Wednesday, December 30, 2015

ARTICLE: A Year of Changes in Civil Litigation

This article of mine appeared in the December 15, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission:

A Year of Changes in Civil Litigation


, The Legal Intelligencer/Pennsylvania Law Weekly         
            
There were a number of notable developments in Pennsylvania civil litigation law over the past year in terms of decisions and at least one rule change. Here's a look back at some of those changes in 2015.

Jurors and Social Media

Earlier this year, the Pennsylvania Supreme Court, in keeping up with the changing times, amended Rule 220.1, pertaining to "Preliminary Instructions to Prospective and Selected Jurors," by expanding the need to instruct jurors to refrain from researching the case at hand through social media.

Previously, these types of instructions were generally reserved for those jurors actually selected and sitting in the jury box at trial. The new amendments require the trial court judge to also provide such instructions to persons in the general jury pool even before they reach a particular courtroom for jury selection.

The amendments place emphasis on advising such jurors of the prohibitions against using computer or mobile devices in a manner that may violate the instructions of the court during trial, including instructions on not discussing or researching the case presented.

Statute of Limitations in Limited Tort Cases

In an interesting opinion in the case of Varner-Mort v. Kapfhammer, 109 A.3d 244 (Pa. Super. 2015), the Superior Court addressed the proper application of the statute of limitations and the discovery rule in the context of limited tort cases.

In Varner-Mort, the limited tort plaintiff filed suit after the expiration of the statute of limitation but argued, under the discovery rule, that she did not "discover" that she had a serious injury until some point in time after the accident such that the lawsuit was timely filed under an application of the discovery rule.

Despite noting that precedent in this regard was just "plain wrong," this panel of the Superior Court nevertheless reluctantly agreed to apply the discovery rule and reversed the entry of summary judgment in favor of the defendant on the statute of limitations issue.

Independent Medical Examinations

A number of trial court decisions were handed down over the past year pertaining to the permissible parameters of independent medical examinations (IMEs).

In the Lebanon County Court of Common Pleas case of Shearer v. Hafer, No. 2012-01286 (C.P. Leb. Co. March 17, 2015 Charles, J.), Judge Bradford Charles ruled in favor of a defense discovery motion to compel a neuropsychological IME, with the parameters being that the plaintiff's attorney would be allowed to be present during the preliminary interview phase by the doctor of the plaintiff but not thereafter.

In the case of Trojanowicz v. Ford Motor, No. 2013 - CV - 223 (C.P. Lacka. Co. Feb. 10, 2015 Minora, J.), Judge Carmen D. Minora, citing Pa.R.C.P. 4010, noted that whether or not to allow multiple examinations by an IME expert was a decision left to the broad discretion of the trial court. Given that the psychiatric IME doctor wrote in his initial report that he was able to come to accurate conclusions and opinions based upon the review he had completed to date, Minora found that additional testing would not be allowed.

In the case of Feld v. Primus Technologies, 2015 U.S. Dist. Lexis 55270 (M.D. Pa. April 28, 2015 Brann, J.), U. S. District Judge Matthew W. Brann of the Middle District Court of Pennsylvania relied upon Fed.R.E. 703 in ruling that defendants in tort litigation may rely upon, and refer to, independent medical examinations of the plaintiff prepared in separate worker's compensation proceedings. The court denied a plaintiff's motion in limine in this regard reasoning that, even though the previous IME reports may be arguably biased, those reports were the kind of records that a medical expert would typically and legitimately rely upon, i.e, the records of other doctors, in formulating their own opinions on the case presented.

Cross-Examination of Witnesses

In 2015, decisions were handed down clarifying the extent to which expert and lay witnesses could be impeached on cross-examination at trial.

In Flenke v. Huntington, 111 A.3d 1197 (Pa. Super. 2015), the Superior Court ruled that, while expert witnesses may be impeached for bias, including frequent work for the same side in litigation or for insurance carriers, there are limits to such cross-examination.

More specifically, the court limited the cross-examination of the expert to those issues germane to the case at hand and evidence of bias related thereto. As such, the court place certain limits on the extent to which an expert could be cross-examined on compensation earned in litigation matters.

With respect to lay witnesses, in a detailed order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co. Feb. 23, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a motion in limine filed by the plaintiff in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by the plaintiff's treating doctor that contained a positive result for marijuana use.

In his opinion, Nealon noted that questions which concerned the admissibility of evidence lie within with sound discretion of the trial court and would not be disturbed on appeal absent a clear abuse of that discretion. Nealon also held that evidence utilized to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred. The court relied upon the law that a witness may not be impeached or contradicted on a "collateral" matter.

In automobile accident personal injury case, the plaintiff denied, during her deposition testimony, that she used marijuana. The court precluded the defense efforts to cross-examine the plaintiff at trial with the plaintiff's drug screen that was positive for marijuana use.

In so ruling, Nealon noted that the Pennsylvania appellate courts have repeatedly held that "no witness can be contradicted on everything he testifies to in order to 'test his credibility.' The pivotal issues in a trial cannot be 'sidetracked' for the determination of whether or not a witness lied in making a statement about something that has no relationship to the case on trial."

Obamacare and the Collateral Source Rule

A recent trend in Pennsylvania personal injury matters involves defense counsel pointing to the Affordable Care Act to support an argument against any recovery of alleged medical expenses claimed by the plaintiff. The argument is that such expenses are or will be covered by insurance under the Affordable Care Act and therefore, they need not be awarded by a jury.

Plaintiffs argue that the well-settled collateral source rule should preclude any mention of any benefits from a collateral source in an effort to preclude or diminish the recovery of compensation from the alleged wrongdoer.

The issue of whether the defense in a personal injury litigation may refer to the Affordable Care Act during the course of a jury trial was addressed in the case of Deeds v. University of Pennsylvania, 110 A.3d 1009(Pa. Super. 2015). On appeal, the plaintiff argued, in part, that she was "entitled to a new trial because the trial court violated the collateral source rule when it 'improperly allowed [the defendants] to inform the jury that [the plaintiffs'] substantial medical needs were all being attended to at little to no cost to [the plaintiffs'] legal guardian due to the existence of state and federal education and medical benefits programs." The defense referred to Medicaid as well as to how Obama's Affordable Care Act would impact the future care costs in the case.

The Superior Court found these references at trial to be a patent violation of the long-standing collateral source rule, the purpose of which is to "avoid the preclusion or diminution of the damages otherwise recoverable from the wrongdoer based on compensation recovered from a collateral source," and, as such, remanded the case for a new trial.

Notable Shift in Bad Faith Cases

Representing a monumental shift in thinking in bad faith cases, in the case of Wolfe v. Allstate Property & Casualty Insurance, 790 F.3d 487 (3d Cir. 2015), the U.S. Court of Appeals for the Third Circuit ruled that it was not bad faith for a third party liability carrier not to include its insured's exposure to punitive damages in a settlement.

In Wolfe, the Third Circuit remanded an excess verdict bad faith case back for a new trial after ruling that the jury was impermissibly allowed to consider, in this subsequent bad faith claim, the amount of the punitive damages awarded against the tortfeasor at the trial of the underlying third party lawsuit.

