Friday, September 28, 2012


In its September 28, 2012 decision in the case of Smith v. Rohrbaugh, No. 91 MDA 2010, 2012 Pa. Super. 208 (Pa.Super. Sept. 28, 2012 Stevens, P.J., Bender, J., Panella, J., Donohue, J., Allen, J., Mundy, J., Olsen, J., Ott, J., and Wecht, J.)(Opinion by Ott, J.), the Pennsylvania Superior Court held that its previous decision in the case of Pusl v. Means, 982 A.2d 550 (Pa.Super. 2009) was wrongly decided and therefore overruled.

In its prior decision in the case of Pusl v. Means, the Superior Court basically held that, where a Plaintiff first obtained a UIM recovery in a motor vehicle accident case, the defendant tortfeasor in the third party case was entitled to a credit against the verdict of the UIM amounts already received by the Plaintiff so as to prevent a double recovery in violation of Pennsylvania's Motor Vehicle Financial Responsibility Law.

In this Smith v. Rohrbaugh case, the trial court applied that Pusl UIM credit against a verdict entered against the tortfeasor defendant driver after a trial on the liability side of the case. 

On appeal, the Superior Court noted that the Pusl v. Means decision had been based, in part, on the Superior Court's prior decision in the case of Tannenbaum v. Nationwide Ins. Co., 919 A.2d 267 (Pa.Super. 2007), which decision had since been overruled by the Pennsylvania Supreme Court.  See 992 A.2d 859 (Pa. 2010).

The Smith v. Rohrbaugh court noted that Pusl correctly decided that the MVFRL, 75 Pa.C.S.A. Section 1722, prevents a double recovery of first party benefits.  The Smith v. Rohrbaugh court states, however, that the Pusl decision then equated UIM benefits with first party benefits and, as a result, incorrectly concluded that Section 1722 applied to UIM payments.

Looking at the provisions and definitions noted in the MVFRL, the Smith v. Rohrbaugh court concluded that UIM benefits were not listed among those first party benefits subject to this prohibition against a double recovery.  The court noted that while UIM benefits are usually referred to as first party benefits, since the legislature did not specifically list UIM benefits in this regard in the MVFRL, Pusl was incorrect in its analysis that a credit was due to the tortfeasor defendant for previously paid UIM benefits to a Plaintiff as a means to prevent a double recovery of first party benefits.  To rule otherwise, would represent an impermissible rewriting of the MVFRL.

As such, the Pusl credit no longer exists and it appears that a Plaintiff may now secure UIM benefits prior to proceeding on a claim against the third party tortfeasor on the liability side.

It remains to be seen whether this case will be appealed up to the Pennsylvania Supreme Court and, if so, whether that court will grant allocatur to hear the appeal.  It is noted that the Pennsylvania Supreme Court denied allocatur in the Pusl case when that case appeared at their door.

Anyone wishing to review the Smith v. Rohrbaugh decision may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price, and Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for publicizing this decision.

Sunday, September 23, 2012

Potential Effect of Defendant's Bankruptcy on Personal Injury Matter

In its recent June 26, 2012 decision in the case of Gubbiotti v. Santey, Nos. 880-MDA-2011, 885-MDA-2011 (Pa. Super. June 26, 2012 Stevens, P.J., Panella, J., and Mundy, J.)(Opinion by Panella, J.), the Pennsylvania Superior Court reviewed the entry of summary judgment by Judge Chester P. Muroski of the Luzerne County Court of Common Pleas in favor of a Defendant in a case in which the Plaintiff attempted to pursue a recovery from the Defendant's liability carrier after the Defendant had been discharged in a bankruptcy matter.

The Plaintiffs argued that the discharge of the Defendant’s debts in bankruptcy did not impede the Plaintiff’s ability to pursue an action to collect damages from the Defendant’s insurance company for personal injuries arising from a motor vehicle accident.

After a review of the case before it, the Pennsylvania Superior Court ruled that, since there was no timely objection by the Plaintiff to the discharge of the Defendant’s debts, the trial court properly entered summary judgment in favor of the Defendant in the underlying personal injury action.

Anyone involved in a personal injury action in which the Defendant tortfeasor is involved in a bankruptcy may wish to review this decision as to the impact of the bankruptcy proceedings on the civil litigation matter.

In this matter, the Defendant went through a bankruptcy, and after the bankruptcy court discharged all of the Defendant’s debts accumulated prior to the Discharge Order date, the Defendant filed a motion seeking to amend his New Matter in the underlying personal injury action to include the affirmative defense of a discharge from bankruptcy. The Defendant thereafter moved to obtain summary judgment on that basis, which was granted by the trial court and, in this opinion, affirmed by the Superior Court.

