Additional Post-Koken Decisions From Around the Commonwealth

I recently purchased the excellent written materials from the Pennsylvania Association for Justice Annual Auto Law Update, which includes an "Update on Current Pennsylvania 'Koken' Cases" written by Leonard Sloane, Esq. and Michael J. Davey, Esq. both of the Media/West Chester, PA law firm of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander.

Comparing those written materials against the Tort Talk Post-Koken Scorecard reveals the below additional cases.  These cases have been added to the Scorecard.

I have secured copies of the decisions of Shipers v. Brown (Allegh. Co.), Vecchio v. Tunison (Allegh. Co.), and Skrocki v. Erie Ins. Co. (Phila. Co.) from Attorney Bill Mabius of the PAAJ and I thank him for that.

Attorney Mabius advised that any of the Philadelphia County decision may be secured online at http://www.courts.phila.gov/ for a small fee.


Below are the additional cases I noted from the comparison of the PAAJ materials against the Post-Koken Scorecard:

 

 

CASES ALLOWING JOINDER OF THIRD-PARTY AND UIM CLAIMS

Bomentre v. Alifano and Nationwide, Nov. Term, 2009 No.: 447 (C.P. Phila. April 7, 2010 Glazer, J.) (Without Opinion, trial court denied third-party Defendant’s Preliminary Objections to joinder of claims against third party Defendant and UIM carriers, Nationwide and State Farm.  The court noted that the claims against third party Defendant and UIM carriers “may be properly joined as they arise out of the same occurrence and have common questions of law or fact….the joinder will save resources, time and expense.  There is no mis-joinder and the claims will be tried together in this court”).  

 

Spano v. Carney and Nationwide, March Term, 2008 No.: 5707 (C.P. Phila. July 3, 2008 New, J.) (Without Opinion, trial court denied Preliminary Objections of tortfeasor Defendant arguing improper joinder and that the inclusion of the UIM claim with the third party claim would impermissibly allowed evidence of insurance to be introduced in violation of Pa. R.E. 411.  The court also denied tortfeasor Defendant’s Preliminary Objection on improper venue; since court denied Preliminary Objections on mis-joinder of actions, venue issue raised by Defendant was also denied.)

 

Shipers and Thompson v. Brown and Safe Auto, No.: GD-13-002037 (C.P. Allegheny April 26, 2013 O’Reilly, J.) (In Order without Opinion, trial court overruled Preliminary Objections of tortfeasor Defendant seeking severance and allowed Plaintiffs’ negligence and UIM claim to remain join.   The trial court also noted in its Order that evidence of the third party Defendant’s insurance coverage would be admissible at trial in order to determine the extent of the UIM carrier’s liability).  

 

 

CASES NOT ALLOWING FOR JOINDER OF THIRD-PARTY AND UIM CLAIMS

Vecchio v. Tunison and Erie Insurance Exchange, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.) (In Order without Opinion, trial court granted Motion to Bifurcate filed by UIM carrier in the combined negligence/UIM action, which motion was filed less than two (2) months before this scheduled date of the trial listing.  The trial court ordered that the Plaintiffs’ third party negligence claim would be tried before the jury first, with the UIM claim tried separately thereafter.)  

Ryan and Neilson v. Hatala and Allstate, No.: 12-004323 (C.P. Delaware Nov. 12, 2012 Proud, J.) (In Order without Opinion, the trial court sustain the third party Defendant’s Preliminary Objections under arguments that the presence of the UIM carrier in action would cause the tortfeasor Defendant undue prejudice and would violate Pa. R.E. 411.   The third party Defendants also argued that the causes of action were impermissibly joined together under Pa. R.C.P.  2229(b) because the issues and proofs at issue in the Plaintiffs’ negligence claims were different from the issues and proofs at issue in their claims against the UIM carrier.   The court granted the Preliminary Objections of the third party Defendants and dismissed them from the action without prejudice to the Plaintiffs’ right to institute a separate action against them).  

