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

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 and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."  There are Links to all of the Facebook decisions noted on that Scorecard. 

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

Thursday, July 20, 2017

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

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

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

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

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

Wednesday, July 19, 2017

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

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

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

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

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

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



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.