Law Alerts

Special Pennsylvania Professional Liability Case Law Alert - March 2008

• The U.S. Supreme Court Holds That The Enforceability Of A Contract Containing An Arbitration Clause Is A Matter For Arbitration, Not Litigation

Special Pennsylvania Professional Liability Case Law Alerts - January 2008

• Pennsylvania - - Pennsylvania's Consumer Protection Law Does Not Apply To Attorney's Misconduct In Collecting And Distributing Settlement Proceeds
• Superior Court Maintains Tough Stance On Accrual Of Legal Malpractice Claims

Architectural, Engineering & Construction

• Florida - - 5th District Court Of Appeals Rolled Back Efforts By Plaintiffs Bar To Erode Application Of Economic Loss Doctrine And Clarified And Limited Use Of Claims For Negligent Misrepresentation As Way Around Assertion Of Privity Of Contract As A Defense.
• New Jersey - - Czar, Inc. v. Health, 398 N.J. Super. 133 (2008)
• Pennsylvania - - An Architect Cannot Be Held Liable In Tort For A Prisoner's Suicide In A Prison The Architect Designed.
• Pennsylvania - - Pennsylvania Court Declined To Subject Utility Companies To A Cause Of Action For Purely Economic Damages Under A Negligent Misrepresentation Theory Pursuant To §552(1) To The Restatement (Second of Torts). 

Civil Rights

• Pennsylvania  - - Third Circuit Rules That The Relevant Inquiry In A False Arrest Claim Is What Officers Knew At The Time, Not What Was Gained Through The Benefit Of Hindsight. 
• Pennsylvania - -   Third Circuit Rules That Ongoing Enforcement Of A Custody Order Does Not Represent An Ongoing Course Of Conduct Sufficient To Toll The Statute Of Limitations In A Civil Rights Case.
• Pennsylvania - - Middle District Of Pennsylvania Court Reiterates That Plaintiff Must Demonstrate Deprivation Of Liberty Consistent With A Seizure To Survive Summary Judgment On A Fourth Amendment Claim.
• Pennsylvania - - Third Circuit Warns Litigious Pro-Se Plaintiff That Continued, Frivolous Filings Won't Be Tolerated.
• Pennsylvania - - Circuit Court Rules That Use Of Force Was Reasonable When Solo Officer Was Faced With Uncooperative, Intoxicated Subject.
• Pennsylvania - - Third Circuit Rules That Informing Library Patron Of His Violation Of Library Rules, And Permitting Him An Opportunity To Respond, Comports With The Requirements Of Due Process.
• Pennsylvania - - Third Circuit Rules That Malicious Prosecution Claims For Dismissed Charges May Continue, Even Where The Plaintiff Was Convicted Of At Least One Charge.

E & O Coverage (Legal, Accounting, Insurance, Real Estate, Etc.)

• Delaware - -  New Rule Streamlines ADR In Delaware Superior Court
• Florida - - Insurer's Payment To Insured After Appraisal Acted As A Confession Of Judgment And Entitled Insured To Attorney's Fees
• Florida - - When Suit Is Barred Against A Corporation By The Contractual Privity Economic Loss Rule, The Contracting Party Cannot Bypass The Rule By Suing Corporate Employees For Their Negligent Performance Of The Contract.
• Florida - - The Court Rejects Application Of Section 552, Restatement (Second) Of Torts, Concerning Negligent Misrepresentation, Where An Ecologist Provided Information Used In An Environmental Study That Cause Land Developer To Back Out Of Land Purchase.
• Florida - - Failure To Specially Request Attorney's Fees In Complaint Constitutes Waiver Of The Claim.
• New Jersey - - Trial Court's Decision To Refuse To Reinstate A Legal Malpractice claim After Unexplained Delay Was Proper Under An Abuse Of Discretion Standard Where No Explanation Was Given For The Delay And The Defense Had Suffered Prejudice.
• New Jersey - - Plaintiff's Tactical Decision To Accept Settlement Of A Subsequent Lawsuit against Her Son, Due In Part To Her Own Misdeeds As Well As The Alleged Malpractice Of Her First Attorney, Which Was Being Prosecuted In A Separate Action, Rather Than Allow The Lawsuit To Proceed To Trial, Or To Later Move To Vacate The Settlement, Bars Her Legal Malpractice Claim Against Her Prior Attorney. 
• Pennsylvania - - No Duty To Defend Or Indemnify Law Firm For Fraudulent Acts Of Individual Shareholder.
• Pennsylvania - - Law Firm No Subject To Liability Under §1983 Where Liability Premised On A Theory Of Respondeat Superior.

