Wednesday, July 17, 2019

Does Pennsylvania Recognize Strict Liability Claim for Manufacturing Defect of a Prescription Medical Device?


In the case of Rosenberg v. C.R. Bard, Inc., No. 18-4767 (E.D. Pa. June 25, 2019 Robreno, J.), a products liability pelvic mesh lawsuit, a federal district court noted a need for guidance from the Pennsylvania Supreme Court on a recurring issue in strict liability cases.

In his Opinion, Judge Eduardo C. Robreno noted that he was “presented with an important question of state law that has often been raised but has effectively evaded review by the Pennsylvania Supreme Court:  does Pennsylvania law recognize a strict liability claim for a manufacturing defect of a prescription medical device?”

Judge Robreno predicted “that the answer to this question is ‘no.’”  

However, given the growing debate by trial courts regarding this issue, he certified the issue to the Third Circuit Court of Appeals.

In addition to certifying the issue to the Third Circuit, Judge Robreno dismissed the Plaintiff’s strict liability claims with prejudice, but allowed her to refile her negligence claims.

Anyone wishing to review this decision may click this LINK.

Source:  Article:  “Federal Judge Highlights Lack of Pa. Precedent on Medical Device Strict Liability” by P.J. D’Annunzio of the Legal Intelligencer (June 26, 2019).

Monday, July 15, 2019

Trial Court Rules that Appellate Issues Waived


In the case of U-Save Auto Rental of Lansdale, Inc. v. Highline Auto. Group, No. 2016-CV-06620  (C.P. Montg. Co. April 23, 2019 Rogers, J.), the trial court wrote a Rule 1925 Opinion for the appellate court asserting that the trial court’s decision that the Defendant had waived all issues on appeal should be upheld.  

This matter arose out of a breach of contract case involving a business consultation contract.   

In this matter, the Defendant failed to file a post-trial motion after a bench trial.   The court noted that the failure to file a post-trial motion under Pa.R.C.P. 227.1 generally resulted in a waiver of all issues on appeal.  

The trial court additionally noted that the Defendant failed to file a Concise Statement of Errors Complained of on Appeal in a timely fashion.   The court noted that, absent any applicable exception to the general rule, the failure to comply with the requirements of Pa.R.A.P. 1925(b), pertaining to the requirement to file Concise Statement of Errors on Appeal when ordered to do so by the court also resulted in an automatic waiver of all issues on appeal.  

In its Rule 1925 Opinion, the trial court urged the appellate court to quash the Defendants’ appeal.  

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

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 21, 2019). 




TORT TALK TIPS: Do Focused Edits


As Justice Louis Brandeis of the United States Supreme Court once said, "There is no great writing, only great rewriting."

Whether editing a letter, motion, or brief, or any writing for that matter, it pays to do more than one edit.

Do an initial edit of the whole document and then put the written product aside for a bit and come back to it with several focused edits.

Perhaps one focused edit would be to only review the headings and subheadings to see if they can be made better.

Another focused edit could focus on the citations only to make sure that they are in proper format and referencing the proper pages.

Another focused edit could focus on punctuation only, such as making sure that you have commas in the right place and a period at the end of every sentence

Friday, July 12, 2019

ARTICLE: Quandary on Whether Limited Tort or Full Tort Applies to Uber Drivers



The below article of mine was published in the July 2, 2019 edition of the Pennsylvania Law Weekly and is republished here with permission:

Quandary on Whether Limited Tort or Full Tort Applies to Uber Drivers



By Daniel E. Cummins | June 27, 2019
Pennsylvania Law Weekly

As the use of Uber and Lyft rideshares become more prevalent in Pennsylvania, it is more likely that motor vehicle accidents involving such drivers will increase and thereby give rise to novel issues of law.

One such issue is whether an Uber or Lyft driver who has elected the limited tort option under his own personal automobile insurance policy will be deemed to be a full tort plaintiff if he is involved in an accident while driving as an Uber or Lyft driver. The quandary in this regard is whether the Uber or Lyft driver’s use of his own personal vehicle for business purposes triggers an exception to the limited tort option.

Limited Tort

Under the tort option statute found at 75 Pa.C.S.A. Section 1705, carriers are required to secure from their customers a written election of either full tort coverage or limited tort coverage whenever a personal automobile insurance policy is sold.

Full tort coverage, sold at a higher premium, allows an insured to pursue a claim for noneconomic damages, otherwise known as pain and suffering damages, without regard for the types of injury sustained by the plaintiff.

On the other hand, with limited tort coverage, an insured will pay a lower premium but, in exchange, agrees that he cannot recover pain and suffering damages unless and until the injured insured shows that he has sustained a serious injury as a result of the accident. A serious injury in this context is a injury that results in a substantial impairment of a body function, serious permanent disfigurement or death.

The grey area for Uber and Lyft drivers is this—where person has chosen the limited tort alternative, there is an exception to the rule where that driver is operating a commercial vehicle as opposed to a “private passenger vehicle.” The question as to whether the use of a personal vehicle as an Uber or Lyft vehicle changes that private vehicle into a commercial vehicle has not been answered by the statutory law or the courts of Pennsylvania to date.

Status of Uber or Lyft Drivers

The legal issue of the tort option coverage applicable to Uber and Lyft drivers is complicated by the fact that such drivers use their personal vehicles in different capacities at different times. The lingo in the field is that Uber and Lyft drivers have different periods, or types, of driving statuses.

