Saturday, November 30, 2013

Is Tort Talk Worthy of Being on ABA Journal's Blawg 100 List?

The ABA Journal just issued its Annual Blawg 100 in its most recent edition but, unfortunately, Tort Talk was not selected by the panel of judges to be included in its initial list even though it made the cut last year.

However, according to the ABA's website, there is what the magazine calls a Blawg Amici aspect to the selection process. These friend-of-the-blawg submissions, or votes, are short testimonials from fans in support of particular blogs.

If you wish to nominate Tort Talk ( in this regard, please use this LINK.  I note that, in order to avoid voting irregularities, the ABA Journal does require voters to register (at no charge) to its website in order to vote.  I have read that, all you have to do is enter a username, email address, and password to register, and submit a write-in vote for Tort Talk.

If you have any trouble, click HERE for the "Contact Us" page to send an email to the magazine for assistance.

I THANK YOU VERY MUCH for your time and consideration in this regard.

Friday, November 29, 2013


Here's a LINK to a recent article of mine entitled "Holiday Book Gift-Giving for Lawyers" (originally entitled "'Hone' for the Holidays") that was recently published in the Pennsylvania Lawyer magazine providing suggestions for holiday gifts for lawyers in the form of a variety of book suggestions to assist attorneys in honing their lawyering and people skills, or for otherwise reading for enjoyment.

Wednesday, November 27, 2013


Taking a moment to say THANKS VERY MUCH to you for reading and supporting Tort Talk. 

I also send THANKS to all who have supported with your attendance at the Tort Talk Expo CLE along with those who have contributed tips throughout the year on important cases and trends in Pennsylvania Civil Litigation Law. 

I appreciate--and I am grateful--for your readership, support, and friendship.
I send Best Wishes to you for a HAPPY THANKSGIVING and a relaxing holiday weekend.
Dan Cummins 

Superior Court Addresses When Duty to Defend by Excess Carrier is Triggered

On an issue of apparent first impression in the case of Lexington Insurance v. Charter Oak Fire Insurance, No. 2876 EDA 2012, 2013 Pa.Super. 286 (Pa.Super. 2013 Bender, P.J., Donohue, J., Musmanno, J.)(Opinion by Bender, P.J.), the Pennsylvania Superior Court ruled that the duty of an excess insurance carrier to defend an insured is triggered when the primary carrier exhausts its policy through actual payment of a judgment or settlement.

The underlying case involved a contractor and a subcontractor, who had obtained multiple layers of insurance.  The contractor, subcontractor and others were sued after a fatal accident on a work site.

The unanimous Superior Court panel found that an excess carrier had a duty to defend an insured once a primary carrier had exhausted its policy as opposed to when the parties were still engaged in settlement negotiations that would exceed the primary policy limits.

Anyone wishing to review this decision may click this LINK.

Source: Article - "Excess Insurer's Duty Triggered by Exhausted Primary Policy" by Max Mitchell, The Legal Intelligencer (Nov. 18, 2013).

Tuesday, November 26, 2013

Tort Talk Presentation to Staff Counsel Committee of PBA

On November 21, 2013, I presented a Civil Litigation Update and a discussion of "Tort Talk as a Legal Research Tool" to members of the Staff Counsel Committee of the Pennsylvania Bar Association.

Click HERE for tips on utilizing the Tort Talk blog as a way to kick-start your legal research on a particular topic.

I send thanks to Attorney Ken O'Neill, the newly appointed Pennsylvania statewide Managing Partner of Staff Counsel for Allstate for the invitation to present to the Committee.

Monday, November 25, 2013

Federal Middle District Magistrate Judge Mehalchick Addresses Attorney-Client Privilege and Attorney Work Product Doctrine in Discovery Dispute

In one of her first Opinions from the bench in the Federal District Court for the Middle District of Pennsylvania, Magistrate Judge Karoline Mehalchick thoroughly reviewed the current status of the law pertaining to the attorney-client privilege and the attorney work product doctrine.

The case before Judge Mehalchick, entitled Dempsey v. Bucknell University, No. 4:11-CV-1679 (M.D.Pa. Oct. 7, 2013 Mehalchick, M.J.), arose out of a breach of contract claim filed by a student against the university relative to student conduct hearings held.  At issue were certain documents withheld from discovery by the plaintiff in response to the defendant's Rule 34 discovery requests on the grounds of the attorney-client privilege and the attorney work product doctrine.

Judge Mehalchick's 33 paged Opinion provides a nice overview of the current status of the law in Pennsylvania with respect to these two doctrines.  Ultimately, the plaintiff's objections to the need to produce various documents pertinent to the litigation were sustained in part and denied in part by the court.

One interesting aspect of the Opinion involves the court's analysis of whether documents needed to be produced in light of the fact that the student-plaintiff's parents were privy to such documents.  The court noted that some of the documents prepared by the student-plaintiff's parents, as agents to their son's attorney and in the preparation of the son's defense, were found to be protected from discovery.

Anyone wishing to review Judge Mehalchick's Opinion in the case of Dempsey v. Bucknell University may click this LINK.

I send thanks to Attorney Harry Coleman of Coleman Law Offices in Carbondale, Pennsylvania for bringing this case to my attention.

Judge Robreno of Eastern District of PA Denies Limited Tort Summary Judgment Motion

In its recent decision in the case of Peterman v. Sakalauskas, No. 11-CV-6265 (E.D. Pa. Oct. 10, 2013 Robreno, J.), Eastern District of Pennsylvania Judge Eduardo C. Robreno denied a Motion for Summary Judgment filed by the Defendant in a limited tort case.  

The motion was denied as the court found that genuine issues of material fact existed as to whether the Plaintiff’s alleged injuries were serious enough to breach the limited tort threshold.  

The Plaintiff allegedly sustained multiple permanent disc bulges and sprains to the neck and back.   The Plaintiff asserted that these medical issues resulted in decreased employment opportunities and limitations in her ability to perform a job due to the the fact that she was allegedly unable to use her hands fully.  The Plaintiff also alleged that her social life was impacted as well.  

The Court's Opinion in the Peterman case can be viewed HERE and the companion Order HERE.

Source:  "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (November 4, 2013).

