March 2021

Justice Denied, In A Good Way!
Claimant, Mary Justice, was seeking acknowledgment of an alleged cumulative detrimental effects injuries to her back and lower extremities as the result of lifting activities as a school bus aide.
The Board denied Justice’s claim, noting she was not credible as there were numerous inconsistencies throughout the case. Claimant denied having any prior back problems during a defense medical examination with Dr. Rushton and told her own doctor that she had back surgery in 1989 and then no other back problems. The Board noted these statements were “far from the truth” as she had extensive spinal problems since 1989 with several injuries and numerous rounds of treatment over the years, including additional lumbar surgical recommendations, which Claimant also denied during her testimony at the Board. Claimant denied having diabetes, which was contradicted by her own records. She failed to report two other jobs in connection with filing her Petition, despite being specifically asked for this information. She made conflicting statements about when her allegedly work-related back problems started. Her job duties were much less physically demanding than she alleged. She filed numerous prior workers’ compensation claims, but denied them when speaking with the adjuster, and claimed to not be able to remember them during the current Hearing, despite the current Hearing being conducted in front of the same Hearing Officer as a prior Board Hearing. She made statements in the earlier Hearing that were inconsistent with statements made at the current Hearing. Given all of the above inconsistencies, the Board noted that they did not believe that claimant was injured as a result of her job duties as a school bus aide.
Should you have any questions concerning this Decision, please contact John Ellis or any other attorney in our Workers’ Compensation Department.
Mary Justice v. State, IAB Hrg. No. 1494830 (Feb. 5, 2021)
The factual timeline of this case is important and difficult to state succinctly. Following the untimely death of her husband, Plaintiff contacted Defendant, her automobile insurance company, to remove her late husband from the policy.
The next day, Insurer sent the Plaintiff an updated Policy Declaration Packet which documented the changed driver information. Notably absent, however, was an offer to Plaintiff to obtain new or additional uninsured/underinsured (UM/UIM) motorist coverage.
About four months later, Insurer sent Plaintiff a Renewal Packet that contained, amongst other policy documents, a Coverage Offer Form that referred to the opportunity to obtain additional UM/UIM coverage; however, the costs associated with such additional coverage were not provided.
Following an automobile accident, Plaintiff filed a declaratory judgment action requesting that the Court retroactively reform the insurance policy to provide additional UM/UIM coverage (matching her liability limits) due to Insurer’s failure to make a meaningful offer after a material policy change.
The Delaware Superior Court found that the removal of Plaintiff’s deceased husband from the Policy represented a material policy change. Therefore, the dispute hinged on whether or not the Insurer communicated a meaningful offer for additional UM/UIM coverage.
The Court reiterated the requirements representative of a ‘meaningful offer’ in this context, which must include: “(1) the cost of the additional coverage; (2) a communication to the insured which clearly offers [UM/UIM] coverage; and (3) an offer for uninsured motorist coverage made in the same manner and with the same emphasis as the insurer’s other coverage.” Finally, such offer must be timely.
Insurer’s correspondence to Plaintiff, including the renewal communications, failed to satisfy the requirements of a meaningful offer under Delaware law. One glaring deficiency noted by the Court was the absence of the costs associated with the additional coverage. Further, the Court found the renewal communications to be untimely. As such, the policy was reformed to reflect the increased coverage in favor of the Plaintiff.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027 (Del. Super. Ct. Oct. 28, 2020)
Employee Who Admits to Smoking Marijuana at Work Fails to File Timely Unemployment Appeal
Plaintiff worked for Employer from October 2018 and June 2019. In June 2019, Plaintiff suffered a work-related injury and reported for a drug screen, in compliance with the Employer’s policies. The screen came back positive, and the Plaintiff admitted to smoking marijuana. Plaintiff was terminated in accordance with the Employer’s zero-tolerance policy for drug abuse.
Plaintiff filed for unemployment benefits and the Claims Deputy disqualified the Plaintiff from benefits because it was concluded that the Employer terminated the Plaintiff for just cause.  Plaintiff appealed to the Appeals Referee who upheld the decision. Plaintiff had until August 16, 2019, to file an appeal to the Board, and Plaintiff said he filed an appeal on August 11, 2019, but never heard back from the Board, so he filed the appeal again on October 29, 2019. The Board could not locate a record of Plaintiff’s August filing and upheld the Referee’s decision. The Board concluded that the Plaintiff failed to provide proof that a timely appeal was filed, that Plaintiff did not provide any evidence that an administrative error had occurred and there were no severe circumstances sufficient to justify the exercise of the Board’s direction to hear the appeal in the interest in justice. Therefore, Plaintiff filed an appeal to the Superior Court.
An Appeal Referee’s decision shall be deemed to be final unless within 10 days after the day of notification or mailing of such decision further appeal is initialed pursuant to 19 Del. C. §3320. The Court stated that this statutory limit is jurisdictional in nature and failure to comply with it will prohibit the Board from accepting an appeal.  However, in cases of severe circumstances, the Court has found that the Board itself may exercise its discretion under 19 Del. C. §3320 and allow untimely appeals. When the Court reviews whether the Board should have used its authority to take this untimely appeal, the Court must consider whether the Board abused its discretion.
The Court found that there was substantial evidence to deny Plaintiff’s appeal as untimely because there was no proof that Plaintiff submitted a timely appeal. Though plaintiff produced a handwritten letter dated August 11, 2019, which was offered as proof of a timely appeal, there is no evidence that the letter was mailed, there was no postmark or any receipt of mailing.
As to whether severe circumstances existed, the Court found that there were no administrative errors that occurred at the Department of Labor and it would not have been in the interest of justice for the Board to hear the Plaintiff’s appeal. Therefore, the Court concluded that the Board did not abuse its discretion and the Board’s decision was affirmed.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Berry v. Mayor and Council of Middletown, Delaware and The Unemployment Appeal Board, 2021 WL 839081, at *1 (Del.Super., 2021)
Delaware Combined Campaign for Justice
Heckler & Frabizzio is proud to once again be recognized by the Combined Campaign for Justice (CCJ) for having 100% Firm participation in raising money for this incredible organization. The Combined Campaign for Justice has provided legal aid in Delaware for 75 years. To support the CCJ please click the link below.
Mount Pleasant Showcases Civility in First Virtual Delaware High School Mock Trial Competition:
On February 19 & 20, Mount Pleasant High School, coached in part by Greg Skolnik (along with several other Delaware attorneys), competed in Delaware’s First Virtual High School Mock Trial Competition. The team presented four full trials in two days, and were judged by many current Delaware jurists and attorneys. The team earned “The Delaware Way Award,” which is given to the team that the other competing students believe best exemplifies the ideals of Mock Trial and Delaware practice – civility, justice, and fair play. Congratulations Mount Pleasant!
Firm Administrator, Page Chase, and bass fishing die-hards were stunned when the tides were turned, and the largemouth bass caught her! Luckily, Page was caught and released in accordance with the local slot limit. Tight lines!
Please contact Page Chase, Firm Administrator, to submit exciting news including, promotions, adjuster updates, accolades, accomplishments, and the like. You may also submit ads for open positions.