Saturday, May 29, 2010

Bucks County Court Rules No Uninsured Motorist Coverage for Accident Caused by Debris in Roadway

After a bench trial on May 19, 2010, Judge Jeffrey L. Finley of the Bucks County Court of Common Pleas recently entered a judgment in favor of the Erie Insurance in the case of Erie Insurance v. Sciss, 08-07915-32-1 (Bucks Co. May 19, 2010), a declaratory judgment action on the issue of whether the injured party was entitled to any uninsured (UM) motorist coverage as a result of a single vehicle accident caused by debris on the roadway.

This case involved a motorcycle accident that occurred on May 23, 2004. The injured party was driving a newly purchased Harley Davidson and was allegedly caused to crash by debris on the roadway in the form of gravel, cinders, stones and/or rocks. No other vehicle was involved in the accident.

The insurance policy at issue in the case provided that "Damages must result from a motor vehicle accident arising out of the ownership or use of the uninsured motor a motor vehicle."

Counsel for the carrier, Carey Breon, Esquire from the law firm of Forry Ullman relied on, in part, the recent defense-favorable Pike County decision on the same issue secured by my office in Adragna v. State Farm, 291-2009-Civil (Pike Co. May 5, 2010 Chelak, J.).

For more info on the Adragna case, click these links to other, recent posts on Tort Talk:

Counsel also relied upon the Montgomery County case of Erie Insurance Company v. Chong, Case No. 06-03858, in which that court recently granted summary judgment to Plaintiff, Erie, on similar facts.

In Chong, Defendant, Brandon K. Chong sought uninsured motorist benefits after he was seriously injured when his vehicle, insured by Erie, collided with a deer carcass on the westbound lanes of the Pennsylvania Turnpike.

In support of their claim for uninsured motorist benefits, the injured party argued that the deer carcass allegedly came to be in the roadway after being negligently struck and permitted to remain in the roadway by an unidentified motorist.

After it was determined that the injured party was unable to produce any competent evidence to show how the deer carcass ended up on the road at, or just prior to, the accident, Erie was granted Summary Judgment.

Getting back to the case of Erie Insurance v. Sciss, after hearing the case during a bench trial, Judge Finley of the Bucks County Court of Common Pleas entered judgment in favor of Erie on the facts and law presented.

There now appears to be a growing line of cases holding that where a single vehicle accident is caused by debris in the roadway from an unknown or unidentified source, the uninsured motorist (UM) carrier need not provide UM benefits under a policy provides that, in order to recover, the accident must arise out of an accident caused by the maintenance or use of a vehicle as a vehicle.

Thanks to Attorney Cary Breon for bringing this case to my attention.

Anyone desiring a copy of the Erie Insurance v. Sciss one line Order can contact me at I am also trying to get my hands on the Erie Insurance v. Chong Order.

Wednesday, May 26, 2010

Erie Insurance Files Discontinuance on Petition to Overturn Luzerne County UIM Award

According to a May 26, 2010 Times Leader article by Terri Morgan-Besecker, the attorney for Erie Insurance Company, which sought to overturn a $1.2 million arbitration award that was reportedly the basis of corruption charges against former Judge Michael Toole has filed papers to terminate the case with the court.

Michael Blazick, attorney for Erie Insurance Exchange, filed a discontinuance in the Luzerne County Court of Common Pleas on May 3, 2010 that ended the case. There was no indication as to whether the case was terminated because a settlement was reached or because the insurer decided to drop the matter, however.

By way of background, Erie filed a petition in January that sought to overturn a Dec. 18, 2007 underinsured (UIM) motorist arbitration award issued to the injured party, arguing it was the product of fraud, corruption and misconduct involving, in part, the selection of the neutral arbitrator. The petition was based on Toole’s guilty plea in December to charges relating to his handling of an uninsured motorist insurance arbitration claim.

Here's a link to the Times Leader article on the topic:

Trial Court Inter-Policy Stacking Case Appealed

I recently reported on the April 24, 2010 trial court decision by Judge Robert L. Boyer in the Venango County Court of Common Pleas case of Heller v. State Farm, No. 408-2008 (Venango Co. 2010 Boyer, J.) that serves to clarify certain issues involving inter-policy stacking in UIM cases.

The decision also provides an excellent explanation the interplay of the Pennsylvania Supreme Court's decisions on the issue in the Craley and Generette decisions, "a topic that still hurts when I try to wrap my head around it."

For more details on that decision, click this link to that blog post:

By way of update, I have been informed that the Plaintiff in Heller has filed an appeal of the issues presented to the Pennsylvania Superior Court. I send thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie, & Skeel for this update.

Auto Law Property Damage Subrogation Decision

In its recent decision in Jones v. Nationwide Ins. (Pa.Super. Bowes, J., Olson, J., and Fitzgerald J.), the Pennsylvania Superior Court issued an Opinion affirming the lower court's dismissal of class action Complaint in which it was claimed that Nationwide, the Plaintiff's auto insurer, violated Pennsylvania's "made whole" doctrine by issuing her a pro rata reimbursement of her deductible after Nationwide had made a subrogation recovery for the underlying property damage.

Nationwide's action was found to be consistent with an insurance regulation mandating pro rata distributions. Plaintiff argued that the regulation was invalid since the regulation was promulgated in violation of Pennsylvania's "made whole" law and because the insurance commissioner did not have the authority to issue such a regulation. Thus, by relying on the regulation Nationwide, according to Plaintiff, was liable for breach of contract, conversion and, amongst other things, bad faith.

The Superior Court, relying on the Opinion issued by a Federal District Court in Harnick v. State Farm, Slip Copy, 2009 WL 579378 (E.D.Pa. 2009), held that the regulation was valid and not in violation of the "made whole" doctrine. Accordingly, as Nationwide was following the regulation, the Plaintiff's claims against it were properly found to be devoid of merit.

Bennett, Bricklin & Saltzburg, LLC appeared in Jones v. Nationwide as counsel for the amici curiae, the National Association of Subrogation Professionals, the Pennsylvania Defense Institute and the Pennsylvania Insurance Federation. Thanks to Attorney Will Sylianteng of the Bennett Bricklin & Saltzburg firm for bringing this case to my attention.

A link to the opinion is noted below:

Tuesday, May 25, 2010

York County Trial Court Favors Severance of Post-Koken Claims

On May 20, 2010, the York County Court of Common Pleas issued an en banc decision, by Order only, granting a tortfeasor's Preliminary Objections and request for severance of the third party claims from the UIM claims in the case of Winkler v. Argabright and Allstate Ins. Co., No. 2009 -SU -001244 -01 (York Co. May 20, 2010 Chronister, Thompson, Linebaugh).

According to the Post-Koken Scorecard, this York County decision is consisted with that trial court's previous decision on this issue. Click on the Post-Koken Scorecard on the right hand column of the blog for more information.

Thanks to Attorney Tom McDonnell of the Pittsburgh office of the law firm Summers, McDonnell, Hudock, Guthrie, and Skeel for bringing this case to my attention. The Order was secured by Attorney Candace N. Edgar from the Harrisburg office of Summers, McDonnell.

Anyone desiring to secure a copy of this one line Order may contact me at

Link to Legal Intelligencer Article on Pike County Decision Finding No UM Claim for Accident Caused by Debris in Road

Here's a link to a May 25, 2010 article by Leo Strupczewski in The Legal Intelligencer and Pennsylvania Law Weekly on the recent Pike County decision in Adragna v. State Farm, in which my firm secured a holding that there can be no uninsured motorist claim from a single car accident caused by debris in the road under the policy language at issue in that matter:

The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Monday, May 24, 2010

ARTICLE: Take Me Out to the Ballgame

Below is an article of mine set to appear in the May 25, 2010 edition of the Pennsylvania Law Weekly. I hope you find it as enjoyable reading--don't forget to check out the byline at the end.

