CLE AT THE PHILLIES GAME

Yesterday, I presented at a "CLE with the Phillies" at Citizens Bank Park in Philadelphia.  The facilities were nice as we were in medium-sized banquet room with the walls lined with pictures of favorite Phillies and a very large picture of the Phillies at the moment they were celebrating their 2008 World Series victory.  Concession stand food and beer and soda was served during the hour-long seminar.

Pointing to where my homerun's gonna go ala Babe Ruth

I presented a quick Civil Litigation Update, covering recent Post-Koken automobile litigation cases, a review of the split of authority on Facebook discovery, and some Pennsylvania Supreme Court cases to keep an eye out for.   I then presented my article "Little League Tips for Big League Lawyers" in which I applied Little League coaching tips ("Keep your eye on the ball,"  "Hustle," etc.) to the practice of law.

Anyone desiring a copy of my Civil Litigation Update and/or a copy of the article, may click this LINK for online access to the written materials from yesterday's program.

After what I hope was a seemingly quick and painless CLE hour for the attendees, we all headed off and enjoyed a beautiful, sunny 3-2 victory by the Fightin' Phils over the Mets.

The PBI plans to do these CLEs at the Philles, and possibly CLEs at the Pirates, next year.  It's a great way to pick up a CLE credit and enjoy a day out of the office.  I thank the Tara Phoenix and the PBI for allowing me to present at yesterday's game. 

I also thank J.P. Cardoni of EXHIBIT A for assisting with the powerpoint preparation and playback for the seminar.  I highly recommend EXHIBIT A, which has offices in Philadelphia and in Northeastern Pennsylvania, for all your video deposition and digital trial presentation needs.  Their website and contact info can be reached at www.exhibitadigital.com.

Thanks also--very much--to those who attended the seminar--I appreciate you making the trip.

Attention Shoppers

In the recent Decision of Parulski v. Dollar Tree Stores, Inc., Civil Action No. 3:11-CV-0614 (M.D. Pa. Aug. 13, 2012 Blewitt, M.J.), United States District Court of the Middle District of Pennsylvania Federal Magistrate Judge Blewitt issued an Opinion granting the Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, the Plaintiff alleged that the Defendant store would not allow the Plaintiff to carry her items that she had just purchased to her vehicle using a shopping cart due to security poles refraining shoppers from exiting the store with shopping carts. The Plaintiff also alleges that due to the Plaintiff’s having to carry her shopping bags and having to manually open the store’s non-automatic door, she was caused to suddenly fall to the ground and sustained serious injuries.

In ruling in favor of the Defendant, the Court noted, in part, that the undisputed evidence showed that the manner in which the Plaintiff attempted to carry the bags out the Defendant’s store through its door was an open and obvious danger to the Plaintiff. The Court went on to note that the carrying of too many packages in both hands and attempting to open a store’s non-automatic door by leaning into it with one’s shoulder was a danger that was known and obvious to the Plaintiff.

The Court also generally found that the Defendant did not create any dangerous condition by not allowing the shopping carts out the store or by failing to have automatic doors.

Judge Blewitt additionally found that the Plaintiff failed to prove that the Defendant had actual or constructive notice of any alleged dangerous condition. According to the Opinion, neither the Plaintiffs nor the Defendants submitted any evidence to indicate that a similar incident had occurred at this Dollar Tree Store in the past. The Court also reiterated that it was undisputed that the Defendant store’s door was not defective and the surface of the store’s floor was not defective.

Based upon the facts presented, including the Plaintiff’s deposition testimony, the court found that a reasonable person in the Defendant store’s position could not have prevented the Plaintiff’s injury as the decision to carry so many bags in both hands and the decision to lean on the store’s door with her shoulder to open it was all within the Plaintiff’s control.

The Court additionally reiterated that it found that no evidence was presented to prove that the Defendant store was in a position to prevent the Plaintiff’s injury as the store had no actual or constructive notice of any allegedly dangerous condition. The Court additionally found that the Plaintiff failed to establish that the Defendant’s alleged acts or omissions were the proximate cause of the Plaintiff’s damages. The Court concluded its Opinion by finding that the Defendant did not breach any duty owed to the Plaintiff. Accordingly, Judge Blewitt granted the Defendant’s Motion for Summary Judgment.

I send thanks to the prevailing defense attorney, Thomas Geroulo, Esquire of the Scranton office of Weber, Gallagher, Simpson, Stapleton, Firers & Newby, LLP for forwarding this Opinion to my attention.

Anyone wishing to review this decision may click this LINK.

Please Consider Nominating Tort Talk for the ABA Law Journal's Annual List of the Top 100 Blawgs

The deadline to nominate your favorite law blogs (blawgs) to the ABA Journal's list of Top 100 law blogs is September 7th. 

If you have the time and are willing to do so, here is a Link to the webpage where you can nominate Tort Talk (www.torttalk.com) to the list.  The "Blawg URL" for Tort Talk is the web address:  www.torttalk.com.

Thanks much.

