Wednesday, December 31, 2014

HAPPY NEW YEAR TO YOU!!




FROM MY OFFICE IN SCRANTON, PENNSYLVANIA,
SENDING YOU BEST WISHES 
FOR A HAPPY, HEALTHY NEW YEAR!!
 
THANK YOU --VERY MUCH-- FOR
READING AND SUPPORTING
TORT TALK.
 
Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA
570-346-0745
 
 
Firm Website:
 
Online Personal Resume:
 
 

 

Tuesday, December 30, 2014

The 2014 Tort Talk Top Ten



THE 2014 TORT TALK TOP TEN
As another year winds down to an end, here's a look back at some of the top cases and trends of the year in the 2012 TORT TALK TOP 10:

10.  Prospect for Medicare Set-Asides in Third Party Lawsuits Dead

According to a press release from The American Association for Justice, the Centers for Medicare & Medicaid Services (CMS) withdrew its proposed rule in tort actions on future medicals called the “Medicare Secondary Payer and Future Medicals” rule.  According to the AAJ, this means that, currently, there is no future medicals rule pending from Medicare and the prospect of having to do Medicare Set-Asides in third party liability matters is now dead.


9.  Doctrine of Forum Non Conveniens

In Lee v. Bower Lewis Thrower Architects, 2014 Pa.Super. 240 (Pa. Super. Oct. 22, 2014 Gantman, P.J., Bender, P.J.E., and Platt, J.)(Op. by Gantman, P.J.), the Pennsylvania Superior Court upheld a Philadelphia Court of Common Pleas judge’s ruling granting a Defendant’s Motion to Transfer under the Doctrine of Forum Non Conveniens.   This case represents one of the first appellate decisions applying the Pennsylvania Supreme Court’s recent Forum Non Conveniens ruling in the case of Bractic v. Rubendall.  

Anyone wishing to review the Pennsylvania Superior Court's decision in the Lee case, may click this LINK. 



8.  Right to Assign Bad Faith Claim Upheld

In Allstate Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014)(Op. by Saylor, J.)(Castille, C.J, Dissenting Without Opinion), the Pennsylvania Supreme Court ruled that a third party defendant tortfeasor hit with an excess verdict in a trial on personal injuries arising out of a motor vehicle accident may assign to the plaintiff his potential rights to sue his own automobile liability insurance carrier for a bad faith refusal to settle the case prior to trial.
The Supreme Court's decision may viewed at this LINK.

7.  Exercise of Federal Court Jurisdiction Over Insurance Coverage Actions Clarified

The case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), has been touted as the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.  While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a general proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court.  Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  The Third Circuit clarified the factors to be considered in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage is anticipated. 

Anyone wishing to review the Reifer Opinion by the Third Circuit Court of Appeals may click this LINK.


6.  Discovery of Attorney-Expert Opinions is Barred

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.

On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."


5.   A Short-handed Pennsylvania Supreme Court – Again.

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again.  Time to consider a switch to merit selection process where the nominees are fully vetted in the same rigorous manner as Federal Court Judicial nominees are subjected to?



 
4.  Much Needed (Not Appellate) Guidance on Proper Jury Instructions for Post-Koken Cases  

In Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed cases from within and without Pennsylvania in an effort to formulate even-handed jury instructions designed to inform the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this particular matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims and defenses presented as opposed to the type of parties involved.  

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may click this LINK.


3.  Statutory Caps in Cases Against Governmental Agencies Upheld

 In Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014 ),  the Pennsylvania Supreme Court upheld the constitutionality of the statutory cap of $500,000 protecting local governmental agencies in personal injury tort claims.

The Court's Opinion in Zauflik can be viewed HERE. 

Justice Baer's Concurring Opinion can be viewed HERE.


