Friday, February 28, 2014

Limited Tort Summary Judgment Motion Denied in Monroe County

Judge David J. Williamson of the Monroe County Court of Common Pleas recently denied a limited tort motion for summary judgment in the case of Haubrich v. Staniszewski, PICS Case No. 14-0160 (C.P. Monroe Jan. 9, 2014 Williamson, J.).

According to the Pennsylvania Law Weekly case digest of this opinion, the plaintiff was 37 weeks pregnant at the time of the subject motor vehicle accident.  The plaintiff alleged that, as a result of the accident, she was required to undergo an emergency C-section 12 days prior to her scheduled C-section surgery date.  The plaintiff also alleged neck and back injuries.

In addition to arguing that genuine issues of material fact existed as to whether or not she had sustained a "serious injury" as a result of the accident, the plaintiff asserted that the emergency C-section met the test in that it impaired her ability to carry her unborn child to the scheduled delivery date.

Judge Williamson agreed that the case should be allowed to proceed to a jury determination on the limited tort issues presented and, as such, denied the defendant's motion for summary judgment.

Anyone wishing to review this case may click this LINK.

  

Source:  “Digest of Recent Opinions," Pennsylvania Law Weekly (Feb. 11, 2014).   

Wednesday, February 26, 2014

Pennsylvania Supreme Court Declines Opportunity to Address Household Exclusion Case

By Order only, the Pennsylvania Supreme Court has denied a Petition for Allowance of Appeal in the case of Swarner v. Mutual Benefit Group, No. 793 MAL 2013 (Pa. Feb. 19, 2014).

Tort Talkers may recall that, at the Superior Court level, the court in Swarner  reviewed the Household Exclusion in an automobile insurance policy in the context of an application of the Utica Mutual factors as to whether or not an injured party was “occupying” a vehicle at the time of the accident.
For more details, here's the LINK the Tort Talk blog post on the Superior Court's decision in Swarner.  The blog post contains a link to that Opinion.

I send thanks to Steve Mahan, Esq., Law Clerk at Handler, Henning & Rosenberg, LLP for bringing this case to my attention.  Attorney Matthew S. Crosby of that office handled the Swarner case.

Plaintiff's Motion to Remand Auto Law Bad Faith Claim Back to State Court Granted in Western District of PA



In the Federal Western District of Pennsylvania Court case of Brewer v. GEICO, No. 13-1809 (W.D. Pa. Jan. 22, 2014 Fischer, J.) (mem.), Judge Nora Barry Fischer addressed a plaintiff's Motion to Remand and ruled that an uninsured motorists carrier's removal of the state court filed matter to Federal Court had not met the requirements to support such a maneuver and the case was therefore sent back to state court.

In Brewer, the plaintiff filed breach of contract and bad faith claims along with a request for punitives and attorney's fees against his own uninsured motorist insurer in state court.

The carrier removed case on basis that recovery under the bad faith claim may exceed $75,000.

In this matter, although plaintiff agreed to stipulate that all claims combined would not exceed $75,000, defendant refused to accept the proposed stipulation, noting that a jury would be available in federal court on the bad faith claims presented.

The court noted that, under 28 USC § 1446(c) and the prevailing case law, the first question to be analyzed was whether the defendant carrier met its burden of showing by a preponderance of evidence that the amount in controversy exceeded $75,000 on the date the case was removed.

The court found that the defendant carrier's good faith averment in its Notice of Removal that the amount in controversy exceeds $75,000 was insufficient.

According to the record before the court, the plaintiff had demanded only policy limits in the breach of contract claim which was $15,000.  Moreover, the plaintiff only alleged in the Complaint that the bad faith claim exceeded $30,000 which was the county court's arbitration limit.

Judge Fischer found that the defendant carrier had failed to establish that the bad faith claim even approached $60,000, let alone exceeded it.  Consequently, since the case presented was not found to meet the $75,000 federal jurisdictional threshold, removal was ruled improper, and the plaintiff's Motion for Remand was granted.

Anyone wishing to review the Opinion issued in the Brewer case may click this LINK.

