Tuesday, December 31, 2019

A New Year, A New Law Firm


610 Morgan Highway
Clarks Summit, PA 18411
Ph. 570-319-5899
Fax 570-319-5898

Website:  www.CumminsLaw.net

I am happy to report that I have opened my own law firm and will continue to provide the same type of insurance defense services as I have offered over the past 22 years and the same as those who came before me in the related law firms over the past 60 years.  I am grateful to those past attorneys and, in particular, my mentor Tim Foley, Esq., who will be affiliated with the new firm as Of Counsel.

We will be located in Clarks Summit, PA, which is just outside of Scranton, PA.  We will represent clients all across the northeastern quarter of Pennsylvania.

Attorney Stephen T. Kopko, Esq. will be an associate attorney in the firm and, as noted, Timothy E. Foley, Esq., will be Of Counsel to the firm.

Our cases will mainly be in Lackawanna, Luzerne, Wayne, and Monroe Counties.  

However, we will also continue to handle our numerous cases in the Counties as far west as the Pottsville and Williamsport areas, as far north as the NY border, as far east as the NJ border, and as far south as the Easton - Allentown - Jim Thorpe line of towns.

Our Mission Statement is, as follows:

We at CUMMINS LAW pledge to deliver our legal services in the most prompt, efficient, and responsive manner possible with the goal of securing the best possible result for the client.

Please do not hesitate to contact me if I may assist you in the defense of any civil litigation matters whether it involves a motor vehicle accident, a trucking accident, a trip or slip and fall matter, or a products liability case.  We also handle insurance coverage questions and insurance subrogation matters.

In addition to litigating cases, I will also continue to work as a Mediator, both as a Certified Mediator in the Federal Middle District Court of Pennsylvania and as a private Mediator through Cummins Mediation Services.  Please do not hesitate to contact me to set up a mediation and bring your case to a close.

And, of course, I will continue to write the Tort Talk Blog in the hopes that it will continue to assist all in their practice of law.

The renovations to our new office are almost complete.  Will follow up here with a note as to when they are finished later this month along with an open invitation for you to please stop in and see us when you are in town.  





Daniel E. Cummins

Monday, December 30, 2019


Here is the Tenth Annual 2019 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year or so as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.

10. Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.)

In a case of first impression, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of whether the Medical Marijuana Act creates an implied private cause of action or a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment. The court recognized such a cause of action and allowed the claim to proceed.

9. Lack of Appellate Guidance on Post-Koken Issues Continues

Despite the passage of well over a decade of time since the Koken decision was handed down in 2005, there is still a continuing trend of a lack of any concrete appellate guidance on any of the many novel issues created by this form of litigation from the pleadings stage to trial. The lack of appellate guidance is due to the fact that most of the cases in this area of law continue to be resolved by one form of ADR or another. The hope remains that those cases that do go up the appellate ladder will result in published decisions by the Superior Court and grantings of allocatur by the Supreme Court.

Here is a quick LINK to the Post-Koken Scorecard on Tort Talk.

8. Yanakos v. UPMC, No. 10 WAP 2018 (Pa. Oct. 31, 2019)

The Pennsylvania Supreme Court, in a 4-3 decision, ruled in favor of the Plaintiff’s argument that MCARE's statute of repose was unconstitutional. The rationale of the majority Opinion in Yanakos striking down the statute of repose under the MCARE Act was that the statute of repose was not substantially related to a governmental interest as was necessary to uphold the statute. The Court also found that the statute of repose in the MCARE Act violated the Pennsylvania Constitution's guarantee of open access to the Courts.

7. Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.)

In April of 2019, the Pennsylvania Superior Court provided its latest pronouncement on the law on the admissibility of intoxication evidence in civil litigation matters. The Court reiterated the rule of law that evidence of alcohol or drug consumption by a person involved in an accident is admissible only where there is sufficient evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.

6. Moran v. USAA, No. 3:18-cv-2085 (M.D. Pa. Feb. 14, 2019 Caputo, J.)

The court dismissed a Plaintiff’s bad faith claim without prejudice and leave to amend to correct certain issues with the Complaint. This is one of many Federal Court decisions evidencing a continuing trend towards forcing Plaintiffs’ to avoid conclusory allegations in bad faith matters and instead requiring the pleading of specific acts of alleged bad faith.  There were also a number of decisions handed down over the past year that confirmed that the extension of an alleged low ball offer followed by a settlement or an award of a much higher number does not necessarily equate to bad faith -- click HERE to view those Bad Faith - Low Ball Offer cases.

5. Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting)

The Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.  Over the past year, a number of decisions have been handed down at both the trial court and appellate level analyzing the application of the Lamp v. Heyman line of cases and their progeny.  Click HERE to view a compilation of those cases.

4. Davis v. Volkswagen, No. 1405 EDA 2018 (Pa. Super. July 19, 2019 Bowes, J., McLaughlin, J., Stabile, J.) (Op. by McLaughlin, J.)(Stabile, J., Concurring)

The Pennsylvania Superior Court held that the Lehigh County Court of Common Pleas did not commit any error in a products liability case when it instructed the jury on both the consumer expectation test and the risk-utility test that the Pennsylvania Supreme Court established in the case of Tincher v. Omega-Flex.  The Superior Court ruled in this fashion even though the Plaintiff only litigated the case under the consumer expectation test. The Court found that, where the defense presented evidence that also implicated the risk-utility test, a jury instruction was warranted in that regard as well.

3. Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., Colins, J.)   (Dissenting Op. by Lazarus, J.).

In Farese, the Pennsylvania Superior Court held, in what appears to be the first appellate decision of its kind, that future medical expenses need not be reduced in accordance with Act 6 before being presented to the jury at trial in an auto accident case. This decision did not impact the rule that past medical expenses incurred in motor vehicle accident cases have to be reduced before being presented to a jury.

2. BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)

The Pennsylvania Supreme Court offered its latest pronouncement on attorney work product issues in June of 2019. The Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine. The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

1. Gallagher v. GEICO, 201 A.3d 131 (Pa. Jan. 23, 2019)

The Pennsylvania Supreme Court held that the Household Exclusion contained in a Geico policy violated the MVFRL was invalid because it served as a “de facto waiver” of stacked coverage. The Court suggested that its decision in Gallagher not only applied to that case, but should also be read to eradicate the Household Exclusion across the board.  While a number of subsequent Federal Court decisions served to expand the scope of the Gallagher decision, at least one more recent trial court decision (Nationwide v. Ryman) has suggested that the Gallagher decision should be limited to its facts.

Thursday, December 26, 2019

Quoted in Article About Analysis of Recent Pennsylvania Supreme Court Decisions

Here is a reprint of a December 23, 2019 article by Max Mitchell of the Pennsylvania Law Weekly in which he called me for some thoughts on the impact of recent Pennsylvania Supreme Court decisions on important civil litigation issues.

Drifting Away From Precedent?: Some See Pa. Supreme Court Upending Established Case Law
By Max Mitchell | Pennsylvania Law Weekly 

December 23, 2019

At the beginning of 2019, Pennsylvania Supreme Court Justice David Wecht issued an opinion in the closely watched case Gallagher v. Geico in which he decried what he saw as the court “upending … well-established precedent” and supplanting its own judgment over that of the legislature.

It was not the only time the justice sparred with the other members of the court about their perceived departures from precedent, and in late October, he distanced himself again from the court’s ruling in another high-profile case—this time in Yanakos v. UPMC—saying that the majority’s standard for reviewing the issue was “contrary to our precedent” and “encroach[ed]” on the legislature.

