Friday, May 19, 2017

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

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

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

Wednesday, May 17, 2017

Western District Magistrate Judge Addressess Facebook Discovery Issues

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

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

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

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

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

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

Anyone wishing to review this decision may click this LINK.

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

Monday, May 15, 2017

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Anyone wishing to read this decision may click this LINK.

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


Thursday, May 11, 2017

Pennsylvania Superior Court Revisits Sackett Stacking Issues

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

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

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

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

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

Judge Strassburger's Concurring Opinion can be viewed HERE.

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

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

Monday, May 8, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, May 5, 2017



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

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

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

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

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

Thursday, May 4, 2017


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

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

Wednesday, May 3, 2017

UIM Claims Found Barred by General Release Signed by Plaintiff

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

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

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

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

Anyone wishing to review this decision may click this LINK.

Tuesday, May 2, 2017

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

Insurance Law

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

Daniel E. Cummins, Pennsylvania Law Weekly

Publication Date:  April 25, 2017    

Dan Cummins

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

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

Open Issue

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

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

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

Effect of Policy Language Limited

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

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

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

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

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

"Section 69.11. Payment limitation applicability.

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

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

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

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

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

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

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

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

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


Monday, May 1, 2017

Notable Medical Malpractice Discovery Decision by Judge Terrence R. Nealon of Lackawanna County

In the recent Lackawanna County Court of Common Pleas decision in the case of Baker v. Geisinger Community Medical Center, No. 2016-CV-2946 (C.P. Lacka. Co. April 7, 2017 Nealon, J.), Judge Terrence R. Nealon addressed a Plaintiff’s Motion to Compel a hospital in a medical malpractice action to produce the “audit trail” for her electronic medical records from the date of the Plaintiff’s admission to the hospital up to the present.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that the audit trail documents every occasion that an electronic medical record is accessed, what specific information is reviewed, who entered or altered any information in the chart, what information was entered or later changed, who accessed, reviewed or added information to the chart, and when and where the activity occurred. 

The court noted that the Plaintiff produced deposition testimony reflecting disparities between the testimonial recollections of the healthcare providers and the entries contained in the hospital chart.   The court noted that the audit trail will reveal which healthcare providers reviewed what information, when they acquired that knowledge, where and when they made their respective entries, and whether those entries had ever been edited or altered.  

Judge Nealon noted that electronically stored information is discoverable if it is relevant and can be produced without undue cost, burden, or delay, and where substantially similar information is not available or readily accessible by less burdensome means. 

The court in Baker held that, since the audit trail is relevant to the claims at issue and may be secured and produced without significant cost or hardship, Plaintiff’s Motion to Compel was granted under the proportionality standard governing discovery requests for electronically stored information.  

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

Anyone wishing to read this decision by Judge Nealon in the Baker case may click HERE.