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I welcome any opportunity to assist you in settling your cases through CUMMINS MEDIATION SERVICES.

In addition to my own personal experience of sitting through innumerable settlement conferences as a law clerk for Judge Harold A. Thomson, Jr. of Pike County at the beginning of my career, I have also participated in successful Mediations over the past 17 years as both a litigator and as a Mediator in the Federal Middle District Court Mediation Program.  I have additionally attended many continuing legal education courses in an effort to further hone my skills and tools related to fostering ongoing negotiations at Mediations.  I have continued to develop these skills at numerous successful Mediations scheduled 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.

Motion for Remittitur of Punitive Damages Granted

In the case of Jester v. Hutt, No. 1:15-CV-00205 (M.D. Pa. Aug. 29, 2018 Kane, J.), the court granted a Motion for Remittitur of Punitive Damages.  

According to the Opinion, the court found that an award of $90,000.00 for punitive damages in a defamation case was constitutionally excessive where the jury only awarded $1.00 in actual damages.  

The court also noted that the level of reprehensibility with regards to the Defendant was low under the facts presented.   The court also emphasized that there was no risk of physical injury or danger to the safety of others relative to the underlying event. 

The court cut the punitive damages down to $5,500.00.  

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

UPDATE:  The trial court's decision in this case was overturned by the Third Circuit Court of Appeals in a decision handed down by that Court on August 28, 2019.  Click HERE to view that decision.

Recoverability of Future Medical Expenses in an Auto Accident Case Addressed

A number of civil litigation trial issues were reviewed in the case of Farese v. Robinson, No. April Term 2015 1084 (C.P. Phila. Co. Sept. 6, 2018 Kennedy, J.), including the issue of how to handle a claim for future medical expenses in a motor vehicle accident matter.  

The case arose out a rear-end motor vehicle accident.   The case proceeded to trial and a jury entered a verdict in excess of $2.5 million dollars in favor of the Plaintiff.   The Defendants filed post-trial motions which brought about this Rule 1925 Opinion by the trial court judge.  

With respect to the Plaintiff’s claims for future medical expenses, defense asserted that a new trial on damages was necessary given that the Plaintiffs introduced evidence concerning future medical costs without reducing those costs in accordance with the cost containment provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), or Act 6.  

The trial court rejected the Defendant’s position as well as the defense’s reliance upon the case of Pittsburgh Neurosurgery Assoc’s v. Danner, 733 A.2d 1279 (Pa. Super. 1999), as the court found that that case was limited by the Superior Court to an application to past medical bills that had already been incurred by an injured party for treatment that had already been provided.  

Instead, the trial court relied upon the case of Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001).  Also, the trial court also noted that the medical bills in this case that were presented to the jury had apparently already been subjected to the cost containment provisions of the MVFRL.   

The trial court in this case of Farese noted that its Opinion was that future medical costs are not considered “payable” within the meaning of §1722 or §1797 of the MVFRL.    The court believed that to claim that bills for medical services not yet performed should be considered “capable of being paid” in this context, “creates an unpersuasive logical fallacy.”   The court noted that, to rule otherwise, would create confusion as any medical service not yet performed would be considered “payable.”  

This particular court believed that future medical costs can only exists as being “not payable” under §1797.  

Practically speaking, the trial court found that the Plaintiff’s expert life care planner had properly opined as to the future cost of medical care under the “usual and customary charge(s)” mandated by 75 Pa. C.S.A. §1797(a).   The expert offered his opinion at trial that life care planners base protections on future medical care upon the usual and customary costs going into future because it is too speculative to know what reimbursements will be from month-to-month.

In entering its ruling, the Farese court pointed to the Federal Middle District Court decision of Kansky v. Showman, No. 3:09-cv-1863, 2011 WL 1362245 (M.D. Pa. April 11, 2011 Munley), in which that Federal District Court held that future medical bills are not “payable” as future medical payments are not currently outstanding and able to be paid and given that Defendants cannot guarantee that any future medical expenses will in fact be paid.    That court ruled that the payment of future medical expenses is merely speculative as a carrier could become bankrupt or could deny future medical bills for a variety of reasons.  [However, neither the Farese court nor the Kansky court pointed out that whether a Plaintiff will actually undergo future medical treatment once they settle their case or secure a verdict is speculative as well].   

The Kansky court held that, because the insurance benefits are not necessarily due and owing at the time of a trial and given that nothing could compel a carrier to pay a lump sum for future medical expenses, a Plaintiff’s future medical bills cannot be considered to be “payable” under Act 6.  

The Farese court followed this reasoning in its own decision and denied the defense’s request for a new trial based upon the handling of the future medical expenses claim at trial.  

Here is a LINK to the "Future Medical Expenses" Label, which can always be freely access down the right hand column of the Tort Talk Blog at www.TortTalk.com to access blog posts on this particular troublesome and unsettled topic.

The Farese decision is also notable in that the trial court held that the expert testimony offered by the Plaintiff from a neuro-radiologist was not considered to be cumulative when compared to the other expert medical evidence offered by the Plaintiff.   The court felt that the expert’s expertise in the area of neuro-radiology allowed that doctor to provide a nuanced opinion of the injuries sustained by the Plaintiff that better explained the injuries to the jury in a manner different then that from the Plaintiff’s other medical experts.  

The Farese court also addressed the issue of Defendant’s Motion for Remittitur against the Plaintiff’s substantial verdict.   In this regard, the court provided a detailed analysis of the current state of Pennsylvania law in addressing claims that a jury’s verdict is allegedly excessive.  

In the end, this court found that the jury’s award for damages was not excessive and did not shock the judicial conscience.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (Oct. 16, 2018).   

A Primer on Joining and Serving Additional Defendants

Lackawanna County Courthouse

In the medical malpractice case of Mayer v. Delserra, No. 17–CV-03968 (C.P. Lacka.  Co. Oct. 5, 2018 Nealon, J.), the trial court in Lackawanna County addressed objections to a Defendant’s service of a third party Complaint upon an Additional Defendant. 

More specifically, the Additional Defendant who was served with the Joinder Complaint filed Preliminary Objections challenging the service of original process of the Joinder Complaint as improper after the original Defendant-hospital attempted to serve that Additional Defendant via certified mail at an incorrect office address.  

