Monday, December 30, 2013

Happy New Year!










Friday, December 27, 2013


The below article of mine was originally published in the December 17, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission by American Law Media.  All rights reserved.

Courts Apply Same Old Rules to New Issues in 2013

Daniel E. Cummins
Pennsylvania Law Weekly
December 17, 2013
In 2013, many novel civil litigation issues came before the trial and appellate courts of Pennsylvania for decision. Some of these issues were resolved and some were left open for another day, but one key trend that emerged was courts wrestling with technological advances like social media, cellphones and GPS devices in the legal spectrum. In the end, it made for another interesting year of Pennsylvania jurisprudence.

Post-Koken Auto Litigation

In the case of Stepanovich v. McGraw and State Farm Insurance, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013), the state Superior Court found no due process violation by the trial court's decision to allow the post-Koken trial involving a tortfeasor defendant and an underinsured motorist carrier defendant to proceed before a jury without any mention of the UIM carrier as a party defendant.

The Stepanovich court ruled that even accepting for purposes of argument that the plaintiff may have been entitled to inform the jury of State Farm's participation in the trial as a defendant, the plaintiff was still not entitled to a new trial, as there was no legal support for a finding of a due process violation that was per se prejudicial.

Another 2013 decision that came down the other way is U.S. District Judge James M. Munley of the Middle District of Pennsylvania's decision in the case of Noone v. Progressive Direct Insurance, No. 3:12cv1675 (M.D.Pa. May 28, 2013). In Noone, Munley ruled that all insurance information should be allowed in a post-Koken case so as to have a jury fully informed on all of the liability and damages issues presented.

Facebook Discovery

In 2013, Lackawanna County Court of Common Pleas Judge Terrence R. Nealon weighed in on the issue of Facebook discovery in the matter of Brogan v. Rosenn, Jenkins & Greenwald, PICS Case No. 13-2734 (C.P. Lackawanna County 2013).

In Brogan, the plaintiff was seeking the Facebook log-in username and password of a witness. Nealon essentially held that social media discovery requests must be properly framed so that only relevant and nonprivileged information is sought and produced. Nealon more specifically ruled that in order to obtain discovery of private information on social media sites, the seeker of such information must, at the very least, show that the information sought is relevant to the case at hand.

According to Brogan, one way to meet this requirement is by showing that the publicly available information on the website at issue reveals information pertinent to the matter and arguably calls the claims or defenses at issue in the suit into question.

The court in Brogan found that the plaintiffs had not met this test. Consequently, the demand for the disclosure of the Facebook username and password was found to be overly intrusive and would cause unreasonable embarrassment. As such, the motion to compel was denied.

Similarly, in the 2013 case of Hoy v. Holmes, PICS Case No. 13-0448, 107 Sch.L.R. 19 (C.P. Schuylkill Co. 2013), Schuylkill County Court of Common Pleas Judge John E. Domalakes denied a defendant's motion to compel access to a plaintiff's social media sites, including Facebook. The Hoy case involved a motor-vehicle accident case. The court denied the motion to compel after finding that there was no factual predicate shown that relevant information might be discovered on the private pages of the plaintiff's Facebook page.

Another interesting Facebook discovery case came out of Lancaster County this year in the form of Perrone v. Lancaster Regional Medical Center, No. CI -11-14933 (C.P. Lanc. Co. 2013). In Perrone, Lancaster County Court of Common Pleas Judge James P. Cullen handled a Facebook discovery dispute by ordering the parties to hire a neutral forensic computer expert to determine whether photos and videos on the plaintiff's Facebook page were posted before or after a slip-and-fall incident in order to determine whether or not such information was discoverable.

It is generally noted that the above cases are really only examples of the trial courts essentially applying the same old rules of discovery to a new set of circumstances. In other words, the courts have basically been concluding that all of these new forms of digital technology should be evaluated under the same long-standing rules applicable to more conventional forms of paper discovery and evidence. As Nealon noted in his opinion in Brogan, "To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle."

Cellphone Use in Auto Cases

The novel issue of whether punitive damages claims are appropriate in a case containing allegations that a motor-vehicle accident was caused by a defendant distracted by the use of a mobile device continued to create a split of authority in 2013.

In the case of Platukis v. Pocono Segway Tours, PICS Case No. 13-0967 (C.P. Monroe Co. April 8, 2013), Monroe County Court of Common Pleas Judge Arthur L. Zulick ruled that allegations in a complaint simply asserting that a defendant was using a cellphone while operating a motor vehicle, which in this case was a two-wheeled stand-up Segway device, did not give rise to the state of mind of an evil motive, or outrageous conduct, necessary to find that the defendant acted recklessly. As such, Zulick granted the defendant's preliminary objections and dismissed the punitive damages claims asserted.

