Sunday, October 30, 2011

Limited Tort Case Out of Westmoreland County

I recently came across the case of Phillipi v. Carey, 93 Westmoreland 119 (C.P. May 6, 2011), in which the Westmoreland County Court of Common Pleas granted summary judgment for the Defendant in a limited tort case.

According to the Opinion, the Court found that the Plaintiff’s injuries were not serious in a case where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.

The Court noted that, although the Plaintiff offered evidence that his standing and walking abilities were affected, there was no evidence of any restrictions as a result of the injuries.

This is one of a only few recent limited tort decisions I have seen. Another recent limited tort decision was out of the Monroe County Court of Common Please by Judge Linda Wallach Miller in the case of Stout v. Deleo, No. 970-Civil-2007 (C.P. Monroe Co. 2011, Miller, J.), in which the Court also granted a defendant’s summary judgment motion on the limited tort issue.

Anyone desiring a copy of the above limited tort decisions may contact me at

Source: “Court Summaries” Pennsylvania Bar News By Timothy L. Clawges, Esquire (Chief Public Defender in Cumberland County).

Thursday, October 27, 2011

Judge Terrence Nealon Holds Claims Reps' Mental Impressions From Before Suit Filed Are Protected

In an apparent case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed an important discovery issue surrounding the scope of discoverability of a claims representative's mental impressions in yet another of his opinions handed down in the case of Church of the Forgotten Souls v. NGM Ins. Co., No. 2010 - CV - 7078, 2011 WL 5244490 (C.P. Lacka. Co. Oct. 5, 2011 Nealon, J.).

The issue in this case arose from a subpoena sent by the Plaintiff to secure a "complete copy" of the adjuster's file, including all documents related to the initial handling of the file in this property damage case.  The defendant carrier objected to the wide scope of the subpoena request, particularly with respect for the request for the production of the adjuster's mental impressions, conclusions and opinions on the file.

The Plaintiff argued that only those mental impressions, conclusions, and opinions of the adjuster created after the filing of the lawsuit were protected under the Rules of Discovery.  Judge Nealon disagreed.

Rule 4003.3 provides work product protection for an attorney's mental impressions prepared in anticipation of or connection with litigation, as well as for a non-attorney representative's opinions regarding the value or merit of a claim or defense that were prepared in anticipation of litigation (e.g., a claims representative, property loss adjustor, etc.).

Noting that there were no appellate cases on point on the question presented, and a dearth of any trial court opinions to refer to for that matter, Judge Nealon found that since there was no temporal limitation expressed in the Rules, all mental impressions, conclusions, or opinions generated in anticipation of litigation were therefore protected from discovery in that litigation.

In other words, the court found that there was no definitive line of demarcation---the filing of suit---for non-attorney mental impressions to be deemed "in anticipation of litigation."  As such, according to this ruling by Judge Nealon, Rule 4003.3 protects the adjuster's or claims representative's mental impressions expressed and documented in the file both before and after the commencement of the lawsuit.

Anyone desiring a copy of this opinion by Judge Nealon in the case of Church of the Forgotten Souls v. NGM Insurance Company may contact me at  Please be sure to specify that you would like the "discovery" opinion on this case as I posted a summary of a more general opinion by Judge Nealon in this same case last week pertaining to property damage subrogation issues.  Thanks.

Tuesday, October 25, 2011


Criminal court decision provides guidance on authenticating electronic information


Daniel E. Cummins

Criminal court matters are not often referenced in this civil litigation column but the Pennsylvania Superior Court has handed down a decision in a criminal case that could have impact in personal injury lawsuits.

The rapidly ever-changing internet world has brought on a new issue to be considered in the courtroom. Now that most communications are arguably completed electronically, the novel question of how to authenticate electronic messages, along with information on social media sites, has come to the forefront.

As noted below, the Pennsylvania Superior Court has faced down this issue by simply applying the rules of authentication that seem to have been in place forever in terms of paper-written evidence.

A case of first impression

In a recent criminal court case, described as a case of first impression, the Pennsylvania Superior Court ruled that text messages were not admissible in court unless they were properly authenticated, i.e. unless there is evidence presented that the messages did indeed come from the alleged sender.

The case of Commonwealth v. Koch, 2011 WL 4336634 2011 PA Super 201, No. 1669 MDA 2010 (Pa.Super. Sept. 16, 2011 Bowes, Freedburg, Colville, JJ)(Opinion by Bowes, J.) involved an appeal by the defendant from a Cumberland County conviction for drug offenses.

The defendant’s cell phone had been seized by the police during a search warrant and the text messages discovered on the phone were transcribed, offered at trial by the prosecutor, and allowed in by the trial court judge over the defendant’s objections as to hearsay and authentication.

