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On the Pulse …Important and Interesting Litigation Achievements* . . . We Are Proud of Our Attorneys for Their Recent Victories

December 1, 2015

Casualty

Meg Kelly (Scranton, PA) obtained a defense verdict in a recent binding arbitration in Lackawanna County, Pennsylvania. The plaintiffs, an elderly couple in their 80s, were crossing the street from a parking lot to go to their daughter’s home at dusk and in light rain. They claimed they looked both ways before crossing the street, did not see anything and began to cross. They were a few steps into their crossing when the defendant hit the husband with his minivan. The defendant admitted to going slightly over the speed limit. The husband was seriously injured, resulting in a month-long stay in a rehab hospital and alleged cognitive deficits. He has no recollection of the accident. The elderly wife, who cried at the arbitration to the point that she had to be escorted out of the room, testified that the defendant’s vehicle appeared out of nowhere. The arbitrator rendered a defense verdict, assessing the plaintiffs 70 percent liability and the defendant 30 percent liability.

In another matter handled by Meg, she obtained a defense verdict in a binding arbitration in Wayne County, Pennsylvania. The plaintiff was crossing the street from a park when he was struck by the defendant’s vehicle. He sustained, among other things, a head injury necessitating life flight. There was a liability dispute because the plaintiff’s witnesses claimed he was in the crosswalk and our witnesses testified he was not in the crosswalk. The plaintiff had no memory of the accident. The arbitrator found no liability on the part of the defendant and found the sole cause of the accident was the plaintiff running or walking into the roadway without properly stopping and observing the traffic conditions.

Allison Krupp (Harrisburg, PA) obtained a defense verdict from a Philadelphia County arbitration panel in a case that arose from a rear-end motor vehicle accident in which the insured’s nephew was operating the insured’s vehicle without his knowledge or permission. The plaintiff filed suit against the insured, his nephew and the body shop where the vehicle was allegedly being kept immediately prior to the accident. The nephew was sued for negligence, and the insured and body shop were both sued for negligent entrustment. The principal issues with respect to the negligent entrustment claim against the insured centered on whether the nephew had been using the vehicle with the insured’s knowledge and permission and, if so, whether the insured had reason to know that his nephew was unfit or incompetent to operate the vehicle on the date of loss. The panel of three arbitrators unanimously ruled in favor of the insured, finding that the plaintiff failed to establish negligent entrustment of the vehicle.

In a personal injury matter, Robert Diehl (Roseland, NJ) obtained an involuntary dismissal at the start of trial. The plaintiff was a passenger in a vehicle driven by the co-defendant driver who drove over the side of the road and crashed into a barn. Despite having been cited at the scene of the accident for failing to place the vehicle in park, the co-defendant driver testified at his deposition that he properly parked his car on the property abutting the road and that the accident was actually caused by a ground collapse beneath his vehicle. The plaintiff thereafter amended his complaint to name two additional defendants, including the property owner and our client, a separate individual who had previously entered into a contract to purchase the property but had not yet taken title. Bob previously moved for summary judgment on the plaintiff’s failure to retain an expert, which was denied, as the court ruled that the plaintiff did not need an expert to offer his pure theory of a ground collapse to the jury. In his pretrial exchange, however, the plaintiff’s counsel requested that the jury be charged with the duty of landowners and occupiers to inspect and warn. Bob responded by filing a motion in limine, arguing that this sought to charge the jury with a greater standard of care than the general negligence allegation of a ground collapse in the complaint, and that any duty to inspect and/or warn would have required expert testimony to offer the requisite standard of care. The court agreed. Plaintiff’s counsel attempted to save this claim by arguing that the duty to inspect and warn was the only allegation he was seeking to offer at trial regarding the property, and that such a ruling would constitute a dismissal of his complaint as to the defendants with ownership interest in the property. The judge accepted this representation by plaintiff’s counsel and dismissed the complaint with prejudice as to both our client and the co-defendant property owner.

