Tuesday, March 29, 2011

Judge Van Jura of Luzerne County Addresses Effect of Release Between Original Parties on Claims of Contribution Between Defendants

In a March 23, 2011 Opinion, Judge Joseph Van Jura of the Luzerne County Court of Common Pleas addressed the issue of the effect of a Release entered into by a Plaintiff and an original Defendant upon claims for contribution by the original Defendant against an Additional Defendant in the case of Hartzell v. Saxe, No. 5503 of 2002 (Luz. Co. March 23, 2011, Van Jura, J.).

The Hartzell case arose out of a motor vehicle accident. The Plaintiffs sued original Defendants, Saxe and Medico. The original Defendants joined in certain additional defendants including Additional Defendant, Redmond.

The trial court emphasized that both the original Complaint and the Praecipe for Writ to Join Additional Defendants were filed within the applicable two year statute of limitations.

In their Joinder Complaint, the original Defendants included a prayer of relief demanding judgment against the Additional Defendant, Redmond “solely and/or for contribution and/or for indemnity on the causes of action alleged by the Plaintiffs….”

Judge Van Jura reviewed the Uniform Contribution Among Tort-Feasors Act, 42 Pa. C.S. §8324(c), which provides that “a joint tort-feasor who enters into a settlement with the injured persons is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement."

In this matter, the Additional Defendant filed a Motion for Summary Judgment alleging that the original Defendants were unable to establish the necessary elements for a claim of contribution against the Additional Defendant given the Release entered into by the Plaintiff and the original Defendant.

The Court noted that, when the original Defendants entered into a settlement with the Plaintiffs by way of a Release, the terms of that Release provided that the Plaintiffs were releasing the original Defendants for any and all claims in full settlement.  The Release also contained language confirming that the Release did not extend to the Additional Defendants, including Additional Defendant Redmond.

As such, the Additional Defendant Redmond argued that the Release in question did not extinguish his liability to the Plaintiff as required under 42 Pa. C.S. §8234(c) and that, therefore, the original Defendants were precluded from pursuing a claim of contribution against the Additional Defendant.

Although the original Defendants produced evidence showing that the Plaintiff did not have any intention of moving forward upon its case any further and had filed a Praecipe for Discontinuance of the Plaintiffs’ claims only, Judge Van Jura nevertheless held that the Additional Defendant Redmond was entitled to summary judgment on the original Defendant’s contribution claim, because the Release in question in this matter could not be construed to extinguish the potential liability of the Additional Defendant to the Plaintiff.

This issue kind of hurts your head when you try to think it through.  Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

Another Decision in Favor of Consolidation out of Dauphin County

On March 21, 2011, Judge Scott Arthur Evans of the Dauphin County Court of Common Pleas issued a post-Koken Order in the case of Wolfe v. Hans and Progressive, No. 2010-CIVIL-11199 (Dauphin Co. March 21, 2011 Evans, J.), denying severance in response to Preliminary Objections and a Motion to Sever filed by the tortfeasor Defendant.

The prevailing attorney is Steven D. Stambaugh of the York, Pennsylvania office of Stambaugh Law, P.C.

This is the fifth decision out of Dauphin County in favor of consolidation.  Click here to view the Post-Koken Scorecard on TortTalk.com:  http://www.torttalk.com/2009/12/new-and-improved-updated-list-of-post.html.

Anyone desiring a copy of this Order (without Opinion) may contact me at dancummins@comcast.net.

Superior Court Rules on Election of UM/UIM Coverages Issue

In a case of semantics, the Pennsylvania Superior Court recently ruled in the case of Nationwide v. Catalini, 2011 WL 1089873 (Pa.Super. March 25, 2011, Bowes, Donohue, and Olsen, JJ.)(Opinion by Bowes), that an insured's signed form calling for an increase in their bodily injury liability coverage did not require an equal increase in the UM/UIM limits under the policy.

The dispute revolved around the inclusion of the language on the form stating "leave the other coverages the same."

The insureds argued that that language meant that they intended the UM/UIM coverage to be increased to the same amounts of the liability coverage. More specifically, the insureds wanted to bump up their UM/UIM coverage from $25,000/$50,000 to $100,000/$300,000.

Nationwide disagreed and asserted that the language at issue meant that the insured intended to increase only the liability coverage and keep the UM/UIM coverage the same as it was before the change in liability coverage was requested.

The Superior Court sided with the carrier's position and essentially ruled that the carrier did not have to obtain a new election form specifically regarding the UM/UIM coverage as the insureds had previously executed and submitted a form on the desired coverages in that regard a few years before this issue arose.

Here's a link to the Opinion online if you interested in reading it: http://www.pacourts.us/OpPosting/Superior/out/a29025_10.pdf

Source: Gina Passarella, "Increase in Bodily Injury Limits Doesn't Require New UM/UIM Elections, The Legal Intelligencer (March 29, 2011).

Northeastern Pennsylvania Schools Fare Well in Statewide Mock Trial Competition

Here is a link to a write-up on the website of Wyoming Seminary High School (Kingston, Luzerne County, Pennsylvania), this year's champions of the statewide high school mock trial competition: http://www.wyomingseminary.org/page.cfm?p=299&newsid=159

Congratulations to the Wyoming Seminary High School students and their Attorney Advisors Frank Brier, Cathy O'Donnell, and Neil O'Donnell.

On a related note, Scranton Prep High School made it to the semi-finals and had as their Attorney Advisors John O'Brien and Judge Mannion.

