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Defense Newsletter November 6, 2018

Attorney Spotlight: Franklin C. Love

Franklin C. Love joined the firm in April 2018 and has been practicing law since 2002.  Frank primarily focuses his practice on insurance defense matters, including premises liability, construction accidents, motor vehicle accidents, product liability and construction defect.  Frank has successfully defended numerous insurance carriers and self-insured companies throughout his career and has an exceptional reputation with his clients, colleagues and judges.  Frank is known and appreciated by clients for his ability to efficiently defend their interests and resolving cases quickly and in their best interests. READ MORE

ALERT: MTK Food Services v. Sirius Am. Inc. and Choice of Law Conflict between NJ & PA

Many lawyers practice in more than one state and we obviously need to keep straight which rules apply in which states to properly represent our clients.  However, the New Jersey courts are currently grappling with an issue of which state’s statute of limitations to apply to attorneys who are practicing in New Jersey and Pennsylvania where the limitations periods are quite different.  The statute of limitations for cases asserting negligence against a lawyer in Pennsylvania is two years, while in New Jersey a plaintiff has six years to file a case for negligence against a lawyer. Recently, in MTK Food Servs. v. Sirius Am. Inc., 2018 N.J. Super. Lexis 101, *10 (NJ. Sup. Ct. 2018), the New Jersey Superior Court presided over a case that asked the question, if an attorney is sued for legal malpractice but is dual-licensed to practice in both PA and NJ, which state’s statute of limitations should apply? Using the substantial interest test provided in Section 142 of the Second Restatement, the court ruled in favor of the defendants and held that due to the overwhelming nexus of facts based in Pennsylvania, it had an equally overwhelming substantial interest to have its statute of limitations apply. READ MORE


ALERT: Snap Removals by Forum Defendants

In a precedential decision filed on August 22, 2018, the United States Court of Appeals for the Third Circuit provided some clarity on the practice which has become known in recent years as the “Snap Removal.”  As a matter of background, it is common knowledge and practice to remove cases to federal court which are originally filed in state court and involve claims exceeding $75,000 where the parties are fully diverse in citizenship.  Simply put, where a plaintiff and a defendant are citizens of different states, the federal courts have diversity jurisdiction to hear the case when the matter in controversy exceeds that threshold.  The exception to this rule is the “forum defendant” prohibition upon diversity jurisdiction codified by 28 U.S.C. §1441. READ MORE


Don’t Discover Too Late That Your Investigator’s Notes and Statements May Be Discoverable

Simply because an individual is hired in anticipation of litigation does not lead to a blanket protection of all materials drafted by that individual. This is a common misconception. There is a large gap in the protection for materials drafted by an attorney versus a representative for a party. This was made even clearer by a recent ruling stemming from the ongoing litigation arising out of the alleged abuse within the Archdiocese of Philadelphia. READ MORE

Jason Kopena Obtains Dismissal of Vehicle Leasing Company By Summary Judgment

Jason Kopena represented a vehicle leasing company in a matter brought in the Philadelphia Court of Common Pleas arising out of a motor vehicle collision involving a truck it leased to the Co-Defendant driver and the Plaintiff’s vehicle.  Specifically, the Plaintiff and the client’s lessee were traveling in the same direction on I-676 when they both attempted to merge into the center lane simultaneously causing them to sideswipe each other.  The Plaintiff, who was pregnant at the time of the collision, alleged to have suffered significant injuries, including multiple lumbar and cervical disc herniations and chronic radiculopathy, and conveyed a six-figure demand at the settlement conference. READ MORE

ALERT: Don’t Forget to Speak Out About Confidentiality Clauses

Confidentiality as a term of a settlement seems to be becoming a real sticking point in negotiations these days. Confidentiality clauses or agreements can be utilized in a number of different contexts including employment contracts, commercial transactions, and, most notably here, settlement agreements. Often the amount of the settlement as well as its mere existence is sensitive information that the defendant does not want to be made public. While there are arguments on both sides for the merits of a confidentiality clause in a settlement agreement or release, issues can arise when the confidentiality clause is written into the settlement agreement without negotiation or consideration. READ MORE

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Firm Highlights

Zarwin Baum's 6th Annual PHILAlympics Raises Over $48,000 for Philadelphia's Ronald McDonald House 

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