Tuesday, October 17, 2017

Pennsylvania Superior Court Upholds Exclusion of Coverage for Resident Non-Family Members Not Listed On Auto Policy

In the case of Safe Auto Insurance v. Oriental-Guillermo, 2017 Pa. Super. 297 (Pa. Super. Sept. 18, 2017) (Dubow, J., Solano, J., and Ford Elliot, P.J.E) (Majority Op. by Dubow, J.) (Dissenting Op. by Ford Elliot, P.J.E.), the Pennsylvania Superior Court ruled that a automobile insurance policy issued by Safe Auto that excluded coverage for non-family members who live with the vehicle owner but who were not specifically included under the policy is enforceable under Pennsylvania’s Motor Vehicle Financial Responsibility Law.  

The panel essentially ruled that the policy was consistent with the MVFRL because that statute places the burden of making sure a driver is insured on the vehicle owner, and not upon the insurance companies.

The court rejected the Plaintiff’s argument that Safe Auto’s provision violated the mandate of the MVFRL of having an owner ensure that all drivers are covered by insurance.   The court noted that the MVFRL does not require a shifting of the burden to the insurance companies to discover the identities of resident, non-family member insureds who may have access to an insured’s vehicle.  
 
Rather, the court felt that that burden was more appropriately placed in the hands of the insured.  
 
 
The Majority Opinion written by Judge Dubow can be viewed HERE.

The Dissenting Opinion by Judge Ford Elliott can be viewed HERE.


Source: Article “Superior Court Rules Unlisted Resident Driver Exclusion is Okay” by Max Mitchell. The Legal Intelligencer (September 22, 2017).  

Monday, October 16, 2017

Current Law of Intentional Infliction of Emotional Distress Claim Reviewed

 
 
In his recent decision in the case of Nehme v. Churla, 2017 W.L. 4124460 (C.P. Lacka. Co. Sept. 8, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the current status of the requirements of a claim for intentional infliction of emotional distress under Pennsylvania law.
 
The issue arose in a case in which a Plaintiff commenced an action against his former paramour seeking the repayment of money he loaned to the Defendant during the pendency of her divorce proceedings against her ex-husband.  The Plaintiff also sought the return of an engagement ring.  
 
According to the Opinion, the Defendant asserted a counterclaim for intentional infliction of emotional distress. The Plaintiff filed a demurrer to that claim on the grounds of legal insufficiency.  
 
After reviewing the current status of the law of intentional infliction of emotional distress in Pennsylvania as applied against the facts of the case, the court sustained the demurrer to the Defendant’s counterclaim. 

Anyone wishing to read this Opinion may click this LINK.

Friday, October 13, 2017

Pennsylvania Defense Institute Drafts Proposed Points for Charge for 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 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.
 

Bad Faith Statute Applies to Insurers Not Insurance Agents

In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Sept. 27, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted judgment on the pleadings in favor of an automobile insurance agent named as a party defendant in a Post-Koken bad faith suit.

The decision was based, in part, on the court's reaffirmation of the law providing that the bad faith statute under 42 Pa.C.S.A. Section 8371 only applies to an "insurer" and not an insurance agent.

To review this decision, click this LINK.

Wednesday, October 11, 2017

Personal Jurisdiction Issues Addressed by Third Circuit (Not Precedential)


In the case of Barth v. Walt Disney Parks & Resorts U.S., Inc., No. 16-3593 (3d Cir. Sept. 8, 2017 Hardiman, Chagares, and Jordan, J.J.) (Op. by Hardiman, J.)[marked "Not Precedential"], the Third Circuit Court of Appeals affirmed the trial court’s granting of a Motion to Dismiss the case against the Defendant where the court agreed that the Defendants were neither incorporated nor had any a principal place of business in Pennsylvania and were, therefore, not properly subject to general personal jurisdiction concerning an injury that took place in another state.

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


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

Monday, October 9, 2017

Trial Court Addresses Liability of Business for Car Accident on Adjoining Road After Patron Drives Off Premises

In its decision in the case of Zurick v. Basile Italian Delight Restaurant and Pizzeria, No. S-1571-2016 (C.P. Schuylkill Co. Miller, J.), the court denied Preliminary Objections filed by a landowner Defendant who asserted that it owed no duty to a Plaintiff injured in a motor vehicle accident that occurred after a vehicle left the parking lot area of the Defendant's restaurant and was involved in an accident with a vehicle on the adjoining roadway.  

The Defendant landowner had asserted that no duty was owned to the Plaintiff under the case of Newell v. Montana West, Inc., 154 A.3d 819 (Pa. Super. 2017), in which the Superior Court ruled, in a case of first impression, that a business does not have a duty to protect its invitees against the dangers associated with adjoining roadways.   The Newell case involved a pedestrian who was struck and killed by a car after he left a show at the defendant’s premises.

The court in Zurick limited the Newell holding to accidents involving pedestrians and ruled that the driveway immunity provisions of the Construction Code Act, 35 P.S. §7210 502 (b)(4)(1) and/or the Municipalities Planning Code, 53 P.S. §10508(6), give rise to a statutory duty upon landowner Defendants related to the creation of a driveway on its premises and/or the failure to maintain such driveway so as not to interfere with the safe travel on the abutting roadway.  

