Friday, January 28, 2011



Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011
1 p.m. - 5 p.m.

Followed by a Cocktail Reception at the
Breakers Nightclub
in the Mohegan Sun Casino

The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

The TORT TALK EXPO 2011 will include door prizes for every attendee and chances to win raffle prizes (gift cards, sporting event tickets, etc.). There will also be vendor tables for attendees to visit with a variety of service providers in the legal field.

A portion of the proceeds from this event will be donated to the Janet Weis Children's Hospital in the Geisinger Health System in Danville, Pennsylvania.

The CLE Program will include the following topics and presenters:

The Tort Talk Top Ten (or so) Cases
Presenter: Daniel E. Cummins, Esquire

Little League Tips for Big League Lawyers
Presenter: Daniel E. Cummins, Esquire

Anatomy for Lawyers: Neck and Back
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates
Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon

A View From the Bench:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire
Judicial Panel Members to be Determined

Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:3o p.m.

Costs to cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives and risk managers $25.00

Lawyers who are Tort Talk Email Subscribers

Lawyers who are not Tort Talk Email Subscribers

Make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to




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

For more information, contact Dan Cummins at 570-346-0745 or at


Thursday, January 27, 2011

Lackawanna County Judge Chester T. Harhut To Take Senior Status

Judge Chester T. Harhut has advised that he will be moving to senior status on the Lackawanna County Court of Common Pleas at the end of 2011. This will create a vacancy on the Lackawanna County bench beginning 2012.

Here is a link to the story in an article by Boris Krawczeniuk in today's Times-Tribune in Scranton. Note that this article was written just before the Judge announced his decision. As noted above, he has decided to go to senior status:

Saturday, January 22, 2011

Two More Philadelphia County Post-Koken Decisions in Favor of Severance

Last week, two more decisions in favor of the severance of post-Koken claims were handed down by the Philadelphia Court of Common Pleas, by Order only, on the basis of filings by the tortfeasor defendant:

Saltzburg v. Haynes and State Farm, November Term, 2010, No. 03227 (Phila. Co. Jan. 14, 2011 Tereshko, J.)(Preliminary Objections of tortfeasor defendant on basis of improper venue and improper joinder of third party negligence case with UIM case; claim against tortfeasor dismissed without prejudice to Plaintiff's right to re-file in Montgomery county).

Pascal v. Nalbondian, et al., July Term, 2010, No. 2118, Control No. 10121229 (Phila. Co. Jan. 14, 2011, Fox, J.)(Tortfeasor's motion to sever negligence claims from claims filed against UIM carrier granted).

With the addition of these two cases to the Post-Koken Scorecard there are now at least 34 decisions across the Commonwealth in favor of the consolidation of these claims and 22 in favor of severance.

The breakdown county-by-county is much closer. There are now at least 10 counties that have ruled in favor of consolidation (Beaver, Cambria, Clinton, Dauphin, Erie, Lawrence, Lehigh, Luzerne, Montgomery, Northampton, and Pike Counties)

There are at least 8 counties that have ruled in favor of severance (Adams, Butler, Delaware, Lancaster, Mercer, Schuylkill, Washington, and York Counties).

Several counties, including Lackawanna, Montgomery, Philadelphia, and arguably Allegheny have a split of authority on the issue amongst the judges in their own court system.

Note that this compilation is not represented to be exhaustive and there may be other decisions out there that I have not yet come across.

Federal Middle District Court Judge Caputo Enters Summary Judgment on Bad Faith Claim in Favor of Carrier in Post-Koken Case

Recently, on December 28, 2010, Middle District Federal Judge A. Richard Caputo granted summary judgment in favor of Progressive Casualty Insurance Company in the post-Koken bad faith case of Calestini v. Progressive Insurance Company, slip copy, 2010 WL 5437278, 3:09-CV-1679 (M.D.Pa. Dec. 28, 2010, Caputo, J.)(mem. op.).

This case was previously publicized here on Tort Talk when Judge Caputo denied efforts by the defendant carrier to bifurcate and stay the bad faith claim from the UIM claim. Click here to review the prior post:

In this more recent Opinion, Judge Caputo granted summary judgment in favor of the carrier on the bad faith claim after finding that "the Plaintiff has failed to bring forth clear and convincing evidence of bad faith on the part of the Defendant in handling Plaintiff's UIM claims."

In this case, the record revealed that, in addition to a number of other traumatic injury-producing events, the Plaintiff had been involved in a 2005 car accident and a 2006 car accident. The Plaintiff was pursuing UIM claims against Progressive relative to these two car accidents.

The Plaintiff filed a single Complaint covering claims arising out of both the 2005 and 2006 accidents. The Complaint alleged two breach of contract claims and two bad faith claims, i.e. one set of claims for each of the two accidents.