Source of imagewww.strasburger.com


Monday, February 24, 2014

Judge Mannion Follows Federal Middle District Rule in Favor of Consolidation of Post-Koken UIM/Bad Faith Claims


In his February 21, 2014 Memorandum and Order issued in the Post-Koken case of Griffiths v. Allstate Ins. Co., No. 3:13 - CV - 02674  (M.D. Pa. Feb. 21, 2014 Mannion, J.), Middle District of Pennsylvania Federal Court Judge Malachy E. Mannion issued a detailed Opinion outlining his rationale for following the majority rule in the Middle District in favor of denying Motions to Sever bad faith claims from the breach of contract claim for UIM benefits. 

Judge Mannion reviewed the issue under the bifurcation rules and factors set forth in Fed.R.C.P. 42(b) to find that it would be more efficient to keep the claims consolidated.  The court also noted that precautions could be implemented by the court in discovery and at trial to address any issues that may arise by virtue of the litigation of such claims in conjunction with one another.

Anyone wishing to review Judge Mannion's Memorandum and Order in the Griffiths case may click this LINK.

The Post-Koken Scorecard on the Tort Talk blog (go to www.TortTalk.com and scroll down the right side for the link to the Scorecard) has been updated with this synopsis.

Source of imagewww.pamd.uscourts.gov

Split of Authority on Allowing Deposition of Claims Representatives in Post-Koken Cases Continues


In a February 20, 2014 Order (with explanatory rationale in a footnote) in the case of Wagner v. State Farm Mut. Automobile Ins. Co., No. 5:13 - CV - 06645 (E.D. Pa. Feb. 20, 2014 Sitarski, M.J.),  Magistrate Judge Lynne A. Sitarski of the Eastern District Federal Court of Pennsylvania denied the Plaintiff's Motion to Compel and granted State Farm's Motion for a Protective Order to prevent the deposition of a State Farm claims representative and claims manager as requested by the Plaintiff in this Post-Koken UIM case.

According to the explanatory details provided by the court, the Plaintiff contended that the depositions of the claims professionals was necessary to enable the Plaintiff to meet his burden of proof at trial. 

The Defendant carrier countered with a primary argument that information about the process of claims handling was not relevant in the Plaintiff's breach of contract claim particularly where no bad faith was being asserted.  The defense additionally asserted that it would be unreasonable, inconvenient, and expensive to require the claims professionals to attend a deposition where the redacted claims file had already been produced by the carrier.

The Court found that that the Defendant carrier had demonstrated good cause for the issuance of a protective Order to preclude the requested depositions.  As such, the carrier's Motion for a Protective Order was granted and the Plaintiff's Motion to Compel was denied.

Anyone wishing to review this Order containing the Court's rationale may click this LINK.


Commentary:

There remains a split of authority, and currently no appellate guidance, on this Post-Koken issue of whether or not the depositions of the claims professionals handling the UM/UIM claim can be secured in a Post-Koken breach of contract action against the UM/UIM carrier. 

To review at least some of the decisions on this issue, go to the Tort Talk Post-Koken Scorecard by going to www.TortTalk.com and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on that title and/or the date noted below it.

Once you get to the Tort Talk Post-Koken Scorecard, scroll down the Scorecard until you get to this particular topic. 

Please feel free to email me for a copy of any cases you see that you may need.  If I have a copy--and I do have a copy of most of the cases listed--I will send it to you.


Source of image: www.huseby.com

Friday, February 21, 2014

FORTHCOMING CHANGES TO RULES OF ETHICS



Important News on CLE Requirement Changes:
Pennsylvania Continuing Legal Education Board Announces Increases in Ethics Requirement and Distance Learning Options


February 4, 2014 - The Pennsylvania Continuing Legal Education Board has announced changes in rules and regulations that will permit more credits to be earned via distance learning, and will increase the annual ethics requirement.

By Supreme Court Order, Pa.R.C.L.E. Rule 108 (e) has been changed to increase the amount of credits lawyers may earn via alternate delivery methods from four (4) to six (6) credits annually. The board also adopted a regulation change to increase the ethics component of the annual CLE requirement from one (1) to two (2) credit hours. The total number of CLE credits required annually will remain 12 hours.

The amendments to the rules and regulations will take effect with CLE compliance periods that have requirement deadlines in 2015. 


