TT&H eNotes: Liability – July 2018

July 01, 2018

TT&H LAWYERS IN COURT

Attorney Jillian Denicola wins summary judgment in wrongful death case from a slip and fall.

The accident occurred when decedent allegedly slipped and fell due to liquid or some other defect on the floor of Defendant’s produce department. However, witness testimony was that no liquid was present. While the Plaintiff attempted to produce expert testimony that the accident happened due to a wet floor, the Court found an absence of factual support for the opinion. Finding that expert testimony is incompetent if it lacks adequate basis in fact, and that “expert testimony cannot be based solely upon conjecture or surmise,” the Court granted Attorney Denicola’s Motion for summary judgment.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 ext. 8608 or jdenicola@tthlaw.com.

TT&H SPEAKING OUT

TT&H Attorney Joe Holko will be speaking on “Creative Settlements” during Pennsylvania Defense Institute’s 2018 Annual Conference & 50th Anniversary Celebration to be held at the Bedford Springs Resort from July 11 – 13, 2018. Joe is also co-chair of PDI’s Civil Practice and Procedure Committee.

For additional information, please contact Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

TT&H Attorney Ryan Blazure will be speaking on the topics of “Smartphone and Text Evidence” and “GPS and Wearable Device Evidence” as part of NBI’s Personal Injury Evidence: Social Media, Smartphones, Experts and Medical Records continuing education seminar to be held in Scranton, Pennsylvania, on August 23, 2018.

For additional information, please contact Ryan Blazure, at (570) 820-0240 or rblazure@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA | MD | NEW JERSEY | D.C.

PENNSYLVANIA CASE SUMMARIES

McIlmail v. Archdiocese of Phila.

Pennsylvania Superior Court
2018 Pa. Super. 157, No. 1009 EDA 2017
Decided: June 7, 2018

Investigator’s notes and summaries of witness interviews are not protected from discovery, even when investigator is hired by party’s attorney.

Background

Plaintiff sued the Archdioceses of Philadelphia, Monsignor William Lynn, and Father Robert Brennan, alleging sexual abuse to the Plaintiff’s decedent while a minor. During discovery, counsel for the Archdioceses retained a private investigator to interview potential witnesses identified by Archdioceses’ attorneys. The Trial Court permitted discovery of the investigator’s memoranda, notes, and summaries of the interviews under Pa.R.C.P. 4003.3, as non-attorney work product. Essentially, the investigator’s notes of the factual information obtained from witnesses was discoverable.

Holding

The Superior Court affirmed the Trial Court’s interpretation of Rule 4003.3 and concluded that a private investigator is a party representative and afforded protections of the party representative work product only. The intent of Rule 4003.3 is to shield the mental processes of an attorney, which is not infringed by the disclosure of the investigator’s notes that relate solely to the factual information obtained by the investigator. The Court quoted the Explanatory Comment to Rule 4003.3, which states, that “[a]s to any other representative of a party, it protects the representative’s disclosure of his mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Memoranda or notes made by the representative are not protected.” To expand the interpretation of Rule 4003.3 could corrode the clear distinction the Rule makes between the work-product of an attorney and that of a non-attorney representative.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

Nova Home Health Care, Inc. v. Koutroulis

Pennsylvania Superior Court
No. 2610 EDA 2017
Decided: June 7, 2018

Superior Court upholds Trial Court enforcement of settlement agreement, as the parties had entered into a contract despite not reducing their agreement to writing.

Background

Nova was founded in 2012 and Defendant became its president in 2013. In early January 2016, a Nova employee informed Nova’s owner that Defendant had started United Home Health Care in 2014, which directly competes with Nova in the same geographic region. Nova brought suit against Defendant, asserting a number of causes of action sounding in contract. Following suit, the parties entered into settlement negotiations on March 7, 2017. On March 23, counsel for Nova issued a written offer via email to defense counsel containing 10 material terms. On March 29, counsel for Defendant responded and accepted 9 out of the 10 terms, while also adding one additional term. Counsel for both parties thereafter agreed via telephone to remove the terms objectionable to both parties, leaving open only the proposed date of one term. On April 7, counsel for Nova sent an email to counsel for Defendant which memorialized all the terms of the settlement and indicated that the email was being provided for settlement purposes subject to the signing of a mutually acceptable written agreement. That same day, counsel for Defendant informed Defendant of the email and the terms that had been agreed to in order to settle the case.

