Friday, January 23, 2015

Eastern District Federal Court Dismisses Auto Insurance Bad Faith Claims

In its recent memorandum decision in the case of Mozzo v. Progressive Ins. Co., No. 14-5752 (E.D. Pa. Jan. 5, 2015 Buckwalter, S.J.) (mem.), the Federal District Court for the Eastern District of Pennsylvania dismissed a plaintiff’s auto insurance bad faith claims and granted the right to amend by stayed any bad faith discovery in the meantime.

In Mozzo, the Plaintiff insured sued his auto carrier alleging bad faith and breach of contract claims.

The court ruled that mere allegations that Plaintiff insured complied with investigation requests, that the auto insurer arbitrarily and capriciously failed to honor its contractual obligations, that plaintiff sustained and continues to sustain damages, and that the auto insurer has acted in bad faith, are insufficient to support a bad faith claim under Pennsylvania law.  The court more specifically found that the plaintiff failed to set forth cogent facts as to the Defendant auto insurer's actions, let alone any factual support of alleged acts or omissions from which the court could even infer a proper bad faith claim.

As such, the Plaintiff's bad faith claim was dismissed.  However, the court did grant the Plaintiff leave to amend.

Moreover, the court ruled that, given that the bad faith claim was dismissed, the request for attorney fees is not available and, as such, that claim was also dismissed.

Last but not least, the court further noted that the Plaintiff was not entitled to bad faith discovery until he sets forth some facts upon which the court could plausibly infer the existence of a bad faith claim.



 

New Rules Regarding Allowable Fees Issued by Medical Providers for Copying Medical Records

I received the below information by email from MCS (www.themcsgroup.com), a subpoena/records acquisition/deposition vendor that I utilize in my practice.  As the info may impact many in terms of costs of securing copies of medical files from medical providers, I thought I would pass it along verbatim:


Effective January 1, 2015, the Commonwealth of Pennsylvania has adjusted the fees for copying medical records at all health care institutions within the state. The new rules are as follows:
 
1. Flat fees apply to amounts that may be charged by a health care facility or health care provider when copying medical charts or records either:
 
(a)  for the purpose of supporting any claim or appeal under the Social Security Act or any Federal or State financial needs based program
 
(b)  for a district attorney.
 
2. An insurer shall not be required to pay for copies of medical records required to validate medical services for which reimbursement is sought under an insurance contract, except as provided in:
 
(a)  the Workers' Compensation Act and the regulations promulgated thereunder
 
(b)  75 Pa.C.S. Chapter 17 (relating to Motor Vehicle Financial Responsibility Law) and the regulations promulgated thereunder
 
(c)  a contract between an insurer and any other party.
    
The charges listed in this advisory do not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.
   
The Secretary of Health is also directed to make a similar adjustment to the flat fee which may be charged by a health care facility or health care provider for the expense of reproducing medical charts or records where the request is:

(a)  for the purpose of supporting a claim or appeal under the Social Security Act or any Federal or State financial needs based benefit program
 
(b)  made by a district attorney.
    
The Secretary of Health bases these adjustments on the most recent changes in the Consumer Price Index reported annually by the Bureau of Labor Statistics of the United States Department of Labor.
   
For 2015, the following fees may be charged by a health care facility or health care provider for production of records in response to subpoena or request:

Search & Retrieval of Records Flat Fee
$21.69
Amount charged per page for pages 1-20
$1.46
Amount charged per page for pages 21-60
$1.08
Amount charged per page for pages 61-end
$0.36
Amount charged per page for microfilm copies
$2.16
     
These fees will apply for paper copies or reproductions on electronic media whether the records are stored on paper or in electronic format.

Note: In addition to the amounts listed above, charges may also be assessed for the actual cost of postage, shipping and delivery of the requested records.



