Monday, March 31, 2014

Decision by Judge Minora Expands the Law of Negligent Liability for a Suicide

In his recent March 19, 2014 Opinion (31 pages) in the case of Hudak-Bisset v. County of Lackawanna et al., No. 2007-CV-2401 (C.P. Lacka. Co. March 19, 2014 Minora, J.), Lackawanna County Judge Carmen D. Minora addressed the unfortunate issue of whether a Plaintiff's Motion to Amend a Complaint should be granted to allow for the inclusion of Wrongful Death/Survival Act claims where the death of the Plaintiff resulted from a suicide that was allegedly brought on by the decedent's pain from a motor vehicle accident.

Judge Carmen D. Minora
Lackawanna County
Judge Minora more specifically describe the matter as involving the "vexing and complicated question of whether a Plaintiff ought to be allowed to recover damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the Tortfeasor/Defendant."  Op. at p. 3. 

The court noted that the resolution of this issue was found to be particularly vexing in light of the fact that it has been addressed on previous occasions in the context of a wide variety of factual scenarios subjected to different standards of review in the case law such as the legal standards applicable to preliminary objections, motions for summary judgment, and motions to amend to name a few.

After reviewing the procedural  law of Pa.R.C.P. 1033 which allows for the liberal construction of requests to amend pleadings and analyzing the substantive law with a  a "Palsgraf-like" assessment of the extent and duration of the duty and proximate cause which the alleged tortfeasor defendant owed the plaintiff, Judge Minora ultimately digressed from a line of cases to hold that the amendment should be allowed.

Judge Minora differed with a line of cases dating back to 1989 that have generally ruled that a  wrongful death action can not be based upon a suicide event as a suicide was viewed as an independent intervening act that is considered so extraordinary as to be deemed essentially unforeseeable to the tortfeasor.  That line of cases therefore held as a matter of law that the tortfeasor's negligence could not be the proximate cause of a later suicide since such injuries were not foreseeable.  See McPeake v. William T. Cannon, Esq., P.C., 553 A.2d 439 (Pa.Super. 1989).

With his ruling in this Hudak-Bisset case, Judge Minora can not be said to be yet another judge who "rigidly follow[s]" the McPeake line of cases.  Rather, Judge Minora relied in part on retired Lackawanna County Judge S. John Cottone's decision in the case of Mackin v. Arthur J. McHale Heating & Air Conditioning Co., Inc., 76 D.&C.4th 544 (C.P. Lacka. Co. 2005) to rule differently.  Judge Cottone ruled in Mackin, noted to possibly one of the only decisions on record that did not follow the McPeake rule of law, that the above-referenced line of cases on this issue of non-liability for a suicide on the grounds that the injuries were totally unforeseeable was too "restrictive" and that, in some factual contexts, a jury should be allowed to assess whether or not a plaintiff has met their burden of proving the element of proximate causation.

Judge Minora distinguished the McPeake decisions on its facts, on public policy grounds, by the legal standard of review applied (preliminary objections in McPeake versus a liberal motion to amend a Complaint standard in this Hudak-Bisset case), and by the fact that the defendant in this Hudak-Bisset case before him was a common carrier bus company who, by law, is held to the highest degree of care in negligence actions.  Judge Minora was also influenced in this matter on the proximate causation question by the fact that the decedent left a suicide note indicating that the decedent had ended his life in part due to the inability to continue on with the chronic ongoing pain caused by the subject accident with the defendant.

Judge Minora also pointed to other lines of cases on other important issues that have been allowed to be expanded as part of the living law such as, for example, the slow but steady expansion of the ambit of liability in negligent infliction of emotional distress claims from the "impact" rule, to the "zone of danger" rule, to the "bystander" rule and, most recently the further expansion of that doctrine in the context of medical malpractice cases.

