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Defense Digest

On the Pulse…Other Notable Achievements

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

MARSHALL DENNEHEY COMBINES FORCES WITH LITIGATION BOUTIQUE, DELANY LAW

On October 31, 2022, the firm joined forces with the attorneys and staff of the Philadelphia-based litigation boutique Delany Law. Helmed by veteran trial attorney Jack Delany, the union brings three shareholders, one special counsel, one associate, two paralegals, and an experienced group of support staff to our Philadelphia and Mount Laurel, New Jersey, offices. All of the attorneys will practice in the firm’s Casualty Department.

“We are delighted to welcome the attorneys and staff of Delaney Law to the firm,” said G. Mark Thompson, our president & CEO. “Given our complimentary practices and the fact that our lawyers have long known, liked and respected one another, we felt uniting under the Marshall Dennehey umbrella would make us both better. The pairing affords Marshall Dennehey exceptional trial talent and greater bench strength in Pennsylvania, New York and New Jersey, while providing the lawyers and clients of Delany Law the opportunity to capitalize on the resources and efficiencies that we can provide as one of the country’s largest defense litigation firms.”

Jack Delany, founding partner of Delany Law and a well-known defense trial attorney in the Philadelphia region, joins our Philadelphia office as a shareholder. Jack defends catastrophic, high-profile, high-exposure cases against some of the country’s most formidable plaintiff firms. He has taken more than 60 jury trials to conclusion, as well as hundreds of bench trials, arbitrations and mediations. He has represented many Fortune 500 companies directly and as insureds and has handled complex litigation matters at the federal and state levels, as well as in administrative agencies and alternate dispute resolution forums. Jack also serves as national coordinating counsel for several product manufacturers.

Andrew Campbell and Kristen Worley also join our Philadelphia office as shareholders. Andrew has more than 20 years of experience in civil litigation and insurance defense, with specific focus in the areas of construction, fire and product litigation. Kristen has two decades of litigation and trial experience, representing clients in Pennsylvania and New Jersey in matters involving product liability, personal injury and commercial auto litigation. Andy Ciganek will join the Philadelphia office as an associate. With a strong background in civil litigation, he has successfully handled personal injury, wrongful death, premises liability, aviation, maritime and class action lawsuits.

Lastly, Michael Logue joins us as special counsel in the Mount Laurel office. Mike is an accomplished personal injury trial attorney and has obtained successful outcomes in matters involving bodily injury, workers’ compensation and property damage claims.

Jack Delany commented on the merger. “After 33 great years of running my own firm, the time has come to join forces with a larger firm that can provide the same level of intelligent, innovative resources paired with the solid support that my clients and my employees deserve. That firm, our new home, is Marshall Dennehey, one of the finest legal defense firms in the business for decades. We are thrilled to join this truly amazing team. They have the integrity, the impeccable reputation and the progressive ideals that will move our practice into an exciting new phase of history.”

 

RECOGNITION

Six attorneys from our New York City, Westchester County and Long Island offices have been selected to the 2022 edition of New York Metro Super Lawyers magazine. A Thomson Reuters business, Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Each year, no more than five percent of the lawyers in a state are selected as Super Lawyers and no more than 2.5 percent are selected for Super Lawyer Rising Stars. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. A description of the selection methodology can be found at http://www.superlawyers.com/about/selection_process.html. 

2022 New York Metro Super Lawyers

  • Nicholas P. Chrysanthem, Professional Liability: Defense (NYC)
  • James P. Connors, Personal Injury General: Defense (Westchester)

2022 New York Metro Super Lawyer Rising Stars

  • Dean Aronin, Transportation/Maritime (NYC)
  • Adam C. Calvert, Personal Injury General: Defense (NYC)
  • Preston Holmes, Transportation/Maritime (Westchester County)
  • Robert Demeusy, Personal Injury – Products: Defense (Long Island)

 

SEMINARS

Robert Aldrich (Scranton, PA) presented “Hot Topics in Healthcare” at the PAHCM (Pennsylvania Association of Health Care Risk Management) Fall conference.

Kimberly Kanoff Berman (Fort Lauderdale, FL) moderated a panel titled “Brief Writing for the Third DCA” at the Florida Bar’s Appellate Practice’s Practicing Before the Florida Third District Court of Appeal 2022 CLE seminar.

Christopher Block (Roseland, NJ) presented “Mastering the Professional Malpractice Mediation” at the PLDF Annual Meeting in Chicago.

Josh Byrne (Philadelphia, PA) participated in the Dauphin County Bar Association’s Member Benefit Compliance Session. Josh co-presented the ethics portion titled “PBA Malpractice Avoidance.”