2.  Right to a Fair and Impartial Jury Upheld 

In Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), the Pennsylvania Superior Court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that party’s peremptory challenges.  According to the Opinion, the jury that resulted in the Cordes case included a husband of a patient of the defendant doctor, the daughter of a patient of the defendant doctor, and an employee of the parent medical corporation whose subsidiary employed the defendant doctor.   The Opinions issued by the Cordes court all essentially agree with the notion that an important goal of jury selection is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of partiality to a disinterested observer.   In the end, it was held that the trial court erred in refusing, after the exhaustion of a party’s peremptory challenges, to strike for cause those jurors who had a close relationship to a Defendant doctor and/or were employed by the same company as that doctor despite those jurors’ assurances of impartiality.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.


1.  A New Analysis for Pennsylvania Products Liability Cases Adopted

In Tincher v. Omega Flex, Inc.,  the Pennsylvania Supreme Court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis.  The import of the Court’s lengthy Opinion is still being debated and is likely to lead to ongoing litigation on the proper analysis to be utilized in products cases in the years to come.

Concisely, the new strict products liability analysis adopted by the Pennsylvania Supreme Court was enunciated, as follows:

"...we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a  preponderance of the evidence."

The Court went on to emphasize that the issue of whether or not a product is in a defective condition was a question of fact to be considered by a jury and could only be decided by a court on a motion for summary judgment if the court found that no reasonable minds on a jury could differ on a conclusion that a product was not defective.

To review a copy of the Pennsylvania Supreme Court's lengthy decision in Tincher v. Omega Flex, click HERE.

In his Dissenting and Concurring Opinion, which can be viewed HERE, Justice Saylor noted, in part, that he favored the adoption of the Restatement (Third) of Torts analysis for products cases.

HONORABLE MENTIONS:
-Still awaiting appellate guidance on wide variety of Post-Koken issues
-Still awaiting appellate guidance on Facebook discovery issues
-Still awaiting appellate guidance on Cellphone Use in auto accident cases (punitive damages)
-Hudak-Bisset v. County of Lackawanna et al., No. 2007-CV-2401 (C.P. Lacka. Co. March 19, 2014 Minora, J.): recognizes cause of action for recovery of damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the negligence of a tortfeasor defendant in a car accident case.
-Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.





 
NOTE:  Portions of this blog post are copied from other previous Tort Talk blog post as well as my November 25, 2014 Pennsylvania Law Weekly Article entitled "THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME: A Review of Important Civil Litigation Cases and Trends in 2014"

Tuesday, December 23, 2014

First Manifiestation Rule of Insurance Coverage vs. Multiple Trigger Theory of Liability Insurance Addressed by Pennsylvania Supreme Court


In its recent December 15, 2014 Opinion in the case of Penn Nat'l. Mut. Cas. v. St. John, 86 MAP 2012 (Pa. Dec. 15, 2014)(Op. by Baer, J.)(Dissenting Op. by Saylor, J.), the Pennsylvania Supreme Court reviewed the applicability of the multiple trigger theory of liability insurance previously it adopted in the context of asbestos litigation would apply in this case of an alleged ongoing and progressive property damage that was manifested in a later injury. 

The underlying facts involved the insured's expansion of their dairy farm and faulty work performed by a plumbing company in that expansion that eventually led to contaminated water being provide to the farm's herd of milking cows.

Here, there was a dispute between parties over which of several insurance policies were implicated for coverage under the facts presented.  The insured was arguing that coverage should be considered to be triggered under all policies in existence from the time of the exposure to the harmful condition until the manifestation of the injury.

After review, the Supreme Court affirmed all aspects of the lower court’s decision finding that coverage was triggered under only that policy that was in effect when property damage became "reasonably apparent."  In so ruling, the Court applied its understanding of the first manifestation rule in terms of the triggering of liability coverage.

Notably, the Court declined to apply the multiple trigger theory of liability insurance coverage to this set of circumstances.

Anyone wishing to review this Opinion, may click this LINK
The Dissenting Opinion by Justice Saylor, who believed that the appeal should have been dismissed as improvidently granted and also voiced reservations regarding the Majority's analysis, can be viewed HERE.

