Defense Digest - Volume 19 No 4 (December 2013) Mar 08 … Digest... · Vol. 19, No. 4 December 2013 PROFILE OF OUR BETHLEHEM, ... (SEC). We have also ... has been 12-2 since January

Vol. 19, No. 4 December 2013

PROFILE OF OUR BETHLEHEM, PENNSYLVANIA OFF ICE

By William Z. Scott, Jr., Esq.*

Founded in 1741, Bethlehem is a cityof nearly 72,000 people in eastern Penn-sylvania known for its rich colonial andindustrial history. Bethlehem sits at theheart of the Lehigh Valley and is approxi-mately equidistant from both Philadelphiaand New York. Once the home of the Beth-lehem Steel Corporation, the city is todayexperiencing an economic and culturalrenaissance with a very bright future.

Since its founding over two decades ago, the Bethlehem officeof Marshall Dennehey Warner Coleman & Goggin has effectivelyrepresented our clients in all of the surrounding counties, includingLehigh, Northampton, Monroe, Carbon, Schuylkill and Berks. Theattorneys in the Bethlehem office have extensive experience in thefederal courts of both the Eastern and Middle Districts of Pennsyl-vania. This office is a prime example of Marshall Dennehey’s com-mitment to providing client representation by local attorneys who areactively involved in the legal and civic communities.

The liability department of the Bethlehem office is headed byFrank Baker, who has over 35 years of experience litigating myriad,complex cases involving catastrophic injuries and death, as well asprofessional liability and construction matters. Working as a teamwith Frank are Brent Green, Paul Lees, Dave Williams and JasonBanonis. Brent and Paul concentrate their efforts in defending pro-fessional liability matters, including civil rights cases, cases involvingeducational institutions and the defense of other professionals suchas realtors. Dave and Jason concentrate on product liability, automo-bile liability, premises liability and other casualty cases. Together,these attorneys bring a wealth of experience in litigating both profes-sional liability and casualty cases throughout our regional area.

The Workers’ Compensation Department is headed by WilliamScott, who brings over 35 years of experience litigating workers’ com-pensation cases throughout northeastern Pennsylvania. Bill is joined

(continued on page 4)

* Bill is the managing shareholder of our Bethlehem, Pennsylvania, office. He can bereached at 484.895.2306 or [email protected].

* Andy and Joel work in our Philadelphia, Pennsylvania, office. Andy can be reached at 215.575.2679 or [email protected]. Joel, a shareholder, can be reached at215.575.2586 or [email protected].

On The Pulse…

OUR SECURITIES AND INVESTMENT PROFESSIONAL LIABILITY PRACTICE GROUP

By Andrew W. Davitt, Esq. and Joel Wertman, Esq.*

The Marshall Dennehey Securities andInvestment Professional Liability PracticeGroup is devoted to handling virtually all liti-gation-related issues facing securities andinvestment professionals. This group ser-vices a broad client base in representing theinterests of FINRA member broker dealers,Registered Representatives, certified finan-cial planners (CFP), Registered InvestmentAdvisors (RIA), insurance agents and insur-ance brokers. Our clients range from small“mom-and-pop” shops that service a smalllocal segment of public customers to largeinstitutional clients with international opera-tions and billions of dollars in assets undermanagement. In addition to professionalliability matters in state and federal court,we defend brokers and broker dealersbefore self-regulatory organizations (SRO)such as FINRA, state agencies (such as

state insurance and securities divisions) and before the Securitiesand Exchange Commission (SEC). We have also defended clients’interests on multiple occasions in adversary actions brought bybankruptcy trustees instituted in state and federal bankruptcycourts. We handle securities arbitration claims before FINRA, AAAand other SROs. On a regular basis we are called upon by ourclients to conduct investigations and seminars on timely businessand investment topics—usually topics of risk management and bestpractices. The group also counsels and represents brokers andfirms on employment issues and litigation.

The ever-expanding group has played a pivotal role in the overall expansion of the Professional Liability Department of Mar-shall Dennehey over the last two decades. The group’s humble rootstrace back to 1992, when Andy Davitt joined Marshall Dennehey.


William Z. Scott, Jr. Andrew W. Davitt

Marshall DenneheyWarner COleman & Goggin

Volume 19 No. 4 December 2013

DefenseDigest

Joel Wertman

FEDERALFraud

Bankruptcy Fraud—Tactics for the EffectiveUse of a Plaintiff’s Bankruptcy Filing In Defending Civil Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

FLORIDAArchitectural, Engineering and Construction Defect

Contractually Limiting Individual Liability for Design Professionals Using Florida’s New Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Employment LawRamifications for Employers When There Are “Guns at Work” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

General LiabilityYou Slip. You Fall. You Lose. Florida’s UpdatedTransient Foreign Substance Statute . . . . . . . . . . . . . . . . 10

General LiabilityFrom Frye to Daubert: What You Need To Know About Admitting Expert Testimony In Florida State Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

NEW JERSEYEnvironmental & Toxic Torts

New Jersey Appellate Division Resolves Conflict with Federal Courts: Claims for Contribution Under Spill Act Are Subject to Six-Year Statute of Limitations . . . . . . . . . . . . . . . . . . . 12

NEW JERSEY (cont.)Workers’ Compensation

Not So Fast!!! The Court Reverses Dismissal of Unjust Enrichment Claim for Overpayment of Workers’ Compensation Benefits . . . . . . . . . . . . . . . . . 13

OHIOLong-Term Care Litigation

Defending the Compelled Use of Arbitration Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

PENNSYLVANIAGeneral Liability

Can A Plaintiff Safely Walk and Chew Gum at the Same Time In Pennsylvania? . . . . . . . . . . . . . . . . 23

Health CareHow Many Occurrences Have Occurred Where the Occurrence Occurs Under Statutory MCARE Coverage? . . . . . . . . . . . . . . . . . . . . . 24

Insurance CoverageReservations Over Reserving Your Rights. . . . . . . . . . . . 26

Workers’ CompensationThe Disregarded Diagnosis—How to Litigate the Termination Petition Without an Unreasonable Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Page 2 Defense Digest


On The Pulse…A Profile of Our Bethlehem, Pennsylvania Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Our Securities and Investment Professional Liability Practice Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A Message From the Executive Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

On The Pulse…Important and Interesting Litigation Achievements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Our Office Locations and Contact Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Our Recent Appellate Victories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Other Notable Achievements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Firm Background and Statement of Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31About Our Publication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

IN THIS ISSUE

Defense Digest Page 3


As the holidays approachand 2013 draws to a close, Ihave been reflecting on the pastyear and how quickly it flew by.As I engage in that process, it’sexciting to see what a wonderfulyear it was for us.

This year, our firm was recognized among the “Best PlacesTo Work” by the Philadelphia Business Journal. Our firm waslauded for creating a positive work environment that attracts andretains employees through a combination of benefits, workingconditions and company culture.

For those of us who have worked here for quite a while, we already knew that about our firm. Yet, that so many of ouremployees took the time to assess our firm in a survey speaksvolumes about our firm’s culture in and of itself. It is even morerewarding that the survey results validated what we embraceabout our firm.

While the recognition is noteworthy, I believe that our cul-ture actually fuels our varied successes. Everyone strives hardto maintain a positive work environment. In turn, this environ-ment encourages motivation, and that cultivates achievement.In 2013, we attained some remarkable results:

● ALM’s Corporate Counsel published the results of itsannual, national Fortune 500 survey “Who RepresentsAmerica’s Biggest Companies 2013?” We were grati-fied to learn that, in the category of Torts Litigation,Fortune 500 companies most frequently cited Mar-shall Dennehey. In this survey, we were recognized bysome of the leading companies in America, includingWalmart, Home Depot, Lockheed Martin and Disney,to name a few.

● Perhaps I am showing some bias, but I want to boastabout one of the Professional Liability Department’spractice groups—our appellate group. As of this writing,in 2013, this group handled over 100 appeals; multiplemembers were recognized as Super Lawyers in thearea of appellate practice; and, most importantly, theirappellate record was simply incredible. In the Third

Circuit Court of Appeals, thegroup has a record of 11-0 thusfar in 2013. Since January 1,2012, the appellate group’srecord in the Third Circuit is 25-2. In precedential decisionsby Pennsylvania state appel-

late courts, the appellate group is 7-1 in 2013 and has been 12-2 since January 1, 2012. In 2013, theappellate group had 14 significant victories, too manyto recount in detail here. Three of the decisionsinvolved vacations or reversals of plaintiffs’ trial courtverdicts of $14.5 million, $18.5 million and $20 million.We are extraordinarily proud of the leadership thatJohn Hare provides to the appellate group and theservices that John and his attorneys provide to ourfirm and our clients.

● William Banton, Jr., the assistant director of ourHealth Care Department, was selected to become afellow of the American College of Trial Lawyers. Thisis one of the premier legal associations in America.Bill was inducted at the Spring Meeting of the Collegein Naples, Florida, before 615 attendees. Fellowshipin this College is extended by invitation only. Invita-tions are only extended to those experienced triallawyers whose professional careers have beenmarked by the highest standards of ethical conduct,professionalism, civility and collegiality. Membershipin this College cannot exceed one percent of the totallawyer population of any state.

● Former Delaware Attorney General Richard R. Wier,Jr. joined our Wilmington, Delaware, office as seniorcounsel, significantly enhancing our employment lawand health care liability practices.

● Scott Dunlop was elected to the Academy of TrialLawyers of Allegheny County, Pennsylvania. Admis-sion into this Academy is by invitation only, and onlyafter extensive peer review and an election process.Scott is the managing attorney of our Pittsburgh office.


A MESSAGEfrom theEXECUT IVE COMMITTEEBy Christopher E. Dougherty, Esq.

Member of the Executive

Committee

* Chris can be reached at 215.575.2733 or [email protected].

PROFILE OF OUR BETHLEHEM, PENNSYLVANIA OFFICE(continued from page 1)

in the department by Judd Woytek, who has over 10 years ofexperience in workers’ compensation. Bill and Judd have prac-ticed their entire careers in the counties served by the Bethlehemoffice and have gained the respect of the workers’ compensationjudges before whom they appear. They are well known and wellrespected by the claimant’s bar for their diligent representation ofinstitutional clients, both large and small.

The Health Care Department is headed by Candy BarrHeimbach, who has over 25 years of experience in litigatingmedical malpractice cases. The other members of the medicalmalpractice team include Michelle Wilson and Wendy O’Connor.This group has gained the trust and confidence of large-scalehealth care institutions, individual physicians and health careproviders alike. Under Candy’s leadership, they have becomerecognized by both the bench and bar as the preeminent healthcare defense group in our geographical area.

In addition to our attorneys, the Bethlehem office owes muchof its success to a dedicated and experienced staff of secretariesand paralegals who collectively enhance the smooth and efficientrunning of the office. A number of our staff members have beenhere since the inception of the office in the Lehigh Valley over twodecades ago. Our paralegals, Bonnie Zemek and Gail Wireman,offer their multiple years of experience as professional assistantsto both the health care and the liability groups.

The attorneys in the Bethlehem office of Marshall DenneheyWarner Coleman & Goggin present a formidable group who zeal-ously defend their clients and who have earned the respect of thejudges before whom they appear, as well as their adversaries. Inaddition to their legal prowess, these attorneys are also commu-nity leaders, being active in local government as well as theboards of local colleges, theaters, historic institutions and non-profit organizations. They epitomize what we mean when we saywe are a regional law firm. ■



SECURITIES AND INVESTMENT PROFESSIONAL LIABILITY(continued from page 1)

With Andy’s wealth of knowledge, cultivated from his prior expe-rience as an insurance agent, real estate agent and registeredrepresentative with both a New York Stock Exchange memberinvestment firm as well as an independent FINRA member bro-ker dealer, Marshall Dennehey was able to offer services to meetclient demand in this continually growing practice area. It becameclear that the specialized needs of our clients would be bestserved by a dedicated practice group. Thus, the Securities andInvestment Professional Liability Practice Group was formed withAndy as its chair, a position which he continues to hold today.Over the years, the group has blossomed from a two-personpractice to its current status of ten dedicated, full-time lawyers, inaddition to several lawyers who dedicate part of their practice toserving the needs of our securities, investment and insuranceprofessional clients. Our ranks currently include former registeredrepresentatives, former in-house counsel at FINRA, member broker dealers and a former insurance company professional liability specialist.

With the group’s expansive legal background, we have suc-cessfully handled thousands of civil matters ranging from thebasic to the most complex, resulting in many defense verdicts,dismissals or favorable settlements in both judicial and non-judi-cial forums. Our extensive experience and understanding of thefinancial services industry and markets, as well as our familiarity

with investment and insurance products, enables us to efficientlyand effectively handle matters involving these issues. Moreover,the group’s broad range of experience and depth of knowledgeallows us to effectively communicate with our clients, betterassess their needs and efficiently manage ongoing litigation.

The group has cumulatively tried to conclusion more than100 cases, including jury trials, bench trials and arbitrations.We have argued numerous federal and state court injunctivehearings involving the misappropriation of trade secrets, breachof non-solicitation and non-compete contracts of individual registered representatives, as well as other issues. We have successfully defended class actions involving diverse and com-plicated issues, as well as claims involving a wide spectrum ofinvestments. We also handle litigation involving complex estateplanning tools and Internal Revenue Code qualified welfarebenefit plans.

The Securities and Investment Professional Liability Prac-tice Group has grown significantly since its inception. We areuniquely qualified to provide strategic and business counsel onthe entire range of issues facing securities and investment pro-fessionals. Clients, especially those with large self-insured reten-tions, have recognized that their interests are best served byretaining experienced counsel who are sensitive to the moresubtle aspects of their litigation and business needs. ■



A MESSAGE FROM THE EXECUTIVE COMMITTEE(continued from page 3)

● Four shareholders were selected 2013 “Best Lawyersof the Year” by Best Lawyers in America©: DennisRoman - Pittsburgh (Legal Malpractice); Steve Ryan -King of Prussia (Medical Malpractice); Dan Sherry -King of Prussia (Personal Injury); and Mike Obringer -Jacksonville (Personal Injury). Additionally, welearned right before going to press that three of ourattorneys have been selected 2014 “Best Lawyers ofthe Year” by Best Lawyers: Tom DeLorenzo - Philadel-phia (Personal Injury Litigation); Mike Obringer - Jack-sonville (Medical Malpractice); and Richard Wier, Jr., -Wilmington (Employment Law). This designation ismeaningful because it reflects the high level of respecta lawyer has earned among other leading lawyers in the same communities for their abilities, professionalismand integrity.

● Dan Sherry, longtime shareholder in our King of Prus-sia office, was named to the “Top 100 Attorneys inPennsylvania” and the “Top 100 Attorneys in Philadel-phia” Super Lawyer Lists. This was Dan’s seventhrecognition in both areas.

● Candy Barr Heimbach, shareholder in our Bethlehemoffice, was selected as the recipient of the 2013 LynetteNorton Award by the Pennsylvania Bar Association’sCommission on Women in the Profession. This awardis given to a female attorney who excels at litigation andwho is devoted to mentoring women attorneys.

● Three of our shareholders were named “Top 50Women Pennsylvania Super Lawyers”: Niki Ingram(Philadelphia); Candy Barr Heimbach (Bethlehem);and Ronda O’Donnell (Philadelphia). This is the thirdtime that Niki and Candy have been named to thisexclusive list. We are proud that Ronda has receivedher first recognition in this category.

● Martin Coleman, shareholder in Philadelphia, waselected a Municipal Court Judge of Philadelphia in theNovember 5, 2013, general election. Marty will beginserving a six-year term in January 2014.

● Diane Magram, shareholder in Cherry Hill, was elect-ed president of the Southern New Jersey Chapter ofthe American Board of Trial Advocates (ABOTA). Shewill serve a two-year term through November 2015.