Wecht’s words serve to highlight what some court watchers have observed as the current make-up of the court’s willingness to reconsider, and in some cases diverge from, longstanding precedent. Although some legal observers dispute why and the degree to which the court has scrapped precedent compared to other iterations of the high court, attorneys who monitor the body largely agree the court has not been shy about looking at issues in a new light.

According to Scranton-based insurance defense attorney Daniel Cummins of Foley, Comerford & Cummins, the past few years have marked a “new era” of the court.

“The Supreme Court has become like a snowplow truck, clearing precedent off the highway of Pennsylvania law and dropping salt as it passes by to melt away any remnants of the law as we knew it,” Cummins said, specifically regarding the Gallagher decision.

According to Cummins, that ruling was the latest in a line of cases overturning precedent that included 2018′s Balentine v. Chester Water Authority, which expanded the exception to governmental immunity by holding that involuntary movement of a vehicle constituted an “operation,” and Cagey v. PennDOT, in which the court limited the Pennsylvania Department of Transportation’s immunity from suits involving guardrails.

After the justices ruled in Yanakos, Cummins said that was another example of the court diverging from longstanding precedent.

“That’s going to change the course of Pennsylvania law going forward. It’s certainly a shift compared to decisions in the past,” Cummins said.

Although the fact that the high court has reconsidered precedent numerous times in the past few years is clear from a review of the body’s output, not all agree that the current iteration of the court is any more willing to diverge from precedent than the court had when other justices sat on the bench.

“This is something that supreme courts do as times and circumstances and their personnel change,” Marshall Dennehey Warner Coleman & Goggin attorney John Hare said.

Hare likened the body to the U.S. Supreme Court, which sparked its own debate about precedent in 2019 after overturning precedent in cases involving property rights and sovereign immunity, among other things.

Lamb McErlane attorney Maureen McBride also said she did not think the court was overturning precedent more frequently than prior versions of the court. Although she said the court appeared to have expanded the law in some areas, she said that was due to the court more broadly interpreting the law.

“I don’t think the court is overturning existing case law, as much as it is reading more broadly into things like the Constitution,” McBride said.

The justices’ November decision in Yanakos, which struck down the MCARE statute of repose as violating the Pennsylvania Constitution’s guarantee of open access to the courts, is a clear example of the court broadly applying the Constitution’s remedies clause to make a shift in the law.

Cummins, however, said the several decisions that went against precedent expanded liability for defendants and opened new avenues for plaintiffs to recover—rulings, he said, that could force the defense bar to adjust their tactics.

“I think now that we’re seeing this, it makes defendants reluctant to bring issues all the way up to the Supreme Court, and instead to resolve cases before it gets to that point,” he said. “On the flip side, it would appear that the plaintiffs bar is trying to bring everything they can up to the Supreme Court with its current bench.”

Schmidt Kramer attorney Scott Cooper, who was a leading attorney on Gallagher, disputed the notion that the court was simply favoring one side over another, and said the court has been more strictly interpreting the law—at least when it comes to the Motor Vehicle Financial Responsibility Law.

Cooper said that, when it comes to auto insurance cases, for years courts have been following precedent that was not based on an interpretation of the law, but was rather an outgrowth of cases that arose through bad facts.

“Bad facts make bad law,” he said. “We finally have a court that is looking at the law and applying it.”

In Gallagher, the justices ruled 5-2 that the household vehicle exclusions cannot be used to bar injured claimants from recovering stacked coverage. Breaking with decades of precedent, the justices said the exclusions acted as a “de facto waiver” of stacked coverage.

In footnotes in the majority opinion, Justice Max Baer said the decision breaks with the Supreme Court’s 2011 holding in Government Employees Insurance v. Ayers, and the 2009 decision in Erie Insurance Exchange v. Baker. However, Baer said the court’s holding did not go against principals of stare decisis because the court split evenly in Ayers and the holding in Baker was a plurality decision.

Cooper, a former president of the Pennsylvania Association for Justice, said that, although the high court may be trimming back some precedential decisions, its focus remains on the Pennsylvania Constitution.

“What the Supreme Court’s saying is, ‘whether this was the intent or not; whether this was said or not said, there’s nothing we can do about it. The Constitution is the Constitution,’” Cooper said. “They’re applying the law. The highest law.”

Copyright 2019. ALM Media Properties, LLC. All rights preserved.

Monday, December 23, 2019

Court Rules That Artful Pleading Cannot Defeat Exclusions Applicable Under Homeowner's Policy

In the case of Carrasquillo v. Kelly and Nationwide Mut. Fire Ins. Co., No. 2720 EDA 2018 (Pa. Super. Nov. 12, 2019 Panella, P.J., Kunselman, J., and Stevens, J.E.) (Op. by Kunselman, J.)(Non-precedential decision), the court addressed issues pertaining to a declaratory judgment action under a homeowner’s policy.

According to the Opinion, the Nationwide insured fatally shot and killed the Plaintiff’s decedent in the insured’s home. The insured later pled guilty to a charge of murder in the third degree. Thereafter, the decedent’s family pursued a wrongful death and survival action.

In response, Nationwide, the carrier who provided homeowner’s coverage on the home where the incident occurred, denied coverage under the intentional acts exclusion and the criminal acts exclusion. A declaratory judgment action was filed to address these issues.

In this declaratory judgment action, the Plaintiff attempted to argue that it had pled negligence allegations in the underlying Complaint such that the exclusions were not applicable. The court disagreed and noted that artful pleading did not serve to avoid the exclusions in this matter.

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

I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA law firm of Fowler, Hirtzel, McNulty & Spaulding for bringing this case to my attention.

Quoted in Nationally Published Article in Business Insurance Magazine on Civil Litigation Medical Marijuana Issue

Was quoted in this article in the nationally published Business Insurance magazine regarding the write-up on Judge Terrence R. Nealon's decision in the case of Palmiter v. Commonwealth Health Systems regarding the validity of a Plaintiff's employment discrimination lawsuit after she was fired for testing positive for marijuana use even though she advised the employer that she was an authorized user of medical marijuana:

Medical Marijuana Trend Means Growing Discrimination Exposures


Judy Greenwald

December 10, 2019

A growing number of workers and job applicants are successfully suing businesses for discrimination after they terminate or fail to hire them because of their medical marijuana use, experts say.

The trend is expected to accelerate with 33 states and the District of Columbia to date having legalized medical marijuana’s use, these experts say.

Recent cases include a Nov. 22 ruling by the Court of Common Pleas of Lackawanna County in Scranton, Pennsylvania, which became the first state or federal court in Pennsylvania to rule on the issue.

Complicating the situation for employers, meanwhile, is the fact that marijuana remains an illegal drug under federal law and various state laws create a patchwork quilt of legislation for them to follow.

Experts recommend that employers make an effort to engage in an interactive process with workers in states where medical marijuana has been legalized.

In the Pennsylvania case, the Court of Common Pleas held in Pamela Palmiter v. Commonwealth Health Systems Inc. at al. that although the state’s Medical Marijuana Act, which became effective in 2016, does not explicitly permit a private right of action by an employee who is allegedly discriminated against because of medical marijuana use, it does so implicitly.

“It opens the door to other lawsuits” and will be influential both inside the state and elsewhere, said Daniel E. Cummins, a partner with [Cummins Law] in Scranton that represents clients in civil litigation.

Observers point to comparable rulings in federal and state courts including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey and Rhode Island.