Employment Law

• Federal - - Employees Can Proceed With Age Discrimination Lawsuits After Filing An Intake Questionnaire And Not A Charge Form With The EEOC Within The Statutory Period. 
• Federal - - It Is Within The Discretion Of The Trial Court On Whether To Allow Age Discrimination Plaintiffs To Introduce Testimony By Workers Companywide That The Were Treated Differently Because Of Their Age. 
• New Jersey - -  The Distribution Of A Mandatory Arbitration Policy For All Employment-Related Disputes, Either In An Employee Manual And/Or In A Separate Handout, Is Legally Sufficient, Binding And Enforceable. 
• New Jersey - - The Employer's Right To Seek Recovery For Fees And Costs Incurred In Defending A Claim Brought It Under The New Jersey Law Against Discrimination Is Premised Upon A Showing Of The Claimant's "Bad Faith."
• New Jersey - - A Parent Corporation Is Not Generally Liable For The Employment Discrimination Of Its Subsidiary Absent A Showing That They Are Integrated Enterprises.  The Most Important Factor Is The Independent Of The Subsidiary In Making Employment Relation Decisions.
• Ohio - - Ohio Supreme Court Holds That An Employee Who Is Terminated From Employment While Receiving Workers' Compensation Has No Common Law Cause Of Action For Wrongful Discharge In Violation Of The Public Policy Underlying R.C. 4123.90. 
• Ohio - -  The Filing Of A Lawsuit By An Employer Against An Employee Or Former Employee Who Has Engaged In Protected Activity Is Not Per Se Retaliatory.
• Ohio - - An Employee Fails To Establish A Prima Facie Case Of Retaliation Or Violation Of Public Policy Where The Supervisors Who Terminated Him Were Unaware Of The Complaints He Made To Other Supervisors Regarding Co-Worker Racial Harassment.
• Ohio - -  Second Appellate District Upholds City Manager's Termination For E-Mail Abuse. 

Fraud & Personal Injury Protection Litigation

• New Jersey - - Fraud Precludes Claim For Coverage When Insureds Submit Fraudulent Bills To The Carrier For Payment Of Their Living Expenses.
• New Jersey - - The Appellate Division Has No Jurisdiction Under The Alternative Procedure For Dispute Resolution Act To Review The Merits Of A Law Division Judgment Affirming, Modifying Or Vacating An APDRA Award.  

Health Care Liability

• Florida - - An Emergency Subsequent to Becoming An OB Patient Does Not Excuse The Need For NICA Notice. 
• Florida - -  NICA Notice Provided By A Doctor Not Employed By The Hospital Was Sufficient.
• New Jersey - - An Affidavit Of Merit Is Not Required To Be Served Against A Licensed Nurse Midwife When Sued In Her Professional Capacity Because A Licensed Midwife Is Not A "Licensed Person" Under The Affidavit Of Merit Statute.
• Pennsylvania - -  A Specific And Comprehensive Joint Tortfeasor Release Operates To Extinguish Both Direct Liability Claims And Vicarious Liability Claims Under Section 8326 Of The Uniform Contribution Among Tortfeasors Act.
• Pennsylvania - - Workers' Compensation Judge's Credibility Determinations Of Conflicting Medical Expert Testimony Will Be Upheld Provided He Or She Articulates An Objective Basis For The Determination.

Insurance Coverage/Bad Faith

• Delaware - -  Mold Spores Constitute Physical Loss Within The Meaning Of Homeowner's Insurance Policy.
• Delaware - - Regulations Promulgated By The Delaware Insurance Commissioner Outlining New Unfair Trade Practices Are Invalid Because The Regulations Exceeded The Scope Of The Commissioner's Authority.
• Florida - - CGL Policy Provides Coverage To Contractor For Repairs Of Damage To Completed Project Cause By Subcontractor's Error.
• New Jersey - Non-Renewal Clause In Excess Policy, Which Mirrors The Non-Renewal Clause In The Standard ISO Policy, Is Construed The Same As The Standard Clause Because Both parties Could Reasonably Expect The Two Clauses Would Be Construed Consistently, Regardless Of Whether The Insurance Department Regulations Apply.
• New Jersey - - Knowledge, Or A Reasonable Basis For Knowledge, That An Automobile Is Being Driven Without The Consent Of The Owner At The Time Of An Accident Is Necessary For A Denial Of PIP Benefits.
• New Jersey - - Negligently Failing to Prevent Child Abuse Can Never Be An "Accident" Under A Homeowner's Insurance Policy.
• Ohio - - Mold Does Not Constitute Physical Damage Under A Homeowner's Insurance Policy Unless It Causes Harm To The Property That Adversely Affects The Structural Integrity Of the House.
• Ohio - - Automobile Insurers Are Not Required To Offer UM/UIM Coverage And, Therefore, Are Free To Include Limitations Or Exclusions On The UM/UIM Coverage.
• Pennsylvania - - UM/UIM Stacking Waiver Provisions Remain In Effect Upon The Acquisition Of Another Vehicle Added To An Existing Multi-Vehicle Policy.
• Pennsylvania - - Regular Use Of A Fleet Of Vehicles, And Not A Particular Vehicle Within The Fleet, Is A Valid Means For An Insurance Company To Exclude Coverage Under A "Regular Use" Provision.
• Pennsylvania - - The Term "Use" As Used In The "Regular Use" Exclusion Of An Automobile Insurance Policy Is Ambiguous And, Therefore, The "Regular Use" Exclusion Does Not Exclude Occupants Of A Vehicle.

