Philadelphia Injury Lawyer Blog

A recent construction injury case decided by a Philadelphia jury illustrates the legal principal of comparative negligence. Many times a client will ask me, “What if I was partly at fault in the accident?” In the case of Bell v. Lafayette College, a roofer fell off a ladder while working in the rain at Lafayette College. He fractured his heel and shoulder and claimed he could not return to work. The Philadelphia jury awarded a $2.38 million dollar verdict. David Beil, 47, sued the college and two contractors, Telesis Construction and Masonry Preservation. The contractors settled during trial for $900,000 each. Beil asserted at trial that despite wet and muddy conditions due to rain, Lafayette College prohibited him and other construction workers from using an indoor stairway to the roof, which would have been much safer to access the roof. Instead the construction worker used a ladder. The defense attorney for the college argued that it was Beil’s own fault for deciding to climb a wet and muddy ladder in the rain without permission. The Philadelphia County jury on Oct. 27 found that Telesis was 50% liable, Lafayette College was 35% liable, Masonry was 10% liable and Beil was 5% liable. It awarded $6.8 million. Because the college was 35% liable, Beil was awarded $2.38 million of the $6.8 million dollar verdict.

This illustrates the legal concept of comparative negligence in a personal injury case, which is one of the main questions to answer in any slip and fall accident. Under Pennsylvania and New Jersey law, you may still recover damages if you are partially at fault, unless a judge or jury finds you to be more than 50% responsible for your own injury. In other words, if you were found to be 40% at fault, and the property owner was found to be 60% at fault, you can recover damages for your slip and fall equal to 60% of the amount awarded by the jury. This is known as "comparative negligence". There is no formula for arriving at a precise number for a person's comparative negligence. You need an experienced slip and fall lawyer to negotiate for your settlement with an insurance adjuster or possibly argue your case to a jury at trial to discuss all of the factors that might have caused the accident.

Source: www.verdictsearch.com.

Pennsylvania attorneys face new obligations in personal injury and workers’ compensation cases when receiving a settlement, verdict or award. On July 7, 2006, Governor Rendell signed Act 109 (effective September 5, 2006), which amends Title 23 of the Domestic Relations Code and allows the Department of Public Welfare to intercept child support payments that are past due from lump sum monetary verdicts, awards or settlements paid by defendants, insurance companies and workers’ compensation sources. The law states that no payment can be made until an outstanding child support obligation is satisfied.

For example, if a plaintiff in a personal injury case in Philadelphia settles the case, the plaintiff must provide her attorney with a statement containing his name, address, date of birth, social security number and written documentation as to whether back due payments exist from the Pennsylvania child support enforcement system website. The attorney must then obtain a report from the website and check to see if there is any outstanding arrears or lien.

In Pennsylvania workers’ compensation cases, the workers’ compensation judges are requesting this information be presented to them before a settlement is approved. According to the Pennsylvania Department of Labor & Industry, no order providing for a payment shall be entered by the workers’ compensation judge unless the prevailing claimant provides the judge with written documentation of arrears from the Pennsylvania Child Support Enforcement System Web site, or, if no arrears exist, written documentation from the Web site indicating no arrears. The judge shall order payment of the lien for overdue support to the department’s state disbursement unit from the net proceeds due the claimant. The Pennsylvania Department of Labor & Industry, Bureau of Workers’ Compensation has the forms listed on their website to comply with Act 109.

I am proud to be a “Philadelphia Lawyer.” This term, Philadelphia lawyer, has always been synonymous with a cunning or shrewd lawyer, a super lawyer, who is able to use the technicalities of the law in his or her favor. But the origin of the term, Philadelphia Lawyer, pre-dates the founding of this country. The term was originally applied to Andrew Hamilton who obtained the acquittal of a German printer by the name of John Peter Zenger. Zenger was being tried on the charge of publishing "seditious libels” or treasonable defamation in New York in 1735. No one wanted to take Zenger's case. Zenger could not find one New York lawyer to defend him. But Hamilton did agree to take the case and in New York his argument to the jury on behalf of Zenger was spellbinding. Hamilton conceded that Zenger had printed libels about Royalist governor William Cosby. But in his closing argument, Hamilton argued that the law as it stood was both immoral and wrongly applied and ought to be nullified by the jury. He told the jury that their verdict was more than whether Zenger was guilty, but rather was about freedom of exposing and opposing power and government by speaking and writing the truth. In short, 41 years before the Declaration of Independence and 50 years before the Constitution, Hamilton argued for the First Amendment and freedom on the press. Zenger was acquitted. It was said that when the jury returned its verdict those in the galleries exclaimed: "Only a Philadelphia lawyer could have done it!" As noted by the Philadelphia Bar Association web site, “Ever since then the term "Philadelphia lawyer" has come to characterize a particularly adept lawyer: more clever; craftier; a lawyer who will find a way to prevail for his/her client.

In a new case the Superior Court of Pennsylvania upheld the Philadelphia trial court in finding that a Philadelphia man injured in an automobile accident was entitled to “full tort” and not “limited tort” even if he owned an uninsured vehicle. Two types of insurance coverage can be purchased in Pennsylvania, which are known as "limited tort option" and "full tort option." Under Pennsylvania law, those who select the limited tort option may not bring suit for non-economic damages or "pain and suffering," unless they have suffered a "serious injury."

