According to an October 30, 2014 article by P.J. D'Annunzio in The Legal Intelligencer entitled "Pa. Justices Deny Appeal in Juror Bias Med Mal Case," the Pennsylvania Supreme Court has issued an Order declining to entertain the appeal from the 6-2 en banc Superior Court decision in the case of Cordes v. Associates of Internal Medicine overturning a defense verdict in a medical malpractice case after finding that the plaintiff's case had been prejudiced because three of the jurors allowed to serve on the panel at trial had ties to the defendants.
Justice Correale Stevens did not participate in the Court's per curiam Order denying allocatur on the questions presented pertaining to a party's right to a fair and impartial jury at trial.
Click HERE to go to the previous Tort Talk blog post summarizing the Superior Court's decision. There are links to the Superior Court's Opinions in Cordes in that blog post if you are interested in reviewing the same.
Here is a LINK to an October 28, 2014 article by Daniel J. Siegel that appeared in the Pennsylvania Law Weekly entitled "PBA Ethics Committee Issues Social Media Guidance" which outlines ethical opinions offered up by the Philadelphia Bar Association and, more recently, the Pennsylvania Bar Association on a myriad of social media ethical issues facing attorneys and their clients. A good read.
If you cannot access the article through the Link, please email me at dancummins@comcast.net and I will shoot you a copy.
Here is a LINK to the actual PBA Formal Opinion entitled "Ethical Obligations For Attorneys Using Social Media."
In his recent decision in the case of Edgington v. Abersold, PICS Case No. 14-1630 (C.P. Lawrence Co.
Sept. 24, 2014 Piccione, J.), Judge Thomas M. Piccione addressed the issue of
determining a Plaintiff’s tort coverage where more than one private passenger
motor vehicle accident policy was applicable and the policies had conflicting tort options.
In his decision, Judge Piccione applied the provisions of the Motor Vehicle Financial
Responsibility Law that provide "where more than one private
passenger motor vehicle policy is applicable to an insured and the policies
have conflicting tort options, the insured is bound by the tort option of the
policy associated with the private passenger motor vehicle in which the insured
is an occupant at the time of the accident if he is an insured on that policy
and bound by the full tort option otherwise.”See 75 Pa.C.S.A. Section 1705(b)(2).
According to the Opinion, the injured
Plaintiff in this case did not have a driver’s license and did not own a vehicle. The Plaintiff was an insured
under a limited tort policy purchased by her husband.
However, at the time of the accident, the injured party
Plaintiff was riding in her mother’s vehicle as a passenger.The Plaintiff's mother had a full tort policy on that
vehicle.
Judge Piccione applied the facts to the above stated
provision of the Motor Vehicle Financial Responsibility Law and held that a
passenger with no driver’s license and who did not own a vehicle is bound under the insurance coverage and tort option selected by a spouse unless, as
here, the passenger was riding in a car of a different owner with different
coverage.
Since the injured party Plaintiff was found to be an insured
under her mother’s full tort insurance policy, the Plaintiff was deemed capable
of seeking recovery for both economic and non-economic damages as a full tort
Plaintiff.
I do not have a copy of this decision.However, a copy can be secured from the
Instant Case Service of The Pennsylvania Law Weekly by calling 1-800-276-7487
to order a copy of the case for a small fee.
Below is a Limited Tort Primer I created once when faced with the issue of which Tort Option would apply in different scenarios--rather than having to go look it up every time, I like to keep this list handy for easy reference. Hope it helps to kickstart your research whenever you are faced with the same issue:
A.WHO IS COVERED BY LIMITED TORT
The issue of who
is covered by the limited tort
election is governed by an application of 75 Pa.C.S. §1705(b)(2), which
provides, as follows:
(2)The tort option elected by the named insured shall apply to all insureds under the private passenger
motor vehicle policy who are not named insureds
under another private passenger motor vehicle policy.In the
case where more than one private passenger motor vehicle policy is applicable to an
insured and the policies have
conflicting tort options, the
insured is bound by the tort option
of the policy associated withthe private passenger
motor vehicle in which the insured
is an occupant at the time of the accident if he is an insured on that policy and bound by the
full tort option otherwise.