Municipal Liability

• New Jersey - - The Tort Claims Act Does Not Apply To Individual Defendants When The Plaintiff Made No Claim Against The School Board And Only Named Its Employee As A Defendant.

Product Liability

• Federal - - The Pre-Emption Clause In The Medical Devise Amendments Of 976, 21 U.S.C. §306k, Bars Strict Liability Claims Challenging The Safety And Effectiveness Of A Medical Device Given Premarket Approval By The Food And Drug Administration (FDA).
• Florida - - The Doctrine Of Strict Liability Does Not Apply To Structural Improvements To Real Estate.
• Ohio - - Ohio's Statute Of Repose, R.C. §2305.10, Provides That No Cause Of Action Based On A Product Liability Claim Shall Accrue Against The Manufacturer Or Supplier Of A Product Later Than Ten Years From The Date The Product Was Delivered To Its First Purchaser Or First Lessee Is Constitutional.
• Ohio - - Ohio's R.C. §2315.18, Limiting Non-Economic Damages In Tort Actions, And R.C. §2315.21, Limiting Punitive Damages In Tort Actions, Are Facially Constitutional.
• Pennsylvania - - Asbestos - It is Appropriate For Courts At The Summary Judgment Stage To Make A Reasoned Assessment Concerning Whether, In Light Of The evidence Concerning Frequency, Regularity And Proximity Of A Plaintiff's Exposure, A Jury Would Be Entitled To Make The Necessary Inference Of A Sufficient Causal Connection Between The Defendant's Product And The Injury.

Securities & Investments Professional Liability

• U.S. Supreme Court Expands Liability Of ERISA Fiduciaries.
• The Federal Arbitration Act (FAA) Preempts The California Talent Agencies Act, So An Arbitrator Decides Contract Validity
• Statute Of Limitations For Claim Under Federal Securities Act Is A Jury Question. 

Workers' Compensation

• New Jersey - -  Court Does Not Have To Consider Payment Of Dependency Benefits Made Within 26 Weeks Of Death Of The Worker If It Deems Payment Was Not Made At A Reasonable Time, Even If Within 26 Weeks.  Further, Change In Apportionment Between The Respondent's Offer And The Amount Ultimately Agreed Upon Between The Dependents May Entitle The Attorney To A Fee.
• New Jersey - - The Respondent Was Not Entitled To challenge A Prior Ruling On A Motion For Medical And Temporary Disability Benefits Where It Previously Withdrew Its Motion For Reconsideration, Failed To Appeal, And Did Not Raise The Challenge In The Pretrial Memorandum.
• New Jersey - - Respondent Insurance Carrier Is Not Liable In Negligence Action Where Its Evaluating Physician Failed To Diagnose A Fatal Condition.
• Pennsylvania - -  An Employer Who Refuses To Pay Medical Bills Based On A Prior Utilization Review Determination That Similar Treatment By A Different Provider Was Unreasonable And Unnecessary May Be Subject To Penalties For Violating The Pennsylvania Workers' Compensation Act.
• Pennsylvania - -  Expert Testimony That The Claimant Is Fully Recovered From All Low Back Injuries Is Legally Insufficient To Support A Termination Of Benefits Where The Claimant's Injuries Were Expanded By A Workers' Compensation Judge In A Prior Decision Dismissing A Termination Petition.
• Pennsylvania - - The Supreme Court Holds That An Amputation, Occasioned By An Earlier Injury, Constitutes A Separate Compensable Specific Loss Injury, And, Thus, The Compensation Rate Payable Is Based On The Average Weekly Wage Of The Claimant At The Time Of The Amputation.