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

Two new opinions from the Court of Appeals After a Two Week Break

The Court of Appeals was silent for the last two weeks and was closed for Independence Day yesterday, the "usual" opinion day, so it was something of a surprise to see two new published opinions today. In a reversal of a criminal conviction in Renee Michelle Parady v. Commonwealth of Virginia, the Court makes a very important distinction about what will justify a warrantless search. The facts are not unusual. Parady was a passenger in a truck that was lawfully stopped because it had tags that were registered to a different vehicle, which is a suspicious circumstance.

The next suspicious circumstance was that the driver had an outstanding capias. Arrested on the capias and searched incident to that arrest, no contraband was found. But around the same time a drug-sniffer dog alerted on the passenger side of the vehicle where Parady was sitting. A third passenger was a known confidential informant and in a conversation with one of the officers she indicated that the source of the scent detected by the dog was an item secreted in a private area of Parady's clothing.

Parady denied having any contraband, but a patdown search suggested that there was some foreign object in the said personal area. The officer demanded that Parady produce the object, which turned out to be a small case containing several pills.

Now, before we get to the search and seizure issue, the Court advises us of a peculiar circumstance. The police did not formally arrest Parady at the time. Apparently the police wanted to assure themselves that the secreted pills were contraband and not, well, vitamins?

At any rate, when the pills provide to be an illegal narcotic, Parady was arrested. Here attorney filed a motion to suppress the fruits of the search as unlawful due to the lack of a warrant. The circuit court them made a curious ruling -- while finding that it was "ludicrous" for the Commonwealth to maintain that the police could not have controlled the situation while a warrant was obtained for a search, the court nonetheless found that the search was valid because the officers had "probable cause."

Those of you who remember first year criminal procedure can see where this case is going. The Court of Appeals, Judge Lorish joined by Judges Beales and Fulton, reverses, reminding everyone (but especially the trial judge, one suspects) that "probable cause" is the basis for obtaining a warrant, not for dispensing with the need for one. The Court also rejects the Commonwealth's "right result, wrong reason" arguments that the search was "incident to an arrest." Parady was detained by the search, but not placed under arrest before the search or, indeed, not for two weeks after the stop.

The other opinion today is from a civil case. In Michael Brown v. Timothy L. Kirkpatrick, involves a tender of UIM coverage from the insurer of Brown, an injured party in an automobile accident. Brown's insurer had waived its right of subrogation and tendered its UIM policy limits with the understanding that Kirkpatrick's insurer would defend the suit. The case proceeded to trial with Brown being awarded $286,000 against Kirkpatrick.

Brown receive the policy limit of $50,000 from Kirkpatrick's insurer and $286,000 from his own carrier for UIM coverage. However, Brown declined to agree to have the judgment marked as satisfied, asserting that the waiver of subrogation by his carrier should enure to Kirkpatrick's benefit. In other words, Brown contended that even if his carrier did not want to pursue Kirckpatrick to cover the $236,000 it paid under Brown's coverage, Brown was entitled to go after that money. The circuit court disagreed and Brown appealed.

The issue on appeal is whether the Collateral Source Rule of Llewellyn v. White, 297 Va. 588, 599 (2019), which held that where the UIM carrier settles with the plaintiff, the tender of policy limits does not enure to the benefit of the defendant who remains liable to the tortfeasor for any judgment, applied to cases where the UIM carrier settles with the defendant.

In a split decision, the Court of Appeals (Judge Humphreys joined by Judge Lorish) rules that UIM coverage is always collateral where subrogation is waived. Judge Huff dissents, reasoning that the waiver of subrogation in an agreement with the tortfeasor and his carrier is decidedly different from the situation in Llewellyn.

I won't say much about the merits of either position as I am certain that an en banc and/or a review by the Supreme Court will follow. I am in sympathy with Judge Huff, as it appears that Brown is getting a double recovery. When the UIM carrier settles with the plaintiff, there is a real possibility that the plaintiff won't bother to go after the tortfeasor, who may have little or no insurance and no means to pay a judgment. Moreover, such a settlement include other benefits to the carrier and the insured. Here, all the UIM carrier did, in effect, was to ask the defendant's carrier to put on a defense.

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