The Pennsylvania Supreme Court has stated that “[t]he formula [for determining who is a
limited tort plaintiff] is clear—where there
is only one insurance policy, sentence one [of §1705(b)(2) above] applies;where there
is more than one policy with conflicting tort options, sentence two determines
the applicable coverage.”Hoffman
v. Troncelliti, 839 A.2d 1013 (Pa.
2003).
POTENTIAL LIMITED
TORT SCENARIOS
-Named insured is bound by limited tort selection in own insured
vehicle at time of accident
-Named insured’s selection of
limited tort under policy shall also apply to all other
insureds under that policy who are not named insureds under their
own separate insurance policy.75
Pa.C.S. §1705(b)(2).
-If there
is more than one policy covering an
insured, and the policies have
conflicting tort option, the insured
will be bound by the tort option
selected in the policy covering the vehicle the
insured was an occupant of when involved in the
accident if the insured is covered
under that policy.Carns
v. Smith, 118 Dauph. Co. Rpts. 417 (1998).
-Where injured party is an
“insured” under a full tort policy covering the
vehicle she is occupying at the time
of the accident, but is a “named
insured” under a limited tort policy, the
Pennsylvania Supreme Court has held that
the second sentence of 75 Pa.C.S.
§1705(b)(2) applies, which entitles the
injured party to full tort coverage because at the
time of the accident she was the occupant of a vehicle that
had full tort coverage and she was also an insured under that
policy (she was a resident relative).Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).
-Where the
injured party selected limited tort coverage as a named insured under her own
policy but is injured while riding as a passenger
in a vehicle covered by a full tort policy, but the
injured party does not qualify as an “insured” under that
full tort policy, then there are no conflicting tort options and the passenger
is bound by her limited tort election.Perry v. Leader Ins. Co., 54 Northampton Co. Rpt. 465 (2005).
-Where the
injured party has selected the full
tort option on his own policy but is a passenger/insured
in a vehicle covered by a limited tort policy, one court has found the injured party in this
scenario to be covered by the
limited tort option.Clikeman v. Bahrenburg, No. 1124 EDA
2005 (Pa.Super. 11/22/05)(mem.
op.)
-A person who is not the owner of a registered motor vehicle and who is
not a named insured or insured under any automobile insurance policy is
considered a full tort plaintiff.75
Pa.C.S. §1705(b)(3)
-A person who owns a registered but
uninsured motor vehicle shall be deemed to have selected the
limited tort option .75 Pa.C.S.
§1705(a)(5);However, the children of a person who has a registered but
uninsured motor vehicle will not be punished with
a deemed limited tort status—they
are considered to be full tort.Holland v. Marcy, 883 A.2d 449 (Pa. 2005).
-A pedestrian who is covered by the limited tort option will not be bound by that election when hit by a car.L.S. v.
David Eschbach, Jr., Inc., 874 A.2d 1150 (Pa. 2005).
I will be presenting on the topic of "The Latest in Bad Faith" at the PBI's 21st Annual Auto Law Update CLE Seminar set to take place on October 31, 2014. The program begins at noon.
If interested in registering to attend the live seminar in Mechanicsburg, PA or any of the webcast of the CLE on the same date and time to locations all around the Commonwealth of Pennsylvania, click this LINK.
This CLE program offers a total of 4 credits, one of which is an Ethics credit.
Here is a LINK to the Course Agenda for the October 31 Mechanicsburg/Simulcast Program.
In its recent decision in the case of Hunter-McLeod v. Dollar General, No.
13-3113 (E.D. Pa. Sept. 16, 2014 DuBois, J.) (Memorandum and Opinion), the
Eastern District Federal Court addressed the issues of subsequent remedial
measures in a slip and fall case as well as the admissibility of an expert
medical opinion.
This matter arose out of a slip and fall accident that
occurred at a Dollar General Store in Philadelphia, Pennsylvania.Surveillance cameras captured the
Plaintiff’s entrance into the store and her accident.The surveillance video also captured the
four (4) employees placing a piece of cardboard over the area of the fall
following the incident.
Prior to trial, the Defendant filed a Motion In Limine to
exclude all evidence of subsequent remedial measures contained in the
surveillance video as well a Motion to Preclude the Plaintiff’s medical expert
from offering certain evidence at trial.