● Tashia Small, associate in our Jacksonville office, wasselected to the Lawyers of Color (LOC) Hot List for theSouthern U.S. Region. Tashia was recognized for heroutstanding work following a nomination process that

included selection committee review and candidateresearch.

● Approximately 90 of our attorneys received “SuperLawyers” recognition in our various states. Of note,many of these attorneys were selected as “RisingStars,” a program that recognizes outstanding attor-neys under the age of 40 or who have been practicingfor ten years or less. Our future looks bright.

● The culture of our firm, which was recognized by the Philadelphia Business Journal, is one marked bycaring, respect, humility and humor. Emblematic ofthis healthy work environment are four initiatives welaunched this year. 1. We partnered with the Widener University School

of Law and its Veterans Law Clinic to provide pro bono legal services through its Volunteer Attorney Program. Under the direction of LawrenceSchempp, our Director of Professional Develop-ment, we are providing free legal representation toveterans and their dependents for their disabilitycompensation benefit claims pending before theU.S. Department of Veterans Affairs. Nine attor-neys volunteered to participate in this program toassist veterans who may not otherwise haveaccess to legal services. Not only does this pro-gram display the compassion our attorneys havefor their community, but it also provides our attor-neys with opportunities to advocate for clients inan environment of shrinking trial opportunities.Attorneys in our Pittsburgh and Harrisburg officeshave also volunteered for similar veterans probono cases.

2. Butler Buchanan III, Chair of our Diversity Commit-tee and our hiring attorney, is overseeing our newpartnership with the Cristo Rey Philadelphia HighSchool to sponsor the education of four of its stu-dents through the school’s unique work-study pro-gram. Cristo Rey is an independent collegepreparatory school for students of all faiths whocannot otherwise afford a private education. Fourlow-income students job-share a position within thefirm, each working one day per week. We pay aportion of each student’s high school tuition inexchange for their work services. We are enthusedto help these young teens find opportunities thatmight not otherwise be available to them.




As most any seasoned claim han-dler can attest, it is not uncommon tocome across a civil plaintiff who has pur-sued or is actively pursuing a petition forbankruptcy in the federal courts, sepa-rate and apart from his or her civil claim.As is set forth in detail below, thesebankruptcy filings can be utilized by car-riers and their insureds to great effect in

defending civil actions.Under 11 U.S.C. §§541(a)(1) of the United States Bankruptcy

Code, upon the filing of a bankruptcy petition, all of a debtor’sassets become property of the [bankruptcy] estate. “Property ofthe estate” is broadly defined in the Code as “all legal or equi-table interests of the debtor in property as of the commencementof the case.” The Bankruptcy Code requires a debtor to discloseall of his assets and liabilities, including causes of action, regard-less of the value of the claim or likelihood of success. See, Onei-da Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419(3rd Cir. 1988).

The duty to disclose applies to pre-petition claims, i.e., claimsthat arose prior to the date of the bankruptcy filing. See, 11 U.S.C.§ 521(1) (“The debtor shall file… a schedule of assets and liabili-ties… and a statement of the debtor’s financial affairs… .”); Collieron Bankruptcy, 15th Edition Rev. §521.06[3][a] (“Possible causesof action belonging to the debtor should be listed, even if the likelihood of success is unknown”). See also, Oneida MotorFreight, 848 F.2d at 416-17 (3rd Cir. 1988). The disclosure oblig-ation continues throughout the pendency of the bankruptcy proceeding and requires the debtor to amend the schedules, asnecessary, to ensure the accuracy and reliability of the disclosed

information. Okan’s Foods v. Windsor Assocs., L.P. (In re: Okan’sFoods), 217 B.R. 739, 752 (Bkrtcy. E.D. Pa. 1998).

A debtor is required to list all assets and liabilities in order toprovide the Bankruptcy Court, the trustee and the creditors of theestate information regarding the debtor’s financial condition sothat the debtor’s claims and liabilities can be adjusted, adminis-tered and distributed in accordance with the Code. When adebtor fails to list assets, the bankruptcy process is stymiedbecause neither the trustee nor the Bankruptcy Court can admin-ister such hidden property. It becomes impossible to determinewhether it has value and should be distributed for the benefit ofthe estate’s creditors or is of inconsequential value and shouldbe abandoned back to the debtor.

Given the importance of a full disclosure in bankruptcy, adebtor is barred from retaining title to, or seeking to recover,undisclosed assets that were never abandoned in the bankruptcycase. The Code provides that, “[u]nless the court orders other-wise, property of the estate that is not abandoned . . . and that isnot administered in the case remains property of the estate.” 11U.S.C. §554(d). By way of additional explanation, 11 U.S.C.§554(c) states, “[u]nless the court orders otherwise, any proper-ty scheduled under section 521(a)(1) of this title not otherwiseadministered at the time of the closing of a case is abandoned tothe debtor….” Thus, where the property (asset) is not disclosedand, thus, not scheduled under section 521(a)(1), it cannot besubsequently abandoned under section 554(c) and, therefore,remains part of the bankruptcy estate after discharge. See, 11U.S.C. §554(d). Accordingly, title to the non-disclosed propertyremains with the bankruptcy trustee and does not transfer back(via abandonment) to the debtor. See, First National Bank v.Lasater, 196 U.S. 115 (1905); Krank v. Utica Mutual InsuranceCo., 109 B.R. 668, 669 (Bkrtcy. E.D. Pa. 1990).


Federal—Fraud

BANKRUPTCY FRAUD—TACTICS FOR THE EFFECTIVE USE OF APLAINTIFF’S BANKRUPTCY FILING IN DEFENDING CIVIL CLAIMS

By Nicholas D. Bowers, Esq.*

* Nick is an associate in our Philadelphia, Pennsylvania, office. He can be contacted at215.575.2742 or [email protected].

Nicholas D. Bowers

● Where a civil plaintiff files for federal bankruptcy protection after the cause of action arose (date of loss), thatplaintiff must disclose the civil case as an “asset” in his/her petition for bankruptcy.

● If a civil claim is not disclosed in a plaintiff’s bankruptcy filing, that claim remains part of the bankruptcy estate afterdischarge, and the plaintiff loses title to the claim.

● Thus, where a plaintiff commits bankruptcy fraud, such fraud may bar that plaintiff from pursuing a civil actionand/or insurance claim even when the fraud is unrelated to the civil claim.

KEY POINTS:



In Moransais v. Heathman, 702 So.2d 601 (Fla. 2d DCA 1997), PhilippeMoransais hired a professional engineer-ing corporation to perform an inspectionof a home he had contracted to purchase.Two engineers employed by the corpora-tion, Jordan and Sauls, performed thehome inspection. Relying upon theinspection, Moransais purchased thehome, only later to find defects in thehome that the engineers should havediscovered, which made the house unin-habitable. Accordingly, Moransais filedsuit for professional negligence againstthe engineering firm, as well as againstJordan and Sauls.

As the litigation proceeded, findingconflict among circuit court decisions, the

Second District certified to the Florida Supreme Court the ques-tion of whether a purchaser of a home may later assert a causeof action for professional negligence against an employee of the corporation that the purchaser contracted with to performengineering services. The court answered in the affirmative. Thedissenting justice stated:

In all probability, the immediate effect of this majorityopinion will be an increase in malpractice insur-ance rates and the resulting increased costs of alltypes of professional services to the consumers.By its holding, the majority is spreading the cost of

losses among the public as a whole instead ofrequiring contracting parties to protect themselvesin their contracts.

Following the Moransais decision, Florida courts haverepeatedly permitted professional negligence suits against indi-vidual employees of hired corporations, regardless of the con-tractual privity, or rather lack thereof, between the claimant andthe employee. See, e.g., Witt v. La Gorce Country Club, Inc., 35So. 3d 1033, 1037 (Fla. 3d DCA 2010) (“Florida law recognizesa cause of action against an individual professional geologistfor professional negligence, irrespective of whether the geolo-gist practices through a corporation.”). More specifically, in Witt,the Third District Court of Appeal decided that a damage limita-tion clause contained within the employer-claimant contractcould not limit individual professional liability of the professionalemployees. The court specifically noted that such a clause isunenforceable as to the employee as a matter of law. In April2013, the Florida legislature spoke on the issue through SenateBill 286.

Senate Bill 286 created § 558.0035, Florida Statutes(2013), which states that a design professional “employed by abusiness entity . . . is not individually liable for damages resultingfrom negligence occurring within the course and scope of a pro-fessional services contract” provided that five circumstancesare met. It also amended the definition of “design professional”to encompass architects, interior designers, landscape archi-tects, engineers, surveyors and geologists.

Pursuant to the bill, employers who wish to limit the indi-vidual liability of their professional employees must ensure that:

a) The contract is made between the business entity and aclaimant or with another entity for the provision of profes-sional services to the claimant;


Florida—Architectural, Engineering and Construction Defect

CONTRACTUALLY LIMITING INDIVIDUAL LIABILITY FOR DESIGNPROFESSIONALS USING FLORIDA’S NEW LEGISLATION

By R. Thomas Roberts, Esq., Michael J. DeCandio, Esq. and Amanda Ingersoll*

* This article was written the with assistance of Amanda Ingersoll, a law clerk in our Jacksonville, Florida, office. R. Thomas Roberts and Michael DeCandio are shareholdersin our Jacksonville office. They can be reached respectively at 904.358.4215 [email protected] and 904.358.4203 or [email protected].

● Florida law permits contractual limitation of individual liability for negligence of “design professionals” employedby business entities.

● “Design professionals” include architects, interior designers, landscape architects, engineers, surveyors andgeologists.

● Limiting contract must “include[ ] a prominent statement that, pursuant to [§ 558.0035], an individual employeeor agent may not be held individually liable for negligence.”

KEY POINTS:

R. Thomas Roberts

Michael J. DeCandio



In Florida and across the country,impassioned discussions about gun rightsare taking place. In the wake of high-profilecases like the George Zimmerman trialand the events at the Naval Yard shootingin Washington, D.C., conceal and carrypermits have become a hot topic of dis-cussion. Much of the debate centersaround the responsibilities and obligations

of individuals who carry firearms. However, what are the responsi-bilities of employers of individuals who have a permit to carry adeadly weapon?

The Florida legislature and Constitution protect a citizen’sright to bear arms in self-defense. Fla. Const. Art. I § 8(a); §790.173(2), Fla. Stat. (2008); § 776.032(1), Fla. Stat. (2012). Inenumerating this constitutional right, the legislature has estab-lished rules and requirements for people who want to carry con-cealed weapons. A person must strictly adhere to these require-ments or risk the loss of this privilege. If one is permitted to carrya concealed weapon, in certain circumstances, an employer maynot infringe on this right without violating an individual’s constitu-tionally protected rights.

In 2008, an issue regarding this privilege arose with the pas-sage of the “guns at work” law. § 790.251. This statute is entitledthe “Preservation and Protection of the Right to Keep and BearArms in Motor Vehicles Act of 2008.” The Florida legislature intend-ed this act to “codify the long-standing legislative policy of the statethat individual citizens have a constitutional right to keep and beararms… [and] to possess and keep legally owned firearms withintheir motor vehicles for self-defense.” The act prohibits a public orprivate employer from restricting the right of an individual who islawfully carrying a concealed weapon in his or her vehicle.

This statute, as initially enacted, barred an employer from pro-hibiting “any customer, employee, or invitee from possessingany legally owned firearm when such firearm is lawfully possessedand locked inside or locked to a private motor vehicle in a parkinglot and when… lawfully in such area.” § 790.251(4)(a) (emphasisadded). Immediately following the passage of this law, severalFlorida businesses challenged its constitutionality.

In Florida Retail Federation, Inc. v. Attorney General of Flori-da, 576 F. Supp. 2d 1281 (N.D. Fla. 2008), enforcing, 578 F.Supp. 2d 1301 (N.D. Fla. 2008), the petitioner businesses arguedthat this law was unconstitutional for several reasons. Ultimately,some of these arguments were successful. The Attorney Generalwas prohibited from enforcing this law on behalf of customers andinvitees; however, the Attorney General was allowed to enforcethis law on behalf of employers’ employees. Employers must beaware of the possible repercussions of violating this law.

The law restricts an employer’s actions in several ways; noemployer may:

● Prohibit employees from possessing a legallyowned firearm that is locked inside a private motorvehicle in a parking lot.

● “[V]iolate the privacy rights of a[n]… employee… byverbal or written inquiry regarding the presence of afirearm inside or locked to a private motor vehicle ina parking lot.”

● Perform “an actual search of a private motor vehiclein a parking lot to ascertain the presence of afirearm within the vehicle.”

● Take “any action against a[n]… employee… basedupon verbal or written statements of any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot for lawfulpurposes.”


Florida—Employment Law

RAMIFICATIONS FOR EMPLOYERS WHEN THERE ARE “GUNS AT WORK”

By Rocco J. Carbone, III, Esq.*

* Rocco is an associate in our Jacksonville, Florida, office who can be reached at904.358.4225 or [email protected].

● Employers must be aware of the laws surrounding employees’ right to carry firearms.● Florida has stringent laws that protect an employee’s right to carry a firearm and limit an employer’s right

to investigate if an employee is carrying.● In Florida, an employee with a conceal and carry permit has a right to have a firearm in his or her vehicle

while parked in an employer’s parking lot.

KEY POINTS:

Rocco J. Carbone, III



CONTRACTUALLY L IMIT ING INDIV IDUAL L IAB IL ITY(continued from page 7)

b) The contract does not name as a party to the con-tract the individual employee or agent who willperform the professional services;

c) The contract includes a prominent statement, inuppercase font, at least five-point sizes larger thanthe rest of the text, that, pursuant to [§ 558.0035],an individual employee or agent may not be heldindividually liable for negligence;

d) The business entity maintains professional liabilityinsurance required under the contract; and

e) Any damages are solely economic in nature andthe damages do not extend to personal injuries orproperty not subject to the contract.

Section 558.0035(1)(a)-(e). The bill took effect on July 1, 2013,and does not state that it is retroactive.

Notably, the newly-created statute does not completelyeliminate individual liability but, rather, provides for a contractuallimitation of liability. Therefore, if the five enumerated contin-gencies were not met, a design professional would still be individ-ually liable for professional negligence occurring within the courseand scope of performing his or her professional services. See, §

471.023(3), Fla. Stat. (2013) (an engineer is personally liablefor negligence except as provided in § 558.0035); § 472.021(3),Fla. Stat. (2013) (surveyor and mapper); § 481.219(11), Fla.Stat. (2013) (architect and interior designer); § 481.319(6), Fla.Stat. (2013) (landscape architect); and § 492.111(4), Fla. Stat.(2013) (geologist). Further, the bill only limits claims on eco-nomic damages, leaving individuals still liable for claims for per-sonal injury and property damage.

Section 558.0035’s life may be short lived. Rumors of aconstitutional challenge based upon an individual’s access tocourts are already buzzing throughout the legal community.See, Fla. Const. Art. I, § 21. The Florida Supreme Court haspreviously held that the legislature’s abolishment of a commonlaw right without providing a reasonable alternative or showingan overpowering public necessity therefore infringes upon anindividual’s right of access to courts. Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). A constitutional challenge will take sometime to make its way into the courts. In the meantime, designprofessionals should ensure that their employers adequatelyprotect their individual liability by accurately following Florida’snew legislation. ■

A MESSAGE FROM THE EXECUT IVE COMMITTEE(continued from page 5)

3. We supported our firm band, “Class Action,” asthey competed in the “13th Annual Fortune Maga-zine Battle of the Corporate Bands” competition.The band made it to the final round of competition,which was held at the Rock and Roll Hall of Fameand Museum in Cleveland, Ohio. Class Actioncompeted against seven other bands for the titleof “Best Corporate Band in North America.” Whilethe band did not win, Nicolai Schurko of ourPhiladelphia office was singled out as “Best Key-boardist,” and we were the only law firm band rep-resented in the national competition.

