Thursday, January 31, 2013

Superior Court Clarifies Applicability of Limited Tort Option

Tort Talkers may recall that, a while back, I reported on the McWeeney v. Estate of Strickler, No. 2009-SU-6582-01 (C.P. York Dec. 16, 2011 Thompson, J.), the Court granted a Defendant’s Motion for Summary Judgment and denied a Plaintiff’s Motion for Partial Summary Judgment in a Limited Tort case.

The trial court's decision has now been reversed on appeal by the Pennsylvania Superior Court.

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

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

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

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

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

On January 30, 2013, the Pennsylvania Superior Court reversed and held that under the above facts and under the plain and unambiguous terms of the MVFRL, the injured party Plaintiff was not a "named insured" nor an "insured" under Section 1705. Therefore, she was not bound by the limited tort selection and the trial court erroneously found that she was deemed bound by limited tort. 

The McWeeney case was decided by President Judge Stevens along with Judges Bender and Gantman.  The Opinion was written by President Judge Stevens.

The Superior Court held that, under Section 1705, "only one who is identified by name as an insured on the face of the policy is a 'named insured' for purposes of tort election."

The court also stated that to hold that the permissive driver is an "insured" bound by limited tort contravenes the intent of Section 1705 as Section 1705(f) of the MVFRL limits the class of people who are considered bound by the limited tort selection and the permissive driver was not found to be within that class.

Ultimately, the trial court order was vacated and the case remanded.

Anyone wishing to review the Pennsylvania Superior Court's decision in the case of McWeeney v. Estate of Strickler may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this case to my attention.
 
 
COMMENTARY:
 
The McWeeney case may prove to be another case that is useful in determining which tort option will apply to a Plaintiff where the Plaintiff is a named insured and/or an insured under policies containing conflicting tort options, i.e., one with the full tort option and one with the limited tort option.
 
Other cases to consider in this analysis of which tort option should apply include:
 
Hoffman v. Troncelitti, 839 A.2d 1013 (Pa. 2013);
 
Progressive Halcyon Ins. Co. v. Kennedy, 908 A.2d 914 (Pa.Super. 2006).
 
There may be other cases out there on this issue as well and further research is recommended.

Wednesday, January 30, 2013

Martindale Hubbell AV Rating Secured


I was recently notified that I have been granted an AV rating by Martindale-Hubbell, which is the highest rating possible in that peer review system for lawyers.

According to the Martindale Hubbell website "Peer Review Ratings attest to a lawyer's legal ability and professional ethics in specific Areas of Practice, and reflects the confidential opinions of members of the Bar and Judiciary. The Peer Review Rating is established by lawyers. The legal community respects the accuracy of ratings because it knows that its own members are directly involved in the process."

The "A "rating, reflects a finding of Excellent professional ability in the area where the lawyer practices, the lawyer's expertise, and other professional qualifications.

The "V" represents a finding of Very High Ethical Standards and denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.

I send thanks out to all of my colleagues who were generous enough to provide me with a good rating to enable me to secure this AV rating - Thank You Very Much - I really appreciate it.

Dan Cummins
Foley, Comerford & Cummins
Scranton, PA

Wednesday, January 23, 2013

Post-Trial Motions Addressed in Lackawanna County MVA Case

In his recent decision in the case of Holmes v. Brozonis, No. 2008-CV-5025 (C.P. Lacka. Co. Jan. 16, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various issues on post-trial motions after an automobile accident lawsuit trial in which the jury entered a verdict in the amount of $4,250.00.

In this Opinion, the court addressed the law regarding arguments pertaining to the alleged inadequacy of the verdict, with respect to defense counsel’s re-direct examination of the defense medical expert, and with respect to defense counsel’s re-direct examination of the defense medical expert, and regarding the Court’s instruction given to the jury in response to a question raised by the jury during the course of their deliberations.

With regards to the claim that the jury’s award was inadequate, Judge Nealon noted the shocks-the-conscience test and found that the case before him did not meet that test.

As to the allegations that the defense re-direct examination of the defense medical expert went well beyond the scope of the cross-examination, the Court reviewed the transcript and concluded that defense counsel’s questioning was not improper. Rather, the Court viewed the Plaintiff’s attorney’s cross-examination of the defense expert as having “opened the door” to the re-direct examination at issue.

