Wednesday, November 26, 2014


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Thanks very much.

Tuesday, November 25, 2014

Interesting Legal Intelligencer Article on the Future of Products Liability in PA in Light of Tincher

Here is a LINK  to a November 25, 2014 article by Max Mitchell of The Legal Intelligencer entitled "Products Liability Cases in Pa. Face an Uncertain Road."

The article outlines the grey areas in the future of Pennsylvania products liability law in light of the Pennsylvania Supreme Court's recent decision in Tincher.  Interestingly, both the plaintiff's bar and the defense bar are claiming victories with the decision.

In any event, the article makes for an interesting read and may be a good article to have on hand when issues arise for you for the first time.

If you are unable to open the Link please email me and I will send you a copy of the article.

Monday, November 24, 2014

Intermediate Form of Indemnity Agreement in Contractor-Subcontractor Construction Agreement Found

In its recent unpublished "non-precedential" decision in the construction accident case of Bracken v. Burchick Construction, 1432 WDA 2012 (Pa. Super. Oct. 10, 2014 Panella, J.), the Pennsylvania Superior Court found that language used in the parties’ Subcontractor Agreement was sufficient to establish an intent to enter into an intermediate form of an indemnity agreement such that, after waiving its immunity under the Workers’ Compensation Act, a subcontractor may be deemed to possibly be required to reimburse the general contractor for a $3.1 million dollar settlement owed after the death of the subcontractor’s own employee as a result of a work place accident.  

According to the Opinion, the decedent Plaintiff’s representative filed a lawsuit against the general contractor for the construction project.  The general contractor then filed a Complaint to join the Plaintiff’s decedent’s employer, who was a subcontractor on the same work site.  

The court found that under language contained in the Subcontractor Agreement, the subcontractor agreed to assume the entire liability for any injury or death suffered by its employees as a result of the subcontractor’s negligence.   The court viewed the language of the subcontract to be considered an intermediate form of an indemnity agreement.   Accordingly, the subcontractor was found to have agreed to indemnify the general contractor for the entire liability if the liability stems from the subcontractor’s partial or sole negligence.
Judge Panella's majority Opinion can be viewed HERE.
Judge Olsen's dissenting Opinion can be viewed HERE.

Wednesday, November 19, 2014

Pennsylvania Supreme Court Upholds Constitutionality of Statutory Caps in Context of Tort Claims Act

In another notable decision, this time in the case of Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014  ), the Pennsylvania Supreme Court upheld the constitutionality of the $500,000 statutory cap on tort claim recoveries against local governmental agencies under the Tort Claims Act, 42 Pa.C.S.A. Section 8501-8564.  The statutory cap which was upheld is found at Section 8553.

In the end, the molding of a jury verdict in favor of the Plaintiff in an amount of over $14 million dollars for personal injuries down to the $500,000 cap was upheld over the Plaintiff's constitutional challenges.

The Supreme Court noted that any changes in the law in this regard should originate from the General Assembly as opposed to the court system.

The Court's Opinion in Zauflik can be viewed HERE. 

Justice Baer's Concurring Opinion can be viewed HERE.

I say thanks to Attorney Matt Keris, the current President of the Pennsylvania Defense Institute and a shareholder in the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this notable decision to my attention.

Pennsylvania Supreme Court Issues Tincher Decision: Declines to Adopt Restatement Third for Products Cases

The Pennsylvania Supreme Court has released its much anticipated products liability decision in Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.)

When the Court accepted the appeal in Tincher it defined the issue presented as "Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement."

 In the Tincher 128 page majority Opinion, the Court overruled the Azzarrello  v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978) decision and its negligence/strict liability analysis.

While the Tincher court declined to adopt the Restatement Third for products cases, the Court did note that certain principles therein guided its framework for a proper analysis of such claims in the post-Azzarrello era.

The new strict products liability analysis adopted by the Supreme Court was enunciated, as follows:

"...we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a  preponderance of the evidence."

The Court went on to emphasize that the issue of whether or not a product is in a defective condition was a question of fact to be considered by a jury and could only be decided by a court on a motion for summary judgment if the court found that no reasonable minds on a jury could differ on a conclusion that a product was not defective.

