Wednesday, April 30, 2014

Pennsylvania Supreme Court Addresses Scope of Statutory Employer Immunity


In its recent decision in the case of Patton v. Worthington Associates, Inc., 2014 WL 1236499 (Pa. March 26, 2014) (Opinion by Saylor, J.) (concurring Opinion followed by Baer, J.), the Pennsylvania Supreme Court held that neither a subcontractor nor a subcontractor’s sole shareholder was an “independent contractor” relative to the statutory employer provisions of the Workers’ Compensation Act. 
 
By way of background, a subcontractor in this matter brought a negligence action against the general contractor to recover for injuries alleged sustained at a work site from a 14 foot fall.  
 
After a trial in the Bucks County Court of Common Pleas, the trial court entered judgment on the verdict in favor of the Plaintiffs and denied the general contractor’s Motion for Judgment Notwithstanding the Verdict (JNOV).   The general contractor appealed the Supreme Court ruled as noted above.  
 
The Pennsylvania Supreme Court noted that, pursuant to the Workers’ Compensation Act, general contractors are deemed to bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors and, in this sense, general contractors are considered to be “Statutory Employers” relative to workers’ compensation liability, even though they are not common-law employers of the subcontractor’s employees.
 
Accordingly, the court went on to note that such Statutory Employers, including general contractors, could enjoy a measure of immunity from liability under the Workers’ Compensation Act for tort claims pertaining to work-related injuries.  
 
The Supreme Court went on to note that the governing law should have been applied by the trial court at the summary judgment stage before this case ever reached a trial in which the jury ruled in favor of the Plaintiff.  
 
In light of this decision in the case of Patton v. Worthington Associates, many general contractor and subcontractor Defendants in construction cases where a construction worker has been injured on the job have been amending their Answer and New Matter, or in federal court, their Answer and Affirmative Defenses, to include the statutory employer defense in order to preserve that defense to be raised at the Motion for Summary Judgment stage of the case.  
 
Anyone wishing to review a copy of Justice Saylor's majority opinion in the case of Patton v. Worthington Associates, Inc., may click this LINK.  Justice Baer's concurring opinion may be viewed HERE.  

Tuesday, April 29, 2014

PA Supreme Court Rules in Barrick


The Pennsylvania Supreme Court's much-anticipated decision on the issue of whether an attorney's communications with an expert are discoverable in the case of Barrick v. Holy Spirit Hospital, No. 76 MAP 2012 (Pa. April 29, 2014) was handed down yesterday and it was a.......SPLIT 3-3 DECISION?!

Justice Correale Stevens sat out of the decision-making process having weighed in on the issue at the Superior Court level.

The unfortunate split decision on such an important issue allows the en banc Superior Court decision (8-1) to stand which held that communications between a lawyer and an expert witness are not discoverable.

Justice Max Baer wrote an Opinion in support of affirmance which was joined by Justice Seamus P. McCaffery and Justice Debra M. Todd.  That Opinion can be viewed HERE  and HERE

Justice Thomas G. Saylor wrote an Opinion in support of reversal that was joined by Chief Justice Ronald D. Castille and Justice J. Michael Eakin.  The Opinion can be viewed HERE.

If you are interested in the history of this Barrick case as it proceeded up the appellate ladder, you can go to www.TortTalk.com and type in "Barrick" in the Search Box near the upper right hand corner of the Tort Talk Blog to review other posts.

Source: "Attorney-Expert Privilege Stands After Justices Split." by Gina Passarella. The Legal Intelligencer (April 29, 2014).



Detailed Decision by PA Superior Court in Duty to Defend Coverage Case Appealed to PA Supreme Court

In its December of 2013 decision in the case of Indalex v. National Union Fire Ins. Co. of Pittsb., 83 A.2d 413 (Pa.Super. 2013)(Donohue, Shogan, and Wecht, J.J.; Opinion by Shogan, J.), the Pennsylvania Superior Court offered one of its latest and most detailed recitations of the law of insurance contract interpretation and the duty to defend in the context of a products liability case and faulty workmanship claims.