Judge Minora reasoned that, in a similar fashion in this Hudak-Bisset case, the Plaintiff was seeking to amend the Complaint to assert wrongful death and survival claims in the context of a suicide case despite McPeake and its progeny.  The Plaintiffs were proceeding on the grounds that the evolution of the law may allow for a finding that claims of this type and in this context may prove to be valid in the end.  Concisely, the Plaintiffs were fighting for the basic right to "test the limits of the existing law and [to] be allowed to plead [the claim] as a developing area of the law." Hudak-Bisset at p. 15.

Judge Minora also applied on the five part test enunciated by the Pennsylvania Supreme Court in the case of Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), to determine whether any duty exists ((1) the relationship between the parties, (2) the social utility of the actor's conduct, (3) the nature of the risk imposed and the foreseeability of the harm incurred, (4) the consequences of imposing a duty upon the actor, and (5) the overall public interest in the proposed solution."

The court ruled that the Althaus test supported the finding of a duty under the facts presented and in particular, the facts intended to be pled of an alleged suicide note allegedly tying the suicide to the Defendants' alleged negligence.  The court in Hudak-Bisset also pointed out the evolution of jury instructions and verdict slips from the use of the term "substantial factor" to "factual cause" would also support a finding of possible liability in this context, i.e. was the negligence of the tortfeasor a factual cause of the decedent's suicide under this set of facts?"

Accordingly, after revisiting the liberal standard of review applicable to motions to amend pleadings under Pa.R.C.P. 1033, Judge Minora ultimately ruled that, under the facts plead, the Plaintiff's right to try to push for an expansion of the law should be honored. 

As such, the motion to amend the Complaint was granted.

Anyone wishing to read Judge Minora's Opinion in Hudak-Bisset may click HERE.

To review a Tort Talk post on other cases addressing liability under Pennsylvania law relative to a suicide, click on this LINK.

Another Court Rules That Third Party Binding Arbitration Award Below Liability Limits Collaterally Estops Subsequent UIM Claim

In his recent decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, NO. 130-CV-04693 (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 with a high parameter below the third party liability limits and where the arbitration award was entered below that high parameter.

The court ruled in this fashion even though there was an agreement between the parties in the third party liability case that the binding arbitration was not intended to preclude any subsequent proceedings.

According to the Opinion, the liability limits on the third party side were $2.25 million dollars.  The high parameter agreed between the parties for the binding arbitration was $1.35 million.  The arbitration award entered was for $680,000.00.

The Harvey Court read the binding arbitration agreement as only pertaining to the award being limited by the high parameter.  The third party proceedings and the award entered was found to be still subject to the collateral estoppel doctrine when the award entered was below the high. 

Judge Joyner noted that, to avoid the effects of the collateral estoppel doctrine, the parties could have easily written into the binding high/low agreement a proviso to the effect that "the binding high figure is not intended to have any preclusive effect."

The court's ultimate rationale was that since the insured's recovery was finally determined in a binding prior proceeding not to exceed the liability insurance policy limits held by the third party, the UIM claim was collaterally estopped.
Judge Joyner's decision in Harvey can be viewed HERE and the accompanying Order HERE.

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

Another UIM Collateral Estoppel Opinion:

To review a Tort Talk post on a state court of common pleas decision along the same lines by Judge Mark Bernstein out of Philadelphia County holding that an injured party was collaterally estopped from proceeding on a UIM claim after the entry of an award less than the liability limits in a third party binding high/low arbitration click HERE

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Friday, March 28, 2014

Judge Wettick: Attorney-Client Privilege Does Not Continue For Defunct Companies

In his recent decision in the case of Red Vision Systems, Inc. et al. v. National Real Estate Information Services, L.P, et al., No. GD - 13 - 008572 (C.P. Allegh. Co. Feb. 26, 2014 Wettick, J.), Judge Wettick dealt with the novel issue of the application of the attorney-client privilege in the context of a request for the production of documents propounded upon a dissolved/non-operating company. 