Update on Luzerne County Matters

Here is a link to an article by Mark Guydish in the March 25, 2011 Times Leader providing an update on the case against former Luzerne County Judge Toole: http://www.timesleader.com/news/Attorney-says-he-and-Judge-Toole-created-a-paper-trail-for-beach-house.html?searchterm=Toole

Sunday, March 27, 2011

ARTICLE: Negligent Infliction of Emotional Distress Claims in Medical Malpractice Cases

My article, "A Suspension of Common Sense," which analyzed the evolution of the common law claim for negligent infliction of emotional distress and recent issues regarding that type of a claim in medical malpractice cases, was published in last week's Pennsylvania Law Weekly.

The article may be viewed by scrolling down to the JDSupra.com box in the right hand column of the blog and clicking on the link to the article or by clicking this link:


Thursday, March 24, 2011

Another Victory for Insurance Company in Debris in the Road Case

On March 2, 2011, Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania granted a Motion for Judgment on the Pleadings in favor of Allstate Insurance Company based upon a Complaint for declaratory relief in the case of Allstate v. Squires, Civil Action No. 10-1458 (W.D. Pa. March 2, 2011, Conti, J.).

In this case, the issue was whether an insured can bring a claim for uninsured motorist benefits when he was involved in an automobile accident after swerving to avoid a box on the roadway that apparently came from a phantom vehicle.

Based upon the reasoning set forth in the Smith, Terwillinger, and the Adragna cases (the Adragna case was handled by my firm), Judge Conti found that Allstate did not have an obligation to extend uninsured motorist coverage since the accident at issue did not arise from the ownership, maintenance, or use of an automobile.

I send thanks to the prevailing attorney R. Sean O’Connell of the Pittsburgh law firm of Robb Leonard Mulvihill for forwarding this Decision to my attention.

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

Another Luzerne County Post-Koken Decision in Favor of Consolidation

On March 16, 2011, Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued an Order denying the tortfeasor Defendant’s Preliminary Objections on the issue of consolidation of claims in the post-Koken case of Kush v. Rogowski and Progressive, No. 12760-Civil-2010 (Luz. Co., March 16, 2011, Burke, P.J.).

In Kush, the tortfeasor Defendant filed Preliminary Objections and the UIM carrier simply filed an Answer to the Complaint. I was advised that the tortfeasor Defendant raised the usual arguments of misjoinder and prejudice but also made this objection:


Under that preliminary objection, the tortfeasor Defendant asserted that the Plaintiff should not be permitted to join her underinsurance action in the underlying tort action unless and until Plaintiff has established that any and all preconditions to payment have been satisfied under the terms and conditions of her personal policy of insurance issued by Progressive.

As noted, the Court overruled the tortfeasor Defendant’s Preliminary Objections. In doing so, Judge Burke cited with a “See” signal, the case of Borthwick v. Webb and GEICO, 100 Luz. Reg. Reports 135 (2010).

As such, this Kush decision represents another Luzerne County decision in favor of the consolidation of post-Koken claims.

All of the cases compiled to date, can be viewed on the post-Koken scorecard by scrolling down the right hand column of this blog and clicking on the date under “Post-Koken scorecard.”

Note that the Post-Koken scorecard, while thorough, is not represented to be an exhaustive listing of all of the cases that may be out there. There could be other cases that I am not aware of and it is recommended that you conduct your own additional research in your own county.

I send thanks to prevailing Attorney Ann O’Donnell Farias of the O’Donnell Law Offices in Kingston, Pennsylvania for forwarding this case to my attention.

Anyone desiring a copy of this Order (without Opinion) in the case of Kush v. Rogowski and Progressive may contact me at dancummins@comcast.net.

New Logos for Tort Talk

Here are the new logos I had created for Tort Talk. The "T" with the Scales of Justice represents the "Tort" coverage by the blog and the surrounding cartoon bubble represents the "Talk." What do you think?

Now that the logo is in place, can the Tort Talk theme park be far behind. Some of the rides could include roller coasters like the "Res Ipsa Loqui-Coaster" and "Negligence is in the Air." Of course, there could also be bumping cars where the worst injuries possible are soft tissue sprain/strain injuries to the neck and back of 6 to 12 weeks duration.

Please be reminded that the Tort Talk Expo CLE Seminar set for April 20th at the Mohegan Sun Casino is now less than 30 days away. Over 70 people have signed up to date and, while seats remain, they are going fast.

The attendees so far are comprised of plaintiff's attorneys, defense attorneys, and claims professionals from a number of different carriers. So, in addition to being an opportunity to collect some CLE credits (2 substantive and 1 ethics), this event promises to be an excellent networking opportunity at the seminar and the following cocktail reception.

Here's the link to the Ad/Registration form:


Tuesday, March 22, 2011

Tips for Status Reports by Attorneys to Claims Professionals

I received permission from Marc Lanzkowsky of the blog The Claims SPOT (www.the claimsspot.com) to republish the below posts from that blog here on Tort Talk as a guest post providing worthwhile tips for reporting updates on cases to claims professionals.

5 Elements That Reports From Outside Counsel Should Have

By James Pattillo – March 15, 2011

Outside looking in:
Give what they need and you will make them happy!

Our last SPOT on Legal article looked at the five things counsel should leave out of a report. I’m sure most of you thought of more than five. This article looks at five things that must be included. It’s amazing how many times these basic items are overlooked. Providing the essential information in the correct format will help make claims professional’s jobs easier and will help to move the case in the appropriate direction.

1. An Overview – Although you don’t want to repeat yourself, a little background is helpful. Give an enough of an overview to give the new information some context. This is especially important if the reports are every 60 days or more.

