Thursday, April 30, 2015

Split of Authority Develops in Dauphin County on Post-Koken Severance vs. Consolidation Issue

A recent Post-Koken severance Order was handed down in Dauphin County in the case of Phaler v. Ray and Westfield Ins. Co., No. 2014 CV 7332 (C.P. Dauph. Co. April 3, 2015 Bratton, J.).

The court granted a third party tortfeasor's Preliminary Objections seeking the severance of the negligence claims asserted against him from the breach of contract claims asserted against the UIM carrier.

This decision was by Order only. 

Notably, this decision goes against the trend of several prior Dauphin County decisions that went the other way, i.e., in favor of the consolidation of such claims through discovery.  No rationale for this change of position is noted in the Phaler Order.

Anyone desiring a copy of this Order may contact me at

I send thanks to the prevailing defense attorney, W. Darren Powell, Esq. from the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.

Wednesday, April 29, 2015

Attorney-Client Privilege and Subject Matter Waiver of Privilege Analyzed by Lackawanna County Judge Minora

In his recent decision in the case of One Beacon America Ins. Co. v. Phila. Indem. Ins. Co., et al., No. 2012 -CV-4490 (C.P. Lacka. Co. 2015 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a discovery issue pertaining to the inadvertent disclosure of attorney-client privileged communications. 

By way of background, the case arose out of claims for breach of contract and a request for the entry of a declaratory judgment that coverage was owed under an insurance policy issued to the a local insured entity by Philadelphia Indemnity Insurance Company. 

This matter involved an argument that One Beacon had disclosed a privileged attorney-client communication which disclosure served to waive that privilege and thereby allowed for the discovery of the document at issue.  The communication was contained in a claim note in which an unidentified adjuster referred to the opinion of in-house counsel. 

In his Opinion, Judge Minora provided a detailed review on the current status and parameters of the attorney-client privilege under Pennsylvania law as well as the recognized "subject matter waiver" of the privilege.  This particular  type of waiver recognizes that a voluntary disclosure of a communication protected by the attorney-client privilege results in a waiver of the privilege for all communications on the same subject matter.

After reviewing the matter, Judge Minora concluded that the document at issue could not waive privilege since it was not a communication from a client to an attorney.  Therefore, the document was not protected by the attorney-client privilege.  Since the document was not protected under the attorney-client privilege, it could not serve as the basis for a subject matter waiver of the attorney-client privilege.

Judge Minora also went on to analyze the five-part test of whether the inadvertent disclosure amounted to a waiver of the privilege under the circumstances of the case.  Judge Minora ultimately ruled that the five-part test was not satisfied.

As such, the defendant's motion to compel the production of the documents at issue was denied.

This Opinion serves as an excellent primer on the issues raised by an inadvertent disclosure of a document or communication asserted to be protected by the attorney-client privilege.

Anyone wishing to secure a copy of this case may contact me at
I send thanks to Attorney Matt Clayberger of the Harrisburg, PA office of Thomas, Thomas & Hafer for bringing this case to my attention.

Monday, April 27, 2015

Summary Judgment in Food Fight Slip and Fall Case Upheld on Appeal

Tort Talkers may recall the blog post reporting on the granting of Summary Judgment in the Lackawanna County Court of Common Pleas decision of Rovinsky v. Lourdesmont, No. 2011-CV-2304 (C.P. Lacka. Co. June 19, 2013 O’Brien, S.J.) by senior visiting Judge Peter O’Brien in a slip and fall case that arose out of a cafeteria food fight.

That decision was recently affirmed in a non-precedential Opinion by the Pennsylvania Superior Court.  Notably the appellate court upheld the trial court's decision that the record confirmed that the Plaintiff assumed the risk of walking across a floor rendered dangerous by the food fight and that, given that assumption of the risk by the plaintiff, no duty was owed to her by the Defendant possessor of land.

Anyone wishing to review the Superior Court's "Non-precedential" decision may contact me at

The prevailing defense attorney in this matter was Attorney Daniel D. Stofko of the Scranton office of the Cipriani & Werner law firm.

Source of photo:  John Belushi from Animal House (1978).

TORT TALK EXPO 2015 Approved for 4 CLE Credits

The Tort Talk Expo 2015, set to take place on Thursday, September 24, 2015 at the Mohegan Sun Casino in Wilkes-Barre, PA, has been approved for 4 CLE Credits by the Pennsylvania CLE Board.  There will be 3 Substantive and 1 Ethics CLE Credits offered at the program.

For a Program Agenda, click HERE

To Register to save your spot, please click this LINK.

