Wednesday, June 30, 2010
In a twist, it was the UIM carrier in this matter that filed the preliminary objections seeking the severance. Ordinarily, it is the third party tortfeasor defendant that files the preliminary objections, primarily to avoid being lumped together in a trial with an insurance company.
In the Order, Judge Loughran cited, as support for his decision, the Butler County case of Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(Court orders UIM claim and third party claim severed)(Judge Horan more recently issued another Order in this case denying Plaintiff's Motion for Reconsideration of the court's decision ordering the claims severed. The Judge did amend her Order to allow discovery on the UIM and tort claims to proceed concurrently. It was indicated to me that no party objected to this request pertaining to the discovery.).
The split of authority in the trial courts continues to grow on this important issue. By my count, there are at least 22 cases in favor of consolidation and 18 cases in favor of severance across the Commonwealth.
This case will be added to the Post-Koken Scorecard, which can be accessed by the link down on the right-hand column of Tort Talk.
Thanks to Attorneys Phillip Earnest and Amy M. Kirkham of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this case to my attention. Anyone desiring a copy of this Order without Opinion may contact me at firstname.lastname@example.org.
Thanks to Attorneys Phillip Earnest and Amy M. Kirkham of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP, I now have a copy of that Order without Opinion if anyone needs it. I can be reached at email@example.com.
Tuesday, June 29, 2010
First, the PLRB/LIRB wishes to utilize Tort Talk as part of their real-time opt-in email service to provide their nationwide members with the latest breaking case law on a twice a week basis.
Also, the group has requested me to be a co-presenter on the topic of "Auto Policy 101" at next year's national Claims Conference set to be held in Nashville, Tennessee on April 3-6, 2011.
I guess I'll have to start brushing up on my country music knowledge beyond the "Devil Went Down to Georgia" by the Charlie Daniels Band which I know from Guitar Hero.
Monday, June 28, 2010
The plaintiff was injured in the use of the resort's ski lift, The plaintiff had previously signed a waiver that released Hidden Valley Resort from "all the risks of skiing and boarding," which included "the use of lifts," and applied "regardless of any negligence" on the part of the resort or its employees.
The Pennsylvania Supreme Court ruled that the waiver did not amount to a contract of adhesion as the plaintiff was free to choose whether or not to engage in the skiing activity. The Court also rejected the argument by the injured party that the waiver was invalid due to the failure to specifically define the word "negligence" in the document.
Click here to view Chief Justice Castille's Opinion of the Court: http://www.aopc.org/OpPosting/Supreme/out/J-6-2008mo.pdf.
Click here to view Justice Saylor's Concurring Opinion: http://www.aopc.org/OpPosting/Supreme/out/J-6-2008co.pdf
Click here to view Justice Baer's Concurring Opinion: http://www.aopc.org/OpPosting/Supreme/out/J-6-2008co2.pdf
I send thanks to Attorney Matt Keris of the Moosic, Pennsylvania office of Marshall, Dennehey, Coleman, Warner & Goggin for bringing this decision to my attention.
Saturday, June 26, 2010
My goal was to make it more coherent and "readable." Have I succeeded? The link to the Scorecard is down on the right hand column of the blog. If you are willing and able, please check it out and leave a comment down at the bottom of the post. In the alternative, please shoot me an email with any suggestions you might have to improve the page. My email is firstname.lastname@example.org.
In the meantime, please keep those post-Koken decisions coming. I think it is important that these trial court decisions be publicized in order to assist the bench and bar in trying to develop a consistent common law on the novel issues presented.
As will be emphasized in the upcoming Law Weekly articles, there have been instead splits of authority developing on many of the important issues in this arena giving rise to an ever-increasing need for appellate guidance.
Friday, June 25, 2010
In its ruling, with the majority opinion being written by Justice Ruth Bader Ginsburg, the Court narrowed the scope of the "honest services" criminal fraud statute to only properly cover bribes and kickbacks, rather than the wide range of illegal and/or questionable activities prosecutors have been using the law to punish allegedly less than honest defendants. Five concurring opinions were written and Justice Clarence Thomas dissented.
A copy of the Supreme Court's Opinion in Skilling can be viewed by clicking this link: http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf.
The impact of this decision on the prosecutions and investigations in the political and judicial scandals across the Commonwealth of Pennsylvania remains to be seen. Here is a link to an article by Dave Janoski of Scranton's The Times Tribune on how this decision may impact the ongoing political and judicial prosecutions and investigations in Northeastern Pennsylvania: http://thetimes-tribune.com/supreme-court-decision-raises-hurdles-for-prosecuting-corruption-cases-1.863589.
Thursday, June 24, 2010
Jenkins v. State Farm, G.D. 07-020234 (Alleh. Co. Sept. 9, 2009 Wettick, J.)(Motion to stay and sever granted in UIM/Bad Faith case).
Marburger v. Erie Ins. Exchange, 2009-Civil-10927 (Butler Co. June 19, 2009, Horan, J.)(Motion to Sever and Stay on behalf of Erie granted; court precluded plaintiffs from conducting any bad faith discovery until further Order of court and permitted severance and stay of plaintiff's bad faith action pending resolution of UIM claim).
I secured a copy of the Jenkins decision from Attorney Earnest and am waiting to see if he can locate a copy of the Marburger decision. Anyone desiring a copy of the Jenkins decision may contact me at email@example.com.
