Friday, December 8, 2017


Here is a LINK to a complimentary copy of the 62 page Tort Talk 2017 Civil Litigation Update booklet that I created for use at the recent Lackawanna Bench Bar Conference as well as the Luzerne County Bench Bar Conference.

The Tort Talk 2017 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and is offered here free of charge for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering a small donation to the charity of your choice, your local Pro Bono Office, or perhaps to the Children's Advocacy Center in Scranton which is a private non-profitable charitable organization whose mission is to provide excellence in the assessment and treatment in child abuse and neglect case.  The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510.  Here is a LINK to their website.  Just a thought.

Thanks for reading Tort Talk and for providing me with notable cases to highlight on Tort Talk.  All is much appreciated.

Thursday, December 7, 2017

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

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

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

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

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

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

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

I do not have a copy of this case. 

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

Tuesday, December 5, 2017

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

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

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

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

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

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

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

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

New Trial Ordered Given Statute of Limitations Issues

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

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

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

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

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

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

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



Monday, December 4, 2017

ARTICLE: Mandated Coverages for Uber and Lyft Vehicles

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

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

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

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

A New Law

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

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

Insurance Coverage Requirements

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

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

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

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

Priority of Coverages

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

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

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

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

Other Notable Provisions

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

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


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at Cummins also provides Mediation Services at Cummins Mediation Services.  

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

Friday, December 1, 2017



Simply put, we should treat others as we would wish to be treated in similar circumstances. 

While zealous advocacy has its place in the practice of law, there is a clear difference between fighting for one’s client and engaging in unnecessarily vexatious conduct. Litigating issues, particularly tangential issues, just for the sake of litigation is a waste of time and energy and has no place in an upstanding practice of law.

So, be nice.

What goes around, comes around.

Wednesday, November 29, 2017

Interesting Superior Court Ruling on Permissible Use of Powerpoint During Closing Argument

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

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

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

This decision is otherwise notable for the Superior Court’s decision that the trial court should have required clarification as to which part of a witness’s testimony was lay opinion testimony and which part was expert opinion testimony where that single witness gave both types of opinion testimony.   The Superior Court found that, since no clarification was given at the trial court level, this was reversible error. 

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

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

Monday, November 27, 2017

Judgment on the Pleadings Entered in UIM Case After Plaintiff Secured Liability Limits From Tortfeasor in Binding Arbitration of Third Party Claim

In the case of Tenbus v. Progressive Direct Ins. Co., No. 548-CV-2016 (C.P. Wayne Co. Nov. 22, 2017 Hamill, J.), Judge Raymond L. Hamill entered a Judgment on the Pleadings in favor of a UIM carrier after finding that the Plaintiff failed to state a valid UIM claim under Pennsylvania's Motor Vehicle Financial Responsibility Law and the policy definition of an "underinsured motor vehicle" where the Plaintiff was awarded the full liability limits of the tortfeasor in a related binding arbitration of the third party claims.

In dicta, the court also noted that the Plaintiff's UIM claim was barred by the collateral estoppel doctrine as well.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney David Friedman of the King of Prussia office of the Forry Ullman law firm for bringing this case to my attention.

Pennsylvania Supreme Court Clarifies When Statute of Limitations Begins to Run in Uninsured (UM) Motorists Benefits Claim

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

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

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

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

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

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

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

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

The Majority Opinion from Bristol can be read HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott Cooper for bringing this case to my attention.

Defense Verdict Entered in Philadelphia County UIM Bad Faith Claim (Bench Trial)

In the UIM bad faith Camiolo v. Erie Ins. Exchange, July Term No. 1750 (C.P. Phila. Oct. 2017 Colins, J.), the court entered a verdict in favor of the carrier on the statutory bad faith claim after a bench trial.

In the Opinion, the court provides a nice recitation of the current status of bad faith law in Pennsylvania, including the recent Supreme Court decision in Rancosky.  The decision notes the following points of  bad faith law pertinent to the handling of UIM claims as well as with respect to settlement negotiations in such matters.

-UIM carriers are bound by a duty to afford good faith and fair dealing when handling the claims of its insureds

-Where a claim's value is uncertain, the carrier cannot be faulted for undertaking a thorough investigation

-Delay in processing a claim, standing alone, does not establish bad faith

-Low but reasonable valuations do not amount to bad faith particularly where reasonable minds may differ on a fair evaluation of the claims presented

-In managing a UIM claim, it is reasonable for the carrier to negotiate the same way as if it were handling an adversarial third party claim.

