Tuesday, July 28, 2015

Presented On Post-Koken Issues At 2015 Pennsylvania Conference of State Trial Judges in Hershey, PA


Last Friday presented an update on the current status of Pennsylvania automobile accident law to an audience of trial court judges from around the Commonwealth of Pennsylvania at the July 2015 Pennsylvania Conference of State Trial Judges in Hershey, PA.   Also on the panel was Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer as well as the course coordinator and co-presenter, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas.

I focused my part of the presentation on the current status of issue of severance vs. consolidation of Post-Koken cases involving Bad Faith claims, as well as on general Post-Koken discovery issues.  I also provided an update on Facebook Discovery decisions and decisions pertaining to claims for punitive damages in auto accident cases involving cell phone use by defendant drivers.

 Many of these topics will also be covered at the upcoming Tort Talk Expo 2015 CLE set for September 24, 2015 at the Mohegan Sun Casino in Wilkes-Barre, PA.  For more information on that CLE and Cocktail Reception, along with registration information, please go to www.TortTalk.com and see the LINKS in the upper right hand corner of the blog.

Monday, July 27, 2015

Judge Minora of Lackawanna County Denies Motion for Reconsideration in Medical Malpractice Case

In a recent decision in the case of Rarrick v. Silbert, No. 2002-CV-4951 (C.P. Lacka. Co. June 23, 2015 Minora, J.), Judge Carmen D. Minora, of the Lackawanna County Court of Common Pleas, denied a Defendant’s Motion for Reconsideration of his previously denial of the Defendant’s Motion for Summary Judgment in a medical malpractice case against a psychiatrist and another Defendant entity in a case involving allegations that the Defendants failed to take appropriate steps to avoid a situation with an emotionally unstable individual from escalating into a hostage-taken event for the Plaintiff and her family members that had to be defused by police intervention.  

Judge Minora laid out the standard of review for Motions to Reconsideration and found that the Defendant’s motion had been timely filed.

Judge Minora rejected the defense contention that, since the Court found in its previous decision in the matter that there was no common law duty owed to the Plaintiff, there could be no valid claim by the Plaintiff.   To the contrary, Judge Minora found that the Mental Health Procedures Act created a statutory duty of care owed to the Plaintiff that allowed the claim to proceed. 

The Court also rejected the defense argument that the Plaintiff failed to produce expert report as required by Pennsylvania law to move forward on the claims presented.   In so ruling, Judge Minora found that this case fell within those types of cases where the alleged negligence and/or the alleged lack of skill and/or the alleged lack of due care averred was so obvious as to be within the realm of a layperson’s normal understanding based upon the ordinary experience and comprehension such that expert testimony is not required.    

As such, the court denied the Defendants’ Motion for Reconsideration.  

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Friday, July 24, 2015

Judge Nealon Reviews the Law On Admissibility of Prior Convictions

In his recent decision in the breach of contract case of Clark v. GEICO, 12 CV 1278 (C.P. Lacka. Co. July 8, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a defense motion in limine that raised issues regarding the admissibility of crimini falsi evidence against the Plaintiff under Pa.R.E. 609 and evidence of prior bad acts or crimes by the Plaintiff under Pa.R.E. 404(b).

In this matter, the Plaintiff made a claim under a GEICO auto policy following a loss of his vehicle by fire.  GEICO denied the claim on the grounds that the policy had been declared null and void back to its inception due to material misrepresentations by the Plaintiff during the application process.

Judge Terrence R. Nealon
Lackawanna County
GEICO's motion in limine centered around its desire to introduce evidence of the Plaintiff's prior convictions for receiving stolen property, theft by deception or false statement, DUI, and driving without a license and financial responsibility.  Relying on the above-noted Pennsylvania Rules of Evidence, GEICO sought to introduce the evidence at issue in an effort to impeach the Plaintiff's credibility and to demonstrate a motive on the part of the Plaintiff to deceive the GEICO insurance agent in an effort to obtain personal automobile insurance on a vehicle that the Plaintiff was allegedly actually using for commercial purposes.

