Superior Court Upholds Waiver Form in Wrongful Death/Survival Action Claim

In its recent decision in the case of Valentino v. Philadelphia Triathlon, LLC, No. 3049 EDA 2013 (Pa. Super. Nov. 15, 2016)(en banc) (Op. by Olson, J.), the Pennsylvania Superior Court ruled that summary judgment was properly entered against a wrongful death claim based upon the decedent’s execution of a liability waiver.  

This matter arose out an incident during which the Plaintiff’s decedent participated in a triathlon in Philadelphia.  The decedent signed a waiver form when he signed up to participate in the event.  

During the event, the decedent never completed the swimming portion of the competition and his body was recovered from the Schuylkill River on the day after the incident.  

The decedent’s widow pursued wrongful death and survival claims.  

The trial court initially sustained Defendant’s Preliminary Objections, ruling that the Plaintiff had failed to plead reckless or intentional conduct by the Defendant.  

The trial court later granted summary judgment on the remaining claims, finding them to be barred by the liability waiver executed by the decedent.   On appeal, the Plaintiff challenged all of the trial court’s decisions.  

The Superior Court affirmed the trial court’s rulings in sustaining the Defendant’s Preliminary Objections to the Plaintiff’s claims of punitive damages.   The court noted that punitive damages are only proper for a Defendant who had a subjective appreciation of the risk of harm to the Plaintiff and acted, or failed to act, in conscious disregard of that risk.

Here, the court found that the Plaintiff’s Complaint merely alleged inadvertence, mistake, or error in planning and supervising the triathlon course.  

With respect to the trial court’s entry of summary judgment, the Superior Court found no genuine issues of material fact with regards to the decedent’s execution of the Waiver Agreement.   The court also rejected the Plaintiff’s contention that the Defendant’s alleged reckless or intentional conduct defeated the decedent’s waiver of liability.  In this regard, the Superior Court noted that the trial court had previously ruled that the Plaintiff had failed to assert viable reckless or intentional conduct claims.  

The Superior Court also rejected the Plaintiff’s argument that the decedent’s waiver did not waive the decedent’s separate wrongful death claim.   The court ruled that wrongful death claims, while belonging solely to a decedent’s heir, are still derived from the same conduct that caused the decedent’s death.  Accordingly, the liability waiver was found to also extend to the wrongful death claim because such action requires tortuous conduct and was therefore subject to the same substantive defenses, such as the decedent’s execution of a liability waiver as to the decedent’s own tort claim.  

Anyone wishing to review a copy of the Majority's decision may click this LINK.

 

Judge Kate Ford Elliott's Concurring and Dissenting Opinion can be viewed HERE.

 

 

For another Superior decisions previously entered in this same case, click this LINK.

 

To view other Tort Talk posts on cases involving Waiver of Liability Forms, click HERE

 

 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (December 6, 2016)

 

Plaintiff's Failure to Meet Six Month Notice Requirement in Action Against Governmental Agency Excused

In an unpublished Commonwealth Court decision written by Judge Joseph M. Cosgrove in the case of Dacey v. Luzerne County, PA, No. 156 C.D. 2016 (Pa. Cmwlth. Dec. 6, 2016 McCullough, Cosgrove, Pellegrini, J.J.), the Commonwealth Court reversed the trial court's sustaining of the defendant's Preliminary Objections in a trip and fall case filed against a governmental agency.

The trial court sustained the defendant's preliminary objections which asserted that the Plaintiff's failed to comply with the six month notice requirement under 42 Pa.C.S.A. Section 5522(a).

The appellate court noted that there was no dispute that the Plaintiff had failed to provide notice of the claim to the governmental agency within six months of the incident.

Judge Joseph  M. Cosgrove
Pennsylvania Commonwealth Court

However, the appellate court accepted the argument of the Plaintiff, who was a New Jersey resident, that she was unaware of the six month notice requirement and that ignorance of the law could be deemed a reasonable excuse in this context.  The court also found that there was no prejudice sustained by the defendant by the late notice.

As such the trial court's decision was reversed and the matter was remanded for further proceedings.

Anyone wishing to review this unpublished decision by the Commonwealth Court in the Dacey court may contact me at dancummins@comcast.net.


I send thanks to Attorney Jonathan Comitz of the Wilkes-Barre, PA office of Comitz Law Firm LLC for bringing this case to my attention.  Attorney Jeremy Weinstock of that office handled this matter.

Superior Court Rules that Attorney-Client Privilege Cannot Be Used as as Sword and a Shield

 

In recent split decision by the Superior Court in the case of Gregury v. Greguras, (Pa. Super. Nov. 22, 2016 Shogan, Ott, Strassburger, J.J.)(Op. by Strassburger, J.), the Pennsylvania Superior Court ruled that a litigant who asserts an attorney/client privilege during the course of discovery, thereby precluding discovery on a certain issue, may not later waive that privilege on the witness stand at trial.  

This decision has been reported as involving an apparent issue of first impression.   The case involved a dispute over a Will.  

The appeal arose from a trial court decision which denied a motion by the Plaintiff seeking to either secure a mistrial or, in the alternative, an extension of the discovery period, after the Defendant stated at trial that she would be waiving a privilege she previously asserted during the course of pre-trial discovery.

The Superior Court ruled that the “late waiver of privilege essentially amounts to trial by ambush, disallowing potentially relevant discovery and allowing undisclosed information to be presented at trial in direct contradiction to our long-held standard that privilege may not be used both as a sword and a shield.”  

