Friday, December 19, 2014



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Wednesday, December 17, 2014

"Did Your Attorney Refer You to that Doctor?"

A Dynamic Duo
(Could be on either side of the bar)

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel. 

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans.  Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.

In his Opinion issued on the matter, President Judge Kenney held that, "whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege."  More specifically, the court found that whether an attorney referred his client to a medical provider for treatment can not be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.
President Judge Kenney also stated that any asserted privilege "failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process" at a trial of a personal injury matter.
The Court granted Defendant's Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

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

I send thanks to Attorney Joseph A. McNelis, III of the Willow Grove, PA  law firm of Palmer Barr for bringing this decision to my attention.

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Tuesday, December 16, 2014

PA Supreme Court Upholds Assignment of Rights in Excess Bad Faith Claims

Tort Talkers may recall previous posts on the case of Allstate Ins. Co. v. Wolfe, in which the Pennsylvania Supreme Court accepted an issue to review on certification of a matter from the U.S. Third Circuit Court of Appeals who was seeking guidance on the question of the validity of assignment of bad faith claims by third party tortfeasors hit with excess verdicts to injured party plaintiffs seeking to recover on the amounts due over and above the tortfeasor's liability insurance policy limits.

As anticipated by many watching out for the Pennsylvania Supreme Court's decision in the case of Allstate Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014)(Op. by Saylor, J.)(Castille, C.J, Dissenting Without Opinion), the Court ruled that a third party defendant tortfeasor hit with an excess verdict in a trial on personal injuries arising out of a motor vehicle accident may assign to the plaintiff his potential rights to sue his own automobile liability insurance carrier for a bad faith refusal to settle the case prior to trial.

The Supreme Court "conclude[d] that the entitlement to assert damages under Section 8371 may be assigned by an insured to an injured plaintiff and judgment creditor such as Wolfe.  Having answered the certified question, we return the matter to the Third Circuit."

Bad Faith is assignable?
"No kidding!"

Anyone wishing to review a copy of the Supreme Court's decision may click this LINK.

I send thanks to Attorney Tom Wilkinson, Jr. of the Philadelphia office of Cozen & O'Connor and Attorney Scott Cooper of the Harrisburg office of Schmidt Kramer for bringing this decision to my attention.


Monday, December 15, 2014

Dated UIM Rejection Form Signed by Insured Valid Even Though Insured Was Not the One Who Dated It

Can't Go For That

In a December 10, 2014 Memorandum Opinion out of the Federal District Court for the Eastern District of Pennsylvania in the case of Lieb v. Allstate Prop. And Cas. Ins. Co., NO. 14-4225 (E.D. Pa. Dec. 10, 2014 Rufe, J.), the court upheld the validity of a UIM rejection form even though the insured was not the one who dated the document.

According to the Opinion, this case involved a motor vehicle accident after which the Plaintiff secured a third party settlement and then pursued a UIM claim.

The UIM carrier rejected the claim on the basis of a valid rejection of UIM coverage form having been executed by the insured. 

The Plaintiff argued that the rejection form was void because the form was not dated by the insured, only signed.  According to the Opinion, the date was pre-printed on the form.

The Court held that that the rejection form was valid given that the form met all of the statutory requirements.

After reviewing the MVFRL, and in particular, the language of Section 1731, the Court noted that the statute only required that the form “must be signed by the first named insured and dated to be valid.” 

In other words, the statute does not require that the “form must be signed and dated by the first named insured.”

Accordingly, the court found that no requirement existed for the insured to actually date the form.  As such, since the UIM rejection form was signed by the insured, the Court held that the form was valid.
Anyone wishing to review this Memorandum Opinion may click this LINK.  The Court's companion Order can be viewed HERE.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Friday, December 12, 2014

Year-End Pennsylvania Civil Litigation Reveiw Article

The below article of mine is an updated version of a year-end review article (with its original title) that was published in the November 25, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from the Publisher, American Law Media:


A Review of Important Civil Litigation Cases and Trends in 2014


Daniel E. Cummins

As another year of Pennsylvania jurisprudence comes to an end, a look back reveals a number of the same issues and trends that have dominated the headlines in recent years.  As some say, the more things change, the more they remain the same.

 Right to a Fair Jury

Among the more notable cases from the past year is the Pennsylvania Superior Court’s decision in the  medical malpractice case of Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), in which that court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that party’s peremptory challenges.
According to the Opinion, the jury that resulted in the Cordes case included a husband of a patient of the defendant doctor, the daughter of a patient of the defendant doctor, and an employee of the parent medical corporation whose subsidiary employed the defendant doctor.  
The Opinions issued by the Cordes court all essentially agree with the notion that an important goal of jury selection is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of partiality to a disinterested observer.  
In the end, it was held that the trial court erred in refusing, after the exhaustion of a party’s peremptory challenges, to strike for cause those jurors who had a close relationship to a Defendant doctor and/or were employed by the same company as that doctor despite those jurors’ assurances of impartiality.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.