Friday, November 22, 2013

Huge Drunk Driving Jury Verdict Handed Down in Allegheny County

Here is a LINK to a November 22, 2013 article entitled "Pittsburgh Jury Awards $28 Mil. Drunk Driving Verdict" by Max Mitchell of The Legal Intelligencer.

The verdict was issued in the case of Trail v. Lesko, a case name Tort Talkers may recall as a prominent Facebook Discovery case--See HERE.

The jury trial took place in Allegheny County in a case presided over by Judge Alan Hertzberg.  Plaintiff's attorney was John P Gismondi of Gismondi & Associates.

PRESIDENT JOHN F. KENNEDY (May 29, 1917 - November 22, 1963)

"Our most basic common link is that we all inhabit this planet.  We all breathe the same air.  We all cherish our children's future.  And we are all mortal."

(May 29, 1917 - November 22, 1963)

Thursday, November 21, 2013

First Party Carrier's Subrogation Claim Against Workers' Comp Carrier Denied

In its recent decision in the case of Liberty Mut. Ins. Co. v. Excalibur Management Services, No. 1792 C.D. 2012 (Pa.Cmwlth. Nov. 8, 2013 Leadbetter, J.), the Pennsylvania Commonwealth Court addressed a first party auto carrier's subrogation rights against a workers' compensation carrier.

Liberty Mutual, the first party auto carrier, had paid out first party medical benefits to its insured as a result of a work-related motor vehicle accident.  The first party carrier was seeing reimbursement from the injured party's workers' compensation carrier for the medical benefits the first party carrier had paid out during times when the worker's compensation claim was in a denied status. 

The injured party eventually did secure workers' compensation benefits and that workers' compensation claim was eventually resolved by way of a compromise and release agreement.  Thereafter, the first party auto carrier filed suit on its subrogation/reimbursement claim against the workers's compensation carrier.

The worker's compensation carrier countered with preliminary objections putting forth the primary argument that the first party auto carrier had failed to exhaust its statutory remedies during the pendency of the worker's compensation matter and prior to filing this suit.

The Commonwealth Court ultimately ruled because Liberty Mutual, the injured claimant's auto insurer, failed to establish its subrogation or right of reimbursement interests for having paid its insured's medical bills during the pendency of its insured's workers' compensation claim, the trial court was correct in dismissing Liberty's complaint against the workers' compensation insurer.

The Commonwealth Court found that not only did Liberty pursue its claim in the wrong forum, it waited too long.  In so ruling the court stated that subrogation under the second paragraph of 77 P.S. § 671 is not self-executing.  Rather, the language in § 671 is clear and mandatory and, in applying this language, the Commonwealth Court found that Liberty Mutual had failed to exercise reasonable diligence in seeking reimbursement.  As such, the subrogation/reimbursement claim was dismissed.

I send thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.
Anyone wishing to review this decision may click HERE.

Judge Minora of Lackawanna County Reviews Attorney-Client and Work Product Privileges Claimed in Post-Koken Discovery Dispute

In an appeal from a decision from the Lackawanna County Special Trial Master for discovery matters in the Post-Koken case of Marion v. Lukaitis and Motorists Mutual Insurance Company, No. 2011-CV-7451 (C.P. Lacka. Co. Nov. 12, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas affirmed the Special Trial Master's decision on a variety of discovery issues and denied the appeal of the Defendant, Motorists Mutual Insurance Company. 
Judge Carmen D. Minora
Lackawanna County

This matter arose out of a July 30, 2011 motor vehicle accident during which the Plaintiff and her minor children were in a stopped vehicle when the tortfeasor Defendant, allegedly traveling at a high rate of speed and under the influence of alcohol, struck the Plaintiff’s vehicle, allegedly resulting in injuries.  

At the time of the accident, the tortfeasor Defendant had no automobile liability insurance.  As such, in addition to suing the tortfeasor Defendant, the Plaintiffs also sued Motorist Mutual Insurance Company in support of an uninsured motorist benefits claim.  

During the course of discovery, the Plaintiff filed a Motion to Compel against the Defendant, Motorist Mutual Insurance Company, alleging insufficient responses to Interrogatories and a Request For Production of Documents.   The Plaintiff’s Motion to Compel was granted by Order of Special Trial Master Burke, after which the Defendant carrier filed its appeal up to Judge Minora in the Lackawanna County Court of Common Pleas.   

One of the central issues presented was the Plaintiff’s discovery requests seeking disclosure of information relating to the Defendant carrier’s evaluation and investigation of the claims for UM benefits, the terms of the policy under which the claim was made, and the nature of the claims handling after suit was filed.   The Defendant carrier asserted that these discovery requests were not relevant and/or were barred by the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

According to the Opinion, the Plaintiffs were more specifically requesting information regarding the records custodian for the insurance application in effect at the time of the accident, information regarding whether the policy, as originally issued, included a mandatory arbitration provision, information on the premiums paid, and information regarding whether or not the Defendant carrier maintained that the Plaintiff was at fault for the accident and/or otherwise barred from recovery.  

The Defendant carrier responded by asserting that it had produced all relevant and discoverable pre-accident log notes, with appropriate redactions.  The Defendant carrier argued that requiring the carrier to produce its post-suit log notes in this claim for UM benefits would violate the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

The Plaintiff asserted that relevancy was not a basis for a privilege argument and that they were seeking information reasonably calculated to lead to the discovery of admissible evidence.   The Plaintiff additionally argued that a claim against post-suit discovery was not a recognized privilege.   The Plaintiff additionally confirmed that they were not seeking any attorney-client or work product privileged portions of the post-suit log notes. 

After noting the Pennsylvania Rules of Civil Procedure generally permit discovery that is broad and liberal, the court denied the Defendant’s appeal.  

Judge Minora initially found that there was law on point allowing for the discovery of the insurance policy in question in both the Rules of Civil Procedure and under Pennsylvania case law.

As to the Plaintiff’s request for information regarding the Defendant’s investigation and evaluation of the UM claim, Judge Minora found that such information, including the identity of the records custodian of the insurance application, as well as the specific information related to the Defendant carrier’s evaluation and investigation of the claim presented, was discoverable as such information pertained to matters stemming from the insurance investigators, and not Defendant’s legal counsel.   As such, the requested information was found not to fall under the attorney work product privilege.

