Tiffany Shrenk

Delaware Personal Injury Lawyer

Tiffany Shrenk

Delaware Personal Injury Lawyer

Car Accident

The Sanctity of Jury Deliberations in Delaware Upholds Plaintiff’s Verdict in Alleged Comparative Negligence Case

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The recent Delaware Superior Court opinion in the case of DeSantis v. Gardiner, N18C-01-304 WCC discusses Delaware’s long standing recognition of the sanctity of jury deliberations.

In the DeSantis case, after a three day jury trial, the jury returned a verdict awarding substantial damages to the Plaintiff. The action brought by the Plaintiff had sought damages from the Defendant for personal injuries caused when the Defendant’s car collided with Plaintiff’s motorcycle. The Plaintiff suffered serious injuries as a result of the collision requiring long periods of in-patient hospital treatment, several hospitalizations, and multiple surgeries. The Defendant however claimed that the Plaintiff was also negligent in a manner that contributed to the cause of the accident. Thus at trial, the defense argued that some degree of fault should be assigned to the Plaintiff, which would then limit or bar Plaintiff’s recovery.

Following the three day trial, the jury returned a verdict finding the Defendant to be 100% at fault for the collision and awarding over one million dollars in damages to the Plaintiff. What happened next though was an intriguing set of events.

The morning after the jury verdict was delivered, one of the jurors contacted the defense attorney and left a voicemail stating her opinion that several of the jurors had not properly understood the jury instructions given to them by the judge and in her opinion five of the jurors felt a degree of fault should have been assigned to the Plaintiff.

As I briefly mentioned above, a degree of fault assigned to a Plaintiff has a significant impact on the Plaintiff’s award. Delaware is a 50/50 comparative negligence state, which means that a Plaintiff may receive an award in a personal injury case even if the Plaintiff was also negligent in contributing toward the personal injures but only if the Plaintiff’s negligence is 50% or less. When the defense argues that the Plaintiff was also negligent in contributing to his injuries, the jury is asked to assign percentages of fault to the Plaintiff and the Defendant. If the jury agrees with the Defendant that the Plaintiff was also at fault, the jury assigns a percentage of fault to the Plaintiff and a percentage of fault to the Defendant, and the Plaintiff’s damages are reduced by the percentage of fault assigned by the jury to the Plaintiff. If the jury assigns a degree of fault to the Plaintiff that is above 50%, Plaintiff does not receive an award.

In the DeSantis case, when the jury delivered their verdict, they assigned 100% fault to the Defendant and no fault to the Plaintiff. This meant the Plaintiff received the entire amount of the damages that the jury attributed to the incident without any reduction. The phone call by the juror to the defense attorney on the day after the verdict was read was to explain that the juror thought five of the jurors believe a degree of fault should have been assigned to the Plaintiff, which would have reduced his recovery. The juror called the defense attorney a second time and also called the Court several times to reiterate her belief that there was a misunderstanding by several of the jurors, including herself, about assigning a degree of fault to the Plaintiff.

Based upon what the juror had relayed, the defense filed a motion for a new trial since the jurors misunderstood the comparative negligence law. The Plaintiff opposed the motion arguing that the issues raised by the juror were “intrinsic to the jury’s deliberations”, and therefore, they could not be considered by the Court. The Court agreed with the Plaintiff’s position and denied the defense’s motion for a new trial.

There is a long standing principle that precludes Delaware courts from inquiring into jury deliberations and recognizes the sanctity of jury deliberations. These principles are recognized in Delaware Rule of Evidence 606, which prohibits a juror from testifying about any statements made during the deliberations or any incident that occurred during deliberations. The statements, incidents, intimidation among jurors, and thought-processes that occur during deliberations are referred to as “intrinsic”, and jurors are prohibited from testifying as to the intrinsic factors.

The rule, however, does not bar a juror from testifying as to extrinsic factors. The extrinsic factors are outside factors that improperly influence a juror and outside prejudicial information told to or shown to jurors. Outside factors can be inquired into by the Court if brought to the Court’s attention.

In the end, the Court found that the juror’s complaints about misunderstanding of the instructions and law was intrinsic to the jury deliberations and “was precisely the type of post-verdict inquiry that Rule 606 expressly prohibits.”