4. Lastly, we established a corporate Twitter account,@MarshallDennLaw, to keep clients abreast ofreal-time industry updates and firm developments.Please follow us!

Amidst some significant personnel changes in 2013, ourfirm remains financially secure while other law firms are con-strained to reduce attorneys and support staff. We successfullyassimilated a new billing and accounting system this year. Wefirmly settled into our new headquarters in Philadelphia. We’veexpanded our health care practice in Cleveland this year, and we

expect more growth in Ohio in the near future. Our New York Cityoffices consolidated last year, and our New York operations, too,continue to strengthen. We are also looking to expand our NewYork presence.

With a talented, stable and experienced professional andadministrative employee base, coupled with our core values ofexcellent client service, respect for others and humility intact, weare poised to set sail toward unlimited horizons in 2014.

Therefore, I close this letter on a note of thanks. Thank youto our clients for your business and for your continued trust in usto represent you in all manner of defense matters. We valueeach and every client relationship, and we will strive to earn yourcontinued confidences and exceed your expectations for legalcounsel in 2014 and beyond.

And to our employees – thank you for your individual 2013contributions to the firm and for everything you do to make this a“best” place to work. Big or small, every effort by every person makesa difference in how we deliver our legal services to our clients.

On behalf of the Executive Committee, we sincerely wisheveryone a healthy and safe holiday season, and blessings toyou and your loved ones in the New Year. ■



On July 1, 2010, Florida Statute §768.0710 was supplanted by FloridaStatute § 768.0755. A win for premisesowners and insurance carriers, FloridaStatute § 768.0755 imposed a greater bur-den of proof upon plaintiffs in slip and fallcases allegedly caused by transitory foreignsubstances.

When considering liability exposure fora premises owner, the general rule in Flori-

da, as related to invitees (i.e., people present for the benefit of them-selves and the owner), is that a property owner owes two duties:

(1) The duty to use reasonable care in maintaining theproperty in a reasonably safe condition (i.e., free ofhazards); and

(2) The duty to warn of latent or concealed dangerswhich are or should be known to the owner and whichare unknown to the invitee, and cannot be discoveredthrough the exercise of due care.

Dampier v. Morgan Tire & Auto, LLC, 82 So.3d 204 (Fla. 5th DCA2012).

In pertinent part, former Florida Statute § 768.0710 stated thatthe plaintiff had the burden of proving that the business/premisesowner in possession or control acted negligently by failing to exer-cise reasonable care. The statute then explained that actual or con-structive notice of the transitory foreign object or substance was nota required element of proof to the claim.

However, Florida Statue § 768.0755 now places the burden ofproof completely upon the plaintiff, improving the defense’s dispositivemotion odds. The statute requires that the plaintiff must “prove that thebusiness establishment had actual or constructive knowledge of thedangerous condition and should have taken action to remedy it.”

Generally, actual notice is difficult for plaintiffs to prove in mostslip and fall matters. Therefore, proof of constructive knowledge isgenerally argued by plaintiffs to prove their cases. However, this,too, was contemplated by Florida Statue § 768.0755, which explainsthat constructive knowledge may be proven by circumstantial evi-dence showing that:

(1) The dangerous condition existed for such a length oftime that, in the exercise of ordinary care, the businessestablishment should have known of the condition; or

(2) The condition occurred with regularity and was,therefore, foreseeable.

Plaintiffs commonly attempt to rely on inference—stacking toestablish constructive notice. The Florida Appellate Courts haveaddressed this issue and have ruled that the initial inference must beestablished to the exclusion of any other reasonable theory or infer-ence. Hurst v. Astudillo, 631 So.2d 380, 381 (Fla. 3rd DCA 1994). Inother words, the inferences may be pyramided only if the initial infer-ence is established to the exclusion of any other reasonable theory.By way of example, in Winn Dixie Stores, Inc. v. White, 675 So.2d702, 703 (Fla. 4th DCA 1996), a case wherein a plaintiff could notidentify what caused her to slip and fall, the court ruled that anemployee with a buffer nearby was insufficient to establish negli-gence since the inference could only be drawn through speculationand conjecture. In another example, the Third District Court ofAppeal affirmed summary judgment in a separate slip and fall matter and ruled that actual or constructive knowledge was notestablished by the plaintiff, even though she described a “clear liq-uid” on the floor and on her shoe that she believed was the result ofa nearby employee stacking shampoo. The court ruled that this evi-dence was insufficient, without more, to create an inference that thedefendant caused the shampoo-like substance to be on the floor.The court then explained that this evidence was also insufficient toshow that the store owner had either actual or constructive notice ofa dangerous condition. These cases are not in the minority andseem to indicate that this type of speculation and impermissibleinference stacking are insufficient to establish actual circumstantialevidence as related to transitory foreign substances.

A more recent issue related to this statute, considering Florida’sfour-year statute of limitations in negligence matters, has been the“retroactive challenge” to Florida Statute § 768.0755. The argumenthas been that it is not retroactive and is only applicable to mattersfiled after July 1, 2010. The Third District Court of Appeal consideredthis argument earlier this year and ruled on April 24, 2013, that Flori-da Statute § 768.0755 is procedural in nature and does not create“new” elements that must be proven by the plaintiff. See, Kenz v.Miami-Dade County, 116 So.3d 461 (Fla. 3d 2013). Therefore, Flori-da Statute § 768.0755 is retroactive. ■

Florida—General Liability

YOU SLIP. YOU FALL. YOU LOSE. FLORIDA’S UPDATED TRANSIENT FOREIGN SUBSTANCE STATUTE

By Alan C. Nash, Esq.*

Alan C. Nash

* A.C. is an associate in our Fort Lauderdale, Florida, office. He can be reached at954.847.4923 or [email protected].

● Florida’s updated transient foreign substances statute may provides fertile ground for a dispositive motion.● Pursuant to a recent 3rd District Court of Appeal’s opinion, Florida’s updated transient foreign substances

statute is retroactive.

KEY POINTS:



INTRODUCTIONIn April 2013, the Florida legislature

passed House Bill 7015, which eliminatedFlorida’s reliance on the Frye standard forthe admission of expert testimony. EffectiveJuly 1, 2013, all Florida state courts mustadhere to the current federal standard,known as the Daubert standard. There isnothing new or novel about the Daubertstandard. Indeed, the federal court systemimplemented it more than 20 years ago.Nonetheless, Florida practitioners, andspecifically defense counsel, should em-brace this evidence shift for Florida statecourts because the new standard givesdefense attorneys more ways in which toattack expert testimony.

The change to Florida’s expert evi-dence statute took effect on July 1, 2013.See, H.B. 7015, 2013 Leg., Reg. Sess. (Fla.

2013). This has left counsel who may be in the midst of discoveryquestioning whether deposition testimony pre-dating the new statuteis subject to the Daubert standard or the Frye standard. However, thestatutory change governs the admissibility of evidence at trial, notinformation sought during discovery. Not all evidence sought duringdiscovery is required to be admissible at trial. Therefore, as of July 1,2013, any trial judge in a pending case must use the Daubert stan-dard when determining the admissibility of each expert’s testimonyat trial. Whether expert deposition testimony existed prior to July 1,2013, is irrelevant to the judge’s determination.

BACKGROUND OF FRYE AND DAUBERTThe Florida Supreme Court adopted the Frye standard for eval-

uating expert testimony in 1985. Bundy v. State, 471 So.2d 9, 18 (Fla.1985); Stokes v. State, 548 So.2d 188, 195 (Fla. 1989); see also,

Marsh v. Valyou, 977 So.2d 543, 546 (Fla. 2007). Under the Fryestandard, courts, “in admitting expert testimony deduced from a well-recognized scientific principle or discovery,” must ensure that “thething from which the deduction is made [is] sufficiently established tohave gained general acceptance in the particular field in which itbelongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).This standard widely became known as the “general acceptance”standard under which expert testimony, relying on novel scientificprocesses or techniques, was subject to a standard of review thatquestioned whether the technique was generally accepted in the sci-entific community. Marsh, 977 So.2d at 546; see also, Daubert v. Merrell Dow Pharms., 509 U.S. 579, 588 (1993).

Just as the Federal Rules of Evidence did not mention the Fryestandard, Florida’s statutory framework on evidence did not require oreven mention a Frye or “general acceptance” analysis. However, Flori-da courts continued to apply the Frye standard when evaluatingwhether expert testimony should make its way to a jury. Marsh, 977So.2d at 551 (Anstead, J., specially concurring). The standard, how-ever, was applicable to only a small amount of expert testimonybecause courts were only supposed to use it if an expert based his orher testimony on new or novel techniques. Because of this distinction,the test did not apply to pure opinion testimony because, usually, anexpert bases his or her opinion on years of experience—not new ornovel techniques. In passing House Bill 7015, the Florida legislaturedenounced all reliance on Frye and adopted a three-part test to beused in accordance with the current federal standard, or Daubert stan-dard, and its progeny.

The Daubert standard and its progeny rely on a “scientific knowl-edge” approach to determining whether expert testimony is not onlyrelevant, but also reliable, and, therefore, admissible as evidence.Daubert, 509 U.S. at 590. The focus of the Daubert test is solely onthe “principles and methodology” used by testifying experts, “not onthe conclusions that they generate.” Daubert places the trial judge ina “gatekeeper” position and requires that the judge use a combinationof four considerations to address whether the theories and techniquesof proposed expert testimony are reliable. Judges operating as a gate-keeper under Daubert must consider: (1) whether the theory or tech-nique can, or has been, tested; (2) “whether the theory or technique


Florida—General Liability

FROM FRYE TO DAUBERT: WHAT YOU NEED TO KNOW ABOUTADMITTING EXPERT TESTIMONY IN FLORIDA STATE COURTS

By R. Thomas Roberts, Esq., Michael J. DeCandio, Esq. and Amanda Ingersoll*

* Tom Roberts and Mike DeCandio are shareholders in our Jacksonville, Florida, office. Theycan be reached respectively at 904.358.4215 or [email protected] and 904.358.4203or [email protected]. Amanda Ingersoll is a law clerk in our Jacksonville office.

● Florida state courts must now adhere to the Daubert standard for admitting expert testimony.● While Frye relied on “general acceptance” of an expert’s methods and techniques, Daubert takes a scientific

knowledge approach to determine the reliability of an expert’s testimony.● Unlike the Frye standard, under the new standard, pure opinion testimony is subject to a reliability analysis.● Existing deposition testimony will be subject to the Daubert standard, regardless of whether the testimony

existed prior to the change.

KEY POINTS:

R. Thomas Roberts

Michael J. DeCandio



The New Jersey Appellate Divisionrecently resolved a conflict that had existedbetween state and federal courts regardingthe applicability of the statute of limitations toclaims for contribution brought under the NewJersey Spill Compensation and Control Act,N.J.S.A. 58:10-23.11, et seq. (Spill Act). InMorristown Associates v. Grant Oil Company,74 A.3d 968 (N.J. Super. App. Div. 2013), theAppellate Division decided for the first time

that private claims for contribution under the Spill Act are subject to thesix-year statute of limitations found in N.J.S.A. 2A:14-1. The court alsodetermined that application of the statute of limitations is subject to thediscovery rule, which tolls the limitations period until such time as theplaintiff either knows or should know of the facts giving rise to the causeof action. See, Lopez v. Swyer, 300 A.2d 563 (N.J. 1973).

In Morristown Associates, the plaintiff sued various fuel deliverycompanies and a prior owner of a shopping mall complex it owned forcontribution toward remediation and investigation expenses related tocontamination from a leaking underground storage tank (UST). Theplaintiff alleged that the fill pipes to the UST, located under a drycleaning business, leaked oil into the soil and groundwater from 1988to 2003. The plaintiff alleged that the oil companies and the priorowners of the mall failed to inspect the pipes and the UST to ensurethey were not leaking and to make necessary repairs. The plaintiffbrought claims under the Spill Act, the New Jersey EnvironmentalRights Act, N.J.S.A. 2A:35A-1 to-14, and common law negligence.

The trial court granted various motions for summary judgmentfiled by the defendants, thereby limiting the plaintiff’s claims toevents of contamination that occurred within six years preceding thefiling of the complaint. Subsequently, the plaintiff resolved or volun-tarily dismissed all such claims that arose during the six-year limita-tion period and then filed an appeal from the trial court’s rulings onsummary judgment.

The Appellate Division, in an apparent about-face, upheld thetrial court’s decision, finding that claims for contribution under the Spill

Act are subject to the six-year limitations period set forth in N.J.S.A.2A:14-1. In doing so, the Appellate Division resolved a long-standingconflict between state and federal courts on this issue, whichstemmed from two previous decisions of the Appellate Division dealingwith a statute of repose and a statute of limitations.

In the first case, Pitney Bowes v. Baker Industries, Inc., 649 A.2d1325, 1327-1328 (N.J. Super. App. Div. 1994), the Appellate Divisionfound that claims for contribution under the Spill Act were not subject toa statute of repose. The Morristown Associates case acknowledged thisdiscrepancy, but explained that, unlike the statute of limitations, “astatute of repose is strictly applied to bar a claim without any regard towhen the claimant discovered or could have reasonably discovered theharm.” In contrast, any harshness or unjustness that results from theapplication of a statute of limitations can be eased by application of thediscovery rule. Thus, the Appellate Division in Morristown Associatesfound that the statute of limitations, unlike the statute of repose, is not“patently repugnant or inconsistent” with the purposes of the Spill Act.

The second case could not as easily be distinguished since, unlikePitney Bowes, it dealt specifically with the statute of limitations issue. Inan unpublished opinion, Mason v. Mobil Oil Corp., 1999 N.J. Super.Unpub. LEXIS 7 (N.J. Super. App. Div. June 8, 1999), the AppellateDivision applied the reasoning of Pitney Bowes to conclude that privateclaims for contribution under the Spill Act are not subject to a statute oflimitations. Although this case is in direct contrast to the Appellate Divi-sion’s more recent decision in Morristown Associates, it was an unpub-lished decision and, therefore, non-binding and non-precedential.

The Morristown Associates case puts New Jersey state courts inline with their federal counterparts by adopting the reasoning set forthin several federal court decisions on the very same issue. Specifically,in Reichhold, Inc. v. United States Metals Refining Co., 655 F. Supp.2d 400, 446-47 (D.N.J. 2009), the District Court of New Jersey foundthat private claims for contribution under the Spill Act were subject toa six-year statute of limitations. The Reichhold court reasoned thatother environmental laws, such as the Comprehensive Environmen-tal Response, Compensation and Liability Act (CERCLA), were alsosubject to a six-year statute of limitations. The Reichhold court alsonoted that where a statute does not contain an express limitations


New Jersey—Environmental & Toxic Torts

NEW JERSEY APPELLATE DIVISION RESOLVES CONFLICT WITH FEDERALCOURTS: CLAIMS FOR CONTRIBUTION UNDER SPILL ACT ARE SUBJECT

TO SIX-YEAR STATUTE OF LIMITATIONSBy Kevin T. Bright, Esq.*

* Kevin is an associate in our Cherry Hill, New Jersey, office who can be reached at856.414.6057 or [email protected].

Kevin T. Bright

● Private claims for contribution under the New Jersey Spill Act are subject to a six-year statute of limitations.● The six-year statute of limitations period is subject to the discovery rule.● Previous conflict between New Jersey state and federal courts on this issue now resolved.

KEY POINTS:



In Adam Weiner v. Elizabeth Board of Education, 2013 N.J. Super. Unpub. LEXIS 1729 (N.J. Super. App. Div. July 15,2013), the New Jersey Appellate Divisionaddressed the issue of what process isrequired in order to properly evaluate anunjust enrichment claim. The fact of the caseare straightforward. On October 18, 2000,Weiner received an award of permanent/total disability that entitled him to paymentsof $480 per week. On January 9, 2001, the

award was amended to $340.98 per week to reflect the social securityoffset rate. On April 1, 2002, Weiner began receiving ordinary disabilitypension benefits, in addition to his workers’ compensation benefits,and did not disclose his receipt of disability pension benefits to his former employer.