After two years of protracted and significant litigation, Rick Ravine and Ryan Burns (Fort Lauderdale, FL) obtained a voluntary dismissal with prejudice for our client, a manufacturer of a truck-mounted crane, in a catastrophic brain injury case. The plaintiff was an operator of a crane who fell 10 feet head-first, sustaining a skull fracture and numerous fractures throughout his body, and enduring a lengthy coma. While he recovered to a functional level, he suffered from permanent cognitive impairments, permanent loss of working capacity, and numerous permanent physical impairments from his injuries. He developed neurogenic bladder dysfunction and had a workers’ compensation lien of over $1 million. The plaintiff’s expert claimed several standards violations regarding placement of handholds and the design of the ladder and platforms surrounding the operator’s chair of the crane. The plaintiff elected to dismiss the case after being threatened with a motion for summary judgment on the issue of causation, as well as sanctions for fraud on the court following discovery of a statement made to his neurologist several months after the accident describing the accident as being caused by the plaintiff tripping over a pipe used by his co-workers as an umbrella stand.

Jennie Philip (Doylestown, PA) won before a federal arbitration panel in the U.S. District Court for the Eastern District of Pennsylvania. Jennie represented the homeowners’ insurance carrier in a claim for breach of contract. The plaintiffs claimed that a storm with strong winds “wracked” their 5,000 square foot home, causing interior water damage and structural defects. The plaintiffs made a claim for repairs in almost every room of their house, including a new roof, with damages in excess of $100,000. The plaintiffs presented testimony that the damage was “sudden and accidental” within the terms of the insurance policy. Jennie was able to establish, through testimony of expert witnesses, that the “destruction” claimed was related to the age of the home and original installation defects, which were not attributable to a wind/rain storm.

In an aggravated assault by motor vehicle trial held in the Court of Common Pleas of Lehigh County, Pennsylvania, Kevin Hexstall and Mohamed Bakry (Philadelphia, PA) obtained a defense verdict. Our client, employed as a truck driver, and while on the job and driving a tractor-trailer, was involved in a serious accident with a passenger vehicle. He was approaching a red traffic signal when he realized that he could not apply the brakes in time to stop the tractor-trailer without jack-knifing. He activated his air horn to notify other drivers at the intersection that he was unable to stop. There were two vehicles on either side of the intersection. One driver was a 19-year-old-female who proceeded into the intersection when her light turned green. Her vehicle was t-boned by our client’s tractor-trailer as soon as she pulled into the intersection. She was in a coma for three weeks, was hospitalized for three months, and required extensive physical therapy to re-learn how to walk and talk. Our client was charged with aggravated assault by motor vehicle (a felony) and recklessly endangering another person (graded as a misdemeanor), along with traffic citations such as careless driving and reckless driving. The District Attorney’s office refused to engage in any negotiations and made no plea offers. Kevin cross-examined the Commonwealth’s fact witnesses and experts in an attempt to establish that our client’s conduct did not constitute criminal behavior. Kevin argued in opening and closing statements that, while the evidence may have established that the accident was our client’s fault, in order to convict a defendant of these charges, the Commonwealth must prove gross negligence or recklessness, and that they clearly failed to do so beyond a reasonable doubt. The jury deliberated for 20 minutes and rendered a verdict of not guilty on all counts. 

Health Care

Bill Courtright and Matt Keris (Scranton, PA) received a demurrer dismissing a medical malpractice action in its entirety based on the “Two-Disease Rule.” The case involved clear liability for lost breast biopsy samples by a hospital nurse. The complaint did not state that the plaintiff had breast cancer, and this remained the case during oral argument on preliminary objections. The plaintiff sought damages for the anxiety she suffered when she learned that her pathology samples were missing and for her “fear of cancer diagnosis.” Her husband sought recovery for negligent infliction of emotional distress for being present with his wife when she learned the samples were lost and for observing her anxiety in not knowing whether she had breast cancer. The plaintiffs demanded $2.5 million to settle the case at the outset. The Monroe County judge properly held that the “Two-Disease Rule,” originally stemming from asbestos litigation, was applicable in medical malpractice cases, but that the depression and anxiety the plaintiff and her husband suffered prior to a cancer diagnosis is not recoverable.