The ethics credit increase marks the first significant modification to the CLE requirement since 1996 when the total requirement expanded from nine credits to twelve. The new provisions for distance learning will provide lawyers the option of completing up to half of their annual requirement through distance learning and computer-based education. 

 

Effective Dates of CLE Requirement Changes
by Compliance Group:
• Group 1:
May 1, 2014 - April 30, 2015
• Group 2:
September 1, 2014 - August 31, 2015
• Group 3:
January 1, 2015 - December 31, 2015



The following new judicial ethics rules set forth in the recently revised Code of Judicial Conduct (effective 7/1/14), may also be of interest to litigators:
 
 (1) Rule 2.6(B), Ensuring the Right to Be Heard: "A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement."

 
(2) Rule 2.9(A)(4), Ex parte Communications: "A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge."

 
(3) Rule 2.11(A)(4), Disqualification: "A judge shall disqualify" if "[t]he judge knows or learns that a party, a party's lawyer, or the law firm of a party's lawyer has made a direct or indirect contribution(s) to the judge's campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge's consideration of a case involving the party, the party's lawyer, or the law firm of the party's lawyer."

 
(4) Rule 2.14, Disability and Impairment: "A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program."


I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing the CLE changes noted above to my attention.

Source of image: www.ethics.tamu.edu


 

Summary Judgment Denied in Legal Malpractice Claim in Context of Real Estate Transaction



Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently denied a motion for summary judgment legal malpractice and insurance policy and exclusions questions in the context of a real estate transaction and related title insurance in the Brogan case which has provided fodder on other related issues as previously summarized here on Tort Talk.

In this latest decision out of the case, Judge Nealon denied the defendant's motions for summary judgment on the grounds that genuine issues of material fact and credibility issues existed to allow the case to proceed to the jury.

Should you be facing issues in the context of legal malpractice claims and/or questions of exclusions under a title insurance policy, this Opinion provides a current status of the applicable law of Pennsylvania on these topics.  Judge Nealon's latest decision in Brogan can be viewed HERE.

Tuesday, February 18, 2014

Federal Eastern District of PA Court Addresses Coverage Question in Slip and Fall Case

In his recent decision in the case of Sabia Landscaping v. Merchants Mut. Ins., PICS Case No. 13-3167 (E.D. Pa. Nov. 6, 2013 DuBois, J.), Judge Jan E. DuBois denied a insurance company’s federal court’s Motion to Dismiss in a coverage action and found that the Defendant carrier had a duty to defend its insured against claims asserted in an underlying slip and fall case.  

The insured, Sabia Landscaping, brought suit against its carrier, Merchants Mutual Insurance Company, seeking a declaratory judgment that the carrier had a duty to defend Sabia Landscaping in the underlying tort action, and if necessary, to indemnify it for any damages for which it may be found liable.   The insured also asserted claims due to contracting bad faith.  

The carrier argued that the allegations of the underlying Complaint did not come within the insured’s policy because the policy excluded for coverage for bodily injury arising out of a “completed” snow plowing operations.   The carrier asserted that the underlying Plaintiff’s alleged injuries occurred after the landscaping company’s work was complete and, as such, the exclusion applied.

Judge DuBois rejected the carrier’s argument after comparing the insurance policies against the allegations in the underlying Complaint.  The Court found that the claims asserted in the Complaint could potentially come within the coverage of the policy based upon the factual allegations in the Complaint which appeared to indicate that the injury may have occurred before the landscaping company’s work was complete.  

Accordingly, the Court ruled that the carrier had a duty to defend Sabia Landscaping until such time as the claims were confined to a recovery that the policy did not cover.  

Having ruled in favor of the insured in this regard, the Court also found that the insured was entitled to a reimbursement from the carrier for attorney’s fees and costs the insured had incurred to date in defending the underlying claim.  

The Court declined to find that the carrier had a duty to indemnify the insured as the issue of whether or not the insured was liable remained pending in the underlying action.  

The Court also denied the carrier’s Motion to Dismiss the breach of contract claim and the bad faith claim asserted by the insured as the Court found that the Plaintiff had properly pled those types of claims.  