Applying F. R.E. 407, pertaining to the admissibility of
subsequent remedial measures, the court granted the Defendant’s Motion and
excluded the evidence of the store’s post-accident actions as
inadmissible.In so ruling, the court
found that there was no evidence that the subsequent remedial measures
contradicted any witnesses’ testimony directly in order to be admissible for
impeachment purposes.
With respect to admissibility of the Plaintiff’s expert
medical opinion that the subject accident “may have” aggravated Plaintiff’s
degenerative arthritis of the left hip, the court found that this testimony was
not admissible even though the witness stated that the opinion was offered to a
reasonable degree of medical certainty.
Applying Pennsylvania law, the federal court noted that the
Pennsylvania Superior Court has stated that “[e]xpert testimony is admissible
when, taken in its entirety, it expresses reasonable certainty that the accident
was a substantial factor in bringing out the injury.”Citing Kravinsky
v. Glover, 396 A.2d 1349, 1356 (Pa. Super. 1979).The federal court noted that the Kravinsky Superior Court also explained
that “an expert fails this standard of certainty if he testifies that the
alleged cause possibly, or could have[,] led to the result, that it could have
very properly accounted for the result, or even that it was very highly probable
that it caused the result.”396 A.2d at
1356 [other citations omitted].
In this case, the Plaintiff’s medical expert report provided
as follows:“I believe her slip and fall
caused an aggravation of pre-existing degenerative disc [sic] made of x-ray
findings which revealed degenerative arthritis of the left hip.This was not caused by the fall, but may
have been aggravated.”
The defense took issue with the Plaintiff’s expert’s opinion
that the accident “may have” caused an aggravation of the Plaintiff’s
arthritis.The federal court concluded
that the Plaintiff’s expert medical opinion was insufficient and therefore
inadmissible even though the doctor concluded his report with a statement that
his opinion “have been rendered with a reasonable degree of medical certainty.”
Anyone wishing to review this Eastern Pennsylvania Federal Court memorandum decision may click this LINK
In the case of Walker
v. Community Action Realty, Inc., No. 13-00,418 (C.P. Lycoming Co. Oct. 13, 2014 Gray, J.), Judge Richard A. Gray of the
Lycoming County Court of Common Pleas recently denied a Defendant’s Motion for
Summary Judgment in a slip and fall case based upon a defense allegation that
the Plaintiff failed to identify the specific defect that caused her to fall
and because the alleged defect was so trivial that allowing it to exist was not
negligent as a matter of law.
According to the Opinion, the Plaintiff stumbled, trip, and
fell down stairs onto a sidewalk outside a building, allegedly sustaining injuries.At her deposition, the Plaintiff testified
that her foot came into contact with a raised portion of the pavement on the
porch at the top of the stairs, causing her to trip and fall down the
stairs.
It was undisputed that there was a raised area of the porch
surface located a few inches from the front edge of the top step between the
doormat and the front step.An
investigative report noted that the irregularity was only about 1/8th of
an inch high. However, the raised area of the
porch surface was located directly in the middle of the steps, which was noted
to be a busy, heavily traversed point of primary access into and out of the public
building.
After reviewing the law pertaining to trivial defects in
premises liability cases, the court denied the Defendant’s Motion for Summary
Judgment after noting that no definite or mathematical rule can be laid down as
to the depth or size of a sidewalk defect to determine whether the defect was
trivial as a matter of law.
Judge Richard Gray
Lycoming County
Applying the trivial defect doctrine to the facts before him, Judge Gray reiterated
that the defect in question, the existence of which was admitted by the defense, was in the direct line of travel for persons
entering and exiting the building.The court also
emphasized that the irregularity in the area where the
Plaintiff fell was located right in the middle of where the public would
be expected to step before descending the steps out of a busy, heavily traversed
public building.
Judge Gray held that the question of whether or not
allowing the defect in question to exist at that location constituted
negligence, was a question that should be decided by a jury.
Judge Gray further found that the Plaintiff’s testimony was sufficient to also raise a question of fact for the jury to determine whether or not the cause of her fall was indeed the defect in question.
For these reasons, the Defendant’s Motion for
Summary Judgment was denied.
Anyone desiring a copy of this Lycoming County decision in the case of Walker v. Community Action Realty, Inc. may contact me at dancummins@comcast.net.