Samuel Cohen (Philadelphia, PA) spoke on a panel at the Alternative & Direct Investment Securities Association (ADISA) trade conference in Las Vegas. The panel was titled “Hiring with Caution: How One Bad Apple Can Spoil Your Business.”

Christopher Conrad (Harrisburg, PA) co-presented “Special Education Litigation: Best Practices for Avoiding Liability, and Strategies for a Successful Defense” at the PLDF Annual Meeting in Chicago. Chris also presented “Safe Schools and Bullying” at the Pennsylvania Bar Institute’s Exceptional Children Conference.

Jonathon Cross (Philadelphia, PA) co-presented “Concussion in Sport - Causation and Risk Management in the Spotlight” at a recent Insurance Law Global webinar.

Brooks Foland (Harrisburg, PA) co-moderated the webinar “In the Zoom: Ins and Outs of Remote Mediation” for the Dauphin County Bar Association.

John Hare (Philadelphia, PA) spoke at the 2022 Convention of the Defense Research Institute. John addressed the history and notable decisions of the Pennsylvania Supreme Court. John also spoke at the 2022 Pennsylvania Governor’s Office of General Counsel University. The event is the yearly training program for attorneys in the executive branch of state government with more than 500 live attendees. John spoke at the invitation of the Pennsylvania Supreme Court and discussed the Court’s functions and notable decisions.

Mark Kozlowski (Scranton, PA) presented the webinar “Employment Law Basics – The Basis of OSHA, FLSA, ADA & More” for the Society for Human Resource Risk Management (SHRM).

Mary Kate McGrath and Adam J. Fulginitti (Philadelphia, PA) made a telehealth presentation for PAHCM (Pennsylvania Association of Health Care Risk Management).

Harold Moroknek (Westchester, NY) co-presented at the Auto Haulers Association Fall Expo in Orlando. The seminar was titled “Where Are You Leaking? Pain Points and Missteps: Things That Cost a Motor Carrier Unnecessary Defense and Indemnity Dollars.”

A.C. Nash (Fort Lauderdale, FL) presented “Talkin’ Bout My Generations” to the RIMS Broward County Chapter.

Tony Natale (Philadelphia, PA) and Robin Romano (Philadelphia, PA) were co-presenters at this year’s Philly I-Day conference. Their session, “Hot Topics in Worker’s Comp and Litigation Trends,” focused on trends and case law that are making waves in Pennsylvania workers’ compensation litigation, including unreasonable contest, discharge from employment issues within a workers’ compensation case, head injuries with post-concussion syndrome, and specific loss and extension to full body. Robin and Tony analyzed the impact of these cases on future similar litigation, and provided tips for mitigating exposures and liabilities from a risk management perspective. The presentation was attended by local insurance, claims and legal professionals.

Jeff Rapattoni (Mount Laurel, NJ) participated in various sessions at the International Association of Special Investigation Units conference. In “The Management of Brand Protection,” Jeff joined a panel that explored current risks in investigative insurance fraud while balancing the importance of protecting a company’s brand. The use of desk investigations, pass through claims, post-COVID major case and best practices were explored. Other topics included avoiding bad faith, proper statement techniques, and technology integration between claims and SIU. Jeff also co-presented “Legal Update: Emerging Legal and Legislative Trends in Fraud Fighting,” where a panel of legal experts involved in insurance fraud defense discussed current and emerging legal and legislative trends in the fight against fraud. Finally, he presented an Ethics session focused on investigator ethics, heard comments and critiques on current case law impacting the SIU and how it relates to the ethical investigation of insurance fraud moving forward.

Jeremy Zacharias (Mount Laurel, NJ) presented at an all-day CLE for the New Jersey State Bar Association titled “Commercial Real Estate Transactions: from Fist Bump to Closing.” Jeremy’s section related to ethical considerations pertaining to commercial real estate and the new age of cannabis litigation and the use of commercial space for cannabis dispensaries. Jeremy’s topic focused on the Rules of Professional Conduct and the various duties to disclose certain information during real estate transactions in a commercial setting and duties to third parties relying on an attorney’s advice. Additionally, Jeremy was a panelist at the Rutgers’

School of Law’s Professionalism Seminar, which is offered twice a year, and Jeremy is a recurring panelist to discuss the defense of ethics grievances and the RPCs in the state of New Jersey. The audience included first year law students learning about the Rules of Professional Conduct. The panel included a federal judge and an attorney from the

Public Defender’s Office. Jeremy discussed the importance of the Rules of Professional Conduct in daily practice and applications of the Rules of Professional Conduct in practical examples.

