Casualty Department

Ray Freudiger and Manuel Cardona (Cincinnati, OH) obtained a summary judgement for a general contractor. While working for his employer at a fracking site, the plaintiff was struck in the head by a hose that came off of an above-ground storage tank. He sustained serious and permanent injuries. The plaintiff claimed the general contractor was liable for his injuries because it actively participated on the work site and controlled the unsafe condition which caused his injuries. We moved for summary judgment, arguing that the general contractor relinquished complete control over the site to a sub-contractor and, thus, had no control over any unsafe condition which caused the plaintiff’s injuries. The trial court agreed and granted summary judgment in favor of our client.

Mark Wellman (New York, NY) was successful a case in which the plaintiff was injured while working on the roof of a Manhattan construction site. ​The case was venued in the Supreme Court, New York County, and the complaint alleged various New York Labor Law claims, including violations of Labor Law Sections 200, 240(1) and 241(6). Before our answer was served, we provided plaintiff’s counsel with construction documents and plans, showing the work performed by our client had nothing to do with the location of the accident. We also furnished a stipulation of discontinuance, with prejudice, for counsel to execute in order to avoid a motion to dismiss the claims with a request for sanctions. Within two weeks of providing the construction documents, the case was discontinued, with prejudice, against our client.

Matthew Gray (Melville, NY) successfully argued and obtained a full dismissal of an arbitration matter filed against a major insurance company. ​The plaintiff filed an arbitration matter claiming the insurer owed payment for unpaid medical bills. The plaintiff alleged the injuries arose from a motor vehicle accident on February 28, 2017, and sought payment for medical treatments provided to him in the amount of $92,043.28. The plaintiff’s position was that the entire amount was owed as our client had not reimbursed the medical provider for the services/surgery rendered. It was our client’s position that the treatment rendered was not medically necessary, and we had an independent medical peer review of the entire medical claims record to support that position. The arbitrator heard arguments, concluded that our argument was persuasive, and found in full favor of our client.

Leonard Leicht (Roseland, NJ) were successful in having a trial judge in Hudson County, New Jersey, reverse himself on a premises liability case and grant summary judgment to our client, a maintenance contractor. The plaintiff argued that our client contributed to a dangerous ice and snow condition on property adjacent to the area they were obligated to maintain per a contract with the landowner. The judge originally denied the motion, finding a “fact issue” existed, but reversed after we pointed out there was no proof of proximate cause or reliance, which are both necessary elements of the cause of action. We also successfully argued that the 20-day time limit for a motion for reconsideration did not apply to an interlocutory order.

Eric Reichenberger (Fort Lauderdale, FL) obtained a dismissal, with prejudice, of a cross-claim/judgment on the pleadings involving a cross-claim against our insured in a premises liability case. The plaintiff filed suit against our client, claiming she was leaving our client’s pizzeria with a pizza in hand in a shopping plaza, when she tripped over a parking stop in the parking lot, resulting in multiple broken bones. The landlord, named as a co-defendant, filed a cross-claim against our client for indemnification based on the lease agreement’s indemnification provision. We filed a motion to dismiss, with prejudice, and for judgment on the pleadings, arguing that (1) the plaintiff and the co-defendant both failed to state causes of action against our client; and (2) the cross-claim asserted by the landlord failed as a matter of law based upon the pleadings, the lease agreement and the law regarding indemnification provisions in Florida. The plaintiff dropped our client as a defendant before the hearing could take place. However, the landlord refused to drop the cross-claim. At the hearing on the motion, the court agreed with our client and granted dismissal, with prejudice, and judgment on the pleadings regarding the cross-claim.

Armand Della Porta (Wilmington, DE) defended our client, a homeowner, in a binding arbitration in a case in Delaware Superior Court, Kent County. ​Pursuant to the binding arbitration agreement, there was a high/low format with the high being $75,000 and the low being $2,500. The plaintiff was a mailman who claimed that he twisted his ankle on a paver stone in our client’s front yard after delivering the mail. The arbitrator found in our favor on the basis that the plaintiff had not proved there was a dangerous condition on our client’s property which caused his injury.