Anyone desiring to review a copy of this decision may click HERE.

I send thanks to Attorney Howard M. Levinson of the Wilkes-Barre, Pennsylvania law office of Rosenn, Jenkins & Greenwald for bringing this case to my attention.

Friday, September 21, 2012

ARTICLE: Hurricane Koken Turns Toward Sea

The following article of mine appeared in the September 18, 2012 edition of the Pennsylvania Law Weekly and is reprinted here with permission.

Hurricane Koken Turns Toward Sea

Storm May Subside With Guidance From State Superior Court


Daniel E. Cummins


It has now been nearly seven years since the automobile accident litigation landscape was forever changed by the monumental Pennsylvania Supreme Court decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005). In that decision, the Pennsylvania Supreme Court held that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorist claims.

In what has been coined the post-Koken era, most automobile insurance carriers amended their policies to rid them of arbitration clauses, thereby requiring UM and UIM claims to be litigated in lawsuits filed in the courts of common pleas as opposed to an arbitration.

In a 2008 Law Weekly article on this topic, I termed this flooding of the trial courts with these thousands of new claims as "Hurricane Koken." The handling of these new cases has been stormy indeed and rife with uncertainty as both the courts and the bar have attempted to brace themselves against the myriad novel and complex issues.

To date, most, if not all, of the decisions handed down on the important post-Koken issues have been written by trial judges from across the state. By now, a growing number of post-Koken cases containing both negligence claims against the third-party defendant driver and breach of contract claims against the UIM or UM insurance carrier have proceeded through the pleadings and discovery stages and have reached trial.

Accordingly, there is a growing likelihood that many of these cases will now move up the appellate ladder to the Pennsylvania Superior Court for much needed guidance that may serve to tame the storm by providing predictability to those weathering this drastic change in the manner in which auto accident cases are litigated. In other words, Hurricane Koken appears to be preparing to head out to sea as the bar and the courts settle down into the new normal.

Few chances to predict storm's direction

Other than the issue of proper venue, the appellate courts have not had an opportunity to squarely address any novel post-Koken issue of note.

In the proper venue case of O'Hara v. First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 984 A.2d 938 (Pa. Super. 2009), the Superior Court upheld a UIM carrier's forum selection clause requiring a post-Koken UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident.

In the case of Sehl v. Neff and State Farm, 26 A.3d 1130 (Pa. Super. 2011), the Pennsylvania Superior Court ruled that proper venue in a post-Koken case where the UIM carrier did not have a forum selection clause in its policy would be where both defendants, i.e., the defendant driver/owner and the UIM carrier, could both be sued under Pennsylvania Rule of Civil Procedure 1006.

One of the most litigated issues in the early post-Koken era has been whether or not a plaintiff's third-party negligence claim against the defendant driver or owner should be consolidated with, or severed from, the companion breach of contract claims asserted by the plaintiff against the UM/UIM insurance carrier. Presently, the courts of common pleas are almost equally split on this question of consolidation versus severance.

It was this uncertain issue that almost came before the Pennsylvania Superior Court in the case of Richner v. McCance and Erie Insurance Group, 13 A.3d 950 (Pa. Super. 2011). In that case, the Superior Court ruled that the plaintiff's third-party negligence claims against the defendant driver and a separate declaratory judgment action on the UIM coverage issues would be allowed to proceed up to trial in a consolidated fashion under one caption.

In Richner, the Superior Court left the door open as to whether or not these types of claims should be bifurcated when the case reaches trial.

In so ruling, however, the Richner court rejected the trial court's reliance on post-Koken cases ruling in favor of the consolidation of tort claims and claims for UIM benefits. The court found the analysis in those similar types of cases to be "inapposite" to the issue in the Richner case involving the separate and different question of the combination of a tort claim with a request for declaratory judgment in response to a coverage question.

In a footnote, the Superior Court stated, "We emphasize that we are not here deciding the propriety of the joinder of third-party liability claims with post-Koken UIM benefit claims."

As such, the Superior Court skirted this important issue as it related to those ordinary post-Koken cases involving standard motor vehicle accident negligence and UIM claims.

Despite this footnote proviso by the Superior Court in Richner, that decision remains the closest any Pennsylvania appellate court has come, to date, to squarely addressing the all-important post-Koken issue of consolidation versus severance.

Storm Bears Down

Now, Hurricane Koken is bearing down on the Superior Court in the form of a case out of Allegheny County that is on the cusp of becoming one of the first post-Koken cases in which that court may squarely address novel post-Koken issues of note other than the proper venue issue.

