Kent/McBride Wins Summary Judgment in South Jersey Snow and Ice Matter
A Camden County (NJ) Superior Court Judge granted K/M’s Motion for Summary Judgment February 3, 2012 on behalf of a snow and ice removal contractor being sued as a result of a 2010 slip and fall. K/M’s Steve Purcell was representing the contractor in a case where plaintiff alleged that she slipped and fell on an allegedly icy condition on the sidewalk in front of her condominium unit on property owned and operated by Victoriana Condominium Association of Voorhees, Inc. Plaintiff alleged that she suffered serious and various injuries in the fall, including a fractured right foot, a torn right rotator cuff and bulging Thoracic and Lumbar disks in her back, with nerve root involvement. Plaintiff also alleged she would require right knee surgery as a result of injuries from the accident.
K/M’s client, Thorobred Landscaping Company, had a contract with Victoriana for snow removal work at the property. On behalf of Thorobred, Purcell argued the snow removal contract did not require defendant Thorobred to "reinspect" the property after snow removal work was completed following a particular snow event and that the contract specifically obligated the property owner to perform such inspections. Purcell also pointed out to the Court that the contract further provided that additional work by Thorobred subsequent to initial snow removal operations would only be permitted if the property owner called defendant Thorobred and specifically requested additional work at the site.
Invoices and the testimony of Thorobred’s representative confirmed that Thorobred worked at the site on February 10, 2010, following a 17 inch snowstorm. Thorobred was than on site again for the same storm on February 11th and February 12th of 2010. Thereafter, evidence showed that Thorobred was never called back, or requested to do any additional work at the site. In fact, Thorobred produced an e-mail from the property manager dated February 16, 2010, the day prior to Plaintiff’s fall, confirming that the property was in good condition, and the property owner did not want Thorobred to perform any additional calcium or salt applications.
Both plaintiff and Victoriana opposed K/M’s motion, arguing that a jury should be permitted to "infer" that the work performed by Thorobred prior to plaintiff’s slip and fall accident was negligently performed. The Court disagreed, and granted K/M’s motion, dismissing the firm’s client from the case, which will now proceed against the landowner only.
For further information regarding this case, please contact Steve Purcell at 856-382-3707 or Spurcell@kentmcbride.com.
Kent/McBride Opens Western PA Office
Kent & McBride, P.C. is pleased to announce the opening of its Western Pennsylvania office. The office is located in Downtown Pittsburgh at 100 N. 5th Avenue, Pittsburgh, PA. While the firm has long handled matters for its clients in both State and Federal Courts as well as several Workers’ Compensation hearing venues in the Western portion of Pennsylvania, this office is the first staffed and permanent location for K/M in that region. From this location, the firm services clients with regard to all matters venued in Allegheny, Westmoreland, Washington and the other surrounding counties, the United States District Court for the Western District of Pennsylvania as well as Workers’ Compensation hearing venues in the Western portion of the Commonwealth of Pennsylvania as well as Worker’s Compensation hearing venues in the Eastern region of the State of Ohio.
Defense Motion for Summary Judgment Granted In Snow Removal
Contractor Negligence Case
In a fall down personal injury case involving multiple surgeries and a younger female
plaintiff with over $90,000.00 in unpaid medical bills, William Markwardt of Kent & McBride’s
Cherry Hill, New jersey office obtained a summary judgment order on behalf of one of the firm’s
insurance carrier clients, a snow removal contractor headquartered in Gloucester County, New
]ersey.
The plaintiff had fallen on co-defendant’s icy parking lot as she was exiting her vehicle to
visit with her disabled son, a student enrolled at the co-defendant’s training facility.
The co-defendant property owner had already escaped liability on charitable immunity
grounds prior to when the co-defendant’s snow plow contractor, Kent & McBride’s client, was
served with process and joined as a new party defendant.
The snow plow contractor likewise escaped liability by convincing the Court that
although he had performed snow removal services at the subject site in the several week periods
both pre-dating and post-dating plaintiffs falldown, he was not in fact called upon by the co-defendant nor was he otherwise required to perform such services in connection with a particular
rogue snow storm that had started and finished within the 24 hour period immediately preceding
the happening of the plaintiffs accident.
