November 2024

ANNOUNCEMENTS

Celebrating 10 Years of Workplace Health & Safety

Heckler & Frabizzio is celebrating 10 years of prioritizing health and safety in the workplace! Our commitment hasn’t gone unnoticed—the Delaware Insurance Department commended our efforts, recognizing the benefits it bring to our whole team.

2025 Adjuster Education Credits

Heckler & Frabizzio Partners, Maria Paris Newill, and Patrick Rock are hosting a free Ethics virtual seminar on January 24th, from 9 am-12pm. This course is approved for three-hour Delaware general credits. Heckler & Frabizzio Partners, Gregory Skolnik, and Nicholas Bittner are hosting a free virtual Delaware Workers Compensation seminar on February 19th, from 1pm-4pm. 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!

WORKERS’ COMPENSATION LAW

Reminder of Legal Impact of Payment Without Prejudice

Claimant filed an initial Petition to Determine Additional Compensation Due seeking to add a body part to what she considered an already existing Agreement as to compensability. Employer argued there was no written Agreement between the parties or Board Order establishing initial compensability. Employer only made IN DISPUTE payments in accordance with 19 Del. C. 2322, without admitting liability or compensability in any way. Employer therefore requested dismissal of the Petition, to be converted into an initial Petition to Determine Compensation Due.

The Board agreed, as if Employer’s Motion were denied, it would rob Employer of the ability to challenge the compensability of the underlying claim, something Employer never agreed to. To the contrary, Employer made a showing at the Motion Hearing supporting that payments were made without prejudice, meaning the claim may not have been acknowledged in any way. The Board was clear that claimant is free to allege and attempt to prove an “implied agreement” at Hearing on the initial Petition, but the claimant cannot rob the Employer of an adjudication on that issue by filing a Petition to Determine Additional Compensation Due in the absence of Agreement or Order.

This case is a good reminder of the legal impact of IN DISPUTE payments in Delaware. When properly made, such payments do not equate with acknowledgement of the claim or specific benefit in issue; nor operate to extend the statute of limitations. Liberal use of IN DISPUTE payment can be an extremely effective tool for claims handling, in the right situations.

In order to make an IN DISPUTE payment under Delaware Law, 19 Del. C. 2322(h) requires that notice be provided to claimant if the payment is for an alleged indemnity benefit, and to both claimant and medical care provider if payment is for alleged medical care. This claim is IN DISPUTE and payment is being made without prejudice to the Employer’s right to dispute the compensability of the workers’ compensation claim generally or the Employer’s obligation to pay this bill in particular.

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

Njikeonya Ibeh v. Walmart, IAB Hrg. No. 1536734 (Oct. 11, 2024).

EMPLOYMENT LAW UPDATE

Delaware Superior Court Uphold’s Employee’s Voluntary Resignation Arising From a Settlement Agreement Where “Each Side Gave Something and Got Something”

In the years prior to Claimant’s Unemployment Insurance claim, Claimant had filed a lawsuit against her employer Deluxe “alleging a virtual smorgasbord of discrimination claims.” The discrimination lawsuit was resolved with a release of claims against Deluxe, where Claimant agreed to voluntarily separate from Deluxe for a $57,000.00 payment, among other things.

Upon signing the settlement agreement, Claimant filed a Delaware Unemployment Insurance claim arising from what she considered to be a constructive discharge.

Claimant’s case was heard at a lower authority appeal hearing, where the Claimant argued “that she was ‘coerced’ into signing the settlement agreement and it was therefore a nullity.” Claimant attempted to make an argument concerning evidence of duress, but the appeals referee pointed to a provision in the settlement agreement that spoke to Claimant’s voluntary resignation from Deluxe. Claimant remained disqualified from receipt of unemployment benefits.

The Unemployment Insurance Appeal Board reached the same conclusion as the appeals referee.

Claimant then appealed to the Delaware Superior Court, alleging that she had presented materials to the Board that were not in the record. The Superior Court suggested that Claimant’s proposition had some support the record, but that Claimant ultimately did not offer any evidence to the appeals referee about her duress claim. Further, Claimant “made no effort to ensure that whatever evidence she offered was preserved for the record.”

The Superior Court noticed a hearing concerning Claimant’s appeal, but Claimant was unable to attend the hearing due to the alleged start of a new job. The Superior Court allowed the Claimant “to place whatever she wanted considered on the docket.” The Superior Court reviewed the documents and held that none of Claimant’s filings showed coercion or duress as it related to the settlement agreement at issue.

Ultimately, The Superior Court affirmed the Unemployment Insurance Appeal Board’s Decision because “Claimant accepted the benefits of the settlement agreement, to wit, a $58,000 [sic] check, a letter of reference, and other benefits. She has not returned them.” Moreover, the Court reasoned that Claimant could not accept the benefits of the settlement agreement and ignore the settlement agreement’s voluntary resignation provision.

If you have any questions concerning this case or the Delaware Unemployment Insurance claim procedure, please contact an attorney in our liability department.

Constance Gary v. Wausau Financial Systems Inc./ Deluxe Corp. & Unemployment Insurance Appeals Board; C.A. No. N24C-04-006 CEB (Del. Super. November 7, 2024).

LITIGATION LAW UPDATE

A Discussion on Fraud Part II: False Representations by a Defendant are Required

Plaintiff and Defendant were involved in a motor vehicle accident, and Defendant’s insurance carrier, Progressive, tendered his $25,000 policy limits to resolve the case. On September 11, 2023, counsel for both parties engaged in a series of emails whereby there was discussion as to the possibility of excess coverage provided by State Farm. On September 18, 2023, a staff member in Plaintiff’s attorney’s office responded to Progressive indicating they had not yet heard back from State Farm regarding its policy, and further stating, “in a previous discussion, you stated that [Defendant] had signed an Affidavit of No Other Insurance first and then realized it was incorrect.” The correspondence went on to read that if no additional coverage is available, Plaintiff would still require a copy of the Affidavit.

At no time was the Affidavit ever provided to Plaintiff’s side. In addition, despite multiple emails and calls between the various parties, no final determination on the applicability of the State Farm policy was made. However, Plaintiff proceeded to execute a Release, agreeing “this is a full and final release of any and all claims arising out of said accident.”

Following execution of the Release, Plaintiff’s counsel again sent a letter to State Farm requesting confirmation of coverage. Plaintiff ultimately filed a Complaint against Defendant for additional damages, and Defendant filed this Motion to Dismiss. Plaintiff alleged, in part, that Defendant’s conduct constituted “misrepresentation and concealment of coverage.”

The Court concluded Plaintiff failed to allege facts supporting an inference that Defendant had made a false representation. Although Defendant signed the Affidavit, he immediately disavowed it, and it was never provided to Plaintiff or her counsel. Correspondence between the parties further confirmed that Plaintiff’s side was fully aware of the possibility of additional coverage and they were actively investigating same at the time Plaintiff chose to execute the Release. Plaintiff’s failure to fully investigate the insurance situation does not transform the uncertainty of coverage into a fraudulent representation by Defendant.

Defendant’s Motion to Dismiss was granted, accordingly.

Sherry Ann Gellespie v. Thomas Hamilton Carper, C.A. No. K23C-09-034 RLG (Del. Super. Ct., Nov. 7, 2024)