The Court rejected the Plaintiff's argument that the carrier's previous proposal that the UIM claim arising out of the 2005 accident be tried together with the negligence claim against that tortfeasor amounted to bad faith conduct.

Judge Caputo stated that "[n]othing about Defendant's proposal to try the negligence claim and the UIM claim together undermined or was inconsistent with the logic of the UIM coverage." The court noted that, in making such a proposal, the carrier was still on the hook to pay UIM damages if warranted by such a jury verdict. The court also appeared to agree with Progressive's contention that the proposal would have benefited the Plaintiff in avoiding the trouble and expenses related to two separate lawsuits.

The Court also rejected the Plaintiff's allegation that the UIM carrier failed to expeditiously evaluate the claims presented. In this matter, the Plaintiff had an extensive prior medical history and there were questions as to what injuries were related to the 2005 accident versus what injuries were caused by the 2006 car accident. The court noted that, although the carrier was eventually given an expert report by the Plaintiff separating out the injuries from the 2005 accident and the 2006 accident, the carrier only had "several days" to review that report before the bad faith claims were filed.

Judge Caputo concluded that "[g]iven the number of accidents Plaintiff has been involved in over the past six years and the extensive injuries he allegedly suffered, it is reasonable that Defendant would want to conduct a thorough investigation of the injuries and have all of the requisite documents and records before it before settling Plaintiff's claim."

The court also noted that the carrier's actions in this matter of desiring to conduct additional discovery on the causation issues was further supported by the opinion of the defense IME doctor who raised questions as to the causation and extent of injuries issues.

For these reasons, the court granted summary judgment in favor of the carrier on the bad faith claim.

The bad faith expert for the prevailing defendant carrier was Attorney David Cole (email:, who also happens to be the Executive Director of the Pennsylvania Defense Institute. The prevailing defense attorney was Robert Dapper, Esquire of the Pittsburgh office of Dapper, Baldasare, Benson, Behling & Kane, P.C.

Tuesday, January 18, 2011

Trivial Defect Case out of Philadelphia County

On December 13, 2010, Judge Levin of the Philadelphia County Court of Common Pleas issued an Opinion supporting entry of a compulsory non-suit in favor of a property owner after ruling that a defect in the sidewalk that was only 5/8 of an inch was a trivial defect as a matter of law in the case of Alston v. Commonwealth, PICS Case No. 11-0061 (Phila. Co., Dec. 13, 2010, Levin, J.).

In this case, the injured party had previously secured a settlement from the City of Philadelphia and PennDOT due to her injuries from a fall on a city street. The City of Philadelphia proceeded to trial against the property owner to recover the money the City paid in settlement on the grounds that the property owner was secondarily liable to the Plaintiff.

Judge Levin pointed to the fact that the City's own liability expert conceded at trial that there were thousands of city sidewalks with elevation levels of less than one inch. The court also noted that there were numerous appellate decisions finding deviations greater in size than the one at issue in this matter did not provide any basis for liability against a property owner.

The court further stated that "[i]t is simply unreasonable and utterly unrealistic to hold municipalities and property owners to a standard of care of maintaining pavement in pristine condition."

Rather, court found that the standard is reasonable care depending upon the surrounding the circumstances. Applying this standard, the court asserted that it properly entered a compulsory non-suit in favor of the property owner.

Anyone desiring a copy of this case (for a small fee) may contact the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and provide the above-referenced PICS Case Number.

Source: "Digest of Recent Opinions" in January 18, 2011 Pennsylvania Law Weekly.

More Post-Koken Decisions in Favor of Consolidation

Below are summaries of three more recent Post-Koken decisions, all of which come down in favor of the consolidation of the claims against a tortfeasor and the UIM carrier under one caption.

By my count under the updated Post-Koken Scorecard (which is thorough but may not be exhaustive) there are at least 34 decisions from around the Commonwealth in favor of consolidation of claims and at least 20 decisions in favor of severance. Click here to view the Post-Koken Scorecard here on Tort Talk:

To date, there still has been no appellate decision on point.

Dauphin County

I was notified of a post-Koken Order that came down in Dauphin County back on September 10, 2010. In the case of Schaeffer v. Bonny and Donegal Group, No. 2010 - Civil - 4547 (Dauph. Co., Sept. 10, 2010, Coates, J.), Judge Bernard L. Coates, Jr. denied preliminary objections filed by tortfeasor defendants and the UIM carrier and allow the claims filed by the Plaintiff against the tortfeasor to remain consolidated under one caption with the claims against the UIM carrier.

This is at least the fourth decision out of Dauphin County in favor of consolidation.

The prevailing attorney in the Schaeffer case was Attorney Matt Crosby of Handler, Henning & Rosenberg, LLP in Harrisburg, PA.

