DSBA WC Seminar Speakers
On Wednesday, May 2, 2018 from 8:30 AM – 4:30 PM, H&F partner Maria Paris Newill and attorney 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 which provides 6.5 hours of CLE credit, including 1.0 hour 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.
Congratulations to Attorney Michele Subers
H&F associate Michele Subers successfully passed the Pennsylvania Bar Exam. Michele, in addition to being admitted in Delaware, is now available to serve our clients who have cases in the PA jurisdiction. We are excited to see what the future holds for Ms. Subers.
H&F Wall of Fame
Our preeminent attorneys have been recognized year after year for their excellence. Below is our “Wall of Fame” we started back in 2015 to showcase our attorneys’ accomplishments. Special mention goes to our receptionist, Nancy Osborn, for receiving the Myrna L. Rubenstein Professional Support Recognition Award. (Bottom Left)
Continuing Education Program for Adjusters
Partner Patrick G. Rock traveled to Dallas, TX in March to present a seminar to one of our clients. All seminars are approved by the Delaware Department of Insurance and will include continuing education credits!
Topics include: Basic Workers’ Compensation overview (3 credits), Terminating Total Disability (1 credit), Adjuster Ethics (3 credits) as well as Delaware Investigations (2 credits).
For more information regarding our seminars, please contact Page Hyson Firm Administrator.
WORKERS’ COMPENSATION REPORT
HOT OFF THE PRESS
Delaware Supreme Court Rejects Novel Claimant Attorney “Charging Lien” Argument
Claimant sustained a compensable right-hand laceration at work on November 12, 2013. Claimant subsequently was hospitalized for high blood pressure and chest pain; the employer questioned the causation connection to the laceration, and subsequent treatment was initially denied as unrelated to the laceration. Claimant retained an attorney, who issued a demand to the employer for payment of the hospital provider’s invoice directly to and in the name of the claimant and claimant’s attorney, asserting an attorney lien against the proceeds. The request for payment was denied on causation.
Claimant obtained an expert report relating the hospital treatment to the initial laceration, requested payment of the bill, and again advised that payment for same was to be sent to and made payable to claimant and claimant’s attorney so he could take attorney fees from the proceeds pursuant to his fee agreement with the claimant. The employer paid the bill directly to the hospital. Claimant filed a Petition seeking acknowledgement of the claim and payment of the hospital bill. Prior to the 30-day rule for the Hearing, employer’s counsel notified claimant’s attorney that the hospital bill was paid. Claimant’s attorney demanded an additional attorney fee payment of 1/3 of the bill pursuant to the asserted attorney lien against the proceeds paid to the hospital. The merit Hearing was cancelled, and a Legal Hearing held on the issue of whether claimant’s attorney was entitled to an attorneys fee. The Board denied the request. Claimant appealed to Superior Court arguing claimant’s attorney was entitled to a common law based “charging lien” against the proceeds paid to the medical provider. Since the medical expenses were not paid through claimant’s attorney’s office, claimant’s attorney asserted he was now entitled to a 1/3 attorney fee of the amount of the medical expenses to be paid by the employer.
The Superior Court affirmed the Board’s ruling. The Court noted that claimant’s reliance on statutory language requiring the carrier to reimburse the claimant for bills paid by the claimant was misplaced, as the claimant had not actually paid the hospital bill. The Court noted this result was consistent with workers’ compensation act requirements that where there is no dispute that treatment is compensable, the bill is to be paid directly to the provider by the employer. The Court also found that the equitable remedy of an attorney “charging lien”, against the settlement/medical expense payment proceeds, was not available because no money was owed by the employer to claimant. The money was owed to the provider and was paid. Claimant’s attorney never obtained funds for his client to which she was entitled. The Court found significant that the workers’ compensation act specifically allows for attorney’s fees or “charging liens” in other scenarios, but not the situation raised by claimant’s attorney. Finally, the Court questioned whether the claimant had “standing” to take an appeal seeking payment to her attorney alone. The claimant appealed to the Delaware Supreme Court reiterating the arguments made before the Superior Court.