The Superior Court noted that the trial court’s denial of the Plaintiff’s request for a mistrial or additional discovery made it impossible for the Plaintiff to fully cross-examine the Defendant on the issue presented.  

In the end, relying in part upon decisions from other states, the Pennsylvania Superior Court held that a party may not waive a privilege at trial which was previously asserted during the discovery of pre-trial process.  

 

Anyone who wishes to review the Majority Opinion in the case of Gregury, may click this LINK.

Judge Ott's Dissenting Opinion can be viewed HERE.

 

Source:  Article:  “Attorney-Client Privilege Can’t Be Waived When Asserted Pre-Trial,” by Max Mitchell.   Pennsylvania Law Weekly (December 6, 2016).

Class Two Insured Not Permitted to Stack UIM Limits Under Employer's Fleet Policy

In his recent decision in the case of Selective Insurance of South Carolina v. Koons-Gill, No. 13-CV-6415 (C.P. Lacka. Co. Dec. 14, 2016 Nealon, J.) Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision in this declaratory judgment action on the issue of whether an employee of ambulance service company, who was injured in a work-related accident while occupying her employer’s ambulance, may stack the underinsured motorists coverage limits for the six (6) ambulance vehicles that were insured under the employer’s commercial business automobile insurance policy.

After reviewing the matter, Judge Nealon ruled that, based upon the clear and unambiguous language of the employer’s policy as applied to the stipulated set of facts presented by the parties, the employee was found to be a “class two” insured who was not entitled to stack the UIM coverage limits for the six (6) ambulances that were insured under the employer’s commercial policy.  

Accordingly, the court entered a verdict in this declaratory judgment action finding that the UIM coverage limit governing the employer’s claim to be single UIM coverage limit applicable to the ambulance that the employee was occupying at the time of her injury.  

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

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

UPDATE:  This decision was affirmed on appeal in a non-precedential Opinion by the Pennsylvania Superior Court issued on February 13, 2018 under Superior Court Docket No. 163 MDA 210.  The Superior Court's non-precedential Opinion may be viewed HERE.

Rejection of UIM Coverage Form Found Invalid by Philadelphia County Court

In a recent decision out of the Philadelphia County Court of Common Pleas in the case of Bielec v. National Union Fire Ins. Co., 2016 WL 7157620 (C.P. Phila. Co. Dec. 5, 2016 Djerassi, J.), the court addressed the issue of whether a rejection of under-insured motorist ("UIM") coverage was valid where statutory language requirements were not followed under 75 Pa. C.S.A. § 1731 et seq. of the Motor Vehicle Financial Responsibility Law ("MVFRL").

The case also involves policy considerations concerning a plaintiff, who was an employee of defendant Verizon Communications, Inc., and that company's attempt to decline UIM benefits for its fleet of vehicles without notifying plaintiff.  The court noted that, without this notice, the plaintiff did not arrange for UIM coverage for instances when he was driving Verizon vehicles during work hours.

According to the Opinion, the plaintiff had an accident on the job while driving a Verizon truck and was struck by an automobile at a traffic light.  The plaintiff brought suit after he was precluded from asserting a UIM claim on Verizon's policy with defendant National Union Fire
Insurance Company.

The court found under a textual and policy analysis that Verizon's rejection of UIM coverage was void.  As such, summary judgment was granted in favor of the  plaintiff.
 

More specifically, the court found that Verizon's UIM rejection form deemed invalid because it did not comply with MVFRL in that several paragraph's in the form separated the UIM rejection statement from the authorized signature at bottom of form with one of the intervening
paragraphs purporting to reject UIM stacking as well.

The court also reasoned that even if the rejection form was valid, it would be rejected on public policy grounds because Verizon never told its employee that UIM coverage had been
rejected.  The court believed that an employer who fails to notify its employee that UIM coverage has been rejected is acting against public policy.  The court otherwise noted that Verizon's lack of notice undermined the MVFRL's policy to protect people from risk of injury caused by a negligent driver who lacks adequate insurance.

As stated, the court ultimately found that Verizon's waiver of UIM without notice to its employee driver was void.  Accordingly, National Union Fire Insurance Company, which was Verizon's commercial auto insurer, was ordered to provide UIM benefits up to the statutory limit that National was obligated to offer.

Anyone wishing to review this decision may click this LINK.

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

Tort Talk Scorecards Updated

I have recently updated both the Post-Koken Scorecard and the Facebook Discovery Scorecard on Tort Talk at www.TortTalk.com.

These Scorecards can always be freely accessed by going to the Tort Talk blog, scrolling down the right hand column until you get to the title "Post-Koken Scorecard" or "Facebook Discovery Scorecard," and clicking on the dates under those titles to get to the pages listing the various cases under these novel, evolving areas of law.

Here is a quick LINK to the Post-Koken Scorecard for your easy reference.

Here is a quick LINK to the Facebook Discovery Scorecard for your easy reference.


Hoping you can please help me to continue to update these Scorecards by providing me with copies of any Orders or Opinions you may secure in Post-Koken matters or with respect to Facebook/Social Media discovery or admissibility issues.  The publication of these decisions, whether favorable or not, will help to educate the bench and the bar on the developing common law in these new areas of litigation until appellate guidance is received to lay some of the issues to rest.

Thank you,

Dan Cummins

HAPPY HOLIDAYS

SENDING YOU HAPPY HOLIDAY WISHES FROM MY OFFICE IN THE SCRANTON ELECTRIC BUILDING.

