Law Alerts

Special Health Law Alert

Supreme Court's False Claims Decision: A Temporary Win For Health Care Providers?

Special Pennsylvania Professional Liability Case Law Alert - March 2008

The U.S. Supreme Court Holds That The Enforceability Of A Contract Containing An Arbitration Clause Is A Matter For Arbitration, Not Litigation

Special Pennsylvania Professional Liability Case Law Alerts - January 2008

Pennsylvania -- Pennsylvania's Consumer Protection Law Does Not Apply To Attorney's Misconduct In Collecting And Distributing Settlement Proceeds
Superior Court Maintains Tough Stance On Accrual Of Legal Malpractice Claims

Architectural, Engineering & Construction

The U.S. Court Of Appeals For The Third Circuit Recently Considered The Continued Viability Of Pennsylvania's Economic Loss Doctrine

Auto

Florida -- Insurer Is Not Required To Set Aside A Reserve For Disputed PIP Claims
New Jersey -- Ambiguities In Declarations Page And Policy Allow Insureds To Obtain Double Underinsured Motorist Coverage
Ohio -- Statute Of Limitations For UM Claim Begins To Run On Date Of Accident, Not Date Insured Learns That Tortfeasor Is Uninsured.

Aviation

New York -- Reducing Damages From $300,000 To $300 Under The Montreal Convention

Civil Rights

Pennsylvania -- Even Where The Underlying Lawsuit Is Found To Be Without Merit, A Municipality May Still Be Subject To Litigation And Liability If They Take Action In Retaliation For An Employee Filing Suit
Pennsylvania -- Where An Individual Sends Profane And Threatening Letters To Municipal Officials, The Police Are Within Their Rights, And The Individual's Rights Are Not Per Se Violated, When Police Escort Him Within Municipal Property

E & O Coverage (Legal, Accounting, Insurance, Real Estate, Etc.)

Delaware -- Bernstein v. TractManager, Inc., 953 A.2d 1003 (Del. Ch. 2007)
New Jersey -- Trial Court's Dismissal With Prejudice Of Malpractice Claim Against Accountant For Failure To Timely File The Required Affidavit Of Merit Reversed And Dismissed Without Prejudice Where Defendant Suffered No Prejudice, Plaintiff Had Potentially Meritorious Claim, And Where The Court Failed To Convene The Required Affidavit Of Merit Conference, Known As The Ferreira Conference
New Jersey -- An Attorney Who Is Sued For Malpractice In A Claim Which Arises Out Of A Dissatisfied Settlement Can Raise The Puder Defense Only If The Attorney Was Former Counsel To Plaintiff. Further, Even If The Attorney Was Former Counsel, The Attorney Cannot Raise The Puder Defense For Causes Of Action Not Pertaining To The Settlement
New Jersey -- Judicial Estoppel Can Be Raised To Defeat A Claim For Legal Malpractice Where The Plaintiff Voluntarily Assumes A Previous Legal Posture And Prevails
New Jersey -- Where An Attorney Fails To File A Complaint Within The Statute Of Limitations, A Claim For Legal Malpractice Will Fail Where The Plaintiff Cannot Sustain The Burden Of Proof By A Preponderance Of The Evidence That The Plaintiff Would Have Won The Claim Against The Underlying Tortfeasor
Pennsylvania -- Attorney May Be Liable Under Dragonetti Act Despite Relying Upon Client Representations Where Attorney Took No Action To View Actual Documents Prior To Filing Suit
Pennsylvania -- Law Firm Properly Denied Coverage For Malpractice Claim Under "Prior Knowledge" Exception, Despite Former Client's Assurance That No Suit Would Be Filed

