Northeastern Pennsylvania Attorney Malcolm L. MacGregor Takes Over as President of the Pennsylvania Association for Justice

Malcolm L. MacGregor, Esq.

In notable legal news out of Northeastern Pennsylvania, Attorney Malcolm L. MacGregor of the Scranton Law Firm of McDonald & MacGregor was installed as the President of the Pennsylvania Association for Justice at their recent Annual Meeting at the Bedford Springs Resort in Bedford Springs, PA.  Attorney MacGregor is also currently ably serving as the President of the Lackawanna Bar Association.

Congratulations to a great lawyer and a great person.  Both of those organizations are lucky to have him at the helm.

LINK to the One Where the Plaintiff Rear-Ended the Defendant and Sued and Court Entered Summary Judgment For Defendant

Tort Talkers may recall that I highlighted the case of Marchese v. Jacobs out of Lycoming County - you know, the one where the Plaintiff motorcyclist rear-ended the Defendant and then sued the Defendant and the Defendant secured a summary judgment.

Many were interested in the case and a number sent me a copy to disseminate.  Here is a LINK to the Marchese decision if you'd like to read it.

I send thanks for sending me a copy or a link to the case to Gary Weber of the Williamsport office of Mitchell Gallagher, Anthony J. Gabriel of the Harrisburg office of Thomas, Thomas & Hafer, Attorney Joseph Kulesa of Mount Pocono, Attorney Walt McClatchy, Jr. out of Philadelphia, and another who wished to remain anonymous.

Summary Judgment for Defendant Who Was Rear-Ended by Plaintiff

In a recent Lycoming County Court of Common Pleas decision in the case of Marchese v. Jacobs, PICS Case No. 14-0795 (C.P. Lycoming Co. May 1, 2014, Anderson, J.), the court granted summary judgment in favor of a Defendant driver who was rear-ended by the Plaintiff’s motorcyclist.

[Yes, you read that correctly - a plaintiff rear-ended a stopped vehicle and then sued that person - where there's a will, there's a way].

According to the Opinion, the Plaintiff was riding with other motorcyclists and following the Defendant’s car. The Defendant stopped because the car in front of him had stopped while waiting to turn left. The Plaintiff then collided with the Defendant’s stopped vehicle.

In a Motion for Summary Judgment, the Defendant argued that the accident was solely caused by the Plaintiff’s negligence in failing to keep an assured clear distance between his motorcycle and the Defendant’s vehicle ahead.

The Plaintiff countered with the argument that the Defendants came to a sudden stop and it was the sudden stop that caused the accident, all of which allegations allegedly fell within an application of the sudden emergency doctrine.

The Marchese court noted that the appellate courts of Pennsylvania have found that a sudden braking is deemed to be a foreseeable occurrence on the roadways of Pennsylvania.

Accordingly, the trial court ruled here that the facts of this matter fell within the assured clear distance ahead doctrine rather than the sudden emergency doctrine particularly where the sudden emergency doctrine only applies to "moving instrumentalities" thrust into driver’s path.

Here, the court found no evidence that the Defendant’s vehicle was thrust into the Plaintiff’s path of travel. There was also evidence that the Defendant’s vehicle was at a stopped position, and not moving, at the time of the accident.

Since the court ruled that the sudden emergency room doctrine did not apply and that there was no other evidence of negligence on the Defendant’s part, the Defendants were granted summary judgment.

I do not have a copy of this one.  Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source: "Case Digests," Pennsylvania Law Weekly (May 27, 2014).

Pennsylvania Superior Court Revisits Waiver of Stacking Issue

Here is a LINK to the Pennsylvania Superior Court's latest decision on the issue of stacked UM coverage in the case of Bumbarger v. Peerless Ins. Co., 2013 Pa.Super. 47 (Pa.Super. June 6, 2014)(en banc)(Gantman, J., concurring)(Opinion by Lazarus, J.).


In this case, the Plaintiff was involved in an accident with an uninsured driver and filed suit against her own carrier for uninsured motorists benefits.  An issue arose as to whether or not the Plaintiff was entitled to stacked coverage.


The Plaintiff had waived stacked coverage when she originally purchased the policy for coverage on two vehicles.  She eventually later separately added two more vehicles to the policy but the carrier never obtained additional waivers of stacked coverage from the Plaintiff insured.  One of the additional vehicles was added under an endorsement to the policy and, when the fourth vehicle was added to the policy, it was not by way of an endorsement.