The Superior Court ultimately ruled, after a comparison of the underlying Complaints at issue to the policy language in question, that the carrier did indeed have a duty to defend its insured.  In so ruling the court rejected an argument by the carrier the "gist of the action" doctrine (contract actions can not be recast into tort actions by artful pleading) did not serve to preclude coverage.

The Superior Court noted "that the gist of the action doctrine has not been adopted by our Supreme Court in an insurance coverage context."  The Superior Court in Indalex found persuasive the analysis of the United States District Court for the Western District Court of Pennsylvania on the relationship between the gist of the action doctrine and the duty to defend. 

In that regard, the Federal Western District Court of Pennsylvania ruled that "[i]f the underlying complaint contains more than one cause of action, and one of them would constitute a claim within the scope of the policy's coverage, the insurer must defend the complaint until it can confine the claim to a recovery excluded from the scope of the policy." Citing National Fire Ins. Co. of Hartford v. Robinson Fans Holdings, Inc., Not Reported in F.Supp.2d, 2011 WL 1327435 (W.D.Pa.2011), citing American States v. Maryland Cas., 427 Pa.Super. 170, 628 A.2d 880, 887 (Pa.Super.Ct.1993).

The Indalex court found that, since tort claims were pled in the Complaints in the underlying suits, such tort claims must be considered in the ordinary duty to defend insurance contract analysis (i.e., do the allegations of the Complaint fall within the coverage provisions of the policy?).

The court in Indalex went on to state that "[w]hether the laws under which the complaints are brought will bar those tort claims because of the application of the gist of the action or a similar doctrine will be decided by the courts presiding over those lawsuits. Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate. Citing with "See" signal Berg Chilling Sys., 70 Fed.Appx. [620] at 624 [(3rd Cir. 2003)](stating that a court undertaking a duty to defend analysis should not rely entirely upon whether the plaintiff characterizes its claim as one arising in tort or contract).

The Superior Court in Indalex ultimately held that "[b]ecause the underlying complaints alleged defective products resulting in property loss, to property other than Appellants' products, and personal injury, we conclude there was an “occurrence” and reverse the order granting summary judgment."


It is reiterated that, in addition to addressing the novel issue of the application of the gist of the action doctrine in the context of a duty to defend argument, the Indalex Opinion offers an excellent overview of the appropriate standard of review in a declaratory judgment action on the issue of the duty to defend under a liability insurance policy.

The Pennsylvania Superior Court's decision can be viewed HERE.


UPDATE:

Reargument in this case was denied by the PA Superior Court on February 10, 2014.


A Petition for Allowance of Appeal to the PA Supreme Court was filed on March 12, 2014.
 

 

 

I send thanks to Don Bankus, Legal Affairs Manager for Insurance Agents & Brokers of PA, MD & DE (www.IABforME.com) for bringing this to my attention.
 

Friday, April 25, 2014

Pennsylvania Supreme Court To Assist Third Circuit With Important Bad Faith Issue

In an Order handed down yesterday, the Pennsylvania Supreme Court agreed to hear the appeal of the Third Circuit Court of Appeals for advice on the following important issue in the case of Allstate Prop. and Cas. Co. v. Wolfe, No. 23 MM 2014 (Pa. April 24, 2014):

"Under Pennsylvania law, can an insured tortfeasor assign his or her bad faith claim against an insurer, under 42 Pa.C.S. § 8371, to an injured third party?"

By way of background, Judge John E. Jones, III of the U.S. Federal Court of the Middle District Court of Pennsylvania previously ruled in this case, at 877 F.Supp.2d 228 (M.D.Pa. 2012), that both the insured's bad faith claims and Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims were indeed assignable. 

In the underlying third party case, an Allstate insured defendant who was allegedly driving under the influence at the time of the accident, incurred compensatory and punitive damages as a result of a jury verdict.  After that trial, the insured defendant assigned his alleged rights to sue the carrier for bad faith and violation of the UTPCPL to the plaintiff to pursue. 

The federal trial court denied the carrier's motion to dismiss the claims presented and the case went up to the Third Circuit which has now tossed the issue over to the Pennsylvania Supreme Court for an analysis and decision.

