Tuesday, August 31, 2010

UM/UIM Benefits Precluded Where Injured Party Injured On the Job by Employer or Co-Worker

In Erie Ins. Exchange v. Conley, No. GD 09-21471 (Alleg. Co. Aug. 27, 2010, Hertzberg, J.), Judge Alan Hertzberg of the Allegheny County Court of Common Pleas recently addressed the issue of the permissibility of filing a lawsuit for UIM benefits when the tortfeasor is the Plaintiff’s employer and worker’s compensation benefits were paid to the injured party.

In this matter, the injured party was injured while in the scope and course of his employment. The injured party was standing on the ground loading tools into the rear of a dump truck that was being operated by his employer. The employer allegedly negligently moved the vehicle, striking the injured party and causing personal injuries.

The injured party in this matter acknowledged that the incident was only between him and his employer and with no outside third party being involved.

As a result of being injured while in the scope of his employment, the injured was awarded worker’s compensation benefits. The injured party did not sue his employer as the Pennsylvania Worker’s Compensation Act prohibited him from doing so.

Instead, the injured party made a claim for uninsured or underinsured motorist benefits contained under his own personal automobile insurance policy issued by Erie Insurance Exchange.

Erie denied the claim for uninsured or underinsured motorist benefits and filed this declaratory judgment action. The injured party filed a counterclaim for the uninsured or underinsured motorist benefits. Erie filed a Motion for Judgment on the Pleadings.

Judge Hertzberg granted Erie’s Motion and found that Erie had no obligation to provide Connolly with uninsured or underinsured motorists benefits.

The injured party filed an appeal to the Superior Court and Judge Hertzberg wrote this Rule 1925 Opinion explaining his position to the Superior Court.

After reviewing the applicable case law, Judge Hertzberg concluded that, where an injured party is injured by his employer or a co-employee, the exclusivity provision of the worker’s compensation law limited the injured party’s recovery to the worker’s compensation benefits and precluded any uninsured or underinsured motorist claims.

Judge Hertzberg also rejected the injured party’s argument that the denial of uninsured or underinsurance motor benefits were contrary to public policy. Rather, the judge noted that the public policy behind the Motor Vehicle Financial Responsibility Law and the Worker’s Compensation Act actually indicates a public policy against the injured party receiving uninsured or underinsurance benefits under the facts presented.

The judge did note that, in situations where the injured party is injured by a third party outside of the employment situation, an uninsured or underinsured motorist benefits claim may be pursued in appropriate circumstances.


I thank Judge Alan Hertzberg for forwarding this decision to my attention for publication.

Anyone desiring a copy of Erie Ins. Exchange v. Conley may contact me at dancummins@comcast.net.

Federal Eastern District Judge Provides Guidance on Determining Recoverability of DPW Lien

In the case of McKinney v. PHA, 2010 WL 3364400 (E.D.Pa. 2010 Schiller, J.), Pennsylvania Eastern District Federal Court Judge Schiller ruled that a settling Plaintiff cannot be automatically be required to reimburse the Pennsylvania Department of Public Welfare for 100% of her Medicaid expenses.

In this case, the Department of Public Welfare was seeking to recover the full amount of its $1.2 million lien. The Department asserted that the agency was legally entitled to the full amount, particularly where the full amount did not exceed half of the total settlement in the case.

In this case involving at $12 million settlement, the Department of Public Welfare was relying upon a state law that allegedly established a presumption in Pennsylvania that half of a Plaintiff’s settlement should be properly attributed to compensation for medical expenses.

Judge Schiller rejected the Department of Public Welfare’s position and noted that the “Department of Public Welfare’s proposed rule ignores the reality of settlement.”

Rather, the Court noted that settlement involves compromise on all parties involved in a settlement. As such, the Court rejected Department of Public Welfare’s argument that it need not compromise at all unless its lien is for more than half of a Plaintiff’s total recovery.

Judge Schiller recommended that the Department of Public Welfare lien recovery be determined in such cases by the trial judge assessing “the factors that would have influenced the parties’ settlement position and [making] an ultimate determination of what portion of the settlement represents compensation for past medical expenses.”

In this matter, Judge Schiller, who had provided over the proceedings and the settlement talks, concluded that the Plaintiff’s had settled for 2/3 of the total value of the case. As such, the Court felt that the Department of Public Welfare was entitled to 2/3 of its $1.2 million dollar lien, minus fees and costs.

Source: Shannon P. Duffy, “Fed Judge Cuts Medicaid Lien in 12 Mil Mold Settlement,” The Legal Intelligencer (August 26, 2010).

Anyone desiring a copy of this Opinion may call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 800-276-PICS and provide the PICS Case No. 10-3001.

In the alternative, here's a link to the opinion online: http://www.paed.uscourts.gov/documents/opinions/10D0874P.pdf

That Hurts

I was recently notified of the UIM declaratory judgment/coverage action decision of Allstate v. Hymes, No. GD 10-000201 (Alleg. Co. July 22, 2010, O’Brien, J.), in which the Court addressed Allstate’s Motion for Judgment on the Pleadings in a declaratory judgment action on the issue of whether or not the injured party was entitled to pursue a UIM claim. Under the facts of this case, the injured party was operating a motorcycle and was struck by the tortfeasor’s vehicle and sustained injuries when his body struck the tortfeasor’s windshield and then the pavement.

The question became whether the injured party suffered injuries in the accident “while in, on, getting into, or out of” his motorcycle in accordance with the terms of the UIM coverage under the injured party’s policy of insurance with Allstate. Under the facts of this case, if it was found that the injured party did sustain injuries while in, on, getting into, or out of his motorcycle, he would not be able to claim UIM benefits under the policy due to the application of the “household exclusion” in the policy.

The injured party attempted to argue that he was not “on” the motorcycle when he was actually injured. The injured party asserted that he was not injured until after he was ejected from the motorcycle and smashed into the windshield of the other vehicle and then hit the pavement.

The Court rejected this argument and accepted Allstate’s argument that it was unreasonable to read Allstate’s policy language in this regard as requiring the injured party to have actually be on the motorcycle at the moment the injuries occurred but not applying to any injuries sustained by the injured party after he was ejected from the motorcycle. The Court agreed that the accident clearly involved a continuous chain of events from the impact until the body came to rest.

As such, the Court agreed with Allstate that the clear and unambiguous language of the household exclusion applicable to that case barred the injured party’s UIM claim. As such, Allstate’s Motion for Judgment on the Pleadings was granted.

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

Further Clarification Offered in Inter-policy Stacking Case

Tort talkers may recall that I previously reported on the case of Heller v. State Farm, No. 408-2008 (Venango Co. 2010, Boyer, J.), an Opinion that served to clarify certain issues involving inter-policy stacking in UIM cases. That original decision was also noted to provide an excellent explanation of the interplay of the Pennsylvania Supreme Court’s decisions on this issue in the Craley and Genette decisions.

I was recently provided with an additional Opinion by Judge Boyer in the same case. Now that the case is going up on appeal, Judge Boyer reiterated his analysis in a Rule 1925 Opinion.

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

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 decision to my attention.

Judge Amesbury of Luzerne County Addresses Punitive Damages Claim in MVA Case

The Luzerne Legal Register recently published the Opinion of Sartorio v. Galletti, No. 6847 of 2008 (Luz. Co. May 25, 2010, Amesbury, J.), in which the Court granted the Defendant’s Motion for Summary Judgment, thereby dismissing the Plaintiffs’ claim for punitive damages in a motor vehicle accident case based upon the Defendant driver having been found guilty of violating the Motor Vehicle Code in permitting his vehicle to cross the center line of the roadway and impact the Plaintiff’s vehicle.

In this matter, the Plaintiff had alleged in the Complaint that such conduct by the Defendant was reckless and therefore supported the possibility of an award of punitive damages. Judge Amesbury disagreed.

Judge Amesbury noted that, under Pennsylvania law, it is for the Court, and not a jury, to determine, in the first place, if there is sufficient evidence to establish the mental state required for the imposition of punitive damages.

In this case, the Defendant driver was transporting school children to school when he turned his head to look over his right shoulder for several seconds to check on a student passenger when his vehicle drifted over the center line and struck the Plaintiff’s vehicle. As noted, the Defendant driver was ultimately found guilty of failing to obey a relevant provision of the Motor Vehicle Code.

Judge Amesbury relied upon the case of Martin v. Johns-Manville, 494 A.2d 1088, 1097-1098 (Pa. 1985) in which §908(2) of the Restatement (Second) of Torts was adopted. In that case, the Pennsylvania Supreme Court held that punitive damages may be awarded for conduct that is outrageous because of a Defendant’s reckless indifference to the rights of others.

