Thursday, July 30, 2015

Article Celebrates Top 10 Decisions From 25 Years of Bad Faith Law

Here's a LINK to a recent July 7, 2015 article from The Legal Intelligencer by Richard L. McMonigle, Jr. and Brian M. Shay, both with Post & Schell.  The article, which celebrates the 25th anniversary of the passing of the Bad Faith Statute, is entitled "The Top 10 Decisions From 25 Years of Bad-Faith Law."

If you are not able to access the article online, let me know at and I can email you a copy.

Tuesday, July 28, 2015

Presented On Post-Koken Issues At 2015 Pennsylvania Conference of State Trial Judges in Hershey, PA


Last Friday presented an update on the current status of Pennsylvania automobile accident law to an audience of trial court judges from around the Commonwealth of Pennsylvania at the July 2015 Pennsylvania Conference of State Trial Judges in Hershey, PA.   Also on the panel was Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer as well as the course coordinator and co-presenter, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas.

I focused my part of the presentation on the current status of issue of severance vs. consolidation of Post-Koken cases involving Bad Faith claims, as well as on general Post-Koken discovery issues.  I also provided an update on Facebook Discovery decisions and decisions pertaining to claims for punitive damages in auto accident cases involving cell phone use by defendant drivers.

 Many of these topics will also be covered at the upcoming Tort Talk Expo 2015 CLE set for September 24, 2015 at the Mohegan Sun Casino in Wilkes-Barre, PA.  For more information on that CLE and Cocktail Reception, along with registration information, please go to and see the LINKS in the upper right hand corner of the blog.

Monday, July 27, 2015

Judge Minora of Lackawanna County Denies Motion for Reconsideration in Medical Malpractice Case

In a recent decision in the case of Rarrick v. Silbert, No. 2002-CV-4951 (C.P. Lacka. Co. June 23, 2015 Minora, J.), Judge Carmen D. Minora, of the Lackawanna County Court of Common Pleas, denied a Defendant’s Motion for Reconsideration of his previously denial of the Defendant’s Motion for Summary Judgment in a medical malpractice case against a psychiatrist and another Defendant entity in a case involving allegations that the Defendants failed to take appropriate steps to avoid a situation with an emotionally unstable individual from escalating into a hostage-taken event for the Plaintiff and her family members that had to be defused by police intervention.  

Judge Minora laid out the standard of review for Motions to Reconsideration and found that the Defendant’s motion had been timely filed.

Judge Minora rejected the defense contention that, since the Court found in its previous decision in the matter that there was no common law duty owed to the Plaintiff, there could be no valid claim by the Plaintiff.   To the contrary, Judge Minora found that the Mental Health Procedures Act created a statutory duty of care owed to the Plaintiff that allowed the claim to proceed. 

The Court also rejected the defense argument that the Plaintiff failed to produce expert report as required by Pennsylvania law to move forward on the claims presented.   In so ruling, Judge Minora found that this case fell within those types of cases where the alleged negligence and/or the alleged lack of skill and/or the alleged lack of due care averred was so obvious as to be within the realm of a layperson’s normal understanding based upon the ordinary experience and comprehension such that expert testimony is not required.    

As such, the court denied the Defendants’ Motion for Reconsideration.  

Anyone desiring a copy of this decision may contact me at

Friday, July 24, 2015

Judge Nealon Reviews the Law On Admissibility of Prior Convictions

In his recent decision in the breach of contract case of Clark v. GEICO, 12 CV 1278 (C.P. Lacka. Co. July 8, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a defense motion in limine that raised issues regarding the admissibility of crimini falsi evidence against the Plaintiff under Pa.R.E. 609 and evidence of prior bad acts or crimes by the Plaintiff under Pa.R.E. 404(b).

In this matter, the Plaintiff made a claim under a GEICO auto policy following a loss of his vehicle by fire.  GEICO denied the claim on the grounds that the policy had been declared null and void back to its inception due to material misrepresentations by the Plaintiff during the application process.

Judge Terrence R. Nealon
Lackawanna County
GEICO's motion in limine centered around its desire to introduce evidence of the Plaintiff's prior convictions for receiving stolen property, theft by deception or false statement, DUI, and driving without a license and financial responsibility.  Relying on the above-noted Pennsylvania Rules of Evidence, GEICO sought to introduce the evidence at issue in an effort to impeach the Plaintiff's credibility and to demonstrate a motive on the part of the Plaintiff to deceive the GEICO insurance agent in an effort to obtain personal automobile insurance on a vehicle that the Plaintiff was allegedly actually using for commercial purposes.

