Wednesday, August 31, 2011

Judge Cosgrove of Luzerne County Addresses "Regular Use" Exclusion in Auto Policy

In his June 27, 2011 Opinion in the case of Rother v. Erie Insurance Exchange, No. 14656-Civil-2008 (C.P. Luz. June 27, 2011 Cosgrove, J.) Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas addressed a declaratory judgment action involving the question of the application of a “regular use” exclusion under an Erie Insurance policy.

According to the Opinion, the Plaintiff was injured in a motor vehicle accident on March 3, 2007. At that time, he resided with his mother. The vehicle in which the Plaintiff was located in at the time of the accident was owned by his father, who restricted the Plaintiff's use of this vehicle to work or emergency purposes.

The Opinion notes that, while the Plaintiff was admittedly not driving to or from work when the accident occurred, he claimed that he was on his way to help a friend. While on his way to help a friend, the Plaintiff was involved in the subject accident that was caused by an allegedly intoxicated driver.

The tortfeasor’s carrier tendered the policy limits under the liability policy and the Plaintiff pursued an underinsured motorist claim against the Erie Insurance Exchange policy that was issued to the Plaintiff’s mother.

Judge Cosgrove noted that, while Erie acknowledged that the Plaintiff was otherwise covered by a “resident relative” under his mother’s policy, Erie had denied covered pursuant to the “regular use” exclusion in the policy. That exclusion provided that coverage was inapplicable in the following circumstances:

“Bodily injury to….a resident using a non-owned motor vehicle….which is regularly used by [that] resident, but not insured for Uninsured or Underinsured Motorists Coverage under the policy.”

According to the Opinion, the injured party Plaintiff instituted the declaratory judgment action seeking a judicial declaration that the Erie policy should indeed provide UIM coverage. The case came before Judge Cosgrove by way of Erie Insurance’s Motion for Summary Judgment in which the carrier asserted that the “regular use” exclusion precluded any coverage under the facts presented.

In addressing the summary judgment motion, Judge Cosgrove noted that there was no dispute that the Plaintiff’s use of the vehicle was of the type to which the exclusion of issue applied. He additionally noted that there was no dispute that the subject vehicle was not otherwise insured under the Erie policy issued to the Plaintiff’s mother. Nor was there any question that the Plaintiff resided with his mother.

Rather, the sole issue before the Court was whether the Plaintiff “regularly” used the subject vehicle in a way contemplated by the exclusion.

In his Opinion, Judge Cosgrove reviewed the current status of the regular use exclusion under Pennsylvania law, including a reference to the recent Opinion issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Erie Insurance Exchange v. Soroka, No. 09-CIV-1056 (C.P. 2011 Lacka. Co. Nealon, J.). Judge Cosgrove noted that, while it is clear under Pennsylvania law that this “regular use” exclusion is legitimate and not contrary to public policy, the appropriate application of the exclusion was subject to the particular factual situation presented on a case by case basis.

Accordingly, Judge Cosgrove reviewed the facts of the case before him and found that the Plaintiff’s permission to use the subject vehicle was limited by his father such that there were genuine issues of material fact as to whether or not the Plaintiff “regularly” used the vehicle so as to come within the “regular use” exclusion set forth in the Erie Insurance Exchange policy.

As such, Judge Cosgrove denied the carrier’s Motion for Summary Judgment given that he was unable to say, as a matter of law, that the “regular use” restriction at issue precluded coverage under the facts presented.

Anyone desiring a copy of this case may contact me at

Monday, August 29, 2011

Judge Terrence Nealon of Lackawanna County Addresses Landlord-Tenant Liabilities in Slip and Fall Case

In his recent August 25, 2011 decision in the case of Whitney v. Caputo and Noto, No. 2006 - CV - 3124 (C.P. Lacka. Aug. 25, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the common law maintenance duties of landlords and tenants with respect to snow and ice removal in situations where the landlord leases part of the premises to the tenant but continues to reside in and exercise control over the remainder of the property.

In this case there was no written lease agreement specifying who was responsible for what maintenance.  The landlord owned and lived in the second story of a house where he rented out the first floor to a tenant who used the space as a hair salon. The landlord retained control over the basement, an attached garage, and the parking lot area for the premises as well.

