Monday, February 28, 2011

FEDERAL MIDDLE DISTRICT JUDGE WILLIAM J. NEALON Joins Panel of Judicial Presenters at Upcoming Tort Talk Expo

I am pleased to report that Federal Middle District Court Judge William J. Nealon has agreed to join the panel of judicial presenters at the upcoming April 20, 2011 Tort Talk Expo at the Mohegan Sun Casino. Judge William J. Nealon will assist the other members of that panel in the presentation of tips for litigants to improve their chances for success at a Pre-Trial Settlement Conference.

That presentation will follow the portion of the program in which Judge Thomas Raup and Judge Thomas Wallitsch will present their tips on ways to improve chances for success at a Mediation or Arbitration.

Seats are being filled up quickly by Plaintiff's attorneys, Defense counsel, and Claims Professionals. If you are interested in attending this seminar/networking event, please use the Registration Form below.



TORT TALK EXPO 2011

Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]

(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)


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


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

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

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

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



The CLE Program will include the following topics and presenters:


THE TORT TALK TOP TEN (or so) CASES
Presenter: Daniel E. Cummins, Esquire


LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS
Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)


ANATOMY FOR LAWYERS: NECK AND BACK
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates
Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon


A VIEW FROM THE BENCH:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire

Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration

Presenters: Federal District Judge William J. Nealon, Lackawanna County Judge Robert A. Mazzoni and other members of judicial panel to be identified - Tips for Pre-Trial Conferences


Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.



Costs to cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives and risk managers
$25.00

Lawyers who are Tort Talk Email Subscribers
$145.00

Lawyers who are not Tort Talk Email Subscribers
$165.00



Make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.


Name(s)____________________________________



Firm/Company_______________________________


MAIL REGISTRATION FORM AND PAYMENT TO:



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


For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.






HOPE TO SEE YOU THERE!

Sunday, February 27, 2011

Judge Carmen Minora of Lackawanna County Addresses Amendment of Pleadings and Summary Judgment Based Upon General Release

Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently issued an opinion in the case of Zummo v. City of Scranton, No. 2005- CV - 1369 (Lacka. Co., Feb. 10, 2011, Minora, J.) in which he granted (1) the Defendant's Motion to Amend its Answer and New Matter to include the defense of release and (2) the Defendant's Motion for Summary Judgment based upon the same General Release that was previously entered into by the parties on the same issues presented in this case.

The underlying facts of this case involved alleged damages to the Plaintiffs' property as result of storm water runoff allegedly caused by a storm water drainage system owned by the City of Scranton.

The Defendant's Motion to Amend the New Matter five years after the action was commenced was granted under the liberal Rules of Civil Procedure pertaining to the amendment of pleadings. The court rejected the Plaintiffs' allegations that they would be "prejudiced" by the allowance of the amendment at this stage of the litigation.

The Motion for Summary Judgment was granted after the court rejected the Plaintiffs' contention that the the prior Release entered into by the parties after a previous litigation on similar issues did not cover future damages. The Plaintiffs also attempted to argue that current case was a claim for a different recovery for a nuisance of a progressive nature allegedly caused by the City's alleged failure to abate the storm water runoff as promised in the previous Release.

Rather, Judge Minora found that the terms of the General Release were "clear and unambiguous" in that the Plaintiffs had agreed to "forever discharge" the City of Scranton "of and from any and all claims" the Plaintiffs "will have or ever had" regarding the storm drainage system.


Anyone desiring a copy of this Zummo v. City of Scranton decision by Judge Minora may contact me at dancummins@comcast.net.

Upcoming Pennsylvania Defense Institute CLE Seminar

The Pennsylvania Defense Institute is offering a new 3 CLE credit program this year entitled “Perspectives on Women in the Law: An Insurance Defense Symposium” on March 24 at the Hollywood Casino at Penn National Race Course near Harrisburg.




“PERSPECTIVES ON WOMEN IN THE LAW:
AN INSURANCE DEFENSE SYMPOSIUM”

MARCH 24, 2011
HOLLYWOOD CASINO AT
PENN NATIONAL RACE COURSE


PDI proudly presents “Perspectives on Women in the Law: An Insurance Defense Symposium” for lawyers to hear from successful women lawyers from the bench, private practice, and from the insurance industry. Women lawyers face unique challenges, particularly in the insurance defense industry. This program is educational and enriching and also presents as an opportunity to network with others in the profession. And it is fun, too, with all the amenities of the Hollywood Casino!

Reasons to attend: Get perspectives from successful women on the bench, in private practice, and in the insurance industry while earning 3 CLE credits.


The agenda:

8:15-9:00 Registration and Continental Breakfast

9:00-9:45 View from the Bench – Women in the Judicial System
Honorable Justice Joan Orie Melvin, Pennsylvania Supreme Court

9:45-10:00 Break

10:00-10:45 View from the Bar – A Managing Partner’s Perspective
Marie Milie Jones, Esquire
Meyer, Darragh, Buckler, Bebenek & Eck
Pittsburgh, Pennsylvania

10:45-11:00 Break

11:00-12:30 View from the Industry – Women in Insurance (Panel Discussion)

Karen Yarrish, Vice President, Secretary & General Counsel
Penn National Insurance
Beth Persun, Director of Claim Administration, MCare Fund
Angela Pinker, Director of Commercial Lines Underwriting,
Nationwide Insurance
Lisa Katterman, Associate Counsel & Director, Government
Relations, Penn National Insurance

12:30-1:30 Lunch

REGISTRATION FORM


PERSPECTIVES ON WOMEN IN THE LAW:
AN INSURANCE DEFENSE SYMPOSIUM


March 24, 2011
Hollywood Casino at
Penn National Race Course
777 Hollywood Boulevard
Grantville, PA 17028


CLE Program, Continental Breakfast and Lunch: $100.00

Name(s)_____________________________________

Firm/Company________________________________


Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697



Hotel Accommodations: For those intending to stay overnight, the Holiday Inn Harrisburg - Hershey is directly across from the Hollywood Casino. You may contact the Holiday Inn at 717-469-0661.




For more information, contact PDI at 800-734-0737
FAX 800-734-0732
coled01@padefense.org

Thursday, February 24, 2011

Pennsylvania Supreme Court: Attorney-Client Privilege Works Both Ways

Yesterday, the Pennsylvania Supreme Court published its 5-2 decision in the case of Gillard v. AIG Insurance Company, 2011 WL 650552 (Pa. Feb. 23, 2011, Saylor, J.)(McCaffery, J. and Eakin, J. dissenting) ruling that the attorney client privilege not only applies to communications from the client to the lawyer, but also to communications from the lawyer to the client.

In so ruling, the Court eradicated the uncertainty on the issue presented created by the Court's previous plurality decision in the case of Nationwide v. Fleming.

Writing for the Court in Gillard, Justice Saylor unequivocally stated, "We hold that, in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." Majority op. at 23.

Justice Saylor was joined in his majority decision by Chief Justice Castille, and Justices Baer, Todd, and Orie Melvin. Justices McCaffery and Eakin each wrote dissenting opinions.

Here's the link to view the majority Opinion written by Justice Saylor: http://www.aopc.org/OpPosting/Supreme/out/J-58-2010mo.pdf


Here's the link to view Justice McCaffery's dissent: http://www.aopc.org/OpPosting/Supreme/out/J-58-2010do2.pdf


Here's the link to view Justice Eakin's dissent: http://www.aopc.org/OpPosting/Supreme/out/J-58-2010do1.pdf

Wednesday, February 23, 2011

Judge Terrence Nealon of Lackawanna County Addresses Post-Trial Motions in Sedor v. Community Medical Center

On February 22, 2011, Judge Terrence Nealon of the Lackawanna County Court of Common Pleas issued a 69 page opinion addressing the post-trial motions filed in the case of Sedor v. Community Medical Center, et al., No. 2005 CV 2143 (Lacka. Co., Feb. 23, 2011, Nealon, J.).

Judge Nealon aptly summarized his holdings in the first few pages of the Opinion, as follows:

"In the wake of a $3,250,000.00 personal injury award, the solely liable defendant hospital has filed a motion for post-trial relief under Pa. R.C.P. 227.1 and the prevailing plaintiffs have presented a motion for delay damages and post-judgment interest. The hospital requests judgment in its favor and argues that the opinions expressed by the plaintiffs’ experts on causation were so irreconcilably inconsistent that they should be declared legally incompetent to support the jury’s verdict. The hospital alternatively seeks a new trial on the grounds that the verdict was against the weight of the evidence, prejudicial evidentiary errors were committed at trial, and improper jury instructions and special interrogatories were submitted to the jury.

