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Interesting Legal Intelligencer Article on the Future of Products Liability in PA in Light of Tincher

Here is a LINK  to a November 25, 2014 article by Max Mitchell of The Legal Intelligencer entitled "Products Liability Cases in Pa. Face an Uncertain Road."

The article outlines the grey areas in the future of Pennsylvania products liability law in light of the Pennsylvania Supreme Court's recent decision in Tincher.  Interestingly, both the plaintiff's bar and the defense bar are claiming victories with the decision.

In any event, the article makes for an interesting read and may be a good article to have on hand when issues arise for you for the first time.

If you are unable to open the Link please email me and I will send you a copy of the article.

Intermediate Form of Indemnity Agreement in Contractor-Subcontractor Construction Agreement Found

In its recent unpublished "non-precedential" decision in the construction accident case of Bracken v. Burchick Construction, 1432 WDA 2012 (Pa. Super. Oct. 10, 2014 Panella, J.), the Pennsylvania Superior Court found that language used in the parties’ Subcontractor Agreement was sufficient to establish an intent to enter into an intermediate form of an indemnity agreement such that, after waiving its immunity under the Workers’ Compensation Act, a subcontractor may be deemed to possibly be required to reimburse the general contractor for a $3.1 million dollar settlement owed after the death of the subcontractor’s own employee as a result of a work place accident.  

According to the Opinion, the decedent Plaintiff’s representative filed a lawsuit against the general contractor for the construction project.  The general contractor then filed a Complaint to join the Plaintiff’s decedent’s employer, who was a subcontractor on the same work site.  

The court found that under language contained in the Subcontractor Agreement, the subcontractor agreed to assume the entire liability for any injury or death suffered by its employees as a result of the subcontractor’s negligence.   The court viewed the language of the subcontract to be considered an intermediate form of an indemnity agreement.   Accordingly, the subcontractor was found to have agreed to indemnify the general contractor for the entire liability if the liability stems from the subcontractor’s partial or sole negligence.

 

Judge Panella's majority Opinion can be viewed HERE.

 

Judge Olsen's dissenting Opinion can be viewed HERE.

 

 

 

 

 

 

Pennsylvania Supreme Court Upholds Constitutionality of Statutory Caps in Context of Tort Claims Act

In another notable decision, this time in the case of Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014  ), the Pennsylvania Supreme Court upheld the constitutionality of the $500,000 statutory cap on tort claim recoveries against local governmental agencies under the Tort Claims Act, 42 Pa.C.S.A. Section 8501-8564.  The statutory cap which was upheld is found at Section 8553.

In the end, the molding of a jury verdict in favor of the Plaintiff in an amount of over $14 million dollars for personal injuries down to the $500,000 cap was upheld over the Plaintiff's constitutional challenges.

The Supreme Court noted that any changes in the law in this regard should originate from the General Assembly as opposed to the court system.

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

Justice Baer's Concurring Opinion can be viewed HERE.


I say thanks to Attorney Matt Keris, the current President of the Pennsylvania Defense Institute and a shareholder in the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this notable decision to my attention.

Pennsylvania Supreme Court Issues Tincher Decision: Declines to Adopt Restatement Third for Products Cases

The Pennsylvania Supreme Court has released its much anticipated products liability decision in Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.)

When the Court accepted the appeal in Tincher it defined the issue presented as "Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement."

 In the Tincher 128 page majority Opinion, the Court overruled the Azzarrello  v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978) decision and its negligence/strict liability analysis.

While the Tincher court declined to adopt the Restatement Third for products cases, the Court did note that certain principles therein guided its framework for a proper analysis of such claims in the post-Azzarrello era.

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

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

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

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

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


I send thanks to Attorney Ken Newman of the law firm of Thomas, Thomas & Hafer for bringing this case to my attention.  I also thank the excellent Drug and Device Law Blog in the same regard.

 

Prior Worker's Comp Award Collaterally Estops Plaintiff From Expanding Claims of Injuries in Companion Civil Lawsuit

In his recent decision in the case of McConnell v. Delprincipe, PICS Case No. 14-1674 (C.P. Lawrence Co. Oct. 2, 2014 Cox, J.), Judge J. Craig Cox of the Lawrence County Court of Common Pleas ruled that the judicial findings reached in a Plaintiff’s previous workers’ compensation case arising out of the same accident precluded the re-litigation of identical issues in a collateral civil lawsuit.  