In contrast, over in the federal court, a punitive damages claim was permitted in this context. In his August decision in the case of Scott v. Burke, 2013 U.S. Dist. Lexis 123432 (W.D. Pa. 2013), U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania granted a plaintiff's motion to amend the complaint to add a punitive damages claim based upon a defendant tractor-trailer driver's alleged cellphone use at the time of a fatal motor-vehicle accident.

In the case of Rockwell v. Knott, PICS Case No. 13-2468 (C.P. Lacka. Co. Aug. 13, 2013), Nealon addressed an issue of first impression of whether a punitive damages claim may be pursued in an auto accident case against a defendant driver on the basis that the defendant was distracted by looking down at a global position system (GPS) on a smartphone at the time of the accident. While Nealon generally noted in his opinion that looking away from the road at a GPS on a smartphone to the point of distraction could arguably amount to reckless conduct to support a punitive damages claim, the record before the court in this particular matter failed to contain any evidence to support such a claim.

As such, the defendant's motion for partial summary judgment on the punitive damages claim was granted by the court.

Premises Liability

Over the past year, several trial court judges have noted the continuing viability of the assumption of risk doctrine in premises liability cases.

In his decision in the case of Burley v. University City Science Center, PICS Case No. 13-1424 (C.P. Phila. 2013), Philadelphia Court of Common Pleas Judge Allen L. Tereshko ruled that the plaintiff assumed the risk of an obvious danger when she knowingly walked across an icy patch in a parking garage. Tereshko stated the obvious in his opinion by noting that common knowledge dictates that ice is slippery and that to walk over an icy patch is to risk falling and suffering injuries.

Summary judgment was also granted in a Lackawanna County assumption-of-the-risk case, Rovinsky v. Lourdesmont, No. 2011-CV-2304 (C.P. Lacka. 2013). In this case, Senior Judge Peter O'Brien reviewed the doctrine in the context of a slip-and-fall case that arose out of a cafeteria food fight.

Relying primarily on the assumption-of-risk case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), O'Brien granted summary judgment in favor of the defendant in Rovinsky after emphasizing that the plaintiff's testimony established that she was aware of the danger and nevertheless chose to voluntarily proceed through the danger.

Bad Faith

Another interesting issue over the past year or so has been whether or not expert witnesses are required in order to prove or defend against bad-faith allegations asserted against an insurance company.

In his May 31 decision in Schifino v. Geico, PICS Case No. 13-1330 (W.D. Pa. May 31, 2013), U.S. District Judge Terrence F. McVerry of the Western District of Pennsylvania granted the motions in limine filed by both parties in this regard and precluded the use of expert witnesses in an insurance bad-faith lawsuit as being unnecessary.

In Schifino, McVerry relied upon the case of Smith v. Allstate Insurance, 912 F.Supp.2d 242 (W.D. Pa. 2012), in holding that issues of alleged insurance bad faith reviewed by the expert witnesses were neither complex nor scientific, and, therefore, did not require specialized skill or knowledge by a jury to understand. Accordingly, such expert testimony was found to be unnecessary and was thereby precluded.

Looking to 2014

As is typically the case with the law, the resolution of some issues in 2013 created other issues to be reviewed in the future. Accordingly, it is anticipated that many of the same or similar issues that kept the courts and civil litigators busy this past year will continue into the next. 

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

Monday, December 23, 2013

Attorney's Fees Analysis in Civil Rights Matters Reaffirmed by Third Circuit

In its recent decision in the case of Dee v. Borough of Dunmore, 13-1596, 2013 WL 6234597 (3d Cir. Dec. 3, 2013), the Third Circuit Court of Appeals reaffirmed the analysis required to determine the appropriate amount of attorney's fees counsel for a "prevailing party" is entitled to in a Section 1983 Civil Rights Action.

The Third Circuit initially noted that it had plenary review powers over the question of law of whether the District Court applied the proper standards in calculating reasonable attorney's fees.

Citing its own previous decision in the case of Washington v. Phila. County Ct. of Common Pleas, 89 F.3d 1031, 1034–35 (3d Cir.1996), the Third Circuit Court of Appeals noted that it is required to review the attorney's marketplace billing rate for clear error, along with the reasonableness of the District Court's award of fees for abuse of discretion.

The Dee Court noted that attorney fee awards in a 42 U.S.C. Section 1983 civil rights action, as allowed by Section 1988, "are based on the lodestar, which is the product of the attorney's hours and rate. There is a strong presumption that the lodestar is a reasonable fee."

However, the appellate court noted that "a court may adjust this figure upward or downward when the lodestar is unreasonable," citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).  It was emphasized that, "[u]nder the Hensley framework, the petitioner's 'results obtained' in the action, which is the level of the prevailing party's success, is a “crucial” factor. Id. at 430, 434.