Frederick T. Smith, a labor and employment attorney with Seyfarth Shaw LLP in Charlotte, North Carolina, said that of the 33 states that have legalized medical marijuana use, 16 provide workspace protections, either through their statutes or through case law interpreting their statutes, with the remaining either silent or ambiguous on the issue.

The 16 states are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, West Virginia and Massachusetts.

Mr. Smith said that while courts initially tended to rule employees could not pursue discrimination charges in medical marijuana cases, “the tide started to turn in 2017, with decisions coming from courts in the Northeast that changed the risk analysis for the business community when it comes to applicants’ and employees’ use of marijuana.”

“There’s an increasing trend across all states to protect the medical use of marijuana and to treat it similarly to how prescription drugs are treated,” said Matthew A. Hesketh, a member of Sherman & Howard LLC in Phoenix, whose practice focuses on contractual disputes, corporate and business matters, administrative law and appellate litigation.

“If an employee would be entitled to use prescription drugs in compliance with the law, the trend is courts are willing to treat marijuana in the same way, assuming it has some recognized protection under state law,” he said.

“There are two primary avenues for recognizing protection of medical marijuana,” Mr. Hesketh said. “The first is through an antidiscrimination type of law, so generally, if medical marijuana can be viewed as a reasonable accommodation for someone’s disability, some states are willing to recognize that under their own state laws (that are) analogous to the (Americans With Disabilities Act), that the medical use of marijuana is potentially a reasonable accommodation,” although they cannot use it on the job site, he said.

The other source of protection is instances such as Arizona’s, where the law protects employers from taking any adverse action against an employee who is a registered medical marijuana cardholder as long as he does not come to work impaired.

“There’s going to be a movement” of litigation in this area, said Vance O. Knapp, a partner with Armstrong Teasdale LLP in Denver in management-side labor and employment law .

“The first step was to get it legalized,” he said. Now that its proponents have been successful, the next movement will be to provide protection for employees.

If workers have a medical marijuana card “the really smartest move to make” is to engage with them in an interactive process “and see if they have an underlying disability which requires accommodation,” said Amy Epstein Gluck, a partner with FisherBroyles LLP in Washington who advises business owners on compliance with anti-discrimination laws.

Mr. Smith said employers “should be reexamining their policies and practices and their tolerance for risk” in the 16 states that provide discrimination protection.

“Many companies are developing reasonable accommodation processes in order to determine whether applicants’ and employees’ use of medical marijuana doesn’t impact their ability to safely and effectively perform their jobs in the case of employees, and the jobs to which they are applying in the case of applicants,” he said.

Linda B. Hollinshead, a partner with Duane Morris LLP in Philadelphia, who provides training and counseling to employers, said she recommends employers look at the situation from the perspective of two points in time: at the prehiring, post-drug testing stage, and situations where the employee is already working at the company, where the issue most often arises post-accident and there is a reasonable suspicion of drug use.

In cases where the applicant has not yet been hired, employers should “carefully consider what kinds of positions they really want to be testing for,” and distinguish between safety-sensitive and nonsafety-sensitive positions, she said.

“I have many clients who have decided to not test for marijuana,” at least at the pre-hire stage, for nonsafety-sensitive positions, she added.

Employers who do conduct drug testing should work with their medical review officers and drug testing companies, and set up protocols that provide an expert’s independent judgment on the issue if the candidate tests positive, she said.

The employer should then engage in an interactive process with the applicant to determine if they can safely perform in the position for which they are being considered.

In cases where someone is already working at the company, employers “have to distinguish between safety-sensitive and nonsafety-sensitive” positions, but in states where medical marijuana has been legalized, the employer should not make a decision a worker should not be employed simply because they use medical marijuana, she said.

Experts recommend employers stay on top of local laws in this matter.

“Obviously this is an area of law that’s evolving rapidly,” said Mr. Hesketh. It is a lot to keep track of, he added, with new court cases, legislation and proposed legislation “almost every single day,” he said.

“The best advice I can give is to keep it on your radar” and be cognizant that “this is changing quickly. This isn’t something where you can just rely on old policies or handbooks or what may have been OK” even a year ago.

“It comes down to corporate culture and management decisions from one company to the next,” said Marshall Gilinsky, a shareholder with Anderson Kill P.C. in New York with practices in the firm’s insurance recovery and commercial litigation departments.

“You can see how there are reasons why, say, a trucking company might have a different policy compared to an advertising agency. But either way, it seems that when it comes to medical marijuana, the idea that someone can be fired because of the medicine that they’re taking doesn’t seem to be fair or make sense,” Mr. Gilinsky said.

“Obviously, if you have an employee who’s operating heavy equipment, it’s clear they can’t be intoxicated while on the job, but most medical marijuana products do not have intoxicating or hallucinatory effects.”

Federal action is also possible, said Paula A. Barran, founding partner at Barran Liebman LLP in Portland, Oregon, who represents management. “At some point, I think the patchwork quilt is going to force Congress to change where it’s headed,” she said.

Another factor to consider, she said, are remaining questions as to marijuana’s safety. “The products haven’t been studied for safety or purity or long-term effect,” she said.

Federal Court Judicial Vacancies Being Filled Across the Nation

Here is a LINK to an Associate Press article from December 21, 2019 by Matthew Daly entitled "Trump Transformation of Courts Marches On."

The article analyzes how the Trump administration and the Republican controlled Senate have been filling federal court judicial vacancies with alacrity all across the nation at the District Court and Court of Appeals levels.

Thursday, December 19, 2019

A Chain Reaction Accident: Was It One Accident or Two Accidents For Purposes of UIM Coverage?

In the case of Busby v. Steadfast Ins. Co., No. 2:19-CV-02225-HB (E.D. Pa. Oct. 31, 2019 Bartle, J.), the court addressed cross-motions for summary judgment in a post-Koken case involving claims for breach of contract and bad faith.

 One issue the Court faced was whether the Plaintiff was involved in one “accident” or two “accidents” when she was involved in two separate impacts in quick succession. The answer to this question would determine whether the Plaintiff was permitted to seek out additional UIM coverages under an argument that she was involved in two separate car accidents.

In its Opinion, the court noted that one of the policies at issue provided a definition of an “accident,” and the other did not. The court generally noted that, in the insurance context, the term “accident” is generally defined an unexpected and undesirable event occurring unintentionally.

Judge Bartle reviewed two different competing approaches used by the courts to determine the number of accidents for purposes of insurance coverage: the “cause” approach and the “effects” approach. The court noted that, in Pennsylvania, as in a majority of jurisdiction, the “cause” approach has been adopted.

Under the cause approach, the general rule is that an occurrence is determined by the cause or causes of the resulting injury. Under this analysis, the court determines if there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages alleged by the Plaintiff.

The court noted that, if the cause and the result are so simultaneous or so closely linked in time and space as to be considered by the average person as one event, the courts adopting the “cause” analysis have uniformly held that such an accident involves a single occurrence or accident.

In this matter, the Plaintiff was a passenger in a back seat of an automobile driven by another person that the Plaintiff had hired as a Lyft driver. As that vehicle was traveling eastbound on the Schuylkill Expressway in the left hand lane, the traffic came to a stop. The driver of the Lyft vehicle rear-ended the vehicle that was stopped in front of him in traffic.

Moments after the Lyft driver hit the car in front of him, another vehicle collided with the rear of the vehicle in which the Plaintiff was located as a passenger.

The court noted that the vehicle that the Lyft operator was driving was equipped with an event data recorder, which recorded “two separate events.” That data also established that approximately only one second had passed between the two crashes.