Anyone wishing to review the Pennsylvania Supreme Court's simple Order in this regard may contact me at dancummins@comcast.net.

I send thanks to Attorney Suzanne Tighe of the Wilkes-Barre, PA office of Thomas, Thomas & Hafer for bringing this matter to my attention.

PA Commonwealth Court Reaffirms Rule Requiring Statute of Limitations Defense to be Raised in New Matter (Not Preliminary Objections)


Beware of the Statute of Limitations


In a March 12, 2014 decision, the Pennsylvania Commonwealth Court held in the case of Daniel v. City of Philadelphia, PICS Case No. 14-0443 (Pa.Cmwlth. March 12, 2014 Friedman, S.J.), that a Plaintiff’s Complaint could not be reinstated after the expiration of the statute of limitations where the Plaintiff did not make good faith attempts to serve the Defendant with original process on the initial Complaint.  

According to the summary of this case, this action arose out of a slip and fall event. 

Just prior to the expiration of the two (2) year statute of limitations, the Plaintiff filed a personal injury Complaint against the City of Philadelphia.  The Plaintiff did not serve the Complaint at that time.  

Rather, approximately eight (8) months later, and over seven (7) months after the expiration of the statute of limitation, the Plaintiff reinstated the Complaint and, a few days later, served the Complaint on the City. 

The City filed an Answer and New Matter asserting that the statute of limitations had expired.   The City then moved for a judgment on the pleadings alleging that the Plaintiff had failed to serve the Complaint before the statute of limitations had expired, thereby barring her cause of action.  

The Plaintiff countered with an argument that the City had waived the issue by failing to raise it in Preliminary Objections. 

The Commonwealth Court affirmed the trial court’s decision that the City had properly raised its statute of limitations defense by way of Answer and New Matter under Pa. R.C.P. 1030(a), which rule mandates that all affirmative defenses, including the statute of limitations, must be pleaded in a responsive pleading under the heading “New Matter.”  As such, the Court rejected the Plaintiff’s argument that the statute of limitations argument should be raised by way of Preliminary Objections. 

Moreover, the appellate court agreed with the trial court that pursuant to Pa. R.C.P. 1007(2), the Plaintiff must serve original process within thirty (30) days after the filing of a Complaint.    If service is not made within that time, the Prothontoary may reinstate the Complaint thereby continuing the validity of the Complaint.  

The Court went on to note that a Plaintiff has the further duty to promptly serve the Complaint and not prevent or delay service of the Complaint.  The Court, following the case of Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), noted that a failure to promptly notify the Defendant of the suit nullifies the commencement of the action.  

In order to toll the statute of limitations under these circumstances, a Plaintiff must make a good faith effort to serve the Complaint in a timely fashion.  

In this matter, the Plaintiff filed her lawsuit just prior to the expiration of the two (2) year statute of limitations but, thereafter, did not make any attempt to serve this original process.  Accordingly, the Plaintiff was found to have failed to toll the statute of limitations.  

When the Plaintiff attempted to reinstate the Complaint approximately eight (8) months later, the court noted that there was no evidence of a good faith effort to serve the Complaint in a timely  manner.

As such, the Defendant’s Motion for Judgment on the Pleadings was granted on the basis of the expiration of the statute of limitations and the failure to serve the Complaint in a timely fashion.  

 The Pennsylvania Commonwealth Court's decision in Daniel can be viewed HERE.
 
Source:  "Case Digests," Pennsylvania Law Weekly.
 
Source of imagewww.sandz.net

REPEAT AFTER ME: Raise Statute of Limitations Defense by New Matter, Not Preliminary Objections



In its unpublished Opinion in the case of Fieldhouse v. Metropolitan Prop. & Cas. Ins. Co., 1226 EDA 2013 (Pa. Super. April 9, 2014 Bender, P.J., Shogan, J., Fitzgerald, J.)(Mem. by Shogan, J.), the Pennsylvania Superior Court once again confirmed that the proper way to pursue a statute of limitations defense is not by Preliminary Objections, but rather by raising the statute of limitations in the Answer and New Matter as required by Pa.R.C.P. 1030 followed by a Motion for Judgment on the Pleadings and/or a Motion For Summary Judgment as may be appropriate under the circumstances.