The Plaintiff countered with an argument that the theft and receiving stolen property charges were older than ten years and not admissible under the applicable test, and that the DUI, driving without a license and financial responsibility charges were not crimini falsi crimes.  The Plaintiff also generally argued that the probative value of the evidence at issue was outweighed by the danger of prejudice and the potential confusing of the issues presented.

After applying the facts to the relevant case law, the court ruled that evidence of the Plaintiff's convictions for theft as well as one of the two receiving stolen property charges would be allowed.

As for the DUI and other driving violations noted, GEICO was not offering such evidence as crimini falsi evidence but rather under Pa.R.E. 404(b) to prove motive on the part of the Plaintiff to deceive the carrier when the Plaintiff allegedly gave an incorrect driver's license number during the application process.

Judge Nealon crafted a remedy by allowing GEICO to show that the Plaintiff's license had been suspended for unspecified reasons.  The Court felt that this benign reference would still enable GEICO to argue the Plaintiff's motive to deceive the carrier when the Plaintiff allegedly provided a false driver's license number during the application process.

This Clark v. GEICO decision provides a thorough recitation of the current status of Pennsylvania evidentiary law on the issue of the admissibility of evidence of a party's prior criminal convictions.

Anyone wishing to review a copy of the same may contact me at

POOR DOGGY: Judge Zulick Reviews Issues in Veterinary Malpractice Case

In his recent decision in the case of Purpura v. Bartin Heights Veterinary Hospital, _____ (C.P. Monroe April 30, 2015 Zulick, J), Judge Arthur Zulick of the Monroe County Court of Common Pleas addressed several issues raised by way of Preliminary Objections against a Plaintiff’s veterinary malpractice action.  

The case involved alleged  malpractice in the treatment of the Plaintiff’s dog.   The Plaintiff alleged that the veterinarian incorrectly diagnosed the dog’s condition and subjected the dog to surgeries that caused further harm.  

The court granted the Defendant’s Preliminary Objections to the Plaintiff’s demand for punitive damages.   Judge Zulick noted that the Plaintiff’s Complaint, which alleged negligence and negligence supervision in training, contained no allegations that the Defendants’ actions were intentional, reckless, or malicious.  As such, the court sustained this objection.  

In addition to addressing other issues, the court also sustained the Defendants’ objections to the Plaintiff’s claims relative to the dog’s alleged severe physical pain as a result of the alleged malpractice.   In so ruling, Judge Zulick noted that, under Pennsylvania law, dogs were considered personal property.  

Judge Arthur Zulick
Monroe County
Judge Zulick also noted that Pennsylvania case law held that, under no circumstances, could there be any recovery for a loss of companionship due to an animal’s death.  

The court also noted that claims for pain and suffering of an animal were not recognized under Pennsylvania law.

Accordingly, the court struck the claims relative to the dog’s alleged severe pain.  

Judge Zulick also sustained Defendants’ objections regarding Plaintiffs’ calculation for compensatory damages.  The court found that the Complaint was not sufficiently specific enough in this regard as the Plaintiff failed to set forth the alleged fair market value of the dog at the time of injury and/or to itemize the cost of the veterinary treatment to remedy the alleged injury caused by the alleged malpractice.  

Judge Zulick noted that, under Pennsylvania law, if the cost of that treatment, including future expenses, exceeded the dog’s fair market value, the law required that the damages would be limited to the fair market value of the dog.

Anyone wishing to review a copy of this decision may contact me at

Wednesday, July 22, 2015

Supreme Court Addresses Ability of Insured To Settle Claim Itself When Being Defended Under Reservation of Rights By Liability Carrier

In the case of Babcock & Wilcox Co. v. American Nuclear Insurers & Mutual Atomic Energy Liability Underwriters, 2 WAP 2014 (Pa. July 21, 2015)(Maj. Op. by Baer, J.)(Concurring and Dissenting Op. by Eakin, J.), the Pennsylvania Supreme Court addressed the issue of first impression of whether an insured forfeits insurance coverage by settling a tort claim without the consent of its insurer, when the insurer defends the insured subject to a reservation of rights, and asserts that the claims may not be covered by the policy.