In Progressive Halcyon Ins. Co. v. Kennedy, 908 A.2d 911 (Pa. Super. 2006) the Court ruled that Anthony Kennedy was entitled to bring an uninsured claim against his automobile insurance company and was entitled to "full tort" or recovery of pain and suffering. Mr. Kennedy was involved in a car accident when an unknown vehicle swerved into his lane. Because he did not know the identity of the other automobile, he brought an uninsured motorist claim against his own insurance policy. Mr. Kennedy owned three automobiles, a 1997 Ford, 1989 Toyota, and a 1986 Nissan. He had automobile insurance on the Ford and Toyota automobiles, and he had selected the full tort option as provided under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). However, he did not insure his 1986 Nissan. Mr. Kennedy was involved in a car accident while driving the Ford. He suffered injuries and made a claim for benefits to his automobile insurance company. When they would not pay on his claim for his injuries, he hired a Philadelphia lawyer.

The automobile insurance company argued that Mr. Kennedy was subject to limited tort (not able to recover pain and suffering) because one of the automobiles he owned was not insured. The Philadelphia trial court disagreed and stated that Mr. Kennedy was entitled to “full tort” in his claim. The Pennsylvania Superior Court has now just affirmed the Philadelphia Court of Common Pleas, explaining that because Mr. Kennedy was injured in the car that was insured and for which he had chosen full tort, the insurance company was bound by his selection of full tort. Thus, Mr. Kennedy was permitted to recover pain and suffering damages. In this writer’s view, this only makes sense as Mr. Kennedy bought insurance for the car that was involved in the accident and chose “full tort.” However, this case shows how insurance companies will try to find any loophole in a policy to deny claims. Also, this case illustrates the importance of checking your auto policy to make sure you have chosen "full tort" and uninsurance coverage.

A few years ago I received a call from an employee who while working in Philadelphia was injured severely at work, but the employer did not carry workers' compensation insurance. Because the employer had no assets, I unfortunately had to inform this injured employee that he may never recover. There may now be help for those injured in Philadelphia or anywhere in Pennsylvania while at work even if their employer does not carry workers' compensation insurance because of a recent change in the Pennsylvania Workers' Compensation Act.

On November 9, 2006, Governor Rendell signed into law Act 147, formerly House Bill 2738. The amendments to the workers’ compensation Act include:

1) A “resolution hearing” procedure to speed up processing of compromise and release agreements;

2) A “mandatory trial schedule” to be established at the first hearing by a workers’ compensation judge, including mandatory mediation unless that would be “futile”;

3) Added to Section 414 of the Act a provision stating: “when assigning petitions…, the department shall not assign to a particular workers’ compensation judge more than seventy-five per centum of the petitions from a particular county”;

4) An Uninsured Employers Guaranty Fund.

From this writer’s perspective, the largest impact of the law will be the addition of the Uninsured Guaranty Fund. The Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working (in the course of employment) and is disabled (cannot work). In Pennsylvania, all employers are required to carry workers’ compensation insurance. However, some do not in violation of the Pennsylvania Workers’ Compensation Act. Many employees who worked for small businesses could never collect if the employer did not carry workers’ compensation insurance. Under the new law, a fund is created for an injured worker to collect even if the employer has no insurance. This fund is called the “Guaranty Fund” which was created under Act 147 of 2006. Finally, employees who have worked for irresponsible employers that never carried insurance have a remedy!

Many of us have seen the billboards on our way to work in Philadelphia and throughout Pennsylvania which feature a pregnant woman - or a baby - stamped with the words "potential lawsuit." The tagline reads, "To lawyers, all Pennsylvania patients look the same." For many of us who do not practice in the medical malpractice field, these statements are very disturbing as a broad brush attack on the lawyer profession. We have all also heard the many lawyer jokes such as “What do you call 100 lawyers at the bottom of the sea?” I think it is time that lawyers, especially young lawyers stand up for this noble profession and remind the public and ourselves the difference lawyers have made in this country and the world.

Rather than a potential lawsuit, I think when a Philadelphia or Pennsylvania lawyer see a baby, they think of the potential that baby has to grow up and take advantage of all the freedoms and opportunities provided by this country. However, without lawyers, one wonders what future this baby would have. Because of lawyers and judges, that baby will no longer grow up in a country where they will be forced to go to a particular school based upon the color of their skin. If that baby one day is accused of a crime, he or she will have the right to an attorney and right to a jury of his or her peers. Regardless of sex, that baby will someday have the right to vote. When that baby seeks a job someday, he or she will have the right not to be discriminated against because of race, gender, or age. The list of recognized or implemented personal or civil rights because of lawyers is endless.

However, lawyers have not stopped their fight for personal and civil rights with this country. Rather, they see the “potential” a baby has in other countries. The American Bar Association and its members have literally sent thousands of lawyers, professors and judges abroad to help countries write or rewrite their constitutions, reform criminal justice systems, develop environmental regulations and more.

When someone starts out with a joke about what to do with a number of lawyers, I have a response. What do you do with thirty-four lawyers in Philadelphia? You write the greatest governing document in human history, the American Constitution. Of the fifty-five men assembled to write the Constitution, thirty-four were lawyers. Of those thirty-nine who signed the final draft, twenty were lawyers. Putting together a bunch of lawyers has produced some wonderful things.

Unlike any other profession, you will find more lawyers performing community service on school boards, councils, charities, and religious organizations. Lawyers contribute their time and money to political causes. In short, when it comes to public service, no other profession compares.

I am excited to be serving on the Public Image Task Force put together by our president of the Pennsylvania Bar Association, Tom Golden. I think lawyers need to stand up for their profession. I hope all of you will do your part in explaining to your clients, friends, and neighbors all the good things lawyers do. When my two-year old son someday asks his Daddy and Mommy what we do when we go to work, I look forward to telling him that we are lawyers, and lawyers help people. And, I hope to tell him that rather than a potential lawsuit, he is actually viewed as human being that has unlimited potential to do anything, because of the freedoms and liberties that lawyers have fought for.

Printed by permission by Author, Workers’ Compensation Judge Todd B. Seelig

First Printed in the Pennsylvania Bar Association Young Lawyers Division Publication, At Issue, 2003.