Pennsylvania Federal Courts Continue to Struggle With Proper Standard for Products Liability Cases

In a recent decision in the case of Sanson v. Crown Equipments Corp., Civil Action No. 2:10-CV-0958 (W.D. Pa. July 24, 2012 Hornak, J.), Judge Mark R. Hornak of the United States District Court for the Western District of Pennsylvania tackled the uncertain status of Pennsylvania products liability law and the applicable standard of review.  

 

More specifically, there is a dispute in the Pennsylvania federal courts as to whether or not the Second or Third Restatement of Torts should apply to Pennsylvania products liability cases in Pennsylvania federal courts.  

 

Judge Hornak held that the Third Restatement applied but denied the Defendant’s Motion for Summary Judgment under both a Second and Third Restatement analysis.   In his Opinion, the judge called the term current status of Pennsylvania liability law as “a maze of uncertainty, providing little guidance to manufacturers….”  

 

Anyone wishing to view the Opinion in Sansom may click this link:

https://docs.google.com/open?id=0B83Pxa3TYcXMWjczYzRFQzc5ejg


I send thanks to Attorney Kenneth T. Newman of the law firm of Thomas, Thomas & Hafer for bringing this Opinion to my attention.

Pennsylvania Superior Court Addresses New Wrinkle in Sackett-Type Stacking Case

In its recent decision in the case of Shipp v. Phoenix Insurance Co., 2012 W.L. 3292939 (Pa. Super. Aug. 14, 2012) (Ford Elliot, P.J.E., Bender, and Colville, J.J.) (Opinion by Ford Elliot, P.J.E.), the Pennsylvania Superior Court addressed a variation of the Sackett-type issues and the application of 75 Pa. C.S.A. §1738 with regards to the need for an automobile insurance carrier to obtain a second waiver of stacked uninsured/underinsured coverage limits when the insured replaces an existing vehicle with a new vehicle.

The Court described the issue as involving the interpretation of §1738(c) and whether the addition and/or substitution of a new vehicle under an automobile insurance policy constitutes a purchase of additional UM/UIM coverage, requiring the insurance company to present the insured with a new opportunity to waive stacked coverage.

The Superior Court noted that this issue was “partially answered by [the Pennsylvania] Supreme Court in two separate decisions involving the same parties,” i.e., the Sackett I and Sackett II cases.

The Superior Court in this Shipp case noted that the Sackett Opinions dealt with the issue of additional vehicles being added to an automobile policy. In Shipp, Judge Ford Elliot noted that the “wrinkle in the case before us, and which distinguishes it from Sackett I, II or III, is the fact that there was no additional vehicle being added to the policy; rather, the new vehicle was a replacement for an existing vehicle. Thus, unlike Sacket, where the policy went from covering two vehicles to three, the instant policy continuously covered two vehicles only.

Since no additional vehicle was added to the policy, the Shipp court found that there was no change to the potential stacked UM/UIM coverage that was available under the policy ($200,000.00 stacked, $100,000.00 unstacked).

After reviewing the after-acquired vehicle clause in the policy at issue, the Court concluded that coverage on the replacement vehicle would continue uninterrupted as long as the insured gave notice to the insurance company. Under the case of Sackett II, it was held that continuing coverage subject only to a notice requirement did not require the insurance company to re-obtain a waiver. Accordingly, the Court ruled in this Shipp case that the initial waiver signed by the insureds was still valid and barred the stacking of coverage.

I note that I find these Sackett-type issues to be convoluted and I apologize if the above synopsis of the Shipp case is lacking in clarity.  Anyone wishing to review the decision for themselves may click this LINK.

I send thanks to attorney Steven K. DiLiberto, Esquire, Senior Counsel for the Claims Center General Counselor Group of Travelers Insurance Company for providing me with a copy of this case.

Another Court Holds That UIM Carrier Need Not File Motion To Mold to To Secure Credit Against UIM Award

Earlier this week I reported on the case of Sabella v. Nationwide Mut. Ins. Co., No. 1:12-CV-00582 (M.D. Pa. Aug. 14, 2012 Rambo, J.), in which Federal Middle District Court Judge Sylvia Rambo held that a UIM carrier need not file a Motion to Mold an Arbitration Award in order to have that award reduced by the amount of the credit due in the form of the tortfeasor's liability limits.

Since reporting on the Sabella case, I was advised of the decision of Mercer County Court of Common Pleas Judge Robert G. Yeatts in the same regard in the case of Whiting v. Erie Ins. Group, No. 2012-721 (C.P. Mercer Co. August 6, 2012 Yeatts, J.).

In Whiting, Judge Yeatts reduced a $70,000 UIM arbitration award by the amount of the tortfeasor's $50,000 liability limits over the objection by the Plaintiff that the UIM carrier had failed to file a motion or petition to mold the award. 

The court noted that the Plaintiffs had not provided any legal authority in support of their position that a motion or petition to mold after the entry of a UIM arbitration award was required.  Rather, the court agreed with the carrier's argument that the molding of the award was self-executing under the terms of the policy and/or an application of Pennsylvania law confirming that the UIM carrier was entitled to the credit.

