Friday, November 16, 2018

TORT TALK TIP




TRY TO LIMIT YOUR TIME ON EMAIL

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

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

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

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

Thursday, November 15, 2018

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


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

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

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

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

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

This matter arose out of a motor vehicle accident.  

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 14, 2018

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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



Tuesday, November 13, 2018

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Low Offer Supported by Record - No Bad Faith

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

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

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

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

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

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

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

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

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

Monday, November 12, 2018

No UIM Coverage for Gunshot Wounds From High Speed Police Chase

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

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

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

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

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

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

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

Various Section 1983 Civil Rights Claims Dismissed in Police Pursuit Case



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

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

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

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

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

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

Friday, November 9, 2018

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



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


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

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

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

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

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

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


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

Thursday, November 8, 2018

A REPRINT OF MY ARTICLE: "THE LESSONS OF FORREST GUMP"






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

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





Presenting CLE Seminar Today at Luzerne County Bench Bar Conference: "The Law is Like a Box of Chocolates"


Today, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, I will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the November 8, 2018 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.

The idea for this seminar comes from a previous article of mine entitled "The Lessons of Forrest Gump" that was featured in the March/April 2015 edition of the Pennsylvania Lawyer magazine published by the Pennsylvania Bar Association.

Here's a LINK to the article for your reading enjoyment.

Attorney Oven and I will be presenting this seminar again in Lackawanna County on February 26, 2019 at the Lackawanna Bar Association offices.  More details to follow.




BRING YOUR CASE TO A CLOSE WITH CUMMINS MEDIATION SERVICES



I welcome the opportunity to assist you in bringing your case to a close 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.

Wednesday, November 7, 2018

Western District Federal Court Reviews Parameters of Discovery About Withheld Discovery

A Discovery Dispute

An important but rarely reviewed discovery issue was addressed by the Western District Federal Court of Pennsylvania in the case of Alley v. MTD Products, No. 3:2017-CV-00003 (W.D. Pa. Sept. 28, 2018 Gibson, J.).   In this matter, the court addressed an opponent’s suspicion of inadequate document production by the opposing parties in discovery.  

The court ruled that an opponent’s mere suspicion of inadequate document production does not justify discovery about an opposing party’s discovery processes.   The court noted that discovery about discovery is allowed only upon the showing of bad faith or an unlawful withholding of documents.  

In this matter, the court granted a Motion for a Protective Order where one party had requested discovery documents from a prior products liability litigation.   The court noted that comparing the low amount in controversy against the cost of complying with this type of discovery request weighed in favor of granting the protective order.

The court additionally noted that the prior litigation was identified and that the Plaintiff could seek information from the electronic, online dockets.   

The court also noted that the discovery in dispute was not crucial to the case at hand.

Anyone wishing to review of 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 from bringing this case to my attention.


Tuesday, November 6, 2018

Motion to Sever and Stay Post-Koken Bad Faith Claim Denied Again in Luzerne County


In her recent Order only in the case of Albright v. Erie Insurance Exchange, No. 3919-2018 (C.P. Luz. Co. Oct. 15, 2018 Gelb, J), Judge Lesa  Gelb of the Luzerne County Court of Common Pleas denied a Defendant carrier’s Motion to Sever and Stay a statutory bad faith claim in a post-Koken matter.  

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

I send thanks to Attorney Stephen Fendler of Fendler & Associates in Kingston, PA for bringing this decision to my attention for inclusion in the post-Koken Scorecard which can be reviewed HERE.  

Judge Nealon of Lackawanna County Confirms that a Non-Party Expert Cannot Be Compelled to Give His Opinion Against His Will


In the medical malpractice case of Venosh v. Henzes, No. 11-CV-3058 (C.P. Lacka. Co. Oct. 1, 2018 Nealon, J.), the court addressed issues pertaining to Letters Rogatory as well as with respect to the ability of a party to call an expert witness to give his opinion at a deposition where that expert is not the expert of the party requesting the deposition.  

According to the Opinion, during discovery in this medical malpractice case, the Plaintiff obtained peer review reports pertaining to her surgical care that were prepared by an out-of-state orthopedic surgeon at the request of the Plaintiff’s health insurance carrier as part of its internal “quality-of-care” review process.  

The Defendant doctor in this matter filed a Motion In Limine seeking to preclude those quality-of-care review materials on the grounds that they contain inadmissible hearsay and due to the possibility of unfair prejudice.  

The Plaintiff countered with a motion seeking an Order and Letters Rogatory compelling the out-of-state orthopedic surgeon who performed the peer review to present himself for a trial deposition in that other state.  

Judge Terrence R. Nealon
Lacka. Co.
The court agreed that the carrier’s quality-of-care review records and the orthopedic surgeon’s peer review reports were not admissible.   However, subject to certain limitations, the court did allow the Plaintiff to question the peer review doctor regarding a letter he authored as a possible exception to certain hearsay objections.

Notably, with respect to the Plaintiff’s Motion for the issues of Letters Rogatory to compel the video trial deposition of the out-of-state orthopedic surgeon, the court noted that Pennsylvania law recognizes that a private litigant cannot compel the opinion testimony of a non-party expert witness without that expert’s consent.   See Op. at p. 25. 