 

OTHER NEWS

Four attorneys from our Wilmington, Delaware, office have been selected 2022 “Top Lawyers” by Delaware Today magazine. The recognized attorneys are Bradley J. Goewert and Thomas J. Marcoz, Jr. for medical malpractice defense; and Benjamin K. Durstein and Keri L. Morris-Johnston for workers’ compensation employer defense.

 

PUBLISHED ARTICLES

Josh Byrne’s (Philadelphia, PA) article, “What to Think About When Deciding on Legal Malpractice Insurance,” was published by PLUS Blog on September 12, 2022. You can read the article here: https://plusblog.org/2022/09/12/what-to-think-about-when-deciding-on-legal-malpractice-insurance/.

Josh Byrne’s (Philadelphia, PA) article “Practical Considerations for Those Facing Suspension or Disbarment” was published in The Legal Intelligencer on October 3, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/03/practical-considerations-for-those-facing-suspension-or-disbarment/.

Josh Byrne (Philadelphia, PA) was quoted in The Legal Intelligencer article, “‘You Have to Battle When It Should Be a Walk in the Park’: Ethics Lawyers Say Attorney Discipline Has Gotten Tougher,” on September 1, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/09/01/you-have-to-battle-when-it-should-be-a-walk-in-the-park-ethics-lawyers-say-attorney-discipline-has-gotten-tougher/.

Matthew Keris (Scranton, PA) was quoted in the third quarter issue of Medical Liability magazine’s cover story, which explores the implications of artificial intelligence for MPL carriers and health care providers. You can read the article here: https://www.mplassociation.org/Web/Publications/Inside_Medical_Liability/Issues/2022/Q3/articles/AI_Offers_Opportunities_and_Risks_for_Providers.aspx.

Tony Natale (Philadelphia, PA) sat down with AM Best’s Insurance Law Podcast to discuss workers’ compensation fraud. Listen to the podcast here: https://lnkd.in/eTMvMkVe.

Alexander Possino’s (Pittsburgh, PA) article “Navigating Uncharted Territory: How to Avoid Danger Zones in the Evolving Landscape of Medicaid Liens” was published in the September 2022 edition of CLM Magazine. You can read the article here: https://736506f6.flowpaper.com/CLMSeptember2022/?utm_campaign=2210916_CLM%20Digital%20Edition%20Announcement%20922&utm_medium=email&utm_source=CLM&dm_i=37P3,1BDYC,2U2OSA,5514V,1#page=10.

Andrea Rock’s (Philadelphia, PA) article “When Filing a Petition Can Result in an Award of Attorney Fees” was published in The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/when-filing-a-petition-can-result-in-an-award-of-attorney-fees/.

Charlene Seibert’s (Pittsburgh, PA) article “The ‘Jaundiced Eye’ and the Fight to Prevent Inherent Speculation in Legal Malpractice Cases” was published by The Legal Intelligencer on October 6, 2022. You can read the article here: https://www.law.com/thelegalintelligencer/2022/10/06/the-jaundiced-eye-and-the-fight-to-prevent-inherent-speculation-in-legal-malpractice-cases/.

Robert Stanko’s and Andrew Goldstein’s (King of Prussia, PA) article “Increase in Crime Forces Local Businesses Into a Catch-22” was published in the October 29, 2022, issue of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/increase-crime-forces-local-businesses-catch-22.

 

Defense Digest, Vol. 28, No. 12, December 2022, 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

News

Ellen C. Bodenmiller Joins Marshall Dennehey’s Tampa Office as Special Counsel in the Casualty Department

Thought Leadership

Appellate Division Affirmed Trial Judge’s Orders Granting Summary Judgement for Defendants on COVID-19 Case

