Friday, July 29, 2016

Judge Mazzoni of Lackawanna County Addresses Validity of UIM Rejection Forms (Including One that Was Backdated)

In a recent decision in the case of Petrillo v. Ace American Ins. Co., 2013-CV-306 (C.P. Lacka. Co. July 26, 2016 Mazzoni, S.J.), Senior Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion for Summary Judgment and denied the insurance company’s cross-Motion for Summary Judgment in a case surrounding the validity of UIM rejection forms.  

According to the Opinion, two (2) forms were at issue.  The first was a rejection form that was signed and dated October 18, 2011 which the Plaintiff attacked as not having the requisite language for such forms as required by 75 Pa. C.S.A. §1731(c), (c.1).  

Also at issue was a second rejection form with a date of January 1, 2012, the policy’s inception date.  That rejection form was found to “mirror,” in all aspects, the statutory language of §1731(c).   The Plaintiff presented evidence that this second form had been backdated to the policy inception date.  

After reviewing the facts against the applicable law, Judge Mazzoni agreed with the Plaintiff’s contention that the failure of the first form to strictly comply with the form language required by §1731(c) rendered that rejection form void.  

As to the second form, the Plaintiff asserted that backdating the form rendered that form void.   The Defendants countered with a position that the backdating of the form was irrelevant because that form was allegedly signed months before the subject accident occurred.  

Judge Mazzoni noted that §1731(c.1) requires that the form be signed by the first named insured and be dated in order to be valid.    

The court noted that, absent evidence to the contrary, the court could not conclude as a matter of law that there existed any fraud in the backdating of the document.  However, the court went on to review differing prior court decisions on the import of  the backdating of insurance forms. 

The Petrillo court found the second, backdated waiver of UIM benefits form to be void and of no legal effect.  In so ruling, the court noted that there was an uncertainty as to when the backdating had occurred. 

Anyone wishing to review Judge Mazzoni's Opinion in the Petrillo case may click this LINK.

I send thanks to Attorney Vince Cimini of the Scranton, PA law firm of Cognetti & Cimini for bringing this case to my attention.

Pennsylvania Supreme Court to Tackle Discoverability of Peer Review Documents in Context of Med Mal Case

On July 7, 2016, the Pennsylvania Supreme Court granted allocatur in the case of Reginelli v. Boggs, to address the issue of whether a hospital can invoke privilege with regards to peer review documents prepared by an outside contractor and, if so, whether that privilege is waived when the third party shares those documents with hospital administration.  

A Superior court panel had previously ruled in a non-precedential Opinion in this case that the peer review documents created by a third party were not protected under the Peer Review Protection Act, thus affirming a Washington County trial court judge’s ruling. 

I send thanks to Attorney Thomas G. Wilkinson, Jr. of the Philadelphia office of Cozen O’Connor for bringing this notable news to my attention.   

Thursday, July 28, 2016

Admissibility of Damaging Facebook Posts by Plaintiff Addressed by Western District Federal Court

A Facebook decision from a while back has been brought to my attention--this one is not on the discoverability of Facebook info;  rather, this decision pertains to the admissibility of such information at trial over the objection of the Plaintiff, in part, that the information is embarrassing.

In the Federal Western District Court of Pennsylvania decision of Newill v. Campbell Transp. Co., No. 2: 2012-CV-1344, 2015 U.S. Dist Lexis 4350 (W.D. Pa. 2015 McVerry, J.) from over a year ago, the court reviewed a Plaintiff's motion in limine to preclude the Defendant from introducing several of the Plaintiff's Facebook posts into evidence in a personal injury matter on the basis they were irrelevant, unfairly prejudicial, and potentially embarrassing.  

According to the opinion the Plaintiff's Facebook posts referenced going to the gym, landscaping, flooring, and undercoating a truck.  The Plaintiff also apparently advertised his services as a handyman, indicating that no job was too big or too small. The Court found that the posts from Plaintiff's Facebook account that reflected physical capabilities inconsistent with Plaintiff's claims of injury and limitations were relevant and embarrassment alone was found not to be a sufficient basis for excluding the posts pursuant to F.R.E. 403.  