The joined Additional Defendant also asserted that the Joinder Complaint should be dismissed since the statute of limitations had expired.  

The non-moving original Defendant-hospital argued in response that the service of process by certified mail was proper and that the Additional Defendant had waived the right to object to the allegedly defective service by virtue of the Additional Defendant’s attorney’s attendance at the two (2) depositions that have been conducted in the case to date.  

After reviewing the Pennsylvania Rules of Civil Procedure pertaining to the service of a Joinder Complaint upon a Pennsylvania Additional Defendant, the court noted that these Rules required that such service be effectuated by the Sheriff hand-delivering the original process to the Additional Defendant or an appropriate person at that Defendant’s residence or business.  An exception to those Rules was that service could be completed by the Defendant's attorney agreeing to accept service.

Here, the court set aside the improper service in this matter and directed the Defendant-hospital to reinstate the Joinder Complaint and serve the same properly.  

In so ruling, Judge Nealon found that the attendance of the Additional Defendant’s attorney at previously scheduled depositions, which depositions occurred after the Preliminary Objections at issue had already been filed, did not constitute such action on the merits of the case by that Additional Defendant so as to waive the right to object to defective service.  Rather, the court noted that such attendance at the deposition instead served to cure any prejudice that may have resulted from the improper service and the Additional Defendant’s belated entry into the case.  

The court further ruled that, since the applicable statute of limitations period relative to the Defendant-hospital’s contribution and indemnification claims had not yet begun to run, the proper remedy for the defective service was to simply set it aside and allow the joining party to attempt to properly serve that Additional Defendant.

Anyone wishing to review this case may click HERE.

Superior Court Rules on Scope of Obligation of First Party Carriers to Pay Chiropractors for Treatment Rendered by Staff

In the recent Superior Court decision in the case of State Farm Mut. Auto. Ins. Co. v. Cavoto, 2018 Pa. Super. 285 (Pa. Super. Oct. 17, 2018 Gantman, P.J., Shogan, J., and Blatt, J.) (Op. by Shogan, J.), the court addressed an appeal from a declaratory action filed by State Farm seeking a judicial declaration that it was not obligated to pay the chiropractor for treatments and procedures delegated to, and perform by, chiropractic support personnel without special licenses or certifications.  

The Superior Court held that the chiropractor cannot be expected to be paid by a first party carrier for such services performed by unlicensed support personnel.  

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

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

LACKAWANNA PRO BONO GALA SET FOR NEXT THURSDAY NOVEMBER 1, 2018

Summary Judgment Granted in Slip on Grape Case

In the case of Pace v. Wal-Mart Stores, No. 17-1829 (E.D. Pa. Sept. 18, 2018 Baylson, J.), the court granted summary judgment to the Defendant was unable to show that the Defendant had actual or constructive notice of a hazardous condition in an alleged slip and fall on grapes or grape juice.  

Notably, where the Defendant produced an affidavit confirming that there was no video of the location where the Plaintiff fell and that no videos had been destroyed, the Plaintiff’s request for an inference of spoliation of evidence was denied.  

A nice overview of the current status of Pennsylvania premises liability law can be seen in this Opinion.

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

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

Pennsylvania Supreme Court Rules in Favor of Plaintiffs on the Discovery Rule as Applied to the Statute of Limitations

In the case of Nicolaou v. Martin, No. 44 MAP 201 (Pa. Oct. 17, 2018)(Op. by Baer, J.), the Pennsylvania Supreme Court handed down its latest decision on the application of the Discovery Rule relative to the statute of limitations in a civil litigation matter.

According to the Opinion, sometime in 2001, the Plaintiff was bitten by a tick on her left ankle, after which she developed symptoms. 

This case presented the issue of whether the Plaintiff satisfied the Discovery Rule so as to toll the running of the statute of limitations on their medical malpractice action filed against the Defendant health care providers for failing to diagnose and treat her Lyme's disease. 

The Pennsylvania Supreme Court noted that the Discovery Rule tolls the statute of limitations where a plaintiff is reasonably unaware that she or he has been injured and that her or his injury was caused by the negligence of another.  In this regard, a reasonable diligence standard is applied against plaintiffs.  The Court also noted that the question as to whether the Discovery Rule serves to save a plaintiff's case is generally one for a jury to decide. 

In this matter, the trial court and the Superior Court had both ruled that the Defendants were entitled to summary judgment, holding that the Discovery Rule did not toll the statute of limitations because, as a matter of law, appellants failed to establish that they pursued their action with reasonable diligence. 

The Pennsylvania Supreme Court reversed and held that the determination of whether appellants acted with due diligence under the circumstances presented in this matter was one of fact for a jury to decide.  As such, the entry of summary judgment was overturned and the case was remanded for further proceedings.

Anyone wishing to review this case may click this LINK.

Case Dismissed for Failing to Substitute Estate for Deceased Defendant and For Service of Process Issues

In a recent detailed Order issued in the case of Byrne v. Quinn, No. S-1140-2015 (C.P. Schuyl. Co. Oct. 10, 2018 Goodman, J), Judge James P. Goodman of the Schuylkill County Court of Common Pleas, granted a Defendant’s Preliminary Objections to the Plaintiff’s Complaint.  

The court primarily based its decision to dismiss the Complaint on the fact that both parties acknowledged that one of the Defendants had passed away previously and that the Plaintiff was aware of this fact at the time she filed the Complaint but did not seek to substitute a personal representative/estate in the place of the deceased Defendant.  As such, the court held that it lacked subject matter jurisdiction over that particular Defendant.  

The court went on to address the other Defendant’s Preliminary Objections which were filed on the basis that the Complaint was not served prior to the expiration of the statute of limitations.   The court reviewed the law of Lamp v. Hayman, 366 A.2d 882 (Pa. 1976) and its progeny to conclude that the Plaintiff failed to comply with the requirements of Pennsylvania law to undertake a good faith effort to complete service of original process.  

As such, the case was dismissed with prejudice.  

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

I thank the prevailing defense counsel, Stephen T. Kopko of my office for bringing this decision to my attention.  

