Friday, March 5, 2021







Pennsylvania Superior Court Panel Rejects Pennsylvania Supreme Court's Attempt to Eradicate the Household Exclusion Across the Board

Tort Talkers may recall that the non-precedential decision by the Pennsylvania Superior Court in the case of Erie Ins. Exch. v. King was recently summarized here on Tort Talk.

That King decision, in which the Pennsylvania Superior Court declined to read the Household Exclusion case of Gallagher v. Geico as eradicating that exclusion across the board as intended in that case by the judicially activist Pennsylvania Supreme Court, has now been reissued as a published, precedential Pennsylvania Superior Court decision.

As such the previous Tort Talk Blog post on this case is run again here with the appropriate changes in light of this development:

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.  The Tort Talk post on that case, which contains a link to that decision, can be viewed by clicking this LINK.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. Feb. 5, 2021 Kunselman, J., King, J., Colins, J.)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

Update:  While the Pennsylvania Superior Court initially inexplicably issued this important decision as a non-published and, therefore, non-precedential decision, that status was recently changed on February 5, 2021 and the decision was reissued as a published precedential decision.

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

I send thanks to Attorney Benjamin P. Novak of the Lancaster office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this case to my attention as well as the update.

Please Contact Cummins Mediation Services to Bring Your Case to a Close


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Tort Talk Tip: Eradicate All Typos From Your Writings


Whether it is a simple email, a letter, or a motion or brief, take the time to do focused editing and re-editing to improve your written product in order to ensure the eradication of all mistakes, misspellings, or punctuation errors before you send it out.

If you repeatedly send out writings that contains typoes, you run the risk that your readers may think you lack atention to detail and don't know any better

The trouble with typos in your writings is that they are not only annoying and distracting to the reader, but the reader may think that you do not care enough about your written product to free it from any errors.  And, even worse, if the reader thinks that, they're likely to aslo think, "If they don't care, why should I care about the message or argument the writer is trying to convey?"

To the extent time permits, here are some ways to avoid typos:

-As you write for the first time, be as careful of your digital writing as you would with your print writing

-Edit and re-edit it

-Edit it again by doing multiple focused edits, i.e., one edit devoted to checking punctuation, another edit focused entirely on the propriety of the format of the citations, another edit to make sure the paragraphs transition into one another in a flowing fashion, one edit of the headings and subheadings, an edit to confirm that you addressed the opposing argument and explained it away, an edit to confirm that you brought your own arguments all the way to the end with a recitation of the end relief requested

-Read it out loud

-Use spell-check but don't rely entirely upon it

-Print it out and mark it up

-Put it aside for a day and come back at it fresh

-Have someone else read it

Thursday, March 4, 2021

Luzerne County Court Overturns Large UIM Arbitration Award From Back in the Day

Luzerne County Court of Common Pleas
Wilkes-Barre, PA

In the case of Hartford Fire Insurance Co v. Davis, No.2822-CV-2007 (C.P. Luz.Co. Feb. 11, 2021 Gelb, J.), the court issued a decision on cross motions for summary judgment in a UIM case raising issues as to whether or not the subject policy had certain UIM coverage available.

According to the opinion, this matter arose out of a motor vehicle accident that occured back in 2005 when the plaintiff was allegedly injured while operating his employer's motor vehicle in the course and scope of his employment with Keystone Automotive Operations, Inc. .

Thereafter, the plaintiff pursued a UIM claim against Hartford Fire Insurance Company under an allegation that there was substantial UIM coverage available under that policy.

In 2007, the parties went through a Luzerne County UIM arbitration that resulted in an arbitration award in favor of the plaintiff in the amount of $2,930,000.00. 

Thereafter, Hartford filed a petition to vacate or modify the UIM award. A court order later modified that arbitration award down to 2,000,000.00 to reflect the purported policy limits of that insurance policy.

Judge Lesa Gelb
Luzerne County

In her decision in this case, Judge Gelb noted that the prior court decision had not made a determination of whether or not the subject insurance policy did indeed provide for UIM coverage and, thirteen years after the subject arbitration had occured, that issue was before her on cross motions for summary judgment.

One of the issues raised in this matter were allegations of mistakes made by Hartford regarding the policy forms. In its granting of the carrier’s Motion for Summary Judgment, the court held that the alleged mistakes in the policy form did not automatically result in UIM coverage for the plaintiff.