In the Allegheny case of Stepanovich v. McGraw and State Farm Ins., GD 10-16523 (C.P. Allegh. Co. July 31, 2012, O'Reilly J.), Judge Timothy P. O'Reilly addressed several important issues raised in a motion for a new trial following a defense verdict in a post-Koken combined trial of the third party and the UIM claims.

According to the post-trial motion briefs filed in that matter, the Stepanovich case arose out of a June 19, 2010, motor vehicle accident. The plaintiff pursued litigation in this matter against the third-party tortfeasor defendant driver and State Farm as the underinsured motorist carrier.

At the preliminary objections stage of the case, the tortfeasor defendant moved to sever and/or bifurcate the plaintiff's claims against the UIM carrier because the presence of that defendant would introduce into the trial the existence of insurance coverage not only with respect to the UIM claim but also with respect to the tortfeasor defendant's own liability coverage. The tortfeasor defendant asserted that allowing the UIM carrier to remain in the case at trial would therefore concentrate at least part of the trial on the issue that the defendant was not only insured, but underinsured.

The tortfeasor defendant pointed to Pennsylvania Rule of Evidence 411, which generally precludes the introduction of insurance evidence at trial. Lastly, the tortfeasor defendant further argued that his defense would be prejudiced by the introduction of liability insurance and underinsurance issue in the negligence claim asserted against him by the plaintiff.

Early in the case, the trial court in Stepanovich issued an order after the argument on the preliminary objections in which it was confirmed that all counsel involved had agreed that the third-party tort claim and the UIM claim were to be tried together. It was additionally agreed that the trial judge would structure the trial in such a way as to honor the agreement of counsel that there would not be any mention of insurance at trial.

After the trial of the Stepanovich case, the jury returned a defense verdict in favor of the tortfeasor defendant. This verdict required the court to enter a directed verdict in favor of State Farm on the UIM claim. The plaintiff then filed post-trial motions.

In the plaintiff's post-trial motions, the plaintiff complained that the trial court judge allowed both defense counsel for the tortfeasor defendant and defense counsel for the UIM carrier to fully participate in the trial in the form of two openings, closings, cross-examinations and direct examinations without ever informing the jury of the nature of State Farm's involvement or its defense counsel's participation in the trial at issue.

The plaintiff asserted in his post-trial motions that the jury verdict was a result of the prejudice caused by the court's decision to allow defense counsel to present two cases despite "keeping the jury in the dark about State Farm's role in the trial." Accordingly, the plaintiff requested a new trial in the matter.

In his order, O'Reilly granted the plaintiff's motion for a new trial by finding, in part, that it was a "denial of due process" to deny the plaintiff the right to identify one of the defendants to the jury in a post-Koken trial."

O'Reilly more specifically stated that the "methodology of permitting the insurance company defendant to remain a phantom is ineffective in preserving due process." An appeal to the Superior Court was then filed.

Several Possible Predictions

The Stepanovich case presents as an on-point opportunity for the Pennsylvania Superior Court to squarely address a number of post-Koken issues that have split the trial courts across Pennsylvania. First off, the Superior Court could potentially address the issue of whether or not post-Koken cases should be consolidated at the earlier pleadings and discovery phases of the case.

The issues presented in Stepanovich also potentially allow the Superior Court to address the similar issue of whether, after the pleadings and discovery stages are complete, such a case should be consolidated for trial or should instead be bifurcated into two separate trials.

Also central to the questions presented in the Stepanovich case is the application of Pennsylvania Rule of Evidence 411, which generally precludes the mentioning of an "insurance" at trial in most instances.

How the Superior Court chooses to apply this long-standing Rule of Evidence in the novel context of a post-Koken case will serve to clarify many issues for the lower courts and provide predictability for the bar.

Overall, the Stepanovich decision offers the Superior Court an opportunity to address the central and complex issue of how to handle an insurance company party defendant's involvement in the trial of a post-Koken motor vehicle accident lawsuit.

In this regard, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a detailed opinion in which he reviewed, in dicta, the different ways in which different courts from different jurisdictions have addressed how to handle an insurance company defendant's participation in a combined motor vehicle accident trial.

In his decision in the case of Bingham v. Poswistilo, Erie Insurance Exchange, 2011 WL 8809426, No. 2010-CIV-6026 (C.P. Lacka. Co. April 8, 2011 Nealon, J.), Nealon noted that the other states that have permitted a joinder of negligence claims and UIM claims have fashioned a variety of approaches in addressing the admissibility of insurance information under their evidentiary rules, which, like Pennsylvania's Rule of Evidence 411, generally preclude evidence that a party is or is not insured.