Professional Liability Department

Avery Sander (Jacksonville, FL) successfully argued a motion for summary judgment in Lake County, Florida. ​Our client was responsible for the design and construction of a 7,000-foot seawall on the lake of a large, residential development. The seawall was constructed, and final payment was made on March 6, 2008. The developer then halted site work due to the economic downturn. It resumed work in 2014 and finalized the development of a large, single-family neighborhood in 2016. Subsequently, allegations of numerous defects in construction and design led to a lawsuit by the homeowners association, which included claims against the developer and our client for defects throughout the length of the seawall. That complaint was filed on September 7, 2018. The developer then filed a cross-claim on June 24, 2019, also alleging counts against our client. We argued that both claims were time barred due to the 10-year statute of repose. The homeowners association argued that the statute did not begin to run until the entire development had been completed. The developer argued that there was a one-year extension in the statute for third-party claims. Avery distinguished both arguments and the case law upon which they were based. The court agreed, and summary judgment was entered in our client’s favor.

Art Aranilla (Wilmington, DE) argued via Zoom and prevailed on a contentious motion to dismiss in the Delaware Chancery Court. ​Art represented a property owners’ association of a Lewes, Delaware mixed-use, commercial/residential community. The president of the property owners’ association had made a proposal for increasing revenue, which the commercial owners considered a violation of the Declaration. The commercial owners sued the property owners’ association and its board for breach of fiduciary duty and breach of contract/declaration, requesting injunctive relief as well as a declaratory judgment that the proposal violated the Declaration. The court found that, although the Delaware Declaratory Judgment Act enables the courts to advance the stage at which a matter traditionally would have been justiciable, an actual or justiciable controversy concerning the proposal did not exist in this matter. The court found no actual breach and no basis for injunctive relief. The case was dismissed on all counts.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) successfully argued to the New Jersey Appellate Division in a case where the plaintiff, a new business, requested damages for future and probable profits. Jack and Jeremy successfully argued the alleged damages were too remote, contingent and speculative to meet the New Jersey standard for reasonable certainty. The Appellate Division agreed and held that applicable New Jersey law provides a defense in connection with claims asserted by start-up and fledgling companies for future lost profits. Simply put, prospective profits of a new business are too remote and speculative to meet the legal standard of reasonable certainty. Therefore, under the New Jersey New Business Rule, speculative damages will not provide a cause of action for loss of profits.

Patricia McDonagh and George Helfrich (Roseland, NJ) successfully persuaded the court to grant summary judgement on behalf of a major insurer on a complex coverage issue. This case concerned two Virginia personal automobile policies in regard to an automobile accident in New Jersey. The son of a divorced couple sought coverage for an accident he was involved in on a major thoroughfare in New Jersey. At the time of the accident, the son was operating a motor vehicle owned by another Virginia resident, and he had the reasonable expectation that he had permission to operate the vehicle. The accident was very serious, and he sought coverage under both of his parents’ policies. As to the mother’s policy, we convinced the court that the son was not an insured under her policy because he was not so designated on the policy’s declaration page, which is a specific condition of the policy pursuant to Virginia law. As to the father’s policy, once again, we convinced the court that the son was not an insured under this policy given the fact that the mother had sole and exclusive custody under the divorce agreement; thus, the son was not a resident relative of the father’s household. Therefore, neither policy provided coverage for the son, and our client was totally dismissed from the case.

Aaron Moore and Alesia Sulock (Philadelphia, PA) obtained dismissal of an accounting malpractice claim on preliminary objections in the Philadelphia Court of Common Pleas. The plaintiffs alleged that their accountant improperly prepared their tax returns—as married filing jointly—and failed to claim business losses, which resulted in an unexpected tax liability being owed. Although the plaintiffs attempted to rely on the discovery rule to toll the statute of limitations, Aaron and Alesia successfully argued that the plaintiffs were on notice of the alleged negligence by the time they received the prepared tax returns, and that their failure to investigate potential claims at that time was a failure to exercise due diligence as a matter of law. Moreover, Aaron and Alesia argued, because they were under a duty to investigate earlier, the plaintiffs could not successfully allege that they could not have known of their claims until they hired a tax attorney to investigate. Because the plaintiffs did not bring their negligence claim until more than two years after they received their prepared tax returns, their claims were barred by the statute of limitations.

