Friday, December 29, 2017

TORT TALK PRACTICE TIP


Use Conclusion Section Of a Brief for More than a Conclusion

Some attorneys may have a ­misconception that the Conclusion section of a brief can only be utilized for a one-line statement of the relief requested, i.e., "For the above-stated reasons, it is respectfully requested that the plaintiff's motion to for summary judgment be granted."
The very last sentence of the entire brief should certainly be a respectful request for the granting of the relief requested.  However, there is no rule stating that one is precluded from utilizing the Conclusion of a brief as one last great opportunity to encapsulate your client's legal argument in an additional sentence or two or three.

An excellent way to accomplish is to recast your "Question Presented" as a strong final statement that the relief requested should be allowed by the court.

Thursday, December 28, 2017

Motion to Remand Post-Koken UIM/Bad Faith Case Back to State Court Denied

In the case of Carney v. GEICO, No. 2:17-cv-01486 (W.D. Pa. 2017 Mitchell, Mag. J.), a Federal District Magistrate Judge recommended a denial of a Plaintiff’s Motion to Remand a post-Koken matter to state court.  

The case involved a suit by the Plaintiff for breach of contract in a UIM claim along with claims of bad faith.  The central issue of the case revolved around a minor Plaintiff’s residency.   More specifically, if the minor Plaintiff resided with her grandparents, the minor Plaintiff would be able to stack UIM benefits.  According to the Defendant carrier, if it was determined that the minor Plaintiff did not reside with her grandparents, stacking would not be available.  

The Defendant carrier removed the case to federal court. The Plaintiff responded with a Motion to Remand asserting that this matter was essentially a declaratory judgment action that did not belong in federal court.  

In issuing his report and recommendation, the United States Magistrate Judge noted that federal courts routinely resolve issues of state law relating to insurance, including UIM benefits and bad faith claims.   As such, the Motion to Remand was denied.  

Anyone wishing to review this decision may click this LINK.
 

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers McDonnell Hudock & Guthrie for bringing this decision to my attention. 

Wednesday, December 27, 2017

The 2017 TORT TALK TOP TEN


Here is the annual 2017 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:

1.         Elements of a Bad Faith Claim
In its decision in the bad faith case of Rancosky v. Washington Nat'l Ins. Co., No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

The Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of (1) that the carrier did not have a reasonable basis for denying benefits under the policy, and (2) that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to confirm that evidence of a motive of self-interest or ill will was not a prerequisite for a Plaintiff to prevail on a statutory bad faith claim. 

The Majority Opinion written by Justice Baer can be reviewed HERE.

Chief Justice Saylor's Concurring Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.


2.         Evidence of Intoxication



In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), which arose out of a motor vehicle v. pedestrian accident matter, the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person's blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court's discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court's related assessment of whether the evidence establishes the party's unfitness to act in light of the alleged intoxication.

The Court's Majority Opinion, Concurring Opinion, and Dissenting Opinion can be viewed at this LINK.


3.         Attorney-Client Privilege

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the granting of a motion to compel surrounding a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney/client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm.  It was noted that the public relations firm was not a part of the team offering legal advice.  

The court also found that the work product protection was waived for the same reason.  

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney/client privilege and the work product privilege.

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


4.         Use of Powerpoint at Trial

In the case of W.C. v. Janssen Pharmaceuticals, Inc., 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court.   This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.  

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


5.         Dead Man’s Rule

The Pennsylvania Superior Court’s provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  
Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.   

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


6.         Statute of Limitations for a UM Arbitration Case


In the case of Bristol v. Erie, No. 124 MAP 2016 (Pa. Nov. 22, 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting) the Pennsylvania Supreme Court held that the statute of limitations in an uninsured motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate.

 This was a 6-1 decision with Justice David Wecht dissenting on procedural grounds.