The Court did leave the door open for the issue to be revisited during the actual trial by noting that if, at the time of trial, the Defendant attempted to introduce posts the Plaintiff felt were particularly embarrassing, the issue of admissibility could be re-raised pursuant to F.R.E. 611.

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

I send thanks to Brian Murren, a law clerk in the Camp Hill office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.

Wednesday, July 27, 2016

Choice of Ways Doctrine Reviewed in Premises Liability Case

In the case of Graham v. Mohegan Sun, No. 3:14-CV-0908 (M.D. Pa. June 14, 2016 Kosik, J.), the court denied a landowner Defendant’s request for summary judgment in a trip and fall case.  

In this matter, the Plaintiff allegedly fell on a well-worn, but informal dirt path through grass on the premises.  

Judge Kosik held that it could not be held as a matter of law that the well-worn, but informal, dirt path through grass upon which the Plaintiff fell was an obviously dangerous condition so as to require dismissal under the choice of ways doctrine.

Judge Kosik reaffirmed that the choice of ways doctrine requires (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.  

In this matter, there was no evidence of any signs advising of a safer route.  

The court otherwise ruled that a construction company’s whose worker allegedly directed the Plaintiff on a path to take could also be liable under a contractual provision requiring the construction company to take reasonable precautions on the land.  

Overall, the court found that issues of fact precluded the entry of summary judgment in favor of the defense.

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

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

Summary Judgment Denied in Lycoming County Slip and Fall Case

In a recent decision out of the Lycoming County Court of Common Pleas in the case of Goldy v. Woodlands Bank, No. 15-01334 (C.P. Lycoming Co. May 31, 2016 Gray, J.), Judge Richard A. Gray denied a landowner Defendant’s Motion for Summary Judgment in a trip and fall case.  

Judge Richard A. Gray
Lycoming County

The landowner initially asserted that the Plaintiff assumed the risk by walking over an allegedly dangerous condition that the Plaintiff had previously encountered.  The landowner Defendant also argued that it was entitled to summary judgment given that the Plaintiff was unable to state exactly what caused her to fall.  

The court denied the motion after finding issues of fact precluded the entry of summary judgment.  

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

Tuesday, July 26, 2016

Declaratory Judgment Entered In Favor of Homeowner's Carrier on Intentional Acts Exclusion in Shooting Case

Summary judgment was recently entered in favor of a carrier in a declaratory judgment action of Erie Insurance Exchange v. Moore, et al., No. CR 2014 - 4931 (C.P. Wash. Co. May 31, 2016 Emery, J.).  The court entered summary judgment in favor of the carrier on a coverage question that implicated an intentional acts exclusion under a homeowner’s policy in a case arising out of a tragic shooting.

The party injured in the shooting sued the shooter’s estate seeking damages for his personal injuries.  The Estate representatives sought coverage under the shooter’s ERIE homeowner's policy.  ERIE provided the Estate with a defense to the lawsuit, but also commenced a declaratory judgment action, seeking a declaration that no coverage was owed because shooter’s actions were intentional and, thus, barred from coverage for several reasons, including the policy's "intentional act" exclusion.  The injured party argued in the coverage action that the shooter did not intend to shoot him, but rather accidentally shot him during the struggle.

The parties filed cross-motions for summary judgment.  By Order of May 31, 2016, the Honorable Katherine Emery, president judge of the Washington County Court of Common Pleas, entered an Order granting ERIE's Motion for Summary Judgment and denying Carly's Motion. 

In her Opinion, Judge Emery essentially found that the policy covers only "accidents" and not intentional acts.  The Court quoted a previous Superior Court decision that held "[a]n insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result." 

Judge Emery found that, under all of these circumstances, the shooter's acts that resulted in the injury of Carly were intentional, per this definition.  Specifically, Judge Emery held that "[t]he shooting of Carly plainly resulted from human agency.  Moreover, the prospect of injury from a gun firing during a physical struggle over that gun was no less plainly and reasonably anticipated.  As such, while tragic, the shooting of [the injured party] by [the shooter], cannot fall within the definition of an accident." 

