesses of any potential slip-and-fall, trip-and-fall or other premises liability claim.  

The Open and Obvious Doctrine is Abolished in West Virginia Premises Liability Cases

In a recent opinion, the West Virginia Supreme Court of Appeals has abolished the common-law "open and obvious" doctrine as an absolute defense in premises liability cases. This represents the latest step in the evolution of premises liability law in West Virginia. The decision, filed November 12, 2013, is styled Hersh v. E-T Enterprises, L.P. and the slip opinion may be found here.
In Hersh, the plaintiff fell down a stairwell that lacked handrails in a commercial parking lot. He claimed that the defendant possessor of the property was prima facie negligent due to a local ordinance requiring handrails, while the defendant argued that the lack of handrails was an open and obvious hazard for which the plaintiff could not recover. Applying the open and obvious doctrine, the circuit court granted summary judgment in favor of the defense, which the plaintiff appealed. 

In reversing the circuit court and abolishing the long-standing open and obvious doctrine, the Court has essentially applied more recently-evolved concepts of foreseeability as the ultimate test of premises liability, as well as West Virginia's prior shift to comparative, as opposed to contributory, negligence. Now, with this evolution of the law, the extent to which a hazard is open and obvious to an injured plaintiff is a consideration to be taken into account when apportioning negligence in trip-and-fall, slip-and-fall and other premises liability claims in West Virginia. 

Supreme Court of Virginia OK's Tunnel Tolls

The Supreme Court of Virginia has overturned a prior circuit court decision finding that proposed tolls on the Downtown and Midtown Tunnels between Portsmouth and Norfolk are unconstitutional. With the Court's ruling, VDOT and Elizabeth River Crossings will be able to proceed with toll collection beginning February 1, 2014.

A copy of the Court's ruling can be found at this link to the Virginian-Pilot's article about today's decision.

Preview of Upcoming U.S. Supreme Court Term

The United States Supreme Court is beginning a new term, during which it will hear and decide several cases. As is often the case, it appears that the Court will be ruling upon several hot-button political issues including campaign finance and affirmative action. The Court will also be hearing cases involving questions of civil procedure and criminal law. Courtesy of the Georgetown University Law Center, a very thorough preview of the cases to be heard this term may be found here.

A General Reminder

In reviewing my last several posts, I've realized that the format of my blog, and my site in general, places my disclaimer at the bottom of the page. As my posts increase in number, the bottom of my blog page becomes more and more distant for those who may visit. So, I decided to take the opportunity just to offer a reminder that this blog is just meant to be an outlet for me to post quick discussions of various legal matters. My posts may be inspired by an area of law I'm working on at the moment, something in the news or just something I find interesting feel like discussing. My posts are not intended to be exhaustive on any given subject and should not be considered any sort of advice. And, yes, since this blog is part of a website advertising my services, it should be considered advertising material and the fact that I'm posting general legal information on this publicly-available website does not create any attorney-client relationship between me and anyone who stops by to read.

Most of my posts deal with Virginia or West Virginia law, since those are the states where I am admitted to practice, although I may occasionally post about other items of interest. If you have found this blog in a quest to find information about a legal issue you may be facing, please don't rely upon my posts as providing definitive answers, as they are meant just to be very basic discussions of general principles of law. Every situation is unique and may be more complex than first meets the eye. If you're facing a legal problem, by all means consult a lawyer and don't rely on a blog post. If your legal issue is in the Charleston area or in Hampton Roads, I'd be happy to consult with you to see if I can help. You're welcome to call or email me at any time. Thank you for reading.

The "Bowman Exception" to Virginia's Doctrine of At-Will Employment

Last week I wrote a post about a very specific and limited type of employment discrimination claim recognized in Virginia--the whistleblower protection provisions of the Virginia Fraud Against Taxpayers Act. Today's post takes a step back to provide a very broad overview of the "Bowman exception" to Virginia's general adherence to the doctrine of at-will employment.