Cambria County

With its recent decision in two matters, the Cambria County Court of Common Pleas makes its first appearance on the Post-Koken Scorecard.

On January 10, 2010, an en banc opinion was issued in the Cambria County post-Koken case of Link v. Eckenrode and State Farm, No. 2009- Civil - 1312 (Cambria Co., Jan. 10, 2011)(Opinion by President Judge Timothy P. Creany, Concurrence by Judge David J. Tulowitzki, and Dissenting Opinion by Linda Rovder Fleming). The issue presented was whether negligence claims should be allowed to proceed in a consolidated fashion with UIM claims under one caption.

In its Opinion, the en banc panel of the Court of Common Pleas of Cambria County also addressed the same issue as presented in the separate case of Lydick v. Keilman, No. 2010- Civil - 1700 (Cambria Co., Jan. 10, 2011, Creany, J.).

The majority opinion essentially relied upon the interests of judicial economy in holding that it would allow the plaintiff to join the third party and UM or UIM claims in the same proceeding particularly where the cases involve the same or similar questions pertaining to the liability and damages issues.

The majority noted that the issues attendant with introducing insurance into the trial setting, including the potential implication of the collateral source rule, can be "overcome by cautious trial management in presenting insurance evidence to the jury so as not to taint either party.

The court also stated that the jury could be instructed that, in the event the plaintiff recovers, contractual relationships would then determine whether the plaintiff's own insurance company is liable as well.

In her dissenting Opinion, Judge Fleming pointed to the current split of authority among the trial courts across the Commonwealth and indicated that a collection of these decisions was "compiled through the diligent efforts of Daniel E. Cummins, Esquire" in a recent Pennsylvania Law Weekly article. See Link at p. 2, n. 1.

Judge Fleming noted that, in her assessment of the question presented, the potential prejudice to a tortfeasor defendant by the introduction of insurance issues at trial outweighed any interest of judicial economy and, as such, she would have erred on the side of caution, in favor of a severance of claims.

Anyone desiring a copy of the above-noted decisions may email me at

I send thanks to Attorney Steve T. Mahan a third year law student at Widener and a law clerk at the Harrisburg law firm of Handler, Henning & Rosenberg, LLP, Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, and Attorney Paul Oven of the Moosic, Pennsylvania law firm of Dougherty, Leventhal & Price for bringing these cases to my attention.

Sunday, January 16, 2011

Important Rule Changes Pertaining to Pre-Trial/Settlement Conferences Go Into Effect

Here is a link to the Pennsylvania Supreme Court of amendments to Pa.R.C.P. 212.3, 215 and 216, pertaining to pre-trial conferences and settlement conferences, which became effective January 15, 2011.

Of note is the following new provision to Rule 212.3, pertaining to Pre-Trial Conferences:

"A court may require, pursuant to a court order, various parties to attend a pre-trial conference, including an insurance or similar representative, who has authority to negotiate and settle the case."

The Rule goes onto state that, if the Pre-Trial Conference is set up without any Court order regarding the attendance of an insurance representative with settlement authority, such a person is still required by the terms of the Rule to attend the conference in person "or be promptly available by phone."

Here is a link to all of the amendments to the Rules noted as contained in the January 8, 2011 Pennsylvania Bulletin:

I send thanks to Attorney Dave Cole, Executive Director of the Pennsylvania Defense Institute, for bringing these Rule changes to my attention.

Friday, January 14, 2011

Lokuta Loses Appeal

On Friday, January 14, 2011, the Pennsylvania Supreme Court issued an Order upholding the December 9, 2008 decision of the Pennsylvania Court of Judicial Discipline that resulted in the removal of Judge Ann Lokuta from the bench of the Luzerne County Court of Common Pleas.

For more on the story, click here to read a January 15, 2011 article by Terrie Morgan-Besecker from the Times Leader:

Wednesday, January 12, 2011

Say It Ain't Snow: Summary Judgment Granted in Commercial Premises Slip and Fall Case

On January 11, 2011, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued an opinion in the slip and fall case of Weinkopff v. Mericle, No. 2008 CV 568 (Lacka. Co. Jan. 11, 2011, Nealon, J.), in which he thoroughly reviewed both the liabilities of a commercial landlord and tenant under a lease agreement and the ongoing validity of the Hills and Ridges Doctrine.

According to the opinion, the record revealed that, on March 7, 2007, Weinkopff was employed by RCN Telecom Services, Inc. which leased office space in Mericle’s building.

Due to a combination of ongoing wintry weather and continuing foot traffic on the day of the incident, the floor mats located at the entrance to the Mericle building had snow and ice present on them. As the Plaintiff walked in from the winter conditions and across the first floor lobby area of the building en route to work at approximately 9:00 a.m., she slipped and fell on water which had originated from the snow and ice that was caused by the continuous precipitation that day and which melted in the lobby area.

