Third Circuit Swerves the Other Way in Debris-in-the-Road Case

On January 26, 2012, the Third Circuit Court of Appeals issued an interesting uninsured (UM) motorists benefits decision in the debris-in-the-road case of Allstate v. Squires, No. 11-1664 (3d Cir. Jan. 26, 2011 Sloviter, Vanaskie, and Greenberg, J.J.)(Opinion by Greenberg, J.).

I previously put up a Tort Talk post on the District Court's decision in this matter last year denying coverage under the facts presented.  That post can be viewed here.  Now the Third Circuit has reversed in favor of a finding of potential coverage under the facts presented.

In Squires, the injured party insured was driving his pickup truck when he allegedly swerved to avoid a cardboard box lying in the middle of his lane.

Significantly, Allstate stipulated in this matter that an unidentified vehicle dropped the box.  Allstate rejected the injured party's claim for uninsured motorist benefits and sought a declaratory judgment. The insured responded with counterclaims for breach of contract and insurance bad faith under 42 Pa. Cons. Stat. § 8371.

At the trial court level, the District Court had entered judgment for Allstate, finding that the injuries did not "arise out of ownership, maintenance or use of an uninsured auto."

Now with this decision, the Third Circuit has reversed, rejecting the main argument by Allstate that the harm was caused by the box in the road and not by any vehicle as required to support a UM claim under the insurance policy language and Pennsylvania law.  The Third Circuit relied, in part, on the notion that physical contact with an uninsured vehicle is not required for an accident to "arise out of" the use of an uninsured vehicle.

The Court ultimately held that, accepting for purposes of appeal the stipulated facts that the debris was placed on the road by an unidentified vehicle, the Court found that the accident arose out of the maintenance and use of a motor vehicle such that there was a sufficient causal connection to support a finding of potential coverage for the claims presented.  The Third Circuit stated its belief that the Pennsylvania Supreme Court would rule in the same fashion if presented with the same case.

It is noted that this decision in Allstate v. Squires by the Third Circuit is contrary to a number of trial court decisions recently issued on the same issue, none of which was noted in this Opinion.  Summaries of those trial court opinions can be found here, here, and here.

Perhaps a significant difference between the Third Circuit's decision in Allstate v. Squires and those other trial court decisions on debris-in-the-road cases is that it does not appear that there was any stipulation in any of the trial court decisions that the debris on the road had indeed come from a vehicle.  Rather, in those cases, the injured party was without any evidence to establish how the debris came to be on the road.

The Third Circuit's decision  Allstate v. Squires also has an interesting tidbit in footnote 11 of the opinion in which footnote the Court confirmed that it was not deciding or taking any position on any aspect of the Plaintiff's bad faith claim against Allstate for its denial of coverage.  Interestingly, the Court went on to state in that footnote:

"We note, however, that our experience in addressing Pennsylvania insurance coverage disputes has demonstrated that insureds tend to bring bad faith claims when insurers reject their claims even though there are legitimate disputes over whether the claims are covered."


Anyone wishing to read the Third Circuit's Opinion in Allstate v. Squires can click on this Link.

Westlaw Cite for Xander v. Kiss Cell Phone Case

I recently reported on the Northampton County case of Xander v. Kiss in which the court dismissed a punitive damages claimed based upon allegations that the defendant-driver was using his cell phone at the time of the accident.  That post can be viewed here.

As an update, I note that I have been informed that the new Westlaw citation for that case is Xander v. Kiss, 2012 WL 168326 (C.P. Northampton Co. 2012 Zito, J.).

A tip of the hat to James Beck of the Philadelphia office of the Dechert LLP Law Firm for securing the citation.  Attorney Beck also writes the excellent Drug and Device Law Blog which can be viewed here.

TORT TALK SUBSCRIBER NUMBER OVER THE 750 MARK

There are now over 750 email subscribers to Tort Talk--and that number doesn't even include those who get Tort Talk by way of an RSS Feed.

I write to say Thank You Very Much for reading and for tipping me off on new cases of note from around the Commonwealth.  I really appreciate it.


Please be reminded that there are a number of tools available at the Tort Talk site (http://www.torttalk.com/) for you to go back and review cases and updates you may recall reading about previously in your emails.

On the site, down on the right hand column, is the always accessible Post-Koken Scorecard and the newly created Facebook Discovery Scorecard.

Further down on the right hand column is a section called "Labels."  That's a tool that you can use to find cases or articles on a specific topic. By clicking on the Label that's specific to your research, you will be sent to a page that list each and every Tort Talk post that touches upon that topic. You can then click on each title to read further.

Another way to conduct research on a particular topic is to use the "Search This Blog" tool that is closer to the top of the right hand column of the blog. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that mentions that topic. You can then click on each post to read further.