The Court’s opinion in DeSantis also mentions that during the deliberations there were no questions to the Court that signaled any misunderstanding of the jury instructions or law. Once the jury instructions are read to the jury and the jury goes to deliberate, if questions arise regarding the the law or evidence, the jury can write a question, which will be given to the Judge. The Judge will discuss the question with the attorneys, and the Judge will respond to the jury’s questions and then the jury will be sent back to deliberate more. If there had been questions among some of the jurors regarding the instructions or applicable law, a written question to the Court would have been the appropriate step to address the questions.

Dram Shop and Social Host Laws in Delaware and Pennsylvania: Is the bartender or host responsible for serving the intoxicated driver?

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Dram shop acts are laws that impose civil liability on a bar or bartender who over serves an intoxicated customer when that customer later injures someone, such as in a drunk driving accident. Unlike many states, Delaware does not have a dram shop act, and the Delaware courts have resisted requests to impose a common law dram shop cause of action.

In 1981, the Delaware Supreme Court decided in the case of Wright v. Moffitt, 437 A.2d 554 (Del. 1981) that a patron does not have a cause of action against a bar owner for injuries the patron suffers as a result of his own intoxication. The reason for the Court’s holding was the lack of a dram shop statute and the lack of a common law dram shop rule.

In 1988, the Delaware Supreme found in DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988) very limited liability against social hosts of a party where a minor was served alcohol and later injured a parking valet working at the party. The DiOssi Court found that liability could be imposed in this situation where the social hosts had a special duty to the injured person since he was a business invitee, and there was evidence that the social hosts knew minors were being served and also driving.

But the DiOssi holding did not expand upon the imposition of liability against servers. In the later cases of Samson v. Smith, 560 A.2d 1024 (Del. 1989) and Oakes v. Megaw, 565 A.2d 914 (Del. 1989), the Court ruled that third parties injured by intoxicated drivers could not hold the bar owners who had served the intoxicated drivers civilly responsible for their injuries. Somewhat surprising is the fact that the intoxicated driver in the Oakes case was a minor, and yet without a dram shop act passed by the General Assembly there was no legal basis to impose civil liability on the establishment who had served the intoxicated minor. The social hosts would still be exposed to criminal liability for violating a criminal statute that prohibits serving alcohol to minors, but the criminal statute is not the basis for civil liability.

The most recent Delaware Supreme Court opinion on the issue was in 2007 in the case of Shea v. Matassa, 918 A.2d 1090 (Del. 2007). Tragically, in the Shea case, an intoxicated motorist who had been served alcohol at a private residence and a bar caused a fatal car crash. The wife of the third party who had died in the collision brought a lawsuit against the private homeowner and the bar owner who had served alcohol to the intoxicated driver. Again, the claims against the social guests were rejected. Without a dram shop law enacted by the General Assembly, there is no legal basis for the Delaware courts to impose civil liability against social hosts, and the person who consumes the alcohol and causes the injury is the sole proximate cause of the injury.

Pennsylvania, like the majority of states, has a dram shop act that imposes civil liability if a bar serves a visibly intoxicated patron and the violation is the proximate cause of the injuries. Pennsylvania’s dram shop act allows for the recovery by or on behalf of the intoxicated patron who was over served by a liquor licensee while visibly intoxicated. It also allows for third parties who are injured in collisions caused by a drunk driver to recover against the bar who over served the intoxicated individual.

Additionally, Pennsylvania courts allow for the imposition of civil liability against social hosts for injuries suffered as a result of serving alcohol to underage minors, see Congini by Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983), but liability will not be imposed against social hosts for injuries arising from serving to adult guests. Klein v. Raysigner, 470 A.2d 507 (Pa. 1983).

Since dram shop and social host laws vary from state to state, if you are injured as a result of a drunk driving incident or by an intoxicated person, it is important to consult with a personal injury attorney who will evaluate your case and inform you of the civil claims available to you to obtain fair compensation for your injuries.

Can DelDOT be Held Liable for Accidents Caused by Unsafe Road Conditions?

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The Delaware Department of Transportation (“DelDOT”) is a State agency with the statutory responsibility of caring, managing, and controlling the public roadways and highways in Delaware.  Within the past year, the issue of safety of Delaware’s Route 1 (SR 1) has been a focus in the local news after recent fatal cross-over and run-off accidents have occurred along the coastal roadway to the Delaware beaches.  When tragic accidents such as these occur, the question of whether barriers should have been in place to prevent such accidents are always discussed and can lead to the question of whether DelDOT can be held accountable in a civil case for injuries and damages caused by unsafe road conditions.

