Thursday, September 21, 2017

Court Finds No Liability Regarding Provision of Driving Directions



In the case of Garlick v. Anadarko Petroleum Corp., No. 4:12-CV-01166 (M.D. Pa. Aug. 15, 2017 Brann, J.), Judge Matthew W. Brann of the Federal Middle District Court of Pennsylvania granted summary judgment in favor of the defense in a case where the Plaintiff's decedent was involved in a nighttime accident while following directions provided by another. 

Judge Matthew W. Brann
M.D. Pa.

The court reasoned that a defendant cannot be liable under the Restatement (Second) of Torts §323 pertaining to a negligent undertaking with respect to providing driving directions to the Plaintiff’s decedent.   The court noted that providing direction to another person does not create an undertaking to do anything more such as a erecting directional signs on public roads or other steps.   The court also noted that there is no duty to provide the safest route possible.  

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


I send thanks to Attorney James Beck of the Philadelphia law office of Reed Smith for bringing this case to my attention.  

Monday, September 18, 2017

Landlord Not Liable for Criminal Acts Off the Leased Premises


In the case of Bonacci v. Pal, No. 2015-CV-4501 (C.P. Lacka. Co. Aug. 25, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a residential landowner’s demurrer in a wrongful death case on the issue of whether such a landlord may be found liable under Pennsylvania law for a fatal shooting that involved his tenant as an accomplice, but which shooting occurred miles away from the leased premises.  

In his Opinion, Judge Nealon reviewed the law that holds that a landowner in the Commonwealth of Pennsylvania has a duty to protect tenants and third parties from foreseeable criminal attacks on the leased property if the owner had promised or undertaken to provide certain security as an additional precaution.  However, a residential property owner can be liable for physical harm to others outside of the land only if the harm was caused by the dilapidated condition of the structure or a dangerous artificial condition upon it.  

In his research, Judge Nealon found no Pennsylvania case which has imposed liability upon a residential landowner for criminal conduct that causes harm well beyond the geographic boundaries of the leased premises. 

Accordingly, since the fatal shooting at issue in this case occurred more than a mile away from the leased premises, and since the Plaintiff did not allege that the incident resulted from any physical defect in the residential structure or any artificial condition thereon, the court agreed that the Complaint failed to state a cause of action against the Defendant-landowner in this regard, and as such, the Defendant-landowner’s demurrer was granted.  

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

Friday, September 15, 2017

CUMMINS MEDIATION SERVICES



After realizing recent successes in bringing personal injury civil litigation cases to an amicable resolution while serving as a Federal Court Mediator for the Middle District, I wish to offer my services for private non-binding Mediations.

In addition to my own personal experience at Mediations over the past 17 years both as a litigator and as a Mediator, I have attended several continuing legal education courses focused on the development of skills and tools designed to foster ongoing negotiations and success at Mediations.

I welcome the opportunity to assist you in bringing your case to an amicable resolution. 



Resume and fee schedule are available upon request.  I can be reached at dancummins@comcast.net and at 570-346-0745.

Thank you,

Dan Cummins




Summary Judgment Granted in Bad Faith Claim Where Delays in Claims Process Caused, In Part, by Insured


In the bad faith decision of Doherty v. Allstate Indem. Co., No. 15-05165 (E.D. Pa. April 6, 2017 Pappert, J.), the court granted the carrier summary judgment in a claim arising out of allegations of poor investigation and claims handling by the carrier.  

The case arose out of a landlord property insurance policy issued to an insured who owned multiple rental properties leased out to college students.  

In a lengthy Opinion in which the court summarized the current status of bad faith law concerning investigation and claims handling claims, the court granted summary judgment finding that there existed no clear and convincing evidence that the insurer acted in bad faith.  

Rather, the court found that the record made clear that the carrier’s delays were instead attributable to mistakes and possible confusion on the claim, along with, in part, the insured’s obfuscation and refusal to cooperate with the claims representative in the investigation into the claims presented.  

The court otherwise opined that the record revealed that the carrier conducted adequate investigation and had a reasonable basis for denying any coverage.   The court noted that any delays on the part of the insurer were attributable, in part, to the insured’s repeated failure to provide information necessary to open a claim.

Anyone wishing to review this decision may click this LINK.

 
I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.  

 







Wednesday, September 13, 2017

Eastern Federal District Court Denies Motion to Bifurcate Bad Faith Claim from UIM Breach of Contract Claim


In the case of Jones-Silverman v. Allstate Fire & Casualty Ins. Co., No. 17-1711 (E.D. Pa. July 31, 2017 Baylson, J.), the Eastern District Federal Court denied a carrier’s Motion to Bifurcate a Plaintiff’s UIM breach of contract and bad faith claims. 

The court found that the required evidence of each of the claims overlapped such that a bifurcation would amount to a waste of judicial resources.  

The court also noted that, even if the parties settled their breach of contract claim, the insured could still pursue a bad faith claim based upon a theory of undue delay and claims handling.   Accordingly, the court found that the potential resolution of the breach of contract claim did not necessarily render a bad faith claim moot.  

The court otherwise ruled that it was equipped to address any issues of prejudice to the UIM carrier that may arise through the normal rules and procedures of litigation if the case was not bifurcated and a single trial was allowed.  

 As such, the court denied the carrier’s Motion for Bifurcation.

Anyone wishing to read this case online may click this LINK.


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog.   

Thursday, September 7, 2017

Several Medical Malpractice Issues Addressed by Judge Nealon of Lackawanna County



In the case of Hughes v. Wilkes-Barre Hospital Company, N. 2016-CV-6463 (C.P. Lacka. Co. Aug. 14, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues in a medical malpractice action including issues of allegedly improper venue, corporate negligence theory, agency law questions, and punitive damages issues. 
 
Of note, the court found the venue was proper in Lackawanna County based upon the existence of proper venue over the Lackawanna County Hospital and given the Plaintiffs’ assertion of joint and several liability against all named Defendants.  
 
Judge Terrence R. Nealon
Lackawanna County
The court additionally found that the Plaintiff stated valid causes of action for corporate negligence against the hospital Defendants along with valid claims for vicarious liability based upon the ostensible agency standard set forth in the MCARE Act.  
 
The court also reviewed the validity of claims of punitive damages pled in the case in form of allegations of recklessness and wanton conduct.  

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

 

Tuesday, September 5, 2017

Pennsylvania Superior Court Addresses Several Notable Trial Evidentiary Issues



In the case of Crespo v. Hughes, 2017 Pa. Super. 230 (Pa. Super. July 18, 2017 Ransom, Penella, Shogan, J.J.) (Op. by Ransom, J.), the Pennsylvania Superior Court addressed several civil litigation trial issues.

In this decision, the court confirmed that liability for loss of future income is established by evidence of shortened economic horizons, not actual income.  

Relative to the loss of future earnings claim, the appellate court also affirmed the trial court's exclusion of the plaintiff's alleged marijuana use as well as his alleged failure to pay child support.  The court agreed that any probative value of this evidence with respect to the wage loss claim was outweighed by the danger of unfair prejudice.

On a medical evidence issue, the Superior Court noted that a treating physician could give factual evidence of causation even without filing an expert report where that information was included in the doctor’s treatment notes.  

On another evidentiary issue, the appellate court confirmed that a conviction for receiving stolen property is crimen falsi crime that was admissible against the Plaintiff under Pa. R.E. 609).  

 Anyone wishing to review a copy of this decision may HERE.

I send thanks to Attorney James Beck of the Philadelphia law office of Reed Smith for bringing this case to my attention.