Friday, October 30, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Jenkins Dissenting Opinion in Truax can be viewed Here.


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

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

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

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

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

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

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



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

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

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

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

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

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

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

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


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

Wednesday, October 28, 2015

Judge Nealon Allows NIED Claim To Proceed in Med Mal Case


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

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

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

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

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

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

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

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


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


 
 

Monday, October 26, 2015

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


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

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

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


Source of imagewww.virginiaappellatelaw.com

Another Trial Court Crafts Another Remedy for Parameters of Neuropsychological IMEs

The Far Side
Gary Larson


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

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

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

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

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

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

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


Wednesday, October 21, 2015

Superior Court Affirms Analysis for Motion For Remittitur

Some Tort Talkers may recall that the Montgomery Court of Common Pleas decision in the case of Carassai v. Echelmeier, No. 2007-CV-04081 (C.P. Mont. Co. Dec. 8, 2014, Rogers, J.), outlining the standard of review for a motion for remittitur, was summarized in a Tort Talk post at this LINK.  In that case, the jury had awarded a personal injury plaintiff $1 million dollars.

UPDATE:  The Pennsylvania Superior Court has affirmed the trial court's decision in a non-precedential opinion at Carassai v. Echelmeier, 2993 EDA 2014 (Pa.Super. Oct. 16, 2015 Bowes, Mundy, and Fitzgerald, J.)(Mem. Op. by Bowes, J.).  That decision, which outlines the current status of the law on such motions, can be reviewed HERE.

I send thanks to Attorney Charles W. Campbell, a solo practitioner in Norristown, PA for bringing this update to my attention.

Tuesday, October 20, 2015

Allegations of Negligence Based Upon U-Turn Addressed

In his recent decision in the case of Williams v. Beavers, No. 13-CV-1825 (C.P. Lacka. Co. Sept. 9, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment in a case involving a Defendant who allegedly made a negligent U-turn.  

The Defendants filed a Motion for Summary Judgment arguing that the Defendant driver had not made an illegal U-turn.   The court reviewed the motion under the U-turn law set forth at 75 Pa. C.S. §3332(a).  

Judge Nealon noted that there was sparse law on the issues presented.  The court did note that the mere fact of making U-turn does not constitute negligence per se under Pennsylvania law.   However, the law does require a motorist making a U-turn to first assure that the maneuver can be completed safely without interfering with any approaching traffic.   Moreover, other motorists are not required to anticipate that another driver will make a U-turn into their path of travel.  

After reviewing the record before the court, Judge Nealon found that issues of fact were present such that the motion should be denied and the case allowed to proceed to a jury for a determination.  



Anyone wishing to review this Opinion by Judge Nealon may click this LINK.

Friday, October 16, 2015

Federal Court Addresses Personal Injury Claims in High School Football Context

 With the football season upon us, and interesting decision comes out of the United States District Court for the Western District of Pennsylvania in the form of Dorley v. South Fayette Township School District, No. 2:15-cv-00214 (W.D. Pa. Sept. 4, 2015 Hornak, J.).  

In this matter, the court addressed various Motions to Dismiss a personal injury claim arising out of injuries allegedly sustained at a local high school football training camp.

According to the Opinion, the Plaintiff, who was an incoming high school freshman, participated in a blocking drill with an upper classman and sustained injuries because of what the Plaintiff alleges was an unconstitutionally dangerous drill and the upper classman’s excessively, aggressive and tortious conduct during and after the drill.

Utilizing 42 U.S.C. §1983, the Plaintiff sued the school district and some of its football coaches, alleging federal and state constitutional claims. The Plaintiff also sued the involved upper classman and his parents under several state law tort claims.  

Ultimately, the federal court dismissed the federal claims in their entirety, but would leave for the Plaintiff to amend certain claims. Some of the state law claims were also dismissed.

The Court ruled that, should the Plaintiff decline to amend his Complaint on the federal claims, or such federal claims otherwise subsequently fail, the remaining state claims were to be remanded to the Allegheny County Court of Common Pleas.

In his Opinion, Judge Hornak addressed allegations pertaining to 14th Amendment Due Process claims and the application of the qualified Immunity Doctrine, school district liability claims, tort claim for battery, intention infliction of emotional distress, as well as negligence allegations. Also reviewed were claims of negligence and vicarious liability against the parent Defendants.  

  
I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers McDonnell for forwarding this interesting decision to my attention. 

 
Anyone wishing to review a copy of this decision may click this LINK.

