Friday, October 31, 2014

HAPPY HALLOWEEN


 
Why did the game warden arrest the ghost?  The ghost didn't have a haunting license.
 
Why don't lawyers and mummies take vacation?  They're both afraid to relax and unwind.
 
What happened to the guy who couldn't keep up payments to his exorcist?  He got repossessed.
 
Why do lawyers get deeper burials in cemeteries?  Because deep down, they're good people.

What did the Mummy say to his lawyer?  Let's wrap this case up!
 
 
HAPPY HALLOWEEN
FROM
TORT TALK
 


Pennsylvania Supreme Court Declines Opportunity to Review Important Voir Dire Issues


According to an October 30, 2014 article by P.J. D'Annunzio in The Legal Intelligencer entitled "Pa. Justices Deny Appeal in Juror Bias Med Mal Case," the Pennsylvania Supreme Court has issued an Order declining to entertain the appeal from the 6-2 en banc Superior Court decision in the case of Cordes v. Associates of Internal Medicine overturning a defense verdict in a medical malpractice case after finding that the plaintiff's case had been prejudiced because three of the jurors allowed to serve on the panel at trial had ties to the defendants.

Justice Correale Stevens did not participate in the Court's per curiam Order denying allocatur on the questions presented pertaining to a party's right to a fair and impartial jury at trial.

Click HERE to go to the previous Tort Talk blog post summarizing the Superior Court's decision.  There are links to the Superior Court's Opinions in Cordes in that blog post if you are interested in reviewing the same.


Wednesday, October 29, 2014

The Latest on Ethical Issues With Use of Social Media by Attorneys and Their Clients


Here is a LINK to an October 28, 2014 article by Daniel J. Siegel that appeared in the Pennsylvania Law Weekly entitled "PBA Ethics Committee Issues Social Media Guidance" which outlines ethical opinions offered up by the Philadelphia Bar Association and, more recently, the Pennsylvania Bar Association on a myriad of social media ethical issues facing attorneys and their clients.  A good read.

If you cannot access the article through the Link, please email me at dancummins@comcast.net and I will shoot you a copy.

Here is a LINK to the actual PBA Formal Opinion entitled "Ethical Obligations For Attorneys Using Social Media."


Source of Social Media imagewww.plus.Google.com

Tuesday, October 28, 2014

Which Tort Option Applies?

In his recent decision in the case of Edgington v. Abersold, PICS Case No. 14-1630 (C.P. Lawrence Co. Sept. 24, 2014 Piccione, J.), Judge Thomas M. Piccione addressed the issue of determining a Plaintiff’s tort coverage where more than one private passenger motor vehicle accident policy was applicable and the policies had conflicting tort options.  

In his decision, Judge Piccione applied the provisions of the Motor Vehicle Financial Responsibility Law that provide "where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.”   See 75 Pa.C.S.A. Section 1705(b)(2).

According to the Opinion, the injured Plaintiff in this case did not have a driver’s license and did not own a vehicle.   The Plaintiff was an insured under a limited tort policy purchased by her husband. 

However, at the time of the accident, the injured party Plaintiff was riding in her mother’s vehicle as a passenger.  The Plaintiff's mother had a full tort policy on that vehicle.  

Judge Piccione applied the facts to the above stated provision of the Motor Vehicle Financial Responsibility Law and held that a passenger with no driver’s license and who did not own a vehicle is bound under the insurance coverage and tort option selected by a spouse unless, as here, the passenger was riding in a car of a different owner with different coverage.

Since the injured party Plaintiff was found to be an insured under her mother’s full tort insurance policy, the Plaintiff was deemed capable of seeking recovery for both economic and non-economic damages as a full tort Plaintiff.  

 
I do not have a copy of this decision.  However, a copy can be secured from the Instant Case Service of The Pennsylvania Law Weekly by calling 1-800-276-7487 to order a copy of the case for a small fee.  
 
Below is a Limited Tort Primer I created once when faced with the issue of which Tort Option would apply in different scenarios--rather than having to go look it up every time, I like to keep this list handy for easy reference.  Hope it helps to kickstart your research whenever you are faced with the same issue:



A.        WHO IS COVERED BY LIMITED TORT

The issue of who is covered by the limited tort election is governed by an application of 75 Pa.C.S. §1705(b)(2), which provides, as follows:

 

(2)  The tort option elected by the named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.  In the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.

 

The Pennsylvania Supreme Court has stated that “[t]he formula [for determining who is a limited tort plaintiff] is clear—where there is only one insurance policy, sentence one [of §1705(b)(2) above] applies;  where there is more than one policy with conflicting tort options, sentence two determines the applicable coverage.”  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).
 

POTENTIAL LIMITED TORT SCENARIOS

 

-Named insured is bound by limited tort selection in own insured vehicle at time of accident

 

-Named insured’s selection of limited tort under policy shall also apply to all other insureds under that policy who are not named insureds under their own separate insurance policy.  75 Pa.C.S. §1705(b)(2).