HOPING THAT 2017 BRINGS YOU ALL THE BEST THAT LIFE HAS TO OFFER.

THANK YOU FOR READING AND SUPPORTING TORT TALK,

Dan Cummins

Split of Authority on Motions to Sever and Stay Post-Koken Bad Faith Claims Continues

In a recent Crawford County Court of Common Pleas decision in the Post-Koken case of Foster v. Erie Ins. Exchange, No. A.D. 2015-218 (C.P. Crawford Nov. 23, 2016 Vardaro, J.), the court issued a detailed Order covering several issues, the most notable of which was the Court's decision to grant the carrier's Motion to Sever the Bad Faith claim from the Breach of Contract claim.

The Court also stayed discovery on the Bad Faith claim pending the resolution of the Breach of Contract claim.  The Court further ruled that the Breach of Contract claim would be tried first followed by the Bad Faith claim.

Anyone wishing to review a copy of this detailed Order in the Foster case may click this LINK.

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.

Year End Review Article Published In Pennsylvania Law Weekly

The below article of mine was published in the December 1, 2016 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

Civil Litigation

A Year in Review: The Top Recurring Issues

By

Daniel E. Cummins

December 1, 2016/Pennsylvania Law Weekly 

Daniel E. Cummins
Foley, Comerford & Cummins
Scranton, PA

 

 

 

 

 

 

 

 

 

A number of recurring issues rose to the top of attention in the past year, many of which are expected to remain on the forefront of civil litigation trends into 2017. Here's a look back at some of the top topics in 2016 in personal injury matters.

Facebook Discovery Issues

In past years, with the rapid expansion of social media, the primary issue was to what extent a party may seek discovery of another party's social media activity, particularly with respect to Facebook. Now that the courts have generally allowed parties to delve into the private portions of another party's social media accounts provided that a predicate showing has been made that relevant information will be uncovered, a more recent trend of cases has considered when any such discovered information must be produced, i.e., before or after a party's deposition.

Typically, the courts have previously held, at least in the case of video surveillance completed on a party, that such surveillance information need not be produced in state court civil litigation matters until after the completion of a party's deposition.

The trial court judges in Dauphin County, including Judge Andrew H. Dowling and Judge Bruce F. Bratton, appear to be among the first to address the issue of when virtual surveillance information, i.e., social media search results from Facebook, Instagram, Tumblr and the like, must be produced have taken a different approach. These judges have ruled that social media information should be produced to an opposing party before that party's deposition, as in Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, Dowling, J.); Vinson v. Jackson, No. 2015-CV-05150-CV (C.P. Dauph. Co. Aug. 23, Bratton, J.); and Appleby v. Erie Insurance Exchange, No. 2016-CV-2431 (C.P. Dauph. Co. Sept. 9, Dowling, J.).

Whether other trial court judges from around the commonwealth will rule in a similar fashion or will, instead, apply the same rule of discovery pertaining to video surveillance remains to be seen.

Claims of Privileged Information in Discovery

In its decision in the case Brown v. Greyhound Lines, No. 1167 EDA 2015, 2016 Pa. Super. 108 (Pa. Super. May 24), the Pennsylvania Superior Court addressed issues pertaining to the attorney-client privilege and the work product doctrine as applied between attorneys and third-party administrators in personal injury civil litigation matters.

The issue raised in this matter involved a request for production of documents sent by the plaintiff to a defendant carrier seeking the contents of claims files, correspondence, and emails discussing the bus accident that were sent to or from any individual employed by Gallagher Bassett, a third-party adjustment company which contractually handled claims and investigations for the carrier. The defendants objected to these discovery requests on the basis that the materials were confidential under the attorney-client privilege and attorney work product privilege.

Applying the law to the case before it, the appellate court found that the defendants had failed to establish that the trial court's rulings allowing for the discovery of certain documents should be overturned. In part, the court faulted the defendants in failing to carry their burden of proof on the privilege by failing to make any specific arguments beyond citing general precepts concerning the attorney-client and work product privileges.

The issue of the admissibility of communications between defense counsel and a third-party claims administrator was also addressed in the Middle District court decision by Judge Matthew W. Brann in the case of Heller's Gas v. International Insurance of Hannover, 4:15-CV-01350 (M.D. Pa. June 1).

In this breach of contract and bad-faith case relative to a policy that provided commercial premises coverage, the plaintiff insured claimed that documents withheld or redacted in discovery did not fall within the attorney-client privilege, the work product doctrine, and did not pertain to reserve information. The plaintiff more specifically asserted that all but one of the documents at issue was either sent to or from employees of the insurer's third-party administrator or its authorized claim representative, and as neither of these entities were subsidiaries of, or owned by, the insurer, the communications were not privileged.

The carrier countered with the argument that the communications between the third party administrator's in-house counsel and the claim representative's in-house counsel with the insurer all fell within the scope of attorney-client privilege.

The court reviewed the unredacted documents during an in camera session. Thereafter the court, referring to F.R.C.P. 26, decided: "After thoroughly examining the documents, this court finds that the information redacted appropriately falls within the attorney-client privilege and work product doctrine and is consequently information directly related to or referencing legal strategy regarding the instant litigation. The correspondence further supports [the insurer's] latterly advanced argument that [the third party administrator and authorized claims representative] are essentially agents of [the insurer]." As such, the court found that the redactions were appropriate.