Jack Ribble Addresses PA State Cap Council
Jack Ribble, founder and director of Kent & McBride’s Workers Compensation Practice Group was an invited speaker at the Pa. State UAW CAP Council’s Annual Conference on October 20, 2011 at the Woodlands in Wilkes Barre. He presented the Employer’s perspective in a program exploring the challenges facing injured workers providing contrasting positions to those advanced by national representatives of organized labor, employee advocacy groups and the plaintiff’s bar. The session was lively and, at times, contentious but the trip into the lion’s den was helpful in learning where common ground exists and where misunderstandings arise.
Labor expressed concern over increased physical demands on their members due to economic pressures, mistrust of employer directed medical care, delays in the investigation and ultimate decision of disputed claims and a perceived lack of concern over the personal welfare of an injured employee as contrasted to the expense of the injury on the business. Mr. Ribble explained how system delays and inefficiencies are a shared concern, how all levels of an organization are asked to do a little more, within reason, to preserve the chance to continue, how we are always finding ways to provide better care in the face of continued attempt to avoid panel lists in favor of poorly qualified “Doctor Goodnotes” , extended periods where no treatment of any type was being pursued and how the first contact we often receive following a work injury, even before any decision is made to accept or further investigate the claim, is a letter from an attorney forbidding any contact with their client a/k/a our employee.
Most importantly employer’s frustrations were shared at the use of the Workers Compensation for reasons never intended including a “get even” for workplace disputes and as a supplemental retirement bonus for the general wear and tear of life. Lastly the group was reassured that employers share the pain of all legitimately injured employees but must be judicious in insuring that the benefit is preserved for the truly deserving as part of our overriding interest in protecting everyone’s jobs.
United Way’s “Stuff the Bus”
In August, the attorneys, administration and support staff at Kent & McBride’s center city Philadelphia office collected and donated school supplies to aid the United Way’s annual “Stuff the Bus” program. From crayons to backpacks, the supplies are provided to low-income and homeless children in the Southeastern Pennsylvania area to help start the new school year. This was Kent & McBride’s first year contributing to the program, and the fundraiser was organized by Francis Moritz, Esquire and law clerk Christina Belitz.
Firm’s Attorneys Successfully Defend Appeal
David C. Malatesta, Jr., Esquire and James J. Meehan, III, Esquire of Kent & McBride in our Wilmington, Delaware office were successful in defending an appeal to the Delaware Supreme Court on behalf of one of the firm’s insurance carrier clients. The appeal arose in a case where Mr. Malatesta obtained a defense verdict for the firm’s client in a six-day civil jury trial. The appeal was based on the Plaintiff’s contention that the jury instructions failed to properly distinguish between Plaintiff’s two theories of recovery, common law negligence and res ipsa loquitur. The Delaware Supreme Court found that the jury instructions correctly stated the law, were not confusing or misleading, and that Plaintiff’s contentions lacked both factual and legal merit. For further information, please contact Dave Malatesta at 302-357-3121 or dmalatesta@kentmcbride.com.
Defense Motion for Summary Judgment Granted in Wrongful Death/Personal Injury Automobile Negligence Case
Christopher D. Devanny of Kent & McBride’s Iselin, NJ office successfully argued the defense’s motion for summary judgment in a wrongful death/personal injury lawsuit filed as a result of a motor vehicle accident. The matter was venued in the Essex New Jersey Superior Court. Bradley R. Lawrence, also of Kent & McBride’s Iselin, NJ office, authored the brief.
This case centered on an automobile accident that resulted in the death of one plaintiff and the critical injury of the other plaintiff. The accident took place on the shoulder of the Garden State Parkway, when the plaintiff, suspecting car trouble, moved too quickly from the left lane of the highway to the shoulder, where the defendant’s vehicle was already stopped with its hazard lights engaged. The plaintiff was unable to stop in time, and consequently struck the rear of the defendant’s vehicle, resulting in the aforementioned casualties.
Counsel for plaintiffs argued that the defendants were liable for the accident due to their violation of N.J.S.A. 19:9-1.6, which permits stopping in the shoulder lane only for several enumerated emergency purposes. Admittedly, defendants were stopped for a non-emergent reason. In an attempt to raise a question of fact which would have been within the exclusive province of a jury to decide, counsel for plaintiffs argued that “but for” the violation of the statute, defendants would not have been present in the shoulder, and the accident would not have occurred. Further, counsel argued that the violation of the statute was at least some evidence of negligence, also an issue to be decided by a jury.