Jury Instructions in Post-Koken Matters

Continuing on the topic of jury issues, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued the first detailed opinion in Pennsylvania outlining the type of jury instructions he would provide to a jury in a Post-Koken automobile accident matter involving an insurance company defendant.
In the case of Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Nealon reviewed cases from within and without Pennsylvania to formulate even-handed jury instructions informing the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims presented as opposed to the type of parties involved.

Expert Discovery

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.
On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

 Delay Damages

In a case of first impression, the Pennsylvania Superior Court ruled in Roth v. Ross and Erie Insurance Group, 85 A.2d 590 (Pa. Super. Feb. 7, 2014), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages after a verdict.
The Superior Court ruled that the wording of Rule 238 was clear and unambiguous in requiring the addition of delay damages to the verdict in all civil cases where a plaintiff seeks monetary relief for bodily injury.  Future medical expenses were, "by definition," part of the monetary relief for bodily injuries caused by the subject accident and, as such, should be included in the delay damages calculation.

Federal Court Jurisdiction Over Insurance Coverage Questions

The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has described the case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), as being the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.

While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court. 
Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  In this Reifer Opinion, the Third Circuit went on to clarify the factors that a district court should consider in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage can be anticipated. 

Another Short-Handed High Court

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again, which is an obscene situation in more ways than one.

Hopefully, the unfortunate recurrence of this situation of a short-handed court may serve as an impetus for the Court to adopt a plan whereby, whenever the Court has less than seven Justices, a randomly selected Commonwealth Court Judge could be selected to sit on an appeal of a Superior Court decision before the Supreme Court, and vice versa. 
Perhaps the time has also come to revisit the notion of a merit selection of Pennsylvania state court judges similar to the method utilized to select federal court judges.
In the meantime, Chief Justice Castille and the Supreme Court are going out with a bang with the Chief Justice’s important opinions issued in November in the case of Tincher v. Omega Flex, Inc., in which the court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis, and in the case of Zauflik v. Pennsbury School District, in which the Court upheld the constitutionality of the statutory caps protecting local governmental agencies in personal injury tort claims.

Cell Phone Use

The year 2014 brought forth a number of decisions on the viability of a punitive damages claim based upon a distracted  defendant driver’s use of a cell phone at the time of an accident.  The decisions show that this issue will be decided on a case-by-case basis.
In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.  The court reviewed essentially ruled that allegations of the mere use of a cell phone while driving, without more, does not amount to factual support sufficient to sustain claims of recklessness or for punitive damages. 
In contrast, in a recent Luzerne County decision in the case of Gugliotti v. O'Rourke, No. 2012-CV-15133 (C.P. Luzerne Co. 2014 Burke, P.J.), President Judge Thomas F. Burke, Jr., by Order only, denied a defendant's preliminary objections and allowed the plaintiff’s punitive damages claim to proceed in a cell phone/auto accident case.
According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted that he rear-ended the plaintiff's car while in the process of attempting to answer not one but two ringing cell phones in his possession.
Also, according to a June 13, 2014 article by Zack Needles in The Legal Intelligencer entitled "Judge OKs Punitives Claim for Cellphone Use in  Crash Case," Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted an unopposed motion to amend a Complaint filed by a plaintiff in the case of Simmons v. Lantry to add punitive damages claims in a case involving a tractor trailer driver who was allegedly distracted by his cell phone use at the time of an accident.

Collateral Estoppel Against UIM Claim After Third Party Resolution

 Another hot issue in the past year that troubled litigators was the repeated application of  the doctrine of collateral estoppel by Pennsylvania courts preclude a plaintiff from proceeding on additional claims arising out of the same accident.
In his January 15, 2014 Opinion in the case of Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.),  Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine.  In this case, the plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first and the arbitrator entered an award that was less than the tortfeasor’s liability limits.
Similarly, in USAA v. Hudson, 101 Del. 154 (C.P. Del. Co. Feb. 21, 2014), the Delaware County Court of Common Pleas ruled that the collateral estoppel doctrine precluded a subsequent UIM claim for the same accident when the same issue was previously litigated and an award was entered for less than the tortfeasor’s liability limits.
In his decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, 8 F. Supp. 3d 666 (E.D. Pa. March 26, 2014 Joyner, J.), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side where the agreed upon high parameter was below the third party liability limits and where the arbitration award was entered below that high parameter.
In her decision in the Post-Koken case of Gallagher v. Ohio Casualty Ins. Co., No. 13-0168 (E.D. Pa. April 9, 2014), Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District went even further and found that, while a non-binding ADR result did not amount to collateral estoppel, the first settlement nevertheless served to preclude a follow-up UIM claim for the same accident.
In a slightly different collateral estoppel context raised in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit.   More specifically, the plaintiff was precluded from seeking a recovery for additional injuries in a lawsuit where it was judicially determined in the prior worker’s compensation matter arising out of the same accident that he only sustained cervical spine injuries.

