Wednesday, November 23, 2022

Carrier Prevails In Another Business Interruption Coverage Case Arising Out of COVID-19 Closures

In the case of The Foundation for Indiana University of Pennsylvania v. Utica Nat’l Ins. Group, No. 2:22-CV-01126-AJS (W.D. Pa. Oct. 6, 2022 Schwab, J.), the court ruled that, given the language of a business insurance policy’s virus exclusion, and based upon the facts as pled by the Plaintiffs, the court ruled that business interruption coverage would be excluded for any of the Plaintiffs’ alleged economic losses and countered when the four (4) dormitories on the college campus were ordered to be vacated during the COVID-19 pandemic.

Moreover, the court found that the Plaintiff’s claims failed to trigger coverage under the policy at issue because the Plaintiffs’ dormitories did not sustain a direct physical loss of, or damage to, their actual structures.

Accordingly, the court ruled in favor of the insurance carrier on the Plaintiff’s claim for a declaration of a finding of coverage and on the related claims for breach of contract and bad faith.

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

I send thanks to Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this case to my attention.

Source of image:  Photo by Tim Mossholder on

Carrier Wins Another COVID-19 Business Interruption Coverage Case

In the case of In Re Erie COVID-19 Bus. Interruption Prot. Ins. Litig., No. 1:21-mc-1 (W.D. Pa. Oct. 14, 2022 Hornak, J.), the court granted the Defendant carrier’s Motion to Dismiss the Plaintiffs’ action for coverage for COVID-19 business losses under their commercial property insurance.

The court found that the Plaintiffs did not show the required direct “physical loss or damage to” their properties.

The court additionally found that the policy’s virus exclusion provisions also applied to prevent coverage.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 3, 2022).






Dan Cummins

Tuesday, November 22, 2022

Federal Magistrate Judge Addresses Excessive Force Civil Rights Claims

In the case of Thompkins v. Klobucher, No. 2:21-CV-00320-CRE (W.D. Pa. Oct. 3, 2022 Reedy Eddy, M.J.), the court addressed a Motion for Summary Judgment filed by a Defendant police officer in a §1983 Civil Rights Action alleging excessive use of force.

According to the Opinion, the Plaintiff wife’s arm was broken was she was being arrested for domestic violence.

In reviewing the Defendant police officer’s Motion for Summary Judgment, the court found that there were genuine issues of material fact to be decided by a jury with regards to the alleged excessive force claim.

The court also found that the police officer was not entitled to qualified immunity at this stage of the proceedings.

As such, the police officer’s Motion for Summary Judgment was granted in part and denied in part.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 20, 2022).

Monday, November 21, 2022

Pennsylvania Superior Court Provides Appellate Guidance on Propriety of Allegations of Recklessness

In the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam), the Pennsylvania Superior Court, in a split decision, addressed the issue of the propriety of allegations of recklessness in a premises liability case regarding injuries that the Plaintiff sustained while utilizing a zip-line.

In the Majority Opinion of this case, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action.   As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally.  In this regard, the court cited, in part, the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009).

I note that, in footnote 6 of the Opinion, the Majority cited to the review of the split of authority amongst the trial court judges across the Commonwealth on this issue as set forth in my article, “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93 Pa. B.A.Q. 32 (Jan. 2022). 

Notably, in that same footnote, the Superior Court pointed to the case of Koloras v. Dollar Tree by Judge Terrence R. Nealon of Lackawanna County as an example of a trial court decision that had previously properly decided this issue, i.e., that allegations of recklessness were allegations of a state of mind that could be pled generally.

The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the split of authority amongst the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove[] any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the Defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.” See Op. at 24, n. 6.

In other words, under the Majority Opinion, a Plaintiff may plead recklessness in any case whatsoever with reckless abandon.  The court suggested that a defendant can revisit the issue by way of a summary judgment motion after the discovery in the case has been completed.

In two separate Dissenting Opinions in the case, one by President Judge Emeritus Bender and one by Judge Stabile, the alternative rule was advocated based upon 50 years of precedent, that being that a Plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, that viewpoint, as found in the Dissenting Opinions, was not adopted by the Majority of the judges on this case.

It is noted that my above-referenced Pennsylvania Bar Quarterly article entitled “Pleading for Clarity” was also cited on page 2 of Judge Bender’s Dissenting Opinion as outlining the previous existing split of authority on the issue presented in trial courts across the Commonwealth.

That split of authority has been put to rest by this appellate guidance provided by the Pennsylvania Superior Court in the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort.    

Anyone wishing to review a copy of the majority Opinion in this case may click this LINK.

The dissenting Opinion by Judge Bender may be reviewed at this LINK.

The dissenting Opinion by Judge Stabile may be reviewed at this LINK.

[Public retraction:  I take back my commentary from my recent Lackawanna County Bench Bar Conference CLE presentation during which I asserted that the Judges of Lackawanna County were wrong in following the minority rule and the Archibald v. Kemble case.  It turns out that the Lackawanna County Judges were right and I was wrong --  the Superior Court has ruled that it is permissible to assert recklessness in any negligence case whatsoever regardless of the facts presented. 

In such cases, defendants will have to attempt to secure a stipulation for the removal of the recklessness allegations once discovery has been completed.  If such a stipulation is not forthcoming, defendants will have to file a motion for summary judgment asserting that the plaintiff has not produced facts during discovery to support that type of claim.]

Judge Nealon of Lackawanna County Rejects Request to Have Settled Defendants on Verdict Slip

In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 7, 2022 Nealon, J.), the court addressed a motion by certain Defendants in a medical malpractice case for reconsideration of the court’s previous Order granting certain settling Defendants’ Motion for Discontinuance from the case by virtue of the settling Defendants’ Joint Tortfeasor Agreements.

One of the non-settling Defendants wished to keep the settling Defendants in the case for purposes of the trial.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas confirmed that, in Pennsylvania, there is no absolute right to have settling Co-Defendants placed on a verdict slip. Rather, under the applicable standard of review, the trial court is required to determine whether any evidence of a settling Co-Defendant’s liability exists before deciding whether to put that Co-Defendant on the verdict slip.

In terms of a medical malpractice action, Judge Nealon noted that expert testimony is required to establish the elements of a duty, breach, and causation and that, if expert testimony will not be presented at trial to establish a settling Defendant’s potential liability, then that settling Defendant should not be included on the verdict slip.

Judge Nealon noted that he had previously granted the voluntary Discontinuance of the settling Defendants in this matter in the absence of admissible expert testimony against those Defendants. The court also noted that any efforts by the Plaintiff to introduce expert testimony on the standard of care and causation would amount to hearsay in this case.

As such, the court found that it had previously properly granted the settling Defendants’ Motions for Discontinuance. The Motion for Reconsideration at issue here was, therefore, also denied.

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

Summary Judgment Issues Addressed in Pelvic Mesh Products Liability Case

In the case of Cohen v. Johnson & Johnson, No. 2:20-CV-00057(W.D. Pa. Pa. Oct. 5, 2022 Hornak, J.), the Western District federal court ruled that strict liability claims arising from an allegedly defective pelvic mesh could proceed where there was no evidence that the mesh was an unavoidably unsafe product or incapable of being made safe, which would preclude the imposition of strict liability.

The court denied in part and granted in part, the Defendants’ Motion for Summary Judgment.

Anyone wishing to review this decision may click this LINK.