On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*
Casualty Department
Brigid Alford (Harrisburg, PA) and Christin Kochel (King of Prussia, PA) tried a UM case in the Philadelphia County Court of Common Pleas that saw the jury return a defense verdict based on the operation of the limited tort option in effect at time of the accident. The plaintiff did sustain a tibial plateau fracture that required three months in a brace and six months of physical therapy. During this time, he was able to return to his job. The jury found that the plaintiff had not suffered a serious impairment of a body function.
Leo Bohanski (Scranton, PA) obtained a non-suit in a trip and fall jury trial in the Lycoming County Court of Common Pleas on behalf of a franchisee of a fast food restaurant. The plaintiff claimed insufficient lighting caused her to trip and fall over a curb, resulting in injuries to her face, wrist and knee. On cross-examination, the plaintiff admitted having had prior knowledge of the existence of the curb around the restaurant and that she never looked down before falling. She also admitted photographs from the night of her accident that depicted the lighting conditions and the curb she tripped on. Her boyfriend, who witnessed the fall from a distance, also admitted to seeing the curb in the photos and further acknowledged that he took the photos “in case things got ugly” with future litigation. The restaurant’s incident report and the hospital ER records both failed to reference any complaint of insufficient lighting but, instead, noted that the plaintiff misjudged the sidewalk. After the close of the plaintiff’s case-in-chief, we moved for a non-suit, highlighting how the evidence failed to support the existence of a dangerous condition that would support the one point for charge the plaintiff was seeking on liability under Restatement (Second) of Torts § 343. The judge agreed that the evidence failed to establish a dangerous condition and granted the motion for non-suit.
Ephraim Fink (Westchester, NY) and Caroline Skelton (New Haven, CT) obtained a minority view win in a personal injury/dram shop action in the Connecticut Superior Court. After suffering severe brain damage in a motor vehicle accident, the plaintiff brought claims of negligence and recklessness against our restaurant client and other various defendants, including the owners and operator of the offending vehicle, who was charged with multiple criminal offenses (still pending) for operating under the influence. On behalf of our client, cross-claims were asserted for contribution and indemnification. The co-defendants first requested revision of the cross-claims, which was complied with, and then moved to strike the cross-claims as not recognized under Connecticut law. We argued, on behalf of the restaurant and sole proprietor/owner, that there was a minority view of Superior Court cases of more recent vintage than that cited by the co-defendants’ counsel which supported such cross-claims. We submitted that the rationale behind these cases includes the plain language interpretation that Connecticut General Statutes Sec. 52-572h(c) does not prohibit a defendant from acquiring an apportionment evaluation of another (already named) party’s negligence. We argued this is particularly so under the circumstances of a criminally charged co-defendant operating under the influence as the final conduct in the negligence timeline. The Stamford Superior Court agreed that prohibiting the cross-claims would be absurd, irrational and nonsensical.
Despite dueling expert affidavits, Ephraim Fink (Westchester, NY) won summary judgment in a premises matter in Connecticut Superior Court Middlesex Judicial District. The plaintiff claimed negligence against our client, a mattress retailer, for a hazardous and defective condition in the store. The defect alleged was a tile-carpet transition claimed to be approximately one-half of an inch in differential, as well as a “slope” in the continuing carpet that created a friction co-efficient that caused the plaintiff to fall. We submitted an affidavit from the store owner (whom the plaintiff waived deposing), an affidavit from an engineering expert, photographs from the site inspection, and a detailed memorandum of law outlining Connecticut law on constructive and actual notice. Our engineering expert had researched the history of the premises at the Town Clerk for the time prior to our client’s occupation (eight months leading up to the incident) and observed there were no claims, complaints, or code infractions relative to the alleged condition. In other words, our client inherited the premises “as-is,” and, although responsible for the floor per the terms of the lease, had no reason or cause to repair anything or to take any corrective action. Our client’s affidavit attested that both he and his customers traversed over the “defect” countless times without feeling, observing, noticing or detecting anything foreseeably dangerous. Moreover, we asserted that, because the plaintiff’s expert failed to bring up any mention of a government regulation, code, industry standard, or custom that was deviated from with respect to the carpet-tile transition and premises, the expert’s affidavit was tantamount to no affidavit at all. The court’s decision granting our summary judgment motion and dismissing the case was issued January 14, 2022.