Although two of the plaintiffs’ experts differed as to whether an infection in the male plaintiff’s foot was already present on the date that he was struck with a hospital bed, the hospital is not entitled to JNOV based upon the Mudano rule since all three of the plaintiffs’ causation experts agreed that the male plaintiff’s necrotizing fasciitis and resulting amputation were caused by the bed trauma. Nor was the verdict against the weight of the evidence inasmuch as (a) there was ample evidence to support the conclusion that either CMC or its employee was exclusively liable, and (b) the jury’s compromise verdict on damages reflects that it did consider the male plaintiff’s apparent failure to reasonably mitigate his damages.

As for the evidentiary rulings, it was not an abuse of discretion to allow: (1) plaintiffs’ corporate liability expert to address the hospital’s negligent maintenance of beds since the hospital was not prejudiced by any discrepancy between that expert’s testimony and the plaintiffs’ pleadings; (2) Dr. Sedor to make limited reference to his own medical knowledge when explaining his mitigation conduct; (3) the presentation of a hypothetical question to a defense expert that was based upon an assumption which was supported by the evidence; and (4) the treating physiatrist to testify concerning causation in accordance with his pre-trial reports. The hospital has also failed to establish reversible error in excluding evidence of the male plaintiff’s prior suspension of privileges at another hospital and the ensuing Luzerne County litigation regarding that suspension. Any such evidence was properly precluded pursuant to Pa. R.E. 403 since the defense experts did not opine that the earlier suspension adversely affected the male plaintiff’s employability or future earning capacity and the introduction of that evidence would have injected collateral issues, unnecessarily delayed the trial and potentially caused the jury to decide this personal injury action on an improper basis.

In light of the conflicting evidence submitted by the parties with respect to the cause of the male plaintiff’s harm, the jury instructions on concurring causes and pre-existing conditions were appropriate. Furthermore, the separate damage interrogatories submitted to the jury were authorized by appellate precedent. However, the hospital provided no authority or plausible reason for three special interrogatories on mitigation of damages and it was not an abuse of discretion to deny that request. Therefore, the hospital’s motion for a new trial will be denied. In addition, the plaintiffs’ motion for delay damages and post-judgment interest will be granted to the extent that the plaintiffs will be awarded pre-judgment interest in the amount of $886,953.00 and post-judgment interest of $680.05/day from October 8, 2010 until the date of payment by the hospital."



Anyone desiring a copy of Judge Nealon's Opinion may contact me at dancummins@comcast.net.

Superior Court En Banc Re-Argument Scheduled in Barrick v. Holy Spirit Hospital

As the writer of the amicus brief on behalf of the Pennsylvania Defense Institute in favor of the defense position, I just received notification from the Pennsylvania Superior Court that the Re-Argument en banc in the case of Barrick v. Holy Spirit Hospital has been scheduled to take place on April 5, 2011.

You may recall that Barrick v. Holy Spirit Hospital is the case in which the Superior Court originally held that communications from an attorney to the medical expert retained on behalf of that attorney's client were discoverable, particularly where, as in this case, the trial court judge found that the Plaintiff's attorney's communications to his expert would have "materially impacted" that expert's opinion in the matter. The Superior Court later withdrew its Opinion when it granted the Plaintiff's Petition for Re-Argument en banc.

Interestingly, the Superior Court has scheduled the argument to take place at the MMI Preparatory School, 154 Centre Street in Freeland, Pennsylvania.

Here is a link to a prior Tort Talk post offering more background on the case:

http://www.torttalk.com/2010/09/amicus-curiae-position-advocated-for.html


Here's a link to the amicus curiae brief I filed on behalf of the Pennsylvania Defense Institute:

http://www.jdsupra.com/post/documentViewer.aspx?fid=13d479ae-68e2-41c2-8279-492075821e68

Tuesday, February 22, 2011

Pennsylvania Superior Court: Intoxication Evidence Inadmissible Where Liability Conceded (And No Puntive Damages Claim Asserted)

In a February 15, 2011 decision of first impression in the case of Knowles v. Levan, 2011 WL 522784 (Pa.Super. Feb. 15,2011, Stevens, Shogan, and Mundy, JJ.)(Opinion by Shogan, J.), the Pennsylvania Superior Court held that evidence of a defendant's drug and alcohol use prior to a two-vehicle accident should not have been admitted where the defendant's estate conceded liability and the trial was only over the issue of the plaintiff's damages.

According to the Opinion, this matter arose out of a motor vehicle accident that occurred on May 28, 2007 on Interstate 81 north in Dauphin County. At that time, the Defendant, who was fatally injured in the accident, entered the northbound lane of highway while traveling south and was then involved in a head-on collision with the Plaintiffs’ vehicle.

The Court emphasized in its Opinion that the Plaintiffs’ Complaint did not seek punitive damages.

Prior to trial, the defense conceded liability and negligence on the Defendant’s behalf and the case proceeded to trial in the Dauphin County Court of Common Pleas on the issues of damages only.

The defense filed a pre-trial motion in limine to preclude testimony regarding the defendant's decedent's use of cocaine and alcohol prior to the accident.

The trial court denied the motion ruling that the evidence would be admissible to tell the plaintiff's story and illustrate how the accident occurred.

The jury was informed at trial of the defendant's decedent's consumption of cocaine and that her blood alcohol concentration (“BAC”) was .227.

The trial court also instructed defense counsel to inform the jury that a person with a BAC over .08 exceeded the legal limit for driving, and further instructed that if defense counsel did not inform the jury of this fact, then the trial court would.

At the conclusion of the trial, the jury awarded Mr. Knowles $250,000.00 in damages and awarded Mrs. Knowles $4,000.00 in damages.

The trial court denied the Defendant’s post-trial motions seeking a new trial on the basis that the trial erred in denying the pre-trial Motion In Limine.

On appeal, the Superior Court found that the trial court erred on the admissibility of evidence issue but felt that the error was harmless in light of the cautionary instructions given by the trial court judge and therefore allowed the verdict to stand.

In footnote 3 of its Opinion, the Pennsylvania Superior Court noted that neither the litigants nor the Court’s own independent research revealed any binding precedent on the evidentiary issue presented and, therefore, the question of the admissibility of intoxication to illustrate how an accident occurred, in a case where negligence is conceded, appeared to the court to be an issue of first impression before the Superior Court.

As such the Knowles v. Levan decision stands for the proposition that where liability is conceded (and where no punitive damages claims are at issue), evidence of a defendant driver's intoxication at the time of an accident is not admissible.

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

Lackawanna County Judge Robert A. Mazzoni Agrees to Join Panel of Judicial Speakers at Upcoming Tort Talk Expo 2011

I am pleased to report that Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas has agreed to join the panel of judges set to speak at the upcoming April 20, 2011 Tort Talk Expo 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Judge Mazzoni, along with other judges to be confirmed, will provide tips to improve one's chances for success at pre-trial settlement conferences.

Below is the advertisement and registration form if you are interested in attending the event:

TORT TALK EXPO 2011

Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]

(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)


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


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

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

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

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


The CLE Program will include the following topics and presenters:


THE TORT TALK TOP TEN (or so) CASES
Presenter: Daniel E. Cummins, Esquire


LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS
Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)


ANATOMY FOR LAWYERS: NECK AND BACK
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates
Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon


A VIEW FROM THE BENCH:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire

Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration
Presenters: Judge Robert A. Mazzoni and other members of judicial panel to be confirmed -- Tips for Settlement Conferences


Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.



Costs to cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives and risk managers
$25.00

Lawyers who are Tort Talk Email Subscribers
$145.00

Lawyers who are not Tort Talk Email Subscribers
$165.00



Make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.


Name(s)____________________________________



Firm/Company_______________________________


MAIL REGISTRATION FORM AND PAYMENT TO:



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


For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.



HOPE TO SEE YOU THERE!

Pennsylvania Supreme Court Addresses Test for Liability at Construction Sites

In its January 19, 2011 decision in the case of Beil v. Telesis Construction, Inc., PICS Case No. 11-0143 (Pa. Jan. 19, 2011, Todd, J.; McCaffrey, J., dissenting), the Pennsylvania Supreme Court addressed the test to determine the respective liability of a general contractor and the owner of a property for injuries sustained by an employee of a subcontractor at a construction project.

