Wednesday, August 31, 2016

Eastern Federal District Court Disqualifies Plaintiff's UIM Bad Faith Counsel Where Attorney Served As Plaintiff's Counsel in Underlying UIM Claim

In the UIM bad faith case of Adeniyi-Jones v. State Farm Mut. Auto. Ins. Co., No, 14-7101 (E.D.Pa. June 20, 2016 Bartle, J.), the court sua sponte disqualified a Plaintiff's attorney in a UIM bad faith claim from representing the Plaintiff in the bad faith matter where that same Plaintiff's attorney represented the Plaintiff in the underlying UIM claim.

A major factor in the court's decision was the fact that the Plaintiff's attorney would have to serve as a central fact witness in the bad faith claim with respect to dealings and negotiations with the UIM carrier in the underlying matter.  The court noted that it felt that the Plaintiff's attorney could not effectively represent her clients at the bad faith trial while still serving as a witness.

In its decision the court also noted that the Plaintiff's attorney had advised the court that she could find the Plaintiffs separate bad faith counsel without much trouble.

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

I send thanks to Attorney Lee Applebaum and the other writers of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog at Fineman, Krekstein & Harris for bringing this case to my attention.

Thursday, August 25, 2016

Northampton County Court of Common Pleas Allows Cell Phone/Punitive Damages Claims to Proceed Beyond Summary Judgment (But for Non-Cell Phone Reasons)


Tort Talkers may recall that I recently reported on the trial court decision denying Preliminary Objections filed by a Defendant in the cell phone/punitive damages case of Paszkowski v. Kleintop, No. C-0048-CV-2014-11600 (C.P. North. Co. 2015).  

The Northampton County Court of Common Pleas has now revisited the issue at the summary judgment stage of the same case and issued a decision dated August 1, 2016 in which the Defendant’s Motion for Partial Summary Judgment was denied and the Plaintiff’s Motion seeking an adverse inference against the Defendant for discarding her cell phone/spoliation being held in abeyance for decision by the trial judge.  This summary judgment issue was decided by Judge Craig A. Dally. 

In this matter, the Plaintiff demanded punitive damages in her Complaint based, in part, on the fact that the Defendant was using her cell phone at the time of the accident.  

With its Motion for Partial Summary Judgment, the Defendant argued that she had denied that she was using a cell phone at the time of the accident and that there was no other evidence to otherwise show that she was using her cell phone when the accident occurred.  The Defendant again reasserted that, even there was evidence that she was on her phone at the time, the use of her cell phone would not be enough, under Pennsylvania law, to support a punitive damages award.  

In opposition, the Plaintiff asserted that the evidence of record was sufficient for a jury to possibly conclude that the Defendant was using her cell phone at the time of the crash and that, such evidence, taken with other evidence in the case, such as allegations of excess speed on the part of the Defendant, was sufficient to support a claim for punitive damages.

The Plaintiff was also seeking an adverse inference jury instruction against the Defendant at trial for alleged spoliation of evidence, i.e., specifically, the cell phone in her possession at the time of the accident.  

The Paszkowski court noted that the “question of whether cell phone use is sufficient to sustain a claim for punitive damages has never been addressed by the Pennsylvania Appellate Courts, but it has been addressed by the Common Pleas Courts and our Federal District Court."  

The court went on to review the various decisions in this regard from across the Commonwealth of Pennsylvania in its Opinion.

 After reviewing the decisions, the court distinguished between the use of a cell phone as a phone and a use of cell phone to engage in activity typically associated with text messaging while driving.   The court noted that allegations that a driver was text messaging while driving, would likely cause the driver to avert his eyes from the road or his hands from the steering wheel to send or receive a text message may, without more, be sufficient to demonstrate the grossly negligent or reckless conduct necessary to support a claim for punitive damages.  See Op. at 7.  
 
The court reiterated that, as found by the other courts of Pennsylvania, that “where it is averred or established merely that a driver was using a cell phone at the time of a crash, and not that the use of the cell phone diverted the driver’s skills and/or attention or otherwise caused him to knowingly engage in some risky behavior without regard to the rights or welfare of others, punitive damages are not appropriate.”   See Op. at 7 citing with “see” signal Rockwell v. Knott, 32 Pa. D. & C. 5th 157 (C.P. Lacka. Co. 2013 Nealon, J.) [other citations from other jurisdictions omitted].  