In the Dee case, the Plaintiff’s had attorney asserted that the reasonable prevailing hourly rate for an attorney in her region of practice, i.e., Northeastern Pennsylvania, was $300 per hour.  The defense cited to prior local court decisions noting a reasonable rate of $215-$225 per hour. 

In Dee, the Third Circuit Court of Appeals upheld Federal Middle District Judge A. Richard Caputo’s finding that an hourly rate of $250 per hour was reasonable. 

The Third Circuit also approved the trial courts downward molding of the overall attorney’s fee figure based upon the limited results secured by the prevailing party in the matter as compared to all of the claims presented.

Anyone wishing to review a copy of the Third Circuit’s decision in Dee, may click this LINK.

Friday, December 20, 2013


Best wishes for a Happy Holiday Season to you.
Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA

Tuesday, December 17, 2013

ALM and Martindale-Hubbell Honor

Proud to note that American Lawyer Media and Martindale-Hubbell™, have advised that I have been selected to be included in their publication of their February issue of The American Lawyer & Corporate Counsel magazine as a ‘2014 Top Rated Lawyer in Insurance Law.’

Superior Court Reaffirms Frye Standard for Expert Testimony in Two Recent Decisions

The Frye standard of review of novel expert testimony was reaffirmed by the Pennsylvania Superior Court in the following two recent decisions.

Snizavich v. Rohm and Haas Co., 2013 Pa.Super. 315, No. 1383 - EDA - 2012 (Pa.Super. Dec. 6, 2010 Lazarus, Colville, J.J.)(Opinion by Lazarus).
In a December 6, 2013 decision, the Pennsylvania Superior Court reaffirmed the standard in the context of a Plaintiff's expert medical witness on causation in the brain cancer case of Snizavich v. Rohm and Haas Co., 2013 Pa.Super. 315, No. 1383 - EDA - 2012 (Pa.Super. Dec. 6, 2010 Lazarus, Colville, J.J.)(Opinion by Lazarus).

The Superior Court affirmed the trial court's granting of the Defendant's Frye motion for the preclusion of the Plaintiff's expert. The appellate court noted that where an expert, even a medical doctor, offers an opinion that does not rely upon scientific authority, the opinion amounts to no more than a personal belief or lay opinion of the expert that should not be allowed.

Since the precluded expert testimony was from the only expert on causation offered by the Plaintiff, the court also affirmed the entry of judgment in favor of the defense.

Anyone wishing to review this Opinion may click this LINK.

Jacoby v. Rite Aid Corporation, No. 1508 - EDA - 2012 (Pa.Super. Dec. 9, 2013 Lazarus, Colville, J.J.)(Opinion by Lazarus).

In its December 9, 2013 "Non-precedential" Opinion issued in the case of Jacoby v. Rite Aid Corporation, No. 1508 - EDA - 2012 (Pa.Super. Dec. 9, 2013 Lazarus, Colville, J.J.)(Opinion by Lazarus), the court reaffirmed the application of the Frye standard in Pennsylvania state courts for the admissibility of novel expert testimony in the context of a products liability case.

More specifically, Jacoby involved a claim by the plaintiff of the zinc-induced copper deficiency causing an illness/injury through the use of a dental adhesive product.

The court applied the Frye standard and provided a thorough analysis of the required review by a trial court of the methodology used by experts to reach conclusions on matters involving novel scientific evidence.

In the end, the Superior Court in Jacoby affirmed and found that the trial court did not abuse its discretion in holding that the Plaintiff's experts lacked a sound foundation from which to extrapolate a conclusion that the denture cream at issue caused the Plaintiff's neurological injury.

Anyone wishing to review this unpublished and Non-precedential Opinion by the Superior Court may click this LINK.

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh, PA office of Thomas, Thomas & Hafer for bringing these cases to my attention.

Monday, December 16, 2013

Interesting Post-Koken UIM/Bad Faith Bench Trial Verdict Handed Down by Western Federal District Court of PA

Judge Terrence F. McVerry of the Federal Western District Court of Pennsylvania handed down an interesting Bench Trial Verdict by way of an Opinion in the Post-Koken UIM/Bad Faith case of Schifino v. GEICO, 2:11-cv-1094 (W.D. Pa. Dec. 13, 2013 McVerry, J.)

Tort Talkers may recall the Schifino case from prior noteworthy opinions in which the bad faith claim was severed from the UIM claim as well as another decision in which the court held that bad faith expert witnesses were not required in this context.

In this most recent decision, the court entered an award favor of the Plaintiff on the UIM claim but a defense verdict in the bad faith portion of the claim.

Anyone wishing to review a copy of this Opinion in Schifino may click HERE.

