Katheryn E. Eisenmann Appointed to Board of Young Professionals Association

katheryn-eisenmannMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Katheryn Eisenmann, Esq., an associate in Firm’s Labor and Employment Group, has recently been selected to serve as a member of the Board of Directors of South Jersey Young Professionals Association (“SJYPA”).   Eisenmann has also volunteered to co-chair a fundraiser to be held on June 4, 2015 for Catholic Partnerships Schools (“CPS”): a partnership of five elementary schools located in Camden, New Jersey that is committed to providing children (many of whom are impoverished) with the opportunity to achieve an excellent education and participate in otherwise unavailable extracurricular activities.  The two-part event features a happy hour at PBR Bar and Grill followed by a Phillies game at Citizens Bank Park.

SJYPA is known as the premier group of young charitable men and women in South Jersey. A collection of community-minded professionals ages 21-45, SJYPA collaborates for the betterment of the community and is the largest, most influential organized group of charitable young professionals in South Jersey.  In February, the group hosted its annual Halo Ball and raised $50,000 for Camp No-Worries: a summer camp for children with cancer and their siblings to attend at no cost.  For that event, Eisenmann served as the Auction Co-Chair which substantially contributed to the overall funds donated to Camp No-Worries.

Ms. Eisenmann, a graduate of Rutgers Camden School of Law, focuses her practice in the representation of private and public sector employers in the areas of labor and employment and civil rights law matters, as well as litigation arising from these disputes.

Be Prepared… Amtrak Train 188 Derailment

By Vincent T. Cieslik, Esq.

Shortly after 9:30 pm on May 12, 2015, Amtrak Regional Train #188 left the tracks on a curve in the Port Richmond section of Philadelphia, north of 30th Street Station.  Amtrak and emergency response personnel rushed to the late-night accident scene and the nightly news reported the disaster in real time as spot lights and ambulances rushed to the scene to aid the injured.  The next morning, rescue crews still searched for missing passengers, while medical teams at area hospitals treated the wounded.  Members of the National Transportation Safety Board descended on the location to begin what was believed to be a comprehensive investigation of the cause for the accident.  NTSB’s task would be to determine what degree human error played a role in the crash, whether the train and the transportation system failed, and whether safety protocols could or would have prevented the disaster and the loss of 8 lives.  Soon after the accident, the NTSB had determined that shortly before it left the rails, the train was traveling 106 mph on a curve rated at 50 mph.

Quietly behind the scenes, different teams also began their behind the scenes evaluation of the matter.  Plaintiff’s counsel skilled in representing injured people in high stakes personal injury lawsuits quickly mobilized to sign up the injured and began working the inside contacts to gather information on the cause of the accident, no doubt armed with their own transportation or locomotive experts even though no lawsuits had yet been filed.  While the wreckage still lie on its side in the train bed, the plaintiff’s lawyers were scrambling to ascertain the facts as to what occurred, contacting family members of dead or injured passengers, and to be prepared to immediately file suit.  This is not a cautionary tale, it is a routine that has played itself out in numerous instances throughout our recent history nationwide and especially in Philadelphia, home of one of the most plaintiff-friendly state courts in the U.S.: the Philadelphia Court of Common Pleas.

Train 188, bound to New York from Washington with 238 passengers and five crew members aboard, had left 30th Street Station minutes before the accident, which occurred near a curve at Wheatsheaf Lane and I-95.  In Philadelphia the sophisticated plaintiff’s personal injury practitioners do not wait long before mobilizing to evaluate the case, and to immediately file suit. 

Although Philadelphia’s Mayor Michael Nutter first indicated he would not “speculate” about the cause of the crash, shortly thereafter on the national cable television, CNN’s The Situation Room, Nutter did just that, speculating that “clearly” it was “reckless in terms of the driving by the engineer.”  Questions still abound as to the cause of the crash, with local witnesses reporting that they saw a “blue flash” or a series of flashes right before the train left the tracks.  SEPTA itself reported that “something” had hit the front window of one of their other trains, and that something may have hit Train 188 as the cause of the crash.  While details are still being released and NTSB evaluates the train data and blood test of locomotive engineer Brandon Bostian (who has so far failed to recall accident details), plaintiff’s counsel have already published press releases and blogs detailing accounts of former railroad workers with intimate knowledge of the inner-workings of Amtrak on issues of safety, performance, and with facts (and speculation) about what occurred that night.   Plaintiff’s counsel will not be speculating about the cause of the accident, about wild theories of projectiles, and to be sure, they will be focused on the main issues of Amtrak’s liability, that is whether the railline should have installed safety protocols on the southern system already in place on the northern rails due to Congressional mandate.  Also at issue will be a legislative cap on damages, $200M, with arguments over whether certain types of claims may not be covered by the cap, as to whether the cap itself is constitutional, and question of whether the federal government will “do the right thing” and exceed the cap or Amtrak has the right to shield itself from excess liability by law.