As requested, I am posting the below ad for the Personal Injury Practicum set to take place on Thursday, November 6, 2014 in Philadelphia, PA. (I am not participating, just posting as a favor as requested).
If you have difficulty reading the below, registration information can also be accessed HERE.
I will be presenting on the topic of "The Latest in Bad Faith" at the PBI's 21st Annual Auto Law Update CLE Seminar set to take place on October 21, 2014. The program begins at noon.
If interested in registering to attend the live seminar in Mechanicsburg, PA or any of the webcast of the CLE on the same date and time to locations all around the Commonwealth of Pennsylvania, click this LINK.
This CLE program offers a total of 4 credits, one of which is an Ethics credit.
The below article of mine was recently published in the September 30, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media, the publisher.
Civil Litigation
Parameters of Showing Bias of Expert Witnesses
Daniel E. Cummins, The Legal Intelligencer
A recent trend in personal injury matters has involved each litigant turning up the heat in their attempt to gather information to discredit the opposing party's medical expert and expose that witness as biased in favor of the offering party.
Although the lofty recognized purpose of a civil trial is to determine the truth of the claims and defenses presented, in reality, the focus and driving force of civil trials has always been money—depending upon which side you are on, maximizing or minimizing the opposing party's monetary recovery.
With many personal injury trials turning on the battle of the experts, such battles are increasingly commencing in the pretrial discovery stages as parties fight over the extent to which they may discover information on the finances and prior litigation activity of experts.
Standard Expert Discovery
To further the truth-seeking goals of civil litigation trials, the Pennsylvania Rules of Civil Procedure pertaining to pretrial discovery have been developed with the overarching purposes of avoiding any surprises at trial and allowing for a fair trial on the merits. One significant portion of the rules on discovery focuses upon the extent to which a party may discover information pertaining to the opinion and background of an opposing party's expert.
Under Pa.R.C.P. 4003.5, in order to properly prepare for trial, parties are freely permitted to discover the identity of an opposing party's expert, the curriculum vitae or resume of that expert, and the facts and opinions upon which the expert is expected to testify at trial.
In limited circumstances, Rule 4003.5(a)(2) also gives the court the power to order additional discovery pertaining to expert witnesses upon cause shown for the need for such additional information. Such information can include information tending to show that the expert may be biased in favor of the party offering the expert as a witness at trial. With such discovery, an opposing party may attempt to attack the credibility of an opponent's witness as part of the truth-seeking purpose of litigating a trial before a jury.
Supplemental Expert Discovery
In the case of Cooper v. Schoffstall, 905 A.2d 482, 495 (Pa. 2006), the Pennsylvania Supreme Court ruled that, when permitted, the scope of permissible supplemental expert discovery could include written interrogatories directed to the nonparty expert (as opposed to interrogatories addressed to the opposing party) requesting information on such topics as: compensation paid to the expert to participate in the case at hand; the character of the expert's prior litigation-related activities; the percentage of time the expert testifies for one side versus the other; the percentage of the expert's overall work devoted to litigation services; the approximate amount of expert income earned per year; and the number of examinations and depositions completed by the expert annually.
The court in Cooper placed a time limit of three years' worth of information required to be produced. The court also noted that if evasive responses to the interrogatories were produced, the trial court had the discretion to order even more supplemental discovery from the expert, such as tax returns or other financial documents to confirm the expert's litigation-related compensation.
The Cooper decision was more recently applied and followed by the Pennsylvania Superior Court in the case of Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007).
Notably, these appellate decisions require that the party seeking supplemental expert discovery must first make a threshold showing to the court that the expert at issue falls within the professional witness category before supplemental expert discovery will be allowed.
A troubling aspect of the Cooper and Feldman decisions is that while they delineate the type of supplemental discovery allowed with respect to the potential bias of an expert witness once there is a threshold showing that the expert witness is a professional witness, neither decision provides concrete guidance on what must be shown to meet that threshold test.
The Cooper decision only vaguely states that the "proponent of discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade or slant his testimony in light of the substantial financial incentives" offered.
Accordingly, under the Cooper circumlocution, in order to secure a court order allowing the party requesting supplemental expert discovery of detailed information to show at trial that an opponent's expert witness is a biased professional witness, the party seeking such discovery must somehow first figure out a way to establish to the court that the expert is indeed a professional witness. What?
