November Newsletter

Keeping up with H&F
Welcome to the World!
Congratulations to Kristen Steele, paralegal, who welcomed her healthy little boy, Mason Parker, on November 1st. Mason weighed 8 lbs 7 oz. and was 21 inches long. Both mom and baby are doing great. Congratulations, Kristen!
New Puppy
Jess Lee, paralegal, adds “Tux” to the family. Tux is a Rottweiler German Sheppard mix and he is happily settling into his new home with his sister Ava and his brother Moon.
Row, Row, Row Your Boat
Congratulations to Sophia Elliot, secretary, who completed her first season of racing with a masters crew at Wilmington Rowing Center. Sophia’s team got second place at the Head of the Schuykill Regatta, on October 30th.
Hype Man
Carmella Cinaglia, law clerk, just quit her job after being invited to be the “hype man” for the Jonas Brothers. Joe Jonas personally invited Carmella to join their band after witnessing her enthusiasm and influence over the crowd.
Claimant Only Permitted One Bite at the Apple – Permanency Claim Denied:
Claimant filed a Petition seeking 14% permanency to the right upper extremity (shoulder), as rated by Dr. Rodgers. Following a Hearing, the Board issued a Decision, commenting that although they felt that there was likely some applicable permanency rating due to the work injury, Claimant had not met his burden of proof as to there being 14% impairment. The Board specifically noted that it was uncomfortable with Dr. Rodgers’ permanent impairment rating when his testimony made it clear that he had not reviewed medical records documenting prior right shoulder injuries and treatment.
Claimant then provided Dr. Rodgers with the pre-existing medical records. Dr. Rodgers issued an addendum maintaining the same rating. Claimant re-filed the Petition.
Following a Legal Hearing, the Board dismissed the Petition, finding the same was precluded by res judicata and/or collateral estoppel.
Should you have any questions regarding this Decision, please contact John Ellis or any other attorney in our Workers’ Compensation Department.
St. James v. State, IAB Hrg. No. 1490378 (Oct. 28, 2021)(ORDER)
Plaintiff Survives Employer’s Attempts to Justify Lack of Warning Before Termination
In the course of his employment with the Defendant, the Plaintiff thought he was wrongfully denied a raise. The Plaintiff complained to his manager, which led to an altercation.  The parties had different versions as to the details of the altercation, but the Plaintiff was eventually terminated without receiving a warning. Plaintiff filed for unemployment benefits and the Defendant explained that the Plaintiff was terminated for fighting – which amounted to a “sufficiently serious,” offense warranting termination without a warning per the employee handbook.
When evaluating the testimony of the Plaintiff and Defendant as to events that unfolded during the altercation, the Board accepted some of the Defendant’s testimony but found the Plaintiff’s story more believable. The Plaintiff testified that he entered an area he routinely accessed to speak with his superior, who escalated the conversation by repeatedly threatening to terminate the Plaintiff.  According to a witness for the Defendant, the Plaintiff entered a restricted area to confront his manager by screaming and acting aggressively. Though the Board thought the Plaintiff behaved “unprofessionally,” it found that the Defendant failed to prove that the Plaintiff’s conduct was “willful” or “wanton” to warrant immediate termination for just cause.
Defendant appealed to the Superior Court, which has jurisdiction to hear appeals from the Board’s decisions. The Court defers to the Board’s factual findings and its application of the law to the facts were supported by substantial evidence and without legal error. Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The Defendant bears the burden that the termination was based on just cause. A warning is generally required unless the employee’s conduct is “sufficiently serious”, and that is a factual question for the Board.
The Court found that the Board’s decision was supported by substantial evidence and as such, must be upheld. The Court concluded that the Board correctly observed the law before applying it to Defendant’s evidence and the Defendant did not present sufficient evidence to convince the Board that the Plaintiff’s conduct rose to the level where he could be terminated for just cause without warning. Therefore, the Court affirmed the Board’s decision.
Should you have any questions regarding this decision, or any liability law questions, please contact any attorney in our Liability Law Department.
Tesla Industries, Inc. v. Unempl. Ins. App. Bd., 2021 WL 4622405 (Del. Super. Oct. 7, 2021)
The Jury is Ultimate Finder of Fact – Even Between Plaintiff’s Own Various Versions of the Events
Plaintiff suddenly stopped her vehicle on the highway resulting in a three-car chain style accident. Subsequently, Plaintiff told various versions as to why she stopped, including a blinking yellow light that she mistook for a traffic signal, construction changes to the roadway, and ultimately the sudden stop of a ‘phantom driver’ that drove from the scene.
Plaintiff filed suit against the other (known) drivers involved in the accident as well as Defendant Insurer for Uninsured Motorist benefits due to the allegedly negligent phantom vehicle. Defendant Insurer moved for summary judgment arguing the Plaintiff’s multiple versions of the event that caused her to stop her vehicle discounted completely her position that it was a phantom vehicle.
The Delaware Superior Court recognized Defendant Insurer’s ‘strong arguments’ that the phantom vehicle never existed or did not cause the accident. Nevertheless, the Court held that it does not sit as a finder of fact and cannot say there was, or was not, a phantom driver that caused the accident. Indeed, such was a question for the jury. Therefore, Defendant Insurer’s Motion to for Summary Judgment was denied.
For more information on this matter or other legal questions, feel free to contact any attorney in our Liability Department.
Vleugels v. Samuels, 2021 WL 5102552 (Del. Super. Ct. Nov. 3, 2021).