Friday, April 17, 2015

AGENDA FOR TORT TALK EXPO 2015 ANNOUNCED




TORT TALK EXPO 2015

Thursday, September 24, 2015

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA 

(3 Substantive, 1 Ethics Credit [to be requested])
 

Door Prizes - Vendor Giveaways - Raffle Prizes 
 
 
 
AGENDA:
 
 
[Registration 11:30 am - 12 noon]

 

12:00 pm - 1:00 pm - "Lessons from Forrest Gump"

A TORT TALK AUTO LAW UPDATE

by Daniel E.  Cummins, Esq. FOLEY, COMERFORD & CUMMINS 

 

1:00 pm - 2:00 pm – CIVIL LITIGATION UPDATE

by Melissa A. Scartelli, Esq. SCARTELLI AND OLSZEWSKI 

 

BREAK 2:00 pm – 2:15 pm

  

  2:15 pm - 3:15 pm - MEDICAL HOUR

 Dr. Sheryl Oleski – Low Back Pain Overview

NORTHEASTERN REHABILITATION ASSOCIATES 

 

BREAK 3:15 pm – 3:30 pm

 

 3:30 pm - 4:30 pm - VIEW FROM THE BENCH

Ethical Considerations for Settlement Conferences
and Other Dealings with the Court

 

 MODERATOR

Judith Price, Esq.  Dougherty, Leventhal & Price

 

 JUDICIAL PANELISTS

  Pennsylvania Superior Judge Court Judge Christine Donohue

Luzerne County Judge Lesa Gelb

Lackawanna County Judge Margie Bisignani-Moyle

U.S. Federal Middle District Magistrate Judge Karoline Mehalchick

 

 

 4:30 pm - 6 pm - POST-SEMINAR COCKTAIL RECEPTION

 

 

To Register, visit www.TortTalk.com and click on registration link

or mail check made out to "Tort Talk" and form below to:

 

Daniel E. Cummins, Esq.

 Foley, Comerford & Cummins

507 Linden Street, Suite 700 
 
Scranton, PA 18503

 

Cost: $195 Attorneys; $25 Claims Representatives

 

NAME: ___________________________________________________

 

FIRM/COMPANY: _________________________________________

 
 
EMAIL: ___________________________________________________
 
 

Thursday, April 16, 2015

Judge Nealon Rules in Favor of Consolidation for Post-Koken Trials (And Also Rules on Appropriate Jury Instructions)




In his April 15, 2015 decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another notable post-Koken decision in which he became one of the first few judges from across the Commonwealth of Pennsylvania to address the issue of whether or not a post-Koken third party/UIM matter should proceed to trial in a consolidated or bifurcated fashion - - Judge Nealon came down on the side of the consolidation and against bifurcation.  

However, Judge Nealon did rule that separate coverage issues presented with respect to the UIM claim should and would be bifurcated from the liability and damages claims presented in the negligence and UIM matter.  

According to the Opinion, the issue before the court revolved around whether a Plaintiff’s third party liability claim and underinsured motorists (UIM) claim may be tried in a single proceeding before the same jury, and if so, what jury instructions should be provided regarding the named parties and the questions to be decided by the jury.

In this matter, the tortfeasor Defendant was objecting to a consolidated trial with an insurance company as a Co-Defendant.  According to the Opinion, the UIM carrier did not object to a consolidated trial. 

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon ruled that, since the potential liabilities of the tortfeasor and the UIM carrier for damages arose out of the same factual background and involved common questions of law in fact, the Plaintiff’s liability and UIM claims would be consolidated for a single trial pursuant to Pa. R.C.P. 2229(b).  

The court also ruled that, given that the identification of the UIM carrier as a real party in interest and as a potential provider of UIM coverage did not introduce evidence of the tortfeasor’s liability insurance in violation of Pa. R.E. 411, the UIM carrier would be identified to the jury as a named Defendant who was furnishing prospective UIM coverage.  Judge Nealon noted that this identification of the UIM carrier by name as well as the reason as to why that carrier was in the case was necessary so that the jury would understand the participating UIM insurance carrier’s status as an adverse party to the Plaintiff.  

As noted above, Judge Nealon separately ruled that the UIM coverage dispute involving the Plaintiff’s residency and her entitlement to UIM benefits from the UIM carrier did not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages disputes.  Accordingly, the court ruled that the trial would be bifurcated on that separate issue pursuant to Pa. R.C.P. 213(b).  The court noted that the jury would first address the merits of the Plaintiff’s personal injury claims and render a verdict on the liability and damages issues.  