In terms of the Plaintiff’s request for production of post-suit claims log notes, the court noted that the Plaintiff had withdrawn its request for the production of documents requesting the Defendant carrier’s impressions upon the merits of the UM claim as such discovery would violate Rule 4003.3.   Rather, it was emphasized that the Plaintiff was seeking information regarding the methods the Defendant carrier utilized in arriving at its evaluation as well as information upon which individuals were charged with employing those methods. 

Since this UM case involved a breach of contract action, the court found that the production request regarding how the Defendant carrier evaluated a claim, and thereby fulfilled it obligations under the contract in question, were relevant as such information was reasonably calculated to lead to the discovery of admissible evidence.   As such, this discovery was also allowed.  

Anyone desiring a copy of this Opinion by Judge Minora in the case of Marion v. Lukaitis and Motorists Mutual Insurance Company may contact me at

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, PA for bringing this case to my attention.

Wednesday, November 20, 2013

Judge Mazzoni of Lackawanna County Denies Motion for Summary Judgment in Auto Law Bad Faith Claim

In his recent Opinion in the case of Kearney v. Travelers Insurance Company and the St. Paul Fire and Marine Insurance Company, No. 2010-CV-8801 (C.P. Lacka. Co. Nov. 13, 2013 Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas denied the Defendants’ Motion for Summary Judgment in a bad faith claim pursued under 42 Pa. C.S.A. §8371 and arising out of the handling of the Plaintiff’s underinsured motorist claim. 

Judge Robert A. Mazzoni
Lackawanna County
According to the Opinion, after settling his third party claim in this tractor trailer accident involving two tractor trailers, the Plaintiff submitted a claim for underinsured motorist benefits to the Defendants.  

In this matter, due to the fact that the carrier could not locate the relevant “signed down” form for the UIM coverage under the policy, the policy limits were asserted to be $1million in coverage rather than $35,000.00.  

Thereafter, the Plaintiff continued to provide the carrier with medical documentation in support of the claims presented, including several IME reports that were generated during the litigation involving the third party tortfeasor.  The Plaintiff also underwent a Statement Under Oath.   According to the court's Opinion in Kearney, at some point during the litigation, the carrier’s claims representative authorized its defense counsel to communicate to Plaintiff’s attorney a settlement offer of $200,000.00.

However, this offer was never made because, in part, an argument was raised by the UIM defense counsel that the third party Release executed by the Plaintiff constituted a General Release which had the effect of releasing the UIM carrier as well.   Upon receiving this opinion of the defense counsel, the claims representative for the Defendant UIM carrier directed the defense attorney to hold off on any settlement offers.  

The parties thereafter exchanged legal arguments through correspondence over the parameters of the Release and over whether the Court or a panel of arbitrators had the authority to resolve the dispute. 

Judge Mazzoni outlined in detail in his Kearney decision the extent to which the issues of the scope of the Release and the jurisdiction of the arbitration panel to decide the case was litigated by the parties before the Arbitration panel, in the Lackawanna County Court of Common Pleas ,and up to the Superior Court and back again, as well as in the Federal District Court for the Middle District Court of Pennsylvania. 

After the Plaintiff ultimately prevailed in all of these separate court actions with repeated decisions that the third party Release did not bar the UIM claim, that the UIM Arbitration Panel had the authority to rule upon that issue, and that the UIM Arbitration award should be confirmed, the UIM carrier then proceeded to pay the Plaintiff the full amount of the net arbitration award together with interest.

The Plaintiff followed that payment with this breach of contract and bad faith action.   After the bad faith action proceeded through discovery, the Defendant carrier filed a Motion for Summary Judgment.

In his Opinion, Judge Mazzoni provided thorough review of the current status of bad faith law in Pennsylvania.  After applying that law to the case presented, the court denied the summary judgment motion.  

In his Opinion, Judge Mazzoni noted that a significant part of the court’s analysis in denying the motion for summary judgment involved the issues surrounding the carrier’s repeated raising of the legal challenges of the scope of the Release and jurisdiction of the arbitration panel, the timing thereof, and whose decision (defense counsel vs. claims representative) it was to proceed with such arguments.

Judge Mazzoni found that issues of fact remained on the matters presented such that a trier of fact could conclude that the carrier acted in bad faith by raising allegedly patently inapplicable legal issues which were not supported of in law or in fact and which allegedly served no purpose but to delay the ultimate resolution of the claim. 

The court also noted that, despite the carrier’s claim of insufficient medical information, the Plaintiff claimed that, from the first medical records submission by the Plaintiff to the carrier, it took the carrier approximately 18 months to communicate a formal settlement offer.  

Accordingly, based upon his analysis and after reviewing the record in a light most favorable to the Plaintiff as a non-moving party, Judge Mazzoni found that the there were genuine issues of material fact which precluded the court from granting the UIM carrier’s request for summary judgment.  

 Anyone desiring a copy of this Opinion in the Kearney case may click this  LINK.

Tuesday, November 19, 2013

Pennsylvania Superior Court Holds that UIM Claim Requires Multi-Vehicle Accident

In the case of Estate of O’Connell v. Progressive Insurance, No.1517 EDA 2012, 2013 Pa. Super. 271(Oct. 8, 2013), the Pennsylvania Superior Court ruled that the availability of UIM coverage requires a multi-vehicle accident. 

According to the court's Opinion, this matter involved a single car accident that resulted in the death of the driver and two passengers.

The vehicle was covered by an auto insurance policy issued by Progressive to one of the passengers who had permitted the tortfeasor defendant to drive the vehicle. Following the accident, Progressive awarded the estates of the two passengers $100,000 each in liability coverage. The tortfeasor defendant driver of this single car accident also separately maintained auto insurance issued by Allstate Insurance Company ("Allstate").  Allstate awarded the estates of the two passengers $15,000 each in liability coverage.