The Plaintiff sued Mericle and defendant Charles E. Petras d/b/a Charles E. Petras Landscape Design (“Petras”) who had been retained by Mericle to clear snow and ice from the property.

Mericle joined its tenant RCN, i.e. the Plaintiff's employer, as an additional defendant. Mericle, as the landlord Defendant asserted that the Mericle-RCN lease agreement obligated RCN to maintain the lobby and common areas free from liquid or other hazards.

This matter came before Judge Nealon by way of Mericle's filing of a motion for summary judgment.

In his Opinion, Judge Nealon reviewed in great detail the application of the law of contracts pertaining to the interpretation of the various duties imposed upon a landlord and a tenant under the terms of a commercial lease. In the end, the court viewed the contractual language of the lease agreements as placing the duty upon RCN to maintain the lobby floor where the Plaintiff fell.

Judge Nealon also rejected the Plaintiff's attempt to impose liability against Mericle as the landlord defendant under the Hills and Ridges Doctrine. After providing a thorough analysis of the current status of that doctrine under Pennsylvania law, the court rejected the Plaintiff's contentions in this regard.

Judge Nealon noted that even though snow was tracked into the building and had accumulated on the floor mats inside the doors of the building, the evidence was that the Plaintiff slipped and fell on a pool of water in the lobby of the building, and not on any hill or ridge of ice or snow.

As such, the court granted the motion for summary judgment of the landlord Defendant, Mericle, for the reasons noted above.

I highly recommend reviewing this case for its in-depth analysis of landlord-tenant liability in slip and fall matters in the commercial context as well as the continuing validity of the Hills and Ridges Doctrine. This Opinion could come in handy and serve to kickstart your research the next time you find yourself faced with similar issues.

Anyone desiring a copy of this Opinion may contact me at
Photo: Lackawanna County Courthouse where Judge Terrence R. Nealon sits.

A Growing Trend in Post-Koken Pleadings?

On January 7, 2010, Judge Arthur J. Schwab of the United States District Court for the Western District of Pennsylvania issued a post-Koken decision in the case of Rubin v. State Farm, slip copy 2011 WL 61175, 10 CV 1651 (W.D.Pa. Jan. 7, 2011, Schwab, J.)(mem. op.) in which the court denied the UIM carrier's Fed.R.C.P. 12(b)(6) Motion filed in response to the Plaintiff's breach of contract claim based upon the carrier's failure to pay UIM benefits.

The court basically found that, in reviewing the Complaint in a light most favorable to the plaintiff, it was readily apparent that the plaintiff had stated a valid cause of action upon which relief may be granted.

Of note is the fact that, during the proceedings, the plaintiff's counsel withdrew the stated claims for bad faith and violations of the Unfair Trade Practices and Consumer Protection Law as being "premature."

The plaintiff also chose to abandon a claim that the carrier breached of a fiduciary duty of of utmost good faith and fair dealing by not including the same in the Amended Complaint that was under consideration in this matter. The Plaintiff also abandoned a negligence asserting claim asserting that the carrier had acted negligently in handling the UIM claim presented.

This case evidences a push-back by carriers, in the form of filing 12(b)(6) motions in federal court and preliminary objections in state court, in response to being faced with multiple claims at the outset in post-Koken cases, some of which claims may be arguably premature or even inapplicable under the circumstances presented.

It remains to be seen whether the trend in post-Koken cases of plaintiffs taking a streamlined approach and simply filing an initial breach of contract count on the UIM claim, as opposed to taking a shotgun approach and including any and all possible or potential claims against a UIM carrier, will continue.

I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for sending this case to my attention.

Tuesday, January 11, 2011

Latest UM Bad Faith Decision of Note

Senior U.S. District Judge Maurice B. Cohill Jr., of the Western District Federal Court, recently issued the latest uninsured (UM) motorist benefits Bad Faith decision of note in the case of Wisinski v. American Commerce Group Inc., slip copy, 2011 WL 13744 (W.D.Pa. Jan. 4, 2011, Cohill, J.).

In Wisinski, the plaintiff asserted that the carrier had breached the contract of insurance, violated the Section 8371 bad faith statute, and conducted unfair trade practices in violation of Pennsylvania's Motor Vehicle Financial Responsibility Law with its handling of the claim.

By way of background, the plaintiff allegedly injured both knees in the accident and eventually required injections in both knees, arthroscopic repair, and bilateral knee replacement surgery. The plaintiff's medical expenses in this regard were over $40,000 and she also presented a wage loss claim.

During the course of the UM claim, the UM carrier pointed to the plaintiff's prior medical history of knee trouble and viewed the case as an aggravation of pre-existing conditions case.

The carrier at one point represented that the limits were only $50,000 but later corrected that to note the available limits were actually $100,000.

