Tuesday, January 19, 2021

Release Signed by Plaintiff Found to Preclude Other Claims

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment. 

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart. 

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00. 

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver. 

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image: www.lexisnexis.com

Monday, January 18, 2021

Volunteer Jurors for Virtual Mock Trial Competition Needed in Lackawanna County


Pennsylvania Supreme Court Declines to Adopt Continuous Representation Rule for Attorney Malpractice Claims

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable to a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule. 

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time-barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Friday, January 15, 2021

Admissibility of Similar Expert Opinions in a Medical Malpractice Case

In the case of Snyder v. Scranton Hospital Company, LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 14, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the admissibility of the expert testimony in a medical malpractice case. 

This matter arises out of a malpractice action during which the Plaintiff alleges that he suffered permanent left ulnar damage secondary to stretching or compression trauma caused by his improper positioning and inadequate monitoring during the course of a surgery.

In support of his claims, the Plaintiff has produced expert reports from an anesthesiologist, a rheumatologist, and a nurse with regards to the relevant standards of care and medical causation, along with additional expert reports from orthopedic surgeons concerning causation and the allegedly resulting damages.

The Defendants filed a Motion In Limine seeking to limit the expert testimony that the Plaintiff intended to present. More specifically, the Defendant sought to preclude any testimony by the rheumatology expert with regards to the standard of care and causation issues. The Defendants asserted that this expert should not be permitted to testify as he is not qualified to offer opinions on the standard of care and causation under the mandates of the MCARE Act, that the expert’s opinions would be cumulative in light of the opinions being offered by the Plaintiff’s other experts, and given that the rheumatologist expert's testimony was impermissibly speculative.

After his review of the record and the expert reports, Judge Nealon found that the rheumatologist expert offered by the Plaintiff did not satisfy the standard of care familiarity, same subspeciality, and similar approved board-certification requirements set forth in §512(c) of the MCARE Act, or the “related field of medicine” criteria in §512(e) of that Act, in order to be determined to be competent to address the standard of care under the facts of this case.

However, the court also found that the rheumatologist expert offered by the Plaintiff was sufficiently qualified under §512(a)(b) of the Act in order to testify as to the medical causation.

The court additionally noted that, since the causation opinions offered by the various different types of experts presented by the Plaintiff contained discrete reasoning offered by different types of medical specialists addressing the issue of causation from distinct clinical perspectives, the causation testimony of these different experts was found to be corroborative, rather than needlessly cumulative.

The court additionally found that the defense challenges to the rheumatologist's testimony based upon Pa. R.E. 703 and Pa. R.C.P. 207.1 under an argument that the testimony was impermissibly speculative was devoid of merit. The court noted that the rheumatologist’s opinions were based upon medical reports, depositions, and other evidence in the record. It was also noted that the expert did not rely upon novel scientific evidence or methodology that has not been accepted in the field of rheumatology.

As such, the court ruled that the rheumatologist would not be allowed to testify as to the applicable standard of care, but would be allowed to testify on the causation issues.

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

Lack of Informed Consent Claim Dismissed

In the case of Fritz v. BNG Aesthetics, LLC, No. CV-20-0553 (C.P. Lycoming Co. Oct. 28, 2020 Linhardt, J.), the court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice claim of a lack of informed consent relative to a laser procedure to treat the Plaintiff’s vision issues. 

The court ruled that the Plaintiff’s lack of informed consent claim against the Defendant doctor lacked the specificity required to establish that the doctor not only provided her with negligent treatment but also knowingly provided her with a different treatment than had been discussed with the Plaintiff.

The court noted that a claim for informed consent is treated as a “technical battery” under Pennsylvania law due to an unwanted testing.

Since the court found that the Plaintiff’s lack of consent/negligence claim was not properly pled, the court did not delve into the validity of the claim for punitive damages.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Source of Image:  Karolina Growbaska on www.pexels.com

Thursday, January 14, 2021

A Pennsylvania Superior Court Panel Applies the Household Exclusion Despite Gallagher v. GEICO

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.  The Tort Talk post on that case, which contains a link to that decision, can be viewed by clicking this LINK.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. January 13, 2020 Kunselman, J., King, J., Colins, J.)(Non-precedential)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

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

I send thanks to Attorney Benjamin P. Novak of the Lancaster office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this case to my attention.

Court Addresses Policy Definition of "Bodily Injury" in Context of Opioid Cases

In the case of Giant Eagle, Inc. v. Am. Guarantee & Liab. Ins. Co., No. 2:19-CV-00904-RJC (W.D. Pa. Nov. 9, 2020 Colville, J.), the court ruled that the Defendant insurance company had a duty to defend the Plaintiffs in multiple lawsuits where the Plaintiffs asserted claims of “bodily injury” allegedly caused by the insured’s distribution and sale of prescription opioids. 

The Defendant carrier argued that the Plaintiffs’ Motion should be denied as the Plaintiff failed to meet their burden of establishing that the Complaints in the underlying lawsuits sought damages for “bodily injury” caused by a single “occurrence” that first manifested during the periods of coverage.

In denying the carrier’s Motion, the court pointed to several court decisions which have interpreted similar “bodily injury” insurance policy provisions in conjunction with similar opioid and epidemic lawsuits and found that those underlying lawsuits that were seeking damages due to claims of "bodily injury."  The court found that the carriers in this case failed to sufficiently distinguish those cases.

More specifically, the court found that, although the particular Plaintiffs in these lawsuits did not allege that they personally suffered bodily injury or damages, those Plaintiffs were still seeking damages because of claims arising out of a "bodily injury."   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).