The Plaintiff countered with an argument that the theft and receiving stolen property charges were older than ten years and not admissible under the applicable test, and that the DUI, driving without a license and financial responsibility charges were not crimini falsi crimes.  The Plaintiff also generally argued that the probative value of the evidence at issue was outweighed by the danger of prejudice and the potential confusing of the issues presented.

After applying the facts to the relevant case law, the court ruled that evidence of the Plaintiff's convictions for theft as well as one of the two receiving stolen property charges would be allowed.

As for the DUI and other driving violations noted, GEICO was not offering such evidence as crimini falsi evidence but rather under Pa.R.E. 404(b) to prove motive on the part of the Plaintiff to deceive the carrier when the Plaintiff allegedly gave an incorrect driver's license number during the application process.

Judge Nealon crafted a remedy by allowing GEICO to show that the Plaintiff's license had been suspended for unspecified reasons.  The Court felt that this benign reference would still enable GEICO to argue the Plaintiff's motive to deceive the carrier when the Plaintiff allegedly provided a false driver's license number during the application process.

This Clark v. GEICO decision provides a thorough recitation of the current status of Pennsylvania evidentiary law on the issue of the admissibility of evidence of a party's prior criminal convictions.

Anyone wishing to review a copy of the same may contact me at dancummins@comcast.net.

POOR DOGGY: Judge Zulick Reviews Issues in Veterinary Malpractice Case

In his recent decision in the case of Purpura v. Bartin Heights Veterinary Hospital, _____ (C.P. Monroe April 30, 2015 Zulick, J), Judge Arthur Zulick of the Monroe County Court of Common Pleas addressed several issues raised by way of Preliminary Objections against a Plaintiff’s veterinary malpractice action.  

The case involved alleged  malpractice in the treatment of the Plaintiff’s dog.   The Plaintiff alleged that the veterinarian incorrectly diagnosed the dog’s condition and subjected the dog to surgeries that caused further harm.  

The court granted the Defendant’s Preliminary Objections to the Plaintiff’s demand for punitive damages.   Judge Zulick noted that the Plaintiff’s Complaint, which alleged negligence and negligence supervision in training, contained no allegations that the Defendants’ actions were intentional, reckless, or malicious.  As such, the court sustained this objection.  

In addition to addressing other issues, the court also sustained the Defendants’ objections to the Plaintiff’s claims relative to the dog’s alleged severe physical pain as a result of the alleged malpractice.   In so ruling, Judge Zulick noted that, under Pennsylvania law, dogs were considered personal property.  

Judge Arthur Zulick
Monroe County
Judge Zulick also noted that Pennsylvania case law held that, under no circumstances, could there be any recovery for a loss of companionship due to an animal’s death.  

The court also noted that claims for pain and suffering of an animal were not recognized under Pennsylvania law.

Accordingly, the court struck the claims relative to the dog’s alleged severe pain.  

Judge Zulick also sustained Defendants’ objections regarding Plaintiffs’ calculation for compensatory damages.  The court found that the Complaint was not sufficiently specific enough in this regard as the Plaintiff failed to set forth the alleged fair market value of the dog at the time of injury and/or to itemize the cost of the veterinary treatment to remedy the alleged injury caused by the alleged malpractice.  

Judge Zulick noted that, under Pennsylvania law, if the cost of that treatment, including future expenses, exceeded the dog’s fair market value, the law required that the damages would be limited to the fair market value of the dog.

Anyone wishing to review a copy of this decision may contact me at dancummins@comcast.net.

Wednesday, July 22, 2015

Supreme Court Addresses Ability of Insured To Settle Claim Itself When Being Defended Under Reservation of Rights By Liability Carrier

In the case of Babcock & Wilcox Co. v. American Nuclear Insurers & Mutual Atomic Energy Liability Underwriters, 2 WAP 2014 (Pa. July 21, 2015)(Maj. Op. by Baer, J.)(Concurring and Dissenting Op. by Eakin, J.), the Pennsylvania Supreme Court addressed the issue of first impression of whether an insured forfeits insurance coverage by settling a tort claim without the consent of its insurer, when the insurer defends the insured subject to a reservation of rights, and asserts that the claims may not be covered by the policy.