The court also relied upon comment g to §500 of the Restatement (Second) of Torts, which assists in defining reckless conduct. The Court noted that Pennsylvania jurisprudence in this context has focused the inquiry on the state of the mind of the actor, requiring an evil motive and a conscious choice.

Judge Amesbury ruled that “[m]ere inadvertence, in competency, unskillfullness, or a failure to take precautions, (i.e., pulling off the road to check on the student) to cope with possible or probable future emergencies” only amounted to negligence. Since reckless misconduct requires a conscience choice, Judge Amesbury found that the facts presented in this matter did not rise to the level necessary to support the possibility of an award for punitive damages. As such, he granted the Defendant’s Motion for Summary Judgment.

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

Monday, August 30, 2010

Civil Case for Luzerne County Juveniles Streamlined by Recent Court Rulings

Recent rulings by Federal Middle District Court Judge A. Richard Caputo have streamlined the claims presented in the cases being pursued on behalf of the juveniles that were allegedly impacted by the Luzerne County judicial scandal.

Here's a link to an August 28, 2010 article by Mark Guydish of the Time Leader on the topic: http://www.timesleader.com/news/Cefalo_agrees_with_juvie_dismissal_ruling_08-27-2010.html

The article notes that former judges, Ciavarella and Conahan, remain party defendants but they are largely protected by judicial immunity.

Friday, August 27, 2010

Council on Litigation Management

I was recently accepted for membership in the Council on Litigation Management. The Council consists of attorneys and in-house counsel and personnel who deal with litigation matters. Membership in the Council is by invitation only and invitation is limited.

The Council is a nonpartisan alliance committed to furthering the highest standards of litigation management. The Council sponsors educational programs, provides resources, fosters communications, and recognizes lawyers who meet high standards. Selected attorneys and law firms are extended membership by invitation only, based upon nominations from CLM Fellows.

Here's a link to the Council's website if you are interested in more information:

http://www.litmgmt.org/

Decision Issued on Remand in Vanderhoff

Tort Talkers may recall that I previously reported on the Pennsylvania Supreme Court decision in the case of Vanderhoff v. Harleysville Ins. Co., 2010 WL 2653247 (Pa. 2010, Baer, J.), in which the Court considered the issue of “Whether an insurance carrier should be required to prove prejudice relative to the late reporting to the carrier of an accident involving an unidentified vehicle when such accident was timely reported to law enforcement officials?”

In this uninsured motorist case, the Pennsylvania Supreme Court held that an insurance company is indeed required to prove prejudice relative to the late reporting to the carrier even where the accident involving an unidentified vehicle was timely reported to law enforcement officials.

In Vanderhoff, the subject accident was allegedly reported to law enforcement officials within thirty days of the accident as required. However, the insurance company allegedly did not receive notice of the accident until about eight (8) months after the accident.

The Supreme Court ruled that, since the accident was reported to law enforcement officials within the thirty day requirement, the case would be remanded back to the trial court to determine whether or not the insurance company can establish prejudice from its later receipt of notice.

I just received notice that, on remand, Judge Lewis W. Wetzel, issued an August 24, 2010 Order in which he ruled, after a hearing on the matter, that the delay in notifying the carrier, in and of itself, did not amount to prejudice sufficient to support the carrier's denial of coverage. As such, the trial court judge held on remand that the Plaintiff's claim was not barred by the untimely notice. Vanderhoff v. Harleysville Mut. Ins. Co., No. 5611 of 2003 (Luz. Co., Aug. 24, 2010, Wetzel, J.).

The prevailing Plaintiff's attorney in Vanderhoff was Attorney Brian Corcoran, a solo practitioner out of Kingston, PA.

Anyone desiring a copy of the trial court order (which contains a brief rationale) may contact me at dancummins@comcast.net.

Thursday, August 26, 2010

HOPE TO SEE YOU AT THE PENNSYLVANIA DEFENSE INSTITUTE ANNUAL CONFERENCE - Sept. 30-Oct. 1

Omni Bedford Springs Resort


42ND PENNSYLVANIA DEFENSE INSTITUTE ANNUAL CONFERENCE

September 30, 2010 - October 1, 2010


GREAT SEMINAR

AND

GREAT OPPORTUNITY TO NETWORK

WITH CLAIMS PROFESSIONALS AND

INSURANCE DEFENSE COUNSEL

21st Century Lawsuit
“The Electronic Revolution in the Courtroom”

• E-Discovery - Current Law and “Nuts and Bolts”
• The Electronic Courtroom
• Technology and Engineering Courtroom Presentations
• Other Electronic Advancements in Case Management

GREAT LOCATION

BEDFORD SPRINGS RESORT & SPA
Bedford, Pennsylvania

For more information and a registration form, contact

David Cole, Executive Director of the Pennsylvania Defense Institute, by email


at







HOPE TO SEE YOU THERE!

SAVE THE DATE: CHART YOUR COURSE - A CELEBRATION OF LIFE, TRAVEL & FAMILY



Chart Your Course
A Celebration of Life, Travel, & Family
a fundraiser to benefit
Crossing the Finish Line


Sunday September 12, 2010
Radisson Hotel - Scranton


12pm to 3:30pm


Tickets: $50 or $350 for a table of 8.





CHART YOUR COURSE--A CELEBRATION OF LIFE, TRAVEL & FAMILY is an event for Crossing the Finish Line, a non-profit organization that assists young adult cancer patients, ages 24 to 50, and their families by giving them a “break from cancer.”

This organization offers a retreat from the unyielding physical and emotional demands of cancer treatment – a hopeful respite during the throes of a courageous battle – by providing a one week all-expense paid excursion to homes and resorts in Orlando, the Poconos, the Jersey Shore, California, and North Carolina.

Many families from our immediate area have been recipients of these travel experiences along with 821 families from PA, NJ, and Delaware.

The event promises a 3 course luncheon at the Radisson along with an exciting raffle with great prizes. The Keynote speaker is Suzanne Fisher Staples author of the award winning Under the Persimmon Tree.

Marci Schankweiler, the Crossing the Finish Line Founder/President and 2010 recipient of the National People Magazine/MLB Stars Among Us Award will also speak along with 2 local women who have received respite travel from Crossing the Finish Line.

To understand the lasting effects of this fantastic organization, please visit this link for a local woman’s story and slide show http://www.crossingthefinishline.org/sailor-detail.asp?id=24

Please support this great cause by attending the event, sponsoring the event, giving a prize for the raffle, or making a donation. For more information on the Chart Your Course Fundraiser visit http://gallery.crossingthefinishline.org/goto/chartyourcourse ; email chart_your_course@verizon.net or call 570-498-2595.

In the alternative you can forward your request for sponsorship, donation, raffle prize, or your request for tickets to my attention at Foley, Cognetti, Comerford, Cimini & Cummins, 507 Linden Street, Suite 700, Scranton, PA 18503. Checks can be made out to "Crossing the Finish Line."


As over 300 people have been sent invitations to purchase tickets to this event, it is anticipated that this will be a well-attended event by members of the local community. A sponsorship of this event will therefore also turn out to be a worthwhile advertising effort in support of a great cause.


Thanks for your consideration of this request for your support.

Wednesday, August 25, 2010

A Slightly Different Scenario Post-Koken Decision from Judge Hertzberg Out of Allegheny County

I was recently advised of another post-Koken decision out of Allegheny County. This decision was actually handed down by Judge Alan Hertzberg back on February 17, 2010 in the case of Richner v. McCance and Erie Insurance Group, GD 09-2578, 2045 WDA 2009(Alleg. Co. Feb. 17, 2010, Hertzberg J.). This case was only just brought to my attention after the publication of my recent post-Koken article in The Pennsylvania Law Weekly in which I emphasized that these types of cases should be publicized benefit of the Bench and the Bar as a whole.

The Richner case originally involved the post-Koken scenario of a Plaintiff who sued both the third party tortfeasors and Erie as the UIM carrier under a single caption in the Allegheny County Court of Common Pleas.

Erie Insurance responded to the Complaint by filing Preliminary Objections arguing that, under the terms of the insurance policy, the Plaintiff was required to bring the UIM claim before an arbitration panel.

Separately, Erie, acting as a Plaintiff, filed a declaration judgment action in nearby Butler County against the injured party seeking a finding that Erie did not owe any duty to provide UIM benefits under the regular use exclusion.