Edwin Schwartz and Lara Bream (Harrisburg, PA) obtained an award of summary judgment in defense of a multi-million dollar legal malpractice action. ​The plaintiff claimed that the strategy considerations and litigation decisions implemented by the defendant law firm resulted in an adverse verdict in the underlying matter which, in turn, resulted in the the plaintiff losing its ownership rights in a profitable commercial property and the imposition of sanctions against the plaintiff. After successfully having several claims stricken at the preliminary objections stage, Lara and Ed were able to create a record under which the plaintiff did not (and could not) obtain an expert report in support of its claims against the law firm. The plaintiff’s asserted damage model was $27 million. After the entry of summary judgment in favor of the law firm, the only remaining claim in the action was the law firm’s counter-claim against the plaintiff for $667,000 for unpaid fees.

Mark Kozlowski (Scranton, NJ) successfully defended a civil rights appeal before the United States Court of Appeals for the Third Circuit. The plaintiff filed a federal civil rights complaint against a police sergeant and a local municipality following his arrest and release. The plaintiff was charged with the attempted murder of his wife, who later recanted her statement to police. After the plaintiff was released from custody, he filed suit, claiming that police failed to conduct an adequate criminal investigation into the charges against him. At the district court, it was found that probable cause existed based on information known to officers at the time of the plaintiff’s arrest. Therefore, our defense motion for summary judgment was granted. The plaintiff appealed to the United States Court of Appeals for the Third Circuit, claiming that the district court failed to weigh the evidence in the light most favorable to him and ignored relevant evidence. The Court of Appeals affirmed the district court’s decision finding probable cause.

Workers’ Compensation Department

Ashley Eldridge (Philadelphia, PA) obtained a defense verdict on behalf of a local theme park regarding claim and penalty petitions. ​The claimant alleged a work-related injury while working as a seasonal actor for the employer. Specifically at issue was a left shoulder injury, which, according to the claimant, resulted in a reverse left shoulder total replacement procedure. The injury was denied as compensable, and a claim petition and a penalty petition were filed for total disability. Ashley presented the testimony of a board-certified orthopedic surgeon on why the injury was age-related, along with fact witness testimony demonstrating how the claimant was not only fired for cause but, furthermore, could not be believed regarding her alleged version of events. After the claimant backed out of a settlement, the parties took this matter to decision, which ultimately led to the judge denying both the claim and penalty petitions. No benefits or liability was assessed to the employer/carrier.

Ashley was also successful in defending a claim petition for an alleged spine injury on behalf of a construction company. The claimant was employed as a construction worker, and a week after being hired, he was allegedly injured while using a jackhammer. He filed a claim petition for multilevel disc injuries in the lumbar spine. Ashley presented the medical testimony of an orthopedic expert who explained how the injury was soft tissue in nature and had resolved as of an independent medical examination. While there were significant, multilevel disc bulges and herniations, the judge agreed that these findings were degenerative rather than acute. This conclusion was further supported by an ongoing factual investigation that uncovered 17 prior low back injuries, the majority of which were denied by the claimant. Ultimately, the judge accepted the defense’s evidence over that of the claimant and granted the full relief requested by the employer.

Tony Natale (Philadelphia, PA) effectively handled a number of recent cases. In the first matter, the claimant-widower filed a claim on behalf of his deceased wife, alleging she contracted COVID-19 while working as a caretaker for a sick client. Tony argued that the correct employer for workers’ compensation purposes was the claimant’s client, not the named employer. The Workers’ Compensation Judge agreed and dismissed the named employer and insurer as party defendants.

Tony also defended a Philadelphia-based university in litigation surrounding both a claim petition and a reinstatement petition. The claimant sustained a non-disabling injury in the form of right thumb CMC joint arthritis from her repetitive job duties. After several years of employment, she alleged that her work injury forced her out of the labor market, and she requested disability benefits. The Workers’ Compensation Judge disagreed that the claimant suffered a work-related disability of any kind. A big part of the rationale for this determination was Tony’s cross examination of the claimant’s medical expert, which exposed that the claimant’s disability may have been due to a variety of non-work-related conditions to the left hand and upper extremity.