To reserve a room at the Mohegan Sun Casino, please click HERE

Friday, April 24, 2015

Compromise Verdict Upheld Even Though Parties Stipulated to Amount of Economic Damages

In its recent decision in Kinderman v. Cunningham, No. 1604 EDA 2013, 2015 Pa. Super. 30 (Pa. Super. Feb. 11, 2015 Bowes, Ott, Jenkins, J.J.) (Op. by Bowes, J.)(Ott, J., Dissenting), the Pennsylvania Superior Court ruled that a new trial ordered by the lower court on the issue of damages was improper where the jury’s award of only a fraction of the uncontested economic damages presented at trial likely represented a compromise verdict based upon the substantial conflict over the issue of liability.

This case arose out of a fractured ankle that allegedly resulted from a boating accident.   In its Opinion, the court noted that the issue of liability was hotly contested and witnesses provided conflicting accounts as to how the accident happened and who was at fault.  

At trial, the Plaintiff’s medical bills and lost wages were stipulated to by both parties.  More specifically, the parties agreed that the Plaintiff's medical expenses amounted to $28,541.15 and his wage losses totalled $8,872.50.  As such, going into the trial, the parties had stipulated that the Plaintiff's economic damages claims amounted to a total sum of $37,413.65.

Nevertheless, the jury returned a verdict finding the Plaintiff and the Defendant equally negligent (i.e., 50-50) and awarded damages only in the amount of $10,000.00, which were reduced to $5,000.00 to reflect the Plaintiff’s 50% contributory negligence.  

On appeal, the Plaintiff argued that the jury’s award was arbitrary and contrary to the uncontested evidence of the economic damages presented.  

The defense argued that the jury was permitted to compromise its award of damages in light of the contested issues of liability. 

The Pennsylvania Superior Court recognized that compromise verdicts were permissible under Pennsylvania law.   The appellate court again emphasized that there were contested arguments and conflicting testimony on the liability issues.   It appeared to the Pennsylvania Superior Court that it was likely that the jury reached an impasse and compromised on the verdict to reach an agreement on the question of liability.  Ultimately,  the Superior Court found that the jury’s verdict was sufficiently supported by the record.    

As such, the Pennsylvania Superior Court found that, where a substantial conflict on the issue of liability indicated that the jury reached a compromise verdict, it would have been an abuse of discretion for the trial court to grant a new trial on the issue of damages.   As such, Superior Court ruled that the trial court properly denied a request for a new trial in this regard.

Anyone wishing to review the Majority Opinion of the Superior Court written by Judge Bowes may click this LINK.

The Dissenting Opinion by Judge Ott can be viewed HERE.

Thursday, April 23, 2015

Non-Precedential Superior Court Opinion on Fair Scope of Expert Reports (Check Out the Dissent)

In a recent Memorandum Opinion, the Pennsylvania Superior Court addressed the fair scope of expert report rule, as well as issues pertaining to the untimely production of an expert report, in the medical malpractice case of Chiodetti v. Fernandez, No. 63 EDA 2013 (Pa. Super. Feb. 6, 2015 Bowes, Ott, Strassburger, J.J.) (Mem. Op. by Ott, J.)(Bowes, J., Dissenting). 

As this Opinion was issued only as a Memorandum Opinion and has been identified by the Superior Court as a “non-precedential” Opinion was a detailed summary is not provided.  
(Why does the Superior Court all-too-often label written Opinions as "non-precedential" when every bit of guidance from the appellate courts on important and recurring issues, such as the fair scope of expert report rule in this case, is helpful to both the bar and the lower courts in addressing the same questions in future cases?)
Should you wish to review the Pennsylvania Superior Court’s latest Opinion, albeit non-precedential, on the issue of the fair scope of the expert report rule, please click this LINK. 

Judge Bowes' strongly worded Dissenting Opinion in this case can be viewed HERE.  Although not precedential, this Dissenting Opinion would serve as an excellent guide to formulate a brief supporting an argument that an opposing party's expert had improperly testified beyond the fair scope of his or her report at trial.

Source of Image:

Tuesday, April 21, 2015

Pennsylvania Superior Court Addresses Requirements for Valid Reservation of Rights Letter

In an April 15, 2015 decision in the case of Erie Ins Exch. v. Lobenthal, 2015 Pa.Super. 78 (Pa. Super. 2015 Ford Elliott, P.J.E., Shogun, Musmanno, J.J.)(Op. by Ford Elliott, P.J.E.), the Pennsylvania Superior Court addressed the validity of a reservation of rights letter issued by the carrier to its insured defendant in a motor vehicle accident matter. According to the opinion, the carrier insured the defendant driver's parents but the defendant driver was also an insured by virtue of the fact that the defendant driver resided with her parents.

