Litigation

“Quick Fix” Leads To Liability If Not Done Properly (PA)

In a recent Eastern District of PA case, Zurich Am. Ins. Co. v. A.T. Chadwick Co., Inc., the court denied a third-party defendant’s motion for summary judgment in a construction defect case. The court found that jury could assign a percentage of the blame to the third-party defendant for a “quick fix” gone bad.

In this case, a homeowner had a broken pike in their home which leaked and sagged in the home. It was installed by the primary defendant when building the home.  However, when damages were noticed, the property manager asked a third party to perform a temporary repair of the leaking pipe until such time as the primary defendant could come back to correct its installation. The pipe was repaired but again failed before the primary defendant that originally installed the pipe could return to fix the pipe permanently. As a result, the primary defendant brought claims against the third-party “quick fixer” who performed the temporary repair.

The “quick fixer” who performed the temporary repair  argued that it had no relationship with the primary defendant that would give rise to a legal duty. The court found in favor of the primary defendant and denied the motion for summary judgment. The court stated that although, “correct to the extent that there was no contractual or business relationship that would give rise to a duty.” Nevertheless, a duty did exist because the third party attempted to fix the leak and had a duty of reasonable care to perform a functional temporary fix. Additionally, the court went on to consider that a key factor in the recognition of a legal duty falls to the risk and foreseeability of harm. The importance of the temporary repair required a greater duty of the third-party to prevent the leak from continuing before the primary defendant could permanently fix the pipe. As result the third party’s inability to show that they owned no duty and a blame for damages could be portioned to them led the court to deny the motion for summary judgment.

This case confirms highlights precedent that when someone takes on an undertaking to fix or correct a defect, a duty is created.

Thanks to Kevin Riley for his assistance with this post.  Should you have any questions, please contact Tom Bracken.

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Call Your Next Witness – Dr. Ron Grelsamer

Orthopedic Surgeon and Author — both with regard to orthopedic surgery, and to his expertise on the Beatles — and all around interesting guy to speak with, Dr. Ronald Grelsamer is a true renaissance man.  He recently joined me as a guest on the Call Your Next Witness podcast.   Frankly, we could have done an entire podcast on the Beatles.   (For example, any Beatles fan is familiar with the Red and Blue albums — but which songs should have been included on those greatest hits albums, and were left off?   That topic alone could prompt hours of debate.) But before we delved into the Beatles, we discussed orthopedic surgery, and specifically, what attorneys should be looking for when assessing a knee injury, both before and after surgery, to gauge whether there is a causation issue.   This part of the interview is a must-listen for both plaintiff and defense attorneys in the personal injury world.   We also had a frank conversation about the personal injury “machine,” and what the defense and insurance industries can do to discourage medically unnecessary surgeries, which Dr. Grelsamer encounters from time to time in his role as an expert orthopedist.  Dr. Grelsamer’s publications, including his Beatles audiobook, can be purchased here, and the podcast interview can be found here, or downloaded wherever you listen to podcasts.  Just search for Call Your Next Witness.   If you’re interested in being a guest, please contact Brian Gibbons or Georgia Coats.  Read More

Injuries Sustained At The End Of A Workday Are Still Compensable Under the Workers’ Compensation Act (NJ)

In Diane S. Lapsley v. Township of Sparta, defendants appealed from a denial of workers’ compensation benefits to plaintiff under the Workers Compensation Act. Plaintiff was employed as a librarian for the Sparta Public Library by the Township. After leaving the library at the end of her workday and while walking through the parking lot to her car, plaintiff was struck and injured by a snowplow owned and operated by the Township. The Township owned and maintained the parking lots, which were open to both its employees and the public. Township employees were not directed nor required to park in the parking lots.

On appeal, the Supreme Court of New Jersey held that plaintiff was still entitled to compensation benefits. The court reasoned that her injuries occurred prior to the end of her workday because the subject accident occurred in a parking lot owned and controlled by the Township, and she had not yet left the premises following the end of her shift.

The Court’s ruling expands the applicability of the Workers Compensation Act with respect to compensation benefits. Entitlement to compensation benefits is not narrowly construed to just injuries sustained during a work shift but can now be available even after an employee “clocks out” for the day – so long as the injury occurs on the employer’s premises.

Thanks to Gina Rodriguez for her contribution to this article.  If you have any questions, contact Matthew Care.