Period 1 is considered to be when the driver is driving their vehicle only in a personal capacity and without regard to the fact that they, at other times, are “on the app” and looking for fares to pick up as Uber or Lyft drivers.

Period 2 is when an Uber or Lyft driver is “on the app” and ready and willing to pick up a fare to drive somewhere but has not yet been summoned and when the driver has been summoned and is on the way to pick up the fare.

Period 3 is considered to be when the Uber or Lyft has a customer in the car as a passenger.

Statutes on Uber/Lyft Insurance

The statutory law pertaining to the mandatory requirements for insurance coverages for Uber and Lyft drivers can be found at both 66 Pa.C.S.A. Section 2601, et al., and 53 Pa.C.S.A. Section 57A01, et al., and is titled “Transportation Network Companies.”

The new law defines what a transportation network company is and identifies the relevant driver(s) included under the ambit of the statute. This new law also outlines a list of qualifications and standards that the company must meet before being permitted to operate in the commonwealth of Pennsylvania.

In addition, the law provides for the mandated minimums for liability insurance coverages and first-party benefits coverages depending on which scenario applies.

These scenarios include where the driver of the vehicle does not have passengers and is logged into the transportation network company network (presumably applying to the situation where the driver is on the way to pick up a fare), and where the driver of the vehicle does have passengers.

It is suggested that automobile accident litigators should review these statutes to become aware of these mandatory minimum liability coverages and first-party insurance coverages. These coverages were reviewed in a Nov. 16, 2017, Pennsylvania Law Weekly article titled “New Law: Mandated Coverages for Uber and Lyft Vehicles” by Daniel E. Cummins and Stephen T. Kopko.

According to Uber’s website, companies that are issuing these types of insurance policies include, at a minimum, James River Insurance Co., Progressive, Allstate and Farmers Insurance.

What the new law does not cover is the limited tort vs. full tort question for the separate insurance policies that are issued specifically for Uber and Lyft drivers over and above the personal automobile insurance such drivers may already have on their vehicles.

As such, there may be certain Uber and Lyft drivers who have elected the limited tort option under their personal automobile insurance policy and who have additional insurance Uber or Lyft-type policies for their commercial or business use of their vehicle that are silent on the tort option question.

A Requirement of Statutory Construction

Given that there is no statutory law or case law on point to answer the question presented, it appears that, if faced with the issue of whether an Uber or Lyft driver who has elected the limited tort option should nevertheless be considered a full tort plaintiff, the courts will have to engage in a construction of the statutes in place as compared to the insurance policies in question.

To the extent that a review of this question of law requires the court to interpret Pennsylvania’s Motor Vehicle Financial Responsibility Law, the courts can be guided by the Statutory Construction Act, 1 Pa.C.S. Sections 1501-1991.

Pursuant to the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly’s intention. When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.

Turning to the applicable statutes, under 75 Pa.C.S.A. Section 1705(d)(3), it is provided that “an individual otherwise bound by the limited tort election shall retain full tort rights if injured while an occupant of a motor vehicle other than a private passenger motor vehicle.”

Under 75 Pa.C.S.A. Section 1702, a ‘private passenger motor vehicle’ is defined as a “four-wheel motor vehicle, except recreational vehicles not intended for highway use, which is insured by a natural person and … is a passenger car neither used as a public or livery conveyance nor rented to others …”

Under these statutory provisions, it is likely that a court would rule that a car or truck used by an Uber or Lyft driver is obviously a “four-wheel motor vehicle” that is “insured by a natural person” by virtue of the driver’s personal automobile insurance coverage. See 75 Pa.C.S.A. Section 1702.

However, according to the same statutory language, the vehicle would fall out of the scope of the definition of a private passenger vehicle whenever that vehicle is “used as a public or livery conveyance.” A livery is otherwise known as a vehicle for hire.

Therefore, it would appear that, if faced with the issue, the courts could find that, although an Uber or Lyft driver had selected the limited tort option under their own personal policy, such a driver would nevertheless be deemed to be a full tort plaintiff if involved in an accident while the driver had a passenger in the car as a paying fare on a particular trip.

However, a wrinkle in this regard is that it could also be argued that, once the car is being used as a livery or a hired car, then that vehicle would fall within a business use exception under the personal automobile insurance policy such that that personal policy would not be applicable to the accident.

This would leave the plaintiff with only the Uber or Lyft liability policy in place under which no tort option election is apparently required. Such a plaintiff driver may then arguably have no tort option election in place and may, as a result, be found to be covered by the full tort option.

It also appears that, if a limited tort Uber or Lyft driver, was not “on the app” and was driving their vehicle solely for personal reasons, that driver would still be a limited tort plaintiff if involved in an accident on that particular trip.

Other grey areas in this regard involve those cases where the Uber or Lyft driver is driving around while “on the app” waiting for a fare to contact them for a ride as well as when the Uber or Lyft driver has received a message from a fare and is on the way to pick up that person for a ride. The courts may struggle with these scenarios in determining whether that Uber or Lyft driver should be deemed a limited tort or full tort plaintiff where that driver had previously elected the limited tort option.

In the end, it will surely be interesting to see how these novel areas of law pertaining to motor vehicle accidents involving Uber and Lyft drivers begin to play out in the courts across the commonwealth.

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

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

Thursday, July 11, 2019

Please Consider CUMMINS MEDIATION SERVICES As a Way To Bring Your Case to a Close





Need help bringing your case to a close?  Wherever you are, 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, July 10, 2019

Court Finds No Evidence to Support Claims of Liability Against Adjacent Landowner Liability for Plaintiff's Injury on Neighbor's Property

In the case of Slavinski v. Estate of Gallatz, No. 13-CV-1772 (C.P. Lacka. Co. July 5, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed issues of alleged adjacent landowner liability for injuries that occurred on a neighbor's property.

