June 2024

ANNOUCEMENTS

Diversity Scholarship

Heckler & Frabizzio is offering a $5,000 scholarship to a minority student who is currently looking to further their education in the legal field with a connection to Delaware. The rising cost of education continues to be a hardship many minorities struggle to overcome. Heckler & Frabizzio believes that by helping diverse legal professionals overcome those struggles, our world can become a brighter place for future generations in our community. We are seeking a candidate who demonstrates a commitment to diversity, the Delaware community, and a passion for the legal field. For more information, please contact Page Chase.

Keeping Up with H&F

Congratulations Grads

Maria Paris Newill, Partner Attorney, sons Charles and Nicholas, graduated from High Point University on May 4th. Charles and Nicholas have a bright future ahead of them. Now the fun begins. Congratulations, Charlie & Nick!

Food Truck Fun

For the school year 2023-2024, Monique Hedrick’s daughter, Rachael, was invited to join QUEST, a specialized program for gifted students. QUEST aims to foster independent thinking across various subjects through project-based learning. During the school year, Rachael and her classmates were organized into teams to create a food truck business. They engaged with local food truck owners, visited their trucks, and crafted business plans and menus. This effort led to a culminating event, a food truck festival on Friday, May 31st, where each group showcased their menu items and presented their business plans to friends and family. It was a fun and successful event! Congratulations on your outstanding work, Rachael!

WORKERS’ COMPENSATION LAW

Superior Court and IAB Agree, You Cannot be Surprised by Your Own Medical Records

Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of a 9/23/20 work accident with alleged injuries to her cervical spine and left shoulder. After claimant’s medical expert was deposed, Employer obtained pre-existing medical records from claimant’s family doctor, which the defense medical expert then relied upon in his deposition testimony. Claimant filed a motion seeking to strike portions of employer’s expert’s testimony as to these records, or in the alternative, continue the Hearing to allow claimant’s medical expert to be re-deposed. The Board denied claimant’s Motion finding no fault on behalf of employer and that claimant could not be surprised by the contents of her own records; and went on to deny claimant’s Petition on the merits.

Claimant appealed to the Superior Court. The Superior Court affirmed the Board’s Decision finding the Employer not at fault as the employer obtained and timely produced the new medical records. The Superior Court emphasized, “it is up to the claimant, not the employer, to make sure she has the documents necessary for her expert and her case.” The Superior Court questioned the significance of the impact of the newly received family practice notes on the ultimate outcome, painstakingly discussing multiple issues with the claim that had nothing to do with the new records, including delayed reporting, during which time claimant continued to work, multiple inconsistencies with claimant’s reported mechanism of injury, lack of documentation as to any work-related cause of injury in claimant’s early treatment records for the claim in question that was changed later by the providers to reflect a work-related history, but the rationale for the changes was never explained for the Board, along with multiple other problems with the claim.

Should you have any questions regarding this Decision, please contact Maria Paris Newill or any other attorney in our Workers’ Compensation Department.

Trincia v. Dick’s Sporting Goods, Super. Ct. No. N23A-03-006-MMJ, 2024 WL 1110401 (March 14, 2024).

EMPLOYMENT LAW UPDATE

Superior Court Says No Redress For Claimant Neal’s Late Appeal

Claimant Quenna Neal filed for unemployment benefits on March 22, 2020, and was disqualified by a claims deputy because Neal was receiving a monthly pension at the time of her claim. The pension amount was in excess of what her weekly unemployment compensation would have been.

On July 1, 2020, Claimant Neal appealed the deputy’s Notice of Determination, which in turn triggered a lower authority hearing on her claim.

On July 23, 2020, Claimant Neal’s lower authority hearing was held, and in a July 24, 2020 decision, the appeals referee found Claimant to be disqualified for the same reason as the claims deputy. The appeals referee provided Claimant Neal with a deadline of August 3, 2020 to file an appeal to the higher authority level (i.e. the Board level).

Time passed.

On March 15, 2023, Claimant Neal filed an appeal of the referee’s July 24, 2020 decision.

On April 19, 2023, the Board reviewed the appeal request and the referee’s decision was affirmed because it became final on August 3, 2020. Furthermore, the Board could not find evidence revealing any Delaware Department of Labor error that would have impeded Claimant Neal in filing a timely appeal.

Claimant Neal filed a subsequent appeal into the Delaware Superior Court, and the Superior Court affirmed the Board’s discretion to hear an appeal. The Court also noted that the Board typically exercises that discretion concerning untimely appeal cases only when there is an administrative error impacting the claimant’s ability to appeal.

The Court found that Claimant Neal’s untimely appeal was of no fault of the administration of the Delaware Department of Labor and that the Board’s decision to not hear Claimant Neal’s appeal was not an abuse of discretion.

Quenna Neal v. Unemployment Insurance Appeal Board; C.A. No.: N23A-07-005 JRJ (Del. Super. Ct. June 11, 2024)

LITIGATION LAW UPDATE

It’s A Jeep Thing—Snow Sledding Gone Wrong, Before It Begins

The Delaware Superior Court analyzed whether medical expenses incurred by Mr. Irons are covered by an automobile insurance policy. Mr. Irons brought an action against the Defendant and both parties agreed for the Court to decide based on a stipulated set of facts.

On March 21, 2018, Mr. Irons, a Delaware resident, had ridden in the back of a black 2011 Jeep Wrangler, which was registered and insured in New Jersey. The black Jeep then parked on a private lane and Mr. Irons exited the vehicle to pull plastic snow sleds out of the back when another vehicle, a yellow Jeep Wrangler with a snowplow blade attached to the front, struck and pinned Mr. Irons between the two Jeeps, fracturing his femur and necessitating surgery. Following the incident, Mr. Irons submitted a Personal Injury Protection (PIP) claim for no-fault benefits under the Defendant’s policy covering the black Jeep.

Defendant denied Mr. Irons’ PIP claim, stating that the loss was not covered because Mr. Irons was a Delaware resident, and he was not a resident relative of the insured’s family and thus not afforded broader protection than other persons. Under the policy, a person may be denied PIP benefits if they were not “occupying” or “using” the covered vehicle at the time of the injury. New Jersey statute requires the application of the “substantial nexus test,” meaning that Mr. Irons must establish a “substantial nexus” between the covered vehicle and the accident, which is determined on a case-by-case basis, and a “mere coincidental connection is not enough.”

This Court found that the Policy defines occupying as “in, upon, or getting in, on, out or off.” Here, Mr. Irons had exited, crossed to the rear door, and began to open the tailgate, which the Court found constitutes “occupying” under the Policy. “Use” under the Policy is any “normal use” of the Vehicle. Furthermore, the Court held that Defendant’s Exclusions do not justify the denial of PIP coverage because, while Mr. Irons is a Delaware resident, he was both occupying and using the Vehicle when injured. Mr. Irons’ medical expenses are, therefore, covered by the Policy.

Irons v. CSAA Gen. Ins. Co., 2024 WL 1599463 (Del. Super. Ct. Apr. 12, 2024)