Thursday, February 28, 2013

TORT TALK EXPO CLE SEMINAR - APRIL 18, 2013


VIDEO CLIP: Discovery of Facebook Content


I was recently invited by The Legal Intelligencer/Pennsylvania Law Weekly, for whom I write a regular civil litigation column, to participate in a series of video presentations for their website. 

In the first video clip generated, Pennsylvania Law Weekly staff reporter Ben Present and I discuss the emerging issue of social media law. In this installment, we discuss whether Facebook pages are discoverable.

This video is part of the paper's Social Media Law collection, which features news, analysis, videos and an interactive timeline on this growing area of law.  Other clips are expected to follow. 

To view the first installment video clip on the discoverability of Facebook pages, click HERE.

I thank reporter Ben Present for inviting me to participate in this discussion.

Wednesday, February 27, 2013

Offensive Use of Collateral Estoppel By Workers' Comp Claimant Upheld

In his recent February 13, 2013 Memorandum and Order in the case of Alpensjo v. Sandvik Materials Technology, Inc., No. 2010-Civil-1277 (C.P. Feb. 13, 2013, Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a Motion for Partial Summary Judgment filed by the Plaintiff asserting the theory of collateral estoppel based upon a final judgment rendered by a worker’s compensation judge.  

This case arises out of a Complaint filed by the Plaintiff alleging that Sandvik wrongfully terminated the Plaintiff's employment as a violation of public policy in the context of a worker’s compensation claim.   The Complaint also alleged defamation.  

According to the Opinion, the record before the Court contained evidence of positive work reviews and advancement by the Plaintiff in his employment up through the date of a December 11, 2008 motor vehicle accident that left the Plaintiff impaired and unable to work.   The Court noted that, up to the time of the accident, there is no documents or testimony suggesting that Sandvik was unhappy with the Plaintiff as their employee. 

After the accident, the Plaintiff was limited in his ability to work and attempted, despite his condition, to at least work part-time hours.   By March of 2009, the Plaintiff arrived at work and was advised that his employment was terminated.  The Plaintiff, who was a Swedish citizen was advised that he had 30 days to leave the country as his work Visa was set to expire.  

The Court noted that the Plaintiff had a companion worker’s compensation benefits claim proceeding after his motor vehicle accident as well.   In the worker’s compensation claim, the worker’s compensation judge rendered a decision on the Plaintiff’s claim.  The Plaintiff asserted that the worker’s compensation judge’s decision should act as collateral estoppel on specific findings of fact and conclusions of law contained in that Opinion related to issues pending in his Court of Common Pleas action.  

The defense argued that the worker’s compensation decision should not be deemed to be conclusive or be given preclusive effect as the Defendant had no full and fair opportunity to litigate before the worker’s compensation court.  The Defendant also argued that there was no identity of issues as required by the doctrine of collateral estoppel.

With respect to this Court of Common Pleas decision, there was an issue as to whether or to the worker’s compensation decision squarely faced and resolved the central factual issue raised in the Court of Common Pleas case, i.e., whether the Plaintiff was subjected to a retaliatory discharge from his employment.  

Judge Carmen  D. Minora
Lackawanna County
In his Opinion, Judge Minora provides a thorough review of the doctrine of collateral estoppel as well as the relationship of issues raised in a worker’s compensation claim as related to a companion Court of Common Pleas claim. 

After reviewing the record before the Court, Judge Minora found that the elements necessary to implement the doctrine of collateral estoppel or issue preclusion were met in the case before him.   Judge Minora also found that the worker’s compensation hearings were conducted with sufficient protections and opportunity to be heard by Sandvik.   Ultimately, the Court found that the parties of the worker’s compensation case were identical to the parties in this Court of Common Pleas case and that Sandvik had a full and fair opportunity to litigate at the worker’s compensation hearing.   Accordingly, Judge Minora found that certain factual determinations made by the worker’s compensation judge were deemed to be conclusively established between the parties for purposes of the Court of Common Pleas case and that the Defendant was collaterally estopped from disputing these particular issues. 

Accordingly, the Plaintiff’s request for partial summary judgment based upon a doctrine of collateral estoppel was granted.  

Anyone desiring a copy of this decision reviewing the doctrine of collateral estoppel may contact me at dancummins@comcast.net.  


I send thanks to the Foley Law Firm in Scranton, PA for bringing this decision to my attention.  

 

Judge Nealon Reviews Frye Expert Standard in FELA Case

In another FELA decision in the case of Dennis v. Delaware and Hudson Railway Co. Inc., No. 2005-CV-1826 (C.P. Feb. 12, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Frye motion filed by the railroad Defendants to bar the opinion of the Plaintiff’s expert.  

As you may recall from prior posts, these consolidated cases involve former railroad workers seeking to recover damages under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §51-60, for black lung disease allegedly caused by occupational exposure to coal dust.  

In this particular matter, the Defendants filed a Frye motion asserting that the Plaintiffs’ pulmonary expert admitted under oath during his trial deposition that he did not observe the generally accepted methodology for diagnosing pneumoconiosis (black lung disease), such that the expert’s opinion should be deemed to be inadmissible under the standard set forth in the Frye decision.  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon granted the Defendant’s Motion after noting that, during his trial testimony, the Plaintiffs’ expert identified the generally accepted methodology for diagnosing black lung disease but acknowledged that he did not follow that methodology in formulating his opinions.  

