Superior Court Affirms Entry of Nonsuit Where Trial Court Precluded Plaintiff's Liability Expert For Giving a 'More Likely Than Not' Expert Opinion

In the case of Peterson v. Stacy’s Pizza, Inc., 315 EDA 2024 (Pa. Super. Jan. 14, 2025 Dubow, J., Sullivan, J., and Olson, J.) (Op. by Dubow, J.; Olson, J, concurring), the Pennsylvania Superior Court affirmed the entry of a nonsuit entered by the lower court after finding that the Plaintiffs did not meet their burden of proving the case presented.

According to the Opinion, the Plaintiff was allegedly injured when he was hit by a swinging door while making a delivery.  The Plaintiff retained a liability expert to testify at trial on a opinion on whether the door in question was defective.   

In this decision, the Pennsylvania Superior Court again confirmed that an expert opinion on causation to a reasonable degree of engineering certainty that the condition on the Defendant’s property “more likely than not” caused the Plaintiff’s injury was properly excluded by the trial court as not actually being an expert opinion to a reasonable degree of certainty.

The court noted that the Plaintiff’s expert’s opinion only stated that the Defendant’s improper maintenance was more likely than not the cause of the injury.

The Superior Court noted that, because the Plaintiff in this case had rested his case when it became clear that a fatal expert exclusion would cause a nonsuit, and where the Plaintiff did not thereafter present any evidence of damages, any error possibly committed by the trial court in terms of entering a nonsuit would have been harmless in any event.

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 the Reed Smith law firm for bringing this case to my attention.

Superior Court Reviews Vicarious Liability of Domino's In MVA Case, And Whether Trial Court Decision on MSJ Remains Reviewable on Appeal After Entry of Verdict

In the case of Coryell v. Morris, No. 1977 EDA 2021 (Pa. Super. Jan. 31, 2025) (en banc) (Op. by Bowes, J.), the Pennsylvania Superior Court ruled that a Domino’s franchise relationship with the delivery driver’s employer created grounds for the pizza chain to be bound vicariously liable for the driver’s negligence during the course of a motor vehicle accident.

Some litigators viewed the court’s analysis in this case as setting up a framework for establishing a franchiser’s vicarious liability in cases involving alleged negligence on the part of a franchisee.

In this decision, the Superior Court found that there was sufficient evidence in the records to show that the franchiser exercised sufficient control over the franchisee to support the finding of vicarious liability.

Also of note was the fact that the Superior Court ruled that a jury’s resolution of the factual issues presented in the case, which involve, in part, factual disputes regarding Domino’s control over the franchisee, such findings by the jury rendered the propriety of the trial court’s summary judgment ruling moot. More specifically, the Superior Court in this case ruled that “[a] trial court’s denial of a fact-dependent pre-trial [motion for summary judgment] is not reviewable when the issue was subsequently resolved at trial.”

It is noted that, in the Dissenting Opinion, Judge King noted that the Superior Court should have decided that it remained capable of reviewing the trial court's denial of the pre-trial Motion for Summary Judgment given the confusion in the caselaw surrounding the issue at the time the trial court ruled on the motion.   

In the end, the Superior Court’s ruling in this case rendered Domino’s Pizza again responsible, at least in part, for the $2.3 million dollar judgment awarded to the Plaintiff motorcyclist who was struck by a Domino’s Pizza delivery driver’s vehicle.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge King can be viewed HERE.

Source: “Pa. Superior Court Rules Pizza Chain Liable For Franchisee Driver’s Crash” by Aleza Furman of the Legal Intelligencer (Feb. 4, 2025).

Superior Court Confirms That Auto Carriers Can Charge a Premium For Stacked Coverage on a Single Vehicle Policy

In the case of Higgins v. Nationwide Affin. Ins. Co., No. 752 EDA 2023 (Pa. Super. Dec. 26, 2024 Stabile, J., Dubow, J. and Sullivan, J.) (Op. by Sullivan, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of the Defendant carrier in a case where a class of Plaintiffs complained that they were charged a premium for stacked coverage on a single vehicle policy.