The Plaintiff contended that pursuant to the Sackett decisions, the carrier was required to obtain additional waivers of stacking from its insured when the third and fourth vehicles were added to the policy.  The Plaintiff asserted that the carrier breached the policy by failing to allow for stacked coverage.


If it was deemed by the court that the coverage need not be stacked, the Plaintiff would be entitled to $25,000 in coverage.  If stacked coverage was found to be warranted, the stacked coverage would have been $100,000.


After reviewing the law on the issue as applied to the particular facts presented, the Superior Court ruled on its first take on the issue that new waiver of stacking forms were required and that the failure to secure the waivers resulted in the Plaintiff being entitled to stacked coverage.


Reargument en banc was requested and granted by the Superior Court.  In its most recent en banc decision in Bumbarger, the Superior Court ruled in the same fashion noted above, i.e., that new waiver of stacking forms were required and the failure of the carrier to secure them meant that the Plaintiff was entitled to stacked coverage.


As this issue is somewhat convoluted, I have provided a link to the opinion above if you wish to study the court's analysis and rationale.


Suffice it to say, a review of the Sackett decisions and this Bumbarger opinion support a position that a waiver of stacking form should be secured whenever a new vehicle is added to an automobile insurance policy to avoid the issue being raised in the first place.




I send thanks to Attorney Brian Bevan of the Pittsburgh, PA law firm of DiBella, Geer, McAllister & Best, P.C. for bringing this case to my attention.

Attorney's Fees Still Available If Peer Review Process Found Invalid

In their recent May 2, 2014 Opinion in the case of Doctor’s Choice Physical Medicine and Rehabilitation Center, P.C. v. Travelers Personal Insurance Co., No. 1419 MDA 2013, 2014 Pa. Super 92 (Pa. Super. May 2, 2014 Dononhue, J., Allen, J., and Mundy, J.) (Opinion by Mundy, J.), the Pennsylvania Superior Court addressed a case involving attorney’s fees awarded after a peer review process. 

Overall, the court ruled that an insurance company’s reliance upon a peer reviewer’s recommendation to deny claims does not protect that carrier from liability for attorney’s fees if the peer review is ultimately found to be invalid.  

Stated otherwise, the Superior Court ruled that by simply instituting a peer review process before denying a claim did not serve to guarantee that an insurance company would not be liable for attorney’s fees under the Motor Vehicle Financial Responsibility Law.   Rather, the Superior Court construed the relevant language of §1797(b)(4) of the MVFRL to mean that a completed, compliant, and valid peer review determination would be required.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Joe Thomas of the Panowicz Law Office in Wilkes-Barre, Pennsylvania for bringing this case to my attention.  

Judge Burke of Luzerne County Allows Punitive Damages Claims To Proceed in Cell Phone(s) Distraction Auto Accident Case

In his 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 to Plaintiff's allegations of reckless conduct in support of compensatory and punitive damages claims in the Complaint concerning the Defendant's use of not one, but two, cell phones at the time he rear-ended the vehicles ahead.

According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted at the scene that "both of his cell phones began ringing and that he leaned over to answer them...[he] failed to see the stopped traffic ahead of him due to cell phone distraction and he struck the rear of Unit #2."

The defense asserted that the pleadings of the Complaint failed to conform to rule or law of court in that they included scandalous or impertinent allegations.  The defense also asserted that the allegations failed to have sufficient facts plead in support of the claims presented.

The defense asserted in its brief that punitive damages were not supported where the claims did not establish that the defendant was not talking on his cell phones at the time of the accident but merely stated that they had begun to ring.  The defense also noted that, in any event, use of a cell phone during the course of the accident in and of itself was insufficient to support allegations of reckless conduct or a claim for punitive damages.

The Plaintiff asserted in his brief that the conduct alleged of a defendant driver being distracted by leaning over to answer two cell phones that were simultaneously ringing and crashing into a car ahead and causing a four vehicle chain reaction accident was the type of conduct the cases to date have suggested may be sufficient to allow the claim to proceed.

As noted, Judge Burke overruled the defendant's Preliminary Objections.  Anyone wishing to review the Court's simple Order of denial may contact me at dancummins@Comcast.net.