Citing Florida, Virginia, Wyoming, Oklahoma, New Jersey and Connecticut cases, Nealon stated that courts in these jurisdictions present the consolidated claims as a tort action against the negligent driver only and do not permit the UIM insurers to be identified even though they will be bound by the jury's verdict. According to Nealon's review of the decisions from those jurisdictions, under this procedure, the UIM carrier remains a party to the trial, but the name of the insurance company and the terms of the UIM policy are withheld from the jury. In these proceedings, after the verdict is rendered and the jury dismissed, the trial judge molds the jury's award to reflect the liabilities of the tortfeasor and the UIM insurer.

According to Nealon's research of other jurisdictions, the courts of some other states, such as Kentucky and Maryland, require that the UIM carrier be identified and allow reference to be made to insurance on the grounds that such disclosure is properly allowed as an admission of insurance evidence for "another purpose" warranted under their versions of Pennsylvania Rule of Evidence 411.

Nealon also stated that, according to his research, courts in Alaska require that the UIM insurer be identified only if the tortfeasor and the UIM insurance company are sued in a single action and the jury could be confused as to whether those parties' interests are aligned or adverse.

According to Nealon's research, some courts, such as Maryland and Ohio, have concluded that, although the existence of insurance may be referenced in a consolidated tort/UIM action, the amount of UIM coverage is not admissible.

In his opinion in Bingham, Nealon also matter-of-factly stated that, "as a practical matter, it is difficult to conceive how 21st century jurors are unaware of the existence of insurance in motor vehicle litigation."

That thought, however, must be tempered against the reality that, under case law dating back more than 100 years in Pennsylvania jurisprudence, the mentioning of "insurance" in civil jury trials has largely been prohibited so as to prevent the juror's attention from being diverted from the facts of the case to the idea of the tangential issue of the extent of the defendant's insurance coverage.

The Superior Court's decision on this central issue will provide much needed guidance to the trial courts and the bar, thereby helping to settle this stormy area of the law a bit. 

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

Tuesday, September 18, 2012

Pennsylvania Supreme Court Reviews Rescue Doctrine

The Pennsylvania Supreme Court recently had an opportunity to address the “rescue” doctrine in the case of Bole v. Erie Insurance Exchange, No. 24 WAP 2011 (Pa. Aug. 20, 2012) (opinion by Eakin, J.).

In this matter, the Claimant appealed from the Superior Court’s Order affirming an arbitration award denying the Claimant recovery of UIM benefits. The Supreme Court allowed an appeal to determine whether the rescue doctrine allowed the Claimant, a volunteer firefighter responding to a crash, to recover despite a finding that his injuries were the result of a superceding cause.

In affirming the Superior Court’s decision, the court reviewed the rescue doctrine and the finding of the divided arbitration panel that the Claimant was not entitled to UIM benefits because he was not driving to the scene of the emergency at the time of the accident. Rather, the Claimant was on his way to the fire station at the point he was involved in the accident.

If you are faced with an issue involving the rescue doctrine, this case may be one to review. The rescue doctrine provides “’[i]t is not contributory negligence for a Plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm.’” Stated otherwise, the rescue doctrine permits injured rescuers to recover when there recovery would be otherwise barred by the strict application of the doctrine of contributory negligence.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Joe Walsh of the Lansdale, Pennsylvania law firm of Walsh Pancio, LLC for bringing this case to my attention.

Article on Recent Luzerne County Jury Verdict

Here's a link to an article by Bill Wellock from last Sunday's Times-Leader out of Wilkes-Barre reporting on a large Luzerne County jury verdict in an auto law case (not involving myself or my firm):

Denial of Additional UIM Coverage Under Business Auto Policy Upheld

In a September 10, 2012 decision in the case of DiSomma v. Mutual Benefit Insurance Company, No. 2236 M.D.A. 2011 (Pa. Super. Sept. 10, 2012 Bowes, Ott, and Strassburger, J.J.) (Memorandum by Bowes, J.) (non-precedential decision), the Pennsylvania Superior Court reviewed the enforceability of a household exclusion clause in a commercial vehicle insurance policy.

The injured Claimant sustained fatal injuries while operating his Vespa Scooter that was insured under a separate policy with Progressive Insurance.

The separate Mutual Benefit policy listed the decedent as an individual eligible for UIM coverage under a business auto policy issued to the decedent's incorporated restaurants.

The Mutual Benefit policy contained an endorsement, “Drive Other Car Coverage – Broadened Coverage For Named Individuals,” which afforded liability, UM and UIM benefits to named individuals while occupying other vehicles not covered under the commercial policy. The fatally injured Claimant was one of the named individuals on the endorsement.

