Tuesday, December 12, 2017

Regular Use Exclusion Upheld, Bad Faith Claim Denied In Eastern District Court Case

In the case of Reeves v. The Travelers Company, No. 16-6448 (E.D. Pa. Oct. 30, 2017 Baylson, J.), the court upheld a carrier's regular use exclusion and entered summary judgment on a plaintiff's bad faith claims.

At the time of the accident, the plaintiff was a passenger in a truck owned by his employer while the truck was en route from a work meeting to a work site. 

The plaintiff admitted in discovery that he drove or rode in his employer's vehicles on 90 percent of his workdays.  The court rejected the plaintiff's argument that he only used 3 of the employer's 17 vehicles and his argument that his work duties were performed outside of the vehicle.

The court noted that the regular use exclusion has been held to apply to both passengers and drivers.  The court also referenced cases where the regular use exclusion was still applied despite the fact that an employee's work duties were performed outside of a vehicle.

The court additionally found no basis for a bad faith claim after finding that the carrier investigated and denied the claim based upon a reasonable reading of the policy.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Nov. 21, 2017).

Friday, December 8, 2017


Here is a LINK to a complimentary copy of the 62 page Tort Talk 2017 Civil Litigation Update booklet that I created for use at the recent Lackawanna Bench Bar Conference as well as the Luzerne County Bench Bar Conference.

The Tort Talk 2017 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and is offered here free of charge for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering a small donation to the charity of your choice, your local Pro Bono Office, or perhaps to the Children's Advocacy Center in Scranton which is a private non-profitable charitable organization whose mission is to provide excellence in the assessment and treatment in child abuse and neglect case.  The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510.  Here is a LINK to their website.  Just a thought.

Thanks for reading Tort Talk and for providing me with notable cases to highlight on Tort Talk.  All is much appreciated.

Thursday, December 7, 2017

Conclusory Bad Faith Allegations Result in Federal Court Complaint Being Dismissed With Leave to Amend

In the case of Irving v. State Farm Mut. Auto. Ins. Co., No. 17-1124, (E.D. Pa. Oct. 4, 2017 Slomsky, J.), the court dismissed a Plaintiff’s auto insurance bad faith Complaint with leave to amend.

In this underinsured motorist benefits action, the insured realized a recovery from the tortfeasor’s liability insurer, after which the UIM carrier made a settlement offer.  The insured rejected the UIM carrier’s offer and sued for bad faith and breach of contract.

In the Complaint, the insured enumerated several allegations of the insurer’s bad faith conduct. The insured asserted the insurer acted unreasonably and unfairly, failed to advance a reason for its denial of the full value of the claim, intentionally and/or recklessly disregarded the insured’s injuries, and refused to pay benefits owed under the policy.  The carrier moved to dismiss the bad faith claim.

The Court stated “[a] complaint must do more than allege a plaintiff’s entitlement to relief, it must ‘show’ such an entitlement with its facts.”

The Court held that the undisputed facts only show a disagreement between the parties to negotiate and settle the UIM claim. Furthermore, “[t]hese facts do not show that [the insured] has a plausible claim for bad faith because they do not shed light on the reasonableness of [the insurer’s] actions.”

The Court reasoned that the insured’s allegations are merely conclusory and are thus insufficient to state a claim for bad faith. The Court then dismissed the bad faith claim, but gave the insured twenty days leave to amend its complaint.

I do not have a copy of this case. 

I send thanks to Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.

Tuesday, December 5, 2017

Pennsylvania Supreme Court Agrees to Address Issue of Duty of Care Owed to College Athletes

According to an article in today's Legal Intelligencer by Max Mitchell, the Pennsylvania Supreme Court issued an Order on November 29, 2017 agreeing to hear an appeal in the case of Feleccia v. Lackawanna College, No. 359 MAL 2017 (Pa. 2017), which involved the issue of what standards colleges have to adhere to in order to meet their duty of care towards student-athletes engaged in college sports.

The Feleccia case arose out injuries to two college students at a pre-season football practice. 

At the trial court level in Lackawanna County, Judge James A. Gibbons ruled on a motion for summary judgment that waivers of liability executed by the athletes barred their recovery.  The trial court also ruled that the student-athletes had assumed the risk of their own injuries in playing college football.  Here is a LINK to the Tort Talk post on the trial court decision.

The Pennsylvania Superior Court reversed after finding that issues of fact precluded the entry of summary judgment.  The Tort Talk post on that decision can be viewed HERE

The Pennsylvania Supreme Court noted that the more specific issues presented by the case involved whether colleges are required to have medical personnel on hand at athletic events, and whether clauses releasing the school from any and all liability is enforceable.

