Wednesday, June 28, 2017

Western Federal District Court Grants Partial Summary Judgment in Medical Malpractice Case Involving Physician's Assistants

In the Western Federal District Court case of Brogdon v. Correct Care Solutions, LLC et.al., No. 1:16-CV-12 (W.D. Pa. April 21, 2017 Rothstein, J.), the court addressed a Plaintiff’s Motion for Partial Summary Judgment in a wrongful medical malpractice case against private prison healthcare providers involving a case a prisoner’s death allegedly from an undiagnosed case of appendicitis.

In its decision, the court noted that the decedent was only seen by physician assistants and allegedly without any supervision by the supervising physicians.  

After a review of the matter, the court granted the Plaintiff’s Motion for Partial Summary Judgment on the issues of negligence per se for violations of the Medical Practice Act and regulations thereunder relating to the supervisions of physicians assistants.  

While the court granted summary judgment on the issues of a duty of care and a breach thereof, the issue of causation was left for the jury’s decision.  

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Allison S. Lapat, Esquire of the Philadelphia law firm of Stein & Silverman, P.C. for bringing this case to my attention.  











Monday, June 26, 2017

Summary Judgment Denied to Landowner In Slip and Fall Case But Granted For Snow Removal Contractor

In the case of Graham v. K Investments, Ltd., No. 4376-2014 (C.P. Monroe Co. March 13, 2017 Zulick, J.), Judge Arthur Zulick of the Monroe County Court of Common Pleas denied a restaurant’s Motion for Summary Judgment in a slip and fall case.   However, the court did grant summary judgment in favor of a snow removal contractor.  

Relative to the claims against the landowner, the court noted that a snow storm had occurred nine (9) days prior to the Plaintiff’s accident.  

Judge Arthur L. Zulick
Monroe County
When the Defendant restaurant moved for summary judgment based upon the hills and ridges doctrine, the court accepted the Claimant’s argument that the doctrine was not applicable because generally slippery conditions did not prevail in the community at the time of the incident. Moreover, the Plaintiff asserted that this case involved a localized patch of ice.  As such, the motion for summary judgment based upon the hills and ridges doctrine was denied.

The court otherwise found no evidence of negligence against the snow removal contractor who was last on the premises nine days before the incident.

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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 2, 2017). 

Summary Judgment Based Upon Hills and Ridges Doctrine Denied

In the Lycoming County Court of Common Pleas case of Holtzapple v. Dunkleburger, No. 15-1666 (C.P. Lycoming Co. March 15, 2017 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas denied a Defendant’s Motion based upon the Hills and Ridges Doctrine.  

According to the Opinion, the Plaintiff slipped and fell on ice outside of a cafĂ© on his way into the establishment.   It was not snowing at the time of the incident, but a light dusting of snow was on the ground.  

The court held that the Hills and Ridges Doctrine did not apply because the Plaintiff allegedly fell on a localized patch of black ice.   The court additionally noted that it was sunny and not snowing at the time of the incident such that there were not generally slippery conditions existing at the time of the incident was required by the application of the Hills and Ridges Doctrine.

As such, the court found that a material issue of fact existed as to whether or not the Defendant had actual constructive knowledge of the condition of the premises.    

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

Friday, June 23, 2017

Petition to Enforce Settlement Granted in Monroe County Case

In his recent decision in the case of Wise v. Hyundai Motor Company, No. 3777 Civil 2011 (C.P. Monroe Co. Dec. 16, 2016 Williamson, J.), Judge David J. Williamson addressed a Motion to Enforce Settlement and, after reviewing the law of whether a valid contract of settlement had been reached between the parties, granted the same.  

Anyone wishing to review this decision may click this LINK.
 

Source: “Digest of Recent Decisions” Pennsylvania Law Weekly (May 30, 2017).  










Petition to Enforce Medical Malpractice Settlement Granted in Lackawanna County

In his recent decision in the medical malpractice case of Brink v. Mallik, No. 2013-CV-1314 (C.P. Lacka. Co. June 9, 2017 Nealon, J.), Judge Terrence R. Nealon reviewed the current status of the law of settlements in his assessment of a Petition to Enforce a settlement.  In the end, the court granted the Petition and found that an apparent unilateral mistake by one party as to the scope of the terms of the settlement did not support a denial of the Petition.

Anyone wishing to review this case may click this LINK.



TORT TALK PRACTICE TIP

CAREFULLY READ TRIAL MANAGEMENT ORDERS

When a Trial Management Order is issued read the Order in its entirety--Judges expect them to be followed to the letter. Immediately have all deadlines marked on your calendar.

Also mark a tickler on your calendar at least 45 days before the start of trial to re-read the Trial Management Order and get started on all materials that have to be filed by certain deadlines such as Trial Briefs, Motions in Limine, Proposed Voir Dire Questions, Proposed Points for Charge, and the like.

Take the time to draft an excellent Trial Brief that thoroughly advances your client's case and argues all anticipated legal issues in your client's favor.  There may come times during trial where the Judge, bored with the tedium of trial, may pick up your Trial Brief to skim or read to pass the time, all to the potential benefit of your client's case.

Tuesday, June 20, 2017

Bankruptcy Court Addresses Impact of Bankruptcy Stay on Ability of Plaintiff To Proceed on Personal Injury Action

A recurring issue in civil litigation matters is the effect of a Bankruptcy Stay on the ability of a plaintiff to proceed on a personal injury action against a person in bankruptcy.

In the United States Bankruptcy Court for the Middle  District case of In Re: Betty L. Morris, No. 1-14-bk-03161 RNO (April 28, 2017), the court addressed a Claimant’s desire to move forward in a state court personal injury action to pursue only the extent of the available liability insurance coverage despite a bankruptcy stay.  

According to the Opinion, the Chapter 7 debtor received a bankruptcy in October of 2014.   The case was reopened in February of 2017 to consider a motion filed by a personal injury Claimant who commenced a pre-bankruptcy state court action against the debtor.   The state court action arose out of a motor vehicle accident against the debtor. 

The Claimant moved for a declaration from the bankruptcy court that her state court action, in which she wished to only pursue the extent of the available liability insurance coverage, is not stayed by the discharge injunction imposed by §524 of the bankruptcy code.

After a review of the matter before it, the court concluded that the state court personal injury action was not stayed and could proceed.  

Anyone wishing to review this case may click this LINK.

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. 