After a thorough review of the scope of the attorney-client privilege, Judge Wettick ultimately ruled that the privilege did not extend to corporations that were no longer in business.  Accordingly, a former in-house counsel for several defunct companies was ordered to turn over documents in discovery related to status of the companies' assets.

Judge R. Stanton Wettick
Allegheny County
Judge Wettick rejected an effort to compare the situation of a dissolved corporation to that of a deceased person -- the attorney-client privilege is deemed to continue once a person passes away.  The court noted that the same concerns of confidentiality do not exist in the corporate setting as corporate officials can not expect the same level of privacy or confidentiality once a corporation goes out of business as the new management of the company or a trustee in bankruptcy may be entitled to access to the information at issue.

It is noted that Judge Wettick's decision was recently appealed up to the Superior Court.

Judge Wettick's decision may be viewed HERE.

I send thanks to Attorney Roy Leonard of the Stonecipher Law Firm in Pittsburgh for bringing this case to my attention.

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Wednesday, March 26, 2014

Latest UIM Sign Down Decision Favors Carrier's Position

One of the latest UIM sign down cases was handed down by Judge C. Darnell Jones II of the Federal District Court for the Eastern District of Pennsylvania on March 21, 2014 in the case Henderson v. Charter Oak Ins. Co., No. 12-4363 (E.D. Pa. March 21, 2014 Jones, J.)

Henderson involved the sign down issue in the context of UIM coverage under a commercial policy.  According to the Opinion, the insured executed a proper sign down form back in 2008-09 under 75 Pa.C.S.A. § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) under which the UIM coverage of $1 million was reduced to $35,000. 

Thereafter, in 2010-11, the sign down forms were not signed again and the only thing on the election form was that the insured wanted the minimum UIM coverage.  Testimony from an underwriter confirmed that the forms only applied from year to year.   

The Plaintiff insured argued that there should be $1 million in UIM coverage under the policy because the form was not executed properly in 2010-11 and his accident occurred during that time period.  The insurance company asserted that there was only $35,000 in coverage under the rationale that once a sign down form is executed, that form applied over the entire lifetime of that policy.

Relying upon the Pennsylvania Supreme Court opinion in Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007), the Federal Eastern District Court ruled that the insured was only entitled to $35,000 in UIM coverage regardless of the testimony offered up by the underwriter witness as there was no written request for higher coverage.  

The Henderson court noted that the Pennsylvania Supreme Court’s decision in Blood supported the decision that a sign down form is good through the entire lifetime of the policy unless the company receives a written request for higher coverage. 

Anyone wishing to review a copy of this Henderson decision may contact me at

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

Federal Middle District Court Addresses Punitive Damages Issues in Trucking Accident Case

Federal Middle District Judge Sylvia H. Rambo recently issued two (2) Opinions on the issue of punitive damages in a trucking accident litigation entitled to Stemrich v. Oleh Zadiyaka, No. 1:12-CV-01409 (M.D. Pa. 2-21-14 Rambo, J.).  

This matter arises out of a trucking accident that occurred on September 28, 2011 on Interstate 83 North when the Defendant truck driver allegedly rear-ended the Plaintiff’s vehicle on the highway.   This allegedly caused a chain reaction accident with two (2) vehicles ahead and allegedly resulted in injuries to the Plaintiff.  

In one of the Opinions, Judge Rambo denied the Defendant’s Motion for Partial Summary Judgment on the issue of punitive damages.

With regard to the Motion for Partial Summary Judgment on the punitive damages issue, the Defendant asserted that its Motion should be granted as there was no evidence of that suggested that the Defendant acted recklessly.

After reviewing Pennsylvania law with respect to reckless conduct and punitive damages, the court found issues of fact, including expert report from the Plaintiff, all of which served to defeat the motion.   The court additionally noted that the dispositive issue presented required an assessment of the Defendant’s state of mind at the time of the accident under which circumstances the law held that a court should be reluctant to grant a Motion for Summary Judgment as a determination of that issue largely depends upon the credibility of the witnesses testifying as to their own states of mind.   As the court found that the determination of whether the Defendant truck driver subjectively appreciated the risk of harm involved or whether he consciously disregarded that risk all required an assessment of the Defendant truck driver’s credibility, the court left that issue for the jury to decide.

