Failure By Plaintiff to Produce Expert Report Leads to Dismissal of Med Mal Case

In the case of Warrick v. Scranton Quincy Hospital Co., LLC, No. 16-CV-1923 (C.P. Lacka. Co. March 25, 2019 Nealon, J.), the court granted Defendants’ Motions for Summary Judgment in a medical malpractice case where a Plaintiff failed to produce expert reports in support of the claims presented by the expiration of the Plaintiff’s expert deadline imposed upon the Plaintiff.  

According to the Opinion, the Plaintiff filed this malpractice action against numerous Defendants asserting a failure to timely and correctly diagnose and treat abdominal complaints, which negligence allegedly caused the Plaintiff to develop other issues requiring a surgical repair.  

The Plaintiff was originally represented by counsel who filed Certificates of Merits in support of the claims presented.   Later in the case, the Plaintiff’s attorneys withdrew their appearance.

The Plaintiff then failed to produce any expert report by the time of a court imposed deadline for the production of Plaintiff’s expert’s reports.  

Relying upon the law that holds that, except in cases of obviously malpractice where a lay juror could recognize negligence just as well as any expert witness, the court ruled that a Plaintiff must present expert testimony to establish the applicable standard of care in a medical malpractice action, the deviation from that standard, medical causation, and the extent of the alleged injuries and damages. 

Given that the Plaintiff had failed to produce an expert medical opinion following the completion of discovery and prior to the expiration of the deadline for the production of expert reports, the court found that the Plaintiff was unable to establish a prima facie case.   As such, the court granted summary judgment in favor of the Defendants. 

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

Gallagher v. GEICO Webinar Rescheduled 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.

Consider CUMMINS MEDIATION SERVICES To Settle Your Case

Need help bringing your case to a close?  Please consider utilizing CUMMINS MEDIATION SERVICES. 

Both sides will be pushed and/or pulled in a polite but firm and professional manner to that point where both sides are somewhat dissatisfied with the result but more than satisfied to agree to settle the matter.

To schedule a Mediation, please contact me at dancummins@comcast.net or at 570-346-0745.

Resume and fee schedule available upon request.

An Oldie But Goodie

It's hard to believe we are getting into June already--the sixth month of the year.  As we are at the mid-point of the year, I thought I would republish the below article of mine from the June 30, 2008  edition of the Pennsylvania Law Weekly.

A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress

By

Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.

ANTICIPATE

By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.

A MONTHLY GLANCE

Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.

RETURN CALLS PROMPTLY

A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.

RESPOND TO MAIL

Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.

READ UPDATES

Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.

ARRIVE EARLY

Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.

DON'T TAKE IT PERSONALLY

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.

VOLUNTEER

In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.

SCHEDULE 'ME' TIME

It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.

VACATION

Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.''

Daniel E. Cummins is a partner in the Scranton, PA law firm of Foley, Comerford & Cummins.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com. 

Latest Pennsylvania Superior Court Decision on the Admission of Intoxication Evidence in a Personal Injury Matter

In the case of Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazrus, J., Kunselman, J.) (Op. by Colins, J.), the court affirmed the entry of a judgment in favor of the Plaintiff following post-trial motions in a motor vehicle accident matter. 

On appeal, the appellate court noted that evidence of alcohol or drug consumption by a person involved in an accident is admissible in a personal injury action only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.   

The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the Plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment. 

On the issue of punitive damages, the court reiterated a general rule of law that such damages can be awarded against the Defendant only if the Plaintiff shows that the Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk of injury.   The court noted that the fact that a Defendant knew of a possibility of accidents and did not undertake additional safety measures is not sufficient in and of itself to support a claim for punitive damages.  

Conversely, the court also noted that, in a case of a defendant who does not admit to knowledge of a danger, punitive damages may still be pursued where other circumstantial evidence can prove that the defendant had subjective knowledge of the risk of harm.  

In this matter, there is no evidence in the record to show that a corporate defendant consciously disregarded the risk of driver drowsiness. However, the court noted that a corporate defendant can be vicariously liable for the reckless conduct of an employee without proof that the employer’s conduct itself satisfied the standard of punitive damages.  

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.

PLEASE CONSIDER SAVING THE DATES TO ATTEND UPCOMING CLE SEMINARS

July 8, 2019 at noon:  
Gallagher v. GEICO:  A Seismic Change in UIM Litigation 

I have been advised by the PBI that the Webinar: Gallagher v. GEICO:  A Seismic Change in UIM Litigation created by myself and Scott Cooper has been rescheduled to take place on July 8, 2019 at noon.

Once the online Registration form is created, I will post it here.



