Tuesday, May 31, 2011

SAVE THE DATE - AUGUST 24, 2011 - CLE SEMINAR

Below is an advertisement for a CLE seminar that I am helping to put together and that I will be speaking at on August 24, 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvnia.  My topic will be "Claims Rep Pet Peeves."  I will analyze common pet peeves of claims representatives and offer tips on how to prevent them from happening.  I will be assisted in the presentation by one, possibly two, claims reps.



THE PENNSYLVANIA DEFENSE INSTITUTE

and

THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

Proudly Present a Continuing Legal Education Program On



“CIVIL LITIGATION DEVELOPMENTS 2011”

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Wednesday August 24, 2010

12:30 p.m. to 4:30 p.m.

Followed by Cocktail Hour (4:30 – 6:30 p.m.) at Breakers in the Mohegan Sun


2 Substantive & 1 Ethics CLE Credits



12:30 – 1:00 PM Registration

1:00 – 2:00 PM “TRIAL TIPS FROM THE LEGENDS”

John J. Aponick, Jr., Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Thomas J. Foley, Jr., Esq. – Foley, McLane, Foley, McDonald & MacGregor, P.C.

James F. Mundy, Esq. – Powell Law Office

Moderator: Paul T. Oven, Esquire – Dougherty, Leventhal & Price



2:00 – 2:15 PM Break



2:15 – 2:45 PM “SOCIAL MEDIA DISCOVERY”

Melissa A. Scartelli, Esq. – Scartelli, Distasio & Kowalski, P.C.

Alicia C. Schweyer, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin



2:45 – 3:15 PM “CLAIMS REP PET PEEVES”

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins

Erin Rowan Meyers, Esq. – Claims Manager, Catholic Health Partners



3:15 – 3:30 PM Break
3:30 – 4:30 PM “ETHICAL PRACTICE POINTERS FROM THE BENCH

Judge Correale F. Stevens – President Judge of Pennsylvania Superior Court

Judge Thomas Blewitt – Middle District Federal Magistrate Judge

Judge Robert A. Mazzoni – Lackawanna County Court of Common Pleas Judge

Moderator: Matt Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin


 


Course Planners:

Matthew P. Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins


The program will be immediately followed by an open bar reception at Breakers in the Mohegan Sun Casino honoring John J. Aponick, Jr. and Thomas J. Foley, Jr. for 50 years in the practice of law.



Costs for the CLE/Happy Hour:

• Program for claim representatives/risk managers $25.00

• Program for paralegals $50.00

• CLE program for lawyers $175.00



For reservations, please print and complete the form below and return to PDI or e-mail it to coled01@padefense.org.



Name(s)________________________________________

_______________________________________________



Firm/Company___________________________________

________________________________________________



Address_______________________________________


_____________________________________________



Make checks payable to:

PENNSYLVANIA DEFENSE INSTITUTE

P.O. Box 697, Camp Hill, PA 17001-0697

For more information, contact PDI at 800-734-0737

ARTICLE: The Weathermen of Hurricane Koken

Here's a reprint of my article that appeared in last week's May 24, 2011 Pennsylvania Law Weekly:


The Weathermen of Hurricane Koken

Daniel E. Cummins
The Legal Intelligencer/Pennsylvania Law Weekly
May 24, 2011

Like a Weather Channel weatherman leaning into driving rain and gale force winds while trying to hold onto his microphone and baseball cap and report on the center of a storm, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas faced the swirling winds of change brought on by Hurricane Koken and, in doing so, brought more clarity to the issue of proper venue in post-Koken cases as well as the issue of whether the claims in these cases should proceed in a consolidated fashion or be severed.

In his April 8 decision in the case of Bingham v. Poswistilo, Nealon issued the most thorough trial court opinion to date on the question of consolidation versus severance of third-party claims and UIM claims in post- Koken Matters.

I note that, in his opinion, Nealon actually cited to my blog, Tort Talk (www.torttalk.com), and its compilation of relevant cases in the Post- Koken Scorecard, as being part of his research on the issues presented.

Judicial Economy Compels Consolidation

In his opinion in Bingham, Nealon noted that, although the Pennsylvania Superior Court came close to addressing the consolidation versus severance issue in the 2011 case of Richner v. McCance, that court addressed a similar issue but did not render a decision on the question presented. As such, there was still no appellate guidance on this recurring question of procedure in post- Koken cases.

After reviewing the essentially even split of authority on the issue across the county courts in Pennsylvania and even the split of authority on the issue that exists within his own county of Lackawanna, Nealon held in Bingham that tort and UIM claims can be joined under Pennsylvania Rule of Civil Procedure 2229(b), pertaining to joinder of claims.

Nealon ruled in favor of consolidation under Rule 2229(b) primarily because (1) both claims arise out of the same occurrence, and (2) both claims involve common questions of fact or law affecting the liabilities of the tortfeasor and UIM insurer.

In so ruling, Nealon also emphasized that Rule 2229(b) does not require the tortfeasor and UIM carrier to be jointly and severally liable in order to be joined in a single lawsuit. Rather, he noted that Rule 2229(b) uses the disjunctive "or" in the phrase "right to relief jointly, severally, separately or in the alternative...." [Emphasis added here]. As such, the fact that the court found the third party tortfeasor and the UIM carriers were not joint tortfeasors did not preclude the joinder of these claims under one caption.

In Bingham, Nealon also raised and reviewed the predicament that allowing for the joinder of these claims may ultimately bring evidence of "insurance" before the jury in violation of Pa.R.E. 411 prohibition against the introduction of such evidence in civil jury trials.

Nealon provided a thorough analysis of how the evidentiary issue has been discussed and handled by other courts, both in the Commonwealth of Pennsylvania and in other jurisdictions. He reviewed the different approaches adopted by other states such as trying the case as a tort case with the UIM insurer removed from the caption, but bound by the verdict. Another possible trial method involved allowing the UIM insurance to be mentioned, but not on the issue of whether the tortfeasor "acted negligently or otherwise wrongfully."

In the opinion, Nealon noted that yet another trial procedure considered was to allow the evidence of insurance to come before the jury under the exception to the rule that allows the jury to consider evidence of insurance when it is being "offered for another purpose" as permitted by Rule 411. In this regard, one possible other purpose for allowing evidence of insurance is not to show that the tortfeasor was insured, but rather to inform and explain to the jury why the UIM carrier was also involved in the trial.

Wisely showing judicial restraint, Nealon noted that he was only faced with preliminary objections to decide and not any evidentiary issues for trial. Accordingly, Nealon decided that it should be the trial judge who could later revisit the issue of the introduction of evidence of insurance closer to the time of trial and determine again, at that time, whether or not the cases should remain consolidated for trial purposes or be severed to avoid the mentioning of "insurance" at trial.

At the preliminary objections stage of the matter before him, Nealon concluded that the better approach was to leave the cases consolidated for at least discovery purposes as a matter of judicial economy and to lessen the burden and expenses on the parties and the court.

