General Liability eNotes


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TT&H eNotes Liability: April 2017


FIRM NEWS

Thomas, Thomas & Hafer welcomes new attorney, Renita L. Collins.

We are pleased to announce the addition of Attorney Renita L. Collins as an Associate in the Baltimore, MD office. She practices primarily in the area of General Litigation.

Prior to joining the firm, Renita attended the University of Maryland School of Law, where she received her Juris Doctor, with honors, in 2004. There, she served as an Associate Editor of The Business Lawyer, the American Bar Association publication for Business Law, and worked as a summer associate in the legal department of Bank One, N.A. in Chicago.

Following law school, Renita clerked for The Honorable W. Michel Pierson at the Circuit Court for Baltimore City. Thereafter, Renita worked as an associate for a boutique commercial litigation firm, focused on complex commercial, banking, construction, class action and employment litigation matters. Renita represented national banks and other financial institutions in complex commercial litigation and transactional matters. In addition, Renita represented local businesses in a variety of litigation, transactional, and other advisory matters. Ms. Collins participates in the J. Dudley Digges Inn of Court and other local bar associations.

Renita can be reached at (410) 653-0460 ext. 8719 or rcollins@tthlaw.com.

TT&H LAWYERS IN COURT

Thomas, Thomas & Hafer Attorneys Ben Peoples and Michael Burgoyne win defense verdict for Towson, MD bar following a stabbing incident.

On March 28, 2017, Attorneys Charles “Ben” Peoples and Michael Burgoyne obtained a defense verdict in the Circuit Court of Baltimore County, Maryland.  The verdict came after a six-day jury trial presided over by Judge Robert Cahill, Jr.  The negligence action was brought against a local bar after the Plaintiff was stabbed twice by another patron.  The Plaintiff claimed that the bar was negligent in failing to prevent the incident, particularly as it had confiscated a knife from the same assailant on two prior occasions in the weeks leading up to the incident.  Following the six-day trial, the jury rendered a defendants’ verdict after concluding that the Plaintiff was contributorily negligent.

Questions about this case can be directed towards Ben Peoples, at (202) 904-2362 or cpeoples@tthlaw.com.

Mike Burgoyne wins defense verdict in multi-vehicle negligence action.

In a dispute between the drivers of three vehicles who collided on Interstate-270 in Frederick County, Maryland, Michael Burgoyne successfully defended the driver of dump truck who allegedly left his lane of travel and struck the Plaintiff’s vehicle.  The parties had agreed to bifurcate the trial, while also stipulating to a verdict of $90,000.  After a two-day trial, the jury found the co-defendant negligent, but returned a verdict in favor of Attorney Burgoyne’s client, the driver of the dump truck.

Questions about this case can be directed to Michael Burgoyne, at (410) 653-0460 ext. 8702 or mburgoyne@tthlaw.com.

Attorney Jason Giurintano wins summary judgment in Dauphin County negligence action.

Plaintiff’s claim involved the fall down stairs at a restaurant where he was employed. Plaintiff sued the owner of the building, who in turn joined the owner of restaurant under a theory of contractual indemnification. In seeking a dismissal of the claim, Attorney Jason Giurintano argued that, his client was afforded employer immunity under Pennsylvania Worker's Compensation Act. The Court agreed and dismissed the claims against Jason's client, with prejudice.

Questions about this can be directed to Jason Giurintano, at (717) 237-7157 or jgiurintano@tthlaw.com.

Anthony Bowser scores defense victory in wage and hour arbitration.

Anthony Bowser obtained a defense award for an employer in a private arbitration in which a former employee sought more than $66,000 in sales commission payments. The dispute arose between a California-based company and an outside sales employee working from his home in suburban Philadelphia. The employee was terminated after the company discovered he had been moonlighting for another company and also submitting fraudulent expense reimbursement requests. After his termination, the salesperson sought commissions on two projects which closed after his termination date.

The Arbitrator found in the employer’s favor on all issues. First, the dispute was arbitrable under the employment agreements and because the employee waived any contrary argument by submitting the case to AAA arbitration. Second, a choice of law issue was found to be of no moment – and did not make the dispute statutorily non-arbitrable under California law – because Pennsylvania’s statute and California’s statute are identical in their relevant provisions. Third, the employee failed to show a contractual right to the commissions and did not meet his burden to show the commission structure was unconscionable. Finally, even if the employee could have shown an entitlement to the commission, his conduct barred any recovery under the doctrine of unclean hands.

Questions about this case can be directed to Anthony Bowser, at (717) 441-3959 or abowser@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA   |   MARYLAND   |   NEW JERSEY    |   VA

PENNSYLVANIA CASE SUMMARIES

State Farm Fire & Cas. Co. v. JPC Group, Inc.

Pennsylvania Commonwealth Court

916 C.D. 2016

Decided: March 9, 2017

Demolition company contracted by the City of Philadelphia to demolish a fire-damaged property was not entitled to qualified immunity from a neighboring homeowner’s tort claim for damage sustained to his property during the demolition project.

