Firm Newsletter, Winter 2013

February 1, 2013

Articles In This Issue: 1. The Fundamentals of Intellectual Property 2. Circuit Split Narrowed in Favor of Employees With Disabilities Regarding Whether ADA Reassignment Requires Preferential Treatment 3. The Superior Court’s Decision in Patton v. Worthington Sounds Death Knell for Statutory Employer Defense and Elevates Construction Costs Throughout the Commonwealth 4. Pennsylvania Product Liability Law Remains Unsettled   Related Information: Firm Newsletter, Winter 2013 Read More

Gaetan J. Alfano Appointed as Chair of Philadelphia Bar Association’s Commission on Judicial Selection and Retention.

February 1, 2012

Gaetan J. Alfano, a partner in the law firm of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, has been appointed as Chair of the Philadelphia Bar Association’s Commission on Judicial Selection and Retention. The Philadelphia Bar Association’s Commission on Judicial Selection and Retention evaluates judicial candidates to help voters make decisions about candidates for judicial office. The Commission’s evaluations are based on criteria such as legal ability, experience, temperament, administrative ability, integrity and devotion to improvement of the quality of justice. Mr. Alfano is Co-chair of the firm’s Commercial Litigation Practice Group. Read More

Jeanette Ho Appointed to Three Year Term as the Western District of Pennsylvania’s Representative to the Third Circuit’s Lawyers Advisory Committee.

January 1, 2012

Jeanette Ho, a partner with Pietragallo Gordon Alfano Bosick & Raspanti, LLP, has been appointed to a three year term as the Western District of Pennsylvania’s representative to the Third Circuit’s Lawyers Advisory Committee.  The Lawyers Advisory Committee is responsible for commenting on proposed rules and the Third Circuit’s internal operating procedures and serves as a liaison between the Court and the legal community. Ms. Ho’s practice concentrates in the areas of general litigation with emphasis on civil rights, particularly Section 1983; municipal liability; negligence; and insurance coverage interpretation and litigation including bad faith actions involving insurance companies. In addition to her involvement with the Advisory Committee, Ms. Ho is a member of the Pennsylvania Bar Association’s Minority Bar Committee. Ms. Ho is a sustaining Fellow of the Allegheny County Bar Foundation and a member of the Federal Courts Section Council of the Allegheny County Bar Association.  Ms. Ho is a past member of the Pennsylvania Board of Law Examiners and a past co-vice chair of the Minority Bar Committee of the Pennsylvania Bar Association. Ms. Ho received her law degree from the University of Pittsburgh School of Law. Read More

Ohio Supreme Court Bars ‘Take Home’ Asbestos Exposure for Premises Owners Where Exposure Does Not Occur On Premises

July 19, 2010

Recently the Ohio Supreme Court ruled that a premises owner is not liable for asbestos tort claims when the exposure takes place off the premises. This ruling effectively bars liability for premises defendants in ‘take home exposure’ cases where the plaintiffs claim the plaintiff was exposed to asbestos by laundering a worker’s clothes. In a 5-1 decision the Court affirmed the judgment of the 8th District Court of Appeals. Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550 (June 10, 2010). The decedent, Mary Adams, laundered the clothes of her husband Clayton Adams during the time that he worked at Goodyear Tire & Rubber Co. in St. Marys, Ohio, from 1973 to 1983. Plaintiffs claim she developed mesothelioma cancer as a result of the dust she breathed from laundering Mr. Adams’ work clothes. Mrs. Adams’ estate representative, Cheryl Boley and Mr. Adams filed suit against several defendants including Goodyear Tire & Rubber Co. In response, Goodyear filed a Motion for Summary Judgment citing the plain meaning of R.C. 2307.941(A)(1), which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” Plaintiffs’ counsel, in reply to Goodyear’s motion, argued that this section should not apply since Mrs. Adams’ exposure took place at home and not on the premises. The trial court granted Goodyear’s Summary Judgment motion indicating that R.C. 2307.941(A)(1) explicitly bars ‘take home’ exposure cases as they pertain to premises owners. The 8th District Court of Appeals affirmed. The Supreme Court examined the legislative intent of R.C. 2307.941(A)(1) and held, “when its meaning is clear and unambiguous, we apply the statute as written.” It further held, “…the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. Read More