An open issue therefore remains as to what types of evidence are sufficient to meet the required threshold showing that an expert witness is an alleged professional witness such that supplemental discovery into the potential bias of that expert should be allowed.
Professional Witness: An Open Issue
In the absence of any appellate decision providing any more concrete guidance on the threshold showing required, the trial court judges have had to utilize the broad discretion afforded to them in deciding the professional witness question.
Unfortunately, there are not many widely reported trial court opinions on this issue. Luzerne County Court of Common Pleas Judge Lesa Gelb spoke of the issue in the case of Mangan v. Erie Insurance Exchange, 2011–CV–06261 (C.P. Luz. Co. 2012), in the slightly different context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness at issue as authorized in the Cooper case.
Relying on a prior decision in the case of Glushefski v. Sadowski, No. 2009–CV–1189 (C.P. Luz. Co. 2010), by Luzerne County Court of Common Pleas Judge Joseph Van Jura in the context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness, Gelb, as did Van Jura, ruled that the Cooper analysis should still be followed even though the discovery was not served on the expert.
While the Mangan and Glushefski decisions served to extend the Cooper analysis to apply to supplemental expert interrogatories served upon opposing parties, there still remained an open question as to what the party requesting discovery must first show in terms of the expert being reasonably identified as a professional witness to allow the supplemental expert discovery to be propounded.
Factors to Establish a Professional Witness
In a more recent decision applying the Cooper professional witness standard, Guffey v. Kyriazis, No. 2308-CV-2009 (C.P. Lacka. Co. 2014 Minora, J.), Judge Carmen D. Minora affirmed the decision of the Lackawanna County special trial master for discovery in a motor vehicle accident litigation that allowed a plaintiff to gather discovery on the finances earned and prior litigation involvement of a defense independent medical examiner dating back three years.
In so ruling, Minora followed the standard set forth in Cooper and Feldman and set forth the painstakingly detailed evidence that plaintiffs counsel provided to the court to establish that the defense IME doctor was a professional witness such that supplemental discovery should be allowed.
Accordingly, the Guffey decision can serve as a guide to the type of evidence that can be utilized to show that a defense (or plaintiffs) medical expert is a professional witness such that supplemental discovery on the expert's finances and litigation involvement dating back three years should be permitted.
More specifically, the plaintiff's counsel provided information on the expert's fees per IME or deposition, that the expert derived substantial fees from litigation work, and that the expert had been retained by defense counsel in prior matters. Also produced for the court's review were advertisements by the expert's medical group seeking IME work. Last, but not least, the plaintiff provided to the court copies of answers to Cooper interrogatories from another unrelated matter providing financial information and litigation activity on the same IME doctor as at issue in the Guffey case.
In light of the provision of all of this evidence by the plaintiff in support of its claim that the defense doctor was a professional witness, Minora found that the plaintiff had established reasonable grounds to assert a concern that the IME doctor may have been an expert witness secured by the defendant to provide legal medical material favorable to the defendant. Consequently, the court ruled that the plaintiff's narrowly tailored Cooper interrogatories were warranted and should be answered.
Waiting for Guidance
Until further appellate guidance is produced, each trial court decision handed down in this regard will serve to shed more light on the proper identification of professional expert witnesses so as to allow the discovery of the financial background and litigation practices of such witnesses and support cross-examination on the all-important issue of bias and, therefore, credibility of the witnesses.
Daniel E. Cumminsis a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.
According to a press release from The American Association for Justice, the Centers for Medicare & Medicaid Services (CMS) has withdrawn its
proposed rule in tort actions on future medicals called “Medicare Secondary Payer and Future
Medicals.”
According to the AAJ, this means that, currently, there is no future medicals rule pending from Medicare and the prospect of having to do Medicare Set-Asides in third party liability matters is now dead.
I send thanks to Attorney Bruce Zero of the Scranton, PA -based Powell Law for bringing this news to my attention.
The below article of mine was recently published in the October 7, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from the publisher American Law Media.
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Spurred by a number of state and federal court decisions over the past year, the issue of whether a previous award secured by an injured plaintiff can serve to preclude the plaintiff from seeking additional coverage from an underinsured motorist carrier on the same claims has become a hot topic in post-Koken auto accident litigation.