Take Me Out to the Ballgame
Little League tips for big league lawyers

Daniel E. Cummins
Pennsylvania Law Weekly/The Legal Intelligencer
May 25, 2010

It's that time of year again — Little League baseball is starting up for boys and girls.

The smell of hotdogs and Cracker Jacks permeates the air, while spent sunflower seed shells crunch underfoot on the dusty floor of the dugout.

For kids, it's a time for new uniforms, cleats and friends. For parents, on the other hand, it can be a time for more laundry, over-the-top coaches hellbent on winning and some equally overbearing fellow parents. As Yogi Berra said, "Little League baseball is a very good thing because it keeps the parents off the streets."

In any event, it's a time for great memories.

During one "quick" two-and-a-half hour long Little League baseball game, it became clear that a lot of the coaching shouted by the managers and others could also be applied to improve one's game in the practice of law.

'Let's Warm Up and Stretch'

Warming up and stretching in baseball prevents injuries. Doing the same before any court appearances may prevent damage to the client's case.

Whether it be the simplest of oral arguments on a slam dunk motion to compel, a direct examination, a cross-examination or an opening statement or a closing argument, all can benefit from a warm up by, at the very least, outlining the presentation on paper.

The more involved court presentations can be improved by a practice run-through in front of another person.

Like pre-game calisthenics or drills, going over such important presentations out loud, in a repetitive fashion, can assist one in committing the same to memory and tweaking it where necessary.

Even better, taking a lap with the presentation in front of another attorney or a lay person can result in tips on ways to improve upon the questioning of a witness or an address to the jury.

'Keep Your Eye on the Ball'

It is said that one of the hardest things to do in all of sports is to hit a pitched baseball. In fact, the "Splendid Splinter," Ted Williams, one of baseball's greatest hitters, said, "The hardest thing to do in baseball is to hit a round baseball with a round bat, squarely."

Analogously, one of the hardest things to do in the practice of law is to keep your eye on the ball when an opposing counsel is throwing all kinds of purposefully distracting maneuvers your way.

The best way to stay focused in this regard is to not take matters personally and to not stoop to the opponent's level in angry retaliation.

Wherever possible, ignore the shenanigans being put forth by opposing counsel and stay the course on your theory of the case. Keep your eye on the ball. Your client will be better off for it.


Everyone's always required to run in baseball. The coaches are always shouting, "Hustle," "Move," "Chase it down," "Run it out," "Run it in!"

Hustling in the practice of law includes quickly answering correspondence, promptly responding to discovery and motions, and staying ahead of opposing counsel's tactics. This will allow one's case to move in a quicker and smoother fashion, hopefully toward the desired result.

The key is to honor your client's case by continually hustling and not loafing, all the way to the conclusion of the matter. As Yogi Berra said, "The game isn't over until it's over."

'Eddie! Run to First Base ... Not Third!'

Learning the fundamentals and the rules of the game in T-ball lays the foundation for a good ballplayer later.

Former St. Louis Cardinals manager Whitey Herzog advised: "Fundamentals are the most valuable tools a player can possess. Bunt the ball into the ground. Hit the cutoff man. Take the extra base. Learn the fundamentals."

The same applies in the practice of law, which is founded on rules and fundamental concepts.
As such, in addition to staying on top of new caselaw, a quick read-through of the Pennsylvania Rules of Civil Procedure on a periodic basis, even once a year, is recommended. This will not only refresh your memory of certain rules, and loopholes, but you may also surprise yourself by learning something new.

'Keep Your Butt Down!'

Perhaps nothing irks a coach more than seeing a ground ball go through the legs of an infielder who failed to get his butt down and his glove in the grass.

Something that falls through the cracks in the practice of law may unfortunately bring you much more trouble than an exasperated sigh and a big roll of the eyes from a coach.

To prevent such problems, it helps to regularly look ahead on the calendar, not only to the next week, but over the next 30 days to be reminded as to what's coming up. If the time permits, start a draft of that brief now that's due 30 days out.

It would also be beneficial to stay on top of the mail and phone calls by attempting, whenever possible, to return such communications on the spot and certainly no later than 24 hours after receipt. Once incoming letters and phone calls get older than 24 hours they are more likely to be forgotten, especially with the onslaught of more letters and phone calls received by a fortunately busy attorney.

Staying on top of the calendar and these communications will prevent things from going through the wickets and will make it less likely that you will be charged with an error.

'Cover All the Bases!'

A good baseball coach teaches his players to cover all of the bases on any hit ball.

If the coaching is good, the players are trained so that the first baseman covers first, the second baseman or shortstop go to the bag at second and the third baseman covers third at the crack of the bat. Although such coverage of the bases is usually wasted energy, there is always the potential that this maneuver will come in handy and may even secure an out or save a victory for the team.

Therein lies the pressure of the practice of law — the need to cover all of the bases all of the time. In addition to staying on top of incoming communications as noted above, another way to cover all the bases is to stay on top of the law.

New developments in the law can be committed to memory not only by reading updates but by actively typing case summaries and citations to a running list on a file on your computer.

Whether it be by reading the case digest section of the Pennsylvania Law Weekly, the blue advance sheets of the Atlantic Second Report, or other sources of updates, knowing the latest cases in your field of practice will always keep you ahead of the competition.

'You Never Argue With the Umpire!'

While it may have been socially acceptable in 1977 for Billy Martin to kick dirt all over an umpire's shoes and for Tommy Lasorda to get in an ump's face and say things like "%#@&*!%#@&*%," such is not the norm any more in baseball.

Nor is it in the practice of law, although the legal drama shows on TV these days may continually tempt young lawyers into believing it is acceptable to be flippant and disrespectful toward judges.

Candor, respect, and deference remain the rule in the courtroom and should be honored at all times.

So as much as you may want to go all Earl Weaver on a judge and his or her decision (which is probably the correct decision anyway), it's probably best to leave things unsaid or take it up on appeal.

'You'll Get 'Em Next Time.'

In baseball, failure is not the end of the world — it's expected. Strikeouts and errors happen all the time. Mediocre catcher and great baseball announcer, Bob Uecker, once proudly stated, "I led the league in 'Go get 'em next time.'"

The key in Little League to keeping young ballplayers coming back for more, despite errors or strikeouts, is repeated encouragement.

Noting that perfection is not the goal in baseball, Ted Williams stated, "Baseball is the only field of endeavor where a man can succeed three times out of 10 and be considered a good performer."

While attorneys should strive for better than a .300 average in terms of successes, a lawyer obviously can't win every motion or every case. But what counsel can do is keep their head up, learn from the losses, and move forward in search for a better result the next time around. To quote Babe Ruth, one of baseball's all-time greatest homerun hitters, "Don't let the fear of striking out hold you back."

'Line Up to Shake Hands!'

Last but not least, don't forget to line up at the end of every "game," whether you win or lose, to shake hands with your opponent and say, 'Good game.'

And so while you're out there in the game of law, enjoy it while you're in it, for as the great baseball announcer Vin Scully once said, "It's a mere moment in a man's life between the All-Star game and the Old-Timer's game."

Special to the Law Weekly Daniel E. Cummins is a partner in the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins and maintains a civil litigation blog called Tort Talk at He additionally serves as a T-ball coach where he averages 1.5 bats to the groin per game. He also coaches a coach-pitch team and, with his nasty lob ball, has a .053 ERA and averages 14 strikeouts per game.

Continuing Validity of Assumption of Risk Defense Noted by Pennsylvania Superior Court

The continuing validity of the assumption of risk doctrine in Pennsylvania was noted in the recent case of Montagazzi v. Crisci, 2010 WL 1732231 (Pa. Super. April 30, 2010 Bender, J.).