The Whiting v. Erie Ins. case is on its way up to the Superior Court for review.  Anyone wishing to read the Whiting case may click this LINK

Anyone wishing to review the Sabella case on the same topic may click this LINK

I send thanks to Attorney William C. Wagner of the Erie law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC, the prevailing defense attorney in Whiting, for providing me with a copy of that decision.

Allegheny County Court of Common Pleas Rules That UIM Carrier Defendant Should be Identified At Post-Koken Trials

In the Allegheny Court of Common Pleas case of Stepanovich v. McGraw and State Farm Ins. Co., GD 10-16523 (C.P. Allegh. Co. July 31, 2012 O’Reilly, J.), Judge Timothy P. O’Reilly addressed issues raised in a Motion for a New Trial following a post-Koken combined trial of the third party and the UIM claims.  According to reports on this matter, the insurance company defendant was not identified at the trial.

Judge O’Reilly’s Order granted a new trial to the Plaintiffs in light of the failure to identify the UIM carrier at the trial.   To date, no Opinion has been issued yet.  In his Order, Judge O'Reilly granted the Motion for New Trial by finding, in part, that it was a denial of due process not to identify the insurance company at a post-Koken trial. 

This case is going up on appeal to the Pennsylvania Superior Court.  As such, an explanatory Rule 1925 Opinion is expected to be issued by the trial court to explain its ruling.  

The Superior Court's opinion on the issues presented will be a highly anticipated decision as being one of the first, if not the first time, that the Superior Court has squarely addressed important, recurring issues from a post-Koken cases.

As the initial post-Koken cases have now proceeded through the pleadings and discovery stages and have reached trial, we may begin to see a number of decisions coming out of the appellate courts to give much-needed and desired guidance on the myriad of issues the trial courts and the bar have struggled with over the past few years.

Anyone desiring a copy of the Court's Order in the Stepanovich case may contact me at dancummins@comcast.net.   

UIM Carrier Need Not File Motion to Mold To Obtain Credit Due Under Exhaustion Clause

In her recent decision of Sabella v. Nationwide Mut. Ins. Co., No. 1:12-CV-00582 (M.D. Pa. Aug. 14, 2012 Rambo, J.), Judge Sylvia Rambo of the Pennsylvania Federal Middle District Court granted Defendant Nationwide’s F.R.C.P. 12(b)(6) Motion to Dismiss for failure to state a claim in a matter in which the Plaintiff filed a Complaint setting forth claims for declaratory judgment, bad faith, and breach of contract, arising out of Nationwide’s alleged failure to pay UIM benefits to the Plaintiff in accordance with the terms of the insurance policy.  

In this matter, the UIM action between the parties had previously proceeded through arbitration pursuant to the terms of the policy.  At the arbitration, the panel of arbitrators unanimously found the valuation of damages to be $100,000.00.   In its award, the arbitrators stated that “[t]his amount has not been molded by the arbitrators and does not reflect what may have happened in the third-party action.”  

The Court in this matter noted that it was undisputed that the policy limit for the tortfeasor’s liability coverage was $300,000.00. 

Following the arbitrator’s decision, Nationwide did not move to mold the award.   The parties in this matter were in agreement that, if Nationwide had done so, by operation of law, Nationwide would have been entitled to a credit in the amount of the tortfeasor’s liability coverage, which, as noted, was $300,000.00.  This credit would have reduced the $100,000.00 UIM award to $0.  

In this matter, the Plaintiff was seeking a declaration that “the arbitration award is deemed a final judgment in the amount of $100,000.00 in light of the award and in light of Defendant’s failure to mold that award."  The Plaintiff requested damages in the amount of that award.   The Plaintiff’s bad faith and breach of contract claim were derivative to Plaintiff's belief that he was entitled to the arbitration award of $100,000.00.  Nationwide responded by filing the F.R.C.P. 12(b)(6) Motion to Dismiss.  

The District Court held that “A party’s failure to mold under these circumstances does not render the arbitrators’ award final and Nationwide is entitled to a credit of $300,000.00.  Accordingly, the amount of UIM coverage owed by Nationwide is $0.00.”  

In so ruling, Judge Rambo relied upon the case of Bremer v. Prudential Prop. & Cas. Ins. Co., 2004 U.S. Dist. LEXIS 16960 (M.D. Pa. 2004) (a case my partner Tim Foley and I defended and prevailed in).    Judge Rambo relied upon the Bremer case to support her following of the policy of enforcing exhaustion clauses.  

Judge Rambo also noted that her holding in the Sabella case is also consistent with Pennsylvania’s public policy against allowing parties to recover twice for the same injury.  In this regard, Judge Rambo cited, with approval the case of Pusl v. Means, 982 A.2d 550, 555 (Pa. Super. 2009).    Judge Rambo noted that the Court found in Pusl that an “Appellant’s receipt of both the full jury award from [tortfeasors] and the pre-trial UIM settlement from State Farm would constitute ‘double recovery’ that the [Pennsylvania Motor Vehicle Responsibility Law] was specifically designed to prevent.”  Id. at 556.  