For more information please contact

Alyson Gabel

1.800.473.5003 ext. 8135

Wednesday, January 21, 2015

Superior Court Begrudgingly Applies Statute of Limitations Discovery Rule in Limited Tort Context

In its decision from earlier this week in the case of Varner-Mort v. Kapfhammer, No. 261 WDA 2014, 2015 Pa. Super. 14 (Pa. Super. Jan. 21, 2015 Ford Elliott, P.J.E, Allen, and Strassburger, J.J.)(Op. by Strassburger), the Pennsylvania Superior Court addressed the application of the discovery rule in the context of a limited tort case.  In the end, the court reversed a trial court's entry of summary judgment in favor of a defendant.

This matter arose out of a motor vehicle accident that occurred on May 6, 2009.  There was no dispute that the Plaintiffs were covered by the Limited Tort Election.

Over two years later, on June 27, 2011, the husband and wife Plaintiffs filed their negligence personal injury/loss of consortium Complaint. 

In his Answer and New Matter, the Defendant asserted a statute of limitations defense.  The defense later filed a motion for summary judgment alleging, in part, that medical records produced in discovery confirmed that the Plaintiff sought out medical treatment on the date of the accident and was diagnosed with injuries.  The injuries were initially diagnosed as a back sprain with paresthesia (numbness and tingling) to the lower extremity. 

Accordingly, it was the defense position that the injured party Plaintiff was aware of her alleged car accident-related injuries from the date of the subject accident.   The defense also noted that the records confirmed that the Plaintiff continued to treat for low back complaints up through 2011. 

As such, it was the defense position that, pursuant to the applicable two year statute of limitations, the Plaintiffs were required to file their claim by May 6, 2011.  The defense contended that, since the Complaint was not filed until June of 2011, the Plaintiffs' claims were barred by the statute of limitations.

Given the application of the limited tort election, the Plaintiffs countered with the creative argument that, under the discovery rule, the statute of limitations should not be deemed to begin to run until the injured party Plaintiff discovered that she sustained a "serious injury" as a result of the accident.  In this regard, the Plaintiffs argued that the injured party did not have an MRI until August of 2009.  Accordingly, there was an alleged genuine issue of material fact as to when the Plaintiff discovered that she sustained a "serious injury" such that the motion for summary judgment should be rejected and the case allowed to proceed to a jury.

Whereas the trial court in Blair County rejected the Plaintiffs' argument and granted summary judgment on the statute of limitations issue, the Pennsylvania Superior Court accepted this argument of the Plaintiffs and overruled the trial court.

In so ruling the Varner-Mort relied upon the prior similar case of Walls v. Scheckler, 700 A.2d 532 (Pa. Super. 1997), which addressed the same issue and came to the same result, i.e.,  the statute of limitations in limited tort case should be deemed to start to run when a Plaintiff is aware that he or she may have sustained a "serious injury."

The Walls court reasoned that "Since, under the provisions of [Section 1705, the limited tort statute], a limited tort plaintiff does not have a valid cause of action unless and until an injury rises to the level of a 'serious injury,' and since the statute of limitations period does not ordinarily begin to run until a cause of action accrues, we conclude that the statute of limitations period cannot begin to run on a limited tort plaintiff until he knows or reasonably should know that he has sustained the requisite serious injury."  Walls, 700 A.2d at 533-534.

Apples and Oranges

Notably, the Judges deciding this Varner-Mort case stated that, while they were bound to follow the Walls decision as binding precedent, the Varner-Mort majority viewed the Walls decision as being "just plain wrong."  Varner-Mort at p. 7.  The Varner-Mort majority would have preferred to follow the discovery rule in its ordinary application.

This was particularly so given that, regardless of the Plaintiff's tort status, the Plaintiff was still entitled to pursue a claim economic damages, such as wage losses or medical expenses, even if the Plaintiff failed to show that she sustained a serious injury.  The Varner-Mort majority failed to see why a limited tort plaintiff should be treated any differently in terms of the statute of limitations beginning to run when the Plaintiff was aware of her physical injury from the accident at the scene or when it was diagnosed in the emergency room on the day of the accident.