Employment Law

Federal -- The United States Supreme Court Holds That Employers Bear The Burden Of Proving That Employment Decisions Are Based On "Reasonable Factors Other Than Age"
Federal -- The United States Supreme Court Holds That The Civil Rights Act Of 1991 Provides A Retaliation Cause Of Act For Employees Pursuant To § 1981
Federal -- The Third Circuit Holds That The Employer Did Not "Regard" Employee As Disabled When It Refused To Reinstate Employee To Previous Job Following An Injury
Federal -- The Third Circuit Holds That A Mixed-Motive Plaintiff Cannot Establish A Title VII Prima Facie Case If There Is Unchallenged And Objective Evidence That He Is Unqualified For The Position He Seeks To Retain
New Jersey -- Given The Purpose And Public Policy Underlying The New Jersey Conscientious Employee Protection Act (CEPA), An Offer Of Judgment Filed By An Employer Is Effective And Will Not Limit A Claimant's Ability To Seek Recovery Of Counsel Fees, Nor Will It Allow An Employer To Seek A Recovery After Defeating A Frivolous Claim
New Jersey -- Notwithstanding The Absence Of Any Language In The CEPA Statute, Supervisors May Be Individually Liable For Violations
New Jersey -- In A Disability Discrimination Claim, A Claimant Must Offer Proof Of A Specific Adverse Employment Action. The Mere Refusal To Provide Accommodation Is Not Sufficient
New Jersey -- A Single Comment Which Is Capable Of Contaminating The Workplace Is Sufficient To Maintain A Claim Of A Hostile Work Environment
Ohio -- "Get Grants Or Perish": Third Appellate District Upholds Academic Tenure Denial
Ohio -- Seventh Appellate District Finds Genuine Issues Of Material Fact Regarding A Workers' Compensation Statutory Retaliatory Discharge Claim
Ohio -- Arbitration Agreements May Not Be Invalidated Absent Specific Facts Showing Substantive Unconscionability
Ohio -- Sixth Circuit Court Of Appeals Affirms Summary Judgment For University Defendants In A Racial Discrimination Case Where The Plaintiff Failed To Establish Pretext

General Liability

Pennsylvania -- Court Affirmed An Order Denying Indemnification For A Party's Own Negligence
Pennsylvania -- "No Duty" Rule Precludes Finding Of Liability Against The Amateur Softball Association Of America For Injuries Sustained By A Player Struck In The Head
New Jersey -- New Jersey High Court Holds That A Cause Of Action For Prima Facie Tort Is Limited Exclusively To Those Instances That Do Not Fall Within A Traditional Tort Cause Of Action
Florida -- Plaintiff's Claim Failed As A Matter Of Law Because It Was Not An "Accident" Under The Montreal Convention Governing Air Travel
Ohio -- Summary Judgment In Favor Of Defendant Affirmed Because A Trailer Is Not A Structure Under R.C. 3781.06(C)(2) And Because The Lack Of A Handrail On The Steps Was Open And Obvious

Health Care Liability

Florida -- The Court Found That Even If The Presuit Requirements Were Not Followed By The Defendant In Regards To The Production Of Records, Plaintiff Still Had An Obligation To Enter Into A Good Faith Investigation Regarding The Claim
Florida -- The Court Found That An HMO Settlement Did Not Result In A Setoff In A Medical Negligence Case
Florida -- The Court Overruled A Trial Court Order Allowing The Sharing Of Confidential Information For A Medical Device Designed By Cortis And Johnson & Johnson In A Products Case
Pennsylvania -- Commonwealth Court Rules That Writ Of Summons Does Not Trigger 180-Day Statutory Period For Physician To File For Coverage Under MCARE

Municipal Liability

New Jersey -- Plaintiffs Not Entitled To Punitive Damages Against Public Entity For Claims Brought Under New Jersey Civil Rights Act
New Jersey -- Plaintiffs Are Not Required To File A Notice Of Tort Claims Pursuant To The New Jersey Tort Claims Act

Securities & Investments Professional Liability

Arbitration Award Vacated For Manifest Disregard Of The Law
State Securities Regulator Permitted To Intervene In Petition To Confirm Arbitration Award
California Court Voids Non-Compete Contract

Technology, Media & Intellectual Property

Copyright -- A Builder Or Architect May Still Be Liable For Copyright Infringement Of An Architectural Work Even When The Interior Features Of A Building Are Different Than The Interior Features Of A Registered Design For A Similar Building
Technology -- The U.S. Court Of Appeals For The Third Circuit Recently Considered The Continued Viability Of Pennsylvania's Economic Loss Doctrine