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

I send thanks to Attorney Brooks Foland of the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Deposition of Claims Rep Allowed In Lackawanna County Post-Koken Case

In the case of Novoczynski v. Swingle et al., No. 2016-CV-6538 (C.P. Lacka. Co. Nov. 20, 2017 Gibbons, J.), the court granted a Plaintiff's Motion to Compel a claims representative's deposition and denied a carrier Defendant's Motion for a Protective Order in a Post-Koken auto accident case.

While the court allowed the deposition, the court also ordered that the Plaintiff was not permitted to inquire into the claims representative's mental impressions, conclusions or opinions respecting the value or merit of the claims or defenses, or with regards to strategy or tactics.  In this regard, the court cited to Pa.R.C.P. 4003.3.

Anyone wishing to review this decision may click this LINK.

Wednesday, November 22, 2017

Motion To Dismiss Bad Faith Complaint Denied

In the case of Meyers v. Protective Ins. Co., No. 3:16-cv-01821 (M.D. Pa. Oct. 10, 2017 Caputo, J.), the court denied a second Motion to Dismiss filed against a bad faith claim alleging issues with the investigation and claim evaluation by the Defendant carrier. 

It is noted that this UIM bad faith was previously dismissed for failure to state a plausible claim.   After the Plaintiff was given leave to amend the Complaint, the carrier again filed a Motion to Dismiss in this uninsured motorist claim matter.   As noted, the court denied the second Motion to Dismiss.  

The court found that the Amended Complaint set forth factual support to allegations that the carrier refused to promptly communicate with Plaintiff, repeatedly misrepresented matters to the Plaintiff, and allegedly failed to comply with various insurance regulations. 

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

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

Tuesday, November 21, 2017


Sending you warm wishes for a Happy Thanksgiving for you and your family.

Thank you for reading and supporting Tort Talk.

With gratitude, 
Dan Cummins

Monday, November 20, 2017

Split in Authority on Post-Koken Bifurcation of Trial Issues

In the Blair County Court of Common Pleas case of Swan v. Moorefield, No. 2014 GN 2606 (C.P. Blair Co. Sept. 9, 2017 Kagarise, J.), the court denied a UIM carrier’s Motion to Sever and Stay Bad Faith Claims in a post-Koken matter.  

According to the Opinion, the Motion to Sever was filed pursuant to Pa. R.C.P. 213(b).   The court noted that the determination of whether to sever cases was within the discretion of the trial court and that the court should make this determination based upon the particular facts and circumstances of the case before it.  

In his Opinion, Judge Wade pointed to a prior Blair County decision in favor of the severance of a UIM claim from the bad faith claim in the case of Raia v. Agency Ins.  Co. of Maryland (C.P. Blair Co. March 2, 2017 Doyle, P.J.).  

However, Judge Wade noted that there were several differences between the case before him and the facts in the Raia case.  

For example, Judge Wade noted that, in the Raia case, Judge Doyle had reasoned that separating the causes of action would decrease discovery disputes and allow both cases to proceed more smoothly.   In the Swan case, the motion was filed three (3) years after the Complaint was file and, as such, the court noted that many of the discovery disputes had already been raised and resolved.  Accordingly, the court felt that “granting severance now [in the Swan case] is akin to shutting the stable door after the horse has bolted.”  

The court also noted that it was sensitive to the fact that severing could further drag out the resolution of the bad faith claims in this already three (3) year old case.  

The court was also influenced to deny the request for severance under the Plaintiff’s argument that a severance of the case would necessitate a second jury trial on the common law (as opposed to the statutory) bad faith claims raised by the Plaintiff.  

While the court denied the request for severance of the claim during the course of discovery, the court in Swan otherwise noted that it would consider a Motion for Bifurcation at a later time in the proceedings. 

In this regard, the Swan court pointed to the decision by the Westmoreland County Court of Common Pleas in the case of Madeja v. State Farm Mut. Auto. Ins. Co. (C.P. Westmoreland Co. April 11, 2017) in which the court did not sever the causes of action but did bifurcate the trial proceedings.   The Swan court found that there was “significant merit to the approached taken in the Madeja case and felt that the Madeja court’s reasoning was appropriate in the instant matter.   However, as the issue of bifurcation was not currently before the Swan court, the court did not rule on that particular issue.  

