Novel Facebook Discovery Order Out of Lancaster County

In a recent Lancaster County Court of Common Pleas case of Perrone v. Lancaster Regional Medical Center,    (C.P. Lanc. Co. 2013 Cullen, J.), Judge James P. Cullen crafted a novel method of handling a Facebook Discovery dispute in a civil litigation personal injury case.

This case involved an alleged slip and fall in the defendant hospital allegedly resulting in significant injuries to the Plaintiff.  According to a May 20, 2013 Legal Intelligencer article entitled "Judge Orders Parties to Hire Neutral Expert to Probe Facebook," by Ben Present, at the center of this discovery dispute was photographs of the Plaintiff playing in the snow along with a video of the Plaintiff sledding down a hill and tumbling off the sled at the bottom of the hill all the while laughing.

While the defense contended that these photos and the video post-dated the subject accident, the Plaintiff asserted that these items pre-dated the accident.

Judge Cullen granted limited discovery.  In his two-page order, Judge Cullen ordered the parties to hire a "neutral forensic computer expert" to analyze the Plaintiff's private Facebook page during the 17-day window in which the Defendants claim the photographs and video arose.

In its Order, the court directed that the neutral expert was to identify all photographs of snow and references to snow on Plaintiff's Facebook page, along with any photos depicting the Plaintiff participating in physical activity during the specified time frame.

The parties were required by the Order to agree upon an expert within seven days of the court's Order.  The court also mandated that the discovery be completed within 60 days.

Under the Order, the court directed that the expert was to retain the Plaintiff's Facebook username and password and then download the contents of the Plaintiff's Facebook to a hard drive on which data for the time period at issue was to be isolated.

The cost of this process, including the expert's fees, was to be covered by the Defendants, Lancaster Regional Medical Center and Hospital Housekeeping Systems, as the proponent of the discovery request.

As noted by Ben Present in his article in The Legal Intelligencer this "case appears to be the first matter in which a Pennsylvania judge has ordered the hiring of such an expert to review a party's Facebook information."

Anyone desiring a copy of this decision may click this LINK.

I send thanks to Ben Present of The Legal Intelligencer/Pennsylvania Law Weekly for providing me with a copy of this decision.

REGISTRATION OPEN FOR LACKAWANNA PRO BONO'S JUNE 3, 2013 GOLF TOURNAMENT

Another Decision out of Eastern District of Pennsylvania Applying the Restatement (Third) in a Products Case

In the recent products liability case of Readon v. Illinois Tool Works, Inc., PICS Case No. 13-0891 (C.P. Pa. April 10, 2013 Yohn, J.), Judge Yohn of the Eastern District Federal Court chose to apply the Restatement (Third) of Torts in deciding a Defendant’s Motion to Exclude Expert Testimony and For Summary Judgment.  Ultimately, with the application of the Restatement (Third) to the facts of this case, the court denied the Defendant’s motion.

Anyone wishing to review this recent Pennsylvania federal district court decision utilizing the Restatement (Third) in a products case may click this LINK.

Source:  Pennsylvania Law Weekly Digest of Recent Opinions (April 30, 3013).

A Philadelphia County Rule 1925 Opinion Upholding Erie Insurance Forum Selection Clause

I previously reported on the Philadelphia County Court of Common Pleas post-Koken decision on venue in the case of Fish v. Erie Insurance Company, No. 003411, Jan. Term, 2013 (C.P. Phila. Co. 2013 New, J.), in which the court granted Erie Insurance Company’s Preliminary Objections based upon a forum selection clause and transferred venue of a UIM case from Philadelphia to Franklin County.   The original ruling was by Order only.

That case has been appealed and Judge New has issued a Rule 1925 Opinion in support of his previous decision.   Anyone wishing to review that decision may click this LINK.

I send thanks to Attorney John Statler of the Lemoyne, PA law firm of Johnson, Duffie, Stewart &
Widner for forwarding a copy of this Opinion to my attention.

Pennsylvania Superior Court Sides With Claimant in "Sign Down" UIM Case

In its recent decision in the case of Weilacher v. State Farm, No. 124 WDA 2012 (Pa.Super. 2013)(Musmanno, Wecht, and Colville, J.J.)(Opinion by Musmanno, J.), the Pennsylvania Superior Court sided with a Plaintiff-insured on a question of whether the carrier should have obtained sign down forms for UM/UIM coverages after the insured had increased the liability limits under the policy.

 

In this case, the Weilachers were insured by a policy issued by “State Farm Fire & Casualty Company.” They had initially rejected both UM and UIM coverage pursuant to Section 1731.  The liability limits at policy inception were $25,000/$50,000. At some point the Weileachers added UM coverage in an amount equal to the liability coverage. 