Erie asserted that UIM coverage should be precluded under the non-owned vehicle regular use exclusion in the policy given that the Plaintiff regularly used his employer’s vehicle, which he was driving at the time of the subject accident. The injured party filed an Answer to Erie’s declaratory judgment action in Butler County asserting that the Butler County action should be dismissed or stayed under the doctrine of lis pendens.

Meanwhile, in the original Allegheny County action, the injured party filed an Amended Complaint in response to Erie’s First Set of Preliminary Objections. In the Amended Complaint, the Plaintiff reasserted the third party claims against the tortfeasors but also raised the same coverage dispute asserted by Erie in the Butler County action and sought a declaratory judgment from the Allegheny Court of Common Pleas on the issue. By this time, the injured party had agreed that the UIM claim should be resolved by way of an arbitration, assuming the regular use exclusion was found not to apply. As such, there was no UIM claim asserted in the Amended Complaint.

Erie responded to the injured party’s Amended Complaint in Allegheny County with the filing of a Second Set of Preliminary Objections. Those Preliminary Objections essentially argued that the pending litigation in Butler County was filed first and should therefore be the action that resolves the coverage dispute. Erie also asserted that the Plaintiff had misjoined Erie in this action against the third party tortfeasors.

On October 30, 2009, Judge Hertzberg issued an Order overruling Erie’s Preliminary Objections. Thereafter, Erie filed a Notice of Appeal along with a concise statement of errors complained of on appeal. Erie again raised the same two arguments noted in the second set of Preliminary Objections noted above.

On February 17, 2010, Judge Hertzberg issued this Rule 1925 Opinion on the issues presented.

In his Opinion, Judge Hertzberg initially asserted that the appeal was improper as the Order overruling the Preliminary Objections was not an appealable Order.

Turning to the merits of the arguments raised, Judge Hertzberg reviewed the doctrine of lis pendens and the 3-pronged test for successfully pleading lis pendens as a defense to a cause of action. Applying that test, Judge Hertzberg held that he did not err in overruling the Preliminary Objections of Erie on the theory of lis pendens.

With respect to Erie’s argument that the injured party’s claim should be dismissed because Erie was misjoined in the Plaintiff’s tort action, Judge Hertzberg noted that Pa. R.C.P. 2229(b) allows for the joinder of Defendants involved in matters arising out of the same transaction, occurrence, or series of transactions or occurrences and involving common questions or law or fact.

Significantly, in reviewing this issue, Judge Hertzberg cited in his Opinion my Pennsylvania Law Weekly article “Two Roads Diverged,” 32 PLW 1355 (No. 30, 2009), and noted that there were two schools of thought on this issue of consolidation versus severance of post-Koken matters.

After reviewing the Post-Koken cases in existence at the time of this decision, Judge Hertzberg decided to allow the claims and issues presented to proceed in a consolidated fashion under a single lawsuit. However, he also noted that, should the third party negligence claim not resolve prior to trial, there would still exist the opportunity to bifurcate and postpone the trial on the UIM exclusion/coverage declaratory judgment issue while awaiting the outcome of trial on the negligence issue.

It appears from the Opinion that Judge Hertzberg was influenced to rule in this fashion by the issue of whether or not “insurance” should be allowed in the negligence claim against the third party tortfeasor. By asserting that the insurance coverage question could be bifurcated from the third party negligence trial at the last moment, Judge Hertzberg recognized the general rule that evidence of insurance coverage is not admissible in negligence cases pursuant to Pa. R.E. 411.

I thank the Honorable Alan Hertzberg for forwarding this case to my attention for publication.

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

Tuesday, August 24, 2010

Benefit for Attorney Bill Rice -- Hope You Can Help Out

Friends of Attorney Bill Rice and his family will be hosting a benefit chicken barbecue at the Greeley Fire Department in Pike County, Pennsylvania on Sunday September 19, 2010 from 1PM–5 PM.

Bill has been battling Leukemia for over two years. He is a law school classmate of mine at the Dickinson School of Law (Class of 1993) and is also the guy who saved me from a career in retail selling shirts and ties ("You want ties with that?") when he convinced Judge Thomson of the Pike County Court of Common Pleas to hire me as an additional law clerk in 1995. I am forever grateful to both Bill and Judge Thomson for kick-starting my legal career.

Bill was the Senior Law Clerk in Pike County and I was under his wing as the Junior Law Clerk. I credit him with teaching me how to assist the Judge in writing legal opinions and for fine-tuning my legal writing abilities and style. He is an excellent writer and lawyer in his own right and I look forward to the day he returns to the practice of law as a worthy adversary.

He is truly a gentleman, a scholar, and a true professional with a great sense of humor. Here is a link to his bio on his firm's webpage: http://www.wskllawfirm.com/content/rice.php

Bill has been a long time resident of Pike County and worked in Milford since the mid-1990s. Bill and his wife Janet have been active community for many years. Most importantly, Bill and Janet are the proud parents of four daughters.

Bill's battle against this illness over the past few years has been a great burden on the family but they continue to fight a courageous battle. In this time of need, they could use a hand from their friends and fellow professionals.

I have been advised that an account has been opened at the Honesdale National Bank and contributions to help the family with medical expenses and other family expenses can be mailed directly to:

The Honesdale National Bank
P O Box 192
Lackawaxen, PA 18435

Checks should be made out to: “Bill Rice Benefit”


Tickets to the Barbeque are $10 per adult $5 per child and will be on sale at the Honesdale National Bank offices at Lackawaxen and at the Lake Wallenpaupack Branch.

Tickets can also be purchased by calling Harry Kessler at 570-685-7394 or Frank Impastato at 570-685-4940.


Thanks for your time and consideration of this request on behalf my friend--I appreciate it and I know Bill and his family appreciate your consideration as well.

Anyone wishing to contact Bill directly to give him support may contact me at dancummins@comcast.net for his contact info.

Atlantic Second Citation for Vanderhoff Decision

Here is the citation given to the Vanderhoff v. Harleysville Ins. Co. case in case you need it sometime:

Vanderhoff v. Harleysville Ins. Co., 997 A.2d 328 (Pa. 2010)(Insurer could not deny uninsured motorist benefits unless it was prejudiced by insured's failure to report "phantom vehicle").

Monday, August 23, 2010

Lackawanna County Trial Court Decision in Favor of Severance of UIM and Bad Faith Claims

Another post-Koken case involving a bad faith claim has been handed down - - this time in Lackawanna County. On August 18, 2010, visiting Senior Judge Howard A. Thomson, Jr. issued an Order in the case of Smith v. GEICO, No. 10-CIV-2024 (Lacka. Co. Aug, 18, 2010, Thomson, S.J.), sustaining GEICO’s Preliminary Objections to the extent that the bad faith claim contained in the Plaintiff’s Complaint would be severed from the action and the parties would proceed with the claims bifurcated. Although defense counsel also requested a stay of any bad faith discovery, that part of the Defendant’s request was not addressed in the Court Order.

This decision creates an apparent split of authority on the issue in Lackawanna County. A few years ago, in the slightly different scenario presented in the case presented in Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008, Minora, J.), Judge Carmen D. Minora allowed for the consolidation of a bad faith action against UIM carrier with the companion declaratory judgment action regarding coverage.


Anyone desiring a copy of Judge Thomson's Order (without Opinion) may contact me at dancummins@comcast.net.

I send thanks to Attorney Cindie Banks, from the Law Offices of Cynthia E. Banks, GEICO staff counsel, for forwarding this Order to my attention.

Sunday, August 22, 2010

Recent Pennsylvania Supreme Court Decisions of Note

American and Foreign Insurance Company v. Jerry's Sports Center

My partner, Sal Cognetti, Esquire was local counsel for the prevailing party in a recent August 17, 2010 Pennsylvania Supreme Court decision that should have a significant impact in the insurance industry here in Pennsylvania.

In the case of American and Foreign Insurance Company v. Jerry's Sport Center, Inc., 2010 WL 3222404 (Pa. Aug. 17, 2010, Baer, J.), the Pennsylvania Supreme Court addressed the issue of whether, following a court's declaration that an insurance company had no duty to defend its insured, the insurance carrier was entitled to be reimbursed those amounts it paid out to defense counsel for the defense of its insured in the underlying suit.

The carrier was seeking such reimbursement from its insured on the basis of a series of reservation of rights letters as opposed to any express language in the insurance policy allowing for any such reimbursement.

The basic facts of the case involved a lawsuit filed by the NAACP against numerous firearms wholesalers and distributors for failing to reasonably and safely distribute its firearms to the public. The NAACP was asserting that this alleged negligence of the firearms dealers was the cause of injuries, deaths, and damages to NAACP members.