The court also stated that evidence was presented as to the delta forces of impact applied to the Plaintiff with respect to each of the accidents. The delta force numbers were different with regards to both accidents.

Judge Bartle also noted that the Plaintiff’s treating doctors had attributed her injuries to “the incident” or “the accident.” It was additionally noted that the Plaintiff’s medical providers did not offer any opinions as to which injuries were caused by which accident.

Applying the “cause” approach under Pennsylvania law, the court in this Busby case found that there was two independent actors who caused two separate collisions. The court also noted that, while the time between the two crashes was only one second, that was enough time for the Plaintiff to be thrown forward as a result of the Lyft crash and then again a second time as a result of the subsequent rear-end accident.

The court also noted that, even if the Lyft driver had not rear-ended the vehicle ahead, the evidence confirmed that the Lyft vehicle still would have been rear-ended by the other vehicle. Accordingly, the court noted that the crash caused by the Lyft driver rear-ending the vehicle ahead was not the proximate cause of the rear-end crash to the back of the Lyft vehicle.

Therefore, the court in Busby found that the two crashes did not involve one continuing and uninterrupted cause.

Judge Bartle distinguished the facts of this case from a typical chain reaction motor vehicle accident crash where the last car hits the car in front of it which then hits the car in front of it as a result of the first impact. In such a different scenario of a “domino” type of chain reaction accident, the court noted that that separate situation could be viewed as one accident under the policy language at issue in this case.

Based upon its analysis, the Eastern District Federal Court predicted that, if faced with the issue, the Pennsylvania Supreme Court would rule that, under the facts presented in this case, two accidents took place.

 As such, the court granted the Plaintiff’s Motion for Partial Summary Judgment in this matter and found that she was involved in two accidents for purposes of the potential insurance coverages. The motions of the insurance company Defendants seeking a finding that only one accident took place were denied.

Anyone wishing to review a copy of this decision may click this LINK. The compantion order can be viewed HERE.

Wednesday, December 18, 2019

ARTICLE: 'Sayles' Decision by Pa. Supreme Court Illustrates Continued Judicial Activism

The below article appeared in the December 5, 2019 edition of the Pennsylvania Law Weekly and is republished here with permission.

'Sayles' Decision by Pa. Supreme Court Illustrates Continued Judicial Activism

By Daniel E. Cummins | December 05, 2019
Daniel E. Cummins.

Over the past several years, the plaintiffs bar made an organized push to support various candidates running for seats on the Pennsylvania Supreme Court, with many of those candidates winning their elections. Now, over the past year or so, with the new make-up of the Pennsylvania Supreme Court containing several new members that are shoving the pendulum to the opposite direction, the plaintiffs bar has been pushing cases up the appellate ladder in a determined and organized effort to alter the course of Pennsylvania jurisprudence.

For example, in Cagey v. Pennsylvania Department of Transportation (PennDOT), 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances, thereby allowing the plaintiffs to bring more actions against PENNDOT in auto accident cases.

In another recent stunning reversal, the new Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “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, 191 A.3d 799 (Pa. Aug. 21, 2018 Mundy, J.).

Then, earlier this year, in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the increasingly liberal, judicially activist Pennsylvania Supreme Court shook up the automobile accident litigation world by eradicating the household exclusion not only in the case before it, but across the board. This exclusion that had been routinely upheld for decades by various prior court decisions with some of those decisions even coming from the Supreme Court, was history.

Indeed, even Justice David Wecht, in his dissenting opinion issued in the Sayles case reviewed below, has framed the Supreme Court’s recent jurisprudence, particularly in motor vehicle accident cases, as evidencing “freewheeling and unwarranted invocation of ‘public policy’” to change and rewrite long-standing law.

The Liberal Judicial Activist Trend Continues

Now comes the recent Supreme Court decision in the combined matters of Sayles v. Allstate/Scott v. Travelers, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.). This case involved the practice of automobile insurance companies requesting insureds to attend first-party personal injury protection (PIP) medical exams as allowed by the terms of the insurance policy. The Supreme Court’s decision in Sayles eradicates this practice in a manner that favors plaintiffs and allegedly injured parties.

The plaintiffs in Sayles argued that such policy terms that allowed carriers to repeatedly require its insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is titled “Mental or physical examination of a person.” That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The plaintiffs bar attempted to paint a picture that the IME practice was being abused by the carriers by alleged repeated referrals of insureds for medical exams, by allegedly selecting doctors favorable to carriers, and in other ways.

The plaintiff’s argument in Sayles was that the policy provisions in automobile insurance policies allowing a carrier to refer an insured to a medical exam to test the validity of the insured’s need for ongoing treatment violated the wording of Section 1796 which required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam. The plaintiffs also emphasized that, even when good cause is shown for such an exam, it is the court and not the insurer who should select the doctor to complete the exam.

It should come as no surprise that the current Supreme Court (except the dissenting Wecht) in Sayles accepted the plaintiff’s argument and rejected the long-standing practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions. The Supreme Court ruled that insurers must, instead, file a petition with the court and demonstrate good cause. Also, the court ruled that it will now be a trial court judge who will select the medical examiner and not the carrier.

In footnote 11, the majority of the Supreme Court dismissively rejected the notion that its decision in Sayles would result in any great number motions being filed in this regard in the trial courts. The Supreme Court noted that Section 1796 has been on the books for years and has never generated much motions practice. What the court does not acknowledge in this footnote is that motions practice was never required in the context of PIP medical expense claims before as automobile insurance policies all contained the agreement between the carriers and their insureds that the carriers could refer the plaintiffs to exams without the necessity of the carrier filing a motion with the court.

Now that plaintiffs attorneys are armed with the Sayles decision, there is no doubt that they will, in many cases, balk at allowing their clients to be referred to medical examinations unless the carrier files a motion with the court. Forcing a motions practice will allow the plaintiffs to exert some control over the selection of the doctor and the parameters and conditions of the exam.

It can therefore be anticipated that the practice of PIP carriers referring its insureds to medical exams to test the validity of the need for treatment will be changed from one in which the already overburdened trial courts did not have any such motions or litigation whatsoever to address in this regard to one where they will likely be flooded with many motions filed and dickered over by fighting attorneys and parties in petty fashion.

Even worse, the Supreme Court, in its haste to rewrite the law and change long-standing practice for the benefit of plaintiffs in Sayles, did not provide any guidance to the trial courts regarding how to select an appropriate doctor to complete the examination or what parameters or conditions should be imposed upon the examination.

In the end, the plaintiffs’bar convinced the Supreme Court to take what was a molehill of nonissue and to turn it into a mountain of anticipated litigation without any trail to follow up its steep terrain to nowhere but trouble.

Impetus for a Class Action Suit?

It appears that a main impetus behind the effort to get this issue before the Supreme Court and to secure the ruling that was secured was to open the door for a class action lawsuit by the plaintiffs against various carriers who have, in the past, referred their insureds to medical examinations as per the previous insurance policy provisions and without filing any motion with a court as had been the long-standing practice for decades. Within days, if not hours of the issuance of the Sayles decision, a push was being made by the plaintiffs bar to generate potential plaintiffs for such a class action.

However, in a rare instance of restraint, the Supreme Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day. As such, the Sayles decision opened the door for a potential class action lawsuit but did not pave the way (yet).
Taking Steps Backwards

The Pennsylvania Supreme Court’s decision in Sayles appears to be of little moment with respect to PIP IMEs themselves as it was a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

The unfortunate detriment of the Sayles decision is that validly injured plaintiffs may now be delayed in continuing their treatment with the uncertainty of whether coverage for their medical expenses will continue given the need to now first proceed through motions practice to secure an eventual court order to determine whether a carrier’s request for a medical exam is appropriate.