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No Winners In Travelers v. Wesco: Court Holds Policies Are Co-Primary On An Equal Share Basis

In a declaratory judgment action (“DJA”) initiated by Travelers Property Casualty Company of America (“Travelers”) in the Southern District of New York, Travelers sought a ruling that (1) Wesco Insurance Company (“Wesco”) has a duty to defend and indemnify a mutual insured, Broadway, as an additional insured on Wesco’s policy; (2) the coverage provided by Wesco is primary; and (3) Travelers’ obligations to Broadway are excess and non-contributory to Wesco’s with respect to the two pending underlying personal injury actions from which the DJA stems. Travelers contended that its policy’s “other insurance” clause indicates it is excess to, not co-primary with, Wesco’s policy. This argument is predicated upon Travelers’ “other insurance” language which explicitly states it is excess to policies for which Broadway is an additional insured.

Travelers and Wesco cross-moved for summary judgment–both were granted in part and denied in part. Travelers’ was granted as to Wesco’s duty to defend and, if necessary, indemnify Broadway as an additional insured, making Wesco’s coverage of Broadway, primary coverage. Wesco’s was granted as to the respective “other insurance” policies. Specifically, Wesco argued that the respective provisions mandate that the policies are co-primary because Travelers’ Blanket Additional Insured Endorsement provides the policy is primary when “a written contract or written agreement . . . specifically requires that this insurance apply on a primary and non-contributory basis.” Although Travelers countered that its amendment to the “other insurance” provision states its obligations are “excess over any of the other insurance . . . that is available to the insured when the insured is added as an additional insured under any other policy,” the court stated that the amendment modified only Section IV of the policy, not the Blanket Additional Insured Endorsement.

Stepping outside the language of the policies, the court supported its decision by pointing to the contract between Travelers’ named insured and Broadway. The contract stated in no uncertain terms that Broadway required Travelers’ named insured to include Broadway as an additional insured on a primary and non-contributory basis. Hence, on February 8, 2022, the court ruled that Travelers and Wesco have a co-primary duty to defend Broadway. We note also that Wesco attempted to saddle Travelers with 60% of the defense costs based on policy limits but the court denied this method of pro rata apportioning based on policy intent evidenced by the “methods of sharing” language.

This decision highlights the importance of “other insurance” intricacies and how thinking three or four steps ahead can limit exposure in the commercial litigation context.

Thanks to Richard Dunne for his contribution to this article.  If you have any questions, contact Matthew Care.

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New Theory Of Liability At Summary Judgment Phase Disallowed (NJ)

The matter of Stewart v. New Jersey Turnpike Authority was recently decided by the Supreme Court of New Jersey.  In that matter, the plaintiff motorcyclists were injured after a motorcycle accident involving no other vehicles.  The collective plaintiffs alleged throughout litigation that they lost control of the motorcycle when they struck a piece of metal in a bridge’s expansion joint that jutted out of the roadway.

After seven discovery extensions, all of which were all requested by the plaintiffs, and in response to the Turnpike Authority’s motion for summary judgment, the plaintiff’s changed the story (i.e. theory of liability).  They argued, for the first time, that the defendants failed to properly pave a portion of the roadway, and that this failure caused the accident.

The trial court did not look kindly upon the plaintiffs.  Indeed, the trial court did not consider their new argument and granted the defendants’ motion for summary judgment pursuant to the Tort Claims Act which generally shields public entities from liability.

The appellate division reversed by entertaining the new theory of liability and holding that genuine issues of fact existed.  Upon review, the Supreme Court swiftly reversed the appellate division’s decision and held that the new theory of liability should not have been considered and, and, even if it was considered, the new theory did not raise any material issues of fact.

This case from the Supreme Court will be helpful for defense attorneys who are faced with untimely disclosures of theories of liability which were not previously disclosed during discovery.  Pursuant to the Court’s holding, plaintiffs cannot simply change their theory of liability after years of discovery to spring a last minute surprise.

Thanks to Mike Noblett for his contribution to this article.  If you have any questions, contact Matthew Care.

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Personal Injury Suit Dismissed Against Hotel For Failure To Provide Expert Evidence Of Liability

In Feuerman v. Marriott, the Court dismissed Plaintiff’s trip and fall complaint against the hotel.  Plaintiff claimed the bathroom contained an inoperable and inadequate lighting fixture. After discovery had been completed, defendants moved for summary judgment dismissing the complaint and submitted an expert report averring that the lighting complied with all applicable statutes and that the design of the switch locations provided easy access on entry or exit of the bathroom. Plaintiff’s opposition was inadequate merely averring that the design guides for defendant facilities require the installation of lighted switches in the foyer and bathroom in each of their rooms.

In deciding the summary judgment motion, the court found that defendants’ expert’s opinion that “defendants were not obligated to provide an illuminated light switch in the bathroom where decedent was injured” established defendants’ prima facie entitlement to summary judgment. The court concluded plaintiff’s opposition provided no credible evidence of probative value.  This Court properly utilized the evidentiary standards required when parties are finished with discovery. A plaintiff must submit credible evidence of liability, especially in instances where expert testimony is required.  Plaintiffs are forewarned that failure to bring your case to court will result in dismissal.

