Monday, February 27, 2017

Judge Nealon of Lackawanna County Addresses Motion to Join Additional Defendant Beyond Time Allowed by Rules

In his recent decision in the case of Lemoncelli v. Newell Rubbermaid, Inc., No. 2011-CV-2565 (C.P. Lacka. Co. Jan. 24, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s  Motion to Join an Additional Defendant beyond the time allowed under the Rules of Civil Procedure.

This matter arose out of a products liability action in which one Defendant manufacturer sought to joint another manufacturer as an Additional Defendant.   The Defendant that was to be joined opposed its joinder on the grounds that the original Defendant did not demonstrate a reasonable excuse for the delay in filing its joinder request and also that the proposed joinder would prejudice the Defendant to be joined.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon ruled that, since the Plaintiffs did not oppose the original Defendant’s untimely joinder of the Additional Defendant, the existence of absence of some reasonable justification for the delay in presenting the joinder request is not a relevant consideration under Pa. R.C.P. 2253(b).  

The court also noted that the Defendant to be joined had not identified any prejudice that it would suffer as a result of being joined late.

Accordingly, the court granted the original Defendant’s Motion to Leave to Join the Additional Defendant.  

Anyone wishing to read this decision on Lemoncelli online, may click this LINK.

Judge Zulick of Monroe County Addresses Motion to Join Additional Defendant Beyond Time Allowed By Rules

In his recent decision in the case of Liu v. Pi Delta Psi Fraternity, No. 3028-CV-2015 (C.P. Monroe Co. Nov. 2, 2016 Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas allowed the late joinder of an Additional Defendant over the objection of the Plaintiff.  

Judge Arthur L. Zulick
Monroe County

The court allowed this joinder despite the passage of several months in this wrongful death and negligence case.   The court found the interest of judicial economy would be advanced by allowing the late joinder particularly where the case was still in discovery and a volume of information on the claims presented had been secured from the companion criminal cases.  

Accordingly, an original Defendant’s Motion to File a Joinder Complaint was granted.  

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


Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 31, 2017).  


Thursday, February 23, 2017

Pennsylvania Supreme Court Addresses Validity of Section 1731 UM/UIM Rejection Forms

In its recent decision in the case of Ford v. American States Ins. Co., No. 1800 WDA 2014 (Pa. Feb. 22, 2017)(Maj. Op. by Baer, J.), the Pennsylvania Supreme Court addressed the the validity of a Section 1731 uninsured and underinsured rejection form. 

Departing from prior decisions on the issue, the Ford Court held that a de minimis alteration to the form does not render the form void.   In other words, the Supreme Court ruled that the form does not have to be a verbatim recitation of the form contained in the statute. However, the Court further held that an alteration which can render the form ambiguous or confusing will serve to make the form void.

The Majority Opinion written by Justice Baer can be read at this LINK.

The Dissenting Opinion by Justice Donohue can be read HERE 

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Tuesday, February 21, 2017

Pennsylvania Superior Court Rules Jury Cannot Award Damages That Were Neither Sought or Proven

In the case of Stapas v. Giant Eagle, Inc., 2016 Pa. Super. 303 (Pa. Super. Dec. 23, 2016 Stabile, J. Bowes, J. Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed, in part, the trial court’s denial of post-trial motions in a personal injury matter arising out of a shooting incident. 

Of note was the fact that the court found that the amount of $1.3 million dollars awarded the Plaintiff for future income loss was not supported by the evidence and was not even sought by the Plaintiff.  As such, the court ruled, under the rationale that a verdict must bear a reasonable resemblance to the proven damages, that a jury cannot award damages that were neither sought nor proven.   In so ruling, the court also stated that, even though the jury was not required to itemize its award of damages, it chose to do so, and those findings revealed the unsupported award.   

This decision is also notable in the Superior Court’s decision that the brief mention of the Plaintiff’s lack of health insurance did not require a new trial.  The court noted that this testimony was immediately stricken by the trial court.   The Superior Court also reasoned that the prohibition against the mentioning of insurance in civil litigation matters under Pa. R.E. 411 generally applies to a Defendant’s possession of liability insurance.  

The Stapas court also addressed the assumption of risk defense raised in this matter and stated that getting into a fight should not be considered the assumption of the risk of being shot.   The court emphasized that, in the case before it, the Plaintiff did not know that his attacker was armed.  

 The court returned the case to the trial court for a new trial on damages only.  

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.    