The defendant asserted that there was no evidence to establish that she had sent any of the drug-related texts. She also asserted that it had not been established that the drug-related text received on the phone were directed to her as there was evidence that the defendant’s cell phone was also allegedly being used by someone else at the time.

On appeal, the Superior Court found that the text messages were not properly authenticated and, therefore, should not have been admitted. The criminal conviction was overturned.

As further support for its ruling, the court pointed to the prior prescient Pennsylvania Superior Court decision in In the Interest of F.P. A Minor, 878 A.2d 91 (Pa.Super. 2005), in which the court dealt with the authtentication of evidence of instant messages.

In that case, the Superior Court rejected the argument that emails or text messages are inherently unreliable because of their relative anonymity and the sometimes difficulty attendant with connecting a message with its author.

The court in F.P. noted that these issues are no different from letters or other documents that can be forged or denied by the alleged writer. The court also believed that electronic messages could be properly authenticated within the framework set forth under Pa.R.E. 901 on a case-by-case basis to determine if there has been an adequate foundation laid out as to the document’s relevance and authenticity.

In the more recent decision by the Superior Court in the case of Commonwealth v. Koch, it was also noted that “electronic writings typically show their source, so they can be authenticated by contents in the same way a communication by postal mail can be authenticated.”

The Commonwealth v. Koch court also emphasized that, while text messages and emails can almost always be electronically traced back to their source cell phone or computer, the sender of such messages is not always thereby automatically identified. Particular cell phones and computers can arguably be utilized by anyone at anytime.

As such, the Superior Court additionally held that there must also be “[c]ircumstantial evidence, which tends to corroborate the identity of the sender,” as well before an electronic message may be authenticated and admitted.

Impact in civil matters

This emerging evidentiary issue could obviously also come into play in civil litigation matters not only with respect to authenticating text messages but also tweets, emails, and commentary and photos on social media sites such as Facebook, MySpace, Linkedin and Google Plus.

So how do you authenticate such items? Just like you would with any other “writing” or documentary evidence. Don’t be distracted by the fact that this issue involves a new form of evidence—the same Pennsylvania Rules of Evidence apply.

Under Pennsylvania Rule of Evidence 901, pertaining to authentication, “[t]he required degree of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” See Pa.R.E. 901(a).

Pennsylvania Rule of Evidence 902(b) lists examples of methods to establish authentication. Evidence may be authenticated:

-by testimony from a witness with knowledge that the matter is what it is claimed to be

-with evidence establishing distinctive characteristics of the document to confirm its authenticity (perhaps the phrasing in the text will match how the sender speaks, etc.)

-by other relevant, circumstantial evidence to show that the writing is what the proponent purports it to be (i.e. references to related places, things, or names in the text message).

As the Pennsylvania and Federal Rules of Evidence largely mirror each other, it can be anticipated that the analysis for the authentication of electronic messages would be similar in the federal court system.


Therefore, these different forms of electronic evidence can be authenticated—you just need to know how. If you are ever faced with the issue of the authenticity of an email, text message, or information from a social media site, the Commonwealth v. Koch case is the one to consult along with Pa.R.E. 901.

Rarely Invoked "Auto Business" Exclusion Upheld as Basis for Denial of UIM Benefits

In its recent October 7, 2011 opinion in the case of Liberty Mut. Ins. Co. v. Sweeney, Civl Action No. 06-2227 (E.D.Pa. Oct. 7, 2011, Tucker, J.), the court relied upon the rarely invoked "auto business" exclusion to rule in favor of the carrier's request for a declaratory judgment regarding the carrier's denial of the injured party's claim for UIM benefits.

According to the opinion, on the date of the accident, the injured party owned an auto mechanic business that specialized in transmission repairs.  He had a relationship with AAA Automotive Center, an auto repair and car rental service center.  As part of the relationship, AAA would provide rental cars to customers of the injured party at a discount while the injured party worked on his customer's cars.  In exchange, AAA would send any of its rental cars needing transmission work to the injured party's establishment for repairs.

On the date of the accident, the injured party picked up a vehicle owned by AAA to deliver it to his customer the next morning.  On the evening that the injured party picked up the business vehicle, he stopped by a store on a personal errand to pick up some groceries for himself.  On his way home from the store, the injured party was involved in the subject auto accident.

The vehicle owned by AAA was not covered under the injured party's own automobile insurance policy.  However, the injured party's policy did provide UIM coverage for certain "non-owned" vehicles.  The injured party therefore made a claim for UIM benefits under his own policy.