July 11, 2019 at 9:30 a.m.:  
A Forrest Gump Themed Civil Litigation Update

I will be doing an encore presentation of A Forrest Gump Themed Civil Litigation Update at the Pennsylvania Defense Institute's Annual Meeting at the Bedford Springs Resort in Bedford Springs, PA on July 11, 2019.

Click HERE for the online registration form or contact the PDI at this LINK for more information.

Motion To Remand Denied After Federal Court Finds that Complete Diversity Exists

The standards for a federal court Motion to Remand a Case were recently addressed in the matter of Gentry v. Sikorsky Aircraft Corp., No. 15-1326 (E.D. Pa. April 22, 2019 Pratter, J.).   According to the Opinion, the corporate Defendants in this matter removed the case from Pennsylvania state court where the Defendants were citizens of Delaware and Connecticut and had complete diversity from the Plaintiff, who was a citizen of Tennessee, and were all of the real and substantial Defendants to the action had consented to the removal. 

The Plaintiff had filed a Motion for Remand which was denied.   The court found that there was complete diversity between the parties such that the removal was proper.  As such, the Plaintiff’s Motion to Remand was denied.  

Anyone wishing to review a copy of court's Opinion in this case may click this LINK.  

Source: “Digest of Recent Cases.”  The Legal Intelligencer (Online Edition) (May 23, 2019).

Pennsylvania Superior Court Reviews Rules of Authentication of Documents By Records Custodian

In the case of Bayview Loan Srv. v. Wicker, No. 3 WP 2018 (Pa. March 28, 2019), the Pennsylvania Supreme Court declined to adopt a bright-line rule forbidding authentication of documents recorded by a third party and not the records custodian of the documents at issue.

In this case involving litigation over a mortgage foreclosure, the Court noted that the parties agreed that current Pennsylvania precedent allows a records custodian to authenticate documents even if the witness did not personally record the specific information in the documents.

The parties in this matter disagreed, however, as to whether a records custodian can lay a foundation for documents incorporated into the files of the custodian’s employer when the information in the documents was recorded by a third party.  The Pennsylvania Supreme Court noted that this process has been allowed under the similar but not identical Federal Rule of Evidence 803(6), pursuant to the so-called “adopted business records doctrine.”

The Supreme Court ruled that a trial court is allowed to utilize its broad discretion in evidentiary matters by applying the business records exception of Pa. R.E. 803(6) and the Uniform Business Records as Evidence Act, 42 Pa. C.S.A. §6108, to determine if a witness can provide sufficient evidence relating to the preparation and maintenance of records in order to justify a presumption of trustworthiness, subject  to an opponent rebutting the evidence with any other circumstances indicating a lack of trustworthiness.  

In the end, the Pennsylvania Supreme Court affirmed the Superior Court in concluding that the trial court did not abuse its discretion in allowing the testimony of the records custodian and admitting the documents under the facts of this case.

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

Source: “Court Summaries” by Timothy L. Clawges. Pennsylvania Bar News (May 6, 2019). 

Gallagher v. GEICO Webinar To Be Rescheduled

Yesterday's planned webinar on Gallagher v. GEICO:  A Seismic Shift in UIM Litigation" was cancelled at the last minute due to technical issues.  While it was beyond our control, I do apologize for any inconvenience caused to anyone by the cancellation.

The Pennsylvania Bar Institute has noted that the webinar, created by 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, will be rescheduled.

I will provide the details on the rescheduling here on Tort Talk as soon as I am made aware.

UIM Carrier Only Entitled to Credit of Tortfeasor's Liability Limits and Not Amount of Excess Verdict Paid

The Pennsylvania Superior Court issued a notable but "Non-precedential" decision on May 28, 2019 in the case of IDS Prop. Cas. Ins. Co. v. Piotrowski, No. 2546 EDA 2018 (Pa. Super. Ct. May 28, 2019 Lazarus, J., Colins, J., Kunselman, J.) (Non-Precedential Mem. Op. by Kunselman, J.), involving the amount of the credit due to a UIM carrier.

In this underinsured motorist claim there was a dispute over how much of a credit the underinsured motorist carrier was entitled to on a policy which had $100,000 of liability coverage but where there was a jury verdict of over $1 million against the third party tortfeasor.

Before trial the third party insurance carrier offered $36,001.00 which was rejected.  The third party insurance carrier agreed to pay any amount of a verdict even if it exceeded the liability limits.  

The jury returned a verdict of over $1 million and then the case was settled for $485,000 before the trial court’s decision on the defendant’s post-trial motions.  

A UIM claim was pursued and the insured argued the UIM carrier was entitled to a credit on the third party policy limit of $100,000.  

The UIM carrier argued that it was entitled to a $485,000 credit.  The trial court allowed a credit of $100,00 and the carrier appealed.  