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

Friday, December 13, 2013

Article by Scranton Attorney Michael J. Foley Cited in Pennsylvania Supreme Court Workers' Compensation Decision

In the recent Pennsylvania Supreme Court decision in the workers' compensation case of Phoenixville Hospital v. W.C.A.B. (Shoap), ___ A.3d ___, 2013 WL 6132096 (Pa. Nov. 21, 2013), the court addressed the issue of whether jobs should be considered to be available to an employee for purposes of granting a modification of the employee’s compensation benefits pursuant to Section 306(b) when the employee applied to each position listed in a labor market survey and received no offers of employment.

The Pennsylvania Supreme Court ultimately ruled that “[a] more reasonable reading of Section 306(b), however, and one that comports with a commonsense reading of “substantial gainful employment that exists,” as well as the Act's humanitarian purposes,14 is that the proof required to reduce or suspend a claimant's benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings.”

Michael J. Foley, Esq.
Foley Law Firm
Notably, in its decision the Supreme Court cited several times to an article by local Scranton Plaintiff’s Attorney Michael J. Foley of the Foley Law Firm entitled Funded Employment and Vocational Rehabilitation Shams Affecting Injured Workers, 2 Ann.2000 ATLA–CLE 2845 (2000).

Now that's pretty impressive in my book.

Here is a LINK  to the Supreme Court's Opinion in Phoenixville Hospital.

Wednesday, December 11, 2013

The Venue Quality vs. Quantity Test Reviewed by Judge Minora of Lackawanna County

In his recent decision in the case of Oney v. New Milford Market, No. 11- CV-2718 (C.P. Lacka. Co. Oct. 15, 2013, Minora, J.), Judge Carmen D. Minora, of the Lackawanna County Court of Common Pleas granted a Defendant’s Preliminary Objections to venue in a slip and fall case.  

According to the Opinion, the Plaintiffs sued the owners of a grocery store located in Susquehanna County, Pennsylvania.   The lawsuit, however, was filed against the Defendants in Lackawanna County.

The Defendants filed Preliminary Objections on the issue of venue and sought removal of the case to Susquehanna County under allegations that they did not engage in any business or corporate activities in Lackawanna County.   The Defendants further asserted that none of the parties resided in Lackawanna County at the time of the accident or the filing of the Complaint.  

The court noted that this matter involves a joint liability personal injury case with business and individual owner Defendants.   Judge Minora stated that, in such joint liability cases, venue lies in any county in which any Defendants may be sued.   The fact that venue is proper in one county would not negate proper venue in a different county.  

In reviewing the issues presented, after finding that the Defendants’ registered office or principal place of business was not in Lackawanna County, the court applied a “quality-quantity” analysis on the issue of whether or not the Defendants regularly conducted business in Lackawanna County.

Under this test, the “quality” factor required the Plaintiffs to show the performance of acts by the Defendants that directly furthered or were essential to the Defendants’ business objectives and not merely incidental to those objectives.  

Judge Carmen D. Minora
Lackawanna County
In his Opinion, Judge Minora stated that advertising, soliciting business, and purchasing supplies were insufficient contacts.  

Under the “quantity” factor, the court measured what proportion of the Defendants’ continuously and habitual dealings were within Lackawanna County.  

After applying the facts of the case to the mandated test, the court concluded that venue in Lackawanna County was not proper as none of the parties lived in the county, and the Defendants’ sole principal place of business was in Susquehanna County along with its registered business address.   The court additionally found that the Defendants’ business contacts were neither qualitatively nor quantitatively sufficient to establish venue in Lackawanna County.  

As such, the court ultimately concluded that the Defendants have met their burden of proof by pleading sufficient facts that provided an adequate legal basis to sustain their Preliminary Objections and to require the Lackawanna County Court of Common Pleas to order the removal of the case to Susquehanna County.

Anyone desiring a copy of this Opinion may click this LINK 

For other Tort Talk summaries on other cases applying the quality/quantity venue test, please click HERE and scroll down the list to search for decisions hitting on that topic.

Monday, December 9, 2013

Latest Appellate Decision on Trivial Defect Doctrine in Trip and Fall Cases

In its November 20, 2013 decision in the case of Shaw v. Thomas Jefferson University and City of Philadelphia, No. 619 C.D. 2013 (Pa. Cmwlth. Nov. 20, 2013 Brobson, McCullough, and Friedman, J.J.) (Opinion by McCullough, J.), the Commonwealth Court of Pennsylvania reversed the City of Philadelphia’s Summary Judgment in a sidewalk trip and fall over a 2 to 2 ½ inch elevation.  

The court noted that the separate University Defendant had previously filed a Motion for Summary Judgment under the Trivial Defect Doctrine and a defense of a lack of actual constructive notice.  That previous Motion for Summary Judgment had been granted in favor of the University.

