Friday, April 27, 2012

Still Time To Register for Next Week's Tort Talk Expo 2012

TORT TALK EXPO 2012 CLE SEMINAR





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 – 6:00 p.m.) at Breakers in the Mohegan Sun



DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES




12:30 – 1:00 pm Registration



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

Presenter: Daniel E. Cummins, Esq.






1:30 – 2:00pm: 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.





Contact Daniel E. Cummins, Esq. at dancummins@comcast.net to register.



COST: CLAIMS PROFESSIONALS - $25.00



ATTORNEYS - $165.00
Send check made out to "TORT TALK" to:
Daniel E. Cummins, Esq.
FOLEY, COGNETTI, COMERFORD, CIMINI & CUMMINS
507 Linden Street
Suite 700
Scranton, PA 18510
570-346-0745

Wednesday, April 25, 2012

Pennsylvania Supreme Court To Address Whether Emotional Distress Meets Definition of Bodily Injury

The Legal Intelligencer has reported that the Pennsylvania Supreme Court granted allocatur in the case of Lipsky v. State Farm on the issue of whether emotional distress without physical injury can be covered under an automobile insurance policy’s definition of "bodily injury."

The State Farm Mutual Automobile Insurance at issue provides coverage for bodily injury which is defined as “bodily injury to a person and sickness, disease or death which results from it.”

By way of background, in Lipsky, a parent and siblings witnessed their family member get fatally hit by a car were seeking damages under the bodily injury portion of the policy that covered the car.
In a September 2011 opinion, the Pennsylvania Superior Court ruled the family could collect damages under the policy.  That court found that witnessing a family member be killed by a car is a distinct bodily injury covered under the definition of “bodily injury” found in the insurance policy.  The previous Tort Talk post on that decision can be reviewed here.

According to the article, the Supreme Court of Pennsylvania granted State Farm’s appeal, limited to two issues. Under the first issue, the court will address whether the family’s damages do in fact meet the policy’s bodily injury definition. If so, the court will then review the issue of whether the family members’ claims are subject to the “each accident” liability limits rather than the “each person” limits despite the fact that their emotional distress resulted from the bodily injury suffered by their son and brother where the policy includes in the “each person” limits “all injury and damages to others resulting from this bodily injury.”

Here is a link to the copy of the Supreme Court Order granting allocatur and delineating the issues to be addressed (Note that the Order appears to be incomplete when you go to the link but apparently that is a typo).

Source:  "Pa. Supreme Court Takes Up NIED Insurance Case" by Gina Passarella of The Legal Intelligencer (April 25, 2012).

Tuesday, April 24, 2012

Stating the Obvious: A Snowy and Icy Surface Can Be Slippery



In his recent Opinion and Order in the Erie County premises liability case of Skalos v. Bonnell's Collision, No. 12979 - 2008 (C.P. Erie Co. April 13, 2012 Garhart, J.), Judge John Garhart granted the defendant summary judgment in a winter-time slip and fall action.

The court ruled that the defendant was entitled to summary judgment as the record showed that the plaintiff's fall occurred due to smooth and natural icy conditions in the defendant's parking lot.  The plaintiff admitted that the area was smooth and that she could not state how long the conditions existed prior to her fall.

The court determined that under the applicable hills and ridges doctrine, the law did not expect a property owner in the winter climate like Erie, Pennsylvania to keep its lot completely free of ice or slippery conditions. 

The defense also argued that it was entitled to summary judgment because the slippery conditions were open and obvious.  The court found that, since it had already ruled in favor of the defense on the hills and ridges doctrine, it need not decide this issue.


However, in dicta, the court went on to state, in no uncertain terms, that it should have been open and obvious to a seasoned resident of a very snowy city like Erie, Pennsylvania that a snowy area on a sloping walking surface might also be icy and, therefore, slippery.

I send thanks to the prevailing defense attorney, William C. Wagner, Esquire of the Erie, PA law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC for forwarding this case to my attention.

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

Source of Image: www.public.iastate.edu

Long Arm Statute and Vicarious Liability of Employer Addressed in Recent Pennsylvania Superior Court Auto Law Decision

In its recent decision in the case of Schiavone v. R.J. Aveta, 2012 Pa. Super. 68, 1352 EDA 2011 (Pa.Super. March 20, 2011)(Panella, Lazarus, Strassburger, JJ.)(Opinion by Lazarus, J.), the Pennsylvania Superior Court addressed the sub-issue of “whether, as a matter of law, an employee driving directly home from work in a company owned vehicle is acting within the scope of his employment" for purposes of determining a personal jurisdiction issue presented in an auto accident case.

In this matter, the Defendant driver was driving a company car on his way home from work when he was involved in a motor vehicle accident with the Plaintiff. The Plaintiff sued the Defendant driver and his employer.

This decision covers an apparently novel appellate personal jurisdiction issue given that the defendant driver was driving home from his place of work in New Jersey to his home in Pennsylvania at the time of the accident. The accident happened in Pennsylvania.