Lackawanna County Summary Judgment Motion on Hills and Ridges Doctrine Denied

In the recent hills and ridges decision in the case of Evans v. Simrell, No. 14-CV-2483 (C.P. Lacka.  Co. Oct. 4, 2018 Nealon, J.), the court denied the Defendant’s Motion for Summary Judgment after finding that genuine issues of material fact existed to be determined by a jury.  

According to the Opinion, the Plaintiff alleged that he fell on ice that was in front of the Defendant’s home on the sidewalk.   The Defendants filed a Motion for Summary Judgment asserting that the Plaintiffs could not sustain his burden of proving that he slipped and fell on hills and ridges of ice situated on the sidewalk.

According to the Opinion, the Plaintiff was walking down the sidewalk which was shoveled and free of any ice near the Defendant’s premises.  However, as soon as the Plaintiff’s stepped on the sidewalk in front of the Defendant’s property, he slipped and fell on ice.    The Plaintiff telephoned his mother who came to the scene and likewise observed that the nearby sidewalks were clear and free of snow or ice.   The mother testified that, as soon as she reached the Defendant’s sidewalk, she started to slide on the ice and had to grab the hedges to prevent herself from falling to the ground.  

The Plaintiff’s mother called 911 to request an ambulance.   According to the information provided to the court, when the paramedics arrived, one of the paramedics also slid and fell on the subject sidewalk as well as the paramedics were also slipping on the ice.  

In opposing the summary judgment motion, the Plaintiffs asserted that there was a genuine issue of material fact as to whether the Plaintiff was caused to fall on a localized patch of ice as opposed to as a result of generally slippery conditions existing in the area.  

In this regard, the court noted that there were triable issues of fact as to whether general slippery conditions existed throughout the community. 

More specifically, both the Plaintiff and his mother testified that other areas of sidewalk near the Defendant’s property were shoveled and free of snow and ice.   According to the record, one of the responding paramedics also noted that there was no ice present on the abutting road and adjacent grass, and that he only observed ice on the Defendant’s sidewalk.  

Judge Nealon ruled that it was within the sole province of the jury to resolve this conflicting testimony and to determine the weight, if any, to be accorded to these varying accounts.  

Given these issues of fact, the court denied the Defendant’s Motion for Summary Judgment based upon the hills and ridges doctrine.

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

Do you need help bringing your slip and fall case to a close?  Please contact me to discuss Cummins Mediation Services and to schedule a private mediation.  Low rates and proven success.  Please call 570-346-0745 to schedule a Mediation.

Licensee vs. Invitee Status in a Slip and Fall Case

In its recent decision in the case of Hackett v. Indian King Residents Ass’n., No. 3600 EDA 2017 (Pa. Super. Aug. 29, 2018 Shogan, J., Gantman, J., and Platt, J.), the court affirmed the denial of a Plaintiff’s post-trial motions after a defense verdict in a slip or trip and fall case.   

In this matter, the Plaintiff alleges she tripped and fell in a common area of a community.   One of the main issues in this case was whether the Plaintiff should be deemed to be a licensee or an invitee.

The Plaintiff asserted that, since she had paid common area maintenance fees to the residents’ association, she should be considered to be a business invitee.

The Superior Court disagreed and found that the mere paying of common area maintenance fees did not create invitee status under Pennsylvania law.   Rather, the Plaintiff was deemed to be licensee since, as a resident of the community, she used the common areas by permission, and not by the Defendant’s invitation.  

The court also noted that an invitation must be more than mere permission to access common areas in order to make one a business invitee in this context.  

Also of note in this decision was the court’s ruling that the Condominium Act does not apply to homeowners’ associations.

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

ARTICLE: The Pendulum Shifts With Recent Pa. Supreme Court Decisions

What follows is an article of mine that recently appeared in the October 16, 2016 edition of the Pennsylvania Law Weekly and which is republished here with permission:

The Pendulum Shifts With Recent Pa. Supreme Court Decisions

By Daniel E. Cummins | October 16, 2018                      

   

Daniel E. Cummins.

Recent Pennsylvania Supreme Court decisions provide evidence that the pendulum is shifting toward a more liberal, plaintiff-oriented view that was anticipated with the still-recent election of additional justices to the court to join those other justices on the court of the same bent.

 This movement of the pendulum is perhaps most evident in two cases in which the court overturned years of jurisprudence and expanded the potential liability of governmental entities in personal injury matters.

A New Guide to Guide Rail Liability

In the case of Cagey v. PennDOT, No. 36 WAP 2016 (Pa. Feb. 21, 2018) (Maj. Op. by Donohue, J.)(Saylor, C.J., Concurring) (Wecht, J., Concurring), handed down by the Pennsylvania Supreme Court, the court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. PennDOT, 946 A.2d 1123 (Pa. Cmwlth. 2006), and its progeny, and held that PennDOT is only immune when it fails to install a guide rail.

The Pennsylvania Supreme Court otherwise held in the Cagey case that when PennDOT has previously installed a guide rail, sovereign immunity is waived if the agency’s negligent installation and design created a dangerous condition that causes or contributes to an accident.
 Although there are two concurring opinions in the Cagey decision, it appears that all of the justices agreed on the ultimate holding of the case.

In the Cagey case, the plaintiffs alleged personal injuries against PennDOT after they lost control of their vehicle under wintry conditions and crashed into a PennDOT erected guide rail that penetrated the side of the vehicle during the course of the accident. The plaintiffs alleged liability on the part of PennDOT with respect to the placement of the guide rail and the fact that the guide rail was allegedly not crashworthy.

With this reversal of many years of legal authority that protected PennDOT from liability pertaining to guide rail claims, it is expected that there will be a dramatic increase in litigation for the government in defending accidents that involved contact by a vehicle with a guide rail.

In another decision from earlier this year, the Pennsylvania Supreme Court kept the pendulum shifting with another plaintiff-friendly decision.

30 Years of Precedent Obliterated

In a monumental reversal, the Pennsylvania Supreme Court overturned 30 years of precedent by holding that the involuntary movement of a vehicle can constitute the operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.) (Justices Todd, Dougherty, and Wecht joined in the majority Opinion) (Baer, J., concurring) (Saylor, dissenting, J.), the Pennsylvania Supreme Court held that the Commonwealth Court, which had relied upon that 30 years of precedent, erred in its application of the vehicle liability exception to governmental immunity.