 

Levin v. Grandinetti and Progressive, March Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.).   (Without Opinion, court granted Preliminary Objections of the UIM carrier based upon improper joinder of causes of action and improper venue.   The court severed Plaintiff’s claims against the third party Defendant and the UIM carriers without prejudice to the Plaintiff’s right to file their UIM claims in Montgomery County or the US District Court for the Eastern District of Pennsylvania).

 

Matteo v. Andeno and Progressive, February Term, 2012 No.: 0193 (C.P. Phila. Aug. 2, 2012, Aug. 30, 2012 Tereshko, J.). (By Order without Opinion on August 12, 2012, the trial court sustained the UIM carrier’s Preliminary Objection based upon improper joinder and severed Plaintiff’s negligence and UIM claim.  By subsequent Order dated August 30, 2012, the trial court further ordered that the Plaintiffs’ negligence and UIM claims be severed in their entirety for purposes of discovery and trial).  

 

Saltzburg v. Hayes and State Farm, November Term, 2010 No.: 03227 (C.P. Phila. Jan. 19, 2011 Tereshko, J.) (Without Opinion, a trial court sustained the Preliminary Objections of the third party Defendant seeking severance of the Plaintiff’s third party and UIM claims.   The court dismissed Plaintiff’s claims against the third party Defendant without prejudice to the Plaintiff’s right to refile those claims in Montgomery County).  

 

Skrocki v. Erie Insurance and Row, February Term, 2012, No.: 03826 (C.P. Phila. Feb. 12, 2013 Tereshko, J.) (Following an automobile accident in Berks County, Plaintiff filed a combined negligence/UIM action against the third party Defendant, a resident of Berks County, and the Plaintiff’s UIM carrier.   The UIM carrier filed Preliminary Objections seeking severance of the Plaintiff’s negligence in UIM claims and also filed a Motion to Transfer Venue in the basis of forum non conveniens.   The trial court granted the carrier’s Preliminary Objections and severed the actions but denied the UIM carrier’s Motion to Transfer Venue.   The trial court also ordered that the Plaintiff’s claims against the third party Defendant will be tried first followed by a trial of the Plaintiff’s claims against the UIM carrier and that both trials would be held before different juries.   In this matter, the third party Defendant had also filed Preliminary Objections to improper venue, seeking a transfer of the matter from Berks County.   The trial court sustained the third party Defendant’s Preliminary Objections and ordered the entire matter transfer to Berks County.   The trial court held that because the UIM claim had been severed from the negligence claim, the accident occurred in Berks County, and that the third party Defendant was served with process in Berks County, there is simply no connection with this case to support proper venue in Philadelphia County. 

 

VENUE IN LAWSUITS AGAINST UM/UIM CARRIER

Johns v. Jones and Erie Insurance Exchange, January Term, 2011, No.: 1395 (C.P. Phila. Mar. 17, 2011 Moss, J.) (A Delaware County resident Plaintiff was injured in a motor vehicle accident in Philadelphia County, which accident was allegedly caused by a tortfeasor who resided in Philadelphia County who was operating a vehicle owned by a third party Defendant owner who resided in Delaware County.   At the time of the accident, the Plaintiff maintained a UIM policy with Erie, which contained a venue clause that required all suits against Erie for UIM benefits to be filed in the insured’s legal domicile at the time of the accident.   The Plaintiff filed suit in Philadelphia County against third party tortfeasors and the UIM carrier.   Erie filed Preliminary Objections to improper venue citing the venue clause.   Without Opinion, the trial court entered an Order transferring the entire matter to the Court of Common Pleas of Delaware County).  

 

Levin v. Grandinetti and Progressive, March, Term 2010, No.: 0080 (C.P. Phila. June 14, 2010 Tereshko, J.) (Montgomery resident Plaintiffs were involved in an accident in Philadelphia County.  Two of the third party Defendants resided in  New Jersey and a third was resident of Montgomery County. Without Opinion, the trial court granted the Preliminary Objections of the UIM carrier and severed the Plaintiff’s claims against the third party Defendants and the UIM carriers, without prejudice to the Plaintiffs’ right to file their UIM claims in Montgomery County or in the U.S. District Court for the Eastern District of Preliminary Objections.  