Improper Venue Compels Severance

While Nealon ruled that the claims in Bingham could be consolidated under one caption, he ultimately ruled that the cases should be severed under the venue issue presented in the case.

The Bingham case, which was filed in Lackawanna County, involved a motor vehicle accident that occurred in Lehigh County. The tortfeasors were not residents of Lackawanna County and could not be served in Lackawanna County.

However, the plaintiff filed the complaint in Lackawanna County on account of the fact that the plaintiff's UIM policy with Erie Insurance Exchange had a forum selection clause that required the lawsuit to be pursued in the county of the insured's domicile or residence. At the time, the plaintiff resided in Lackawanna County.

Nealon noted that Erie's forum selection clause had been previously upheld as valid by the Pennsylvania Superior Court in the separate case of O'Hara v. First Liberty Ins. Corp. , 984 A.2d 938 (Pa.Super. 2009) appeal denied, 995 A.2d 354 (Pa. 2010).

The plaintiff in Bingham argued that all of the claims could be pursued in Lackawanna County under the venue Rule of Civil Procedure 1006(c)(1) which essentially provides that, where venue was good for one of the defendants, it should be good for all the defendants and the other defendants could therefore be brought to suit in that same county.

However, Nealon emphasized that Pa.R.C.P. 1006(c)(1) only applies in actions "to enforce a joint or joint and several liability." Nealon ruled that, in the context of this post- Koken scenario, since the UIM insurer could never be responsible for the full amount of the jury award, it could not be considered to ever be potentially jointly and severally liable with the tortfeasor(s).

Accordingly, Nealon sustained the venue preliminary objection asserted by the tortfeasor defendants, severed the tort and UIM claims, and transferred the tort action only to Lehigh County and kept the UIM claim in Lackawanna County as per the forum selection clause found in the Erie insurance policy.

An Open Issue Answered

At the end of his opinion, Nealon went on to note that the court took no position as to whether the plaintiff, with the severance of the claims mandated by this decision, may thereafter attempt to reunite his UIM claim in Lackawanna County with the tort claims in Lehigh County pursuant to the different standards applicable under Pa.R.C.P. 213.1(a) and (c), pertaining to "coordination of actions in separate counties."

On the heels of Nealon's opinion, Luzerne County Common Pleas Court Judge Joseph Van Jura coincidentally addressed that very issue of coordination of post- Koken claims in the April 12 opinion in Orsulak v. Penn National Mutual Casualty Insurance Co.

In Orsulak, Van Jura addressed the various factors to be considered on a motion for coordination/petition to transfer venue that was filed by a UIM carrier under Pa. R.C.P. 213.1.

Under Pa. R.C.P. 213.1(a), it is provided that "in actions pending in different counties which involve a common question of law or fact or which arise from the same transactions or occurrence, any party, with notice to all other parties, may file a motion requesting the court in which a complaint was first filed to order coordination of the actions. Any party may file an answer to the motion and the court may hold a hearing."

Pennsylvania Rule of Civil Procedure 213.1(c) sets forth at least six (6) factors to be used by the court in determining whether to order coordination and to determine which location is appropriate for the coordinated proceedings.

Among the factors to be considered are the question of whether the separate cases involve common questions of fact or law, the convenience to the parties, counsel, and witnesses that a coordination may bring, the goals of judicial economy, and the likelihood of settlement of the actions without further litigation should coordination be denied.

Van Jura noted that the primary "basis for the rule is the avoidance of multiple trials and proceedings in these separate actions and the resultant economy to both the parties and the judicial system."

In addition to reviewing the factors noted under Rule 213.1, Van Jura also noted guidance from the explanatory comment to the rule "which explains that the ultimate determination that the court must make is whether coordination is 'a fair and efficient method of adjudicating the controversy.'"

In Orsulak, the plaintiffs' claims arose from a motor vehicle accident that occurred in Monroe County. The plaintiffs filed a writ of summons in Monroe County against the tortfeasors only.

The case in Monroe County sat dormant with a writ only filed while the plaintiffs attempted to resolve their separate but related claims with a worker's compensation carrier and with Penn National Insurance Company as the UIM carrier.

When the claims with the UIM carrier and the worker's compensation carrier could not be resolved, the plaintiffs filed a separate complaint in Luzerne County against Penn National as the UIM carrier alleging post- Koken causes of action for breach of contract in not paying UIM benefits under the policy and bad faith.

Thereafter, the UIM carrier filed its motion for coordination/petition to transfer seeking to have the claim filed against it moved from Luzerne County to Monroe County. The carrier argued that the only apparent connection of the UIM claim and Luzerne County was that plaintiff's attorney's office was located in Luzerne County.

After applying the six factors under Rule 213.1(c), along with the guidance from the explanatory comment, Van Jura ruled that the motion for coordination should be granted and that venue of the Luzerne County UIM case should be transferred to Monroe County.

Van Jura noted that Luzerne County had no, or virtually no, connection with, the issues involved, the facts or site of the accident in question, the potential witnesses, or other sources of proof.

Van Jura also noted that the plaintiffs resided in Northampton County and that their residence was less than 33 driving miles from the Monroe County Courthouse, but over 61 driving miles to the Luzerne County Courthouse.

The court was also influenced by the fact that both the Luzerne County case and the Monroe County case were in their seminal stages and that coordination would, therefore, not result in any unreasonable delay, expense, or prejudice to any party in the action. Van Jura additionally pointed to the benefits of judicial economy that would result from a coordination of the actions together in Monroe County, according to the opinion.

Thus, based upon Van Jura's decision in Orsulak it appears that, where a post- Koken claim has been severed into two separate actions and split between two separate counties due to venue issues as in the Bingham case decided by Nealon, the potential exists that the cases could be reunited again thereafter under the coordination of actions in separate counties rule of civil procedure.   •

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.

Judge Terrence Nealon of Lackawanna County Analyzes Regular Use Exclusion

On May 24, 2011, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision in the case of Erie Ins. Exchange v. Soroka, No. 09 - CV - 1056 (Lacka. Co. May 24, 2011, Nealon, J.) which involved the UIM coverage exclusion for non-owned, regularly used vehicles.

In Erie Ins. Exchange v. Soroka, a partner of a used car dealership partnership was injured while driving one of the dealership's inventory vehicles.  After securing settlements under the tortfeasor's liability policy and the UIM benefits under the dealerships "Garage Form Auto Dealer" policy, the injured party turned to his personal auto insurance policies with Erie Insurance for additional UIM benefits.

Erie had issued a "Family Auto Insurance" policy to the injured party and his wife as well as a "Commercial Auto Insurance" policy to the injured party's wife.

The injured party sought UIM benefits from his personal policies on the grounds that he did not regularly use the particular dealership vehicle that he was operating which was intended for resale to a customer rather than personal use by a partner.
Both of the Erie policies excluded UIM coverage for injuries sustained by an insured while operating “a non-owned motor vehicle…which is regularly used” by the insured, but not expressly insured for UIM coverage under those policies. 

