DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
COMMONWEALTH OF VIRGINIA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the Commonwealth of Virginia
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]
RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement under Virginia law.
I. VIRGINIA PRODUCTS LIABILITY LEGAL FRAMEWORK
A. Theories of Liability
Virginia recognizes multiple theories of recovery in products liability cases:
1. Strict Liability in Tort - LIMITED ADOPTION
IMPORTANT: Unlike most states, Virginia has not adopted Section 402A strict liability for products liability cases. Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605 (1992).
However, Virginia recognizes a limited form of implied warranty in tort, which functions similarly to strict liability for consumers. Logan v. Montgomery Ward & Co., 216 Va. 425, 219 S.E.2d 685 (1975).
2. Negligence
Negligence is the primary theory of recovery in Virginia products liability cases. A manufacturer has a duty to exercise reasonable care in the design, manufacture, inspection, and warning of products. Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 252 S.E.2d 358 (1979).
3. Breach of Warranty
Virginia recognizes claims under the Uniform Commercial Code for breach of express warranty (Va. Code Ann. Section 8.2-313), implied warranty of merchantability (Section 8.2-314), and implied warranty of fitness (Section 8.2-315).
For personal injury claims, privity is not required for implied warranty claims. Logan v. Montgomery Ward & Co., 216 Va. 425, 219 S.E.2d 685 (1975).
B. Statute of Limitations
Under Va. Code Ann. Section 8.01-243(A), the statute of limitations for personal injury claims is two (2) years from the date of injury. The discovery rule may toll the limitations period for latent injuries. Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981).
C. Statute of Repose
Virginia does not have a general statute of repose for products liability claims. However, a ten (10) year repose period applies to improvements to real property under Va. Code Ann. Section 8.01-250, which may affect certain product-related claims.
D. Design Defect Test
Virginia applies a risk-utility balancing test for design defects. A product is defectively designed if the foreseeable risks of harm could have been reduced or avoided by a reasonable alternative design, and the omission of the alternative design renders the product unreasonably dangerous. Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489 (1996).
Factors considered include:
- The utility of the product
- The availability of safer alternatives
- The ability to eliminate danger without impairing usefulness
- The user's ability to avoid danger
- The user's awareness of risks
E. Contributory Negligence - CRITICAL
Virginia is one of only a few states that follows pure contributory negligence. Under Virginia common law, any negligence by the plaintiff that proximately contributes to the injury completely bars recovery.
This applies to negligence claims in products liability cases. Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675 (1982).
Exception for Warranty Claims: Contributory negligence is generally not a defense to warranty claims, unless the plaintiff's conduct amounts to assumption of risk or product misuse. Logan v. Montgomery Ward & Co., 216 Va. 425, 219 S.E.2d 685 (1975).
F. Punitive Damages
Virginia allows punitive damages where the defendant's conduct shows:
- Willful and wanton negligence; or
- Malice; or
- Conscious disregard for the rights and safety of others
Huffman v. Love, 245 Va. 311, 427 S.E.2d 357 (1993).
Statutory Cap (Va. Code Ann. Section 8.01-38.1): Punitive damages are capped at $350,000.
II. PRESERVATION OF EVIDENCE - CRITICAL NOTICE
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:
Product-Related:
- The subject product and all component parts
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control documentation
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
Complaints and Claims:
- Prior consumer complaints regarding this product
- Prior claims and lawsuits involving similar defects
- Regulatory correspondence and adverse event reports
Spoliation Warning: Virginia courts recognize adverse inference instructions and sanctions for spoliation of evidence. Wolfe v. Virginia Birth-Related Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003). ANY DESTRUCTION OR ALTERATION OF EVIDENCE WILL RESULT IN SEVERE CONSEQUENCES.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
The following entities are potentially liable under Virginia products liability law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
IV. THE DEFECT
A. Nature of Defect
[DESIGN DEFECT / MANUFACTURING DEFECT / FAILURE TO WARN - Select applicable]
[Detailed description of the defect and how it rendered the product unreasonably dangerous]
B. Risk-Utility Analysis
Under Virginia's risk-utility test from Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489 (1996):
- The foreseeable risks of harm from the [Product Name]'s design were substantial
- A reasonable alternative design was available that would have reduced or avoided the risk
- The alternative design was technologically and economically feasible
- Implementation would not have significantly impaired the product's utility
- The risk of harm outweighed the utility of the challenged design
V. ABSENCE OF CONTRIBUTORY NEGLIGENCE
CRITICAL: Our client was exercising reasonable care at the time of the incident and committed no act of negligence that contributed to the injury. Specifically:
- Our client was using the product for its intended purpose
- Our client was following all provided instructions and warnings
- Our client had no reason to anticipate the defect
- Our client took all reasonable precautions during use
- [Additional facts demonstrating lack of contributory negligence]
There is no basis for a contributory negligence defense in this case.
