Defense Digest

On The Pulse …Our Litigation Achievements...We are Proud of Our Attorneys for Their Recent Accomplishments...

Robin Snyder (Scranton) obtained a defense verdict in a medical malpractice case.  The plaintiff underwent a total knee replacement and was undergoing physical therapy at our insured's facility.  He claimed that the bike seat on which he was sitting during physical therapy fell one level and that he sustained a hemarthrosis followed by an episode of bacteremia as a result of his knee being jarred.  As result, he claimed that the knee prosthesis had to be removed and subsequently replaced.  The jury found that the facility was negligent but that the negligence was not the legal cause of the plaintiff's injuries.

Allison Bressler and Bill Conkin (Philadelphia) obtained a summary judgment dismissal of their client in an insurance coverage case arising out of an assault of a patron of a bar by the bar's employee-bouncers.  Judge Albert Sheppard wrote that our client's liability policy owed no duty to defend the bar against the claims of the injured patron since the complaint in the patron's suit against the bar made no mention of alcoholic beverages as a factor in causing the injuries from the assault.  Since there were no allegations that the injuries were incurred because the bar sold, served, or furnished alcohol, the "dram shop" coverage afforded under the insurance policy was not triggered.

Bill Conkin also obtained a summary judgment dismissal of his insurance client in a case filed on behalf of Old Republic concerning which insurance policy covered the personal injury claims made by a trucker who was hurt while unloading chairs from a truck.  The case involved choice of law issues pertaining to the insurance coverage laws of New York, Florida, and Pennsylvania.  Judge Cynthia Rufe of the Eastern District agreed with Bill that New York law governed the interpretation of his client's policy and that the Old Republic policy was, therefore, the proper policy that owed duties of defense and indemnification to the defendant in the personal injury case filed by the injured trucker.

Megan Cinberg (Norristown) obtained summary judgment in a civil rights lawsuit involving allegations that a drug rehabilitation program for prisoners discriminated against a Muslim inmate based upon his race and religion.  Megan also obtained summary judgment in a case involving allegations that the Lower Moreland Police Department violated the First Amendment Rights of a prisoner who sent dozens of letters to the Township complaining of misconduct and abuse.

Walter Kawalec (Cherry Hill) recently won affirmance in the Appellate Division of an order granting summary judgment.  Our client was a tree cutting company and the employer of the plaintiff.  During the course of his employment, he came in contact with high voltage electrical lines and suffered electrocution and catastrophic injuries.  The Appellate Division agreed with the trial judge that even the employer's knowledge of the risk of injury did not amount to the substantial certainty of injury necessary to overcome the workers' compensation statute's exclusivity.  The court affirmed the summary judgment in favor of the employer.

Kevin McKeon (Cherry Hill) won a recent defense verdict on behalf of DaimlerChrysler in a warranty/lemon law case in Sussex County, New Jersey.  The plaintiff claimed defects in the transmission, which necessitated two major transmission overhauls and a complete transmission replacement.  In the three-day trial, the jury returned a verdict in favor of DaimlerChrysler on all counts.  This type of litigation features mandatory fee shifting, resulting in zero fees awarded to plaintiff's counsel.  This matter had been in active litigation for 18 months.

Lary Zucker (Philadelphia) obtained a defense verdict on behalf of the Palace Rolling Skating Rink after a Philadelphia Court of Common Pleas arbitration.  The case involved a woman who sustained a trimalleolar fracture after being run into by another skater.  The plaintiff argued that there was uncontrolled skating going on at the time of the accident, but videotape surveillance demonstrated the plaintiff's version was not credible.  The plaintiff did not appeal the adverse result.

Marna Johnson (Cherry Hill) and Lary Zucker (Philadelphia) successfully obtained a dismissal of a claim against a carnival through a motion for summary judgment.  The carnival was set up in a church parking lot.  The plaintiff was exiting the church building to go to the carnival when she tripped over the threshold and sustained a severe ankle fracture.  The court ruled that the carnival's duty to inspect did not extend to the structure of the adjacent building.