In this matter, the court noted that the Defendant testified at her deposition that she was traveling straight downhill on the road and there were no visual impediments in her path of travel.  However, the Defendant also testified that she did not see the red traffic signal at the intersection until the time of the accident.  The Defendant also admitted that she did not see any vehicles in front of her until the time of the accident.   The Defendant additionally indicated that she was driving her husband’s vehicle, that her seat was not adjusted for height, and that she could not see over the hood.  

The Defendant was noted to have also testified that she did have her cell phone with her at the time of the accident and that she used it to answer a text message while stopped at a different light controlled intersection  prior to the accident.   However, the Defendant denied using her cell phone at the time of the accident.

The court noted that telephone records from the Defendant’s husband’s phone show incoming calls from the  Defendant’s phone at 8:34 p.m. and 8:52 p.m.  The Defendant testified that these two (2) calls occurred after the accident.  

According to the court, the Plaintiff did not offer any evidence in opposition to the motion.  Rather, the Plaintiff simply asserted that the circumstantial evidence of record, specifically that despite a straight downhill view, the Defendant did not see any cars or the red light in front of her, is a sufficient basis for a reasonably jury to conclude that the Plaintiff was using her cell phone for text communication at the time of the accident and that a claim for punitive damages would be supported by such conduct.  

The court ruled that, based upon the record before it, the evidence of record was insufficient as a matter of law to allow a reasonable jury to conclude that the Defendant was using her cell phone to send or receive text messages at the time of the accident.   The court stated that there was no evidence upon which the jury could do anything but surmise that the Defendant was using her cell phone for text communications at the time of the crash.   The court found that the evidence was not sufficient to lift the contention of the Plaintiff out of the realm of speculation.  
 
However, the court still denied the Defendant’s Motion for Partial Summary Judgment on the cell  phone/punitive damages issues under the Motion for Summary Judgment standard of review which requires the court to resolve all doubts in favor of the Plaintiff as the non-moving party.  
 
In this case, the court stated that, notwithstanding the absence of evidence to demonstrate that the Defendant was sending or receiving text messages on her cell phone at the time of the accident, there remained a question of fact regarding the Defendant’s reckless conduct.   In this regard, the court pointed to allegations by the Plaintiff that the Defendant was traveling at high rate of speed in heavy traffic at the time of the accident.   The court also noted that the Defendant was knowingly driving her husband’s vehicle with the driver’s seat in such a position as to preclude the Defendant from fully seeing over the hood of the vehicle, consistently seeing the traffic in front of her, or seeing a red light ahead of her at the time of the accident.  
 
The court felt that a reasonable jury could evaluate these factors and properly conclude that, at the time of the accident, the Defendant was affirmatively engaged in unreasonable conduct and disregard of a risk known to her so obvious and so great as to make it highly probable that harm could follow.  
 
Accordingly, the court stated that, if the Plaintiff was able to establish these facts at the time of the accident, such evidence could probably support an award of punitive damages.   As such, the court denied the Defendant’s Motion for Partial Summary Judgment on the punitive damages issues. 

As noted, the court also held in abeyance the Plaintiff’s Motion for an Adverse Inference Instruction for Spoliation of Cell Phone Evidence for the trial judge to decide.  

 
 Anyone wishing to secure a copy of this decision in Paszkowski v. Kleintop may click this LINK.
 
I send thanks to Attorney Ralph J. Bellafatto of the Bellafatto Law Office in Easton, Pennsylvania for bringing this case to my attention.   

Tuesday, August 23, 2016

Judge Nealon of Lackawanna County Again Reviews Validity of Punitive Damages Claims in Asbestos Litigation

In his recent decision in the asbestos litigation case of Horst v. Union Carbide Corp., No. 2015-CV-1903 (C.P. Lacka. Co. July 26, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed Motions for Summary Judgment filed by various Defendants against punitive damages claims presented by the Plaintiffs.  

After reviewing the general law regarding punitive damages, the court also noted that the appellate courts of Pennsylvania have more specifically ruled that, in asbestos litigation, that the existence of medical articles and trade journal publications discussing the dangers of asbestos inhalation are insufficient to support a claim for punitive damages absent some proof that the asbestos Defendant knew or had reason to know of the content of that literature. 

