Jury Finds Willful Misconduct Bars Compensability in High Exposure Case

F&P attorney Mike Bennett successfully defended a workers’ compensation claim for benefits by convincing a jury that the claimant’s actions amounted to willful misconduct.

The case was tried before the Honorable Dwight Jackson in the Circuit Court for Calvert County on February 13 and 14, 2020. The jury’s decision saved the employer, a treatment facility that provides mental health services exclusively for first responders, considerable exposure due to the nature of the injuries involved in the accident.

The claimant was employed as a nursing assistant and was attempting to gain access to the nurses’ station to assist a patient who had just finished treatment.

The door that normally would have been used to gain access to the station was locked, resulting in the claimant being separated from the station by a barricade that was approximately three feet tall and four feet wide.  The evidence showed that there were numerous options available to the claimant to unlock the door and safely gain access to the station, including three master keys within just a short walk.  Instead of exploring these options, the claimant decided to transverse the barricade with the assistance of the patient, and in the process, ended up with numerous injuries that required multiple surgeries.

Generally speaking, it can be very difficult for employers and insurers to prevail on a willful misconduct defense for a number of reasons.  For starters, there is a statutory presumption that an injured worker did not engage in willful misconduct.  If the defense can overcome this presumption, they must then prove that an accident meets five separate and distinct elements.  If any of those elements fail, so does the entire defense of willful misconduct.

One of the five elements of willful misconduct is that the employer has a rule prohibiting the action that caused the accident. This particular element forced the defense to get creative as the employer did not have an explicit rule against employees climbing over barricades.  Instead, Mike Bennett argued to the jury that there was an implied rule against this specific action.  In order to buttress this position, the defense introduced testimony from witnesses that they collectively have never seen or heard of anyone climbing over a nurses’ station while working in the field.  The jury agreed with Mr. Bennett in convincing fashion, as it took just 15 minutes to reach its verdict.

F&P Spotlight on Associate Patrick Toohey

What’s your favorite thing about working with your clients?
We’re in the business of minimizing risk and saving money for our clients. To that end, a good result is extremely gratifying and our clients aren’t shy about expressing their satisfaction.

What is your favorite aspect about working at F&P?
The comradery. We are all interested in each other’s success.

What’s your favorite restaurant/show/event in Baltimore (city where the person practices)?
Locust Point (“LP”) Steamers. Best crabs in Baltimore.

What’s your proudest accomplishment?
Securing a reversal in my first district court appeal in circuit court.

What do you like to do outside the office?
Play a lot of golf.

What is your all-time favorite city or town and why?
Baltimore, of course. 

Andrew Stephenson is Honored with ACTA Invitation

F&P principal Andrew Stephenson has received the honor of being invited to join the American College of Transportation Attorneys (ACTA). This select group limits membership to only 25 members, comprised of transportation defense lawyers, all serving more than 20 years in the trucking industry. Andrew is a seasoned civil litigator, with a primary focus on defending companies against civil suits involving catastrophic losses. He also defends corporations and individuals in civil matters involving commercial transportation, construction, paratransit, intentional torts, premises, and products liability.

ACTA, a non-profit association, serves as a legal resource to the trucking industry. F&P founding member, Bob Franklin, was also a founding member of ACTA and served until his death in 2013. For more information about ACTA, please visit their website at http://www.actalawgroup.org/.

 

 

 

Associate Tiffany Vrabac Published in VADA Journal

Herndon liability associate, Tiffany Vrabac has been published in the Virginia Association of Defense Attorneys’ (VADA) Journal. Her article, “#BLOG-POST-&-TWEET-AT-YOUR-OWN-RISK” addresses how the ethical obligations and the Rules of Professional Conduct still apply when posting on social media platforms.

To read the entire article, click on the link: 32-1 Blog Post Tweet–Vrabac.

This article originally appeared in the Journal of Civil Litigation, Vol. 32, No. 1 (Spring 2020), a publication of the Virginia Association of Defense Attorneys. It appears here with permission.

