eNotes: Liability – August 2019
July 31, 2019
TT&H LAWYERS IN COURT
Attorney Candace N. Edgar wins jury trial for snow and ice contractor in negligence action involving alleged hills and ridges in parking area of power plant.
On July 10, 2019, TT&H Attorney Candace Edgar won a defense verdict for a snow and ice contractor following a three-day jury trial in the Berks County Court of Common Pleas. The Plaintiff, a 60-year-old security guard working at a power plant, claimed that she injured her left shoulder after slipping and falling on ice that had been allowed to unreasonably accumulate around the vehicle used by the security guards to make their rounds of the property. Plaintiff claimed that she did not see the ice because a fresh layer of snow covered it. The defendant snow and ice contractor admitted to putting salt down around the security guard vehicle, but claimed it did so voluntarily, not because of any contractual obligation. No dispute existed that the security vehicle was unmoved on the date of Plaintiff’s slip and fall, so the snow and ice contractor argued that, even if it had a contractual duty to plow and salt the area around the vehicle, it was extremely limited in what it could do with the vehicle still parked there. After deliberating, the jury found no negligence on the part of the snow and ice contractor, but found both the power plant and Plaintiff negligent, apportioning 60 percent of the negligence to the power plant and 40 percent to Plaintiff.
Questions about this case can be directed to Candace Edgar, at (717) 237-7103 or cedgar@tthlaw.com.
TT&H Attorney Jillian Denicola wins dismissal of Joinder Complaint.
On July 9, 2019, U.S. District Judge Richard Caputo granted Attorney Jillian Denicola’s motion to dismiss a third party complaint. The pleading sought contribution and indemnity and was filed against a local attorney and building owner who rented space to another attorney, the Plaintiff in the case. The rental agreement included a shared conference room. While the Plaintiff was using the shared conference room, a chair collapsed and resulted in an alleged L5-S1 herniation, which ultimately required surgery. Plaintiff also alleged a peroneal nerve injury, chronic pain and foot drop syndrome. Plaintiff sued the retailer who allegedly manufactured and sold the office chair. Counsel for the retailer then joined Jillian’s client for contribution and indemnity. Jillian was able to have the complaint dismissed, arguing that the third party complaint failed to adequately allege sufficient facts supporting either the claim for contribution or indemnification. Judge Caputo agreed, finding that the joining Defendant did not sufficiently allege that the Third Party Defendant was a tortfeasor to begin with, let alone a joint one, thereby precluding liability for contribution. Judge Caputo further found that joining Defendant failed to state a claim for indemnification, as there were no facts which plausibly indicated that the joining Defendant had a relationship with the third party Defendant which would legally compel it to pay for the joining Defendant’s tortious acts.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 ext. 8608 or jdenicola@tthlaw.com.
TT&H Attorney Jillian Denicola wins appeal from the entry of summary judgment in premises liability action.
On July 30, 2019, the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of a hotel represented by TT&H Attorney, Jillian Denicola. The claim against the hotel arose out of a trip and fall that occurred when the Plaintiff was exiting the restaurant located on the hotel’s premises. The lower court granted summary judgment, finding that there was simply no evidence connecting Plaintiff’s fall to any alleged dangerous conditions on the property, highlighting the fact that Plaintiff testified that she merely “missed a step.” See https://www.tthlaw.com/tth-attorney-jillian-denicola-wins-summary-judgment-in-trip-and-fall-incident. In affirming the entry of summary judgment for Attorney Denicola’s client, the Superior Court agreed that the Plaintiffs failed to establish proximate causation between any alleged breach of duty by the hotel and the Plaintiff’s fall.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 ext. 8608 or jdenicola@tthlaw.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
Oberdorf v. Amazon.com, Inc.
United States Court of Appeals for the Third Circuit
No. 18-1041, 2019 U.S. App. LEXIS 19982
Decided: July 3, 2019
The Third Circuit finds that Amazon.com is a “seller” for purposes of the Second Restatement of Torts § 402A and thus, under Pennsylvania law, can be strictly liable for consumer injuries caused by defective goods purchased on the company’s website, even though the goods at issue were sold on the website by a third-party vendor.
