Tuesday, November 30, 2010

PennDOT Not Liable for Shoulder of Roadway

In the recent case of Lambert v. Katz, 2010 W.L. 4596319 (Pa. Cmwlth. November 15, 2010), PICS No. 10-3481 the Commonwealth Court affirmed the Berks County trial court’s entry of summary judgment in favor of PennDOT in a claim involving the deaths of a motorist and a passenger following an accident where the motorist skidded out of control, crossed over guard rails, struck a tree, and slid down an embankment.

In reaching its decision, the Commonwealth Court held that allegedly out-dated guard rails and the Department’s alleged failure to maintain them did not create a dangerous condition on Commonwealth real estate so as to come within the real estate exception to sovereign immunity.

The Court also held that PennDOT did not have any duty to widen the shoulder. The Plaintiffs have presented an expert report which asserted that the motorist possibly would have been able to recover from losing control of his vehicle had the shoulder of the roadway been 10 feet wide.

Although the court agreed that PennDOT had a duty to design and construct roadways in a manner that is safe for their intended and reasonably foreseeable purposes, the Court concluded that, since the shoulder of a highway is not an area on which vehicles are intended to travel, PennDOT could not be held liable in this matter for allegedly failing to construct a wider shoulder.

A copy of this case can be secured from the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above-noted PICS number.

Source “Commonwealth Court: Highway Shoulders Not Part of ‘Roadway’” by Leo Strupczewski. The Legal Intelligencer (November 23, 2010).

Another Multi-Million Verdict by Ciavarella Overturned

In what has been described as a "sharply worded" opinion, the Pennsylvania Superior Court has handed down a decision overturning a $3.4 million dollar legal malpractice jury verdict that former Judge Mark A. Ciavarella entered in favor of a client of attorney Robert J. Powell based, in part, on ties between the two that amounted to "judicial impropriety."

Here's a link to an article on the decision from today's Citizen's Voice:


Here is a link to the Superior Court's Opinion in the case of Slusser v. Laputka, Bayless, Ecker & Cohn, P.C. et al., 2010 Pa.Super. 210 (Pa.Super. Nov. 29, 2010, Allen, Mundy, Colville, JJ.)(Opinion by Colville, J.):


This case is the second case handled by Ciavarella that is being sent back for a new trial. In November 2009, the Pennsylvania Supreme Court overturned a $3.5 million verdict Ciavarella issued in the non-jury trial of Thomas Joseph vs. The Citizens’ Voice newspaper based upon evidence the case had been improperly steered to Ciavarella. That case remains pending in the Luzerne County Court of Common Pleas.

Judge Correale Stevens Elected President Judge of Pennsylvania Superior Court

Earlier this month, Judge Correale F. Stevens, who hails from Northeastern Pennsylvania, was elected President Judge of the Superior Court. Among his plans as President Judge is to arrange for a Superior Court argument day to take place at Temple Law School and the Dickinson School of Law in 2011 for educational purposes.

Source: "Elected to Lead Superior Court, Stevens Focuses on Communication" by Leo Strupczewski, The Legal Intelligencer, November 30, 2010.

Pennsylvania Supreme Court to Consider Payment of Prorated Deductibles in Property Damage Subrogation Cases

The Pennsylvania Supreme Court has granted allocatur in the case of Jones v. Nationwide Property and Casualty Insurance Company, 2010 WL 4643224 (Pa. Nov. 17, 2010), on the issue of whether a car insurer can repay only a prorated portion of an insured's deductible when recouping expenses through subrogation from a third party at fault. The Court more specifically framed the questions presented, as follows:

AND NOW, this 17th day of November 2010, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner are: (1) Does Pennsylvania law require that a party suffering damages be made whole before an insurer is entitled to subrogation? (2) Does the Pennsylvania Insurance Commissioner have the authority to promulgate a regulation regarding allocation of subrogation proceeds between an insurance company and its insured following subrogation recovery? (3) Is the Pennsylvania Insurance Commissioner's regulation allowing insurers to allocate subrogation proceeds on a pro rata basis void because it violates Pennsylvania substantive common law, the “made whole” doctrine? 

