Tuesday, December 11, 2018

PA Supreme Court Reaffirms Rule that Workers' Compensation Carrier May Not Directly Enforce Its Subrogation Rights Against Tortfeasor

In the case of Hartford Ins. Grp. v. Kamara, No. 24 EAP 2017 (Nov. 21, 2018) (Op. by Baer, J.), the Pennsylvania Supreme Court addressed the issue of whether a workers’ compensation carrier could bring a third-party action against an alleged tortfeasor on behalf of an injured employee in order to recover the amount of money paid out in workers’ compensation benefits where that injured employee did not independently sue the tortfeasor, did not join in the carrier’s action, and did not assign her cause of action to the carrier.  

This matter arose out of an incident during which the Plaintiff was struck as a pedestrian while the Plaintiff was in the scope and course of her employment.   The Plaintiff had recovered workers’ compensation benefits through the Hartford Insurance Group.

When the Plaintiff herself did not seek to recover damages against the third party tortfeasors, the workers’ compensation carrier sought to recover on its subrogation rights under the workers’ compensation act by filing a suit against the tortfeasors.  

After this case worked its way up to the appellate ladder, the Pennsylvania Supreme Court in this case reaffirmed the “well-settled proposition that the right of action against the tortfeasor remains in the injured employee.”   The Pennsylvania Supreme Court ruled that, unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party Plaintiff, the workers’ compensation carrier may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor.  

As such, the Supreme Court of Pennsylvania vacated the Superior Court’s judgment and reinstated the decision of the trial court which had sustained the Preliminary Objections filed by the tortfeasor which serve to dismiss the carrier’s Complaint with prejudice.  

Anyone wishing to review the Majority Opinion by Justice Baer may click HERE.

The Dissenting Opinion by Chief Justice Saylor can be viewed HERE.

The Dissenting Opinion by Justice Todd can be viewed at this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, Pennsylvania law firm of Schmidt Kramer for bringing this case to my attention.

Monday, December 10, 2018

Raising Too Many Issues On Appeal Will Dilute a Good Case and Will Not Save a Bad One

In the case of Berks Counseling Center v. Community Care, No. 898 MDA 2017 (Pa. Super. Nov. 7, 2018 Panella, J., Olson, J., Stevens, P.J.E.) (Op. by Panella, J.)(Non-Precedential), the court chastised the appellant for “throwing in every conceivable point” in its appellate’s filings.  This case arose out of a dispute by the Plaintiff with one of its contractors.  

This case again provides the lesson that the appellate court frowns upon appeals containing many issues.   Here, the appellant raised eight (8) issues on appeal.

Judge Panella noted that the appellate court judges’ receptiveness of issues raised on appeal “declines as the number of assigned errors increases.”  

Judge Panella additionally noted in his opinion that “experience on the bench convinces [him] that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.”   It was additionally noted that throwing in every possible point on appeal is distracting to judges and gives support to a presumption that none of the arguments raised has any merit whatsoever.  

Ultimately, the Superior Court ruled in favor of Berks Counseling Center and held that none of the issues raised on appeal by Community Care merited any relief.  

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

Source:  Article by PJ D’Annunzio entitled “Court Chastising Appellant for ‘Throwing In Every Conceivable Point,’”  Pennsylvania Law Weekly (Nov. 13, 2018).  

Commentary:  The Superior Court cautions in this Opinion that multiplicity of claims on appeal hints a lack of confidence in any one of the claims.  How ironic that the Court would issue this Opinion as a "Non-Precedential" Opinion as a listing of an Opinion as "Non-Precedential," as opposed to a published Opinion of precedence, also hints that perhaps the Court is not as confident in its Opinion.

It is respectfully submitted that, in this day and age of digital publication, the time has come for the Superior Court to publish all of its Opinions.  A concern that the publication of too many Opinions will fill too many books is not as strong of a concern anymore as the use of books is (unfortunately) becoming a thing of the past.  

Here's to hoping that the Superior Court changes its internal rules and opts to publish all of its Opinions so that the bench and bar may have more and more excellent appellate guidance on a wide variety of issues for the benefit of all.

What do you think?

Friday, December 7, 2018

Judge Julia K. Munley of Lackawanna County Applies Recent Supreme Court Decision Regarding Governmental Immunity

In her recent decision in the case of Sands v. Hamilton, No. 2013-CV-55 (C.P. Lacka. Co. Nov. 5, 2018 Munley, J.), Judge Julia K. Munley of the Lackawanna County Court of Common Pleas addressed a Defendant municipal bus company’s Motions In Limine seeking to preclude evidence and testimony related to negligent supervision, negligent training, and negligent retention of the bus driver.  The defense was asserting that such evidence was irrelevant given that such evidence did not relate to the central issue of whether the “operation” of the motor vehicle at issue fell under an exception to the governmental immunity provided under42 Pa. C.S.A. §8542(b)(1).  

The defense also sought to preclude evidence of the bus driver’s non-compliance with internal policies and procedures on the same grounds.  

In this matter, the Plaintiff alleged that he was injured when the bus driver took a turn too fast, causing the Plaintiff's motor scooter to tip over while the Plaintiff was sitting on it.

In her decision, Judge Munley pointed to the recent Supreme Court decision in the case of Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018) (Click HERE for the Tort Talk Posts on that case, including a Link to that case) in which the Pennsylvania Supreme Court held that “operation” in this context refers to a continuum of activity as well as the decision-making processes that are attendant to moving a vehicle.  

Judge Munley also noted that the term “operation” also encompasses negligent acts related to the operation of a vehicle, including even whether a driver should be driving a particular vehicle in the first place.