Brooks Foland (Harrisburg, PA) received a defense verdict in Lebanon County in a premises liability case involving a dairy farm. The plaintiff was delivering propane to the defendant’s farm when he slipped and fell on ice. The shale lane on which the plaintiff was walking had been plowed following a significant snow event, but patches of snow remained on the lane. The plaintiff contended that the farmer failed to properly plow the snow or failed to use salt to treat the ice. The plaintiff claimed injuries to his back and left knee, including a tear to his medial meniscus. The case was defended on liability and damages. After two days of trial, the jury returned a quick and unanimous verdict in favor of the defendant.
Ray Freudiger and Donielle Robinson (Cincinnati, OH) obtained summary judgment in favor of our client in a respondeat superior claim. A third-party defendant was employed with our insured, another named defendant. The third-party defendant was parked in a parking lot when the deceased caused a collision with his vehicle. After the collision, both the third-party defendant and the deceased became involved in a heated altercation, and the third-party defendant shot and killed the deceased. The estate of the deceased alleged damages against our insured, claiming the damages should be covered under the theory of respondeat superior because the third-party defendant was employed by our insured and driving his work vehicle at the time of the collision and altercation. We successfully argued there was no evidence of the third-party defendant acting in the scope and course of his employment at the time of the accident. The court determined that the plaintiff had not presented any contrary evidence and, thus, awarded summary judgment in favor of our insured.
Scott Ginsberg (New York, NY) successfully secured dismissals of multiple New York no-fault/PIP arbitrations. These arbitrations were commenced by medical providers against the respondent-carrier for non-payment of medical bills insofar as the policyholder and the claimant engaged in material misrepresentation in the procurement of the policy, and in the presentation of the claim. Scott submitted a defense brief that included numerous exhibits, including examination under oath transcripts, an affidavit from the respondent-carrier’s underwriting department and screenshots of insurance premium payments from the claimant to the policyholder. At the hearings, Scott argued the respondent-carrier owed no duty of coverage insofar as the policyholder and the claimant engaged in material misrepresentation in the procurement of the policy and in the presentation of the claim. Specifically, the policyholder fraudulently obtained an insurance policy with the respondent-carrier on behalf of the claimant. The misrepresentation was deemed “material” because the respondent-carrier would have charged a higher premium based on the actual garaging location of the insured vehicle and, moreover, would not have otherwise insured the claimant. The arbitrator held that the respondent-carrier established, by a preponderance of credible evidence, that: the instant loss involved fraud and misrepresentation in the procurement of the insurance policy; the policyholders’ misrepresentation with regard to the ownership, operation and garaging of the insured vehicle was material; the respondent-carrier would not have issued the policy if the facts had been disclosed by the policyholders; and the respondent-carrier was justified in denying the claim.