VI. THE INCIDENT AND INJURIES
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe use of product] when [describe how the defect caused injury].
B. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]
Medical Treatment:
- [Treatment summary]
Permanent Effects:
- [Describe any permanent conditions]
VII. DAMAGES
A. Economic Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Total] |
B. Non-Economic Damages
Under Virginia law, our client is entitled to compensation for:
- Physical pain and suffering
- Mental anguish and emotional distress
- Inconvenience
- Loss of enjoyment of life
- Permanent impairment and disfigurement
C. Punitive Damages
[If applicable:]
Your company's conduct in [describe egregious conduct] demonstrates willful and wanton disregard for consumer safety, warranting punitive damages under Virginia common law (subject to the $350,000 statutory cap under Va. Code Ann. Section 8.01-38.1).
D. Summary of Damages
| Category | Amount |
|---|---|
| Total Economic Damages | $[Amount] |
| Total Non-Economic Damages | $[Amount] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
VIII. SETTLEMENT DEMAND
Based upon the clear liability of your company under Virginia law, the absence of any contributory negligence by our client, and the substantial damages sustained, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for forty-five (45) days from the date of this letter, expiring on [Expiration Date].
If this matter cannot be resolved, we are prepared to file suit in the Circuit Court for [City/County], Virginia, and pursue this matter through trial.
IX. DOCUMENTATION ENCLOSED
☐ Medical records and bills
☐ Photographs of the defective product
☐ Photographs of injuries
☐ Employment and wage documentation
☐ Product documentation and warnings
☐ Expert reports (if available)
☐ [Other relevant documentation]
X. CONCLUSION
This case involves a defective product that caused serious injuries to our client through no fault of her/his own. The defect was present when the product left your company's control, and the injuries were entirely preventable.
We urge you to evaluate this claim seriously and respond with a reasonable settlement offer within the time allowed.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Virginia State Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
[File]
VIRGINIA PRODUCTS LIABILITY PRACTICE NOTES
☐ No Section 402A: Virginia has NOT adopted Restatement Section 402A strict liability for products claims.
☐ Implied Warranty Theory: Use implied warranty in tort for consumer claims to achieve similar results to strict liability.
☐ CRITICAL - Pure Contributory Negligence: Virginia follows pure contributory negligence - ANY plaintiff negligence bars recovery on negligence claims. Document absence of contributory negligence thoroughly.
☐ Risk-Utility Test: Virginia applies risk-utility balancing for design defects per Morgen Industries v. Vaughan.
☐ No Statute of Repose: Virginia has no general products liability repose period.
☐ Punitive Damages Cap: $350,000 cap under Va. Code Ann. Section 8.01-38.1.
☐ Warranty Privity: Not required for personal injury warranty claims per Logan v. Montgomery Ward.
☐ Expert Testimony: Virginia follows modified Daubert standard. John v. Im, 263 Va. 315, 559 S.E.2d 694 (2002).
☐ Joint and Several Liability: Virginia abolished joint and several liability in most tort cases. Va. Code Ann. Section 8.01-443.
This template is specific to Virginia law. Products liability law is complex and varies significantly by jurisdiction. This template must be customized for each case by a licensed Virginia attorney.