Eight years later, the employer requested authorization foraccess to Weiner’s pension records to determine if an offset wasapplicable. When the records were provided, the employer, for thefirst time, became aware that Weiner had been receiving disabilitypension benefits. On August 10, 2011, Weiner and the employerentered into a consent agreement prospectively reducing the petition-er’s disability rate to $222.39.

The employer also filed a motion seeking reimbursement of thepast excess worker’s compensation benefits Weiner received fromApril 1, 2002, through August 10, 2011. A hearing was held before aworkers’ compensation judge on August 1, 2012. The judge deniedthe employer’s motion. On appeal, the employer argued that it wasentitled to recover the overpayment because Weiner was unjustlyenriched and he could not establish a defense of equitable estoppel.

In analyzing the appeal, the Appellate Division stated that thereis a two-step process to recover an overpayment. First, it must bedetermined if the petitioner was unjustly enriched, an issue for whichthe respondent employer has the burden of proof. If the respondentsucceeds, it may then institute enforcement proceedings in the LawDivision. This process allows an employer to recover in a faultlessoverpayment situation, since “an underlying theme of the workers’

compensation law is that there should not be duplicative payments forthe same disability.” Montgomery v. Abex Corp., 602 A.2d 290, 891(N.J. Super. App. Div. 1992).

To establish unjust enrichment, an employer must show both thatthe petitioner received a benefit and that retention of that benefit with-out payment would be unjust. Assocs. Commercial Corp. v. Wallia,511 A.2d 709, 716 (N.J. Super. App. Div. 1986). It is considered unjustenrichment to permit the recipient of money paid under mistake of factto keep it, unless the circumstances are such that it would beinequitable to require its return. PaineWebber, Inc. v. Levy, 680 A.2d798, 799 (N.J. Super. Law Div. 1995).

The workers’ compensation judge determined that, given Wein-er’s inability to work and his limited income, to compel him to repaywould be “inequitable.” In reversing the dismissal of the employer’smotion for reimbursement, the Appellate Division noted that the onlybasis for the workers’ compensation judge’s decision was a referenceto Weiner’s tax returns, the most recent of which showed an annualsalary of $17,295 for 2010. The Appellate Division criticized that noevidential hearing was held. Further, it disapprovingly remarked thatWeiner’s assets and liabilities (net worth) had not been considered.

The Appellate Division remanded the case for a complete evi-dentiary hearing regarding whether Weiner had “limited resources”and whether it “would be inequitable” to require him to repay theduplicative benefits he had received. Interestingly, the court even indi-cated that it would be appropriate for the workers’ compensationjudge to consider an appropriate repayment plan.

The Weiner decision is important because it reaffirms the princi-ple that employers are entitled to reimbursement when an overpay-ment in benefits occurs in error. A petitioner’s claimed inability to pay,by itself, is insufficient to deny repayment. In litigating similar claims,employers should adopt a “no stone left unturned” mentality and seekany and all financial information from a petitioner so the court canproperly consider a potential repayment order, or even an “appropri-ate repayment plan” as referenced by this decision.

If you think you have made an overpayment or improper pay-ment of disability benefits, you should talk with your legal counselimmediately. The longer an overpayment issue goes unresolved, theless likely it is you will achieve a satisfactory financial recovery. ■

New Jersey—Workers’ Compensation

NOT SO FAST!!! THE COURT REVERSES DISMISSAL OF UNJUST ENRICHMENT CLAIM FOR OVERPAYMENT OF

WORKERS’ COMPENSATION BENEFITSBy Robert J. Fitzgerald, Esq.*

* Bob, a shareholder in our Cherry Hill, New Jersey, office, can be reached at856.414.6009 or [email protected].

Robert J. Fitzgerald

● In considering an unjust enrichment claim in workers’ compensation, a court must first be guided by theseminal principle of avoiding duplicate payments.

● Claimed financial inability alone is not enough to avoid having to repay disability benefits received in error.● The court must consider all evidence in determining financial ability to repay erroneous benefits and all

options in formulating a repayment plan.

KEY POINTS:



CASUALTY DEPARTMENTMark Riley (King of Prussia, PA) and his team obtained adefense verdict in a premises liability case in Philadelphia afteran eight-day trial. The plaintiff slipped and fell on a puddle ofwater in a large supermarket. She alleged that she sustainedmultiple catastrophic injuries. She contended that her injuriesresulted from the defendant’s failure to comply with industry stan-dards regarding floor inspection and its failure to timely discoverthe water on the floor. Notably, the plaintiff sought to preclude evi-dence that she was on Social Security Disability prior to theaccident. This motion in limine was denied by the court afterargument. The store manager’s testimony, as elicited by Mark,debunked the opinions of the plaintiff’s retail liability expert. Theplaintiff’s credibility was sorely damaged when, after being con-fronted with two prior complaints alleging some of the sameinjuries, she denied having said injuries, characterizing the alle-gations as “boilerplate.” Mark asked her to point out to the jurywhich of the sworn allegations in her two prior complaints wereuntrue. She did so, saying that she relied on her attorneys—thesame attorneys representing her in the present action. The plain-tiff presented $900,000 in special damages and made a demandof $1.5 million, that was maintained through mediation prior to tri-al. The demand was reduced to $900,000 and then finally to$600,000 while the jury deliberated over two days. The juryreturned a defense verdict with a finding of no negligence on theeighth day of trial. Mark was assisted by Tom Song in trial prepa-ration and by paralegal, Lori McNally, who obtained and orga-nized over 5,000 documents. Mark was also assisted by ShaneHaselbarth of the appellate department, who provided the briefon the Social Security Disability issues.Timothy Jaeger (Roseland, NJ) obtained a defense verdict in atrial where the plaintiff suffered a compound fracture of his lowerright leg after falling from a “homemade tree stand” located on aproperty in Pennsylvania that was owned by his two adult sons.One of the sons, a carpenter, had constructed the tree stand fromscrap lumber and had mounted the rungs of the ladder to thestand by nailing boards to two adjoining trees. The plaintiff fellfrom the ladder when one of the rungs broke away from the sin-gle nail that was holding it to the tree. The plaintiff fell approxi-mately 15 feet to the ground and suffered the injury. The plaintiff,

and his wife, filed the action against his two sons. The plaintiff’sexpert testified that the tree stand was defective because it wasnot constructed according to accepted construction practices andthat the rungs should have been attached to the trees using multiple lag bolts and washers so that the rungs would not fail if one of the nails came loose. The parties entered into a high-lowagreement on damages and tried the case on liability only. Duringthe first trial of the case, which ended in a mistrial during jurydeliberations, the court had entered a directed verdict in favor ofthe plaintiff and against the sons based upon one son’s testimonythat he agreed with the plaintiff’s expert that he had improperlyconstructed the tree stand and was negligent for his father’sinjury. During the second trial, the defendant’s son expounded onhis less than favorable testimony by not only admitting that hewas negligent, but also testifying that he did not believe that hisfather was negligent. The court did not enter a directed verdictduring the second trial, ruling that the jury had to decide issuesof credibility. Despite the son’s admission of liability and exoner-ation of his father, the jury returned after 15 minutes, finding thatthe son was not liable under the social host theory of liability ashe had no duty to warn his father of the dangerous condition.James Cole (Doylestown, PA) obtained a defense jury verdict inPhiladelphia County. Jim defended an insurer in a suit brought byits insured claiming property damage caused when their son fellover on a barstool and cracked a ceramic tile kitchen floor. Jimargued that the plaintiffs failed to meet their burden of proof withtheir submission of an inflated public adjuster’s estimate. He wasable to convince the jury that common sense dictated that a$37,000 proposal for a kitchen floor was not credible.Daniel McDermott and Lori Quinn (New York, NY) successfullyrecovered $408,757 against an ocean carrier and interstatetrucking company for a loss involving the non-delivery of two con-tainers of clothing. The recovery represents the full value paid bythe insurers, including freight charges incurred by its insured, ahigh-end clothing company, against an ocean carrier. Dan andLori were successful in pursuing this subrogation recovery andovercoming potential liability limitations under the Carriage ofGoods by Sea Act and the Carmack Amendment.Walter Klekotka and Rachael von Rhine (Cherry Hill, NJ)obtained summary judgment in a house fire case involving the

On The Pulse…

IMPORTANT & INTERESTING LITIGATION ACHIEVEMENTS*...We Are Proud Of Our Attorneys For Their Recent Victories

(continued on page 15)* Prior Results Do Not Guarantee A Similar Outcome



On The Pulse… (continued from page 14)

death of a tenant. The plaintiff’s theory of liability was that thesmoke detectors were not working and that a fire extinguisherwas not provided by the landlord. The testimony of all witnesseswas that the plaintiff’s decedent had ample opportunity to exit thepremises but, instead, chose to go back in after her personalbelongings. Rachael argued the motion for summary judgmentand convinced the judge to grant the motion, who ruled that therewas no proximate cause between the decedent’s death and thelack of working smoke detectors.Lauren Burnette and Nicole Ehrhart (Harrisburg, PA) obtainedsummary judgment in a property damage claim. In 1998, theplaintiff purchased a parcel of property in Lackawanna County forthe purpose of relocating his automotive repair business. Theproperty was located downhill from a large nursing home. Theplaintiff claimed that the nursing home’s storm water manage-ment system caused rainwater to run downhill and pool on hisproperty. The plaintiff claimed to have sustained several hundredthousand dollars in damages stemming from water and moistureruining his equipment and vehicles. In 2008, after nearly 10 yearsof almost no activity, the plaintiff filed for bankruptcy. He did notidentify this litigation (or his other five pending lawsuits) in hisbankruptcy schedules, nor did he disclose approximately$150,000 worth of equipment and machinery. Lauren and Nicolemoved for summary judgment, arguing that the plaintiff was judi-cially estopped from pursuing this litigation due to his failure todisclose it during his bankruptcy. The plaintiff then moved toreopen his bankruptcy, claiming that the failure to list the litigationand equipment was his counsel’s error and that he thought thecase had been “informally abandoned” by the bankruptcy trustee.The Court of Common Pleas of Lackawanna County initially dis-missed our motion for summary judgment without prejudice,pending the outcome of a hearing on the plaintiff’s motion toreopen his bankruptcy. We appeared at the bankruptcy hearingand argued against the plaintiff’s motion. Ultimately, the judgedeclined to reopen the plaintiff’s bankruptcy, citing a lack of goodcause to do so. Lauren and Nicole then filed a second motion forsummary judgment, renewing our argument concerning judicialestoppel and adding the argument that the plaintiff now foreverlacked standing to pursue this claim. The court accepted botharguments, finding the plaintiff lacked standing and, even if thisweren’t the case, the plaintiff was judicially estopped due to hisconcealment of assets from the bankruptcy court.Diane Magram and Mari Grimes (Cherry Hill, NJ) obtained aunanimous defense verdict in a matter tried before the SuperiorCourt of New Jersey, Camden County. The plaintiff was the front-seat passenger in the defendant’s vehicle on the date of the auto

accident at issue. The defendant driver—the plaintiff’s mother—rear ended another vehicle. Liability was stipulated. The plaintiffalleged aggravation of two pre-existing conditions. The first con-dition was a chronic patella problem, for which she had surgery.The plaintiff alleged that she had no knee complaints from 2004up to the time of the accident and that, as a result of hitting herknee on the dashboard, she was experiencing excruciating painand would require Orthovisc injections every six months for therest of her life. She also alleged that she was unable to havethese injections while she was pregnant and nursing her new-born, which caused her great pain. The plaintiff also alleged anexacerbation of a pre-existing Tethered Spine Syndrome, whichhad required a laminectomy and detachment. The plaintiff’sexperts were an orthopedic surgeon and a neurologist. Thedefense expert testified that the plaintiff’s knee symptomatologywas related to her pre-existing knee condition and that the Teth-ered Cord Syndrome was not exacerbated by the motor vehicleaccident. The jury deliberated for nearly five hours and found thatthe plaintiff did not sustain a permanent injury as a result of theaccident. The prior arbitration award was $200,000.Andrew Wargo and Beau Hollowell (Cleveland, OH) obtainedsummary judgment for a national chain restaurant against dramshop allegations. In this case, the negligent-free, deceased plain-tiff was a professor at a local college who died in a head-on crashwith a drunk driver. The drunk driver was a patron of our client,which served him several drinks at its establishment. The drunkdriver left our establishment about 30 minutes before the crash.Although the other defendants had previously settled, Andrewand Beau were able to defeat the plaintiff’s claims, which weresupported by a well-known toxicologist. The trial court found thatthere was no evidence that our client served the drunk driverwhile he was noticeably intoxicated. The drunk driver’s BAC afterthe crash was 0.179.Andrew Wargo (Cleveland, OH) also obtained a defense verdicton behalf of a uniform manufacturer in Medina County, Ohio, inwhich the plaintiff claimed significant burns and medical expensesin excess of $50,000 from a welding accident. The 52-year-oldplaintiff claimed that our client improperly provided the wrongtype of uniform for his job and that our client had misrepresentedthat the plaintiff would be receiving a flame retardant uniform.After three days of trial, the jury returned a unanimous defenseverdict in less than 45 minutes.Thomas Brown (Orlando, FL) obtained summary judgment infavor of a large water park in a negligence action. The plaintiff, a55-year-old engineer, claimed she slipped and fell when shestepped on a waterslide ride mat that was lying in a walkway at

* Prior Results Do Not Guarantee A Similar Outcome (continued on page 18)



OFFICE LOCATIONS & CONTACT INFORMATION

PENNSYLVANIA

Philadelphia2000 Market Street, Suite 2300Philadelphia, PA 19103215.575.2600 • Fax 215.575.0856 Thomas A. Brophy, Esq., President and CEO215.575.2748 • [email protected]

Bethlehem1495 Valley Center Parkway, Suite 350Bethlehem, PA 18017-2342484.895.2300 • Fax 484.895.0208 William Z. Scott, Esq., Managing Attorney 484.895.2306 • [email protected]

Doylestown10 N. Main Street, 2nd FloorDoylestown, PA 18901267.880.2020 • Fax 215.348.5439 R. Anthony Michetti, Esq., Managing Attorney267.880.2030 • [email protected]

Erie717 State Street, Suite 701Erie, PA 16501814.480.7800 • Fax 814.455.3603 G. Jay Habas, Esq., Managing Attorney814.480.7802 • [email protected]

Harrisburg100 Corporate Center Drive, Suite 201Camp Hill, PA 17011 717.651.3500 • Fax 717.651.3707 Timothy J. McMahon, Esq., Managing Attorney 717.651.3505 • [email protected]

King of Prussia620 Freedom Business Center, Suite 300King of Prussia, PA 19406610.354.8250 • Fax 610.354.8299 Wendy J. Bracaglia, Esq., Managing Attorney610.354.8256 • [email protected]

PittsburghU.S. Steel Tower, Suite 2900600 Grant Street, Pittsburgh, PA 15219412.803.1140 • Fax 412.803.1188Scott G. Dunlop, Esq., Managing Attorney 412.803.1144 • [email protected]

ScrantonP.O. Box 3118Scranton, PA 18505-3118570.496.4600 • Fax 570.496.0567Robin B. Snyder, Esq., Managing Attorney 570.496.4610 • [email protected]

NEW JERSEY

Cherry HillWoodland Falls Corporate Park200 Lake Drive East, Suite 300Cherry Hill, NJ 08002856.414.6000 • Fax 856.414.6077 Richard L. Goldstein, Esq., Managing Attorney856.414.6013 • [email protected]

Roseland425 Eagle Rock Avenue, Suite 302Roseland, NJ 07068973.618.4100 • Fax 973.618.0685Joseph A. Manning, Esq., Managing Attorney 973.618.4103 • [email protected]



DELAWARE

Wilmington1220 N. Market Street, 5th FloorWilmington, DE 19801302.552.4300 • Fax 302.651.7905Kevin J. Connors, Esq., Managing Attorney 302.552.4302 • [email protected]

OHIO

Cleveland127 Public Square, Suite 3510Cleveland, OH 44114-1291216.912.3800 • Fax 216.344.9006 Samuel G. Casolari, Jr., Esq., Managing Attorney 216.912.3801 • [email protected]

FLORIDA

Ft. Lauderdale100 Northeast 3rd Avenue, Suite 1100Ft. Lauderdale, FL 33301954.847.4920 • Fax 954.627.6640Craig S. Hudson, Esq., Managing Attorney 954.847.4955 • [email protected]

Jacksonville200 W. Forsyth Street, Suite 1400Jacksonville, FL 32202904.358.4200 • Fax 904.355.0019Martin Sitler, Esq., Managing Attorney 904.358.4234 • [email protected]

OrlandoLandmark Center One315 E. Robinson Street, Suite 550Orlando, FL 32801407.420.4380 • Fax 407.839.3008Cynthia Kohn, Esq., Managing Attorney 407.420.4388 • [email protected]

Tampa201 E. Kennedy Boulevard, Suite 1100Tampa, FL 33602813.898.1800 • Fax 813.221.5026Russell S. Buhite, Esq., Managing Attorney 813.898.1827 • [email protected]

NEW YORK

New YorkWall Street Plaza, 88 Pine Street, 21st FloorNew York, NY 10005-1801212.376.6400 • Fax 212.376.6494Jeffrey J. Imeri, Esq., Managing Attorney 212.376.6408 • [email protected]

Long Island – Hauppauge888 Veterans Memorial Highway, Suite 540Hauppauge, New York 11788631.232.6130 • Fax 631.232.6184Anna M. DiLonardo, Esq., Managing Attorney 631.232.6130 • [email protected]

On November 1, 2013, we moved into our new

Harrisburg, Pennsylvania, office.