According to the Opinion, the Plaintiff allegedly snagged her pants on a neighbor's chain link fence and fell forward onto the surface of the premises owned by that neighbor but injured her arm on the protruding tip of a cemetery grave marker that was embedded in the ground on the neighbor's property.

The Plaintiff sued the neighbor who owned the chain link fence, the nearby cemetery, and the church that owned and operated the cemetery.

Following discovery, the church and the cemetery filed a motion for summary judgment asserting that the Plaintiff had failed to uncover any evidence to show how or when the grave marker became embedded in the neighbor's property or any evidence of actual or constructive notice on the part of the cemetery or church in this regard.

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon noted that, while Pennsylvania tort law generally recognizes that landowners may be liable to others for injuries caused by dangerous conditions on the landowner's property, the law does not generally impose a duty or responsibility upon an adjacent landowner to correct or warn others of any defective conditions on a neighbor's property which the adjacent landowner did not create.

Finding no triable issues against the cemetery or the church, the court granted summary judgment in their favor.

Anyone wishing to review this Opinion by Judge Nealon may click this LINK.

Summary Judgment Granted in Slip and Fall Case


In the case of Gumby v. Karns Prime and Fancy Food, Ltd., No. 2017-CV-7013 (C.P. Dauph. Co. June 4, 2019 Cherry, J.), the trial court in Dauphin County entered summary judgment in a slip and fall case involving alleged liquid and/or grapes on the floor of a supermarket.  

According to the Opinion, the Plaintiff testified that she was walking at a normal pace, looking straight ahead, when she suddenly and unexpectedly fell to the floor.   The Plaintiff did not see anything on the floor prior to her fall. She also did not know, when she landed on the floor, what, if anything caused her to fall.   After the incident, the Plaintiff believed that she slipped on liquid from smashed grapes based upon a statement from one of the store employees, who assisted the Plaintiff after her fall.  

In granting summary judgment, the court noted that, given the Plaintiff’s admission that she had no evidence that the Defendant created the allegedly dangerous condition, the Plaintiff had to show that the Defendant had actual or constructive notice of the condition that allegedly caused her to fall.  

Without any evidence to support such a claim, the Plaintiff asserted that the Defendant had notice because the Defendant store knew or should have known that grapes may fall on the floor because of the packaging.  The court in Dauphin County noted that this theory had been rejected previously by the Pennsylvania Superior Court in the case of Meyers v. Penn Traffic, 606 A.2d 926, 930 (Pa. Super. 1992) (suggestion by the Plaintiff that either an employee or a customer dropped a grape amounted to mere speculation and did not create any triable issues).  

In this Gumby case, the court also stated that the Plaintiff’s testimony of shopping cart tracks in the area of the crushed grape or liquid equated to evidence supporting an allegation as to how long the grape or liquid was allegedly on the floor. The court rejected this theory as speculation as the alleged track could have occurred in the moments before the Plaintiff’s fall, which would have provided insufficient notice to the Defendant of any such condition.  

The court additionally noted that the Plaintiff could not satisfy the requirement of constructive notice by asserting that the Defendant lacked an adequate floor maintenance policy.   The Gumby court stated that evidence of a clean-up policy did not amount to facts as to how long the allegedly dangerous condition existed.

The court noted in Gumby also rejected the Plaintiff’s assertion that liability could be established under an argument that the Defendant’s policy that all employees have a general responsibility to inspect the floors amounted to no policy at all.  In this regard, the trial court pointed to Pennsylvania Supreme Court precedent indicating that a store owner was not an insurer of the safety of business invitees and only owed a duty of reasonable care under the circumstances, that is, to correct unsafe conditions discoverable through the exercise of reasonable care.  

Last but not least, the court noted that the Nanty-Glo rule did not preclude the entry of summary judgment as that rule was inapplicable where, as here, the Plaintiff is found to have failed to establish a prima facie case of liability given that the Plaintiff admitted that she did not know how the grape or liquid came to be on the floor or how long it was there.  

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

Tuesday, July 9, 2019

Eastern District Court Rules that Section 1734 UM/UIM Sign Down Form Survives Addition of Vehicles to Policy



In the case of Alcedo v. State Farm Mut. Auto. Ins. Co., No. 18-4215 (E.D. Pa. June 18, 2019 Savage, J.), the court was faced with a declaratory judgment action in which the question was  whether an automobile insurer must obtain a new writing “signing down” uninsured and underinsured motorist (UM/UIM) coverage from bodily injury liability limits under § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) when the insured adds another vehicle to the policy.

The Alcedo court noted that the Pennsylvania Supreme Court has not decided the issue.

The court also noted that, in a non-precedential opinion, the Third Circuit has held that a §1734 sign down of UM/UIM coverage continues in effect after bodily injury liability limits are increased.

It was also noted that several Pennsylvania district courts have held that a §1731 total rejection, rather than a reduction under §1734, of UM/UIM coverage remains valid even when a vehicle is added to the policy. Based on the rationale of these cases, the Alcedo Court concluded that a §1734 sign down survives the addition of vehicles to the policy.

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

I send thanks to Attorney David R. Friedman of the King of Prussia office of Forry Ullman for bringing this case to my attention.

