Thought Leadership

CASUALTY DEPARTMENT
Ian Antonoff (New York, NY) obtained summary judgment and dismissal of a third-party action related to a construction site accident in New Jersey. The plaintiff, a temporary employee, alleged he was injured during demolition of an existing commercial space when he was electrocuted by a “hot” wire. The third-party defendant was a staffing company that supplied the plaintiff as a temporary worker to the job site. Once on site, the plaintiff was fully supervised by the third-party plaintiff, the construction manager. The plaintiff applied for, and received, workers’ compensation benefits following his accident. Common law claims against the staffing company (the employer) were barred under the workers’ compensation statute. While there was a purchase order between the construction manager and the staffing company requiring contractual indemnification, this document was not executed until close to a month after the date of the plaintiff’s accident. Additionally, the parties agreed in the purchase order that New York law applied to its terms and, therefore, the construction manager could not be indemnified for its own negligence under New York General Obligations Law Section 5-322.1.

Jason Banonis (Allentown, PA) obtained a unanimous defense verdict in a civil jury trial in Northampton County, Pennsylvania, under COVID restrictions. In this premises liability case, the plaintiff claimed he had slipped on snow and ice on a sidewalk and suffered a comminuted tri-malleolar fracture, requiring two surgeries. The demand was $130K, and Jason’s best offer was $75K. At trial, Jason demonstrated that the plaintiff failed to establish that the accident occurred on the property our client maintained as power-of-attorney or that our client breached any limited duty owed to a licensee. The socially-distanced jury returned its verdict in favor of the defense in one hour.

Carolyn Bogart (Mount Laurel, NJ) was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest at a party giving rise to the plaintiff’s claims. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep at the dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle home, unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when the plaintiff left. In addition to naming all attendees and fellow brothers in his fraternity, he also sued the university and its employees. In 2016, suit was filed and, after over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the Superior Court’s underlying decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally but who, nonetheless, drank to excess and injures himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. The appellate panel ruled that the Social Host Liability Act did not apply as it governs liability for third-party injuries resulting from the service of alcohol to an of-age adult.

Kathleen Carlson (Jacksonville, FL) obtained summary judgment for her retail client. The plaintiff alleged an injury following a slip and fall on a clear liquid in the client’s store. The plaintiff claimed that our client was liable for her injuries based upon actual or constructive notice of the transitory substance on the floor. We filed a motion for summary judgement, arguing the plaintiff could not establish notice based on the testimony and physical evidence available. Following a contentious hearing, the court granted summary judgment in favor of our client.

John Carty (Philadelphia, PA) prevailed on preliminary objections to have a case transferred from Philadelphia County to its proper venue in Allegheny County. This Jones Act case involved a seaman who worked for the defendant, whose business is located in Allegheny County. The defendant’s business provides river towing services in the waterways in and around Allegheny County. The plaintiff was injured there and received his medical treatment there. The defendant provides no services in Philadelphia and does no business in Philadelphia. The only connection the defendant has to Philadelphia is that payments for life and dental insurance are sent to Philadelphia. The court found that the insurance payments were not sufficient to establish regular contacts with the county and transferred the case to Allegheny County.

Erica Goldring (Roseland, NJ) obtained summary judgment for a nationwide truck leasing company in a case pending in the Law Division of Somerset County, New Jersey. The plaintiff commenced this suit as the result of a motor vehicle accident with a leased truck driven by a party whom the plaintiff failed to successfully serve with the pleadings. After Erica defeated the plaintiff’s motion for substituted service on the driver via our client’s insurance carrier, she moved for summary judgment for the truck leasing company based on principles of agency. The court agreed that there was no agency relationship between the driver and our client, the truck leasing company, and dismissed the case as to all parties, with prejudice.

In a case pending in the Law Division of Morris County, Erica successfully barred all of the plaintiffs’ liability expert reports and testimony against our client, a septic installer, as sanctions for intentional spoliation of evidence in the case. The plaintiffs brought suit against our client for alleged negligent installation of a septic system they claimed caused them bodily injuries and economic damages. During the pendency of this litigation, and well into the discovery period, the plaintiffs and their experts performed extensive and invasive environmental testing on the property for longer than three months that was intentionally concealed from the defendants. Erica obtained this information through a third-party fact witness at deposition, who then provided Erica with a draft copy of the plaintiffs’ liability report that was supplied to him. That report detailed the many months of destructive testing the plaintiffs and their experts had performed. Erica then moved to bar all of the plaintiffs’ liability reports and testimony at the time of trial due to their egregious discovery violations. The court agreed and granted all requested relief.

