Wednesday, July 8, 2020

Have You Registered (Even if only to attend the CLE and Lunch)?

Please come out and support a good cause.  Even if you do not golf, you can support Lackawanna Pro Bono by coming out for the seminar set for 11 a.m. and enjoying the pre-golf lunch.

Tuesday, July 7, 2020

First Substantive Decision in the Nation (out of Michigan) on a Covid-19 Business Interruption Coverage Question Favors the Carrier (Donegal)

Here is a LINK to a blog post reporting on what is noted to be the first substantive decision across the nation on a Covid-19 Business Interruption Coverage question.

The decision was handed down by a Michigan state court on July 1, 2020 and favored the carrier, which was a division of Donegal Insurance, by dismissing the Complaint as a matter of law.

According to the blog post, the court in Michigan found that "direct physical loss of or damage to property" requires mor than mere loss of use or access; rather, some tangible alteration or damage that impacts the physical makeup of the premises is required in order to implicate the coverage.

According to other articles on the case, the matter arose out of Donegal's denial of $650,000 of business interruption claims by a restaurant.

Interestingly, the decision of the court was issued verbally.   A link to the Youtube post with the decision is included in the blog post that can be accessed at the above Link.

I send thanks to my contacts at Tuscarora-Wayne Insurance Company for bringing this decision to my attention.

CUMMINS LAW is an insurance defense firm that, in addition to defending all sorts of liability claims, also handles insurance coverage questions, including Covid-19 business interruption coverage questions.  Cummins Law can be contacted at 570-319-5899 or by emailing

Monday, July 6, 2020

Norhampton County Judge Finds Regular Use Exclusion Invalid

Road Splits Ahead

A split of authority is developing on the issue of whether the Regular Use Exclusion is a valid exclusion that comports with Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In the case of Rush v. Erie Insurance Exchange, No. C-48-CV--2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.), Judge Stephen G. Baratta of the Northampton County Court of Common Pleas granted partial summary judgment to the injured party Plaintiffs after finding that Erie's Regular Use Exclusion violated the MVFRL.

According to the Opinion, the Plaintiff was a police officer who was injured while driving a police vehicle that was regularly available for his use at work.  With regards to this matter, the Plaintiff was seeking UIM coverage under his personal automobile insurance policy.  The Plaintiff had not executed any UIM coverage or stacking waivers. The carrier that issued that policy denied coverage in reliance upon the Regular Use Exclusion contained in the personal policy.  A declaratory judgment action was filed and the parties eventually filed cross-motions for summary judgment.

The Court found that the Regular Use Exclusion at issue violated the MVFRL in two respects.  First, the court in Rush referred to the Pennsylvania Supreme Court's Household Exclusion decision in Gallagher v. Geico and found that the Regular Use Exclusion in this case was invalid as a "disguised waiver" of UIM coverage when the MVFRL requires the carrier to secure written waivers of such coverage from the insured during the application process or otherwise.

Secondly, under a rationale previously set forth in Slupski v. Nationwide Mut. Ins. Co.801 Fed. Appx. 850 (3d Cir. 2002), the court in Rush found that, because the Plaintiff was entitled to liability/medical coverage of $250,000 for his injuries from the accident, the Regular Use Exclusion was also found to violate 75 Pa.C.S.A. Section 1734, which mandated the carrier to provide UIM coverage equal to the bodily injury coverage available absent a written waiver secured from the insured.

Anyone wishing to review this decision may click this LINK.

With this decision, there is now arising a split of court decisions on the validity of the Regular Use Exclusion in the post-Gallagher v. Geico era.  To view other recent decisions on the validity of the Regular Use Exclusion you can always go to the Tort Talk Blog at, scroll down the right hand side to the "Labels" section and then scroll down alphabetically until you get to the Label of "Regular Use Exclusion" and click on that to see all of the Tort Talk posts on that topic.  Here is a quick LINK to that Label.

I thank Attorney Paul Oven of the Moosic, PA office of the Dougherty, Leventhal & Price law firm for bringing this case to my attention.  I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for providing a copy of the decision.