In a more recent decision on issues pertaining to assertions of privilege in response to discovery requests, the Superior Court emphasized that such issues were immediately appealable on an interlocutory basis as collateral orders.

In Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8), a case that involved claims of the attorney-client privilege and psychologist/patient privilege, the court held that in the event that a trial court orders the production of the privileged information in response to a motion to compel, even for the purpose of an in camera review by the trial court, the aggrieved party is allowed an immediate interlocutory appeal as of right as a collateral order.

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them. The Superior Court also ruled that the application of privileges is subject to a de novo review.

Waiver/Release from Liability Forms

A number of decisions were handed down over the past year upholding waiver or release forms executed by injured parties prior to participating in recreational activities.

In an apparent case of first impression of Feleccia v. Lackawanna College, No. 12-CV-1960 (C.P. Lacka. Co. Feb. 2), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

In his opinion, Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases for skiing, white water rafting, weight lifting, skating, and motorcycling, among other types of activities, no case was found involving collegiate football.

Gibbons nevertheless ruled that neither the applicable law nor the facts of this case required the court to distinguish between the inherently dangerous nature of football and these other types of sporting activities noted. As such, the court ruled that waivers of liability executed by the students precluded their recovery.

In the Superior Court case of Hinkal v. Gavin Pardo & Gold's Gym, No. 165 MDA 2014, 2016 Pa. Super. 11 (Pa. Super. Jan. 22) (en banc), the Pennsylvania Superior Court affirmed a trial court's entry of summary judgment in favor of the defendant's on the basis of a waiver agreement signed by the injured party plaintiff as part of a membership at Gold's Gym.

The Pennsylvania Superior Court agreed with the trial court's decision that the waiver language set forth in the Gold's Gym membership agreement was valid and enforceable. Accordingly, the entry of summary judgment in favor of the defendant was affirmed.

In another recent decision by the Superior Court in the case of Toro v. Fitness International, 2016 Pa.Super. 243 (Pa. Super. Nov. 10), the Pennsylvania Superior Court again affirmed the entry of summary judgment in favor of a defendant fitness center on the basis of an executed waiver form in a slip and fall case.

As part of its decision, the appellate court ruled that a release or waiver of liability signed by the plaintiff when joining the health club was valid and binding. The court stated that, where someone engages in a voluntary athletic or recreational activity, a release in a contract for the use of the facilities is not contrary to public policy. The court also ruled that a waiver of liability in this regard was not a contract of adhesion because there is no requirement for anyone to engage in recreational activities. The court also referred to the oft cited rule that a failure to read a release or waiver language before signing it does not affect its validity.

Neuropsychological IMEs

In its decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9), the Pennsylvania Superior Court affirmed a trial court's granting of a defendant's motion for a protective order prohibiting the presence of third-party observers during the standardized test portion of a neuropsychological evaluation.

Following a motor vehicle accident that gave rise to this case, the plaintiff treated with a neuropsychologist and, during that treatment, the plaintiff's treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the plaintiff's attorney or any other third party. The defense hired a doctor to complete an independent neuropsychological examination. The plaintiff's counsel demanded to be present during all components of the neuropsychological examination. The IME doctor objected to this request, including the plaintiff's counsel's request to audio tape the testing evaluation.

The IME doctor indicated that he would allow the plaintiff's attorney to be present during the interview portion of the examination. However, the IME doctor would not permit either the presence of the plaintiff's counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant's right to counsel during a psychological examination.

On appeal the appellate court affirmed the trial court's order, which stated that, although plaintiff's counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing. The order further provided that no recording device would be permitted in the evaluation room.

The Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue. The court also found support for the trial court's decision under Pa. R.C.P. 4010, pertaining to physical and mental examination of person.

The Superior Court also noted that, although there was "no case law [that] address of the application of Rule 4012 to Rule 4010," the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive rule, which covers all depositions and all discovery. Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.

Sever and Stay Post-'Koken' Bad-Faith Claims

Over the past year there was a rising trend of motions to sever and stay bad-faith claims in post-Koken automobile litigation matters.

A split of authority continues in this regard, with some courts allowing the severance and the stay of bad-faith claims, some courts severing the bad-faith claim but not staying bad-faith discovery, and some other courts denying these types of motions altogether. Summaries of at least some of these decisions uncovered, most by order only and without opinion, can be found on the post-Koken scorecard on my "Tort Talk" blog at www.TortTalk.com.

It remains to be seen if this issue, as well as other important post-Koken issues will make it up the appellate ladder in the year ahead. As the lower courts and the bar are craving guidance in this still novel area of the law, it is hoped that the Superior Court would publish any of its decisions on these topics as opposed to offering unpublished decisions marked "nonprecedential."

'Tincher'

In 2016, the courts and the bar continued to grapple with how to apply the Pennsylvania Supreme Court's products liability decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), in which the court ruled that the Restatement (Second) of Torts continued to be the accepted guideline for such cases.

In Tincher, the Supreme Court more specifically held that the nondelegable duty in a strict liability case is that the a person or company engaging in the business of selling a product has a duty to make a product that is expected to and does reach its user without substantial change in the condition in which it is sold and free from a defective condition that is unreasonably dangerous to the user of the product.

The court also confirmed under Tincher, that to demonstrate a breach of duty in a strict liability matter, a plaintiff must prove that a manufacturer placed a defective product on the market. Under Tincher, a case of strict products liability requires proof, in the alternative, either of the ordinary consumer's expectations or of the risk-utility of a product.