2. Enough Detail – I know one of the warnings in the previous post was to not include too much detail. Well that is a double-edged sword. Bottom line: there shouldn’t be any unanswered questions after reading the report. It always needs to address the effect on damages and liability whether or not there has been a change on those estimates. Again, the lesson here

3. Direct Advice/Recommendations – The report needs to have a point. What needs to be done in light of this new information? If nothing, then state it. If additional questions have come up that need to be addressed with more discovery or depositions, then state it. If now is the time the try to resolve the case in light of the new information, then recommend it.

4. Plan Your Work and Work Your Plan – Every report should state what the expected activity is before the next report is sent. Have a plan moving forward and work that plan. Any deviations from the expected activity in previous report should be explained.

5. The Bottom Line is the Bottom Line – Always have a solid liability and damage estimate. Liability estimates are most easily expressed in a percentage chance of a certain verdict. A damage estimate is always harder to come up with but a range is usually appropriate (e.g. “any verdict in favor of the plaintiff will most likely be between $350,000 and $400,000). It’s ok to change your estimate, but only if it is based on case developments that couldn’t be anticipated. A looming trial date is never a good reason to change a liability or damage estimate.

5 Things Claims Handlers DON’T NEED In A Report From Counsel

By James Pattillo – March 10, 2011

Outside Looking In:
Claims professionals are pretty busy. Sometimes less is more!

Time is of the essence. Isn’t it always? Claims handlers have the near impossible task of assimilating a large volume of information to make an accurate assessment of a claim. And they have to do it on a daily basis for a pending file list much larger than most of the defense counsel they work with.

Of course every bit of information in litigation is important. You’ll never hear a lawyer say “let’s just leave that out.” But at some point, the case has to boiled down into a report or summary.
This article looks at the top five things defense counsel include in reports that are not essential.

To be fair, my next post will examine the top five things that are essential to those reports. (Of course, I’m sticking my neck out here on some level. As soon as something is labeled as “non-essential”, it will become the key piece of information upon which a claim turns. Good judgment is always the rule at the end of the day).

1. Repeating Your Last Report – No one wants to read the same thing they read 30, 60 or 90 days ago. Each report should have 75% new information. The remaining 25% should be background from the case as a whole that provides context to the new information.

2. Duplicative information in the Same Report – No need to repeat the same information multiple times in a report. If you don’t need to repeat it from a previous report, don’t repeat it several times in the same report. A brief overview or summary in the beginning is o.k. but generally try not repeat yourself. Also, you should not repeat yourself.

3. Information About You – Claims handlers don’t need to know your trial history or bullet points from a curriculum vitae. However, if you have experience with a particular judge or plaintiff’s counsel, that is valuable information.

4. Billing Tasks – An explanation of your billing or why a particular task took a certain amount of time is outside the scope of a litigation report. Follow the billing guidelines and get approval where required. But leave it out of the report.

5. Too Much Detail – This is difficult because every claim handler wants something a little different. Most often, defense counsel are criticized for giving too much (e.g. the 40 page summary of the 80 page deposition transcript doesn’t do much good). Everyone has a different workload depending on the type and complexity of claims. The key here is to communicate about the level of detail that is wanted.

Monday, March 21, 2011

Consolidation Denied in Federal Middle District Post-Koken Case

Recently, on March 16, 2011, Judge Sylvia H. Rambo of the Federal District Court for the Middle District of Pennsylvania has issued an Opinion in the case of Christian v. Liberty Mutual, No. 1:10-CV-125 (M.D.Pa. March 16, 2011, Rambo, J.) , denying a Plaintiff's request to consolidate the Plaintiff's negligence lawsuit against the tortfeasors with the Plaintiff's separately filed uninsured (UM) claim against the Plaintiff's own carrier under an allegation that a phantom vehicle was also involved in the accident.

In her Opinion, Judge Rambo noted the split of authority on the issue of consolidation vs. severance in the state court system and emphasized that, in the case before her, "the concerns of potential prejudice against Defendant arising from the introduction of insurance information are significant, and the benefit of cost avoidance would be felt only by Plaintiffs in the instant case, Plaintiffs...."

Accordingly, Judge Rambo decided to deny the Plaintiff's motion to consolidate.

I thank Attorney Carl J. Guagliardo of the Kingston law firm of Selingo & Guagliardo for bringing this case to my attention.

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

Thursday, March 17, 2011

Pennsylvania Supreme Court Rules on Reduction of UM/UIM Coverage Forms

On March 14, 2011, the Pennsylvania Supreme Court issued a 5-2 decision in the case of Orsag v. Farmers New Century Insurance, 2011 WL 856367 (Pa. 2010 Eakin, J.) holding that an insured's signature on an application for automobile insurance was sufficient to allow the insurance carrier to enforce the insured's request for uninsured/underinsured ("UM/UIM") coverage limits lower than the bodily injury liability limits of the same policy.

The majority found that the application language was sufficient under the written requirements found under 75 Pa.C.S. 1734 for the selection of reduced UM/UIM coverage even if the application was not accompanied with a written Section 1791 "Important Notice" of coverage options.

For more details, the actual opinions can be viewed online at these links:

Majority Opinion:

Concurring Opinion:

Dissenting Opinion:

I send thanks to Attorney Pete Speaker of the Harrisburg, PA office of Thomas, Thomas & Hafer as well as to Attorney Craig Murphey from the Erie, PA office of MacDonald Illig for bringing this case to my attention.