Anyone wishing to review this case may click this LINK

I send thanks to the prevailing defense attorney Craig Murphey of the Erie, Pennsylvania law firm of MacDonald, Illig, Jones & Britton, LP for bringing this case to my attention. 

Monday, July 25, 2016

Judge Gibbons Reaffirms His Corporate Negligence Decision in Med Mal Context

In another decision from Judge James A. Gibbons in the case of Astleford v. Delta Medix, P.C., No. 2015-CV-5134, the court addressed various motions including the Defendant’s Motions for Reconsideration of the court’s prior decision overruling the Defendants’ Preliminary Objections to the Plaintiff’s claims of corporate negligence against a physician’s practice. 

Judge Gibbons reviewed the applicable law the court emphasized that, in reviewing the case before that this Preliminary Objections stage, the Plaintiff had not averred that the Defendants’ function as a mere physician’s office or even as a group of physicians.  

Judge Gibbons reaffirmed his previous holding that the Plaintiff has pled sufficient facts to state a claim for the imposition of corporate negligence against the corporate Defendants.   Judge Gibbons noted that, whether that claim survives throughout the case is a question for another day.   Accordingly, the Defendants’ Motion for Reconsideration was denied.   

Anyone wishing to review Judge Gibbon's decision on the Motions for Reconsideration, may click this LINK.

Judge Gibbons' original decision in this case on these issues can be viewed HERE.

For a recent Opinion by Judge Terrence R. Nealon, also of Lackawanna County, on the same issue in the case of Brink v. Marian Community Hospital click HERE to view that Tort Talk post which contains a Link to that decision.

Luzerne County Local Rules on Civil Litigation Arbitrations Amended

Here is a LINK to an Luzerne County Order of Court amending its Local Rules of Civil Procedure 1301 - 1313 pertaining to Arbitrations in that County.

Of note are the adoption of a jursidictional limit of $50,000 or less for Arbitrations in that County along with procedural rules that seem to mirror the Pennsylvania Rules of Civil Procedure in the same regard.

These Rules will go into effect on July 25, 2016.

Thursday, July 21, 2016

Superior Court Finds Landlords May Be Liable For Failure to Install Smoke Detectors in Leased Premises

In the case of Echeverria v. Holley, 2016 Pa. Super. 119, No. 1342 WDA 2014 (Pa. Super. June 14, 2016 Olson, Gantman, Fitzgerald, J.J.) (Op. by Olson, J.), the Pennsylvania Superior Court ruled that a landlord may be held liable for failing to install smoke detectors under the general rule that landlords owe a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. 

The court noted that, since smoke detectors were required by law, failure to install them could be a negligent failure to maintain the property in a safe condition.  

The court also emphasized that claims of negligence and negligence per se are significantly different claims.   The court ruled that an amendment seeking to add a negligence per se claim to the Complaint after the expiration of the statute of limitation was barred as a matter of law where that particular claim did not relate back to another negligence claim pled.

The court also otherwise indicated that, to the extent that a claim for implied warranty of habitability was pled in a landlord-tenant personal injury context, only contract remedies would be available under that theory and not tort damages for personal injuries. 

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

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

Monday, July 18, 2016

Plaintiff Permitted to Discontinue Post-Koken Action Against Tortfeasor Over Objection of UIM Carrier

In a trial court Order entered by the Dauphin County Court of Common Pleas in the case of Phaler v. Ray and Westfield Insurance Company, No. 2014-CV-7332 (C.P. Dauph. Co. May 17, 2016 Bratton, J.), the court granted a Plaintiff’s Motion to Discontinue the post-Koken action against the tortfeasor Defendant over the objection of the UIM carrier. 

According to reports on the case, the UIM carrier attempted to compel the inclusion of the tortfeasor even though the tortfeasor had tendered his limits.  The argument raised was that the UIM carrier would be prejudiced during depositions and at trial if the tortfeasor was not forced to remain a party to the matter.  