The liability coverage under the commercial policy was changed to include as a “covered auto” any vehicle being used by the named individual or spouse except “Any ‘auto’ owned by that individual or by any member of his or her household.”

With respect to medical payments and UM/UIM coverage, the endorsement added as an insured any named individual and his or her family members “while ‘occupying’ or while a pedestrian when being struck by any ‘auto’ you don’t own except an auto owned by that individual or by any family member.”

The insurance company denied UIM coverage based upon the latter exclusion for vehicles owed by the individual.

The party’s representative commenced an action and alleged that the exclusion was ambiguous and capable of multiple interpretations and, therefore, unenforceable. The trial court held that the exclusion unambiguously precluded recovery on the facts presented and granted the carrier’s Motion for Judgment on the Pleadings. The injured party’s representatives appealed.

On appeal, the Superior Court affirmed. In so ruling, the Superior Court set forth the standard for determining whether or not a policy’s language is ambiguous.

Ultimately, the Superior Court accepted the carrier’s argument that the endorsement in fact enhanced the original liability and UM/UIM coverage, but the household exclusion contained therein unambiguously barred UIM benefits while the injured party was occupying his own vehicle insured under another policy with a different insurance company.

Anyone desiring a copy of this decision may click this LINK.

I send thanks to Attorney Pete Speaker of the Harrisburg office of Thomas, Thomas & Hafer for bringing this case to my attention.

Monday, September 17, 2012

Judge Vough of Luzerne Co. Addresses Identification of UIM Carrier Defendant at Post-Koken Trial

Judge Michael T. Vough
A recent post-Koken trial Order of note was issued by Judge Michael T. Vough of the Luzerne County Court of Common Pleas in the case of Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz. Co. Sept. 7, 2012 Vough, J.).  

In this post-Koken matter, the case was set to proceed to trial against both the tortfeasor Defendant driver and the UIM carrier.   The UIM carrier filed a Motion with the Court requesting that the case proceed with the trial as a tort action and allowing GEICO to be a silent Defendant and precluding all evidence of insurance during the course of the trial.

In response, Judge Vough took a middle position and ruled that “Plaintiff is limited to informing the jury that he had an underinsured policy with Defendant, GEICO Insurance Company.  There shall be no other evidence presented to the jury regarding insurance.”  

Judge Vough otherwise ordered that GEICO Insurance Company was to appear in the case as a named Defendant and an active participant.  

The court also ruled that the insurance company’s Motion In Limine to preclude any reference to a bad faith count in the Complaint was granted in light of the fact that that portion of the claim had been stayed.  

Anyone desiring a copy of the Court’s Orders in this regard may contact me in this regard at 

I send thanks to Attorney Cindie Banks, GEICO in-house counsel, for providing me with a copy of these Orders.

Thursday, September 13, 2012





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Wednesday, September 12, 2012

Judge Nealon Addresses Scope of Review of UM Arbitration Panel

In his recent decision in the case of Roberts v. Travelers Insurance Company, No. 2012-Civil-539 (C.P. Lacka. Co. Aug. 24, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of the scope of the arbitrators’ authority and whether a certain issue presented in an uninsured motorist (UM) matter should be decided by a arbitration panel or, in the alternative, the court by way of a declaratory judgment action.

The insureds in this matter were allegedly injured in a multi-vehicle chain collision accident. The insured presented claims for uninsured motorist benefits after they were unable to determine which of the eight other vehicles involved in the accident had impacted their vehicle. The uninsured motorists carrier denied the UM claims presented.

Thereafter, the insureds demanded a UM arbitration pursuant to policy language provided for common law arbitration of the issue of whether the operator of a “uninsured motor vehicle” is “legally liable” to the insureds for damages.

The carrier opposed the insureds’ request for arbitration and asserted that only a court of law could address the insureds’ right to recover UIM benefits since the claims presented involved an interpretation of the phase “uninsured motor vehicle” as set forth in the UM policy at issue.

Judge Nealon ruled that, under the terms of the policy, to recover UM benefits, the insureds must prove that the operator of an “uninsured motor vehicle” caused the accident in question and is, therefore, “legally liable” to them.

Judge Nealon noted that the question of fault and the statutory and policy definitions of an “uninsured motor vehicle” are “inevitably intertwined and inseverable in this case. Roberts at p. 2. The court in Roberts ruled that, since the policy provided the arbitrators with the authority to determine whether the operator of an “uninsured motor vehicle” is “legally liable” to the insureds, the UM claim should be decided by the arbitrators even though the insureds’ right to cover implicated the definition of an “uninsured motor vehicle.”