The underlying facts involved an insurance carrier that refused to settle a class action claim against its insureds.  The carrier believed in a strong chance for a defense verdict. 

The insured was not of the same opinion and went ahead and negotiated a settlement of the underlying matter with the class action plaintiffs.

The insureds then pursued a reimbursement of the settlement amount paid from the its liability carrier who refused to settle the matter.

After a jury trial on the matter, the jury found that the settlement brokered by the insured was fair and reasonable.

The Superior Court had ruled that an insured could only settle a claim that was being defended under a reservation of rights by the insurer if the insured could demonstrate the insurance company was acting in bad faith.

The Supreme Court reversed and held that an insured does not have to demonstrate bad faith in reservation of rights cases order to settle certain claims without its insurance company’s consent. 

In so ruling the Pennsylvania Supreme Court reinstated an $80 million settlement in personal injury actions against a nuclear facility owner.

The Babcock Supreme Court adopted the standard that was employed by the Allegheny County trial in the case, which found that the insured’s settlement of the case was “‘fair and reasonable from the perspective of a reasonably prudent person in the same position of [insureds] and in light of the totality of the circumstances.’”

The Supreme Court stated that this was the “standard which we adopt herein as the proper standard to apply in a reservation of rights case where an insured settles following the insurers’ refusal to consent to settlement.”  

Anyone wishing to review this Babcock Majority Opinion may click this LINK.

The Concurring and Dissenting Opinion may be viewed HERE.    

Sources:  I send thanks to Don Eodice of Eodice Consulting for bringing this decision to my attention. 

See also, Article: "High Court Allows Insureds to Settle Without Insurer Consent," by Gina Passarella of The Legal Intelligencer (July 22, 2015).  

Summary Judgment Entered Against Trip and Fall Plaintiff Who Fell Walking Backwards While Not Looking Back

In the case of Meckel v. Lehigh Valley Health Network, PICS Case No. 15-0995 (C.P. Lehigh Co. April 23, 2015 Reichley, J.), the court granted summary judgment to the defendant possessor of land in a premises liability action where the plaintiff alleged that she was injured after she fell while walking backwards out of the defendant's office and fell.

The Plaintiff was pulling another person in a wheelchair as she walked backwards out of the office.  While walking backwards through the door, and not looking back while she was doing so, the plaintiff allegedly struck a large, wheeled trash can located just outside the door.  The plaintiff fell and was allegedly injured.

The court in this matter pointed to the well-settled rule in premises liability cases that it is the duty of a person to look where they are walking and to see that which is obvious.

The court also noted that there are numerous decisions holding that summary judgment is warranted and appropriate where a person fails to look back when walking backwards.

Summary judgment was granted in this Meckel case as well as there was no genuine issue of fact where the plaintiff did not look back at the time she was walking backwards out of the defendant's office.  As such, the plaintiff was found to be precluded from recovering as a matter of law and the defendant's motion for summary judgment was granted.

Anyone wishing to review a copy of this Meckel decision may contact me at

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

Wednesday, July 15, 2015

What Goes Around, Comes Around: Defendants Entitled to Discovery of Finances of Professional Expert Witnesses for Plaintiffs

Proving that the Cooper v. Schoffstall rule that a party may discover information on the litigation-related activity and compensation earned by a professional witness also applies to expert witnesses retained by Plaintiffs, Judge Patricia E. Coonahan of the Montgomery County Court of Common Pleas granted a Defendant's motion to compel in this regard in the case of Gaffney v. Cohen, No. 2012-15440 (C.P. Montg. Co. June 22, 2015 Coonahan, J.).

The Gaffney decision is by Order only.  The court ruled that the Defendant could proceed by way of a deposition by written interrogatories to gather information on how much the Plaintiff's expert was being paid for his services in the case at hand, as well as on a variety of other financial bias topics dating back three years.

Notably, the court allowed such interrogatories to be submitted not only to the expert the Plaintiff listed as a trial witness but also to those other experts who offered opinions upon which the trial expert relied.

Anyone wishing to review a copy of this Order may contact me at

I send thanks to the prevailing defense attorney Anthony Damiano from Exton, PA for providing me with a copy of this decision.