Matthew Gray (Melville, NY) successfully secured dismissal of multiple New York no-fault/PIP arbitrations. These actions were commenced by medical providers against the respondent-carrier for non-payment of medical bills insofar as the policyholder and the claimant engaged in material misrepresentation in the procurement of the policy and in the presentation of the claim. Matthew submitted a defense brief that included numerous exhibits, including examination under oath transcript(s), an affidavit from the respondent-carrier’s underwriting department, and a previous court order ruling that no coverage is afforded this loss. On previous matters, Matthew argued the respondent-carrier owed no duty of coverage because the policyholder and the claimant engaged in a material misrepresentation in the procurement of the policy and in the presentation of the claim. Specifically, the policyholder fraudulently stated they would garage the vehicle in a location with an annual premium significantly lower than what would have been if the true garaging location of that subject vehicle had been disclosed. The misrepresentation was deemed “material” insofar as the respondent-carrier would have charged a higher premium based upon the actual garaging location of the insured vehicle and, moreover, would not have otherwise insured the claimant. The arbitrators, and the court before them, held that: the respondent-carrier established by a preponderance of credible evidence that the loss involved fraud and misrepresentation in the procurement of the insurance policy; the policyholders’ misrepresentation with regard to the ownership, operation and garaging of the insured vehicle was material; the respondent-carrier would not have issued the policy if the facts had been disclosed by the policyholder; and the respondent-carrier was justified in denying the claim. Based on this evidence, Matthew was successful in arguing and having the opposing counsel withdraw, with prejudice, the four linked cases, totaling and saving the carrier, $18,427.23.
Brad Haas (Pittsburgh, PA) successfully tried a case in the Beaver County Court of Common Pleas where the plaintiff claimed she sustained serious head and neck injuries following a two-car motor vehicle accident. At trial, Brad demonstrated that the plaintiff’s alleged injuries were largely related to pre-accident and degenerative medical conditions. Brad also highlighted the fact that this was the plaintiff’s third personal injury lawsuit in a 15-year span. On the day of trial, the plaintiffs reduced their demand from $85,000 to $75,000. At the conclusion of trial, the jury returned a verdict of only $4,000.
Ashley Heffernan (New York, NY) obtained a summary judgment in two cases involving personal injuries stemming from a fall involving a ladder. In the first case, a general contractor sought contractual indemnification from our client and alleged breach of contract. Ashley was able to establish that there was no admissible and fully-executed contract between the parties, and she moved for summary judgment with sanctions and fees. Thereafter, we obtained a discontinuance, with prejudice, from the general contractor. In a second case involving personal injuries stemming from a slip and fall involving a ladder, we moved for summary judgment, seeking dismissal of the plaintiff’s Labor Law claims against our client. Ashley convinced the court that the evidence to date did not establish a legal basis to apply Labor Law protections to this incident, and she established that the plaintiff was not a protected worker and was not engaged in a protected activity. Following oral argument, the court dismissed all Labor Law claims against our client.
Andrew Thebaud (New York, NY) successfully obtained summary judgment dismissal of a premises liability claim on behalf of our homeowner client. The plaintiff alleged she tripped and fell on the public sidewalk abutting the insured’s property in New York City because the sidewalk was uneven and cracked. Plaintiff filed suit against numerous defendants, including the insured, a single-family homeowner not responsible for the sidewalk’s maintenance pursuant to section 7-210(b) of the New York City Administrative Code. Since the insured was not responsible for maintaining the sidewalk abutting their property, Drew filed a motion for summary judgment to dismiss the insured from the case. The motion brief demonstrated there was no question of fact, and the court granted the motion, dismissing the complaint in its entirety against our client.
Professional Liability Department
Kimberly Berman and Holly Hamilton (Fort Lauderdale, FL) succeeded in convincing the Fifth District Court of Appeal to quash a non-final order that had granted the plaintiff in a personal injury lawsuit leave to amend the complaint to add a claim for punitive damages. They asserted that the trial court departed from the essential requirements of the law when it failed to make an affirmative finding at the hearing or in the written order as to the evidence that supported a reasonable basis to proceed with the amendment per section 768.72, Florida Statutes. The Fifth DCA agreed and granted the petition for writ of certiorari, quashed the order on review, and certified conflict with another district court decision addressing the same issue.
Kimberly Berman (Fort Lauderdale, FL) succeeded in obtaining a dismissal by the Second District Court of Appeal of an appeal of a final administrative order concerning a homeowners association’s deed restriction revitalization efforts. During the pendency of the appeal, the association petitioned to the Department of Economic Opportunity for revitalization a second time, which the Department approved. The Second District then dismissed the appeal as moot.