As stated, the court in Swan ultimately denied the Defendant’s Motion to Sever and Stay the extra contractual claims.  Accordingly, there is a split of authority on this issue within Blair County which mirrors the split of authority on this issue across the state courts in the Commonwealth of Pennsylvania. 

Anyone wishing to review this case may click this LINK

Thursday, November 16, 2017

Judge Caputo of Federal Middle District Court Denies Motion to Sever and Stay Post-Koken Bad Faith Claim

In his recent decision in the case of Mulgrew v. GEICO, No. 3:16-cv-02217 (M.D. Pa. Oct. 11, 2017 Caputo, J.), the court denied a Defendant’s Motion to Sever and Stay the Plaintiff’s bad faith claim in a underinsured motorist matter. 

 The court referred to Federal Rule of Civil Procedure 21 which grants the Federal District Courts broad discretion in deciding whether or not to sever a case.  

Judge A. Richard Caputo
Judge Caputo noted that the factors used to decide a Motion to Sever under Rule 21 are the same as utilized in deciding a Motion to Bifurcate under Rule 42(b).  

The court differentiated between the two rules by indicating that a Rule 21 severance essentially creates a separate case, the disposition of which is final and appealable, whereas Rule 42(b) does not create a new case but bifurcates issues or claims within a single case for separate trials.   A claim that is bifurcated under Rule 42(b) is not final and appealable as long as the other claims in the case remain unresolved. 

The factors to be considered in deciding such motions to sever or bifurcate in Federal Court cases includes the following:

-           Convenience of the parties
-           Avoiding prejudice, and
-           Promoting expedition and economy

In denying the Motion, Judge Caputo found that both the convenience of the parties and the judicial economy weighed against severance.   The court also rejected the Defendant’s claim that the resolution of the breach of contract action could greatly impact and potentially moot the bad faith claim.  The court noted that litigation on the bad faith claim is not contingent upon the success of the breach of contract claim in that a Plaintiff could simultaneously prevail on a bad faith claim while losing the UIM claim.   The court also found that severance would hinder judicial economy by requiring separate cases and separate trials instead of handling these claims within a single action.  

The court additionally opined that the potential prejudice to the carrier of litigating the breach of contract and bad faith claims at the same time did not outweigh the countervailing goal of judicial economy in the prompt resolution of the entire matter.  

For these reasons, Judge Caputo denied the Motion to Sever and Stay the Plaintiff’s Bad Faith Claim.  

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

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

Tuesday, November 14, 2017

Validity of a UIM Waiver of Stacking Form Reviewed by Pennsylvania Superior Court (Non-Precedential)

In the non-precedential decision by the Pennsylvania Superior Court in the case of DeCrosta v. Erie Insurance Group, No. 2982 E.D.A. 2016 (Pa. Super. Oct. 18, 2017) (Bender, P.J.E., Dubow and Musmanno, J.J.) (Mem. Op. by Musmanno, J.),  the court reviewed a dispute between an insured and its carrier over whether the insured was entitled to stacked UIM coverage under the case presented.  

The dispute between the parties revolved around the validity of a 2004 Waiver of Stacking Underinsured Motorist Coverage Limits form, and the continued application of that waiver through the removal of a motor vehicle from that policy and the addition of a separate vehicle in its place.  

The appellate court affirmed the trial court’s entry of summary judgment against the insured.   In so ruling, the appellate court rejected the insured’s arguments with respect to the waiver form allegedly being hand-dated by an anonymous person and given that there was no evidence produced concerning the validity of the allegedly anonymous dating of the document.  

The Superior Court noted that, in order to be valid under 75 Pa.C.S.A. Subsection 1738(d) of the MVFRL, a UM/UIM Stacked Insurance Waiver form must be signed, but not necessarily dated, by the insured.   In this case, there is no dispute that the insured had signed the waiver form.  

Accordingly, the appellate court found that the trial court did not err in ruling that the 2004 waiver form was valid and that its validity did not hinge upon who dated the document.  

As to the second issue raised by the Plaintiff, the court rejected the Plaintiff’s arguments with regard to whether a vehicle added to the policy constituted a “replacement vehicle, i.e., the insureds have merely replaced covered vehicle with another, and whether the carrier was required to present to the insured the opportunity to execute a new UM/UIM Waiver form.  

The appellate court affirmed the trial court’s Opinion that the vehicle added to the policy was a replacement vehicle under the definition provided by the policy.  As a replacement vehicle, the carrier was not required to have a new stacking waiver executed. 

