Chapter Leadership Institute
Page Hyson, Firm Administrator is attending the Association of Legal Administrator’s Chapter Leadership Institute in Louisville, KY. This exclusive conference is designed for new ALA Board Members and focuses on growth and leadership.
KENNY FAMILY GOLF CHARITY OUTING
Michael Mitchell, Nicholas Bittner and Michael Torrice, Associates of the Firm, participated in the 23rd annual Kenny Family Foundation Golf Outing on June 18th. Heckler & Frabizzio supports this fundraiser annually, which focuses on promoting social welfare by providing assistance to our neighbors in need and contributing to humanitarian endeavors.
For more pictures and a funny video of Mike Mitchell playing golf click here!
WORKERS’ COMPENSATION REPORT
H&F Workers’ Comp Team Again Reaches Appellate Summit:
Last month we brought you news of Bill Rimmer and Nick Bittner’s success in obtaining a reversal of a Board Decision on Appeal before the Superior Court, an outstanding outcome, especially considering that Department of Labor published data shows that over 90-95% of appealed Board Decisions are upheld every year.
Despite these daunting odds, for the second month in a row we are writing with news of an H&F attorney’s success (this time John Ellis) in convincing the Superior Court to overturn a Board Decision in the matter of This and That Services, Co., Inc., v. Raymond Nieves, C.A. No. S18A-10-003 CAK (June 7, 2019).
Nieves was before the Board on an Appeal of a Utilization Review Determination, challenging the limited issue of narcotic medications written by Dr. Balu. On the eve of Hearing and after depositions had been taken, Claimant filed a Motion seeking to have the appeal dismissed as moot, based on unauthenticated records that purportedly documented that an office visit with Dr. Balu had been paid. The Board granted the Motion before any testimony or record evidence had been submitted.
On Appeal, the Superior Court agreed with Employer’s argument that there was no evidence in the trial record indicating that any prescription expenses had been paid. That was the only issue for Hearing, not whether office visits had been paid. Therefore, there was an actual issue in controversy which was not moot. The Court further noted that had claimant attorney wanted to introduce evidence of any prescription expense payments, it would have been “relatively easy” to do so if in fact such evidence existed. The Court also declined to allow any attorney fee award at this stage in the litigation.
Should you have any questions concerning this Decision or Bill, Nick and/or John’s mountain climbing abilities, please contact any attorney in our Workers’ Compensation Department.
Maria Paris Newill, partner and country music fan, attended the Taste of Country Music Festival in Hunter Mountain, NY where she was a lucky participant in a “meet and greet” with Keith Urban!
Shiree Sibbley, Paralegal, is proud of her three children who all are doing great. Her son, Truth, graduated to the 1st grade, her middle daughter, Asiya, received her drivers license and passed to the 11th grade on honor roll the whole year and her oldest daughter, Zamyra, is going into her 3rd year on an Academic Scholarship at Stevenson University. They are AWESOME children that ROCK.
Game of Thrones
Maria Paris Newill, Partner and her family traveled to Belfast (along with many other cities in the UK). During their journey they saw some of the Game of Thrones sets and props!
Alex Rock, son of Patrick Rock, Managing Partner, is working as a summer intern at the Firm. Alex has been working across multiple departments assisting in whatever capacity is needed. Alex will begin his senior year of high school in the fall.
EMPLOYMENT LAW UPDATE
Employer Defeats Employee’s Claim for Unemployment Benefits
Employee was hired by Employer in 2011 and was promoted in May 2018 to a new position. Within a few months of her promotion, Employee began having issues with job performance. The employee was failing to communicate and respond to messages satisfactorily, was not completing reports, and was not properly supervising her staff. Employee was issued two written warnings. Employee was placed on a Performance Improvement Plan (“PIP”). Employee was to attend weekly and then bi-weekly meetings with her supervisor to address her performance. Employee failed to appear for three scheduled meetings with her supervisor. As a result, Employee was terminated.
Employee filed for unemployment benefits and was awarded benefits by the Claims Deputy. Employer appealed, but the decision was affirmed by the Appeals Referee. The Referee concluded that Employer made a poor hiring decision, the Claimant’s conduct was not intentional, the Claimant possibly needed additional training, and that the Claimant was never explicitly warned that failure to complete the PIP would result in termination. Employer appealed to the Unemployment Insurance Appeal Board.
During the appeal hearing, Employer argued that the Claimant had been warned that her job was in jeopardy if her performance did not improve based on the two written warnings and placement on a PIP. Employer further argued that this was not a case where Claimant needed additional training; Claimant had performed adequately in her new position for four months then her performance declined. Employer does not know why her performance declined because Claimant did not appear at the Referee or the Appeal Board hearing to explain herself.
The Board found that the evidence shows that Claimant was given repeated warnings about her performance problems and that Employer made repeated attempts to work with Claimant to correct these problems. Claimant, however, continued to perform below Employer’s expectations. The Board found that the evidence showed that Claimant’s failure to correct her performance issues rose above the “merely inadvertence or inefficient” performance that is excused from becoming “just cause” under Delaware law. Accordingly, Employer had just cause to terminate Claimant.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
LITIGATION CASE LAW UPDATE
♫ SOMETIMES LOVE JUST AIN’T ENOUGH ♪
TO QUALIFY FOR INSURANCE COVERAGE
Plaintiff was engaged to be married and resided with her Fiancé in Delaware. Although they shared a residence, endless love, and a date for pending nuptials, they maintained separate vehicles and automobile insurance policies.
In November of 2014, the Plaintiff was a passenger in a vehicle that her Fiancé was test-driving. During the test-drive, they were involved in an automobile accident in which the Plaintiff sustained injuries. Subsequently, the Plaintiff sought Personal Injury Protection benefits from her own automobile insurance carrier as well as her Fiancé’s automobile insurance carrier. Both carriers denied coverage – essentially arguing that the Plaintiff was not an ‘insured’ under the policy and that the other coverage was primary. The cornerstone of the dispute was policy language that extended coverage to members of Fiancé’s ‘immediate family’ who have no separate household.
Faced with this coverage dispute, the Delaware Superior Court looked to the underlying insurance policy language. The Court noted that under Delaware law, an insurance contract is a contract of adhesion and therefore ambiguous policy language is to be construed in the insured’s favor and most strongly against the insurance company that drafted the policy. Further, that exclusionary clauses are subject to strict and narrow construction. In denying the dispositive motion practice, the Court found the term ‘immediate family’ to be susceptible to different interpretations and therefore a question of fact to be determined by a jury. Is love enough? – maybe, but that’s for a jury to decide.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Reid v. State Farm Mut. Auto. Ins. Co., et al., 2019 Del. Super. LEXIS 285 (June 18, 2019).