Tuesday, February 28, 2012

Pennsylvania Superior Court Strictly Applies Statutory Mandates for UIM Rejection Forms

In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance Company, No. 397 W.D.A. 2011 (Pa. Super. Feb. 6, 2012 Musmanno, Alan and Mundy J.J.), (Opinion by Mundy, J.) (Alan J. dissenting), Court addressed coverage issues raised in a declaratory judgment action filed by an injured party insured in an underinsured (UIM) motorist benefits claim.

The question presented in this case centered around whether inclusion of additional language by the UIM carrier on its underinsured motorist insurance rejection form contained in the insured’s application failed to specifically comply with the statutory requirements and was therefore void.

Under 75 Pa. C.S. §1731, mandated requirements are set forth for the language of a rejection of underinsured motorist benefits form. According to the Opinion, the Unitrin Auto & Home Insurance Company UIM rejection form included all of the language mandated by §1731(c), (c.1), but also included an additional sentence that was not in the statutory form. The additional sentence read: “By rejecting this coverage, I am also signing the waiver on P. 13 rejecting stacked limits of underinsured motorist coverage.”

The Superior Court held that by including the additional language noted, the carrier failed to specifically comply with the statutory requirements with regards to the underinsured motorist insurance rejection form and, as such, the form was found void.

In reaching this decision, the Court noted that there was no appellate decisions addressing the affect of additional words on the validity of §1731(c) rejection form.

The Jones v. Unitrin court analyzed other decisions surrounding this issue, such as decisions addressing a carrier’s omission of certain words from the required form, American Intern. Ins. Co. v. Vaxmonsky, 916 A.2d 1106 (Pa. Super. 2006), and the Pennsylvania Supreme Court decision regarding whether the mandated form had to appear alone on a single page (it does not), Winslow-Quattlebaum v. Maryland Ins. Group, 752 A.2d 878 (Pa. Super. 2000).

Noting that the prior decisions have required that the subject form “specifically comply” with the requirements of §1731(c), the Superior Court in this Jones v. Unitrin case found that by adding a sentence to the form between the required language and the signature line, which sentence did not directly relate to the rejection of UIM coverage, the Unitrin UIM rejection form did not “specifically comply” with §1731(c) as required by §1731 (c.1).

In so ruling, the Pennsylvania Superior Court also refused to follow the prior decision of the Middle District Federal Court of Pennsylvania in the case of Unitrin Auto & Home Ins. Co. v. Heister, 2005 W.L. 2314372 (M.D. Pa. 2005) in which that court held that a UIM rejection form identical to the one at issue in this matter did specifically comply with §1731(c).

In sum, the Jones v. Unitrin Pennsylvania Superior Court held that the carrier’s additions to the prescribed language represented a deviation from the requirements of §1731 on the UIM rejection form rendered that form void. As such, the case was remanded back to the trial court for further proceedings.

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

Erie County Court of Common Pleas Severs Post-Koken Breach of Contract and Bad Faith Claims

In his February 22, 2012 Erie County Opinion and Order in the case of Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.), Judge Shad Connelly granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.

According to the Opinion, after a motor vehicle accident, the Plaintiff filed suit against Erie Insurance Exchange as the UIM carrier alleging a breach of contract and bad faith. The Defendant carrier responded by filing Preliminary Objections seeking, in part, to severe the breach of contract and bad faith claims for purposes of discovery and trial.

In the Opinion, the court noted that the Defendant had also separately filed a Motion to Stay Discovery related to the bad faith claim along with a Motion for Protective Order blocking the depositions of the Defendant’s claims adjuster. According to the Opinion, that separate motion was granted in terms of the stay of discovery and any deposition of the claims representative was limited to matters related to the breach of contract claim.

With regards to these Preliminary Objections at issue, the Defendant carrier argued that the breach of contract and bad faith claims should be severed so as to “facilitate the orderly presentation of evidence…and promote judicial economy.” The Defendant carrier also asserted that the bad faith discovery must be stayed because internal claims handling procedures, mental impressions of the claims handlers, and the Defendant carrier’s policies and procedures were not discoverable for purposes of UIM trial.

The Plaintiffs countered by arguing that the manner in which the Defendant performed under its contract was clearly relevant as to whether or not it breached a contract. The Plaintiff also asserted that a severance of the claims would not promote judicial economy.

In his Opinion, Judge Connelly confirmed that the Pennsylvania appellate courts have not yet ruled on the propriety of staying discovery in these types of cases.

Relying upon the severance rule found under Pa. R.C.P. 213(b), and the cases construing that rule, as well as a number of post-Koken trial court decisions on the issue from around the Commonwealth, Judge Connelly ruled that the breach of contract claim and the bad faith claim should be severed.

Concisely, Judge Connelly found, as have other court decisions on the issue, that "[i]t is in the best interests of judicial economy and fairness to stay discovery related to the bad faith claim until after disposition of the underlying claim.” Santos at p. 6. Accordingly, the Court granted the Defendant carrier’s Motion to Sever the claims for trial and discovery.

The Court also granted the Defendant carrier’s Motion to Strike the Plaintiff’s claim for punitive damages and attorney’s fees as to the breach of contract claim. The Court noted that, under Pennsylvania law, these types of damages are not recoverable under a breach of contract action. In so ruling, the Court pointed out that the Plaintiff essentially agreed with this position of the Defendant on this issue in terms of the breach of contract claim only.

I thank the prevailing attorneys Gregory P. Zimmerman and Craig Murphey of the Erie, Pennsylvania law firm of MacDonald, Illig, Jones & Britton, LLP for advising me of this decision.

Anyone desiring a copy of this decision in the case of Santos v. Erie Insurance Exchange may contact me at dancummins@comcast.net.

Summary Judgment Granted in Monroe County Slip and Fall Case

Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas recently issued a summary judgment in favor of a Defendant in the slip and fall case of Skulnik v. Tyerman, No. 836-Civil-2011 (C.P. Monroe Co. Feb. 13, 2012 Harlacher Sibum, J.).

According to the Opinion, the Plaintiff was allegedly injured as a result of a slip and fall accident that occurred on the Defendant’s driveway leading to a home. The Plaintiff claimed that the Defendants were negligent in failing to provide a safe driveway or warn of a dangerous or defective condition for business invitees.

The Defendants filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that dangerous levels of snow and ice accumulated so as to render the Defendant’s liable under the hills and ridges doctrine. The Defendants also asserted that he Plaintiff failed to connect the driveway conditions as a cause of his fall.

In her Opinion, Judge Harlacher Sibum confirmed that the Plaintiff was indeed a business invitee of the Defendants. According to the Opinion, accompanied by a professional inspector, visited the property in order to inspect its physical condition. The property at issue had been listed for sale by the Defendants who had invited individuals to come and view the property.

However, the Court found that, based upon the record presented, the Plaintiff had failed to offer evidence that the Defendants knew or should have known of any alleged dangerous condition on the premises.

According to the Opinion, the Defendant had testified that she saw no snow on the driveway on the morning of the incident. She also noted that her husband had still salted the driveway, a task he performed every morning prior to leaving to work. The record also showed that the Defendants were not even made aware of this alleged slip and fall incident until receiving a call from a claims adjuster several days after the fact.

Reviewing the Plaintiff’s testimony, the Plaintiff had asserted that there was a light snow in the driveway when he arrived at the property. The Plaintiff admitted that he did not recall having any trouble walking to the garage and did not feel any slippage of his feet. The Plaintiff also stated that he had no recollection of seeing anything on the driveway that caused him any concern. The Plaintiff additionally confirmed in his deposition testimony that he had not informed the Defendants of any dangerous conditions of the driveway prior to the time he fell.

