Defense Digest, Vol. 25, No. 4, December 2019

On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

In this workers’ compensation matter, Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to affirm the Workers’ Compensation Appeal Board’s and the workers’ compensation judge’s decisions denying the claimant’s petition for review of a utilization review. The employer had filed a utilization review petition regarding the claimant’s long-term treatment with oxycodone prescriptions for the work injury. The claimant intended to resume working for the employer after completing detox for opioid use. The reviewer found the treatment not to be reasonable and necessary as of a certain date, and the judge and Board agreed. The credited evidence Audrey presented was that: (1) non-pharmacologic and non-opioid pharmacology is preferred for chronic pain; (2) the claimant had been released from the provider’s care and there were originally no plans to return; (3) the claimant had been taking “massive” doses while only reporting a small and not meaningful improvement in pain relief and functionality; (4) the opioid use may have contributed to his ongoing symptoms; and (5) the serious risks of longtime opioid use outweighed the minor benefits to the claimant. Golembesky v. Workers’ Comp. Appeal Bd. (Worth & Company, Inc.), 219 Pa. Commw. Unpub. LEXIS 370 (Pa. Cmwlth. July 9, 2019).

Audrey also obtained the Superior Court’s affirmance of the dismissal of a medical professional negligence action where the plaintiff failed to provide certificates of merit as required by Pa.R.C.P. 1042.3. The court held that the trial court did not abuse its discretion because the plaintiff only submitted an unsigned “certificate of merit” and a written statement purportedly from the physician—with his name misspelled—and failed to supply a conforming certificate of merit. The plaintiff also did not timely raise her constitutional issues before the trial court; therefore, these issues were waived for purposes of appellate review. Nagle v. Allegheny General Hospital, 2019 Pa. Super. Unpub. LEXIS 2660 (Pa.Super. July 12, 2019).

Kimberly Boyer-Cohen (Philadelphia, PA) obtained a victory before the Pennsylvania Superior Court. ​Kim obtained an opinion reversing the trial court’s order entry of judgment in favor of the general contractor, Morrissey, and against our client, subcontractor, Armour, on the grounds that the contract between Morrissey and Armour only required Armour to indemnify Morrissey if Armour was found to be negligent. The jury found that Armour was not negligent. Tom Bracaglia tried the underlying case before the jury. Kushner v. Conex Freight, Inc., 2019 Pa. Super. Unpub. LEXIS 3175 (Pa.Super. Aug. 19, 2019).

Kevin Bright, Lila Wynne and Walter Kawalec (Mount Laurel, NJ) prevailed in an appeal to the Third Circuit Court of Appeal. ​In this environmental coverage action, Lila and Kevin represented the primary carrier in a claim against the excess carrier for payments made that exceeded the primary policy limits. The case involved payments made by each carrier on behalf of a mutual insured for resultant damages at five landfills located throughout southern New Jersey. The trial court found that our client’s claims related to one of the landfills was barred by the statute of limitations and dismissed the entire case, including claims related to the other landfills. The trial court reasoned that the payments made by our client on the remaining landfill claims did not independently exceed the primary policy limits; therefore, our client could not establish exhaustion. The trial court held, therefore, that our client could not recover payments made on the other landfill claims from the excess carrier, even though there was no dispute that those claims were not barred by the statute of limitations. On appeal, Walt argued that the trial court erred in dismissing the claims related to the other landfills, since it was undisputed that those claims were not barred by the statute of limitations, and the payment made on the claim that was barred still exhausted our client’s policy limits, even if our client was unable to recover that amount due to the statute of limitations. On appeal to the Third Circuit, the court agreed and remanded the case on that basis.

*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 25, No. 4, December 2019 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. © 2019 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