Judge Rambo also noted that there was no case, rule, or statute on point which required the Defendant carrier to file a Motion to Mold under these facts.  

Accordingly, the Sabella court held that Nationwide was not required to file a Motion to Mold and was not responsible for any UIM payment to the Claimant under these facts.  

 Anyone desiring a copy of the decision of Sabella v. Nationwide may contact me at dancummins@comcast.net. 

I send thanks to Attorney Paul Oven of the Moosic, Pennsylvania office of Dougherty, Leventhal & Price as well as Attorney James Kilpatrick of Scranton law firm of Munley, Munley & Cartwright for forwarding this case to my attention.   I also send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt, Cramer for his explanatory synopsis of the case presented.  

Check Out CLE Courses Offered At Lawline.com

One of the new additions to the list of Tort Talk advertisers is Lawline.com, the leading online Continuing Legal Education (CLE) provider, has over 1,000 hours of content available to attorneys and other professionals. Accredited in over 40 states, Lawline gives viewers the option to view for free as well as purchase for required credit, giving all users the confidence in the quality of the courses before purchasing. To view any of the courses or for more information please visit www.lawline.com.

You may also access Lawline.com by clicking on the Lawline.com advertisement in the box in the upper right hand corner of the Tort Talk blog at www.torttalk.com.  For full disclosure purposes, I note that I will receive a referral fee from Lawline.com for every person that links to that site from Tort Talk and signs up for their Unlimited CLE program.

CLE Postponed to November 14, 2012

The Northeaster Pennsylvania Pennsylvania Defense Institute/Northeastern Pennsylvania Trial Lawyers Association CLE program originally scheduled for August 22 at Mohegan Sun Casino has been postponed to November 14, also at Mohegan Sun. The PDI/NEPATLA will shortly post the agenda and registration form for the re-scheduled program on the website. 

Please mark your calendar for November 14th for this CLE seminar along with the annual PDI/NEPATLA HOLIDAY HAPPY HOUR which will take place at the same location following the seminar.


For more information, contact:


David Cole
Executive Director
Pennsylvania Defense Institute

P: 800-734-0737

E: coled01@padefense.org

Punitive Damages Claim Against Diabetic Defendant Driver Allowed to Stand

In the case of Behler v. Smith, No. C-48-CV-2011-2443 (C.P. Northampton Co. Nov. 2, 2011 Koury, Jr., J.), Judge Michael J. Koury of the Northampton Court of Common Pleas addressed a Defendant’s Preliminary Objections in the nature of a demurrer to the Plaintiff’s claim for punitive damages with regard to a diabetic Defendant driver's failure to monitor his sugar levels prior to a motor vehicle accident matter.  

In this case, the Plaintiffs and the Defendant were allegedly involved in a head-on collision.  According to the Opinion, it was alleged that the Defendant was a diabetic and that onsite testing confirmed that the Defendant’s blood sugar level was low at the time of the collision.  

The Plaintiff asserted, in part, that the Defendant was negligent in failing to monitor and recognize his low blood sugar levels and for continuing to drive despite such low blood sugar levels.

The Defendant filed a Preliminary Objection in the nature of a demurrer to the punitive damages claim.  

The court noted that the Plaintiff based the punitive damages claim on allegations that the Defendant allegedly failed to properly educate himself regarding the signs of low blood sugar, allegedly fail to properly monitor, treat for, medicate, and care for his condition, and allegedly noted but ignored the signs and symptoms of low blood sugar as a result of his diabetes.   The Plaintiff additionally alleged that, even though the Defendant knew low blood sugar would affect his driving abilities, the Defendant still drove his vehicle allegedly creating an appreciable harm to others.  

After reviewing the facts pled against the law of punitive damages, Judge Koury denied the Defendant’s Preliminary Objections and allowed that claim to stand.   The Court found that, based upon the allegations set forth in the Plaintiff’s Complaint, facts were pled to support the Plaintiff’s allegation that the Defendant had a subjective appreciation of the risk of harm to which he exposed the Plaintiffs and that the Defendant allegedly acted, or failed to act appropriately, in conscious disregard of that risk.

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

I send thanks to Attorney Paraskevoula Mamounas of the Bethlehem, Pennsylvania law firm of Thomas, Conrad & Conrad for forwarding this decision to my attention. 

Judge Mazzoni of Lackawanna County Allows for Second IME in Extenuating Circumstances

In his recent August 9, 2012 detailed Order issued in the case of Mehall v. Benedetto, No. 2009-CIV-5849 (C.P. Lacka. Co. August 9, 2012, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas addressed a Defendant’s request for a second independent medical examination (IME) and allowed the same.

In this case, the Defendant originally had the Plaintiff sent to a neurosurgeon for an IME relative to the Plaintiff’s alleged back injury. 

During his deposition, the Plaintiff had also referenced a foot injury but the records showed that the Plaintiff had not treated for 3 ½ years after his discharge from treatment under the doctor that was treating that injury.