Because the train was northbound and had already passed through Philadelphia on its way to New York City, he said, it was likely that most passengers were either from Washington, New Jersey, or New York.  One would presume then, that the expected lawsuits would be filed in those states where the plaintiff’s reside.  However, in this case it should be expected that the lawsuits will be filed in state and federal courts in Philadelphia which are known for higher verdicts and as a result, higher settlement values than the matters filed in New Jersey, New York, or Washington D.C.

For insurers and large corporations, the ability to respond quickly in the case of disaster or accident could be the key to maintaining an even playing field.  Having a defense team with immediate access to their own liability experts can often assist the defense from the beginning, in an attempt to be fully aware of the facts and issues as they develop.  From a defense point of view, the ability to have defense counsel and a defense expert review the case as it develops from the beginning (not after the investigation is closed), review the evidence including vehicles or machinery right after the crash, could prove crucial to the defense and the ultimate determination of liability.  In high stakes litigation our attorneys get involved right away.  We recommend that insurers and their insureds retain counsel immediately, to assess the accident and the facts in real time, in order that the client may be best prepared for imminent litigation and to maintain as even a playing field as possible, with plaintiff’s counsel which we know are doing the same.

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U.S. Department of Labor Adopts New FMLA Regulation on Same Sex Spouses

By Ralph R. Smith, 3rd, Esq.

Recently, the United States Department of Labor (“DOL”) updated its regulatory definition of “spouse” to take into account how to determine when same gender spouses may be eligible for leave under the Federal Family and Medical Leave Act (“FMLA”).  The new proposed regulation that became final and enforceable on March 27, 2015 has adopted a “place of celebration” approach for determining when a same sex spouse is entitled to FMLA leave.  Under this standard, an employee in a legal same gender marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides.  So long as the state where the wedding celebration took place recognizes the legal status of the same sex marriage, FMLA rights exist, even when the resident state does not recognize the legal status of same sex marriage.  This regulation is a change from the then existing DOL regulation that did not include same-gender spouses within the definition of “spouse” if an employee resided in a state that did not recognize same sex marriages. This now discarded approach is known as the “state of residence” approach.

A regulatory change to the definition of “spouse” became necessary because of the U.S. Supreme Court’s decision in U.S. v. Windsor which struck down a provision in the Federal Defense of Marriage Act that interpreted “marriage” and “spouse” as limited under federal law to opposite gender marriages.   In adopting this regulatory “hard and fast” rule, the DOL believes that it has made an employer’s FMLA administrative burden easier for same gender spouses, particularly where that employer has multiple state facilities or utilizes employees who move freely between states that have different marriage recognition laws.

In light of this recent regulatory change, employers need to update FMLA policies and train staff on this new regulatory meaning of “spouse” so management knows how to appropriately administer required FMLA legal requirements.

Plaintiff’s Failure to File Timely Notice of Tort Claim Due to Attorney’s Illness May Constitute Extraordinary Circumstances and Justify Late Notice of Claim

By Betsy G. Ramos, Esq.

In the published opinion of Beyer v. Sea Bright Borough, 2015 N.J. Super. LEXIS 84 (App. Div. May 19, 2015)), the Plaintiff Brian Beyer claimed that the Sea Bright Police Department physically abused him when he was arrested in August 2013. Upon his release from jail, he consulted with Clifford Kuhn (“Kuhn”), counsel who had represented him previously on matters. In October, Kuhn was diagnosed with a relapse of lung cancer and underwent emergency surgery.  In December, Kuhn told him he could no longer handle his case and he died in early 2014. However, Kuhn never filed a notice of tort claim on plaintiff’s behalf within the required 90 day time period.

