Wednesday, May 25, 2022

Pennsylvania Superior Court Upholds Trial Court's Denial of a Defendant's Petition to Open a Default Judgment After Entry of $23 Million Dollar Verdict


In the case of Roy v. Rue, No. 1598 EDA 2021 (Pa. Super. April 12, 2022 Lazarus, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of a Defendant’s Petition to Open and Strike a Default Judgment entered against him by the Plaintiff.

This lawsuit arose out of a fight that occurred at a restaurant that resulted in eventually fatal injuries to the Plaintiff’s decedent. The Plaintiff filed suit against a restaurant and the assailant. The issues in this case pertain to the entry of a default judgment against the assailant.

The restaurant defendant settled out of the case.    

The case eventually went to trial on damages and a verdict was entered against the assailant in an amount in excess of $23 million dollars.

Thereafter, the assailant filed a Petition to Open the Default Judgment. The assailant asserted that he was incarcerated when the trial court held the assessment of damages trial and that he did not appear because he allegedly did not have notice of the trial. The court noted that the docket confirmed that the Prothonotary provided notice to the Defendant of the trial at the Defendant’s home address, at which time the Defendant was in prison.

The Defendant additionally asserted that he was not provided with service of the original process. 

The Defendant also argued that he acted promptly once he learned of the default judgment and that he allegedly had a meritorious defense to the claims in the lawsuit, that being that the Defendant allegedly acted in self-defense.

The Pennsylvania Superior Court ruled that the trial court properly denied the Defendant’s Petition to Open or Strike the Default Judgment where the Defendant failed to show any defects with regards to the return of service of the Complaint, with regards to the 10-Day Notice of Intent to File a Default Judgment, or with respect to the Notice regarding the trial date on the assessment of damages. 

The court additionally found that the Defendant’s Petition was not timely filed.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 26, 2022).


Friday, May 20, 2022

Court Addresses Forum Selection Clause in a Post-Koken UIM Case As Well As the Validity of Allegations of Recklessness



In the case of Coello v. Fitzgerald and Erie Insurance Exchange, No. 7019-CV-2021 (C.P. Monroe Co. Feb. 11, 2022 Zulick, J.), the court addressed issued of proper venue in a post-Koken motor vehicle accident litigation. 

Relative to the Preliminary Objections filed by the UIM carrier Defendant asserting improper venue, the court noted that, although venue is proper in Monroe County under Pa. R.C.P. 2179, which allows for an injured party to bring a civil action against an insurance company/ corporation in a county where that company or corporation regularly conducts business, in this matter, Erie Insurance was relying upon a forum selection clause in the parties’ insurance contract.

Under that forum selection clause, the parties agreed that any suit to enforce the terms of the policy would be filed in the county of the Plaintiff’s legal domicile at the time the suit was filed. The record in this case confirmed that the Plaintiff alleged in his Complaint that he resided in Scranton, Lackawanna County.

The court upheld the forum selection clause and carved out the UIM case and transferred that portion of the case to Lackawanna County but kept the Plaintiff's case against the tortfeasor in Monroe County.

As such, the UIM carrier Defendant’s Preliminary Objections with regards to venue was sustained.

In so ruling, the court found that the Plaintiff’s argument that it would be unreasonable to put him to the expense of securing a medical expert for two (2) separate trials did not outweigh the contract provision on venue.

Judge Arthur L. Zulick
Monroe County



In his Opinion, Judge Arthur L. Zulick of the Monroe County Court of Common Pleas also addressed the tortfeasor Defendant’s demurrer against the Plaintiff’s claims against punitive damages. The tortfeasor Defendant asserted that the Plaintiff failed to allege sufficient facts to support such a claim and that the Plaintiff had only merely alleged that a motor vehicle collision had occurred.

Relative to the allegations of recklessness, Judge Zulick referred to Rule of Civil Procedure 1019(b), which provides that conditions of the mind may be averred generally. The court noted that, under the case of Archbald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), an allegation of recklessness is an allegation as to a condition of the mind which could be averred generally.

As such, the court denied the Defendant’s demurrer to the Plaintiff’s claim for punitive damages and noted that such a decision should be left to the jury in terms of whether the Plaintiff’s case met the burden of proof in this regard.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 12, 2022).


Tuesday, May 17, 2022

UM Bad Faith Claim Dismissed Where No Breach of Contract Claim Present



In the case of Nye v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-01029 (M.D. Pa. March 30, 2022 Wilson, J.), the court addressed a Motion to Dismiss an uninsured motorist claim and bad faith claim.

