Thursday, September 20, 2018

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

In the case of Blair County case of Fisher v. Erie Insurance Exchange, No. 2016-GN-298 (C.P. Blair Co. May 9, 2018 Bernard, J.), the trial court denied the insurance company’s Motion to Sever the UIM and bad faith claims and further denied the carrier’s Motion to Stay the bad faith case.

This matter arose out of a motor vehicle accident and a UIM claim pursued by the injured party Plaintiff.  

In its decision, the court reviewed the split of authority and case law in the various state and federal courts on the issues of severance and stay of bad faith claims in post-Koken matters. The courts noted that the federal courts in Pennsylvania tend to deny such motions and that the state trial courts have varying results, including conflicts within some same counties.  

In Blair County, where this case is pending, there were previous decisions in which such motions to sever were denied and bad faith discovery was allowed to proceed.   In this regard, the court cited the case of Swan v. Moorefield, No. 2014-GN-2606 (C.P. Blair Co. Nov. 9, 2017).  

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

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

Limited Deposition of Claims Rep Allowed in Luzerne County Post-Koken Case

In her recent Order in the case of Simonetti v. Lalko and Depositors Ins. Co., No. 2018-CV-02421 (C.P. Luz. Co. Aug. 27, 2018 Gelb, J.), the court denied the carrier’s Motion for a Protective and to Stay a Deposition of its Adjuster but confirmed that the Plaintiff may not inquire into areas of the adjuster’s mental impressions or conclusions or opinions respecting the value or merit of the claim or with respect to defenses of the claim or strategy or tactics in the defense of the claim by the carrier.   

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



Tuesday, September 18, 2018

PA Eastern Federal District Court Finds Long Arm Statute for Personal Jurisdiction Not Abrogated

In the case of Allstate Insurance Company v. Electrolux Home Products, Inc., No. 5:18-00699(E.D. Pa. Aug. 3, 2018 Leeson, J.), the court granted a Motion to Sever and Transfer a portion of the case.

The court ruled that the Plaintiff’s Complaint, joining together 86 separate subrogated incidents from many different states, could not stand before the Eastern District Federal Court.  

This decision is notable in that the court reaffirmed the rule that registration to do business in Pennsylvania, without more, is sufficient to establish general personal jurisdiction over a corporate Defendant.

Judge Leeson also reaffirmed the precedent holding that cases interpreting the Pennsylvania long arm statute in this regard have not be abrogated by more recent United States Supreme Court precedent.  

Relative to the claims in this matter, which arose under different states’ laws, the court felt that the claims should be severed.   After severance, the cases are considered to be separate cases, and many of them in this matter were found to fail to satisfy the diversity amount in controversy requirement, which necessitated the dismissal of those claims.   The remaining valid non-Pennsylvania cases  were ordered to be transferred to a more appropriate forum. 

Anyone wishing to review a copy of this case may click this LINK.  The Court's Order can be viewed HERE

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.

Personal Jurisdiction Issues Reviewed by Judge Brann in PA Federal Middle District Court Case

In the  products liability case of Mendoza v. Electrolux Home Products, Inc., No. 4:17-02028 (M.D. Pa. Aug. 20, 2018 Brann, J.), the court reviewed various personal jurisdiction issues and denied a Plaintiff’s Motion for a Re-transfer of a Case.  

Of note, the court ruled that, since an argument of a lack of personal jurisdiction is waivable, and given that the Defendants had consciously waived personal jurisdiction issues in this matter, the Plaintiffs could not rely upon the lack of such jurisdiction to support a re-transfer of this action.  

Judge Brann otherwise held that Defendants that have registered to do business in Pennsylvania thereby consent to the exercise of personal jurisdiction by Pennsylvania courts.  

Judge Brann additionally reviewed Pennsylvania cases in this context and found that cases interpreting Pennsylvania’s long arm statute have not been abrogated by more recent United States Supreme Court precedent. 

Anyone wishing to review a copy of this case may click this   The court's Order can be viewed HERE.

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.

Punitive Damages and Corporate Negligence Claims Against a Summer Camp Addressed By Judge Mannion

In the case of Goodfellow v. Shohola, Inc., No. 3:16-1521 (M.D. Pa. Aug. 21, 2018 Mannion, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving alleged negligent medical care provided by a summer camp to the Plaintiff's child..    

Judge Malachy E. Mannion
M.D. Pa.
In part, the court ruled that, where the Plaintiffs’ original Complaint pled a plausible factual basis for punitive damages, even though the original Complaint did not request such damages.  Later punitive damages allegations asserted by the Plaintiff were deemed to relate back and were, therefore, not barred by the statute of limitations.

In another notable decision in this matter, the court ruled that an overnight camp is not the type of entity that can be held liable on a corporate negligence medical malpractice claim.   The court found only that a comprehensive health center with responsibility for arranging and coordinating the total health of its patients can be subject to such corporate negligence liability.  

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, and writer of the excellent Drug and Device Law Blog, for bringing this case to my attention.

Monday, September 17, 2018

Judge Caputo of Federal Middle District Addresses Proper Pleadings for a UIM Breach of Contract Claim

In the case of Swientisky v. American States Insurance Company, No. 3:18-cv-1159 (M.D. Pa. Aug. 8, 2018 Caputo, J.), the court granted in part and denied in part the UIM carrier’s Motion to Dismiss relative to a UIM claim asserted by the Plaintiff. 

According to the Opinion, this matter involved a UIM claim in which bad faith was not pled.   Rather, this was a breach of contract claim that included allegations of generic violations of the Motor Vehicle Responsibility Law in support of a claim for UIM benefits.  

The UIM carrier filed a Motion to Dismiss asserting that allegations of improper claim handling should be stricken from the Complaint because such alleged improper claim handling was not relevant to a cause of action in which bad faith has not been pled.

The court disagreed and found that improper claim handling could be relevant to a contract claim, even in the absence of bad faith, because the decision-making during the claims handling could go to the reasoning behind the denial of the contract claim.  

On another issue, the UIM carrier asserted that the court should dismiss, or order a more definite statement, with respect to the insured’s unidentified statutory violations given that the Plaintiff had failed to allege any bad faith violation or identify the provisions of the MVFRL that the carrier allegedly violated.

Judge A. Richard Caputo
Pa. M.D. Ct.
Judge Caputo dismissed this statutory count in the Complaint given that the Plaintiff had failed to plead an alleged statutory violation with any detail and given that the facts pled did not set forth such alleged wrongdoing. 

Anyone wishing to review a copy of this Opinion may click this LINK.  The companion Order can be viewed HERE.

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

Friday, September 14, 2018



When writing a letter summarizing medical records or other documents to a client or a claims representative overburdened with hundreds of files to manage, it may help the reader to put the case into context.  A suggested way to do this may be to start all letters in the following fashion:

Dear __________:

Please allow this letter to serve as a status report in the above matter.

We recently received the enclosed records from Dr. John Jones, the Plaintiff's family doctor.  What follows is a concise summarization of the same.

As you may recall, this matter arises out of a September 1, 2016 rear end motor vehicle accident that occurred on Main Street in Scranton, Lackawanna County, Pennsylvania.  The Plaintiff primarily alleges neck and back injuries.

With these introductory paragraphs in the letter, the reader can refer back to see the date of the accident as they follow along the chronology of the treatment history contained in the summary letter.

Also, if the summary letter reviews an extensive prior medical history along with a lengthy post-accident treatment history, be sure to include a one line paragraph in the appropriate spot in the chronology that reads:

As stated, the rear end subject accident occurred on September 1, 2016.

Again, this will put the history of the case into context for the reader for his or her ease of understanding.