Beyer retained new counsel on December 30, 2013, who filed a notice of tort claim on January 8, 2014. His new attorney also filed a motion for leave to file a late notice of claim. That motion was denied by the trial court. The trial court reasoned that attorney inattentiveness, even if the reason is tragic, does not constitute extraordinary circumstances to justify the late filing. This appeal ensued.

The Appellate Division found that an attorney’s failure to act due to his serious incapacity or death are not routine matters and should not be equated with mere inattention. On the existing record, the court could not conclude that Beyer’s failure to file a timely notice of claim was simply something in “the nature of inadvertence, negligence, inattentiveness, or ignorance.” On its face, his lawyer’s illness and related incapacity appear to represent an extraordinary situation.

The appeals court found that it required further exploration and consideration by the trial judge. Thus, the Appellate Division reversed the order of the trial court dismissing the case and remanded the case back to the trial court for a plenary hearing to determine the facts surrounding Beyer’s failure to file a timely notice of claim and the extent to which it was a result of his lawyer’s grave illness, as opposed to “inadvertence, negligence, inattentiveness or ignorance.”

This case represents likely a narrow exception to the mandate in the Supreme Court case of D.D. v. University of Medicine & Dentistry of NJ, 213 N.J. 130 (2013) to strictly construe the extraordinary circumstances standard for plaintiffs seeking leave to file a late notice of claim. Nevertheless, it does make inroads into D.D.’s holding and carves out a narrow exception when the plaintiff’s attorney is seriously ill during the 90 day period following the accrual of the plaintiff’s claim.

John W. Pszwaro Joins Capehart Scatchard’s Workers’ Compensation Department

john-pszwaroMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that John W. Pszwaro, Esq. recently joined the Firm’s Workers’ Compensation Department in its Mt. Laurel office.

Mr. Pszwaro, a Collingswood resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Mr. Pszwaro received his law degree from Rutgers University Law School of Law in Camden and his B.A. degree in Spanish Literature and Culture from Stockton University.  Upon law school graduation, Mr. Pszwaro worked as a law clerk to the Honorable David W. Morgan, in the New Jersey Superior Court, Gloucester County Vicinage.

Michael L. Bileci Addresses Insurance Professionals

michael-bileciMt. Laurel, NJ – – Workers’ Compensation Attorney and firm Shareholder, Michael L. Bileci, Esq.,   recently spoke at a seminar sponsored by Brown & Brown Public Risk Advisors of New Jersey.

Mr. Bileci spoke on the topics of “Recent Cases and Trends in Workers’ Compensation” and “Key Defenses in Workers’ Compensation.”  Mr. Bileci summarized recent Appellate Division and Division of Workers’ Compensation cases impacting workers’ compensation law in New Jersey.  Additionally, he addressed the defenses of fraud, statute of limitations issues, and the going and coming rule.

Mr. Bileci, a Woodbury resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.  He received his law degree from Widener University School of Law, cum laude and his B.A. degree from Saint Joseph’s University, cum laude.  He is admitted to practice law in New Jersey and Pennsylvania.

Coverage Disputes Between PIP Carriers Subject to Arbitration

By Gina M. Zippilli, Esq.

In New Jersey, it is statutorily mandated that disputes between insurance companies over contribution for personal injury protection (“PIP”) benefits be arbitrated.  What happens, however, where coverage between those carriers is disputed and must be resolved?  Who decides, the courts or an arbitration panel?  This was the issue addressed in State Farm Indemnity Co. v. National Liability & Fire Ins. Co., 439 N.J. Super. 532 (App. Div. 2015).  The trial court held, and the Appellate Division affirmed, that coverage issues must be arbitrated as well.

The facts are simple.  Defendant motorist struck plaintiff while riding his bicycle.   Plaintiff had no automobile insurance.  Plaintiff, nevertheless, would be entitled to PIP coverage under the policy of a family member with whom he resided.  According to State Farm, plaintiff was a resident relative of both his father (with whom State Farm insured) and also plaintiff’s cousin who had a policy with National.  State Farm paid the PIP benefits due to plaintiff and thereafter sought contribution from National under N.J.S.A. 39:6A-11.  This statute permits multiple insurers who are liable to pay PIP benefits to recover a pro rata share of benefits paid from the other insurers.  It also provides that contribution may be sought through intercompany arbitration and/or inter-company agreement.