In her opinion, Judge Marjorie O. Rendell wrote, "We predict that the Pennsylvania Supreme Court would conclude that, in an action by an insured against his insurer for bad faith, the insured may not collect as compensatory damages the punitive damages awarded against it in the underlying lawsuit. Therefore, the punitive damages award was not relevant in the later [bad faith] suit and should not have been admitted."

The Third Circuit in Wolfe notably stated that "[i]t follows from our reasoning that [a liability] insurer has no duty to consider the potential for a jury to return a verdict for punitive damages when it is negotiating a settlement of a case. To impose that duty would be tantamount to making the insurer responsible for those damages, which, as we have discussed, is against public policy."

A Look Ahead in Post-'Koken' Matters

Another year has passed without an opportunity for the appellate courts to address any of the novel procedural and substantive legal issues that challenge the commonwealth's trial court judges. Hopefully, the next year will be the one where these issues begin to go up the appellate ladder and result in appellate guidance that will serve to assist both the bench and the bar. •


Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins can be reached at dancummins@comcast.net.

Tuesday, December 29, 2015

Judge Gibbons of Lackawanna County Reaffirms That MVFRL Does Not Apply to Excess or Umbrella Policies

In his recent Opinion in the case of Ranocchia v. Erie Insurance Exchange, No. 2014-CV-4555 (C.P. Lacka. Co. Nov. 25, 2015 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas granted summary judgment in favor of Erie Insurance in a declaratory judgment matter on the issue of whether the Pennsylvania Motor Vehicle Financial Responsibility Law applies to and provides underinsured motorists benefits under and excess insurance policy containing both and expressed exclusion of such UIM benefits and legally deficient waivers of UIM benefits.  

In this matter, the Defendant carrier asserted that the MVFRL simply does not apply to excess insurance policies.   The Defendant carrier also asserted that, even if the Pennsylvania law does allow for UIM benefits under an excess liability policy, a provision in the excess policy expressly excluding UIM benefits prevents the Plaintiff from recovering any UIM benefits under that policy.  

The Plaintiffs countered with an argument that the waivers of UIM coverage provided by the Defendant relative to the excess liability policy created and ambiguity thereby requiring a reformation of the policy.  Stated otherwise, the Plaintiffs asserted that UIM benefits should be considered to be a part of the excess liability policy until waivers of UIM coverage were secured.  The Plaintiffs asserted that, because the waivers in this matter were invalid, the Plaintiffs were entitled to recover UIM benefits under the excess liability policy.  

In his decision, Judge Gibbons ruled that, while this precise issue “[w]hile this precise issue has never been addressed by our appellate courts, we are persuaded by existing case law regarding the MVFRL’s inapplicability to excess insurance policies that Defendants are entitled to summary as a matter of law.”  

In his Opinion, Judge Gibbons primarily rested his decision on the settled law that the MVFRL does not apply to excess or umbrella policies.  As such, there are no UIM requirements applicable to excess or umbrella policies.  

Where the excess policy, as here, clearly provided that it did not apply to UIM coverage, the inclusion of UIM rejection forms, although inconsistent with the expressed language of the policy indicating that there was no UIM coverage, did not create an ambiguity.   Accordingly, the court granted the Defendant carrier’s Motion for Summary Judgment.  

Anyone desiring a copy of Judge Gibbons' decision may click this LINK.

The Plaintiff has filed a Notice of Appeal from this decision.



 

Monday, December 28, 2015

Pennsylvania Supreme Court Rules on Propriety of Attorney's Fees in First Party Benefits Litigation Matters

Tort Talkers may recall that previous summaries of the various court decisions in the case of Doctor’s Choice Physical Medicine and Rehabilitation Center, P.C. v. Travelers Personal Insurance Company, addressing attorney’s fees awarded in a first party benefits peer review process litigation, had been repeatedly reviewed here.

Update: In a December 21, 2015 decision by the Pennsylvania Supreme Court at 146 MAP 2014, the Court addressed the issue of the availability of attorney’s fee awards against insurance companies that have revoked peer review provisions of the Motor Vehicle Financial Responsibility Law.

By way of background, after a bench trial at the trial court level, the Court of Common Pleas entered a verdict in favor of the medical provider, which, initially included an award of attorney’s fees of approximately $39,000.00.  On a later motion, the trial court struck the award of attorney's fees in this context.

On appeal, the Pennsylvania Superior Court reversed the trial court's decision to strike the fee award.

In the latest decision in the case, the Pennsylvania Supreme Court has reversed the Superior Court. In so ruling, the Supreme Court noted that it "remains cognizant of the short comings of the peer-review regime." However, the court left changes to the peer review process to be considered by the Legislature and declined to deviate from the court’s conventional statutory interpretation of the peer review statute at issue.  

Anyone wishing to secure more detail on this decision may click this LINK.


I send thanks to Attorney Tom McDonnell of the Pittsburgh law firm of Summers McDonnell for bringing this decision to my attention.

To review the Tort Talk blog posts on the Superior Court's earlier decision and the trial court's initial decision in this case, please go to Tort Talk at www.TortTalk.com and type in "Doctor's Choice" in the Search Box in the upper right hand column of the blog.

Pennsylvania Superior Court Reaffirms Insurance Bad Faith Test and Addresses Statute of Limitations

In one of its latest decisions in the area of insurance bad faith, the Pennsylvania Superior Court in the case of Rancosky v. Washington National Insurance Company, No. 1282 WDA 2014 (Pa. Super. Dec. 16, 2015, Bender, P.J.E., Jenkins and Musmanno, J.J.) (Opinion by Musmanno, J.), The court affirmed in part and vacated in part the entry of judgment in favor of the Defendant on the Plaintiff’s bad faith claim and remanded the case for a new trial.

This matter arose out of issues pertaining to a Cancer Policy issued by Conseco Health.   The Plaintiff paid premiums for a Cancer Policy under which the Plaintiff would be granted certain benefits if diagnosed with internal cancer while the policy was in effect.
 
In a lengthy 50 page Opinion, the Pennsylvania Superior Court outlined the current status of Pennsylvania law in bad faith litigation pertaining to insurance contracts.  
 
The Rancosky court reiterated that, in order to prove bad faith, an insured must present clear and convincing evidence that (1) the carrier did not have a reasonable basis for denying benefits under the policy, and (2) the carrier knew of or recklessly disregarded its lack of reasonable basis in denying the claim.

The significance of this Rancosky decision is that the court agreed with the Plaintiff’s argument that the trial court improperly applied the burden of proof upon the Plaintiff by erroneously requiring the Plaintiff to show a “dishonest purpose” or “motive of self-interest or ill will” on the part of the carrier under the first part of the two-part test.   Rather, the court stated that these elements should only be considered in determining whether the second prong of the bad faith test, i.e., whether a carrier knowingly or recklessly disregarded its lack of a reasonable basis for denying the claim.  