I send thanks to the prevailing Plaintiff's attorneys Joseph Price, Esq. and Colleen Kearney, Esq. of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Hoping You Might Please Consider Registering For the Tort Talk Expo 2014

PLEASE SAVE THE DATE

 

September 26, 2014

 

TORT TALK EXPO 2014

 

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA

 

(3 Substantive, 1 Ethics Credit)

 

 

 

 

 

TENTATIVE PROGRAM TO INCLUDE:

 

 

12:00 pm - 1:00 pm 

"Back to School"

A TORT TALK AUTO LAW/CIVIL LITIGATION UPDATE

by

Daniel E.  Cummins, Esq.

FOLEY, COMERFORD & CUMMINS

 

 

 

1:00 pm - 2:00 pm 

BAD FAITH UPDATE

by

 

Timothy G. Lenahan, Esq.

LENAHAN & DEMPSEY

 

Scott B. Cooper, Esq.

SCHMIDT KRAMER 

 

Neil T. O'Donnell, Esq.

O'DONNELL LAW OFFICES

Moderator: Daniel E. Cummins, Esq.

FOLEY, COMERFORD & CUMMINS

 

 

 {BREAK: 2:00 pm - 2:15 pm}

 

 

  2:15 pm - 3:15 pm

MEDICAL HOUR

with

 

Dr. Lucian Bednarz  - Physiatrist - on RSD

and

Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome

NORTHEASTERN REHABILITATION ASSOCIATES

 

 

 {BREAK:  3:15 pm - 3:30 pm}

 

 

 3:30 pm - 4:30 pm

VIEW FROM THE BENCH

Ethical Considerations

for

Settlement Conferences

and

Jury Selection

 

Moderator:  Paul Oven, Esq.

Dougherty, Leventhal & Price

 

 

JUDICIAL PANELISTS

 

Supreme Court Justice Correale F. Stevens 

Pennsylvania Superior Judge Court David N. Wecht

Luzerne County Judge Richard M. Hughes,

Lackawanna County Judge A. James Gibbons

U.S. Federal Middle District Court Judge Malachy E. Mannion

U.S. Federal Middle District Magistrate Judge Karoline Mehalchick

 

 

 

 

 4:30 pm - 6 pm

POST-SEMINAR COCKTAIL RECEPTION

 

 

THIS YEAR'S CLE SEMINAR WILL BE HELD IN A BALLROOM IN THE NEW HOTEL and SPA AREA AT THE MOHEGAN SUN

TABLE VENDOR SPONSORS TO DATE (Alphabetical):

 

At The Scene

www.atthescene.com

 

Courtside Documents

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Exhibit A

www.exhibitadigital.com

 

 

 

LexisNexis

www.lexisnexis.com

Medical Legal Reproductions

www.medleg.com

 

 

Network Deposition Services

www.ndsreporting.com

Northeastern Rehabilitation Associates

www.nerehab.com

RecordTrak

www.recordtrak.com

 

The MCS Group

www.themcsgroup.com

 

As in the past, there will again be door prizes and raffle prizes.

 

 

Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at dancummins@comcast.net for more details).

 

 

NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 

 

 

CLICK HERE TO REGISTER ONLINE
or mail check made out to "Tort Talk" and below form to:
Daniel E. Cummins
Foley, Comerford & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503

NAME: ___________________________________________________

FIRM/COMPANY: _________________________________________

EMAIL: ___________________________________________________



CLICK HERE TO BOOK A HOTEL ROOM

In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:

 

SEPTEMBER 26, 2014

 

Philadelphia Trial Court Judge Grants Unopposed Motion To Add Punitives Damages Claim Based Upon Cellphone Usage in Tractor Trailer Accident Case

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.

Anyone wishing to secure a copy of this Order only may contact me at dancummins@Comcast.net.


To view other "Cell Phone Use" cases summarized on Tort Talk, go to Tort Talk at www.TortTalk.com, scroll all the way down the right hand column to the alphabetized "Labels" section and click on the Label "Cell Phone Use."

ARTICLE: A Mid-Year Tuneup: 10 Tips to Improve Your Practice and Reduce Stress

As we have hit the mid-point of the year (Already?!), I thought I would republish the below article of mine from the June 30, 2008 edition of the Pennsylvania Law Weekly.  Thanks for reading Tort Talk,



Dan Cummins

A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress

By

Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.

ANTICIPATE

By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.

A MONTHLY GLANCE

Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.

RETURN CALLS PROMPTLY

A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.