The insured in this matter, Jerry's Sports Center, was one of the defendant firearms dealers named in the underlying suit. American and Foreign Insurance Company defended Jerry's Sports Center under a reservation of rights and, when the carrier prevailed in its declaratory judgment action with a finding that it need not defend nor indemnify its insured under the circumstances of the lawsuit, the carrier sought to get back from its insured the defense costs it paid out to a New York City defense firm which costs were in excess of $300,000.

In its decision, the Supreme Court held that "an insurer is not entitled to be reimbursed for defense costs absent an express provision in the written insurance contract." Here, there was no such provision in the policy and, therefore, no reimbursement was allowed.

While this case involved a corporate insured, the decision appears to be a victory for the "little man" insured, protecting them from having to pay back insurance companies any defense costs in the event of a decision in favor of a carrier in a declaratory judgment action on the coverage/duty to defend issue (assuming there is nothing in the policy requiring the insured to reimburse the carrier in such circumstances).

To view the majority opinion by Justice Baer online, click on this link: http://www.aopc.org/OpPosting/Supreme/out/J-48-2009mo.pdf


To view the concurring opinion by Justice Saylor: http://www.aopc.org/OpPosting/Supreme/out/J-48-2009co.pdf


I thank my partner Sal Cognetti, Esquire for bringing this case to my attention.



Kincy v. Petro

In the case of Kincy v. Petro, 2010 WL 3222025 (Pa. Aug. 17, 2010, Todd, J.), the Pennsylvania Supreme Court ruled upon the effect of a trial court order consolidating, under Pa.R.C.P. 213(a), two separate actions involving different parties and different theories of liability "for all purposes."

The Court ruled that, in such circumstances, "such an order does not result in the complete consolidation of such actions, such that the pleadings are merged and/or the actions shed their separate identities."

The underlying facts shed light on the issue presented. This matter involved a motor vehicle accident. In the Plaintiff's vehicle were two injured parties, Alice Kincy as the driver and her brother Jerome Nixon as a passenger. The Defendant vehicle was owned by a Defendant-mother who had allowed Defendant-daughter to drive the vehicle.

For some reason, the Plaintiff-driver, Alice Kincy, filed suit only against the Defendant-owner. The Defendant-owner filed an Answer and New Matter identifying the daughter as the driver of the Defendant vehicle at the time of the accident. Nevertheless, the Plaintiff-driver never amended her Complaint or otherwise sued the Defendant-driver.

Meanwhile the Plaintiff-passenger, Jerome Nixon, had filed suit against both the Defendant-owner and the Defendant-driver.

Thereafter, a trial court judge issued an order consolidating the two lawsuits "for all purposes" including discovery and arbitration. At a later joint arbitration, a panel ruled against the Plaintiff-driver, Alice Kincy, but entered an award in favor of Plaintiff-passenger, Jerome Nixon. Mr. Nixon would eventually settle his case.

The Plaintiff-driver, Alice Kincy, appealed her case up to the court of common pleas level where both the Defendant-owner and Defendant-driver asserted in a summary judgment motion that the Plaintiff-driver failed to timely assert a valid claim of negligence against the Defendant-driver.

Kincy countered by arguing that the consolidation order merged her Complaint with Nixon's Complaint such that a valid negligence claim was indeed asserted against the Defendant-driver. She also filed her own motion for summary judgment with similar arguments. The trial court denied the cross motions for summary judgments without an opinion.

Later, however, a different trial court judge granted the Defendants' motion in limine to preclude the Plaintiff-driver from introducing any evidence against the Defendant-Driver who was not named in the Complaint at issue. That trial judge noted that, where the consolidation order involved actions having different parties, the order merely served to consolidate the two lawsuits, not merge them into one lawsuit. As such, the Defendants were granted a nonsuit at trial due to the failure to name the Defendant-Driver in the Complaint.

The nonsuit was upheld at the Supreme Court level. The Supreme Court's Opinion gives a nice analysis of the varying effects a trial court consolidation order may have.

Where there are identical parties, subject matter, issues and defenses, a consolidation order can result in a "complete consolidation," or merger of the actions into one lawsuit.

The Court rejected any notion that actions involving different parties, issues, or defenses could be completely consolidated, or merged into a single lawsuit, to be "untenable." Rather, such actions can be consolidated, or combined, for discovery purposes, for trial purposes, or both--but the cases still retain their separate identities under Pa.R.C.P. 213(a).

To view the majority Opinion of Justice Todd online, click on this link: http://www.aopc.org/OpPosting/Supreme/out/J-92-2009mo.pdf


To view the concurring opinion by Justice Saylor, click on this link:
http://www.aopc.org/OpPosting/Supreme/out/J-92-2009co.pdf




Applying this case to the cases that have been consolidated in the Post-Koken arena, it appears that, although those cases are combined to proceed under one caption, they remain their separate identities given that there are different parties involved on each side of the case.

The further import of this Kincy decision on those Post-Koken cases remains to be seen as those cases proceed toward trial across the Commonwealth.



I thank Attorney James Beck of the Philadelphia office of the Dechert LLP law firm for bringing this case to my attention.

Tuesday, August 17, 2010

TORT TALK Selected by LexisNexis as one of the TOP 50 INSURANCE LAW BLOGS in the U.S.

I have just been notified that Tort Talk was selected by the LexisNexis Insurance Law Community as one of the Top 50 Insurance Law Blogs in the United States!

I am grateful for all of the Tort Talkers who took the time to email their support for Tort Talk to LexisNexis. I send thanks again to all of you who have brought important cases to my attention to publicize--very much appreciated. I also thank the LexisNexis Insurance Law Blog Advisory Board for selecting Tort Talk for this honor. To paraphrase actress Sally Field, "You like the blog, you really like it!"

In its announcement of the top blogs selected, LexisNexis wrote, "These top blogs offer some of the best writing out there. They contain a wealth of information for all segments of the insurance industry, and include timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources."

In their specific reference to Tort Talk, LexisNexis wrote, "Recently nominated by the ILC Community, this blog provides updates, trends and thoughts about Pennsylvania Civil Litigation Law. It’s a nice mix of good writing, interesting topics and practical information for the insurance defense crowd."

Currently, Tort Talk has 378 subscribers. I have also been advised that, over the past year, it has also been cited as a resource on Post-Koken issues in several Federal Court Briefs and was mentioned at several oral arguments before various state level courts of common pleas.

The complete list of the Top 50 Insurance Law Blogs, in alphabetical order, can be viewed at this link:

http://www.lexisnexis.com/Community/insurancelaw/blogs/topblogs/archive/2010/06/22/insurance-law-community-s-top-50-insurance-blogs-for-2009.aspx



THANKS AGAIN FOR ALL YOUR SUPPORT. I HOPE TO KEEP YOU INTERESTED AND, AT TIMES, ENTERTAINED WITH MY WRITING.

Sunday, August 15, 2010

Studies Confirm Excessive Work Hours Decreases Productivity Levels


According to an August 11, 2010 online article entitled "Why Lawyers Should Work No More Than 40 Hours a Week" by Debra Cassens Weiss in the ABA Journal, about 100 years worth of productivity studies essentially all came to the conclusion that, after 40 hours at the office during any given week, one's work begins to suffer and become more error-prone.

As I have likewise recommended in several of my Pennsylvania Law Weekly articles, this article recommends limiting work hours to a reasonable number, limiting constant Blackberry use, focusing more on other parts of your life outside of work, and regular physical fitness as means to improve your practice and overall quality of life.

This short, but interesting, article can be viewed at:

Great Turnout Expected for CLE Seminar This Wednesday at the Mohegan Sun - PLEASE JOIN US

A great turnout is expected for the CLE seminar being put on by the Pennsylvania Defense Institute and the Northeastern Pennsylvania Trial Lawyers Association this Wednesday, August 18, 2010 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Presently, there are approximately 60 confirmed attorneys or claims professionals planning to attend the seminar and the following cocktail hour at Breakers in the Mohegan Sun Casino. Also, another 20 or so judges from all around the Northeastern Pennsylvania region expected to come to the cocktail hour.

The seminar begins with a 12:30 pm registration and will consist of a one hour Auto Law/Post-Koken Update by Attorneys Robert Panowicz and Daniel E. Cummins, a one hour Bad Faith Litigation Update by Attorneys Tim Lenahan and Suzanne Tighe, and a one hour ethics discussion on a variety of topics by an unbelievable panel of judges consisting of Third Circuit Court of Appeals Judge Thomas Vanaskie, Superior Court Judge Correale Stevens, Luzerne County President Judge Thomas Burke and Lackawanna County Judge Terrence Nealon.

