Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.



Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.


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Are Early Post-Accident Investigation Materials Gathered by Trucking Companies Prior to Litigation Protected by Work Product Privilege?

It is well known that trucking companies often act quickly to investigate accidents involving their vehicles to preserve evidence in the event litigation arises in the future.  Questions arise as to whether the information gathered in such early investigations is protected from discovery by the attorney work product privilege in later lawsuits.

Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).

The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed.  In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.

In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.

In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."

Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.

In  applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.

The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable.   The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.

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

Source:  Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).

Limited Tort Summary Judgment Motion Denied in Monroe County

Judge David J. Williamson of the Monroe County Court of Common Pleas recently denied a limited tort motion for summary judgment in the case of Haubrich v. Staniszewski, PICS Case No. 14-0160 (C.P. Monroe Jan. 9, 2014 Williamson, J.).

According to the Pennsylvania Law Weekly case digest of this opinion, the plaintiff was 37 weeks pregnant at the time of the subject motor vehicle accident.  The plaintiff alleged that, as a result of the accident, she was required to undergo an emergency C-section 12 days prior to her scheduled C-section surgery date.  The plaintiff also alleged neck and back injuries.

In addition to arguing that genuine issues of material fact existed as to whether or not she had sustained a "serious injury" as a result of the accident, the plaintiff asserted that the emergency C-section met the test in that it impaired her ability to carry her unborn child to the scheduled delivery date.

Judge Williamson agreed that the case should be allowed to proceed to a jury determination on the limited tort issues presented and, as such, denied the defendant's motion for summary judgment.

Anyone wishing to review this case may click this LINK.

  

Source:  “Digest of Recent Opinions," Pennsylvania Law Weekly (Feb. 11, 2014).   

Pennsylvania Supreme Court Declines Opportunity to Address Household Exclusion Case

By Order only, the Pennsylvania Supreme Court has denied a Petition for Allowance of Appeal in the case of Swarner v. Mutual Benefit Group, No. 793 MAL 2013 (Pa. Feb. 19, 2014).

Tort Talkers may recall that, at the Superior Court level, the court in Swarner  reviewed the Household Exclusion in an automobile insurance policy in the context of an application of the Utica Mutual factors as to whether or not an injured party was “occupying” a vehicle at the time of the accident.
For more details, here's the LINK the Tort Talk blog post on the Superior Court's decision in Swarner.  The blog post contains a link to that Opinion.

I send thanks to Steve Mahan, Esq., Law Clerk at Handler, Henning & Rosenberg, LLP for bringing this case to my attention.  Attorney Matthew S. Crosby of that office handled the Swarner case.

Plaintiff's Motion to Remand Auto Law Bad Faith Claim Back to State Court Granted in Western District of PA

In the Federal Western District of Pennsylvania Court case of Brewer v. GEICO, No. 13-1809 (W.D. Pa. Jan. 22, 2014 Fischer, J.) (mem.), Judge Nora Barry Fischer addressed a plaintiff's Motion to Remand and ruled that an uninsured motorists carrier's removal of the state court filed matter to Federal Court had not met the requirements to support such a maneuver and the case was therefore sent back to state court.

In Brewer, the plaintiff filed breach of contract and bad faith claims along with a request for punitives and attorney's fees against his own uninsured motorist insurer in state court.

The carrier removed case on basis that recovery under the bad faith claim may exceed $75,000.

In this matter, although plaintiff agreed to stipulate that all claims combined would not exceed $75,000, defendant refused to accept the proposed stipulation, noting that a jury would be available in federal court on the bad faith claims presented.

The court noted that, under 28 USC § 1446(c) and the prevailing case law, the first question to be analyzed was whether the defendant carrier met its burden of showing by a preponderance of evidence that the amount in controversy exceeded $75,000 on the date the case was removed.

The court found that the defendant carrier's good faith averment in its Notice of Removal that the amount in controversy exceeds $75,000 was insufficient.