Should you have any questions, please feel free to contact Tom Bracken.

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Third Circuit Permits §1983 Claims To Proceed Against Healthcare Facility Permitting Unsupervised Visit When There Is “Foreseeable Harm”

In Mears v. Connolly, et al., the United States Court of Appeals for the Third Circuit reversed the district court’s dismissal of the plaintiffs’ §1983 claims against a nurse and hospital that permitted a visitor to remain with a patient unsupervised, who then violently attacked by the patient.

Plaintiffs Jun-Lori Mears and Michael Mears sued a nurse, among others, after June-Lori Mears was attacked by her son, who suffers from bi-polar disorder. Over the course of his three years in Greystone Park psychiatric, he attacked several other patients, even sending one to the intensive care unit. Despite his violent outbursts, hospital staff informed his parents that it was safe to visit him.  Further, Brenden’s nurse, despite knowing of Brenden’s violent tendencies and recent outbursts, she did not supervise the visit. Brenden attacked his mother and broke several of her ribs. The incident caused her severe psychological trauma.

The Mears sued the hospital and nurse under §1983. The district court dismissed the claims, reasoning that the nurse had not affirmatively acted to create a danger and that the mother had not suffered a “foreseeable and fairly direct” harm. However, the Third Circuit reversed, reasoning that the nurse had personally supervised Brenden for months, knew of his violent propensity, and saw that just three days prior to the visit he had been acting bizarre. The court concluded that this was enough to put her on notice of the serious threat that Brenden posed to the mother’s health on an unsupervised visit.  The Circuit Court broadened the meaning of “foreseeable harm” to include that “foreseeable” does not actually require any specific history of violence.

Thanks to John Lang for his contribution to this article.  Should you have any questions, please feel free to contact Tom Bracken.

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Forum Shopping Denied: Superior Court Rejects The Availability Of Virtual Technology As A Basis For Denying A Dismissal Based On Forum Non Conveniens

In Green v. CSX Transportation Inc., the Superior Court of Pennsylvania rejected a trial court’s conclusion that the availability of virtual technology ameliorated the difficulties of litigating in an inconvenient forum, and reversed the trial court’s denial of CSXT’s motion to dismiss based on forum non conveniens.  Clyde Green filed a Federal Employers’ Liability Act (“FELA”) claim against CSXT, where he worked for 42 years as a train brakeman and conductor, alleging that he developed colon cancer through his employment-based exposure to toxic substances.  Green is a lifelong resident of Maryland and had worked for CSXT and its predecessor entities almost exclusively in Maryland.  Since his employment with CSXT began in 1987, Green never worked in Pennsylvania.  While working for the predecessor companies, Baltimore and Ohio Railroad and the Chessie System, Green would infrequently travel to one rail yard in Pennsylvania.  In his entire career, Green worked at 13 separate railyards.  His former co-workers and supervisors all live in Maryland, as does his immediate family.  Green was diagnosed and exclusively treated for cancer in Maryland.  All of the medical professionals that were directly involved in Green’s health maintain offices or operated their practices in Baltimore or Annapolis, Maryland.

Notwithstanding the extensive connections to Maryland, Green filed his complaint in the Court of Common Pleas of Philadelphia County.  CSXT filed a motion to dismiss based on forum non convenience.  The court denied the motion, concluding that it was “no more vexatious to conduct. . . remote litigation in Maryland or Pennsylvania.”  The court determined that all discovery and trial depositions could be performed remotely, and the Superior Court observed that the trial court “found that remote accessibility made it immaterial as to where the actual action would be litigated.”  The Superior Court soundly rejected this argument:

Simply put, to the extent the trial court was suggesting the use of video recording technology would ameliorate potential problems with remote witnesses, reliance on these “workaround” methods is misplaced.  Stated differently, overwhelming or exclusive reliance on “modern technology to obviate the need for in-person elements of the trial continuum has been rejected as a justification to deny a motion to dismiss on forum non conveniens grounds.  Citing Wright v. Consol. Rail Corp., 215 A.3d 982, 996 (Pa. Super. 2019).

The Superior Court reversed and remanded to the trial court to with directions to dismiss the underlying complaint without prejudice to refiling it in a more appropriate court.  Ultimately, the Superior Court’s decision was based on its conclusion that the trial court had misapplied the relevant public and private factors under Pennsylvania forum non convenience law and that “given the clear viability of Maryland as an alternate forum, it was an abuse of discretion to the contrary.”  Although Green is a fact-specific non-precedential decision that was ultimately decided on other grounds, it stands as persuasive authority for rejecting future attempts to use the availability of virtual litigation technology as an argument to circumvent existing forum non conveniens jurisprudence.