Accordingly, Judge Nealon ruled that the parties’ UM dispute was indeed within the scope of the arbitration agreement. Accordingly, the court granted the insureds’ Petition to Compel Arbitration.

Anyone desiring a copy of this decision may contact me at

I send thanks to Attorney Jim Kilpatrick of the Scranton law firm of Munley, Munley & Cartwright for forwarding this decision to my attention.

Monday, September 10, 2012

Defense Verdict Secured in Recent Luzerne County Auto Accident Trial

I recently finalized the resolution of a matter of mine that was tried to a defense verdict back in June.  Here's a synopsis of the case:

Name of Case: Nicholas Marino v. Brianna L. Lizza and Linda Ann Lizza

Trial Verdict: Zero defense verdict returned by jury in favor of Defendant

Date: June 12, 2012

Court/Docket No: Luzerne County Court of Common Pleas/1939 of 2010 Civil

Judge: Judge Michael T. Vough

Type of Action: Personal Injury

Defense Attorney: Daniel E. Cummins of Foley, Comerford & Cummins, Scranton, PA

Plaintiff’s Expert: Dr. David S. Sedor, neurosurgeon, Wilkes-Barre, PA

Defense Expert: Dr. Thomas A. Allardyce, orthopedic surgeon, Wilkes-Barre, PA


This matter involves a motor vehicle accident that occurred under wintry on February 12, 2008 at approximately 1:00 p.m. on Main Street in Old Forge, Lackawanna County, Pennsylvania. The Plaintiff, Nicholas Marino, came to a stop to make a turn and the vehicle of the Defendant, Brianna Lizza, slid on the ice and snow into the rear of the Plaintiff’s vehicle.

At trial, the Plaintiff testified that he continued to experience pain from his neck, upper back, and shoulder injuries, which disrupted his activities of daily living both at work and outside of work. The Plaintiff sought to recover damages for pain and suffering and for past medical expenses.

At trial, the defense admitted liability and conceded, through the defense medical expert, that the Plaintiff had sustained, at most, a soft tissue cervical spine sprain injury.

At trial, on cross-examination of the Plaintiff, the defense pointed out that, although the Plaintiff repeatedly denied any prior neck or back complaints in his Answers to Interrogatories and during his deposition testimony, the prior medical records confirmed extended prior complaints and treatment for both neck and upper back issues.

The defense also offered evidence at trial that the rear-end impact at issue was minimal in nature from the perspective of the Defendant. The Defendant testified that her vehicle did not need to be repaired after the accident.

The jury was also informed that, as a result of the accident, the Plaintiff did not sustain any loss of consciousness, was not bleeding, and did not sustain any broken bones. The Plaintiff was able to exit his vehicle under his own power at the scene of the accident.

The Plaintiff also refused an ambulance and did not report to any emergency room. Rather, the Plaintiff drove himself from the scene of the accident to his family doctor, who did not order any x-rays. The Plaintiff was then able to drive himself home from his family doctor’s office.

Following the Plaintiff’s initial treatment with the family doctor, the Plaintiff primarily treated with a chiropractor and then saw a physiatrist, Dr. Albert Janerich, and the neurosurgeon, Dr. David S. Sedor.

The jury was also informed that the Plaintiff did not miss any time from his employment as a supervisor in a business that assisted local supermarkets with their various displays in stores. The Plaintiff also agreed, on cross-examination, that he remained capable of continuing to perform most of his activities of daily living with modifications, including his ongoing involvement in Little League baseball coaching every year since the accident.

By way of videotape deposition, the Plaintiff’s neurosurgeon, Dr. David S. Sedor opined that the Plaintiff sustained neck, upper back, and shoulder injuries as a result of the accident. Dr. Sedor further testified that the Plaintiff’s cervical spine injuries were permanent and could progress to require surgery in the future possibly followed by the need for a spinal cord stimulator.

The defense presented the videotape testimony of Dr. Thomas Allardyce, an orthopedic surgeon who completed the IME of the Plaintiff. It was Dr. Allardyce’s opinion that the records confirmed that the Plaintiff sustained a cervical spine strain injury as a result of the accident. The doctor also testified that this type of injury would ordinarily resolve within 12 weeks. The defense expert also opined that the positive findings on the Plaintiff’s post-accident MRI studies were degenerative in nature and not traumatic in nature.

Despite this testimony, the IME doctor also conceded that, if the Plaintiff’s ongoing subjective cervical spine complaints were believed, the doctor would have to relate them to the subject accident in the absence of any other trauma or conditions.

