Opinion Digests
Traffic Offenses - Bifurcated Trial ‘Notice’ DNA in Traffic Court
By Deborah Elkins
July 2, 2009
Virginia’s bifurcated trial statute did not require prosecutors to provide advance notice of intent to use a DUI defendant’s DMV record at sentencing; the Court of Appeals says a traffic statute controls instead.
Ngomondjami v. Commonwealth (VLW 009-7-275) (10 pp.)
Tort - Telecom Company Can Sue for Business Conspiracy
By Deborah Elkins
July 1, 2009
A contract’s limitation-of-liability clause will not protect a Virginia telecom company from a New Jersey company’s business conspiracy suit, as a Roanoke U.S. District Court predicts how the Supreme Court of Virginia would handle the clause.
All Business Solutions Inc. v. NationsLine Inc. (VLW 009-3-370) (16 pp.)
Tort - Government Not Liable for Stability Test
By Deborah Elkins
June 30, 2009
The government’s certification of a double-pontoon vessel to carry 25 persons does not mean Federal Tort Claims Act liability for passenger deaths after the vessel capsized, as the government’s “stability proof tests” come under the discretionary function exception federal tort liability.
Indemnity Insurance Co. of North America v. U.S. (VLW 009-2-115) (11 pp.)
Search & Seizure - Vague Affidavit Cannot Support Warrant
By Deborah Elkins
June 29, 2009
An affidavit saying a woman had seen her boyfriend “with other stolen property” lacked detail about when and what, and a Norfolk Circuit Court suppresses the evidence seized from defendant’s home.
Commonwealth v. Fuller (VLW 009-8-130) (7 pp.)
Search & Seizure - Invalid Warrant - Affidavit Specificity
By Deborah Elkins
June 29, 2009
An affidavit stating that a woman had observed her boyfriend “with other stolen property in his possession” lacked necessary specific detail such as when the conduct took place or what items she had observed, and a Norfolk Circuit Court suppresses the evidence seized from defendant’s home.
The affidavit in the instant case offers no clue as […]
Negligence - FELA - Wrongful Death - Release
By Deborah Elkins
June 29, 2009
The estate of a railroad worker who settled his 1996 asbestosis suit against defendant railroad for $6,500 is not barred under federal railroad law or the terms of his earlier release from now suing the railroad under the Federal Employers Liability Act from suing the railroad after the railroad worker was diagnosed with mesothelioma in […]
Domestic Relations - Custody - Childhood Vaccinations - Medical Decisions
By Deborah Elkins
June 29, 2009
Although parents had joint legal custody of their three-year-old daughter, a Fairfax Circuit Court awards mother sole authority over health and medical decisions for the child, including a right to assert the religious exemption to mandatory childhood immunizations in Va. Code § 32.1-46(D)(1).
The child has had no immunizations thus far. The father supports immunizations and […]
Traffic Offenses - Driving Under Suspension - Jury Instruction
By Deborah Elkins
June 29, 2009
The Court of Appeals reverses a defendant’s conviction for driving under suspension in violation of Va. Code § 46.2-301, as the trial court erred in not granting defendant’s instruction that he drove within the conditions of a valid restricted operator’s license.
The defense argued that he was driving under a valid restricted operator’s license, within the […]
Traffic Offenses - DUI - Traffic Checkpoint
By Deborah Elkins
June 29, 2009
The Court of Appeals overturns a trial court’s suppression order, as the trial court erred in ruling that the police traffic checkpoint was faulty because the patrol supervisor had too much discretion.
In this case, the patrol supervisor first selected the date and time for the checkpoint to ensure the availability of adequate personnel to operate […]
Domestic Relations - Visitation - GAL Fees
By Deborah Elkins
June 29, 2009
A father cannot overturn a trial court decision that considered a report from a guardian ad litem and ordered father to pay $5,000 of mother’s attorney’s fees and to pay the GAL fees, and the Court of Appeals summarily affirms the trial court decision.