Please click HERE if you wish to review this Opinion for future reference.

I send thanks to Scott Cooper, Esq. of the Harrisburg law firm of Schmidt Kramer for publicizing this decision.


Source of imagewww.bankruptcylawyerpa.com










Thursday, April 24, 2014

Plaintiff Barred From Pursuing UIM Claim After Participating in Third Party Non-Binding ADR



In her recent April 9, 2014 decision in the Post-Koken case of Gallagher v. Ohio Casualty Ins. Co., No. 13-0168 (E.D. Pa. April 9, 2014), Judge Nitza I. Quinones Alejandro of the Federal District Court for the Eastern District found that a Non-Binding ADR Award precluded a UIM claim but is not collateral estoppel.

According to the Opinion, the third party portion of this case settled after a non-binding arbitration was held and the arbitrator entered a "settlement value" that was approximately $59,000.00 less than the third party liability limits.
 
The insured Plaintiff initially declined to accept the value determination by the arbitrator and proceeded with the third party case.  However, after the completion of some further discovery, the third party case settled for the same amount as the non-binding 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 even claim existed given the non-binding arbitration value placed upon the case.
 
The insured Plaintiff filed suit.  The UIM carrier continued with its argument that the UIM case could not proceed because the third party was not an "underinsured" motorist under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), the third party coverage was not exhausted, and the claim was barred by collateral estoppel.
 
The Court in Gallagher agreed that the third party was not an "underinsured" motorist as defined by the MVFRL. The only evidence of the other driver being underinsured was the policy limits and the settlement. The Court found that the insured Plaintiff failed to present any evidence that the damages could meet or exceed the third party liability limits of $100,000.
 
Since the only evidence was the arbitrator’s value, the court found that the third party cannot be "underinsured" and that, therefore, the insured Plaintiff could not present a UIM claim.
 
However, the Court noted that the UIM claim would not be otherwise barred by collateral estoppel because the non-binding arbitration did not result in a final judgment as required for that doctrine to apply.

The Trial Court's Opinion in Gallagher can be view at this LINK.  The companion court Order can be viewed HERE.

UPDATE:  This decision was affirmed on appeal by the Third Circuit on January 29, 2015.  However, the Third Circuit stated that its decision was "Not Precedential."  If you wish to see a copy of that Third Circuit opinion, please contact me at dancummins@comcast.net.



To review other Tort Talk posts on other cases addressing the application of the Collateral Estoppel Doctrine in the context of Post-Koken third party liability/UIM auto accident cases, click this LINK.


 

Tuesday, April 22, 2014

Big Post-Koken Question Of How to Handle "Insurance" At Trial Will Remain Unanswered For Now

The Pennsylvania Supreme Court has denied the Petition for Appeal in the Post-Koken case of Stepanovich v. McGraw and State Farm.  Click HERE to review the Court's Order.

Too bad....another opportunity for much-desired appellate guidance on important and novel Post-Koken issues is lost.

Tort Talkers may recall that, at the Superior Court level, that appellate court found no error in allowing two defense attorneys to participate in the trial, one for the tortfeasor Defendant and one for  the UIM carrier Defendant, in a case where the jury was not advised as to the identity of the insurance company Defendant or why there were two defense attorneys.  The double-team defense against the Plaintiff in that matter resulted in a defense verdict.

For more details on the import of the Pennsylvania Superior Court's decision in Stepanovich, which the Pennsylvania Supreme Court has now refused to review, click HERE to review my November 19, 2013 Pennsylvania Law Weekly article on the case entitled "Superior Court Leaves Big Post-Koken Question Unanswered."


Separate IMEs Denied for Cervical Spine/Carpal Tunnel Injuries


In his recent decision in the case of DiGiacinto v. Obelinas, No. 2009-CV-8085 (C.P. Lacka. Co. April 17, 2014 Nealon, J.), Judge Terrence R. Nealon addressed the issue of whether a Plaintiff may be compelled to attend two separate IMEs where the primary injuries alleged are a cervical spine injury and carpal tunnel injuries.