 

Morroney v. Allstate, November Term, 2011, No.: 0931 (C.P. Phila. Dec. 28, 2011 Moss, J.) (Montgomery County resident Plaintiff was injured in a motor vehicle accident.   The Plaintiff maintained a UIM policy with Allstate that contained a venue clause requiring all lawsuits against Allstate for UIM benefits to “be brought, heard, and decided in the county in which your [the insureds] address shown on the policy declarations is located.”  Following the accident, the Plaintiff filed suit in Philadelphia County given that Allstate regularly conducted business in that county.  Allstate filed Preliminary Objections to improper venue, citing the venue clause.   Without Opinion, the trial court sustained Allstate’s Preliminary Objections and transferred the entire matter to the Court of Common Pleas in Montgomery County).  

 

Spano v. Carney and Nationwide, March Term, 2008, No.: 5707 (C.P. Phila. July 3, 2008 New, J.) (Bucks County resident Plaintiff was injured in a car accident in Bucks County caused by a third party Defendant who resided in Bucks County.   Plaintiff filed suit against the third party Defendant and the UIM carrier in Philadelphia County on the basis that Nationwide conducted business in Philadelphia.   The third party Defendant filed Preliminary Objections to improper joinder and improper venue.   Without Opinion, the trial court denied both Preliminary Objections).

 

Taylor v. Nationwide and Natale, August Term, 2008, No.: 3204 (C.P. Phila. Dec. 14, 2009 Abramson, J.) (Plaintiff and third party Defendants were residents of Chester County and were involved in a motor vehicle accident in Chester County.  Plaintiff filed a lawsuit against the third party Defendants and the UIM carrier of Philadelphia County.   Without Opinion, the trial court denied third party Defendant’s Motion to Transfer Venue from Chester County on grounds of forum non conveniens).  

 

 

 

 

Summary Judgment Granted in Schuylkill County Slip and Fall Case

In his June 5, 2013 Opinion in the case of Bruce v. McCann Education Centers, No. S-467-2010 (C.P. Schuylkill Co. June 5, 2013 Goodman, J.), Judge James P. Goodman of the Schuylkill County Court of Common Pleas granted summary judgment in favor of the defendant in a slip and fall case.

According to the Opinion, the Plaintiff alleged personal injuries as a result of allegedly slipping and falling on water and/or other liquids that had been spilled on the floor in the area of the Plaintiff's fall and/or tracked there from a nearby cafeteria in the school.

After discovery was complete, the defense filed a motion for summary judgment primarily asserting that the Plaintiff could not identify the substance or debris that caused her to fall and could not state how long that substance was present prior to the Plaintiff's fall.

The Plaintiff countered by arguing that, even if she could not identify the exact substance that allegedly caused her to fall, she could present her own testimony as to the cause of her fall, pictorial and testimonial evidence that she fell in an area where there were commonly wet or dried spills on the floor, and that there was no janitor on duty at the time.

According to the Opinion, the record before the court contained evidence that it had rained earlier that day, that the Plaintiff admitted that she never saw any substance prior to her fall, and that the Plaintiff admitted that her clothes were not wet after the fall. 

There was also testimony from an eyewitness who testified that he observed the Plaintiff walking backwards out of the cafeteria while talking to someone in the cafeteria at which point the Plaintiff tripped over her own two feet and fell.

After thoroughly reviewing the law of premises liability, the court ruled that the Plaintiff could not establish a breach of any duty on the part of the Defendants.  Not only was the Plaintiff unable to specifically identify any substance that caused her to fall, there was no evidence to show how long any such alleged substance was located on the floor so as to allow for a finding of actual or constructive notice on the part of the Defendants.  As such, summary judgment was entered in favor of the Defendants.

Anyone wishing to review this case of Bruce v. McCann Education Centers may click this Link.

