The Attorneys at Dugan Brinkmann Maginnis and Pace have represented clients in a wide variety of casualty defense matters. The list below reflects not just the success DBMP has achieved for their clients, but also the variety and complexity of cases.

AUTOMOBILE NEGLIGENCE
DBMP recently obtained dismissal of all claims as a sanction for plaintiffs walking out of a court ordered independent medical examination. During the medical examination, an issue arose as to whether the doctor was entitled to have an assistant present during the actual physical examination. This particular doctor had a history with the plaintiff�s attorney and wanted to have a nurse present when the examination occurred. The plaintiff�s attorney protested. The doctor refused to continue the examination. The plaintiff�s attorney then instructed his client to leave. We filed a motion to compel the completion of the medical examination. The Court ordered that the examination should be completed within thirty days or plaintiff would be precluded from presenting any evidence at time of trial. More than a year transpired from the date of the Order until the matter was called for trial. During that year we attempted to be as accommodating as we could be to get the examination scheduled. However, plaintiff�s counsel refused to cooperate. When the matter was called for trial, we moved for a non pros of plaintiff�s claims based on the previouslyentered discovery order. The Court granted our motion. Plaintiff filed an appeal to the Superior Court. The appeal was denied. The petition to the Supreme Court for allowance of appeal was denied.


PRODUCTS LIABILITY
DBMP obtained a defense verdict on the behalf of Columbia Machine in a products liability case. Plaintiff was injured while working in a concrete block manufacturing plant. Plaintiff alleged an automatic transfer system known as a Trac-a-Rac, which moved concrete block automatically throughout the plant, injured his foot when a wheel of a car of the Trac-a-Rac system contacted his leg. In response to a motion for summary judgment, plaintiff changed his theory and location of injury to several feet away at the location of the forks of the subject machine. The dispute over the location of the accident was vigorously disputed by the parties at trial. The jury concluded that while the system was defective, the defect was not a substantial factor in plaintiff�s injury. Plaintiff had stated a pretrial demand in excess of one million dollars. (Plaintiff appealed the verdict to the Superior Court arguing that the judge should not have provided a charge on voluntary assumption of the risk to the jury. The Superior Court reversed the jury verdict. The case then settled favorably for the defense in part because the original trial produced a defense verdict.)


DBMP obtained a defense verdict on behalf of a leading soft drink bottler in a case where plaintiff claimed that the release valve on a CO2 canister in a seafood restaurant spontaneously opened due to excess pressure in the CO2 canister. The restaurant personnel were not sufficiently knowledgeable as to significance of the release valve and urged all restaurant patrons to leave the restaurant in fear that the CO2 canister would explode. Plaintiff was injured when she slipped and fell as she was exiting the restaurant. A mat in the exit of the restaurant had become saturated with water due to inclement weather on the day of the incident.Plaintiff sued the restaurant and the supplier of the CO2 canister. Mr. Pace successfully argued under the case of Azzarello v. Black Bros., that the judge should remove the plaintiff�s product liability theory from the jury�s consideration as the plaintiff had not established that the product was in any manner defective. The release valve on the CO2 canister performed as expected. Plaintiff�s theory that the CO2 supplier should have sufficiently trained restaurant personnel as to what will happen when the CO2 canister valve opens was a proper theory under Pennsylvania Negligence Law, but not product liability law. The jury, considering only plaintiff�s negligence theory returned a verdict in favor of the defendant within thirty minutes. Plaintiff had stated a pretrial demand of one million dollars.

DBMP obtained dismissal of Reyco Industries, Inc. in a matter entitled Childs v. Reyco Industries, Inc., in the Court of Common Pleas, Lehigh County. Plaintiff-decedent Anna Childs, an infant, sustained a fatal head injury when a leaf spring, which allegedly fractured and disengaged from the suspension of a tractor trailer, penetrated the windshield of the plaintiff-decedent�s vehicle and struck the decedent in the head. Our client, Reyco Industries, Inc., was the manufacturer of the suspension system of the subject tractor trailer. Plaintiffs proceeded under the theories of negligence and strict products liability. We obtained dismissal of this case by successfully arguing that there was no evidence of any negligence on the part of Reyco Industries, Inc.; that there was no defect found with the suspension system; and there was no evidence that Reyco Industries, Inc. had manufactured the subject leaf spring.