Background
The Plaintiff, Heather Oberdorf, was permanently blinded in one eye when a retractable dog leash broke from her dog’s collar and recoiled into her face. She had purchased the dog leash on Amazon from a third-party vendor. Plaintiff sued Amazon for strict liability and negligence, due to both a failure to warn and design defect. Amazon defended against these claims on the basis that it did not sell the dog leash, and only facilitated the purchase from another party on its website. The District Court agreed with Amazon and granted summary judgment in its favor on two bases. First, the Court found that Amazon did not qualify as a seller under Pennsylvania law and Section 402A of the Second Restatement of Torts. Second, the Court found that Plaintiffs claims were barred against Amazon under the Communications Decency Act (“CDA”) because Plaintiff was seeking to hold Amazon liable for a failure to add or edit adequate warnings in its role as the online publisher of a third party’s content.
Holding
On appeal, the Third Circuit held that (1) Amazon is a “seller” for purposes of § 402A of the Second Restatement of Torts and thus subject to the Pennsylvania strict products liability law, and (2) Oberdorf’s claims against Amazon are not barred by § 230 of the CDA except as they rely upon a “failure to warn” theory of liability. The Third Circuit found that the degree of control Amazon retained over the entire process third-party vendors took to sell products on its website warranted a finding that it was a seller under § 402A. Amazon was the only member of the marketing chain available to the Plaintiff for redress, the company was fully capable of removing unsafe products from its site, and Amazon was in a better position to police the conduct of its third-party vendors due to an on-going relationship. The Court also found that claims based on a failure to provide adequate warnings regarding the use of the dog collar were barred by § 230 of the CDA. Amazon, as a computer service provider, was protected by the safe harbor provisions of the CDA. It could not be held liable for any failure to add or edit the descriptions and warnings about products sold by third-parties on its site. The Court thus affirmed the dismissal under the CDA of Plaintiff’s failure to warn claims, and vacated and remanded the remainder of the judgment of the District Court.
Amazon is currently seeking en banc review of the panel’s 2-1 decision on the grounds that the majority’s finding that Amazon was a seller under Pennsylvania law was not grounded on clear and unmistakable precedent from any Pennsylvania court.
Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or knewman@tthlaw.com, or to Richard Murphy, at (412) 926-1443 or rmurphy@tthlaw.com.
Chandler v. L’Oreal USA, Inc.
United States Court of Appeals for the Third Circuit
No. 18-3227, 2019 U.S. App. LEXIS 17604
Decided: June 12, 2019
In a non-precedential decision in a consumer’s product liability action, the Third Circuit affirmed the entry of summary judgment, finding that the product contained an adequate warning which the plaintiff did not heed, and plaintiff could not prove the product was defective.
Background
The Plaintiff, Kim Chandler, sued L’Oréal USA, Inc. and its subsidiary for scalp damage she suffered after applying an at-home hair relaxer. She alleged that the product was defective for inadequate safety warnings and due to a manufacturing defect. She also made a claim for breach of implied warranty. It was undisputed, however, that the product came with a warning regarding the exact injury at issue. The District Court thus granted summary judgment for L’Oréal because Chandler failed to heed the product warnings or to present sufficient evidence of a product defect.
Holding
On appeal, the Third Circuit affirmed the judgment of the District Court. Plaintiff conceded she failed to follow the safety warnings on the product, but argued that a consumer would be unaware of the risk of injury after reading the warnings. The Court disagreed because “where a warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Further, Plaintiff lacked any direct evidence of a manufacturing defect and was only relying on the circumstantial evidence of her injuries, which the Court found to be insufficient to show a defect where the more likely explanation for Plaintiff’s injuries was her failure to heed warnings and her abnormal use. The Third Circuit thus affirmed the grant of summary judgment in favor of L’Oréal and its subsidiary.
Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or knewman@tthlaw.com, or to Richard Murphy, at (412) 926-1443 or rmurphy@tthlaw.com.
PENNSYLVANIA CASE SUMMARIES
Mitchell v. Shikora
Pennsylvania Supreme Court
No. 55 WAP 2017
Decided: June 18, 2019
Evidence of surgical risks and complications is admissible in medical negligence cases involving not only informed consent claims, but also standard of care claims.
Background
In 2017, in the case of Mitchell v. Shikora, 161 A.3d 970 (Pa. Super. Ct. 2017), the Pennsylvania Superior Court addressed the admissibility of evidence concerning surgical risks and complications. The Court found that such evidence was inadmissible in a “standard of care” medical negligence case where a lack of informed consent was not also being claimed. The Mitchell action involved a claim against Dr. Shikora, who had performed a laparoscopic hysterectomy on Mitchell and severed her bowel during the procedure. Mitchell filed a malpractice lawsuit and, at trial, sought to exclude evidence of surgical risks/complications. The Trial Court allowed evidence as to whether the bowel injury was a known risk of the hysterectomy, but agreed to exclude evidence regarding the lack of consent as no informed consent claim had been made by Mitchell. Following a defense verdict, Mitchell appealed to the Superior Court. The Superior Court agreed with Mitchell, finding that in the absence of an informed consent claim, evidence of known risks/complications of a surgical procedure was irrelevant and tended to confuse/mislead the jury.