The Court also noted that the expert’s opinions were not supported by any generally accepted diagnostic criteria. Accordingly, the testimony was ruled inadmissible under Frye and Pa. R.C.P.  207.1.   The Court therefore granted the Defendant’s Frye motion and ruled that the expert’s testimony was inadmissible.  

Judge Nealon’s opinion provides a thorough review of the standard set forth under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for the evaluation of novel scientific evidence being offered by an expert.  

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.  Given the number of decisions issued in this matter, please reference Dennis v. Delaware and Hudson Railway (Frye standard) when requesting this Opinion.

Thursday, February 21, 2013

Facebook Decision Out of Schuylkill County Follows Trend

In a January 31, 2013 decision in the case of Hoy v. Holmes, No. S-57-12, 107 Sch.L.R. 19 (C.P. Schuylkill Co. 2013 Domalakes, J.), Judge John E. Domalakes addressed a Defendant's Motion to Compel access to a Plaintiff's social media sites, including Facebook, in a motor vehicle accident case. 

Finding no factual predicate presented to allow for access to the Plaintiff's private pages on social media sites, the court denied the motion to compel without prejudice to the Defendant's right to present the motion again if a factual predicate was established.

In so ruling, the court in Hoy followed the trend of other decisions across the Commonwealth by coming to the following conclusions:

(1)  There is no constitutional right to privacy or any privilege that prohibits discovery of a party's social media activity;

(2)  Material found on the public portions of one's social media sites is discoverable; and

(3)  Material located on one's private pages of a social media profile are discoverable upon a showing of a factual predicate suggesting that allowing discovery of the private profile will lead to relevant information.  If no such factual predicate is established, discovery of the private pages will not be allowed.

Judge Domalakes' opinion in Hoy provides a thorough update on the current status of the law and confirms the lack of any appellate authority up through the issuance of this decision on January 31, 2013.


Anyone desiring a copy of Hoy v. Holmes may click this LINK.

I send thanks to Attorney J.T. Herber III of the Pottsville law firm of Williamson, Friedberg & Jones LLC for providing me with a copy of this decision.


I will update the Tort Talk Facebook Discovery Scorecard which can always be accessed by going to Tort Talk at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard." For now, here's a shortcut LINK to that Scorecard.

Please let me know if you hear of any other Facebook Discovery decisions. 



Pennsylvania Supreme Court Addresses Viability of Attorney's Fee Claim in Peer Review Dispute

In its recent February 20, 2013 decision in the case of Herd Chiropractic v. State Farm, No. 35 MAP 2012 (Pa. 2013)(Majority:  Castille, C.J., Eakin, J., Todd, J.)(Maj.Opinion by Saylor, J.)(Dissent by Baer, J. with McCaffery, J. joining)(Orie Melvin, J., did not participate), the Pennsylvania Supreme Court held that attorney fees are not recoverable when the peer review process is followed under Section 1797 of the Motor Vehicle Financial Responsibility Law.

As noted in this previous Tort Talk post, the Pennsylvania Superior Court had gone the other way and allowed for the recovery of attorney's fees in this scenario.  The Pennsylvania Supreme Court reversed.

This case provides a nice overview of the peer review process and challenges to the same.  In this matter, an individual obtained treatment from a chiropractic office after a motor vehicle accident.  State Farm submitted the chiropractor's medical bills to the peer review process and the result was a finding that certain treatments by the chiropractor were not reasonable and necessary.  As such, the carrier refused further payments.  In response, the chiropractic office filed suit and one of the main issues that went up to the Pennsylvania Supreme Court involved the remedies permitted under the statute.

While the carrier appeared to agree that the medical provider may have been authorized to seek the recovery of the payments due plus interest under the statute, the carrier asserted that attorneys fees were not permitted under the plain language of the statute where a peer review was utilized prior to the denial of the payments.

The Supreme Court relied upon several reasons in coming to its decision that attorney's fees were not permitted.  One such rationale was the Court's adherence to the American Rule that each party is responsible for its own attorneys fees absent statutory authorization to the contrary allowing the recovery of attorney's fees in a particular matter, an agreement for the payment of attorney's fees, or some other exception (none of which was found to exist in this matter).

While the Court agreed that Section 1797 is "neither comprehensive or a model of clarity," any change of the law in this regard in terms of attorney's fee-shifting should come from the General Assembly and not the Court.  The Court went on to state that the "Legislature's failure to adjust Section 1797 over time as imperfections have been revealed by experience, while unfortunate, does not alter the functions ascribed to our branches of government."

Applying the statute as worded, the Court concluded that attorney's fees were not warranted where a peer review was utilized in the process.

The Majority's Opinion in  Herd Chiropractic v. State Farm can be viewed HERE.

The Dissenting Opinion in Herd Chiropractic v. State Farm can be viewed HERE.

I send thanks to Attorney Mark Martini of the Pittsburgh law firm of Robb Leonard Mulvihill for bringing this case to my attention.  Attorney Martini and Attorney Robert Loch, of the same office, filed the amicus curiae brief for the Pennsylvania Defense Institute.  Attorney Gary Drakas of Forry Ullman represented State Farm.

