April 2017

Claimant Makes Pour Decision
     On 3/21/17, the Industrial Accident Board issued a Decision finding Claimant forfeited his right to receive workers’ compensation benefits based on his intoxication.

     It was undisputed that Claimant fell 30-feet off the edge of a bridge abutment while at work as a carpenter for Employer, sustaining severe left foot and low back fracture injuries. Following the fall, co-workers and police noticed a strong odor of alcohol on Claimant. Claimant subsequently conceded that he drank heavily every day. On nights before he had work the next day, he would stay up all night drinking a pint of whiskey and at least 6 24oz malt liquor beverages. He would drink until he left for work. He had been involved in multiple prior motor vehicle incidents involving alcohol and was prohibited from driving. Claimant argued, however, that he was a “high functioning” alcoholic, was viewed as a good employee, and did not exhibit any traditional outward indicia of intoxication on the morning of the fall. In other words, he argued his intoxication was not the “but for” cause of the fall.
     The Board disagreed. The Board relied heavily on the testimony of the Employer’s expert forensic toxicologist, Dr. Hameli. He testified that Claimant had a blood alcohol content/BAC at the time of the fall of .156. He testified extensively as to the deleterious effects this level of alcohol would have on any individual, including grossly altered perception, mental confusion, impaired judgment, disorientation, dizziness, and impairment of muscular coordination. Dr. Hameli provided unrebutted testimony that Claimant’s chronic alcoholism would not cause him to feel these effects to a lesser extent than a non-alcoholic. Co-worker testimony further supported that alcohol/drinking was the cause of the fall because Claimant walked out to an unprotected concrete ledge, at heights, knowing he had been up all night drinking, without wearing required fall protection equipment, and lost his balance and fell when he attempted to grab a wooden board that was unsecured. It was Claimant’s job to secure the board and he had been working around the board all morning, so he should have known it was loose. Claimant would not have lost his balance or engaged in such behavior but for his intoxication.
      If you have any questions or concerns regarding this Decision, please contact Greg Skolnik, or any other of our workers’ compensation attorneys.
Blisard v. Mumford & Miller, IAB Hrg. No. 1442303 (March 21, 2017).

A Criminal Plea Supports Punitive Damages

          The fact that criminal and civil litigation often intertwine is axiomatic; the adverse effects, however, are significantly less obvious. This is nowhere more evident than in the case of an auto accident. A driver that pays a citation for a traffic violation may not intend to admit fault to substantial civil litigation.
     The Delaware Superior Court recently addressed these circumstances in the context of a punitive damages claim. The factual background is simple. Following an auto accident, the defendant was charged with various driving offenses and plead guilty to reckless driving. The derivative civil litigation included a plea for punitive damages. Under Delaware law, a prima faciecase for punitive damages can be maintained if the tortfeasor’s driving exhibited a willful and wanton disregard for the safety of others.
     The defendant initiated motion practice to dismiss the punitive damages claim on the basis that insufficient evidence existed to meet the standard justifying such damages. The Court reviewed the language of the reckless driving statute, specifically:  “No person shall drive any vehicle in wilful or wanton disregard for the safety of persons or property…” 21 Del. C. § 4175. In concluding the defendant’s plea was an admission to wilful and wanton conduct, the Court permitted the punitive damages claim to remain.
    Perhaps most interestingly, the Court recited methods available to distinguish a prior criminal plea, including:

 …explain[ing] to the jury his choice to enter a plea, the advice given to him by counsel, and he may even attempt to discount his presumptive mental state based on the circumstances surrounding the plea. The jury may then draw any inferences from the plea that was that was entered and any surrounding circumstances, including the defendant’s explanation.

        For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.
Tumminello v. Baldoza, 2017 Del. Super. LEXIS *116 (Mar. 15, 2017).