In response, Mr. Devanny argued that the defendants’ violation of the statute had no bearing on causation and was not the proximate cause of the accident. Had defendants been stopped for an emergency purpose, as articulated by the statute, the accident still would have occurred. In furtherance of this argument, a number of cases were cited with analogous facts that established defendants’ conduct could not be considered to be the proximate cause of the accident. Finally, Mr. Devanny successfully argued that plaintiff/driver was completely responsible for the accident because he failed to make proper observations and reduce his speed before entering the shoulder. He also argued that, under the Dolson case, the plaintiff was obligated to keep a safe distance from the rear of the defendant’s vehicle, and his failure to do so was the proximate cause of the accident.
After hearing oral argument and reviewing the briefs, Judge Sekou granted the motion and dismissed the complaint with prejudice. For further information, please contact Chris Devanny at 732-781-1309 or cdevanny@kentmcbride.com, or Brad Lawrence at 732-781-1321 or blawrence@kentmcbride.com
Firm Shareholder is a Featured Speaker at Harris Martin New Jersey Asbestos Litigation Conference
Shareholder Kevin Hoffman, who manages the firm's Iselin, New Jersey office, was a speaker at a recent Harris Martin New Jersey Asbestos Litigation Conference conducted at the Heldrich Hotel in New Brunswick, New Jersey on May 4, 2011. Mr. Hoffman participated in a segment of the conference focused on recent developments in New Jersey Asbestos Litigation, including significant decisions affecting the asbestos litigation. The panel looked at, among other things, significant recent verdicts from outside jurisdictions, recent filing trends in New Jersey, including the movement away from bulk filing of asbestotic claims to targeted malignancy claims; the increasing involvement of New York City and "national" asbestos plaintiff's firms in the filing of New Jersey asbestos claims; the sharing of resources between national plaintiffs' firms and New Jersey plaintiffs' firms; and the continued loss of defendants to bankruptcy, including several New Jersey/New York corporations who have faced decades of asbestos claims in the state.
Mr. Hoffman also addressed the New Jersey Supreme's Court's recent denial of certification in Anderson v. AJ Friedman Supply, et als., 416 N.J. Super. 46 (App.Div. 2010), cert.denied at, 205 N.J. 518 (2011). The Anderson case involved a mixed exposure claim brought by Bonnie Anderson, who alleged exposure through the laundering of her husband's work clothes for several decades as well as through direct exposure. Anderson's husband, John, was employed by Exxon at its Bayway Linden facility from 1969 until 2004. During his first twenty years at Exxon, John worked in job positions which brought him into contact with asbestos-containing materials. During this twenty year period, Bonnie Anderson routinely laundered her husband's work clothes, which were alleged to be contaminated with asbestos fibers from John's work at the Bayway facility. In 1975, Bonnie also became an employee of Exxon, working at the Bayway facility, although she worked in different areas and capacities than her husband.
Bonnie was later diagnosed with peritoneal mesothelioma in 2001. She brought suit against Exxon alleging premises liability, arguing that Exxon had sufficient knowledge at the time John started with Exxon in 1965 to take precautions against second hand exposures to those who would foreseeably come into contact with a plant worker's clothes and had a duty to warn persons subject to such foreseeable secondary exposures of the dangers associated with such exposure. Exxon argued that its duty as a premises owner did not extend to a spouse or anyone else allegedly exposed to harmful substances taken off the premises. Exxon also argued that Bonnie's direct employment with the company precluded a third party action against Exxon and that her claim was barred by New Jersey's worker's compensation laws.
During the pendency of the Anderson case, the New Jersey Supreme Court issued its decision in Olivo v. Exxon-Mobil, 186 N.J. 384 (2006) where the Court found that Exxon had a duty to warn the wife-spouse of an exposed plant worker of the dangers of secondary exposure to asbestos fibers brought home on the work clothing of her husband, which the wife routinely handled while doing the laundry. The Court held that similar to a duty a premises owner may owe workers on its premises to warn of dangerous conditions, the premises owner also owes a duty to the spouses of those workers "based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing." The Court specifically limited its holding to the facts at issue in that case--that is, the duty of the premises owner was extended only to a worker's spouse.
