eNotes Liability: February 2021
February 01, 2021
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Orner v. Int’l Labs., Inc.
United States District Court for the Middle District of Pennsylvania
Decided: November 16, 2020
The Middle District of Pennsylvania holds that filing an entry of appearance and demanding a jury trial does not waive objections to service.
Decedent Raymond Orner received an incorrectly labelled medication from a Wal-Mart pharmacy. Decedent received Simvastatin instead of the prescribed, platelet-inhibiting, Clopidogrel. This mistake caused Decedent to miss weeks of his prescribed medication and increased his risk of life-threatening heart attacks and strokes. Decedent did, in fact, die of a heart attack a month later, and his wife, Plaintiff Cindy Orner brought suit against International Laboratories and Wal-Mart.
Defendant International Laboratories moved to remove the case to federal court. Removal was granted in March 2020, and International Laboratories soon moved to dismiss for improper service. Plaintiff opposed the Motion, arguing that Defendant International Laboratories waived any objections when it took the affirmative steps of having counsel enter an appearance on its behalf and demanding a jury trial. Additionally, Plaintiff opposed the Motion to dismiss by arguing that its service was proper.
The District Court denied the Motion to dismiss because it held that service did comply with 28 U.S.C. § 1448. Before reaching this conclusion, the Court addressed Plaintiff’s first argument. The District Court held that an entry of appearance does not waive a party’s objections to the court’s exercise of objections to service of process. In agreement with the majority of other federal district courts which have addressed the issue, the Court held that a party’s demand for a jury trial does not waive the party’s objections to the sufficiency of service. “A party’s demand for a jury does not ‘demonstrate an intent by the party to use the court’s jurisdiction for adjudication of a substantial right.’” “A demand for a jury signals only a party’s choice as to the procedure by which the facts of a case would be decided in the event of a trial; it does not demonstrate the party’s ‘willingness to engage in extensive litigation in the forum.’”
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or firstname.lastname@example.org.
PENNSYLVANIA CASE SUMMARIES
Erie Ins. Exch. v. Labar
Pennsylvania Superior Court
No. 648 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 116, 2021 WL 118946
Decided: January 13, 2021
Superior Court declines to extend the rational in Gallagher to render the household exclusion inconsistent with Section 1731 of the MVFRL (rejection of UM motorist protection).
AJay King and Cora Labar appealed from a Trial Court decision which granted Erie Insurance Exchange’s Motion for judgment on the pleadings in a declaratory judgment action. King was operating a truck in which Labar was a passenger. Labar was the niece of King’s paramour, Cynthia Mosier, who was residing at their shared home at the time of the accident. The King vehicle was struck head-on by the tortfeasor who did not have insurance.
King owned the truck, which was insured under a commercial auto policy issued by Sentry Select. King was not named as an insured under the Sentry Select policy, but rather the corporate entity “Night Train Express, Inc.” was named. King and Mosier shared a separate automobile policy with Erie for a personal vehicle at the household. King and Mosier initially made a Uninsured Motorist claim under the Sentry Select Policy, which was exhausted. Thereafter, they sought UM benefits through the Erie policy. The Erie policy included a stacking waiver which was executed by King. In its Motion for judgment on the pleadings, Erie argued that the King and Mosier were barred from receiving UM coverage due to either the Household Exclusion in the policy and/or because stacking of benefits was inapplicable.
In addressing the stacking issue, the Superior Court held that under Generette v. Donegal Mut. Ins. Co., King’s execution of a “stacking” waiver was irrelevant to their recovery under Section 1733 of the MVFRL, because they could not “stack” benefits they received from Erie with benefits they previously received from Sentry Select, where they were not “insureds” under that policy. As such, King’s execution of a stacking waiver did not, per se, bar recovery from Erie.
