Monday, August 20, 2018

THE FUTURE IS NOW: PA Federal Court Addresses Personal Injury Liability Claims Against Uber



In the case of Fusco v. Uber Technologies, Inc.,  No. 17 - 00036 (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court granted Uber’s Motion for Summary Judgment as to negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the Plaintiff customer.  

The court granted the Motion given that there was no record of any alleged instances of past misconduct by the offending driver.  

The court noted, however, that, after the Plaintiff filed his Complaint, news outlets in the area reported that the driver involved in the incident had a prior criminal conviction.  As such, the court granted the Plaintiff leave to amend his Complaint as to these claims and deferred consideration of the driver’s past conviction until a later date in the proceedings.  

By way of background, the Plaintiff attended a party in the University City neighborhood of Philadelphia. Given that the Plaintiff had alcohol at the party, he contacted Uber for a ride to his home in Cherry Hill, New Jersey.  

According to the Opinion, the Uber app conceals the customer’s destination until the start of a booked trip.   Accordingly, when a driver arises to pick up the Plaintiff, he does not know the Plaintiff’s destination.  The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable.   According to the Opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.  

In this matter, when the Uber driver arrived, he refused to take the Plaintiff to his home in southern New Jersey.  The Plaintiff remained seated in the car and repeated his request to be brought home.  

At that point, the driver dragged the Plaintiff out of the car, kicked him and beat him, leaving the Plaintiff unconscious and bleeding. The Plaintiff later filed this suit against Uber asserting a negligent hire claim, fraud and related misrepresentation claims, and vicarious liability claims.  

The court reviewed the law requiring the Plaintiff to show that the employer was on notice of an employee’s propensity for misconduct.  As there was no such information pled in the Complaint or otherwise found in the record, the court granted Uber’s Motion to Dismiss.  However, as noted, the Plaintiff was allowed to amend the Complaint given the recent news that had come out that the driver in the incident had a prior criminal conviction.

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

Source: “Digest of Recent Opinion” Pennsylvania Law Weekly (Aug. 14, 2018).



Link to Judge Williamson's Gist of the Action Decision

Here is the missing LINK to yesterday's post on Judge David J. Williamson's Monroe County decision on the Gist of the Action Doctrine in the Weiss v. Nazareth Mut. Ins. Co. case.

I apologize for forgetting to add the Link to the original post.

Thanks for reading Tort Talk.



Gist of the Action Doctrine Held to Bar Negligence Claim


In the case of Weiss v. Nazareth Mutual Insurance Company, No. 6293-Civil-2017 (C.P. Monroe Co. July 5, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted Preliminary Objections under the gist of the action doctrine in a case arising out of an insurance claim following a fire loss.  

According to the Opinion, the Plaintiff claimed that, following the fire, the Plaintiff’s property was burglarized.   As such, the Plaintiff submitted a claim to the insurance carrier with respect to the personal property that was allegedly stolen.   In his Complaint, the Plaintiff asserted that the carrier had not acted upon his claim for some of the lost personal property.  

The Complaint additionally contained claims against a remediation company who worked on the premises following the fire.   The Plaintiff alleged that the remediation company removed some of the Plaintiff’s property during the remediation project and never returned it to the Plaintiff.   That remediation company filed various Preliminary Objections to the Complaint.  

Judge David J. Williamson
Monroe County
In part, the remediation company asserted that the Plaintiff’s claims of negligence were barred by the gist of the action doctrine.   Judge Williamson agreed, finding that this case was primarily a contract action and that the allegations of the negligence claim were nearly identical to those pled in the contract claim.  As such, the negligence claim was stricken from the Complaint on the basis of the gist of the action doctrine.  

In another notable decision in this Opinion, the court dismissed the Plaintiff’s claim for negligent infliction of emotional distress after finding that the Plaintiff had failed to assert any physical harm as required by the elements of that cause of action. 

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

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  





Standards Applicable to Motion to Seal Court Documents Pertaining to a Settlement

In the case of Hughes v. Wilkes-Barre Hospital, No. 16-CV-6463 (C.P. Lacka. Co. Aug. 9, 2018 Nealon, J.), Judge Terrence R. Nealon addressed the standards applicable to a defense motion to seal informatio pertaining to a settlement in a medical malpractice case.

In general, a defendant must establish that its interest in secrecy outweighs the well-settled presumption in favor of public access to the records of the taxpayer-supported judicial system.

After weighing various factors, the Court denied the Defendants' motion to seal the record of the settlement in this matter was denied with respect to the Plaintiffs' filed petition for court approval of a minor's settlement.

Anyone wishing to review this decision may click this LINK.

Thursday, August 16, 2018

TORT TALK TIP: COURTROOM ETIQUETTE


The following Courtroom Etiquette tips are offered up to lawyers young and old who may have been lulled into bad habits by watching too many legal dramas on TV or in the movies which typically portray hotshot lawyers who think that the courtroom is theirs as opposed to the Judge's:

-Always arrive a half hour early for your argument or hearing so as to ensure that you will be on time.

-Hand your business card to the court reporter prior to the start of the proceedings; write the name of your client on your card.

-Be polite to the tipstaff and court personnel.

-Always stand when addressing the court, even if other attorneys don't.

-Try to always refer to the Judge as "Your Honor" instead of "Judge."

-Always ask permission to approach or move about in the Judge's courtroom.

-Always stop talking, even in mid-sentence, if the Judge starts to speak.