The Supreme Court's Order granting the appeal and stating the issue can be viewed HERE.

Source:  "Justices Take Up Case on Colleges' Duty of Care to Student-Athletes," by Max Mitchell of the Legal Intelligencer (Dec. 5, 2017).

New Trial Ordered Given Statute of Limitations Issues

In the case of Shiflett v. Lehigh Valley Health Network, Inc., 2017 Pa. Super. 354 (Pa. Super. Nov. 9, 2017 Solano, Scogan, and Platt, J.J.) (Op. by Solano, J.), the court upheld a liability verdict in favor of a Plaintiff in a medical malpractice case but sent the case back for a new trial on certain issues of damages.  

In its decision, the court noted that the Plaintiffs were improperly allowed to amend their Complaint to assert a new cause of action after the statute of limitations had expired.  

The Superior Court found that the new theory was based on a different time period and different facts that were not at issue in the original Complaint.  

In this regard, the Superior Court noted that vague, generalized negligence allegations could not establish a relation back to the original Complaint, particularly where, as here, the Defendants properly filed Preliminary Objections to those allegations.  

The Superior court sent the case back to the trial court for a new trial on damages as the general verdict on damages that was entered in the first trial could not be separated into amounts that were related to the proper time periods not barred by the statute of limitations.  The court noted that the new trial would be limited to damages because the error on the time barred claims did not affect the liability issues on the other claims.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith and the writer of the Drug and Device Law blog for bringing this case to my attention.  



Monday, December 4, 2017

ARTICLE: Mandated Coverages for Uber and Lyft Vehicles

The below article written by my associate attorney, Stephen T. Kopko, and myself appeared in the November 16, 2017 edition of the Pennsylvania Law Weekly.  It is republished here with permission.

New Law:  Mandated Coverages for Uber and Lyft Vehicles
By Daniel E. Cummins and Stephen T. Kopko | November 16, 2017
Pennsylvania Law Weekly

Recent news stories have emphasized the emerging trend of transportation network companies, such as Uber and Lyft, around the world. These types of ride-sharing companies are continuing to develop across the commonwealth of Pennsylvania as well.
Recent news stories have emphasized the emerging trend of transportation network companies, such as Uber and Lyft, around the world. These types of ride-sharing companies are continuing to develop across the commonwealth of Pennsylvania as well.

This increasing use of transportation network companies by the public led the Pennsylvania General Assembly to pass legislation last to regulate such businesses. Of note are the statutory requirements for insurance coverages mandated for transportation network companies, such as Uber and Lyft, and their drivers.

A New Law

Senate Bill 984 was signed by Gov. Tom Wolf on Nov. 4, 2016. This law relates to the operation of ride-sharing companies in the commonwealth of Pennsylvania. Under this bill, certain sections of Pennsylvania statutes were amended to include provisions and regulations related to these ride-sharing companies.
The new law can be found at both 66 Pa.C.S.A. Section 2601, et al., and 53 Pa.C.S.A.  §57A01, et al., and is titled “Transportation Network Companies.”

The new law defines what a transportation network company is and identifies the relevant driver(s) included under the ambit of the statute. This new law also outlines a list of qualifications and standards that the company must meet before being permitted to operate in the commonwealth of Pennsylvania.

Insurance Coverage Requirements

The new law also outlines the insurance coverage that either the driver of a ride-sharing vehicle must possess, or that the transportation network company must provide, to cover both the driver of the vehicle and any passengers that may use the service.
The “financial responsibility requirements” and the “Insurance requirements” mandated under this new law can be found at both 66 Pa.C.S.A. Section 2603.1 and at 53 Pa.C.S.A. Section 57A07. The language of each statute is essentially identical.

According to the provisions under 53 Pa.C.S.A. 57a07 (a), a “transportation network company driver or transportation network company on the driver’s behalf shall maintain primary automobile insurance that recognizes that the driver is a transportation network company driver or otherwise uses a vehicle to transport passengers for compensation.”
The new legislation then breaks down different scenarios and identifies what insurance mandates apply to each situation. These scenarios include where the driver of the vehicle does not have passengers and is logged into the transportation network company network (presumably applying to the situation where the driver is on the way to pick up a fare), and where the driver of the vehicle does have passengers.

