Negligent Infliction of Emotional Distress Claim Allowed to Proceed in Medical Malpractice Claim

In the case of Murga v. Lehigh Valley Physicians Group, No. 2016-C-1691 (C.P. Leh. Co. Nov. 26, 2018 Johnson, J.), the court found that the Defendants were not entitled to summary judgment on the Plaintiff’s claim for negligent infliction of emotional distress because the Plaintiff sought relief under multiple plausible theories and given that the case for summary judgment was not free and clear from doubt.  

In this matter, the Plaintiff alleged a medical malpractice claim against the Defendants for negligent infliction of emotional distress in connection with a miscarriage that the Plaintiff had suffered.  

The Defendants moved for a partial summary judgment, arguing that the Plaintiff’s negligent infliction of emotional distress claim failed because her alleged emotional injuries were not foreseeable and given that the Plaintiff allegedly did not observe a discrete traumatic event contemporaneously with the Defendants’ alleged negligence.   The Defendants also argued that a buffer of time and space existed in connection with the Plaintiff’s miscarriage and the delivery of her deceased fetus.  

In response, the Plaintiff argued that her claim for negligent infliction of emotional distress was appropriate under multiple theories of recovery, including a duty of care arising from a special relationship, under the physical impact theory, as well as under the bystander theory.  

The court denied summary judgment finding that it was not free and clear from doubt that the Defendants were entitled to the same.   The court cited to numerous Pennsylvania cases which permitted recovery for negligent infliction of emotional distress under the various theories asserted by the Plaintiff under similar circumstances.   

As such, the Motion for Partial Summary Judgment filed by the Defendants was denied.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Alleged Low-Ball UIM Offer Not Per Se Bad Faith

In the cases of Clarke v. Liberty Mutual Insurance Company, 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Dec. 12, 2018Caputo, J.), the court again addressed Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases are ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court noted that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

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

The Moran decision can be viewed HERE

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.   

Appeal Quashed Where Summary Judgment Entered In Favor of Less Than All Defendants

In the case of Massaro v. Tincher Constr., 2019 Pa. Super 44 (Pa. Super. Feb. 19, 2019 Bender, P.J.E., Nichols, J., Stevens, P.J.E.), the Pennsylvania Superior Court addressed the propriety of an appeal from an Order entering summary judgment for less than all of the Defendants.  

The court ruled that an appeal from an Order entering summary judgment for one (1) Defendant but not other Defendants was not immediately appealable under the Pennsylvania Rules of Appellate Procedure.   The court also noted that, since no request for permission to appeal had been submitted to either the trial court or the appellate court, the appeal from the summary judgment order was quashed.  

The Majority Opinion of the Superior Court by Judge Nichols can be viewed HERE.

The Dissenting Opinion by President Judge Emeritus Bender can be viewed HERE.

 

Source:  “Court Summaries” by Timothy L. Clawges Pennsylvania Bar News (March 18, 2019).  

Preliminary Objections Granted Based Upon Failure to Complete Service Prior To Expiration of Statute of Limitations

In the case of Gussom v. Teagle, April Term, 2018, No. 03821 (C.P. Phila. Co. Jan. 3, 2019 Patrick, J.), the court granted a Defendant’s Preliminary Objections seeking the dismissal of a Plaintiff’s Complaint for failure to complete service before the expiration of the statute of limitations.  

This matter arose out of a motor vehicle accident that occurred on July 26, 2016.   The Plaintiff filed a Complaint against the Defendant on April 26, 2018.   The Plaintiff was unable to complete service at the Defendant’s last known address in Philadelphia.  According to the Affidavit of Non-Service, the occupant of the last known address for the Defendant stated that the Defendant had relocated to Virginia.  

Several months later on August 22, 2018, which was after the expiration of the statute of limitations, the Plaintiff filed a Praecipe to Reinstate the Complaint. The defense responded with Preliminary Objections to the Complaint filed in September of 2018.  

The Plaintiff did not respond to the Preliminary Objections. Instead the Plaintiff filed another Praecipe to Reinstate the Complaint in September of 2018.

The court sustained the Defendant’s Preliminary Objections in October of 2018, dismissing the Plaintiff’s Complaint in its entirety.   Two days later, the Plaintiff filed a Motion for Reconsideration which was also denied.  

The court reviewed Pennsylvania law requiring a good faith effort to complete service once an action was commenced.   The court found, in its sound discretion, that, under the facts presented, the Plaintiff’s inaction demonstrated and intent to stall the judicial machinery that the Plaintiff had set in motion.  

More specifically, the court pointed to the fact that, after the Plaintiff’s unsuccessful attempt to serve the Defendant at his last known address, there were no further efforts by the Plaintiff to locate and serve the Defendant.   The court also faulted the Plaintiff for not attempting to serve the Defendant by alternative means.   The court additionally noted that the two (2) Praecipes to Reinstate the matter were not filed timely.   

The court also pointed out that the Plaintiff did not file an Affidavit of the eventual completion of service until after the court had already sustained the Defendant’s Preliminary Objections.   The court found that, overall, the Plaintiff had failed to act in good faith in the efforts to complete service.  

The court also rejected the Plaintiff’s Motion for Reconsideration as no new facts or evidence were presented that would excuse the Plaintiff’s lack of a good faith effort to complete service on the Defendant prior to the expiration of the statue of limitations. 

Anyone wishing to review this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 29, 2019).