The defendant driver was involved in a motor vehicle accident while she was allegedly driving under the influence. At some point after the accident, a reservation of rights letter, raising certain coverage issues was sent to the parents only.

After the underlying personal injury suit was filed by the allegedly injured plaintiff against the parents, as owners of the vehicle, and the defendant driver-daughter, the parents filed preliminary objections and were dismissed from the matter.

Thereafter, about three and a half months after that dismissal of the parent defendants, and about seven months after the filing of the Complaint, the liability carrier issued a reservation of rights letter to the lawyer of the defendant driver daughter.

In this separate declaratory judgment action, the parties were seeking a judicial declaration on whether the liability carrier was required to defend or indemnify the defendant daughter driver in the underlying action based upon the application of certain exclusions in the liability policy. The main issue before the trial court was whether, after tendering a defense for the insured defendant driver, the liability carrier ever properly preserved its right to challenge coverage and deny a defense to its insured in the reservation of rights letters the carrier sent out.

The trial court granted the carrier's disclaimer of coverage with respect to the defendant driver on the basis of a "controlled substances" exclusion contained in the policy.  The insured defendant driver and the underlying plaintiff appealed that decision to the Superior Court.

The Superior Court reversed the trial court and held that liability coverage should be afforded by the carrier to the defendant driver because carrier did not reserves its rights properly and waited too long to reserve its rights and disclaim coverage for the driver. 

The Court noted that the reservation of right letter to the defendant driver was only addressed to the parent named insureds and not the daughter driver.  Accordingly, the Court found that that letter did not properly notify the daughter of the reservation of the rights to the claim against her. 

The Superior Court also ruled that the fact that the reservation of rights letter was sent to the defendant driver's counsel did not serve to impute notice to the insured.  The court also found that the reservation of rights letter which was not sent to the defendant driver until seven months after the filing of the Complaint was not timely.

The appellate court rejected the liability carrier's argument that there was no prejudice to the defendant driver with respect to the timeliness of the reservation of rights letter given the fact that the defendant driver was defended by assigned counsel all the while.  The court noted that Pennsylvania law allows for prejudice to the insured defendant may be presumed in these circumstances where a liability carrier allegedly fails to issue a timely reservation of rights letter.  

For these primary reasons, the Superior Court reversed the trial court's ruling in favor of the liability carrier's disclaimer of coverage for the defendant driver.

Anyone wishing to review this decision may click this LINK.

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

Source of image:

Automobile Insurance Policy Providing Coverage to "Named Driver Only" Upheld as Valid

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 post).

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 an update, it is noted that, in what may be an appellate decision of first impression, the Pennsylvania Superior Court has affirmed the trial court decision in this case at 2015 Pa.Super. 84 (Pa. Super. April 17, 2015 Gantman, P.J., Shogun, and Allen, JJ)(Op. by Shogun), thereby upholding the validity of these types of automobile insurance policies.

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

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

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

The Pennsylvania Superior Court agreed with the notion that, where the application for insurance coverage and the policy documents repeatedly and clearly expressed that coverage would only be provided to the driver identified in the policy (and for a substantially reduced premium), the parties would be held to their agreement in this regard in the insurance contract and the provisions should be upheld.  

The court found that this type of insurance agreement did not violate the provisions of Pennsylvania's Motor Vehicle Financial Responsibility Law or the public policy of Pennsylvania.

Anyone wishing to review a copy of the Superior Court's decision in An may click this LINK.

I send thanks to the prevailing defense attorney Victor M. Verbeke, Esquire, of the Plymouth Meeting branch of the Law Office of Jill Snyder, for bringing this decision to my attention.

Monday, April 20, 2015

Bifurcation/Consolidation of Post-Koken Trials Uncovered To Date

In follow up to Friday's Tort Talk post on Lackawanna County Judge Terrence R. Nealon's decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), in which Judge Nealon ruled in favor of consolidated Post-Koken trials, below is a listing of other cases on the Bifurcation/Consolidation of Trial issue uncovered to date.
This list is copied over from the Tort Talk Post-Koken Scorecard that is always freely accessible at (scroll down the right hand column until you get to the "Post-Koken Scorecard" label and click on the date thereunder).
This list, which is updated as of April 16, 2015, is detailed but is not represented to be exhaustive and one should conduct their own additional research in an effort to uncover any other cases.
I welcome receiving copies of any decisions any Tort Talkers may come across in order that this list may be updated from time to time.
The list below confirms that there is a split of authority among the trial courts of Pennsylvania.  It is noted that the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm supports an argument that favors the consolidation of Post-Koken trials.  However, the Stepanovich decision has been read by others as suggesting that a consolidated trial is permissible, but not finally deciding the issue. 
To date, the Pennsylvania Supreme Court has not had an opportunity to address the issue.