Down on the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the JDSupra.com website. If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles I have created along with links to some other legal and non-legal-related websites and blogs that may be of interest.

Thanks again for reading Tort Talk. I am grateful for your interest and support. If I should be able to provide you with any assistance on any matters you may have in the Northeastern Pennsylvania region where I practice, or if I can possibly help out in any other way, please do not hesitate to contact me at dancummins@comcast.net.

TORT TALK EXPO 2012 - Lineup of Presenters Finalized and CLE Credits Approved

The lineup has been finalized for the TORT TALK EXPO 2012 CLE Seminar, which is set to take place on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Also, I have received approval from the Pennsylvania CLE Board, approving 2 substantive and 1 ethics credit for the event.

In addition to my presentation of an Auto Law Update, the other presenters will include Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price on a Civil Litigation Update, as well as noted expert radiologist (and attorney) Dr. Michael Brooks presenting on diagnostic studies in personal injury matters, with an emphasis on auto accident matters.

The stellar Judicial panel for the "View from the Bench" portion of the program will consist of Pennsylvania Supreme Court Justice Michael Eakin, President Judge of the Superior Court Correale Stevens, and U.S. Third Circuit Court of Appeals Judge Thomas Vanaskie. 

President Judge Thomas F. Burke, Jr. will also provide a "State of the Luzerne County Bench" presentation, reporting on which new judge will be handling which types of cases along with an update on the current status of the Luzerne County civil trial backlog.

The View from the Bench portion will be presided over by former Luzerne County Judge Joseph Van Jura, who recently completed his appointment and has returned to private practice where he is also offering his services for Mediations and Arbitrations.

In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators.  To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):

Courtside Documents: www.courtsidedoc.com

Digital Justice: www.digitaljustice.net

Exhibit A: www.exhibitadigital.com

Minnesota Lawyers' Mutual: www.mlmins.com

Ringler Associates:  www.ringlerassociates.com

The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can continue to network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

Also, a portion of the proceeds from this event will be donated to a local charity to be determined.

The CLE Program will include the following topics and presenters:

TORT TALK EXPO 2012

Presented by

Daniel E. Cummins, Esquire

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday, May 3, 2012

12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits

Followed by Cocktail Hour (4:30 – 6:30 p.m.) at Breakers in the Mohegan Sun

12:30 – 1:00 pm Registration

1:00 – 1:30 pm: The Tort Talk Auto Law Update

Presenter: Daniel E. Cummins, Esq.

1:00 – 1:30 pm: The Tort Talk Civil Litigation Update

Presenter: Paul T. Oven, Esq.

2:00 – 2:15 pm BREAK

2:15 - 3:15 pm: Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries

Presenter: Dr. Michael L. Brooks, M.D., J.D., FCLM

3:15 – 3:30 pm BREAK

3:30 – 4:30 pm A View from the Bench: Ethical Issues in Legal Writing and Advocacy Before the Court in an Electronic World

Moderator:

Hon. Joseph Van Jura (Ret.)

Presenters:

Pennsylvania Supreme Court Justice Michael Eakin

 

President Judge of Superior Court Correale Stevens

U.S. Third Circuit Court of Appeals

Judge Thomas I. Vanaskie 

Luzerne County President Judge Thomas Burke, Jr.

COCKTAIL RECEPTION TO FOLLOW

AT BREAKERS

4:30p.m. - 6:30p.m.

Costs below cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives
and risk managers

$25.00

Lawyers

$165.00

Please make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.

Name(s)____________________________________

Firm/Company_______________________________

PLEASE MAIL REGISTRATION FORM AND PAYMENT TO:

TORT TALK

c/o Daniel E. Cummins, Esq.

Foley, Cognetti, Comerford, Cimini & Cummins

507 Linden Street

Suite 700

Scranton, PA 18503

For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.

HOPE TO SEE YOU THERE!

Judge Geroulo of Lackawanna County Addresses First Party Issues in Auto Accident Case

In the Lackawanna County case of Mehall v. Benedetto, No. 09-CIV-5849/No. 10-CIV-7224 (C.P. Lacka. Jan. 10, 2012, Geroulo, J.), Judge Vito Geroulo addressed a variety of issues in an automobile accident case in which it was alleged that the Plaintiff was the owner of a registered but uninsured motor vehicle.

By way of background, at the time of the subject accident, the injured party Plaintiff was operating a vehicle that was owned by his girlfriend. It was alleged that, at that time, the injured party Plaintiff also owned another vehicle that was registered but not insured.

The court in Mehall found that there was no genuine issue of material fact that the Plaintiff did indeed own a registered and uninsured vehicle at the time of the accident.

According to the Opinion, the parties agreed that, given the fact that the Plaintiff was the owner of a registered but uninsured vehicle, he was deemed to have chosen the limited alternative under 75 Pa. C.S.A. §1705(d).

