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December 2003
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February 2004

Another Confusing Decision From the D.C. Court of Appeals On Common Law Contribution

Another common law contribution decision has been handed down by the D.C. Court of Appeals, again illustrating the need for a joint tortfeasor statute in the District. It simply takes too much time to review a raft of complex decisions by the D.C. Court of Appeals in order to determine contribution among joint tortfeasors.

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University of Virginia Immune from Suit

In The Rector and Visitors of the University of Virginia v. Carter, No. 030258 (Va. Jan. 16, 2004), the Virginia Supreme Court considered the issue whether the limited waiver of sovereign immunity under the Virginia Tort Claims Act extends to agencies of the Commonwealth, such as the University of Virginia.

This issue arose in the context of a medical malpractice action by plaintiff, alleging negligence in the insertion of an epidural catheter. The plaintiff sued the University of Virginia Health System and a resident physician. The resident physician filed a plea of sovereign immunity and was dismissed as a party. UVHS then moved for summary judgment, arguing that it was not a legal entity and not capable of being sued. The plaintiff moved to amend to substitute UVA as the sole defendant in place of UVHS, which motion was granted. The Commonwealth of Virginia was never sued.

UVA then filed a plea of sovereign immunity, which the trial court denied. The trial court certified the ruling for an interlocutory appeal.

The Virginia Supreme Court reversed, stating in part:

The Act contains no express provision waiving sovereign immunity for agencies of the Commonwealth, which we have stated repeatedly is a mandatory requirement before waiver occurs. . . . As an agency of the Commonwealth, UVA is entitled to sovereign immunity under the common law absent an express constitutional or statutory provision to the contrary. There is no such waiver in the Act or elsewhere.

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Virginia Supreme Court Finds That Trial Court Erred In Overruling Pleas In Bar Based On Exclusivity Provisions of Virginia Worker's Compensation Act, Reversing a $900,000 Plaintiff's Judgment

In Clean Sweep Professional Parking Lot Maintenance v. Talley, No. 030058 (Va. Jan. 16, 2004), the Virginia Supreme Court held that the trial court erred in overruling pleas in bar based upon the exclusivity provisions of the Virginia Workers' Compensation Act.

The plaintiff was an employee of a subcontractor and brought a negligence action for personal injuries against another subcontractor. Both subcontractors had been hired by the general contractor engaged in the repaving of certain portions of I-95 under a contract with the Virginia Department of Transportation.

The plaintiff's employer, Coleman Trucking, had been hired to transport asphalt from the general contractor's plant to the jobsite, load asphalt into the paving machines, and haul the millings from the jobsite back to the plant.

The defendant subcontractor had been hired to help clear the roadway of asphalt after it was loosened by the milling machines.

The issue on appeal was whether the plaintiff's employer, Coleman Trucking, was engaged in the trade, business, or occupation of the general contractor. The trial court had held that Coleman Trucking was only engaged in a function which was as a supplier or deliverer of goods and to haul off goods, and was not engaged in the trade, business or occupation of the general contractor.

The Virginia Supreme Court disagreed. It reasoned that:

Coleman Trucking was not merely delivering its own independently manufactured parts. Rather, it was hauling asphalt millings to Virginia Paving’s plant and delivering the recycled asphalt from the plant back to the road project to be used in new paving. Clearly, similar to the defendant in Peck, Coleman “was engaged in an essential part of the work that [Virginia Paving] was required to perform under its contract with [VDOT.]” See 262 Va. at 528, 551 S.E.2d at 330. Coleman Trucking was not a stranger to the work of Virginia Paving, and its employee, Talley, was a statutory employee of Virginia Paving. . . .

U.S. District Court for Maryland Remands Due To Improper Notice of Removal

In Nozick v. Davidson Hotel Co., No. CCB-03-2988, U.S. District Judge Catherine Blake remanded a suit which had been removed to federal court under diversity jurisdiction due to technical discrepancies in the notice of removal. In brief, the notice of removal did not sufficiently indicate that another defendant joined in and consented to the removal, even though the other defendant's counsel had in fact given verbal consent to counsel for the removing defendant. The opinion teaches the basics of removal in a multi-defendant situation.

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U.S. District Court Dismisses Class Action Under D.C. Consumer Protection Procedures Act Because Plaintiffs Suffered No Injury And Therefore Lack Standing

In Williams v. The Purdue Pharma Co., No. 02-0556, U.S. District Judge Rosemary Collyer has granted the defendants motions to dismiss a class action under the D.C. Consumer Protection Procedures Act, seeking a refund of all monies paid by plaintiffs and class members of OxyContin, a pain medication. The suit expressly excluded plaintiffs with personal injury claims. The suit alleged that the defendants engaged in deceptive advertising and that their over-promotion of OxyContin inflated the price of the drug so that all class members paid a higher price.

The Court noted that the amendment to the CPPA effective Oct. 19, 2000, removed the requirement of injury in fact from the statute, but that that amendment is not applied retroactively.

The Court granted the defendants' motions to dismiss, on the grounds that standing to assert a claim requires a showing of actual or threatened injury redressable by the court, and that standing requires individualized proof of both the fact and the extent of the injury. The Court reasoned that:

The complaint before the Court fails in two respects. While it asserts that defendants engaged in false and misleading advertising, it does not plead that these defendants were in any way deceived – or even saw – any of that advertising. It also fails to allege any particularized and specific injury-in-fact suffered by these plaintiffs.