On The Pulse Our Litigation Achievements, DD 03/07

Defense Digest

On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Accomplishments...

Casualty

Walt Kawalec and Doug Alba (Cherry Hill, NJ) had a recently published victory in New Jersey's Appellate Division. In the case, the trial judge in Burlington County dismissed the insurer's multi-million dollar fraud complaint against a medical provider, arguing that the case was barred by the entire controversy doctrine. The medical provider had previously filed an action against the insurer in Camden County requesting PIP benefits. That Camden action was dismissed via a motion under Rule 4:6-2 by the insurer prior to its filing of an answer. The trial judge in the Burlington action believed that the insurer had the option of raising the fraud complaint as a counter claim in Camden and was barred under the entire controversy doctrine from doing so by its choice to file the motion to dismiss rather than a counter claim. The Appellate Division reversed. It found that the nature of the claims raised in the Camden action and those in the Burlington action, as well as the text of the Rule 4:6-2, were not such that the entire controversy doctrine applied to bar the Burlington action. It reversed the entry of judgment in the medical provider's favor and reinstated the complaint.

Kevin Regan and Jay Eveland (Roseland, NJ) obtained summary judgment on behalf of Retail Brand Alliance Inc. (d/b/a Brooks Brothers). The plaintiff was an employee of RGIS Inventory, an independent contractor hired by Brooks Brothers to perform an inventory at its store in the Riverside Square Mall. The plaintiff alleged injuries as a result of a fall off of a stool he borrowed from Brooks Brothers personnel. The plaintiff claimed that the stool was defective. Kevin and Jay successfully argued that it was foreseeable that the plaintiff would need to use ladders, stools or other such equipment in performing inventories and that Brooks Brothers did not owe a duty to protect the plaintiff from the very injuries which are attendant to the job he was hired to perform.

Rich Goldstein and Kara Pullman (Cherry Hill, NJ) obtained summary judgment for a township in Gloucester County, New Jersey, its mayor, and members of the Township Committee. The plaintiffs were caterers who claimed the defendants acted wrongfully in the course of a bidding process for an outdoor summer concert series sponsored by the Township after a different caterer was chosen to provide catering services at the series. The plaintiffs asserted a fraud claim against the individual defendants and also sought declaratory judgment on the basis that the bidding process was flawed and, as a result, the contract was wrongly awarded. We argued that the plaintiffs had failed to meet the requirements for a common law fraud claim against the individual defendants and were not entitled to a declaratory judgment as there was no actual controversy in existence. The court accepted our arguments and granted the motion for summary judgment and denied the plaintiffs' cross-motion.

Patrick Geraghty (Roseland, NJ) won a motion for summary judgment in the U.S. District Court for the Southern District of New York in an Admiralty cargo-loss case brought under the Carriage of Goods by Sea Act. In the case, the plaintiff-consignee claimed an ocean marine terminal did not properly secure an ocean freight container to a chassis, later causing the container to separate from the chassis and roll onto Interstate-95 near Bridgeport, Connecticut. Patrick successfully argued that the plaintiff offered insufficient proofs that the cargo was actually shipped through the defendant's ocean marine terminal.

Pamela Bower (Jacksonville, FL) obtained a per curiam opinion from Florida's First District Court of Appeal after participating in oral argument before a three-judge panel. At issue was the propriety of a directed verdict in favor of the defense entered by a Circuit Court judge in a wrongful death case. (Michael Obringer tried the wrongful death case.) The plaintiff/appellant argued on appeal that the trial judge had committed reversible error. On de novo review, the court disagreed, finding that the plaintiff failed to adduce any evidence that any act or omission on the part of the defendant driver was the proximate cause of the accident in which the plaintiff was killed.

Ben Nicolosi (Scranton, PA) obtained a defense verdict in Luzerne County in a case where the plaintiff alleged negligent maintenance of a leased utility bucket truck. Ben's client leased bucket trucks and regularly inspected them to ensure, among other things, that the access steps to the bucket were treated with anti-skid paint. The plaintiff alleged that he slipped on a step where the paint was worn. As a result of his accident, he underwent a cervical fusion and a lumbar fusion.

Christopher Reece (Akron, OH) obtained a defense verdict in a jury trial in Summit County, Ohio. While making a left turn, the defendant-driver struck the plaintiff-pedestrian in a crosswalk. Both parties sued Chris' insured, the private company that supplies underground steam heat to downtown Akron buildings. The parties alleged that steam discharging from a steam leak in a manhole in the intersection obscured their vision, causing the accident. The jury returned a verdict assessing 25 percent negligence to the pedestrian, 75 percent negligence to the driver, and no liability of Chris' client. The jury found that the steam company did not have knowledge that this particular condition posed a risk of harm.