In Balentine, the plaintiff’s decedent was a contractor hired to rehabilitate a section of a water distribution system at a location. At the time of the accident, the decedent was working just off to the side of a two-lane road. The decedent was inside a ditch located on the grassy strip between the sidewalk and the curb when an inspector drove up to the work site and parked his vehicle, with the engine running, approximately 10 to 15 feet from the ditch.

A few moments later, a vehicle operated by a third person struck the inspector’s parked vehicle, causing it to be propelled forward. The parked vehicle struck the decedent as he stood in the ditch, drug him out and pinned him under the vehicle when it came to a stop. The decedent sustained fatal injuries.

The decedent’s estate filed a lawsuit against various defendants. Certain governmental defendants obtained summary judgment from the lower court under an argument that neither the motor vehicle exception nor the traffic control device exception to governmental immunity set forth in the Political Subdivision Tort Claims Act applied. On appeal, a divided panel of the Commonwealth Court affirmed the trial court’s decision.

Relying upon the fact that the vehicle at issue was parked at the time of the accident, the majority in the Commonwealth Court considered itself “constrained” by the then-existing precedent to conclude as a matter of law that that vehicle was no longer in “operation” when the accident occurred. As such, the Commonwealth Court concluded that the involuntary movement of that vehicle can constitute an operation of that vehicle for purposes of the motor vehicle exceptions to governmental immunity.

Further up on the appellate ladder, the majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply.

As such, the Supreme Court reversed the decisions of the lower courts and remanded the case back to the trial court. As stated, in writing this opinion, the court blew up 30 years of precedent on the issue with keystrokes on a computer.

The Pennsylvania Supreme Court in Balentine confirmed that the word “operation” was not defined in the Tort Claims Act. As such, the Supreme Court turned to Black’s Law Dictionary and prior Pennsylvania case law addressing the proper definition of that term in this context. The majority emphasized that the vehicle liability exception to governmental immunity only referred to operation, and not to motion when describing the parameters of this exception.

With its ruling, the Pennsylvania Supreme Court overturned the long-standing precedent on this particular issue, including numerous prior decisions where the immunity was held to apply in accidents involving vehicles that are stopped or parked.  That is no longer the law under this decision.

The Pennsylvania Supreme Court ruled instead that “[w]here a government vehicle obstructs a roadway, in whole or in part, we can assume, absent evidence to the contrary, that a government agent operated the vehicle to arrive at that position.”

More specifically with respect to the Balentine case, the court found that, if the plaintiff established that the decedent’s injury was caused by an illegally parked government vehicle, but the movement of the vehicle itself did not cause the injury, the government could not avoid liability simply because the government vehicle was not “in motion” at the time of the injury.

The Pennsylvania Supreme Court adopted the definition of an operation of a vehicle that was previously enunciated by Justice Sandra Newman in her Dissenting Opinion in the prior case of Warrick v. Pro Cor Ambulance, 739 A.2d 127, 129 (Pa. 1999) (Newman, J. dissenting).

Justice Newman recognized in that dissenting opinion that the operation of a vehicle “reflects a continuum of activity,” which entails “a series of decisions and actions, taken together, which transport the individual from one place to another. The decisions of where and whether to park, where and whether to turn, whether to engage brake lights, whether to use appropriate signals, whether to turn lights on or off, and the like, are all part of the ‘operation’ of a vehicle.”

The Pennsylvania Supreme Court in Balentine adopted Justice Newman’s definition, and found that definition to represent a reasonable standard that comports with the intent of the legislature behind the Tort Claims Act and avoids what the current majority of Pennsylvania Supreme Court Justices on this issue deemed to be illogical results over the past 30 years of precedent that flowed from the prior emphasis on the need for motion in the previous cases.

What Else May be Taken Out?

The current members of the Pennsylvania Supreme Court have made it clear in no uncertain terms that they are not afraid to reverse long-standing precedent where they deem that to be warranted under the current times.

It remains to be seen how this court may address other important areas of civil litigation law that work their way up the appellate ladder to its courtroom for review. With continually emerging issues in post-Koken auto accident litigation and the continuing debate over proper standards for Pennsylvania products liability litigation, the Pennsylvania Supreme Court’s review of its cases is sure to remain interesting to both the bench and the bar.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.

[It is noted that a typo that appeared in the print publication has been corrected here].
 

Assumption of Risk Doctrine Supports Summary Judgment in Dirt Bike Accident case

In the case of Hawkins v. Switchback Mx., No. 2:16-CV-1719 (W.D. Pa. Sept. 12, 2018 Connor, J.), the court granted summary judgment in favor of a Defendant after ruling, by statute, that an operator of an off-road vehicle riding area has no duty to protect the riders from the well-known risks inherent to the activity, such as collisions and falls.  

According to the Opinion, the Plaintiff injured himself when he made an unsuccessful jump on his dirt bike on an indoor track.  The Plaintiff was noted to have a decade of experience.

This court also affirmed the continuing validity of the assumption of risk doctrine by finding that the Plaintiff’s participation in this sport constituted an assumption of the risks involved as a matter of law. 

The court noted that the Plaintiff in this matter was experienced in the sport of dirt bike racing and was well aware that such activity had a risk of serious injury or death.  The court additionally reaffirmed the rule that a minor is capable of assuming the risk of a dangerous activity in certain circumstances.

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Waiver Form Found to Support Summary Judgment in Off-Road Riding Case

In the case of Scott-Moncieff v. Lost Trails, LLC, 3:16-CV-1105 (M.D. Pa. Aug. 29, 2018 Mehalchick, Mag. J.), Federal Middle District Magistrate Judge Karoline Mehalchick granted summary judgment in favor of the Defendant on the basis of a Release signed by the Plaintiff prior to engaging in off-road riding activities.  

The court found that the Plaintiff’s Release or Waiver, which was signed before engaging in the off-road riding, was valid and served to preclude the Plaintiff’s cause of action.  

The court found that, since the activities involved were purely private, the Release did not contravene any public policy interest.   The court additionally noted that Releases involved in voluntary sporting an recreational activities are not contracts of adhesion.  

 The court additionally noted that, even though the Plaintiff did not sign a waiver on the date of the injury, the Plaintiff had previously signed a waiver while using the same facility, and that waiver was clearly and unequivocally binding for “all time thereafter.”  

