Friday, October 31, 2014

HAPPY HALLOWEEN


 
Why did the game warden arrest the ghost?  The ghost didn't have a haunting license.
 
Why don't lawyers and mummies take vacation?  They're both afraid to relax and unwind.
 
What happened to the guy who couldn't keep up payments to his exorcist?  He got repossessed.
 
Why do lawyers get deeper burials in cemeteries?  Because deep down, they're good people.

What did the Mummy say to his lawyer?  Let's wrap this case up!
 
 
HAPPY HALLOWEEN
FROM
TORT TALK
 


Pennsylvania Supreme Court Declines Opportunity to Review Important Voir Dire Issues


According to an October 30, 2014 article by P.J. D'Annunzio in The Legal Intelligencer entitled "Pa. Justices Deny Appeal in Juror Bias Med Mal Case," the Pennsylvania Supreme Court has issued an Order declining to entertain the appeal from the 6-2 en banc Superior Court decision in the case of Cordes v. Associates of Internal Medicine overturning a defense verdict in a medical malpractice case after finding that the plaintiff's case had been prejudiced because three of the jurors allowed to serve on the panel at trial had ties to the defendants.

Justice Correale Stevens did not participate in the Court's per curiam Order denying allocatur on the questions presented pertaining to a party's right to a fair and impartial jury at trial.

Click HERE to go to the previous Tort Talk blog post summarizing the Superior Court's decision.  There are links to the Superior Court's Opinions in Cordes in that blog post if you are interested in reviewing the same.


Wednesday, October 29, 2014

The Latest on Ethical Issues With Use of Social Media by Attorneys and Their Clients


Here is a LINK to an October 28, 2014 article by Daniel J. Siegel that appeared in the Pennsylvania Law Weekly entitled "PBA Ethics Committee Issues Social Media Guidance" which outlines ethical opinions offered up by the Philadelphia Bar Association and, more recently, the Pennsylvania Bar Association on a myriad of social media ethical issues facing attorneys and their clients.  A good read.

If you cannot access the article through the Link, please email me at dancummins@comcast.net and I will shoot you a copy.

Here is a LINK to the actual PBA Formal Opinion entitled "Ethical Obligations For Attorneys Using Social Media."


Source of Social Media imagewww.plus.Google.com

Tuesday, October 28, 2014

Which Tort Option Applies?

In his recent decision in the case of Edgington v. Abersold, PICS Case No. 14-1630 (C.P. Lawrence Co. Sept. 24, 2014 Piccione, J.), Judge Thomas M. Piccione addressed the issue of determining a Plaintiff’s tort coverage where more than one private passenger motor vehicle accident policy was applicable and the policies had conflicting tort options.  

In his decision, Judge Piccione applied the provisions of the Motor Vehicle Financial Responsibility Law that provide "where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.”   See 75 Pa.C.S.A. Section 1705(b)(2).

According to the Opinion, the injured Plaintiff in this case did not have a driver’s license and did not own a vehicle.   The Plaintiff was an insured under a limited tort policy purchased by her husband. 

However, at the time of the accident, the injured party Plaintiff was riding in her mother’s vehicle as a passenger.  The Plaintiff's mother had a full tort policy on that vehicle.  

Judge Piccione applied the facts to the above stated provision of the Motor Vehicle Financial Responsibility Law and held that a passenger with no driver’s license and who did not own a vehicle is bound under the insurance coverage and tort option selected by a spouse unless, as here, the passenger was riding in a car of a different owner with different coverage.

Since the injured party Plaintiff was found to be an insured under her mother’s full tort insurance policy, the Plaintiff was deemed capable of seeking recovery for both economic and non-economic damages as a full tort Plaintiff.  

 
I do not have a copy of this decision.  However, a copy can be secured from the Instant Case Service of The Pennsylvania Law Weekly by calling 1-800-276-7487 to order a copy of the case for a small fee.  
 
Below is a Limited Tort Primer I created once when faced with the issue of which Tort Option would apply in different scenarios--rather than having to go look it up every time, I like to keep this list handy for easy reference.  Hope it helps to kickstart your research whenever you are faced with the same issue:



A.        WHO IS COVERED BY LIMITED TORT

The issue of who is covered by the limited tort election is governed by an application of 75 Pa.C.S. §1705(b)(2), which provides, as follows:

 

(2)  The tort option elected by the named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.  In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.