Centre County Trial Court Rules in Favor of Consolidation in Post-Koken Case

The Centre County Court of Common Pleas has handed down a February 14, 2013 opinion in a Post-Koken case in favor of the consolidation of third party and UIM claims.

In the case of Murphy v. Hampton et al, No. 2012-3855 (Centre Co. Feb. 14, 2013 Grine, J.), the court reviewed a matter involving a lawsuit filed after a person was allegedly injured in an accident with a bus. The victim filed a lawsuit against the driver of the bus, the bus driver's employer, Centre Area Transportation Authority, and Nationwide, the Plaintiff's underinsured motorist (UIM) carrier.

The third party Defendants filed preliminary objections to the jointly filed Complaint. The third party Defendants made assertions of (1) improper joinder under Pennsylvania Rule of Civil Procedure 2229(b) and (2) a need for severance under Pennsylvania Rule of Civil Procedure 213(b) because they would be prejudiced by the introduction of insurance evidence at trial.

The trial court ruled in Murphy that the cases were not improperly joined as the causes of action arose out of the same occurrence and the same operative facts.  The court also noted that joinder avoided inefficiency and the delay attendant with what would be nearly two identical trials.  The court also noted that the joinder of the claims promoted judicial economy.

The trial court also found that severance was not required and the Pennsylvania Rules of Evidence 411 under the circumstances presented.

The preliminary objections of the third party Defendants were therefore overruled.

This decision out of Centre County is consistent with a prior 2012 Centre County decision in the case of Fennessey v. Sweeney and State Farm.


Anyone desiring a copy of Murphy v. Hampton may contact me at dancummins@comcast.net.


I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, as well as Attorney Paul Oven of the Moosic law firm of Dougherty, Leventhal & Price for bringing this case to my attention.  I thank Attorney Bill Mabius of the Pennsylvania Association For Justice for providing me with a copy of the opinion.

Wednesday, February 20, 2013

Judge Wallitsch Addresses Parameters of Neuropsychological Examination in Arbitration Setting

Judge Thomas Wallitsch (Ret.) recently issued an Order in the arbitration case of Bradigan v. Progressive in which he denied a Defendant’s Motion for Protective Order regarding an independent neuropsychological examination.   Although this Order is not binding precedent, it is noteworthy on the issue presented.   

In his Order, Judge Wallitsch stated that he found the Opinion of Judge R. Stanton Wettick, Jr., in the case of Rotunda v. Petruska to be persuasive.  

Judge Wallitsch rejected an apparent argument by the defense that the testing, and therefore the results, of the neuropsychological examination may be altered by the presence of a third party in the room such as a representative of the Plaintiff's attorney's office.  In his Order, Judge Wallitsch quoted Judge Wettick as stating, “the clear language of the rule allows only examinations that are possible when counsel is present.   A trial court may not, in the exercise of its discretion, provide for an examination outside the presence of counsel.   Through the promulgation of a rule permitting counsel to be present, the Pennsylvania Supreme Court has decided that the interest of the party to be examined in receiving the protection afforded by the presence of his or her counsel outweigh the interests of the parties seeking an examination that can only be conducted outside the presence of a third party.”  

Although not cited, it appears that Judge Wallitsch (and Judge Wettick) were referring to Pa. R.C.P.  4010.  

In his Order, Judge Wallitsch also confirmed that Plaintiff’s counsel had agreed, as per the rules, that there would be no audio or video recording of the neuropsychological evaluation.  

 Anyone desiring a copy of this Order may contact me at dancummins@comcast.net. 
 
I send thanks to Attorney Neil O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for bringing this Order to my attention.

A Discussion on Joint Tortfeasor Releases Under the New Fair Share Act

I recently received an inquiry as to whether or not the cases now falling under the Fair Share Act, which applies to all incidents occurring on or after June 28, 2011, would required a different form of a joint tortfeasor release if the parties were inclined to enter such a settlement agreement in part.  As I did not know the answer, I posted an inquiry on the Pennsylvania Defense Institute Member Listserve and also asked a few Plaintiff's attorneys for their thoughts on this novel issue.

I note that the most common response was that most attorneys haven't changed their form joint tort releases despite the application of the new Fair Share Act in the more recent cases. The thought remains that a proper pro rata joint tortfeasor release will still serve to immunize the settling defendant from further indemnity exposure.

It was also noted that, if the Fair Share Act applies to a given case, the court may be required to mold the verdict based on the terms of the joint tortfeasor release.

When I suggested that this topic would make a good CLE topic, one attorney advised that the PBI already has a CLE on the topic titled "How to Properly Document a Settlement Agreement" and subtitled "After the New Joint and Several Liability Law."  The materials are referenced at PBI No. 2012-7607.

Of course, the above should only serve as a start, and not an end, to any research or discussion on this novel question.  Further research on the issue is recommended and this post should not be relied upon as a final answer to the question.

Monday, February 18, 2013

Recent Luzerne and Lackawanna County Decisions on Parameters of Expert Vocational Interviews

In the matter of Franchetti v. Ranieli, No. 7461 of 2010 (CP Luz. Co. 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr., granted a Plaintiff's Motion for Protective Order and limited a vocational expert’s examination to four (4) hours.  President Judge Burke further compelled that the examination would be conducted Interrogatories in a local venue and not in the vocational expert’s office in Valley Forge, PA.

