February 2022

We are Back &
Better Than Ever
As of 2/1/22, Heckler & Frabizzio welcomed back in the office all H&F employees. Moving forward, we will continue to offer our preeminent, service excellence while utilizing a long-term hybrid work schedule. Our dedicated staff remain ready to serve our clients’ needs throughout the regular work week, but some will be working remotely, and others will be in office. For many business reasons including Firm Team building, Tuesdays have been designated as an “all in” day. We hope that we can count on everyone’s support and cooperation with our new normal.
Keeping up with H&F
Welcome to the Bar!
Congratulations to Aaron Black for being admitted to the Delaware Bar. Aaron began worked with our Firm in 2020 and has been a great asset to Heckler & Frabizzio. Congratulations, Aaron!
Lemmy’s Birthday
Maria Paris Newill (partner) would like to share her happiness and gratitude for the joy her dog (a hairless, Chinese Crested), has brought to her & her family this past year. Happy Birthday to Lemmy as he turns one year old on 2/23/22.
Unconnected and Rejected – Board Denies Petition for Lack of Any Connection to the Alleged Employer
On June 28, 2018, claimant allegedly suffered an injury to his right eye. A Petition was filed shortly before the expiration of the statute of limitations in 2020, and it named Benchmark Builders as the claimant’s employer. During the course of discovery, claimant indicated he was injured while working at a specific development in Middletown, Delaware, and identified blueprints and photographs as evidence of same. Benchmark denied the claim, as they never employed the claimant and did not believe the accident could have occurred when and where alleged.
At a Hearing, the evidence presented that claimant was brought to the jobsite by an individual, Onellas Morales; who provided tools and instructions. No one knew who he worked for, and his van had no logos or lettering. In addition, he paid the workers in cash. Claimant introduced the blueprints and photographs as evidence that he worked for Benchmark at the Middletown development. However, the Employer then testified and reviewed the documents – the blueprints were dated as being created in 2019, the year after the accident. The development in question broke ground in 2019 and was an open field in June 2018. The photographs showed houses that did not match the blueprints, and they lacked any signage relating to Benchmark.
The Board denied claimant’s Petition, finding no evidence he worked for Benchmark or was even injured at a Benchmark job site. The Board also considered a theory of liability under 19 Del. C. § 2311, which can hold a general contractor responsible when the subcontractor lacks valid Delaware workers’ compensation insurance. However, claimant could not prove any chain of employment linking back to Benchmark. To succeed under Section 2311, claimant must prove he worked for Benchmark or a subcontractor (or even a sub-subcontractor) of Benchmark on a Benchmark worksite. Because no one knew who brought on Mr. Morales or where the injury occurred, claimant’s Petition was denied outright.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Denilson Mendez v. Benchmark Builders, IAB No. 1496799 (Feb. 2, 2022).
Board Fails to Consider Relevant Evidence in Plaintiff’s Unemployment Claim
Plaintiff worked as a seasonal cashier for Defendant. As a seasonal employee, the Plaintiff’s hours were subject to fluctuation based on the store’s sales and she could be scheduled to work a range of ten to forty hours per week.
The Plaintiff resigned in November 2020 after seeing she was scheduled to work zero hours for the next two weeks. Defendant states that the Plaintiff’s hours were not eliminated entirely, but they were reduced. The Plaintiff filed for unemployment benefits. The Claims Deputy denied her claim, finding she voluntarily quit her job without good cause. The Plaintiff appealed to the Appeals Referee who affirmed the Deputy’s decision. The Plaintiff then appealed to the Board, who affirmed the Referee’s decision, finding that the Plaintiff voluntarily quit because she was “dissatisfied with the number of hours” she had been scheduled to work. Lastly, the Plaintiff appealed to the Superior Court and argued she quit for good cause because (1) the Defendant completely eliminated her hours; and (2) management was unable to tell the Plaintiff when she would be scheduled to work in the future. The Plaintiff also argued that she did not receive a fair hearing in front of the Board.
The Court reviews the Board’s decision for legal errors. The Court must find that the Board’s decision was based on substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Under 19 Del. C. §3314 (1), an individual does not qualify for unemployment benefits when he or she leaves work “voluntarily without good cause attributable to such work.”  The Plaintiff bears the burden of proving she is entitled to benefits. Good cause exists when (1) an employee voluntarily leaves employment for reasons attributable to issues within the employer’s control and under circumstances in which no reasonable prudent employee would have remained; and (2) the employee first exhausts all reasonable alternatives to resolve the issues before voluntarily leaving is or her employment.
The Court found that the Plaintiff was not a full-time employee with a guarantee of forty hours of work per week. However, the Court found that the Board failed to resolve the factual dispute of whether the Plaintiff’s hours were reduced in accordance with her seasonal employment contract or instead, eliminated entirely. In addition, the Board purposely omitted and refused to consider documentation produced by the Defendant. Therefore, the Court found that the Board’s decision was not reasonable based on substantial evidence.  However, the Court did find that the Plaintiff exhausted her administrative remedies before resigning because she brought the scheduling issue to the attention of her manager.
In conclusion, the Court reversed and remanded the Board’s decision for further proceedings to resolve the factual issue.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Neece v. Unempl. Ins. App. Bd., CV K21A-05-001 RLG, 2022 WL 130870, at *1 (Del. Super. Jan. 14, 2022)
A Spouse’s Second Bite at the Apple
Following a motor vehicle accident, Plaintiff’s wife sued Defendant in the Delaware Justice of the Peace Court for property damage sustained to a vehicle titled exclusively to her. In that case, Plaintiff testified, and Defendant ultimately prevailed.
Subsequently, Plaintiff brought a personal injury action against Defendant arising from the same accident. In response, Defendant moved to dismiss the litigation arguing it was barred under the doctrine of res judicata and, moreover, that Plaintiff was collaterally estopped from making the claim.
Under Delaware law, the doctrines of collateral estoppel and res judicata are related and essentially operate to prevent relitigating factual issues or causes of action that were previously adjudicated. To effectively bar a claim, both doctrines require the trial court to find that the parties in the present action are either the same or in privity with the parties from the action previously adjudicated. Thus, the central issue before the Delaware Superior Court was whether the legal relationship between spouses, paired with one spouse testifying in court for the other, establishes privity.
The Court reviewed case law from a variety of jurisdictions which generally did not support a finding of privity based merely on marital status, even when grounded in the same act. Moreover, the prior litigation was specifically limited to the claims related to the property of Plaintiff’s wife. As such, the Court held that privity did not exist between Plaintiff and his wife in the prior action; therefore, Defendant’s dispositive motion was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Johnson v. Jester, 2022 WL 102097 (Del. Super. Ct. Jan. 10, 2022).