The court also allowed the claim for vicarious liability of a trucking company for punitive damages to stand and proceed to a jury.  

Any one wishing to review the Court's decision denying the Motion for Partial Summary Judgment may click this LINK.

In a separate Opinion in the same matter, Judge Rambo granted the Plaintiff’s proposed method of bifurcation in conjunction with a punitive damages claim.    More specifically, the Plaintiff argued that the trial court should be bifurcated into two segments:  first, the jury should consider whether the Defendant is reliable for the injuries alleged, whether the Defendants’ conduct was recklessly indifferent, and the amount of compensatory damages to be awarded; and second, the jury should then be permitted to consider the amount of punitive damages to award, if any.  
In so ruling, the court rejected the Defendant’s request that the trial be trifurcated into three segments:  first, a jury consideration of whether the Defendants were liable; second, a jury consideration as to the extent of the Plaintiff’s alleged injuries and the amount of compensatory damages; and third, a jury consideration of whether punitive damages were appropriate.  
Anyone wishing to review the Court's decision on the bifurcation of trial issue may click this LINK
It is noted that Plaintiff’s case is being handled by Michael A. O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania.

Sunday, March 23, 2014

Federal Court Forum Shopping Over Non-Resident Corporate Defendants Coming to an End?

According to a recent March 4, 2014 Pennsylvania Law Weekly article by Attorney Will Sylianteng of the WES Litigation Group LLP entitled “Does Daimler Mark the End of Forum Shopping?”, the recent United States Supreme Court decision in the case of Daimler AG v. Baumen, 571 US ___ (2014), may serve to end the practice of forum shopping against corporate Defendants and others.  

As noted in Attorney Sylianteng’s article, the Due Process Clause of the 14th Amendment to the United States Constitution limits the rights of states to exercise personal jurisdiction over non-resident Defendants.   The limitation is based upon the nature and quality of the Defendant’s contacts with the forum state.   The courts have held that a non-resident Defendant’s contacts could possibly give rise to either specific or general personal jurisdiction over that Defendant. 

Attorney Sylianteng notes that, traditionally, the exercise of specific jurisdiction over a Defendant would be proper if the underlying conduct upon which the suit is based occurred within the forum state.  

In contrast, under general personal jurisdiction concepts, a broader stance was taken and a forum state would be permitted to exercise jurisdiction over a non-resident Defendant, even for acts or conduct that did not occur within the forum state, if the non-resident Defendant had “continuous and systematic” contacts in the forum state.  

According to Attorney Sylianteng, in its decision in Diamler, the United States Supreme Court limited the “continuous and systematic” tests to cases involving specific jurisdiction only.  Accordingly, it appears that the continuous and symptomatic contacts argument can no longer be utilized in a case when general jurisdiction over a non-resident corporate defendant is being sought.  

Ultimately, in the post-Diamler world, it would appear that only a limited number of states could exercise general jurisdiction over a corporate Defendant.   Those states would be the state of the corporations and corporation and, if different, the state within which the corporation has its principal place of business.   Another possible place in which a non-resident Defendant could be brought to court would be under specific jurisdiction principles where the underlying tortious act occurred within a particular forum state. 

In his article, Attorney Sylianteng anticipates increased litigation over the issue of personal jurisdiction in cases involving non-resident Defendants, particularly where the underlying incident occurred at a location outside of the state within which the lawsuit is brought.  

Anyone wishing to review Attorney Sylianteng’s article in the Pennsylvania Law Weekly may click on this LINK.

Here's a LINK to the Daimler v. Bauman decision itself.


Source:  Pennsylvania Law Weekly, 37 PLW at 196 (March 4, 2014). 

Wednesday, March 19, 2014

Heard of Any Recent Facebook Discovery or Post-Koken Cases of Note?