I send thanks to Attorney Phillip R. Earnest for putting on an excellent seminar, making me aware of these other post-Koken cases successfully handled by his office, and for providing me copies of the decisions.
Tuesday, June 22, 2010
In Firoozifard, the court treated the tortfeasor defendant's Preliminary Objections as a Motion to Sever under Pa.R.C.P. 213(b) since it did not appear that the defendant was arguing that the Complaint violated the applicable permissive joinder rules under Pa.R.C.P. 2229(b).
Rather, the tortfeasor defendant was solely arguing that, by virtue of the joining of the negligence claim against him with the UM and UIM claims against the insurance company, evidence concerning the tortfeasor's automobile insurance would be introduced into the case at trial in violation of Pa.R.E. 411 (prohibiting evidence of insurance in negligence matters). The tortfeasor defendant argued that this scenario required that the claims be severed. Judge Beltrami disagreed.
Judge Beltrami wrote that while Pa.R.E. 411 states that evidence that a person did or did not have liability insurance is not admissible on the issue of whether that person acted negligently, the same rule also states that evidence of liability insurance is not required to be excluded when such evidence is "offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness." See Pa.R.E. 411.
The court in Firoozifard noted that, in this context, evidence of the tortfeasor defendant's insurance coverage would not be offered in any way to establish his negligence, but rather "to establish State Farm's contractual duty to provide UIM benefits to Plaintiff, as State Farm is entitled to a credit in the amount of [the tortfeasor's] coverage before it is required to pay damages to Plaintiff under its policy." Accordingly, the court ruled that severance was not required by an application of Pa.R.E. 411.
Judge Beltrami also rejected the tortfeasor's argument that the introduction of evidence pertaining to the tortfeasor's liability insurance would be prejudicial and would fail the balancing test required by Pennsylvania Rule of Evidence 403, pertaining to the relevancy of evidence. Rule 403 states that evidence may be excluded if its probative value is outweighed by "the danger of unfair prejudice."
The court stated that evidence of the tortfeasor's liability insurance was "clearly probative" or relevant to determining State Farm's contractual duty to pay UIM benefits to the Plaintiff.
The tortfeasor argued that the admission of evidence pertaining to his liability coverage was "prejudicial in that it may cause the jury to shirk their responsibility as finders of fact and instead recklessly award damages they presume will be paid by an insurance company."
Judge Beltrami noted that severance was still not required as the danger of any potential prejudice to the tortfeasor could be "eliminated" by steps taken by the court at trial.
For example, the judge noted that the caption could be presented to the jury in a fashion that prevents State Farm from being identified. He also noted that "the trial judge can also require evidence of [the tortfeasor's] insurance to be presented outside the presence of the jury to be used solely for the purpose of molding the jury's verdict."
The court concluded its analysis by also acknowledging that keeping all of the claims of this post-Koken case together in a consolidated fashion "will save judicial resources, avoid unnecessary delay and expense, and guard against inconsistent verdicts."
For these reasons, Judge Beltrami held that the tortfeasor defendant's motion to sever should be denied.
I will add this case to the Post-Koken Scorecard in short order. This synopsis of the post-Koken cases may be accessed at any time by clicking on the link to it down on the right hand column of this blog. Please be reminded that this compilation of post-Koken cases, while thorough, may not be an exhaustive listing of all of the decisions that may be out there. I can state that I am still unaware of any appellate decision addressing this issue.
Also, keep an eye out for my next two articles in the Pennsylvania Law Weekly which will review the cases handed down on this issue around the Commonwealth. The first article, set to appear next week will review the "ordinary" post-Koken cases involving third party claims and UIM claims. The second article will appear next month and will cover this issue in post-Koken cases involving bad faith claims.
If you are a "Tort Talker" who has been following Tort Talk all along, these articles will probably sound like old news to you and will hopefully give you a sense and good feeling that you are on top of the law in this context.
Anyone desiring a copy of the Firoozifard Opinion and Order summarized above may contact me at firstname.lastname@example.org.
I thank Attorney Ed Shaughnessy of the Law Office of Edward P. Shaughnessy in Easton, Northampton County, Pennsylvania for forwarding this case to my attention.
Friday, June 18, 2010
The Plaintiff in this matter was a passenger in a car with three other claimants. She had previously settled her claim against the tortfeasor and, in this matter, was pursuing a UIM claim against the UIM carrier along with bad faith claims concerning the carrier's handling of the file and failure to pay.
The underlying issue that was involved with this Court Order pertained to the Plaintiff's desire to secure the insurer’s entire investigative file for the Plaintiff’s claim and for the three other passengers’ claims, as well as the deposition of the adjuster assigned to all four claims.
Encompass, which was the UIM carrier, objected to the requests in their entirety, citing Judge Wettick’s decisions in 2009 in Gunn v. Nationwide and Wutz v. Smith. The Plaintiff moved to compel production of the files and the deposition of the claims rep. Encompass responded and cross-moved for a protective order staying discovery as to the bad faith and consumer fraud claims and/or severing the UIM claim from the bad faith and consumer fraud claims.
According to defense counsel, Encompass argued that the court should follow the decisions from Judge Wettick holding that requiring the early production of the bad faith claims would essentially provide the defense’s playbook for negotiation and trial of the companion UIM claim.
