Monday, November 30, 2009

Upcoming Auto Law CLE Course Next Wednesday, December 9, 2009

I am scheduled to present at next week's Auto Law CLE Seminar at the Hilton Scranton. I will be presenting a seminar entitled "Mediation/Arbitration Tips" with Judge Thomas Raup of ADR Options, Inc.

A few years ago I interviewed him for a Pennsylvania Law Weekly article on the same topic. Who better to consult than a retired Judge who has since presided over 1000 or so Mediations or Arbitrations. I later turned that article into a CLE presentation and plan to repeat it at next Wednesday's seminar.

If you are interested in attending this seminar, or you need CLE credits before the end of the year, here are the details:

AUTO LAW CLE
(3 Substantive Credits & 1 Ethics Credit)
Scranton Hilton
Wednesday, December 9, 2009
9 a.m. - 1 p.m.

COST:

PAAJ Members: $200.00
Non-Member Attys: $240
Judicial Law Clerks: Free
Law Students: Free


TOPICS:

-MEDICARE SET-ASIDES

-KOKEN UPDATE

-UPDATE ON LIENS

-MEDIATION/ARBITRATION TIPS

-ETHICAL PITFALLS IN AUTO PRACTICE


Presenters:

Malcolm L. MacGregor, Esquire (course planner)
Hon. Terrence R. Nealon
Hon. Thomas C. Raup
John T. Bair
Daniel E. Cummins Esquire
David I. Falk, Esquire
P. Timothy Kelly, Esquire

Another recent post-Koken case

I have been notified of another post-Koken case in favor of consolidation. The case of Vernon v. Erie Ins., highlighted below in bold in the compilation, was issued by Judge Wettick. I thank Attorney William R. Haushalter of the Pittsburgh office of Margolis Edelstein for bringing this case to my attention.


The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.

All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.


To date there have been at least sixteen (16) trial court decisions in favor, or suggesting they would be in favor, of the consolidation of UIM and third party claims. Those decisions have come out of Lackawanna, Luzerne, Pike, Lehigh, Philadelphia, Dauphin, Beaver, and Allegheny Counties.

There have also been at least three (3) trial court decisions in favor of the severance of the UIM claims and third party claims. Those decisions have come out of Butler and York Counties.



I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.

If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I am in possession of a copy of most of the opinions noted.

I also invite anyone, including claims representatives, needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.


The post-Koken cases that I am aware of to date on the consolidation/severance issue are, as follows:

DECISIONS IN FAVOR OF CONSOLIDATION

Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage). See also Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007).

Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).

Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).

Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).

Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).

Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).

Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).

Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).

Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).

Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).

Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied).

Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied).

Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687 (request to sever UIM claim and third party claim denied).

Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989 (request to sever UIM claim and third party claim denied).

Gingrich v Esurance and Susan Graci, No. 08795 CV 2009 (Dauphin Co. Nov. 2, 2009, J. Hoover)(Tortfeasor's preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption denied in one line Order).



DECISIONS IN FAVOR OF SEVERANCE

Weichey v. Marten and Allstate, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Court orders severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).

Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(Court orders UIM claim and third party claim severed).

Grove v. Uffelman and Progressive Ins. Co., 2009 WL 3815756, No. 2009-SU-2878-01 (York Co., Nov. 9, 2009, Chronister, J.)(Court orders UIM claim and third party claim severed).



SUPERIOR COURT DECISIONS IN POST-KOKEN CASE

O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly)(Consolidation vs. severance issue not implicated as plaintiff settled with tortfeasor and only sued UIM carrier in post-Koken case; Superior Court upholds UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident)(As of November 30, 2009, the Plaintiff had filed for re-argument en banc before the Superior Court but no word yet as to whether that request was being granted).

Saturday, November 28, 2009

Latest Compilation of Post-Koken Cases

The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.

All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.


To date there have been at least fifteen (15) trial court decisions in favor, or suggesting they would be in favor, of the consolidation of UIM and third party claims. Those decisions have come out of Lackawanna, Luzerne, Pike, Lehigh, Philadelphia, Dauphin, Beaver, and Allegheny Counties.

There have also been at least three (3) trial court decisions in favor of the severance of the UIM claims and third party claims. Those decisions have come out of Butler and York Counties.

I have an article coming out in this week's Pennsylvania Law Weekly providing a detailed review of this split of authority in the post-Koken cases on the issue of consolidation vs. severance. I will republish that article on this blog later this week.



I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.

If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I am in possession of a copy of most of the opinions noted.

I also invite anyone, including claims representatives, needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.


The post-Koken cases that I am aware of to date on the consolidation/severance issue are, as follows:

DECISIONS IN FAVOR OF CONSOLIDATION

Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage). See also Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007).

Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).

Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).

Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).

Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).

Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).

Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).

Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).

Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).

Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied).

Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied).

Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687 (request to sever UIM claim and third party claim denied).

Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989 (request to sever UIM claim and third party claim denied).

Gingrich v Esurance and Susan Graci, No. 08795 CV 2009 (Dauphin Co. Nov. 2, 2009, J. Hoover)(Tortfeasor's preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption denied in one line Order).