In terms of the issues surrounding the jury’s question submitted to the court during the course of its deliberation, the Opinion noted that the jury had an inquiry regarding the Plaintiff’s medical expense exhibits.

Judge Nealon stated that he had first reviewed his proposed response to the jury’s inquiry with counsel and had received no objection from either counsel to that planned response.

In rejecting the Plaintiff’s post-trial motions on this issue, Judge Nealon provided a thorough review of the law pertaining to the Court’s broad discretion in formulating an appropriate response to an inquiry submitted by a jury during deliberations.

The Court not only found its response to the jury to be within the parameters of the law but also noted that any objection in this regard had been waived due to the failure of any party to state an objection during the course of the proceedings to the response provided by the court to the jury.

Overall, the Court denied the Plaintiff’s Motion for Post-Trial Relief.

Anyone desiring a copy of this Opinion in the case of Holmes v. Brozonis may contact me at dancummins@comcast.net.

Tuesday, January 22, 2013

Update on Gubbiotti Bankruptcy Decision

Tort talkers may recall that I recently reported on the case of Gubbiotti v. Santey, 880 M.D.A. 2011, 2012 W.L. 2389449 (Pa. Super. June 26, 2012), Petition for Allowance of Appeal Filed, 567 MAL 2012 (July 26, 2012) in which the Pennsylvania Superior Court held that 40 Pa. C.S.A. §117 does not allow the pursuit of a lawsuit to establish liability of a Defendant for the sole purpose of recovering from the Defendant’s carrier after that Defendant has received a discharge in bankruptcy.

I note that in a more recent Berks County Court of Common Pleas trial court decision in the case of MacCaull v. Livingston, 2012 W.L. 6777380 (C.P. Berks Co. Aug. 23, 2012 Schmehl, P.J.) Judge Jeffery L. Schmehl essentially limited the Gubbiotti decision to the facts presented before the Gubbiotti court and also noted that the Gubbiotti case did not “address 11 USC §524(e), which numerous courts have held does allow such a suit to go forward despite a bankruptcy discharge. See MacCaull, 2012 W.L. 6777380*1 fn.1 citing with “See, e.g.” signal First Fidelity Bank v. McAgeer, 985 F.2nd 114, 118 (3d Cir. 1993); Greene v. Welsh, 956 F.2d 30 (2d Cir. 1992); In Re Jet Florida Systems, Inc., 883 F.2d 970, 976 (11th Cir. 1989); In Re Gutches, 430 B.R. 342, 345-47 (E.D. Pa. 2009).

In his decision in the MacCaull case, Judge Schmehl denied a Defendant’s Motion to Amend their New Matter (presumably to add a defense of a discharge in bankruptcy). The court denied this motion without prejudice to the Defendant’s right to reassert a defense in a Motion for Post-Trial Relief, based upon the Defendant’s bankruptcy discharge.

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

Friday, January 18, 2013

Reserve Your Spot for the Tort Talk Expo 2013 CLE Seminar (April 18, 2013)

Registration is now open for the Tort Talk Expo 2013 CLE Seminar.  Seats are filling up quickly, so please register now.

This CLE seminar promises an update on the law with a Big 80s flavor in terms of videos and clips. 

The program has been approved by the Pennsylvania CLE Board for 2 Substantive Credits and 1 Ethics Credit.

The Tort Talk Expo 2013 is set to take place on April 18, 2013 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania from 12:30 pm to 4:30 pm.

There will be a post-seminar complimentary cocktail reception where attendees can continue to network and mingle with your colleagues.

Please consider reserving your spot now. See below for more details on the program and registration.



TORT TALK EXPO 2013 CLE SEMINAR




PRESENTED BY

THE TORT TALK BLOG

and



Daniel E. Cummins, Esquire


FOLEY, COMERFORD & CUMMINS



at the


MOHEGAN SUN CASINO at POCONO DOWNS



Thursday, April 18, 2013
 
12:30 p.m. to 4:30 p.m.