The Pennsylvania Superior Court found that there was no unjust enrichment or fraud arising from the carrier charging a premium for stacked coverage benefits to a single-vehicle policy for an insured who lived in a household with no other auto policy as there were circumstances that could arise where the single-vehicle policy holder could obtain stacked coverage.

The court cited to other previous Pennsylvania decisions in which it had been held that a single-vehicle policy holder could benefit from stacking where the individual is injured in a vehicle other than his or her own insured vehicle and is an insured under the non-owned vehicle’s policy, which also has uninsured or underinsured motorist coverage, such as an employer’s vehicle. Other additional scenarios were noted in the Opinion under which a single-vehicle policy holder may secure a benefit from stacking of UM/UIM coverages.

Accordingly, the Superior Court affirmed the trial court’s ruling granting summary judgment in favor of the carrier.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).

Source of image:  Photo by Vlad Deep on www.unsplash.com.

Superior Court Reviews Duty of Uninsured Motorist Plaintiff To Report the Accident To the Police

In its recent non-precedential decision in the case of Pummer v. Engelbrecht, No. 252 EDA 2024 (Pa. Super. Dec. 30, 2024 Bowes, J., Nichols, J., and Sullivan, J.) (Op. by Nichols, J.) (Bowes, J. concurring), the court addressed whether an uninsured motorist carrier must show prejudice before its denial of a UM claim due to the failure of the injured party to report the accident to the police.

In this case, the Pennsylvania Superior Court reviewed the rules surrounding the notice requirements following an uninsured motorist accident. 

The court noted that an uninsured motorist vehicle is defined under the Vehicle Code as (1) a motor vehicle for which there is no liability coverage, (2) a motor vehicle for which liability coverage has been denied by the insurance company, or (3) an unidentified motor vehicle (a hit and run motor vehicle) that causes an accident resulting in an injury, provided that the accident is reported to the police or proper governmental authority and the claimant notifies his insured within thirty (30) days, or as soon as practicable thereafter.

The Pennsylvania Superior Court cited to other cases that confirm that the notice requirement is to prevent fraud in this area of automobile insurance claims.

The Pummer court reviewed the jurisprudence in Pennsylvania as to whether or not a carrier must show prejudice in order to support a denial of uninsured motorist coverage claim based upon the fact that the claimant did not report the accident to the police.

The Superior Court noted that the most recent precedent on this case from the Supreme Court held that whether prejudice is required must be addressed on a case-by-case basis. In this regard, the court noted that a carrier can show prejudice where an insured’s delay in reporting the accident results in an inability on the part of the carrier to thoroughly investigate the claims presented.

The Pummer court noted that there can be a distinction in hit and run cases between those cases where the driver causing the accident is never identified and where the hit and run driver is identified. 

In Pummer, where the hit and run driver turned out to be a driver that was identified, the court concluded that the absence of police report being generated for the accident was not fatal to the Plaintiff’s uninsured motorist claim.

One the factors relied upon by the court in this case was the fact that the injured party was a passenger in an Uber vehicle and, as such, did not have any duty to obtain the identity of the tortfeasor driver. Moreover, the court in this case emphasized that the injured party did make numerous efforts to attempt to gather information on the identity of the tortfeasor driver through requests made to the Uber driver and that driver’s carrier.

As such, the Superior Court found that the trial court erred when it granted the UM carrier’s Motion for Summary Judgment on the basis that the Plaintiff failed to report the subject accident to the police. The appellate court overruled the trial court and denied the motion on the basis that there were issues of fact that precluded summary judgment.

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

Mock Trial Jurors Needed for This Thursday in Lackawanna County -- Please Consider Volunteering To Serve as a Juror

 

Plaintiff Found To Have Offered Sufficient Expert Testimony In Support of a Delayed Cancer Diagnosis

In the case of Delavern v. Health Services of Clarion, Inc., No. 858 WDA 2024 (Pa. Super. Jan. 6, 2025 Bowes, J., Beck, J., and Bender, P.J.E.) (Op. by Bowes, J.), the court affirmed the entry of judgment against a medical malpractice Defendant in which a jury entered an award of $7.3 million dollars. The case involved a medical malpractice action with allegations of a delayed diagnosis.