 

The Pennsylvania Supreme Court has stated that “[t]he formula [for determining who is a limited tort plaintiff] is clear—where there is only one insurance policy, sentence one [of §1705(b)(2) above] applies;  where there is more than one policy with conflicting tort options, sentence two determines the applicable coverage.”  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).
 

POTENTIAL LIMITED TORT SCENARIOS

 

-Named insured is bound by limited tort selection in own insured vehicle at time of accident

 

-Named insured’s selection of limited tort under policy shall also apply to all other insureds under that policy who are not named insureds under their own separate insurance policy.  75 Pa.C.S. §1705(b)(2).

 

-If there is more than one policy covering an insured, and the policies have conflicting tort option, the insured will be bound by the tort option selected in the policy covering the vehicle the insured was an occupant of when involved in the accident if the insured is covered under that policy.  Carns v. Smith, 118 Dauph. Co. Rpts. 417 (1998).
 

-Where injured party is an “insured” under a full tort policy covering the vehicle she is occupying at the time of the accident, but is a “named insured” under a limited tort policy, the Pennsylvania Supreme Court has held that the second sentence of 75 Pa.C.S. §1705(a)(2) applies, which entitles the injured party to full tort coverage because at the time of the accident she was the occupant of a vehicle that had full tort coverage and she was also an insured under that policy (she was a resident relative).  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).

 

-Where the injured party selected limited tort coverage as a named insured under her own policy but is injured while riding as a passenger in a vehicle covered by a full tort policy, but the injured party does not qualify as an “insured” under that full tort policy, then there are no conflicting tort options and the passenger is bound by her limited tort election.  Perry v. Leader Ins. Co., 54 Northampton Co. Rpt. 465 (2005).

 

-Where the injured party has selected the full tort option on his own policy but is a passenger/insured in a vehicle covered by a limited tort policy, one court has found the injured party in this scenario to be covered by the limited tort option.  Clikeman v. Bahrenburg, No. 1124 EDA 2005 (Pa.Super. 11/22/05)(mem. op.)

 

-A person who is not the owner of a registered motor vehicle and who is not a named insured or insured under any automobile insurance policy is considered a full tort plaintiff.  75 Pa.C.S. §1705(b)(3)

 

-A person who owns a registered but uninsured motor vehicle shall be deemed to have selected the limited tort option .  75 Pa.C.S. §1705(a)(5);  However, the children of a person who has a registered but uninsured motor vehicle will not be punished with a deemed limited tort status—they are considered to be full tort.  Holland v. Marcy, 883 A.2d 449 (Pa. 2005).

 

-A pedestrian who is covered by the limited tort option will not be bound by that election when hit by a car.  L.S. v. David Eschbach, Jr., Inc., 874 A.2d 1150 (Pa. 2005). 
 
 
 
 
 
 

 

 

Friday, October 24, 2014

PBI's 21st Annual Auto Law Update CLE Seminar a Week Away


I will be presenting on the topic of "The Latest in Bad Faith" at the PBI's 21st Annual Auto Law Update CLE Seminar set to take place on October 31, 2014.  The program begins at noon.

If interested in registering to attend the live seminar in Mechanicsburg, PA or any of the webcast of the CLE on the same date and time to locations all around the Commonwealth of Pennsylvania, click this LINK.

This CLE program offers a total of 4 credits, one of which is an Ethics credit.

Here is a LINK to the Course Agenda for the October 31 Mechanicsburg/Simulcast Program.

Subsequent Remedial Measures And Medical Expert's Opinion Precluded in Slip and Fall Case

In its recent decision in the case of Hunter-McLeod v. Dollar General, No. 13-3113 (E.D. Pa. Sept. 16, 2014 DuBois, J.) (Memorandum and Opinion), the Eastern District Federal Court addressed the issues of subsequent remedial measures in a slip and fall case as well as the admissibility of an expert medical opinion.  

This matter arose out of a slip and fall accident that occurred at a Dollar General Store in Philadelphia, Pennsylvania.   Surveillance cameras captured the Plaintiff’s entrance into the store and her accident.   The surveillance video also captured the four (4) employees placing a piece of cardboard over the area of the fall following the incident.  

