Friday, February 26, 2010

United States Supreme Court Adopts Headquarters Test for Diversity Jurisdiction

In its 9-0 decision issued earlier this week on February 23, 2010 in the case of Hertz Corp. v. Friend, the United States Supreme Court addressed the confusion among state courts regarding the appropriate standard to establish a corporate or company defendant's place of business in a diversity case. The Court ruled that a company should be considered a citizen of a state where its “nerve center” is located.

Justice Stephen G. Breyer wrote that "In practice it should normally be the place where the corporation maintains its headquarters."

It is anticipated by legal commentators that the “nerve center” test will be used to establish diversity jurisdiction, allowing more lawsuits to be tried in federal rather than state courts. Thus, it is expected that this decision will serve to hamper forum shopping efforts by plaintiffs.

In this case, the Court rejected arguments by Hertz employees in a wage-and-hour suit that Hertz’s principal place of business was in California, where more of its business activities take place, even though its headquarters is in New Jersey.

In his opinion, Breyer noted that there will still be cases that are difficult to under the “nerve center” test for diversity jurisdiction. “For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet,” he wrote. “That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination.”

The opinion (PDF) of Hertz Corp. v. Friend can be viewed by clicking this link:

Source: Debra Cassens Weiss, ABA Journal Law News Now (Feb. 26, 2010) (citing Reuters and The Wall Street Journal).

Thursday, February 25, 2010

Amicus Brief on Expert Discovery Issue Posted on

I recently noted here that, at the request of the Pennsylvania Defense Institute, I authored an amicus curiae brief on behalf of a defendant in the case of Barrick v. Holy Spirit Hospital which is now up before the Pennsylvania Superior Court.

The appeal involves the expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.

The amicus brief has been filed of record with the Superior Court and we await an argument date. If you are interested and wish to review the brief, you may scroll down the right hand column of this blog and click on "Barrick v. Holy Spirit Hospital" in the box.

Any questions or comments you can click on "comments" at the bottom of this post or contact me at

Wednesday, February 24, 2010

Tort Talk Is Now Available on Amazon Kindle

As you may recall, Tort Talk was recently picked up by Newstex to be syndicated out to their subscribers through Lexis and other sites. I was just advised that Newstex, with Amazon Kindle, is extending Tort Talk into other new technologies, such as e-book reading devices. I was informed that Tort Talk is now available on the Kindle store.

How do Blogs work on the Kindle? Unlike reading blogs on your computer, Kindle blogs are downloaded onto Kindle so you can read them even when you're not wirelessly connected. And unlike RSS readers which often only provide headlines, blogs on Kindle give you full text content and images.

Now any Kindle-owning readers of Tort Talk can subscribe to the blog on the Kindle and take it wherever they go.

Monday, February 22, 2010

Claims Rep Pet Peeves

The following article of mine was accepted for publication by Claims magazine and was published yesterday (2/22/10) as part of the online publication or web magazine. I republish it here, with the permission of the publisher Summit Business Media, for your reading enjoyment.

In the alternative, you can check this article out, as well as a variety of other insurance-themed articles, at This particular article can be found under "Web Exclusives":



Daniel E. Cummins

Every profession generates its own perpetual annoyances that cause frustration day in and day out. Claims is no exception, as there are pet peeves caused by fellow claim professionals, claim management, attorneys, or even from dealing directly with insureds and claimants.

I recently floated this topic on the discussion boards of several insurance or claim groups to which I belong on ( I requested feedback about what irked people the most in claims. What follows is a cross-section of the responses I received in this unscientific study, along with suggested solutions to lessen the frequency that these annoyances occur. Let’s see if any strike a nerve with you.


A frequently mentioned pet peeve of claim professionals was being hit with surprises. Claim representatives, under the pressure of management, obviously do not appreciate being notified of a court hearing or a pre-trial settlement conference the day before it is scheduled to happen, particularly when the court previously sent out the date weeks or months before.

As noted by one claim rep, claim managers do not want any surprises from their claim staff. For example, management does not want to learn that a reserve should have been raised substantially a year ago, or that extraordinary settlement authority is needed by next day.