Monday, June 19, 2017

Judge Conaboy of Federal Middle District Court Rules On Punitive Damages Issues In Commercial Motor Vehicle Accident Case

In his recent decision in the commercial motor vehicle accident case of Kane v. DG Express, No. 3:16-CV-216 (M.D.Pa. May 18, 2017 Conaboy, J.), Judge Richard P. Conaboy denied the defendants’ Motion in Limine seeking to preclude Plaintiff’s punitive damages claim. The decision held that a Motion in Limine is an inappropriate vehicle for an effect -- the preclusion of a claim – that should have been the subject of a case dispositive motion, such as a motion to dismiss at the pleadings stage, or a motion for summary judgment after the conclusion of discovery. 

Judge Conaboy also denied the Defendants’ Motion in Limine which sought to preclude the testimony of Plaintiff’s liability expert witness. In so doing, the Court noted that it was persuaded that expert testimony regarding what level of competence and care a professional driver should exhibit, and what risks such a driver must necessarily anticipate, may assist the jury in determining whether the negligence already admitted by the Defendants rose to the level of reckless indifference that is necessary to support an award of punitive damages.

Anyone wishing to review this decision may click this LINK.

I send thanks to the prevailing Plaintiff's Attorney Richard A. Russo of the Wilkes-Barre, PA law firm of Rosenn, Jenkins & Greenwald for bringing this case to my attention.


Friday, June 16, 2017

Superior Court Addresses Whether UIM Claim is Collaterally Estopped By Prior Third Party Binding Arbitration Award (Maybe)

In a "non-precedential" Memorandum decision in the case of Fernandez v. Erie  Insurance Group, No. 1002 EDA 2016 (Pa. Super. 2017 Moulton, Ransom, Fitzgerald, J.J.)(mem. op. by Fitzgerald, J.), the Pennsylvania Superior Court held that a UIM claim was not estopped by a previous arbitration award entered on the third party portion of the case.

According to the Opinion, the tortfeasor Defendant had a liability policy with a $50,000.00 limit.   The parties in the underlying third party matter proceeded to a binding arbitration at which the arbitrator found in favor of the Plaintiff for $87,000.00 and then molded the verdict down to the $50,000.00 liability limits.  

The Plaintiff later signed a Release and included a handwritten note indicating that she expressly reserved the right to pursue her UIM claims against the UIM carrier. 

Thereafter, the Plaintiff filed a breach of contract and bad faith claim against the UIM carrier.   The UIM carrier responded with a summary judgment motion asserting that the arbitration award in the third party matter collaterally estopped the Plaintiff from pursuing UIM benefits.   The UIM carrier also asked the court to grant the Plaintiff a total of $37,000.00 of UIM benefits, i.e., the difference between the arbitration finding and the molded award.  

After the trial court granted the UIM carrier’s Motion for Summary Judgment, the Plaintiff appealed.  

On appeal, the Superior Court agreed that, under collateral estoppel principles, the arbitration award was binding on the Plaintiff to the extent of the arbitrator’s jurisdiction.   However, the court stated that it could not tell whether the parties in the third party case had imposed any limit on the arbitrator’s jurisdiction.  Accordingly, the court found that the case should have been allowed to proceed to a jury to settle the jurisdictional ambiguity.  

As such, the Superior Court reversed the trial court’s ruling and remanded the case for further proceedings.  

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

Source: Article: “UIM Claim Not Estopped by Arbitration Award, Superior Court Rules,” By: Ben Seal of the Pennsylvania Law Weekly (May 2, 2017).  


To view other Tort Talk posts on the collateral estoppel issue, click HERE.

Thursday, June 15, 2017

Judge Sibum of Monroe County Grants Motion for Judgment on the Pleadings Due to Lack of Timely Service



In the case of Luisi v. Siletti, No. 3862 of 2015 (C.P. Monroe Co. March 10, 2017 Sibum, J.), the court granted a Motion for Judgment on the Pleadings under an argument that the statute of limitations barred the Plaintiff negligence case of action due to a lack of timely service.   

In this case, the court found that a delay of at least eight (8) months to effectuate service did not demonstrate good faith on the part of the Plaintiff to complete service.  

Judge Jennifer Harlacher-Sibum
Monroe County

The court also rejected the Plaintiff’s argument that actual notice was provided to the Defendant because both the Defendant and the Defendant’s insurance company had received a copy of the Complaint in the mail.   The Plaintiff also asserted that no prejudice was suffered by the Defendant in the delay.  

According to the Opinion, the Defendant and his carrier both denied receiving a copy of the Complaint in the mail.   Judge Sibum indicated that, even if such mailings did occur, they were not a valid substitute for actual service under the rules in any event.  

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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (May 2, 2017). 

Tuesday, June 13, 2017

Eastern Federal District Court Dismisses Post-Koken Bad Faith Claims and Claims of Failure of Carrier to Procure Insurance

In the case of Reidi v. GEICO, No. 16-6139 (E.D. Pa. April 11, 2017 Stengel, J.), the Eastern District Federal Court addressed a Motion to Dismiss filed by the Defendant carrier in a post-Koken UIM matter involving claims for breach of contract, bad faith, and other claims.  

After a review of the record before it, the court granted the carrier’s Motion to Dismiss the Plaintiff’s claims for bad faith after finding that the Complaint set forth only conclusory allegations regarding bad faith.   The court noted that the legal recitations contained in the Plaintiff’s Complaint were not factual and, therefore, not entitled to the assumption of truth.  

The court otherwise indicated that there were no facts pled showing how GEICO lacked a reasonable basis for its decision not to pay UIM benefits or otherwise detailing the actions that GEICO or the Plaintiff took in pursuit of the claim.   Nor were there any facts alleged that specifically described what was unfair about GEICO’s denial in refusing to pay the benefits.

Accordingly, the court found that the Plaintiff’s Complaint failed to state a plausible claim for bad faith. 

The court also granted GEICO’s Motion to Dismiss the Plaintiff’s breach of contract claim and negligence claim based upon GEICO’s failure to procure an insurance policy for them.

In this matter, the Plaintiff got into a car accident the same day the vehicle was purchased.  Plaintiffs alleged that they made a telephone call to GEICO the day before they purchased the vehicle to ensure that the car that they were about to purchase would be covered.   The court noted that the Plaintiffs conceded that they did not actual purchase the car until after they called GEICO. 

The court noted that Pennsylvania law recognizes claims for failure to procure insurance and limited circumstances which were not found to be implicated in this matter as the Plaintiffs failed to allege any affirmative representations to procure insurance made by GEICO.  

Rather, the records before the court indicated that the Plaintiff alleged that a GEICO representative told the Plaintiff their insurance “would be stored electronically and that the Plaintiffs should contact GEICO once they actually purchase a vehicle and obtain a VIN number.”   Under such circumstances, the court stated that it cannot be said that GEICO assumed any duty to provide coverage to the Plaintiffs.  

Anyone wishing to read this decision online can click HERE.