DECISIONS IN FAVOR OF SEVERANCE

Weichey v. Marten and Allstate, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Court orders severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).

Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(Court orders UIM claim and third party claim severed).

Grove v. Uffelman and Progressive Ins. Co., 2009 WL 3815756, No. 2009-SU-2878-01 (York Co., Nov. 9, 2009, Chronister, J.)(Court orders UIM claim and third party claim severed).



SUPERIOR COURT DECISIONS IN POST-KOKEN CASE

O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly)(Consolidation vs. severance issue not implicated as plaintiff settled with tortfeasor and only sued UIM carrier in post-Koken case; Superior Court upholds UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident).


PLEASE PUBLICIZE CASES

It is again emphasized that it is important that these cases be publicized so that the judiciary and the bar can attempt to develop a consistent common law on the issues presented. If you come across such a case it may be advisable to make the Pennsylvania Defense Institute or the Pennsylvania Association for Justice aware of the new decision so that they can work to publicize it across the state. I, too, will continue my efforts in that regard here on Tort Talk.

Monday, November 23, 2009

HAPPY THANKSGIVING

As we come to that time of year where we give thanks, I thank all of the subscribers and readers of the Tort Talk for your support.

I wish you and yours a very Happy Thanksgiving and send my best wishes to you for a great Holiday Season.

Sunday, November 22, 2009

Pennsylvania Supreme Court Grants Allocatur in a "Regular Use" Case

On November 18, 2009, the Pennsylvania Supreme Court issued an Order in the case of Williams v. GEICO, 2009 WL 3850443, 147 WAL 2009 (Pa. 2009) agreeing to address the following issue:

"Whether, under the MVFRL and our decision in Burstein v. Prudential Property & Cas. Ins. Co., 809 A.2d 204 (Pa. 2002), the “regular-use” exclusion to underinsured motorist coverage in an automobile insurance policy is valid where the insured is a police officer, who has sustained bodily injury in the course of performing his duties while driving a police vehicle, for which vehicle he could not have obtained underinsured motorist coverage."

In this case, the Lawrence County Court of Common Pleas granted GEICO's motion for summary judgment and denied the injured party's motion to compel arbitration. The Superior Court affirmed without an opinion.

Check Out Google Scholar for Legal Research

I recently learned that Google has created Google Scholar, a new search engine designed to seek out scholarly literature across many disciplines and sources, including books, theses, abstracts, articles. Now, as of November 17, 2009, Google Scholar also allows for the search of legal opinions in all 50 states as well as the Federal Courts.

To get there just type in "Google Scholar" in any search box. When you get to the Google Scholar page, click on the "Legal opinions and journals" choice and then submit your inquiry. You can find opinions by searching for cases (like Jones v. Smith), or by topics (like hills and ridges) or other queries that you are interested in.

You can also explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can also follow citations to the opinions to which it refers. You can additionally see how individual cases have been quoted or discussed in other opinions and in articles from law journals. These can be browsed by clicking on the "How Cited" link next to the case title.

While this may not be up to par with Westlaw or Lexis yet, it may be a nice vehicle to get a free, quick read on a case without having to go through the process of logging into Westlaw or Lexis before being able to submit the search terms--just go to Google Scholar and punch it in.

To be clear, I do not benefit in any way by referring to this new search engine. I just think you will at least find it interesting.

Thanks to Attorney Steven Seach for bringing Google Scholar to my attention.

Saturday, November 21, 2009

Former Luzerne County Judges Mark A. Ciavarella and Michael T. Conahan Granted Partial Immunity in Civil Suits

In Orders handed down yesterday, Senior Federal Middle District Judge A. Richard Caputo ruled that former Luzerne County Judges Mark A. Ciavarella and Michael T. Conahan were entitled to immunity from civil suits for matters related to actions they took from the bench.

These rulings appear to essentially dismiss most of the claims against Ciavarella from the civil suits. However, actions taken by the former judges, found not to be related to their work on the bench, could still be pursued in the civil lawsuits.

To view Judge Caputo's Orders go to:

http://www.wbcitizensvoice.com/pdfs/judges_immunity.pdf

http://www.wbcitizensvoice.com/pdfs/judges_memo.pdf

http://www.wbcitizensvoice.com/pdfs/judges_classaction.pdf

Thursday, November 19, 2009

Another Post-Koken Case out of Butler County in Favor of Severance

I was made aware of another post-Koken case in favor of severance at yesterday's PBI Auto Law Seminar in Scranton, PA. I thank Attorney John Lenahan for bringing this case to my attention and for providing me with a copy of the opinion.

Before Judge Horan's decision in Baptiste v. Strobel and State Farm in favor of severing UIM claims from third party claims in post-Koken cases, her counterpart on the Butler County Court of Common Pleas, Judge S. Michael Yeager, likewise issued a decision severing the UIM claim from the third party claim in the case of Weichey v. Marten and Allstate, A.D. No. 09-10116 (June 11, 2009). The rationale for that decision was that, generally, evidence of insurance was not admissible in negligence actions.