DBMP obtained summary judgment on behalf of the manufacturer of an industrial sander in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs brought an action on behalf of the estate of their son who was electrocuted while using an industrial floor sander. The sander alleged to have been involved in the electrocution was a modified hybrid assembly of parts from two different sanders which were manufactured nearly 40 years apart. The chassis of the sander was most likely manufactured in the 1950's. As originally manufactured, this chassis held a two horsepower motor. The older sander was purchased as a used machine by the decedent�s employer. In the mid to late 1980's, the employer purchased a new machine. Shortly after it was placed in service, two workmen dropped the newer machine diminishing its ability to sand floors. Because of the substantial financial investment in the new machine, the employer decided to remove the four horse power motor from the newer macine and place it on the chassis of the machine manufactured in the 1950's. In order to make this motor operate, the three wire connector from the four horse power motor had to be modified to plug into a two wire connector on the handle of the chassis. As a result of this electrical modification, this new hybrid sander had a propensity to blow the 30 amp fuses which were contained within the handle assembly. Rather than replace the fuses, an employee decided to take copper wires and jump across the fuses so that the machine could operate. In addition, on the date of the accident, the sander was connected to power through a series of extension cords. One of the extension cords had the ground prong cut, defeating the grounding protection provided to the sander. Plaintiffs� son was killed when he backed into a metal radiator. The back of his knee was exposed because he was working in shorts. His hand was touching the metal part of the handle of the sander which was energized due to the modifications an abuse of the sander by plaintiffs employer.

Ultimately, summary judgment was obtained based on an attack of the opinions of plaintiffs� technical expert using the recent Supreme Court decision of Kumho Tire Company v. Carmichael, 119 S. Ct. 1167 (1999). After the motions for summary judgment were filed, the trial judge determined that an issue had been raised as to the admissibility of the expert opinion of plaintiffs� technical expert. The judge ordered a �Daubert� hearing to determine whether plaintiffs� liability expert�s testimony was sufficiently reliable to be permitted into evidence. In the course of the �Daubert� hearing, the plaintiffs were provided the opportunity to present the testimony of their liability expert as if at trial. Thereafter, the defendants were provided the opportunity to cross examine the expert. Through cross examination it was revealed that plaintiffs� electrical engineer had significant gaps in his conclusions as to what caused the electrocution accident. While a respected and qualified electrical engineer, plaintiffs expert could not provide an expert opinion which suggested that any defect of the machine was the cause of plaintiff�s death, as opposed to other potential causes for the electrocution accident, including the conduct of the decedent�s employer in the modification of the sander and the poor safety practices in the operation of the sanding equipment.


PREMISES LIABILITY
DBMP successfully obtained summary judgment on behalf of Comcast Spectacor involving injuries received by a plaintiff at a Philadelphia Flyers playoff hockey game in May, 1998. The plaintiff, a 20 year season ticket holder of the Flyers, sustained personal injuries when he slipped on a spilled beverage during a Flyers� overtime playoff loss. Suit was brought in Philadelphia County alleging personal injuries including, but not limited to torn cartiledge of the knee requiring a possible knee replacement. Plaintiff sought half a million dollars. The Court of Common Pleas granted Spectacor�s Motion for Summary Judgment because there was no constructive or actual notice of the spilled beverage on the walkway. The Superior Court affirmed the trial court�s decision.


INSURANCE COVERAGE
DBMP obtained summary judgment in favor of an attorney alleged to have failed to communicate a demand to a client in the case of Builder�s Square v. Saraco, 1996 U.S. Dist. LEXIS 19444 (E.D. Pa Civ. Action No. 94-4116). The plaintiff could not prove the essential claim of causation where the evidence established that the injured plaintiff would not have agreed to settle for an amount less than the ultimate verdict at trial. Plaintiff had stated a pretrial demand of 3.25 million dollars plus interest and attorneys fees.


BREACH OF CONTRACT
DBMP obtained summary judgment in the United States District Court for the Eastern District of Pennsylvania in a case involving a breach of contract claim alleging property damage in excess of $300,000.00.Plaintiffs asserted a property insurance claim against their homeowner carrier resulting from the misapplication of a widely used termiticide. We argued that the claim was barred by the one year suit limitation clause contained within the insurance policy. Plaintiffs contended that under Pennsylvania law, a carrier could not rely on this defense if the carrier engaged in bad faith contact. The Court held that because there was no causal connection between the defendant�s alleged bad faith conduct and the failure to file suit, plaintiffs could not rely upon a Pennsylvania Superior Court case in which the conduct of the insurance company resulted in the improper arrest of its insured, directly preventing him from filing suit.