Possible Solution: Stay on top of your calendar — and your defense counsel — to keep you apprised.

Silence from Plaintiff’s Counsel

Another continually recurring annoyance for claim representatives is the situation whereby plaintiff’s counsel sends a letter of representation for an injured party and then falls as silent and unresponsive as a hippo laying in the summer sun at the zoo. The claim representative is then left with an open file in an increasingly growing list of open files, with no opportunity to work to evaluate and close the file out. This is frustrating, to say the least.

Possible Solution: Keep reaching out to plaintiff’s attorney. Dangle a carrot if you can; eventually they will come around because you have what they are looking for — namely, money.

Disorganized Case Presentations

According to the replies to this inquiry on the various discussion boards, perhaps just as bad as the non-responsive plaintiff’s attorney is the disorganized and/or unreasonable attorney. Claim representatives loathe the receipt of a pile of unorganized documents that are not broken out in to separate exhibits and placed in chronological order, with the duplicate copies removed from the pile.

Claim professionals also note that plaintiff’s attorneys often inexplicably fail to provide current photos or, at times, any photos for claims where scarring or disfigurement is alleged. Evaluating a scar that you’ve never seen is obviously problematic.

It is also frustrating for claim representatives to receive records only from the date of the accident forward, as opposed to complete medical files, particularly when it is evident that the claimant has a related prior medical history.

Possible Solution: Politely indicate to plaintiff’s counsel that it would be very helpful and appreciated if, next time, he could submit a streamlined demand package broken down into exhibits, and with duplicates removed. Maybe, one by one, the attorneys will learn, and you will have to deal with this pet peeve less frequently.

Ignorant Defense Counsel

Many claim professionals responded on the discussion boards by lamenting that their own insurance defense counsel often talked down to them instead of to them. Some also complained that defense counsel was often reluctant to hear out the claim representative’s opinions about the file, and that counsel even took umbrage, at times, with the claim representative offering instructions about how to proceed with the case or settlement negotiations.

Other pet peeves with defense counsel included a delay in timely status reports about the file and not receiving other reports as promised. Failure of defense counsel to return phone calls was another oft-repeated complaint.

Some claim professionals complained about the apparent inability of defense counsel to answer simple questions about the value of a claim or the cost to defend through the end of the matter. One particularly irked claim professional vented about “defense lawyers who call you up, yak for 45 minutes about non-urgent items and then close by saying, ‘I'll put this in a letter to you.’”

Possible solution: Have a frank discussion with defense counsel at the start of each claim, politely reminding him about how you would like certain things to be handled.

Difficult Insureds or Unrepresented Claimants

Another common lamentation by claim representatives concerns the penchant of insurers to absorb losses rather than refer fraudulent claims and claimants to the carrier’s Special Investigation Unit (SIU). This claim rep would rather fight and let SIU handle such claims to conclusion where the elements of fraud are clearly displayed within the content of the submissions made by the claimant and his counsel.

Some claim reps expressed beefs about the shoddy treatment they sometimes receive from difficult insureds or unrepresented claimants. One pet peeve noted was insureds who demand immediate responses from the claim reps on their terms. For instance, for a homeowners’ claim requiring an inspection, the homeowner reports that he’ll be home from work at 5:30 p.m. Well, the family should finish eating dinner by 6:30 p.m., so can the adjuster simply arrive between 7 and 7:30 p.m.?

Not surprisingly, claim professionals do not feel kindly towards insureds or claimants who call and swear at them. They are also not too fond of those who threaten to call the claim representative’s boss, insurance commissioner, or whomever else, provided that the claim rep does not comply with whatever request instantly.

Possible Solution: Bite your tongue. You can’t win here.

Fellow Professionals

One claim rep pointed to the pet peeve of insurance agents calling at the request of insureds and asking why the claim was not being paid, without the agent having first read the applicable policy language. Another claim professional said his biggest pet peeve is opposing claim reps. Many seem burned out; many lack any personal touch. Equally frustrating are opposing claim reps who take an unreasonable settlement position in a matter involving multiple defendants and defending carriers.