RESPOND TO MAIL

Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.

READ UPDATES

Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.

ARRIVE EARLY

Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.

DON'T TAKE IT PERSONALLY

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.

VOLUNTEER

In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.

SCHEDULE 'ME' TIME

It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.

VACATION

Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.

ARTICLE: A Plea to the Appellate Courts From a Post-Koken Litigator

Below is a copy of my latest article published in my column in the Pennsylvania Law Weekly imploring appellate court judges to tackle Post-Koken issues whenever they can and, when they do so, to publish such Opinions so that much needed appellate guidance in this area of the law can be developed:

A Plea to the Appellate Courts From a Post-Koken Litigator

Daniel E. Cummins, The Legal Intelligencer

June 10, 2014

Dear Pennsylvania appellate court judges:

This respectful yet cogent plea for appellate guidance in post-Koken civil litigation matters is prompted by the Pennsylvania Supreme Court's surprising and disappointing recent denial of the petition to appeal in the notable case of Stepanovich v. McGraw, PICS Case No. 13-2987 (Pa.Super. Oct. 15, 2013).

As noted in my recent Pennsylvania Law Weekly article, "Superior Court Leaves Big Post-Koken Question Unanswered," from Nov. 19, 2013, the Pennsylvania Superior Court tackled, but did not fully resolve, the all-important issue of how trials involving third-party defendant drivers and co-defendant underinsured motorist insurance companies should be handled. With the appeal of that case to the Supreme Court, the state's highest court was poised to address one of the most important issues facing the courts and civil litigators in recent times, but it chose not to.

The denial of the petition for appeal in Stepanovich did nothing to lessen the void of appellate guidance on the many novel and troublesome issues in the brave new post-Koken world of automobile accident litigation.

A Missed Opportunity

If it accepted the Stepanovich appeal, the Supreme Court could have finally determined a number of important post-Koken trial issues at a time when a tsunami of post-Koken trials are bearing down upon trial courts all across Pennsylvania. Such issues include whether, in the first instance, the third-party negligence claim against the alleged tortfeasor should be tried in the same courtroom and at the same time as the breach of contract case against the plaintiff's own insurance company for UIM benefits. If so, appellate guidance could have been garnered on the consequent issue of how to address the general preclusion against the mentioning of insurance issues in third-party negligence trials in a case where the co-defendant is an insurance company.

Stepanovich also offered our highest court the opportunity to provide practical advice to trial court judges on how to conduct a post-Koken trial where there are typically two defense attorneys, one for the third-party tortfeasor on the negligence claim and one for the UIM carrier defendant on the breach of contract claim, double-teaming against a lone plaintiffs counsel.

The struggle with that issue is evident in the Stepanovich case, where the trial court judge initially allowed the trial to proceed with the two-against-one scenario without advising the jury why there were two defense attorneys involved, but then later reversed himself during the post-trial proceedings following the defense verdict by granting a new trial under the rationale that the double-teaming of the plaintiff through two openings, two sets of questioning of witnesses and two closing arguments by the defense was not fair. Moreover, the Superior Court reversed on this issue but did not include in its decision concrete practical guidance on how a post-Koken trial should be handled.

Thus, the hope was that the Supreme Court would step in on the matter and finally give clarity on the important questions presented. Unfortunately and inexplicably, the Supreme Court punted, leaving this issue for another day (or year).

To the extent the Supreme Court punted under the belief that the Stepanovich issues are not troublesome and recurring ones for trial court judges or civil litigators, or were not important enough to review, such is not the case. Moreover, appellate guidance is needed on a number of other novel post-Koken issues as well.

Appellate Guidance Needed

Needless to say, but apparently still necessary to emphasize, appellate guidance would be welcomed on any post-Koken issue that should make its way up the appellate ladder for review.

According to the "Post-Koken Scorecard" on my Tort Talk blog, which may not be exhaustive but is certainly comprehensive, 19 different county courts have ruled that post-Koken cases should be allowed to proceed through the pleadings and discovery phases in a consolidated fashion, while at least 20 other county courts have ruled in favor of the severance of the claims at the pleadings stages.


Notably, in some counties, such as Philadelphia, Allegheny and Lackawanna, there is even a split of
authority on this issue among the trial court judges of the same bench.

A review of the scorecard also confirms that many novel post-Koken issues have also arisen in the context of the discovery phase of this new form of civil litigation of automobile accident claims.