Judge Pappert of Eastern Federal District Court Rules that Plaintiff's Post-Gallagher Efforts to Revive Old UIM Claim Denied Under Household Exclusion Time Barred



Another post-Gallagher Household Exclusion has been issued by a judge in the Eastern Federal District of Pennsylvania -- this one favoring the carrier's statute of limitations argument on a plaintiff's effort to revive an old UIM claim that was previously denied by the carrier under an application of a Household Exclusion in the policy.

In O'Brien v. GEICO, No. 19-01920 (E.D. Pa. July 3, 2019 Pappert, J.), a plaintiff sued GEICO for breach of contract and bad faith based upon allegations that GEICO breached the contract by applying the Household Exclusion contained in the policy.

With the suit being originally filed in Philadelphia County Court, GEICO removed the case to the Federal District Court for the Eastern District of Pennsylvania.

GEICO then filed a motion to dismiss based upon a statute of limitations argument.

By way of background, the plaintiff was injured back on May 31, 2014 while operating a motorcycle which was not covered by the GEICO policy at issue in this matter.  Although the opinion does not explain, the plaintiff presumably recovered from the tortfeasor, then recovered under the UIM policy that covered his motorcycle.  He then likely turned to another UIM policy under which he was insured but which covered a separate vehicle in the same household.

The court's Opinion does explain that, following that accident, the plaintiff presented a UIM claim to GEICO under a separate policy with GEICO.  That claim was denied by the carrier on September 19, 2014 under an application of the Household Exclusion in the policy.

Fast forward to January 23, 2019 at which point the Pennsylvania Supreme Court issued its Gallagher v. GEICO decision in which it found the GEICO Household Exclusion to be void as violating the stacking statute under the MVFRL (in footnote 8 the Pennsylvania Supreme Court noted that it was voiding the Household Exclusion across the board and not just in the Gallagher case).

After the issuance of this Gallagher v. GEICO decision by the Pennsylvania Supreme Court, the plaintiff in this O'Brien case revived his previous UIM claim and requested, on February 12, 2019, that GEICO now tender to him the $100,000 UIM limits under that policy.  GEICO denied the demand on March 1, 2019.

The plaintiff filed this breach of contract and bad faith action against GEICO on April 3, 2019.  The plaintiff alleged that GEICO had breached the insurance contract by previously applying the Household Exclusion and denying the plaintiff's claims back on September 19, 2014.

Judge Gerald J. Pappert of the Eastern District granted GEICO's motion to dismiss after finding that this plaintiff could have made the same arguments as made in the Gallagher v. GEICO case before the four year statute of limitations applicable to his breach of contract claim had expired.  The court cited to recent case law holding that the statute of limitations in this context begins to run when a UIM claim is denied by the carrier.

More specifically, Judge Pappert noted that, with GEICO's original denial of the claim being back on September 19, 2014, the statute of limitations expired on September 19, 2018 and the Plaintiff did not file this suit until April 3, 2019.

Notably, Judge Pappert also ruled that the discovery rule did not apply in this matter to extend the statute of limitations.  As noted, the court found that this plaintiff could have raised the same types of issues and arguments as asserted in the Gallagher v. GEICO  when his claim was denied.

The Court in this O'Brien case went on to also hold that the plaintiff's bad faith claim was also barred by the statute of limitations.  The court additionally found that the plaintiff's bare bones and conclusory allegations of bad faith were insufficient to survive the F.R.C.P. 12(b)(6) motion to dismiss challenge.

Please click this LINK to view the O'Brien decision.

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

Monday, July 8, 2019

Amazon.com Deemed to Be a "Seller" Capable of Being Sued Under Pennsylvania Products Liability Law



In the case of Oberdorf v. Amazon.com, Inc., No. 18-1041 (3d Cir. July 3, 2019 Shwartz, J., Scirica, J., Roth, J.) (Op. by Roth, J.), the Third Circuit Court of Appeals reversed the lower court and held that Amazon.com may be sued as a "seller" in products liability cases.

The case arose out of an incident during which the Plaintiff was injured when a retractable leash she was using while walking her dog allegedly malfunction, snapped back, and caused permanent injury to the Plaintiff's eye.

The federal appellate court in Pennsylvania ruled that Amazon.com was a "seller" as that term was defined in the Restatement (Second) of Torts and was, therefore, subject to potential strict products liability.  As such, under this decision, the online retail giant may be potentially liable under Pennsylvania products liability law for defective products sold by third party vendors through Amazon.com.

With this decision, the Third Circuit overruled the decision by a Federal Middle District Court Judge who had predicted that, if faced with the issue, the Pennsylvania Supreme Court would rule that Amazon.com did not meet the definition of a "seller" under the applicable strict products liability law.

As noted by Max Mitchell in his July 3, 2019 article in the Legal Intelligencer entitled "Amazon May Be Sued in Products Liability Cases Stemming From Third Party Vendor Sales, 3rd Circ. Rules," which article brought this decision to my attention, the Oberdorf case contributes to a split of authority amongst the Federal Circuit Courts.  As such, this issue certainly may become one to be reviewed by the United States Supreme Court some day.

Anyone wishing to review the Third Circuit Court of Appeals decision in Oberdorf may click this LINK

The Tort Talk post on the District Court's previous decision can be viewed HERE.

Friday, July 5, 2019

Appointment of Attorney Kelly Gaughan to Judgeship on Pike County Court of Common Pleas Confirmed

Pike County Courthouse

Here's a LINK to a local news article from northeastern Pennsylvania reporting on the Pennsylvania Senate confirming the appointment of Attorney Kelly Gaughan to take over a vacancy on the bench of the Pike County Court of Common Pleas.  The vacancy was created when Judge Joseph Kameen retired from the bench.