The carrier denied coverage and filed a declaratory judgment action raising various exclusions.  The focus of this opinion in the Eastern District Federal Court was on the rarely invoked "auto business" exclusion.

The "auto business" exclusion in the subject policy provided that the carrier would "not pay for bodily injury caused by anyone using a non-owned motor vehicle in any kind of auto business.  Examples of auto business are: selling, repairing, servicing, storing or parking vehicles."

In this case, the carrier asserted that the exclusion applied to preclude coverage because the insured was operating a "non-owned" vehicle that he had "rented" for one of his customers.  In opposition, the injured party asserted that the exclusion was inapplicable because he was running a personal errand--making a trip to get groceries--when the accident happened.

Relying on precedent handed down over 30 years ago, the court in Liberty Mut. Ins. Co. v. Sweeney upheld the exclusion as valid and granted summary judgment in favor of the carrier on the carrier's request for a declaratory judgment that it had properly denied coverage to the injured party under the circumstances presented.

It is also noted that the Court rejected the carrier's reliance upon the "regular use" exclusion contained in the policy since the injured party's one-time use of the non-owned vehicle in question was not a regular, or habitual, use of the vehicle as that term is defined in this context. 

Judge Tucker noted in footnote 3 of the Opinion that there is "no authoritative pronouncement of as to the level of activity amounting to "regular use.'"  He also noted that, since the Pennsylvania Supreme Court has not specifically addressed this issue, he would have to predict how that court would rule in this regard.  The Opinion goes on to provide a nice recitation of the current status of the law of the "regular use" exclusion and what constitutes sufficient use of a vehicle to fall within this exclusion.

Applying the ordinary meaning of the term "regular," the court noted the the type of use of a vehicle required to fall under this exclusion is a principle use of the vehicle as opposed to a casual or incidental use, or a habitual use as opposed to an occasional use.

With there being only an incidental use of the vehicle at issue in this matter, the carrier's reliance upon the regular use exclusion was rejected.  As noted above, however, the carrier did prevail based upon the application of the rarely invoked "auto business" exlcusion.

Anyone desiring a copy of the court's opinion in the case of Liberty Mut. Ins. Co. v. Sweeney may contact me at

I give a tip of the hat and thanks to Pennsylvania Law Weekly reporter Ben Present for bringing this case to my attention.

Sunday, October 23, 2011

Pennsylvania Supreme Court on Twitter

The Supreme Court of Pennsylvania announced last week that it would launch a Twitter feed to instantly communicate opinions, rulings, and other relevant information. Recipients can sign up at

Interesting Discovery Decision out of Clinton County in Case Involving Death of a Minor

Judge J. Michael Williamson of the Clinton County Court of Common Pleas recently issued an interesting discovery decision in the medical malpractice case of Gentile v. Timko, et al., No. 215 - 2010 Civil (C.P. Clinton Co. Sept. 30, 2011 Williamson, J.).

After thorough analysis, including a review of the discovery of prior mental health records case of Gormley v. Edgar, Judge Williamson decided that the parents’ mental health treatment records and employment records were discoverable in a stillbirth case in which the parents claimed damages for future lost earnings.  The court noted that, in cases involving the death of very young individuals, facts pertaining to the parents' background may prove relevant in establishing a proper evaluation of any loss of future earnings claim for the deceased child.

Accordingly, Judge Williamson’s detailed reasoning in this 39 page decision may well be applicable to any case involving a minor (whether or not deceased) in which there is a claim for future loss of earnings or future loss of earning capacity to allow for wider discovery on the background of the parents.

Anyone desiring a copy of this decision may contact me at

Thanks to the prevailing Attorney Brian Bluth of the McCormick Law Firm in Williamsport, PA for bringing this case to my attention.

Detailed Opinion out of Lackawanna County on Defamation, Fraud, Res Judicata, and Collateral Estoppel Issues

For those of you who deal with the torts of defamation and fraud, and for those of you who are facing a res judicata or collateral estoppel issue, I have come across a recent Opinion by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas outlining the current status of the law on these causes of action in the case of Davis v. PPL Sustainable Energy Fund, 10 - CV - 706 (C.P. Lacka. Co. Oct. 13, 2011 Nealon, J.)

This case involved a former board member of a non-profit energy conservation fund who sued the fund's directors and agents alleging fraud and defamation in orchestrating his removal from the board.  Judge Nealon denied the Defendant's motion for judgment on the pleadings and found that the Plaintiff had indeed stated valid causes of action for defamation and fraud.