The Court delineated the specific issue before it as involving the question of when the statute of limitations begins to runs for a court action in an uninsured (UM) motorist claim arising out of an automobile insurance policy containing an arbitration agreement. 

The Pennsylvania Supreme Court noted that this was an issue of first impression in its Court.

The Bristol decision reverses the Pennsylvania Superior Court's previous ruling in Hopkins v. Erie, which held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

In its analysis, the Pennsylvania Supreme Court noted that the mandates of Pennsylvania statute of limitations law provide that the statute of limitations begins to run from the time a cause of action accrues or arises. 

The Supreme Court noted that a cause of action in a UM context accrues or arises when a carrier is alleged to have breached its contract of insurance.  The Court more specifically held that an uninsured motorist (UM) claim begins when a carrier denies the claim or refuses to arbitrate.

Given that the carrier had not denied coverage or refused to arbitrate in this particular case, the court ruled that the lower courts had erred in granting summary judgment in favor of the carrier on its statute of limitations argument.

The Majority Opinion from Bristol can be read HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.


7.         Cell Phone Use in a Motor Vehicle Accident




Another recurring issue in civil litigation matters that continued over the past year is the extent to which cell phone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed Order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017 McFadden, J.), the court allowed a claim punitive damages to proceed beyond the Preliminary Objections stage in a case where the Plaintiff alleged that the Defendant rear ended the Plaintiff's vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the Plaintiff had not produced evidence in support of this claim.

Anyone wishing to review this decision may click this LINK.

In the Federal Court case  of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), the court held that evidence of a plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible at trial.

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


8.         Limited Tort

In its latest review of limited tort law in the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the Pennsylvania Superior Court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

The court in Vetter more specifically noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

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

9.         Post-Koken Issues

A number of recurring issues in Post-Koken automobile accident matters continued to be litigated across the Commonwealth of Pennsylvania. 

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a Post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation. 

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation.  The Stepanovich decision suggests, but did not decide, that Post-Koken claims could be tried together. 

Unfortunately, in 2014, the Pennsylvania Supreme Court inexplicably denied allocatur in Stepanovich, thereby squandering a great opportunity to provide the bench and the bar with much needed guidance on important Post-Koken issues.

In Post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and/or stay orders relative to the bad faith claims.  There is a split of authority amongst the trial courts, but the federal courts seem to be trending towards denying motions to sever and stay bad faith claims.

Please check out the Tort Talk Post-Koken Scorecard at this LINK to review the cases in this regard.


10.       Jury Instructions in Post-Tincher Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.

These suggested jury instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.


The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.



Thursday, December 21, 2017

ARTICLE: Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends

The below article of mine recently appeared in the December 14, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:
 
Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends
 
By Daniel E. Cummins
Pennsylvania Law Weekly
December 14, 2017

Another year of litigation has come to a close. Given that precedent has a way of repeating itself here’s a look back at notable decisions from the past year.

Elements of Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

In Rancosky, the Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Property & Casualty Insurance, 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of: that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to note that evidence of a motive of self-interest or ill will was not a prerequisite for a plaintiff to prevail on a statutory bad faith claim.

Dead Man’s Rule

The Pennsylvania Superior Court provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930, in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the defendant’s participation in discovery when no depositions or Interrogatories were completed.

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a new matter pursuant to Pa. R.C.P. 1030 in order to be preserved.

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.

Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person’s blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Coughlin case arose out of a motor vehicle versus pedestrian accident.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court’s discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court’s related assessment of whether the evidence establishes the party’s unfitness to act in light of the alleged intoxication.

Use of Powerpoint at Trial

The use of visually stimulating powerpoint exhibits at trial has become the norm in the digital age.

In the case of W.C. v. Janssen Pharmaceuticals, 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017, Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court. This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the closing argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.

Cellphone Use

Another recurring issue in civil litigation matters is the extent to which cellphone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.), the court allowed a claim punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff alleged that the defendant rear-ended the plaintiff’s vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the plaintiff had not produced evidence in support of this claim.

