On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories*
CASUALTY DEPARTMENT
Jack Delany, Kristen Worley, case manager Maria Reardon, and paralegal Lisa Bramwell (Philadelphia, PA) achieved a defense verdict in the U.S. District Court for the Eastern District of Pennsylvania in a case where the plaintiff sought more than $20 million for alleged property damages and lost revenue. In 2014, our client, a marine construction company, was retained by the U.S. Navy to conduct pile driving activities at the Philadelphia Navy Yard. The plaintiff, a neighboring commercial property owner, alleged that our client’s pile driving and related activities damaged its property and caused it to lose revenue. All other defendants settled before trial. The plaintiff claimed $20 million in damages against our client. A bifurcated trial began on January 17, 2023. The plaintiff’s demand dropped throughout the nine-day liability phase, which involved numerous scientific and engineering experts and other witnesses. On January 27, 2023, the jury returned its unanimous verdict, attributing 60% of the fault to the plaintiff itself and 25% to the Navy, which resulted in a defense verdict for our client. As a result of the defense verdict on liability, there will be no damages phase.
Erica Arias (New York, NY) obtained a favorable decision in Queens County in a trip and fall claim that occurred outside of a school construction site. Erica received a favorable decision of a pre-answer motion to dismiss the plaintiff’s complaint, while simultaneously succeeding in defending against the plaintiff’s cross-motion seeking leave to file a late notice of claim. The plaintiff filed a summons and complaint, alleging a trip and fall over several cinderblocks located outside of a construction site. In her pre-answer motion to dismiss the plaintiff’s complaint, Erica argued the plaintiff failed to comply with the New York General Municipal Law, which requires a plaintiff to satisfy several preconditions prior to commencing an action against a public corporation, including filing a notice of claim within 90 days after accrual of the claim and performance of a 50-H hearing. The plaintiff opposed and cross-moved, seeking leave to file a late notice of claim. Erica opposed, arguing that should the late filing of a notice of claim be granted, the defendant would incur substantial prejudice as the incident occurred over a year prior and the defendant would not be able to properly conduct the necessary pre-suit investigation, as is the intent of the preconditions prescribed by New York General Municipal Law. The judge granted Erica’s motion to dismiss the plaintiff’s complaint and denied the plaintiff’s motion seeking leave to file a late notice of claim.
Dean Aronin (New York, NY) obtained dismissal in New York Supreme Court, Westchester County, on behalf of a grocery store in a negligence case. The plaintiff was delivering bakery products to the grocery store when he was struck in the eye with a bottle thrown by an unknown individual. The plaintiff brought suit against the grocery store for negligence. The unknown individual was not employed by the grocery store. The grocery store employees were assisting a mother and child who were being followed by this unknown individual, whom they escorted out of the store. An altercation between the unknown individual and the store employees ensued. During the altercation, the unknown individual threw a bottle toward a store employee, but the bottle ended up hitting the plaintiff’s eye. Dean filed a motion for summary judgment, requesting dismissal of the plaintiff’s complaint. The court granted Dean’s motion and determined the defendant established that it did not anticipate that the unknown individual would throw a bottle towards the plaintiff. The plaintiff failed to raise a triable issue of fact that the defendant had any prior similar incidents occurring at its location. The court also opined that, even if the store employee deliberately engaged in the altercation, the bottle being thrown at the plaintiff was a superseding, intervening cause that could not be expected to follow from an altercation.
E. J. Fink (Westchester, NY) had a successful outcome in a case where a family pet was run over by a national delivery service truck. The plaintiff pet owners, residents of Ridgefield, CT, brought claims of emotional/bystander distress and recklessness against the delivery service, after personally witnessing the incident that tragically killed their family dog. E.J. filed a motion to strike (equivalent of 12b(6) in State of Connecticut Superior Court, Judicial District of Fairfield at Bridgeport), citing appellate authority that, because dogs are personal property and bystander distress arises out of human-to-human relationships, plaintiffs were barred from alleging and and recovering any kind of emotional distress damages. He asserted that only the fair market value purchase cost of the pet should be permitted. The plaintiffs cited recent trial court decisions allowing such claims and going against the grain of older appellate cases. Ultimately, the court agreed with E.J., after oral argument, and noted that it could not legislate and make new law.
Matthew Gray (Melville, NY) successfully defended and secured affirmation of a lower arbitration decision in a New York No-Fault/PIP arbitration matter. The appellant, a major medical provider, initially filed suit via arbitration in the fall of 2021. After much back-and-forth and a summer 2022 arbitration hearing, Matthew was able to successfully argue and obtain a decision in our client’s favor. The appellant later filed an arbitration appeal, arguing the lower arbitrator’s findings were irrational, arbitrary, capricious, and incorrect as a matter of law. In his counter appeal/brief, Matthew argued that not only was the lower award proper and based in legal rationale, but there is a limit to an arbitrator’s power when dealing with the exhaustion of an insurance policy’s PIP limits. The Master Arbitrator reviewed the briefs and arguments and ruled that the lower award was, in actuality, proper and legally reasoned. As our client’s policy was fully, completely, and properly exhausted, the Master Arbitrator reaffirmed the lower arbitration decision in full favor of our client and in complete denial of the appellant’s claim.