To resolve the jurisdictional issue, the court compared and contrasted Pennsylvania’s Long Arm jurisdictional statute and the Worker’s Compensation Act.  The court acknowledged that this matter would come under an exception to the “coming and going” rule found in the Worker's Compensation context, which states that a worker not in scope of employment in worker's compensation matters when coming and going to and from work.

Yet, the Court held that, in the context of a third party litigation, an employee commuting home from work in a company-owned vehicle for which all travel expenses are paid for by the employer is indeed acting within the scope of his employment such that employer is responsible for any alleged negligent conduct resulting from the employee's driving. This holding led the court to find that jurisdiction was therefore appropriate over the Defendants under the circumstances presented in the case.

Anyone wishing to review this decision for more details may click this link:

http://www.courts.state.pa.us/OpPosting/Superior/out/A01030_12.pdf

Sunday, April 22, 2012

A Heads Up From Tort Talk




Here's a heads up from the Tort Talk blog--this Wednesday, April 25th is Administrative Professionals Day.  Don't forget to thank the ones who make you look good with their hard work!

Source of Image: fotographic1980 / FreeDigitalPhotos.net





Thursday, April 19, 2012

CORRECTION: Kondash Cell Phone Decision from 2010, Not 2012

Yesterday's posting of the Kondash cell phone/punitive damages decision noted an improper 2012 date.  The decision actually came down in 2010.  I apologize for any confusion.  I have corrected the post and here's a link to it if you need more info on the case or a copy.  Thanks.

Older Lackawanna County Cell Phone/Punitive Damages Case Surfaces



All the recent talk about the ability of a Plaintiff to pursue a punitive damages claim in an auto accident case based upon a defendant driver's cell phone use has caused an older 2010 decision in this regard to surface.

In his November 19, 2010 decision in the case of Kondash v. Latimer, No. 2009 - Civil - 8622 (C.P. Lacka. Co. Nov. 10, 2010 Thomson, S.J.), visiting Senior Judge Harold A. Thomson, Jr. (former President Judge in Pike County) denied a tortfeasor defendant's Preliminary Objections to a Plaintiff's Complaint containing claims of "recklessness" and wanton conduct on the part of the defendant driver related to his handheld device.

Judge Thomson noted in his Opinion that, at that time, there was no statutory or decisional law on the issue one way or the other other than several municipalities across the Commonwealth having passed local laws banning the use of cell phones while driving.

The Court overruled the defendant's preliminary objections asserting that such allegations were impertinent, scandalous or insufficient in a factual or legal manner.  In so ruling, Judge Thomson found that it was not free and clear from doubt whether such allegations were entirely irrelevant as asserted by the defense.

For other, more recent decisions on this cell phone/punitive damages issue, click here.

I send thanks to Attorney Jim Tressler of Tressler Law, LLC for forwarding the Kondash decision to my attention.  Anyone desiring a copy of the Opinion and Order may contact me at dancummins@comcast.net.

STILL SPACE LEFT TO REGISTER FOR MAY 3rd TORT TALK EXPO 2012

TORT TALK EXPO 2012 CLE SEMINAR



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 – 6:00 p.m.) at Breakers in the Mohegan Sun

DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES


 
12:30 – 1:00 pm Registration
 

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



1:30 – 2:00pm: 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.



Contact Daniel E. Cummins, Esq. at dancummins@comcast.net to register.


COST: CLAIMS PROFESSIONALS - $25.00

ATTORNEYS - $165.00

Tuesday, April 17, 2012

Defamation Decision Out of Lackawanna County

In the case of Lilac Meadows, Inc. v. Rivello, No. 2011-Civ-4375 (C.P. Lacka. Co. April 5, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, offered up a detailed opinion addressing Preliminary Objections filed in a defamation action.

According to the opinion, the Plaintiff, a land development corporation, sued two local residents for slander based upon statements the residents allegedly made regarding the Plaintiff’s land development project during a public council meeting.

One of the residents filed Preliminary Objections in the nature of a demurrer to the slander claim on the grounds that his remarks were not capable of a defamatory meaning. The Court found that this resident’s alleged comments about the corporation’s property and its predecessor-in-interest’s approval process did not constitute slander under an application of Pennsylvania law. As such, the Court granted that resident’s demurrer and dismissed the slander action filed against him.

The other Defendant resident’s Preliminary Objections were denied. That resident’s demurrer’s were based upon the defenses of truth and privilege. Other Preliminary Objections regarding insufficient specificity were also overruled by the Court with regard to that Defendant’s Preliminary Objections.

According to the opinion, the Defendants made statements at a public meeting with regards to how the Plaintiff was moving ahead with a certain project.
In his opinion, Judge Nealon provides a thorough update on the law of defamation and the defenses of privilege and truth in that context. Judge Nealon also addressed the proper types of damages claims that are permitted in a defamation action.
Anyone desiring a copy of Judge Nealon’s opinion in the case of Lilac Meadows, Inc. v. Rivello, may contact me at dancummins@comcast.net.