Attorney Gaughan, who won both sides of the May, 2019 primary election for the position, expects to be sworn in for the appointment in September of 2019 and serve out the remainder of the year.  She will be the only candidate for the position on the November, 2019 ballot.

Wednesday, July 3, 2019

Gallagher v. GEICO Household Exclusion Decision Extended Yet Again by Eastern District Federal Court



The Pennsylvania Supreme Court’s monumental decision in Gallagher v. GEICO eradicating the Household Exclusion continues to be expanded by the Federal District Court Judges in the Eastern District of Pennsylvania.
In Gallagher v. GEICO, the Pennsylvania Supreme Court ruled that the Household Exclusion was void in a case in which the same carrier had issued both insurance policies at issue, i.e., the policy that covered the vehicle the plaintiff was operating at the time of the accident and another policy on another vehicle in the same household, and where stacking had not been waived with respect to either of the policies.
In the case of Donovan v. State Farm Mut. Auto. Ins. Co., No. 17-03940 (E.D. Pa. June 28, 2019 McHugh, J.)(Mem. Op.), the eradication of the Household Exclusion by the Pennsylvania Supreme Court in Gallagher v. GEICO was extended to apply to cases even where an insured had waived stacking on both policies at issue.
In Donovan, a plaintiff was injured while riding his motorcycle.  The Plaintiff had a motorcycle policy with State Farm providing unstacked coverage of $25,000 in UIM benefits on the motorcycle.
The plaintiff lived with his mother who had her own State Farm policy with unstacked UIM benefits of $100,000 per person.
State Farm tendered the $25,000 unstacked UIM limits under the motorcycle policy but denied the claim under the mother’s policy on the basis of the Household Exclusion in the policy and on the basis of the mother's waiver of stacking.
Judge McHugh of the Eastern District Federal Court found that the Plaintiff was entitled to recovery the UIM coverage under the mother’s policy.  
The court found that the waiver of stacking utilized by State Farm only served to waive intra-policy stacking and not inter-policy stacking, as was at issue in this case involving separately issued insurance policies to different named insureds.
The Court also held that, even though the policy at issue provided for unstacked coverage, the Gallagher v. GEICO decision still applied to render the Household Exclusion in the State Farm policy to be invalid.  Judge McHugh also went on to offer his assessment that the Gallagher v. GEICO decision is not to be limited to its facts.
Anyone wishing to review the Donovan Opinion may click this LINK.  The companion Order can be viewed HERE.

To review the recent trend of Household Exclusion cases reported here on Tort Talk, please go to Tort Talk at www.TortTalk.com, scroll all the way down the right hand side until you get to the "Labels," and then scroll down to the label of "Household Exclusion" and click on that label.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this decision to my attention.  Please consider joining Scott Cooper and myself for a PBI CLE Webinar on the Gallagher v. GEICO decision and its progeny on July 8, 2019 at noon.  More details are provided in the separate Tort Talk post from today.

Registration Open for Gallagher v. GEICO Webinar Set for July 8th at Noon




The Pennsylvania Supreme Court's January 2019 decision in the case of Gallagher v. GEICO has reversed many years of precedent and created a seismic shift in the law.

At the request of the Pennsylvania Bar Institute (PBI), Attorneys Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer and Daniel E. Cummins of the Scranton, PA law firm of Foley, Comerford & Cummins, have developed this engaging 1-hour live webinar, reviewing the history of the law on the validity of the Household Exclusion in automobile insurance policies in Pennsylvania.

The fallout from the Gallagher v. GEICO decision will be reviewed, including whether the decision will have any retroactive effect.

The Live Webinar will take place on Monday, July 8, 2019 from noon to 1 p.m.  Attendees will earn 1 substantive CLE credit.

Please consider registering for this CLE Webinar that you could listen to and view a powerpoint presentation from your own desk.

Here is a LINK to the Registration page on the PBI's website.

Thanks for considering this CLE opportunity.

Tuesday, July 2, 2019

Lessons From a Criminal Court Decision on Authentication of Social Media Evidence at Trial


In the case of Commonwealth v. Danzey, 2019 Pa. Super. 152 (Pa. Super. May 9, 2019 Bowes, J., Shogan, J., Kunselman, J.) (Op. by Shogan, J.), the court addressed the admissibility of Facebook and Instagram posts in a criminal case.   The court noted that such evidence may be authenticated under Pa. R.E. 901 pertaining to authentication of evidence.   

It is likely that, if such issues were addressed in a civil court proceeding, the courts will issue a similar ruling.  

In this case, the Defendant was charged with stalking and harassment and had filed a pre-trial motion to exclude 16 electronic communications directed at the victim, including Facebook and Instagram posts.  

After reviewing previous criminal court decisions including In Re: Interest of F.P., involving computerized instant messages, Commonwealth v. Koch, involving cell phone text messages, and Commonwealth v. Mangel, involving Facebook posts, the court noted that the evidence in this matter was properly admitted.  

In this case of Commonwealth v. Danzey, the district attorney had presented evidence that the Defendant owned the relevant social media accounts.  

There was also additional corroborating  evidence that the Defendant was indeed the author of the posts.   Each post was noted to contain clues that linked the Defendant to the victim and referenced their relationship.    

The court noted that the clues in the posts, taking together with the testimony provided by the victim’s sister, supported the conclusion that the Defendant had authored the messages such that the messages were authenticated and, therefore, admissible.  