Dan McDermott (Westchester, NY), Jay Hamad (New York, NY) and Christopher DiCicco (Mount Laurel, NJ) successfully obtained summary judgment dismissing all claims against our client in a marine construction, New York Labor Law case pending in Supreme Court Rockland County. The case involved bodily injuries sustained to an employee of our client, which was a sub-subcontractor at the site of the new Mario Cuomo Bridge. The property owner, general contractor, and the subcontractor each cross-claimed and/or third-partied our client into the case. They sought contractual and common law indemnity and contribution pursuant to the terms and conditions of the various contracts. We argued, and the court agreed, that since there was no finding of negligence against our client causing the injuries sustained by the plaintiff, the indemnification clauses were not implicated. The court found there was no evidence demonstrating that our client caused in whole or in part the injuries the plaintiff sustained.

Megan Nelson (Orlando, FL) prevailed on a motion for summary judgment related to the duty owed to a minor business invitee in an alleged wrongful death. The plaintiff, the personal representative of the estate of a minor, filed a wrongful death claim alleging the defendant, a daycare center, breached its duty to exercise the reasonable care owed to the minor while he was under the care and supervision of the defendant’s employees as a business invitee. The plaintiff alleged the defendant breached this duty by failing to render aid when the minor collapsed, including failing to train its employees and failing to notify emergency personnel in a timely manner. Megan successfully argued that the defendant did not breach its duty to exercise reasonable medical care as its employees were CPR certified and immediately responded when an employee witnessed the minor collapse. The mother of the minor arrived immediately after the collapse and held onto him until EMS arrived. The call to the EMS team was made within three minutes of the collapse. The employees reassessed the minor while he was in the mother’s arms and determined the minor was breathing. The minor was breathing until EMS arrived. The minor passed away of natural causes. After reviewing the defendant’s motion for summary judgment and hearing Megan’s argument, the judge granted the motion for summary judgment, and the case was dismissed.

Drew Thebaud (New York, NY) obtained dismissal of a premises liability claim with costs and disbursements. The plaintiff alleged that he tripped and fell on the exterior steps of a residential building in New York City due to poor staircase lighting. The plaintiff filed suit against numerous defendants, including our insured, a construction company responsible for installing the flooring within the building three years prior to the incident. Since the insured was not responsible to maintain the staircase’s lights at the building, Drew demanded that the plaintiff dismiss the insured from the case. When plaintiff’s counsel refused, Drew filed a motion to dismiss all claims asserted against the insured and sought costs for filing the motion. In response, the court granted the motion, dismissing the complaint in its entirety against the insured, and also awarded costs and disbursements for filing the motion.

HEALTH CARE DEPARTMENT
Michael Kelly (Long Island, NY) obtained dismissal of a medical malpractice/wrongful death action involving claims that the defendants failed to properly treat vascular compromise to the lower extremities, resulting in prolonged hospitalization during which pressure ulcers developed, progressed and became septic, causing death. Motions for summary judgment brought by five other defendants were granted. Although we had not moved for this relief, we were able to convince the court to “search the record” and dismiss the claims against our client hospital since it had no liability independent of the co-defendants.

Michael also obtained dismissal of claims in a negligence action in which our client’s EMTs “dropped” the plaintiff while transporting him to a rehab facility from a hospital after bilateral knee replacement surgery. The plaintiff was placed on a stretcher in his hospital room, but when the EMTs began lifting it to height, the plaintiff leaned over, causing it to tip over. Although an issue of fact existed as to the manner of the accident, we argued the injuries claimed (ruptured cecum, gall bladder removal and incisional hernia repair) could not have been proximately caused by the minor trauma of the stretcher tipping over. We supported our position with an affidavit from a colorectal surgeon, which the plaintiff opposed with one from a general practitioner. The court found the plaintiff’s opposition failed to raise an issue of fact and dismissed all claims against our client.

Missy Minehan (Harrisburg, PA) obtained summary judgment in a medical malpractice action in Dauphin County. This case was filed against a surgery center concerning the alleged failure to timely diagnose and treat squamous cell carcinoma in the patient’s nasal cavity.

