TT&H eNotes: Liability – March 2018

FIRM NEWS

The Legal Intelligencer publishes cyber security article by TT&H Attorneys.

TT&H Attorneys Joe Cardile and Jeff Criswell were published in the February 8, 2018 online edition of The Legal Intelligencer, Pennsylvania’s premier legal publication. Their article, “Counseling Clients in the Aftermath of the Uber Data Breach,” discusses the 2016 data breach suffered by ride-sharing giant, Uber, which was not disclosed to the public until late 2017, the reaction by private litigants and government authorities, and the role of attorneys in counseling clients in preventing, reacting to, and mitigating the effects of data breaches.

Questions about the article, and cybersecurity issues in general, can be directed to Joe Cardile, at (410) 653-0460 or scardile@tthlaw.com, or to Jeff Criswell, at (412) 926-1443 or jcriswell@tthlaw.com.

E. Meredith Wolak, Esquire is now licensed to practice law in the District of Columbia.

Attorney E. Meredith Wolak is now licensed to practice law in the District of Columbia. Meredith is an attorney in the firm’s Baltimore, MD office and will now support the firm’s Washington, DC office as well. Meredith represents clients in the practice areas of general liability, labor & employment law and workers’ compensation cases.

Meredith can be contacted at (410) 653-0460 ext. 8720 or mwolak@tthlaw.com.

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TT&H LAWYERS IN COURT

Joe Holko wins defense verdict for prominent law firm.

After nearly six years of litigation, a jury in Columbia County returned a verdict in favor of a prominent law firm, finding it was not negligent in connection with a trip and fall on a crooked sidewalk in front of the law offices. The sidewalk had been made irregular by a combination of tree root growth, frost heave, and recent municipal construction that changed the profile of curbing near the old sidewalk.

Plaintiff claimed that her fall resulted in injuries to both knees, requiring arthroscopic surgery to repair damage to her menisci. Plaintiff also underwent an arthroplasty to the basal joint of her right hand, which then developed RSD/CRPS-like symptoms, requiring acupuncture and opiates. Plaintiff appeared at trial with a cane and orthotics on her hand/wrist and knee. Her orthopedic surgeon testified that all of her surgeries were caused by the fall. After two days of trial, the jury disagreed with the Plaintiff, finding that the Defendant-law firm not negligent.

Questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

Renita Collins’ tenacity wins summary judgment and defeats an appeal in a commercial policy coverage case.

The Maryland Court of Special Appeals dismissed an appeal and affirmed a summary judgment TT&H-Baltimore Attorney Collins obtained in the Circuit Court for Anne Arundel County. The summary judgment dismissed claims brought by a business owner and former insured, wherein he alleged that his insurance company failed to properly notify him that his coverage was cancelled. Although the former insured failed to pay his premium for a renewal term, he continued to perform work as a plumber, obtained certificates of liability insurance from his broker, and was alleged to have caused nearly $100,000 worth of damage to his client’s home. The Trial Court granted summary judgment, finding the carrier was not required to provide the former insured with coverage in the absence of payment. Subsequently, Ms. Collins defeated the Notice of Appeal filed by the former insured because it was filed prematurely.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 ext. 8719 or rcollins@tthlaw.com.

Joe Cardile wins summary judgment in action claiming serious injuries arising from a dog attack.

In connection with a dog attack resulting in serious injuries, TT&H Attorney Joe Cardile won summary judgment for a defendant-landlord. The incident occurred while the Plaintiff was visiting a friend’s townhome, during which time a large Labrador Retriever allegedly escaped from the home of its owner and “aggressively lunged” at the Plaintiff, causing the Plaintiff to slip and fall, shattering his right elbow. The Plaintiff filed suit against the dog’s owner, who was a resident of the townhome, as well as the landlord of the townhome. Representing the landlord, Attorney Cardile sought judgment as a matter of law because the record confirmed the landlord was unaware of the specific dangerous propensities of the dog that allegedly resulted in injuries to the Plaintiff.