I send thanks to Attorney Steven DiLiberto of the Wilmington, Delaware office of ACE North American Claims for bringing this case to my attention.
 
 
Source of Image: www.zazzle.com.au
 

Monday, December 22, 2014

The Pennsylvania Supreme Court Analyzes the Gist of the Action Doctrine and The Certificate of Merit Rules



In a wordy December 15, 2014 decision in the homeowner's insurance contract dispute case of Bruno v. Erie Insurance, No. 25 WAP 2013 (Pa. Dec. 15, 2014)(Op. by Todd, J.) (Concurring Op. by Eakin, J.), the Pennsylvania Supreme Court offered its latest detailed analysis of the "gist of the action" Doctrine, as well as the scope of the Certificate of Merit rules in professional negligence claims.

This matter involved a contractual dispute between insureds and their homeowner's carrier over the alleged existence of mold in the insured's home and how to remedy the same. The insureds attempted to include in their suit a negligence claim against the engineer retained by the carrier to evaluate the alleged mold condition.

The homeowner's insurance carrier Defendant filed preliminary objections asserting that the gist of the action doctrine barred the Plaintiff's pursuit of a negligence claim arising out of the same allegations as involved in the breach of contract action.

The engineering expert filed preliminary objections asserting that the claim against him was barred due to the Plaintiff's failure to secure a Certificate of Merit to support the negligence claim against that professional defendant.

After extensively reviewing essentially the entire history of the doctrine, the Supreme Court ruled that the negligence action asserted in this matter against the homeowner's carrier based upon the alleged misdeeds and/or omissions of the carrier's adjuster or its retained engineering expert was not barred by the "gist of the action" doctrine.  The court found that that the allegations of negligence on the part of a person or persons performing the duties under, or in furtherance of, the contract are, as a matter of law, not to be viewed as a cause of action based upon the underlying contract since such claims are not founded upon the breach of any of the specific promises that make up the contract, but rather the negligent acts or omissions of an agent of the homeowner's carrier.  See Maj. Op. at p. 35, 36-37.

In other words, while the homeowner's carrier had contractual duties to properly investigate whether mold existed, and to pay for property damage caused by the mold, the focus of the allegations by the insured was not that the carrier failed in meeting these contractual obligations, but rather, that, in the course of attempting to fulfill these obligations, representatives of the carrier (the adjuster and the expert retained by the carrier) acted negligently in their dealings with the insureds.  As such, the Plaintiff's were alleging a breach of a social duty in this regard as opposed to any breach of the contract terms.

Accordingly, the court found that the Plaintiff's negligence claims against the carrier were not barred by the "gist of the action" doctrine.

The Court also addressed the issue of whether the insureds were required to secure a Certificate of Merit under Pa.R.C.P. 1042.1 and 1042.3 in order to be able to proceed on their negligence claim against the engineer retained by the carrier to inspect the mold conditions. 

After studying the wording of the Rules, the Pennsylvania Supreme Court ruled that the insureds were not required to obtain a Certificate of Merit in order to proceed with their negligence suit against the engineer, since they were not patients or clients of the engineering company which employed that expert.  Stated otherwise, as the Plaintiffs were not the party who retained the expert, they were not required by the applicable Rules to secure a Certificate of Merit relative to their pursuit of a negligence claim against the engineer.

Overall, the Supreme Court reversed the Superior Court and remanded for further proceedings.

Anyone wishing to review the Pennsylvania Supreme Court's majority Opinion decision in the Bruno v. Erie Insurance case may click this LINK.
The Concurring Opinion by Justice Eakin, joined in by Chief Justice Castille, can be viewed HERE.  Justice Eakin and Chief Justice Castille agreed with the majority Opinion but cautioned that the "broad pronouncement" in the majority Opinion suggesting that finding negligent actions by a contracting party do not arise out of the contract does not fully comport with the gist of the action Doctrine and may represent a painting of the issue with too broad a brush.
 