PROFESSIONAL LIABILITY DEPARTMENT
Kevin Bright and Lila Wynne (Mount Laurel, NJ) secured dismissal of a case involving a claim of negligence that allegedly occurred in the process of a commercial fumigation for insects at a co-defendant’s property. Kevin and Lila sent a R. 1:4-8 letter to plaintiffs’ counsel, arguing the case should be dismissed because the plaintiffs would be unable to establish causation as a matter of law based on their discovery. Plaintiffs’ counsel agreed and dismissed the case with prejudice.

Tracy Burnley (Mount Laurel, NJ) argued and was granted summary judgment based on the contractual one-year statute of limitation. Our client, a home inspector, referred a matter out to an independent, separate home inspector. All of this information was disclosed in an email from our client to the plaintiff with an attached pre-inspection agreement. The plaintiff initially denied the existence of a contract. When that was proven to be false, he then argued the contract was between the plaintiff and the other inspector, and our client could not avail itself of the one-year limitation to sue. The court agreed with Tracy’s arguments that the e-mail and attached pre-inspection agreement must be construed as a whole and that our client was entitled to dismissal.

Adam Calvert (New York, NY) won an appeal before the Appellate Division, Second Department where he represented a mall owner. The plaintiff was a pedestrian who was struck by a car in the parking lot. She sued the mall, claiming the parking lot was negligently designed, which lead to the accident. The trial court granted summary judgment to the mall, saying there was no evidence that the parking lot was negligently designed or that the design lead to the accident. A unanimous appellate court affirmed.

Christopher Conrad (Harrisburg, PA) obtained a defense verdict following a non-jury trial. This case was brought under Pennsylvania’s Sunshine Act, which governs the meetings of Commonwealth public agencies, including school boards. The plaintiffs were residents of a Centre County school district, and they sued the school board and its board president, claiming they violated the Act in the manner by which they conducted public meetings. Specifically, the plaintiffs alleged the board failed to state with sufficient specificity during the open portion of its meetings the reasons why it was convening privately in executive session and because the board did not allow public comment at, or keep minutes of, its executive session meetings. After trial and post-trial briefing, the court found for the defendants, concluding the board complied with the Act as it routinely and appropriately announced, in general terms, when it was convening in executive session to discuss contract, personnel and non-litigation legal matters. Finally, the trial court found as matter of law that the board was not required to allow public comment at, or keep minutes of, its work sessions because the work sessions are non-voting meetings at which the board does not “deliberate” or take any “official action,” as those terms are specifically defined by the Act. Chris was assisted in this case by Lara Bream (Harrisburg, PA), who was instrumental in helping to narrow the claims for trial through her preparation of a motion for summary judgment and a motion in limine, both of which were granted in part by the trial judge.

Michael Detweiler (King of Prussia, PA) and Benjamin Levine (Philadelphia, PA) prevailed on a motion for summary judgment on behalf of a large city. The plaintiff presented significant personal injury and earnings loss claims predicated upon his claim of a brachial plexopathy injury, allegedly suffered as a result of a fall owing to jet fuel or a fuel-like substance. In addition to making premises liability arguments, Benjamin and Michael successfully argued that the plaintiff failed to establish the requisite elements required to prevail on the street exception to the Pennsylvania Political Subdivision Tort Claims Act. While the motion for summary judgment of the co-defendant airline was denied, all claims and cross-claims as to the city were dismissed.

Scott Dunlop and Morgan Randle (Pittsburgh, PA) successfully obtained dismissal, with prejudice, on behalf of a township and an individual township manager via a motion to dismiss plaintiff’s amended complaint. The plaintiff raised a single First Amendment count on the basis that the defendants allegedly retaliated against his exercise of his First Amendment right to petition by preemptively refusing to listen to him on the subject of traffic controls. More specifically, he had presented petitions, spoken publicly on the issue at township meetings, and sent the township commissioners packets of information requesting that the township reduce the speed limit and install speed bumps as a traffic regulation, claiming the traffic was too high. Despite addressing his concerns via a traffic study that revealed there was not unusually high traffic for the road, the plaintiff continued to petition the township. Given the evidence contrary to the plaintiff’s position, the township heard the plaintiff out and responded to the substance of his petitions, but ultimately did not agree with his concerns and did not implement his requests. The plaintiff alleged that he was “retaliated” against for expressing his concerns because he did not feel comfortable continuing to raise the issue at public meetings. The court agreed with our position that no retaliatory conduct occurred, thus precluding the First Amendment retaliation claim, and dismissed the defendants, with prejudice.