The Court also found that the Plaintiff failed to meet the requirements of the hills and ridges doctrine. The hills and ridges doctrine provides that, given the impossible burden of requiring people to always keep their walkways free of ice and snow under the existing climatic conditions, provides that an owner or occupier of land is not liable for falls occurring on the property where generally slippery conditions exist unless the owner or possessor of land has allowed the ice and snow to unreasonably accumulate in ridges or elevations.

The Court found that the Plaintiff had failed to show any evidence of snow and ice that had accumulated in any ridges or elevations of such a nature that his travel was unreasonably obstructed or dangerous. The Plaintiff also failed to show that the possessors of land had any notice of any such alleged condition. Rather, the Plaintiff had only testified that there was a “light” snow on the driveway no more than one half in accumulations. The Court reiterated that the Plaintiff admitted that she did not recall having any problems walking up the driveway at his arrival to the premises.

In the absence of any evidence to support the same, the Court rejected the Plaintiff’s claim that he felt a “ridge” of ice under the light snow after he fell when he was pushing himself off of the ground. The Court noted that, in any event, the Plaintiff had no personal knowledge as to the length of time that that ridge allegedly existed prior to his incident. Based upon the Plaintiff’s testimony, the Court also found that, even if the Plaintiff’s testimony was accepted, the alleged accumulation of snow and ice, as described, was not in a ridge or elevation of such size in nature that travel was unreasonably obstructed or constituted a danger to pedestrians.

Lastly, the Court also found that the Plaintiff had not connected the allegedly dangerous accumulation of ice and snow to the fall that occurred.

Rather, a review of the Plaintiff’s testimony not only indicated that there was a very small accumulation of snow, that he never saw any “ridges,” and that he did not experience any slippage under his feet when he first arrived at the property. The evidence also confirmed that, with regards to the fall, the Plaintiff only testified that he was standing next to the inspector and the next thing the Plaintiff new, he had fallen to the ground. During his deposition testimony, the Plaintiff stated that he was merely standing and fell.

The Court found that the Plaintiff’s testimony describing a fall while standing in the driveway was not enough to support a claim that the driveway conditions caused the fall. The Court noted that mere speculation that the ice and snow caused the fall is not enough under the burden of proof required.

Based upon the above, the Court found that the Plaintiff’s claims were barred both by general principles of negligence as well as the hills and ridges doctrine. Accordingly, the Defendants’ Motion for Summary Judgment was granted.

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

Sunday, February 26, 2012

Beaver County Court of Common Pleas Allows Amendment of Post-Koken Complaint

Tort Talkers may recall an early post-Koken case out of Beaver County by the name of Bradish-Klein v. Kennedy, No. 11548 - 2009 (C.P. Beaver Co. 2012). This post provides an update in that matter.

In this post-Koken case it appears that the claim against the third party tortfeasor has since been settled and the Plaintiff has continued on with the UIM claim against State Farm. The case has proceeded through the discovery efforts, including State Farm’s request for the insured to undergo an IME even though the insured had previously undergone an IME at the request of the third party tortfeasor.

The Bradish-Klein case recently came back before the Court again on the Plaintiff’s Motion to Amend its Complaint to include a bad faith count against State Farm, alleging a period of delay in the payment of the UIM benefits and with regards to State Farm’s alleged “forcing” the insured to undergo an additional independent medical examination.

After argument and briefs submitted on the Plaintiff’s Motion to Amend to add a bad faith count, Judge Anthony Kwidis granted the Plaintiff’s Motion to Leave of Court to file the Amended Complaint. In his two lined Order, the Court indicated that any claims of lack of specificity of the claims presented would be addressed after the Amended Complaint was filed.

It has also been reported that the judge would additionally entertain a Motion to Stay the bad faith count pending the resolution of the UIM count. That remains to be seen.

Anyone desiring a copy of Judge Kwidis’ Order granting the Motion to File an Amended Complaint may click on this link.

Thursday, February 23, 2012

Summary Judgment Entered In York County Limited Tort Case

In the recent December 16, 2011 decision by Judge John W. Thompson, Jr., of the York County Court of Common Pleas in the case of McWeeney v. Estate of Strickler, No. 2009-SU-6582-01 (C.P. York Dec. 16, 2011 Thompson, J.), the Court granted a Defendant’s Motion for Summary Judgment and denied a Plaintiff’s Motion for Partial Summary Judgment in a Limited Tort case.

According to the Opinion, at the time of the accident, the injured party Plaintiff was operating a vehicle owned by her fiancé. That vehicle was covered by Progressive Insurance Company and listed the fiancé as the “Named Insured” under a Limited Tort policy. However, both the injured party Plaintiff and her fiancé were listed as principal drivers on the policy declarations page. The court additionally noted that the injured party Plaintiff was a permissive driver of the vehicle on the date of the accident.

The Defendant filed a Motion for Summary Judgment arguing that the Plaintiff was covered by the Limited Tort option and had not sustained any serious injuries so as to breach the Limited Tort threshold. In response, the Plaintiff filed a counter-motion arguing that she was not bound by the Limited Tort option because she was not “a named insured” or “insured” within the definition provided under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §1705.

In its decision, the Court found, as a matter of law, that the Plaintiff was insured under the Limited Tort option of the Progressive policy. The Court noted that, under an application of the MVFRL, as well as the terms of the Progressive Insurance policy, it appeared that the injured party Plaintiff fell within the definition of an “insured person” under that policy, at the very least, as a permissive driver of the covered vehicle and as a person listed as one of the principal drivers on the declarations page.

Based on these facts, the Court felt that the Plaintiff did indeed fall under the definition of a “named insured” as found under 75 Pa.C.S. §1705(f) (“a named insured” for purposes of §1705 is “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.”).

The Court went on state that, as a named insured, the injured party Plaintiff would be held to the same tort option selected by the other named insured under the policy, i.e., the Limited Tort option in this case.

Having found that the injured party Plaintiff was bound by the Limited Tort option, the Court went on to note that, in its filings, the Plaintiff admitted that, if the Plaintiff was indeed Limited Tort, the Plaintiff agreed that her injuries did not rise to the level of a serious bodily injury to pierce the Limited Tort threshold. Accordingly, the Court ruled that, based upon this admission, the Plaintiff was unable to recover any non-economic loss, or pain and suffering damages, in this case.

Furthermore, since the Plaintiff admitted that her injuries did not affect her ability to earn income given that she was a full-time college student at the time of the accident, the Court went on to grant the Defendant’s Motion for Summary Judgment in its entirety as there was no valid economic damages claim presented.


I thank the prevailing defense attorney, Erick Violago, of the Harrisburg law firm of Griffith, Strickler, Lerman, Solymos & Calkins for forwarding this case to my attention. Anyone desiring a copy of this case, may click this link.

Wednesday, February 22, 2012

Major Pennsylvania Supreme Court Ruling: Uninsured Motorists Can Sue for Wage Loss and Medical Expenses

The Pennsylvania Supreme Court has issued a long-awaited important decision in the case of Corbin v. Khosla, 48 EAP 2010 (Pa. Feb. 21, 2012  McCaffery, J) in which they addressed the issue of whether an uninsured driver injured in a motor vehicle accident may sue the defendant driver for economic damages (medical expenses and wage loss).