Post-Koken Severance Decision Out of Venango County

Judge Robert Boyer of the Venango County Court of Common Pleas has issued one of the most recent Post-Koken decisions in favor of severance, and possibly the first one out of Venango County, in the case of Boughner v. Erie Ins. Exchange, No. 1875 - Civil - 2010 (C.P. Venango Co. April 16, 2012 Boyer, J.).

In Boughner, the insured had filed a UIM action with a Count I for contractual benefits and a Count II for Bad Faith damages.

Erie filed a Motion to Sever the Bad Faith claim from the UIM contract claim along with a request for a Stay of discovery on the bad faith count.

Judge Robert Boyer granted the Motion to Sever the Bad Faith Count from the UIM contractual claim and also the Motion to Stay any discovery under the bad faith claim.


I send thanks to the prevailing Attorney, William Wagner, Esquire of the Erie, PA law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC, for bringing this decision to my attention.

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

Monday, April 16, 2012

Negligent Entrustment Claim Allowed to Proceed in Luzerne County

In the case of Zschunke v. Sitler, No. 13845 Civil 2010 (C.P. Luz. April 5, 2012 Vough, J.), Judge Michael T. Vough of the Luzerne County Court of Common Pleas denied a defendant's motion for summary judgment on a negligent entrustment claim in an auto accident case.  The decision was by way of a one line Order.

I have been informed that this case involved a Defendant driver taking his father's vehicle. The father claimed that his son, the Defendant driver, took the vehicle without his permission. The son allegedly had a very lengthy criminal history and drug problem, allegedly including a motor vehicle crash that happened 6 months before the subject accident, where the son allegedly took his grandfather's vehicle and allegedly hit another person head-on.

In the Complaint filed in this matter, the Plaintiff alleged negligence and negligent entrustment. Defendant filed Summary Judgment on the negligent entrustment issue.

The Plaintiff countered the motion by pointing to the Defendant driver's prior driving history and by pointing to issues of fact in the form of the Defendant driver asserting that he did have permission to drive the vehicle at the time of the accident.

As noted, Judge Vough denied the Summary Judgment motion.  Anyone desiring a copy of this Order in Zschuncke v. Sitler may contact me at dancummins@comcast.net.

Sunday, April 15, 2012

SAVE THE DATE: MAY 17th PDI CLE SEMINAR in HARRISBURG

THE PENNSYLVANIA DEFENSE INSTITUTE

Proudly Presents

“Legal Issues in Modern Communications”

Our annual regional program on issues important to the insurance industry and defense counsel in central Pennsylvania will again be held this year at the beautiful Hollywood Casino at Penn National Race Course in Grantville, PA. Our program this year is devoted entirely to the hottest issue in the law right now: social media and the law. We have a distinguished panel of local counsel to debate discovery of social media and its use in litigation. We also have a presentation on developing a defensible e-discovery plan for insurers and businesses. Finally there will be a presentation on the latest in expert discovery and privilege. The afternoon program will be followed by a reception. The local judiciary has been invited to attend the CLE program and the reception.



3 Substantive CLE Credits



Thursday, May 17, 2012

1:30 P.M. – 5:00 P.M. Registration begins at 1:00 P.M.

Hollywood Casino at Penn National Race Course

777 Hollywood Boulevard

Grantville, PA



The program will be immediately followed by a reception for the Judiciary serving Central Pennsylvania



Costs for the program and reception:

·        Claim Representatives - $25.00

·        Lawyers - $150.00



For reservations, please complete the form below and return to PDI or e-mail us at coled01@padefense.org



Name(s)_____________________________

                                                                                                                  

Firm/Company_______________________                                                                                                                      

Make checks payable to:

PENNSYLVANIA DEFENSE INSTITUTE

P.O. Box 697, Camp Hill, PA 17001-0697

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

Thursday, April 12, 2012

Register For May 3 Tort Talk Expo to Score 3 CLE Credits


Here's another reminder that the Tort Talk Expo 2012 CLE Seminar set to take place on May 3, 2012 at the Mohegan Sun Casino.  Here's a link to the agenda for the Seminar.

So far there are approximately 60 registrants already planning to attend. The registrants to date consist of claims professionals, plaintiff's attorneys, and defense attorneys. A number of Northeastern Pennsylvania state and federal judges are also expected to attend the Cocktail Reception following the event.

This event promises to be a great networking opportunity and a leisurely chance to secure required CLE credits. The written materials will summarize a year's worth of Tort Talk blog posts and contain other useful information for your practice. Even better, there will also be door prizes and chances to win raffle prizes.

Hope to see you there so I can say THANKS for supporting my efforts with Tort Talk.