 

-If there is more than one policy covering an insured, and the policies have conflicting tort option, the insured will be bound by the tort option selected in the policy covering the vehicle the insured was an occupant of when involved in the accident if the insured is covered under that policy.  Carns v. Smith, 118 Dauph. Co. Rpts. 417 (1998).
 

-Where injured party is an “insured” under a full tort policy covering the vehicle she is occupying at the time of the accident, but is a “named insured” under a limited tort policy, the Pennsylvania Supreme Court has held that the second sentence of 75 Pa.C.S. §1705(a)(2) applies, which entitles the injured party to full tort coverage because at the time of the accident she was the occupant of a vehicle that had full tort coverage and she was also an insured under that policy (she was a resident relative).  Hoffman v. Troncelliti, 839 A.2d 1013 (Pa. 2003).

 

-Where the injured party selected limited tort coverage as a named insured under her own policy but is injured while riding as a passenger in a vehicle covered by a full tort policy, but the injured party does not qualify as an “insured” under that full tort policy, then there are no conflicting tort options and the passenger is bound by her limited tort election.  Perry v. Leader Ins. Co., 54 Northampton Co. Rpt. 465 (2005).

 

-Where the injured party has selected the full tort option on his own policy but is a passenger/insured in a vehicle covered by a limited tort policy, one court has found the injured party in this scenario to be covered by the limited tort option.  Clikeman v. Bahrenburg, No. 1124 EDA 2005 (Pa.Super. 11/22/05)(mem. op.)

 

-A person who is not the owner of a registered motor vehicle and who is not a named insured or insured under any automobile insurance policy is considered a full tort plaintiff.  75 Pa.C.S. §1705(b)(3)

 

-A person who owns a registered but uninsured motor vehicle shall be deemed to have selected the limited tort option .  75 Pa.C.S. §1705(a)(5);  However, the children of a person who has a registered but uninsured motor vehicle will not be punished with a deemed limited tort status—they are considered to be full tort.  Holland v. Marcy, 883 A.2d 449 (Pa. 2005).

 

-A pedestrian who is covered by the limited tort option will not be bound by that election when hit by a car.  L.S. v. David Eschbach, Jr., Inc., 874 A.2d 1150 (Pa. 2005). 
 
 
 
 
 
 

 

 

Friday, October 24, 2014

PBI's 21st Annual Auto Law Update CLE Seminar a Week Away


I will be presenting on the topic of "The Latest in Bad Faith" at the PBI's 21st Annual Auto Law Update CLE Seminar set to take place on October 31, 2014.  The program begins at noon.

If interested in registering to attend the live seminar in Mechanicsburg, PA or any of the webcast of the CLE on the same date and time to locations all around the Commonwealth of Pennsylvania, click this LINK.

This CLE program offers a total of 4 credits, one of which is an Ethics credit.

Here is a LINK to the Course Agenda for the October 31 Mechanicsburg/Simulcast Program.

Subsequent Remedial Measures And Medical Expert's Opinion Precluded in Slip and Fall Case

In its recent decision in the case of Hunter-McLeod v. Dollar General, No. 13-3113 (E.D. Pa. Sept. 16, 2014 DuBois, J.) (Memorandum and Opinion), the Eastern District Federal Court addressed the issues of subsequent remedial measures in a slip and fall case as well as the admissibility of an expert medical opinion.  

This matter arose out of a slip and fall accident that occurred at a Dollar General Store in Philadelphia, Pennsylvania.   Surveillance cameras captured the Plaintiff’s entrance into the store and her accident.   The surveillance video also captured the four (4) employees placing a piece of cardboard over the area of the fall following the incident.  

Prior to trial, the Defendant filed a Motion In Limine to exclude all evidence of subsequent remedial measures contained in the surveillance video as well a Motion to Preclude the Plaintiff’s medical expert from offering certain evidence at trial. 

Applying F. R.E. 407, pertaining to the admissibility of subsequent remedial measures, the court granted the Defendant’s Motion and excluded the evidence of the store’s post-accident actions as inadmissible.   In so ruling, the court found that there was no evidence that the subsequent remedial measures contradicted any witnesses’ testimony directly in order to be admissible for impeachment purposes.  

With respect to admissibility of the Plaintiff’s expert medical opinion that the subject accident “may have” aggravated Plaintiff’s degenerative arthritis of the left hip, the court found that this testimony was not admissible even though the witness stated that the opinion was offered to a reasonable degree of medical certainty. 

Applying Pennsylvania law, the federal court noted that the Pennsylvania Superior Court has stated that “[e]xpert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing out the injury.”   Citing Kravinsky v. Glover, 396 A.2d 1349, 1356 (Pa. Super. 1979).   The federal court noted that the Kravinsky Superior Court also explained that “an expert fails this standard of certainty if he testifies that the alleged cause possibly, or could have[,] led to the result, that it could have very properly accounted for the result, or even that it was very highly probable that it caused the result.”   396 A.2d at 1356 [other citations omitted]. 