Sean Greenwalt (Tampa, FL) obtained a dismissal in a Florida No-Fault/PIP action against an out-of-state insurer based on the plaintiff’s failure to arbitrate. The plaintiff filed suit against a New Jersey insurance company over treatment that occurred in Florida. However, the subject policy and the laws of New Jersey required mandatory arbitration prior to initiating litigation. On our motion to dismiss and compel arbitration, the court found that the doctrine of lex loci contractus applied, which required the plaintiff to comply with New Jersey law and policy and to submit to arbitration prior to filing suit. The court entered a final order dismissing the case and compelling the plaintiff to complete binding arbitration.
Walter Kawalec and Carolyn Bogart (Mount Laurel, NJ) obtained a published decision in the New Jersey Appellate Division reversing the denial of a motion to dismiss because of a lack of duty. The plaintiff’s ex-husband drove through the gate at a large, high-rise apartment complex, waited for plaintiff to arrive, and then shot her in the face. Our client was the former management company that ceased its management obligations 17 days before the shooting, when a successor management company took over. The plaintiff argued that our client was negligent based on procedures for securing the lot it put in place when it managed the property. We sought summary judgment, arguing a lack of duty due to the expiration of a management contract. The Law Division judge denied that motion, asserting there were genuine issues of fact and that the jury had to decide whether a duty existed. We persuaded the Appellate Division to grant interlocutory appeal, and then we successfully argued for a reversal. First, the Appellate Division agreed with us that the trial judge erred by holding that the existence of a duty was a jury question and not a question for the court to decide as a matter of law. Second, the Appellate Division held that, since our client no longer had any rights or responsibilities over the security of the premises when the shooting happened, and because there was no indication that the successor management company or the owner of the property could not have changed the procedures which our client had put in place, the former management company owed no duty to the plaintiff and that summary judgment was therefore appropriate.
Lindsay Korn (Melville, NY) successfully defended a petition brought by a medical provider. The provider sought to vacate decisions of a lower arbitrator and master arbitrator, which dismissed a New York PIP claim on the basis that the policy was exhausted. According to the subject ruling, the previous dismissal and its affirmance were rational and, therefore, was not be disturbed.
Wendy O’Connor (King of Prussia, PA) obtained summary judgment for a retail grocery store. The plaintiff claimed to have been injured when she attempted to step into a vendor’s “bread box” that was sitting on the floor beneath the shelf where the product she wished to purchase was located. The plaintiff testified that she had gone to the store to buy a loaf of bread, but when she reached the bread aisle, she found a 3’ x 3’ x 1’ metal box sitting on the floor just beneath her particularly favorite loaf of bread. She also testified that there were grocery carts to the right and left of the box that prevented her from reaching around it, so she stepped into the basket, which was filled with bread loaves. The plaintiff admitted at deposition that she had observed the box as she turned into the aisle, and knew that she might fall and hurt herself if she stepped into the box, but chose to do so anyway. In granting the grocery store’s motion for judgment based upon the assumption of the risk doctrine, the court noted that “reasonable minds could not differ as to the conclusion that the bread box was a known and obvious condition in this circumstance.”
Amanda Podlucky (Orlando, FL) obtained final summary judgment on behalf of our client, a grocery retailer, in a premises liability case where the plaintiff claimed to have fallen while browsing in the store’s deli area. The plaintiff claimed to have slipped due to a clear liquid substance, presumed to be water, but did not see any substance before or after the fall. Instead, she saw a “shiny” spot on the rubber edge of a mat surrounding the salad bar and concluded that it was wet. Despite falling forward onto the tile floor, she neither felt nor saw any liquid on the ground but believed her pants may have been wet. Plaintiff’s counsel deposed all of the employees on duty on the date of the incident, all of whom confirmed that they were unaware of the incident, were unaware of a spill in the deli area on the date of the incident, and that there was no history of spills or incidents in the same area of the store where the fall allegedly occurred. In granting final summary judgment, the court agreed with Amanda’s argument that our client had no actual notice of a spill or substance and that the plaintiff was unable to circumstantially prove constructive notice, as she was unable to prove that a spill was present for such a length of time that our client should have known about it, or that the condition occurred with such frequency that it should have been foreseeable.
Christopher Reeser and law clerk Coryn Hubbert (Harrisburg, PA) were successful in having preliminary objections sustained and the claim against our client dismissed, with prejudice. The plaintiff was injured at our client’s home due to the intentional actions of a third party. The plaintiff’s complaint alleged negligence as to our client for a failure to warn of the third party’s history of violence and failure to take reasonable steps to reduce the risk of harm. Chris and Coryn filed preliminary objections, arguing their client did not owe a duty to protect or warn the plaintiff, nor did she owe a duty to control the conduct of the third party. Chris and Coryn further argued that their client could not be held liable under a premises liability theory because warning a licensee of known, dangerous land conditions does not have an application to the risk of injury from criminal acts of third persons. The court agreed and sustained the preliminary objections, dismissing the count of negligence against the client, with prejudice.