 In an Order entered by the Honorable Michael T. Vough in the matter of Price v. Price, Auto Glass Unlimited and State Farm Mutual Automobile Insurance Company, No. 13625 of 2010 (C.P. Luz. Co. 2012 Vough, J.), Judge Vough directed that a vocational expert appear to testify and explain before the Court on the issue of the location and requested length of his desired interview of the Plaintiff.  Reportedly, in response, the vocational expert agreed to be guided by the restriction set by President Judge Burke in Franchetti and the November 19, 2012 hearing on the Motion in the Price case was cancelled.

In neighboring Lackawanna County, in the case of Marion v. Motorist Mutual Insurance Company, No. 11-CV-7451 (C.P. Lacka. Co. 2012 Burke, D.M.), Attorney Henry Burke, in his capacity as the Lackawanna County Discovery Master, essentially adopted President Judge Thomas Burke’s position from the Franchetti case.  Judge Henry Burke restricted a vocational expert's examination to five (5) hours, ordered that it take place at a local venue, and that a representative of Plaintiff’s attorney’s office be allowed to be present (consistent with Rule 4010 and Rule 4010.1).
 
Anyone desiring a copy of these decisions may contact me at dancummins@comcast.net.
 
I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices in Kingston, PA for bringing these decisions to my attention.

Sunday, February 17, 2013

Two Months from Today......

The Tort Talk Expo 2013 CLE Seminar (April 18, 2013) is two months from today.

Registration is now open -- Here is the REGISTRATION FORM -- Seats are filling up quickly, and so is your calendar, so please consider registering now if you plan to attend.



This CLE seminar promises an update on Auto Law and General Civil Litigation Law with a Big 80s flavor in terms of videos and clips. There will also be a presentation on shoulder and knee injuries by a local noted physiatrist. The last session will be a View from the Bench with Judge Carmen Minora of Lackawanna County and Judge Michael Vough from Luzerne County.


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

 

(WALK -INS WELCOME)


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


CLICK HERE FOR REGISTRATION FORM


PREMIER SPONSORS:
 
In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators. To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):
 
At The Scene, Inc.: http://www.atthescene.com/
 

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


EPS Settlements Group: www.epssettlements.com


Minnesota Lawyers' Mutual: http://www.mlmins.com
 
 
Northeastern Rehabilitation Associates: www.nerehab.com


Network Deposition Services:  www.ndsreporting.com


OPTiMO Information Technology: www.OPTiMO-IT.com  
           

RecordTrak: http://www.recordtrak.com

Friday, February 15, 2013

Presenting at 15th Annual Personal Injury Potpourri


I have accepted an invitation from Harris Bock, Esq. to be a presenter at The Dispute Resolution Institute's

 15th Annual Personal Injury Potpourri

This CLE event is set to take place on April 16, 2013 at the Philadelphia Convention Center in Philadelphia, PA.  My topic will be a "Comprehensive Civil Litigation Update."

Here are the details along with this LINK to the Register Online page -- Hope to see you there:

 

Wednesday, February 13, 2013

Judge Nealon of Lackawanna County Addresses Several Issues Under Federal Employers' Liability Act (FELA)

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a number of different issues in several opinions in the context of consolidated actions brought under the Federal Employers' Liability Act (FELA).  Below are summaries of the recent decisions:


Enforceability of Releases

In his recent January 25, 2013 decision in the case of Dennis v. Delaware and Hudson Railway Company, Inc., No. 2005-CV-1826 (C.P. Lacka. Co. Jan. 25, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a railroad Defendant’s Motion for Summary Judgment seeking to dismiss four lawsuits by its former employees under the Federal Employers’ Liability Act (“FELA”).   The railroad Defendants asserted that release agreements that were excluded by the employees at issue barred their actions seeking to recover damages for black lung disease allegedly caused by coal dust exposure.
 
In his decision, Judge Nealon noted that, under the more stringent more federal standard governing the enforceability of releases under the FELA, the language of the settlement  release is strong, but not conclusive, evidence of the parties’ intent and the critical inquiry is what employment-related risks were known to the railroad employees at the time they signed their earlier releases.  
 
Ultimately, the court in this matter held that, in light of the more demanding standard applicable to FELA releases, it was a jury question as to whether the Claimants were aware of their black lung disease and its relation to occupational coal dust exposure at the time they executed their releases.   As such, the railroad Defendant’s Motions for Summary Judgment were denied.  
 
In his Opinion, Judge Nealon provides a thorough overview of the validity of FELA releases making this Opinion one to have if you are faced with such issues.  
 
Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.  Please reference this case as Dennis v. Delaware and Hudson Railway (Enforceability of Releases).  



FELA's Statute of Limitations

In yet another decision issued by Judge Terrence R. Nealon in the case of Fraynert v. Delaware and Hudson Railway Company, Inc., No. 2005-Civil-2822 (C.P. Lacka. Co. Jan. 31, 2013 Nealon, J)(consolidated with Dennis case), Judge Terrence R. Nealon addressed another issue arising under six (6) consolidated claims brought pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §51-60.   In this particular Opinion, the court addressed FELA’s three year statute of limitations. 

The cases all involve alleged pulmonary injuries that were allegedly negligently caused by occupational exposure to coal dust.  