Judge Karoline Mehalchick
U.S. M.D.Pa. M.J.

Judge Mehalchick additionally reaffirmed the general rule of law that a person signing a contract has a duty to  read it and that, absent fraud, failure to read a signed contract is no defense.  

The court additionally found that conspicuousness was not a requirement for the validity of the document that the Plaintiff was actually required to sign.   Judge Mehalchick found that, in any event, the language at issue in the Release was indeed conspicuous in the court’s determination.  

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Western Pennsylvania Federal District Court Reaffirms Several Products Liability Principles of Law

In the Western District Federal Court case of Chandeler v. L’Oreal USA, Inc., 2:17-CV-01141 (W.D. Pa. Sept. 14, 2018 Fisher, J.), the court reaffirmed several important principles of products liability law.   

In the end, the court granted summary judgment in favor of the Defendant on the basic rationale that the Plaintiff had failed to prove that the product was defective, which is fatal to claims for strict liability, negligence, breach of warranty, and violations of the Unfair Trade Practices & Consumer Protection Law.  

 The court additionally noted that the Defendant’s warnings on the product warned about the type of injury the Plaintiff suffered. The court also stated that the record before it established that the Plaintiff failed to read the warnings.   Moreover, to the extent that the Plaintiff may have allegedly read the warnings, the evidence was that she ignored the warnings.  

According to the Opinion, this case involved the Plaintiff's use of an at-home hair relaxer product manufactured by the defendant.

Among the notable rulings of the court were the following:

-It is the judge who determines whether warnings are adequate and whether the product is defective for an inadequate warning.

-Negligence and strict liability claims overlap in warning claims.

-A manufacturing defect can be established directly or by circumstantial evidence.

-Circumstantial proof of a product malfunction must rule out any abnormal use of secondary causes of the injury.

-Implied warranty claims and manufacturing defect claims are essentially the same.

-To establish an implied warranty, the Plaintiff must prove a product defect.

-Where a Plaintiff does not retain any of the product at issue, that Plaintiff cannot prove a manufacturing defect directly and must, instead, attempt to rely upon circumstantial
evidence.

-A failure of a Plaintiff to follow warnings is fatal to a malfunction theory case.

-Claims for misrepresentation and the UPTCPL claims can fail for lack of justifiable reliance by the Plaintiff, i.e., these claims may fail where a Plaintiff does not read or rely upon any alleged misrepresentations with respect to the product.

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention and providing his above analysis of the same.
 

Pennsylvania Supreme Court to Address Propriety of Auto Policies Allowing for Multiple IMEs of Insureds

According to an October 18, 2018 article in the Pennsylvania Law Weekly by Zack Needles entitled "Pa. Supreme Court Takes 3rd Circ.'s Question on Auto Insurers' Medical Exam Policies," the Pennsylvania Supreme Court has agreed to review the question certified over by the Third Circuit Court of Appeals of whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing before they can receive benefits.

The article notes that the Pennsylvania Supreme Court issued identical October 15, 2018 Orders in both Sayles v. Allstate Insurance and Scott v. Travelers Commercial Insurance, granting the Third Circuit’s petition for certification of a question of law. 

The certified question is, as follows: “Whether, under Pennsylvania law, a contractual provision in a motor vehicle insurance policy that requires an insured to submit to an independent medical examination by a physician selected by the insurer, when and as often as the insurer may reasonably require, as a condition precedent to the payment of first-party medical benefits under that policy, conflicts with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1796(a), and is therefore void as against public policy.”

The Order in Sayles can be reviewed HERE.

The Order in Scott can be reviewed HERE.

Commentary:  It appears that at least one of the arguments by the Plaintiffs in these cases is that an automobile insurance carrier should not be able to send its insured to an IME or multiple IMEs as a matter of course as allowed by the policy language where the Pennsylvania Rules of Civil Procedure only allow for IMEs when good cause is shown.  See Pa.R.C.P. 4010.

In reality and as a practical matter, it is a rare occurrence that an auto insurance carrier will subject its insureds to multiple IMEs.  In some cases, where a Plaintiff has separate types of injuries for which he or she has treated with separate specialists, then a carrier may request separate IMEs with doctors in those same types of specialties.  But carriers are not in the habit of sending its insureds to multiple IMEs as a matter of course.

Therefore, it is curious that the Pennsylvania Supreme Court would accept this issue for review where a decision on this question presented is not likely to have any great effect as a practical matter.

Pennsylvania Supreme Court Rejects Bid by Plaintiffs to Overturn Statutory Caps on Damages Against Governmental Entities

According to an October 16, 2018 Pennsylvania Law Weekly article by Max Mitchell entitled "Pa. Supreme Court Rejects New Bid to Lift Statutory Damages Cap, the Pennsylvania Supreme Court recently rejected efforts by the plaintiffs to overturn the $250,000 statutory damages cap that protects governmental state agencies.

 

On October 15, 2018, the Pennsylvania Supreme Court issued one-paged per curiam Orders in Freilich v. SEPTA and Schaller v. New Flyer of America denying requests by plaintiffs to have the Court review the issue under its King's Bench jurisdiction.

The one line Freilich Order can be viewed HERE.  The one line Schaller Order can be viewed HERE.

Discoverability of Claims File Info in First Party Wage Loss Litigation

In the case of Neidich v. Progressive Advanced Ins. Co., No. 17-5375 (E.D. Pa. Aug. 22, 2018 Padova, J.), the court granted, in part, a Plaintiff’s Motion to Compel production of certain entries from the Defendant’s carrier’s claim file that the Defendant had maintained were protected by the attorney work product doctrine.    This case arose out of an automobile accident claim pertaining to a first party wage loss dispute.  

During the course of discovery, the Defendant carrier refused to produce certain materials from its insurance claims file, asserting that the materials were protected by the attorney work product doctrine.   In particular, at issue in this case were the mental impressions and opinions of the claims representative and the carrier’s reserve information.   The court was provided redacted and unredacted copies of the claims file, along with a privilege log, for an in-camera review of the file.  

The court reviewed the parameters of the work product doctrine as set forth under F. R.C.P. 26(b)(3).   Noted that the “temporal trigger for work product protection in this context is the ‘point in its investigation [when] an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation’.”   See Op. at 3 [citations omitted].  