Steve Ryan and Joe Hoynoski (King of Prussia, PA) were victorious in a prostate cancer death case. The patient, after a two-year period of pain and suffering, died at 52, leaving behind five children and his wife. The patient allegedly requested early PSA monitoring, starting at age 45 instead of 50, because his father and grandfather had prostate cancer. Our client, his family doctor, secured levels at age 45 and 46 as part of the annual checkup for a baseline, with a plan to recheck at age 50. Both values were in normal range, but went from 1.9 to 3.4 (normal is 0.0-4.0). At age 50, the new level was 10.9, resulting in referral, surgery, radiation, androgen ablation and chemotherapy, all to no avail. Securing supportive standard of care testimony was proving very difficult, as the standard for PSA screening in 2005-2006, to the extent there was one, had not yet begun to change. Apparently, the decedent was advised each year that his “blood work” was normal, and he assumed that the annual PSA screening was included, per his understanding with the doctor. The plaintiff’s allegation that the decedent believed there was an agreement to test annually (not evidenced in the office record) was circumstantially corroborated by his history to the specialist that his PSA had been normal “every year.” Settlement authority at the full Mcare limit of $1 million was obtained, but the physician did not want to settle, despite a real exposure to his practice assets. The plaintiff agreed to a hi-low arbitration, which was heard by the Dispute Resolution Institute. A Prezi presentation created by Joe Hoynoski was used for our opening and closing, which was very effective. The widow, the doctor and one of the children testified live. Expert evidence was submitted on CVs and reports. The judge found there was negligence, but that it was not the factual cause of the harm and rendered an award in favor of the defendant.

Brooks Foland (Harrisburg, PA), with the assistance of paralegal Arkie Simmers, obtained a defense jury verdict in a nursing malpractice case in Berks County, Pennsylvania. The decedent, a 76-year-old woman, had chronic and longstanding lymphedema and suffered recurrent upper and lower extremity wounds. Home health nurses, our clients, provided care for these wounds, including new wounds that often emerged due to the fragility of the decedent’s skin. The decedent also suffered from several co-morbidities including heart disease, COPD, emphysema and hypertension, and she was receiving Coumadin therapy. There were no signs or symptoms of infection during any of the four nursing visits in the home. Within 24 hours of the fourth visit, however, the decedent noticed increased swelling and redness in her right leg, as well as dizziness and fatigue. She was transported emergently to the local hospital and was treated for cellulitis of the right leg and a UTI, among other diagnoses. Her breathing rapidly deteriorated. She was intubated, placed on a ventilator and sedated; sepsis and multi-organ failure followed. The decedent’s family made the decision to terminate life-sustaining measures after 10 days in the hospital. The Estate filed a negligence suit against the visiting nurse’s association and the last two nurses who treated the decedent in her home. After four days of trial, the jury unanimously found the defendants not negligent.

Eric Grogan (Roseland, NJ) obtained a dismissal with prejudice as to our clients, a hospital and a resident, in an Essex County, New Jersey case. The plaintiff claimed that during an admission to the hospital to give birth, she received ten times the appropriate dose of anesthetic, which allegedly led to her being found unresponsive and foaming at the mouth. CPR was given over an extended time. The plaintiff claimed damages included one-sided weakness and visual changes, as well as alleged psychiatric injuries. The plaintiff served a Notice of Claim on the hospital, a public entity, which was untimely. She also failed to serve a Notice of Claim against the resident, claiming the doctor’s name was illegible in the chart and that it was unclear whether the doctor was an independent contractor and, therefore, not subject to the Notice of Claim statute. The chart included a pre-printed section stating “Resident” where the illegible doctor’s name was written, and the court determined that, regardless of the spelling of the doctor’s name, the plaintiff was on notice that the alleged doctor was a resident and, therefore, an employee of the public entity hospital, and that a Notice of Claim was necessary to continue any claim against the doctor.