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

Medical Malpractice Decision Out of Lackawanna County

In his recent decision in the case of Mills v. Green and Community Medical Center, No. 2011-Civil-5496 (C.P. Lacka. Co. March 23, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed in a medical malpractice action pertaining to issues of informed consent, agency allegations, and Connor objections.

In his Opinion, Judge Nealon addressed the law pertaining to informed consent claims against doctors, agency allegations against hospitals, and Connor objections seeking more specific allegations in support of the Plaintiff’s negligence claims.
Ultimately, the Court overruled the objection in the nature of a demurrer to the Plaintiff’s claim for lack of informed consent against the medical doctor without prejudice to the right of the Defendants to renew that objection by way of a Motion for Judgment on the Pleadings or a Motion for Summary Judgment.

With regards to the Preliminary Objections to the claims of agency liability against the hospital, as well as with regard to the connor objections, Judge Nealon granted the Plaintiff 120 days to conduct discovery on the issues of agency and negligence against the hospital so as to enable the Plaintiff to amend certain paragraphs of the Complaint within thirty (30) days thereafter in order to identify any actual or ostensible agents of the Defendant hospital by name or appropriate description and/or to provide more specific information regarding the hospital’s alleged negligence.

Anyone desiring a copy of this decision by Judge Nealon in Mills v. Green and Community Medical Center may contact me at dancummins@comcast.net.

Wednesday, April 11, 2012

UPCOMING PDI CLE SEMINARS IN PHILADELPHIA

PDI’s Young Lawyers Committee is pleased to announce:

A series of CLE programs for young defense lawyers in the Philadelphia area focusing on representing insurance clients.

THE PROGRAMS:


April 27, 2012: “Insurance Bad Faith and How to Avoid It” – 11:00 AM – 1:00 PM at Cozen, O’Connor, 1900 Market Street, Philadelphia


July 19-20, 2012: “Defense Counsel and Claim Representative Interaction from the Insurer’s Perspective” – at PDI’s 2012 Annual Conference at the Bedford Springs Resort in Bedford Springs



This is the chance for young defense lawyers to learn about casualty insurance companies, the basics of liability insurance policies, the claim handling process, the relationships among the insurer, insured and defense counsel, and what insurance claim representatives expect from defense counsel in handling insurance claim. Learn also about the nuances of representing insurers in non-litigation claims. Finally, learn about the state of insurance bad faith in Pennsylvania, and how counsel cam help insurers avoid bad faith litigation. Program presenters are well known Philadelphia defense counsel and insurance company representatives.



WHO SHOULD ATTEND:

These are intended as intensive programs for groups of around 25.

To reserve your spot, call PDI at 800-734-0737, fax to 900-734-0732 or e-mail us at coled01@padefense.org



THE COST:

$50 per session, which includes lunch

Make checks payable to “PDI”



Name(s):___________________________________________



Firm:______________________________________________

UPCOMING PDI CLE SEMINARS AROUND THE COMMONWEALTH

PDI’s Young Lawyers Committee is pleased to announce:

A series of CLE programs for young defense lawyers in North and Central Pennsylvania focusing on representing insurance clients:

THE PROGRAMS


April 19, 2012: “General Principles of Insurance Claim Handling, Ethical Issues Arising in the Tripartite Relationship, and Considerations in Handling Non-Litigation Claims – Part I”: 11:00 AM – 2:00 PM at the Dauphin County Bar Association in Harrisburg.


June 21, 2012: “Considerations in Handling Non-Litigation Claims – Part II and Insurance Bad Faith and How to Avoid It”: 11:00 AM – 2:00 PM at ? in Wilkes-Barre/Scranton


July 19, 2012: “Defense Counsel and Claim Representative Interaction from the Insurer’s Perspective”: 10:00 AM – 12:00 PM at PDI’s 2012 Annual Conference at Bedford Springs


This is the chance for young defense lawyers to learn about casualty insurance companies, the basics of liability insurance policies, the claim handling process, the relationships among the insurer, insured and defense counsel, and what insurance claim representatives expect from defense counsel in handling insurance claim. Learn also about the nuances of representing insurers in non-litigation claims. Finally, learn about the state of insurance bad faith in Pennsylvania, and how counsel cam help insurers avoid bad faith litigation. Program presenters are well known defense counsel and insurance company representatives.


WHO SHOULD ATTEND:

These are intended as intensive programs for groups of around 25.

To reserve your spot, call PDI at 800-734-0737, fax to 900-734-0732 or e-mail us at coled01@padefense.org


THE COST:

$75 per session, which includes lunch

$150 for all three sessions

Make checks payable to “PDI”


Name(s): _____________________________________________



Firm: _________________________________________________



All three programs _____



Program 1____ Program 2 ____ Program 3 ____

Tuesday, April 10, 2012

Another Philadelphia Post-Koken Decision in Favor of Severance and on Proper Venue

Another post-Koken decision in favor of severance has been handed down by the Philadelphia County Court of Common Pleas in the case of Lewis v. Fischer and Donegal Mutual Ins. Co., Nos. 11-081103, 11-080580 (C.P. Phila. Co. Oct. 12, 2011 Manfredi, J.).