Attorney-Client Privilege

The attorney-client privilege and the attorney work product doctrine were both reviewd in the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017, Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.). The Pennsylvania Superior Court affirmed the granting of a motion to compel the production of a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney-client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm. It was noted that the public relations firm was not a part of the team offering legal advice.

The court also found that the work product protection was waived for the same reason.

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney-client privilege and the work product privilege.

Limited Tort

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court’s decision that a plaintiff’s insomnia did not amount to a serious impairment of a body function for a limited tort the plaintiff under the facts presented.

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

Post-Koken Issues

A number of recurring issues in post-Koken automobile accident matters continued to be litigated across the commonwealth of Pennsylvania.

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation.

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation. The Stepanovich decision suggests, but did not decide, that post-Koken claims could be tried together.

In post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and stay orders relative to the bad faith claims. There is a split of authority among the trial courts, but the federal courts seem to be trending toward denying motions to sever and stay bad faith claims.

A Look Ahead into 2018

As this year comes to an end, there are also important rule changes and potential important decisions to anticipate in 2018.

One decision to keep an eye out for would be the one in the Pennsylvania Supreme Court case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017). The court is expected to address issues pertaining to the validity of household exclusions and stacking issues with respect to automobile insurance policies.

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court issued an order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she was suffering from the disease for years before filing the suit.

The court has agreed to address the more specific issue of whether the plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the plaintiff “did not and was financially unable to, confirm [the defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”

A split Pennsylvania Superior Court panel previously ruled in this case that the plaintiff’s claims were barred by the two-year statute of limitations.

Civil litigators should also be aware that the Public Access Policy of the Unified Judicial System of Pennsylvania is about to go into effect and that they may face sanctions if they do not comply with the mandates of this new policy pertaining to the filing of documents with the court.

By way of background, with the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective Jan. 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.”

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other certification documents will have to be filed as well. More information on this new policy may be found on the AOPC’s website or at a number of CLE courses being held around the commonwealth.

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.  Attorney Cummins also provides Mediation Services at www.CumminsMediationServices.com. Contact him at dancummins@comcast.net.
 

Wednesday, December 20, 2017

Court Addresses Motion to Abate Regarding Failure to Substitute Personal Representative for Deceased Plaintiff in a Civil Litigation Matter

In the case of Nye v. Scheland, No. 08-CV-3839 (C.P. Lacka. Co. Nov. 11, 2017, Nealon, J.), the court addressed a motion to abate an action based upon allegations of a Plaintiff's failure to timely substitute a personal representative for the deceased Plaintiff. 

This matter generally involved a podiatry malpractice action.

The Defendant filed the motion pursuant to 20 Pa.C.S.A. Section 3375 and Pa.R.C.P. 2352 and 2355, and asserted that the court must abate the action unless the delay in the appointment and/or substitution of a personal representative for the deceased Plaintiff was adequately explained.

Judge Nealon reviewed the law surrounding motions for abatement and the appointment of personal representatives following the death of a party.  Generally speaking, the above-noted law and Rules allow for a one year period to complete the task of appointing a personal representative for a deceased party in a civil litigation matter.  However, that one year period does not begin to run until the opposing party files a Suggestion of Death with the court.

As the Defendant in this matter did not file a Suggestion of Death, the court found that the one year time period to appoint a personal representative did not begin to run.  Moreover, the record before the court confirmed that a personal representative was appointed to the estate in any event.

Judge Nealon emphasized that the applicable law only required that a personal representative be appointed as a representative of the estate of the deceased within one year;  that is, there was no one year requirement to substitute the personal representative as a party in the litigation.

In the end, the court denied the Defendant's motion to abate and granted the Plaintiff's motion to substitute the personal representative as a party in place of the deceased Plaintiff.