The Superior Court stated that the trial court could not have considered whether the carrier had a dishonest purpose or a motive of self-interest or ill will until it had first determined that the carrier lacked reasonable basis for denying benefits to the insured under the Cancer Policy.   The Superior Court more specifically found that the trial court improperly erred as a matter of law by using standards applicable to the second prong of the bad faith test in its determination of whether or not the Plaintiff had satisfied the first prong of the bad faith test.  

The Superior Court otherwise concluded that the evidence did not support the trial court’s determination that the carrier had a reasonable basis for denying the benefits to the insured.  

In its Opinion, the Superior Court also addressed the other allegations of the Plaintiff regarding a delay in the evaluation of the claim presented by the carrier.  

With respect to the coverage issues presented in this matter, the Superior Court noted that, when a carrier is presented with conflicting facts that are material of the issue of coverage, the carrier may not merely select or, as here, passively, “accept,” a singular disputed fact, to provide the carrier as a basis to deny coverage.   Rather, the carrier is required under the law to undertake a meaningful investigation to obtain accurate information that pertains to the coverage question.   Here the court found that the carrier failed to do so under the circumstances presented.

On a statute of limitations issue, the court rejected the carrier’s claim that the Plaintiff’s suit was barred by the statute of limitations applicable to bad faith actions.  
 
In so ruling, the Superior Court noted that, in the context of an insurance claim, a continuing or repeated denial of coverage is merely a continuation of the injury caused by the initial denial of coverage and does not constitute a new injury that triggers the beginning of a new statute of limitations period.  
 
However, the court stated that, when a Plaintiff alleges a subsequent, separate and distinct act of bad faith on the part of the carrier that is distinct from and unrelated to the initial denial of coverage, a new limitation period begins to run from the later active alleged bad faith.   In this regard, the court found that an alleged inadequate investigation can be a separate and independent injury to the insured.  
 
The Rancosky court also found that a refusal to reconsider a denial of coverage based upon new evidence is another example of a separate and independent injury to an insured. 
 
In such scenarios, the statute of limitations for such injuries begins to run when the insurer communicates to the insured the results of its inadequate investigation, or in the second instance, when the carrier communicates to the insured its refusal to consider new evidence that discredits the insurer’s basis for its denial of the claim.  
 

Anyone wishing to review the majority Opinion by the Pennsylvania Superior Court on the above bad faith issues may click this LINK.
 
The Concurring and Dissenting Opinion by Judge Jenkins can be viewed HERE.
 
 
 

Tuesday, December 22, 2015

Pennsylvania Superior Court Affirms Entry of Summary Judgment On Basis of Assumption of Risk Defense (Non-Precedential)

In its recent non-precedential decision in the case of Denzel v. Federal Cleaning Contractors, et.al., No. 3307 EDA 2014 (Pa. Super. Oct. 9, 2015 Bowes, J., Mundy, J., and Fitzgerald, J.) (Memorandum Opinion by Mundy, J.), the Pennsylvania Superior Court confirmed that a trial court may enter summary judgment based upon an assumption of risk defense.

Although this decision is non-precedential, the court relied upon the precedential Supreme Court case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), in support of its decision.

Both the Denzel and Carrender cases involved slip and fall matters. In this non-precedential Denzel Opinion, the Pennsylvania Superior Court affirmed the trial court’s entry of summary judgment in favor of Defendant after finding that a Plaintiff business invitee assumed the risk of injury by walking through ice and snow at an outdoor shopping center despite knowledge of the dangerous conditions. 



Anyone wishing to review this non-precedential decision may click this LINK.


Commentary:  Although non-precedential, the Denzel decision not only reaffirms that the assumption of risk defense is alive and well in Pennsylvania but also that summary judgment may be granted on the basis of this defense when supported by the record before the court, i.e., when no reasonable minds on a jury could disagree on a conclusion that the Plaintiff assumed the risk of injury such that he or she is barred from a recovery.

Monday, December 21, 2015

Quoted in Pennsylvania Law Weekly Article on Latest Trends in Post-Koken Auto Litigation in PA

Here's a LINK to a recent December 15, 2015 Pennsylvania Law Weekly front page article by Ben Seal entitled "Lawyers Await Appellate Guidance on UIM Bifurcation" in which I was quoted (along with Attorneys Scott Cooper and Michael Pisanchyn) on the current notable trends in Post-Koken Auto Accident litigation.

If you cannot access the article via the Link provided please let me know and I will email a copy.


Federal Court Rules on Propriety of Financial Wealth Discovery in Punitive Damages Cases

In the case of N’Jai v. Bentz, Civil Action No. 13-1212 (W.D. Pa. Nov. 24, 2015 Fischer, J.), the court denied a Plaintiff’s Motion to Compel relative to a punitive damages claim.

In so ruling, the federal court asserted that a Plaintiff is not automatically entitled to discovery of a Defendant’s financial wealth simply by successful pleading a punitive damages claim.  Rather, the court noted that a Plaintiff must go beyond the pleadings and produce prima facie evidence to show a right to recover punitive damages before a court would permit such financial wealth discovery.  

Stated otherwise, the court found that financial wealth discovery is not appropriate in a civil litigation matter until there is a reasonable evidentiary basis to show that a Plaintiff’s punitive damages claims can be submitted a jury.  

Anyone wishing to review this case online may click this LINK.

 
I thank Attorney James M. Beck of the Philadelphia office of Reid Smith for bringing this case to my attention.


 

Friday, December 18, 2015

Thursday, December 17, 2015

Judge Nealon of Lackawanna County Rules on Discoverability of a Doctor's Credentials File Materials in Med Mal Case

In the recent Opinion in the case of Vaccaro v. Scranton Quincy Hospital Company, LLC, et.al., No. 2014-CV-7675 (C.P. Lacka. Co. Dec. 8, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues raised by the Plaintiff in a medical malpractice action.  

In this matter, the Plaintiff sought to compel the Defendant hospital to produce the medical malpractice litigation history records that the hospital obtained relative to the Defendant Obstetrician in connection with the Obstetrician’s initial application or clinical privileges.  The Plaintiff also sought the production of the bi-annual “ongoing professional practice evaluation” reports prepared by the hospital with respect to the Defendant-Obstetrician.  Also at issue under the motion to compel, were two (2) warning letters that the hospital’s Chief Medical Officer and Medical Records Consultant forwarded to the Defendant-Obstetrician regarding delinquent medical records.  

The hospital contended that these “credentials file” materials were protected from discovery by the Peer Review Protection Act.  

Judge Terrence R. Nealon
Lackawanna County
After providing a thorough review of the Peer Review Protection Act in conjunction with the rules of discovery, Judge Nealon generally noted that, under the Peer Review Protection Act, records that are generated or maintained by hospitals in ordinary course of business, rather than as part of a peer review or quality assurance process by hospital “review organization,” are not shielded from discovery. 

Accordingly, the court ruled that the Obstetrician’s malpractice claims information compiled by the hospital in connection with the Obstetrician’s initial application for clinical privileges was not protected from discovery.   The court found that these documents were not prepared by or submitted to the Peer Review or a Patient Safety Committee.  The Court also noted that these documents were relevant to the Plaintiff’s corporate liability claim against the hospital for allegedly failing to select and retain only competent physicians.  