In this case, Judge William J. Manfredi granted the Defendants’ Preliminary Objections and ordered that the breach of contract claims against the UIM carrier and the negligence claims against the third party tortfeasor be severed.

Judge Manfredi also noted that venue as to any non-insurance Defendant would be transferred to Delaware County given that there was no basis for venue against those Defendants in Philadelphia under Pa. R.C.P. 1006(c)(1).

Judge Manfredi also shipped off the claims against the insurance company Defendant to Chester County based upon the insurance contract form selection clause.

As such, the ultimate result of this order was that the post-Koken case filed in the Philadelphia County Court of Common Pleas was severed and sent elsewhere.

This decision is by order only with a short footnote containing a rationale. Anyone desiring a copy of this Order in the case of Lewis v. Fischer and Donegal may contact me at dancummins@comcast.net.

I send thanks to Attorney Ryan F. Curran of the Curran Firm in Media, Pennsylvania for forwarding this decision to my attention.

Motion for Judgment Non Pros Denied in Lackawanna County

In his recent March 28, 2012 Opinion in the case of Gallati v. Sebastian International, Inc., No. 2008-Civil-2268 (C.P. Lacka. Co. March 28, 2012 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence R. Nealon addressed a Motion for Judgment of Non Pros filed by a Defendant based upon the alleged failure of the Plaintiffs to prosecute their case diligently.

This matter arises out of a cause of action of breach of implied warranties of merchantability and fitness for a particular purpose along with two derivative claims for loss of consortium. The underlying facts involve the female Plaintiff having purchased a canister of hairspray that was manufactured by Sebastian International, Inc. and sold to CVS where the Plaintiff purchased the hairspray.

The Plaintiff alleges that the hairspray canister did not notify customers that 10 and 1 ½ hours after applying Sebastian Shaper Plus Hairspray the product could cause hair to become inflamed in such a manner so as to cause injuries. More specifically, the Plaintiff stated that she originally used the hairspray at about 4:30 p.m. on January 26, 2006. Later, at approximately 3:00 a.m. on or about January 27, 2006, the Plaintiff lit a cigarette and her hair immediately caught fire resulting in burn injuries.

With regards to the subject Motion to Dismiss for failure to prosecute, the court noted that, after the filing of that motion by the Defendants, the Plaintiffs’ original attorney withdrew his appearance and was replaced by new counsel.

The Defendants argued in their motion that there had been no docket activity in the matter since June of 2009. The Defendant additionally argued that there had been no depositions scheduled or conducted. It was additionally asserted that the sale of the product at issue took place over six (6) years ago. The Defendants alleged severe prejudice in the form of an inability to locate witnesses.

In response, the new Plaintiff’s attorney asserted that the Plaintiffs had previously cooperated with their original counsel in moving the case ahead. The new counsel also indicated that they recently received the file from the former Plaintiff’s attorney and was in the process of preparing to proceed with discovery. Plaintiffs also asserted that the Defendants had not established any “actual prejudice” as a result of any alleged delay in the litigation.

After reviewing the applicable law which provides that a judgment of non pros may be properly entered only if:

(1) A party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude;

(2) There is no compelling reason for the delay; and,

(3) The delay has caused some prejudice to the adverse party.

See James Bros. Lumber Co. v. Union Banking & Trust Co. of DuBois, 247 A.2d 587 (Pa. 1968).

Judge Nealon also noted that the more recent Pennsylvania Supreme Court case of Captline v. County of Allegheny, 718 A.2d 273, 274 (Pa. 1998) required a Defendant to show “actual prejudice” in order to prevail on a Motion for Judgment of Non Pros.

After applying the law to the case at hand, Judge Nealon found that the Defendants had not identified any actual prejudice that they had suffered from the 26 month delay in the proceedings. The Court rejected the Defendants’ bald claims that they “may” experience difficulty in locating witnesses or that those witnesses’ memories “may” have faded. The court also noted that the Plaintiffs had confirmed that they have preserved the actual product as well as exemplars of the product for the Defendants’ inspection.

Accordingly, the Court denied the Defendants’ Motion for Judgment Non Pros. However, Judge Nealon went further and placed deadlines on the case to move it ahead in discovery.

Anyone desiring a copy of this Opinion of Judge Nealon in the case of Gallati v. Sebastian International, Inc. may click here.

Anyone desiring to review summaries of two other recent Motion for Judgment of Non Pros cases out of Lackawanna County with a contrary result, i.e., such motions were granted due to a Plaintiff’s lack of due diligence and prosecuting the case, may click here and here.

Assumption of Risk Defense Remains Valid in Pennsylvania

Judge Albert H. Masland of the Cumberland County Court of Common Pleas recently issued an Opinion in the case of Snoke v. Anderson, No. 03-03715 Civil Term (C.P. Cumb. Co. Feb. 10, 2012 Masland, J.), in which he addressed, in part, the continuing validity of the assumption of risk doctrine under Pennsylvania law.