According to the Opinion, the Plaintiffs had claimed that a physician’s assistant affiliated with a Defendant incorrectly diagnosed the Plaintiff with a separate condition other than the cancer which was later found relative to the patient. The Plaintiffs alleged that the supervising physician signed off the on the physician’s assistant’s notes without properly reviewing them and also failed to refer the Plaintiff for further screening.

The Plaintiffs claimed that the Defendant’s negligence resulted in a 13-month delay in the Plaintiff receiving a cancer diagnosis, which thereby allegedly allowed the cancer to progress from a curable stage to an incurable one.

On appeal, the Pennsylvania Superior Court rejected a Defendant’s argument that the Plaintiffs’ oncology expert failed to show that the Plaintiff experienced a worse health outcome as a result of a delayed cancer diagnosis.

The trial court and the Superior Court both agreed that the Plaintiff’s expert offered sufficient proof of an increased risk of harm caused by the Defendant’s negligence so as to allow the issuance of causation to go to the jury.

Anyone wishing to review this non-precedential decision of the Superior Court may click this
LINK.


Source – Article: “Superior Court Rejects Pa. Hospital’s Challenge to $7.3M Med Mal Judgment,” by Aleeza Furman of The Legal Intelligencer (Jan. 6, 2025).

Court Rules That Seasoned Federal Middle District Attorneys Can Expect Hourly Rates of $375 Per Hour For Attorney's Fees Requests

In the case of Holmes v. American Homepatient, Inc., No. 4:21-CV-01683 (M.D. Pa. Jan. 28, 2025 Brann, C.J.), the court granted, in part, a Plaintiff’s Motions for Attorney’s Fees Under 42 U.S.C. §1988.

In his decision, Chief Judge Brann reviewed a Plaintiff’s law firm’s request for $2.45 Million Dollars in attorney’s fees and allowed for such fees but cut down the amount requested to just over $250,000.00. In coming to amount of fees awarded, the court reduced the hourly rates pled and the hours logged.

This attorney’s fees request came after the Plaintiff prevailed in a hostile work environment case against her former employer. According to the below cited article on this case, while the Plaintiff had originally secured a verdict that included $20 million dollars in punitive damages and $500,000.00 in compensatory damages, in another, previous decision rendered in this case, the court subsequently reduced that verdict to $1 million dollars.

After reviewing attorney's fees awards in the Federal Middle District Court of Pennsylvania for the past five (5) years, Chief Judge Matthew W. Brann determined in this matter that the district court regularly awarded attorney fee rates ranging from $100.00 to $375.00 depending upon skill, experience, the complexity of the case, and other factors.

Chief Judge Matthew W. Brann
M.D.Pa.

In this case, finding that the Plaintiff’s lead attorneys, who have been practicing for twenty-eight (28) years and twenty-four (24) years respectively, the court awarded those attorneys hourly rates of $375.00 per hour. The lesser involved attorneys with lesser experience were awarded hourly rates of $300.00 per hour and $250.00 per hour. The court also reduced the paralegal hourly rates down to $150.00 per hour and $115.00 per hour, based upon the factors noted.

The court otherwise cut down purported travel time and other hours of work on post-trial motions. Chief Judge Brann noted that many of the post-trial motions were not complex and did not propose novel questions.

The court also agreed with the Defendant’s argument that, overall, the fees requested should be slashed by 5% because of the Plaintiffs’ attorneys’ use of quarter-hour and half-hour increments for billing.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: Article – “Judge Tanks Prevailing Pittsburgh Attorneys’ $2.45M Fee Request to $250K,” by Riley Brennan, The Legal Intelligencer (Jan. 29, 2025).

Source of top image:  Photo by Towfiqu Barbhuiya on www.pexels.com.