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.