As such, the court ruled that the Plaintiff was not automatically barred by governmental immunity considerations from presenting evidence at trial of policies and procedures along with other evidence in support of claims of negligent supervision, training, and retention so long as that evidence is relevant and related to the operation of the bus.  

As such, the defense Motion In Limine was denied and the court ordered that the evidence at issue would be permitted at trial. 

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

Superior Court Gives Lessons on Preserving Objections to Verdict Slip at Trial (Non-Precedential)

Preserve Your Objections

In the slip and fall case of Showers v. Sam’s East, No. 810 EDA 2018 (Pa. Super. Nov. 6,2018 Olson, J., Panella, J., and McLaughlin, J.) (Op. by Olson, J.)(Non-Precedential), the Pennsylvania Superior Court affirmed a Chester County jury’s $7,481.00 verdict in favor of the Plaintiff in a case where the Plaintiff alleged injuries as a result of a slip and fall on water in a Sam’s Club store.

The Plaintiff asserted that they were entitled to a new trial because the jury only awarded the medical expenses claimed and failed to award damages for pain and suffering. 

The Superior Court rejected this argument and agreed with the trial court that the Plaintiffs had failed to object at trial to the finalized verdict sheet, which did not require the jury to require a breakdown of the damages awarded.   

The court rejected the Plaintiff's argument that they had preserved their appellate issues by submitting a proposed Verdict Slip and had argued for the same at a Charging Conference with the Court.  However, the Superior Court noted that the Charging Conference was not transcribed.

The Superior Court also noted that, after the trial court instructed the jury, the trial court asked the parties if there were any issues with the instructions and the appellants "acquiesced" and did not raise any objections.  See Op. at p. 5.

The Superior Court also rejected the Plaintiffs’ argument that the jury’s verdict neglected to address the pain and suffering claims.   The Plaintiffs asserted that the $7,481.00 figure represented the amount of medical expenses damages that the Plaintiffs had offered evidence of at the trial.    

The Superior Court noted that the trial court had instructed the jury on all of the available elements of damages.  The appellate court agreed with the trial court's assessment that there was nothing in the record to suggest that the lump sum award was only for medical expenses and that the jury could have possibly used the medical expenses evidence amount as a "guidepost."  See Op. at p. 7.

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

Source:  Article by Zack Needles entitled “Court: Jury Did Not Neglect Pain, Suffering in Lump-Sum Verdict,”  Pennsylvania Law Weekly (Nov. 13, 2018).  

Commentary:  This decision goes to show that litigants should do everything necessary to preserve issues for appeal because both the trial court judge and the appellate court judges will, in almost every instance, first look to see if the issue raised has been preserved on the record.  

Therefore, don't feel sheepish asking for a court reporter at all stages of the trial or when placing objections on the record.  It is your job and duty to make these requests and objections. If the trial court judge gives you a hard time or an exasperated sigh, take a quick breath and politely stand your ground and make the request for a court reporter and/or state your objection clearly (and repeat it every time the issue comes up).  

Also, at the end of the trial and the end of the jury instructions when the trial court judge asks if any parties have any objections ask for a sidebar to state any new objections you may have.  If you do not have any objections, say, "Your Honor, I have no more objections other than the ones I have previously stated on the record and which I maintain at this time.  Thank you."

Remember, your client is counting on you as his or her spokesperson in the court of law.  Don't let him or her down. 

Thursday, December 6, 2018

TRENDING: Judge Legg of Susquehanna County Rules Extraneous Insurance Information Inadmissible in a Post-Koken Trial

As recently promised, here is the Tort Talk blog post on the Susquehanna County Court of Common Pleas decision in the Phillips case on the admission of evidence of insurance issues in a Post-Koken matter.

In the case of Phillips v. National General Assurance Company, No. 2016-959 (C.P. Susq. Co. Nov. 16, 2018 Legg, P.J.), President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas granted a UIM carrier’s Motion In Limine to exclude extraneous evidence relating to insurance.  

In this detailed Order, the court additionally directed the parties to prepare Proposed Jury Instructions explaining the nature of the litigation to the jury that avoids referencing the extent of the coverage limits.   In this regard, the judge cited with the signal “c.f.” (which is a "compare" signal) Judge Terrence R. Nealon’s decision in the case of Kujawski v. Fogmeg, 2015 WL 1726534 (C.P. Lacka. Co. 2015) (providing a jury instructions explaining the nature of UIM coverage and the insurance company’s potential liability).  

In rendering his decision, President Judge Legg, noting that there was no Pennsylvania state appellate court decisions on the issue of admissibility of insurance evidence at Post-Koken trials. 

The Judge pointed to recent Pennsylvania federal court decisions and, after a review of those cases, found that “there is very little, if any, probative value to the extraneous insurance contract evidence” in the Phillips case before him where there was no dispute regarding the existence of an insurance contract between the parties or the obligation of the carrier to provide UIM benefits, both of which issues had been conceded by the carrier.  

Accordingly, Judge Legg agreed with the reasoning that the extent of the coverage limits has no probative value as to the damages suffered by the Plaintiffs and the prejudice to the Defendant will be substantial as [such evidence would] provide the jury with an “anchor number” that may unduly influence the damage award.   In this regard, the court cited, among other decisions, the following:

Lucca v. GEICO Insurance Company, 2016 WL 3632717 (E.D. Pa. 2016).  The Order in Lucca can be viewed at this LINK and the Opinion at this LINK.
Schmerling v. LM General Insurance Company, Inc., 2018 WL 5848981 (E.D. Pa. Nov. 8, 2018).  The Order in Schmerling can be viewed HERE and the Opinion at this LINK.
Ridolfi v. State Farm Mutual Automobile Insurance Company, 2017 WL 3198062 (M.D. Pa. 2017 Mag. J.) (Excluding evidence of premium payments in breach of contract action between insured and insurer).  The Opinion by the Federal Magistrate Judge can be viewed at this LINK.
Anyone wishing to review a copy of the Phillips Order issued by President Judge Legg of the Susquehanna County Court of Common Pleas may click this LINK.