 A Look Ahead

Several important decisions are anticipated in the year ahead.  First, litigators await a decision from the Pennsylvania Supreme Court in the criminal court case of Commonweath v. Koch on the proper authentication and admissibility of text messages may serve as the seminal case on the admissibility of other forms of digital and/or social media evidence.
The auto law bar is also anxiously awaiting the Pennsylvania Supreme Court’s decision in the case of  Allstate Prop. and Cas. Co. v. Wolfe, No. 23 MM 2014 (Pa. April 24, 2014) on the issue of whether “[u]nder Pennsylvania law, can an insured tortfeasor assign his or her bad faith claim against an insurer, under 42 Pa.C.S. § 8371, to an injured third party?"
These anticipated decisions, as well as expected lower court decisions in Post-Koken auto accident matters and social media discovery issues should keep matters interesting for litigators in the year ahead.

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at

Wednesday, December 10, 2014

Another Appellate Criminal Court Decision With Civil Litigation Implications: A Question Can Be a Hearsay 'Statement'

The Pennsylvania Superior Court has handed down a criminal court decision which could have implications in the trial of a civil litigation matter.  

In a case of first impression entitled Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.   

According to the Opinion, the Defendant sought to have statements made by a victim to his grandmother shortly before the victim was shot and killed ruled as inadmissible hearsay.  Some of the statements at issue were in the form of a question by the victim. 

In its Opinion, the Pennsylvania Superior Court noted that, while the issue raised by the Defendant had been addressed by many other courts, no consensus had been reached.  Also, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had not yet addressed the issue.

Some of the other courts that have addressed the issue have taken the position that a true question or inquiry is, by the nature of itself, incapable of being proved either true or false and, therefore, cannot be offered ‘to prove the truth of the matter asserted’ such that it does not constitute a “hearsay statement” by definition.  

The Pennsylvania Superior Court went in a different direction and instead elected to follow those jurisdictions that have held that a question can be considered to be hearsay if it contains an implied assertion offered for the truth of the matter.   The court noted that “[t]his approached ensures that the substance of an utterance, not its grammatical form, controls whether the utterance is admissible."

Accordingly, the court ruled that, when a question includes an implied assertion, the question constitutes a statement of purposes of Pennsylvania Rule of Evidence  801(a).   If such a question/statement is offered for the truth of the matter asserted, it is hearsay and generally inadmissible unless an exception to the hearsay rule is implicated.

Obviously, this Pennsylvania appellate court ruling on the Hearsay Rule under the Pennsylvania Rules of Evidence could have an impact in civil litigation matters and, as such, is reported here on Tort Talk.

Anyone wishing to review this Commonwealth v. Parker decision, may click this LINK.  


Monday, December 8, 2014

Another Recent Lamp v. Heyman Service of Process Case

In his recent decision in the case of Fritzinger v. Duhart, PICS Case No. 14-1850 (C.P. Monroe Co. Nov. 6, 2014 Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas granted a Defendant’s Preliminary Objections and dismissed the Plaintiff’s Complaint in a personal injury action where the Plaintiff failed to make a good faith effort to perfect service of a Writ of Summons upon a Defendant.  

Judge Arthur Zulick
Monroe County
According to a summary of the Opinion, the Plaintiff commenced this automobile accident litigation with a Writ of Summons on November 20, 2012.   This action was filed within the statute of limitations.   The court noted that the docket did not reflect any attempt to serve the Writ of Summons at that time.  

The court also noted that there is no evidence of any effort by the Plaintiff to serve the Writ upon the Defendant until after new counsel entered an appearance 19 months later on June 6, 2014.  

Relying upon the Pennsylvania Supreme Court decision in the case of Lamp v. Heyman, the court found that there was no indication that the Plaintiff’s first counsel acted in attempting a good faith effort to serve the Writ.   Since the failure to serve the Writ evidenced an intention to stall the judicial machinery as prohibited by the Pennsylvania Supreme Court in Lamp v. Heyman, Judge Zulick granted the Defendant’s Preliminary Objections and dismissed the Plaintiff’s Complaint.  

Anyone desiring a copy of this Opinion may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above-referenced PICS case number and paying a small fee.  


Source:  Pennsylvania Law Weekly Digest of Recent Opinions (November 25, 2014).  
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