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.
 
 
 

Discovery of Private Portions of Plaintiff's Facebook Profile Denied



Another Facebook Discovery decision has been uncovered.  In the case of Clapsadle v. Barkman, No. 2015-1896 (C.P. Franklin Co. Sept. 15, 2016), the court denied a defendant's motion to compel plaintiff to answer interrogatories regarding the content of the plaintiff's private portions of his Facebook profile after finding that the information contained on the public pages did not support an argument that relevant information would be revealed from a review of the private pages.

The court did order a hearing to address issues of spoliation after finding that the plaintiff violated a prior court order that specifically directed the plaintiff not to delete or erase any information on the profile.

I do not have a copy of this decision.  If anyone has access to this decision and is willing to email a copy to me I will upload it online and advise as to its availability in a future Tort Talk post.

Source: Course Material from PAAJ's 2017 Annual Auto Law Update CLE.

Tuesday, July 11, 2017

Summary Judgment Granted in Monroe County Supermarket Slip and Fall Case

In the case of Baboolal v. Bracey's Mt. Pocono, Inc, No. 8464 CIVIL 2015 (C.P. Monroe Co. Feb. 27, 2017 Williamson, J.), the Monroe County Court of Common Pleas granted summary judgment in favor of a Defendant supermarket in a case where a  Plaintiff allegedly slipped and fell due to a grape and/or moisture on the floor.  

The Plaintiff alleged that he was caused to fall when her shopping cart slid due to moisture on the floor, causing her to fall to her knees and allegedly sustain injuries.  

The court found that there was no evidence of an actual constructive notice on the part of the Defendant store of these conditions.  

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

 Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (May 23, 2017). 

Summary Judgment Denied in Monroe County Premises Liability Case

In the case of Brown v. Stroud Mall, No. 7599 CIVIL 2013 (C.P. Monroe Co. Aug. 23, 2016 Sibum, J.), the Plaintiff alleged injuries as a result of her foot becoming entangled in what appeared to be a wire strung across a hall of a local mall.   The Plaintiff filed a Complaint for negligence.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff had not established a duty owed to the Plaintiff and/or that the Plaintiff had failed to show actual constructive notice on the wire on the part of the Defendants.  

The Defendants argued that the presence of security staff patrolling the area within an hour of the Plaintiff’s encounter with the wire supported their argument that the wire did not exist for such a period of time that it could have been corrected through the exercise of reasonable care.  

The court denied the Motion for Summary Judgment indicating that the question of whether a landowner had constructive notice of a dangerous condition was an issue to be left to the jury to decide where reasonable minds could differ on the issue.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (May 23, 2017).  

Friday, July 7, 2017

TORT TALK PRACTICE TIP


LOOK AHEAD

Periodically look ahead on your calendar 30-45 days to see what’s coming down the pike.  Lawyers hate surprises; clients hate them more. 

By repeatedly looking ahead you may be lucky enough to never again experience that awful feeling in the pit of your stomach that comes when you forgot to tell a client about tomorrow’s settlement conference with the court.

Looking ahead on your calendar also allows you to get a jump start on that motion or brief that may be due 30 days or so down the line.  Having more time to write means having more time to research and edit, and re-edit, which guarantees a better final product that covers all of the applicable law and argument.  

Thursday, July 6, 2017

Diversity Minimum Dollar Amount Found to be Met in Federal Court UIM Bad Faith Action

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 the Koerner 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.   

Wednesday, July 5, 2017

Post-Koken Venue Decision out of Dauphin County

In a Post-Koken case from back in December, 2016 entitled Colman v. Malave and State Farm, No. 2015-CV-10242 CV (C.P. Dauph. Co. Dec. 13, 2016 Tully, J.), the court granted a tortfeasor Defendant's Preliminary Objections to the Plaintiff's Amended Complaint and transferred venue of the case to Lancaster County.

According to the Opinion, the accident occurred in Lancaster County and the tortfeasor Defendants resided in Lancaster County.  The court otherwise noted that there was no forum selection clause in the State Farm policy and that, in any event, the tortfeasor Defendants and the UIM carrier were not joint tortfeasors for venue purposes or otherwise.

This Opinion is also interesting in its review of the law of the case doctrine given that this decision essentially overruled a prior decision of another judge on the same bench in the same case and on the same issues.

Anyone wishing to review this decision may click this LINK.

Source:  CLE Materials from Annual Auto Law Update Seminar by Pennsylvania Association for Justice.

Friday, June 30, 2017

Amount of Advertising in a County by a Defendant Does Not Support Venue; Transfer of Venue Granted

In the case of Wyszynski v. Greenwood Gaming & Entertainment, Inc., 2017 Pa. Super. 108 (Pa. Super. April 17, 2017) (Op. by Ransom, J.), the Pennsylvania Superior Court ruled that a trial court did not abuse its discretion of transferring a slip and fall case from Philadelphia County to Bucks County under the case presented.  

According to the Opinion, the Defendant’s registered office and principal place of business was in Bucks County and the cause of action occurred in Bucks County.

The Plaintiff attempted to file in Philadelphia under an argument that the amount of the Defendant’s advertising in Philadelphia supported venue in that county.

The Superior Court rejected this argument and noted that the case law make clear that advertising was incidental to the purpose of a business and that, therefore, no matter how pervasive a business’ advertising was, such advertising would not satisfy the test for venue set forth in the case of Purcell v. Bryn Mawr Hospital, 579 A.2d 1282 (Pa. 1990). 

As such the Superior Court found that the trial court did not abuse its discretion in transferring the case to Bucks County.

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


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

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.