Tuesday, October 13, 2015

Judge Williamson of Monroe County Again Rules in Favor of Severance and Stay of Bad Faith Post-Koken Claims

In his October 1, 2015 decision in the case of Brands v. Erie Ins. Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015 Willamson, J.), Judge Williamson issued another Opinion severing a Bad Faith claim from a UIM claim in a Post-Koken case, and also issued a stay order against any bad faith discovery pending the resolution of the UIM claim.

In severing the claims for trial, Judge Williamson reasoned, in part, that the UIM trial is a jury trial, while a bad faith trial is required to be a bench trial in state court. 

He also noted that severance for trial purposes is required as it would be confusing to the jury and prejudicial to the UIM carrier for bad faith testimony to be allowed during the UIM trial.  Judge Williamson stated that, if the cases were tried together, "[a] jury would hear evidence unrelated to what they will be deciding, and may be swayed by evidence the court considers in the bad faith claim."  Op. at p. 2.

Overall, Judge Williamson found "no compelling reason to hear these cases together."  Id.

In granting the motion to stay bad faith discovery, Judge Williamson followed his previous reasoning in the Hakim v. Erie Ins. Opinion, but did not cite to that decision.  Click this LINK to view the Tort Talk blog post on the Hakim case, which contains a Link to that Opinion as well.

In this Brands decision granting a stay of bad faith discovery, Judge Williamson noted that his decision was supported by the fact that bad faith discovery dispute would like arise, the resolution of which would be time-consuming and expensive and would delay the resolution of the UIM part of the claim.  The court also suggested that there was a chance that the bad faith claim would never come to fruition pending the results of the UIM claim.

Judge Williamson also cautioned that to allow bad faith discovery before the end of the UIM claim "could steer the negotiation process of settlement in an unfair manner."

The court also noted that a plaintiff's concern for a prompt and fair disposition of the bad faith claims following the resolution of the UIM claims could be handled by the court's control of discovery efforts and trial scheduling following the conclusion of the UIM case.

Accordingly, the court in Brands continued the trend in Monroe County of granting both requests to sever UIM and Bad Faith Post-Koken claims and staying Bad Faith discovery efforts pending the resolution of the UIM claim.

Anyone wishing to review the Brands decision by Judge Williamson may click this LINK.


I send thanks to Attorney Domenic Sbrocchi of the Bethlehem, PA law firm of King, Spry, Herman, Freund, & Faul for bringing this case to my attention.


Monday, October 12, 2015

CLE Booklet Created from Tort Talk Posts Available Online

Here is a LINK to a 218 page booklet I created over the Summer for a CLE program. 

Although the booklet is entitled "Auto Law Update," it really provides a general Civil Litigation Update as it covers other areas as well.  The booklet was derived primarily by cutting and pasting blog posts from Tort Talk over the past year.

Also included in the booklet are some sample Post-Koken jury instructions utilized by courts from around the Commonwealth.

The Post-Koken Scorecard and the Facebook Discovery Scorecard from the Tort Talk Blog are also included.

Please enjoy and Thanks for reading Tort Talk.

Friday, October 9, 2015

Liability of Landlord-Out-Of Possession In Premises Liability Matters





In his recent decision in the case of Mills v. Gubbio’s, LLC., No. 2013-CV-2940 (C.P. Lacka. Co. Oct. 2, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Defendant landlord’s Motion for Summary Judgment in a slip and fall case.  

This personal injury action arose out of an alleged slip and fall on an icy sidewalk.

According to the Opinion, the property owner/landlord out of possession filed a Motion for Summary Judgment on the grounds that he did not have a duty to maintain the sidewalk or remove ice and snow from the sidewalk.

The Opinion provides a detailed summary of the current status of the law pertaining to the liability of a landlord-out-of possession in premises liability matters.

The Opinion confirmed that it was undisputed between the parties that the out-of-possession landlord leased the entire property to two tenants. It was also confirmed in the Opinion that the terms of the written Release required that the first floor commercial tenant keep sidewalks free from snow and ice. Both tenants were noted to have also confirmed in discovery that the first floor commercial tenant was solely responsible for the removal of snow and ice from the sidewalk and that the commercial tenant had hired a third party to shovel and salt the sidewalks.

Based on these facts, the Court ruled that, since it was undisputed that the out-of-possession landlord did not retain control over the sidewalks or the common areas and given that the written Lease imposed exclusive responsibility upon the commercial tenant for the removal of snow and ice from the sidewalk areas, the Court found that the out-of-possession landlord did not owe a duty of care to the Plaintiff as a matter of law. Accordingly, the landlord’s Motion for Summary Judgment was granted.

Since the court granted summary judgment on the above issue, the Hills and Ridges Doctrine argument raised was not addressed.

 
Anyone wishing to review this Opinion by Judge Nealon may click this LINK.