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

Tuesday, December 19, 2017

No Duty Owed For Inherent Risks Associated With Downhill Skiing



In the case of Cole v. Camelback Mountain Ski Resort, No. 3:16-CV-1959 (M.D. Pa. Oct. 16, 2017 Mariani, J.), the court granted a Motion to Dismiss in a downhill skiing injury case.  

In so ruling, Judge Mariani noted that a ski resort owes no duty of care to a skier for any in inherent risk of downhill skiing.  The court noted that accidentally striking an object while skiing down a slope is an inherent of downhill skiing.   The exact nature of the objects struck is not material.  

The court also noted that the fact that the ski resort added padding to the object that the Plaintiff struck did not give rise to liability for a negligent undertaking.   To rule otherwise would deter voluntary safety efforts on the part of a ski resort.

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

 I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith and the writer of the Drug and Device Law blog for bringing this case to my attention.  

Friday, December 15, 2017

SENDING YOU HAPPY HOLIDAY WISHES


 
The Scranton Electric Building
(My window is the top left rounded one)

 
 


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

HOPING THAT 2018 BRINGS YOU ALL THE BEST THAT LIFE HAS TO OFFER.

THANK YOU FOR READING AND SUPPORTING TORT TALK,

Dan Cummins



Thursday, December 14, 2017

Number of Recurring Auto Accident Litigation Issues Addressed in Federal Middle District Court Decision

In the case of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), is notable for decisions by the court on many common Motion In Limine issues arising out of a motor vehicle accident litigation.   Such notable decisions include the following:
 
- There was no intentional destruction of relevant documents to justify a finding of spoliation. 

- A human factors expert is not qualified to testify about accident reconstruction.

Prior drunk driving tickets were excluded as unduly prejudicial where alcohol had nothing to do with the accident in question.   However, other driving tickets were admissible as relevant to the negligent hiring claim. 

- Defendant’s expert testimony concerning the effect of Plaintiff’s blood alcohol content, although not supported by other exigent evidence, was found to be sufficiently thorough to be admissible.  

- Since the Plaintiff was seeking to recover for permanent injuries, evidence of prior drug abuse was found to be relevant on the issue of life expectancy.  

- Evidence of the Plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible.

- Plaintiff’s traffic citations with respect to the accident were found to be admissible under the Federal Rules of Evidence.  

- Where the Plaintiff is claiming injuries that are the same as he claimed in a prior dissimilar accident, the prior accident is admissible as relevant to the issue of causation of those injuries without regard to the similarity of the facts of the separate accidents.   
 

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 Reed Smith and the writer of the Drug and Device Law blog for bringing this case to my attention.   

 


 

Tuesday, December 12, 2017

Regular Use Exclusion Upheld, Bad Faith Claim Denied In Eastern District Court Case

In the case of Reeves v. The Travelers Company, No. 16-6448 (E.D. Pa. Oct. 30, 2017 Baylson, J.), the court upheld a carrier's regular use exclusion and entered summary judgment on a plaintiff's bad faith claims.

At the time of the accident, the plaintiff was a passenger in a truck owned by his employer while the truck was en route from a work meeting to a work site. 

The plaintiff admitted in discovery that he drove or rode in his employer's vehicles on 90 percent of his workdays.  The court rejected the plaintiff's argument that he only used 3 of the employer's 17 vehicles and his argument that his work duties were performed outside of the vehicle.

The court noted that the regular use exclusion has been held to apply to both passengers and drivers.  The court also referenced cases where the regular use exclusion was still applied despite the fact that an employee's work duties were performed outside of a vehicle.

The court additionally found no basis for a bad faith claim after finding that the carrier investigated and denied the claim based upon a reasonable reading of the policy.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Nov. 21, 2017).

Friday, December 8, 2017

LINK TO COMPLIMENTARY COPY OF TORT TALK 2017 CIVIL LITIGATION UPDATE BOOKLET


Here is a LINK to a complimentary copy of the 62 page Tort Talk 2017 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 2017 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 free of charge 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, your local Pro Bono Office, 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 me with notable cases to highlight on Tort Talk.  All is much appreciated.