Carolyn Bogart and Kevin McGoldrick (Cherry Hill, NJ) obtained summary judgment in a slip and fall accident in Mercer County. The plaintiff alleged that the defendants, Global Spectrum, LP, a facility manager for the Sovereign Bank Arena, failed to keep an adjacent parking lot clear of ice and snow, resulting in the plaintiff falling on black ice and sustaining a broken hip. The issue presented to the court was whether or not the defendant had maintained and/or actively controlled the parking lot where the plaintiff fell, even though they only used the location for evening events. The plaintiff's fall occurred at 8 a.m. in a remote parking lot that had been subleased to a state entity, her employer, for day use. Global's motion was opposed by both the plaintiff and the County of Mercer, who argued against the dismissal, stating Global had undertaken certain control of the lot and thereby had a duty for all times of the day. The court ruled that neither the plaintiff nor the County of Mercer were able to establish any negligence of the defendants as Global had only been contracted to manage the Arena and its surrounding parking lots when events were actually occurring.

Justin Oravetz (Philadelphia, PA) received a defense verdict following a hearing in which the plaintiff accused a property management company's representatives of theft of several thousand dollars of personal items from his apartment. The plaintiff contended that the items were stolen during the time between his moving from the apartment and actually relinquishing control of the premises back to the management company.

Additionally, Justin was also successful in having a case against our self-insured client dismissed with prejudice. He argued that continued prosecution of the case would not only constitute an abuse of process, but would severely prejudice the defendant given his limited resources. After consideration of these arguments and the plaintiff's failure to move the case forward, the case was dismissed.

Michele Frisbie (Doylestown, PA) secured a defense verdict before a Bucks County Arbitration Panel. The plaintiff claimed that our clients were liable to him when he fell after climbing into a partially notched tree on our clients' property. Our clients were cutting trees on their property when a chain saw got pinched in the trunk. Our client tied a tow line from his truck to the tree, planning to pull the tree down, thus, releasing the chain saw. Our client approached the plaintiff, who was landscaping a neighbor's yard, to "catch" the chain saw. Instead, the plaintiff decided to ascend the tree and cut off branches until the tree fell. The plaintiff denied seeing the ten inch notch, the tow line, the truck parked on the grass, or the red 24-inch chainsaw pinched in the tree.

Jim Johnson (Philadelphia, PA) obtained three consecutive defense verdicts in one week involving claims for breach of warranty, alleged statutory violations, and attorneys' fees brought by plaintiffs in the Philadelphia County Court of Common Pleas against a major automobile manufacturer. Also, he recently settled a contentious and lengthy bankruptcy adversary proceeding with no payment being made by his client.

Bob Cameron (Pittsburgh, PA) received a defense verdict in a Westmoreland County blasting case. The defendants had detonated over a half-ton of explosives 400 feet away from the plaintiffs' inground swimming pool. Despite the plaintiffs' uncontroverted testimony that the pool had not been damaged before the blast, Bob convinced the jury that the defendants' blast did not cause damage to the plaintiffs' swimming pool. The jury deliberated 15 minutes before returning a defense verdict.

Additionally, in a Special Investigation Unit case involving the alleged theft of a WWII era motorcycle, the insured is serving time in jail. During the course of the investigation, Bob and the SIU investigator found evidence that the theft of the motorcycle had been staged by the insured. They also found a 500 Series Mercedes that had been reported stolen five times, but which the insured failed to report that he had recovered after the fifth theft. Through a collaborative effort with law enforcement, the insured was convicted of insurance fraud. Notably, the insured was ordered to pay restitution to the carrier for investigative costs, including attorneys fees.

Matt Keris (Scranton, PA) received a defense verdict in a Luzerne County motor vehicle liability matter where the only issue for jury consideration was the plaintiff's pain and suffering. In addition, a favorable pre-trial ruling was rendered by the judge pertaining to the jury submission of income received by the plaintiff's treating physician (a local physiatrist with a reputation for being a patient-advocate) for litigation services. In permitting the jury to consider the plaintiff's treating/expert's litigation income, which was in excess of $1.5 million over the previous five years and derived from the local plaintiffs' bar, the judge held that there should be no distinction between the plaintiff's and the defense's medical witnesses for purposes of showing bias in this regard. With this decision, the trial judge reversed his previously held position that expert discovery rules are not applicable to the plaintiff's treating physician experts.

After a two-day trial in Portage County, Ohio, Jim Hanratty (Akron, OH) obtained a defense verdict in an automobile accident case. The plaintiff claimed that the defendant went left of center, causing a high-velocity impact that resulted in chronic neck and back pain, knee surgery, and future shoulder surgery. The defendant claimed that he was reacting to a sudden emergency caused when an unidentified vehicle passed him in a no passing zone and "cut him off" by hitting the brakes immediately after passing. This caused the rear of his vehicle to enter the oncoming traffic lane and the collision occurred. Each vehicle was traveling approximately 50 mph. The plaintiffs were husband and wife. The wife was driving and the husband was a passenger. We defended on liability and damages.