Forum Selection Clause Upheld in Allegheny County Post-Koken Case

I recently came across an Allegheny County Court of Common Pleas decision in the case of Lowry v. Aliquo and Erie Insurance Exchange, 159 PLJ 35 (Alleg. Co. 2010, Strassburger, J.), in which the Court enforced the carrier’s forum selection clause for a UIM claim and transferred the action to Butler County.

In this case matter, Erie filed Preliminary Objections based upon venue to the Plaintiff’s Complaint. The Erie policy provided that the insured was required to file suit against Erie in the county in which the insured resided. In this case, the insured resided in Butler County.

The Allegheny County Court of Common Pleas determined that Erie’s forum selection clause was valid. Accordingly, the case was transferred to Butler County.

The Allegheny Court also noted that the trial courts in Butler County have ruled that a UIM claim should be severed from the claim against the tortfeasor. As such, the Court in Allegheny County also severed the UIM claim from the claim against the tortfeasor and transferred only the UIM claim to Butler County.

I send thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers McDonnell for bringing this case to my attention.

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

Judge Wettick Addresses Parameters of Neurospsych IMEs

I was recently provided with a December 1, 2010 Order and Opinion of Court issued by Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas in the case of Rotunda v. Petruska, No. GD08-018798 (Alleg. Co., 2010, Wettick, J.) in which the Court held that a neuropsychological IME could not be performed in the absence of Plaintiff’s counsel if an objection to that was lodged by the Plaintiff.

Defense counsel had objected that the presence of another persons for the psychological testing would alter the results and may influence the test scores.

Judge Wettick held that the wording of Rule 4010 “is clear” and allows a party the right to have counsel present during the examination. Judge Wettick also allowed the Plaintiff to record the proceeding as allowed by the Rules.

I thank Attorney Andrew L. Braunfeld of the law firm of Masterson, Braunfeld, LLP in Conshohocken, Pennsylvania for forwarding this Opinion to my attention.

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

Wednesday, March 16, 2011

Judge Terrence Nealon of Lackawanna County Addresses Issue of Discovery of Prior Similar Incidents

On March 7, 2011, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued an Opinion and Order in the premises liability case of Walsh v. Generations Management Services, LLC, et.al., No. 2009-Civil-5715 (Lacka. Co. March 7, 2011, Nealon, J.) in which the Court ruled on various issues pertaining to the discovery of evidence of prior falls at an assisted living residence.

An action was brought on behalf of a resident who fell at an assisted living residence on several occasions. The claim was that the facility had allegedly not provided proper supervision of its residents and/or training for its staff.

The Plaintiff had inquired whether there have been other similar incidents at the same location as well as at other locations owned by business in the surrounding counties. The Defendant objected to these discovery requests on the grounds that the “information requested is not reasonable calculated to lead to the discovery of relevant evidence.”

When this matter was initially before the Lackawanna County Special Trial Master, the Defendants were ordered to produce responses to these discovery requests for a time frame of seven (7) years prior to the incident and up to the present time.

On appeal up to Judge Nealon, the court reviewed the law pertaining to the discovery of prior incidents and held that the Defendant should be required to produce information relating to prior falls. The Court ruled in this fashion after the Plaintiff’s attorney agreed to narrow the discovery request to prior falls at the facility which required the residents to receive outside medical attention.

Judge Nealon did, however, overrule that part of the discovery order issued by the Special Trial Master requiring the production of information concerning falls which occurred after the date of the Plaintiff’s last fall and up to the present as evidence of subsequent falls could not be used to demonstrate any prior notice or knowledge of any allegedly dangerous condition.

The Court also sustained the defense objection to the Interrogatories seeking information regarding prior falls at other facilities owned by the same Defendants.

In his Opinion, Judge Nealon also addressed the discovery dispute over the requested production of the facility’s quality management plan, emergency medical plan and staff training relative to proper care for residents with dementia or cognitive problems. After noting that the Pennsylvania Code requires these types of facilities to maintain such documentation, the Court held that such information was discoverable regardless of whether the facility at issue was licensed as a personal care home or an assisting living residence.

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

Judge Polacheck Gartley of Luzerne County Allows Deposition While Preliminary Objections Pending

On March 2, 2011, Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas issued an Order in the case of Dunsmuir v. Tredinnick, No. 12077-Civil-2010 (Luz. Co., March 2, 2011, Polachek Gartley, J.) in which the Court addressed the issue of whether or a deposition of a Defendant should be allowed to proceed while Preliminary Objections filed by the Defendant were pending before the Court.

In this decision, the Plaintiff filed a Motion to Compel the Defendant’s deposition and the same was granted by the Court. Notably, the Preliminary Objections at issue were not case dispositive.

The prevailing Plaintiff’s attorney in this matter was Michael O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania.

As noted, this Decision was by Order only, without any Opinion. However, should anyone desire a copy of this Order, you may contact me at dancummins@comcast.net.

Judge Terrence Nealon of Lackawanna County Addresses Issue of Pre-Complaint Discovery

In his March 2, 2011 Order (which reads like an Opinion) in the case of Rader v. Hospital Service Association of Northeastern Pennsylvania, et.al., No. 2010-Civil-3423 (Lacka. Co. March 2, 2011, Nealon, J.), Judge Nealon reviewed the law surrounding the issue of pre-Complaint discovery.

This matter involves three separate lawsuits that allegedly arise from the Defendants’ failure to pay the full amount of the medical bills related to the various Plaintiff’s medical treatment.

The Plaintiff began the lawsuit by the filing of Summons, which were served upon the Defendant together with Request for Production of Documents. The Defendants objected to the discovery requests and came before the Special Trial Master and then the case was appealed up to Judge Nealon’s review.