  Source: "State Supreme Court Takes Case on Prorating Dedectibles" by Amaris Elliott-Engel, The Legal Intelligencer, November 30, 2010.

New Jurisdictional Limit ($12,000) for District Magistrate Civil Matters

Governor Rendell signed HB 2172 on November 23, 2010. This bill raises the jurisdictional limits of magisterial district courts from $8,000.00 to $12,000.00 in civil cases, exclusive of interest and costs. As in the past, a Plaintiff may waive that much of his/her claim to bring the case into the district magistrate court, but will not be limited to that amount on appeal should a defendant appeal.

It is believed that this new jurisdictional limit goes into effect in 60 days, i.e. around January 22, 2011.

I send thanks to District Magistrate Justice James A. Gibbons, Esquire of Clarks Summit, Pennsylvania for this tip.

Sunday, November 28, 2010

Revisions to Fed.R.C.P. 26 Go Into Effect on December 1st

Revisions to Rule 26 of the Federal Rules of Civil Procedure take effect on December 1, 2010, resulting in a significant change in the long-standing federal court procedure regarding the discovery of expert witness reports.

After December 1, Rule 26 will no longer require full discovery of draft expert reports or broad disclosure of any communications between trial counsel and the expert, all of which was previously required since the Rule’s last revision back in 1993.

Under the new Rule, these types of communications will now come under the protection of the work-product doctrine. The new Rule will prohibit discovery of draft expert reports and limit discovery of attorney-expert communications. Still permitted is the full discovery of the expert’s final opinion and of the facts or data used to support the opinions.

It is noted that this same issue is still under review in the state appellate court here in the Commonwealth of Pennsylvania with the recently allowed re-argument en banc of the case of Barrick v. Holy Spirit Hospital.

The first time around, the Pennsylvania Superior Court ruled that attorney-expert communications were discoverable--that decision has been withdrawn as the full Superior Court prepares to address the issue again at a date still to be determined. I will again present the amicus curiae position of the Pennsylvania Defense Institute on this all-important issue. Stay tuned for more updates here on Tort Talk.

Saturday, November 27, 2010

Need CLE Credits? Auto Law Seminar This Thursday (12/2/10)


presents an




9 a.m. to 1:30 pm


On Thursday, December 2, 2010, I will be participating as a presenter of a Post-Koken Update at a CLE Seminar being put on by the Pennsylvania Association for Justice (PAJ) at the Hilton Scranton Hotel and Conference Center on Adams Avenue in Scranton, Pennsylvania from 9 a.m. to 1:30 p.m. The seminar offers 4 credits (3 Substantive & 1 Ethics).

Neil O'Donnell is serving as the course planner and will be joined by myself, Bill Anzalone, Richard Fine, James Gibbons, Carl Guagliardo, Lucille Marsh, Judge Joseph Musto, Jeffrey Pollock, Joe Price, Roger Roggenbaum, Joe Burke.

Judge Joseph J. Van Jura, of the Luzerne County Court of Common Pleas, will also serve as a presenter from the bench.

The program will cover Post-Koken issues, the Top 2010 Auto Law Cases, Lien issues, insight into the thoughts of the arbitrators and mediators who hear cases, and a "View from the Bench."

Click on the following to register:


You may also call the Pennsylvania Association for Justice at 215 546-6451 to register.

Monday, November 22, 2010


I send Happy Thanksgiving greetings to all Tort Talkers. I am grateful for all of the readers, email subscribers and contributors to Tort Talk and I send to you my great THANKS! I hope you have a nice, long holiday weekend. Sincerely, Dan Cummins

Source of Photo: Image: Paul / FreeDigitalPhotos.net

Re-Argument En Banc Granted in Barrick v. Holy Spirit Hosptal

BREAKING NEWS: The Pennsylvania Superior Court has issued an Order granting re-argument en banc in the case of Barrick v. Holy Spirit Hospital, 5 A.3rd 404 (Pa.Super. 2010).

You may recall that this was the case in which the Superior Court held that Plaintiff's counsel must turn over, in discovery, their letters to their medical experts pertaining to the expert's formulation of his or her opinion for trial.