Bad Faith Claim Dismissed in Federal Middle District Court Case

In his recent decision in the case of Sayles v. Allstate Ins. Co., No. 3:16-cv-01534 (M.D. Pa. May 10, 2017 Caputo, J.), Judge A. Richard Caputo dismissed a claim for bad faith in a case where the insured claimed that the requirements to undergo an IME, along with a refusal by the carrier to pay first party medical benefits before the IME took place, were violations of the bad faith statute.  

In this matter, the insurance policy required the insured to submit to an independent medical examination after making a bodily injury claim for medical benefits arising out of auto accident. The policy stated that the carrier did not have to make payments prior to that examination.  

Judge Caputo noted that a federal judge in the Eastern District Federal Court had ruled in 2009 that these kinds of policy terms were enforceable and not inconsistent with the Motor Vehicle Financial Responsibility Law, relying upon case law from the Pennsylvania Superior Court.  However, a judge in the Middle District Court came to a different conclusion in 2017, finding the provisions to be unenforceable.   
 
The court rejected the Plaintiff’s claims of bad faith after finding that the carrier had a reasonable basis for denying medical benefits where the Pennsylvania Supreme Court had not decided the issue and where another federal court had found that the policy language was enforceable.   Judge Caputo found that it was reasonable for the carrier to have relied upon the earlier opinion where the status of the law was in a state of flux.  

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 and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog. 

Monday, June 12, 2017

No Duty on Homeowner's Association to Maintain Stop Sign


In his recent decision in the case of Brown v. Russaw, No. 8953-CIVIL-2014 (C.P. Monroe Co. May 10, 2017  Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted summary judgment in favor of a homeowner’s association in a motor vehicle accident case involving a missing stop sign.  

According to the Opinion, the Plaintiff alleged personal injuries as a result of a motor vehicle accident that occurred when she was struck by another vehicle which had entered into the intersection from a roadway at which a stop sign was missing.  

While the court agreed that issues of fact prevented the entry of summary judgment on this issue of whether the Defendant Property Owner’s Association had actual or constructive notice of the missing stop sign, the court still granted summary judgment after finding that the Defendant homeowner’s association had no duty to maintain or replace the stop sign.  

In his Opinion, Judge Williamson noted that the duties of a private community association with regards to stop signs did not appear to be addressed under Pennsylvania case law.  

The Defendant association pointed to analogous cases involving municipalities which indicated that there was no duty upon a municipality to erect, maintain, or replace a missing stop sign at an intersection.   

Although the court acknowledged that the Defendant community association was not a municipality, the court felt that the municipality cases were indeed analogous and noted that, if a municipality as no obligation to erect, maintain, or repair stop signs, then, for the same reasons, the court found that a private road owner should likewise not have that obligation.  

The court also noted that, there were no facts set forth under which the Plaintiff could recover against the homeowner's association in any event under the law pertaining to a lack of a stop sign as it appeared that the tortfeasor Defendant driver allegedly failed to follow the rules of the right-of-way at the intersection.  

As stated, the court granted summary judgment in favor of the property owner’s association.  


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


To view a Tort Talk post on another missing stop sign case, click HERE.
   

Traffic Citation Ruled Admissible in Federal Court Action by Federal Magistrate Judge

In the Eastern District Federal Court case of Malantonio v. Boyle, 2017 WL 633997 (E.D.Pa. 2017 Hart, M.J.), a federal magistrate judge denied a defendant's motion in limine to preclude the mention of a traffic citation arising out of a motor vehicle accident.

While the court agreed with the defense that such evidence would be inadmissible in a state court action, the federal court found that, under the Federal Rules of Evidence, the citation was admissible. See 42 Pa.C.S.A. Section 6142(a).

In this regard, the court more specifically found that the traffic citation would not be excluded as hearsay evidence and that the probative value of the evidence outweighed any prejudicial effect.  The court also noted that the defendant would have an opportunity at trial to testify regarding the circumstances surrounding his guilty plea to the citation as well as to explain his actions that led to him being given a traffic citation in the first place.

Anyone wishing to review this decision may click this LINK.


Source:  Course Materials from 2017 PAAJ Auto Law Update CLE.


Friday, June 9, 2017

Amount in Controversy for Federal Court Jurisdiction Found in Bad Faith Punitive Damages Claim

In the case of Koerner v. GEICO, No. 17-455 (M.D. Pa. May 18, 2017 Conaboy, J.), the court refused to remand a post-Koken UIM/bad faith litigation to state court.  

In part, the court found that the diversity minimum dollar amount was met because the Complaint sought punitive damages for bad faith which the court found, in theory, makes the amount controversy in excess of $75,000.00.   The court therefore found that federal court jurisdiction was proper regardless of the amount of uninsured motorist coverage available under the policy. 

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

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

Thursday, June 8, 2017

Punitive Damages Claim Allowed to Stand in Northampton County Texting Case




In a recent 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 while the Defendant was traveling 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.

I send thanks to Attorney Ed Shaughnessy of the Law Offices of Edward P. Shaughnessy in Easton, PA for bringing this case to my attention.

Judge Polachek-Gartley of Luzerne County Sustains Preliminary Objections to Punitive Damages Claims in Trucking Accident Case

In the case of Coleman v. TonyHaas et.al., No. 12529 of 2016 (C.P. Luz. Co. April 28, 2017 Polachek-Gartley, J.), the court sustained the Defendants’ Preliminary Objections to the Plaintiff’s claims for punitive damages in a trucking accident case.  

The accident was alleged to have occurred when a tractor trailer moved from the right lane into the left lane and struck the Plaintiff’s vehicle.  

Reviewing the allegations of the Plaintiff’s Complaint, the court found that, at most, the Plaintiff’s allegations gave rise to a claim for negligence and did not support the claims for punitive damages.  

Anyone wishing to read this Opinion online may click HERE.

I send thanks to Attorney John A. Statler of the Lemoyne, Pennsylvania office of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.  


Issues Pertaining to Propriety of Praecipe for Issuance of Writ Of Summons Addressed In Lackawanna County

In his recent decision in the case of Gesford v. Gerrity's Market, No. 2016 - Civil - 2204 (C.P. Lacka. Co. June 2, 2017 Nealon, J.), Judge Terrence R. Nealon addressed the rare issue of the propriety of a Praecipe for the Issuance of a Writ of Summons.

In this case, the Praecipe for the Issuance of a Writ of Summons was filed on the final day before the statute of limitations was set to expire.  At issue was the fact that the Praecipe was signed and filed by a daughter of an incapacitated Plaintiff.  According to the Opinion, the Plaintiff had not yet obtained any Plaintiff's counsel.