The Plaintiffs were seeking provider agreements relative to the payment of medical expenses for the treatment provided. The Defendants objected and asserted that the documents requested were not material and necessary for the Plaintiff to file a Complaint. They also asserted that it would be unduly burdensome to produce such documentation as the agreements were with thousands of different professional providers. The Defendants also asserted that the requested provider agreements were not subject to discovery as they contained proprietary information involving each contacting professional provider.

Judge Nealon reviewed the seminal decision on the issue of pre-Complaint discovery issued in the case of McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006), in which the Pennsylvania Supreme Court addressed the governing standard for pre-Complaint discovery.

Judge Nealon also analyzed Pa. R.C.P. 4003.8 which provides that a Plaintiff may obtain pre-Complaint discovery “where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppressions, burden, or expense to any person or party.”

Applying the law to the case before him, Judge Nealon decided that the Plaintiff did not need all of the provider agreements in order to compute the amount of their unpaid medical bills as maybe necessary to draft the Complaint.

Accordingly, the Court held that the Plaintiffs have not demonstrated that the information sought in their pre-Complaint discovery requests was material and necessary to the filing of the Complaint. As such, the appeal by the Plaintiff from the Special Trial Master’s decision was denied.

This Opinion by Judge Nealon provides an nice summary of the current law on the issue of pre-Complaint discovery.

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

Judge Polachek Gartley of Luzerne County Issues Post-Koken Decision

Another post-Koken decision on a pleadings issue has come out of Luzerne County. On February 28, 2011, in the case of Price v. Price, Auto Glass Unlimited, Inc., and State Farm, No. 13625-Civil-2010, Judge Tina Polachek Gartley, issued an Order on various Preliminary Objections filed by both State Farm and the Plaintiff.

In Price, a post-Koken Complaint was filed by the Plaintiff where the Plaintiff joined the tortfeasor and the UIM carrier, State Farm in one litigation.

State Farm filed Preliminary Objections solely on the basis that the Plaintiff’s breach of contract cause of action against them was really a claim of bad faith.

In response, Plaintiff filed Preliminary Objections to State Farm’s Preliminary Objections, arguing that State Farm Preliminary Objections were vague in that they failed to state specifically the grounds for the Preliminary Objections in violation of Pa. R.C.P. 1028(b).

Judge Gartley sided with the Plaintiff and denied State Farm’s Preliminary Objections and granted the Plaintiff’s Preliminary Objections to the Preliminary Objections.

I am uncertain as to how State Farm has followed up since.

I send thanks to Attorney Ann O. Farias of the O'Donnell Law Offices in Kingston, PA for bringing this case to my attention.

I note that this decision was by Order only without much any explanatory rationale. However, should you wish to obtain a copy of this Order, please do not hesitate to contact me at dancummins@comcast.net.

Monday, March 14, 2011

Superior Court Sets Up Oral Argument for Post-Koken Venue Case

Oral argument on the Superior Court case of Sehl v. Neff has been set to take place on April 27, 2011 at 9:30 a.m. in Philadelphia.

This is the post-Koken venue case in which the UIM policy did not have a venue selection clause and the Plaintiff filed suit in Philadelphia County even though the tortfeasor Defendant did not reside in Philadelphia County and even though the accident did not occur in Philadelphia County.

I wrote the amicus curiae brief on behalf of the Pennsylvania Defense Institute in favor of the position that venue is not proper in Philadelphia under the circumstances presented. If you wish to review that Brief, it may be accessed by clicking on the link in the JDSupra.com box down on the right-hand column of this blog.

Continuing updates will be provided on this case as it proceeds.



An interview conducted by

Daniel E. Cummins, Esquire

With the ever-present backlog of trial calendars in the trial courts across Pennsylvania, more and more litigants are turning to alternative dispute resolution in the form of non-binding mediation or binding arbitration to bring their cases to a resolution. Of course, the uncertainty attendant with jury trials has also always been a great motivator for parties to move their cases into a mediation or a binding arbitration with confidential high/low parameters in place.

There is no better way to learn about what works and what doesn’t work during ADR proceedings than by asking questions of mediators/arbitrators that have presided over numerous ADR proceedings.

The following questions, seeking tips on how parties may improve their chances for success in ADR proceedings, were submitted for a response to noted attorney mediators/arbitrators, Richard Fine, James A. Gibbons, Tom Helbig, and Lucille Marsh.


Richard Fine:

The written memorandum should be a simple, convincing presentation of the party's position; it should anticipate the opposing party's arguments on liability (in arbitrations) and damages, and should set forth clear responses to those arguments. Concentrate on the points that will put pressure on the opposing party.

If relying on case law, it should be summarized as well, but copies of relevant decisions should be provided with the memorandum. Don't expect your arbitrator or mediator to go to the books to find the cases you cite.

A brief description of any settlement negotiations that occurred between the parties prior to mediation should be included.

If setting forth a settlement figure, or range of figures, be sure to give the basis for arriving at that figure. Explain how you calculated your values. Include proof of any liens that must be satisfied, etc.

Consideration should be given to whether the memorandum is to be shared with the opposing party, or whether some or all of it should be for the mediator's eyes only.

Jim Gibbons:

Try to not parrot the medical records, especially if you are submitting the records too. Pay attention to your strengths, but don't ignore your weaknesses. Outline your settlement position and provide a rationale for your figures.

Tom Helbig:

For Arbitration – Make certain to address all the relevant facts and legal principles that support your position. My preference is for counsel to err on the side of providing too much information in the Memorandum. Remember the Arbitrator will generally review the written submissions both before and after the Hearing, and a well written Memorandum is another opportunity to persuade the Arbitrator.