Our new address is:Suite 201

100 Corporate Center DriveCamp Hill, PA 17011

Our phone numbers remain the same. Our fax number haschanged to: (717) 651-3707.




the park. As a result of the fall, she sustained a comminuted frac-ture of the left femoral neck that required surgery. During theplaintiff’s deposition, she admitted that she did not know how theride mat ended up on the walkway, how long it had been there orwhether any of the park’s employees knew about it. The parkfiled a proposal for settlement for $500 and, when it was notaccepted, moved for summary judgment on the issue of notice.The judge granted summary judgment in favor of the park, whichthen sought a judgment for its fees and costs. The plaintiff’s attor-ney then conceded the park’s entitlement.

HEALTH CARE DEPARTMENTCandy Barr Heimbach and Michelle Wilson (Bethlehem, PA)obtained a defense verdict on behalf of a cosmetic surgeon. Theplaintiff, a 73-year-old man, complained of the outcome of a ble-pharoplasty, a cosmetic procedure to improve the look of his low-er eyelids. He claimed that the procedure caused his lids toretract too much, which, in turn, caused him to suffer dry eye syn-drome and to look “skeletonized.” He claimed that the particularapproach was contraindicated due to his skin laxity, that toomuch fat was removed instead of being redistributed, and that hehad not been properly warned of the risks of these outcomes.Candy and Michelle defended the propriety of the recommenda-tion for the approach, the performance of the procedure and thepre-operative discussion to obtain informed consent. The juryfound that there was no negligence by the doctor and that theplaintiff had properly obtained the informed consent.Fredric Roller and MaryKate McGrath (Philadelphia, PA)obtained a defense verdict in Philadelphia County following athree-week jury trial in which the plaintiff alleged she developeddisabling Reflex Sympathetic Dystrophy (RSD) as a result of animproperly applied immobilization device following tarsal tunnelsurgery on her right foot. The defense essentially conceded thescope of her current damages, which resulted in significant physi-cal limitations as well as emotional issues, including periodic suici-dal ideation and consideration of amputation of her foot. Liabilitywas contested. The plaintiff’s counsel provided an almost dailybarrage of eight-figure settlement demands, irrelevant andaccusatory allegations, and bad faith threats. The plaintiff main-tained that she exhibited signs of nerve damage within threedays of surgery that were either ignored or missed by our clientuntil approximately 45 days post-op. Based on the plaintiff’sexpert’s theory of the cause of the RSD and physical manifesta-tions, Fred and MaryKate were able to persuade the jury that the“medicine” simply did not support the plaintiff’s claims. Much tothe shock of plaintiff’s counsel, the jury returned a unanimousverdict within one and a half hours of beginning deliberations.

PROFESSIONAL LIABILITY DEPARTMENTMargaret Kelly (Scranton, PA) obtained summary judgment forher engineer client against claims of negligent misrepresentation.In the case, the plaintiff was a contractor installing a sanitarysewer system when it encountered a mismarked water line. Itwas alleged and not disputed that the engineer had mapped thewater line improperly (due to the negligence of another defen-dant) in the pre-design plans. The plaintiff had to re-route thewater line and alleged damages as a result. Meg was able toestablish that the plaintiff did not properly follow the constructiondispute clause in the contract and, therefore, the plaintiff’s claimswere time-barred. Terry Lefco and Aaron Moore (Philadelphia, PA) obtained a victory in a three-day trial in the Orphans Court in Philadelphia. Anational Chinese benevolent association asserted control of alocal Chinese benevolent association, claiming that the localorganization was merely a chapter of the national. The nationalpurported to remove all of the locally elected officers and replacethem with an executive board. It also purported to take control ofthe local organization’s real estate, valued in the millions of dol-lars, and notified the tenants to pay all rents to its agent. Thelocal organization stoutly maintained that the national had nosuch powers over it, that it had been an independent organiza-tion since 1923 and that its officers and property rights continuedunabated. The trial consisted mostly of testimony from membersof the local and national Chinese communities, much of it in Man-darin Chinese. There was disputed factual testimony about:whether, and to what extent, members took oaths and to whom;whether and why people attended national conventions; andwhether the national bylaws were ever adopted or accepted bythe local organization. Terry and Aaron were successful, however,in showing the court the long and independent existence of thelocal organization and the lack of proof that it had ever agreed tosubjugate its rights to self-control to the national on the keyissues in the case.Dennis Roman and Charlene Seibert (Pittsburgh, PA) obtainedsummary judgment in a legal malpractice action arising from ourattorney-clients’ former representation of the plaintiff againstmedical professionals and others after the plaintiff had beeninvoluntarily committed pursuant to §302 of the Mental HealthProcedures Act (MHPA). Despite difficult facts concerning theattorney-defendants’ failure to serve the underlying defendantsand prosecute such suit, Dennis and Charlene successfullyargued that the plaintiff would not have been successful in hisunderlying action due principally to broad immunity provisionsunder the MHPA, and, therefore, the plaintiff could not establish





that the attorney-defendants were the proximate cause of anyactual loss or harm. We further argued that the plaintiff’s alterna-tive underlying claim for “fraud” based upon alleged falsifiedmedical records did not provide a basis for civil liability underPennsylvania law. In opposition to summary judgment, the plain-tiff sought to alter his theories of recovery. The trial court agreedthat the plaintiff’s last-minute effort to change his theory of recov-ery to overcome summary judgment was untimely and otherwiseinsufficient as a matter of law. No appeal was taken.Thomas Wagner and Robert Stanko (Philadelphia, PA)obtained a defense verdict on behalf of a local transportationauthority in the Philadelphia County Court of Common Pleas.The 32-year-old plaintiff was claiming permanent disability andthat he was unable to return to work after live trolley wires fell andstruck the vehicle he was in. Tom and Rob were authorized tostipulate to liability at their discretion, but ultimately did not, andthe jury of eight returned a verdict of no negligence at the closeof the four-day trial.Kevin McGoldrick (Cherry Hill, NJ) was successful in obtainingsummary judgment dismissing all claims against our client due tothe plaintiffs’ failure to cooperate with the policy of insuranceissued to the named insured and their failure to submit tosequestered Examinations Under Oath (EUOs) pursuant to thelanguage of the policy. Kevin argued that the plaintiffs had beenplaced on notice multiple times to come forward to provide testi-mony under oath in order to allow the carrier to make an informeddecision regarding coverage available under the policy. The courtagreed that the plaintiffs could not bring legal action against thecarrier without complying with the underlying request(s) forEUOs. Therefore, the plaintiffs breached the policy on twocounts: (1) failing to appear for the sequestered EUOs, and (2)failing to cooperate. Thus, they had no standing to bring suitagainst the carrier per the language of the policy.Andy Davitt, Jeff Chomko and Jim Gicking (Philadelphia, PA)obtained judgment on the pleadings in federal district court fortheir client, a regional bank, in a complex action brought by atrustee/heir/executor of an estate against the bank as co-trustee,and against an attorney, for their alleged negligence, breach offiduciary duty and tortious interference with timely carrying outobligations under an amended trust agreement. (The trust agree-ment was part of an amended estate plan designed to confer $8million in tax benefits to the estate and to the two heirs, includingthe plaintiff.) A year earlier, the court granted some relief to Andyand Jeff’s client, agreeing that under the federal probate excep-tion to diversity jurisdiction, the plaintiff lacked standing to pursueclaims as co-executor, but that he was permitted to proceed in

his “individual capacity and as a beneficiary.” The present motionsought judgment on the remaining claims in the federal action ofbreach of fiduciary duty, negligence, gross negligence and tor-tious interference. Andy, Jeff and Jim maintained that the plaintiffcould only establish that the bank owed him a duty that wouldsupport the negligent/breach of fiduciary duty claims if he couldshow he had an independent relationship with the bank, which hecould not do, and that he was necessarily premising duty on acontract-based third-party beneficiary theory, which is not recog-nized under Pennsylvania law. The court agreed, dismissing thebreach of fiduciary duty and negligence claims. The court alsoentered judgment on his tortious interference-with-a-trust claim,agreeing that Pennsylvania’s appellate courts have rejected thistheory (though recognized under the Restatement (Second) ofTorts 774B) and has “so far limited such claims” to frustrating/interfering with carrying out an intended legacy under a will.Christopher Conrad (Harrisburg, PA) successfully defended aschool district in a special education due process hearing. Theparents of a middle school student diagnosed with intellectualdisability, autism, and speech and language impairment claimedthe district failed to provide their son with a Free AppropriatePublic Education (FAPE) during his sixth and seventh gradeyears because, in their view, he was not making meaningfulprogress in reading and math, and the district was not adequate-ly managing his behaviors, which prevented the student fromprogressing. The parents sought two years of compensatoryeducation and a district-funded independent functional behav-ioral assessment. After several hearing days, the special educa-tion hearing officer concluded that the school district had provid-ed the student with an appropriate education through the Individ-ualized Educational Programs offered to him in sixth and seventhgrades and that the student had demonstrated meaningful edu-cational progress over both years. The hearing officer also con-cluded that the district’s own functional behavioral assessment,which was conducted at the parents’ request, was appropriate,complied with the IDEA and correctly concluded the student wasnot in need of a formal Positive Behavioral Support Plan as partof his program in order to manage his behavior in school.

WORKERS’ COMPENSATION DEPARTMENTTony Natale (Philadelphia, PA) successfully prosecuted a termi-nation petition on behalf of a large Lancaster-based employer. Thecase involved a work-related asthma condition that was aggra-vated by the claimant’s exposure to soldering fumes and dust in2004. The claimant’s medical condition generated thousands ofdollars per month in expenses, and the resulting exorbitantMedicare Set Aside allocation made settlement an impossibility.




* Prior Results Do Not Guarantee A Similar Outcome

On The Pulse…

MARSHALL DENNEHEY IS HAPPY TO CELEBRATE OUR RECENT APPELLATE VICTORIES*

In Nelson v. Airco Welders Supply, Nos. 865, 866, 867 and 889EDA 2011 (Pa. Super. Sept. 5, 2013), the Pennsylvania Superi-or Court reversed a $14.5 million verdict on two bases andremanded for a new trial on liability and damages. The appealwas handled by Kim Boyer-Cohen, Carol Vanderwoude andJohn Hare (Philadelphia, PA). In its 2-1 panel decision, theSuperior Court awarded a new trial on liability because the tes-timony of plaintiff’s expert was invalid under Frye v. U.S., 293 F.1013 (D.C. Cir. 1923), as applied to asbestos cases by thePennsylvania Supreme Court in Betz v. Pneumo Abex, LLC, 44A.3d 27 (Pa. 2012). The Superior Court further held that a newtrial on damages was required because, in his closing argu-ment, the plaintiff’s lead counsel improperly suggested specificdollar amounts for the award of noneconomic damages—a vio-lation of Pennsylvania law.

In Redding v. Estate of Robert Sugarman, 2013 U.S. App. LEXIS17576 (3rd Cir. Aug. 22, 2013), an appeal handled by AudreyCopeland (King of Prussia, PA), the Third Circuit affirmed thesummary judgment obtained by Fred Roller (Philadelphia, PA)against the pro se plaintiff in her professional malpractice case onthe ground that she could not meet her burden of proof withoutexpert testimony, which she failed to proffer.

In Whitesell v. Workers’ Comp. Appeal Bd. (Staples, Inc.), 74 A.3d297 (Pa.Cmwlth. 2013), the Commonwealth Court was persuadedby Audrey Copeland (King of Prussia, PA) to affirm the decisionof the Appeal Board and the Workers’ Compensation Judge

denying the claimant’s fatal claim petition, which was securedbelow by Tony Natale (Philadelphia, PA), because the dece-dent’s death from a mixed drug toxicity did not occur within 300weeks of the date of her 2003 work injury as required by §301(c)(1) of the Act. The court held that the compensable workinjury occurred in 2003 and that it was irrelevant to the computa-tion of the 300-week limitations period that the decedent’s workinjury was expanded in 2006. The court also rejected any argu-ment that the injury was “insidious,” rather than a standard workinjury, and what amounted to the claimant’s attempt to create anew classification for the decedent’s work injury.

Jamey McGovern (Pittsburgh, PA) and Jim Gicking (Philadel-phia, PA) successfully defeated a petition for allowance of appealto the Supreme Court of Pennsylvania. The case involved a hus-band and wife who purchased $6 million in coverage on severallife insurance policies, insuring their lives and the lives of theirthree minor children. The allegations were that the sales practicesof the insurance company and its agent violated the Pennsylva-nia Unfair Trade Practices and Consumer Protection Law (UTPC-PL). The plaintiffs demanded a jury trial, and the judge deniedtheir motion. Jamey tried the case before a different judge in abench trial and obtained a defense verdict. Jim handled the Supe-rior Court appeal in which the defense verdict was affirmed. Mostnotably, the Superior Court agreed with us that there is no right toa jury trial in a case based solely upon violations of the UTPCPL.The Pennsylvania Supreme Court declined to accept the appeal,so this important precedent remains the law in Pennsylvania. ■


Tony was able to vigorously cross examine the claimant’s med-ical expert to the point that the judge ultimately decided that theclaimant had fully recovered from the workplace aggravation.This saved the insurance company millions of dollars in medicalexpenses that would have been paid over the claimant’s ongoinglife expectancy.Tony Natale (Philadelphia, PA) was successful in defending theinterests of a local university involving three separate claim peti-tions with three separate dates of injury filed by one claimant.The case involved medical issues regarding cervical, thoracic

and lumbar spine disc abnormalities. After cross examination ofthe claimant’s expert, the judge found that the claimant sustainedstrain injuries on the dates of each occurrence (as opposed toserious disc injuries) and that she had fully recovered from anyand all injuries and was fit for full-duty work. Integral to this deci-sion was the judge’s finding that the claimant’s medical expertwas not credible regarding his opinions as to the aggravation ofpre-existing degenerative disc abnormalities riddled throughoutthe claimant’s spine. ■



* Prior Results Do Not Guarantee A Similar Outcome

On The Pulse…

OTHER NOTABLE ACHIEVEMENTS*The firm has partnered with the Veterans Law Clinic of WidenerLaw School to provide pro bono legal services through its Volun-teer Attorney Program. The Clinic provides free legal representa-tion to veterans and their dependents with disability compensationbenefit claims pending before the Department of Veteran Affairs.Veterans Law Clinic pro bono coordinators Susan Saidel, Esq.and Jennifer Morrell, Esq. recently held a CLE training at the firm.Participating attorneys included Lauren Moser, Christine Dower,Christine Becer, Eric Yun, Katharine Koob, Timothy Ventura,Lee Durivage and Kaitlin DeCrescio.