The cases show that a previous recovery by a plaintiff can serve as a roadblock on the road to additional recoveries following a motor vehicle accident.
In auto accident matters, a plaintiff will often proceed to a binding arbitration by agreement to resolve the claims against the defendant driver before proceeding to the related UIM claim. Such a plan of attack could prove troublesome.
In his Jan. 15 opinion in Borrelli v. AIU North America, No. 0430, Control No. 13110820 (C.P. Phila. 2014), Philadelphia Court of Common Pleas Judge Mark I. Bernstein granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine in a case where the plaintiff proceeded through an agreed-upon high/low arbitration with the tortfeasor defendant first.
In Borrelli, the plaintiff, with consent of his own UIM carrier, resolved the third-party claim by way of a binding arbitration. At the arbitration, the arbitrator entered an award that was less than the defendant driver's policy limits. This award below the liability limits, by definition, raised the question of whether the plaintiff had indeed been injured by a tortfeasor who was underinsured so as to enable the plaintiff to pursue UIM benefits from the plaintiff's own automobile insurance carrier.
After the arbitration, the plaintiff then filed a UIM lawsuit in Philadelphia against the UIM carrier. The UIM carrier eventually filed a motion for summary judgment based upon the application of the collateral estoppel doctrine in light of the prior arbitration award. The argument was that the doctrine precluded the plaintiff from relitigating the amount of her damages.
Bernstein granted the carrier's motion after finding that all of the elements of the collateral estoppel doctrine were met. The court more specifically ruled that the issue of the full amount of damages to which the plaintiff was entitled had been previously litigated and determined to be less than the tortfeasor's liability limits.
The court noted that it therefore followed that the arbitration award precluded any UIM recovery as the defendant driver was not underinsured. Stated otherwise, the plaintiff was found to have been fully compensated for the alleged injuries by the award entered on the third-party side of the case.
A similar result was also handed down by the U.S. District Court for the Eastern District of Pennsylvania. In his decision in Harvey v. Liberty Mutual Group, No. 130-CV-04693 (E.D. Pa. 2014), 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 being a number below the third-party liability limits and where the arbitration award was entered at a number even below that high parameter.
The court ruled in this fashion even though there was an express agreement between the parties in the third-party liability case that the binding arbitration was not intended to preclude any subsequent proceedings.
In Harvey, the liability limits on the third-party side were $2.25 million. The high parameter agreed to between the parties for the binding arbitration of the third-party case was $1.35 million. The arbitrator entered an award in the amount of $680,000.
The third-party proceedings and the award entered implicated the collateral estoppel doctrine, as the damages claims were fully litigated and the award entered was below the agreed-upon high parameter (which was also well below the available liability limits).
Joyner noted that to avoid the effects of the collateral estoppel doctrine, the parties easily could have written into the binding high/low agreement an express provision to the effect that "the binding high figure is not intended to have any preclusive effect."
Multiple Levels of UIM Coverage
The application of the collateral estoppel doctrine to UIM claims has also been held to apply where a plaintiff first recovers a primary level of UIM coverage and then proceeds to attempt to obtain an additional recovery from a second-level UIM carrier.
This scenario arises when a plaintiff is injured in a car accident while a passenger in someone else's vehicle. The UIM coverage on the vehicle represents the primary, or first-level, UIM coverage available to the plaintiff. If that plaintiff also has their own UIM coverage on their own vehicle, that other UIM coverage would apply as a second level of possible benefits for the plaintiff, assuming no exclusions to coverage apply.
In a recent nonprecedential memorandum opinion in the case of United Services Automobile Association v. Hudson, No. 224 EDA 2014 (Pa. Super. 2014), the Pennsylvania Superior Court addressed a matter involving a claim for second-level UIM benefits after an arbitration award was previously entered for UIM benefits under a primary UIM policy.
In this auto accident matter, the plaintiff initially secured the tortfeasor's $15,000 in liability limits by settlement and then proceeded to her UIM claims.
The primary UIM coverage on the vehicle in which the plaintiff was located as a passenger at the time of the accident provided for $100,000 in UIM limits. An arbitration award of $75,000 was eventually entered on that claim.
After a credit for the third-party coverage of $15,000 was applied to that initial UIM arbitration award, the plaintiff received $60,000 of the primary UIM carrier's $100,000 UIM policy limit.