For more details to the Superior Court's original decision, click this link to my former blog post on the matter:


Friday, November 19, 2010

New Atlantic Second Citation for Important UIM Case

Here's the recently published citation to a the recent important UIM case of D'Adamo v. Erie Ins. Exchange, 4 A.3d 1090 (Pa.Super. 2010)(UIM carrier was entitled to credit on arbitration awards to injured parties in the amount of the tortfeasor's personal umbrella policy).

New Superior Court Case Regarding Naming Medicare on Settlement Drafts

In its recent November 17, 2010 decision on an appeal from a Luzerne County case, the Pennsylvania Superior Court addressed the issue of naming Medicare on settlement checks in the case of Zaleppa v. Seiwell, 2010 Pa.Super. 208 (Pa.Super. Nov. 17, 2010, Allen, Mundy, and Colville, JJ.).

At trial, the Plaintiff had obtained a $15,000.00 jury verdict against the Defendants, $5,000 of which was for future medical expenses and the remainder of which was for pain and suffering.

On post-trial motions, the Defendants argued that the trial court erred in denying the Defendants' request that the court enter an Order directing the Defendants to pay the verdict either (1) by naming Medicare, along with the Plaintiff and her attorneys, as payees on the check satisfying the verdict, or (2) by paying the verdict into court pending notification from Medicare that all outstanding Medicare liens had been satisfied.

In its Opinion, the Superior Court noted that the Plaintiff was 69 years of age at the time of the car accident that was the subject of this litigation. However, there was no evidence presented at the trial court level that any of the Plaintiffs' past medical treatment had been paid by Medicare to date. The Superior Court additionally noted that there was no claim presented for any past medical expenses by the Plaintiff because she was precluded from doing so by 75 Pa.C.S.A. 1722 in that the first party medical benefits under her own automobile insurance policy had not been exhausted. The Zaleppa Court further emphasized that the jury did not enter any award for past medical expenses.

The Superior Court held that there was no legal basis under either federal or Pennsylvania law to assert the interests of the United States government as to the reimbursement of Medicare liens. As such, the Superior Court held that the trial court properly denied the Defendants' request in this regard.

It is noted that the Superior Court does a nice analysis of a defendant's (and arguably a plaintiff's) obligations under the Medicare Secondary Payer Act (MSPA). To review this Opinion, click on this link:


I was made aware of this recent, important decision by Attorney Ron Marrero, of Robert J. Casey & Associates (State Farm house counsel, Philadelphia) and I send a "thanks" his way..

Tuesday, November 16, 2010

Medicare Reporting Deadline Postponed - Again

I have obtained permission to re-publish this November 16, 2010 blog post on the Medicare reporting requirements by Dave Walk, Esquire from the Drug and Device Law Blog as a guest post here. Attorney Walk provided this update:

We have reported to you occasionally, but not consistently or reliably or intelligibly, about the new obligation of product liability defendants and others to report settlements and other payments on personal injury claims to Medicare authorities. See, for example, our posts titled Boring Stuff We Need to Know and More Boring Stuff We Need to Know. The reporting obligation has been extended several times and was scheduled to kick in starting on January 1, 2011 – an extension we did not tell you about. We told you we are not reliable chroniclers of boring stuff. What can we say? We'd rather write about preemption or Daubert or TwIqbal.

Last week, the Centers for Medicare & Medicaid Services, which goes by the confusing acronym CMS instead of the more logical CMMS, announced that the reporting deadline for some but not all entities and some but not all settlements has been postponed for one full year. The CMS alert states: “The required submission of liability insurance (including self-insurance) initial claim reports has been changed from the first calendar quarter of 2011 to the first calendar quarter of 2012 for all liability insurance (including self-insurance) TPOC amounts with no ORM involvement. Liability insurance (including self-insurance) ORM reporting is not subject to this delay.”

We speak bureaucratese about as well as we speak jive (R.I.P., Barbara Billingsley). Here is a rough translation: The deadline for reporting personal injury settlements and other payment obligations (that’s TPOC) has been extended for one year, until the quarter starting January 1, 2012, but only for settlements or other payments paid by liability insurance or the defendant itself (that’s self-insurance) and not for no-fault insurance and workers’ compensation. The extension does not apply to settlements or other payment obligations that include an ongoing responsibility for paying the injured party’s medical bills (that’s ORM).