Candy Barr Heimbach and Michelle Wilson (Allentown, PA) obtained a defense verdict in a binding arbitration in Lehigh County, Pennsylvania. The plaintiff alleged negligence against a hospital and its alleged agent-radiologist in the interpretation of a mammogram, claiming that it caused a year’s delay in the diagnosis of breast cancer, the need for additional treatment, and the resulting death of his wife, who was a nurse at the involved hospital. We presented defenses, including the lack of negligence in the interpretation of the films, the comparative negligence of the decedent in waiting to report a palpable lump in the intervening time and the aggressive nature of her particular disease process. The arbitrator found that the doctor was not negligent in his care of this patient.

In a medical negligence case against a general surgeon in the Summit County Court of Common Pleas of Ohio, Stacy Delgros (Cleveland, OH) obtained a unanimous defense verdict. Stacy’s client was a general surgeon who performed a colostomy procedure on a 32-year-old woman due to a Grade 2 thermal injury to half the circumference of her anal canal that was caused by the laser removal of two external hemorrhoids by a family physician. Initially, the plaintiff and her husband sued only the family physician for causing the injury, but the family physician testified in his deposition that his laser was incapable of causing a thermal injury as it was a “cold laser.” He testified that the plaintiff did not have a thermal injury, but had a fissure that only required a small repair procedure. In addition, the family physician hired a surgical expert to criticize Stacy’s client for performing an unnecessary colostomy and for negligence in the technical performance of the colostomy, necessitating a revision procedure three days later. As a result, the plaintiffs amended their complaint to add Stacy’s client. The plaintiffs’ experts believed Stacy’s client’s description and characterization of the injury and did not criticize her client, unless it was proven that the patient did not have the injury described. The family physician’s own expert strongly disagreed with the family physician that the laser could not cause a thermal injury, and the manufacturer’s manual contained repeated warnings that the laser could cause thermal injury, particularly if used incorrectly. The plaintiff claimed to suffer from chronic rectal pain and dysfunction as a result of the injury she sustained during the hemorrhoid removal procedure. There was a great deal of conflict between Stacy’s client and the family physician at trial, but the jury returned a unanimous defense verdict for Stacy’s client and returned a majority defense verdict for the family physician.

Professional Liability

Marty Schwartzberg (Melville, NY) obtained summary judgment and dismissal of all claims against our client, a prominent architectural and engineering firm. The case arose when the plaintiff, while on a sidewalk, was struck by a pipe that fell from 18 stories during the erection of pipe scaffolding around a building. The defense strategy focused on the architect’s lack of an obligation for direction, supervision or control of the work, or for site safety. The court held that our client demonstrated its entitlement to summary judgment and that it had no duty to the plaintiff, nor to the other defendants, with respect to the scaffold construction and, therefore, could not have breached a duty that did not exist in the first place. The court further held that the contract between the building owner and the co-defendant restoration company established that our client had no responsibility over the means and method of construction, safety precautions at the site, or the acts or omissions of the contractor. 

In a “junk fax” case under the TCPA, Brigid Alford and Allison Krupp (Harrisburg, PA) prevailed in the Philadelphia County Court of Common Pleas on a motion for class action certification. Following a class certification hearing in March, the judge issued an order and opinion denying the plaintiff’s motion. The proposed nationwide class would have been comprised of over 15,000 claimants in a case where, had the class been certified and a decision on the merits been entered for the claimants, the statutory damages alone would have been a minimum of $500 per claimant. During the evidentiary hearing, the court sustained the defendant’s objection to the introduction of the plaintiff’s expert report regarding the feasibility of the class certification process. In refusing to certify the class, the court found that the plaintiff failed to satisfy the requirements of numerosity/ascertainability, typicality, adequacy of representation and predominance. Of note is that, a few weeks prior to this decision, the court had certified the class in another TCPA case filed by the same plaintiff and the same plaintiff law firm.