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

Fundraising Gala for Lackawanna Pro Bono


Friday, October 6, 2017

TORT TALK PRACTICE TIP


TAKE PRIDE IN YOUR WRITING

Good legal writers take pride in their writing, care about their end product, and desire that the position put forth in the writing be accepted.   If the writer lacks any of these feelings about the written task before them, it will surely be evidenced in the writing.

In other words, if you don’t care about your written product, why should anyone else care to read it.

So break out that red pen and edit your writings and then re-edit them.  Then re-edit.  

Taking pride in your written submissions will naturally result in a better letter, or a more compelling brief that is free from errors and cohesive in presentation.  

Taking pride in your writing might even be the difference between winning or losing on the issue presented.
 

Thursday, October 5, 2017

Preliminary Objections Against Agency Allegations in Medical Malpractice Complaint Denied

In the case of Chairge v. Geisinger Community Medical Center, No. 2017 - CV - 1851 (C.P. Lacka. Co. Sept. 22, 2017 Nealon, J.), the court addressed preliminary objections in a medical malpractice action in which the defendants asserted that a plaintiff's agency allegations must be stricken unless the Complaint identifies the defendants' actual or ostensible agents by name, sets forth those agents' authority, and avers how the agents' alleged conduct fell within the scope of that authority or was otherwise ratified by the defendant principal.

The preliminary objections were denied after the court emphasized that the Pennsylvania Superior Court ruled three years ago in the case of Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014) that a plaintiff is not barred from asserting a vicarious liability claim against a defendant simply because the alleged agent was not named in the Complaint.

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

Scope of Expert Testimony in a Medical Malpractice Action Reviewed


In its recent decision in the case of James v. Albert Einstein Medical Center, 2017 Pa. Super. 293 (Pa. Super. Sept. 12, 2017 Blatt, Dubow, and Ransom, J.J.) (Op. by Blatt, J.), the Pennsylvania Superior Court affirmed the entry of a verdict in favor of a Defendant in a medical malpractice action.   In one decision of note in this case, the court found that experts in one area of medicine are qualified to address other areas of medicine covered by other specialties where the medical specialties overlap.  

The Pennsylvania Superior Court in this decision also reiterated the rule that Pennsylvania does not recognize the right of filial consortium.  Accordingly, the court found that the mother of the decedent was properly precluded from testifying about her pain and suffering in a wrongful death case.  

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


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

Tuesday, October 3, 2017

Federal Court UIM Bad Faith Claim Dismissed Under Iqbal/Twombly/Fowler Standard of Review


In another decision in the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Sept. 6, 2017 Surrick, J.), the court granted the carrier's motion to dismiss the Plaintiff's bad faith claim filed against a UIM carrier under an Iqbal/Twombly/Fowler analysis.

The court found that the Plaintiff's Complaint lack the foundation of factual allegations in support of the bad faith claim.  The Plaintiff had generally asserted that the carrier failed to properly investigate the claims presented and failed to make reasonable offers.

The court found that the Complaint was "long on conclusions regarding the Defendant's conduct, but it fails to set forth any explanations or descriptions of what Defendant actually did."  Op. at p. 6.  More specifically, the court found that there were no factual allegations on how the Defendant failed to investigate the claim or why the offers were unreasonable.

In granting the motion to dismiss, the court did grant the Plaintiff leave to amend the Complaint.

Anyone wishing to review this decision may click HERE.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller of that firm was the handling defense attorney.

Motion To Remand UIM Claim Back to State Court Denied


In the case of Myers v. State Farm Mut. Auto. Ins. Co., No. 17-3509 (E.D.Pa. Aug. 21, 2017 Surrick, J.), the court denied a Plaintiff's motion to remand a federal court UIM claim back to the Philadelphia Court of Common Pleas.

In its Motion for Remand, the Plaintiff contended that the claims presented did not meet the $75,000 federal court jurisdictional limit.

After reviewing the current status of federal law pertaining to motions for remand against the allegations in the Plaintiff's Complaint, the court noted that the record before the court indicated that the Plaintiff could potentially realize a result in excess of $75,000.

As such, the Plaintiff's motion to remand was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Lucille Bitterman from the Philadelphia law firm of Goldberg, Miller & Rubin for bringing this case to my attention.  Attorney Lori Miller from that firm was the handling defense attorney.


Friday, September 29, 2017

Tort Talk Nominated to Participate in The Expert Institute's Best Legal Blog Contest




I have been advised that, based upon the first round of voting, Tort Talk has been nominated to participate in The Expert Institute's Best Legal Blog Contest in the Legal News category!  Tort Talk was nominated by readers who filled out the nomination form on the blog contest website over the past 4 weeks.  And so I say, "Thank you very much!"

Voting has since opened to help nominated blogs earn a spot in the Expert Institute's Best Legal Blogs Hall of Fame.
Here is the LINK to the voting page should you wish to vote for Tort Talk.  Thanks again.

Thursday, September 28, 2017

Pennsylvania Supreme Court Defines the Elements of a Statutory Bad Faith Claim (42 Pa.C.S.A. Section 8371)

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.

In Rancosky, 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 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.

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.

Pennsylvania Supreme Court Declines to Adopt Bright-Line Rule For Admissibility of BAC Evidence

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 for the admissibility of predicating the admissibility of a person's blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

Rather, the Supreme Court held that the admissibility of BAC evidence is 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.

This case arose out of a motor vehicle versus pedestrian accident.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh office of Summers, McDonnell, Hudock & Guthrie for bringing this case to my attention.