Kevin Bright and Lila Wynne (Mount Laurel, NJ) successfully obtained a prejudgment writ of execution in an environmental subrogation case. This case involved a claim for contribution towards investigation and remediation expenses incurred by our client at the home of its insureds. Forensic age-dating revealed that the contamination predated the insureds’ purchase of the property. Kevin and Lila sued the prior owner who had developed the property and had taken steps to conceal the contamination. On that basis, Kevin and Lila successfully obtained a pre-judgment writ of attachment on an unrelated piece of real property owned by the defendant in order to prevent the defendant from fraudulently transferring ownership to avoid an eventual judgment. After entry of the writ of attachment, the case settled for 100 percent of the remediation expenses.
In civil rights litigation, Patrick Carey and Michael Garcia (Erie, PA) obtained summary judgment and the dismissal of all claims against the City of Erie and one of its police officers. The court found that the traffic stop of the plaintiff was proper and did not violate his constitutional rights. The plaintiff filed an action against the police officer and the City of Erie, alleging that his Fourth Amendment rights were violated because of unlawful search and seizure as well as a malicious prosecution. The plaintiff further alleged that the City of Erie was liable for the constitutional violation based upon a failure to train its officers. These claims were based, in part, upon the Pennsylvania Supreme Court decision in Commonwealth v. Hicks, which was filed approximately two months before the plaintiff’s arrest. In this civil rights case, the parties agreed to forego discovery and instead relied solely upon the record developed in the plaintiff’s state criminal prosecution. After considering the record evidence, the arguments of each side, and the motions and briefs submitted, the District Court issued an opinion finding that the police officer possessed a reasonable suspicion of criminal activity, justifying the traffic stop of the plaintiff’s vehicle. Because the court concluded that the plaintiff’s constitutional rights had not been violated, an analysis of qualified immunity was unnecessary. Finally, after finding that the officer did not violate the plaintiff’s constitutional rights, the court dismissed the Monell claims raised against the City of Erie. No appeal of this decision was taken by the plaintiff.
Adam Fogarty (Mount Laurel, NJ) obtained summary judgment relief for the owner of a property where a construction site accident had occurred. Our client, a local board of education, hired a general contractor to perform an HVAC renovation project at a high school. The plaintiff was a subcontractor working on that project who was injured when a light fixture fell on him as he was replacing ceiling tiles in a suspension grid. Summary judgment was granted as there was no evidence to suggest the injury was caused by negligence of the property owner. Instead, an exception to the general duties of a commercial property owner applied because our client had not retained control over the manner/means of the contractor’s work; there was no evidence the contractor was incompetent; and the contracted work did not constitute a nuisance per se.
Brooks Foland and Christopher Woodward (Harrisburg, PA) obtained dismissal of an insured’s breach of contract/coverage action arising from her claim for underinsured motorist benefits. The United States Court for the Eastern District of Pennsylvania granted the motion for summary judgment, upholding and applying the household vehicle exclusion contained within the policy.
John Hare and Shane Haselbarth (Philadelphia, PA) prevailed in the Pennsylvania Supreme Court, which reversed the trial court and Superior Court and reinstated a jury verdict in favor of our clients. Following a defense verdict, the trial court awarded a new trial based on a question posed by defense counsel, who was not a Marshall Dennehey attorney. The Superior Court affirmed the award of a new trial, but the Supreme Court reversed and reinstated the defense verdict on the basis that defense counsel’s question was neither improper nor prejudicial.
