Thursday, July 21, 2016

Superior Court Finds Landlords May Be Liable For Failure to Install Smoke Detectors in Leased Premises

In the case of Echeverria v. Holley, 2016 Pa. Super. 119, No. 1342 WDA 2014 (Pa. Super. June 14, 2016 Olson, Gantman, Fitzgerald, J.J.) (Op. by Olson, J.), the Pennsylvania Superior Court ruled that a landlord may be held liable for failing to install smoke detectors under the general rule that landlords owe a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. 

The court noted that, since smoke detectors were required by law, failure to install them could be a negligent failure to maintain the property in a safe condition.  

The court also emphasized that claims of negligence and negligence per se are significantly different claims.   The court ruled that an amendment seeking to add a negligence per se claim to the Complaint after the expiration of the statute of limitation was barred as a matter of law where that particular claim did not relate back to another negligence claim pled.

The court also otherwise indicated that, to the extent that a claim for implied warranty of habitability was pled in a landlord-tenant personal injury context, only contract remedies would be available under that theory and not tort damages for personal injuries. 

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

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

Monday, July 18, 2016

Plaintiff Permitted to Discontinue Post-Koken Action Against Tortfeasor Over Objection of UIM Carrier

In a trial court Order entered by the Dauphin County Court of Common Pleas in the case of Phaler v. Ray and Westfield Insurance Company, No. 2014-CV-7332 (C.P. Dauph. Co. May 17, 2016 Bratton, J.), the court granted a Plaintiff’s Motion to Discontinue the post-Koken action against the tortfeasor Defendant over the objection of the UIM carrier. 

According to reports on the case, the UIM carrier attempted to compel the inclusion of the tortfeasor even though the tortfeasor had tendered his limits.  The argument raised was that the UIM carrier would be prejudiced during depositions and at trial if the tortfeasor was not forced to remain a party to the matter.  

In this Order issued by the court, the Plaintiff’s Motion for Partial Discontinuance in favor of the tortfeasor Defendant was granted and the tortfeasor Defendant was discontinued from the action with prejudice and his name was ordered removed from the caption.  

Anyone desiring a copy of this Order may contact me at

I send thanks to Attorney Stephen Franko for bringing this case to my attention.

Wednesday, July 13, 2016

Judge Nealon of Lackawanna County Affirms Validity of Pursuing Corporate Liability Claims in Med Mal Cases

Several notable issues were addressed by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in his recent decision in the case of Brink v. Marian Community Hospital, No. 13-CV-1314 (C.P. Lacka. Co. June 30, 2016 Nealon, J.).

Of particular note is that, in this detailed Opinion issued in a psychiatric medical malpractice wrongful death action, Judge Nealon covered topics such as corporate liability vs. vicarious liability, including an analysis of prior appellate court and Lackawanna County decisions that applied corporate liability concepts to professional medical corporations, i.e., private doctor's groups or offices.  Judge Nealon followed the prior precedent of allowing for corporate liability against professional medical corporations in medical malpractice actions,

Judge Nealon also addressed issues surrounding both the "gross negligence" standard under the Mental Health Procedures Act, and separate punitive damages claims in this context.  Notably, the punitive damages claims were dismissed.

Overall, the court granted the Defendants' motions for summary judgment in part, and denied them in part.

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

Monday, July 11, 2016

Bad Faith Claim Allowed to Proceed in Fire Loss Case

In his recent decision from a few months back in the case of Turner v. State Farm Fire & Cas. Co., Case No. 15-CV-906, (M.D. Pa. January 14, 2016 Conaboy, J.), Judge Richard P. Conaboy of the  Federal Middle District Court allowed a bad faith claim to proceed beyond a motion to dismiss in a first party fire loss case.

 The insurer had moved to dismiss a bad faith count under Twombly/Iqbal standards for federal court Complaints.  The court denied the motion and found that the bad faith claim was adequately pled.

Judge Richard P. Conaboy
M.D. Pa.
The insureds alleged the property at issue was insured for contents coverage and other miscellaneous coverages in the amount of $159,060.00. The complaint alleged that despite repeated demands, the carrier did not make payment on claims subject to these coverages.

Anyone wishing to review this case may click this LINK.

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

Friday, July 8, 2016

Evidence of UIM Policy Limits and Premiums Paid Precluded in Pennsylvania Eastern Federal District Court Post-Koken Trial

In a recent Post-Koken opinion out of the Eastern District Federal Court of Pennsylvania in the case of Lucca v. GEICO, No. 2:15-CV-04124-GEKP (E.D. Pa. July 7, 2016 Pratter, J.), the court issued an Opinion granting a pre-trial motion in limine of the UIM carrier to preclude any mention at trial of the amount of the available UIM limits and/or the premiums paid by the Plaintiff for those UIM benefits.