The Opinion also analyzes in detail the difference between the doctrines of res judicata and collateral estoppel in terms of the defense argument that the Plaintiff's claims were previously adjudicated before an administrative agency.  The trial court found that the Plaintiff was not precluded from pursuing the claims presented since the tort claims were not at issue in the prior administrative proceedings.

Anyone desiring a copy of Judge Nealon's 28 page Opinion in the case of Davis v. PPL Sustainable Energy Fund may contact me at

Friday, October 21, 2011

Two Major UM/UIM Decisions Handed Down by Pennsylvania Supreme Court

Earlier this week, the Pennsylvania Supreme Court handed down two important decisions on major UM/UIM issues both of which opinions where written by Justice Orie Melvin.

The issues involved in the separate cases included (1) whether those eligible for workers' compensation benefits may also collect underinsured motorist benefits, and (2) whether underinsured motorist coverage on a police officer's personal vehicle can be extended to a police vehicle when the cop's law enforcement agency does not provide such insurance.

Heller v. Pennsylvania League of Cities and Municipalities

In the case of Heller v. Pennsylvania League of Cities and Municipalities, a 2-1 Commonwealth Court panel previously ruled that a person receiving workers' compensation benefits may be subject to an insurance exclusion and was thereby precluded from also recovering underinsured motorist benefits.  This decision was reversed by the Supreme Court. 

The Heller case involved a declaratory judgment complaint that was brought against a municipal insurer seeking a judicial declaration that the exclusion at issue violated public policy. The underlying claim involved a police officer who had been injured in a motor vehicle accident during the course of his employment and received worker's compensation benefits.

This lower court decision was reversed by the Pennsylvania Supreme Court in its decision earlier this week under Heller v. Pennsylvania League of Cities and Municipalities.2011 WL 4953432 (Pa. Oct. 19, 2011 Orie Melvin, J.)(Saylor, J.,dissenting  ). 

The majority of the Supreme Court basically ruled in Heller that although the workers' compensation exclusion in the employer's liability policy did not violate any express provisions of the Pennsylvania Motor Vehicle Financial Responsibility law or the Workers' Compensation Act, the "workers' compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable." 

More specifically, the majority found that to enforce the exclusion would render the purchased coverage illusory.  In a strong dissent, Justice Saylor cautions against the judicial re-writing of insurance contracts and noted that the judicial striking of clear contractual provisions should be the exception rather than the rule lest the floodgates be opened based upon public policy arguments.  Justice Saylor suggests that these types of issues should be left for the Legislature or administrative agencies to struggle with.

The Supreme Court's majority opinion by Justice Orie Melvin in Heller can be read here
The dissenting opinion in Heller by Justice Saylor can be read here.

Williams v. GEICO

In the separate matter of Williams v. GEICO, the injured party police officer was injured in a car accident on the job and presented a UIM claim to his own personal insurance carrier, GEICO because the Pennsylvania State Police did not carry UM/UIM coverage on its vehicles. GEICO applied the "regular use" exclusion under its policy to deny coverage. In this case, the injured party police officer was challenging that exclusion and GEICO's denial.

In its decision in Williams v. GEICO, 2011 WL 4953433 (Pa. Oct. 19, 2011 Orie Melvin, J.)(Concurring Opinions by Todd, Baer, and Saylor, JJJ.), the Supreme Court affirmed the lower courts' decisions that  the “regular-use” exclusion contained in a personal automobile insurance policy is valid to preclude payment of underinsured motorist (“UIM”) benefits to a police officer injured in the course of employment while operating a police vehicle for which the officer did not have the ability to obtain UIM coverage.

In so ruling, the Pennsylvania Supreme Court relied upon the all-American principle that you can't get something for nothing.  In other words, since the police officer did not pay a premium to GEICO for UIM coverage on the police car he was driving at the time of the accident, the officer could not recover UIM benefits for injuries sustained as a result of an accident involving the police vehicle.

The decision by the Supreme Court obviously has a major impact on all first responders, from police officers, EMTs, and firefighters, who may all be driving out there without any UIM coverage under the current status of the law.

The majority opinion in Williams v. GEICO by Justice Orie Melvin can be viewed here.

The concurring opinion by Justice Todd can be viewed here.

The concurring opinion by Justice Baer can be viewed here.

The concurring opinion by Justice Saylor can be viewed here.

I send thanks to Attorney Suzanne Tighe of the Scranton office of Swartz Campbell and Attorney Joseph Hudock of the Pittsburgh office of Summers McDonnell for giving me a heads-up on these decisions.  I also note that Attorney Joseph Hudock was the prevailing defense attorney in the Williams v. GEICO case.