In his Opinion Judge Nealon noted that, in the case of Brinkman v. Erie Insurance Exchange, the Superior Court of Pennsylvania interpreted the “regularly used” exclusion in question as precluding UIM coverage if the insured is injured while operating a vehicle that is contained in a fleet or pool of non-owned vehicles to which the insured had regular access. 

After reviewing the facts of the case before him, Judge Nealon ruled in Erie Ins. Exchange v. Soroka that since the record clearly demonstrated that the partner had unrestricted access to the partnership’s inventory vehicles for business or personal use, or in other words, since the vehicle was regularly available for the injured party's use, the injured party's claim for UIM benefits under the family and commercial auto policies is barred by the non-owned, “regularly used” vehicle exclusions contained in those policies.  

As a result, the insurer’s motion for summary judgment was granted in this declaratory judgment action and the insureds’ motion for summary judgment was denied. 

Judge Nealon's opinion is noteworthy for his thorough analysis of the development of the standard of review for the application of the "Regular Use" exclusion.

Anyone desiring a copy of Judge Nealon's decision in the Erie Ins. Exchange v. Soroka case may contact me at dancummins@comcast.net.

Friday, May 27, 2011

SAVE THE DATE: JULY 21-22, 2011 PENNSYLVANIA DEFENSE INSTITUTE ANNUAL CONFERENCE

43rd Pennsylvania Defense Institute Annual Conference

 

BEDFORD SPRINGS RESORT
Bedford Springs, Pennsylvania

July 21-22, 2011

GREAT SEMINAR AND MORE!

“Modern Litigation”

• Effect of Social Networking on Litigation

• E-Discovery Law Update

• Current Insurance Fraud Schemes

• Civil Practice, Auto, Products Liability and Med Mal Law Updates


and more…



Registration material is coming soon!

Contact David Cole, Executive Director of the PDI for more info


Judge Kosik of Federal Middle District Denies Ciavarella's Request for New Trial

Here's a link to a May 27, 2011 article by Terrie Morgan-Besecker from The Times Leader reporting on Judge Kosik's denial of former Luzerne County Judge Mark Ciavarella's request for a new trial.  This ruling now clears the way for a sentencing hearing which remains to be scheduled:

http://www.timesleader.com/news/Judge-denies-former-judge-Mark-Ciavarellas-motion-for-new-trial.html

Thursday, May 26, 2011

Article On Decline of Medical Malpractice Cases in Pennsylvania

Here is a link to a May 26, 2011 article by Erin L. Nissley of Scranton's The Times-Tribune reporting on the decline of medical malpractice cases across the Commonwealth of Pennsylvania based upon tort reform measures. 

Also mentioned in the article is the current status of another tort reform measure currently making its way through Harrisburg, the Fair Share Act under which, in most cases, each defendant in a multiple defendant lawsuit will only be responsible to pay the percentage of liability assessed to that defendant by a jury.  Under the current status of Pennsylvania law, any defendant hit with even only 1% of the percentage of liability is responsible to pay the entire verdict to an injured party (and thereafter pursue the co-defendants for a reimbursement if desired).

Here's the link to the article:   http://thetimes-tribune.com/news/medical-malpractice-cases-continue-to-decline-statewide-1.1152681#axzz1NSpbS88O

Pennsylvania Defense Institute CLE Seminar - Pittsburgh - June 23, 2011

PENNSYLVANIA DEFENSE INSTITUTE

Presents

“Key Insurance Law Developments 2011”
(3 Substantive CLE Credits)

Sheraton Station Square Hotel
 Pittsburgh, Pennsylvania

Thursday, June 23, 2011

1:00 – 1:30 PM Registration


1:30 - 1:50 PM “Tort Reform Update”

Timothy Bittle

Bigley & Blikle


1:50 – 2:30 PM “Auto Law Update”

Thomas McDonnell, Esq.,
Summers, McDonnell, Hudock, Guthrie & Skeel


2:30 – 3:10 PM “Uninsured/Underinsured Motorist Law Update”

Craig Murphey, Esq.
MacDonald, Illig, Jones & Britton


3:10 – 3:25 PM Break


3:25 – 4:05 PM “Insurance Bad Faith Law: Update”
 
Robert Dapper, Esq., Dapper,
Baldasare, Benson, Behling & Kane

Daniel Rivetti, Esq.,
Robb, Leonard & Mulvihill


4:05 – 4:45 PM “Civil Practice & Procedure”

 
Scott Millhouse, Esq.

Meyer, Darragh, Buckler, Bebenek & Eck


Costs for the event:


• CLE program for lawyers $125.00


• All others $25.00






For reservations, please complete the form below and return to PDI or e-mail us at coled01@padefense.org






Name(s)_____________________________________


___________________________________________






Firm/Company__________________________________


_____________________________________________


Make checks payable to:


PENNSYLVANIA DEFENSE INSTITUTE
P.O. Box 697, Camp Hill, PA 17001-0697


For more information, contact PDI at 800-734-0737












Wednesday, May 25, 2011

Another Lackawanna County Decision in Favor of Consolidation of Post-Koken Claims

On May 18, 2011, Senior Visiting Judge Harold A. Thomson, Jr., of the Lackawanna County Court of Common Pleas issued a decision in the post-Koken case of Yesu v. Arcieri and Encompass Insurance Company of America, No. 2010-CV-9877 (Lacka. Co. May 18, 2011, Thomson, S.J.), in which he overruled the Preliminary Objections of the tortfeasor Defendant seeking a severance of the negligence claims filed against the tortfeasor from the breach of contract/bad faith claims filed against the UIM carrier.

I thank the prevailing attorney, Carl J. Poveromo of the Scranton, Pennsylvania law firm of Rinaldi & Poveromo for bringing this case to my attention.

Anyone desiring a copy of the Lackawanna County Court Order (without Opinion) in the Yesu case may contact me at dancummins@comcast.net.

Another Dauphin County Case in Favor of Consolidation of Post-Koken Claims

I was recently advised of another post-Koken joinder vs. severance decision out of Dauphin County. Under an Order dated May 13, 2011, Judge Deborah E. Curcillo consolidated the Plaintiff’s claims against the tortfeasor with the Plaintiff’s separate claim against the underinsured motorist carrier in the cases of Steele v. Kelly, No. 2009-CV-07007 (Dauphin Co., May 13, 2011, Curcillo, J.) and Steele v. Erie Insurance Exchange, No. 2010-CV-15431 (Dauphin Co., May 13, 2011, Curcillo, J.).

It is noted that there are at least five previous rulings out of Dauphin County permitting joinder where the tortfeasor and UIM cases were filed simultaneously by the Plaintiff. I had been advised that this may be the first case of Dauphin County where the joinder occurred after the cases against the tortfeasor and the UIM carrier were separately filed under separate captions.

I thank Attorney Robert F. Claraval of the Harrisburg, Pennsylvania law firm of Claraval & Claraval for bringing this case to my attention.

Anyone desiring a copy of Judge Curcillo’s May 13, 2011 Orders of court (without Opinion) in the Steele cases may contact me at dancummins@comcast.net.