-Never interrupt a Judge while she or he is speaking.

-Never interrupt opposing counsel -- 99% of the time you will get your chance to respond.

-Don't make faces at opposing counsel's statements.  Be stoic.  Your calm, measured legal argument will win the day not your faces or sighs or shakes of the head.

-Last but not least, keep your cell phone in your pocket or briefcase and give your full attention to the proceedings.

Wednesday, August 15, 2018

CUMMINS MEDIATION SERVICES



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

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.



Tuesday, August 14, 2018

Eastern Federal District Court Takes a Closer Look at Interplay Between First Party Claims and Bad Faith Claims


The issue of bad faith claims in the first party benefits lawsuits was reviewed by the Eastern Federal District Court in the case of Shea v. USAA, No. 17-4455 (E.D. Pa. July 25, 2018 Surrick, J.).  The issues came before the court on the carrier's motion to dismiss.

Following the insured's involvement in a motor vehicle accident, the insured began to receive the benefit of her $100,000 in first party medical coverage under her own policy.  At some point after a peer review, the carrier stopped the payment of the benefits.  The Plaintiff filed a breach of contract claim, alleging violations of 75 Pa.C.S.A. Section 1797, and asserted bad faith conduct on the part of the carrier.

The court noted that there are conflicting Pennsylvania state and federal court decisions on the crucial issue of whether the MVFRL's provisions pertaining to peer reviews of first party medical benefits supplants claims for breach of contract, bad faith, and consumer protection law violations.  It was noted that, to date, the Pennsylvania Supreme Court has not addressed the proper interaction of these causes of action in the first party context.

In his decision in this Shea case, Judge R. Barclay Surrick of the Eastern District Federal Court lays out the issues and the law in great detail and in an easy-to-follow fashion.

The court rejected the defense contention that the MVFRL's peer review process preempts the existing common law remedy for breach of an insurance contract's implied covenant of good faith and fair dealing.  The Court ruled that 75 Pa.C.S.A. Section 1797, which lays out the framework for first party benefits, does not prohibit an action for damages arising from an alleged breach of the insurance contract's implied covenant of good faith and fair dealing where those damages are otherwise available under the facts alleged.

In reviewing the conflicting line of cases on the issue of whether a Section 1797 peer review claim can be asserted in the same case as a Section 8371 bad faith claim, the Shea court elected to side with what it termed as a growing number of cases that have fallen on the side of allowing both claims to be pled in a single action.  In the end, the court in Shea held that, where it is alleged that a carrier failed to follow the mandates of Section 1797, a plaintiff's remedies are not limited to those stated under Section 1797, but could also include the remedies allowed under the bad faith statute found at 42 Pa.C.S.A. Section 8371.

In the end, the court denied the carrier's motion to dismiss.

Anyone wishing to review this decision may click this Memorandum Opinion may click this LINK.

I send thanks to Lee Appelbaum, writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, and from the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this case to my attention.

Monday, August 13, 2018

Issues of Fact Preclude Summary Judgment in Fall Down Steps; But Claims for Attorneys Fees Dismissed


In his recent decision in the decision of Gordner v. McIntosh, No. 2017-CV-6468 (C.P. Lacka. Co. July 9, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Defendant owners’ Preliminary Objections to the Plaintiff’s Complaint, including a demurrer to the Plaintiff’s negligence cause of action stated in this slip and fall case. 

In addressing the demurrer to the Complaint, the court provided a detailed description of the current status of Pennsylvania law pertaining to slip and fall matters.   In reviewing that law, the court noted that, although there are Pennsylvania cases that stand for the proposition that mere evidence of a highly polished floor, standing alone, is sufficient to sustain a negligence claim, other cases confirm that the manner in which the polish or wax was applied and maintained could give rise to a cause of action for negligence in slip and fall matters.  

The court found that the Plaintiff stated a valid cause of action when the Plaintiff alleged that the landowners’ high gloss treatment of their hardwood stairs amounted to a negligent creation and maintenance of a hazardous condition. The Plaintiff had additionally alleged that the Defendants had failed to provide adequate lighting for the slippery stairs and/or to warn all invitees of the hazardous condition of the stairs.  

The Plaintiffs additionally asserted in the Complaint that one owner stated after the fall that “[w]e usually tell people these stairs are slippery.”  

The court found that, accepting the Plaintiff’s allegations as true as required by the standard of review for a demurrer, the Plaintiff’s Complaint stated a cognizable negligence claim.  
 

The court in this matter otherwise sustained the landowner Defendants’ demurrer to the Plaintiffs’ claim for attorney’s fees given that the Complaint failed to reference any statutory, contractual, or decisional basis for the claim for counsel fees.   As such, the court found that any claim for counsel fees in this tort action is insufficient as a matter of law.  Accordingly, the demurrer to the claim for counsel fees was sustained.

The court also struck the Plaintiff’s specific claims for dollar amounts for eight (8) separate categories of damages as being improper.   Rather, the court noted that a prayer for relief should only indicate whether or not the Plaintiff is demanding compensatory damages in excess of or below the compulsory arbitration limit in the county.  

In the end, the court sustained some of the Defendants’ Preliminary Objections and overruled others.  

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

If you need assistance in resolving your premises liability case by way of a Mediation, please do not hesitate to contact me should I be able to help you bring your case to a close.  Resume and fee schedule available on request.  Thanks.

