VA Umbrella Policy Decision Results in $2.8 Million PI Settlement

A federal court’s decision in a declaratory action filed in the U.S. District Court for the Western District of Virginia has resulted in a $2.8 million settlement of a personal injury claim in Encompass Independent Ins. Co. v. Dombrosky.

In June 2015, teenage driver Tanya Dombrosky crashed into a tree in Botetourt County, Virginia. Her passenger Matthew Green was unrestrained at the time; he was ejected from the vehicle during the accident and sustained serious injuries, including spinal cord injuries that left him a paraplegic.

At the time of the incident, Dombrosky lived with her grandmother and mother. She was insured under her mother’s USAA policy
with $300,000 limits. Her grandmother also had an auto insurance policy with $250,000 limits and a $2.5 million umbrella insurance policy with Encompass. Encompass denied coverage for the incident under either policy and filed a declaratory judgment action in federal court. In order to determine the applicability of the umbrella policy, the issue for the court was whether the grandmother maintained or regularly used the vehicle, which had only been in the household for nine days prior to the accident.

The court ruled that the Encompass umbrella policy did cover Dombrosky. Even though the vehicle was titled in Dombrosky’s mother’s name, the grandmother paid for it in full. The purchase price included an initial oil change and limited warranty. The vehicle was also garaged at the grandmother’s house, and the grandmother filled the vehicle with fuel at leastonce and drove it 2-3 times. The court found that the meaning of the word “maintain” in the umbrella policy was ambiguous, but ultimately the grandmother’s “dominion and control” over the vehicle were important factors in finding that the umbrella policy did apply.

At the conclusion of the declaratory action, USAA and Encompass settled the case for $2.8 million.

Recent Legislation Puts Self-Driving Cars in the Fast Lane

In our current political landscape, bipartisan support is a rarity. However, one topic that all parties seem to be on the same page with is giving the green light to self-driving cars.

The U.S. House of Representatives approved a bill on September 6 aimed at hastening the deployment of self-driving cars and prohibiting states from blocking autonomous vehicles. Reuters reports that the bill, “[w]ill allow automakers to obtain exemptions to deploy up to 25,000 vehicles without meeting existing auto safety standards in the first year, a cap that would rise to 100,000 vehicles annually over three years.” A similar bill had favorable feedback from the Senate in early October.

It is believed that the legislation will pass both houses of Congress by the end of 2017. If that is the case, it would be a significant change to the current law, which prohibits self-driving cars without human controls from driving on U.S. roads. Reuters reports that the bill under consideration in the House “[w]ill require automakers to submit safety assessment reports to regulators, but would not require pre-market approval of advanced vehicle technologies.” The House bill would also limit the ability of states to regulate the performance standards of self-driving cars. However, states would still be able to regulate registration, licensing, liability, insurance and safety inspections of all cars on the road.

What does this shift in the market towards self-driving cars mean for companies who provide automobile liability insurance? In the short term, likely not much. Development of self-driving cars is in the preliminary stages, and the legislation currently in the House is meant to aid the growth of the technology necessary for self-driving cars to become widespread. The hope is that self-driving cars will reduce automobile accidents and related fatalities, as the main cause of auto accidents is human error.

In the long term, however, the allocation of liability may shift from individual drivers to the corporate owners or manufacturers of self-driving cars. The bill currently in the House will leave states free to continue to regulate their respective insurance markets. Indeed, NPR has reported that the Michigan state legislature has already passed a law that “specifies an automaker assumes liability and insures every car in its fleet when driverless systems are at fault.” It is fair to expect that more state legislatures will turn to the issue in the coming years as well. The push for self-driving cars is only just beginning, and it is one we will be watching very closely for years to come.


Foliage Follies: The Legal Side of Fall Clean-up Property Disputes Between Neighbors

It’s the time of year when the air is crisp, school is back in session, and football is in full swing. It’s also the time of year when every leaf and branch from a neighbor’s property seems to fall on your side of the fence. Most often, a few more swipes of the rake or leaf-blower will solve the problem. But what happens when the falling foliage causes damage to your property? Or when the encroaching vegetation starts to infringe on other property?

In Maryland, the law is relatively settled that the “infringed-upon” property owner has no legal course of action. In Melnick v. CSX Corp., an individual owned property adjacent to a warehouse owned by CSX Corporation. Trees, branches, leaves, roots, and other vegetation from the CSX warehouse grew onto his property, clogged the drains, and caused significant damage to Melnick’s roof and property. He sued CSX Corp. for the damage.

The Court of Appeals of Maryland determined that Maryland had successfully traversed the last 300 years of adjudication without trying disputes about falling leaves and branches. The Court of Appeals expressly decided that it did not want to encourage this type of litigation that would surely inundate the courts with unnecessary disputes. The Court of Appeals determined that there is no legal cause of action between property owners where the basis is encroaching vegetation and foliage.

However, a property owner is not without recourse to protect his property from his neighbor’s vexatious vegetation. The Court of Appeals encourages property owners to take matters in to their own hands. In adopting the “Massachusetts Rule” of self-help, Maryland holds that a property owner is entitled to trim vegetation and encroaching limbs, branches, and roots “back to the property line” in order to protect her property. The self-helping property owner need not obtain permission or authorization to trim back to the property line. However, a self-helping property owner “may not enter the adjoining landowner’s property to chop down a tree or cut back growth without his neighbor’s consent.”

As the leaves begin to turn and a neighbor’s branches and foliage starts to cover other property, self-help (up to your property line) is the judicially encouraged method of resolving disputes. While a phone call to the neighboring property owner may be wise, as long as the infringed-upon property owner does not cross the property line, he may trim to the property line without hesitation.

For more information on this article, contact Justin Tepe at