The parking lot was situated in the rear of the property and led to a sidewalk that bordered the front entrance to the building. The tenant's first floor hair salon also had a rear door which exited to the parking lot via five exterior steps

Under the oral lease agreement between the parties, the landlord advised the tenant that he would be responsible for snow removal and maintenance of the parking lot and sidewalk.  In the months leading up up to the Plaintiff's slip and fall incident, the landlord shoveled the rear parking lot, the sidewalk, and the front steps whenever it snowed. The tenant would apply salt to the back steps leading into her salon.

The Plaintiff was a client of the tenant's hair salon. When leaving the premises, the Plaintiff descended the rear steps and, as she placed her right foot on the parking lot pavement and proceeded to move her left foot from the step to the pavement surface, she slipped and fell to the ground.

The court quoted excerpts from the Plaintiff's deposition testimony. A review of that testimony confirmed that defense counsel took painstaking efforts to secure admissions from the plaintiff that she did not slip until after both of her feet had stepped onto the parking lot surface, i.e. after she had entirely separated from the steps leading down from the salon entrance.

In requesting summary judgment, the tenant argued that the landlord retained control over the building except for that portion of the building specifically leased to the tenant, i.e., the first floor hair salon such that the landlord was legally responsible for the condition of the parking lot over which he retained control. The tenant further asserted that she owed no duty to the Plaintiff with respect to the maintenance of the parking lot area. The Plaintiff argued that the tenant was still potentially liable in light of the fact that the tenant took action to maintain the steps.

In this opinion, Judge Nealon reviewed the separate duties owed by a landlord out-of-possession who leases the entire premises to the tenant versus the situation presented in Whitney where the landlord leases a portion of the premises to the tenant yet retains control over a portion of the premises.

Under Pennsylvania law, the issue of which possessor of land owes a duty to third persons is one of control. Generally speaking, a landlord who retains control of a portion of the premises, will remain responsible for that portion. In contrast, an out-of-possession landlord is generally not liable for injuries suffered by third persons on the leased premises unless the owner/landlord retained control over the dangerous portion of the premises involved.

In Whitney, Judge Nealon found that the evidence established that the landlord had leased the first floor to the tenant but retained control of the parking lot which tenant's customers were entitled to use. It was also admitted that the landlord assumed sole responsibility for the maintenance and cleaning of that lot.

Accordingly, Judge Nealon found that, under Pennsylvania law, including the application of the Restatement (Second) of Torts  Section 360 ("Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use"), only the landlord had a common law duty to clear the parking lot surface. Since it was confirmed that the Plaintiff slipped and fell on the parking lot surface, the motion for summary judgment filed by the tenant Defendant was granted.

This decision by Judge Nealon provides a nice recitation of the law applicable to landlord-tenant liabilities in slip and fall cases and also provides a good reminder as to how important it is to pinpoint the exact location and manner of the plaintiff's slip or trip and fall during the plaintiff's deposition.

Anyone desiring a copy of Judge Nealon's decision from the Whitney v. Caputo and Noto case may contact me at

Thursday, August 25, 2011

Federal Middle District Judge Denies Efforts to Secure Expert's Annual Income at Trial Deposition

In the Federal Middle District Court case of Young v. Pleasant Valley School District, PICS No. 11-3953(M.D.Pa. 2011, Kane, J.), Judge Yvette Kane denied a plaintiff's motion to compel a defense expert to provide more detailed information on his general income from expert services in the year leading up to the incident in a case where the expert had already disclosed the fees he was earning in this case as well as in cases he had testified in since 2003.  

The Young case involved a civil rights claim by a student against a high school teacher.  The defense retained an expert in the educational field to address the claims presented.  The issue at hand arose when the expert refused to answer the plaintiff's attorney's question during a trial deposition that inquired as to the amount of income the expert had earned in the past year as an expert.

In denying the plaintiff's motion to compel an answer to this question, the court emphasized that the expert testified that 50 percent of his testimony was provided for the plaintiff's side and 50 percent was provided for the defense side.  As such, it appeared to the Judge that the expert did not have any financial incentive to show bias towards any plaintiff or defendant in light of the fact that he relied upon both sides equally for his income.

In light of the expert's testimony, and given the previous disclosures by the expert on his income as an expert, the court did not believe that the plaintiff had shown that an answer to the question would show bias on the part of the expert and the court was convinced that the additional information sought by the plaintiff was "overkill" and "needlessly intrusive" of the expert's privacy.  Accordingly, the plaintiff's motion to compel a response from the expert was denied.