I send thanks to Attorney Andrew L. Braunfeld of the Conshohocken law firm of Masterson Braunfeld LLP for bringing this case to my attention.

Friday, December 19, 2014

THANKS AND BEST WISHES FOR THE HOLIDAYS TO YOU

 

 
HAPPY HOLIDAYS
 
FROM
 
TORT TALK.COM
(i.e., DAN CUMMINS)
 
 
[THANKS FOR YOUR READERSHIP AND SUPPORT.]
 
 
 
 
 
 
Source of image www.blakedorsten.com



Wednesday, December 17, 2014

"Did Your Attorney Refer You to that Doctor?"

A Dynamic Duo
(Could be on either side of the bar)

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel. 

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans.  Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, "whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege."  More specifically, the court found that whether an attorney referred his client to a medical provider for treatment can not be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.
President Judge Kenney also stated that any asserted privilege "failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process" at a trial of a personal injury matter.
The Court granted Defendant's Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

I send thanks to Attorney Joseph A. McNelis, III of the Willow Grove, PA  law firm of Palmer Barr for bringing this decision to my attention.

Source of imagewww.bitterlawyer.com

Tuesday, December 16, 2014

PA Supreme Court Upholds Assignment of Rights in Excess Bad Faith Claims


Tort Talkers may recall previous posts on the case of Allstate Ins. Co. v. Wolfe, in which the Pennsylvania Supreme Court accepted an issue to review on certification of a matter from the U.S. Third Circuit Court of Appeals who was seeking guidance on the question of the validity of assignment of bad faith claims by third party tortfeasors hit with excess verdicts to injured party plaintiffs seeking to recover on the amounts due over and above the tortfeasor's liability insurance policy limits.

As anticipated by many watching out for the Pennsylvania Supreme Court's decision in the case of Allstate Ins. Co. v. Wolfe, No. 39 MAP 2014 (Pa. Dec. 15, 2014)(Op. by Saylor, J.)(Castille, C.J, Dissenting Without Opinion), the Court ruled that a third party defendant tortfeasor hit with an excess verdict in a trial on personal injuries arising out of a motor vehicle accident may assign to the plaintiff his potential rights to sue his own automobile liability insurance carrier for a bad faith refusal to settle the case prior to trial.

The Supreme Court "conclude[d] that the entitlement to assert damages under Section 8371 may be assigned by an insured to an injured plaintiff and judgment creditor such as Wolfe.  Having answered the certified question, we return the matter to the Third Circuit."

Bad Faith is assignable?
"No kidding!"

Anyone wishing to review a copy of the Supreme Court's decision may click this LINK.

I send thanks to Attorney Tom Wilkinson, Jr. of the Philadelphia office of Cozen & O'Connor and Attorney Scott Cooper of the Harrisburg office of Schmidt Kramer for bringing this decision to my attention.



 


Monday, December 15, 2014

Dated UIM Rejection Form Signed by Insured Valid Even Though Insured Was Not the One Who Dated It

Can't Go For That

In a December 10, 2014 Memorandum Opinion out of the Federal District Court for the Eastern District of Pennsylvania in the case of Lieb v. Allstate Prop. And Cas. Ins. Co., NO. 14-4225 (E.D. Pa. Dec. 10, 2014 Rufe, J.), the court upheld the validity of a UIM rejection form even though the insured was not the one who dated the document.

According to the Opinion, this case involved a motor vehicle accident after which the Plaintiff secured a third party settlement and then pursued a UIM claim.

The UIM carrier rejected the claim on the basis of a valid rejection of UIM coverage form having been executed by the insured. 

The Plaintiff argued that the rejection form was void because the form was not dated by the insured, only signed.  According to the Opinion, the date was pre-printed on the form.

The Court held that that the rejection form was valid given that the form met all of the statutory requirements.

After reviewing the MVFRL, and in particular, the language of Section 1731, the Court noted that the statute only required that the form “must be signed by the first named insured and dated to be valid.” 

In other words, the statute does not require that the “form must be signed and dated by the first named insured.”