Thursday, December 7, 2017

Conclusory Bad Faith Allegations Result in Federal Court Complaint Being Dismissed With Leave to Amend

In the case of Irving v. State Farm Mut. Auto. Ins. Co., No. 17-1124, (E.D. Pa. Oct. 4, 2017 Slomsky, J.), the court dismissed a Plaintiff’s auto insurance bad faith Complaint with leave to amend.


In this underinsured motorist benefits action, the insured realized a recovery from the tortfeasor’s liability insurer, after which the UIM carrier made a settlement offer.  The insured rejected the UIM carrier’s offer and sued for bad faith and breach of contract.

In the Complaint, the insured enumerated several allegations of the insurer’s bad faith conduct. The insured asserted the insurer acted unreasonably and unfairly, failed to advance a reason for its denial of the full value of the claim, intentionally and/or recklessly disregarded the insured’s injuries, and refused to pay benefits owed under the policy.  The carrier moved to dismiss the bad faith claim.

The Court stated “[a] complaint must do more than allege a plaintiff’s entitlement to relief, it must ‘show’ such an entitlement with its facts.”

The Court held that the undisputed facts only show a disagreement between the parties to negotiate and settle the UIM claim. Furthermore, “[t]hese facts do not show that [the insured] has a plausible claim for bad faith because they do not shed light on the reasonableness of [the insurer’s] actions.”

The Court reasoned that the insured’s allegations are merely conclusory and are thus insufficient to state a claim for bad faith. The Court then dismissed the bad faith claim, but gave the insured twenty days leave to amend its complaint.

I do not have a copy of this case. 

I send thanks to Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.

Tuesday, December 5, 2017

Pennsylvania Supreme Court Agrees to Address Issue of Duty of Care Owed to College Athletes


According to an article in today's Legal Intelligencer by Max Mitchell, the Pennsylvania Supreme Court issued an Order on November 29, 2017 agreeing to hear an appeal in the case of Feleccia v. Lackawanna College, No. 359 MAL 2017 (Pa. 2017), which involved the issue of what standards colleges have to adhere to in order to meet their duty of care towards student-athletes engaged in college sports.

The Feleccia case arose out injuries to two college students at a pre-season football practice. 

At the trial court level in Lackawanna County, Judge James A. Gibbons ruled on a motion for summary judgment that waivers of liability executed by the athletes barred their recovery.  The trial court also ruled that the student-athletes had assumed the risk of their own injuries in playing college football.  Here is a LINK to the Tort Talk post on the trial court decision.

The Pennsylvania Superior Court reversed after finding that issues of fact precluded the entry of summary judgment.  The Tort Talk post on that decision can be viewed HERE

The Pennsylvania Supreme Court noted that the more specific issues presented by the case involved whether colleges are required to have medical personnel on hand at athletic events, and whether clauses releasing the school from any and all liability is enforceable.

The Supreme Court's Order granting the appeal and stating the issue can be viewed HERE.

Source:  "Justices Take Up Case on Colleges' Duty of Care to Student-Athletes," by Max Mitchell of the Legal Intelligencer (Dec. 5, 2017).

New Trial Ordered Given Statute of Limitations Issues

In the case of Shiflett v. Lehigh Valley Health Network, Inc., 2017 Pa. Super. 354 (Pa. Super. Nov. 9, 2017 Solano, Scogan, and Platt, J.J.) (Op. by Solano, J.), the court upheld a liability verdict in favor of a Plaintiff in a medical malpractice case but sent the case back for a new trial on certain issues of damages.  

In its decision, the court noted that the Plaintiffs were improperly allowed to amend their Complaint to assert a new cause of action after the statute of limitations had expired.  

The Superior Court found that the new theory was based on a different time period and different facts that were not at issue in the original Complaint.  