Anyone desiring a copy of this case may call the Pennsylvania Instant Case Service offered by the Pennsylvania Law Weekly (800-276-PICS) to order a copy at a small fee.

Source:  Article entitled "Judge Refuses to Reveal Expert Witness' Annual Income" by Shannon P. Duffy in the August 24, 2011 edition of The Legal Intelligencer.

Tuesday, August 23, 2011

Former Judge Conahan to be Sentenced on September 23, 2011

Former Luzerne County Judge Michael T. Conahan will be sentenced by Federal Middle District Judge Edwin M. Kosik on corruption charges on Sept. 23 at 9:30 a.m. in the Federal Courthouse in Scranton.

Conahan pleaded guilty last year to a federal racketeering charge that carries with it a maximum possible sentence of twenty years in prison.

Judge Amesbury of Luzerne County Addresses Future Medical Expenses Claims in Auto Accident Case

In his April 15, 2011 Opinion in the case of Ferraro v. Knies, 101 Luz. Reg. Reports 94, No. 9543-Civil-2008 (Luz. Co. April 15, 2011, Amesbury, J.), Luzerne County Court of Common Pleas Judge William Amesbury addressed the issue of the handling of future medical expenses claims in automobile accident civil litigation.

In this matter, the limited tort Plaintiff was injured as a result of a motor vehicle accident. After a trial, a Luzerne County jury returned a verdict in favor of the Plaintiff awarding damages totaling $200,000.00. Part of that award consisted of a $140,000.00 in damages for future medical expenses.

The defense relied upon 75 Pa. C.S. §1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law to argue that the Plaintiff’s recovery of future medical expenses should be precluded based upon the fact that the Plaintiff was using health coverage that was provided by her current employer to pay for her medical expenses.

Plaintiff’s counsel initially argued that §1722 was not applicable because the Plaintiff’s healthcare provider was either an ERISA Plan or an HMO, which exempted it from the statutory preclusion of recovering medical expenses and gave the health insurance provider a right of subrogation which would justify and permit a recovery of an award for future medical expenses in this matter.

The Court noted, however, that it was subsequently determined that the healthcare plan was neither an ERISA plan nor an HMO and, therefore, Plaintiff’s argument was reduced to the determination of whether the future medical expenses were precluded under the argument that they were “paid or payable” as that term is defined under §1722.  Section 1722 provides that were an injured party's medical expenses are "paid or payable" by certain entities or carriers, they are not recoverable in motor vehicle accident cases.

At an evidentiary hearing on whether the Plaintiff's future medical expenses would be "payable," the Plaintiff testified that she incurred out-of-pocket expenses of $40.00 per treatment because the healthcare plan treated that expense as a co-pay. The Plaintiff additionally produced documents and testimony to confirm that there was an annual $7,500.00 deductible before payment for the healthcare services would be covered by the health insurance.

In his Opinion, Judge Amesbury noted the Plaintiff’s treating physician gave testimony that provided a range as to expected future medical expenses. The jury was also instructed that the Plaintiff had an additional 40 year life expectancy according to the accepted statistical tables. As such, Judge Amesbury noted that the $140,000.00 awarded by the jury for future medical expenses divided by 40 years was approximately $4,500.00 per year.

Judge Amesbury went on to note that, based upon the testimony provided by the Plaintiff at the evidentiary hearing regarding her co-pay and the deductible of $7,500.00, the Plaintiff’s out-of-pocket payments would exceed the future projections of the jury. Accordingly, Judge Amesbury held that accepting a jury’s verdict would not result in a windfall or a double recovery to the Plaintiff.

Judge Amesbury found that “the future medical damage award of $140,000.00 [was] purely compensatory, not providing a windfall or dual recovery and specifically not “payable” so as to be precluded by §1722 of the Motor Vehicle Financial Responsibility Law.” See Opinion at p. 103.

Although the Court allowed the Plaintiff’s jury award of future medical expenses to stand, the Court rejected the Plaintiff’s request for delay damages on that portion of the verdict. Having not been provided with any legal authority to support delay damages on an award for future medical expenses, Judge Amesbury declined to award the same.

He did, however, allow for delay damages on the jury’s award for future pain and suffering as that has previously been permitted by the Pennsylvania Superior Court in the case of Gross v. Johns-Manville Corp., 600 A.2d 558 (Pa. Super. 1991), appeal denied, Fiberboard Corp. v. Gross, 613 A.2d 559 (Pa. 1992).