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

No Claim for Alleged Negligent Handling of Corpse Recognized in Pennsylvania


In the case of Casey v. Presbyterian Medical Center, No. 160203594 (C.P. Phila. Co. April 9, 2019 Cohen, J.), the court confirmed that Pennsylvania law does not recognize a cause of action for alleged psychological injuries stemming from another’s alleged negligent handling of a corpse.  

This matter came before the court by way of a Motion for Summary Judgment.  According to the Opinion, the decedent was transported by ambulance to the Presbyterian Hospital and later passed away.   The decedent’s body was transferred to the hospital morgue, where it was stored in a refrigerated location. 

Four (4) days after the decedent’s death, a hospital representative advised the family that the morgue’s refrigerator had malfunctioned, causing the decedent’s body to rapidly decay. The decedent’s body had to be cremated due to the corpse’s deteriorated state, thereby depriving the decedent’s relatives the ability to hold an open casket funeral, as was their alleged wish in accordance with the religious beliefs.   

None of the relatives of the decedent personally saw the corpse after the refrigerated malfunctioned. However, an unidentified funeral director allegedly took pictures of the body prior to the cremation and showed them to the Plaintiff, one of the decedent’s sons.   That person immediately became nauseous upon seeing the photos and allegedly continued to be affected thereafter.  

The decedent’s relatives filed a negligence cause of action against the hospital and related parties.   The Plaintiffs alleged that the Defendants handled the refrigeration and preservation of the decedent’s corpse in a negligent manner.   Among other claims, the Plaintiffs asserted a claim for negligent infliction of emotional distress.  

As noted above, the Motion for Summary Judgment was granted and, when the Plaintiffs appealed, the court wrote this Rule 1925 Opinion for the benefit of the appellate court.   The court held that, under the case of Hackett v. United Airlines, 528 A.2d 971, 973 (Pa. Super. 1987), Pennsylvania law did not recognize a claim for mental suffering allegedly caused by the tortious interference with a dead body.   Given that the Plaintiff failed to allege a cognizable cause of action, the trial court had entered summary judgment.  

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

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 21, 2019). 

Punitive Damages Claim Allowed to Be Added at Time of Trial


The case of Samuda v. Moreland, No. 8058 - CV - 2016  (C.P. Monroe Co. May 7, 2019 Zulick, J.) is an example of a case in which a trial court allowed a Plaintiff to amend a Complaint at the of trial to add a claim for punitive damages.

According to the Briefs filed in the matter, the case arose out of motor vehicle accident between a Martz Bus and the Plaintiff's vehicle.  Part of the claims pursued by the Plaintiff included claims of recklessness on the part of the Martz Bus Company for allowing its driver to continue to drive its buses despite prior issues with his driving.

In support of her position, the Plaintiff asserted that the addition of punitive damages to the ad damnum clause did not amount to an effort to state a new cause of action beyond the statute of limitations, but rather another element of damages to a timely asserted claim against the Defendants.

Anyone wishing to review the Court's Order (no Opinion) may click this LINK.

I send thanks to Attorney Michael J. Foley of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Monday, July 1, 2019

Pennsylvania Superior Court Decides Proper Venue For Internet Defamation Cases (Case of First Impression)


The issue of proper venue in a case of alleged defamation on the world wide web was addressed by the Pennsylvania Superior Court in the case of Fox v. Smith, 2019 Pa. Super. 166 (Pa. Super. May 23, 2019 Kunselman, J., Murray, J., Pelligreni, J.)(Op. by Pellegrini, J.)(Murray, J., Concurring).

The appellate court ruled that venue is proper in internet defamation cases in any venue where the Plaintiff suffered reputational harm, even though the actions underlying the defamation may have occurred elsewhere.

In this particular case, venue was found to be proper in Philadelphia where the Plaintiff allegedly sustained harm to his reputation even though the acts of defamation allegedly occurred elsewhere.

To review the Majority Opinion, please click HERE.

The Concurring Opinion can be viewed HERE.

In his Concurring Opinion, Judge Murray joined the Majority in its decision but wrote his additional Opinion to note that this was a case of first impression to which prevailing venue case law was applied to the novel scenario of electronic communications.  In his Concurring Opinion, Judge Murray urges the "[Pennsylvania] Supreme Court, its rules committees, and our legislature to provide further guidance in the evolving area of electronic communications."

Source:  "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (July 1, 2019)

Pennsylvania Supreme Court To Review Duties Owed By Ski Resorts


The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, Inc., No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident at the Roundtop Resort in York, PA. 

The court accepted all four issues presented for review, which included issues addressing (1) a trial court’s obligation to consider expert reports when ruling on an MSJ, (2) the sufficiency of expert reports, (3) the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), (4) and whether evidence of industry standards is required to sustain a cause of action in recklessness/gross negligence.

Anyone wishing to review the Supreme Court's Order outlining the issues to be reviewed may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this Order to my attention.

Friday, June 28, 2019

TORT TALK TIP: Don't Leave a Voicemail When They Are On Vacation - Send an Email Instead


It seems that most attorneys and claims professionals will appreciate it if, when you call them and it turns out that they are on vacation, that you not leave a voicemail as their voicemail inbox will usually get filled up.

Once you hear from the receptionist or the voicemail message that the person you are calling is on vacation, extend them the courtesy of not filling up their voicemail inbox and, instead, hang up without leaving a message and send an email instead.