In this regard, the Superior Court noted that vague, generalized negligence allegations could not establish a relation back to the original Complaint, particularly where, as here, the Defendants properly filed Preliminary Objections to those allegations.  

The Superior court sent the case back to the trial court for a new trial on damages as the general verdict on damages that was entered in the first trial could not be separated into amounts that were related to the proper time periods not barred by the statute of limitations.  The court noted that the new trial would be limited to damages because the error on the time barred claims did not affect the liability issues on the other claims.

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 Reed Smith and the writer of the Drug and Device Law blog for bringing this case to my attention.  

 


 

Monday, December 4, 2017

ARTICLE: Mandated Coverages for Uber and Lyft Vehicles

The below article written by my associate attorney, Stephen T. Kopko, and myself appeared in the November 16, 2017 edition of the Pennsylvania Law Weekly.  It is republished here with permission.

New Law:  Mandated Coverages for Uber and Lyft Vehicles
By Daniel E. Cummins and Stephen T. Kopko | November 16, 2017
Pennsylvania Law Weekly

Recent news stories have emphasized the emerging trend of transportation network companies, such as Uber and Lyft, around the world. These types of ride-sharing companies are continuing to develop across the commonwealth of Pennsylvania as well.
Recent news stories have emphasized the emerging trend of transportation network companies, such as Uber and Lyft, around the world. These types of ride-sharing companies are continuing to develop across the commonwealth of Pennsylvania as well.

This increasing use of transportation network companies by the public led the Pennsylvania General Assembly to pass legislation last to regulate such businesses. Of note are the statutory requirements for insurance coverages mandated for transportation network companies, such as Uber and Lyft, and their drivers.

A New Law

Senate Bill 984 was signed by Gov. Tom Wolf on Nov. 4, 2016. This law relates to the operation of ride-sharing companies in the commonwealth of Pennsylvania. Under this bill, certain sections of Pennsylvania statutes were amended to include provisions and regulations related to these ride-sharing companies.
The new law can be found at both 66 Pa.C.S.A. Section 2601, et al., and 53 Pa.C.S.A.  §57A01, et al., and is titled “Transportation Network Companies.”

The new law defines what a transportation network company is and identifies the relevant driver(s) included under the ambit of the statute. This new law also outlines a list of qualifications and standards that the company must meet before being permitted to operate in the commonwealth of Pennsylvania.

Insurance Coverage Requirements

The new law also outlines the insurance coverage that either the driver of a ride-sharing vehicle must possess, or that the transportation network company must provide, to cover both the driver of the vehicle and any passengers that may use the service.
The “financial responsibility requirements” and the “Insurance requirements” mandated under this new law can be found at both 66 Pa.C.S.A. Section 2603.1 and at 53 Pa.C.S.A. Section 57A07. The language of each statute is essentially identical.

According to the provisions under 53 Pa.C.S.A. 57a07 (a), a “transportation network company driver or transportation network company on the driver’s behalf shall maintain primary automobile insurance that recognizes that the driver is a transportation network company driver or otherwise uses a vehicle to transport passengers for compensation.”
The new legislation then breaks down different scenarios and identifies what insurance mandates apply to each situation. These scenarios include where the driver of the vehicle does not have passengers and is logged into the transportation network company network (presumably applying to the situation where the driver is on the way to pick up a fare), and where the driver of the vehicle does have passengers.

Under the statutory language found at 53 Pa.C.S.A. 57a07(b) or 66 Pa.C.S.A. Section 2603.1(a)(2), where an Lyft or Uber driver is logged onto the digital network and is able to receive transportation requests but is not yet actually engaged in a prearranged ride, that driver must be covered by a policy providing bodily injury liability coverage of $50,000 per person/$100,000 per accident, along with $25,000 in property damage coverage. The insurance policy covering this scenario is also required to offer first party medical benefits coverage of at least $5,000 for the driver and $25,000 for any pedestrians injured.
Under the separate scenario where a Lyft or Uber driver has been engaged in a prearranged ride and does have a passenger in the vehicle, the statutory language found at 53. Pa.C.S.A. 57a07(c) and 66 Pa.C.S.A. Section 2603.1(a)(3)  requires that the applicable liability policy contain coverage of at least $500,000 for death, bodily injury and property damages claims. The policy must also provide for first party medical benefits coverage of at least $5,000 for the driver and $25,000 for any passengers or pedestrians injured.