In this matter, the Plaintiff was a tow truck driver who was injured on a roadway while assisting a stranded motorist.   The accident occurred while the injured party was acting in the course and scope of his employment.  

The Plaintiff’s claim that the Plaintiff sustained cervical spine injuries including herniated disc, headaches, cervical sprain and strain, and numbness and tingling in his upper extremities along with a thoracic strain/sprain, and a lumbar sprain/strain.  

The Plaintiff filed both a workers’ compensation claim as well as a personal injury claim.  

At the workers’ compensation hearing, the Plaintiff presented a testimony of his treating doctor who opined that the Plaintiff sustained a cervical strain/sprain as well an aggravation of his underlying degenerative disc disease in his neck.   The treating physician opined that the Plaintiff could continue to work as he had recovered from his cervical injury. 

At the workers’ compensation hearing, the employer presented a testimony of a medical expert who had reviewed the records and completed an examination of the Plaintiff.   The defense medical expert opined that the MRI studies showed age-appropriate degenerative changes that were not aggravated by the subject accident.   The defense expert agreed with the Plaintiff’s medical expert that the Plaintiff had sustained a cervical spine sprain/strain.  

The workers’ compensation judge concluded that the Plaintiff did indeed sustain a neck injury as a result of the accident, but did not suffer an aggravation of this pre-existing degenerative disc disease.   The workers’ compensation judge had also concluded that the Plaintiff had fully recovered from his work-related injury and was not disabled.  

The workers’ compensation decision was not appealed by the Plaintiff.  

In the separate civil litigation lawsuit, the Plaintiff sought to recover for damages beyond the cervical spine/strain injury.  

The trial court judge rejected this effort by the Plaintiff finding that all of the elements for the collateral estoppel test had been met.  First, the issue decided at the workers’ compensation hearing was identical to the issue raised in the personal injury lawsuit.   The trial court also confirmed that the Plaintiff presented evidence at the workers’ compensation hearing in an effort to prove that he sustained an aggravation of his degenerative disc disease in addition to the sprain/strain injury.   The trial court in the personal injury case indicated that the Plaintiff had a full and fair opportunity to litigate that issue and that the workers’ compensation judge had rendered a final judgment on the merits of that issue which was not appealed.  

Accordingly, Judge Cox held that the findings in the workers’ compensation case precluded the re-litigation of the identical issues in the companion personal injury lawsuit.   As such, the trial court ruled that the findings of the workers’ compensation judge precluded the Plaintiff from seeking damages beyond a cervical sprain/strain injury.  

As such, the Defendant’s Motion for Partial Summary Judgment arguing that the Plaintiff were collaterally estopped from asserting injuries beyond that which had been determined in the previous workers’ compensation matter was granted.  
 

I do not have a copy of this decision.  Anyone wishing to secure a copy of this decision in the case of McConnell v. Delprincipe may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and paying a small fee.  

 

 

Source of image: www.ohioemployerlawblog.com and Disney.



Monumental Opinion on Post-Koken Trial Jury Instructions From Judge Terrence R. Nealon of Lackawanna County

In his recent decision in the case of Moritz v. Hora ce Mann Insurance, 2014 WL 5817681, No. 2013-CV-544 (C.P. Lacka. Co. Nov. 10, 2014 Nealon, J.), Judge Terrence R. Nealon addressed important issues with respect to a post-Koken automobile accident matter that is headed towards trial.  

In what appears to be the first reported decision on the issue, Judge Nealon set forth the instructions that he would provide to the jury in a UIM jury trial.  

According to the Opinion, the defense wanted minimalist instructions to the jury that this matter involved an admitted liability accident for which the jurors were to decide the amount of damages recoverable.   In contrast, the Plaintiff was requesting some explanation of the UIM coverage and claims presented.  

Judge Nealon noted that there are no standard jury instructions for UIM trials that have been promulgated to date.  Accordingly, he reviewed jury instructions from other states and then formulated his own instructions.  

Judge Terrence R. Nealon
Lackawanna County

In so ruling, Judge Nealon referred to his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5^th 17, 44 (C.P. Lacka. Co. 2011, Nealon, J.) for the proposition that not only made Pennsylvania trial courts join and try tort UIM claims in a single action without running afoul of Pa. R.E. 411, pertaining to “Liability Insurance,” and that a trial court may consider evidence of insurance as being offered for another purpose under Rule 411 such that a UIM carrier was allowed to be identified to the jury and the tort and UIM issues could be tried jointly as guided by “carefully crafted instructions to the jury.”  