Larry Berg and Kara Pullman, with the assistance of law clerk Brielle Kovalchek (Cherry Hill, NJ), obtained a no cause in an employment matter in Atlantic County, New Jersey. The plaintiff was a former employee of the defendant corporation and alleged she was subject to sexual harassment and a hostile work environment during her employment. The plaintiff, along with her sister, father and brother-in-law, were all employees of the defendant corporation at one point. The plaintiff and her sister have both alleged that the defendant owner of the company made suggestive remarks and touched them inappropriately. None of the plaintiff’s allegations were supported by the testimony of her non-family-member co-workers. The plaintiff’s retaliation claim was dismissed on summary judgment, and at trial, the jury unanimously found in favor of the defendants after deliberating for less than 30 minutes.

Dennis Dore, Jessica Lanifero and Christopher Walsh, with the assistance of paralegal Bonnie Fay (Jacksonville, FL), obtained a defense verdict in a bad faith matter in the Florida Northern District Court. The case involved allegations of third-party bad faith claims in connection with our client’s refusal to tender policy limits without sufficient supporting medical documentation. After our client received an initial demand package containing chiropractic treatment records and an MRI report evidencing a traumatic left medial meniscal tear, no additional records were provided demonstrating a surgical recommendation, permanent impairment or ongoing treatment. The defendant made an initial offer and followed-up with a number of requests to plaintiff’s counsel for additional records. Those requests were ignored, and suit was filed. Following a five-day trial, the jury deliberated and concluded that the plaintiff had failed to demonstrate that our client acted in bad faith in its handling of the plaintiff’s claim and returned a defense verdict in the defendant’s favor. The defense verdict represents a unique achievement in Florida where carriers rarely take bad faith cases to trial, and rarely win.

Ray Freudiger and Matthew Hamm (Cincinnati, OH) obtained summary judgment on three of four counts in a first-party bad faith/breach of contract action pending in the Stark County (Ohio) Court of Common Pleas. The plaintiff’s lawsuit arose from the denial of a claim following a fire that destroyed his brand new, custom-built mobile home. The plaintiff asserted claims of unfair trade practices, breach of contract, bad faith and punitive damages against our client. The last settlement demand prior to the court’s ruling was $500,000. Ray and Matt successfully argued that the claim was, at a minimum, fairly debatable and that the denial of coverage was premised upon a reasonable justification. The court agreed and dismissed the bad faith and punitive damages claims with prejudice. The court also agreed that the unfair trade practices claim was without support under Ohio law and dismissed that claim as well. Of note, the court’s ruling came just six days prior to the scheduled start of trial. Upon receipt of the court’s judgment entry, Ray was able to settle the remaining breach of contract claim for merely five percent of the plaintiff’s last demand prior to the court’s decision.

In this legal malpractice action, Howard Mankoff (Roseland, NJ) obtained a defense verdict. Our client represented the plaintiff in a commercial dispute concerning the ownership of a business and the distribution of profits from the business. The plaintiff thought he had agreed to settle with his former business partner for $1 million. When the agreement fell through, the plaintiff retained our client to represent him. Our client was eventually conflicted out of the case. The plaintiff claimed that when he obtained the file from our client, he learned for the first time that there had been a $400,000 settlement offer that our client allegedly never conveyed to the plaintiff. The plaintiff sued on several theories, including the failure to request equitable relief and not naming as a defendant the person who incorporated the business. Based on a summary judgment motion by Bob Diehl (Roseland, NJ), all theories, except the failure to convey the settlement offer, were dismissed before trial. After a four-day trial, the jury deliberated for 20 minutes before returning a defense verdict.