In this case, the Plaintiff’s medical expert report provided as follows:  “I believe her slip and fall caused an aggravation of pre-existing degenerative disc [sic] made of x-ray findings which revealed degenerative arthritis of the left hip.   This was not caused by the fall, but may have been aggravated.”  

The defense took issue with the Plaintiff’s expert’s opinion that the accident “may have” caused an aggravation of the Plaintiff’s arthritis.   The federal court concluded that the Plaintiff’s expert medical opinion was insufficient and therefore inadmissible even though the doctor concluded his report with a statement that his opinion “have been rendered with a reasonable degree of medical certainty.”  

 
Anyone wishing to review this Eastern Pennsylvania Federal Court memorandum decision may click this LINK

Tuesday, October 21, 2014

Trivial Defect Doctrine Applied in Lycoming County Trip and Fall Case to Deny MSJ

In the case of Walker v. Community Action Realty, Inc., No. 13-00,418 (C.P. Lycoming Co. Oct. 13, 2014 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas recently denied a Defendant’s Motion for Summary Judgment in a slip and fall case based upon a defense allegation that the Plaintiff failed to identify the specific defect that caused her to fall and because the alleged defect was so trivial that allowing it to exist was not negligent as a matter of law.  

According to the Opinion, the Plaintiff stumbled, trip, and fell down stairs onto a sidewalk outside a building, allegedly sustaining injuries.   At her deposition, the Plaintiff testified that her foot came into contact with a raised portion of the pavement on the porch at the top of the stairs, causing her to trip and fall down the stairs.  

It was undisputed that there was a raised area of the porch surface located a few inches from the front edge of the top step between the doormat and the front step.   An investigative report noted that the irregularity was only about 1/8th of an inch high.  However, the raised area of the porch surface was located directly in the middle of the steps, which was noted to be a busy, heavily traversed point of primary access into and out of the public building.  

After reviewing the law pertaining to trivial defects in premises liability cases, the court denied the Defendant’s Motion for Summary Judgment after noting that no definite or mathematical rule can be laid down as to the depth or size of a sidewalk defect to determine whether the defect was trivial as a matter of law.  

Judge Richard Gray
Lycoming County
Applying the trivial defect doctrine to the facts before him, Judge Gray reiterated that the defect in question, the existence of which was admitted by the defense, was in the direct line of travel for persons entering and exiting the building.  The court also emphasized that the irregularity in the area where the Plaintiff fell was located right in the middle of where the public would be expected to step before descending the steps out of a busy, heavily traversed public building.  

Judge Gray held that the question of whether or not allowing the defect in question to exist at that location constituted negligence, was a question that should be decided by a jury. 

Judge Gray further found that the Plaintiff’s testimony was sufficient to also raise a question of fact for the jury to determine whether or not the cause of her fall was indeed the defect in question.  

For these reasons, the Defendant’s Motion for Summary Judgment was denied.  

 
Anyone desiring a copy of this Lycoming County decision in the case of Walker v. Community Action Realty, Inc. may contact me at dancummins@comcast.net.
 

Monday, October 20, 2014

CLE: Personal Injury Practicum in Philadelphia (November 6, 2014)

As requested, I am posting the below ad for the Personal Injury Practicum set to take place on Thursday, November 6, 2014 in Philadelphia, PA. (I am not participating, just posting as a favor as requested). 

If you have difficulty reading the below, registration information can also be accessed HERE.



Speaking at PBI Auto Law Update CLE Seminar on 10/31/14 in Mechanicsburg, PA


I will be presenting on the topic of "The Latest in Bad Faith" at the PBI's 21st Annual Auto Law Update CLE Seminar set to take place on October 21, 2014.  The program begins at noon.

If interested in registering to attend the live seminar in Mechanicsburg, PA or any of the webcast of the CLE on the same date and time to locations all around the Commonwealth of Pennsylvania, click this LINK.

This CLE program offers a total of 4 credits, one of which is an Ethics credit.

Friday, October 17, 2014

Lackawanna Pro Bono's Fundraising Gala Set for October 23, 2014 at Scranton Cultural Center


ARTICLE: Parameters of Showing Bias of Expert Witnesses

The below article of mine was recently published in the September 30, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media, the publisher.
 
 
 
Civil Litigation

Parameters of Showing Bias of Expert Witnesses


, The Legal Intelligencer                          
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A recent trend in personal injury matters has involved each litigant turning up the heat in their attempt to gather information to discredit the opposing party's medical expert and expose that witness as biased in favor of the offering party.

Although the lofty recognized purpose of a civil trial is to determine the truth of the claims and defenses presented, in reality, the focus and driving force of civil trials has always been money—depending upon which side you are on, maximizing or minimizing the opposing party's monetary recovery.

