January 2021

Loser Takes All and the Race Against Time Enforcement of Statutory Deadlines
On November 20, 2017, claimant was diagnosed with mesothelioma related to asbestos exposure; he passed on February 24, 2018, and his estate filed a Petition to Determine Compensation Due against C&D Contractors on November 20, 2018. The petition only listed C&D, as they were believed to be the employer responsible for claimant’s “last injurious” asbestos exposure.  As to the claimant’s other past employers, Boulden Plumbing LLC and Emjay Engineering, the claimant did not work for them within the ten-year latency period for developing asbestos-related mesothelioma. Further,  claimant’s work with these companies did not involve asbestos exposure. Accordingly, claimant’s petition did not name these employers. However, more than one year after the Petition was filed, employer defendant, C&D, filed a motion to add these employers as potential defendants; neither employer was given notice of the motion or a chance to respond before the Board granted the request. Receipt of the Board’s Order was the first notice that either employer had of any potential link between claimant’s diagnosis and his employment with them.
Ultimately, both Boulden and Emjay filed Motions to Dismiss which proceeded to an Evidentiary Hearing where Boulden and Emjay presented evidence as to the lack of asbestos exposure as well as the lack of notice. Claimant admitted that he did not file against either employer because it was believed that such claims lacked merit.  C&D’s position, however, was that Boulden and Emjay must be part of the litigation to reserve C&D’s right to pursue indemnification/ contribution against these employers.
The Board soundly rejected C&D’s argument agreeing with Boulden’s position that indemnity and contribution are not permitted in the context of an occupational disease – in fact, the Delaware Supreme Court explicitly recognized that other jurisdictions permitted indemnification while Delaware did not.  The employer/ carrier responsible for the last injurious exposure would be responsible for the entire claim. The Board further agreed with Boulden’s arguments that Boulden must be dismissed because claimant did not meet the statutory deadlines. Section 2361(d) of the Workers’ Compensation Act creates a one-year statute of limitations for occupational diseases, while Section 2342 requires the claimant to provide written notice of the potential link between the diagnosis and the employment within six months of claimant obtaining such knowledge. Because the claimant failed to do so, there is an absolute bar on recovery. C&D could not circumvent those requirements via its motion, and thus Boulden and Emjay were dismissed.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
William McLaughlin v. C&D Contractors, IAB No. 1478363, Jan. 5, 2021.
Plaintiff was injured in a forklift accident caused by malfunctioning brakes. He filed suit against Defendant, the entity contracted to repair and maintain the forklift.
Thereafter, Defendant failed to timely respond to the litigation and Plaintiff moved for a default judgment. Ultimately, the default was granted, and an inquisition hearing was conducted by the Court in which Plaintiff was awarded damages.
In an effort to overturn the award, Defendant moved to vacate the default judgment arguing there was an excusable neglect in not answering the initial complaint. Essentially, Defendant asserted that it never received notice of the litigation due to issues with its registered agent and internal procedural breakdown. Defendant’s agents inadvertently overlooked the pleadings that they received by electronic mail exclusively.
The Delaware Superior Court was not persuaded by the Defendant’s position. The Court acknowledged its general favor for resolving cases on the merits; however, it noted that litigants may not be allowed with impunity to disregard the process of the Court. Inadvertently overlooking the complaint, even in electronic mail form, indicates “that carelessness was more the order of the day than was excusable neglect.” As such, Defendant’s Motion to Vacate Default Judgment was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
White v. Eastern Lift Truck Co., Inc., C.A. No. K19C-03-048 WLW (January 8, 2021)
Unemployment Insurance Board’s Decision Revered in Favor of Plaintiff as Not Supported by Substantial Evidence
Plaintiff was employed with Defendant as a security guard for 6 years.   On one shift, Defendant indicated in the logbook that he had secured the doors in the area he was required to check. However, the following shift discovered a set of doors were not secured and that the logbook was inaccurate. Plaintiff was suspended following an investigation of the incident. Defendant concluded that Plaintiff falsified the logbook and Plaintiff was terminated for violating company policy. Plaintiff filed for unemployment benefits, which were denied by the Claims Deputy.  Plaintiff appealed the decision to the Appeals Referee. The Plaintiff attempted to introduce hearsay evidence but was not permitted to by the Referee. However, the Referee found that Plaintiff was terminated without just cause because the Defendant failed to meet its burden of proving it had a consistently enforced company policy against falsifying records. Defendant appealed the decision to the Unemployment Board who reversed the Appeal Referee decision and found that the Plaintiff was terminated for just cause for violating the policy. The Board also did not allow Plaintiff to introduce hearsay evidence. Plaintiff filed an appeal to the Superior Court.
The Court’s review of the Unemployment Board’s decision is limited to determining whether the Board’s conclusions were supposed by substantial evidence and free from legal error. The Court upheld the Board’s decision that the Defendant had a reasonable company policy and Plaintiff was aware of that policy.  However, the Court found the Board committed legal error by failing to allow Plaintiff to present hearsay evidence and by failing to address whether Plaintiff was entitled to a final warning- because Plaintiff’s conduct was not sufficiently serious to warrant termination without a final warning or because Defendant had previously tolerated similar misconduct by Plaintiff and others such that a warning was required even for willful and wanton misconduct. The Court also found that the record did not include substantial evidence to find that Plaintiff falsified company records. The Court pointed to Defendant’s witnesses’ statements that contradict whether Plaintiff failed to secure the doors.
Therefore, the Court reversed the Board’s decision and remanded it for further proceedings.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
James Igo, v. Acts Retirement Life Communities and The Unemployment Insurance Appeals Board, 2021 WL 37461, at *1 (Del.Super., 2021)
College of Workers’ Compensation Lawyers
Anthony Frabizzio, Of Counsel, has been nominated and elected as a fellow in the College of Workers’ Compensation Lawyers (CWCL). The CWCL is a national organization committed to the practice of Workers’ Compensation creating a network of preeminent defense attorneys. Anthony will be inducted sometime in March. Congratulations, Anthony!
NWCDN State by State Workers’ Compensation Overview
The National Workers’ Compensation Defense Network is offering complimentary presentations and handouts from the 2020 virtual conference. Materials are available until February 12, 2021. Please click HERE to access the information.
Adjuster Continued Education Credits
Please join Gregory Skolnik and John Ellis, Partners, on January 25th from 1pm-4pm to learn all about adjuster code of ethics. This presentation is approved for 3 adjuster ethics credits in Delaware.
The State of Delaware requires resident and non resident licensed adjusters to complete the required 12 credits, including, 3 ethics credits every other year. The biennial license period begins on March 1st and ends the last day in February. If you need adjuster credits to satisfy the requirement by February 2021, or would like to join the presentation on November 19th, please contact Page Chase, Firm Administrator.
Welcome to the Family!
Nick Bittner recently adopted a bonded pair of cats found in an abandoned apartment. Say hello to Frigg and Freyja!
Putting in the Work
 Maria Paris Newill is proud to share that her sons, Nick & Charlie, are doing well while attending High Point University in High Point N.C. Charlie just completed his first semester of freshman year making the Dean’s List.
Good Girl
Lysa Kaminski, secretary, is proud of Gemma her boxer puppy who graduated K9 Obedience school. Keep up the good work, Gemma!
Making Moves
Jesse Callery, law clerk, is making moves he recently got a new apartment and a new vehicle. Congratulations, Jesse!