Wednesday, August 8, 2018

Pennsylvania Supreme Court to Address Application of Fair Share Act in Products Liability Cases



The Pennsylvania Supreme Court has agreed to hear the appeal in the case of Roverano v. John Crane, No. 58 EAL 2018 (Pa. July 31, 2018) to address an issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability amongst defendants in the context of this products liability case.

The Supreme Court's Order can be viewed HERE.

The Tort Talk post on the Superior Court's decision in Roverano, along with a link to that decision, can be viewed HERE.

Source:  "Pa. Justices to Consider Application of Fair Share Act in Strict Liability Cases"  by Max Mitchell, The Legal Intelligencer (Aug. 7, 2018).

Curb Deemed Open and Obvious in Trip and Fall Case

In the case of Slappy-Sutton v. Speedway, LLC, No. 16-4765 (E.D. Pa. June 22, 2018 DuBois, J.), the court granted a Defendant’s Motion for Summary Judgment in a trip and fall case involving a curb after the court found that the curb presented an open and obvious condition.  

The Plaintiff tripped and fell over a curb in a Convenient Store parking lot after refueling his vehicle.   The Plaintiff alleged a failure to make the curb a different color to distinguish the curb from a nearby cement strip.   After reviewing pictures and expert testimonies provided by the parties, the court noted that local township code provisions did not require a landowner to distinguish between the color of a curb and the pavement below.  

The court was also influenced by the fact that the Plaintiff admitted that the lighting in the area was “pretty decent” and that he could clearly “distinguish the rise and step up” as he entered the store.  

As such, summary judgment was granted.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (July 17, 2018). 
 



 

Presence of Wet Floor Signs Does Not Establish That Floor Was Wet



In the case of Rubes v. Kohl’s Department Stores, Inc., 3:17-CV-1842 (M.D. Pa. June 29, 2018 Munley, J.), the court granted summary judgment in a slip and fall case.   In his decision, Judge James M. Munley of the Federal Middle District Court of Pennsylvania confirmed the well-established law that the mere occurrence of an accident does not establish negligent conduct on the part of another.  

In his Opinion, Judge Munley provides a detailed description of the current status of Pennsylvania law on a plaintiff's burden of proof in slip and fall matters.

The court noted that, at a minimum, a slip-and-fall plaintiff must produce some evidence either that the possessor of land had a hand in creating the allegedly dangerous condition, or that he or she had actual or constructive notice of that condition.  

In this matter, the court found that the Plaintiff presented no evidence of the condition of the floor where she slipped.  The evidence revealed that the Plaintiff walked into the store from the inclement weather outside, took three or four steps into the store, and slipped and fell.

The court otherwise noted that the presence of wet floor signs in the area of the Plaintiff’s alleged fall do not establish that the floor was actually wet, since wet floor signs can be set out on a precautionary basis.  

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

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

Monday, August 6, 2018

Summary Judgment Granted in Monroe County Under Hills and Ridges Doctrine


In the case of Bless v. Pocono Mountain Recovery Center, LLC., No. 8167 - CV - 2016(C.P. Monroe Co. May 17, 2018 Zulick, J.), Judge Arthur L. Zulick, of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment based upon the hills and ridges doctrine in a case where the record contained evidence of a recent snowfall which caused slippery conditions. 

According to the Opinion, at the time of the accident, the Plaintiff’s husband was coming to visit her at the Defendants' premises.  When the Plaintiff saw that her husband's vehicle became stuck in the ice and snow on the roadway leading up to the location, the Plaintiff began to walk towards her husband and, while doing so, slipped and fell.

The Plaintiffs attempted to avoid the summary judgment by arguing that the hills and ridges doctrine was inapplicable because conditions were not generally icy in the area at the time of the incident and that the accumulation on the road was allegedly not natural.  

Judge Arthur L. Zulick
Monroe County

After reviewing the current status of the hills and ridges doctrine law, Judge Zulick reviewed the record before him and found no evidence of any unreasonable accumulations of snow or ice such that any ridges or elevations had formed.  

The court also noted that the record confirmed that the Plaintiff knew that the road was hazardous before she stepped on to it because she had seen her husband’s car slide backwards down the roadway on the hill.  

The court also noted that, although the Plaintiffs argued that there was insufficient evidence of generally slippery conditions prevailing in the area that day, both Plaintiffs had testified that there had indeed been a recent snow fall.  

Based upon the record before the court, summary judgment was granted under the hills and ridges doctrine.

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (June 5, 2018).  

Thursday, August 2, 2018

UIM Stacking Issue Remanded Back to State Court By Federal Court for Resolution

In the case of Allstate Fire and Cas. Ins. Co. v. Archer, No. 1:17-CV-331 Erie (W.D. Pa. June 4, 2018 Hornak, J.), the Western District Federal Court declined to address a stacking issue raised in a declaratory judgment action after finding that the issue would more properly be decided by the state court given the contractual issues presented.  

As such, in this matter, the court remanded the case to the state court system for a decision.  

In so ruling, the court weighed several factors with respect to the proper exercise of federal jurisdiction primarily as set forth in the case of State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d. Cir. 2000) [citations omitted] and Reifer v. Westport, 751 F.3d 129, 145-46 (3d. Cir. 2014).  

As such, this Western District Federal Court decision raises the question as to whether the federal district courts of Pennsylvania will accept stacking declaratory judgment actions for a decision, or will continue to remand such issues back to the state court for resolution.  

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Scott Cooper, Esquire of the Harrisburg, PA office of Schmidt Kramer for bring this case to my attention. 