Accordingly, the appellate court agreed with the trial court’s finding that the 2004 waiver form remained applicable and that, therefore, the insured had waived stacked coverage. 

Anyone wishing to review a copy of this non-precedential decision may contact me at
I send thanks to Attorney Domenic S. Sbrocchi of the King Spry law firm in Bethlehem, PA for bringing this case to my attention.

Monday, November 13, 2017


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

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

The certification that shall accompany each filing is required to be in substantially the following form:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other documents noted below will have to be filed as well.

Here is a LINK to the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts.

Here is a LINK to the "Explanatory Report" on the Public Access Policy of the Unified Judicial System of Pennsylvania.

Here is a LINK to the Confidential Information Form which shall be filed whenever a party is required to submit documents or filings containing confidential information with the court filing.

Here is a LINK to a Confidential Document Form which is required to be filed whenever documents attached to the filing contain confidential information that should be shielded from the public.

Thursday, November 9, 2017

ARTICLE: The Art of Mediating: The Goal is to Settle, Not Win

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through my venture at Cummins Mediation Services.  Please contact me at for my resume, fee schedule or to arrange for a Mediation.   Thank you.

The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    


Daniel E. Cummins

With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at  Attorney Cummins also provides Mediation services through Cummins Mediation Services.

Tuesday, November 7, 2017

Timeliness of Recusal Motion Reviewed by Pennsylvania Supreme Court

In the Pennsylvania Supreme Court decision in the case of Lomas v. Kravitz, No. 87 MAP 2016 (Pa. Sept. 28, 2017)(Maj. Op. by Baer, J.)(Dissenting Op. by Saylor, C.J.), the Court affirmed the Superior Court's decision that a recusal motion was untimely where it was filed six weeks after the moving party admittedly learned of the facts supporting a request for recusal.

In this matter, which arose out of a contractual dispute in a construction matter, the Plaintiff asserted that the entire trial court bench should recuse itself from the matter when one of the litigating attorneys involved in the matter was elected to serve as a County Judge on the same Bench.

As noted, the Supreme Court affirmed the finding that the moving Party waived their recusal claim after waiting too long to file the same.

Anyone wishing to review the Majority Opinion may click this LINK.

The Dissenting Opinion may be viewed at this LINK.

Friday, November 3, 2017



Many articles have been written on the health dangers of sitting all day.  Some say that sitting is the new smoking.

Standing up whenever you get on the phone will break up your sitting all day at the office and may benefit your health in the long run.

And while your on the phone try smiling when speaking.  Your good cheer will travel through to the person on the other end and benefit the both of you.

Wednesday, November 1, 2017


Are you looking to try to resolve cases before the end of the year?

I welcome the opportunity to assist you in settling your case through CUMMINS MEDIATION SERVICES.

In addition to my own personal experience of sitting through innumerable settlement conferences as a law clerk for Judge Harold A. Thomson, Jr. of Pike County at the beginning of my career, I have also participated in successful Mediations over the past 17 years as both a litigator and as a Mediator in the Federal Middle District Court Mediation Program.  I have additionally attended many continuing legal education courses in an effort to further hone my skills and tools related to fostering ongoing negotiations at Mediations.

To schedule a Mediation, please contact me at or at 570-346-0745.

Resume and fee schedule available upon request.

Friday, October 27, 2017

ARTICLE: Service of Process: Pitfalls Can Be Avoided by Good Faith Efforts

The below article written by my associate attorney Stephen T. Kopko and myself recently appeared in the October 17, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission.       

Service of Process: Pitfalls Can Be Avoided by Good Faith Efforts

Stephen T. Kopko and Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly

As practitioners, attorneys sometimes tend to overlook the small, mundane, but otherwise extremely important tasks. However, this neglect can lead to a variety of troubles in your practice and for your client. One example in this regard pertains to the task of perfecting service of original process on a defendant, particularly when this is attempted close to the expiration of the applicable statute of limitations. If a plaintiff does not follow through and make a good faith effort to serve original process in a timely manner, then there is a serious risk that the action may be dismissed.

According to Pa. R.C.P. 401(a), original process shall be served in the commonwealth by the Sheriff's Department within 30 days after the issuance of a writ or the filing of a complaint, Pa. R.C.P. 401(a).