Judge Nealon noted that the Pennsylvania Superior Court more recently addressed the application of Pa. R.E. 411 in a jury trial where a liability and UIM claim are joined for a single trial and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of…. Rule 411” in such a trial.  Moritz, citing  Stepanovich v. McGraw, 78 A.3d 1147, 1150 (Pa. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).  

In Moritz, Judge Nealon stated that he would instruct the jury, as follows:

(1)  Plaintiffs have brought this action against their own insurance company under coverage known as underinsured motorist coverage, which served to provide compensation to a Plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the Plaintiff’s damages from an accident;

(2) To recover against the Defendant, the Plaintiff must prove that the other driver was negligent, that the negligence caused harm to the Plaintiff, and that the other driver did not have adequate liability insurance;

(3) The Defendant had stipulated that the Plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy;

(4) The Defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the Plaintiff suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the Plaintiff;

(5)  The fact that the Plaintiffs are suing the Defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the Plaintiff;

(6) The Plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the Plaintiffs have already received from the other driver and her insurer;  and,

(7)  The jury should determine an amount of money damages that will fairly and adequately compensate the Plaintiff for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the Plaintiff may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award.  

 

In his Opinion, Judge Nealon went on to more specifically apply the above to the facts of the case presented in terms of the jury instructions to be provided.  

 

The Moritz decision by Judge Nealon is also notable with respect to a Motion In Limine filed by the Plaintiff seeking to introduce evidence that the same insurance company paid for the  Plaintiff’s total treatment and surgery under the first party medical benefits coverage as a means of rebutting the carrier’s argument, as a UIM Defendant, that the Plaintiff’s shoulder injury and surgery were not accident related.

The court sustained the UIM carrier’s objections to that evidence and ruled it inadmissible.   In support of this ruling, Judge Nealon relied upon the case of Pantelis v. Erie Insurance Exchange, 890 A.2d 1063 (Pa. Super. 2006).  

In Pantelis, the same argument was raised by the Plaintiff.  However, the Superior Court noted that “[t]he statutory framework and applicable case law establishes that payment of UM/UIM claims is subject to a different analysis then payment of first party benefits.”  Pantelis, 890 A.2d at 1068.  

Accordingly, the Pantelis court ruled that “the trial court directly determined that  payment of first party benefits does not preclude an insurer and later denying third party UM/UIM benefits” since “an insurer’s payment of first party benefits does not, without more, constitute a binding admission of causation under either the statute or case law.”  Id. at 1067-68.   Judge Nealon cited a number of other federal courts reaching the same conclusion.  

Judge Nealon also ruled that, even if this evidence is found to arguably be relevant, its probative value was outweighed by the danger of unfair prejudice since the admission of that evidence could sway the jury to render a verdict on an improper basis.   The court noted that the admission of the fact that the insurance company had paid medical expense benefits could be equally prejudicial to both the injured party Plaintiff and the insurance company Defendant.  For example, the jury could conclude that those medical expense payments, like the payment that the Plaintiff already received from the liability carrier, should likewise be deducted from its award of damages and thereby reduce its verdict without prompting or suggesting by the court.  

As such, Judge Nealon denied the Plaintiff’s request to utilize the evidence at issue. 

Anyone wishing to review this decision of first impression in Pennsylvania by Judge Terrence R. Nealon in Moritz may utilize the above Westlaw citation or click this LINK.

It is noted that the prevailing Plaintiff's attorney in this Moritz case is Attorney John Mulcahey of the Scranton office of the Munley Law Firm.

Supreme Court's Revised Forum Non Conveniens Standard Utilized by Superior Court for First Time

In its recent decision in the case of Lee v. Bower Lewis Thrower Architects, 2014 Pa.Super. 240 (Pa. Super. Oct. 22, 2014 Gantman, P.J., Bender, P.J.E., and Platt, J.)(Op. by Gantman, P.J.), the Pennsylvania Superior Court upheld a Philadelphia Court of Common Pleas judge’s ruling granting a Defendant’s Motion to Transfer under the doctrine of Forum Non Conveniens.  

This case represents one of the first appellate decisions applying the Pennsylvania Supreme Court’s recent Forum Non Conveniens ruling in the case of Bractic v. Rubendall. [To review the prior Tort Talk post on the Bratic case along with a link to that decision, please click HERE.]. 