The court in Tincher more specifically held that the consumer expectations test defines a "defective condition" as a condition, upon normal use, dangerous beyond the reasonable consumer's contemplations. In contrast, the risk-utility test offers a standard which, in typical common law terms, states that: "a product is in a defective condition if a 'reasonable person' would conclude that the probability and seriousness of harm caused by the product outweigh the burden of costs of taking precautions."

In the past year, there have been some motions for summary judgment granted and some denied on the basis of Tincher. The trial courts are also attempting to craft new jury instructions for trials of post-Tincher matters. It is anticipated that the Tincher decision will continue to have a significant impact in products liability litigation matters until the Pennsylvania Supreme Court has a chance to revisit the issue. •

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

Federal Middle District Court Judge James M. Munley Addresses Admissibility of Insurance Information at Post-Koken Trial

In his recent December 8, 2016 Opinion in the case of Rodkey v. Progressive Direct Ins. Co., No. 3:16-CV-454 (M.D. Pa. Dec. 8, 2016 Munley, J.), Judge James M. Munley addressed the issue of the admissibility of insurance information at a Post-Koken trial.

This matter arose out of an uninsured motorist claim brought by a Plaintiff who was allegedly the victim of a hit-and-run accident.

In pre-trial motions in limine, the defense sought to preclude evidence of the amounts of premiums the Plaintiff had paid for her uninsured motorist benefits insurance as well as evidence of the amount of uninsured motorists benefits available under the policy.  The court denied both motions and ruled that the Plaintiff was allowed to present this evidence at trial.

The court found such evidence to be relevant to the breach of contract claim stated.  Judge Munley also rejected the defense argument that the admission of such evidence would cause confusion and/or be prejudicial. The court felt that any potential confusion or prejudice could be addressed by way of jury instructions and argument of counsel.

The court otherwise ruled on a separate motion that the plaintiff would be allowed to pursue a recovery of her co-pays and deductible related to medical expenses as those expenses were not "paid or payable" as defined by Pennsylvania's Motor Vehicle Financial Responsibility law.

Anyone wishing to review Judge Munley's decision in the Rodkey case may click this LINK.


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


To view another, prior decision by Judge James M. Munley in the case of Noone v. Progressive on the admissibility of insurance information in Post-Koken trial matters, click HERE.

To view an Eastern District Federal Court decision in the case of Lucca v. GEICO going the other way and ruling that such information was not admissible, click HERE.

With this split of authority, the hope remains that this issue, and other important Post-Koken issues will go up the appellate ladder and become the subject of published appellate court opinions to provide guidance to the bench and the bar.

Superior Court Rules That Any Trial Court Orders on Discovery Privileges Can Go Right Up the Appellate Ladder

In its recent decision in the case of Farrell v. Regola, 2016 Pa. Super. 241 (Pa. Super Nov. 8, 2016 Bowes, Jenkins, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s decision on an interlocutory appeal taken from a discovery order.  

The case involved claims of privilege, including the attorney/client privilege and psychologist/patient privilege relative to requested information from a Defendant.  

The court ruled that the ordering of the production of the Defendant’s privileged information, even for the purpose of an in camera review by the trial court, allows for an immediate interlocutory appeal as of right as a collateral order.  

The Superior Court ruled that, if matters are indeed privileged, no one, not even a trial judge, may have access to them.  The Superior Court also ruled that the application of privileges is subject to a de novo review. 

The court went on to note that statements made to a psychologist during the course of therapy are indeed privileged.   The court also noted that this privilege covers statements made to any members of the treatment team, including social workers.  

The court also found that since the Defendant did not initiate the cause of action, the Defendant did not waive the privilege asserted.  

The court otherwise ruled in this matter that a party’s notes taken at a deposition at the direction of counsel, are protected by attorney/client privilege. 

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

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

Summary Judgment Affirmed on Basis of Fitness Center's Waiver or Release Form in Slip and Fall Case

In its recent decision in the case of Toro v. Fitness Int’l, LLC, 2016 Pa.Super. 243 (Pa. Super. Nov. 10, 2016 Solano, Bowes, and Ott, J.J.) (Op. by Solano, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of a defendant fitness center in a slip and fall case.  

As part of its decision, the appellate court ruled that a release or waiver of liability signed by the plaintiff when joining the health club was valid and binding.   The court stated that, where someone engages in a voluntary athletic or recreational activity, a release in a contract for the use of the facilities is not contrary to public policy.   The court also ruled that a waiver of liability in this regard was not a contract of adhesion because there is no requirement for anyone to engage in recreational activities.  

The court also referred to the oft cited rule that a failure to read a release or waiver language before signing it does not affect its validity.   Here, the court also found that the waiver, which was placed in a box with the bolded words “release and waiver,” was sufficiently conspicuous.  

The court otherwise ruled that the plaintiff failed to establish negligence against the defendant due to the absence of any actual or constructive knowledge or the allegedly slippery condition that allegedly caused the Plaintiff to fall.  

Anyone wishing to review the Superior Court's decision in Toro may click this LINK.

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

Pennsylvania Commonwealth Court Reaffirms That Heart and Lung Benefits Are Not Subject to Subrogation Under MVFRL

In a recent decision in the case of Pennsylvania State Police v. WCAB, No. 2426 C.D. 2015 (Pa. Cmwlth. Oct. 26, 2016), the Pennsylvania Commonwealth Court followed it prior decision in the case of Stermel v WCAB, 103 A.3d 876 (Pa. Cmwlth. 2014), and reaffirmed that Heart and Lung benefits are not subject to Subrogation pursuant to Section 1720 of the MVFRL. 