In this Order issued by the court, the Plaintiff’s Motion for Partial Discontinuance in favor of the tortfeasor Defendant was granted and the tortfeasor Defendant was discontinued from the action with prejudice and his name was ordered removed from the caption.  

Anyone desiring a copy of this Order may contact me at

I send thanks to Attorney Stephen Franko for bringing this case to my attention.

Wednesday, July 13, 2016

Judge Nealon of Lackawanna County Affirms Validity of Pursuing Corporate Liability Claims in Med Mal Cases

Several notable issues were addressed by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in his recent decision in the case of Brink v. Marian Community Hospital, No. 13-CV-1314 (C.P. Lacka. Co. June 30, 2016 Nealon, J.).

Of particular note is that, in this detailed Opinion issued in a psychiatric medical malpractice wrongful death action, Judge Nealon covered topics such as corporate liability vs. vicarious liability, including an analysis of prior appellate court and Lackawanna County decisions that applied corporate liability concepts to professional medical corporations, i.e., private doctor's groups or offices.  Judge Nealon followed the prior precedent of allowing for corporate liability against professional medical corporations in medical malpractice actions,

Judge Nealon also addressed issues surrounding both the "gross negligence" standard under the Mental Health Procedures Act, and separate punitive damages claims in this context.  Notably, the punitive damages claims were dismissed.

Overall, the court granted the Defendants' motions for summary judgment in part, and denied them in part.

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

Monday, July 11, 2016

Bad Faith Claim Allowed to Proceed in Fire Loss Case

In his recent decision from a few months back in the case of Turner v. State Farm Fire & Cas. Co., Case No. 15-CV-906, (M.D. Pa. January 14, 2016 Conaboy, J.), Judge Richard P. Conaboy of the  Federal Middle District Court allowed a bad faith claim to proceed beyond a motion to dismiss in a first party fire loss case.

 The insurer had moved to dismiss a bad faith count under Twombly/Iqbal standards for federal court Complaints.  The court denied the motion and found that the bad faith claim was adequately pled.

Judge Richard P. Conaboy
M.D. Pa.
The insureds alleged the property at issue was insured for contents coverage and other miscellaneous coverages in the amount of $159,060.00. The complaint alleged that despite repeated demands, the carrier did not make payment on claims subject to these coverages.

Anyone wishing to review this case may click this LINK.

I send thanks to Lee Applebaum of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  Attorney Applebaum is with the Philadelphia law firm of Fineman, Krekstein & Harris.

Friday, July 8, 2016

Evidence of UIM Policy Limits and Premiums Paid Precluded in Pennsylvania Eastern Federal District Court Post-Koken Trial

In a recent Post-Koken opinion out of the Eastern District Federal Court of Pennsylvania in the case of Lucca v. GEICO, No. 2:15-CV-04124-GEKP (E.D. Pa. July 7, 2016 Pratter, J.), the court issued an Opinion granting a pre-trial motion in limine of the UIM carrier to preclude any mention at trial of the amount of the available UIM limits and/or the premiums paid by the Plaintiff for those UIM benefits.

Noting that caselaw on this issue in Pennsylvania was basically nonexistent, the court essentially ruled that information pertaining to the UIM policy limits and premiums paid were irrelevant to the issue of the extent of the Plaintiff's injuries allegedly resulting from the accident.  The court also noted that the admission of such information could be prejudicial to the UIM carrier.

As such, the court granted the carrier's motion in limine and precluded the evidence.  In so ruling, the Lucca court declined to follow the more expansive decision of Noone v. Progressive out of the Middle District Federal Court of Pennsylvania.  [Click this LINK to view the 2013 Tort Talk post on the Noone case and to access that decision through a Link].

Anyone wishing to review the Lucca decision may click HERE

I send thanks to the prevailing defense attorney Robert Cahall of the Wilmington, DE office of McCormick & Priore for bringing this case to my attention.