Seth Schwartz and Lary Zucker (Philadelphia), both of the firm's Sports and Amusement group, won two recent victories.  First, our client, USA Hockey, gained a dismissal of a joinder complaint filed by the Flyers Skate Zone alleging that USA Hockey was responsible for the condition of ice that caused an accident during a rec league hockey game.  The court ruled that there was insufficient basis for the joinder.  Second, our client, United Skates of America, secured a dismissal of a roller skating claim when a video surveillance camera caught the plaintiff signing a waiver card which she previously denied signing.  The plaintiff's attorney consented to a defense arbitration award and has petitioned to be removed as counsel.

Diane Magram and Walter Kawalec (Cherry Hill) won a reversal in the Appellate Division.  The plaintiff in an uninsured motorist case sought to block our client's demand for trial de novo.  The arbitration award was more than the amount required by the policy to demand a trial de novo; however, the plaintiff had coverage under two policies.  Thus, our client's share of the award was less than the amount necessary to demand a trial de novo.  The Appellate Division rejected the application of an underinsured motorist case, which suggested that the carrier's pro-rata share controls whether de novo rights exist, and held that the language of the policy was clear: The arbitration award was greater than the amount in the policy.  Therefore, our client could request a trial de novo.

Carolyn Bogart (Cherry Hill) obtained Summary Judgment in Mercer County, New Jersey in favor of Comcast Spectacor and Global Facilities, LP as the management company for the Sovereign Bank Arena.  With the matter pending for trial, plaintiff's complaint was dismissed with prejudice as the plaintiff could not prove that "the Mode of Operation"  of the defendant's facility obviated any need to prove actual or constructive notice to the Arena of the existence of a wet substance on the staircase where the plaintiff allegedly fell. 

Ed Galang (Norristown) successfully obtained a dismissal of a cardiologist through a motion for summary judgment in the Court of Common Pleas of Delaware County before Judge Proud where the plaintiff alleged that an untreated priapism caused damages stemming from his permanent impotence.

Estelle Kokales (Pittsburgh) obtained several recent successes.  First, she obtained an affirmance by Judge Pellegrini of the Commonwealth Court of Pennsylvania dismissing the claimant's Claim Petition alleging he suffered a work-related myocardial infarction.  In another case, she obtained a Decision and Order from Judge Cercone terminating the claimant's benefits.  The judge found Estelle's expert witness more credible than the claimant's witness.  In a third matter, she obtained an order from Judge Lowman in a state fatal claim case dismissing her employer and insurance carrier of any liability.  In an additional case, Estelle obtained a Decision and Order from Judge Desimone dismissing the claimant's reinstatement petition.  Judge Desimone found that the claimant did not meet his burden of showing that his work injury again adversely affected his earning power.  The judge found the employer's witnesses more credible than the claimant's.  And, lastly, she successfully defended a workers' compensation case involving a Claim Petition and Penalty Petition before Judge Ada Guyton in Greensburg, Pennsylvania.  The judge denied both of the claimant's petitions.

Estelle also obtained a decision from the United States Department of Labor denying the claimant federal black lung benefits.  The Department found that the claimant did not have pneumoconiosis.  The Department concluded that the claimant's chronic obstructive pulmonary disease was due to cigarette smoking.  Estelle also obtained a Decision from the United States Department of Labor denying a widow federal black lung benefits.  The Department found that the autopsy evidence did not establish that pneumoconiosis caused, contributed to, or hastened her husband's death.

Jack Senechal (Cherry Hill) obtained a defense verdict on behalf of his insurance client in a binding PIP/UIM arbitration.  The plaintiff was the restrained driver in an automobile accident on the Garden State Parkway.  A year and a half later, the plaintiff underwent surgery to remove two herniated discs in his cervical spine, which were replaced with a bone graft and metal plate fusion.  On the PIP claim, Jack demonstrated that the disc surgery with graft was not casually related to the motor vehicle accident.  On the UIM claim, he demonstrated that the plaintiff did not surmount the tort threshold.  In the end, his client's UIM policy was not reached.