Accordingly, the court found that no requirement existed for the insured to actually date the form.  As such, since the UIM rejection form was signed by the insured, the Court held that the form was valid.
 
Anyone wishing to review this Memorandum Opinion may click this LINK.  The Court's companion Order can be viewed HERE.
 
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Friday, December 12, 2014

Year-End Pennsylvania Civil Litigation Reveiw Article

The below article of mine is an updated version of a year-end review article (with its original title) that was published in the November 25, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from the Publisher, American Law Media:





THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME:

A Review of Important Civil Litigation Cases and Trends in 2014

By

Daniel E. Cummins

 
As another year of Pennsylvania jurisprudence comes to an end, a look back reveals a number of the same issues and trends that have dominated the headlines in recent years.  As some say, the more things change, the more they remain the same.

 Right to a Fair Jury

Among the more notable cases from the past year is the Pennsylvania Superior Court’s decision in the  medical malpractice case of Cordes v. Associates of Internal Medicine, 87 A.3d 829 (Pa. Super. March 12, 2014) (en banc) appeal denied, 192 WAL 2014 (Pa. 2014), in which that court addressed the issue of the trial court's denial of the plaintiff’s strikes for cause during jury selection after the exhaustion of that party’s peremptory challenges.
 
According to the Opinion, the jury that resulted in the Cordes case included a husband of a patient of the defendant doctor, the daughter of a patient of the defendant doctor, and an employee of the parent medical corporation whose subsidiary employed the defendant doctor.  
 
The Opinions issued by the Cordes court all essentially agree with the notion that an important goal of jury selection is ensure not only a jury that is impartial in fact, but one that also appears to be free from the taint of partiality to a disinterested observer.  
 
In the end, it was held that the trial court erred in refusing, after the exhaustion of a party’s peremptory challenges, to strike for cause those jurors who had a close relationship to a Defendant doctor and/or were employed by the same company as that doctor despite those jurors’ assurances of impartiality.   As such, the defense verdict in this medical malpractice case was vacated and the case was remanded for a new trial.  As noted above, the Pennsylvania Supreme Court curiously denied allocatur.

Jury Instructions in Post-Koken Matters

Continuing on the topic of jury issues, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued the first detailed opinion in Pennsylvania outlining the type of jury instructions he would provide to a jury in a Post-Koken automobile accident matter involving an insurance company defendant.
 
In the case of Moritz v. Horace Mann Ins. Co.,  No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014), Judge Nealon reviewed cases from within and without Pennsylvania to formulate even-handed jury instructions informing the jury as to the involvement of the insurance company in the matter, explaining the absence of the tortfeasor driver in the context of this matter, and emphasizing that the jury’s focus should be upon an evaluation of the claims presented as opposed to the type of parties involved.

Expert Discovery

In 2014, the Pennsylvania Supreme Court's much-anticipated, but short-handed, decision on the issue of whether an attorney's communications with an expert are discoverable was handed down in the form of a 3-3 decision in the case of Barrick v. Holy Spirit Hospital, 91 A.3d 680 (Pa. April 29, 2014).  This split decision allowed the previous en banc Superior Court decision (8-1), found at 32 A.2d 600 (Pa. Super. 2011), to stand which held that communications between a lawyer and an expert witness are not discoverable.
 
On a related note, in August of this year, the amendments to Pa.R.C.P. 4003.5(a)(4) became effective.  These amendments to this expert discovery Rule incorporated the law of Barrick v. Holy Spirit Hospital by providing that such communications, as well as draft reports by experts,  need not be disclosed "except in circumstances that would warrant the disclosure of privileged communications under Pennsylvania law."

 Delay Damages

In a case of first impression, the Pennsylvania Superior Court ruled in Roth v. Ross and Erie Insurance Group, 85 A.2d 590 (Pa. Super. Feb. 7, 2014), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages after a verdict.
 
