Rawle’s Reports, December 2014: Pennsylvania, Construction—Defense Award
PENNSYLVANIA: Construction—Defense Award
by Daniel J. Rucket
Daniel J. Rucket, a partner in the Philadelphia office of Rawle & Henderson LLP, received a defense award at a binding arbitration in a construction accident case venued in Philadelphia County. On September 5, 2010, experienced carpenter Jerry Kessler was working alone and using a Ridgid Heavy Duty 10-inch portable table saw to install flooring at a hair salon in Philadelphia. As Kessler used the saw, he cut and severed several fingers on his left hand.
Our client, Wardlaw Fence, had been retained to install a hardwood floor at the salon. Wardlaw Fence owner Kahlil Wardlaw purchased the new saw from Home Depot at the beginning of the project. Wardlaw assembled the saw at the salon and used it for several days without experiencing any problems with it. The saw and all of its components, including the blade guard, the instruction manual, and the box for the saw, remained at the salon during the entire course of the project.
Wardlaw Fence hired Kessler, who had approximately 35 years of carpentry experience, to stain the floor. On the date of the incident, Kessler insisted on cutting several small pieces of wood to complete the installation of the floor before proceeding to stain it. Wardlaw instructed Kessler to use a miter saw on site for this purpose before Wardlaw left the job site. The blade guard was on the Ridgid saw, covering the blade, when Wardlaw left Kessler at the salon.
According to Mr. Kessler, there was no blade guard in place on the saw when he arrived that morning. Kessler claimed to have looked for the blade guard for 15 minutes and to have called Wardlaw when he could not find it. Wardlaw denied receiving any call about the allegedly missing blade guard. After allegedly failing in his quest to find the blade guard, Kessler proceeded to use the saw without the blade guard in place. Kessler testified at deposition that he looked at the first and second pages of the instruction manual and looked at the warning labels on the saw. One label conspicuously stated “WARNING” and instructed users to keep the blade guard in place and their hands away from the blade.
Kessler admitted at deposition that he used table saws without the blade guard many times, estimating that he had used the blade guard on table saws less than half the time he used them during his 35-year carrier as a carpenter. Kessler claimed that he made 30 to 40 cuts that day with the saw. He did not have any problems with the saw, except for a little “play” in it, causing some of his cuts not to be exact. There were no kickbacks of the boards, and the rip fence used to help guide the saw through the blade did not move.
The accident occurred when Kessler intended to rip a board to install under a radiator. He claimed that he adjusted the rip fence and locked it in place. Kessler alleged that as he began guiding the board, using his left hand to stabilize the board and using a push stick in his right hand to guide the board forward, the rip fence suddenly “flew off” the saw, landing on the floor. Kessler lost his balance and the blade dragged the board and his left hand into the saw blade, severing two of his fingers and damaging a third. Kessler called Wardlaw to inform him of the accident. Wardlaw returned to the salon and observed the rip fence securely in place on the saw and the blade guard lying on the floor nearby.
Kessler underwent one surgery to repair his hand at Thomas Jefferson University Hospital. He had several follow-up visits at the Philadelphia Hand Center, followed by a program of self-directed physical therapy. Kessler also claimed to have continuing neuropathic pain in his left hand.
Due to limited insurance coverage and questionable liability, the parties agreed to a binding arbitration. The arbitration was held on June 3, with Kessler and Wardlaw testifying. Kessler contented at the arbitration that the blade guard was missing and that the rip fence moved because Wardlaw had not properly tightened the adjusting nut that secured the rip fence to the rear rail of the saw.
We argued that there was no evidence of any negligence on the part of Wardlaw Fence. All of the component pieces of the saw, including the blade guard and the rip fence, were properly assembled. Wardlaw properly tightened the adjusting nut, as confirmed by expert inspection of the saw. Wardlaw used the saw for several days without the rip fence moving. The blade guard was in place over the blade when Wardlaw left the salon. We contended that there was no duty on the part of Wardlaw Fence to train Kessler, an independent contractor, about using the saw with the blade guard and ensuring that the rip fence was locked in place. We argued that Kessler, not Wardlaw, removed the blade guard.
We brought the saw to the arbitration and demonstrated that it was not possible for the rip fence to fly off if locked. If the rip fence moved, and flew completely off the saw as claimed by Kessler, it was due to Kessler not locking it in place, not the adjusting nut at the rear of the rip fence as claimed by his liability expert. We argued that Kessler’s own comparative negligence precluded his recovery. After hearing almost a full day of testimony and argument at the arbitration, the arbitrator found in favor of Wardlaw Fence.
Jerry Kessler v. Wardlaw Fence, LLC., et al, CCP, Phila. County, PA, February Term, 2012, No. 02934
Daniel J. Rucket concentrates his practice in general casualty defense litigation, including construction site accidents, premises liability, catastrophic injury, construction defects, products liability, stucco home water infiltration claims, motor vehicle accidents, subrogation defense, and general negligence. He graduated from the William & Mary Law School in 1993 and subsequently clerked for the Honorable Albert R. Subers in the Montgomery County Court of Common Pleas. Dan is admitted to practice in Pennsylvania, the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania, and the Third Circuit Court of Appeals. He has been selected as a Pennsylvania Super Lawyer every year since 2010. He was selected as a Pennsylvania Rising Star in 2005, 2006 and 2007.