Eastern District Federal Court

Moninghoff v. Tilet and Allstate Insurance Company, No. 11-Civil-7406 (E.D. Pa. June 27, 2012 McLaughlin, J.),(Federal Eastern District Court Judge Mary A. McLaughlin granted the Defendant, Allstate Insurance Company’s Motion to Stay Plaintiffs’ bad faith claims in a post-Koken litigation).


Western District Federal Court

Cracker v. State Farm Mut. Auto. Ins. Co., No. 11-0225, 2012 U.S. Dist. Lexis 109357 (W.D. Pa. Aug. 3, 2012 Lancaster, C.J.)(United States District Court for the Western District of Pennsylvania denied State Farm’s Motion In Limine to bifurcate a breach of contract and bad faith post-Koken lawsuit.).


State Appellate Court Decision

Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa.Super. Oct. 15, 2013 Ford Elliott, P.J.E., Ott, J., Musmanno, J.)(Opinion by Ott, J.)(Concurring and Dissenting Op. by Ford Elliott, P.J.E.), appeal denied 11 WAL 2014 (Pa. April 22, 2014)  (Superior Court found no due process violation by the trial court's decision to allow the Post-Koken trial involving a tortfeasor defendant and a UIM carrier defendant to proceed in front of a jury without mention of the UIM carrier as a party Defendant.  Yet, the Court did rule that Pa.R.E. 411, pertaining to preclusion of mention of liability insurance at trial, does not apply in context of references to UIM insurance at trial.   However, open issue remains on whether common law prohibition of mentioning other forms of insurance at trial serves to preclude evidence of insurance in this context;  Pennsylvania Supreme Court denied Petition to Appeal.).

(Split of Authority at trial court level)


Allegheny County

Vecchio v. Tunison and Erie Insurance Exchange, No.: GD11-009690 (C.P. Allegheny Oct. 9, 2012 Folino, J.) (In Order without Opinion, trial court granted Motion to Bifurcate filed by UIM carrier in the combined negligence/UIM action, which motion was filed less than two (2) months before this scheduled date of the trial listing.  The trial court ordered that the Plaintiffs’ third party negligence claim would be tried before the jury first, with the UIM claim tried separately thereafter.) .

Lehigh County

Purta v. Blower and Erie Ins. Exch., No. 2010-C-2515 (C.P. Lehigh Co. Sept. 20, 2011 Reibman, J.)(Court addressed the seemingly novel issue presented by a Motion to Severance filed by the UIM carrier Defendant to bifurcate jointly filed third party and underinsured motorist (UIM) claims into separate trials. In a detailed Order, Judge Reibman granted the UIM carrier's Motion for Severance and ordered that the case proceed to trial with only the Plaintiffs and Defendant tortfeasor being involved in the first trial.).

Lackawanna County

Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.)(In an Order, Court denies tortfeasor Defendant's motion for bifurcation;  court also outlines appropriate jury instructions for a Post-Koken trial involving both a third party tortfeasor and UIM carrier defendants).

Luzerne County

Loefflad v Nauks &Allstate Fire & Casualty Ins. Co., No. 8673 of 2010 (C.P. Luz. Co. June 20, 2012) (By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).

Price v Price, Auto Glass Unlimited & State Farm, No. 13625 of 2010(C.P. Luz. Co. June 20, 2012)(By Order only, Judge Gelb denies request to bifurcate Post-Koken case for trial).

Borthwick v. Webb, No. 2735-Civil-2010 (C.P. Luz. Co. Sept. 7, 2012 Vough, J.)(Court ruled at consolidated Post-Koken trial that “Plaintiff is limited to informing the jury that he had an underinsured policy with Defendant, GEICO Insurance Company.  There shall be no other evidence presented to the jury regarding insurance.”).

Schuylkill County

Post v. Schnerring and Liberty Mut. Ins. Co., No. S-1887-12 (C.P. Schuylkill Co. Oct. 22, 2013 Dolbin, J.)(Judge Cyrus Palmer Dolbin of the Schuylkill County Court of Common Please denied Motions to Bifurcate the trial filed by both the UIM carrier, Liberty Mutual Insurance Company and the third party Defendant.).

Centre County Court Decision on Cell Phone Use and Claim for Punitive Damages

In a recent Centre County Court of Common Pleas decision in the case of Gunsallus v. Smith, No. 2013-3765 (C.P. Centre Co. April 7, 2015 Kistler, J.), Judge Thomas K. Kistler granted summary judgment in favor of the defense and dismissed a punitive damages claim against a tortfeasor Defendant based upon cell phone use during the course of a motor vehicle accident.  

