Tuesday, July 22, 2014

A Split of Authority Develops on Admissibility of Bad Faith Expert Testimony

In his recent decision in the case of Monaghan v. Travelers, No. 3:12CV1285 (M.D.Pa. July 16, 2014 Munley, J.), Judge James Munley bucked the recent trend of Pennsylvania court decisions holding that expert testimony is unnecessary in insurance bad faith cases by ruling that, under F.R.E. 702, each bad faith case should be decided on its own merits in determining whether such expert testimony would be beneficial in assisting a jury of lay people in understanding the issues presented.

In denying the defense motion in limine to preclude the Plaintiff's bad faith expert, the court deferred its decision on whether the Plaintiff's proposed bad faith expert testimony impermissibly addresses the ultimate issues presented.  The court granted the defense the right to raise this objection at trial if necessary.

Anyone wishing to review this decision of Judge Munley in the Monaghan case may click HERE.

I send thanks to Attorneys Scott Cooper and Michale E. Kosik, both of the Harrisburg law firm of Schmidt Kramer, for bringing this case to my attention.

For decisions going the other way, click HERE to review a post on the Federal Western District of Pennsylvania case of Schifino v. GEICO case,  and HERE to go to the Federal Western District Court decision in the case of Smith v. Allstate.

Click HERE to read a post the prior Federal Middle District of Pennsylvania decision issued by Judge Malachy E. Mannion in Scott v. GEICO in which Judge Mannion ruled that bad faith testimony was not necessary in this context.

Release From Liability Form Upheld in Poconos Snow Tubing Case

In his recent decision in the case of Dunlap v. Davenport v. The Villas at Tree Tops and Fairway, PICS Case No. 14-0883 (Monroe Co. April 28, 2014 Williamson, J.), Judge David Williamson of the Monroe County Court of Common Pleas upheld a release from liability form containing an exculpatory clause signed by a Plaintiff relative to the Plaintiff's participation in snow tubing at the Fernwood Hotel and Resort in the Poconos.  

The court found that the release form was a proper contract between the parties and that the Plaintiff was free to go snow tubing elsewhere or simply not go at all.  

The court also rejected the Plaintiff’s contentions that the release form should be deemed to be unenforceable in that it had extremely small printing with all of the writing on a single page.  

The court additionally rejected the Plaintiff’s contention that there was no evidence that the Plaintiff had read and understood the release terms that protected the Defendant from liability arising out of the snow tubing activities.  

The court otherwise rejected an argument that the release form violated Pennsylvania public policy.  

Judge David Williamson
Monroe County
Overall, because the release form was found to be a valid contractual agreement between the parties, Judge Williamson granted the Defendant’s Motion for Judgment on the Pleadings on the personal injury claim.  

The court additionally dismissed the husband’s loss of consortium claim as that claim was derivative of, and dependent upon, the wife’s personal injury claim.  

I do not have a copy of this one.  Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source: "Case Digests," Pennsylvania Law Weekly (June 2014).

Monday, July 21, 2014

Lehigh County Trial Court Dismisses Punitive Damages Claim Based Solely on Cell Phone Use During Auto Accident

In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.

In the opinion, the court noted that there were allegations that the defendant driver was distracted by her cell phone use when she made a slow left hand turn across the Plaintiff's path of travel and an accident resulted.

The court reviewed several cases handed down to date on this issue and essentially ruled that the mere use of a cell phone while driving without more, does not amount to factual support sufficient to sustain an averment of recklessness and attendant punitive damages.  Rather, such allegations only support a claim of negligence.
Anyone wishing to review this cell phone decision out of Lehigh County may click this LINK.

I send thanks to John Hendrzak of the Center Valley, PA law firm of Hendrzak & Lloyd for bringing this notable decision to my attention.

Friday, July 18, 2014

Copy of Northampton County Limited Tort MSJ Case Secured (Ramos v. Jones)

I now have a copy of the Northampton County Court of Common Pleas limited tort summary judgment decision listed in yesterday's Tort Talk post.  Anyone wishing a copy may please contact me at dancummins@Comcast.net.

I send thanks to Attorney Jill Moffitt of the Bethlehem office of Forry Ullman for providing me with a copy.

Summary Judgment Entered for Defendant Based Upon Failure to Make Good Faith Effort to Serve Complaint

In his recent decision in the Jefferson County case of Pearce v. Jones, PICS Case No. 14-0928 (C.P. Jefferson Co. May 23, 2014 Foradora, J.), Judge John Foradora addressed the issue of the applicability of the statute of limitations barring an automobile negligence claim based upon a service on process issue.  