Holding
Dr. Shikora appealed to the Pennsylvania Supreme Court. In the opinion reversing the Superior Court, Justice Todd found error with the reasoning that evidence of surgical risks and complications was irrelevant to standard of care issues. It was noted that risks and complications evidence may help clarify the applicable standard of care and could help provide a complete picture of that standard and whether the standard of care was breached. Risks and complications evidence was labeled helpful (rather than misleading) by assisting jury members in determining both the standard of care and whether the physician’s conduct deviated from the standard of care. The Pennsylvania Supreme Court acknowledged that injuries can occur during surgical procedures “even in the absence of negligent conduct,” and therefore, evidence of surgical risks and complications can be relevant to establish the applicable standard of care.
Questions about this case can be directed to Carrie Hyams, at (717) 441-7068 or chyams@tthlaw.com.
Valentino v. Phildelphia Triathlon, LLC
Pennsylvania Supreme Court
No. 17 EAP 2017
Decided: June 18, 2019
By an equally divided court, the assumption of the risk clause of a participant’s release was upheld as a bar to a wrongful death action arising from a drowning during the swimming portion of a triathlon.
Background
A triathlete electronically signed a release in order to participate in an event, which included a swim in the Schuylkill River. The release form contained language whereby he expressed his understanding of the risks and dangers posed by participating in the event. The form had an assumption of the risk clause which transferred to him all risks and responsibilities for any damages, liabilities, losses, or expenses. There also was an indemnity clause calling for him to “indemnify, defend and hold harmless each of the Released Parties from any such Liability which . . . may be incurred as a result of such claim.” Unfortunately, the participant drowned during the swimming portion of the event, prompting a wrongful death action.
The action was dismissed at the summary judgment stage. The Court relied upon the release. After an appeal was taken, Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. Ct. 2013), held that a compulsory arbitration provision of a nursing home admission agreement would not be effective vis-à-vis a wrongful death action because the decedent’s heirs were not signatories to the contract. It was argued that Pisano would nullify the release because the heirs of the decedent-triathlete likewise did not sign and thus were not bound by the release. Although the Superior Court was divided on the effect of the release, it nonetheless affirmed the summary judgment because the assumption of the risk provisions destroyed any legal duty that the event organizers may have had to the participants.
Holding
The Supreme Court took the case to address the question of whether the express assumption of the risk agreement served as a defense to the wrongful death action. It divided evenly on the issue, as one member of the Court (Justice Wecht) did not participate. Thus, the Superior Court decision was affirmed by an equally divided court. Of note, Justice Wecht was a member of the original panel that heard the case in the Superior Court, where he had voted against the use of the release agreement as a defense to the wrongful death action. How he might have voted on the issue before the Supreme Court is not known, though future litigation involving releases of this sort seems at least plausible, if not likely.
Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.
Degliomini v. ESM Productions, Inc.
Pennsylvania Commonwealth Court
2019 Pa. Commw. Unpub. LEXIS 338, 2019 WL 2587696
Decided: June 25, 2019
An exculpatory release signed by a participant in a charity bicycle ride did not violate any public policy and, thus, it afforded a complete defense to an action to recover for his injuries.
Background
Plaintiff electronically signed an exculpatory release in order to participate in a charity bicycle ride. He was injured during the event. The city, which was one of the sponsors of the event, raised the release as a defense. Inexplicably, the Trial Court refused all evidence of the release and a multi-million dollar verdict was returned. Post-trial motions were unsuccessful. However, the Commonwealth Court reversed on the basis of the release.
Holding
The exculpatory release was a private agreement between the bicycle rider and the organizers of the event. The release did not concern any essential services but, instead, merely governed a voluntary recreational activity which the rider was not required to enter. Because the event was held on public streets, the City’s involvement was akin to that of a race track owner hosting a race. Thus, there was no contravention of public policy when the rider agreed to absolve the City of liability for the use of the roads for this specific endeavor.
Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.