The case then proceeded through pleadings and discovery before the defense advanced the issue of the propriety of the Praecipe by way of a summary judgment motion.  The defense asserted that the statute of limitations had not been tolled by the allegedly improper Praecipe.

Relying in part on Pa.R.C.P. 126, which allows for a liberal construction of the Rules of Civil Procedure, Judge Nealon noted that although the Rules contemplate the Praecipe being signed by a plaintiff or plaintiff's counsel, the Plaintiff here made a good faith effort to commence her action and provided prompt service of the suit upon the Defendants.  The court also noted that there was no prejudice shown by the defense as a result of the "technical misstep" by the Plaintiff.

As such, the defense motion for summary judgment was denied.

Anyone wishing to review this decision may click this LINK.

Wednesday, June 7, 2017

Waiver of Stacking Case Out of Monroe County

In his recent decision in the case of Newhook v. Erie Insurance Exchange, No. 10711 CIVIL 2014 (C.P. Monroe Co. May 11, 2017 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas ruled that an insured was entitled to stacked uninsured/underinsured motorist benefits where a new waiver of stacking was not secured by the carrier when the insured added his most recent vehicles to the policy.  

Judge David J. Williamson
Monroe County

 
According to the Opinion, the insured did not select stacked coverage when he added his most recent vehicles to his policy, but also did not officially waive such coverage.  

The court found that the fourth vehicle that the insured had added to his policy was not a replacement of a vehicle for which stacking had been previously declined.   As such, the court found that the carrier should have secured a written waiver of stacked coverage.  

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

Tuesday, June 6, 2017

Motion to Bifurcate Luzerne County Post-Koken Trial Denied


In the case of Gallagher v. Longfoot and Erie Insurance Exchange, No. 2015-CV-3169 (C.P. Luz. Co. May 1, 2017 Burke, J.), Judge Thomas F. Burke, Jr., of the Luzerne County Court of Common Pleas denied a UIM carrier Defendant’s Motion to Bifurcate a post-Koken case for trial by Order only.  

Anyone wishing to review this Court Order by Judge Burke in Gallagher may click this LINK.

Friday, June 2, 2017

TORT TALK PRACTICE TIP

ALWAYS EXTEND PROFESSIONAL COURTESIES

What goes around, comes around.

There will be times when you need a continuance.  Therefore, requests for continuances should be granted without hesitation wherever possible by fellow attorneys as well as the bench particularly where there is no prejudice to the parties involved.  

Try to return all phone calls within 24 hours wherever possible.  If you don't want to talk to the person who called, at least send an email response back to their voicemail.

Avoid discovery fights.  Discovery that an opposing party is clearly entitled to under the Rules should be produced in a timely fashion and without the necessity of unnecessary motions practice.

Spreading praise always promotes professionalism among attorneys.  If an opposing counsel makes a good presentation in court or submits an excellent brief let them know that while you disagree with the position stated, you were impressed nevertheless by the presentation.  If you hear of a colleague or client who has won a case or earned an award of some sort, drop them a note, email, or text of congratulations.  

Wednesday, May 31, 2017

Lackawanna Pro Bono Golf Tournament Set for June 9th


Judge Nealon of Lackawanna County Addresses Issues Surrounding Substitution of Estate for Deceased Defendant in Civil Litigation Matter

In his recent decision in the case of Bandru v. Fawzen, No. 2013-CV-3959 (April 21, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion to Dismiss a Plaintiff’s Complaint for failure to substitute the Defendant’s estate as the named Defendant within one (1) year of the filing of the Notice of the Defendant’s Death.

The issues in this case arose out of a motor vehicle accident litigation.  After the Defendant in this action died, defense counsel filed a Notice of Death pursuant to Pa. R.C.P. 2355.   Defense counsel later filed a motion seeking to dismiss the case for lack  of subject matter jurisdiction on the grounds that the personal representative of the Defendant’s estate was not substituted as the named Defendant within a certain period of time.

In response, Plaintiff filed a Motion to Substitute the Executrix of the Defendant’s Estate as the Named Defendant in accordance with Pa. R.C.P. 2352(b).  

Judge Nealon ruled that, since the Executrix was appointed as a personal representative of the Defendant’s Estate before defense counsel filed a Notice of Death under Rule 2355, and since the Executrix had consented under Pa. R.C.P. 2352(a) to be substituted as the named Defendant, the court had subject matter jurisdiction over the case.

Accordingly, the Plaintiff’s Motion to Substitute the Executrix of the Defendant’s Estate as the named Defendant was granted, and the Defendant’s Motion to Dismiss for lack of jurisdiction was denied.  

Anyone wishing to review Judge Nealon's Opinion in Bandru may click this LINK.

Thursday, May 25, 2017

Judge Minora of Lackawanna County Addresses Medical Malpractice Discovery Issue

In his recent decision in the case of Snyder v. DeCesare, et.al., No. 2015-CV-1939 (C.P. Lacka. Co. Jan. 20, 2017 Minora, S. J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion to Compel the production of the Defendant nurse’s personnel file in a medical malpractice matter.

The Defendants objected to this request as not relevant, overly broad, and not reasonably calculated to lead to admissible evidence.  

Judge Carmen D. Minora
Lackawanna County

Judge Minora relied upon a two-part test enunciated in the case of Shedlock v. UPMC Presbyterian, Inc., 2014 W.L. 3155117, 69 D.&C. 4th  1 (C.P. Allegh. Co. Wettick, J.).   After reviewing that test, the court ruled in favor of the Plaintiff finding that the Plaintiff made a prima facie showing of a relationship between the level of care alleged and the allegations pled in the Complaint, as well as a plausible argument that the information sought in discovery may assist the Plaintiffs in establishing the claims presented.  


Anyone wishing to review Judge Minora's decision in this case may click this
LINK.

Certificate of Merit Required to Support a Direct Corporate Negligence Claim Against a Licensed Medical Corporation

In his recent decision in the case of Goodfellow v. Camp Netimus Inc., 2017 U.S. Dist. Lexis 68140 (M.D. Pa. May 4, 2017, Mannion, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving a claim of direct corporate negligence.  

A copy of this decision can be viewed online HERE.

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



Wednesday, May 24, 2017

Evidence of Prior Accidents and Injuries Precluded as Irrelevant to Claimed Injuries

In his recent decision in the case of Piczon v. Moody, No. 2012 - CV - 3634(C.P. Lacka. Co. April 6, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Motion In Limine filed by a Plaintiff seeking to preclude the defense medical witness from referencing the Plaintiff’s prior complaints and treatment involving her low back, hip, leg, knee, foot, and ankle in an automobile accident case where the Plaintiff was seeking to recover damages for alleged injuries to her neck and head.  