Samuel Cohen (Philadelphia) successfully obtained a dismissal of claimants' claims with prejudice in their entirety in a case before the National Association of Securities Dealers Dispute Resolution.  Additionally, the arbitration panel assessed forum fees in the amount of $9,450 against the claimants.  The claimants were an irrevocable life insurance trust and the trustee.  The matter arose from the purchase of a variable annuity in the name of the trust.  The claimants alleged that the variable annuity and its mutual fund sub-accounts were unsuitable for the investment objectives of the trust.  The claimants sought $103,505 in unrealized losses to the value of the variable annuity.  The claims were dismissed because Sam was able to have the claimants' expert precluded from any testimony on damages, and because the trust continued to hold the variable annuity and had not sustained any realized loss.

Christopher Reece (Akron) and James McGovern (Pittsburgh) successfully argued before the Cuyahoga County Court of Common Pleas in Cleveland, Ohio that a default judgment should not be entered against their client, The Help Network.  Both Chris and Jamey were retained to defend a motion for default judgment against The Help Network, and they successfully argued that The Help Network should be allowed to file an answer, instanter, and avoid a default judgment.  By avoiding the default judgment, both Chris and Jamey successfully avoided the possibility of a nearly $300,000 default judgment.

Sam Casolari (Akron) successfully obtained an affirmance of a trial court's granting of summary judgment in favor of his insurance client.  The trial court granted summary judgment in favor of Sam's client in that it owed no duty to provide uninsured/underinsured motorist coverage on a commercial policy where the plaintiff did not act within the course and scope of his employment.  The court of appeals upheld the trial court's granting of summary judgment using the same line of argument advanced at the trial court level.  The plaintiffs had demanded over $300,000 to resolve their injury claims.

Ross Carrozza (Scranton) obtained a Decision and Order from Judge Kutz terminating the claimant's benefits.  The judge also denied the claimant's Review Petition to expand the injuries.  Finally, the judge also found Ross's expert witness more credible and pointed out that the claimant's expert rendered equivocal opinions based on Ross's cross-examination.

Steve Poljak and James McGovern (Pittsburgh) obtained an affirmance from the Third Circuit Court of Appeals of the District Court's dismissal of the plaintiff's pro se complaint alleging various state and federal law violations regarding the plaintiff's wife's underlying workers' compensation case.  The plaintiff sued numerous parties including the firm's client, who was the insurance adjuster for the employer's workers' compensation carrier, which denied coverage.

Sharri Horowitz and Larry Berg  (Cherry Hill) obtained summary judgment in a case involving retaliation and constructive discharge allegations.  The judge dismissed the plaintiff's entire complaint based on the defendant's brief arguing that the plaintiff's former employer: (1) did not return the plaintiff immediately to his job (after a workers' compensation injury) because of an ongoing fraud investigation conducted by the workers' compensation insurance carrier and not for filing a workers' compensation claim; and (2) never forced the plaintiff to resign when they had held open his job and had given it back to him once the fraud investigation concluded.

Mindy Miller and Michael McGirney (Tampa) obtained a summary judgment and dismissal of a coverage lawsuit.  The matter arose out of an underlying class action lawsuit filed against a national residential builder.  A pesticide subcontractor hired by the builder purportedly sprayed water instead of pesticide for termites at houses in a number of large residential developments in Florida.  A class action lawsuit was filed against the builder and settled.  The builder then filed an action against its insurance company for payment of the money paid to settle the class action lawsuit.  The builder sought close to $4 million for the amount paid for the settlement and attorney's fees.  Mindy and Michael were able to obtain summary judgment from the court on the issue that there were multiple occurrences over multiple policy periods rather than one occurrence in one policy period.  

Doug Herman (Philadelphia) obtained summary judgment as to all claims in an accounting malpractice claim.  The alleged negligence occurred over ten years ago, and the litigation has been ongoing for some time.  Doug prepared the motion and brief with Jay Rothman (Philadelphia). 

Jason Banonis (Bethlehem) obtained a dismissal on behalf of a PPCIGA defendant in the Bucks County Court of Common Pleas.  The plaintiff settled with a non-PPCIGA defendant on the basis of a joint tortfeasor release.  The settlement amount totaled less than the non-PPCIGA defendant's policy limits.  Under Carrozza v. Greenbaum, currently on appeal to the Pennsylvania Superior Court, the plaintiff failed to exhaust her rights under the settling joint tortfeasor's liability coverage before proceeding against the PPCIGA defendant.

