Selected to Appear in Best Lawyers in America Under Category of "Personal Injury - Defense"

Proud to note selection to appear in The Best Lawyers in America under the category of “Personal Injury – Defense” as the only civil litigation defense attorney in this category in northeastern Pennsylvania.

Lawyers named to The Best Lawyers in America© publication were recognized by their peers in the legal industry for their professional excellence in 146 practice areas. For the 2020 Edition of The Best Lawyers in America, 8.3 million votes were analyzed, which resulted in the inclusion of more than 62,000 lawyers, or approximately 5% of lawyers in private practice in the United States.

Best Lawyers is the oldest and most respected lawyer ranking service in the world. For almost 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or unfamiliar specialties. 

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Tort Talk Tip: Saying Please and Thank You Will Separate You

The simple act of always saying "Please" and "Thank you" in all of your interactions with any person will separate you from your competitors in business.

Trial Court Finds That Regular Use Exclusion Applies to Rental Vehicle Rented by Employer for Employee's Use

In the case of Rawl v. Geico, No. 11435-CV-2018 (C.P. Beaver Co. July 1, 2019 Ross, J.), the court issued an Opinion in a declaratory judgment action instituted by a Plaintiff against Geico Insurance Company in which the Plaintiff sought a judicial declaration on an issue of coverage involving the regular use exclusion under the policy.  

According to the Opinion, the Geico policy contained a regular use exclusion applicable to UIM claims under the policy, which exclusion provided that when an insured is “using a motor vehicle furnished for the regular use of you, your spouse, or a relative who resides in your household, which is not insured under this policy” coverage is excluded.  

The Plaintiff in this matter was involved in a motor vehicle accident that was the fault of a third party tortfeasor.   The Plaintiff secured the liability limits from the tortfeasor and then turned to Geico for UIM coverage.

At the time of the accident, the Plaintiff was occupying a Dodge Ram van which had been rented by his employer, State Industrial Products, from Enterprise Rent-A-Car.   The The plaintiff was using the rental van because his employer’s regular work van was out of service on the date of the accident.  

The rental van was insured by Traveler’s Insurance Company and provided UIM coverage, which the Plaintiff received.  As noted, the Plaintiff then made a claim for additional UIM benefits under his own policy with Geico.  Geico denied the claim based upon the regular use exclusion contained in the Geico policy, asserting that the rental van in question was a temporary substitute vehicle for the Plaintiff’s work van.  

The parties agreed in a joint stipulation of facts that the rental van in question was not a part of the regular fleet of vehicles owned and operated by the Plaintiff’s employer.   It was further agreed that the rental van had been picked up and rented for only one or two days leading up to the subject accident.   It was additionally agreed between the parties that the Plaintiff had not operated that same rental van on any prior occasion for any purpose.  

Based upon the facts before the court, the parties filed cross-Motions for Summary Judgment.  

The defense asserted that the Plaintiff in this matter was operating a rental vehicle which was a replacement for his regularly used company provided vehicle.   The Defendant carrier submitted that this is a distinction without difference with respect to the regular use exclusion since the vehicle in question was available for the Plaintiff’s regular use at the time of the accident.   The carrier asserted that the fact that the Plaintiff may have used the rental vehicle on only one or two occasions prior to the accident was not material. The fact remained, according to the defense, that the vehicle was furnished and available for the Plaintiff’s regular use.  

In contrast, the Plaintiff pointed to the stipulation of the parties confirming that the rental van in question had only been rented for one or two days before the incident and not any extended period of time to qualify as a temporary substitute vehicle under the policy.   The Plaintiff also emphasized that he did not operate the same rental van on any prior occasion for any purpose.   As such, the Plaintiff asserted that the rental van did not fall within the definition of a vehicle furnished for the regular use of the Plaintiff.  

After a review of the positions of both parties in this matter, as well as a summary of the current status of Pennsylvania law on the regular use exclusion, the court noted that the case before it appeared to be one of first impression.  

