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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Three Published Opinions from the Court of Appeals -- and an old story about a car in a cemetery.

The Court of Appeals released three new published opinions today. Three seemed to be the appellate number of the day, as the Supreme Court announced three more granted writs, bring to eight the number of cases granted from the writ panel at the end of the month.

Amazon Logistics, Inc. v. Virginia Employment Commission, et al. involves an inemployment claim by a "flex driver" for Amazon. The VEC "found that Amazon (i) misclassified Diggs as an independent contractor rather than an employee and (ii) owed unemployment insurance taxes for Diggs and all similarly misclassified Flex delivery drivers. Amazon appealed the Commission’s decision to the Circuit Court of the City of Richmond, which affirmed the Commission. If you weren't aware, most administrative agency appeals go through the Richmond Circuit.

Flex drivers are a sort of "ride share for deliveries" and the Flex App is a product of AMZN Mobile LLC. While, in theory, the app allows drivers to set their own hours and accept only jobs they wish to, there are very specific parameters about when, where, and how packages are to be picked-up and delivered. The first criteria for finding that a "contractor" is really an employee for VEC purposes is "A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee." Thus, while someone who signs up to be a Flex delivery driver does get to choose whether to accept work on any given day, once they accept a delivery (or many), they are primarily under the control of Amazon.

The Court of Appeals, Judge Callins joined by Chief Judge Decker and Judge Huff, likewise affirms. As this is an administrative law case and I loathe administrative law with a passion normally reserved for things like Lego pieces left out on a floor in the dark, I will not attempt to summarize the in-depth analysis of the 32-page opinion. Suffice to say that it is very hard for an employer to prove that an employee is an independent contractor when, as here, the employer gives specific directions to the employee on when and how to do the job.

Ronald Dean Northcraft v. Commonwealth of Virginia involves the use of the Virginia Abandoned Vehicle Process which allows property owners to gain title to a vehicle that has been abandoned on their property. It is mostly used by mechanic and garages for unclaimed vehicles, but can also be used by the local government for junkers left on the side of the road -- but that was not always clear in the law, and created a loophole for private citizens to get title to cars that were "abandoned" on public property.

In 2018 Northcraft applied for abandoned vehicle titles for a 2006 Kia Optima, a 2016 Mini Cooper, a 2014 Chevrolet Camaro, a 2009 Mini Cooper, and a 2012 Toyota Camry. Several of the vehicles had expired registrations and had not been moved for some while, but their owners were known and knew where the cars were. When questioned about the applications, Northcraft falsely told a DMV employees that the vehicles were on his property.

You can probably see where this is going. Northcraft sold three of the "abandoned" vehicles for a tidy sum before the owners even knew they were gone. Northcraft was charged with three counts of grand larceny, five counts of unlawfully obtaining documents from the DMV, five counts of making a false statement on an application for a certificate of title, one count of money laundering, and one count of attempted money laundering. He elected for a jury trial and was found guilty of all counts.

On appeal he challenges the failure to strike a juror for cause and the court's refusal of a jury instruction, as well as the sufficiency of the evidence. During voir dire, one potential juror stated that when she heard the number of charges, it occurred to her that Northcraft "must have done something wrong," she had "set that thought aside" after being questioned about the presumption of innocence. She assured the trial court that she could act fairly in judging the evidence. The Court of Appeals, Judge Malveaux joined by Chief Judge Decker and Judge Causey, has no problem finding that the circuit court did not abuse its discretion in retained the juror after Northcraft sought to strike her for cause.

The jury instruction issue and the sufficiency are both based on Northcraft's argument that he had a "claim of right" to the vehicles because the law (at the time) allowed anyone to obtain an abandoned vehicle title for any vehicle left on a public road for more than 48-hours. He argued that even if he obtained the titles under suspicious circumstances, the fact that he had the title nonetheless allowed him to take possession of and dispose of the vehicles. Such a claim, however, must be based on a good faith claim, and the Court of Appeals finds that there was no "good faith" in Northcraft's actions.

This case reminds me of an argument once made to a jury regarding a vehicle that was driven away from a cemetery by someone not its owner. The defense attorney explained to the jury that his client "came upon the vehicle parked in the cemetery with the keys in the ignition. Making the reasonable assumption that the owner of the vehicle had died, my client took the vehicle in to his custody for safekeeping."

Pamela Larsen Stack, et al. v. Sandra F. Larsen may sound familiar, and that's because this case was previously appealed to the Supreme Court back when civil cases went directly to that Court. The issue involves a will that gave a residential home on several hundred acres to the testator's second wife, but did so without actually giving her any kind of fee. Rather, she was give the "right" to reside in home "for so long as she is physically and mentally able to do so." The Supreme Court determined that this was not a life estate, nor did it give the wife any right to any of the property beyond the home.

The present appeal arises from efforts of the testators children from his first marriage, who hold the fee to the property on which the home is located, to determine and enforce their rights which, among other things, they argued included the right of co-occupancy of the home. There were many other issues including the use of outbuilding and the lease payments from a cell-tower on the property, but the Court of Appeals, Judge Raphael, joined by Judges Lorish and Callens, find that the first issue is more or less disposative because the Supreme Court held that the widow's right was to leave on the property by herself without interference. The Court recognized that the children have a concurrent right to the property, but it is limited by this superior right of the widow.

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