The UM carrier offered $7, 798 to settle the matter early in the claim. As the case proceeded, the carrier eventually coughed up its $100,000 limits.

Then in settlement, the carrier presented the claimant with a release that contained language requiring the plaintiff release any bad faith claims against the carrier. Plaintiffs counsel would not agree to such language and secured a revised release.

The case thereafter proceeded into this bad faith litigation. After reviewing the cross-motions for summary judgment filed by the parties, the court granted in part and denied in part each of the motions. In his decision Judge Cohill found, by clear and convincing evidence, that the insurer, American Commerce Group, Inc., also known as ACIC, acted in bad faith in five ways:

-by misrepresenting the uninsured motorists policy limits;

-by refusing to arbitrate the claim despite clear arbitration language in the policy;

-by misleading the insured about its intentions to appeal an arbitration award;

-by presenting unreasonably low settlement offers; and

-by unreasonably delaying payment of the settlement funds and attempting to have the plaintiff waive future claims against it for bad faith.

The courts ruling left for a jury decision only the issue of the amount of damages the plaintiff was entitled to under the circumstances presented.

Judge Cohill's decision reads as a thorough primer on the handling of UM claims.

Copies of the 34-page opinion in Wisinski v. American Commerce Group Inc. , PICS No. 11-0068, are available from The Legal Intelligencer/Pennsylvania Law Weekly and can be secured by calling the Pennsylvania Instant Case Service at 800-276-PICS (7427) to order or for information.

Source: "Federal Judge Finds 'Intentional' Bad Faith on Insurer's Part" by Shannon P. Duffy, Legal Intelligencer Jan. 11, 2011).

Friday, January 7, 2011

Pennsylvania Superior Court Skirts Post-Koken Consolidation vs. Severance Issue

Tort Talkers may recall that I previously reported on the Allegheny trial court decision in Richner v. McCance and Erie Insurance Group, GD 09-2578, 2045 WDA 2009 (Alleg. Co. Feb. 17, 2010)(Third party claim against defendant driver and separate declaratory judgment action on UIM coverage issue allowed to proceed in a consolidated fashion; court leaves the door open to bifurcate at time of trial, if necessary.).


That decision went up on appeal and, a couple of days ago on January 6, 2010, the Pennsylvania Superior Court issued a decision reversing the trial court decision and holding that the injured party could not join his tort claim with a count in the Complaint for a declaratory judgment raising the coverage question surrounding the applicability of an exclusion in the Erie Insurance Company's policy. Richner v. McCance and Erie Insurance Group, 2011 WL 32499, 2011 Pa.Super. 4, No. 2045 WDA 2009 (Pa.Super. Jan. 6, 2011, Stevens, Donohue, and Ott, JJ.).

The Superior Court applied Pa.R.C.P. 2229(b), pertaining to the joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question. More specifically, the court found that, although the tort allegations and the coverage question essentially both arise out of the same accident, the liabilities of the respective defendants arise from different circumstances, i.e. one in tort and the other in contract law.

The court also found that the questions of law at issue were not common to both actions. As such, the second requirement of Pa.R.C.P. 2229(b), i.e. common questions of law or fact, was not met to allow for a joinder of a tort claim with a declaratory judgment request on a coverage issue.

In so ruling the Superior Court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits under Pa.R.C.P. 2229(b), as the analysis in those types of cases was "inapposite" to the issue in this case involving the separate and different question of the combination of a tort claim with a request for a declaratory judgment in response to a coverage question. Id. at p. 17, n. 4.

In that same footnote, the Superior Court also stated, "We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims." Id.

Despite this proviso by the Superior Court, this Richner decision is the closest the court has come to addressing the all-important consolidation vs. severance post-Koken issue and this opinion is sure to be referenced once that issue is ever squarely before the Superior Court.

As such, the Superior Court's decision in Richner appears to be a must-read for practitioners handling post-Koken automobile litigation matters. Tort Talk provides you with this link to the opinion online:

I send a note of congrats to Attorney Phillip R. Earnest of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP as the prevailing attorney in this appeal.

Thursday, January 6, 2011


Tort Talk has just gone over the 500 email subscribers mark!! Unbelievable. Thanks again for following Tort Talk, for contributing to the blog, and for spreading the word. I appreciate it and I am very grateful. I am working to see if I can put on a Tort Talk CLE Seminar later this year--I will keep you advised as to my efforts in this regard. My hope is to be able to put on a seminar somewhat different (and better) than any one you have ever been to before. Thanks again, Dan

Wednesday, January 5, 2011

Yet Another Decision in Favor of Consolidation Out of Luzerne County

On December 30, 2010, Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued an Order, without Opinion, in the Post-Koken case of Johns v. Cooper and GEICO, No. 9153 - Civil - 2010 (Luz. Co. Dec. 30, 2010, Burke, J.) denying the tortfeasor Defendant's Preliminary Objections and Motion to Sever.