In this motor vehicle accident case of Lee, which involved an accident that occurred in Centre County, Pennsylvania, the Defendants filed a Motion to Transfer the case to Centre County after the Plaintiff filed the suit in Philadelphia County.  

The Superior Court applied the Pennsylvania Supreme Court’s holding in Bractic which clarified the standard of review with respect to a Motion for Transfer of Venue under the doctrine of Forum Non Conveniens.  

In Bractic, the Pennsylvania Supreme Court clarified the standard for showing that a Plaintiff’s choice of venue was “vexatious and oppressive.”   The Pennsylvania Supreme Court clarified that his standard did not require Defendants to provide detailed and specific information with respect to how the venue change would impact the parties.  Rather, the Pennsylvania Supreme Court reaffirmed the rule that the trial courts have the broad discretion to use a balancing test of several factors, including but not limited to, location of witnesses, distance traveled, and court congestion, in deciding such motions.   Other factors to be considered included burden of travel, time out of office, disruption to business operations, difficulty in obtaining witnesses, and access to proof in general.  

In the Lee case, the Pennsylvania Superior Court stated that, while the moving party needed to offer support for its transfer motion in the form of detailed information in the record, the Bractic Supreme Court held that the standard did not require “any particular proof”.  

After reviewing the record before it, the Pennsylvania Superior Court in Lee affirmed the trial court’s transfer of the case from Philadelphia County to Centre County. 

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


Source of Image:  www.ramirezlaw.blogspot.com

LINK TO WRITTEN MATERIALS FROM TORT TALK EXPO 2014 CLE

Here is a LINK to my written materials from the Tort Talk Expo 2014 Civil Litigation/Auto Law/Bad Faith Update CLE in September. 

In addition to my written materials and articles, the packet also contains a section entitled "Koken/Bad Faith Update" by Attorney Scott Cooper of the Harrisburg, PA firm of Schmidt Kramer, and a section entitled "Depositions in Bad Faith Litigation" by Attorney Neil T. O'Donnell of the O'Donnell Law Offices in Kingston, PA.

Note that the materials are in excess of 200 pages and, as such, may take sometime to download.

These materials were also utilized as part of my Civil Litigation Update presented at the Lackawanna County Bench Bar Conference in October.

Thanks.

NEXT WEDNESDAY: PDI HOLIDAY PARTY AT W-B/SCRANTON PENGUINS HOCKEY GAME

PENNSYLVANIA DEFENSE INSTITUTE

presents

 

CLE Program and Wilkes-Barre/Scranton Penguins

vs. Portland Pirates Hockey Game

at Mohegan Sun Arena

Wednesday, November 19, 2014

1 Ethics Credit!

 

4:30 P.M.: Registration

 

5:00 P.M.: CLE program “Persuasion, Civility and How Jurors Make Decisions”

PRESENTERS: 
Ross Suter, Associate General Counsel of Magna Legal Services
Tom Helbig, Esq. of Helbig Mediation Services
Daniel E. Cummins, Esq. of Foley, Comerford & Cummins

 

6:00 P.M.: Reception

 

7:00 P.M.: Hockey Game

 

FREE FOR PDI MEMBERS

SMALL CLE ATTENDANCE FEE FOR NON-MEMBERS

 

Contact Dave Cole, Executive Director of PDI To Register:

 

David ColeP: 800-734-0737
E: coled01@padefense.org

 

 

 

Presented by:

PENNSYLVANIA DEFENSE INSTITUTE

 

CLE program, reception and hockey ticket:

 PDI members and insurance claims personnel: FREE!

 All others: $75

 

Name(s):______________________________________________________________________

 

Firm/Company: _______________________________________________________________

 

E-Mail: ________________________________________________________________________

Payment by check payable to:

Pennsylvania Defense Institute

P.O. Box 697, Camp Hill, PA 17001-0697

For more information, contact PDI at 800-734-0737 or coled01@padefense.org
.

 

 

[NOTE:  Tort Talk is not in any way affiliated with this event--just passing along the info]

 

 

"Name Driver Only" Type of Automobile Insurance Policy Upheld as Valid (Decision Now On Appeal)

In a recent Montgomery County Court of Common Pleas decision in the case of An v. Gillmore and Victoria Fire & Cas. Co., No. 2013-Civil-06320 (C.P. Mont. Co. Sept. 2, 2014 Haas, J.), the court addressed the validity of a “named driver only” automobile insurance policy (as opposed to a "Named Driver Exclusion" provision that may be contained within an automobile insurance policy.).