FRAUD
DBMP was successful in recovering monies paid to insureds and costs incurred in the investigation of two separate cases where insurance fraud was found. In one case, the insured immediately returned the entire amount of the insurance payment and in the other, where the fraud was uncovered before the claim was paid, we recovered over $20,000.00 in investigation costs (expert investigations and examination under oath transcript) and counsel fees. Pursuant to the Pennsylvania Insurance Statute, 18 Pa.C.S.A. �4117, an insurer is entitled to recover reasonable investigatory expenses, costs of suit and counsel fees if an insured engages in fraud. Treble damages are recoverable if the insured has engaged in a pattern of violating the act.

DBMP has been successful in recovering monies in several cases where our clients have been defrauded. In one case, we represented an international corporation who purchased a local business. With the assistance of a Certified Fraud Examiner, we were able to uncover widespread accounting irregularities which had been used to conceal the true value of the business and we were able to collect close to $1 million on behalf of our client.In another case where we were able to prove that the insured had fraudulently concealed two prior fires at the time of his insurance application, a jury in Lackawanna County returned a verdict in favor of our client. The insured suffered a loss of $200,000 when his property burned down for the third time. Although he insisted he had disclosed the two prior fires at the time of the application, the jury concluded he was not telling the truth. To void a policy based on fraud, the carrier must prove by the higher burden of �clear and convincing evidence� that the insured made representations he knew to be false and that had the truth been told to the carrier, it would have never agreed to write the policy.


WRONGFUL USE OF CIVIL PROCEEDINGS
DBMP obtained summary judgment on behalf of a defendant involving a claim of �wrongful use of civil proceedings.� The underlying litigation commenced in 1989 when the defendant in the wrongful use of civil proceedings action obtained a confessed judgment against the plaintiff. Ultimately, the 1989 litigation was resolved by a voluntary discontinuance. Accordingly, the issue in the wrongful use of civil proceedings action was whether such an action could be maintained where the prior action was terminated by voluntary discontinuance. We successfully argued that, in order to maintain an action for wrongful use of civil proceedings, the plaintiff must establish that the prior litigation resulted in a final termination in favor of the person against whom the proceedings were brought. The facts developed at trial revealed that plaintiff could not prove that the prior litigation had resulted in a favorable termination where the matter had been �settled, discontinued and ended with prejudice.� The matter was appealed to the Superior Court and was recently argued. The decision of the Superior Court is still pending.


LEGAL MALPRACTICE
DBMP recently obtained dismissal through preliminary objections on behalf of a law firm accused by one of its clients of malpractice. Plaintiff alleged that the law firm, as well as various attorneys failed to properly represent her in a wrongful use of civil proceedings law suit filed against her. The underlying action was settled by the insurance carrier of plaintiff (defendant in the underlying action), who was an insured under an C.G.L. insurance policy. The case was dismissed by the Court of Common Pleas of Philadelphia County on preliminary objections which asserted that plaintiff had failed to state a claim for legal malpractice in that she could prove no damages. Accordingly, our clients were dismissed from the law suit. Plaintiff has appealed the result to the Superior Court of Pennsylvania.


COVENANT NOT TO COMPETE
DBMP successfully enforced the provisions of a covenant not to compete by obtaining injunctive relief on behalf of a corporate client when one of its former employees started a new business in competition with our client, after his resignation. While covenants not to compete can be difficult to enforce if not narrowly tailored in time and geographical scope, the court agreed with our contention that specific language in the covenant was enforceable because the covenant was automatically triggered if the employee was ever convicted of criminal conduct. In this case, the employee in question did in fact have such a conviction and as a result, was precluded from operating a competing business.


CIVIL PROCEDURE
DBMP recently obtained dismissal of an action in the United States District Court for the Eastern District of Pennsylvania arguing that there was not diversity of citizenship among the parties for jurisdiction to exist in that court. In the underlying action, plaintiff was the executor of the estate of a deceased resident of South Carolina. He brought the action in the Eastern District of Pennsylvania. A number of the defendants that were sued in this medical malpractice action were also residents of South Carolina. Although the executor was a Pennsylvania resident, we argued that for purposes of determining whether the Court had jurisdiction, 28 U.S.C. �1332 provides that in determining citizenship for diversity purposes �the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same state of the decedent.�Since the decedent was a resident of South Carolina and a number of the defendants were residents of South Carolina, there could be no diversity of citizenship which would allow jurisdiction in the U.S. District Court for the Eastern District of Pennsylvania.