With many personal injury trials turning on the battle of the experts, such battles are increasingly commencing in the pretrial discovery stages as parties fight over the extent to which they may discover information on the finances and prior litigation activity of experts.

Standard Expert Discovery

To further the truth-seeking goals of civil litigation trials, the Pennsylvania Rules of Civil Procedure pertaining to pretrial discovery have been developed with the overarching purposes of avoiding any surprises at trial and allowing for a fair trial on the merits. One significant portion of the rules on discovery focuses upon the extent to which a party may discover information pertaining to the opinion and background of an opposing party's expert.

Under Pa.R.C.P. 4003.5, in order to properly prepare for trial, parties are freely permitted to discover the identity of an opposing party's expert, the curriculum vitae or resume of that expert, and the facts and opinions upon which the expert is expected to testify at trial.

In limited circumstances, Rule 4003.5(a)(2) also gives the court the power to order additional discovery pertaining to expert witnesses upon cause shown for the need for such additional information. Such information can include information tending to show that the expert may be biased in favor of the party offering the expert as a witness at trial. With such discovery, an opposing party may attempt to attack the credibility of an opponent's witness as part of the truth-seeking purpose of litigating a trial before a jury.

Supplemental Expert Discovery

In the case of Cooper v. Schoffstall, 905 A.2d 482, 495 (Pa. 2006), the Pennsylvania Supreme Court ruled that, when permitted, the scope of permissible supplemental expert discovery could include written interrogatories directed to the nonparty expert (as opposed to interrogatories addressed to the opposing party) requesting information on such topics as: compensation paid to the expert to participate in the case at hand; the character of the expert's prior litigation-related activities; the percentage of time the expert testifies for one side versus the other; the percentage of the expert's overall work devoted to litigation services; the approximate amount of expert income earned per year; and the number of examinations and depositions completed by the expert annually.

The court in Cooper placed a time limit of three years' worth of information required to be produced. The court also noted that if evasive responses to the interrogatories were produced, the trial court had the discretion to order even more supplemental discovery from the expert, such as tax returns or other financial documents to confirm the expert's litigation-related compensation.

The Cooper decision was more recently applied and followed by the Pennsylvania Superior Court in the case of Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007).

Notably, these appellate decisions require that the party seeking supplemental expert discovery must first make a threshold showing to the court that the expert at issue falls within the professional witness category before supplemental expert discovery will be allowed.

A troubling aspect of the Cooper and Feldman decisions is that while they delineate the type of supplemental discovery allowed with respect to the potential bias of an expert witness once there is a threshold showing that the expert witness is a professional witness, neither decision provides concrete guidance on what must be shown to meet that threshold test.

The Cooper decision only vaguely states that the "proponent of discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade or slant his testimony in light of the substantial financial incentives" offered.

Accordingly, under the Cooper circumlocution, in order to secure a court order allowing the party requesting supplemental expert discovery of detailed information to show at trial that an opponent's expert witness is a biased professional witness, the party seeking such discovery must somehow first figure out a way to establish to the court that the expert is indeed a professional witness. What?

An open issue therefore remains as to what types of evidence are sufficient to meet the required threshold showing that an expert witness is an alleged professional witness such that supplemental discovery into the potential bias of that expert should be allowed.

Professional Witness: 
An Open Issue

In the absence of any appellate decision providing any more concrete guidance on the threshold showing required, the trial court judges have had to utilize the broad discretion afforded to them in deciding the professional witness question.

Unfortunately, there are not many widely reported trial court opinions on this issue. Luzerne County Court of Common Pleas Judge Lesa Gelb spoke of the issue in the case of Mangan v. Erie Insurance Exchange, 2011–CV–06261 (C.P. Luz. Co. 2012), in the slightly different context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness at issue as authorized in the Cooper case.

Relying on a prior decision in the case of Glushefski v. Sadowski, No. 2009–CV–1189 (C.P. Luz. Co. 2010), by Luzerne County Court of Common Pleas Judge Joseph Van Jura in the context of the supplemental expert interrogatories being served upon the opposing party as opposed to the nonparty expert witness, Gelb, as did Van Jura, ruled that the Cooper analysis should still be followed even though the discovery was not served on the expert.

While the Mangan and Glushefski decisions served to extend the Cooper analysis to apply to supplemental expert interrogatories served upon opposing parties, there still remained an open question as to what the party requesting discovery must first show in terms of the expert being reasonably identified as a professional witness to allow the supplemental expert discovery to be propounded.

Factors to Establish a Professional Witness

In a more recent decision applying the Cooper professional witness standard, Guffey v. Kyriazis, No. 2308-CV-2009 (C.P. Lacka. Co. 2014 Minora, J.), Judge Carmen D. Minora affirmed the decision of the Lackawanna County special trial master for discovery in a motor vehicle accident litigation that allowed a plaintiff to gather discovery on the finances earned and prior litigation involvement of a defense independent medical examiner dating back three years.