Judge Horan would later expound on that rationale in much greater detail in her opinion in Baptiste.

I have requested that the Weichey opinion be given a Westlaw citation. In the meantime, anyone desiring a copy of these opinions, please contact me at dancummins@comcast.net.

Westlaw Cites for Recent Post-Koken Cases in favor of Severance

The newly annointed Westlaw citations for the recent post-Koken cases in favor of severing the UIM claim from the third party claims are, as follows:

Baptiste v. Strobel and State Farm, 2009 WL 3793590 (Butler Co., Nov. 5, 2009)

Grove v. Uffelman and Progressive, 2009 WL 3815756 (York Co., Nov. 9, 2009)

Note that all the Pa. trial court opinions on WL go into a database called "PA-TRIALORDERS." That's not part of "PA-CS-ALL" so you have to add the trial orders database to search for "all" Pa. cases.

You can also plug the cite in the "Find by Citation" box on the right hand side of the Westlaw screen.

Thanks to Attorney James Beck of the Philadelphia office of Dechert for getting these citations up on Westlaw.

Monday, November 16, 2009

REMINDER: This Thursday (11/19/09) HOLIDAY HAPPY HOUR at Mohegan Sun Casino

Northeastern Pennsylvania Trial Lawyers Association is hosting a

Holiday Happy Hour

Thursday November 19, 2009
5:30pm to 7:30pm
Mohegan Sun at Pocono Downs
(in their Party Room)
Wilkes-Barre, PA

RSVP by November 12
to Dan Cummins
570-346-0745
dancummins@comcast.net

Members: Free
Non-Members/Guests: $25

Friday, November 13, 2009

A Growing Rift: Another Pennsylvania Trial Court Opinion Severing Third Party/UIM Claims in Post-Koken Case (100th Post to this Blog)

There are signs of a growing rift in the post-Koken trial court opinions on the issue of whether the third party claims against the defendant-driver should be allowed to proceed in a consolidated fashion under one lawsuit with the underinsured (UIM) claim against the UIM carrier for the same accident.

As recently reported in this blog, in a November 5, 2009 decision issued by Butler County Court of Common Pleas Judge Marilyn J. Horan in the case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., A.D. 09-11444 (Butler Co. Nov. 5, 2009), it was held that such cases should be severed, primarily to avoid undue prejudice to the tortfeasor that may result from the introduction of insurance issues at trial.

Now, Judge John H. Chronister of the York County Court of Common Pleas has issued a similar decision a few days ago in a November 9, 2009 Opinion and Order in the case of Grove v. Uffelman and Progressive Ins. Co., No. 2009-SU-2878-01 (York Co. Nov. 9, 2009).

In that case, the third party tortfeasor objected on the grounds that the joinder of these two types of claims was improper in that they did not arise out of the same transaction and given that the introduction of insurance issues would prejudice the defendant-driver on his side of the case.

The Plaintiff argued that the claims did arise out of the same transaction or occurrence and that judicial economy would be furthered and inconsistent verdicts would be prevented by a litigation of these claims under one caption. The Plaintiff also argued that the insurance problem could be avoided at trial by not mentioning insurance and referring to the issue by some other name.

Judge Chronister sided with the third party tortfeasor's arguments and ordered a severence of the cases.

Judge Chronister viewed the claims as involving separate transactions--the claim against the tortfeasor being a tort claim based on negligence and the claim against the UIM carrier being a contract claim to enforce the Plaintiff's rights under the policy.

The Judge also emphasized that his decision was largely influenced by the insurance issue. He noted that, by advising the jury that the Plaintiff was pursuing an underinsured claim, it follows by definition that the jury may conclude that the Defendant had insufficient liability insurance, which would be "a violation of the prohibition against the jury knowing about the Defendants' insurance coverage."

Judge Chronister also noted that, "[e]ven worse," the claim for UIM benefits tells the jury that there is a second insurance company involved as a source for payment, "potentially causing the jury to award an increased amount of damages." He also cautioned that such information may leave the jury with the incorrect assumption that the tortfeasor defendant would not remain personally responsible for any verdict in excess of the tortfeasor's liability limits.

Judge Chronister also did not think it was feasible to allow the claims to remain consolidated and somehow keep the insurance issue away from the jury as suggested by the Plaintiff. He noted that the very fact that the insurance company is named in the caption triggered the concerns that prevent insurance from being mentioned in civil litigation matters. He also noted that "it is always best to tell the jury exactly what is happening, and not camouflaged the situation unless it can't be avoided."

The Judge also noted, "[m]ost importantly," that if the Plaintiff's procedure of consolidated claims was adopted as a general rule UIM carriers may potentially be forced to unnecessarily participate in litigation and trials in case where the UIM coverage is never reached either because a verdict is entered in favor of the defendant-driver or an award is given that is within the defendant-driver's liability limits.

As such, the court granted the defendant-driver's preliminary objections and severed the two claims presented.

Given this increasing split of authority, it appears that appellate guidance is needed on the issue presented. It remains to be seen if a trial courts facing the issue will allow for an interlocutory appeal by permission on the issue so that a clarification on how to properly handle these cases can be provided to the bar.