I send thanks to Attorney Gerald Connor of the Scranton, Pennsylvania office of Margolis Edelstein for bringing this decision to my attention.  

Pennsylvania Supreme Court Provides Lesson on Preserving Objections Relative to Jury's Verdict

In the case of Stapas v. Giant Eagle, No. 44 WAP 2017 (Pa. Nov. 21, 2018) (Op. by Mundy, J.), the court considered whether the Defendant was required to object to the jury’s verdict prior to the time the jury was discharged in order to preserve its challenge to the verdict.  

In the end, the Court ruled that the defense had waived its objection by failing to lodge an appropriate objection to the jury's alleged improper inclusion of future lost wages in the verdict when no evidence had been presented at trial in support of such a claim.  As such, a $2.1 million dollar verdict in favor of the Plaintiff who had been injured as a result of a shooting on the Defendant's premises.

The Defendant had labeled its challenge as a claim that the verdict was against the weight of the evidence in its Post-Trial Motion.  The Court noted that this type of claim does not ripen until after the verdict and is based upon a challenge to a jury's consideration of competing evidence (here there was no evidence presented in favor of a future wage loss claim).

The Pennsylvania Supreme Court ruled in this case that, where an objection to a jury’s verdict is premised upon trial errors which are capable of being corrected before the jury is discharged, those objections must be raised before that jury is discharged. 

Accordingly, the Supreme Court reversed the Superior Court’s Order awarding the Defendant a new trial on damages.  

Anyone wishing to review the Majority Opinion by Justice Mundy may click this LINK.  The Dissenting Opinion by Justice Dougherty can be viewed HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Wednesday, December 5, 2018

Federal Middle District Court Gives Lessons On Proper Bad Faith Complaint Drafting

In the case of Rickelle v. USAA Cas. Ins. Co., No. 18-CV-1279 (M.D. Pa. Nov. 6, 2018 Rambo, J.), the court reviewed the method which federal district courts utilize to determine whether a pleading is adequate under the federal rules.  Applying these rules the Court held that an insured failed to adequately plead a bad faith claim in this UIM case. However, the Plaintiff was granted leave to amend the Complaint.  

The court found that most of the allegations in the original Complaint were conclusory in nature.  

While the court recognized the difficulty in pleading facts of a carrier’s allegedly deficient internal processes, the court still ruled that an insured had to plead some facts in support of the claims presented or the Complaint could not survive under the federal court pleading rules.  

The court additionally held that pleading a few month’s delay by the carrier, in and of itself, is not sufficient to support a bad faith in the absence of any more details to fill out the allegations to show that the nature of the claims handling was allegedly unreasonable.  

In the end, the court found that the Plaintiff’s factual allegations amounted to no more than assertions that the carrier failed to communicate or issue its benefits within three (3) months of the Plaintiffs having provided medical documentation and a written request for such benefits.   The Plaintiffs failed to plead any specific facts to suggest that this delay was unreasonable or dilatory.   

Accordingly, the court granted the Motion to Dismiss but, as stated, allowed the Plaintiff leave to amend.   

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

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

Friday, November 30, 2018

Motion To Remand Case Back to State Court Denied

In the case of Pisanchyn v. Progressive Direct Ins. Co., No. 3:18-CV-01215 (M.D. Pa. Aug. 2, 2018), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania addressed a Plaintiff’s Motion to Remand a case back to state court.

The Plaintiff asserted that a remand was required because the parties were not diverse and/or given that a forum selection clause in the insurance policy allegedly waived the Defendant’s right to remove the action to federal court in the first place.

The court held that, because diversity jurisdiction over the action existed and given that the Defendant did not waive its right to remove under the forum selection clause, the Plaintiff’s Motion to Remand would be denied.  

According to the Opinion, the UM/UIM policy in this matter included a provision with a forum selection clause requiring that any suit by the insured against the carrier be brought “in the county in which the person seeking benefits resides, or in the United States District Court serving that county.”  

The court initially rejected the lack of diversity argument.   The Plaintiff asserted that there was no diversity because his suit was a “direct action” against his carrier and, therefore, his carrier should be deemed to also be a citizen of Pennsylvania under §1332(c)(1).   

Judge Caputo noted that every Circuit that has considered  “direct action” argument, including the Third Circuit, has held that an action by an insured against his or her  own carrier is not a “direct action” within the meaning of §1332(c)(1).  

The Plaintiff also argued that the insurance company had waived the right to remove by virtue of the forum selection clause.  More specifically, the Plaintiff asserted that the carrier had agreed to “submit” to, and stay in, the forum chosen by the Plaintiff.  

With respect to the waiver argument, the court found that the policy language did not contain any agreement by the carrier to “submit” to any chosen court or to litigate there.

Anyone wishing to review this Opinion may click this LINK.  The companion Order can be viewed HERE.