Background

The City of Philadelphia hired JPC Group to demolish a fire-damaged property. The City entered into an annual contract with JPC Group that authorized JPC Group to submit bids for demolition projects in open competition with other contractors and without guarantee that it would be awarded any contracts. The contract required JPC Group to carry its own insurance naming the City as an additional insured.

During the course of the demolition project, damage was caused to a neighboring property. The neighboring homeowner brought suit against JPC Group for its alleged negligent demolition, and JPC Group responded by arguing that it was entitled to qualified immunity under the Political Subdivision Tort Claims Act. Finding that the JPC Group employees were employees of the City of Philadelphia at the time of the incident and not independent contractors, the Trial Court held that JPC Group was entitled to immunity from the homeowner’s claims.

Holding

The Commonwealth Court reversed. Independent contractors of government agencies are not afforded immunity under Pennsylvania’s Political Subdivision Tort Claims Act. To determine whether a person is an employee or independent contractor under Pennsylvania law, a court must consider several factors, including control over the work to be completed and the manner in which it is to be performed. Although City officials oversaw JPC Group as it completed the demolition project, the City did not control the course of the project, and the fact that a government agency inspected the course of the project did not give rise to a finding that the City maintained exclusive control over JPC Group employees. Therefore, JPC Group employees acted as independent contractors at the time of the alleged negligent demolition and were not entitled to immunity under the Political Subdivision Tort Claims Act.

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

Boyd v. Accurate Trash Removal

Pennsylvania Superior Court

No. 571 EDA 2016

Decided: March 20, 2017

Pennsylvania Superior Court denies Defendants’ motion for summary judgment and motion in limine to preclude claim and evidence of damages based on the doctrine of collateral estoppel, holding the prior Workers’ Compensation decision determining Plaintiff had fully recovered from the injuries did not bar claims.  On separate issue, the Superior Court found that the Trial Court erred by awarding the consortium Plaintiff delay damages.

Background

Plaintiff was working as a SEPTA bus driver when his vehicle was struck head-on by an Accurate trash truck. Plaintiff suffered injuries to his head, neck and lower back. Plaintiff brought a workers’ compensation claim against SEPTA. The WCJ ultimately determined that Plaintiff suffered injuries to his head and neck and suffered total disability. The WCJ further found that Plaintiff fully recovered from his injuries as of October 25, 2012.

In addition to the workers’ compensation claim against SEPTA, Plaintiffs also filed a civil suit against Defendants, seeking damages stemming from the accident, as well as a consortium claim. Defendants subsequently filed a motion for partial summary judgment seeking to preclude Plaintiffs from recovering damages for injuries beyond those found by the WCJ, based upon the doctrine of collateral estoppel. This motion was denied. Defendants then re-raised this issue prior to trial by filing a motion in limine seeking to preclude Plaintiffs from presenting any evidence of, or the award of any damages for, injuries existing after October 25, 2012, again based on the doctrine of collateral estoppel. The Trial Court also denied this motion. Defendants then sought a jury instruction, once again based upon the doctrine of collateral estoppel, which would limit Plaintiffs’ recovery to damages allegedly sustained prior to October 25, 2012. Once again, the Trial Court denied this motion.

The trial commenced, during which Plaintiffs and their medical expert were allowed to testify as to injuries and complaints experienced after October 25, 2012. At the conclusion of the trial, the jury returned a verdict in favor of Plaintiffs in the amount of $750,000 ($50,000 of which was awarded for loss of consortium). Plaintiffs then filed a motion for delay damages, and Defendant filed post-trial motions requesting the Trial Court reconsider its prior rulings regarding the application of the doctrine of collateral estoppel. The Trial Court granted Plaintiffs’ motion and denied Defendants’ motion. Defendants appealed.

Six of Defendants’ seven appellate issues were grounded in its claim that the Trial court erred in holding that the doctrine of collateral estoppel did not apply to bar evidence, argument and testimony regarding injuries and damages allegedly sustained by the Plaintiffs after October 25, 2012. In their remaining appellate issue, Defendants asserted the Trial Court erred in awarding delay damages to the consortium Plaintiff.

Holding

The Superior Court affirmed the Trial Court’s rulings regarding the inapplicability of the doctrine of collateral estoppel. The Court stated that a workers’ compensation decision could collaterally estop a later third party case, but only if the WCJ found that the Plaintiff did not sustain any injury. Here, the WCJ found that Plaintiff did sustain injuries in the accident. The fact that the WCJ found that Plaintiff was not disabled under the workers’ compensation act only speaks to economic damages. However, the Plaintiffs’ damages in the civil case were the result of their non-economic damages. On the remaining appellate issue, the Superior Court found that the Trial Court erred in awarding delay damages to the consortium Plaintiff, as they are not applicable pursuant to Rule 238(a).