The court granted the Motion and found that, to be admissible, evidence of previous medical complaints voiced by a Plaintiff must be connected to the Complaints at issue in the pending case.   Where such evidence is not connected to the Complaints at issue, the court will exclude the same as irrelevant and prejudicial. 

Here, the court found that the Plaintiff did not seek to recover any damages in the subject litigation for injuries to her low back, hip, knee, leg, foot or ankle.   The court therefore found that the Plaintiff’s prior complaints and treatment relating to those body parts were irrelevant and unduly prejudicial.  As such, Plaintiff’s Motion In Limine to preclude that evidence was granted.  

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


For another recent decision from Judge Nealon along the same lines, see the case of Familetti v. Thyssen Krupp Elevator Corp., No. 2013-CV-1486 (C.P. Lacka. Co. April 27, 2017 Nealon, J.) by clicking HERE.

In Familetti v. Thyssen Krupp Elevator, Judge Nealon of the Lackawanna County Court of Common Pleas addressed a Motion In Limine filed by a Plaintiff seeking to preclude any reference to her prior accidents and associated treatment under an argument that such evidence was irrelevant, confusing, misleading, and prejudicial as there was no evidence presented to prove that the prior accidents and injuries caused or contributed to any of the Plaintiff’s current complaints at issue in this trial.

According to the Opinion, the Plaintiff alleged neck and hand injuries as a result of an elevator accident in 2011.  

During discovery, it was disclosed that the Plaintiff had a prior motor vehicle accident in 1991 or 1992 as a result of which she sustained a whiplash injury to her neck that resolved after six (6) weeks of treatment. The Plaintiff was also involved in another prior accident in 2001 or 2002 and sustained injuries to her low back and knee for which she received chiropractic treatment.   The Plaintiff additionally had a prior fall down event in 2009 and was treated for left arm pain with one (1) emergency room visit.  

The court noted that, in the defense IME report, the IME doctor noted that the Plaintiff’s past medical history was generally benign.   It was additionally noted that the defense medical expert did not suggest that the Plaintiff’s current complaints were in any way related to her prior traumatic events.  

The court reviewed the rule of law that, to be admissible, evidence of previous medical complaints must be connected to the complaints at issue and, if they are not, the trial court should exclude the evidence as irrelevant and prejudicial.   Based upon this law, the court granted the Plaintiff’s Motion In Limine.  

Tort Talk Post-Koken Scorecard Updated With Recently Discovered Additional Decisions

Cooper v. MetLife Auto & Home, No. 13-CV-687 (W.D. Pa. Aug. 6, 2013 Conti, J.) (Court denied Defendant’s Motion to Bifurcate the Plaintiff’s bad faith claim from the UIM breach of contract claim after finding that the potential prejudice presented by the situation does not outweigh the interests of judicial economy).  Click HERE to view this decision online.


Consugar v. Nationwide Ins. Co., No. 3:10-cv-2084, 2011 WL 2360208 (M.D. Pa. 2011 Munley, J.) (Court denied Defendant’s Motion to Bifurcate because Plaintiff’s bad faith and UIM claims were based on the same facts and evidence).  Westlaw citation provided.

Yellowbird Bus Co. v. Lexington Ins. Co., Civ. No. 09-5835, 2010 WL 2766987 (E.D. Pa. July 12, 2010) (Court denied Motion to Bifurcate because discovery with respect to the Plaintiffs’ bad faith and UIM claims would substantially overlap).   Westlaw citation provided.


Steele v. Erie Insurance Exchange, No. 4005-2016 (C.P. Westmoreland Co. Dec. 9, 2016)(Court grants Motion to Sever and Stay Bad Faith Claim in Post-Koken matter;  Court also orders that the defendant carrier's Motion for a Protective Order was granted such that all bad faith discovery was stayed until the resolution of the UIM claim).  Click HERE to view this decision online.


Butts v. Erie Ins., No. 10036-2016 (C.P. Beaver Sept. 8, 2016 Kunselman, J.)(When the defendant moved to sever the UIM and bad faith cases and to stay all bad faith discovery, the plaintiff agreed to voluntarily stay bad faith discovery but objected to the severance request arguing that bifurcation was the proper procedural option to avoid alleged prejudice.  The trial court held that, going forward, bifurcation would be the preferred procedure for handling UIM and bad faith cases in Beaver County.).  Click HERE to view this decision online.


Ainsley v. Erie Ins. Exch., No. 1876 of 2014 (C.P. Westmoreland June 2, 2015 Regoli, J.)(Court granted UIM carrier's motion to sever and stay bad faith claim for purposes of discovery and trial. Court specified that bad faith claim was severed and stayed pending resolution of UIM claim).


These decisions have been added to the updated Tort Talk Post-Koken Scorecard, which can always be freely accessed by going to www.TortTalk.com and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on the date thereunder.  In the meantime, here is a quick LINK to the Scorecard.




Tuesday, May 23, 2017

Pennsylvania Unfair Trade Practices Act and Consumer Protection Law Does Not Apply to the Handling of Insurance Claims

In his recent decision in the case of Machado v. Safeco Ins. Co., No. 3:16-CV-1685 (M.D. Pa. April 7, 2017 (Munley, J.), Judge James M. Munley addressed a Plaintiff’s claims under consumer protection law for allegedly abusive claims handling practices by the carrier of her insurance claim.  

The court noted that, in the insurance context, Pennsylvania’s Unfair Trade Practices and Consumer Protection law “applies only to conduct related to the sale of an insurance policy, not to the handling of the insurance claims.”  

However, in a footnote, the court noted that, under the case of Berg v. Nationwide Mut. Ins. Co. Inc., 44 A.3d 1164 (Pa. Super. 2012) the Superior Court found that a violation under the Unfair Trade Practices and Consumer Protection law could serve as evidence to support a bad faith claim.

In the end, the court granted in part and denied in part the Defendant's Motion to Dismiss. 

 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 and Harris.  Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog which you review HERE.  




Friday, May 19, 2017

The Free Law Project Moves to Provide Free Public Access to Federal Court Decisions

The Free Law Project, a non-profit entity dedicated to providing free, public access to legal materials announce plans to download all of the free Opinions and Orders available on PACER, the federal courts' system for electronic access to court records.  The Free Law .Pproject is currently in the process of downloading the documents.  

I send thanks to Attorney Gerald A. Connor, Esquire of the Scranton law office of Margolis Edelstein for bringing this information to my attention.  