This is complicated stuff that is very important to our clients, so if you have an issue in this area, please read the CMS alert and consult with professional translators of CMS bureaucratese.

Posted By David Walk to Drug and Device Law at 11/16/2010 01:23:00 PM

The Drug and Device Law blog can be accessed by clicking on this link:


Friday, November 12, 2010

2011 Annual Supplement to Pennsylvania Trial Advocacy Handbook Released

I am pleased and proud to announce that the 2011 Supplement to the Pennsylvania Trial Advocacy Handbook I authored has been released by the George T. Bisel Co., Inc.

On the dedication page, I dedicated this volume "To my good friend, William G. Rice, Esquire (1961-2010)."

Anyone who may wish to purchase this treatise may contact the George T. Bisel Co., Inc. at 710 S. Washington Square, Philadelphia, PA 19106-3591, (215) 922-5760, (800) 247-3526, or by email at gbisel@bisel.com.

For full disclosure purposes, I note that I am entitled to receive a small royalty for each book sold to a new subscriber.

Thursday, November 11, 2010

Next Thursday (Nov. 18, 2010) - Holiday Happy Hour

The Northeast Pennsylvania
Trial Lawyers Association

is hosting a

Holiday Happy Hour

Thursday, November 18, 2010
5:30pm to 7:30pm


Bar Louie
Mohegan Sun at Pocono Downs
Wilkes-Barre, PA

RSVP by November 12
to Dan Cummins

Members: FREE
Non-Members/Guests: $25

Make check out to "Northeastern Pennsylvania Trial Lawyers Assocation"
and send to:

Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503

Further Nationwide Exposure for Tort Talk

I have been requested by the PLRB/LIRB, a national group designed to assist and educate those working in the liability insurance claims field, to serve as their "go-to" person for updates on important cases and trends in Pennsylvania civil litigation law.

The updates I provide to them on Pennsylvania law will be sent out by email to over 30,000 claims professionals, from CEO's and Claims Vice Presidents to the frontline claims handlers as well as being posted on the PLRB/LIRB website at http://www.plrb.org/.

Upcoming Auto Law CLE Seminar of Note

On Thursday, December 2, 2010, I will be participating as a presenter of a Post-Koken Update at a CLE Seminar being put on by the Pennsylvania Association for Justice (PAJ) at the Hilton Scranton Hotel and Conference Center on Adams Avenue in Scranton, Pennsylvania from 9 a.m. to 1:30 p.m. The seminar offers 4 credits (3 Substantive & 1 Ethics).

Neil O'Donnell is serving as the course planner and will be joined by myself, Bill Anzalone, Richard Fine, James Gibbons, Carl Guagliardo, Lucille Marsh, Judge Joseph Musto, Jeffrey Pollock, Joe Price, Roger Roggenbaum, Joe Burke.

Judge Joseph J. Van Jura, of the Luzerne County Court of Common Pleas, will also serve as a presenter from the bench.

The program will cover Post-Koken issues, the Top 2010 Auto Law Cases, Lien issues, insight into the thoughts of the arbitrators and mediators who hear cases, and a "View from the Bench."

Click on the following to register:


You may also call the Pennsylvania Association for Justice at 215 546-6451 to register.

Products Liability Claim For Faulty Construction of a Building Rejected

In the case of Cooper v. Gerald W. Erdley General Contracting, et.al., No. 09-Civil-0478 (Union Co. Oct. 21, 2010, Sholley, J.), Judge Michael H. Sholley addressed the issue of whether or not a products liability claim can be asserted in a matter arising from the property losses sustained by Plaintiffs incident through the destruction by fire of their home, garage, and personal property.

The case became before the Court by way of Preliminary Objections by the general contractor Defendant. The Plaintiffs were attempting to assert a cause of action in strict/products liability against the contractor under allegations that the contractor was strictly liable for producing the subject premises in a defective condition. More specifically, it was alleged that the contractor failed to install fire/rated sheet rock or drywall in the common wall adjacent to the living space in the residence and the garage such that a fire in the garage would not have spread to the home.