Ray Freudiger (Cincinnati, OH) won summary judgment for a housing authority in a political subdivision matter in the U.S. District Court, Southern District of Ohio, Western Division at Dayton. The plaintiff sought over $20 million in damages, alleging the housing authority violated the Fair Housing Act and the Americans with Disabilities Act by discriminatorily blocking funding for and financing of 60 units of project-based affordable housing for homeless veterans, most of whom are disabled. The court had previously awarded summary judgment to Ray’s client on all but one claim, but ruled that genuine issues of material fact precluded summary judgment on the plaintiff’s “reasonable accommodation” claim under the ADA and FHA. In an unusual turn of events, the court recently held that it had erred in not granting Ray’s previously filed summary judgment on all claims. It, therefore, dismissed all claims against the housing authority.

Howard Mankoff and Pauline Tutelo (Roseland, NJ) successfully moved on the pleadings, in lieu of an answer, to dismiss a complaint against our client, a law firm, that was sued for not filing a personal injury claim within the applicable statute of limitations. Our client sent the plaintiff a letter two months before the statute expired, explaining the firm declined to pursue the claim. The plaintiff claimed he did not receive the letter. The court accepted our argument that the plaintiff failed to rebut the presumption that a properly addressed letter was received by the addressee. The brief was written by Pauline Tutelo.

Howard Mankoff (Roseland) obtained several other wins recently. He successfully moved on the pleadings, in lieu of an answer, to dismiss a complaint against our client, a law firm, that was sued for malicious abuse of process and conspiracy. Our client represented a board of education that was sued by an assistant principal for employment discrimination. After the suit settled, the plaintiff sued our client and the board of education, claiming they conspired to falsely attack his professional credentials by filing a false claim with the State Department of Education. Howard successfully argued that the law does not permit a claim that an attorney conspired with his client.

Howard obtained summary judgment on behalf of a dentist who sold her practice in an employment and contract claim. The plaintiff, also a dentist, was employed by our client. He claimed his contract automatically renewed and that he was entitled to two years of pay. The plaintiff also claimed he was entitled to be compensated because our client allegedly prevented him from taking records of patients he was treating. The court accepted our argument that the plaintiff waived the extension of his contract and that the patient records belonged to the practice and the patients, not the plaintiff.

Dante Rohr (Mount Laurel, NJ) obtained summary judgment in a complex third-party coverage action. The declaratory judgment complaint was filed against the landlord that leased three quarries to the insured tenant. The landlord sued its tenant for breach of contract and environmental clean-up costs. The landlord sought coverage as an additional insured to the tenant’s CGL policy. The insurer denied coverage. The court granted Dante’s motion for summary judgment in favor of the insurer, agreeing that the counterclaims alleged intentional acts that were not occurrences as defined in the policy, nor did the claims fall within the personal or advertising coverage under the policy. The court further held that, even if coverage were found, it is limited to such damage or injury “caused in whole or in part by the insured’s acts or omissions or the acts or omissions of those acting on the insured’s behalf in the performance of its ongoing operations for the additional insureds.” In light of this clear language in the policy, it follows that coverage was denied because the counterclaims were based solely on the acts or omissions of the landlord, not on the acts or omissions of the tenant or those acting on its behalf. Lastly, the court agreed that there would be no coverage available to the landlord as exclusions apply.

Jack Slimm (Mount Laurel, NJ) obtained an order of dismissal in a multi-party toxic tort action. This claim was filed by a family who was exposed to mold during a design and reconstruction project. The court granted the motion, notwithstanding the fact that the plaintiffs alleged intentional tort claims, including fraud and misrepresentation.

Jack obtained an order of dismissal, with prejudice, in favor of a law firm that represented a bank in a complex, wrongful repossession, UCC, fraud and legal malpractice action in the Superior Court, Law Division, Ocean County, New Jersey.

WORKERS’ COMPENSATION DEPARTMENT
Ashley Eldridge (Philadelphia, PA) successfully defended a claim petition on behalf of a national communications carrier. The claimant was employed as a customer service representative who, as a result of the pandemic, transitioned to a work-from-home position. While carrying computers into his house, the claimant fell, sustaining a patellar tendon tear, PCL tear, meniscus tears and bone contusions. Arguing that the injuries were work-related, the claimant presented evidence from several orthopedic surgeons. Ashley was able to demonstrate that the injuries were neither work-related nor sustained in the course and scope of his employment. The judge accepted the defense evidence as credible and denied the claim petition in its entirety.