In Montagazzi, the Superior Court affirmed the order granting summary judgment in favor of all defendants on plaintiffs' claims that defendants were negligent in failing to warn or prevent the 15 year old minor plaintiff from lighting the fuse of an improvised explosive device that he and the other minor defendants created.

The trial court aptly found that the minor defendants owed the injured party no duty and, in the alternative, that the injured party had assumed the risk of injury as a matter of law.

Finally, the court did not accept plaintiffs' argument that the doctrine of voluntary assumption of risk should be abolished. The Superior Court noted that it was without authority to abolish the doctrine and left that decision for the Supreme Court on another day.

In any event, the Superior Court went on to note that it found no reason to invalidate the trial court's application of the doctrine at the summary judgment stage under the current state of Pennsylvania law.

The appellate court noted that the injured minor conceived and executed a design for an improvised explosive, procured the wick that served as a fuse, allowed it to be lit and held it in his hand on two successive occasions.

As such, the Superior Court noted that the injured party proceeded in the face of a known danger of explosion and assumed the risk that the device would explode, i.e., the injured party voluntarily and knowingly exposed himself to the very danger the device was supposed to do. The Court therefore found that the injured party relieved those who may otherwise have had a duty to warn him, and implicitly agreed to take care of himself.

The Opinion may be viewed by clicking on this link:

Source: Pennsylvania Law Weekly Case Digests

Pennsylvania Superior Court Addresses Trivial Defect Case

In the recent case of Mull v. C.S. Ickes, Jr., 2010 WL 1758567 (Pa. Super. May 4, 2010 Freedberg, J.), the Superior Court reversed the entry of summary judgment in favor of the defendants, finding that the defect in their sidewalk was not so obviously trivial as a matter of law to dismiss the case against the defendants and prevent it from getting to the jury.

In Mull, the Plaintiff was walking on the sidewalk in front of defendants' insurance agency, intending to enter to visit a friend of hers who was employed there. The lived across the street from the building, had visited her friend on numerous occasions before and was therefore familiar with the premises.

On the day of the incident, the snow had fallen but did not cover a 2 inch gap between slabs of sidewalk in the area of the Plaintiff's fall. The Plaintiff testified that she was caused to fall by the alleged defect in the sidewalk as opposed to the snow. The Plaintiff allegedly sustained an ACL tear, an ankle sprain, a lateral meniscus tear and a contusion to her left knee.

Plaintiff sued and defendants moved for summary judgment, contending that the defect in the sidewalk was trivial as a matter of law. The trial court agreed. The judge also relied on the fact that the Plaintiff lived across the street from defendants' premises, and had visited her friend at the agency for seven years with no prior issues. The Plaintiff appealed and the Superior Court reversed.

In doing so, the Superior Court noted that there was no definite formula to determine whether the defect was trivial as a matter of law. Thus, if the defect was not obviously trivial, the question of negligence had to be submitted to the jury.

Here, the gap measured approximately two inches, and there was a difference in height of approximately one-and-one-half inches between the slabs of concrete that surrounded the gap. The slab sloped towards defendants' building, and the gap was in the direct line of travel of one entering the building.

Viewing this evidence in favor of Plaintiff as required under the standard of review, the Superior Court held that the defect was not indisputably trivial. The court also noted that, given its position on the path to defendants' building, plaintiff had presented sufficient evidence to establish a genuine issue of material fact as to whether the defect was trivial or not.

As stated, the summary judgment entered in defendants' favor was reversed. While the Plaintiff prevailed under the facts presented, this Superior Court decision stands for the proposition that the trivial defect doctrine remains a valid defense in the Commonwealth of Pennsylvania.

To view the entire Mull decision, click on this link:

Source: Pennsylvania Law Weekly Case Digests

A "Transient Rub of Life"

In a recent decision, the Monroe County Court of Common Pleas denied a Plaintiff's motion for a new trial in a case where the jury entered a zero verdict in a clear liability case even thought the defense medical expert agreed that the plaintiff had sustained some form of injury.

In the case of Abuhadba v. Schena, PICS Case No. 10-1948 (C.P. Monroe March 12, 2010 Zulick, J.), Judge Zulick noted that the plaintiff, who claimed chronic injuries to her head, neck and back as the result of a motor vehicle accident, provided inconsistent testimony about her injuries during her time on the witness stand at trial.

Judge Zulick noted that the courts of Pennsylvania courts have addressed the issue of defense experts conceding injuries in admitted liability cases and found that some injuries should be considered a "transient rub of life" for which the jury can award minimal damages or, in the alternative, for which the jury can find that defendent's negligence caused an injury but that the injury was not compensable.

Judge Zulick held that the extent of Abuhabda's injuries was a question of credibility and the jury's verdict was clearly not against the weight of the evidence. Thus, the zero verdict was upheld and the plaintiff's motion for a new trial was denied.

A copy of this case can be secured from the Pennsylvania Law Weekly's Instant Case Service for a small fee by calling 1800-276-7427 and giving the above PICS Case Number.

Source: Pennsylvania Law Weekly Case Digests.

Drop in Local Medical Malpractice Filings

I recently reported on the drop in the number of medical malpractice case filings across the Commonwealth of Pennsylvania by 42 percent as determined by the Administrative Office of Pennsylvania Courts. A recent article by Erin L. Nissley in the May 17, 2010 edition of Scranton's The Times Tribune reported on the numbers locally.

According to that article, Lackawanna County's medical malpractice lawsuits have dropped 53 percent over the past eight years. More specifically, in 2009 there were 33 medical malpractice matters filed compared to 71 such cases in the year 2000.

The article also reports that only three medical malpractice cases went to trial last year in Lackawanna County, with only one of those cases resulting in a verdict for a plaintiff.

Between January of 2000 and July of 2003, 27 such cases went to trial with only 3 verdicts in favor of the plaintiff.

The article indicated that the neighboring counties of Luzerne and Wayne have seen an increase in such filings since the year 2000. However, most of the counties across the Commonwealth have seen drops in the number of filings similar to that seen in Lackawanna County.

Commentators have noted that the reduction in the number of medical malpractice lawsuits may be attributable to (1) the new requirement plaintiffs secure a Certificate of Merit from a medical professional to support the potential validity of the claim presented, and (2) the requirement that the cases can only be filed in the county where the malpractice took place.

Friday, May 21, 2010

Recent Trial Court Limited Tort Decision

A recent March 4, 2010 Court of Common Pleas limited tort decision was brought to my attention. In the Lawrence County case of Harland v. Pennsylvania State Police, No. 10379-CV-2008 (Lawrence Co. 2010 Cox, J.), the injured party filed suit against the Defendant seeking to recover both economic and non-economic damages for injuries sustained in a motor vehicle accident caused by the alleged negligence of a Pennsylvania State Trooper.

The Defendants filed a Motion for Partial Summary Judgment, asserting that the Defendant was not entitled to recover non-economic damages given that the Plaintiff had selected the limited tort option and the Plaintiff’s injuries allegedly did not breach the “serious injury” threshold.

The trial court denied the Motion for Partial Summary Judgment and found that reasonable minds could differ in this case on whether or not a “serious injury” was sustained. A review of the case reveals that the Plaintiff alleged, and offered proof, that he sustained obviously significant injuries to his head, neck, back, left shoulder, left arm, and left wrist as a result of the accident. The opinion notes that these injuries led to at least two different surgeries (including arthroscopic wrist surgery and arthroscopic shoulder surgery), approximately 40 physical therapy sessions, over six months of missed work.

Also noted were ongoing limitations in the Plaintiff’s activities of daily living. For example, the Plaintiff testified that he was unable to drive his vehicle for an extended period of time because he could not hold the steering wheel with his injured left arm while operating the gear shift with his right hand. The Plaintiff also noted that he had difficulty using a riding mower as a result of his injuries. He also had to discontinue his hobbies of archery hunting, fishing, and working on automobiles for an entire year while he underwent these surgeries and attended physical therapy. The Plaintiff alleged ongoing pain and limitations up to the time of the filing of the Motion for Summary Judgment.