Questions abound as to the extent to which an insurance company's claims file is discoverable, particularly when bad-faith claims are included in the swirling vortex of issues being litigated. Trial courts also continue to struggle with motions to quash the requested depositions of UIM claims representatives and the scope of allowable questions when such depositions are allowed.

Collateral estoppel has become a hot topic in post-Koken litigation that, to date, has only been addressed by the state and federal trial courts. The issue in that regard is whether a plaintiff's participation in a mediation or binding arbitration on the third-party side of the case collaterally estops the plaintiff from pursuing a UIM claim where the monetary result of the third-party litigation came in at less than the tortfeasor's liability limits, thereby indicating that the tortfeasor was not "underinsured" so as to support the pursuit of a companion UIM claim.

Even after the Superior Court's decision in Stepanovich, the all-important issue of whether or not post-Koken trials should be bifurcated into two separate trials, one against the defendant tortfeasor with no mention of "insurance," and a separate one against the UIM insurance company defendant, remains unsettled.

While Stepanovich suggests, but does not hold, that the cases can be tried in a consolidated fashion, at least two trial courts have ruled in favor of a bifurcated trial: the Northampton County Court of Common Pleas in Purta v. Blower, No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.), and the Allegheny County Court of Common Pleas in Vecchio v. Tunison, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.).

Other trial court judges, such as Judges Michael T. Vough and Lesa S. Gelb of the Luzerne County Court of Common Pleas and Judge Cyrus P. Dolbin of the Schuylkill County Court of Common Pleas, who have ruled in several cases that the cases should proceed to trial in a consolidated fashion are, in the absence of appellate guidance, still forced to craft appropriate ways to conduct voir dire, to allow for the admission of evidence of insurance matters, to phrase jury instructions at a layperson's level, and, overall, determine the extent to which two defense attorneys should be permitted to gang up against a plaintiff's case at a post-Koken trial.

Appellate guidance on all of these issues would be beneficial so as to allow for the more orderly and efficient litigation of post-Koken cases. Such guidance would negate the need for trial courts to repeatedly visit these issues as long as appellate decisions are lacking. Moreover, the appellate resolution of post-Koken issues in a final manner could serve to foster the settlement of many cases in which litigants face unfavorable prospects of success in light of such Superior Court or Supreme Court decisions.

Published, Precedential Decisions Welcomed

This is not to say that the appellate courts have not yet tackled troublesome post-Koken issues. Both the Superior Court and the Supreme Court have addressed important issues such as proper venue and the extent to which the delay damages statute can be applied after a post-Koken trial.

And so, appellate court judges, if you have not yet taken up the opportunity to tackle a post-Koken issue, this is the day and age to do so, for you will be remembered and thanked for it later. For those of you who have already taken on such issues, thank you.

Last but certainly not least, it is respectfully requested that when you are faced with post-Koken issues on appeal, you publish your opinions and not list them as nonprecedential, which would, of course, eradicate the power of any guidance the decisions are designed to create.

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

No Habla Espanol?

The Luzerne County Courthouse

 

According to the May 16, 2014 edition of the Luzerne Legal Register, the Luzerne County Court of Common Pleas has issued an Order amending Luzerne County Local Rule of Civil Procedure 1018.1 to require that any notice to defend attached to any Complaint filed by a Plaintiff or any Complaint filed by a Defendant against an Additional Defendant shall begin with a form Notice to Defend provided which sets forth the required language in both English and Spanish.  To review a copy of the proposed new form Notice to Defend required in cases in the Luzerne County Court of Common click this ENLACE, por favor.  

 

According to the May 2, 2014 Order of Court, this Rule will go into effect thirty (30) days after the date of publication of this amendment in the Pennsylvania Bulletin.  As of the writing of this blog post, I am not sure when that publication will occur).  

A Slew of Additional Post-Koken Cases of Note Gathered From Materials from PAAJ's 32nd Annual Pennsylvania Automobile Law CLE

Below is a recitation of additional Post-Koken cases noted in the written materials handed out at the Pennsylvania Association for Justice's 32nd Annual Pennsylvania Automobile Law CLE seminar on May 29, 2014 in Philadelphia.

These cases will be added to the Post-Koken Scorecard which can always be freely accessed by going to the Tort Talk blog at www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Post-Koken Scorecard." 

