Philadelphia, PA

A Pennsylvania Commonwealth Court majority found that providing reimbursement for treatment prescribed by a physician does not cause the Workers’ Compensation insurer to “manufacture, distribute, or dispense” a controlled substance, and therefore does not violate federal law. The majority then remanded the case to the Workers’ Compensation Judge to determine whether a penalty should be awarded against the employer in favor of the Estate of its now deceased employee.

A recent Third Circuit opinion underscores the need for Pennsylvania businesses and digital marketing firms providing services in the Commonwealth to obtain consent from consumers prior to collecting their data or installing cookies on a browser.

California’s Responsible Beverage Service Training Program Act went into effect on July 1, 2022. It specifically states that any alcohol server or manager who is employed by a licensee beginning on or after July 1, 2022, has 60 calendar days from the date of hire to obtain an alcohol server certification.

The 2022 Liquor Liability Laws, 50-State Survey, addresses the various issues present in this class of business through a review of Dram Shop statutes, where they exist, and common law developments in each of the 50 states and the District of Columbia.

The 2022 Artisan/Construction Defect Law Review addresses certain issues in this class of business by reviewing applicable statutes where they exist in addition to common law developments in each of the 50 states and the District of Columbia.

Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.

The Pennsylvania Supreme Court rejected a restaurateur’s request for it to exercise plenary jurisdiction over its pending coverage action against its insurer and assume authority over all COVID-19 litigation to immediately resolve insurance coverage issues.

With new legislation looming, some observers expect New Jersey to act soon to prevent New York from gaining a first-mover advantage in legalizing adult-use recreational cannabis in the lucrative tri-state market. On the other hand, last year’s optimism proved to be premature and the many predictions of imminent action never came to fruition.

A cannabis startup accused of having “growth hacked” its way to the top by “relentlessly bombarding existing and prospective customers with text … messages without their consent” drives home the point that cannabis businesses, just like any other business, should be vigilant about complying with consumer protection laws that govern advertising. Startups flush with venture capital will be tempting targets to self-styled consumer advocates.

State notification requirements for insurers in the aftermath of catastrophic storms highlight the need for prompt detection of compromised electrical wiring and prompt reporting of such a condition to the insured. If sufficient notice is not given, coverage may remain in effect, leaving the insurer exposed to potentially huge losses from ensuing fires.

A September 2017 decision by the Pennsylvania Superior Court expanded the scope of liability for negligent misrepresentation to include a class of potential defendants far beyond those expressly exposed under a prior ruling of the Commonwealth’s highest court, and emphatically rejected the notion that the liability recognized by the Pennsylvania Supreme Court is limited to the facts of one case.

Under the doctrine of concurrent causation, a loss caused by multiple perils is recoverable when at least one peril is covered under the policy, even if multiple perils are excluded. Conversely, efficient proximate cause permits coverage only when a covered peril is the “leading” or “predominant” cause of the loss. Despite these important differences, which doctrine a jurisdiction employs may be inconsequential or immaterial if the jurisdiction views the doctrine as merely a default rule or if Valued Policy Laws may be invoked.

The sheer number of business interruption claims to come in the wake of Hurricanes Harvey and Irma will prove a monumental challenge for insurers. Understanding the basics of such coverage is critical when evaluating losses and errors and omissions litigation based on the likelihood of unsatisfied expectations of policyholders. 

Since ERISA does not contain a statute of limitations provision, courts generally apply the most analogous state law statutory limitations. However, in 2013, the U.S. Supreme Court held that reasonable contractual limitations periods in ERISA-governed plans are valid and enforceable. Courts have since addressed what event will trigger a contractual or a statutory limitation. Recently, the Fourth Circuit Court of Appeals addressed both scenarios. 

A recent decision by the U.S. Supreme Courtmakes it more difficult for benefit plans to seek reimbursement and recover overpayments, but insurers and self-funded plans are not left without recourse. Amending plan language and acting promptly when made aware of a potential recovery can add viability to the claim.

The Third Circuit said in a recent precedential ruling that a hospital’s plan was not entitled to the church plan exemption because it was not established by a church. Further, the hospital should have been complying with ERISA for the entire time its plan was in existence, which could have significant financial consequences. 

While some South Carolina property owners and businesses may have flood insurance, it is likely many homeowners and businesses impacted by the 2015 thousand-year flood event never anticipated their properties could be flooded. Some estimates say damages will exceed $1 billion.

Now binding law in the Third Circuit, all denial letters must include the plan-imposed suit limitation deadline, if any. Failure to include the deadline will result in application of the most analogous limitations period imposed under state law, which in New Jersey is the six-year statute of limitations applicable to breach of contract actions.

In a recent case, the Eleventh Circuit took a step closer to joining ten other circuits that have refused to recognize ERISA penalty claims against de facto plan administrators.

The Third Circuit has opened the door to fee recoveries in ERISA cases in a way not contemplated by previous law. The court decided that a party can achieve success on the merits without any judicial action and that the defendants’ voluntary payment of interest is sufficient to make the claimants eligible for attorney fees.

The Superior Court of Pennsylvania recently affirmed summary judgment in a case certain to be cited in future asbestos summary judgment cases. The Court clearly stated standards requiring the plaintiff to prove he actually inhaled dust from the defendant's particular products; to produce evidence sufficient to show frequency, regularity and proximity to the asbestos products; and to provide certainty as to the content of the dust.