The Progressive policy issued to one of the decedent passengers and covering the vehicle involved in the accident also provided $100,000 per person/$300,000 per accident in underinsured motorist ("UIM") coverage for each automobile covered by the policy. Three automobiles were covered by the policy, and the insured opted to have their coverage stacked, entitling them to as much as $300,000 per person/$900,000 per accident in UIM coverage. Following the settlement under the liability coverages, the estates of the two passenger decedents put Progressive on notice of a UIM claim under the same policy, asserting that Weber's automobile was an underinsured motor vehicle.

Progressive denied the UIM claim on the ground that the vehicle involved in the accident belonged to the wife/mother of the deceased husband and deceased son passengers.  Progressive asserted that, under its policy terms, the vehicle involved therefore did not meet the definition of an underinsured motor vehicle.

More specifically, under the policy, it was provided that the definition of an "underinsured motor vehicle" did "not include any vehicle or equipment…owned by you or a relative or furnished or available for the regular use of you or a relative [or] that is a covered auto.”

The Plaintiffs filed a Complaint asserting breach of contract and bad faith, based on the denial of UIM benefits. Progressive responded with preliminary objections in the nature of a demurrer.

Following oral argument, the trial court sustained Progressive's objections and dismissed Plaintiffs' Complaint.

On appeal, the Superior Court affirmed the trial court's decision and entered judgment for the carrier in this UIM claim. 

The court found that the terms of the policy were clear and unambiguous.  More specifically, coverage under the policy is triggered when a tortfeasor's liability for the injury is dependent upon his ownership, maintenance, or use of an underinsured motor vehicle.

Here, the tortfeasor was operating a vehicle that was owned by the Progressive insured and which could not be considered an "undersinsured motor vehicle" as per the definitions contained in that policy.

The court rejected the Plaintiff's attempt to argue that the tortfeasor driver was underinsured with respect to his own separate vehicle as covered by Allstate Insurance.  Among other reasons for rejecting this argument, the Superior Court expressly held that "the availability of UIM coverage requires a multi-vehicle accident" which was not the case in this single car accident matter.

Anyone wishing to review this case may click this LINK

Source:  "Court Summaries," by Timothy L. Clawges, Pennsylvania Bar News (November 4, 2013)


Federal Middle District Court Denies Motion to Dismiss Bad Faith Claim in Two Separate Matters

 Pauling v. State Farm, No. 1:13-CV-01348 (M.D.Pa. Sept. 26, 2013 Conner, C.J.)

In his recent decision in the case of Pauling v. State Farm, No. 1:13-CV-01348 (M.D.Pa. Sept. 26, 2013 Conner, C.J.), Chief Judge Christopher C. Conner denied a carrier’s Motion to Dismiss a bad faith claim under 42 Pa. C.S. §8371.  

This matter arose from an investigation of a motor vehicle accident in which the insured was allegedly the victim of a hit and run, i.e., an uninsured (UM) motorist benefits matter.  

The Motion to Dismiss filed by the carrier was denied where there were allegations that the carrier refused to visit the accident scene and declined to seek out eyewitnesses who would have corroborated the insured’s version of the events.   The Plaintiff also alleged that the carrier actively worked against the insured by allegedly pressuring eyewitnesses into providing a false statement placing blame for the accident with the insured.  

Believing that such allegations went beyond allegations of mere negligence on the part of the carrier, the court denied the carrier's motion to dismiss this bad faith claim and allowed the matter to proceed into discovery.

Anyone wishing to review this Pauling Opinion online may click this LINK. 

Schaffer v. State Farm, No. 1:13-CV-01837 (M.D. Pa. Oct. 15, 2013 Rambo, J.)

In the case of Schaffer v. State Farm, No. 1:13-CV-01837 (M.D.Pa. Oct. 15, 2013 Rambo, J.), Judge Sylvia H. Rambo denied a motion to dismiss a UIM bad faith claim under 42 Pa.C.S.A. Section 8371. 

The court found that the record before it contained potentially unacceptable delays in the carrier's acknowledgment of the insured's rights under the policy as well as with the payments of the UIM benefits.  According to the court, the plaintiff alleged that 14 months passed without the carrier completing an evaluation and making and offer.

The court allowed the case to proceed into discovery after finding that the facts alleged in the Complaint indicated questionable investigative and communication practices, particularly when considering that the matter involved no questions of liability with respect to the underlying accident.

Click this LINK to review Judge Rambo's Memorandum Opinion and HERE to review her Order in the Schaffer case.

Source:  Court Summaries by Timothy L. Clawges, Pennsylvania Bar News (November 4, 2013 and November 18, 2013).

Monday, November 18, 2013

Pennsylvania Federal Middle District Court Addresses UIM Sign-Down Forms

In his recent November 4, 2013 decision in the case of Horn v. State Farm Mut. Auto. Ins. Co., Civil Action No. 1:12-CV-1556, 2013 WL 5937341 (M.D. Pa. Nov. 4, 2013), Chief Judge Christopher C. Conner of the Middle District issued an Order adopting the Report and Recommendation of Chief Magistrate Judge Martin C. Carlson pertaining to the issue of the necessity of sign-down forms for UIM coverage.

In this matter, the court ruled that an ex-wife claimant was entitled to $100,000 in UIM coverage and not $15,000 which had been the level of coverage on the policy when her ex-husband was the first named insured.

According to the decision, the ex-wife had assumed policy once she and her husband divorced.  The ex-wife kept the liability limits the same at $100/300,000 but changed the policy to full tort from limited tort.

The court noted that the main distinguishing factor in this case from the case of  Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634 (3d Cir. 2000), is the form the ex-wife signed when she assumed the policy.  The new form in this Horn case contained language that UM/UIM levels were required to match her liability limits unless she wished reduced coverages and provided blanks in the form for her to complete, which she did not.

The ex-wife did, however, sign the new form, which was titled "Acknowledgement of Coverage Selection Form." 

State Farm contended that a new sign down form was not needed and that the ex-wife was entitled to only $15,000 in UM/UIM, which the carrier paid out.

In Horn, the court agreed that State Farm was not under a legal obligation to obtain a new sign down form when ex-wife assumed the policy.  However, the document that the ex-wife signed reflected that UM/UIM would be 100/300 unless she elected lower coverages.

As such, the court found that the insured ex-wife essentially made an affirmative act of declining to reduce her UM/UIM levels, thereby distinguishing this case from the Buffetta case.