Ruling in favor of Attorney Cardile, the Court entered summary judgment in favor of the landlord. The Court found that the undisputed evidence of record proved that the landlord had no prior knowledge of the dog’s alleged dangerous propensities. Absent actual or constructive notice of such dangerous propensities, as a matter of law, the landlord could not be held liable for the Plaintiff’s injuries.

Questions about this case can be directed to Joe Cardile, at (410) 653-0460 or scardile@tthlaw.com.

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CLIENT ADVISORY

PENNSYLVANIA CLIENT ADVISORY

Pennsylvania Superior Court revisits Tincher and its definition of product defect.

In 2014, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) (“Tincher I”). In Tincher I, the Supreme Court overruled its prior problematic decision in Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978). Tincher I criticized Azzarello for “approv[ing], and thereby essentially requir[ing], instructions which informed the jury that, for the purposes of a supplier’s strict liability in tort, ‘the product must . . . be provided with every element necessary to make it safe for its intended use.’” Tincher I, 104 A.3d at 376. The Supreme Court remanded the case to the Trial Court stating, in relevant part, “in light of the decision to overrule Azzarello, questions remain regarding whether Omega Flex should benefit from the application of our Opinion upon remand . . . .” Tincher I, 104 A.3d at 432.

On remand to the Trial Court, Omega Flex filed a renewed motion for post-trial relief, wherein it requested a new trial based, among other things, on the Court erroneously charging the jury as per Azzarello’s language that a product supplier is a guarantor of its product and that the product must be provided with every element to make it safe for its intended use. The Trial Court denied the motion. Omega Flex then appealed the Trial Court’s decision to the Pennsylvania Superior Court.

In “Tincher II,” ___ A.3d ___, No. 1285 EDA 2016 (Pa. Super. Ct. Feb. 16, 2018), the Superior Court ruled that the Trial Court committed error in using the Azzarello jury charge. The Superior Court stated:

The charge [that was given] contained all of the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that “leaves the suppliers’ control lacking any element necessary to make it safe for its intended use,” and a declaration that a manufacturer “is really a guarantor of [a product’s] safety” but not an “insurer of [that] safety.”

Tincher II, at p. 18. The Superior Court thus granted Omega Flex’s request for a new trial. Significantly, Tincher II seems to invalidate at least one of the revised Pennsylvania Suggested Standard Jury Instructions, which were issued in 2016. Specifically, Pa. S.S.J.I. (Civ.) § 16.20 retained the Azzarello “any element/guarantor” test, while omitting the Tincher I requirement that, to incur liability, a product defect must be “unreasonably dangerous.” Tincher II makes clear that a jury being so charged amounts to a “paradigm example of fundamental error.” Tincher II, at p. 23.

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

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TT&H SPEAKING OUT

Navigating Large Condo Losses: The Good, Bad & The Ugly

TT&H Attorney Ben Peoples will be a featured speaker at a conference on April 12, 2018 at Bethesda Country Club in Maryland. The conference is on issues facing property managers, facility managers and asset and risk managers in large property losses.

For additional information, please contact Ben Peoples, at (202) 945-9501 or cpeoples@tthlaw.com.

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SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Keene v. Kirsch

• Pennsylvania Superior Court
• No. 1423 WDA 2016, 2018 Pa. Super. Unpub. LEXIS 431
• Decided: February 12, 2018

Pennsylvania Superior Court holds that an inquiry into whether a juror did not properly answer questions during voir dire that would have led to removal is not prohibited by the no-impeachment rule.

Background

Plaintiff Keene appealed the 10-2 jury decision that resulted in a verdict for the Defendants in a medical malpractice lawsuit. Plaintiff obtained affidavits from the two dissenting jurors, which revealed that two members of the jury did not properly answer questions during voir dire regarding their familial relationship with the Defendant doctor. Complicating matters, the jury selection process was not recorded. Nonetheless, the Trial Court held a post-trial evidentiary hearing, confined to the Trial Court’s concern that some jurors may have given incorrect answers that impacted Plaintiff’s ability to exercise a challenge for cause.

Despite Defendants’ objections that the hearing would violate the rule against impeaching a jury verdict based upon statements made during deliberations, the hearing went forward. The Trial Court granted a new trial, concluding that the two jurors in question would have been struck for cause had they answered the voir dire questions properly. Defendants appealed, inter alia, the Trial Court’s consideration of the post-verdict affidavits, arguing that it violated the “no-impeachment” rule.