Federal Court Reaffirms That Plaintiffs Have No Standing to Assert Direct Bad Faith Claim Against Tortfeasor's Carrier

In the case of Starrett v. Coe, No. 3:16-cv-02272 (M.D. Pa. June 20, 2017 Saporito, M.J.) (Report and Recommendation, affirmed by Judge A. Richard Caputo under an Opinion dated August 9, 2017), it was held that third party Plaintiffs do not have a contractual relationship with tortfeasor’s liability carriers and, therefore, such Plaintiffs have no standing to assert a bad faith claim against a tortfeasor’s insurer and/or its adjuster.

The district court judge agreed with Federal Magistrate Joseph Saporito's Opinion in this regard and, thereby, dismissed the bad faith failure to negotiate claim lawsuit filed by the Plaintiff.

Anyone wishing to review Federal District Magistrate Judge Saporito's Report and Recommendations may click this LINK.

To review Judge Caputo's Opinion adopting Judge Saporito's decision, please click HERE.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog.  

Tuesday, September 26, 2017

Pennsylvania Superior Court Withdraws Punitive Damages/Statute of Limitations Decision in Wilson and Grants Argument En Banc



Tort Talkers may recall that the Pennsylvania Superior Court caused a bit of an uproar recently with its decision in the case of Wilson v U.S. Security Associates, No. 2017 Pa. Super. 226 (Pa. Super. July 18, 2017 Dubow, J., Ransom, J., Platt, J.)(Op. by Platt, J.).  

In Wilson, the appellate court granted a defendants' motion seeking judgment notwithstanding the verdict with regard to the punitive damages award under a rationale that the trial court improperly allowed the Plaintiff to reinstate a punitive damages claim after the expiration of the statute of limitations.

On September 26, 2017, the Pennsylvania Superior Court withdrew that decision and granted an argument en banc on the issue.  Click HERE to view that Order.

Click HERE to view the Tort Talk post on the Superior Court's original decision.  Note that the Link to the original Opinion no longer works as the Superior Court has withdrawn that decision and, therefore, took it down from its website.

Updates to follow as this issue continues its way along the appellate ladder.

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

Pennsylvania Superior Court Reviews Rules of Liability for Fights on Premises


In the case of Reason v. Kathryn’s Corner Thrift Shop, 2017 Pa. Super. 266 (Pa. Super. Aug. 17, 2017 Solano, J., Lazarus, J., Stevens, P.J.E.) (Op. by Solano, J.), the Pennsylvania Superior Court ruled that the trial court properly entered summary judgment in favor of Defendants in a matter arising out of a case in which the Plaintiff was involved in a fight with a third party in the Defendant’s store.  

The appellate court agreed with the trial court that there was no evidence of any past violence or issues with or by the third party in the store.  The court also noted that the store satisfied its duties under the law to aid the Plaintiff by calling the police.  

In so ruling, the appellate court noted that the Pennsylvania Courts have held that a business is not required to act as  policeman in the face of an ongoing assault within its store and that the store satisfied its duty to aid its business invitee by calling 911 or other professional assistance.  

The records reveal that, in addition to calling 911, an employee in the store eventually broke up the fight outside the store where a crowd had gathered.  

Anyone wishing to review this decision may click this LINK.  


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Sept. 12, 2017). 

Friday, September 22, 2017

Judge Nealon of Lackawanna County Addresses Request for Financial Worth Discovery in Punitive Damages Case

In the case of Charlesworth v. Galacci, No. 2014-CV-3390 (C.P. Lacka. Co. Sept. 19, 2017 Nealon, J.), the trial court in Lackawanna County addressed the merits of a Plaintiff's motion for punitive damages discovery in a dog bite case.

Judge Nealon reviewed the Plaintiff's motion for leave of court to gather such discovery on the Defendant's financial worth under the standards set forth under Pa.R.C.P. 4003.7 and the case of Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 803 (Pa. 1989).  The court ruled that the Plaintiff made a proper prima facie showing of a valid punitive damages claim in support of the request for the discovery order.  As such, the request for financial worth discovery was allowed.

The court also looked past the fact that the Plaintiff's motion was filed after a Certificate of Readiness had been filed.  While the court noted that, generally speaking, requests for discovery after the filing of a Certificate of Readiness are frowned upon, in this case the Defendants had also conducted discovery after the filing of the Certificate.  Moreover, the court also noted that it found no prejudice to the defense in allowing the discovery as the requested information was relevant to the jury's consideration of potential punitive damages to possibly be awarded.

While discovery of the Defendant's financial worth was allowed, the court did order that any information disclosed must be kept confidential and could only be disclosed as may be necessary for trial purposes, including the provision of such information to expert witnesses.

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


Thursday, September 21, 2017

Court Finds No Liability Regarding Provision of Driving Directions



In the case of Garlick v. Anadarko Petroleum Corp., No. 4:12-CV-01166 (M.D. Pa. Aug. 15, 2017 Brann, J.), Judge Matthew W. Brann of the Federal Middle District Court of Pennsylvania granted summary judgment in favor of the defense in a case where the Plaintiff's decedent was involved in a nighttime accident while following directions provided by another. 

Judge Matthew W. Brann
M.D. Pa.

The court reasoned that a defendant cannot be liable under the Restatement (Second) of Torts §323 pertaining to a negligent undertaking with respect to providing driving directions to the Plaintiff’s decedent.   The court noted that providing direction to another person does not create an undertaking to do anything more such as a erecting directional signs on public roads or other steps.   The court also noted that there is no duty to provide the safest route possible.  