Anyone wishing to review this Opinion may click this LINK.


Source: "Case Digests" Pennsylvania Law Weekly (12/10/13).

Monday, February 17, 2014

Celebrating President's Day



"There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be --honest at all events; and if in your own judgment you cannot be an honest lawyer-- resolve to be honest without being a lawyer."

--Abraham Lincoln


Source of image: www.estsy.com

Friday, February 14, 2014

"Spread a Little Love" - An Article for Valentine's Day



In honor of Valentine's Day, I figured I would re-run this article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly,(c) 2009 Incisive Media US Properties, LLC (now known as American Law Media) as well as here on Tort Talk:


Spread A Little Love:

Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@comcast.net


The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.

With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff
Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls
It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others
See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.

Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology
Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile
In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies
Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse
Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself
Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •


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

Source of photo: Image: Salvatore Vuono / FreeDigitalPhotos.net

Wednesday, February 12, 2014

Judge Williamson of Monroe County Addresses Necessity of Expert Testimony in Support of Negligence Claim

In his recent decision in the case of S&S Family Partnership v. William H. Lane, Inc., No. 7858 - CV - 2007 (C.P. Monroe Jan. 16, 2014 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed the necessity of a Plaintiff producing expert testimony in support of its negligence claim in order to be able to proceed beyond the motion for summary judgment stage and to trial.

The Plaintiff in this case owned a restaurant that sustained runoff water damage as a result of a nearby drainage basin that was allegedly constructed and maintained by the defendants.

The Defendants filed a Motion for Summary Judgment on the grounds that the Plaintiff had failed to produce any expert opinion on the issues of negligence and causation.  The Defendants asserted that where engineering or professional negligence was alleged, a plaintiff must produce expert testimony to support such claims.

The Plaintiff's countered with the argument that the claims presented were based on basic negligence principles and were not grounded in any professional negligence claim.  The Plaintiff asserted that allegations against the construction contractor Defendants could be addressed by lay people on the jury in the absence of any expert testimony.


Judge David J. Williamson
Monroe County
While Judge Williamson agreed with the Plaintiff that the claims presented did not amount to a professional negligence claim, the court nevertheless held that the case presented facts and circumstances of alleged negligence and causation pertaining to the design, maintenance, and care of a drainage basin to that would be beyond the ordinary knowledge of the lay people who would make up the jury.

Accordingly, the court ruled that the Plaintiff was indeed required to present expert testimony and the failure to do so resulted in the entry of summary judgment in favor of the Defendants.

Anyone wishing to review Judge Williamson's Opinion in the case of S&S Family Partnership may click this LINK.

It is noted that Attorney Kimberly M. Kostun, special counsel with Scranton office of the firm of Hinman, Howard & Kattell, LLP represented Defendant, William H. Lane, Inc., in this matter.

Judge Minora of Lackawanna County Upholds Grant of Plaintiff's Request for Cooper Discovery on Defense IME Expert

Lackawanna County Court of Common Pleas
Scranton, PA

In his recent decision in the case of 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 which allowed a Plaintiff to gather discovery on the finances earned and prior litigation involvement of a defense IME doctor dating back three years.

In so ruling, Judge Minora followed the standard set forth in the cases of Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) and Feldman v. Ide, 915 A.2d 1208 (Pa.Super. 2007).

While the appellate court cases of Cooper and Feldman delineate the type of supplemental discovery allowed with respect to the potential bias of an expert witness once a threshold showing is made that there are reasonable grounds to believe that the witness falls in the "professional witness" category, neither appellate decision provides concrete guidance on what must be shown to meet that threshold issue.

In his Opinion in Guffey, Judge Minora describes and analyzes the types of detailed evidence submitted by Plaintiff's counsel in support of his position that the defense expert was an alleged professional witness. 

Accordingly, the Guffey decision can serve as a guide to the type of evidence that can be utilized to show that a defense (or plaintiff's) 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.

Anyone wishing to review Judge Minora's decision in Guffey may click this LINK.

