Monday, February 17, 2020

Plaintiff Precluded From Testifying as to Defendant's Speed Where Only Saw Vehicle a Split Second Before Impact

In the case of Berklovich v. Quarrick, No. 2567-CV-2018 (C.P. Westmoreland Co. 2020 Scherer, J.), the court granted a defendant's Motion for Partial Summary Judgment and dismissed a Plaintiff's claim for punitive damages based upon allegations of excessive speed and cell phone use by the defendant during a motor vehicle accident.

According to the Opinion, the Plaintiff was rear ended and, as a result, her vehicle was propelled forward across two lanes of traffic.

After discovery, the defense filed a partial motion for summary judgment seeking a dismissal of the punitive damages claims.  The court granted the motion.

While the court agreed that driving at an excessive rate of speed and using a cell phone could constitute conduct sufficient to support a claim for punitive damages, the court also found that the Plaintiff had not presented sufficient evidence to support such a claim.

The court noted that the only testimony on the speed of the defendant's vehicle was from the Plaintiff.  The Plaintiff admitted that she only saw the defendant's vehicle a split second before the impact.  Relying upon the case of Guzman v. Bloom, 198 A.2d 499, 502 (Pa. 1964) and the case of Anderson v. Perta, 10 A.2d 898 (Pa.Super. 1940), the court ruled that observing the defendant's vehicle for such a short amount of time before the accident did not lay a proper foundation for the Plaintiff to offer her lay opinion as to the speed of the defendant's vehicle.

On the issue of the defendant's cell phone use, the court noted that the Plaintiff did not secure the defendant's cell phone records or otherwise present evidence to confirm that the defendant was using his phone at the time of the accident.  The court rejected the Plaintiff's effort to rely upon an allegation in the Complaint that the defendant was unconscious after the accident and had no recollection of whether he was on his cell phone at the time of the accident or not.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this decision to my attention.


Friday, February 14, 2020


Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.



Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.

Bifurcation of Trial

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier. The decision was issued by Order only.

Effect of Third Party Release

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out.

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).
The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

Effect of Third Party Release

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.” The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988). The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.
The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.

Household Exclusion

The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle. The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier. The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative exclusion is not valid. The trial court is now following the federal courts on this issue.

Household Exclusion

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.  Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him. Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court. After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Future Medical Expenses

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury. See p. 21-26 of Opinion.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

It is noted that this decision did not affect the rule of law that past medical expenses have to be reduced in accordance with Act 6 before being presented to a jury.

Thursday, February 13, 2020

Judge Nealon of Lackawanna County Recites the Law of Invitees, Licensees, and Trespassers

As noted in the case below, a plaintiff's ability to recover in a premises liability case may turn on whether that plaintiff is deemed to be a business inviteee, licensee, or a trespasser.

In the case of Giles v. Pennsylvania American Water Co., No. 17-CV-5616 (C.P. Lacka. Co. Jan. 23, 2020 Nealon, J.), the court addressed Preliminary Objections filed by a landowner Defendant in a case involving a minor Plaintiff who was allegedly injured as a result of a fall on the Defendant’s property surrounding a reservoir.

In his Opinion, Judge Terrence R. Nealon provided a detailed recitation of the current status of premises liability law and the issues of whether a Plaintiff may be deemed as an invitee, licensee, or trespasser under the care presented. In this matter, the issue appeared to center around whether the Plaintiff was a licensee or a trespasser.

Finding that the Plaintiff had alleged sufficient facts to get beyond a demurrer, the court denied the Defendant’s Preliminary Objections in this regard.

The court also denied the Preliminary Objections filed by the Defendant against the Plaintiff’s general allegations of reckless and willful conduct.

Judge Nealon once again ruled, as he has done on numerous occasions in the past, that such claims may be generally pled under the Pennsylvania Rules of Civil Procedure.

The court noted that, upon the completion of discovery, the Defendant could test the of the validity of the punitive damages claim by way of a Motion for Summary Judgment.

The court also noted that the Plaintiffs would not be able to obtain any financial wealth discovery against the Defendant under Pa. R.C.P. 4003.7 unless the Plaintiff first demonstrated a prima facie right to recover punitive damages under Pennsylvania law.

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

If you need help bringing your premises liability case to close by way of a settlement at a Mediation, please do not hesitate to contact me to schedule a Mediation with Cummins Mediation.  I can be reached at or at 570-319-5899.

Borrowed Servant Doctrine Applied to Support Entry of Summary Judgment in Favor of Employer

In the case of Solomon v. FedEx Supply Chain, Inc., No. 1:17-CV-02385 (M.D. Pa. Jan. 14, 2020 Rambo, J), Judge Sylvia H. Rambo addressed the current status of Pennsylvania law on the borrowed servant doctrine.

According to the Opinion, this personal injury case arose out of a forklift accident that occurred within the scope of the Plaintiff’s employment.

At the time of the accident, the Plaintiff was a contractual employee for an employment agency and was assigned to work as a forklift operator and order picker at a FedEx Distribution Center.

Under the contract between the temporary employment agency and FedEx, FedEx was responsible for, among other things, training, supervising, and instructing staffing personnel, as well as for maintaining a safe workplace. The contract also provided that FedEx retained direction and control over the staffing personnel as it determined in its sole discretion to be appropriate, including the right to accept, reject, and remove staffing personnel.

Under the agreement, the employment agency was solely responsible for selecting, hiring, disciplining, reviewing, evaluating, and terminating personnel, as well as for paying the worker’s wages and maintaining the benefits.

The Plaintiff was injured on his first day of work at the FedEx Distribution Center after undergoing training in the morning and being assigned to shadow another FedEx employee. During that first day of work, the Plaintiff was operating a standup forklift when he collided with a parked forklift and allegedly sustained injuries as a result.