In Dunne v. Advanced Subacute Rehab Servs. at Sewell, LLC, et al., the plaintiffs appealed from two Law Division orders. By way of background, Louis Doto, Sr. (Doto) worked for BP & SC Services, Inc. (BP). BP leased Doto to Advanced Subacute Rehabilitation Center at Sewell, LLC (Advanced Subacute) and it had control of his work, paid wages, and had the power to hire or fire him. A BP employee was assigned to the facility to train and supervise him and BP was responsible for securing workers’ compensation coverage. Doto worked as an aide in the laundry department. Linen from COVID-19 residents were delivered in clearly marked bags and he had no direct contact with residents. A co-worker, Sheila Smith, was also an aide and she never contracted COVID-19 at the facility. Advanced Subacute did not require Doto to wear an N-95 mask, but instead a surgical mask, though N-95 masks were available to all employees. He was also required to attend period mandatory meetings with other high-risk employees, the last of which he attended was in November 2020. All employees were required to test for COVID-19 and there were no reported cases from June to October 2020. On December 23, 2020, Doto tested positive for COVID-19 and passed away on January 18, 2021. The last member of housekeeping that Doto may have encountered tested positive 22 days earlier. After his death, OSHA found two “serious” violations concerning the N-95 masks worn by housekeepers. In response, Advanced Subacute fit tested all non-clinical staff. Doto’s estate filed a workers’ compensation claim and named both BP and Advanced Subacute as his employer. The estate received an award. In July 2022, the plaintiffs filed a complaint in the Law Division, alleging wrongful death and survivor causes of action. In October 2024, the defendants moved for summary judgment, arguing: 1) immunity pursuant to the Emergency Health Powers Act: 2) the exclusive remedy provision of the Workers’ Compensation Act; 3) Doto’s inability to establish infection at the facility; 4) net expert opinions by the plaintiffs’ expert; and 5) inadmissibility of the OSHA report. The plaintiffs opposed and filed a cross-motion for summary judgment, arguing: 1) no immunity as Advanced Subacute engaged in gross negligent or willful misconduct; 2) no preclusion by the Workers’ Compensation Act as Doto was not Advanced Subacute’s employee; and 3) no net expert opinions. In February 2025, the judge issued a written decision granting the defendants’ motion. Specifically, he found Advanced Subacute’s COVID-19 immunity precluded the plaintiffs’ claim as no reasonable jury could find any gross negligence or utter disregard for Doto’s safety. He also addressed the other defenses for completeness. The plaintiffs moved for reconsideration and the judge issued another written decision denying the plaintiffs’ motion in April 2025. The plaintiffs then appealed both decision. The Appellate Division affirmed the orders for reasons stated by the judge in his written decisions. The Appellate Division only added: 1) Advanced Subacute acted consistently with the legislative grant of immunity; 2) there was no doubt Doto was an employee of both BP and Advanced Subacute and the latter may have inadvertently failed to follow some precautions; and 3) confirmed the plaintiffs’ experts did not identify a basis for their opinions. Ultimately, the Appellate Division found no reason to disturb the judge’s well-reasoned decisions and affirmed the judge’s orders.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Result

Federal Statute Declared Constitutional

In this products liability case, the Supreme Court of Pennsylvania reversed the Superior Court and upheld the constitutionality of the Protection of Lawful Commerce in Arms Act (PLCAA), which resulted in judgment as a matter of law for the defendant manufacturer.

Thought Leadership

Florida Supreme Court Adopts Traditionally More Expansive Concept of Occupational Causation

The Florida Supreme Court issued a significant decision rebuking the First District Court of Appeal (1st DCA) in the high-profile case of Bouayad v. Normandy Insurance Co., a case addressing the compensability of workplace injuries resulting from assaults by third-party tortfeasors. The Judge of Compensation Claims (JCC) found the claimant was entitled to workers' compensation benefits, relying in part on the Florida Supreme Court's earlier decision in Strother v. Morrison Cafeteria from 1980. In Strother, the Court upheld an award of benefits to a cashier who was assaulted and robbed by individuals who followed her home from work under the mistaken belief that she was carrying restaurant cash deposits. In Bouayad, the 1st DCA concluded that the claimant's injuries were not compensable because they did not arise out of his employment. The Florida Supreme Court disagreed, holding that the 1st DCA applied too narrow an interpretation of the "arising out of employment" requirement. In doing so, the Court reaffirmed a broader and more traditional view of occupational causation than that recently adopted by the 1st DCA. The claimant in Bouayad was the general manager of a car rental business operating from a hotel near an airport. Around midnight, while walking along a covered outdoor walkway from the hotel's atrium, where the rental kiosk was located, to an office near the pool, he was shot multiple times by an unidentified assailant. As part of his regular duties, the claimant carried rental agreements and cash receipts from the kiosk to the office at the end of each shift. After the shooting, the claimant managed to return to the hotel atrium, where he stated that he believed "Robert" had shot him, referring to an individual who had threatened the claimant's son the previous day. The assailant, however, was never identified. Consequently, the Supreme Court analyzed the case as involving an unknown third party while the claimant was acting within the course and scope of his employment. The central issue therefore was whether the injury "arose out of" the claimant’s employment. At the final hearing, the claimant presented evidence regarding the risks and hazards associated with his employment, including the nature of his duties, his late-night work schedule, and the location of the business in a high-turnover hotel near a major airport. His expert opined that these factors exposed him to an increased risk of becoming the victim of a crime while at work. In contrast, the employer/carrier's expert characterized the shooting as a targeted attack rather than a robbery and asserted that the risk of violent crime was actually higher near the claimant's residence than at the hotel. Based on that analysis, the expert concluded that the claimant was not exposed to an increased workplace risk. The 1st DCA focused narrowly on the specific activity the claimant was performing at the moment of injury. According to the court, the claimant's “work performed” at the time of the shooting was simply "walking" between two employer-operated locations, and that act of walking did not itself cause the injury. The Florida Supreme Court found this analysis far too myopic and inconsistent with decades of workers' compensation precedent. Reaffirming longstanding principles of workplace causation, the Court explained that the proper inquiry is not whether the precise physical task being performed at the moment of injury directly caused the harm. Rather, the relevant question is whether the employment, viewed as a whole, exposed the worker to risks and hazards that contributed to the injury. The decision is significant because it reinforces a broader conception of work-relatedness in the “arising out of” compensability analysis. Instead of limiting the causation analysis to the employee's discrete physical activity at the time of injury, courts must consider the totality of the employment circumstances, including the employee's duties, work environment, hours, and occupational risks. Under that framework, an injury may arise out of employment when the employment places the employee in a position of increased hazard, even if the specific task being performed at the moment of injury is not itself the direct cause of the harm.