Anyone desiring a copy of the above cases may contact me at dancummins@comcast.net.

For more posts on this blog pertaining to the KOKEN issue, please scroll down the right-hand column of this blog to the "Labels" section and click on "Koken."

I thank Candace N. Edgar, Esquire from the Mechanicsburg, PA office of Summers, McDonnell, Hudock, Guthrie, & Skeel, P.C. for bringing this case to my attention.

Thursday, November 12, 2009

Tort Talk Selected as a Link on a New Insurance Website

Tort Talk continues to gain wider recognition on the worldwide web.

The International Insurance Guide (http://www.compare-international-insurance.com/), is a new website that is designed "to create an easier way for people to share and promote the great information that’s out there" on insurance issues. The creators of that website, which is primarily based in Europe and Asia, recently contacted me to advise that they have selected Tort Talk as one of the blogs to be highlighted on their site for insurance-related information.

It is hoped that this linking will bring a wider audience for Tort Talk and, hopefully, some new attorney and client contacts in the insurance industry.

Will a call from Nancy Grace be next? (Hope not.)

Wednesday, November 11, 2009

Tort Talk is Being Picked Up for Syndication

I am proud to note that I was recently contacted by Newstex, an online syndication company, who advised that they had reviewed Tort Talk and determined that it would be a good fit for online syndication with Newstex.

Newstex (http://www.newstex.com/) is an online aggregator of real-time news, content, commentary and Twitter tweets that serves customers in the academic, financial, government, and entertainment markets. Clients of Newstex tap into the syndication and distribute it by delivery to its own end-users on the internet.

Basically, with respect to blogs, Newstex takes in blog posts from many different blogs hand-picked by Newstex, and combines it into one syndication making it easier for Newstex's clients to digest the information offered.

Among Newstex's clients are companies such as LexisNexis. Accordingly, my hope is that, by syndicating with Newstex, Tort Talk will gain wider exposure through those people who use LexisNexis or through those people who subscribe to any of Newstex many other clients.

In the meantime, this syndication will have no impact on the content of this blog or the continued free access by anyone on the internet who wants to view the blog. Most importantly, it won't have any impact on my current subscribers or any new subscribers I may generate. Rather, this is only an avenue to gain more exposure to the blog which will hopefully result in new attorney contacts and insurance company clients.

Lackawanna County Judge Carmen Minora Has Two Cases on Last Week's "Most Wanted Opinions" in Pennsylvania Law Weekly

In last week's Pennsylvania Law Weekly, two recent opinions by Lackawanna County Court of Common Pleas Judge Carmen Minora were listed as some of the "Most Wanted Opinions," or the most frequently requested decisions from the Pennsylvania Instant Case Service offered by that legal newspaper. Copies of the below opinions can be secured from the Law Weekly, for a small fee, by calling 1-800-276-7427 and giving the PICS No. noted below. What follows is a concise summarization of the cases:

Carra-Cielski v. Scrimalli, PICS Case No. 091650, 2006-CIVIL-2735 (Lacka. Co. August 18, 2009, Minora J.)

Judge Minora addressed the issue of whether a Defendant-owner of a motor vehicle should be granted summary judgment on a negligent entrustment claim involving a Defendant-driver who was the owner's grandson and who had a history of underage drinking.

Judge Minora acknowledged in his opinion that the Pennsylvania Supreme Court has limited the theory of negligent entrustment to specific and narrow situations where the owner of the vehicle knew or should have known that when permission was given to the driver, the driver was not in a condition to operate the vehicle.

However, Judge Minora appeared to expand that rule of law under the facts of this case to allow the claim of negligent entrustment to continue even though it did not appear that there was any evidence that the Defendant-owner knew or should have known that the Defendant-driver was incompetent to drive the vehicle at the time the Defendant-driver took the vehicle just prior to the accident.

In this case, Judge Minora pointed to the fact that the Defendant-driver, who was the grandson of the Defendant-owner and who had unfettered access to the vehicle, was known to have a history, over the two years leading up to the accident, of engaging in repeated patterns of underage drinking. It was also noted that, on at least one occasion prior to the subject accident, the Defendant-driver had even been found to have been drinking and driving the subject vehicle.

As such, Judge Minora ruled that the repeated conduct of the Defendant-driver arguably demanded greater vigilance, supervision, and control by the Defendant-owner over the vehicle that he owned. Accordingly, the Court felt that a jury could conclude that the Defendant-owner knew or should have known that the Defendant-driver “could become incompetent to drive his motor vehicle.” The Court found that the Defendant-owner’s willful blindness to his grandson’s repeated illegal activities means the Plaintiff could possibly prove to a jury the necessary elements constituting the cause of action of negligent entrustment.

As such, Judge Minora felt that it was premature to dismiss this case at the summary judgment stage.


Veltri v. Travelers Commercial Insurance Company, PICS Case 09-1653, No. 08-CIVIL-8534 (Lacka. Co. September 2, 2009)

This case involved a motor vehicle accident during which the Plaintiff’s vehicle was struck in a rear-end collision by a tractor trailer. The Plaintiff’s first party motor vehicle insurance carrier was Travelers. Travelers initially paid first party medical and wage loss benefits and then referred the Plaintiff for an IME.