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


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

Monday, September 18, 2017

Landlord Not Liable for Criminal Acts Off the Leased Premises


In the case of Bonacci v. Pal, No. 2015-CV-4501 (C.P. Lacka. Co. Aug. 25, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a residential landowner’s demurrer in a wrongful death case on the issue of whether such a landlord may be found liable under Pennsylvania law for a fatal shooting that involved his tenant as an accomplice, but which shooting occurred miles away from the leased premises.  

In his Opinion, Judge Nealon reviewed the law that holds that a landowner in the Commonwealth of Pennsylvania has a duty to protect tenants and third parties from foreseeable criminal attacks on the leased property if the owner had promised or undertaken to provide certain security as an additional precaution.  However, a residential property owner can be liable for physical harm to others outside of the land only if the harm was caused by the dilapidated condition of the structure or a dangerous artificial condition upon it.  

In his research, Judge Nealon found no Pennsylvania case which has imposed liability upon a residential landowner for criminal conduct that causes harm well beyond the geographic boundaries of the leased premises. 

Accordingly, since the fatal shooting at issue in this case occurred more than a mile away from the leased premises, and since the Plaintiff did not allege that the incident resulted from any physical defect in the residential structure or any artificial condition thereon, the court agreed that the Complaint failed to state a cause of action against the Defendant-landowner in this regard, and as such, the Defendant-landowner’s demurrer was granted.  

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

Friday, September 15, 2017

CUMMINS MEDIATION SERVICES



After realizing recent successes in bringing personal injury civil litigation cases to an amicable resolution while serving as a Federal Court Mediator for the Middle District, I wish to offer my services for private non-binding Mediations.

In addition to my own personal experience at Mediations over the past 17 years both as a litigator and as a Mediator, I have attended several continuing legal education courses focused on the development of skills and tools designed to foster ongoing negotiations and success at Mediations.

I welcome the opportunity to assist you in bringing your case to an amicable resolution. 



Resume and fee schedule are available upon request.  I can be reached at dancummins@comcast.net and at 570-346-0745.

Thank you,

Dan Cummins




Summary Judgment Granted in Bad Faith Claim Where Delays in Claims Process Caused, In Part, by Insured


In the bad faith decision of Doherty v. Allstate Indem. Co., No. 15-05165 (E.D. Pa. April 6, 2017 Pappert, J.), the court granted the carrier summary judgment in a claim arising out of allegations of poor investigation and claims handling by the carrier.  

The case arose out of a landlord property insurance policy issued to an insured who owned multiple rental properties leased out to college students.  

In a lengthy Opinion in which the court summarized the current status of bad faith law concerning investigation and claims handling claims, the court granted summary judgment finding that there existed no clear and convincing evidence that the insurer acted in bad faith.  

Rather, the court found that the record made clear that the carrier’s delays were instead attributable to mistakes and possible confusion on the claim, along with, in part, the insured’s obfuscation and refusal to cooperate with the claims representative in the investigation into the claims presented.  

The court otherwise opined that the record revealed that the carrier conducted adequate investigation and had a reasonable basis for denying any coverage.   The court noted that any delays on the part of the insurer were attributable, in part, to the insured’s repeated failure to provide information necessary to open a claim.

Anyone wishing to review this decision may click this LINK.

 
I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.  

 







Wednesday, September 13, 2017

Eastern Federal District Court Denies Motion to Bifurcate Bad Faith Claim from UIM Breach of Contract Claim


In the case of Jones-Silverman v. Allstate Fire & Casualty Ins. Co., No. 17-1711 (E.D. Pa. July 31, 2017 Baylson, J.), the Eastern District Federal Court denied a carrier’s Motion to Bifurcate a Plaintiff’s UIM breach of contract and bad faith claims. 

The court found that the required evidence of each of the claims overlapped such that a bifurcation would amount to a waste of judicial resources.  

The court also noted that, even if the parties settled their breach of contract claim, the insured could still pursue a bad faith claim based upon a theory of undue delay and claims handling.   Accordingly, the court found that the potential resolution of the breach of contract claim did not necessarily render a bad faith claim moot.  

The court otherwise ruled that it was equipped to address any issues of prejudice to the UIM carrier that may arise through the normal rules and procedures of litigation if the case was not bifurcated and a single trial was allowed.  

 As such, the court denied the carrier’s Motion for Bifurcation.

Anyone wishing to read this case online may click this LINK.


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is the creator and writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog.   

Thursday, September 7, 2017

Several Medical Malpractice Issues Addressed by Judge Nealon of Lackawanna County



In the case of Hughes v. Wilkes-Barre Hospital Company, N. 2016-CV-6463 (C.P. Lacka. Co. Aug. 14, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues in a medical malpractice action including issues of allegedly improper venue, corporate negligence theory, agency law questions, and punitive damages issues. 
 
Of note, the court found the venue was proper in Lackawanna County based upon the existence of proper venue over the Lackawanna County Hospital and given the Plaintiffs’ assertion of joint and several liability against all named Defendants.  
 
Judge Terrence R. Nealon
Lackawanna County
The court additionally found that the Plaintiff stated valid causes of action for corporate negligence against the hospital Defendants along with valid claims for vicarious liability based upon the ostensible agency standard set forth in the MCARE Act.  
 
