him, his injury had worsened and caused him a loss of earnings. Cardone Industries
was not willing to pay. The employer moved to dismiss the petition, because
Dorvilus had not received disability for two years.
Dorvilus argued that his petition was well within the three-year deadline,
but the employer argued that Dorvilus was never entitled to any wage loss
compensation. He received disability compensation for his injury, but the courts
revoked the award of wage-loss compensation.
“[Dorvilus] proved a work injury, but he did not prove that it caused a disability.
He cannot now seek reinstatement after the three-year statute of limitations has
run, based upon his collection of compensation payments reversed on appeal. For
these reasons, we affirm the Board,” wrote the judge.
SCORECARD: Wilner Dorvilus’s benefits will not be reinstated. Cardone Industries
will not have to continue to pay on the injured worker’s disability compensation.
TAKEAWAY: Long-lasting claims may face more than one court hearing. Keeping
an accurate record of each ruling can work in favor of the insurer if a claimant
tries to challenge a former ruling.
NEGLIGENCE SUIT RESULTS IN SPLIT DECISION
Dorel juvenile group, inc. manufactured a faulty car seat that, when involved in a crash, caused a child to be permanently disabled. The parents filed suit.
Schiff Hardin, LLP represented Dorel in the suit against the parents and was
the primary contact for Dorel’s excess insurer, Ironshore Europe DAC.
Ironshore was concerned that the case might result in an award or settlement in
excess of $6 million, which is when
the excess carrier’s policy would
kick in. According to Ironshore,
Schiff seemed optimistic. They told
Ironshore the trial was going “pretty
well” among other affirmative
sentiments that predicted a positive
Yet, Dorel was hit with a $34
Ironshore immediately sued
Schiff for negligent misrepresentation, blindsided by the court’s decision. The
insurer claimed that Schiff falsely “predicted the future” and made Dorel’s trial
seem less pressing an issue than it was.
Additionally, Ironshore also alleged Schiff withheld critical information
regarding the developments of the lawsuit, which led the insurer to believe its
excess policy was not at risk.
Schiff filed to dismiss Ironshore’s claims. Schiff claimed that it had attorney
INSURER MUST PAY FOR HAIL STORM DAMAGE
immunity under Texas law, which states that attorneys are allowed “to advise their
clients and interpose any defense or supposed defense, without making themselves
liable for damages.”
The judge reviewing the case said, “Even if [Schiff’s statements during
trial] were the sort of misrepresentations that could give rise to liability ...
[Ironshore] has not alleged facts showing that it would have been reasonable
for Ironshore to rely on Schiff’s assessment that trial ‘was fine’ or that it ‘went
pretty well’ in determining whether the jury might award a particular sum of
In regards to omission, however, “Ironshore has alleged that statements
made by Schiff were either misleading when made or became misleading based
on a failure to disclose subsequent developments. This is adequate to state a
claim for negligent misrepresentation.” Ironshore’s suit was allowed to proceed.
A hail storm pelted apartment complex grand reserve one wintry March morning. Wind and hail stones wreaked havoc on the 55-building complex. Nine months later, when the complex was able to
understand the full scope of the damage done, it filed a claim with its insurer.
Property-Owners Insurance Co. then spent the next seven months investigating
the claim. In the end, the insurer decided to cover $159,000 for damages done to the
roof and an additional $46,700 in depreciation costs once repairs were made.
Grand Reserve retained an
independent adjustor named Brian
Dansby, who estimated the complex
sustained at least $1.3 million in
damages. Property-Owners offered
$26,700 for wind and hail damage but
refused to pay any more for damages
done to the complex buildings’ roofs.
Grand Reserve sued Property-Owners, stating that the insurer’s
payments thus far had been
“extremely disproportionate” to the total amount of actual loss the complex faced.
At trial, the jury rendered a $552,000 verdict for the complex.
Property-Owners filed an appeal. It claimed that Dansby was inaccurate in his
assessment of the damages done to the complex’s buildings. The insurer also called
into question the validity of the adjustor’s qualifications and methodology during
his assessment of damages.
According to Property-Owners, the initial trial abused its discretion when it
The appellate court did not agree:
allowed Dansby to testify. The court had not acted as the “gatekeeper to ensure that
speculative and unreliable opinions do not reach the jury.”
In addition to the faulty testimony, Property-Owners said, the complex had failed
to introduce sufficient evidence of the damages done by the hail storm to its facilities.
“Property-Owners argues that Dansby offered ‘at best’ speculative evidence of
damages, but its attacks on Dansby’s credibility and the accuracy of his estimate are
misplaced because ‘we have stressed’ that ‘[i]t is the jury’s task — not [the court’s]
— to weigh conflicting evidence and inferences, and determine the credibility of
witnesses,’ ” the court said.
Further, the court reminded Property-Owners that the adjustor in question had
been in the business for 26 years and performed more than 1,000 roof assessments
in his career. The court ruled in favor of Grand Reserve.
SCORECARD: Property-Owners Insurance Co. will cover up to $552,000 in
repairs to Grand Reserve’s roofs, which were damaged in a hail storm.
TAKEAWAY: If an insurer does not believe it should have to pay for damages
to its insured’s property, it is best practice to write exclusions into the policy
before a claim is brought forth. Otherwise, any ancillary argument against
payment might not hold up in court.
WORKER CAN’T PETITION FOR COMP REINSTATEMENT
In 2009, worker wilner dorvilus filed a workers’ comp claim petition alleging he sustained a work-related injury while packing machine parts onto a cart. While packing his cart, another cart hit him in his lower back,
which left him with a lumbosacral strain and sprain.
The Pennsylvania Workers’ Compensation Judge granted the claim petition,
calling for medical and disability compensation from the worker’s employer,
Dorvilus’s employer appealed to the state’s Workers’ Compensation Appeal
Board, which affirmed the judge’s assessment but reversed the award of disability
benefits. Dorvilus petitioned for review, but the court affirmed the board’s decision.
In 2013, Cardone Industries filed a termination petition that stated Dorvilus’s
injury had fully recovered, but was denied the petition because Dorvilus was able to
provide enough evidence that he needed continued medical treatment.
On July 21, 2013, Dorvilus received his final disability compensation payment.
Then, two years later, Dorvilus filed for a reinstatement petition. According to
SCORECARD: The one claim stating Schiff provided negligent
misrepresentation in regards to predicting the future was thrown out.
However, the court determined negligent misrepresentation partially stands,
because Schiff failed to disclose important information during Dorel’s trial.
TAKEAWAY: Insurers that don’t want to get hit with an unexpected bill should
be clear upfront on their expectations for communication with counsel.