Mark Riley (King of Prussia, PA) obtained a defense jury verdict after week-long products liability jury trial in the Berks County Court of Common Pleas before Judge Stallone on behalf of the manufacturer of a boat trailer. The plaintiffs contended that on the same day, after taking delivery of a new boat and trailer, they were proceeding to the New Jersey shore with their new boat when the boat trailer separated from the ball hitch on the plaintiffs' vehicle and remained attached only by safety chains. The plaintiffs alleged that they pulled over to the side of the road and sustained injury while trying to lift the front of the boat trailer back onto the ball hitch.

Alicia Schweyer (Scranton, PA) was granted a dismissal of the insured by a Motion for Judgment on the Pleadings. The motion was argued before Judge Conway in Wayne County. The plaintiff had alleged that the defendant/owner was negligent for turning her car over to a repair shop. The car subsequently rolled (without an operator) from the parking lot of the repair shop and into the plaintiff's vehicle. The plaintiff's theory was that the defendant could have foreseen these events since she knew her car was defective and since she was familiar with the repair shop and the fact that it was located on a hill.

Stephen Barcavage (Harrisburg, PA) obtained a defense verdict in a two-day jury trial in Adams County. The case involved a motor vehicle accident where the plaintiff, who was operating a Harley Davidson motorcycle, and the defendant, who was operating a conversion van, collided near the double yellow lines of the roadway. As a result of the accident, the plaintiff lost his left leg, suffering damages well beyond the policy limits. However, liability was vigorously disputed at trial. At the conclusion of the case, the jury deliberated less than 20 minutes before returning a verdict in favor of the defendant, finding that the plaintiff had not met his burden of proving that the defendant was negligent.

Timothy Rau (Philadelphia, PA) obtained defense verdicts in two asbestos cases tried in the Philadelphia Court of Commons Pleas. Each plaintiff was alleging injury and impairment from exposure to asbestos-containing products. In the one case, the jury found that the plaintiff had no asbestos disease, and in the other, the jury found that the plaintiff had an asbestos disease but had no impairment.

Bruce Seidman (Roseland, NJ) obtained summary judgment for an insurance producer in an E&O claim. The plaintiff, an unlicensed driver, was involved in an accident while driving her boyfriend's car. In addition to suing the driver of the other vehicle, when she was denied PIP benefits, the plaintiff sued the insurer of her boyfriend's car and the insurance producer who placed the liability policy. The principal issue on the producer's motion was whether or not the producer could be held liable for the lack of PIP benefits. The court agreed with the producer's arguments that, (1) as an unlicensed driver, the plaintiff could not have had a reasonable belief that she had a right to operate the car and (2) under the policy definitions, as an unlicensed driver, she did not qualify for PIP benefits.

Employment Law

Stephanie Rawitt (Philadelphia, PA) obtained summary judgment in an age discrimination action pending before Judge Stengel in the United States District Court for the Eastern District of Pennsylvania on behalf of Easton Hospital. The plaintiff, a registered nurse of 29 years, was employed by Easton Hospital from 1980 until October 2003, when she voluntarily changed her employment status from full-time nurse to that of a per diem nurse. Before requesting this status change, the plaintiff was subject to disciplinary action stemming from an incident in which she refused to orient temporary nurses at the hospital. The plaintiff claimed that she was unfairly disciplined by her supervisor and also that she was subjected to a hostile work environment by the same supervisor because of her age. The plaintiff alleged that she was forced to change her employment status as a result of alleged workplace harassment. In granting the defendant's motion for summary judgment, the court found that the plaintiff failed to establish a prima facie case of age discrimination. It based this decision upon the fact that the plaintiff failed to show that she suffered an adverse employment action. The court concluded that the plaintiff voluntarily resigned without attempting to resolve the alleged work place conflicts by seeking a transfer to another department or position, discussing her concerns with higher levels of hospital administration, or informing supervisors that she may feel compelled to leave if the manner in which she was being supervised did not change. The court also noted that, even if the plaintiff had been able to establish that she suffered an adverse employment action, summary judgment would still have been granted because she failed to show that she was replaced by a sufficiently younger person as to raise an inference of discriminatory animus.

Health Care Liability

Thom Lent (Erie, PA) obtained a defense verdict following a four-day medical malpractice trial in Erie County. Our client radiologist was alleged to have been negligent in failing to timely report the result of a CT scan to the treating gynecologist, the co-defendant, who had ordered the scan. Ordered as routine, the scan clearly demonstrated a very serious abdominal process, which turned out to be a softball-sized diverticular abscess. Four days after the CT scan report was prepared, it was picked up by the gynecologist, who then scheduled an elective hysterectomy. The next day the abscess drained through the bladder via a fistula that had developed and resulted in emergency hospitalization, transfer and surgery necessitating substantial removal of colon, and the placement of a permanent colostomy. The plaintiff's recoverable special damages were approximately $315,000 and pre-trial settlement demand was $500,000. The defense centered on causation, with our expert radiologist opining that there was no progression of the disease process from the time of the initial CT scan through a similar scan performed preoperatively one week later. Additionally, the plaintiff's own causation expert admitted on cross-examination that whether earlier surgical intervention could have resulted in a better outcome was "speculation and conjecture." Further, the general surgeon who performed the colostomy admitted under cross-examination that the CT scans in question did not differ markedly with respect to the progression of the diverticulitis that had caused the abscess. Following a two-hour deliberation, the jury found the gynecologist not negligent, and while our client was found negligent, the jury concluded there was no causation.