Possible Solution: Remember the adage, “what goes around, comes around.” Treat fellow claim professionals reasonably, and that good karma will hopefully, eventually, come back to you.

While these pet peeves may never be eradicated, perhaps an active acknowledgment of them by all of the parties involved can jumpstart the process of neutralizing irritating and frustrating situations. By addressing a pet peeve as it occurs, claim professionals can potentially minimize the frequency at which these recurring annoyances happen. In the end, the claims profession as a whole will benefit.

Daniel E. Cummins, Esq., is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( His blog, Tort Talk, provides updates about Pennsylvania civil litigation and insurance law issues (

Friday, February 19, 2010

New Trial Court Decision Sustaining Venue Clause in UM Policy

A few days ago, the Lackawanna County Court of Common Pleas handed down a decision upholding a venue clause in a UM policy issued by Erie Insurance Exchange in the case of Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010 Thomson, S.J).

Visiting Senior Judge Harold A. Thomson, Jr., my old boss from my law clerking days in Pike County, was faced with Erie Insurance's Preliminary Objections to a breach of contract and bad faith suit filed against Erie filed in Lackawanna County.

The case arose out of an accident that occurred in Northampton County during which the pedestrian Plaintiff was struck by an uninsured driver. At the time of the accident the Plaintiff was a resident relative insured under his parent's Erie policy. The parents lived in Northampton County.

Erie raised coverage issues and refused to participate in arbitration proceedings. The Plaintiff's Lackawanna County attorney filed the breach of contract and bad faith action in Lackawanna County. The Plaintiff's theory on venue was essentially that Erie did business in Lackawanna County and could therefore be sued in that county on the claims presented.

Judge Thomson rejected the Plaintiff's venue argument and sustained the carrier's Preliminary Objections. The court was influenced by the fact that the accident occurred in Northampton County, the insureds resided in Northampton County at the time of the accident, and the Erie policy language provided a forum selection clause that mandated that any dispute as to coverage was to be decided in the county where the named insured resided at the time of the accident.

It is noted that this result of this case is similar to that of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) in which the Superior Court upheld the 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. The O'Hara decision was not cited in Kichline v. Erie Ins.

Anyone desiring a copy of the Kichline v. Erie Ins. decision may contact me at

I thank Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee for bringing this case to my attention.

Tuesday, February 16, 2010

New Westlaw Citation For Trial Court Opinion on Expert Discovery

Here's the new Westlaw citation for the case of Barrick v. Holy Spirit Hospital, 2009 WL 5841789 (Cumberland Co. 2009 Hess, J.). In this case, the trial court ruled that a plaintiff's treating doctor, who also turns out to be the identified expert for trial for the plaintiff, must turn over correspondence the expert received from the plaintiff's attorney, particularly where, as in this case, the plaintiff's attorney discussed in his letters the strategy on the formulation of the expert's opinion.

This case has been appealed to the Superior Court by the Plaintiff and is currently in the briefing phase. I am in the process of drafting the amicus brief on behalf of the Pennsylvania Defense Institute. I will post a link to the brief once it is filed if anyone is interested. In the meantime, please contact me at should you wish to view a copy of the trial court's opinion.

Thanks to James Beck of the Philadelphia office the Dechert LLP law firm for securing the Westlaw citation.

Judge Greenaway Appointment to the Third Circuit Court of Appeals Confirmed

On Tuesday, February 15, 2010, the United States Senate unanimously confirmed New Jersey Federal District Court Judge Joseph Greenaway Jr.'s appointment to the United States Third Circuit Court of Appeals.

The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.

Thursday, February 11, 2010

In Honor of Lincoln's Birthday...

In honor of President Abraham Lincoln's Birthday, I provide this reprint of an article of mine that appeared in the Pennsylvania Law Weekly a few years back:

Lincoln Logs of Wisdom

A Presidents' Day review of practical advice from one of our greatest lawyer-presidents

By Daniel E. Cummins
Special to the Law Weekly

On President's Day – Feb. 19 this year – we will honor the memory and accomplishments of one of our greatest presidents, Abraham Lincoln. While the myth and legend of this great president has expanded through history, it cannot be forgotten that he began his career as a country lawyer in Illinois.