Nevertheless, the Varner-Mort court obviously reluctantly applied the law as stated in the Walls case and ruled that genuine issues of material fact existed as to when the Plaintiff would have been aware that she sustained a serious injury such that the trial court's entry of summary judgment would be reversed and the case remanded for further proceedings.

Anyone wishing to review this Opinion may click this LINK.

President Judge Kate Ford-Elliott's Concurring Opinion can be viewed HERE.  In her Concurring Opinion, President Judge Ford-Elliott noted her agreement with the result and distanced herself from the statement that the Walls decision was wrongly decided.


For Kramer's take on the "statue" of limitations, click on the photo below:



 
Source of Video:  Seinfeld

Tuesday, January 20, 2015

Summary Judgment Entered in Carbon County Trip and Fall Case

In his recent September 30, 2014 decision in the case of Rochow v. Neast, No. 12-CV-0737 (C.P. Carbon Co. Sept. 20, 2014 Serfass, J.), Judge Steven R. Serfass, of the Carbon County Court of Common Pleas, granted summary judgment to a Defendant property owner in a trip and fall case involving a hole in steps on the premises.  

In this matter, the evidence before the court on summary judgment revealed that the Plaintiff had visited the Defendant’s property between 20-52 times prior to her fall.   Moreover, the Plaintiff had previously used the subject steps between 40-104 times.  She admittedly noticed the subject hole on the steps on the first time she visited the property.   The Plaintiff also admitted in her deposition that she understood that there was the potential for “some sort of accident” if she did not watch while she was going while on those steps.  

The Plaintiff additionally admitted at her deposition to observing the subject hole on the steps while entering the Defendant’s property on the day of her fall.  She also admitted that, while coming down the steps at the time of her fall, she was zippering her jacket and not looking down at the steps.  

The Plaintiff argued in her Brief in Opposition to the Defendant’s Motion for Summary Judgment that, while she acknowledged being aware of the hole on the steps and that she might possibly be injured, there was no evidence that she knew of the actual risk involved, i.e., suffering multiple fractures.  

Although the court’s Order in this matter granting the Defendant’s Motion for Summary Judgment was by Order, Judge Serfass did include a detailed footnote outlining the rationale for his Opinion.  

In granting the Motion for Summary Judgment, Judge Serfass relied primarily on the Restatement (Second) of Torts §342 which provides that a possessor of land is subject to liability for physical harm to a licensee caused by a condition on the land only if:  

(a)        the possessor knows or has reason to know if the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or      realize the danger;

 (b)        he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and,

(c)        the licensee does not know or have reason to know the condition and the risk involved.  

 
As noted above, the Plaintiff was attempting to maneuver around the Motion for Summary Judgment by asserting that neither she nor the possessor of land were aware of the specific risk involved.  

Relying upon Pennsylvania Superior Court precedent, Judge Serfass stated that “the fact that Plaintiff argues that she was not aware of the severity of the potential injuries that could be sustained as a result of falling from “Defendant’s steps is of no consequence in determining whether she has satisfied the third element of §342.”

Here, the Plaintiff admitted that she knew of the existence of the hole from the first time she visited the premises and that she knew she could potentially fall if she did not pay attention to where she was stepping.   Judge Serfass noted that precedent supported his conclusion that where a Plaintiff admits to knowing the potential risk associated with the conditions on the Defendant’s property, the requirements of the Restatement (Second) of Torts §342 were satisfied.  

Stated otherwise, “although Plaintiff may not have known that she would have sustained the exact injuries she ultimately did, she knew that the condition of the steps posed a danger of causing one to fall.”  

On this basis, the court granted the summary judgment Motion filed by the Defendant, finding that the Plaintiff could not satisfy the third element of §342 noted above.  