To review a copy of the Pennsylvania Supreme Court's lengthy decision in Tincher v. Omega Flex, click HERE.

In his Dissenting and Concurring Opinion, which can be viewed HERE, Justice Saylor noted, in part, that he favored the adoption of the Restatement Third for products cases.

I send thanks to Attorney Ken Newman of the law firm of Thomas, Thomas & Hafer for bringing this case to my attention.  I also thank the excellent Drug and Device Law Blog in the same regard.


Prior Worker's Comp Award Collaterally Estops Plaintiff From Expanding Claims of Injuries in Companion Civil Lawsuit

Only one bite at the apple.

In his recent decision in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit.  

In this matter, the Plaintiff was a tow truck driver who was injured on a roadway while assisting a stranded motorist.   The accident occurred while the injured party was acting in the course and scope of his employment.  

The Plaintiff’s claim that the Plaintiff sustained cervical spine injuries including herniated disc, headaches, cervical sprain and strain, and numbness and tingling in his upper extremities along with a thoracic strain/sprain, and a lumbar sprain/strain.  

The Plaintiff filed both a workers’ compensation claim as well as a personal injury claim.  

At the workers’ compensation hearing, the Plaintiff presented a testimony of his treating doctor who opined that the Plaintiff sustained a cervical strain/sprain as well an aggravation of his underlying degenerative disc disease in his neck.   The treating physician opined that the Plaintiff could continue to work as he had recovered from his cervical injury. 

At the workers’ compensation hearing, the employer presented a testimony of a medical expert who had reviewed the records and completed an examination of the Plaintiff.   The defense medical expert opined that the MRI studies showed age-appropriate degenerative changes that were not aggravated by the subject accident.   The defense expert agreed with the Plaintiff’s medical expert that the Plaintiff had sustained a cervical spine sprain/strain.  

The workers’ compensation judge concluded that the Plaintiff did indeed sustain a neck injury as a result of the accident, but did not suffer an aggravation of this pre-existing degenerative disc disease.   The workers’ compensation judge had also concluded that the Plaintiff had fully recovered from his work-related injury and was not disabled.  

The workers’ compensation decision was not appealed by the Plaintiff.  

In the separate civil litigation lawsuit, the Plaintiff sought to recover for damages beyond the cervical spine/strain injury.  

The trial court judge rejected this effort by the Plaintiff finding that all of the elements for the collateral estoppel test had been met.  First, the issue decided at the workers’ compensation hearing was identical to the issue raised in the personal injury lawsuit.   The trial court also confirmed that the Plaintiff presented evidence at the workers’ compensation hearing in an effort to prove that he sustained an aggravation of his degenerative disc disease in addition to the sprain/strain injury.   The trial court in the personal injury case indicated that the Plaintiff had a full and fair opportunity to litigate that issue and that the workers’ compensation judge had rendered a final judgment on the merits of that issue which was not appealed.  

Accordingly, Judge Cox held that the findings in the workers’ compensation case precluded the re-litigation of the identical issues in the companion personal injury lawsuit.   As such, the trial court ruled that the findings of the workers’ compensation judge precluded the Plaintiff from seeking damages beyond a cervical sprain/strain injury.  

As such, the Defendant’s Motion for Partial Summary Judgment arguing that the Plaintiff were collaterally estopped from asserting injuries beyond that which had been determined in the previous workers’ compensation matter was granted.  

I do not have a copy of this decision.  Anyone wishing to secure a copy of this decision in the case of McConnell v. Delprincipe may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and paying a small fee.  

Source of image: and Disney.

Monday, November 17, 2014

Monumental Opinion on Post-Koken Trial Jury Instructions From Judge Terrence R. Nealon of Lackawanna County

In his recent decision in the case of Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.), Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial.  

In what appears to be the first reported decision on the issue, Judge Nealon set forth the instructions that he would provide to the jury in a UIM jury trial.  

According to the Opinion, the defense wanted minimalist instructions to the jury that this matter involved an admitted liability accident for which the jurors were to decide the amount of damages recoverable.   In contrast, the Plaintiff was requesting some explanation of the UIM coverage and claims presented.  

