by Mark Bauman | Feb 18, 2023 | SUCCESSES
UPDATE: Third Circuit Upholds Grant of Summary Judgment on Appeal
Following the events described below, the legal malpractice insurer filed an appeal to the United States Court of Appeals for the Third Circuit. The Third Circuit affirmed the grant of summary judgment for the Firm’s client on the basis that he was not a joint tortfeasor with the third attorney, who allowed a default judgment to be entered.
Oral argument was conducted by Dan Ryan. You can read coverage of the argument by The Legal Intelligencer HERE.
In its opinion, the court held that it was appropriate to apply the multifactor test to determine whether the Firm’s client and the third attorney were joint tortfeasors. The court found that the two attorneys owed different duties to the business owners and years passed between their actions. Finally, the court found that the default judgment may have been a direct result of the actions of the Firm’s client, but it was caused solely by the actions of the third attorney. Therefore, the two attorneys did not cause a single, unapportionable injury to the business owners and the two attorneys were not jointortfeasors.
Since this determination alone was sufficient to affirm Judge Tucker’s grant of summary judgment, the Third Circuit did not reach the question of whether the Firm’s client was a proximate cause of any harm to the business owners.
Marshall L. Schwartz and Jeffrey P. Brien obtained summary judgment in the United States District Court for the Eastern District of Pennsylvania on behalf of an attorney in a legal malpractice case. The Firm’s client had represented business owners in a Bucks County township whose application for an occupancy permit was denied. The business owners felt that the permit was denied for improper reasons and sought to bring suit against the township and certain township officials. The Firm’s client prepared a complaint with RICO and civil rights causes of action but declined to continue with his representation of the business owners. The business owners filed the complaint pro se.
The business owners then retained a second attorney to pursue the federal action. The federal action was eventually dismissed. Three township officials then sued the business owners under the Dragonetti Act, alleging wrongful use of civil proceedings. A third attorney was retained to defend the business owners. However, he failed to file an answer to the Dragonetti Act complaint and a default judgment was taken.
Liability having been admitted through the default judgment, a trial on damages returned a verdict of $3,030,000 against the business owners. The business owners then sued their third attorney for legal malpractice. The third attorney’s legal malpractice insurer resolved both of these actions through the payment of $1,500,000 to the township officials.
The legal malpractice insurer then sued the Firm’s client and the second attorney for contribution, alleging that they were also negligent in their representation of the business owners. At the close of discovery, summary judgment motions were filed.
The Honorable Petrese B. Tucker granted the Firm’s motion, finding that its client could not be a joint tortfeasor with the third attorney, a requirement for contribution. Judge Tucker also granted summary judgment as to the Firm’s second argument, that its client was not a proximate cause of any harm to the business owners as the subsequent events were not foreseeable. After granting summary judgment for the Firm’s client, Judge Tucker held that summary judgment was also appropriate for the second attorney on the same grounds.
You can read the December 28, 2011 story on this case published in The Legal Intelligencer HERE.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania recently ruled for an insurance company represented by Dan Ryan and Jeffrey P. Brien in a breach of contract and bad faith action. The insurance company had previously denied coverage to a lawyer after he failed to timely report a claim under his claims-made insurance policy.
The lawyer had represented a woman whose son drowned while swimming near an unsupervised beach. The lawyer timely filed a wrongful death action but failed to comply with the notice requirements of the New Jersey Tort Claims Act. The action was dismissed and an appeal was unsuccessful, also for procedural reasons.
Meanwhile, the lawyer renewed his insurance policy and verified that he was aware of no circumstance which could “reasonably support” a claim against him. By that time, the action he filed had been dismissed. The lawyer alleged that his client said that she did not intend to sue him.
The client did file a legal malpractice action against the lawyer. He reported the claim to the insurance company which denied coverage on the basis that the claim arose before the policy period in which it was reported. The lawyer defended the legal malpractice action at his own expense and prevailed. He then initiated an action against the insurance company seeking reimbursement of his defense costs as well as damages under the Pennsylvania bad faith statute, including costs, fees, and punitive damages. At the end of discovery, both sides moved for summary judgment.
The insurance company’s motion for summary judgment was granted and the lawyer’s motion for summary judgment was denied. Judge Robreno held that the phrase “reasonably support” was not ambiguous. Next, Judge Robreno applied the hybrid subjective/objective test advocated by Mr. Ryan and Mr. Brien and found that the lawyer was aware that the underlying action was dismissed on procedural grounds and that a reasonable attorney would believe that failure to comply with a statute of limitations could be grounds for a legal malpractice claim. Therefore, the lawyer should have reported the claim when he renewed the insurance policy. Judge Robreno further held that the insurance company was not required to prove prejudice.
Finally, Judge Robreno found that the lawyer’s claim for bad faith failed as a matter of law because he produced no evidence rebutting the denial letter from the insurance company which noted specific provisions of the insurance policy and how the lawyer’s actions constituted a violation of the policy.
