NOTES ON RECENT DEVELOPMENTS

 

[Posted March 14, 2013] Here are a few observations on some items that have caught my eye recently.

 

Greasing the wheels of justice

In a situation where two persons or entities could be liable for a claimant’s damages, the claimant normally is in the catbird’s seat. There are few things more heartwarming for a plaintiff than to have two defendants pointing fingers at each other. (This, of course, is primarily because neither of them is pointing any fingers at the plaintiff.) But in S&S Electric v. Markulik, a Workers’ Comp claimant found himself in desperate circumstances because of this kind of situation.

 

The employee sustained an electric-shock injury while working for his employer, an electrical contractor. The employer maintained Comp coverage through a company called Central Mutual on the date of the injury and for about a month thereafter, at which point it switched over to Hartford Casualty. Clearly, Central is on the hook for the initial condition, nerve damage to the employee’s right arm. But a month after the switch, his doctors diagnosed a second condition, carpal-tunnel syndrome in both arms. The doctors felt that the CTS was probably due to ordinary work duties, though one of them thought that the shock might have contributed to the right-arm CTS. Regardless of the cause, the employee was temporarily totally unable to work.

 

Now we’ve got a problem: figuring out who has to pay for indemnity (not to mention medical expenses). The two insurers fought it out before a deputy commissioner and the full commission, which ultimately ruled that Hartford was on the hook. But evidently during this whole process, no one was paying the employee for his loss of income, despite the fact that no one disputed that he was entitled to get paid.

 

The Court of Appeals on Tuesday affirmed the ruling that Hartford is liable because the record supports the commission’s conclusion that both circumstances contributed to the temporary total disability, and by statute, “compensation for the later injury must be paid first.” But that’s not the part that really caught my eye. What stuck out for me was this footnote, near the beginning of the opinion:

 

During the pendency of this appeal, claimant’s counsel filed a request for expedited review by this Court. In this request, claimant’s counsel represents that claimant “has lost his home as a result of not receiving any income for more than a year” and “is currently homeless.” We have expedited our review in light of claimant’s circumstances.

 

Most lawyers, and even many appellate lawyers, forget that you can ask any appellate court to expedite review of a given case, if you’ve got a good reason. Please note that “a good reason” doesn’t generally include the fact that you’re really, really eager to get a ruling; you’ll have to show hardship, in the form of some exigency. Here, the person for whom coverage was being provided was being left out in the cold while a couple of insurers debated which of them should pay up. That’s not the way a remedial statute should operate. I commend this panel (Judges Beales, Alston, and Willis) for doing the right thing by turning this case around quickly.

 

New post on appeals from GDC to circuit

My cyber-pal Steve Minor over at SW Virginia Law Blogposted a very interesting and informative piece Tuesday (March 12) about some of the procedural problems that can arise when a case is appealed from GDC to circuit. Here’s one example: Suppose a defendant loses and later wants to drop the matter – he can’t nonsuit, because only plaintiffs can do that. He has to go through the process of moving for leave to withdraw the appeal. But the act of appealing serves to vacate the GDC’s judgment, right? It’s an interesting read on a couple of potentially thorny issues, and is well worth your time if you handle cases like that.

 

Taking unfair advantage

The VLW Blog has an enjoyable poston some recent humorous comments by Judge Cliff Weckstein, from Roanoke, in a local bar-association gathering. As you might have noticed, I enjoy wit and humor very much, so this piece was a fun read. I would be remiss, however, if I didn’t mention that his Honor is taking unfair advantage of his situation, thus making himself appear to be wittier than those of us who might strive to compete with him in the jokes category. After all, we all understand that one of the inevitable consequences of being elevated to the bench is that all of your jokes are instantly perceived as being twice as funny . . .

 

Abandon all hope, ye who appeal here

No; that isn’t the text of the sign next to the door at Ninth and Franklin; it actually says, “Supreme Court of Virginia,” which is far more benign phrasing. But for criminal appellants, the SCV really is becoming the place where petitions for appeal go to die. As I reported hererecently, I counted just thirteen writs granted in criminal appeals during all of 2012. (The official stats won’t be out until next month, so I might be off by one or two. But I’m not off by twenty.) Thus far, one-fifth of the way through 2013, there has been just one lonely grant of a criminal writ by the justices. We’re rapidly approaching the point at which the Court of Appeals is effectively (though not technically) the court of last resort for criminal appellants.