Thursday, July 7, 2016

Western Federal District Court Addresses Inter-Policy Stacking Issues

In its recent decision in the case of Costa v. Progressive Preferred Insurance Company, No. 2:16-cv-74 (W.D. Pa. June 10, 2016 McVerry, S.J.), the court granted Progressive’s Motion for Summary Judgment and denied the Plaintiff’s Motion for Summary Judgment on the issue of the extent of coverage UIM coverage due to the Plaintiff in this inter-policy stacking case.  

According to the Opinion, following a fatal motor vehicle accident, the Plaintiff asserted that the decedent was an insured under three (3) separate policies, i.e., one policy issued to the decedent’s father by Safeco Insurance Company, which was stacked, a policy issued to the decedent’s mother and his mother’s sister by Erie Insurance, which was non-stacked, and the Progressive policy issued to the decedent’s mother that provided for $50,000.00 in UIM coverage. The decedent’s mother had signed a “waiver-of-stacking form” under the Progressive policy.  

After the accident, Safeco and Erie Insurance tendered the full limits while Progressive offered $20,000.00, which the Plaintiff accepted, after Progressive took the position that its policy’s “Other Insurance” clause limited its exposure to its pro rata share of the largest applicable single vehicle UIM policy.  

Thereafter, the Plaintiff filed suit alleging claims for breach of contract and bad faith based upon Progressive’s failure to tender its $50,000.00 in UIM benefits.  

The federal court reviewed the stacking issue under the Pennsylvania Supreme Court’s decision in the case of Craley v. State Farm Fire and Cas. Co., 895 A.2d 530, 539 (Pa. 2006).  

In applying Craley, the court rejected the Plaintiff’s argument that the insured did not understand the waiver of stacking forms she was signing.  The court also ruled that, because the insured had waived stacking, the “Other Insurance” clause applied.  

The court in this Costa case also went on to distinguish the case before it from the case of Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008).  

As noted, the federal court in Costa ultimately granted summary judgement in favor of Progressive finding that Progressive had properly paid out UIM limits under its policy under the policy provisions applicable to the case presented.  

Anyone desiring to review this case may click this LINK.

I send thanks to Attorney Patrick Sweeney of the Philadelphia law firm of Sweeney and Sheehan for bringing this case to my attention.  



Tuesday, July 5, 2016

Coverage/Defense for Injuries Resulting from Bar Fight Denied Under Liability Policy

In a recent Philadelphia County Court of Common Pleas decision in the case of Penn-Patriot Ins. Co. v. Williams, PICS Case No. 16-0659 (C.P. Phila. Co. May 9, 2016 Djerassi, J.), the court ruled in a declaratory judgment action on an issue of coverage brought by a liability insurance company seeking a judicial declaration that the insurance company need not provide coverage to its insured Defendants in a matter arising out of a fight that occurred at the insured's cafĂ©.  

According to the Opinion, the carrier denied coverage based upon the terms of its policy and an endorsement entitled “Assault or Battery General Liability Exclusion.”  

The trial court also noted that the policy provided coverage for bodily injury or property damages caused by an “occurrence” which was defined as an accident.   

Also, an endorsement in the policies expressly stated that the policy “does not apply to liability for damages because of ‘bodily injury,’ ‘property damage,’…medical expense arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation’” in, near, or away from the premises, whether or not caused by or involving the insured, the insured’s employees, patrons, or other persons.  

The policy also excluded coverage for any act or omission related to the prevention of such incidents, failure to warn, and/or negligent hiring, training, and/or supervision. 

The court ruled that the factual allegations pertaining to the fight that occurred on the premises did not trigger coverage under the policy at issue.   The court found that the injuries to the injured party arose from the blows by hands, fists, and a bottle, not from any acts of negligence.   

The court also emphasized that the allegations of the Defendant’s failure to warn, employed competent staff, train employees, or supervise employees were expressly excluded from coverage by the language of the policy.  

Accordingly, the court entered a declaratory judgment finding that no coverage or defense need be provided to the Defendants in this matter.  

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

I send thanks to Attorney Jay Fulmer of Philadelphia for securing a copy of this decision for dissemination.   

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 31, 2016).