Anyone desiring a copy of Judge Amesbury’s Opinion in the case of Ferraro v. Knies may contact me at

For more analysis on this future medical expenses issue in another Tort Talk post, including a review of decisions by Judge Terrence Nealon of Lackawanna County and Judge James Munley of the Federal Middle District Court of Pennsylvania, click here.

Sunday, August 21, 2011

REGISTER NOW: Seats Remain for This Week's CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA



Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.
for their 50 Years in Practice of Law

Sponsored by






Wednesday August 24, 2010
12:30 p.m. to 4:30 p.m.


2 Substantive & 1 Ethics CLE Credits
Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge

Cost 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, pleas e-mail David Cole, Executive Director of the PDI at




Thursday, August 18, 2011

Spoliation of Evidence Sanction Granted Against A Plaintiff

In the case of Pa. Trust v. Dorel Juv. Grp.,  2011 WL 2789336, No. 07-4029 (E.D.Pa. July 18, 2011 Schiller, J.), the Eastern District Federal Court imposed a spoliation sanction against a plaintiff in a an auto accident case in which a claim was made that a child booster seat was improperly designed.

After noting that the plaintiff failed to take pictures of the seat before signing the title over to the towing service following the accident, the court found that the elements to support a spoliation sanction were established by the defense. 

The court precluded the plaintiff's testimony regarding the use of the child booster seat on the day of the accident and granted the defense an adverse inference jury instruction.

This Opinion may be viewed online here.

Pennsylvania Supreme Court Plans to Televise its Proceedings

According to an August 15, 2011 article in The Legal Intellegencer by Ben Present entitled "PA Supreme Court to Televise Arguments," the Pennsylvania Supreme Court has announced its intention to allow its proceedings to be televised on the Pennsylvania Cable Network.  The televising of the proceedings, which will not air live, is set to begin in the near future.  The cameras will be set up to allow for a wide angle shot of all of the justices as well as close-ups of the Justices when they speak as well as of the arguing attorneys.

How long will it be before make-up artists start advertising their services to attorneys just as court reporters, subpoena vendors, and private investigators do?

Tuesday, August 16, 2011

Former Judge Michael Toole of Luzerne County and Former Superior Court Judge Michael T. Joyce Sanctioned by Court of Judicial Discipline

On July 26, 2011, the Commonwealth of Pennsylvania Court of Judicial Discipline in Pennsylvania issued Orders sanctioning former Luzerne County Judge Michael Toole and former Superior Court Judge Michael T. Joyce officially removing them from the bench and prohibiting them from ever holding judicial office again in the Commonwealth of Pennsylvania.

The Court of Judicial Discipline filings and findings with regards to former Luzerne County Judge Michael Toole can be viewed here , here, and here.

The Court of Judicial Discipline filings and findings with regards to former Superior Court Judge Michael T. Joyce can be viewed here, here, and here.

Source of news tip:  August 16, 2011 news article in The Legal Intelligencer by Zack Needles entitled "Court of Judicial Discipline's Order May Cost Joyce Pension."

Municipality Immune From Suit Involving Car Accident Caused by Black Ice on Roadway

In its July 18, 2011 decision in the case of Page v. City of Philadelphia, 2011 WL 2749671, No. 1542 C.D. 2010 (Pa.Cmwlth. July 18, 2011, McGinley, Brobson, Friedman, J.J.)(Opinion by Friedman, S.J.), the Commonwealth Court of Pennsylvania affirmed the entry of a summary judgment in favor of municipality defendants against a claim that the subject car accident was caused by black ice.

The Plaintiffs had claimed that the black ice developed on the roadway by the melting an re-freezing of improperly removed snow and ice.  The Court found that real estate exception and the streets exception to sovereign immunity and governmental immunity were inapplicable because the ice did not derive or originate from the roadway and because the ice was not caused by an improper design or inherent defect of the street itself.

The Opinion in Page v. City of Philadelphia can be viewed online here.