Wednesday, May 17, 2017

Western District Magistrate Judge Addressess Facebook Discovery Issues



A Pennsylvania Facebook Discovery decision from last August of 2016 has been brought to my attention.
In the case Hanna v. Giant Eagle, Inc., 2016 U.S. Dist. LEXIS 107253 (W.D.Pa. Aug. 10, 2016 Mitchell, M.J.), a Magistrate Judge in the Western District considered a Defendant's Motion to Compel the production of a Plaintiff's social media information. 

According to the Opinion, the court had ordered Plaintiff to release her social media information to defendants with an Affidavit that her production was all-inclusive.  Plaintiff produced nineteen pages from her social media websites, but failed to include the court-mandated Affidavit. 

The Defendants then filed the Motion to Compel. The Plaintiff then produced the Affidavit and thirty-nine additional pages of new social media entries.  The Plaintiff attested that she provided her attorneys with access to her Facebook, Instagram and Linkedin profiles.  The Plaintiff's attorneys represented to the Court that they reviewed Plaintiff's social media pages and had produced all responsive, discoverable material.

Thereafter, the Defendants requested unfettered access to Plaintiff's social media pages and requested that a third party vendor be permitted review the Plaintiff’s social media pages and provide all relevant material to the parties.  The Defendants also sought sanctions in the form of the dismissal of the action, or fees and costs incurred as a result of having to file the Motion to Compel. 

The Court in Hanna denied the Defendant’s request for the broad third party access and sanctions, relying on the Plaintiff's Affidavit which confirmed that she had provided direct access to the social media pages to her attorneys, and given that Plaintiff's counsel represented to the court that he and his staff reviewed the social media accounts prior to making the production.

As such, some of the Plaintiff’s social media was discoverable, but unrestricted access was denied. 

Anyone wishing to review this decision may click this LINK.


I send thanks to Brian J. Murren, a Dickinson Law student and a law clerk with the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Monday, May 15, 2017

No Bad Faith Found Where UIM Carrier Demanded Statement Under Oath Even Though Deposition Previously Completed

In the case of Ridolfi v. State Farm Mut. Auto. Ins. Co., No. 15-859 (M.D. Pa. April 10, 2017 Carlson, M.J.), Federal Magistrate Judge Carlson of the Middle District granted a carrier’s Motion for Summary Judgment in a UIM bad faith case.  

The Plaintiff had alleged bad faith based upon several allegations including an alleged misstatement of the policy limits, alleged delays in claims processing, insistence by the UIM carrier on a sworn statement under oath even though a deposition had previously been completed two (2) years before in the third party matter, the carrier's persistence in collecting medical records, and a failure on the part of the carrier to comply with insurance regulations regarding period status notices to the insured.  

The court granted summary judgment finding that, “while both parties indulge in occasional missteps in the process of reviewing and litigating this claim, the essentially uncontested evidence does not meet the demanding, concise and exacting legal standards prescribed under Pennsylvania law for a bad faith insurance processing claim.”  

The court reiterated the “well-established” principle law “that it is not bad faith for any insurance company to ‘conduct a thorough investigation into a questionable claim.’”  

The court additionally noted that a carrier can be successful in defending against the bad faith claims by showing that there were “red flags” warranting further investigation into the claims presented.   Accordingly, the court found that delay alone does not amount to bad faith.   Rather, the court found that an inference of possible bad faith only arises when time passes as a part of pattern of a knowing or reckless delay in processing a meritorious insurance claim.  

As part of the decision, Judge Carlson found that there was nothing wrong with the UIM carrier seeking a sworn statement under oath from the Plaintiff in light of the fact that the medical information previously secured or exchanged was in complete.   The court did not accept the Plaintiff’s argument that no sworn statement was necessary as the insured had been deposed two (2) years earlier in the underlying third party litigation.  

The court also noted that the claim against the third party tortfeasor settled for less than the policy limits, a factor that was properly included in the UIM carrier’s evaluation of the claims presented.   The court also noted that the insured had originally demanded over double the UIM policy limits to settle before coming down a policy limits demand.  

Judge Carlson otherwise rejected the Plaintiff’s allegations of violations of the Pennsylvania Unfair Claims Settlement Practices Act and the Unfair Insurance Practices Act, specifically with respect to the regulatory requirement that a UIM carrier provide 45 day updates on the status of insurance claims.  The court recognized that, while violations of this insurance rules can be considered when examining a bad faith claim under §8371, the violations of these Acts in and of themselves do not amount to a per se violation of the bad faith standard.  

As stated, the court entered summary judgment in favor of the UIM carrier and bad faith claims.  

Anyone wishing to review this decision by Federal Magistrate Judge Carlson may click this LINK.



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

SAVE THE DATE: JUNE 9, 2017 LACKAWANNA PRO BONO GOLF TOURNAMENT


Westmoreland County Court of Common Pleas Severs Post-Koken UIM/Bad Faith Claims But Refuses to Stay Bad Faith Discovery Efforts

In a recent Order of Court out of the Westmoreland County Court of Common Pleas in the case of Madeja v. State Farm Mutual Automobile Ins. Co., No. 5493 of 2016 (C.P. Westmoreland Co. April 11, 2017 Scherer, J.), the court granted in part and denied in part the carrier Defendant’s Motion to Sever and Stay Bad Faith Claims from the UIM claims for both discovery and trial purposes.  

The wrinkle in this case is that the Plaintiff pled both common law bad faith claims and statutory bad faith claims.

The court granted the Defendant’s Motion to Sever in terms of separating UIM claim and the bad faith claims for purposes of trial.   The Court noted that the UIM claim would be tried before a jury first and that, after the return of a verdict on the UIM claim, if necessary, the bad faith claims would be heard with the same jury that determined the UIM claim deciding the common law bad faith claim and with the court deciding the statutory bad faith claim on a non-jury basis. 

The court otherwise denied the Defendant’s Motion to Stay Discovery relative to the bad faith claims.  

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

I send thanks to Attorney Neil O’Donnell of the Kingston, Pennsylvania O’Donnell Law Offices for bringing this decision to my attention.  

Motion to Bifurcate Trial of Post-Koken UIM/Bad Faith Claims Denied in Eastern Federal District Court of Pennsylvania

BIFURCATION DENIED


In the recent Federal Eastern District Court of Pennsylvania case of Reeves v. Travelers Cos., No. 16-6448 (E.D. Pa. April 11, 2017 Baylson, J.), the court denied an insurance company’s Motion to Bifurcate the UIM Bad Faith and Breach of Contract Claims arising out of a motor vehicle accident. 

The carrier argued that the evidence and testimony regarding the bad faith claim would be irrelevant to the breach of contract UIM claim and would only confuse the jury on the case presented.   

The carrier also asserted that evidence from the bad faith claim would unduly influence the jury’s decision against the carrier in the breach of contract claim.   