Have you heard of any recent Facebook Discovery decisions or Post-Koken decisions of note?  Care to share a copy for publication here on Tort Talk?

Whether you are on the Plaintiff's side or the Defense side in the civil litigation arena, sharing such decisions with the bar at large will help all involved, including by way of notifying your peers on your side of the bar of adverse decisions.

Monday, March 17, 2014

ARTICLE: A St. Patrick's Day Parade of Proverbs

Here's a "replay" of a previous article of mine in the spirit of St. Patrick's Day:


Daniel E. Cummins

Pennsylvania Law Weekly
March 10, 2008

With the St. Patrick’s Day celebration of all things Irish many famous Irish proverbs come to mind. As the Irish have noted, “Proverbs can not be contradicted.” Applying Irish proverbs to the practice of law can be enlightening for as Irish playwright John Millington Synge once noted, “There is no language like the Irish for soothing and quieting.”

A closed mouth—a wise head.

Although the Irish are known for the gift of gab, they also recognize that sometimes, the less said the better. This can be seen in the practice of law in judicial opinions where judges write concisely in an effort to streamline their opinion on the issues presented and avoid the possibility of inadvertently raising appellate issues.

Litigators may benefit from speaking concisely when addressing the court or a jury. Another Irish instruction is to “Say little, but say it well.” For example, it is often recommended that trial counsel keep objections to a minimum so as not to irk the trial judge or appear as if one is attempting to hide something of importance from a jury. As the Irish also say, “A silent mouth never did any harm.”

Conversely, another wise Irish proverb is that “A loud voice can make even the truth sound foolish.” Bombastic and arrogant presentations by attorneys cause the immediate perception that what is being said is either devoid of merit or, at best, suspect. Efforts at tempering one’s argument in accordance with the applicable law and avoiding personal attacks on opposing counsel will only serve to add credibility to the position being advocated.

A good beginning is half the work.

Whether it be the first words spoken to a judge or jury or the opening sentences of a brief, the beginning of one’s presentation can make or break a case. Overworked judges reading hundreds of briefs and bored jurors will appreciate the fresh notion of arguments that quickly get to the point and remain there.

In terms of oral presentation to a judge or jury, first impressions last forever. The crux of an argument or the theory of the case should comprise the first words out of an attorney’s mouth. A concise description of the dispute presented and why fairness dictates a ruling in favor of one’s client should be forcefully advocated from the get-go.

With brief writing, the typical generic opening paragraphs providing a boring statement of the facts should be eschewed in favor of a more pointed story comprised of the impact facts crucial to the issue presented followed by a concise recitation of the reasons why the court should rule in one’s client’s favor.

The goal of the initial paragraphs of a brief should be to grab the attention of the reader and direct it immediately to the position advocated. Simply put, interesting writing is persuasive writing.

If a rogue deceives me once, shame on him.
If he deceives me twice, shame on me.

Unfortunately, at various times in one’s practice, attorneys have to deal with another attorney that, to use the Irish vernacular, can be described no better terms than as a scoundrel.

When dealing with such attorneys for the first time, one may make a mistake or let their guard down providing an opportunity for the other attorney to take an untoward advantage in the case. But as Irish novelist James Joyce once noted, “Mistakes are the portals of discovery.” Once it is discovered through a mistake that opposing counsel can not be trusted to play by the rules or act with professional courtesy, one can take steps to prevent the situation from occurring again.

It is unfortunate that attorneys can not always rely upon the courts for relief from vexatious and dilatory tactics of a recalcitrant opposing counsel. While such weasel-like attorneys may treat opposing counsel in a reprehensible fashion, they are usually wise enough to appear before the court in the character of Eddie Haskell, the bully from the old Leave It To Beaver television show, who always took on an oily obsequious manner whenever faced with an authority figure in order to stay out of trouble.