The answer to this question begins with a quick review of Delaware’s Constitution of 1897.  Article 1, Section 9 of the Delaware State Constitution provides for sovereign immunity for tort actions brought against the State and employees of the State in their official capacities.  The Delaware Supreme Court has stated that “sovereign immunity is an absolute bar to liability claims against the State of Delaware unless waived by the General Assembly.  Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (citing Wilmington Housing Auth. v. Williamson, 228 A.2d 182, 786 (Del. 1967)).  To overcome the State’s immunity from civil liability, you must prove that the State waived immunity and that the claim is not otherwise barred by the State Tort Claims Act, which would allow a claim against a State agency or department when meeting certain criteria.  Based upon a review of prior cases, DelDOT has not waived its sovereign immunity protection because, without the purchase of liability insurance, the analysis does not extend past the sovereign immunity issues. Without the waiver of sovereign immunity, recourse against DelDOT is not an option when roadway conditions cause injuries.

Although DelDOT enjoys immunity protection, the constitutional immunity granted to state agencies does not extend to third-party contractors engaged by DelDOT.  While DelDOT still oversees roadway construction projects, they are often performed by third-party contractors who have entered into a contract with DelDOT to complete certain roadway projects.  These contractors have contracts with DelDOT that include plans as to how the roadway work is going to be performed, the types of warning signs that the contractor will post in advance of the construction work to warn oncoming drivers of the roadway conditions, and traffic plans for lane or road closures.  Although there is a duty imposed on a motorist to give full attention to the operation of her vehicle and to operate her vehicle with regard for the road, weather, and traffic conditions, there is also a duty upon the contractor to adhere to nationally accepted standards when preparing and implementing traffic plans and installing traffic control devices.  If the third-party contractor performs the roadway work in a manner that is unsafe such that it causes an accident, the injured party can pursue recovery against the contractor who performed work and had control over the work site.

If you are injured in a motor vehicle collision that you believe was caused by roadway conditions, you should consult with a personal injury attorney who will perform the necessary legal analysis to determine what recourse is available to you and where civil liability will be found.

What is Mediation?: What to expect when your Delaware case has been scheduled for a mediation conference

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The first thing to understand about a mediation is that a mediation conference will only bring a resolution to your case if all the parties agree to the resolution.  A mediator will not decide the case.  The mediator’s job is to act as a go-between; he or she will spend time with you and your attorney separate from the opposing party, bringing demands and offers from one party to the other.  The mediator may offer his or her opinion as to certain strengths or weaknesses of your case, but the mediator will not make a finding as to who wins or who loses a case.  Ultimately, if all parties agree to the terms of a settlement, then the mediator will document the parties’ agreement.  However, if the parties cannot agree upon the terms of a settlement, the mediation will end unsuccessfully, and the case proceeds with litigation to a trial.

The decision regarding who will act as the mediator for a case is normally determined by the attorneys.  Once it is determined that a case will go to mediation, the attorneys discuss names of potential mediators, and typically agree amongst themselves who will mediate the case.  The mediator may be a retired judge, an active judge or another judicial officer, or an attorney experienced in the handling of your type of case.  In the rare event that the attorneys cannot come to an agreement as to who will act as the mediator, the attorneys can request the judge presiding over their case to select the mediator.  Once the mediator has been selected, the attorneys will contact them and provide sufficient information regarding the identities of the parties and the attorneys to determine that there is no conflict of interest with the chosen mediator.  Assuming the conflicts check clears, the case will then be scheduled for the mediation conference.

Prior to the mediation, your attorney will prepare a confidential mediation statement which is a narrative report sent to the mediator for the purpose of educating the mediator about the facts and issues in your case.  This document is confidential in that it is provided only to the mediator, and it does not have to be provided to the opposing attorney.  The mediation statement typically addresses the following topics: the facts of the case, the plaintiff’s claims, liability defenses, the injuries or damages alleged by the plaintiff, specific strengths and weaknesses of the case, the status of settlement discussions, and settlement position.  Depending upon the case, exhibits may also be provided by your attorney to the mediator.  For example, if there are photographs, videos, or other documents that will likely be introduced at trial, the attorney may choose to provide such information to the mediator so that the mediator has a full understanding of how the case will be presented to the judge or jury.  The actual mediation conference is somewhat informal in that witnesses are not called to testify and you will not be asked to testify.  What the mediator knows and understands about the case and what evidence would be presented at a trial is learned from reading the mediation statements that are provided by the parties’ attorneys.