Firm Newsletter, Spring 2010

March 26, 2010

Articles In This Issue: 1. Increased Spending on Fraud Enforcement Will Result in the Execution of More Search Warrants – Is Your Company Ready? 2. Employee’s Uphill Battle In Establishing A Class Action Under The ADA 3. A Sea Change In Government Contracts 4. The Use Of Arbitration Techniques To Resolve Modern Commercial Disputes 5. The Third Circuit Narrows The Applicability And Enforceability of EMTALA 6. Ohio Supreme Court Addresses Prevailing-Wage Laws 7. The Pennsylvania Supreme Court Clarifies Some Aspects Of Asbestos Law Related Information: Firm Newsletter, Spring 2010 Read More

Pennsylvania Supreme Court Clarifies Some Aspects of Asbestos Law in Recent Abrams Decision

November 12, 2009

The Pennsylvania Supreme Court recently issued its long-anticipated opinion in Abrams v. Pneumo Abex Corporation, wherein it addressed the question of whether an individual who previously recovers damages for increased risk and fear of developing cancer due to asbestos exposure under the “one disease rule,” may later recover damages – from a party he did not previously sue – for cancer that developed and was diagnosed after the “separate disease rule” was adopted by the Pennsylvania Court of Appeals in 2002. The Court answered this question in the affirmative, providing clarification to asbestos litigants on an issue which is frequently raised in lower courts throughout Pennsylvania. Abrams involved consolidated actions for personal injuries sustained by two individuals who were occupationally exposed to asbestos, and who were both diagnosed with non-malignant asbestos-related disease in the mid-1980s. In that same time period, the Abrams plaintiffs filed complaints against various defendants, seeking damages for increased risk and/or fear of cancer. In 1993, the Abrams plaintiffs settled their 1980s lawsuits. However, in 2002, the Abrams plaintiffs were diagnosed with lung cancer and, in 2003, each filed a separate lawsuit (“the 2003 lawsuits”) against various companies, including John Crane, Inc. (“Crane”), a company which was not named in the 1980s lawsuits. In their 2003 lawsuits, the Abrams plaintiffs alleged that their lung cancer was caused by their occupational exposure to asbestos-containing products manufactured by various defendants, including Crane. Crane filed a motion for summary judgment on the basis that the plaintiffs’ claims were barred by the two-year statute of limitations applicable to asbestos injuries, which began to run upon their initial diagnosis with asbestos-related disease in the mid-1980s. The trial court agreed, and entered summary judgment for Crane. The Pennsylvania Superior Court affirmed the trial court’s ruling, noting that the plaintiffs’ claims in the 1980s lawsuits were premised upon the assertion that they would contract cancer in the future as a result of their occupational exposure to asbestos, and thus pertained to the same malignant asbestos-related disease for which they sought coverage in the 2003 lawsuits. Read More

Pennsylvania Court Reduces Security for Appeal of Excess Judgment in Medical Malpractice Case

October 22, 2009

A Pennsylvania trial court recently reduced the amount of security required of a primary insurer to stay execution upon a substantial judgment in a medical malpractice case. In White v. Behlke, 2009 WL 3344849 (C.P. Lackawanna County October 7, 2009), the jury returned a verdict far in excess of the insureds’ policy limits. The court allowed a supersedeas upon posting security in the amount of the insurer’s policy limits plus its pro-rata share of delay damages. Dr. Behlke and his practice group were found liable for a $16,000,000 malpractice award. However, the total amount of their primary coverage available was $1,000,000. The doctor and the practice group had access to the state-operated excess liability fund, but that coverage did not factor into court’s ruling on the amount of security required for the appeal because the excess fund was not legally required to contribute to the supersedeas. Under Pennsylvania law, a judgment debtor may obtain an automatic supersedeas by posting security in the amount of 120% for the judgment. Pa.R.A.P. 1731(a). The primary insurer, on behalf of the doctor and his practice group, filed an application under Pa.R.A.P. 1731(b) requesting a reduction in the amount of security required for the appeal. In addition, the court considered a provision of a statute, applicable only to medical professional liability cases, wherein the legislature acknowledged the general authority of trial courts to limit or reduce the amount of security for an appeal. 40 P.S. § 1303.515(d). Nonetheless, the plaintiffs objected to the reduction of security, arguing that the insurer acted had in bad faith by failing to settle the case within the limits of liability of the policies issued to the doctor and his practice group. The court held that the insurer was not required to bond the entire excess judgment, despite the allegations of bad faith. Read More