The discovery master agreed and the trial court entered our requested an Order that precluded the deposition of the Encompass claims representative.
The Court's order also struck the Plaintiff's written discovery requests to the extent "they request[ed] information and documents concerning the valuation and handling of plaintiff's claim and claims other than plaintiff's, and the procedures, strategy, and tactics for handling plaintiff's claim and claims other than the claim of plaintiff Dininni, which are not to be discoverable until the underlying UIM claims are settled, tried or otherwise resolved."
The Court order additionally provided that discovery concerning the Bad Faith Claim and the Unfair Trade Practices Claim were stayed pending the resolution of the UIM claim.
However, the Court denied the request of Defendant Encompass that the Bad Faith Claim and the Unfair Trade Practices Claim be severed and dismissed from the UIM claim without prejudice to the right of the Plaintiff to refile those claims in a separate action.
The prevailing defense counsel in this matter was Attorney Frank Guarrieri of the Morrisville, Pennsylvania law firm of Curtin & Heefner, LLP. I send thanks to Attorney Joseph F. Kampherstein, III of the same firm for bringing this case to my attention.
Anyone desiring a copy of this Order without Opinion may contact me at email@example.com.
Thursday, June 17, 2010
Each seminar is expected to provide excellent updates on the law, great opportunities to network, and refreshing Happy Hour receptions at which members of the judiciary from the region are expected to attend.
I will be presenting the Auto Law/Post-Koken Update at both the Philadelphia and the Scranton/Wilkes-Barre events. I will also be attending the Harrisburg/Grantville, PA seminar. Hope to see you there!
Anyone wishing to attend any of these seminars may contact me for more information or a registration form at firstname.lastname@example.org.
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2 Substantive and 1 Ethics CLE Credit
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3 Substantive CLE Credits
Compliance with Medicare and DPW Liens
(PHILADELPHIA - AUGUST 5, 2010)
A League of Extraordinary Speakers:
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Cocktail Hour (5-7 p.m.) at Breakers in the Mohegan Sun
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Auto Law Update
In Genaeya, a declaratory judgment action was brought by a liability carrier over the duty to defend and indemnify issue in a case involving an underlying claim for damages arising when a cargo delivered by a trucking company went missing after it was dropped off overnight at a destination.
The truck motor carrier sought a judicial declaration from the court that it did not have to defend its insured trucking company or indemnify the injured party since the policy provided that the carrier "may elect to defend you" against suits arising from claims of owners of property. [Emphasis added].
The Superior Court noted that it was the settled law of Pennsylvania that there was no duty to defend in the absence of any express duty to defend clause in an insurance policy. It was also noted that no Pennsylvania caselaw could be found construing policy language similar to that at issue in this matter.
The Genaeya court reasoned that, since the duty of a liability carrier to provide a defense is contractual, and since the plain language of the policy or contract is the best evidence of the parties' intent, a carrier has no duty to defend an action unless the obligation is expressly set forth in the policy.
The Superior went on to find that the policy language at issue, i.e. that the carrier "may elect to defend" its insured, was not ambiguous and clearly conveyed that the carrier retained the discretion over the decision to defend its insured or not in any potential lawsuit.
The Genaeya court went on to also find that, under the stipulated facts presented, the carrier's duty to indemnify would not have been implicated in any event as the facts did not bring the underlying claims within the coverage terms provided in the policy.
I thank David Schweitzer, Vice President and Chief Claims Officer at Tuscarora Wayne Mutual Insurance Company, for bringing this case to my attention.
Monday, June 14, 2010
Preparing Effective Oral Arguments for Appellate Courts
Howard J. Bashman
The Legal Intelligencer
June 14, 2010
Upon Further Review
The Legal Intelligencer recently hosted a Continuing Legal Education course titled "Winning Litigation Strategies" at which I was fortunate to have been one of the speakers in that program's appellate litigation segment. The subject of my remarks was preparing for an appellate oral argument.
Typically, at the outset of my preparations to argue an appeal, I will re-read the parties' appellate briefs and the trial court's opinion. I will also again familiarize myself with the relevant case law and update my legal research to find any newly issued cases that were not cited in the briefs.
If the case involves more than one or two issues, it is usually a good idea to consider what issues should be the main focus of the oral argument and what issues can be omitted. Of course, the judges can ask questions about any issues in the case, and opposing counsel may decide to focus on additional issues, so a well-prepared advocate will be ready to address any of the issues involved, even those that were not going to be the central focus of his or her presentation.
One of the most important aspects of preparing for oral argument involves thinking about what are the weaknesses and vulnerabilities in your client's case, what sort of challenging questions the appellate judges could ask on those topics, and how best to respond directly to those questions. In addition, it is important to anticipate hypothetical questions from the judges, who are seeking to understand the scope or limits to the legal principles that you are asking the court to adopt or apply.
Appellate courts are in the business of announcing legal principles and deciding the limits of when and how those principles will apply. In other words, if the appellate court is considering whether to announce a rule of law in your case, the judges will legitimately be interested in anticipating if and how that rule of law would apply to other cases involving different facts. This is why appellate advocates must be prepared to respond to hypothetical questions at oral argument instead of simply seeking to evade them as not involving the facts of this particular case.