In this case, the Defendant owner, Lafayette College, hired a general contractor, Telesis Construction, Inc. to renovate a building on the college’s campus.

The general contractor subcontracted the roofing work to Kunsman Roofing and Siding. The Plaintiff, David Beil, was employed by the roofing and siding company as a roofer.

The college also separately contracted with Masonry Preservation Services, Inc. to work on the outer walls of the building. Scaffolding was erected by the Masonry Preservation Services along the side of the building and was not equipped with fall protection devices.

This lawsuit arose out of an incident during which the Plaintiff fell from scaffolding while doing the roofing work on the construction project.

The Plaintiff filed suit against the college as the property owner, Telesis as the general contractor, and Masonry Preservation Services as the subcontractor scaffolding owner, claiming that all three Defendants were negligent.

At the trial level, the college-owner Defendant filed a Motion for Summary Judgment on the grounds that it was not liable for injuries to employees of an independent contractor or its subcontractors. The college also asserted that it did not retain the degree of control required for the limited exception to the rule for liability to apply. The trial court denied the college’s summary judgment motion and a jury later found in favor of the Plaintiff and against all three Defendants with a $6.8 million dollar verdict.

The college filed post-trial motions seeking a judgment withstanding the verdict contending that it was not liable under either the exception for “retained control” or the exception for “peculiar risk.” The trial court denied the college’s motions.

In this decision on appeal, the Supreme Court held that the college was not liable as a matter of law under the “owner control” or “peculiar risk” exceptions to the general rule that there is no liability for injuries sustained by employees of an independent contractor or its subcontractor.

In its Opinion, the Pennsylvania Supreme Court provides a nice review of the noted exceptions to the general rule of non-liability of landowners in this regard and held that “a property owner retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, an even imposing its own safety requirements at a work site, does not constitute control for purposes of imposing liability.”

The Supreme Court emphasized that the college, as the owner of the property, did not exercise control over the way the workers performed their work. As such, the Supreme Court concluded that the control that was asserted by the college over the project was not sufficient to satisfy the exception to the general rule of non-liability. As stated, the Order requiring the entry of a judgment not withstanding the verdict in favor of the college was affirmed.

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

Monday, February 21, 2011

Recent Bad Faith Decision out of Eastern District

In a January 31, 2011 Memorandum Opinion, in the case of Eley v. State Farm, No. 10 cv 5564 (E.D.Pa. Jan. 31, 2011, Baylson, J.), Judge Baylson of of the Federal District Court for the Eastern District of Pennsylvania granted the Defendant's 12(b)(6) Motion to Dismiss Plaintiff's bad faith claim for failure to adequately plead the elements of that cause of action in the Complaint filed in this post-Koken case.

The Plaintiffs asserted that they adequately pled a cause of action where they alleged that an accident occurred, that the Plaintiff's policy provided for UIM coverage, that the Plaintiff fully complied with the policy terms and that the carrier failed to make an offer to settle the claim.

The Plaintiffs asserted that they alleged sufficient facts to state a claim for bad faith because Defendant had no reasonable basis to deny benefits and knew or recklessly disregarded its lack of such a basis.

Judge Bayslon disagreed and noted that the Plaintiff's Complaint only contained conclusory allegations without sufficient factual support. More specifically, the court noted that the Plaintiff's insufficient pleadings consisted of the following:

18. There was no reasonable basis for the following acts and omissions of defendant:

(a) Failure to negotiate plaintiffs' [UIM] claim in good faith.

(b) Failure to properly investigate and evaluate plaintiff[s'] insurance claim.

(c) Such other acts to be shown through discovery.

19. The defendant knew or recklessly disregarded the fact that it had no reasonable basis for its above conduct in handling plaintiffs' [UIM] claim.

20. Defendant's conduct in handling plaintiffs' [UIM] claim constituted bad faith within the meaning of 42 Pa. C.S.A. § 8371.

21. Defendant acted in reckless disregard of plaintiffs' claims and rights and its conduct was willful, wanton and outrageous.


The court found such "bare-bones" allegations to be insufficient to allow the Complaint to stand. The court dismissed the bad faith allegations, without prejudice. The Plaintiff's breach of contract claim was allowed to stand.

Here's a link to the Opinion online: http://docs.justia.com/cases/federal/district-courts/pennsylvania/paedce/2:2010cv05564/393051/15/


I send thanks to Walter A. McClatchy, Jr. of the Philadelphia law firm of Walter A. McClatchy, Jr. & Associates for bringing this case to my attention.

More Articles on Ciavarella Trial - What's next?

Here are some articles on the Ciavarella trial from today's Scranton's Times-Tribune by Dave Janoski:

More to the story?: http://thetimes-tribune.com/news/whole-truth-left-untold-at-trial-1.1107780


More fallout: http://thetimes-tribune.com/news/one-down-more-to-go-in-corruption-probe-1.1107783#axzz1Eawauxea

Saturday, February 19, 2011

More Articles on the Results of the Ciavarella Trial

Here are some more articles on the Ciavarella trial from the local newspapers on Saturday:


An overview: http://thetimes-tribune.com/news/defense-prosecution-declare-victory-in-ciavarella-conviction-1.1107461#axzz1ER14aKME


Candid commentary from a juror: http://thetimes-tribune.com/news/juror-more-to-case-than-meets-the-eye-1.1107460#axzz1ER1jAASk

A mother's reaction: http://citizensvoice.com/news/furious-mother-confronts-ciavarella-following-verdict-1.1107333#axzz1ER3hcKXW


How it all began: http://thetimes-tribune.com/news/prosecutor-d-elia-s-downfall-kickstarted-kids-for-cash-probe-1.1107444#axzz1ER0WpAUu


Local lawyers weigh in: http://thetimes-tribune.com/news/legal-profession-reacts-to-ciavarella-verdict-1.1107387#axzz1ER1jAASk


Former Judge Ann Lokuta weighs in: http://thetimes-tribune.com/news/courts/luzerne-county-officials-weigh-in-on-ciavarella-conviction-1.1107443#axzz1ER1jAASk

Ciavarella Guilty on 12 of 39 Counts

Here's the link to a February 18, 2011 Scranton Times-Tribune articles on the jury verdict and other issues from the Ciavarella trial:

http://thetimes-tribune.com/news/ciavarella-guilty-on-12-of-39-charges-1.1107069#axzz1ENhft2Nd

http://thetimes-tribune.com/news/prosecutor-ciavarella-probe-stemmed-from-d-elia-investigation-1.1107128#axzz1ENiKJdKF


The Times Leader reported in an article by Terrie Morgan-Besecker that an appeal is being considered:

http://www.timesleader.com/news/Grounds_for_an_appeal__02-18-2011.html

Thursday, February 17, 2011

UPDATE: TORT TALK EXPO 2011 (April 20, 2011)

Since posting the advertisement for the upcoming Tort Talk Expo 2011 I have already received a number of sponsors to the event and registrants to attend the seminar and I thank you for that.

I also received a number of inquiries as to whether or not the program has been approved by the Supreme Court of Pennsylvania Continuing Legal Education Board for CLE Credits. The program has been approved for three (3) CLE credits, two (2) of which are substantive credits and one (1) of which is an ethics credit.

I have revised the Advertisement/REGISTRATION FORM below to reflect this approval of the program for CLE credits:


TORT TALK EXPO 2011

Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania

April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]

(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)


Followed by a Cocktail Reception at the
Breakers Nightclub
in the Mohegan Sun Casino
The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

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

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

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


The CLE Program will include the following topics and presenters:


THE TORT TALK TOP TEN (or so) CASES
Presenter: Daniel E. Cummins, Esquire


LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS
Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)


ANATOMY FOR LAWYERS: NECK AND BACK
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates
Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon


A VIEW FROM THE BENCH:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire

Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration
Other members of judicial panel to be identified


Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.



Costs to cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives and risk managers
$25.00

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HOPE TO SEE YOU THERE!