The City of Philadelphia followed up with its Motion for Summary Judgment raising the same defenses as the University and also arguing that its motion should be granted under the coordinate jurisdiction rule because the City was only secondarily liable and all claims against the University had been dismissed. 

The City additionally asserted that the Plaintiff has failed to show any evidence of actual constructive notice of the sidewalk defect on behalf of the City.  

The trial court granted the City’s Motion for Summary Judgment and the case was appealed to the Commonwealth Court.  

In its Opinion, the Pennsylvania Commonwealth Court reviewed the Trivial Defect Doctrine under which it has been held that a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing such a small defect to exist.  The Shaw court stated that what constitutes a sufficient defect to hold a property owner liable must be reviewed on a case-by-case basis.  

In reviewing the record before it, the Commonwealth Court agreed with the Plaintiff’s argument that summary judgment should not have been granted because there is no bright-line rule for a court to use in determining whether a sidewalk defect is obviously trivial.   While the court recognized the continuing validity of the Trivial Defect Doctrine, it found genuine issues of material fact to allow this case to proceed on to a jury trial.  

Accordingly, the Commonwealth Court ruled that the granting of summary judgment in favor of the University was in error and, as such, so was the granting of summary judgment in favor of the City Defendant. 

The Commonwealth Court further stated that, since they had finalized the issue before them by way of its decision on the Trivial Defect Doctrine, it did not reach the issues raised with respect to the actual or constructive notice defense.

Ultimately, the case was remanded back to the trial court for further proceedings consistent with the Opinion.  

Anyone wishing to review the Shaw case may click HERE.

Wednesday, December 4, 2013

ARTICLE: Superior Court Leaves Big Post-Koken Questions Unanswered

The below article of mine appeared in the November 19, 2013 edition of the Pennsylvania Law Weekly and his republished here with permission from the publisher, American Law Media:

Superior Court Leaves Big Post-Koken Question Unanswered

Pennsylvania Law Weekly
November 19, 2011
In previous articles, I have referred to the new post-Koken era of Pennsylvania motor vehicle accident litigation as "Hurricane Koken" given its stormy and meandering path. This new era of automobile accident law has been overrun with a wide variety of important novel issues that have created splits of authority at the trial court level all across the state.

To date, the issues have been compounded by the lack of opportunities for the appellate courts to weigh in and offer much desired guidance and predictability.

Now, post-Koken cases are finally are climbing up the appellate ladder. On Oct. 15, the Superior Court handed down its much anticipated decision in the automobile accident case of Stepanovich v. McGraw and State Farm, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.).

In Stepanovich, the Pennsylvania Superior Court finally had a chance to weigh in on a post-Koken issue of importance: whether or not it was a denial of due process to a plaintiff in a post-Koken case not to identify the underinsured motorist carrier as a party defendant to the jury and yet allow that defendant's attorney to participate in the trial along with the third-party tortfeasor's defense attorney.

While the Stepanovich decision serves to answer some novel post-Koken questions, it unfortunately leaves hanging open the all-important question of how trial court judges should handle the issue of references to "insurance" at trial.

Double-Team Defense

The Superior Court in Stepanovich held that there was no violation of the plaintiff's due process rights by the trial court's decision to allow the tortfeasor's counsel and the UIM carrier's counsel to "double-team" the plaintiff in the defense of a post-Koken jury trial.

More specifically, at the trial of this third-party UIM matter, the case was identified to the jury as Stepanovich v. McGraw—without reference to State Farm as a UIM carrier defendant. Nevertheless, the defense counsel for the third-party tortfeasor and the attorney for the defendant UIM carrier were both permitted to participate in all aspects of the trial from jury selection to closing arguments.

The trial court allowed both defense attorneys to participate as long as there was no duplication in the questioning of the witnesses. It is also important to note that, according to the opinion, the plaintiff elected to proceed in this fashion rather than agreeing to a bifurcation of the claims into two separate trials.

The jury returned a 10-2 defense verdict in favor of the tortfeasor defendant, McGraw, after a finding that the tortfeasor was not negligent. The verdict was molded to reflect a verdict in State Farm's favor as the UIM carrier defendant.

At the post-trial motions stage, Allegheny County Court of Common Pleas Judge Timothy P. O'Reilly, upon further reflection of the matter, took the rare step of overturning his own decision. O'Reilly granted the plaintiff a new trial after finding that the failure to identify State Farm as a party defendant while allowing two defense counsel to participate in the matter, in hindsight, had resulted in a violation of the plaintiff's due process rights to a fair trial.

As noted, on appeal, the Superior Court in Stepanovich reversed the trial court's decision allowing for a new trial. The case was remanded with the direction that judgment be entered in favor of all defendants.