With regard to the Plaintiff’s pleading of a claim for uninsured motorists benefits in the Complaint, the defense moved to dismiss given that the Plaintiff had failed to plead the identity of the tortfeasor driver and/or whether that driver was in fact uninsured.

The court found that there was sufficient information from which the Plaintiff could have made this determination and included it in the Complaint. As such, this portion of the Motion to Dismiss was granted but the Plaintiff was allowed leave to amend the Complaint to add the missing details.

With regards to the bad faith claim, the court first observed that there must be some predicate claim against the insurance policy even if the bad faith claim is a distinct claim. More specifically, the court stated that “there must be a predicate contract claim in order for a §8371 claim to proceed.” 

The court also noted that, while the predicate claim need not be tried together with the §8371 claim, the predicate cause of action must be ripe in order for a bad faith claim under §8371 to be recognized.

Given that the court had dismissed the breach of contract claim relative to the uninsured motorist claim due to the insufficiency of the pleading on that claim, the court found that the predicate cause of action otherwise required to accompany the §8371 bad faith claim was missing.

As such, the bad faith claim was also dismissed but without prejudice, in light of the court allowing the Plaintiff the right to file an Amended Complaint relative to the breach of contract claim.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog and partner at the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention.

Pennsylvania Superior Court Addresses UIM Coverage Issues Regarding Discrepancies In the Policy Documents



In the case of Hartford Fire Ins. Co. v. Davis, No. 310 MDA 2021 (Pa. Super. May 9, 2022 Olson, J, Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court overturned a trial court’s entry of summary judgment in favor of a carrier in a UIM arbitration matter on issues of whether or not the subject automobile insurance policy had certain UIM coverages available.

This case arose out of a motor vehicle accident that occurred back in 2005. The Plaintiff was injured while operating a vehicle owned by his employer.

The vehicle operated by the Plaintiff was insured by Hartford under a commercial automobile insurance policy. During the annual renewals of the policy up through the time of the Plaintiff’s accident, it has been the practice of the insurance company to obtain a UIM coverage rejection form for each policy term renewal. However, the carrier failed to do so for the policy in question.

At the time of the subject accident, a Pennsylvania UIM coverage endorsement was appended to the subject policy although the policy did not specify any limit of UIM coverage for Pennsylvania.

In entering summary judgment, the trial court found that the UIM policy issued by Hartford for the subject year of the accident did not specify a limit of UIM coverage for Pennsylvania and that, therefore, the coverage limit was $0 and the Pennsylvania UIM endorsement attached to the policy was a nullity. The trial court further held that the employer as effectively waived UIM coverage in Pennsylvania by executing a rejection of UIM protection form a few years before the accident.

On appeal, the Pennsylvania Superior Court found that the trial court erred in finding that the subject policy of insurance issued by the Hartford did not provide for UIM coverage at the time of the accident despite the fact that a UIM coverage endorsement was attached to the policy. The Pennsylvania Superior Court also agreed with the Plaintiff that the trial court had erred in concluding that the rejection of UIM protection form executed by the employer prior to the accident was applicable to the subject policy.

The Superior Court based its decision, in part, on 75 Pa. C.S.A. §1731, which mandates that an insurance company issuing a policy in the Commonwealth of Pennsylvania must provide UM/UIM coverage equal to the bodily injury liability coverage, unless the insured validly rejects UM/UIM coverage or validly requests lower limits pursuant to §1734.

Accordingly, where, as here, the subject policy of insurance provided $2 million dollars in liability coverage at the time of the accident, absent a valid and specific rejection of UIM coverage, the court found that the Pennsylvania UIM coverage limit in this case would also be $2 million dollars. Elsewhere in the Opinion, it was indicated that the Plaintiff had previously secured an Arbitration Award in excess of $2 million dollars on the case presented.

The trial court’s decision was vacated and the case was remanded for additional proceedings consistent with this Opinion.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.


Monday, May 16, 2022

Bad Faith Claim Allowed to Proceed On A Homeowner's Claim From a Fire Loss


In the case of Jaworowski v. Erie Ins. Co., No. 4250-Civil-2020 (C.P. Monroe Co. March 30, 2022 Williamson, J.), the court denied a Motion to Dismiss a Plaintiff’s bad faith claim against the carrier.

This matter arose under a homeowner's policy relative to an alleged fire loss.

According to the Opinion, the carrier claimed that it had legitimate grounds to deny the Plaintiff coverage based upon a lack of residency. The court noted that the evidence in the record made the issue of the Plaintiff’s claimed residency questionable but not free from all doubt.

As such, the court denied the Defendant’s Motion for Partial Summary Judgment.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 10, 2022).

Source of Image:  Photo by Maxim Tajer on www.unsplash.com.