Judge Nealon went on to note that, if the jury awarded damages in excess of the tortfeasor’s liability insurance policy limits, such that UIM coverage was triggered, the second phase of trial would be conducted on the coverage issue to determine whether the Plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under that UIM policy at issue.

Judge Nealon further noted that, in the event a jury awards damages in an amount less than the tortfeasor’s liability insurance limits, the issue of the Plaintiff’s residency and the applicability of her grandparents’ UIM coverage would be rendered moot.

In his thorough Opinion on the issue of joinder or bifurcation of post-Koken claims at trial, Judge Nealon confirmed that he had reviewed the law of other jurisdictions in this case as well as in his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.), which research revealed that of the decisions on the separate, but similar, issue of consolidation/severance at the commencement of the case arising out of 33 other states, 27 jurisdictions allowed for the joinder of UM/UIM claims with civil actions against tortfeasors, while six (6) states favored severance of UM/UIM claims from tort actions.  

In ruling that liability in UIM claims may be joined for a single trial, Judge Nealon relied in part on the Pennsylvania Superior Court decision in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).

 
On the separate issue of the content of the jury instructions for a Post-Koken trial, the Plaintiff requested the court to utilize those instructions Judge Nealon had crafted in his prior decision in the case of Moritz v. Horace Mann Property and Casualty Insurance Company, 2014 W.L. 5817681 (C.P. Lacka. Co. 2014 Nealon, J.).  The court noted that Allstate objected to certain portions of those jury instructions set forth in the Moritz case.  

The tortfeasor Defendant was additionally arguing that neither the identity of the UIM carrier as a party, nor the question of the Plaintiff’s UIM claims, should be disclosed to the jury in the jury instructions.  

Judge Nealon agreed that the entirety of his proposed jury instructions as crafted in the Moritz case should not be read to the jury in this matter as the jury instructions drafted in the Moritz case were “appropriate only a case in which the Plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits.”  

For this reason, Judge Nealon agreed to somewhat limit the extent of his jury instructions in this case involving both a negligence claim against the third party tortfeasor and a UIM claim against the Plaintiff’s own carrier.  The court also tailored its jury instructions in this matter in light of the separate coverage dispute that was still pending with regards to the potential UIM claim.  

Overall, Judge Nealon agreed that the jury instructions in this matter should not reference the existence or amount of the tortfeasor’s liability insurance coverage as that would prejudice the tortfeasor in violation of the mandate under Pa. R.E. 411 prohibiting any reference to a tortfeasor's liability coverage at trial.  

In this Kujawski case, Judge Nealon stated that he would instruct the jury that the Plaintiff was required by law to establish by a preponderance of the evidence that the tortfeasor was negligent, that the tortfeasor’s negligence caused harm to the Plaintiff, and that the Plaintiff suffered damages as a result of her injuries.  

The court noted that the jury would also be informed in this Post-Koken matter that the policy of the UIM carrier (referenced by name in the instructions) provided underinsured motorists coverage, which may be available to pay some of the damages that may be awarded. 

Judge Nealon also planned to instruct the jury that the UIM carrier (again, referenced by name) should not be treated “any differently than any other Defendant in a civil action simply because [name of the UIM carrier] is an insurance company.”  

Judge Nealon also ruled that, given his ruling in favor of bifurcation on the separate coverage issue, the jury would also be advised that, depending upon its verdict at the conclusion of the liability and damages portion of the trial, the jury may be required to hear additional evidence and render a second verdict with regards to the Plaintiff’s residency at the time of the accident.    

Anyone wishing to review this Opinion may click this LINK
 
 
I send thanks to Attorneys Chad DeFelice and Joseph Pulcini, Jr. of the Bethlehem, PA office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.

Judge Minora of Lackawanna County Addresses Liability of Mental Health Professionals for Harm Caused by Mentally Unstable Patients

In the case of Rarrick v. Silbert, No. 2002 CV 4951 (C.P. Lacka. Co. March 24, 2015 Minora, J.), Judge Carmen D. Minora denied a motion for summary judgment filed by the defense in a medical malpractice case against a psychiatrist and another defendant entity in a case involving allegations that the defendant(s) failed to take appropriate steps to avoid a situation with an emotional unstable individual from escalating into a hostage-taking event for the Plaintiff and her family members that had to be defused by police intervention.

The defense argued that it was entitled to summary judgment because Pennsylvania law does not recognize a duty by mental health providers to protect unidentified third parties from the actions of mental health patients.  The defense also asserted that the Plaintiff had failed to offer evidence of gross negligence as allegedly required by the Mental Health Procedures Act.