The Defendant contractor objected to the Plaintiff’s cause of action based upon §402A of the Restatement (Second) Torts on the grounds that the contractor was not a “seller” nor was the constructed residence a “product” as contemplated by the strict products liability law.

The trial court noted that they were unaware of any Supreme Court decision directly addressing the issue of whether a deficient construction of a home could give rise to a products liability claim. However, in the Superior Court case of Cox v. Shaffer, 302 A.2d 456 (Pa. Super. 1973), the Superior Court stated that a constructed building is not a product within the intent and meaning of §402A. The trial court in this matter noted that its research revealed that Cox v. Shaffer remained good law (other citations omitted).

In so ruling, the trial court in Cooper did also acknowledge the Plaintiff’s reliance on Judge William J. Nealon’s Federal Court Opinion in which Judge Nealon predicted in Bednarski v. Hideout Homes & Realty, Inc., 711 F. Supp. 823 (M.D. Pa. 1989), that the Pennsylvania Supreme Court may decide that builders may be held liable under §402A. However, the Cooper court noted that the federal court’s decision in Bednarski was not binding precedent.

As such, the trial court in Cooper dismissed the strict liability claim in this context.

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

Schuylkill County Decision by Judge Russell in favor of Severance of Post-Koken Claims

In what appears to a be case of first impression in that county, Judge Jacqueline L. Russell of the Schuylkill County Court of Common Pleas entered a November 5, 2010 Order sustained the Preliminary Objections of the tortfeasor Defendant in the post-Koken case of Corridoni v. Temple and MetLife Auto & Home et.al., No. S-1470-2010 (Schuylkill Co. Nov. 5, 2010, Russell, J.), severing the claims against the tortfeasor from the claims asserted against the insurance company Defendants for UIM benefits.

In her Order, Judge Russell stated that “[t]his Court does not find it appropriate to allow Plaintiff’s tort cause of action in negligence against [the tortfeasors] to be joined in the same Complaint with Plaintiff’s claims that he is entitled to damages in contract against his insurer(s) relative to the alleged underinsured status of Temple.” [bracket inserted].

The judge also noted that, with respect to the Plaintiff’s argument that a severance of the claims would result in a duplication of litigation efforts, the Court anticipated that the parties would be able to cooperate to avoid such duplicative efforts. Judge Russell further noted that, if the parties were not able to cooperate in this regard, the Court, upon proper motion, may direct the consolidation of the separate actions for discovery purposes.

Judge Russell further ordered that the Plaintiff should file an Amended Complaint on the claims against the tortfeasor under one docket number and should file a separate Complaint against the insurance company Defendants under a second docket number, with all costs to be paid for by the Plaintiffs.

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

I thank the prevailing defense attorney, Joseph F. Murphy, of the Harrisburg office of Forry Ullman for forwarding this case to my attention.

I will update the Post-Koken Scorecard in the near future to add the recent cases noted.

Wednesday, November 10, 2010

Million Dollar Jury Verdict Entered in Lackawanna County Trial

Here's a link to a November 10, 2010 article in Scranton's Times-Tribune reporting on a million dollar jury verdict in a Lackawanna County Court of Common Pleas automobile accident personal injury case earlier this week:


Rule 1925 Opinion Issued By Luzerne County Judge Van Jura in Post-Koken Transfer of Venue Case

Tort Talkers may recall reading here that Judge Joseph Van Jura of the Luzerne County Court of Common Pleas recently issued an August 16, 2010 Order in the post-Koken case of Wissinger v. Brady, Laubach, and State Farm, No. 3792-CIVIL-2010 (Luz. Co. Aug. 16, 2010, Van Jura, J.), granting the Preliminary Objections of a third party defendant asserting improper venue under Pa. R.C.P. 1006.

I have secured a copy of the Judge's Rule 1925 Opinion issued in this matter now that the case is going up on appeal.

The plaintiff involved in this matter was from Northumberland County. The accident occurred in Northumberland County. The tortfeasor defendants were from Montour County. Under Pennsylvania's venue Rule (Rule 1006), it would appear that venue in this matter was proper at least in the place where the accident happened or where the tortfeasor resided or could be served.

According to Judge Van Jura's Opinion, the plaintiff was arguing that suit could be filed in Luzerne County on account of the fact that State Farm did business in that county.

