Law Alerts

Special Law Alert

• Red Flag Rules Update: Court's Opinion May Open The Door To Additional Challenges

Special Health Law Alert

• HIPAA Breach Notification Rules Effective September 23, 2009 

Architectural, Engineering & Construction

• New Jersey - A Third Party Claims Seeking Indemnification And Contribution Against A Design Professional Need Not Be Supported By An Affidavit Of Merit Until The Plaintiff First Articulates A Claim Implicating Professional Negligence On The Part Of The Third Party Design Professional.
• Pennsylvania - A Certificate Of Merit For A Professional Liability Claim Is Only Required When The Claim Derives From A Professional Relationship And It Implicates Professional Judgment.
• Pennsylvania - The Certificate Of Merit Rule Does Not Apply To A Products Liability Claim Involving Defective Design By A Licensed Professional Engineer. 

Auto

• Delaware - As A Matter Of First Impression, A Party May Be Compelled To Pay An Opposing Party's Expert's Fees For The Time The Expert Prepared For His Deposition; However, The Expert's Preparation Fees Must Be Capped At The Fee For The Corresponding Deposition.
• Florida - When A Plaintiff Seeks Compensation From Its Uninsured Motorist Carrier, The Party Is Not Waiving Its Right To Seek Compensation From A Defendant.
• Florida - Ten Attempts At Service Within The Statute Of Limitations Constituted Good Cause For Exceeding The Deadline And Did Not Warrant Dismissal.
• New Jersey - A Jury Is Permitted To Reject An Uncontested Expert's Opinion Regarding The Plaintiff's "Permanent" Injuries In Reaching The Verbal Threshold For Awarding Noneconomic Damages.
• New Jersey - A Verdict Is Not Excessive Because It Is Greater Than What An Experienced Judge Might Expect In Similar Circumstances.
• New York - The Defendant's Good-Faith Efforts To Obtain Additional Verification About The Offending Vehicle Being Uninsured Constituted Good Cause For Not Addressing Plaintiff's Claim.
• New York - Defendant Fails To Rebut Plaintiff's Prima Facie Evidence Of Negligence Where Defendant Rear-Ended A Stopped Vehicle In Heavy Traffic, Even Though Defendant Was Only Driving 5 Miles Per Hour.
• Ohio - Where Appellant Argues That The Weight Of The Evidence Requires A New Trial, An Appellate Court Cannot Address Appellant's Arguments Without Resorting To Complete Relevant Portions Of The Transcript Of The Trial Proceedings.
• Pennsylvania - The Superior Court Upheld An Insurance Policy's Venue Clause Requiring A Consumer To File Suit In The County In Which He Or She Lives.

Casualty 

• Delaware Law Regarding Determination Of Expert Fees

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

• Delaware - Meeting Of The Minds, Not Merely A Client's Signature, Determines Whether Lawyers Can Recover Based On Hourly Rate On An Agreement For Legal Services.
• Florida - Florida Appellate Court Determines That F.S. 718.302 Not Applicable To Lease Entered Into By Association & Developer In December 1976.
• New Jersey - The Supreme Court Of New Jersey Affirmed The Appellate Division's Affirmation Of The Trial Court's Denial Of A Third Party Defendant Surveyor Seeking A Dismissal Of The Third-Party Complaint Alleging A Failure Of Third-Party Plaintiff To Comply With The New Jersey Affidavit Of Merit Statute, N.J.S.A. §§ 2a:53a-26 To 29, Whereby A Neighbor Sued The Respondent Property Owner For Trespass And The Owners Filed Against The Surveyor Without Serving An Affidavit Of Merit.
• Pennsylvania - Plaintiff Asserting Claim For Wrongful Use Of Civil Proceedings Against Attorney Pursuant To 42 Pa.C.S. 8351, et seq. (Dragonetti Act) Required To File Certificate Of Merit Pursuant To Pa.R.C.P. 1042.3.

Employment Law

• Federal - The Third Circuit Determines That The McDonnell Douglas Test Should Be Utilized In The Analysis Of An Age Discrimination Case Despite The Supreme Court's Holding In Gross v. FBL Financial Services, Inc.
• Federal - The Third Circuit Holds That An Employee Must Produce Evidence That Age Was The Determinative "But For" Factor In The Employment Decision Rather Than A Secondary Consideration.
• Federal - Court Holds That The Resigning Teacher's Execution Of A General Release Barred Her Subsequent Employment Discrimination Claims.
• Federal - Plaintiff's Motion To Exclude Introduction Of Her Email Exchanges Involving Sexual Content In A Sexual Harassment Matter Was Denied Because The Emails Were Probative On The Issue Of Whether Plaintiff Was Subjectively Offended By The Alleged Harasser's Comments.
• Federal - Court Conditionally Certified A Class Of Persons Employed As Assistant Managers Who Were Classified As "Exempt" Pursuant To The Fair Labor Standards Act.
• New Jersey -  A Two-Year Statute Of Limitations Applies To A Discrimination In Pay Claim Brought Under The New Jersey Law Against Discrimination Regardless Of The Enactment Of The Lilly Ledbetter Fair Pay Act.
• New Jersey - Under The New Jersey Law Against Discrimination, Extending Leave Beyond FMLA Period May Constitute A Reasonable Accommodation.
• New Jersey - Twelve-Part Test For Employment Must Be Used To Determine Whether Independent Contractor Is Considered To Be An Employee Of Putative Employer For Purposes Of Protection Under The New Jersey Law Against Discrimination.
• New Jersey - Under Both The ADA and NJLAD Standing Must Be Shown Before A Claimant Can Seek Injunctive Relief.
• Ohio - First Appellate District Disagrees With Eighth Appellate District Regarding Applicability Of Ohio Revised Code 2744.09(B) To Retaliation Claims Against Governmental Supervisors.
• Ohio -  Appropriate Disclaimers In Employment Documents, Acknowledged By Employee, Negate Any Inference Of An Employment Contract Inconsistent With Employment At Will.
• Ohio - An Employee Needing New And Unforeseeable FMLA Leave Must Notify The Employer As Soon As Practicable.
• Ohio - An Employee Fired In Retaliation For Filing A Workers' Compensation Claim Is Barred From Pursuing A Public Policy Wrongful Discharge Claim.