Prior to trial, the Defendant filed a Motion In Limine to exclude all evidence of subsequent remedial measures contained in the surveillance video as well a Motion to Preclude the Plaintiff’s medical expert from offering certain evidence at trial. 

Applying F. R.E. 407, pertaining to the admissibility of subsequent remedial measures, the court granted the Defendant’s Motion and excluded the evidence of the store’s post-accident actions as inadmissible.   In so ruling, the court found that there was no evidence that the subsequent remedial measures contradicted any witnesses’ testimony directly in order to be admissible for impeachment purposes.  

With respect to admissibility of the Plaintiff’s expert medical opinion that the subject accident “may have” aggravated Plaintiff’s degenerative arthritis of the left hip, the court found that this testimony was not admissible even though the witness stated that the opinion was offered to a reasonable degree of medical certainty. 

Applying Pennsylvania law, the federal court noted that the Pennsylvania Superior Court has stated that “[e]xpert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing out the injury.”   Citing Kravinsky v. Glover, 396 A.2d 1349, 1356 (Pa. Super. 1979).   The federal court noted that the Kravinsky Superior Court also explained that “an expert fails this standard of certainty if he testifies that the alleged cause possibly, or could have[,] led to the result, that it could have very properly accounted for the result, or even that it was very highly probable that it caused the result.”   396 A.2d at 1356 [other citations omitted]. 

In this case, the Plaintiff’s medical expert report provided as follows:  “I believe her slip and fall caused an aggravation of pre-existing degenerative disc [sic] made of x-ray findings which revealed degenerative arthritis of the left hip.   This was not caused by the fall, but may have been aggravated.”  

The defense took issue with the Plaintiff’s expert’s opinion that the accident “may have” caused an aggravation of the Plaintiff’s arthritis.   The federal court concluded that the Plaintiff’s expert medical opinion was insufficient and therefore inadmissible even though the doctor concluded his report with a statement that his opinion “have been rendered with a reasonable degree of medical certainty.”  

 
Anyone wishing to review this Eastern Pennsylvania Federal Court memorandum decision may click this LINK

Tuesday, October 21, 2014

Trivial Defect Doctrine Applied in Lycoming County Trip and Fall Case to Deny MSJ

In the case of Walker v. Community Action Realty, Inc., No. 13-00,418 (C.P. Lycoming Co. Oct. 13, 2014 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas recently denied a Defendant’s Motion for Summary Judgment in a slip and fall case based upon a defense allegation that the Plaintiff failed to identify the specific defect that caused her to fall and because the alleged defect was so trivial that allowing it to exist was not negligent as a matter of law.  

According to the Opinion, the Plaintiff stumbled, trip, and fell down stairs onto a sidewalk outside a building, allegedly sustaining injuries.   At her deposition, the Plaintiff testified that her foot came into contact with a raised portion of the pavement on the porch at the top of the stairs, causing her to trip and fall down the stairs.  

It was undisputed that there was a raised area of the porch surface located a few inches from the front edge of the top step between the doormat and the front step.   An investigative report noted that the irregularity was only about 1/8th of an inch high.  However, the raised area of the porch surface was located directly in the middle of the steps, which was noted to be a busy, heavily traversed point of primary access into and out of the public building.  

After reviewing the law pertaining to trivial defects in premises liability cases, the court denied the Defendant’s Motion for Summary Judgment after noting that no definite or mathematical rule can be laid down as to the depth or size of a sidewalk defect to determine whether the defect was trivial as a matter of law.  

Judge Richard Gray
Lycoming County
Applying the trivial defect doctrine to the facts before him, Judge Gray reiterated that the defect in question, the existence of which was admitted by the defense, was in the direct line of travel for persons entering and exiting the building.  The court also emphasized that the irregularity in the area where the Plaintiff fell was located right in the middle of where the public would be expected to step before descending the steps out of a busy, heavily traversed public building.  

Judge Gray held that the question of whether or not allowing the defect in question to exist at that location constituted negligence, was a question that should be decided by a jury. 

Judge Gray further found that the Plaintiff’s testimony was sufficient to also raise a question of fact for the jury to determine whether or not the cause of her fall was indeed the defect in question.  

For these reasons, the Defendant’s Motion for Summary Judgment was denied.  

 
Anyone desiring a copy of this Lycoming County decision in the case of Walker v. Community Action Realty, Inc. may contact me at dancummins@comcast.net.