In 1985, the Supreme Court of Virginia decided the case of Bowman v. State Bank of Keysville, in which the Court found that there exists a public policy exception to the at-will employment doctrine. Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985). In Bowman, the plaintiffs, who were also shareholders of the defendant, alleged that they had been terminated for refusing to vote their shares in favor of a merger supported by their managers. In evaluating the plaintiffs' claims, the Court determined that the terminations were in violation of public policy contained within Virginia's statutes regarding corporations and shareholders' rights and, therefore, provided an exception to the general at-will employment doctrine. 

In the nearly thirty years since Bowman, the courts have continued to define and apply the public policy exception to specific scenarios. The exception has been defined as "narrow." City of Virginia Beach v. Harris, 523 S.E.2d. 239 (Va. 2000). Viable Bowman claims for wrongful discharge are limited to three factual circumstances:

1. The employer violates a public policy enabling the exercise of an employee's statutorily-created right;

2. The public policy violated by the employer is explicitly expressed in a statute and the employee is clearly a member of the class of persons directly entitled to the protection enunciated by the public policy; or

3. The discharge is based upon the employee's refusal to engage in a criminal act.

Rowan v. Tractor Supply Co., 559 S.E.2d 709 (Va. 2002). 

Application of the three recognized public policy exceptions will continue to evolve as new cases and new theories come before the courts and as legislative changes to the Code of Virginia are made. For now, it should be kept in mind the the Bowman exception is narrow and does not automatically provide for a viable claim in every situation even where a policy concern may be involved. 

Employee Whistleblower Protection Under the Virginia Fraud Against Taxpayers Act


In employment law, Virginia adheres very strongly to the traditional doctrine of "at-will employment," which essentially means that, absent an employment contract, employers or employees are generally free to sever the employment relationship at any time and for almost any reason. However, over the years the courts and the General Assembly have carved out a few exceptions to the at-will employment doctrine, one of which is set forth in the Virginia Fraud Against Taxpayers Act.

The Virginia Fraud Against Taxpayers Act ("VFATA"), as set forth at Va. Code Ann. §§ 8.01-216.1 through 216.19, provides for liability for any person or entity who presents a false claim for payment or who generally otherwise acts to defraud the Commonwealth. Claims under VFATA may be asserted directly by the Commonwealth or by private persons under a "qui tam" procedure. 

How does VFATA apply to employment law? The Act contains a specific allowance for employees, contractors or agents to file lawsuits against their employers if they are "discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against" by their employer due to either (1) lawful acts in furtherance of an action under VFATA; or (2) other efforts to stop on or more violations of VFATA. In other words, an employer can be held liable to its employee, contractor or agent if the employer discriminates against that person due to efforts to cooperate in or bring an action under VFATA or for making efforts to stop the employer from acting to defraud the Commonwealth. A prevailing plaintiff is entitled to reinstatement, double the amount of lost back pay incurred (with interest) and compensation for any other special damages incurred, including litigation costs and attorney's fees. As of 2011, an in response to the Supreme Court of Virginia's ruling in Ligon v. County of Goochland, 689 S.E.2d 666 (Va. 2010), the whistleblower protection provision was amended to allow for a waiver of sovereign immunity, thus opening the door for public employees to sue for employment discrimination under the Act.   

The Right to Sue a Health Care Provider in Virginia and West Virginia for a Breach of Confidentiality

The records kept by health care providers, like doctors and hospitals, often contain patient information that, if released into the wrong hands, has the potential to cause patients a great deal of embarrassment, humiliation and even economic damage. On the federal level, most health care providers are subject to the "privacy rule" of the Health Insurance Portability and Accountability Act of 1996, better known as "HIPAA." HIPAA has become fairly well-known for its protection of the confidentiality of medical records. Under HIPAA, a covered health care provider can be subject to administrative fines or even criminal sanctions for improperly disclosing medical records or other protected health information, with the severity depending on the circumstances. However, HIPAA does not actually provide for the right of the patient actually affected by the breach of confidentiality to seek recourse for his or her damages.