Howard Mankoff (Roseland, NJ) successfully represented an attorney who was sued by a former client, who the attorney had represented in a personal injury claim. The plaintiff alleged the attorney failed to file suit within the time allowed by the Statute of Limitations. We argued in our summary judgment motion that the attorney sent two letters to the plaintiff, advising that the attorney would not file suit and further informing the plaintiff when the Statute of Limitations would expire. The plaintiff, who filed suit four years later, argued that he did not receive the letters and that the attorney was obligated to do more than send letters. We successfully argued that the plaintiff failed to overcome the presumption that a letter, correctly addressed, was received. The Appellate Division affirmed, adopting our argument that the plaintiff could not overcome the presumption by simply claiming he did not receive the letters. The appeal was handled by Walter Kawalec (Mount Laurel, NJ).
Patricia McDonagh (Roseland, NJ) achieved an appellate victory in defeating the plaintiff’s motion for leave to file an interlocutory appeal of a court order barring the report and related trial testimony of the plaintiff’s expert. The trial court had barred the supplemental expert report and trial testimony relating to the report of the plaintiff’s expert because the report, which was served after the discovery end date, was not accompanied by a certification of due diligence. The plaintiff then, before the Appellate Division, moved for leave to appeal the decision, and the appellate court denied the plaintiff’s motion, precluding the plaintiff’s only expert report that placed causation for the plaintiff’s injuries on our client’s alleged negligence.
William McPartland and Jake Gilboy (Scranton, PA) obtained denial of the plaintiffs’ temporary restraining order related to a public school district’s COVID-19 face covering policy. The plaintiffs, a series of John and Jane Doe plaintiffs suing on behalf of their minor children, filed a complaint on October 18, 2021, alleging various federal causes of action arising out of the school district’s COVID-19 face mask policy. At the same time, the plaintiffs also filed a motion for injunctive relief by way of a temporary restraining order, seeking to enjoin the defendants from instituting its mask exception policy as adopted by the school board and in compliance with an order from the Acting Secretary of Health related to such school protocol. On October 28, 2021, we attended a nearly seven-hour hearing on the plaintiffs’ TRO motion. In briefing and argument, the defensive theories presented included the position that the plaintiffs’ claims were too speculative to warrant issuance of injunctive relief, and that the plaintiffs’ were not likely to succeed on their merits as they had presented no evidence of ADA violations, no evidence of Section 504 of the Rehabilitation Act violations, no evidence of constitutional due process violations, no evidence of a state-created danger, and no First Amendment free association violations—all of which they had claimed. Additionally, it was argued that an increased risk of harm of exposure to COVID-19 does not amount to irreparable harm as required under the law to obtain injunctive relief. On November 11, 2021, U.S. District Judge for the Middle District of Pennsylvania issued a 70-page memorandum opinion and order denying the plaintiffs’ request for preliminary injunction. In his opinion, the judge held that the plaintiffs had not met their burden of showing a likelihood of success on the merits, and that it was not more likely than not that they would suffer immediate and irreparable harm in the absence of injunctive relief—a required element for a restraining order or injunction.
Patricia Monahan (Pittsburgh, PA) secured summary judgment in the United States District Court for the Western District of Pennsylvania for a municipal client and a code enforcement officer who were alleged to have issued multiple code violations to the plaintiffs in violation of their equal protection rights. The judge determined that many of the plaintiffs’ claims were time-barred, and that the code enforcement officer acted with appropriate discretion in a non-arbitrary manner.