The first IME was favorable to the Plaintiff and, as such, Travelers was compelled to continue paying first party benefits.

Thereafter, Travelers requested a second IME with a new and different “defense” physician (as described in the opinion) who issued an assessment that the Plaintiff’s allegedly ongoing conditions were no longer related to the subject accident. Based upon the second IME, Travelers ceased all first party benefits.

Judge Minora noted in his opinion that, “[w]ithout much surprise,” Travelers’ decision to terminate first party benefits led to the filing of a breach of contract and bad faith Complaint by the Plaintiff.

Travelers responded with Preliminary Objections to the bad faith count of the Complaint alleging that the general tenets of the bad faith statute at 42 Pa. C.S.A. §8371 are negated by the specific first party benefit remedies of the MVFRL found at 75 Pa. C.S.A. §1716 and §1798.

Judge Minora denied the Travelers’ Preliminary Objections and rejected the contention that the rules of statutory construction mandate that the punitive provisions for the nonpayment of first party benefits found under the MVFRL negate or trump the general bad faith statute. The court essentially ruled that where, as here, the Complaint alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the general bad faith statute at §8371 may additionally apply as well.

Monday, November 9, 2009

Pennsylvania Superior Court Upholds Carrier's Forum Selection Clause in a Post-Koken Case

On November 9, 2009, the Pennsylvania Superior Court issued an opinion upholding Liberty Mutual Insurance Group's forum selection clause in the post-Koken underinsured (UIM) case of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly).

According to the opinion written by Judge Kelly, this case involved plaintiffs who lived in Delaware County, Pennsylvania and a motor vehicle accident that occurred in Delaware County. After receiving the tortfeasor's limits, the plaintiff submitted a UIM claim to Liberty Mutual, who denied the claim. The plaintiffs filed suit in Philadelphia County alleging a breach of contract and loss of consortium claims.

Liberty Mutual's policy had a forum selection clause that provided that if suit was filed by the insured, the suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident."

After suit was filed in Philadelphia County, Liberty Mutual filed preliminary objections on the basis of improper venue. The trial court granted the preliminary objections and transferred the case to Delaware County. The plaintiff appealed.

On appeal, the Superior Court rejected the plaintiff's claims that the forum selection clause should be deemed void and unenforceable as it conflicts with Pennsylvania law and because it was against public policy.

Finding the clause to be clear and unambiguous, the Superior Court found the clause not to be in violation of Pennsylvania law. In terms of the plaintiff's public policy argument, the Court stated that a clause requiring the plaintiffs to litigate in the county in which they lived and in which the accident happened could hardly be said to be an insurance policy clause that would injure the public or be against the public good.

As such, the Superior Court affirmed the trial court's Order granting the carrier's preliminary objections on improper venue.

Anyone desiring a copy of this case may contact me at dancummins@comcast.net.


I thank Attorney Bruce Zero of the Scranton, PA law firm of Powell Law for bringing this case to my attention.

A Post-Koken Decision on Consolidation That Goes the Other Way

Butler County Court of Common Pleas Judge Marilyn J. Horan issued a November 5, 2009 Opinion and Order in the post-Koken case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., A.D. 09-11444 (Butler Co. Nov. 5, 2009) that goes against the trend of a number of recent trial court opinions from around the Commonwealth of Pennsylvania allowing third party claims against the tortfeasor to proceed in a consolidated fashion with the UIM claim under one lawsuit.

The case of Baptiste arose out of a motor vehicle accident during which a DUI defendant lost control of her vehicle, crossed the center line, and crashed into the plaintiff's vehicle. The plaintiffs sued the defendant driver and the owner of the defendant vehicle under a negligent entrustment claim. The plaintiff also named her own automobile insurance carrier, State Farm, in the lawsuit as a defendant on the plaintiff's underinsured motorists (UIM) claim.

In Baptiste, the court granted preliminary objections filed by State Farm against the Complaint under Pa.R.C.P. 1028(a)(5), "misjoinder of a cause of action."

In so ruling, the court in Baptiste did not cite or review any of the number of prior trial court opinions from around the Commonwealth that have essentially all held that a third party claim and a UIM claim can and should be consolidated under one caption. For a review of those decisions, you can go down the right hand column of this blog to the "Labels" section and click on "Koken."

Also, it appears that post-Koken State Farm automobile insurance policies have a provision in it that not only requires that the UIM claim be pursued by way of a lawsuit as opposed to an arbitration, but also requires that the UIM claim be joined with the claim against the third party tortfeasor under one caption. No mention was made by the Baptiste court as to whether the State Farm policy at issue in this matter had such a clause.

In any event, State Farm argued that it was improperly joined in the plaintiff's complaint and asked that the counts of the Complaint against State Farm on the UIM claim should be severed for purposes of the trial. State Farm also requested that the UIM claim be stayed pending the resolution of the third party negligence action.