Judge Nealon also ruled that the two (2) written warnings prepared by the Medical Records Department representatives addressed to the Obstetrician did not involve the disclosure of peer review information that was developed as part of a quality assurance examination and, as such, these records were also found to be discoverable.  

The Court generally noted that the malpractice history materials and medical records warnings did not come with a blanket protection from the Peer Review Act merely by being placed in the Obstetrician’s credentials file.

The Court did otherwise also rule that the bi-annual professional practice evaluations which were submitted to the hospital’s Quality Management Department for the express purpose of assessing professional competence and improving the quality of patient care, and which were specifically classified as confidential and privileged peer review information, were immune from discovery under the Peer Review Protection Act.

Overall, the Plaintiff's motion to compel was granted in part and denied in part.

Anyone desiring a copy of this Opinion may click this LINK.

 

Tuesday, December 15, 2015

Punitive Damages Claim Allowed to Proceed in Dog Bite Case

In his recent decision in the case of Ramana v. Diaz, PICS Case No. 15-1738 (C.P. Monroe Co. Aug. 26, 2015 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas ruled that punitive damages may be imposed upon a dog owner who had knowledge of the risks posed by their dogs after repeated prior attacks after which the dog owners failed to take any action.

  In this matter, the court denied the Defendant’s Preliminary Objections seeking to strike the punitive damages claims.

After reviewing the current status of Pennsylvania law on punitive damages claims, the court found that the Plaintiff had alleged sufficient facts to support the claim. In this regard, the court noted that the Plaintiff had alleged that the dogs at issue had come on to the Plaintiff’s property on three (3) prior occasions and had attacked people on those occasions. The Plaintiffs additionally alleged that the dog owners were aware of the dogs’ propensities and that the Defendants failed to confine or control their dogs.

I do not have a copy of this decision. A copy may be secured by calling the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and paying a small fee.

Source: "Digest of Recent Opinions, and" Pennsylvania Law Weekly (December 1, 2015).

Wednesday, December 9, 2015

Pennsylvania Supreme Court Denies Appeal in "Named Driver Only" Policy Case

Tort Talkers may recall the prior November 13, 2014 Tort Talk post on the Montgomery County case of An v. Gillmore & Victoria Fire and Cas. Co. in which that court upheld the validity of a "Named Driver Only" policy.  (Click HERE to view that trial court post).

Click HERE to view the Tort Talk Post on the Superior Court decision affirming the trial court's decision.

 Note that this is not a Named Driver Exclusion provision case.

Rather, a "Named Driver Only" policy is an automobile insurance policy that provides liability coverage only for the named insured driver that is listed in the policy.  As stated, the trial court and the Superior Court have upheld the validity of such policies.

UPDATE:  The Pennsylvania Supreme Court has denied the Plaintiff's Petition for Allowacne of Appeal by Order only.  An v. Victoria Fire and Cas. Co., No. 377 MAL 2015 (Pa. Dec. 8, 2015). 

As such, the Superior Court's affirmance on the validity of "Named Driver Only" stands.

Click this LINK to view the Supreme Court's Order.


I send thanks to Attorney Victor M. Verbeke, a Managing Attorney in the Plymouth Meeting office of The Law Office of Jill Snyder for bringing this Order to my attention.



Defendant's Use of Contention Interrogatories Upheld

In the case of Rogers v. Thomas, No. 2012-CV-1464 (C.P. Lacka. Co. Nov. 23, 2015 Nealon, J.), Judge Terrence R. Nealon upheld a defendant's right to serve and receive responses to "contention interrogatories" in a personal injury matter.

This personal injury case arose out of a shooting incident.  The Plaintiffs sued the shooter, the shooter's father, and the father's gun store business.

The Plaintiff filed an Amended Complaint with myriad allegations of liability.  During discovery, the defense filed "contention interrogatories" to which the Plaintiff objected and also provided general, non-specific responses.  The matter came before the court on a defense motion to compel.

In granting the motion to compel, the court noted that the contention interrogatories followed the defendant's efforts to secure information through more typical discovery requests.  The contention interrogatories were designed to elicit facts that the Plaintiff planned to prove at trial in support of the new allegations and theories of liability set forth in the Amended Complaint.  The contention interrogatories reference specific paragraphs and allegations in the Amended Complaint and sought discovery in support of these allegations.

Referring to the Explanatory Note to Pa.R.C.P. 4003.1, Judge Nealon noted that contention interrogatories typically follow standard discovery requests and are designed to narrow the issues for trial.  See Op. at p. 6-7.  The court noted that contention interrogatories are particularly warranted when a defendant is faced with circular or ambiguous allegations.

After finding that the Plaintiff's generic responses to the contention interrogatories and simple reference to documents and expert reports previously produced to be insufficient, the court granted the Defendant's motion to compel.

Anyone wishing to secure a copy of Judge Nealon's Opinion in Rogers v. Thomas may contact me at dancummins@comcast.net.




Friday, December 4, 2015

Vote On Whether To Increase Mandatory Retirement Age for Pennsylvania State Judges to Appear on Ballot in April, 2016


According to a November 17, 2015 Pennsylvania Law Weekly article by Ben Seal entitled "Judicial Retirement Age Heads Towards Public Vote," a recent Pennsylvania Senate vote cleared the way for voters to decide a ballot question during the April 26, 2016 primary election on whether or not to raise the mandatory retirement age for judges from 70 to 75.

Wednesday, December 2, 2015

Judge Minora Addresses Personal Jurisdiction Over Foreign Corporation in Products Case



In the case of Schoenberg v. General Motors, LLC, No. 2012-CV-6092 (C.P. Lacka. Co. Oct. 16, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas sustained the Preliminary Objections of a foreign Defendant under an argument of lack of personal jurisdiction, both general and specific in a products liability case. 

The decision is of note as it provides a detailed analysis of the current status of the law of Pennsylvania pertaining to the exercise of jurisdiction over foreign corporations.

Anyone wishing to review this decision by Judge Minora in Schoenberg v. General Motors, LLC may click this LINK.


Source of imagenersp.osg.ufl.edu

Wednesday, November 25, 2015

THANK YOU



 
 
T H A N K S
 
 
 
Thanks very much for your readership and for your contributions to Tort Talk.  I am grateful for your support of the blog.
 
Sending you Best Wishes for a Happy Thanksgiving Weekend.
 
Dan Cummins
 
 
 


Tuesday, November 24, 2015

Post-Koken Trial Order Out of Washington County on Evidentiary Issues--Plaintiff Precluded From Calling Claims Rep as Witness

In recent Orders issued by the Washington County Court of Commons Pleas of Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.), the court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence at a Post-Koken trial related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers.  

The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.  

According to the information secured in this matter, this case involved a trial against State Farm as the UIM carrier.  There was no tortfeasor defendant involved in this trial.  

Anyone desiring a copy of these Orders may contact me at dancummins@comcast.net.

Monday, November 23, 2015

Judge Amesbury of Luzerne County Rules on Deposition of Claims Rep

In his recent decision in the case of Boyle v. Progressive Specialty Insurance Company, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.), Judge William H. Amesbury of the Luzerne County  Court of Common Pleas granted an Order without Opinion granting the Motion of the Plaintiff to Compel a Deposition of the Progressive claims handler. 

