Tuesday, June 28, 2016

Pennsylvania Superior Court Reviews Liability of Landlord-Out-of-Possession in Slip and Fall Case (Non-precedential)

In recent non-precedential opinion in the case of Mills v. Gubbio’s, LLC 1907 MDA 2015 (Pa.Super. June 28, 2016 Stabile, Platt, Strassburger, J.J.)(Op. by Strassburger, J.), the Pennsylvania Superior Court affirmed Lackawanna County Court of Common Pleas Judge Terrence R. Nealon's decision to enter summary judgment in favor of the defense in a slip and fall matter.

In affirming the trial court decision below, the Superior Court reviewed the current status of the law of liability of a landlord-out-of-possession, including the reserved control exception and the public use exception to those rules of liability.

Also of note is the fact that the Superior Court reaffirmed that the Nanty-Glo Rule does not prevent the party moving for summary judgment from relying upon the testimony of an adverse party, or that adverse party's witnesses, in support of the motion as such admissions by an adverse party or its witnesses is considered to be an "unconditional surrender" by that party or witness on the facts admitted.

While a Plaintiff and a Defendant are obviously adverse parties, this decision affirms Judge Nealon's finding that Co-Defendants, and their witnesses, may also be considered to be adverse parties to one another in this context.

Anyone wishing to review this non-precedential decision may click this LINK.

Copy of George v. Hower Limited Tort Decision Secured

In a recent Tort Talk post on the limited tort case of George v. Hower, 59 Northampton 211 (C.P. North. Co. March 9, 2016), in which the court denied a defense motion for summary judgment, I noted that I did not have a copy of the case.

Since then several Tort Talkers have sent me a copy of the case for which I am grateful.  Anyone desiring a copy of this case may contact me at dancummins@comcast.net.

Monday, June 27, 2016

Pennsylvania Superior Court Affirms Trial Court's Molding of Post-Koken Verdict (Non-Precedential)

In the non-precedential decision in the case of Pusey v. Allstate Insurance Company, No. 888 EDA 2015 (Pa. Super. May 20, 2016 Ford Elliot, P.J.E. Stabile, and Strassburger, JJ.) (Mem. Op. by Stabile, J.), the Pennsylvania Superior Court affirmed a trial court’s handling of the molding of a verdict after an underinsured motorist trial.  

In this case, the trial court addressed the proper procedure for applying credits and comparative negligence in an underinsured motorist benefits trial.  

This matter arose out an incident during which a minor Plaintiff was struck by a vehicle while the minor was riding a bicycle. 

Prior to trial, the tortfeasor’s carrier tendered its $25,000.00 policy limits to the Plaintiff.   The Plaintiff then brought suit against the UIM carrier for underinsured motorist coverage.  

At trial, the jury awarded the Plaintiff $58.600.00.   However, the jury also attributed 41% of the negligence to the minor Plaintiff.  

When a post-trial dispute arose on how to apply the credit for the tortfeasor’s limits as well as the comparative negligent percentage, the trial court ruled that the comparative negligence percentage should be applied first, followed by the application of the credit owed from the tortfeasor’s liability limits.  

In its non-precedential Opinion, the Superior Court affirmed and found no abuse of discretion by the trial court in its decision.   In so ruling, the Superior Court rejected the Plaintiff’s argument that the Allstate policy language pertaining to the phrase “legally entitled to recover” was ambiguous as to how the net verdict was to be determined.  

The court stated that, “[t]o the contrary, it is clear that the amount [the Plaintiff] is “legally entitled to recover” is only reasonably interpreted as the amount she is entitled to collect according to the jury’s verdict.”  See Op. p. 6.  

As noted, the Superior Court affirmed the trial court’s application of the comparative negligence percentage of the Plaintiff first followed by the application of the credit owed from the tortfeasor’s liability limits.   Accordingly, the judgement entered by the trial court below was affirmed.  

Anyone wishing to review a copy of this non-precedential decision by the Pennsylvania Superior Court in the case of Pusey v. Allstate, may click this LINK.