Quoted in a Recent Article in The Legal Intelligencer on the Impact of Obamacare On the Defense of Medical Expenses Claims in Civil Litigation Matters

Here is a LINK to a recent July 2, 2015 Legal Intelligencer article by Max Mitchell entitled "Can Affordable Care Act Ruling Help the Defense Bar?"

The article outlines the debate on the possible effect of the United States Supreme Court's ruling upholding the validity of Obamacare upon the ability of defense counsel in civil litigation matters to attack claims for recoveries for future medical expenses by asserting that the Plaintiff may have health insurance pursuant to Obamacare.

If you are unable to access the article online, please let me know at and I will email you a copy.

Monday, July 13, 2015

Another UIM Case Defeated By Collateral Estoppel Doctrine

In a recent Post-Koken collateral estoppel decision of note, Judge David Williamson of the Monroe County Court of Common Pleas ruled in the case of DeHoyos v. GEICO, No. 10532-CV-2013 (C.P. Monroe Co. April 20, 2015 Willamson, J.) that a Plaintiff was barred from pursuing a UIM claim where the award the Plaintiff received from the third party tortfeasor after an application of a high/low agreement to the jury's verdict was less than the tortfeasor's liability limits.

In this matter, the tortfeasor's liability limits were $500,000.  The jury awarded $581,000 at trial but that verdict was molded downward to $450,000 pursuant to the high/low agreement entered into by the parties prior to the entry of the verdict.

Applying the language of the GEICO policy, as well as Pennsylvania law, the court noted that there could be no claim for UIM coverage when the amount of damages the plaintiff was legally entitled to recover from the tortfeasor did not exceed the available liability policy limits covering the tortfeasor.

Judge David J. Williamson
Monroe County
The court rejected the argument by the Plaintiff that the amount of the jury's original verdict that was entered  constituted the actual award to be considered with respect to the collateral estoppel issue.   Judge Williamson instead viewed the high/low agreement as a settlement agreement that placed limits of a maximum and a minimum for potential awards by the jury.  Accordingly, the high/low agreement was found to be a valid and enforceable contract that capped the plaintiff's recovery at a number below the available liability limits.  Thus, the actual award for collateral estoppel analysis in this matter was the high parameter of the high/low agreement.

Since the high parameter was less than the tortfeasor's liability limits, the court found no legal basis for the plaintiff to pursue the companion UIM claim.  As such, the carrier's motion for partial summary judgment was granted.

Anyone wishing to review a copy of this decision, may contact me at

To review other Tort Talk blog posts on similar collateral estoppel issues, click HERE.

Friday, July 10, 2015

Will You Please Consider Voting For Tort Talk?

I received an email from The Expert Institute ( advising that they were running a contest whereby readers could nominate a blog for their Best Legal Blog Competition.

If you deem Tort Talk worthy and are willing to take a few seconds to submit a vote, here is the LINK to do so.

Thanks for reading Tort Talk and thanks for you support of the Blog.

Eastern District Federal Court Remands UIM Claim Back to State Court

As also already reported in The Legal Intelligencer in a July 9, 2015 article by Gina Passarella, in a recent July 8, 2015 detailed Order, the Eastern Federal District Court of Pennsylvania remanded a removed Post-Koken case back to Delaware County in the matter of Kennedy v. Allstate, No. 2:15-CV-02221-TON (E.D.Pa. July 8, 2015 O'Neill, J.).

The Plaintiff originally filed in Delaware County in this UIM claim and asserted UTPCPL claims and negligence claims against Allstate as a company as well as several Pennsylvania resident claims adjusters for Allstate.

Allstate removed the matter to federal court, asserting a fraudulent joinder and the lack of any colorable claims under Pennsylvania law.

There was no dispute that Allstate was an Illinois resident and that the three adjuster Defendants and the Plaintiff were Pennsylvania residents.  There was also no dispute that the amount in controversy element was satisfied.

After reviewing the applicable law on the issues raised, and after finding that the Plaintiff had stated colorable claims against the non-diverse claims adjuster defendants, the court remanded the case back to state court in Delaware County.

The court so ruled despite noting a lack of concrete Pennsylvania state law recognizing the validity of a negligence claim against a claims adjuster by an insured relative to the handling of the insured's claims (i.e., is there a duty of care owed by an adjuster to an insured?). 