2 Substantive & 1 Ethics CLE Credits




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





CLE CREDITS - DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES



 


12:30 – 1:00 pm: REGISTRATION




1:00 – 2:30 pm: THE BIG 80s: AN UPDATE WITH A 1980s FLAVOR


--1:00 – 1:45 pm: THE TORT TALK AUTO LAW UPDATE

Presenter:

Daniel E. Cummins, Esq.
Foley, Comerford & Cummins


 

--1:45 – 2:30 pm: THE TORT TALK CIVIL LITIGATION UPDATE

Presenters:

Malcolm L. MacGregor, Esq.
Michael J. McDonald, Esq.

McDonald & MacGregor Law Firm



2:30 – 2:45 pm: BREAK



2:45 - 3:45 pm: DIAGNOSIS AND TREATMENT OF SHOULDER AND KNEE INJURIES

Presenter:

Dr. John Kline, Physiatrist
Northeastern Rehabilitation Associates



3:45 – 4:00 pm: BREAK




4:00 – 4:30 pm: A VIEW FROM THE BENCH: CANDOR WITH THE COURT AT SETTLEMENT CONFERENCES

Presenters:

Lackawanna County Judge Carmen D. Minora

Luzerne County Judge Michael T. Vough




COMPLIMENTARY COCKTAIL RECEPTION

TO FOLLOW AT BREAKERS




COST:

CLAIMS PROFESSIONALS - $25.00

ATTORNEYS - $175.00


 

Contact Dan Cummins at dancummins@comcast.net or 570-346-0745
for more information or to register.

ARTICLE: Calculating Delay Damages in Post-Koken Cases

The following article of mine recently appeared in the January 8, 2013 Pennsylvania Law Weekly and is republished here with permission:

Calculating Delay Damages in Post-Koken Cases


By

Daniel E. Cummins

Pennsylvania Law Weekly (January 8, 2013)

As the post-Koken auto law cases begin to proceed through trial and up the appellate ladder, more and more novel issues are being clarified by the courts. One such issue is how to handle the issue of assessing delay damages in cases where there is a tortfeasor defendant and an insurance company defendant, whether it be an uninsured motorist (UM) carrier or an underinsured (UIM) motorist carrier.

A Novel Issue

In its December 28, 2012, decision in the case of Marlette v. State Farm, (Pa. Dec. 28, 2012) (opinion by Todd, J.) (McCaffery, J., dissenting) (Orie Melvin, J., not participating), the Pennsylvania Supreme Court squarely addressed that very issue of whether, after a jury trial in a UM benefits matter, a plaintiff is entitled to delay damages on the full amount of the jury's verdict or only on the reduced verdict after the verdict had been molded downward to the amount of the uninsured motorist's policy limits available under the automobile insurance policy at issue.

After reviewing the law surrounding Pa.R.C.P. 238 delay damages, the court ruled that a plaintiff is not entitled in these types of cases to delay damages against a UM carrier on the full verdict of the jury, but rather only upon that amount that the plaintiff is legally entitled to recover from that defendant. More specifically, the court ruled that in UM cases, a plaintiff may only recover delay damages against the UM carrier under a calculation completed after the verdict is first, where necessary by an excess verdict, molded downward to the amount of the available UM limits under the policy. The court remanded the case back to the trial court for the correct calculation of the delay damages.

Excess Verdict Gives Rise to Issue

In Marlette, the plaintiffs had sued an uninsured tortfeasor and the plaintiffs' own uninsured motorist benefits carrier. The plaintiffs were covered by an uninsured motorist policy that provided total stacked UM limits of $250,000.

The jury in Marlette entered an excess verdict of $550,000 in favor of the injured party plaintiff and $150,000 in favor of the plaintiff's spouse on the loss of consortium claim. In a post-verdict ruling, the trial court molded the verdict against the UM carrier downward to the available UM policy limits of $250,000.

The Allegheny County trial court also molded the verdict downward even further to $233,306, reflecting a credit due to State Farm by virtue of a previous payment made by the carrier in the amount of $16,693.

In a post-trial motion, the plaintiffs requested that their delay damages be calculated based upon the $550,000 portion of the jury's verdict. The parties were in agreement that delay damages were not permitted with respect to a spouse's loss of consortium claim under Pennsylvania law.

The uninsured motorist carrier defendant, State Farm, asserted that the plaintiffs were not entitled to delay damages because State Farm was only legally responsible to pay up to the amounts of its UIM limits under the provisions of that policy or contract of insurance and that to award delay damages that pushed the total amount over and above the policy limits would be in violation of the applicable law.