In reviewing the relevant case law, it is important to focus on whether those decisions are directly binding on the judges who will decide the appeal or are merely persuasive. For example, three-judge 3rd Circuit panels are bound by the rulings of other three-judge 3rd Circuit panels, but they will not be bound by the decisions of other federal appellate courts. Similarly, while a ruling of the Supreme Court of Pennsylvania will bind both the Commonwealth Court and the Superior Court, a ruling of the Commonwealth Court will not bind the Superior Court, nor will a Superior Court ruling bind the Commonwealth Court.
If you are arguing your appeal before a court where the identity of the judges who will be hearing the oral argument is disclosed in advance, it is useful to research those judges' backgrounds and also to see whether any of them wrote the key cases on which the parties are relying. In addition, if you are intending to invoke the names of any of the judges at oral argument, it is useful to make sure in advance that you know the correct pronunciation.
If you have never argued before the particular court in which your appeal is pending, it is useful to attend an earlier argument session or listen to the court's oral arguments that are available over the Internet. The 3rd U.S. Circuit Court of Appeals posts its oral argument recordings online, but Pennsylvania's state appellate courts do not. Indeed, in Pennsylvania's state appellate courts, the oral arguments are not officially recorded or transcribed, so whatever happens at oral argument exists thereafter only in the memories of the participants and observers.
Another thing that is useful to know in advance is whether and how the time remaining at oral argument is displayed to the advocate. At the 3rd Circuit, color-coded lights along with a digital clock allow the advocate to see precisely how much argument time remains. By contrast, at the Pennsylvania Superior Court, the presiding judge maintains a device that will beep when the time for argument has expired, but the advocate cannot see from the podium exactly how much time remains. In that latter situation, the advocate should be prepared to monitor his or her own argument time simply to ensure that the points that need to be made at argument are emphasized before all time has expired.
Inexperienced appellate advocates might view appellate oral argument as the perfect opportunity to deliver prepared remarks to the appellate judges, perhaps in the impassioned nature of a closing argument to the jury at trial, and thereby attempt to evade or ignore the questions posed from the bench. But, in actuality, there is no surer way to incur the wrath of the appellate court.
Questions from the bench should and indeed must be answered directly and promptly, instead of seeking to evade them or postpone them until later. Not every question is a hand-grenade; sometimes, appellate judges toss a lifeline. Be prepared to succinctly state the precise holding that you are asking the appellate court to reach. I do not mean that you should merely be able to state the outcome that you are seeking. Rather, you must be capable of stating the principle of law that will allow the court to reach that outcome.
From time to time judges will ask, "What's your best case for that proposition?" or, "Where can we find that in the record on appeal?" so you should also know at least a case or two that supports what you are arguing and where in the appellate record the key documents or testimony can be found. If you receive a question whose answer you simply do not know, it is better to honestly report that you don't know instead of giving a response that could inflict far greater harm on your case.
The best appellate oral arguments are the ones that are, in essence, a conversation between the judges and the lawyer. It is better to elicit and attempt to address whatever concerns the judges may have about the merits of your case while you still have the opportunity to do so than to cut off all questioning because you are speaking too quickly, too loudly, or too softly. It is also possible to convince the appellate court that the trial judge made a mistake or that the opposing party acted badly without having to be impolite at oral argument toward the trial judge or opposing counsel.
My final thought, for now, on the subject of delivering oral argument on appeal is that lawyers will become better at, and more confident in, delivering oral argument on appeal through experience. Lawyers who are well-prepared for appellate oral arguments, and who have thought about how to advance their client's case while dealing with any weaknesses and vulnerabilities in the case, will not only obtain the best results possible, but they may even actually enjoy their time at the lectern. •
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via e-mail at email@example.com. You can access his appellate Web log at http://howappealing.law.com/.
Sunday, June 13, 2010
In that post, I noted that I did not have a copy of the referenced opinion by Lackawanna County Court of Common Pleas Judge Carmen D. Minora on the issue in the case of Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.).
I wanted to update that post by confirming that I have just received a copy of the Veltri Opinion should anyone need it. If so, please contact me at firstname.lastname@example.org.
I send thanks to the prevailing Plaintiff's attorney in Veltri, Thomas Helbig, Esquire of Scranton for forwarding a copy of the Opinion to my attention.
Friday, June 11, 2010
In this matter, Erie commenced a subrogation lawsuit to recover fire loss damages that allegedly occurred at the Erie insured's residence as a result of a utility pump that had been manufactured by the Wayne/Scott Fetzer Company [Fetzer].
During the course of the litigation, the trial court granted Fetzer's motion for summary judgment on Erie's defective product claim under an argument by the manufacturer of a non-intended use of the product by the homeowner.
More specifically, it was established that the homeowner had admittedly altered the utility pump's design by installing an automatic switch that allowed the pump to run continuously while unattended and without the thermal protection required for continuous use. The manufacturer alleged that this non-intended use allowed the pump to overheat and start the fire.
The trial court had previously granted summary judgment in this case on the strict liability portion of the claim as, under the Pennsylvania rule of law set forth in Pennsylvania Dept. of General Services v. United States Mineral Products Co., 898 A.2d 590, 600 (Pa. 2006), "there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by the manufacturer."
Based upon that rule of law, Judge Nealon previously held in the case that Fetzer could not be found liable for a design defect in the utility pump where the homeowner materially altered the product's design for an unintended use. The court did, however, allow the defective product claim to proceed based upon a failure-to-warn theory as there were issues of fact present on the issue of whether Fetzer provided adequate warnings that advised of the risks of continuous use of the product in terms of overheating.