Update on Wissinger v. Brady Appeal (Post-Koken Proper Venue Case)

You may recall that the case of Wissinger v. Brady was a post-Koken case that went up on appeal when the issue of proper venue of a post-Koken case in a matter in which the UIM carrier’s policy did not have a forum selection clause.

I received an Order dated May 19, 2011 from the Superior Court in the Wissinger v. Brady case, in which the Superior Court granted the Plaintiff’s Motion to Discontinue, Dismiss, and Remand the matter in light of a settlement between the Plaintiff and the third party tortfeasors.  As such, there will be no decision from the Superior Court on this issue in that case.

On a related note, we are still awaiting a decision from the Pennsylvania Superior Court in the case of Sehl v. Neff involving the same issue. I participated in that matter as the writer of the amicus curiae Brief on behalf of the Pennsylvania Defense Institute. I will publicize that decision upon my receipt of the same.

Copy of McMillen v. Hummingbird Speedway, Inc. Case Secured

I have secured a copy of the Jefferson County trial court decision of McMillen v. Hummingbird Speedway, Inc. in which the court allowed social media discovery.

Anyone desiring a copy may contact me at dancummins@comcast.net.  I also have copies of the more recent (and conflicting) social media discovery decisions in Piccolo (Bucks County) and Zimmerman (Northumberland County).

I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for sending this decision to my attention.

Monday, May 23, 2011

Another Recent Decision on Social Media Discovery

Yesterday, I reported on the Bucks County social media decision of Piccolo v. Paterson in which the court ruled against discovery of information on a Plaintiff's social media sites.  Since hearing about that case, I came across an article publicizing another recent social media discovery case--this one out of Northumberland County in favor of allowing such discovery.

According to a May 23, 2011 article by Gina Passarella of the Legal Intelligencer, the seminal Jefferson County social media decision in the case of McMillen v. Hummingbird Speedway, Inc. was recently followed by Northumberland County Court of Common Pleas Judge Charles H. Saylor in the case of Zimmerman v. Weis Markets Inc.

In Zimmerman, the Plaintiff was suing his former employer for pain and suffering, scarring, and wage loss damages after he injured his leg in a forklift accident while working.

At his deposition, the Plaintiff testified that had not worn shorts since his accident because he was embarrassed by the scar on his leg from the accident. However, according to the court’s opinion, the Plaintiff was depicted in his public MySpace pictures wearing shorts with his scar visible. The Plaintiff also posted pictures of himself with his motorcycle and discussed riding motorcycles elsewhere on his social media sites.

The defense filed a motion to compel discovery of the private portions of Zimmerman's Facebook and MySpace pages. In the motion, the defense sought discovery of the Plaintiff’s passwords, user names and login names. Relying on the Jefferson County decision in McMillen v. Hummingbird Speedway, Inc. case, the defense argued there may be relevant information as to the Plaintiff's damages claims on the private portions of those pages.

The Plaintiff asserted that his privacy interests outweigh the need to obtain this discovery material from the social networking sites. As an alternative argument, the Plaintiff also requested that the court conduct an in camera review of the Plaintiff’s sites to determine what, if any, information should be produced in discovery.

Judge Saylor of the Northumberland County Court of Common Pleas rejected the request for an in camera review of the information as creating an undue burden on the court system in this emerging area of the law.

In Zimmerman, Judge Saylor also decided to follow the ruling in McMillen and wrote, “This court agrees with the rationale of the opinion in McMillen, authorizing access for the reasons that no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal."

As such, the defense motion to compel discovery of the Plaintiff’s social networking sites was granted in the Northumberland case of Zimmerman v. Weis Markets, Inc.

Anyone desiring a copy of the decisions in the Piccolo case and the Zimmerman case may contact me at dancummins@comcast.net.

Sunday, May 22, 2011

Latest Trial Court Decision on Social Media Discovery

According to a May 17, 2011 article by Gina Passarella of the Pennsylvania Law Weekly, Judge Albert J. Cepparulo issued a one paragraph Order in the Bucks County case of Piccolo v. Paterson, in which he denied a Defendant’s Motion to Compel the Plaintiff to allow the defense access to the Plaintiff’s Facebook page.

According to the article, the Plaintiff in Piccolo was injured as a result of a motor vehicle accident during which she was hit in the face with the airbag and suffered significant lacerations to her lip and chin. The Plaintiff required 95 stitches to her face in the emergency room on the day of the accident and then had scar revision surgery thereafter along with several laser treatments to reduce the scarring. The court filings contained allegations that the Plaintiff was permanently scarred on her face.

The article notes that, following the accident, the Plaintiff allowed the defense carrier to come to her home about a year after the accident and take a number of photographs of her face.

During the course of this litigation, the Plaintiff had also provided the defense with 20 photos of her face that were taken about a week following the accident. Also provided were five photos from the months just before the accident for comparison purposes.

The article also states that the Plaintiff additionally allowed the defense to take even more pictures at the Plaintiff’s September of 2010 deposition.

The Defendants then wanted access to other photos of the Plaintiff that the Plaintiff had posted of herself on Facebook. At her deposition, the Plaintiff was asked about the Facebook account and defense counsel inquired whether could send a “neutral friend request” to the Plaintiff so that he could then be granted access to the Plaintiff's Facebook postings that the Plaintiff testified she made everyday.

The Plaintiff denied this request but, according to the defense filings on the Motion to Compel, indicated that at the deposition that her status updates and pictures were available for public viewing and that she would not make them private.

However, according to the defense filings, when the defense went to the Plaintiff’s Facebook page, those postings were private and only available to the Plaintiff’s friends. This prompted the defense attorney to follow up with a letter to the Plaintiff’s attorney requesting the Plaintiff to accept a friend request from the defense. When that was denied, the Motion to Compel followed.

In support of its argument for access to the Facebook page, the defense cited the September of 2010 Jefferson County trial court Opinion of McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, PICS No. 10-3174 (Jefferson Co. September 9, 2010, Foradora, P.J.), in which that Court held that Facebook postings were discoverable and ordered the Plaintiff to provide his username and password to the defense.

In opposition to the Motion to Compel, the Plaintiffs argued that, contrary to the situattion in the McMillen case, the defense counsel had only inquired about pictures posted on Facebook and not any textual postings. The Plaintiffs also argued that the defense had been already provided with as complete a photographic record of a comparison of the Plaintiff’s pre-accident condition verses her post-accident condition as the defense could reasonably have a right to expect under the circumstances presented.

After hearing argument on the issue, Judge Cepparulo issued his one paragraph Order in Piccolo denying the Motion to Compel. According to the article, it did not appear that the defense intended to appeal the decision in Piccolo.

It appears from the article that the focus of the Plaintiff's injuries in Piccolo were on her facial scarring injuries as opposed to musculoskeletal injuries and the impact of those injuries on the Plaintiff's activities of daily living.  As set forth in the article on the case, the Judge in Piccolo may have agreed with the Plaintiff's contention that the defense request for access for even more photos of the Plaintiff's face from her Facebook page was overkill given the number of pre-accident and post-accident photos that had been previously supplied.