Judge Terrence R. Nealon
Lackawanna County

 
The court noted that various Motions for Summary Judgment previously filed by some Defendants seeking partial summary judgment with respect to the Plaintiffs’ punitive damages claims were granted in this matter as there was no evidence that any of those Defendants knew or had reason to know of the articles or studies cited by the Plaintiffs and their expert.   However, based upon internal company documentation that certain other Defendants did have a subjective appreciation of the risk of arm, those other Defendants’ Motions in this regard were denied.  

In this particular decision, the court again denied certain Defendants Motions for Partial Summary Judgment but denied another Defendant's motion in a mixed result decision based upon the facts at hand.     

Anyone wishing to review this decision may click this LINK.

Here is a LINK to other Tort Talk posts on other decisions by Judge Nealon in this same asbestos litigation case.

Wednesday, August 17, 2016

Corrected Link for Gowton v. State Farm

Here is a corrected LINK to the Gowton v. State Farm Fire & Casualty Company, No. 2:15-CV-01164-CB (W.D. Pa. June 29, 2016 Bissoon, J.) bad faith decision referenced on Tort Talk yesterday.

I apologize for any confusion caused.

Allegedly Low Settlement Offer, In and Of Itself, Insufficient to Support Bad Faith Claim

In Gowton v. State Farm Fire & Casualty Company, No. 2:15-CV-01164-CB (W.D. Pa. June 29, 2016 Bissoon, J.), the court dismissed the Plaintiff's Complaint after finding that the Plaintiff's conclusory allegation that the carrier refused to pay in the amounts allegedly due in a fire loss claim was insufficient to support a cause of action in bad faith. The complaint also averred at one point that the insurer relied on loss calculations that were unsupportable, without any explanation of why they were inadequate.

The court reiterated the rule under Pennsylvania case law that a low but reasonable estimate of a loss is not bad faith.  Accordingly, the court noted that an unsupported claim that an insurer estimated at too low a figure, by itself, cannot be bad faith.

The court dismissed the Complaint but granted Plaintiff leave to file an amended complaint.


This decision is also notable in that the court upheld the one year contractual limitations period for the filing of suit contained in the policy.

Anyone wishing to review this decision may click this LINK.


I send thanks to the writers of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, including Attorney Lee Appelbaum of the Philadelphia law firm of Fineman, Krekstein & Harris, for bringing this decision to my attention. 

Monday, August 15, 2016

Western Federal District Court Addresses Duty to Defend Under Commercial Liability Policy

In the Federal Western District Court of Pennsylvania case of Acuity v. Knisely & Sons, Inc., No. 3:15-CV-00076-KRG (W.D. Pa. Aug. 9, 2016 Gibbons, J.), the court addressed the carrier’s Motion for Summary Judgment in a declaratory judgment action in which the carrier sought a determination as to its rights and obligations under a commercial general liability insurance policy.  

According to the Opinion, the underlying matter arose out of a construction contract and issues related to the work performed thereunder.   The Opinion reports that a company installed a boiler in a waste water treatment plan which allegedly did not function properly.   At some point, the waste water treatment plant retained Knisely to service the boiler in an attempt to improve its function.  

When this failed, the waste water treatment plant commenced an underlying suit against the installer of the boiler.   The installer responded by filing a Joinder Complaint against Knisely and other companies who performed work on the boiler.  

Acuity sought a declaratory judgment that it has no duty to defend or indemnify Knisely with regard to the underlying action.  Acuity asserted that coverage was not triggered because the underlying Complaint did not allege an “occurrence” as defined by the policy, the underlying Complaint did not allege “property damage,” that coverage was precluded under the policy’s contractual liability exclusion, and that coverage was precluded by the policy’s impaired property/property not physically injured exclusion.  

The court granted the carrier’s Motion for Summary Judgment based upon its first contention, pertaining to an allegation that the underlying Complaint did not allege an “occurrence” as defined in the policy and, as such, deemed it unnecessary to address the carrier’s remaining arguments.  

 In its Opinion, the court outlined current status of the law pertaining to a duty to defend and/or indemnify under a liability policy.  

Anyone wishing to review the Federal Western District Court's decision in Acuity v. Knisely may click this LINK.
 

I send thanks to Attorney Brigid Q. Allford of the Camp Hill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.




Punitive Damages Claims Allowed to Proceed in Northampton County Trucking Accident Case


In the Northampton County Court of Common Pleas case of Scarpone v. Seaton, No. C-48-CV-2016-1965 (C.P. North. Co. Aug. 1, 2016 Roscioli, J.), the court allowed punitive damages to proceed beyond Preliminary Objections against a Defendant driver and his employer in a trucking accident case.