The court also reviewed the validity of claims of punitive damages pled in the case in form of allegations of recklessness and wanton conduct.  

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

 

Tuesday, September 5, 2017

Pennsylvania Superior Court Addresses Several Notable Trial Evidentiary Issues



In the case of Crespo v. Hughes, 2017 Pa. Super. 230 (Pa. Super. July 18, 2017 Ransom, Penella, Shogan, J.J.) (Op. by Ransom, J.), the Pennsylvania Superior Court addressed several civil litigation trial issues.

In this decision, the court confirmed that liability for loss of future income is established by evidence of shortened economic horizons, not actual income.  

Relative to the loss of future earnings claim, the appellate court also affirmed the trial court's exclusion of the plaintiff's alleged marijuana use as well as his alleged failure to pay child support.  The court agreed that any probative value of this evidence with respect to the wage loss claim was outweighed by the danger of unfair prejudice.

On a medical evidence issue, the Superior Court noted that a treating physician could give factual evidence of causation even without filing an expert report where that information was included in the doctor’s treatment notes.  

On another evidentiary issue, the appellate court confirmed that a conviction for receiving stolen property is crimen falsi crime that was admissible against the Plaintiff under Pa. R.E. 609).  

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

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

Friday, September 1, 2017

TORT TALK PRACTICE TIP

KEEP YOUR FRIENDS CLOSE, BUT YOUR ENEMIES CLOSER

No advice may be as difficult to heed than the caution to keep your enemies or adversaries close. 

One way to deal with such "enemies," or all adversaries for that matter, is to keep them close by knowing the facts and the law of the case better than your adversary does. 


By having a full understanding of the facts and knowing the applicable law and rules of procedure at the commencement of a case, one can more effectively control a vexatious opposing counsel and move the case forward to its inevitable conclusion, whatever that may be. It is important to also remember that a case can only move forward by keeping opposing counsel close through continued communication.

As aggravating as opposing counsel may become in such dealings, it is best to remain in control of your own emotions, ignore their shenanigans, and hit them with kindness, good humor and rational explanations supporting your position. 


Always confirm everything in writing with these types of attorneys as a further method to keep them under control. Again, a positive way to view such a situation of having to deal with a needlessly difficult opposing counsel  is to remember that each communication will move the parties one step closer to the eventual resolution of the case, at which point you will no longer have to deal with that attorney.


Tuesday, August 29, 2017

Pennsylvania Superior Court's Latest Take on the Attorney Work Product Doctrine


In the case of Estate of Paterno v. NCAA, 2017 Pa. Super. 247 (Pa. Super. July 25, 2017 Stabile, Panella, Dubow, J.J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed the attorney work product doctrine.  
 
In a decision which affirmed in part and reversed in part the lower court’s decision, the appellate court ruled that the discovery of non-verbatim attorney notes and memoranda concerning interviews should not have been allowed by the lower court.  
 
The Superior Court noted that such items, including attorney summaries, are totally protected by the attorney work product privilege.   The court more specifically stated that the attorney work product is protected as long as the items involve attorney conclusions and mental impressions, whether or not such paperwork was prepared in anticipation of litigation.
 
In its decision, the court also noted that the protections of the attorney work product doctrine are broader under state law then federal law in this respect. 

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

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

 

Monday, August 28, 2017

Pennsylvania Superior Court's Latest Take on Lamp v. Heyman Service of Process Issues (Non-Precedential)


In its recent non-precedential decision in the case of Nicolas v. Zolner, No. 1261 MDA 2016 (Pa. Super. Aug. 15, 2017 Moulton, Solano & Musmanno, J.J.) (Mem. Op. by Musmanno, J.), the court provided its latest take on the Lamp v. Heyman line of cases pertaining to proper service of original process in a civil litigation matter.  
 
In this case, the court affirmed the trial court’s granting of the Defendant’s Preliminary Objections where the Plaintiff did not make any good faith effort to complete service of original process until approximately 2 ½ years after the expiration of the statute of limitations.  
 
In so ruling, the appellate court agreed with the trial court’s rejection of the Plaintiff’s arguments that the Plaintiff’s attorney’s dealings with the Defendant’s liability carrier put the Defendant on actual notice of the litigation.   The court found that this argument to be “without merit.”   The court additionally noted that communications between the Plaintiff and a Defendant’s carrier cannot serve as a substitute for actual service of process under the Rules of Civil Procedure.  

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

 The prevailing defense attorney in this matter was Attorney Stephen T. Kopko of the Scranton, PA insurance defense firm of Foley, Comerford & Cummins.  

Friday, August 25, 2017

Nomination Period Open for 2017 Best Legal Blog Contest Run by the Expert Institute



If you are interested, here is a LINK to the webpage to nominate blogs for the 2017 Best Legal Blog Contest put on by the Expert Institute.

Wednesday, August 23, 2017

Pennsylvania Supreme Court to Address Impact of Facebook Posts on Discovery Rule Related to Statute of Limitations


In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court has 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 suffered from the disease years before filing the suit.  
 
The court has agreed to more specifically address the 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.”  
 
Here is a LINK to the Pennsylvania Supreme Court's Order.
 
A split Pennsylvania Superior Court panel previously ruled that the Plaintiff’s claims were barred by the two (2) year statute of limitations.  