On April 14, counsel for Defendant, Mr. Ludwig, withdrew his appearance and was replaced by Mr. Cronin. On April 18, Mr. Conin advised counsel for Nova via telephone that Defendant rejected the settlement agreement and would continue to litigate the case. On April 19, counsel for Nova filed a Petition to Enforce Settlement. After an evidentiary hearing, the Trial Court found that the parties had entered into a binding settlement agreement. The Court found that counsel for both parties had settled on all essential terms over the telephone. Defendant appealed, arguing that communications between the parties were provided for settlement purposes and were subject to the signing of a written agreement.

Holding

The Superior Court affirmed enforcement of a settlement. The Superior Court stated that it can review errors of law de novo and can only reverse the Trial Court’s findings of fact if they are predicated on an error of law or are unsupported by the record. The Court found that the Trial Court did not commit an error of law. Thus, the Court could only reverse the lower court’s opinion if its findings of fact were unsupported by the record. The Court affirmed the Trial Court’s holding that the parties had reached agreement on all material terms, one by one, over a series of discussions, with agreement on the outstanding terms occurring during a telephone conversation. Further, the Trial Court noted that it credited the testimony of Nova’s counsel and disbelieved all materially inconsistent testimony. The Court held that the lower court’s findings were supported by the record.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or jshields@tthlaw.com.

Dooner v. State Farm

Pennsylvania Superior Court
2018 Pa. Super. 146
Decided: June 4, 2018

Superior Court upholds summary judgment for insurer where the insured was not in lawful possession of romantic partner’s car during the accident.

Background

Plaintiff Erin Dooner and romantic partner, Jean Fonte, were involved in a one-car accident. Ms. Dooner was arrested as a result and transported to the Monroe County DUI Center. Ms. Fonte then retrieved her vehicle to pick up Ms. Dooner from the DUI Center. As Ms. Fonte was driving home, the couple began to fight. Ms. Dooner grabbed the steering wheel and jerked it, causing the car to swerve into oncoming traffic and collide head-on with a police cruiser driven by Officer Kowalski. Ms. Fonte and Officer Kowalski (along with his wife) filed lawsuits against Ms. Dooner relating to this accident. Ms. Dooner had a motor vehicle insurance policy through State Farm.

State Farm filed a Complaint for Declaratory Judgment, arguing that it had no duty to defend or otherwise provide liability coverage to Ms. Dooner, and State Farm filed a Motion for Summary Judgment, which the Trial Court granted. Ms. Fonte then filed an appeal, arguing that Ms. Dooner’s use of the vehicle fell within the coverage provided by Ms. Dooner’s State Farm policy. The applicable policy provided “coverage for a ‘non-owned’ car if the car is in lawful possession of you or any resident relative.”

Holding

The Superior Court upheld the grant of summary judgment. The Court noted that coverage hinged on whether Ms. Dooner was in lawful possession of the vehicle at the time of the accident. Ultimately, the Court found that Ms. Dooner’s grabbing of the steering wheel did not constitute possession of the vehicle, but rather interfered with Ms. Fonte’s operation of it. The Court further found that even if Ms. Dooner was found to be in possession of the vehicle, such possession would not have been lawful. Therefore, State Farm was not obligated to provide coverage.

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.

Zimmerman v. Alexander Andrew, Inc.

Pennsylvania Superior Court
No. 662 WDA 2017
Decided: June 1, 2018

Superior Court reverses grant of summary judgment to product manufacturer on basis of product misuse.

Background

Plaintiff filed suit against the Defendant manufacturer of a safety harness, claiming the safety harness was defective. Plaintiff had sustained severe injuries when he fell from a tree despite using the safety harness. Discovery revealed that Plaintiff had not read the warning label and instruction sheet and had put the harness on backwards. Defendant filed a Motion for Summary Judgment, arguing that Plaintiff had misused the harness and that his misuse caused the accident. The Trial Court granted Summary Judgment.

Holding

The Superior Court reversed the grant of summary judgment and remanded the case for further proceedings. In doing so, the Court held that it was Defendant’s burden to prove that Plaintiff’s reckless conduct was the sole cause of the accident as a matter of law. The Court held that Defendant had not met that burden because Plaintiff had produced evidence, including an expert report that, if accepted by the factfinder, would establish that the harness was defective and that the deficiencies in design and instructions were a proximate cause of the accident.

Questions about this case can be directed to Kenneth Newman, at (412) 926-1425 or knewman@tthlaw.com.