In so ruling, Minora followed the standard set forth in Cooper and Feldman and set forth the painstakingly detailed evidence that plaintiffs counsel provided to the court to establish that the defense IME doctor was a professional witness such that supplemental discovery should be allowed.
Accordingly, the Guffey decision can serve as a guide to the type of evidence that can be utilized to show that a defense (or plaintiffs) medical expert is a professional witness such that supplemental discovery on the expert's finances and litigation involvement dating back three years should be permitted.

More specifically, the plaintiff's counsel provided information on the expert's fees per IME or deposition, that the expert derived substantial fees from litigation work, and that the expert had been retained by defense counsel in prior matters. Also produced for the court's review were advertisements by the expert's medical group seeking IME work. Last, but not least, the plaintiff provided to the court copies of answers to Cooper interrogatories from another unrelated matter providing financial information and litigation activity on the same IME doctor as at issue in the Guffey case.

In light of the provision of all of this evidence by the plaintiff in support of its claim that the defense doctor was a professional witness, Minora found that the plaintiff had established reasonable grounds to assert a concern that the IME doctor may have been an expert witness secured by the defendant to provide legal medical material favorable to the defendant. Consequently, the court ruled that the plaintiff's narrowly tailored Cooper interrogatories were warranted and should be answered.

Waiting for Guidance

Until further appellate guidance is produced, each trial court decision handed down in this regard will serve to shed more light on the proper identification of professional expert witnesses so as to allow the discovery of the financial background and litigation practices of such witnesses and support cross-examination on the all-important issue of bias and, therefore, credibility of the witnesses.


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




Tuesday, October 14, 2014

DING DONG THE WITCH IS DEAD!


According to a press release from The American Association for Justice, the Centers for Medicare & Medicaid Services (CMS) has withdrawn its proposed rule in tort actions on future medicals called “Medicare Secondary Payer and Future Medicals.” 

According to the AAJ, this means that, currently, there is no future medicals rule pending from Medicare and the prospect of having to do Medicare Set-Asides in third party liability matters is now dead.

I send thanks to Attorney Bruce Zero of the Scranton, PA -based Powell Law for bringing this news to my attention.

Monday, October 13, 2014

Registration Form for October 17, 2014 Lackawanna County Bench Bar Conference

THOMAS M. HOLMES, ESQ. BENCH BAR CONFERENCE

Hilton Scranton and Conference Center

Friday, October 17, 2014




Please R.S.V.P. by faxing this completed

form to 570-969-9170 or mailing it to:

Lackawanna Bar Association, 338 N. Washington Ave., Scranton, PA 18503




Check Here:

_______ I will be attending the Thomas M. Holmes, Esq. Bench Bar Conference and luncheon

_______I will be attending the Thomas M. Holmes, Esq. Annual Bench Bar Conference ONLY

_______I will be joining the LBA for cocktails


Registration and Lunch 12:00 p.m. to 12:45 p.m.


SELECT THE SEMINAR YOU WISH TO ATTEND

FROM THE FOLLOWING CATEGORIES:

Session I - 1:00 p.m. to 2:00 p.m.
( ) Workers’ Compensation Mediation - 1 SUB credit


Judge Joseph A. Stokes, Department of Labor, Office of Adjudication

-or-

( )Civil Litigation Update (With Lessons from the Godfather) - 1 SUB credit

Daniel E. Cummins, Esq., Foley, Comerford, Cummins & TortTalk.com

-or-

( )Casemaker-The PBA’s Online Legal Research "Professional Partner"– 1 SUB credit

Elizabeth A. Kramer, Member Services Director, Pennsylvania Bar Association

Session II - 2:15 p.m. to 3:15 p.m.

( )Social Security Update - 1 SUB credit

Judge Therese A. Hardiman, Administrative Law Judge

Social Security Administration Office of Disability Adjudication and Review

-or-

( ) Auto Law Update with Emphasis on Insurance Issues—1 SUB credit

Scott B. Cooper, Esq., Schmidt Kramer, P.C., Harrisburg, PA

-or-

( ) Family Law Update—The New Custody Rules of Lackawanna County– 1 SUB credit

Hon. Margaret Bisignani Moyle, Lackawanna County Court of Common Pleas

George E. Seig, Esq., Judicial Hearing Officer Master, Lackawanna County Family Court


Session III - 3:30 p.m. to 4:30 p.m.

( )Judicial Forum/Update– 1 ETH credit

Hon. Christine L. Donohue, Superior Court, Commonwealth of Pennsylvania

& the Lackawanna County Court of Common Pleas




Reception -4:30 p.m. to 5:30 p.m.

Sponsored by FindLaw



Member Name: ________________________________________________

ID # _______________




NOTE: Hardcopy materials can be accessed from the home page on the

LBA website at www.lackawannabar.org on or after 10/6/2014.