Based upon his review of several cases involving the regular use exclusion, Judge Ross held that the exclusion applied in this matter to warrant summary judgment in favor of the Defendant insurance company. 

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonald, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.  

Several Notable Civil Litigation Trial Issues Addressed By Pennsylvania Superior Court

The Pennsylvania Superior Court addressed several notable recurring civil litigation issues in the case of Nazarak v. Waite, 2019 Pa. Super. 235 (Pa. Super. Aug. 2, 2019 Lazarus, J., Murray, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

The case arose out of a rear end motor vehicle accident.  The Plaintiff was driving a commercial vehicle and was on the job at the time of the accident.  As such, he received worker's compensation benefits in the form of medical payments and indemnity payments.

The case proceeded through discovery and a trial at which a verdict was entered in favor of the Plaintiff.  On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's post-trial motions.

Among the notable rulings by the Pennsylvania Superior Court were the following:

-Issues regarding the admission of the worker's compensation lien into evidence.

The Pennsylvania Superior Court affirmed the trial court's ruling to allow the Plaintiff to present to the jury the amount of the worker's compensation lien. 

 The Superior Court rejected the defense contention that the admission of the evidence pertaining to the lien violated the collateral source doctrine.  The Court noted that the reasoning behind the doctrine was not implicated in this case because it was the Plaintiff who was introducing the evidence of a prior recovery and not the Defendant.

The Nazarak Court also rejected the defense argument that the admission of the lien amount into evidence and the allowance of a recovery in that regard amounted to a double recovery for the Plaintiff.  The Court confirmed that the Plaintiff was required to pay back the lien amount to the worker's compensation carrier and that, as such, there was no double recovery by the Plaintiff.

The Superior Court also rejected the defense contention that, by allowing into evidence the fact that the Plaintiff had been paid such medical and wage loss benefits, the trial court usurped the function of the jury to decide the issue of causation because such evidence suggested that the Plaintiff's injuries were from the accident.  This contention by the defense was rejected by the Superior Court in this Narzarak decision.

-The Court also rejected the defense argument that it was error for the trial court to have allowed the introduction of the compromise and release document from the worker's compensation case into evidence at trial.  The defense had asserted that this was impermissible evidence of a settlement agreement in violation of 42 Pa.C.S.A. Section 6141.  The Superior Court noted that the Defendants in this case were not parties to that separate worker's compensation settlement agreement and, as such, Section 6141 was not directly implicated.  However, the Superior Court went onto note that while the admission of this evidence may have violated the letter of the law in Section 6141, such an error was not a reversible error where the evidence was only used by the Plaintiff to establish the amount of the lien and not with respect to proving any liability issues (liability was admitted by the defense at trial).


-Issues regarding the presentation of expert testimony.

The Court in Nazarak rejected the defense contention that the Plaintiff's vocational expert was allowed to testify beyond the fair scope of her report.  After reviewing the expert's testimony as compared to the expert's report, the Court rejected this argument.

The Court also rejected the argument by the defense that the Plaintiff had violated the hearsay rule by utilizing the Plaintiff's testifying orthopedic expert report to comment upon the report and opinions of a neuro-radiologist expert who was not called to testify.  The defense contended that this strategy violated the rule of law that prohibited one expert from acting as a mere conduit for the opinion of another expert.  The Nazarak court reviewed the testimony of the testifying orthopedic expert and found that that expert had not merely acted as a conduit for the other expert's opinion, but rather had permissibly referred to and relied upon that other expert's opinions to formulate the orthopedic expert's own opinions on the case presented.


Anyone wishing to review this case may click this LINK.

No Subrogation Allowed Against Third Party Tort Recovery Where Heart and Lung Benefits Were Paid

In the Commonwealth Court case of Kenney v. WCAB (Lower Pottsgrove Twp.), No. 845 C.D. 2018 (Pa. Cmwlth. Aug. 2, 2019)(Op. by Leavitt, P. J.), the Court held that there is no subrogation allowed against a third party tort recovery by a Plaintiff in a motor vehicle accident case when the benefits that were previously paid to the injured Plaintiff by the lienholder were Heart and Lung Benefits.  The Court ruled that this is so even if the benefits are paid out of a Trust.

