Bifurcation of Civil Trials

John P. Rowley III *

Richard G. Moore **

Despite its widespread and long-standing recognition as a valuable docket-control device, the bifurcation of issues in civil trials has generated considerable debate among legal scholars and judges. The state and federal courts both utilize bifurcation, and the Supreme Court of Appeals in Virginia recognized the advantages of the procedural device as early as 1915. Nonetheless, authority for the bifurcation of issues in civil trials in Virginia has remained clouded. The Supreme Court of Virginia lifted at least some of the clouds when it decided Allstate Insurance Co. v. Wade, thereby rejecting the position taken in an amicus curiae brief filed by the Virginia Trial Lawyers Association that bifurcation is not authorized under Virginia law.

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Challenging Supremacy: Virginia’s Response to the Patient Protection and Affordable Care Act

Matthew R. Farley *

Health care reform has been a primary goal of presidential candidates for the past half-century. At least since the adoption of the Universal Declaration of Human Rights in 1948 and the inception of the Medicare system in 1965, the primacy of achieving extensive and efficient health care in American policymaking cannot be seriously disputed. Currently, health care costs seem uncontrollable, and nearly fifty million Americans remain uninsured. Continuing into modern times, a cornerstone of President Bill Clinton‘s first term in office was to provide health care for all Americans. And although Democrats held a majority of seats in both chambers of Congress at the time, Clinton‘s attempt to revamp the health care system failed remarkably.

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Community Development Authorities

Andrew A. Painter *

Governed under current Virginia Code section 15.2-5152 et seq. (jointly, “CDA Statutes”), Community Development Authorities (“CDAs”) were first authorized by the General Assembly in 1993 under the provisions of the Virginia Water and Waste Authorities Act (“WWAA”) to provide an additional method for localities to finance infrastructure associated with development and redevelopment in an authority district. Given that Virginia‘s localities have increasingly considered CDAs as a way to cope with revenue shortfalls and growing infrastructure demands, and considering that many jurisdictions have yet to enact policies concerning their use, this article endeavors to provide an overview of the current status of CDA law in Virginia, including attendant considerations as to CDA legislative development, establishment, governance, and powers.

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Fool Me Once, Shame on Me; Fool Me Again and You’re Gonna Pay for It: An Analysis of Medicare’s New Reporting Requirements for Primary Payers and the Stiff Penalties Associated with Noncompliance

Brent M. Timberlake *

Monica A. Stahly **

July 30, 1965—that was the date on which two decades of debate over the national health insurance system that would come to be known as Medicare was signed into law as part of President Johnson‘s “Great Society” legislation. Since that time Medicare eligibility has expanded and the prospect of its insolvency continues to become more likely. In order to minimize unnecessary expenditures of Medicare funds, Medicare was statutorily deemed to have secondary liability in areas where primary insurers— including self-insurers, liability insurers, group health plans, and workers‘ compensation insurers—have an obligation to pay for Medicare recipients‘ medical care.

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Much Ado About Nothing Much: Protestant Episcopal Church in the Diocese of Virginia v. Truro Church

Henry L. Chambers, Jr. *

Isaac A. McBeth **

Protestant Episcopal Church in the Diocese of Virginia v. Truro Church (“Truro”) involves a property dispute. The core issue is who owns or controls property held in trust for an Episcopal congregation after a majority of that congregation votes to disaffiliate from the Episcopal Church of the United States of America (“TEC”) and affiliate with a different church. Deciding a church property dispute is inherently difficult because courts are generally “not a constitutionally permissible forum” to resolve ecclesiastical issues. Indeed, the desire to avoid such issues can lead courts to decline to decide particular cases. However, faced with the property dispute, a significant procedural history, and the need to determine the application of Virginia Code section 57-9(A) to the dispute, the Supreme Court of Virginia decided this case.

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Appellate Law

L. Steven Emmert *

Several years ago, the idea of a purely appellate practitioner was almost unheard-of in Virginia, outside government circles. Appellate practice was widely regarded by the practicing bar as a necessary adjunct to trial practice, not as a viable separate field in which to earn a living. Today, the field is experiencing a modest burst of growth. Senior Justice Elizabeth B. Lacy, addressing a symposium sponsored by the Virginia State Bar‘s Appellate Practice Committee in 2009, noted “the rise of an appellate bar” in the Commonwealth and expressed the view that this was a healthy development. By one modern measure, interest in this field of law in Virginia has clearly expanded, as the number of websites devoted to appellate practice—of which there were none as recently as late 2004— continues to grow.

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Civil Practice and Procedure

John R. Walk *

Andrew P. Sherrod **

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2009 through April 2010 addressing civil procedure; significant amendments to the Rules of the Supreme Court of Virginia made during the same period; and legislation enacted by the Virginia General Assembly during its 2010 session relating to civil practice.

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Construction Law

Christopher G. Hill *

The 2010 bill that will likely have the most impact on the construction industry is the amendment to Virginia Code section 54.1-411. The amendment to the Virginia Code removes language precluding the use of limitation of liability clauses by design professionals. In its place, the General Assembly substituted language stating that the change does not relieve individuals practicing in the covered professions from any liability arising from his or her employment with a covered entity.

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Criminal Law and Procedure

Virginia B. Theisen *

Stephen R. McCullough **

In Murillo-Rodriguez v. Commonwealth, the Supreme Court of Virginia, in a lengthy, unanimous opinion, explicitly held that a criminal defendant in a jury trial waives his motion to strike made at the conclusion of the Commonwealth’s case when he presents evidence on his own behalf. Therefore, a defendant who presents any evidence must renew his motion to strike at the conclusion of all the evidence, or present a timely motion to set aside the verdict. If he does not do so, the appellate court will not consider his challenge to the sufficiency of the evidence.

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Environmental Law

Caleb A. Jaffe *
Sean M. Carney **

This past spring marked the fortieth anniversary of Earth Day, first held on April 22, 1970. As the Washington Post reported, the milestone was “cause for celebration—and a mid-life crisis.” The reason for celebration was self-apparent: modern environmental regulation, from 1970 to today, gave us healthier air and cleaner water, and preserved cherished wild places. In addition, thanks to the “technology-forcing” design of many major environmental statutes, environmental regulation fueled greater economic prosperity by spurring industrial innovation. As the economists Michael Porter and Claas van der Linde famously articulated, “Firms can actually benefit from properly crafted environmental regulations that are more stringent (or are imposed earlier) than those faced by their competitors in other countries. By stimulating innovation, strict environmental regulations can actually enhance competitiveness.”

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