A case in Fairfax General District Court, heard before Judge Thomas E. Gallahue, underscores the need for the Virginia General Assembly to overhaul the Reckless Driving code section to explicitly include texting while driving. In the case Judge Gallahue dismissed the reckless driving charge against Jason Gage since the statute in question, VA Code section 46.2-852 et seq. This issue directly affects Virginia Subrogation attorneys, who routinely use the convictions or pleas of guilt to driving offenses as evidence in the case against defendant drivers.
The case in question arose from Jason Gage allegedly reading texts while driving, according to Gage’s cellular records, which show he received several text messages around the time of the accident. Kyle Alec Rowley, only 19 years of age, was fatally struck by Gage’s car when his car was parked in the right travel lane after ceasing to operate. Rowley’s hazard lights were illuminated and the car in front of Gage successfully navigated around Rowley’s vehicle, but Gage struck the rear of Rowley’s vehicle, killing Rowley.
According to police there were no signs of excessive speed or driving under the influence to account for Gage’s accident, which led them to investigate his cellular records. The police did not think to charge Gage under VA Code 46.2-1078.1, which levies a $20 fine for texting while driving. Since the reckless driving statutes do not include provisions proclaiming texting or talking on a cell phone “reckless” Judge Gallahue stated he had to dismiss the charge.
There is a strong argument that amending the reckless driving statutes to include a provision for texting while driving will send a strong message to Virginia drivers to cease texting while driving. There have been numerous studies demonstrating texting while driving exponentially increases the likelihood of an accident. For the Virginia Subrogation attorney having a clearly written, inclusive reckless driving statute makes prosecuting subrogation claims easier to prove in court, since a conviction or admission would demonstrate prima facie negligence on the part of the defendant.
Frozen Pipe Litigation – A Virginia Perspective
This subrogation post is a continuation of a running theme of plumbing-related subrogation challenges. I hope to address some issues elucidated in the article written by Lesa Key relating to frozen pipe litigation, but with a Virginia focus.
Where and when do frozen pipes occur?
Frozen water pipes usually occur outside of a residential or commercial building. In Virginia, you would more likely see this problem in the Northern Virginia regions, like Loudon county and along the Blue Ridge Mountains of the Shenandoah Valley. However, even ares like Richmond, normally a more temperate clime, can experience frozen pipes due to insufficient insulation, which will be touched upon later. Frozen pipes even occur underground. This is rare. Obviously, frozen pipes occur during the winter months, but pipes are especially vulnerable during a cold snap.
What to look for when pursuing Virginia frozen pipe subrogation claims
There are several steps the Virginia subrogation attorney can take to ensure a methodical, thorough investigation and pursuit of a frozen pipe case. First, examine the applicable law pertaining to construction and plumbing. In Virginia there is a statute of repose that limits the pursuit of a subrogation claim against a plumber or construction company to five years after the repair/construction:
§ 8.01-250. Limitation on certain actions for damages arising out of defective or unsafe condition of improvements to real property.
No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction, or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction. Virginia Code section 8.01-250 states the following:
The limitation prescribed in this section shall not apply to the manufacturer or supplier of any equipment or machinery or other articles installed in a structure upon real property, nor to any person in actual possession and in control of the improvement as owner, tenant or otherwise at the time the defective or unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought; rather each such action shall be brought within the time next after such injury occurs as provided in §§ 8.01-243 and 8.01-246.
Check your town, city or county ordinances regarding plumbing and building codes to ensure that any repairs made complied with applicable regulations. Virginia’s statute of repose is fairly short compared to other states that impose them. This requires prompt investigation and determination of the date of repair or construction.
If the subrogation attorney’s investigation reveals that the repair or installation did occur within the last five years then the investigation may proceed. The Virginia subrogation attorney may decide to call the plumber to testify, or call an engineer or metallurgist to testify as an expert. As a practice note, the Virginia subrogation attorney would be wise to give prompt notice to the installer, to give them an opportunity to conduct a pre-repair inspection.
Plenty of photographs of the scene should be taken along with preserving any portions of the pipe that are removed for repair. The pipe segment is crucial evidence for litigation purposes. Lastly, if a negligent repair is suspected, attempt to retrieve any invoices or receipts, and these are unavailable, seek the business records of the repair company.
Conclusion
Virginia subrogation attorneys face less frozen pipe cases than other jurisdictions, but that does not mean that our Commonwealth’s attorneys should be any less prepared to pursue a frozen pipe case.