The policy at issue contained a “named driver only exclusion” which excluded coverage for any person not listed as a named insured on the policy.

The Defendant driver involved in the accident was not listed on the policy. Rather, only the owner of the vehicle was the sole driver listed under the terms of the policy.

This matter was a declaratory judgment action on the issue of whether or not the carrier had to provide a defense and indemnity under the circumstances presented.

The case raised the issue of the validity of these types of "named driver only" policies under Pennsylvania's Motor Vehicle Financial Responsibility Law.

The insurance company filed a Motion for Summary Judgment on this declaratory judgment action claiming that it had no duty to defend or indemnify the Defendant driver because the policy specifically stated that the carrier “will not provide coverage when the driver of your auto is not listed on the policy.”

  The Plaintiffs countered that the “named insured” policy provision violated §1718(c) of the Pennsylvania Motor Vehicle Financial Responsibility Law and was also against public policy. (Pertaining to the validity of a “named driver exclusion”).

More specifically, the Plaintiff asserted that, under the statute, a “named driver exclusion” can only apply “if the excluded person is insured on another policy of motor vehicle liability insurance.” 75 Pa. C.S.A. §1718(c)(1), (1711)(c)(2).

Although there was no evidence in the record on whether or not the Defendant driver was indeed insured under another automobile policy, the trial court found the Plaintiff’s argument to be flawed since §1718(c) refers to named driver exclusion provision within an automobile insurance policy which serves to exclude a particular driver, as opposed to the different situation presented in this matter involving a "named driver only" insurance policy in which the entire automobile policy is premised upon a particular driver being provided coverage to the exclusion of everyone else.

The trial court found that no section in the Motor Vehicle Financial Responsibility Law precluded “named driver only” policies. As such, §1718 was found to be inapplicable.

The court additionally rejected the Plaintiff’s Complaint that the “named driver only” policy was against public policy. To the contrary, the court stated that the type of policy purchased by owner of the vehicle allowed that person to obtain insurance at a low cost, which was found to further the goal of the public policy behind the Motor Vehicle Financial Responsibility Law in attempting to curtail the increasing cost of insurance premiums.

As such, the court granted the carrier’s Motion for Summary Judgment and denied the injured party Plaintiff’s Motion for Summary Judgment on the declaratory judgment issues pertaining to coverage for the Defendant driver.

It is noted that this decision has been appealed and is currently pending before the Pennsylvania Superior Court.

Anyone wishing to secure a copy of this Opinion may contact me at dancummins@comcast.net.


Source of Image:  www.automotorblog.com


 

The Bizarro World: Court Grants Plaintiff's Motion to Compel IME of a Defendant

In her recent Halloween decision in the case of Norconk v. Grove, No. 3824-CV-2014 (C.P. Luz. Co. Oct. 31, 2014 Gartley, J.), Judge Tina Gartley of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel a Defendant driver to undergo an independent medical examination pursuant to Pa.R.C.P. 4010.

According to information secured on the case, the matter involved a motor vehicle accident during which a tractor trailer allegedly rear-ended the Plaintiff's vehicle.

The truck driver was noted to be 80+ years old as of the time of the incident.  Based upon unspecified information that the Plaintiff's attorney uncovered in the Defendant's medical records, the Plaintiff requested an independent medical examination of the Defendant driver, which was refused.

Notably, in reviewing the wording of Pa.R.C.P. 4010, there is a reference to permissible medical examinations of a "party" and the Rule does not limit itself to IMEs of a Plaintiff.

The Plaintiff filed an innovative motion to compel the Defendant's IME and the court granted the same in an Order without Opinion.  Anyone wishing to review Judge Gartley's Order may click this LINK.

In light of this decision, it is anticipated that the Plaintiff's bar will now finally adopt the correct phrase "Independent Medical Examination."


I send thanks to the prevailing Plaintiff's attorney, Ann Farias, Esquire of the O'Donnell Law Offices in Kingston, PA for bringing this decision to my attention.