The defense asserted in this matter that they were entitled to have the Plaintiff's alleged injuries evaluated by separate and distinct medical specialists as the types of injuries alleged were often treated by doctors of different specialties.  The defense also argued that the fact that the Plaintiff treated with two separate orthopedic surgeons supported the request for multiple independent medical examinations (IMEs).

The Plaintiff countered with the argument that his injuries were all orthopedic in nature and could all be addressed by a single physician at a single IME.

As noted in the Opinion, Pa.R.C.P. 4010, which governs the parameters of IMEs, is silent on the issue of requests for multiple exams.  In his Opinion, Judge Nealon reviewed a number of cases surrounding the issue, including several previously issued by Judge Carmen D. Minora and Judge Robert A. Mazzoni, also of the Lackawanna County Court of Common Pleas.

Judge Terrence R. Nealon
Lackawanna County
Ultimately, Judge Nealon himself ruled in DiGiacinto that only one IME should be completed under the circumstances presented.  In so ruling, the court did note that there may be instances where it may be appropriate to compel a Plaintiff to attend multiple, separate IMEs such as when the case presents injuries that involve conditions that are treated under the exclusive province of different medical specialties.

As cervical spine disc injuries and carpal tunnel injuries were not within the exclusive domains of separate and distinct medical specialties, the court in DiGiacinto noted that the defense could secure a comprehensive IME through the retention of an orthopedic surgeon or neurosurgeon.

Anyone wishing to review this decision may contact me at dancummins@comcast.net.


Lebanon County Trial Court Agrees to Sever and Stay Bad Faith Claim from Coverage Complaint

In his March 28, 2014, decision in the case of Audrey's Crafts & Home D├ęcor, Inc. v. Penna. Nat'l Ins., No. 2013 - CV - 00511 (C.P. Leb. Co. 2014 Charles, J.), Judge Bradford H. Charles ruled in favor of a severance and stay of Plaintiff’s statutory bad faith claim (42 Pa. C.S. §8371).

The case arose out of a coverage dispute as to whether the insurer owed its insured a duty to defend and/or indemnify it in an underlying copyright infringement lawsuit.

The insured sued the insurer in the Court of Common Pleas of Lebanon County under a Complaint that sought coverage under the policy and recovery of bad faith damages.

The Defendant carrier motioned for a severance and a stay as to the bad faith claims.  The court granted the motion and, in doing so, rejected Plaintiff’s attempt to distinguish this case from those cases involving UIM and bad faith claims (in which this Lebanon County Court of Common Pleas had previously granted severance).  The Court found that the same concerns of prejudice against the insurer in such a scenario are equally applicable to any coverage dispute and should, therefore, be avoided by way of the granting of a motion for severance and stay.

The prevailing defense counsel was W. Darren Powell of the Harrisburg, PA office of Thomas, Thomas & Hafer.

Anyone wishing to review this Opinion may click this LINK.
 

Monday, April 21, 2014

Federal Middle District Judge Mannion to be a Presenter at Tort Talk Expo 2014 (September 26, 2014)

I am pleased to announce that Federal Middle District Judge Malachy E. Mannion has agreed to join the panel of Judges for the "View From the Bench" portion of the September 26, 2014 Tort Talk Expo at the Mohegan Sun Casino. 

Federal Middle District Judge
Malachy E. Mannion


The judicial panel hour will be an ethics hour with an emphasis on tips to improve chances for positive results at settlement conferences and/or during jury selection.