Both the trial court and the Appellate Division considering the Anderson case found that Olivo clearly controlled the issue of whether Exxon owed a duty to Bonnie Anderson for exposure incurred from laundering her husband's work clothes. The Appellate Division also affirmed the trial court's determination that Exxon could hold a "dual persona", one as a premises owner owing a duty to Ms. Anderson via secondary,non-employment related exposures, and the other as an employer, who could invoke the worker's compensation bar for injuries suffered via exposures on the job. In this instance, the Court found that Anderson's exposure while laundering her husband's clothes was a substantial contributing factor to the onset of her peritoneal mesothelioma and, thus, her claim was not subject to New Jersey's worker's compensation bar. Anderson received a $7 million jury award after a second damages only trial and her husband was awarded $500,000 for his per quod claim.
At the Harris Martin conference, the panel discussed if, and to what extent, the holdings in Olivo and Anderson might be extended beyond sophisticated industrial premises owners on the defendant-side (e.g., commercial landowners), and beyond just the "spouse" of an exposed worker on the plaintiff-side (e.g., a child, a sibling, a car pool buddy, etc).
For further details, contact Kevin Hoffman at 732-781-1301 or email at khoffman@kentmcbride.com
Healthcare Reform Law Presentation
Jay Branderbit of K/M’s Philadelphia office was a featured speaker and panelist at a Seminar sponsored by the German American and British American Chambers of Commerce held on April 7 at the Union League. Jay spoke relative to the legal challenges made to the March 23, 2010 PPACA, the rulings made thus far, status of appeals and legislative responses to the law both in the House of Representatives and various states. In addition to the planned remarks, there was a question and answer session as to the effects that the new law, and the debate surrounding it, would have on medical practitioners, health insurers, individuals and employers. For further details on this topic, please contact Jay by email at jbranderbit@kentmcbride.com
K/M Attorney Presents Contractual Indemnity Webinar
Jay Branderbit of K/M’s Philadelphia office presented a Webinar for ExecSense on the subject of Contractual Indemnity. The Webinar covered drafting considerations as well as litigation issues concerning the use and application of Indemnity and Insurance provisions in contractual agreements in use across multiple industries, including construction, healthcare, maintenance, landscaping, snow removal among others. In addition to going through the basics of these types of provisions and their interplay, Jay also dealt with potential pitfalls from improper drafting and the necessary action items for prosecuting and defending against the indemnity claim. The Webinar was geared to both in house counsel as well as insurance carrier and private companies. More details concerning the presentation are available by contacting Jay at Jbranderbit@kentmcbride.com
K/M Attorney to Speak at DE Asbestos Litigation Conference
David C. Malatesta, Shareholder of K/M will be one of the presenters at the upcoming Harris Martin Delaware Asbestos Litigation Conference on March 10, 2011. Dave's topic will be Effective Discovery and Efficient Deposition Processes. The Conference is being held at the Hotel du Pont in Wilmington, DE. For further details, contact Dave at (302) 777-5477, and / or dmalatesta@kentmcbride.com.
K/M Successful on Insurance Coverage Appeal
Jay Branderbit and Kelly Scheese of K/M’s Philadelphia, PA office were successful taking an appeal on
behalf of one of the firm’s insurance carrier clients relative to a standing issue under the PA Declaratory
Judgment Act. K/M filed suit on behalf of a defending carrier against two (2) non-defending carriers
in a motor vehicle accident case which resulted in an excess verdict against the firm’s client’s insured,
who was represented by other counsel at trial.. At the trial level of the Declaratory Judgment action
filed by K/M, the non-defending carriers obtained summary judgment based on their argument that the
K/M client had no standing to bring the declaratory judgment action. On appeal, the Superior Court
correctly reversed and remanded the case for further proceedings as to the coverage questions, citing
generously from the K/M brief and oral argument presentation. The court’s opinion was classified as
non-precedential, however, further details as to the arguments proffered can be obtained from Attorneys
Branderbit and Scheese at jbranderbit@kentmcbride.com or kscheese@kentmcbride.com
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