Here is a quick LINK to the Post-Koken Scorecard for your easy reference now.

CASES IN FAVOR OF CONSOLIDATION OF POST-KOKEN CLAIMS

Chester County

Allen v. Schreiber, et al., No. 3787-2012 (C.P. Chester July 2, 2013 Mahon, J.)(By Order without Opinion, trial court overruled UIM carrier’s Preliminary Objections seeking to sever UIM and negligence claims.).

 

Delaware County

Gallo v. Maiale & Grange Ins. Co., No. 2012-05963 (C.P. Delaware August 12, 2013 Fizzano-Cannon, J.)(Plaintiff sued third party tortfeasor and UIM carrier under one Complaint. By Order without Opinion, trial court denied UIM carrier’s motion for summary judgment which sought dismissal on the grounds that the UIM claim was not ripe as the Plaintiff had not yet secured a settlement or verdict against the third party defendant driver.)

 

Schuylkill County

Post v. Schnerring & Liberty Mut. Ins. Co., No. S-1887-2012 (C.P. Schuylkill Oct. 22, 2013 Dolbin, J.)(By Order without Opinion, court denied UIM carrier’s motion to sever Plaintiff’s negligence and UIM claims.)

 

 

CASES IN FAVOR OF SEVERANCE OF POST-KOKEN CLAIMS

Philadelphia County

Giddings v. Poe & Metropolitan Ins. Group, Oct. Term, 2011 No. 02393 (C.P. Phila. April 26, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Nguyen v. Dorvil & Erie Ins. Exch., Oct. Term, 2011 No. 03880 (C.P. Phila. May 20, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Rios v. Parker & Allstate Prop. & Cas. Ins. Co, Nov. Term, 2011 No. 01208 (C.P. Phila. March 1, 2012 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court granted UIM carrier’s motion to sever UIM claims from negligence claims; court also cites law that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

Silver v. Wood, April Term, 2013 No. 00276 (C.P. Phila. Sept. 20, 2013 Lachman, J.)(Following Sehl v. Neff decision by Judge Tereshko, trial court denied plaintiff’s Petition to Amend Complaint to Add Additional Defendant, holding that negligence claim against defendant driver is wholly separate from UIM claim;  court also cites failure of plaintiff to allege joint and several liability;  court also cites potential confusion of issues and prejudice if joinder allowed.).

 

 

CASES IN FAVOR OF CONSOLIDATION OF BAD FAITH AND UIM CLAIMS

Western District Federal Court

Cooper v. MetLife Auto and Home, No. 687-2013 (W.D.Pa. Aug. 6, 2013 Conti, J.)(Court denied UIM carrier’s motion to sever and stay bad faith claim for failure to establish that bifurcation was appropriate.  Court found that the issues in the UIM and bad faith claims were not significantly different, many of the witnesses would be the same in both trials, and any minor prejudice that might exist was outweighed by the court’s obligation to promote the expeditious resolution of a case.).

Clinton County

Wentzel v. Swinehart & State Farm Ins. Co., No. 375-10CV (C.P. Clinton Co. June 3, 2010 Williamson, P.J.)(By Order without Opinion, court denied UIM carrier’s motion to sever bad faith claims pending resolution of UIM claims.).

 

Luzerne County

Schuckers v. Penn National Mut. Cas. Ins. Co., No. 9080 of 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)(Court denied motion to sever and stay bad faith claims pending resolution of UIM claims by noting there would be a “severance of the case by application of law” in that the UIM case would be tried first followed by a bench trial on the bad faith claim.  Court also denied the UIM carrier’s motion to stay bad faith discovery, noting that UIM carrier had the right to protect non-discoverable information and that the UIM carrier’s conclusions or opinions regarding the strengths and weaknesses of the Plaintiff’s case would be protected from disclosure until the completion of the UIM claim; cites Judge Wettick’s decision in Gunn v. Auto. Ins. Co. of Hartford.).

 

VENUE IN LAWSUITS AGAINST UIM CARRIERS

Otto v. Erie Ins. Exch., No. 13-CV-06722 (E.D.Pa. March 31, 2014 Brody, J.)(Plaintiff sued UIM carrier in Eastern District.  Erie forum selection clause provides that “[s]uit must be brought in a court of competent jurisdiction in the county and state of [plaintiff’s] legal domicile at the time of the accident.”  Plaintiff resided in Montgomery County and sued in Eastern District Federal Court.  UIM carrier’s motion to dismiss pursuant to forum non conveniens doctrine arguing that only the Montgomery Court of Common Pleas was the proper venue was rejected as the Eastern District Federal Court was a court of competent jurisdiction that covered Montgomery County.).

