LITIGATION CASE LAW UPDATE
Does The High Cost Of Cable
Have You Burning Mad?
On September 10, 2010, Plaintiff and his wife were sitting at home, when suddenly their Verizon FiOS router caught fire, causing significant damage to their home. The Assistant State Fire Marshal issued a report attributing the fire to a malfunction with the router. Plaintiff filed suit against Verizon claiming negligence and sought to recover for the damage to his property. Verizon moved for summary judgment, arguing that there was no expert opinion in support of Plaintiff’s allegations.
The Superior Court agreed and granted Verizon’s Motion, noting that, at best, the Fire Marshall’s Report established that the router caused the fire, but not that Verizon was negligent. The Court also noted that even the legal theory of “res ipsa loquitor” could not save Plaintiff’s claim. This doctrine is typically invoked when it is next to impossible to prove negligence; however, under the circumstances, the harm could not have happened if not for someone else’s negligence. For example, if an unusual and large object falls off a building over which a particular individual had exclusive control, and causes injury to another, it could be said that it would not have fallen but for the negligence of the individual with exclusive control over the building. In rejecting this theory, the Court noted that “evidence as to where a fire originated within a piece of machinery does not necessarily warrant an inference of negligence.” In other words, in order to survive the Motion for Summary Judgment, Plaintiff needed an expert opinion stating that Verizon’s lightning fast Fios speed resulted in more than just quicker downloads and higher definition movies.
If you have any questions regarding this Decision, please contact any of our attorneys in our Liability Department.
Seck v. Verizon, C.A. No. K16C-12-005 NEP (Del. Super. Ct. July 10, 2017)
WORKERS’ COMPENSATION REPORT
Cry Me A River: Board Finds Tearfulness at Medical Appointment Does Not Constitute “Worsening or Change In Condition” Needed to Support Claimant’s Recurrence of Total Disability Claim
Claimant was employed as a housekeeper for the employer and injured her shoulder in 2009 while making a bed. Claimant underwent two surgeries which were accepted by the employer, including a rotator cuff repair and a partial shoulder replacement. Claimant was released to return to work with restrictions in 2014 following the second surgery, returned to an office job for a brief period, and then stopped working because she did not feel she was physically capable of doing the job. Despite Claimant’s opinions, her own physicians did not reimpose total disability restrictions when she stopped working. Over the ensuing two years, claimant continued to treat. She did not return to work despite no total disability restrictions being imposed. A total shoulder replacement surgery was discussed on several dates of service during this period, due to alleged “thinning” of certain tendons in claimant’s shoulder. At the end of 2016, Claimant presented to her treating orthopedist in tears, alleging a significant worsening in pain. Her treating orthopedist imposed total disability restrictions. A Petition was filed for recurrence of total disability.
On May 10, 2017, the Board issued a Decision rejecting Claimant’s Petition. The Board stated that Claimant had not met her burden of proving a worsening or change in condition. The Board noted that “the only change that occurred was that Claimant appeared to be in more pain (and cried)” during her recent medical appointment. The medical testimony on the other hand, supported that no actual objective change in condition had occurred. Claimant’s own doctor had conceded on cross examination that her own physical examination findings had not worsened and in some areas actually improved concomitant with the alleged recurrence of total disability. Claimant’s doctor also felt that it was “conceivable” that Claimant could work in a job that did not require her to use the right arm and that was within a 30 minute drive from her home. The Board also relied on Claimant’s own testimony that she regularly did light laundry, dishes, shopping, and driving. She had earned her bachelor’s degree after the work accident, so she was certainly qualified to do a sedentary job. The Board also questioned Claimant’s credibility as she had not told her treating physician about an intervening motor vehicle accident that occurred very close in time to the alleged recurrence of disability and for which claimant treated with a different physician.
If you have any questions concerning this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.
Kimberly Scarbro v. Dover Downs, IAB Hrg. No. 1340465 (May 10, 2017)
EMPLOYMENT CASE LAW UPDATE
Delaware State University Motion to Dismiss Granted
Despite Allegations Of Discrimination In The Work Place
The most recent statistics released by the U.S. Equal Employment Opportunity Commission show that in 2016, there were 91,503 formal discrimination complaints filed with the agency. Of those filed, 35.3% or 32,309 of those complaints were alleged to be based on racial discrimination in the work place. In order to protect employees from discriminatory actions by employers, a myriad of laws have been enacted to provide relief for employees who face discrimination. Examples of these laws include 42 U.S.C. §1981 (prohibiting racial discrimination in employment contracts), 42 U.S.C. §1983 (remedial provisions for discriminatory actions by state actors/action), and Title VI, which prohibits discrimination on the basis of race, color, or national origin by any actor receiving federal funds for the purpose of promoting employment.
In DeMoss v. Delaware State University, Plaintiff Jeffrey DeMoss brought suit under 42 U.S.C. §1983, 42 U.S.C. §1981 and Title VI, alleging that his termination arose following racially discriminatory actions by both the University and Individual Defendants who worked for the University. Plaintiff, a white male, alleged that he was terminated following notice that his position would no longer be available following “substantial reorganization effort[s]” by the University. However, Plaintiff contended in his complaint that similar positions were in fact available following the reorganization efforts, but were staffed with three younger African American females and at a higher pay rate.