These coverages, separate from the driver’s inapplicable personal automobile insurance coverage, may be secured or supplied either by the driver of the car, the transportation network company, or any combination of the two, see 53 Pa.C.S.A 57a07 (d); 66 Pa.C.S.A. Section 2603.1(a)(2)(iii);  66 Pa.C.S.A. Section 2603.1(a)(3)(iii).   

Priority of Coverages

One issue that has arisen with companies such as Uber and Lyft is the extent to which an insurance carrier providing personal automobile insurance coverage to a person who chooses to use a personal vehicle in a ride-sharing business capacity may deny coverage under that policy.
Importantly, 53 Pa.C.S.A57a07 (f) and 66 Pa.C.S.A. Section 2603.1(a)(4)  both provide, as follows: “Primary insurance. Coverage under an automobile insurance policy maintained under this section shall be primary and not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required to first deny a claim.”

As such, the statutory framework confirms that a Lyft or Uber driver’s separate personal automobile insurance coverage typically will not come into play if the driver is involved in an accident resulting in personal injuries or property damages.
This Pennsylvania law specifically provides that carriers that write personal automobile insurance in the commonwealth may exclude coverage, including liability coverage, property damage coverage, along with UM/UIM benefits and first party medical benefits coverage, for accidents involving an Uber or Lyft driver involved in an accident that occurs while its insured driver is logged into the transportation network company’s network and seeking customers or is engaged in a prearranged ride with a customer. See  53 Pa.C.S.A 57a07 (l)  and 66 Pa.C.S.A. Section 2603.1(a)(2). The law also upholds the right of a carrier who has excluded coverage to also assert that it has no duty to defend any claims arising out of an accident involving a Lyft or Uber vehicle as well.

Accordingly, the right of personal automobile insurance carriers to deny coverage in cases involving accidents arising out of the use of personal vehicles for transportation network companies has been upheld in the regulatory scheme passed by the Pennsylvania Legislature.
The law does otherwise also confirm that nothing in its provisions prevents a personal automobile insurance carrier from providing coverage for drivers engaged in Uber or Lyft activities should the carrier wish to sell that type of coverage.

As a protective measure for the public at large, the law additionally imposes duties upon the transportation network company to ensure that the mandated insurance coverage is in place prior to allowing a driver to drive for the company.
The statutes also otherwise provide that where the insurance that may have been secured by a driver for Uber or Lyft rides has lapsed or is inadequate, then the insurance coverage maintained by the transportation network company shall provide the coverage required by this law and the transportation network company’s carrier would have the duty to defend the claim.

Other Notable Provisions

In other notable provisions under the statute, it is provided that a transportation network company or a driver may not request or require a passenger to sign a waiver of potential liability for personal injury or property damage claims.

Nor can the transportation network company require any of its drivers to sign any waivers for potential liability for personal injury or property damage claims as a condition for entering into a lease agreement,  see 53 Pa.C.S.A. Section 57A07(m).
It is noted that, as of this time, there has been no case law handed down interpreting this statute since it was passed almost a year ago in November 2016. However, it can be anticipated that, as the use of Uber and Lyft continues to rise in Pennsylvania, insurance coverage decisions are likely to be generated in the unfortunate situation of an accident involving such a ride-sharing vehicle.

 

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. Cummins also provides Mediation Services at Cummins Mediation Services.  

Stephen T. Kopko is an associate with the firm who focuses on the defense of auto accident and premises liability matters.