Judge William H. Amesbury
Luzerne County
In granting that Motion, the court further ordered that the Plaintiffs were precluded from deposing the claims representative as to any mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense, or respecting the strategy or tactics in defense of claim by the carrier.  

Anyone desiring a copy of this Order may contact me at dancummins@ccomcast.net.  I send thanks to Attorney Neil O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of this Order.  

Special Trial Master in Lackawanna County Rules on Discoverability of Post-Suit Claims Notes

In a recent Order issued in the case of McTague v. Myers and Progressive, No. 769-Civil-2015 (C.P. Lacka. Co. Nov. 2, 2015, Special Trial Master), Attorney Henry Burke, the Special Trial Master handling discovery issues in the Lackawanna County Court of Common Pleas issued an Order requiring the UIM Defendant to produce post-suit claims log notes but allowed the Defendant to redact any mental impressions, conclusions, or opinions respecting the value or merit of a claim or a defense or respecting strategy or tactics.    

Notably, this Order was entered in the case in which there is no bad faith claim pending against the UIM carrier.  

Anyone desiring a copy of this Order, which is of questionable precedential value given that it was entered by a Special Trial Master covering discovery motions court, may contact me at dancummins@comcast.net.
 

I send thanks to the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of this decision. Attorney Patrick Scanlon of that office was the prevailing Plaintiff's attorney in this case. 

Thursday, November 19, 2015

ARTICLE: Ending Post-Koken Wars of Attrition

This article of mine appeared in last week's November 10, 2015 edition of the Pennsylvania Law Weekly and is republished here with permission.



Civil Litigation

Ending Post-'Koken' Wars of Attrition

by
 
, The Legal Intelligencer

  
Discovery issues continue to burden the trial courts in post-Koken auto accident lawsuits where uninsured and underinsured motorist breach of contract claims are combined with bad-faith claims. Despite the high burden of proof attendant with showing bad faith, plaintiffs often include such claims as a "hammer" in an effort to pressure on the UM/UIM carrier to settle the underlying claims, only to then drop the bad-faith claim when the UM/UIM claim is settled. Defendant insurance companies typically strike back by hiring additional big-city defense counsel to fight bad-faith discovery efforts at all costs.

In such cases, the courts are often presented with a motion filed by the defendant insurance company seeking to sever the UM/UIM claims and bad-faith claims into two separate matters. These defense motions are typically combined with a request for a stay of any and all discovery on the bad-faith claims until a settlement or verdict on the separate UM/UIM claim is reached.

Until recently, the trend in the trial courts was to follow a procedural framework advocated by Allegheny County Court of Common Pleas Judge R. Stanton Wettick by severing the UM/UIM claims from the bad-faith claims for purposes of the later trial of the matter, but still allowing discovery to proceed on all claims, even the bad-faith claim, in the meantime. These courts have indicated that any discovery issues, if they happen to arise, could always be addressed by way of discovery motions.

As these cases thereafter proceeded beyond the pleadings stage, the norm has become that these post-Koken matters being bogged down in bad-faith discovery disputes so hotly contested that they have been described by Monroe County Court of Common Pleas Judge David J. Williamson as amounting to a "war of attrition."

In two recent decisions, Williamson has bucked the trend and ruled, in the interest of judicial economy, that bad-faith discovery should instead be precluded until the conclusion of the companion UM/UIM claim so as to allow these types of cases to proceed more efficiently. The practical effect of these rulings is that the bad-faith discovery war of attrition is delayed, if not prevented altogether.

Wettick's Way

In the initial trend of bad-faith discovery decisions in post-Koken matters, a number of trial courts simply followed the guidance offered on this issue by Wettick in the seminal case of Gunn v. Automobile Insurance Co. of Hartford, PICS Case No. 08-1266 (C.P. Allegheny July 25, 2008).
In Gunn, the court ruled that since the trial of the UM claim would be by jury and the trial of the bad-faith claim would be by a bench trial under Pennsylvania state law, there is a severance of the claims for trial purposes by operation of law. However, Wettick went on to refuse the request to stay bad-faith discovery, suggesting that issues and objections raised in that regard could be addressed by way of discovery motions.

In Gunn, and again in Wutz v. Smith and State Farm, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.), Wettick addressed such discovery motions and noted that bad-faith discovery of the defendant UM/UIM carrier's settlement evaluation information would not be permitted during the pendency of the UIM claim. The court accepted the argument that to rule otherwise would be akin to requiring the defense in a football game to furnish its defensive formation for the upcoming play to the plaintiff before the plaintiff selected the play that it would call. Accordingly, the end result was that the most important information for the bad-faith claim could not be accessed by a plaintiff during the pendency of the UM or UIM claim. Rather, only limited, piecemeal discovery would be allowed while the UM/UIM claim is pending.

Wettick's framework is set up such that, once the jury came back with its verdict on the UM or UIM claim, the defendant insurance company would then be required to immediately dump all of its now discoverable bad-faith information and documentation from its UM/UIM file upon the plaintiff's attorney. The Gunn/Wutz framework also requires that the bad-faith trial would then begin immediately with the same judge presiding. Wettick did suggest that, if the plaintiff's counsel required a continuance to review the newly produced discovery, then the court should consider delaying the start of the bad-faith trial.

While clean and straightforward in theory, the procedural framework set up in the Gunn and Wutz cases for combined UM/UIM and bad-faith cases is impractical and almost impossible to follow in reality.

Although excellent litigators, rare will be the plaintiffs attorney ready to digest and analyze reams of records produced by the carrier on the bad-faith claim and then immediately dive headlong into another trial on the complexities of the bad-faith claim after an exhausting trial on the UM/UIM personal injury claim.

Perhaps even more importantly, the Gunn/Wutz framework of a bad-faith trial commencing immediately upon the verdict of the UIM claim does not allow for the plaintiff's completion of full depositions of the defendant insurance company's claims representatives and managers relative to bad-faith issues prior to the start of an immediate bad-faith trial. The parties may also need an opportunity and time to submit the discoverable materials to expert witnesses relative to the bad-faith claim.

Moreover, it is highly unlikely in any event that a defendant carrier would simply turn over the requested bad-faith discovery without another fight or motion for a protective order. Similarly, once a plaintiff's attorney secures some initial information from the carrier on the bad-faith claim, additional requests for more discovery or motions to compel additional bad-faith discovery would most likely be required.

Overall, there remains an ongoing split among the trial courts on whether or not to stay bad-faith discovery during the pendency of the UM/UIM claims. As it becomes more apparent that allowing bad-faith discovery to proceed during the UM/UIM claim results in real discovery wars of attrition that unnecessarily overburden both the courts and the litigants and drastically slow the movement of such matters through the court system, there may be a shift in thinking developing among trial court judges on this issue.

Williamson's Way

That shift in thinking was recently evidenced by Williamson reconsidering his own rulings on this regard in a post-Koken case that came before him.

