Thursday, May 28, 2009

Pennsylvania Association For Justice Puts On Excellent Seminar at the 27th Annual Pennsylvania Automobile Law Program in Philadelphia

Yesterday (May 27, 2009), I attended excellent presentations on the current status of Pennsylvania automobile law at the 27th Annual Pennsylvania Automobile Law Seminar put on by the Pennsylvania Association of Justice.

Attorney Leonard Sloane did a great job as the moderator, keeping the program moving and providing his own insight on the many topics covered.

The following is a recap of some of the highlights of the seminar.

Update of First Party, Third Party Liability, Limited Tort, and Coverage Issues

Attorney David Lutz's thorough recap of the case updates confirmed that there were not too many earth-shattering opinions handed down recently. Many of the cases reviewed were the ones that have been summarized in previous posts to this blog, such as the excess insurance case of Kropa v. Gateway Ford case and others.

Attorney Lisa Woodburn provided some nice tips on the inter-play between workers comp law and the auto law arena. Also, Frank J. Wesner, Jr. Esquire took part in discussion of the updates in bad faith law.

Later in the seminar, Attorney Lutz also provided tips or reminders to improve one's trial performance and results, which are always good to hear. Here are the ten tips covered and suggested to keep in mind:

1. Failure to clearly develop a powerful theme.

2. Failure to file appropriate motions in limine.

3. Failure to use a legal assistant during voir dire (to assist you in writing down juror's answers and info).

4. Failure to ask open-ended questions and follow-up questions during voir dire.

5. Failure to use demonstrative exhibits during opening statement.

6. Failure to properly prepare Plaintiff for cross-examination.

7. Failure to properly prepare treating doctor's testimony concerning causation and prognosis opinions.

8. Failure to use the internet for cross-examination of the Defendant witnesses, especially the defense expert witnesses.

9. Failure during closing argument to clearly convey that "the goal is money."

10. Failure to have a legal assistant properly conduct a jury debriefing after a verdict.

Update on Subrogation

Jason E. Matzus, Esquire from Pittsburgh presented his update on subrogation issues. If a passion is needed to become and expert on this topic and bring it to life during a seminar, this guy has it.

Of particular note, were his written materials and presentation on the impending Medicare Set-Aside issue. Attorney Lutz reviewed the Medicare, Medicaid and SCHIP Extension Act of 2007 which is to become effective on July 1, 2009. This Act, which is apparently directed at the liability industry and not plaintiff's attorneys, has the bar up in a tizzy about whether or not Medicare Set-Asides, common in worker's compensation cases, will be required in third party liability cases.

The purpose of the Medicare Set-Aside provision is to ensure that the primary payers (liability carriers) bear the cost of future medical expenses so that Medicare does not have to pay them down the road. The provision works by requiring that money be set aside from a settlement and be kept at the ready for the payment of future medical expenses. The Act also provides for hefty penalties if the provisions are not followed.

In his presentation and materials, Attorney Lutz explains while there is a growing movement to expand this program of Set-Asides from the worker's comp arena to the litigation arena, it is currently only a rare occurence in Pennsylvania that the issue is raised in the litigation context. However, if Medicare's budgetary problems continue, it is anticipated that the Set-Asides may become a mandatory requirement in third party matters.

Currently, it does not appear to Attorney Lutz that there are any express requirements that Plaintiff's attorneys create any Medicare Set-Aside plans (MSAs) to date. As long as a liability settlement does not specifically delineate some of the monies to future medical care, then no amount of the settlement would appear to be covered by Medicare's efforts to recover for future medical expenses.

Attorney Lutz cautiously concludes, however, that since we are proceeding in "unchartered waters" in the absence of any specific guidance from the applicable law, there is no "safe harbor" course of conduct currently established for litigants to avoid Medicare's reach on this issue.

Update on Bad Faith Law

The hot topic in the bad faith arena is the settlement of a class action lawsuit out of the Miller County trial court in Arkansas involving UM/UIM policies under Allstate and CNA auto policies. The case involved allegations that, between January 1, 1994 and February 19,2009, those companies underpaid claimants by using computer programs such as Colossus, Claims Outcome Advisor, and/or Injury IQ to evaluate cases. Despite settling the suit, the carriers denied that they underpaid claims and asserted that their use of these computer programs was proper.

More detailed information on this settlement, and whether a claim you previously concluded may be covered by it, can be found at

James Ronca, Esquire on 18 Wheels and 2 Wheels--Some insights into non-automobile vehicle cases

The always energetic and entertaining Attorney James Ronca provided some nice, informative samples on conducting depositions in trucking accident cases. He also provided primers on how to handle and approach bicycle accident cases and motorcycle accident cases. Many great tips were gathered from his presentation.

Koken Update, UM/UIM Update

The case updates in the Koken area confirmed that there have not been any more recent significant cases handed down recently other than those cases reviewed in the blogs noted below, particularly with respect to the trial courts allowing UIM and third party cases to proceed in a consolidated fashion under one caption under the rationale of judicial economy.

During this portion of the program, noted Plaintiff's attorney Scott Cooper and noted defense attorney James Haggerty faced off with varying points on the important UM/UIM cases over the past year or two, such as the Sackett cases, the Generette case, and others. As these two attorneys were personally involved in the cases discussed, they were able to to an excellent job explaining the ins and outs of how these cases came to be as well as the implications of those decisions on future UM/UIM cases in a readily understandable way.

A highlight of the Koken portion of the program was a presentation by Judge Robert Colville of the Allegheny County Court of Common Pleas and Plaintiff's attorney Sean Carmody who worked one of state's first post-Koken-like cases. The defense counsel was unable to make it to the discussion.

The UM claim that they tried before a jury involved an out-of-state State Farm policy that did not have an arbitration clause.

The judge noted that he viewed the case as a contract dispute between a carrier and its insured, with the case having many tort concepts to consider. With the agreement of counsel, the court openly and honestly explained to the jury the nature of the contract dispute between the claimant and State Farm Insurance Company as a defendant. The court advised the jury that the carrier had a duty to provide the coverage or benefits available under the insurance policy where warranted.

During voir dire, defense counsel was permitted to ask basis questions such as whether the jurors had ever had a claim against a carrier and whether their experience was good or bad.

Plaintiff's attorney was allowed to present a theory of the case during the opening statement of corporate vs. the little guy, insurance company vs. the little insured, etc., as well as argue the claimant's position that he had paid an premium for these UM benefits and that the claimant felt that he was entitled to an award under the circumstances presented in this case involving a DUI tortfeasor. Plaintiff's counsel noted that the defense counsel took pains to separate State Farm from the DUI tortfeasor (who was not present at the trial).

Plaintiff's counsel noted that the defense went through the trial with an empty chair and the claims rep in the back of the courtroom. Plaintiff's counsel only called the claims rep as a witness for a brief and limited purpose during trial.

The issue of the declarations page, or other information on the available limits, did not come into play given the plaintiff's counsel's strategy of not offering that info to the jury in order to avoid any potential preconceived notions as to the value based upon the coverage.

I believe it was indicated that the verdict came back in the high six figures range, but that would have to be confirmed.

All in all, it was a very informative day with six CLE credits in the bank, followed by a few innings of the Phillies at the Citizen's Bank Stadium under a perfect night for baseball.

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