Validity of UIM Rejection Form Language in Commercial Auto Policy Upheld (Mem. Op.)

In a memorandum opinion in the case of Rarick v. Federal Services Ins. Co., 2:13-cv-03286-JFL (E.D. Pa. July 10, 2017 Leeson, J.), whch involved an employee who challenged the rejection form signed by his employer on a commercial motor vehicle insurance policy, the District Court held that the employee (as a third party beneficiary) had standing to challenge the validity of the rejection of UM/UIM coverage form.

The court additionally confirmed that rejection forms under Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law apply to commercial policies. 

The District Court in Rarick ultimately held that, as there were only minor deviations in the form as compared to the form language in 75 Pa.C.S.A. Section 1731, the validity of the form was upheld.

Anyone wishing to review this case may click this LINK.

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

Tuesday, July 31, 2018

Motion for Remittitur Granted in Med Mal Case


In the case of Harker v. Chan, No. 3:15-CV-277 (W.D.Pa. July 27, 2018 Gibson, J.), Judge Kim Gibson of the Western District Federal Court granted a Defendant's Post-Trial Motion for remittitur in a case in which the jury entered a verdict in excess of $47 million dollars in a medical malpractice case.

The case arose out of allegations of medical malpractice associated with the infant Plaintiff suffering disfigurement when his head was wrapped in ACE bandage shortly after birth.  The court noted that while there was evidence that the infant was permanently disfigured and that hair would not grow in certain spots, there was evidence that such conditions could improve with time and that there was no brain damage or cognitive impairment suffered by the child.

After reviewing the standards applicable to motions for remittitur, the court found that the jury's verdict shocked the judicial conscience.  The court noted that, under the law, if the motion to remit is granted, the award cannot be lowered to below an amount that does not shock the judicial conscience.
It was also noted by the court that the law requires that the Plaintiff be given the option of a new trial on damages in conjunction with the order on the reduced amount of the verdict that will be allowed by the court.

The court reduced the $43.75 million dollar non-economic damages portion of the verdict to $16 million and gave the Plaintiff's 14 days to consider whether to accept the Court's ruling or to proceed to a new trial on damages.

Anyone wishing to review this decision may click this LINK.

Source:  Article:  "Judge Cuts $47M Med Mal Verdict by Half, Finding It 'Shocks the Judicial Conscience."  By Max Mitchell.  The Legal Intelligencer (July 30, 2018).

Minnesota Claims Rep Ordered by Federal Court To Come to Pennsylvania for Deposition in Post-Koken Auto Case

Minnesota
In his recent decision in the case of Centini v. MetLife Auto & Home, No. 3:17-cv-02144 (M.D. Pa. April 3, 2018 Munley, J.), Judge James M. Munley of the Federal Middle District Court of Pennsylvania granted a Plaintiff’s Motion to Compel the deposition of the carrier’s claims professional.  

The court additionally ordered that the claims representative’s deposition would be conducted in Pennsylvania and not in Minnesota where the claims representative was apparently located.  

The court additionally noted that the claims representative would be subjected to a complete deposition concerning the subject uninsured motorist claim at issue. 

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




Thursday, July 26, 2018

Language of UIM Rejection Form Upheld in Commercial Vehicle Setting (Non-Precedential)

In its non-precedential decision in the case of Fatai King v. US Xpress Inc, et al, No. 16-2623 (3d Cir. July 11, 2018), the Third Circuit Court of Appeals affirmed a District Court's finding that an uninsured rejection form in a commercial policy was valid. 

According to a review of the Opinion, there were additional sentences in the rejection language of the form beyond that required by the 75 Pa.C.S.A. Section 1731.

The Fatai King court noted that a verbatim recitation of the statutory language was not required to render a UIM rejection form valid. The court noted that the changes to the form at issue in this case were appropriate to tailor the form to the commercial vehicle context to which it applied.

Anyone wishing to review this case may click this LINK.

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

Tuesday, July 24, 2018

Summary Judgment Granted in Part and Denied in Part Under Tincher Analysis


In the case of Mercurio v. Louisville Ladder, Inc., No. 3:16-CV-412 (M.D. Pa. May 31, 2018 Mariani, J.), the court granted summary judgment in part and denied it in part in a design defect products liability case. 

The case arose out of a Plaintiff's fall from a ladder.

In this decision, the court noted that the admissibility of the Plaintiff’s design defect expert required a Daubert hearing on the Defendant's Motion in Limine seeking to preclude the Plaintiff's expert from testifying. 

The court additionally found that there was no basis for the Plaintiff’s expert’s opinion that the warnings on the product at issue were defective.  The court noted that the expert’s opinion in this regard was a spur of the moment comment during depositions.    The court additionally found that the Plaintiff’s expert was not qualified to evaluate the warnings at issue.  

Judge Robert D. Mariani
M.D. Pa.
Judge Mariani also concluded that, under the new post-Tincher law, compliance with industry standards by the defense is evidence that a jury may consider as relevant to a product’s risk/utility defect test.  

The court also reaffirmed that the Azzarello case was overruled by the Tincher decision.  

Judge Mariani also confirmed that, under the current status of Pennsylvania products liability law, there is no longer a bright line between negligence and strict liability theories in a given case.  

In the end, the court denied the Defendant's Motion for Summary Judgment relative to the design defect and breach of implied warranty claims.  However, the court did grant the Defendant summary judgment on the claims of a manufacturing defect, inadequate warning, and breach of express warranty.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order entered in the case.