Over the course of his career as an attorney and during his rise as a politician, Lincoln was famous for his wit and simple, yet compelling, way with words. He uttered many famous quotes, some of which are noted below, that can serve as excellent advice even for today's lawyers practicing nearly 150 years after his untimely death.

Whatever you are, be a good one.

Despite the current negative public perception of lawyers, the practice of law remains one of the noblest of professions. Continuing efforts of all attorneys to do the best they can for their clients and their community not only results in personal fulfillment but also advances the profession as a whole.

Good lawyers are not only strong advocates on behalf of their individual clients but may also serve as pillars of the community through volunteer work and pro bono work. Striving to volunteer one's time in this respect to the community is not only a part of being a good lawyer but also serves to foster a positive view of the profession as a whole.

It should also be kept in mind that we are not just lawyers. We may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts. An effort to be good in all aspects of life results not only in a sense of accomplishment but also makes for a more fulfilling existence. So the next time you find a heads up penny, in addition to the prospect of good luck, think, "Whatever you are, be a good one."

Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.

As lawyers, our reputations precede us. Having a character made up of integrity, honesty, or punctuality may cast a shadow just as long and deep as the negative shadow cast by one having an opposite character that is exhibited through a lack of integrity or through dilatory and vexatious conduct. There can be no question that one's reputation will set the stage as to how they are dealt with and viewed by others.

In picking up new files and before dealing with an opponent, one's first thought usually turns to the reputation of that other attorney. Many times, if the reputation is not known, it will be sought out by inquiring of others or doing other research in an effort to prepare for handling a file with that opposing counsel. Similarly, in dealings with judges, the "shadow" created by an attorney's reputation will reach the courtroom long before the attorney even stands before the bench on the issue presented.

It is often said that a lawyer's word is his bond. This is more than a cliché, it is a principle, a truth, and should be honored as such. Thoroughness in preparation and presentation along with punctuality and courteousness are also important aspects of creating a positive reputation. Adherence to these qualities will only enhance one's reputation within the bar and allow for better representation of the client.

Accordingly, it is important to constantly remember that every action may help to expand, or alter, our reputations. Consistent with Lincoln's analogy, when a tree is chopped down, it leaves little or no shadow. As hard as it is to develop a strong, favorable reputation, all it takes is one misstep to diminish, or even totally destroy, that reputation.

Give me six hours to chop down a tree and I will spend the first four sharpening the axe.

There is no better lawyer than a fully prepared lawyer. Judges and fellow counsel appreciate nothing more than the prepared lawyer who can streamline and thoroughly, yet concisely, present the client's position. Clients are better served by lawyers who take the time to become fully acquainted with the facts, the law, and the rules of civil procedure before completing whatever legal task lies ahead.

Whether it be the simple presentation of a discovery motion or the participation in a lengthy trial, the more time spent in preparation, the better the finished product will be. Additionally, developing a reputation as a well-prepared attorney will earn you the respect of your colleagues, may add to your credibility and will consequently strengthen whatever position you are advocating on behalf of your client.

Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

Being in a profession that is adversarial by nature, we often approach issues with a fight in mind as opposed to efforts to reach an amicable resolution. With these words, Lincoln stressed that the role of a lawyer as a counselor is just as important, if not more important, than his or her role as a litigator.

Part of being a good lawyer is persuading clients to put emotions aside. Compromise is much more difficult when egos are involved and when attorneys take on emotional trappings of the client. Efforts at an objective evaluation of the pros and cons of any position will always serve the goal of reaching an amicable resolution of any dispute.

It is also often said that the sign of a good settlement or resolution is that both parties are not entirely happy with the result but the case is still nevertheless finally resolved. As Lincoln stressed, there is plenty of business to go around as we move from one file to the next and so litigation should not be sought out simply for the sake of litigation.

Am I not destroying my enemies when I make friends of them?