HARDCOPY MATERIALS WILL NOT BE AVAILABLE THE DAY OF EVENT

ARTICLE: Collateral Estoppel Doctrine Precludes Additional UIM Recovery

The below article of mine was recently published in the October 7, 2014 edition of the Pennsylvania Law Weekly and is republished here with permission from the publisher American Law Media.
 
 
 
Civil Litigation

Collateral Estoppel Doctrine Precludes Additional UIM Recovery


, The Legal Intelligencer                        
/image/pa/300_pics/cummins-daniel-article.jpg
Spurred by a number of state and federal court decisions over the past year, the issue of whether a previous award secured by an injured plaintiff can serve to preclude the plaintiff from seeking additional coverage from an underinsured motorist carrier on the same claims has become a hot topic in post-Koken auto accident litigation.

The cases show that a previous recovery by a plaintiff can serve as a roadblock on the road to additional recoveries following a motor vehicle accident.

Binding Arbitration Implicates Collateral Estoppel

In auto accident matters, a plaintiff will often proceed to a binding arbitration by agreement to resolve the claims against the defendant driver before proceeding to the related UIM claim. Such a plan of attack could prove troublesome.

In his Jan. 15 opinion in Borrelli v. AIU North America, No. 0430, Control No. 13110820 (C.P. Phila. 2014), Philadelphia Court of Common Pleas Judge Mark I. Bernstein granted a UIM carrier's motion for summary judgment based upon the collateral estoppel doctrine in a case where the plaintiff proceeded through an agreed-upon high/low arbitration with the tortfeasor defendant first.

In Borrelli, the plaintiff, with consent of his own UIM carrier, resolved the third-party claim by way of a binding arbitration. At the arbitration, the arbitrator entered an award that was less than the defendant driver's policy limits. This award below the liability limits, by definition, raised the question of whether the plaintiff had indeed been injured by a tortfeasor who was underinsured so as to enable the plaintiff to pursue UIM benefits from the plaintiff's own automobile insurance carrier.

After the arbitration, the plaintiff then filed a UIM lawsuit in Philadelphia against the UIM carrier. The UIM carrier eventually filed a motion for summary judgment based upon the application of the collateral estoppel doctrine in light of the prior arbitration award. The argument was that the doctrine precluded the plaintiff from relitigating the amount of her damages.

Bernstein granted the carrier's motion after finding that all of the elements of the collateral estoppel doctrine were met. The court more specifically ruled that the issue of the full amount of damages to which the plaintiff was entitled had been previously litigated and determined to be less than the tortfeasor's liability limits.

The court noted that it therefore followed that the arbitration award precluded any UIM recovery as the defendant driver was not underinsured. Stated otherwise, the plaintiff was found to have been fully compensated for the alleged injuries by the award entered on the third-party side of the case.

A similar result was also handed down by the U.S. District Court for the Eastern District of Pennsylvania. In his decision in Harvey v. Liberty Mutual Group, No. 130-CV-04693 (E.D. Pa. 2014), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third-party side with a high parameter being a number below the third-party liability limits and where the arbitration award was entered at a number even below that high parameter.

The court ruled in this fashion even though there was an express agreement between the parties in the third-party liability case that the binding arbitration was not intended to preclude any subsequent proceedings.

In Harvey, the liability limits on the third-party side were $2.25 million. The high parameter agreed to between the parties for the binding arbitration of the third-party case was $1.35 million. The arbitrator entered an award in the amount of $680,000.

The third-party proceedings and the award entered implicated the collateral estoppel doctrine, as the damages claims were fully litigated and the award entered was below the agreed-upon high parameter (which was also well below the available liability limits).

Joyner noted that to avoid the effects of the collateral estoppel doctrine, the parties easily could have written into the binding high/low agreement an express provision to the effect that "the binding high figure is not intended to have any preclusive effect."

Multiple Levels of UIM Coverage

The application of the collateral estoppel doctrine to UIM claims has also been held to apply where a plaintiff first recovers a primary level of UIM coverage and then proceeds to attempt to obtain an additional recovery from a second-level UIM carrier.

This scenario arises when a plaintiff is injured in a car accident while a passenger in someone else's vehicle. The UIM coverage on the vehicle represents the primary, or first-level, UIM coverage available to the plaintiff. If that plaintiff also has their own UIM coverage on their own vehicle, that other UIM coverage would apply as a second level of possible benefits for the plaintiff, assuming no exclusions to coverage apply.

In a recent nonprecedential memorandum opinion in the case of United Services Automobile Association v. Hudson, No. 224 EDA 2014 (Pa. Super. 2014), the Pennsylvania Superior Court addressed a matter involving a claim for second-level UIM benefits after an arbitration award was previously entered for UIM benefits under a primary UIM policy.