 

Source:  Article: “Pa. Justices Agree to Eye Facebook Post’s Impact on Discovery Rule By Max Mitchell of The Legal Intelligencer (Aug. 21, 2017).  

PA Superior Court Finds Attorney Client Privilege Waived With Regards to Communications With Outside Public Relations Firm

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 235 (Pa. Super. July 19, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the trial court's ruling that a defendant corporation waived the attorney-client privilege by forwarding attorney correspondence to an outside public relations firm since 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.  

Anyone wishing to review this decision may click this LINK.

Source: "Digest of Recent Opinions." Pennsylvania Law Weekly (August 22, 2017).

For a review of a prior decision by the Pennsylvania Superior Court in the same case on the same issue click this LINK to go to that Tort Talk post.




Post-Koken Decision Out of Armstrong County in Favor of Consolidation of Claims -- Court Notes Still No Clear Appellate Precedent on this Issue

In a case of apparent first impression in Armstrong County, the court in the Post-Koken case of Stennett v. Religa and Erie Ins. Exchange, No. 2017-0491-Civil (C.P. Armstrong Co. July 24, 2017 Panchik, J.) denied a tortfeasor defendant's efforts to sever the tort claims asserted against him from the breach of contract UIM claims asserted against the carrier defendant.

In so ruling, the Stennett court noted that "there is no clear appellate precedent in Pennsylvania governing whether tort and insurance breach of contract claims, both arising out of a single accident, should proceed together."

The court ruled that the claim would proceed together in this matter through discovery without prejudice to the parties' right to seek a severance or bifurcation at the time of trial.

Anyone wishing to review a copy of this Memorandum and Order in the case of Stennett may click this LINK.

I send thanks to Attorney David M. Landay from Pittsburgh, PA law for bringing this case to my attention.

Friday, August 18, 2017

TORT TALK PRACTICE TIP


BE REDUNDANT IN STATING YOUR LEGAL POSITION IN BRIEFS

While redundancy in particular word use is to be avoided in brief writing, every effort should be made to repeatedly state the validity of your legal ­position supporting the relief requested.
The first and last sentence of each ­subsection of your brief should contain the legal conclusion that supports your ­client's position. 

Brief writers will often start with a statement of the applicable rule of law but never fully apply the facts of the matter to that law. Or they will apply the facts to the law but not write that next, most important, concluding sentence tying it all together by stating that the law supports the client's position such that the ­relief requested should be granted.

So be sure to end each section of the brief with a sentence set forth in an active voice stating that this part of your legal argument should be accepted as valid by the court under the law provided. 

Repeatedly end each section of the brief with a respectful statement that the motion at issue should therefore be granted or denied, whatever the case may be.

Tuesday, August 15, 2017

Twombly/Iqbal Standards Applied to Dismiss Bad Faith Complaint

In the recent Eastern Federal District Court of Pennsylvania case of Jones v. Allstate, No. 17-00648 (E.D. Pa. June 19, 2017 Pappert, J.), the Court applied the mandates of Twombly/Iqbal in granting the carrier's motion to dismiss the Plaintiff's bad faith claim filed against Allstate in a motor vehicle accident case.  The Plaintiff was granted leave to amend.

Quoting colorful language from the Iqbal case, the court noted that, while a Federal Court Complaint need not provide detailed facts, it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation."

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


I send thanks to Attorney Kristin H. Jones of the Philadelphia office of Pepper Hamilton, LLP for bringing this decision to my attention.

Wednesday, August 9, 2017

Pennsylvania Supreme Court Agrees to Hear Household Exclusion and Stacking Issues Case



In the case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017), the Pennsylvania Supreme Court granted an appeal to address issues pertaining to a household exclusion and stacking issues.  The Court's Order granting the appeal reads, as follows:


AND NOW, this 8th day of August, 2017, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by the Petitioner, are:

(1) Whether the "household vehicle exclusion" violates Section 1738 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) where GEICO issued all household policies and unilaterally decided to issue two separate policies, when the insured desired stacking, elected stacking, paid additional premiums for stacking and never knowingly waived stacking of underinsured motorist benefits?

(2) Whether the "household vehicle exclusion" impermissibly narrows or conflicts with the statutory mandates of the Pennsylvania Motor Vehicle Financial Responsibility Law and the evidence of record is that GEICO was fully aware of the risks of insuring a motorcycle in the same household as other family vehicles but unilaterally decided to write a separate motorcycle policy?
 
 
I send thanks to Attorney Scott Cooper of the Schmidt Kramer firm in Harrisburg, PA for bringing this Order to my attention.

Landlord Secures Summary Judgment In Slip and Fall Case Where Court Found Duties Owed by Tenant

In a recent decision by the Pennsylvania Commonwealth Court in the case of Stuski v. Philadelphia Auth. 4 Indev., No. 1979 C.D. 2016 (Pa. Cmwlth. May 25, 2017 Covey, J.), summary judgment was affirmed in favor of a landlord Defendant in a slip and fall matter.  

The court ruled that the tenant and not the landlord had the duty to remove snow and ice from the premises where the tenant had exclusive control over the premises where the slip and fall occurred.  The court additionally noted that the tenant was obligated under the lease to perform snow and ice removal and had taken actual responsibility for that task.  

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

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

 

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (June 20, 2017).  


 

Friday, August 4, 2017

TORT TALK PRACTICE TIP


AT TRIAL, KEEP A SEPARATE PAD TO RECORD OBJECTIONS


To ease the review of the file for appellate purposes after the trial is completed, keep a separate yellow pad listing all objections you have asserted and lost.