Moreover, the court in Horn noted that, in any doubtful or close case, the insured should be afforded the greatest coverage.  In the end, the court granted the ex-wife’s motion for summary judgment and awarded her the amount of the unpaid $85,000.00.

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

Anyone desiring a copy of the same may click this LINK.

Thursday, November 14, 2013

President Judge Seamans of Susquehanna Rules in favor of Severance and Stay in UIM/Bad Faith Post-Koken Case

In his August 28, 2013 Order in the Post-Koken UIM/bad faith case of Zembrzicki v. Allstate Fire & Cas. Ins. Co., 2013 - 475CP(C.P. Susq. Co. 2013 Seamans, J.),  President Judge Kenneth W. Seamans of the Susquehanna County Court of Common Pleas granted a UIM carrier's request to sever the UIM claim from a bad faith claim. 

The court also ruled that discovery in the bad faith claim would be stayed and that the UIM matter would proceed to trial first, followed by the bad faith claim.

Anyone wishing to review this Order out of Susquehanna County, may click this LINK

In so ruling, Judge Seamans, without citing the same, followed the same framework previously set up by Judge R. Stanton Wettick in the Gunn case in Allegheny County which framework has been followed in a number of other counties.  Yet, there are some federal trial courts and state trial courts who have ruled otherwise on this troublesome issue.

Check out the Post-Koken Scorecard on Tort Talk HERE.

Wednesday, November 13, 2013

Pennsylvania Superior Court Addresses Residency Issue in "Non-Precedential" Decision

In its recent October 17, 2013 "non-precedential" decision in the case of Atlantic States. Insurance v. Bubeck, No. 1949 MDA 2012 (Pa. Super. Oct. 17, 2013 Ford Elliot, Plat, Panella, J.J.) (Opinion by Ford Elliot, EPJ), the Pennsylvania Superior Court upheld the UIM carrier’s decision to deny coverage to the Claimant under his parent’s UIM policy based upon the residency issue.  

Although the 24 year old Claimant, ate meals, played video games, and kept clothing at his parents’ house, the record revealed that the Claimant allegedly lived with his girlfriend for more than six (6) months leading up to the accident.  As such, the Superior Court ruled that the carrier was correct in denying coverage under the family’s auto insurance policy.  

The court more specifically noted that the Claimant could not be considered a “resident” of the household under the subject policy when he slept every night somewhere else. As the term “resident” was not defined in the policy, the Superior Court examined the common-law definition and found that the term “resident” or “residency” requires some permanency or habitual repetition at a minimum and that the intent of the party is not irrelevant factor in the test.  

In so ruling, the Atlantic States Insurance Company court relied in part on the case of Amica Mutual Insurance v. Donegal Mutual Insurance, 545 A.2d 343 (Pa. Super. 1988).  

The Atlantic States court stated that the record confirmed that the family who owned a UIM policy did not consider the Claimant to be a household resident.   The court stated that, “forcing [the insurance company] to provide coverage would represent a windfall for [the Claimant], where his parents did not list him as a household resident on their application and presumably paid lower premiums as a result.” 

Anyone wishing to review a copy of this decision may click this LINK.

Source:  Article:  “UIM Coverage Blocked For Son Who Lived Outside Parents’ Home By Max Mitchell of The Legal Intelligencer (October 29, 2013).


Tuesday, November 12, 2013

Continuing Validity of Attractive Nuisance Doctrine Under Pennsylvania Law Confirmed

Confirming that that attractive nuisance doctrine remains viable under Pennsylvania law, the Pennsylvania Superior Court recently entered summary judgment in favor of the Defendant in the case of G.W.E. v. R.E.Z., 2013 Pa. Super. 261, No. 176 MDA 2013 (Pa. Super. Sept. 27, 2013)(Gantman, Allen, and Mundy, J.J.)(Opinion by Allen, J.) (Mundy, J. Dissenting).  

The G.W.E. case involved a premises liability action where children were allegedly injured in their neighbor’s pond.  

The court affirmed the trial court’s entry of summary judgment in favor of the landowners in this negligence action in which the Plaintiffs alleged that the pond constructed by the landowners constituted an attractive nuisance.  The Plaintiffs asserted that the landowner failed to take measures to prevent harm to children.  

After confirming that the record indicated that the children were not regular or even infrequent trespassers on the property of the landowner, the court affirmed the conclusion of the trial court that the landowners did not have knowledge or reason to know of such trespass to satisfy the first element of the attractive nuisance doctrine as set forth under the Restatement (Second) of Torts §339.  

In so ruling, the Pennsylvania Superior Court majority stated that the attractive nuisance doctrine under §339 was “firmly established in our jurisprudence.” 

Under this doctrine, the frequent presence of children over an extended period of time constitutes constructive notice efficient to establish a duty of care on the part of a landowner to trespassing children.  

As noted, the court found that the record in this matter failed to establish any allegation of actual or constructive notice of children trespassing on the property.   As such, summary judgment in favor of the landowner Defendant was affirmed.
Anyone wishing to review the Pennsylvania Superior Court’s Opinion in the case of G.W.E. v. R.E.Z. may click this LINK.

Judge Mundy's dissenting Opinion may be viewed HERE.  Judge Mundy dissented on the basis that, in her view, the Plaintiff's case had met the elements of the attractive nuisance doctrine such that the landowner defendant's motion for summary judgment should have been denied.  In so ruling, Judge Mundy also acknowledged the continuing validity of the attractive nuisance doctrine in Pennsylvania.

Friday, November 8, 2013

Judge Williamson of Monroe County Strikes Vague Catch-all Allegations of Negligence from Complaint

In the case of Votta v. PrimeCare Medical, Inc., PICS Case No. 13-2544 (C.P. Monroe Co. July 11, 2013 Williamson, J.) Judge David J. Williamson of the Monroe County Court of Common Pleas sustained a Defendant’s Preliminary Objections to a Plaintiff’s Complaint with respect to the inclusion of an impermissibly vague “catch-all phrase” of negligence.  

In this action, the Plaintiff who sued the Defendants for allegedly delaying his access to medical treatment while he was incarcerated.  The delay in treatment allegedly resulted in a permanent vision deterioration.