The plain language of Rule 401 prevents a plaintiff from commencing an action to protect the statute of limitations, and yet delay the service of the notice of the litigation to the defendant, thereby undermining the purpose of the statute of limitations, as in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). The purpose of the statute of limitations is to expedite litigation and thereby discourage any delay of the presentation of stated claims which may greatly prejudice the defense of such claims, as in Insurance Company of North America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971). If the defendant is not promptly notified that an action has been commenced against him or her, this purpose of the statute of limitations cannot be fulfilled, as in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).

You Can't Do Nothing

The Pennsylvania Supreme Court has clarified the relevant legal principles regarding perfection of service of original process over several notable decisions. In Lamp v. Heyman, the Supreme Court held that service of original process completes the process of tolling the statute of limitations. The Supreme Court in Lamp reasoned that there was "too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service."
Accordingly, the Lamp court held that "a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion."

You Must Try Something

The Pennsylvania Supreme Court revisited its holding in Lamp in the case of Farinacci v. Beaver County Industrial Development Authority, 511 A.2d 757 (1986). The Lamp holding was extended in Farinacci to require that plaintiffs not only refrain from stalling litigation that was commenced, but to also demonstrate a "good-faith effort to effectuate notice of commencement of the action."

After these decisions by the Pennsylvania Supreme Court in Lamp and Farinacci, the Superior Court and the Commonwealth Court split on the issue of what constituted a good faith effort to complete service. After this split of authority arose, the Supreme Court clarified the good faith requirement in its more recent decision in the case of McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).

The Supreme Court in McCreesh clarified the Lamp/Farinacci decisions in regards to timely service of original process in order to toll the statute of limitations. According to the Supreme Court in McCreesh, a case will not be dismissed under Lamp where:

There has been a good-faith effort to obtain service despite technical noncompliance with the Rules of Civil Procedure, and the defendant has received actual notice of the original process,

Further Clarification of the Rules on Service

After McCreesh, the Superior Court of Pennsylvania further clarified the good faith/actual notice requirement outlined by the Pennsylvania Supreme Court's decisions in Lamp, Farinacci and McCreesh. In Englert v. Fazio Mechanical Services, 932 A.2d 122 (Pa. Super. 2007) the Superior Court held that it is the plaintiff's burden to prove that the actions taken to complete service were reasonable. In so ruling, the Englert court held that even acts that are unintentional that work to delay a defendant's notice of the action may constitute a lack of good faith on the part of the plaintiff with respect to service of process, as in Englert, 932 A.2d at 124 citing Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).

The plaintiffs in Englert were injured in an auto accident and filed a writ of summons well before the statute of limitations was set to expire. The plaintiffs in Englert sent the writ of summons to the sheriff for service. However, the sheriff's office was unable to complete service of the writ because the defendant had moved. Even though the plaintiff had the resources to check on the status of service, plaintiff's counsel did not learn that the Writ was not served until after the statute of limitations expired. The defendant in Englert filed preliminary objections to the complaint because of the lack of service of original process.

According to the Superior Court in Englert, "it is not necessary that the plaintiff's conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply." The Superior Court in Englert reiterated that simple neglect and mistake to fulfill the responsibility to see that the requirements for service are carried out may suffice to bring the rule in Lamp to bear.

While the plaintiff's attorney may have been previously in communication with the defendant's insurance carrier and her insurance defense counsel, such conduct is not sufficient under Pennsylvania law to provide actual notice to the party defendant, Cynthia Zolner, of the formal commencement of the lawsuit as required by the Pennsylvania Rules of Civil Procedure and Pennsylvania law, as in Ferrara v. Hoover, 636 A.2d 1153, 1153 (Pa. Super. 1994).

In Ferrara v. Hoover, the Pennsylvania Superior Court held that notice to an insurance company or insurance company's lawyer of the filing of original process is insufficient to toll the statute of limitations when there has been no good faith effort on the part of the plaintiff to serve process on the actual party defendants. Specifically, the Ferrara court wrote, "We find no merit in the contention communication between plaintiff and defendants' insurance adjuster serves as a substitute for actual service of process."

The Ferrara court more specifically found that the providing of pleadings to a defendant's insurance adjuster does not act as a substitute for proper service of original process upon the proper party defendant. The court in Ferrara stated that, even assuming that notice of a lawsuit was provided to the defendant's insurance carrier, actual notice of a potential for litigation is not enough because the Rules of Civil Procedure and Pennsylvania law pertaining to proper service require that the party defendant must have actual notice of the commencement of the lawsuit.