The Supreme Court noted that Pennsylvania's Motor Vehicle Responsibility Law prohibits such uninsured drivers from recovering first party benefits (medical expenses and wage loss) under 75 Pa.C.S.A. 1714.  However, the Court also pointed out that the same uninsured drivers are deemed to be considered to be covered by the limited tort option under 75 Pa.C.S.A. 1705 which statute allows limited tort claimants to recover economic damages (medical expenses and wage loss) from negligent defendant drivers.

This issue came to the Pennsylvania Supreme Court by way of a certification of the question presented to the Court from the Third Circuit Court of Appeals.

After reviewing the history and law applicable to the issue presented, the Pennsylvania Supreme Court noted the distinct differences between how first party claims and third party claims are viewed such that the Court found that there was no ambiguity in the above stated statutory provisions. 

The Pennsylvania Supreme Court went on to hold that, while there are some penalties assessed to an uninsured driver for driving without insurance (no first party benefits, limited tort status, criminal penalties), there is no recognized prohibition against an injured uninsured motorist pursuing a claim against another negligent driver to recover the injured party's economic damages such as wage loss and medical expenses in addition to the ordinary claims for pain and suffering.

Concisely, the Pennsylvania Supreme Court ruled that Section 1714 of the MVFRL does not preclude an injured uninsured motorists from pursuing and recovering medical expenses or wage loss from the other negligent driver.

Justice McCaffery's Majority Opinion can be viewed here.

Justice Saylor's Concurring Opinion can be viewed here.

Failure To Disclose Claim Allowed To Proceed in Lackawanna County Residential Real Estate Transaction Case

In his recent February 8, 2012 decision in the case of Brown v. Jones, No. 11-Civil-5253 (C.P. Lacka. Co. Feb. 8, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections in the nature of a demurrer filed by the Defendants against the Plaintiff’s causes of action for violation of the Real Estate Seller Disclosure Law, 68 Pa. C.S. §7301 et. seq., and common law fraud.

According to the Opinions, in April of 2010, the Plaintiffs and the Defendants executed an Agreement of Sale related to the Plaintiff’s purchase of the Defendant’s residential property.

In connection with the real estate transaction, the Defendant prior homeowner provided the Plaintiff new homeowner with an original Property Disclosure Statement along with a Supplemental Disclosure Statement which the original homeowner had prepared and signed in compliance with the above-stated law.

In that documentation, the original homeowner represented that the property’s roof had never leaked during the court of their ownership nor were they aware of any leakage, accumulation, dampness in the basement or any repairs to control any water or dampness problem in the basement. The original homeowner also denied any knowledge or any water damage or drainage issues on the property. Based upon these representations, the new homeowners closed on the property and purchased the same.

Thereafter, during a significant rainfall in the Fall of 2010, the new homeowners sustained extensive water damage to their finished basement allegedly due to considerable water leakage in four separate areas of the basement.

After the water damage persisted with each ensuing rainfall or snow melt, the new homeowners took remedial action by removing the drywall and carpeting in the basement. That allegedly revealed that the water damages were of a “historic nature."  There was also allegedly evidence that the foundation had been previously treated which allegedly indicated knowledge of a leakage problem by the prior owners.  According to the Opinion, the basement floor continued to become covered with water with each additional rainfall.

The new homeowners also alleged other water damage as a result of a leaking roof. The new homeowners asserted that, after the purchase of their home and after noticing water damage from the leaking roof, they discovered plastic sheeting on the attic floor along with absorbing carpeting which lead them to believe that the prior homeowners were also aware of leaking water from the roof area.

Based on these recurring issue, the new homeowners filed suit.

In their demurrer to the Plaintiff's Complaint, the Defendants asserted that the Plaintiffs had failed to allege with any particularity the specific allegedly fraudulent representations made by the original homeowners. The Defendants asserted that it appeared that the Plaintiffs were simply concluding that because the property sustained water damages, the original homeowners may have known about leaks and failed to disclose them.

According to the Court, it appeared that the gist of the Defendant's argument in support of their demurrer was that the requisite intent to defraud could not established under Pennsylvania law by circumstantial evidence.

After reviewing the case presented and providing a detailed analysis of the Real Estate Seller Disclosure Law, Judge Nealon found that the Plaintiff’s Complaint stated sustainable causes of action under that law as well as under a claim of fraudulent misrepresentation. In so ruling, Judge Nealon also pointed out that the scienter component of a fraud claim “may be established by circumstantial evidence.”  
Accordingly, the Court overruled the Defendants’ Preliminary Objections and allowed the Plaintiff’s claim to proceed.

Anyone desiring a copy of this Decision by Judge Nealon in the case of Brown v. Jones may contact me at dancummins@comcast.net.

Lamp v. Heyman Standard Utilized in Beaver County Service of Process Case

In the recent Beaver County case of Clark v. Murphy, No. 12166 of 2006 (C.P. Beaver Co. Jan. 23, 2012 Kunselman, J.), Judge Debra A. Kunselman granted a Defendant’s Motion for Summary Judgment based upon the fact that the Defendants were not served with a Complaint or a Writ of Summons in the two-year statute of limitations in a motor vehicle accident case.

According to the Opinion, the subject motor vehicle accident occurred on November 4, 2004. The Plaintiff filed a Writ of Summons nearly two years later on October 23, 2006. The Defendant, Debra Murphy, was not served with original process until October 30, 2007, i.e. about a year after the expiration of the statute of limitations. The other Defendant, Elizabeth Murphy, was not served until November 7, 2007, which was also long after the expiration of the statute of limitations.

Applying the standard set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the Court found that the Plaintiff did not make a good faith effort to effect service of process in a timely manner prior to the expiration of the statute of limitations. The Court noted the exception to this rule exists when a Defendant has actual notice of the lawsuit. In such situations, once a Plaintiff has proven actual notice, the Defendant must show prejudice before the case will be dismissed. McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2006).

The Court in this matter found that the exception did not apply as there was no evidence that the Defendants had actual notice of the lawsuit. The Clark court also went on to rule that the Plaintiff had not sustained his burden of proving a good faith effort to complete service. In its Opinion, the court outlined the efforts made by the Plaintiff. As such, the Court granted summary judgment in favor of the Defendants on the lack of timely service of original process issue.

I thank Attorney Kassie Segmiller of the Pittsburgh law firm of Segmiller & Mendicino for advising me of this decision. Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

Sunday, February 19, 2012

Monroe County Court Denies Motion To Amend Complaint to Add Correct Defendant After Expiration of Statute of Limitations

In her December 20, 2011 decision in the case of Hilbert v. Maula, PICS Case No. 12-0284 (C.P. Monroe Co. Dec. 20, 2011 Wallach Miller, J.), Monroe County Judge Linda Wallach Miller denied a Plaintiff’s request to amend a caption to add a new party after the expiration of the statute of limitations.

According to the Opinion, the Plaintiff sustained injuries while fighting a fire a vacant commercial building. The Plaintiff filed suit against various Defendants, including an entity that the Plaintiff believed owned the property in question.

When discovery later revealed that the building was owned by another entity, the Plaintiff filed a Motion, after the expiration of the statute of limitations, to amend the caption to join that other entity as a Defendant.

In that motion, the Plaintiff asserted that the Defendant concealed the true identity of the owner of the premises and, as such, the amendment should be permitted. The Plaintiff also stated that he had relied upon the Fire Marshall’s report which identified the wrong entity as the owner of the building. The Plaintiffs additionally alleged that one of the Defendants gave incorrect information as to identity of the owner.

The Court, however, found that the Plaintiff had failed to demonstrate how one of the original Defendants had actively concealed the true identity of the owner of the building. Judge Miller also noted that Plaintiffs have a duty to use all reasonable diligence to properly inform themselves of the facts and circumstances upon which to commence a lawsuit within the prescribed period of time.  In denying the motion at issue, Judge Miller pointed to the rule of law holding that an alleged lack of knowledge, mistake, or misunderstanding do not serve to toll the statute of limitations.