Similar to Michael Corleone's later advice in The Godfather, Part II, "Keep your friends close, but your enemies closer," Lincoln long ago recommended similar action to defuse one's opponents. Lincoln's advice goes a step further and advocates reaching out to one's enemies in an effort to appease them. Lincoln followed this advice when he famously filled his Cabinet seats with his political enemies. By doing so, he kept such enemies close and neutralized them by honoring them with prestigious positions of importance within the control of his administration.

In today's practice of law, we are routinely faced with adversarial attorneys we much rather not have to deal with. As difficult as it may be, perhaps it is better method of handling all adversaries by not retaliating in frustration but, wherever possible, greeting such opponents with appeasement or consideration.

Regardless of the shoddy treatment you may be receiving from an adversary, respond as you would wish to be treated. Routinely grant extensions or continuances when requested so long as it is not to the detriment of your client. Voluntarily disclose discovery that such opponents may be entitled to without the necessity of formal discovery requests or motions practice. Promptly return phone calls.

By acting in a non-confrontational manner towards vexatious opponents, it becomes more and more difficult for such adversaries to continue to respond or litigate in a negative fashion. Additionally, if certain issues eventually come to a head and require court intervention, the court would look more favorably upon your efforts towards an amicable resolution of the issue when compared to the petty and negative conduct of your opponent.

Better to remain silent and be thought a fool than to speak out and remove all doubt.

At CLE seminars, we often hear judges on the panel spend their presentations expressing the virtues of brevity and giving examples of less than exemplary arguments or presentations presented by attorneys in court.

Overburdened judges and bored jurors appreciate concise arguments grounded in common sense and ideals of fairness. The old school of thought of reiterating your argument three times in an effort to engrain your position upon the minds of the jurors no longer seems valid in this day and age of the rapid fire receipt and retention of information. Jurors, who are much more intelligent than they are usually given credit for, may become frustrated and develop a negative view towards you and, consequently, your client if you bore them with an unnecessarily repetitive presentation.

Being brief and concise can go a long way in having an impact and leaving a lasting impression upon others. No better example of this can be cited than Lincoln's own brief, concise, yet powerful, Gettysburg Address. Lincoln used less than 300 words delivered in just over two minutes in what has become known as one of the most compelling speeches in American history.

And in the end it's not the years in your life that count. It's the life in your years.

Despite being overburdened with attempting to reunite a country divided by civil war and bloodshed, Lincoln remained close to his wife, doted on his children, and otherwise attempted to live his life to the fullest.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives. A balance between work and life outside of work should be sought and encouraged. Focusing one's energy entirely on work may cause one to burn out or become disillusioned with the practice. It will also likely result in significant regret at the end of one's life when looking back at all the missed opportunities to enjoy life outside of work with our family and our friends.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends, enjoying recreational activities or hobbies, or by developing whatever your potential may be will only serve to add life to your years. Such a well-rounded lifestyle may also result in one becoming a more productive and effective attorney.

President Abraham Lincoln has been rightfully revered as a great orator and a figure who personifies honesty, integrity, and freedom. What better way is there to honor his memory than by recalling the above-noted ideals he pursued and attempting to incorporate them into our everyday lives in a continuing effort to improve the world around us. In this regard, as stressed by Lincoln himself, "Leave nothing for tomorrow which can be done today." •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( For more background information on Attorney Cummins, see his online profile at

This article is reprinted here, with permission, from the January 29, 2007 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

Tuesday, February 9, 2010

Governor Rendell Announces Two More Appointments to Fill Vacancies on Luzerne County Court of Common Pleas

Governor Rendell has nominated Lewis Wood Wetzel, Esquire of Dallas and Joseph Van Jura, Esquire of Kingston to fill the open judgeships on the Luzerne County Court of Common Pleas. It is hoped that these nominees will be whisked through the nomination process quickly so they can assist with the backlog in the court system.