Post-Koken and Facebook Discovery Scorecards Updated on Tort Talk

Both the Tort Talk Post-Koken Scorecard and the Tort Talk Facebook Discovery Scorecard have been updated with recent cases.  To view, click on the Scorecard titles in the previous sentence.

The Post-Koken Scorecard and the Facebook Discovery Scorecard are also always freely accessible by going to www.TortTalk.com and scrolling down the right hand column of the blog and clicking on the dates noted under "Post-Koken Scorecard" and "Facebook Discovery Scorecard."

Please forward to my attention a copy of any Orders or Opinions you may generate on Post-Koken or Facebook Discovery issues in order that these Scorecards may be continually updated for the benefit of all.

Thank you for reading Tort Talk.



Thursday, October 8, 2015

Judge Williamson Reverses Course and Chooses to Stay Bad Faith Discovery in Post-Koken Cases



In follow-up to yesterday's post on Judge Williamson's Monroe County Post-Koken decision in Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.), in which the court severed UIM and Bad Faith Claims but denied a request for a stay of bad faith discovery, it has been brought to my attention that Judge Williamson issued a discovery Order more recently in the same case on May 8, 2015 in which he reversed, in part, his prior decision.

Judge David J. Williamson
Monroe County
In his more recent May 8, 2015 decision, Judge Williamson noted that, in the previous March 18, 2015 decision he had granted the Plaintiffs' Motion to Compel but reserved ruling on the Plaintiffs' request for the production of the Erie Insurance claims manual pending an in camera review of privileged and confidential information.

The court's more recent May 8, 2015 outlines the court's review of the claims manual.

In his Opinion, Judge Williamson stated that "[t]he Erie Claims Manual is inherently a privileged and confidential document."  Op. at p. 1.

He also noted that while some sections of the Manual may be relevant to the Bad Faith portion of the claim, "[n]one of the sections appear relevant in the breach of contract claims."  Op. at p. 2.

Judge Williamson noted that, while some of the parts of the Claims Manual were relevant to the Bad Faith claims presented, the court was declining to order the release of those portions of the manual while the UIM claim was still pending.

In so ruling, Judge Williamson 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."  Op. at p. 2.

Judge Williamson supported his reversal of his prior decision by noting that evidence of the handling of claims is not relevant to the merit of the actual injury claim and that the release of the Claims Manual information would be prejudicial.  The court also noted that it would be improper to allow for the release of the confidential Claims Manual information where it was certainly possible that the Bad Faith claims would never come to fruition pending the results of the breach of contract claim.

The court also supported its decision by noting that the release of confidential and proprietary information would expose the carrier's thoughts and analysis  prior to the breach of contract claim being fully litigated and could be improperly utilized as a bargaining chip in settlement negotiation.

Moreover, the court noted that allowing this discovery would likely lead to more Bad Faith 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 breach of contract claims.

Judge Williamson noted that he felt "confident that without this ruling [to stay the bad faith discovery], this matter will continue in the discovery stage with a war of attrition through motions, rather than proceed to court."  This, the court noted, would "be a burden on the court's resources, and will serve to prejudice both litigants."  Op. at p. 3

Accordingly, Judge Williamson entered an Order vacating his prior decision and staying all discovery and action in the Bad Faith claim pending the resolution of the Breach of Contract claim.

Anyone wishing to review this Opinion by Judge Williamson, may click this LINK.

I send thanks to Attorney Domenic Sbrocchi of the Bethlehem, PA law firm of King, Spry, Herman, Freund, & Faul for bringing this case to my attention.  I also send thanks to Attorney Pete Speaker of the Harrisburg, PA law firm of Thomas, Thomas & Hafer for alerting me to this decision as well.



NOTE:  Judge Williamson issued another Opinion along the same lines more recently on October 1, 2015 in the case of Brands v. Erie Ins. Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015 Willamson, J.).  Look for a summary of, and a Link to, that decision here on Tort Talk next week.


Judge Williamson of Monroe County Again Rules in Favor of Severing Bad Faith Claim in Post-Koken Action, But Against a Stay of Bad Faith Discovery

Below is a summary of another Post-Koken decision discovered out of Monroe County by Judge David J. Williamson.

In its decision, from back in the Spring, in the case of Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.), Judge David J. Williamson granted the Defendant carrier’s Motion to Sever the bad faith and extra-contractual claims from the UIM claims, but denied the UIM carrier’s Motion to Stay Bad Faith Discovery.

In coming to his decision in this matter, which is consistent with other decisions out of Monroe County, Judge Williamson relied on Pa. R.C.P. 213(b), which provides the Court with discretion to sever cases.  