In West Virginia, the Supreme Court of Appeals held in the 2012 case of R.K. v. St. Mary's Medical Center, Inc. that HIPAA does not prevent a patient from suing a health care provider for the improper disclosure of confidential records or information under West Virginia's common law. The decision in this case allows for the actual injured party, the patient, to hold health care providers accountable for breaches of confidentiality and to recover damages for the disclosure of their sensitive information.  

In Virginia, the courts have also recognized the right of a patient to sue a health care provider for a breach of confidentiality, as discussed in the 1997 case of Fairfax Hosp. by and through INOVA Health Sys. Hosps., Inc. v. Curtis. Although the Supreme Court of Virginia did not discuss the effect, if any, of HIPAA on the private right to sue based upon a breach of confidentiality in Curtis, a bankruptcy court for the Eastern District of Virginia has, in a case alleging damages based upon the disclosure of confidential health information in a public bankruptcy pleading, noted the viable co-existence of the cause of action recognized in Curtis with HIPAA. See Maple v. Colonial Orthopaedics, Inc., 434 B.R. 363 (Bankr. E.D. Va. 2010). The Curtis decision was also cited by the West Virginia Supreme Court of Appeals in the 2012 decision discussed above as an example of a state recognizing common law claims for the wrongful disclosure of medical information.

Evidence of Admission of Intoxication Allowed in Virginia Dog Bite Case


A Chesapeake circuit judge has ruled that a plaintiff's admission to an animal control officer after incurring injuries from a dog bite that she was intoxicated at the time of the biting incident and wasn't sure if she had tripped over the dog at issue, an Akita in this case, are admissible at trial. The court additionally deferred ruling on whether the defense could introduce expert testimony of whether dogs are stimulated by the smell of alcohol on a person. The story can be found here. Above is a photo of a black-and-white Akita.

The Federal Tort Claims Act

U.S. Capitol at Night

Traditionally, the doctrine of sovereign immunity has barred citizens and businesses from suing the government for personal injuries or property damage. However, over the years, this rule has been softened by the enactment of statutes providing exceptions and allowing claims to be asserted against the government in some cases. While each state will have its own laws regarding when and how claims can be made against it, the federal government has enacted the Federal Tort Claims Act, which authorizes some claims to be made against it and provides a procedure to follow.

There are many exceptions to the Federal Tort Claims Act to which sovereign immunity still applies. Generally, you may be able to assert a claim under the FTCA if you have been injured through the negligence of some federal employees or due to the condition of federal property, like a fall in a office of a federal agency. Not all claims are allowed by the FTCA and it is important to speak with a lawyer to understand your rights.

Under the FTCA, a claimant has a two-year statute of limitation to file a claim with the responsible federal agency. The Department of Justice has designed a form, called a Standard Form 95, that can be used to give notice of a claim. Claims should be accompanied by as much documentation as possible and the amount of the claim must be clearly spelled out.

Upon receipt of the claim, the government has six months to make a decision as to whether to pay the claim, reject the claim or negotiate a settlement amount. If the government refuses the claim or is unwilling to settle the claim for an acceptable amount, the claimant then has six months from the ruling to file a lawsuit in the appropriate federal district court. If the government fails to issue a ruling within its six-month time frame, the claimant may either continue to wait or go ahead and file a lawsuit. 

The FTCA process can be tricky. If you believe that you have a claim for personal injuries or property damage against the federal government in or around Charleston or Norfolk, please contact me to discuss your rights.

Daily Legalese: Prima Facie

"Prima facie" is a Latin term meaning "at first sight." See Black's Law Dictionary, 498 (Pocket Ed. 1996). In law today, it is generally used to describe something that apparent or clear upon first glance.

Daily Legalese: Voir Dire

"The Jury" by John Morgan (1861)"Voir Dire" is descended from an old French term meaning "to speak the truth." See Black's Law Dictionary, 1605 (8th Ed. 2004). Today, it most commonly refers to the process of selecting jurors in civil or criminal trials through questioning by the judge and/or counsel with the purpose of determining whether potential jurors have any biases, beliefs or conflicts of interest that may prevent them from fairly hearing the evidence and making a decision. It can also refer to the preliminary questioning of witnesses in some circumstances. The voir dire process is a very important part of the process of a jury trial. 