Monday, February 10, 2014

SAVE THE DATE: TORT TALK EXPO 2014 - September 26, 2014 - Mohegan Sun Casino and Hotel, Wilkes-Barre, PA

 
The Annual Tort Talk Expo is being moved from the Spring to the Fall this year:
 
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:
 
 
 
TORT TALK AUTO LAW/CIVIL LITIGATION UPDATE
by
Daniel E.  Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 
 
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
 
 
 
 
MEDICAL HOUR
with
 
Dr. Lucian Bednarz on RSD
and
Dr. Paul Horchos on Post-concussion Syndrome
NORTHEASTERN REHABILITATION ASSOCIATES
 
 
 
 
VIEW FROM THE BENCH
(Panel to be Determined)
 
 
 
 
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
 
As in the past, there will again be door prizes and raffle prizes.
 
Vendor tables available on first-come, first-served basis.  Other sponsorship opportunities in written materials available 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. 
 
More details to follow.
 
 
 
In the meantime, please consider marking your calendar to attend the Tort Talk Expo 2014 on the afternoon of:
 
SEPTEMBER 26, 2014
 
 

Pennsylvania Supreme Court Upholds Prohibition Against 'Error in Judgment' Jury Instruction in Med Mal Cases

In its recent decision in the medical malpractice case of Passarello v. Grumbine, No. 15 and 16 WAP 2012 (Pa. Feb. 7, 2014)(Baer, Todd, Stevens, McCaffery, J.J.)(Maj. Op. by McCaffery, J.)(Castille, C.J., dissenting)(Saylor, J., concurring and dissenting)(Eakin, J., dissenting and joined by Castille, C.J.), the Pennsylvania Supreme Court upheld the Superior Court's prohibition against the use of the "error in judgment" jury instruction in medical malpractice cases.

The "error in judgment" jury instruction was previously utilized by trial court judges to advise jurors that physicians were not liable for their "errors in  judgment" when making medical decisions.

With its decision, the Pennsylvania Supreme Court supported the Superior Court's previous decision in Pringle v. Rappaport, 980 A.2d 159 (Pa. Super. 2009), that such a jury instruction should not be given because it wrongly suggested to jurors that a doctor is not liable for the negligent exercise of his or her judgment in a particular matter, which is the very essence of many medical malpractice actions.

Anyone wishing to review, Justice McCaffery's Majority Opinion in Passarello may click this LINK.

Chief Justice Castille's Dissenting Opinion may be viewed HERE.

Justice Saylor's Concurring and Dissenting Opinion may be read HERE.

Justice Eakin's Dissenting Opinion, which is joined by Chief Justice Castille, can be viewed HERE.

Appellate Case of First Impression - Future Medical Expenses Are To Be Included in Delay Damages Calculation


In a case of first impression, the Pennsylvania Superior Court recently ruled in Roth v. Ross and Erie Insurance Group, 977 MDA 2013, 2014 Pa.Super. 20 (Pa.Super. Feb. 7, 2014 Donohue, Ott, J.J., Platt, S.J.)(Opinion by Donohue, J.), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages due to the Plaintiff on a verdict.

In this Luzerne County Post-Koken case that went to verdict, the jury awarded $40,000 for past pain and suffering and $20,000 for future medical expenses.  In post-trial proceedings, the trial court limited the calculation of delay damages to only include the figure awarded for past pain and suffering on the grounds that no case law was provided to confirm that an award for future medical expenses fell within the definition of "bodily injury" in the context of Rule 238 pertaining to the calculation of delay damages.

The Superior Court reversed and remanded the case back to the trial court for an inclusion of the figure awarded for future medical expenses in the delay damages calculation as well.  The Superior Court found that the wording of Rule 238 was clear and unambiguous in requiring the addition of delay damages to the verdict in all civil cases where a plaintiff seeks monetary relief for bodily injury. 

The appellate court held that future medical expenses were indeed, "by definition," monetary relief for bodily injuries caused by the subject accident and, as such, should be included in the delay damages calculation.

Anyone wishing to review this Opinion by the Pennsylvania Superior Court in the Roth case may click this LINK.

I send thanks to the prevailing Plaintiff's Attorney Brian Butler of the Wilkes-Barre, PA office of Lenahan & Dempsey for bringing this case to my attention.