The trial court disagreed with both parties and awarded delay damages on the reduced figure of $233,306. The delay damages that were awarded did indeed push the final verdict amount up to a number that was above the $250,000 UIM policy limits number.

On appeal, the Pennsylvania Superior Court held that the delay damages should have instead been calculated on the jury's gross verdict amount, i.e., $550,000 (excluding the loss of consortium award). The appellate court also generally ruled that the plaintiffs could recover money from the carrier over and above the UIM policy limits number.

Marlette's Rationale

As noted above, the Pennsylvania Supreme Court has reversed the lower courts' decisions in Marlette and sent the matter back to the trial court for a delay damages calculation consistent with its decision, i.e., on the reduced, molded amount and with the UM carrier being responsible for any award amounts only up to the amount of the policy limits.

The rationale for the Supreme Court's decision in Marlette was based, in part, on its reasoning set forth in its previous decision in the case of Allen v. Mellinger, 784 A.2d 762 (Pa. 2001). In Allen, the court limited the delay damages calculation to the statutory cap amount ($250,000) against a Commonwealth defendant, i.e., the amount legally recoverable from that party, as opposed to the calculation being based upon the verdict, which totaled $2.9 million.

Both the Allen court and the Marlette court emphasized that the obvious and stated purpose of Rule 238 is to compensate a plaintiff for the delays attendant in his recovery in a civil litigation matter. Rule 238 provides, in relevant part, that "damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury ... and shall become part of the verdict, decision or award."

In its opinion, the Marlette court quoted the Allen case in stating that it "defies reason" to suggest that the basis for calculating compensation for delay could be based upon anything other than that amount of a verdict that a defendant was actually responsible to pay to the plaintiff.

The court in Marlette further stated that, because the law of Pennsylvania limited a plaintiff's recovery in a UM case to the amount of the UM limits agreed to under the applicable contract of insurance, there could be no valid complaint of a delay for the plaintiff related to receiving amounts in excess of those limits, as the plaintiff was not entitled to receive those excess amounts in this litigation in any event.

According to Marlette, it therefore followed that if there is no valid claim for a delay in receiving those excess amounts above the policy limits under the applicable law, then there is no basis to include those excess amounts in the calculation of delay damages under the terms of Rule 238.

In other words, if there was only $1,000 in a bank account, would there be any reason for a bank to pay interest to the account holder for any amounts above that? More simply put, justice delayed is justice denied only to the extent that justice must be paid.

Open Questions Remain

Given the courts' practice of generally deciding UIM and UM issues hand-in-hand, it is anticipated that UIM cases will be handled in a similar fashion, i.e., delay damages will be calculated based upon a reduced verdict molded down to the amount of the available UIM limits in a given case.

In a post-Koken case, the issue may become whether there should be two separate amounts of delay damages depending upon which defendant is paying those damages.

In other words, an open issue remains as to whether there should be delay damages assessed on the full verdict against the third-party tortfeasor defendant and a separate delay damages assessment against the UIM carrier based only upon a downward-molded verdict against the UIM carrier to the amount of the UIM limits. It would appear that separate calculations may be warranted under Marlette's rationale that delay damages to be paid by a particular party should be based upon the amount that party is legally responsible to pay.

Also, under that same rationale, it appears that the credit due to the UIM carrier in the amount of the tortfeasor's liability limits should also be applied as a further reduction, or downward molding, of the verdict before the delay damages calculation is begun. In other words, another open issue remains as to whether a UIM carrier's delay damages assessment only be applied to those damages left against that carrier after the verdict is molded down to the available policy limits amount and after the third-party credit in the amount of the liability limits due to the UIM carrier is applied.

Yet another issue that may come to light in the future is that where the new Fair Share Act (applicable to claims arising on or after June 28, 2011) comes into play, there are multiple tortfeasor defendants involved in the auto accident trial, and each tortfeasor defendant is assigned a proportionate share of the percentage of liability.

In such a scenario, will each tortfeasor defendant's delay damages be assessed against only that percentage of the liability assigned to each tortfeasor as that percentage is the only portion of the verdict that is legally recoverable by the plaintiff against that tortfeasor? Also, once the calculation against the tortfeasors is somehow figured out, what would be the appropriate process of separately calculating the delay damages against the UIM carrier defendant?