Essentially, the court ruled that the Plaintiff’s failure to make reasonable efforts to serve the Defendant until months after the statute of limitations had expired precluded the Plaintiff from pursuing the action and, as such, the Defendant’s Motion for Summary Judgment was granted.
By way of background, the Plaintiff filed a Complaint on May 28, 2013 alleging personal injuries as a result of a May 30, 2011 motor vehicle accident.   The Plaintiff did not submit a request for service at the time of the filing of the Complaint.  

The statute of limitations then expired on May 30, 2013.
Thereafter, on June 12, 2013, the Plaintiff’s counsel provided the Defendant’s liability carrier’s adjuster with a copy of the Complaint.  
Later, under a September 11, 2013 letter to the Prothonotary, Plaintiff’s counsel enclosed a Praecipe to Reinstate the Complaint, another copy of the Complaint, and a check for the Sheriff’s service fee.  
On September 27, 2013, the Prothonotary advised the attorney as to the correct amount of the fee.  Nearly six (6) weeks later, counsel forwarded a second Praecipe and the correct fee, both of which were delivered to the Sheriff for service.   Service was then unsuccessful. 
On January 24, 2014, Plaintiff’s counsel sent another Praecipe and service was completed upon the Defendant a few days later on January 27, 2014.  
The Defendant filed a summary judgment motion based upon the Plaintiff’s failure to promptly effectuate service.   After finding that the Plaintiff did not make any effort to notify the Defendant of the claim until well after the applicable statute of limitations had expired, the court granted the Motion.
In so ruling, Judge Foradora noted that a Plaintiff making a good faith effort to complete service does to wait nearly four (4) months after the filing to even try to have the Defendant served and then an additional six (6) weeks upon learning of the attorney’s noncompliance with the Prothonotary’s requirement to submit the necessary documents and payment to insure compliance with the service rules.  
The trial court further found that the liability carrier’s knowledge of the suit in June of 2013 did not excuse the Plaintiff’s lack of good faith effort to complete service.  

 I do not have a copy of this one.  Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source: "Case Digests," Pennsylvania Law Weekly (June, 2014).

Limited Tort Summary Judgment Granted in Northampton County

In his recent decision in the case of Ramos v. Jones, PICS Case No. 14-1051 (C.P. Northampton Co. June 18, 2014 Baratta, J.), Judge Stephen G. Baratta of the Northampton County Court of Common Pleas granted a Defendant’s Motion for Partial Summary Judgment in a limited tort case and dismissed the Plaintiff’s claims for non-economic damages.  

According to a summary of the Opinion, the Plaintiff alleged severe, serious and disabling injuries from the accident including sprains and strains of her neck and back as well as injuries to her disc, shoulders, head, and right knee.  She also alleged mental damages such as depression, fear, anxiety, and other emotional injuries.   The Plaintiff additionally asserted that she was unable to pursue her usual occupation as a result of her injuries.  

 In filing a Motion for Partial Summary Judgment, the Defendants asserted that the Plaintiff’s non-economic damages claims were barred by the Plaintiff’s limited tort selection.

 The court granted the Motion for Summary Judgment after indicating that the Plaintiff’s alleged injuries appeared to be soft tissue in nature.   The court also found that the Plaintiff failed to show that these injuries resulted in any substantial interference with any body functions so as to permit a conclusion by the Court that the injuries were serious.  

 The court also found that the Plaintiff failed to prevent objective medical evidence that any pain she experienced following the accident was a result of the accident.    The court noted that the record contained references to long-standing pre-existing neck pain.  

 In granting the Motion for Summary Judgment, the court also noted that the Plaintiff’s post-accident treatment was sporadic and not extensive.

 Given that the court found that no reasonable minds on a jury could differ that there was no serious impairment of a body function on the case presented, summary judgment on the pain and suffering claims was granted.  

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

Source:  "Case Digests" Pennsylvania Law Weekly (July 8, 2014).


Thursday, July 17, 2014


Here is a LINK to my recent article published in the Pennsylvania Lawyer Magazine entitled "Trial Tips 101" which reviews fundamental tips offered in order to try to help make your next trial a bit smoother in terms of preparation and presentation.  Hope you find it somewhat helpful, either as new information or a refresher. 

I send thanks to the editors of the Pennsylvania Lawyer Magazine, Don Sarvey and Geoff Yuda, for agreeing to publish the piece.