According to the record before the court, the plaintiff had demanded only policy limits in the breach of contract claim which was $15,000.  Moreover, the plaintiff only alleged in the Complaint that the bad faith claim exceeded $30,000 which was the county court's arbitration limit.

Judge Fischer found that the defendant carrier had failed to establish that the bad faith claim even approached $60,000, let alone exceeded it.  Consequently, since the case presented was not found to meet the $75,000 federal jurisdictional threshold, removal was ruled improper, and the plaintiff's Motion for Remand was granted.

Anyone wishing to review the Opinion issued in the Brewer case may click this LINK.

Source of image:  www.strasburger.com

Judge Mannion Follows Federal Middle District Rule in Favor of Consolidation of Post-Koken UIM/Bad Faith Claims

In his February 21, 2014 Memorandum and Order issued in the Post-Koken case of Griffiths v. Allstate Ins. Co., No. 3:13 - CV - 02674  (M.D. Pa. Feb. 21, 2014 Mannion, J.), Middle District of Pennsylvania Federal Court Judge Malachy E. Mannion issued a detailed Opinion outlining his rationale for following the majority rule in the Middle District in favor of denying Motions to Sever bad faith claims from the breach of contract claim for UIM benefits. 

Judge Mannion reviewed the issue under the bifurcation rules and factors set forth in Fed.R.C.P. 42(b) to find that it would be more efficient to keep the claims consolidated.  The court also noted that precautions could be implemented by the court in discovery and at trial to address any issues that may arise by virtue of the litigation of such claims in conjunction with one another.

Anyone wishing to review Judge Mannion's Memorandum and Order in the Griffiths case may click this LINK.

The Post-Koken Scorecard on the Tort Talk blog (go to www.TortTalk.com and scroll down the right side for the link to the Scorecard) has been updated with this synopsis.

Source of image:  www.pamd.uscourts.gov

Split of Authority on Allowing Deposition of Claims Representatives in Post-Koken Cases Continues

In a February 20, 2014 Order (with explanatory rationale in a footnote) in the case of Wagner v. State Farm Mut. Automobile Ins. Co., No. 5:13 - CV - 06645 (E.D. Pa. Feb. 20, 2014 Sitarski, M.J.),  Magistrate Judge Lynne A. Sitarski of the Eastern District Federal Court of Pennsylvania denied the Plaintiff's Motion to Compel and granted State Farm's Motion for a Protective Order to prevent the deposition of a State Farm claims representative and claims manager as requested by the Plaintiff in this Post-Koken UIM case.

According to the explanatory details provided by the court, the Plaintiff contended that the depositions of the claims professionals was necessary to enable the Plaintiff to meet his burden of proof at trial. 

The Defendant carrier countered with a primary argument that information about the process of claims handling was not relevant in the Plaintiff's breach of contract claim particularly where no bad faith was being asserted.  The defense additionally asserted that it would be unreasonable, inconvenient, and expensive to require the claims professionals to attend a deposition where the redacted claims file had already been produced by the carrier.

The Court found that that the Defendant carrier had demonstrated good cause for the issuance of a protective Order to preclude the requested depositions.  As such, the carrier's Motion for a Protective Order was granted and the Plaintiff's Motion to Compel was denied.

Anyone wishing to review this Order containing the Court's rationale may click this LINK.


Commentary:

There remains a split of authority, and currently no appellate guidance, on this Post-Koken issue of whether or not the depositions of the claims professionals handling the UM/UIM claim can be secured in a Post-Koken breach of contract action against the UM/UIM carrier. 

To review at least some of the decisions on this issue, go to the Tort Talk Post-Koken Scorecard by going to www.TortTalk.com and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on that title and/or the date noted below it.

Once you get to the Tort Talk Post-Koken Scorecard, scroll down the Scorecard until you get to this particular topic. 

Please feel free to email me for a copy of any cases you see that you may need.  If I have a copy--and I do have a copy of most of the cases listed--I will send it to you.


Source of image: www.huseby.com