Father admitted that he did not like mother and did not communicate […]
Domestic Relations - Spousal Support - Income Change
By Deborah Elkins
June 29, 2009
Based on the parties’ concessions that there had been material changes in their circumstances since the original final order, including termination of husband’s employment and a reduction in his rental income, the trial court ordered husband to pay a lump sum retroactive award of $8,875 for a period from 2006 to 2008, and a prospective […]
Domestic Relations - Visitation - Dad’s Move - Travel Time
By Deborah Elkins
June 29, 2009
A trial court did not abuse its discretion in modifying a father’s visitation schedule to adjust his midweek visitation and allow for more summer and school holiday time, after the father moved farther away and the extra travel time was disruptive to the children’s academic performance and participation in extracurricular activities, the Court of Appeals […]
Domestic Relations - Visitation - Vermont Order Registration
By Deborah Elkins
June 29, 2009
In the latest round of the legal wrangling over visitation for 7-year-old Isabella Miller, the Court of Appeals holds that the circuit court had no jurisdiction to rule on Lisa Miller’s request for a declaratory judgment that would have blocked registration of Janet Jenkins’ Vermont visitation order in a Virginia court.
Isabella was the child born […]
Civil Rights - Fair Housing Act - Racist Epithets - Tenant Restrictions
By Deborah Elkins
June 29, 2009
In this suit by plaintiff tenants alleging a pattern of racial harassment and intimidation during the six-year period the tenants rented a house owned by defendant, including discriminatory statements, forcible eviction and burning of the tenants’ possessions, a Charlottesville U.S. District Court grants defendant landlord summary judgment on plaintiffs’ claims under the Fair Housing Act, […]
Civil Procedure - Diversity - Proper Defendant - Branch Bank
By Deborah Elkins
June 29, 2009
A plaintiff who sued a Martinsville branch of SunTrust Bank in state court cannot defeat removal of her suit to federal court, as the branch bank is not a separate legal entity and SunTrust, the Georgia corporation, must be substituted as defendant; the Danville U.S. District Court grants defendant’s motion to substitute defendant and denies […]
Criminal - Sex Offender Registration - SORNA - Va. Registry
By Deborah Elkins
June 29, 2009
The registration requirement under the federal Sex Offender Registration & Notification Act applied to a defendant who failed to register in the Western District of Virginia, even though Virginia has not enacted all the federal statutory standards prior to the federal deadline, and the Danville U.S. District Court refuses to dismiss defendant’s indictment for failure […]
Employment Discrimination - Disability - Discovery - Attorney-Client Privilege
By Deborah Elkins
June 29, 2009
A Lynchburg U.S. District Court denies plaintiff’s motion to compel defendant hospital’s human relations consultant and its in-house lawyer to testify about plaintiff’s termination, because the communications at issue are plainly subject to the attorney-client privilege and no waiver or exception applies.
Plaintiff claims she was fired from her hospital job because she was disabled, in […]
Employment - Fired Employee - Stolen Laptop - Confidential Data
By Deborah Elkins
June 29, 2009
An employer wins summary judgment against an employee who was fired for violating company policy by downloading confidential information into a laptop that was stolen from a vehicle in a hotel parking lot, a Harrisonburg U.S. District Court rules.
At defendant insurance company, plaintiff identified, contacted and provided services for existing and potential new insurance customers. […]
Products Liability - Defective Ladder Claim - Daubert - Expert Exclusion
By Deborah Elkins
June 29, 2009
A civil engineer/engineering professor falls short of the Daubert standard in his tests on the “Little Giant” ladder, and an Alexandria U.S. District Court excludes plaintiff’s expert evidence and grants summary judgment to defendant manufacturer.
The pro se plaintiff was severely injured when he stepped off a roof onto the ladder and fell. He alleges that […]
Labor - FLSA - Overtime Pay - School Employees - Class Action
By Deborah Elkins
June 29, 2009
In a suit for overtime pay under the Fair Labor Standards Act, an Alexandria U.S. District Court declines to conditionally certify a class of school board employees who provide security, athletic coaching and ticket-taking services at school athletic events.
While the 4th Circuit has not yet settled on a test for conditional certification in an FLSA […]
IMPORTANT OPINIONS
- Traffic Offenses - Bifurcated Trial ‘Notice’ DNA in Traffic Court
- Tort - Telecom Company Can Sue for Business Conspiracy
- Tort - Government Not Liable for Stability Test
- Search & Seizure - Vague Affidavit Cannot Support Warrant
- Search & Seizure - Invalid Warrant - Affidavit Specificity
- Negligence - FELA - Wrongful Death - Release