According to the website of his law firm, Wetzel, Caverly, Shea, Phillips, and Rodgers , Attorney Wetzel is a 1968 graduate of the Dickinson School of Law and has specialized in Real Estate Law, Business Litigation, Probate, Estate Planning, Wills, Trusts. See

According to Martindale-Hubbell, Attorney Van Jura graduated from the University of Notre Dame Law School and entered the practice of law in 1972. His legal specialties are listed as covering Litigation; Insurance Defense; Personal Injury; Torts; Real Estate; Education Law; Zoning, Planning and Land Use.

According to a February 9, 2010 article by Dave Janoski in the Citizens Voice, Attorney Wetzel and Attorney Van Jura will fill vacancies created by the corruption-related resignation of former judge Michael T. Toole and the election defeat of former judge Peter Paul Olszewski Jr.

The article also noted that Wetzel and Van Jura would serve through 2011, at which point voters will choose two judges to serve 10-year terms.

Janoski also wrote that the addition of Wetzel and Van Jura to the short-handed county bench would leave the county with nine of its 10 judicial slots filled. Last year, the state Supreme Court halted an election to fill the 10th seat on the bench, left vacant after it removed former judge Ann Lokuta from office in December 2008. Lokuta, who was accused of mistreating court employees and attorneys, is still in the process of seeking reinstatement.

Just In Time For Valentine's Day...

Just in time for Valentine's Day, here's a reprint of my recent article from the Pennsylvania Law Weekly:

Spread A Little Love:

Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly

The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.
With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff

Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls

It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others

See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.
Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology

Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.


In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies

Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse

Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself

Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins ( For more background information on Attorney Cummins, see his online profile at

This article originally appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Another Recent Post-Koken Decision

A recent post-Koken decision has been handed down in Philadelphia County in the case of Zerggen v. Rietman and Nationwide Insurance, No. 0906 of 1752 June Term 2009 (Phila. Co. Jan. 20, 2010 McInerney, J.). Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and transferred the case to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

The decision is by Order only, without any Opinion. Anyone wishing to receive a copy of the Order from Zerggen may contact me at

The Plaintiff in Zerggen has filed a Motion for Reconsideration. Perhaps an Opinion will be forthcoming from the court thereafter.

Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq.

I note that the above Philadelphia County case in favor of a severance of the claims is in conflict with the previous Philadelphia County cases I have seen of Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied) and Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied). [I do not have copies of those opinions on hand.]

Thus, in addition to some conflicting decisions from different counties around the Commonwealth on the consolidation (19 decisions) vs. severance (5 decisions) issue, there is now a split of the authority from within the Philadelphia County Court of Common Pleas. All the more reason for some trial court judge to hopefully grant permission for this issue to go up on an interlocutory appeal to the Superior Court so that members of the bar, as well as the trial court judges, can secure some appellate guidance on how to handle this issue.

For more details on the county-by-county handling of this issue by the trial courts, please click on the Post-Koken Scorecard down on the right hand column of this blog.

I thank Attorney Verbeke for bringing the Zerggen case to my attention.

Saturday, February 6, 2010

HMOs Exempt From Bad Faith Lawsuits

The Superior Court recently affirmed a trial court decision that a Plaintiff was unable to assert a Section 8371 bad faith claim against a defendant HMO because the Health Maintenance Organization Act exempts HMOs from the bad faith statute. Nordi v. Keystone Health Plan West, Inc., 2010 WL 204103 (Pa. Super. Jan. 22, 2010 Cleland, J.). The Plaintiff's lawsuit against the HMO arose out of a denial of the Plaintiff's request for continued physical therapy treatments.

This case may also be viewed at

Source: Pennsylvania Law Weekly "Case Digests" (2/1/10).

Wednesday, February 3, 2010

Split Decision by Pennsylvania Supreme Court on Attorney-Client Privilege Issue

Recently, on January 29, 2010, the Pennsylvania Supreme Court issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mut. Ins. Co. v. Fleming, 2010 WL 336171, No. 32 WAP 2007 (Pa. 2010). Only four Justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves, having sat in on the same case when they were previously on the Superior Court. The Court was also down a Justice at the time this case was considered because of a retirement.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Saylor and Chief Justice Castille voted to reverse. Under the rules of the Court, the 2-2 split means that the Superior Court decision was affirmed.