The Court rejected this argument and also noted that there was no joint and several liability between the third party defendant and the UIM carrier to otherwise support venue in Luzerne County.

I thank the prevailing defense attorney, Aaron Decker from the Plains, Pennsylvania office of Snyder & Associates, in-house counsel for Nationwide, for forwarding this Opinion to my attention.

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

Tuesday, November 9, 2010

New Westlaw Citation for Recent Social Media Discovery Case

Tort Talkers may recall that I recently highlighted the case of McMillen v. Hummingbird Speedway, Inc., PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), in which Jefferson County President Judge Foradora held that where a person’s social networking sites contain information that may be relevant to the claims or defenses presented in a personal injury lawsuit, access to those sites during discovery should be freely granted.

I have just learned that this case has been given a Westlaw citation. Here it is: 2010 WL 4403285 (Jefferson Co. 2010).

I thank Attorney James Beck of the Philadelphia law firm of Dechert, LLP for securing and providing this citation from Westlaw. Consider visiting Attorney Beck's blog, the Drug and Device Law Blog at http://druganddevicelaw.blogspot.com/ , which, in my opinion, is the best of its kind on that topic.

Monday, November 8, 2010

Consider Claiming Your Online Attorney Profile at Avvo.com

I have added a link down on the right-hand column of Tort Talk to enable you, if you'd like, to claim your online profile on the Avvo.com website. Scroll down on the right hand column of this blog and click on "Claim your FREE profile today" and you will be sent to the site.

Avvo.com has created a basic online attorney profile for every attorney who is listed as a licensed attorney in any state. Your profile is there for you to claim and update and expand with more pertinent background information. It's easy to do too.

The claiming and expanding of your profile is FREE. There are ways, of course, of using the additional Avvo.com website services for a fee, but the basic, ongoing usage of the site and continuing updating of your profile is FREE.

I have claimed and updated my profile for FREE as a means of increasing my online exposure. I figure the more online exposure an attorney has, the more likely that attorney is going to appear at the top of a Google search by a potential client for an attorney in your area.

For full disclosure purposes, I note that Avvo.com has agreed to pay me a small fee on a cost-per-action (CPA) basis for every profile claimed.

Sunday, November 7, 2010

Superior Court Reaffirms No Stacking of First Party Benefits

In its "non-precedential" Opinion in the case of Rosiecki v. Erie Insurance Exchange, No. 44 MDA 2010 (Pa.Super. 2010, Allen, Mundy, and Colville, JJ.), the Pennsylvania Superior Court essentially reaffirmed the notion that first party benefits can not be stacked in Pennsylvania. See 75 Pa.C.S. Section 1717.

This case of apparent first impression involved a Plaintiff who had been involved in six motor vehicle accidents over the course of her lifetime. She attempted to argue with respect to this matter, arising from her most recent accident, that her injuries from all of the accidents were cumulative and that this matter involved an exacerbation of all of her related injuries such that she should be entitled to recover under her first party wage loss benefits six times over.

On the basis of the evidence presented, the Court rejected this argument by the Plaintiff and accepted Erie's argument that the Plaintiff was only entitled to recover wage loss benefits under the first party wage loss limits implicated by the last accident alone. As such, the Superior Court affirmed the entry of summary judgment in favor of Erie originally haCheck Spellingnded down in the Lackawanna County Court of Common Pleas.

I thank the prevailing defense attorney, Robert T. Panowicz of Panowicz Law Offices in Wilkes-Barre, Pennsylvania, for bringing this decision to my attention.

Anyone desiring a copy of this unpublished, non-precedential decision by the Superior Court in Rosiecki may contact me at dancummins@comcast.net.