Sunday, August 14, 2011

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

On August 5, 2011, in the case of Knott v. Walters and Nationwide Mutual Automobile Ins. Co., No. 2010 CV 4745 (Lacka. Co. Aug. 5, 2011, Mazzoni, J.),  Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas issued another decision, by way of a detailed Order, in favor of the consolidation of post-Koken cases, at least through the pre-trial stage.  In the Order, the court denied the preliminary objections filed by the tortfeasor defendant claiming, in part, a misjoinder of actions under the Pennsylvania Rules of Civil Procedure.

In so ruling, Judge Mazzoni cited to his own previous Opinion on the same issue in the case of Richards v. McPhillips and Progressive Ins. Co., No. 2010 CV 7020 (Lacka. Co. June 10, 2011, Mazzoni, J.) as well as the Opinion of fellow Lackawanna County Judge Terrence Nealon in the case of Bingham v. Voswistilo, 2010 CV 6026 (Lacka. Co. April 8, 2011 Nealon, J.).

The majority rule in Lackawanna County on this issue is that the cases will remain consolidated at least up through the time of trial.  In their respective decisions, both Judge Mazzoni and Judge Nealon expressly state that, at the time of trial, the assigned trial judge shall retain the discretion to address motions to bifurcate or sever the claims presented.

I thank the prevailing Plaintiff's attorney in the Knott case, Attorney Doug Yazinski of the Pisanchyn Law Firm, for bringing the Knott decision to my attention.

Anyone desiring a copy of any of the decisions noted above may contact me at

A Review of Tools on Tort Talk

There are a number of tools on Tort Talk ( I wanted to highlight by way of this post.

First of all, I have updated the Post-Koken Scorecard as of today to add a number of new decisions that were already previously reported on Tort Talk.  To make the Scorecard more orderly, I also put the various county listings in alphabetical order.  Within each county listing of cases, I have tried to list the oldest cases first and add the more recent decisions at the bottom of each listing.

You can always access the Post-Koken cases to check on the status of decisions in your county at issue by scrolling down the right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Speaking of Labels, that's another tool that you can use to find cases or articles on a specific topic.  If you scroll further down the right hand column of the blog, you will find a section marked "Labels" with a variety of topics listed thereunder.  By clicking on the Label that's specific to your research, you will be sent to a page that list each and every Tort Talk post that touches upon that topic.  You can then click on each title to read further.

Another way to conduct research on a particular topic is to use the "Search This Blog" tool that is closer to the top of the right hand column of the blog.  By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic.  You can then click on each post to read further.

Down in the middle of the right hand column of the blog is also a box under the Label "My Published Articles" in which are listed some of the most recently published articles of mine that have been posted online at the website.  If you are looking for older articles you can always click on the JDSupra box to go to that site where a full listing of the articles can be accessed and searched.

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have tipped me off to breaking news and cases of note.  I am grateful for your interest and support.  If I should be able to provide you with any assistance on any matters you may have in the Northeastern Pennsylvania region where I practice, or if I can possibly help out in any other way, please do not hesitate to contact me at


Thursday, August 11, 2011

Former Judge Ciavarella Sentenced to 28 Years in Prison

This morning Federal Middle District Court Judge Edwin M. Kosik handed down the sentence against former Luzerne County Judge Mark A. Ciavarella sending him to prison for 28 years (336 months).  Ciavarella is 61 years old.  Judge Kosik also immediately remanded Ciavarella to prision as opposed to allowing him to go free on bail to put his affairs in order.

Currently, there are still no sentencing dates scheduled yet for other figures associated with this matter, including former Judge Michael Conahan and attorney Robert Powell.

Wednesday, August 10, 2011

Senior Judge Thomson Addresses Spoliation Issue in Lackawanna County Slip and Fall Case

In his July 6, 2011 Opinion and Order in the Lackawanna County slip and fall case of Trently v. Giant Food Stores, LLC, No. 2008-CIV-3961 (Lacka. Co. July 6, 2011 Thomson, S.J.), Senior Judge Harold A. Thomson, Jr. denied the Defendant's Motion for Summary Judgment after finding genuine issues of material fact on the actual or constructive notice issue existed. 

The court also appeared to be influenced in its decision to deny the Defendant's motion given the Plaintiff's assertion of spoliation of evidence on the part of the Defendant given the possible failure of the defense to produce a surveillance videotape of the Plaintiff's incident.

Judge Thomson's Opinion gives a nice recitation of the current status of the law on the duties of store owners to its business invitees along with the standards applicable to actual or constructive notice evidence.