According to the Opinion, the Plaintiff pled in the Complaint that the Defendant driver was driving a freightliner at an excessive rate of speed in an urban area and ran a red light at the time of the accident.

The Defendant filed Preliminary Objections against the tractor trailer driver and his employer.

The Court overruled the Preliminary Objections after finding that the facts pled were sufficient to support claims for punitive damages against the Defendant tractor trailer driver.

The Court also allowed the punitive damages claims to proceed against the driver's employer.  The court noted that punitive damages could proceed under the facts alleged on both the vicarious liability claims as well as direct liability claims against the trucking company relative to alleged negligent training and/or supervision.

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

Thursday, August 11, 2016

Summary Judgment Denied In Lackawanna County Premises Liability Case

In his recent Opinion in the case of Gunsior v. K Investments, et.al., No. 2011-CV-4742 (C.P. Lacka. Co. May 25, 2016 Minora, S.J.), Lackawanna County Senior Judge Carmen D. Minora addressed a summary judgment motion filed by Defendant Quaker Steak and Lube restaurant in a slip and fall matter.  

Defendant Quaker Steak first asserted that it was entitled to summary judgement in that the injured Plaintiff, initially a business invitee, should be legally determined to be a trespasser after improperly exiting premises over a guardrail and through landscaping.   The Defendant asserted that, as such conduct was not authorized, the only duty owed to the alleged Plaintiff was that the landowner avoid willful or wanton misconduct towards alleged trespassers.    

Senior Judge Carmen D. Minora
Lackawanna County
 
After reviewing premises liability law regarding the status of the injured party plaintiffs (trespasser, licensee, invitee) and the duty of care owed to different types of plaintiffs, Judge Minora noted that, generally speaking, the determination of whether or not a person is a trespasser, licensee, or a business invitee, is one of fact typically left for a jury’s determination.   The court found that issues of fact in this regard precluded the court from entering summary judgment.  

As a second basis for its Motion for Summary Judgment, Quaker Steak asserted that the Plaintiff chose a route to the parking lot which was unsafe as opposed to the safer alternative route that the Plaintiff had previously used to enter the premises earlier.   In this regard, Quaker Steak asserted the Plaintiff’s comparative negligence as a result of this choice of route barred the Plaintiff recovery.  

The court likewise found that issues of fact prevented it from entering summary judgment in this regard. 

Anyone wishing to review this decision may click this LINK.

Monday, August 8, 2016

Summary Judgment Denied on Vicarious Liability Issues in Shooting Case

In his recent Opinion in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. July 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Motion for Summary Judgment in a shooting case on issues of whether or not a father and the father’s sporting goods business was vicarious liable for a shooting death caused by the father’s son as a result of a fatal shooting.  

The court found issues of fact precluding the entry of summary judgment against the father and/or the sporting goods business Defendants.  

This Opinion provides a thorough review of the law pertaining to vicarious liability for criminal acts of third persons in the employment of others.  

The Opinion also reviews the parameters under which information gathered a deposition in which the shooter Defendant repeatedly asserted his Fifth Amendment privilege against self-incrimination in support of a Motion for Summary Judgment.  

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

Friday, August 5, 2016

Pennsylvania Superior Court Affirms Four Year Statute of Limitations for UM Claims [Non-Precedential]




In its non-precedential Memorandum and Opinion in the case of Erie Insurance Exchange v. Bristol, No. 1119 EDA 2015  (Pa. Super. May 7, 2016) (Op. by Olson, J.)[Non-precedential], the Pennsylvania Superior Court again affirmed that the statute of limitations for a uninsured motorist claim was four (4) years.  

Notable, the court also confirmed that a Plaintiff must file a Petition to Compel Arbitration to toll the statute of limitations in a matter that is languishing in which the parties do not agree to a neutral arbitrator.    

In ruling on the above issues, the court relied upon the precedential case of Hopkins v. Erie Insurance Exchange, 65 A.3d 452 (Pa. Super. 2013).  

Note, however, that Judge Ott concurred in the Opinion, asserting that the language addressing the tolling of the statute of limitations for uninsured motorist benefits claims in the Hopkins case was dicta.  Judge Ott recommended announcing a clear rule of law outlining the requirement of filing a Petition to Appoint an Arbitrator and Compel Arbitration in order to toll the statute of limitations.   