Thursday, October 20, 2011

Judge Terrence Nealon of Lackawanna County Addresses Various Issues in Water Damage/Property Loss Insurance Matter

Tort Talkers who do water damage/property loss insurance litigation might be interested in reading a recent Opinion by Judge Terrence R. Nealon in the case of Church of the Forgotten Souls v. NGM Insurance Company, No. 10 - Civil - 7078 (C.P. Lacka. Co. Oct. 6, 2011 Nealon, J.).

In this case, Judge Nealon denied an insured's Preliminary Objections to the insurer's counterclaim/third party complaint alleging fraudulent misrepresentations by the insured, applicability of policy exclusions, failure to cooperate in assessing loss valuation, and applicability of "other insurance" clauses.

Anyone desiring a copy of this Opinion may contact me at

Wednesday, October 12, 2011

Post-Koken UIM - Bad Faith Decision Out of Western District Federal Court

I was recently advised of a post-Koken severance vs. consolidation bad faith post-Koken case out of the Federal District Court for the Western District Court of Pennsylvania.

In Craker v. State Farm, No. 2011 – Civil – 0225 (W.D.Pa. Sept. 29, 2011 Lancaster, C.J.), Chief Judge Gary L. Lancaster addressed State Farm’s Motion to Sever and Stay the bad faith portion of the post-Koken claim presented and allow the UIM portion of the claim to proceed.

In this matter, the Plaintiff sought bad faith discovery during the pendency of both claims. State Farm refused to participate in such discovery under the position that it did not need to do so until the UIM claim was resolved.

The Plaintiff filed a Motion to Compel State Farm to respond to the bad faith discovery requests. State Farm argued that it would be irreparably prejudiced if it were forced to produce its UIM claims file, including the mental impressions, conclusions, and opinions of the handling claims representative, in response to this discovery.

As an additional defense to the Motion to Compel, State Farm filed a Motion to Sever and Stay the bad faith claim.

The Craker court denied the Motion to Sever and Stay the bad faith claim and also granted the Motion to Compel filed by the Plaintiff seeking discovery relevant to the bad faith claim.

Judge Lancaster did deny a portion of the Plaintiff’s Motion to Compel as to waiver of the attorney-client privilege as he found that the parties had not provided the court with sufficient facts to decide that issue.

On the severance issue, Judge Lancaster noted that although the parties argued in their briefs as to whether or not the UIM claim and the bad faith claim should be tried together, bifurcation of the trial was not the “real question” being presented to the court. Rather, the court viewed the issue presented as to whether or not State Farm was entitled to “phased discovery” as requested (i.e. no bad faith discovery until the UIM claim was completed).

Judge Lancaster stated that, even if he decided to bifurcate the trial, he would not necessarily rule in favor of a phased discovery plan.

The court noted that phased discovery is permissible under F.R.C.P. 26(f)(3(B) if requested. In this case the parties had noted in their pre-trial submissions to the court that discovery was not anticipated to be completed in phases.

The court also found that State Farm’s stated intention in its pre-trial submissions that they planned to object to any bad faith discovery to be “inconsequential” in the face of the other agreement of the parties that discovery would not be completed in phases.

Judge Lancaster also noted that, based upon the parties’ pre-trial submissions, the court had entered a discovery order with a single deadline for discovery. It was also pointed out by the court that State Farm’s Motion to Sever and Stay, which was being viewed by the court as ‘really’ a motion for phased discovery, was filed 12 days beyond that deadline and was, therefore, untimely.

Judge Lancaster nevertheless reviewed the merits of the Motion to Sever and Stay the bad faith claim and found that it would be inappropriate to postpone discovery on the bad faith claim until the UIM claim was resolved as that would delay the entire resolution of the matter.

The court noted that, if the cases were severed and stayed, a new set of discovery deadlines after the completion of the UIM portion of the case would be required. Additionally, the court was troubled by the fact that, in such a scenario, not only would the resolution of the entire matter be delayed but the same jury that decided the UIM claim could not be used to secure an “advisory verdict” on the bad faith claim.

Judge Lancaster additionally found that proceeding as requested by State Farm would not foster the interests of judicial economy. The court also went on to reject a number of other arguments put forth by State Farm in favor of the severance of claims.

The Craker decision is contrary to state court decisions from around the Commonwealth, including decisions from Judge R. Stanton Wettick of Allegheny County on how to handle discovery in combined UIM - bad faith cases.. In his Opinion, Judge Lancaster did not cite to any state court decisions but did note that, although State Farm apparently cited to such decisions, State Farm was the party that removed the case from the court of common pleas and subjected itself to the Federal Rules of Civil Procedure.

Under the Federal Rules of court applicable to this matter, the court ultimately found that the discovery request by State Farm was too late and the bifurcation request was too early.