This particular issue came before the Court by way of Motion for Summary Judgment filed by the Railroad Defendants in all six (6) cases.  In their Motion, the Defendants asserted that the occupational exposure claims were barred by FELA’s three year statute of limitations. 

Ultimately, Judge Nealon granted the Railroad’s Motion for Summary Judgment as to one Plaintiff based upon the federal version of the “discovery rule.”  The court found that jury questions on the issues presented remained in the other five (5) cases and the Motions for Summary Judgment were denied in those cases.

Anyone desiring a copy of this case may shoot me an email at dancummins@comcast.net.   Given the number of Opinions I have in this case, to assist me in locating and send to you this particular decision, please reference Fraynert v. Delaware and Hudson Railway (statute of limitations under discovery rule). 



New Matter//Affirmative Defenses
 
In yet another Opinion arising out of the railroad/FELA cases pending before the court, Judge Terrence R. Nealon addressed the need to assert affirmative defenses in order that such defenses may not be waived in the case of Dennis v. Delaware and Hudson Railway Company, Inc., No. 2005-Civil-1826 (C.P. Lacka. Co. Feb. 8, 2013 Nealon, J.).  

In this particular opinion, Judge Nealon addressed another Motion for Summary Judgment by the railroad Defendant in this action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §51-60.

In this case, the Defendant argued that an Asset Purchase Agreement (APA) under which it acquired substantially all of the assets of the former Delaware and Hudson Railway Company, barred the Plaintiff’s suits seeking to recover non-economic damages for alleged pulmonary injuries negligently caused by occupational exposure to dust.   The railroad Defendants contended that, under the terms of the APA, it did not assume liability for the FELA claims at issue involving occupational exposures during the periods of the Plaintiffs’ employment with the former Delaware and Hudson Railway Company.  

However, Judge Nealon ruled that the Defendant’s summary judgment argument based upon the Asset Purchase Agreement raised extrinsic facts which, if true, would defeat Plaintiffs’ FELA claims even if the allegations contained in their Complaints were accepted as true.   Accordingly, this argument was found to constitute affirmative defense that was waived unless timely raised in a new matter pursuant to Pa. R.C.P.  1030(a).   Since the pleadings filed by the Defendants in these cases never asserted the affirmative defense based upon the Asset Purchase Agreement, the Defendant waived that defense and was, therefore, not entitled to summary judgment based upon the Asset Purchase Agreement.

Judge Nealon’s Opinion provides a thorough overview of the law pertaining to affirmative defenses and the waiver of those defenses that are required to be pled under Pa. R.C.P.  1030.   The Opinion also cautions that Rule 1030(a) list but does not limit what may be pled as a New Matter and, as such, there are other affirmative defenses not listed as Rule 1030 that could be deemed to be a waivable defense.  
 
For example, the Court cites cases noting that the following affirmative defenses can be deemed to be waivable in particular cases:  Abandonment, Rescission, and a defense which is premised upon a contractual limitation or provision.  

As such, this Opinion emphasizes the importance of raising all possible defenses in the New Matter even if they are not listed as affirmative defenses in Pa. R.C.P.  1030(a).   The import of this rule is not limited to FELA cases.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net  Given the number of Opinions issued by the Court in this particular case, when requesting a copy of this case, please reference Dennis v. Delaware and Hudson Railway Company, Inc. (affirmative defenses).

Tuesday, February 12, 2013

Summary Judgment Granted in Monroe County Trip and Fall Case

In the Monroe County decision by Judge David Williamson in the case of Martz v. JKS Mobile Home Park, PICS Case No. 13-0091 (C.P. Monroe Co. Dec. 12, 2012 Williamson, J.), the court entered summary judgment in favor of a Defendant in a trip and fall case.  
 
By way of background, the Plaintiff alleged personal injuries after having tripped and fallen in her own yard on a piece of metal protruding out of the ground.   The Plaintiff filed a Complaint alleging that the Defendant was liable because it breached its duty to her in failing to keep the rear area of her leased lot free and clear of all dangerous conditions.  
 
The Defendant filed a Motion for Summary Judgment asserting that there is no question of any material fact as to liability because the Plaintiff had admitted at her deposition that she was in possession of the leased premises at the time of her injury and that the Defendant had no notice of the alleged defective condition.  
 
The Plaintiff attempted to raise genuine issue of material fact as to possession and control of the area in which she fell.  
 
The court granted summary judgment after determining, from a review of the Plaintiff’s own deposition testimony, that she had maintained the area for almost three (3) years and had even placed a fence around it.   Based upon this testimony, the court determined that the area was within her maintenance and control and that the Defendant had no duty to make the area safe.  
 
The court also relied upon the Plaintiff’s deposition with respect to her admission that even she did not know how long the object that caused her to trip and fall was in her backyard.  
 
The Plaintiff had also only witnessed the Defendant’s employees leave logs in or near her yard, which had nothing to do with her fall.  No other involvement by the Defendant with the Plaintiff's yard was indicated.   As such, the court determined that the Plaintiff had failed to show any breach of any duty by the Defendant.  
 
Significantly, the court also rejected the Plaintiff’s argument that a determination on summary judgment could not be made on deposition testimony alone.  The court cited applicable law confirming that, since the Defendant had supported its motion by using the deposition testimony of an opposing party and the admissions contained therein, summary judgment could be granted on that basis under Pennsylvania.  
 