Michele Frisbie (Doylestown) obtained a defense verdict in a case in which the plaintiff sustained a hit to the head from a box door hinge that pulled out of a door at her client's facility, a fitness center.  The panel awarded $10,500 to the plaintiffs but only against the co-defendant, the general contractor.  Michele also received a defense verdict in a case wherein the plaintiffs bought a home which they later found had water in the basement.  They sued the sellers and her client, the sellers' real estate agent.  The panel awarded $12,000 to the plaintiffs against the sellers, but not against the real estate agent.

Howard Myerowitz (Roseland) obtained a summary judgment motion on behalf of the YMCA of Union County, New Jersey.  The plaintiff was an 89-year-old woman who slipped and fell while exiting the YMCA, which was allowing its building to be utilized as a polling place.  The plaintiff had just voted in the 2000 presidential election.  Howard argued that the YMCA was entitled to summary judgment pursuant to the New Jersey Charitable Immunity Statute.  The plaintiff's attorneys argued that she was not a beneficiary of the YMCA's charity and that the YMCA was not entitled to the protection of the statute because only one percent of its revenues came from donations.  The judge agreed with Howard's position that, because the YMCA was allowing its building to be used as a polling place as part of its charitable mission, the plaintiff was the beneficiary of the YMCA's charity.  The judge also agree with Howard that the issue was not the source of the YMCA's revenue, but whether the YMCA was using its funds in furtherance of its charitable purpose.

James McGovern (Pittsburgh) obtained a defense verdict in an arbitration trial in the U.S. District Court for the Western District of Pennsylvania in which his client was a third party administrator for an employer's health benefits plan.  A baby was born in Illinois and ultimately underwent a small bowel and liver transplant at Children's Hospital of Pittsburgh.  The hospital sued the employer and the TPA for payment of almost $2 million in hospital bills after the employer's stop-loss carrier declined coverage.  The arbitrators entered an award against the employer for $850,000 but in favor of James' client on all counts, including breach of contract, breach of ERISA fiduciary duties, and breach of the TPA agreement.

Kevin Conaboy (Scranton) obtained a nonsuit in a case tried in Luzerne County, Pennsylvania.  The plaintiff, a disbarred attorney who was representing himself, alleged to have been injured when struck by a vehicle while crossing the street outside of the Luzerne County Courthouse.  Kevin successfully argued that the plaintiff had not presented any evidence of negligence on the part of the defendant, and the judge dismissed the case at the close of the plaintiff's case.

Christopher Reeser (Williamsport) obtained a defense verdict in a negligent security/assault and battery case in Luzerne County, Pennsylvania.  The plaintiff was an animal rights protestor who was protesting the use of animal acts at a circus put on by the Shriners.  She claimed to have been assaulted by a security guard who erroneously believed that the plaintiff was trespassing on what was actually public property.  The jury found that there was no assault and, therefore, did not have to reach the negligent security issue.

Jack McGrath (Scranton) obtained a defense verdict in Luzerne County, Pennsylvania in a case involving an intersectional collision between a police vehicle and the defendant.  The police officer was allegedly in a hot pursuit at the time of the accident.  It was alleged that the defendant ran a stop sign and as a result, caused the accident with the marked police car.  Prior to the commencement of trial, the plaintiffs had collected over $300,000 in underinsured motorist payments.  Jack was able to establish that the defendant was not at fault for the accident, but it was, in fact, the police officer who was traveling too fast for conditions and did not slow down and proceed cautiously at the stop sign where the collision occurred.  Although the defendant was found negligent, his negligence was not found to be a factual factor causing the accident, and Jack was able to obtain a complete defense verdict.