In granting State Farm's preliminary objections, the court accepted State Farm's argument that keeping an insurance company in as a defendant in a negligence action against a tortfeasor would violate Pennsylvania Rule of Evidence 411, which generally precludes the admission of evidence of insurance in civil litigation matters.

More specifically, although Rule of Evidence 411 allows the admission of evidence of insurance for certain limited purposes such as to show agency, ownership, control, or bias or prejudice of a witness, the Baptiste court stated that there was no "other purpose" under which Rule 411 would support the admission of UIM insurance issues in the third party negligence portion of the claim. Stated otherwise, the trial court noted that "the issue of UIM insurance in the claim against State Farm bears no relation to the determination of the negligence cause of action between Plaintiffs and Defendant, Strobel."

The court also noted that, even if the insurance evidence was relevant to the negligence portion of the lawsuit, such evidence would still be inadmissible under Pennsylvania Rule of Evidence 403 which allows a court to exclude evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The trial court felt that the inclusion of insurance evidence in the negligence portion of the case would "yield minimal, if any, probative value in comparison to the potential for undue prejudice" to the tortfeasor defendant.

Prior trial court decisions in other counties have ruled in favor of the joinder of these types of actions under Pa.R.C.P. 213, pertaining to the consolidation of actions arising out of the same transaction or occurrence. It does not appear that the plaintiff made such an argument in opposition to the preliminary objections in this matter.

The plaintiff did make an argument for the permissive joinder of claims under the similar Pa.R.C.P. 2229(c), which argument was also rejected by the Butler County Court of Common Pleas in Baptiste. The court again indicated that the joinder of these claims would improperly inject irrelevant and prejudicial insurance issues in the negligence portion of the case against the tortfeasors. The court felt that, even though the severance would require a second trial on the same issues of liability and damages, undue prejudice would be avoided by severing the cases into two separate matters.

In so ruling the trial court rejected the plaintiff's arguments in favor of judicial economy and the goal of avoiding inconsistent verdicts. The trial court felt that the consideration of whether the joinder would interfere with the just determination of the matter for all parties was a higher priority.

Last but not least, the trial court noted its power to sever and order separate trials where warranted under Pa.R.C.P. 213(b). The court reiterated its opinion that "where joinder presents the potential for undue prejudice, [judicial] economy and inconvenience must yield to fairness for all parties."

Accordingly, the court felt that severance of the third party liability claims from the UIM claim was appropriate and, consequently, the court granted State Farm's preliminary objections. The UIM claims were severed and stayed pending the resolution of the third party liability negligence claims.

To date, there have not been any appellate court opinions on this consolidation issue. It is unlikely that any appellate decisions will be forthcoming in the near future as such issues are not readily appealable at such early stages in the litigation. As such, litigators will have to continue to rely upon the trial court opinions out there to convince the court they are before at the time the issue arises in their own case.


Anyone desiring a copy of this opinion may contact me at dancummins@comcast.net.


I thank Dave Cole, Esquire of the Pennsylvania Defense Institute for bringing this case to my attention.

Saturday, November 7, 2009

Amicus Curiae Brief on Discoverability of Plaintiff's Prior Mental Health Records

As noted previously in this blog, I authored an amicus curiae Brief at the request of the Pennsylvania Defense Institute on the issue pending before the Pennsylvania Superior Court of whether a plaintiff's prior mental health records are discoverable when the plaintiff alleges emotional distress and mental anguish claims in a personal injury matter.

Philadelphia Court of Common Pleas Judge Allan L. Tereshko ruled that such evidence was indeed discoverable in the case of Gormley v. Edgar and the plaintiff took the issue up on appeal. Briefs have been submitted and the parties await an argument date from the Superior Court.

For the amicus defense position on this all-important issue, asserting that such evidence is discoverable as ruled by the trial court judge, you can view the amicus curiae Brief by clicking on the following link:

http://www.jdsupra.com/post/documentViewer.aspx?fid=d6e1dc5d-d0de-4c33-bbd3-899332af58ee

Thursday, November 5, 2009

2009 Luzerne County Bench Bar Conference

I presented a one hour 2009 Civil Litigation Update at the November 5, 2009 Luzerne County Bench Bar Conference. This was the same presentation I gave at last month's Lackawanna County Bench Bar Conference.

The Luzerne County Bench Bar Conference was well attended and there seemed to be an atmosphere that the court was continuing to take slow but sure steps forward towards a return to normalcy and away from bad news of the past year.

Anyone who may wish to secure a copy of my 2009 Civil Litigation Update materials, may click on the title "2009 Civil Litigation Update" in the JDSupra box in the right hand column of this blog (down a little bit). In the alternative, you can click on this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=91d6c7bb-2b76-46c6-8166-d3a3bf91b740.

Please feel free to print out the update for your own use. The update is about 140 pages long and covers important cases and trends in auto law, premises liability, expert issues, evidentiary issues, etc. Also included in the materials are some articles of mine that have appeared in the Pennsylvania Law Weekly, on such issues as the of the status of the assumption of risk doctrine and the seat belt defense in Pennsylvania.