Rahman v. Foster Township
Pennsylvania Commonwealth Court
No. 1099 C.D. 2018
Decided: June 7, 2019
Trial Court erred by not reinstating MJD appeal where appellees failed to file a Praecipe to strike appeal before the untimely complaint was filed.
Background
On April 13, 2018, a pro se Plaintiff filed a notice of appeal from an adverse judgment issued in Magisterial District Court. By virtue of Rule 1004A of the Rules of Civil Procedure for such courts, the Plaintiff was required to file her complaint within 20 days after filing her notice of appeal. The Plaintiff did file a complaint, though not until May 4, 2018, the 21st day after taking her appeal.
On May 8, 2018, the Defendants filed Praecipes to strike the appeal. These Praecipes were filed pursuant to Rule 1006, which allows for the striking of an appeal where the plaintiff fails to timely file a complaint after taking an appeal. Pursuant to these Praecipes, the Prothonotary struck the appeal. Thereafter, on May 18, 2018, the Plaintiff filed a Motion to open judgment. The Plaintiff also filed a Motion to dismiss the Praecipes striking her appeal. Both motions were denied.
On further appeal to the Commonwealth Court, Plaintiff argued that the Lower Court erred by not opening the judgment and/or dismissing the Praecipes striking the appeal. The Plaintiff argued that in order to strike an appeal from a judgment of a magisterial district court pursuant to Rule 1006, the rule must be invoked before the complaint is filed. Plaintiff claimed that because she filed her complaint before Defendants filed their Praecipes to strike the appeal, the Defendants’ filings were a nullity and Rule 1006 could no longer be invoked, even if the complaint was not timely filed.
Holding
In reversing and remanding the Lower Court’s Order, the Commonwealth Court observed that Rule 1006 is not self-enforcing; rather, it becomes the duty of the appellee, upon the default of the appellant, to Praecipe to strike the appeal before the untimely complaint is filed. In other words, once the appellant files a complaint, it is then too late for the appellee to seek relief under Rule 1006. Instantly, Plaintiff filed her complaint on the 21st day after taking her appeal. Defendants, however, did not file their Praecipes to strike the appeal until four days after the Complaint had been filed. By then, the Praecipes had no legal effect and the Lower Court committed an error of law when it did not reinstate Plaintiff’s appeal.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.
Newsuan v. Republic Servs. Inc.
Pennsylvania Superior Court
2019 Pa. Super. 196
Decided: June 20, 2019
Counsel’s communications with a client’s employees and notes thereof were privileged, but the facts developed during interviews of the employees were discoverable by Plaintiff.
Background
Plaintiff was working for her non-defendant employer as a recycling center facility sorter when a front-end loader crushed her leg, which caused her to undergo a knee amputation. As a result, Plaintiff commenced a personal injury action against defendants and alleged that their negligence as owners, supervisors, or operators caused her injuries. During discovery, Plaintiff requested that Republic Services produce contact information and any documented statements of some sixteen employees who were working at the recycling center on the day of her injury. Counsel for Republic Services (“Corporate Counsel”) did not produce the requested information, claiming it was privileged. In response, Plaintiff filed a motion to compel the information.
The Trial Court conducted a hearing on the motion. Corporate counsel invoked attorney-client privilege with respect to communications made during his interview with each employee and explained that each of the employees agreed to be represented by corporate counsel. Plaintiff argued that counsel’s invocation of the privilege unlawfully obstructed her access to evidence. The Trial Court agreed with Plaintiff and directed Republic Services to produce all known personal and professional information about the employees and all written communications and notes of oral interviews occurring prior to counsel’s offer of representation.
Holding
The particular communications shared between Republic Services’ employees and corporate counsel fell within Republic Services’ scope of attorney-client privilege and therefore the Trial Court’s order requiring Republic Services to disclose those communications was vacated. However, the Court held that Plaintiff “may seek ex parte interviews with the employees — to the extent they are not represented by counsel — regarding their factual observations relevant to the incident in question in the same manner as corporate counsel has, and she may thereafter seek further discovery of available facts through depositions and interrogatories . . . .” Counsel’s notes regarding his communications with the employees were protected by the work product doctrine, which precludes disclosure of mental impressions, conclusions and opinions respecting the value/merit of a claim or defense or respecting strategy.
Questions about this case can be directed to Chloe Gartside, at (215) 564-2928 or cgartside@tthlaw.com.
MARYLAND CASE SUMMARY
Gables Constr. v. Red Coats, Inc.