Anyone desiring a copy of this decision may contact the Pennsylvania Law Weekly’s Pennsylvania Instant Case Service at 1-800-276-7427 and providing the above-referenced PICS Case Number and paying a small fee.
 
Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly, 30 PLW 103 (Jan. 29, 2013).  

Sunday, February 10, 2013

Summary Judgment Granted on Bad Faith Claim Under Homeowner's Policy

The United States Federal Court for the Eastern District of Pennsylvania recently issued a decision granting in part and denied in part an insurance company’s Motion for Summary Judgment in the bad faith case of Dixon v. Allstate Ins. Co., PICS Case No. 13-0136 (E.D. Pa. Dec. 21, 2012 Rice, J.).  

The matter arose out of an insurance dispute arising from storm water damage.   The Plaintiff sued the Defendant insurance company for bad faith, fraud, and breach of contract.  

The Plaintiff sued Allstate for allegedly acting in bad faith by refusing to pay Plaintiff’s full claim for benefits.   However, the court found that Allstate’s reliance upon estimates provided by an independent adjuster assigned by Allstate was not unreasonable or unfounded.    

The court also noted that the Plaintiff’s allegations of bad faith based upon the alleged incompetency of the adjuster would, at best, reflect allegations of mere negligence or bad judgment, neither of which was sufficient to support a claim for bad faith in the sense of any alleged dishonest purpose, ill will, or disregard for the truth by Allstate.  

Ultimately, the court granted the carrier’s Motion for Summary Judgment on the Plaintiff’s claims for bad faith and fraud.  The court denied the carrier’s motion with respect to the Plaintiff’s claims for breach of contract.   

Anyone desiring a copy of this decision may contact the Pennsylvania Law Weekly’s Pennsylvania Instant Case Service at 1-800-276-7427 and providing the above-referenced PICS Case Number and paying a small fee.

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly 30 PLW 103 (Jan. 29, 2013).  

The Dixon v. Allstate Ins. Co. Opinion may also be viewed online HERE.

Ski Resort's Release From Liability Upheld in Monroe County

In his recent December 6, 2012 decision, Judge Jonathan Mark of the Monroe County Court of Common Pleas recently granted summary judgment in favor of a ski resort in the case of Freeman v. Camelback Ski Corp., PICS Case No. 13-0083 (C.P. Monroe Co. Dec. 6, 2012 Mark, J.).  

In this matter, the court ruled that the ski resort’s liability release and agreement not to sue for injuries resulting from the act of skiing or the use of the resort’s equipment or facilities contemplated and included the Plaintiff’s action of walking in ski boots across a pathway from the rental equipment building to the ski slopes.   As such, the court granted the Defendant’s ski resort’s Motion for Summary Judgment.  

Under the liability release form signed by the Plaintiff entitled “Rental Agreement and Agreement Not to Sue-PLEASE READ” was a clause stating that the signor understood and assumed the risk of skiing and agreed not to sue the Camelback Ski Resort for any injuries sustained as a result of skiing or using Camelback’s equipment or facility.  

The Plaintiff is alleged injured while wearing ski boots and carrying skis when he left the rental office, walked across the courtyard, and slipped and fell on a snow/path depression in the walkway.  

If the parties’ dispute over the scope and extent of the liability release, the Plaintiff asserted that the release should only be deemed to apply to injuries and damages associated with the activities of skiing or snowboarding.   The Plaintiff also alleged that his fall on the walkway was an unexpected risk not specifically covered by the release. 

The court disagreed and found the path upon which the Plaintiff fell to be covered by the liability release.   The court noted that the this party was used for the purpose of getting the Plaintiff to the designated ski area, which was the purpose for which he had rented equipment, paid fees, and signed the release.   The court also found an inherent risk of skiing including the associated act of walking in ski boots to and from the rental equipment office to the slopes while walking over snow packed walkways.  

Based upon the above, the court granted summary judgment in favor of the Defendant.  

Anyone desiring a copy of this decision may contact the Pennsylvania Law Weekly’s Pennsylvania Instant Case Service at 1-800-276-7427 and providing the above-referenced PICS Case Number and paying a small fee.

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (30 PLW 103) (Jan. 29, 2013).  

Thursday, February 7, 2013

Federal Western District Court Reviews Bad Faith Claims in Uninsured Motorist (UM) Context

In her recent January 24, 2013 decision in the case of Katta v. GEICO, No. 2:11-CIV-729 (W.D. Pa. Jan. 24, 2013 Conti, J.), Judge Joy Flowers Conti of the United States District Court For the Western District of Pennsylvania addressed several bad faith issues in the uninsured motorist context.  

By way of background, this matter arose out of a motor vehicle accident during which an uninsured driver was involved in an accident with the Plaintiff’s vehicle.   The Plaintiff filed a claim for uninsured motorist coverage under his insurance policy with GEICO. 

Following an inability to agree upon a valuation of the claims presented, the Plaintiff filed suit claiming several violations of Pennsylvania state law, including a claim for common law bad faith and a violation of the Pennsylvania bad faith statute, 42 Pa. C.S.A. §8371.  