Noting that caselaw on this issue in Pennsylvania was basically nonexistent, the court essentially ruled that information pertaining to the UIM policy limits and premiums paid were irrelevant to the issue of the extent of the Plaintiff's injuries allegedly resulting from the accident.  The court also noted that the admission of such information could be prejudicial to the UIM carrier.

As such, the court granted the carrier's motion in limine and precluded the evidence.  In so ruling, the Lucca court declined to follow the more expansive decision of Noone v. Progressive out of the Middle District Federal Court of Pennsylvania.  [Click this LINK to view the 2013 Tort Talk post on the Noone case and to access that decision through a Link].

Anyone wishing to review the Lucca decision may click HERE

I send thanks to the prevailing defense attorney Robert Cahall of the Wilmington, DE office of McCormick & Priore for bringing this case to my attention.

Thursday, July 7, 2016

Western Federal District Court Addresses Inter-Policy Stacking Issues

In its recent decision in the case of Costa v. Progressive Preferred Insurance Company, No. 2:16-cv-74 (W.D. Pa. June 10, 2016 McVerry, S.J.), the court granted Progressive’s Motion for Summary Judgment and denied the Plaintiff’s Motion for Summary Judgment on the issue of the extent of coverage UIM coverage due to the Plaintiff in this inter-policy stacking case.  

According to the Opinion, following a fatal motor vehicle accident, the Plaintiff asserted that the decedent was an insured under three (3) separate policies, i.e., one policy issued to the decedent’s father by Safeco Insurance Company, which was stacked, a policy issued to the decedent’s mother and his mother’s sister by Erie Insurance, which was non-stacked, and the Progressive policy issued to the decedent’s mother that provided for $50,000.00 in UIM coverage. The decedent’s mother had signed a “waiver-of-stacking form” under the Progressive policy.  

After the accident, Safeco and Erie Insurance tendered the full limits while Progressive offered $20,000.00, which the Plaintiff accepted, after Progressive took the position that its policy’s “Other Insurance” clause limited its exposure to its pro rata share of the largest applicable single vehicle UIM policy.  

Thereafter, the Plaintiff filed suit alleging claims for breach of contract and bad faith based upon Progressive’s failure to tender its $50,000.00 in UIM benefits.  

The federal court reviewed the stacking issue under the Pennsylvania Supreme Court’s decision in the case of Craley v. State Farm Fire and Cas. Co., 895 A.2d 530, 539 (Pa. 2006).  

In applying Craley, the court rejected the Plaintiff’s argument that the insured did not understand the waiver of stacking forms she was signing.  The court also ruled that, because the insured had waived stacking, the “Other Insurance” clause applied.  

The court in this Costa case also went on to distinguish the case before it from the case of Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008).  

As noted, the federal court in Costa ultimately granted summary judgement in favor of Progressive finding that Progressive had properly paid out UIM limits under its policy under the policy provisions applicable to the case presented.  

Anyone desiring to review this case may click this LINK.

I send thanks to Attorney Patrick Sweeney of the Philadelphia law firm of Sweeney and Sheehan for bringing this case to my attention.  



Tuesday, July 5, 2016

Coverage/Defense for Injuries Resulting from Bar Fight Denied Under Liability Policy

In a recent Philadelphia County Court of Common Pleas decision in the case of Penn-Patriot Ins. Co. v. Williams, PICS Case No. 16-0659 (C.P. Phila. Co. May 9, 2016 Djerassi, J.), the court ruled in a declaratory judgment action on an issue of coverage brought by a liability insurance company seeking a judicial declaration that the insurance company need not provide coverage to its insured Defendants in a matter arising out of a fight that occurred at the insured's cafĂ©.  

According to the Opinion, the carrier denied coverage based upon the terms of its policy and an endorsement entitled “Assault or Battery General Liability Exclusion.”  

The trial court also noted that the policy provided coverage for bodily injury or property damages caused by an “occurrence” which was defined as an accident.   

Also, an endorsement in the policies expressly stated that the policy “does not apply to liability for damages because of ‘bodily injury,’ ‘property damage,’…medical expense arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation’” in, near, or away from the premises, whether or not caused by or involving the insured, the insured’s employees, patrons, or other persons.  

The policy also excluded coverage for any act or omission related to the prevention of such incidents, failure to warn, and/or negligent hiring, training, and/or supervision. 

The court ruled that the factual allegations pertaining to the fight that occurred on the premises did not trigger coverage under the policy at issue.   The court found that the injuries to the injured party arose from the blows by hands, fists, and a bottle, not from any acts of negligence.   

The court also emphasized that the allegations of the Defendant’s failure to warn, employed competent staff, train employees, or supervise employees were expressly excluded from coverage by the language of the policy.  

Accordingly, the court entered a declaratory judgment finding that no coverage or defense need be provided to the Defendants in this matter.  

Anyone wishing to review a copy of this case may contact me at

I send thanks to Attorney Jay Fulmer of Philadelphia for securing a copy of this decision for dissemination.   

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 31, 2016).