Michael Salvati (Philadelphia, PA) obtained dismissal of his client from a suit pending in Montgomery County, Pennsylvania, on the basis of a lack of personal jurisdiction. The plaintiff, who had addresses in Pennsylvania and Florida, had purchased a used Range Rover that allegedly experienced ongoing maintenance issues. The plaintiff sought repairs from various car dealerships, including our client. When the repairs were unsuccessful, she brought claims for breach of warranty, breach of contract, and unfair trade practices against each of them. Our client had serviced the vehicle once, in Florida, and had no meaningful connections with Pennsylvania. The court was not impressed with the plaintiff’s arguments regarding our client’s website (accessible everywhere, including Pennsylvania) and unspecified, unrelated sales and shipments to Pennsylvania. The court dismissed our client, alone among the defendants, for lack of personal jurisdiction.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained a dismissal of a multiparty action against various churches involving abuse by a pastor of children that occurred during church-based camp activities. Jack and Jeremy were successful in obtaining a dismissal of all counts for abuse filed by all plaintiffs against our client, one of the churches. Our client did not employ the pastor when the abuse occurred and had no knowledge of the claims asserted.
Douglas Suplee (Mount Laurel, NJ) obtained a defense verdict in a two-week jury trial in Middlesex County, New Jersey, in a case against a tavern alleged to have violated the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (aka The Dram Shop Act). The plaintiff claimed the bar violated the Act by serving a patron—a settled co-defendant—alcohol while he was visibly intoxicated, resulting in that patron driving drunk and colliding with the plaintiff’s vehicle. The plaintiff suffered significant injuries to her neck, requiring two cervical fusion surgeries. Police were unable to obtain objective proof of the patron’s blood alcohol concentration (BAC) via a blood sample or breathalyzer. The tavern had no record of the patron, who paid cash for his beverages, and first learned of the accident upon being served with a complaint more than nine months later. At trial, the plaintiff relied on the patron’s deposition testimony as to the timing of three different drinks he consumed at the bar, as well as a toxicology expert, to prove liability. The expert, in providing an opinion as to what the patron’s BAC would have been “while at or when leaving the bar,” used a dose reconstruction methodology based upon the patron’s testimony. However, on cross-examination, we were able to establish that the expert’s calculations of the amount of pure alcohol ingested by the patron were erroneous and unreliable and that the expert never provided an opinion as to whether the patron was visibly intoxicated at the time of service—the key issue in any Dram Shop case.
Tom Wagner and Kimberly House (Philadelphia, PA) obtained dismissal, with prejudice, of a wrongful death and survival action against their client, a home aide care service. The plaintiff filed an action alleging that employees of our client transmitted COVID-19 to his elderly parents and that, as a result, both of the plaintiff’s decedents passed away. We filed preliminary objections on the grounds that Pennsylvania does not recognize a duty to prevent a ubiquitous, communicable virus such as COVID-19, that the tort claims were barred by the gist of the action doctrine, and on the grounds that the allegations do not give rise to punitive damages.
PROFESSIONAL LIABILITY DEPARTMENT
Brigid Alford (Harrisburg, PA) and Allison Krupp (Harrisburg, PA) obtained dismissal of both bad faith and Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims in a case filed in the Eastern District of Pennsylvania. The case arose from a UIM claim presented after a motor vehicle accident. In an extensive footnote to the order, the court included a fairly comprehensive overview of the standards for pleading viable bad faith in UTPCPL claims in Pennsylvania. The court did not allow the plaintiff the opportunity to amend his complaint in order to cure the pleading defects.
Christopher Block (Roseland, NJ) obtained a defense verdict in a one-week trial in Hudson County, New Jersey, in a case where the plaintiff alleged that the defendant, an insurance producer, failed to alert him of a policy renewal coming up and then failed to advise him that the policy had lapsed and he had no insurance. The plaintiff claimed the defendant breached a contract to provide him with notices by email and that the defendant breached a duty of care in a claim for professional negligence. Due to the breadth of the insurance policy at issue, the claim against the defendant was for $500,000. At trial, the plaintiff relied upon his testimony that he did not receive the notices or any calls from the defendant regarding the lapse. Christopher argued and was able to establish that any potential breach of contract or breach of a professional duty of care was not the proximate cause of the plaintiff’s damages because he failed to take any steps to either calendar or diary his insurance renewal deadlines and also failed, historically, to timely renew his insurance policies in the eight years preceding this loss. The jury agreed with Christopher and found that the plaintiff could not establish a proximate cause between the alleged breach of a duty of care and his damages.
Jeffrey Chomko (Philadelphia, PA) successfully defended a home appraiser in a regulatory investigation undertaken by the Pennsylvania Commonwealth Bureau of Enforcement relating to the appraisal of a five-acre parcel of property. The complainant contended the valuation arrived at by the appraiser (as part of a divorce proceeding) was artificially low given the fact the parcel was sub-dividable. Jeff was able to convince the investigator that the appraisal number was in line with comparable properties in the area, particularly given some of the ingress issues involved in accessing the property. After an in-person interview of the appraiser and submissions, the investigator elected to shut the investigation down and take no further action against our client.