The plaintiff then sought to recover a second level of UIM benefits under her own personal UIM policy. That second-level UIM carrier denied the claim by arguing that the issue of damages had already been fully litigated, with the result being a number that was below the first-level UIM carrier's policy limits, thereby precluding the claim for second-level benefits.
The trial court upheld the insurance company's collateral estoppel argument and the plaintiff appealed. The Superior Court affirmed by ruling that the insured was estopped from relitigating the claim as the issue of damages had already been litigated. Since the UIM award was less than the amount of the UIM limit on the first policy, the court ruled that the plaintiff could not recover under the second-level UIM policy.
Nonbinding ADR
In addition to being found to apply to binding arbitration, Pennsylvania courts have also found that the doctrine of collateral estoppel may apply to looser forms of alternative dispute resolution proceedings.
In her decision earlier this year in the post-Koken case of Gallagher v. Ohio Casualty Insurance, No. 13-0168 (E.D. Pa. 2014), U.S. District Judge Nitza I. Quinones Alejandro of the Eastern District of Pennsylvania found that while a nonbinding ADR award did not technically implicate the collateral estoppel doctrine, the award nevertheless served to preclude a UIM claim.
According to the opinion, the third-party portion of this case settled after a nonbinding ADR proceeding was held and the arbitrator entered a settlement value that was approximately $59,000 less than the third-party liability limit.
The insured plaintiff initially declined to accept the evaluation issued by the arbitrator and proceeded with the litigation of the third-party case. However, after the completion of some further discovery, the third-party case settled for the same amount as the nonbinding arbitrator's evaluation.
Despite settling the third-party claim for substantially less than the tortfeasor's liability limits, the plaintiff nevertheless commenced a UIM claim against the plaintiff's own automobile insurance carrier.
The UIM carrier denied a UIM claim even existed given the nonbinding arbitration value placed upon the case was below the tortfeasor's liability limits.
The carrier argued that the UIM case could not proceed because the third party could not be considered to be underinsured, because the third-party coverage was not exhausted and because the claim was allegedly barred by the collateral estoppel doctrine.
The court in Gallagher noted that the UIM claim would not be barred by the collateral estoppel doctrine because the nonbinding arbitration did not result in a final judgment as required for that doctrine to apply.
However, the court found that the defendant driver was not a UIM motorist as defined by the policy or Pennsylvania law. The only evidence to consider of the other driver being underinsured were the policy limits, the arbitrator's evaluation and the eventual settlement amount. Under that evidence, the court found that the third-party defendant could not be considered to be underinsured and that, therefore, the injured plaintiff could not present a UIM claim.
In light of the above string of cases, both sides of the bar should activate their high beams to keep a cautious eye out for roadblocks in the road to a UIM recovery.
Daniel E. Cumminsis a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.
In its recent decision in the case of Nertavich v. PPL Electric Utilities, 2014 Pa. Super. 184 (Pa.
Super. Aug. 27, 2014 Ford Elliott, P.J.E., Ott, J., Strassburger, J.)(Op. by Ott, J.) (Strassburger, J., dissenting), the Pennsylvania Superior Court addressed the duties
owed in a case involving an injury to an employee of an independent
contractor.
The court more specifically ruled that the electric company
Defendant was entitled to a judgment notwithstanding the verdict in a case
arising out of injuries to an employee of an independent contractor hired to
paint electric transition pole.
The
court found that there was an insufficient degree of control for liability
purposes even though there was a designation of a contract field representative by the defendant to be responsible
for monitoring safety practices, and even though internal company documents setting forth
safety guidelines for employees were produced.
Such evidence was found to be insufficient to establish that the Defendant electric company retained control of job sites as an owner such that liability could be imposed for injuries
to employees of the independent contractor.
In so ruling, the Nertavich court relied heavily upon the Pennsylvania Supreme Court's decision in the case of Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. 2011) which was summarized in this TORT TALK POST.
The Majority Opinion by Judge Ott can be viewed HERE.
Judge Strassburger's dissenting Opinion (a simple two-line affirmation of the trial court opinion) can be viewed HERE.
There remains a split of authority on the issue of consolidation versus severance of Post-Koken third party claims and UIM claims across the Commonwealth. There also remains a split of authority on this issue within several counties, including Lackawanna, Allegheny, and Philadelphia Counties.