Accordingly, the court denied the Plaintiff’s Motion to Amend. In so ruling, the Court pointed out that a search of the public tax records and recorder of deeds records would have disclosed the identity of the proper owner of the premises in question.

I do not have a copy of this decision but it can be ordered from the Pennsylvania Law Weekly by giving the above PICS Case Number in the citation noted and calling 1-800-276-7487 to request the same in exchange for a small fee.

Summary Judgment Entered in Monroe County Single Grape Slip and Fall Case



In the case of Stagnito v. Weis Markets, Inc., PICS Case No. 12-0226 (C.P. Monroe Sept. 2, 2011 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas entered a summary judgment in favor of a Defendant grocery store in a slip and fall case where the Plaintiff alleged that she was caused to fall by a single grape on the floor.

In her Opinion, Judge Harlacher Sibum noted that the Plaintiff did not offer any evidence that the Defendant store had any actual notice of the grape or that the store had allegedly created the allegedly harmful condition.

The Court also ruled that the Plaintiff had not produced evidence to support a burden of showing that the Defendant store had constructive notice of the allegedly dangerous condition. According to the Opinion, the Plaintiff was unable to state how the grape came on the floor or how long it was there.

The store employees also testified that they did not see the grape and did not know where it came from or how long it had been on the floor. It was also noted that there was no testimony presented that any customers had previously complained about the grape before the Plaintiff’s allegedly incident.

Judge Harlacher Sibum also found that the Plaintiff did not establish that the Defendant store was negligent in failing to have a procedure in place to police the safety of the store, particularly where the Plaintiff did not establish that a reasonable inspection would have prevented the Plaintiff’s alleged injuries in any event. The Court found that this case was distinguishable from cases in which the Defendant did have procedures in place and had deviated from them.

In granting summary judgment in favor of the Defendant store, the Court held that “Plaintiffs cannot prove that defendant failed to exercise reasonable diligence in discovering this single grape, or that the grape had been permitted to remain on the floor for an unreasonably long period of time.”

I do not have a copy of this Decision but a copy can be purchased for a small fee from the Pennsylvania Law Weekly by calling 1-800-276-7487 and giving them the above PICS Case Number noted in the citation.

Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (February 14, 2012).

Source of photoImage: Ambro / FreeDigitalPhotos.net

Thursday, February 16, 2012

SECURE YOUR SPOT: REGISTRATION OPEN FOR TORT TALK EXPO 2012

The lineup has been finalized for the TORT TALK EXPO 2012 CLE Seminar, which is set to take place on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

The Pennsylvania CLE Board has approved the seminar for 2 substantive and 1 ethics credit.

In addition to my presentation of an Auto Law Update, the other presenters will include Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price on a Civil Litigation Update, as well as noted expert radiologist (and attorney) Dr. Michael Brooks presenting on diagnostic studies in personal injury matters, with an emphasis on auto accident matters.

The stellar Judicial panel for the "View from the Bench" portion of the program will consist of Pennsylvania Supreme Court Justice Michael Eakin, President Judge of the Superior Court Correale Stevens, and U.S. Third Circuit Court of Appeals Judge Thomas Vanaskie.

President Judge Thomas F. Burke, Jr. will also provide a "State of the Luzerne County Bench" presentation, reporting on which new judge will be handling which types of cases along with an update on the current status of the Luzerne County civil trial backlog.

The View from the Bench portion will be presided over by former Luzerne County Judge Joseph Van Jura, who recently completed his appointment and has returned to private practice where he is also offering his services for Mediations and Arbitrations.

In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators. To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):


Courtside Documents: http://www.courtsidedoc.com/

 







Minnesota Lawyers' Mutual: http://www.mlmins.com/



RecordTrak:  www.recordtrak.com






Veritext:  www.veritxt.com


The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can continue to network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

Also, a portion of the proceeds from this event will be donated to a local charity to be determined.

The CLE Program will include the following topics and presenters:


TORT TALK EXPO 2012


Presented by


Daniel E. Cummins, Esquire

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday, May 3, 2012

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

2 Substantive & 1 Ethics CLE Credits

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


12:30 – 1:00 pm     Registration


1:00 – 1:30 pm: The Tort Talk Auto Law Update
Presenter: Daniel E. Cummins, Esq.


1:00 – 1:30 pm: The Tort Talk Civil Litigation Update
Presenter: Paul T. Oven, Esq.


2:00 – 2:15 pm BREAK
 
2:15 - 3:15 pm: Introductory Medical Conditions & Radiological Issues
in Auto Accident Injuries
Presenter: Dr. Michael L. Brooks, M.D., J.D., FCLM


 

3:15 – 3:30 pm BREAK


3:30 – 4:30 pm A View from the Bench: Ethical Issues in Legal Writing and Advocacy
Before the Court in an Electronic World

Moderator:

Hon. Joseph Van Jura (Ret.)


Presenters:

Pennsylvania Supreme Court Justice Michael Eakin

President Judge of Superior Court Correale Stevens

U.S. Third Circuit Court of Appeals

Judge Thomas I. Vanaskie

Luzerne County President Judge Thomas Burke, Jr.


 

COCKTAIL RECEPTION TO FOLLOW

AT BREAKERS

4:30p.m. - 6:30p.m.

Costs below cover both CLE Seminar and Cocktail Reception:

Claims professionals/representatives
and risk managers

$25.00


Lawyers

$165.00
Please make checks payable to "Tort Talk."




For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.
 
Name(s)____________________________________

Firm/Company_______________________________


PLEASE MAIL REGISTRATION FORM AND PAYMENT TO:
TORT TALK

c/o Daniel E. Cummins, Esq.

Foley, Cognetti, Comerford, Cimini & Cummins

507 Linden Street

Suite 700

Scranton, PA 18503

For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.
 
HOPE TO SEE YOU THERE!


































































Wednesday, February 15, 2012

Beware of Bathroom Wall Mounted Hand Dryers



In the case of Crivaro v. BJ’s Wholesale Club, PICS Case No. 12-0213 (C.P. Monroe Co. Sept. 29, 2011 Wallitch Miller, J.), the Court granted summary judgment in favor of a Defendant on a business invitee/premises liability case based upon the placement of a wall mounted hand dryer in the store's bathroom.

According to the Opinion, the Plaintiff was shopping at the Defendant store in Monroe County, Pennsylvania. While in the restroom drying his hands with a air blower that was mounted on the wall near the bathroom door, the Plaintiff was struck on the right shoulder and arm when another customer opened the bathroom door.

The Plaintiff filed a lawsuit against BJ Wholesale Club claiming that the injuries to his right shoulder and arm were a result of the allegedly negligent positioning of the hand dryer on the bathroom wall near the bathroom door.  The Plaintiff also claimed that the Defendant store was negligent for failing to warn customers that such an accident could happen.

Following discovery, the Defendant store filed a Motion for Summary Judgment arguing that the Plaintiff had failed to establish that the Defendant had breached any duty to the Plaintiff or that the Defendant’s actions or inactions caused any injuries to the Plaintiff.  The Motion was assigned to Judge Linda Wallach Miller for a decision.

While the court recognized that a possessor of land was liable for an injury to a business invitee like the Plaintiff if (1) the possessor of land knows or should have known of the allegedly dangerous condition, (2) that such condition involved an unreasonable risk of harm, (3) that the invitee would fail to protect himself, and (4) where the Defendant did not exercise reasonable care to protect the invitee against that danger, the Court also recognized the rule of law that “the mere existence of a harmful condition or happening of an accident does not raise the presumption of negligence.”