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
 
(Application to be submitted for 3 Substantive, 1 Ethics Credit)
 
 
 
 
 
TENTATIVE PROGRAM TO INCLUDE:
 
 
12:00 pm - 1:00 pm 
"Back to School"
A TORT TALK AUTO LAW/CIVIL LITIGATION UPDATE
by
Daniel E.  Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 
1:00 pm - 2:00 pm 
BAD FAITH UPDATE
by
 
Timothy G. Lenahan, Esq.
LENAHAN & DEMPSEY
 
Scott B. Cooper, Esq.
SCHMIDT KRAMER 
 
Neil T. O'Donnell, Esq.
O'DONNELL LAW OFFICES

Moderator: Daniel E. Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 {BREAK: 2:00 pm - 2:15 pm}
 
 
  2:15 pm - 3:15 pm
MEDICAL HOUR
with
 
Dr. Lucian Bednarz  - Physiatrist - on RSD
and
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
NORTHEASTERN REHABILITATION ASSOCIATES
 
 
 {BREAK:  3:15 pm - 3:30 pm}
 
 
 3:30 pm - 4:30 pm
VIEW FROM THE BENCH
Ethical Considerations
for
Settlement Conferences
and
Jury Selection
 
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
 
 
JUDICIAL PANELISTS
 
Supreme Court Justice Correale F. Stevens 
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Court Judge Malachy E. Mannion
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 
 
 
 
 4:30 pm - 6 pm
POST-SEMINAR COCKTAIL RECEPTION
 
 
THIS YEAR'S CLE SEMINAR WILL BE HELD IN A BALLROOM IN THE NEW HOTEL and SPA AREA AT THE MOHEGAN SUN


TABLE VENDOR SPONSORS TO DATE (Alphabetical):
 
At The Scene

 
Courtside Documents


 
Exhibit A
 
 
 
LexisNexis



Medical Legal Reproductions
 
 


Network Deposition Services




Northeastern Rehabilitation Associates




RecordTrak

 

The MCS Group


 
As in the past, there will again be door prizes and raffle prizes.
 
 
Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at dancummins@comcast.net for more details).
 
 
NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 
 
 
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
 

Friday, April 18, 2014

Time to Shop Over The Weekend



Here's a heads up from the Tort Talk blog--next Wednesday, April 23rd, is Administrative Professionals Day.

Don't forget to acknowledge and thank the ones who make you look good with their hard work!


PLAN TO PLAY HOOKY ON JULY 30TH AT A CLE/BALLGAME


SAVE THE DATE: JULY 30, 2014

On July 30, 2013, the Pennsylvania Defense Institute and the Northeastern Pennsylvania Trial Lawyers Association are combining to put on a 2 hour CLE seminar at the Scranton/Wilkes-Barre Railriders' Stadium to be followed by the noontime game between the Railriders and the Gwinnet Braves.


 The morning CLE program is entitled "Fair or Foul, Have the Umpires Make the Call: Ethical Dilemmas From the Bench."  Two ethics credits offered. Agenda and presenters being finalized.


Source of imagewww.wnep.com

Note:  This advertisement is being disseminated at the request of the PDI.  Neither I, my firm, nor Tort Talk are sponsoring this event.

Thursday, April 17, 2014

"Remember the Days When We Had To..."


By virtue of an amendment to the relevant Rules handed down by the Pennsylvania Supreme Court, the ridiculous and time-consuming requirement of finding and including useless parallel citations to the Pennsylvania State Reporters in briefs filed in the appellate courts has been eradicated.

Hallelujah!  What a welcome change.

See the Rule change HERE.

I send thanks to Attorney Jim Beck of the Philadelphia law firm of Reed Smith and the writer of the award-winning DRUG AND DEVICE LAW BLOG for this excellent tip!

Federal Middle District Court Allows First Party Bad Faith Claim to Proceed

In her recent decision in the case of Neal v. State Farm, PICS Case No. 14-0387 (M.D. Pa. Feb. 18, 2014 Kane, J.), Judge Yvette Kane of the Federal District Court for the Middle District of Pennsylvania allowed a Plaintiff’s bad faith claim to proceed under allegations that the carrier knowingly used a biased independent medical examiner to provide negative reports and and thereby support the carrier’s denial of payments in a first party context. 


The Plaintiff also sued under various provisions of the Motor Vehicle Financial Responsibility Law pertaining to the dispute over the reasonableness and necessity of the Plaintiff’s treatment.  