Daily Legalese: In Pari Materia

In pari materia is a Latin phrase meaning "relating to the same matter or subject" or "loosely in conjunction with." See Black's Law Dictionary 318 (Pocket Ed. 1996). It generally refers to the interpretation of statutes by looking to other statutes regarding the same subject or issue. 

Daily Legalese: Per Se

Per se is a Latin phrase meaning "of, in or by itself; standing alone without reference to additional facts." Black's Law Dictionary 1178 (8th Ed. 2004). 

Daily Legalese: Motion Craving Oyer

The motion craving oyer is a personal favorite, since it is just a fun thing to say or write. Motions craving oyer stem from the old English custom of "oyer," which basically meant having a deed or similar document read aloud in court. The motion craving oyer is a descendant of this practice and is still in use in Virginia civil litigation. Basically, if a defendant is sued and the claim is based upon a deed, written contract or similar document, the defendant can make a motion craving oyer asking the court to require the plaintiff to provide the document and incorporate it into the initial pleadings. Although motions craving oyer are still used in Virginia, they are no longer recognized in most jurisdictions, including West Virginia and the federal court system. Accordingly, most litigants and lawyers outside of Virginia may never get the chance to satisfy their cravings for oyer.

Daily Legalese: Standing

The term "standing" has been in the news today with the highly-publicized rulings of the U.S. Supreme Court on same-sex marriage. In the case of Hollingsworth v. Perry, SCOTUS declined to rule on a lower court's invalidation of California's constitutional amendment banning that state from applying the term marriage to same-sex unions, known popularly as Proposition Eight after the 2008 ballot referendum leading to its enactment. In a 5-4 decision, an ideologically-eclectic coalition of justices held that the appellants in the Hollingsworth case, members of an activist group who under California law sought and obtained the inclusion of Proposition Eight on the ballot, did not have standing to appeal the lower court's invalidation of the amendment when the state declined to do so. Because the petitioners did not have standing to appeal, SCOTUS did not decide the legality of the amendment, which would potentially have national impact on other states, and simply let the lower court's invalidation remain in place, affecting only California.

So, what is "standing"? The general definition is that standing refers to "a party's right to make a legal claim or seek judicial enforcement of a duty or right." See Black's Law Dictionary 1442 (8th Ed. 2004). In determining that the petitioners in Hollingsworth did not have standing to bring the controversy to SCOTUS for decision on the merits, the Court found that the petitioners' mere interest in the validity of the California amendment was insufficient, but that they personally needed to show actual direct injuries, or immediate danger of direct injuries, as a result of the invalidation of the amendment, as opposed to generalized grievances or disagreements. Without standing, SCOTUS found that there was no actual "case or controversy" jurisdiction under Article III of the U.S. Constitution, meaning that it could not issue a decision on the merits. 

Although in practice sometimes much more complex than this basic definition, "standing" means that, in order to take a controversy to court, a party must have some actual injury or right at stake. It is not enough to simply generally disagree with a action or a law. This doctrine helps to prevent courts from overstepping their bounds into acting in a legislative function and helps to preserve the separation of powers necessary to our system of governance.   

Daily Legalese: Locus Delicti

Welcome to a new feature of my blog, the Daily Legalese. The language of law has evolved over the centuries and is made up of words and phrases based in Latin and French, as well as English. Every day, or as close to it as possible, I'm going to select a word or phrase, sometimes randomly, sometimes not, and post a definition and occasionally my own notes. Some of the words will be archaic, while others will be topical and in prominent use today. Today's inaugural phrase is:

locus delicti -- Latin for "place of the wrong." It refers to the place where an offense was committed; the place where the last event necessary to make the actor liable occurred. See Black's Law Dictionary 959 (8th Ed. 2004).