Believing that reasonable minds on the jury could differ on whether or not the Plaintiff sustained a “serious injury” under these facts, the court denied the Motion and allowed the entire case to proceed to a jury.

Anyone desiring a copy of this opinion may contact me at

I thank Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Thursday, May 20, 2010

New Split of Authority in Lackawanna County in Post-Koken Cases on Severance vs. Consolidation of Claims

Although there are several prior Lackawanna County decisions ruling that third party claims and UIM claims may proceed together under one lawsuit in Post-Koken cases, it was held in the recent May 12, 2010 Lackawanna County Court of Common Pleas decision in Mehall v. Benedetto and Erie Ins. Exchange, 09-CV-744 (Lacka. Co. 2010 Thomson, S.J.) that such claims should be severed into two separate lawsuits.

Relying in the Pennsylvania Supreme Court case of Stokes v. Moose Lodge, 466 A.2d 134 (Pa. 1983), which held that bad faith claims could not be joined with tortfeasor negligence claims because there was no common question of law or fact, Judge Thomson ruled that Pa.R.C.P. 2229(b), pertaining to permissive joinder of claims in Complaints, did not support the joining of third party liability claims with UIM claims under one caption in a post-Koken case.

Accordingly, the court severed the claims against Erie Insurance and a John Doe Erie Insurance agent and ordered the Plaintiff to re-file the claim against those defendants under a separate caption with a new docket number.

One distinction between this case and the prior Lackawanna County cases in this regard is that, in this matter, in addition to the UIM claim against Erie, the original Complaint also contained claims of breach of contract and two negligence claims against Erie and/or the Erie insurance agent.

There was no indication in the opinion whether or not the Court was provided with copies of the prior Lackawanna County decisions on this issue before the Mehall decision was rendered.

Thanks to Attorney Robert L. Goodman of the Scranton office of the law firm of Forry Ullman for bringing this case to my attention.

Anyone desiring a copy of this decision may contact me at

Monday, May 17, 2010

Tactic of "Offensive" Collateral Estoppel Rejected by Pennsylvania Superior Court

In its May 14, 2010 decision in the case of Catroppa v. Carlton, 2010 WL 1932422, 2010 PA Super 85 (Pa.Super. 2010, Bender, J.), the Superior Court shot down the tactic of "offensive" collateral estoppel under which plaintiffs would secure a UIM award by arbitration in a clear liability rear-end accident case and then attempt to argue that the third party tortfeasor was thereafter collaterally estopped from arguing the issue of damages.

In Catroppa, State Farm provided the $50,000 in liability coverage to the tortfeasor defendant and was also coincidentally the UIM carrier that covered the injured party. There were also $50,000 in UIM benefits available. The trial court stayed the third party action so that the Plaintiff would be afforded the opportunity to complete her UIM hearing before a jury trial in the case.

The UIM arbitration hearing was held and the award was for $100,000. After the $50,000 third party credit was applied, the net award to the Claimant was $50,000.

The Defendant tortfeasor then sought to lift the stay in the third party matter to move forward with her case. However, the Plaintiff countered with a motion for summary judgment arguing that since both parties were State Farm insureds and since the Defendant tortfeasor was in privity with State Farm through the liability policy issued to her, the Defendant tortfeasor should be considered to have participated in the UIM hearing. Accordingly, the Plaintiff argued that the Defendant tortfeasor should be bound in the third party action by the UIM award since the State Farm arbitrator did not dissent and State Farm had assigned counsel to represent its interests.

Through the use of this tactic of "offensive" collateral estoppel by the Plaintiff, the trial court in Beaver County ruled that the State Farm insured tortfeasor was bound by the Plaintiff's State Farm UIM award. Summary judgment was entered against the Defendant tortfeasor for $50,000, her liability policy limit. Carlton appealed and briefs were filed including an amicus brief by the Pennsylvania Defense Institute.

The Superior Court reversed and remanded the case on the estoppel issue. The Superior Court noted that the element of collateral estoppel that the parties be the same in both actions was not met as the Defendant tortfeasor obviously was not a party to the UIM proceedings.

The Plaintiff attempted to get around this issue by arguing that, nevertheless, the tortfeasor was in privity with State Farm and, by virtue of this relationship, could be deemed to have been a participant in both proceedings. The Superior Court noted that, although the Defendant tortfeasor was in privity with State Farm by virtue of her liability policy with State Farm, she was not in privity with State Farm on the entirely separate UIM policy or contract of insurance State Farm had with the injured party.

The Superior Court was also influenced by the fact that the Defendant tortfeasor otherwise had no right to intervene in the UIM proceedings to protect herself from any award that might be entered in that matter.

Accordingly, the court in Catroppa held that the Defendant tortfeasor could not be bound by a determination from a proceeding to which she was not a party and to which she could not intervene or participate in to protect and defend her own interests.

As such the tactic of "offensive" collateral estoppel was rejected and the summary judgment entered in favor of the injured party was reversed.

A copy of this Opinion by the Superior Court can be viewed HERE.

Thanks to the Pennsylvania Defense Institute for bringing this case to my attention.

Saturday, May 15, 2010

Certificate of Merit Not Required in Case Against Attorney for Wrongful Use of Civil Proceedings

In the case of Sabella v. Estate of Gus Milides, 2010 WL 1080720, 2010 Pa.Super. LEXIS 78 (Pa.Super. March 25, 2010 Gantman, J.), the Pennsylvania Superior Court recently held that a Certificate of Merit is not required to support a lawsuit filed against an attorney when the underlying cause of action is for wrongful use of civil proceedings. The Court issued this ruling even though the suit raised questions about the attorney's professional judgment.

The primary rationale of the Superior Court in support of this decision was that the suit was filed against an opposing counsel, as opposed to counsel who formerly represented the Plaintiff.

In Sabella, the Plaintiff filed a lawsuit against the estate of a deceased attorney asserting a claim for abuse of process and wrongful use of civil proceedings. Counsel for the defendant estate of the attorney secured a Judgment of Non Pros pursuant to former Rule 1042.6 on the grounds that the Plaintiff failed to file a Certificate of Merit. Thereafter, the trial court denied the Plaintiff's Motion to Strike Judgment of Non Pros and the Plaintiff appealed the matter to the Superior Court.

In determining a Certificate of Merit was not required against a lawyer in an abuse of process/wrongful use of civil proceedings case, the Superior Court emphasized the "gist of the allegations involves actions [the decedent attorney] took as opposing counsel, not as [the plaintiff's] counsel." The Court also noted that, although the complaint "might raise questions of professional judgment beyond the realm of common knowledge and experience, [the plaintiff's] cause of action did not arise from within the course of a professional relationship with [the decedent attorney]."

Ultimately, the Sabella Court held that, even though the Plaintiff's allegations called into question various legal strategies and choices made by the decedent attorney, such allegations, in and of themselves, do not automatically make the case one of professional liability requiring a Certificate of Merit to proceed.

Accordingly, the Superior Court held a Certificate of Merit was not required in conjunction with the filing of an abuse of process/wrongful use of civil proceedings complaint against an attorney.

A tip of the hat to Matthew P. Keris, Esquire, of the Moosic, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Thursday, May 13, 2010

Another Post-Koken Trial Court Decision Out of Philadelphia County in Favor of Severance of Claims

I have been advised of another post-Koken Case out of the Philadelphia County Court of Common Pleas in favor of the severance of the Plaintiff's claims against the third party tortfeasor from the claims asserted against the UIM carrier.

In the case of Schramm v. McComb and Penn National Insurance and State Auto Insurance, No. 1002 03394 (Phila. Co. May 10, 2010 Tereshko, J.), Judge Tereshko granted the preliminary objections of the tortfeasor defendants and severed the third party claims from the UIM claims and ordered separate trials.