The Plaintiff’s claim for punitive damages was based upon allegations that the tortfeasor was speeding immediately prior to the accident on a road unfamiliar to him and allegations that the defendant was talking on a cell phone which caused him to drive with his non-dominant hand.  

In its Opinion, the court noted that talking on a cell phone while driving is “conduct which is permitted under Pennsylvania law.”  

After discovery, the Defendant filed a Motion for Partial Summary Judgment seeking a dismissal of the punitive damages claims on the basis that the Plaintiff did not produce any evidence to prove that the tortfeasor’s conduct was outrageous as required under the law pertaining to punitive damages.  

In his Opinion, Judge Kistler set forth the law of punitive damages and note the court’s role in initially determining whether or not the Plaintiff has presented sufficient evidence to take such a claim to the jury.

After noting that there still appears to be no Pennsylvania appellate court decision on the issue of cell phone use as supporting a claim for punitive damages, Judge Kistler ruled that, while the facts presented “may have created a situation that was not the most ideal, taken together, they do not rise to the level of outrageous or reckless conduct” sufficient to allow for a claim for punitive damages to proceed.  

As such, Defendant’s Motion for Partial Summary Judgment was granted and the Plaintiff’s claim for punitive damages was dismissed with prejudice.  

Anyone desiring a copy of this decision may contact me at


Friday, April 17, 2015



Thursday, September 24, 2015

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA 

(3 Substantive, 1 Ethics Credit [to be requested])

Door Prizes - Vendor Giveaways - Raffle Prizes 
[Registration 11:30 am - 12 noon]


12:00 pm - 1:00 pm - "Lessons from Forrest Gump"


by Daniel E.  Cummins, Esq. FOLEY, COMERFORD & CUMMINS 


1:00 pm - 2:00 pm – CIVIL LITIGATION UPDATE

by Melissa A. Scartelli, Esq. SCARTELLI AND OLSZEWSKI 


BREAK 2:00 pm – 2:15 pm


  2:15 pm - 3:15 pm - MEDICAL HOUR

 Dr. Sheryl Oleski – Low Back Pain Overview



BREAK 3:15 pm – 3:30 pm


 3:30 pm - 4:30 pm - VIEW FROM THE BENCH

Ethical Considerations for Settlement Conferences
and Other Dealings with the Court



Judith Price, Esq.  Dougherty, Leventhal & Price



  Pennsylvania Superior Judge Court Judge Christine Donohue

Luzerne County Judge Lesa Gelb

Lackawanna County Judge Margie Bisignani-Moyle

U.S. Federal Middle District Magistrate Judge Karoline Mehalchick






To Register, visit and click on registration link

or mail check made out to "Tort Talk" and form below to:


Daniel E. Cummins, Esq.

 Foley, Comerford & Cummins

507 Linden Street, Suite 700 
Scranton, PA 18503


Cost: $195 Attorneys; $25 Claims Representatives


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Thursday, April 16, 2015

Judge Nealon Rules in Favor of Consolidation for Post-Koken Trials (And Also Rules on Appropriate Jury Instructions)

In his April 15, 2015 decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another notable post-Koken decision in which he became one of the first few judges from across the Commonwealth of Pennsylvania to address the issue of whether or not a post-Koken third party/UIM matter should proceed to trial in a consolidated or bifurcated fashion - - Judge Nealon came down on the side of the consolidation and against bifurcation.  

However, Judge Nealon did rule that separate coverage issues presented with respect to the UIM claim should and would be bifurcated from the liability and damages claims presented in the negligence and UIM matters.  

According to the Opinion, the issue before the court revolved around whether a Plaintiff’s third party liability claim and underinsured motorists (UIM) claim may be tried in a single proceeding before the same jury, and if so, what jury instructions should be provided regarding the named parties and the questions to be decided by the jury.

In this matter, the tortfeasor Defendant was objecting to a consolidated trial with an insurance company as a Co-Defendant.  According to the Opinion, the UIM carrier did not object to a consolidated trial. 

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon ruled that, since the potential liabilities of the tortfeasor and the UIM carrier for damages arose out of the same factual background and involved common questions of law in fact, the Plaintiff’s liability and UIM claims would be consolidated for a single trial pursuant to Pa. R.C.P. 2229(b).  

The court also ruled that, given that the identification of the UIM carrier as a real party in interest and as a potential provider of UIM coverage did not introduce evidence of the tortfeasor’s liability insurance in violation of Pa. R.E. 411, the UIM carrier would be identified to the jury as a named Defendant who was furnishing prospective UIM coverage.  Judge Nealon noted that this identification of the UIM carrier by name as well as the reason as to why that carrier was in the case was necessary so that the jury would understand the participating UIM insurance carrier’s status as an adverse party to the Plaintiff.  