In so ruling, the Commonwealth Court followed the Pennsylvania Supreme Court's decision in the case of Pennsylvania State Police v. WCAB (Bushta), 183 A.3d 958 (Pa. 2018)(Bushta II).

According to the Opinion, this matter arose out of a work-related car accident when the Plaintiff's police cruiser was struck by another vehicle.

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

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this decision to my attention.

Competency of Medical Expert To Testify In a Specific Area Addressed

Dr. Orin Scrivello, DDS in The Little Shop of Horrors

In the case Phillips v. Gilbert, July Term 2016 No. 02819 (C.P. Phila. Co. June 17, 2019 Lauchman, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision that the Plaintiff’s expert in a dental malpractice case, who had never performed a dental implantation procedure during his lengthy career as a dental pathologist, lacked the training, experience, and knowledge necessary to testify regarding the standard of care applicable to the dental implant procedure that had been performed on the Plaintiff by the Defendant.   

The court noted that the Plaintiff’s expert was an oral and maxillofacial pathologist and not an oral and maxillofacial surgeon.  

Given that the court barred the Plaintiff’s expert from testifying, the Plaintiff was found to be unable to establish a prima facie case of negligence.  As such, the trial court granted a compulsory non-suit in favor of the Defendant and denied the Plaintiff’s post-trial motion.   The Plaintiff filed an appeal which prompted this Rule 1925 Opinion by the court.  

In its Opinion, the trial court emphasized that oral and maxillofacial surgeons and pathologists undergo completely different training and performed completely different procedures on patients.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 16, 2019). 

PBA QUARTERLY ARTICLE: HURRICANE KOKEN RAGES ON: Uncertainty Continues in Motor Vehicle Accident Litigation in the Stormy Post-Koken Era

Here is a LINK to a recent article of mine that was published in the July, 2019 edition of the Pennsylvania Bar Association Quarterly entitled "Hurricane Koken Rages On:  Uncertainty Continues in Motor Vehicle Accident Litigation in the Stormy Post-Koken Era."

The article provides an overview of the 14 years of jurisprudence in this area of law since the Koken decision was handed down in 2005 allowing UM/UIM carriers to remove arbitration clauses from their policies and instead allowing for these claims to proceed by way of a lawsuit.

To date, there has been only scant appellate guidance on the many novel issues of law presented by this form of automobile accident litigation.  As such, litigators in this arena must still rely upon the common law being created across the Commonwealth of Pennsylvania through trial court decisions on the various issues presented.

In addition to providing an overview of the law as compiled on the Post-Koken Scorecard from the Tort Talk Blog (www.TortTalk.com), the article also encourages litigators to take Post-Koken issues up on appeal, urges the Pennsylvania Superior Court to publicize all of its Post-Koken decisions and not merely list them as non-precedential, and requests that the Pennsylvania Supreme Court consider accepting any and all Post-Koken issues that go all the way up the appellate ladder, all in order to ensure that much needed appellate guidance can be generated for the benefit of both the bench and the bar sooner rather than later.

I thank the editorial board of this publication of the Pennsylvania Bar Association for selecting this article for publication.  I also thank Professor Robert E. Rains, of the Dickinson School of Law, for his excellent editorial input on the article.

Should I be able to assist anyone with any Post-Koken issues from pleadings to discovery to trial, please do not hesitate to contact me.  Please also do not hesitate to contact me for free copies of any cases you find on the Post-Koken Scorecard that may assist you in your own case.

I ask that, should anyone generate a Post-Koken decision (even if only by Order) in any court, that you please consider sending me a copy in order that I may both share that decision with the readers of Tort Talk and also update the Post-Koken Scorecard.

Thank you,

Daniel E. Cummins