The Supreme Court issued an Order again denying claimant’s arguments and noting that the Board properly rejected all legal arguments that were raised by claimant’s attorney to support his attorney “charging lien” theory of recovery.
Should you have any questions concerning this Decision, please contact John Gilbert, or any other attorney in our Workers’ Compensation Department.
Milourde Decembre v. Perdue Farms, LLC, No. 336, 2017 (Del. Mar. 22, 2018).
LITIGATION CASE LAW UPDATE
We’ll Pick You Up
But You Figure Out How To Turn On The Lights
On February 21, 2013, a motor vehicle collision took place in Sussex County. The Defendant’s vehicle was a rental car owned by Enterprise Leasing Company. Plaintiff alleges that she was unable to see the Defendant driver’s vehicle at the time of the collision because he was operating the vehicle in the dark without headlights. However, the Defendant testified at her deposition that the car’s headlights came on when she turned on the vehicle. Following the accident, the Plaintiff filed suit against the driver and Enterprise.
Plaintiff alleges Enterprise had a duty to instruct the driver how to use the vehicle’s headlight system. Further, Enterprise negligently entrusted the vehicle to the driver when they failed to so instruct her. Defendant filed a motion for Summary Judgment.
Negligent Entrustment requires: (1) entrustment of the automobile, (2) to a reckless or incompetent driver whom (3) the person entrusting the vehicle has reason to know is reckless or incompetent and (4) the entrustment leads to damages.
The Court found that Enterprise had no duty to instruct the driver on how to use the vehicle’s headlight system. The Court said to rule otherwise “would simply be impractical in light of the size of the rental car business.” The Court also noted that the Defendant was a licensed driver which created a presumption that she was fully capable of operating a standard rental car. Regarding Plaintiff’s negligent entrustment claim, the Court found no evidence that Enterprise had reason to know the Defendant driver was reckless or incompetent. Therefore, Defendant’s Motion was granted.
Should you have any questions concerning this Decision or any other liability law questions, please contact any attorney in our Liability Law Department.
Cannon v. Bolden, et al., 2018 Del. Super, LEXIS 139 (Del. Super. Ct. March 27, 2018)
PROPOSED HOUSE BILL NO. 262
Below is proposed House Bill No. 262 that seeks to declare as an unfair method of competition and unfair deceptive act, for an insurance carrier to revoke or attempt to revoke an offer of settlement made to an insured unless the insurer has a reasonable belief that the insured committed fraud against the insurer in relation to the insurance policy at issue. This proposed Bill, in our opinion, likely is in violation of Delaware Rule of Evidence 408, which pertains to offers to compromise. Additionally, this Bill would create challenges for the insurance company because once a case goes into litigation and the defense counsel begins investigation, defense counsel may locate mitigating factors that deem the original offer to be excessive. We encourage you to work with your lobbyist in Delaware to oppose this Bill, as it can only be prejudicial to the insurance carrier. Additionally, this Bill would likely increase the volume of and costs of litigation by discouraging offers to be made or encouraging offers at lower values than would otherwise be made. This in turn would cause more cases to proceed to litigation that would otherwise settle with unconstrained negotiation.
SPONSOR: Rep. Paradee & Sen. Bushweller
HOUSE OF REPRESENTATIVES 149th GENERAL ASSEMBLY
HOUSE BILL NO. 262
AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO UNFAIR PRACTICES IN THE INSURANCE
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
1 Section 1. Amend § 2304, Title 18 of the Delaware Code by making deletions as shown by strike through and
2 insertions as shown by underline as follows:
3 § 2304. Unfair methods of competition and unfair or deceptive acts or practices defined.
4 The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices in
5 thebusiness of insurance:
6 (16) Unfair claim settlement practices. – No person shall commit or perform with such frequency as to
7 indicate a general business practice any of the following:
8 o. Revoking or attempting to revoke an offer of settlement made to an insured, unless the insurer has a
9 reasonable belief that the insured committed fraud against the insurer in relation to the insurrutce policy at issue.