After the completion of the neurosurgeon IME, Plaintiff produced a letter report from the Plaintiff’s foot doctor in which that doctor concluded that the Plaintiff also was suffering from post-traumatic arthritis with respect to the foot as a result of the subject accident.  As such, the defense proceeded to court on a motion for an IME with respect to the foot injury claim after the Plaintiff refused to agree to the same.

In allowing for the second IME for the foot injury, the Court reiterated while the Plaintiff identified foot pain during his deposition, neither the Plaintiff’s Complaint nor is Amended Complaint identified any foot injuries.

The Court also noted that, as of the Plaintiff’s deposition, where foot pain was mentioned, the Defendants were under the impression that the Plaintiff had had no further treatment for several years with regard to the foot. It was only after the Defendant received the report from the foot doctor as produced by Plaintiff’s counsel that the Defendant had become aware, for the first time, that the Plaintiff had not only returned to treatment with that doctor, but was also advancing a claim for post-traumatic arthritis.

In his decision, Judge Mazzoni distinguished the prior Lackawanna County Decision on a similar issue by Judge Carmen D. Minora in the case of Judge v. Solid Waste Services, Inc., 41 Pa. D. & C. 4th 225 (C.P. Lacka. Co. 1999).

In this Mehall case, Judge Mazzoni found that the Plaintiff’s failure to seasonable supplement his discovery responses had the net effect of keeping information from the defense with respect to the necessity of an IME with regards to the foot injury. Judge Mazzoni also found that, due to the exceptional circumstances of this case, the second IME addressing the Plaintiff’s foot injury would not be an unreasonable invasion of privacy.

As such, Judge Mazzoni affirmed the Discovery Master’s decision to allow the Defendants to secure an additional IME regarding the alleged foot injury. Judge Mazzoni stated that this decision was “simply an attempt to ‘level the playing field’ and remove any potential prejudice.”


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


I note that the prevailing defense attorneys in this matter were Attorney Robert L. Goodman, Esquire of Forry Ullman in Bethlehem, Pennsylvania and Attorney Kevin M. Higgins of Byrne, Neyhart & Higgins in Scranton.  I send thanks for Attorney Goodman for bringing this decision to my attention.

Source of image:  www.eschmanpt.com

A Cell Phone Punitive Damages Case Out of Crawford County

In his July 17, 2012 Memorandum and Order in the case of Leonard v. Schlabach, No. A.D. 2012-172 (C.P. Crawford Co. July 17, 2012 Vardaro, P.J.), President Judge Anthony J. Vardaro overruled in part and sustained in part a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in a motor vehicle accident case.

The Court sustained the Preliminary Objections on the Plaintiff’s claim for punitive damages in this ordinary motor vehicle accident matter.  In this regard, the Plaintiff was attempting to support a punitive damages claim based upon, in part, allegations that the Defendant was using a cell phone at the time he pulled into a Sheetz parking lot under nighttime conditions and struck a pedestrian Plaintiff.

Judge Vardaro reviewed a line of cell phone as punitive damages cases, including Pennington v. King, Piester v. Hickey, Xander v. Kiss, and Kondash v. Latimer. Judge Vardaro also reviewed cases from other jurisdictions pertaining to cell phone/punitive damages issues.
After a review of the above law, the Court noted that the “proper inquiry here is whether the allegations in Plaintiffs’ complaint constitutes the type of ‘additional indicators’ or aggravating factors that could elevate Defendant’s conduct from mere negligence to the type of willful, wanton, or reckless conduct that would justify punitive damages.”

The Court noted that, in this matter, the Plaintiffs have allege that, in addition to using his cell phone at the time of the accident, the Defendant was allegedly driving too fast for the conditions (i.e., the conditions being that he was in a parking lot at night when he knew he may encounter pedestrians), had altered the height of his vehicle so that it sat higher than it did when it was manufactured, and had modified the side door windows so that they had a darker tint then they did when the vehicle was manufactured.
The Court found that these allegations were “distinguishable” from the additional indicators found in those cases that have permitted cell phone use to serve as the basis for an award of punitive damages.  For example, there was no allegation in this case that the Defendant was driving while intoxicated, driving erratically across multiple lanes of traffic, or fleeing the scene of the accident.

The Court found that, under the facts alleged in this matter, the Defendant’s conduct, at most, was very careless. Furthermore, the Court stated that there was no malice in the Defendant’s decision to raise the profile of his vehicle or tint his windows. The Court also noted that the Defendant’s decision to tint his windows or raise the profile of his vehicle were presumably made well before the subject accident and were not a part of the same chain of events so as to support a claim for punitive damages in this matter.

The Court dismissed the Plaintiff’s claims for punitive damages noting that injuries caused by the alleged conduct of the Defendant driving too quickly through the Sheetz parking lot while using a cell phone do not compare to the egregious nature of the additional indicators noted in the above cases. Judge Vardaro also stated that the injuries caused by the Defendant’s alleged conduct were capable of being fully addressed by compensatory damages and that punishing the Defendant with punitive damages under the facts alleged would not appropriate.



