January 2018
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LITIGATION CASE LAW UPDATE
If You Want PIP, Jump In Your Car Quick
 In February of 2016, Plaintiff was standing next to his vehicle, preparing to unlock the door to grab a tool inside. Before he actually touched or began to unlock the vehicle, a tree fell and struck him and his vehicle.
The plaintiff applied for PIP benefits which were denied by his insurance company. Plaintiff filed suit against his PIP carrier arguing (1) he was entitled to PIP benefits because he was an occupant of his vehicle at the time he was injured; (2) his vehicle was an “active accessory” in causing the injury; and (3) the tree falling does not constitute an act of independent significance. The PIP carrier moved for summary judgment arguing plaintiff is not entitled to PIP benefits because plaintiff’s injury “did not arise out of the use of his vehicle” and the vehicle was not an “active accessory” in causing the injury.
In addressing the Motion, the Delaware Superior Court relied on the Fisher and Kelty Tests. First, under the Fisherstandard, Plaintiff was found to qualify as an occupant of his vehicle because he was within a reasonable geographic perimeter of the vehicle at the time of the incident. However, under the Kelty test, the Court held that the plaintiff’s vehicle was not an “active accessory” in causing his injuries. The Court reasoned that the only connection between the plaintiff and the vehicle was that he was standing next to the vehicle when the tree fell on him. Therefore, the PIP carrier’s Motion for summary judgment was granted, and the denial of PIP benefits upheld.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Jarrett v. Titan Indemnity Co., 2017 Del. Super. LEXIS 649 (Del. Super. Ct. December 11, 2017.)
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WORKERS’ COMPENSATION REPORT
Board Denies Petition For Surgery
As Claimant’s Treating Physician Fails Pop Quiz On Pre-Existing History:
Claimant was involved in a slip and fall accident at work in 2013, resulting in extensive left knee and ankle surgeries which were accepted as compensable by Employer. Four years later, Claimant filed a Petition seeking acknowledgement that the right knee had been injured in the slip and fall, and payment of right knee surgery performed by Dr. Andrisani.
The Board denied the Petition, finding the testimony of Dr. Andrisani not credible. The Board noted that Dr. Andrisani “did not seem to know about Claimant’s preinjury knee condition.” He “had no idea” that claimant had objective findings of swelling and crepitus in the knee in the years before the accident, multiple injections, and an office visit with his primary care physician just 4 months before the accident where he complained of 6/10 knee problems and wondered if he had a torn meniscus in the right knee because his pain felt similar to what he felt in his left knee “years prior” when he had torn the meniscus in that knee. Dr. Andrisani did not know that at that primary care visit, claimant’s physician documented tenderness and swelling in the medial portion of the knee, which was the same area of the knee that Dr. Andrisani ultimately operated on in 2017. The Board also felt that it was extremely important that following the 2013 work accident, claimant had attended over 70 medical appointments over the next year, without any physician recording any type of right knee complaint. Therefore, they found the testimony of the defense medical expert, that any tear in the right knee was pre-existing and degenerative, to be much more persuasive than Dr. Andrisani’s testimony.
 Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.
James Hill v. State, IAB Hrg. No. 1392394 (Dec. 4, 2017).