This most recent decision being reported on here was issued by Judge Nealon to address Erie's stated intention to also advance a negligent product design theory at trial under an argument that such a claim survived the dismissal of the strict liability claim.
Fetzer contended that Erie was precluded from proceeding on this claim as the court had already determined during the motion for summary judgment proceedings that the utility pump could not be deemed to have been defectively designed as manufactured. Fetzer also argued that the claim should not be allowed because Erie allegedly could not make out a prima facie case of negligence in that it could not be shown that the product itself was defective.
In response, Erie pointed to expert evidence it intended to present at trial in support of its negligent product design theory. This evidence allegedly established a defect in the product as manufactured that allowed for overheating.
In his opinion, Judge Nealon reviewed a number of federal and state appellate decisions that abrogated the previous evidentiary requirement that a plaintiff pursuing a product liability negligence claim prove that the product was defective under strict liability principles in addition to establishing that the manufacturer failed to use reasonable care in designing the product.
Judge Nealon noted that those cases viewed strict liability and negligence as distinct legal theories. Strict liability looks at the product itself and does not concern itself with the reasonableness of the actions of the manufacturer. On the other hand, negligence claims against a manufacturer focuses on the conduct of the defendant. Thus, these cases reviewed by Judge Nealon stand for the proposition that it would be improper to dismiss a negligence claim against a manufacturer simply the basis that there was no defect in the product itself.
As such, Judge Nealon noted that the "decisional precedent has consistently recognized that a finding that a product is not defective does not foreclose a manufacturer's liability for negligence."
Judge Nealon therefore held that, although he previously granted summary judgment in favor of the defense on the strict liability claim, Erie was not precluded from pursuing its negligence claim that the defendant manufacturer negligently failed to exercise reasonable care by failing to provide thermal protection capabilities in the product. Accordingly, the plaintiff Erie was allowed to proceed to trial on its negligent design claim.
Anyone desiring a copy of Judge Nealon's Opinion in the case of Erie Ins. Exchange v. Wayne/Scott Fetzer Company may contact me at email@example.com.
This case was slightly different from the ordinary post-Koken case of a third party claim against the defendant driver combined with a UIM claim.
In Bryant, the plaintiff sued the third party tortfeasor for personal injuries arising out of a motor vehicle accident. Given that the tortfeasor was allegedly uninsured, the plaintiff also included a uninsured [UM] motorist benefits claim in the lawsuit. Also alleged was a breach of contract and Section 8371 bad faith claim against the UM carrier pertaining to that carrier's handling of the UM claim.
Allstate filed a Motion to Sever and Stay the breach of contract and bad faith claims from the separate UM claim and the negligence claim against the tortfeasor. Judge Pagano granted the Motion in an Order without Opinion on May 26, 2010. In addition to severing the claims as requested, the court also ruled that breach of contract and bad faith claims would be stayed until the third party liability and UM claims were resolved.
Note that, to date, no motion to sever the UM claim from the third negligence claim against the tortfeasor has been filed in this case.
The information is that the plaintiff has filed a Motion for Reconsideration in the Bryant case and that motion remains in the briefing phase.
I thank Attorney Marshall Walthew of the Philadelphia office of the law firm of Pepper Hamilton for bringing this decision to my attention.
Anyone desiring a copy of the Order from the Bryant case may contact me at firstname.lastname@example.org.
I remind you that a synopsis of all of the post-Koken cases I have been able to uncover, or have been made aware of, can be viewed by clicking on the date below the "Post-Koken Scorecard" down on the right-hand column of this blog.
In Skiro, Erie had paid first party medical benefits over the first five years following a motor vehicle accident to its insured. The insured exhausted his $100,000 in PIP medical benefits and then began to receive additional benefits under his extra ordinary medical benefits where he had a $1 million dollar policy limit available.
Erie referred its insured for an independent medical examination [IME] pursuant to 75 Pa.C.S. Section 1796 (as opposed to engaging in a peer review under 75 Pa.C.S. Section 1797). The IME doctor found that the insured had reached maximum medical improvement and that the ongoing treatment was not medically reasonable or necessary for the alleged injuries from the subject motor vehicle accident.
Accordingly, Erie stopped the medical benefits payments. The insured responded by suing Erie for breach of contract and bad faith. Erie responded to the Complaint by filing preliminary objections to the Complaint asserting that the bad faith claims brought under the bad faith statute (Section 8371) must be dismissed because the Motor Vehicle Financial Responsibility Law [MVFRL] provided, under 75 Pa.C.S. Section 1798, for the sole remedies available for the denial of benefits pursuant to the mental and physical evaluation process.
Under Section 1798, if it is determined that the carrier acted unreasonably in refusing to pay benefits, the carrier would be compelled to pay the medical expenses, any interest, and a reasonable attorneys fee to the injured party for having to fight the issue [but punitive damages are not provided for]. The Plaintiff apparently pursued a bad faith claim under Section 8371 in part because that statute provides for the additional remedies of additional interest, costs, and punitive damages.
While Erie attempted to analogize the issues presented in this matter involving an IME in the first party context to those peer review cases where it has been held that MVFRL provides the exclusive remedies for first party disputes, the insured countered with the argument that the issue presented under the first party benefits IME scenario had not been definitively decided by the appellate courts.