During closing arguments, the defense confirmed to the jury that liability was admitted and that the defense medical expert had confirmed that the Plaintiff sustained a soft tissue cervical spine sprain injury, the kind of which that should have resolved within several months of the accident. The defense requested the jury to enter an award consistent with the evidence presented, including the evidence of the minimal impact of the Plaintiff’s alleged injuries on his activities of daily living.

During the court’s provision of instructions to the jury, the jury was advised that given, the fact that the defense had admitted liability and conceded an injury, the Plaintiff was entitled to an award.

Nevertheless, after deliberating for approximately 35 minutes, the jury returned a zero (0) verdict.

After the jury was dismissed, and given the possibility of an appeal of the zero verdict entered, the parties remained in the courthouse and eventually negotiated a settlement of the case for $15,000.00. The last settlement offer prior to the commencement of the trial was $34,400.00.

[Past results are no guarantee of future results and each case must be handled on its own merits.]

Sunday, September 9, 2012

Third Circuit Addresses Auto Business Exclusion

In its recent decision in the case of Liberty Mutual vs. Sweeney, No. 11-4074 (3d Cir. Aug. 2, 2012), the Third Circuit Court of Appeals reversed judgment in favor of an insurer after finding that the auto business exclusion barring coverage for injuries sustained while using a non-owned motor vehicle in any kind of auto business did not apply to injuries sustained while the injured party was using a vehicle of another business for the purpose of running a personal errand, and even though the errand involved delivering a rental vehicle to a customer.  
The auto business exclusion in the case read, as follows:  "We will not pay for bodily injury sustained while using a non-owned motor vehicle in any kind of auto business.  Examples of auto businesses are: selling, repairing, servicing, storing, or parking motor vehicles."
The Sweeney case appears to address the rarely invoked auto business exclusion and may be a good case to review if you come across that issue. The opinion can be viewed online HERE.


Source:  “Court Summaries,” Pennsylvania Bar News (September 3, 2012) by Timothy L. Clawges.    

Wednesday, September 5, 2012

Pennsylvania Supreme Court to Decide Barrick v. Holy Spirit Hospital Expert Discovery Issue

According to an online article by Zack Needles in the September 5, 2012 Legal Intelligencer, the Pennsylvania Supreme Court has agreed to address the issue in Barrick v. Holy Spirit Hospital of whether or not communications between an attorney and his expert witness are discoverable.

By way of background, the Dauphin County trial court ruled that the communications were indeed discoverable where an in camera review of the communications by Plaintiff's counsel with the Plaintiff's medical expert could have materially impacted the expert's formulation of his opinion.

On appeal, an original three-member panel of the Superior Court affirmed the trial court's decision that the communications were discoverable.  Then, on re-argument before an en banc panel of the Pennsylvania Superior Court reversed and held that these communications were not discoverable.

In the one-page Order filed by the Pennsylvania Supreme Court Justices on August 31, 2012 granting allocatur, the Supreme Court noted that it will review the issue of "whether the Superior Court’s interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert.”

Source: Article:  "Justices to Decide Whether Attorney-Expert Communications are Discoverable" by Zack Needles, The Legal Intelligencer (Sept. 5, 2012).

Another Pennsylvania Federal Court Questions Which Restatement to Utilize in Products Liabiity Case

In the recent United States District Court for the Western District of Pennsylvania case of Westfield Insurance v. Detroit Diesel Corporation, No. 3:10-CV-100 (W.D. Pa. May 12, 2012 Gibson, J.), the Court addressed the Defendants’ Motion for Summary Judgment in a products liability case arising out of a tour bus fire that resulted in property damages to a band called Reliant K.  This case represents yet another matter in which a Pennsylvania Federal Court notes a lack of guidance with respect to which Restatement of Torts -- the Second or the Third -- to apply in products liability matters.

By way of background, in its Complaint, the Plaintiff, which was the insurance company as the van’s subrogee, alleged that a defective engine and/or related turbocharger caused the fire.  The Plaintiff sought recovery from the alleged designers, manufacturers, and distributors of the engine and its components under theories of strict product liability, negligence, and breach of warranty. 

In its decision, the Court ruled that, under the circumstances of this case, the Plaintiff was required to present expert evidence to support its claim that a defective bus engine and/or component turbocharger caused the fire in question.   The Court found that the expert evidence offered the Plaintiff was admissible despite the Defendants’ contention that such expert reports were inadmissible under Federal Rule of Evidence 702 and the Daubert standard.  

After reviewing the Plaintiff’s expert reports, the Court found that these reports fell well short of the reliability requirement of Federal Rule of Evidence 702 in that the Plaintiff’s experts’ reports amounted to a series of unsubstantiated conclusory statements not supported by any identifiable scientific methodology.   Accordingly, the Court elected to exclude the Plaintiff’s expert’s report as unreliable.  