After discovery was completed, the Defendant filed a Motion for Summary Judgment raising two issues.   First, the defense asserted that Pennsylvania did not recognize a common law claim for bad faith.  Secondly, GEICO argued that the agreed upon facts do not support a claim for bad faith pursuant to the Pennsylvania bad faith statute.   The Defendant’s Motion for Summary Judgment was granted in part and denied in part.  

The court denied the Defendant’s GEICO’s Motion for Summary Judgment to the extent that it asserted that Pennsylvania did not recognize a common law claim of bad faith.  To the contrary, the court in this matter found that Pennsylvania does indeed recognize such a common law claim, citing Birth Center v. St. Paul Companies, Inc., 787 A.2d 376 (Pa. 2001).  

However, the court granted the Defendant’s Motion for Summary Judgment with respect to the Plaintiff’s statutory bad faith claim under 42 Pa. C.S.A. §8371.   After thoroughly reviewing the law applicable to statutory bad faith claims, the court found that the Plaintiff did not establish that the Defendant had unreasonably undervalued the Plaintiff’s injuries.   In this regard, the Plaintiff largely relied upon the fact that the Plaintiff alleged that there was a lost wage claim of $17,770, which was approximately 2 ½ times greater than the Defendant’s overall offer of $7,000.00 in settlement.  

The court noted that the evidence presented indicated that the Defendant was not aware of the Plaintiff’s lost wages at the time that offer was made.  

The court otherwise also noted that the Plaintiff failed to identify any relevant legal authority supporting the Plaintiff’s argument that a disagreement over the evaluation of the claim was sufficient to constitute bad faith as a matter of law.  

To the contrary, the court in this matter found that, viewing the record as a whole, the carrier had presented evidence that it had acted reasonably with respect to the handling of the Plaintiff’s claim.

The court also noted that the Plaintiff did not meet his burden of establishing clear and convincing evidence in bad faith.  

More specifically, the records revealed uncertainties surrounding the Plaintiff’s alleged injuries and treatment such that the Defendant was under no affirmative duty to even negotiate a settlement.  

While the Defendant did make an offer based upon its review of the evidence, the Plaintiff failed to present any evidence that the Defendant failed to consider all of the information available to it at the time the offer was made.   The court stated that, even after the Defendant became aware of the Plaintiff’s alleged lost wages, there still remained conflicting evidence about the extent of the Plaintiff’s injuries in light of the IME completed and the evidence of the Plaintiff’s subsequent accidents.   The court reiterated that there was no evidence of bad faith on the part of the Defendant presented in this matter. 

Rather, the facts presented merely reflected a disagreement over the value of the Plaintiff’s claims.   As such, the Defendant’s Motion for Summary Judgment filed against the statutory bad faith claims under 42 Pa. C.S.A. §8371 was granted.  

Anyone wishing to review the Katta v. GEICO decision, may click HERE.

 

Tuesday, February 5, 2013

Tort Talk Featured on Local News Program Yesterday

 
 
Totally unbeknownst to me, Tort Talk was selected as the "Blog of the Week" by www.NEPABlogs.org  and was featured as such on the local news program PA Live! (WBRE - Channel 28) yesterday.  What a nice surprise and honor!  Click the above link to view.
 
I send thanks to Gary Willsch of At the Scene, Inc., a local professional investigative services company, for bringing this broadcast to my attention and sending me the link.
 
I also thank Harold Jenkins of www.NEPABlogs.org for selecting Tort Talk as the "Blog of the Week."  Here's the LINK to the review of Tort Talk on that Blog.

Monday, February 4, 2013

Judge Williamson of Monroe County Addresses Several Post-Koken Issues At Once

In his recent decision in the case of Orsulak v. Windish, No. 55-Civil-2011 (C.P. Monroe Co. Jan. 14, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed several issues, including a Motion for Severance filed by the Defendant insurance company, Penn National Insurance, in a post-Koken matter involving claims of underinsured motorist benefits and bad faith.  

In its Motion, Penn National requested a severance of the underinsured motorist claims from the breach of contract and bad faith action.  In the alternative, Penn National requested a special procedure to be employed by the Court to ensure a fair operation of the justice system under the facts presented.   In another motion, Penn National sought the preclusion of the introduction of any evidence of insurance at trial.  

Judge Williamson granted Penn National’s request for severance of the breach of contract and bad faith claims from the UIM claim.  The judge agreed with the carrier’s request that the breach of contract and bad faith claims be heard after the UIM case is concluded. The Court agreed that discovery of attorney/client communications that may be relevant in a bad faith action, but not in a UIM claim, could be better protected, and the interest in justice would be served if the matter was severed.  

Judge Williamson reasoned that while the bad faith claim would be decided by the Court, the remaining claims involved jury issues.  The Court noted that, if the cases remained consolidated, evidence admitted before the jury in the bad faith claim for the Court only to consider would likely only serve to confuse the jury and its role in the proceedings.   The Court also noted that the disclosure of certain information for purposes of the bad faith claim could serve to prejudice the jury against the insurance company Defendant.   Furthermore, if the cases were severed, the jury could be shielded from any improper mentioning of insurance.   While agreeing with that argument, the Court did note that it understood that members of the jury must be, in this day in age, aware that automobile insurance issues are raised in automobile accident matters.