In his initial March 18 decision in the case of Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015), Williamson followed the trending Gunn/Wutz procedural framework by severing the UIM and bad-faith claims but denying a request for a stay of bad-faith discovery.

In his more recent May 8 decision in the same Hakim case, Williamson noted that bad-faith discovery disputes had arisen in the matter and found that such disputes often rose to a "war of attrition" that only served to burden already overburdened court systems.

Williamson then took a step back, looked at the big picture, and stated, "We have reexamined our opinion concerning the denial of the stay requested by the defendant of the bad-faith claim, while the breach of contract claim is pending. Upon further reflection, we determine that a stay of the bad-faith claim should be entered until such time as the breach of contract action is concluded."

Williamson supported his reversal of his prior decision by noting that evidence of the handling of claims, while relevant in the bad-faith claim, was not relevant to the merit of the actual injury claim and that the release of the claims information would be prejudicial. The court also noted that this is particularly so where it was certainly possible that the bad-faith claims would never even come to fruition pending the results of the UIM claim—if the bad-faith claim was dropped after a settlement or verdict was reached on the UIM claim. The court also reasoned that the release of the carrier's thoughts and analysis prior to the UIM claim being fully litigated could be improperly utilized by plaintiffs as a bargaining chip in settlement negotiation.

Returning to the notion of the "war of attrition," the court additionally noted that allowing bad-faith discovery to proceed during the pendency of UM/UIM claims would likely lead to more discovery requests, more motions to compel, more motions for protective orders, and more court hearings, all of which would serve to unnecessarily delay the resolution or trial of the UM/UIM claims. This, the court found, would not only be a burden on the court's resources, but would also serve to prejudice each litigant and delay the resolution of the matter.

Accordingly, Williamson entered an order vacating his prior decision in Hakim and staying all discovery in the bad-faith claim pending the resolution of the UIM claim.

Williamson would go on to rule in the same fashion in his more recent Oct. 1 decision in Brands v. Erie Insurance Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015). In Brands, Williamson severed a bad-faith claim from a UIM claim, but this time issued a stay order against any bad-faith discovery pending the resolution of the UIM claim. In so ruling, Williamson reiterated the same detailed rationale set forth in the Hakim decision as support for the stay of bad-faith discovery.

In Brands, the court also went on to address a plaintiff's concern for a prompt and fair disposition of the bad-faith claims following the resolution of the UIM claims. Williamson stated that such concerns could be addressed by the court's control of discovery efforts and trial scheduling following the conclusion of the UIM case.

D├ętente for the War of Attrition

Whether Williamson's decisions amount to the beginning of a shift in the pendulum toward the more practical approach of both severing and staying bad-faith claims in post-Koken matters remains to be seen.

Surely, staying bad-faith discovery during the pendency of the UM/UIM claims is more practical since full discovery on the bad-faith allegations is not allowed in any event until the UM/UIM claim is resolved. More importantly, a trial court order staying bad-faith discovery pending the resolution of the companion UIM claim will delay, if not prevent altogether, a discovery war of attrition and thereby further the overriding interests of judicial economy for all involved.

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



 



Monday, November 16, 2015

Electronic Filing of Record on Appeals Now Allowed

The Pennsylvania Supreme Court has issued a November 13, 2015 Order, effective immediately, allowing for the electronic filing, transmission, and/or remand of a record on an appeal.

Here is a LINK to the Order.

Wednesday, November 11, 2015

Western District Court of Pennsylvania Addresses Admissibility of Contributory Negligence Evidence in Products Liability Case

In the products liability case of McDaniel v. Kidde Residential & Commercial, 2015 US Dist. Lexis 139905 (W.D. Pa. Oct. 14, 2015 Fisher, J.), the court granted a defense Motion In Limine seeking to introduce evidence of the Plaintiff’s negligent conduct in a case involving a house fire.

The court ruled that, in a product liability action involving negligence, all evidence of Plaintiff’s causative conduct relative to the start of the fire, or conduct during the fire, is admissible to establish a comparative negligence claim.

In the strict liability context, the background information pertaining to the Plaintiff’s actions in creating the fire at issue are highly relevant to disputed issues, particularly the causation issue.

The court ruled that the Plaintiff’s conduct in moving a burning item is relevant to the assumption of risk allegation. The court also found that the evidence was admissible, at least in the negligence claim, as being relevant to the Defendant’s mitigation of damages defense.

The court also otherwise ruled that the Defendants have a right to impeach the Plaintiff’s testimony as to how the accident occurred with the evidence in question.

This decision can be viewed online HERE

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.

Monday, November 9, 2015

New Lackawanna County Local Rule Regarding Assignment of Medical Professional Liability Actions and Protracted Actions; Amendments to Local Rules on Discovery Motions

The Lackawanna County Courthouse
Scranton, PA


The Lackawanna County Local Rules have been amended to allow for the assignment of Medical Professional Liability Actions and Protracted Cases to a particular judge on a rotating basis upon the filing of a Complaint.  The new Rule was drafted by Judge Terrence R. Nealon, reviewed by the LBA Civil Rules Committee, and adopted by an Order of Court signed by President Judge Thomas J. Munley.

Changes were also made to the Discovery Motions Court Local Rules and, as of January 1, 2016, Judge Carmen D. Minora will serve as the Discovery Motions Court Judge in place of the old practice of a Special Trial Master presiding over discovery motions.

The new/amended Local Rules shall be come effective 30 days after their publication in the Pennsylvania Bulletin.

The Rule can be reviewed at this LINK.

Friday, November 6, 2015

Judge Minora of Lackawanna County Addresses Validity of UIM Sign Down Form

In his recent decision in the case of Schoenberg v. State Farm Insurance Company, No. 2012-CV-5005 (Lacka. Co. Oct. 13, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied the Defendant’s Motion for Summary Judgment in a declaratory judgment matter on UIM coverage issues.

The central issue in this matter was whether or not the carrier had a valid UIM coverage sign down election form from the Plaintiff.

This matter arises out of a motor vehicle accident that occurred on November 2, 2010. Following the accident, a claim was submitted to the carrier on behalf of the Plaintiff’s decedent for UIM coverage.

The insurance company Defendant pointed to a sign down form which indicated that the Plaintiff’s decedent had elected uninsured/underinsured coverage of $15,000.00.

In its Motion for Summary Judgment, the carrier argued that the requirements of 75 Pa C.S.A. §1734 and 1791 had been complied with in securing the reduction of UIM benefits coverage under the policy.

The Plaintiffs countered with the argument that the forms were insufficient, that the forms were ambiguous, and also raised an issue as to whether or not the form contained the signature of the Plaintiff’s decedent (as opposed to a forged signature).

Judge Carmen D. Minora
Lackawanna County
After reviewing the current status of Pennsylvania law on the election of reduced UM/UIM coverage, Judge Minora found that genuine issues of material fact pertaining to whether or not the decedent’s signature was valid served to preclude the entry of summary judgment. 

Anyone wishing to review Judge Minora's Opinion in Schoenberg may click this LINK.