In this auto accident matter, the plaintiff initially secured the tortfeasor's $15,000 in liability limits by settlement and then proceeded to her UIM claims.

The primary UIM coverage on the vehicle in which the plaintiff was located as a passenger at the time of the accident provided for $100,000 in UIM limits. An arbitration award of $75,000 was eventually entered on that claim.

After a credit for the third-party coverage of $15,000 was applied to that initial UIM arbitration award, the plaintiff received $60,000 of the primary UIM carrier's $100,000 UIM policy limit.
The plaintiff then sought to recover a second level of UIM benefits under her own personal UIM policy. That second-level UIM carrier denied the claim by arguing that the issue of damages had already been fully litigated, with the result being a number that was below the first-level UIM carrier's policy limits, thereby precluding the claim for second-level benefits.

The trial court upheld the insurance company's collateral estoppel argument and the plaintiff appealed. The Superior Court affirmed by ruling that the insured was estopped from relitigating the claim as the issue of damages had already been litigated. Since the UIM award was less than the amount of the UIM limit on the first policy, the court ruled that the plaintiff could not recover under the second-level UIM policy.

Nonbinding ADR

In addition to being found to apply to binding arbitration, Pennsylvania courts have also found that the doctrine of collateral estoppel may apply to looser forms of alternative dispute resolution proceedings.

In her decision earlier this year in the post-Koken case of Gallagher v. Ohio Casualty Insurance, No. 13-0168 (E.D. Pa. 2014), U.S. District Judge Nitza I. Quinones Alejandro of the Eastern District of Pennsylvania found that while a nonbinding ADR award did not technically implicate the collateral estoppel doctrine, the award nevertheless served to preclude a UIM claim.

According to the opinion, the third-party portion of this case settled after a nonbinding ADR proceeding was held and the arbitrator entered a settlement value that was approximately $59,000 less than the third-party liability limit.

The insured plaintiff initially declined to accept the evaluation issued by the arbitrator and proceeded with the litigation of the third-party case. However, after the completion of some further discovery, the third-party case settled for the same amount as the nonbinding arbitrator's evaluation.

Despite settling the third-party claim for substantially less than the tortfeasor's liability limits, the plaintiff nevertheless commenced a UIM claim against the plaintiff's own automobile insurance carrier.

The UIM carrier denied a UIM claim even existed given the nonbinding arbitration value placed upon the case was below the tortfeasor's liability limits.

The carrier argued that the UIM case could not proceed because the third party could not be considered to be underinsured, because the third-party coverage was not exhausted and because the claim was allegedly barred by the collateral estoppel doctrine.

The court in Gallagher noted that the UIM claim would not be barred by the collateral estoppel doctrine because the nonbinding arbitration did not result in a final judgment as required for that doctrine to apply.

However, the court found that the defendant driver was not a UIM motorist as defined by the policy or Pennsylvania law. The only evidence to consider of the other driver being underinsured were the policy limits, the arbitrator's evaluation and the eventual settlement amount. Under that evidence, the court found that the third-party defendant could not be considered to be underinsured and that, therefore, the injured plaintiff could not present a UIM claim.

In light of the above string of cases, both sides of the bar should activate their high beams to keep a cautious eye out for roadblocks in the road to a UIM recovery. 

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


Thursday, October 9, 2014

Duties Owed in Construction Accident Case Reaffirmed


 
In its recent decision in the case of Nertavich v. PPL Electric Utilities, 2014 Pa. Super. 184 (Pa. Super. Aug. 27, 2014 Ford Elliott, P.J.E., Ott, J., Strassburger, J.)(Op. by Ott, J.) (Strassburger, J., dissenting), the Pennsylvania Superior Court addressed the duties owed in a case involving an injury to an employee of an independent contractor.    


The court more specifically ruled that the electric company Defendant was entitled to a judgment notwithstanding the verdict in a case arising out of injuries to an employee of an independent contractor hired to paint electric transition pole. 
 
The court found that there was an insufficient degree of control for liability purposes even though there was a designation of a contract field representative by the defendant to be responsible for monitoring safety practices, and even though internal company documents setting forth safety guidelines for employees were produced.
 
Such evidence was found to be insufficient to establish that the Defendant electric company retained control of job sites as an owner such that liability could be imposed for injuries to employees of the independent contractor.  
 
In so ruling, the Nertavich court relied heavily upon the Pennsylvania Supreme Court's decision in the case of Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. 2011) which was summarized in this TORT TALK POST
 
The Majority Opinion by Judge Ott can be viewed HERE.
 
Judge Strassburger's dissenting Opinion (a simple two-line affirmation of the trial court opinion) can be viewed HERE.
 
 

 

Wednesday, October 8, 2014

Another Philadelphia County Decision in Favor of Consolidation

There remains a split of authority on the issue of consolidation versus severance of Post-Koken third party claims and UIM claims across the Commonwealth.  There also remains a split of authority on this issue within several counties, including Lackawanna, Allegheny, and Philadelphia Counties.