Sometimes it seems that the more issues are resolved, the more others are created. That, my friends, is the beauty of the law (and what keeps us relevant).

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

Judge Amesbury of Luzerne County Addresses Liability of a Car Valet Service

In his recent decision in the case of Moranko v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 2011-CV-10312 (C.P. Luz. Co. Jan. 3, 2013 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas reviewed the issue of the responsibilities owed by a valet service of an establishment with respect to returning a motor vehicle to an allegedly visibly intoxicated person.

According to the opinion, the Plaintiff’s decedent arrived at a Pennsylvania casino and utilized the valet service on the premises. The Court’s Opinion noted that, while no one apparently saw the decedent consume any alcoholic beverages on the premises, at approximately 7:30 p.m. that evening, the decedent was allegedly seen by other patrons in a bar area of the casino in an allegedly visibly intoxicated state.

By 8:02 p.m., the decedent requested his car from the valet service. The Opinion notes that the decedent’s vehicle was delivered the decedent at approximately 8:11 p.m. The decedent was then involved in a fatal one-vehicle accident after leaving the casino premises.

In the Complaint filed on behalf of the decedent, there was a Dram Shop claim alleging service of alcohol to a visibly intoxicated person and a negligence claim based upon the delivery of the decedent’s vehicle to him while he was allegedly visibly intoxicated.

This case came to the Court by way of a Motion for Summary Judgment filed by the defense.

After applying the facts to the applicable law, the Court entered summary judgment in favor of the Defendant on all claims.

With respect to the Dram Shop claim, the Court noted that there was no direct evidence in the records to support the allegation that the Defendant had served the decedent with alcoholic beverages while he was visibly intoxicated.

In this regard, the Court noted that the decedent was on the premises for a relatively short period of time and that there were other unrelated vendors on the premises who could have sold alcoholic beverages to the decedent.

The Court disagreed with the Plaintiff’s argument that there was sufficient circumstantial evidence to allow this case to proceed to trial. The Court stated that, under the circumstances, any finding by the jury in favor of the Plaintiff under the record before the Court would be based upon mere speculation and conjecture.

With regards to the claim of negligence against the valet service, the Court stated that there was no Pennsylvania law that supported an argument that the valet service owed a duty to the decedent as alleged by the Plaintiff.

In its analysis, the Court reviewed the law of bailment and stated that, any refusal by the Defendant to return property in a mutual bailment, such as was present in the valet service arrangement, could possibly constitute a conversion. Accordingly, summary judgment was entered in favor of the Defendant on this claim as well.

Anyone wishing to review Judge Amesbury's decision in Moranko may click this LINK.

I send thanks to Attorney David Heisler of the Scranton office of Cipriani & Werner for bringing this case to my attention.

Wednesday, January 16, 2013

Middle District Splits on Proper Analysis for Products Cases

Differing decisions continue to come down on the Restatement (Second) versus the Restatement (Third) of Torts dispute in Pennsylvania products liability cases.

In his recent decision in the Pennsylvania Federal Middle District case of Vaskas v. Kenworth, 3:10 CV-1024  (M.D.Pa. Jan. 3, 2013), Judge A. Richard Caputo followed the Third Circuit's prediction that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Torts analysis of products liability cases if squarely faced with the issue.  In so ruling, Judge Caputo granted summary judgment to the defendant on several claims arising out of an incident during which a truck driver allegedly fell from the steps of a tractor trailer.

Although fellow Middle District Federal Court Judge John E. Jones, III ruled last summer in Sikkelee v. Precision Automotive that the Restatement (Second) analysis should be utilized in products cases given that the Pennsylvania Supreme Court declined to adopt the Restatement (Third) analysis in Beard v. Johnson, Judge Caputo noted in Vaskas that "[o]nce the U.S. Court of Appeals for the Third Circuit predicts how a state's highest court would resolve an issue, district courts within the district are bound by this prediction 'unless the state Supreme Court issues a contrary decision or it appears from a subsequent decision of the appellate courts that the court of appeals erred.'" (quoting Largoza v. General Electric, 538 F.Supp. 1164, 1166   (E.D.Pa. 1982)).