The Plaintiff sued FedEx following this incident.

FedEx eventually filed a Motion for Summary Judgment requesting the dismissal of the Plaintiff’s claims for negligence on the basis that FedEx was Solomon’s statutory employer and was therefore immune from suit under the Pennsylvania Workers’ Compensation Act.

The court noted that, generally speaking, employees who are injured at work are limited to compensation available to them under the Workers’ Compensation Act and cannot separately sue their employers for personal injury.

The court noted that this immunity provided by the Workers’ Compensation Act extends from the direct employer as well as to other entities that may have “borrowed” the employee and if the latter exercises sufficient control over the employee.

Under the borrowed servant doctrine, the “crucial test” in determining whether a worker furnished by one person to another becomes the employee of the person to whom he is loaned is whether the worker passes under the latter’s right of control with regards not only to the work to be done but also to the manner of performing it.

A borrowed employee in this regard is considered to a statutory employee and the borrowing employer is considered to a statutory employer.

The court noted that, if there are issues of fact on the issue of whether a defendant is a statutory employer, the question is usually one to be decided by a jury.   However, where the material facts are not in dispute the question can be properly the subject of a Motion for Summary Judgment.

After applying the law to the facts before her, Judge Rambo concluded that FedEx was the Plaintiff’s statutory employer pursuant to the borrowed servant doctrine. Accordingly, the court found that FedEx was entitled to immunity under the Pennsylvania Workers’ Compensation Act to any personal injury suit. As such, FedEx’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Richard B. Wickersham, Jr., of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Judge Zulick Requires Plaintiff To Specify in her Complaint the Defect That Allegedly Caused Her to Fall

In the case of Meade v. Pawz, No. 6112 Civil 2019 (C.P. Monroe Co. Jan. 29, 2020 Zulick, J.), Judge Arthur K. Zulick sustained a defendant's preliminary objections to a non-specific slip or trip and fall Complaint but allowed the plaintiff the right to file a Third Amended Complaint.

According to the Opinion, in the plaintiff's Second Amended Complaint, the plaintiff generally averred that she "tripped and fell on the dangerous conditions of the Defendant's property."

She then asserted in another single paragraph that the defendant's "allow(ed) a defective floor near the entranceway to the building, a defective rug near the entranceway to the building, a defective step tread dimension, a defective step of the building and a defective entranceway to the building to exist thereon (hereinafter referred to as the "dangerous conditions.").

Judge Arthur K. Zulick
Monroe County

The court noted that the Second Amended Complaint was not specific enough to apprise the defendant as to what caused the Plaintiff to fall or whether she had a chain reaction fall down event after encountering numerous alleged defects on the floor, a rug, a step, and/or some other unspecified defect of the entranceway to the building.

In allowing the plaintiff another shot at properly pleading a cause of action, the court cautioned that the allegations of negligence should be directed to a particular defect that allegedly caused the plaintiff to fall.

Anyone wishing to read Judge Zulick's decision in the Meade case may click this LINK.

I send thanks to Attorney Paraskevoula Mamounas, of the Allentown, PA office of Thomas, Thomas & Hafer for bringing this case to my attention.

Need help bringing your trip or slip and fall case to a close by way of a settlement.  Please consider scheduling a mediation with Cummins Mediation Services.  Resume and Fee Schedule available upon request at or by calling 570-319-5899.

Wednesday, February 12, 2020

Removal of Car From Policy Does Not Require Carrier to Secure New Waiver of UIM Stacking Form

In the case Franks v. State Farm Mut. Ins. Co., 93 Bucks Co. L. Re. 6 (C.P. Bucks Co. Nov. 18, 2019, McMaster, J.), the court ruled in favor of the carrier in a declaratory judgment action involving UIM coverage and stacking issues.

The court noted that the issue before it appeared to involve a case of first impression, that being the issue of whether, under the MVFRL, is there a “purchase” of insurance when an insured removes a vehicle from their policy, thereby reducing the number of cars subject to a stacking requirement.

The court held that, under the Pennsylvania Motor Vehicle Financial Responsibility Law, State Farm was not obligated to offer its insureds the opportunity to waive stacking of underinsured motorist coverage when the insureds removed a vehicle from an already existing policy.

The court noted that, under 75 Pa. C.S.A. §1738(c), an insurance company must offer an insured the opportunity to waive stacking of UIM limits whenever an insured purchases UIM coverage for more than one vehicle under a policy.

The court noted that that the determination of the outcome of this case fell upon the definition of the word “purchase” under the statute.

The court applied the rules of statutory construction that words that are clear and free from all ambiguity to be applied in their ordinary and common usage.

The court reviewed other cases, including Sackett I, and found them not be to directly on point as the prior cases dealt with facts involving the increase of the number of vehicles on a policy or switching out vehicles on a policy.

The court noted that, while affirmatively adding a vehicle to an insurance policy requires the signing of a new waiver, the modification of an already existing policy does not.

In this case, the court indicated that it was dealing with the removal of vehicles from the policy and decreasing policy premiums. The court noted that a removal of a vehicle from the policy constituted a modification of a policy, and not a “purchase” of a new vehicle.

Accordingly, the court held that, removing a vehicle from an already existing policy, should not trigger the requirement that a carrier secure a new waiver of stacking when issuing the revised policy.
As such, in this Rule 1925 Opinion, the trial court recommended to the Superior Court that the Plaintiff’s appeal be quashed or denied.

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

I send thanks to Attorney John K. Shaffer of the Plymouth Meeting, Pennsylvania law offices of Lester G. Weinraub for bringing this case to my attention.