Recent Articles Updating Status of Matters in Luzerne County Scandals

Here's a link to a November 3, 2010 article by David Janoski of the Citizens Voice regarding former Judge Michael Toole's guilty plea to accepting an illegal gratuity while on the bench. In the article is an interesting note as to who Toole wishes to subpoena to testify at the hearing on his sentence:


Here is a link to a November 5, 2010 article by Michael R. Sisak of the Citizens Voice reporting that Federal Court Judge Edwin M. Kosik has again denied former Judge Mark A. Ciavarella's request that Judge Kosik recuse himself from Ciavarella's upcoming February of 2011 trial:


Saturday, November 6, 2010

Judge Wetzel of Luzerne County Rules Reserves Information Not Discoverable in Post-Koken Bad Faith Claim

Judge Lewis W. Wetzel in Luzerne County sustained in part and denied in part a UIM carrier's objections to discovery of insurance reserves in the Post-Koken case of Migatulski v. Nationwide, Eberts, et al., No. 7269 - Civil - 2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.) which case involved claims against various tortfeasors along with underinsured motorist benefits and bad faith claims against the UIM carrier. The Court also issued a more recent October 25, 2010 Order denying the Plaintiff's Motion for Reconsideration.

Judge Wetzel granted the Plaintiff's Motion to Compel the UIM carrier to produce a privilege log of documents as well as the work product of the adjusters handling the first party and underinsured motorist claims of the plaintiff. The UIM carrier was permitted by the judge to redact impressions, conclusions or opinions of the adjuster directed to the UIM carrier's defense counsel. The UIM carrier was also allowed to withhold any information deemed to be protected by the attorney-client privilege.

Any information claimed to be privileged for any of these reasons was subject to a further in camera review by the court if requested by the Plaintiff.

The above parts of the Order are consistent with other decisions on the extent of discovery allowed in Post-Koken matters involving bad faith claims. Those decisions may be reviewed in the Post-Koken Scorecard by scrolling down the right hand side of this blog and clicking on the date listed under "Post-Koken Scorecard."

The Judge further ordered the UIM carrier to produce any claims handling manuals pertaining to first party claims and UIM claims. The Order stated that both parties were bound by a previously agreed upon confidentiality clause pertaining to that disclosure.

Judge Wetzel's decision is also notable for his handling of the issue of the Plaintiff's attempt to discover the UIM carrier's reserve information in this context.

In his Order, the judge refused to allow for the discovery of the first party or UIM reserves information. In so ruling, the court relied upon the Superior Court decision of Peco Energy Co. v. Ins. Co. of North America, 852 A.2d 1230 (Pa.Super. 2004), which also held that such information was not discoverable as reserves information kept by carriers was a means by which a carrier, as required by the Pennsylvania Insurance Commissioner, put aside money to cover the potential worse case scenarios of claims in order that the carrier may see what needs to be done to remain solvent as opposed to the reserves being any reflection of the carrier's assessment of the true value of claims presented.

This ruling may come to serve as a roadblock for insureds who try to obtain and use reserve information in an effort to assert that an offer by a carrier on a claim less than than the amount of reserves constitutes a bad faith offer on that claim.

Anyone desiring a copy of the original Order and Reconsideration Order of Judge Wetzel may contact me at dancummins@comcast.net.

I thank Attorneys Charles J. Haddick and Bryon Kaster, both of the Harrisburg, Pennsylvania office of Dickie, McCamey & Chilcote, P.C., for forwarding this decision to my attention. I also note that Attorney Haddick is the writer of the Insurance Coverage and Bad Faith Blog, which can be found at http://thelegalintelligencer.typepad.com/tli/charles-haddick/ .

Transfer of Venue Denied in Phila. County Post-Koken Case

I have been advised of an Order without Opinion by Judge Lisa M. Rau of the Philadelphia County Court of Common Pleas denying transfer of venue in the post-Koken matter of Miscannon v. State Farm, GEICO, and Norris, Term June 2010, No. 003302 (Phila. Co. Nov. 30, 2010, J. Rau) No rationale is stated in the Order.

In this matter the moving party, i.e. the tortfeasor defendants, were not seeking any severance. Rather, the moving party was just seeking to transfer the matter from Philadelphia County to Lancaster County where the tortfeasor defendants lived and where accident occurred.

I was also advised that there was an issue of the preliminary objections being untimely filed in this matter so it is uncertain whether the denial was for procedural reasons or substantive reasons.

Anyone desiring a copy of the Order in Miscannon may contact me at dancummins@comcast.net.

I send thanks to Attorney Susan Weiner of the King of Prussia Law Offices of James L. Barlow for bringing this case to my attention.