The Plaintiff had included in one of his allegations in the Complaint the phrase, “including but not limited to” with respect to his averments of medical negligence.  

Judge Williamson found that the phrase “including but not limited to” was “exactly the kind of language” that the Pennsylvania Supreme Court held was impermissibly vague in the case of Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983).  

Accordingly, the Monroe County Court of Common Pleas struck this portion of the Complaint in the Votta case.    

Anyone wishing to review a copy of this decision may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and pay a small fee for a copy.  

Source:  Pennsylvania Law Weekly “Digest of Recent Opinions (October 1, 2013).  

Thursday, November 7, 2013

Number of Additional Philadelphia County Post-Koken Decisions Favoring Severance of Claims Uncovered

After presenting at the Rules and Procedures Committee of the Philadelphia Bar Association on Wednesday, November 6, 2013, during which I discussed the Post-Koken Scorecard on Tort Talk, Iwas advised of a number of other recent Philadelphia County Post-Koken decisions all issued by Judge Marlene F. Lachman.  Anyone wishing copies of the below Opinions/Orders may contact me at  I will update the Scorecard with this listing:

Nelson Rios v Andy Parker,  Phila. Ct. Com. Pl., November Term, 2011, No. 01208, Control No. 11123460 (March 1, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; PO filed by the other driver granted to sever tort and contract claims).

Tuan Ahn Ly v. Shawn Murray, Phila. Ct. Com. Pl., June Term, 2013, No. 02575, Control No. 13071025 (August 6, 2013, Lachman, J.) (granting insurance company’s preliminary objection and severing UM and UIM claims from tort claims plaintiffs had against the other driver; order adopts all of the other opinions as the opinion in this motion).


Jamal Giddings v. Traci Poe,  Phila. Ct. Com. Pl., October Term 2011, No. 02393, Control No. 12013528 (April 30, 2012, Lachman, J.) (negligence claim against other driver and UM claim against own insurer; Motion filed by UM carrier is granted to sever tort and contract claim).

Kevin Nguyen v Anvel Dorvil,  Phila. Ct. Com. Pl., October Term, 2011, No. 03880, Control No. 12020163 (May 10, 2012, Lachman, J.) (negligence claim against other driver and UIM claim against own insurer; Motion filed by UIM carrier is granted to sever tort and contract claim).


Vanya Burke v. State Farm Insurance Co., Phila. Ct. Com. Pl., August Term, 2011, No. 01875, Control No. 12090842 (November 13, 2012, Lachman, J.) (denying insurance company’s motion to consolidate a case seeking only UM benefits with a case brought by another plaintiff against the plaintiff in the first action, seeking only tort damages).


William Silver v. Kevin Word, Phila. Ct. Com. Pl. April Term, 2013, No.  00276 Control No. 13081410 (September 23, 2013, Lachman, J.) (denying plaintiffs’ motion to amend the complaint in an action against the other driver to add plaintiffs’ insurance company as a defendant and assert uninsured and underinsured motorist claims against the insurer).

Federal Middle District Judge Conaboy Addresses Superseding Intervening Cause Issue In MVA Case

In his recent decision in the case of Bushta v. Hilton, Civil Action No. 3:12-CV-473 (M.D. Pa. Oct. 9, 2013 Conaboy, J.), Judge Richard P. Conaboy of the United States Federal Middle District Court of Pennsylvania issued an interesting case regarding the issues of causation and superseding intervening cause.  

According to the Opinion, the subject lawsuit arose out of a two distinct motor vehicle accidents and the Defendants asserted that the Plaintiffs could not satisfy the causation element of the negligence claims against the Defendants based upon the one-vehicle accident that actually involved the moving Defendants.

More specifically, the Plaintiff was a Pennsylvania State Trooper, who was called to assist with traffic on Interstate 81 in New Milford Township, Pennsylvania after the initial accident on Interstate 81 northbound involving a tractor trailer in which Defendant James Hilton was driving.   That accident occurred when Defendant Hilton failed to negotiate a right curve in the roadway, ended up traveling off the roadway, and rolled his tractor trailer onto its side.  
The Plaintiff-State Trooper stopped in a middle crossover of the median on Interstate 81 approximately ¾ of a mile to the south of the accident.   The Plaintiff was completely off the roadway.  The Plaintiff remained in his car.  The State Trooper Plaintiff did not put out any flares or sound his siren.  

The Plaintiff-State Trooper was in the crossover of the median for less than five minutes with his overhead red and blue lights on and flashers when his vehicle was struck by a tractor trailer driven by Defendant Winston J. Whitney in the second accident at issue in this matter.  

The court noted in its Opinion that approximately 30 minutes separated the initial accident involving Defendant Hilton, and the second accident involving Defendant Whitney and the Plaintiff.  

It was also noted that the Plaintiff-State Trooper never went to the scene of the accident involving Defendant Hilton and admitted that he knew nothing about that accident and was not part of that investigation.  

The Plaintiff filed a lawsuit against all Defendant drivers involved.  The Defendant, James Hilton, the person involved in the first accident, filed a Motion for Summary Judgment after the completion of discovery.

The moving Defendant asserted that he was entitled to summary judgment because his initial accident was not a proximate cause of the Plaintiff-State Trooper’s injuries.  

The court in this Bushta case provided a detailed description of the basic elements of a cause of action of negligence, including the all-important factor of proximate causation.   The court thoroughly reviewed the numerous factors involved in the determination of proximate causation, including but not limited to, the place of the accident(s), the timely involved, and the particular conduct of the Defendants involved.  

Judge Conaboy also stated that, “[w]hether an intervening act is a superseding cause of the injury which would provide insulation from liability for one whose actions have been determined to be substantial factor in bringing about the harm is governed by Restatement (Second) of Torts §447 (1965).   The court cited the case of Taylor v. Jackson, 643 A.2d 771 (Pa. Cmwlth. 1994).   

Judge Conaboy also noted that the issue of whether proximate cause is for a court or a jury to decide was addressed in Taylor, supra., in which that court stated that “our Supreme Court…observed that determination of whether an actor’s conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonably differ about whether the conduct of the actor has been a substantial factor in causing the harm.”  Id. at 776-777.  Judge Conaboy stated that the Taylor case also confirmed that the issue of whether a third person’s conduct should be considered a superseding/intervening cause of a Plaintiff’s injuries is for a jury to determine where disputed issues of material fact exist.   Id. at 778.