National refused to contribute arguing that plaintiff and his cousin did not live in the same household at the time of the accident, and thus no coverage existed.  State Farm filed a summary action in the Law Division to compel arbitration.  National maintained that since contribution existed only if it was liable, then it could only be compelled to arbitrate once a trial court determined coverage.  It reasoned that the issue of residency and whether it existed was a complex factual matter that must be decided by the trial court alone.   The trial court disagreed.  The Appellate Division affirmed.  In short, the courts reasoned that arbitration requirements in the statute are broadly construed in favor of submission of all issues to arbitration instead of bifurcating issues between the courts and arbitration.

John H. Geaney Addresses New Jersey Self Insurer’s Association

john-geaneyMt. Laurel, NJ – – Capehart Scatchard Shareholder, John H. Geaney, Esq., recently spoke at the New Jersey Self Insurers’ Association Spring Conference held at Harrah’s Resort and Casino in Atlantic City, New Jersey.

Mr. Geaney’s presentation was titled, “Guess the Defense.”   His talk featured the presentation of several scenarios covering all the defenses in workers’ compensation. The audience was then asked to guess the defense covered by the scenario and whether it was compensable or not.

Homeowner Defendant Entitled to Summary Judgment When Dog Bite Plaintiff is Determined to Be a Trespasser

The recent matter of Ahrens v. Rogowski,2015 N.J. Super Unpub. LEXIS 308 (App. Div., February 20, 2015) provides an interesting analysis of the impact of classification of the legal status of a Plaintiff in a dog bite case.

In this matter, Plaintiff Ahrens visited a commercial establishment across the street from the Defendant homeowner’s property. Plaintiff then tried to call her husband to say that she was delayed, but her cell phone was not working. She accordingly decided to ask the people who lived across the street- Defendant- if she could use their phone.

As Plaintiff approached the property, four or five adults were reportedly outside on the side deck of the home. Plaintiff stated that she did not observe a dog, a “beware of a dog” sign which was found to have been on the property, or anything else indicating that a dog was on the property. Plaintiff reportedly called out “excuse me” a few times to the people on the property, but admitted that none of the people initially acknowledged the same. Plaintiff then left the sidewalk and walked a few feet across the lawn in the direction of the side porch.

At this time, Defendant’s dog- which was attached to a line which permitted the dog access to the lawn area but not the sidewalk- ran toward the Plaintiff, biting and clawing her left thigh. As this was happening, the adults, upon becoming aware of Plaintiff’s presence, began yelling at her, questioning why she did not heed the “beware of dog” sign.

Plaintiff said that when she was able to leave the property and go to another adjacent commercial store, somebody there reportedly stated that the dog was “vicious.” However, Plaintiff could provide no substantiation of that proposition.

Plaintiff made several significant admissions in the context of this Motion for Summary Judgment by the Defendant. For example, she admitted she did not have permission to enter Defendant’s property, and further admitted that the adults on the premises did not appear to hear her. She also admitted that she did not enter the property because she was in any danger, and while she did not see the “beware of dog” sign, she acknowledged that it was present.

In affirming the trial court’s granting of the Defendant homeowner’s Motion for Summary Judgment, the Appellate Division referenced the dog bite statute, N.J.S.A. 4:19-16, which reads in pertinent part:

 the owner of any dog which shall bite a person while such a person is on or in a public place, or lawfully on or in a private place including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.

For the purposes of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.

 In DeRobertis v. Randazzo, 94 N.J. 144, 151 (1983), our Supreme Court indicated that “those lawfully on the property include both invitees and licensees (including social guests), but not trespassers.”

In this appeal, Plaintiff argued the trial court erred in holding that Plaintiff was a trespasser, which she asserted was a factual determination for the jury. However, for the reasons expressed above, the Appellate Division distinguished several other cases to find that, for the purposes of the dog bite statute, Plaintiff was in fact a trespasser, and therefore unable to recover under N.J.S.A. 4:19-16.

The Court also engaged in an analysis of the matter under the traditional common law negligence approach, as set forth in Hopkins v. Fox & Lazo, Realtors 132 N.J. 426 (1993). The Appellate Division indicated that in this matter Plaintiff was “easily categorized as a trespasser, and thus application of the traditional common law categories is appropriate.” The duty that a landowner owes to a trespasser is slight, essentially simply to refrain from willfully and wantonly causing them injury. Veja Muniz v. Piedilato 154 N.J. 496 501 1998. The landowner “has a duty to warn trespassers only of artificial conditions on the property that pose or risk of death or serious bodily harm to the trespasser.” Hopkins, supra., 132 N.J. at 434.