Ciavarella Jury Breaks for the Day (Thursday) Without Verdict; Deliberations to Continue Friday (2/18/11)

Here's a link to a late Thursday news story from the Scranton Times-Tribune updating the Ciavarella Trial:

http://thetimes-tribune.com/ciavarella-trial-jury-deliberations-to-continue-friday-1.1106439


Here's a link to a story from this morning's Scranton Times-Tribune outlining how the participants killed the day yesterday waiting for the jury to come back:

http://thetimes-tribune.com/news/ciavarella-awaits-a-verdict-1.1106929#axzz1EJiHP73i

Wednesday, February 16, 2011

Ciavarella Jury Gets the Case But Then Is Excused for the Day (on Wednesday)

On Wednesday, February 16, 2011, the jury in the Ciavarella trial took the case into the deliberations room but was then excused for the day shortly thereafter. Jury deliberations will continue on Thursday, February 17, 2011.

Here's a link to a Times-Tribune article outlining the events at trial on Wednesday:

http://thetimes-tribune.com/trial-update-no-verdict-jury-heads-home-for-day-1.1105820#axzz1E8YWyxJv

Tuesday, February 15, 2011

Validity of a Type of Negligent Infliction of Emotional Distress Claims in Medical Malpractice Matters Called Into Question

An ongoing issue generating some conflicting decisions in the trial courts across the Commonwealth of Pennsylvania in medical malpractice cases concerns the ability of family members to pursue a claim for negligent infliction of emotional distress on the grounds that they had to witness the deterioration and eventual demise of their loves one allegedly as a result of the negligence of a medical provider.

Under the general bystander theory of negligent infliction of emotional distress, the required elements of proof mandate that the claimant (1) must have been at the scene of the incident, (2) must have suffered from a sensory and contemporaneous observance of negligent acts or omissions, and (3) that the claimant must have been closely related to the victim of the negligence.

My partner, Timothy E. Foley, Esquire and myself, along with a number of other defense counsel, were successful in having a demurrer sustained against such a claim in the recent Lackawanna County Court of Common Pleas decision of McHale vs. Community Medical Center, et.al., 2010-Civil-3496 (Lacka. Co. January 7, 2011, Thomson, S.J.).

Before I get into that case, here is some background on the issue presented.

Medical malpractice defendants have challenged these types of negligent infliction of emotion distress claims on several grounds, including by arguing that the slow demise of the decedent prevents a finding of any shocking event necessary to support the claim for negligent infliction of emotional distress. Another argument is that lay people are not able to recognize a professional misjudgment or omission by a doctor to support a showing of a sensory and contemporaneous observance of negligent acts or omissions and a resultant jolting shock to one's mental status or emotional well-being.

Several trial court decisions out of Northeastern Pennsylvania over the past year have evidenced a differing opinion by judges as to the validity of this type of a claim.

Back in April of 2010, Judge Carmen Minora of the Lackawanna County Court of Common Pleas squarely addressed the issue in Ward v. Moses Taylor Hospital, 2010 WL 4357308 (Lacka. Co. 2010 Minora, J.). In Ward, the plaintiff-husband entered the hospital to treat for a partial paralysis condition and, allegedly as a result of negligent treatment, ended up a quadriplegic. The plaintiff's wife asserted a bystander claim for negligent infliction of emotional distress in the Complaint.

Judge Minora was constrained to deny the defendant's preliminary objections to the negligent infliction of emotional distress claim. The court found that plaintiff sufficiently pled her cause of action in accordance with the appellate case law existing at the time.

The court noted that, under a literal application of the elements of this cause of action, a plaintiff would be required to observe that the acts or omissions by the medical providers constituted medical malpractice, realize the medical impact of such negligence on the victim, and suffer emotional shock contemporaneously with that realization. In this regard, Judge Minora pointed to Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986) and Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986) as support.

Although Judge Minora noted that an understanding the medical significance of alleged negligent medical acts or omissions required a level of medical knowledge and expertise beyond that possessed by a typical layperson, because the case law did not require such an understanding by the lay person plaintiff, the court was "mandated to suspend [its] common sense" and overrule the Defendants' preliminary objections in the form of a demurrer.

A similar decision was handed down in October of 2010 by Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas in the case of Prushinski et al v. Quilo et al., No. 11704 - Civil - 2009 (Luz. Co., Oct. 12, 2010, Cosgrove, J.).

In Prushinski, the decedent was brought to the hospital for treatment of a condition and eventually died nine days thereafter allegedly as a result of medical negligence. Family members pled negligent infliction of emotional distress claims in the Complaint.

Citing Weaver v. Univ. of Pittsburgh Medical Center, 2008 WL 2942139 (W.D.Pa. 2008), Judge Cosgrove allowed the claim to proceed as the plaintiffs had alleged that they were close family members, had been in the presence of the decedent during his treatment and witnessed his demise, all resulting in emotional injuries.

Judge Cosgrove also ruled that, contrary to the defense contentions, "Plaintiffs need not have recognized at the time of [the decedent's] treatment that Decedent was being subjected to Defendants' negligence."

As noted above, last month, a contrary result was secured by my partner, Timothy E. Foley, Esquire and I, along with the other defense counsel in the McHale case out of Lackawanna County.

In his Order, visiting Senior Judge Harold A. Thomson, Jr., ruled that the Plaintiff’s claims for negligent infliction of emotional distress were “[s]tricken based upon [the Plaintiff’s] failure to state a viable claim under Pennsylvania law."

In this regard, the Court cited to Halliday v. Beltz, 514 A.2d 906 (Pa. Super. 1986). In Halliday, the Pennsylvania Superior Court held that a decedent's husband and daughter who brought medical malpractice action alleging negligent infliction of emotional distress did not meet the personal observation requirements of this cause of action where they never actually viewed any of the allegedly negligent surgery or postoperative emergency remedial measures employed thereafter, though they were present in hospital while procedures were performed.


Anyone desiring a copy of the Order issued in the Ward case or my Brief (to assist in research efforts) may contact me at dancummins@comcast.net

I also have a copy of Judge Cosgrove's decision in the Prushinski case if you need it. Judge Minora's decision in Ward is posted on Westlaw but if you do not have access to that I can get you a copy of that Opinion as well.


NOTE: Past results secured by my firm or I are no guarantee of future results and each case must be handled on its own merits.

Ciavarella Testifies

Here's a link to a February 15, 2011 article by Michael R. Sisak of Scranton's Times-Tribune outlining former Judge Ciavarella's testimony at trial:

http://thetimes-tribune.com/news/ciavarella-admits-tax-fraud-conspiracy-1.1105303#axzz1E3thWb6J



Here's an article with more detail on Ciavarella's testimony from the Times-Tribune:

http://thetimes-tribune.com/trial-update-ciavarella-wanted-to-avoid-scrutiny-and-publicity-1.1105219#axzz1E4960X17

New Atlantic Second Cite for Important Post-Koken Delay Damages Case

Here's the new Atlantic Second citation for the important delay damages case recently handed down by the Pennsylvania Superior Court: Marlette v. State Farm Mut. Auto. Ins. Co., 10 A.3d 347 (Pa.Super. 2010 Musmanno, J.).

This case, in which I believe State Farm is in the process of trying to appeal up to the Pennsylvania Supreme Court, stands for the following propositions:

-Delay damages are required to be based upon the jury's verdict in a UM action, and not the verdict as molded downward in post-verdict proceedings to reflect the amount of the policy limits available under the policy;

-A reaffirmation of the rule of law that delay damages are not permissible on loss of consortium damages awards;

-A "high/low agreement" is a settlement agreement in which a defendant agrees to pay a plaintiff a minimum recovery in exchange for the plaintiff's agreement to accept a maximum amount regardless of the outcome of the trial.


The Marlette v. State Farm case may be viewed online by clicking this link:

http://www.aopc.org/OpPosting/Superior/out/A36031_09.pdf

Ciavarella Trial Continues...

Here's a link to the Times Leader's posting of Monday's developments at the Ciavarella Trial. According to the news stories the defense anticipates wrapping its case up today (Tuesday). It is also anticipated that Ciavarella will take the stand in his own defense.

Here's the link: http://www.timesleader.com/news/Judges-former-accountant-testifies-to-income.html

Here's an additional article by Terri Morgan-Besecker from today's Times Leader regarding Judge Kosik's refusal to dismiss some charges after the close of the prosecution's case:

http://www.timesleader.com/news/Judge_denies_motion_to_dismiss_charges_02-14-2011.html

Sunday, February 13, 2011

ARTICLE: SPREAD A LITTLE LOVE




In honor of Valentine's Day, I figured I would re-run this article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly,(c) 2009 Incisive Media US Properties, LLC. :


Spread A Little Love:
Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@comcast.net


The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.

With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff

Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls

It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others

See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.

Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology

Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile

In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies

Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse

Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself

Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.

Source of photo: Image: Salvatore Vuono / FreeDigitalPhotos.net

Friday, February 11, 2011

A Pike County Tip from a Former Pike County Law Clerk (Me)

This is a “heads-up” for your Pike County cases from Tort Talk. As a former law clerk in the Pike County Court of Common Pleas for now Senior Judge Harold A. Thomson, Jr., I like to follow the court's decisions that come out of that county in the very Northeastern corner of Pennsylvania where my career began.

The Pike County Court of Common Pleas has recently issued a number of decisions, including Oliver v. Mazarul, No. 1374-2010-Civil (Pike Co. 2011, Chelak), in which both current Judges, President Judge Joseph Kameen and Judge Gregory Chelak, have indicated that the Pike County Court of Common Pleas has an “established policy of, in general, granting Preliminary Objections to untimely Preliminary Objections.”

The court has noted that Pa. R.C.P. 1026(a) requires Preliminary Objections to be filed within twenty (20) days of the service of a Complaint. When a party files a Preliminary Objections after the deadline, that party bears the burden of demonstrating just cause for the delay in filing the objections. The Court has cited Gale v. Mercy Medical Center, 698 A.2d 647 (Pa. Super. 1997) to support its strict stance on this issue.

Accordingly, if you intend to file Preliminary Objections in Pike County, you better get them filed within twenty (20) days of the Complaint or it will likely be summarily dismissed as untimely unless you can show a just cause for the delay.

Judge Terrence Nealon of Lackawanna County Addresses Corporate Law Issues

I secured a copy of an Opinion issued earlier this week by Lackawanna County Judge Terrence R. Nealon in the case of Sparrow v. Pace/CM, Inc., No. 10 - Civil - 5086 (Lacka. Co., Feb. 7, 2011, Nealon, J.), in which the court addressed, in great detail, the issues and the law surrounding piercing the corporate veil, the alter ego theory, the Contractor & Subcontractor Payment Act, and unjust enrichment.

Also of note is that, on pages 17-24 of the Opinion, Judge Nealon reviews the tort issues surrounding his dismissal of a claim for tortious interference with existing and prospective business relations based upon the "gist of the action" doctrine and the consequent dismissal of the punitive damages claim following the dismissal of the plaintiff's only tort claim.

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

Atty Robert Powell Concludes Testimony At Ciavarella Trial; Prosecution Not Likely to Call Former Judge Conahan

Here's are articles from today's Scranton Times-Tribune and/or Wilkes-Barre's Times Leader by Dave Janoski and/or Michael R. Sisak outlining the remainder of Attorney Robert Powell's testimony and regarding Powell's current status:

http://thetimes-tribune.com/news/powell-says-judges-relentlessly-pursued-him-1.1103478


http://thetimes-tribune.com/news/mired-in-debt-powell-no-longer-a-lawyer-or-wealthy-1.1103331#axzz1Df3eY3Rg


Here's an article from the Times Leader by Michael R. Sisak reporting that the prosecution is apparently electing not to call former Judge Michael Conahan as a witness at the trial:

http://citizensvoice.com/news/conahan-considered-liability-for-prosecution-1.1103280#axzz1Df4Ypi1Q

Thursday, February 10, 2011

Update on Tort Talk Expo 2011 (April 20, 2011 at the Mohegan Sun Casino)

I am pleased to note that Judge Thomas Raup and Judge Thomas Wallitsch of ADR Options, Inc. have agreed to be presenters for the first half of the View from the Bench portion of the Tort Talk Expo 2011 set to take place at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania on April 20, 2011.

Judge Raup and Judge Wallitsch will provide tips on ways to improve your chances for success at Mediation and Arbitration proceedings.

I hope to have the panel of Judges for the second half hour of the View from the Bench portion program in place shortly. I will keep you advised.

I also note that many plaintiff's attorneys, defense attorneys, and insurance claims professionals have already registered for the program. Claims professionals from State Farm, GEICO, Progressive, Erie Insurance, and Farmers Insurance already plan to attend. So this should be a great networking event, particularly at the following Cocktail Reception, for all involved.

A number of table vendor sponsors have also already agreed to attend the seminar to highlight the services they provide to the legal industry. More table vendors are anticipated but here is a list of the companies (in alphabetical order) and their websites that have decided to join us so far:


Courtside Documents: www.courtsidedoc.com


Exhibit A: www.exhibitadigital.com


Digital Justice: www.digitaljustice.net


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


Northeastern Rehabilitation Associates: www.nerehab.com


Last but not least, if you would like to register to attend the Tort Talk Expo 2001 at the Mohegan Sun Casino on April 20, 2011, I have set up a link to the registration form on the upper right hand corner of the blog--just go to www.torttalk.com and click on the link to "Tort Talk Expo 2011 Registration Form."

Atty. Robert Powell Testifies at Ciavarella's Trial

Here are the local news reports from the February 10, 2011 Times Leader by Terrie Morgan-Besecker on the Ciavarella trial outlining the testimony of Attorney Robert Powell and developer Robert Mericle:

http://www.timesleader.com/news/Powell__Ex-jurists_demanded_cash_02-09-2011.html


http://www.timesleader.com/news/_lsquo_Wired_rsquo__note_wake-up_call_for_Mericle_02-09-2011.html


According to an article by reporter Michael Sisak, the Luzerne County Court of Common Pleas will conduct an investigation regarding the actions by other courthouse employees that have been identified during the course of the Ciavarella trial:

http://citizensvoice.com/news/court-will-investigate-employees-ties-to-ex-judges-payoffs-1.1102649#axzz1DZ0XwmKg

Wednesday, February 9, 2011

News Reports from First Day of Ciavarella Trial

Here are links to articles in today's Times Leader out of Wilkes-Barre by reporter Terrie Morgan-Besecker and Mark Guydish.

It appears that the case against former Luzerne County Judge Mark Ciavarella comes down to whether the jury believes the cash payments Ciavarella received amounted to "kickbacks" as alleged by the prosecution or a "finder's fee" as alleged by the defense.

Here are the links:

http://www.timesleader.com/news/Case_foundations_laid_out_02-09-2011.html


http://www.timesleader.com/news/Ex-commissioner_testifies_02-09-2011.html


The testimony continues today. I also thank Matt Keris, Esquire of the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for the tip that a reporter for the Citizen’s Voice is providing constant updates via Twitter at http://twitter.com/cvmikesisak if you would like to follow, or get periodic updates during the day.

Tuesday, February 8, 2011

Novel Issue on Insurance Policy Mandated IMEs Addressed in Erie County

In a January 28, 2011 Order issued in the case of Erie Ins. Exchange v. Greentree, No. 90034 - Civil -10 (Erie Co. Jan. 28, 2011, Connelly, J.), Judge Shad Connelly of the Erie County Court of Common Pleas compelled an Erie insured to attend an independent medical examination (IME) over the insured's objection.

By way of background, this matter involved a First Party medical claim under the old No-fault Act, which required payment of lifetime medical treatment so long as the treatment was reasonably related to the accident. Erie Insurance sought an IME to investigate need for further treatment (over 30 years since the accident.) The insured refused, and Erie filed the motion to compel an IME at issue.

The Court granted Erie's motion and held that as long as the request made by Erie Insurance under a policy provision requiring an insured to attend an IME is reasonable, such policy provision is enforceable and trumps any language in the old No-Fault Act that required an insurer to meet a more demanding burden of proof.

In its Order, the Erie County Court of Common Pleas also followed the recent U.S. Eastern District Court of Pennsylvania decision in Williams v. Allstate Ins. Co., 595 F.Supp.2d 532 (E.D.Pa. 2009), which held that IME policy provisions also take precedence over any language in the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to the burden of proof on a carrier before setting up an IME (i.e. Section 1796 requires the carrier to file a petition to the court and show "good cause" for the issuance of an Order compelling attendance at an IME).

In the Williams case, the Eastern District of Pennsylvania court noted that, as of the time of its 2009 decision the Pennsylvania Supreme Court had not address the conflicting interplay between insurance policy language allowing carriers to order IMEs as often as the carrier may reasonably require and the mandates of Section 1796 of the MVFRL. The Williams court predicted that, if faced with the issue, "the Pennsylvania Supreme Court would find that a contractual provision, which requires an insured to submit to reasonable medical examinations as a condition precedent to insurance coverage is enforceable, notwithstanding section 1796 of the MVFRL." Id. at p. 545.