On appeal, the Superior Court held that the carrier was entitled to a credit of only the $100,000 limits set forth in the tortfeasor’s liability policy. The Superior Court adopted the trial court’s rationale that the additional $385,000 “was not made because of Piotrowski’s bodily injury, but rather to avoid a potential bad faith claim, including punitive damages.’” 

As such, the trial court’s decision that the UIM carrier was entitled to a credit in the amount of the tortfeasor’s policy limits was affirmed.

Anyone wishing to review this decision may click this LINK.

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

Need CLE Credits? Consider Signing Up For Tomorrow's CLE Webinar on Gallagher v. GEICO Decision

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.

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 tomorrow, Tuesday, June 11, 2019 from noon to 1 p.m.  Attendees will earn 1 substantive CLE credit.

Here is LINK to the Pennsylvania Bar Institute's Ad for this seminar.  There is a Link within the Ad to the Registration page.

If that Link to the Registration page does not work, please try this LINK.

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

Dramatic Shift in Law of Jurisdiction in Pennsylvania Over Foreign Corporations

The case of In re Asbestos Products Liability Litigation (No. IV), No. 18-3622 (E.D. Pa. June 6, 2019 Robreno, J.), which was handed down on Friday, alters the course of personal jurisdiction law in Pennsylvania relative to corporations.

In reviewing the history of the law on this issue, the court noted that, in 2014, the United States Supreme Court decided the case of Daimler AG v. Bauman, 571 U.S. 117 (2014) which brought about “a sea change” in the jurisprudence of exercising general personal jurisdiction over a foreign corporation.

In Daimler, the United States Supreme Court held that under the Due Process Clause, subjecting a foreign corporation to general jurisdiction in every state in which it “engages in a substantial, continuous, and systematic course of business” was “unacceptably grasping.”

In this Asbestos Products Liabilty Litigation case, Judge Robreno noted that, under Daimler, the exercise of general jurisdiction over a foreign defendant (except in extraordinary circumstances) was limited to where the corporation was “at home,” namely, to those jurisdictions in which the foreign corporation was incorporated and where it maintained its principal place of business.  

Judge Robreno noted that, in contrast, Pennsylvania has long had a statute which requires a foreign corporation wishing to do business in Pennsylvania to register in Pennsylvania. Correspondingly, Pennsylvania law provides that such registration constitutes a sufficient basis for the exercise of general personal jurisdiction over the foreign corporation. 

As such, the courts in Pennsylvania had previously struggled with how to apply the law of Daimler in Pennsylvania.  Judge Robreno boldly laid that struggle to rest with his decision in the Asbestos Litigation case.

Judge Robreno concluded that: “(1) the Pennsylvania statutory scheme that requires foreign corporations to register to do business and, therefore, to consent to general personal jurisdiction in Pennsylvania, offends the Due Process Clause and is unconstitutional; and (2) the Third Circuit’s pre-Daimler decision in Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991),  finding that, by registering to do business in Pennsylvania, a foreign corporation consents to general personal jurisdiction, is irretrievably irreconcilable with the teachings of Daimler, and can no longer stand.  

As such, it appears that the only way jurisdiction over foreign corporations can now exist in Pennsylvania is when the corporate defendant is “at home” here in Pennsylvania.  Stated otherwise, the Asbestos Products Liability Litigation case appears to lay down a bright line test that limits jurisdiction in Pennsylvania to those corporations who have a principal place of business in Pennsylvania or which are incorporated in the state of Pennsylvania.

Anyone wishing to review this In re Asbestos Products Liability Litigation (No. IV) decision may click this LINK

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

Motion to Dismiss Federal Court Breach of Contract and Bad Faith Claims Regarding Fire Loss Granted

In the case of Bloxham v. Allstate Insurance Company, No. 3:19-CV-0481 (M.D. Pa. May 2, 2019 Caputo, J.), the court granted a Motion to Dismiss in a property damage fire loss breach of contract bad faith claim against the carrier, but allowed the Plaintiff the right to file an Amended Complaint.  

According to the Opinion, this case involved a central issue of whether the insureds resided at a property when a fire loss occurred.  

Given this dispute, the carrier denied coverage after concluding that the insured did not reside at the property.    The carrier also pointed to certain alleged misrepresentations that were allegedly made by the insureds in connection with the claim.  

The insureds responded with a lawsuit for breach of contract and bad faith.  

In the Complaint, the Plaintiffs asserted that the property was in fact “occupied” at the time of the fire as the Plaintiffs were completing ongoing repairs and renovations to the dwelling when the loss occurred.

Judge Caputo agreed with the defense argument that, because “Plaintiffs allege not that they resided at the property, but only that they ‘occupied’ the property at the time of the loss as a result of ‘ongoing and continuous repairs and renovations to the dwelling’… that the Plaintiffs had failed to state a breach of contract claim.”  