Holding

The Superior Court noted that while the evidentiary hearing may have included testimony that violated the no-impeachment rule, the underlying decision was not based upon what was said during the deliberations, and rather, focused on the two jurors’ failure to answer voir dire questions truthfully, and that, if they had, they would have been stricken for cause. As such, the inquiry did not violate the no-impeachment rule, as it pertained to whether the jurors should have been allowed to participate in the deliberations, rather than what occurred during the deliberations.

Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.

Ream Props., LLC v. Hamilton

• Pennsylvania Superior Court
• No. 323 MDA 2017
• Decided: February 12, 2018

Superior Court affirms civil contempt order against member of single-member LLC for repeatedly attempting to serve as LLC’s legal counsel.

Background

Robert Pauletta sued on behalf of Ream Properties, LLC against Thomas and Theresa Hamilton in April 2014 in the Dauphin County Court of Common Pleas. Ream Properties, LLC is a single-member LLC, of which Pauletta is the sole member. Pauletta is not a licensed attorney. The Trial Court granted Hamiltons’ preliminary objections, that Pauletta was not a licensed attorney and could not represent Ream before the Court. The Trial Court gave Ream 20 days to obtain legal counsel and to refile. Pauletta instead filed a Complaint in Magisterial District Court. After the Hamiltons’ appealed the Magisterial District Court judgment, Pauletta attempted, without counsel, to file another Complaint with the Court of Common Pleas.

The Hamiltons filed a motion to dismiss all matters filed by Pauletta on behalf of Ream and asked the Trial Court to enjoin him from any further efforts to represent Ream. On August 12, 2015, the Trial Court held Pauletta in contempt and ordered him to pay attorneys’ fees. Pauletta failed to comply with the August 12, 2015 Order and the Hamiltons filed a second contempt petition, which was delayed after Pauletta attempted to transfer the case to Bankruptcy Court. The Trial Court entered a second contempt order on February 10, 2017. Pauletta filed a notice of appeal on February 23. 2017 to the August 12, 2015 and February 10, 2017 orders.

Holding

The Superior Court rejected Pauletta’s appeal of the August 12, 2015 as untimely. The Superior Court found that the bankruptcy stay did not apply to Pauletta because Ream, not Pauletta was the party seeking protection under Chapter 11 of the Bankruptcy Code. The Superior Court also rejected Pauletta’s appeal of the February 12, 2017 contempt order, finding that it is a well-established principle that a corporation cannot act except through its agent, and an agent representing a corporation in court must be an attorney admitted to practice law. The Superior Court found that a person who accepts the advantages of a corporation must also bear the burdens, including the need to hire counsel to sue or defend in court.

Questions about this case can be directed to Eric Horst, at (215) 564-2928 ext. 8506 or ehorst@tthlaw.com.

Collins v. Phila. Suburban Dev. Corp.

• Pennsylvania Superior Court
• No. 1484 EDA 2017, 2018 Pa. Super. 17
• Decided: January 31, 2018

Landowner has no duty to treat sidewalks prior to a snow storm.

Background

A Philadelphia Trial Court entered summary judgment in favor of PSDC grounded upon the hills and ridges doctrine which precluded a finding of liability. Plaintiff claimed that he slipped and fell on a snow/ice covered sidewalk which was owned by PSDC and that PSDC had contracted with Ross’s for ice and snow removal. At the time of the accident, there were blizzard conditions, a substantial amount of snow had accumulated, and the Plaintiff was aware that it had been snowing. PSDC argued that it had no duty to remove the snow/ice from the premises during a blizzard. It also argued that it contracted with Ross’s, an independent contractor, to remove the snow/ice, relied upon their expertise for so doing, and did not exercise control of the means or methods of their work.

