On the Pulse…Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

In Munir v. Pottsville Area School District, 723 F.3d 423 (3d Cir. 2013), Kim Boyer-Cohen (Philadelphia, PA) obtained an affirmance from the Third Circuit of the summary judgment obtained by Christopher Conrad (Harrisburg, PA) in an action brought under the Individuals with Disabilities Education Act. In Munir a father sought reimbursement for the cost of placing his child at a private residential facility and a private boarding school following multiple suicide attempts. On appeal, the Third Circuit held that the father was not entitled to reimbursement for the costs of placing the child, who suffered from emotional disturbance, at a private residential facility because the primary purpose of that placement was the provision of mental health treatment and any educational benefit that the student received was incidental. The Third Circuit also found that the father was not entitled to reimbursement for the costs of placing the student at a private boarding school because, at the time the student went there, the school district had proposed an individualized education plan (IEP) that met all of the student’s educational needs.

Shane Haselbarth (Philadelphia, PA) wrote the brief, and trial attorney Ron Puntil (Pittsburgh, PA) argued the appeal, in this chiropractic malpractice case. Bell v. Willis, et al., 1487 WDA 2012 (Pa.Super. Nov. 8, 2013). The trial court dismissed the plaintiff’s failure-to-obtain-informed-consent claim against her treating chiropractors, and the jury returned a verdict of no negligence regarding the treatment. On appeal, the plaintiff sought recognition in the Commonwealth of Pennsylvania of an informed consent claim against the chiropractors, but her position was rejected in a unanimous, published decision. The plaintiff has filed a petition for allowance of appeal in the Supreme Court.

Bruce Morrison and John Hare (Philadelphia, PA) won a unanimous victory in the Pennsylvania Supreme Court in a case involving the standard for prejudice that an insurer must meet to deny coverage based upon late notice of a “phantom vehicle” claim. The Supreme Court upheld the Superior Court’s reversal of a trial court’s finding that an insurer, our client, was not prejudiced by the insured’s failure to report a phantom vehicle within the 30-day time limit set forth in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1702. The Supreme Court held that it is reasonable to require an insured to alert the insurer within a month’s time and, while an insurer would not be permitted to deny coverage absent prejudice caused by late notice, showing such prejudice does not require proof of what the insurer would have found had timely notice been provided. Finally, the Supreme Court explained that an insurer is always obligated to investigate a claim such as it can, but where the insured’s delay results in an inability to thoroughly investigate and thereby uncover relevant facts, prejudice is established.

Tom Wagner, Carol VanderWoude and John Hare (Philadelphia, PA) obtained a reversal by the Pennsylvania Superior Court of a trial court order granting the plaintiff a new trial after the jury had returned a defense verdict for our client. In Gokey v. Terminix, the jury found no negligence on the part of our client, but the trial court awarded a new trial on the basis that our client was negligent as a matter of law and the jury verdict was, therefore, contrary to the evidence. The Superior Court reversed and reinstated the defense verdict on the basis that the question of our client’s liability was properly submitted to and decided by the jury.

Cynthia Kohn (Orlando, FL) and Jim Gicking (Philadelphia, PA), of our appellate department, persuaded the Fifth District Court of Appeals to affirm that trial court’s refusal to grant the plaintiff’s request for a new trial for claimed errors in jury selection. The court also affirmed the denial of a directed verdict to the plaintiff on the issue of whether he sustained a permanent injury in a car accident, entitling him to a non-economic damage award.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

*Prior results do not guarantee a similar outcome.