There has been a significant increase in the number of opinions from the Court of Appeals of Virginia over the last month, yet nary a word about any in this quarter. There are reasons for the silence, but mainly they are poor excuses. As in the past, I have had good intentions of catching up, but they never seem to come to pass. Until now. Rather than attempt to plow through the opinions in one go, I will instead take them one or two at a time and hope to be caught up by the end of the month.
Before doing so, however, I must take a moment to complaint about the new design of the Virginia Court’s website. If you have not visited the site recently, you will see that the new layout does away with the sidebar menu with its multiple layers which defied easy navigation and that there are snazzy new graphics. That’s all well and good. The complaint it that you can no longer copy the links for the opinions of the Court of Appeals (and Supreme Court) using the tried and true cut-n-paste method. Now you must “right click, copy, insert.” Ah well, I am nothing if not adaptable,
Northern Neck Insurance Company v. Virginia Farm Bureau Mutual Insurance Company, et al. is the only published opinion from September 17, 2024 that does not involve a government party as it involves a coverage dispute between two insurers. More specifically it involves whether the Farm Bureau policy was in force at the time of the loss. The policy in question was purchased by a married couple for their jointly owned home. Subsequently, the couple separated and the wife, who remained in the home, acquired a new policy from Northern Neck, contacting Farm Bureau to cancel the original policy. The husband did not join in the cancellation, but as a named insured the company “tried to obtain [his] written consent.”
You can guess what happened next. There was a fire which damaged the home, and a claim was filed through Northern Neck. Northern Neck then learned that on the date of the loss, husband still had not consented to the cancellation. When he did so, approximately 1 month after the fire, his consent gave its effective date as the date wife had first advised Farm Bureau that she wished to cancel the policy. Farm Bureau returned the unearned premium as of that date.
The circuit court found that Farm Bureau was not providing coverage on the date of the loss. Northern Neck appealed and the Court of Appeals, Judge AtLee joined by Judges Friedman and Callins, reverse and remand. This case is primarily about interpreting the language of the Farm Bureau policy, which provide for prospective cancellation, but not retroactive cancellation and also requires that the “insured,” defines as the named insured(s) on the policy, must confirm the cancellation in writing. Farm Bureau also argued that because husband was required to cooperate in the cancellation of the policy under a settlement agreement, that somehow imputed a third-party benefit to it. The Court disagrees, holding that “[t]he terms of the property settlement agreement have no bearing on the terms of the insurance policy.”
Town of Iron Gate, Virginia v. Jennifer Lynn Simpson sees the municipality appeal a decision that its “allowing” a stormwater drainage pipe to flood the property of Simpson was an inverse condemnation. The circuit court awarded Simpson $37,586 in damages and, wait for it, $206,785.74 in attorney’s fees under Code § 25.1-420. The opinion, Judge O’Brien joined by Judge Ortiz and Sr. Judge Humphreys, is something over 17 pages, but for my money the most interesting statement comes in the second sentence of the analysis, which begins:
n its first assignment of error, the Town argues the trial judge erred by “refusing to recuse himself from the proceedings, even after explicitly stating his bias against the Town.”
The Town did not provide a transcript from the hearing on its motion for recusal, which occurred on March 27, 2023—almost one and a half years after the liability bench trial.
(Emphasis added.) As Scooby says, Rut Roh Raggy!
As you can guess, the Court quickly notes that the absence of a transcript means the Town will not get this issue reviewed. The Court says, “Without the March 27 transcript, however, we have no way of knowing precisely the issues raised, waived, or rejected below.” (Emphasis added.) Why does this deserve notice? Because the Court is following a rubric which had fallen into disuse by saying that the absence of a transcript prevents the appellate court from knowing whether an argument may have been waived at the hearing where the issue was raised. Justice Henry Whiting quite fond of this assertion. Invariably, when it would be raised (usually at a writ panel in which the petitioner was headed straight for a “no reversible error” order), counsel would assure the Court that he or she would not have been so foolish as to waive the very issue that had been brought in the motion. Justice Whiting would respond, “I would hope that you wouldn’t be so foolish, but without the transcript, how do we know that you weren’t?”
The remainder of the opinion deals with the overruling of the Town’s demurrer, the exclusion of evidence of failure to mitigate, and the reasonableness of the award of attorney’s fees. These are dealt with applying the appropriate standards of review and the case is affirmed and remanded.
Remand? For what? Why, “for determination and award of the appropriate amount of appellate attorney fees” of course. Iron Gate is a town of 324 souls according to the most recent census. That means that before the circuit court awards the appeal attorney’s fees, the cost per resident of this little escapade is just over $754 apiece.
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