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

BouSamra v. Excela Health

Pennsylvania Superior Court

No. 1637 WDA 2015, 2017 Pa. Super 66

Decided: March 13, 2017

Both the work product privilege and the attorney-client privilege are subject to waiver if the material protected by the privilege is disseminated to a third party.

Background

Plaintiff, a cardiovascular surgeon, voluntarily resigned his staff privileges at the Defendant Excela’s hospital in lieu of having his staff privileges revoked due to allegations that he had performed unnecessary surgeries. The hospital subsequently released a statement indicating that an investigation revealed that Plaintiff and his partner were performing unnecessary surgical procedures, and this lawsuit followed. At issue on this interlocutory appeal to the Superior Court was an opinion letter prepared by outside counsel to advise Excela on the legal propriety of publicly naming Plaintiff and his colleague as performing the allegedly improper surgeries. Prior to making the public announcement, the opinion letter was forwarded to a team at a public relations firm working on Excela’s press release.

The Trial Court’s special master assigned to handle discovery matters determined that the opinion letter and discussion surrounding the letter between Excela’s agents and the public relations firm were subject to the attorney-client privilege, the Trial Court held that the attorney-client privilege had been waived because the opinion letter was shared with the outside public relations firm. As the members of the public relations firm were not agents of Excela’s counsel facilitating its representation, the privilege was waived when it was disseminated outside of the scope of Excela’s legal representation.

Holding

The Superior Court determined that while the work product and attorney-client privileges applied to the opinion letter, both privileges were waived by the dissemination of the protected material to an outside party who did not use the protected material to further legal representation by the attorney who created the privileged work product. The attorney-client privilege is preserved only where protected material is given to a third party and the presence of the third party is at least useful for purposes of the lawyer’s legal advice, like where an interpreter is necessary for an effective consultation between the lawyer and client.

Questions about this case can be directed to Katelyn McCombs, at (412) 926-1438 or kmccombs@tthlaw.com. Katelyn is admitted to practice in the State of North Carolina.  She recently joined the firm’s Pittsburgh office and is working to be admitted to the Pennsylvania bar.

Brown v. Everet Cash Mut. Ins. Co.

Pennsylvania Superior Court

No. 1549 WDA 2915

Decided: March 10, 2017

Because the insureds failed to rebuild their home after a total loss, the insurer properly limited payment to actual cash value. However genuine issues of fact remained regarding the determination of the actual cash value, as there was a substantial discrepancy between the values determined by the parties’ respective appraisers and the insurer’s appraiser may not have considered all relevant factors in fixing the depreciation percentage.

Background

The insureds’ 107 year old home was destroyed by fire. Portions of the home had been remodeled in the year prior to the fire, but that fact was not considered by the appraiser. The appraiser also did not consider any comparables, and he was unable to make a before and after comparison of the home. The appraiser determined replacement cost to be approximately $100,000 and he assigned a 35% rate of depreciation. Hence, the insurer offered an actual cash value payment of about $65,000 pending actual repair or replacement of the home. The insureds did not complete the repair or replacement of their home, citing financial hardship. However, they insisted that they could recover the entire replacement cost despite never having completed the repair or replacement of the structure.

The insureds also disputed the amount of the actual cash value. They had an independent appraisal performed. Their appraiser arrived at a replacement cost of about $127,000, and lower percentages of depreciation. The insureds’ appraiser applied an 18% depreciation factor for the remodeled portion of the home and 28% for the remaining 30% of the home that was not remodeled. The insureds’ appraiser also questioned the reliability of the cost approach given the age of the home. The insureds’ appraiser arrived at an actual cash value of $95,000.

Disputes also arose concerning additional living expenses and an ordinance payment. With regard to the former, the insurer paid four months of documented rental payments as additional living expenses, and the insureds submitted no other receipts for consideration. With regard to the latter, the insureds could have recovered the amount upon clearing the site and rebuilding the structure, which they did not do.

Finally, after a dispute arose between the insureds over the rebuilding of the home, one of the insureds requested the issuance of a separate check for her portion of the proceeds. However, the insurer declined, noting that the policy named the insureds jointly and that, absent consent from the other insured to the issuance of separate checks, the payment would be made to the insureds as identified in the policy. The insurer did, however, offer to pay the money into court so that the insureds could litigate their entitlement. The insureds declined both offers. The aggrieved insured maintained that the insurer acted in bad faith.

Holding

The insurer properly limited the payment to the actual cash value of the home because the insureds did not comply with the policy condition requiring repair or replacement of the home. However, a dispute of fact existed as to the amount of the actual cash value, given the discrepancy between the insureds’ appraisal and that of the insurance company. Further, it appeared that the company appraiser did not consider all relevant factors, including the remodeling that had occurred prior to the loss. There also appeared to be a variance between appraisal methodologies, as the insureds’ appraiser asserted that the cost approach was unreliable given the age of the structure, and the insurer’s appraiser did not consider any comparables, nor did he perform an assessment of the condition of the home before and after the fire. The Court left open the possibility that this dispute could be settled via binding appraisal on remand.