Wednesday, November 4, 2015

Notable Post-Tincher Products Decision Out of Clarion County

In a recent Post-Tincher products liability decision out of the Clarion County Court of Common Pleas in the case of Sliker v. National Feeding Systems, et al., No. 282 CD 2010 (C.P. Clarion Co. Oct. 19, 2015 Arner, P.J.), the court addressed several issues of note in great detail.

The court decided various motions in limine and, in part, allowed the admission of what used to be excludable “negligence” evidence in strict liability matters before Tincher

The court provided a thorough analysis of contributory negligence issues and issues pertaining to industry standards as well.

Also, after reviewing Superior Court precedent on the issue, this court also limited the heeding presumption in products cases to workplace injury claims.

 
Anyone wishing to review this decision may click this LINK

 I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this decision to my attention.  Check out Attorney Beck’s excellent Drug and Device Law Blog HERE.

Tuesday, November 3, 2015

Public Road Not Part of "Insured Location" Under Homeowner's Policy

In his recent decision in the case of O’Brien v. Ohio Casualty Insurance Company, No. 2002-CV-6690 (C.P. Lacka. Co. Oct. 14, 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas denied a Plaintiff’s Motion for Post-Trial Relief following a bench trial on a declaratory judgment action involving an insurance coverage issue under a homeowner’s policy. 
The Plaintiff was at a graduation party at the homeowner’s residence. During the party, the injured party Plaintiff was operating an ATV owned by the homeowner’s son when the injured party Plaintiff crashed after hitting loose gravel, striking a tree and a telephone pole and coming to rest on the property of a different residence.

The homeowner’s insurance company for the Defendant homeowner denied coverage under policy provisions indicating that liability coverage did not apply to bodily injury arising out of the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person. The policy language also provided that this exclusion did not apply to a motorized land conveyance designed for recreational use off public roads, which was not subject to motor vehicle registration, and which was owned by an insured and on an insured location.

Judge Minora had previously denied summary judgment on the issues presented in this case.  A summary of that decision may be viewed in a prior Tort Talk blog post HERE

After a bench trial in the declaratory judgment action, Judge Minora issued a Memorandum and Order holding that the location of the ATV accident could not meet the policy definition of an "insured location" under the policy of insurance.

Accordingly, the court found that the homeowners lacked insurance coverage and that the homeowner’s insurance carrier was not required to either defend or indemnify the homeowner’s under that policy of insurance.

Thereafter, the injured party Plaintiff filed a Motion for Post-Trial Relief. In his most recent Opinion in this case, Judge Minora revisited the issues and reaffirmed his decision that coverage need not be afforded under the policy at issue. In so ruling, Judge Minora reiterated his finding, based upon Pennsylvania appellate law, that the definition of "insured location" is not broad enough to include the public roadway involved in the subject accident. 

Anyone wishing to review Judge Minora's October, 2015 Opinion in O'Brien may click this LINK.


UPDATE:  Judge Minora's decision was affirmed on appeal by the Pennsylvania Superior Court in a non-precedential memorandum decision issued on October 25, 2016.



Friday, October 30, 2015

Superior Court Addresses Liability of Premises Owner Where Vehicle Strikes Plaintiff On Sidewalk In Front of Premises

In its recent decision in the case of Truax v. Roulhac, No. 1797 EDA 2013, 2015 Pa. Super. 217 (Pa. Super. Oct. 7, 2015) (en banc) (Op. by Mundy, J.) (Jenkins, J., dissenting), the Pennsylvania Superior Court addressed the liability of premises owners relative to a pedestrian who was injured when a vehicle drove onto the sidewalk area in front of the Defendants' buildings and pinned the Plaintiff to the buildings resulting in personal injuries.

According to the Opinion, in the area of the accident, the parking lot surface was level with the sidewalk area. The only barrier to vehicles between the parking lot area and the sidewalk area was a five (5) inch tall concrete wheel stop.

The pedestrian Plaintiff was injured by a DUI driver who drove over the wheel stop and struck the Plaintiff.

During the course of the litigation, the premises owners Defendants filed separate Motions for Summary Judgment asserting, in part, that the harm was not foreseeable because the premises owners were unaware any similar incidents of motor vehicles jumping the wheel stops.

The premises owners Defendants also argued that they were under no duty to install any other types of barriers to separate the parking lot from the sidewalk area.

One the premises owners Defendants also asserted that he had maintained his duty as a possessor of land because the wheel stops comply with applicable zoning ordinances governing commercial off street parking.

An initial panel of the Pennsylvania Superior Court had previously issued a Memorandum Opinion affirming the granting of summary judgment. With this re-argument en banc, the Superior Court reversed the remanded the case for further proceedings.

After reviewing the law of premises liability, and in particular, the highest duty of care owed to business invitees, the en banc Superior Court found that it was reasonably foreseeable that a vehicle operated by a third party could encroach upon the sidewalk such that the premises owners had a duty to exercise reasonable care to protect its business invitees from that harm. The Superior Court noted that there was sufficient evidence, including expert opinion evidence, supporting the Plaintiff’s claims. The Court found that, reviewing the evidence in a light most favorable to the injured party, required that the issues be allowed to proceed to a jury for a determination.

The Superior Court noted its disagreement with the trial court’s Opinion that the risk of a vehicle encroaching upon a sidewalk is per se unforeseeable as a matter of law. Rather, the issue of foreseeability in this regard should be submitted to a jury unless the Plaintiff altogether fails to present evidence on that issue.

On the second issue, the Superior Court agreed with the Plaintiff’s contention that the trial court erred by concluding the premises owners discharged their duty as a matter of law by complying with applicable building codes and ordinances. The Superior Court found that, while compliance with law or administrative regulation can, at times, relieve the tortfeasor from a finding of negligence per se, such compliance does not establish, as a matter of law, that due care was exercised.

Accordingly, the court stated that, although a defendant can introduce evidence of its compliance with the law or regulation as evidence of the exercise of due care, compliance with that law regulation does not prevent a finding of negligence where a jury could find that a reasonable person would have taken additional precautions.

Turning the facts of the case before, the Superior Court found that, while the premises owners’ maintenance of concrete wheel stops in accord with applicable building codes and ordinances could be evidence of the premises owners’ exercise of due care, such evidence was not conclusive on the issue of whether or not the premises owners exercises due care as a matter of law so as to relieve them of liability. Rather, these issues should have been allowed by the trial court to proceed to the jury.

Consequently, the Superior Court reversed the trial court’s entry of summary judgment and remanded the case for further proceedings. Judge Jenkins filed a dissenting Opinion.

Anyone wishing to review the Majority Opinion in Truax online may click this LINK.

Judge Jenkins Dissenting Opinion in Truax can be viewed Here.


I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton for providing me with a copy of this decision. Attorney Foley served as the Amicus Brief writer for the Pennsylvania Association for Justice in this matter.  

Judge Mannion of Federal Middle District Court Tackles Sackett Rejection of Stacking Analysis

In his recent memorandum decision in the case of Mitchell v. Progressive Pref. Ins. Co., No. 3:14-0384 (M.D.Pa. Sept. 29, 2015 Mannion, J.), Judge Malachy E. Mannion  granted summary judgment in favor of the Defendant carrier on a stacking issue after a review of the Sackett line of cases.