Judge Nealon noted that there are no standard jury instructions for UIM trials that have been promulgated to date.  Accordingly, he reviewed jury instructions from other states and then formulated his own instructions.  

Judge Terrence R. Nealon
Lackawanna County
In so ruling, Judge Nealon referred to his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17, 44 (C.P. Lacka. Co. 2011, Nealon, J.) for the proposition that not only made Pennsylvania trial courts join and try tort UIM claims in a single action without running afoul of Pa. R.E. 411, pertaining to “Liability Insurance,” and that a trial court may consider evidence of insurance as being offered for another purpose under Rule 411 such that a UIM carrier was allowed to be identified to the jury and the tort and UIM issues could be tried jointly as guided by “carefully crafted instructions to the jury.”  

Judge Nealon noted that the Pennsylvania Superior Court more recently addressed the application of Pa. R.E. 411 in a jury trial where a liability and UIM claim are joined for a single trial and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of…. Rule 411” in such a trial.  Moritz, citing  Stepanovich v. McGraw, 78 A.3d 1147, 1150 (Pa. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).  

In Moritz, Judge Nealon stated that he would instruct the jury, as follows:

(1)  Plaintiffs have brought this action against their own insurance company under coverage known as underinsured motorist coverage, which served to provide compensation to a Plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the Plaintiff’s damages from an accident;

(2) To recover against the Defendant, the Plaintiff must prove that the other driver was negligent, that the negligence caused harm to the Plaintiff, and that the other driver did not have adequate liability insurance;

(3) The Defendant had stipulated that the Plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy;

(4) The Defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the Plaintiff suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the Plaintiff;

(5)  The fact that the Plaintiffs are suing the Defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the Plaintiff;

(6) The Plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the Plaintiffs have already received from the other driver and her insurer;  and,

(7)  The jury should determine an amount of money damages that will fairly and adequately compensate the Plaintiff for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the Plaintiff may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award.  

In his Opinion, Judge Nealon went on to more specifically apply the above to the facts of the case presented in terms of the jury instructions to be provided.  


The Moritz decision by Judge Nealon is also notable with respect to a Motion In Limine filed by the Plaintiff seeking to introduce evidence that the same insurance company paid for the  Plaintiff’s total treatment and surgery under the first party medical benefits coverage as a means of rebutting the carrier’s argument, as a UIM Defendant, that the Plaintiff’s shoulder injury and surgery were not accident related.

The court sustained the UIM carrier’s objections to that evidence and ruled it inadmissible.   In support of this ruling, Judge Nealon relied upon the case of Pantelis v. Erie Insurance Exchange, 890 A.2d 1063 (Pa. Super. 2006).  

In Pantelis, the same argument was raised by the Plaintiff.  However, the Superior Court noted that “[t]he statutory framework and applicable case law establishes that payment of UM/UIM claims is subject to a different analysis then payment of first party benefits.”  Pantelis, 890 A.2d at 1068.  

Accordingly, the Pantelis court ruled that “the trial court directly determined that  payment of first party benefits does not preclude an insurer and later denying third party UM/UIM benefits” since “an insurer’s payment of first party benefits does not, without more, constitute a binding admission of causation under either the statute or case law.”  Id. at 1067-68.   Judge Nealon cited a number of other federal courts reaching the same conclusion.  

Judge Nealon also ruled that, even if this evidence is found to arguably be relevant, its probative value was outweighed by the danger of unfair prejudice since the admission of that evidence could sway the jury to render a verdict on an improper basis.   The court noted that the admission of the fact that the insurance company had paid medical expense benefits could be equally prejudicial to both the injured party Plaintiff and the insurance company Defendant.  For example, the jury could conclude that those medical expense payments, like the payment that the Plaintiff already received from the liability carrier, should likewise be deducted from its award of damages and thereby reduce its verdict without prompting or suggesting by the court.  

As such, Judge Nealon denied the Plaintiff’s request to utilize the evidence at issue. 

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may utilize the above Westlaw citation or click this LINK.

It is noted that the prevailing Plaintiff's attorney in this Moritz case is Attorney John Mulcahey of the Scranton office of the Munley Law Firm.