Prior to trial, start that list with any summary judgment issues or pre-trial motion in limine issues you may have lost.

During the course of the trial, each time you lose an objection, make some quick, concise note of it on the pad to help you to recall all such issues after trial as you determine which ones are worthy of taking up the appellate ladder.

Tuesday, August 1, 2017

Liability Case Allowed To Proceed Against Defendant Who Filed Chapter 7 Bankruptcy - PART II

Tort Talkers may recall a recent post on the Bankruptcy Court case of In re Betty L. Morris addressing the ability of a Plaintiff to move a personal injury case forward against a tortfeasor who is in bankruptcy where the Plaintiff agrees to limit the recovery to the amount of the liability limits available.  That Tort Talk post can be viewed via this LINK.

Anyone wishing to review the companion state court decision in that case along the same lines may click HERE.

I send thanks to Attorney Scott E. Diamond of the Philadelphia, Pennsylvania law firm of Sacks Weston Diamond, LLC for bringing this case to my attention. 

Court Rules That Rejection of UIM Coverage Forms Not Required Where Vehicle Not Insured for Liability

In the case of Baldridge v. Amica Mut. Ins. Co., No. 2:17-cv-00273-AJS (W.D. Pa. June 30, 2017 Schwab, J.), the Federal Western District Court of Pennsylvania addressed the issue of whether underinsured motorist coverage was available to the Plaintiff for stacking purposes on one of his four personal vehicles which the Defendant insured.  

According to the Opinion, there was no dispute that the Defendant insurance company insured the four (4) personal vehicles of the Plaintiff.  There was also no dispute that the Plaintiff had UIM coverage in the amount of $300,000.00 on three of the four personal vehicles.  

The question before the court was whether the Plaintiff was entitled to UIM coverage on the fourth vehicle, which was noted to be a Mustang.  The more specific question for the court to resolve was whether the Plaintiff had UIM coverage in the amount of $900,000.00 ($300,000.00 multiplied by three vehicles) or $1.2 million dollars ($300,000.00 multiplied by four vehicles).  

The carrier asserted that, because it never provided liability coverage on the Plaintiff’s Mustang, the carrier was never required to also offer the Plaintiff’s UIM coverage on that vehicle.  

The Defendant carrier produced a portion of the insurance policy it issued to the Plaintiff which confirmed that the Mustang was “not covered” for liability.   Rather, that vehicle was covered only for damage to the Mustang for accidents other than collision loss.  

After a review of the waiver/rejection of UIM coverage statutes found at 75 Pa. C.S.A. §1731 and §1734, the court agreed with the carrier’s position and found that, because the Mustang was not insured for liability purposes, the Defendant carrier was never required to offer UIM benefits on that vehicle.   As such, no signed waiver of UIM benefits with respect to the Mustang was required by law.  

Accordingly, the court ruled in favor of the Defendant carrier on the motion presented.  

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Joseph Hudock of the Pittsburgh, Pennsylvania law firm of Summers McDonnell, Hudak & Guthrie, P.C., for bringing this case to my attention.  

Thursday, July 27, 2017

Latest Appellate Decision on Admissibility of Intoxication Evidence in an Auto Accident Matter

For the latest appellate analysis on the issue of admissibility of a Defendant’s alleged intoxication in a motor vehicle accident case, see Partlow v. Gray, No. 2017 Pa.Super. 187 (Pa. Super. June 15, 2017 Dubow, J., Solano, J., Ford Elliott, P.J.E.)(Op. by Dubow, J.).  

This matter arose out of an intersectional accident involving an allegedly intoxicated defendant who made a left hand turn across the decedent’s lane of travel.   The decedent’s estate filed a wrongful death and survival action.  

Prior to trial, the trial court resolved several Motions In Limine, including one involving the admissibility of the defendant driver’s consumption of alcohol and intoxication, and related expert testimony.  

On appeal, the Pennsylvania Superior Court affirmed the trial court’s admission of the evidence of the defendant’s alcohol consumption and intoxication.  

The Superior Court noted that evidence of a driver’s intoxication was generally relevant to reckless or careless driving allegations.   However, the court reaffirmed the law that evidence of consumption of alcohol or a BAC test, by themselves, should not be admitted to prove intoxication.

Here, the court found that the Plaintiff presented additional sufficient evidence of the defendant driver’s unfitness to drive, including the police officers’ observations of the defendant driver immediately after the accident, including the officers’ observation of the defendant's bloodshot and watery eyes and lethargic behavior after the accident.  

The court also noted that the plaintiff presented a BAC test results in conjunction with expert testimony regarding those results with respect to the defendant’s fitness to drive.   The plaintiff’s experts opined at trial that the defendant’s measured BAC after the accident indicated that the defendant’s BAC was still a .104 at the time of the accident.  

The Superior Court noted that, while each piece of the above evidence regarding the Defendant’s intoxication individually may not have been sufficient to render the evidence admissible, taken together, the evidence was sufficiently reliable and, therefore, admissible. 

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

 

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 11, 2017).  