Jason Banonis (Bethlehem, PA) has been appointed as a Directorfor the Northeast Region of the Pennsylvania Defense Institute. PDIis one of the largest organizations of its kind in the United States,with an impressive membership of approximately 1,000 lawyers,insurance company executives, self-insurers and independentadjusters from across the state. Organized in 1969, it provides acommunication link among Pennsylvania defense attorneys, super-visory and managerial employees of insurance companies, self-insurers, independent adjusters and others who defend damagessuits and administer claims. PDI also provides representation onlegislation and legal cases of importance to its members.

Several Marshall Dennehey members were recognized at thePennsylvania Defense Institute’s 45th Annual Conference. As amember of the PDI’s executive leadership, Matt Keris (Scranton,PA) was responsible for planning and hosting the entire event.Jay Habas (Erie, PA) moderated the panel discussion “Work-place Violence: Liability Issues.” John Hare (Philadelphia, PA)also moderated the panel “Winning Your Case on Appeal,” whichincluded Justice Michael Eakin of the Pennsylvania SupremeCourt and Judge Kevin Brobson of the Pennsylvania Common-wealth Court. Additionally, Matt Keris was elevated from Execu-tive Vice President to President-Elect of the organization.

Jim Pocius (Scranton, PA) was a speaker at the SEAK 33rd

Annual National Workers’ Compensation and Occupational Medicine Conference in Hyannis, Massachusetts. Jim presenteda session titled “The Medicare Mystery and Your Settlements:Medicare Set-Aside Update.” The conference brings together the nation’s leading workers’ compensation professionals todiscuss cutting-edge issues. It is currently the largest andlongest-running national workers’ compensation and occupa-tional medicine conference of its kind in the United States.

Tashia Small (Jacksonville, FL) was recently named to the inau-gural Lawyers of Color (LOC) Hot List for the Southern U.S.region. The Hot List recognizes outstanding, mid-career minorityattorneys under the age of 40, following a nomination process

that includes selection committee review and internal candidateresearch. Originally founded as On Being a Black Lawyer, LOChas been recognized by the American Bar Association, NationalBlack Law Students Association and National Association ofBlack Journalists.

The firm recently held its Advanced Trial Advocacy Mock TrialProgram in the Philadelphia office Mock Trial Courtroom. Facul-ty and participants included David Krolikowski (King of Prussia,PA), Larry Schempp (Philadelphia, PA), Kimberly Meany(Wilmington, DE), Marty Sitler (Jacksonville, FL), Lee Durivage(Philadelphia, PA), John Aponick (Scranton, PA), Joan Ford(King of Prussia, PA), John Gonzales (Philadelphia, PA), TomBrown (Orlando, FL), Jason Bialker (Philadelphia, PA), Jean-nie Liebegott (Fort Lauderdale, FL) and Kevin McGoldrick(Cherry Hill, NJ).

The Philadelphia Business Journal has named Marshall Den-nehey Warner Coleman & Goggin one of its Best Places to Workin the Philadelphia region. The award recognizes the company’sachievements in creating a positive work environment thatattracts and retains employees through a combination of benefits,working conditions and company culture. Hundreds of companiessubmitted nominations to the program, which ranks the topemployers according to scores given to the companies by theirown workers. Marshall Dennehey’s Delaware Valley locations,including its Philadelphia headquarters and offices in King ofPrussia, Doylestown and Cherry Hill, were included in the survey.

Marshall Dennehey has partnered with the Cristo Rey Philadel-phia High School to sponsor the education of four of its studentsthrough the school’s unique work-study program. Cristo Rey is an independent, Catholic, college preparatory school for students of all faiths who cannot otherwise afford a private edu-cation. Beginning September 4 and extending through the2013-2014 school year, four students will job share a positionat the firm, each working one day per week, Monday – Thursday,plus one additional Friday per month. In exchange, MarshallDennehey will pay a portion of each student’s high school tuition.According to Butler Buchanan, III, Hiring Attorney and Chair ofthe firm’s Diversity Committee, partnering with Cristo Rey is anatural fit for the firm which was looking for meaningful ways tobecome more involved with the community. “The school’s mis-sion is consistent with the ethics and values of our firm, and isone that resonates as we continue to pursue a pathway to truediversification,” he said. “And, at the end of the day, it’s all aboutgiving back by providing kids with opportunities that might nothave come their way.” ■



On September 9, 2003, an Ohioappellate court published its opinion inMcFarren v. Emeritus at Canton, 2013Ohio App. LEXIS 4058 (Ohio Ct. App.Sept. 9, 2013). The opinion is contrary tofairly recent United States Supreme Courtlaw that bolstered the compelled applica-tion of binding arbitration agreements inlong-term nursing facility litigation. During

the preceding 18 months, based on Marmet Health Care Center,Inc. v. Brown, 132 S. Ct. 1201 (2012), the plaintiffs’ bar had facedan uphill battle in pursuing lawsuits against nursing homes. The“law of the land” appeared to mandate that arbitration agreementswere enforceable, even in wrongful death matters involving bene-ficiaries who were not a part of the agreement at the time it wassigned. A few eyebrows were raised by the recent decision of theCourt of Appeals of Ohio. A few plaintiffs’ counsel were certainlythrilled. A few more legal battles are likely to follow.

In order to grasp the impact of the McFarren decision, weneed to go back to the beginning. In 2007, the Ohio SupremeCourt accepted an appeal to clarify whether an individual decedentcould bind his beneficiaries to arbitrate their wrongful death claimsagainst a defendant in Peters v. Columbus Steel Castings Co., 873N.E.2d 1258 (Ohio 2007). The Peters court’s analysis relied upontwo general principles: (1) only those who actually sign the arbi-tration agreement are bound by the terms of the agreement; and(2) a beneficiary’s wrongful death action is independent of a sur-vival action of the decedent. The court determined that when adecedent agrees to arbitrate his or her claims, the beneficiariescannot be bound to the terms of the agreement because they didnot sign the agreement.

The Peters holding could be viewed as fairly simple but forthe actual language contained in most arbitration agreements. It isfairly common to include language that extends to the signee’sbeneficiaries. At the very least, most arbitration agreements do, or

should, include language demonstrating that the scope of theagreement covers existing and future claims, i.e. wrongful death.Basically, all claims and disputes, every single claim now or later,is covered. Similar language is often found in releases used incase resolutions prior to trial. Many attempts have been made topursue a wrongful death matter following the resolution of a per-sonal injury matter. This language usually sways a trial court todismiss the matter and has convinced appellate courts to upholdthe decision. The Peters court did not consider these variables inits decision. In doing so, enforcement of arbitration agreementswas significantly weakened, particularly in the long-term care set-ting where litigation commonly follows the death of a resident whoactually signed the agreement.

Things changed in February 2012. In Marmet Health CareCenter, Inc. v. Brown, the United States Supreme Court revisitedthe arbitration agreement issue while deciding a case involvingthree negligence suits against nursing homes in West Virginia. Ineach case, a family member of a patient signed an agreement witha nursing home, on behalf of the patient, to arbitrate all disputes,and a family member of the patient in each case sued the nursinghome, alleging negligence that caused injury resulting in death.Each case was ordered to arbitration and appealed. The West Vir-ginia Supreme Court disagreed with these rulings. The UnitedStates Supreme Court vacated the decisions. The defense bar inWest Virginia and, based upon our experience, Ohio finally hadsomething to counter plaintiffs’ reliance upon Peters.

The importance of the Marmet decision does not result onlyfrom the fact that the Supreme Court allowed for the arbitration ofwrongful death claims involving nursing homes. It stems from itsreliance upon the Federal Arbitration Act, 9 U.S.C. § 1, et seq. TheMarmet court determined that the prohibition against pre-disputeagreements to arbitrate personal injury and wrongful death claimsagainst nursing homes is a categorical rule prohibiting arbitrationof a particular type of claim, which is contrary to the terms and coverage of the FAA. To say that this specific analysis was impor-tant to nursing homes, which usually include some reference tothe FAA in their arbitration agreements, is an understatement.


Ohio—Long-Term Care Litigation

DEFENDING THE COMPELLED USE OF ARBITRATION AGREEMENTSBy Jason P. Ferrante, Esq.*

* Jason, an associate in our Cleveland, Ohio, office, can be reached at 216.912.3808or [email protected].

Jason P. Ferrante

● The U.S. Supreme Court has allowed arbitration agreements, even in wrongful death matters involvinglong-term care facilities.

● An Ohio appellate court disagrees and has opened the door for more arguments on the issue.

KEY POINTS:



We have all heard the expression,“He can’t walk and chew gum at the sametime.” City dwellers not only have to becareful walking across the street, but theymust also mind where they step on thesidewalk. Generally, the law in Pennsyl-vania is that a property owner’s duty ismerely to maintain the pavement of theirproperty in a condition of reasonablesafety, not to ensure the safety of pedes-trians traversing it against any and allaccidents. Harrison v. Pittsburgh, 44 A.2d273, 274 (Pa. 1945).

In several cases, the PennsylvaniaSupreme Court has found certain eleva-tions to be de minimis as a matter of law.For example, in McGlinn v. Philadelphia,186 A. 747 (Pa. 1936), no liability wasfound on an inch and one-half difference

between the levels of two abutting curbstones. In Newell v. Pitts-burgh, 123 A. 768 (Pa. 1924) an inch and one-half differencebetween adjoining ends of flagstones at a street crossing wasfound trivial. No liability was found in Foster v. West View Bor-ough, 195 A. 82 (Pa. 1937), when an uneven step between acurb and a sidewalk was measured two to four inches lower thansidewalk level. Finally, in Magennis et vir. v. Pittsburgh, 42 A.2d449 (Pa. 1946), a hole one and seven-eighth inches below thelevel of pavement was deemed de minimis.

Lately, when evaluating a plaintiff’s trip-and-fall claim, courtshave looked to factors in addition to the size of the defect in orderto determine whether it is “trivial.” Courts have examined the sizeof the defect, how long it has been in existence, whether there

was prior knowledge of the defect before the accident andwhether the plaintiff saw it immediately before the fall. Tworecent cases have left the analysis of whether a defect is “trivial”to the jury.

In Mull v. Ickes, 944 A.2d 1137 (Pa. Super. 2010), with thesidewalk at the defendant’s business still partially covered infresh snow, the plaintiff fell when she stepped on an uneven por-tion of the sidewalk with a gap between the concrete slabs. Thealleged defect was a gap measuring more than two inches inwidth that created a height differentiation of an inch and one-halfin depth.

A motion for summary judgment was filed, in which it wasargued that the sidewalk defect was “trivial.” The Court of Com-mon Pleas of Somerset County found in favor of the defendant.On appeal, the Superior Court reversed and remanded the case.

The lower court’s opinion reveals that the plaintiff had livedacross the street from the defect for seven years and that theplaintiff periodically visited the defendant’s property during theyear preceding the incident. The lower court did not determinewhether the plaintiff had seen the defect during any of her priorvisits. Neither had the court inquired into how long the defect hadbeen in existence.

Consistent with the Pennsylvania Supreme Court precedentcited herein, the Superior Court noted that property owners arenot responsible for trivial defects that exist in a sidewalk. Thisconcept had to be reconciled with the notion that there is no precise or mathematical rule defining what constitutes a trivialdefect. The court noted that when a defect is not so obviouslytrivial as to be trivial as a matter of law, the question of liabilitymust be submitted to a jury. In reaching its decision, the courthad looked to the measurements of the defect in question, notedthat it was directly in the plaintiff’s path and acknowledged thatpart of the sidewalk was covered in snow—although there was


Pennsylvania—General Liability

CAN A PLAINTIFF SAFELY WALK AND CHEW GUM AT THE SAME TIMEIN PENNSYLVANIA?

By Matthew J. Noble, Esq. and David Salazar, Esq.*

* Matt is a shareholder in our Philadelphia, Pennsylvania, office who can be reached at215.575.2744 or [email protected]. David is an associate in our Philadelphia officewho can be reached at 215.575.2696 or [email protected].

Matthew J. Noble

● When evaluating “trivial defects” in a trip-and-fall case, a court will look at more than just the depth of thedefect to determine if it is so obviously trivial.

● When a defect is not so obviously trivial, the question of negligence must be submitted to a jury.

KEY POINTS:

David Salazar



The Pennsylvania Supreme Courtrecently addressed the meaning of “occur-rence” with regard to the limits of coverageprovided by the Medical Care Availabilityand Reduction of Error Fund (Fund) onmatters that fall under the “extendedclaim” provision at § 715 of the MCAREAct, i.e. matters brought more than fouryears after the alleged negligence. In Kin-

ney-Lindstrom v. MCARE Fund, 2013 Pa. LEXIS 1786 (2013), theplaintiff sought declaratory judgment against the Fund, seeking, inpart, a determination of the coverage limits applicable to an under-lying verdict in favor of both of her twin children for the negligenceof the doctor who had treated her during pregnancy. The doctorhad assigned to the plaintiff his rights to litigate this issue.

The underlying matter involved allegations of a failure to time-ly diagnose in utero infections suffered by the twins that causedpermanent damages. Each child had been awarded an amount inexcess of the $1 million limit set forth in § 715(b) of the MCAREAct: “The limit of liability of the fund for a claim defended by thedepartment under subsection (a) shall be $1,000,000 per occur-rence.” The plaintiff sought to recover $1 million per child, while theFund sought a determination that only one occurrence was atissue, thereby limiting recovery to only one such amount. ThePennsylvania Commonwealth Court had denied summary judg-ment to the plaintiff and granted summary judgment to the Fund onthis issue. It relied upon the holding of the Pennsylvania SupremeCourt in Donegal Mutual Insurance Company v. Baumhammers,938 A.2d 286 (Pa. 2007), to find that the underlying liability arosefrom a single “occurrence,” insofar as one should look to the“cause” of an injury as the occurrence, and not to the number ofvictims or “effects” from such cause.

On appeal to the Supreme Court, the plaintiff argued that theDonegal holding should not apply to the definition of “occurrence”in the Act because Donegal involved the interpretation of specificlanguage in a private contract of insurance. She further arguedthat, when considering the application of statutory coverage underthe Act, the court should apply the “remedial” goal of the Act, refer-ring to § 102(4), declaring one purpose of the Act to be “a promptdetermination and fair compensation” for any person injured bymedical negligence. For these two reasons, she sought a declara-tion that an occurrence should be viewed on a “per victim” basis,rather than a “per cause” basis. Finally, she asserted that, evenwhen viewing this matter on a “per cause” basis, the Fund wasliable for an additional limit because each of her children was dam-aged by a distinct organism at a distinct time—thus, constitutingtwo separate causes.

