Friday, December 14, 2018


Here is a LINK to a complimentary copy of the 119 page Tort Talk 2018 Civil Litigation Update booklet that I created for use at the recent Luzerne Bench Bar Conference.

The Tort Talk 2018 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and is offered here free of charge for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering a small donation to the Children's Advocacy Center in Scranton, your local Pro Bono Office, or perhaps another charity of your choice in this Season of Giving.
The Children's Advocacy Center in Scranton is a private non-profitable charitable organization whose mission is to provide services in the assessment and treatment in abuse and neglect case involving children.  The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510.  Here is a LINK to their website.  Just a thought.

Thanks for reading Tort Talk and and thank you for providing me with notable cases to highlight on Tort Talk.  All is much appreciated.

I wish you Warm and Happy Holidays



Tuesday, December 11, 2018

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

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

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

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

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

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

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

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

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

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

Monday, December 10, 2018

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

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

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

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

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

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

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

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

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

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

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

What do you think?

Friday, December 7, 2018

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

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

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

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

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

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

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

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

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

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

Preserve Your Objections

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 6, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 5, 2018

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

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

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

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

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

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

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

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

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