Published: How Compensable Consequence Can Have Far-Reaching Effects

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What to Include in a Tender Demand Letter

Claire C. Carr has been working at Kalbaugh, Pfund & Messersmith, PC (KPM LAW) for 28 years at its central office in Richmond, VA. In 1999, Claire C. Carr established the firm’s workers’ compensation insurance department and continues to manage it by serving as the practice group chair. In addition to practicing workers' compensation, Claire previously defended personal injury claims for businesses and companies who were sued by a customer for injuries received from some kind of accident. Frequently there was another company who contractually bore responsibility for the injuries. In those cases, Claire's client company may "tender its defense" over to another company to step in and defend, pursuant to a contract those parties had entered into.

Insurance is about risk transfer, but if that transfer includes expensive litigation, it becomes much less valuable. One of the steps in successfully transferring the risk of loss is to “tender” the defense of the claim to a third party and demand that the tender is accepted and that the third party step in to defend the claim. A tender demand letter must include all of the facts about the claim, including the parties involved, date, time, location, etc. Moreover, a copy of the indemnity contract that contains the duty to indemnify needs to be included, along with a copy of the certificate of insurance that identifies an organization as an additional insured or loss payee.

Always make sure the certificate of insurance is for the policy period in which the claim occurred. Also, remember that the letter is discoverable, so it should be worded carefully to avoid its use in litigation against you.

Published: The Collateral Source Rule in Contract Cases

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When Remote Testimony Is Allowed in Court

Richmond, VA-based lawyer Claire C. Carr became the first associate attorney hired by her firm in 1992 and the first associate to be promoted to partner in 1998 at Kalbaugh, Pfund & Messersmith, PC (KPM LAW). Claire C. Carr specializes in workers’ compensation cases. KPM LAW is an insurance defense firm with over 40 attorneys, over 30 of whom try civil cases and participate in jury trials.

The use of technology in civil trials is making great strides as noncritical witnesses are allowed to provide testimony on live audiovisual links rather than in person. A recent rule by the Virginia Supreme Court provides guidelines for the court and litigants regarding the circumstances under which witnesses should be permitted to testify in absentia.

The ultimate decision is up to the court, but the guidelines establish that the court should allow remote testimony if:

- All parties consent;

- The witness is more than 100 miles from the hearing;

- The witness is a superintendent of a hospital for the insane more than 30 miles from the place of trial;

- The witness is a physician, surgeon, dentist, chiropractor, registered nurse, physician’s assistant, or nurse practitioner, who, in the regular course of his or her profession, treated or examined any party to the proceeding; or

- The witness is in any public office or service with duties that prevent his or her attending court.

Expert witnesses are still viewed as critical to the outcome of cases and therefore are not subject to these guidelines. However, the court may permit their remote testimony under “exceptional circumstances.”