Wednesday, November 28, 2018

Summary Judgment Granted in Federal Middle District Bad Faith Case

In the case of Brugler v. Unum Group & Provident Life & Accident Ins. Co., No. 4:15-cv-01031 (M.D. Pa. Nov. 2, 2018 Brann, J.), the Federal Middle District Court of Pennsylvania granted a carrier’s Motion for Summary Judgment in a bad faith action. 

According to the Opinion, the carrier in this matter stopped making payments under a disability policy on the basis of two (2) independent medical examinations and its interpretation that the results of those examinations placed the claim outside of the policy’s coverage. 

The insured responded by filing a Complaint stating various claims, including bad faith.

In his Opinion, Judge Brann found that the carrier had a reasonable basis to deny the claim.   In so ruling, he reasoned that carriers may “reasonably rely on the findings of an independent medical examination - even in the face of contrary medical opinions.”  

The court rejected the insured’s argument that the carrier unfairly favored its physician/expert opinion over the treating physicians’ opinion. Judge Brann noted that “an insurer is not required to give greater credence to opinions of treating medical providers.”  

The court additionally found that the record did not support any inference that there was any frivolous or unfounded refusal to pay the disability benefits.   The court found that the record instead revealed a thorough investigation by the carrier, including a review of relevant documentation and reports by medical experts, that all served to create a reasonable basis for the carrier’s denial.  

Judge Brann emphasized that “an insurer has a right to evaluate legitimate coverage issues and does not act in bad faith by aggressively protecting its interests.”  

The court additionally stated that merely suggesting a pre-determined intent on the part of the carrier to deny a claim is not sufficient to meet the high burden of actually establishing a bad faith claim under Pennsylvania law.  

The court noted that the Plaintiff’s allegations of claims handling issues that were alleged in this matter to discredit the carrier did not actually show improper claims handling or show that the carrier’s alleged methods went beyond mere alleged negligence, which allegations did not constitute conduct amounting to bad faith.

As such, the summary judgment motion filed by the carrier was granted.

Anyone wishing to review a copy of his decision may click this LINK.  The companion Order can be viewed HERE.

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

Tuesday, November 27, 2018

TRENDING: Evidence of UIM Limits and the Amount of the Third Party Settlement Ruled Inadmissible At Post-Koken Trial by Eastern Federal District Court of PA

In the Post-Koken case of Schmerling v. LM General Ins. Co., No. 17-3659 (E.D. Pa. Nov. 8, 2018 DuBois, J.), Judge Jan E. Dubois of the Eastern District Federal Court of Pennsylvania the court addressed the carrier's motion regarding the manner in which this UIM case was to be presented to the jury.

The court ruled that the Plaintiff was prohibited from presenting evidence on the UIM benefits coverage as well as evidence on the settlement negotiations with the underlying tortfeasor defendant and the settlement agreement with the tortfeasor defendant.

After reviewing conflicting Pennsylvania Federal Court decisions on the issue, the Schmerling court entered these rulings under an application of general principles of relevance.  The court noted that the evidence was irrelevant to the jury's determination of the Plaintiff's alleged damages, and that any probative value of such evidence was substantially outweighed by the danger of unfair prejudice to the Defendant. 

In terms of the unfair prejudice of this information, the court noted that the evidence of the amount of the UIM limits, could supply the jury with an "anchor number" that does not reflect the Plaintiff's actual damages. 

The court ruled with similar reasoning in excluding evidence of the Plaintiff's settlement negotiations and settlement agreement with the tortfeasor as irrelevant to the jury's proper assessment of damages and unfairly prejudicial to the defense.

The Schmerling  Court's Order can be viewed HERE.  The Opinion by the Court can be viewed at this LINK.

This recent Schmerling decision has already been cited in a similar ruling by President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas on November 19, 2019 in the case of Phillips v. Nat'l Gen'l Assur. Co. which case was brought to my attention by Attorney Gerald Connor of the Scranton, PA office of Margolis Edelstein.

A Tort Talk post on the Phillips case is forthcoming.......

Monday, November 26, 2018

Summary Judgment Granted on Medical Malpractice Vicarious Liability/Ostensible Agency Claims

In the case of Mills v. Green, No. 2011-CV-5496 (C.P. Lacka. Co. Nov. 9, 2018 Nealon, J.), the court addressed the issues of vicarious liability and ostensible agency relationships in a medical malpractice claim.  

According to the Opinion, the Plaintiff in this case filed a medical malpractice action alleging negligence by a gynecologist in connection with surgery.   The only claim in this matter against the Co-Defendant hospital was premised on its vicarious liability for the actions of the gynecologist who was allegedly acting as an ostensible agent of the hospital.  

This decision arose out of the Defendant hospital filing a Motion for Summary Judgment on the grounds that the Plaintiff was unable to produce sufficient evidence to establish an ostensible agency relationship between the gynecologist and the hospital.  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon reviewed the pertinent law and noted that, to impose vicarious liability upon a hospital based upon ostensible agency allegations, a Plaintiff must show that either (1) a reasonably prudent patient would have been justified in believing that the surgery was being performed by the hospital or its agent, or (2) the surgery was advertised or represented to the Plaintiff as being rendered by the hospital or its agent.   

The court reviewed the record before it, which indicated that most of the Plaintiff’s contact was with the gynecologist and/or the gynecologist’s office, as opposed to the hospital.

Accordingly, Judge Nealon ruled that, even when the record is examined in the light most favorable to the Plaintiff as required by the motion for summary judgment standard of review, the record was devoid of evidence sufficient to sustain a finding that a reasonably prudent patient would have been justified in believing that the surgery was being performed by the hospital or its agent.   The records also found to lack any evidence that the hospital advertised or otherwise represented the surgery as being rendered by the hospital or its agent.  

