Wednesday, June 27, 2012

Article Published in Claims Management Magazine

An article of mine, "Five Things Claims Managers Wish Adjusters Would Do (Or Not Do)," was recently published as one of the Cover stories for the June 2012 edition of the nationally distributed Claims Management magazine, a publication of the Claims and Litigation Management Alliance (

Anyone wishing to review the article, may click this Link:

Judge Lesa Gelb of Luzerne County Denies Post-Koken Motions to Bifurcate Trial - Twice

Judge Lesa Gelb of the Luzerne County Court of Common Pleas recently handed down a pair of Orders on June 20, 2012 each separately dealing with a defendant’s Motion to Sever the trial of the tort and UIM claims in two different post-Koken litigation matters.

Judge Gelb refused to sever the claims for trial in each of the cases. In two unrelated cases that were argued before Judge Gelb - Loefflad v Nauks & Allstate Fire & Casualty Ins. Co., No. 8673 of 2010 (C.P. Luz. Co. June 20, 2012) and Price v Price, Auto Glass Unlimited & State Farm, No. 13625 of 2010(C.P. Luz. Co. June 20, 2012) - the tortfeasor defendant had filed a Motion for Severance of the tort and UIM claims for trial. Defense counsel in each case essentially argued that the tortfeasors would be prejudiced by the introduction of evidence of insurance issues at trial and that severance was necessary to avoid this prejudice.

Plaintiffs' counsel, which included Attorney Richard A. Russo of the Wilkes-Barre, PA law firm of Rosenn, Jenkins & Greenwald in the Loefflad case and Attorney Neil T. O'Donnell of the Kingston, PA O'Donnell Law Office in the Price case, essentially argued that any evidence of insurance would not run afoul of Pa.R.E. 411 as it would not be offered to prove that the tortfeasor was liable. Instead, it would be offered against the UIM carrier to prove the UIM claim, and the court could avoid any prejudice or confusion by artfully drafted instructions identifying the parties and their relationship to and involvement in the controversy.

Plaintiffs' counsel in each case also reportedly both pointed out to the Court that State Farm, who was the liability carrier in Loefflad and both the liability and UIM carrier in Price, specifically mandated in its policies that the tortfeasor must be included in a lawsuit against State Farm seeking UIM benefits, and that the State Farm policy language also required that a judgment be secured against the tortfeasor in that action.

As noted above, the motions to bifurcate the claims for trial were denied by the court in both of these cases, which are apparently decisions of first impression in Luzerne County.  Anyone desiring a copy of the one-line Orders issued by Judge Gelb in the Loefflad case and/or the Price case may contact me at

I note the only other decision that I have come across so far on the issues presented by a motion to bifurcate post-Koken liability and UIM claims is the Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.) decision out of Lehigh County in which the court granted the defendant's motion for bifurcation, in part, to avoid the prejudice that could be brought on by the introduction of insurance issues at trial. 

To view the Tort Talk write-up on the Purta case, click this LINK.

It appears that we now have the beginnings of another split of authority on another issue of importance in Post-Koken litigation.

Sunday, June 24, 2012

Evidence of Plaintiff's Prior Accidents Precluded in Lackawanna County Car Accident Trial

In his recent Opinion in the automobile accident case of Bodnar v. Mesko, No. 2009 - CIVIL - 6062 (C.P. Lacka. Co. June 11, 2012 Nealon, J.), Judge Terrence R. Nealon addressed a plaintiff's pre-trial motion in limine to preclude evidence of the plaintiff's prior accidents as irrelevant and prejudicial.

In this case involving a 2009 motor vehicle accident that allegedly caused the plaintiff neck and back injuries, the defense wanted to introduce evidence of the plaintiff's prior 1997 trip and fall event and a prior 1998 motor vehicle accident after both of which the plaintiff had neck and back complaints.