As noted above, Judge Nealon separately ruled that the UIM coverage dispute involving the Plaintiff’s residency and her entitlement to UIM benefits from the UIM carrier did not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages disputes.  Accordingly, the court ruled that the trial would be bifurcated on that separate issue pursuant to Pa. R.C.P. 213(b).  The court noted that the jury would first address the merits of the Plaintiff’s personal injury claims and render a verdict on the liability and damages issues.  

Judge Nealon went on to note that, if the jury awarded damages in excess of the tortfeasor’s liability insurance policy limits, such that UIM coverage was triggered, the second phase of trial would be conducted on the coverage issue to determine whether the Plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under that UIM policy at issue.

Judge Nealon further noted that, in the event a jury awards damages in an amount less than the tortfeasor’s liability insurance limits, the issue of the Plaintiff’s residency and the applicability of her grandparents’ UIM coverage would be rendered moot.

In his thorough Opinion on the issue of joinder or bifurcation of post-Koken claims at trial, Judge Nealon confirmed that he had reviewed the law of other jurisdictions in this case as well as in his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.), which research revealed that of the decisions on the separate, but similar, issue of consolidation/severance at the commencement of the case arising out of 33 other states, 27 jurisdictions allowed for the joinder of UM/UIM claims with civil actions against tortfeasors, while six (6) states favored severance of UM/UIM claims from tort actions.  

In ruling that liability in UIM claims may be joined for a single trial, Judge Nealon relied in part on the Pennsylvania Superior Court decision in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).

On the separate issue of the content of the jury instructions for a Post-Koken trial, the Plaintiff requested the court to utilize those instructions Judge Nealon had crafted in his prior decision in the case of Moritz v. Horace Mann Property and Casualty Insurance Company, 2014 W.L. 5817681 (C.P. Lacka. Co. 2014 Nealon, J.).  The court noted that Allstate objected to certain portions of those jury instructions set forth in the Moritz case.  

The tortfeasor Defendant was additionally arguing that neither the identity of the UIM carrier as a party, nor the question of the Plaintiff’s UIM claims, should be disclosed to the jury in the jury instructions.  

Judge Nealon agreed that the entirety of his proposed jury instructions as crafted in the Moritz case should not be read to the jury in this matter as the jury instructions drafted in the Moritz case were “appropriate only a case in which the Plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits.”  

For this reason, Judge Nealon agreed to somewhat limit the extent of his jury instructions in this case involving both a negligence claim against the third party tortfeasor and a UIM claim against the Plaintiff’s own carrier.  The court also tailored its jury instructions in this matter in light of the separate coverage dispute that was still pending with regards to the potential UIM claim.  

Overall, Judge Nealon agreed that the jury instructions in this matter should not reference the existence or amount of the tortfeasor’s liability insurance coverage as that would prejudice the tortfeasor in violation of the mandate under Pa. R.E. 411 prohibiting any reference to a tortfeasor's liability coverage at trial.  

In this Kujawski case, Judge Nealon stated that he would instruct the jury that the Plaintiff was required by law to establish by a preponderance of the evidence that the tortfeasor was negligent, that the tortfeasor’s negligence caused harm to the Plaintiff, and that the Plaintiff suffered damages as a result of her injuries.  

The court noted that the jury would also be informed in this Post-Koken matter that the policy of the UIM carrier (referenced by name in the instructions) provided underinsured motorists coverage, which may be available to pay some of the damages that may be awarded. 

Judge Nealon also planned to instruct the jury that the UIM carrier (again, referenced by name) should not be treated “any differently than any other Defendant in a civil action simply because [name of the UIM carrier] is an insurance company.”  

Judge Nealon also ruled that, given his ruling in favor of bifurcation on the separate coverage issue, the jury would also be advised that, depending upon its verdict at the conclusion of the liability and damages portion of the trial, the jury may be required to hear additional evidence and render a second verdict with regards to the Plaintiff’s residency at the time of the accident.    

Anyone wishing to review this Opinion may click this LINK
I send thanks to Attorneys Chad DeFelice and Joseph Pulcini, Jr. of the Bethlehem, PA office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.

Judge Minora of Lackawanna County Addresses Liability of Mental Health Professionals for Harm Caused by Mentally Unstable Patients

In the case of Rarrick v. Silbert, No. 2002 CV 4951 (C.P. Lacka. Co. March 24, 2015 Minora, J.), Judge Carmen D. Minora denied a motion for summary judgment filed by the defense in a medical malpractice case against a psychiatrist and another defendant entity in a case involving allegations that the defendant(s) failed to take appropriate steps to avoid a situation with an emotional unstable individual from escalating into a hostage-taking event for the Plaintiff and her family members that had to be defused by police intervention.