This is to be contrasted from the situation in McMillen v. Hummingbird Speedway, Inc. in where there was reason to believe that the Plaintiff's Facebook page may offer relevant evidence that would serve to contradict the Plaintiff's contentions of limitation in his activities of daily living as a result of his accident-related injuries.

The Court in McMillen found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the Plaintiff’s sites may be relevant in proving the truth or falsity of the Plaintiff’s alleged injuries, the Court found that the overriding goal of the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

President Judge Foradora held that where a person’s social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.  As such, Judge Foradora ordered the Plaintiff to produce his Facebook and MySpace user names and passwords. The Plaintiff was further ordered not to delete or alter any of the information on the accounts.


As written discovery requests and deposition questions pertaining to a party's social networking activities are becoming the norm, it can be expected that more decisions will be generated on this topic.

Also, as to other litigation strategies in this regard, I have seen recommendations that counsel secure a "litigation hold" court order against an opposing party in a lawsuit in order to prevent that other party from deleting anything from his or her Facebook page during the course of a litigation.



For more information on the McMillen v. Hummingbird Speedway case, I offer the following links to previous posts here on Tort Talk, one of which is to a reprinting of my Pennsylvania Law Weekly article on the topic:

http://www.torttalk.com/2010/10/new-discovery-battlefield-social.html


http://www.torttalk.com/2010/10/article-new-discovery-battlefield.html



Anyone desiring a copy of the McMillen v. Hummingbird Speedway, Inc. decision may contact the Pennsylvania Law Weekly’s Instant Case Service by calling 1-800-276-7427 and providing the PICS number noted above.  As for a copy of the Piccolo court order, the same can presumably be secured from the Bucks County Court of Common Pleas.

Wednesday, May 18, 2011

TORT TALK IS NOW TWO YEARS OLD


Tort Talk recently turned two years old and also just went over the 600 email subscriber mark. 

Over the past year, in addition to regular and timely reporting on important cases and trends in Pennsylvania civil litigation law, Tort Talk has developed a logo and even put on the very successful Tort Talk Expo 2011 CLE seminar.  I hope to make the Tort Talk Expo an annual CLE/networking event.

I thank all Tort Talkers very much for reading, commenting, and for tipping me off on important decisions and trends from around the Commonwealth of Pennsylvania.  I hope to continue to hold your interest with breaking news, informative articles, and access to opinions that may be otherwise difficult to secure. 

Of course, I also plan to continue updating the Post-Koken Scorecard in an effort to keep that novel area of the law comprehensible in terms of judicial precedent on the emerging issues to date.  I recently updated the Post-Koken Scorecard by alphabetizing the county-by-county listing of the decisions.  You can always access by clicking on the date below the label "Post-Koken Scorecard" down on the right-hand column of the blog.

Should I ever be able to assist anyone with any matters in Northeastern Pennsylvania, or with any questions or requests for opinions, please do not hesitate to contact me.



THANKS AGAIN -- VERY MUCH!!




Source of image: Image: renjith krishnan / FreeDigitalPhotos.net

Luzerne County Primary Winners for Court of Common Pleas Positions

Here's a link to an article by Terrie Morgan-Besecker from the May 18, 2011 Wilkes-Barre, PA Times Leader outlining the primary winners for the six (6) open seats for Judge of the Luzerne County Court of Common Pleas:

http://www.timesleader.com/news/VOTERS_rsquo__VERDICT_05-18-2011.html

Monday, May 16, 2011

New A.3d Citation for Important Election of UIM Coverage Case

Orsag v. Farmer's New Century Ins., 15 A.3d 896 (Pa. 2011)(Insured's election of $15,000 in underinsured motorist (UIM) coverage in automobile insurance application satisfied statute (75 Pa.C.S. 1731(a), 1734) requiring election of UIM coverage lower than bodily injury coverage in writing.).

Judge Terrence R. Nealon of Lackawanna County Provides Framework for Presentation of Motion to Approve Settlement of Wrongful Death/Survival Action

On May 5, 2011, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision in the Galletti v. Taylor Longterm Care Center, Inc., et.al., No. 2008-CIV-3740 (Lacka. Co., May 5, 2011, Nealon, J.), in which the Court addressed new Lackawanna County Local Rule 2206, pertaining to the allocation of settlement proceeds between wrongful death and survival actions, and the Department of Revenue’s objections to the Plaintiff’s proposed allocation.

Addressing an issue of first impression with regards to the local rule, Judge Nealon sets forth a prescribed procedure to be followed when the Department of Revenue consents verses when it objects to the proposed allocation of settlement proceeds.

In Galletti, the Plaintiff’s decedent was fatally injured in an accident that occurred in a nursing home. After a professional liability action was commenced against the nursing home Defendants seeking to recover damages under the Survival Act and the Wrongful Death Act, the case settled for the global sum of $450,000.00.

Prior to requesting court approval of the settlement on behalf of the decedent’s estate, and in accordance with Lackawanna County Local Rule 2206, the Plaintiff’s requested the consent of the Pennsylvania Department of Revenue to a proposed apportionment of the settlement proceeds with 85% being allocated to the wrongful death claim and 15% being assigned to the survival claim.

By letter, the Department of Revenue advised the Plaintiff’s counsel that it objected to the 85%-15% apportionment and would agree only to a 50%-50% allocations of the settlement proceeds between wrongful death and survival claims.

Accordingly, the Plaintiffs filed a “Motion for Approval of Settlement” and provided the Pennsylvania Department of Revenue with notice of the Rule Returnable hearing date. Although the Pennsylvania Department of Revenue objected to the Plaintiff’s allocation of the settlement proceeds, they did not bother to show up at the hearing.

Judge Nealon noted that, under Pennsylvania law, whenever wrongful death and survival actions are settled for a single sum, the amounts apportioned to the survival claim and the wrongful death claim must be approved by a Court having jurisdiction.

The Court noted that such an apportionment has significant tax implications as only the monies apportioned to the survival action are subject to estate inheritance taxes. Since any amount allocated to the wrongful death claim passes outside of the decedent’s taxable probate estate, the decedent’s creditors cannot assert any claims against the wrongful death recovery.

Lackawanna County Local Rule of Civil Procedure 2206 entitled “Court Approval of Distribution of Proceeds,” requires that a Plaintiff in the settlement of claims under the Wrongful Death Act or the Survival Act shall present a Motion for Approval of the Proposed Distribution of Proceeds, which motion shall attach correspondence or some other form documented communication from the Pennsylvania Department of Revenue confirming whether or not that entity objects to the proposed apportionment.

In Lackawanna County, if the Department of Revenue concurs with the Plaintiff’s allocation, the Plaintiff may proceed in accordance with Local Rule 208.3(a) by simply presenting the Motion for Court Approval of the Settlement to the Motions Court judge.