The Superior Court ruled that the wording of Rule 238 was clear and unambiguous in requiring the addition of delay damages to the verdict in all civil cases where a plaintiff seeks monetary relief for bodily injury.  Future medical expenses were, "by definition," part of the monetary relief for bodily injuries caused by the subject accident and, as such, should be included in the delay damages calculation.

 
Federal Court Jurisdiction Over Insurance Coverage Questions

The Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has described the case of Reifer v. Westport Insurance Corporation, 751 F.3d 129 (3d Cir. April 29, 2014 Van Antwerpen, J.), as being the Third Circuit Court of Appeal’s most important decisions on the exercise of federal jurisdiction in insurance coverage declaratory actions in recent times.

While the Third Circuit in the Reifer decision sympathized with the District Court’s “apparent frustration over the volume of such cases,” the Third Circuit stated that it was not aware of any authority to support a proposition that an insurance company was barred from bringing declaratory judgment actions on the issue of coverage in federal court. 
 
Rather, the Third Circuit Court stated that there is no bright line rule permitting the district courts to automatically abstain from hearing such cases unless there was a total absence of any federal legal question presented.  In this Reifer Opinion, the Third Circuit went on to clarify the factors that a district court should consider in determining whether or not to exercise jurisdiction.  As such, an upward trend of federal court declaratory judgment actions on the issue of insurance coverage can be anticipated. 

Another Short-Handed High Court

Another year ends with the Pennsylvania Supreme Court at less than a full complement of Justices again, which is an obscene situation in more ways than one.

Hopefully, the unfortunate recurrence of this situation of a short-handed court may serve as an impetus for the Court to adopt a plan whereby, whenever the Court has less than seven Justices, a randomly selected Commonwealth Court Judge could be selected to sit on an appeal of a Superior Court decision before the Supreme Court, and vice versa. 
 
Perhaps the time has also come to revisit the notion of a merit selection of Pennsylvania state court judges similar to the method utilized to select federal court judges.
 
In the meantime, Chief Justice Castille and the Supreme Court are going out with a bang with the Chief Justice’s important opinions issued in November in the case of Tincher v. Omega Flex, Inc., in which the court did not adopt the Restatement (Third) of Torts analysis for products liability cases but did alter the required analysis, and in the case of Zauflik v. Pennsbury School District, in which the Court upheld the constitutionality of the statutory caps protecting local governmental agencies in personal injury tort claims.

Cell Phone Use

The year 2014 brought forth a number of decisions on the viability of a punitive damages claim based upon a distracted  defendant driver’s use of a cell phone at the time of an accident.  The decisions show that this issue will be decided on a case-by-case basis.
 
In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.  The court reviewed essentially ruled that allegations of the mere use of a cell phone while driving, without more, does not amount to factual support sufficient to sustain claims of recklessness or for punitive damages. 
 
In contrast, in a recent Luzerne County decision in the case of Gugliotti v. O'Rourke, No. 2012-CV-15133 (C.P. Luzerne Co. 2014 Burke, P.J.), President Judge Thomas F. Burke, Jr., by Order only, denied a defendant's preliminary objections and allowed the plaintiff’s punitive damages claim to proceed in a cell phone/auto accident case.
 
According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted that he rear-ended the plaintiff's car while in the process of attempting to answer not one but two ringing cell phones in his possession.
 
Also, according to a June 13, 2014 article by Zack Needles in The Legal Intelligencer entitled "Judge OKs Punitives Claim for Cellphone Use in  Crash Case," Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted an unopposed motion to amend a Complaint filed by a plaintiff in the case of Simmons v. Lantry to add punitive damages claims in a case involving a tractor trailer driver who was allegedly distracted by his cell phone use at the time of an accident.

Collateral Estoppel Against UIM Claim After Third Party Resolution

 Another hot issue in the past year that troubled litigators was the repeated application of  the doctrine of collateral estoppel by Pennsylvania courts preclude a plaintiff from proceeding on additional claims arising out of the same accident.
 
