Amicus Curiae Briefs
The day-to-day work of the Appellate Advocacy and Post-Trial Practice Group consists of handling important pre-trial and trial motions, monitoring trials with possible high exposures, consulting with trial lawyers inside and outside the firm, and handling cases throughout the post-trial and appellate processes.
In addition to these functions, this practice group serves the important role of preparing amicus curiae (friend of the court) briefs on behalf of clients and other interested parties in cases of special concern to our clients and their industries.
Our law firm is exclusively a civil defense litigation law firm. As such, we focus on providing strong defense advocacy on matters entrusted to us and in advancing arguments of law and public policy consistent with the nature of our practice and the interests of the defense community as a whole. As a result, among our regular activities is the preparation of amicus curiae briefs that attempt to focus appellate courts on the policy ramifications of potential outcomes. Recent examples of cases in which we’ve filed amicus curiae briefs are:
- In Nertavich v. PPL Electric Utilities, the Pennsylvania Supreme Court unanimously upheld the reversal of a multimillion dollar verdict against an electric company on the basis that the plaintiff had not satisfied the "retained control" exception to the general rule of non-liability for independent contractors.
- In Seebold v. Prison Health Services., Inc., the Pennsylvania Supreme Court reversed the Pennsylvania Superior Court and held that a physician has no duty to warn and advise a third-party non-patient of a patient's communicable disease.
- In Condio v. Erie Insurance Exchange, our brief was extensively quoted by the Pennsylvania Superior Court in dealing with the fundamental issue of whether underlying claims for UM or UIM benefits were adversarial in nature such that the insurer is able to defend the claim where there are reasonable bases to do so.
- In Lane Enterprises, Inc. v. W.C.A.B. (Patton), we argued that, in calculating the claimant's pre-injury average weekly wage under the Pennsylvania Workers' Compensation Act, an annual bonus should be pro rated. This position was accepted by the court. The claimant's attorney had argued that the bonus—paid in the last quarter of the year—should be considered as income earned during that particular quarter, which had the impact of substantially inflating the claimant's pre-injury average weekly wage.
- In Kuney v. PMA Insurance Company, the Pennsylvania Supreme Court held, consistent with our argument, that the exclusivity provisions of the Pennsylvania workers' compensation law prohibit a tort action against the insurance carrier for damages caused by the insurer's allegedly intentional mishandling of the injured employee's compensation claim.
- In Hollock v. Erie Insurance Exchange, it was asserted that Erie Insurance Company's handling of an underlying UIM claim amounted to bad faith. The trial judge found that bad faith existed and entered an order for $3.5 million in punitive damages. In our brief, we asserted that the trial court had erred in considering the insurer's conduct that had occurred after the underlying UIM claim was over. We also argued that the amount of the award was unconstitutionally excessive. Unfortunately, after having accepted the appeal from the Superior Court, the Pennsylvania Supreme Court entered an order indicating that the appeal had been "Improvidently Granted."
- In Smith v. Philadelphia, the Pennsylvania Supreme Court, again consistent with our amicus curiae brief written on behalf of the Pennsylvania Defense Institute, upheld the constitutionality of the damages limitation of the Political Subdivision Tort Claims Act, which states, "Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $500,000 in the aggregate."
- In Glenbrook Leasing Company v. Beausang, the Pennsylvania Supreme Court accepted the position advanced in our brief and rejected the adoption of the Continuous Representation Rule. This particular Rule applies to calculation of the statute of limitations pertaining to legal malpractice claims and sets the tolling of the statute of limitations from the time the attorney-client relationship has been terminated. This line of judicial reasoning has been accepted in other jurisdictions.
- In Ferencz v. Milie, the issue at play was whether expert testimony of the lawyer-expert should be permitted in the trial of a legal malpractice case to establish what would have occurred had an underlying case been tried to verdict, or to establish the settlement value of an underlying action. The Pennsylvania Supreme Court remanded this matter to the trial court to address the sufficiency of the available evidence of legal malpractice setting aside consideration of such expert testimony, the position we advocated. By virtue of that ruling, the Court elected not to address the second issue of whether a lawyer-expert should be permitted to testify to the settlement value of an underlying action.
- In Nationwide v. Fleming, the amicus curiae brief we submitted to the Pennsylvania Supreme Court advanced the argument that attorney-client privilege extends to both the attorney's confidential advice given a client as well as confidential information given by the client to the attorney.