There will also be an exciting raffle going on at the seminar designed to encourage the attendees to visit, again and again, the many table vendors who will be at the seminar to advertise their services. These vendors have paid a fee to secure a table to advertise at the event and it would be nice to see them get a number of visitors to make the event worthwhile to them as well.

Under the raffle, attendees will be permitted to submit their business card, or fill out a slip with their name and contact info to submit into a basket. At the end of the seminar, all of the entries will be gathered and winners will be chosen. The prizes include $50 Mohegan Sun gift cards (5 to give away), local Yankees baseball tickets, Phillies baseball tickets (2 sets to give away), and a $200 Mohegan Sun gift card. The Mohegan Sun gift cards can be used for the shops and restaurants and even to gamble at any time, including the night of the seminar.

You can still sign up to come to the seminar and cocktail hour if you'd like. As noted, it should be a great event to get your CLE credits and to network with fellow attorneys, claims professionals, and members of the state and federal judiciary. Please contact me for any more info on the event and how to reserve your spot. I can be reached at dancummins@comcast.net.

Saturday, August 14, 2010

Amicus Involvement Chronicled in National Email Newsletter for the Defense Research Institute

My recent work on the amicus position for the Pennsylvania Defense Institute in a defense win was recently chronicled in the The Voice, the national email newsletter of the Defense Research Institute.

The Defense Research Institute is a national organization I belong to made up of insurance defense counsel and claims professionals. It is a counterpart to the more local Pennsylvania Defense Institute in which I am a member of the Board of Directors.

The article can be viewed at the below link:

http://www.imakenews.com/dri/e_article001806004.cfm?x=bh7kWGt,bhNtT67r

Of course, past results are no guarantee of future results and each case must be handled on its own merits.

Sunday, August 8, 2010

Superior Court Judge Correale Stevens Added to Panel of Judges at Upcoming Mohegan Sun Seminar

On Thursday, August 5, 2010, I presented a Post-Koken Update at the Pennsylvania Defense Institute's CLE Seminar held at the Union League in Philadelphia. It was a nice turnout and a good networking event.

I now turn my attention to the final preparations for the upcoming August 18, 2010 CLE seminar being put on at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania by the Pennsylvania Defense Institute and the Northeastern Pennsylvania Trial Lawyers Association.

One great development is that Superior Court Judge Correale Stevens has been added to the panel of judges set to speak during the ethics hour. Already on the panel is U.S. Third Circuit Court of Appeals Judge Thomas I. Vanaskie, Luzerne County Court of Common Pleas President Judge Thomas Burke, and Lackawanna County Court of Common Pleas Judge Terrence R. Nealon.

I also note that there are approximately 20 judges from around the Northeastern Pennsylvania region who have indictated that they plan to attend the cocktail reception following the seminar. Also present will be some court administrators from different counties as well as claims professionals from various insurance companies (State Farm, Progressive, GEICO, Penn Millers Insurance Company, Guard Insurance, and Erie Insurance). It should be a great networking event for all who attend.

I also note that we currently have 13 table vendors set to appear at the seminar to advertise their litigation-related services. We will be running a raffle to encourage attendees to visit the table vendors. Every time an attendee visits a vendor (you can visit any one of them as many times at you want), the attendee can put their business card or provide their name and contact info on a slip of paper to be put into a drawing.

Presently, we have two sets of Phillies tickets, a set of local Yankees tickets, and 5 separate Mohegan Sun $50 gift cards to give away. The $50 Mohegan Sun gift cards can be used the night of the event at the shops and restaurants in the casino or even to gamble.

Here's the info on the upcoming seminar--hope to see you there:




THE PENNSYLVANIA DEFENSE INSTITUTE

and

THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION


Proudly Present a Continuing Legal Education Program On

“CIVIL LITIGATION DEVELOPMENTS 2010”


at the


MOHEGAN SUN CASINO at POCONO DOWNS
WILKES-BARRE, PENNSYLVANIA


Wednesday August 18, 2010


1 p.m. to 5 p.m.

Cocktail Reception (5-7 p.m.) at Breakers in the Mohegan Sun


2 Substantive and 1 Ethics CLE Credit


Auto Law Update

Bad Faith Update

Panel Discussion with Members of the Federal and State Judiciary

New Citations of Note

Here's the new Westlaw citation for the post-Koken opinionn in the case of Firoozifard v. Krome and State Farm, 2010 WL 2666306, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010 Beltrami, J.)(Court denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims; court also notes that insurance issues can be kept from jury and the task of applying third party credit to determine UIM award can be kept away from jury and handled by the court only after the verdict).




Also, here's the new Atlantic Second Reporter citation for the case of Gormley v. Edgar, 995 A.2d 1197 (Pa.Super. 2010)(The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly ruled that, where the Plaintiff made allegations in the Complaint that she sustained “anxiety” as a result of the accident, which is a recognized mental health disorder, the Plaintiff put her mental health status at issue. As such, the Superior Court found that the trial court properly ruled that the defense was entitled to discovery of medical records pertaining to the Plaintiff’s pre-accident mental health treatment records.).

Friday, August 6, 2010

Judicial News

Kagan Sworn Into U.S. Supreme Court

Elana Kagan was sworn in on Saturday, August 8, 2010 as the fourth woman to ever serve on the United States Supreme Court. Justice Kagan takes the spot vacated by Justice John Paul Stevens, who retired. She is expected to have a similar liberal bent.

There are now three women on the Supreme Court. Here's an Associated Press article by Mark Sherman commenting on the possible impact of the new makeup of the Court: http://www.lasvegassun.com/news/2010/aug/08/3-women-on-high-court-historic-but-impact-unclear/


Ciavarella Given February 2011 Trial Date

According to an August 6, 2010 article by Dave Janoski in Scranton's The Times-Tribune, the criminal jury trial on the bribery, extortion, and racketeering charges against former Luzerne County Judge Mark A. Ciavarella has been scheduled to begin with jury selection on February 7, 2010 before Judge Edwin M. Kosik in the U.S. Federal District Court for the Middle District of Pennsylvania.

Here's a link to the article: http://thetimes-tribune.com/news/ciavarella-jury-selection-in-february-1.926306

CHART YOUR COURSE - A CELEBRATION OF LIFE, TRAVEL, & FAMILY


Chart Your Course
A Celebration of Life, Travel, & Family

Sunday September 12, 2010
Radisson Hotel - Scranton

12pm to 3:30pm

Tickets: $50 or $350 for a table of 8.


CHART YOUR COURSE--A CELEBRATION OF LIFE, TRAVEL & FAMILY is an event for Crossing the Finish Line, a non-profit organization that assists young adult cancer patients, ages 24 to 50, and their families by giving them a “break from cancer.”

This organization offers a retreat from the unyielding physical and emotional demands of cancer treatment – a hopeful respite during the throes of a courageous battle – by providing a one week all-expense paid excursion to homes and resorts in Orlando, the Poconos, the Jersey Shore, California, and North Carolina.

Many families from our immediate area have been recipients of these travel experiences along with 821 families from PA, NJ, and Delaware.

The event promises a 3 course luncheon at the Radisson along with an exciting raffle with great prizes. The Keynote speaker is Suzanne Fisher Staples author of the award winning Under the Persimmon Tree.

Marci Schankweiler, the Crossing the Finish Line Founder/President and 2010 recipient of the National People Magazine/MLB Stars Among Us Award will also speak along with 2 local women who have received respite travel from Crossing the Finish Line.

To understand the lasting effects of this fantastic organization, please visit this link for a local woman’s story and slide show http://www.crossingthefinishline.org/sailor-detail.asp?id=24

Please support this great cause by attending the event, sponsoring the event, giving a prize for the raffle, or making a donation. For more information on the Chart Your Course Fundraiser visit http://gallery.crossingthefinishline.org/goto/chartyourcourse ; email chart_your_course@verizon.net or call 570-498-2595.

In the alternative you can forward your request for sponsorship, donation, raffle prize, or your request for tickets to my attention at Foley, Cognetti, Comerford, Cimini & Cummins, 507 Linden Street, Suite 700, Scranton, PA 18503. Checks can be made out to "Crossing the Finish Line."


As over 300 people have been sent invitations to purchase tickets to this event, it is anticipated that this will be a well-attended event by members of the local community. A sponsorship of this event will therefore also turn out to be a worthwhile advertising effort in support of a great cause.


Thanks for your consideration of this request for your support.