The underlying facts as provided from defense counsel were, as follows.  The Plaintiff and his family rented a cabin in the Cumberland County mountains from the Defendants.

The Plaintiff was riding his dirt bike down a grassy area when he claims he struck an unidentified object that caused his vehicle to stop "like he hit a brick wall."  The Plaintiff put his left foot on the ground in an attempt to regain control, but the dirt bike fell on top of him, allegedly causing personal injuries.

Approximately two months after the accident, the Plaintiff and a friend returned to the scene of his accident and located a pipe, approximately three inches in diameter, that protruded from the grassy area about 1/4 inch to 1 1/4 inches at its maximum. The Plaintiff concluded that this pipe must have been the cause of the accident.

At trial, plaintiff testified that he had been riding dirt bikes on this property for over 30 years, and that he knew riding dirt bikes could be dangerous because you don't always know what types of things you might encounter while riding.

The Defendants' motorcycle accident reconstruction expert testified that not only could the accident not have happened in the manner described by the Plaintiff, but even if the dirt bike had encountered the pipe, it would have simply rolled right over it.

Information provided also reveals that the trial court listed the assumption of risk question as the first question on the verdict slip for the jury to consider.

The jury found that Plaintiff assumed the risk of his injury, and returned a defense verdict after approximately less than 30 minutes of deliberation.

The Plaintiff filed a motion for post-trial relief, arguing that because the court denied Defendants' motion for compulsory non-suit, it was thereafter barred from instructing the jury on assumption of the risk. The defense argued that the Plaintiff waived this issue by not specifically objecting to it during trial, and that the evidence presented during trial supported the assumption of the risk instruction.

The trial court agreed with the defense on both points and denied plaintiff's post-trial motion. Plaintiff did not appeal to the Superior Court.

Judge Masland's opinion is notable in that he held that there are cases allowing the assumption of the risk argument to go to the jury even after a non suit has been denied.

I send thanks to Christopher Reeser and Lauren Burnette of the Harrisburg, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Anyone desiring a copy of this opinion in the case of Snoke v. Anderson may contact me at dancummins@comcast.net.

Link to Healey v. Wells Fargo Case Corrected

I have corrected the link to Judge Nealon's gist of the action doctrine decision in the case of Healey v. Wells Fargo.  Sorry for the mix-up caused by my continuing learning how to use Google Docs correctly.

Here is the link again: 

https://docs.google.com/file/d/0B83Pxa3TYcXMN0ZONG5kQThTRkM3Y3UxaG9CQmtndw/edit

Increased Fees for Public Access To Federal Court Documents

The Wall Street Journal blog has reported that PACER fees per page went up from $.08 to $.10 as of April 1, 2012.  Here's a link to that blog post: http://blogs.wsj.com/law/2012/03/23/pacer-fee-hike-our-2-cents/

A tip of the hat to Attorney Bill Byrne of the Hoegen & Associates Law Firm in Wilkes-Barre, PA for bringing this info to my attention.

Sunday, April 8, 2012

HAVE YOU REGISTERED FOR THE TORT TALK EXPO 2012 YET?

Have you registered for the Tort Talk Expo 2012 CLE Seminar set to take place on May 3, 2012 at the Mohegan Sun Casino?  Please consider doing so now before the event sells out.

So far there are approximately 50 registrants already planning to attend.  The registrants to date consist of claims professionals, plaintiff's attorneys, and defense attorneys.  A number of Northeastern Pennsylvania state and federal judges are also expected to attend the Cocktail Reception following the event.

This event promises to be a great networking opportunity and a leisurely chance to secure required CLE credits.  The written materials will summarize a year's worth of Tort Talk blog posts and contain other useful information for your practice.  Even better, there will also be door prizes and chances to win raffle prizes. 
Hope to see you there so I can say THANKS! for supporting my efforts with Tort Talk.

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 Complimentary 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.
 
1:30 – 2:00 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 J. Michael Eakin

President Judge of Superior Court Correale F. 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.

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):

BMS Consultants, Inc.: http://www.bmsconsultants.com/
 
CED Investigative Technologies:
http://www.ced-aai.com/


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



 


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

 
Northeastern Rehabilitation Associates: http://www.nerehab.com/
 
 
Precise, Inc.: http://www.precise-law.com/

 


Ringler Associates: www.ringlerassociates.com/


Surveillance Professionals Investigations, LLC:



 
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!
 
THANKS FOR YOUR SUPPORT

OF









Judge Terrence R. Nealon of Lackawanna County Addresses Gist of the Action Doctrine

In his recent March 20, 2012 decision in the case of Healey v. Wells Fargo, No. 2011-Civil-3340 (C.P. Lacka. Co. March 20, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Preliminary Objections raised in a case involving a lender and breach of contract and tort claims.