The court agreed that Donegal was not dispositive insofar asit interpreted the term “occurrence” within a private contract ofinsurance. However, it noted that the Act’s use of the term was notdefined and, therefore, was ambiguous. It then noted that thelegislature had used both the terms “claim” and “occurrence”separately in § 715(b) and, so, could not have meant that each“claim” (or “injury” or “victim”) should be considered a separateoccurrence under the Act. It noted that the legislature could haveused such terms, rather than the term “occurrence,” if it had intendedto apply the “effects” approach to claims covered by the Fund.

The Supreme Court further rejected the plaintiff’s interpreta-tion of the Act’s policy statement, noting that other issues hadbeen recognized by courts as primary purposes for the Act: theperceived increasing costs of malpractice claims, the rise in insur-ance premiums for providers and the fear that providers wouldleave Pennsylvania for those reasons. See, Pennsylvania MedicalSociety v. Department of Public Welfare, 39 A.3d 267 (Pa. 2012).Thus, the court held that the number of occurrences for which the


Pennsylvania—Health Care

HOW MANY OCCURRENCES HAVE OCCURRED WHERE THEOCCURRENCE OCCURS UNDER STATUTORY MCARE COVERAGE?

By Michelle L. Wilson, Esq.*

* Michelle is a shareholder in our Bethlehem, Pennsylvania, office. She can be reachedat 484.895.2326 or [email protected].

Michelle L. Wilson

● The term “occurrence” is not defined in the MCARE Act regarding the limits of coverage applicable in medicalmalpractice matters in which the MCARE Fund has primary coverage (§ 715 cases).

● The number of occurrences for which the Fund is liable under § 715 is determined by examining whetherone or more instances of professional negligence caused the harm alleged.

● Several negligent acts culminating in a distinct condition or injury will not invoke a separate policy limit.

KEY POINTS:



RAMIF ICAT IONS FOR EMPLOYERS(continued from page 8)

● Allow anyone other than an on-duty law enforce-ment officer to search a “private motor vehicle inthe parking lot of a public or private employer toascertain the presences of a firearm within thevehicle… based upon due process and [compli-ance] with constitutional protections.”

● Condition employment based upon either: 1. oneholding, or not holding, a conceal and carry permit,or 2. an agreement between the employer andemployee prohibiting an employee from keeping alegal firearm locked in a private motor vehicle.

● Prohibit, or attempt to prevent, an employee fromentering the parking lot because the vehicle hasa legal firearm in the vehicle.

● “[T]erminate the employment of or otherwise dis-criminate against an employee… for exercisinghis or her constitutional right to keep and beararms or for exercising the right of self-defense aslong as a firearm is never exhibited on companyproperty for any reason other than lawful defen-sive purposes.”

Essentially, this act prohibits an employer from even inves-tigating whether an employee is carrying a concealed firearmand prohibits any type of retaliatory action by an employer in thehiring or firing of an employee because that person has a concealand carry permit and a weapon in the parking lot. However, someexceptions to this right do apply to an individual carrying aweapon in a vehicle.

There are several areas and businesses where one maynot carry a concealed firearm. Some of these areas includeschool property, correctional institutions and any business dealingwith combustible or explosive materials. Of particular note, aswell, is the fact that an employee may not carry a concealedfirearm in a motor vehicle owned by the employer.

The ramifications of the “guns at work” law are potentiallycostly to employers. Employers face the cost of litigation if anemployee alleges that an employer violated his or her right tocarry a concealed weapon. In addition, the Attorney Generalhas the authority to bring a civil, or administrative, actionagainst the employer, which can result in an employer having topay damages and civil penalties. To further complicate matters,the employee can then bring a civil suit against the employer.This can cost even more for the employer because the employeeis entitled to attorneys fees if successful.

No matter what type of business one owns in Florida, it islikely that an employer will have an employee who has a concealand carry permit. Employers must understand the potential lia-bility that can result from the fact that employees haveweapons on the premises. With the Stand Your Ground Lawnot likely to be repealed and the increase in purchases ofhandguns, in order to protect their livelihood, employers needto be aware of the legal ramifications of this, and similar, laws.Employers should consult with counsel to avoid unnecessarylitigation costs and to understand the issue in order to reducethe risk of litigation. ■

BANKRUPTCY FRAUD—TACTICS(continued from page 6)

Stated plainly, where a plaintiff files for bankruptcy protec-tion and does not disclose a civil cause of action that arose prior to bankruptcy discharge, the plaintiff becomes barred frompursuing the civil action following termination of the bankruptcycase (discharge). The practical effect of this operation of law issignificant. Specifically, it provides an opportunity to dispose ofa claim based on the plaintiff’s fraudulent conduct in a collateralbankruptcy proceeding. The claim could be worth $10,000 or$10 million – the plaintiff loses his or her right to pursue the civilaction, regardless of its merit or potential value.

Several tactics are recommended in order to ensure thatan opportunity to dispose of a claim, as described above, is not

missed or overlooked. In investigating a claim, take a recordedstatement and ask the plaintiff whether he has ever filed forbankruptcy protection and, if so, when. This line of questioningshould also be pursued at the time of deposition. Further, allanswers in this regard are verifiable via review of the applica-ble bankruptcy petition filing, docket and discharge order (eachof which are public records and are available at a reasonablecost). In the event it is determined that a plaintiff failed to disclose an actual or potential civil claim in a bankruptcy filingresulting in a discharge subsequent to the civil date of loss, the plaintiff’s civil claim should be denied and defended on this basis. ■



On July 10, 2013, the Superior Courtof Pennsylvania issued its opinion in TheBabcock & Wilcox Co., et al. v. AmericanNuclear Insurers, et al., 2013 Pa. Super.LEXIS 1630 (Pa. Super. July 10, 2013). Theunderlying case involved insurance cover-age disputes for two nuclear fuel processingfacilities and had a lengthy and complicatedprocedural and factual history. The defen-dant American Nuclear Insurers (ANI) pro-

vided insurance coverage for nuclear hazards at the two facilitiesowned and operated by the plaintiffs, The Babcock & Wilcox Co. andB & W Nuclear Environmental Services, Inc. (collectively, B & W), andwhich were previously owned and operated by Atlantic Richfield Com-pany (ARCO). A class action lawsuit was filed against B & W in fed-eral court for bodily injury and property damage allegedly sustainedfrom radioactive emissions produced by the two facilities. A coveragedispute later arose regarding the limits of coverage available toindemnify the plaintiffs in the underlying tort action and whether theplaintiffs were entitled to counsel.

While the tort action was pending, ANI filed a declaratory judg-ment action in the Court of Common Pleas of Allegheny Countyagainst the plaintiffs, seeking a declaration as to whether it had a dutyto provide separate counsel to ARCO in the tort action. ANI alsoalleged bad faith and breach of contract by B & W, which filed its ownaction seeking declarations regarding the coverage issues andalleging bad faith against ANI. These actions were later consolidated.

On April 5, 2001, the trial court ordered that ANI had a duty topay for independent defense counsel to represent and defend theseparate interests of B & W and ARCO in the tort action. The SuperiorCourt subsequently affirmed the trial court’s order.

The underlying tort action was later settled for less than the policylimits through the negotiations of counsel retained by B & W. Settle-ment funds were provided by B & W, which then sought to recoverfrom ANI, along with counsel fees. ANI disagreed with the decision tosettle and refused to reimburse B & W. ANI argued that it had noobligation to make any payments because B & W had violated theconsent to settlement clause in the policy.

The trial court analogized the instant case to Alfiero v. Berks Mut.Leasing Co., 500 A.2d 169 (Pa. Super. 1985) and ruled that B & Wwas entitled to reimbursement if the settlement was fair, reasonableand non-collusive. Underlying the court’s holding in Alfiero had beenits finding that the insurer’s denial of coverage had constituted a repu-diation of its insurance contract with the owner, leaving the insuredfree to negotiate a settlement, so long as it was fair and reasonable.The jury in the instant action had determined that the underlying settlement was fair, reasonable and non-collusive. Therefore, the trialcourt Judge R. Stanton Wettick ordered that ANI was obligated to pro-vide insurance coverage to the plaintiffs in the amount of $80 million,plus prejudgment interest. ANI appealed.

Although the issue of an insured’s obligation to honor a consentto settle clause with an insurer who tenders a defense, subject to areservation of rights, was one of first impression, the Superior Courtnoted that it had been addressed by numerous state and federalcourts. It considered that an insurer’s defense of the insured does notwaive the insurer’s claims that a policy exclusion applies and that aninsurer has the right to control the defense and select defense coun-sel, even when tendered subject to a reservation of rights. Moreover,it stated that to defend subject to a reservation of rights does not,without more, constitute a breach of contract.

The court then discussed the potential conflicts of interest that areimplicated when an insurer provides a defense, subject to a reservationof rights. For example, the court reasoned that an insurer could be justas interested in developing facts that would result in non-coverage as itwould be in establishing facts showing that the insured is not liable.Regardless, some courts have held that these concerns may be ame-liorated by the prospect of a post-verdict claim for insurer bad faith.

After examining the various approaches to resolving the dilem-ma, the Superior Court ultimately agreed with the Florida Court ofAppeals’ decision in Taylor v. Safeco Ins. Co., 361 So.2d 743 (Fla. Ct.App. 1978). Based thereon, the Superior Court held that when aninsurer tenders a defense subject to a reservation of rights, theinsured may choose one of two options.

First, it may accept the defense, in which case it remainsunqualifiedly bound to the terms of the consent to settle provision ofthe policy. The insurer retains full control over the litigation, and theinsured is protected against injuries stemming from the insurer’s con-duct in the defense through a potential bad faith suit.


Allison L. Krupp

Pennsylvania—Insurance Coverage

RESERVATIONS OVER RESERVING YOUR RIGHTSBy Allison L. Krupp, Esq.*

* Allison is an associate in our Harrisburg, Pennsylvania, office who can be reached at717.651.3510 or [email protected].

● When an insurer tenders a defense subject to a reservation of rights, the insured has two options: (1) acceptthe defense and remain bound to the terms of the consent to settle provision of the policy; or (2) decline theinsurer’s tender of a qualified defense and furnish its own defense.

● Under the second option, if coverage is found, the insured may recover defense costs and costs of settle-ment from the insurer.

KEY POINTS:



● A medical expert’s testimony is not competent to support a workers’ compensation termination of benefits if it does not acknowledge the accepted work injuries and opine that the claimant has recovered from thoseinjuries.

● There is no requirement that the medical expert believe that the claimant actually suffered the acceptedwork injuries or that they were work-related.

KEY POINTS:

Both defense attorneys and insur-ance adjusters have been in the situationwhere they receive an IME report in whichthe doctor seems to have disagreed withthe work-related diagnoses or ignoredwhat was judicially determined as work-related by a workers’ compensation judge.While this isn’t the ideal situation, case lawexists that will assist your defense attorneyin litigating a termination petition to con-clusion, without risking unreasonable con-test. This article will provide information asto how you can salvage a termination peti-tion in these situations.

A claimant’s benefits under the Penn-sylvania Workers’ Compensation Act maybe terminated where the employer estab-lishes by unequivocal and competent medical testimony that the claimant’s dis-ability has ceased or that any remaining

disability is not connected to the work-related injury. O’Neill v. WCAB (News Corp. Ltd.), 29 A.3d 50, 53 (Pa.Cmwlth. 2011). An employer can meet this burden of proof by obtaining an IMEreport in which the doctor opines that the claimant is fully recov-ered. The doctor must then testify unequivocally that, assuming the accepted injury to have occurred, the claimant is fully recoveredfrom such injury.

However, the IME doctor is bound by the work-related injurydescription either judicially determined by a judge, or unilaterallyaccepted by the employer via notice of compensation payable,agreement for compensation or the like. Since the employer maynot re-litigate the nature of the accepted work-related injury—asthis would be a collateral attack on the prior judge’s decision—amedical expert’s opinion will not support a termination of benefitsif that medical expert does not acknowledge the accepted work

injuries and does not opine that a full recovery has been madefrom those injuries. Gillyard v. WCAB (Pennsylvania Liquor ControlBoard), 865 A.2d 991, 996 (Pa.Cmwlth. 2005); GA & FC Wagman,Inc. v. WCAB (Aucker), 785 A.2d 1087, 1092 (Pa.Cmwlth. 2001).

There is no requirement, however, that the medical expertbelieve that the claimant actually suffered the accepted workinjuries, or believe that the accepted work injuries were, in fact,work related. A medical expert’s opinion is competent if heassumes the presence of that injury and opines that the injury wasresolved by the time of the IME.

For example, in Pazymino v. WCAB (Crime PreventionAssociation), 2013 Pa. Commw. Unpub. LEXIS 157 (Pa.Cmwlth.Feb. 26, 2013), the defense medical expert, Dr. Malumed, wasasked a hypothetical question. He was told to assume that additional injuries were related to the work injury. He acceptedthe assumption and opined that the claimant was fully recoveredfrom those injuries. Because Dr. Malumed’s testimony was competent and sufficient to establish that the claimant’ disabilityhad resolved and that any remaining problems were not relatedto the work injury, the termination of the claimant’s benefits wasproperly affirmed.

Moreover, in Thao To v. WCAB (Insaco, Inc.), 819 A.2d 1222 (Pa.Cmwlth. 2003), the IME physician credibly testified that he believed that there was no connection between theclaimant’s current complaints due to medical and physiologicalimpossiblity. He also opined, within a reasonable degree of medical certainty, that there was no connection between theclaimant’s complaints and the event that may or may not haveoccurred in the course of his employment with the employer.Lastly, the expert credibly testified that the claimant had a normalexamination, that there was no evidence of a medical impair-ment, that there was no reason for ongoing care and that theclaimant had made a full and complete recovery from any injuryhe may have sustained in the course and scope of his employ-ment. For these reasons, the Commonwealth Court found thatthe defense medical expert supported the employer’s burden in atermination petition proceeding.


Pennsylvania—Workers’ Compensation

THE DISREGARDED DIAGNOSIS—HOW TO LITIGATE THE TERMINATION PETITION WITHOUT AN UNREASONABLE CONTEST

By Andrea Cicero Rock, Esq. and Raphael Duran, Esq.*

* Andrea and Raph are associates in our Philadelphia, Pennsylvania, office. Andrea canbe reached at 215.575.2756 or [email protected]. Ralph can be reached at215.575.2710 or [email protected].

Andrea Cicero Rock

Raphael Duran



has been subjected to peer review and publication”; (3) “theknown or potential rate of error” for a “particular scientific tech-nique”; and (4) whether the theory or technique is generallyaccepted in the relevant scientific community. However, underDaubert, these factors are ones that a court may consider. Thecourt in Daubert minced no words in emphasizing this, notingthat the inquiry is a “flexible one,” whose sole purpose is to deter-mine the scientific validity of the testimony. Id. at 595; see also,Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).

FLORIDA’S DAUBERTFlorida’s new expert evidence standard mirrors Federal

Rule of Evidence 702 and requires a court to consider threeenumerated requirements when determining whether evidenceis admissible at trial. Specifically, Florida courts must nowdetermine whether: (1) the expert’s testimony is based uponsufficient facts or data; (2) the expert’s testimony is the productof reliable principles and methods; and (3) the expert appliedthe foregoing principles and methods reliably to the specificfacts of the case. In addition, a court must now interpret andapply these three requirements in accordance with the four-partDaubert test, which aids in analyzing whether the principles andmethods used by the expert are reliable. See, Kumho Tire Co.,526 U.S. at 150.

The Florida legislature has also broadened the reach ofFlorida’s expert evidence standard by explicitly subjecting pureopinion testimony to its analysis. It also applies regardless ofwhether the technique is new-and-novel or tried-and-true. Allare subject to analysis under the new standard. Further, relyingupon the Daubert progeny, the new standard “applies not onlyto testimony based on ‘scientific’ knowledge, but also to testi-mony based on ‘technical’ and ‘other specialized’ knowledge,”which includes “engineers and other experts who are not sci-entists.” Kumho Tire Co., 526 U.S. at 141.

