Monday, August 3, 2020

Latest Decision From Pennsylvania Superior Court On Stacking Waiver Forms


In the case of Franks v State Farm Mut. Auto. Ins. Co., 2020 Pa. Super 181 (Pa. Super. July 31, 2020  Lazarus, J., Kunselman, J., McCaffrey, J.)(Op. by McCaffrey, J.), the Pennsylvania Superior Court held that, under Sackett I, 75 Pa.C.S.A. Section 1738(c) requires a new stacking waiver whenever the stacked amount of UIM coverage changes — regardless of whether the change is an increase or decrease in the amount of stacked coverage. 

In so ruling the Court, noted that its interpretation of the issue was consistent with the recognized policy of construing the Motor Vehicle Financial Responsibility Law “liberally in favor of the insured” so as to “afford[ ] the injured claimant the greatest possible coverage.”

Anyone wishing to review this decision 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.

Friday, July 31, 2020

Issues of Fact Preclude Summary Judgment on Excess Coverage Issue


In the case of Farber v. Erie Insurance Exchange, No. 19-CV-2302 (C.P. Lacka. Co. July 8, 2020 Nealon, J.), the court addressed coverage issues pertaining to whether an excess/umbrella policy was precluded by an exclusion. In the end, after finding that the insurance company had not established its position in a fashion that was free and clear from any doubt, the carrier’s Motion for Summary Judgment on the issues presented was denied. 

By way of background, a boat owner, who had been sued in a wrongful death lawsuit involving the use of his motorboat, instituted a coverage action against his excess/umbrella carrier asserting claim for breach of contract, declaratory judgment, bad faith, and violations of the Unfair Trade Practices and Consumer Protection law. 

According to the Opinion, the excess/umbrella policy contained a watercraft exclusion that provided temporary insurance coverage for watercraft “acquired during the policy period,” but that liability coverage “ceases” to exist, if notice is not given [by the insured] within thirty (30) days” of “the date of acquisition” of the watercraft.

According to the record before the court, the insured gained possession of the motorboat on August 5, 2017 and paid the seller for its purchase on August 18, 2017. 

The Commonwealth of Pennsylvania issued title to the boat in the insured’s name on September 6, 2017. 

The fatal motorboat accident occurred on September 26, 2017. 

The carrier filed a Motion for Summary Judgment arguing that the insured has “acquired” the motorboat when he took custody of it on August 5, 2017 and asserted that, as such, the excess/umbrella coverage was allegedly precluded by the watercraft exclusion since the thirty (30) day temporary coverage purportedly lapsed on September 4, 2017, which would have been several weeks before the subject incident. 

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon noted that the carrier had drafted the policy in utilized words such as “acquired” and “acquisition,” rather than words like “possessed” or even “purchased,” in establishing the dates for commencement and cessation of temporary liability coverage for watercrafts. 

The court also noted that the terms utilized by the carrier in the policy were not defined within the policy. 

Turning to ordinary dictionary definitions of the undefined words led the court to conclude that the words used by the carrier mean gaining “ownership” or the “power of disposal” of the watercraft. 

The court also noted that the state regulations indicate that a purchaser of a boat becomes the lawful owner upon obtaining title to the boat. 

Since the court found that different interpretations of the terms at issue gave rise to an ambiguity, and since Pennsylvania law requires that all ambiguities be construed in favor of the insured, Judge Nealon found that the carrier had not established, in a fashion that was free and clear from doubt, that the carrier was entitled to judgement on the question of coverage. As such, the Motion for Summary Judgment filed by the carrier was denied. 

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

Wednesday, July 29, 2020

Discoverability of Documents in Medical Malpractice Case Reviewed


In the case of Telguercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. July 15, 2020 Nealon, J.), Judge Terrence R. Nealon addressed a discovery dispute in a medical malpractice case regarding two (2) event reports should be produced in discovery or are protected from discovery. 

These event reports were submitted to the court for an in-camera review. 

After reviewing the documents at issue, the court found that the documents were indeed discoverable. 

In so ruling, the court reviewed the discoverability of the documents under the Patient Safety and Quality Improvement Act as well as the Peer Review Protection Act. 

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

Tuesday, July 28, 2020

Jurisdictional Issue Found To Have Been Waived


In the case of Murray v. Am. LaFrance, LLC., No. 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (Op. by Bowes, J.), the Pennsylvania Superior Court that the Plaintiffs had waived the effort to establish general personal jurisdiction over a Defendant based upon the Defendant’s registration as a foreign corporation in Pennsylvania.  