I note that the Erie County decision is by Order only. Anyone desiring a copy of the Order may contact me at dancummins@comcast.net.

More Recent Post-Koken Trial Court Decisions

Lebanon County's First Appearance on the Post-Koken Scorecard

Judge Bradford H. Charles of the Lebanon Court of Common Pleas recently issued an Order of January 24, 2011 in the case of Dunkelberger v. Erie Insurance Company, No. 2010-Civil-01956 (Leb. Co. Jan. 24, 2011, Charles, J.), outlining how post-Koken consolidated claims for UIM benefits and bad faith damages are to be handled in that county.

Judge Charles granted the Motion of Erie Insurance Company for an Emergency Protective Order and Stay in terms of any discovery requested by the Plaintiff on the bad faith claim.

Judge Charles also ruled that the Plaintiff’s UIM claim was to be severed from the bad faith claim. The court ruled in Dunkelberger that “[d]iscovery, motions practice, and trial regarding the bad faith component of Plaintiff’s litigation shall only commence after a finally verdict with respect to Plaintiff’s underlying Complaint seeking underinsurance motorist damages.”

The prevailing defense attorney in this matter was Attorney John Statler of the Lemoyne, Pennsylvania law firm of Johnson, Duffy, Stewart & Weidner.

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


Another Philadelphia County Decision

Philadelphia County Court of Common Pleas Judge Alan L. Tereshko has again weighed in on the post-Koken issue of consolidation of claims and proper venue in the case of Gollinge-Motroni v. Machado and Allstate Ins. Co., October Term 2010 No. 002528 (Phila. Co. Jan. 14, 2011, Tereshko, J.).

This matter involved a motor vehicle accident that occurred in Lehigh County. According to the information I received, the parties, witnesses, and treating physicians either resided or worked in Lehigh County.

However, the Plaintiff filed suit in Philadelphia County against the tortfeasor and her own insurance carrier for UIM benefits. The Plaintiff apparently filed the case in Philadelphia County on basis of the fact that the insurer engaged in business in Philadelphia County.

The tortfeasor Defendant filed Preliminary Objections requesting that the claims be severed. The tortfeasor Defendant also filed a Motion for Change of Venue based upon the doctrine of forum non conveniens.

The UIM carrier Defendant filed similar preliminary objections.

Judge Tereshko first entered an Order transferring venue and then sustained Preliminary Objections severing the claims.

The prevailing attorney for the tortfeasor Defendant was Attorney Salvatore Vilardi of the Blue Bell, Pennsylvania office of Cipriani and Werner. The prevailing attorney for the UIM carrier was Kevin McNulty of Gerolamo, McNulty, Divis & Lewbart in Philadelphia.

Any one desiring a copy of these Orders may contact me at dancummins@comcast.net

Jury Selected in Ciavarella Trial - Testimony Starts Today

Here's a link to a Scranton Times-Tribune article from today's paper by reporter Dave Janoski regarding the selection of the jury yesterday at the first day of the Ciavarella trial:

http://thetimes-tribune.com/news/ciavarella-jury-chosen-1.1101593#axzz1DNLj9OZ6


Here's an article from today's Wilkes-Barre's Citizen's Voice by Michael R. Sisak reporting on Judge Kosik's demeanor during the first day of trial. Judge Kosik moved the matter along and a jury was selected in a single day--and to think that some speculated that it would take a week to select a jury!:

http://citizensvoice.com/news/a-stern-kosik-moves-selection-along-1.1101427#axzz1DNMVDjMY

Sunday, February 6, 2011

Judge Terrence Nealon Addresses Enforceability of Indemnification Clause in a Lease Agreement

In an Opinion handed down on February 3, 2011 in the case of Pringle v. Keymall, Inc., No. 04 - Civil - 759 (Lacka. Co. Feb. 3, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas case entered summary judgment in favor of an additional defendant in a case involving contractual indemnity of an owner/landlord by the tenant for a personal injury claim filed by the tenant's employee against the owner/landlord. In so ruling, the court reviewed the law on the special language that is required in the indemnification clause for such indemnity to exist and found that the language used in the lease at issue did not meet the requirements of the law.

By way of background, the plaintiff filed a Complaint alleging that he slipped and fell on water while coming down a staircase at his place of employment. At the time of the fall, the plaintiff's employer leased the second floor of the building from the owner/lessor, Keymall.

The Plaintiff filed suit against Keymall only. Keymall joined the plaintiff's employer as an additional defendant. In its Additional Defendant Complaint, Keymall asserted that the plaintiff's employer was "required to contractually indemnify Keymall, Inc. for any and all sums of money that may be required to be paid to the Plaintiff by Keymall, Inc. and which liability is specifically denied.”

Judge Nealon noted that, ordinarily, employers are not liable to injured employees in negligence actions. The law also holds that a third party tortfeasor may not seek indemnity from an employer unless there was an express provision for indemnity set forth in a contract between the parties.

The court then applied the law pertaining to the requisite language necessary to make such an indemnity clause enforceable and found that such requirements were not met in this matter. As such, summary judgment was granted in favor of the injured party's employer who had been joined as an Additional Defendant in this matter.

Anyone desiring a copy of this Opinion by Judge Nealon, which includes a recitation of the indemnity language found to be insufficient under the law, may contact me at dancummins@comcast.net.

The Alleged Case Against Ciavarella

Former Luzerne County Judge Mark Ciavarella's trial starts on Monday Februrary 7, 2011. Here's a link to a February 6th Times Leader article by Terrie Morgan-Besecker outlining the alleged case against him:

http://www.timesleader.com/news/It_rsquo_s_been_two_years_and_12_days_si_02-06-2011.html

Friday, February 4, 2011

Upcoming Pennsylvania Defense Institute CLE Seminar

The Pennsylvania Defense Institute is offering a new 3 CLE credit program this year entitled “Perspectives on Women in the Law: An Insurance Defense Symposium” on March 24 at the Hollywood Casino at Penn National Race Course near Harrisburg.



“PERSPECTIVES ON WOMEN IN THE LAW:
AN INSURANCE DEFENSE SYMPOSIUM”

MARCH 24, 2011
HOLLYWOOD CASINO AT
PENN NATIONAL RACE COURSE


PDI proudly presents “Perspectives on Women in the Law: An Insurance Defense Symposium” for women lawyers to hear from other successful women lawyers from the bench, private practice, and from the insurance industry. Women lawyers face unique challenges, particularly in the insurance defense industry. This program is educational and enriching, geared to your practice as women defense lawyers. It is also an opportunity to network with others in your profession. And it is fun, too, with all the amenities of the Hollywood Casino!

Reasons to attend: Get perspectives from successful women on the bench, in private practice, and in the insurance industry while earning 3 CLE credits. Meet and network with other female lawyers from across Pennsylvania.

The agenda:

8:15-9:00 Registration and Continental Breakfast

9:00-9:45 View from the Bench – Women in the Judicial System
Honorable Justice Joan Orie Melvin, Pennsylvania Supreme Court

9:45-10:00 Break

10:00-10:45 View from the Bar – A Managing Partner’s Perspective
Marie Milie Jones, Esquire
Meyer, Darragh, Buckler, Bebenek & Eck
Pittsburgh, Pennsylvania

10:45-11:00 Break

11:00-12:30 View from the Industry – Women in Insurance (Panel Discussion)

Karen Yarrish, Vice President, Secretary & General Counsel
Penn National Insurance
Beth Persun, Director of Claim Administration, MCare Fund
Angela Pinker, Director of Commercial Lines Underwriting,
Nationwide Insurance
Lisa Katterman, Associate Counsel & Director, Government
Relations, Penn National Insurance

12:30-1:30 Lunch

REGISTRATION FORM


PERSPECTIVES ON WOMEN IN THE LAW:
AN INSURANCE DEFENSE SYMPOSIUM


March 24, 2011
Hollywood Casino at
Penn National Race Course
777 Hollywood Boulevard
Grantville, PA 17028


CLE Program, Continental Breakfast and Lunch: $100.00

Name(s)_____________________________________

Firm/Company________________________________


Make checks payable to:
PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697



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Trial of Former Luzerne County Judge Ciavarella Set to Begin Next Week

Here's a link to a Scranton Times Tribune article by Dave Janoski providing a preview of the testimony expected at the trial of former Luzerne County Judge, Mark A. Ciavaella. The article notes that it is expected that Attorney Robert Powell and former Judge Michael Conahan will be called as witnesses.

