October 2022

Passing the Delaware Bar!

Congratulations to our law clerks, Carmella Cinaglia and Caixia Su for successfully passing the Delaware Bar Exam! We are so proud of you both. Caixia and Carmella will be offically sworn in December 2022.

Fundamentals of law Practice Management and Technology

Partner Gregory Skolnik, spoke at the DSBA’s seminar on the Fundamentals of Law Practice Management on September 23rd. Mr. Skolnik presented on attorney ethics.

New Jersey Special Investigators Association

Partner Gregory Skolnik, will be speaking at the NJSIA annual meeting on November 3rd. Mr. Skolnik will represent Delaware during a panel discussion with several other lawyers from New York, Pennsylvania, and New Jersey on differences in workers’ compensation statutes in neighboring states.

Back to School Drive

Heckler & Frabizzio gives back to several organizations as part of our fall / winter charity drives. In September our drive benefited the Delaware Choir School who received new school supplies for their students. The first external person to email nbogia@hfddel.com wins a five dollar Wawa gift card! It pays to pay attention. Please check out this wonderful organization!

Keeping Up with H&F

Wedding Bells

Congratulations to Jonathan Miller, paralegal, who got married on October 8th, 2022. Jon and his wife Amy are excited to start their life together. We wish you many years of happiness!


Beware of Water Hazard:

Co-workers, Jack and Jill, went across the little lane and up the hill to a local watering hole for a drink of water during their lunch break from Burger King. While having a spontaneous water fight with their pails of water, Jack fell down and Jill came tumbling after. As they were not “in the course and scope of their employment”, were engaged in unauthorized horseplay and were not even on the employer’s premises, they did not have any workers’ comp entitlement. Still, since Jack broke his crown (which was not a cheap knock-off), Jack and Jill are considering a liability claim against the well owner who did not warn them that the hill was slippery when wet. Who will cry over the spilt water – Well Owner v. Jack & Jill?


To the Victor Returns the Spoils:

Medical Providers Ordered to Reimburse Mistaken Payments

Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.

Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.

In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.

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

Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).


Dog and Man Both Bite Off More than They Can Chew: Injured Man has No Direct Claim Against Insurer

A homeowners insurance carrier’s motion to dismiss a Complaint for Declaratory Judgment was granted, affirming that an injured party may not bring a direct action against an insurer based on the negligence of the insured. In this case, plaintiff was an invitee at the home of the insured when he was bitten by the insured’s Pit Bull.

Delaware Superior Court followed the authority set forth in Kaufmann v. McKeown, 193 A.2d 81 (1963) which held that “a liability insurer may well be the real party in interest but this is not a State where a direct action is permitted against it.” An exception to this general rule exists when the insurance policy or contract was made for the benefit of the injured party. However, for plaintiff to be a third-party beneficiary, the parties to the contract (the homeowner and the insurer) must have intended to confer this benefit. Although this analysis involves a question of interpretation, the Court looked at the language of the insurance contract and found that it expressly prohibited a direct action by an injured party.

As such, the injured party was merely an incidental beneficiary and had no right to sue under the policy until judgment had been obtained against the insured or an agreement was made to settle the claim.

George Smith, III v. CSAA General Insurance Company, C.A. No. N22C-05-089 CLS (October 6, 2022)


Plaintiff’s ADA Claims ‘Undeliverable’ Against Individual Defendants

A pro se Plaintiff filed a lawsuit against Amazon.com Services, LLC (“Employer”) and other individually named Defendants on October 25, 2021, alleging disability discrimination. Plaintiff also alleged a retaliation claim associated with her filing of a workers’ compensation claim in March 2018. Plaintiff did not identify any federal statute underpinning her claims. She subsequently filed a EEOC right to sue letter on February 17, 2022, after which she requested an extension to amend her complaint.

Plaintiff’s EEOC charge included allegations against Employer for retaliation under the Americans with Disabilities Act and the state law counterpart Delaware Persons with Disabilities Employment Protections Act.

Employer moved to dismiss Plaintiff’s claims as it argued Plaintiff was not engaged in any activity protected under the ADA or Title VII. Plaintiff’s response to Employer’s Motion raised new facts not brought in her original Complaint.

While the Court construes pro se pleadings liberally, the Court does not allow the amendment of pleadings through a motion response like Plaintiff attempted in this case.

The Court noted that Plaintiff would not be able to raise any ADA claims against the individually named Defendants, as that is against the prevailing caselaw in the Third Circuit.

Moreover, the Court held that Plaintiff’s filing of a workers’ compensation claim was not a protected activity under Title VII or the ADA, and therefore Plaintiff did not make a prima facie retaliation claim. To make matters worse for Plaintiff, the Court noted that Plaintiff’s workers’ compensation retaliation claim, if any, was barred under the two-year statute of limitations provided in 19 Del. C. § 2365.

Nevertheless, the Court found that Plaintiff’s ADA claims as to disability accommodations could be properly pled with the amendment of her complaint, and as such the Court granted Plaintiff’s motion to amend her complaint as to her ADA claims for discrimination and failure to accommodate.

Should you have any questions regarding this decision, or any employment law questions please contact any attorney in our Liability Department.

Walley v. Amazon.com, Inc., et al., C.A. No. 21-1498-GBW, D.Del., September 16, 2022.