Although the plaintiffs bar may have taken a step forward in its effort to generate a class action lawsuit in search of a lucrative recovery, injured plaintiffs themselves have been forced to take a step backwards in their pursuit of treatment for their injuries. Even worse, innocent Pennsylvanians everywhere face the prospect of increased automobile insurance premiums as a result given the new costs that will be attendant with the additional litigation that will now be required for the first time by the Sayles decision.

Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters.

Monday, December 16, 2019

Article on Case Giving New Life For Household Exclusion

Was called for a quote in the below article by Zack Needles (as was Scott Cooper, Esq.) on the latest decision to come down on the Gallagher v. GEICO Household Exclusion issue:

Trial Judge: 'Gallagher' Doesn't Apply Where Insureds Waived Stacking

By Zack Needles | December 12, 2019

Photo credit: Rawpixel.com/Shutterstock.com

A Columbia County trial judge has ruled that the Pennsylvania Supreme Court’s landmark ruling from earlier this year in Gallagher v. Geico barred insurers from using the household exclusion to block stacked underinsured motorist coverage that had already been paid for, but did not apply in situations where stacking was voluntarily waived by the insureds.

In Nationwide Property and Casualty Insurance v. Ryman, the estate of Wyatt Ryman, who was killed in a motor vehicle accident, sought to recover underinsured motorist benefits under both Ryman’s policy and a policy issued to defendants Franklin and Yvonne Ent, relatives with whom Ryman lived at the time of his death.

The insurer who issued those policies, Nationwide Property and Casualty Insurance Co., denied coverage under the Ents’ policy, citing the household exclusion. Nationwide filed a complaint in May in the Columbia County Court of Common Pleas seeking a declaration that it does not owe coverage.

The defendants, in a motion for judgment on the pleadings, pointed to Gallagher, arguing that the household exclusion is never enforceable, but Columbia County Judge Gary Norton denied the motion.

Norton said the defendants’ interpretation of Gallagher was overly broad, explaining that because there’s still a material question as to whether Ryman and the Ents waived their right to stacked coverage, Gallagher may not even apply.

Norton said the fact that the plaintiff in Gallagher had not voluntarily waived inter-policy stacking was essential the Supreme Court’s ruling in that case.

“It is clear that the undisputed fact that the plaintiff in Gallagher selected and paid for stacking rights was pivotal in the Gallagher decision by the Supreme Court,” Norton said. “Defendants in the present case point to the final paragraph in Gallagher for their expansive reading: ‘For all of these reasons, we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.’ Giving effect to the language ‘For all of these reasons…,’ which included the fact that the plaintiffs paid for and secured stacking benefits in both policies, we believe defendants’ expansive reading of Gallagher is in error. The most fair interpretation of Gallagher is to read it in the context of its facts and in view of all of the language used by the Supreme Court, especially in citing the importance of the fact that the plaintiff selected and paid for the right to stack benefits under both policies.”

If it’s ultimately determined that Ryman and the Ents legitimately waived stacking, Norton said, the case would be more similar to the state Supreme Court’s 2006 ruling in Craley v. State Farm, in which the estate of a woman who died in an automobile accident was unable to collect UIM benefits under the decedent’s husband’s policy because both the decedent and her husband had elected to waive stacking.

Craley, Norton said, stood for the proposition that, “where there has been a valid waiver of stacking UIM benefits as to both policies, inter-policy stacking may be legitimately prohibited in a motor vehicle insurance policy.”

Scott Cooper of Schmidt Kramer in Harrisburg, who represented the plaintiffs in Gallagher but was not involved in the Ryman case, said Norton’s ruling simply said it was too early to determine whether stacking was waived in this case. Cooper also acknowledged that the mere invocation of the household exclusion was not necessarily fatal to an insurer’s case, though he added that insurers still have a heavy burden to prove that stacked coverage was knowingly and voluntarily waived.

Daniel Cummins, an insurance defense lawyer with [Cummins Law] in Scranton who also was not involved in the Ryman case, said Norton’s ruling “puts the brakes on Gallagher somewhat.”

“Until this decision came down, everybody was starting to think, ‘Gallagher eradicated the household exclusion, so we don’t have to worry about it,’” he said, but under the Ryman ruling, the first step in the inquiry has to be whether there was a valid waiver of stacking.

Counsel for the defendants, Ryan Molitoris of Hourigan, Kluger & Quinn in Scranton, could not be reached for comment; nor could Nationwide’s attorney, John Anastasia of the Mayers Firm in Plymouth Meeting.

Judge Norton of Columbia County Breathes Life Back Into Household Exclusion

In Nationwide Property and Casualty Insurance v. Ryman, No. 673-CV-2019 (C.P. Col Co. Nov. 27, 2019 Norton, J.), the court in the Columbia County Court of Common Pleas ruled that the Pennsylvania Supreme Court’s landmark ruling from earlier this year in Gallagher v. Geico which purportedly eradicated the Household Exclusion, should not be read so broadly. 

Rather, Judge Norton of Columbia County ruled that the Supreme Court’s decision in Gallagher only served to bar insurers from using the Household Exclusion to block stacked underinsured motorist coverage where stacked coverage had been purchased, and that the eradication of the Household Exclusion did not apply in situations where stacking was voluntarily waived by the insureds.

In this matter, Nationwide filed a declaratory judgment action on the issue of coverage. The defendant insureds filed a motion for judgment on the pleadings, pointed to Gallagher, and argued that the Household Exclusion was dead.

The Court in Nationwide v. Ryman denied the insureds’ motion and held that the insureds’ interpretation of Gallagher was overly broad. Judge Norton wrote that “[t]he most fair interpretation of Gallagher is to read it in the context of its facts and in view of all of the language used by the Supreme Court, especially in [the Pennsylvania Supreme Court] citing the importance of the fact that the plaintiff selected and paid for the right to stack benefits under both policies” in the Gallagher case.

In the Nationwide v. Ryman case the court found that there was still an issue of fact to be decided on whether insureds had indeed waived stacking in the inter-policy context, i.e. the stacking to two separate policies as opposed to stacking of coverages on multiple vehicles all covered within one policy (intra-policy stacking).

Judge Norton noted that, if it were determined that stacking had not been purchased by the insureds, then the Gallagher v. GEICO case might not even apply and the case would fall under the Craley v. State Farm line of cases under which the Household Exclusion could carry the day in support of a denial of coverage.

Judg Norton noted that Craley v. State Farm, stood for the proposition that, “where there has been a valid waiver of stacking UIM benefits as to both policies, inter-policy stacking may be legitimately prohibited in a motor vehicle insurance policy.”

In the end, the insureds’ argument that the Household Exclusion was eradicated across the board by the Pennsylvania Supreme Court was rejected and the insured’s motion for judgment on the pleadings was denied. The case was allowed to proceed forward for the initial determination over whether the insureds had rejected stacking under the policies at issue.

Anyone wishing to review this decision may click this LINK

I send thanks to Attorney John A. Anastasia of The Mayers Firm, LLC in Plymouth Meeting, PA for bringing this case to my attention.

