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The Fourth Circuit has certified two questions to the Virginia Supreme Court.

One certified question involves the interpretation of a homeowners insurance policy under Virginia law:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from [the covered home’s] drywall unambiguously excluded from coverage under the policy because it is loss caused by: (a) “mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage itself”; (b) “faulty, inadequate, or defective materials”; (c) “rust or other corrosion”; or (d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”?

The per curiam unpublished certification order in Travco Insurance Company v. Ward was entered by a panel consisting of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith. The panel heard oral arguments on September 20, 2011. The court’s reasoning with respect to certification is not that extensive for the amount of time that this appeal has been pending.

The other certified question arises out of the employment context:

Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer, such as a supervisor or manager, but who participated in the wrongful firing of the plaintiff?

Judge Floyd authored the certification order in VanBuren v. Grubb, on behalf of a panel that also included Judge Niemeyer and Judge Motz. The reasoning in favor of certification is much more extensive than in Ward. In addition to noting that the Virginia Supreme Court has not addressed this issue, the order notes that no consensus has arisen among Virginia’s trial courts and that other states are split on the issue.

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The Fourth Circuit issued an unpublished order in First American Title Insurance Co. v. Western Surety Co. certifying three questions to the Supreme Court of Virginia. Judge Agee (formerly of the Supreme Court of Virginia) directed entry of the order, with the concurrences of Judge Duncan and Judge Norton (D.S.C., sitting by designation).

The certified questions arise out of “a real estate transaction gone awry.” For more details about the facts, read the order. The certified questions: (1) is there a private cause of action under the Virginia Consumer Real Estate Settlement Protection Act (“CRESPA”) against a surety and surety bond, by a party other than the State Corporation Commission? (2) If not, is there a cause of action to assert a common law claim, such as breach of contract, in lieu of a private cause of action under CRESPA? (3) If either of the causes of action mentioned in the first two questions is available, “does a a title insurance company have standing, either in its own right or as a subrogee of its insured, to maintain a cause of action against a surety and the surety bond . . .?”

See below the jump for some case background and the the text of Supreme Court of Virginia Rule 5:40(a), which sets forth the circumstances under which the Court is empowered to answer certified questions.

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