Judges have to be even-handed when dealing with such disputes and may not always be in a position to properly address the tactics of such an opposing counsel. One should rest assured, however, that these types of attorneys routinely appear before the court on repetitive and petty issues such that their reputation for vexatiousness becomes engrained and, hopefully acknowledged and punished.

What this Irish proverb suggests is that an attorney should keep negative tactics of a particular opposing counsel in the memory bank and share such information with other attorneys so as to limit the ability of the attorney to engage in improper or unnecessary behavior.

As sung by legendary Irish rocker Bono of U2 in the song “Acrobat,” “Don’t let the bastards grind you down.”

Remember, even if you lose all, keep your good name,
for if you lose that, you are worthless

An oft indicated principle or truth is that an attorney’s word is his bond. The Irish also proverbially quip that “A promise is a debt.” Developing a reputation for being good for one’s word and keeping promises is a virtue that can carry an attorney through his career above all else in terms of relations with the court and opposing counsel.

Without a doubt, a lawyer’s reputation precedes his interactions with all in the practice. When picking up new files, lawyers will typically first look to see who is on the other side and if that person is unknown, efforts will be made to ascertain the reputation of that attorney and how he or she handles cases.

Day in and day out, thoroughness and integrity in preparation and presentation along with punctuality and professional courtesy are the important building blocks of a solid reputation in the practice of law. Adherence to these positive characteristics will not only serve to enhance one’s stature among fellow members of the bar and the judiciary but may also allow one to secure an even more favorable result for one’s client.

If you lie down with dogs, you’ll rise with fleas.

Poor cases are often referred to in the practice as “dogs.” In developing one’s practice, while it may be understandable that an attorney may take on a few cases having difficult liability hurdles or questionable damages, it may be wise for counsel to avoid a proliferation of these cases such that one’s office turns into a dog pound.

Taking on too many troublesome cases can affect one’s reputation and the fleas from the dog cases might not only leech onto the attorney but may even possibly carry over and affect the value of the other more profitable cases in the office. As the great Irish poet William Butler Yeats once wrote, “But was there ever dog that praised his fleas.”

Accordingly, care should be taken in accepting new clients As the Irish also say, “If you put a silk dress on a goat, he is still a goat.” In other words, even the best of attorneys may not have the skills to put the shine on a tarnished case of little or no value. Attorneys may be wise to protect their reputations by refusing such cases in the first instance, or at the very least, referring them out for others to handle.

Never put off til tomorrow what you can do today.

As a catalyst for unnecessary stress, procrastination may be the worse enemy of an attorney. By continually putting off job tasks until the last moment, attorneys may be forced to scramble to complete a work product, such as a brief, and the end result is usually sub-par.

In keeping with the best possible service the client is entitled to by virtue of their entrusting their cause to an attorney, the better practice may be to look ahead to the following months deadlines and, wherever possible, immediately beginning the first drafts of any briefs, discovery requests or responses, or other written materials. In this manner, the work product can be started with sufficient time left to repeatedly revise the work product so as to strive to put out the best effort on behalf of the client.

If you dig a grave for others, you might fall into it yourself.

Stated otherwise, what goes around, comes around. The practice of law as a whole is better served by attorneys who assist one another and provide heads ups to one another of potential pitfalls.

The Rules of Professional Conduct, the Code of Civility and the PBA Working Rules of Professionalism are replete with instructions on professional courtesy. Periodic review of, and adherence to, these rules of professional conduct and courtesy can only serve to improve one’s reputation and benefit the practice as a whole.

Obviously, efforts should always be made to treat others with the respect, kindness and courtesy we would hope for in return. As the Irish also warn, “Be kind to those you meet as you rise, you may pass them again as you fall.”

A light heart lives long.

As overwhelming as the practice of law can be, with files and clients on one’s mind essentially 24 hours a day and seven days a week, it is important to attempt to maintain a balance between one’s work life and one’s life outside of work. The stress of the practice can weigh heavily on the heart over the years.