The Trial Court noted that there was no dispute that Plaintiff fell in the midst of a blizzard. The hills and ridges doctrine requires the owner/occupier of land, after notice of a dangerous condition of hills and ridges of natural accumulations of snow or ice, to act within a reasonable time to eliminate the dangerous condition. It noted that Plaintiff was required to offer some facts from which a jury could conclude that a reasonable amount of time had elapsed between notice of the condition and the onset of the duty to eliminate the condition; however, this Plaintiff had no such evidence to offer. The Court noted that imposing a duty on an owner/occupier of land to keep their sidewalks free and clear of ice and snow in the midst of a blizzard would impose an impossible burden.

Holding

On appeal, Plaintiff argued that there were disputed issues of fact concerning whether the owner/occupier’s antecedent negligence, i.e., their failure to pre-treat the sidewalk before the storm, created an exception to the hills and ridges doctrine. The Court found no legal support for the argument that the owner/occupier has a general affirmative duty to salt or sand a surface during, immediately after, or prior to a winter storm. In affirming the Trial Court, the Superior Court noted that the entire “gist” of the hills and ridges doctrine is that a landowner has no affirmative duty to correct or take reasonable measures with regard to storm-created snowy or icy conditions until a reasonable time after the storm has ceased.

Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or jswartz@tthlaw.com.

Kostakis v. Lammell

• Pennsylvania Superior Court
• No. 564 MDA 2017
• Decided: January 19, 2018

Oral settlement agreement upheld as valid when there was express authority, it involved definite material terms, and there was no requirement for a signed release.

Background

Plaintiff was attacked by his neighbors’ dog and filed suit. Plaintiff demanded $100K at mediation. This was rejected by the neighbors. Thereafter, the neighbors offered $25,000, which was rejected by Plaintiff. This rejection was accompanied by a letter from Plaintiff to his attorney reiterating a desire to settle for $100K. According to the attorney, after receipt of that letter, he had a phone call with Plaintiff where he agreed to settle the range of $25K – $30K. An oral settlement was then reached wherein neighbors agreed to pay $25,000 plus any outstanding medical lien in exchange for a dismissal of the action. Counsel for the neighbors delivered a release to counsel, and Plaintiff refused to sign asserting that he had not agreed to the settlement amount. The neighbors filed a motion to enforce the oral settlement agreement.

The Lower Court adopted the testimony of former Plaintiff’s counsel, finding it to be credible and supported by file notes of the phone call, as evidence that Plaintiff authorized settlement in range of $25K-$30K. The Lower Court also determined that the material settlement terms were finalized in the oral agreement between counsel as the amount of the medical lien, although not set forth in a dollar amount, “was easily and readably attainable.” As the material terms were agreed to, there was a valid oral agreement before any asserted revocation of authority by Plaintiff. Lastly, the Court determined that the oral settlement agreement was not contingent on the signing of a release. As there was no contingency left to be fulfilled, the Lower Court granted the motion to enforce the settlement.

Holding

Whether to enforce a settlement agreement is a mixed question of fact and law and appellate review is centered on whether the Lower Court made correct legal conclusions and findings supported by the record. The Superior Court determined that the factual findings of authority to settle were supported by the record testimony of Plaintiff’s former counsel. The credibility determination of the Lower Court was entirely proper. The Superior Court further held that it was “irrelevant” that the actual lien amount was not orally agreed to as the law only requires “reasonably certainty” of a material term, which was fulfilled by reference to the lien itself. Finally, the Superior Court agreed that enforcement was proper as the terms of the oral agreement did require a release.

Questions about this case can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or resember@tthlaw.com.

Medley v. Dynamic Therapy Servs. LLC

• Pennsylvania Superior Court
• No. 2047 EDA 2017
• Decided: January 17, 2018

Though the Trial Court improperly classified the Plaintiff’s claim as arising out of medical malpractice, rather than ordinary negligence, transfer of venue was proper as Defendants had insufficient contacts with Philadelphia County.

Background

Plaintiff Medley was a front-seat passenger in a paratransit vehicle being transported from Berks County to a physical therapy appointment at Defendant Dynamic Physical Therapy. Plaintiff alleged that he was neither restrained nor secured during the course of this transit. The driver of the vehicle, who was speeding, slammed on his brakes to avoid traffic and Plaintiff was “violently thrown inside the vehicle[, and]…was caused to fly out of his seat and strike his head” causing him serious personal injuries. Defendant filed preliminary objections challenging venue in Philadelphia asserting that none of the Defendants resided in Philadelphia or maintained business offices in Philadelphia. The Trial Court granted the preliminary objections transferring venue to either Berks County or Montgomery County and ordered Plaintiff to incur all costs of transfer.