As to the additional living expenses, the Court ruled that the insurer acted properly because the insureds did not submit additional documentation of rental payments, and they did not comply with the requirement of cleaning up the site and rebuilding the home.

With respect to the bad faith claim surrounding the issuance of the check, the Court held the claim to be lacking merit because the policy designated the named insureds as loss payees.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

Vetter v. Miller

Pennsylvania Superior Court

No. 1038 MDA 2016

Decided: March 10, 2017

A guilty plea to a DUI may be admissible in a civil trial if independent evidence corroborates the inference that the offender was intoxicated.

Background

The Plaintiffs attended a wedding reception. After consuming several alcoholic beverages, the pair left the reception via automobile. The automobile was operated by the Plaintiff, Mr. Vetter, and Plaintiff, Ashley Jones, was a front seat passenger. While the Plaintiffs were travelling on SR 422, Plaintiff Vetter felt the Defendant was travelling too closely behind Plaintiffs’. Plaintiff Jones noted that Plaintiff Vetter became uncharacteristically mad and tapped the brakes several times to “brake check” the Defendant. As the parties stopped at a red light, Plaintiff Vetter exited his automobile and approached the Defendant’s automobile. Because Plaintiff did not “look right”, the Defendant engaged the gas pedal to flee the area. Defendant struck Plaintiff Vetter. Responding EMTS noted the smell of alcohol from Plaintiff Vetter and that he was combative.

Plaintiff Vetter was charged with driving under the influence, driving with a suspended license and harassment. He would later plead guilty to driving under the influence with a Blood Alcohol Level of .08 to .10 and driving with a suspended license. The harassment charge was dismissed. Plaintiffs filed civil suit against Defendant. At trial, the Defendant was permitted to enter Plaintiff Vetter’s criminal plea and charges into evidence. The jury returned a verdict in favor of Defendant.

Holding

The Superior Court affirmed in part, reversed in part, and remanded for a new trial. The admission of the DUI guilty plea was affirmed. The admission was permissible as overwhelming evidence suggested Plaintiff Vetter was under the influence and unfit to walk. The plea establishes a BAC in excess of the legal limit for operating a car. Without corroborating evidence, such would likely not be admissible as it would be unfairly prejudicial. However, Plaintiff Vetter’s conduct, as described by Plaintiff Jones, the EMTS, and the Defendant reasonably supported a conclusion that Plaintiff Vetter was unfit to walk. Accordingly, the admission of the DUI guilty plea was permissible. However, the harassment charge and driving with a suspended license plea should not have been admitted as such evidence was irrelevant and unfairly prejudicial. The driving with a suspended license is a summary offense and not admissible in a civil matter. With regard to the harassment charge, evidence of arrest without conviction is not admissible in a civil matter.

Questions about this case can be directed to Shayne McGrady, at (570) 820-0240 ext. 8608 or smcgrady@tthlaw.com.

Adams v. Reese

Pennsylvania Superior Court

No. 927 WDA 2016

Decided: March 7, 2017

Plaintiffs cannot amend caption after the expiration of the statute of limitations where doing so would add a new party, not merely correct an existing party’s name.

Background

Plaintiff Adams, was injured when her vehicle was struck by a car owned by Karen Reese and operated by Reeses’ son, Dane Reese. Plaintiffs filed suit naming Karen Reese and her husband, David Reese, as Defendants. In their Complaint, Plaintiffs alleged that David, and not Dane, Reese was the operator of the Reeses’ car at the time of the accident. The Complaint was served at the Reeses’ home, where their son, Dane, also resided.

Defendants filed their Answer after the expiration of the statute of limitations, wherein they stated that Dane Reese, not David Reese, was the operator of the motor vehicle at the time of the accident. Thereafter, Plaintiffs filed a Motion for Leave to Amend Complaint seeking to correct their “typographical error” of mistakenly identifying David Reese as a Defendant and operator of the motor vehicle. Plaintiffs’ motion was denied and the Trial Court granted Defendants’ Motion for Summary Judgment based upon Plaintiffs’ failure to sue the correct party.

Holding

In affirming the Trial Court, the Superior Court found there was not merely a “typographical error” in the Complaint, but that Plaintiffs incorrectly named a completely different person as Defendant. The Court found that Plaintiffs’ intentions and the fact that the proper party resided at the address where the Complaint was served were immaterial. Ultimately, the Superior Court held that Plaintiffs’ sought-after amendment was tantamount to the addition of a new and distinct party after the statute of limitations expired, which Pennsylvania case law “expressly disallows.”

Questions about this case can be directed to Jeff Criswell, at (412) 926-1443 or jcriswell@tthlaw.com.