The court more specifically stated that the party asserting work product protection must demonstrate that it subjectively anticipated litigation, and that the anticipation was objectively reasonable. Id. [citations omitted].  

One issue in this case was point at which it could be considered that the carrier reasonably anticipated litigation.   

In this matter, the carrier stated that it reasonably anticipated litigation when Plaintiff’s counsel contacted the carrier seeking “to discuss and avoid litigation.”   The carrier asserted that the disputed entries in the claims file made after that event should be protected by the work product privilege.  

However, the court in this matter stated that, a lawyer’s mere suggestion of a lawsuit is not enough to make a carrier reasonably anticipate litigation when the carrier’s evaluation of the claims is ongoing.   The court pointed to a case indicating that an insured’s attorney’s threat to file suit did not serve as the trigger for the work product doctrine.  As such, this argument by the carrier was rejected by this court.  

The carrier also argued, in the alternative, that the court should, at a minimum, extend a work product protection to the carrier’s reserve information.   The court in this matter rejected the carrier’s contention that reserves are to be treated as work product on a per se basis.   Accordingly, the court rejected the carrier’s argument that insurance reserves are always prepared in anticipation of litigation and are therefore always  protected as work product.

In this matter, the court ultimately concluded that the carrier had failed to provide relative factual support for its position that the disputed materials concerning reserve information in this particular case were prepared in anticipation of litigation.  As such, the Plaintiff’s Motion to Compel was granted. 

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

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

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors

In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.

Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA

BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION SERVICES

Please call 570-346-0745 or email me at dancummins@comcast.net to schedule your Mediation.

HOPE TO SEE YOU THERE: Presenting Forrest Gump Themed Civil Litigation Update Seminar at Nov. 8, 2018 Luzerne Co. Bench Bar Conference

On November 8, 2018, Daniel E. Cummins of the Scranton law firm of Foley, Comerford & Cummins along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price,  will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.

TORT TALK TIP

HANDLE YOUR MAIL THE DAY IT COMES IN

One of the best ways to keep your files moving is to answer the regular mail that comes in on the day that it comes in -- as you open your mail, dictate a letter or email in response to the mailing or to the client with a status update.

Give any mailings that provide notice of appointments for your calendar to your assistant with the rule being that the assistant must mark it down on the calendar the same day as opposed to being able to put it aside to do later.

When you run through your mail right away, it's done.  And the case is one step, however small, moved forward and closer to its eventual conclusion, whatever that may be.

As Ben Franklin once said, "Don't put off until tomorrow what you can do today."

Punitive Damages Claims Allowed Against Tractor Trailer Driver Allegedly Using Cell Phone in White Out Conditions

In the case of Ehler v. Old Dominion Freight Line, No. 2018 -00307 (C.P. Lebanon Co. Aug. 30, 2018 Charles, J.), the court denied Preliminary Objections filed by a trucking Defendant against claims of recklessness and punitive damages based upon allegations that the commercial truck driver was allegedly using a cell phone at the time of the accident. 

This matter arose out of a multi-vehicle accident involving 64 vehicles under wintry conditions on a highway.  

After reviewing the general law pertaining to punitive damages, the court also pointed to Pennsylvania’s Distracted Driving Law, 75 Pa. C.S.A. §1622, which prohibited commercial drivers from utilizing hand held mobile devices while driving, except in emergency situations.  

The court otherwise noted that a review of case law from Pennsylvania and other jurisdiction did not provide a clear consensus as to whether the use of a cell phone while driving, in and of itself, constituted recklessness.

However, the court noted that, under the facts before it, driving a commercial truck while using a cell phone was a violation of state law.  

The court additionally noted that the weather involved white out conditions at the time of the accident.   The court included this factor in determining that the Preliminary Objections should be denied on claims of recklessness in terms of using a cell phone while driving a commercial vehicle in white out conditions.  

Although the court denied the Preliminary Objections, it noted that the issue could be subject to further review once discovery was completed on issues presented.  

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

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

Assumption of Risk Doctrine Valid and Can Support Entry of Summary Judgment (But Summary Judgment Denied Here)

In his recent decision in the case of Smerdon v. GEICO, No. 4:16-cv-02122 (M.D. Pa. Sept. 21, 2018 Brann, J.), the court granted in part and denied in part a Motion for Summary Judgment filed by Defendant GEICO, and granted a Motion for Partial Summary Judgment by the Plaintiffs in a Post-Koken uninsured motorist matter.

According to the Opinion, the Plaintiff was shopping at a Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash from a customer service employee.   The Plaintiff and several others chased the robber out into the parking lot and towards the robber’s car, which the robber had left running.  

While these individuals scuffled with the robber, the Plaintiff entered the passenger side of the vehicle and attempted to remove the keys from the ignition.  The robber put the vehicle in drive, stepped on the gas, and the Plaintiff was injured by the vehicle as a result.  

As the robber had no car insurance, the Plaintiff pursued an uninsured motorist claim against GEICO.  

Under the GEICO uninsured motorist provisions of the policy, it was provided that the Plaintiff must prove that she was “legally entitled to recover” from the operator of an uninsured motor vehicle in order to recover UM benefits.   

The Plaintiff filed a Complaint against GEICO alleging breach of contract and bad faith.  Under the breach of contract claim, the Plaintiff sought a declaratory judgment requiring GEICO to cover her for uninsured motorist coverage.  The Plaintiff filed a bad faith count seeking damages, arguing that GEICO’s handling of her claim amounted to bad faith under 42 Pa. C.S.A. §8371.   

A main issue before the court was whether the assumption of risk doctrine operated as a total bar to the Plaintiff’s recovery such that she was not "legally entitled to recover" against the uninsured operator of the vehicle that injured her.  

Judge Matthew W. Brann
M.D. Pa.

In his Opinion, Judge Brann reaffirmed the continuing validity of the assumption of risk defense under Pennsylvania law.   The court noted that, “[a]lthough disfavored and narrowly applied, assumption of the risk remains a viable affirmative defense under Pennsylvania law.”   See Op. at p. 7 [citations omitted].

Notably, the court additionally confirmed that summary judgment can be granted on the assumption of risk doctrine as a matter of law.   Id.  