Judge Robreno’s ruling was a complete victory for the insurance company represented by Mr. Ryan and Mr. Brien.
Featured in the Legal Intelligencer: CLICK HERE
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Anthony P. DeMichele successfully defended an MRI facility and one of its technologists at arbitration in a matter involving claims of professional negligence. Plaintiffs were husband and wife and claimed that the husband was injured when he fell from a MRI table after his MRI was completed. The wife brought a claim for loss of consortium. Plaintiffs argued that the MRI facility and its technologist were liable because the technologist failed to safely remove the husband from the table after the MRI machine malfunctioned. Mr. DeMichele argued that the MRI facility had appropriate policies and procedures in place for the safe removal of its patients in the event of a table malfunction and that the technologist followed these policies and procedures. Further, Mr. DeMichele argued that it was the husband’s own actions and failure to follow the instructions that were provided to him, which caused him to sustain his alleged injuries. Mr. DeMichele also argued that the husband’s alleged injuries were inconsistent with the medical records from his treating physicians. The arbitration panel agreed with Mr. DeMichele and entered an award in favor of the MRI facility and its technologist on all claims.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Marshall L. Schwartz and Paul E. Peel recently obtained a defense verdict in favor of two family physicians and their medical group in the United States District Court for the Eastern District of Pennsylvania. The plaintiff, who is deaf, alleged that the defendants violated the federal Rehabilitation Act, 29 U.S.C.§ 794, et. seq., while she was their patient by failing to provide reasonable accommodations for her disability. Specifically, the plaintiff claimed that she requested a sign language interpreter for each of her appointments but was not provided one. As a result, plaintiff maintained that she was unable to effectively communicate her problems and concerns to the defendants. She contended that she felt humiliated and disrespected by the way the defendants treated her while she was their patient. The plaintiff also alleged that the defendants ended their physician-patient relationship with her solely because of her disability.
Defendants argued that the plaintiff had advised them that she did not need an interpreter at her appointments because she was able to communicate through reading lips and passing written notes. The defendants explained that, if there was any potential misunderstanding or if they needed to clarify something for the plaintiff, then they would write notes for her to read. The defendants asserted that, during the entire time that she was their patient, the plaintiff never asked for an interpreter or indicated that she could not understand the defendants and that the defendants never had any difficulty communicating with her. Defendants also established that their office policy required that an interpreter be provided if a patient requested one. Finally, the defendants testified that they ended their physician-patient relationship with the plaintiff, not because she was deaf, but rather, because she compromised the relationship by verbally abusing a member of their staff.
After deliberating for less than an hour, the jury returned a unanimous verdict in the defendants’ favor, finding that the defendants did not violate the Rehabilitation Act.
by Mark Bauman | Feb 18, 2023 | SUCCESSES
Marshall L. Schwartz and Jeffrey P. Brien recently prevailed in the Superior Court after the plaintiff failed to file a certificate of merit and a judgment of non pros was entered in the Court of Common Pleas of Philadelphia County.
The attorney represented by Mr. Schwartz and Mr. Brien represented the plaintiff in four separate matters: the filing of a writ of habeas corpus, representation in an extradition proceeding, an appeal of the denial of an expungement petition, and an appeal of the denial of an assessment of costs and modification of sentence. The plaintiff alleged that his representation in each of these matters was deficient and filed a complaint with causes of action for malpractice, breach of contract, unjust enrichment, and negligence. However, he did not file a certificate of merit.
Accordingly, the defendant filed a Notice of Intention to Enter Judgment of Non Pros of Professional Liability Claim. The plaintiff responded by filing a Motion to Determine Necessity of Certificate of Merit. The Honorable William J. Manfredi denied the motion and ordered the plaintiff to file a certificate of merit.
Prior to the deadline to file a certificate of merit, the plaintiff filed a “Motion to Place This Matter In Deferred Status.” When the deadline elapsed, the defendant entered a judgment of non pros. The plaintiff filed a Petition to Strike And/Or Open Judgment of Non Pros. The Honorable Marlene F. Lachman issued an Order denying the petition. The plaintiff appealed.
The Superior Court affirmed the Order of Judge Lachman. In a Memorandum authored by the Honorable Jacqueline O. Shogan, the Superior Court found that a certificate of merit was required for each cause of action in the plaintiff’s complaint because each implicated the attorney’s overall exercise of care and professional judgment in carrying out his work for the plaintiff. Additionally, even if no expert testimony was required at trial, the plaintiff was still required to file a certificate of merit stating as such as set forth by the Pennsylvania Rules of Civil Procedure.
The Superior Court further held that the plaintiff’s Motion to Determine Necessity of Certificate did not constitute a motion for an extension of time to file a certificate of merit, which would have prevented the defendants from entering a judgment of non pros while the motion was pending. Finally, the Superior Court held that the plaintiff’s complaint did not set forth a meritorious cause of action, a requirement to open a judgment of non pros.