Christopher Conrad (Harrisburg, PA) successfully defended a local school district in a special education due process matter involving a middle school student diagnosed with epilepsy and ADHD. Throughout middle school, the student was accommodated for his medical conditions through a 504 Service Agreement, and was provided intensive, small group instruction in reading and math, as he struggled in those areas. The student was evaluated for special education twice by the school district, at the parents’ request, because they believed he might have a learning disability. The school district concluded both times that the student did not have a learning disability; however, the district also determined in the second evaluation that the student was eligible for special education with an Other Health Impairment, in light of his medical diagnoses. The school district presented the parents with an Individualized Education Plan (IEP) for the student, which they initially approved. Before the school district had a chance to implement the plan, however, the parents unilaterally withdrew the student from public school and placed him at a private school for children with special needs. In their complaint, the parents claimed the school district conducted inadequate evaluations and, therefore, failed to timely identify the student as eligible for special education (and to recognize his alleged learning disability), and that the school district denied the student a Free Appropriate Public Education by offering him an inadequate IEP. The parents also claimed the school district failed to take appropriate measures to prevent the student from being bullied by his peers. The family sought, among other relief, reimbursement for the cost of the private school at the school district’s expense, reimbursement for the cost of a private educational evaluation and a finding of intentional discrimination because of the school district’s response to the alleged bullying. After nine hearing sessions, the Hearing Officer found in favor of the school district on all claims. Preliminarily, the Hearing Officer agreed with our argument that the complaint was not timely filed and, therefore, much of the parents’ claim was precluded by the IDEA statute of limitations. The Hearing Officer also found that the school district’s evaluations were appropriate and that the family was not entitled to tuition reimbursement because there was insufficient evidence to show the private school was an appropriate placement. Additionally, the Hearing Officer concluded that the school district responded promptly and appropriately to the parents’ reports of alleged bullying and, therefore, the school district did not discriminate against the student.
Ray Freudiger and Donnielle Willis (Cincinnati, OH) successfully defended an insurance broker in a negligence claim. After a tornado damaged his property, the third-party plaintiff rented an excavator that was damaged due to a collision during its operation. Before renting the excavator, the third-party plaintiff contacted our client, an insurance broker, requesting that the agency procure insurance to protect him against loss to the excavator. Our client arranged for third-party plaintiff’s purchase of two policies; however, the specific collision that occurred was not covered under either policy. The insurance company for the rental facility paid for repairs to the excavator and demanded reimbursement from the third-party plaintiff who, in turn, requested our client satisfy the claim. The third-party plaintiff eventually dismissed his claims against our client after Ray and Donielle argued: (1) the third-party plaintiff could not satisfy the elements needed to establish a negligence claim; (2) our client made no negligent misrepresentation of fact; and (3) our client did not owe a fiduciary duty to the third-party plaintiff. There were no facts to support a finding that there was negligence just because this specific instance was not covered by the policies in place. An insurer has a duty to read his policies and a failure to do so does not impute negligence. Additionally, there was no misrepresentation of facts and there was no fiduciary duty between the agent and the insured. For there to be a fiduciary duty between an agent and insured, there must be a mutual understanding of such, which was not the case here.
Ray and Donielle also successfully argued in their motion for judgment on the pleadings and oral argument that a plaintiff’s claims against a local police department were precluded by law. First, Ray and Donielle argued that our client was not an entity that could be sued. Second, they pointed out that the statute of limitations applied to bar the plaintiff’s claims. Finally, they contended our client was immune from liability pursuant to R.C. § 2744.01, even if they could be sued. The plaintiff attempted to argue his case for excessive use of force, malicious prosecution and emotional distress for being arrested after he was fired from his place of employment. The judge ultimately granted our motion and dismissed plaintiff’s claims.
John Gonzales (Philadelphia, PA), with assistance from Ashley Toth (Mount Laurel, NJ) and Joshua Brownlie (Philadelphia, PA), obtained a jury defense verdict in the U.S. District Court for the Eastern District of Pennsylvania in a Section 1983 malicious prosecution case. The plaintiff alleged that city narcotics officers planted drugs and stole money from her and then falsely charged her with possession and possession with intent to distribute crack cocaine. The criminal charges against her were dismissed following a Post Conviction Relief Act hearing.
John Gonzales (Philadelphia, PA) obtained a defense verdict in a Pennsylvania Whistleblower Law trial before the Court of Common Pleas of Montgomery County. The plaintiff alleged she had been removed from her position as the Township Building Code Official and demoted to a lesser position in retaliation for testifying before a grand jury investigating allegations of misconduct involving a mixed-use apartment complex being developed within the Township.