Wednesday, August 4, 2010

GUEST POST: Recent Superior Court Cases Handed Down on Learned Intermediary Rule

I received permission from Attorney James Beck of the Philadelphia office of the Dechert LLP law firm to reprint the below July 30, 2010 post from his Drug and Device Law Blog, an excellent resource for continuing updates on that topic:

NEW DEFENSE LEARNED INTERMEDIARY WINS IN PENNSYLVANIA

This week the Superior Court of Pennsylvania (the intermediate appellate court) issued two new opinions on warning causation in the context of the learned intermediary rule. Cochran v. Wyeth, Inc., ___ A.2d ___, No. 2838 EDA 2008, slip op. (Pa. Super. July 27, 2010), and Owens v. Wyeth, No. 185 EDA 2009, slip op. (Pa. Super. July 26, 2010) (memorandum).

Both of these cases arise from the few remaining fen-phen cases in Philadelphia County, which involve primary pulmonary hypertension as the claimed injury. Obviously, Cochran is the more important of the two, because it will be published, and is precedential.

Cochran involved a peculiar warning claim. The plaintiff conceded that the warnings regarding primary pulmonary hypertension were adequate. Instead she claimed that the warnings about valvular heart disease (VHD) - a condition she admittedly never contracted - were inadequate, and that had the prescribing physician been warned of that risk (as opposed to PPH), he would not have prescribed the drug.

Obviously, opening up the entire warning to inadequacy attacks, regardless of the injury actually suffered, would have been a major increase in the scope of liability. Fortunately the Superior Court didn't buy the theory:

Here, [defendant] allegedly breached its duty in failing to disclose the risk of VHD, and Appellant’s injury was PPH. The risk of VHD did not develop into the actual injury of VHD. Although [the prescriber] testified in his deposition that he would not have prescribed [the drug] to Appellant had he known of the risk of VHD, this does not alter the fact that [defendant] failed to disclose the risk of VHD and Appellant suffered from PPH. In these circumstances, the relationship between the legal wrong (the failure to disclose the risk of VHD) and the injury (PPH) is not directly correlative and is too remote for proximate causation. Therefore, as a matter of law, there is no proximate, causal connection between [defendant's] failure to disclose the risk of VHD and Appellant’s specific injury.

Cochran, slip op. at 14-15.

In Owens - which as an unpublished opinion is neither precedential nor even citable in Pa. state court - the prescriber knew all about the risk of PPH. He testified he would have prescribed notwithstanding a black box (which wasn't on the drug at the time) because the risk of a fatal obesity-related disease (diabetes) was much worse. Slip op. at 8-9.

Owens also had the VHD/PPH issue, but the physician testimony didn't support but for (as opposed to the proximate causation rationale in Cochran) causation. Slip op. at 11.

Owens also affirmed dismissal of three novel claims. The first was "negligent marketing," which the Superior Court limited strictly to overpromotion:

Appellant next argues that her claim for “negligent marketing” is cognizable under Baldino v. Castagna, 478 A.2d 807 (Pa. 1984). Indeed, our Supreme Court has recognized a cause of action against a drug manufacturer when over-promotion of a drug effectively nullifies adequate warnings. See Baldino, 478 A.2d at 810. However, in her complaint, Appellant did not make any averments that [defendant] marketed [the drug] in a manner that negated its warnings concerning [the drug's] risks. Therefore, Appellant’s alleged “negligent marketing” claim does not fit within the rubric of Baldino’s over-promotion cause of action, and fails to state a claim upon which relief could be granted.Owens, slip op. at 12-13.

The second novel claim to bite the dust was “negligent failure to withdraw [the drug] from the market” - a failure to recall claim. The Superior Court joined unanimous precedent in rejecting that theory:

Appellant’s contention lacks merit. In [a prior case], this Court refused to recognize a duty to retrofit a product. Following the natural direction . . ., this Court is persuaded by the majority of modern jurisdictions that have decided not to impose a common law duty to recall on a manufacturer. We conclude, accordingly, that in Pennsylvania, a drug manufacturer does not have a duty to withdraw or recall a prescription drug from the market.Owens, slip op. at 13 (citations omitted).

The third novel claim was "negligent failure to test":

Pennsylvania law has not recognized an independent tort for negligent failure to test. In fact, this Court has held that the claim for negligent failure to test is not a viable cause of action recognized by our courts.Owens, slip op. at 14 (citation and quotation marks omitted).

--Posted By Bexis to Drug and Device Law at 7/30/2010 08:00:00 AM

Another Decision in Favor of Consolidation Out of Luzerne County

On July 29, 2010, Judge Tina Polachek-Gartley issued a single Order in the companion cases of Mitkowski v. Nationwide, No. 582-Civil-2010 (Luz. Co. July 29, 2010, Gartley, J.) and Mitkowski v. Stefanec, No. 17284 - Civil - 2008 (Luz. Co. July 29, 2010, Gartley, J.) that served to consolidate the Plaintiff's UIM claim with the Plaintiff's claim against the tortfeasor.

The Motion to Consolidate was filed by the UIM carrier, Nationwide Insurance. In the Order, Judge Gartley noted that the two causes of action arose out of the same occurrence, i.e. the motor vehicle accident, and that each case had factual questions relevant to the other case.

This raises the number to four (4) in terms of Luzerne County decisions in favor of the consolidation of Post-Koken claims. There are no Luzerne County decisions in favor of the severance of these types of claims.

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


I thank Attorney Shawna R. Laughlin of the Moosic, PA law firm of Thomas J. Kelley & Associates and Attorney Neil O'Donnell of the O'Donnell Law Offices in Kingston, PA for bringing this case to my attention

Tuesday, August 3, 2010

Former Luzerne County Judge Michael T. Toole Benefits from Recent U.S. Supreme Court Ruling

According to an August 2, 2010 article by Dave Janoski in the Scranton Times-Tribune, the recent United States Supreme Court decision ruling the honest services fraud statute unconstitutionally vague has erased a fraud count that could have sent former Luzerne County Judge Michael T. Toole to federal prison for up to 20 years. According to the article, the former judge is now only facing a tax evasion count that could result in a lesser sentence.

For more information, here is a link to the article:
http://thetimes-tribune.com/news/u-s-supreme-court-ruling-erases-charge-against-former-luzerne-judge-toole-1.917904

Monday, August 2, 2010

Superior Court Rejects Application of Regular Use Exception to U.S. Post Office Garage/Maintenance Worker

In a July 29, 2010 decision in the case of Dixon v. GEICO, 2010 WL 2950318 (Pa.Super. July, 29, 2010, Bender, J. Ott, J., Kelly, J. - Opinion by Kelly, J.) , the Pennsylvania Superior Court reversed a trial court decision which applied the "regular use" exclusion to preclude UIM coverage for a garage man employed by the U.S. Post Office injured while delivering a repaired postal vehicle.

The injured party worked for the U.S. Postal Service at a repair and maintenance facility in Philadelphia as a garage man. His duties included, in part, the maintenance of the postal vehicles and driving them to various post offices to then be used by the mailmen. He was involved in an accident while driving a postal vehicle and in the process of delivering the vehicle to a post office.

The tortfeasor paid his $15,000 liability limits. The U.S. Post Office was exempt from having UIM coverage and did not otherwise purchase any UIM coverage on the vehicle.

The injured party therefore turned to his own personal automobile insurance policy with GEICO for underinsured (UIM) motorists coverage. GEICO denied the UIM claim under its "regular use" exclusion which precluded UIM coverage to an insured "When using a motor vehicle furnished for the regular use of you, your spouse, or a relative who resides in your household, which is not insured under this policy."

In its ruling the Superior Court reiterated the findings of prior decisions that the "regular use" exclusion was not against public policy and did not violate Pennsylvania's Motor Vehicle Financial Responsibility Law.

The Superior Court disagreed with the trial court's finding that there were no issues of material fact on the extent of the use of the vehicle by the injured party. The Superior Court noted that there were pending factual issues on whether the injured party's use of the vehicle was regular or "habitual" as well as whether the vehicle was, under the terms of the exclusion, "furnished or available" for regular use by the injured party. The case was therefore remanded back to the trial court for a jury determination on these coverage issues.

In so ruling, the Dixon court noted that the Pennsylvania Supreme Court was considering a similar UIM "regular use" exclusion issue in the still not decided case of Williams v. GEICO, 986 A.2d 45 (Pa. 2009), which involves a police officer injured while driving a police vehicle.

Here's a link to the Superior Court's decision in Dixon v. GEICO:
http://www.pacourts.us/OpPosting/Superior/out/a19034_10.pdf


I send thanks to Attorney Scott Cooper, Esq. of the Harrisburg firm of Schmidt Kramer for publicizing this case on LinkedIn.com.