However, if the Department of Revenue objects to the proposed apportionment, the Plaintiff shall proceed according to Pennsylvania Rule of Civil Procedure 208.4 by requesting the issuance of a Rule to Show Cause in the scheduling of an evidentiary hearing. The Plaintiff is required to serve the Department of Revenue with a copy of the Rule To Show Cause and must notify the Department of the date and time of the scheduled hearing.

The Court in Galletti noted that the Plaintiff complied with these Rules and provided the Department of Revenue with notice of the hearing. According to the Opinion, the basis for the Department’s objection is that Galletti (the decedent’s son) did not suffer any pecuniary loss as a result of his mother’s death so as to justify the allegation of 85% of the settlement proceeds to the wrongful death action.

At the hearing on the Motion for Approval of Settlement the decedent’s son presented evidence, through an interpreter, that he was a “death-mute” who frequently visited his mother approximately once a week and often resided with her on weekends and vacations, even though the son lived in New Jersey. At the conclusion of each visit, the decedent would provide the son with food she had made and froze for him in anticipation of the visit. Furthermore, it was testimony that the decedent frequently provided financial assistance to the son for renovations to the son’s home and for the son’s other personal expenses. The Opinion noted that the decedent’s financial assistance to the son continued even when the decedent was a resident in the nursing home.

As such, the son asserted that at least 85% of the settlement proceeds are attributable to damages that may be recovered under the Wrongful Death Act. The son maintained that most of the wrongful death damages related to the pecuniary value of the services and contributions that his mother would have provided to him.

Judge Nealon noted that, in terms of the damages under the Survival Act, such damages are designed to compensate the decedent’s estate for losses suffered by the decedent herself, including conscious pain and suffering and wage losses. If the decedent is retired at the time of her death, such as in this matter, a claim may also be advanced under the Survival Act for the loss of her future Social Security Benefits, less an appropriate personal maintenance expense.

In this matter, the decedent’s son presented evidence to show that the claim for conscious pain and suffering on behalf of the decedent could only have been for the time period of the less than 90 minute interval between 6:15 a.m. and 7:40 a.m., which was the last time the decedent was checked on before her death by the nursing home personnel and the time that the decedent was discovered thereafter in an unresponsive state with her head trapped between the mattress, the mattress frame and side rail and the bottom portion of the her body being upon the floor. The decedent’s son argued that, since that was the only possible timeframe for any conscious pain and suffering claim, the apportionment of only 15% of the settlement proceeds to the survival action was appropriate.

After reviewing the law governing damages which are recoverable under the Wrongful Death Act and the Survival Act and comparing it to what he found to be the credible evidence introduced by the son during the hearing, and with the Department of Revenue not even bothering to appear for the hearing despite their state objections to the apportionment of the settlement proceeds, Judge Nealon found that the Plaintiff’s suggested allocation of 85% of the settlement proceeds to the wrongful death action and 15% to the survival action to be equitable. Accordingly, the court granted the Plaintiff’s Motion for Approval of Settlement.

Although this Opinion is based somewhat upon Lackawanna County Local Rule 2206, the Opinion does provide a nice summary of the applicable law and a workable framework for the pursuit and presentation of a Motion to Approval a Settlement of a Decedent’s Estate with an apportionment of damages between the Wrongful Death Act and the Survival Act.


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

Wednesday, May 11, 2011

Judge Robert Mazzoni of Lackawanna County Issues Coverage Decision in Favor of Carrier

On March 15, 2011, Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas issued a coverage decision in favor of the carrier in the case of Donegal Mut. Ins. Co. v. Lochner, No. 2008-CV-6110 (Lacka. Co. 2011 Mazzoni, J.).

In this matter Donegal Mutual Insurance Company filed a declaratory judgment action, and this motion for summary judgment, seeking a judicial declaration that it did not have a duty to defend or indemnify in a case where its insured fatally injured another person in a physical altercation.

Judge Mazzoni  found that the homeowner's insurance policy at issue clearly and unambiguously precluded coverage pursuant to a Criminal Acts Exclusion.  In this case, the insured had pled guilty to involuntary manslaughter in a companion criminal matter.

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

Monday, May 9, 2011

Unsettled Issues Regarding Future Medical Expenses in Motor Vehicle Accident Matters

In a recent April 11, 2011 Memorandum Opinion, Judge James Munley of the District Court for the Middle District of Pennsylvania decided several issues in response to various pre-trial motions in limine filed by both parties in the case of Kansky v. Snowman, 3:09cv1863 (M.D. Pa. April 11, 2011, Munley, J.).  As part of his decision, Judge Munley found that a plaintiff may plead, prove and recover future medical expenses as those expenses were not shown to be "paid or payable."

In Kansky, the Plaintiff was prepared to present his medical expert's opinion at trial that included that expert's prediction on the extent of substantial future medical expenses the Plaintiff would incur due to his accident-related injuries.

The Defendant filed a motion in limine in which it was asserted that the Pennsylvania Motor Vehicle Financial Responsibility Law precluded the Plaintiff from recovering future medical benefits which may be covered by the Plaintiff's health insurance.  More specifically, 75 Pa.C.S.A. Section 1720 and/or 1722 precluded the Plaintiff from introducing into evidence any medical expenses that were "paid or payable" by applicable forms of insurance.

Judge Munley denied the Defendant's motion in limine under the rationale that the future medical expenses evidence at issue could not deemed be "payable" under the law because there was no guarantee that the Plaintiff would still have such health insurance in place at the time the bills were incurred in the future to pay for those medical expenses.

More specifically, Judge Munley wrote:

"The word “payable” in Act 6 can have many meanings, such as “owed, to be paid, due”. Future medical payments are not currently due and outstanding. The defendants cannot guarantee that any future expenses will in fact be paid. It is merely speculation. For instance, plaintiff's insurer could become bankrupt, or deny future medical bills for a variety of reasons. We agree with the plaintiffs. Because the insurance benefits are not necessarily due and owing at this time and nothing could compel the insurer to pay a lump sum for future expenses, plaintiffs future medical bills are not “payable” under Act 6. Fairness and public policy dictate that the burden of any risk or speculation should fall on the defendants, not plaintiffs."

Judge Munley therefore found that, since the future medical expenses were not "payable" under any form of applicable insurance, the future medical expenses could be pled, proven, and recovered by the Plaintiff at trial.

Judge Munley's decision can be contrasted by the opposite decision reached on the same issue by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas case of Orzel v. Morgan, No. 03-CV-4929 (Lacka. Co. 2008 Nealon, J.), an automobile accident case in which I was the defense counsel.

In Orzel, a pre-trial motion in limine was filed on behalf of the defense seeking to limit the Plaintiff's introduction of evidence of substantial future medical expenses that the defense asserted were "payable" under the Plaintiff's remaining first party medical benefits coverage and/or the Plaintiff's available health insurance.  This issue was raised again in post-trial motions filings as well.