The appellate Court found that the Plaintiff failed to raise the issue in response to the Defendant’s Preliminary Objections on the issues presented. 

This matter arose out of claims by the Plaintiff against a foreign corporation for negligence and strict products liability under claims that the Plaintiff suffered injuries due to excessive sound exposure from fire engine sirens that the Defendant company, which was a Delaware company, had manufactured in Illinois, which was where its principal place of business was located. 

The Defendant filed Preliminary Objections to personal jurisdiction and submitted documents to show that only four (4) of its employees resided in Pennsylvania and that only 3.5% of its total sales in 2015 were made to Pennsylvania buyers. 

The trial court had sustained the Preliminary Objections and dismissed the claim after finding that the foreign corporation’s alleged contacts with Pennsylvania were not so continuous and symptomatic to support the exercise of general personal jurisdiction. 

On appeal, the Plaintiffs argued that general personal jurisdiction over the Defendant was proper given the Defendant’s registration as a foreign corporation in Pennsylvania. However, given that the Plaintiff had failed to raise this issue at the trial court level, the Pennsylvania Superior Court affirmed the trial court’s ruling on the separate basis that the issues presented had not been preserved for appeal. 

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

Source: “Digest of Recent Cases.” Pennsylvania Law Weekly (July 6, 2020).

Monday, July 27, 2020

Pennsylvania Supreme Court To Address Whether Amazon Can Be Found Liable In Products Liability Claim


The Pennsylvania Supreme Court has agreed to accept the issue certified to its attention by the Third Circuit Court of Appeals in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020) on the issue of whether Amazon may be held strictly liable in a products liability case where the product that allegedly caused the injury was never possessed or owned by Amazon.

Here is a LINK to the Pennsylvania Supreme Court's Order in which the Court stated the exact issue to be reviewed.

Source:  "Pa. Justices Agree to Take Up Amazon Products Liability Case From 3rd Circuit" by PJ D'Annunzio of The Pennsylvania Law Weekly (July 27, 2020).

SAVE THE DATE: August 21, 2020 CLE-- GOLF LESSONS: Tips for Professionalism and the Ethical Practice of Law By Daniel E. Cummins


LACKAWANNA BAR ASSOCIATION

and 

TORT TALK


Present another One Hour ZOOM CLE


Friday, August 21, 2020 at 1 pm






GOLF LESSONS:

Tips for Professionalism and the Ethical Practice of Law

(1 Ethics CLE Credit)


Presented By

Daniel E. Cummins, Esquire

Cummins Law




Free for LBA Members; Fee for Non-members: $60.00

Registrants Limited to 100 persons


Contact Kaitlin McDonough at kmcdonough@lackawannabar.org to register whether you are a member or a non-member. 

Payment by non-members due on registration.  After contacting Kaitlin McDonough to register, Non-members are requested to go to www.lackawannabar.org and clicking on the “Payments” button at the top of the website.


Technical Support Provided by:



CLE SPONSORED BY:


Issues of Private Nuisance and Public Nuisance Re: Landfill Reviewed


In the case of Baptiste v. Bethlehem Landfill Company, No. 19-1692 (3d Cir. July 13, 2020 Restrepo, J., Roth, J., and Fisher, J.), the court addressed a landfill Defendant’s Motion to Dismiss.

According to the Opinion, the Plaintiffs brought an action against the Bethlehem Landfill Company on behalf of a class of homeowners and renters claiming interference with the use and enjoyment of their homes and a loss in property value caused by the noxious odors and other air contaminants emanating from the landfill. The Plaintiffs brought these claims under three (3) state-law tort theories, that being public nuisance, private nuisance, and negligence. 

The lower court had granted the landfill company’s Motion to Dismiss after finding that too many residents were similarly affected to sustain a private claim for public nuisance, that the odors affected too many people and the landfill was too far away from them to constitute a private nuisance and that the Plaintiffs had failed to identify a duty of care to maintain a negligence claim. 

On appeal, the Third Circuit disagreed and therefore reversed and remanded. The court’s 31 page Opinion makes for an interesting read. 

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

I send thanks to Attorney John P. Finnerty of the Moosic, Pennsylvania offices of Dougherty, Leventhal & Price law firm for bringing this case to my attention