Joel Wertman (Philadelphia, PA) obtained a defense award at arbitration in Lehigh County Pennsylvania. Our client, an insurance agent, was alleged to have engaged in high-pressure sales tactics in the completion of a life insurance application. The plaintiff also alleged that she contacted our client to cancel the application the next day. The plaintiff argued that she believed the policy was cancelled; but it was not, and the carrier debited premium payments from her account for nearly six years without her knowledge. This matter was assigned to us the evening before the scheduled morning arbitration. As such, no discovery was conducted on behalf of the client, and we never saw the plaintiff’s pre-hearing production until the arbitration commenced. Despite these obstacles, Joel was able to obtain a defense award.

In an excessive force case before a jury in the U.S. District Court for the Eastern District of Pennsylvania, Christopher Boyle (King of Prussia, PA) obtained a defense verdict for our client, a local police officer. Chris and his team managed to obtain a bifurcated trial, keeping out the plaintiff’s damages claims, and the plaintiff never made it past the liability phase. The jury agreed that it would have been unlikely, if not impossible, for our officer, armed with an assault rifle, to pick up and assault the plaintiff in the manner he described. The jury was out for less than an hour, including lunch.

In another matter handled by Christopher Boyle, he obtained the dismissal of our clients—a township, two police detectives, a fire chief and a fire marshal—on a motion to dismiss in federal court. The case involved a fire in the childhood home of the plaintiff. Her mother had just sold the home, apparently to the plaintiff’s dismay, and the plaintiff was the last one seen in the room where the fire started. She was charged with arson and related offenses. Investigation of the scene revealed that the fire had been set by human hands, but the plaintiff was successful in obtaining an acquittal in state criminal court, arguing through the use of a nationally-renowned expert that electricians working in the home had sparked the blaze. In the federal action, the court agreed with us that the plaintiff had failed to establish a seizure as a matter of law, because she was never handcuffed or imprisoned, never had onerous travel restrictions placed on her, was subject to non-monetary bail conditions otherwise, and was essentially, “arrested by appointment.”

David Henry (Orlando, FL) prevailed in a case where the claimant contended he was discriminated against on the basis of marital status. The employee was a custodian’s assistant for our client, a church, and was living with an unmarried woman. The church contended this was a violation of their scriptural doctrine and terminated his employment. The claimant alleged his civil rights were violated and that he was discriminated against due to his living arrangements and marital status. The Florida Commission on Human Relations terminated the case and found no probable cause, holding that the church had a legitimate interest in enforcing its church doctrine. The claim was brought under state, federal and local law, which is significant because Orlando has its own civil rights ordinance.

Mark Kozlowski (Scranton, PA) obtained summary judgment in a civil rights case in the U.S. District Court for the Middle District of Pennsylvania. The plaintiff, the former Army JROTC instructor working in the school district, brought a civil rights action against the district after he was decertified by the Army JROTC Cadet Command and the district declined to renew his employment contract. The complaint alleged violations of Title VII of the Civil Rights Act, the Fifth and Fourteenth Amendments, and breach of contract. In ruling on a motion to dismiss, the court limited the action to breach of contract and Fourteenth Amendment procedure due process allegations. A motion for summary judgment was filed after discovery was completed. The court found that the evidence demonstrated that the process the plaintiff was afforded met constitutional requirements prior to his termination, i.e., notice, an explanation of the detrimental effect of decertification and an opportunity to explain his side. Accordingly, the court granted judgment in favor of the defendants. The court declined to exercise supplemental jurisdiction over the state law breach of contract claim and dismissed it without prejudice.

James McGovern (Pittsburgh, PA) won a victory before the FINRA. In a matter venued in Chicago, Jamey succeeded on a motion to dismiss based upon FINRA’s six-year eligibility rule. The investments at issue were made in 2004, but the claim was not filed for binding arbitration with FINRA until 2014. The applicable FINRA rule states that “[n]o claim shall be eligible for submission to arbitration...where six years have elapsed from the occurrence or event giving rise to the claim.” However, FINRA does not provide a specific definition of “the occurrence or event giving rise to the claim.” Investors’ attorneys always argue that this event is not the date of the investment but, rather, some subsequent occurrence that tolls the six-year period until such time as the investor realizes financial harm. Defense attorneys argue that six-year period is triggered from the date of the investment. In this case, the panel of three arbitrators unanimously decided that the triggering event was the date of purchase and dismissed the case with prejudice.