Gardner v. MIA Prods. Co.

Pennsylvania Superior Court
No. 517 MDA 2017
Decided: May 30, 2018

Superior Court reverses grant of summary judgment in favor of food packing facility holding that there were issues of material fact as to the control of the Plaintiff at the time of injury precluding judgment that he was a borrowed employee.

Background

Plaintiff Gardner was employed by DelVal Staffing, a temporary employment agency. Gardner was assigned to work at MIA as a freezer/packer. His job consisted of removing food from a walk-in freezer to be packed for shipment. While performing these tasks, he fell on a slippery spot in or near the freezer and sustained injuries. He received workers compensation benefits from DelVal and filed a complaint alleging negligence against MIA. MIA moved for summary judgment claiming Gardner was a “borrowed employee” and was under MIA’s control and, therefore, MIA was immune from suit under the Workers Compensation Act.

Holding

In reversing summary judgment, the Superior Court focused on portions of Gardner’s testimony that DelVal transported him to MIA for work, that he believed he was given clothes and equipment from DelVal and that he was given some instruction from a DelVal supervisor. Moreover, DelVal supervisors were present when MIA employees demonstrated how the work was to be performed. Consequently, the Superior Court determined that it was not clear whether Gardner and other DelVal compatriots were under the control of MIA supervisors at the time of injury. Summary judgment was reversed and the matter remanded for trial. In analyzing borrowed servant issues, it may be helpful to completely rule out any control that a “former” employer may have over a Plaintiff so as to address the concerns raised by the Superior Court in this opinion.

Questions about this case can be directed to Hugh O’Neill, at (717) 255-7629 or honeill@tthlaw.com.

Krauss v. Sirko

Pennsylvania Superior Court
No. 1418 WDA 2017
Decided: May 25, 2018

Trial Court properly dismissed a tortious interference with contract claim where there was no evidence the Defendant purposefully acted to harm Plaintiffs’ contractual relationship with a third-party.

Background

A daughter owned a parcel of property in Bedford County adjoining eight parcels of property owned by her mother in neighboring Blair County. The mother and daughter solicited bids to sell all nine parcels together. Plaintiffs’ bid was accepted, but the closing date was delayed while the parties addressed various issues through addendums to the original agreement of sale.

On February 23, 2001, the Bedford County parcel owned by the daughter was sold to Plaintiffs, but closing on the eight Blair County parcels was further delayed due to the need to conduct surveying. At trial, the testimony revealed that daughter agreed to sell the Bedford County parcel because she was pressured by her mother to do so, since Plaintiffs would only purchase all nine parcels together. Several more months went by and closing still did not occur on the eight Blair County parcels owned by the mother.

Plaintiffs filed suit against the mother for breach of contract based on the failure to comply with the agreement of sale. Plaintiffs also filed suit against the daughter, alleging that the sale of the mother’s parcels did not occur because the daughter had tortiously interfered with the contract. Following trial, the Trial Court dismissed the tortious interference claim.

Holding

The Superior Court affirmed. To state a tortious interference claim, a plaintiff must prove, among other things, that the defendant engaged in purposeful action with the intent of harming a contractual relationship. The evidence at trial proved that the daughter agreed to sell her parcel to Plaintiffs—even though she believed she could ultimately garner a higher purchase price—because she wanted to make sure that her mother was able to sell the remaining parcels. The evidence also revealed that the daughter had no involvement in the sale of the remaining parcels once she sold her Bedford County parcel to Plaintiffs. Under those circumstances, the Superior Court found that the daughter did not purposefully act to cause harm to the contractual relationship between Plaintiffs and her mother.

Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

MARYLAND CASE SUMMARIES

Netro v. Greater Baltimore Medical Center, Inc.

United States Court of Appeals for the Fourth Circuit
891 F.3d 522
Decided: June 4, 2018

Plaintiff cannot recover “double damages” under the Medicare Secondary Payer’s private cause of action provision where a monetary judgment payment was delayed but ultimately paid.

Background

On July 22, 2016, Kathy A. Netro, as the personal representative of her deceased mother’s estate, recovered a money judgment totaling $451,956, including $157,730.75 in Medicare conditional payments, against Greater Baltimore Medical Center, Inc. when a state court jury found that her mother’s death was caused by the hospital’s malpractice. On October 31, 2016, the State Trial Court entered a revised final order reducing the judgment amount. Three weeks later, Netro filed a private cause of action lawsuit in the U.S. District Court for the District of Maryland alleging that the hospital’s failure to pay the judgment entitled her to double damages pursuant to 42 U.S.C. 1395y(b)(3)(A), the Medicare Secondary Payer’s private cause of action provision. Thereafter, the hospital paid the judgment 37 days after the State Trial Court entered its revised final judgment. The Federal Trial Court dismissed Netro’s suit; she then appealed to the U.S. Court of Appeals for the Fourth Circuit.