Judge Wallach Miller ruled that the Plaintiff did not establish that the placement of the wall hand dryer constituted an unreasonable risk of harm to business invitees. The court also found that the Plaintiff’s alleged injuries were not caused by the placement of the dryer, but rather by the door being opened by an other customer.

Given that the Court found that the Plaintiff had failed to establish the duty and causation elements for a negligence cause of action, the Court entered summary judgment in favor of the Defendants.


I do not have a copy of this Opinion. A copy of this Opinion can be secured from the Pennsylvania Instant Case Service run by the Pennsylvania Law Weekly.  A copy of the case can be secured by calling 1-800-276-7787 and paying a small fee.

If anyone can send me a copy of this case, I will share it here on Tort Talk.


Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (February 7, 2012).

Source of photo: www.turbosquid.com

Judge Nealon Analyzes Quality-Quantity Test for Proper Venue Over Corporate Defendant



In a January 23, 2012 Opinion in the Lackawanna County Court of Common Pleas case of Jacobson v. The Shay Agency, No. 2011-CV-5965 (C.P. Jan. 23, 2012 Nealon, J.), Judge Terrence R. Nealon addressed a challenge to proper venue asserted by the a business defendant in this breach of contract action arising out of an employment agreement between the Plaintiff and the Defendant.

The Defendants in this matter contended that venue was improper in Lackawanna County since the individual Defendant resided in Luzerne County, the agency Defendant maintained its registered office in Luzerne County, and since the agency Defendant did not regularly conduct business in Lackawanna County.

The Plaintiff countered that venue was proper in Lackawanna County as the agency Defendant regularly conducted business in Lackawanna County.

In his Opinion, Judge Nealon conducted a detailed review of the Rules of Civil Procedure pertaining to venue and also outlined the “quality-quantity” analysis adopted under Pennsylvania law to determine whether a corporation or a similar entity regularly conducted business in a given county.

The Court noted that the quality component of this test is satisfied if the actions that the business entity performs in the chosen forum further, or are directly related or essential to, its business objectives.

Under this "quality-quantity" analysis, quantity means that the acts are sufficiently continuous so as to be considered habitual for purposes of venue.

Applying the facts pertinent to the venue issue to the applicable law, Judge Nealon determined that the factual representations put forth by the Plaintiff adequately established that venue was indeed proper in Lackawanna County.

Anyone desiring a copy of this Opinion by Judge Nealon in the case of Jacobson v. The Shay Agency may click this link.

Federal Middle District Court Judge Caputo Rejects Request to Stay UIM Arbitration

In a recent January 27, 2012 Opinion in the case of Hartford Insurance Company of the Southeast vs. Stead, United States District Judge for the Middle District of Pennsylvania, No. 3:12-CV-0094 (M.D. Pa. Jan. 27, 2012, A. Richard Caputo J.), addressed an Emergency Motion for Stay of Arbitration filed by the insurance company.

In its motion, the carrier sought declaratory relief barring issues of coverage from being determined at an underinsured motorist arbitration that was scheduled to take place a few days after this Opinion was handed down.

The Court noted that, although the carrier previously consented to an arbitration, the carrier sought to have its arbitration agreement rescinded and/or in the alternative, have the arbitration stayed until the Court could issue such relief as was requested under the declaratory judgment act on various coverage issues. According to the Opinion, the carrier was concerned that the arbitration panel would possibly erroneously decide the coverage issues at the upcoming arbitration hearing, after which Hartford would have no ability to appeal this determination.

The injured party Claimants countered that, pursuant to the Declaratory Judgment Act, the Court should decline jurisdiction over the state law issues raised by virtue of this motion by the carrier.

After reviewing the case presented as well as the law governing the jurisdictional issues presented, Judge Caputo ruled he would dismiss the actions for lack of jurisdiction.

In so ruling, the Court covered, in great detail, the analysis adopted by the Third Circuit Court of Appeals in addressing whether or not federal courts should entertain declaratory judgment issues. In this matter, Judge Caputo found that the insurance company’s claim did not “raise a single federal issue.” Instead, all that was raised was “solely a question regarding insurance coverage which, as Hartford admits, involved ‘no unsettled areas of state law.’”

Accordingly, Judge Caputo found that this matter involved a purely state law issue and, if this case was simply one involving declaratory relief only, the Court would elect to exercise its discretion and decline jurisdiction.

However, before dismissing this action, the Court also reviewed the fact that, as the carrier pointed out, this action involved a “mixed claim” that was not seeking pure declaratory relief, but also injunctive relief in the form of a request for a stay of the arbitration.

Judge Caputo noted that the determination of whether to exercise jurisdiction over a mixed claim such as this one involving requests for both injunctive and declaratory relief was an issue that had not been addressed by the Third Circuit or the United States Supreme Court. Judge Caputo also noted that the other circuit courts that have considered this jurisdictional issue were “sharply divided.”

After reviewing the various approaches on the issues presented as found in the other circuit courts, Judge Caputo elected to follow the “heart of the action” approach. Under this analysis, “a court will look to whether the nucleus of an action is declaratory or coercive, and will exercise jurisdiction over the whole if the core is coercive, and will exercise discretion as to both claims if it is declaratory. To determine such ‘heart of the matter,’ these courts will consider whether the injunctive claim hinders on the declaratory ones.”

Applying that analysis to this matter, the court found that, to the extent the carrier was seeking injunctive relief, such relief was wholly contingent on the court’s ultimate determination on the declaratory judgment issues. As such, the court found that the “heart” of this issue is squarely an action for a declaratory judgment and, as such, the court maintained its original determination to exercise its broad discretion decline jurisdiction in this matter.

Judge Caputo concluded his Opinion, as follows: “Currently before the court of fundamentally state law questions concerning insurance, arbitration, and stacking. As this action is inherently one for declaratory judgment, coupled with a claim for injunctive relief to assist and implement any such declaratory judgment, the court will exercise its discretion to decline jurisdiction and dismiss this matter as one more appropriate for the state court.”

Anyone wishing to review this Opinion by Judge Caputo in the case of Hartford Insurance Company of the Southeast vs. Stead may click here.

Tuesday, February 14, 2012

Judge Nealon of Lackawanna County Allows Bystander Theory NIED Claim to Stand in Medical Malpractice Case

In his recent January 11, 2012 decision in the case of Mellor v. O’Brien and Moses Taylor Hospital, et. al., No. 2011-CV-5741 (C.P. Lacka. Co. Jan. 11, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Preliminary Objections filed by medical malpractice Defendants seeking to dismiss Plaintiff’s claims for negligent infliction of emotional distress [NIED] and punitive damages.

According to the Opinion, this medical malpractice action arises out of the treatment of the Plaintiff's infant who passed away 45 days following her birth.

Among other claims in her Complaint, the Plaintiff alleged that she personally observed the Defendants’ alleged negligent failure to treat her child in the emergency room, watched her child suffer there and at home, and witnessed the child’s death at the Defendant hospital. Based on these allegations, the Plaintiff asserted a claim for negligent infliction of emotional distress under the bystander theory.

The Defendants challenged the legal sufficiency of the negligent infliction of emotional distress claim on the grounds that the Plaintiff only alleged negligent inaction on their part, rather than a contemporaneous observance of a discrete traumatic event. The Defendants also argued that the lay person Plaintiff additionally failed to allege any contemporaneous understanding that the medical care provided was allegedly negligent.

