Delaware court finds ‘issue of fact’ precluding summary judgment, despite metadata in photograph files proving the issue, that the court held was ‘an issue of material fact’ that precludes judgment as a matter of law.

Westchester
Trucking & Transportation Liability
This action involved a motor vehicle collision where the factual dispute at issue on summary judgment addressed whether the plaintiff had timely filed her complaint.  Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Appellate court affirmed trial court’s determination that erroneous admission of evidence that defendant was terminated as a result of accident constituted “harmless error” and was not grounds for vacating judgment in favor of plaintiff.

Westchester
Trucking & Transportation Liability
The plaintiff, a nursing assistant, was sitting in the front seat of an ambulance that rear-ended a vehicle at a red light in poor weather conditions. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Fourth District Court of Appeals reverses itself regarding application of the 2007 Medicare Part B Non-Facility Limiting PIP claims and certifies conflict with the Third District Court of Appeals.

Fort Lauderdale
Personal Injury Protection (PIP) Litigation
This suit involved the legal issue of whether Progressive Select Insurance Company incorrectly determined the reimbursement rate for the imaging services provided by In House Diagnostic Services while treating Darryl Frazier for and injury sustain Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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2007 Medicare Part B Non-Facility Limiting Charge is not a fee schedule, and insurers are permitted to use rates established by Participating Physicians Fee Schedule when reimbursing diagnostic codes, thus certifying conflict with the Third DCA.

Fort Lauderdale
Personal Injury Protection (PIP) Litigation
This suit involved a dispute regarding application of the 2007 Participating Physicians Fee Schedule. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Appellate Division decision finds attorney-verified pleadings insufficient from both parties, highlighting need to support applications and oppositions on issues such as motions to dismiss, defaults, etc. with specific facts and likely affidavits.

Westchester
Trucking & Transportation Liability
In a highly regular procedural development, the defendant in a vehicular accident failed to timely answer, and the plaintiff moved for a default. In response, the defendant interposed an answer verified only by his attorney. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Supreme Court of New York, Appellate Division reversed trial court’s denial of defendant’s motion for summary judgment on issue of liability because record evidence demonstrated that defendant proved he was absolved of liability under emergency doctrine.

Harrisburg
Automobile Liability
The plaintiff was the front seat passenger of a vehicle that turned left in front of the defendant. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Third District Court of Appeals affirms trial court’s decision allowing a fully completed and executed CMS Form 1500 to serve as an “itemized statement” pursuant to Florida Statute 627.736(5)(d).

Fort Lauderdale
Personal Injury Protection (PIP) Litigation
This appeal involved a suit for the payment of personal injury protection (PIP) benefits. The insured treated with Pan Am Diagnostic of Orlando and, in exchange, assigned her right to pursue PIP benefits. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Supreme Court of New York, Appellate Division affirmed trial court’s grant of summary judgment in favor of plaintiff on issue of liability where plaintiff made prima facie showing of negligence against defendant, who failed to raise triable issue of fact.

Harrisburg
Automobile Liability
The plaintiff was struck by the defendant’s vehicle as she crossed the street. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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In-state flea market is not a seller of a product and no negligence duty exists for a flea market that merely markets and facilitates the sale of an allegedly defective product.

Philadelphia - Headquarters
Product Liability
The plaintiff, a Pennsylvania citizen, brought suit in Philadelphia County, claiming injuries suffered from a defective snow thrower for which a recall had been issued. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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Appeals court held that alleged violation of Ohio’s Assured Clear Distance Ahead statute qualified as a separate cause of action, requiring specific analysis from trial court and dismissing appeal for failure of order to be a final judgment.

Westchester
Trucking & Transportation Liability
This matter involved a pedestrian and motor-vehicle accident—the defendant struck two individuals walking on a highway off-ramp, who were allegedly intoxicated at the time. Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers.
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