Pennsylvania Federal Court Upholds FIFO Approach to Settlement of Claims; Rejects Bad Faith Assertion

October 21, 2009

A federal court applying Pennsylvania law recently dismissed a case against an insurer seeking damages for breach of contract and bad faith following the insurer’s settlement of some but not all claims against an insured. The insurer in that case followed a first-in-first-out (FIFO) approach to settling claims and, in the process, it exhausted the coverage available under the policy. The court held that the exhaustion of limits permitted the insurer to refuse to defend a late-blooming claim. Further, the court held that the insurer did not commit any common law or statutory bad faith in paying the claims as they were presented. In NIA Learning Center, Inc. v. Empire Fire & Marine Insurance Co., 2009 WL 3245424 (E.D. Pa. October 1, 2009), the insurer had issued a commercial auto policy with a combined single limit of $100,000. The policy contained a provision that allowed the insurer to terminate its duties of defense or settlement after it exhausted limits by payment of judgments or settlements. An insured driver was involved in a collision that resulted in damage to another vehicle and injuries to a pedestrian. The insurer settled the property damage claim for about $13,000 and it paid the balance of the policy limits to the pedestrian. Shortly before the statute of limitations expired, the other driver sued for bodily injuries sustained in the accident. The insured driver tendered the defense of that action to the insurer. The insurer declined, noting the exhaustion of limits in the prior settlements. After the named insured was added to the suit as a defendant, it engaged counsel to defend the suit against it and the driver. That suit ended in an arbitration award of $20,000. In the coverage case, the insured sought contractual and extra-contractual damages on several theories, including breach of contract and common law and statutory bad faith. Read More

West Virginia Supreme Court Requires Special Interrogatories to Preserve Coverage Issues for Subsequent Litigation

October 20, 2009

A recent decision by the West Virginia Supreme Court of Appeals could affect cases that an insurance company may be defending subject to a reservation of rights. Insurers must now be pro-active to raise and preserve potential coverage defenses. Failing to ensure that essential interrogatories are posed to the jury could foreclose the insurer from later contesting its coverage obligations. In Camden-Clark Memorial Hospital Association v. St. Paul Fire & Marine Insurance Co., 682 S.E.2d 566 (W.Va. 2009), the insured had a policy of professional liability coverage, but the policy had a large self-insured retention and it also required the insured to defend the claims. The jury found against the hospital and it awarded in excess of $6,500,000. Unfortunately, the jury verdict did not differentiate whether the verdict rested upon negligent or intentional conduct, or both. The court held that an insured that defended itself in the medical malpractice case had the burden of demonstrating the allocation of a verdict between covered and non-covered claims, and it required the insured to pose a special interrogatory to the jury in order to seek that apportionment. In reaching that conclusion, the court cited with approval a case decided under Oklahoma law, wherein the court imposed the duty to ask a special interrogatory upon an insurer that defended a case under a reservation of rights. Id. at 575-76, citing Magnum Foods, Inc. v. Continental Casualty Co., 36 F.3d 1491, 1498-99 (10th Cir. 1994). The upshot of Camden-Clark was that the insured could not obtain an allocation of the verdict between covered and non-covered claims after the fact because it controlled its own defense in the medical malpractice case and it failed to avail itself of the opportunity to have the jury make the required allocation in the first instance. The discussion by the Supreme Court in Camden-Clark appears also to encompass situations in which the issue is not the allocation of damages between covered and non-covered claims, but also the imposition of liability on covered or non-covered theories. Read More

Firm Newsletter, Winter 2009

January 26, 2009

Articles In This Issue: 1. Understanding Bankruptcy Preference Litigation: And How Best To Avoid It 2. Killing the Messenger? How FASB’s Proposal To Expand A Company’s Obligation to Disclose Litigation Loss Contingencies May Do More Harm Than Good 3. Employers’ Cost-Cutting Measures In Strained Economic Times 4. Changes to Pennsylvania’s Realty Transfer Tax Regulations Have Far-Reaching Effects 5. The Next Gold Rush – The Marcellus Shale Natural Gas Basin 6. It Is Important To Properly Classify A Worker As An Independent Contractor Or An Employee Related Information: Firm Newsletter, Winter 2009 Read More