Directing all of one’s energy towards the practice of law and neglecting other aspects of life outside of the practice can quickly lead to a burnout or a disillusionment with the profession.

The great Irish dramatist George Bernard Shaw was once quoted as saying, “A day’s work is a day’s work, neither more nor less, and the man who does it needs a day’s sustenance, a night’s repose and due leisure, whether he be a painter or ploughman.”

Periodically getting away from the practice of law by vacationing or otherwise for periods of rejuvenation and a rediscovery of one’s sense of self and personal interests will inevitably make life more enjoyable and provide for a fuller existence. An attorney with a more balanced life may have a better physical and mental status and thereby be in a position to better serve his or her clients.

As this old Irish proverb proves, quality time spent with family, reconnecting with old friends, exercising, or engaging in long lost hobbies may not only add life to one’s years but also years to one’s life. May you live as long as you want, and never want as long as you live.

Daniel E. Cummins, Esquire is a partner with the Scranton, Pennsylvania civil litigation firm of Foley, Comerford & Cummins. Attorney Cummins focuses his practice on insurance defense and coverage matters all across Northeastern Pennsylvania.

This article is reprinted here, with permission, from the March 10, 2008 issue of the Pennsylvania Law Weekly (c) 2008 Incisive Media US Properties, LLC, now known as American Law Media. The title of the article in the Pennsylvania Law Weekly was "A Parade of Proverbs." Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate this article.

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2014 Top Rated Lawyer in Litigation

I am pleased to announce that, in addition to my recent AV Preeminent Rating, American Lawyer Media and Martindale-Hubbell™, recently advised me that they had selected me as a ‘2014Top Rated Lawyer in Litigation’ with respect to my handling of insurance defense matters in all of the counties that make up the Northeastern quarter of Pennsylvania.

This recognition follows on the heels of a 2013 recognition as a '2013 Top Rated Lawyer in Insurance Law.'

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Wednesday, March 12, 2014

Judge Nealon of Lackawanna County Covers Wide Variety of Discovery Issues In First Party Benefits Litigation

In his recent decision in the case of Sharp v. Travelers Personal Security Ins. Co., No. 12 CV 6483 (C.P. Lacka. Co. March 7, 2014 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a variety of discovery issues in a first party benefits case.

The Court pointed out that a bad faith claim was not filed in this matter within the two year statute of limitation.  Of note in this regard in this case was the court's handling of the issue of whether the insured's assertion of a breach of the implied contractual duty of good faith and fair dealing served to transform the breach of contract claim into a bad faith claim, thereby entitling the insured to secure certain bad faith discovery from the carrier such as reserves information, adjusters' personnel files, the UIM claims file, etc.

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon ruled that there was no such transformation and, as such, the requested discovery would not be permitted.

However, other discovery such as amounts paid by the carrier to peer review doctors,  the carrier's first party benefits claims manuals, as well as information on other claims asserted against the carrier where the first party benefits limits were $100,000.  The court found that these items of discovery were relevant to the Plaintiff's efforts to prove its claims under the Unfair Trade Practices and Consumer Protection Law.

The rule gleaned from a review of this case is that, if you want bad faith discovery, a bad faith claim must be asserted.

Anyone wishing to review a copy of this case may click this LINK.  Judge Nealon's 41 page Opinion covers many of the important cases and issues relevant to a litigation over first party benefits.

Federal Middle District Court Judge Mannion Applies Restatement (Third) in Products Liability Case

In his recent decision in the case of Varner v. MHS, Ltd.,No. 3:11-2138 (M.D. Pa. March 6, 2014, Mannion, J.), Judge Malachy E. Mannion applied the Restatement (Third) in a products liability action arising from an incident during which the Plaintiff was injured at work while using a nylon strap or sling to lift heavy equipment.   The nylon strap allegedly broke and heavy equipment allegedly contacted the Plaintiff’s person and allegedly resulted in a personal injury.  

