February 2024

Keeping Up with H&F

America’s Top Pet

Lysa Kaminski, legal Secretary, has entered her beloved Boxer “Gemma” into the running for America’s Top Pet. If you would like to vote for Gemma, please click here. Good luck, Gemma!

Total Cuteness

Sharon Arlington, Legal Secretary, wants to spotlight her grandson, Cole, who had his 100th Day of school celebration for kindergarten. The kids had to dress as a 100 year old person. He nailed it!


Another Heckler and Frabizzio

 Supreme Court Win

Re: The Battle of the Codes: Workers’ Compensation vs. Pension

As noted in our September 2023 issue, the Claimant/Appellant, Barry Mullins, was diagnosed with ocular melanoma in 2010 and passed away in 2021. A Petition was filed seeking workers’ compensation based on the Pension Code. The Board found Claimant had failed to prove entitlement to workers’ compensation benefits in relation to his death from ocular melanoma. The Superior Court agreed with the Board Decision. Establishing causation of a work-related occupational disease requires evidence “the employer’s working conditions produced the ailment as a natural incident of the employee’s occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general.” The Supreme Court has affirmed the Decision of both the Superior Court and Industrial Accident Board.

Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.

BARRY MULLINS v. CITY OF WILMINGTON, N23A-01-004 CLS (August 18, 2023).


Superior Court Affirms Board’s Discretionary Power to Decline Appeal Hearings

On September 18, 2022, Claimant filed a Delaware Unemployment Insurance benefits claim.

On November 21, 2022, the Division of Unemployment Insurance’s Claim Deputy issued a determination that Claimant was ineligible for benefits.

Claimant appealed the determination, and an appeals hearing was held on December 21, 2022, but Claimant failed to appear and her claim was dismissed by the Appeals Referee.

On February 7, 2023, Claimant timely appealed the Referee’s decision to the Unemployment Insurance Appeal Board, and the Board remanded the case back to the Appeals Referee on March 1, 2023.

On April 5, 2023, an appeals hearing was held upon remand. The Appeals Referee found that Claimant was ineligible for benefits because she was not considered unemployed or partially unemployed as defined in the Delaware Unemployment Insurance statute.

On April 13, 2023, the decision from the April 5, 2023 hearing was mailed to the Claimant.

On May 12, 2023, Claimant filed an appeal to the Unemployment Insurance Appeal Board. Her appeal was deemed filed eighteen days after the appeal filing deadline enumerated in the Appeals Referee’s Decision.

On June 21, 2023, the Board reviewed Claimant’s case and decided not to take up Claimant’s case for further review. The Board reasoned that Claimant’s appeal to the Board was untimely. Moreover, the Board found no “‘evidence of any severe circumstances sufficient to justify the exercise of the Board’s discretion to hear the appeal in the interests of justice’” despite being untimely.

Claimant appealed her case into the Delaware Superior Court, which affirmed the Board’s decision because the Court found no abuse of discretion in the Board’s denial to hear Claimant’s appeal, and the Court found that the Board’s decision was free of legal error.

As to Claimant’s delay to appeal to the Board, the Court reasoned that “unless the delay is caused by an administrative error, a claimant’s failure to meet the statutory deadline will jurisdictionally bar the Board from accepting appellate review.”

If you have any questions regarding this decision, especially the unemployment claims process, please contact any attorney in our liability department.

Kenerine Fraser v. Unemployment Insurance Appeal Board, C.A. No.: N23A-07-008 CEB (Del. Super. Ct. January 22, 2024)


What Constitutes a Settlement

An Updated Analysis of Essential Settlement Terms

Underlying this case is a homeowner’s dispute with a contractor over home renovation services. Discovery depositions were conducted on the eve of the trial, which gave way to settlement discussions. As is typical in settlement negotiations, there was some back-and-forth negotiating conducted on a relatively informal basis. Initial negotiations occurred in person between counsel for both parties, with plaintiff’s counsel communicating by phone with plaintiff. According to the record, defendant ultimately offered $30,000, payable in three installments, to which plaintiff agreed, and both attorneys shook hands.

Almost immediately after the handshake, defendant demanded inclusion of confidentiality and non-disparagement clauses. The clauses were reportedly requested because plaintiff had already made damaging statements about defendant’s business to potential client. Defense counsel stated he would prepare the settlement agreement with “usual” clauses, and plaintiff’s attorney represented the additional terms would likely not be problematic. The agreement was drafted and sent to plaintiff’s that evening, but plaintiff’s counsel emailed defense counsel later that night expressing concern that his client may not sign it as written. Emails the next morning between counsel discussed trial preparation and defense counsel emailed: “Let me know as soon as you have any updated re: settlement. I need to get my expert back moving on this is this is to go that route.”

In issue now is whether the parties reached a settlement agreement. Plaintiff contends that there was no meeting of the minds. Defendant contends that the parties had agreed to a contract as to settlement. The Court acknowledges that oral agreements are valid in Delaware. The question then is whether the parties had reached an agreement as to all material terms. “The proponent of the settlement has the burden to show by a preponderance of evidence the parties had an agreement.” While the primary and essential term is typically price, the Court found that Defendant’s addition of non-disparagement and confidentiality clauses was an essential term in light of the relationship between the parties. The Court also gave weight to counsels’ trail preparation actions the following morning, which the judge felt “unequivocally shows” that Defendants did not yet believe an agreement had been reached. The motion to enforce settlement was, therefore, denied.

Wanda Roberts v. Moffa Construction Company LLC, C.A. No. S21C-10-017 CAK (Del. Super. Ct., Feb. 6, 2024)