Bruce Seidman (Roseland, NJ) obtained summary judgment in a dental malpractice case. Except for the plaintiff's expert, who reviewed the plaintiff's initial dental x-rays and concluded the tip was fractured and should have been immediately extracted, four treating dentists and two defense dental experts opined the x-rays did not reveal a root tip fracture. Further, one treating dentist, in the course of performing a surgical procedure, directly visualized the root tip and noted that the tip was not fractured. In granting our client's motion for summary judgment, the court accepted the argument that because the four treating and two defense expert dentists all rejected the presence of a fracture on the x-rays and that one treating dentist directly visualized the root tip and noted the absence of a fracture, the evidence was so one-sided that no fair-minded jury could reach a contrary conclusion that the root tip was fractured.

David Chmiel (Pittsburgh, PA) obtained a defense verdict following a seven-day jury trial in Allegheny County. The lawsuit involved claims of dental malpractice on the part of Dave's client, a prosthodontist, and a codefendant, also a prosthodontist. The plaintiff alleged that the codefendant improperly provided her with a removable prosthesis (dentures) when she believed she would be getting something which was "non-removable." The plaintiff also alleged that the dentures initially made were uncomfortable and failed to fit properly. Dave's client assumed the care of the plaintiff after the codefendant left private practice for a teaching position. The plaintiff contended that the new prosthesis fabricated by Dave's client was too large and opened the plaintiff's jaw to the point that she suffered extreme pain in her temporomandibular joint. Dave argued that his client had to open the jaw slightly in order to provide sufficient space for a prosthesis, which would not only look good and fit comfortably, but also provide lasting benefit. Special damages claimed had exceeded $100,000, and the plaintiff's demand was $800,000.

Steve Ryan and Ellen Casey (King of Prussia, PA) achieved a defense verdict in the Philadelphia case of the death of a 28-year-old morbidly obese man with multiple medical problems who had been in the hospital for congestive heart failure and who developed signs and symptoms of deep venous thrombosis (DVT) and pulmonary embolism (PE). Their client, a pulmonologist, was consulted and switched heparin from I.V. therapeutic dosing to subcutaneous prophylactic dosing when test results were indeterminate. Ordinarily, the standard would be to continue therapeutic levels until testing ruled out DVT and PE, but the patient was too large for CT and angiography tables and his only kidney was already in failure and would not withstand the dye load for those studies. Co-defendants had settled for $1 million.

Craig Stone and paralegal Pam Boger (Harrisburg, PA) obtained a defense verdict for an orthopedic surgeon following a seven-day trial in Franklin County, Chambersburg, Pennsylvania. The plaintiff contended that our client performed a lumbosacral fusion based upon his misdiagnosis of the cause of the plaintiff's preoperative low back pain. The attempted fusion went on to a nonunion. The plaintiff also contended that our client "fabricated" records in the post operative period to obfuscate his negligence. On postoperative day two, the plaintiff fell onto his back when he attempted to rise from a commode as a result of a grab bar in his bathroom coming out of the wall. This gave rise to separate premises and corporate liability claims against the hospital. It was contended that the orthopedist would also be liable for the hospital's negligence. Our defense expert conceded that he did not agree with a portion of the preoperative diagnosis, however. He testified that offering the plaintiff the operation was justified based on the component of our client's diagnosis with which he agreed. The plaintiff sought damages for past and future medical expenses and noneconomic loss. The jury returned a verdict of no negligence on the part of our client.

John Aponick (Scranton, PA) obtained a no negligence defense verdict in a plastic surgery malpractice case in Wilkes-Barre following four days of trial and approximately fifteen minutes of jury deliberation. The plaintiff, a 23-year-old female, claimed damages for excessive scarring and pain and protracted recovery time and disability resulting from the surgical removal from her ankle of a large tattoo. The surgeon excised the entire tattoo and placed a full thickness skin graft taken from her abdomen. He also performed a free "tummy tuck" at the donor site. The plaintiff's expert claimed that the physician should have used a laser removal technique in multiple stages, even though the plaintiff herself did not want laser and wanted the tattoo removed in one surgical procedure. The plaintiff's expert also claimed that a full thickness graft, rather than split thickness, was inappropriate because of supposed inadequate blood supply at the ankle, which "doomed the graft to failure." A claim for lack of informed consent was withdrawn at trial.

Frank Leanza (Roseland, NJ) obtained a defense verdict in a podiatric malpractice case, following a two-week trial in Somerset County, New Jersey. The plaintiff sought damages for loss of sensation and function in her foot following surgery to remove a ganglion cyst. The plaintiff also sought damages for a subsequent fall allegedly caused by a weakened foot and injury to her shoulder and neck requiring cervical fusion surgery. The plaintiff claimed total disability as a result of her injuries. The plaintiff's experts alleged that the insured deviated from the standards of care in his operative and post operative treatment of the plaintiff and that he failed to obtain the plaintiff's informed consent prior to surgery. The jury returned a defense verdict after deliberating for one hour.