In this case, the Court noted that the Plaintiff allegedly slipped on a puddle of a brown substance that was located on the store's white floor in close proximity to the checkout counters where the store's cashiers were working.  Judge Thomson accepted the Plaintiff's argument that the motion for summary judgment was untimely in that there were still depositions of relevant witnesses to be completed, including the cashiers.  The Plaintiff also asserted that factual issues existed on the notice issue given the number of store employees that were in the vicinity of the fall at the time of the incident.

Judge Thomson also touched upon the law of spoliation and found that additional material factual issues existed in this regard in that there was evidence that the Defendant's store manager first indicated his belief that there was a videotape of the incident that was reviewed, yet later, it was learned that there was no tape in existence.

Based upon all of these issues, the court denied the Defendant store's motion for summary judgment and allowed the case to proceed.

Anyone desiring a copy of this Opinion by Judge Thomson in the case of Trently v. Giant Food Stores, LLC may contact me at

I thank the prevailing Plaintiff's attorney, Thomas Holmes, Esquire of Scranton, Pennsylvania for bringing this decision to my attention.

Image from

Monday, August 8, 2011

Appellate Ruling That UIM Offset Includes Umbrella Policy Limits Stands

The Pennsylvania Supreme Court has denied allocatur in the two companion underinsured motorist cases of D'Adamo v. Erie Ins. Exchange and Holocher v. Erie Ins. Exchange, thereby allowing to stand a Superior Court panel's ruling that benefits collected under a tortfeasor's umbrella insurance policy can serve as an offset against the amount of recoverable underinsured motorist benefits in a given matter.

Source:  Article in August 9, 2011 Pennsylvania Law Weekly entitled "High Court Won't Mull Umbrella Policy Offsets in UIM Cases."

Here is a link to my prior Tort Talk post on an article of mine in which the D'Adamo case is summarized:

Recent UM Coverage Decision By Judge Wettick of Allegheny County

In his recent Opinion in the case of Cubakovic v. GEICO, No. GD08-0004237 (Alleg. Co. April 6, 2011 Wettick, J.), Judge R. Stanton Wettick addressed a UM coverage issue that involved a construction of the definition of an "insured" under a GEICO insurance policy.

According to the Opinion, the Plaintiff, Brian Cubakovic, was injured while riding as a passenger in a rental vehicle driven by a Robert Veinovich.

At the time of the accident, the driver of the rental vehicle owned one vehicle that was insured by GEICO.  The Plaintiff himself owned a vehicle that was insured by State Farm.

Following the accident, the Plaintiff made a claim for UM coverage under the GEICO policy that covered the rental car driver's personal automobile.  Judge Wettick noted that if coverage was found, the GEICO policy would have been the primary coverage under the facts presented.

GEICO filed a motion for summary judgment asserting that its policy did not apply due to the definition of an insured found in the policy.  The Plaintiff and State Farm filed motions for summary judgment that coverage should apply.

Judge Wettick noted that the GEICO policy provided that GEICO would pay damages where the insured was legally entitled to recover from an uninsured driver.  An "insured" was defined in the policy, in pertinent part, as "any other person while occupying an owned auto."  [Emphasis added]. 

GEICO asserted that since the Plaintiff fell under the category of "any other person" under the terms of the policy, and since the Plaintiff was occupying a rental vehicle as opposed to an automobile "owned" by the GEICO insured, GEICO did not need to provide coverage.

The Plaintiff, however, pointed to language set forth in the Renewal Declarations of the policy which provided, as follows:

"As a GEICO Family Auto Policyholder, when you or your spouse (if residing with you) rents a car in the United States or Canada, the rental car is covered under your GEICO policy.  The same policy provisions and conditions, coverage limits and deductibles that apply to your personal car also apply to the rental car."

Judge Wettick construed this language to clearly state that any coverage provisions applicable to the insureds "personal" car also apply to the rental car.  He also rejected GEICO's contention that the policy deliberately used the term "personal car" rather than "owned auto" and that the two are not one and the same. 

In this regard, the court noted that there was no definition in the policy for "personal car" and that the term was not otherwise satisfactorily distinguished from the "owned auto" term.  Rather, in Judge Wettick's eyes the common meaning of a "personal car" would not cover a vehicle that a person did not own--as such the terms appeared to be interchangeable in this context.

The court also disagreed with GEICO's interpretation that the language of the Renewal Declarations was only referring to liability coverages and not UM coverages.