Referring to its own previous decision in the case of Orsulak v. Penn National, Judge Williamson again noted that “Evidence put forth in the bad faith claim for the court to consider would likely confuse the jury and its role in the proceedings.   Certain information disclosed for purposes of the bad faith claim could also prejudice the jury against [the Defendant].”   Citing Orsulak v. Penn National, No. 4255-CV-2011 (C.P. Monroe Co. Jan. 14, 2013, Williamson, J.). 

In this case of Hakim, Judge Williamson again ruled that he found that the UIM carrier Defendant in this case “would be prejudiced by joining the bad faith claims with the contractual claims during trial.  There may be information that is relevant to the bad faith claim that is not relevant to the contractual claims which would prejudice Defendant in the eyes of the jury.   There is no indication at this time that the need for judicial economy outweighs the prejudice.”   See Hakim at p. 11.  

As such, relying in part on his own prior decision in Orsulak, Judge Williamson granted the Motion to Sever the Bad Faith Claim.

However, as noted, Judge Williamson, relying upon the case of Gunn v. Automobile Insurance Company of Hartford, 971 A.2d 505 (Pa. Super. 2009), denied the UIM carrier’s Motion to Stay Discovery.   Judge Williamson also came to the same decision in his own previous Opinion in the case of Orsulak v. Penn National.   The Court ruled in this fashion because “staying all discovery with respect to the bad faith claim would cause unnecessary delay and there were better measures the Court could take to avoid prejudice during the discovery process once prejudice was shown.”  See Hakim at p. 12 [other citations omitted].  


Anyone wishing to review a copy of Judge Williamson's decision in Hakim may click this LINK.

Monday, October 5, 2015

Recent Post-Koken Discovery Decisions Out of Lackawanna County

Updating on Post-Koken discovery matters, it is noted that there were no two recent Orders out of the Lackawanna County Court of Common Pleas in which the depositions of claims representatives were compelled by Court Order issued by a Special Trial Master.

While these decisions are not precedential, they do provide insight on how Special Trial Master Burke will handle such issues. 

The cases are Culkin v. Sciandra and Liberty Mutual, and Safeco, No. 2559-Civil-2014 (C.P. Lacka. Co. May 4, 2015 Burke, Special Trial Master); and

Carlson v. Scarantino and First Liberty Insurance, No. 2014-Civil-7786 (C.P. Lacka. Co. Aug. 27, 2015 Burke, Special Trial Master).

In the Carlson decision, the Special Trial Master for discovery motions court in Lackawanna County ruled that the scope of the deposition of the claims representative would be limited to questions pertaining to the claims representative’s objective knowledge of the fact pertaining to the accident and the Plaintiff’s alleged injuries. The Plaintiff was precluded from deposing the claims representative as to her mental impressions, conclusions, or opinions regarding the value or merit of the claims or defenses, or regarding strategy or tactics. The Plaintiff is also precluded from deposing the claims adjuster regarding the process and procedures by which the insurance company handled and is handling the Plaintiff’s UIM claim as well as other claims.

No such specific restrictions are seen in the Order entered in the Culkin case.

Anyone wishing to review a copy of these Orders, without any Opinions, may contact me at dancummins@comcast.net.
 

I send thanks to Attorney Neil O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of these Court Orders.

Thursday, October 1, 2015

Motion For Protective Order Granted to Protect Medically Infirm Deponent From Deposition

In his recent decision in the case of Cook v. Moses Taylor Hospital, No. 13-CV-1140 (C.P. Lacka. Co., Sept. 15, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a defense motion in a medical malpractice claim seeking to prohibit a deposition of a nurse on medical incapacity grounds and/or due to the neurological incapacity of the witness to complete a deposition as supported by medical documentation provided to the court.  

While the Court found that the information sought from the nurse witness met the standards for relevancy for discovery, the Court also noted that significant concerns were raised regarding the competency of the nurse to testify by deposition given the medical information provided to the Court regarding the nurse’s medical issues. 


Judge Terrence R. Nealon
Lackawanna County
The Court addressed the defense Motion for Protective Order under Rule 4012 and found that there were no reported Pennsylvania decisions on the point.  

After referring to some federal court decisions from within and without Pennsylvania, Judge Nealon exercised the broad discretion vested in him under Rule 4012 and ordered that the nurse would be required to submit to inquiries by written Interrogatories as opposed to a deposition.  
 
Judge Nealon indicated that he ruled in this fashion to prevent the exposure of a neurologically infirm and cognitively impaired deponent to the stress and anxiety of an uncertain deposition while still considering the right of the Plaintiff to exhaust her ability to obtain discoverable information to alternative means.  

 

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