As support for his decision, Judge Burke cited to another Luzerne County decision, Borthwick v. Webb and GEICO, 100 Luz. Reg. Reports 135 (2010).

As such, the trend in Luzerne County continues to be to allow the claims against the tortfeasor defendant and the UIM carrier to proceed to trial in a consolidated fashion. See Post-Koken Scorecard:

Yet again, the prevailing attorneys in this case were from the O'Donnell Law Offices in Kingston, Pennsylvania. I thank that firm for forwarding this decision to my attention.

Anyone desiring a copy of the court's Order in this matter may contact me at

Monday, January 3, 2011

Greetings From Scranton, Pennsylvania

I offer the above vintage nighttime picture of my office building, the Scranton Electric Building, as a reminder to you that I am located in Scranton, Pennsylvania. Looking at the photo, my office window is actually the second rounded window from the left near the top. My firm, Foley, Cognetti, Comerford, Cimini & Cummins ( is located on the seventh floor of this historic building. As we all venture into 2011, I want to thank you again for reading Tort Talk--I hope it has been (and continues to be) helpful in your practice and the handling of your claims. Please do not hesitate to contact me should I be able to provide you with any more information on any of the topics you see on Tort Talk or any assistance in Northeastern Pennsylvania. For more information on myself or my firm, please click this link to my online resume: Thanks, Daniel E. Cummins, Esquire


Insurance Law

State Route 2010: A Look Back at Automotive Insurance Law

Changes in direction of Pennsylvania auto law require litigators to stay alert


Daniel E. Cummins
Pennsylvania Law Weekly // The Legal Intelligencer
January 04, 2011

The dominating topic in Pennsylvania automobile litigation continues to be the evolution of the new common law associated with the Post-Koken cases in which negligence claims against third-party tortfeasors are joined with the contractual claims against UM/UIM carriers under one caption.

Trial courts across the state are nearly split down the middle in terms of whether these claims should be allowed to proceed through trial in a consolidated fashion or whether they should be severed into separate matters.

Currently, 31 trial court decisions across 11 different counties have ruled in favor of consolidation, while 20 trial court decisions from 12 different counties have ruled in favor of severance of claims.

Courts in Philadelphia, Allegheny and Lackawanna counties arguably have developed a split authority on the issue.

To date, there have been no appellate decisions on the issue.

However, the Superior Court will have a chance to address this issue next year in Thomas v. Titan Auto Insurance, a case out of Philadelphia that is at the briefing stage.

One of the main divisive issues the courts face is how to handle the issue of evidence of "insurance" at trial.

While Rule 411 generally mandates that evidence of insurance is not admissible, there is an exception in the rule to allow the admission of evidence where it may be relevant to the claims presented.

Plaintiffs have argued that the amount of the tortfeasor's liability insurance in these cases is relevant to the determination of whether the tortfeasor is "underinsured" such that the plaintiff is entitled to UIM benefits.

The defense has typically argued that insurance is not admissible and that the jury should review only the merits of the case. Any insurance issues could be handled by the court in post-verdict molding proceedings after the jury has been sent home.

This procedure was recommended by various trial courts this year, including the Northampton County Common Pleas Court in a June decision in Firoozifard v. Krome.

Another early, recurring issue in these types of cases is proper venue.

Late in 2009, the Superior Court in O'Hara v. The First Liberty Insurance Corp . upheld a UIM carrier's forum selection clause that required a lawsuit be filed in the county in which the insured resided at the time of the accident.

However, there have been a variety of common pleas court decisions across the state on how to handle the issue of proper venue of a post- Koken case where the UIM carrier's policy does not contain a forum selection clause.

In 2011, the Superior Court will get a chance to weigh in on the issue.

Appeals from a trio of separate cases, including the Philadelphia cases Sehl v. Neff and the aforementioned Thomas, as well as the Luzerne County case Wissinger v. Brady, are before the court.

2009's Decisions Carry On

A couple of 2009's biggest auto law decisions carried over to 2010.

In late 2009, for instance, the Superior Court handed down a monumental UIM decision in Pusl v. Means, which held that where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third-party defendant tortfeasor, the third-party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the UIM benefits already secured by the plaintiff.

Surprisingly, the state Supreme Court denied allocatur on the issue in March, leaving the Superior Court's decision the law of the land and drastically changing how auto law matters are litigated.

As a result of the Pusl decision, many plaintiffs' litigators are reverting to the practice of resolving third-party claims before moving to UIM claims.

Another 2009 case that was reaffirmed in 2010 is Sackett III .

In Sackett v. Nationwide Mutual Insurance Company, the Superior Court held a trial court correctly decided on remand that a vehicle was not added under a newly/after acquired vehicle clause in an insurance policy and the insurer should have therefore had the insured sign a new rejection-of-stacking form in order for non-stacking to apply.