Kristy Burns and Eileen Warner Strulson (Cherry Hill, NJ) recently won two motions for dismissal of plaintiffs' complaints for failure to produce an Affidavit of Merit. In the first case, the plaintiff sued a nursing home claiming a fall occurred that caused the death of the brother of the plaintiff. No affidavit of merit was filed by the plaintiff within the 120 days required under the statute. In the second case, a pro se plaintiff sued a mental health hospital for violation of her civil rights and malpractice when the hospital transferred the patient in four-point restraints pursuant to physician's orders. Although the plaintiff produced an expert's report, the report failed to set forth that there existed a reasonable probability that the care rendered fell outside of the acceptable standards as is required under the statute.

Professional Liability

Trish Monahan (Pittsburgh, PA) received a 75-page opinion from Judge Doyle in Blair County granting her motion for summary judgment in a bad faith case and denying the plaintiffs' motion for partial summary judgment on liability. This was a hotly-contested bad faith suit arising out of the handling of an underinsured motorist claim. The claim settled for slightly less than the policy limits prior to the arbitration. The plaintiffs were complaining about the delay in the settlement, conduct that allegedly violated the carrier's claim handling guidelines, alleged lack of candor to the arbitration panel, biased IME's, and low-ball offers. The plaintiffs further alleged that the defendant was liable for bad faith because it included language waiving a bad faith claim in its proposed UIM release. Pat argued that the defendant had a reasonable basis in the manner in which it investigated the underinsured motorist claim and that the offers were reasonably based upon the medical evidence that the plaintiffs submitted. Also, the release language was changed when plaintiffs' counsel complained about it, and the settlement was not impeded. The plaintiffs' case was dismissed with prejudice. Chuck Craven and Bruce Morrison (Philadelphia, PA) assisted with the briefs.

Walt Kawalec (Cherry Hill, NJ) and John Gonzales (King of Prussia, PA) won a recent victory in the Third Circuit Court of Appeals. In the case, the plaintiff was a former police officer who sued his former employer, alleging a disparate-treatment ethnic discrimination claim, an unlawful retaliation claim stemming from complaints he made to the Human Rights Commission, and a claim that his First Amendment speech rights were violated when he was disciplined for speaking to a reporter about actions by a police official. On the disparate-treatment claim, the plaintiff did not establish an "adverse employment action," his claims were unsupported by the evidence of record, and he failed to show that those outside the protected class were given favorable treatment. His retaliation claim was dismissed because the reprimands, which he claimed constituted retaliation, occurred more than two years after the complaints to the Human Rights Commission and were, therefore, too remote in time to be considered evidence of retaliation. Finally, the First Amendment claim was rejected because his speech was found not to be a protected activity because the interest of the government in efficiency and maintaining morale outweighed the plaintiff’s interest in the speech.

Chet Darlington and Bill Conkin (Philadelphia, PA) obtained summary judgment in a bad faith/breach of contract case filed by individual condominium owners against the insurance company which had issued a fire policy to the Condominium Association where the individuals lived. The issue in the motion appears to be a case of first impression in Pennsylvania and concerns the question of whether individual unit owners are "intended third party beneficiaries" of the Association's policy of insurance. The Condominium, which had originally been the Hebrew School in Philadelphia in the early 20th century and had been registered as a historical structure, was seriously damaged when one of the residents fell asleep while smoking and set the place on fire. Fortunately, no one received any personal injury, but the amount of damage to the structure was very significant. A claim for insurance benefits was presented by the Condominium Association, the named insured, directly to its carrier, and that claim was resolved for the most part via the appraisal process per the policy. Prior to the appraisal award, the Association and some seventeen individual unit owners filed a bad faith/breach of contract suit alleging that the carrier had improperly handled the claim. These plaintiffs sought both insurance proceeds they claimed were due under the policy as well as punitive damages and attorneys' fees. Chet and Bill presented a motion for summary judgment, contending that the only proper plaintiff to present such a claim was the named insured and not the individual unit owners because they were not named insureds, nor were they "intended third party beneficiaries" who could enforce the terms of the policy. Judge Howland Abramson of the Philadelphia Commerce Court agreed with that position and dismissed the individuals' breach of contract claims.

