August 2024
ANNOUCEMENTS
Adjuster Education Credits
Heckler & Frabizzio Partners, Amy Taylor, and Miranda Clifton are hosting an Investigations virtual seminar on November 5th, from 10am-12pm. This course is approved for two-hour Delaware general credits. Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a virtual Terminating WC seminar on November 14th, from 2pm-3pm. This course is approved for a one-hour Delaware general credit. Heckler & Frabizzio is looking forward to continuing to offer free continuing education. If you’d like to join us, please email Natalie Bogia, with your National Producer Number (NPN) and Delaware License Number. We hope to see you there!
Keeping Up with H&F
Making Waves in the Pool
Jennifer Delaney, Paralegal is proud of her son Jason, who participated in the Suburban Swim League Summer Championship and placed top 4 in the legal in the 50-meter freestyle and top 6 in the 25-meter butterfly and 25-meter backstroke. Way to go, Jason!
Daughters Moving On Up
Shiree Andersons, Paralegal, is proud to announce that her oldest daughter, Zamyra, has successfully passed the North Carolina real estate exam and is now a licensed real estate agent—congratulations, Zamyra! Meanwhile, Shiree’s middle daughter, Asiya, has launched her own business, creating skincare products, crocheted baby blankets, and hats. Asiya’s website will be live soon, so stay tuned. Shiree is incredibly proud of her daughters, and we wish them both the best of luck in their new ventures!
New Granddaughter Arrives
Charlean Baird, legal secretary, is thrilled to announce the arrival of her new granddaughter, Sophia Leigh, born on August 4th, 2024. Sophia is absolutely beautiful, and we extend our heartfelt congratulations to Charlean and her family!
WORKERS’ COMPENSATION LAW
Reminder to Check Your ISOs – Employer Wins on Nally Defense
Claimant filed an initial Petition seeking acknowledgement of a 10/6/23 mid-back injury when he was working as a firefighter, carrying a heavy pack of gear up stairs during a drill, felt out of breath, and later experienced spasms in his back; along with a period of total disability; and medical bills for thoracic spine directed treatment.
Employer discovered that claimant had a 11/25/15 work injury involving the mid-back with a different employer, who acknowledged 5% permanency to the thoracic spine. The 2015 claim was later closed by global commutation.
Given the earlier claim, Employer argued that traditional “but for” causation was not applicable for the 2023 allegation. Rather, Nally v. Standard Distributing applies, which to shift liability, requires claimant to prove both (1) an untoward event and (2) new injury. Employer contended that claimant could not establish either prerequisite.
The Board agreed and denied claimant’s Petition, noting that Nally was deliberately designed by the Delaware Supreme Court to make sure that liability does not shift to a later employer or carrier unless there has been a true, substantial, subsequent accident that can fairly be said to have broken the chain of causation. Chronic conditions are liable to wax and wane. If a later employer is to assume liability for the entire condition whenever some work activity causes a flare up, it would disincentivize hiring workers with prior injuries. It would complicate getting medical care if the insurer on the risk could change with each new flare up.
As to the facts of the case in issue, claimant had no true accident. He was carrying packs, an ordinary job duty, when he felt out of breath. While MRIs in 2015 as compared to 2023 showed some progression in disc pathology, there was no acute finding in 2023, and any worsened disc issues would be expected given the natural aging process.
Should you have any questions regarding this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department.
Ferrell v. City of Wilmington, IAB No. 1540174 (July 25, 2024).
EMPLOYMENT LAW UPDATE
Delaware Supreme Court Affirms November 30, 2023 Judgment in Weller
In December 2023’s Side Bar we reported on the Superior Court Matter of William W. Weller v. Morris James, LLP, et al. In that case, the Delaware Superior Court held that the Unemployment Insurance Appeal Board’s decision to disqualify Weller from receipt of unemployment benefits was supported by substantial evidence and free of legal error.
Weller had received a severance payment from his employer which was deemed wages under the statute such that Weller was not left economically insecure and as such not qualified for unemployment insurance benefits.
After the issuance of the November 30, 2023 memorandum opinion by the Superior Court, Mr. Weller filed an appeal to the Delaware Supreme Court.
The Supreme Court affirmed the Superior Court’s November 30, 2023 judgment because “Weller’s arguments on appeal do not establish reversible error.”
Mr. Weller also sought relief from the Supreme Court on an unrelated issue concerning attorney misconduct, which the Supreme Court deemed “beyond the scope of [. . .][Weller’s] appeal.”
If you have any questions concerning employment law, especially regarding employee separations, please contact an attorney in our liability department.
William W. Weller v. Morris James, LLP and Unemployment Appeal Board, No. 488, 2023 (Del. Aug. 12, 2024).
LITIGATION LAW UPDATE
Who May Sue Who – Maybe You Too? A Dr. Seuss Book or A Treatise on Intended Beneficiaries
The Delaware Superior Court granted U-Haul’s Motion for partial summary judgment, finding that the injured party Zimmerman (and her insurance carrier Allstate) lacks standing to assert a claim for insurance coverage against the tortfeasor Heath’s insurance. In this case, Heath rented a U-Haul and opted into U-Haul insurance coverage prior to rearending Zimmerman. U-Haul suspected that the accident was staged, prompting U-Haul to file a declaratory action against Heath, Zimmerman, and two other parties seeking a judgment that no coverage was owed on behalf of Heath. Heath defaulted and judgement was entered against him.
The Court then turned to the question of whether Zimmerman had standing to bring a claim against U-Haul as a third-party beneficiary under Heath’s insurance contact. The Court reasoned that the issue of standing turns on whether Zimmerman “was an intended beneficiary under the contract of insurance between Heath and U-Haul.” Citing public policy concerns, the Court acknowledged that the general rule in Delaware is that “an injured third-party may not bring a direct cause of action against a tortfeasor’s insurer.” However, Delaware recognizes three exceptions to the general rule, including “(1) where the third-party as received a valid assignment of the claim for coverage from the insured, (2) where the third-party is an intended third-party beneficiary of the insurance contract, or (3) through subrogation.”
In analyzing whether Zimmerman was an intended beneficiary of the contract between U-Haul and Heath, the Court reasoned that to confer the rights of contract upon a third-party, “the contracting parties must have intended to enter the contract for the benefit of that third-party (or a similarly situated class of third parties).” In determining whether a third-party is such an intended beneficiary, the Court will look to the explicit policy language. The policy in issue here states, “Any person, organization, or their legal representative is entitled to recover under this Policy after they have secured a judgment or written agreement against the insured. . . . No person or organization has any right under this policy to include the Company in any direct action brought against the insured to determine the insured’s liability.” Based on this policy language, the Court concluded that Zimmerman was not an intended beneficiary under the policy. In turn, Zimmerman cannot sue U-Haul directly until such time that a final judgment or agreement is entered against Heath, as the direct insured under the policy.
U-Haul Co. of Maryland, inc., et al v. Angelo Heath, Nicole Zimmerman, et al, C.A. No. N23C-08-276 FJJ (Del. Super. Ct., Aug. 19, 2024)