Reliance Upon Pa.R.E. 411 Misplaced

In its appellate opinion, the Stepanovich court noted that references to Pa.R.E. 411's prohibition against the mentioning of insurance at trial in this case was misplaced. The Superior Court stated that the rule specifically refers only to the preclusion of any mentioning of the available "liability" insurance, and does not reference UIM insurance as was at issue in this case. Accordingly, the court noted that a course of action identifying State Farm as the UIM carrier would not "run afoul" of Rule 411.

Notably, the Superior Court was not presented with, or did not address, the long-standing Pennsylvania common-law prohibition against the mentioning of any forms of insurance at a civil trial. It has been repeatedly held that the adoption of Rule 411 did not serve to affect the pre-existing and still valid rule of law generally prohibiting the mentioning of insurance in any regard during civil trials, including at motor vehicle accident trials, as in Henery v. Shadle, 661 A.2d 439 (Pa.Super. 1995).

Under this common-law prohibition, references to other forms of insurance at trial, including first-party insurance, have been precluded as being prejudicial to the defendant since such references may distract the jury from the central issues of liability and damages to be decided based upon the evidence presented in the courtroom, as in Henery; Price v. Guy, 735 A.2d 668, 671-72 (Pa. 1999); DeVita v. Durst, 167 Pa.Cmwlth. 105, 647 A.2d 636 (1994); Bonavitacola v. Cluver, 619 A.2d 1363, 1370 (Pa.Super. 1993); and Greenwood v. Hildebrand, 515 A.2d 963, 968 (Pa.Super. 1986).

This common-law principle that the mention or evidence of insurance is impermissible has been held to apply regardless of whether the proposed evidence concerns liability insurance coverage of a defendant or insurance coverage that may instead apply to a plaintiff, as in Bonavitacola and Greenwood.

Moreover, separate and apart from Rule 411's preclusion of any reference to liability insurance, under Rules 402 and 403, a defendant remains capable of arguing that evidence of insurance should be precluded given that any alleged probative value of evidence of insurance is outweighed by the danger of unfair prejudice or may confuse the jury, as in Nigra v. Walsh, 797 A.2d 353, 360 (Pa. Super. 2002).

Due Process Claim Rejected

The Superior Court in Stepanovich ultimately ruled that, even accepting for purposes of argument that the plaintiff may have been entitled to inform the jury of State Farm's participation in the trial, the plaintiff was still not entitled to a new trial, as neither the plaintiff nor the trial court provided any legal support for the finding of a due process violation in this regard was per se prejudicial.

Accordingly, it was held that the failure to identify State Farm as a defendant at trial, in and of itself, was not reversible error that would require the granting of a new trial.

In her concurring and dissenting opinion in Stepanovich, President Judge Kate Ford Elliott joined in the majority's reasoning that Rule 411's prohibition against the mentioning of liability insurance was inapplicable in this UIM context.

However, Ford Elliott reasoned that it was the trial court judge who was the one who sat through and witnessed the trial proceedings firsthand and who had thereby determined that the double-teaming of the plaintiff by the defense counsel was prejudicial. Ford Elliott felt that this exercise of discretion by the trial court judge should not be disturbed and that his decision to allow for a new trial should have, therefore, been affirmed.

An Unclear Precedent

At least two things can be gleaned from a reading of the decision in Stepanovich.

First, Stepanovich clearly supports the proposition that Rule 411, which precludes the referencing of liability insurance at trial, cannot be relied upon to support an argument that references to UIM insurance should be precluded.

Secondly, the Stepanovich decision stands for the proposition that the failure to identify a UIM carrier as a defendant at trial is not, in and of itself, prejudicial or reversible error that would require the granting of a new trial. As such, the issue of how to handle the UIM carrier defendant at a post-Koken trial still, unfortunately, remains somewhat unclear.

The Other End of the Pendulum

A recent decision at the opposite end of the spectrum finding that essentially any and all insurance information should be allowed in a post-Koken case on all of the issues presented is U.S. District Judge James M. Munley for the Middle District of Pennsylvania's decision in the case of Noone v. Progressive Direct Insurance, PICS No. 13-1220 (M.D.Pa. May 28, 2013 Munley, J.).

In Noone, the court denied an insurance carrier's motion to preclude at trial evidence of (1) the amount of premiums paid by the plaintiff for the UIM policy, (2) the amount of the limits of UIM coverage available, (3) the amount of the tortfeasor's third-party liability coverage and (4) the amount received by the plaintiff from the tortfeasor.

Munley felt that such evidence was not "overly prejudicial" and, even as mere background information, should be allowed to assist the jury in evaluating the breach-of-contract claim against the UIM carrier defendant in a post-Koken trial.