Workers' Compensation

Delaware -- Superior Court Affirms The Board's Dismissal Of Claimant's Petition For Disability Benefits On The Basis That The Alleged Work Accident Never Occurred
New Jersey -- The Appellate Division Upholds The Finding Which Places More Credibility On The Evaluating Physician Over The Treating Physician; Therefore, The Petitioner Does Not Have To Show That Her Injury Contributed In A Material Degree To Her Inability To Work In Order To Obtain Temporary Disability
New Jersey -- The Appellate Division Overturns Interlocutory Order From The Workers' Compensation Court Which Found That The Carrier Was Estopped From Denying Coverage By Providing A Defense To Its "Insured"
Pennsylvania -- A Disability Date Determined By The Claimant's Medical Expert Cannot Be Contradicted By The Claimant's Testimony Of An Earlier Date Of Disability
Pennsylvania -- The Commonwealth Court Addresses The Issue Of Scope Of A Remand By The Workers' Compensation Appeal Board To The Workers' Compensation Judge Where The Initial Decision Did Not Correctly Address The Occupational Disease Presumption Pursuant to § 301(e) And § 108(o) Of The Act
Pennsylvania -- In A Hearing Loss Claim, The Notice Period Begins When The Claimant Receives A Medical Opinion Stating That The Hearing Loss Is Work Related. The Mere Belief Of The Claimant That His Hearing Loss Is Work Related Does Not Trigger The Notice Provision
Pennsylvania -- The Commonwealth Court Holds That Under §306(c)(23) Of The Act, A Bilateral Loss Claimant Can Continue To Receive Disability Benefits, Regardless Of The Claimant's Post-Injury Earning Power
Pennsylvania -- The Commonwealth Court Holds That §306(a.2) Of The Pennsylvania Workers' Compensation Act Requires A Claimant To Have Reached A Maximum Medical Improvement Before An Impairment Rating Can Be Calculated
Pennsylvania -- Although The Workers' Compensation Appeal Board Has The Discretion To Increase A Workers' Compensation Judge's Disfigurement Award, It Must Provide An Adequate Explanation For The Adjustment
Pennsylvania -- Where A Third Party Action Was Not Contemplated At The Time Of Settlement By Compromise & Release, An Employer Does Not Bargain Away Its Subrogation Rights By Checking The Box Marked "No" In Paragraph 11 Of The Compromise And Release Agreement
Pennsylvania -- A Workers' Compensation Judge Does Have Jurisdiction To Reassign An Employer's Request For Utilization Review To A Utilization Review Organization
Pennsylvania -- The Employer Who Seeks A Termination Of Benefits Where There Have Been No Prior Proceedings Or Judicial Determinations Need Not Establish That The Claimant's Physical Condition Has Improved Or Changed. The Burden Is To Show That The Claimant Has Fully Recovered From The Accepted Work Injuries For A Termination Of Benefits To Be Ordered
Pennsylvania -- A Claimant Who Seeks To Avoid Having Benefits Suspended Based On A Voluntary Removal From The Entire Work Force Must Show That He Is Actively Seeking Employment. Searching The Internet And Newspaper Ads For Jobs Does Not Constitute A Good Faith Job Search; Thus, The Employer Is Entitled To A Suspension Of Workers' Compensation Benefits
Pennsylvania -- Penalties And Unreasonable Contest Attorney's Fees Cannot Be Assessed Against The Security Fund As the Security Fund Is Not An "Insurer" As the Term Is Defined In The Pennsylvania Workers' Compensation Act
Pennsylvania -- An Employer Defending A Claim Petition On The Grounds That The Injury Occurred While The Claimant Was Employed Elsewhere Is Under No Duty To Join The Other Employer In Order To Pursue This Defense
Pennsylvania -- An Award of Litigation Costs To A Claimant Is Not Warranted Where A Claimant Does Not Prevail On Any Disputed Issue Before The Workers' Compensation Judge And The Workers' Compensation Judge Awarded The Claimant No Financial Benefit Beyond The Medical Expenses The Employer Previously Agreed To Pay