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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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United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

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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. 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Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.