Source of Image:  Seinfeld on Pinterest/www.pinterest.com

SAVE THE DATE: Pennsylvania Defense Institute Holiday Party in NEPA - November 19, 2014

PENNSYLVANIA DEFENSE INSTITUTE

presents

 

CLE Program and Wilkes-Barre/Scranton Penguins

vs. Portland Pirates Hockey Game

at Mohegan Sun Arena

Wednesday, November 19, 2014

1 Ethics Credit!

 

4:30 P.M.: Registration

 

5:00 P.M.: CLE program “Persuasion, Civility and How Jurors Make Decisions”

PRESENTERS: 
Ross Suter, Associate General Counsel of Magna Legal Services
Tom Helbig, Esq. of Helbig Mediation Services
Daniel E. Cummins, Esq. of Foley, Comerford & Cummins

 

6:00 P.M.: Reception

 

7:00 P.M.: Hockey Game

 

FREE FOR PDI MEMBERS

SMALL CLE ATTENDANCE FEE FOR NON-MEMBERS

 

Contact Dave Cole, Executive Director of PDI To Register:

 

David ColeP: 800-734-0737
E: coled01@padefense.org

 

 

 

Presented by:

PENNSYLVANIA DEFENSE INSTITUTE

 

CLE program, reception and hockey ticket:

 PDI members and insurance claims personnel: FREE!

 All others: $75

 

Name(s):______________________________________________________________________

 

Firm/Company: _______________________________________________________________

 

E-Mail: ________________________________________________________________________

Payment by check payable to:

Pennsylvania Defense Institute

P.O. Box 697, Camp Hill, PA 17001-0697

For more information contact Dave Cole at coled01@padefense.org






[NOTE:  Tort Talk is not in any way affiliated with this event--just passing along the info]

 

 

Watch Out for Candles in the Frozen Foods Aisle

The case of Ketchum v. Giant Food Stores LLC,  (Pa. Super. Sept. 30, 2014) (Memorandum by Bowes, J.), represents the Superior Court's latest unpublished, non-precedential Opinion on the scope of a possessor of land's liability for harm caused to a business invitee.

This case involved a Plaintiff who allegedly slipped and fell on some candles while shopping in the frozen foods aisle of the Defendant's store.  On appeal after trial, the Plaintiff's challenged the propriety of the trial court's instructions to the jury.

After noting that the trial court properly utilized Pennsylvania Suggested Standard Jury Instruction 18.40 (Pa.SSJI 18.40), which instructed the jury that the Plaintiff was required to prove that the Defendant property owner had actual or constructive notice of a danger, the Superior Court affirmed the trial court's post-trial rulings in favor of the defense and the defense verdict. 

The Court noted that, under this well-settled premise liability law, the burden is upon plaintiff to prove that the premises owner knew or, with the exercise of reasonable care, should have known of the harmful condition, or in the alternative, was responsible for creating the harmful condition.
According to the Opinion, the trial record confirmed that the Defendant's employees regularly inspected the area where plaintiff fell.  Moreover, on the day in question, the area was inspected about 13 minutes before Plaintiff's alleged accident.  There was no evidence that the Defendant created the dangerous condition.  

Anyone wishing to review this decision by the Pennsylvania Superior Court may click this LINK.
 
Source:  Case Digests of Pennsylvania Law Weekly (October, 2014)

Split of Authority in Schuylkill County on Post-Koken Consolidation vs. Severance of Claims Issue

In the Tort Talk blog post a few days ago on the recent Schuylkill County Court of Common Pleas Post-Koken decision in the case of Wall v. Ebersole, Erie Ins. and Donegal Ins., in which Judge Miller ruled in favor of keeping the claims consolidated, it was noted that Judge Miller relied upon a prior Schuylkill County decision issued by Judge John E. Domalakes in the case of Foster v. Naresh and Atlantic States Ins. Co., No. S-2298-2013 (C.P. Schuylkill Co. April 29, 2014 Domalakes, J.). [Click HERE to view that post on the Wall case].

A copy of the Foster decision has been secured.

According to the Opinion, the Defendant UIM carrier filed Preliminary Objections to the Plaintiff's Complaint alleging a misjoinder of the negligence claim against the tortfeasor with the breach of contract claim against the UIM carrier for UIM benefits under one caption in violation of Pa.R.C.P. 2229, pertaining to permissive joinders of causes of action. 

With this argument, the defense cited to a prior Schuylkill County decision by Judge Jacqueline L. Russell in the case of Corridoni v. Temple and MetLife (click HERE to view that Tort Talk blog post), in which a ruling was handed down severing the negligence claims against the tortfeasor from the UIM breach of contract claims against the UIM carrier.