Jack Slimm and Art Wheeler (Cherry Hill, NJ) recently obtained dismissal of a legal malpractice case in both the U.S. District Court for the District of New Jersey and the Superior Court of New Jersey, Appellate Division. Our firm represented a defendant law firm that represented an insurance company in a claim for fraud in an underlying matter. The plaintiffs in the case handled by Jack and Art contended that our clients made several misrepresentations to the court in connection with the representation of the insurance company. Initially, we obtained dismissal in the Superior Court of New Jersey where the plaintiff had attempted to bring claims out of the underlying matter, which originally settled in the U.S. District Court for the District of New Jersey. The plaintiffs then proceeded to file a Federal Court action, seeking to reopen the settlement in the underlying matter. The Federal District Court found that the plaintiffs did not meet their burden of proof of showing fraud on the court pursuant to Rule 60(b), which would have allowed the plaintiffs to file their Federal Court claims as an independent action to open a settlement. Subsequently, the Appellate Division, referencing the Federal Court's decision, upheld the Superior Court's dismissal of the State Court action.

Steven Polansky and Marc Jones (Cherry Hill, NJ) were successful in obtaining summary judgment for United States Liability Insurance Group in a suit in which the insured, a real estate agency, sought coverage under its errors and omissions policy. The underlying complaint alleged the failure of the realtor to disclose the known existence of an underground storage tank which was leaking on residential property. The real estate errors and omissions policy contained an exclusion for claims arising out of contaminants or pollution. The court agreed that the exclusion was clear, unambiguous and enforceable.

In addition, Marc Jones (Cherry Hill, NJ) obtained a stipulation of dismissal in a coverage action in Gloucester County, New Jersey. The plaintiff was a high school student who was struck in the face by a softball during softball practice for the girls softball team. The girl sued the school district and Utica Mutual Insurance Company for reimbursement of her dental expenses. The Utica Policy specifically excluded coverage for student medical expenses that are incurred while the student is participating in extra-curricular, school-sponsored sporting events. In a request for admissions, the plaintiff admitted that she was participating in a school-sponsored sporting event. A motion for summary judgment was filed, but the plaintiff, faced with clear exclusionary language in the policy, instead of opposing the motion, flew up the white flag and agreed to dismiss Utica with prejudice from the case.

Jack Slimm (Cherry Hill, NJ) obtained a pre-trial dismissal of a complex legal malpractice action arising out of a bankruptcy action in which one of the principals of the corporation claimed that he lost his equitable interest in the property as a result of the attorney's malpractice during the course of the bankruptcy action. Jack was able to demonstrate that the plaintiff's poor financial condition precluded him from obtaining any interest in the property or obtaining a loan to finance acquisition to the property. Once those proofs were demonstrated, the principals of the corporation were forced to resolve their differences and enter into a settlement agreement, which resulted in a division of the property among the principals and a dismissal of the action against the attorney with no payment being made on the law firm's behalf.

Hillary Fraenkel (Roseland, NJ) obtained a dismissal in lieu of an Answer in a recently submitted AIG matter. The plaintiff filed a Verified Complaint in Lieu of Prerogative Writ in connection with a zoning hearing against The City of Union City's Zoning Boards. The plaintiff alleged damages flowing from the City's approval of the co-defendant's zoning application. As the Verified Complaint was filed in excess of 400 days after the running of the 45-day statute of limitations for the filing of an action in Lieu of Prerogative Writ, it was appropriate to move for a dismissal in lieu of filing an Answer. The Judge agreed with the analysis that the statute of limitations had run and, therefore, no other issues were addressed.

David Chmiel and Stuart Sostmann (Pittsburgh, PA) obtained judgment on the pleadings in a case involving a home inspection. The plaintiffs filed a Complaint alleging that the home inspector failed to discover evidence of water infiltration, pest infestation and host of other problems. Dave and Stuart argued that the plaintiffs' claims were all barred by the one-year statute of limitations as set forth in the Pennsylvania Home Inspection Law regardless of whether the plaintiffs' claims sounded in negligence or breach of contract. The judge agreed and dismissed the case against the home inspector.

Richard Goldstein and Matthew Behr (Cherry Hill, NJ) obtained summary judgment on behalf of Pennsauken Board of Education and the principal of the high school. The plaintiff, a teacher at the high school, received a threatening voice mail message from an unknown student. The plaintiff informed his supervisor of the threat, and the threat was turned over to law enforcement officials. The matter was investigated, and eventually a student was charged with making the threats. The plaintiff alleged that the Board of Education failed to take disciplinary action against the student under a state-created danger theory. The plaintiff also claimed that his first amendment free speech right was suppressed. The plaintiff further claimed that he was discriminated against and retaliated against in violation of the New Jersey Law Against Discrimination and Conscientious Employee Protection Act because he did not receive a coaching position, among other alleged retaliatory actions. District Court Judge Bumb agreed with all of the positions asserted by the defendants and dismissed the case in its entirety, finding that there was not a state-created danger, the plaintiff's free speech claim did not involve a public concern but was one of a private matter, and found as a matter of law that there was no causal connection between bringing forth the threats made by the student and any of the alleged retaliatory actions.

Joe Santarone (King of Prussia, PA) obtained a defense jury verdict after a week-long trial in Federal Court in an Age Discrimination case where he represented Montgomery County and several high ranking officials. The plaintiff was a former County detective who was fired while in the narcotics unit and was replaced within three days with a significantly younger individual. The plaintiff's demand was $850,000. Prior to the start of the trial, plaintiff's counsel claimed their attorney fees were $250,000.