After reviewing the applicable law on this issue, Judge Nealon ruled that the Plaintiff had indeed stated a cognizable claim for negligent infliction of emotional distress even though the alleged negligence involved acts of omission and even though the Plaintiff may not have realized that the treatment at issue allegedly deviated from the applicable standard of care.

With regards to the Defendants’ demurrer to the Plaintiff’s punitive damages claims, it was the Defendants’ contention that the Plaintiff did not allege sufficient facts demonstrating reckless conduct by the healthcare providers.

Judge Nealon applied the allegations in the Complaint against the applicable law. The Court ruled that, although recent Superior Court precedent in Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009) appeal denied, 989 A.2d 914 (Pa. 2010), suggested that recklessness may be averred generally under Pa. R.C.P. 1019(b) could have supported a denial of the demurrers, the Court in this case of Mellor also found that the Plaintiff did allege specific facts indicating allegedly recklessly indifferent conduct by the healthcare providers as well as with respect to the hospital’s alleged vicarious liability for such alleged recklessness pursuant to 40 Pa. C.S. §1303.505(a)(c) [The Medical Care Availability and Reduction of Error Act (MCare Act)].

Accordingly, the Court overruled the demurrers to the Plaintiff’s claim for negligent infliction of emotional distress and punitive damages.

Anyone desiring a copy of this Opinion may click here.
To view more Tort Talk posts on recent cases concerning the cause of action for negligent infliction of emotional distress, click here.

Superior Court Rules that UM Carrier Properly Denied Coverage for Late Notice

In the latest chapter of a Luzerne County uninsured motorist (UM) benefits case that has gone up and down the appellate ladder, The Pennsylvania Superior Court has ruled in Vanderhoff v. Harleysville Ins. Co. No. 1575 MDA 2010 (Pa. Super. Feb. 6, 2012 Panella, Stevens, Bender, JJ.)(Opinion by Panella) that an insurer was prejudiced by the insured's failure to timely notify it that a phantom vehicle had been involved in an accident before filing a claim for uninsured motorist benefits.

Under the facts of this case there was a dispute as to whether a phantom vehicle was involved in the accident.  Also, the injured party claimant also asserted he believed the existence of the phantom vehicle had been documented in the police report but did not notice until several months later that there was no mention of the phantom vehicle in the police report.

According to the opinion, the Claimant did not put the carrier on notice of the UM claim until about eight (8) months after the accident.  The court noted that both the insurance contract language and Pennsylvania Motor Vehicle Financial Responsibility Law had provisions requiring that such notice be given within thirty (30) days of the accident.

Applying the facts of the case to the requirement that the carrier show prejudice before a UM claim can be denied for late notice, the Superior Court found that the carrier had established its burden of proof in this regard.

Judge Panella noted that "The entire justification for the requirement of a timely report of an unidentified vehicle to an insurer is to allow the insurer to investigate the accident to discover evidence," Panella said. "It is nearly axiomatic that the insurer cannot know what evidence it might discover in such an investigation."

Anyone wishing to review this Opinion in Vanderhoff v. Harleysville Ins. Co. may click here.

Source:  Article by Zack Needles in Feb. 14, 2012 Legal Intelligencer entitled "Insurer Prejudiced by Late Notice of Phantom Vehicle in Luzerne Co. Case.

Friday, February 10, 2012

Beaver County Court of Common Pleas Severs and Stays Bad Faith Claim in Post-Koken Lawsuit

The Beaver Count Court of Common Pleas recently issued a Memorandum Opinion in the case of Muller v. Erie Insurance Exchange et al., No. 11362-2011 (C.P. Beaver Co., February 1, 2012, Kunselman, J.), granting the preliminary objections of Erie Insurance Exchange and ordering the contractual and statutory bad faith counts to be severed  from the underinsured motorist breach of contract count.   The Court also issued a stay order on the bad faith action.

Judge Kunselman agreed with the defense argument that the two causes of action arose out of distinct factual and legal issues.

The Court also struck the plaintiff’s claims for attorney’s fees in the UIM breach of contract action, but elected to allow the emotional distress claims to be pursued as part of the pain and suffering claims in the contract action.

This Beaver County decision, which is consistent with prior decicisons out of that county in favor of the severance of Post-Koken claims, appears to be the first decision in that County in which the court elected to sever and stay bad faith claims from UIM breach of contract claims.

Attorneys Arthur J. Leonard and James J. Buldas of the Pittsburgh office of Robb Leonard Mulvihill, LLP were were the prevailing counsel on this issue for Erie Insurance.

Anyone desiring a copy of this Beaver County Opinion in the case of Muller v. Erie Ins. may contact me at dancummins@comcast.net.

FORM: Motion to Bifurcate Trial and Supporting Brief from Post-Koken Auto Accident Case

As the novel Post-Koken cases (lawsuits with combined third party negligence claims and UIM claims) begin to reach the trial level, there may be an increase in trial court decisions addressing trial related issues, including but not limited to, whether such claims should be bifurcated into two separate trials.

I recently had an opportunity to draft a Motion and a supporting Brief on a Motion to Bifurcate a consolidated Post-Koken lawsuit into two separate trials in Lackawanna County.  That issue is set to be argued on March 1, 2012.

Anyone desiring a copy of these filings as a form for future reference in the event that they may help you can contact me at dancummins@comcast.net.

Tuesday, February 7, 2012

Interesting Erie County Decision Dismissing Claims by Former Superior Court Judge Michael Joyce

The Erie County Court of Common Pleas recently issued an interesting January 25, 2012 Memorandum Opinion in the case of Joyce v. Erie Ins. Exchange et al., No. 13656 of 2011 (C.P. Erie Co. Jan. 25, 2012 Morgan, S.J.), granting the demurrers of Erie Insurance Exchange and State Farm Mutual Automobile Insurance Company to claims for fraud, breach of contract, unjust enrichment, and other claims pursued by former Superior Court Judge Michael Joyce.

I thank the prevailing defense attorney for State Farm, Daniel Rivetti of the Pittsburgh law firm of Robb Leonard Mulvihill for advising me of this decision.

Anyone desiring a copy of this interesting Opinion may contact me at dancummins@comcast.net (I note that the underlines and other markers on the copy of this Opinion are not mine but were on the document when I received it).

Copy of Berks County Negligent Entrustment/Cell Phone Use Decision Secured

I have secured a copy of the Good v. Whitt Berks County decision I summarized in yesterday's blog post in which the court denied a negligent entrustment claim against a defendant owner based, in part, on the defendant driver's use of a cell phone at the time of the motor vehicle accident at issue.  Anyone desiring a copy may contact me at dancummins@comcast.net.

I send thanks to Attorney Jeffrey B. Rettig of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner, as well as Attorney Frank Baker of the Bethlehem, PA office of Marshall, Dennehey, Warner, Coleman & Garner, for forwarding a copy of the same.

CLE at the Phillies


I have just signed up with the PBI to present an hour-long CLE program at Citizens Bank Park before the Thursday, August 30, 2012 1:05 pm Phillies game against the New York Mets.  The CLE will be one substantive credit hour from 11:30 am to 12:30 pm and will include a lunch.  Check-in and lunch begin at 11 am.

I plan to give a Civil Litigation Update as well as present my article "Take Me Out to the Ballgame:  Little League Tips for Big League Lawyers" via a powerpoint presentation.  That article can be viewed here.

Should be a nice event.  Hope you plan to play hooky that day and join me for a nice day at the ballpark (just like Ferris Bueller).  I will post more details here as they become available.