Sunday, August 1, 2010

The Curse of Snooki

Please allow me to digress from the law to come to the defense of my (former) home state, New Jersey. Yes, I am originally from New Jersey (don’t tell anyone). Let me clarify as I have done in the past and will likely do for the rest of my life, I am from SOUTH JERSEY.

New Jersey as a whole is currently under attack from a barrage of trashy reality shows, leaving the rest of the nation with misguided perceptions of the Garden State. I ask that when you watch those shows (we know you do), that you think the following:

Jersey Shore: NORTH JERSEY

The Real Housewives of New Jersey: NORTH JERSEY

Jerseylicious: NORTH JERSEY

All of these shows are set and cast in North Jersey. Draw a line across the state at Trenton (around Exit 7A on the Turnpike), look above that line and over by the New York City area. Heck, the people in Jersey Shore are mainly New Yorkers thrown together in a house in a North Jersey shore town.

Now, I don’t necessarily disagree that these New Jersey reality shows might accurately depict a certain element of people from North Jersey—I just want it known that things are different, better, in South Jersey where I’m from (I mean,really, do you think a South Jersey guy like myself could ever get away with calling himself “The Situation”?).

Sure, we may have had our share of bright, yellow Camaro Iroc Zs and guys with more gold around their necks than Fort Knox in South Jersey. Yes, there is a certain element in South Jersey that will kick you at least three times when you're down and out in a fight (but not five times, like in North Jersey). By and large, however, things are much more pleasant in South Jersey.

Think of South Jersey as being made up of sprawling, green suburbia and farmland compared to the dingy, on-top-of-each other rowhouses in North Jersey in the shadows New York City and the oil refineries and chemical plants off the Turnpike and Garden State Parkway.

Think of the beautiful southern New Jersey shorelines in family-friendly Brigantine, Longport, and Ocean City compared to (Yuck!) Seaside Heights, Point Pleasant and other North Jersey Beaches.

Think of nice roadways through the Pine Barrens in South Jersey lined with vegetables stands overflowing with Jersey tomatoes, peaches, blueberries and corn compared to the monstrous five (5) lanes in each direction Garden State Parkway in North Jersey.

To further clarify the distinction, note that South Jersey primarily has Phillies and Eagles fans compared to the obnoxious Mets, Yankees, and Giants fans of North Jersey.

So, please, when you are caused to think of New Jersey by these reality shows or any other negative publicity, remember that there’s North Jersey (what you’re negatively thinking of about Jersey) and South Jersey.

Aaaah, I feel better now—thanks for letting me get that off my chest. Speaking of chests, I read that Snooki was thrown in jail last night. One North Jersey character down, many more to go.

Pennsylvania Law Weekly Articles on Consolidation vs. Severance of Post-Koken Cases by Daniel E. Cummins, Esquire

Over the past two months, I published a two-part article on the consolidation vs. severance issue in Post-Koken cases in the Pennsylvania Law Weekly, a statewide legal publication. Here is a republication of those articles together for your future reference.

These articles are reprinted here with permission from the Pennsylvania Law Weekly.(c) 2010 Incisive Media US Properties, LLC.


Insurance
A Growing Need for Guidance
Trial courts struggle with consolidation vs. severance issue in post-Koken cases


Daniel E. Cummins
The Legal Intelligencer
June 29, 2010



The gale-force winds of change brought on by "Hurricane Koken" continue to wreak havoc in the common pleas courts across the state as trial court judges struggle, without any appellate guidance, to determine whether a variety of post- Koken automobile accident litigation claims should proceed in a consolidated fashion under one caption.


This first part of a two-part column will review those "ordinary" post- Koken cases involving the issue of whether the third party claims against the responsible party defendant may proceed to a jury in a consolidated fashion with the companion underinsured or uninsured motorists benefits claims against the injured party's own automobile insurance carrier.


In next month's column, the trial courts' struggles over the same issue in post- Koken cases that involve bad faith claims will be analyzed.


In all scenarios involving this consolidation versus severance issue, there is a growing split of authority in Pennsylvania trial courts that is creating an increasing need for appellate guidance.


In fact, as noted below, there are even splits of authority within some county common pleas courts. This lack of a consistent common law on the issue leaves the bar and trial court judges with great uncertainty on the issue.


The Initial Preference


It has been about five years since the automobile accident litigation landscape was changed by a 2005 state Supreme Court case, Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken) .


In Koken , the high court ruled for the first time that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of disputed uninsured and underinsured motorist benefits claims.


Thereafter, many carriers got rid of the arbitration clauses in their policies, leaving UIM and UM claims to be litigated by way of lawsuits filed in the trial courts.


One of the first issues that repeatedly came to the attention of the trial courts, typically by way of preliminary objections, was whether these new UIM or UM claims could be pursued in the same lawsuits and under the same captions as the third party claims against the defendant tortfeasors who caused the accidents.


As noted in my November 2009 article on this topic, "Two Roads Diverged," the first number of trial court judges to address this issue ruled in favor of allowing for the consolidation of these UIM and third party claims. By November 2009, there were at least 15 trial court decisions addressing the issue, all of which had ruled, or suggested they would rule, in favor of keeping these claims together under one caption to proceed to a jury trial in a consolidated fashion.


Concisely, these initial decisions were handed down in Lackawanna, Luzerne, Pike, Lehigh, Dauphin, Beaver, Allegheny and Philadelphia counties.


Among those judges who were the first to hand down opinions on this issue were Lackawanna County Common Pleas Court Judge Carmen Minora and Allegheny County Common Pleas Court Judge R. Stanton Wettick.


The common and overriding rationale of the consolidation decisions is that the claims arising out of the same "transaction or occurrence," i.e the same motor vehicle accident, should be tried together as a means of furthering the interests of judicial economy for the already overburdened trial courts. Another factor noted is the avoidance of piecemeal litigation with the possibility of inconsistent verdicts.


These post- Koken claims arising out of a single accident have been allowed to stay together under the permissive joinder of actions provision found in the Pennsylvania Rules of Civil Procedure at Rule 2229 or, in the alternative, under Rule 213(a) which allows for the consolidation of actions arising out of the same occurrence.


The judges in favor of consolidation seem unfazed by the fact that keeping the third party liability claims together with the UM/UIM claims will bring the topic of "insurance" in front of the jury at trial.


Although Pennsylvania Rule of Evidence 411 and its supporting caselaw precludes the mentioning of any form of insurance at personal injury trials, these judges have generally noted that the statute precluding a mention of "insurance" at trial expressly provides that insurance issues may be mentioned at trial where that topic may be relevant. Here, the mentioning of "insurance" is relevant to the litigation of the uninsured or underinsured motorist claim, the judges ruled.


Since those initial decisions, however, the storm has shifted course.


Other trial court judges, some of whom are even members of the bench in the aforementioned counties, have ruled in favor of severing the third party liability claims from the UM/UIM claims.


A Run The Other Way


Led by two Butler County Common Pleas judges, S. Michael Yeager and Marilyn J. Horan, judges who support the severing third party liability claims from UM/UIM claims have created run of decisions in favor of their rulings.


Yeager and Horan appear to have written the first opinions in favor of severance. Other judges, from York and Adams counties, have followed suit.


The main rationale put forth in those severance decisions is primarily that evidence of "insurance" is not admissible in personal injury civil litigation matters under Pa.R.E. 411. These courts have also referred to Pa.R.E. 403, which allows a trial court to preclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…."


The fact that the third party tortfeasor defendant may be unduly prejudice by having the UM/UIM insurance company as a co-defendant in front of a jury in violation of the Rules of Evidence seems to be the main reasoning of the courts in favor of severing the claims for the protection of the tortfeasor's right to a fair trial.


Some of the courts in favor of severance have also noted that the act of severing and staying the UM/UIM claim pending the resolution of the third party liability claim furthers the interest of judicial economy.


For example, in those cases where the jury comes back with a verdict in the liability lawsuit that is less than the tortfeasor's liability policy limits, there would be no need to litigate the UIM claim.


In total, there have been at least 16 decisions in favor of severance and at least 22 decisions in favor of consolidation.


This split of authority on the consolidation versus severance of post- Koken cases cries out for appellate guidance to bring certainty on the issue to the bench and bar.


Further compounding the need for appellate guidance on this issue is the fact that there are now splits of authority in a few counties. In both Lackawanna County and Philadelphia, for example, there have been decisions handed down on both sides of the issue.


A Little Help Here?


While the need for appellate guidance on this issue is great, the likelihood that such appellate guidance may be forthcoming anytime soon is not so great.