The Superior Court then addressed the remaining issue – whether King and Mosier were barred from recovery due to the household exclusion contained in the policy. The Court declined to extend the rationale in Gallagher to render the household exclusion void as inconsistent with Section 1731 (rejection of UM motorist protection). The Court observed that Gallagher did not mention Section 1731 in its decision and, therefore, Gallagher did not bar the application of the household exclusion, based upon the facts at issue.
Questions about this case can be directed to John Lucy, at (717) 441-7067 or email@example.com.
Hailey v. Baribault
Pennsylvania Superior Court
No. 412 EDA 2020 (unpublished, non-precedential decision)
Decided: December 30, 2020
Workers’ Compensation Act bars an employer’s liability for indemnification for injuries to its employees caused by the negligence of the indemnitee, unless there is an express provision for the contingency in the contract.
This matter arises from a slip and fall at a property owned by landlord, Defendant Baribault, and leased by tenant, Additional Defendant Bancroft Neurohealth. An employee of Bancroft, Plaintiff Hailey, suffered injuries from a slip and fall walking down the steps at the property. Mr. Hailey brought a negligence suit against the landlord, Baribault. Baribault sought to join Bancroft as the tenant of the premises citing a lease between them containing an indemnification clause. The indemnification clause stated that Bancroft will indemnify Baribault against any and all liability to person or property of the premises within the exclusive control of Bancroft. The clause also stated Bancroft had no duty to defend and indemnify if the injury results from Baribault’s negligence or breach of the lease.
Citing this clause, Baribault joined Bancroft in the lawsuit. Bancroft filed a Motion seeking dismissal as a matter of law. The Trial Court concluded that Baribault was precluded from joining Bancroft as an Additional Defendant due to the Workers’ Compensation Act. The Trial Court found the indemnification clause between Bariabult and Bancroft was not sufficiently express or specific to meet this exception and granted summary judgment to Bancroft.
The Superior Court affirmed holding that Baribault failed to prove that the lease between Baribault and Bancroft contained language that would overcome the immunity of the Workers’ Compensation Act. Baribault’s indemnification clause referred to “any personal injury” and “any and all liability.” The Superior Court agreed with the Trial Court’s holding that this boilerplate language was insufficiently specific and express to be given force and effect over the Workers’ Compensation Act. Lastly, the Court mentioned that even if the clause were given effect, a separate clause in the lease would have squashed the joinder attempt as Baribault contracted that the clause would not apply to injuries relating to Baribault’s own negligence. (The Trial Court found that Baribault had notice of the defective condition that led to the injury and chose not to fix the area).
Questions about this case can be directed to Matthew Gerarde at (267) 861-7584 or firstname.lastname@example.org.
Braswell v. Wollard and Dolgencorp, LLC
Pennsylvania Superior Court
No. 2589 EDA 2019
Decided: December 9, 2020
In false arrest/malicious prosecution case, Trial Court made improper credibility determination and failed to recognize issues of fact in granting summary judgment.
This case concerned a retail transaction at a Dollar General when Braswell and the store clerk, Wollard, disputed the amount of change to be returned after a transaction. Braswell asserted he was owed $10 more than he was given and pointed to the receipt showing that he paid with a $20 bill. Wollard disputed that Braswell paid with a $20 bill and claimed that Braswell paid with a $10 bill and was given the correct change. Wollard claimed that the $20 reflected on the receipt was not correct and was merely a number she entered to open the cash drawer. After Braswell and Wollard reviewed store video, they still could not agree and so Braswell took a $10 bill from the cash drawer, which Wollard was holding at the time, and called the police to report the incident. Braswell left the store before the police arrived, and Wollard reported that Braswell had robbed the store. Braswell was arrested. The magistrate determined that based on Wollard’s testimony as to the amount she entered to open the cash drawer and the store video, police had probable cause for the arrest. Braswell could not make bail and was in custody for four months before prosecutors dropped the charges after review of the store video. Braswell sued Wollard and Dolgencorp for false arrest, false imprisonment, malicious prosecution and defamation.
