July 2023


Trial Attorney

Congratulations to managing partner, Patrick Rock for being featured as the 2023 Trial Attorney for Delaware. The Trial Attorneys is the premier independent guide to leading litigation and trial lawyers across the United States. Every year, more than 60,000 nomination forms are distributed to business directors, in-house counsel, industry experts and lawyers in private practice nationwide. A shortlist for each state is formed based on the results of the peer nominations and our own independent research. The team then asses the shortlisted lawyers based on 8 key performance indicators, before a final selection is made for each state. Congratulations, Patrick!

Keeping Up with H&F

Ice Hockey Alumni

Natalie Bogia, HR Assistant Manager, played in a University of Delaware Women’s Ice Hockey Alumni Game on July 15th at Fred Rust Ice Arena. Natalie’s team won 5-4 with minutes to spare.


Suspension of Disbelief – Board Disapproves of Dr. Cary’s Return to Form

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his back, neck, right hand/wrist and head, as well as payment of medical expenses and temporary total disability benefits. Employer disputed the entire claim and, in the alternative, argued for resolution of any work injuries. The Board granted the Petition in part, acknowledging a sprain and strain of the low back and of the right hand/wrist and payment of outstanding medical expenses to the right hand/wrist. The Board denied compensability for the neck and head injury as well as total disability benefits.

A key factor in the outcome involved issues with the claimant’s treating doctor, Dr. Cary. The Board expressed concern as to Dr. Cary’s treatment of the claimant and recordkeeping of same. Dr. Cary’s treatment violated 19 Del. C. Section 2322D(a)(1), which requires that a health-care provider providing treatment to an injured employee under the Delaware Workers’ Compensation Statute be a certified provider at the time of treatment or obtain preauthorization for each health-care produced, office visit, or health service. Dr. Cary was not certified when he started to treat the claimant. Another issue involved Dr. Cary referring the claimant to a work hardening program despite having released the claimant to full-duty work with no restrictions. If the claimant was released to full duty, then the Board found he would not have needed a work hardening program.

As for recordkeeping, the Board found Dr. Cary failed to comply with the requirements relating to prescribing medications, including narcotics. In discussing these requirements, the Board noted Dr. Cary failed to document checking the prescription drug monitoring program. He failed to document discussions with the claimant about the risks and benefits of the medications. When asked about this during deposition testimony, Dr. Cary responded stating he “could not possibly document every single thing that he says or does to a patient and every single thing the patient says to him.”  The Board stated it was “alarming” that after Dr. Cary’s medical license was already suspended previously, he was again not in compliance with his obligations when prescribing medications. The Board explained Dr. Cary was demonstrating “the same types of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license.” Due to these findings, in addition to other evidence, the Board did not find Dr. Cary credible, which contributed to the denial of certain benefits and resolution of the remaining work injuries.

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

Donald Savage v. Shoprite, IAB Hrg. No. 1518646 (May 26, 2023).


Plaintiff Requests FMLA and Attempts to Secure Unemployment Benefits Fails

Plaintiff, during her employment with Defendant, filed for FMLA (Family and Medical Leave Act) due to stress. On May 12, 2022, the Plaintiff was admitted to the hospital after feeling sick at work.  Plaintiff was released to return to work on May 16, 2022, but instead filed for unemployment benefits.  On May 22, 2022, the Plaintiff picked up her FMLA paperwork from work and alleges she was terminated via phone call with the Defendant. The Plaintiff submitted and was approved for FMLA from May 23, 2022, through August 15, 2022. The Plaintiff received notice that her FMLA had been approved on June 4, 2022. The next week, the Plaintiff began working for another employer.

On June 10, 2022, the Plaintiff’s application for unemployment benefits was received by the Claims Deputy, who denied her claim, finding she was ineligible to receive benefits. The Plaintiff appealed and presented her case before the Appeals Referee, who found that the Plaintiff was eligible for benefits. The Defendant appealed the decision to the Unemployment Insurance Board, who heard arguments on October 18, 2022. Following the Board hearing, the Board found that, although the Plaintiff was unemployed starting May 23, 2022, she did not qualify for benefits because her inability to work stemmed from medical records. Therefore, the Board reversed the Appeal Referee’s decision.

The Plaintiff appealed to the Superior Court arguing that she was terminated prior to her FMLA being approved and the disqualification of benefits ended once she became “able and willing” to work. Defendant argues that the Plaintiff was unemployed during the week ending May 23, 2022, and she is still disqualified from benefits because she failed to present evidence that she was able to resume work following her medical leave.

The Superior Court reviews the Board’s findings for substantial evidence, meaning that the Court will not reverse the Board’s findings if there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Under 19 Del. C. § 3302(17), a claimant may be considered unemployed if she performs no services for which wages are payable or if she works less than normal full-time hours.  In this case, the Board found that the Plaintiff was not employed during the week ending May 23, 2022, because she did not perform any service for the Defendant.

Further, when an individual is unable to work due to a physical condition, they are disqualified from benefits. To prove that an individual is “able and available for work,” that individual must present evidence from a doctor confirming that he or she is released to go back to work without restrictions. In this case, the Plaintiff failed to present any such evidence.

Therefore, the Court affirmed the Board’s decision and found that the Plaintiff is not eligible for benefits because she was restricted from performing her job duties due to her medical condition, which was evidenced by her FMLA request.

Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our liability law department.

Kelly v. Felton Automotive Group, 2023 WL 4237272 (Del.Super., 2023)


Hear Ye! Hear Ye! What Sayeth Required for Chancery Court Equitable Jurisdiction?

The Court of Chancery of the State of Delaware granted Defendants’ Motion to Dismiss for failure of subject matter jurisdiction. In so doing, the Court provided the audience with a brief history of Chancery Court jurisdiction dating back to 1776, reviewing that such jurisdiction is limited to cases where effective relief is unavailable in the courts of law.

Plaintiff here pleaded five causes of action against his insurance carrier stemming from a request for underinsured motorist benefits following an accident. Plaintiff contended that he only agreed to resolve his bodily injury case against the tortfeasor because of representations made by his own carriers that his auto policy’s UIM coverage and his motorcycle policy’s UIM coverage would “stack”, thus providing him with double the amount for potential UIM coverage. Once the insurers determined that UIM coverage did not stack, plaintiff brought suit in Chancery Court for various “equitable claims.”

The Court quickly dismissed claims for underinsured motorist benefits, breach of contract and promissory estoppel as claims available in a court of law. The Court further dismissed a “waiver and laches” claim finding that waiver was simply a restatement of the estoppel claim, and that laches is an equitable defense and not a separate cause of action. However, the Court spent some time dealing with the fifth and final remaining claim of “equitable fraud.”

The Court compared equitable fraud to common-law fraud and noted that equitable fraud includes all of the same elements other than a requirement of scienter, but instead requires plaintiff to plead a “special relationship between the parties or other special equities, such as some form of fiduciary relationship or other similar circumstance.” The Chancery Court ultimately concluded that the relationship between an insurer and insured is contractual and not equitable, and thus does not constitute a special relationship sufficient to plead equitable fraud. Having found no property plead equitable claim, the complaint was dismissed with leave to transfer to Superior Court.

Glenn Carpenter v. Liberty Mutual Insurance Co. and LM General Insurance Co., Civ. Act. No. 2022-0628-SG (Del. Ch. Super May 15, 2023)