The Plaintiffs countered with an argument that the Defendants stood in a special relationship with the Plaintiff that required the Defendants to take action to protect the Plaintiff and imposed upon the Defendants a professional duty to warn the Plaintiff of potential danger from her allegedly mentally unstable husband.  The Plaintiffs also asserted that there were issues of fact on the gross negligence question that prevented the entry of summary judgment.

Judge Carmen D. Minora
Lackawanna County
After reviewing the applicable law, Judge Minora agreed that, under the Restatement of Torts, there was no duty to control the conduct of third persons unless a special relationship existed.  However, there was case law noted by the court that a mental health professional may have a duty to protect by warning others of potential danger in extremely limited circumstances involving specific and immediate threats of serious bodily injury to a specifically identified individual or a readily identifiable individual.

Here, while there was evidence that the family members of the allegedly mentally unstable individual contacted the psychiatrist leading up to the incident, there was no threat voiced by the allegedly mentally unstable person to the psychiatrist found in the record.  Accordingly, Judge Minora found that the Plaintiff's argument failed to support a finding of a creation of a duty owed by the psychiatrist to the Plaintiff in this regard.

However, Judge Minora found that issues of fact on the gross negligence allegations of liability under the Mental Health Procedures Act question, prevented the entry of summary judgment in this matter.

Judge Minora also address issues with respect to the production of expert reports 1042.28.

Anyone wishing to review a copy of this decision by Judge Minora in the Rarrick case, may click this LINK.

Judge Williamson of Monroe County Stays His Course of Severing Bad Faith and UM/UIM Claims for Trial (But Not Discovery)

In his recent decision in the case of Kemp v. Mut. Benefit Ins. Co., PICS Case No. 15-0517 (C.P. Monroe Co. Jan. 14, 2015 Williamson J.), Judge David J. Williamson addressed a defendant carrier's motion to sever bad faith claims from the contractual claims in the early stages of the matter.  The motion also requested a stay on any bad faith discovery requests.

This matter involved UM/UIM coverage and bad-faith damages claims.  In her complaint, plaintiff sought recovery of UM and UIM benefits and bad faith damages under 42 Pa.C.S.A. §8371. She alleged a bad faith delay in the Defendant carrier's request for a statement under oath, a medical examination, or medical records.

Defendant filed to motion to sever the bad faith claims from the contractual claims and to stay discovery on the bad faith claims until resolution of the contractual claims.
Judge David Williamson
Monroe County
The court granted defendant's motion to sever but denied its motion to stay discovery.  Judge Williamson noted that there was no appellate authority regarding whether to sever bad faith claims from contractual claims and that there was a split among the courts of common pleas on the issue.

The court did hold that the Defendant insurance company would be prejudiced by joining the bad faith claims with the contractual claims during trial. Citing his own previous decision on similar issues in the case of Orsulak v. Penn National [See HERE], Judge Williamson granted the motion to sever the bad faith claims.

  As to defendant's motion to stay discovery regarding the bad faith claims, the court found that staying discovery until after resolution of the contractual claims would unfairly and unnecessarily delay a conclusion of all proceedings. Further, there were more efficient measures the court could use to protect defendant from prejudice than ordering a blanket freeze on all discovery regarding bad faith.  Judge Williamson noted that if actual prejudice caused by bad faith discovery requests could be shown as discovery progressed, the court could bar certain discovery until resolution of the contractual claims.

Anyone desiring a copy of this decision may email me at dancummins@comcast.net.

Source:  "Case Digests."  The Pennsylvania Law Weekly (March 30, 2015).

Wednesday, April 15, 2015

Public Road Running in Front of Home Not Part of "Insured Location" For Homeowner's Insurance Coverage Purposes


In his recent decision in the case of   O'Brien v. Ohio Casualty, No. 2002 CV 6990 (C.P. Lacka. Co.   Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas ruled that a homeowner's carrier had a duty to defend and indemnify in a case involving an ATV accident that occurred off of the premises of the insured homeowner.

After thoroughly reviewing the current status of the duty to defend/duty to indemnify law for declaratory judgment actions involving liability insurance coverage questions, Judge Minora tackled the central question before him of whether the "insured location" as defined in the insurance policy was implicated by the facts pertaining to how the subject accident occurred.

In the policy, the "insured location" was generally defined as the "premises you use."

Here, the person injured on the ATV drove the ATV away from the insured home, down the road, and then crashed on another homeowner's property.  Pointing to the similar scenario presented in the federal court decision of Haines v. State Auto, Judge Minora noted that the policy definition in that case was not found to cover a public road that ran in front of the insured premises.

Judge Carmen D. Minora
Lackawanna County
Judge Minora also pointed to a court of common pleas decision in which a similar argument was rejected on the grounds that it was unlawful to drive an ATV on public roadways.