Anyone wishing to review a copy of Majority Opinion in this non-precedential decision may click this   LINK.
 
Judge Ott's concurring Opinion can be viewed HERE.
 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (June 21, 2016). 

Dauphin County Court of Common Pleas Addresses Timing of Facebook Discovery


An interesting Facebook Discovery decision was handed down Judge Andrew H. Dowling by Order only in the Dauphin County case of Vogelsong v. Cruz-Ramirez, No. 2015-CV-234 CV (C.P. Dauph. Co. July 29, 2016 Dowling, J.).

According to information gathered on the case, the issue before the court was whether defense counsel had to provide to Plaintiff's counsel, in response to Plaintiff's specific discovery request, all social media investigation completed on the Plaintiff before her deposition.

Judge Andrew Dowling of Dauphin County ordered the defendants to provide all social media research or investigation including Facebook, Linkedln, Twitter, You Tube, Instagram,Tumblr or any other similar research. The defendants' objection that this investigation is the same as surveillance and should not be produced until after plaintiff's deposition was overruled. The defense objection that it was work product was also overruled.

In its Order the court did also hold that the defense did not need to produce video surveillance completed on the Plaintiff prior to her deposition. 


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

I send thanks to Attorney Robert Claraval of the Claraval Law Office in Harrisburg, PA for bringing this case to my attention.

Wednesday, August 3, 2016

Elements of a Proper Declaratory Judgment Action Discussed by Judge Sklarosky of Luzerne County

In his recent decision in the case of Gorzkowski v. Modern Gas Sales, Inc., No. 14465 of 2013 aff’d in non-precedential decision No. 163 M.D.A. 2015 (Pa. Super. 2015), Judge Joseph Sklarosky, Jr. of the Luzerne County Court of Common Pleas addressed the law regarding proper declaratory judgment actions and sustained Preliminary Objections in the nature of a demurrer against a declaratory judgment Complaint.  

This matter arose out of a dispute over the ownership of certain stock certificates which was made part of a declaratory judgment action.   The Defendant filed Preliminary Objections in the nature of a demurrer.  

Judge Sklarosky noted that declaratory judgment actions serve as judicial searchlights switched on at the request of a litigant to illuminate an allegedly existing legal right, status or other relation.   Noting that the law allows a party to seek a declaratory judgment in order to declare the legal rights, duties, or status of the parties to an action only if such a judicial declaration will aid in the determination of a genuine justiciable controversy.  

Stated otherwise, the court found that a declaratory judgment will not be allowed to determine rights in anticipation of an event uncertain to occur.  

Finding that no actual controversy existed or was imminent or inevitable, the court granted the Defendant’s demurrer to the declaratory judgment Complaint filed.   In so ruling, the court declined to essentially render an advisory opinion on the declaratory judgment Complaint which may ultimately prove to be purely academic given that the underlying anticipated events at issue may never occur.  

As noted above in the citation, Judge Sklarosky’s Opinion was affirmed on appeal in a non-precedential decision by the Pennsylvania Superior Court. 

Anyone wishing to review Judge Sklarosky’s trial court Opinion may contact me at dancummins@comcast.net.

Monday, August 1, 2016

Punitive Damages Claims Allowed to Proceed in Northampton County Cell Phone Case


A cell phone punitive damages decision from back in December of 2015 has been brought to my attention in the form of Paszkowki v. Kleintop, No. C-48-CV-2014-11600 (C.P. Northampton Co. Dec. 11, 2015 Roscioli, J.).

In Paszkowski, the Plaintiff included a claim for punitive damages in the Complaint based upon allegations that the Defendant driver was traveling at a high rate of speed in heavy traffic while distracted by cell phone use for an extended period of time whereby the Defendant failed to notice stopped vehicles at a red light in clear view of the Defendant at the time of the collision.  The Plaintiff further alleged that the Defendant engaged in such conduct while aware of the dangers of doing so.

After reviewing the general rules pertaining to valid punitive damages claims, after acknowledging that other courts have dismissed punitive damages allegations in cases where a Plaintiff has more simply alleged that a defendant driver was using a cell phone at the time of the accident, particularly for a telephone conversation, the court here nevertheless found that the Plaintiff had pled sufficient additional facts to allow the punitive damages claim to proceed forward.

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

I send thanks to Attorney Ralph Bellafatto of the Bellafatto Law Office in Easton, PA for bringing this decision to my attention.