Another decision in favor of consolidation of Post-Koken claims was recently handed down by Judge Nina Wright Padilla in her one line Order denying a Motion for Sever in the case of Schlesinger v. GEICO, June Term 2014, No. 0549, Control No. 14083387 (C.P. Phila. Co. Sept. 26, 2014).

Anyone desiring a copy of this one line Order may contact me at dancummins@comcast.net.

I send thanks to Attorney Steward A. Bernstein of the Philadelphia law firm of Kanter, Bernstein & Kardon for bringing this case to my attention.

For a comprehensive listing of Post-Koken decisions from across the Commonwealth on this issue and other Post-Koken issues, check out the Post-Koken Scorecard that is always freely accessible by clicking the link to the same down on the right hand column on the Tort Talk Blog at www.TortTalk.com.  Here is a quick LINK  to the Post-Koken Scorecard for your easy reference.

Please do not hesitate to let me know of any Post-Koken decisions you may be aware of from any county in order that the Scorecard may be continually updated for the benefit of all.




Tuesday, October 7, 2014

Right to Videotape Deposition of a Party Upheld




In its recent decision in the case of Dougherty v. Heller, 2014 Pa. Super. 170 (Pa. Super. Aug. 14, 2014)(Maj. Op. by Bender, P.J.E.)(Concurring and Dissenting Op. by Mundy, J.), the Pennsylvania Superior Court ruled that, since a party lacks a privacy interest with respect to information disclosed during pre-trial discovery, the Motion to Compel a videotape deposition of a party was properly granted by the trial court and the Motion for Protective Order regarding the videotaped deposition of the party was properly denied by the trial court.  

To view the court's Opinion, please click HERE.

To view Judge Mundy's Concurring and Dissenting Opinion, click HERE.  

Thursday, October 2, 2014

CJA CLE Seminar Set for October 22, 2014 at Mohegan Sun Casino in Wilkes-Barre, PA

The Committee for Justice For All (CJA) recently extended the professional courtesy of advertising my recent Tort Talk Expo 2014 CLE Seminar among its members.  I am returning the favor.

On October 22, 2014, the CJA will hold a CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA from 8:00 am - 4:45 pm, followed by a Cocktail Reception.  Breakfast and Lunch are included.  The seminar will revolve around panel discussions by members of the plaintiff's bar, defense bar, and the local bench pertaining to the use of Focus Groups and Mock Juries in personal injury cases.  The program offers 6 Credits plus 1 Ethics Credit.

For more information or to register, please contact Paul Lyon at (570) 338-0158.

Wednesday, October 1, 2014

Collateral Estoppel of a UIM Claim Upheld in a Slightly Different Context


In the recent past, several cases have been summarized here in which a variety of courts have held that where a third party arbitration in an auto accident case results in an award that is less than the tortfeasor's liability limits, the plaintiff is collaterally estopped from proceeding onto a UIM claim.  

The rationale is that, as there had already been a determination as to the value of the claim and that value did not exceed the liability limits, then the tortfeasor was not "undersinsured" and no UIM recovery could be had by the Plaintiff.

To view those prior Tort Talk Posts, click HERE.

This collateral estoppel issue has reared its head again, but in the slightly different context of a case involving multiple levels of UIM coverage. In its recent "non-precedential" Memorandum Opinion in the case of USAA v. Hudson, No. 224 EDA 2014 (Pa. Super. Sept. 24, 2014 Lazarus, J., Ott, J., Strassburger, J.) (Memorandum by Ott, J.), the Pennsylvania Superior Court addressed a matter involving a claim for second level Underinsured Motorist (UIM) benefits after an arbitration award was entered for UIM benefits under a primary policy. 

In this matter, the Plaintiff secured the tortfeasor's $15,000 in liability limits by settlement and then proceeded onto her UIM claims.

The primary UIM coverage on the vehicle in which the Plaintiff was located as a passenger at the time of the accident was with Allstate.  An arbitration award of $75,000 was eventually entered on that claim. 

After a credit for the third party coverage of $15,000, the insured received $60,000 of the Allstate $100,000 UIM policy limits.

The Plaintiff then sought second level UIM coverage under her personal UIM policy with USAA.  That second level UIM carrier denied the claim by arguing that the issue of damages had already been fully litigated with the result being a number that was below the first level UIM carrier's policy limits. 

The trial court found in favor of the insurance company and Hudson appealed. The Superior Court affirmed and held that the insured is estopped from re-litigating the claim and that the “issue” of damages had already been litigated. 

Since the award of the UIM was less than the amount of the UIM coverage on the primary policy, the Plaintiff could not recover under the second level USAA UIM policy.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this decision to my attention. A

nyone wishing to review this Memorandum Opinion by the Superior Court in the USAA v. Hudson matter may click this LINK.