As such, the court in O'Brien rejected the insured homeowners' attempt to invoke the coverage provision of the policy under an argument that they regularly used the road upon which the ATV was driven at the time of the accident.  The court also pointed out that the insured homeowners who were being sued did not regularly use the other property upon which the ATV eventually crashed so as to invoke the "insured location" language under the policy.

Accordingly, the homeowner's Motion for Summary Judgment on the coverage issue was denied and the carrier was not required to defend or indemnify the homeowners with respect to the underlying personal injury lawsuit arising out of the ATV accident involving an ATV owned by the homeowners' son.

Anyone wishing to review this decision online, may click this LINK.

Monday, April 13, 2015

Fishing Allowed With Written Discovery Requests -- But Only With a Hook or Harpoon (Not a Net)





In his recent Order of March 16, 2015, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the common issue of the allowance of liberal discovery efforts as compared to fishing expeditions in the case of Bandru v. Fawzen, No. 2013-CV-3959 (C.P. Lacka. Co. March 16, 2015 Nealon, J.).

This matter arose out of a motor vehicle accident.   More specifically, in this case, the court addressed a Motion by the Defendant to strike the Plaintiff’s objections to records subpoenas that the Defendant had addressed to the Plaintiff’s healthcare providers as well as to two (2) automobile insurance carriers.  

The gist of the Plaintiff’s objections is that the Defendant sought medical records dating back to the Plaintiff’s date of birth which was more than 52 years before.   As such, the Plaintiff asserted that the records requests were overly broad and sought information that is not relevant and not likely to lead to the discovery of admissible evidence.   The Plaintiff further stated that he would not object to subpoenas which were reasonably limited in time and scope.  

The defense countered with an argument that the Plaintiff had admitted during his deposition that he had had extensive dental work performed in the mid-1980s (in this matter, the Plaintiff was alleging a TMJ injury), that the Plaintiff had been injured in previous motor vehicle accidents.   The Defendant generally asserted that she was entitled to secured documentation relevant to the Plaintiff’s past medical history and any and all documents pertaining to the Plaintiff’s past medical care and treatment in order to ascertain whether any of the injuries alleged by the Plaintiff existed prior to the accident and/or whether or not the Plaintiff was involved in any other prior incidents as a result of which he sustained personal injuries.  

The Plaintiff acknowledged that he was involved in prior motor vehicle accidents in 1991, 1993, and 1998.  However, the Plaintiff also stated that, for years before the subject collision, he worked as a personal trainer and ran multiple marathons, along with ultramarathons of greater than 50 miles every year.   The Plaintiff also described during his discovery responses that any prior treatment he had in the mid-1980s as well as in the 1990s were for unrelated conditions that had no bearing on the issues presented following the subject accident.  

The Plaintiff additionally asserted that the Defendant’s request for medical records and the files of the automobile insurance carriers relative to the Plaintiff’s 1991, 1993, and 1998 accidents were "fishing expeditions." 

Judge Terrence R. Nealon
Lackawanna County
In his Opinion, Judge Nealon set forth the current status of the discovery standards pursuant to Pa. R.C.P. 4003.1 and confirm that discovery is to be liberally permitted with respect to any matters that were not privileged, and which were relevant to the case being tried.   The court also noted that any doubts regarding relevance should be resolved in favoring of allowing the requested discovery.  

However, Judge Nealon also stated that it is the responsibility of the trial court to oversee discovery between the parties and to determine, within the court’s broad discretion, any appropriate measures to ensure adequate and prompt discovery of matters allowed by the Pennsylvania Rules of Civil Procedure.   The court reaffirmed the general rule that, while discovery should be liberally permitted, discovery requests must also be reasonable.  Judge Nealon noted that the courts of Pennsylvania have repeatedly held that trial courts can prohibit the discovery of matters which would amount to a fishing expedition.  

Judge Nealon emphasized that while the courts have repeatedly indicated that, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’”   See Bandru at p. 6.  

Applying this law to the case before him, Judge Nealon ruled that some of the information requested by the defense was indeed discoverable and other information was not.  As such, the matter before the court was granted in part and denied in part.  

 
Anyone wishing to review a copy of this detailed Order issued by Judge Nealon may contact me at dancummins@comcast.net.  
 

Friday, April 10, 2015

PBI Article Highlights Skills Possessed by Successful Lawyers

Here is a LINK to an interesting article from the Pennsylvania Bar Institute's (PBI) Blog listing 17 Skills of Successful Lawyers in 2015.

The article was drafted after a "town hall" meeting of lawyers from around the United States on the topic of legal education and training with a notion towards directing law students and practicing lawyers towards being the best lawyers they can be in all aspects of their practice.