The underlying facts involved an insurance carrier that refused to settle a class action claim against its insureds.  The carrier believed in a strong chance for a defense verdict. 

The insured was not of the same opinion and went ahead and negotiated a settlement of the underlying matter with the class action plaintiffs.

The insureds then pursued a reimbursement of the settlement amount paid from the its liability carrier who refused to settle the matter.

After a jury trial on the matter, the jury found that the settlement brokered by the insured was fair and reasonable.

The Superior Court had ruled that an insured could only settle a claim that was being defended under a reservation of rights by the insurer if the insured could demonstrate the insurance company was acting in bad faith.

The Supreme Court reversed and held that an insured does not have to demonstrate bad faith in reservation of rights cases order to settle certain claims without its insurance company’s consent. 

In so ruling the Pennsylvania Supreme Court reinstated an $80 million settlement in personal injury actions against a nuclear facility owner.

The Babcock Supreme Court adopted the standard that was employed by the Allegheny County trial in the case, which found that the insured’s settlement of the case was “‘fair and reasonable from the perspective of a reasonably prudent person in the same position of [insureds] and in light of the totality of the circumstances.’”

The Supreme Court stated that this was the “standard which we adopt herein as the proper standard to apply in a reservation of rights case where an insured settles following the insurers’ refusal to consent to settlement.”  

Anyone wishing to review this Babcock Majority Opinion may click this LINK.

The Concurring and Dissenting Opinion may be viewed HERE.    

Sources:  I send thanks to Don Eodice of Eodice Consulting for bringing this decision to my attention. 

See also, Article: "High Court Allows Insureds to Settle Without Insurer Consent," by Gina Passarella of The Legal Intelligencer (July 22, 2015).  

Summary Judgment Entered Against Trip and Fall Plaintiff Who Fell Walking Backwards While Not Looking Back

In the case of Meckel v. Lehigh Valley Health Network, PICS Case No. 15-0995 (C.P. Lehigh Co. April 23, 2015 Reichley, J.), the court granted summary judgment to the defendant possessor of land in a premises liability action where the plaintiff alleged that she was injured after she fell while walking backwards out of the defendant's office and fell.

The Plaintiff was pulling another person in a wheelchair as she walked backwards out of the office.  While walking backwards through the door, and not looking back while she was doing so, the plaintiff allegedly struck a large, wheeled trash can located just outside the door.  The plaintiff fell and was allegedly injured.

The court in this matter pointed to the well-settled rule in premises liability cases that it is the duty of a person to look where they are walking and to see that which is obvious.

The court also noted that there are numerous decisions holding that summary judgment is warranted and appropriate where a person fails to look back when walking backwards.

Summary judgment was granted in this Meckel case as well as there was no genuine issue of fact where the plaintiff did not look back at the time she was walking backwards out of the defendant's office.  As such, the plaintiff was found to be precluded from recovering as a matter of law and the defendant's motion for summary judgment was granted.

Anyone wishing to review a copy of this Meckel decision may contact me at dancummins@comcast.net.

Source:  "Case Digests."  Pennsylvania Law Weekly (June 30, 2015).

Wednesday, July 15, 2015

Quoted in a Recent Article in The Legal Intelligencer on the Impact of Obamacare On the Defense of Medical Expenses Claims in Civil Litigation Matters

Here is a LINK to a recent July 2, 2015 Legal Intelligencer article by Max Mitchell entitled "Can Affordable Care Act Ruling Help the Defense Bar?"

The article outlines the debate on the possible effect of the United States Supreme Court's ruling upholding the validity of Obamacare upon the ability of defense counsel in civil litigation matters to attack claims for recoveries for future medical expenses by asserting that the Plaintiff may have health insurance pursuant to Obamacare.

If you are unable to access the article online, please let me know at dancummins@comcast.net and I will email you a copy.