In denying State Farm’s motion with respect to the discovery issues, the court in Craker did note that State Farm would again have the opportunity to request a severance, or bifurcation, of the bad faith claim from the UIM claim at the time of trial.

Although I am not sure how State Farm could have been any clearer in its position, a reading of the Craker decision leads to the conclusion that the parties should be careful in how they word their agreed upon case management submissions in the Federal Court system in order that there can be no question as to which arguments should be considered to be properly preserved.

Anyone desiring a copy of the Craker v. State Farm decision may contact me at

I note that I saw this decision highlighted in The Legal Intelligencer during the last week of September.  I was also tipped off on the case by Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer as well as Attorney Ken Goodman of the Wyomissing law firm of Rabenold, Koestel, and Scheidt.  I tip my hat to those sources in thanks.

Monday, October 10, 2011

Eastern District Federal Court Rules that Delay Damages are Recoverable Under UIM Policy

I have previously reported on how the courts have grappled with the issue of how to handle delay damages in post-Koken cases.

Almost a year ago, in December of 2010, the Pennsylvania Superior Court ruled (1) that delay damages should be calculated based upon the jury’s full verdict, as opposed to the molded downward amount after the application of credits due to the UIM carrier, and (2) that a Plaintiff could recover delay damages against a UIM carrier, even if the addition of the delay damages brought the verdict amount to a number higher than the available policy limits. See Marlette v. State Farm and Jordan, 10 A.3d 347 (Pa.Super. Dec. 10, 2010, Musmanno, Bender, Bowes, J.J.)(Opinion by Musmanno, J.).

Click here to view the Tort Talk post on the Marlette v. State Farm case.

This issue of delay damages in post-Koken cases was recently addressed again by the Federal District Court for the Eastern District of Pennsylvania in the case of Heebner v. Nationwide Ins. Enterprise, No. 10-2381 (E.D. Pa. Sept. 28, 2011).

In Heebner, the court reviewed the question of whether delay damages are to be included as a component of the compensatory damages to be paid under a UIM insurance policy.

The plaintiff in Heebner secured a verdict of $85,000.00. Delay damages in the amount of $48,201.96 were tacked on, resulting in a total award of $133,201.96. Nationwide paid the $85,000 under the terms of plaintiff's policy but refused to pay the delay damages under an argument that that delay damages were not damages for which it was liable under the terms of its UM/UIM policy.
After finding that delay damages were "merely an extension of the compensatory damages necessary to make a plaintiff whole" Judge Goldberg of the Eastern District ruled that Nationwide was required to pay the full amount of the award, delay damages and all.

In so ruling, the court noted that the Nationwide policy was ambiguous in its failure to fully define the term “compensatory damages.” Citing Pennsylvania Supreme Court cases from the 1980’s, it was also noted that delay damages are generally considered under Pennsylvania law to be a part of compensatory damages in any event. The Heebner court did not cite to the Marlette v. State Farm decision noted above.

Judge Goldberg concluded his Opinion by finding that Nationwide did not act in bad faith by taking the position it did on the delay damages issue. The court noted that neither party cited any case on point so as to render Nationwide’s position so unreasonable at the time as to constitute bad faith.

Anyone desiring a copy of this case may contact me at

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Source of image:

Image: digitalart /

Wednesday, October 5, 2011

Superior Court Finds Bystander Emotional Distress Claim to be Covered Under Auto Policy Definition of "Bodily Injury"

According to an August 27, 2011 article in The Legal Intelligencer by reporter, Gina Passarella, the Pennsylvania Superior Court recently ruled in a memorandum opinion that a bystander negligent infliction of emotional distress claim fell under the automobile insurance policy definition of a “bodily injury” even though there was no physical injury sustained by the injured party.

In the case of Lipsky v. State Farm Mutual Automobile Insurance Company, PICS Case No. 11-4128 (Pa. Super. September 1, 2011) (unpublished Opinion by Stevens, J.) (Donahue J. concurring; Ford Elliot, P.J. dissenting), a split three (3) judge Pennsylvania Superior Court panel upheld a Philadelphia County trial court decision that the definition of “bodily injury” in State Farm’s automobile insurance policy was broad enough to allow for a negligent infliction of emotional distress claim to be considered as a "bodily injury."

It is noted that the Superior Court did not find that the definition of “bodily injury” in the policy was ambiguous. Rather, the Court found that the definition was wide enough to include claims of emotional harm without physical injury.

The Superior Court also ruled that the two brothers and the father of the victim each had their own separate bodily injury claims rather then all having a single claim based upon the victim’s injuries.  Thus, they were each entitled to pursue the per person limits under the policy separately.