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

To view other Tort Talk posts on cell phone/punitive damages cases, click HERE.


I note that the prevailing defense attorney in this case was Attorney Mark Miodusezewski of the Erie, Pennsylvania law firm of Marnen, Miodusezewski, Bordonaro, Wagner & Sinnott, LLC.  I send thanks to Attorney William C. Wagner of the same law firm for providing me with a copy of this Opinion.

The Tools of Tort Talk

Most Tort Talkers receive their Tort Talk info by way of email.  If you have ever had the situation where you thought "I know I've seen a recent case on Tort Talk on this issue," this blog post is for you.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve a a kickstart to your research if you actually go to the Tort Talk site at www.torttalk.com.  On the site itself there are a number of research tools (http://www.torttalk.com/) to help you find the case or cases or article you are looking for.

Search This Blog Box

The Search This Blog Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic.  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 that comes up to read further.



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


Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by looking and scrolling down the far right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."



Labels

  Also down on the right hand column of the blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," etc.) 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.


My Published Articles

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 www.JDSupra.com 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.

I note that the Pennsylvania Law Weekly does not allow me to post my articles on the JDSupra site is it is a competitor.  However, I am permitted to post my Law Weekly articles on Tort Talk which I have done since I started the blog.  You can find those articles by typing in key words or terms into the Search this Blog box.  Please also feel free to email me directly for a copy of any of my articles that you may be looking for(dancummins@comcast.net).


Links

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 that 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 provided tips on 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 dancummins@comcast.net.

Credit to UIM Carrier Upheld (Again)

The case of Irving v. Progressive Specialty Ins. Co., No. 11-7594, 2012 WL 2912309 (E.D.Pa. July 17, 2012 McLaughlin) is the latest in the long line of Pennsylvania court decisions upholding exhaustion clauses in the underinsured motorists (UIM) portion of insurance policies as entitling the UIM carrier to a credit for the liability limits of the tortfeasor(s) in motor vehicle accident matters.

Ever since at least the case of Boyle v. Erie Ins. Co., 656 A.2d 941 (Pa.Super. 1995), the rule in Pennsylvania has been that, in order to pursue a UIM claim, the Plaintiff need not fully exhaust the tortfeasor's liability limits but must give the UIM carrier a credit for the full amount of the available liability limits.

In this case the Plaintiff sued the driver of the vehicle that struck his vehicle and also sued another driver who had allegedly "waved" the first defendant to proceed.  The Plaintiff settled his claim with the first defendant who struck his vehicle.  That settlement was for $15,000.

The Plaintiff put Progressive Insurance on notice of a UIM claim.  At that time, the remaining third party litigation was still pending against the defendant who had allegedly "waved" the first defendant to proceed.  Progressive asserted that it was entitled to a credit in the amount of the $15,000 limits of the first tortfeasor as well as the $300,000 in liability limits covering the "waving" defendant.  The Plaintiff disagreed and filed this declaratory judgment action.

The Irving court provided a nice summary of the line of Pennsylvania state and federal decisions upholding exhaustion clauses and, after reviewing the language of the exhaustion clause in this matter, ruled that Progressive was indeed entitled to a credit in the amount of both defendants' liability limits, i.e., $315,000 as opposed to only $15,000.

Here's a LINK to the Opinion in Irving v. Progressive.  Here is a LINK to the Order that goes with the Opinon.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for providing me with a copy of this decision.

Judge Nealon Addresses IME Forfeiture Fees

In his recent decision in the case of Fratzola v. Klepadlo, No. 10 - CV -230 (C.P. Lacka. Co. August 7, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a request for sanctions against a Plaintiff in a motor vehicle accident case relative to the Plaintiff's failure to attend a scheduled independent medical examination (IME).

In this matter, the Plaintiff had been given the wrong address for the IME doctor by his own attorney.  The Plaintiff called his attorney and continued on to the IME doctor's office but arrived late for his appointment.  The doctor was allegedly unable to accommodate the Plaintiff and the IME did not take place.

When the Defendants were hit with a forfeiture fee by the IME doctor, the Defendants filed a Motion for Sanctions requesting the sanction of having the Plaintiff pay the forfeiture fee.

In the meantime, during the pendency of the motion for sanctions, the IME had been rescheduled in the case.  However, when the Plaintiff arrived for the second scheduled IME he was told by the doctor that the IME had been cancelled.  The IME was again rescheduled for a third time and is currently set to take place in September.

The Lackawanna County Discovery Master first heard the issue and granted partial relief to the Defendants by ordering the Plaintiff to pay a portion of the IME forfeiture fee.  The Plaintiff filed a de novo appeal and the case was argued before Judge Nealon.

In his Opinion, Judge Nealon reviewed the issue under the factors pertinent to the analysis for discovery sanctions and found that sanctions were not warranted.  In his Opinion, Judge Nealon emphasized that the Plaintiff had not acted in bad faith and that there was no prejudice to the Defendant's defense since the IME was still in line to take place.  Accordingly, the court reversed the Order of sanctions issued by the Discovery Master and denied the Motion.