 

A policy was then transferred to “State Farm Mutual Automobile Insurance Company” and a “new” policy issued with a different policy number.  All coverages were the same.  No additional underwriting forms were obtained. 

 

The Weilachers then added UIM coverage in amount equal to the liability coverage.  The policy stayed as is for a couple of years. 

 

In 2009 the Weilecher’s increased the liability coverage only to $500,000/$500,000.  This was done electronically.  The UM/UIM coverage remained at $25,000/$50,000.  No sign down forms were obtained; further, there was no other underwriting documentation obtained at that time.

 

Mrs. Weilacher was thereafter injured in an accident.  The insureds claimed that their UIM coverage should be $1 million ($500,000 x 2 – the amount of the liability coverage, stacked).  State Farm disagreed and tendered the $50,000 in “undisputed coverage.”

 

The insured then instituted a declaratory judgment action in Allegheny County.  State Farm attempted to remove it to federal court, but the case was remanded pursuant to Sumy v. State Auto as the dispute involved only questions of state law.

 

The parties then entered into a stipulation of facts and filed cross-motions for summary judgment.  The insured’s position was that State Farm was required to obtain a “sign down” when the liability limits were increased as there had previously been no sign down; and thus this case was distinguishable from Blood v. Old Guard.  State Farm’s position was that Blood was controlling and that the change in liability coverage only did not trigger any obligation to obtain a new sign down form.

 

Judge DelaVecchio the Court of Common Pleas of Allegheny County granted State Farm’s motion and denied the insureds’ motion.  An appeal was taken to Superior Court. 

 

Judge Musmano authored the Superior Court's opinion reversing the trial court and holding that State Farm was obligated to provide $1 million in UIM coverage after finding that this matter was factually distinguishable from Blood. 

 

The Superior Court apparently felt that, in Blood, there had been an election of lower UIM coverage at some point in the pendency of the policy.  As such, the insureds in that case had demonstrated an affirmative intention to select UIM coverage less than the liability coverage.  This was found not to be the case with the Weilechers. 

 

The Superior Court also held that there was, in fact, a remedy for failure to comply with Section 1734.  The trial court had agreed with State Farm that Salazar v. Allstate applied and that, even if there was a violation of Section 1734, there was no remedy. 

 

The Superior Court held that Salazar was distinguishable and that the remedy was reformation of the policy to provide UIM coverage in an amount equal to the liability coverage.  The court also held that it was of no moment that the Weilecher’s had paid lower premiums for reduced UIM coverage, citing Erie v. Larrimore.

 

Anyone wishing to review the Superior Court's opinion in Weilecher v. State Farm may click this LINK.

 

Judge Mazzoni of Lackawanna County Addresses Notice Requirement in UM Case

In his recent April 5, 2013 decision in the case of State Farm Mutual Automobile Insurance Company v. Roshan, No. 2010-Civil-3105 (C.P. Lacka. Co. 2013 Mazzoni, J.), Judge Robert A. Mazzoni entered a verdict in favor of Plaintiff, State Farm, in a nonjury proceeding concerning a declaratory judgment action involving a claim for automobile insurance benefits with regards to a “miss and run accident.”   

Judge Robert A. Mazzoni
Lackawanna County

The issue before the court was whether the Defendant injured party complied with the notice requirements of the MVFRL 75 Pa. C.S.A. §1702 concerning an accident with “an unidentified motor vehicle.”  

Judge Mazzoni found, based upon the record before the court, that the Defendant injured party failed to report the accident to “the police or proper governmental authority” within thirty (30) days as required under §1702.  As such, a non-jury verdict in favor of State Farm was entered by the court. 

Anyone desiring a copy of this Opinion may click this LINK.  

Judge Nealon of Lackawanna County Addresses Proper Pleading of a Complaint

In his recent decision in the case of Rogers v. Thomas, No. 2012 - CV - 1464 (C.P. Lacka. Co. May 10, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas entered a demurrer on claims asserted against a parent for the alleged shooting of another by an adult child.  The court dismissed that claim after finding that there was no evidence to show that the parent had any control over the gun used in the alleged shooting.

Judge Nealon's Opinion is also interesting for the analysis of the current law on a variety of issues pertinent to the proper pleading of a Complaint in a civil litigation, including such issues as:

• Erroneous Pleading of Punitive Damages Claim as Independent Cause of Action;
• Striking of Impertinent Matters in Complaint;
• Sustaining Objections to repeated use of nonspecific term "Defendants" in allegations of the Complaint against multiple Defendants, without specifying which allegations applied to what defendants.

Anyone wishing to review Judge Nealon's Opinion in the Rogers case may click this LINK.