F&P’s COVID-19 Advisory Group

The Advisory Group consists of F&P Attorneys Albert B. Randall, Jr., Tamara B. GoorevitzWilliam A. CrawfordSarah S. Lemmert, and John K. Archibald.

We will continue to monitor this fluid situation and stand ready to guide you through these challenges.  We are also hosting a complimentary COVID-19 webinar series, with the next two chapters taking place on March 18 and March 24 at 2pm.

For additional resources please click on the following links:

Centers for Disease Control and Prevention – COVID-19

World Health Organization COVID-19 Updates

US Department of Labor – OSHA: COVID-19

Maryland Business Express – Coronavirus (COVID-19) Information for Businesses

DC Health

Delaware Health and Social Services

Maryland Department of Health

Virginia Department of Health

West Virginia Department of Health and Human Services

F&P Attorneys Continue to Participate in Law School Diversity Programs

F&P associate Vernon Brownlee credits the University of Baltimore’s Fanny Angelos Program for Academic Excellence for helping him achieve his goal of attending law school. Vernon and Adam Shareef, also an associate at F&P, attended a hearing before a Senate panel in support of a bill that would distribute state funds into programs sponsored by Maryland’s historically black colleges and universities. The University of Maryland’s Diversity and Inclusion Scholars Initiative and the University of Baltimore’s Fanny Angelos Program for Academic Excellence would be beneficiaries of this funding.

F&P has been a longtime supporter of Fanny Angelos and believes programs such as these are imperative to achieve better diversity and inclusion efforts in the legal industry.  The firm sponsors its annual gala, which principal Imoh Akpan Co-Chairs.

For more information on Senate Bill 335, click on the link to read the complete article which was first published in the Daily Record on February 12, 2020. Senate bill would help fund diversity programs at law schools – Maryland Daily Record

Winter Welcomes New Employees to F&P

Franklin & Prokopik hired two workers’ compensation associates and two liability associates to join our Baltimore and Newark offices this winter.

Megan Berey joined the Baltimore office as a workers’ comp attorney. Before joining F&P, Megan litigated large volume dockets in the district court as an assistant state’s attorney for Baltimore County. Before working with F&P, she worked full time as a law clerk in the Baltimore County State’s Attorney’s Office while attending law school at night, graduating in three years.

Michael Torrice is the newest member of the Newark liability team. He concentrates his practice in the areas of general liability defense, premises liability, trucking, and transportation defense and insurance coverage. Prior to joining Franklin & Prokopik, Michael Torrice defended employers in workers’ compensation cases before the Industrial Accident Board of the State of Delaware and was part of a litigation team defending federal securities fraud matters before the District of Delaware.

Vernon Brownlee joined the liability team in Baltimore after serving as an Assistant State’s Attorney (ASA) for Prince George’s County, Maryland. There he managed large volume dockets, misdemeanor criminal cases, and select high-profile felony cases. Vernon concentrates his practice primarily in the area of liability defense, representing clients in matters such as accident, injury, and tort claims, and property loss matters.

Marleigh Davis joined the workers’ comp team in Baltimore. She knew she wanted to focus her career in litigation after clerking for the Honorable Lawrence P. Fletcher-Hill in the Circuit Court for Baltimore City.  During law school, Marleigh was an Associate Comments Editor with the University of Baltimore Law Review and a Rule 19-220 Student Attorney in the Juvenile Justice Project clinic.

 

Franklin & Prokopik Announces Promotions for 2020

F&P would like to congratulate our attorneys who have received promotions in 2020. One team member has been promoted to principal and five others have been promoted to counsel. These individuals have consistently demonstrated skills in both the courtroom as well as with their peers and colleagues. They have received accolades within the legal community for their insights and service. Please join F&P in congratulating the following attorneys and thanking them for their dedication to the firm!

New principals and counsel are:

Joshua Hoffman, principal, Herndon

G. Calvin Awkward, III, counsel, Baltimore

Jessica Ayd, counsel, Baltimore

Robert Hunt, counsel, Newark

Heather Rice, counsel, Baltimore

James Temple, III, counsel, Baltimore