Holding

The Superior Court ultimately affirmed the Trial Court’s ruling, but determined that the Trial Court improperly classified the action as one arising out of medical malpractice rather than ordinary negligence. In reaching this conclusion, the Court found that the claim did not occur within the course of a professional relationship which involved medical judgment. Rather, the facts were more akin to a personal injury action arising from an automobile accident.

Though the Trial Court improperly classified the claim as medical malpractice, Plaintiff failed to demonstrate that Defendants’ contacts with Philadelphia were more than “tangential, incidental acts that were far from continuous or habitual.” In conclusion, the Trial Court correctly determined that venue was properly in either Montgomery County (where Defendant conducted business) or Berks County (where the accident occurred).

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

MARYLAND CASE SUMMARIES

Colbert v. Mayor and City Council Of Baltimore

• Maryland Court of Special Appeals
• September Term 2016, No. 1610
• Decided: February 2, 2018

Evidence of water leaks, in general, and a failure to maintain an aging water system, are insufficient to create a jury question about a municipality’s negligence after a buried water line ruptures.

Background

A cast iron water line buried beneath Elemley Avenue in Baltimore City ruptured and caused water to flood the basement of Brenda Colbert’s home. Ms. Colbert sued the Mayor and City Council of Baltimore for negligence. She alleged that the water main system was “quite old”, had suffered years of neglect, and had experienced an increase in “non-seasonal breaks.” The City filed a motion for summary judgment arguing there was no actual or constructive notice of any defect that would lead to a water main break. Ms. Colbert argued that the City knew or should have known the water main was defective based on documented service calls about water in basements and a leaking water meter. Ms. Colbert also argued that the doctrine of res ipsa loquitur applied because the water main break occurred under the street. The Trial Court granted the City’s motion for summary judgment. It ruled that Ms. Colbert failed to establish admissible facts to establish actual or constructive notice and that res ipsa loquitur was not applicable.

Holding

The Court of Special Appeals held that summary judgment was appropriate and upheld the Trial Court’s ruling. The Court reasoned there was insufficient evidence of actual or constructive notice because the was no record evidence that the leaks and maintenance issues identified by the Plaintiff which put the City on notice of a defect that would lead to a water main break. Further, the Court reasoned that res ipsa loquitur did not apply because there was no record evidence to indicate that a ruptured water main was a casualty which did not occur in the absence of negligence.

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

Duckett-Murray v. Encompass Ins. Co.

• Maryland Court of Special Appeals
• September Term, 2016, No. 1812
• Decided: January 31, 2018

As of 1992, UM limits must equal liability limits, unless waived in writing.

Background

In 2013, Michael Haynesworth struck a vehicle owned and operated by Lashawn Duckett-Murray. Murry suffered personal injuries from the accident. Haynesworth did not have motor vehicle liability insurance. Murray filed suit in the Circuit Court for Prince George’s County for damages against Haynesworth. She also sued Encompass Insurance Company, her UM carrier.

Murray and Encompass filed cross-motions for partial summary judgment on the issue of applicable UM limits. Murray argued that by statute, the policy’s UM limits must be equal to the policy’s $300,000 liability limits. Encompass argued that the UM limits were $75,000, as stated on the policy declarations page. The Circuit Court held that the applicable UM limits were $75,000. The Court granted partial summary judgment in favor of Encompass. The case went to trial. A jury found that Haynesworth was liable to Murray for $192,148.15 in damages. The Court entered judgment against Haynesworth in the full amount and against Encompass for $75,000.00. Murray noted an appeal with the Special Court of Appeals of Maryland and presented the sole question of whether the Circuit Court erred in ruling that the UM limits on Murray’s automobile insurance policy were not equal to the policy’s liability limits.