For Mediation – An exhaustive Memorandum is not necessary since there will be more discussion of the case facts and issues during the Conference. Since settlement is the ultimate goal, however, it is important to provide to the Mediator your settlement position and outline the specific reasons supporting your present position.

Lucille Marsh:

A concise Mediation Memorandum setting forth the essential facts of the case, damages and any issues, pro or con, to liability or damages is very helpful. Eliminate puffing and the superfluous. If case is complex, a chronology/summary of events, i.e. medical treatment, is useful to the Mediator as a negotiating tool. Give the Mediator information which can be used to leverage with the other side. In Arbitration, where counsel must convince the Arbitrator of the merits, including all relevant facts, case law or argument supporting a claim or defense is highly effective in my opinion. Avoid arguing a position not supportable by the facts and law. Remember - a Mediator only facilitates a settlement whereas an Arbitrator must be influenced to decide the case in a party's favor.


Richard Fine:

The less paper you ask the mediator to look through, the better.

If you have already had an expert review medical records, or someone in your office has prepared a digest, summary or chronological chart of treatment, use that as your exhibit. If you feel that certain medical records are important for the arbitrator or mediator to see, tab or highlight the relevant portion.

If deposition testimony is being submitted, I prefer to have the entire transcript, but again relevant portions should be tabbed and highlighted for quick access.

Photographs should be clear and labeled on the back, preferably 5 X 7 or larger. Include the date each was taken. Don't present 5 or 6 when 1 or 2 will do the job.

At the proceeding itself, consider a well-thought-out Power Point presentation for your exhibits.

Jim Gibbons:

Highlighting helps attract attention; I have no problem with it. Don't submit unnecessary medical records. Submit the records that speak to the injuries at issue. If you're going to submit depo testimony, submit the entire transcript. I'd suggest in that instance, communication with
opposing counsel beforehand can avoid duplicate submissions.

Tom Helbig:

Make sure to reach an agreement with opposing counsel on the proposed exhibits before submitting them to the Arbitrator or Mediator. A recurring problem has been the submission of updated medical records and reports without providing them to opposing counsel, or documents obtaining objectionable hearsay statements, such as police reports, without a stipulation as to admission from opposing counsel. Submission of all medical records is unnecessary (e. g. every PT or primary care physician’s note); however, a complete medical chronology is helpful, especially for a comparison of an individual’s pre and post-accident medical condition.

Lucille Marsh:

In Mediation, since I do not need to be convinced of the merits of any party's position, only relevant and pertinent medical records, photos and portions of depositions need be supplied. Do not overwhelm the Mediator with paperwork. A short and concise summary of medical treatment is in my opinion far more effective than a stack of medical records. On the defense side I generally like to have a copy of any IME reports which I can compare to the Plaintiff's concise summary. On the other hand, in arbitration counsel needs to convince the fact finder that his/her position is the more correct one and all supportive, relevant medical reports, documents, photographs or statements should be utilized. In complex or catastrophic cases, a day in the life video or other visual aid illustrating how the accident occurred or product was defective is very effective.


Richard Fine:

I welcome closing arguments and would always give parties the option, but never make them mandatory. Attorneys should remember their audience; the arbitrator does not need or want courtroom dramatics-- don't "hype" your case.

Be careful not to argue points that are clearly not supported by the evidence; sum up your case as succinctly as possible,

Jim Gibbons:

I welcome closing arguments in arbitrations, but counsel need to remember that the panel is not composed of lay people. Less theatrics have a bigger impact. I do not see any need for openings or closings in mediations.

Tom Helbig:

Absolute necessity and rarely, if ever, should be waived by counsel. Need not be lengthy or theatrical; rather I prefer counsel to elicit a concise summary of the credible evidence supporting his or her theory of the case and why the Arbitrator should decide in their favor on a particular issue (e. g. liability, damages, coverage).

Lucille Marsh:

Counsel should always be given the opportunity to make a closing argument. However, depending upon the complexity of the matter, a closing argument may or may not be of any value. If there is a legal issue, a closing argument should reference case law and facts which support the party’s position. Address any evidence that came up during the hearing that was not addressed or anticipated in the submitted Memorandum. Avoid arguing anything unsupported by the evidence as that will only adversely impact your credibility. Avoid arguing the obvious. Highlight the evidence that supports your position and/or nullifies your opponent’s position.


Richard Fine:

Plaintiff's counsel should make certain that the client understands the purpose of the proceeding. Unrealistic expectations can derail a mediation. The client should be fully briefed ahead of time as to the nature and significance of any subrogation liens, Medicare or Welfare liens, and costs that need to be reimbursed from the proceeds of an award or settlement.

Claims representatives must understand that without full authority to settle, a mediation cannot succeed. Ideally, the individual with authority should be present in person. This helps to streamline the negotiating process, avoiding the need for repeated calls "to the company". Furthermore, the opportunity to meet the Plaintiff will allow the claims rep to assess how a jury might react to the individual.

If there is more than one defendant, discussions should be held with the claims representative in advance of the ADR proceeding as to how a settlement package might be put together---by what percentage or other method the ultimate pay-out should be split between them.

Jim Gibbons:

In mediations, counsel need to emphasize to their clients/adjusters that the tone is one of compromise. Parties must understand that there is a distinct possibility that what they want to pay/receive may not be what they will end up paying/receiving. Parties need to understand that the numbers at the beginning of the process will not be the numbers at the end of the process. Counsel also need to counsel patience. It is a process, and insisting on getting to the end at the beginning is counter-productive. It's not going to be over in an hour or two.