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EMPLOYMENT CASE LAW UPDATE
Untucked and Unemployed:
Appeal Board’s Decision Upheld After Finding of Dress Code Violation
 Under Delaware law, employees are entitled to unemployment benefits following the separation from employer through no fault of their own. Once an employee files for unemployment benefits, an employer may rebut the employee’s rights to unemployment benefits by showing that the employee was fired for “just-cause.” Just-cause is defined as “a willful or wanton act or pattern of conduct in violation of the employer’s interest, the employee’s duties, or the employee’s expected standard of conduct.” When the employer asserts that employee was fired for violation of a company policy, the Delaware Courts have applied a two-step test to determine if just-cause existed: “1) whether a policy existed, and if so, what conduct was prohibited, and 2) whether the employee was apprised of the policy, and if so, how was he made aware.” In general, proof that the employee was made aware can be established through either a signed acknowledgement of the company polices and/or the existence of written polices, such as an employee handbook.In Barnard v. Delaware Park Management Company, LLC,Christina Barnard (“Barnard”) asserts that the Unemployment Insurance Appeal Board’s decision denying unemployment benefits and finding that she was fired for just-cause should be overturned as not supported by “substantial evidence.” Prior to her termination, Barnard was employed as a cage cashier from May 2014 until May 18, 2015. On April 15, 2015, Barnard was issued a three-day suspension and final warning for violating Employer’s “appearance and dress code” and noting that “she must keep her … shirt tucked in at all times.” This was in accordance with Employers’ five-step disciplinary protocol and was Barnard’s forth violation of the policy. A month following the suspension, a formal meeting was held to address Barnard’s noncompliance. The following day, on May 14, 2015, Barnard appeared at work with her shirt untucked in violation of the Dress Code. On May 18, 2015, Employer terminated Barnard’s employment.
In upholding the Appeal Board’s Decision, the Superior Court found that Barnard was aware that she was violating the Employer’s dress code by not tucking in her shirt. Barnard received written notice of this policy twice, noting that her shirt must be tucked in at all times. In the final notice, Barnard was warned that “[f]uture violations . . . may result in disciplinary action up to and including discharge [.]” Further, the day prior to her final violation, Employer held a meeting and directly informed her of the violation. The Court held that this behavior indicated that Barnard acted “willfully and wantonly against the known polices and was terminated for just cause,” and accordingly disqualifying her from any entitlement to unemployment benefits.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
Barnard v. Delaware Park Management Company, LLC, et al., C.A. No. N17A-05-002 RRC (Del. Supr. Jan. 3, 2018).
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THIS DAY IN LEGAL HISTORY
January 18, 1943
The United States Bans Pre-Sliced Bread
On January 18, 1943, during World War II, sliced bread was briefly banned in America, when the head of the War Foods Administration as well as the Secretary of Agriculture, Claude R. Wickard, got the bright idea to ban pre-sliced bread. The reasons behind the ban are not entirely clear, though it was reportedly to conserve resources, particularly wax paper, wheat, and steel. Pursuant to FDA regulations, pre-sliced bread used much thicker wax paper than loaves sold whole, as sliced bread went stale faster than loaves left unsliced. While this was the official stated reason for the ban, there was no shortage of wax paper at the time the ban was put in place, as most bread making companies had wax paper supplies on hand to last many months. A likely secondary goal was to try to conserve wheat and to lower bread and flour prices, since during the war the Office of Price Administration had authorized an increase in flour prices by about 10%, which resulted in the price of bread increasing, and it was thought that by banning pre-sliced bread, the amount of bread consumed would go down, reducing prices and increasing stockpiles of wheat. As for conserving steel, the bread-making machines did use some steel in the manufacturing process, but most of the bread producers at the time were not actively buying new bread slicing machines, and the amount of metal used in the production of the large-sized machines was minor.
Not surprisingly, the masses were quite disappointed when they learned about the ban. Pre-sliced bread’s popularity in U.S. households was so widespread following its introduction in 1928, that it even led to the expression: “the best thing since sliced bread.” A New York newspaper published a letter from an agitated housewife about her dissatisfaction over the ban:
“I should like to let you know how important sliced bread is to the morale and saneness of a household. My husband and four children are all in a rush during and after breakfast. Without ready-sliced bread I must do the slicing for toast – two pieces for each one – that’s ten. For their lunches I must cut by hand at least twenty slices, for two sandwiches apiece. Afterward I make my own toast. Twenty-two slices of bread to be cut in a hurry!”
Needless to say, the ban was rescinded 3 months later in March 1943.
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