The mediation conference is typically held at the mediator’s office but may also be held at one of the attorney’s offices or may also take place at a conference room at the courthouse, particularly if the mediator is a judge or other judicial officer.  Anyone who is a party to the litigation must attend the mediation conference.  Often clients may want to bring a spouse or other family member to the mediation.  You should discuss this with your attorney ahead of time so that the attorney can make the mediator and another attorney aware that someone else will be accompanying you to the mediation.

Once you arrive at the location of the mediation, you will be with your attorney throughout the duration of the mediation conference.  The first thing the mediator will do is circulate the mediation agreement, which you will be asked to review and sign.  This document explains that the mediation is confidential; anything said to the mediator is confidential and in the event the mediation is unsuccessful, neither party can call the mediator to testify regarding what was said at the mediation.

Each mediator has his or her own style regarding how to conduct the mediation, but my experience has been that after the mediation agreement is signed, the mediator will separate the parties into different rooms, and then the mediator will move back and forth between the rooms to speak with the parties.  This can be a long process, taking several hours.  The mediation will end once the parties reach an agreement to resolve their case or when it is determined that the parties have come to an impasse and are unable to agree to a resolution.

It is very important to understand that if an agreement is reached at the mediation and the parties leave the mediation after agreeing that they have come to terms with a resolution of their case, the agreement is binding.  You cannot later say that you changed your mind and that you no longer agree to the terms of the settlement that you agreed to at the mediation.  If that happens, the other side can file a motion to enforce the settlement agreement, which could result in a hearing where your attorney and the mediator are called as witnesses to say whether or not you agreed to the terms of the settlement at the mediation conference.  Only your words and actions will be considered in determining whether you agreed to the terms of the settlement, so it is important to communicate with your attorney and the mediator during the mediation conference regarding any questions or doubts you may have about the settlement terms before you agree to them verbally or in writing.

Mediation can be an effective process to facilitate a resolution to a long contentious legal battle and bring about an outcome that is within the control of the parties.

Delaware’s New Insurance Disclosure Law

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By Tiffany M. Shrenk, Esquire–

insurance-delaware_ID 83063133 © creativecommonsstockphotos | Dreamstime.comDelaware Personal Injury Attorneys now have an additional tool in their arsenal in handling and negotiating clients’ injury claims thanks to the new insurance disclosure law signed by the Governor this month.

The new disclosure law, codified at 21 Del. C. § 2907, applies to motor vehicle accident cases where a claim for personal injuries is made against a motor vehicle insurer.  Prior to the new law, there was no requirement that an insurance company discloses its policy limits before the initiation of a lawsuit.  That meant that when you filed your complaint, you did not know whether the defendant had the statutory minimum amount of coverage or had opted to higher limits.  It was only after a case was initiated with the court that an insurance company was required to inform the attorney or injured individual of the amount of coverage available to compensate the injured party for his bodily injuries.

Under the new law, in order to obtain the disclosure of policy limits, the attorney must send a written request to the insurance carrier providing the date of the motor vehicle collision, the name and last known address of the at-fault person, a copy of the police report, and the claim number.  Additionally, the attorney must forward the claimant’s medical records, medical bills, and lost wage documentation supporting the client’s injuries and damages.  If the amount of the medical expenses and/or lost wages evidenced by the documentation totals at least $12,500, the insurance carrier is required to respond within thirty (30) days of receipt of the written request and provide the amount of coverage available under the policy.

The policy limits disclosure received by the insurance company is required to be kept confidential.  The statute provides that the written disclosure of bodily injury limits is confidential and “available” only to the claimant, the attorney, and the attorney’s personnel.   21 Del. C. § 2907(g).  The law also provides that the request can be made directly by the claimant if he/she is not represented by an attorney, but the claimant would still be required to provide the medical records, medical bills, and/or lost wages supporting the injury claim.

The original bill was introduced to the General Assembly early in the spring of this year and was sponsored by Representative Trey Charles Paradee and Senator David P. Sokola.  The legislation went into effect as of September 4, 2018, the date it was signed into law.  The new law is anticipated to reduce the number of lawsuits filed as a result of motor vehicle collisions.  It can also be expected that the new law will assist attorneys in resolving their clients’ cases in a more prompt manner since the insurance company will be obligated to review the documentation and respond with the limits disclosure within the thirty-day deadline.