The plaintiff also asserted that the UIM waiver form executed by Keystone contained language that was inconsistent with that mandated by the Pennsylvania Motor Vehicle Financial Responsibility Law, which according to the plaintiff, rendered the waiver void. In her decision, Judge Gelb, found that the additional language contained in the waiver form was a de minimis variation of the required statutory language and that this variation did not serve to void the waiver.

The plaintiff also asserted in this matter that Keystone Automotive violated the Motor Vehicle Financial Responsibility Law and Pennsylvania public policy by failing to advise its employees that it had waived UIM coverage on the policy covering the vehicles that the employees drove.

In the end, Judge Gelb found that the UIM waiver in the Hartford policy did not violate public policy and further found that the carrier’s failure to advise its employees regarding the waiver of the UIM coverage also did not violate the public policy of Pennsylvania. 

With its decision, the court ultimately vacated the arbitration award.

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

Wednesday, March 3, 2021

Court Applies Pennsylvania Recreational Use of Land and Water Act

Clarion River

In the case of Baird v. Pennsylvania Fish and Boat Commission, No. 2015-226 (C.P. Elk Co. Dec. 28, 2020 Masson, S.J.), the court addressed a Motion for Summary Judgment filed by the Defendant in which the Defendant asserted that it breached no duty to the Plaintiff decedent who died in a canoeing incident on the Clarion River. 

The Defendant asserted that it was immune from liability by virtue of the Pennsylvania Recreational Use of Land and Water Act. The Defendant also asserted that the decedent assumed the right of canoeing under the conditions existing.

After applying the facts to the law in question, the court found issues of fact preventing it from entering summary judgment.

Anyone wishing to review this case in which the current status of the law of the Recreational Use of Land and Water Act is discussed may click this LINK.

I sends to Attorney Owen M. Coleman, Esquire of the Law Offices of Harry Coleman in Carbondale, PA for bringing this case to my attention

Tuesday, March 2, 2021

Plaintiff's Securing of Retroactive Full Tort Coverage After an Accident Allowed To Stand

In the case of Maola v. Monsour, No. 10337 of 2019, C.A. (C.P. Lawr. Co. Dec. 16, 2020 Motto, P.J.), the court addressed various limited tort issues.

The first issue the court addressed was whether the Plaintiff was covered by the limited tort option.

According to the Opinion, the Plaintiff had full tort coverage under her initial automobile insurance policy. When the Plaintiff later changed insurance agents, the Plaintiff expressed that she wished to continue to have full tort coverage. However, the form signed by the Plaintiff included a limited tort election.

The Plaintiff did not discover this mistake until after the accident. She contacted her carrier to see what can be done to remedy that situation. The Plaintiff was advised by the carrier that she could obtain full retroactive coverage if she paid the back premiums and executed a full tort election form. The Plaintiff complied with these requirements and the carrier provided her with full tort coverage that was retroactive to the date prior to the subject accident.

In this matter, the defense asserted that the retroactive application of full tort coverage was not permissible after an accident had already occurred.

The Plaintiff responded by asserting that she had complied with the terms set by her own insurance carrier such that she should be entitled to full tort coverage.

The court acknowledged that Pennsylvania case law holds that a limited tort elector was generally prohibited from retroactively obtaining full tort coverage after an accident had occurred. 

However, in this matter, the Plaintiff’s carrier was not necessarily prohibited from providing the Plaintiff with retroactive full tort coverage. In this case, the Plaintiff offered evidence that she had explicitly requested her new insurance agent to provide her with full tort coverage and that the issuance of a limited tort policy was based upon a mistake. The court also emphasized that the record established that it was the Plaintiff’s intention to have full tort coverage and that she met her own insurance company’s requirements for that retroactive coverage.

As such, Judge Motto found that the Plaintiff had a reasonable expectation of full tort coverage at the time the accident occurred. Accordingly, the court ruled that the Plaintiff was a full tort Plaintiff relative to this matter. 

The court also noted that the Plaintiff had offered sufficient evidence to allow her claim of serious injury to proceed to a jury in any event. The Plaintiff allegedly experienced neck, chest, knee, shoulder, and ankle pain. She also underwent multiple types of diagnostic testing and therapy. The record further established that the Plaintiff had continuously reported her pain as being severe and she offered testimony as to how the pain affected her activities of daily living.

The court emphasized that the focus of the limited tort question was not on the injuries themselves but upon how the injuries affected the Plaintiff’s ability to perform her everyday activities.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 2, 2021).