Here's the link:

http://thetimes-tribune.com/news/feds-say-mericle-testimony-will-admit-gifts-cash-to-ciavarella-1.1099945

Summary Judgment Entered in Monroe County Limited Tort Case

On February 2, 2011, Judge Linda Wallach Miller of the Monroe County Court of Common Pleas entered a summary judgment in favor of the Defendants in the limited tort case of Stout v. Deleo, No. 970 - Civil - 2007 (Monroe Co. 2011, Miller, J.).

Judge Miller's Opinion provides a thorough review of both the history and the requisite analysis of the serious injury threshold of the limited tort alternative.

The Stout case involved a plaintiff who lost control of his vehicle on an icy roadway and was just coming to a stop when his vehicle was struck from the rear by another driver of another vehicle that had lost control on the ice. The plaintiff alleged injuries to his shoulder, neck, and back. He also noted symptoms down his right arm.

The court noted that the Plaintiff did not go to the emergency room and did not begin to treat until he visited his family doctor until a few days after the accident. According to the Opinion, the treatment thereafter was minimal and the plaintiff only took over-the-counter Motrin on occasion for his symptoms. Judge Miller also noted that the plaintiff only missed three shifts of work as a police officer but was otherwise able to complete his job duties after the accident.

The court was unimpressed with the plaintiff's claims of limitations in his ability to complete recreational activities and his claims of sleep disturbance from his ongoing pain symptoms. In the end, summary judgment was entered and the case was dismissed.

The prevailing defense attorney was Shawna McLaughlin of the Moosic, Pennsylvania Travelers Insurance in-house law firm of Thomas Kelley & Associates.

I thank Attorney Carmina Rinkunas of the Moosic, Pennsylvania Travelers Insurance in-house counsel office of Thomas Kelley & Associates.

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

Thursday, February 3, 2011

Amicus Briefs Filed for Pennsylvania Defense Institute in Two Separate Post-Koken Venue Cases

I recently filed an Amicus Brief on behalf of the Pennsylvania Defense Institute in two separate matters appealed up to the Pennsylvania Superior Court, Wissinger v. Brady out of Luzerne County and Sehl v. Neff out of Philadelphia County.

Both of of these appeals revolved around the same central issue of the proper venue for post-Koken motor vehicle accident cases in which negligence claims against the defendant driver are joined with claims against the underinsured (UIM) motorist carrier defendant.


In each Brief, I joined the appellee-tortfeasor defendant in an argument against the injured party's contention that such claims could be filed in any county because the UIM insurance company conducted business in all counties of the Commonwealth.


No argument date has been set yet in either matter.


Should you wish to review the Amicus Briefs filed (perhaps they will help you in your research efforts if you are faced with a similar issue), please scroll down the right hand column of this blog to the label "My Published Articles" and locate the two briefs inside the JDSupra.com box. Once you click on the title of the briefs there it should take you to the online site where you should be able to review and/or print out the Briefs.

Again, the Briefs are essentially identical and I believe the Brief in Sehl, which was the second one I did, came out in a more focused, tighter fashion in terms of the legal argument. That would be the one I would suggest you review if you are interested.


Last but not least, I highly recommend that you consider signing up to use JDSupra.com. It's a free, easy-to-set-up-and-use online portal for you to display your written legal work to the public. It's a great way to increase your online exposure and allow potential clients to view your work product in other matters, whether it be articles or briefs. Here's a link to the site: www.jdsupra.com.

New A.3d Cite for Important Medicare Case

Zaleppa v. Seiwell, 9 A.3d 632 (Pa.Super. 2010)(MSPA did not allow private entity to assert rights of government regarding potential claim for reimbursement of Medicare lien.).

Here's a link to the November 19, 2010Tort Talk posting on this case:

http://www.torttalk.com/2010/11/new-superior-court-case-regarding.html

Commonwealth Court Addresses Liability of PennDOT for Lack of Rumble Strips

On January 19, 2011, the Pennsylvania Commonwealth Court issued an Opinion in the case of Brown v. PennDOT et al., No. 1298 C.D. 2010 (Pa.Cmwlth. 2011, Leadbetter, P.J., McCullough, J., Friedman, S.J.)(Opinion by Friedman, S.J.), in which the Court addressed the issue of sovereign immunity for PennDOT in an automobile accident case in which there were allegations that PennDOT was liable for failing to implant rumble strips along a curved portion of the roadway where the injured party left the road and was involved in an accident.

The case is noteworthy in that the Commonwealth Court agreed with the Plaintiff's position that rumble strips, where they have been installed, must be considered part of the road.

However, in favor of PennDOT, the Court also found that where, as in this case, rumble strips have not been installed, the absence of rumble strips does not create a defect of the highway, and DOT has no duty to install them.

This case is therefore good for plaintiffs who argue that installed rumble strips are defective. The case is also good for PennDOT in that it was upheld that there is no duty on the part of PennDOT to install rumble strips.

Here is a link to the Brown Opinion online:

http://www.aopc.org/OpPosting/Cwealth/out/1298CD10_1-19-11.pdf


This Brown decision can be read in conjunction with the Commonwealth Court's recent decision in the case of Lambert v. Katz on the liability of PennDOT for conditions on highways. In Lambert the Commonwealth Court held, in a slip opinion, that the lack of a shoulder does not render a highway unsafe for travel, i.e., condition of shoulder does not constitute a dangerous condition of highway.

Here's a link to the recent Tort Talk write-up on the Lambert case:

http://www.torttalk.com/2010/11/penndot-not-liable-for-shoulder-of.html


I thank Attorney Scott Schermerhorn of Scranton, PA for bringing the Brown case to my attention.

Tuesday, February 1, 2011

ARTICLE: Are the Winds of Hurricane Koken Dying Down?

The following article of mine appeared last week in the January 25, 2011 edition of The Pennsylvania Law Weekly. (c) 2010 Incisive Media US Properties, LLC.


Insurance Law

Are the Winds of Hurricane Koken Dying Down?
Superior Court touches on consolidation verse severance issue in post-Koken cases


by

Daniel E. Cummins
The Legal Intelligencer/Pennsylvania Law Weekly
January 25, 2011



As previously analyzed in this column, the new era of automobile accident litigation, dubbed "Hurricane Koken " due to the turbulent and uncertain path of the law and procedure in this regard, has continued to be guided by a split of authority among the various common pleas courts across Pennsylvania on how to properly handle such claims.

Now, with the Superior Court's Jan. 6 decision in Richner v. McCance , the sun appears to be peaking from behind the clouds.

The Superior Court specifically and emphatically stated in Richner that they were not in any way addressing the consolidation vs. severance issue found in the typical post- Koken case combining a tort claim and a UIM claim in a single lawsuit. Yet, the court's analysis of the issue in the context of a tort claim, combined with a request for declaratory judgment against the UIM carrier on a coverage question, sheds light on how the Superior Court may address the issue in the tort/UIM benefits claim scenarios in the future.

Origin of The Issue

A review of the history of post- Koken jurisprudence reveals that it has been about five years since the automobile accident litigation landscape was changed by a 2005 state Supreme Court case, Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken).

In Koken , the high court ruled for the first time that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of disputed uninsured and underinsured motorist benefits claims. Accordingly, many carriers promptly rid their policies of the arbitration clauses, thereby requiring UM/UIM claims to instead be litigated as a typical automobile accident lawsuit in the common pleas court.

Following the basic rule that all matters arising out of a single occurrence, i.e., a motor vehicle accident, should be litigated in one matter, practitioners began to file lawsuits that combined the tort claim against the allegedly negligent driver with the contractual claim against the plaintiff's insurance carrier for UIM benefits in one lawsuit under a single caption.

The tortfeasor defendants in these matters found these new lawsuits objectionable, because it put them in the tough spot of having to go to a jury trial with an insurance company as a co-defendant.

In some cases, the insurance companies have objected to this new form of lawsuit, particularly when they were lumped in the same cases with a tortfeasor who was driving under the influence of drugs or alcohol and who, therefore, faced a claim for punitive damages.

As a result, one of the first issues that repeatedly came to the attention of the trial courts, typically by way of preliminary objections, was whether these new lawsuits should be allowed to proceed in a consolidated fashion.