Stated otherwise, the court ruled that the employer, which in this case was the Commonwealth of Pennsylvania, was not entitled to subrogation from Claimant's third-party recovery in a motor vehicle accident case.

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

I send thanks to Attorney Bruce Zero of  Powell Law in Scranton, PA for bringing this decision to my attention.

THANK YOU

SENDING THANKS TO YOU FOR READING AND SUPPORTING TORT TALK ALONG WITH BEST WISHES TO YOU AND YOURS FOR A VERY HAPPY THANKSGIVING.

Dan Cummins

Issues of Corporate Negligence Addressed in Lackawanna County Nursing Home Case

In its recent decision in the case of Breslin v. Geisinger Mountain View Care Center, No. 2015-CV-5015 (C.P. Lacka. Co. Oct. 21, 2016 Braxton, S.J.), Senior Judge John Braxton, sitting for the Lackawanna County Court of Common Pleas, sustained several Preliminary Objections asserted by a nursing home care facility in a medical malpractice action.  

Of note, the court found that the Plaintiff’s allegations in the Complaint failed to state a corporate negligence claim against the nursing home facility.  

The court additionally found that the Plaintiff failed to plead allegations sufficient to proceed on a claim for vicarious liability.  In part, the defense argued that the Plaintiff failed to identify the nurses, doctors, and other medical, professional staff, who allegedly treated the Plaintiff’s decedent in a negligent manner.  

The court also found that Plaintiff failed to state a claim for punitive damages under facts alleged in the Complaint and, as such, the claim for punitive damages, along with all allegations of recklessness, were stricken.  

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

Judge Nealon of Lackawanna County Denies Defense Motion to Seal Settlement in Med Mal Case

In a recent decision in the case of Vaccaro v. Scranton Quincy Hospital Company, LLC, No. 2014-CV-7675 (C.P. Lacka. Co. Nov. 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a defense request to seal settlement records in a medical malpractice case.  The court found that the defendants’ arguments about the potential impact on future settlement negotiations and loss of business did not outweigh the need to keep judicial records accessible to the public.

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

Summary Judgment Granted in Federal Eastern District of Pennsylvania Slip and Fall Case

In the case of Breen v. Millard Group, Inc., No. 2:13-CV-06926 (E.D. Pa. Nov. 9, 2016 DuBois, J.), the Eastern District Federal Court granted a Motion for Summary Judgment in a slip and fall case.  

In this matter, the court found that the Plaintiff had no evidence as to the cause or origin of the spilled liquid.  As such, the Plaintiff did not have any evidence to establish actual or constructive notice on the part of the Defendant of an allegedly dangerous condition.  

The court ruled that the record confirmed that the Defendant’s documents reflected no actual notice of the condition.   The court also found that a Plaintiff was not entitled to a spoliation inference as the Plaintiff could not establish that any records were missing.   The court otherwise held that the mere lack of documentation does to establish spoliation.   

In this regard, the court found that the Plaintiff did not establish that her fall was reported to the Defendants so as to given rise to a duty to preserve any documents for evidence.

Anyone wishing to review a copy of the Court's Order in this case may click this LINK.  The actual Opinion can be viewed HERE.

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

I send thanks to Attorney Darryl J. Ligouri of the Harrisburg, PA law firm of Smigel, Anderson & Sacks for sending me a copy of the actual Opinion.

Motion To Sever/Stay Bad Faith Part of UIM/Bad Faith Claim Granted in Allegheny County

In a recent decision by Order only out of the Allegheny County Court of Common Pleas, Nebel v. Encompass Home and Auto Insurance Company, No. GD-15-015891 (C.P. Allegh. Co. Oct. 6, 2016 Folino, J.), the court granted a Defendant’s Motion to Sever and Stay the Bad Faith portion of a UIM/bad faith matter.

In its Order, the court allowed discovery to proceed as set forth in Judge Wettick’s Wutz Opinion.   However, the trial of the bad faith was continued to a later time to allow for the filing a summary judgment and to allow the parties to organize discovery and expert reports.  

Tort Talkers may recall that, prior to this Order, the Wutz case had suggested that the bad faith trial begin immediately after the completion of the UIM case.  

I send thanks to Attorney Craig W. Beil of the Pittsburgh, Pennsylvania office of Robb Leonard Mulvihill, LLP for bringing this Order to my attention.  

Anyone wishing to review this Order may click this LINK.

LINK to Complimentary Copy of the TORT TALK 2016 CIVIL LITIGATION UPDATE

Here is a LINK to a complimentary copy of the 60 page Tort Talk 2016 Civil Litigation Update booklet that I created for use at the recent Lackawanna Bench Bar Conference as well as the Luzerne County Bench Bar Conference.

The Tort Talk 2016 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and is offered here for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering a small donation to the charity of your choice or perhaps to the Children's Advocacy Center in Scranton which is a private non-profitable charitable organization whose mission is to provide excellence in the assessment and treatment in child abuse and neglect case.  The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510.  Here is a LINK to their website.  Just a thought.

Thanks for reading Tort Talk and for providing notable cases for possible highlighting on Tort Talk.  All is much appreciated.