The carrier additionally asserted that, if the breach of contract claim was resolved or concluded in favor of the carrier, then the bad faith claim would be rendered moot.  

The Plaintiff asserted, in part, that bifurcation would be inefficient because the carrier’s conduct alleged in the bad faith claim was the very same type of conduct alleged in support of the breach of contract claim. 

The court found that the carrier did not meet its burden of demonstrating that the prejudice it would face from trying both claims together would outweigh the detrimental effects of bifurcation upon the parties in the court in terms of judicial economy.   The court noted that bifurcating the matter would unnecessary prolong the case.   The court additionally stated that, while the two claims were separate, the evidence related to both claims was similar.   The court found that presenting the same evidence to two separate juries would constitute a waste of resources.  

The court also rejected the carrier’s position that a finding for the carrier on the breach of contract claim would automatically render the bad faith claim moot.  In this regard, the court stated that Pennsylvania law allows for the recovery for bad faith due to an undue delay in processing a claim.  


Anyone wishing to read this decision may click this LINK.


I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Law blog for bringing this decision to my attention.  

 

Thursday, May 11, 2017

Pennsylvania Superior Court Revisits Sackett Stacking Issues

For the Pennsylvania Superior Court’s latest pronouncement on Sackett issues pertaining to stacking of insurance coverage, see the case of Pergolese v. Standard Fire Insurance, No. 1467 EDA 2014 (Pa. Super. April 11, 2017 Ford Elliott P.J.E., Stabile, J., Strassburger, J.) (Maj. Op. by Ford Elliot)(Strassburger, J., Concurring)(Stabile, J., Dissenting).  

In this decision, the Superior Court affirmed the entry of summary judgment in favor of the Plaintiff in a declaratory judgment action on stacking issues.   

The court found that a family that initially chose not to stack insurance coverage for the cars they owned could still recover stacked insurance benefits after they added a new car to the policy several years after the purchase of the policy where the insurance carrier failed to obtain a waiver from the insured opting out of stacked coverage.   

The court ruled that the addition of a new car under the circumstances presented in this matter constituted a new purchase of uninsured and underinsured motorist coverage that required the carrier to secure the waiver.  The court found that no “after-acquired-vehicle clause” applied that would have removed the requirement for a new waiver.  

Anyone wishing to review a copy of this Majority Opinion by Judge Kate Ford Elliott may click this LINK.   

Judge Strassburger's Concurring Opinion can be viewed HERE.

The Dissenting Opinion by Judge Stabile may be viewed at this LINK.

Source:  Article: “Panel Opens Door to Stacked Coverage and Waiver Isn’t Secured,” By:  Max Mitchell, Pennsylvania Law Weekly (April 18, 2017). 

Monday, May 8, 2017

Court Addresses Ability of One Plaintiff's Estate to Intervene in a Petition for Court Approval of Another Plaintiff's Estate's Settlement in a Consolidated Matter

In a recent Opinion issued in the case of Coleman v. Bachert, No. S-890-2011 (C.P. Schuylkill Co. April 11, 2017 Goodman, J.), Judge James P. Goodman addressed an emergency motion filed by one estate of a deceased Plaintiff to challenge the settlement secured by the estate of another deceased Plaintiff in a consolidated personal injury civil litigation matter. 

This matter arose out of a motorcycle accident during which one Plaintiff’s decedent was operating the motorcycle and the other, separate Plaintiff’s decedent was a passenger on the motorcycle.   

Judge James P. Goodman
Schuylkill County
After the estate for the decedent passenger secured a settlement from the liability carrier under a single limit liability policy, the estate for the decedent driver requested permission of court to participate in the court approval proceedings relative to the wrongful death settlement in favor of the passenger decedent, asserting that the settlement of that claim could negatively affect the minor Plaintiffs associated with the estate for the decedent driver. 

The estate for the decedent passenger challenged the standing of the estate for the decedent driver to participate in the court’s proceedings for the approval of the settlement in favor of the decedent passenger.  

In part, the estate for the decedent driver asserted that the substantial proposed settlement in favor of the decedent passenger was unfair to the minors represented by the estate for the decedent driver in that it depleted the single liability limits available under the carrier’s policy.   The estate for the decedent driver requested the court to conduct an adjudication on the merits based upon an evidentiary record to review the appropriateness of the proposed settlement in favor of the decedent passenger and to consider the interests of the estate of decedent driver.  The estate of the decedent driver also requested permission for it to fully participate in the court approval of settlement proceedings relative to the settlement in favor of the plaintiff passenger.

In the alternative, the estate of the decedent driver contended that it had standing as a third party beneficiary to the liability carrier’s policy allegedly entitling that estate to participate in the hearing to approve the proposed settlement in favor of the other decedent’s estate.  

In his Opinion, Judge Goodman of the Schuylkill County Court of Common Pleas denied the emergency petition filed by the estate of the decedent driver.   In so ruling, the court found that the estate of the decedent driver was unable to provide the court with any legal interest or authority that the estate of the decedent driver had in the settlement between the settling Defendants (and that Defendant’s carrier), and the estate of the Plaintiff-passenger.  

The court noted that no case law or any other authority had been produced “that would prevent an insurance company from settling a case with one Plaintiff to the detriment of another Plaintiff or that would require the settlement to protect insurance funds for the non-settling Plaintiff.”  

Judge Goodman went on to state that “the case law supports that the insurance company is entitled to determine how to settle cases for policy limits, albeit, it must exercise good faith to its insured.” 

The court noted that the purpose of Rule 2206 is to ensure a fair settlement to a settling party.  Here, the estate of the decedent driver was not the settling party and was also noted to have interests that were adverse to the estate of the decedent passenger.   Accordingly, the court found that the estate of the decedent driver lacked standing under the rule to participate in the settlement approval proceedings between the settling Defendants and the estate of the Plaintiff passenger. 

The court also rejected the third party beneficiary argument presented by the estate of the decedent driver.   The court noted that there was no language in the insurance policy covering the Defendant that identified any injured party at a third party beneficiary to that contract.   As such, the court found that there was no support for the assertion that the estate of the decedent driver was a third party beneficiary of the liability policy.  

Judge Goodman otherwise also noted that “it is well-settled that under Pennsylvania law, an injured party has no right to directly sue the insurer of an alleged tortfeasor unless a provision of the policy or a statute creates such a right.”   [citations omitted].  


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



Friday, May 5, 2017

TORT TALK PRACTICE TIP

ENGAGE TIPSTAFF

Upon arriving in any courtroom, introduce yourself to the Judge's Tipstaff and engage them.  Tipstaffs usually have a wealth of information to provide on how things work in a particular courtroom and are usually friendly and eager to provide assistance.