I send thanks to Attorney Shawna Laughlin of the Law Offices of Thomas J. Kelley in Moosic, PA for bringing this case to my attention.

2013 Top Rated Lawyer in Insurance Law

I am pleased to announce that, in addition to my recent AV Rating, American Lawyer Media and Martindale-Hubbell™, recently advised me that they had selected me as a ‘2013 Top Rated Lawyer in Insurance Law’ with respect to my handling of insurance defense matters in all of the counties that make up the Northeastern corner of Pennsylvania.

REGISTRATION OPEN FOR PDI ANNUAL CONFERENCE IN BEDFORD SPRINGS

Contact PDI Executive Director, Dave Cole, at coled01@padefense.org to secure a copy of the Registration Form for the PDI Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, PA on July 18-19, 2013.  The PDI has arranged for a full slate of CLE opportunities, great speakers, and resort activities, including but not limited to golf.

ARTICLE: Recurring Issues With Verdict Slips Continue to Divide Parties

The following article of mine appeared in the May 14, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media (ALM).

 

Recurring Issues With Verdict Slips Continue to Divide Parties

by

Daniel E. Cummins, Esq.
Pennsylvania Law Weekly
May 14, 2013

 

A common dispute between plaintiffs and defendants at any civil trial is how many lines should be placed on the verdict slip for the jury to put down dollar amounts for awards.

Typically, plaintiffs want as many lines as possible, one for each element of damages, such that a jury could possibly require a calculator to tally up all of the numbers in the end. In contrast, defendants push for a single, catch-all line for damages at the end of the verdict slip with the idea that one line will prevent the dollars from adding up.

Multiple Lines Allowed

The current law on the issue in Pennsylvania state courts appears to opt for a middle ground.
Pennsylvania law generally provides that, with respect to verdict slips, "if special findings would add to a logical and reasonable understanding of the issue, it is within the discretion of the trial judge to grant such a request," as the court held in Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376, 1381 (1984). Generally speaking, itemized damages are recognized and acceptable under Pennsylvania law.

For example, in Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994), the Pennsylvania Supreme Court affirmed a verdict for the plaintiff in a personal injury matter where there were nine separate categories of damages itemized on the verdict slip. Similarly, in DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994), the Commonwealth Court affirmed a verdict in favor of the plaintiff in an automobile accident case where the verdict slip itemized 10 separate damage categories.

A Line of Cases

The issue of the permissible number of lines on a verdict slip came to the forefront in the now-overruled case of Carpinet v. Mitchell, 853 A.2d 366 (Pa. Super. 2004). In Carpinet, the Pennsylvania Superior Court found that a jury verdict slip utilized by the trial court judge containing an itemized list of potential damages was impermissible. The relevant jury verdict interrogatory in Carpinet contained six lines, one for each of the following elements of damages caused to plaintiff, Robert J. Carpinet, as a result of an accident:

• For past, present and future pain and suffering.
• For past, present and future loss of the pleasures and enjoyments of life.
• For past, present and future emotional distress and anxiety.
• For past, present and future embarrassment and humiliation.
• For the past, present and future loss of feeling of wellbeing.
• For scarring and disfigurement.

The Superior Court in Carpinet ruled that the jury instructions in that case were prejudicial to the defendant "as the charge and the jury verdict interrogatory flowing from it impermissibly instruct that the catalog of misfortunes are separate compensable elements of damages."

The court additionally noted that the first, third and fifth of the above categories of the jury verdict interrogatory were "clearly duplicative." Also, with respect to the second item above, the Superior Court in Carpinet stated that "the law has not been particularly clear whether loss of life's pleasures is separate from, rather than a component of, pain and suffering."

Significantly, the Superior Court in Carpinet further noted that "it appears that piecemeal awards for various forms of pain and suffering have never been the law of Pennsylvania and we see no authority which would allow juries to break into separate, individual compartments that which has been long considered a single item of damages."

Accordingly, the Carpinet court found that the trial court was in error by inviting the jury to enter six separate awards for pain and suffering types of damages.