After the completion of discovery, the defense filed a Motion for Summary Judgment against the Plaintiff’s claims for strict liability, negligence, and breach of warranty.   The Defendant argued that summary judgment was appropriate as the nylon sling was not an unreasonably dangerous product, that the Defendant gave adequate warning, and that the Plaintiff’s misuse of the product was the cause of the Plaintiff’s accident.

In response, the Plaintiff argued the “malfunction” theory of products liability and additionally asserted that the Defendant failed to properly warn of possible dangers with the use of the strap.  

Judge Malachy E. Mannion
As noted above, Judge Mannion applied the Restatement (Third) to the Motion for Summary Judgment presented.  Ultimately, the Court granted the Defendant’s Motion for Summary Judgment on the Plaintiff’s claim for a design defect, failure to warn, and breach of the warranty of fitness for a particular purpose.  

However, given the issues of fact and credibility issues existing, the court denied summary judgment on the court’s claims based upon an alleged manufacturing defect and/or an alleged breach of the warranty of merchantability .   Anyone wishing to review a copy of this case may click this LINK.

This case has been added to the Tort Talk Products Liability Scorecard which can always be accessed by this LINK or by going to and scrolling down the right hand column to click on the link to the Scorecard there.
A review of the Tort Talk Products Liability Scorecard confirms an ongoing debate and split amongst various Pennsylvania Courts on whether the Restatement of Torts (Second) or (Third) should continue to be applied in products case.

We continue to await the Pennsylvania Supreme Court's latest pronouncement on this important issue in the Tincher v. Omega Flex case.  

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Thursday, March 6, 2014

Judge Nealon of Lackawanna County Finds No Waiver of Immunity by Employer Through Indemnification Clause

In his recent February 25, 2014 Opinion and Order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of an employer's waiver of tort immunity by way of an indemnification clause in a contract in the case of Fritz v. Versacold Logistics, LLC, et al., No. 2012 - CV - 700 (Lacka. Co. Feb. 25, 2014 Nealon, J.).

In this premises liability slip and fall personal injury matter, a commercial landowner defendant joined its trucking company contractor as an additional defendant based upon an indemnification clause in their motor carrier transportation contract.

The additional defendant trucking company filed a motion for summary judgment arguing that it was immune from liability on the grounds that the plaintiff was its employee at the time of the subject incident and had received worker's compensation benefits from the additional defendant's worker's compensation carrier.  The additional defendant trucking company also asserted the indemnification clause in the contract did not contain language that was specific enough to avoid the immunity afforded to the trucking company under the Worker's Compensation Act.

The commercial landowner countered the additional defendant's motion for summary judgment with an argument that there were issues of fact as to the identity of the plaintiff's employer, as well as by arguing that the indemnification provision in the parties' contract enabled the landowner to seek contribution or indemnity from the trucking company.

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon granted the additional defendant trucking company's motion for summary judgment after finding that judicial admissions in the landowner's pleadings had established that the plaintiff was indeed an employee of the trucking company. 

The court also reviewed the law on the validity of indemnification clauses and found that the language in the clause at issue in this matter did not satisfy the requirements under the Worker's Compensation Act to allow for a waiver of the immunity afforded by that Act.  More specifically, the contract language of the clause at issue did not expressly refer to tort claims by the additional defendant's employees resulting from the landowner defendant's negligence.

Anyone wishing to review Judge Nealon's Opinion in the Fritz case may click this LINK.

For other decisions by Judge Nealon on the validity of an indemnification clause, click HERE and HERE.

Source of

Tuesday, March 4, 2014

Are Early Post-Accident Investigation Materials Gathered by Trucking Companies Prior to Litigation Protected by Work Product Privilege?

It is well known that trucking companies often act quickly to investigate accidents involving their vehicles to preserve evidence in the event litigation arises in the future.  Questions arise as to whether the information gathered in such early investigations is protected from discovery by the attorney work product privilege in later lawsuits.

Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).

The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed.  In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.

In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.

In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."

Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.

In  applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.

The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable.   The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.

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

Source:  Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).