Applying the above law to the record before him, Judge Conaboy ruled that genuine issues of material fact existed to preclude the entry of summary judgment. 

Anyone wishing to review this interesting Opinion may click this LINK.
I send thanks to Attorney Bruce Zero of the Powell Law Firm in Scranton, PA for bringing this decision to my attention.

Any Recent Facebook/Social Media Discovery Decisions Out There?

Has anyone come across any recent Facebook/Social Media Discovery decisions recently?  The last one I have seen was back in May of 2013, that being the Perrone decision out of Lancaster County.

I'd be interested to hear about them and secure copies of any Orders or Opinions from around the Commonwealth to publicize them here in an effort to assist in the creation of a consistent common law on the topic.

The decisions gathered to date here on Tort Talk can be viewed on the Facebook Discovery Scorecard here:

Please let me know at


Wednesday, November 6, 2013

Tort Talk Presentation at Philadelphia Bar Association

On November 6, 2013, I presented a Civil Litigation Update and a discussion of "Tort Talk as a Legal Research Tool" to members of the Rules and Procedure Committee of the Philadelphia Bar Association.

I send thanks to Attorney Jeff Dashevsky of the Philadelphia/South Jersey law firm of Dashevsky, Horwitz, Kuhn, and Novello, P.C., for the invitation to speak.

I also thank Joe Cardoni of Exhibit A for sharing his time and expertise for the creation of the multi-media powerpoint presentation.  I highly recommend the services of Exhibit A for all your trial presentation and video deposition needs whether you are on the plaintiff's side or the defense side.  Exhibit A's website can be viewed HERE.

Pennsylvania Superior Court's Latest Take on the Limited Tort Question

In its most recent take on the limited tort question, the Pennsylvania Superior Court reversed a trial court’s granting of summary judgment in favor of a Defendant on the grounds that there was a genuine issue of material fact as to whether or not the Plaintiff sustained serious injuries as a result of the accident in the case of Cadena v. Latch, 2013 Pa. Super. 266, No. 1891 MDA 2012 (Pa. Super. Oct. 4, 2013)(Gantman, Allen, Mundy, JJ) (Opinion by Mundy, J.).  

In this matter, the Plaintiff alleged that she was diagnosed with eight (8) injuries which her treating doctor related to the subject motor vehicle accident.  The records were also found by the Superior Court to be replete with testimony by the Plaintiff with regards to how her daily life was altered due to her pain and limitations.  Although the Plaintiff had stopped medical treatment in 2008, she offered testimony that she, as of that time, did not have the financial means to continue to treat. 

The Pennsylvania Superior Court noted that the Motor Vehicle Code defines “serious injury” as “[a] personal injury resulting in death, serious impairment of body function, or permanent serious disfigurement.”   The court reiterated that the test focuses not in the injuries themselves, but on how the injuries affect a particular body function. 

It appears that the defense in this matter primarily relied upon the fact that not only had the appellant had ceased medical treatment but that she was declared to have been recovered from all injuries by 2011, which was about 3 ½ years after the subject accident.  

In reversing the entry of summary judgment on the limited tort question, the Pennsylvania Superior Court emphasized that an impairment need not be permanent in order to be serious.   The Court noted that, where questions of fact and testimony remain, the question of whether a Plaintiff suffered a serious injury should be left for the jury.  As such, the trial court’s entry of summary judgment in favor of the Defendant was reversed.  

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

Tuesday, November 5, 2013

Pennsylvania Superior Court's Latest Take on Insurance Bad Faith Statute (42 Pa.C.S.A. Section 8731)

In its recent November 1, 2013 Opinion and Order in the case of Grossi v. Travelers Personal Insurance Company, 2013 Pa. Super. 284, No. 769 WDA 2012 (Pa. Super. Nov. 1, 2013 Bowes, Donohue, and Mundy, JJ) (Opinion by Mundy, J.), the Pennsylvania Superior Court affirmed in part, vacated in part, and remanded the case for entry of a corrected verdict in accordance with its Opinion in this bad faith litigation.  

Among the issues reviewed by the Pennsylvania Superior Court were whether or not the Plaintiffs have met their burden of proving by clear and convincing evidence that Travelers had allegedly acted in bad faith under 42 Pa. C.S.A. §8371 in its handling of this underinsured motorist claim.  The Court also addressed the validity of the entry of punitive damages against the carrier as well as the award of expert witness fees and costs of litigation under the bad faith statute.  

In this Grossi opinion, the Superior Court again reviewed the principals of law pertaining to its review of a verdict in an insurance bad faith claim under 42 Pa. C.S.A. §8371.   As such, this case represents this appellate court’s latest pronouncement of the standard of review for a recovery in an insurance bad faith claim.  

Applying the applicable standard of review to the case before it, the Pennsylvania Superior Court agreed with the trial court’s findings that the carrier’s establishment of a reserved amount of only $1,000.00 under the case presented was without any basis, thereby supporting the bad faith claims presented.  

The Superior Court also faulted the carrier in its rejection of the Claimant’s loss of future earnings claim given the record presented.   The carrier is also faulted for delaying or postponing an independent medical evaluation of the Claimant while the carrier monitored the Claimant’s third party claims.   It is also noted that the carrier never secured a report from an economist even after noting a need to do so.  

Overall, the Superior Court noted that, while the length of time the carrier took to investigate the claims presented was not per se bad faith, it was indeed a factor to be considered by the trial court in considering all of the circumstances of the bad faith claim.   The Superior Court found that the factors reviewed by the trial court supported the trial court’s conclusion that the Plaintiff had met their burden of proof of bad faith.  

The court also found that the punitive damages award under 42 Pa. C.S.A. §8371 was not only permissible but was within the discretion of the trial court upon a showing of bad faith.  The Superior Court found that the trial court’s entry of punitive damages award was sufficiently supported by the record and the trial court’s findings of fact.  No abusive discretion of constitutional impropriety was found in this regard.   In this matter, the award of punitive damages by the trial court approximated to a ratio of punitive damages to compensatory damages of 4:1 or 5:1, depending upon the measure of compensatory damages utilized.  