Maryland Court of Special Appeals
September Term, 2017, No. 907
Decided: May 10, 2019
Contractual waivers of subrogation do not shield a contracting party from third-party contribution and direct liability under the Maryland Uniform Contribution Among Joint-Tortfeasors Act.
Background
Upper Rock, Inc. (“Upper Rock”) was the project owner of an apartment building. Upper Rock entered into a Prime Contract with a contractor, Gables Construction (“GCI”), for the construction of a complex that included Building G, a 139-unit apartment building. Gables Residential Services Incorporated (“GRSI”), the owner of GCI, contracted with Red Coats pursuant to a Vendor Services Agreement (“VSA”), for the provision of fire watch and security services for the Project. On or about the early morning hours of April 1, 2014, a fire damaged the building. The cause of the fire was improperly placed heaters in the building. Upper Rock sued Red Coats and Tamika Shelton, the Red Coats’ security guard on duty at the time of the fire. Red Coats settled with Upper Rock for $14 million. After the settlement, Red Coats and Shelton sought contribution from GCI as part of a previously filed third-party complaint.
GCI pointed to a waiver of subrogation clause in the VSA, and filed a motion for summary judgment, arguing that the VSA insulated it, as a named additional insured, from Red Coats’ third-party complaint. Summary judgment was denied and a jury determined that GCI’s negligence was a proximate cause of the building fire and that GCI was a joint tortfeasor with Red Coats. Accordingly, the Circuit Court awarded $7,000,000.00 to Red Coats. GCI appealed, presenting a question of first impression, that being whether, and under what circumstances, a contractual waiver can shield a contracting party from both third-party contribution and direct liability. GCI argued that Red Coats’ claim for contribution was barred by the waiver of subrogation in the Prime Contract. Red Coats responded that neither it nor Shelton were parties to that contract.
Holding
The Court of Special Appeals held that a contractual waiver of subrogation does not protect a party from third-party contribution and direct liability under the Maryland Uniform Contribution Among Joint Tort-Feasors Act. It explained that the waiver of subrogation is only relevant to the contract and does not “spring from the relationship of the parties.” Therefore, the Court affirmed the Circuit Court’s rulings and held that the contractual waiver in the VSA and the settlement agreement controlled the relationship between GCI and Red Coats.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.
NEW JERSEY CASE SUMMARY
Estate of Narleski v. Gomes
New Jersey Superior Court, Appellate Division
No. A-5144-17T4, 2019 N.J. Super. LEXIS 82
Decided: June 6, 2019
Superior Court affirms Trial Court’s entry of summary judgment on the grounds that no duty existed as to homeowners or occupants to prevent underage individuals from consuming alcohol. However, the Court ruled that, going forward, any underage adult would owe a duty under the common law to any party injured by an intoxicated underage adult to prevent that person from consuming alcohol in the duty-bound individual’s residence.
Background
Defendant liquor store appealed from the entry of summary judgment to third-party homeowner Defendants. The action arose from an incident in which Defendant liquor store sold alcohol to Plaintiff’s underage decedent without checking his identification. Decedent and his friends, all underage adults, assembled at the home of one of the friends and consumed the alcohol in the host’s bedroom. Decedent left the house as a passenger in the car of one of his intoxicated friends, who subsequently lost control of the vehicle and flipped it, killing Plaintiff’s decedent.
Plaintiff sued the car driver and its owners for negligence and sued Defendant liquor store under the Dram Shop Act. The Defendant liquor store filed a third-party complaint against third-party Defendants, the friend who hosted the party and his parents. Third-party Defendants moved for summary judgment. The Trial Court granted the motion, ruling that third-party Defendants had not breached any established legal duty.
Holding
On appeal, the Defendant liquor store encouraged the Court to recognize a legal duty to prevent underage individuals from consuming alcohol in one’s home. The New Jersey Appellate Division affirmed the entry of summary judgment to the third-party Defendants. The Court ruled that, under the circumstances, the third-party Defendant parents had no statutory or common law duty to prevent their adult underage son from allowing his underage friends to consume alcohol in their home without their knowledge or consent. The Appellate Division further ruled that the son similarly had no duty to prevent his friends from consuming alcohol in this home. However, the Court ruled that, going forward, any underage adult would owe a duty under the common law to any party injured by an intoxicated underage adult to prevent that person from consuming alcohol in the duty-bound individual’s residence. The Court held that imposing such a duty upon underage adults represented a logical extension of existing law and public policy.