While traveling up and down the appellate ladder, it was asserted by the insured's attorneys that he should be deemed to have stacked limits because he never formally rejected stacking.

In Sackett III, the Superior Court agreed that the insured should be considered to have stacked UIM coverage.

UIM Credits Get Bigger

In an April decision from the Superior Court, D'Adamo v. Erie Insurance Exchange, it was decided that a tortfeasor's automobile insurance liability coverage as well as his separate personal umbrella or excess policy should be considered in determining the total credit due to a UIM carrier.

In D'Adamo, a consolidated case involving two injured couples traveling in the same vehicle, a UIM arbitration panel determined each couple was entitled to a gross award of $850,000.

However, the panel also determined the carrier was entitled to a credit in the amount of the policy limits of the tortfeasor's automobile insurance policy and his umbrella or excess policy.

Each couple had already received the $250,000 limit under the tortfeasor's automobile policy and $500,000 limit from the tortfeasor's personal umbrella policy.

Relying upon an exhaustion clause in Erie's policy, the court rejected the couples' argument that the offset or credit due to the UIM carrier should not include the tortfeasor's coverage from non-automobile insurance policies, such as the umbrella policy owned by the tortfeasor. Therefore, each couple was left with a net award of $100,000.

Better Late Than Never

In July, the Supreme Court ruled in Vanderhoff v. Harleysville Insurance Co. that an insurance company was required to prove prejudice relative to a late reporting to a carrier in order to support a denial of uninsured motorists benefits to its insured.

In Vanderhoff, the subject accident was allegedly reported to law enforcement officials within 30 days of the accident, as required. However, the insurance company did not receive notice until about eight months after the accident.

Wage Loss Claims

The Supreme Court handed down another long-awaited decision in April.

In Tannenbaum v. Nationwide, a doctor severely injured in an accident was able to secure Social Security disability benefits, along with disability benefits from a group plan offered by his former employer-hospital, and additional benefits under two personal disability policies.

He then sued the tortfeasor, settled and turned to his insurer, Nationwide, for UIM benefits. A dispute arose between the parties as to whether Nationwide was entitled to an offset on the disability benefits.

In an opinion authored by Justice Thomas G. Saylor, the court held that §1722 of the Motor Vehicle Financial Responsibility Law precluded the plaintiff from pleading, proving and recovering as damages in an underinsured motorist claim any items of income loss otherwise paid by the disability insurer.

A case of first impression, the court confirmed that the MVFRL was designed to eliminate the collateral source rule in auto cases, thus preventing the plaintiff from receiving a double recovery with respect to income loss.

As such, the court overruled a Superior Court ruling and held that Nationwide was indeed entitled to an offset in the amount of the disability benefits previously received by the injured party.

'Offensive' Collateral Estoppel

In a May decision, the Superior Court shot down a plaintiff's tactic of securing a UIM arbitration award in a clear liability rear-end accident case and then attempting to argue that the tortfeasor was thereafter collaterally estopped from arguing the issue of damages on the lawsuit side of the case.

In Catroppa v. Carlton, State Farm provided $50,000 in liability coverage to the tortfeasor defendant and was also coincidentally the UIM carrier for the injured party. There were $50,000 in UIM benefits available.

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

Thereafter, on the lawsuit side of the case, the plaintiff filed a motion for summary judgment, arguing that since both parties were State Farm insureds and since the tortfeasor was in privity with State Farm through that carrier's liability policy issued to her, the tortfeasor should be considered to have participated in the UIM hearing.

The plaintiff argued that the tortfeasor should be bound in the third-party action by the previous UIM award, because State Farm had assigned counsel to represent its interests in that matter and the State Farm arbitrator did not dissent from the UIM panel's decision.

The Superior Court rejected the argument and noted that the crucial element of collateral estoppel — that the parties be the same in both actions — was not met, as the tortfeasor obviously did not participate in the UIM proceedings.

The Superior Court also stated that, although the tortfeasor was in privity with State Farm by virtue of her liability policy with the insurance company, she was not in privity with the carrier in terms of the entirely separate UIM policy it had with the injured party.

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

As such, the so-called tactic of "offensive" collateral estoppel was rejected.

Debris Debates in UM Cases

A line of cases came down in 2010, holding that where a single vehicle accident is caused by debris in the roadway from an unknown or unidentified source, an uninsured motorist carrier does not need to provide UM benefits when its policy requires an injured party to show the accident was caused by the maintenance or use of another vehicle.

In the somewhat novel Pike County Common Pleas Court case Adragna v. State Farm, summary judgment was secured in favor of the carrier in a declaratory judgment action. It is noted that the author of this article and his partner, Timothy E. Foley, handled this matter for State Farm.