Tom Helbig:

For Mediation, it is important for the parties and claims representatives to clearly understand the Mediation process and its ultimate purpose, i. e., there must be a sincere desire to resolve the claim and not necessarily prove the other party is wrong. Must understand the Mediator is a facilitator and not a fact-finder; thus, if the parties and/or claims representatives are unwilling to fully discuss the case issues and potentially re-examine their positions, then Mediation should probably not be pursued.

Lucille Marsh:

Impress upon your client/representative the importance of the ADR. Point out the pros and cons of your case so that the client/representative enters the ADR fully aware of the uncertainties. Have your client assess both best case scenario and worst case scenario in discussing settlement range and settlement needs. Discuss in advance a realistic range of settlement you’re willing to consider. Be flexible. Make sure that your client/representative has the desire and willingness to participate in ADR - otherwise you are wasting your time and money.


Richard Fine:

Simplify and organize!

Know your facts, know the applicable law, and whenever possible, know your mediator or arbitrator. Take his or her style and personality into account when presenting your case.

Remember the Boy Scout motto, and be prepared.

Jim Gibbons:

Obviously, having a claim rep in the room is ideal. Second best is having them available by phone. Come with authority. If you've had preliminary discussions prior to the mediation, don't raise the demand/lower the offer at the mediation.

Defense counsel: try and bring a proposed release with you to speed up the process of payment.

Plaintiffs' counsel: have a good handle on your costs to date; your client will likely ask how much goes into his/her pocket at the mediation. That can be a big help. If there is a lien, initiate contact with the lienholder prior to the mediation and try to get a conversation going about compromising the lien.

Tom Helbig:

PLAINTIFF - Don’t necessarily rely upon your client as the only witness to be called at the hearing. It may be helpful to enhance a pain and suffering or wage loss claim with the testimony of family members, friends, and/or co-workers. A relatively modest expenditure of time and money to present these corroborating witnesses may be beneficial.

DEFENDANT -Important hearing/conference items for the arbitrator/mediator’s consideration may include a medical chronology and all relevant pre and post-accident records; vehicle damage photographs; and subsequent accident/incident reports.

Lucille Marsh:

In Mediation, be candid with the Mediator when in private caucus. Confidentiality and trust are critical for any successful Mediation. Posturing in front of the Mediator (and your client) serves no purpose in advancing your case. A good Mediator will make it very clear that any strategy or confidential information you provide will never be revealed to your opponent and realistically discussing weaknesses as well as strengths of your case only enhances your credibility. Be fully prepared to quantify your damages with back up, i.e. medical bills; wage loss; economic analysis of lost future earnings or earnings capacity, etc.


Richard Fine is currently a mediator and arbitrator associated with ADR Options, Inc.; Resolute Systems, Inc.; Settlement Systems, Inc.; and The Peacemakers. Mr. Fine, a cum laude graduate of the University of Pennsylvania who attended Washington University School of Medicine and received his juris doctor from Dickinson School of Law, began his career clerking for Judge Joseph Sloane of Philadelphia County. He then moved into private practice in Pennsylvania state courts and the U.S. District Court for the Middle District of Pennsylvania, as part of the firm now known as Fine, Wyatt & Carey, where he is presently the senior and managing partner. He has also been admitted to practice before the U.S. Supreme Court. Mr. Fine was appointed by Chief Judge Sylvia H. Rambo of the U.S. District Court for the Middle District of PA to serve as a mediator under the Civil Justice Reform Act of 1990. He was also appointed by President Judge Chester T. Harhut to serve as a mediator for the Court of Common Pleas of Lackawanna County. A former board member and past president of the Lackawanna County Bar Association, Mr. Fine is also a member of the Wayne County Bar Association, the Pennsylvania Bar Association, the American Bar Association, the Association of Trial Lawyers of America, the Pennsylvania Defense Institute, the Pennsylvania Association for Justice, and the International Association of Defense Counsel. Mr. Fine has served in his community as a board member of the Jewish Community Center, the Jewish Federation, the Community Medical Center, Temple Hesed, and Allied Services; a trustee of Webster Towers; and a member of the Mellon Bank advisory board. He currently serves as a hearing committee member with the Disciplinary Board of the Supreme Court of Pennsylvania and has lectured for the Lackawanna Bar Association, the Pennsylvania Bar Institute, and the Pennsylvania Association for Justice. Attorney Fine may be contacted at finerg@comcast.net.

Jim Gibbons provides mediation services in commercial, real estate, civil rights, personal injury and medical negligence cases throughout northeastern and central
Pennsylvania. He is certified by the U.S. District Court as a mediator and is
regularly appointed there and in the local county courts as a mediator and
arbitrator. He has spent his entire career in litigation in the state and
federal courts. Attorney Gibbons may be contacted at gibbonslawfirm@epix.net.

Thomas Helbig received his BA from the University of Scranton in 1977 and his JD from Seton Hall University School of Law in 1981. Following graduation, he served as a law clerk to US District Judge Richard P. Conaboy in the US Middle District of Pennsylvania for two years. Prior to beginning his solo practice in 2008, he was a partner in the Scranton law firm of Scanlon, Howley & Doherty for seventeen (17) years and, previous to that, in the Wilkes-Barre law firm of Hourigan, Kluger, & Quinn P.C. for nine (9) years. In addition to his private litigation practice, Mr. Helbig focuses his present practice on mediation and arbitration work. He was recently appointed to the position of Settlement Master in the Court of Common Pleas of Lackawanna County under newly revised Local Rule 212. He previously served as Interim Discovery Master in Lackawanna County, and also as a court-appointed Special Trial Master presiding over jury and non-jury trials. Over the last twenty-five (25) years, he has conducted numerous mediations and arbitrations in third party and first party civil cases.