Judge Gibson stated that, since the Plaintiff’s expert’s reports were excluded, the Plaintiff had not presented any expert testimony, as required, to support its claim that a defective engine and/or turbocharger caused the fire.   As such, the Court granted the Defendants’ Motion for Summary Judgment.

Judge Gibson went on to note that, even if the Plaintiff’s expert’s reports were not excluded, the Court would still grant summary judgment to the Defendants due to the admission of certain facts by the Plaintiff in the Motion for Summary Judgment proceedings.

The Court otherwise noted that the Plaintiff’s strict liability and negligence claims were deficient for failure to establish an essential element of both claims, that being that the product was defective.  In this regard, Judge Gibson stated that “[w]hether this Court applies the Second or Third Restatement of Torts, both require “Plaintiff to prove that the product was defective at the time it left the hands of Defendants.”

In this case, according to the Court, the Plaintiff only offered up a showing that the subject bus engine “failed” after 540,000, which was insufficient under either standard to establish the required element of showing that the product was defective.  

This case of Westfield v. Detroit Diesel Corporation represents another example of the continuing struggle of the federal courts over whether to apply the Second or Third Restatement of torts in Pennsylvania products liability cases.  

Anyone desiring a copy of this Opinion may click this LINK

I send thanks to Attorney James W. Scott, Jr., of the Philadelphia law office of Bodell Bove, LLC for bringing this case to my attention and providing a copy of the same. 

Source of Image:   Image:

Judge Nealon of Lackawanna County Addresses Allegations of Post-Claim Underwriting by Carrier

In his recent July 26, 2012 Decision in the case of AJT Properties, LLC v. Lexington Insurance Company, No. 08-CV-4252 (C.P. Lacka. Co. July 26, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed allegations of post-claim underwriting by a flood insurance carrier.  

In this case, a commercial property owner which suffered flood damage in June of 2006 filed suit against its building and personal property insurance company which had denied coverage based upon a policy exclusion for flood loss occurring on properties located within a Special Flood Hazard Area (SFHA).    The Defendant insurance company filed a Motion for Summary Judgment on the grounds that there was no genuine issue of material fact that the subject property was situated in an SFHA such that the Defendant insurer was allegedly entitled to judgment as a matter of law by virtue of the unambiguous policy language excluding coverage for flood loss in such a zone.  

According to the Opinion, the property at issue was originally inspected in May of 2004 and was determined not to be in an SFHA.   Two months after the insurer had issued the policy to the owner in January of 2006, another property survey was completed in March of 2006 to determine the insurability of the land and that inspection likewise concluded that the property was not in an SFHA district.  

However, after the owner submitted its flood loss claim following a flood in late June of 2006, the insurer retained a new inspector to examine the property’s flood zone classification.  That inspector issued a report concluding that the property was in an excluded SFHA.   Thereafter, the authors of the May of 2004 and March of 2006 flood exposure surveys revisited their original conclusions and now concurred with the insured’s second inspector that the property is in an SFHA.  

Judge Nealon found that, at the time that the owner purchased the insurance policy in early 2006, the insurance company sold flood insurance for properties in SFHA zones, but the owner was not offered the opportunity to purchase such insurance since the parties believed at that time that the property was not in a SFHA, as per the flood exposure inspection conducted on behalf of the insurer in March of 2006.   The court found that there were genuine issues of material fact as to whether the owner would have purchased SFHA flood insurance if the insurer had performed a proper survey in March of 2006 and had advised the owner that the property was located in an excluded SFHA.  

Judge Nealon stated that, depending upon how the jury resolved those factual issues, the insurance company may be equitably estopped from denying coverage based upon its post-claims survey establishing that the property is in an excluded SFHA.   Accordingly, the Court denied the carrier’s Motion for Summary Judgment based upon its SFHA exclusion as well as other arguments put forth by the carrier.  

Anyone desiring a copy of this decision may contact me at  

Monday, September 3, 2012

ARTICLE: U Need 2 Authentic8 TMs @ Trial

Here's a link to an article of mine entitled "U Need 2 Authentic8 TMs @ Trial" that appeared in the September/October 2012 edition of the The Pennsylvania Lawyer Magazine.

The article analyzes the criminal court decision of Commonwealth v. Koch in which the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pa.R.E. 901.  Obviously, this issue, which is now headed to the Pennsylvania Supreme Court via this case, could have an impact on the admissibility of such evidence in civil litigation matters.

The article can be viewed online by clicking this LINK.  I send thanks to Editor Don Sarvey of the magazine for agreeing to publish this piece.