Dan can be reached directly at: (215) 575-4217 • firstname.lastname@example.org
WORKERS’ COMPENSATION WEBINARS
Workers’ compensation partners Claudio J. DiPaolo and Zachary M. Rubinich will present the Lorman Education Services webinar Work-Related Stress Claims: Overview, the Law and Strategies for Defense on January 7, 2015. They will focus on how companies can protect themselves from workplace stress claims, one of the fastest growing segments of the workers’ compensation system. The live webinar will address many issues that arise when handling a work-related stress claim, including legal burdens of proof, various types of stress claims, and available benefits. The webinar will also offer an overview of this issue while assisting workers’ compensation departments in handling the defense of these claims to reduce or eliminate costs.
In addition, Zach Rubinich will present a webinar on Handling Complex Workplace Injury Claims for Clear Law Institute on December 17, 2014. This webinar will focus on the evaluation, litigation, exposure reduction and settlement for various types of complex workplace injuries, including injuries to the spine, upper extremities, foot and ankle as well as mild to moderate brain injuries. Zach will discuss basic anatomy, diagnostic testing, medical management and treatment options for workplace injuries. There will be a focus on selection, preparation and testimony of medical expert witnesses. Additional issues such as return to work programs, trial tactics, evidence, and ethical considerations will also be covered. The webinar will also highlight evaluation, negotiation and settlement of complex workers’ compensation claims. The webinar is designed to give an overview to workers’ compensation attorneys, risk managers, insurance claims professionals and human resource department members in order to improve the handling and defense of these complex claims while reducing costs.
Claudio J. DiPaolo is Chair of Rawle & Henderson’s Workers’ Compensation Section. He has practiced insurance defense litigation for nearly 20 years, with a concentration in workers’ compensation matters. He has defended workers’ compensation matters on behalf of self-insured corporations, insurance carriers, third-party administrators and various political entities. He has also handled a wide variety of matters, including employment, commercial motor vehicle, products liability, premises liability, insurance coverage, errors and omissions, and medical malpractice. He has drafted hundreds of administrative law decisions involving adjudicated workers’ compensation matters and assisted in the editing of Pennsylvania Workers’ Compensation: Law and Practice. Claudio has presented to clients throughout the country on various workers’ compensation topics, including the interplay between workers’ compensation and other laws, and its effects on business enterprise. He earned his J.D. from the Delaware campus of the Widener University School of Law and studied art history and political science at Duquesne University.
Claudio can be reached directly at: (215) 575-4343 • email@example.com
Zach Rubinich is a partner in the Philadelphia office of Rawle & Henderson LLP. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law. Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court. He routinely counsels employers, insurance carriers and third party administrators on claims management, workplace safety, return-to-work programs, employment practices and risk management. He was recently selected as a member of the American Bar Association’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee for 2014-2015. Zach is rated AV Preeminent by Martindale-Hubbell. He has been selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014. He earned his J.D. degree from Widener University School of Law and a B.A. degree in political science and government from Lycoming College.
Zach can be reached directly at: ( 215) 575-4340 • firstname.lastname@example.org
AV PREEMINENT LAWYERS
Rawle & Henderson LLP is pleased to announce that three partners have achieved Martindale-Hubbell’s® AV Preeminent® rating for the first time: John C. McMeekin II, Julie Nord Friedman, and Brett A. Wolfson. This is the highest rating given by Martindale-Hubbell’s® Peer Review Ratings™ system. An AV Preeminent rating demonstrates that a lawyer’s peers rank him or her at the highest level of professional excellence. The rating is the result of evaluations of lawyers by other members of the bar and the judiciary in the U.S. and Canada. AV Preeminent attorneys have achieved a very high general ethical standards rating and a legal ability numerical rating.
John C. McMeekin II represents clients as local, national and trial counsel in environmental, toxic and mass torts product and related class actions, products liability, insurance coverage and aviation litigation. He graduated magna cum laude from the University of Baltimore School of Law. John is admitted to practice in Pennsylvania, New Jersey and Maryland and related U.S. District Courts. He has been published in professional and law review journals on a variety of topics related to toxic tort and environmental litigation. His significant cases can be found in the BNA Law Reports and Law 360. He is a past Chair of the ABA TIPS Toxic Tort & Environmental Law Committee and International Law Committee, Chair of the Philadelphia Bar Association Environmental and Toxic Tort Law Committee, and serves as Revenue Officer and a member of the ABA TIPS Council. He is a member of the firm’s Executive Committee and Chair of the Aviation practice group.
John can be reached directly at: (215) 575-4324 • email@example.com
Julie Nord Friedman concentrates her practice on the defense of manufacturers, suppliers and contractors in mass and toxic tort litigation, with an emphasis on asbestos litigation. Her clients range from Fortune 500 companies to regional contractors and suppliers. She is a National Coordinating Counsel for one client and she also acts as trial counsel in the defense of claims in mass tort and toxic tort litigation and regularly handles matters for multiple clients in Pennsylvania and West Virginia. Julie is active in the Defense Research Institute. She earned her J.D. in 1995 from the University of Pittsburgh School of Law and her B.A. in 1992 from the American University in Washington, D.C.
Julie can be reached directly at: (412)261-5709 • firstname.lastname@example.org
Brett A. Wolfson focuses his practice on catastrophic injury and/or death cases involving products, construction/industrial/workplace, commercial motor vehicle, medical professional and premises liability. He serves as a Judge Pro Tem for the Dispute Resolution Center of the Philadelphia Court of Common Pleas. Brett volunteers for the Support Center for Child Advocates. He earned his J.D. from Rutgers University School of Law and his B.A. in Philosophy from West Chester University. He has also served under two Philadelphia Common Pleas Court Judges, as a law clerk to the Honorable Joseph D. O’Keefe while he was Supervising Judge of the Complex Litigation Center and the Honorable Sandra Mazer Moss as a Team Leader for a major jury program.
Brett can be reached directly at: (215) 575-4255 • email@example.com