Monday, November 28, 2016

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.

Wednesday, November 23, 2016



Dan Cummins

Tuesday, November 22, 2016

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.

Monday, November 21, 2016

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.

Tuesday, November 15, 2016

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.

Monday, November 14, 2016

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.

Thursday, November 10, 2016

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.

Tuesday, November 8, 2016

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.

Friday, November 4, 2016

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.

Wednesday, November 2, 2016

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.