 

 

EVIDENCE OF “INSURANCE” AT TRIAL

Pelc v. Burkell & State Farm, No. A.D. 2009 483 (C.P. Crawford Sept. 23, 2013)(Plaintiff filed suit against third party tortfeasor and UIM carrier.  Plaintiff settled with tortfeasor prior to trial and proceeded to trial against UIM carrier.  On the basis of Pa.R.E. 411, UIM carrier filed motion in limine to preclude Plaintiff from identifying UIM carrier by name at trial and to preclude evidence pertaining to the details of the Plaintiff’s auto insurance coverage, the UIM policy limits, and the Plaintiff’s settlement with the third party defendant.  Motion in Limine denied with respect to request that UIM carrier not be identified at trial.  However, the Motion in Limine as to the remaining issues was granted as the court found that the relevancy of that more specific insurance information was outweighed by the risk of unfair prejudice and the increased potential of confusing the issues and misleading the jury.).

 

  

Source:  32^nd Annual Pennsylvania Automobile Law CLE Seminar Written Materials:  “Update on Current Pennsylvania ‘Koken’ Cases” by Leonard A. Sloane, Esq., Michael J. Davey, Esq., and Matthew J. Bilker of the Media/West Chester, PA law firm of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C.

Judge Minora of Lackawanna County Denies Motion to Compel Plaintiff to Attend 4th IME

In Gilroy v. Housing and Redevelopment Insurance Exchange, No. 2009-CV-9064 (C.P. Lacka. Co.

Judge Carmen D. Minora
Lackawanna County

April 23, 2014 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas ruled that a Plaintiff was not required to undergo a fourth independent medical examination with a pain management specialist as the Defendant did not meet the burden of showing good cause to support such a request.

According to the Opinion, the Plaintiff was alleging injuries as a result of a motor vehicle accident. Without objection, the Plaintiff had previously submitted to three (3) IMEs, one by an orthopedic surgeon, one by a neurological doctor, and one by a psychological medical provider.

When the Defendant requested the Plaintiff to undergo a fourth IME with a pain management specialist, the Plaintiff refused.

The case initially came before a special discovery master in the Lackawanna County Court of Common Pleas who denied the Defendant’s Motion to Compel the fourth IME. The Plaintiff appealed and Judge Minora affirmed the decision of the special discovery master.

Anyone wishing to review this decision may click this LINK.

Attorney Presence Allowed At Independent Psychological or Neuropsychological Exam (Pa.R.C.P. 4010)

Over the past year, at least two more trial court decisions have come down upholding a Plaintiff's right to have their attorney or other representative present for an independent neuropsychological examination:

Romagnoli v. Westmoreland Reg. Hosp., No. 1514 of 2011 (C.P. Westmoreland, March 27, 2013)(Plain language of Rule 4010 supports Plaintiff's right to have counsel or representative present at independent psychological examination;  Plaintiff has right to make audio or stenographic recording of examination;  Defendant's Motion to Compel Psychological IME of Plaintiff without presence of counsel denied).


Sanderson v. Geiger, et al., No. 2011-CV-8539 (C.P. Dauphin Aug. 22, 2013)(In Order without Opinion, Court held that Plaintiff permitted to have counsel present at all aspects of independent psychological examination and vocational assessment without exception;  Plaintiff also permitted to audio record entire psychological examination, including objective testing portion).



Source: Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.

The Future is Now: Info from Vehicle "Black Box" Is Admissible in a Pennsylvania Criminal Case

Once in a while there comes along an appellate court criminal law decision (albeit non-precedential) that could impact Pennsylvania civil litigation matters.

In its recent “non-precedential” memorandum decision in the case of Commonwealth v. Safka,  No. 1312 - WDA - 2012 (Pa.Super. June 2, 2014 Panella, J., Olsen, J., and Wecht, J.)(Non-Precedential)(Mem. Opinion by Panella, J.)(Concurring and Dissenting Op. by Wecht, J.),  a criminal court case, the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's "event data recorder," more commonly known as the "black box," was admissible in a criminal court proceeding.