As there were no genuine issues of material fact regarding Plaintiff’s ostensible agency claim to be decided by a jury with regard to the Plaintiff’s ostensible agency claim, the hospital’s Motion for Summary Judgment was granted.  

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

Discovery Rule Related to Statute of Limitations Reviewed

The discovery rule pertinent to the statute of limitations was reviewed in the case of Vidra v. Hertz Corp., No. 18-2939 (E.D. Pa. Oct. 4, 2018 Beetlestone, J.)(mem.op.).  

This case arose out of a motor vehicle accident that occurred in 2012.  The Plaintiff, who was pro se, asserted that he had rented a Camaro from Hertz and that, due to a defect in the vehicle, the rental vehicle suddenly accelerated outside of his control and was involved in an accident. 

Two people in the other vehicle involved in the accident died in the accident  The Plaintiff was convicted of homicide by vehicle and sentenced to 22 years in prison. 

The Plaintiff continued to assert a defect with the vehicle and alleged that Hertz did not cooperate in his efforts to uncover the defect.

The Defendants removed the Plaintiff's state court Complaint to federal court and filed a motion to dismiss.

In this matter, the court ruled that it was apparent on the face of the Plaintiff’s Complaint that the statute of limitations had run.   The Plaintiff pled in his Complaint that he had complained about a product defect to the police at the time of the accident, but waited more than six (6) years to file a lawsuit.

The court noted that traumatic injuries from a motor vehicle accident are immediately apparent, triggering a Plaintiff’s inquiry notice, such that the statute of limitations begins to run immediately.   The court stated that, as automobile accidents are specific events, a burden is placed upon the injured party to determine whether the other parties involved in the accident might be liable for any potential injuries.

The court found that an argument of fraudulent concealment did not apply in this matter because, even if the Defendants had refused to respond to the Plaintiff’s inquiries, the Defendants did nothing to cause the Plaintiff to relax his vigilance in determining the cause of his injuries.   

The court additionally noted that silence cannot be considered to be fraud unless there is an affirmative duty to disclose due to a fiduciary or similar relationship between the parties.   In this regard, the court stated that product sellers do not have a special relationship with product consumers in this context.  

Anyone wishing to review of a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

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

Wednesday, November 21, 2018

Happy Thanksgiving

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

Tuesday, November 20, 2018

Duties of Mental Health Professionals to Protect Others in a School Setting

In the case of Swanger v. Warrior Run School District, No. 4:11-CV-894 (M.D. Pa. Oct. 2, 2018 Mariani, J.), the court addressed the duty of parties to control the conduct of third party to protect others from harm.  The case arose out of alleged inappropriate touching between two mentally challenged students in a school setting.

Judge Mariani stated that, as a general matter of law, persons have no duty to control the conduct of third parties to protect another from harm.  An exception exists for mental health professionals who know, or should know, that a patient poses an immediate threat of serious harm to a specific intended victim.   The court otherwise noted that the law does not impose any generalized duty upon mental health professionals to warn unspecified classes of person with whom patients might interact.  

In this matter, the court found that the Plaintiff did not have a claim against the Defendant mental health providers because the patient at issue made no reference during his treatment to the Plaintiffs as a specifically identified potential victim.  

As such, summary judgment was granted in part and denied in part in this matter. 

Anyone wishing to review of a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

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

Foreign Corporation's Registration to do Business in PA Supports Personal Jurisdiction Over Corporation

In the case of Murray v. American LaFrance, 2018 Pa. Super. 267 (Pa. Super. Sept. 25, 2018), the Pennsylvania Superior Court addressed issues of personal jurisdiction over a foreign corporation. 

According to the Opinion, the foreign corporation Defendant had registered in Pennsylvania as a foreign corporation under 42 Pa. C.S.A. §5301(a)(2).   Although the foreign corporation had registered to do business in Pennsylvania, it had a principal place of business in another state and no corporate offices in Pennsylvania.  

It was additionally noted that the foreign corporation did not own or lease any real property in Pennsylvania, had no bank accounts in Pennsylvania, and did not design or manufacture any of its products in Pennsylvania.   However, the court ruled that the fact that the foreign corporation had registered to do business in Pennsylvania under 42 Pa. C.S.A. §5301(a)(2) amounted to a consent by that foreign corporation to personal jurisdiction within the Commonwealth of Pennsylvania.  

As such, the Superior Court vacated the lower court’s Order sustaining the foreign corporation’s Preliminary Objections to the Complaint.

Anyone wishing to review a copy of the Majority Opinion in this case may click this LINK.  Judge Bowes' Dissenting Opinion can be viewed HERE.

Source “Court Summaries” by Timothy L. Clawges in the Pennsylvania Bar News (Oct. 22, 2018).  

Monday, November 19, 2018

Movement to Secure CLE/CJE Credits for Mock Trial Participation by Attorneys Takes a Major Step Forward

Happy to report that both the Board of Governors and the House of Delegates of the Pennsylvania Bar Association have adopted a Report and Recommendation I helped to write along with Jonathan Koltash, Esq., and Jennifer Menichini, Esq. with regards to a request to the Pennsylvania Supreme Court to issue a new rule allowing attorneys to earn up to 2 CLE credits a year, and judges up to 2 CJE credits a year, for their participation in the annual Mock Trial Competition. 

With this adoption of the Report and Recommendation, it is now the official position of the Pennsylvania Bar Association to submit a request - on behalf of all Pennsylvania lawyers - that the Pennsylvania Supreme Court change the Rules of Continuing Education to allow for two CLE and two CJE credits for mock trial participation. 