Patricia Monahan and Christian Marquis (Pittsburgh, PA) obtained summary judgment for an insurance client that had been sued by another insurance carrier for more than $1.6 million in damages arising out of a fire loss. The opposing insurance company had paid $1.6 million in damages and intended to pursue a product liability claim against a vehicle manufacturer, alleging that a defectively manufactured vehicle had caused the fire to an auto repair facility. Our client insured the vehicle that was allegedly defective. After the insurance companies conducted a preliminary expert evaluation, the vehicle was destroyed by a salvage yard in the normal course of business. A claim was made against our client for promissory estoppel where it was alleged that the vehicle was destroyed despite a promise to preserve. The Court of Common Pleas of Erie County rejected the claims against our client and agreed with our defense that the promissory estoppel claim was a disguised claim for negligent spoliation, which the Supreme Court of Pennsylvania does not recognize. Moreover, assuming such a cause of action could withstand summary judgment, the damages claimed were speculative in that without the vehicle it could never be proven that a manufacturing defect within the vehicle had caused the fire. Although the $1.6 million in damages were established, whether the insurance company could prove causation of damages was speculative and the promissory estoppel claim could not survive summary judgment.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful before the Disciplinary Review Board in affirming the Office of Attorney Ethics dismissal of an ethics grievance against their client, a school law attorney. The grievant, on appeal, argued that the attorney took legal fees from a settlement and alleged that the attorney was prohibited from doing so based upon the terms of the settlement agreement. In fully investigating this matter, the Disciplinary Review Board held that, based on the evidence received, the interviews conducted and the submissions prepared on behalf of the attorney, the investigation did not reveal clear and convincing evidence that the attorney had engaged in unethical conduct. The Disciplinary Review Board held that based on the clear and convincing standard imposed on ethics cases, the grievant failed to assert a cause of action. The Disciplinary Review Board, therefore, dismissed the grievance against the attorney.
John Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained a dismissal of an ethics grievance filed against our client, a school law attorney who represented a school board and a school district. The grievance included allegations of ex parte communications with the administrative law judge, undue influence over the court, and conflict of interest based on a mediator’s spouse being retained by this attorney’s firm. Jack and Jeremy successfully argued to the disciplinary investigator that the conversations this attorney had with the administrative law judge’s staff were rudimentary scheduling and routinely conducted in cases across New Jersey. Jack and Jeremy also argued that, in terms of the conflict of interest alleged, this attorney was an associate with the firm and had no interactions or decision-making authority regarding hiring of attorneys. The disciplinary ethics investigator found by clear and convincing evidence that the testimony of the school law attorney was credible, and that there was no ethical misconduct by our client.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) defeated plaintiff’s petition for certification to the New Jersey Supreme Court in a tortious interference and defamation action against an attorney for a lender bank. The New Jersey Appellate Division had affirmed a trial court decision granting summary judgment in a $10 million tortious interference and defamation case filed by borrowers against the attorneys for a lender bank. This case arose out of an underlying deficiency and foreclosure action filed by a bank due to the plaintiff’s failure to repay a multi-million dollar loan used to finance the purchase of real estate. During the course of negotiations to resolve the debt, the bank’s counsel had discussions with the plaintiff’s new lender. The plaintiffs alleged that during these discussions, the defendant attorney called plaintiff a “wannabe gangster.” On appeal, Jack and Jeremy successfully argued that the trial court was correct in dismissing this case on summary judgment. The Appellate Division held that the trial judge correctly concluded that a statement made by the bank’s attorney to a potential new lender calling the plaintiff a “wannabe gangster” was mere name calling, not actionable defamation. The claims for tortious interference were based upon the lost opportunity, since the new lender rescinded its conditional commitment after the alleged statement was made. The Appellate Division held that the trial court was correct in holding that the statements were protected under the litigation privilege, and that the litigation privilege is not confined to the courtroom, but extends to all statements or communications in connection with judicial proceedings. Subsequently, the plaintiff filed a petition for certification before the New Jersey Supreme Court, which we successfully opposed. The Supreme Court, in its decision, denied the plaintiff’s petition, with costs in favor of our client.
Danielle Vugrinovich and Michael Winsko (Pittsburgh, PA) secured dismissal of a class action against a retailer alleging claims it charged Pennsylvania state tax on face masks/coverings during the COVID-19 pandemic when they were not subject to sales tax. The plaintiff, on his own behalf and on behalf of the putative class, alleged claims for violations of the Pennsylvania Unfair Trade Practices Consumer Protection Law and the Pennsylvania Fair Credit Extension Uniformity Act, as well as common law claims for unjust enrichment, fraud and misappropriation/conversion. The plaintiff claimed that face masks and coverings became exempt from Pennsylvania sales tax as of March 6, 2020, when the governor issued a Proclamation of Disaster Emergency. Prior to the Proclamation, non-medical face masks/coverings were subject to sales tax because they were classified as ornamental wear or clothing accessories. The court held that the plaintiff failed to state a claim for any of the causes of action alleged and held that amendment would be futile.