With regard to the final issue raised by the defendant carrier, the Superior Court agreed with the carrier’s position that expert witness fees should not have been awarded under the allowance of an award for "costs" under the bad faith statute.  

With regards to the issues raised by the Plaintiff on appeal, the Pennsylvania Superior Court in Grossi also revisited the issue previously raised in the case of Marlette v. State Farm [click on case name to go to that Tort Talk post and LINK to Marlette decision], as to whether the trial court erred or abused it discretion in calculating interest, or delay damages, based upon the $300,000 underlying UIM policy limits, rather than the $4 million dollar arbitration award entered.  
The Superior Court followed the Marlette decision in this regard and determined that, in accordance with Marlette, the Plaintiff’s recovery of delay damages under Pa. R.C.P.  238 is limited to the amount of the legally recoverable molded verdict as reflected by the amount insurance policy limits.  

The Superior Court also noted that, under the language of the bad faith statute, 42 Pa. C.S.A. §8371, a trial court is permitted (“may”) calculate interest upon an entire verdict as opposed to only the policy limits, but if it is not required to do so.  Ultimately, the Superior Court found that the Plaintiff had not demonstrated that the trial court’s award of interest in this matter on only the $300,000.00 UIM coverage limits constituted an abusive discretion under the case presented.    

Anyone wishing to review of copy of this decision by the Pennsylvania Superior Court in the case of Grossi v. Travelers may click on this LINK. 

I send thanks to Stuart J. Setcavage of Setcavage Consultant & Mediation in Pittsburgh, Pennsylvania for forwarding this interesting case to my attention.  

Facebook Discovery Decision Out of Washington County

In her Opinion and Order from back on March 26, 2013 in the case of Prescott v. Willis, No. 2012-Civil-2207 (C.P. Wash. Co. Mar. 3, 2013 O’Dell-Seneca, P.J.), President Judge Debbie O’Dell-Seneca addressed a Defendant’s Motion to Compel a Plaintiff to produce her Facebook username and password in a motor vehicle accident case.  

After reviewing the pertinent law available at that time, the court granted the motion in part and denied it in part.  

In the Opinion, the court noted that, in support of its motion, the Defendant supplied five (5) photographs from the public portion of the Plaintiff’s profile showing the Plaintiff engaging in activities which were inconsistent with the injuries alleged.   The Defendants asserted that the private portions of the Facebook account were likely to contain other such photographs. 

The Court ruled that there was no privileged protecting the Plaintiff from the production of such photos and, in the case presented, the photos in the private area of the Plaintiff’s Facebook profile were deemed to be “reasonably calculated” to produce relevant evidence based upon what was revealed in the public portions of the profile.  

As such, the Plaintiffs were ordered to produce their username and password and the Defendants were granted seven (7) days to review the private pages of that Facebook page but were strictly prohibited from adding, creating, removing, modifying, or sending any contents from that page.  

The court also ruled that, after seven (7) days, the Plaintiff was permitted to change her username and password to preclude further access.  

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

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

Monday, November 4, 2013

Pennsylvania Supreme Court Revisits Notice Requirement in UM Cases

In an uninsured motorist benefits case that has gone all the way up the appellate ladder, back down again, and, now, all the way back up, the Pennsylvania Supreme Court in the matter of Vanderhoff v. Harleysville, No. 98 MAP 2012 (Pa. October 30, 2013)(Opinion by Eakin, J.), the court addressed the following issues:

(1) What constitutes "actual prejudice" to relieve and insurance company of its obligation to pay insurance benefits to an insured?

(2) Should "actual prejudice" involve proof by an insurance carrier that it suffered a real material impairment of its ability to investigation and defend an uninsured claim?

(3) What constitutes a reasonable basis for a trial court finding that prejudice exists in a late report of a phantom vehicle?

In its majority Opinion, the Court essentially held that all three issues are really part of the same test.  

The Pennsylvania Supreme Court in Vanderhoff ruled that these types of matters "must be addressed on a case-by-case basis wherein the court balances the extent and success of the insurer's investigation with the insured's reasons for the delay.

The Court noted that the Legislature mandated a 30-day notice requirement for a reason. It is reasonable that insureds must alert the insurer of the subject accident within a month's time.

The Court went on to rule that while an insurer will not be permitted to deny coverage absent prejudice caused by an insured's delay in notice, showing such prejudice does not require proof of what the insurer would have found had timely notice been provided.

While the insurer is always obligated to investigate the case such as it can, where an insured's delay results in an inability to thoroughly investigate the claim and thereby uncover relevant facts, prejudice is established. Handling these cases in this manner promotes prompt notice and advances MVFRL goals while encouraging insurers to investigate phantom vehicle claims.

Accordingly, the Superior Court decision was affirmed.  Anyone wishing to review this Opinion may click this LINK.  Justice Baer's concurring opinion can be viewed HERE.

I send thanks Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention (along with his excellent synopsis of the case), and I send thanks to Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Friday, November 1, 2013


Do you need CLE credits before the end of the year?

Below is a general listing of upcoming CLE seminars open to all being sponsored in whole or in part by the Pennsylvania Defense Institute across the Commonwealth of Pennsylvania.

The PDI will hold a CLE seminar in Philadelphia on November 11, 2013 at the DoubleTree Hotel from 10:30 am to 1:30 pm.

The NEPATLA and the PDI have announced a CLE program and Holiday Happy Hour set to take place on November 13, 2013 at the Mohegan Sun Casino at Pocono Downs in Wilkes-Barre. 

The PDI's final program is in Pittsburgh on December 5, 2013 with more details to follow.

 Contact David Cole, Executive Director of the PDI for information on the cost to attend, the agenda, and to register:
P: 800-734-0737

Note:  For full disclosure purposes, I note that I am a member of both the PDI and the NEPATLA.  Also, neither I nor Tort Talk are in any way involved with these events.  Rather, I have simply posted this information in response to a request from the PDI to advertise the events here on Tort Talk.  In exchange for the advertisements, I have requested a waiver of the attendance fee(s) that would be assessed to me should I attend any of these events.