Legislative Update: Delaware’s Personal Injury Statute – Senate Bill 161’s Proposal for a PIP Payment Schedule

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Currently awaiting consideration by the Banking, Business and Insurance Committee in the Delaware State Senate is Senate Bill 161. Introduced to the General Assembly on March 20, 2018, Senate Bill 161 would drastically change the way medical providers are compensated when treating patients who have been injured in motor vehicle accidents in Delaware.

Under the current law, there is no fee schedule for medical providers to follow when submitting bills for treatment rendered to accident victims under the patient’s Personal Injury Protection (“PIP”) claim. When a doctor treats someone covered by PIP, the doctor may bill according to his/her own fee schedule and expect to be reimbursed at 100%.

Under Senate Bill 161, a medical provider can no longer expect reimbursement at 100% of his/her own fee schedule and instead limits the provider to receiving only the charges permissible under the fee schedules established by the Workers’ Compensation Oversight Panel governing compensation for providers treating workers’ compensation claimants. If the bill becomes law, the provider is prohibited from demanding or requesting any payment in excess of the rate approved under the Workers Compensation fee schedule and mandates that the insurance company is obligated to report to the Division of Professional Regulation any pattern of excessive charges or treatment by the provider.

The Act does permit an insurance company to enter into a separate agreement with a medical provider to establish a fee schedule for medical services to govern reimbursement to the provider for treatment under a PIP claim. In the event a separate provider agreement did exist between the provider and insurance company, the provider would receive compensation for medical services according to the contractual agreement between the provider and insurance company and not according to the fee schedule established by the Workers’ Compensation Oversight Panel. While the bill would require payment in accordance with the fee schedules applicable to workers’ compensation claims, other requirements of the workers’ compensation system, such as provider certification, are not required.

Senate Bill 161 is sponsored by Senator Brian Bushweller and Representative Trey Paradee, with nine additional co-sponsors, and reportedly was developed with the insight of the Delaware Insurance Commissioner Trinidad Navarro. The proponents of the bill contend that allowing providers to bill according to their own individual fee schedules with the expectation to be reimbursed at 100% has resulted in excessive medical charges that quickly exhaust the patient’s PIP coverage. A strong opposition to the bill has been voiced by medical providers and trial lawyers who assert that the bill will limit a patient’s ability to receive medical treatment.

Discussions of the need for a PIP fee schedule have been ongoing for many years as automobile carriers have been declining to reimburse providers’ bills at 100% claiming that providers are engaging in patterns of overcharging and excessive treatment. The current statutory minimum PIP coverage established by law is $15,000 per person and $30,000 per occurrence, but although the statutory minimum may seem sufficiently high, the available coverage depletes rapidly when compensation is expected at 100% of the provider’s fee schedule and providers, at least in the eyes of the insurers, are billing at rates that are deemed “unreasonable.” The current PIP law requires that insurers pay medical expenses that are “reasonable and necessary,” and thus, allows an insurance company to deny full reimbursement of a medical bill that the carrier has deemed “unreasonable.” Disputes between insurance companies and medical providers as to the reasonableness of the amount charged have been ongoing for several decades. In 1994, the State of Delaware Department of Insurance issued Auto Bulletin No. 10 to address automobile insurers’ refusal to pay providers the amount charged basing the denial of the bill on the carrier’s determination that the amount charged was “unreasonable.” Where the full amount of the provider’s bill is not paid by the carrier, balance billing to the client of the unpaid amount may occur, which then leads to legal action against the carrier either in the form of an Automobile Arbitration before the Delaware Insurance Department or an action filed in one of the state courts seeking payment of the bill by PIP carrier.

Whether Senate Bill 161 will be passed to amend the PIP payment system remains to be seen, but it is certainly a major area of concern for practitioners and medical providers of the state, and its progression through the General Assembly should be closely monitored.

Personal Injury Attorney - Tiffany Shrenk Tiffany is an associate attorney at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania.  She joined MacElree Harvey in the summer of 2016 and spends her time in the Delaware office located in the Village of Centreville and in the Kennett Square office.

If you have been injured in an automobile accident, contact Delaware car accident lawyer Tiffany M. Shrenk at 302-654-4454 or tshrenk@macelree.com.