It is quite an accomplishment to get this far.  We now wait and see if the Pennsylvania Supreme Court will grant this request.

The overriding hope is that, if this is granted, more attorneys will assist with helping out the Mock Trial program as Attorney Advisors or Jurors if they know that they are going to get credits for it.  In the end, high school students from all across the Commonwealth of Pennsylvania will benefit from this greater participation by local members of the bar.
I will keep you advised.

Friday, November 16, 2018



As hard as it may be at times, it may be beneficial to your time management to limit your time on your email at the office.  Everyone likes to receive and read email -- it makes you feel needed, wanted, and it is interesting to see what's coming in.

But reading and responding to email can take up a lot of time.

Some recommend, as best as you can, to limit your email reading and responding to a set time in the morning, and another set time in the latter part of your afternoon. 

One way to stay away from your email in order to do other work is to do just that --- set up another work station away from your desktop computer and phone.  You may find that you will get a lot of your other work done this way.

Thursday, November 15, 2018

Motion to Sever Negligence and UIM Claims Denied in a Philadelphia County Post-Koken Case

In the Philadelphia County Court of Common Pleas case of Leone v. Ellingberg and Allstate, No. 180802705 (C.P. Phila. Co. Nov. 5, 2018 Younge, J.), the court denied the carrier’s Motion to Sever the Plaintiff’s negligence claims from the UIM claim breach of contract claims by Order only.
Please email me at dancummins@comcast.net if you would like me to email you a copy of this Order.

 There continues to be a split of authority in the Philadelphia County Court of Common Pleas.  Check out the Post-Koken Scorecard on the Tort Talk Blog down on the right hand column of the blog at www.TortTalk.com.

I send thanks to Attorney Clancy Boylan of the Philadelphia law firm of Morgan & Morgan for bringing this case to my attention.  

Propriety of New Matter Pleading Addressed By Judge Zulick of Monroe County

The propriety of pleadings in a New Matter contained in an Answer and New Matter to a Complaint were addressed by Judge Arthur K. Zulick of the Monroe County Court of Common Pleas in the case of Higgins v. Jimenez, No. 429 CV 2016 (C.P. Monroe Co. Aug. 24, 2018 Zulick, J.).  

This matter arose out of a motor vehicle accident.  

In response to the Complaint, the Defendant filed an Answer and New Matter in which he denied liability and asserted affirmative defenses.  In the New Matter, the Defendant generally alleged that the claims in the Plaintiff’s Complaint were barred or limited by accord and satisfaction, release, res judicata, collateral estoppel, arbitration and award, latches, and “any other affirmative defenses set forth in Pa.R.C.P. 1030(a).”  

The Plaintiff filed Preliminary Objections asserting that this boilerplate language contained in the New Matter was insufficient under the fact-pleading requirements of the Pennsylvania Rules of Civil Procedure.  

In the Brief in Opposition, the defense argued that, under the Rules of Civil Procedure, the Plaintiff was not even required to respond to the affirmative defenses contained in the new matter when they only contain conclusions of law as, under the Rules, such affirmative defenses would be deemed denied.  

The Defendant also asserted that, although a Plaintiff may have a long time to prepare a Complaint, a Defendant’s pleading in response to the Complaint had to be filed within only twenty (20) days of service of the Complaint.   As such, the defense argued that this short period of time did not provide the defense with time to investigate all potential affirmative defenses or gather facts in support of the same.

In this regard, it was additionally noted that a failure to raise affirmative defenses could result in a waiver of such defenses under the Rules.   For these reasons, the defense asserted that there conclusory defenses set forth in the New Matter should not be deemed to be objectionable at this stage of the litigation.

Judge Arthur K. Zulick
Monroe County
Judge Zulick agreed that the better approach was to allow for the raising of affirmative defenses as conclusions of law without the need for specific facts to support them at the time of the filing of the New Matter. 

The court went on to state that, at a later point in the proceedings, any affirmative defenses that remain without adequate factual support could be dismissed by way of a pre-trial motions.  

As such, the court allowed the specific affirmative defenses identified by the defense, but it granted the Plaintiff’s Motion to Strike the Catchall Allegation of “and any other affirmative defenses set forth in Pa.R.C.P. 1030(a) as that particular allegation was too vague. 

In his opinion, Judge Zulick emphasized that the court expected counsel to raise affirmative defenses in good faith and with a reasonable anticipation that they were, or could be, supported by facts.    The court noted that baseless pleadings could be subject to sanction by the court and attorney’s fees under 42 Pa. C.S.A. §2503(7).  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Wednesday, November 14, 2018

Check Out the New Search Tools on the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog

Attorney Lee Applebaum, the creator and writer of the EXCELLENT Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog has put up a blog post outlining different search options for that blog to make it easier for readers to search through the content on that blog.

Here is a LINK to that blog post -- I encourage you to check it out and to keep his blog in mind should you ever need to kickstart your research on an insurance bad faith issue, whether it be for an auto insurance, homeowner's insurance, commercial insurance, disability insurance issue or any other type of insurance.

Judge James M. Munley of Federal Middle District Court Rules on Statute of Limitations for UIM Case

In a case in which he addressed the applicable statute of limitations for an underinsured (UIM) motorists claim, Judge James M. Munley of the Federal Middle District Court of Pennsylvania denied the carrier’s Motion for Summary Judgment in the case of Legos v. Travelers Cas. Ins. Co., No. 3:16-CV-1917 (M.D. Pa. Oct. 11, 2018 Munley, J.).