Mark Kozlowski and Jordan Mazzoni (Scranton, PA) defended an employer alleged to have violated the Pennsylvania Medical Marijuana Act. The plaintiff sought employment as a fork lift operator in a manufacturing facility. He was extended a conditional offer of employment, contingent on passing a pre-employment drug test. His drug test showed a positive indication for the presence of marijuana, and his offer was rescinded. The plaintiff claimed that he notified the facility that he held a valid Medical Marijuana Identification Card, yet our client still rescinded its offer in violation of the Pennsylvania Medical Marijuana Act. The Act prohibits an employer from refusing to hire a person solely on the basis of that person’s status as a certified medical marijuana user. In response to the complaint, we filed preliminary objections arguing that the employment offer was expressly contingent upon passing a drug test. We also argued that fork lift operation is, by its very nature, an inherently dangerous job that, if done carelessly or under the influence of a narcotic, could result in injury or death to the plaintiff or others on the premises. The court held that the Medical Marijuana Act’s provisions do not require an employer to hire a medical marijuana user as a forklift operator and taking on a substantial risk of liability for injury to persons. Additionally, the court found that a medical marijuana user does not have a right to be hired by a prospective employer who, prior to such hiring, determines that the position for which the prospective employee would be hired would require his or her performance of tasks an employer deems life-threatening to the employee or any of its employees. The demurer was sustained, and the complaint was dismissed.
Todd Leon (Mount Laurel, NJ) prevailed on a motion for summary judgment with respect to the applicability of a UIM “step down” clause. Following an accident with an underinsured tortfeasor, the underlying plaintiff sought UIM recovery under three policies, including one issued by our client with limits of $500,000. Todd successfully argued that our client’s UIM limits of $500,000 “stepped down” to the $100,000 UIM limits of the plaintiff’s own policy, pursuant to our client’s policy language.
Todd also prevailed on a motion for summary judgment, dismissing a fire loss claim by an insured under her homeowners policy. The U.S. District Court granted Todd’s motion for summary judgment filed on behalf of our client, which had issued a homeowners policy to the plaintiff. In finding in favor of the insurer, the court concluded that both the Appraisal clause and the Suit Against Us clause of the policy applied such that the insured’s claims against the insurer were both precluded by virtue of a prior appraisal award and by being time-barred.
Howard Mankoff (Roseland, NJ) successfully represented an attorney who was the subject of an ethics investigation. Our client represented a plaintiff in a personal injury action. The personal injury plaintiff had signed a lien letter, agreeing to repay her physical therapist from the proceeds of the personal injury claim. After the case settled, our client reimbursed the physical therapist for less than the amount billed by the therapist, who filed the ethics complaint. Howard successfully argued that our client was representing the best interests of his client, who claimed the bills were excessive.
Ryan Friel (Philadelphia, PA) obtained dismissal of a Financial Industry Regulatory Authority (FINRA) case in which the claimant was seeking in excess of $200,000 in damages. The dismissal was based upon FINRA’s rule setting forth a six-year eligibility period in which a claim may be arbitrated. The claimant made the investments at issue in 2015 but did not file his Statement of Claim until 2022. Claimant’s counsel argued that the “trigger date” for eligibility was in 2018, the date the claimant learned of an alleged Ponzi scheme involving his investments. We argued that the eligibility period began on the date of the investments in 2015. The three-member panel of arbitrators unanimously agreed with our position.
William McPartland and Jacob Gilboy (Scranton, PA) obtained dismissal of a federal Rehabilitation Act suit against a school district. The plaintiffs filed a complaint stemming from the school district’s alleged violation of Section 504 of the Rehabilitation Act. We prepared a F.R.C.P. 12(b)(6) motion to dismiss, arguing that the plaintiffs’ pleadings were insufficient to show that the student was disabled under the Act, that the district did not discriminate against the student, and that an isolated incident or comment from one teacher does not impart liability in violation of Section 504. The motion was first evaluated by U.S. Magistrate Judge Martin C. Carlson, who issued a report and recommendation that the motion be granted and the plaintiffs’ complaint be dismissed. The plaintiffs objected, and we briefed the district’s position that the report and recommendation should be adopted. Thereafter, U.S. District Judge Jennifer Wilson held that the report and recommendation contained no clear errors or manifest injustice, and that “plaintiffs’ objections merely express disagreement with Judge Carlson’s analysis and attempt to rehash or restate arguments already considered and rejected by Judge Carlson in the thorough report and recommendation.” As a result, our motion to dismiss was granted, and the plaintiffs’ complaint was dismissed with prejudice.
Patricia Monahan (Pittsburgh, PA) successfully defended a public school district that had been sued in federal court for not providing busing to charter schools within its district. The charter schools sought a temporary restraining order and a preliminary injunction to prevent the district from prioritizing busing to students attending traditional schools over those attending charter schools. The court agreed with Trish’s argument that the district was fairly maximizing its bus driver resources to service the most students possible.
