Defense Digest

Volume 11, No. 3, September 2005

Index of Articles

• On the Pulse...The Ohio Opportunity
  By Samuel G. Casolari Jr., Esq.
  Since its founding days, the Marshall, Dennehey, Warner, Coleman & Goggin office is Akron, Ohio has experienced sure and steady growth.  Founded in January 2003,...
   
• On The Pulse...Hitting The Road With Marshall, Dennehey: Transportation Law Practice Group
  By James D. Hilly, Esq.
  The handling and trial of matters on behalf of commercial fleet vehicle owners and their insurers is uniquely fitted to the structure of Marshall, Dennehey...
   
• Notes From The Executive Committee
  By Philip B. Toran, Chairman, Executive Committee
  It is an honor to have this opportunity to address those who are most responsible for our firm's dramatic growth: our valued clients and the 850-plus strong employees...
   
• Superior Court Decides Expert Studies Do Not Meet Substantial Similarity Test
  By Keith D. Heinold, Esq.
  One of the most difficult tasks for a product defendant is to deal with the issue of other accidents allegedly similar to the accident involved...
   
• Two Scoops: Superior Court Allows UM/UIM Claimants To Double Dip Workers' Compensation Benefits
  By Christopher M. Reeser, Esq.
  Experience attorneys and claims professionals who handle motor vehicle cases on a regular basis know that one of the things that is different about a motor vehicle case as opposed to a traditional personal injury case, such as a slip and fall, is that the plaintiff...
   
• Insurer's Beware! Watch Out For Those Assignments When Settling Claims!
  By Samuel G. Casolari Jr., Esq.
  In Roselawn Chiropractic Center, Inc. v. Allstate Insurance Co., 160 Ohio App. 3d 297, 2005-Ohio-1327, Hamilton County Court of Appeals in Cincinnati, Ohio affirmed judgment in favor of Roselawn Chiropractic in its lawsuit against Allstate...
   
• Ohio's Continued Tort Reform Adventure: Caps, Seatbelts, Collateral Source, And More
  By Samuel G. Casolari Jr., Esq., J. Christopher Reece, Esq., and Martin H. Sitler, Esq.
  Over the past 30 years, Ohio has lived the adventure of tort reform.  The Legislature enacted laws in an endeavor to address public policy concerns about inflated insurance costs, personal injury lawsuits and excessive verdicts...
   
• Agreements To Arbitrate Upheld By Pennsylvania State and Eastern District Court Despite Alleged Confidential Relationship Between Plaintiff Investors and Defendant Stockbrokers
  By Samuel E. Cohen, Esq.
  For the past four years, the Pennsylvania Superior Court's decision in Paone v. Dean Witter Reynolds, Inc., 789 A.2d 221, 226 (Pa.Super. December 7, 2001), has been used by plaintiffs' attorneys as a means of avoiding arbitration agreements in customer-initiated securities litigation...
   
• Will The Real Employer Please Stand Up? - The Appellate Division's Most Recent Look At Special Employment Status Under The New Jersey Workers' Compensation Law
  By Robert J. Fitzgerald, Esq.
  In several recent decisions being considered for publication, the Appellate Division has re-visited the issue of "special employee/employer" under the New Jersey Workers' Compensation Law.  Like most other states, New Jersey provides for...
   
• Pushing The Tort Claims Act Threshold
  Paul C. Johnson, Esq.
  The New Jersey Tort Claims Act, N.J.S.A. 59:9-1, et. seq., protects public entities in several different ways.  The Tort Claims Act (TCA or The Act) established a stringent pre-suit notice requirement.  It creates a heightened standard of care...
   
• What the New Jersey Legislature Really Meant When It Passed AICRA in 1998: No Serious Life Impact Standard Imposed On Plaintiffs
  By Brian O'Rourke, Esq.
  The New Jersey Supreme Court decided what will become the seminal case on automobile negligence on June 14, 2005.  In DiProspero v. Penn, et al., the Court ruled...
   