Notably, the court held that the statute of limitations for a UIM is four (4) years from the date of the breach of the contract and not the date of the third party settlement.  

According to the Opinion, the third party case in this matter settled back in March of 2012.   

Over four (4) years later, Travelers sent correspondence to its insured indicating that it believed that the statute of limitations on the UIM claim had expired and that it was, therefore, closing its file.  

The insured nevertheless filed a breach of contract Complaint.   Travelers eventually responded with a Motion for Summary Judgment asserting that the four (4) years statute of limitations had expired once four (4) years from the March of 2012 settlement of the case had run.  

The Plaintiff countered with the Pennsylvania Supreme Court case of Erie Ins. Exch. v. Bristol, 174 A.3d 578 (Pa. 2017), and asserted that the four (4) year statute of limitations actually commenced in 2016 when the carrier indicated that it was closing its file as that would have been the date of the alleged breach of contract.  

Travelers responded by asserting that the Bristol case only applied to uninsured (UM) motorists claims.  Judge Munley disagreed and held that the Bristol case applied to both UM and UIM cases.  

In a footnote, Judge Munley acknowledged the Third Circuit's 2007 prediction in 
State Farm Mut. Auto. Ins. Co. v. Rosenthal, 484 F.3d 251, 253 (3rd Cir. 2007)that the Pennsylvania Supreme Court would hold that the limitations period on a UIM claim begins to run when the insured party settles with an adverse party for less than the value of the insured's damages. However, Judge Munley ruled that the 2017 Pennsylvania Supreme Court decision in Erie Ins. Exch. v. Bristol, 151 A.3d 1161 (Pa. Super. Ct. 2016), rev'd, 174 A.3d 578 (Pa. 2017) served to clarify state law in the manner held by Judge Munley in this Legos case.

As such, the court found that the UIM breach of contract claim in this matter was not barred by the statute of limitations.   Consequently, the carrier’s Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this case may click this LINK. The Court's companion Order can be viewed HERE.

I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer P.C. for bringing this case to my attention.  

Commentary:  One troubling aspect of this decision for carriers is that Plaintiffs attorneys are already arguing that this decision basically eradicates any statute of limitations for a UIM claims.  The argument is that, under this decision, the statute of limitation never begins to run until the Plaintiff advises the carrier of a desire to pursue a UIM claim and the carrier denies the claim or indicates it is not going to pay the Plaintiff's initial demand.

Does such an argument further the goal of the statute of limitations to prevent the pursuit of overly stale claims?  Does that seem like a correct application of the statute of limitations to you?  What do you think?

Tuesday, November 13, 2018

Low Offer Possibly Not Supported by the Record - Bad Faith Claim Allowed to Proceed

A bad faith homeowner’s insurance claim was allowed to proceed into discovery after the carrier’s Motion to Dismiss the Plaintiff’s federal court Complaint was denied in the case of Meiser v. State Farm Fire & Cas. Co., No. 3:17-2366 (M.D. Pa. Sept. 28, 2018 Mannion, J.).  

According to the Opinion, the case arose out of an incident during which a truck crashed into the insured’s home.

The insured’s own carrier evaluated the damage as being less than $2,500.00, which came to less than $600.00 after deductibles.  

The court noted that the tortfeasor’s carrier had evaluated the damages to the house at $60,000.00, based upon a finding a structural damage. Also, the Plaintiff’s public adjuster and another entity evaluated the damages at approximately $40,000.00.   The Plaintiff’s carrier allegedly did not revise its evaluation even after being provided these other estimates.

The insured brought a lawsuit against his own carrier for breach of contract and bad faith.   The issue came before the court on the Defendant’s Motion to Dismiss the bad faith claim.  

Judge Malachy E. Mannion
M.D. Pa.
In his Opinion, Judge Mannion provided a nice overview of the elements of a statutory bad faith claim and noted the demanding standard of clear and convincing evidence required in such cases.  

The Defendant carrier asserted that it was willing to pay the claim but that there was only a disagreement with the insured as to the amount offered.  The carrier asserted that this did not constitute bad faith and relied upon the principle of law that low but reasonable offers cannot be deemed to be bad faith as a matter of law.  

The carrier additionally argued that the Plaintiff’s Complaint only contained conclusory allegations of bad faith and should be dismissed on that basis as well.  

The court denied the Motion to Dismiss after finding that the Plaintiff had pled sufficient facts to support the bad faith claim.   The court also disagreed with the characterization of the pleadings as merely indicating that the carrier’s estimate was low but reasonable.   

Rather, based upon the court’s review of the Complaint, it appeared that the Plaintiff was asserting that there was an extreme disparity between the carrier’s estimate and the other estimates which may suggest something more than mere negligence.  

The court also noted that the motion was being dismissed as several of the issues raised required further discovery to address the same, including with respect to the Plaintiff’s bad faith allegations that the carrier was unreasonable in failing to re-investigate and re-evaluate the damages asserted in light of the new information generated in the claim.  

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

I send thanks to Attorney Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for highlighting this case on his blog, which can be viewed HERE.

Low Offer Supported by Record - No Bad Faith

In his recent decision in the case of Newhouse v. GEICO, No. 4:17-cv-00477 (M.D. Pa. Oct. 12, 2018 Brann, J.), Judge Matthew W. Brann granted the carrier’s Motion for Partial Summary Judgment on a bad faith claim asserted in a post-Koken UIM matter.  

According to the Opinion, the Plaintiff was allegedly injured as a result of a rear-end accident caused by an intoxicated driver.  After recovering the $15,000.00 policy limit from the tortfeasor’s carrier, the Plaintiff submitted a claim for UIM coverage for his own carrier.    Although the Plaintiff was seeking to recover the $200,000.00 UIM policy limits, GEICO had offered $10,000.00 based upon the case presented.  