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention.  

Sunday, July 22, 2018

Bring Your Case to A Close with Cummins Mediation Services



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

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

Friday, July 20, 2018

Recklessness and Punitive Damages Claims Stricken in Alleged Cell Phone Distracted Driving Case


In the Cumberland County case of Manning v. Barber No. 17-7915 Civil (C.P. Cumb. Co. June 21, 2018 Masland, J., Beck, J., and Placey, J.) (Op. by Masland, J.), the court granted a Defendant’s Preliminary Objections and dismissed a Plaintiff’s punitive damages claim in a case in which the Plaintiff alleged that the Defendant driver was texting while driving.  

According to the Opinion, the Plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The Plaintiff alleged that the Defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the Plaintiff’s vehicle. The Plaintiff additionally alleged that, at the time of the accident, the Defendant was not looking at the roadway because she distracted while looking at and/or texting on her cell phone. 

In the Complaint, the Plaintiff alleged allegations of recklessness and sought an award of punitive damages. The Defendants filed Preliminary Objections to the Complaint asserting that the allegation of cell phone use alone, absent other indicia of recklessness, was insufficient to support and award of punitive damages.  

The court initially rejected the Plaintiff’s argument that the Defendants had improperly attacked or challenged the legality of the punitive damages sought in the Complaint by way of Preliminary Objections.  The court in this matter distinguished the Plaintiff’s reliance upon a case in which a Defendant had utilized a demurrer to attack a claim of punitive damages.

In this Manning case, the Defendants asserted Preliminary Objections on the basis of a failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter...” under Pa.R.C.P. 1028(a)(2).  

The court found that the Defendant’s Preliminary Objections were appropriate given that the Defendant was requesting the court to strike the allegations of recklessness and the demand for punitive damages as improper due to the fact that those claims were based upon allegations that only constituted negligence. 

The Manning court went on to address the merits of the Preliminary Objections presented.   After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”  

The court did note that there was a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cell phone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cell phone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.  

In reviewing the Plaintiff’s Complaint, the note noted that the additional allegations presented by the Plaintiff were simply boilerplate allegations that the Defendant was inattentive and going too fast, all of which allegations the court found only amounted to a classic claim of negligence, and not  recklessness.

The court in Manning additionally rejected the Plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance, the Manning  court declined to accept the Plaintiff’s argument in this regard.  

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


I send thanks to Attorney Andrew T. Rhoades of the Camphill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.  

Wednesday, July 18, 2018

Summary Judgment Granted Where Plaintiff Tripped in Supermarket Over Open and Obvious Pallet Stacked with Cases of Water

(Not a picture from this case)

In the recent case of Walker v. Save-A-Lot, No. 18-CV-95 (E.D. Pa. June 12, 2018 DuBois, J.), summary judgment was granted in favor the defense in a case in which a Plaintiff fell over a pallet while stepping backwards.

According to the Opinion, the pallet was located in the middle of the aisle in the frozen foods section.  The Plaintiff walked towards the pallet and stopped her cart next to the pallet and went went to the door of the frozen foods section to grab a pizza.  As she then backed up, she tripped over the pallet.  The Plaintiff alleged that she never saw the pallet because she was focused on getting her pizza from the freezer unit.

The court found that, based upon the record before it, the pallet over which the Plaintiff tripped, was an open and obvious condition.  It was noted that the Plaintiff had walked past another pallet in the same aisle and that both pallets were stacked high with cases of water.  The court pointed to the well-settled law that landowners are not liable for injuries caused by known of obvious conditions.

Quoting the well-known case of Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), the court in Walker stated that “[a] danger is deemed to be ‘obvious’ when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.’”

While the question of whether a danger is known and obvious is typically a jury question, the court noted that where, as here, no reasonable minds on a jury could disagree on a conclusion that the danger was known and obvious, the court could decide the issue on a summary judgment motion.

The court additionally noted that it is "hornbook law in Pennsylvania that a person must look where he is walking."  

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

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention. 

Monday, July 16, 2018

Pennsylvania Federal District Court Remands Stacking Issue to State Court For a Decision



In the case of Allstate Fire and Cas. Ins. Co. v. Archer, No. 1:17-CV-331 (W.D. Pa. June 4, 2018 Hornak, J.), the Western District Federal Court declined to address a stacking issue raised in a declaratory judgment action after finding that the issue would more properly be decided by the state court given the contractual issues presented.  

As such, in this matter, the court remanded the case to the state court system for a decision.  

In so ruling, the court weighed several factors with respect to the proper exercise of federal jurisdiction primarily as set forth in the case of State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d. Cir. 2000) [citations omitted] and Reifer v. Westport, 751 F.3d 129, 145-46 (3d. Cir. 2014).  

As such, this Western District Federal Court decision raises the question as to whether the federal district courts of Pennsylvania will accept stacking declaratory judgment actions for a decision, or will continue to remand such issues back to the state court for resolution.  

Please click this LINK to view this decision online.

I send thanks to Attorney Scott Cooper, Esquire of the Harrisburg, PA office of Schmidt Kramer for bring this case to my attention.

Thursday, July 12, 2018

Notable But Non-Precedential Superior Court Post-Koken Decision Noted (From Back in 2016)


I recently came across a notable, non-precedential, post-Koken decision from back in 2016 entitled Zellat v. McCulloch, No. 1610 W.D. 2014, 2016 W.L. 312486 (Pa. Super. Jan. 26, 2016) (Bowes, Olson, and Stabile, J.J.) (Mem. Op. by Bowes, J.) (Non-precedential).   