According to a summary of the Opinion, after being involved in an accident, the insured injured party began receiving payments for her medical expenses from the first party benefits carrier.   Approximately a year later, the carrier retained a doctor to perform an independent medical examination.  


Based upon the IME, the carrier denied further payment of the insured’s medical bills.   The IME report contained conclusions that the Plaintiff had fully recovered from the accident and that the Plaintiff showed signs of symptoms magnification and inappropriate illness behavior.


The Plaintiff insured filed a bad faith suit alleging violations of the Motor Vehicle Financial Responsibility Law and the Unfair Trade Practices Law.  


According to the summary, the insured Plaintiff agreed to the dismissal of claims for breach of contract and deceit.   The Court otherwise allowed the claims for bad faith and other claims related to the carrier’s alleged nonfeasance and misfeasance for failure to pay medical bills to go forward into the discovery phase of the case.   


Anyone desiring a copy of Judge Kane's Opinion may click this LINK.  The accompanying Order can be viewed HERE.




Source:  "Case Digests," Pennsylvania Law Weekly.

Correction for Summary of Phillips v. Lock Decision


In yesterday's post pertaining to the case of Phillips v. Lock, I made an incorrect statement that a defendant must file both a Motion for a Directed Verdict and a Binding Jury Instruction in order to preserve the right to present a Motion for Judgment Notwithstanding the Verdict (JNOV) following the entry of a verdict.

To the contrary, and as reaffirmed in the Phillips v. Lock decision, a defendant must file either a Motion for a Directed Verdict or a Binding Jury Instruction in order to preserve the right to present a Motion for Judgment Notwithstanding the Verdict (JNOV) following the entry of a verdict.

I have corrected this in the original blog post and point out the correction here.

I apologize for this error and send great thanks to Attorney Ed Shaughnessy, an excellent trial attorney in Easton, PA for pointing me in the right direction.

Wednesday, April 16, 2014

Police Reports Generally Not Admissible in Auto Accident Litigations




In its recent decision in the case of Phillips v. Lock, 2014 PA Super 38, No. 1634 EDA 2013 (Pa. Super. Feb. 28, 2014 Shogan, J., Ott, J., and Platt, J.) (Opinion by Platt, J.), the Pennsylvania Superior Court found that a trial court properly denied a Motion to Amend a Complaint to add a new and distinct party on the morning of trial after the statute of limitations had run in a motor vehicle accident litigation.   The Plaintiff was attempting to join an alleged owner of a vehicle under an negligent entrustment theory. 
 
This decision is also notable for the Court’s Opinion that a police report containing statements made at the accident scene were not admissible under Pa. R.E. 803(8) or as an official record exception to the hearsay rule at 42 Pa. C.S. § 6104.
 
In addition to essentially finding that the Plaintiff had waived the evidentiary issue regarding the police report, the appellate court nevertheless noted that Section 3751 of the Vehicle Code specifically provides that a police report “shall not be admissible as evidence in any action for damages… arising out of a motor vehicle accident.”   75 Pa. C.S. §3751(b)(4).  
 
The Court additionally noted that “[a] police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence.  Nor should a party be able to get such a report into evidence in an indirect manner.”   Phillips at p. 23 citing Rox Coal Co. v. WCAB (Snizaski), 807 A.2d 906, 914 (Pa. 2002) (other citations omitted).  
 
Here, the Court found no abuse of discretion by the trial court in precluding the police report given that the police report did not witness the accident and the Motor Vehicle Code otherwise precludes the admission of such a report into evidence.  
 
The Court in Phillips additionally precluded evidence of a Social Security Disability award as such information was found not to be admissible under Pa. R.E. 803 (pertaining to a declarant’s then-existing state of mind exception; medical diagnosis of treatment exception).
 
The Plaintiffs in this matter were asserting that their medical expert should have been permitted to testify to records reviewed from the Social Security Administration Disability record and from a disability insurance carrier.  
 
In so ruling, the Court noted that the records at issue did not reference the subject motor vehicle accident.   Moreover, according to the disability records, the first date of disability was not until nine (9) months after the accident and it was indicated in those records that the Plaintiff’s symptoms had developed the night before that date of the onset of the disability.  
 