The Superior Court said in Carpinet that the better practice is for the trial court to generally charge the jury on pain and suffering and then allow counsel to argue the various components or elements of pain and suffering damages within reason. In the Carpinet case, given the prejudicial nature of the jury verdict form, the Superior Court granted the defendant a new trial limited to damages.

According to the more recent Superior Court decision in Gillingham v. Consol Energy, 51 A.3d 841 (Pa. Super. 2012), the Carpinet decision has since been supplanted by Pa. R.C.P. 223.3, which was adopted August 4, 2004, and went into effect December 1, 2004. That rule governs the conduct of the trial for causes of actions for bodily injury or death and specifically outlines the proper jury instructions for noneconomic loss (i.e., pain and suffering) claims.

The rule provides, in pertinent part, as follows: "In any action for bodily injury or death in which a plaintiff has raised a claim for a damage award for noneconomic loss that is viable under applicable substantive law, the court shall give the following instructions to the jury: The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering;(2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement."

In the Gillingham case, the Superior Court upheld a verdict slip that contained itemized categories of damages that apparently included separate lines for past and future disfigurement, loss of life's pleasures and embarrassment and humiliation. The opinion is not clear on exactly how many lines were permitted on the verdict slip in this regard.

In so ruling, the Gillingham court relied upon the case of McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), as supporting line items on a verdict sheet consistent with the categories noted in Pa. R.C.P. 223.3.

In McManamon, the Pennsylvania Superior Court had previously upheld a verdict slip that contained the following itemization of potential damages to be decided by a jury:

"State the amount of damages sustained by the plaintiff, Theresa McManamon, as a result of this accident, without regard to and without reduction by the percentage of causal negligence, if any, that you have attributed to the parties."

The verdict slip asked for six items:

• Past medical expenses.
• Future medical expenses.
• Past lost earnings.
• Future lost earning capacity.
• Past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life.
• Disfigurement.

In McManamon, the court therefore upheld the verdict slip, which presented the jury with a single line item for past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life. That court therefore found that there was no improper separation of categories as alleged in the Carpinet case.

Accordingly, the Superior Court in McManamon rejected the defendant's reliance on Carpinet as being misplaced. Furthermore, as noted above, the ruling of Carpinet has since been supplanted by Rule 223.3.

Still Grounds for Disagreement

The above law answers most questions but leaves some room for dispute with respect to the proper framework of civil litigation verdict slips.

A review of the above cases and Rule 223.3 appears to support the allowance of a single line on the verdict slip for the noneconomic damages claims, with all of those types of damages (past, present and future pain and suffering, embarrassment and humiliation and loss of enjoyment of life) being permitted to be noted in that single line item of the damages portion of the verdict slip.

However, others may read Rule 223.3 in conjunction with the most recent Gillingham decision as still supporting an argument that separate lines should be utilized for the elements of past and future disfigurement, loss of life's pleasures and embarrassment and humiliation.

All of the cases and Rule 223.3 can be read in support of the notion that the element of disfigurement is entitled to its own line on a verdict slip.

Arguably, separate lines may be warranted for economic damages claims at issue in a personal injury matter. Whether economic damages claims for wage loss and medical expenses should be set forth in the verdict slip with separate lines for the past and future aspects of those damages remains a common area of dispute.

Although that separation of lines was not denied in the McManamon case, trial courts have a history of allowing this separation of damages on the verdict slip at times and denying it at times.

Overall, it is well settled that the drafting of the verdict slip, and whether to use a single line for damages or allow for an itemized list of damages on that document, remains well within the court's broad discretion. Oftentimes, the court will attempt to have the parties agree to a particular verdict slip on the record in order to avoid any appellate issues in this regard.

The hope of the courts is that the defense's fear of too many lines on the verdict slip versus the plaintiff's fear of ending up with too few lines on the verdict sheet will result in a verdict slip satisfactory to all parties and without any appellate issues preserved on the record.