Sending an email will help you by keeping your inquiry in writing and documented for your file.

Thursday, June 27, 2019

10 Months of Negotiations Did Not Amount to Bad Faith In UIM Claim (Non-Precedential)



In the non-precedential case of Camiolo v. Erie Insurance Exchange, No. 478 EDA 2018 (Pa. Super. April 18, 2019 Dubow, J. Olson, J. and Stevens, P.J.E.)(Mem. Op. by Olson, J.)(Non-Precedential), the Pennsylvania Superior Court affirmed a defense verdict in favor of a carrier in a bad faith claim and found that a ten (10) month negotiation/investigation period did not amount to bad faith.

According to the Opinion, in this UIM case, the Plaintiff had settled with the tortfeasor for $50,000.00.  

In this matter for disputed damages, the Plaintiff demanded the full $100,00.00 UIM policy limits.   The carrier instead offered $7,500.00 over and above the $50,000.00 liability credit.  

Over the next ten (10) months throughout the matter, the carrier increased the offer six (6) times and ultimately paid the $100,000.00 policy limit.

The Plaintiff sued for bad faith.  After a six (6) day bench trial, the trial court found no bad faith under the Pennsylvania statute.   This decision was affirmed by the Pennsylvania Superior Court in this non-precedential Opinion.  

In affirming the trial court’s findings and upholding the defense verdict, the appellate court noted that the trial court found that the carrier had never denied the Plaintiff’s claim.   It was also noted that the investigation by the carrier was “vigorous” and involved a carrier seeking and obtaining numerous medical records, ordering independent medical examinations, attempting to reconciling conflicting or changing information, while, at the same time, continually communicating with the insured’s attorney.  

The appellate court noted that a ten (10) month negotiation period under the case presented could not be deemed to be unreasonable where it was undisputed that the Plaintiff’s treatment was on-again and off-again throughout this period, which served to support the carrier’s observation that the Plaintiff’s claim, at least from a medical standpoint, was a “fluid file” with ongoing development that complicate the evaluation process.

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

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

Wednesday, June 26, 2019

ARTICLE: DRIVING TIPS FROM SOMEONE WHO HAS SEEN IT ALL


Below is an article of mine that recently appeared in the June 11, 2019 edition of the Pennsylvania Law Weekly.  I am sending it along for your reading enjoyment (and to hopefully keep you safer out there on the road).

Driving Tips From Someone Who Has Seen It All


By Daniel E. Cummins | June 11, 2019

Daniel E. Cummins


After 20 years of litigating automobile accident cases, a trend of recurring types of accidents readily comes to light. Recognizing and acknowledging these common types of accident scenarios may help one to avoid dangerous situations and to become a more alert driver. Below are important safety tips to keep in mind every time you get behind the wheel that may help you to avoid a motor vehicle accident.

Hesitate when light turns green. Many an accident has occurred by another driver trying to beat the yellow light or continuing into the intersection even though the light has already turned red. And so it pays to wait a beat and look both ways before you take your foot off the brake and begin to go once your light has turned green.

Never wave the other person to go. Too many car accidents happen because one person waved another to go without the person who waved taking the time to first look to see if it was safe for the other person to proceed. And, typically, the person waved to proceed out, usually does so without looking themselves to see if it was safe to proceed.

Note that, if you wave someone to proceed and an accident happens, you could be held liable for contributing to the happening of the accident. As such, it is best never to wave another person to go.

Always look first if you are waved to go. As noted above, if you are waved to go, always signal back some form of a “no, thanks.” If the other driver continues to insist that you go, make sure you look both ways before you proceed. Chances are the driver waving you to go never looked in the first place to see if it was safe for you to proceed, and he certainly isn’t looking while angrily waving you to go in a persistent and careless fashion.

Let others go at a stop sign. In addition to being courteous, it is probably safer to always let the other driver go at intersections governed by stop signs. Most people don’t remember what we learned from the driver’s manual as to which car should go first when two or more cars arrive.

Rather, than trying to figure that out and wondering if the other driver remembers that rule of the road, just let the other person go—all the time. But don’t wave them to go. And if they wave you to go, signal back a, “no, thanks” or look down as if you did not see their wave and wait until they proceed through the intersection

Keep your distance when stopping at the end of an exit ramp. Many accidents happen at the end of an exit ramp off of a highway when the first car in the line of traffic begins to go and then stops again and then gets rear ended.

And so, when you come to the end of an exit ramp and you move up to be the car behind the first car at the end of the ramp, stop about a car length behind that car and stay put until that car is done starting and stopping, and starting and stopping before they proceed on. Resist the temptation to move until they are gone. Don’t even look back to the left on the roadway you are merging onto because you can’t go anywhere until that first car has moved on in any event.

When that first car is gone, move up to the line and come to a complete stop. Keep your foot tight on the brake and don’t move forward again until the road you are merging upon has cleared, allowing you to begin to accelerate and move forward without having to stop.

Keep your distance from delivery trucks and cars. Many delivery trucks and cars have drivers who are on a schedule and, therefore, are in a hurry at times. Whenever you see a UPS truck, a FedEx truck, a pizza delivery car or the like, keep your distance from them. Oftentimes, such drivers may be distracted somewhat due to a need to take their eyes off the road to look at a GPS device. They may also be prone to sudden turns based upon instructions from their GPS devices.
And so, when you are in the vicinity of such a delivery vehicle, give them a wide berth. Let them go at intersections. It may also be wise to keep your distance from the rear of their vehicles as they may stop or turn suddenly.
Keep your distance from tractor trailer drivers. Many an accident has occurred with tractor trailer drivers because those drivers could not see the vehicles around them. Keep a distance from the rear of their vehicle and try to avoid passing them on the right.