Of note in this decision is Judge Nealon’s analysis of the gist of the action doctrine and its impact on the Plaintiff’s claim for negligent infliction of emotional distress and other tort claims pled in this matter.
While the facts involved in this case are convoluted, the opinion is a worthwhile read if you are faced with a gist of the action doctrine issue. This doctrine basically maintains the distinction between breach of contract claims and tort claims and precludes Plaintiffs from recasting ordinary breach of contract claims as tort claims.  Stated otherwise, under Pennsylvania law, a cause of action framed as a tort but reliant upon contractual obligations will be analyzed to determine whether the cause of action properly lies in tort or contract.

Judge Nealon reviewed in this decision the law of the gist of the action doctrine which serves to bar tort claims that arise solely from a contractual relationship between the parties, when the alleged duties breached are grounded in the contract itself, where any liability stems from the contract, when the tort claim essentially duplicates the breach of contract claims, and/or where the success of the tort claim is dependent on the success of the breach of contract claim.

Ultimately, the court in this case of Healey v. Wells Fargo found that the gist of the action doctrine served to bar certain tort claims presented by the Plaintiff.

Anyone desiring a copy of Judge Nealon’s 49 page opinion may click here.

UPCOMING PDI CLE SEMINARS

UPCOMING PENNSYLVANIA DEFENSE INSTITUTE (PDI) 2012 CLE PROGRAMS


April 19: Joint North/South Regions Young Lawyers Program Session 1:
Dauphin County Bar Association in Harrisburg


April 27: East Region Young Lawyers Program Session 3: Cozen & O’Connor in Philadelphia


May 17: South Region Regional CLE Program & Reception: Hollywood Casino in Grantville

 June TBD: West Region Young Lawyers Program Session 1: Location TBD


June 21: Joint North/South Regions Young Lawyers Program Session 2: Location TBD


June 28: West Region Regional CLE Program: Sheraton Station Square Hotel in Pittsburgh


July TBD: West Region Young Lawyers Program Session 2: Location TBD


July 19-20: PDI Annual Meeting, including final Young Lawyers Session for all Regions: Bedford Springs Resort in Bedford Springs, PA


August 22: North Region Regional CLE Program & Reception: Mohegan Sun Casino in Wilkes-Barre

Wednesday, April 4, 2012

Pushback by Facebook.com to Discovery Efforts

Below is an article showing that Facebook is firing back at non-users logging in to inspect a Facebook page:

http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3



Also, as noted in the below article, a Senator is drafting a bill to prevent employers from accessing Facebook:

http://www.tweaktown.com/news/23171/senator_drafting_bill_to_prevent_potential_employers_from_requiring_facebook_logins/index.html


I send thanks to Attorney Christopher M. Horn of the Norristown, PA law office of Kane, Pugh, Knoell, Troy & Kramer, LLP for bringing these articles to my attention.

ARTICLE: UM/UIM Rejection Form Language Should Be Reviewed Carefully

The below article of mine appeared in the March 27, 2012 edition of the Pennsylvania Law Weekly:

UM/UIM Rejection Form Language Should Be Reviewed Carefully


ByDaniel E. Cummins


Pennsylvania Law Weekly


March 27, 2012

Under Pennsylvania's Motor Vehicle Responsibility Law, there are a number of across-the-board requirements that automobile insurance carriers must follow during an insured's application and purchase of an automobile insurance policy. Among the many requirements are mandated forms, containing specified language, that insurance companies must present to the applicant and secure signatures on during the insured's purchasing of the policy.

For example, the MVFRL mandates that a UIM carrier is required to provide UM and UIM coverage in an amount at least equal to the liability limits selected by its insured unless a valid rejection form, written in accordance with the specific form language mandated by 75 Pa.C.S. § 1731(c), was executed by the insured. Under the separate 75 Pa.C.S. § 1731(c.1), the Pennsylvania Legislature provided that "[a]ny rejection form that does not specifically comply with this section is void."

Litigation over the propriety of these forms typically arises later after the injured party insured has been in a motor vehicle accident and wishes to challenge whether he or she properly rejected or chose reduced UM or UIM coverages under his or her own policy.

A number of recent state and federal court decisions in Pennsylvania have confirmed that the courts of this commonwealth will engage in a strict constructionist approach when reviewing these challenges. From these decisions, it is readily apparent that the even the slightest deviation from the statutorily mandated language will result in the forms and, therefore, the elections of reduced UM or UIM coverages, rendered null and void as a matter of law.

Extra Language Renders Form Void

In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance Co., the Pennsylvania Superior Court had an opportunity to address the propriety of an underinsured motorist's (UIM) benefits rejection form in a declaratory judgment action filed by an injured party insured. The novel question presented in this case of first impression was whether the inclusion of additional, or extra language, by the UIM carrier at the end of its UIM insurance rejection form that was over and above the statutorily mandated language failed to specifically comply with the MVFRL and was therefore void.