Of course, with the law still being somewhat in a state of flux in this regard, counsel should remember to place their objection on the record before the jury is excused to its deliberations if this issue is to be preserved to take up on appeal. •


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

REGISTRATION NOW OPEN FOR PDI ANNUAL MEETING (JULY 18 - 19, 2013)

Contact PDI Executive Director, Dave Cole, at coled01@padefense.org to secure a copy of the Registration Form for the PDI Annual Meeting set to take place at the Bedford Springs Resort in Bedford Springs, PA on July 18-19, 2013.  The PDI has arranged for a full slate of CLE opportunities, great speakers, and resort activities, including but not limited to golf.

Carbon County Post-Koken Order in Favor of Severance

Last week Judge Joseph J. Matika in Carbon County granted, by Order only, a  UIM carrier Defendant's motion to sever the UIM claim from the third party claim at trial in the case of Fatja v. Kemfp and Allstate, No. 12-0720 (C.P. Carbon Co. May 31, 2013 Matika, J.).  According to the Order, all parties agreed to the entry of the ruling at a Pre-Trial Conference.

 

Anyone desiring a copy of this Post-Koken Order in favor of severance out of Carbon County may contact me at dancummins@comcast.net.

 

I send thanks to Attorney Catherine Stehlin of the Bethlehem, PA law firm of Kings, Spry, Herman, Freund & Faul for bringing this decision to my attention. 

 

Bad Faith Experts Precluded by Court as Unnecessary for Jury's Understanding of Issues Presented

In his May 31, 2013 decision in the case of Schifino v. GEICO, No. 2:11-CV-1094 (W.D. Pa. May 31, 2013, McVerry, J.), Federal Western District Court Judge Terrence F. McVerry ruled on Motions In Limine filed by both parties in a bad faith litigation.  

Of note, the Court granted each party’s Motion In Limine to preclude the expert testimony of the experts retained by both parties to address the alleged bad faith issues.  

Although the Court stated that it had concerns about the many legal conclusions contained in the Plaintiff’s bad faith expert’s report and the bases upon which those conclusions were reached, the Court did not rest its decision to preclude both party’s experts on that particular ground.  

Rather, in Schifino, Judge McVerry relied upon the case of Smith v. Allstate, Ins. Co., No. 3:11-CV-165, 2012 W.L. 5463099 (W.D. Pa. Nov. 8, 2012), in which that Court set forth the test for the admissibility of an expert witness in a bad faith matter.  Judge McVerry followed the Smith v. Allstate court's holding that issues of bad faith reviewed by the expert witnesses were neither complex nor scientific, and did not require specialized skill or knowledge to by a jury to understand.  As such, the expert testimony was not allowed in Smith v. Allstate.

Similarly, in this Schifino, the Court ruled that the bad faith issues upon which the experts were retained to testify were outside the scope of proper expert testimony.   The Schifino court found that concept of bad faith to be within the ordinary understanding of average laypersons such that expert testimony was not necessary in this particular case.  

In this matter, the central issue is whether GEICO had a reasonable basis for the manner in which it handled the Plaintiff’s claim.   The Schifino court thought that a reasonable juror certainly possessed the requisite knowledge to assess the bad faith allegations which were deemed by the court to be neither complex nor scientific.   

The court in Schifino used the same rationale to preclude the Defendant’s bad faith liability expert.  

 

Anyone wishing to review the Schifino v. GEICO decision may click this LINK.  The case of Smith v. Allstate can be viewed HERE.

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel for bringing this case to my attention.

Judge Mariani of Federal Middle District Court Addresses Bad Faith Claim in Third Pary Context

In his recent Opinion in the case of Bodnar v. Nationwide Mut. Ins. Co., No. 3:12-CV-1337, slip copy, 2013 WL 2147807 (M.D. Pa. May 16, 2013 Mariani, J.), Federal Middle District Court Judge Robert D. Mariani addressed a Motion for Summary Judgment filed by Defendant AMCO Insurance Company in a bad faith action.