In an appeal before the Third Circuit Court of Appeals, Kim Boyer-Cohen (Philadelphia, PA), Tom Specht (Scranton, PA) and Sharon O’Donnell (Harrisburg, PA) won a victory over a former school teacher who appealed a summary judgment ruling in favor of the school district. The teacher was fired for performance reasons but claimed she was fired in violation of the First Amendment’s protection over free speech when she unwittingly allowed crude, profane and despicable comments she blogged about her students and colleagues to leak into the public realm. The Third Circuit affirmed the trial court’s ruling that her speech wasn’t protected, leaving no genuine issue of fact for deliberation by a jury.

In this environmental and toxic tort action, Lila Wynne and Kevin Bright (Cherry Hill, NJ) prevailed on an appeal before the New Jersey Supreme Court. Lila and Kevin represented the prior owner of a property where it was discovered that an underground storage tank had leaked and contaminated the soil and underground water of two adjacent properties. The plaintiffs sued for strict liability under the Spill Compensation and Control Act, the abnormally dangerous activities doctrine, negligence, trespass and nuisance. The plaintiffs sought damages for diminution in property value, bodily injury and emotional distress. Lila and Kevin obtained summary judgment at the trial court level, and the plaintiffs appealed. The trial court’s decision was upheld by the Appellate Division. On appeal to the New Jersey Supreme Court, the plaintiffs argued that the trial court erred in dismissing the nuisance and trespass claims on the basis that the plaintiffs were not required to show that the defendant was negligent in any way if the claim is based on a continuing nuisance/trespass. The New Jersey Supreme Court disagreed with the plaintiffs’ position, holding that, where the underlying intrusion was unintentional, the standard for nuisance and trespass requires the plaintiffs to show that the defendant’s actions were negligent, at a minimum.

In a breach of contract claim, Trish Monahan (Pittsburgh, PA) obtained a defense verdict for her insurance carrier client in a jury trial. The plaintiffs alleged that our client had denied their property damage claim in bad faith. The bad faith claim was dismissed on summary judgment, and the contract and UTPCPL claims went to trial. A UTPCPL claim was dismissed during trial. The plaintiffs sought approximately $76,000 in damages to their rental property caused by their tenant having a dog, a violation of their lease agreement. The male dog had obviously soiled the carpets and caused other damage by lifting its leg. However, it was established during litigation that the plaintiffs knew the tenants had a Doberman Pincher in the house and did nothing about it. Our client denied the claim because of its policy exclusion, within the plaintiffs’ all-risk policy, for damages caused by a domestic animal. It also based its denial upon the policy exclusion for wear, tear and marring. The plaintiffs’ damages claim included replacing hardwood floors throughout the two-bedroom house, replacing carpeting and drywall, and biowashing and painting the entire house. However, the plaintiffs were able to subsequently rent the house after simply painting and replacing the carpeting. During trial, the plaintiffs expanded their claim to include basement flooding and destruction of bathroom fixtures in order to bolster their claim for vandalism, and in an attempt to avoid the policy exclusions. The jury was instructed that direct physical loss must be one resulting immediately and proximately from an occurrence. The jury found that the plaintiffs had not met their burden of proving direct physical loss, thus, it never got to the questions of whether our insurance carrier client had proved the applicability of the policy exclusions for damages caused by a domestic animal and wear, tear and marring.