Patricia Monahan (Pittsburgh, PA), Christian Marquis (Pittsburgh, PA), and Audrey Copeland (King of Prussia, PA) successfully appealed a summary judgment in favor of our insurance client that had been sued by another insurance carrier for more than $1.6 million in damages arising out of a fire loss to an insured auto repair facility. The opposing insurance company had paid $1.6 million in damages and intended to pursue a product liability claim against a vehicle manufacturer, alleging a defectively manufactured vehicle had caused the fire. 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 the vehicle was destroyed despite a promise to preserve. The Pennsylvania Superior Court affirmed the Court of Common Pleas of Erie County’s rejection of the claims against our client and agreed with our contention that the promissory estoppel claim was a disguised claim for negligent spoliation, which the Supreme Court of Pennsylvania does not recognize.
Aaron Moore and Joshua Brownlie (Philadelphia, PA) successfully obtained from the U.S. Court of Appeals for the Third Circuit affirmance of a district court order dismissing a federal civil rights lawsuit. A panel of the the Third Circuit unanimously affirmed an order of the U.S.D.C. for the District of Delaware which granted our Rule 12 motion to dismiss in favor of law enforcement officials. The plaintiff filed suit under Section 1983, seeking damages for the alleged violation of his Fourth and Fourteenth Amendment rights following a traffic stop for driving under the influence of alcohol and the lawful seizure of blood alcohol evidence. The officials moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing the Fourth and Fourteenth Amendment claims were barred by the claim accrual rule in Heck v. Humphrey, 512 U.S. 477 (1994). The district court agreed and dismissed the lawsuit. The plaintiff appealed. Counsel argued on appeal that the plaintiff was convicted of “reckless driving” and was subject to the “alcohol-related” penalty provision of Delaware’s reckless driving statute. As such, the imposition of the plaintiff’s sentence required his willful or wanton disregard for safety of others be related to alcohol use. The Third Circuit agreed. In affirming, the court explained, “[c]onsidering that alcohol involvement was the basis for the alcohol-related penalty provision and considering the evidence obtained through the challenged search was integral to establishing the involvement of alcohol, any error in the search would not be harmless.” Because the plaintiff failed to show his sentence had been set aside, the court agreed that the plaintiff could not bring his claims.
Carolin Pacheco (Orlando, FL) and Danielle Robinson (Fort Lauderdale, FL) won summary judgment in the U.S.D.C. for the Middle District of Florida in a first-party coverage case challenging the prompt notice of an insurance claim. The plaintiff alleged extensive damage to the insured premises, including the alleged need to tear out and access the cast iron plumbing for its full replacement following a toilet overflow at the property. The plaintiff failed to report the loss for 20 months following the alleged date of loss. In a written motion, Carolin and Danielle argued that the plaintiff could not rebut the presumption of prejudice because, at the time the insurance carrier investigated the loss, there was no actual damage to the property. The court agreed and granted summary judgment in favor of our client.
Dante Rohr (Mount Laurel, NJ) obtained dismissal of a third-party complaint against an insurance broker. In this case the third-party plaintiff alleged the broker failed to procure a CGL policy without a lead exclusion, resulting in no coverage for a tenant’s lead poising claims.
Joseph Santarone and Joshua Brownlie (Philadelphia, PA) successfully obtained summary judgment in favor of a township. The Court of Common Pleas of Bucks County entered judgment as a matter of law in favor of the township, dismissing with prejudice the plaintiff’s negligence and negligent supervision claims. We argued, and the court agreed, the township was immune from liability pursuant to Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et. seq.
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful at trial in the New Jersey Superior Court on behalf of their client, a New York law firm. After receiving legal invoices from our client, the plaintiff filed a legal malpractice complaint alleging fraudulent billing. At trial, the legal malpractice claims against our client were dismissed, leaving the fee claim we asserted in the counterclaim to be decided by the jury. The jury rendered a verdict in our favor within 15 minutes for the full amount of the invoices owed to the firm, $244,759.59. This victory is significant since, pursuant to the contract the plaintiff entered into with our client, the judgment on the counterclaim will total approximately $500,000.00 in interest and attorneys’ fees.
Jack and Jeremy were also successful in obtaining a dismissal of an ethics grievance against their client, a matrimonial attorney in northern New Jersey. The ethics grievance alleged that money in the grievant’s trust account was improperly handled since the ledger cards were completed incorrectly. Upon interviewing our client, the ethics investigator determined that no ethical violation was present since the money at issue was fully accounted for in the Trust account, despite the allegations by the grievant.
Thomas Wagner, Thomas McKenzie, and Melanie Foreman (Philadelphia, PA) received a favorable decision from the Philadelphia County Court of Common Pleas Commerce Program. Our motion to strike the plaintiffs’ class action certification was granted, effectively dismissing the plaintiffs’ attempts at a class action lawsuit against a transportation authority.
David Williamson (Cincinnati, OH) successfully defended an appeal of summary judgment granted in favor of our client in the Kentucky Court of Appeals. The court agreed that our client, an insurance company, was entitled to challenge liability for the plaintiff’s claim and defend its insured, despite the requirements of the Kentucky Unfair Claims Settlement Practices Act.