Tony successfully defended a Delaware County machine shop before the Workers’ Compensation Appeal Board with reference to the claimant’s appeal from a Workers’ Compensation Judge’s decision denying work-related disability arising from an alleged head injury and a full recovery conclusion of law. The claimant’s appeal was quashed due to its untimely filing. The Board also adjudged the appeal on the merits (which is unusual) and further found that the appeal lacked merit on all grounds.

John Swartz (Harrisburg, PA) successfully defended a claim petition for a left foot injury, alleged to be traumatic plantar fasciitis and aggravation of pre-existing plantar fasciitis and tendonitis. John was able to show that the claimant had longstanding left foot complaints, including a previous surgery. In addition, the claimant’s testimony was rejected by the judge because, when he initially testified, he misrepresented that he did not have a CDL license. After further discovery, John was able to obtain information that the claimant did have an active CDL license at the time he testified, had gotten a physical examination for this license and had obtained his license a month before he originally testified. The claimant’s credibility was also impeached in other parts of his testimony. He alleged a lack of funds for medical treatment when he, in fact, had medical insurance through his spouse and had just received a $10,000 stimulus unemployment check. The judge rejected the claimant’s testimony in its entirety for these reasons. The judge further rejected the claimant’s medical evidence from a podiatrist as opposed to our board certified orthopedic surgeon. The judge ultimately found that the claimant had suffered no traumatic injury and his complaints were due to his preexisting plantar fasciitis condition.

John also successfully defended another claim petition that was completely denied by the judge. The claimant alleged that he suffered low back and knee injuries from a specific work incident, but he did not report any knee injury until six weeks post injury. The employer accommodated the claimant’s work restrictions, but eventually he was discharged for making threats to the employer’s representatives. The claimant then filed a claim petition wherein he alleged his knee injury and the surgery he had for his knee were related to the initial injury, which was rejected by the judge since it had been established that there was no initial report to the employer of any type of knee injury from the work incident. In addition, medical evidence established that the claimant had previous knee complaints and symptoms and was also actively involved in coaching his son’s wrestling and baseball teams. Medical evidence from the defendant showed that the right knee condition was not related to the initial work injury; therefore, the claim petition was denied for any benefits whatsoever, even though he had an accepted low back injury.

Judd Woytek (Allentown, PA) was successful in receiving a decision denying a penalty petition. The claim had settled by compromise and release. The claimant had undergone three surgeries on her wrist while litigating her review petition to expand the accepted injury. As part of the compromise and release, the claimant agreed that the carrier would not be responsible for any medical bills related to her second and third wrist surgeries, and the carrier agreed to pay her $5,000 to cover her out-of-pocket expenses related to those surgeries. Her private health insurance carrier later retracted payments it had made for her follow-up care and physical therapy post-surgery. The claimant then filed a penalty petition against the workers’ compensation carrier when it refused to pay the bills. The judge denied and dismissed the penalty petition, finding that the claimant had negotiated away her right to seek payment from the carrier with regard to any bills related to the subsequent wrist surgeries, as she had accepted $5,000 in exchange and was bound by the compromise and release.

Judd was also successful in receiving a decision denying a widow’s claim for Federal Black Lung benefits. The deceased miner had worked in underground coal mining for 11 years. His lifetime claim for benefits was denied after numerous claim filings and appeals. The widow then sought survivor’s benefits based upon the opinion of her medical expert, who opined that the miner’s death was hastened by coal workers’ pneumoconiosis. The judge rejected the widow’s expert in favor of our expert, who testified the miner’s death was not caused or hastened by pneumoconiosis. The widow requested reconsideration and attempted to submit additional evidence (an additional medical report and 12 medical journal articles) that she had not submitted during the litigation of the claim. The judge again rejected the claim on reconsideration.

_{Defense Digest, Vol. 27, No. 2, March 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.}