Risk Management 2010 Year in Review

By: Justin Ward. This was posted Tuesday, January 11th, 2011

Rate how helpful this article is:
Not HelpfulSomewhat HelpfulPretty HelpfulVery HelpfulExtremely Helpful

(No Ratings Yet)


As we move into 2011, we thought it would be helpful to reflect on 2010 and highlight some of the litigation activity of the risk management attorneys at Sands Anderson. 


David Hearn saved the client the burden and expense of costly products liability litigation when he successfully argued a plea in bar after his client was added as a defendant after the statute of limitations had expired.
Chip Delano proved the old adage “cheaters never win” after successfully arguing that a woman was not entitled to her husband’s $200,000 life insurance policy when she canceled it before he died, but sued the insurance company for reinstatement after his death.
Will Watkins obtained a defense verdict in a construction and products liability case before a jury in Covington, Virginia.
Jayne Pemberton had a significant victory in a recent premises liability case in which she won a defense verdict after a one day trial.

Chip Delano wrote $162,000 brief when he a won another significant victory against claimants who made material misrepresentations when applying for a life insurance policy. Upon receiving Chip’s brief in support of his motion for summary judgment to dismiss the family’s claim against the insurance company, the claimants dismissed their $162,000 claim with prejudice rather than attempt to develop an opposition to Chip’s brief.
David Hearn won a defense verdict in a trucking case tried in the Roanoke division of the Western District Federal Court, sparing his client from the Plaintiff’s claim of $750,000 in damages with $100,000 in medical expenses.
Jayne Pemberton settled two multi-million dollar cases days just weeks before the trials for a small fraction of the amount sued for, which was a significant savings to her client.


Terrence Graves and Drew Wilson successfully defended a high-value brain injury case in which the plaintiff originally sued for $68 million in compensatory damages after a fall down a outside flight of stairs, allegedly because of a flyer left on the landing by the management of the apartment complex. After a strong defense on liability and damages, including assertions that her deficits were due to other factors, such as age and pre-existing health problems, they were able to settle the case for just .02% of the initial ad damnum.


Chip Delano won a significant victory for his client recently in the Eastern District of Virginia when the court accepted his argument for summary judgment against a plaintiff who claimed permanent disability benefits that should have been covered by his wife’s insurance policy were denied. First, Chip successfully convinced the judge that the plan changed the standard of review that should be used by the court and then proved that the insured was not completely paralyzed in his leg as the plan required to pay the benefit.
Terrence Graves and Drew Wilson won a defense verdict when defending a tractor-trailer driver sued by a driver of a car and his wife after the tractor-trailer was struck by a car driven by a driver who fell asleep. The sleepy driver’s car caused the tractor-trailer to swerve out of control, causing the driver to hit his head and lose consciousness. Thus, when the tractor-trailer hit the plaintiffs’ vehicle, it was not through any negligence on the part of the trucker.

David Hearn won a significant victory by settling a maritime products liability case pending in federal court for only defense costs. David torpedoed the plaintiff’s case by finding a “smoking gun” document that clearly fixed liability for the plaintiff’s sunken boat on a third party.
Justin Ward’srecent win was written up in Virginia Lawyers Weekly when he successfully argued in Stanley, Adm’r v. Star Transport Inc.. that Iqbal applies to state law claims filed in federal cases, which lead to the court’s dismissal of the plaintiff’s claim for reckless acts, negligent hiring and supervision, and punitive damages. The opinion agreeing with Justin’s argument was featured in the statewide publication in the Daily Alert for May 28, 2010.
Doug Winegardner won a General District Court case recently when the plaintiff filed suit to recover defense costs in an underlying suit brought in federal court. Doug won at trial after proving that the damages claimed did not meet the policy definitions of an “advertising injury,” when the basis for the plaintiff’s claim was a breach of warranty action arising out of statements made in advertising about a residential subdivision.


Erin McNeill successfully presented a Special Plea in Bar on the issue of respondeat superior to Judge C. N. Jenkins of the Richmond Circuit Court July 19, 2010. The claims were for intentional torts allegedly made by private security forces. Erin represented the property owner and property management company and argued that only the security company had respondeat superior liability for the acts of the guards. We presented two witnesses in support, after convincing the judge that he could sit as fact-finder on a plea in bar and that the parties were not bound only to the pleadings. The Court sustained the Plea and dismissed both of Sands Anderson’s clients from the case with prejudice.
Drew Wilson was vindicated recently, by the apprehension of one of Chip Delano client’s insureds in a case that is unusual even by Risk Management standards. Drew successfully argued before a court in North Carolina that his client, a life insurance company, should not be obligated to pay on the policy, although the insured had been missing for over the seven year period required to create a presumption of death. Drew was able to overcome the presumption by showing that the insured was alive, but in hiding as a fugitive from justice – the insured was even featured on America’s Most Wanted! When the insured was apprehended in Florida, it was a satisfying resolution to the exceptional case.


Chip Delano held on to an earlier win last month after the trial court in the Eastern District court of Alexandria upheld their grant of summary judgment in favor of Chip’s client. The original Complaint was filed in 2003 and the plaintiff has appealed it to the Fourth Circuit twice – obtaining a remand each time. Chip’s continued zealous advocacy cemented his earlier victory and prevented the plaintiff from successfully overturning the grant of summary judgment.


Mike Charnoff and Doug Winegardner won a declaratory judgment action in the U.S. District Court in Lynchburg this month when the court declared after a one day trial that Doug’s client, an insurance company, was not liable for a claim brought by a landowner against the client’s insured land developer. Doug won on the argument that the developer was aware of the landowner’s pollution allegation before the effective date on his insurance policy.
Once again Justin Ward was featured in the Virginia Lawyers Weekly as the Top Opinion in their daily e-newsletter for his big win in getting a wrongful death claim dismissed that was predicated on a claim of negligent hiring. The plaintiff sued the tractor-trailer driver’s employer, claiming that they were liable for negligent hiring because the driver was fired from a previous employer for a safety violation and suspended driver’s license and because he had a prior speeding violation. The U.S. District Court in Abingdon disagreed and dismissed the claim.

Leave a Reply