Unfortunately, this post-Koken decision on notable issues was not published by the Pennsylvania Superior Court and was, instead, listed as a non-precedential decision.  

The hope remains that the Pennsylvania Superior Court and the Pennsylvania Supreme Court will publish any and all decisions related to post-Koken issues as any guidance on these still novel and developing issues would be of great help to both the bench and the bar in litigating these types of cases.

The case of Zellat involved a post-Koken lawsuit in which the Plaintiff sued both the third party tortfeasor on a negligence claim and her own underinsured motorist carrier on a UIM claim. 

At the trial level, the Allegheny Court of Common Pleas allowed the case to proceed in front of a jury without the UIM insurance company Defendant being mentioned.  Nor was the type of insurance involved mentioned.  

At trial, the jury found that the tortfeasor’s negligence was not the factual cause of any harm. The Plaintiff appealed.  

Among the many arguments listed on appeal by the Plaintiff was that she was denied due process because the UIM carrier was not mentioned or identified at trial.   In this regard, the Plaintiff relied upon the prior decision of Stepanovich v. State Farm, 78 A.3d 1147 (Pa. Super. 2013).  

Similar to its previous decision in the Stepanovich case, the Superior Court held in Zellat that it was not per se reversible error not to identify the insurance company when the insurance company Defendant is in a joint trial with the third party tortfeasor.  

The court in Zellat found this Stepanovich decision to be on point on the issue whether a Plaintiff is able to establish prejudice when the insurance company is not identified or mentioned.   The court in Zellat stated that, similar to as to the Stepanovich decision, prejudice was not established by the failure to identify the UIM carrier at trial.  

As such, the Zellat court found that the trial court did not abuse its discretion in not identifying the UIM carrier during the joint trial with the tortfeasor.  

In this appeal, the Plaintiff also presented a secondary contention that she was unfairly “tagged-teamed” by the participation of two (2) defense lawyers, one of whom represented the tortfeasor and the other who defended the case for the UIM carrier.   

This argument was rejected by the Superior Court in Zellat given that the Plaintiff did not request a new trial as part of her appeal process with respect to the participation of both defense counsel at trial. As such, this argument was rejected.  

Anyone wishing to read this case, may click this LINK.




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Tuesday, July 10, 2018

Can A Bad Faith Claim Be Pled Where There is a Finding of No Coverage Due Under Policy?

In the case of Frantz v. Nationwide Ins. Co., No. 3:18-cv-0509 (M.D. Pa. May 15, 2018 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania appeared to part ways somewhat from the notion that a bad faith claim cannot exist in a matter where there is otherwise no insurance coverage due for a variety of reasons.  

In this case, the court dismissed the insured’s breach of contract claim after finding that no insurance coverage was due under the circumstances presented.  Nevertheless, the court still gave the Plaintiff leave to file an Amended Complaint asserting common law and statutory bad faith claims. 

In his Opinion, Judge Caputo cited the standard of review requiring that a bad faith Plaintiff has to show that there was no reasonable basis to deny coverage and that the insured knew or recklessly disregarded this fact.  

However, the court then set forth another standard, indicating that “[a] plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a ‘lack of a good faith investigation into facts, and failure to communicate with the claimant.’”  

It appears that the amendment to the Complaint was allowed based upon this second standard, which was treated here as an independent basis for a §8371 bad faith claim even if no coverage is actually due under the policy.  

Judge Caputo did otherwise reaffirm that §8371 does not cover alleged bad faith in soliciting a policy and, therefore, did dismiss that claim in this matter.  

I do not have a copy of this decision handy but the docket number is provided above.

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.  


Friday, July 6, 2018

Summary Judgment Reversed in Alleged Misuse of a Safety Harness in a Products Liability Case


In its recent decision in the case of Zimmerman v. Andrew, No. 662 WDA 2017 (Pa. Super. June 1, 2018 Bowes, J., Panella, J. and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of a Defendant in a products liability case.  

According to the Opinion, the Plaintiff was injured when a safety harness he was utilizing while cutting down a tree allegedly failed when the Plaintiff was 35 feet up in a tree and the Plaintiff fell to the ground and sustained personal injuries.  

The record before the court indicated that the Plaintiff had gone to the home of his friend to cut down a dead tree at the request of the friend.   The friend had obtained the harness from another friend who had purchased the harness but never used it.   The harness came with paper instructions.  

The Plaintiff skimmed the instructions but did not thoroughly read the instructions.   The Plaintiff also admittedly saw a warning label on the harness itself but did not read it completely.  

The Plaintiff, who had limited personal experience using a harness in construction work and from seeing them used on television programs featuring people cutting trees, thought the use of the harness was self-explanatory.  

However, the Plaintiff and his friend put the harness on the Plaintiff backwards.  

Thereafter, when the Plaintiff utilized the harness to bear his weight high up in the tree, the harness failed and the Plaintiff fell to the ground.  

The Plaintiff sued the manufacturer of the harness under claims of strict product liability, negligence, and breach of warranty.  

The Plaintiff more specifically alleged that the harness was sold with insufficient strength and durability such that it was unreasonably dangerous.  The Plaintiff also asserted that the harness was sold with inadequate warnings regarding the proper use of the device.  

In its defense, the Defendant asserted the defenses of misuse of the product and comparative negligence.  