This matter arises out of an incident during which an allegedly intoxicated tortfeasor struck and killed a 17 year old pedestrian in the presence of the pedestrian’s father and two brothers. A lawsuit was brought on behalf of the decedent’s estate, as well as separate claims on behalf of the father and the brothers of the decedent who witnessed the accident. The separate claims of the father and the brothers were based upon a negligent infliction of emotional distress claim.

The Claimants also filed a separate Complaint for a declaratory judgment seeking a declaration that the emotional distress of each Plaintiff constituted a separate “bodily injury” under the State Farm policy allowing that person to recover his own $100,000.00 “each person” liability limits.  As noted above, the Claimants eventually prevailed on appeal in this case before the Superior Court.

I send thanks to Attorney Christine Lezinski of the Scranton law firm of Lenahan & Dempsey for bringing this case to my attention.

Anyone desiring a copy of this Opinion in Lipsky v. State Farm may click this LINK.

Judge Burke of Luzerne County Dismisses Cross-Claim by UIM Defendant Against Tortfeasor Defendant in Post-Koken Case

Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas recently sustained a tortfeasor defendant’s preliminary objections (filed by me) and dismissed a cross-claim for contribution and/or indemnification filed by the underinsured motorist (UIM) carrier defendant against the tortfeasor defendant in the post-Koken case of Emery v. Culver and Nationwide, No. 6764 – CIVIL – 2010 (C.P. Luz. Co. Sept. 28, 2011 Burke, J.).

Regular readers of Tort Talk may recall that I previously reported on the Post-Koken issue of whether or not the underinsured motorist (UIM) carrier defendant could assert a cross-claim against the tortfeasor defendant seeking the recovery on the UIM carrier’s potential subrogation rights (i.e., if the UIM carrier pays out money to the injured party, the UIM carrier has a right to recover the amount of that payment from the tortfeasor who caused the plaintiff’s injuries).

Judge Linda Wallach Miller of the Monroe County Court of Common Pleas addressed this issue her post-Koken decision of Bridgeman v. Cruz and Nationwide,, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.). In Bridgeman, 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.

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.

In addition to citing Judge Miller’s on point decision in Bridgeman in support of the preliminary objections filed in the Emery case before Judge Burke, I also cited cases asserting that the cross-claim was improper because the UIM carrier and the tortfeasor defendants could not be considered to be joint tortfeasors (the claim against the UIM carrier is in contract, and the claim against the tortfeasor sounds in negligence). See Sehl v. Neff and State Farm, No. 3438 EDA 2009, 2011 WL 2990902 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg); Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.).

Anyone desiring a copy of Judge Burke’s Order without Opinion and/or my preliminary objections and supporting brief in the Emery v. Culver case may contact me at

Disclaimer: Past results by Foley, Cognetti, Comerford, Cimini & Cummins are no guarantee of future results and each case must be handled on its own merits.

Monday, October 3, 2011

U.S. Supreme Court Declines to Hear Appeal of Former Luzerne County Judge Ann Lokuta

Here's a link to an article in today's Times Leader out of Wilkes-Barre, PA regarding the United States Supreme Court issuing an Order denying certiorari on the appeal of former Luzerne County Judge Ann Lokuta on the issues surrounding her removal from the bench:

Nationwide and Harleysville Insurance Companies to Merge

Nationwide Mutual Insurance Co. and Harleysville Insurance announced on Thursday, September 29th that they have agreed to a merger.

Nationwide Mutual will acquire the Harleysville Group for $760 million. Harleysville Mutual policyholders will become policyholders and members of Nationwide Mutual.

Here's a link to an online article in the insurance journal on the topic:

Sunday, October 2, 2011

Schnader Print Media Awards for Excellence in Legal Writing

On Friday, I was notified by the Pennsylvania Bar Association that my article “To Friend or Not To Friend” has been selected as the First Place winner and that my article “Defense-Oriented Decisions Dominated 2010’s Biggest Non-Automotive Cases” has been selected as the Second Place winner in the Weekly Newspapers category of the 32nd annual William A. Schnader Print Media Awards.  Both articles appeared in The Pennsylvania Law Weekly over the past year.

This competition, honoring excellence in legal writing, is sponsored by the Pennsylvania Bar Association and the national law firm of Schnader Harrison Segal & Lewis, LLP.  This the fifth and sixth time articles of mine have been selected for Schnader Print Media Awards over the past five years.

There will be an awards ceremony on November 11th at the Pennsylvania Newspaper Association Annual Convention which will be held at the Bedford Springs Resort in Bedford, Pennsylvania.