Anyone desiring a copy of this Order (without Opinion) may contact me at

Thanks to Attorney Chuck Daly of the Law Office of Charles J. Daly in Horsham, PA for bringing this case to my attention

Wednesday, May 12, 2010

Transcripts of Portions of Wiretaps from Luzerne County Judicial Scandal Released

In the May 12, 2010 Wilkes-Barre newspaper, the Times Leader, there are several articles regarding pre-trial motions being filed in the Luzerne County judicial scandal case. Also produced were portions of the transcripts from the wiretaps involving discussions by former Judge Michael T. Conahan and former Judge Mark A. Ciavarella.

To view the May 12, 2010 Times Leader article by Dave Janoski on the latest round of pre-trial motions, click on this link:

To view the transcripts of the wiretaps, click on this link:

Tuesday, May 11, 2010

Federal District Judge Thomas I. Vanaskie Sworn In As Third Circuit Court of Appeals Judge

As one attorney aptly put it, it was an all-around feel good day for the members of the bench and bar in Northeastern Pennsylvania.

On Monday, May 10, 2010 history was made when Judge Thomas I. Vanaskie was ceremoniously sworn into his spot on the Third Circuit Court of Appeals by Chief Judge Theodore A. McKee.

The event was held in Judge William J. Nealon's courtroom, the Judge for whom Judge Vanaskie served as a law clerk at the beginning of his career after he graduated from the Dickinson School of Law. An overflow crowd watch by closed circuit television in two other courtrooms in the Federal Courthouse in Scranton.

This historic event, with Judge Vanaskie being only the second jurist from Northeastern Pennsylvania to rise to such a high level (the other being the late Honorable Max Rosenn), was attended by political and judicial dignitaries, including but not limited to Senator Casey and Senator Specter, Representative Kanjorski and Representative Carney, various Judges from the Third Circuit Court of Appeals and the Middle District Federal Court as well as Judges from the Lackawanna and Luzerne County Court of Common Pleas.

After he was sworn in, Judge Vanaskie put on his new robe, took his spot on the bench, and proclaimed that the "American Dream is alive and well" with his rise from blue collar roots to what is now one step below the United States Supreme Court.

For more details on the ceremony, here is a link to an article by Boris Krawczeniuk in the May 11, 2010 Scranton Times:

Judge Vanaskie will maintain an office in the Scranton Federal Courthouse in his new position with the Third Circuit.

Monday, May 10, 2010

President Obama Nominates Kagan To U.S. Supreme Court

On Monday, May 10, 2010, President Obama announced that he was nominating Solicitor General Elena Kagan to the United States Supreme Court. If she is appointed she will be the youngest justice and would give the Court three female Justices for the first time ever.

Some background information on the nominee can be found in this link to a May 9, 2010 article by a Peter Baker and a Jeff Zeleny in the New York Times:

Sunday, May 9, 2010

Pike County Court Rules No Uninsured Motorist Coverage For Accident Caused by Debris on the Roadway

My partner, Attorney Tim Foley, and I were again successful in securing a summary judgment, this time in favor of State Farm in the somewhat novel Pike County Court of Common Pleas case of Adragna v. State Farm, No. 291-2009-Civil (Pike Co. May 5, 2010 Chelak, J.).

In Adragna, the claimant was pursuing an uninsured motorist claim under a State Farm policy based upon a single car motor vehicle accident allegedly caused when the claimant swerved and lost control of her vehicle during an effort to avoid debris on the roadway in the form of large bundles of insulation that allegedly blocked the travel lanes of the highway.

The State Farm policy allowed for coverage for injuries caused to an insured by the operator of an uninsured motor vehicle. More specifically, the policy provided that uninsured motorist coverage would be provided for bodily injuries "caused by an accident that involves the ownership, maintenance, or use of an uninsured motor vehicle as a motor vehicle."

This Pike County action involved a declaratory judgment action filed by my office on behalf of State Farm and sought a judicial declaration that uninsured motorist coverage need not be provided under the facts presented in that the accident was not caused by the operation of an uninsured motor vehicle, but rather was caused by debris on the roadway.

The injured party in Adragna argued that she was entitled to uninsured motorist coverage under her own policy because there could be no other explanation for the bundles of insulation being on the roadway other than that they must have fallen off of a vehicle and, therefore, the claimant's accident was caused by a phantom vehicle that had left the scene.

However, through discovery efforts, including a deposition of the injured party, the defense established that the injured party had no personal knowledge as to how the bundles came to be on the roadway, had no witnesses, and had no other evidence from any source to explain the location of the bundles of insulation on the highway at the time of her accident.

In her post-deposition affidavit filed in response to the defense motion for summary judgment, it was again asserted by the claimant that, since there was no construction or any other activity in the area that could explain the presence of the debris on the roadway, the bundles must have come from a vehicle, thereby entitling her to coverage.

The defense countered with the argument that, even if it were accepted that the debris had been deposited on the roadway by or from another vehicle, such allegations were not sufficient to satisfy the requirements of the State Farm policy for uninsured motorist coverage to apply. Judge Chelak of the Pike County Court of Common Pleas agreed.

At the beginning of his analysis, Judge Chelak generally noted that "[a]utomobile insurance policies in general, and uninsured motorist provisions in particular, 'are designed to compensate victims for vehicle-caused injuries.'" [citation omitted].

The judge found the State Farm policy language to be clear and unambiguous in its requirement that coverage would only be provided for injuries caused by the use or maintenance of an uninsured motor vehicle "as a vehicle."

Reviewing the caselaw cited by the defense in its moving papers, the Pike County court agreed that both the Superior Court of Pennsylvania and the federal courts have held that debris on the roadway that originated from, or were caused by, a vehicle to come upon the roadway did not trigger coverage.

More specifically, in the case of Smith v. USAA, 572 A.2d 785, 787 (Pa.Super. 1990), no coverage was found in a case where a passenger on a hay wagon threw hay at a person who was caused to crash his bike into a tree as a result.

In American National Prop. & Cas. Co. v. Terwillinger, 2007 WL 433180, 2007 U.S. Dist. LEXIS 9018 (W.D.Pa. 2007), the court found that an accident caused by debris on the road in the form of a loose gravel mixture that another motor vehicle caused to be on the road could not be considered as an accident involving another vehicle as a vehicle. As such, no coverage was found in that case.

Judge Chelak noted that, in each of the cases noted above, as well as in this new Pike County decision, the injured parties' injuries were all caused by the debris itself, i.e. by a source which is external to the vehicle, and not by the vehicle itself. Judge Chelak emphasized that, even though it was known in Smith that the hay was thrown from a vehicle, and even though it was known in Terwillinger that the loose gravel had been deposited on the road by another vehicle prior to the accident, no coverage was found in those cases because the accidents were caused by sources external to the vehicle.

As such, Judge Chelak held that, even if the injured party's presumption in Adragna that the debris in the form of insulation bundles must have come from a vehicle was accepted as true, it did not matter. The injuries would still be deemed to have been caused by the debris and not by another vehicle.

Judge Chelak went on to state that the Smith and Terwillinger cases, when read together, stand for the rule of law that "when foreign material on a roadway causes a motor vehicle accident, an uninsured or underinsured motorist provision in an injured claimant's automobile insurance policy does not provide coverage for the loss."

Accordingly, Judge Chelak held that, since the claimant in Adragna was not entitled to uninsured motorist coverage under the facts presented, State Farm was entitled to a summary judgment in this declaratory judgment action.

Anyone desiring a copy of the Opinion of the Pike County Court of Common Pleas in this case of Adragna v. State Farm may contact me at

The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Friday, May 7, 2010


Please be reminded that down in the right-hand column of this blog is the POST-KOKEN SCORECARD, where I have compiled the post-Koken cases, on various issues, that I have been able to uncover to date.