The Plaintiff in Orzel argued that future medical expenses could not be regarded as "payable" under 75 Pa.C.S.A. Section 1722 as her first party benefits carrier, Erie Insurance Exchange, "could become bankrupt" or may deny payment of future medical bills through a peer review process.  The Plaintiff also asserted that there was no statute or case law applying the "paid or payable" language to future medical expenses claims.

As noted in his Opinion on the post-trial issues presented, Judge Nealon had granted the Defendant's pre-trial motion in limine in this regard and also ruled in the same fashion when the issue was revisited in the post-trial motions stage.

More specifically, Judge Nealon found that the alleged future medical expenses were indeed "payable" under the Plaintiff's remaining first party medical benefits coverage.  Citing a series of cases, Judge Nealon noted that the word "payable" is generally defined as capable of being paid, or suitable to be paid, or legally enforceable.

Judge Nealon also noted that, in the case of Schroeder v. Schrader, 682 A.2d 1305, 1310 (Pa.Super. 1996), the Pennsylvania Superior Court  held that "[a]bsent a statutory or judicial definition to the contrary, the word 'payable' plainly refers to a claimant's entitlement to future payments, until such time as the payments are modified or terminated."

As such, Judge Nealon noted that the Plaintiff had failed to offer any proof in support of the contention that the medical expenses would not be paid in the future by the available first party benefits coverage and he therefore found that the Plaintiff's alleged future medical expenses were indeed "payable."  Accordingly, the portion of alleged future medical expenses that could be covered by the remaining PIP medical benefits were not recoverable under the Motor Vehicle Financial Responsibility Law.

As such, Judge Nealon's decision in Orzel supports a contention that future medical expenses can be deemed to be "payable" under appropriate insurance coverages possessed by a plaintiff at the time of a trial.

It is noted parenthetically that the Orzel opinion arguably also stands for the proposition that the burden of proving that medical expenses are not "paid or payable" rests with the Plaintiff.  See also Grant v. Baggott, 36 Pa.D.&C.4th 298, 310, 723 A.2d 240 (Pa.Super. 1998), appeal denied 734 A.2d 394 (Pa. 1998)("Plaintiffs have failed to meet their burden of demonstrating that these benefits were not either paid or payable pursuant to Section 1722 of the Act.").

In Orzel, Judge Nealon was faced with the additional dilemma of how to handle the situation where the Plaintiff was offering evidence of the alleged potential of substantial future medical expenses in a dollar amount that exceeded any available  insurance coverage that such expenses would be "payable" under. 

More specifically, the Plaintiff in Orzel had about $85,000 in PIP medical benefits coverage remaining but was offering evidence through a medical expert that the future medical expenses would amount to hundreds of thousands of dollars.

As noted, the defense in Orzel argued that those future medical expenses that remained "payable" should not be admitted into evidence as they were not recoverable under Pennsylvania law.  The defense also asserted, in reliance upon the case of Pittsburgh Neurosurgy Assoc., Inc. v. Danner, 733 A.2d 1279 (Pa.Super. 1999) appeal denied, 751 A.2d 192 (Pa. 2000), that before any other recoverable future medical expenses are presented to a jury, they should first be reduced in accordance with Act 6 of the Pennsylvania MVFRL (75 Pa.C.S.A. 1797).

The Plaintiff asserted that the case of Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001) supported her contention that the full amount of any and all future medical expenses should be admitted, without reference to any Act 6 reduction.  The Plaintiff also asserted that, since there was no legal authority on point to the contrary, the Plaintiff should be allowed to recover the full or entire amount of future medical expenses awarded by the jury without an offset or credit to the defense in the amount of any remaining policy limits of any policy those future medical expenses remained "payable" under.

Although Judge Nealon had ruled that future medical expenses could be "payable" under applicable available insurance and, therefore, not recoverable, in this scenario set forth in Orzel where the Plaintiff had potential future medical expenses well in excess of the available insurance coverage, Judge Nealon allowed the Plaintiff to put before the jury all of the evidence of future medical expenses subject to a post-verdict molding proceeding. 

He also noted that, if the Plaintiff's expert did not testify that this evidence of future medical expenses had not been reduced in accordance with Act 6, the defense could cross-examine the Plaintiff's medical expert concerning the statutory requirement under 75 Pa.C.S.A. Section 1797 that the medical care provider accept a reduced sum as full payment for the medical services provided.

Under Judge Nealon's framework, the future medical expenses awarded by the jury could be made the subject of a post-verdict molding proceeding whereby the defense could request that the full amount of medical expenses awarded by the jury be reduced by Act 6 and then offset by any amounts of PIP coverage or applicable health insurance coverage under which those future medical expenses remained "payable."

Judge Nealon rejected the argument of the defense in Orzel that one potential problem with this framework is that the Act 6 reduction of future medical expenses may not be possible because there are no actual medical bills incurred yet to apply to the very specific formula set forth under Act 6 for the determination of the reduced amount of the medical bills that are recoverable.  Apparently, that issue can be resolved by the presentation of expert testimony from each side by a medical expert or life care planning expert, "to a reasonable degree of certainty," as to what the Act 6 reduced amount of medical expenses would be.

Orzel was settled by the parties prior to the case going up on appeal. This issue therefore remains a tricky one and, to date, there does not appear to be any appellate guidance on point with regards to how to handle the presentation of future medical expenses at an automobile accident trial, including the issues of the Act 6 reduction and the mandate that any medical expenses that remain "paid or payable" are not recoverable by the plaintiff.


I thank Attorney Paul Oven of the Moosic, Pennsylvania office of the law firm of Dougherty, Leventhal & Price for bringing the case of Kansky v. Snowman to my attention.

Anyone desiring a copy of Federal Middle District Court Judge James Munley's opinion in Kansky or Judge Terrence R. Nealon's opinion in the case of Orzel v. Morgan may contact me at dancummins@comcast.net.

Tuesday, May 3, 2011

Status Report on Appeal in Post-Koken Case of Wissinger v. Brady

Tort Talkers may recall that the Post-Koken case of Wissinger v. Brady, out of Luzerne County, went up on appeal to the Superior Court and was submitted on briefs for the court to address the issue of proper venue for Post-Koken cases where there is no forum selection clause in the UIM policy at issue.

There has been no decision handed down in this matter to date.  By way of status report, I also note that the Plaintiff in this matter recently filed with the Superior Court a Motion to Discontinue, Dismiss, and Remand the matter to the Luzerne County on account of the fact that the Plaintiff has entered into a settlement with the third party tortfeasors (and thereby apparently eradicating any venue issues under an argument that an insurance carrier can be sued anywhere in Pennsylvania since the carrier conducts business everywhere in Pennsylvania.).  It remains to be seen how the Court will respond to this motion.

In any event, this same issue remains before the Superior Court in the separate case of Sehl v. Neff which was argued last week on April 27th.

I wrote the amicus brief on behalf of the Pennsylvania Defense Institute in favor of the defense position in both of these matters.  I will report on any court action that happens in these cases.

