Representative Matters

Successful in appeals brought against fitness company client challenging validity and enforceability of exculpatory clause in membership agreement.

Successful in appeal challenging the entry of summary judgment in favor of client store owner where the plaintiff argued that the store's spoliation of post-accident photographs of the scene of the accident precluded the entry of summary judgment in the store's favor.

Successfully defended client construction companies in appeals challenging the application of the statutory employer defense in obtaining summary judgment in personal injury actions brought by subcontractor employees.

Instrumental in successful appeal to the Pennsylvania Supreme Court, challenging the plaintiffs' theory that “every breath” of asbestos is a substantial contributing factor in causing an asbestos-related disease, in an asbestos case involving friction exposures.

Successful in appeal against client premises owner challenging the entry of summary judgment in its favor based on the “superior knowledge” exception to the general rule regarding premises liability.

Greene and Heim Win Appeal of Judgment on the Pleadings in Duty of Care Claim

Nigel Greene (Of Counsel-Philadelphia) and Angela Heim (Of Counsel-Philadelphia) prevailed in the Superior Court of Pennsylvania on the plaintiff's appeal of the dismissal of Wilson Elser’s client, a Philadelphia bus tour company, based on a motion for judgment on the pleadings. The plaintiff alleged that our client allowed her to exit a tour vehicle at a location where a depressed roadway grate created a tripping hazard. At the trial court level, Nigel successfully argued that the company had no legal responsibility for the condition of the roadway and owed no duty to the plaintiff regarding that condition. The court concurred, granting Nigel’s motion for judgment on the pleadings and denying the plaintiff’s motion for reconsideration. On appeal, Angela wrote the client’s brief, and the Superior Court affirmed the trial court's decision, holding that the complaint failed to allege a legally cognizable breach of duty –even if all allegations were taken as true.

Nigel A. Greene and Angela M. Heim

Bachrach & Heim Obtain Win at the Tenth Circuit in ERISA Case

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) represented a group long-term disability insurer in an appeal related to the denial of benefits. As a result of the plaintiff’s administrative appeal and before the lawsuit was filed, the client reversed the claim denial. The plaintiff still filed a lawsuit in the U.S. District Court, Western District of Oklahoma seeking attorney’s fees for the appeal. The plaintiff also challenged the client’s reduction of benefits under the policy based on her receipt of social security benefits, claiming financial hardship. The district court granted the defendant’s motion to dismiss the complaint for failure to state a claim, which was appealed to the Tenth Circuit. In a published decision, the Court of Appeals affirmed the judgment in our client’s favor. The Tenth Circuit joined seven other circuits in concluding that fees under ERISA’s fee-shifting statute are unavailable for pre-litigation proceedings. The court also rejected the plaintiff’s “backdoor route” seeking fees as equitable relief. As for the plaintiff’s claim related to the social security offset, the Tenth Circuit held that there was no need to consider the merits of it because she failed to exhaust her administrative remedies as courts have required under ERISA, the claim was time-barred, and the argument was waived because it was not pursued in the district court. Finally, the Court of Appeals rejected the claim that the plaintiff was entitled to equitable relief because our client failed to provide documents to her. Because she did not allege any separate harm related to this conduct, the court agreed with the district court that she was not entitled to any relief. The Tenth Circuit concluded its decision affirming the judgment of the district court by stating that “Plaintiff is receiving all the benefits to which her policy entitles her.”

Joshua Bachrach and Angela M. Heim

Bachrach and Heim Achieve Reversal of Judgment in Death Benefits Case

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) convinced the U.S. Court of Appeals for the Eleventh Circuit to reverse the judgment of the Southern District of Florida against our firm insurer client. The plaintiffs submitted a claim for $500,000 in accidental death benefits following the disappearance and presumed death of their father while mountain climbing in Pakistan. The district court concluded that because there was no evidence that the insured committed suicide, the denial of benefits was arbitrary and capricious under ERISA. In a published decision, the Eleventh Circuit reversed and remanded for entry of judgment in favor of our client. In doing so, the Eleventh Circuit adopted the Wickman test, which is used in seven other circuits for deciding whether a loss is an accident. Under this test, a court asks “whether a reasonable person, with background and characteristics similar to the insured, would have viewed [injury or death] as highly likely to occur as a result of the insured’s intentional conduct.” Here, the insured, a medical doctor, attempted to ascend a major peak solo after his climbing partner, a certified climbing instructor, concluded that it was too dangerous due to hidden crevasses and black ice that broke off and offered no grip. Based on these facts, the appellate court concluded that “[a] reasonable mountain climber likely would have expected a higher risk of injury or death from a summit attempt on an already dangerous winter climb.” The Eleventh Circuit rejected the claimants’ argument that the burden should shift to the insurer to prove there is no coverage when the actual cause of death is unknown. The appellate court also rejected the claimant’s argument that death while mountain climbing should be considered an accident because there is no mountain climbing exclusion in the policy. Accordingly, the Eleventh Circuit reversed the district court judgment and directed the district court to enter judgment in favor of our insurer client.

Angela M. Heim and Joshua Bachrach

Tatarka, Helfrik, Heim and Helgadottir Secure Summary Judgment for Appliance Distributor in Subrogation Suit

Gregg Tatarka (Partner-White Plains, NY), Kristi Buchholz Helfrick (Of Counsel-Philadelphia), Angela Heim (Of Counsel-Philadelphia) and Mal Helgadottir (Associate-White Plains, NY) obtained summary judgment in the United States District Court, Eastern District of Pennsylvania for Wilson Elser’s client, a consumer product and appliance distributor. The plaintiff in this subrogation recovery lawsuit, stemming from a residential house fire, alleges the fire was caused by a defective clothes dryer or the installation of the dryer. Gregg, Kristi, Angela, and Mal argued that the plaintiff presented no evidence establishing that our client placed the dryer into the marketplace in a defective condition or that our client failed to adequately warn of the hazards associated with the installation and use of the dryer. The court granted summary judgment in favor of our client on strict liability, negligence, breach of warranty and breach of contract causes of action.

Gregg A. Tatarka, Kristi Buchholz Helfrick and Angela M. Heim

Angela M. Heim