Questions about this case can be directed to Michael Bishop, at (908) 574-0510 or mbishop@tthlaw.com.
DC CASE SUMMARY
Brooks v. Rosebar
District of Columbia Court of Appeals
No. 16-CV-1101
Decided: June 27, 2019
D.C. Court of Appeals reverses dismissal based upon settlement agreement with pro se party and clarifies requirements for a meeting of the minds in settlement discussions.
Background
Pro se Plaintiff David Brooks (“Brooks”) sued Michael and Erin Rosebar (“Rosebars”) for defamation in 2014 after they allegedly posted defamatory online reviews of Mr. Brooks’ security camera business. In the seven years prior to Brooks’ lawsuit against the Rosebars, Brooks repeatedly attempted to collect on a $30,000 judgment that he had obtained against the Rosebars arising from their failure to repay a loan. For several years as Brooks attempted to collect his judgment, Mr. Rosebar filed numerous lawsuits against Brooks, which ultimately led to an Order from the D.C. Superior Court requiring Mr. Rosebar to obtain leave of court before filing any actions against Brooks. Thereafter, numerous negative reviews of Brooks’ business appeared online. Brooks then sued the Rosebars for defamation and alleged that the Rosebars had posted the reviews, which harmed his business and ultimately caused him to close the business.
During the defamation suit, the Superior Court entered a default against Ms. Rosebar, but Brooks did not seek a default judgment. At a motions hearing, Brooks and the Rosebars’ attorney agreed to a settlement on the record, in open court. At that hearing the Rosebars’ attorney erroneously told the Court that a judgment had been entered against Ms. Rosebar and offered to settle the defamation suit for $800. Brooks confirmed that he would accept the settlement and dismiss the defamation suit against both Rosebars. The Court ordered the parties to return in a week to confirm the settlement and dismiss the case. Brooks then sent an ex parte letter to the Court stating that he had agreed to the settlement but had “made a mistake.” At the next hearing, the Court told Brooks that he would “have to live with [his] mistake,” enforced the agreement, and dismissed the defamation suit. Brooks appealed.
Holding
On appeal the D.C. Court of Appeals found insufficient evidence of a “meeting of the minds,” as the parties had a dispute over whether the settlement would dismiss the suit against just Mr. Rosebar, or against both of the Rosebars. Further, the Court of Appeals found that because the Rosebars’ attorney told the Court that a judgment had been entered against Ms. Rosebar, it appeared that he only had authority to negotiate on behalf of Mr. Rosebar. Although Brooks stated on the record that he would dismiss the case against both Rosebars, his statements at the subsequent hearing, together with possible confusion over who the Rosebars’ attorney represented when the agreement took place, were enough to find that there was insufficient evidence of a “meeting of the minds.” The Court of Appeals reversed and found there was no valid, enforceable settlement agreement. The dismissal was thus reversed and the matter remanded for further proceedings.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.
VIRGINIA CASE SUMMARY
Cully v. Smith
Fairfax County Circuit Court
2019 Va. Cir. LEXIS 228
Decided: July 9, 2019
Signing of a release must be made an express term of settlement offer in order to be enforceable.
Background
Plaintiff and Defendant were involved in a car accident in 2014. After suit had been filed, counsel for the parties engaged in settlement negotiations by email. The last email sent by defense counsel stated that it was the last and final offer and set forth the amount of the offer and a date and time certain by which the offer had to be accepted. The email was silent about a release. Plaintiff’s counsel accepted the offer by email. Upon receipt of the settlement check, defense counsel informed plaintiff’s counsel that the check would be sent upon receipt of a fully executed release. Plaintiff refused to sign the release, stating that the only terms of the settlement were those expressed in defense counsel’s final email.
After reaching a stalemate on the issue, the parties filed cross-motions to enforce settlement, seeking to enforce the email exchange as a settlement agreement pursuant to each counsel’s respective understanding of the terms. Plaintiff argued that the email exchange constituted a clear and unambiguous contract, such that the Court’s analysis was limited to the four corners of the document. Defendant argued that the email exchange reflected an agreement in principle and that it was clear that the parties entered into the “customary agreement” of payment of the settlement amount upon exchange of a release and dismissal order.
Holding
Since the email from defense counsel was clear, definite and explicit, leaving nothing open for further negotiation, and because the desire for Plaintiff to sign a release was not actually communicated to Plaintiff or his attorney until after the offer was accepted, the release was not a term of the settlement agreement and could not be enforced.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or lconn@tthlaw.com.