Friday, December 13, 2019

ARTICLE: 'Tis the Season to Be Civil: Lessons from 'A Christmas Story'

The below article of mine recently appeared in the November/December, 2014 edition of the Pennsylvania Lawyer Magazine and is republished here with permission.  Hope you enjoy it:

'Tis the Season to Be Civil
Lessons from 'A Christmas Story'

by Daniel E. Cummins

It’s almost that time of year again — almost Christmas Day and 24 straight hours of the movie "A Christmas Story," with little Ralphie Parker calling viewers back to their childhoods, provoking memories of the timeless, indelible and universal experiences of the holiday season.

Ralphie, narrating in his adult voice: "Christmas was on its way. … Lovely, beautiful, glorious Christmas, upon which the entire kid year revolved!" That great time of the year has come again, when, as Ralphie puts it, "We [plunge] into the cornucopia, quivering with desire and the ecstasy of unbridled avarice."

In addition to glorifying the holiday season, the movie is a gift of life lessons, some of which can even be applied to the practice of law.

* * *

Mr. Parker, reading the side of the box containing the prize he’s won: " ‘Fra-gi-ley.’ That must be Italian." Mrs. Parker: "I think that says ‘Fragile’." Mr. Parker: "Oh, yeah."

Trying to use new words in your vocabulary can cause embarrassment when more common words will suffice (um, I mean, when more common words will do). While the practice of law is filled with

Latin terms and legalese, and while some lawyers think they are fancy people who have to use fancy words just because they have a law degree, no normal person would use "heretofore" or "aforementioned" in a spoken sentence.

Speaking normally, avoiding legalese and Latin, and knowing the words you are reading or saying to others will help you to connect with a jury and, in your overall practice of law, take you further in successful interactions with others, be they jury, clients, opposing counsel or the court.

* * *

Ralphie, narrating as an adult: "My father worked in profanity the way other artists might work in oils or clay. It was his true medium."

Although the thought of using profanity in the law is often enticing, this quote does not advocate the use of such language, other than in unleashing a tirade within your mind against a vexatious opposing counsel or a cantankerous judge who has chastised or embarrassed you, just to get that anger and stress out of your system.

This quote is also offered to suggest that it pays to find a niche in a particular practice area and become a master at it. With all the loopholes and trapdoors present in the many different areas of the law, an attorney’s stress level can be reduced by sticking to fewer areas of practice in which to excel. Increasing one’s reputation in fewer areas of the law should lead to more referrals from other attorneys who dare not dabble in your area of expertise.

* * *

Ralphie, narrating as an adult: "Getting ready to go to school was like getting ready for extended deep-sea diving."

It’s a funny scene in the movie when Ralphie’s mom gets Randy, Ralphie’s younger brother, ready to go out in the cold Cleveland weather by using the universal tactic of all mothers: tugging on layers of socks, pants, shirts, coats, hats, gloves and scarves to the point that the poor kid can’t speak clearly or move his muffled arms and legs.

Layering can have a positive effect in trial preparation. Layers and layers of preparation should be applied to ensure that you know a file inside and out before you enter the courtroom. In order to make the matter properly fit your theory, each layer of your case, from opening to closing, should be neatly organized, one layer on top of the other in an orderly fashion, so the case will flow at trial. Just be sure to keep your case presentation to the salient points necessary to stay with the jury. Overdoing the layers will only serve to hamper your flexibility and muffle your message.

* * *

Ralphie: "Scut Farkus! What a rotten name. … There he stood, between us and the alley. Scut Farkus staring out at us with his yellow eyes. He had yellow eyes! So help me, God, yellow eyes."

There’s at least one in every county — a Scut Farkus-like attorney who gets off on bullying his or her way through the litigation process outside the presence of the authority figure of the court.

Unfortunately, these bullies usually train their associate attorneys to practice in the same unsavory manner, much in the way toady sidekick Grover Dill serves Scut Farkus in the movie. And so the cycle regrettably continues, as these bully attorneys abuse the rules of civility without fear of repercussions from any ethics board or judge. The Rules of Professional Conduct have no teeth in regulating civility among lawyers, and judges often ignore the consternation caused by bullying and unreasonable attorneys, not wanting to be bothered with the tedium of maintaining decorum among the attorneys inside or outside of their courtrooms. In the end, ignoring the misconduct of these attorneys ultimately reflects poorly on these particular courts.

But, as Scut Farkus learns the hard way, sometimes what goes around comes around, and, hopefully, the bully attorneys will get their due one way or the other down the line.

As noted below, "A Christmas Story" teaches us that there are at least two ways to deal with a bully.

* * *

Ralphie, narrating as an adult, describing his brother’s encounter with the bullies: "Randy lay there like a slug. It was his only defense."

As Randy lay there, the attention of Scut Farkus was fortunately diverted elsewhere. Similarly, it may pay to lie low for a day or two after first receiving a bullying voicemail, email or letter from an unreasonable and emotionally ugly opposing counsel. Bullying attorneys usually have several needless fights going on at once and it may pay not to engage immediately in response. If a response is necessary, prepare a calm, cool and collected letter to be sent by snail mail, extending the cooling-off period even longer.

More often, however, a slug-like response to such bullying is not appropriate, and standing up to the bully to protect a client’s interest is a more appropriate response.

* * *

Ralphie, narrating as an adult, describing a different kind of reaction to an encounter with the bullies: "I have since heard of people under extreme duress speaking in strange tongues. I became conscious that a steady torrent of obscenities and swearing of all kinds was pouring out of me as I screamed."
While physically pummeling or verbally going up one side and down the other of a bullying opposing attorney is (unfortunately) frowned upon in our noble profession, some bullying cannot be allowed to
go unopposed.

Unreasonable opposing attorneys usually seek out and relish verbal skirmishes as a way to compensate for and distract from their sad fears of the inferiority of their own skills, not to mention their likely lack of self-esteem and confidence.

Rather than engaging the blustery rhetoric of a totally unreasonable attorney on the phone or in person, it may be more advisable to deal with such bullying barristers at arm’s length in written confirming letters or emails to lock them into place on a particular issue and thereby prevent them from slithering out of commitments or advances made in the litigation.

Moreover, if it becomes necessary, such attorneys will usually wilt in the face of the threat of court intervention by way of a motion to compel or otherwise. One can only hope that a judge repeatedly faced with needless issues caused by a bullying attorney will someday put that attorney in his or her rightful place so the unnecessary, uncivil conduct stops.

In the end, the key is not to succumb to the jeering dares, taunts or tactics of a bullying attorney by reacting in a way that you may regret later.

* * *


Flick: "Are you kidding? Stick my tongue to that stupid pole? That’s dumb." Schwartz: "That’s ‘cause you know it’ll stick!" Flick: "You’re full of it." Schwartz: "Oh yeah?" Flick: "Yeah!" Schwartz: "Well I double-dog dare ya!" Ralphie, narrating as an adult: "Now it was serious. A double-dog dare. What else was there but a ‘triple dare you’? And finally, the coup de grace of all dares, the sinister triple-dog dare." Schwartz: "I triple-dog dare ya!" Ralphie, narrating as an adult: "Schwartz created a slight breach of etiquette by skipping the triple dare and going right for the throat!"

Just as etiquette is to be followed during the height of a playground challenge, so should etiquette be followed in the heat of a legal battle. For example, rather than skipping over professional courtesies and slapping an opponent with a discovery motion to compel on the 31st day, start with a polite "dare" to opposing counsel that his or her not answering discovery within another 30 days will provoke a motion to compel. When that time runs out, maybe even hit the opponent with a "double-dog dare" thereafter by way of a second letter noting that you will have no choice but to proceed with the motion if the responses are not promptly produced.