With regards to the bad faith claims, the court found that the Plaintiff’s allegations in this regard were conclusory in that these allegations offered no facts supporting the sweeping legal allegations of bad faith.  

As noted, the Plaintiff was granted the right to amend their Complaint by the court.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris.  Attorney Applebaum is also the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.  

Federal Court Dismisses UIM Bad Faith Claim After Plaintiff Fails at Second Bite at the Apple

In the case of Amica Mut. Ins. Co. v. Das, No. 18-CV-1613 (E.D. Pa. May 8, 2019 Jones, II, J.), the court granted a Motion to Dismiss a UIM bad faith claim and punitive damages claim with prejudice after a Plaintiff failed at a second attempt to properly pled such a claim after having been given the right to amend.

The court emphasized that “a bad faith claim is ‘fact specific’ and depends upon the insure[r]’s conduct in connection with handling and evaluating a specific claim.”   The court noted that a party bringing the bad faith claim under 42 Pa. C.S.A. §8371, has the burden to “describe who, what, where, when, and how the alleged bad faith conduct occurred.”  

According to the Opinion, the Plaintiff added additional allegations in the second attempt to pursue a bad faith claim, including averments that the testimony and information provided by the Plaintiff “clearly demonstrates…that her damages are far in excess of the UIM coverage amount.”   

The Plaintiff also added additional allegations that, despite knowledge that the insured was covered under the policy and that her damages were far in excess of the UIM coverage amount, the carrier refused to honor its obligations under the insurance agreement for the bad faith purpose of seeking to evade their obligations to the Plaintiff under the insurance contract.  

The court observed that these allegations lacked the dates of any of the alleged actions and also noted that the Plaintiffs failed to explain, in detail, what was unfair about the carrier’s interpretations of the policy provisions.  

In its Opinion, the court affirmed the principle that, absent specific details that establish a dishonest purpose, it is not bad faith for a carrier to investigate and protect its own interests during litigation.  

The court additionally noted that the failure of an insurance company to immediately concede to a demand for the policy limits is not, without specific facts, enough to establish a claim for bad faith.  

Finding that the Plaintiff’s additional allegations in the second amended pleading were conclusory, the court granted the Motion to Dismiss.

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

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

Summary Judgment Granted in Restaurant Slip and Fall Case

In the case of Watson v. Boston Market, No. 17-5648 (E.D. Pa. March 22, 2019 DuBois, J.), the court granted summary judgment in a slip and fall case after the Plaintiff failed to provide evidence that the Defendant created a harmful condition or had actual or constructive notice of such a condition.  

According to the Opinion, the Plaintiff slipped and fell on water on the floor of a restaurant bathroom. Thereafter, the Plaintiff saw water dripping from the ceiling light and onto the floor.  

The record before the court indicated that the restaurant manager testified that the restrooms were inspected on at least an hourly basis and that the subject bathroom had been checked approximately 45 minutes before the Plaintiff fell and that no liquid on the floor was found.  The manager also did not recall water ever dripping from the ceiling.  

In granting summary judgment for the defense, the court noted that the Plaintiff merely asserted, without explanation, that the ceiling was dripping.   The court also found that no evidence was prevented to show that the Defendant knew that there was water on the floor or that the ceiling had leaked on any prior occasion.  

The court also noted that the Plaintiff failed to provide any evidence that the Defendant had constructive notice of any alleged water on the floor where the Plaintiff admitted that there were no footprints, track marks, or slip marks on the floor.  

The court additionally noted that the Plaintiff’s argument that stains on the ceiling proved that the leak in the ceiling was a recurring condition failed because the stains on the ceiling did not, in and of themselves, establish that the Defendant should have been aware of a leaking ceiling or water on the floor on this particular occasion.   It was noted that the Plaintiff did not present any evidence to show that the stains were not old stains from a ceiling air conditioning unit that had been replaced six (6) months before the incident.

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (April 16, 2019).  

Please Consider Registering for June 11, 2019 CLE Webinar on Gallagher v. GEICO Presented by Scott Cooper and Dan Cummins

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.

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 Tuesday, June 11, 2019 from noon to 1 p.m.  Attendees will earn 1 substantive CLE credit.

Here is LINK to the Pennsylvania Bar Institute's Ad for this seminar.  There is a Link within the Ad to the Registration page.

If that Link to the Registration page does not work, please try this LINK.

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

Please Consider Signing Up for the Lackawanna Pro Bono Golf Tournament

Although the Lackawanna Pro Bono Golf Tournament is "sold out" in terms of the Golf part of the day, you can still support Lackawanna Pro Bono by paying to go to the Lunch and CLE seminar, or the dinner after the tournament.  Also, there will be raffle tickets to purchase at the lunch for a number of different prizes.  Please consider attending.