In his January 15, 2014 Opinion in the case of Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.),  Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine.  In this case, the plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first and the arbitrator entered an award that was less than the tortfeasor’s liability limits.
 
Similarly, in USAA v. Hudson, 101 Del. 154 (C.P. Del. Co. Feb. 21, 2014), the Delaware County Court of Common Pleas ruled that the collateral estoppel doctrine precluded a subsequent UIM claim for the same accident when the same issue was previously litigated and an award was entered for less than the tortfeasor’s liability limits.
 
In his decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, 8 F. Supp. 3d 666 (E.D. Pa. March 26, 2014 Joyner, J.), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side where the agreed upon high parameter was below the third party liability limits and where the arbitration award was entered below that high parameter.
 
In her decision in the Post-Koken case of Gallagher v. Ohio Casualty Ins. Co., No. 13-0168 (E.D. Pa. April 9, 2014), Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District went even further and found that, while a non-binding ADR result did not amount to collateral estoppel, the first settlement nevertheless served to preclude a follow-up UIM claim for the same accident.
 
In a slightly different collateral estoppel context raised in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit.   More specifically, the plaintiff was precluded from seeking a recovery for additional injuries in a lawsuit where it was judicially determined in the prior worker’s compensation matter arising out of the same accident that he only sustained cervical spine injuries.

 A Look Ahead

Several important decisions are anticipated in the year ahead.  First, litigators await a decision from the Pennsylvania Supreme Court in the criminal court case of Commonweath v. Koch on the proper authentication and admissibility of text messages may serve as the seminal case on the admissibility of other forms of digital and/or social media evidence.
 
The auto law bar is also anxiously awaiting the Pennsylvania Supreme Court’s decision in the case of  Allstate Prop. and Cas. Co. v. Wolfe, No. 23 MM 2014 (Pa. April 24, 2014) on the issue of whether “[u]nder Pennsylvania law, can an insured tortfeasor assign his or her bad faith claim against an insurer, under 42 Pa.C.S. § 8371, to an injured third party?"
 
These anticipated decisions, as well as expected lower court decisions in Post-Koken auto accident matters and social media discovery issues should keep matters interesting for litigators in the year ahead.

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


Wednesday, December 10, 2014

Another Appellate Criminal Court Decision With Civil Litigation Implications: A Question Can Be a Hearsay 'Statement'

The Pennsylvania Superior Court has handed down a criminal court decision which could have implications in the trial of a civil litigation matter.  

In a case of first impression entitled Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.   

According to the Opinion, the Defendant sought to have statements made by a victim to his grandmother shortly before the victim was shot and killed ruled as inadmissible hearsay.  Some of the statements at issue were in the form of a question by the victim. 

In its Opinion, the Pennsylvania Superior Court noted that, while the issue raised by the Defendant had been addressed by many other courts, no consensus had been reached.  Also, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had not yet addressed the issue.

Some of the other courts that have addressed the issue have taken the position that a true question or inquiry is, by the nature of itself, incapable of being proved either true or false and, therefore, cannot be offered ‘to prove the truth of the matter asserted’ such that it does not constitute a “hearsay statement” by definition.  

The Pennsylvania Superior Court went in a different direction and instead elected to follow those jurisdictions that have held that a question can be considered to be hearsay if it contains an implied assertion offered for the truth of the matter.   The court noted that “[t]his approached ensures that the substance of an utterance, not its grammatical form, controls whether the utterance is admissible."

Accordingly, the court ruled that, when a question includes an implied assertion, the question constitutes a statement of purposes of Pennsylvania Rule of Evidence  801(a).   If such a question/statement is offered for the truth of the matter asserted, it is hearsay and generally inadmissible unless an exception to the hearsay rule is implicated.

Obviously, this Pennsylvania appellate court ruling on the Hearsay Rule under the Pennsylvania Rules of Evidence could have an impact in civil litigation matters and, as such, is reported here on Tort Talk.

Anyone wishing to review this Commonwealth v. Parker decision, may click this LINK.