More Appellate Guidance Desired

Thus, the central issue of a post-Koken trial—how to handle the mentioning or silence on insurance issues and parties—unfortunately remains somewhat unsettled. While the Stepanovich decision appears to answer some questions, it still leaves others open, and fails to provide the concrete guidance that the trial court bench and bar craves in the brave new world of Pennsylvania automobile law litigation. 

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

Summary Judgment Granted to Mall in Criminal Assault/Premises Liability Claim

In a recent Lackawanna County decision by Senior Judge Richard Saxton in the case of Young v. Prizm Asset Management Company, No. 2010-CV-8445 (C.P. Lacka. Co. Nov. 4, 2013, Saxton, J), the court granted summary judgment in favor of the Defendant landowner in a case in which the Plaintiff alleged personal injuries as a result of a criminal assault upon the Plaintiff in the parking garage of the Steamtown Mall in Scranton, Pennsylvania.  

According to the Opinion, the Plaintiff, was an employee of a store in the mall and was reporting to work during the afternoon of February 6, 2009, when she was attacked by an unknown, unidentified assailant, who is alleged to have attempted to steal her car.   The assault left the Plaintiff with various injuries for which she alleged that the Steamtown Mall was liable.

After the completion of discovery, the Steamtown Mall filed a Motion for Summary Judgment.   The mall argued that it did not breach any duty to the Plaintiff by allegedly failing to ensure her safety from an unanticipated criminal assault in an area open to the general public and that no act or omission on behalf of the mall was the cause of the Plaintiff’s injuries.  

In its ruling granting the motion, the court relied, in part, on the Restatement (Second) of Torts, §344 which covers liability for a possessor of land who holds a property open to the public for physical harm caused by intentional harmful acts of the third persons.   The court noted that, under the Restatement, a possessor of land is not an “insurer” of safety, but does have a duty to exercise “reasonable care” in affording protection for its business invitees.  

However, under the Restatement, the duty upon the landowner is only created where the landowner knows, or has reason to know that the acts of a third person are occurring or are about to occur which are likely to endanger the visitors safety.   Under this standard, the court was required to determine, as a matter of law, if the landowner knew or should have known that this criminal activity was likely.  

The Steamtown Mall asserted that the assault upon the Plaintiff was the first, and only, such assault of this kind to occur in its history.  

After reviewing the records before it, the Court ultimately ruled that there was no evidence to establish a genuine question of material fact as to any alleged duty owed or breached by the Steamtown Mall.  As such, the summary judgment motion was granted.  

Anyone wishing to review this Opinion in the Young case may click this LINK.. 

 I send thanks to Attorney Daniel D. Stofko, Esquire and David Heisler, Esquire of the Scranton, Pennsylvania office of the law firm of Cipriani and Werner, P.C. for bringing this case to my attention. 

Tuesday, December 3, 2013

Corrected LINK To "Bad-Faith Setup" Defense Decision

Several readers noted difficulty with yesterday's Link to the "Bad-Faith Setup" affirmative defense decision in the case of Shannon v. New York Central Ins. Co. by Judge Conaboy of the Federal Middle District Court of Pennsylvania.

I apologize for any inconvenience in that regard and note that I have fixed the link.  You can get to an online copy of the Shannon decision HERE. 

Monday, December 2, 2013

Insurance Company's "Bad-Faith Setup" Affirmative Defense Recognized by Pennsylvania Federal Court as a Valid Pleading

According to a December 2, 2013 article in The Legal Intelligencer by Zack Needles entitled "Judge Allows Insurer's 'Bad-Faith Setup' Defense," Federal Middle District Judge Richard P. Conaboy issued a ruling in the case of Shannon v. New York Central Mut. Ins. Co., No. 3:13-CV-1432 (M.D.Pa. Nov. 20, 2013 Conaboy, J.), allowing an insurance company defendant in a bad faith case to move beyond the pleadings stage with its affirmative defense alleging the attorneys for the plaintiff in the underlying automobile accident litigation purposefully orchestrated a “bad-faith setup” in an attempt to garner a punitive damages award.

According to the Opinion, the insurance company defendant "define[d] this 'bad faith set-up' as 'a quick settlement demand, followed by a quick closing of the window before important information is provided so that any subsequent limits offers by the insurer are bemoaned as too late.'”

This case came before the court, in part, by way of a motion by the Plaintiff to strike certain allegations from Paragraph 120 of the carrier's Answer and Affirmative Defenses in the bad faith action.

More specifically, New York Central Mutual Insurance Company asserted in Paragraph 120 of its Answer and Affirmative Defenses that plaintiffs counsel in the underlying matter had engaged in a “bad-faith setup” by “making unreasonably early and/or accelerated time limit settlement demands, the actual goal of which was to make compliance with such demands impossible” and by “refusing to accept offers of the policy limits, making settlement of the underlying claim impossible.”