Holding

The Court of Special Appeals looked to the Maryland General Assembly 1992 amendment to Insurance Article Sections 19-509(e)(2) and 19-510(b)(1). It held that the policy behind the amendment was to maximize the number of auto insurance customers who would have UM coverage equal to liability coverage by making that the default coverage, unless affirmatively waived. Because Murray did not affirmatively waive the default coverage, combined with the fact that she made several material changes to her policy, since initiating coverage in 1987l, which were tantamount to a new policy, equal coverage must be implied. Therefore, the Court of Special Appeals vacated the Circuit Court’s judgment against Encompass for $75,00 and remanded the case for the court to enter judgment in favor of Murray and against Encompass for $192,148.15.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

NEW JERSEY CASE SUMMARIES

Urraca v. Montanez

• New Jersey Superior Court, Appellate Division
• No. A-1330-16T1
• Decided: January 31, 2018

Superior Court affirms Trial Court’s grant of Defendants’ motion for summary judgment on basis that residential property owners were not liable for Plaintiff’s injuries

Background

Plaintiff Urraca, fell when her foot was caught in a crack between Defendant Montanez’s driveway and the sidewalk in front of Montanez’s home. Urraca had walked past Montanez’s home to and from work every day for the previous four months prior to the injury. On the date of the injury, Urraca saw a large hole in the sidewalk outside Montanez’s home and attempted to avoid stepping into it by walking onto Montanez’s driveway. Urraca fell and sustained injuries when her left foot was caught in the crack between the sidewalk and driveway.

The Trial Court granted Montanez’s summary judgment motion and concluded that, absent any evidence that Montanez’s caused or exacerbated the defective condition in either the driveway or the adjoining sidewalk that surrounded the crack where Plaintiff fell, Montanez could not be liable. The Trial Court also noted that because the defect was not latent, Montanez had no duty to warn Urraca about the crack in the sidewalk, especially since Urraca was familiar with the area where she fell.

Holding

The Superior Court affirmed the Trial Court’s granting of Montanez’s motion for summary judgment. In addition to the reasons supporting the Trial Court’s grant of the motion, the Superior Court held that a residential property owner is generally immune from liability for accidents resulting from naturally-caused conditions of public sidewalks abutting the property, even if they were caused by the owners’ use of their driveway. The Court rejected Urraca’s argument on appeal that the Trial Court applied the improper legal standard of care to Urraca’s claim and noted regardless of Urraca’s legal status at the time of injury (trespasser or licensee), Montanez did not breach any duty owed to Urraca.

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

Quiles v. Hector

• New Jersey Superior Court, Appellate Division
• No. A-0023-16T1
• Decided: January 19, 2018

A commercial landowner cannot be liable for failing to remove accumulated snow or ice until a reasonable time after precipitation stops.

Background

On December 26, 2012, at approximately 8:05 pm, Plaintiff Quiles slipped and fell at an apartment complex owned by Defendant Hector. The complex consisted of six buildings and had “internal streets . . . and internal sidewalks”. Defendant was responsible for snow removal and used a machine to address the precipitation when it stopped snowing. At the time of her fall, Plaintiff was in the process of delivering pizza to a tenant. At her deposition, Plaintiff did not recall how long it had been snowing, but admitted it had been snowing at 7:30pm when she left to deliver the pizza. Later, Plaintiff submitted a Certification alleging that it was not snowing while she delivered the pizza. The tenant who ordered the pizza alleged it was snowing at the time the delivery was made. A report from the National Oceanic and Atmospheric Administration (NOAA) indicated that snow began at 2:00 pm and continued until 5:00 am the following morning and that the precipitation began as snow and changed to ice pellets and rain during the storm.

Both parties moved for summary judgment. The Trial Court granted the motion in Defendant’s favor ruling that no duty of care was owed because it was still precipitating when Plaintiff fell, noting local ordinances that gave property owners 12 hours to clear sidewalks following a snowstorm.

Holding

The Superior Court affirmed on alternate grounds, specifically noting that commercial landlords owe a duty to remove snow and ice from public sidewalks within a reasonable period of time, and that the local snow and ice removal ordinances could be indications of what a reasonable period of time would be. The Court further held that the reasonable period of time to act did not begin to run until after precipitation stops, and this Defendant’s failure to clear snow and ice while it was precipitating was not unreasonable.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.