[Why the Superior Court would list this notable, trend-setting Opinion as “non-precedential” is puzzling to say the least].


Surely, it is only a matter of time before this rule of admissibility is also applied in the civil litigation context.

Once that happens (or even already), the issue becomes whether a party may assert a spoliation, or destruction of evidence, defense against an opposing party for failing to preserve such black box information after a car accident.  

If such a defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black box information that such information would have been adverse to that party's position. 

As such, it may be wise to consider developing procedures to preserve such information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.

To view the majority Opinion in Commonwealth v. Safka, please click HERE.

To view Judge Wecht's concurring and dissenting Opinion, please click this LINK.

Sources:  Article by Zack Needles in June 4, 2014 The Legal Intelligencer entitled "Vehicle Speed Information From 'Black Box' Ruled Admissible."  Also thanks to Attorney Walt A. McClatchy, Jr. of the Philadelphia law insurance defense firm of McClatchy and Associates for this tip.

Link To Yera v. Travelers Bad Faith Decision

Here is a LINK to the decision of Yera v. Travelers Ins. summarized in yesterday's Tort Talk post, "Here's a Thought:  If There Ain't No Coverage, There Ain't No Bad Faith."

Here's a Thought: If There Ain't No Coverage, There Ain't No Bad Faith

In their recent "non-precedential" decision (why do they mark them "non-precedential" on occasion?!) in the bad faith case of Yera v. Travelers Ins. Co., of Am., 1398 EDA 2013 (Pa. Super. April 22, 2014)(Ford Elliott, P.J.E., Ott, J., Strassburger, J.) (Opinion by Ott, J.)(Concurring and Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court affirmed a trial court’s finding that the homeowner’s insurance  carrier for the Plaintiff did not act in bad faith by waiting six (6) months to deny the Plaintiff’s fire loss claim as there could be no bad faith claim where there was an underlying decision that the carrier need not afford any coverage under the policy in any event.  

By way of background, the Plaintiff owned an apartment building that was insured by Travelers.   The building was destroyed by fire.   Travelers denied the claim because there was not automatic sprinkler system in the building at the time of the fire as required by a protective safeguard endorsement in the policy of insurance. 

After the Plaintiff filed a lawsuit seeking to recover insurance benefits from Travelers under the policy and alleging bad faith, the trial court ruled that no coverage was required as the building did not have a sprinkler system as required by the terms of the insurance policy.   Travelers was granted summary judgment.  

On appeal, the Plaintiff argued that the trial court had erred because the policy provision was ambiguous and therefore unenforceable.  Further, the Plaintiff asserted that Travelers’ actions supported the Plaintiff’s bad faith claims.  

The Superior Court rejected the Plaintiff’s arguments on appeal.  The court found that because Travelers did not improperly deny the Plaintiff’s claim under the policy provisions at issue, the general definition of bad faith was not met.   Stated otherwise, the Superior Court more specifically ruled that Travelers’ investigation practices did not result in an improper delay in the payment of the Plaintiff’s claim because no payment was due under the application of the policy provisions to the facts presented.   Accordingly, the lower court’s decision in favor of the carrier was affirmed.  

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

PA Superior Court Affirms Right of Defendant to Ask Plaintiff's Doctor at Trial if Plaintiff's Attorney Referred Plaintiff (Non-Precedential)

Tort Talkers may recall a previous blog post on the Philadelphia County trial court's decision in the case of Fullam v. Miller Bros., et al. in which that court upheld a Defendant's right in a personal injury matter to cross-examine the Plaintiff's doctor on the fact that the Plaintiff was referred to the doctor by Plaintiff's attorney.  To review that blog post, click HERE.


UPDATE:  In its April 30, 2014 "non-precedential" Memorandum Opinion, the Pennsylvania Superior Court affirmed the trial court's decision.  See Fullam v. Miller Bros, et al., No. 106 EDA 2014 (Pa.Super. 2014 Bender, P.J, Ott, J., Strassburger, J.)(mem. op. by Ott, J.)(dissenting op. by Strassburger, J.).

Concisely, the Pennsylvania Superior Court agreed  that cross-examination of the Plaintiff's doctor as to the source from which the Plaintiff obtained the name of the doctor was relevant to the potential bias of the doctor.

The Superior Court's majority non-precedential memorandum opinion may be viewed HERE.  Judge Strassburger's dissenting opinion may be viewed HERE.


Source:  Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.