Judge Terrence Nealon of Lackawanna County Addresses Duty to Defend/Indemnify in Context of "Non-Owned Autos" Provision of Automobile Insurance Policy

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued an April 25, 2011 decision in the case of Nationwide Mut. Ins. Co. v. Esgro, 2007 Civil 4862 (Lacka. Co., April 25, 2011, Nealon, J.), addressing a coverage question involving a “non-owned autos” provision of an automobile insurance policy.

In this case, the insureds personally owned a vehicle that was involved in a single vehicle accident that was fatal to the one of the occupants of the vehicle.  After having recovered under other policies, including the policy that specifically covered the vehicle involved in the accident and UIM coverage from the decedent's own insurer, the plaintiff pursued a recovery under the business' auto policy with Nationwide that had been separately purchased by the owner of the vehicle involved in the accident.  The plaintiffs [the decedent's estate] asserted that, at the time of the accident, an insured’s defendant's personal vehicle was being used in furtherance of the insured's business and therefore implicated the Nationwide policy.


Nationwide’s policy obligated it to “pay all sums an ‘insured’ must legally pay as damages” for injuries “caused by an accident and resulting from the ownership, maintenance or use of a covered ‘auto’.”

An “insured” includes the named insured as well as “[a]nyone else while using with your permission a covered auto you own, hire or borrow.”

“Covered autos” are comprised of three categories of vehicles: (1) “specifically described autos;” (2) “hired autos;” and (3) “non-owned autos.”

The claimants asserted that coverage should be afforded under the “non-owned autos” provision. According to Judge Nealon’s Opinion, that provision defines “non-owned autos” as:

Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

Nationwide filed a motion for summary judgment seeking a judicial declaration that it did not owe any duty to defend or indemnify the tortfeasor defendants. The carrier argued that a sole proprietorship business could not be viewed independent of the owner of the business for insurance coverage purposes. Under this argument, since the insured actually owned the vehicle involved in the accident, that vehicle could not be viewed as a "non-owned auto" under the Nationwide policy at issue.


The party seeking coverage asserted that the business at issue was actually a partnership and that the policy provided coverage separately for that type of business. The party seeking coverage also relied upon the “reasonable expectations doctrine.’

After reviewing the parties’ respective positions and analyzing the law on the issue presented, Judge Nealon ruled, as follows:

"A partnership’s automobile insurer has filed a motion for summary judgment seeking a declaration that it owes no duties to defend or indemnify one of the named partners and his relatives in a pending wrongful death action since the vehicle involved does not qualify for liability coverage under the “non-owned autos” provision of the partnership’s policy. A reasonable, alternative interpretation of the relevant policy language supports the conclusion that the policy affords liability coverage for vehicles owned by individual partners or members of their households while the vehicles are being used for partnership business or a partner’s personal affairs. Accepting as true the averments of the amended complaint filed in the underlying tort action, issues of fact exist as to whether the subject vehicle was being used in furtherance of the partnership’s business interests and one partner’s personal affairs at the time of the accident. Therefore, the tort claims filed against that partner and the permissive user of the vehicle may potentially fall within the scope of the policy’s liability coverage, and as such, the insurer’s motion for summary judgment will be denied with respect to those individuals. However, since two other relatives do not qualify as named insureds or permissive users of a “covered auto,” the motion for summary judgment will be granted as to those tort defendants."


Anyone desiring a copy of this decision, which has a nice recitation on the law surrounding the duty to defend and/or indemnify, may contact me at dancummins@comcast.net.

ARTICLE: Mastering the Great (But Lost) Art of the Return Phone Call


For your hopefully reading enjoyment, I direct your attention to the JDSupra box down on the right side of this blog where you can click on the link to my recent article published in the May/June 2001 edition of the Pennsylvania Lawyer magazine entitled "Mastering the Great (But Lost) Art of the Return Phone Call:  A tongue-in-cheek guide to tackling a difficult task." 

You may also be able to click on the title of this post to get to that article online.


Source of photo: Idea go / FreeDigitalPhotos.net

Image: Idea go / FreeDigitalPhotos.net

Sunday, May 1, 2011

SAVE THE DATES - UPCOMING CLE SEMINARS OF NOTE

PENNSYLVANIA DEFENSE INSTITUTE


“Tort Reform in Pennsylvania: Is it Really Going to Happen This Time?”

Hollywood Casino at Penn National Race Course


Grantville, Pennsylvania



Thursday, May 19, 2011



1:00 – 1:30 PM Registration

1:30 – 2:30 PM “Tort Reform:
A View from the Pennsylvania Insurance Department”

Hon. Michael Consedine, Acting Insurance Commissioner


2:30 – 2:45 PM Break




2:45 – 3:45 PM “Tort Reform: Is it Really Going to Happen This Time?”

Gene Barr,
Vice President, Pennsylvania Chamber of Business and Industry

Karen Coates,
Director of Legislative Affairs, House Majority Leader

David Tideman, Esq.,
Counsel, State Farm Insurance

Timothy Bittle,
Bigley & Blikle



3:45 – 4:00 PM Break





4:00 – 5:00 PM “Tort Reform: The Next Round?”

Civil Practice & Procedure:
Wesley Payne, Esq.,
White & Williams

Scott Millhouse, Esq.,
Meyer, Darragh, Buckler, Bebenek & Eck

Products Liability:
C. Scott Toomey, Esq.,
Littleton, Joyce, Ughetta, Park & Kelly


Medical Malpractice:
Daniel Grill, Esq.,
Thomas, Thomas & Hafer

Insurance Bad Faith:
R. Bruce Morrison, Esq.,
Marshall, Dennehey, Warner, Coleman & Goggin

Charles Haddick, Jr., Esq.,
Dickie, McCamey &Chilcote



5:00 PM Cocktail Reception


To Register Contact:
David Cole, Executive Director of the PDI
(coled01@padefense.org)

__________________________________________________



43rd Pennsylvania Defense Institute Annual Conference


BEDFORD SPRINGS RESORT


Bedford Springs, Pennsylvania


July 21-22, 2011










GREAT SEMINAR AND MORE!


“Modern Litigation”


• Effect of Social Networking on Litigation

• E-Discovery Law Update

• Current Insurance Fraud Schemes

• Civil Practice, Auto, Products Liability and Med Mal Law Updates


and more…



Registration material is coming soon!

Contact David Cole, Executive Director of the PDI for more info
(coled01@comcast.net)



____________________________________________



PENNSYLVANIA DEFENSE INSTITUE


and


NORTHEASTERN PENNSYLVANIA
TRIAL LAWYERS ASSOCIATION


Continuing Legal Education Seminar

Mohegan Sun Casino


Wilkes-Barre, Pennsylvania

August 24, 2011

12:30 pm - 4:30 pm



Cocktail Reception to Follow


Course Planners Matthew Keris, Esquire and Daniel E. Cummins, Esquire
are currently working on the program which will at least include the following topics:

Civil Litigation Practice Tips

Social Media and the Law

A View From the Bench



More details to follow....


Contact David Cole, Executive Director of the PDI for more info
(coled01@comcast.net)