Negligent Entrustment Claim Based on Cell Phone Use by Driver Rejected

In the Berks County case of Good v. Whitt, 104 Berks 62 (C.P. Berks Oct. 20, 2011), the court entered summary judgment in favor of the Defendant owner of a vehicle on a negligent entrustment claim in a case where the Plaintiff alleged the negligent entrustment of a vehicle to a young, inexperienced driver who was using a hand-held cell phone at the time of the accident.

The Plaintiff alleged that the inexperienced driver’s use of a hand-held cell phone at the time of the accident resulted in inattentiveness that caused the accident.

The court found that there was no evidence that the driver had a reputation as an unsafe driver so as to put the Defendant owner on notice that his entrustment of the vehicle to that driver would be negligent conduct. Additionally, the court found that the Defendant owner had no reason to believe that the driver was using a cell phone while driving or that the driver would disobey the owner’s instructions not to use the phone while driving.

I do not have a copy of this decision.  If anyone does have a copy, I would appreciate receiving a copy so I can share it here on this blog.

To review other Tort Talk posts pertaining to cell phone use civil litigation issues, click here.

Source: “Court Summaries” by Timothy E. Clawges, Pennsylvania Bar News, Volume 22, Number 3 (Feb. 6, 2012).

Monday, February 6, 2012

ARTICLE: A CLEAN SLATE

The below article of mine was published in last week's Pennsylvania Law Weekly.  It was also picked up for publication in the New Jersey Law Journal and the Texas Lawyer periodicals.  I hope you enjoy it.

A Clean Slate:
Ways to Ease Stress and Improve Your Practice

by

Daniel E. Cummins


The Legal Intelligencer/Pennsylvania Law Weekly


January 31, 2012











Another new year has come and 11 more months stretch out in front of us until the next one. It's still a clean slate and there is plenty that can be accomplished in the year ahead in terms of reducing stress and improving one's enjoyment and success in the practice of law. Here are five tips that may help in this regard.

Extend Professional Courtesies

You've heard it and I've heard it again and again: "It's hard enough being in the practice of law without (fill in the blank)."

It may help to look at 2012 and beyond as a time to start promoting professional courtesies among attorneys by exhibiting them yourself, perhaps even more than you may have in the past. As they say, what goes around comes around.

For example, requests for continuances should be granted without hesitation wherever possible by fellow attorneys, as well as the bench, particularly where there is no prejudice to the parties involved. Also, discovery that an opposing party is clearly entitled to under the rules should be produced in a timely fashion and without the necessity of unnecessary motions practice.

As difficult as it may seem at times, an attorney should also try to avoid taking on the emotional trappings that one's client may bring to a case. If litigators can remain above the fray and attempt to "counsel" their respective clients toward an amicable resolution, the entire legal system, not to mention the client, will benefit.

Also, spreading accolades always promotes professionalism among attorneys. As Dale Carnegie once wrote, "Be hearty in your approbation and lavish in your praise" toward others.

If an opposing counsel makes a good presentation in court or submits an excellent brief, let them know that while you disagree with the position stated, you were impressed nevertheless by the presentation. If you hear of a colleague or client who has won a case or earned an award of some sort, drop him or her a note, e-mail or text of congratulations. Lawyers are told day in and day out that their position is erroneous and, as a result, can never hear enough praise for a job well done.

And while you're practicing increased professional courtesies in 2012, don't forget that "please" and "thank you" go a long way.

Look Ahead

Resolve in 2012 to constantly look ahead 30 to 45 days on your calendar to see what's coming down the pike. Lawyers hate surprises; clients hate them more.

By constantly looking ahead you may be lucky enough to never again experience that awful feeling in the pit of your stomach that comes when you forget to tell a client about tomorrow's settlement conference with the court.

Looking ahead on your calendar also allows you to get a jumpstart on that motion or brief that may be due 30 days or so down the line. Having more time to write means having more time to research and edit, which guarantees a better final product that covers all of the applicable law and argument.

Read Updates

Another way to make your practice better in 2012 and beyond is to read any case updates you can get your hands on. By reading the Pennsylvania Law Weekly and its weekly "Case Digests" section, you are already ahead of those who don't read the paper.

A review of the blue-covered advance sheets sent out by the Atlantic Reporter is also another good way to stay up on the latest cases. The first few pages of every blue copy of the advance sheets contain a listing of the Pennsylvania state cases found in that edition along with a concise summary of the holding. A few more pages back you will periodically see a listing of recent Pennsylvania federal court decisions with concise summaries as well.

Even better than simply skimming these sources is engaging in the practice of actively committing these cases to somewhere in your memory by typing the case name, citation and concise summary into a running list on your computer. For easy reference later, this list can broken down in alphabetical order by topics pertinent to your practice ("Appeal," "Bad Faith," "Complaints," etc.).

It can be guaranteed that if you actively add to a list of important court decisions that are pertinent to your practice, you will be rewarded again and again by having these cases at your fingertips when you need them rather than having to try to rack your brain as to where you know you saw a particular case before.

Return Phone Calls

It may also pay off to plan, in 2012, to make an effort to return all phone calls within 24 hours. Quickly returning phone calls will certainly make your clients happy and keep them more informed on the status of their cases.

Your reputation among your peers as an attorney who is prepared and "good to deal with" will also be bolstered by promptly calling back other attorneys. Rather than having an opposing counsel still offended by one or more unreturned phone calls, the goodwill generated by your promptly returned phone calls over the course of a case may be able to be cashed in come settlement discussions time with more cordial negotiations.

In the scenario of being faced with a voicemail from an attorney or client you'd really rather not talk to, there are always the many options of responding by mail, fax, e-mail, text or (if you're lucky) voicemail. Efforts to keep the communications flowing will serve to keep the case moving along closer and closer to the resolution of the case, however that may occur.

Schedule Time Off

Believe it or not, it's okay to look out for numero uno on occasion. As we start to delve into 2012, look ahead several months on your new calendar and schedule some time off for yourself later while the coast is clear.

Scheduling vacations, or at least a few long weekends here or there, helps to rejuvenate one's self. Although a lawyer can never completely get away from the practice of law, pushing it to the back burner for a day, or several days, and focusing on the other, more important and/or enjoyable aspects of your life can result in your being refreshed upon your return to work.

Now, more than ever, it is not only beneficial but easier to get away for a while. With the advent of smartphones and e-mail, your virtual law office is always a phone call or a few keystrokes away.

So do yourself and yours a big favor — put down this article, look ahead on your calendar and schedule that time off. And, please, don't forget to send me a postcard.

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

Sunday, February 5, 2012

Cumberland County Trial Court Comes Down in Favor of Severance Again in Post-Koken Cases

President Judge Kevin Hess of the Cumberland County Court of Common Pleas issued an Order on February 2, 2012 directing the severance of the liability claims (negligence) and the UIM claims (breach of contract) found in a single Complaint into separate trials in the case of Stumpf v. Erie Ins. Exchange and Barricklow, No. 2011 - Civil - 7290 (C.P. Cumb. Co. Feb. 2, 2012 Hess, P.J.).

Judge Hess also ordered that the liability(negligence) case would be tried first. The matters were allowed to remain joined together for all other pretrial proceedings including discovery. There was no bad faith claim in this case.

Tort Talkers may recall that, back on September 1, 2011, Judge M. L. Ebert of Cumberland County granted severance and ordered separate trials in the case of Henry v. Amin and Westfield Insurance Co. In the Henry case, the severance issue was decided on preliminary objections. In this more recent Stumpf case, Judge Hess granted a pre-trial motion for severance pursuant to Pa.R.C.P. 213(b).