After reviewing the pertinent case law, as well as the Pennsylvania Suggested Standard Civil Jury Instruction 7.90 ("Other Contributing Causes"), Judge Nealon ruled that evidence of previous medical complaints must be sufficiently connected to the complaints at issue so as to raise an inference of the existence of related pre-existing conditions; where such a connection is not established through expert testimony, evidence of the prior accidents or injuries will be precluded as irrelevant and inadmissible.

Here, where there was no evidence of any sustained neck or back complaints or treatment during the time between 1997 and 2009, the court ruled that the defense had not sufficiently connected the plaintiff's current alleged neck and back complaints back to the plaintiff's prior incidents.  The court pointed out that the defense medical expert in this case did not opine that the plaintiff's current complaints were traceable back to the 1997 or 1998 events.  As such, evidence of the specific, prior incidents were found to be irrelevant and prejudicial and evidence of the same was precluded by the court. 

The defense was, however, allowed to more generally argue, based upon the defense medical expert's opinion, that the plaintiff's neck and back complaints after the subject accident were due to pre-existing degenerative changes in the plaintiff's spine.

Anyone desiring a copy of this Opinion by Judge Nealon in the Bodnar case may click this LINK.

Thursday, June 21, 2012

Summary Judgment Granted in Lackawanna County Defamation Case

In his recent decision in the case of Nasser v. Cooper, No. 2007 - Civil - 1390 (C.P. Lacka. Co. June 7, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled on a summary judgment motion arising out of a case involving accountants who sued their former client for slander based upon defamatory statements allegedly made.  
Judge Terrence R. Nealon
The former client filed a motion for summary judgment on the grounds that the Plaintiffs could not make out a prima facie case for defamation under 42 Pa.C.S. 8343(a).

The court granted summary judgment after finding that, based upon several reasons, the Plaintiffs had not sustained their burden of proof to get beyond the summary judgment stage.

In his Opinion, Judge Nealon thoroughly reviewed a variety of issues in defamation law, including the need for (1) admissible hearsay evidence of publication or procurement of republication, (2) defamatory meaning of the publication, and (3) proof of special damages.

Anyone wishing to review this Opinion in Nasser v. Cooper by Judge Nealon may click this LINK.

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Tuesday, June 19, 2012

Courts Continue to Refuse to Look Into Crystal Ball in Terms of Future Medical Expenses Awards

In the recent Lehigh County Court of Common Pleas case of Knauss v. Deery, No. 2010 - Civil - 1619 (C.P. Lehigh Co. June 7, 2012 Johnson, J.), Judge J. Brian Johnson addressed a Defendant's post-trial motion which, in part, sought to reduce a Plaintiff's future medical expenses recovery under the provisions of Pennsylvania's Motor Vehicle Financial Responsibility Law.

The Knauss case was a third party lawsuit arising out of a motor vehicle accident that occurred while the Plaintiff was within the scope and course of her employment.  After the Plaintiff obtained a verdict that included $28,000 in future medical expenses, the Defendant filed a post-trial motion to mold that portion of the verdict to zero.

The Defendant argued that although the Plaintiff's employer's worker's compensation insurance carrier most likely would be responsible for any future medical expenses allegedly related to the accident at issue, and thus, Plaintiff would be entitled to recover the same during trial as there would be a lien, if the worker's compensation insurance carrier should deny the claim at some point in the future, the future medical bills would be paid for, and or be payable by, Plaintiff's first party medical insurance benefits, which were $100,000.00 and which were not exhausted.

The trial court rejected this "speculation" that the worker's compensation carrier might stop paying medical benefits in the future and allowed the future medical expenses award to stand.  Anyone desiring a copy of this Knauss v. Deery decision may click this LINK.

I note that the court's rejection of this argument by the Defendant is similar to other courts' rejections of the speculative arguments by Plaintiffs that their future medical expenses awards should not be reduced by the amount of the remaining PIP benefits available under a Plaintiff's own automobile insurance carrier on account that that insurance company could go out of business in the future or may otherwise refuse to continue to pay such benefits.  For other Tort Talk posts on this future medical expenses issue click HERE.