Applying the Restatement (Third) analysis led Judge Caputo to enter summary judgment on several of the Plaintiff's claims.

To review Judge Caputo's Order in Vaskas click HERE.  To review Judge Caputo's Opinion, click HERE.

Source:  Article:  "Another Federal Judge Insists Pa. Will Pick Restatement (Third)" by Saranac Hale Spencer, The Legal Intelligencer (Jan. 15, 2013).


COMMENTARY:

With this decision, the Middle District of Pennsylvania now joins the Western District of Pennsylvania as having conflicting decisions within a district on this important issue. 

Click HERE for previous Tort Talk posts covering this ongoing dispute over the proper analysis for Pennsylvania products liability cases.

It appears that confusion will continue to reign on this issue until the question reaches the Pennsylvania Supreme Court again.

Tuesday, January 15, 2013

Homeowner's Insurance Bad Faith Claim Reviewed

Homeowners Insurance case of note:

Viscounte v. Liberty Mut. Group, 2012 WL 6524980 (E.D. Pa. Dec. 14, 2012) (mem.)(In a case involving a homeowner's claim arising out of a flood incident, the court ruled that an insurer is not required to show that the process used in reaching its conclusion was flawless; instead, the insurer is only required to show that it conducted an investigation sufficiently thorough to yield a reasonable foundation for its action; insurer's refusal to pay constitutes nonfeasance (as opposed to malfeasance--the improper performance of a contractual duty) which is not actionable under PA's UTPCPL).

This Viscounte decision can be viewed online HERE.

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

Monday, January 14, 2013

UPDATE on Caserta v. GEICO Case

Caserta v. GEICO General Ins. Co., 2012 WL 6604613 (3d Cir. Dec. 19, 2012) (Scirica, Roth, and Barry, JJ.)(not selected for publication in the Federal Reporter)(boyfriend/girlfriend relationship does not satisfy the 3rd element ("closely related") for a bystander claim for negligent infliction of emotional distress; since the "closely related" element was not met, the court did not rule on whether the claimant would have been able to recover for such a claim under her boyfriend's mother's auto policy; court also ruled that girlfriend cannot recover for her own bodily injuries from her boyfriend's mother's policy because she does not meet the policy definition of an "insured")

The Tort Talk synopsis on the lower court's decision in Caserta can be viewed HERE.

Here is a LINK to that Third Circuit's decision in Caserta v. GEICO.

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

Wednesday, January 9, 2013

Notice of Change to Household Exclusion Required

In the Lawrence County case of Oesterling v. Allstate Ins. Co., No. 11429 of 2008 (C.P. Lawrence Co. Dec. 17, 2012 Piccione, J.), the court addressed the applicability of a household exclusion which was added to a policy several years after the policy was initially purchased.

Allstate Insurance Company brought the matter before the court by way of a Motion for Summary Judgment which was denied by the court.

At the time of the accident, the injured party was operating a scooter that was involved in an accident with another vehicle.  The injured party recovered from the tortfeasor and from the separate UIM carrier that covered the scooter.  When the injured party turned to Allstate, which covered other vehicles owned by the injured party, Allstate denied coverage on the grounds of the household exclusion in the policy given that the scooter was not covered under the injured party's policy with Allstate.

In response, the Plaintiff argued that he was not notified by Allstate of a change in the policy terms after it was originally purchased by the Plaintiff.

In denying Allstate's Motion for Summary Judgment, the Oesterling court ruled that the exclusion clearly applied but that if the change in the policy was a material change, it must be shown that the insured was put on notice of the change by the carrier.

As such, the court ruled in this matter that a jury would decide whether a change in wording to household exclusion that was made to the auto policy several years after the policy was initially purchased constituted a material alteration of coverage. If so, Allstate had the burden to notify the insured of the change to ensure that he understood and accepted it.

However, if the jury determined that the household exclusion was of a type that was typical of such a policy then the insured would have had the burden to read and understand his policy.

These were the disputed issues of fact that the court left for the jury to decide.

Anyone desiring a copy of this Oesterling v. Allstate case may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer, as well as Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Corrected Link to Hopkins v. Erie - UIM Statute of Limitations case

I am hoping this LINK will take you to the Hopkins v. Erie Ins. case reported here a few days ago regarding the statute of limitations in a UIM case.  Sorry for that the previous link did not work.