Judge Thomson issued a one line Order, without an Opinion, on May 19, 2010 overruling Erie's preliminary objections and allowing the bad faith claim to proceed in this context.
I note that Judge Thomson's decision is consistent with a prior decision issued by Judge Carmen Minora also out of Lackawanna County in the case of Veltri v. Travelers Commercial Insurance Company, 08-CIVIL-8534 (Lacka. Co. September 2, 2009 Minora, J.) [I do not have a copy of this decision--UPDATE (6/13/10) I have now secured a copy of this opinion should anyone need a copy--contact me at email@example.com].
In Veltri, Travelers’ decided to terminate first party benefits after a favorable IME pursuant to 75 Pa.C.S. Section 1796. This led to the filing of a breach of contract and bad faith Complaint by the Plaintiff.
Travelers responded with Preliminary Objections to the bad faith count of the Complaint alleging that the general tenants of the bad faith statute at 42 Pa. C.S.A. §8371 are essentially trumped by the specific remedies of the MVFRL found at 75 Pa. C.S.A. §1716 and §1798.
Judge Minora denied Travelers’ Preliminary Objections and rejected the carrier's contention that the rules of statutory construction mandate that the provisions for the nonpayment of first party benefits found under the MVFRL negate or trump the general bad faith statute.
The court in Veltri essentially ruled that where the Complaint specifically alleges culpable misconduct both within and beyond the coverage of the specific statutes of the MVFRL, then the remedies under the general bad faith statute at §8371 (i.e., punitive damages, costs and interest) may additionally apply as well.
For more info on Judge Minora's decision in the Veltri case, click on this link to the Tort Talk post on that case:
Also of note on this issue is the fact that Judge Zulick of the Monroe County Court of Common Pleas reached the opposite decision in the case of O'Connor v. Erie Ins. Exchange, No. 8654 CV 2009 (Monroe Co. Feb. 9, 2010 Zulick, J.).
In O'Connor, Judge Zulick struck a bad faith claim against the carrier in a matter pertaining to a denial of PIP medical benefits after an IME. The Monroe County Court of Common Pleas ruled that the Plaintiff's remedy was limited to those remedies provided for under the provisions of the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to first party benefits.
For more info on the O'Connor decision, click on this link to the Tort Talk post on that case:
The above recitation of cases is not meant to be exhaustive on this issue but only serves to point out those cases that have been brought to my attention. Based on the above cases, there appears to be a split of authority on the issue among the trial courts and no appellate case on point to provide guidance.
I send thanks to Erie's defense attorney Robert Panowicz, Esquire for bringing the Skiro case to my attention.
Anyone desiring a copy of Skiro v. Erie Ins. Exchange court filings or court Order or the decision in O'Connor v. Erie Insurance Exchange may contact me at firstname.lastname@example.org.
As stated, I do not have the Veltri v. Traveler's decision but if you click on the link above to the other Tort Talk post on Veltri you will find info on how to order a copy of that case from the Instant Case Service run by the Pennsylvania Law Weekly. [UPDATE (6/13/10): I now have a copy of the Veltri opinion should anyone one need it].
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3 Substantive CLE Credits
Thursday, July 15, 2010
1:30 P.M. – 4:45 P.M. Registration begins at 1:00 P.M.
Sheraton Station Square Hotel
Costs for the event:
· CLE program for lawyers $125.00
For reservations, please complete the form below and return to PDI or e-mail us at email@example.com
Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737
Wednesday, June 9, 2010
Tannenbaum v. Nationwide Ins. Co., 992 A.2d 859 (Pa. 2010)(Recovery of UM/UIM benefits can be offset by amount of insureds group plan and personal disability benefits).
As you may recall from recent posts on Tort Talk, the issue presented, as set forth in my amicus brief and filed of public record, is "[w]hether the trial court [Cumberland County Court of Common Pleas--Judge Hess] properly ruled, within its broad discretion, that repeated communications from plaintiff's attorney to the plaintiff's expert medical witness for trial were discoverable by the defense where the letters and e-mails to the expert purposefully addressed how the expert should frame his opinion testimony and where the trial court found, after an in camera inspection of the documents, that such written documents may have materially impacted the expert's formulation of his opinion."
Plaintiff's counsel argued, in part, that his letters and e-mails were protected from disclosure by the attorney work product doctrine. He also asserted that recent changes to the companion Federal Rules of Discovery in this regard allegedly showed a trend in favor of protecting such communications from disclosure.
Here are links to the other Tort Talk posts on this case:
The Superior Court took the matter under advisement. I will post a summary of the Court's decision here on Tort Talk once it is handed down.
Monday, June 7, 2010
The Vail case involved a plaintiff who was employed at an elementary school that was undergoing renovations. On the day of the trip and fall incident, the plaintiff was on her way to monitor dismissal of students.
As she was going through the doorway to the main building of the school, plaintiff stepped around a tightly rolled carpet that was about six to eight inches high. There was a one-foot wide space where the carpet was not blocking the doorway.
Plaintiff stepped through this one-foot wide space to walk around the carpet. She caught her pant leg on the roll of carpet and fell, allegedly sustaining personal injuries.