Davis v. Wright

Pennsylvania Superior Court

2017 PA Super 48

Decided: February 27, 2017

The Dead Man's Statute exists for the protection of a deceased's estate, which may be waived in certain circumstances by the representative of the decedent's estate.

Background

Motorists, Plaintiffs, who were in an accident when traveling in the right lane, brought a negligence action against administrator of estate of motorist, Defendant, who had been traveling in the left lane. Defendant moved for summary judgment which was granted. Plaintiffs appealed, asserting that the Trial Court abused its discretion and otherwise committed an error of law, because there was a waiver of the protections of the Dead Man's Statute by both participation in discovery and a failure of Defendant to timely and properly object in Defendant’s first responsive pleading. Further, Plaintiffs argued that the Trial Court abused its discretion and otherwise committed an error of law, as there were other competent witnesses and documentary evidence, aside from Defendant decedent’s testimony, which established the decedent/Defendant’s liability.

Holding

The Superior Court held that, Defendant was not required to raise application of Dead Man's Statute in the first responsive pleading to Plaintiffs’ negligence complaint, nor as an affirmative defense in the answer as a new matter; the fact that the administrator cross-examined during deposition the officer who completed an investigation report, did not constitute waiver of the protections afforded by the Dead Man's Statute; and testimony by the officer who prepared accident investigation report was insufficient, in and of itself, to create a fact issue as to accident causation. Accordingly, the Trial Court properly determined there were no genuine issues of material fact, Plaintiffs failed to produce evidence to establish a prima facie case of negligence, and Defendant was entitled to the entry of summary judgment as a matter of law.

Questions about this case can be directed to Elizabeth Wiese, at (412) 926-1432 or ewiese@tthlaw.com.

Feleccia v. Lackawanna College

Pennsylvania Superior Court

No. 385 MDA 2016

Decided: February 24, 2017

The Trial Court erroneously granted summary judgment where there were genuine issues of material fact regarding whether a waiver of liability with regard to athletic participation was enforceable, whether Defendants’ use of unqualified athletic trainers constituted negligence per se, whether football players assumed the risk of injury by participating in practice and whether injury sustained during football practice is an inherent risk of football.

Background

Plaintiffs were student athletes at Defendant Lackawanna College, participating in football. On March 22, 2010, Plaintiffs had signed a Waiver which purportedly released Lackawanna from any liability for injury sustained during athletic activity. In August, 2009, Lackawanna had hired two athletic trainers, Ms. Coyne and Ms. Bonisese, who subsequently failed their athletic trainer certification examinations. Following their failure, Lackawanna retitled their positions as “first responders.” On March 29, 2010, Plaintiffs participated in a tackling drill during the first day of spring contact football practice. Ms. Coyne and Ms. Bonisese were the only medical personnel at the practice. Plaintiff Resch sustained a T-7 vertebral fracture during the drill and was attended to by Ms. Coyne. Plaintiff Feleccia sustained a “stinger” during his first tackle, which caused numbness in his arm and shoulder. Ms. Bonisese told Plaintiff that he could return to practice when he was feeling better. Plaintiff returned, made a tackle with his right shoulder, and sustained a traumatic brachial plexus avulsion on his right side.

Plaintiffs brought suit alleging claims of negligence and negligence per se and requesting punitive damages. Lackawanna filed an answer with new matter raising, among other issues, the Waiver and assumption of the risk as defenses. Following discovery, Lackawanna filed a motion for summary judgment, relying primarily on the Waiver and an assumption-of-the-risk defense. The Trial Court granted summary judgment based on the Waiver and, alternatively, on assumption of the risk.

Holding

The Superior Court reversed. The Court agreed that the Waiver was valid, but found that the Trial Court erred in finding it enforceable. The Court held that Lackawanna had a duty to have qualified medical personnel at the practice, and the Trial Court erred by not considering whether this failure was grossly negligent or reckless. Reckless conduct cannot be waived, and the Court found that it was a jury question as to whether Lackawanna breached its duty to have qualified medical personnel available at practice. The Court also found that there was a jury question as to whether Ms. Coyne and Ms. Bonisese were acting as athletic trainers at the practice, and if Lackawanna’s employment of them was negligence per se, as Plaintiffs argued that Lackawanna violated Pennsylvania statute. The Court further found that the Trial Court erred in finding that Plaintiffs had assumed the risk of playing football. Plaintiffs argued, and the Court agreed, that while Plaintiffs were aware of the inherent risks of playing football, they were not aware of Lackawanna’s failure to take reasonable measures to assure their safety by providing qualified trainers at the practice. The Court held that it was a jury question as to whether Plaintiffs assumed a known or obvious danger. While not argued, the Court also discussed whether Plaintiffs injuries resulted from a risk inherent to football. If so, the Court stated that Lackawanna was under no duty to Plaintiffs, and summary judgment would be appropriate. The Court found that the parties offered conflicting testimony as to whether the drill at issue had an application to playing football. The Court found that there was a jury question as to whether the tackling drill at issue is part of the game of football, such that an injury resulting from participation in the drill is an inherent risk of football.