Thanks.

Monday, January 7, 2013

UIM Statute of Limitations Case

In the Montgomery County Court of Common Pleas Opinion of Hopkins v. Erie Insurance Company, No. 2010 - CV - 35352 (C.P. Montg. Co. Aug. 12, 2012 Carluccio, J.), Judge Carolyn T. Carluccio addressed the issue of the proper statute of limitation for a underinsured (UIM) claim.

This matter came before the court by way of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration.  The Plaintiff had previously settled her claim against the tortfeasor in June of 2004.

According to the opinion, while the Plaintiff notified the carrier of the settlement at that time by letter and advised the carrier in that letter that she wished to pursue a UIM claim, the Plaintiff took no further action with respect to the UIM carrier other than submitting a demand letter in 2008.  The opinion noted that, in addition to the Claimant's counsel speaking with an Erie claims representative about issues pertaining to an arbitration of the matter, Erie also requested medical records and authorizations from the Plaintiff.  The opinion confirms that executed authorizations were provided to Erie, some of which were sent out by the carrier to request records.

In March of 2009, the carrier issued a letter to the insured advising that it was closing its file on the basis that the statute of limitations on the UIM claim had passed.  The Plaintiff responded by filing the Motion at issue.  That Motion was denied and an appeal filed, triggering the issuance of this Pa.R.A.P. 1925 Opinion from the trial court explaining its reasoning for the Superior Court's review.

According to its filings, the Plaintiff argued that the time period for the four year statute of limitations should have been deemed to commence running as of the date of the Plaintiff's 2008 demand letter.

After reviewing the applicable law, the court upheld its own denial of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration on the basis of the expiration of the statute of limitations.  The court found that, under Pennsylvania law, since UIM claims were essentially contract claims, the four year statute of limitations for breach of contract claims applied.  In this regard, the court relied upon Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156, 159-160 (Pa.Super. 1983) and 42 Pa.C.S.A. Section 5525(a)(8).

This court noted in its opinion that there was no "governing precedent" as to when the statute of limitations begins to run in a UIM claim.  Reviewing a series of Pennsylvania state and federal trial court opinions, the Hopkins court was persuaded to conclude (1) that the statute of limitations begins to run in a UIM claim when the underlying matter is concluded, and (2) that letters issued by counsel and negotiations with the UIM carrier were not sufficient to overcome the statute of limitations or to excuse plaintiff's counsel from the necessity of filing a petition for the appointment of arbitrators in order to preserve the claim.

Since more than four years had passed between the Plaintiff's settlement of the claim with the tortfeasor back in 2004 and the filing of the petition to appoint arbitrators in this matter, the court denied the Petition at issue as barred by the statute of limitations.

Anyone wishing to review this decision may click this LINK

I send thanks to the prevailing Attorney Joseph Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention.


COMMENTARY:

It appears well-settled that the applicable statute of limitations for a UIM or UM claim is four years as those claims are considered to be based in contract.

Less settled, but apparently becoming more accepted, is the notion that the filing of a Petition to Compel Arbitration and/or a Petition to Appoint Arbitrators is the proper method to preserve a UM/UIM claim under a policy that calls for Arbitration to resolve any disputes on that type of claim.

Presumably, where the UIM policy instead requires a claimant to file a lawsuit in the court of common pleas as opposed to proceeding to an arbitration, a breach of contract Complaint alleging UIM claims should likewise be filed within four years of a settlement with, or a verdict against, a tortfeasor.

Note also that some UIM policies may provide that the UIM claim should be filed in conjunction with the lawsuit against the third party tortfeasor. 

Some practitioners may elect in any event to file both negligence claim against the third party tortfeasor and the breach of contract UIM claim in the same Complaint in order to move forward on all claims at the same time.

Thursday, January 3, 2013

A Tweet Peach from Georgia


According to a Law.com article entitled "Twitter Sinks Woman's Award After Car Accident" by reporter Mark Niesse, carefree Twitter messages about traveling and partying held down the damages awarded by a Georgia jury to a woman who was injured in a car accident.

The jury returned a $237,000 verdict which was much lower than the $1.1 million than the plaintiff had sought. In the crash, the 22 year old plaintiff broke her arm and incurred a forehead laceration that resulted in a scar. She asserted that her injuries inhibited her ability to do her job as a hair stylist.