A recent non-precedential Third Circuit opinion upheld a lower court decision that the absence of a confidentiality agreement can  prevent a physician from obtaining information about fracking chemicals when no actual harm has been alleged. But it leaves the door open to future challenges by those in the health care industry treating patients who are at actual or imminent risk of harm or have actually been harmed by fracking activities.

Despite their best efforts, companies cannot prevent an industrious hacker from finding a way to access their data, but such incidents may not give rise to a cause of action. When a data breach occurs, an individual does not suffer harm, and thus does not have standing to sue, unless the individual alleges actual misuse of the information or that such misuse is imminent.

The U.S. Bureau of Land Management has issued “final” rules governing hydraulic fracturing operations on federal lands and land owned by Indian tribes. It should be emphasized that only a small fraction of hydraulic fracturing activity in the United States takes place in these areas. In addition, the fracking rule-making process presented the bureau with a golden opportunity to grant the fracking opponents’ wish of completely banning fracking operations; yet it declined to do so.

A December 2014 decision by the Pennsylvania Superior Court confirmed the ruling of the Pennsylvania Supreme Court that the “any-exposure theory” of causation in asbestos cases is not allowed in Pennsylvania by holding that an expert must quantify an opinion as to the precise exposure and actual products involved in the case.

In a 2014 case, the Eighth Circuit joined a number of other circuits in recognizing equitable remedies of reformation and surcharge based on a breach of fiduciary duty under ERISA. A claim for supplemental life insurance benefits under the employer’s group policy was denied because the employee failed to submit evidence of insurability as required under the plan. However, in concluding that the plan insurer breached its fiduciary duties, the court relied primarily on the actions and omissions of the employer.

Does the Home Rule Amendment to Ohio’s Constitution permit localities to enact anti-fracking zoning regulations contrary to Ohio’s oil & gas development laws? No, said a majority of the Ohio Supreme Court on February 15, 2015.

In a recent decision, the Fourth Circuit made clear that a defendant faced with a breach of fiduciary duty claim under ERISA is well advised to consider not only whether it may have given inaccurate information to a plan participant or beneficiary but also whether it is a fiduciary that can be held liable for its acts regardless.

The Eastern District of Pennsylvania granted an individual disability insurer summary judgment where the insured based a total disability claim on a work injury that was held to not have occurred by a workers’ compensation court.

The Eastern District of Pennsylvania granted an individual disability insurer summary judgment where the insured based a total disability claim on a work injury that was held to have not occurred by a workers’ compensation court.

Pennsylvania’s Supreme Court struck down as unconstitutional provisions of Act 13 that required municipalities to adopt uniform zoning requirements that could allow drilling in all zoning districts. In so ruling, the court found that the disputed provisions of Article 13 violated the Environmental Rights Amendment in that it removed from Pennsylvania’s municipalities the right to be stewards over natural resources within their own borders.

The term “administrator” is defined in the ERISA statute as “the person specifically so designated by the terms of the instrument under which the plan is operated.” If no one is named plan administrator, it is deemed to be the plan sponsor, which is usually the employer. Based on the specific definition of the term “administrator,” nearly every circuit has refused to recognize “de facto” plan administrators.

The Pennsylvania Supreme Court has concluded that claims for occupational disease that manifest outside the 300-week period prescribed by section 301(c)(2) of the Workers’ Compensation Act do not fall within the purview of the Act, and therefore, that the exclusivity provision of section 303(a) does not apply to preclude an employee from filing a claim against an employer. 

The Pennsylvania Supreme Court recently held that primary responsibility for drug safety rests with the manufacturer, which has superior access to information about its drugs, especially in the post-marketing phase as new risks emerge. The Supreme Court further held that “pharmaceutical companies violate their duty of care if they introduce a drug into the marketplace, or continue a previous tender, with actual or constructive knowledge that a drug is too harmful to be used by anyone.”

In a recent decision, Pennsylvania’s Supreme Court confirmed municipalities’ constitutional right to limit gas drilling activities through local zoning rules and imposed a more structured state decision-making process to grant waivers from setbacks required for certain bodies of water.

As businesses and families that were caught in the path of Hurricane Sandy begin to survey the damage, insurers are feeling the first surge of many claims to come. Now’s the time to confer with Wilson Elser’s knowledgeable and adept insurance attorneys to be certain you’ve got all contingencies covered.

This is the first in a series of alerts designed to provide you with clarity and understanding of the important and significant issues raised by this unprecedented crisis.

The Pennsylvania Supreme Court has amended applicable rules of civil procedure to include e-discovery – expressly rejecting the federal rules in the process. In essence, the Court maintains the current rules of discovery and adds the term “electronically stored information” (ESI) to the list of items a party may request. Commentary to the amended rules adds further insight to the Court's position on how this change should be used, including the application of Pennsylvania’s “proportionality standard.”

A Pennsylvania District Court and the Third Circuit concur that an explanation for failing to provide accurate answers on an application for insurance coverage does not prevent a finding of fraud when the undisputed evidence establishes that the applicant chose to provide an inaccurate response.

Wilson Elser intern from France shares his experiences in the Philadelphia Bar Reporter column "In Their Own Words."

In Midgett v. Washington Group Int'l Long Term Disability Plan, __ F.3d __, 2009 WL 996682 (8th Cir. April 15, 2009), the Eighth Circuit considered the amended ERISA claim regulations in deciding whether a claimant received a "full and fair review" of the denial of benefits. The court ultimately agreed with the Tenth and Eleventh Circuits and concluded that a plan is under no obligation to provide a claimant with copies of reports obtained during the appeal so they may comment on them prior to a final decision.