There are even articles in the materials that provide a concise summary of the important cases from 2008. So, essentially, a review of this update should leave you well-versed on many of the important cases and issues in Pennsylvania civil litigation arising over the past two years.

I invite anyone having any questions or comments on any of the issues in the Civil Litigation Update to contact me to discuss--I would appreciate learning of any more recent developments and/or helping you out further if I can.

As for any Pennsylvania insurance company representatives viewing this blog, please note that I am willing to present the hour long powerpoint Civil Litigation Update in your office free of charge (excepting any necessary and reasonable travel expenses of course). Please contact me at dancummins@comcast.net for any requests in this regard. Thank you.

Wednesday, November 4, 2009

New Trial Court Post-Koken Decision

In the case of Jocelynn Gingrich v Esurance Inc., Esurance Services, Inc., Esurance Insurance Company, Tyrone Brown and Susan Graci, No.08795 CV 2009 CV Dauphin County Common Pleas, Motorists Insurance filed preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption. Motorists was the tortfeasor's carrier and sought to sever the claims.

Dauphin County Judge Todd Hoover by Order dated Nov. 2, 2009 denied the preliminary objections. I do not have a copy of that Order but I am sure one can be obtained by contacting the Dauphin County Prothonotary's office.

I thank Attorney Paul Oven for bringing this case to my attention.

Northeastern Pennsylvania Trial Lawyers Association Holiday Happy Hour - November 19, 2009

Northeastern Pennsylvania Trial Lawyers Association is hosting a

Holiday Happy Hour

Thursday November 19, 2009
5:30pm to 7:30pm
Mohegan Sun at Pocono Downs
(in their Party Room)
Wilkes-Barre, PA

RSVP by November 12
to Dan Cummins
570-346-0745
dancummins@comcast.net

Members: Free
Non-Members/Guests: $25

2009 Luzerne County Bench Bar Conference

I have put together and will be presenting a 2009 Civil Litigation update at tomorrow's (11/5/09) Luzerne County Bench Bar Conference. I will cover the important cases and trends in auto law and premises liability cases, as well as products liability and medical malpractice matters. Last years important cases on evidentiary issues, expert witnesses, and procedural matters will also be covered in a one hour presentation.

The Conference is set to take place at Genetti's Hotel and Conference Center in Wilkes-Barre, Pennsylvania from 8 a.m. to 2 p.m. The cost is $50.00 a person, which includes lunch. Attendees can earn 3 substantive and 1 ethics credits towards their annual CLE requirements.

I thank Joe Cardoni of Exhibit "A" for assisting me in creating a hopefully entertaining powerpoint presentation and also thank him for agreeing to assist in the playback at the seminar. I highly recommend the services of Exhibit"A" in terms of preparing an excellent presentation of your case for trial. For more information on their services, which are offered in Philadelphia as well as Northeastern Pennsylvania (and New Jersey) go to www.exhibitadigital.com

Judicial Election Results Across Northeastern Pennsylvania

The Judicial Election results from across Northeastern Pennsylvania brought some surprises in some spots and met expectations in other areas.

Luzerne County

In Luzerne County, the voters elected not to retain Judge Peter Paul Olszewski, Jr. for a second 10 year term as he fell victim to the ongoing negative publicity surrounding the scandal involving former Judges Michael T. Conahan and Mark A. Ciavarella. A candidate for judicial retention is required to receive 50 percent yes votes; Judge Olsewski only secured 44.5 percent of the vote.

Meanwhile, the other Luzerne County Judge up for retention, Judge Thomas F. Burke, Jr., received 61.6 percent "yes" votes and was thereby retained to another ten year term.

In terms of new Judges being elected to the bench in Luzerne County, William Amesbury and Tina Polacheck-Gartley prevailed.

With the loss of Olszewski from the bench, there are three open seats--Olszewski's seat to be vacated in January, the seat vacated by former Judge Ciavarella, and the seat that is being held open while Judge Lokuta continues her fight in the Court of Judicial Discipline.

Hopefully, the Pennsylvania Legislature and the Governor will work swiftly to allow for an appointment to fill at least two of those seats so that the Luzerne County court system can continue to make forward steps to restoring confidence and moving its caseload ahead. I note that, currently, the trial backlog in that county is over a year.

Lackawanna County

In neighboring Lackawanna County, Judge Terrence R. Nealon and Judge Michael J. Barrasse, easily secured the necessary "yes" vote for each of them to be retained for another 10 year term.

In terms of the election to fill the open spot on the Lackawanna County Bench, Margie Bisignani-Moyle easily defeated her opponent.

The word is that Judge Bisignani-Moyle will begin her term in the family court. This is unfortunate as the civil division could use another judge to help ease the current trial backlog which, as in Luzerne County, is over a year. However, situations and positions change and, given her experience in the criminal courts (she's a former assistant district attorney) and in civil matters, perhaps Judge Bisignani-Moyle could someday go on to substantially serve in those arenas as well.

Wyoming/Sullivan Counties

District Judge Russell Shurtleff won the election for Judge of Wyoming/Sullivan Counties (one judge covers both counties). He is replacing retiring Judge Brendan Vanston.