In granting the University of Delaware’s Motion to Dismiss, the United States District Court for the District of Delaware found that Plaintiff had failed to state a claim upon which relief could be grated. Specifically, while Plaintiff’s complaint did contain several paragraphs noting his position, awards received for his work performance, the alleged reasoning for his termination, and the University’s contract renewal process, he failed to provide any facts that would prove “his race was a motivating fact in Individual Defendant’s decision to terminate his employment.” Further, the Court granted the Motion to Dismiss for the Title VI action because while the University does receive federal funds, such funds are not provided for the primary purpose of promoting employment. Accordingly, the Court did grant the Motion to Dismiss for all three counts of Plaintiff’s Complaint with leave to amend, which would allow Plaintiff the chance to provide facts to support the claims as alleged.
For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.
DeMoss v. Del. State Univ., 2017 U.S. Dist. LEXIS 144756 (Sept. 7, 2017).
THIS DAY IN LEGAL HISTORY
October 19, 1765
First Congress of the American Colonies Adopts the Declaration of Rights and Grievances
The Stamp Act Congress or First Congress of the American Colonies was a meeting held between October 7 and 25, 1765 in New York’s City Hall, now known as Federal Hall, consisting of representatives from some of the British Colonies in North America and was the first gathering of elected representatives from several of the American Colonies to devise a unified protest against new British taxation. Parliament had passed the Stamp Act which required the use of specially stamped paper for legal documents, playing cards, calendars, newspapers and dice for virtually all business in the colonies, and was going into effect on November 1, 1765. On October 19, the delegates adopted the Declaration of Rights and Grievances, in which they proclaimed that Parliament did not have the right to impose the Stamp Act tax because it did not include any representation from the Colonies. The Declaration of Rights contains fourteen statements with the first six laying groundwork, proclaiming loyalty to the crown, and asserting that, according to the Rights of Englishman and the more general “freedom of a people”, only representatives chosen by the Colonists could levy taxes, and because Parliament did not have such representatives, it could not levy taxes. The seventh statement asserts that the Rights of Englishmen afford all colonists the right to trial by jury. The remaining statements protest the unconstitutionality of the Stamp Act, express the economic consequences of the Act, and reiterated the rights of the colonists to petition the crown and Parliament. This Congress is generally viewed as one of the first organized and coordinated political actions of the American Revolution, even though its participants were not at all interested in independence from Great Britain, and it was not until tensions increased by the harsh Parliamentary response to the 1773 Boston Tea Party, which prompted the calling of the First Continental Congress, and produced a united response to the Intolerable Acts of 1774.
DELAWARE DEPARTMENT OF INSURANCE
COMMISSIONER NAVARRO ANNOUNCES WORKERS COMPENSATION RATE DECREASE
Dover, DE – Delaware Insurance Commissioner Trinidad Navarro is pleased to announce there will be a decrease in Workers Compensation Insurance Rates, effective December 1st, 2017.
“I am thrilled to see an agreement come so quickly from the Delaware Compensation Rating Bureau (DCRB), the Ratepayer Advocate, and my staff. I was anxious to see the filing with the rate decrease, which is good news for all Delawareans” said Commissioner Navarro.
The DCRB Workers Compensation rate decrease was approved Tuesday, October 17th after its review by the Commissioner’s independent actuaries and the state’s Ratepayer Advocate examination of the DCRB’s original filing. The decrease is -5.73% for the residual market and a -3% for the voluntary market. The decrease was slightly greater than the original DCRB filing made back in August.
Commissioner Navarro added “The entire process went smoothly and efficiently as all actuaries and examiners agreed that a decrease was the absolute best outcome for Delaware businesses. This insurance rate decrease has a direct impact on Delaware’s employers, enabling them to lower their costs and hopefully employ more Delawareans. Employers can realize additional savings of up to 19% on their premiums by enrolling in our workplace safety program. They can find our workplace safety webpage by going to www.insurance.delaware.gov/workplacesafety, or call the office directly at 302-674-7377.”
The DCRB amended filing No. 1701 can be found on the Department of Insurance website. www.insurance.delaware.gov/dcrb.
THE MITCHELLS WELCOME BABY VIVIANN
Michael Mitchell and his wife Jessica are happy to announce the birth of their beautiful baby girl Viviann Jayne Mitchell on October 5, 2017 at 11:41 a.m. She weighed 7 pounds and 14 ounces and has already stolen the hearts of her mommy and daddy!
DELAWARE CLAIMS ASSOCIATION
Heckler & Frabizzio attorneys Anthony Frabizzio and Amy Taylor attended the annual Delaware Claims Associate vendor exhibit on October 3, 2017. They had a corn hole game set up for the seminar attendees which, was well received and fun for all. Heckler & Frabizzio participates in this event annually, we hope to see you next year!
COLUMBUS DAY COMMUNION BREAKFAST
Anthony Frabizzio was Chairperson of the Columbus Day Communion Breakfast Committee that celebrated Columbus Day on 10/10/17. The event was a big success and included attendance by Delaware Governor Carney and U.S. Senators Coons, and Carper along with other state and local officials. The event raised approximately $16,000 which is donated to the Oblate of St. Francis deSales retirement fund and to St. Anthony’s grade school for technology to include individual I-Pads for student use.
GREETING FROM THE H&F TEAM!