C&W Journal

May 28, 2016

Digging Deep to the Rock: WV Supreme Court Solidifies Arbitration Agreements Under the FAA

In Geological Assessment & Leasing v. O'Hara , 780 S.E.2d 647 (W.Va., 2015), the Supreme Court of Appeals of West Virginia considered three consolidated appeals, each arising out of a circuit court's ruling that a plaintiff's claim that a defendant...

May 28, 2016

Commercial Driving Scores Back on Public Display

On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation Act (FAST Act), which is the first federal law in more than ten years to provide long-term funding certainty for surface transportation. The FAST Act...

May 25, 2016

New Jersey Premises Liability Update — Recent Decisions on the...

Anyone familiar with New Jersey's premises liability law is also familiar with the mode-of-operation liability principles applied to cases where a dangerous condition of the property has been shown to arise from the defendant's decision to provide...

March 04, 2016

Heart Attack Case—Circumstantial Evidence of Physical Exertion...

In the case of Robert Dietz (deceased) by Judith Dietz v. WCAB (Lower Bucks County Joint Municipal Authority ), No. 2051 C.D. 2014, 2015 Pa. Commw. LEXIS 532, the Commonwealth Court addressed the burden of proof in a fatal claim heart attack case....

March 04, 2016

Complaints of Cumulative Trauma Constitute a Work Injury

On November 23, 2015, the Commonwealth Court of Pennsylvania held that an employee’s notice to his employer, stating that he was experiencing back pain as a result of cumulative trauma, served as timely notice of a work-related injury. Gahring v....

March 02, 2016

Retroactivity of the 2011 PIP Amendments, a Question of Legislative...

The New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984, L. 1983, c. 362, provides for a statutory right of recovery of personal injury protection (PIP) benefits paid by an automobile liability carrier. See N.J.S.A ....

March 02, 2016

Touhy Regulations in Malpractice Actions

The Department of Health routinely inspects healthcare facilities to determine compliance with state and federal regulations, sometimes in response to complaints from an aggrieved family member. During these investigations, inspectors interview...

January 06, 2016

More Flexibility Established in the Requirement to Send a Notice of...

In the case of the School District of Philadelphia v. WCAB (Hilton ), 117 A.3d 232 (2015), the Pennsylvania Supreme Court looked at the defendant’s obligation to provide the claimant with a Notice of Ability to Return to Work, LIBC-757, prior to a...

January 06, 2016

NJ Appellate Division Update: Off-Duty Employee’s Trip to Cash...

The Superior Court of New Jersey’s Appellate Division recently revisited the oft-argued and fact-sensitive arena of “course and scope” when it reversed the NJ WC Division’s decision in the matter of Robert Miller v. Saker Shoprite . In sum, the...

January 06, 2016

Pennsylvania Insurers: Keep Your Original “Sign-Down” Waivers or...

In Schoenberg vs. State Farm , CCP Lackawanna County, No. 2012-CV-5005, the Honorable Carmen D. Minora denied the defendant’s Motion for Summary Judgment on the issue of the amount of UM/UIM limits pertaining to an insurance policy. ...

January 06, 2016

Negligence Concepts in Strict Liability: No Longer a Small-Town...

In pursuing products liability cases, plaintiffs’ attorneys have long asserted that pursuant to Pennsylvania case law, negligence concepts have no place in strict liability cases as a means of thwarting a defense predicated on a plaintiff’s...

January 06, 2016

Cyber Security Vulnerabilities: Is Your Medical Device At Risk?

Cyber security incidents typically involve the disclosure of financial data or protected health information (PHI). On July 31, 2015, The U.S. Food and Drug Administration (FDA) issued an alert to health care facilities to discontinue use of the...

January 06, 2016

Minors Now Have an Independent Right to Recover Medical Expenses

For many years prior to 2008, Pennsylvania has repeatedly refused to grant an independent right to minors for the recovery of medical expenses prior to the age of majority (18 years of age). The reasoning behind this antiquated rule was expressed in ...

November 28, 2015

Exception to Requirement of Notice of Ability to Return to Work ...

Generally, the issuance of a Notice of Ability to Return to Work (PA Form LIBC-757) is a prerequisite to obtaining a modification or suspension of a claimant’s benefits in the context of Claim, Modification, and/or Suspension Petitions. Section 306(b)...

November 28, 2015

Pennsylvania Commonwealth Court Declares IRE Statute Unconstitutional

Section 306(a.2) requires that a claimant submit to an Impairment Rating Evaluation (IRE) after the expiration of the claimant’s receipt of 104 weeks of temporary total disability (TTD) benefits. The IRE provides a mechanism for adjusting a claimant’s...

November 28, 2015

Authorized Knee Repair Does Not Automatically Create Compensability...

When an employer authorizes a knee repair surgery, could it be liable for an eventual total knee replacement when there is evidence of pre-existing degenerative arthritis? It has often been assumed by a claimant’s counsel that the employer is...

November 28, 2015

Not So Fast!—West Virginia Supreme Court Takes “Final” Out of Final...

In State ex rel. First State Bank v. Hustead , 2015 LEXIS 974 (Oct. 8, 2015), the Supreme Court of Appeals of West Virginia found that a bank was not entitled to a writ of prohibition as to the trial court’s grant of a customer’s motion for relief...

November 28, 2015

Reservation of Rights Does Not Reserve Insurer’s Right to Consent...

The Pennsylvania Supreme Court in Babcock & Wilcox v. American Nuclear Insurers , 2015 Pa. LEXIS 1551 (July 21, 2015), a case of first impression, addressed the issue of whether an insured forfeits insurance coverage by settling a tort claim...

November 28, 2015

NJ Supreme Court Considers the Limits of Liability Coverage Owed to...

In a matter handled by attorneys other than those at Cipriani & Werner, the New Jersey Supreme Court considered to what extent the issuer of a basic automobile policy voided due to fraudulent application must pay the liability claims of innocent third...

September 28, 2015

Imminent Surgery Does Not Mean That a Claimant Has Not Reached...

Even when a claimant has not reached full recovery and has not returned to work in any capacity, there are still avenues available to reduce workers’ compensation exposure. One of these avenues is a medical examination called an Impairment Rating...

September 28, 2015

Plead First; Discovery Second

In Becker v. Smith & Nephew, Inc. , the District Court of New Jersey recently held that plaintiffs could not compel answers to pre-complaint discovery in order to form the basis of the complaint. ...

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