At later proceedings in the litigation, such as at trial, be up-front and forthright with opposing counsel regarding your plan of action, and hopefully expect the same courtesy in return. For example, let opposing counsel know your planned order of witnesses and what exhibits you intend to use.

In the end, when going toe-to-toe with opposing counsel in discovery or at trial, listen to your gut instinct and refrain from succumbing to the pressures of "dares" or tactics that might take your case in the wrong direction.

* * *

Mr. Parker: "It’s a major award." Swede: "A major award? Shucks, I wouldn’t have known that. It looks like a lamp." Mr. Parker: "Is is a lamp, you nincompoop. But it’s a major award. I won it." Swede: "Damn, hell, you say you won it?" Mr. Parker: "Yeah. Mind power, Swede, mind power."

The leg-lamp award in "A Christmas Story" is arguably one of the most iconic and recognizable movie props of all time. The lesson here is to remember that perceptions matter in life and in the practice of law. The movie shows that if such a ridiculous object can be viewed as a mere lamp by one person and yet a "major award" by another, there is always the chance that a skillful presentation of a weak legal argument or theory of a case may pass muster and even be accepted by others if you truly believe that what you are arguing for is the proper perception of the matter.

* * *

Just about everyone other than Ralphie: "You’ll shoot your eye out kid!"

In "A Christmas Story," the one present 9-year-old Ralphie desires most is a Red Ryder BB gun, but he is repeatedly rebuffed in this quest with the above quote from his mother, his teacher and even Santa Claus. In the end, however, Ralphie’s old man comes through with the gift on that glorious Christmas morning.

There’s no real lesson here for the legal world, rather only a hope that the holidays bring to all the gift of childlike joy, excitement and enjoyment of this wonderful season of the year.

Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law with more than 20 years of insurance defense experience.  He focuses his practice on motor vehicle accident cases, UM/UIM matters, insurance coverage issues, and premises liability and productsliability cases.  Attorney Cummins is also available as a Mediator under Cummins Mediation Services.  He is also the sole creator and writer of the Tort Talk Blog at www.TortTalk.com.

Source of Images and Quotes:  A Christmas Story (1983).

Thursday, December 12, 2019

A HOLIDAY GIFT FROM TORT TALK: Complimentary Copy of the Tort Talk 2019 Civil Litigation Update Booklet

Here is a LINK to a complimentary copy of the 138 page Tort Talk 2019 Civil Litigation Update booklet that I created for use at the recent Luzerne Bench Bar Conference as well as for the Lackawanna County Bench Bar Conference.  (The PBI sells its Civil Litigation Update Booklet for $69.00!  The Tort Talk Civil Litigation Update Booklet is FREE.).

The Tort Talk 2019 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and, as noted, 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 making a small donation to the Children's Advocacy Center in Scranton, your local Pro Bono/Legal Aid 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. 

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

I wish you Warm and Happy Holidays for you and your family.


Tuesday, December 10, 2019

Amendment Allowed Where Simply to Correct Name of Party (And Not To Add a New Party)

In the case of Thom v. CDM Auto Sales, 2019 Pa. Super. 315 (Pa. Super. Oct. 18, 2019 Olson, J., Strassburger, J., Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court ruled that the trial court abused its discretion in denying the Plaintiff’s Motion to Correct the Name of the Defendant Auto Sales Company in the caption and in the body of default judgment paperwork.

The court noted that the Plaintiff had failed to include “LLC” in the name of the Defendant in the pleadings and in the default judgment paperwork. The court ruled that there was no question that the Plaintiff had sued the right business entity but had just failed to use the proper LLC designation.

The appellate court additionally found that the Defendants did not claim or demonstrate any prejudice or surprise. It was additionally noted that the Defendants had participated in the proceedings by filing an Answer as well as a Petition to Open the Default Judgment.

The Superior Court also rejected the trial court’s ruling that Rule 1033 requests for amendments did not apply to judgments. Rather, the court noted that the rule did apply to allow for amendments of the entry of judgments where the amendment is made to simply correct the name of a party (and not to add a new party) if the amendment was made within 90 days of the expiration of the applicable statute of limitations.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Friday, December 6, 2019

Court Rules that Where Carrier Has Paid the Benefits, There Can Be No Breach of Contract

In the case of Merrone v. Allstate Vehicles & Property Ins. Co., No. 3:18-cv-193 (W.D. Pa. Oct. 21, 2019 Gibson, J.), the court granted summary judgment in favor of the carrier in a bad faith action based primarily on allegations by a Plaintiff that there was no evidence to support the carrier’s lengthy investigation in an alleged arson case. 

According to the Opinion, after the Plaintiff’s house burned down, the carrier conducted a lengthy, detailed and wide-ranging arson investigation before ultimately paying the full benefits under the policy. 

The Plaintiff brought a breach of contact action for the delay payment and bad faith claim alleging that there was no evidence to support the investigation. As noted, summary judgment was granted on both claims. 

The court indicated that, “where the insurance company has paid the benefits under the policy, the insured cannot maintain an action for breach of contract.” 

The court otherwise held that payment by the carrier “negates any breach of contract action” where the carrier has paid the full policy limits and where there is no other evidence of failure to compensate. 

On the bad faith claim, the court held that an insurer can conduct investigations of questionable claims without acting in bad faith. The court found that there were red flags present in this case that were sufficient to warrant the carrier’s detailed investigation into the claims presented. 

The court in Merrone additionally held that while a payment delay can be the basis for bad faith, or a factor in a bad faith claim, the delay in and of itself might not constitute bad faith. Moreover, the court emphasized that, in order to proceed on a claim of bad faith based upon a delay in payment, an insured must produce clear and convincing evidence to establish that the carrier knew that its delay of payment was baseless. 

The record before this court established that the carrier reasonably believed that there were potential grounds to deny the Plaintiff’s claim which warranted the further investigation that was completed. 

The court also merely found that the carrier had a reasonable basis to conduct its investigation, to reasonably pursue all avenues of that investigation as new information arose, and to continue to investigate until it decided to pay the claim after the matter was fully investigated.

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

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

Tuesday, December 3, 2019

Allegations of Recklessness Allowed to Stand Based Upon Cell Phone Use While Driving

In the case of Henderson v. Palmer, No. 10035 of 2019, C.A. (C.P. Lawrence Co. Oct. 7, 2019 Cox, J.), the court denied a Defendant’s Preliminary Objections to the Plaintiff’s claims of reckless conduct based upon a Defendant driver allegedly using a cell phone and/or texting, and/or using “some other electronic device or for other reasons, in direct violation of applicable law.”

This matter arose out of a motor vehicle accident that occurred when the Plaintiff’s vehicle was rear-ended by the Defendant’s vehicle.

The court in Henderson reviewed decisions from Oklahoma and Delaware involving a Defendant’s use of a cell phone during the course of an accident. After reviewing those cases, the court in Henderson found that allegations asserting that the Defendant was using a cell phone while driving and was otherwise distracted from observing the roadway while operating a vehicle at a high rate of speed were sufficient to permit allegations of recklessness to survive Preliminary Objections.

However, the court granted the Defendant’s Preliminary Objections to the Plaintiff’s negligence per se allegations given that the Plaintiff failed to provide any factual allegations demonstrating any conduct to establish the violation of the statutes alleged.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Superior Court Reverses Entry of Summary Judgment in Slip and Fall Case

Tort Talkers may recall the previous blog post on the Dauphin County Court of Common Pleas decision in the case of Gumby v. Karns Prime and Fancy Food, LTD. in which that court granted summary judgment in a supermarket slip and fall case.