Keep in mind as a rule of thumb that, if you cannot see the tractor trailer driver in his side rear view mirrors, chances are he cannot see your vehicle. These types of drivers are also typically on a tight schedule and it therefore pays to give them a wide berth just like you would for any delivery driver.

Use Your Flashers. Using your flashers is a great way to make your vehicle more visible or to warn those behind you of issues up ahead.

In foggy- or snowy-highway traveling put on your flashers to make your vehicle is more visible to those traveling up from the rear. If your schedule permits, get off the highway under dense fog or heavy snow conditions as those conditions can lead to multi-vehicle chain reaction accidents. It may be safer to travel on side roads as opposed to the highway under those less than optimal conditions.

It is also wise to put your flashers on whenever you see traffic slowing up ahead on the highway as you slow to a stop on the highway. Your flashers will signal to the vehicles behind you that you are not only applying your brakes but that something else is happening as well. Utilizing your flashers in this regard may prevent you from being rear ended at a high rate of speed by an inattentive driver.

Obey the speed limit. A primary factor in most accidents is excessive speed. The faster a driver is traveling, the less time the driver has to react to the topography of the road or to any situation on the roadway. Slowing down to the range of the speed limit will provide any driver with a greater opportunity to avoid any of the many dangers one can face on any given trip.

Avoid people utilizing cellphones while driving. In Pennsylvania, while it is currently illegal for anyone to write or read a text while driving, drivers are permitted to utilize their cellphones to make or take calls. Whenever you see a driver utilizing a cellphone, do whatever you can to fall back from them or avoid them. Some studies compare drivers using cellphones to drunk drivers—both are extremely dangerous.

Know that people drive under the influence morning, day and night. Over the years, car accident cases have involved drivers who have been driving under the influence not only at night, but also during the course of a day and even, at times, in the morning. Some of the morning DUIs may involve third shift workers who have come off of work and have gone to their “Happy Hour.” 

Whenever you see an erratic driver on the road give them space and call 911 to report such activity.

Pull over for emergency vehicles. In order to avoid any accidents with any ambulances, fire trucks, or police vehicles, always pull over for them when they have their lights or sirens activated. This is not only required by law and is the safe thing to do, but wouldn’t you want people to pull over for you if you were in the dangerous condition that the emergency vehicle is responding to?

Keeping the above tips in mind while driving on the highways and byways may help to keep you and your family safe. In the end, it always pays to drive at or below the posted speed limit, keep your distance from other vehicles and always be alert for the unexpected.

Daniel E. Cummins is a partner in the Scranton law firm of Foley, Comerford & Cummins where he focuses his practice in automobile accident litigation matters.  In addition to litigating such matters, Attorney Cummins is also available to mediate such matters, and any other personal injury matters, through Cummins Mediation Services.


Tuesday, June 25, 2019

Litigation Cannot Proceed Against Deceased Party; Personal Representative of Estate Must be Substituted




In the case of Brown v. Quest Diagnostic Clinical Labatories, Inc., No. 1907 MDA 2017 (Pa. Super. May 1, 2019 Ford Elliot, P.J.E., Gantman, P.J.E., Nichols, J.) (Op. by Ford Elliot, P.J.E.), the Superior Court reaffirmed the general rule that a trial court lacks subject matter jurisdiction over a claim filed against a deceased party.  

This matter arose out of a medical malpractice action.

The appellate court noted that the filing of a Notice of Death as well as the substitution of a personal representative is mandatory in order to maintain the viability of an action.   The court noted that the Rules of Civil Procedure require that, where a party passes away during a litigation, an estate must be raised for the deceased party, letters of administration must be issued, and a personal representative must be appointed to the estate within one (1) year of the Suggestion of Death being filed.   The court noted that this applicable statute does not set a deadline for the filing of a Motion to Substitute.

In this matter, the appellate court found that it was error for the trial court to abate an action for the delay in filing a Motion to Substitute where the personal representative had been appointed within the one (1) year statutory period.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.




Summary Judgment in Slip and Fall Case Affirmed on Appeal

In the case of Wasnetsky v. Quinn’s Market, No. 1160-MDA-2018 (Pa. Super. April 8, 2019 Ott, J., Nichols, J., and Pellegrini, J.) (Op. by Pellegrini, J.) (Non-precedential), the Pennsylvania Superior Court affirmed a decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granting summary judgment for a supermarket Defendant in a fatal slip and fall case in which the trial court ruled that the evidence presented by the Plaintiff after discovery did not pose any triable question of fact as to whether a dangerous condition on the supermarket’s premises caused the alleged injuries to the decedent.   

In so ruling, the Superior Court agreed with the trial court that, although the Plaintiff produced two (2) biomechanical experts both of whom opined that the decedent slipped due to a substance on the floor and that the supermarket was negligent in failing to protect customers from that alleged dangerous condition, neither expert could identify what kind of substance could have caused the accident.  

The Superior Court emphasized that one of the Plaintiff’s expert even concluded his report by emphasizing that “it is impossible to describe the specific state of the floor, that is, what material was on the floor, at that time and how that state contributed [to the accident].” 

The Superior Court therefore affirmed the entry of summary judgment indicating that, to allow the case to proceed to trial, may have invited conjecture on the part of the jury.   As such, the entry of summary judgment by the trial court below was affirmed.  

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