Supreme Court Defines "Supervisor" For Use in Determining an Employer's Liability in Workplace Harassment Cases

U.S. Supreme Court

The United States Supreme Court has today adopted a strict definition of "supervisor" for use in determining an employer's liability in certain workplace harassment cases. In Vance v. Ball State University, the majority decided to adopt a narrow definition of "supervisor" as being a person empowered by the defendant employer to take "tangible employment actions" (such as hiring, firing, promotion or demotion, etc.) against the plaintiff to a workplace harassment claim under Title VII of the Civil Rights Act of 1964. Under existing case law interpreting Title VII, an employer's liability for workplace harassment may be dependent on, among other things, whether the harassing employee was a supervisor or a co-worker.  

Two New U.S. Supreme Court Criminal Case Decisions


While many continue to await the U.S. Supreme Court's pending decisions in hot-button, politically charged cases involving gay marriage and the Voting Rights Act, the Court has issued today a couple of decisions involving criminal law and procedure.

In Salinas v. Texas, the Court, with Justice Alito writing for the majority and Justices Thomas and Scalia agreeing in a concurring opinion, ruled in a 5-4 decision that the use by prosecutors of a defendant's silence in response to one potentially-incriminating question during a non-custodial interview with police did not violate the defendant's Fifth Amendment privilege against self-incrimination, after the prosecutors referred to the defendant's previous silence at trial, because the defendant did not specifically invoke his Fifth Amendment rights at the time of the question.

The Court additionally overruled a 2002 decision regarding the interplay between elements of a crime and sentencing factors. In Alleyne v. United States, a Federal jury found that, among other crimes, a defendant had "used or carried" a firearm in conjunction with a crime of violence. The applicable statute regarding the use of a firearm in relation to a violent crime provides a minimum sentence of five years for "using or carrying" and a minimum sentence of seven years if the firearm is "brandished." After the jury found that the defendant had "used or carried" a firearm, the pre-sentence report stated that the defendant had indeed "brandished" his weapon, thereby triggering the seven-year minimum sentence. The district court and the Fourth Circuit Court of Appeals found that the alleged "brandishing" simply constituted a sentencing factor. The Supreme Court, with Justice Thomas writing for the majority, disagreed and held that the Sixth Amendment requires any that any fact that increase any mandatory minimum sentence be considered an element of the charged crime, for which a defendant has a right to a jury trial.

"Law-yer" or "Loyer"?

Lawyer Pronunciation Map

If you needed legal representation, would you hire a "law-yer" or a "loyer"? According to this map, your pronunciation likely depends on your location. The pronunciation "loyer" is prevalent throughout most of the country, with "law-yer" used more throughout the south and parts of the plains states.

Personally, I believe that I use the "law-yer" pronunciation. "Law-yer" appears to be the predominant pronunciation throughout southern and central West Virginia and east into Virginia, with "loyer" gaining more popularity into Hampton Roads, northern Virginia and northern West Virginia, all of which appear to be split between pronunciations.

How about you?  

U.S. Supreme Court Upholds Arbitrator's Interpretation of Scope of Arbitration Agreement

A New Jersey doctor entered into a contract with a health plan to provide health care to its insureds. Included in the contract was an arbitration agreement which, in part, stated that “No civil action concerning any dispute arising under this Agreement shall be instituted before any court," with any such disputes to be subject to arbitration. The doctor than attempted to sue the health plan in state court, alleging that it had not paid him and a class of other physicians money that they were owed under the contract. The health plan was successful in compelling arbitration and taking the dispute out of the state court system. Ultimately, although not specifically referenced in the arbitration agreement, the arbitrator interpreted the agreement to require that class actions, as a type of "civil action," be arbitrated and thus removed from the potential purview of a jury. Because of this interpretation, the arbitrator further found that, although they would not be able to take their case before a jury, the agreement did allow for the doctors to arbitrate as a class.