I send thanks to the prevailing Plaintiff's attorney Jeremy D. Puglia of the Doylestown, PA law office of Drake, Hileman & Davis, P.C. for bringing this case to my attention.

Friday, June 15, 2012


The Legal Intelligencer and the Pennsylvania Law Weekly have just gone live with the SMART LITIGATOR website, a new online legal research site designed by and for Pennsylvania practitioners. The site is designed to simplify legal research and, unlike other research sites, offers forms that are tailored to Pennsylvania civil litigation matters. For more detailed information, click here.

I was selected to be a Founding Board Member of the site and I have assisted in gathering a variety of forms and articles to add content to the site.

There is currently an offer to try the site for a limited time for FREE. If you are interested, click here to check it out.

Thursday, June 14, 2012

Show Me the Money

In the recent Allegheny County Court of Common Pleas decision by Judge R. Stanton Wettick in the case of Wimberly v. Katruska, PICS Case No. 12-1060 (C.P. Allegheny Co. May 23, 2012 Wettick, J.), the Court addressed the recurring issue of personal injury settlements being held up by Medicare issues.
Judge R. Stanton Wettick
In this matter, a Plaintiff settled her personal injury claims and demanded payment. Apparently, the Defendant and the Defendant’s carrier refused to issue the settlement payment until the Plaintiff provided a no-lien letter from Medicare. Accordingly, the Plaintiff filed a Petition to Enforce the Settlement.

According to a report on this opinion, Judge Wettick noted that, under the Medicare Secondary Payer Act (MSPA), Medicare can only pay bills not paid by a “primary payer.” Under the law, if Medicare makes a payment and a primary payer is identified, the primary payer must reimburse the United States government for the payment made.

The MSPA identifies an automobile or liability insurance policy as a primary payer. Therefore, under the law, if an insurance company has already made a payment for the same services, the insurance company paying the settlement amount can be required to reimburse Medicare under the applicable regulations. The regulations also give Medicare and the Centers for Medicare Services (CMS) a direct right of action to recover from any primary payer.

In this Wimberly case, the Defendant argued that his insurance company was entitled to withhold payment until Medicare issued a no-lien letter because that was the only way an insurance company and its insured could avoid double payments.

Judge Wettick rejected this argument and pointed to the Superior Court decision of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010), under which the Superior Court rejected a similar argument because the MSPA was not designed to enable private parties to act on behalf of the United States Government in securing reimbursement to Medicare.

However, because the Defendant in this Wimberly matter contended that the parties’ settlement agreement conditioned payment on the receipt of a no-lien letter, the Court issued a rule to show cause why the settlement agreement should not be enforced. In issuing the Rule, the Court noted that the Defendant had the burden of establishing an agreement that the payment was conditioned on a no-lien letter.

For other Tort Talk posts on other similar cases addressing the same issue, click here. Anyone desiring a copy of the Wimberly v. Katruska Opinion may contact the Pennsylvania Law Weekly’s Instant Case Service at 1-800-276-7427 and give the above PICS Case No and pay a small fee.

Source of

Wednesday, June 13, 2012




July 19-20, 2012

Bedford Springs Resort & Spa
Bedford, Pennsylvania

· Agenda highlights include presentations by Pennsylvania Governor Thomas Corbett and Insurance Commissioner Michael Consedine! There are also presentations on “Post-Koken Auto and Bad Faith Practice” and on “Insurance Fraud and Medical Billing Fraud”. There is also an ethics update for that elusive one hour of ethics CLE credit we all need.

· The 2012 Conference also provides for substantive law committee meetings. So, plan to attend the committee meeting of your choice and network with other PDI members in your area of practice. CLE credit is offered for participation in these meetings. To date, the Motor Vehicle, Employment Law & Civil Rights, and the Products Liability Committees plan to conduct meetings.