10 Section 2. This Act takes effect 90 days after its enactment into law.
This Act prohibits insurance companies from revoking, or attempting to revoke, an offer of settlement made to an insured, except in circumstances where the insurer reasonably believes the insured has committed fraud against the insurer.
EMPLOYMENT CASE LAW UPDATE
High Times And Embalming Fluid:
Illicit Prescription For Employment Termination
Under 19 Del C. §3323(a), the Unemployment Insurance Appeals Board’s (“UIAB”) decisions may be appealed to the Delaware Superior Court, which has limited jurisdiction “to review for errors of law, together with a limited factual review.” Generally, this means that the Superior Court’s jurisdiction is limited to whether there was substantial evidence to support the UIAB’s finding and whether such findings are free from legal error. In evaluating such evidence, the “Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.”
In Yolanda Bouyer-Bello v. Tricell Communications, LLC, Ms. Bouyer-Bello (“Plaintiff”) had appealed the UIAB’s finding that her employer, Tricell Communications (“Defendant”) had just cause to terminate her employment with the company. In the Hearing, before the Appeals Referee and the UIAB, Defendant presented the testimony of its District Manager, who stated he fired Plaintiff after she left the store unmanned at which she was employed. Plaintiff was found behind the store, smoking a cigarette, soaked in embalming fluid. When the District Manager asked the Plaintiff if she was high, she responded with a smile and by nodding affirmatively.
In upholding the UIAB’s Decision not to award unemployment benefits to Plaintiff, the Court stated that there was substantial evidence to support the finding below. The Court stated that the UIAB had found the District Manager’s testimony to be more credible than the testimony of Plaintiff. Citing 19 Del. C. 3323(a), the Court offered that credibility determinations are appropriately left for the finder of fact, which in this case was the UIAB. The Court held that “the record reveal[ed] no facts sufficient to warrant departing from the Board’s decision.”
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Bouyer-Bello v. Tricell Communications, LLC, C.A. No. K17A-09-004 JJC (Del. Supr. March 12, 2018).
THIS DAY IN LEGAL HISTORY
April 18, 1775
On April 18th, 1775, 700 British soldiers under the command of Lieutenant Colonel Francis Smith gathered on Boston Common and boarded ships to raid Concord Massachusetts to seize arms and gunpowder the British learned were being stockpiled by the American Patriots. These British soldiers included eight companies of grenadiers, or soldiers who stood on the frontlines and heaved grenades at the enemy, and eight companies of light infantry. During this time, Paul Revere, along with two other riders, William Dawes and Samuel Prescott, began their nighttime rides to rouse the minutemen and warn citizens of an attack. Paul Revere rode to Lexington, where Samuel Adams and John Hancock were staying en route to the Second Continental Congress, and managed to persuade Adams and Hancock to leave the city for their safety as they faced possible arrest. Roused by Paul Revere, William Dawes and Samuel Prescott, the minutemen had time to gather to meet the British on April 19, resulting in the Battles of Lexington and Concord, marking the initial skirmishes between the British regulars and the American provincials, and is often referred to as the “Shot heard around the world” (which phrase was penned by Ralph Waldo Emerson in the Concord Hymn in 1837) because of the global impact of these events when they occurred, and which reverberate to this day. Paul Revere was later captured, but fortunately for the Patriots, this occurred after the news of a British attack had already been conveyed. The ride of Paul Revere was later immortalized in 1861 by Henry Wadsworth Longfellow, in his now famous fourteen stanza poem, Paul Revere’s Ride, which begins as follows:
Listen, my children, and you shall hear
Of the midnight ride of Paul Revere,
On the eighteenth of April, in Seventy-Five:
Hardly a man is now alive
Who remembers that famous day and year.
He said to his friend, “If the British march
By land or sea from the town to-night,
Hang a lantern aloft in the belfry-arch
Of the North-Church-tower, as a signal-light,–
One if by land, and two if by sea;
And I on the opposite shore will be,
Ready to ride and spread the alarm
Through every Middlesex village and farm,
For the country-folk to be up and to arm.”