The court in Kennedy believed that, since there was a "possibility" that the Pennsylvania Supreme Court could someday rule that a claims adjuster owes a duty to an insured and therefore could be the subject of a negligence cause of action, the defendants in this matter had failed to meet their heavy burden under the law of attempting to show that there was no colorable claim and/or a fraudulent joinder of claims in an effort to defeat the diversity of citizenship necessary for federal court jurisdiction.

The court in Kennedy went to great lengths to clearly state that it was not recognizing such a negligence cause of action against claims representatives.  Rather, the court was more simply noting that, since Pennsylvania law in this regard was unsettled, it could not rule that the Plaintiff had failed to state a colorable claim under the motion to remand standard of review.

The court also addressed gist of the action and statute of limitations issues relative to the negligence claim in a manner that favored the Plaintiff's position.

The Plaintiff's UTPCPL claims were also found by the court to be colorable claims that equally served to support the granting of the motion to remand.

Anyone wishing to review a copy of this Kennedy v. Allstate decision may contact me at

I send thanks to the prevailing Plaintiff's Attorney Ryan Curran of the Curran Firm in Media, PA for bringing this case to my attention.

Federal Middle District Judge Conaboy Tackles Pre-Trial Motions in Bad Faith UIM Matter

In his recent post-Koken decision addressing numerous Motions In Limine filed by both parties in a UIM/Bad Faith case in the matter of Clemens v. New York Central Mutual Fire Insurance Company, No. 3:13-cv-2447 (M.D. Pa. June 15, 2015 Conaboy, J.), Judge Richard P. Conaboy of the Federal Middle District Court of Pennsylvania issued a number of decisions of note which are set forth below.

In the dispute over whether Pennsylvania law or New York law should apply in a case where the Defendant is a New York company, the insured was a New York resident, the insurance contract was delivered in New York, but where the accident occurred in Pennsylvania and the injured party resided in Pennsylvania at the time of the accident, the Court ruled that, due to the significant state interest to protect its resident insureds, Pennsylvania’s interest in the outcome of this lawsuit was superior to that of New York such that Pennsylvania law would be applied.  

On a separate issue, Judge Conaboy ruled that, since the New York insurance company Defendant was not licensed to do business in the Commonwealth of Pennsylvania and did not write insurance contracts in Pennsylvania, the Defendant’s Motion to preclude references to Pennsylvania insurance regulations and the Unfair Insurance Practices Act was granted.

In this bad faith action, the Court denied the Defendant’s Motion to Preclude Plaintiffs from introducing evidence of insurance reserves during trial.  The Court accepted the Plaintiff’s argument that the amount set aside in reserves by the carrier necessarily reflected the company’s assessment of the potential worth of the claim and, to the extent the reserves were different from the amount offered in settlement, such information was germane to an analysis of whether or not the company acted in bad faith in pre-trial settlement negotiations.   Judge Conaboy did also noted that the Defendant would be able to produce testimony explaining the difference between its reserve and its settlement offer in this case if the Defendant deemed that necessary.  

In another ruling, the Court granted the Defendant’s Motion In Limine regarding the relevant timeframe to be considered by the jury with respect to any bad faith allegations.  In this regard, the Court agreed with the defense position that bad faith may not be predicated on an insurance company’s actions or lack of actions before being notified of a claim.   The Court noted that the Plaintiff’s attorney’s previous reference to a “potential… claim” was insufficient to trigger any duty on the part of the Defendant carrier to act as of the time of that statement in a letter from Plaintiff's attorney.

However, the Court noted that the law did allow for the introduction of evidence of an insured’s alleged bad faith during the pendency of the underlying lawsuit involving the injury claim.   As such, Judge Conaboy allowed evidence of alleged bad faith conduct to include the time period that the underlying personal injury claim was pending and up to the time that underlying case was settled.  

The Court granted the Defendant’s Motion seeking to preclude the Plaintiff from introducing evidence regarding the existence or the amount of any settlement offers the Defendant made during the course of the underlying matter.  

The Court also granted the Defendant insurance company’s Motion to preclude the Plaintiff from introducing into evidence claims by other nonparties against the same insurance company in other unrelated matters.  