At deposition, Wollard’s account of why the amount of $20 was entered into the cash register changed from being a deliberate act to open the cash drawer to being a “mistake”.
Summary judgment was granted by the Trial Court. The Trial Court first determined that there was no evidence of record that Wollard’s alleged desire to have criminal charges filed against Braswell was the determining factor in the police officer’s decision to arrest Braswell. Without such record evidence of such malice on the part of Wollard, there could be no liability. The Trial Court also determined that even if Wollard intentionally made false statements, the police still had probable cause to arrest Braswell.
The Superior Court reversed the entry of summary judgment. The Superior Court first determined that there was sufficient facts on the issue of malice to send it to the jury. The Court cited to the direct evidence of the receipt, the conflicting testimony of Wollard, Braswell’s summoning of the police, and the decision of the prosecutor to dismiss the case upon review of the store video. The Superior Court also determined that in choosing Wollard’s testimony over Braswell’s circumstantial evidence, the Trial Court made an impermissible determination of credibility. Second, the Superior Court determined that the Trial Court misapplied the law in determining that the arrest would have been made absent Wollard’s reporting of events. As the situation was one of Braswell and Wollard each accusing each other of committing a crime, it was “impossible” for the probable cause determination to be made without being “grounded” in Wollard’s version of events. Without evidence to show the police exercised independent discretion, apart from Wollard’s alleged false report, summary judgment was inappropriate.
Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or email@example.com.
Wilson v. AutoZone Stores, LLC
Pennsylvania Superior Court
No. 140 EDA 2020
Decided: December 2, 2020
Plaintiff’s inconsistent statements regarding notice of a dangerous condition, taken as a whole, were not grounds for new trial.
Plaintiff entered a local AutoZone store and noticed a “gooey, slippery” substance on his new shoes. He told an AutoZone employee that there was a spill in front of the store and that they should clean it up. The employee replied that he only works at AutoZone. Thirty minutes later, after forgetting about the substance, Plaintiff exited the store and slipped on a one to two foot area of oil on the curb directly in front of the store and sustained injury. Evidence showed that the landlord of the store was responsible for the sidewalks and parking lot, but the employees would ensure that the exterior of the store was clean and safe for customers. Following trial, the jury entered a verdict in favor of the Plaintiff. Defendant sought JNOV claiming that Plaintiff assumed the risk of injury because he voluntarily encountered the condition known to him as he left the store. The Trial Court denied the Motion, because the Plaintiff had not actually seen the oil spill on his way into the store.
On appeal, Defendant claimed that it was not liable because it had no duty to warn the Plaintiff/ business invitee of the obvious danger already known to the Plaintiff. The Court determined that Plaintiff’s knowledge that there was an oil spill somewhere outside of the store 30 minutes before he fell, and after he notified an employee of the spill, did not establish that the condition was “known and obvious” to him where he testified to not seeing the oil outside, but only on his shoes once he was inside the store. The Court ruled that because Plaintiff did not know the exact location of the oil spill before his fall, he did not consciously encounter it on the way out. The Court further held that the verdict was not against the weight of the evidence because the evidence was conflicting and was properly left to the jury to decide. Finally, the Court ruled that the denial of Defendant’s request for remittitur or new trial was proper where there was sufficient competent evidence to sustain the verdict.
The Superior Court affirmed the judgment in favor of the Plaintiff because sufficient competent evidence was presented to support the verdict and the minor inconsistencies in Plaintiff’s testimony about his knowledge of the condition were for the jury to decide.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
Daughtry v. Nadel
Maryland Court of Special Appeals
No. 1814, September Term, 2019
Decided: December 16, 2020
No statute of limitations applies to a mortgage foreclosure action.