I send thanks to the prevailing defense counsel for Erie Insurance, John A. Statler of the Lemoyne, PA law firm of Johnson, Duffy, Stewart & Weidner for advising me of this decision.  The prevailing defense counsel for the tortfeasor defendant was Attorney Hugh P. O'Neill, III of the Harrisburg, PA office of the Thomas, Thomas & Hafer law firm.

Anyone desiring a copy of the court's one line Order in Stumpf may contact me at dancummins@comcast.net.

Don't forget to scroll down the right hand column of Tort Talk (http://www.torttalk.com/) to view the Post-Koken Scorecard to research how different counties are approaching these novel issues.  There is still no appellate decision to date on the severance vs. consolidation issue.

Friday, February 3, 2012

Motion to Add Punitive Damages on the Eve of Trial Denied in Lackawanna County

In the case of Millan v. Pennsylvania American Water Company, et.al., No. 2003-Civil-4332 (C.P. Lacka. Co. Jan. 26, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion to Amend her Complaint on the eve of trial, and after the statute of limitations, to include a claim for punitive damages.

According to the Opinion, this matter arises out an alleged trip and fall event that occurred in front of the Plaintiffs’ residence. The Plaintiff-wife contended that she tripped and fell on elevated water shut-off valve owned and maintained by the Defendant, Pennsylvania American Water Company. The Plaintiff also sued a Co-Defendant that allegedly performed construction work for PAWC in the neighborhood during which they allegedly installed blacktop in a manner which permitted PAWC’s valve to protrude above the sidewalk level.

The Court’s Opinion notes that the case proceeded through discovery and was certified for trial. Twenty days after the final Pre-Trial Conference and three weeks prior to the start of trial, the Plaintiff filed a Motion seeking to amend the Complaint under Pa. R.C.P. 1033 to include a claim for punitive damages.

The Plaintiff based this motion upon information that two PAWC representatives had allegedly testified in depositions in other matters involving allegedly similar incidents. The Plaintiff submitted the other deposition testimony which established that PAWC was aware of the tripping dangers and hazards to the public and also allegedly established that PAWC had acted recklessly and/or with reckless indifference to the rights of safety of persons, including the Plaintiffs with respect to this matter. Accordingly, the Plaintiff asserted that she should be permitted to amend their Complaint to include a claim for punitive damages against PAWC.

After reviewing the submissions of the parties, Judge Nealon detailed the procedural law governing the timing of this request as well as the substantive law concerning the merits of the claim for punitive damages.

Reviewing the evidence presented, the Court found that the Plaintiffs had not identified any deposition testimony or other evidence which (1) suggested that the Defendants had a subjective appreciation of any risk of harm to which the particular Plaintiff in this matter was allegedly exposed to in front of her residence and/or (2) established that the Defendants had acted or failed to act in conscious disregard of that risk. Accordingly, the court found that the Plaintiff had not identified any substantive factual or legal basis to support a granting of the Plaintiff' motion leave of court to amend the Complaint to add a claim for punitive damages.

Additionally, Judge Nealon also found the Plaintiff’s motion to be untimely. The court pointed out that the Plaintiff’s original Complaint did not allege recklessness or any facts remotely indicative of wanton, willful or reckless conduct.
Judge Nealon noted that, if a timely filed Complaint did contain such allegations but did not affirmatively and specifically demanding punitive damages, a Plaintiff may thereafter amend the Complaint to include a claim for punitive damages based upon those facts previously alleged in the original Complaint.

However, relying, in part, upon the case of Romah v. Hygienic Sanitation Co., 705 A.2d 841, 858-860 & n. 9 (Pa. Super. 1997), the court found that, where the original Complaint simply alleges negligence and a Plaintiff later seeks to amend the Complaint to assert reckless indifference and include a claim for punitive damages after the statute of limitations has expired, such requested amendment is time barred by the applicable statute of limitations.

Judge Nealon noted that, since the original Complaint in this matter only alleged ordinary negligence on the part of the Defendants, and given that the Plaintiff’s request to amend the Complaint was filed more than ten (10) years after her fall, the motion to add punitive damages was “clearly time barred.” 


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

Thursday, February 2, 2012

THREE (3) MONTHS FROM TODAY - THE TORT TALK EXPO 2012 - REGISTER NOW TO SAVE YOUR SPOT

The lineup has been finalized for the TORT TALK EXPO 2012 CLE Seminar, which is set to take place on May 3, 2012 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.

Also, I have received approval from the Pennsylvania CLE Board, approving 2 substantive and 1 ethics credit for the event.

In addition to my presentation of an Auto Law Update, the other presenters will include Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price on a Civil Litigation Update, as well as noted expert radiologist (and attorney) Dr. Michael Brooks presenting on diagnostic studies in personal injury matters, with an emphasis on auto accident matters.

The stellar Judicial panel for the "View from the Bench" portion of the program will consist of Pennsylvania Supreme Court Justice Michael Eakin, President Judge of the Superior Court Correale Stevens, and U.S. Third Circuit Court of Appeals Judge Thomas Vanaskie.

President Judge Thomas F. Burke, Jr. will also provide a "State of the Luzerne County Bench" presentation, reporting on which new judge will be handling which types of cases along with an update on the current status of the Luzerne County civil trial backlog.

The View from the Bench portion will be presided over by former Luzerne County Judge Joseph Van Jura, who recently completed his appointment and has returned to private practice where he is also offering his services for Mediations and Arbitrations.

In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators. To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):

Courtside Documents: www.courtsidedoc.com


Digital Justice: www.digitaljustice.net




Minnesota Lawyers' Mutual: www.mlmins.com


Ringler Associates: www.ringlerassociates.com


The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.

The seminar will be immediately followed by a cocktail reception at which attendees can continue to network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.

Also, a portion of the proceeds from this event will be donated to a local charity to be determined.

The CLE Program will include the following topics and presenters:


TORT TALK EXPO 2012


Presented by

Daniel E. Cummins, Esquire

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday, May 3, 2012

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

2 Substantive & 1 Ethics CLE Credits

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

12:30 – 1:00 pm Registration


1:00 – 1:30 pm: The Tort Talk Auto Law Update

Presenter: Daniel E. Cummins, Esq.

1:00 – 1:30 pm: The Tort Talk Civil Litigation Update

Presenter: Paul T. Oven, Esq.

2:00 – 2:15 pm BREAK

2:15 - 3:15 pm: Introductory Medical Conditions & Radiological Issues in Auto Accident Injuries

Presenter: Dr. Michael L. Brooks, M.D., J.D., FCLM

3:15 – 3:30 pm BREAK


3:30 – 4:30 pm A View from the Bench: Ethical Issues in Legal Writing and Advocacy Before the Court in an Electronic World

Moderator:
Hon. Joseph Van Jura (Ret.)


Presenters:

Pennsylvania Supreme Court Justice Michael Eakin

President Judge of Superior Court Correale Stevens

U.S. Third Circuit Court of Appeals
Judge Thomas I. Vanaskie

Luzerne County President Judge Thomas Burke, Jr.

COCKTAIL RECEPTION TO FOLLOW

AT BREAKERS

4:30p.m. - 6:30p.m.







Costs below cover both CLE Seminar and Cocktail Reception:






Claims professionals/representatives
and risk managers
$25.00


Lawyers
$165.00


Please make checks payable to "Tort Talk."

For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.


Name(s)____________________________________


Firm/Company_______________________________



PLEASE MAIL REGISTRATION FORM AND PAYMENT TO:

TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.



HOPE TO SEE YOU THERE!