Workers’ Compensation Department
Heather Carbone (Jacksonville, FL) won a total controvert on a workers’ compensation exposure claim where she successfully defended a denial. The claimant alleged exposure to a toxic airplane paint thinner at an aerospace plant in Kentucky in December of 2019. He was a subcontractor of the aerospace plant, but a Florida employee. The claimant complained of breathing issues and skin rashes. He sought treatment at an emergency room in Kentucky on the date of alleged exposure ,and again approximately 10 months later for skin rashes. However, the claimant was able to continue working without any wage loss the entire time. The employer/carrier denied and defended on the basis that the claimant could not prove causation by clear and convincing evidence pursuant to F.S. 440.02. The claimant obtained an IME, which opined that his breathing issues could be attributable to the alleged exposure, but that the rashes most likely were not. The claimant’s IME physician opined that the claimant needed to undergo additional testing to determine causation. The employer/carrier’s IME opined that the major contributing cause of the claimant’s rashes and breathing issues was not the alleged exposure. The Judge of Compensation Claims accepted the employer/carrier’s IME and held that the claimant failed to prove that a workplace chemical exposure was the major contributing cause of his complaints.
Angela DeMary and Kyle Byard (Mount Laurel, NJ) successfully obtained a complete dismissal with no payment on a medical provider petition. They argued lack of jurisdiction, in reliance upon the recent Appellate Division’s consolidated decisions of Anesthesia Associates of Morristown v. Weinstein Supply and Surgicare of Jersey City v. Waldbaum’s, 2020 WL 5944009 (App. Div. October 7, 2020)(cert denied, April 1, 2021). Despite opposing counsel’s attempts to distinguish the issues of the instant matter from the recent case law, the court rejected the arguments and granted the complete dismissal of the claim with prejudice.
Adam Huber and Angela DeMary (Mount Laurel, NJ) were successful in obtaining an order for dismissal in the Mount Holly, New Jersey Workers’ Compensation court. In his claim petition, the petitioner alleged permanent disability as a result of contracting COVID-19 while working for the insured. He alleged that while working as an auto hauler he was exposed to COVID-19, which resulted in a permanent pulmonary disability. Adam and Angela successfully argued to the judge that the petitioner’s discovery failed to provide sufficient proofs supporting that the petitioner had COVID-19 or that, if he did, it was “related to his job.”
Tony Natale (Philadelphia, PA) successfully defended one of Pennsylvania’s largest turkey processing plants in a million dollar amputation claim. The claimant alleged that, due to an alleged exposure to turkey blood and feces at the workplace, he developed an infection in his foot that led to amputation of his leg. The claimant alleged a specific loss of the leg, total disability due to injuries separate and apart from the loss, and disabling psychological injuries. Tony was able to prove through the use of an infectious disease expert that the claimant’s leg amputation was caused by an underlying venous insufficiency and infection stemming from years of uncontrolled diabetes. Tony also established on cross examination that the claimant failed to provide proper notice of a work-related injury within the meaning of the Workers’ Compensation Act. The claimant was done in by his own execution of a fee agreement with counsel, at or near the time of his injury, which wholly undermined his earlier testimony that he had no inkling of his condition being work-related until filing his claim petition nearly three years after the date of injury.