DC CASE SUMMARY

Steiner v. Am. Friends of Lubavitch (Chabad)

• District of Columbia Court of Appeals
• Nos. 14-CV-1427 & 15-CV-203
• Decided: February 1, 2018

D.C. Courts can interpret contracts for religious organizations where interpreting doctrinal principles is not required; D.C. adopts the equitable remediation rule.

Background

Plaintiffs belong to an Orthodox Jewish movement, and were hired by American Friends of Lubavitch (“AFL”) to be campus rabbi for the movement at George Washington University (“GWU”). Plaintiff Steiner was later terminated as rabbi, and while contesting his termination in religious and civil courts, continued to act as a rabbi at GWU under AFL’s name and a new organizational name. AFL brought a breach of contract action against Steiner based on a non-compete agreement in his employment contract. AFL was granted a preliminary injunction barring Steiner from continuing to act as a rabbi at GWU, and Steiner thereafter challenged the injunction, asserting several arguments. Of interest, Steiner challenged the subject matter jurisdiction of the Trial Court to hear the case as an impermissibly entangling in religious matters, and for improperly altering the overly broad non-compete agreement.

The Court of Appeals noted that in addressing the first question, it had to determine whether, in the context of this non-compete clause, which did specify which kinds of rabbinical activities the Steiner could engage in, could be interpreted using “neutral principles of law.” In regards to the second question, the Court had to decide between the blue pencil rule, a more mechanical revisionary power, which allows severance of overly broad terms, where severable characteristics are patently evident, or the equitable reformation doctrine, which allows the deletion of unreasonable terms and narrowing the scope of existing language, without redrafting or adding language.

Holding

The Court of Appeals held that a non-compete agreement in this case expressed the limitations on Steiner’s rabbinical activities at GWU such that the Court did not need to interpret religious language beyond the purview of the Court’s knowledge. The Court pointed to years of contract performance upon which it could rely to define terms it might otherwise be unable to interpret. As for reformation, the Court elected to follow the equitable reformation doctrine, noting that it would look to Maryland cases for guidance where D.C. law lacked precedent. The Court so held because the blue-pencil rule offered too limited a toolset for courts to remedy contract drafting issues. The Court further stated that D.C. Courts should consider whether modified enforcement of a contract is possible without injury to the public or injustice to the parties before electing to use the equitable remediation doctrine.

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

VIRGINIA CASE SUMMARY

Newport News Holdings v. Great Am. Ins. Co.

• United States District Court for the Eastern District of Virginia
• No. 4:17cv124
• Decided: January 31, 2018

Rule 45 Subpoenas cannot be used to circumvent Rule 26 expert discovery provisions.

Background

A hotel owner sued its insurance company for coverage of damage caused by alleged vandalism. After bifurcation of the bad faith and other insurance claims, the hotel owner filed a motion asserting that it could issue a Rule 45 subpoena duces tecum to request production of documents from a non-party, in this case, the insurer’s adjuster expert. The motion presented two questions: whether the person being subpoenaed qualified as an expert such that the hotel owner had a privilege interest in his files, and when a subpoena duces tecum was an appropriate method for obtaining such an expert’s files. The non-party being subpoenaed was a “public adjuster,” but his contract with the insurer listed litigation services among his job requirements.

The Court noted that the Western District of Virginia had already decided this issue, holding that a Rule 45 subpoena is an impermissible evasion of the expert discovery process covered in Rule 26. That Court held that the proper means of discovering information and documents from an expert is to receive the expert’s report and thereafter depose the expert if necessary. The Eastern District Court noted that alternatively, Rule 45 could be treated as a valid means of discovery from all non-parties, as Rule 26 has no explicit ban on subpoenas to experts.

Holding

The Court elected to follow the Western District’s ruling, and barred the hotel owner from subpoenaing the insurer’s expert. In so holding, the Court stated that though the public adjuster was an expert, expert privilege is qualified, and the insurer would still have to cooperate with the discovery procedures in Rule 26, such that the hotel owner would still obtain much of what it was seeking in its subpoena.

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