State Police’s Claim of Sovereign Immunity Denied in Motion for Summary Judgement
     Under the Eleventh Amendment, Government entities, both Federal and State, are generally protected from being sued without consent. This is commonly known as “sovereign immunity.” The government may waive this protection and States often provide this waiver through passage of laws. In Delaware, Title VII employment discrimination suits fall into the narrow category of claims which allow for monetary damages against the State. This is codified in 19 Del. C. §710(7), which “explicitly allows for recovery against state entities for employment discrimination.”
In order to prove a claim of racial discrimination by an employer for a disciplinary action, a plaintiff must show that he was part of “a Title VII protected class . . ., that he engaged in prohibited conduct similar to that of a person [outside of plaintiff’s protected class] and that plaintiff was disciplined more severely than the other person.” The Court has held that such evidence makes out a prima facie case of discriminatory punishment.
       In Martinez v. Delaware State Police & Delaware State Troopers Association, Andrel Martinez (“Plaintiff”) raised a Claim under Title VII of racial employment discrimination in regard to the disciplinary actions taken for his unlawful access to the Delaware Criminal Justice Information System (“DELJIS”).  Following a series of unlawful activites by the Plaintiff, including unauthorized access to the DELJIS system, on May 2, 2015, he was fired after seventeen and a half years with the Delaware State Police. The State Police assert that Plaintiff was terminated following the revocation of his access to the DELJIS system. Plaintiff instead asserts that unlike his white counterparts, he was treated more severely for the unauthorized access to DELJIS and was terminated and prosecuted based on his Hispanic race.
      In denying the State Police’s Motion for Summary Judgement, the Court found under Delaware Law, the State had waived Sovereign Immunity for any Title VII actions, allowing Plaintiff to bring his claim for monetary relief. Further, the Court found that Plaintiff had presented enough evidence to create a “plausible claim” that his race was a motivating factor in the disciplinary decisions made by the State Police. In doing so, Plaintiff alleged that the depth of the investigation and the State Police’s involvement in the DELJIS proceeding led to the DELJIS Board’s ultimate decision to revoke his privileges. Further, Plaintiff alleges that the actions taken were more severe than that taken for his four white counterparts, who also unlawfully accessed the DELJIS system. While the Court states that Plaintiff need not prove his case at the present time, it does conclude that the evidence presented is enough that Plaintiff has a “plausible claim for relief.”
   For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Martinez v. Del. State Police & Del. State Troopers Ass’n, 2016 U.S. Dist. LEXIS 162279 (Dist. Ct. Del. Nov. 23, 2016).

April 13, 1743
Thomas Jefferson Born
Thomas Jefferson was born on April 13, 1743 in colonial Virginia. He graduated from the College of William & Mary and briefly practiced law. During the American Revolution, he represented Virginia in the Continental Congress and as was a principal author of the Declaration of Independence, later drafted the law for religious freedom as a Virginia legislator, and also served as a wartime governor of Virginia (1779-1781). He became the United States Minister to France in May 1785, and subsequently the nation’s first Secretary of State in 1790-1793 under President George Washington. Jefferson and James Madison organized the Democratic-Republican Party to oppose the Federalist Party during the formation of the first party system. With Madison, he anonymously wrote the Kentucky and Virginia Resolutions in 1798-1799, which sought to embolden states’ rights in opposition to the national government by nullifying the Alien and Sedition Acts. Jefferson was elected the second Vice President of the United States, serving under John Adams from 1797 to 1801 and served as the third President of the United States from 1801 to 1809, during which he organized the Louisiana Purchase, almost doubling the country’s territory.

DSBA WC Seminar Speakers
On Tuesday, May 2, 2017 from 8:30 AM – 4:30 PM, attorneys Anthony Frabizzio and John J. Ellis will be speaking at the seminar on Workers’ Compensation. The Workers’ Compensation section of the Delaware State Bar Association is sponsoring this seminar provides 6.5 hours of CLE credit, including 1.0 hours of Enhanced Ethics for Delaware and Pennsylvania attorneys. This will take place in New Castle County at the Chase Center on the Riverfront. Lunch will be included! For more information please visit the

DSBA’s website.

Dan Out to Pastor
Heckler and Frabizzio announces that Dan McKenty will be leaving the firm and the practice of law on May 19
th to become pastor of First Presbyterian Church of Ocean City, Maryland. Dan has practiced insurance defense litigation for 29 years and, until September of 2016, was a partner in the firm’s Liability Department when he stepped down to further pursue his call to ministry. Dan says that he will miss the many close relationships he has formed with the firm’s clients over the years and will dearly miss his colleagues at the firm. We wish Dan the best in all of his future endeavors.
Adjusters Continuing Education Program
 Heckler & Frabizzio is proud to announce we have developed multiple seminars that we are offering to our clients at no charge. All seminars are approved by the Delaware Department of Insurance and will include continuing education credits!
 Topics include: Basic Workers’ Compensation overview, Terminating Total Disability, Delaware Investigations and our newest seminar Adjuster Ethics! For more information regarding our seminars please contact Page Hyson Firm Administrator.