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

MARYLAND CASE SUMMARIES

Balfour Beatty Infastructure, Inc. v. Rummel Kleeper & Kahl, LLP

Maryland Court of Appeals

No. 14, Sept. Term, 2016

Decided: February 21, 2017

The economic loss doctrine applies to professional design tort actions for public construction projects; therefore, in the absence of direct contractual privity or its equivalent, a contractor cannot bring a cause of action against a design professional for purely economic losses.

Background

The City of Baltimore contracted with engineering firm Rummel Kleeper & Kahl, LLP (RKK) to design upgrades to a water treatment plant that would ultimately be subject to a competitive bidding process. Under the terms of the contract, RKK designed plans for two interrelated projects and was responsible for, inter alia, developing drawings and specifications for prospective contractors to use when submitting bids and for the successful bidder(s) to use for construction. Balfour Beatty Infrastructure, Inc. (BBI) was the successful bidder for one of the projects and executed a contract with Baltimore.

According to BBI, leaking due to cracks in expansion joints on the project was due to RKK’s design deficiencies which caused BBI to incur substantial additional costs, expenses, and time to remediate the leaks. BBI also claimed RKK’s design of the pipe support system was defective, that RKK failed to timely design the companion project, and failed to warn BBI and other bidders about the delayed completion of the companion project causing BBI to suffer financial losses and delays. BBI filed a tort action against RKK to recover its financial losses. BBI alleged that RKK owed the contractor a duty based on an “intimate nexus” between the two. The Trial Court dismissed BBI’s complaint holding that the economic loss doctrine prevented it from recovering against RKK for purely economic losses because the parties lacked privity. The Court of Special Appeals affirmed.

Holding

The Court concluded that the economic loss doctrine applies to design professionals on public construction projects. Therefore, it declined to impose tort liability on RKK for purely economic damages where there was neither privity of contract, physical injury, nor risk of physical injury. It reasoned that no tort duty is required because the contractors can allocate their potential risks and losses in the bidding and contracting process. The Court also declined to find an “intimate nexus” between the contractor and the design professional which would impose a duty of care; it reasoned that large scale government construction projects involve a web of contractual agreements and there is no public interest in injecting a tort duty into those types of complex arrangements.

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

Hartford Fire Ins. Co. v. Estate of Sanders

Maryland Court of Special Appeals

No. 2013, Sept. Term, 2015

Decided: March 2, 2017

Non-parties to an orphans’ court proceeding who are aggrieved by the court’s decision may appeal the decision and findings from that decision are only prima facie evidence in subsequent proceedings.

Background

Robert Sanders died without a will. He had been a Plaintiff in asbestos-related litigation that continued after his death. Princess Sanders, his infant daughter, was his sole heir. Charleen Price is Princess’s mother. Price opened a small estate to receive settlement payments from the litigation. Price and Vanessa Sims, Sanders’s sister, were appointed co-personal representatives of Sanders’s Estate. On May 9, 2011, the Orphans’ Court removed Price as co-personal representative. Sims was left as the sole personal representative. In March 2013, Sims obtained from Hartford a $20,000.00 personal representative’s bond. In August 2013, the Law Firm of Peter T. Angelos, who represented Sanders and his Estate, withdrew its appearance from the Estate based on its assertion that on July 12, 2012, Sims had misappropriated $2,500.00 from the Estate and had refused to return the funds. Price was appointed as personal representative. However, Sims still failed to repay the Estate.

On July 28, 2014, the Orphan’s Court for Baltimore City, after a hearing at which Hartford was not on notice, entered an order finding that Sims misappropriated $13,566.23 in Estate assets. Sims failed to pay the $13,566.23 within the Court’s 30-day timeframe and did not appeal its order. Price filed a Petition to Condemn the Hartford bond and the Orphans’ Court condemned the bond for $13,566.23. Hartford appealed to the Circuit Court for Baltimore City, which entered judgment condemning the bond for $3,256.96. The Estate filed for an in banc review. The in banc court reversed the Trial Court and entered judgment against Hartford for $13,566.23. Hartford appealed based on the decision of the in banc Court and not the judgment of the Circuit Court.

Holding

The Court concluded that the Trial Court committed reversible error by refusing to accept the July 2014 Order as evidence that Sims misappropriated $13,566.23 from the Estate. It explained that in an action against the bond, Hartford was not conclusively bound by the misappropriation finding, but was prima facie bound by the finding. Nevertheless, Hartford had the burden of overcoming the prima facie presumption. Therefore, it explained that the Trial Court should have accepted the finding of the Orphan’s Court, embodied in the July 2014 Order that Sims misappropriated $13,566.23, as prima facie binding, unless Hartford presented credible evidence to rebut it. Therefore, it affirmed the judgment of the in banc Court condemning the bond for $13,566.23.