This decision is also notable for the court's reiteration of the rule that a  party must present a Motion for a Directed Verdict at the close of the case or a proposed binding jury instruction in order to support the presentation of a motion for judgment notwithstanding the verdict (JNOV) after the entry of an adverse verdict.

Anyone wishing to review this Opinion may click HERE.



Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (4/7/14).

Source of imagewww.orlandocriminaldefenseattorneyblog.com

Monday, April 14, 2014

REGISTRATION OPEN AND SPONSORSHIPS OPPORTUNITIES AVAILABLE FOR LACKAWANNA PRO BONO'S GOLF TOURNAMENT - JUNE 2, 2014


Federal Magistrate Judge Mehalchick to Join Judicial Panelist at TORT TALK EXPO CLE SEMINAR - SEPTEMBER 26, 2014

I am pleased to announce that Federal Middle District Judge Karoline Mehalchick has agreed to join the panel of Judges for the "View From the Bench" portion of the September 26, 2014 Tort Talk Expo at the Mohegan Sun Casino. 

The judicial panel hour will be an ethics hour with an emphasis on tips to improve chances for positive results at settlement conferences and/or during jury selection.

Federal Middle District
Magistrate Judge
Karoline Mehalchick

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
 
(Application to be submitted for 3 Substantive, 1 Ethics Credit)
 
 
 
 
 
TENTATIVE PROGRAM TO INCLUDE:
 
 
12:00 pm - 1:00 pm 
"Back to School"
A TORT TALK AUTO LAW/CIVIL LITIGATION UPDATE
by
Daniel E.  Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 
1:00 pm - 2:00 pm 
BAD FAITH UPDATE
by
 
Timothy G. Lenahan, Esq.
LENAHAN & DEMPSEY
 
Scott B. Cooper, Esq.
SCHMIDT KRAMER 
 
Neil T. O'Donnell, Esq.
O'DONNELL LAW OFFICES

Moderator: Daniel E. Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
 
 
 {BREAK: 2:00 pm - 2:15 pm}
 
 
  2:15 pm - 3:15 pm
MEDICAL HOUR
with
 
Dr. Lucian Bednarz  - Physiatrist - on RSD
and
Dr. Paul Horchos  - Physiatrist - on Post-concussion Syndrome
NORTHEASTERN REHABILITATION ASSOCIATES
 
 
 {BREAK:  3:15 pm - 3:30 pm}
 
 
 3:30 pm - 4:30 pm
VIEW FROM THE BENCH
Ethical Considerations
for
Settlement Conferences
and
Jury Selection
 
Moderator:  Paul Oven, Esq.
Dougherty, Leventhal & Price
 
 
JUDICIAL PANELISTS
 
Supreme Court Justice Correale F. Stevens 
Pennsylvania Superior Judge Court David N. Wecht
Luzerne County Judge Richard M. Hughes,
Lackawanna County Judge A. James Gibbons
U.S. Federal Middle District Magistrate Judge Karoline Mehalchick
 
[More Judges possibly to be added]
 
 
 
 4:30 pm - 6 pm
POST-SEMINAR COCKTAIL RECEPTION
 
 
THIS YEAR'S CLE SEMINAR WILL BE HELD IN A BALLROOM IN THE NEW HOTEL and SPA AREA AT THE MOHEGAN SUN


TABLE VENDOR SPONSORS TO DATE (Alphabetical):
 
At The Scene

 
Courtside Documents


 
Exhibit A
 
 
 
LexisNexis



Medical Legal Reproductions
 
 


Network Deposition Services




Northeastern Rehabilitation Associates




RecordTrak

 

The MCS Group


 
As in the past, there will again be door prizes and raffle prizes.
 
 
Vendor tables are still available on first-come, first-serve basis.  Other sponsorship/advertising opportunities available for service providers in the CLE written materials for service providers.  (contact Dan Cummins at dancummins@comcast.net for more details).
 
 
NEW this year will be the availability of a block of HOTEL ROOMS at the NEW Mohegan Sun Casino Hotel and Spa located on the property. 
 
 
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