As an update it is noted that the Pennsylvania Superior Court just issued a non-precedential decision at No. 1030 MDA 2019 (Pa. Super. Dec. 30, 2019 Panella, P.J, Colins, J., and Kunselman, J.)(Op. by Kunselman, J.)(Non-precedential) reversing the trial court's granting of summary judgment. 

The appellate court found that issues of fact required the case to go to the jury.  More specifically, the appellate court pointed to admissions by store representatives that the alleged condition was of a type the recurred frequently (grapes falling to the floor) such that a jury may find that such incidents recurred so frequently that the store could be said to have had actual notice of the problem.

The court also noted that this evidence created an issue of fact as to whether or not the store took reasonable steps to prevent this situation from occurring again and again.

Anyone wishing to review this decision may click this LINK.

Monday, December 2, 2019

Case of First Impression Decided by Judge Nealon on Medical Marijuana Issue in Civil Litigation Context

Addressing a case of first impression in the case of Palmiter v. Commonwealth Health Systems, Inc., No. 19-CV-1315 (C.P. Lacka. Co. Nov. 22, 2019 Nealon, J.), Judge Terrence R. Nealon reviewed Preliminary Objections filed by employers in this employment litigation raising a novel issue that has not yet been addressed by any state or federal court in Pennsylvania, that being the question of whether §2103(b)(1) of the Medical Marijuana Act (“MMA”), 35 Pa. S. §10231.2103(b)(1), which states that “[n]o employer may discharge… or otherwise discriminate or retaliate against an employee…solely on the basis of such employee’s status of an individual who is certified to use medical marijuana” creates a private cause of action for a medical assistant who was terminated by her health care employers for prescribed use of medical marijuana while not working in her place of employment.

The Defendants noted that the Department of Health has the exclusive authority to enforce the MMA’s provisions such that the employee’s sole remedy for her termination should be to seek the assessment of a civil penalty by the Department of Health.

After his review of the law, Judge Nealon held that there was nothing the MMA or any related regulations that vests the Department of Health, or any other state agency, with the authority to enforce the Act against private employers that have not chosen to voluntarily take part in the program.

The court also noted that the anti-discrimination provisions in the act would be rendered meaningless if an aggrieved employee could not pursue a private cause of action and seek to recover compensatory damages from an employer that violates the MMA.

As such, the court recognized an implied right of action under the act and, therefore, denied the employers’ demurrer to the employee’s private cause of action based upon §2103(b)(1).

In other decisions of note in this case, Judge Nealon did sustain demurrers to claims for invasion of privacy/intrusion on seclusion based upon the employee’s contention that her employers discovered the identity of her treating physician from their review of her medical records.

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

Bring Your Case to a Close Before the End of the Year

Need help bringing your case to a close?  Please consider utilizing 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 27, 2019


Sending you warm wishes for a Happy Thanksgiving for you and your family.

Thank you for reading and supporting Tort Talk.

With gratitude, 
Dan Cummins

Monday, November 25, 2019

Failure To Provide 6 Month's Notice to Government Defendant Should Be Raised as a New Matter Defense

In the case of Meese v. Slater-Bailey, No. 10342 of 2019, C.A. (C.P. Lawrence Co. Oct. 9, 2019 Motto, J.), the court held that an issue regarding whether a Plaintiff provided six (6) months’ notice to a governmental entity Defendant after the date of an injury regarding the claims presented was an issue that was required to be raised by way of an Answer and New Matter and not Preliminary Objections.

In this case, the Plaintiff was allegedly injured when her vehicle was struck by a school bus.

The Defendant school district filed Preliminary Objections to the Complaint raising the sole issue of whether the Complaint was legally insufficient due to the Plaintiffs’ alleged failure to provide notice to the school district and the Attorney General within six (6) months of the date of injury of the potential claim, as required by 42 Pa. C.S.A. §5522. That statute provides that an injured party must given written notice to the governmental entity Defendant prior to commencing a civil action.

The court ruled that the failure to provide the required §5522 notice was not a jurisdictional defect that could be raised by way of Preliminary Objections, particularly where the Plaintiffs were not required to plead compliance with that statute as an element of any cause of action. Rather, the court noted, the failure of written notice was an affirmative defense that a Defendant should plead in a New Matter under Rule 1030 of the Rules of Civil Procedure.

As such, the court overruled the Defendant’s Preliminary Objection and ordered the Defendant to proceed with the filing of the Answer and New Matter to the Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (October 29, 2019).

Thursday, November 21, 2019

Pennsylvania Superior Court Finds That Service Was Properly Completed Even Though Green Return Receipt Lost

In the case of Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting), the Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.

This case arose out of a motor vehicle accident.

The appellate court found that the Plaintiff had offered sufficient evidence to show that he complied with the requirements of service of process under the Pennsylvania Rules of Civil Procedure. The Superior Court noted that, given that the Plaintiff had met his burden of proof on the issue of service, the burden then shifted to the Defendant driver, who had failed to offer any evidence to refute the Plaintiff’s evidence that service complied with the Rules of Civil Procedure.

The central issue in the matter involved the Plaintiff properly serving an out of state Defendant by way of a certified letter, return receipt requested. According to the Opinion, the green return receipt card was lost by the United States Post Office. However, the Post Office supplied tracking documentation that showed delivery of the letter.  Also produced by the Post Office was a scanned signature of the person who accepted the letter.

There was also additional evidence presented that the Defendant driver, who was a cousin of the Plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the trial court did not view the evidence in a light most favorable to the Plaintiff as the non-moving party when it dismissed the case. The appellate court also viewed the lack of a green return receipt card as a mere technical defect. The Superior Court additionally reiterated that there was evidence that the Defendant had notice of the action.  As such, the trial court's dismissal of the lawsuit was reversed.

Anyone wishing to review a copy of the Majority decision in Sawyers may click this LINK.  The Dissenting Opinion may be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Wednesday, November 20, 2019

Pennsylvania Supreme Court Mandates Motions Practice for First Party PIP Medical Exams

The Plaintiff’s bar scored yet another victory at the Pennsylvania Supreme Court level with decision issued by the court in the combined matters of Sayles v Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.) and Scott v Travelers.

The case involved the practice of automobile insurance companies requesting insureds to attend PIP medical exams as may be required by the terms of the insurance policy.

The Plaintiffs argued that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is entitled “Mental or physical examination of a person."

That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The Plaintiff’s argument in Sayles was that Section 1796 required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam and that even when good cause is shown, it is the court and not the insurer who would select the examiner.

The Pennsylvania Supreme Court rejected the current practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions and ruled that insurers must, instead, file a Petition with the Court and demonstrate good cause. Also, it will now be an independent judge who will select the medical examiner and not the carrier.

The Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day.  See fn. 13.

Anyone wishing to review the Majority Opinion by Justice Todd may click this LINK.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott B. Cooper for bringing this case to my attention.

Commentary:  The Pennsylvania Supreme Court's decision in this regard appears to be of little moment as it is a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

Notably, to the extent that motions practice will now be required for those typical cases where an auto carrier wishes to secure an IME as part of the claims process, the Pennsylvania Supreme Court did not provide any guidance on how the already overburdened trial courts are to deal with the possible onslaught of new litigation that may result in this regard by plaintiffs who insist that the now required motions practice be followed.  Nor was any guidance provided by the Supreme Court to the trial court judges on how to select an appropriate doctor to complete the requested examination and/or what the manner, scope or conditions of the exam should be in any given case.

In the end, it appears that what was a non-issue has now been turned into a monumental problem for the trial courts going forward.