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

 

NEW JERSEY CASE SUMMARIES

Allen v. Nat’l R.R. Passenger Corp.

United States District Court for the District of New Jersey

No. 14-3205-BRM-DEA

Decided: February 27, 2017

Private property owner sidewalk liability can be extended to the adjoining curb where proximate cause can be established between the failure to maintain the sidewalk and the defect in the curb.

Background

Plaintiff brought a cause of action because he fell and suffered injury on an allegedly poorly maintained curb/sidewalk that the Defendants controlled. Plaintiff fell when he stepped out of his work truck en route to a job site in New York City. Defendants included the private owner of the property abutting the sidewalk, the City of New York, and Amtrak, Plaintiff’s employer. All Defendants moved for summary judgment. The private property owner argued that under New Jersey or New York law, there was no duty for an abutting property owner to maintain the curb between the sidewalk and the roadway. The City of New York moved to dismiss based on a failure by Plaintiff to plead that the City had prior written notice of the subject dangerous condition. The motion by Amtrak was based on the assertion that there can be no adverse liability because Plaintiff was injured while commuting to work and that any negligence belongs to the parties in control of the curb/sidewalk, not Amtrak.

Holding

The Court found that there was a question of fact as to whether the private property owner’s alleged failure to maintain the sidewalk adjoining the curb was a proximate cause of Plaintiff’s fall. The Court reasoned that expert testimony suggested failure to maintain the sidewalk could have caused the offending condition of the immediately adjoining curb. Accordingly, irrespective of whether the property owner had a duty directly for the curb as a matter of law, negligence could still be found. Conversely, the City’s motion was granted as matter of law because it satisfied its burden of proof through production of Declarations of records custodians on the issue of lack of notice. Finally, Amtrak’s motion was denied as the Court found material issues of fact as to whether Plaintiff was injured within the scope of employment. Specifically, the Court found several facts on the scope of employment issue persuasive. The Court cited the fact that Plaintiff parked his personal vehicle at an Amtrak site and then drove an Amtrak vehicle to the place of injury. The Court further noted that even though Plaintiff parked on a public street, there had been testimony that Amtrak obtained permission for its employees to park there, an area closed to parking for the general public.

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or dseger@tthlaw.com.

Sullivan v. The Port Authority of N.Y. & N.J.

New Jersey Superior Court, Appellate Division

No. A-3506-14T1

Decided: March 15, 2017

Port Authority is immune from suit under New Jersey’s Whistleblower Statue.

Background

Plaintiff Sullivan, a former at-will employee of Defendant Port Authority of New York and New Jersey, filed suit against the Port Authority and individual Defendants, alleging retaliation and civil conspiracy in violation of New Jersey’s Whistleblower Statute, the New Jersey Conscientious Employee Protection Act (CEPA). Plaintiff became aware of improper conduct and improprieties associated with the exam process for the sergeant position in the Port Authority Public Safety Department, which compromised the integrity of the exam. However, Plaintiff failed to notify anyone of this improper conduct and provided no competent evidence to the contrary. Following an investigation by the Office of Inspector General, the Port Authority's Human Resources Department recommended that Plaintiff be permitted to retire prior to the filing of disciplinary charges for failing to report the improprieties. The Trial Court granted summary judgment and dismissed the Complaint with prejudice, finding the Port Authority is not subject to suit under CEPA.

Holding

The Appellate Division affirmed. The Port Authority is a bi-state agency. Since it is not the agency of a single state but rather a public corporate instrumentality of New Jersey and New York, unilateral action by one state is prohibited without express authorization or concurrence of the legislature of the other state. Therefore, since New York and New Jersey do not have complementary or parallel whistleblower legislation, the Court determined that the Port Authority did not impliedly consent to unilateral state regulation under CEPA. To the contrary, the Court held that clear and unambiguous language in the states' legislation creating the Port Authority and the lack of complementary and parallel whistleblower statutes confirm that New York and New Jersey did not mutually intend to consent to suit against the Port Authority under CEPA. Accordingly, the Port Authority is not subject to suit under CEPA.

Questions about this case can be directed to Robert Fodera, at (909) 574-0510 or RFodera@tthlaw.com.

Resua v. Hachikian

New Jersey Superior Court, Appellate Division

No. A-1685-14T3

Decided: March 9, 2017

Superior Court affirms denial of Plaintiffs’ request for a case management deadline extension to allow late service of expert reports.

Background

Plaintiffs appealed the Trial Court’s order denying their request for an extension of case management deadlines to allow late service of expert reports. Plaintiffs also appealed the subsequent entry of summary judgment in favor of Defendants on the basis that without an expert’s opinion, Plaintiffs could not prove that the motor vehicle accident caused permanent injury thereby exceeding the limitation-on-lawsuit threshold.