Michael McGirney and Edward Gagain (Tampa) successfully obtained a Motion for Summary Judgment in a latex glove case.  The plaintiff, who was a hospital nurse, alleged that she developed immune system problems as a result of exposure to latex gloves distributed by our client.  Mike and Ed were able to convince the court that the statute of limitations had expired as the plaintiff knew of her problems for years before bringing the action.  They discovered that the plaintiff had filed a workers' compensation claim with the hospital years before this action was brought.

Dan Sherry (Newtown Square) received a defense verdict in a Chester County, Pennsylvania case in which Dan represented a family medicine physician and her group.  This case involved the death of a 33-year-old woman from colon cancer.  The plaintiffs' claim was that the patient was exhibiting signs and findings suggestive of colon cancer and that the patient had a strong family history of that disease.  The case was defended on standard of care, causation, and the contributory negligence of the patient for not following up on a timely basis.  The jury found no negligence on the part of the health care providers.

James Cole (Doylestown) and Eric Brown (Philadelphia) were successful in having the plaintiffs' lawsuit alleging breach of contract and insurance bad faith dismissed upon summary judgment.  The plaintiffs alleged that the damage to their home was covered under their homeowner's policy because some of the water had backed up through sewer pipes, which was covered by the policy, even though most of the water damage was caused by the excluded peril of surface water entering the home.  The district court judge, relying on a case Bill Conklin and Howard Dwoskin (Philadelphia) had won eight years ago, found that coverage was excluded in its entirety based upon the language of the policy and dismissed the case.

Christian Marquis (Pittsburgh) obtained a decision in favor of the Borough of Green Tree in an arbitration proceeding in the Court of Common Pleas of Allegheny County.  The plaintiffs, who were homeowners, filed suit against the Borough as a result of a sanitary sewer back-up in their home.  The arbitration panel ultimately found in favor of the Borough since it was established that the Borough did not have notice of the alleged dangerous condition of the sewer line that caused the back-up, which is required in order to hold a local agency liable under the utility service facilities exception of the Political Subdivision Tort Claims Act.

Candy Heimbach (Bethlehem) won a recent defense verdict in a case in which the plaintiff alleged negligence against a cardiologist in the treatment of his wife.  Our client was performing an angioplasty after finding a 98 percent blockage of one of the wife's vessel.  He administered a medication to reduce spasm of her vessels, after which her blood pressure continued to drop well beyond the expected range, apparently in reaction to the medication.  After many efforts, she was successfully stabilized, but died several days later.  Candy successfully defended the doctor against criticism of his administration of the medication and his efforts to care for the wife when she experienced the unusual reaction to it.  In fact, although the jury was out for 20 minutes before returning the defense verdict, one juror stated that it took only one minute to decide the case, and the remaining time to order lunch.

Candy Heimbach and Dan Snyder (Bethlehem) won a defense verdict in a dental malpractice case.  Candy represented a general dentist who was alleged to have negligently performed two root canals and a crown on three of the plaintiff's teeth following a bicycle accident.  Candy persuaded the jury that the dental problems commenced with the bike accident and her client provided conservative, attentive care.  Candy's witnesses explained that, although the teeth may fail, and in one case did, it was not due to a deviation in the standard of dental care performed by her client.  Unlike Candy's cardiology case victory, this time the jury took ten whole minutes in reaching the defense verdict.

Paul Laughlin (Bethlehem) won a defense verdict in a medical malpractice case.  The plaintiff alleged negligence against our client, a urogynecologist, for his surgical care, after which she suffered complications.  She ultimately recovered.  Paul was successful in arguing that the case involved known complications of which the plaintiff had been advised, and that the alleged damages were not due to any negligence on the part of our client.

Jim Pocius (Scranton) was successful in a number of recent cases.  In the first case, he obtained a termination petition in a case where the claimant had made a claim of ongoing disability.  In another matter, a hotly contested mental disability case, the claimant alleged disability due to anxiety over his treatment at work.  The employer prevailed when the Workers' Compensation Judge found that the claimant had only a subjective reaction to normal working conditions.  In the last matter, the claimant had alleged that she injured her foot at work while walking up the steps.  However, through diligent review of medical records, we were able to find that she had a previous medical condition involving her feet.  The Judge found that the claimant had no work injury and continued to suffer only from pre-existing conditions.