Anyone wishing to review this Opinion may click this LINK. 

Link to Sipler v. Trans AM Trucking Medicare Decision

Yesterday I posted a summary of the Medicare decision out of the District Court of New Jersey in Sipler v. Trans AM Trucking, Inc., et al, No. 10-3550(DRD)(D.N.J. July 24, 2012 DeBevoise, S.J.).  I don't believe the link to that opinion was working.


Accordingly, I have attempted to fix the link and I provide the link to the Sipler Opinion again--click HERE.

Sorry for any inconvenience.

More Decisions Regarding Impact of Medicare Liens on Finalization of Settlements

Below are summaries of two recent federal court decisions regarding the impact of potential Medicare liens on the finalization of a settlement of a third party action:

Carty v. Clark, Civil Action No. 11-6083 (E.D.Pa. June 14, 2012 Rueter, Mag. Judge)(Order by Robreno, J.)

In Carty, the Plaintiff agreed in a Release that defense counsel could hold settlement amount in escrow until Plaintiff produced Final Demand Letter from the Centers for Medicare and Medicaid Services.

The Plaintiff thereafter produced a Final Demand Letter and the defense counsel refused to release settlement amount citing fears that an unpaid medical bill might be paid by Medicare in the future and would have to be added to the lien.

The Court granted Plaintiff's Motion to Enforce settlement citing the clear terms of the Release which stated that, once the Final Demand Letter was produced by the Plaintiff from Medicare, the settlement proceeds were to be released to the Plaintiff. 

The Plaintiff's request for sanctions were denied as it did not appear to the court that the defense had acted in bad faith.

To view Federal Magistrate Rueter's Report and Recommendation, click HERE.

To view the Eastern District Court Order issued by Judge Eduardo C. Robreno adopting Judge Rueter's Report and Recommendation, click HERE.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association of Justice for bringing this case to my attention.



Sipler v. Trans AM Trucking, Inc., et al, No. 10-3550(DRD)(D.N.J. July 24, 2012 DeBevoise, S.J.)

Although the Sipler case is a Federal District Court of New Jersey decision that was marked by that court as "NOT FOR PUBLICATION," a number of Pennsylvania litigators are pointing to the case for its persuasive authority on the issue of the impact (or more appropriately, the non-impact) of Medicare issues on personal injury settlements.

In the District of New Jersey case of Sipler, the parties settled a personal injury action arising out of a motor vehicle accident.  The parties were unable to finalize the settlement due to disagreements over the terms of the Release, which dispute included issues over release terms pertaining to Medicare matters.  The Plaintiff brought the matter before the court by way of a Motion to Enforce Settlement.

After thoroughly reviewing the applicable law pertaining to Medicare and the potential for Medicare liens, the court in Sipler noted that, while the Plaintiff was Medicare eligible, there was no evidence that Medicare had paid for any of the Plaintiff's accident-related treatment.

Based on the demands of the defense in this matter in terms of the requested provisions of the release, one of the issues in this case became whether the Medicare Secondary Payer statute required language in the release provisions of the plaintiff's settlement agreement specifying (1) the plaintiff's obligation not to seek such payments from Medicare, and (2) that a portion of the settlement amount would be set aside for future medical expenses arising out of the accident.

The court in Sipler noted that, while set-aside agreements were common in workers' compensation matters, "no federal law requires set-aside arrangements in personal injury settlements for future medical expenses."  Op. at p. 6.

The court went on to note that personal injury settlements should not be required to have such set-aside agreements because "to require personal injury settlements to specifically apportion future medical expenses would prove burdensone to the settlement process and, in turn, discourage personal injury settlements."  Id. at p. 7.

In a footnote, Judge DeBevoise also stated "Indeed, it would be particularly discouraging if litigants were required to obtain Medicare's approval of a settlement."  Id. at p. 7, n. 1.

Accordingly, the court held that "the parties in this case need not include language in the settlement documents noting [the Plaintiff's] obligations to Medicare or fashion a Medicare set-aside for future medical expenses."  Id. at p. 7.

To view the Sipler decision online, click this LINK.

I thank several attorneys for pointing this decision out to me including, but not limited to, Attorney Andrew Bigda of the Wilkes-Barre, PA law firm of Rosenn, Jenkins & Greenwald, and Attorney Thomas Foley, Jr. of the Scranton, PA Foley Law Firm.


To review, other Tort Talk posts (as well as my July of 2012 Pennsylvania Law Weekly article) on this issue of the interaction of Medicare lien issues and personal injury settlements,
click this LINK.

Named Driver Only Automobile Insurance Policy Upheld by Pennsylvania Eastern District Federal Court

In an apparent case of first impression, Judge Schiller of the Eastern District Federal Court ruled in his June 4, 2012 slip opinion in the case of Infinity Ins. v. Gonzalez, 2012 WL 1994772 (E.D. Pa. June 4, 2012 Schiller, J.), that the terms of a "Named Driver Only" automobile insurance policy would be upheld.  The court therefore held that Infinity Insurance need not provide coverage in an underlying motor vehicle accident litigation as a result.