The Daughtrys were the record owners of a property in Prince George’s County, Maryland. In 2007, the Daughtrys refinanced their property. In 2012, they defaulted on their loan. In December 2018, the servicer of the 2007 Deed of Trust issued a notice of intent to foreclose on the property. In March 2019, the foreclosure action was initiated. The Daughtrys filed a motion to dismiss or stay the foreclosure action, arguing the statute of limitations barred the action. The Trial Court denied the motion to dismiss. Thereafter, the Daughtrys noted an appeal.
The Daughtrys argued that the foreclosure was barred by the three year statute of limitations set forth in Section 5-101 of the Courts and Judicial Proceedings Article. The Daughtrys contended that the three-year statute of limitations applied because Chapter 592 of the 2014 Laws of Maryland exempted foreclosure actions from the twelve-year statute of limitations in Section 5-102 of the Courts and Judicial Proceedings Article. The Substitute Trustees argued that there has never been a statute of limitations applicable to a mortgage foreclosure.
The Court of Special Appeals held that Maryland’s statute of limitations have never been applicable to mortgage foreclosure actions. Foreclosure proceedings have always been an equitable remedy in Maryland. The adoptions of the Courts and Judicial Proceedings Article in 1973 did not change this rule. Furthermore, Maryland’s merger of law and equity in 1984 did not apply to a statute of limitations for a mortgage foreclosure. Finally, exempting mortgages from the twelve years statute of limitations in Section 5-102 did not necessarily mean that the three year statute of limitations applied when it never applied to mortgages in the first instance. Therefore, the foreclosure may move forward.
Questions about this case can be directed to Lauren Upton at (443) 641-0572 or email@example.com.
NJ CASE SUMMARY
Haviland v. Lourdes Med. Ctr. of Burlington County, Inc.
New Jersey Superior Court, Appellate Division
No. A-1349-19T3, ___ N.J. Super. ____
Decided: January 27, 2021
In a medical malpractice action, Plaintiff was not required to submit an Affidavit of Merit to establish the Defendant’s vicarious liability for the negligence of a healthcare professional not expressly listed as a licensed person in the applicable statute.
This reported New Jersey appellate decision dealt with a novel question, requiring the Court to determine whether an affidavit of merit (“AOM”) is mandated under the Affidavit of Merit Statute (“AMS”), N.J.S.A. 2A:53A-26 to 53A-29, when a Plaintiff’s only claim against a health care facility—a licensed entity under the AMS—is a vicarious claim based on the alleged negligence of an employee, who is not a licensed person within the meaning of the AMS and as to whom no AOM is required.
Plaintiff Haviland alleged that, during a radiological exam of his left shoulder at the Defendant facility, a technician instructed Plaintiff to hold weights, contrary to the ordering physician’s instructions. Plaintiff alleged that he suffered resulting shoulder injuries that required surgical repair. The Trial Court advised Plaintiff that he was required to submit an AOM. However, Plaintiff never served one. At the required Ferreira conference, Plaintiff told the Trial Court that he was proceeding against Defendant under only a vicarious liability theory and, therefore, an AOM was not necessary. A radiology technician is not listed as a “licensed person” under the AMS. However, the Defendant itself did meet the definition of a “health care facility” under the AMS. The Trial Court granted Defendant’s motion to dismiss for failure to submit an AOM from a qualified radiologist. Plaintiff appealed from this dismissal.
On appeal, Plaintiff again argued that no AOM was required to establish Defendant’s vicarious liability. The Court agreed and reinstated his Complaint. The Appellate Division noted that Plaintiff claimed to have been injured due to the actions of a radiology technician, which job description is not among the professions listed as a “licensed person” in the AOM statute. Thus, the Court noted that Plaintiff would not have to submit an AOM to support claims of negligence against the technician. Although Defendant, as a health care facility, did fall within the definition of a licensed person, the Court ruled that Plaintiff was not required to submit an AOM to establish Defendant’s vicarious liability for the negligence of a healthcare professional not expressly listed as a licensed person in the AMS.
Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or firstname.lastname@example.org.
Nelson v. Elizabeth Bd. of Educ.