Plaintiff filed this negligence action against various defendants. All of the defendants moved for summary judgment on the basis of the plaintiff's alleged assumption of the risk presented.
The evidence in the case established that about two or three minutes prior to the accident, plaintiff had walked out of the school's main building, using the same doorway where her accident later occurred.
At that time, the plaintiff admittedly saw the carpet that was partially across the bottom of the doorway. On her way out of the building before her incident, she also walked through the same one-foot wide opening in the doorway rather than stepping over the carpet. The plaintiff later came back and walked through the same doorway when her trip and fall occurred.
The court determined that because plaintiff voluntarily and intelligently chose to try to step around the rolled up carpet, with the previous awareness of the presence of the carpet and the risk of potentially falling, she was barred from recovery under the assumption of risk doctrine.
Accordingly, the court granted defendants' summary judgment on the basis of assumption of risk.
Source: Case Digests of June 8, 2010 Pennsylvania Law Weekly
Anyone desiring a copy of this case may secure one for a small fee by calling the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-PICS (7427) and giving the above PICS Number.
A CELEBRATION OF LIFE, TRAVEL, AND FAMILY
FUNDRAISER FOR CROSSING THE FINISH LINE
SUNDAY, SEPTEMBER 12, 2010
NOON TO 3:30PM
THREE COURSE LUNCH
SPEECH BY AUTHOR SUZANNE FISHER STAPLES
RADISSON LACKAWANNA STATION HOTEL
Inspired by the late Peter R. Bossow, Jr., Crossing the Finish Line offers the young adult cancer patient and his or her family a retreat from the unyielding physical and emotional demands of treatment – a hopeful respite during the throes of a courageous battle – by providing a one week all-expenses paid excursion to homes and resorts in Orlando, Fl, the Pocono’s, the Jersey Shore, California, and North Carolina.
All proceeds from this event will be donated to Crossing the Finish Line.
At the present time, sponsorships for this event and in-kind donations for a raffle to be held during the event are being accepted.
A sponsorship will provide your organization or company with several venues for advertising. The event is creating a web page and any sponsorship over $250 will be listed on the page. In addition we will acknowledge our sponsors the day of the event on posters and the program. It is hopefully anticipated that hundreds of people will turn out for this event.
Note that all donations/sponsorships are tax deductible.
I invite you to join me in assisting Crossing the Finish Line in its worthy effort to assist young adult cancer patients and their families. Please seriously consider a contribution by way of a sponsorship/advertisement for this worthy cause.
Anyone wishing to sponsor this event, contribute a donation for the raffle, or purchase a ticket to the event may contact me at firstname.lastname@example.org for more information.
I thank you for your time and consideration in this regard.
Sunday, June 6, 2010
The President of Wilkes University noted hopes to rejuvenate the plans on the law school in a few years.
Thursday, June 3, 2010
Federal Middle District Court Judge Munley Allows Nurse to Testify on Causation in Trucking Accident Case
The Plaintiff in this matter allegedly sustained physical and psychiatric damages as a result of an accident with a tractor trailer. The Plaintiff identified a psychiatric nurse practitioner as a witness in support of her claims for psychological damages. The nurse had treated the Plaintiff both before and after the accident and was prepared to testify that the accident had worsened the Plaintiff's condition.
Judge Munley denied the defense motion in limine to preclude the nurse's testimony at trial. In doing so, rejected the defense's reliance upon the Pennsylvania Professional Nursing Law, 63 Pa.C.S. 211, and noted that the Pennsylvania Supreme Court had previously rejected the same argument and ruled in the case of Freed v. Geisinger Medical Center, 971 A.2d 1202, 1208 (Pa. 2009) that nurses could testify as experts where properly qualified to do so. As such, Judge Munley denied the defense motion in limine.
An analysis of the Freed opinion here on Tort Talk can be found at this link: http://www.torttalk.com/2009/06/pennsylvania-supreme-court-reverses.html
The prevailing Plaintiff's attorney in this Earls decision by Judge Munley was Attorney James Conaboy of the Scranton, Pennsylvania law firm of Abrahamsen, Conaboy & Abrahamsen.
Anyone desiring a copy of this Opinion and Order may contact me at email@example.com.
Thanks to Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price for bringing this case to my attention.
Wednesday, June 2, 2010
Upcoming CLE: June 23, 2010 at the Hollywood Casino at Penn National Race Course in Grantville, PA (near Harrisburg)
“Another Day at the Races: Key Insurance Law Issues
Hollywood Casino at Penn National Race Course, Grantville, Pennsylvania
Wednesday, June 23, 2010
1:00 – 1:30 PM Registration
1:30 – 2:00 PM “Attorney-Client Privilege in Pennsylvania after Fleming
Robert Kelly, Jr., Esq., Kelly, Parker & Cohen
2:00 – 2:30 PM “Post-Koken Issues”
Phillip Earnest, Esq., Robb, Leonard & Mulvihill
2:30 – 2:45 PM Break
2:45 – 3:45 PM “Medicare Secondary Payer Act and DPW Liens
Glenn Ricketti, Esq., Margolis, Edelstein
Deryck Henry, Proactive Settlement Solutions
3:45 – 4:00 PM Break
4:00 – 5:00 PM “Ethical Considerations in the Insurance relationship: 10
Thomas Auth, Esq. Minnesota Lawyers Mutual Insurance
Daniel Howell, Esq., Minnesota Lawyers Mutual Insurance
Timothy Gephart, V.P. Claims, Minnesota Lawyers Mutual
5:00 PM Cocktail Reception with the Judiciary serving Central Pennsylvania
Costs for the events:
· Program for claim representatives $25.00
· CLE program for lawyers $125.00
· Reception $25.00
For reservations, please complete the form below and return to PDI or e-mail us at firstname.lastname@example.org
Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697
For more information, contact PDI at 800-734-0737
On May 10, 2010, Judge Allan L. Tereshko issued a severance Order in the Post-Koken case of Thomas v. Titan Auto Ins., Nationwide Ins, Jones, and Briel, March Term 2010, No. 03050 (Phila. Co. May 10, 2010 Tereshko, J).