The Court also noted that, in this case, the Plaintiff’s underlying third party liability claim against the tortfeasor and the breach of contract UIM claim would be heard together and that the verdict and amount of damages entered in that matter could ultimately make the companion bad faith claim moot.  The Court noted that if the Plaintiff’s underlying claims are settled, or if a jury returned a verdict for less than the policy limits of the UIM coverage, the bad faith claim would then have no merit.   Accordingly, the Court found the interest of justice, fairness, and judicial economy mandated that the breach of contract  and bad faith claims be severed from the UIM claim.  

While the Court granted Penn National’s severance request, it denied the request of the carrier that all proceedings in the bad faith case, including discovery, be stayed pending the resolution of the UIM claim.    The Court found that to grant such a request would unfairly delay the possible conclusion of all of the proceedings.  Judge Williamson also noted that the Plaintiff had a right to move their cases to trial.   The Court also noted that the fact that the UIM claim may be settled or resolved for less than the policy limits, thereby making the bad faith claim moot, was not sufficient reasons to freeze discovery in the bad faith claim.   The Court additionally noted that the carrier did not show any actual prejudice that would outweigh the Plaintiffs’ right to move this case along and have the bad faith claim heard immediately, or as soon as possible, once the UIM claim is tried to verdict.  

Judge Williamson stated that, while he saw no actual prejudice at present, he did reserve the power to order restrictions on discovery if and when prejudice is shown by way of a motion filed after discovery was served.  Judge Williamson stated that there were different ways that the Court could handle a situation where prejudicial information of the carrier may be potentially exposed through discovery efforts.   He rejected the request for a blanket “freeze” of all matters in the bad faith claim until the UIM claim is concluded.   In so ruling, the Court recognized that there may be some information contained in the carrier’s files that the carriers should not be required to furnish until the resolution of the UIM claim, “including statements regarding settlement strategy.”  

Lastly, the Court granted Penn National’s additional request that the UIM claim be consolidated with the underlying tortfeasor claim.   This request was granted in the interest of judicial economy.  

The Court also granted the carrier’s additional Motion to Preclude the Introduction of any Insurance during the course of trial.   The Court also agreed that Penn National’s name should not be mentioned during the course of the trial.   However, the Court did agree that it would be unfair not to identify counsel for Penn National who might appear at trial.   The Court stated that, not identifying Penn National’s defense attorney could allow a jury to infer that both defense counsel represents a tortfeasor.   The Court felt that this would be improper as was previously held in the Allegheny Court of Common Pleas case of Stepanovich v. McGraw.  

As such, Judge Williamson felt that it would not be fair to the Plaintiff to grant the carrier’s request for consolidation and then not explain why the Penn National is defending the matter and is present in addition to the tortfeasor.   Accordingly, Judge Williamson noted that, if Penn National intended to participate in the jury trial with the tortfeasor and the tortfeasor’s attorney, then Penn National would be identified at trial as an additional party.  However, if Penn National’s plan was not to participate at trial than that carrier would not be identified.  
 
I send thanks to Attorney Pete Speaker of the Harrisburg office of Thomas, Thomas & Hafer for forwarding this case to my attention. 

Anyone desiring a copy of this decision by Judge Williamson in the case of Orsulak v. Windish may contact me at dancummins@comcast.net.

I have updated the Post-Koken Scorecard with this case.  That Scorecard can also always be reached at the Tort Talk website at www.TortTalk.com by scrolling down the right hand column of the blog and clicking on the date under the label, "Post-Koken Scorecard."

Sponsors for Tort Talk Expo 2013

I note that another Sponsor for the upcoming April 18, 2013 Tort Talk Expo 2013 at the Mohegan Sun Casino will be:


EPS SETTLEMENTS:  www.epssettlements.com


We thank EPS Settlements and all of the other Sponsors of the event for their participation.

For more information on the Agenda, Registration, and other Sponsors for the Tort Talk Expo 2013, please click HERE.

Thank you.

Sunday, February 3, 2013

TORT TALK EXPO 2013 CLE SEMINAR IS JUST TWO AND A HALF MONTHS AWAY

The Tort Talk Expo 2013 CLE Seminar (April 18, 2013) is ONLY TWO AND A HALF MONTHS AWAY.

Registration is now open -- Seats are filling up quickly, and so is your calendar, so please consider registering now if you plan to attend.
 


This CLE seminar promises an update on Auto Law and General Civil Litigation Law with a Big 80s flavor in terms of videos and clips.  There will also be a presenation on shoulder and knee injuries by a local noted physiatrist.  The last session will be a View from the Bench with Judge Carmen Minora of Lackawanna County and Judge Michael Vough from Luzerne County. 


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

 




(WALK -INS WELCOME)


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


CLICK HERE FOR REGISTRATION FORM


 
 
PREMIER SPONSORS:
 
In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators. To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):

At The Scene, Inc.:  http://www.atthescene.com/
 
 
Courtside Documents: http://www.courtsidedoc.com/


EPS Settlements Group: www.epssettlements.com
                                   

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


Network Deposition Services: www.ndsreporting.com
 
 
Northeastern Rehabilitation Associates: www.nerehab.com


OPTiMO Information Technology:  www.OPTiMO-IT.com
           

RecordTrak: http://www.recordtrak.com/