· As you know, PDI’s Annual Conference is not all work! We will have our traditional Presidents Reception on Thursday evening. We are also arranging with Bedford Springs activities for the whole family, including golf, hiking, biking, a cooking demonstration and a scavenger hunt. We have not even mentioned the spa and pool that Bedford Springs is famous for! And, there are off-site activities including antique shops, Old Bedford Village, covered bridges tours, Fort Bedford Museum, Gravity Hill and more. So, plan to bring the whole family this year!

· Registration material is being mailed to all PDI members. The charge for lawyers will again be $325 for all events this year. And, again this year there is no charge for insurance claim representatives to attend. We have also again negotiated a reduced rate for golfers of $100 (including cart and greens fee). In the meantime, please make your room reservations with Bedford Springs by June 25 to receive the reduced PDI room rate by e-mailing Bedford Springs at:

or by calling 814-623-8100 and mentioning you are attending the PDI Conference to secure the PDI room rate.

Here is a link to the Registration Form:

Thursday, June 7, 2012

Massachusetts Teen Guilty in Deadly Texting-While-Driving Car Accident

Here's a link to an article from the June 7, 2012 USA Today (Associated Press) regarding a teenager who was found guilty in a Massachusetts criminal court for vehicular homicide and negligent operation while texting in terms of a February, 2011 motor vehicle accident:

Some commentators are noting that this is the first conviction in the nation of this kind.

For other texting-while-driving or cell phone use blog posts here on Tort Talk, click here.

Wednesday, June 6, 2012

Upcoming PDI CLE Seminar - June 29 - Pittsburgh


“General Principles of Insurance Claims Handling, Considerations in
Handling Non-Litigation Claims, and Insurance Bad Faith in Pennsylvania”
Pietragallo, Gordon, Alfano, Bosick & Raspanti
Pittsburgh, PA

Friday, June 29, 2012

8:30 – 9:00 AM Registration

“General Principles of Insurance Claims Handling”

9:00 – 9:30 AM -Insurance Company Operations
Sharon Jones
Erie Insurance

9:30 – 10:30 AM -The Liability Insurance Policy

Mark Eck, Esquire
Meyer, Darragh, Buckler, Bebenek & Eck

10:30 – 10:45 AM Break

10:45 – 11:45 -The Claim Handling Process

Stuart Setcavage
State Farm Insurance

11:45 AM – 12:15 PM “Considerations in Handling Non-Litigation Claims – Part 1”

Scott Millhouse, Esquire
Meyer, Darragh, Buckler, Bebenek & Eck

12:15 – 12:45 PM Lunch

12:45 – 1:45 PM “Considerations in Handling Non-Litigation Claims – Part II”

Louis Long, Esquire
Pietragallo, Gordon, Alfano, Bosick & Raspanti

1:45 – 2:00 PM Break

2:00 – 4:00 PM “Insurance Bad Faith in Pennsylvania”

Christopher Jacobs, Esquire
Dapper, Baldasare, Benson, Behling & Kane

David Cole, Esquire
Litigation Consultant


$150 payable to “PDI”

Name(s): ____________________________________________________

Firm/Company: ________________________________________________

Judge Minora Again Addresses Medical Malpractice Emotional Distress Claims

In his recent decision in the case of Yadogua v. Dennis, No. 2009-CIV-53 (C.P. Lacka. Co. April 12, 2012 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a variety of issues raised in the Defendants’ Motions for Summary Judgment filed in this medical malpractice action.

The Yadogua decision represents another decision in which a relative was allowed to proceed beyond the summary judgment stage on a negligent infliction of emotional distress claim in the medical malpractice context under the bystander theory.  To view prior Tort Talk posts on this topic click here.

Although the court allowed the negligent infliction of emotional distress claim to proceed, it did grant the Defendants’ Motion in relation to the Plaintiff’s fraud count. The Court found that the Plaintiff failed to show an essential element of the fraud cause of action, that being any representation by the Defendants with the intent to mislead the Plaintiff as to the ability of the medical providers to provide appropriate care.

In this decision, Judge Minora also granted summary judgment on the Plaintiff’s claim for punitive damages as the record revealed that the Plaintiff’s allegations amounted to negligence-type claims and did not rise to the level of reckless indifference, willful, wanton, or reckless conduct required to support a claim for punitive damages.