In a decision issued today, the U.S. Supreme Court upheld the arbitrator's decision, finding that it fell within the scope of an interpretation of the parties' intent in entering into the contract and arbitration agreement. In reaching its decision, the Court referenced the high burden of overturning an arbitrator's decision based not on wrongness or error, but on whether the arbitrator exceeded the scope of his or her powers granted under the arbitration agreement. In sum, today's decision tends to fall in line with the generally broad and inclusive interpretation given the Federal Arbitration Act and deference given to the decisions of arbitrators. 

Disclosure of Automobile Insurance Policy Limits in Virginia and West Virginia

If you have been hurt in an automobile accident in Virginia or West Virginia for which you were not at fault, both states have enacted statutes in recent years that may allow you to find out the amount of liability insurance the at-fault driver may have to cover your damages.

Under a Virginia statute enacted in 2008, a person injured in a motor vehicle accident, or that person's lawyer, may request a disclosure of liability insurance policy limits from the insurer of any other person who may have been at fault upon the provision of documentation regarding the accident and monetary losses such as medical bills and lost wages. If the requirements of the statute are met and the documented monetary damages exceed $12,500.00, the insurer must disclose policy limits in writing within thirty days.

In 2012, West Virginia adopted a statute very similar to Virginia's motor vehicle accident insurance disclosure statute, with the exception that no minimum amount of documented damages are necessary to compel a policy limits disclosure. 

If you have been hurt in a motor vehicle accident and wish to speak to a lawyer, please contact me at (304) 340-0026 in Charleston or (757) 955-8455 in Norfolk and I will be happy to work with you to determine whether I can help you pursue fair compensation for your damages. 

U.S. Supreme Court OK's DNA Collection from Arrestees


In a 5-4 opinion authored by Justice Kennedy and over a spirited dissent authored by Justice Scalia, the U.S. Supreme Court has held that the collection of DNA samples from persons arrested for "serious offenses" does not constitute an unreasonable search and seizure under the Fourth Amendment to the U.S. Constitution. The majority and dissenting opinions in the case, entitled Maryland v. King, 569 U.S. ___ (2013), can be found here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf.

Essentially, the Court's opinion opens the door for expanded national collection of DNA samples via mouth swabs from persons arrested for serious crimes, in much the same manner as arrested persons are routinely photographed and fingerprinted. As occurred in King, the DNA samples may then be compared to DNA samples on file associated with prior crimes (the DNA samples taken from Mr. King in conjunction with his assault arrest resulted in his indictment and conviction for a rape several years earlier). 

As noted in the majority opinion, currently all fifty states require DNA samples be taken from, at the minimum, persons convicted of certain felonies. Twenty-eight states and the federal government authorize DNA samples to be taken from some or all persons arrested.  

In West Virginia, DNA samples are to be taken from persons convicted (or found not guilty by reason of insanity or mental defect) of certain felonies, or any other crime for which they would need to register as a sex offender. The DNA is then to be kept in a database and can be used for various purposes and in concert with other states or the federal government. A link to the West Virginia's "DNA Database and Databank Act of 1995," codified at W. Va. Code §§ 15-2B-1, et seq. may be found here: http://www.legis.state.wv.us/wvcode/code.cfm?chap=15&art=2B. A 2012 legislative effort to expand DNA collection to arrestees failed. 

In comparison, Virginia law allows for the taking of DNA samples from persons arrested for violent felonies. See Va. Code 19.2-310.2:1, available at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-310.2C1. In a the 2007 case of Anderson v. Commonwealth, the Supreme Court of Virginia upheld the taking of DNA samples from an arrested individual, and its subsequent use in his conviction for a years-old rape, under reasoning very similar to the decision in King. Anderson may be read at http://www.courts.state.va.us/opinions/opnscvwp/1062051.pdf.

With the Supreme Court's decision in King, as well as federal grant incentives for states to expand DNA sample acquisition contained in the recently-signed "Katie Sepich DNA Collection Act," it is likely that increased DNA sampling will soon spread nationwide and that West Virginia will eventually join Virginia in requiring expanded DNA collections.


Welcome to my blog. This is my initial post; I hope to update regularly with posts about West Virginia and Virginia law. Check back regularly!