Tuesday, July 25, 2017

Bad Faith Claim Dismissed Where Delays Found To Be Caused by Insured

In his recent decision in the property loss bad faith case of Turner v. State Farm Fire & Cas. Co., No. 3:15-CV-906, 2017 U.S. Dist. LEXIS 81922 (M.D. Pa. May 30, 2017 Conaboy, J.), Judge Richard P. Conaboy provides an excellent summary of the current status of bad faith law and reviews the validity of bringing a bad faith claim where the insured's own conduct allegedly led to the delays at issue.
Judge Richard P. Conaboy
M.D. Pa.
In the end, the court granted the carrier's motion for summary judgment and dismissed the bad faith claims presented. Anyone wishing to review this decision may click HERE.


I send thanks to Lee Applebaum of the Philadelphia, PA law firm of Fineman, Krekstein & Harris, and writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, for bringing this case to my attention (Click HERE to check out that Blog).

Friday, July 21, 2017

Judge Nealon of Lackawanna County Addresses Coverage Issues in a Declaratory Judgment Action

In the case of Penn National Ins. Co. v. Kapinus, No. 2016 - CV - 3379 (C.P. Lacka. Co. July 12, 2017 Nealon, J.), Judge Terrence R. Nealon sustained in part and denied in part an insured's Preliminary Objections in a declaratory judgment action on coverage.

In this matter a commercial insurance carrier who issued a liability policy to business owned by the father of a personal injury plaintiff filed a declaratory judgment seeking a judicial declaration that it need not provide coverage on the son's claims given that the father misrepresented information as to whether his son had worked for the father's business in the past.

In his preliminary objections, the son asserted that material misrepresentations in this context must relate to the application for insurance and not to alleged fraud in the later prosecution of a claim. Judge Nealon disagreed with this assertion and denied the preliminary objections in this regard.

The court did sustain the son's preliminary objections that asserted the the duty to cooperate under the policy only pertained to the defense of the underlying matter and not with respect to the carrier's efforts to gather information with respect to a decision to deny coverage under the policy.

Anyone wishing to review this opinion by Judge Nealon in the Kapinus case may email me at dancummins@comcast.net.


Copy of Facebook Decision in Clapsadle Case Secured


A copy of the Facebook Discovery decision in the case of Clapsadle v. Barkman, No. 2015-1896 (C.P. Franklin Co. Sept. 15, 2016) has been secured and has been added to the Facebook Discovery Scorecard on Tort Talk.

The decision can be accessed online HERE.

I send thanks to Attorney Matthew S. Crosby of the Harrisburg, PA law firm of Handler, Henning & Rosenberg, LLP for providing me with a copy of this decision.


The Facebook Discovery Scorecard can always be accessed by going to www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."  There are Links to all of the Facebook decisions noted on that Scorecard. 

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




Thursday, July 20, 2017

Link To Interesting Article on the Evolution of Self-Driven Vehicles To Date

The advent of self-driven vehicles appears to be upon as as the technology continues to be developed.

Here is a LINK to an interesting article written by noted liability expert Steven M. Schorr and Joseph R. Fowler entitled "Self-Driven:  The Path Towards Autonomous Vehicles."  In this article, Mr. Schorr and Mr. Fowler provide a history of the evolution of motor vehicles towards the eventual introduction of self-driving vehicles to the public.

According to the article, the technology still needs to be developed substantially further before truly autonomous vehicle will be set loose on the roadways.

But there may come some day when auto law practitioners and the courts in Pennsylvania will have to grapple with new legal issues that may arise out of motor vehicle accidents involving autonomous vehicles.  These issues may include the liability of the person "operating" such vehicle as well as potentially products liability issues with respect to the technology involved.

Wednesday, July 19, 2017

Pennsylvania Superior Court Rules that Punitive Damages Claim May Not Be Added After Expiration of Statute of Limitations Where Such Claim Amounts to New Cause of Action



In the case of Wilson v U.S. Security Associates, No. 2017 Pa. Super. 226 (Pa. Super. July 18, 2017 Dubow, J., Ransom, J., Platt, J.)(Op. by Platt, J.), the Superior Court granted a defendants' motion seeking judgment notwithstanding the verdict with regard to the punitive damages award under a rationale that the trial court improperly allowed the Plaintiff to reinstate a punitive damages claim after the expiration of the statute of limitations.

In so ruling, the Pennsylvania Superior Court overturned a $38.5 million punitive damages verdict awarded to the families of two employees who were killed by a disgruntled co-worker in a factory shooting.
According to the Opinion, the plaintiffs initially sought punitive damages, but later the parties entered a stipulation for the withdrawal of the punitive damages claim.  Thereafter, the plaintiffs secured new counsel and, during the course of the trial of the matter and after the statute of limitations had expired, the plaintiffs were permitted by the trial court to reintroduce and pursue the punitive damages claim.
On appeal, the plaintiffs argued that the reintroduction of the punitive damages claims merely amounted to an amendment to the ad damnum clause outlining the damages, rather than the identification of a separate cause of action.
The Superior Court panel disagreed and ruled that the trial court erred in allowing the plaintiffs to reintroduce the claim for punitive damages after the statute of limitations had expired.   The Superior Court treated the withdrawal of the punitive damages claims as being analogous to the voluntary withdrawal of a suit, which action does not serve to toll the statute of limitations. The Court also noted in footnote 27 that allowing the punitive damages claim to proceed mid-trial was also prejudicial to the defendant.

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


UPDATE:  By Order dated September 26, 2017, the Pennsylvania Superior Court withdrew this decision and granted argument en banc.  More updates to follow as this issue develops.  Click HERE to view this Order.