The Court severed the third party liability claim filed against an owner and operator of a vehicle, which vehicle was reported stolen after the accident, from the uninsured (UM) motorist claim against one of the carrier defendants.
Judge Tereshko not only severed the matters from each other but also transferred both claims to Montgomery County. Although the Court's Order does not specify the reason for the transfer, I assume that there was a venue clause in the carrier's policy that supported the transfer.
I thank Attorney Kristin Voiro from the Philadelphia law firm of Rodden and Rodden for bringing this case to my attention.
Anyone desiring a copy of this Order may contact me at email@example.com.
I was also advised of another recent Post-Koken case out of Philadelphia County entitled Celia v. McQueeny. I do not have a copy of this decision but will try to secure one. I do not have the date of the decision, the identity of the Judge, or the docket number. What follows is the information I was provided on this decision.
Celia involved a motor vehicle accident that occurred in Bucks County accident with all parties in the accident also being from Bucks County. Nevertheless, the Plaintiff filed suit in Philadelphia County against the tortfeasor, the first layer UIM carrier, and the second layer UIM carrier.
The first layer UIM insurance policy had a forum selection clause that required suit to be brought in the county of the insured's residence. The second layer UIM insurance policy did not have a forum selection clause.
The tortfeasor defendant filed preliminary objections to sever the claims and transfer the case. The insurance carrier with the policy with the forum selection clause also filed preliminary objections.
The Philadelphia County Court of Common Pleas issued at least an Order in Celia v. McQueeny under which the Court did not sever the claims but did transfer the consolidated case over to Bucks County.
Again, I do not have a copy of this decision but will try to secure a copy. I respectfully request a copy from anyone who may have the case.
I thank Attorney Frank Baer from the Media, PA law firm of Gibley and McWilliams for bringing this case to my attention.
Tuesday, June 1, 2010
Another Post-Koken Trial Court Decision Out of Philadelphia County - This One in Favor of Severance of Claims
On May 27, 2010, Judge Allan L. Tereshko issued an Order without an Opinion in the case of Carter v. Gillespie and Travelers Insurance Company, April 2010 Term No. 0564 (Phila Co. May 27, 2010 Tereshko, J.) granting the third party tortfeasors' Preliminary Objections asserting a Misjoinder of Actions.
Judge Tereshko ordered the actions severed and also mandated that the matters were to be tried separately.
According to my Post-Koken Scorecard on Tort Talk, I have now been made aware of three (3) Philadelphia County decisions in favor of consolidation and five (5) decisions in favor of severance (two of the five decisions were issued by Judge Tereshko).
To view the periodically updated Post-Koken Scorecard on Tort Talk, you can always click the link down on the right hand side of the column. Here's the link to the Scorecard here for your easy reference now: http://www.torttalk.com/2009/12/new-and-improved-updated-list-of-post.html.
Note that, while the Post-Koken Scorecard is pretty thorough if I may say so myself, it may not be exhaustive and there may be other decisions out there that I am not aware of. I would appreciate it if you could please notify me of any Post-Koken decisions you hear about as publicity of these cases may assist in the development of a consistent common law for the benefit of both the plaintiff and defense side of the bar.
Anyone desiring a copy of the Order issued in Carter v. Gillespie and Travelers Ins. Co. may contact me at firstname.lastname@example.org.
Thanks to defense counsel Chuck Daly of Horsham, PA for bringing this case to my attention.
Wednesday August 18, 2010
1 p.m. to 5 p.m.
Followed by Cocktail Hour (5-7 p.m.) at Breakers in the Mohegan Sun
1:00 – 1:30 PM Registration
1:30 – 2:30 PM “AUTO LAW UPDATE”
Robert Panowicz, Esq. – Panowicz Law Office
2:30 – 2:45 PM Break
2:45 – 3:45 PM “BAD FAITH UPDATE”
Suzanne T. Tighe, Esq. – Swartz Campbell
Timothy P. Lenahan, Esq. – Lenahan & Dempsey
3:45 – 4:00 PM Break
4:00 – 5:00 PM ETHICS HOUR WITH PANEL OF JUDGES
Moderator: Mark T. Perry, Esq. – The Perry Law Firm
Judge Thomas I. Vanaskie
Judge Terrence R. Nealon
Judge Thomas F. Burke
2 Substantive & 1 Ethics CLE Credits
Course Planner: Matthew P. Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin
Make checks payable to:PENNSYLVANIA DEFENSE INSTITUTE, P.O. Box 697, Camp Hill, PA 17001-0697. For more information, contact Dan Cummins at email@example.com or the PDI at 800-734-0737