The carrier sought the entry of judgment in its favor on the basis that its payment of its insured's liability policy limits of $1 million dollars plus interest to settle and resolve in full the case against its insured discharged, as a matter of law, the liability carrier's duty to act with the utmost good faith towards its insured in fulfillment of its contractual obligations under the liability policy and thereby precluded any statutory bad faith claim under 42 Pa. C.S. §8371.  

According to the Opinion, after the underlying claim by the injured party was settled by the payment of the policy limits, the insured Defendant filed suit against the liability carrier.  Count I on the Complaint alleged a bad faith claim under 42 Pa. C.S. §8371.   Count II of the Complaint asserted a breach of contract claim under the liability policy. 

According to the Opinion, the insured’s essential allegations were that the liability carrier disregarded the interests of its insured with its allegedly unjustified and unreasonable refusal to settle the action of the injured party.   In addition to claiming actual and consequential damages, the insured requested the payment of damages for severe emotional distress, anxiety, depression, and psychological harm to the insured by virtue of the carrier’s failure to settle earlier.  

In defense, the liability carrier asserted that the insured’s policy limits plus interest were paid in accordance with a settlement agreement prior to trial and, therefore, prior to any finding of any liability in the underlying lawsuit and/or any entry of any award of damages against the insured in the underlying lawsuit.  The Opinion confirms that the underlying lawsuit was discontinued after the payment of the policy limits.  

The Defendant liability carrier additionally asserted that, in the absence of the possibility of an excess verdict, there was no viable, common law bad faith claim against the carrier.   The Defendant carrier made the same argument with respect to the Plaintiff’s statutory bad faith claim under 42 Pa. C.S. §8371.  

After a detailed review of the applicable law of bad faith in this context, Judge Mariani rejected the insurance carrier’s argument that its ultimate payment of the policy limits to the underlying injured party, in and of itself, served as a complete defense entitling the liability carrier to summary judgment as a matter of law.   The Court also noted that the converse was not true either, i.e., that a carrier's delay in the settlement of the claim, standing alone, presents a cause of action for breach of contract or bad faith.  Rather, each case must be viewed and analyzed based upon the particular facts present.  

Judge Mariani ruled that there were issues presented as to whether or not the liability carrier’s payment of the limits was delayed for an inordinate and/or unreasonable amount of time during which time the insurer’s conduct had to be evaluated by a jury as to whether or not such conduct violated the carrier’s duty of good faith to fairly evaluate and resolve the claim.  

In denying the carrier’s Motion for Summary Judgment, Judge Mariani stated that he expressed no opinion as to the merits of the Plaintiff’s claims on these issues.  Rather, such issues were left for a jury to decide.  

Anyone wishing to review this detailed bad faith Opinion by Judge Mariani in the case of Bodnar v. Nationwide, may click this LINK to view it online.

Specificity Needed in Indemnification Agreement to Waive Employer Immunity in Personal Injury Litigation

In his recent decision in the case of Genevich v. TSE Inc., No. 09 - CV - 5119 (C.P. Lacka. Co. May 17, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of the specificity required in an indemnification agreement to waive employer immunity in a personal injury litigation.

In Genevich, a laborer who was injured in a construction site accident filed a personal injury suit against the project’s general contractor.  The general contractor joined the laborer’s employer based upon an indemnification clause contained in its subcontractor agreement. 

The employer filed a motion for summary judgment in which the employer of the injured party asserted that the indemnification provision in the subcontractor agreement was insufficient to waive its tort immunity under the Worker’s Compensation Act so as to make employer liable for indemnification or contribution for injuries suffered by its employee. 

After reviewing the record before it, the court ruled that since the indemnification clause did not expressly state that the subcontractor agreed to indemnify the general contractor from liability for the general contractor’s own negligence which resulted in harm to the subcontractor’s employees, the clause lacked the specificity required by 77 P.S. §481(b) for the subcontractor to waive its employer immunity under the Worker’s Compensation Act. 

Accordingly, since the subcontractor cannot be liable for indemnification or contribution under the facts and the indemnification clause presented in this case, the court granted the employer's motion for summary judgment.

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