Anyone desiring a copy of this decision may contact me at

Summary Judgment Granted in Lehigh County Slip and Fall on Slushy Ice Case

Judge Carol McGinley of the Lehigh County Court of Common Pleas recently entered summary judgment in favor of a Defendant in the case of Havir v. Fountain Hill Dev’t Associates, PICS Case No. 12-1003 (C.P. Lehigh Co. May 2, 2012 McGinley, J.).

The Court relied, in part, on the assumption of risk doctrine and found that the defendant was entitled to summary judgment where a Plaintiff voluntarily proceeded in the face of an obvious and dangerous condition when she chose to walk over a “slushy ice” in the parking lot of her apartment complex in an attempt to reach her car and slipped and fell.

According to reports on the opinion, the Plaintiff’s deposition testimony established that she knew that she was facing an obvious and dangerous condition. However, the Plaintiff attempted to argue that her decision to walk through the slush and ice was not voluntary because she did not have a reasonable alternative to get to her car.

The Court disagreed and found that the Plaintiff did not establish that she was compelled to get to her car or that she was precluded from safely returning to her apartment while she waited for the slush to be removed from the parking lot.

Accordingly, the Court found that the Defendants did not owe the Plaintiff a duty of care where the Plaintiff voluntarily proceeded in the face of an obvious and dangerous condition when she attempted to walk across the parking lot. As such, the Defendants’ Motion for Summary Judgment was granted.

A copy of this case can be secured from the Pennsylvania Law Weekly Instant Case Service by calling       1-800-276-7427 and providing the PICS Case number noted above.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 29, 2012).

Sunday, June 3, 2012

Pennsylvania Supreme Court to Address Validity of "Error in Judgment" Defense in Med Mal Cases

The Pennsylvania Supreme Court has agreed to address an appeal on whether medical malpractice Defendants may rely upon an “error in judgment” defense at trial. In the case of Passarello v. Grumbine, the court issued two orders on May 23, 2012 granting petitions for allowing to appeal the issue.

Tort talkers may recall that, in the Superior Court decision of Passarello v. Grumbine, that court granted a new trial to the Plaintiffs and retroactively applied it to a 2009 ruling in Pringle v. Rapaport, which banned the “error in judgment defense in medical malpractice cases.” Here is a LINK to the prior tort talk post on the Superior Court’s decision.

Source: Article: “Pa. Justices to Consider ‘Error in Judgment’ Med Mal Defense” by Zack Needles of  The Legal Intelligencer (May 29, 2012).

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Summary Judgment Granted in Monroe County Sidewalk Trip and Fall Case

Summary Judgment was granted in favor of the Defendants in the recent trip and fall case of Pietrowski v. Gallagher, PICS Case No. 12-0994 (C.P. Monroe Co. March 7, 2012 Zulick, J.).

Judge Arthur L. Zulick
Monroe County Cour of Common Pleas

In Pietrowski, Judge Arthur L. Zulick of the Monroe County Court of Common Pleas ruled that the rise or gap in a sidewalk surface was not significant enough to put the owner on notice of an allegedly dangerous condition. Given the law that a pedestrian bears the responsibility to avoid slight imperfections in the surface of a walkway, the court granted summary judgment in favor of the Defendants.

According to reports on the opinion, the Plaintiff fell in daylight conditions.  Both parties submitted photographs of the area in question. The photographs show that the gap was slightly irregular and that one slab of the sidewalk was raised about1/2 inch above the other. The court noted that Pennsylvania case law has held that up to a 2-inch gap is even not enough of a defect to impose liability on a property owner for failure to remedy or repair the alleged defect.

For other Tort Talk posts on other cases reviewing the Trivial Defect Doctrine, click here.

A copy of this case can be secured from the Pennsylvania Law Weekly Instant Case Service by calling 1-800-276-7427 and providing the PICS Case number noted above.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 29, 2012).