Accordingly, the Ahrens decision, while presently unpublished, does emphasize the importance of the classification of the status of Plaintiffs in litigation in general and dog bite claims in particular. Defense counsel should accordingly focus on those issues extensively in discovery.

Court Holds Unclear Yet Signed Liability Waiver Insufficient to Bind Injured Gym Patron

(A Pennsylvania Perspective)

By Charles F. Holmgren, Esq.

While liability waivers are essential for businesses to protect themselves against lawsuits stemming from patrons injured in an activity it provides, such as ski resorts, sports leagues and gyms, waivers not sufficiently formatted in a way that, despite bearing the patron’s signature, clearly places the patron on notice of its contents and its legal significance may not be legally enforceable. Such was the state of the waiver in the Pennsylvania Superior Court case Hinkal v. Gavin Pardoe & Gold’s Gym, 2015 Pa. Super. Unpub. LEXIS 1108 (April 24, 2015) where, due to the location, font and format of the liability waiver within the membership agreement signed by the plaintiff, the waiver did not put the plaintiff on notice that she had waived her right to recover in court for her injuries and she was able to recover therefrom.

The Hinkal case arose as a result of injuries sustained by the plaintiff, Melinda Hinkal, who alleged she sustained a serious neck injury while using a piece of exercise equipment at the gym owned by defendant Gold’s Gym and while under the supervision of her trainer, defendant Gavin Pardoe. At the beginning of her membership with Gold’s Gym, Hinkal signed a Membership Agreement with Gold’s Gym. The membership agreement was printed on a single, two-sided page in a carbon copy packet. The only signature line was located on the front side. In the paragraph immediately above the signature line, not distinct in font, font size, boldface, capital letters or set apart in any other way, the agreement states “[d]o not sign this agreement until you have read both sides. The terms on each side of this form are a part of this [a]greement.” On the reverse side are 13 additional terms, formatted in single spacing and printed in light gray ink on pink carbon paper. The waiver language is the 12th of the 13 terms and not differentiated in any manner from the surrounding paragraphs. This reverse side does not include any space for a signature or for initials where a signatory to confirm their acknowledgement of the additional terms; nor does the front side contain a space for a signatory to confirm his acceptance of the additional terms from the reverse. It was undisputed that the plaintiff did not read the waiver language on the reverse side of the agreement and no Gold’s Gym employee verbally advised her of the exculpatory clause contained therein.

The trial court granted the motion for summary judgment filed on behalf of Pardoe and Gold’s Gym enforcing the liability waiver in the Membership Agreement. Hinkal appealed, arguing that the waiver on the back page of the membership agreement she signed was not valid and not enforceable. The Superior Court agreed, reversing and remanding the matter back to the trial court.

In coming to this conclusion, the Superior Court relied on the case of Beck-Hummel v. Ski Shawnee, Inc., which held that an unread and unsigned exculpatory clause may be enforceable if the clause is sufficiently conspicuous such that a reasonable person would have been put on notice of its contents. Beck-Hummel set forth a three factors to analyze when reviewing liability waivers: 1) the placement of the exculpatory clause in the document, 2) the size of the clause’s print, and 3) whether the clause was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document.

Applying the three elements of the Beck-Hummel test, the Court emphasized the importance of the fact that the exculpatory clause was printed on the reverse of the one page document and not immediately proximate to the signature line. The font size of the exculpatory clause was not distinct from any of the other 12  terms on the reverse side nor was the font size of the sentence advising the plaintiff to read both sides of the agreement distinct from any of the surrounding text. Importantly, the undisputed fact that the plaintiff did not read the language of the membership agreement does not alter this analysis or the holding of the matter, because the format of the release in failing to advise the plaintiff she must read both sides or require her to initial acknowledging she has read both sides was not so conspicuous so as to put her on notice.

As this case shows, while business owners may rest easy knowing they have a liability waiver they believe will relieve them of any fault in the event a patron sustains an injury engaging in an activity on the premises, it is important to not only read, but analyze the format of the release again. Should the liability waiver not sufficiently give a signatory notice of its contents, by being set apart in formatting, font, font size, it may not sufficiently protect the business against lawsuits from which they may have previously anticipated immunity.

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