The UIM carrier Defendant in the Foster case also argued that allowing the claims to be consolidated would improperly bring evidence of insurance before the jury at trial.

In reaching his decision in Foster, Judge Domalakes emphasized the reasoning of Judge Terrence R. Nealon in the Lackawanna County Post-Koken decision in Bingham v. Poswistilo, 24 D.&C.5th 17 (C.P. Lacka. Co. 2011 Nealon, J.), finding that Judge Nealon had reviewed the same issue in great detail and with thorough reference to the cases to date.  In the end, Judge Nealon ruled that negligence and UM/UIM claims could be permissibly joined under one caption pursuant to Pa.R.C.P. 2229(b) and that a trial court judge could properly address the issue of evidence of insurance at trial.  [Click HERE for the Tort Talk blog post on Judge Nealon's decision in Bingham].

Judge Domalakes also referenced the Pennsylvania Superior Court decision in Stepanovich v. McGraw as indicating a leaning of that court that the joinder of claims was not improper and that a trial court judge could indeed deal with issues of insurance at trial so as to avoid prejudice to any party.  In light of this suggestion by a reading of the Superior Court's Stepanovich decision, which post-dated the prior decision of Judge Domalakes's colleague on the Schuylkill County Court of Common Pleas in Corridoni, Judge Domalakes chose to follow Judge Nealon's analysis in Bingham and denied the UIM carrier's Preliminary Objections and allowed the case to proceed in a consolidated fashion.

The Foster decision is a good read as Judge Domalakes, as did Judge Nealon in the Bingham case, suggest ways in which a trial court judge could allow and monitor the mentioning of insurance at a Post-Koken trial.

Anyone wishing to review Judge Domalakes's Foster decision out of Schuylkill County (or any other decision mention in this post for that matter) may contact me at dancummins@comcast.net.


I send thanks to Attorney Stephen J. Devine of the Media, PA Law Offices of Kenneth R. Schuster and Associates for providing me with a copy of the Foster decision.

 

 

Correction on Name of Schuylkill County Post-Koken Decision

I incorrectly identified the case name of the Schuylkill County Post-Koken case summarized in yesterday's post.  The correct case name is:

Wall v. Ebersole, Erie Ins., and Donegal Ins., No. S-495-2014 (C.P. Schuylkill Co. Oct. 29, 2014 Miller, J.)

I apologize for any confusion.

Post-Koken Decision in Favor of Consolidation Out of Schuylkill County

In a recent Post-Koken decision out of Schuylkill County in the case of Wall v. Ebersole, Erie Ins., and Donegal Ins., No. S-495-2014 (C.P. Schuylkill Co. Oct. 29, 2014 Miller, J.), Judge Charles M. Miller denied a second-level UIM carrier's request for a severance of claims and a directive to the Plaintiff to file a separate, later suit against the second-level UIM carrier once the liability claims and first-level UIM claims were concluded.

According to the Opinion, the Plaintiff alleged serious injuries as a result of a motor vehicle accident and sued, under one caption, the third party tortfeasor, a first-level UIM carrier, and a second-level UIM carrier.

The second-level UIM carrier filed Preliminary Objections seeking to have the claims asserted against it severed out from the other claims.

The Court denied the carrier's Preliminary Objections and rejected that carrier's arguments pertaining to the danger of improper references to insurance at trial.  The court also noted that the interest of judicial economy would be served by keeping all of the cases consolidated.  In support of his decision, Judge Miller cited the previous Post-Koken decision by Judge Domalakes, his colleague on the Schuylkill County Court of Common Pleas, in the case of Foster v. Naresh and Atlantic States Ins. Co., S-2298-2013 [I will attempt to secure a copy of that decision for dissemination here].

Notably, Judge Miller also stated in his decision in the Wall case that "Plaintiff cannot complain of the right of three defense attorneys to ask questions during the course of the trial, because the Plaintiffs have joined all three Defendants.  Likewise, the carriers cannot object that their due process rights were violated."


Anyone wishing to review a copy of this case may contact me at dancummins@comcast.net.


I send thanks to Attorney Mike Pisanchyn of the prevailing Plaintiff's attorney's firm of the Pisanchyn Law Firm for forwarding this case to my attention.  The Opinion and Order lists Attorney Lee Albright of that office as the attorney of record.