Current Majority Rule

Presently, there are at least 34 trial court decisions from across the state in which the courts have ruled, or suggested they would rule, in favor of keeping these claims together under one caption and proceeding to a jury trial in a consolidated fashion. This is the majority rule so far among trial court decisions.

These initial decisions were handed down in Lackawanna, Luzerne, Pike, Lehigh, Northampton, Montgomery Dauphin, Clinton, Beaver, Erie, Lawrence, Allegheny, Philadelphia and Cambria counties.

The consistent rationale of these consolidation decisions is that the tort claims against the defendant motorist and the contractual claim for UIM benefits against the insurance company arise out of the same "transaction or occurrence," i.e., the same motor vehicle accident. Therefore, the courts have ruled, these claims should be tried together as a means of furthering the interests of judicial economy for the already overburdened trial court system.

Another factor noted is the avoidance of piecemeal litigation with the possibility of inconsistent verdicts.

Some of the trial court decisions in favor of consolidating post- Koken claims have referenced the permissive joinder of actions provision found in the Pa.R.C.P. 2229. Other courts have relied upon Pa.R.C.P. 213(a), which allows for the consolidation of actions arising out of the same occurrence.

Minority Rule

There are currently at least 20 trial court decisions from around Pennsylvania that have held post- Koken claims filed under a single caption should be severed into two separate lawsuits.

These decisions have come from Lackawanna, Butler, Washington, York, Adams, Lancaster, Schuylkill, Delaware, Montgomery, Mercer, Philadelphia and Allegheny counties.

A comparison of the lists of trial court decisions in favor of severance with the above list of those cases in favor of consolidation show some overlap, arguably revealing a split of authority on the issue even within certain counties, such as Lackawanna, Montgomery, Philadelphia and Allegheny.

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

In light of these rules, the courts favoring severance have held that a third party tortfeasor defendant may be unduly prejudiced by having the insurance company as a co-defendant in front of a jury.

Some of the courts in favor of severance have also noted that the act of severing and staying the UM/UIM claim pending the resolution of the third party liability claim may further the interest of judicial economy. This is particularly so in the event that a jury comes back with a verdict that is below the tortfeasor's liability limits, which would negate any UIM claim. In such cases, there would have been no need to include the UIM carrier in the litigation in the first place.

To date, there have been no appellate decisions to alleviate this split of authority.

Some Guidance

Then, along comes Richner.

The Allegheny County Court of Common Pleas ruled in Richner that the third party claim against the defendant driver and the separate declaratory judgment action on a UIM coverage issue should be allowed to proceed in a consolidated fashion. The trial court did leave the door open to bifurcate the case at time of trial, if necessary.

The Richner decision was appealed and, on Jan. 6, 2010, the Superior Court issued a decision reversing the trial court's ruling and held, instead, that the injured party could not join his tort claim with a count in the complaint for a declaratory judgment raising the coverage question surrounding the applicability of an exclusion in the UIM carrier's policy.

Interestingly, the Superior Court applied Pa.R.C.P. 2229(b), which pertains to the permissible joinder of actions, and found that the requirements of that rule were not met to allow for a joinder of a tort claim with a declaratory judgment action on a coverage question.

More specifically, the court found that, although the tort allegations and the contractual question pertaining to coverage both essentially arose out of the same car accident, the liabilities of the respective defendants arose from different circumstances, i.e., one in tort and the other in contract law.

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

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

In that same footnote, the Superior Court also stated:

"We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post-Koken UIM benefit claims."

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

As such, the Superior Court's decision in Richner appears to be a must-read for practitioners handling post- Koken automobile litigation matters.

On the Horizon

On a related note, while the Superior Court has not squarely addressed the consolidation vs. severance issue in a true post-Koken case to date, the court is poised to tackle another important post- Koken issue pertaining to the proper venue for these types of actions.

The Luzerne County Common Pleas Court case W issinger v. Brady and the Philadelphia Common Pleas Court case Sehl v. Neff are both in the briefing phase at the Superior Court. They are still awaiting argument dates.

The central issue in each of those cases involves proper venue for post- Koken litigation.

The trial courts in each case rejected the plaintiffs' contentions that such lawsuits can be filed in any county across Pennsylvania, regardless of where the accident happened or where the tortfeasor defendant resided, based on the fact that the insurance carriers in those cases conduct business in every county.

It remains to be seen whether the trial court decisions in these cases will be upheld. One thing is for sure — the venue issue is in a position to be finally clarified by the appellate courts. Unfortunately, the consolidation vs. severance question is not raised in either the Wissinger or the Sehl appeals.

Further guidance on that issue will have to await another day.  


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com.

Pennsylvania Supreme Court: Heart and Lung Benefits Not Subrogable

On January 28, 2011, the Pennsylvania Supreme Court issued a unanimous decision in the case of Oliver v. City of Pittsburgh, 2011 WL 255614 (Pa. 2011), in which it concluded that Heart and Lung Benefits are not subrogable in motor vehicle accident matters under Pennsylvania law.

The case involved a police officer who was injured in a car accident in 1996. The City of Pittsburgh argued that it was entitled to subrogation because the repeal of 75 Pa.C.S.A. 1720 in 1994 by Act 44 Section 25(b) allowed for subrogation in workers compensation matters. The City asserted that Heart and Lung benefits were a form of workers compensation.

In rejecting the City's argument, the Supreme Court opinion by Justice Saylor relied upon the plain language of Section 25(b) of Act 44, which repealed the anti-subrogation provision as it relates to "workers' compensation payment or other benefits under the Workers' Compensation Act."

Given the lack of any ambiguity in the language of the statute, the Court held that "Section 25(b) repealed Sections 1720 of the MVFRL 'insofar as [it] relate[d] to workers' compensation payments or other benefits under the Workers' Compensation Act .... By its plain terms, such provision does not impact any anti-subrogation mandates pertaining to HLA benefits."

Here is a link to the Opinion: http://www.pacourts.us/OpPosting/Supreme/out/J-73-2010mo.pdf

Judge Terrence Nealon of Lackawanna County Weighs in on Zero Verdict Issue

In his Opinion handed down on January 28, 2011, in the case of Bulger v. Pennsylvania American Water Company, No. 07 CV 236 (Lacka. Co. 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas weighed in on the somewhat recurring issue of the propriety of a jury entering a zero defense verdicts in negligence cases where both the defense expert and the plaintiff's expert agree that the plaintiff sustained some form of injury.

Some attorneys out there (like myself) may have previously been under the misconception that once a defense IME doctor agrees that the plaintiff has indeed sustained some form of injury, the jury must give some award in favor of the injured party. Not so fast.

By way of background, the Standard Jury Instructions were revised a few years ago to change the causation inquiry on verdict slips to now read whether the defendant's negligence was "a factual cause of the plaintiff's harm" (rather than the factual cause of the "accident" or "fall").

Since that time, in cases where the defense medical expert acknowledges some form of injury, plaintiff's counsel would routinely object to a factual cause inquiry or finding even though the cause of the accident or fall was hotly contested by the defense at trial.

In Bulger, Judge Nealon was faced with this very issue as presented by the plaintiff in in post-trial motions.

In Bulger, Defendant Pennsylvania American Water Company denied that it was liable for the plaintiff's trip and fall event on a residential street. On the liability issues, evidence was offered that not only called the plaintiff's credibility into question but which also showed that the plaintiff had pre-existing medical conditions that left him with blurred vision and even balance issues. It was also established that the plaintiff's incident happened under dark conditions. The Defendant additionally disputed the allegation that it had actual or constructive notice of the the allegedly dangerous condition at issue.

At the conclusion of the presentation of the evidence, the plaintiff's request for a directed verdict on the grounds that the medical experts agreed on an injury or injuries as well as the plaintiff's objections to the verdict slip were all overruled.

The jury went on to enter a defense verdict despite the agreement of the medical experts that the plaintiff sustained some form of injury.

In addressing the plaintiff's post-trial motions, Judge Nealon held that notwithstanding the "harm" wording of the Standard Jury Instructions' causation question, under the current status of Pennsylvania law, the jury was still required decide whether or not the defendant's negligence was the factual cause of the accident/fall as part of its causation analysis and determination. The court ultimately denied the plaintiff's motion for a new trial on this issue.

Judge Nealon's opinion in Bulger provides a nice analysis on the issue and confirms that, where the liability question remains in dispute at trial, the defense can still pursue a defense verdict even where the defense medical expert confirms all or part of the plaintiff's claims of injury.


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