Thursday, June 23, 2016

Limited Tort Motion for Summary Judgment Denied in Northampton County

In the recent Northampton County Court of Common Pleas decision of George v. Hower, 59 Northampton 211 (C.P. North. Co. March 9, 2016), the court denied a defense Motion for Summary Judgment on the limited tort issue after finding that the Plaintiff’s complaints that accident-related knee pain interfered with daily tasks for years after the accident created an issue on the serious injury question that should be left to be decided by the jury.  

If you wish to review a copy of this case, please contact me at dancummins@comcast.net.

Wednesday, June 22, 2016

Judge Brann of Federal Middle District Court Reviews Discoverability of Communications Between Third Party Administrator and Claims Representatives and Counsel

In  Heller’s Gas, Inc. v. Int’l Ins. Co. of Hannover Ltd., 4:15-CV-01350 (M.D. Pa. June 1, 2016 Brann, J.), Judge Matthew W. Brann of the Federal Middle District Court of Pennsylvania addressed the discoverability of communications between in-house counsel of a third party administrator and a claims representative of a carrier utilizing the services of the third party administrator.

In this breach of contract and bad faith case relative to a policy that provided commercial premises coverage, the Plaintiff insured claimed that documents withheld or redacted in discovery did not fall within the attorney-client privilege, the work product doctrine, and/or did not pertain to reserve information.

The Plaintiff insured asserted that all but one of the documents at issue was either sent to or from employees of the insurer’s third party administrator or its authorized claim representative, and as neither of these entities were subsidiaries of, or owned by, the insurer, the communications were not privileged.
In response, the carrier did not assert an agency relationship with either the third party administrator or the authorized claims representative.   Rather, the carrier, instead argued that the  communications between the third party administrator’s in-house counsel and/or the claim representative’s in-house counsel with the insurer all fell within the scope of attorney-client privilege.

Judge Matthew W. Brann
The court reviewed the unredacted documents during an in camera session. Thereafter the court, referring to F.R.C.P. 26, decided: “After thoroughly examining the documents, this Court finds that the information redacted appropriately falls within the attorney-client privilege and work product doctrine and is consequently information directly related to or referencing legal strategy regarding the instant litigation. The correspondence further supports [the insurer’s] latterly-advanced argument that [the third party administrator and authorized claims representative] are essentially agents of [the insurer].”

As such, the court found that the redactions were appropriate.
Anyone wishing to read this decision may click this LINK.

I send thanks to Attorney Lee Applebaum and the other writers of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog at Fineman, Krekstein & Harris for bringing this case to my attention.
Commentary:  Check out the Tort Talk blog post on the Pennsylvania Superior Court's recent ruling in a similar fashion on similar issues in the case of Brown v. Greyhound, Inc. HERE.  The Brown case can be viewed online HERE.

Monday, June 20, 2016

Correction of Case Name From Yesterday's Post

I spelled the name of the Plaintiff incorrectly in yesterday's post on the Eastern District Federal Court Bad Faith case of (correct spelling here) Canizares v. Hartford Insurance Company, No. 16-1465 (E.D. Pa. May 27, 2016 Pratter, J.).

Here is a LINK  to the case if you wish tor review the same.

I apologize for any confusion.

Bad Faith Claim Dismissed by Federal Court

In the case of Canizares v. Hartford Insurance Company, No. 16-1465 (E.D. Pa. May 27, 2016 Pratter, J.), the court dismissed a bad faith claim, without prejudice, after finding that the Plaintiff failed to meet the federal law standards of pleading a plausible claim by simply alleging legal conclusions. 

This matter arose out of damages caused to the Plaintiff’s home by a burst water pipe.   According to the Opinion, the insurance company paid for some of the damages to the premises as well as certain damages to personal property.   The Plaintiffs filed suit for the unpaid expenses associated with repairing damages to the premises along with a bad faith claim.  

The court reviewed the federal court threshold for pleadings under the Iqbal/Twombly standard which requires a Plaintiff to plead sufficient factual content to allow a court to draw a reasonable inference that the Defendant is allegedly liable for the misconduct pled.  

Here, the court found that the Plaintiff’s allegations primarily consisted of legal conclusions such that the federal court threshold for pleadings was not met.  However, the court dismissed the bad faith claim without prejudice in the event the Plaintiff later discovered information sufficient to factually plead such a claim.  

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris and his fellow writers of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog (www.pabadfaithlaw.com) for bringing this decision to my attention.