Wednesday, February 15, 2017

Bad Faith Claim Based Upon Sackett Dispute Rejected

In a recent decision out of the Western District Federal Court of Pennsylvania in the case of Trustgard  Ins. Co. v. Campbell, No. 16-CV-1013 (W.D. Pa. Nov. 28, 2016 Schwab, J.), the court rejected a claim of bad faith in the case where the insureds had prevailed upon  previous legal argument as to whether they were entitled to stacking under the policy.  

The insureds were asserting that the court should find that the carrier acted in bad faith on the basis of the insureds’ prevailing on their legal argument with respect to coverage.  

The court found that the bad faith claim failed because the carrier’s position, while unsuccessful on the coverage issue, was reasonable under the circumstances presented.

The court noted that “[t]he crux of the Parties’ disagreement - - whether the [vehicle] was added to the [insureds’] policy by endorsement or by the “newly acquired vehicle” clause of the policy - - was resolved in the [insureds’] favor by this Court, but the authority for both Parties’ positions was reasonably supported by the cases they respectively cited.”  

Accordingly, the court granted summary judgment to the carrier on the bad faith claim presented by the Plaintiff.  

To view this case online, please click this LINK.
I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention through his excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog.  

Judge Munley of Federal Middle District Grants Summary Judgment in Bad Faith Claim

In his recent decision in the case of Yatsonsky v. State Farm Fire & Cas. Ins. Co., 3:15-CV-1777 (M.D. Pa. Dec. 5, 2016 Munley, J.), Judge James M. Munley granted a carrier’s Motion for Summary Judgment in a bad faith claim.

In this matter, the Plaintiff claimed that the carrier acted in bad faith by assigning an inordinate number of representatives to handle her claim.  The insured additionally asserted that the carrier refused to timely pay the full value of the Plaintiff’s loss and instead only provided a number of estimates of payments over a seven (7) month period.  

Judge Munley indicated that “it is not bad faith to conduct a thorough investigation into a questionable claim.”  The court found that the Plaintiff in this matter failed to present any evidence that the management of the claim was anything other than attempt to further investigate the water damages allegedly sustained at the Plaintiff’s home in order to determine the value of the claim.  It was additionally indicated that no expert testimony was offered by the Plaintiff pertaining to the insurer’s investigation.  

The court also rejected the Plaintiff’s argument that multiple estimates issued in the claim demonstrated bad faith on the part of the carrier.   In so ruling, the court referenced appellate law for the proposition that “subsequent estimates assign(ing) at a higher value of the claim is not ‘clear and convincing’ evidence that the insurer acted in bad faith in arriving at its initial estimate."

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

I send thanks to Attorney Lee Applebaum, writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog and member of the Philadelphia law firm of Fineman Krekstein & Harris, for bringing this case to my attention. 

Monday, February 13, 2017

Pennsylvania Superior Court Affirms Finding of No Duty Owed in Data Breach Case

In its recent decision in the case of Dittman v. UPNC d/b/a The University of Pittsburgh Medical Center, No. 971 WDA 2015 (Pa. Super. Jan. 12, 2017 Olson, J., Stabile, J., and Musammno, J.) (Op. by Olson, J.), the Pennsylvania Superior Court addressed the general question of whether a duty of care exists under the test set forth in the Pennsylvania Supreme Court’s decision in the case of Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000).  The Dittman case involves an action for negligence and breach of contract against a medical center after an alleged data breach with regards to the medical center’s computer systems.  

The Pennsylvania Superior Court found that the trial court did not err in finding that the medical center owed no duty to the Plaintiff under Pennsylvania law.   

The court also found that the trial court did not err in dismissing the Plaintiff’s breach of contract claims in the absence of any allegations that the medical center intended to enter into any contract to protect the Plaintiff’s personal information allegedly exposed during the data breach.  

In its Opinion, the Pennsylvania Superior Court stated that, under the Althaus test, whether a duty exists is a question for the court to decide and, in so deciding, the following factors are to be considered:

1.         The relationship between the parties;

2.         The social utility of the actor’s conduct;

3.         The nature of the risk imposed and foreseeability of the harm incurred;

4.         The consequences of imposing a duty upon the actor; and,

5.         The overall public interest in the proposed solution.

As stated, the court found that no duty existed under the circumstances presented in this matter.  

In its Opinion, the court also addressed the economic loss doctrine, which provides that no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.  The court upheld the trial court’s decision that the Plaintiff was barred from recovering economic losses as the Plaintiff could not show that the Defendant breached any duty imposed by law.  

Anyone wishing to review the Opinion of Judge Olson issued in this matter may click this LINK. 

Judge Stabile’s Concurring Statement, in which Judge Olson joined, can be viewed at this LINK.  

Judge Musmanno’s dissenting statement can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.