The defense argued that it was entitled to summary judgment because Pennsylvania law does not recognize a duty by mental health providers to protect unidentified third parties from the actions of mental health patients.  The defense also asserted that the Plaintiff had failed to offer evidence of gross negligence as allegedly required by the Mental Health Procedures Act.

The Plaintiffs countered with an argument that the Defendants stood in a special relationship with the Plaintiff that required the Defendants to take action to protect the Plaintiff and imposed upon the Defendants a professional duty to warn the Plaintiff of potential danger from her allegedly mentally unstable husband.  The Plaintiffs also asserted that there were issues of fact on the gross negligence question that prevented the entry of summary judgment.

Judge Carmen D. Minora
Lackawanna County
After reviewing the applicable law, Judge Minora agreed that, under the Restatement of Torts, there was no duty to control the conduct of third persons unless a special relationship existed.  However, there was case law noted by the court that a mental health professional may have a duty to protect by warning others of potential danger in extremely limited circumstances involving specific and immediate threats of serious bodily injury to a specifically identified individual or a readily identifiable individual.

Here, while there was evidence that the family members of the allegedly mentally unstable individual contacted the psychiatrist leading up to the incident, there was no threat voiced by the allegedly mentally unstable person to the psychiatrist found in the record.  Accordingly, Judge Minora found that the Plaintiff's argument failed to support a finding of a creation of a duty owed by the psychiatrist to the Plaintiff in this regard.

However, Judge Minora found that issues of fact on the gross negligence allegations of liability under the Mental Health Procedures Act question, prevented the entry of summary judgment in this matter.

Judge Minora also address issues with respect to the production of expert reports 1042.28.

Anyone wishing to review a copy of this decision by Judge Minora in the Rarrick case, may click this LINK.

Judge Williamson of Monroe County Stays His Course of Severing Bad Faith and UM/UIM Claims for Trial (But Not Discovery)

In his recent decision in the case of Kemp v. Mut. Benefit Ins. Co., PICS Case No. 15-0517 (C.P. Monroe Co. Jan. 14, 2015 Williamson J.), Judge David J. Williamson addressed a defendant carrier's motion to sever bad faith claims from the contractual claims in the early stages of the matter.  The motion also requested a stay on any bad faith discovery requests.

This matter involved UM/UIM coverage and bad-faith damages claims.  In her complaint, plaintiff sought recovery of UM and UIM benefits and bad faith damages under 42 Pa.C.S.A. §8371. She alleged a bad faith delay in the Defendant carrier's request for a statement under oath, a medical examination, or medical records.

Defendant filed to motion to sever the bad faith claims from the contractual claims and to stay discovery on the bad faith claims until resolution of the contractual claims.
Judge David Williamson
Monroe County
The court granted defendant's motion to sever but denied its motion to stay discovery.  Judge Williamson noted that there was no appellate authority regarding whether to sever bad faith claims from contractual claims and that there was a split among the courts of common pleas on the issue.

The court did hold that the Defendant insurance company would be prejudiced by joining the bad faith claims with the contractual claims during trial. Citing his own previous decision on similar issues in the case of Orsulak v. Penn National [See HERE], Judge Williamson granted the motion to sever the bad faith claims.

  As to defendant's motion to stay discovery regarding the bad faith claims, the court found that staying discovery until after resolution of the contractual claims would unfairly and unnecessarily delay a conclusion of all proceedings. Further, there were more efficient measures the court could use to protect defendant from prejudice than ordering a blanket freeze on all discovery regarding bad faith.  Judge Williamson noted that if actual prejudice caused by bad faith discovery requests could be shown as discovery progressed, the court could bar certain discovery until resolution of the contractual claims.

Anyone desiring a copy of this decision may email me at

Source:  "Case Digests."  The Pennsylvania Law Weekly (March 30, 2015).

Wednesday, April 15, 2015

Public Road Running in Front of Home Not Part of "Insured Location" For Homeowner's Insurance Coverage Purposes

In his recent decision in the case of   O'Brien v. Ohio Casualty, No. 2002 CV 6990 (C.P. Lacka. Co.   Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas ruled that a homeowner's carrier had a duty to defend and indemnify in a case involving an ATV accident that occurred off of the premises of the insured homeowner.

After thoroughly reviewing the current status of the duty to defend/duty to indemnify law for declaratory judgment actions involving liability insurance coverage questions, Judge Minora tackled the central question before him of whether the "insured location" as defined in the insurance policy was implicated by the facts pertaining to how the subject accident occurred.

In the policy, the "insured location" was generally defined as the "premises you use."