Judge Richard P. Conaboy
Federal Middle District of PA
Judge Conaboy denied the Defendant’s Motion to preclude the Plaintiff’s expert from testifying at trial.  The court rejected the defense argument that the bad faith claim was not complex and that jurors did not require the benefit of any specialized knowledge in order to evaluate the bad faith claim presented.   Judge Conaboy denied this defense motion, noting his belief that an expert’s testimony could be helpful to the jury in their determination of whether or not the Defendant insurance company acted in bad faith towards the Plaintiff.   Accordingly, the Plaintiff’s expert was allowed to testify regarding industries standings and claims handling practices.  

The Court did granted the Defendant’s separate motion to preclude Plaintiffs’ attorneys from testifying during the course of the trial.  In ruling in this regard, the Court noted that, typically, a law firm that did not participate in the underlying matter, which gave rise to the alleged bad faith claim was also employed by the Plaintiff’s attorney from the underlying matter to prosecute the bad faith claims.   The Court noted that this practice avoids the confusion inherent and simultaneously having a Plaintiff’s attorney act as both a witness and an advocate.   Judge Conaboy noted the courts' “strong disinclination to permit Plaintiffs’ attorneys to render testimony in this matter and its expectation that counsel for both parties will be able to stipulate to the authenticity of Plaintiffs’ proposed documentary evidence.”

The Court granted Plaintiff’s Motion In Limine to preclude the Defendant from introducing evidence regarding the use of seat belts, i.e., that the injured party Plaintiff was not wearing a seat belt at the time of the accident.  Judge Conaboy noted that, under 75 Pa. C.S.A. §4581, and Pennsylvania law, a violation of the seat belt statute in Pennsylvania may not be used as evidence in the trial of a civil action.  

Judge Conaboy also noted that, should the Plaintiff move forward on an allegation of excess delay on the part of the Defendants as constituting bad faith, the Defendants would be allowed to introduce evidence regarding the amounts the Plaintiff demanded in settlement during negotiations.   In so ruling, the Court referred to F.R.E. 408(b) which permits the introduction of evidence regarding settlement discussions to “negate a contention of undue delay.”   The Court held a ruling on the Plaintiff’s motion in this regard in abeyance pending the presentation of evidence on these issues at trial. 

The Court also denied the Plaintiff ‘s Motion to preclude testimony or other evidence at trial pertaining to the Plaintiff’s conduct or the Plaintiff’s conduct of Plaintiff’s counsel.  The defense argued in this regard that any alleged actions by the Plaintiff or Plaintiff’s counsel that allegedly unreasonably delayed the evaluation of a UIM claim are relevant to the question of whether an insurance company acted in bad faith in resolving such a claim.   As such, the Court denied the Plaintiff’s Motion in this regard.  

The Court also granted, in part, the Defendant’s Motion In Limine to preclude the Plaintiff’s from introducing any evidence concerning any federal court mediation that was completed in the matter.  The Court limited its decision to the conduct of the parties in the presence of the mediator only.   As such, any negotiations that preceded or post-dated the mediation session were found to be relevant to the question of whether or not the Defendant alleged unreasonably delayed the negotiation of the UIM claim and thereby allegedly bargaining bad faith with its insured such that this type of information was deemed to be potentially admissible at trial.  


I send thanks to Attorney Michael Pisanchyn of the Pisanchyn Law Firm in Scranton, PA for bringing this decision to my attention.


Anyone desiring a copy of this decision may contact me at  



Thursday, July 9, 2015

New Required Jury Instructions for Prospective and Selected Jurors


Here is a LINK to new required Jury Instructions issued by the Pennsylvania Supreme Court for "Prospective" and "Selected" jurors.

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.

Tuesday, July 7, 2015

Erie County Trial Court Severs and Stays UIM/Bad Faith Counterclaims in a Coverage Declaratory Judgment Action Filed by Carrier

In a recent Erie County Court of Common Pleas decision in the case of Erie Insurance Exchange v. Porter, No. 10327 -  2015 (C.P. Erie. Co. June 11, 2015 Cunningham, J.), Judge William R. Cunningham granted the carrier's request to sever and stay UIM and Bad Faith Claims from a Declaratory Judgment action on coverage issues filed by the carrier.

More specifically, the carrier started the litigation by filing a Declaratory Judgment action raising certain coverage issues for the carrier's consideration.  The injured party responded by filing counterclaims asserting claims for UIM benefits and Bad Faith damages.  The carrier filed Preliminary Objections seeking to sever and stay the UIM/Bad Faith counterclaims pending the resolution of the coverage issues. 