Ask for information on local procedures and preferences of the Judge.

For trials, ask the Tipstaff questions such as how the jury will be brought in for voir dire so you can create a "map" or chart of where the jurors will be seated on your notepad to assist you in keeping their voir dire responses straight.

Also ask the Tipstaff whether the judge prefers sidebars or not, etc. at trial.  If you are in from out of town, Tipstaffs can also recommend a good place for lunch.

Most Tipstaffs will welcome the opportunity to be helpful in this regard which will help to make your court visit a bit less stressful.

Thursday, May 4, 2017

TORT TALK IS 8 YEARS OLD TODAY



Today the Tort Talk Blog turns 8 years old--time flies when you're writing about the law.  I thank you for reading the blog and also thank all those who have sent me cases or tips on cases and trends--it is all greatly appreciated.

Here's a LINK back to the very first Tort Talk Blog post from May 4, 2009.




Wednesday, May 3, 2017

UIM Claims Found Barred by General Release Signed by Plaintiff

In the case of Crisp v. Ace Am. Ins. Co., No. 150902953, 3167 EDA 2016 (C.P. First Judicial District March 7, 2017 Cohen, J.), the court issued an Rule 1925 Opinion asserting that its decision to dismiss a motor vehicle accident Plaintiff’s underinsured motorist claim against her employer’s insurer should be affirmed by the appellate court because the Plaintiff, after consulting with a lawyer, signed a General Release releasing “any and all other persons or entities whatsoever.”  

The trial court granted summary judgment in favor of the carrier’s insurer in which that company asserted the Plaintiff’s claims were precluded by the General Release.  

In support of its decision, the trial court stated that it was settled Pennsylvania law that General Releases should be enforced against all parties listed in the Release, even when the party at issue is not listed by name and did not provide any consideration in support of the Release.  

The court also noted that the Plaintiff made no allegations that she had signed the Release because of fraud, accident, or mutual mistake.  Rather, the Plaintiff acknowledged that she had reviewed the Release with an attorney and agreed to be bound by its provisions.  

Anyone wishing to review this decision may click this LINK.

Tuesday, May 2, 2017

ARTICLE: Do Act 6 Reductions Under MVFRL Apply Outside of Pa.?


Insurance Law

Do Act 6 Reductions Under MVFRL Apply Outside of Pa.?
by

Daniel E. Cummins, Pennsylvania Law Weekly

Publication Date:  April 25, 2017    

Dan Cummins

 
A common issue faced by Pennsylvania automobile insurance carriers is whether the allowable reductions under Act 6 apply to the bills issued by out-of-state medical providers for treatment rendered as a result of a motor vehicle accident.

More specifically, where a Pennsylvania resident with a Pennsylvania automobile insurance policy gets into an accident in another state, such as in New Jersey, New York, Maryland or Delaware, and treats with medical providers in that other state, is the first party medical benefits carrier entitled to pay only the Act 6 reduced amounts of the related medical expenses as set forth under 75 Pa.C.S.A. Section 1797?

Open Issue

This issue appears to be an open one in the apparent absence of any case law specifically addressing the question presented.

It certainly appears that any medical bills issued by any Pennsylvania medical provider are subject to Act 6 reductions regardless of the place of the accident.

However, excepted in very limited circumstances noted below, it appears that medical bills issued by an out-of-state medical provider would be addressed by the law of that other state and not by Pennsylvania's Act 6 reduction statutory framework.

Effect of Policy Language Limited

Typically the first place to look in determining the answer to any coverage question would be the insurance policy at issue. Courts will usually follow policy language agreed by the parties to resolve any disputes unless that policy language is found to violate Pennsylvania law or go against recognized public policy concerns.

Some auto policies may contain language mandating that any payment of first party medical benefits will be made pursuant to Section 1797 (a) of the Pennsylvania Motor Vehicle Financial Responsibility Law.

Accordingly, the courts of Pennsylvania could possibly construe this language as indicating that payment of any medical expenses under this policy would be under the Act 6 reductions required by Section 1797 regardless of where the treatment is completed as this was what was agreed to by the parties under this insurance contract.

However, such an analysis pertaining to the applicability of the policy language would be limited by pertinent provisions of the Pennsylvania Code. Under the below limitations of the Pennsylvania Code, it does not appear that a carrier's first party benefits policy language would carry the day on the issue of whether Pennsylvania's Act 6 reductions could be applied to an out-of-state medical provider's bills.

Under 31 Pa. Code Section 69.11 of the Pennsylvania Code, it is provided, as follows:

"Section 69.11. Payment limitation applicability.

• The payment limitations of Act 6 apply to a provider rendering services to an injured person whose medical costs are covered by automobile insurance issued under the MVFRL. The payment limitations of Act 6 also apply to providers not currently participating in Medicare.

• The payment limitations of Act 6 apply in cases when care is rendered by a Pennsylvania licensed provider to a Pennsylvania resident covered by automobile insurance for injuries arising out of the maintenance or use of a motor vehicle, irrespective of where the injuries occurred or where the care is rendered."

This code language was taken from the 1991 regulations issued by the insurance commissioner after the MVFRL was updated. In particular, Section (b) allows for Act 6 reduction only against a Pennsylvania medical provider to a resident, regardless of where the care is rendered or where the injuries occurred.

Accordingly, it appears certain that where an individual is entitled to first party medical benefits from a carrier is injured in an out-of-Pennsylvania motor vehicle accident, any treatment by any Pennsylvania medical provider would be subject to the Act 6 reductions pursuant to the policy language and this Pennsylvania code language.

Although no case law on this issue has been found, it is noted that this code provision has been construed by litigators as mandating that the Act 6 reductions specifically only apply to Pennsylvania medical providers and not to out-of-Pennsylvania providers.

Also, due process and constitutional law issues would likely come into play to prevent Pennsylvania's Act 6 reductions to be applied to out-of-state medical providers seeking full payment for the medical treatment they have provided to the patient.

However, an argument can be made under the above Pennsylvania code provision that, if the out-of-state medical provider is also licensed to practice in Pennsylvania, then Act 6 reductions could be apply to that medical provider's medical bills. This is so under the code language that an Act 6 reduction is permitted against a Pennsylvania medical provider for treatment rendered to a Pennsylvania resident, "irrespective of where the injuries occurred or where the care is rendered."

It is also otherwise noted that, depending upon the law of that other state where the treatment was rendered, the Pennsylvania first party carrier may or may not be able to subrogate against the tortfeasor defendant in an effort to secure a payback of the first party benefits paid out under the policy. This would depend upon the law of that other state. •

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins (www.foleycomerfordcumminslaw.com). His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.