In Infinity Ins. v. Gonzalez, Infinity contended its declaratory judgment action that its policy terms were clear and unambiguous and served to preclude coverage when the insured automobile was being operated by anyone other than the named insured.

The court noted that the policy endorsement clearly identified the policy as a “Named Driver Only” policy.  The policy also stated in bold language that the policy provides coverage only for drivers listed on the policy.

The court in this case also found that the language in the policy and endorsement was clear and unambiguous in restricting coverage only to drivers who are listed in the insurance policy. The court noted that the insured only listed herself in her application for insurance, and that the insured was the only listed insured driver in the policy and endorsement. The court additionally noted that the insured was clearly aware of the restriction, because in her application for insurance, insured selected an option whereby she received a discount on her premiums in exchange for a policy that denied coverage for unlisted drivers.

Although the court had "serious reservations" about upholding an insurance policy that makes it easier for uninsured motorists to drive on Pennsylvania roads, the court also recognized that "there was no clear indication of Pennsylvania law to justify the invalidation of this insurance policy based on that public policy." Op. at p. 4.  Since no party specifically raised any public policy argument for the court to consider, Judge Schiller elected to apply the clear and unambiguous language of the policy.

Anyone desiring a copy of this Opinion in the case of Infinity Ins. v. Gonzalez may contact me at dancummins@comcast.net.

Article on UIM Rejection Forms Published in ABA's Tort, Trial & Insurance Practice Newsletter

Here's a link to an article of mine that was selected to be the lead article in the Summer 2012 edition of the nationally distributed American Bar Association Tort, Trial & Insurance Practice Committee Newsletter.

The article is entitled "Rejecting the Rejection" and analyzes recent Pennsylvania state and federal court decisions that have strictly construed the requirements for UIM rejection forms.

Here's the LINK to the article if you are interested in reading the same.

Some Recent Federal District Court Auto Law Cases of Note

Sypeck v. State Farm Mut. Auto. Ins. Co., 2012 WL 2239730 (M.D.Pa. June 15, 2012) (mem.)

(Court found claim for breach of contract stated but not statutory bad faith claim which was only supported almost entirely with conclusory allegations using boilerplate language; court rules that a facially unreasonable settlement offer does not prove bad faith; court also states that knew or should have known allegation offers the possibility of negligence which cannot establish bad faith under Pennsylvania law.).



Weber v. Nationwide Mut. Ins. Co., 2012 WL 2157712 (E.D. Pa. June 14, 2012) (mem.)

(Federal Court declines to exercise jurisdiction in UIM claim; although underlying high/low arbitration had a liability policy with $300,000, which exceeds the $75,000 federal jurisdiction threshold, there were no federal interests at stake, the matter involved state law claims, and there was a related proceeding pending in state court where the plaintiff is seeking a declaration that the high/low arbitration agreement constitutes a settlement requiring the UIM insurer to undertake action pursuant to Daley-Sand).



Watson v. Nationwide Mut. Ins. Co. of North America, 2012 WL 2159297 (E.D. Pa. June 14, 2012) (mem.)

(Four peer reviews conducted before insurer denied payment of certain bills; court notes that a Medicare Advantage Plan may seek repayment of liens from a tort recovery but such repayment is not automatic; Section 8371 bad faith claim not barred if insurer's conduct goes beyond scope of Section 1797; court stated that just because plaintiff's allegations of abuse of the peer review process are sufficient to state a claim does not mean they can necessarily survive a motion for summary judgment; court found that plaintiff failed to prove that insurer's decisions to seek peer reviews were a sham and that decisions were made on causation or relatedness; court stated that insurer's failure to describe force of impact to peer review doctors is not relevant; court rejected assertion that transactional relationship between insurer and PRO calls into question the whole peer review process; court also noted that, given time lapse between treatments, insurer did not act in bad faith by requesting peer reviews; court found that evidence did not show that insurer manipulated the insured--insurer offered $1,700 and on advice of counsel, insured demanded $2,000; court also noted that Section 8371 does not contemplate actions for bad faith upon alleged discovery violations--counsel's misbehavior must be serious to justify a finding of bad faith; inadequate settlement offer alone is not a basis for bad faith; court also stated that defendant's use of two attorneys at plaintiff's deposition was not bad faith; court additionally stated that non-disclosure of policy manuals is only relevant if those policy manuals exist and are discoverable).



Stricker v. State Farm Mut. Auto. Ins. Co., 2012 WL 2153977 (M.D. Pa. June 13, 2012) (mem.)

(Court ruled that dismissal of bad faith claim premature; court found that insurer's misrepresentation that UIM limits were $50,000 when they were at least $100,000 and arguably $150,000 may constitute more than an incorrect policy interpretation).



I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for advising me of the above recent decisions. 

Anyone desiring a copy of any of the above cases may contact me at dancummins@comcast.net.