Basically, the case involved a lawsuit brought by Nationwide against a group of former insurance agents who allegedly provided confidential information on policyholders to competitors of Nationwide. The agents countersued under a claims of bad faith and improper efforts by the carrier to drive the agents out of business.

In the underlying action, the agents wanted to compel the production of a document drafted by Nationwide's attorney and provided to the client, which document outlined the attorneys' assessment of the potential liability of the agents and also discussed strategy for the lawsuit against the agents. This document was identified as Document 529 in the Opinion. The document also contained the attorneys' assessment that the suit against the agents was not likely to succeed, but that the primary purpose of pursuing such a suit was to send a message to other agents.

Although Nationwide refused to produce the above document, it did voluntarily produce other documents authored by the attorneys, identified as Documents 314 and 395. These produced documents portrayed Nationwide's case against the agents in a more favorable light.

The trial court in this case found that Nationwide waived any asserted privilege with respect to Document 529 by voluntarily producing Documents 314 and 395, given that all of the documents essentially dealt with the same topic.

The Superior Court had affirmed on the alternative grounds that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around. As stated, the split decision of the Supreme Court leaves this as the law of the land.

The Supreme Court Opinion in reversal, written by Justice Saylor and joined in by Chief Justice Castille, criticized the Superior Court's ruling, finding that attorney advice and information from clients are "often inextricably intermixed." These Justices felt that the Superior Court rule presents "'inordinate practical difficulties' that make the rule administratively and judicially unworkable." The Opinion in reversal would have recommended erring on the side of caution and apply to the attorney-client privilege to all communications between an attorney and client.

According to a February 2, 2010 article by Gina Passarella of The Legal Intelligencer entitled "Justices Can't Agree on Attorney-Client Privilege Dispute," the Pennsylvania Supreme Court may get another chance to review this case, presumably with a full panel of Justices, in the case of Gillard v. AIG. A petition for allocatur on that case is currently pending before the Court.

To view the Nationwide v. Fleming Opinions and Order, click on these links:

Per curiam Order:

Opinion in Affirmance:

Opinion in Reversal:

Thanks to Attorney Matt Keris of the Moosic, PA office of Marshall, Dennehey for bringing this decision to my attention.

Tuesday, February 2, 2010

Recent Bad Faith Decision From Superior Court

Recently, on December 28, 2009, the Pennsylvania Superior Court affirmed summary judgment in favor of Progressive Insurance Company in the bad faith case of Johnson v. Progressive, 2009 WL 5066780, 2009 Pa.Super. 255 (Pa.Super. 2009 Bowes, J.).

According to Judge Bowes' Opinion, the UIM policy limits of $100,000 were demanded by the Claimant. After discovery, an offer of $30,000 was extended. Eventually, an arbitrator awarded the Claimant $75,000.00.

The Opinion also noted that the carrier conducted a reasonable investigation into this claim in which the extent of damages was disputed between the parties. No misrepresentations by the carrier were found and it was indicated that the carrier moved the matter along to the arbitration in a prompt fashion.

The court also rejected the Plaintiff's claim that the carrier's settlement offer was too low, especially when compared with the award that was eventually entered. It was found that there was sufficient evidence to support the differences of opinion on the value of the case presented.

As such, the Superior Court affirmed the trial court's entry of summary judgment in favor of the carrier after finding that there were no genuine issues of material fact with respect to the finding that the carrier had not displayed any evidence of bad faith in the handling of this claim.

In addition to the Westlaw citation above, this case can also be viewed at

Petition Filed to Appeal Post-Koken Forum Selection Clause Case Up to Pennsylvania Supreme Court

I received word from one of the amicus defense attorneys involved in the case of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) that the Plaintiff filed a Petition for Allowance of Appeal with the Supreme Court on January 26, 2010. It remains to be seen whether the Court will accept this appeal.

You may recall that O'Hara was a post-Koken case in which the Superior Court upheld 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.

Thanks to Attorney Tom McDonnell of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for bringing this development to my attention.