Monroe County

In Monroe County, Judge Maggie Worthington easily secured the necessary "yes" vote to be retained for another 10 year terms as a court of common pleas judge.

Also, Jennifer Harlacher Sibum, running unopposed after having secured a victory on both sides, Republican and Democrat, in the primary, was elected to the Court of Common Pleas. Judge Sibum will be replacing retiring Judge Jerome Cheslock.

Carbon County

Palmerton attorney Steve Serfass was elected Carbon County's third judge in yesterday's election.

Northampton County

Previously appointed Judge Leonard Zito, District Judge Michael Koury, Jr., and state lawmaker Craig Dally were elected to the bench in Northampton County.


Other Judicial Elections

According to this morning's local newspapers, Republican Joan Orie Melvin has defeated Democrat Jack Panella in the election for a new Supreme Court Judge. Judge Melvin's win restores a one-seat majority for the GOP on that bench.

In the Commonwealth Court of Pennsylvania, Pittsburgh lawyer Patricia McCullough and Harrisburg lawyer Kevin Brobson were victorious.

In the Pennsylvania Superior Court, as of this morning it was being reported that Allegheny County Judge Judy Olsen and Tioga County lawyer Sallie Mundy both prevailed. However, elections for two other seats on that bench were too close to call.


For more background on the winning Judges, I suggest going to their individual campaign websites. Anyone desiring any additional information, please feel free to contact me and I can tell you what I know of the background of some of these candidates that I have worked with before.

Tuesday, November 3, 2009

Over 150 Subscribers!! THANKS VERY MUCH

I recently went over 150 in terms of the number of email subscribers to Tort Talk. I thank all subscribers very much for signing up and I hope that you are continuing to benefit and learn from this blog.

As I noted in my first blog entry six (6) months ago back on May 4, 2009, the purpose of my blog is to highlight trends and note important decisions in Pennsylvania civil litigation law. I also intended to periodically attempt to offer practice tips from my own experiences in the practice of law. This blog is also intended to bring to the attention of others little heard developments or verdicts occurring in the courts in the counties that make up Northeastern Pennsylvania.

For those of you who may not know me, please allow me to briefly introduce myself. I am a partner in the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins. I have about 15 years of experience, all primarily in the insurance defense field. I have focused my practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases. Please feel free to click on the Links in the right hand column of this blog for any more detailed background information on myself or my firm.

Please also feel free to contact me at dancummins@comcast.net to introduce yourself to me and/or to discuss any of the issues raised here in Tort Talk. I would love to hear from you to also get some feedback on the blog. Drop me a line in terms of what you like (or don't like) or what you may like to see on the blog in the future.

If you have a profile on LinkedIn.com, I invite you to connect with me. My profile can be viewed at www.linkedin.com/in/danielcummins

I thank all of the subscribers very much and would appreciate it if you would continue to spread the word on the blog. It is because of you that I have been able to get over 150 subscribers and I hope to continue to have ongoing content good enough to keep your interest and convince you to refer others to this site.

In the meantime, I will keep writing/blogging...I knew being an English major would come in handy someday!

Monday, November 2, 2009

Latest Pennsylvania Law Weekly Article - "You'd Better Watch Your Step"

My latest article, entitled "You'd Better Watch Your Step: Premises liability defendants are having a banner year in Pennsylvania courts," appeared in the Pennsylvania Law Weekly last week. The article reviewed a number of defense-oriented decisions from across the Commonwealth of Pennsylvania in premises liability cases.

That article, as well as other articles of mine, can be viewed under my profile on JDSupra at http://www.jdsupra.com/profile/danielcummins.

This particular article on the premises liability cases can be found by clicking this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.

Also, continuing the trend of recent cases in favor of Defendant landowners, the Beaver County Court of Common Pleas issued an opinion in Orlowski v. Magg’s, Inc., PICS Case No. 09-1822(C.P. Beaver Oct. 27, 2009, Kwidis, J.) granting summary judgment in favor of a bowling alley in a trip and fall case.

Relying upon the rule that a person has a duty to look where he or she is walking and see that which is obvious, the court granted summary judgment to the defendant in a case where a plaintiff tripped over the step separating the bowling alley floor from the bathroom floor, which was slightly higher.

The court was impressed by the fact that the step was painted bright yellow against the dark carpet of the bowling alley floor and the beige ceramic tile bathroom floor. Also there was a "Watch Your Step" sign posted outside of the restroom. Furthermore, during her deposition, the plaintiff admitted that she was not watching where she was going.

Judge Kwidis of the Beaver County Court of Common Pleas found that the plaintiff had a duty to watch where she was going and that the landowner had no duty is owed to protect invitees from open and obvious dangers. He also relied upon the Pennsylvania cases holding that a mere difference in elevation or doorstops were not deemed to be dangerous conditions.

A copy of this case can be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and giving the above PICS number.


My firm and I continue to handle premises liability cases (as well as auto accident matters) all across Northeastern Pennsylvania. Please feel free to contact me at dancummins@comcast.net should I be able to assist you in any regard with such matters.