Scope of Allowable Bad Faith Discovery Limited by Western District Federal Court of Pennsylvania

In the case of Horvath v. Globe Life & Accident Ins. Co., No. 3:18-CV-84 (W.D. Pa. Feb. 28, 2019 Gibson, J.), the court denied a Plaintiff’s Motion to Compel a Defendant carrier in a bad faith claim to identify all bad faith suits in which it was involved over the preceding ten (10) years.  

In denying this Motion to Compel by the Plaintiff, the court essentially ruled that the other, prior bad faith claims were irrelevant to the case at hand.   Judge Gibson found that there was no close “connection between other bad faith claims against Defendant and the issue of materiality here, particularly considering the myriad of potential factual differences between other claims and the present claim, including different types of policies, unique policy language, the application of different states’ law, [and] varying circumstances surrounding the bad faith allegations…..” 

Judge Gibson additionally noted that “the general rule [is] that courts in the Third Circuit ‘disfavor the discovery of similar claims evidenced in bad faith cases.’”  

The court additionally denied this Motion to Compel evidence of ten (10) years of prior bad faith actions as overbroad and unduly burdensome given that there was no geographic limit, no limit to the type of insurance policy at issue, no valid explanation as to why a ten (10) year period was required or why a shorter period would be inadequate.  

Anyone wishing to review this decision may click this LINK.  

I send thanks to Attorney Lee Applebaum of the Fineman, Krekstein & Harris law firm in Philadelphia for bringing this case to my attention.   Check out Attorney Applebaum’s excellent blog entitled Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.   

Lehigh County Trial Court Refuses to Open Default Judgment

In the case of Cruz v. The Midwives & Assoc., Inc., No. 2017-C-3103 (C.P. Leh. Co. Dec. 3, 2018 Johnson, J.), the court ruled that the Defendants were not entitled to open a default judgment where their failure to timely file a responsive pleading was not excusable.   

In this matter, after the filing and service of a Writ of Summons and a Complaint, the Defendants failed to file a responsive pleading.   The Plaintiff then issued a 10-Day Notice of Intent to Enter a Default and, when the Defendant did not file any pleading, the Plaintiff entered a default judgment.  

The court noted that the Defendant did not file a Petition to Open a Default Judgment until twelve (12) days later.  

The court noted that, under Pa.R.C.P. 237.3(b)(2), if a Petition to Open a Default Judgment is filed within ten (10) days after the entry of the default judgment, the court “shall” open the judgment if the proposed Answer states a meritorious defense. 

Where, as here, a Petition to Open a Default Judgment is filed more than ten (10) days after the entry of a default judgment, the court will only exercise its discretion to open the judgment if (1) the petition has been promptly filed, (2) a meritorious defense has been shown, and (3) the failure to appear or respond can be excused.   

Here, the court found that Defendants’ Petition to Open the Judgment was promptly filed and that a meritorious defense had been stated.  

However, the court determined that the Defendants’ failure to file an Answer could be not excused under the circumstances presented.   Here, the Defendant admitted that they were aware that they were not covered by insurance at the time of the subject incident such that the Defendant knew that no insurance company would provide it with an attorney.   The court also noted that the Defendant did not take any action even after receiving the 10-Day Notice.   It was indicated that the Defendants only sought out legal counsel after the default was entered.  

As such, the court found that the circumstances of this case did not amount to any mere oversight or an unintentional omission to act.   Rather, the Defendants were found to have received multiple notices informing them of their obligation to participate in the case and the consequences for failing to do so.  Despite these notices, the Defendants did not act or file an Answer to the Complaint.  

As there was no reasonable excuse or explanation provided by the Defendants for failing to respond to the Complaint, the court denied the Defendants’ Petition to Open the Default Judgment.  

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Judge A. Richard Caputo of Federal Middle District Court of Pennsylvania Addresses Proper Pleading of Bad Faith Claims in Two Separate Decisions

In the cases of Clarke v. Liberty Mutual Insurance Company, No. 3:18-CV-1925 (M.D. Pa. Feb. 11, 2019 Caputo, J.), and Moran v. USAA, No. 3:18-CV-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.), the court again addressed refiled Motions to Dismiss Bad Faith Claims and granted the same, thereby dismissing these cases with prejudice.  It is noted that the Complaints in these two (2) cases were previously dismissed by Judge Caputo without prejudice and the Plaintiff was granted leave to amend.   In these most recent decisions, the cases were both ended by the court’s decision in favor of dismissal.  

In the case of Clarke v. Liberty Mutual Insurance Company, the court confirmed that a discrepancy between the alleged damages and the carrier’s evaluation alone does not amount to bad faith.   

More specifically, the Plaintiffs alleged that, since the Plaintiff’s medical bills totaled over $39,000.00 and given that the Plaintiff may require additional injections in the future, the Defendant carrier was alleged to have engaged in bad faith in concluding that the claim fell within the $15,000.00 third party settlement.  

The court followed previous decisions in which it had been held that alleged “low-ball” offers alone cannot support a claim for bad faith.  Rather, a Plaintiff must allege factual allegations to show why the alleged “low-ball” offer was actually unreasonable and how the carrier knew or recklessly disregarded the fact that it was unreasonable.  

Finding that such claims were not made in the Clarke case, the court granted the Motion to Dismiss.  

A similar ruling was entered by Judge Caputo in the Moran v. USAA case where he again found that a discrepancy in the evaluation of the claim alone does not get around the issue of the Plaintiff pleading a bad faith claim in a conclusory fashion.  

Anyone wishing to review a copy of the Clarke decisions may click this LINK.\

The Moran decision can be viewed HERE.

I send thanks to Attorney Brigid Q. Alford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman and Goggin for bringing this case to my attention.