CONCLUSIONFlorida’s new expert testimony statute provides litigants

with the opportunity to more thoroughly vet expert testimony.While there is much debate on whether the Frye or the Daubertstandard is the more stringent standard, it is clear that the newstandard will prevent decisions based upon “junk science” andlead to more credible expert testimony. In the long run, defenseattorneys should welcome this new shift because, unlike theprevious “general acceptance” standard that only applied tonew-and-novel techniques, a hearing under the new statuteoffers additional opportunity to exclude more and different typesof expert testimony. ■

FROM FRYE TO DAUBERT: WHAT YOU NEED TO KNOW (continued from page 11)

NEW JERSEY APPELLATE DIVISION RESOLVES CONFLICT(continued from page 12)

period, courts should select a limitations period from amongthose periods applicable to actions seeking similar relief at com-mon law. Finding that a claim under the Spill Act was most simi-lar to an environmental tort at common law, the court imposed asix-year limitations period on Spill Act claims, the same limita-tions period applicable to common law environmental torts.

The Morristown Associates case is significant in severalrespects. First, it reconciles the discrepancy between federal andstate courts on the statute of limitations issue. Second, it eliminates

the possibility of “forum shopping” that can happen when eitherthe plaintiff, or the defendant, attempt to litigate a case in stateor federal court based only upon which court has more favorablecase law. Lastly, it specifically provides that such claims,although subject to a statute of limitations, are also subject to theequitable discovery rule doctrine, which tolls the limitations peri-od until such time as the plaintiff becomes aware of the factsunderlying a potential cause of action. ■

DEFENDING THE COMPELLED USE OF ARB ITRAT ION AGREEMENTS(continued from page 22)

Returning to the present, the FAA language within the Marmetdecision was apparently overlooked by Ohio’s Fifth District Courtof Appeals. In the McFarren decision, the Court of Appeals was notaffected by that statute’s prohibition of selective arbitration.Instead, the court reverted back to the holding and contractualrational in Peters—that wrongful death beneficiaries who did not

sign an arbitration agreement are not bound by that agreement.The court went so far as to hold that Marmet was not controlling,even though that decision was rendered by the United StatesSupreme Court and specifically relied upon the FAA.

So what happens now? It is important to understand that Ohiocourts may not compel arbitration due to a pre-dispute agreement,


DEFENDING THE COMPELLED USE OF ARB ITRAT ION AGREEMENTS(continued from page 28)

even under the guidance of Marmet. Many times the agreementsare not judicially enforced because of perceived complicationscaused by allowing the patient’s representative to arbitrate the personal injury claims, while the beneficiaries proceed to trial on

wrongful death. The Marmet decision provided hope for thedefense bar. The Ohio Supreme Court will likely hear all about it,if and when McFarren comes to their attention. ■

CAN A PLAINTIFF SAFELY WALK AND CHEW GUM(continued from page 23)

no snow on the defect itself. It also indicated that, in arriving at its decision, the lower court had improperly considered the plaintiff’s prior knowledge of the sidewalk as part of its triviality analysis. It stated that the plaintiff’s prior knowledgeraised an issue of comparative negligence, which was for ajury to decide.

In Hall v. Hess Corp., 2013 U.S. Dist. LEXIS 105710 (E.D.Pa. July 29, 2013), the plaintiff tripped and fell when her rightfoot hit an elevated part of the ground at the defendant’s gas station. The defendant filed a motion for summary judg-ment, arguing that the defect measured no more than one inch in depth and, therefore, was trivial. The district courtdenied the motion.

The defendant had argued that the defect was trivial andno actionable negligence followed because the defect onwhich the plaintiff tripped was only five-eighths of an inch deepand no more than one inch deep throughout. The plaintiffattempted to convince the court that factors in addition to thedepth of the defect should be considered in determiningwhether the defect was “obviously trivial.” She noted that thedefect was sixteen inches long and four inches wide and as

well as contained debris and gravel. She pointed out that the defect was also the same color as the pavement surroundingit. She stated that the defect was in an area of heavy foot andcar traffic, requiring business invitees to look for oncomingmotor vehicles while traversing the area. The plaintiff noted thatshe had stepped on a law point in the defect and tripped whenher foot struck a more elevated part. It was not established howlong the defect was in existence prior to the incident.

The court found that, under the above facts, and looking at the evidence in a light most favorable to the plaintiff, it wasunable to conclude that the defect was so “obviously trivial” that it could grant a motion for summary judgment. It decidedthat, considering all the circumstances surrounding the defect,the question as to whether the defect was trivial was best left for the jury.

In sum, courts will consider more than just a simple mea-surement of a defect in their evaluation of whether a defect is“trivial” or not. If the defect is not “obviously” trivial, its gravitywill be an issue of fact to be determined by the jury in light ofthe circumstances of the particular case. ■



HOW MANY OCCURRENCES(continued from page 24)

Fund is liable under § 715 is determined by examining whetherone or more instances of professional negligence caused theharm alleged; the number of victims is not controlling.

Despite such holding, the court still remanded the caseto the Commonwealth Court. It found that a genuine issue ofmaterial fact remained regarding whether there had beenmore than one instance of professional negligence by theinvolved doctor. The plaintiff had alleged that the underlyingmatter involved two separate occurrences, even if assessingby cause, in that there were distinct failures to treat a differ-ent infection as to each child. This factual issue had not beenraised in the earlier trial on negligence.

Because the court left open the possibility that distinctallegations of negligence may constitute separate occurrences,

is it possible that plaintiffs will seek additional limits againststatutory and private insurers by alleging separate and dis-tinct, or serial, allegations of negligence as to the care of eachpatient? Similarly, could a plaintiff contend that a claim ofinformed consent, alleged in conjunction with a claim of negli-gence in operative or post-operative care, constitute separateoccurrences? It appears that the Pennsylvania Supreme Courtspecifically addressed such questions/concerns in the sen-tence which follows its holding: “Additionally, each instance ofnegligence must be associated with a distinct injury.” Further-more, the court noted on several occasions that, ultimately, inmatters involving private insurance, the definition of “occur-rence” within the policy will control. ■

RESERVATIONS OVER RESERVING YOUR RIGHTS(continued from page 26)

Under the second option, the insured may decline the insurer’stender of a qualified defense and furnish its own defense, either prose or through independent counsel retained at the insured’s expense.The insured retains full control over the defense, including the optionof settling the claim pursuant to its own terms. If the insured choosesthis option, and coverage is found, the insured may recover thedefense costs and costs of settlement from the insurer, to the extentthe costs are deemed fair, reasonable and non-collusive. The sig-nificance of the second option is that the insured is not bound by theconsent to settle provision of the policy. So long as the settlement isfair, reasonable and non-collusive, the insurer will be obligated toreimburse its insured.

Thus, the Superior Court decreed that the trial court should havedetermined whether B & W had rejected ANI’s defense and, if so,whether ANI had acted in bad faith in declining to settle or participatein settlement negotiations in the underlying tort action. The case wasremanded for a new trial. A petition for allowance of appeal was filedwith the Supreme Court of Pennsylvania by ARCO and B & W onAugust 9, 2013. Whether the Supreme Court will grant the petitionand review the Superior Court’s opinion is currently uncertain.

DOES THE BABCOCK DECISION BRING PENNSYLVANIACLOSER TO BECOMING A CUMIS COUNSEL STATE?

Since the issuance of Babcock, questions have arisen as to whether this case may bring Pennsylvania one step closer tobecoming a cumis counsel state. The United States Court ofAppeals for the Ninth Circuit recently explained the use and purpose of cumis counsel:

Under California law, when an insurer agrees todefend its insured under a reservation of rights, aconflict exists between the insurer and insured. Inthose instances, the insured has a right to retainindependent counsel to be paid for by the insurer,commonly referred to as “cumis counsel.”

Continental Cas. Co. v. Enodis Corp., 417 Fed. Appx. 668, 671 (9th

Cir. 2011) (citations omitted). The obligation to provide cumis coun-sel is triggered when the insurer issues a reservation of rights on a coverage issue and the outcome of the coverage issue can be

controlled by counsel retained by the insurer for the defense of theunderlying claim against the insured. Sovereign Gen. Ins. Servs.Inc. v. Nat’l Cas. Co., 359 Fed. Appx. 705, 707 (9th Cir. 2009).

Pursuant to the Superior Court’s opinion in Babcock, in Pennsyl-vania, the insured has one of two options—either accept the defenseprovided by the insurer and allow the insurer to retain control over thelitigation, or furnish its own defense at the insured’s expense. Underthe second option, the insured is only reimbursed its defense costs ifit is entitled to coverage and the settlement is deemed fair, reasonableand non-collusive. In a cumis counsel state, such as California, theinsured may demand that the insurance company pay the fees upfront for independent counsel. This is a significant point of distinction.As a result, I do not believe that Babcock moves Pennsylvania closerto becoming a cumis counsel state.

OTHER POTENTIAL ISSUESAnother potential issue that may arise is whether the insurer

is obligated to specifically advise the insured of its right to furnishits own defense at the time the insurer issues the reservation ofrights. While this issue is not specifically discussed in the SuperiorCourt’s opinion, it is something that could become an issue in the future.

What constitutes a fair, reasonable and non-collusive settle-ment may also require further scrutiny and clarity by Pennsylva-nia trial and appellate courts. Calculating a potential verdict, particularly in a class action suit like in Babcock, could be a verychallenging, subjective task.

Whether the insurer has the right to require certain minimumqualifications of the independent counsel could also become anissue in the future. While the Superior Court does not address thisparticular issue, its holding that the insured may choose indepen-dent counsel on its own suggests that the insurer has no controlover the qualifications or experience of the chosen attorney.

It will take time to resolve the questions raised by Babcockand delineate the scope of the opinion. In the near term, the imme-diate question to be determined is whether the Babcock decisionwill be reviewed and upheld by the Supreme Court. ■



THE DISREGARDED DIAGNOSIS(continued from page 27)

Practically speaking, this case law means that, even if thedoctor’s IME report states that he or she doesn’t believe that theclaimant sustained a certain injury that had previously beenaccepted, or if the report lacks a description of injury that is exactlycorrect, a termination petition may still survive. The defense attor-ney must ensure that the medical expert testifies, within a reason-able degree of medical certainty, that: (1) the claimant has fullyrecovered from the specific work-related diagnosis; and (2) the

claimant is fully recovered from any and all injuries that theclaimant might have sustained on a given date. The attorneyshould ask the physician to assume a causal connection and toassume that, if such diagnoses were there, whether the claimanthad fully recovered by the time of the examination. If the doctorcan opine that the claimant has fully recovered, the employercan meet their burden of proof to terminate benefits. ■



FIRM BACK GROUND AND STATE MENT OF PUR POSEMarshall Dennehey Warner Coleman & Goggin, a professional corporation, was founded in 1962. Since that time, our law

firm has realized substantial growth in response to our continually expanding client base. We are exclusively a defense firm, andour pro fes sion al practices encompass a wide spectrum of litigation matters. We apply business discipline to the practice of lawwith resulting cost savings to our clients.

We are 470 attorneys strong and have eighteen offices strategically located throughout Pennsylvania, New Jersey, Delaware,Ohio, Florida and New York. Devoted to defense alone, our firm consists of a number of litigation practice groups, including:

CASUALTY DEPARTMENTThomas A. Brophy, Esquire—Director2000 Market Street, Suite 2300, Philadelphia, PA 19103215.575.2748 • Fax 215.575.0856email: [email protected], Sports and Recreation LiabilityAsbestos and Mass Tort LitigationAutomobile LiabilityAviation and Complex LitigationConstruction Injury LitigationFraud/Special InvestigationGeneral LiabilityHospitality and Liquor LiabilityMaritime LitigationProduct LiabilityProduct Warranty LitigationProperty LitigationRetail LiabilityTrucking & Transportation Liability

HEALTH CARE DEPARTMENTT. Kevin FitzPatrick, Esquire—Director620 Freedom Business Center, Suite 300King of Prussia, PA 19406610.354.8252 • Fax 610.354.8299email: [email protected] Injury LitigationHealth Care Governmental ComplianceHealth Care LiabilityHealth LawLong-Term Care LiabilityMedical Device and Pharmaceutical Liability

PROFESSIONAL LIABILITY DEPARTMENTChristopher E. Dougherty, Esquire—Director2000 Market Street, Suite 2300, Philadelphia, PA 19103215.575.2733 • Fax 215.575.0856email: [email protected] Advocacy and Post-Trial AdvocacyArchitectural, Engineering and Construction Defect LitigationClass Action LitigationCommercial LitigationConsumer and Credit LawEmployment LawEnvironmental & Toxic Tort LitigationInsurance Coverage/Bad Faith LitigationLife, Health and Disability LitigationPrivacy and Data Security LiabilityProfessional LiabilityPublic Entity and Civil Rights LitigationReal Estate E&O LiabilitySchool Leaders’ LiabilitySecurities and Investment Professional LiabilityTechnology, Media and Intellectual Property LitigationWhite Collar Crime

WORKERS’ COMPENSATION DEPARTMENTPeter S. Miller, Esquire—Director2000 Market Street, Suite 2300, Philadelphia, PA 19103215.575.2610 • Fax 215.575.0856email: [email protected] Set-AsideWorkers’ Compensation

Surveys of the nation’s largest firms con sis tent ly show our firm to be a leader in mi nor i ty hiring and advancement.Our continued dynamic growth and the ex pan sion of our client base constitute the best evidence that we are effectively

meeting our cli ents’ business needs and ex pec ta tions. We are very proud of our success. We will strive to continue to be partof yours.

ABOUT OUR PUBLICATION

Our experience confirms that effective risk and claims management must be founded upon timely in for ma tion. Our firmis dedicated to prompt, informative reporting to our clients.

This publication is offered to furnish our views on current court decisions and other matters that may be of in ter est to our clients on topics not spe cif i cal ly related to any particular claim. This publication is pro vid ed free of charge andwith out a pro fes sion al relationship to any particular person, entity or claim. The views ex pressed are those of the authors andare not to be construed or used as professional advice.

Our firm welcomes inquiries, comments and suggestions regarding this publication or other ques tions, which may bedirected to:Peter S. Miller, Esq. Thomas A. Brophy, Esq. Christopher E. Dougherty, Esq.Chairman of the Board &COO President & CEO Executive Committee Member2000 Market Street, Suite 2300 2000 Market Street, Suite 2300 2000 Market Street, Suite 2300Philadelphia, PA 19103 Philadelphia, PA 19103 Philadelphia, PA 19103(215) 575-2610 (215) 575-2748 (215) 575-2733email: [email protected] email: [email protected] email: [email protected]

Defense Digest is also available online at www.marshalldennehey.com.

Our other newsletters, Law Alerts and What’s Hot in Workers’ Comp, are also available on the Publications Pageon our web site.

If you would like to receive your copy of any of our newsletters via e-mail, or if you would like to be removedfrom our mailing list, please contact Terré Montemuro at [email protected].

This newsletter is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legaldevelopments of interest to our readers. This publication is not intended to provide legal advice for a specific situation orto create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on theseand other subjects when called upon.

Defense Digest is published by Marshall Dennehey Warner Coleman & Goggin, a defense litigation law firm with 470attorneys in 18 offices in the Commonwealth of Pennsylvania and the states of New Jersey, Delaware, Ohio, Florida andNew York. In some jurisdictions this publication may be considered attorney advertising.

Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publicationmay be reprinted without the express written permission of our firm.

A Defense Litigation Law FirmPA • NJ • DE • OH • FL • NY

Marshall DenneheyWarner COleman & Goggin



Documents

Defense Digest - Volume 19 No 4 (December 2013) Mar 08 … Digest... · Vol. 19, No. 4 December 2013 PROFILE OF OUR BETHLEHEM, ... (SEC). We have also ... has been 12-2 since January