Lucille Marsh is a partner in the firm of Kreder Brooks Hailstone LLP. She focuses her practice on insurance defense, civil litigation, mediation and family law. She is a graduate of Chatham College and Dickinson School of Law. She has been a Certified Mediator in the United States District Court for the Middle District of Pennsylvania since 1996 and provides private mediation/arbitration services. She is an Adjunct Instructor at Keystone College. Attorney Marsh is a member of the Pennsylvania Bar Association, Lackawanna Bar Association and the Pennsylvania Defense Institute. She has served on various PBA Task Forces and Committees. She served as a member of the Third Circuit Lawyers’ Advisory Committee and Middle District CJRA Advisory Committee. Attorney Marsh may be contacted at Lmarsh@kbh-law.com.

Friday, March 11, 2011


The TORT TALK EXPO 2011, set to take place on Wednesday, April 20, 2011 from 1 -5 pm at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania is shaping up to be a nice event.

There are already 50+ attendees registered to come comprised of Plaintiff's attorneys, Defense attorneys and claims professionals from a variety of carriers including State Farm, Progressive, GEICO, Allstate, Erie, Penn Millers, and Farmers Insurance to name a few.

In addition to the numerous Judges who will be presenting at the event (including Judges Raup, Wallitsch, Mazzoni, and Nealon), Judges from the Middle District Federal Court and the surrounding county state courts have noted an intention to attend the following cocktail reception. Also, Judge Correale Stevens, President Judge of the Pennsylvania Superior Court has noted an intention to attend the reception as well.

There will also be a number of table vendors in attendance to provide you with information on the services they provide to the legal industry, including at least the following vendors (in alphabetical order):

Courtside Documents: www.courtsidedoc.com

Digital Justice: www.digitaljustice.net

Exhibit A: www.exhibitadigital.com

Optimo-IT: www.optimo-it.com

Minnesota Lawyer's Mutual: http://www.mlmins.com/

Northeastern Rehabilitation Associates:

As such, in addition to being a hopefully informative and entertaining CLE seminar, this event will also prove to be an excellent networking opportunity for all who plan to attend.

If you are interested, here is the link to the advertisement and registration form for the TORT TALK EXPO 2011: http://www.torttalk.com/2011/02/federal-middle-district-judge-william-j.html


New and Improved Post-Koken Scorecard

The Post-Koken Scorecard, which compiles the Post-Koken cases I have come across or have been advised of on a variety of issues is "new and improved" to the extent that I have put the county-by-county listing of cases in alphabetical order by County for ease of review.

I initially always listed Lackawanna County and Luzerne County first because that is my primary geographic area of practice (Northeastern Pennsylvania). As the compilation of cases has grown and grown, I thought it would read easier if the Counties were listed in alphabetical order.

You can always view the Post-Koken Scorecard by clicking on the date under "Post-Koken Scorecard" down on the right-hand column of the blog. Here's a quick link to the Scorecard: http://www.torttalk.com/2009/12/new-and-improved-updated-list-of-post.html

Please note that, while this compilation is pretty thorough, it is not represented to be exhaustive. There surely could be other cases out there that I have not come across yet.

Friday, March 4, 2011

Judge Miller of Monroe County Rules on Post-Koken Pleading Issue Pertinent to Defendants

In the post-Koken decision of Bridgeman v. Cruz, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.), the Court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification after finding that such claim was not yet ripe for judicial review.

In this matter, the Plaintiff sued the tortfeasor and the UIM carrier under one caption. The UIM carrier, Nationwide, filed a cross-claim for contribution and indemnification of any amounts Nationwide had to pay to Plaintiff under Plaintiff’s uninsured and underinsured motorist coverage. Nationwide claimed that any amount it would be required to pay was caused by the tortfeasor Defendant’s actions.

In response, the tortfeasor Defendants filed Preliminary Objections asserting that Nationwide had no right to contribution or indemnification because they were brought into the case on an UM/UIM theory of recovery. In order for such claims for contribution or indemnification to be justiciable, the litigant must have standing, the claim must not be moot, and the claim must be ripe for judicial review.

Judge Wallach Miller concluded that under the UM/UIM policy, the carrier did not have to pay the injured party until a determination was made that the Plaintiff’s damages exceeded the liability policy limits. The Court also noted that, under the UM/UIM policy, Nationwide retained the right to recover any amounts it had to pay to its injured party insured only after Nationwide had actually compensated the insured for damages in excess for the tortfeasors’ applicable liability limits.

The Court found that the UIM carrier may not recover on any claim for contribution or indemnification until the Plaintiff was awarded damages in excess of the liability policy and, therefore, Nationwide’s cross-claim, was found to be procedurally and substantively improper because it was not ripe for judicial review under the ripeness doctrine.

The Court concluded its Opinion by indicating that Nationwide will not suffer any undue hardship if the Court struck Nationwide’s cross-claim at this time. Judge Wallach Miller stated that, if the Plaintiff recovered less than the liability limits, then the tortfeasors would not have to defend themselves in any subrogation suit because Nationwide would have no losses to recover in such a scenario.

Anyone desiring a copy of this Opinion may contact the Pennsylvania Law Weekly Instant Case Service by calling 1-800-276-7427 and paying a small fee.

I am attempting to obtain a copy so you can contact me at dancummins@comcast.net as well if you would like a copy.

Source: Case Digest in February 15, 2011 Pennsylvania Law Weekly