New Jersey Superior Court, Appellate Division
No. A-4580-18T3, ___ N.J. Super. ____
Decided January 26, 2021
Appellate Division reiterates that the consideration of pre-judgment interest is not optional and, in tort cases, its calculation and addition to a judgment is required.
Plaintiff, Kirk Nelson, worked for the Defendant, Elizabeth Board of Education, as its outside counsel. In 2009, the Defendant hired plaintiff to a full-time, salaried, in-house position as counsel; executing an employment contract that renewed on an annual basis through 2012. The parties later executed a three-year employment agreement, which provided that defendant could not terminate plaintiff prior to the end of the three-year term except for cause as defined in the agreement. Plaintiff was subsequently arrested and indicted in connection with an ongoing criminal investigation, which Plaintiff explained was due to his failure to produce a responsive document to a subpoena. Due to the indictment, Plaintiff was terminated from his employment with 18 months left on his contract. Plaintiff was ultimately acquitted on all charges. Plaintiff then filed suit, asserting claims of breach of contract and promissory estoppel. Following a bench trial, the Superior Court Law Division entered judgment for Plaintiff, finding that Defendant had breached the employment contract because he could only be terminated for conviction of a felony, not the return of an indictment. The Defendant appealed, arguing that the Trial Court erred in finding the parties had an enforceable contract and further argued that plaintiff could only recover under quantum meruit.
The Appellate Division rejected Defendant’s arguments and affirmed judgment for Plaintiff. However, the Court held that the Trial Court abused its discretion in denying Plaintiff pre-judgment interest. The Appellate Division further reminded the Trial Courts of the applicable considerations where breach of contract or equitable considerations are involved, even where—as here—the Defendant is a public entity.
The Appellate Division noted that in a contract case the award of prejudgment interest and the rate at which prejudgment interest is calculated is within the sound discretion of the Trial Court. Furthermore, when a party seeks prejudgment interest against a governmental entity, “and interest in the cause is not provided for by statute, particular circumspection in the granting of pre-judgment interest is required and a showing of overriding and compelling equitable reasons must be made in order to justify the award.” Bd. of Educ. v. Levitt, 197 N.J. Super. 239, 244 (App. Div. 1984). In addition, “[a]bsent . . . unusual circumstances the prejudgment interest rate should be the same as that provided for by the rule governing postjudgment interest.” Pressler & Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 4:42-11 (2020). Noting the Defendant Bd. of Ed.’s use of the funds it failed to pay to Plaintiff, the Appellate Division here found it to be an abuse of discretion not to have awarded pre-judgment interest to Plaintiff Nelson.
Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or email@example.com.
DC CASE SUMMARY
Falco v. Wash. Metro. Area Transit Auth.
United States District Court for the District of Columbia
2020 U.S. Dist. LEXIS 14574
Decided: January 29, 2020
Court finds constructive notice of wet floor slip hazard when invitees complained throughout the day.
In the evening, Plaintiff was traveling home on the Washington Area Metro. After exiting her train, Plaintiff slipped and fell on the platform. Other travelers had complained about the slippery conditions as early as that morning. Plaintiff sued the Washington Area Metro for the injuries she sustained to her right leg as a result of the fall. Defendant argued that they lacked notice of the hazard and, therefore, were not liable. Defendant moved for summary judgement.
The US District Court for the District of Columbia held that there was at least a genuine dispute of material fact as to whether Defendant had actual or constructive notice of the wet floor. The Court reasoned that there was at least a dispute of material fact that Defendant had actual notice of the wet platform because it set up wet floor signs and had received numerous complaints throughout the day. In addition, the Court reasoned that there was at least a dispute of material fact that Defendant had constructive notice because the water was on the platform from the early morning until 4:00 p.m., when the Plaintiff fell. Consequently, the Court denied the motion for summary judgement.
Questions about this case can be directed to Ryan Stanley at (202) 945-9504 or firstname.lastname@example.org.