Bob Fitzgerald and Jeremy Zacharias (Mount Laurel, NJ) were successful before Judge Bradley W. Henson, Sr., J.W.C., who rendered a decision in favor of our insurance carrier client. The case involved a 2010 claim petition resulting from a knee injury sustained as a result of a work place accident at the employer’s restaurant. This claim was denied by our client as it did not provide workers’ compensation coverage on the date of loss. Prior to the date of loss, the employer retained a restaurant management company to handle all business-related issues for the restaurant, including obtaining workers’ compensation insurance coverage. However, the restaurant was not listed for coverage under the prior workers’ compensation policy. When the restaurant management company obtained a renewal policy through our client, that policy also failed to include the restaurant or its business address as a covered entity. Bob and Jeremy successfully argued the restaurant was never insured by our client since it was taken off of the policy prior to our client assuming coverage.

Michele Punturi (Philadelphia, PA) successfully prosecuted a termination petition on behalf of a well-known hospital and defended the claimant’s petition for review to expand the nature of the accepted injury. The injury was accepted as a right distal bicep strain, which included a partial tear that resulted in surgery. The claimant asserted the injury should be expanded to also include right carpal tunnel, right elbow sprain and trigger fingers. A detailed cross-examination of the claimant established the complaints referable to right carpal and trigger fingers began six months after the injury, which was corroborated by the claimant’s treating physician’s records. The IME expert, a board-certified orthopedic surgeon with specialized training in hand surgery, had the opportunity to perform a comprehensive physical examination and review the diagnostic studies, post- and pre-injury medical records, and the claimant’s family physician’s records. This review revealed non-work-related carpal tunnel risk factor conditions, including obesity, post-menopausal, non-insulin dependent diabetes and testing for hypothyroidism. It was further argued that the claimant’s medical expert did not have expertise in the surgery involved in the case and failed to review the claimant’s testimony and diagnostic films. Ultimately, the judge found the defense medical expert competent, credible and persuasive.

Michele successfully defended a claimant’s reinstatement petition on behalf of a multi-national car manufacturer. The claimant sustained a work injury on October 18, 2004, in the nature of bilateral strain/sprains, CMC osteoarthritis and bilateral DeQuervains, accepted through a Notice of Compensation Payable. Thereafter, the claimant received various periods of disability and periods of return to work for which benefits were suspended. The claimant’s benefits remained on suspension status as of March 31, 2011. On February 5, 2020, the claimant filed a reinstatement petition. Michele adamantly argued that the petition should be dismissed as the Statute of Repose bars entitlement to any benefits as the claimant had received in excess of 500 weeks of partial disability status (> 12.4 years) and had not filed the reinstatement petition within three years after the date of his most recent payment of benefits. The judge agreed that the petition was barred.

Kacey Wiedt (Harrisburg, PA) was successful in prosecuting a modification petition, changing the claimant’s indemnity benefits from temporary total to partial disability based upon a labor market survey. After showing that the injured worker had an earning power based upon the labor market survey, the judge modified the claimant’s future indemnity benefits, even though the claimant was unemployed due to the accepted work-related back injury. Kacey was also successful in defending the claimant’s review petition to expand the nature of his injury from the acknowledged injury of a lumbar sprain, even though claimant had a permanent spinal cord stimulator implant in his back.

Kacey also obtained a favorable decision from the Workers’ Compensation Appeal Board, reversing the underlying judge’s decision pertaining to the school district’s entitlement to a credit for wages paid to a school teacher pursuant to a collective bargaining agreement. The Board granted credits for wages received by the injured worker through the school district’s collective bargaining agreement, allowing offsets against the claimant’s future entitlement to wage loss benefits.

Judd Woytek (Allentown, PA) was successful in having a judge deny and dismiss a claim petition and grant our termination petition. In this matter, the claim was accepted as a medical-only for a low back strain. The claimant filed a claim petition seeking wage loss benefits after refusing a modified duty job offer by the employer. After obtaining an opinion of full recovery from our IME physician, Judd filed a termination petition. The judge denied the claim petition and granted our termination petition, finding that the employer had made a good faith offer of employment within the claimant’s restrictions that she refused to accept. Therefore, the claimant was not entitled to any wage loss benefits. The judge also found that the claimant had fully recovered as of the date of our IME and terminated benefits completely as of that date.

*Results do not guarantee a similar result. 

_{Defense Digest, Vol. 27, No. 3, June 2021 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. © 2021 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.}