WORKERS’ COMPENSATION DEPARTMENT
Angela DeMary (Mount Laurel, NJ) and William Murphy (Roseland, NJ) successfully obtained a dismissal for lack of jurisdiction and coverage for an occupational accident policy carrier. The petitioner filed a claim petition within the New Jersey Division of Workers’ Compensation, seeking benefits and alleging employment with a trucking company. However, the petitioner had previously obtained an occupational accident policy as an independent contractor. When filing the workers’ compensation petition, the petitioner’s attorney erroneously named the occupational accident policy carrier as the carrier for the trucking company. Although it would appear clear that jurisdiction and coverage do not exist in such cases, most times it is a lengthy process to have such matters addressed by the court and ultimately dismissed.
Benjamin Durstein (Wilmington, DE) succeeded in having the Industrial Accident Board grant his motion for reimbursement of total disability benefits tendered that were offset by contemporaneous short-term disability payments. The Board denied the claimant’s motion to compel production of paystubs that he claimed were required to determine the appropriate offset amount, if any. The Board reasoned that the information provided was sufficient to calculate the overpayment amount and that the Fair Labor Standards Act did not require the pay records be kept in any particular form.
Benjamin also was successful in having a petition to determine additional compensation for increased medical bill payments for ketamine infusion procedures denied. The Hearing Officer rejected the claimant’s argument that she was entitled to the “reasonable cost” of the treatment pursuant to Section 2322(b) and held that the employer had correctly applied and paid for the treatment in accordance with the Delaware Fee Schedule pursuant to Section 2322B(7).
In a third matter, Benjamin successfully argued before the Industrial Accident Board that a claimant’s work injuries had resolved. The Board determined that the claimant’s cervical strain and lumbar strain injuries resolved as of January 24, 2022. The Board reasoned that the claimant was not pain free because of preexisting issues prior to the work accident, that there was no indication of radiculopathy immediately after the work accident, and that her ongoing problems were localized to the levels of her spine adjacent to prior fusion surgeries, all of which indicated she was treating for her preexisting condition rather than the injuries sustained at work.
Keri Morris-Johnston (Wilmington, DE) successfully defended a claim for a total knee replacement following a compensable knee injury. Keri argued the treatment was neither reasonable nor necessary because the claimant failed to attempt conservative care. The Industrial Accident Board agreed and denied the benefits.
Keri also successfully defended a COVID-19 claim involving a registered nurse. The plaintiff alleged she was exposed to COVID-19 while caring for a patient and infected both of her adult sons. One son died from COVID-19. Keri argued that COVID-19 was not an occupational disease and that she could not establish she contracted COVID-19 at work. The Industrial Accident Board agreed, resulting in a significant win for the employer.
Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition and defended a review petition (challenging the nature of injury) on behalf of a local professional veterinary clinic. The claimant was injured when a large dog pulled her down during a walk. Injuries to the claimant’s shoulder were accepted as compensable. The claimant treated her shoulder for a period of time and then stopped. Nearly a year later, she re-initiated treatment for her shoulder and added the neck to the equation with potential surgery. The matter entered litigation on the issues of full recovery and the efficacy of additional injuries. The court accepted defense evidence supporting full recovery and rejected any new injuries.
Tony also proved that a claimant of a Berks County, Pennsylvania, mushroom facility refused available employment within her physical restrictions. The claimant had injured various body parts, including her neck. A job offer was made for a visual inspection position that required no physical duties. The claimant refused the job, alleging that visually inspecting product would aggravate her neck symptoms. Tony was able to place into evidence a video depicting the job in question and presented medical evidence documenting the claimant’s ability to return to the position. The court accepted all defense evidence as the most credible and found the claimant refused available employment in bad faith.
Tony, with the aid of paralegal Pamela Del Percio (Philadelphia), successfully prosecuted a suspension petition in a case of first impression in Pennsylvania. The claimant sustained a compensable mental injury while employed with the employer. Thereafter, he refused to attend an Impairment Evaluation after receiving 104 weeks of indemnity benefits due to his injury. The court initially issued an order compelling the claimant’s attendance. Nevertheless, the claimant maintained his refusal to attend the evaluation, citing the fact that he was COVID positive and required to quarantine. Tony demanded that verification of the virus be made part of the evidence record. In response, claimant’s attorney submitted into the evidence record a COVID testing result, which was an at-home test. Pam reviewed the testing result and found that it was a fake—there was a pornographic image contained in the window of the positive testing result, and Pam determined through internet research that this fake test was being used all over the United States. The claimant’s attorney was unaware that the test was fake and maintained it as part of the evidence record. At oral argument, Tony referred the court to the manufactured evidence and not only argued for a suspension of benefits, but also alleged that the claimant violated the fraud provisions of the Pennsylvania Workers’ Compensation Act. Claimant’s attorney immediately removed himself as counsel of record. The court determined, based on the evidence, that benefits were suspended and actually concluded as a matter of law that the claimant committed fraud (a decision of first impression in Pennsylvania). A formal criminal fraud action will likely follow.