In order to get to the Superior Court to address the consolidation versus severance issue, which is typically raised by way of preliminary objections, permission to appeal on an interlocutory basis must be secured by the litigants from the trial court.


Understandably, most plaintiffs attorneys will not want to delay their client's claim for a year or more in order to take the case to the appellate arena. Similarly, defense counsel seeking permission to pursue such an appeal have an uphill battle in securing permission from trial court judges who do not want to delay an injured party's recovery or want cases languishing on their docket.


The only other way this issue might go up the appellate ladder is on the merits after a trial and on an appeal from post-trial motions. With many post- Koken cases still only in discovery, the chances for this type of review on appeal remains far off.


Therefore, until appellate guidance on this issue is secured, members of both sides of the motor vehicle accident bar will have to weather the storm on a county by county basis.


To reiterate, there are currently at least 22 decisions in favor of the consolidation of these claims with those decisions coming out of Lackawanna, Luzerne, Pike, Lehigh, Dauphin, Beaver, Allegheny, Philadelphia and Northampton counties. There are now at least 16 decisions in favor of the severance of claims with those decisions coming out of Butler, York, Adams, Lackawanna and Philadelphia counties.


Hopefully, one wise trial court judge will soon grant a party permission to file an interlocutory appeal on the consolidation versus severance issue in post- Koken cases so that this important issue can be addressed and settled by the Superior Court and, perhaps, even the Pennsylvania Supreme Court, once and for all. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com. It features a "Post-Koken Scorecard," which provides a synopsis of trial court post-Koken decisions uncovered to date.


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Insurance


Not Unlike the Other
Post-Koken decisions on consolidation vs. severance issue reach same conclusion



Daniel E. Cummins
The Legal Intelligencer
July 27, 2010



In last month's column, I reviewed the ongoing struggles of trial court judges from across the state in weathering the onslaught of "Hurricane Koken" and the novel issue of whether third party liability claims and the UM/UIM claims should be allowed to proceed in a consolidated fashion. With this article, I address those post-Koken cases that involve bad faith claims.


Since the publication of last month's column, however, at least two more trial court decisions on the issue were handed down — one in favor of severance and one in favor of consolidation of post-Koken claims. The statewide numbers now stand at 22 trial court decisions in favor of consolidation and 18 in favor of the severance of claims.


In the most recently noted consolidation decision, Firoozifard v. Krome, Northampton County Common Pleas Court Judge Anthony S. Beltrami issued a well-written opinion in which he provided what appears to be an appropriate and workable framework for handling the "insurance" at the trial of a consolidated third party negligence/UIM case.


Essentially, Beltrami noted that the identity of insurance parties could be kept out of the caption when it is displayed or described to the jury. He also noted that the post-Koken trial should proceed as an ordinary civil trial, the recognized purpose of which, under Pennsylvania law, is to seek a determination of the truth of the liability and damages claims.


That is, there should be no reference to "insurance" issues that have no bearing on the truth of the underlying claims presented by the plaintiff and disputed by the defendant. Beltrami also seemed to recognize that the inclusion of the insurance issues would also only serve to needlessly and hopelessly confuse a jury comprised of lay people yanked from their daily lives and reluctantly sitting in the jury box.


Rather, Beltrami noted that the extraneous issues pertaining to the applicable insurance policy limits of the third party liability carrier and the UIM carrier should be handled separately by a learned trial court judge in a post-verdict proceeding to mold the jury's verdict as may be necessary. In other words, after the jury is thanked and sent home, the trial court judge could simply "do the math" of applying the amount of the third party defendant's liability limits to the verdict to determine whether or not any UIM benefits are due from the UIM carrier.


It remains to be seen whether other trial courts across Pennsylvania will adopt this manner of running a consolidated post-Koken trial.


Now, onto the second part of this column.


Almost Down the Middle


Similar to the "ordinary" post-Koken cases involving only third party liability claims and the companion UIM claims, there is an equally increasing need for appellate guidance on various issues pertinent to the bad faith cases as well.


A serious split of authority among the trial courts has developed on the question of whether post-Koken claims involving bad faith claims should be allowed to proceed in a consolidated fashion under one caption or be severed into two separate matters.
There are, to date, at least five decisions that have been uncovered across the state in favor of consolidation and seven decisions in favor of the severance of the bad faith claim from the UIM claim.


The decisions in favor of the consolidation have been written by Allegheny County Common Please Court Judge R. Stanton Wettick Jr., Clinton County Common Pleas Court Judge J. Michael Williamson, Montgomery County Common Pleas Court Judge Arthur R. Tilson and Lackawanna County Common Pleas Court Judge Carmen D. Minora.


On the other side of the matter, the decisions favoring the severance have been handed down by Butler County Common Pleas Court Judge Marilyn J. Horan, Bucks County Common Pleas Court Judge Clyde W. Waite, Delaware County Common Pleas Court Judge George A. Pagano and Lackawanna County Common Pleas Court Judge Robert A. Mazzoni.


There are also decisions in favor of severance in Allegheny County, but those cases appear to involve unique facts that take them out of the ordinary analysis.


Also, while there appears to be a split in the authority out of Lackawanna County, the end results may be the same.


Minora's decision to allow the claims to remain consolidated in Decker v. Nationwide involved the slightly different context of a declaratory judgment action combined with a bad faith claim against the same carrier.


Mazzoni's decision in Augustine v. Erie Insurance involved a more typical post-Koken case in which the bad faith claim was allowed to remain consolidated for discovery purposes but would be severed for trial purposes.


Consistent in Reasoning


The decisions on both sides of the consolidation vs. severance issue are ultimately consistent in their overall reasoning. They just have different methods on how to approach and resolve the issue of pre-trial discovery on the bad faith portion of a post-Koken suit.


In the case of Gunn v. Auto. Insurance Co. of Hartford and again in Wutz v. Smith and State Farm Insurance Co., Wettick set up a discovery timetable in cases where UIM breach of contract claims were allowed to remain consolidated with bad faith claims. The timetable called for the UIM claim to proceed first to a jury trial with no discovery on the bad faith claim until the UIM claim was concluded by jury verdict.


In Wutz, State Farm's attorney, Daniel L. Rivetti of Robb Leonard Mulvihill in Pittsburgh, argued that the carrier would obviously be prejudiced in terms of the negotiations and the trial on the UIM side, if the carrier were required to preliminarily produce its UIM claims file for review by the plaintiff. In a great analogy, Rivetti argued that allowing for such discovery "would be akin to requiring the defense in a football game to furnish its defensive formation for the upcoming play to the plaintiff before the plaintiff selected the play that it would call."


Wettick agreed with the carrier's argument and held that the UIM claim's file need not be produced in these types of bad faith cases until after the UIM portion of the claim is submitted to the jury.


Under Gunn and Wutz, once the UIM portion of the jury trial was concluded by a verdict, the UIM carrier was required to turn over its discoverable information to the court for an in camera review with the discoverable portions being finalized and then turned over to the plaintiff.


At that point, the case would then immediately proceed to a bench trial on the bad faith claim. The same judge who just presided over the jury trial on the UIM claim would handle the bench trial.


Wettick's rationale was that the trial court judge who presided over the UIM jury trial would have the evidence of the case fresh in his or her mind to then turn to and address the bad faith trial issues.


This is sensible.


Wettick also created a mechanism whereby the plaintiff, instead of going right to the bad faith trial, could request a continuance in order to review the discovery produced from the UIM carrier's file, conduct any other discovery deemed necessary and plan out her or her case-in-chief.


Those trial court decisions that have ruled in favor of severing the bad faith claim from the UIM claim, such as Horan's ruling in Marburger v. Erie Insurance Exchange, appear to have done so primarily on the same basis that the bad faith claim should be stayed and no discovery in that regard should be allowed until the UIM claim is resolved.


Thus, the severance decisions appear to be following the same discovery timetable called for by Wettick in the consolidated cases. They just accomplish the identical result by severing the cases and formally staying the bad faith claim until the conclusion of the UIM claim.


Similar to the split of authority on the consolidation vs. severance issue in the "ordinary" post-Koken cases, it does not appear that the same interlocutory issue in the bad faith context will be able to proceed up the appellate ladder anytime soon.


As such, both the bench and bar at the trial court level will have to litigate these issues on a county-by-county basis for the indefinite future. For this reason, it remains important that these trial court decisions in post-Koken cases continue to be publicized whenever and wherever possible. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com. It features a "Post-Koken Scorecard," which provides a synopsis of trial court post-Koken decisions uncovered to date.