The court noted that precedent required it to construe the MVFRL "liberally" to give effect to the recognized goals of that law, one of which was to "afford the injured claimant the greatest possible coverage." The court also recognized that, in cases involving close questions, the courts were required to "interpret the intent of the legislature and the language of the insurance policies to favor coverage for the insured."

Turning to the facts before it, the court in Jones noted that the UIM rejection form utilized by the carrier contained the exact same language required by the statute. However, as noted, the form also had an additional sentence appended to the end of the form that was not found in the mandated form. That sentence read, "By rejecting this coverage, I am also signing the waiver on P. 13 rejecting stacked limits of underinsured motorist coverage."

Prior to the Superior Court's decision in Jones, there were no appellate decisions addressing the effect of additional words on the validity of these types of automobile insurance rejection forms.

The court in Jones did draw guidance from another appellate decision on a similar issue involving the effect of missing words from the form. In its prior decision in the case of American Intern. Ins. Co. v. Vaxmonsky, the Superior Court had ruled that a UIM rejection form that was missing one word mandated by the statute was void for failing to specifically comply with the statutory mandates.

The Superior Court in Jones likewise held that, in deviating from the statutorily mandated language in the form, in this case by adding extra language, the UIM carrier failed to specifically comply with the statutory requirements regarding the UIM insurance rejection form and, as such, the form was void.

With this ruling, the court rejected the trial court's reliance upon the Pennsylvania Supreme Court's 2000 decision in Winslow-Quattlebaum v. Maryland Ins. Group, in which that court held that the UIM rejection form did not have to be on a separate page from the UIM stacking rejection form (but rejections of UM coverages had to be on different pages from rejections of UIM coverages).

Both the trial court judge and the dissenting Superior Court judge in Jones emphasized that, in reaching this ruling, the Winslow-Quattlebaum court wrote in dicta that "[t]here is nothing in the language of Section 1731 (c.1) to suggest that the required rejection statement for UM or UIM coverage must stand alone on a page without any other writing."

The majority in Jones distinguished the Winslow-Quattlebaum decision as focusing on the different issue of what different kinds of coverage rejections could be on the same page as opposed to the exact content of the wording of those rejection forms. The Jones court also noted that the form in the Winslow-Quattlebaum case, unlike the form in the case before it, did comply with the requirement that the form language be immediately followed by the mandated signature line.

In this regard, the Jones court faulted the form before it for also violating the "proximal relationship" between the mandated language and the required signature line following the form. In other words, the form in § 1731(c) did not have anything between the end of the language in the form and the signature line. Any deviation from that setup also failed to specifically comply with the statute in the eyes of the court.

The court emphasized that prior Pennsylvania decisions viewed the legislative intent behind the requirement that UM/UIM rejection forms "specifically comply" with the requirements of § 1731(c) to avoid any need by the courts of Pennsylvania to struggle, on a case-by-case basis, with the issue of whether particular UM/UIM rejection forms seem to substantially comply with the MVFRL. Accordingly, the Pennsylvania Superior Court in the Jones case strictly applied the law and found that, by adding an extra sentence to the form between the required language and the signature line, the Unitrin UIM rejection form did not, as required by § 1731 (c.1), "specifically comply" with the form found in § 1731(c).

In so ruling, the Pennsylvania Superior Court also refused to follow the prior decision of the U.S. District Court for the Middle District of Pennsylvania in the 2005 case of Unitrin Auto and Home Ins. Co. v. Heister, 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 addition to noting that federal court decisions were only of persuasive precedent, the Jones court disagreed with the analysis in Unitrin and also emphasized that Unitrin was handed down before the Vaxmonsky decision.

A Similar Result in Federal Court


Another recent case in which a UIM rejection form containing extra language — here only one extra word — was found to be invalid is the post-Vaxmonsky Middle District of Pennsylvania decision by Judge James M. Munley in the 2011 case of Grassetti v. Property and Casualty Insurance Co. of Hartford.

The carrier's form was found by the Grassetti court to deviate from the statutorily required language by only one word. Whereas the statutorily mandated form language made reference to "Uninsured Coverage," the carrier's form at issue in this matter added a word and referred to "Uninsured Motorists Coverage."

The court in Grassetti emphasized that 75 Pa.C.S. Section 1731(c)(1) provided that "[a]ny rejection form that does not specifically comply with this section is void." In so ruling, Munley also found Vaxmonsky persuasive on the issue of interpreting the specific compliance requirements of Section 1731(c)(1).

Take a Closer Look

The recent state and federal court decisions on the propriety of UM/UIM rejection forms should serve to compel both sides of the issue to break out the magnifying glasses to review the form language for strict compliance with the statutorily mandated language. The decisions issued to date confirm that, at least with respect to UM/UIM rejection forms, a deviation of the addition or omission of even a single word could serve to render the form void and thereby result in greater coverage for the injured party insured.

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 http://www.torttalk.com/.