HAPPY THANKSGIVING TO YOU

Pausing from posting on cases to wish you a Happy Thanksgiving and to say "Thank You Very Much" for reading Tort Talk and for supporting Tort Talk by sending in your tips on court decisions you have secured.

Much appreciated,

Dan Cummins

Court Reviews Test for Competency of a Child to Testify

Sometimes a decision in another area of the law can prove useful in civil litigation matters.

In the case of MA v. JH, No. FC-20-20486 (C.P. Lyc. Co. Sept. 9, 2020 Tira, J.), the court addressed the competency of a child to testify in a hearing pertaining to a Protection from Abuse proceeding. 

In the end, the court found that the child was incompetent to testify due to a lack of maturity. As such, the child’s hearsay statements were also found to be inadmissible at the proceeding. 

According to the Opinion, the child was 4 ½ years of age. 

In this matter, the mother filed a Petition for Protection from Abuse. Prior to the scheduled hearing, the mother requested a tender years hearing pursuant to 42 Pa. C.S.A. §5985.1. 

This decision is notable for its reference to the test to determine the competency of a child under 14 years of age to testify. The court noted that this test was set forth in the case of Roche v. McCoy, 156 A.2d 307 (Pa. 1959). 

Under the Roche decision, it was noted that competency was the rule and incompetency was considered to be the exception. That court also ruled that, when the child is under the age of 14, a judicial inquiry into the child’s mental capacity was mandatory. The factors for the court to consider with respect to the child under the age of 14 included the child’s mental capacity, ability to communicate, and consciousness of the duty to speak the truth. 

After interviewing the child in this case, the court found that the child was not mature enough to testify. The court also ruled that the hearsay statements of the child could not come into evidence as well. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 27, 2020).

ENCORE PRESENTATION: MEDIATION/ARBITRATION TIPS CLE SET FOR DECEMBER 15th

 

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Tuesday, December 15, 2020 -  12:30 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.)

The cost to attend the program is free for PADC members and $45 for non-members.

To register for this program contact the PADC Executive Director David Cole at dcole@philadefense.org.

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Link to Erie Insurance v. Petrie Decision

Stacking Cars and Bikes

Yesterday I wrote on the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), in which the Pennsylvania Superior Court held that the carrier improperly denied a UIM claim of an insured who had rejected stacking on two separate policies with two different companies and, in so ruling, credited Gallagher v. GEICO with widespread effect.

I forgot to include the Link to the decision -- sorry about that!

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

Panel of Pennsylvania Superior Court Judges Gives Gallagher v. GEICO Wide Effect

Stacking Cars and Bikes

The debate on the effect of the Pennsylvania Supreme Court's decision in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), continues on.

This question was most recently addressed by a panel of Pennsylvania Superior Court Judges in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.).

In Petrie, the Pennsylvania Superior Court held that the carrier improperly denied a UIM claim of an insured who had rejected stacking on two separate policies with two different companies and, in so ruling, credited Gallagher v. GEICO with widespread effect.

According to the Opinion, the Plaintiff was fatally injured in an accident while he was riding a motorcycle.

Relative to the UIM claims, the Plaintiff had recovered UIM benefits under a policy issued to him by Foremost Insurance for the motorcycle. At the time the Plaintiff also had another policy in the household with Erie Insurance that covered four other vehicles in the household, unstacked.

In addition to Erie having secured a rejection of stacking from the insured, the Erie policy also contained a Household Exclusion. The Household Exclusion relieved Erie of having to provide UIM benefits relative to any accident was insured in while in another vehicle of the household that was not insured by Erie Insurance.

Erie asserted that the executed rejection of stacking precluded the Plaintiff’s efforts at inter-policy stacking between the Erie policies and the Foremost policy that covered the motorcycle.

Erie filed this Declaratory Judgment action and filed a motion for judgment on the pleadings. The trial court granted the motion and the Plaintiff appealed. As noted, with its decision the Superior Court reversed and remanded the case for further proceedings. 

The Pennsylvania Superior Court found that the waiver of inter-policy stacking was ineffective under Craley v. State Farm Fire & Cas. Co., 895 A.2d 530 (Pa. 2006). More specifically, the Superior Court, relying upon a footnote in Craley which the carrier in this matter asserted was dicta, agreed with the Plaintiff that the waiver form did not clearly put the insured on notice that he was waiving inter-policy stacking at the time he purchased insurance. The Plaintiff had argued in this matter that the waiver form only referenced a “policy” and not “policies” and that the Plaintiff was, therefore, not put on clear notice that the waiver of stacking would also apply to policies issued by other companies. 

The Superior Court also ruled that the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO which invalidated the household exclusion is not limited to its facts. The Superior Court in this Petrie case also held that the Household Exclusion was invalid as a de facto waiver of stacked coverage when Pennsylvania law required that carriers secure written waivers or rejections of stacked coverage from its insureds. As such, the Superior Court judges weighing in on this case took the view that Gallagher v. GEICO was not limited to its facts which involved the same carrier issuing both policies at issue in that case.

In footnote 7 in this Petrie decision, the Pennsylvania Superior Court noted that the Pennsylvania Supreme Court is addressing the Craley issue in the case of Donovan v. State Farm but that the Superior Court was required to decide this Petrie case based upon the law at present. 

In the end, the Superior Court reversed the trial court’s granting of a motion for judgment on the pleadings in favor of the carrier and remanded the case for further proceedings.

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

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Interesting Issues in Postal Truck Accident Case

In the case of Diawara v. United States, No. 18-3520 (E.D. Pa. Oct. 22, 2020 Pratter, J.), the court addressed various notable issues in a motor vehicle accident case involving a postal truck and the application of the Federal Tort Claims Act. In this decision, the court was addressing several pre-trial Motions In Limine. 

Of note, the court ruled that a prior Social Security Administration determination of the Plaintiff’s total disability did not serve to collaterally estop the government Defendant from arguing against the Plaintiff’s allegations of total disability. 

The court also noted that the determination by the Social Security Administration on the Plaintiff’s total disability could not be admitted into evidence by the Plaintiff as the Social Security Administration had utilized different standards and did not involve any adversarial proceedings. More specifically, the court rejected the Plaintiff’s Motion to Preclude the government from arguing that the Plaintiff was not disabled. The Plaintiff presented this motion in light of the fact that there was a Social Security Administration determination of full disability. The court found that the principles of collateral estoppel did not preclude the government from making an argument at this trial contrary to the determination by the Social Security Administration. 

The court additionally granted the Motion to Preclude the Social Security Administration Disability determination from coming into evidence after finding that the Social Security Administration had utilized different standards to reach that determination. The court also found that admitting that determination into evidence could cause confusion and possibly delay the trial.

It was held that the Plaintiff could still seek to admit the underlying evidence that was submitted to the Social Security Administration in support of an argument of a total disability as a result of the accident. 

The court additionally noted that the government Defendant could use the Social Security Administration determination to later offset any lost wages awarded in this matter. 

In another notable decision in this case, the court denied the Plaintiff’s motion to exclude one of the government Defendant’s medical expert’s testimony as being contradictory and cumulative of another government medical expert’s testimony. The court found that there was no error in the government’s decision to have an orthopedic surgeon opine as to the Plaintiff’s shoulder injuries and to have a neurologist, whose testimony of the Plaintiff sought to exclude, offer opinions on the Plaintiff’s alleged neurological injuries even though an orthopedic surgeon could be qualified to make neurological assessments as well. 

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 10, 2020).