The article “To Friend or Not to Friend,” which analyzes the emerging common law in Pennsylvania on the discoverability of information on social media sites, can be viewed here:

The article “Defense-Oriented Decisions Dominated 2010’s Biggest Non-Automotive Cases” can be viewed here:

I send thanks to Hal Cohen, the publisher, and Hank Grezlak, the Editor-in-Chief, of the Pennsylvania Law Weekly for allowing me the privilege of writing for the paper and putting my English Degree from Villanova University to good use.

Source of image of figure at computer:

Recklessness Allegations in a Premises Liability Case

In his recent September 27, 2011 Memorandum and Order in the case of Maloney v. Fidelity Deposit and Discount Bank, No. 11-Civil-2033 (C.P. Lacka. Co. Sept. 27, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas again addressed the propriety of allegations of gross, wanton, and reckless conduct in personal injury Complaints.

Tort Talkers may recall that I recently summarized an Opinion by Judge Nealon on this issue in the context of automobile accident matters in the case of Freethy v. Goike, No. 2011 - CV - 530 (C.P. Lacka. Co. Sept. 9, 2011 Nealon, J).

This Maloney case concerned a trip and fall and a lawsuit by a tenant against a property owner.

The Maloney case more specifically arose out of a trip and fall that occurred on May 29, 2009 in an unlit interior stairway leading to the second floor of a commercial building owned by the Defendants, Fidelity Deposit and Discount Bank, and Fidelity D&D Bancorp, Inc. [“Fidelity”]. The Plaintiff alleges that he was injured when he was caused to fall while walking down the dark stairway.

The Plaintiff alleged that he formerly owned the subject building but that the bank had pursued mortgage foreclosure litigation against him. The bank prevailed and, at one point, directed the Plaintiff to remove his remaining property from the premises.

The Plaintiff contended that the only way he could access his property was by way of a darkened staircase. Prior to the incident, Fidelity had allegedly caused the utilities, including the electricity, to be terminated at the premises, which left the stairway dark and not lit by either natural or artificial lighting.

The Plaintiff asserted in his Complaint that, although Fidelity was aware of the darkened condition of the stairway, the bank did not provide the Plaintiff with any means of lighting the stairway in order to safely use the stairway to remove his property from the premises.

As such, the Plaintiff alleged in his Complaint that Fidelity had acted with gross, wanton, recklessness, careless, and negligent conduct by requiring the Plaintiff to use the subject stairway when Fidelity knew it was in a dangerous and darkened condition.

Fidelity filed Preliminary Objections in the nature of a demurrer to the Complaint seeking to strike the Plaintiff’s references to gross, wanton, and reckless conduct. Fidelity asserted that the Complaint filed to allege specific facts in support of these allegations. The Plaintiff responded by asserting that allegations of wanton conduct, reckless conduct, and gross negligence involved conditions of the mind which could be asserted generally in the Complaint.

After reviewing the case law on the issues presented, including again relying upon (as he did in the Freethy decision) the Superior Court Opinion in the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), and after accepting as true the allegations and reasonable inferences from the facts in the Complaint as required by the standard of review, Judge Nealon held that the allegations of the Plaintiff’s Complaint were sufficient to allow the claims of gross, wanton, and reckless conduct to proceed on into discovery.

Judge Nealon noted that whether or not the Plaintiff would be able to produce sufficient evidence to support those allegations could be determined during the course of discovery.

The Court also noted that, in the event that discovery failed to yield sufficient factual support for these allegations, Fidelity had the right to move to strike the allegations from the action or attempt to secure a stipulation from the Plaintiff to remove such allegations later in the proceedings.

As such, the Court denied the Defendant’s demurrer to the allegations of wanton and reckless conduct in the Maloney case.

While it appears that these types of general allegations may now be allowed to proceed, at least in Lackawannna County, it may be advisable for the parties to focus at least a portion of their discovery efforts on any facts to support any claim of recklessness on the part of the defendant.  If a plaintiff is unwilling to stipulate such allegations out at the conclusion of discovery, a motion for summary judgment may prove necessary in order to close the door on any effort by the plaintiff to make a claim for punitive damages at trial based upon these allegations.

Legal research for law in support of such a summary judgment motion could begin here on Tort Talk with a review of decision by Judge William Amesbury of the Luzerne County Court of Common Pleas outlining the necessity of facts to support such claims of wanton and reckless conduct.  That Tort Talk post can be viewed here.

Anyone desiring a copy of Judge Nealon’s Opinion in the case of Maloney v. Fidelity Deposit and Discount Bank (premises liability case) or Freethy v. Goike (auto accident case) may conduct me at