Gary Kaplan and Art Aranilla (Wilmington, DE) obtained a motion for judgment on the pleadings before the U.S. District Court for the District of Delaware. In this alleged prison abuse matter, there were over 600 claims raised by 22 plaintiffs against 11 different defendants. Gary and Art represented two of them, a mental health service entity and its employee. The theories of liability against the defendants were numerous, arising under both federal and state law, including negligence, assault and battery, medical malpractice, deliberate indifference to serious medical needs, and civil rights conspiracy. Of the defendants’ preliminary dispositive motions, Gary and Art’s motion was the only one granted entirely. Gary and Art successfully showed that the plaintiffs had failed to state First Amendment retaliation claims or claims of intentional/negligent infliction of emotional distress. Notably, Chief Judge Stark’s opinion incorporated the arguments in Gary’s and Art’s briefing, and dismissed their clients entirely from the matter.

In a breach of contract/Fourteenth Amendment Equal Protection matter, Art Aranilla (Wilmington, DE) obtained summary judgment for claims against four of five insureds and won the trial on issues against the remaining insured. The plaintiff alleged, among other things, that the remaining insured, the maintenance company for her 55+ community, routinely refused to cut her grass, trim her hedges and provide treatments for her lawn, as required. At trial, Art successfully showed that the plaintiff had chased the law care service personnel off her property when they came to provide services, that the maintenance company did as much as they could to provide services, and that the declaration and plan for the community prohibited the plaintiff’s counterclaims for the maintenance fees.

Tom Walsh (Wilmington, DE) prevailed on a motion to dismiss before the Bankruptcy Court for the District of New Jersey. Our client was the loaner bank in an adversary proceeding wherein the plaintiff, as co-signer of pre-petition loans, asserted allegations of fraud in the inducement and equitable fraud against the debtor, the borrower, and the bank. Pre-petition, the plaintiff had filed a civil action in New Jersey Superior Court against the soon-to-be debtor and borrower. The state court action was subject to an automatic stay in accordance with Section 362 of the Bankruptcy Code. Post-petition, the plaintiff filed an adversary proceeding, claiming that the debtor and borrower duped him into believing that a second loan was merely a re-application for the first loan. The plaintiff further claimed that the bank committed fraud by way of material omissions in not providing the plaintiff with notice that the first loan had been disbursed. The plaintiff sought compensatory damages, as well as equitable relief via reformation to be removed as co-signer. Tom filed a motion and supporting brief to dismiss the claims for lack of subject matter jurisdiction, setting forth the two-prong analysis of the Bankruptcy Court’s jurisdictional limitations and emphasizing the plaintiff’s failure to meet his burden to invoke the court’s jurisdiction under the “well-pleaded complaint” rule. At oral argument, the Bankruptcy Court agreed that the adversary proceeding did not meet the first three “core proceeding” categories of 28 U.S.C. §1334 as it did not “arise under” or “arising in” a case under Title 11. Tom successfully argued that, as to relief sought against the bank, the claims were not “non-core” under 28 U.S.C. §157 because they failed to meet “related to” jurisdiction, which requires that the relief sought, if granted, could have any conceivable effect upon the debtor’s administration or implementation of the Plan of Reorganization. The court agreed that grant of relief as against the bank could have a conceivable effort upon the debtor, thus warranting dismissal.

Workers’ Compensation

Michele Punturi (Philadelphia, PA) received a favorable decision in the employer’s termination petition, modification/suspension and the claimant’s review petition. Significant to this decision was the Workers’ Compensation Judge’s finding that the testimony of our expert, a board certified orthopedic surgeon, was completely credible. The doctor had the opportunity to examine the claimant five times and to review all of the medical records and diagnostic study films. In particular, he noted that he reviewed studies that pre-dated and post-dated the work injury which showed extensive evidence of degenerative disc disease and degenerative changes. Further, the judge highlighted the cross-examination we presented of the plaintiff’s expert, finding him to not be credible. The judge terminated the claimant’s benefits and denied the claimant’s review petition to expand the nature of injury.

*Prior Results Do Not Guarantee a Similar Outcome

Defense Digest, Vol 21, No. 4, December 2015

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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