Friday, January 18, 2019

Personal Injury Medical Expenses and Wage Loss Evidentiary Issues Addressed by Pennsylvania Superior Court

In the case of Mader v. Duquesne Light Co., No. 609 W.D.A. 2018 (Pa. Super. Nov. 30, 2018 Murray, Bender, Shogan, J.) (Op. by Murray, J.), the Pennsylvania Superior Court addressed several trial issues pertaining to damages in a personal injury matter.   In the end, the court affirmed in part and reversed in part the trial court’s granting of post-trial motions after a verdict in favor of the Plaintiff.  

The court noted that Stipulations between the parties as to the amount of recoverable medical expenses are binding upon the court as well as upon the parties reaching such a stipulation. As such, the Superior Court ruled that an award of stipulated medical expenses was supported by the record.

The court also found that the jury’s award for future medical expenses was reasonable, even though it was closer to the projections offered by the defense in evidence.  

The Superior Court noted that the jury apparently resolved the conflicts in the testimony and found the Defendant’s evidence on future medical expenses to be more credible.   As such, the Superior Court found that the trial court’s granting of a new trial based upon alleged inadequacy of the future medical expenses award was an abuse of the trial court’s discretion.  

The court also noted that the granting of a new trial on one category of damages does not, in and of itself, justify a new trial on a different category of damages.   

In that regard, relative to the wage loss claims, the Superior Court found that, since the experts of both parties testified as to the Plaintiff’s inability to perform his job following the accident, the court found that the jury’s failure to award any lost wages to the Plaintiff justified a new trial in this particular category of damages.  

While the Superior Court found that an alleged failure on the part of the Plaintiff to seek alternative employment following an accident and thereby mitigate the damages alleged, can justify a lower award for wage loss, such evidence did not support a finding that the Plaintiff should not be awarded any wage losses at all.

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

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


Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, will be providing encore presentations of a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" for both the Lackawanna Bar Association and the Monroe County Bar Association in February, 2019.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this Lunch and Learn CLE seminar at the Monroe County Bar Association office located at 913 Main Street, Stroudsburg, PA 18360 on Wednesday, February 20, 2019 with lunch beginning at 11:30 am and the CLE program beginning at 12 noon.

The cost to attend the Monroe Bar Association CLE is $30 for Members, $25 for Monroe Co. YLD members, and $35 for non-Members.  Please contact the Monroe County Bar Association at 570-424-7288 or by contacting the Executive Director of the Bar, Denise Burdge at to register.

The Lackawanna Bar Association presentation will take place as a Lunch and Learn as well on Thursday, February 28, 2019 beginning at 12 noon at the Bar Association offices at 233 Penn Ave., Scranton, PA 18503.

Lackawanna Bar Members may attend the CLE at no charge.  The fee for non-Members is $60.  To RSVP and/or register, please email .

The Lackawanna County CLE Lunch & Learn program for this particular event is sponsored by Cummins Mediation Services.  Please contact me at or at 570-346-0745 should you wish to set up a Mediation to bring your case to a close.

Thank you to Joe Cardoni at Exhibit A for helping with
the technical aspects of the Powerpoint presentation.

Thank you to Network Deposition Services for assisting with
the playback of the Powerpoint presentation.


Wednesday, January 16, 2019


High School Mock Trial Competition is upon us all across the Commonwealth of Pennsylvania.  Hoping you might consider serving as a Juror in the Competition in your County. 

Serving as a Juror can be a great learning experience and a rewarding endeavor for just a couple of hours of your time for a good cause.  Here is a LINK to my article extolling the benefits attorneys can realize from participating in the program for the benefit of high school students all across Pennsylvania.

Please consider checking in with your County Bar Association for more details on the Mock Trial Competition in your County.  Let's fill those Jury Boxes with attorneys willing to help give these students a great experience.

There are no CLE credits available for Mock Trial Competition participation yet, but I am helping a movement to work on that.  Here's a LINK to the Tort Talk blog post on the status of that movement.

Below are the dates for the Mock Trial Competition in LACKAWANNA COUNTY and information on how to register to serve as a Juror.  Many attorneys are needed to fill many Jury Boxes on the following dates in Lackawanna County:

Trial Dates:

Round I
Tuesday, January 29, 2019 at 6:00 p.m.

Round II
Wednesday, February 6, 2019 at 6:00 p.m.

Makeup Round
Tuesday, February 12, 2019 at 6:00 p.m.

Wednesday, February 20, 2019 at 6:00 p.m.

Wednesday, February 27, 2019 at 6:00 p.m.