As stated, the court ruled in favor of the carrier and sustained the Preliminary Objections and severed and stayed the UIM/Bad Faith claims.

In his detailed Order, Judge Cunningham acknowledged the split of authority on this severance issue in the trial court and, in granting the severance and stay reasoned, in part, that to allow discovery to go forth on a bad faith claim that is combined with a UIM claim amounts to a "distinct advantage to the Plaintiff and a detriment to the insurance company."  By severing and staying the UIM/Bad Faith claims from the coverage action, the court believed that neither party would have an unfair advantage in resolving the underlying coverage issues presented.

As the issue was not before the court, Judge Cunningham did not address the separate, more specific issue of severing the UIM/Bad Faith claims and a stay of Bad Faith discovery.

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen Mioduszewski Bordonaro Wagner & Sinnott, LLC for bringing this case to my attention.

Anyone wishing to review Judge Cunningham's detailed Order in the Erie Ins. v. Porter case may click this LINK.

If you wish to gather more info on other Pennsylvania trial court Opinions on this issue, please consider going to the Tort Talk Blog at, and scrolling down the right hand column to the Link to the POST-KOKEN SCORECARD (Click on the date noted to go to that section of the Blog).

Monday, July 6, 2015

Justice Correale Stevens Plans to Return to Superior Court Once His Supreme Court Appointment Ends

Justice Correale F. Stevens

The Legal Intelligencer has reported that Pennsylvania Supreme Court Justice Correale F. Stevens will return to the Pennsylvania Superior Court as a senior judge once his interim appointment to the Supreme Court expires in December, 2015.

The article also noted that, with a number of current Superior Court Judges running for Supreme Court, as many as 4 seats on the Superior Court's bench could open up after the November election.

Source:  Article: "Stevens to Rejoin Superior Court, Allen to Retire" by Lizzie McLellan of The Legal Intelligencer (June 30, 2015).

Thursday, July 2, 2015

Judge Minora Reviews Current Status of At Will Employment Law

Facing an Employment At Will situation?  Click HERE for a thorough Opinion by Judge Carmen D. Minora in the case of Krutulis v. Community Medical Center, No. 2009 - CV - 1474 (C.P. Lacka. Co. June 4, 2015 Minora, J.), for the current status of Pennsylvania law on this issue (including the public policy exception to the rule).

In this matter, Judge Minora granted summary judgment in favor of an employer-hospital and against an employee-nurse-plaintiff relative to the discharge of the nurse from her employment.

In the end, the law remains that an at-will employee may be discharged for any reason or no reason.

Wednesday, July 1, 2015

Registration Open for Tort Talk Expo 2015


Thursday, September 24, 2015

Mohegan Sun Casino and Hotel

Wilkes-Barre, PA 

(3 Substantive, 1 Ethics Credit)

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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Judge Mariani Reviews Propriety Award of Meds and Wages in a Premises Liability Personal Injury Case

In Wright v. Cacciutti, 3:12-cv-1682 (M.D. Pa. June 11, 2015 Mariani, J.), Judge Robert D. Mariani ruled on post-trial motions in a premises liability personal injury case and covered several important damages issues.

The court ruled that, under the Moorehead line of cases, the jury's award for past and future medical expenses could not be upheld given that the plaintiff had failed to establish the reasonable value of such expenses at trial.  The court noted that the plaintiff failed to offer either evidence of the actual cost of any past medical expenses, or proof of the reasonableness of those expenses.   As such, the jury's award in this regard was rejected as being impermissibly based upon pure speculation.

This Wright decision is also notable for the court's striking of the jury's award of damages for future medical care.  In this matter, the plaintiff did not introduce any evidence of the cost of future medical treatment, or expert testimony as to the necessity of any future medical care.  Judge Mariani noted that the issue of whether or not future medical care is necessary under the circumstances requires expert testimony in order to present this type of claim to a jury.  

Judge Mariani also upheld the settled rule that a plaintiff's own testimony is sufficient to support a claim for lost income, and may be used by the jury to infer an amount of future lost income.  

Anyone wishing to review this decision by Judge Mariani, may click this LINK.

I send thanks to Attorney Jim Beck of the Philadelphia office of Reed Smith.  Attorney Beck is the creator of the excellent Drug and Device Law Blog which can be viewed HERE.