More specifically, the Defendant asserted that the harness was intended for use on construction projects by workers trained on how to use it and that the Plaintiff’s use of the device in a tree without training was a misuse, not an intended use, and further was not foreseeable.  The defense also asserted that the Plaintiff was wearing the harness backwards.

The trial court had entered summary judgment after finding that “[t]here is absolutely nothing that we would make a manufacturer think that” someone would use the product as the Plaintiff did and that “it would be a waste of time to take this to a jury” because the jury would have to find in favor of the Defendant if they followed the court’s instructions as to the law.  

On appeal, the Pennsylvania Superior Court reviewed the current status of Pennsylvania strict liability law under §402A of the Restatement (Second) of Torts as well as under general negligence principles given the Plaintiff’s separate claims in this regard.   The Superior Court confirmed that, under the current status of Pennsylvania law, the Plaintiff’s use of the harness in an unforeseeable or highly reckless manner could serve to defeat the Plaintiff’s §402A claim.  

Citing to Reott v. Asia Trend, Inc., 55 A.3d 1088, 1097 (Pa. 2012), the Superior Court noted that the Pennsylvania Supreme Court had recognized that product misuse and highly-reckless conduct are affirmative defenses to a strict liability claim.   According to Reott, to establish a misuse of the product, the Defendant must show that the use was “unforeseeable or outrageous.”  

The Reott court had noted that highly reckless conduct is akin to evidence of misuse and requires the Defendant to prove that the Plaintiff would have been injured despite the curing of the alleged product defect, or that the misuse of the product by the plaintiff was so extraordinary and unforeseeable as to constitute a superseding cause.  

The court in this Zimmerman case went on to note, citing other precedent, that it is “well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a designed defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.”   See Op. 8. [emphasis in Zimmerman].

In this Zimmerman decision, the court pointed to various issues of fact, along with issues raised by the parties' experts, to  conclude that the Plaintiff tendered sufficient evidence that, if accepted by the jury, would establish that the harness was defective, that the Defendant was negligent in the product’s design and instructions, and that these deficiencies were a proximate cause of the Plaintiff’s injuries.  

As such, the Superior Court found that it was error for the trial court to rule on the record before it that the Plaintiff’s misuse of the harness was the sole cause of the accident. 

The Superior Court also ruled that there were material issues of fact relative to the negligence issues such that the Plaintiff’s negligence claims should also be allowed to proceed to the jury.  

In light of the its other conclusions, the Superior Court additionally allowed the Plaintiff’s breach of warranty claim to also proceed to the jury.  

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

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my attention.

Thursday, July 5, 2018

Passenger Grabbing Steering Wheel Does Not Amount to Lawful Possession of Vehicle


In the case of State Farm Automobile Insurance Company vs. Dooner, 2018 Pa. Super. 146 (Pa. Super. June 4, 2018 Bender, P.J.E., Lazarus, J., Kunselman, J.) (Op. by Bender, P.J.E.), the court affirmed a trial court’s granting of summary judgment in favor of a passenger’s automobile insurance carrier on a coverage question where the passenger grabbed the steering wheel from the driver and caused the car to crash.

According to the Opinion, the insured was a passenger in a friend’s vehicle when a fight broke out and the insured jerked the steering wheel, causing the car to hit an oncoming police cruiser.   The driver of the vehicle and the police officer sued the friend for the accident.  

The friend’s automobile insurance carrier filed a declaratory judgment action seeking a ruling that it had no duty to defend, indemnify, or otherwise provide liability coverage to the friend under her insurance policy.   As noted, the trial court granted the carrier’s Motion for Summary Judgment, finding that the carrier owed no duty of coverage.  

The court noted that, under the friend’s automobile insurance policy, coverage was provided for a “non-owned” car if the car was “lawful in the possession of you or any resident relative.”  

The injured parties asserted that the policy did not define “possession” or “lawful,” and was, therefore, ambiguous such that the policy had to be construed in favor of the insured and/or the injured party.  

The trial court had found that the friend’s grabbing of the steering wheel from the passenger seat did not amount to a taking of lawful possession or control of the vehicle.  On appeal, the appellate court found no abuse of discretion in the trial court’s finding in this regard.  

The appellate court also noted that, even if the friend had been in “possession” of the vehicle when she grabbed the steering wheel, such possession would not have been “lawful.”  

In this regard, the court agreed with a decision from another state in which it was held that a passenger who grabbed a steering wheel was actually interfering with the vehicle’s operation and such action did not constitute “possession” of the vehicle.  

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


Source:  “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (July 2, 2018).

Pennsylvania Superior Court Applies Intricacies of Limited Immunity Provision of the Mental Health Procedures Act in a Med Mal Case

In the case of Dean v. Bowling Green-Brandywine, No. 963 MDA 2017 (Pa. Super. July 2, 2018 Gantman, P.J., Panella, J., and Dubow, J.)(Op. by Panella, J.), the Pennsylvania Superior Court addressed the issue of whether a trial court properly entered a nonsuit against the Plaintiff under an application of the limited immunity provision of the Mental Health Procedures Act (MHPA).

Ultimately, the Superior Court affirmed the entry of the nonsuit in favor of some Defendants but not others in the matter.

The court noted that the limited immunity provision of the Act is intended to limit the criminal and civil liability of those charged with treating the mentally ill.  Under the Act, those engaged in treating mentally ill individuals "under the act" cannot be held liable absent "willful misconduct or gross negligence."