However the defense used posts from the plaintiff's Twitter account at trial in an effort to show the jury that the plaintiff had recovered from the accident and was living a full life.

According to the article, at times after her accident, the plaintiff had tweeted about an "epic weekend" in New Orleans and also showed pictures of the plaintiff at the beach with friends during spring break. 

In another tweet, the plaintiff stated that she was "starting to love her scar."  Still other tweets posted pictures showing the plaintiff holding a handbag with her injured arm.  

I am not sure if non-subscribers can access to the link but if you'd like to try, here is the link to the article.  Subscribers to The Legal Intelligencer and the Pennsylvania Law Weekly should certainly be able to access this article HERE.

To date, I have not yet come across any Pennsylvania cases involving a motion to compel access to a party's Twitter account, or pertaining to the introduction of a party's tweets at trial, but I can only imagine it's a matter of time.  

I send thanks to reporter Ben Present of The Legal Intelligencer and Pennsylvania Law Weekly for bringing this article to my attention.  

Source of image:  www.teachthought.com.

Westlaw Citation for Indiana County Facebook Discovery Decision




I recently secured this Westlaw citation for the case of Simms v. Lewis, 2012 WL 6755098 (Pa. C.P. Ind. Co. Oct. 10, 2012), which is the Indiana County Facebook Discovery case in which Judge Thomas Bianco granted in part and denied in part a motion to compel access to a plaintiff's networking sites under an analysis based upon a requirement that there be a threshold showing that the granting of access to the site may lead to the discovery of relevant information.

I send thanks to Attorney James Beck, a writer for the excellent Drug and Device Law Blog, from the Philadelphia law office of Reed Smith LLP for securing this Westlaw citation.

Tuesday, January 1, 2013

THE BIG 80s

Registration is now open for the Tort Talk Expo 2013 CLE Seminar.  This CLE seminar promises an update on the law with a Big 80s flavor and has been approved by the Pennsylvania CLE Board for 2 Substantive Credits and 1 Ethics Credit.

The Tort Talk Expo 2013 is set to take place on April 18, 2013 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania from 12:30 pm to 4:30 pm with a post-seminar complimentary cocktail reception where you can continue to network and mingle with your colleagues.

Please consider reserving your spot now.  See below for more details on the program and registration.


TORT TALK EXPO 2013 CLE SEMINAR


PRESENTED BY

 
and 



Daniel E. Cummins, Esquire
FOLEY, COMERFORD & CUMMINS

at the

MOHEGAN SUN CASINO at POCONO DOWNS

Thursday, April 18, 2013

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

2 Substantive & 1 Ethics CLE Credits




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




 
CLE CREDITS - DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES





12:30 – 1:00 pm: REGISTRATION


 
1:00 – 2:30 pm: THE BIG 80s: AN UPDATE WITH A 1980s FLAVOR

--1:00 – 1:45 pm: THE TORT TALK AUTO LAW UPDATE
Presenter:

Daniel E. Cummins, Esq.
Foley, Comerford & Cummins




--1:45 – 2:30 pm: THE TORT TALK CIVIL LITIGATION UPDATE
Presenters:


Malcolm L. MacGregor, Esq.
Michael J. McDonald, Esq.
McDonald & MacGregor Law Firm




2:30 – 2:45 pm: BREAK




2:45 - 3:45 pm: DIAGNOSIS AND TREATMENT OF SHOULDER AND KNEE INJURIES
Presenter:

Dr. John Kline, Physiatrist
Northeastern Rehabilitation Associates




3:45 – 4:00 pm: BREAK



4:00 – 4:30 pm: A VIEW FROM THE BENCH:
CANDOR WITH THE COURT AT SETTLEMENT CONFERENCES
Presenters:


Lackawanna County Judge Carmen D. Minora

Luzerne County Judge Michael T. Vough





COMPLIMENTARY COCKTAIL RECEPTION
TO FOLLOW AT BREAKERS

 



COST:

CLAIMS PROFESSIONALS - $25.00

ATTORNEYS - $175.00




Contact Dan Cummins at dancummins@comcast.net or 570-346-0745
for more information or to register.