As the Sackett analysis can be convoluted, a link to the decision is provided below for review.

Judge Malachy E. Mannion
Federal Middle District Court
Ultimately, the court ruled that the carrier was not required to obtain a new rejection of stacking issue when the Plaintiff added a vehicle (motorcycle) to the policy.  Judge Mannion based his decision upon the application of the continuous "after-acquired" clause contained in the policy.

Anyone wishing to review this decision in detail may click this LINK

I send thanks to Attorney David Friedman of the King of Prussia law office of Forry Ullman for bringing this case to my attention.



Western District Federal Court Applies Sackett Analysis to Find That New Waiver Forms Not Required

In the Western District Federal Court case of Allstate v. Gierlach, No. 2:13-cv-699 (W.D. Pa. Sept. 10, 2015 Cercone, J.), the court granted the Motion for Summary Judgment filed by Allstate in a declaratory judgment matter on a waiver of UIM coverage issue.  
By way of background, the policyholder rejected UIM coverage when the policy was initiated and coverage was provided on one (1) personal automobile vehicle. Thereafter, another vehicle was added and no new form was secured.

In the underlying matter, the insured’s resident son sustained fatal injuries in a motor vehicle accident.

The insured’s attorney attempted to raise a Sackett argument and asserted that a new form should have been secured when another vehicle was added to the policy. Allstate disagreed and filed the declaratory judgment action.

After reviewing the current status of the Sackett analysis under Pennsylvania law, Judge Cercone entered summary judgment in favor of Allstate. The court, relying upon the Pennsylvania Superior Court decision in the case of Smith v. The Hartford Ins. Co., 849 A.2d 277, 280-81 (Pa. Super. 2004) noted that the plain language of §1731 and 1791 under the Motor Vehicle Code evidenced the intent of the Pennsylvania legislature that, once properly waived, UIM coverage need not be reinstated absent affirmative action on the part of the insureds.

Judge Cercone noted that the holding in Smith was reinforced by the Pennsylvania Supreme Court in the Sackett case. Judge Cercone stated that the law can be summarized as establishing that "a decision to reject UIM benefits carries forward until affirmatively changed. [There is nothing in [Section] 1731 counseling otherwise.]" [citation omitted].

Judge Cercone found that due to the uinsured’s wholesale waiver of UIM benefits available under the policy, the addition of cars to the policy at a later date was not considered to be a "subsequent purchase of UIM coverage," and was, therefore, not sufficient to constitute affirmative action by the insured’s reinstate UIM coverage.

Based on this analysis, the court granted the Motion for Summary Judgment on Allstate and found that the insured’s prior valid waiver of UIM coverage carried forward when new cause was added to the policy. 


Anyone wishing to review the Allstate v. Gierlach decision may click this LINK.

Wednesday, October 28, 2015

Judge Nealon Allows NIED Claim To Proceed in Med Mal Case


In his recent October 19, 2015 decision, in the case of Euceda v. Green, No. 13-Civil-3373 (Lacka. Co. Oct. 19, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Motion for Summary Judgment filed against a Plaintiff’s negligent infliction of emotional distress (NIED) claim in the context of a medical malpractice case.  

According to the Opinion, the Plaintiff-mother made a claim for negligent infliction of emotional distress after witnessing the traumatic birth of her son who was born with a severely misshaped and bruised head allegedly as a result of the Defendants’ negligence.  The Plaintiff-mother also allegedly witnessed the postpartum seizures that her son suffered, the neonatal resuscitation and intubation that her son required, other treatment administered to her son, and her son’s eventual death in her arms eight (8) days after his birth.

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon also noted that there is evidence in the record allegedly showing that, as a result of the Plaintiff-mother’s contemporaneous observance of the above incidents, the Plaintiff-mother continued to experience severe depression, bouts of hysterical sobbing, inability to breath, nausea, insomnia, and nightmares about her son’s delivery, physical appearance at birth, and death.

The Defendants in this medical malpractice action filed a Motion for Partial Summary Judgment seeking to dismiss the Plaintiff-mother’s claim for negligent infliction of emotional distress on the basis that the Plaintiff-mother could not demonstrate her physical manifestation of her emotional distress and given that the Plaintiff-mother had not received any psychiatric or psychological care for her depression.

Judge Nealon denied the motion and allowed the claim for negligent infliction of emotional distress to proceed.

The court ruled, in part, that, although it was undisputed that the Plaintiff-mother had not received any professional medical treatment for her depression for emotional state, or emotional state, the court found that medical evidence is not required to sustain a cause of action for negligent infliction of emotional distress. In this regard, Judge Nealon cited to Krysmalski by Krysmalski v. Tarasovich, 622 A.2d 298, 305 (Pa. Super. 1993), appeal denied, 636 A.2d 634 (Pa. 1993) [other citations omitted].

Moreover, Judge Nealon found that the bodily symptoms evidence in the record before the court as reportedly sustained by the Plaintiff-mother on a recurrent basis served to satisfy the "physical manifestation" requirement for a claim of negligent infliction of emotional distress under Pennsylvania law.

Accordingly, the court ruled that the Defendants had not established that the mother’s claim for negligent infliction of emotional distress was fatally deficient. The Motion for Partial Summary Judgment was denied and the claim was allowed to proceed.


Anyone wishing to review Judge Nealon's decision in Euceda may click this LINK.


 
 

Monday, October 26, 2015

Pa.R.C.P. 211 Amended To Reaffirm Right To Oral Argument On any Motion


The Pennsylvania Supreme Court has amended Pa.R.C.P. 211, pertaining to "Oral Argument," to address a discrepancy between the former Rule 211 and recent appellate decisions on the right of a party to conduct oral argument on any motion filed.

The Amended Rule clarifies that any party, or any interested party, may have oral argument on any motion filed.  The Amended Rule also confirms that the court can require oral argument if none is requested by the parties.  Under the Rule, the court still retains the right to decide the matter without oral argument if all parties agree to the same.

Here is a LINK to Rule 211 as amended, and here is a LINK to the Explanatory Note.


Source of imagewww.virginiaappellatelaw.com

Another Trial Court Crafts Another Remedy for Parameters of Neuropsychological IMEs

The Far Side
Gary Larson


Another trial court decision regarding the permissible parameters of a neuropsychological examination is the Delaware County 1case (from a year ago) of D'Aurizio v. Rota, No. 2013-008170 (C.P. Del. Co. Dec. 2, 2014 Green, J.).

In this Order without Opinion, the court ordered the plaintiff to attend the neuropsychological IME but also mandated that the plaintiff's attorney would be permitted to be present during the interview portion of the exam and that the testing portion of the neuropsychological exam could be videotaped but without an audio component.

The defense was also ordered to share any neuropsychological testing data with the plaintiff's expert after the completion of the exam.

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

Here's a LINK to a Pennsylvania Law Weekly article of mine two years ago on the topic.

To review other more recent Tort Talk posts on the permissible parameters of neuropsychological IMEs as determined by trial courts from around the Commonwealth in the absence of appellate guidance, click HERE and HERE.

I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.