It is noted that the prevailing defense attorney in this matter was Attorney Chris Carling, in-house counsel in the Moosic, Lackawanna County, Pennsylvania office of Travelers Insurance Company.  


Anyone wishing to review this trip and fall decision of Rochow v. Neast out of Carbon County may click this LINK.

Monday, January 19, 2015

Corrected Link to Pennsylvania Law Weekly Article on Products Liability Issue



Here's the CORRECTED LINK to a Pennsylvania Law Weekly article by Lizzy McLellan (a great name for a reporter) entitled "Citing Tincher, Lackawanna Judge Upholds $5.9M Verdict."  The verdict was secured by Attorneys James Mundy and Bruce Zero of the Scranton, Lackawanna County, PA law firm of Powell Law. 

The article outlines Judge Gibbons' Opinion in the Cancelleri case, which appears to be one of the first, if not the first, trial court decision to tackle the new products liability analysis outlined by the Pennsylvania Supreme Court in the Tincher v. Omega Flex case.  A Tort Talk post on the Cancelleri decision can be viewed HERE [and there is a Link to Judge Gibbons' Opinion in that post.

If you are not able to view the above article at the Link provided, please email me at dancummins@comcast.net and I will send you a copy.

Judge Gibbons' Products Liability Opinion (Applying Tincher) Highlighted in Pennsylvania Law Weekly



Here's a LINK to a Pennsylvania Law Weekly article by Lizzy McLellan (a great name for a reporter) entitled "Citing Tincher, Lackawanna Judge Upholds $5.9M Verdict."  The verdict was secured by Attorneys James Mundy and Bruce Zero of the Scranton, Lackawanna County, PA law firm of Powell Law. 

The article outlines Judge Gibbons' Opinion in the Cancelleri case, which appears to be one of the first, if not the first, trial court decision to tackle the new products liability analysis outlined by the Pennsylvania Supreme Court in the Tincher v. Omega Flex case.  A Tort Talk post on the Cancelleri decision can be viewed HERE [and there is a Link to Judge Gibbons' Opinion in that post.

If you are not able to view the above article at the Link provided, please email me at dancummins@comcast.net and I will send you a copy.

All Scorecards on Tort Talk Updated


 
TORT TALK SCORECARDS UPDATED
 
 


The Post-Koken Scorecard has been updated.  This Scorecard lists important cases uncovered on a variety of issues in the new form of UIM and third party lawsuits in auto accident cases.  It is periodically updated with new cases and always freely accessible.  Click this LINK to view the Post-Koken Scorecard.


The Facebook Scorecard has been updated (No new or recent cases to report).  This Scorecard lists important cases found on the issue of the discoverability of social media information on a party or a witness to a personal injury litigation.  This Scorecard is also periodically updated with new cases and is equally always freely accessible.  Click this LINK to view the Facebook Discovery Scorecard.


The Products Liability Restatement Scorecard has also been updated.  This Scorecard lists important cases on the debate of whether the Restatement (Second) of Torts or the Restatement (Third) should apply in Pennsylvania Products Liability cases.  That debate was recently settled (for the time being) by the Pennsylvania Supreme Court's decision in Tincher v. Omega Flex.  At least one Post-Tincher case has been uncovered to date.  This Scorecard will be periodically updated with new cases and is always freely accessible.  Click HERE to view the Products Liability Restatement Scorecard.


Please note that these Scorecards can also always be viewed by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under each Scorecard.


I welcome your sending copies of any Opinions or Orders that may fall under any of the topics noted above to be included in the Scorecard as a way to keep the bar apprised of the latest developments in these new areas of Pennsylvania Common Law.

As such, please do not hesitate to forward a copy of any new Post-Koken auto law decisions on any issue, any Facebook/social media discovery decisions, or any Post-Tincher products liability Opinions or Orders.  I can be reached at dancummins@comcast.net.

Thank you very much.