Please note that this compilation may NOT be exhaustive and there may be other cases out there. I would appreciate being notified of any other post-Koken cases you may be aware of, or may uncover in the future, so that they can be publicized and the bench and the bar can continue the effort to create a consistent common law in this area.

Note that the Post-Koken Scorecard was recently updated with the recent cases out of Philadelphia County in favor of the severance of the third party claims from the UIM claims, thereby furthering the split of authority on that issue in that County Court of Common Pleas alone. Also added to the list of the cases was the recent case of first impression Wabby decision by Judge Munley of the Federal Middle District Court on removal to federal court/remand to state court issues.

Tort Talk Breaks Through To Over 300 Email Subscribers

Tort Talk continues to grow and now has over 300 email subscribers. I thank all of you who have subscribed and spread the word.

Please do not hesitate to contact me should I be able to provide you with a copy of the decisions noted in the prior post or help you any other way that I can on any matters you may have pending in Northeastern Pennsylvania whether it be as local counsel or even something as simple as answering any questions regarding local rules and procedures.

Thanks again.

Link to Legal Intelligencer Article on Amicus Win

Here's a link to a Legal Intelligencer article covering the Superior Court's decision on my recent amicus win on behalf of the Pennsylvania Defense Institute:

Quote too harsh? Naaaahhh.

The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Thursday, May 6, 2010

More Post-Koken Philadelphia County Trial Court Decisions in Favor of Severance

Here are two more post-Koken decisions granting the third party tortfeasors' preliminary objections and ruling in favor of the severance of third party claims from the UIM claims filed under a single caption/lawsuit:

Astillero v. Harris and State Farm, August Term 2009, No. 1580 (Phila. Co. Dec. 11, 2009 Fox, J.)(Order states claims are severed "for purposes of trial only" presumably meaning claims may proceed together in discovery phase).

Morawski v. Dunleavy and State Farm, October Term 2009, No. 03493 (Phila. Co. April 26, 2010 Overton, J.)(third party claims and UIM claims severed for all purposes, not just for trial purposes).

Thanks to Attorney Beth Carter of the Philadelphia law firm of Bennett, Bricklin & Saltzburg for bringing these Orders to my attention.

Anyone desiring a copy of these Orders (without Opinions), may contact me at

Case of First Impression on Standard of Review for Removal/Remand in Federal Court Post-Koken Case

In a case of first impression, Judge James M. Munley, of the United States District Court for the Middle District of Pennsylvania issued an April 27, 2010 Memorandum Opinion in the post-Koken case of Wabby v. State Farm Mutual Automobile Insurance Company, No. 3:09cv2449 (M.D. Pa. 2010, Munley, J., mem. op.), in which he delineated the standard of review on a motion to join a party in a case that has been removed to the federal court where such a joinder may serve to destroy the diversity of citizenship necessary for federal court jurisdiction.

In this post-Koken case, the Plaintiffs originally filed a negligence action against a tortfeasor in the Schuylkill County Court of Common Pleas. Approximately 16 months thereafter, the Plaintiffs filed a separate civil suit against State Farm, the Plaintiffs’ uninsured motorist carrier. The suit against State Farm was also filed in the Schuylkill County Court of Common Pleas.

The claims against State Farm included a contract action for the recovery of uninsured motorist benefits as well as a bad faith claim.

State Farm removed the case against it to the Middle District federal court. Thereafter, the Plaintiffs filed a motion in the federal court to join the tortfeasor, a non-diverse Defendant, in the federal matter. In conjunction with that motion to join, the Plaintiffs also filed a motion to then remand the entire federal court matter back to the state court, under the argument that the joinder of the tortfeasor would destroy the diversity necessary to support federal jurisdiction.

Judge Munley noted that, since the Plaintiffs were seeking to join a non-diverse Defendant in the federal court matter, the Motion to Join must be analyzed under 28 U.S.C. §1447(e) (“If after removal the Plaintiff seeks to join additional Defendants whose joinder would destroy subject matter jurisdiction, the Court may deny joinder, or permit joinder and remand the action to the State Court”).

Judge Munley noted that “[t]he United States Court of Appeals for the Third Circuit has not established how a district court should apply §1447(e).” Reviewing the law of other federal district courts, Judge Munley went on to “adopt” the Fifth Circuit’s standard of review on §1447(e) motions as set forth in the case of Hensgens v. Deere, Co., 833 F.2d 1179, 1182 (5th Cir. 1987).

The Fifth Circuit’s analysis in Hensgens balances “the Defendant’s interests in maintaining the federal forum with the competing interests of not having parallel lawsuits.” Under this analysis, the Fifth Circuit noted that a federal district court should examine the following factors:

(1) The extent to which the purpose of the amendment is to defeat federal jurisdiction,

(2) Whether Plaintiff has been dilatory in asking for amendment,

(3) Whether Plaintiff will be significantly injured if amendment is not allowed, and

(4) Any other factors bearing on the equities.

Hensgens, 833 F.2d at 1182.

Judge Munley also noted in his decision that federal courts are courts of limited jurisdiction and that there is a general presumption in favor of state jurisdiction. As part of his analysis, Judge Munley also stated that, in the removal context, the applicable statutes are strictly construed against removal and all doubts are resolved in favor of remand wherever possible.

Analyzing the Plaintiffs’ Motion to Join and Remand in accordance with the Fifth Circuit’s standard of review, Judge Munley found that, since the Plaintiffs’ intent in seeking joinder and remand was to reduce litigation costs and conserve judicial resources, rather than to prevent federal jurisdiction or to delay the case, the Plaintiffs’ Motion to was granted. As such, the non-diverse tortfeasor was joined in the federal action and, as a result, the entire federal action was then remanded back to the state court of the Schuylkill County Court of Common Pleas.

Anyone desiring a copy of this decision may contact me at

Wednesday, May 5, 2010

New Westlaw Citation for Recent Trial Court Opinion on Stacking UIM Benefits

Here is the new Westlaw citation for the recently noted Venango County Court of Common Pleas decision Heller v. State Farm, 2010 WL 1778629 (Venango Co. 2010 Boyer, J.) in which the trial court clarified certain issues involving inter-policy stacking in UIM cases. The decision also provides an excellent explanation the interplay of the Pennsylvania Supreme Court's decisions on this issue in the Craley and Generette decisions.

The Tort Talk post summarizing this case can be viewed at

Sentencing Dates Set for Former Judge Michael Conahan and Former Judge Michael Toole

According to a May 5, 2010 Times Leader article by Terrie Morgan Besecker, Federal Middle District of Pennsylvania Judge Edwin Kosik has set down a July 23, 2010 sentencing date for former Luzerne County Judge Michael Conahan. Conahan recently entered into a plea agreement pertaining to one conspiracy to racketeering charge, which implicates the federal honest services fraud statute.

The hope is that the United States Supreme Court will issue a ruling on the validity of the federal honest services fraud statute prior to the sentencing date. The statute provides that a person commits the crime of honest services fraud if the person engages in a scheme or artifice to defraud that would “deprive another of the intangible right to honest services.” The statute is currently under attack as being vaguely worded and, therefore, unconstitutional. It is expected that the United States Supreme Court will issue its ruling sometime in June.

The need for this Supreme Court ruling has also been the cause of delay in terms of a sentencing date for former Judge Michael Toole, who pled guilty to a fraud charge that also implicates the federal honest services fraud statute. Presently, Judge Toole has a sentencing date of June 24, 2010.

Tuesday, May 4, 2010

SAVE THE DATE - Wednesday, August 18, 2010 PDI/NEPATLA CLE Seminar at Mohegan Sun

On Wednesday, August 18, 2010, the Northeastern Pennsylvania Trial Lawyers Association and the Pennsylvania Defense Institute will combine to put on a CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

The program is geared for plaintiff's attorneys, insurance defense attorneys, and claims professionals.