As with a quarterback, a pitcher, a golfer or with a jump shot, the "follow through" may be the most important action taken by the athlete in each of their respective sports. The "follow-through" motion guides the direction of the ball and increases the athlete's chances for success. Similarly, "following through" with the tasks associated with completing original process guides the new legal action and ensures that the case will be allowed to proceed. The cases of Lamp v. Heyman and its progeny analyzed above remain a consistent reminder that an action can be dismissed if the "follow through" on service of process is instead neglected. •

Wednesday, October 25, 2017

Motion to Sever and Stay Post-Koken Bad Faith Claim Denied in Middle District of Pennsylvania

In his recent decision in the case of Newhouse v. GEICO, No. 4:17-CV-00477 (M.D. Pa. Sept. 18, 2017 Brann, J.), US Middle District Judge Matthew W. Brann denied GEICO’s Motion to Sever and Stay the bad faith portion of a post-Koken claim filed by a Plaintiff also asserting a UIM claim.  

The court declined to sever or bifurcate the UIM and bad faith claims after finding that the Plaintiff would utilize similar evidence and testimony for both claims.   The court also rejected the carrier’s argument that it would be prejudice by a lack of bifurcation because, relative to the bad faith action, the carrier will have to present information on how it values a claim before the jury assesses liability and damages in the UIM portion of the claim.   

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

Source:  Article “GEICO Can’t Halt Bad-Faith Claims in UIM Case, Court Says” By: PJ D’Annunizio.   The Legal Intelligencer (September 22, 2017).    

Summary Judgment Granted on Federal Middle District Homeowner's Bad Faith Claim

In what may be one of the first post-Rancosky decisions (but in which Rancosky was not cited), summary judgment was granted on a homeowner's insurance bad faith claim in the Federal Middle District Court case of Davenport v. USAA Casualty Ins. Co., No. 1:16-CV-2378 (M.D.Pa. Oct. 11, 2017 Jones, J.).

The court noted that, although there were disputes between the parties over the coverage benefits available under the policy, the homeowners had not presented any clear and convincing evidence of bad faith.  With respect to the property damage estimates generated by the carrier for the fire losses incurred, the court noted that the courts have not recognized bad faith where an insurer makes a low but reasonable estimate of the insured's losses.

Overall, the court found that the Plaintiffs had not provided clear and convincing evidence that USAA acted in bad faith in the adjustment of the claim.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Brigid Q. Alford of the Harrisburg, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Monday, October 23, 2017

Scope of Trial Court's Authority to Limit Openings, Examinations, and Closings at Trial Reviewed

In a recent decision in the case of Horst v. Union Carbide Corporation, No. 15-CV-1903 (C.P. Lacka. Co. Oct. 11, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the scope of a trial judge's authority to impose limitations upon the length and number of opening statements, closing arguments, and examinations of witnesses pursuant to Pa. R.C.P. 223 and 225.  

This asbestos action was proceeding under allegations that the Plaintiff allegedly developed malignant mesothelioma as a result of the Plaintiff’s alleged exposure to asbestos-containing products that were allegedly manufactured or sold by the Defendants while the Plaintiff was employed by his father’s heating, ventilation, air conditioning, and plumbing business.  

The court noted that it had issued this Order imposing limitations on the trial proceedings after counsel had initially represented to the court that the trial of this matter would last three (3) weeks after which the Defendants more recently revealed to the court that four (4) trial weeks or twenty (20) days, would be required to present the Defendants' case only.  

Accordingly, the court noted that, in order to ensure that the trial would be completed within the allotted time that was originally fixed based upon the initial representations of counsel, the court entered an Order imposing limitations upon the length and number of the opening statements, closing arguments, and examination of witnesses.   In this decision, the court denies the Motion for Reconsideration filed by eleven (11) of the twelve (12) Defendants in which the Defendants requested that all of eleven (11) participating Defendants be granted the opportunity through their respective counsel to present opening statements, closing arguments, and to examine all non-expert witnesses called by the Plaintiff.  

After reviewing Pennsylvania law in support of its decision and authority to limit certain aspects of trial proceedings, the trial court granted in part and denied in part the Motion for Reconsideration.   The Motion for Reconsideration was granted to the extent that the prior Order of Court was amended to provide that all Defendants shall be allotted and aggregated a period of 180 minutes within which to present and conclude all opening statements on behalf of Defendants as well as a same amount of time within which to complete closing arguments for all Defendants.   In all other respects, the Defendants’ Motion for Reconsideration was denied.  

Anyone wishing to read this Opinion may click this LINK.