Finding the policy language at issue to be ambiguous, the court construed the terms in favor of the insured and against the insurer and found that the GEICO policy should provide the primary UM coverage under the facts presented.

Anyone desiring a copy of Judge Wettick's Opinion in the Cubakovic v. GEICO case may contact me at

I thank the prevailing State Farm counsel, Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this decision to my attention.

Thursday, August 4, 2011

REGISTER NOW TO SAVE YOUR SPOT - Seats Remain for August 24, 2011 CLE / Networking Event - Mohegan Sun Casino, Wilkes-Barre


Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.
for their 50 Years in Practice of Law

Sponsored by




Wednesday August 24, 2010
12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits

Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge
12:30 – 1:00 PM Registration

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

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

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




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

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


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

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



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

Judge Thomas Blewitt – Middle District Federal Magistrate Judge

Judge Thomas F. Burke, Jr. – President Judge of Luzerne County Court of Common Pleas

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

Moderator: Michael A. Genello, Esq. – Murphy, Piazza & Genello, P.C.

Course Planners:

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

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


Cost 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



Make checks payable to:

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

Tuesday, August 2, 2011

Post-Koken UIM Decision on Discovery Handed Down in Dauphin County

An article entitled "Dauphin County Judge Allows Discovery of UIM Claim Evaluation" and written by Ben Present that came out in the August 2, 2011 Pennsylvania Law Weekly is causing a stir across the Pennsylvania Auto Law Bar.

The article reports on a Order handed down by Dauphin County Judge Richard Lewis in the case of Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 27, 2011 Lewis, J.) in which the court allowed the Plaintiff to pursue, over the defendant's objection, discovery from the UIM carrier in a post-Koken case regarding the UIM carrier's evaluation of the claim presented.  The court also allowed the Plaintiff to complete the deposition of the claims representative on the same issues.

The court ruled against the defense's primary position that the claims representative's notes on the evaluation were protected from disclosure under Pennsylvania Rule of Civil Procedure 4003.3 that precluded discovery of the mental impressions, conclusions, and opinions of a representative of the defendant regarding the merit or value of a claim or defense.  Finding that the information was relevant to the claims presented, the court allowed for the discovery.  It was reported that this case settled shortly after the Order was issued.

It is noted that the issue did not come before the court by way of any formal motion and was addressed informally by the parties in letter briefs and without any oral argument.

It is noted that a review of the letter briefs filed confirms that neither of the parties involved in the Welcomer case cited to any of the other decisions noted below on this issue from around the Commonwealth, which while not binding in Dauphin County, could have been relied upon by the Judge as persuasive authority on the issue of whether discovery of the bases of a carrier’s evaluation, as well as the carrier’s reserve information, was permissible.

For example, in the post-Koken case of Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008, Wettick, J.), and again in Wutz v. Smith and State Farm, 2009 WL 2920956, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.), both of which involved the different context of a breach of contract claim for UIM benefits combined with a bad faith claim, Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas, who is considered to be the expert on the application of the rules of discovery to civil litigation matters in Pennsylvania, the court precluded the plaintiff’s efforts in discovery to secure the UIM carrier’s settlement evaluation information and reserve information until after the jury came back and issued a verdict in the initial trial on the UIM claim, which would then be followed by a bench trial on the bad faith claim.

In my estimation, a fair reading of Judge Wettick’s decisions leads to the conclusion that, if faced with only a breach of contract claim for UIM benefits that was not combined with a bad faith claim, Judge Wettick would likely rule that the discovery at issue was not permissible as the information sought was protected under the Rules of Civil Procedure which states that the mental impressions, opinions, and conclusions of representatives of a party are not discoverable, but rather, are privileged.

In a case out of Luzerne County, which I believe only involved a post-Koken breach of contract claim for UIM benefits and no bad faith claim, Judge Lewis W. Wetzel of the Luzerne County Court of Common Pleas also precluded this type of discovery in the case of Migatulski v. Eberis, et al., No. 7269-Civil-2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.).