Fraud

• Insurance - Arbitration Awards
• Insurance - Health Insurance - Fraud
• Insurance - Limitation On Lawsuit
• Insurance - Medical Expense Benefits
• Insurance - PIP Benefits

Health Care Liability

• New Jersey - Discovery Rule Does Not Toll Statute Of Limitations When Plaintiff Is In Possession Of Medical Records Identifying A Party Prior To The Expiration Of The Statute Of Limitations.
• Pennsylvania - Department Of Public Welfare Is Entitled To Reimbursement From Tortfeasor For Medicaid Benefits Paid On Behalf Of Incapacitated Minor Even If Parent's Claim Is Barred By The Statute Of Limitations.

Insurance Coverage/Bad Faith

• Pennsylvania - The Insured Bears The Burden Of Proving That Her Signature On A UIM Rejection Form Was A Forgery.
• Pennsylvania - Dispute Over The Value Of A UIM Claim Between An Insured And An Insurer Are Not Valid Grounds For Bad Faith Claims.
• Pennsylvania - Policies Providing Individual Limits Of UIM Coverage For Vehicles That Are Owned And Held Within The Same Household Do Not Allow Insureds To Stack Coverage.

Municipal Liability/Civil Rights

• Federal - In First Amendment Retaliation Claims, After Plaintiff States A Prima Facia Case, Defendant May Adduce Evidence Of A Legitimate, Non-Discriminatory Reason For Termination.
• Federal - Third Circuit Emphasizes Importance Of Proper Prosecution Of Underlying Criminal Charges In A Civil Rights Suit, Holding That Fourth Amendment Claim Of An Alleged Illegal Search Can Be Overcome By Plaintiff's Unsuccessful Attempts At Suppression.
• Federal - In a Case With Serious Implications For Law Enforcement, The Eastern District Of Pennsylvania Court Has Held That The Need For A Foot Pursuit Policy May Be So Obvious As To Subject A Department Without One To Monell Liability.

Technology, Media & Intellectual Property

• In California Trade Secrets Must Be Identified With "Reasonable Particularity" In A Plaintiff's Trade Secret Disclosure Statement.

Trucking & Transportation

• New Jersey - An Out-Of-State Driver Whose Insurance Carrier Does Not Do Business In New Jersey Cannot Invoke The Verbal Threshold As A Defense In A New Jersey Lawsuit Over An Accident That Occurred In New Jersey.
• New York - The Plaintiff Must Establish A "Serious Injury" Under §§ 5102(d) And 5104(a) In Order To Recover For "Non-Economic Loss."
• Ohio - The 2007 Amendments To The Federal Railroad Safety Act Do Not Alter The Preemption Analysis Of State Law Claims.
• Pennsylvania - The Defendant Port Authority's Alleged Negligent Placement Of A Bus Wheelchair Ramp Did Not Fall Within The Vehicle Exception To Sovereign Immunity Because Neither The Ramp Nor The Bus Was Moving At The Time Of Plaintiff's Alleged Injury.

Workers' Compensation

• Delaware - Delaware Supreme Court Holds That General Contractor Is Not Liable To The Injured Employee Of Its Subcontractor Where The Subcontractor Failed To Obtain Workers' Compensation Insurance.
• Delaware - Delaware Supreme Court Rejects The Claimant's Appeal And Holds That Board Did Not Err In Limiting Award Of Counsel Fees Since It Was Not Required To Consider The Non-Monetary Benefits Gained For The Claimant. 
• New Jersey - Shielding The Employer From Liability: The Substantial Burden Of Proof Required To Overcome The Exclusive Remedy Provision Of The Workers' Compensation Act.
• New Jersey - The "Benefit To The Employer" Rule: Under What Circumstances Will An Injury Sustained During Nonworking Hours Be Found Compensable?
• Pennsylvania - The Supreme Court Reverses The Commonwealth Court And Holds That An Earning Power Assessment Performed In The Area Where The Claimant Resides, But Not In The Area Where The Claimant Was Working At The Time Of His Injury, Is Insufficient To Justify A Modification Of Benefits Under §306(b) Of The Act.
• Pennsylvania - There Is No Requirement Under The Act That The Specialty Of A Physician Who Performs An Impairment Rating Evaluation Be Directly Related To The Nature Of The Claimant's Work Injury.  The Act Requires That There Be A Determination That The Claimant Meets The Threshold Impairment Rating Of 50% or Greater In Order To Appeal An Adjustment Of Benefit Status Based On An IRE Of Less Than 50%.
• Pennsylvania - Two Separate And Distinct Work Injuries Do Not Equal Two Consecutive 500-Week Periods Of Partial Disability.
• Pennsylvania - An Employer Is Obligated To Pay For Modifications To A Claimant's Bathroom, As Well As Repairs Necessitated By The Substandard Construction Of Those Modifications.
• Pennsylvania - The Claimant Must Present Medical Evidence To Defeat A Modification Petition Where The Employer's Medical Expert Testifies That The Claimant May Work 40 Hours A Week And Up To 10 Hours In Any Single Day And When That Testimony Is Credited By The Workers' Compensation Judge.