Thought Leadership

Commonwealth Court Deemed Worker an Employee Despite Independent Contractor Agreement; Insurer Estopped from Denying Coverage

In this case, the claimant filed a Claim Petition for injuries sustained on October 28, 2019, naming J&S as his Employer, and alleging that the injuries occurred when he fell from a ladder while installing a satellite dish for Dish Network. Dish Network contracted with J&S to install satellite dishes. Subsequently J&S filed a Petition to Join Brickstreet Insurance Company and the claimant filed a Claim Petition against the Uninsured Employer Guaranty Fund. The Fund then joined Dish Network as another employer.  Before the Workers’ Compensation Judge (WCJ), the claimant testified that he was hired in 2015 by J&S and at the time signed an Independent Contractor Agreement (IC Agreement). J&S defended the case on the basis that the claimant was not an employee, but was an independent contractor, even after the IC Agreement expired. Additional evidence showed that, at the time of the October 28, 2019, work injury, J&S’ workers’ compensation insurance with Brickstreet had lapsed, even though a Brickstreet agent had been working to renew J&S’ policy and had a Certificate for coverage from September 25, 2019 to September 25, 2020 issued, with Dish Network listed as the Certificate Holder. A renewal policy was not in effect at the time the Certificate was issued and the agent learned on October 25, 2019 that Brickstreet was not going to renew their policy with J&S, due to an unpaid premium.    Ultimately, the WCJ found that the claimant was an employee of J&S at the time of the work injury and that J&S did not have a workers’ compensation policy in place at the time, due to their failure to pay the renewal premium to Brickstreet. The WCJ also found Dish Network was a Statutory Employer under Section 302(a) of the Act. The Claim Petition and the Guaranty Fund Claim Petition were both granted, as was the Guaranty Fund’s Petition to Join Dish Network. The WCJ also denied J&S’ Petition to Join Brickstreet, finding that neither J&S or Dish Network showed that Brickstreet was estopped from denying coverage. J&S and Dish Network appealed to the Workers’ Compensation Appeal Board (Board) and the Board affirmed. J&S and Dish Network appealed to the Commonwealth Court. The Commonwealth Court rejected J&S' argument that the claimant was an independent contractor. In doing so, the court noted that the claimant credibly testified that he worked for J&S full time, could not work for another company, and that J&S, scheduled his jobs, tracked him, and scheduled additional installations, if he finished early. Additionally, the court noted the claimant lacked discretion in the manner he performed his job, because all questions had to be referred to J&S.  As for Dish Network’s appeal, the court held that the WCJ erred in holding that Brickstreet was not estopped from denying coverage as to Dish Network. According to the court, the insurance agent was an authorized representative of Brickstreet and, at the direction of J&S, issued the Certificate of Insurance that he knew was not accurate at the time, and was aware would be presented as proof of coverage for J&S. Dish Network relied upon that information and continued to use J&S, ultimately leading to Dish Network being named as the Statutory Employer liable for payment of benefits because of J&S’ uninsured status. The court held that the Board erred in affirming the WCJ ’s conclusion that Dish Network did not establish that Brickstreet was equitably estopped from denying coverage, reversed the decision below, and remanded the case to the WCJ. 

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law.