Walter F. Kawalec, III

Significant Representative Matters: Obtained summary judgment on behalf of an obstetrician in a medical malpractice action. The plaintiff alleged that our client did not obtain the requisite informed consent from our client to undergo a trial of labor after having two prior cesarean section deliveries ('TOLAC x2'). The court found that the plaintiff's lack of informed consent claim was without foundation as she had an awareness of the risks of TOLAC x2. Rather, the court found that her claim was premised on the assertion that the physician performing the TOLAC x2 failed to convert the TOLAC to a C-section quickly enough when complications arose. The court held that as matter of law our client had no obligation to discuss the risk that the doctor in the delivery room may wait too long to pivot to a C-section, which was the actual cause of the plaintiff's alleged harm.; Successfully defended a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first, when the doors began to close. She alleged injuries occurring when the right door struck her arm, and when she used her left arm and left side of her body to slow the doors from closing while she leapt into the elevator.; She sued our clients and the company hired to maintain the elevator, but was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff could not establish the third element of the doctrine: that the injury did not result from the plaintiff's own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants' favor.; Successfully argued to the New Jersey Supreme Court that the grant of a new trial by the Appellate Division in medical malpractice action was erroneous, as the plaintiff failed to object to the matter at trial and could not establish plain error.; Successfully argued to the US District Court and Third Circuit Court of Appeals that a municipalities decision close a property to the public during the removal of a significant amount of buried military ordinance did not constitute a constitutional violation or takings.; Successfully argued that the represented municipality enacted a valid regulatory ordinance and not an improper licensing ordinance notwithstanding the use of the term 'license' in the ordinance.; Successfully briefed arbitration argument and achieved a defense result in multi-million dollar binding arbitration in construction defect case.; Successfully persuaded the Appellate Division to reinstate multi-million dollar complaint dismissed in the Law Division.; Successfully argued for the reversal of a dismissal of the insurance carrier's fraud complaint, which clarified the operation of the entire controversy doctrine in New Jersey.; Successfully argued that a minor deviation on the form for rejecting the stacked limits for UIM coverage was not enough to vitiate the policy-holder's rejection of stacked coverage.; Successfully argued that a trial court committed reversible error when, after the Appellate Division found the verdict to be excessive and remanded the case for remittitur, remitted the verdict by one cent.; Successfully argued that parties who were found guilty of criminal tax evasion were estopped from denying their contributory negligence in a civil suit against their accountant, stemming from the preparation of those income tax returns.; Successfully argued that the term 'advertising injury' in policy was limited to claims arising out of the misappropriation of advertising ideas or style of doing business.; Successfully argued that a plaintiff who was successful against a carrier's policyholder has no claim against the carrier for the amount of the self-insured retention of the policyholder.; Representative Cases: T.L. v. Goldberg, N.J., A-11-18 (N.J. 2019); Cona v. Tp. of Wash., 456 N.J. Super. 197, 201 (N.J. App. Div. 2018); Estate of Brust v. ACF Industries, LLC, 443 N.J. Super. 103 (N.J. App. Div. 2015); Bermudez v. Kessler Institute for Rehabilitation, 439 N.J. Super. 45 (N.J. App. Div. 2015); Nat'l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57 (3d Cir. 2013); Manahawkin Convalescent v. O'Neill, 217 N.J. 99 (N.J. 2014); EEOC v. Geo Group, Inc., 616 F.3d 265 (3rd Cir. 2010); Biber Partnership, P.C. v. Diamond Hill Joint Venture, LLC, 404 N.J. Super. 96 (App. Div. 2008); Allstate New Jersey Ins. Co. v. Cherry Hill Pain & Rehab. Institute, 389 N.J. Super. 130 (App.Div 2006); Marran v. Marran, 376 F.3d 143 (3d Cir. 2004); Vosk v. Encompass Ins. Co., 851 A.2d 162 (Pa. Super. 2004); Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184 (Pa. Super. 2003); Tomaino v. Burman, 364 N.J. Super. 224 (App. Div. 2003); Green Machine v. Zurich-American Ins. Co., 313 F.3d 837 (3d Cir. 2002); Hohns v. Gain, 806 A.2d 16 (Pa. Super. 2002); Kleban v. National Union Fire Insurance Co., 771 A.2d 39 (Pa. Super. 2001); Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000); Published Works: 'Reconsidering Reconsideration,' Defense Digest, Vol. 27, No. 5, December 2021; 'Walters v. YMCA, Putting Some Limitations on Stelluti v. Casapenn,' Defense Digest, Vol. 20, No. 4, December 2014; 'De Facto Appeals Eliminate Federal Jurisdiction,' Defense Digest, Vol. 10, No. 4, 2004; 'Pennsylvania Superior Court Rejects Request To Void Stacked Coverage,' Defense Digest, Vol. 10, No. 3, 2004; ''Advertising Injury' in the Third Circuit: A Frog Switch and a Green Machine,' Defense Digest, Vol. 9, No. 1, 2003; 'An Injury Is Not An 'Injury' If The Pain Is Non-Compensable,' Defense Digest, Vol. 8, No. 2, 2002; 'Superior Court, S.I.R.'s and the Direct Action Statute: Contracts Rule, Penna. Bar Ass'n, Civil Litigation Newsletter,' orig. published in the Defense Digest, 2002; 'Pennsylvania Appellate News,' Defense Digest, Vol. 7, No. 1, 2001; 'Appellate Courts Refine Pennsylvania Settlement Law,' Defense Digest, Vol. 6, No.1, 2000; 'Pennsylvania Appellate News,' Defense Digest, Vol. 5, No. 4, 1999