Holding

The Fourth Circuit held that Netro had standing to pursue a private cause of action because a portion of the monies that the hospital owed her were ultimately owed to the federal government. By and through the Medicare Secondary Payer’s private cause of action provision, the federal government effectively assigns its recoupment interest to private citizens. The “double damages” provision provides an incentive to enforce the government’s interest. Standing is determined at the beginning of the federal lawsuit and at that time the hospital had not paid the state court judgment. However, the private cause of action provision only applies when the payer “fails” to pay the funds owed to Medicare. A defendant becomes responsible for conditional payments on the day the state court issues its final judgment. Under Maryland law, a properly filed final judgment supersedes the prior judgment. Therefore, the payment was not due until the state court issued its revised final judgment order. Further, there can be no “failure” to pay once payment had been received. Therefore, even if a Medicare conditional payment is delayed, double damages are not available once the underlying judgment is paid.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.

NEW JERSEY CASE SUMMARY

Doremus v. DeLorenzo

New Jersey Superior Court, Appellate Division

No. A-5578-16T3

Decided: May 31, 2018

Superior Court affirms grant of summary judgment to property owners who were not liable for condition of abutting sidewalk.

Background

Plaintiff Doremus alleged she sustained personal injuries while walking on the sidewalk adjacent to Defendants DeLorenzo’s Mount Ephraim, New Jersey residence owned since 1990. Doremus claimed that Mount Ephraim Borough’s ordinance requires abutting property owners to maintain the sidewalk and that failing to do so imposes liability on the property owner. The Trial Court granted DeLoranzo’s Motion for Summary Judgment. Doremus appealed.

Holding

The Superior Court affirmed and held that the municipal ordinance relied upon by Doremus could not impose tort liability upon property owners, such as DeLorenzo. The Court noted that property owners were not liable for injuries caused by any condition of abutting sidewalks. Since DeLorenzo never attempted to repair or obstruct the sidewalk, DeLorenzo was protected by common-law public sidewalk immunity.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.

DC CASE SUMMARY

Ludwig & Robinson, PLLC v. BiotechPharma, LLC

District of Columbia Court of Appeals
No. 15-CV-1214
Decided: June 7, 2018

Res judicata does not bar fraud in the inducement and related claims where Plaintiff prevailed on breach of contract in prior arbitration.

Background

Biotechpharma, LLC (BPT) retained Ludwig & Robinson, PLLC (L&R) for advice and representation concerning intellectual property claims including extensive motions, deposition, and interview work domestically and internationally. The engagement letter required payment of legal bills upon receipt, and reserved L&R’s right to withdraw if payment was not made. The two parties modified their arrangement twice to defer portions of L&R’s hourly rate, but BTP failed to pay most of its bills after representing that it would do so. L&R eventually brought suit for breach of contract, fraud, and conspiracy against BTP and its fellow Defendants. The fraud and conspiracy counts were stayed while the parties proceeded to arbitration before the Attorney-Client Arbitration Board (ACAB), which awarded L&R just over half of its claimed legal fees. The Trial Court then held that the arbitration award precluded additional recovery.

In dismissing the fraud and conspiracy counts, the Trial Court reasoned that the wrong which L&R sought to correct was nonpayment of legal fees, for which it had recovered in arbitration, and that res judicata barred all related claims, including those not before the ACAB. The Trial Court also held that the fraud and conspiracy claims were dependent on the contract claim, not independent torts.

Holding

The Court of Appeals distinguished the duties arising from a contractual relationship from the duty not to mislead a party to induce it to enter a contractual relationship, as the latter duty cannot stem from a contract that has not yet be formed. The Court noted that when L&R threatened to exercise its right to withdraw, representatives of BTP made false statements about available sources of funding to pay legal fees to induce L&R to continue its representation. Furthermore, the ACAB had no jurisdiction over the fraud and conspiracy claims for res judicata purposes. Because there was a potential separate basis independent of the contract upon which L&R’s fraud and conspiracy claims could stand, the Court reversed and remanded the case for further proceedings.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.