Michele Punturi (Philadelphia, PA) successfully defended a claimant’s appeal of a judge’s decision to terminate benefits based upon a full recovery opinion on behalf of a multi-national automotive manufacturing corporation. The claimant argued to the Appeal Board that the judge’s decision was not supported by substantial, competent evidence. The claimant argued that the employer did not establish a change in physical examination from the time of the last disability adjudication. Michele argued, and the Appeal Board agreed, that the defense expert’s opinion (a board certified orthopedic examination, three examinations of the claimant, the most recent comprehensive exam and his review of medical records and diagnostic films) supported a change in physical examination such that the claimant had no objective findings in relation to the work injury, non-work-related conditions, and no need for any ongoing medical treatment. Further, the Appeal Board found the judge did not accept as credible the claimant’s testimony or the medical evidence submitted by the claimant. The Appeal Board ultimately concluded that the judge did not err in finding that the defense met the change in condition standard per Lewis v. WCAB (Giles and Ransome, Inc.), 919 A.2d, 922 (Pa. 2007) and Delaware County v. WCAB (Browne), 964 A.2d 29, 33-34 (Pa. Cmwlth. 2008).
Michele also successfully appealed a judge’s decision on behalf of a multi-national retailer, establishing a modification of benefits to partial disability, as opposed to total disability. This was established through medical evidence and factual testimony of two employer witnesses, whose testimony proved that, during the period the claimant was briefly laid off while the employer was closed due to the COVID-19 pandemic, any earning loss fully attributable to the work injury was only partial in nature. Therefore, the claimant was only entitled to earnings for the loss of one day per week attributable to her injury, but not the remaining wage loss attributable to the pandemic closing. As a result, the employer was entitled to a Supersedeas Fund Reimbursement.
Michele also successfully defended a claim petition on behalf of a local hospital. The judge’s decision was based upon a full recovery opinion by a Board Certified orthopedic surgeon—who was found credible, competent, and persuasive given his credentials; his clear, concise, and credible understanding of the claimant’s extensive history; and his review of post- and pre-injury records, along with his review of the diagnostic study films supporting no post-traumatic abnormalities. Based upon this strong medical expert testimony, the judge limited the claimant’s claim to a period of three months only, despite the claim for ongoing total disability, and did not expand the claimant’s nature of injury to include a herniated disc in the lumbar spine. In addition to expert deposition testimony, surveillance was also submitted and accepted, which demonstrated that the claimant’s activities were contrary to any ongoing disability. Additionally, extensive medical records demonstrated that the claimant downplayed her prior injuries and her complaints, in a manner completely inconsistent with the actual medical records. Further, the judge recognized Michele’s cross-examination of the claimant’s medical expert, particularly with respect to his credentials, his analysis of the MRI, and his failure to identify a herniated disc diagnosis in all of his medical records, while testifying to the same in an effort to support the claimant’s allegations.
Rachel Ramsay-Lowe (Roseland, NJ) successfully excluded the cervical spine from an established workers’ compensation claim. The claimant injured his lumbar spine and alleged he passed out while at home from the lumbar spine pain, causing a neck injury. Rachel presented hospital records revealing no injury to the cervical spine and that the claimant did not seek any medical treatment to the cervical spine until seven months after this alleged incident.
Judd Woytek (King of Prussia, PA) obtained a favorable decision denying a claim petition that alleged a low back injury, including sprain/strains and intervertebral disc displacement status after multiple surgeries. The claimant had a lumbar laminectomy in 2016 and a lumbar fusion in 2018. He alleged a work injury in April 2019 when emptying a small trash can into a dumpster. During the course of the litigation, however, the claimant and his doctor offered testimony that the claimant’s back problems, including the 2016 and 2018 surgeries, were related to his general employment duties with the employer and that the April 2019 incident was the “straw that broke the camel’s back.” Judd presented expert medical testimony from an orthopedic surgeon that the claimant’s back problems were degenerative in nature and were not caused or aggravated by his work activities or the alleged April 2019 incident. The judge denied the claim petition outright and found that the claimant had failed to sustain his burden of proving any work-related injury.
Judd also successfully defended a review petition in which the claimant was seeking to expand the description of injury to include major depressive disorder and general anxiety disorder. The claimant had contracted COVID in the workplace and believed she gave it to her husband, who subsequently passed away. The claimant also sought penalties for the employer’s failure to pay for psychiatric treatment. The judge denied and dismissed the claimant’s petitions.
Judd also successfully limited a claim for a foot and ankle injury to a closed period of less than four months. The judge found our expert credible and terminated benefits as of the date of our Independent Medical Exam, thus, saving our client thousands of dollars in medical treatment that the claimant had received after the date of the IME and termination of benefits.
Judd was also successful in defending a Yellow Freight motion by establishing that the employer was never served with the notice of assignment of the claim petition to a judge. While the claimant’s attorney had properly served the claim petition itself on the employer, Judd correctly argued that it is the notice of assignment that triggers the employer’s obligation to file an answer within 20 days. Judd was able to prove that the employer’s address on the notice of assignment had the wrong zip code and that the employer was never served. Therefore, the judge found that the employer had a reasonable excuse for its late answer to the claim petition.
*Results do not guarantee a similar result.
Defense Digest, Vol. 29, No. 1, March 2023, is prepared by Marshall Dennehey 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. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.