I. Employment Litigation Issues.

A Third Circuit Court of Appeals Rules that Whether a Plaintiff Can Perform the Essential Functions of a Position with Reasonable Accommodation is an Issue for the Jury, and a Plaintiff’s Claim is Not Estopped by Receiving Social Security and Long-Term Disability Benefits.

In Turner v. Hershey Chocolate USA, 2006 WL 686991 (3rd Cir. Pa. 03-20-06), the Third Circuit Court of Appeals ruled that the District Court improperly granted summary judgment on behalf of Hershey, when it denied the plaintiff’s Americans With Disabilities Act (“ADA”) claim. The Third Circuit Court held that whether the plaintiff could perform the essential functions of her position with reasonable accommodation is an issue for the jury. The Third Circuit Court further found that the plaintiff was not estopped by her Social Security Disability Insurance (“SSDI”), and long-term disability claims.

In Turner, the plaintiff, Janet Turner began working at Hershey’s plant in August 1985, and during her employment, developed severe back problems, and was forced to undergo surgeries in 1998, 2000 and 2002. When she returned to work in 1999, following a 1998 back operation, Hershey accommodated her new restrictions and assigned her to a “light duty position” as a shaker table inspector on a York peppermint patty line. The shaker table inspectors at that time were assigned to one of three lines, line 7, 8 or 9. Line 7 required standing. Lines 8 and 9 were considered easier. The plaintiff was eventually assigned to line 9. In 2001, Hershey learned that shaker table inspectors had suffered an increased incidence of repetitive stress injuries to their wrists and arms, and therefore, recommended a rotation of the shakers on the three lines. Turner objected to the rotation scheme and refused to work on line 7. Hershey decided that Turner’s inability to work on line 7 prevented her from participating in the rotation system, which they viewed as necessary to prevent injuries to all inspectors. Turner eventually received SSDI benefits.

Initially, the The Third Circuit Court ruled that the granting of the SSDI and long-term disability benefits did not estopp the plaintiff from asserting that she was a qualified individual under the ADA. The key issue of the case was whether the rotation scheme was an essential function to her job, and whether she was given a reasonable accommodation.

The court discussed the law in reference to ADA claims, and stated that, “a disabled employee may establish a prima facie case under the ADA if she shows that she can perform the essential function of the job with reasonable accommodation and that the employer refused to make such an accommodation”. In order to prove she had a prima facie case under the ADA, the plaintiff had to establish that she (1) had a “disability”, (2) she is a “qualified individual”, and (3) she suffered an adverse employment action because of that disability. A “qualified individual” is defined as (1) “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”. Whether a job duty is an “essential function” depends on whether it is “fundamental” to the employment position.

The court held that it was confronted with, not whether the plaintiff could perform the essential functions of her job without reasonable accommodation, since it was clear she could not, but, rather, whether she could perform the essential functions of her job with reasonable accommodation.

Accordingly, the court held that the question of whether the plaintiff could perform the essential functions of her job with reasonable accommodation, was an issue for the jury.

II.Coverage Issues

Court Rules Insurer Must Defend, Possibly Indemnify Parents of Convicted Mass Killer.

In Donegal Mut. Ins. Co. v. Baumhammers, 2006 WL 362537 (Pa. Super. 02-7-06), the Pennsylvania Superior Court ruled that Donegal Mut. Ins. Co. must defend and possibly indemnify the parents of convicted mass murderer, Richard Baumhammers. Baumhammers was out of work and living with his parents in 2000, when he went on a shooting spree, killing five people and seriously injuring another. At the time of the shootings, the Baumhammers had two insurance policies – a homeowner’s policy from Donegal and an umbrella policy from United Services Automobile Association (USAA). Both policies provided indemnity coverage for a claim of suit brought against the insureds for bodily injury caused by “an occurrence” or accident. The Donegal policy had a liability limit of $300,000 for each occurrence.

While the Donegal policy contained an exclusion for injury that is expected or intended by the insureds, the company conceded that it “mistakenly communicated its intentions” to Baumhammers’ parents on the exclusion added to the policy, and did not rely on the amended exclusion in this case. Both insurers argued they had no duty to defend or indemnify Baumhammers or his parents. Donegal argued that Baumhammers’ murders were an intentional act and could not be considered an accident, so there was no coverage. However, the Court found Baumhammers’ parents acted negligently by not taking away his gun or reporting him to mental health authorities. The Court said, “The main thrust of our Pennsylvania case law” led to a finding that negligence leading to intentional acts may be considered an “accident”, which would be covered. The Court also ruled that Baumhammers’ six shootings are distinct, individual occurrences under the policy terms. The Court ruled that USAA did not have to defend or indemnify the Baumhammers because the involved policy contained an enforceable exclusion for intentional and purposeful acts or criminal acts.

III.Product Liability Issues

New Jersey Products Liability Law Controls Accident Suit.

In Borelli v. Everland, 2006 WL 435730 (E.D. Pa., 02-21-06), the two Pennsylvania plaintiffs were driving on Route 49 in Port Norris towards Port Norris, when two horses owned by William Everland ran out into the highway. Plaintiffs suffered serious injuries and filed suit against the horse owner, Everland, for allowing the horse to wander onto the highway. Everland responded to the suit by filing a products’ liability counterclaim against the manufacturer and seller of a solar-powered electric fence, claiming he was never warned that it could be used only in conjunction with a physical fence. Plaintiffs amended their suit to add their own products liability claim. Senior U.S. District Judge Ronald L. Buckwalter found “There is a true conflict between the products liability laws of Pennsylvania and New Jersey”. Under New Jersey Law, products liability claims are governed by statute – the New Jersey products liability act (NJPLA). Unlike the law in Pennsylvania, plaintiffs suing under the NJPLA are not permitted to bring separate claims for negligence and breach of warranty over injuries allegedly caused by defective products. Judge Buckwalter found the facts showed that New Jersey had a greater interest because the injury occurred there and the product was purchased there. Since New Jersey law applied, Everland’s claims for negligence, breach of implied warranty and breach of express warranty, as well as plaintiffs’ negligence claims were dismissed.

IV.Joint and Several Liability Issues

Pennsylvania Legislature Again Passes Joint and Several Liability Reform.

The Pennsylvania House has approved Joint and Several Liability Reform sending a bill to Governor Edward G. Rendell to sign. The bill aims to prevent frivolous lawsuits by barring victims from suing multiple defendants with one lawsuit. Under the current law, victims may sue multiple defendants and be reimbursed for an entire damage award. If a defendant does not have enough money to pay the share apportioned by the Court, then the other defendants must carry that portion of the award. The bill limits joint and several liability to specified circumstances, including where a defendant is found at fault for at least 60 % of the total liability apportioned to all parties. The bill mirrors a joint and several liability reform that passed in the House and Senate in 2002, but later was struck down as unconstitutional on procedural grounds by the Pennsylvania Commonwealth Court. The 2002 Court challenge is based on procedural grounds and how the legislation was passed. The Court never looked at the constitutionality of Joint and Several Liabilty.