Here, the person injured on the ATV drove the ATV away from the insured home, down the road, and then crashed on another homeowner's property.  Pointing to the similar scenario presented in the federal court decision of Haines v. State Auto, Judge Minora noted that the policy definition in that case was not found to cover a public road that ran in front of the insured premises.

Judge Carmen D. Minora
Lackawanna County
Judge Minora also pointed to a court of common pleas decision in which a similar argument was rejected on the grounds that it was unlawful to drive an ATV on public roadways.

As such, the court in O'Brien rejected the insured homeowners' attempt to invoke the coverage provision of the policy under an argument that they regularly used the road upon which the ATV was driven at the time of the accident.  The court also pointed out that the insured homeowners who were being sued did not regularly use the other property upon which the ATV eventually crashed so as to invoke the "insured location" language under the policy.

Accordingly, the homeowner's Motion for Summary Judgment on the coverage issue was denied and the carrier was not required to defend or indemnify the homeowners with respect to the underlying personal injury lawsuit arising out of the ATV accident involving an ATV owned by the homeowners' son.

Anyone wishing to review this decision online, may click this LINK.

Monday, April 13, 2015

Fishing Allowed With Written Discovery Requests -- But Only With a Hook or Harpoon (Not a Net)

In his recent Order of March 16, 2015, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the common issue of the allowance of liberal discovery efforts as compared to fishing expeditions in the case of Bandru v. Fawzen, No. 2013-CV-3959 (C.P. Lacka. Co. March 16, 2015 Nealon, J.).

This matter arose out of a motor vehicle accident.   More specifically, in this case, the court addressed a Motion by the Defendant to strike the Plaintiff’s objections to records subpoenas that the Defendant had addressed to the Plaintiff’s healthcare providers as well as to two (2) automobile insurance carriers.  

The gist of the Plaintiff’s objections is that the Defendant sought medical records dating back to the Plaintiff’s date of birth which was more than 52 years before.   As such, the Plaintiff asserted that the records requests were overly broad and sought information that is not relevant and not likely to lead to the discovery of admissible evidence.   The Plaintiff further stated that he would not object to subpoenas which were reasonably limited in time and scope.  

The defense countered with an argument that the Plaintiff had admitted during his deposition that he had had extensive dental work performed in the mid-1980s (in this matter, the Plaintiff was alleging a TMJ injury), that the Plaintiff had been injured in previous motor vehicle accidents.   The Defendant generally asserted that she was entitled to secured documentation relevant to the Plaintiff’s past medical history and any and all documents pertaining to the Plaintiff’s past medical care and treatment in order to ascertain whether any of the injuries alleged by the Plaintiff existed prior to the accident and/or whether or not the Plaintiff was involved in any other prior incidents as a result of which he sustained personal injuries.  

The Plaintiff acknowledged that he was involved in prior motor vehicle accidents in 1991, 1993, and 1998.  However, the Plaintiff also stated that, for years before the subject collision, he worked as a personal trainer and ran multiple marathons, along with ultramarathons of greater than 50 miles every year.   The Plaintiff also described during his discovery responses that any prior treatment he had in the mid-1980s as well as in the 1990s were for unrelated conditions that had no bearing on the issues presented following the subject accident.  

The Plaintiff additionally asserted that the Defendant’s request for medical records and the files of the automobile insurance carriers relative to the Plaintiff’s 1991, 1993, and 1998 accidents were "fishing expeditions." 

Judge Terrence R. Nealon
Lackawanna County
In his Opinion, Judge Nealon set forth the current status of the discovery standards pursuant to Pa. R.C.P. 4003.1 and confirm that discovery is to be liberally permitted with respect to any matters that were not privileged, and which were relevant to the case being tried.   The court also noted that any doubts regarding relevance should be resolved in favoring of allowing the requested discovery.  

However, Judge Nealon also stated that it is the responsibility of the trial court to oversee discovery between the parties and to determine, within the court’s broad discretion, any appropriate measures to ensure adequate and prompt discovery of matters allowed by the Pennsylvania Rules of Civil Procedure.   The court reaffirmed the general rule that, while discovery should be liberally permitted, discovery requests must also be reasonable.  Judge Nealon noted that the courts of Pennsylvania have repeatedly held that trial courts can prohibit the discovery of matters which would amount to a fishing expedition.  

Judge Nealon emphasized that while the courts have repeatedly indicated that, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’”   See Bandru at p. 6.  

Applying this law to the case before him, Judge Nealon ruled that some of the information requested by the defense was indeed discoverable and other information was not.  As such, the matter before the court was granted in part and denied in part.  

Anyone wishing to review a copy of this detailed Order issued by Judge Nealon may contact me at