As such, the court denied the Plaintiff’s Motion for Letter Rogatory without prejudice to the Plaintiff’s right to introduce expert testimony from that peer review doctor in the event that doctor voluntarily agreed to testify on behalf of the Plaintiff.

Anyone wishing to read this Opinion online may click HERE.

Monday, November 5, 2018

Detailed Bad Faith Complaint Survives Motion to Disimiss in Federal Middle District Court Case


In his recent decision in the case of King v. Travelers Companies, No. 3:18-cv-1549 (M.D. Pa. Oct. 11, 2018 Munley, J.), the court denied a carrier’s Motion to Dismiss a UIM bad faith Complaint.

According to the Opinion, this UIM bad faith claim involved injuries to three (3) family members as  a result of a motor vehicle accident.  The Plaintiffs claimed that their damages far exceeded the tortfeasors’ coverage and that their own carrier acted with reckless disregard with respect to the Plaintiffs’ requests for the payment of UIM benefits.  

The carrier moved to dismiss, asserting that the Plaintiffs had merely stated a claim of a dispute over the evaluation and failed to allege any specific facts beyond that to support any claims of bad faith.

Judge James M. Munley of the Federal Middle District Court of Pennsylvania denied the Defendant’s Motion to Dismiss indicating that, in one particular paragraph of the Complaint, the Plaintiffs had set forth twenty (20) alleged acts and/or omissions by the Defendant carrier that were specific to the bad faith claims.   

The court found that, based upon the Plaintiffs’ allegations, it was plausible that the carrier had acted in bad faith when it allegedly failed to conduct an investigation before denying the UIM claim.   The court found that the Plaintiff had raised an issue as to whether or not the carrier had denied the Plaintiff’s benefits with reckless disregard and alsi raised a question of whether or not the carrier’s decisions had a reasonable basis.  

The court additionally found that the Plaintiff pled enough facts to raise a reasonable expectation that discovery may reveal evidence to support the claims of bad faith presented.  

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

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

Tort Talk Tip

Having trouble finding a client or a witness?

A decent, free online search site in this regard is www.truepeoplesearch.com.

When you go to the site, you can type in the person's name and the last known phone number and address.  Several options usually pop up to try to locate the person at a new address.

No Coverage, No Bad Faith



In the case of Gerow v. State Auto Prop. & Cas. Co., No. 3:17-cv-203 (W.D. Pa. Oct. 11, 2018 Gibson, J.), the federal court held that, where there is a finding of no coverage under a policy, a court is required to enter judgment in favor of the carrier on the companion bad faith claim. 

This matter arose out of a property damage case from a burst water pipe.  

The insurance policy at issue required continued residency as a condition for the coverage.   The facts confirmed that the insureds were not residing at the property at the time the water pipe burst. 

When the carrier refused to pay based upon the residency requirement under the policy, the insured sued for breach of contract and bad faith.  

After ruling that there was no breach of the policy, the court went on to dismiss the Plaintiff’s bad faith claim as well.  

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

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

Friday, November 2, 2018

Homeowner's Insurance Carrier's Duty To Defend Addressed in Assault Case

In the case of Homesite Ins. Co. v. Neary, No. 17-2297 (E.D. Pa. Sept. 17, 2018 Bartle, J.), the court addressed a homeowner’s insurance company’s duty to defend in a matter involving a physical assault.  

According to the Opinion, two (2) roommates sharing a rented apartment got into a physical altercation, first at an off-premises party and then again at the rented apartment.  

After the Plaintiff sustained a traumatic brain injury as a result of the attack, a lawsuit was filed against the other roommate, alleging claims of negligence, recklessness, and other claims.  

The carrier had issued a homeowner’s policy to the attacker’s parents.  The homeowner’s insurance company filed this declaratory judgment action seeking a judicial declaration that it had no duty to defend the attacker.   The issue came before the court by way of a Motion for Summary Judgment. 

According to the Opinion, the homeowner’s insurance carrier’s limited coverage to injury or damage caused by an “occurrence,” which was defined as an accident.   The term “accident” was not defined in the policy.

Accordingly, the court construed that word according to its natural, plain, and ordinary sense to mean “an unexpected and undesirable event occurring unintentionally.”  The court noted that the key phrase in the definition of an “accident” is the word “unexpected” which the court found to be imply a degree of fortuity.  

Although the Plaintiff’s Complaint contained allegations of negligence, the court noted that the Plaintiff’s characterization of the claims is not controlling on the coverage question issues.   Rather, the court was required to look at the factual allegations.   In the end, the court found that the Plaintiff’s attempts to characterize the causes of action as claims sounding a negligence was insufficient to trigger the carrier’s duty to defend.   Accordingly, the carrier’s Motion for Summary Judgment was granted.

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

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


Thursday, November 1, 2018

SAVE THE DATE: November 8, 2018 (Next Thursday) Luzerne County Bench Bar Conference


Next Thursday, 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.

The cost to attend for Wilkes-Barre Law & Library Association Members is $85.00.  The price to attend for non-members is $125.  Please email Gail Kopiak at the Association to register or for more info at gail.kopiak@luzernecounty.org.

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.