Wednesday, January 18, 2017

Judge Terrence R. Nealon of Lackawanna County Addresses "No-Duty Rule"

In his recent decision in the case of Barrett v. Chervanka, No. 14-CV-5175 (C.P. Lacka. Co. Dec. 8, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion for Summary Judgment based upon the “no-duty rule” and the alleged actions of any duty on the part of the Defendant bowling lane operator.  

According to the Opinion, a minor Plaintiff’s injury allegedly resulted from a minor Defendant’s release of her bowling ball from the runway approach alignment dots, located twelve (12) feet before the prescribed foul line and the Defendant’s failure to observe the minor Plaintiff who was positioned at the foul line as the minor Defendant was releasing his bowling ball. 

Judge Nealon noted that, under the “no-duty” rule, the operator of an amusement facilities owes no duty of care to protect its business invitees against risks that are common, frequent, expected, and inherent in the amusement activity.   Here, the court found that, although the sport of bowling involves certain apparent risks, the minor Defendant’s conduct and its associated hazards were not found to be common, frequent, and expected risk that are inherent in bowling.   Accordingly, the court found that the bowling lane operator had not established that the “no-duty” rule bars the Plaintiff’s claims.  Consequently, the court denied the Defendant’s Motion for Summary Judgment.

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

Monday, January 16, 2017

Judge James M. Munley of Federal Middle District Court Addresses UIM Statute of Limitations

In the case of Legos v. Travelers Cas. Co. of Conn., 3:16-cv-1917 (M.D. Pa. Dec. 19, 2016 Munley, J.), Judge James M. Munley addressed the issue of the statute of limitations in a UIM case.

According to the Opinion, the third party case Release was signed in March 2012.  The settlement monies were received by the Plaintiff in April 2012. 

The Plaintiff’s UIM suit was filed in April 2016. 

The insurance company argued that the statute of limitation expired because the UIM claim had to be filed within 4 years of the date of the Release. 

The insured asserted that the statute of limitations was met because suit was filed within 4 years of when the settlement monies were received. 

Judge Munley ruled that issues of fact remained about when the insured recognized the third party was an underinsured motorist.  As such, the carrier’s motion to dismiss was denied.

Anyone wishing to review this Opinion may click this LINK.

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

Pennsylvania Supreme Court Agrees to Address Important UM/UIM Statute of Limitations Issue

In a recent Order, the Pennsylvania Supreme Court agreed to consider the issue of whether an unopposed demand for arbitration is enough to toll the statute of limitations for bringing an uninsured motorist claim that is subject to mandatory arbitration, or does a petition need to be filed with the Court to protect the statute.  

This Order was handed down in the case of Erie Insurance Exchange v. Bristol, No. 439 MAL 2016 (Pa. Dec. 29, 2016).  

The Pennsylvania Superior Court previously ruled in this matter that the statute of limitations on an uninsured motorist claim had not been tolled despite the parties corresponding about the mandatory arbitration and even selecting arbitrators.   The Superior Court's decision upheld the trial court’s ruling from the Montgomery County Court of Common Pleas, which had granted summary judgment in favor of the UM carrier.  

Anyone wishing to review a copy of this Supreme Court Order may click this LINK.

Source: “Supreme Court to Mull UM Arbitration Preservation”  By:  Max Mitchell of the Pennsylvania Law Weekly (Jan. 10, 2017).  

Eastern District Federal Court Denies Motion to Sever and Stay Bad Faith Claims in Post-Koken Matter

In the case of Zinno v. GEICO¸ No. 16-792 (E.D. Pa. Nov. 21, 2016 Baylson, J.), the court denied the carrier’s Motion to Bifurcate the breach of contract and bad faith claims in this UIM case. The court also denied the carrier’s Motion for a Stay of the discovery on the bad faith side of the claim.  

The court denied the motion after finding that factors pertaining to the convenient to the parties, avoidance of prejudice, or efficiency did not warrant the bifurcation of the two (2) claims or the request for a stay of discovery.   