Under the statutory language found at 53 Pa.C.S.A. 57a07(b) or 66 Pa.C.S.A. Section 2603.1(a)(2), where an Lyft or Uber driver is logged onto the digital network and is able to receive transportation requests but is not yet actually engaged in a prearranged ride, that driver must be covered by a policy providing bodily injury liability coverage of $50,000 per person/$100,000 per accident, along with $25,000 in property damage coverage. The insurance policy covering this scenario is also required to offer first party medical benefits coverage of at least $5,000 for the driver and $25,000 for any pedestrians injured.
Under the separate scenario where a Lyft or Uber driver has been engaged in a prearranged ride and does have a passenger in the vehicle, the statutory language found at 53. Pa.C.S.A. 57a07(c) and 66 Pa.C.S.A. Section 2603.1(a)(3)  requires that the applicable liability policy contain coverage of at least $500,000 for death, bodily injury and property damages claims. The policy must also provide for first party medical benefits coverage of at least $5,000 for the driver and $25,000 for any passengers or pedestrians injured.

These coverages, separate from the driver’s inapplicable personal automobile insurance coverage, may be secured or supplied either by the driver of the car, the transportation network company, or any combination of the two, see 53 Pa.C.S.A 57a07 (d); 66 Pa.C.S.A. Section 2603.1(a)(2)(iii);  66 Pa.C.S.A. Section 2603.1(a)(3)(iii).   

Priority of Coverages

One issue that has arisen with companies such as Uber and Lyft is the extent to which an insurance carrier providing personal automobile insurance coverage to a person who chooses to use a personal vehicle in a ride-sharing business capacity may deny coverage under that policy.
Importantly, 53 Pa.C.S.A57a07 (f) and 66 Pa.C.S.A. Section 2603.1(a)(4)  both provide, as follows: “Primary insurance. Coverage under an automobile insurance policy maintained under this section shall be primary and not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required to first deny a claim.”

As such, the statutory framework confirms that a Lyft or Uber driver’s separate personal automobile insurance coverage typically will not come into play if the driver is involved in an accident resulting in personal injuries or property damages.
This Pennsylvania law specifically provides that carriers that write personal automobile insurance in the commonwealth may exclude coverage, including liability coverage, property damage coverage, along with UM/UIM benefits and first party medical benefits coverage, for accidents involving an Uber or Lyft driver involved in an accident that occurs while its insured driver is logged into the transportation network company’s network and seeking customers or is engaged in a prearranged ride with a customer. See  53 Pa.C.S.A 57a07 (l)  and 66 Pa.C.S.A. Section 2603.1(a)(2). The law also upholds the right of a carrier who has excluded coverage to also assert that it has no duty to defend any claims arising out of an accident involving a Lyft or Uber vehicle as well.

Accordingly, the right of personal automobile insurance carriers to deny coverage in cases involving accidents arising out of the use of personal vehicles for transportation network companies has been upheld in the regulatory scheme passed by the Pennsylvania Legislature.
The law does otherwise also confirm that nothing in its provisions prevents a personal automobile insurance carrier from providing coverage for drivers engaged in Uber or Lyft activities should the carrier wish to sell that type of coverage.

As a protective measure for the public at large, the law additionally imposes duties upon the transportation network company to ensure that the mandated insurance coverage is in place prior to allowing a driver to drive for the company.
The statutes also otherwise provide that where the insurance that may have been secured by a driver for Uber or Lyft rides has lapsed or is inadequate, then the insurance coverage maintained by the transportation network company shall provide the coverage required by this law and the transportation network company’s carrier would have the duty to defend the claim.

Other Notable Provisions

In other notable provisions under the statute, it is provided that a transportation network company or a driver may not request or require a passenger to sign a waiver of potential liability for personal injury or property damage claims.

Nor can the transportation network company require any of its drivers to sign any waivers for potential liability for personal injury or property damage claims as a condition for entering into a lease agreement,  see 53 Pa.C.S.A. Section 57A07(m).
It is noted that, as of this time, there has been no case law handed down interpreting this statute since it was passed almost a year ago in November 2016. However, it can be anticipated that, as the use of Uber and Lyft continues to rise in Pennsylvania, insurance coverage decisions are likely to be generated in the unfortunate situation of an accident involving such a ride-sharing vehicle.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com. Cummins also provides Mediation Services at Cummins Mediation Services.  

Stephen T. Kopko is an associate with the firm who focuses on the defense of auto accident and premises liability matters.

Friday, December 1, 2017



Simply put, we should treat others as we would wish to be treated in similar circumstances. 

While zealous advocacy has its place in the practice of law, there is a clear difference between fighting for one’s client and engaging in unnecessarily vexatious conduct. Litigating issues, particularly tangential issues, just for the sake of litigation is a waste of time and energy and has no place in an upstanding practice of law.

So, be nice.

What goes around, comes around.