Wednesday, April 26, 2017

CORRECTED LINK For Post-Tincher Case Summarized in Yesterday's Post

Here's a LINK back to yesterday's Tort Talk Blog Post on the Pennsylvania Superior Court's recent non-precedential decision in the Post-Tincher case of Martinez v. American Honda Motor--I understand that the Link to the actual decision may not have been working and I have corrected it.

I apologize for any inconvenience.

Tuesday, April 25, 2017

Superior Court Addresses Post-Tincher Products Liability Issues (Non-Precedential)

In its recent decision in the case of Martinez v. American Honda Motor, No. 445 EDA 2015 (Pa. Super. April 19, 2017 Bender, P.J.E., Dubow, J., Musmanno, J.)(mem. op. by Dubow, J.), the Pennsylvania Superior Court affirmed a Plaintiff’s verdict against Honda Motors in a case that addresses the current status of the Pennsylvania products liability law in the Post-Tincher era.   

Unfortunately, the decision in this unchartered area of strict products liability law is inexplicably listed as "non-precedential."  

One of the issues addressed by the Superior Court was whether the Pennsylvania Supreme Court’s holding in Tincher overruled long-standing precedential decisions which barred evidence of compliance with federal and regulatory standards in products liability cases.   The court in this case of Martinez ruled that the Tincher decision did not overrule prior cases in this regard.  As such, the Pennsylvania Superior Court affirmed the trial court’s decision that such proposed evidence was inadmissible.  

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price, as well as Attorney Bruce Zero of the Scranton, Pennsylvania office of Powell Law, for bringing this case to my attention. 

Centre County Court Confirms That Bad Faith Statute Does Not Apply to Carrier's Conduct in Litigation Process As a Legal Adversary

In the recent decision in the case of Hardy v. Erie Insurance Exchange, No. 2012-CV-2059 (C.P. Centre Co. March 7, 2017, Ruest, J.), the court addressed cross-motions for summary judgment in an automobile accident matter.   The case more specifically centered around property damage claims, medical expenses claims along with related bad faith claims.   The Plaintiff filed an action alleging breach of contract and bad faith.  

Of note, the court allowed the breach of contract action to go forward as genuine issues of material fact remained on that count.   However, the court granted summary judgment to the carrier on the Plaintiff’s claims for bad faith.  

In so ruling, the court noted that, an insurance company is not required to blindly pay each claim without investigation in order to avoid a bad faith lawsuit.  

While the Plaintiffs argued in this matter that the Defendant carrier acted in bad faith by failing to promptly and accurately investigate and handle the claim, the court found that the facts of record indicated that the carrier responded to the claim within a reasonable amount of time.   The court also found that the Defendant carrier was not liable for bad faith under the allegations of violations of the Unfair Insurance Practices Act.  

The court also rejected the Plaintiff’s claims for bad faith under 42 Pa. C.S.A. §8371 on the basis of the Defendant’s allegations during litigation.   The court noted that the appellate courts of Pennsylvania have declined to find that the broad language of §8371 covers a party’s action during discovery as a basis for a bad faith allegation.  

Rather, §8371 has been read by the Pennsylvania appellate courts to only allow for a remedy for bad faith conduct that alleged arises when a carrier is acting as an insurer, not actions by the carrier when acting as a legal adversary in the litigation process.  

Overall, the court granted summary judgment to the carrier on the bad faith claim.  

Anyone wishing to review this decision may click this LINK.

Monday, April 24, 2017

Opinion Addressing the Quantity Part of the Quantity/Quality Test for Proper Venue Against a Business Entity

In the case of Dildine v. Western Alliance Emergency Services, No. 2016-CV-2335 (C.P. Lacka. Co. April 19, 2017 Nealon, J.), the court addressed the "quantity" part of the quantity/quality test for determining whether a corporation regularly conducted business in a particular county for proper venue purposes.

In this case a Bradford County resident filed suit in Lackawanna County against a Bradford County ambulance driver and his Bradford County employer for injuries allegedly arising out of a Bradford County motor vehicle accident.

The Defendants file Preliminary Objections challenging venue.  In response, the Plaintiffs asserted that the Defendant employer regularly conducted business in Lackawanna County such that venue would be proper against all Defendants under the venue rules found at Pa.R.C.P. 1006 and 2179.

Judge Nealon cited to the precedent holding that, to support a finding that a business regularly conducted business in a particular county for venue purposes, the quantity of that entity's activities in the desired county must be "so continuous and sufficient to be general or habitual."

Applying the venue rules to the case before him, Judge Nealon found that the Defendant employer's activities in Lackawanna County were not sufficient to support the filing of the lawsuit in Lackawanna County.

As such, the Defendant's Preliminary Objections were sustained and the case was transferred to Bradford County with the costs of the transfer ordered to be borne by the Plaintiff.

Anyone wishing to review this decision may click this LINK.

Saturday, April 22, 2017


REMINDER:  This Wednesday, April 26, 2017, is Administrative Professionals (Secretary's) Day. A show of gratitude towards those who assist us in our day-to-day work will likely be greatly appreciated.

Friday, April 21, 2017

Motion to Sever and Stay Bad Faith Claim Denied in Fayette County Case

In a recent March 23, 2017 Order only out of the Court of Common Pleas of Fayette County in the case of Rimel v. Mutual Benefit Insurance Company and State Farm Mutual Automobile Insurance Company, No. 2450 of 2016, G.D., (C.P. Fayette Co. March 23, 2017 Cordaro, J.),Judge Linda R. Cordaro denied the Motion of Defendant, Mutual Benefit Insurance Company, to Sever and Stay a Bad Faith Claim.  

Anyone wishing to secure a copy of this Order may contact me at   Again, this decision is by Order only and without any Opinion.  

I send thanks to Attorney Brad D. Trust of the Pittsburgh, PA law office of Edgar Snyder & Associates, LLC, for bringing this Order to my attention.

Bifurcation of Coverage and Bad Faith Issues Denied in Eastern District Case

In the case of Eizen Fineberg & McCarthy, P.C. v. Ironshore Specialty Ins. Co., No. 16-2461 (E.D. Pa. Dec. 7, 2016 Slomsky, J.), the court denied a carrier’s Motion to Bifurcate the insured’s bad faith claim from a coverage claim. 

The carrier argued that the bad faith claims were dependent upon a finding of a breach of contract and that it would impose unnecessary discovery burdens on the parties in a case that could be resolved through a finding of no coverage (and, therefore, no bad faith).  

The court refused to find that the insured’s bad faith was dependent upon the carrier’s coverage claim.   The court noted that there could be other bases for the claim for bad faith.   The court also noted that judicial economy would be served by litigating the two (2) claims together.  

Anyone wishing to review this case may click this LINK.
I send thanks to Attorney Lee Applebaum of the law firm of Fineman Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.