Anyone wishing to review this decision, may click this LINK.

I send thanks to Attorney Lee Applebaum of the law firm of Fineman Krekstein & Harris for bringing this case to my attention through his Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.  

Thursday, January 12, 2017

Judge Minora of Lackawanna County Addresses Requests for Multiple Out-of-Town IMEs

"An injured plaintiff is not a pinata to be poked and prodded until the candy comes out."

In his recent Opinion and Order in the case of Christian v. Weis Markets, Inc., No. 2015-CV-4288 (C.P. Lacka. Co. Dec. 8, 2016 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion to Compel a Plaintiff to undergo two (2) independent medical examinations by two (2) separate orthopedic surgeons, one a hand specialist and the other a sports medicine specialist.   Both of the IME doctors were located outside of Philadelphia and this matter involved a Lackawanna County litigation.  

Senior Judge Carmen D. Minora
Lackawanna County

In his Opinion, Judge Minora emphasized that Pa. R.C.P. 4010(a)(2), which rule pertains to “Physical and Mental Examination of Persons,” provides for “a,” meaning one, physical exam.  The court did also note that Pa. R.C.P. 4012 may provide more flexibility to the court and allow for discretion to order additional examinations where appropriate.  

But multiple IMEs were not found to be warranted in this case. In somewhat colorful language, Judge Minora noted that “[a]n injured Plaintiff is not a piƱata to be poked and prodded until the candy comes out.”  

Overall, the court found that commonsense, judicial economy, and the minimization of cost and expenses, and the protection of a Plaintiff’s right to privacy and vision by Pa. R.C.P. 4010(a) compelled the court to allow the defense only one (1) comprehensive omnibus independent medical examination to address all of the Plaintiff’s alleged injuries flowing from all of her parts of anatomy.   The court further indicated that the defense could select a doctor from either Lackawanna or Luzerne County to perform the examination.  

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


I send thanks to Attorney Scott Cooper of the Harrisburg, Pennsylvania law firm of Smith Kramer for bringing this decision to my attention.  

Make Choices to Make 2017 a Less Stressful Year

Here is a LINK to a blog post entitled "7 Ways Lawyers Can Handle Stress and Avoid Attorney Burnout" from the Legal Productivity Blog.

The post provides some good tips for keeping it all in balance--make time for exercise, close your eyes, clear your mind and meditate for a few minutes everyday, meet with friends for lunch.

Getting up off your butt more often is also recommended.  An easy way to do this is to stand up whenever you are talking on the phone at your desk.

Another good tip is to get rid of, or decline, troublesome clients--they are not worth the stress they cause and, in most cases, are never satisfied in any event.  To the extent you can't follow this advice, make a point to stand your ground and demand the respect (and payment) you are entitled to from the client.

Also, the post recommends making sure you don't skimp on vacation time.  We at the beginning of the year now--look at your calendar and plan those 2017 vacations or long weekends now while the calendar is a clean slate.

The post also recommends shifting your focus on the practice of law.  Think back to why you wanted to become a lawyer and feed off of that in your practice going forward

Tuesday, January 10, 2017

Motion to Sever and Stay Post-Koken Bad Faith Claim Denied in Northumberland County

In what may be the first decision of its kind out of Northumberland County, Judge Hugh A. Jones denied a UIM carrier's Motion to Sever and Stay a Bad Faith claim in the case of Kerchoff v. Donegal Ins. Group, No. 16-CV-1266 (C.P. Northumberland Jan. 4, 2017 Jones, J.).

This Post-Koken matter involved bad faith and breach of contract UIM claims asserted following a motor vehicle accident.

Attorney Valeen Hykes of the Frackville, PA law firm of Michael J. O'Connor & Associates, LLC was the primary attorney for the Plaintiff in this matter.  I send thanks to Attorney David A. Miller of the same firm for bringing this decision to my attention.

Anyone wishing to review this Order only may click this LINK.