There will be three one hour presentations - an Auto Law/Post-Koken Update, a Bad Faith Update, and an Ethics hour with a panel of Judges (Third Circuit Court of Appeals Judge Thomas I. Vanaskie, Lackawanna County Judge Terrence R. Nealon, and Luzerne County President Judge Thomas Burke). I will be one of the presenters of the Auto Law/Post-Koken Update.

The seminar will be followed by a Happy Hour at the Breakers bar in the casino. More details to follow at a later date.

Anyone desiring a registration form may contact me at Hope to see you there!

Pennsylvania Supreme Court Denies Appeal in O'Hara v. Liberty Mutual

The Tort Talk faithful may recall that one of the post-Koken cases being followed on this blog is O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938 (November 9, 2009, Judges Freedberg, Cleland and Kelly) in which the Superior Court upheld the UIM carrier's forum selection clause requiring a post-Koken UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident.

I have just been tipped off that the Pennsylvania Supreme Court has issued a one line Order denying the Plaintiff's appeal from the Superior Court's decision. See O'Hara v. The First Liberty Ins. Corp., 2010 WL 1752268, 39 EAL 2010 (May 4, 2010).

As such the Superior Court's holdings that, (1) the Liberty Mutual forum selection clause was clear and unambiguous and (2)that such clauses are not unenforceable as a matter of public policy, remains the law of the land in Pennsylvania.

I have a copy of the order if anyone wants it, but again, it is only a one line Order simply denying the appeal. I can be reached at

Thanks again to Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this Order to my attention.

Judge Thomas I. Vanaskie To Be Sworn In As Third Circuit Court of Appeals Judge on Monday//Lackawanna Bar Members Are Invited To Attend Reception

The Honorable Thomas I. Vanaskie is set to be sworn in as a United States Third Circuit Court of Appeals Judge on Monday, May 10, 2010 at 12:30 p.m. in Courtroom No. 4 of the William J. Nealon Federal Building & U.S. Courthouse in Scranton, Pennsylvania.

There will be Reception to follow in Second Floor Atrium sponsored by the Lackawanna Bar Association. This event is free and open to the members of the Lackawanna Bar Association.

However, registration is required to attend. Please RSVP to Diane McClosky at 207-5606 by Thursday, May 6, 2010. Lackawanna Bar Association members who plan to attend are cautioned to arrive by 12:00 p.m. to clear security.

Lackawanna County Bar Association To Host Third Annual Interfaith Prayer Service

The Lackawanna Bar Association will be hosting the Third Annual Interfaith Prayer Service set to take place on Friday, May 14, 2010 at noon in Shopland Hall in the Scranton Cultural Center.

There will be a keynote address by Judge John E. Jones III of the U.S. District Court of the Middle District of Pennsylvania. In addition, there will be prayers and readings presented by members of the Lackawanna Bar Association along with participation by leaders of various faiths.

The event will be followed by a light lunch. Note also that Lackawanna Bar Association members who attend the event will be entitled to one (1) free ethics hour CLE credit.

RSVP to Karlina at the Bar Association at (570) 969-9161 or by Tuesday, May 11, 2010.


Tort Talk is a year old today!! It was a year ago today that I sat down to write the first post to this blog. The number of email subscribers to the blog started out as a handful and now stands at close to 300 subscribers, a number which does not include those who have marked down the blog as one of their "favorites."

In that first post, I noted that the "purpose" of Tort Talk would be to highlight trends and note important decisions in Pennsylvania civil litigation law. I also noted an intention to periodically attempt to offer practice tips. Last but not least, through this blog I hoped to "also be able to bring to the attention of others little heard developments or verdicts occurring in the courts in the counties that make up Northeastern Pennsylvania" or elsewhere in Pennsylvania.

My hope was, and continues to be, that you will find this blog not only informative but entertaining at times and worthy of returning to on occasion for civil litigation updates.

I send my great thanks to all who have enjoyed Tort Talk and who have spread the word on the blog. As an expression of my gratitude, I hope to continue to bring you civil litigation updates in a clean, tight, and, at times, a hopefully entertaining manner.

Monday, May 3, 2010

Pennsylvania Superior Court Holds That Excess/Umbrella Policies Are To Be Included in Calculating Credit Due In UIM Cases

In a monumental Opinion handed down on April 30, 2010, the Pennsylvania Superior Court ruled in D'Adamo v. Erie Insurance Exchange, 2010 PA.Super. 77 (Pa.Super. 2010 Gantman, J.), that both a tortfeasor's automobile insurance liability coverage as well as his separate personal umbrella policy should be considered in determining the credit due to an underinsured motorist benefits (UIM) carrier in a UIM claim.

In D'Adamo, a consolidated case involving two injured husband and wife couples who were in the same vehicle at the time of the accident, the UIM Arbitration panel determined that each of the couples was entitled to a gross award of $850,000.00 per couple.

At issue before the court was the denial by Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas of the injured parties' motion to vacate/modify the arbitration award to disallow the credit in the amount of the umbrella policy limits. The injured parties attempted to argue that the offset or credit due to the UIM carrier should not include the tortfeasor's coverage from non-automobile insurance policies such as the umbrella policy owned by the tortfeasor.

According to the Opinion, the applicable Erie policy had an exhaustion clause that provided, in pertinent part: as follows:
"When the accident involves underinsured motor vehicles, we will not pay until all other forms of insurance under all bodily injury liability bonds and insurance policies and self-insurance plans applicable at the time of the accident have been exhausted by payment of their limits or have been resolved by settlement or by final resolution of the court."

The Pennsylvania Superior Court rejected the arguments by the injured parties that (1) the Erie insurance exhaustion clause was ambiguous when compared to the mandates of Pennsylvania's Motor Vehicle Financial Responsibility Law, and (2) the argument that including umbrella policies as part of the exhaustion clause would violate the public policy of Pennsylvania in this context.

In D'Adamo, each couple had already received the $250,000.00 limits under the tortfeasor's automobile policy and $500,000.00 in limits from the tortfeasor's personal umbrella policy, i.e. a total of $750,000.00 in available limits for the tortfeasor.

The Superior Court therefore ruled that, pursuant to the exhaustion clause, the arbitration panel was correct in applying a $750,000.00 credit to the $850,000.00 gross award. As such, the trial court's denial of the motion to vacate/modify the arbitration award was affirmed.

Anyone desiring a copy of the decision may contact me at Thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this case to my attention.

Continuing Decline in Medical Malpractice Suits In Pennsylvania

According to an April 27, 2010 article in the Pennsylvania Law Weekly, medical malpractice case filings and verdicts in 2009 revealed a drop in the number of suits filed against health care providers in Pennsylvania. The numbers, secured from the Pennsylvania Supreme Court, dropped for the fifth straight year.

More specifically, the article noted that there were 1,533 such filings in 2009, which was a 43.9 percent decline from the base years used of 2002-2003.

Some have attributed the decline in the number of cases to the rule requiring plaintiff's to produce a certificate of merit regarding the case before being allowed to pursue the case. Another factor cited was the efforts by the courts to prevent forum shopping by plaintiffs.

Federal Middle District Court Judge Caputo Reviews Value of Emotional Distress Claims

In the recent case of Dee v. Borough of Dunmore, Slip Copy, 2010 WL 1626908 (M.D.Pa. April 21, 2010 Caputo, J.), U.S. Federal District Court Judge A. Richard Caputo of the Middle District of Pennsylvania granted a defendant's motion to reduce a plaintiff's emotional damages award and found that the plaintiff, who had no "long-lasting effects" from a brief period of emotional trauma is not entitled to anything more than $50,000 in compensation for that injury.

The case stemmed from a suit by a plaintiff who alleged that he was improperly suspended without any hearing from his post as an assistant fire chief when borough officials allegedly incorrectly concluded that the plaintiff lacked the necessary qualifications for the position.