The Plaintiff thereafter filed a Complaint in Clinton County for breach of contract, bad faith, and loss of consortium.   The carrier removed the case to federal court.  The issue of the validity of the Plaintiff’s bad faith claim eventually came before the court by way of a Motion for Summary Judgment.

Judge Matthew W. Brann
M.D. Pa.
In his Opinion, Judge Brann reviewed the current status of Pennsylvania bad faith law as applied against the record before the court.  

In granting the Motion for Partial Summary Judgment on the bad faith claims, the court noted that two (2) doctors, including the Plaintiff’s own medical expert, believed that a pre-existing medical condition of the Plaintiff contributed to the Plaintiff’s current complaints.   

Reviewing the totality of the circumstances, the court noted that, while the UIM carrier’s offer fell short of satisfying a vocational expert’s six-figure loss calculation, the UIM carrier was not prohibited from considering the doctors’ opinions regarding the causation issue.   

Accordingly, the court found that reasonable minds could differ as to the true sum of the Plaintiff’s losses.  More specifically, the court ruled that it could not be said that GEICO’s evaluation was “frivolous or unfounded” as required by bad faith law to support a claim presented under the heightened burden of proof of clear and convincing evidence of bad faith.  As such, the court granted the Motion for Partial Summary Judgment on the bad faith claim.

Anyone wishing to review this decision may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C., for bringing this case to my attention. 

Monday, November 12, 2018

No UIM Coverage for Gunshot Wounds From High Speed Police Chase

In the case of Eberhardinger v. City of York and State Farm, No. 1:16-cv-2481 (M.D. Pa. Sept. 18, 2018 Connor, C.J.), the court addressed the elements of a UIM claim. More specifically, the court reaffirmed the rule that a Plaintiff’s alleged injuries in a UIM claim must have a causal connection to the use of a motor vehicle.  

In this matter, the passenger Plaintiff was struck by bullets fired by the police during a high speed vehicle chase.  The Plaintiff passenger, who was the owner of the vehicle involved in the high speed chase, sought PIP and UIM benefits from her policy.  

The court held that the injuries to the Plaintiff passenger from being shot did not arise out of the “maintenance or use of a motor vehicle” for purposes of recovering UIM benefits under the policy.   These injuries were found to be not vehicle-caused injuries, but rather, were the direct consequence of an intentional intervening act of a third party, with only incidental involvement of the motor vehicle.  

The court additionally noted that, in any event, even if causation could be shown, the UIM coverage under the policy excluded injuries caused by a firearm.  

The court in this decision went on to grant summary judgment on the Plaintiff's companion bad faith claim on the rationale that there could be no bad faith where there was no coverage under the policy.

In case you are interested, the court in this decision also addressed claims of Section 1983 civil rights liability against the municipal defendants.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

Various Section 1983 Civil Rights Claims Dismissed in Police Pursuit Case

In the case of Cobb-Leavy v. Borough of Weadon, No. 18-1069 (E.D. Pa. Sept. 5, 2018 Shiller, J.), the court granted a Defendant’s Motion to Dismiss the Plaintiff’s §1983 and other claims arising out of alleged injuries sustained when a car pursued by a police officer crashed into the Plaintiff’s building. 

The court ruled that the Plaintiff’s excessive force claim against the pursuing officer failed since there was no seizure as that term is defined in this context. 

The court additionally held that the Plaintiff’s failure to train claim asserted against the borough failed since the Plaintiff did not allege a policy or a link between a policy and the crash.  

The court also found that the police chief was entitled to qualified immunity under the circumstances presented.   As stated, the Defendant’s Motion to Dismiss was granted.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Friday, November 9, 2018

PRESS RELEASE: Tort Talk Has Been Nominated for The Expert Institute's Best Legal Blog Contest.

Tort Talk has been selected to compete in The Expert Institute’s Best Legal Blog Competition.

From a field of hundreds of potential nominees, Tort Talk has received enough nominations to join the one of the largest competitions for legal blog writing online today.  I say "Thank You" to all who nominated Tort Talk.

According to the Expert Institute, now that the blogs have been nominated and placed into their respective categories, it is up to their readers to select the very best. 

With an open voting format that allows participants one vote per blog, the competition will be a true test of the dedication of each blog’s existing readers, while also giving up-and-coming players in the legal blogging space exposure to a wider audience.

Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category will be crowned overall winners.

The competition will run from November 5th until the close of voting at 12:00 AM on December 17th, at which point the votes will be tallied and the winners announced.

The competition can be found at https://www.theexpertinstitute.com/blog-contest/.  To vote for Tort Talk, please go to the "Legal News" button.

 Founded in 2011, The Expert Institute is a technology-driven platform for connecting qualified experts in every field with lawyers, investment firms, and journalists looking for technical expertise and guidance. The Expert Institute combines a vast database of pre-screened experts with a talented case management team capable of custom recruiting experts to fit the specific needs of our clients. The Expert Institute also maintains one of the internet’s most visited blogs on expert witnesses, in addition to an extensive case study archive and expert witness resource center.

Thursday, November 8, 2018


Here's a LINK to an article of mine entitled "The Lessons of Forrest Gump" that was published in the March, 2015 edition of the Pennsylvania Lawyer magazine put out by the Pennsylvania Bar Association.

The article takes life lessons and quips from a favorite movie and applies them to the practice of law in a manner that I hope you will find to be an enjoyable read.