The underlying litigation stemmed from a motor vehicle accident. The principal issue was Plaintiffs’ damages, particularly whether Plaintiffs’ damages exceeded the limitation-on-lawsuit threshold. Plaintiffs claimed various soft-tissue injuries. Prior to the expiration of the discovery deadlines, Plaintiffs did not serve an expert report opining that the accident caused permanent injuries. Plaintiffs sought an extension of the discovery deadlines so that they might serve their expert reports opining as to the permanency of the injuries. The Trial Court denied the request and disregarded Plaintiffs’ counsel’s health as an excuse for the late service of the reports.

Holding

The Superior Court affirmed and held that there was no abuse of discretion in denial of Plaintiffs’ request for a third extension of the case management deadlines. The Court reasoned that Plaintiffs did not provide sufficient grounds for disturbing the denial of the discovery extension and late service of expert reports. Thus, without an expert’s certification that the motor vehicle accident caused permanent injury to the Plaintiffs, the Court affirmed the Trial Court’s grant of the Defendants’ summary judgment motion. The Court rejected Plaintiffs various arguments that notwithstanding the discovery extension denial, Plaintiffs’ medical records created a genuine issue of material fact to preclude entry of summary judgment.

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

Karpuzi v. Gallo

New Jersey Superior Court, Appellate Division

No. A-4281-14T3

Decided: March 8, 2017

Failure to comply with administrative directives relating to jury selection is an abuse of discretion and such error will warrant a new trial.

Background

Plaintiff Leila Karpuzi, a minor, was involved in an automobile accident as a passenger. Her father, Plaintiff Idriz Karpuzi brought a negligence action for personal injuries on behalf of Leila and himself, against Defendant Gallo, the driver of the vehicle that struck the car in which Leila was a passenger. The matter was tried before a jury that returned a verdict of “no cause” in favor of Defendant, and the trial court denied Plaintiffs’ motion for a new trial. Plaintiffs appealed the judgment dismissing their complaint and the Trial Court’s order denying their motion for a new trial. Plaintiffs contended the trial court committed various errors that warranted reversal including the Trial Court’s failure to comply with its obligation during jury selection to ask two open-ended questions Plaintiffs requested or two suggested by the Court’s Administrative Directives 4-07.

Holding

In reversing the order denying a new trial, the Appellate Court held that the Trial Court’s failure to comply with its obligation during jury selection to ask at least three questions that required answers in narrative form was an abuse of discretion. The Trial Court’s beliefs, that the information to be elicited by the questions was covered by other questions, and that jurors would never answer a question about their ability to be fair by admitting he or she could not, did not provide a justification for failing to ask at least three open-ended questions. Quoting the directive, the Appellate Court noted “[t]he purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors’ attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. While the Trial Court was within its discretion to reject Plaintiffs’ proposed open-ended questions, it was an abuse of discretion not to ask any other open-ended questions as required by the directives which constituted a reversal error warranting a new trial as it undermined the selection of an impartial jury.

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


VIRGINIA CASE SUMMARY

Gilliam v. Immel

Virginia Supreme Court

795 S.E.2d 458

Decided: January 19, 2017

There was sufficient evidence to support a jury’s award to Plaintiff of zero dollars.

Background

Plaintiff claimed she suffered injuries to her neck, low back, and right shoulder in a rear-end accident. Prior to trial, Defendant admitted negligence, leaving damages as the only issue for the jury. Plaintiff went to the emergency room from the scene of the accident, followed-up with a course of physical therapy, and ultimately had surgery for right bicep tendon and labral tears approximately one year after the subject accident. Plaintiff introduced evidence of approximately $73,000 in medical expenses. In addition, she missed one day of work. Defendant introduced photographs of the back of Plaintiff’s vehicle showing no visible damage.

Plaintiff’s shoulder surgeon testified that the shoulder injury, and resultant surgery, was caused by the subject accident. Plaintiff offered no medical testimony regarding her neck and back injuries. Defendant retained an orthopedic surgeon to perform a records review. At trial, the defense expert testified that the shoulder surgery was not related to the subject accident. He further testified that, based on Plaintiff’s reported symptoms, Plaintiff suffered soft-tissue injuries to her neck and low back in the subject accident and that there is some advantage to medical treatment within the initial six weeks following a soft-tissue injury. Following deliberations, the jury returned a verdict for Plaintiff and assessed damages of zero dollars. Plaintiff appealed, arguing that the jury was required to, at least, award for the lower back and neck injuries, as well as six weeks of treatment for those injuries.

Holding

When a jury has a returned a verdict for zero dollars, the issue is whether a plaintiff produced sufficient evidence to require the jury to award her damages. As the sole judge of the weight to be given witness testimony, the jury was free to credit or discount the defense expert’s testimony, which was based on Plaintiff’s subjective complaints. Furthermore, the burden was on Plaintiff to prove her damages by a preponderance of the evidence and the jury was entitled to find that Plaintiff failed to meet that burden.

Questions about this case can be directed to Lacey Conn, at (703) 338-2054 or lconn@tthlaw.com.