• Clarification: A Party To A Settlement Agreement May Seek Damages, Not Just Rescission Of The Agreement, When Fraudulently Induced Into The Agreement
  By Donald L. Carmelite, Esq.
  A three-judge Pennsylvania Superior Court panel ruled in Eigen v. Textron Lycoming Reciprocating Engine Div., 205 Pa.Super. 141 (Pa.Super. 2005), that the victim of fraud in the inducement has two options:...
   
• Raise It Or Loose It!
  By Deborah A. Cooper, Esq.
  Submission of a request for a jury charge without an affirmative ruling by the court on the record is not enough to preserve an issue for appeal.  If the trial judge simply fails to give the requested charge...
   
• Pennsylvania Adopts Identical Juror Rule
  By Jill C. Taylor, Esq.
  Traditionally, civil jury verdicts in Pennsylvania have required unanimity among all the jurors.  In 1971, however, the Pennsylvania Constitution was amended, permitting the Legislature to replace the previous requirement...
   
• Land Use Earthquake: Supreme Court Modifies "Takings" Jurisprudence
  By Alan E. Johnson, Esq.
  In the last few weeks of its 2004-05 term, the United States Supreme Court issued three significant opinions construing the takings clause (also called the just compensation clause) of the Fifth Amendment...
   
• The Limiting of Limited Torts: LS v. Eschbach
  By Eric R. Brown, Esq.
  In the case of LS v. Eschbach, 874 A.2d 1150 (Pa. May 25, 2005), LS, a minor, left her school bus and, while attempting to cross the street, was struck by a motor vehicle...
   
• Free Delivery: The Enforceability of "Cars For Hire" Exclusions After Prudential v. Sartno
  By Patrick J. Mattucci, Esq.
  Your friendly neighborhood pizza deliver driver should be more careful the next time he drops off your tomato pie.  Following the Pennsylvania Superior Court's decision...
   
• Let's Spare Some Trees - Standard Discovery Requests In Philadelphia Arbitration Cases
  By Laurianne Falcone, Esq.
  Effective June 6, 2005, the Court of Common Pleas of Philadelphia County issued an Order requiring attorneys to us "standard" discovery requests in both premises liability and motor vehicle arbitration cases...
   
• Punitive Damages Obtainable In Negligent Supervision Claim Based On Ordinary Negligence
  By Fabiana Pierre-Louis
  The Supreme Court of Pennsylvania recently held that a negligent supervision claim sounding in ordinary negligence may support an award...
   
• A Horse Is Still A Horse In Pennsylvania: Did The Superior Court Close The Barn Door?
  By David Lingenfelter, Esq.
  In her 2003 lawsuit, Sharon Kinley, (Kinley v. Bierly, et al., 2005 PA Super 168, 2005 Pa. Super. LEXIS 980 (Pa. Super. Ct. 2005), challenged the principle embodied...
   
• A New Twist On An Old Theory: Medical Monitoring Within The Context Of Medical Negligence Claims
  By Michele V. Primis, Esq.
  Since the early 80s, plaintiffs have been bringing medical monitoring claims in mass tort negligence claims.  Recently, plaintiff have begun to use this theory against healthcare providers in cases...
   
• The New Jersey Supreme Court Finds No Cause Of Action For Creditor Fraud Action Against Attorneys
  By John L. Slimm, Esq.
  On June 27, 2005, the Supreme Court of New Jersey held that there is no cause of action for creditor fraud against attorneys in this state...
   
• Not Fair! Pennsylvania's "Fair Share Act" Found Unconstitutional
  By Walter Kawalec III, Esq.
  On June 19, 2002, the Pennsylvania Assembly passed, and then-Governor Mark S. Schweiker signed, Act 57.  The Act had a somewhat tortured legislative history but...
   
• CMS Updates Its Guidance On Medicare Set-Asides
  By James E. Pocius, Esq.
  On July 11, 2005, Centers for Medicare/Medicaid Services (CMS) issues a new Guidance...