The viewpoint that there is ample authority against the allowance of discovery of a claims representative's notes on the UIM carrier's evaluation of the claim presented in post-Koken matters is also supported by those cases in which the trial courts have allowed the deposition of a claims representative to go forward with the proviso that the deposition questions may not pertain to those areas protected by the Rules of Civil Procedure pertaining to discovery, i.e. questions may not pertain to the representative's mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense (Pa.R.C.P.4003.3).  See Paulewicz v. Fronczkewicz and State Farm, No. 10655 of 2009 Civil (Luz. Co. Feb. 1, 2010, Amesbury, J.)(In Order only, Court allows deposition of claims representative but precludes questions regarding mental impressions, conclusions or opinions regarding value of claim);  Liszka v. Ferro and GEICO, No. 109 - 2010 - Civil (Pike Co. March 20, 2011 Chelak, J.)(In an Opinion, Court denies motion for protective order by GEICO seeking to stop Plaintiff's deposition of claims representative; however, court cautions that deposition may only cover those areas allowed by Rules of Civil Procedure pertaining to discovery).

Anyone needing a copy of the above decisions may contact me at  It is noted that there may also be other decisions out there on this issue that have not yet been publicized.

En Banc Rehearing in Tristani (DPW Lien Case) Denied

I recently reported on the case of Tristani v. Richman,  No. 09-3537, No. 09-3538 (3rd Cir. June 29, 2011 Sloviter, Hardiman, Pollak, J.) (Opinion by Hardiman) (Pollak, dissenting), in which the Third Circuit Court of Appeals upheld the right of the Pennsylvania Department of Public Welfare to pursue its lien in personal injury matters.  Here's a link to the Tort Talk post on that topic:

I have been advised that the Petition for Rehearing En Banc in this case was denied last week.  I thank Attorney Patrick J. Loughren of the Pittsburgh law firm of Loughren, Loughren & Loughren PC for the update.

Judge Terrence R. Nealon of Lackawanna County Addresses Propriety of Pleadings in Complaint in Medical Malpractice Case

In his decision handed down last week in the medical malpractice case of Carroll v. Singh et al. No. 2011-CV-2528 (Lacka. Co. July 25, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues raised by the Defendants in their Preliminary Objections to the Plaintiff's Complaint.

In this case, the Plaintiff underwent a laparoscopic gallbladder surgery, after which he had intense left arm pain. According to the operative report, during the surgery, “arm board restraints were noted for the right arm and…the left arm was tucked.” Following the surgery, the Plaintiff was eventually diagnosed with a brachial plexitis. This left arm condition allegedly worsened and the Plaintiff asserted in his Complaint that, due to improper positioning of his left arm during the surgery, he was caused to developed a brachial plexus injury and a related reflex sympathetic dystrophy

In this case, the Defendants objected to certain subparagraphs of the complaint as lacking sufficient specificity under Connor v. Allegheny General Hosp., 501 Pa. 306, 311 n. 3, 461 A.2d 600, 603 n. 3 (1983). The Defendants also sought to strike the Plaintiff’s allegations of “recklessness” based upon the facts alleged in the Complaint. The Defendants additionally requested the court to strike the Plaintiff’s agency allegations on the ground that Carroll had not specifically identified all individuals who purportedly acted as agents or employees of the Defendant's respective offices.

With regards to the Defendant’s Connor Preliminary Objections, the Court sustained the Objections in part and denied them in part. With regards to those allegations in the Complaint that were found to be possibly not specific enough, Judge Nealon followed the practice in the Lackawanna County Court of Common Pleas of allowing the Plaintiff to conduct discovery within a limited period of time to seek out information to make such allegations more specific by way of an amendment to the Complaint. The Court noted that if the Plaintiff was unable to make the allegations at issue more specific they would be stricken from the Complaint.

With regards to the allegations of reckless conduct asserted against the Defendants, the Court found that the factual allegations only amounted to ordinary negligence claims. Judge Nealon also noted that there were no specific requests for punitive damages noted anywhere in the Complaint. As such, the allegations of recklessness were stricken from the Complaint from the Complaint.

On the agency issue, Judge Nealon provided a thorough review of the case law on the requirements of proper pleading in this regard. He then took the same approach of allowing the Plaintiff a limited amount of time to conduct discovery on the agency issue to determine if the allegations could be made more specific in terms of the identities of the medical personnel involved. If information was discovered, the Complaint could be amended and made more specific; otherwise, such allegations would be stricken from the Complaint as not specific enough under the Rules of Civil Procedure pertaining to pleading.

Anyone desiring a copy of Judge Nealon’s opinion in the case of Carroll v. Singh, et al. may contact me at