As also pointed out by Mr. Needle in his article in The Legal Intelligencer, the insurance company also averred in Paragraph 120 that the plaintiffs counsel in the underlying car accident case made settlement demands beyond the maximum allowable contractual policy limit in an attempt to create “a pre-textual settlement demand which the defendant could not possibly satisfy consistent with its insuring obligation(s), and which the defendant was not required to satisfy, under the terms of the insuring agreement."

  The carrier also asserted as part of its "bad-faith setup" defense noted in Paragraph 120 of its Answer and Affirmative Defenses that plaintiffs counsel attempted to “take unfair advantage of claims representatives through the use of intimidation and threat” and failed to provide records, evidence and other documentation that would have allowed the insurer to evaluate the plaintiff’s injury. 

In their motion to strike Paragraph 120, the plaintiff argued that the allegations contained therein constituted “scandalous and defamatory allegations” and further argued that such assertions were “inappropriate defenses not contemplated by Federal Rule of Civil Procedure 8(c).”

In his Memorandum Opinion, Judge Conaboy rejected these contentions of the Plaintiff, noting that Rule 8(c) states that a party must set forth affirmative defenses along with “‘any other matter constituting an avoidance or affirmative defense.’”

In his ruling, Judge Conaboy stated, “The court finds that, for the most part, the allegations contained in Paragraph 120 would, if proven, assist in establishing an ‘avoidance’ under the terms of Rule 8 (c).” 

While the court allowed the "bad-faith setup" defense to proceed beyond the pleadings stage in this federal court case, the judge did also state, in a footnote, that the insurance company defendant failed to cite any Pennsylvania appellate case law confirming the existence of a “bad-faith setup” defense was valid or could ultimately prevail in the litigation.

Notably, the court did also strike portions of Paragraph 120 in which the insurance company defendant generally asserted, without specific citation to any statutes or criminal code provisions, that the underlying plaintiff's attorney's actions amounted to violations of unspecified state and federal criminal statutes.

Anyone wishing to review Judge Conaboy's Memorandum Opinion may click this LINK.

The actual Order is a separate document which I was unable to locate a link to online.

Judge Mannion of Middle District Precludes Bad Faith Expert As "Unnecessary"

In his recent Opinion in the case of Scott v. GEICO, No. 3:11-CV-1790 (M.D. Pa. Nov. 15, 2013 Mannion, J.), Judge Malachy E. Mannion of the United States District Court of the Middle District of Pennsylvania addressed a series of Motions In Limine filed the parties to preclude the introduction of various pieces of evidence at a bad faith trial.  

More specifically, GEICO filed Motions In Limine to preclude the Plaintiff’s bad faith expert witness from testifying, to preclude anticipated new testimony, to preclude evidence of alleged punitive damages, attorneys’ fees, costs, interest, and GEICO’s net worth, to preclude evidence of the arbitration award and post-arbitration memorandum, and to preclude evidence of claimed activity during and after the arbitration.  

The Plaintiff filed a Motion In Limine to preclude any reference to settlement negotiations that occurred after the arbitration award.   The court noted that the Defendant filed a Certificate of Concurrence with regard to the Plaintiff’s motion and, as such, the Plaintiff’s motion was granted.  

With respect to the issues raised by the defense, the court noted that, although the Plaintiff did not concur with the Defendant’s Motion to Preclude Claim Activity that occurred during and after the arbitration, the Plaintiff did not file a Brief in Opposition.  As such, that particular motion was deemed to be unopposed pursuant to the Middle District of Pennsylvania local rule 7.6 and was, therefore, granted.  

Judge Malachy E. Mannion
Federal Middle District Court
Significantly, with respect to the remaining Motions In Limine, Judge Mannion granted the Defendant’s Motion In Limine to preclude the Plaintiff’s bad faith expert witness.   

After reviewing the legal precedent on this issue from both the federal and state courts of Pennsylvania, including the recent cases of Smith v. Allstate Insurance Company and Schifino v. GEICO (both out of the Western District of Pennsylvania), Judge Mannion followed those cases and concluded that a bad faith expert was “unnecessary” as a “reasonable juror is capable of determining what the Defendant [insurance company] knew, how the claim was evaluated, and whether, in light of that information, the Defendant’s actions constituted bad faith.”  See Op. at 8-9.  

Also of note was the court's additional granting of the Defendant’s Motion In Limine to preclude the introduction into evidence of the arbitration award and post-arbitration memorandum.  However, the court denied that motion in part with respect to the introduction of the Defendant carrier's pain and suffering valuation of $219,000.00 contained in its arbitration memorandum as that information was relevant to the question of whether the carrier's previous, lower offers amounted to bad faith conduct.  

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

To review the Tort Talk post with Links to the Schifino case and the Smith v. Allstate case, click HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this Scott case to my attention.