Tony Natale (Philadelphia, PA) successfully defended a Berks County mushroom harvesting company in a case of relative first impression in Pennsylvania. The claimant sustained a work-related injury to the right shoulder. She underwent surgery and was released to modified duty. The employer offered her a modified job. The claimant returned to work and continued at restricted duty. She was ultimately found to be fully recovered by a renowned Philadelphia shoulder surgeon. Tony then filed a termination petition, alleging full recovery of the right shoulder. The claimant responded by filing a claim petition, alleging a new injury to the opposite shoulder that totally disabled her from employment. After cross examining the claimant, it was determined that she purposely exceeded her work release restrictions upon return to work, despite the employer’s directive to the contrary. The claimant alleged that her voluntary acts exceeding her restrictions caused her new injury. The judge ruled that the claimant was not in the course and scope of employment when she exceeded her restrictions, and her that alleged injuries to her left shoulder were degenerative, not work-related. The judge also found the claimant to be fully recovered from the previously accepted right shoulder injury.
Tony Natale (Philadelphia, PA) defended a claim petition and penalty petition wherein the claimant alleged serious neck and back injuries as a result of a work related motor vehicle accident. Tony convinced the judge that the claimant was not in the course and scope of employment at the time of injury and, therefore, his claim was barred. The judge noted that, based on claimant’s testimony on cross examination, he had a legal address in North Carolina but was allegedly leasing an apartment in Newtown Square, Pa. He alleged he was on a special mission on the date of injury, travelling to an office owned by the employer. It was established that on the date of the accident, he was travelling on an expressway in New Jersey prior to his shift and admitted that his job required him to service many of the employer’s offices. The judge accepted the defense argument that the claimant was travelling to work, not in the course and scope of employment and not on a special mission, and dismissed the claim and penalty petitions.
Michael Sebastian’s (Scranton, PA) defense strategy garnered the defendant monies for overpayments made and medical bills paid. Prior to our representation of the defendants, a third party case had been resolved on February 28, 2019, for $1,250,000. On June 2, 2020, the claimant filed a review petition requesting the judge to adjudicate the subrogation lien since the defendants did not resolve the lien via a third party settlement agreement. The defendants continued to pay full indemnity benefit to the claimant in the amount of $573.02 until the third party settlement agreement was finalized on August 19, 2020. The parties calculated that the claimant’s future indemnity payment would be $200.22 per week. Claimant’s counsel required that the third party settlement agreement be calculated as of the day of the settlement in February 2019. He would not agree that our client overpaid the claimant indemnity benefits from the date of the settlement through August 19, 2020. Therefore, we let the Workers’ Compensation Judge decide if we were entitled to the overpayment. The judge opined that we did not overpay the claimant and that we would actually recoup the overpayment in future payments, but 20 months later in time. The Workers’ Compensation Appeal Board reversed, finding that we overpaid the claimant, and remanded the case to the judge with instructions to calculate the subrogation lien as of the date of the parties entered into the third party agreement. The Board found no explanation in the record for the delay in finalizing the third party agreement. This will actually increase the subrogation lien for not only the indemnity payment but any medical payment made after February 28, 2019, and before August 19, 2020. We should recover approximately $40,000 between the overpayment and additional medical bills that we paid.
Judd Woytek (King of Prussia, PA) successfully defended a joinder petition alleging that the claimant suffered an aggravation of a prior wrist injury. The Workers’ Compensation Judge credited the opinions of our medical expert that the claimant’s prior injury never fully resolved, and that he did not suffer an aggravation while our client was on the risk. In another matter, Judd successfully argued that our client’s refusal to pre-approve an MRI was not a basis for the claimant to refuse to attend an IME. The judge ordered the claimant to appear for the IME.
Judd Woytek (King of Prussia, PA) successfully defended an appeal by a claimant from a Workers’ Compensation Judge’s decision. The judge granted the claimant’s claim for a closed period of benefits and then terminated benefits as of the date of our IME. The Workers’ Compensation Appeal Board affirmed the judge’s decision in its entirety.
*Results do not guarantee a similar result.
Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.