Superior Court Addresses Procedural Impact of Death of Defendant Before Case Filed (Non-Precedential)

In the non-precedential decision of Vincigueria v. Tunstall, No. 403 WDA 2016 (Pa. Super. Sept. 23, 2016 Lazarus, Olson, Platt, JJ.) (Mem. Op. Platt, J.), the Pennsylvania Superior Court found that a trial court properly dismissed a Plaintiff’s action against a driver of the other car involved in the subject motor vehicle accident because the other driver had died before the action was filed, the statute of limitations had expired, and there was no evidence to show any fraudulent concealment in order to toll the statute of limitations.  The court additionally found that the Plaintiff’s own lack of due diligence precluded applying the relation back doctrine. 

According to the Opinion, the Plaintiff filed her action more than eight (8) months after the other driver’s death and did not name the other driver’s personal representative as a Defendant and also failed to file any action against the other driver’s estate within one (1) year of the other driver’s death.     It was additionally noted in the Opinion that the Sheriff’s Department had notified the Plaintiff of the other driver’s death when the Sheriff attempted to complete service.  

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

Superior Court Addresses Procedural Issues With Death of a Defendant During Pendency of Litigation

In its recent September 28, 2016 decision in the case of Grimm v. Grimm, No. 2016 Pa. Super. 217, 915 W.D.A. 2015 (Pa. Super. Sept. 28, 2016 Olson, Stabile, and Musmanno, J.J.) (Mem. Op. by Olson, J.), Pennsylvania Superior Court addressed the issue of whether a trial court possesses subject matter jurisdiction of a claim pending against a Defendant when the Defendant in an action dies during the litigation and no personal representative is substituted in his or her place. 

The court held that the death of a party deprived the trial court of subject matter jurisdiction over litigation by or against the deceased until such time as the deceased’s personal representative is substituted in his or her place.  

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

Anyone wishing to review this decision may click this LINK.

Judge Zulick Weighs Plaintiff's Right to Ongoing Discovery Against Defendants Facing Criminal Charges in Companion Case

In his recent decision in the case of Liu v. Pi Delta PSI Fraternity, Inc., 302-CV-2015 (C.P. Monroe Co. Aug. 22, 2016 Zulick, J.), Judge Arthur L. Zulick reviewed the law surrounding a Motion to Stay a civil litigation matter pending the disposition of criminal charges asserted against the Defendants in a companion case.  

This matter arose out of fatal injuries sustained by the Plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity.

During the pendency of this civil litigation matter, criminal charges were also proceeding against certain Defendants.  

After the Plaintiffs served discovery on the Defendants, certain Defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges.   One basis for the motion was that the Defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.  

Judge Arthur L. Zulick
Monroe County

In his decision, Judge Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.  

Judge Zulick also found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution requires a balancing of the various interests of the parties.   Judge Zulick noted that, while the Pennsylvania Appellate Courts have not adopted a specific balancing test to be applied in these situations, the federal courts have.   The court cited the factors noted in the case of In Re Adelphia, 2003 WL 22358819 (E.D. Pa. May 13, 2013).

The court applied the following factors in this Lui case:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests

After applying these factors to the case before him, Judge Zulick issued a split decision, granting the Motion to Stay in part but allowing other parts of discovery to proceed as well.  

Anyone wishing to review Judge Zulick's decision in the Lui case may click this LINK.

Judge Nealon of Lackawanna County Addresses Admissibility of Affordable Care Act to Challenge Claim of Future Medical Expenses in a Malpractice Action

In his recent decision in the case of Vaccaro v. Scranton Quincy Hospital Company, LLC, No. 2014-CV-7675 (C.P. Lacka. Co. Oct. 24, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of the admissibility of the Affordable Care Act to challenge a Plaintiff’s future life care plan damages evidence.  

This matter pertains to an obstetrical and hospital negligence claim.   The Defendant-obstetrician filed a Motion In Limine seeking leave of court to introduce evidence and cross-examine the Plaintiffs’ economic damages experts on the provisions of the Patient Protection and Affordable Care Act, which requires individuals to purchase health insurance and establish limits for annual out-of-pocket expenses.

The defense asserted that these new health insurance provisions provide grounds to reconsider and renounce the common-law collateral source rule that bars evidence of any payments made by a collateral source on behalf of a Plaintiff.  

Judge Nealon noted that, although Section 508(a) of the MCARE Act generally bars a Plaintiff from recovering damages for past medical expenses that are covered by a collateral source Section 509, governing claims for future medical expenses, does not contain comparable language abrogating the collateral source rule for future medical expenses claims.  

Judge Nealon also noted that the only relevant appellate precedent issued by the Pennsylvania Superior Court in the case of Deeds v. University of Pennsylvania Medical Center, 110 A.3d 1009 (Pa. Super. 2015), appeal dismissed, 128 A.3d 764 (Pa. 2015),  resulted in a decision that referenced to the Affordable Care Act’s provisions in malpractice litigation constitutes “a patent violation of the collateral source rule.” 

Accordingly, Judge Nealon denied the Defendant’s Motion In Limine.  

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

Assault and Battery Exclusion Upheld to Preclude Coverage in a Shooting Case

In its recent decision in the case of QBE Ins. Corp. v. Walters, (Pa. Super. Sept. 9, 2016) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed a trial court’s entry of summary judgment in favor of an insurance company in a declaratory judgment action the carrier brought to adjudicate its obligations in a suit filed by a person shot in the parking lot of the insured’s café.  

According to the Opinion, the general liability insurance policy at issue provided coverage for “bodily injury” and “property damage” but also contained an expansive assault and battery exclusion.  