Source of image: www.westlakefinancialadvisors.com


Wednesday, February 5, 2014

Judge Terrence R. Nealon of Lackawanna County Addresses Parameters of Protective Order Relative to Depositions

In his recent decision in the case of Arvonio v. PNC Wealth Management, No. 11 - CV - 478 (C.P. Lacka. Co. Dec. 20, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the parameters of a proper protective order requested under Pa.R.C.P. 4012 with respect to depositions.

In applying Pa.R.C.P. 4012 in Arvonio, the court took a middle road and allowed the depositions to go forward but limited scope of the deposition to certain pertinent issues that were at the forefront of the current status of this case.

Anyone wishing to review this Opinion may click this LINK.


Monday, February 3, 2014

South Jersey Is Distinct From North Jersey

I digress from the law this morning to make an important point.....

As a native SOUTHERN New Jerseyan (please don't tell anyone I originate from New Jersey), I am once again compelled to point out that most, if not all, negative news coming out of Joisey or about Joisey originates from NORTH JERSEY.

For example, "The Housewives of New Jersey," "Jerseylicious," "Jersey Shore" (most of those characters were from New York!), and now......Governor Christie and his latest news, all hail out of North Jersey.  Governor Christie was born in Newark (North Jersey) and grew up in Livingston (North Jersey).

NJ Governor Chris Christie

In contrast, other than an inordinate amount of yellow Iroc-Z Camaros driving around back in the 80's, in my humble and biased estimation South Jersey is the better half of the state.

 

Such notable people originating from South Jersey include actor Michael Landon, Olympian Carl Lewis, Actor John Forsythe, Baltimore Ravens Quarterback Joe Flacco to name a few.  The great poet Walt Whitman lived in South Jersey the latter part of his life.  And don't forget Lucy the Elephant.



Simply put, South Jersey has a different feel, a different kind of people, doesn't have a chemical odor in the air, and is the more green, suburban, natural, and open part of the state as opposed to being overly crowded, gritty, and grey. 

In large part, Southern Jerseyans lean towards Philadelphia ways, while North Jerseyans have more in common with a New York City style.

Not saying North Jerseyans are bad, just making a distinction that they're a different breed of New Jerseyan and, as a native Southern New Jerseyan, I personally favor and prefer that half of the Garden State.

Just sayin'.

Partial Summary Judgment Granted by Judge Mannion in Federal Middle District Auto Law Bad Faith Claim


Federal Middle District of Pennsylvania Judge Malachy E. Mannion recently granted a motion for partial summary judgment in favor of the defense in a bad faith claim brought under 42 Pa.C.S.A. § 8371 arising out of an underlying UIM claim pursued by a limited tort plaintiff.

In the bad faith case of  Miezejewski v. Infinity Auto Ins. Co., No. 3:12-1000 (M.D. Pa. Jan. 22, 2014 Mannion, J.) (mem.), the court granted a carrier's motion for partial summary judgment where the primary issue presented was whether it was bad faith for the UIM carrier to not include plaintiff's wage loss claim in its damage calculation.

The limited tort plaintiff also asserted that the carrier acted in bad faith by failing to review the first party benefits file, failing to request permission to speak with the plaintiff, failing to review pre-accident medical records, and failing to give any value to plaintiff's wage loss claim.

Judge Malachy E. Mannion
Federal Middle District
Court of Pennsylvania
After reviewing the record before the court on the motion, Judge Mannion found that the plaintiff never demanded that defendant review the first party file and that the plaintiff never established what was in the file or how it would have affected the outcome.  The court also noted that the insurer's failure to request permission to speak with the plaintiff was not bad faith as the insurer was aware of the plaintiff's position from regular communications with plaintiff's counsel.

The court noted that, under Pennsylvania bad faith law, there is no legal requirement that insurers conduct perfect investigations.

Ultimately the court ruled in Miezejewski that, based upon the case presented, the insurer had reasonable bases to make the increasing offers it made and to inquire further into plaintiff's prior medical condition and wage loss claim particularly where some of the medical records revealed pre-existing issues, and employment documents established that the plaintiff continued to perform her job one year post accident until being terminated along with four other workers.
 
Anyone wishing to review Judge Mannion's Opinion in the bad faith case of Miezejewski may click this LINK.