Still Time To Register For This Friday's CLE -- Mediation/Arbitration Tips

The Wilkes-Barre Law & Library Association is hosting 


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 Presented By

Free For W-BLLA Members

$35.00 For Non-Members


(The W-BLLA (#53) is now accredited as a Distance Learning Provider.)

This Program Provides 1 Hour of Substantive CLE Distance Learning Credit

Friday, July 10, 20201:00 p.m.

Created By:   Daniel E. Cummins, Esq. - Moderator and Presenter

Additional Presenters:

Judge Thomas M. Blewitt (ret.)

Richard G. Fine, Esq.

Thomas B. Helbig, Esq.

Lucille Marsh, Esq.

Judge Joseph Van Jura (ret.)

Judge Thomas I. Vanaskie (ret.)

Technology Assistance Provided by 

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Advance Registration is necessary prior to that day.

 Please go to this LINK to Register for this Event.

Your Atty. I.D.# - Your Name - Title and Date of the program - And, if You are Planning to Call on a Telephone, Your Telephone #.




Minimum requirement for access to this program is a computer, laptop, ipad, cell phone or telephone.   If you plan to use your cell phone or an ipad,

you will need to download the Zoom App.

       After you Register, you will be emailed the link for the program.

All payments must be received 48 hours in advance of the program. Pay by check: Please mail a check payable to the "Wilkes-Barre Law and Library Association" to the Law Library at W-BLLA, Room 23, 200 North River Street, Wilkes-Barre, PA 18711.

If you have any questions, please call Gail Kopiak at (570)822-6712.

Presenting Civil Litigation Update CLE At Annual Meeting of PDI Next Week




Daniel E. Cummins, Esq.

Cummins Law

Clarks Summit, PA

Annual Meeting of the Pennsylvania Defense Institute

July 15-17,2020

(Tort Talk Seminar is on July 16, 2020)

Bedford Springs Resort

Bedford Springs, PA

*   *   *

For the second year in a row, I have been requested to present a civil litigation update CLE presentation at the Annual Meeting of the Pennsylvania Defense Institute.  All of the most important cases and trends of the past year will be covered in a hopefully entertaining 90 minute presentation.

I will be assisted by Exhibit A ( in creating the powerpoint and with the playback.  Please consider retaining Exhibit A for all your Zoom needs, video depositions, and digital presentations for trials, arbitrations, or mediations.

For information on how to register to attend the Annual Meeting of the PDI, please contact the PDI's Executive Director, Charles Wasilefski, Esq. at

Thursday, July 2, 2020

Plaintiff Required to Prove Design Defect in Design Defect Case

In the case of Pennsylvania Nat’l Mut. Ins. Co. v. Sam’s East, Inc., PICS No. 20-0472 (C.P. Dauphin Co. April 13, 2020 Cherry, J.), the court granted a Defendant’s Motion for Summary Judgment in a products liability suit based upon an alleged design defect with a space heater.   

This matter arose out of a residential fire.   The insurance company Plaintiff filed a subrogation action against Sam’s East, Inc. and related parties based upon an allegation that the fire was allegedly caused by a space heater purchased at the Sam’s East, Inc. store.   

The court noted that, under Pennsylvania law, to recover in a design defect case, Plaintiff must prove that the product was defective, that the defect was the cause of the Plaintiff’s injuries, and that the defect existed at the time it left the manufacturer’s control.  

The court noted that, based upon burn patterns and physical evidence observed at the scene, it was the opinion of the Plaintiff's investigator that the fire was accidental in nature and that the fire originated within the electric space heater that was located in the basement.   

The court noted, however, that the investigator’s report did not identify any design defect, state how any alleged defect caused the heater to catch fire, or identify what type of safety design should have existed instead.   

As such matters were beyond ordinary knowledge of the average juror and, therefore, required expert opinion, the court found that the investigator’s simple conclusion that the “fire originated within the electric space heater” was insufficient to enable the Plaintiff to proceed to the jury.   The court noted that, to allow this case to proceed to the jury would have invited speculation on the part of the jury as to the cause of the fire and whether any defect was the source of the same.   

As such, the Defendant’s Motion for Summary Judgment was granted.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 9, 2020).