Judge Caputo noted that the evidence showed that the plaintiff suffered emotional distress and an elevated blood pressure "for at least a few days" following the suspension.

The judge reviewed other similar emotional distress cases and noted that, where there is some emotional distress without lasting effects established in the case, the average award allowed by the courts was approximately in the range of $50,000.

Turning back to the facts of the Dee case, Judge Caputo found that the jury's award of $150,000 was "shocking to the judicial conscience," particularly where there was no evidence that the plaintiff changed in any lasting way, where it was confirmed that the plaintiff's blood pressure returned to a normal range within a few days, and where the plaintiff was allowed to continue with his employment with the fire department after only nine (9) days on suspension.

In addition to the Westlaw citation above, a copy of this case can be secured, for a small fee, by contacting the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving them the PICS Case No. 10-1762.

Sunday, May 2, 2010

A Clarifying Opinion Out of Venango County on Inter-Policy Stacking in UIM Cases

Judge Robert L. Boyer of the Venango County Court of Common Pleas recently issued an April 24, 2010 Opinion and Order in the case of Heller v. State Farm, No. 408-2008 (Venango Co. 2010 Boyer, J.) that serves to clarify certain issues involving inter-policy stacking in UIM cases. The decision also provides an excellent explanation the interplay of the Pennsylvania Supreme Court's decisions on the issue in the Craley and Generette decisions, a topic that still hurts when I try to wrap my head around it.

As explained by Judge Boyer, intra-policy stacking involves one automobile insurance policy that covers multiple vehicles. An insured can pay a higher premium to purchase the stacking option, which enables the insured to increase the amount of coverage that he or she can receive in the event of an accident by totaling the UIM coverage for each vehicle on the policy.

For example, in the Heller case, the injured party had a stacked policy with Erie on three vehicles. The policy provided for $15,000 in UIM coverage. Since there were three vehicles under this one policy and since stacking was purchased, the injured party had $45,000 in UIM benefits potentially recoverable in the event of an accident.

The Heller court noted that, in Craley v. State Farm, 895 A.2d 530 (Pa. 2006), the Pennsylvania Supreme Court recognized another form of stacking which came to be known as inter-policy stacking. Inter-policy stacking occurs when a single insurance company has issued multiple policies covering separate vehicles in a household.

To illustrate, Craley involved a claimant who was killed in an auto accident. The Claimant's husband attempted to recover both under a State Farm policy that had been issued to the deceased claimant on one vehicle in the household as well as under a separate policy that had been issued by State Farm to the husband on his separate vehicle.

The decision in Craley had to do with the fact that both of the State Farm policies included a waiver of the stacking option executed by the insureds. In addition to recognizing the concept of inter-policy stacking, the Craley court also held that the waiver of stacking was valid in both intra-policy and inter-policy situations. It was therefore determined in Craley that, since stacked coverage was waived, a UIM recovery was only available under the decedent's insurance policy and not the husband's separate policy with the same carrier.

In the Heller case before Judge Boyer, the injured party had a State Farm policy that provided for non-stacked UIM coverage of $100,000. The Plaintiff also had a separate policy with Erie Insurance covering three vehicles with stacking UIM coverage of $15,000, i.e. a total of $45,000 in benefits available.

Erie tendered its $45,000 in UIM benefits to the injured party. State Farm then attempted to limit its exposure pursuant to its "Other Insurance" clause, which provided that, where the injured party had UIM coverage available from more than one policy, regardless of whether the other policies were provided by State Farm or another carrier, the injured party would be limited to the amount of the highest UIM policy limit among all of the available insurance policies.

Since the highest UIM policy limit at issue in Heller was the $100,000 limits in the State Farm policy, State Farm believed that, pursuant to its "Other Insurance" clause, it was correct in only having to pay another $55,000 above the $45,000 paid by Erie (i.e. $45K + $55K = the $100K highest policy limit).

Judge Boyer agreed with State Farm in Heller and, in doing so distinguished the plaintiff's strong reliance upon the case of Generette v. Donegal, 957 A.2d 1180 (Pa. 2008).

In Generette, the claimant was injured while riding as a guest passenger in a vehicle. The injured party recovered under the liability policy that covered the tortfeasor's policy and also obtained a tendering of the Nationwide $50,000 UIM policy limits covering the vehicle in which she was located at the time of the accident.

The injured party in Generette then turned to Donegal Insurance to recover the additionally available $35,000 in UIM limits she had purchased for herself on her own separate personal vehicle. The facts of that case confirmed that the injured party had waived the stacking option under her own policy.

Like the State Farm policy in Heller, the Donegal Insurance Company policy in Generette contained an "Other Insurance" clause, which implemented the waiver of stacked UIM benefits. In Generette, Donegal Insurance refused to pay any benefits under this clause, which like the clause in the State Farm policy in Craley, provided that the UIM carrier's maximum exposure across multiple, applicable insurance policies was the highest policy limit stated in any of the policies.

Since the Nationwide Insurance policy had the highest available limits of $50,000 and since those limits were already paid by Nationwide, Donegal refused to pay any of its lesser amount of $35,000 in available UIM benefits under an application of the "Other Insurance" clause.

In Generette, the Pennsylvania Supreme Court rejected Donegal Insurance's position as being in violation with the public policy of Pennsylvania. First, after a lengthy discussion of the procedural history and statutory definitions, the Generette court rejected Donegal's argument that the injured party was unable to recover on the basis that she had rejected stacking. The Court in Generette determined that Section 1738 of the Motor Vehicle Responsibility Law (MVFRL), which only expressly allows an "insured" to waive stacking, did not apply in this case because guest passengers were not "insureds" as that term is defined in the MVFRL.

After ruling that the injured party was not barred from recovering by her waiver of the stacking option, the Generette Court then turned to the question of whether Donegal's "Other Insurance" clause served to preclude a recovery.

The Court in Generette found that the "Other Insurance" clause, in this context, violated the public policy mandating that UIM coverage be excess coverage rather than gap coverage. In other words, an application of the "Other Insurance" clause in this scenario would have prevented the injured party from securing the very excess insurance coverage she had paid premiums for in the event that she was injured by a tortfeasor with inadequate insurance coverage.

As such, the Supreme Court found that, in the context of Generette, the "Other Insurance" clause violated public policy and could not be utilized by Donegal Insurance to limit the injured party's recovery.

Turning back to the case before him, Judge Boyer noted that, while the facts presented in the Heller case were similar to those in the Generette case, the simiarities did not reach the level to where Generette had to be followed as binding precedent.

Most importantly, Judge Boyer noted that, whereas in Generette the Court held that the waiver of stacking was not valid in the case of a guest passenger who did not meet the definition of an "insured," in Heller the injured party was identified by name on the subject policy and, therefore, was an "insured" under the MVFRL who could validly waive stacking.

The Heller court went on rationalize that the valid waiver of coverage was the key distinction from the Generette case. Judge Boyer ruled that, to then find State Farm's "Other Insurance" clause to be a violation against public policy in spite of a valid waiver of stacking, would require him to rewrite the MVFRL, an option he refused to undertake.

Judge Boyer concluded his Opinion by noting that, in passing the MVFRL, the Pennsylvania Legislature attempted to contain the spiraling costs of automobile insurance by adopting provisions such as the waiver of stacking statute. The Heller court ruled that, by waiving stacking, the injured party paid a lower premium to receive a maximum of $100,000 in UIM coverage under the application of the "Other Insurance" coverage. Accordingly, the court held that State Farm acted properly in only paying $55,000 out of its available $100,000 in UIM policy limits under the facts presented.

Anyone desiring a copy of this trial court opinion out of Venango County may contact me at

I thank the prevailing defense attorney in the Heller case, Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this enlightening case to my attention.