In this regard, Judge Brann stated that, “to grant summary judgment on assumption of the risk as a matter of law, the court must – conclusively and beyond question – find that the Plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk.”  Id.  citing with “See, e.g.” signal, Zeidman v. Fisher, 980 A.2d 637, 641, Pa. Super. 2009).

Here, the court denied GEICO’s motion and granted the Plaintiff’s motion on the assumption of risk issue.   In this regard, Judge Brann found that there were no facts that demonstrated that the Plaintiff was aware of the particular danger from which she was ultimately injured.  

More specifically, there were no facts to establish that the Plaintiff was specifically aware of the risks that the robber would run her over with his vehicle or otherwise cause her to fall down and strike her head on the pavement.   

The Court noted that awareness of a general risk of harm does not amount to an awareness of a specific risk as required by the assumption of risk doctrine.   

The court also held that, under the assumption of risk doctrine, a court should look at what a Plaintiff actually knew, appreciated, and assumed in terms of the risks, rather than what a Plaintiff should have known under the circumstances.   Here, the court found that there were no facts to demonstrate that the Plaintiff was subjectively aware of the danger that would eventually befall her.  

Judge Brann also found that there were no circumstances where the risk of harm was so obvious with this case in that the Plaintiff implied relieved the robber from exercising due care for the Plaintiff’s safety.   

Accordingly, based upon the above factors, the court concluded that the assumption of risk doctrine did not serve to bar the Plaintiff’s claims.  

 

The court also added that, to the extent that GEICO questions the reasonableness of the Plaintiff’s actions at trial, that is an inquiry that should be resolved through comparative negligence principles and not assumption of the risk principles.  The court noted that whether the Plaintiff acted reasonably under the circumstances remains an issue for the jury to decide.   

On the separate bad faith claim, GEICO asserted that it did not act in bad faith because it had a reasonable basis to assert the assumption of the risk doctrine as an affirmative defense and given that GEICO did not unreasonably delay the matter in evaluating the case presented.  

After reviewing the law of bad faith under §8371, Judge Brann held that the Plaintiff cannot sustain her burden of proof on the bad faith claim.   The court found that GEICO had a reasonable basis to question coverage because the assumption of risk doctrine remains a valid defense under Pennsylvania law.   

The Court found that the fact that GEICO ultimately erroneously relied upon that doctrine in this case, did not advance the Plaintiff’s bad faith claim because the presence or absence of bad faith does not turn on the legal correctness of the basis for a carrier’s denial of an insured’s claim.   

The court additionally noted that, even if it was assumed that GEICO lacked a reasonable basis to rely upon the assumption of risk doctrine as an affirmative defense, the Plaintiff still failed to present clear and convincing evidence that GEICO knew or recklessly disregarded that lack of a reasonable basis as required by bad faith liability.   

Judge Brann reiterated that, under the bad faith statute, the Plaintiff’s burden of proof is “substantial: ‘Bad faith must be proven by clear and convincing evidence and not merely insinuated.  This heightened standard requires evidence so clear, direct, weighty, and convincing as to enable a clear conviction, without hesitation, about whether or not the Defendants acted in bad faith.’”   [citations omitted].  

The court additionally found that the Plaintiff could not show that GEICO unreasonably delayed in the handling of her claim as the parties communicated with each other over several months in an effort to resolve the case.   Judge Brann also noted that, by the time the Plaintiff filed her Complaint, she had still not produced certain documentation, including the police report, requested by the carrier.   As such, the court found that any delay incurred in GEICO’s resolution of Plaintiff’s claims cannot be construed as unreasonable.  

In the end, the court noted that, because no reasonable jury could find in the Plaintiff’s favor, GEICO’s Motion for Summary Judgment on the bad faith claim was granted. 

 

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

Punitive Damages Claim Allowed to Proceed in Legal Malpractice Action

 

In the legal malpractice case of Perez v. Mathis, et.al., No. 1769 - CV - 2018 (C.P. Monroe Co. Sept. 6, 2018 Williamson, J.), the court addressed an issue of first impression in Pennsylvania with regards to whether a claim for punitive damages should be allowed to proceed in these types of actions.  

The court noted that there was a considerable split of authority on how punitive damages are treated for purposes of professional negligence actions when reviewing cases from around the United States.  

The court noted that several states hold that punitive damages are meant to be a deterrent and a punishment for wrongdoing, which cannot be accomplished when they are assessed against anyone other than the original wrongdoer.  

Other courts emphasize the need to place the innocent client in the same position as he would have been absent the attorney’s negligence.   

In the end, the court allowed the Plaintiff to proceed on the claim for the lost punitive damages in the underlying bad faith claim as compensable damages in this legal malpractice suit.  The court ruled in this fashion as the Plaintiff was successful in the underlying lawsuit with substitute counsel and may have recovered punitive damages from the bad faith claim in that suit but for the original attorney’s alleged negligence in withdrawing the bad faith claim.  

More specifically, the Plaintiff had retained his original attorneys to pursue a lawsuit against Liberty Mutual Insurance Company.   The Plaintiff alleged that, over his objection, his original attorneys agreed to enter a stipulation to dismiss portions of the Plaintiff’s federal Complaint, including the claim for bad faith.    The Plaintiff alleged that the attorneys did so without his knowledge and indirect opposition to his expressed wishes. 

The Plaintiff eventually hired substitute counsel and ultimately secured a judgment against the insurance carrier on the remaining claims.  

In this follow-up legal malpractice case, the Plaintiff was additionally allowed to proceed on a  specific claim for punitive damages against the Defendant law firm.  The court denied the Preliminary Objections against the claim for punitive damages. 

The court found that punitive damages in the legal malpractice action were potentially warranted where the Plaintiff asserted that the attorney recklessly went against his wishes in the underlying action.  The court noted that a jury could potentially find that such acts or omissions by the Defendant law firm were outrageous.  As such, that claim was allowed to proceed.

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

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

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

Motion to Dismiss Overseas Company Granted on Jurisdictional Grounds

In the case of Pearce v. Mizuho Bank Ltd., No. 18-306 (E.D. Pa. Aug. 27, 2018 Kelly, J.), the court granted a Defendant’s Motion to Dismiss for lack of personal jurisdiction.