Please contact Ryan Campbell, Esq. at
Katie Munley, Esq. at 
To Volunteer or for more information.

Split of Authority on Severing Bad Faith Claims in Allegheny County Post-Koken Matters Continues

In the case of Stoots v. Mutual Benefit Ins. Co., No. GD 16-024731 (C.P. Allegh. Co. Dec. 7, 2018 Colville, J.), the court granted a carrier's Motion to Sever and Stay the Bad Faith portion of this Post-Koken matter by Order only.

This Order can be viewed HERE.

As such, a split of authority in Allegheny County continues on this particular issue.  The split authority also continues all across the Commonwealth in the continuing absence of appellate guidance on whether bad faith claims should be severed and stayed in Post-Koken matters until the underlying UIM or UM claim is resolved first. 

According to the cases listed in the Post-Koken Scorecard on, a vast majority of the county courts have ruled in favor of severing the bad faith claims.  The Scorecard can be accessed by going to Tort Talk and scrolling down the right hand column til you see "Post-Koken Scorecard."  Click on the date under that title and you will be taken by Link to the Scorecard.  Here's a quick LINK to the Scorecard for your easy reference.

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh law firm of Zimmer Kunz, PLLC for bringing this decision to my attention.

UIM Bad Faith Complaint Allowed To Stand

In the case of Baldridge v. GEICO, No. 18-CV-1407 (W.D. Pa. Dec. 3, 2018 Schwab, J.), the court denied a Defendant’s Motion to Dismiss the Plaintiff’s Complaint in a bad faith claim.

The court found that the Plaintiff adequately pled a statutory bad faith claim in this UIM case based upon allegations of improper claims handling.  

According to the Opinion, the Plaintiff alleged serious injuries, extensive treatment, and over a million dollars in lost wages and benefits.  

The Plaintiff complained that, although he voluntarily provided the carrier with medical records, sworn statement, other information, and also participated in an IME, the carrier allegedly did not respond to the Plaintiff for three (3) months and then abruptly denied the claim presented.  

The court found that the Plaintiff pled sufficient facts to support allegations both that the Defendant lacked a reasonable basis for denying the Plaintiff’s claim for UIM benefits and that the Defendant allegedly knew or recklessness disregarded its lack of a reasonable basis in denying the claim. 

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

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

Lessons in Bad Faith Complaint Drafting From Several Federal Middle District Court Decisions

As reported in the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog by Attorney Lee Applebaum, there were three (3) recent Federal Middle District Court of Pennsylvania Opinions handed down in December, 2018 in which the court found that the Plaintiff’s bad faith pleadings constituted conclusory allegations that had to be dismissed under the standard of review pertinent to validity of federal Complaints.  However, the Plaintiffs in all of these cases were permitted to file Amended Complaints.  All of the cases involved UIM claims.  

These cases include the following (click on the case name to be linked to the actual opinion):

Clark v. Liberty Insurance Company, No. 3:18-cv-01925 (M.D. Pa. Dec. 10, 2018 Caputo, J.) (an insured’s belief about a claims value that differs from the carrier’s evaluation is not enough to state a claim without actual facts objective supporting that belief; the failure to make a settlement offer after receiving documents is not bad faith without additional factual support such as facts pertaining to the complexity of the claim and the time that past between the date the information was supplied and the date that the Complaint was filed; the failure to submit to policy limits demands alone is not bad faith)

Moran v. USAA, No. 3:18-cv-02085 (M.D. Pa. Dec. 12, 2018 Caputo, J.) (general pleading delays on the part of the carrier in various respects and failure to act in good faith dismiss due to failure to plead supporting factual allegations). 

Winslow v. Progressive Specialty Ins. Co., No. 3:18-cv-01094 (M.D. Pa. Dec. 12, 2018 Rambo, J.) (conclusory allegations of bad faith lead to dismissal of Plaintiff’s Complaint on claims of bad faith pertaining to delays by the carrier and failures to make reasonable settlement offers or to pay the limits).  

Monday, January 14, 2019


I am republishing the below post at the request of Lackawanna Pro Bono.  I plan to attend the meeting as well unless I get jammed up by a doctor's deposition currently scheduled for the same time.  

Have no fear--this is just an informational meeting.  No commitments will be imposed.  Hope to see you there.  Thanks.

Please Join Members of the Judiciary,
Current Volunteers & Lackawanna Pro Bono Staff
for a
Pro Bono Volunteer Informational Session
Thursday, January 17, 2019
at 3:30 PM
Jury Lounge,
Lackawanna County Courthouse
or by calling
See You There!