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Plaintiff Seeks Sanctions Against Defendant for Alleged Breach of High-Low Agreement, in Wake of $25M Verdict

Lawyers in agreement dispute

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The wife of a man who won a nearly $25 million verdict last month has filed for sanctions against one of the defendants, claiming it is violating a court order and failing to live up to a high-low agreement that was entered into before the verdict came down.

Michele Kalinowski, who in late March won a $24.8 million verdict on behalf of her injured husband, Sean Kalinowski, filed a motion for sanctions Monday, claiming that one of the defendants in the case, ABRA Auto Body & Glass, has failed to pay the full $19.4 million it was ordered to pay following the verdict, and has improperly sought to appeal the judgment.

The motion, which was filed by Kenneth Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, said the defendant's decision to pay only $14.9 million flies in the face of language in the high-low agreement barring appeals and goes against the order Philadelphia Court of Common Pleas Judge Lisa Rau entered into earlier this month, which said ABRA Auto Body needed to pay the full amount within 30 days of the jury verdict or the court would enter sanctions.

"By failing to pay plaintiff $4,454,920.56 of the total amount ABRA was under court order to pay, and by taking an appeal despite having waived its appeal rights as set forth in the court order, ABRA has violated the terms of the court's April 9 order," the motion said.

On March 20, a Philadelphia jury awarded the multimillion-dollar verdict to Sean Kalinowski, a roofer who was catastrophically injured in June 2016. According to court papers Kalinowski had been performing roofing work on a building that housed an auto body facility in Aston when he fell through a skylight and landed on a concrete floor more than 20 feet below. Defendant 2626 Market LLC owned the building, and ABRA Auto Body & Glass leased the property.

The verdict, which came after more than a day of jury deliberations and nearly four full weeks of trial before Rau, included findings of 10 percent contributory negligence against Kalinowski, 30 percent liability against 2626 Market and 60 percent liability against ABRA.

According to court transcripts, the high-low agreement entered into before the jury involved numerous stipulations, but generally said that the defendants' excess carrier, Great American Insurance Group, would pay at least $3 million, or would pay any verdict amount between $3 million and $16 million. The agreement also said the award would be paid 30 days after the verdict, and the parties waived their right to appeal. According to the transcript, the agreement also noted there was a coverage dispute regarding 2626 Market.

On April 9, Rau entered an order, saying that 2626 Market needed to pay $3 million pursuant to the settlement agreement, and that, since ABRA had been found 60 percent liable, the company was jointly and severally liable for the total damages, minus 2626 Market's contribution and the 10 percent comparative negligence against Kalinowski. That number came to $19.36 million.

The order also gave the defendants until April 19 to pay the money, but, according to the sanctions motion, on April 16, the carrier sent Kalinowski a check for $14.9 million, representing 60 percent of the $24.8 million initially awarded. The plaintiff returned the check, and the following day, the defendants filed a notice of appeal to the state Superior Court.

The defendants have not yet filed an appellate brief with the Superior Court, outlining their arguments on appeal, but court filings indicate the dispute will focus on the application of joint and several liability to the verdict.

On Monday, Rau issued a letter to the Superior Court prothonotary, saying that the appeal should be quashed because the defendants waived their appellate rights.

The motion seeks $793 per day in interest and $1,220 per day as a sanction, plus costs and attorney fees.

Lamb McErlane attorney Maureen McBride is representing the defendants. She did not return a call for comment Wednesday.

Rothweiler declined to comment beyond the filings.