Another decision in favor of consolidation of Post-Koken claims was recently handed down by Judge Nina Wright Padilla in her one line Order denying a Motion for Sever in the case of Schlesinger v. GEICO, June Term 2014, No. 0549, Control No. 14083387 (C.P. Phila. Co. Sept. 26, 2014).
I send thanks to Attorney Steward A. Bernstein of the Philadelphia law firm of Kanter, Bernstein & Kardon for bringing this case to my attention.
For a comprehensive listing of Post-Koken decisions from across the Commonwealth on this issue and other Post-Koken issues, check out the Post-Koken Scorecard that is always freely accessible by clicking the link to the same down on the right hand column on the Tort Talk Blog at www.TortTalk.com. Here is a quick LINK to the Post-Koken Scorecard for your easy reference.
Please do not hesitate to let me know of any Post-Koken decisions you may be aware of from any county in order that the Scorecard may be continually updated for the benefit of all.
In its recent decision in the case of Dougherty v. Heller, 2014 Pa. Super. 170 (Pa. Super. Aug. 14,
2014)(Maj. Op. by Bender, P.J.E.)(Concurring and Dissenting Op. by Mundy, J.), the Pennsylvania Superior Court ruled that, since a party lacks a
privacy interest with respect to information disclosed during pre-trial
discovery, the Motion to Compel a videotape deposition of a party was properly
granted by the trial court and the Motion for Protective Order regarding the
videotaped deposition of the party was properly denied by the trial court.
The Committee for Justice For All (CJA) recently extended the professional courtesy of advertising my recent Tort Talk Expo 2014 CLE Seminar among its members. I am returning the favor.
On October 22, 2014, the CJA will hold a CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA from 8:00 am - 4:45 pm, followed by a Cocktail Reception. Breakfast and Lunch are included. The seminar will revolve around panel discussions by members of the plaintiff's bar, defense bar, and the local bench pertaining to the use of Focus Groups and Mock Juries in personal injury cases. The program offers 6 Credits plus 1 Ethics Credit.
For more information or to register, please contact Paul Lyon at (570) 338-0158.
In the recent past, several cases have been summarized here in which a variety of courts have held that where a third party arbitration in an auto accident case results in an award that is less than the tortfeasor's liability limits, the plaintiff is collaterally estopped from proceeding onto a UIM claim. The rationale is that, as there had already been a determination as to the value of the claim and that value did not exceed the liability limits, then the tortfeasor was not "undersinsured" and no UIM recovery could be had by the Plaintiff.
This collateral estoppel issue has reared its head again, but in the slightly different context of a case involving multiple levels of UIM coverage.In its recent "non-precedential" Memorandum Opinion in the case of USAA v. Hudson, No. 224 EDA 2014 (Pa.
Super. Sept. 24, 2014 Lazarus, J., Ott, J., Strassburger, J.) (Memorandum by Ott, J.), the Pennsylvania Superior Court addressed a matter involving a claim for second level Underinsured Motorist (UIM)
benefits after an arbitration award was entered for UIM
benefits under a primary policy.
In this matter, the Plaintiff secured the tortfeasor's $15,000 in liability limits by settlement and then proceeded onto her UIM claims. The primary UIM coverage on the vehicle in which the Plaintiff was located as a passenger at the time of the accident
was with Allstate. An arbitration award of $75,000 was eventually entered on that claim. After
a credit for the third party coverage of $15,000, the insured received
$60,000 of the Allstate $100,000 UIM policy limits. The Plaintiff then sought second level UIM coverage
under her personal UIM policy with USAA. That second level UIM carrier denied the claim by
arguing that the issue of damages had already been fully litigated with the result being a number that was below the first level UIM carrier's policy limits. The trial
court found in favor of the insurance company and Hudson appealed.The Superior Court affirmed and held that the insured is estopped from
re-litigating the claim and that the “issue” of damages had already been
litigated.
Since the award of the UIM was less than the amount of the UIM
coverage on the primary policy, the Plaintiff could not recover under the second level USAA UIM policy.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this decision to my attention.A
nyone wishing to review this Memorandum Opinion by the Superior Court in the USAA v. Hudson matter may click this LINK.
