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What's Hot in Workers' Comp

Delaware Superior Court reverses Industrial Accident Board decision, holding the Board erred as a matter of law and abused its discretion when it awarded compensation to a claimant whose intoxication proximately caused a motor vehicle accident.

United Parcel Service v. Willis, 2024 WL 5039034 (Del. Super. Ct. Dec. 6, 2024)

January 1, 2025

by Benjamin K. Durstein

On June 8, 2021, at approximately 4 a.m., Mr. Willis was involved in single-vehicle accident when his work truck struck a guardrail. The accident occurred in Maryland, although he had left Delaware and had been driving for a while at the time it happened. 

Police officers found the claimant wedged between the driver and passenger seats of his semi-truck. He needed assistance getting out. When approaching the truck, the officers witnessed the claimant throw three cans of light beer out the truck window, two of which were empty and one was one quarter full. They were cool to the touch. There was an unopened can of beer in a cooler in the cab. The claimant had defecated on himself, and he could not remember how he got in the accident when he spoke to the officers. 

He later told the medical providers he had swerved to avoid a deer. The claimant admitted he had consumed three light beers while in the truck. He reported that he usually packs a cooler to celebrate the end of his shift and drinks the beers on the way home, after finishing his work. On this day, he started drinking beer early. 

The claimant refused to undergo a field sobriety test and was arrested on suspicion of DUI. He pled “not guilty, agree statement of facts” and was sentenced to probation before judgment. There was an audio recording of the conversation between the claimant, counsel and the judge when he entered the plea deal. 

The claimant filed a Petition to Determine Compensation Due alleging the motor vehicle accident was a compensable work accident. At the hearing, the employer argued Mr. Willis was not within the course and scope of his employment because he violated the employer’s drug alcohol policy, which said one cannot drink at work. The employer also claimed Mr. Willis forfeited his right to benefits based on Section 2353(b) because the injury was due to his intoxication and/or reckless indifference to danger. 

Part of the evidence presented at the hearing was the entirety of the police body camera footage, which was over 90 minutes long; however, there were audio issues that cut the sound out for portions of the footage. The employer wanted to also admit the audio recording of the criminal plea hearing, but this was denied based on a hearsay objection. The employer wanted to admit results from a breathalyzer test taken hours after the accident, which were signed by both an alcohol technician and the claimant. However, the Industrial Accident Board excluded the breathalyzer test results because they were not properly authenticated by a witness to explain what the test is, how it is performed and what the results mean—despite the toxicology.

After consideration of the evidence, the Board granted the claimant’s petition in part and reject the employer’s course and scope and forfeiture arguments. 

The Board cited Larson’s treatise for the proposition that violating the employer’s drug alcohol policy did not take the accident outside the course and scope of employer. 

Next, the Board held the employer failed to meet its burden to prove the claimant was intoxicated or that the intoxication was the proximate cause of the accident. The Board reasoned the brand of light beer consumed by the claimant had a low alcohol content, no one saw the claimant drink the beers and the drive was two hours long. Therefore, the Board was unable to determine when Mr. Willis drank the beers and over how long a duration. No expert linked alcohol consumption to an inability to function. The police body camera footage did not correlate with the officers’ testimony about apparent intoxication. The employer’s own witnesses testified about the difficulty of driving the truck, and the claimant was driving for some time when the accident occurred, which, according to the Board, was evidence he was not intoxicated. 

The Board similarly held the employer did not carry its burden to prove the claimant’s reckless indifference to danger.

The employer appealed this decision to the Delaware Superior Court and advanced multiple arguments. The court first held the Board did not abuse its discretion when it excluded the breathalyzer test results and the related testimony regarding the toxicology report from evidence because there was no witness presented to authenticate the evidence. The court further reasoned someone needed to testify that the alcohol technician followed standard procedures in administering the test in order to establish the evidentiary foundation for admissibility. The court did note, if admitted, the test results from several hours after the accident would show BACs of .19 and .181—more than twice Delaware’s legal limit.

However, the court next held the Board abused its discretion by refusing to allow cross-examination of Mr. Willis by using an audio recording of prior statements he made during the Maryland proceeding. The court explained the Board’s decision to sustain the claimant’s hearsay objection was incorrect as Mr. Willis’ own statements, as an opposing party, are not hearsay. The court emphasized the significant probative value of the evidence as it pertained to issues such as the claimant’s physical state, level of intoxication and causation—whether he said anything about a deer causing him to swerve. 

Next, the court held the Board erred as a matter of law in finding that Mr. Willis was acting within the course and scope of his employment. A deviation from company policy does not remove an employee from the course and scope on its own, but the Board had taken that general rule and expanded it too far in this situation. The court cited the Larson’s workers’ compensation treatise to emphasize that voluntary intoxication that renders an employee incapable of performing work is a departure from the course of employment. Mr. Willis’ conduct was not just a violation of the employer’s drug and alcohol policy, it was manifestly unreasonable and unexpected for him to drink and drive while operating a semi-truck on a public highway. The court held this constituted reckless indifference to danger and was the epitome of the “I don’t care attitude” that is part and parcel of that analysis.

The court next addressed the section 2353(b) forfeiture contentions of reckless indifference, including the requirement that the injury was proximately caused by the intoxication. The court explained, the burden of proof for this forfeiture is a preponderance of the evidence, and the Board held the employer to a higher burden of proof when it required the employer to “clearly establish that actual intoxication caused the accident.” This was an error of law.

The court next held that substantial evidence established the employer proved both intoxication and that Mr. Willis acted deliberately and recklessly. The court described “overwhelming evidence” to support the fact that the claimant’s intoxication and reckless indifference to danger proximately caused the accident. 

The Board had already rejected the argument that a concussion accounted for Mr. Willis’ presentation in proceedings below, and that intoxication was the best explanation for the lack of use of Mr. Willis’ physical and mental faculties. The court criticized the Board’s decision to speculate about light beer’s impact on intoxication. The Board disregarded trained police officers’ account of their first-hand experience with the claimant and, instead, relied upon their own view of the video with incomplete audio. The court held there was an abuse of discretion because a reasonable mind would not have concluded that Mr. Willis was sober at the time of the accident or that his conduct was not recklessly indifferent.

Lastly, the court held the Board abused its discretion by applying the wrong causation standard and inserting its own speculative theory regarding the cause of the crash. The Board had reasoned that if Mr. Willis swerved the truck to avoid hitting deer, it would have resulted in an accident regardless of intoxication. This was the wrong analysis because (1) it implicitly required intoxication to be the exclusive cause rather than the proximate cause and (2) the factual speculation did not outweigh substantial evidence to the contrary in the record. 

Ultimately, the court determined the Board’s decision exceeded the bounds of reason in view of the circumstances. The Board erroneously relied on its own speculation instead of the substantial evidence in the record. It applied the wrong burden of proof. It abused its discretion by finding that no causation was established. According to the court, the Board’s decision would set a dangerous precedent, that employees can get away with driving impaired on the job—”as long as it’s light beer”—despite overwhelming evidence to the contrary. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 2025 is prepared by Marshall Dennehey 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.