The court generally noted that the Act applies to the "voluntary inpatient treatment of mentally ill persons."  Prior to this decision, the term "mentally ill persons" had not been defined by the Act or case law.

According to the Opinion, the case involved a twenty-three year old individual who voluntarily applied to a treatment facility to address his addiction to pain medications he had been taking as prescribed for injuries following an ATV accident.  Less than ten days after his admission, the individual was found unresponsive on the floor of his room in the treatment center.  He subsequently passed away.

Thereafter, a medical malpractice suit was filed against several Defendants, some of whom pled the limited immunity provision of the MHPA as a defense.  During the course of trial, the remaining Defendants requested, and were granted, permission to add that defense to their pleadings.

At the close of the Plaintiff's case, the trial court granted a nonsuit in favor of all of the Defendants, finding that the Plaintiff had failed to show evidence of willful misconduct or gross negligence on the part of the Defendants and that, as such, the Defendants were entitled to the protections of the limited immunity provision.

In its Opinion, the Superior Court affirmed that the limited immunity provision was an affirmative defense ("immunity from suit") that has to be pled as an affirmative defense in a defendant's pleadings.

The appellate court reviewed the entry of the nonsuit with regards to each specific Defendant, finding that some Defendants were indeed entitled to a nonsuit, and others were not.  A critical question in this case was whether the treatment of the decedent's addiction amounted to a treatment of a mental illness with respect to each particular Defendant.

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

I sent thanks to Attorney Cynthia L. Brennan of the Berwyn, PA law office of Post & Post for bringing this case to my attention.



Tuesday, July 3, 2018

Summary Judgment Granted in Fall From Ladder Products Liability Case


In the case of White v. The Home Depot, Inc., No. 5:17-cv-4174 (E.D. Pa. May 10, 2018 Leeson, Jr., J.), the court granted Defendants’ Motion for Summary Judgment in Plaintiff’s action for strict liability, negligence, and breach of warranty due to the Plaintiff’s fall off of a ladder while painting his bathroom. 

According to the Opinion, the Defendants contended that the Plaintiff tried to move the ladder while still standing on it.   It was the Plaintiff’s contrary assertion that he did not feel the ladder move before he fell and that he did not know what happened.  

The court noted that the Plaintiff did not allege that there was any mechanically wrong with the ladder, its structure or its design.  

As part of these proceedings, the Defendants moved to exclude the testimony of the Plaintiff’s experts opining that the warnings on the ladder were inadequate.  The court found that this expert testimony was inadmissible because it did not satisfy the reliability and fit requirements.   According to the Opinion, the Plaintiff’s expert did not inspect the ladder or the bathroom floor, did not conduct any witness interviews, and did not reconstruct the accident or even perform any test on the ladder.  

Accordingly, the court held that the Plaintiffs’ claims failed because no reasonable jury could conclude that the ladder was defective.   To the contrary, the court stated that the Defendants did warn of the dangers of the ladder slipping on the surface below and that the Plaintiff knew or that warning.  As the Plaintiff never testified as to any additional warnings he felt that he needed with respect to the ladder and otherwise failed to explain while the general warning not to set the ladder on a loose or slippery surface was inadequate, the court entered summary judgment.  

To review this decision, click this LINK.

Monday, July 2, 2018

Sample Post-Koken UIM Trial Jury Instructions From Judge James A. Gibbons of Lackawanna County

My associate attorney, Stephen T. Kopko, ran the defense at a straight Post-Koken UIM jury trial last week in the Lackawanna County County Court of Common Pleas in the case of Singer v. State Farm, No. 15-CV-2859.

Here is a LINK to a copy of the printout of the UIM jury instruction Judge James A. Gibbons presented to the jury over our objection on behalf of the defense.

Judge Gibbons noted that this jury instruction was based on the instruction that Judge Terrence R. Nealon utilized in the case of Moritz v. Horace Mann Ins. Co. which is written up HERE on Tort Talk.

Wednesday, June 27, 2018

Summary Judgment Granted in UIM Bad Faith Case

In the case of Shaw v. USAA Cas. Ins. Co., No. 3:17-947 (M.D. Pa. May 11, 2018 Mannion, J.), the court granted the carrier’s Motion for Partial Summary Judgment with respect to the Plaintiff’s bad faith count in a UIM case.   Overall, the court ruled that a reasonable jury could not conclude that the Defendant carrier acted in bad faith under the case presented.  

By way of background, the Plaintiff was injured as a pedestrian in a motor vehicle accident.   The Plaintiff settled her bodily injury claim against the third party tortfeasor for $50,000.00 out of the available $100,000.00 liability limits. Thereafter, she submitted a claim for UIM benefits with her own carrier.  

During its investigation, the Defendant carrier determined that the overall value of the Plaintiff’s liability claim against the tortfeasor did not exceed the $100,000.00 liability limits available to the tortfeasor.  

In the bad faith claim, the Plaintiff asserted that the Defendant did not fully investigate or revise its initial assessment despite the Plaintiff submitting additional medical records and expert reports.  

Judge Malachy E. Mannion
M.D.Pa.
After a review of the record before it, Judge Mannion found that the Plaintiff had not produced sufficient evidence to support the claims that the Defendant carrier had acted outrageously and in bad faith in its handling, investigation, and adjustment of the Plaintiff’s UIM claim.  

In his decision, Judge Mannion provides a thorough recitation of the post-Rancosky bad faith law in support of his decision.  

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

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