Thanks to James Scott for his contribution to this article.  Should you have any questions, please contact Tom Bracken.

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Pennsylvania Federal Court Rejects An Insured’s Tactical Delay In Moving To Amend A Declaratory Judgment Complaint

In Giant Eagle, Inc. v. Am. Guarantee & Liab. Ins. Co., the Western District of Pennsylvania addressed whether the plaintiffs in an insurance declaratory judgment action would be permitted to seek leave to amend their complaint where they intentionally delayed seeking such relief for tactical reasons. Plaintiffs Giant Eagle, Inc. (“Giant Eagle”), a supermarket chain, and HBC Service Company Giant Eagle, filed a declaratory judgment action seeking a ruling that its excess insurers owed a duty to defend and indemnify Giant Eagle in four underlying opioid lawsuits. Giant Eagle was initially granted partial summary judgment after arguing that its excess carriers’ duty to defend was triggered by Giant Eagle’s payment of litigation defense costs. Several insurers moved for reconsideration, and the court vacated its partial summary judgment ruling, holding that Giant Eagle failed to show that there was no genuine issue of material fact in dispute.

Giant Eagle moved to certify an interlocutory appeal and for leave to file an amended complaint. The court denied Giant Eagle’s motion for leave to amend, concluding that the company had unduly delayed its effort to amend and that it had known the facts it was trying to add to the complaint at the time of its original filing. The court ruled that Giant Eagle’s efforts were strategic in nature and that it had delayed seeking the amendment until the outcome of its partial summary judgment motion, since the amendment would have delayed such relief.

This case serves as a reminder that parties seeking to amend pleadings should promptly move to do so and that waiting for a tactical advantage could result in the loss of the right to make the amendment.

Thank you to Mason Bailey for his contribution to this post. Please contact Andrew Gibbs with any questions.

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Overserved: Creative Pleading Cannot Overcome Dram Shop Social Host Bar (PA)

On December 17, 2021, the Superior Court of Pennsylvania held in Klar v. Dairy Farmers of America, Inc., et al., 2021 PA. Super. 252 (2021), that an employer without a liquor license who provides alcohol and food at a company event in exchange for an all-inclusive fee, classifies as a social host and could not be bound by the Pennsylvania Dram Shop Act, as an “any other person” under 47 P.S. §4-493(1), which ultimately limits a Pennsylvania employer’s exposure when fostering social gatherings where an intoxicated employee may find trouble on their way home.

In Klar, David Klar (“Plaintiff”) was seriously injured around 5:45PM, when a vehicle driven by Roger Williams (“Williams”), who had a BAC of .23, swerved into Plaintiff’s lane causing a head on collision. At the time of the accident, Williams had been traveling from an event organized by his employer, Dairy Farmers of America, Inc. (“DFA”), at the Tanglewood Golf Course in Mercer County. Prior to the event, DFA encouraged all its employees to participate in a golf outing in exchange for a mandatory, all-inclusive fee which included golf costs, food, and alcohol.  As a result of the collision, Plaintiff, in pertinent part, alleged that DFA was negligent and negligent per se for violating the Dram Shop Act by providing Williams’ alcohol when DFA knew or should have known Williams was intoxicated and/or was a habitual drunkard being that DFA had previously been aware of Williams’ history of alcohol-related driving offenses before the event.

In response, DFA filed a motion for judgment on the pleadings alleging that DFA was a social host rather than a license holder under the Pennsylvania Liquor Code, 47 P.S. §§ 1-101-10-1001, thereby was not bound by the Dram Shop Act under 47 P.S. §4-493(1). The trial court agreed granting DFA’s motion which Plaintiff appealed to the Superior Court arguing that DFA was bound by the Dram Shop Act classifying as “any other person” per 47 P.S. §4-493(1).

On review, the Superior Court disagreed, and held Plaintiff could not be successful in his claims because DFA did not qualify as a licensee under the Liquor Code nor could classify as “any other person” per 47 P.S. §4-493(1) of the Dram Shop Act. The court explained their rationale by pointing to Manning v. Andy, 310 A.2d 75 (Pa. 1973) which held that a violation of the Liquor Code could not form the basis for a cause of action against a non-licensee for the purposes of Dram Shop liability. Instead, the Superior Court held rather classified as a “social host” where from serving a social guest alcohol cannot be casually linked to negligence. Therefore, DFA was entitled to judgment on the pleadings for both claims.

While employers in such a context have ordinarily been classified as social hosts, the Superior Court’s division in Klar clarifies the Dram Shop Act’s scope, thereby limiting an employer’s exposure when providing alcohol at work functions. This case further shows that sometimes Courts will look at the essence of the claim instead of creative pleading that would otherwise allow a case proceed past the pleadings stage.

Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, please contact Matthew Care.

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