Wednesday, November 25, 2015


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

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  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

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

, 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


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.