In Adragna, the claimant was pursuing an uninsured motorist claim under a State Farm policy based upon a single car motor vehicle accident allegedly caused when the claimant swerved and lost control of her vehicle while trying to avoid debris on the roadway. No proof was produced as to how the debris came to be on the road.

The State Farm policy allowed coverage for injuries caused to an insured "by an accident that involves the ownership, maintenance, or use of an uninsured motor vehicle as a motor vehicle."

The judge in the case, however, ruled that even if the injured party's presumption in Adragna that the debris in the form of insulation bundles must have come from a vehicle was accepted as true, it did not matter. The injuries would still be deemed to have been caused by the debris — not another vehicle, as required by the policy.

In another case on the same issue, the Montgomery County Common Pleas Court also entered summary judgment in favor of a carrier where a claimant was injured after striking a dead deer on the Pennsylvania Turnpike.

In Erie Insurance Co. v. Chong, summary judgment was entered in favor of the carrier after the plaintiff failed to produce any competent evidence showing how the carcass ended up on the road.

A similar result was reached in yet another debris case out of Bucks County, Erie Insurance v. Sciss.

In that case, which was decided in May, the judge ruled that a motorcyclist injured as a result of debris was not entitled to UM benefits.

In one of the most recent notable cases of 2010, the Pennsylvania Superior Court handed down a decision on Dec. 10, holding that a plaintiff may secure delay damages in a post- Koken case against a UM carrier even though the amount of such damages goes above the UM limits available under the policy.

Delay Damages in UM Cases

In the case of Marlette v. State Farm, the plaintiffs obtained a jury verdict against the UM carrier for $550,000 along with loss of consortium damages for the plaintiff's spouse. The available UM policy limits were only $250,000.

The trial court then molded the verdict to reflect the policy limits of and other credits due, resulting in a verdict of $233,306.98 for the husband. The court then calculated delay damages by applying the appropriate interest rates to the molded verdict. The plaintiffs and State Farm both appealed.

The Superior Court rejected State Farm's contention that its exposure was set by its policy limits. In so ruling, the court pointed to analogous decisions, which did not involve the policy limits issue, supporting the awarding of delay damages beyond agreed upon caps on a defendant's exposure. The Marlette court also noted that State Farm's current policy language arguably allowed for delay damages beyond the policy limits in the UM context.

Looking at the language of Rule 238 and noting the policy considerations behind the rule, including the encouragement of settlements, the Superior Court also agreed with the plaintiff's contention that the calculation of the delay damages award should have been based on the jury's original verdict and not the lower, molded verdict.

As such, the Superior Court remanded the case back to the trial court for a proper calculation of the delay damages based on the jury's original verdict.

What to Watch For in 2011

There are a number of cases under advisement, or scheduled to be heard, by the Supreme Court that auto law litigators should keep an eye on.

In April, for instance, the court heard arguments regarding two important issues in separate UIM cases.

In Heller v. Pennsylvania League of Cities and Municipalities, the justices are reviewing whether a person receiving workers' compensation benefits may be subject to an insurance exclusion and thereby be precluded from also recovering UIM benefits.

The second matter pending before the court, Williams v. GEICO, involved a state police trooper who was injured in an on-the-job accident and filed a UIM claim with his personal insurance carrier, GEICO, because his employer did not carry UM/UIM coverage on its vehicles. GEICO applied the "regular use" exclusion under its policy to deny coverage. The trooper is challenging that exclusion and GEICO's denial.

The court's decision in Williams could have a major impact on first responders, who may be without UIM coverage under the current law.

Litigators are also anxious to see how the high court will rule in GEICO v. Ayers, a case the court accepted in July to address whether an insurance company can deny inter-policy stacking to an insured who has all his or her vehicles insured through the company and has not waived stacking.

By way of background, GEICO insured two motorcycles and two pickup trucks on separate policies.

The plaintiff, who had elected stacking and was involved in an accident while on one of the motorcycles, was denied UIM benefits under the policy insuring the pickup trucks. GEICO cited the household exclusion.

The household exclusion basically states that the insurance company that issued the policy does not have to provide coverage for accidents involving another vehicle in the insured's household that is covered by another, different insurance company.

The plaintiff has argued that the exclusion was invalid since, although GEICO insured all the vehicles, the carrier made him put the motorcycles on a separate policy. The trial court agreed with that argument and invalidated the exclusion. The Superior Court reversed in a memorandum decision. Now, the Supreme Court has the case.

The household exclusion has, to date, withstood many attacks. The distinctive fact in this case is that the same carrier issued all of the policies in the household. It remains to be seen how the high court will address the matter this time around.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. A summary of a number of Post-Koken decisions on the above issues can be found on his blog, . To access them, click the 'Post-Koken Scorecard' on the right-hand column.