In so ruling, the court stated that an overseas company cannot be “at home” in Pennsylvania sufficient to support allegations of general personal jurisdiction over that Defendant.  

The court additionally held that the fact that a subsidiary of the company had a branch office in Pennsylvania is not sufficient to impose jurisdiction.   The court noted that, in this case, the subsidiaries activities were not in any way related to the allegations raised in the lawsuit.  

The court also stated that the record that did not show that the overseas Defendant had engaged in any Pennsylvania-specific activities.  With this particular Defendant, its treatment of its customers did not depend upon their location.  

The court also reaffirmed the rule that an alleged failure to act does not constitute an activity in any jurisdiction.  

The court also noted that the Plaintiff in this matter had no direct transactions with the proposed Defendant.

Nor were there any Pennsylvania-centered activities by the Defendant against which to apply the “arise from”/”relate to” test.  

The court also stated that there was no evidence that the Defendant had any knowledge of the Plaintiff being located in Pennsylvania.

As such, the Motion to Dismiss for lack of personal jurisdiction was granted.  

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

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA

Summary Judgment Entered on Claims of Negligence Against Insurance Agent Regarding Request for Increased Auto Coverage

The Opinion of Judge Thomas F. Burke, Jr. in the case of Feist v. Andes, No. 2013-2678 (C.P. Luz. Co. July 19, 2017 Burke, J.), a decision from over a year ago, was recently published in the Luzerne Legal Register.  

In this decision, Judge Thomas F.  Burke, Jr., of the Luzerne County Court of Common Pleas granted a carrier’s Motion for Summary Judgment case where the Plaintiffs asserted that their insurance carrier and agent refused to provide them with the increase UIM coverage they had requested before one of the Plaintiff was involved in a motor vehicle accident.

Judge Thomas F. Burke, Jr.
Luzerne County

The Plaintiffs alleged that they had met with the insurance agent on two (2) separate occasions and had requested increase UIM coverage at each meeting but were not granted the same by the insurance agent.  The Plaintiffs asserted that the insurance agent allegedly attempted to talk them out of such increase coverage and/or did not provide them with such coverage. 

The court emphasized that the Plaintiff’s knew at the end of their meetings with the agent that they did not secure that increased coverage. The court also noted that the Plaintiffs admitted that they were aware that they could have sought out another insurance agent or another insurance company but did not do so.

The Plaintiffs sued the insurance agent and the carrier under counts of negligence, breach of fiduciary duty and/or duty of loyalty, and breach of a duty of good faith and fair dealing.  

The court granted summary judgment on each of these theories of liability.  On the negligence theory, the court found that, as a general rule of law in Pennsylvania, insurance agents have no common-law duty to their customers unless the insurance agent receives consideration for his services apart from the premium which is paid by the customer for the insurance policy itself, or whether the agent acts as an insurance counselor through an extensive and complex course of dealings with regards to the client’s business matters.  

The court reiterated that even accepting the facts noted above as being true, the Plaintiffs knew when the left the meeting with the insurance agent that they had not been granted increased coverages and that they likewise knew that they could have switched to a different insurance agent and/or carrier.   

Applying the principles of negligence law, the court was unwilling to find that an exception to the general rule of law that insurance agents have no common law duty to their customers existed in this case.  

Given this ruling on the negligence claim against the insurance agent, the court also entered judgment in favor of the carrier on the claim that the carrier owed a duty to the Plaintiff under the doctrine of respondeat superior.   The court also noted that there is no independent cause of action for respondeat superior liability under Pennsylvania law. 

The court additionally entered summary judgment in favor of the agent and the carrier on the claim of a breach of fiduciary duty and/or duty of loyalty.  

Judge Burke noted that, under Pennsylvania law, the purchase of an insurance policy is considered to be an “arm’s length” transaction, in which the carrier owes no fiduciary duty apart from the terms defined in the insurance contact.   

The court also noted that, generally, the relationship between an insurance agent and a customer cannot be characterized as a fiduciary relationship, except in limited circumstances in which the policyholder has authorized the insurance agent to make decisions on behalf of the policyholder.  

Such was not the case in this matter based upon the court’s review of the facts.   Judge Burke found that the record was devoid of any evidence that would show that the Plaintiff had relinquished their decision-making authority to the insurance agent or that the insurance agent had an “over-mastering” influence over the Plaintiffs.  

In this regard, the court noted that both Plaintiffs indicated that they had business knowledge with regards to purchasing automobile and homeowner’s insurance over the years.   Both Plaintiffs also acknowledged that they had consulted with and received legal advice from an attorney about increasing their coverage limits.   As such, the court found that the Plaintiffs were not relying upon the insurance agent’s advice, but rather, were relying upon their own knowledge as well as the advice of their attorney.

The court ruled in this case that the Plaintiff did not rely upon any purported statement by the insurance agent that they had sufficient UM/UIM coverage limits.   Rather, the Plaintiffs testified that they did not agree with the insurance agent’s assessment in this regard and had every intention of increasing their limits at some future time. 

The court emphasized the Plaintiffs nevertheless continued to renew their insurance policies during the ten (10) month time period leading up to the accident by paying the premiums by being completed away as to the current status of their limits.  

Lastly, the court also granted summary judgment in favor of the carrier on the Plaintiffs’ claim of a breach of a duty of good faith in fair dealing.   In so ruling, the court found that there was no evidence of any contract between the Plaintiffs and the Defendant insurance agent.   The court noted that the breach of a duty of good faith and fair dealing are intertwined and arise out of contract law.  

Given that there is no contract with the insurance agent, the court entered summary judgment in favor of the insurance agent on these claims.   The court additionally entered summary judgment in favor of the carrier as the Plaintiffs attempted to latch this theory on the carrier by way of a theory of respondeat superior.   The court noted that, since there is no contract found between the Plaintiffs and the insurance agent, there could no liability on the part of the carrier as well under a respondeat superior theory of liability.  

Overall, the court entered summary judgment on all of the claims presented. 

At the end of this Opinion is an Editor’s note indicating that the Pennsylvania Superior Court affirmed Judge Burke’s decision by way of an August 21, 2018 non-precedential decision under docket number 1326 MDA 2017 (Pa. Super. Aug. 21, 2018).  

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