Before the court was a Motion for Summary Judgment seeking a finding that 75 Pa.C.S. §1714 of the Pennsylvania Motor Vehicle Financial Responsibility Law precluded the Plaintiff from recovering past, present, or future medical bills, medical liens, and medical expenses as well as past, present, or future wage loss or earnings impairment, as well as any and all first party benefit type damages. In so arguing, the defense relied upon the case of McClung v. Breneman, 700 A.2d 495 (Pa. Super. 1997).

The Plaintiff countered that, under the case of Swords v. Harleysville Insurance Co., 883 A.2d 562 (Pa. 2005), the Plaintiff was entitled to not only underinsured motorist benefits under an applicable policy, but also to medical, wage loss, and other economic damages that may be afforded under that policy.

Judge Geroulo found that the Swords case controlled his decision.  The ruled that, under Swords, the Plaintiff was indeed precluded from recovering first party medical benefits and wage loss benefits as the owner of an registered but uninsured motor vehicle and also that the Plaintiff would be deemed to be covered by the limited tort option.

However, Judge Geroulo ruled that the Plaintiff was not precluded from recovering UIM damages under the circumstances presented. As such, the court ruled that the Plaintiff was indeed eligible to recover uninsured and/or underinsured motorist benefits pursuant to another person’s automobile insurance policy, if the injured party Plaintiff qualified for such coverage under that policy.

Elsewhere in his opinion, the court also denied the Defendant owner’s Motion for Summary Judgment on the negligent entrustment claim. The court found that the Plaintiff had presented sufficient evidence that the Plaintiff Defendant owner knew that the Defendant driver had prior accidents, traffic citations, criminal offenses, past drug and alcohol use, and a problem with low blood sugar. As such, the court found that genuine issues of material fact precluded the entry of summary judgment on the negligent entrustment issue.

I send thanks to Attorney M. Lee Albright of the Pisanchyn Law Firm in Scranton, PA for advising me of this decision.

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

Summary Judgment for Defendant in Lancaster County Trip and Fall on Steps Case

In the recent trip and fall case of Harbison v. JPS Getty, Inc., PICS No. 12-0074 (C.P. Lancaster, Dec. 22, 2011 Knisely, J.) Judge Howard F. Knisely of the Lancaster County Court of Common Pleas ruled that the alleged danger caused by uneven steps at a convenient store should have been known or obvious to a plaintiff and, with the plaintiff having a duty under the law to look where she was walking and see that which was obvious, the court granted the Defendants’ Motion for Summary Judgment.

According to the Opinion, the Plaintiff admitted that she had visited the subject convenient store on numerous prior occasions.

On the day of the incident, as the Plaintiff walked up to the steps to reach the concrete apron surrounding the store, she noticed a woman with a walker exiting the store. The Plaintiff attempted to hold the door open for that person and, without looking down, stepped backwards and fell to the pavement.

The Plaintiff had apparently assumed that there was two steps down off the concrete pad but it turned out that there was only one. The Plaintiff sued, alleging that the steps to the store constituted a dangerous or hazardous condition.

After discovery, the Defendants filed a Motion for Summary Judgment asserting that the Plaintiff had failed to establish a case of negligence.

In agreeing with the Defendant’s position, the trial court relied upon the Superior Court's decision in Villano v. Sec. Sav. Assoc., 407 A.2d 440 (Pa. Super. 1979), in which the court held that uneven steps could be an obvious condition that a defendant was not required to protect a plaintiff against.

The trial court in this Harbison case felt that the alleged danger caused by the steps at the store should have been known and obvious to the Plaintiff. Accordingly, the Defendants were found not to be responsible for the Plaintiff’s injuries.

The Court emphasized in this Opinion that the Plaintiff admitted that she was not looking down when she stepped backwards. It was reiterated in the Opinion that the Plaintiff had a duty to look where she was walking and to see what was obvious.

Anyone desiring a copy of this case may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-PICS and pay a small fee.

Source: Pennsylvania Law Weekly “Digest of Recent Opinions” (Jan. 17, 2012).

Post-Koken Scorecard Updated

Yesterday, I posted my newly created Facebook Discovery Scorecard.  I also had an opportunity to update the Post-Koken Scorecard and you can click on the title of this post to access that Scorecard.  Both Scorecards are always accessible by scrolling down the right hand column of Tort Talk (http://www.torttalk.com/) and clicking on the date below each Scorecard title. 

The decisions in the Post-Koken arena appear to have quieted down a bit.  Now that an increasing number of Post-Koken cases are reaching the trial stage, it can be anticipated that new trial court decisions will be handed down on trial-related issues, including but not limited to, the issue of whether or not consolidated post-Koken cases should be bifurcated into two separate trials, i.e. one trial for the negligence claims against the Defendant driver, and a second trial for the breach of contract claims against the Defendant UIM carrier.