Doug Herman (Philadelphia, PA) obtained dismissal of a claim asserted under the Pennsylvania Commercial Broker Lien Law on behalf of an owner/seller of commercial real estate. Doug's client entered into an Agreement for Sale of commercial real estate with the broker's client. That Agreement was subject to a right of first refusal by a third party, who elected to purchase the property. After Doug's client executed an Agreement for Sale with the third party purchaser, the broker (for the original purchaser) asserted a claim under the Lien Law, contending that it had produced a willing and able buyer and, as such, was entitled to a commission. Doug argued successfully that the broker's right to a commission -- and, therefore, a lien on property for failure to pay the commission -- only arose under the Lien Law and the original Agreement for Sale if the sale to the first buyer was consummated.

Steven Polansky and Kara Pullman (Cherry Hill, NJ) obtained affirmance of the dismissal of bad faith and civil RICO claims asserted against USAA and other defendants in the Third Circuit. The plaintiff had alleged a conspiracy among her mortgage company, a third party lending company, USAA and several federal district and appellate judges in California. It was asserted that the defendants conspired to deprive the plaintiff of her civil rights, sought to cause bodily harm to the plaintiff and her family, and committed acts of harassment against the plaintiffs as a protected class. The appellate court upheld the dismissal on various grounds, including the failure of the plaintiff to allege sufficient facts which would establish a RICO violation. The Third Circuit vacated an injunction against further filings issued by the trial court as being overly broad.

Gerry Kowalski and Sam Cohen (Philadelphia, PA) obtained a denial of a motion to vacate an NASD arbitration award. Gerry and Sam's clients obtained a defense verdict in a NASD arbitration where the plaintiff, an aggrieved investor, asserted causes of action alleging mishandling of her brokerage account. At the arbitration, the arbitration panel granted the defendants' motion to limit the testimony of the plaintiff's expert to the area of investment performance and precluded the plaintiff's expert from testifying as to suitability of the investments at issue. In her motion to vacate the arbitration award in favor of the defendants, the plaintiff argued that the exclusion of her expert testimony as to suitability denied her a full and fair hearing, which required vacation of the award. In denying the motion to vacate, the court ruled that preclusion of expert testimony as to investment suitability did not meet the standard for vacation of an arbitration award under Pennsylvania law.

Joseph Cagnoli and John Hare (Philadelphia, PA) successfully had the Pennsylvania Superior Court reverse a $1.75 million verdict in an asbestos case and remand for a new trial. The original verdict was $5 million but, following post-trial motions, the trial court remitted the verdict to $1.75 million. The Superior Court has now vacated the remitted verdict and ordered a new trial on the basis that the trial court erred in refusing to submit the statute of limitations to the jury.

David Chmiel (Pittsburgh, PA) prevailed on appeal to the Superior Court of Pennsylvania in a legal malpractice action. The plaintiff had been convicted of murder and sentenced to death. Dave's client was appointed to represent him on his appeal to the Supreme Court of Pennsylvania. The plaintiff attempted to "fire" his court-appointed attorney, but Dave's client still timely filed a brief with the Supreme Court. The plaintiff filed suit alleging that his Constitutional right to represent himself was violated. The trial court sustained preliminary objections, and the Superior Court affirmed, finding that the plaintiff sustained no damages and Dave's client acted appropriately.

Alan Johnson (Pittsburgh, PA), with input from Jack Warner (King of Prussia, PA) and Walter Kawalec (Cherry Hill, NJ), won summary judgment for the insured lawyers in a major legal malpractice case that had verdict potential in the millions of dollars. The plaintiffs then filed an appeal to the Pennsylvania Superior Court more than 30 days after the summary judgment but less than 30 days after the filing of a praecipe for judgment. John Hare (Philadelphia, PA) filed a motion to quash the appeal, which was granted. The Pennsylvania Supreme Court denied the plaintiffs' Petition for Allowance of Appeal.

Additionally, Alan Johnson (Pittsburgh, PA) filed a motion to dismiss a factually vague civil rights complaint on the ground, inter alia, of federal qualified immunity for the municipal officials sued in their individual capacities. When the U.S. District Court denied the motion, Alan filed a qualified immunity interlocutory appeal. In the resulting published decision, the Third Circuit Court of Appeals established a new procedure, favorable to defendants, for individual defendants invoking federal qualified immunity in the context of a motion to dismiss. Thomas v. Independence Township, 463 F.3d 285 (3d Cir. 2006).