After a dispute in the café lead to the patron being shot in the parking lot, the patron sued the café and the café owner for negligence, asserting that the Defendants knew that other patrons brought firearms into the café, that the surrounding area was a high crime neighborhood, and that the café was negligent in allowing the shooter to enter and exit the café while armed and by failing to protect its patrons.   The Plaintiff also alleged that the café failed to properly train and supervise its employees.  

In its Opinion, the court distinguished the case of QBE Ins. Corp. v. M&S Landis Corp., 915 A.2d 1222 (Pa. Super. 2007), by noting that the assault and battery exclusion at issue in that case was more narrow than the one at issue in this Walters case.  

Here, the assault and battery exclusion in Walters was found to be more comprehensive and expansive.  The exclusion expressly precluded from coverage allegations of negligent employment, investigation, supervision, training and retention of employees relative to assault and battery claims.

As such, the court affirmed the entry of summary judgment by the trial court below. 

Anyone wishing to read this Opinion, may click this LINK.

Preliminary Objections Based on Lack of Timely Service of Process Sustained

In the Berks County case of Wilkinson v. Miller, 108 Berks 312 (C.P. Berks Co. 2016), the court sustained Preliminary Objections in a case where the Writ of Summons was filed before the expiration of the applicable statute of limitations but where the Plaintiff took no action to effectuate service for thirteen (13) months, which time period went well past the expiration of the statute of limitations. 

In dismissing the Complaint, the court found a lack of a good faith effort on the part of the Plaintiff required by Pennsylvania law to serve original process upon the Defendant.

I do not have a copy of this decision but have provided the above citation.  


Source:  "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (Sept. 26, 2016).

Judge Nealon of Lackawanna County Grants Motion for Coordination of Actions Arising Out of Same Accident But Filed in Separate Counties

In his recent decision in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. Oct. 21, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Motion to Coordinate two actions filed in two separate counties arising out of the same accident.

Judge Nealon reviewed the Motion for Coordination under the applicable Rule of Civil Procedure, i.e., Pa.R.C.P. 213.1.

The cases involved a shooting incident that occurred in Susquehanna County.  There was one action pending in Susquehanna County and one action pending in the Lackawanna County Court of Common Pleas.

Given that (1) the incident occurred in Susquehanna County, (2) the two cases involved the same theories of liability, (3) each case was supported by the same fact and expert witnesses, (4) Susquehanna County was the most convenient forum for the witnesses and (5) given that there was no connection with Lackawanna County, the court granted the Motion and ordered that the cases be coordinated in Susquehanna County.

Judge Terrence R. Nealon
Lackawanna County

In so ruling, Judge Nealon noted that coordination of these actions would further the Rules goal of avoiding duplication of effort, avoiding multiple trials on the same matter,and avoiding inconsistent judicial decisions and verdicts.

Anyone wishing to review this decision may click this LINK.

Federal Middle District Court Judge James M. Munley Grants Offensive Motion for Summary Judgment Filed by Plaintiff on Liability in Car Accident Case

In the case of Broe v. Manns, No. 3:15-cv-985 (M.D. Pa. Sept. 27, 2016 Munley, J.), Judge James M. Munley of the United States District Court for the Middle District of Pennsylvania granted an offensive Motion for Summary Judgment filed by the Plaintiffs on the issue of liability in a motor vehicle accident case.  

According to the Opinion, this case arose out of a rear-end motor vehicle accident.  

The Plaintiff filed a Complaint alleging negligence and loss of consortium. Thereafter, the Plaintiff moved for partial summary judgment on the issue of liability.  

After reviewing the summary judgment standard of review, the court granted the Plaintiff’s Motion for Partial Summary Judgment on liability.  

The Plaintiff main contention was that the Defendant’s admission that he failed to brake to avoid the Plaintiff’s vehicle constituted negligence per se.  

The Defendant countered with an argument that his admission, given during a deposition, was an insufficient basis upon which to grant summary judgment.   The Defendant also asserted that the sudden emergency doctrine relieved him from liability. 

The court stated that it is well-settled that a violation of the Pennsylvania Motor Vehicle Code constitutes negligence per se.   Relying upon Pennsylvania Motor Vehicle Code provisions, including the assured clear distance ahead statute at 75 Pa. C.S.A. §3361, and noting that the police cited for violating that statute, the court found that the Defendant’s admission in this regard eliminated any genuine issue of material fact.   The court found that the Defendant’s admissions, coupled with the citations for violating the assured clear distance ahead statute, sufficiently established negligence per se.   Since the Defendant had not identified any genuine issues of material fact, the court found that there was no sufficient evidentiary basis upon which a reasonable jury could find in the Defendant’s favor on the liability issue.  

The court also rejected the Defendant’s reliance upon the sudden emergency doctrine noting that, under the applicable law, a person cannot avail himself of the protections of that doctrine if that person was himself driving carelessly.   The court stated that, based upon the Defendant’s citation for violating the motor vehicle code, along with his admissions on the issue of liability, the undisputed evidence before the court was found to establish, at the very least, that the Defendant was driving carelessly.  As such, the court found that the Defendant could not rely upon the sudden emergency doctrine to relieve him from liability.  

As stated, overall, the court granted Plaintiff’s Motion for Partial Summary Judgment on the issue of liability.

 

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

 

I send thanks to Attorney Michael J. Foley of The Foley Law Firm of Scranton, Pennsylvania for bringing this case to my attention.