Wendy Smith and Pauline Tutelo (Roseland, NJ) obtained summary judgment in a construction defect case. The client was a distributor of synthetic stucco (EIFS). The EIFS was sold to the applicator for installation on a condominium building. After substantial completion of the construction of the building, the property began suffering from water infiltration through the windows, roof, and other elements of the building envelope. The developer/general contractor maintained control of the condominium association for approximately ten years after substantial completion. During this period, the developer-run association learned of potential problems with the EIFS installed on the exterior of the building but made no efforts to repair or remediate the problems. By the time the condominium association was turned over to the unit owners, the building had been experiencing continual water infiltration for almost ten years. At that point in time, the unit owner-run association filed suit against the developer/general contractor and all subcontractors, material suppliers and material manufacturers involved in the construction of the building envelope. Wendy and Pauline successfully obtained summary judgment dismissing the plaintiff's claims based on the Statute of Limitations. The developer/general contractor attempted to assert cross claims for contribution, common law and contractual indemnification. Wendy and Pauline were also successful in dismissing those claims based upon the developer/general contractor's failure to effect service of its claims and the fact that the indemnification agreement did not indemnify the developer/general contractor for its own negligence.

Mike McGirney and Sangeeta Spengler (Tampa, FL) obtained final summary judgment in a legal malpractice case. The client attorney was hired by a corporate entity after a writ of possession was issued against a lease of the property the corporate entity was leasing. The attorney negotiated a settlement in which the corporate entity would pay $250,000 to the owner of the property, with that money being credited towards the purchase of the property, if the closing occurred by a certain date. The corporate entity could not obtain the appropriate financing, and the closing never took place. The owner sold the property to a third party, and the corporation lost the $250,000. The corporate entity, its primary shareholder and another corporate entity controlled by that shareholder sued the attorney for malpractice. The plaintiffs sought recovery of the $250,000 and other damages resulting from the sale of the property. Mike and Sangeeta were able to have the corporate entities dismissed, leaving the individual shareholder claim. A Motion for Final Summary Judgment was filed as to the individual shareholder's claim, arguing that the shareholder did not have sufficient standing to bring the legal malpractice action as he did not have privity of contract with the attorney. The court agreed with this argument and granted the motion.

James Wilson and Anthony Ross (Scranton, PA) secured dismissal of all claims against their insurance broker client in a Lackawanna County case. The plaintiff alleged that their client provided misleading information on a federally regulated Standard Flood Insurance Policy (SFIP) purchased from the defendant. The plaintiff filed a Complaint alleging fraud, breach of fiduciary duty and negligence. Jim and Tony filed a Motion for Judgment on the Pleadings and argued that the contents of the SFIP are published in the Code of Federal Regulations. As such, Jim and Tony maintained that the plaintiff had constructive knowledge of the policy's contents based upon the CFR as a result. The plaintiff could not prove the requisite element of reliance. The court agreed and dismissed the action.

Christian Marquis (Pittsburgh, PA) obtained summary judgment on behalf of the Township of Shaler in two different cases. The first case involved a motorcycle accident wherein the plaintiff argued that he did not have warning of a blind curve, which allegedly caused his accident because a curve warning sign was obscured by foliage. The second case involved a declaratory judgment claim seeking an order that the Township should be required to own, maintain and repair a corroded storm sewer drain that traversed through the plaintiffs' property in a recorded easement which connected between two state owned roads and that was part of a larger storm sewer system in the Township wherein both the Township and PennDOT denied ownership thereof and the responsibility to maintain and repair.

Workers' Compensation

Kacey Wiedt (Harrisburg, PA) obtained a favorable decision on a workers' compensation case on behalf of his client, Harley-Davidson. The judge denied the claimant's Claim Petition and Penalty Petition. The claimant sought indemnity and medical benefits for undergoing a cervical discectomy fusion as a result of a work incident on December 28, 2003. Kacey was able to show that the claimant's medical condition was unrelated to the event of December 28, 2003, showing that the claimant gave inconsistent histories to Harley-Davidson and his medical providers.

Casey Watson (Williamsport, PA) obtained a favorable reversal from the Workers' Compensation Appeals Board, reversing an underlying decision of Judge Karl Baldys. The claimant had returned to work with restrictions following his work-related low back injury and surgery. The claimant was subsequently terminated by Lowe's while working on a light-duty basis for violations of the employer's sexual harassment policy. The claimant sought a reinstatement of benefits effective the date of his termination from Lowe's while working on a light-duty basis. In the underlying litigation, Judge Baldys concluded that the employer had properly terminated the claimant for sexual harassment, and he suspended benefits based on the date of the claimant's termination from employment. However, Judge Baldys reinstated benefits six months later based on a one-page office note from the claimant's treating physician. On appeal, the defendant successfully argued and convinced the Board that Judge Baldys erred in reinstating benefits because there was a lack of competent medical evidence to support that reinstatement and that the burden of proof rested with the claimant to prove all issues necessary to award a reinstatement once the claimant had been terminated for cause. The claimant will now appeal to the Commonwealth Court.

Kacey Wiedt (Harrisburg, PA) obtained a favorable decision in a workers' compensation case on behalf of Harley-Davidson. The judge terminated the claimant's indemnity and medical benefits. The judge also denied the claimant's Reinstatement Petition and Utilization Review Petition. If the claimant was successful on his petition, he would have received over $60,000 in back wage loss benefits plus ongoing indemnity benefits into the future.