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.

10 Months of Negotiations Did Not Amount to Bad Faith In UIM Claim (Non-Precedential)

In the non-precedential case of Camiolo v. Erie Insurance Exchange, No. 478 EDA 2018 (Pa.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 by Olson, J.)(Non-Precedential), the Pennsylvania Superior Court affirmed a defense verdict in favor of a carrier in a bad faith claim and found that a ten (10) month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   This decision was affirmed by the Pennsylvania Superior Court in this non-precedential Opinion.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. 

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.

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.


UPDATE:  On January 2, 2020, the Pennsylvania Supreme Court denied plaintiff's petition for allowance of appeal.  Here is a LINK to the Supreme Court's Order in this regard.

Gallagher v. GEICO Household Exclusion Case Extended by Another Eastern Federal District Court Decision

In a new Federal Eastern District Court decision in  Smith v. Nationwide, No. 19-1217 (E.D. Pa. June 24, 2019 Baylson, J.), concerning the application of the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO finding the Household Exclusion in UM/UIM policies to be invalid, the court denied a 12(b)(6) motion and held that that Gallagher is applicable even in situations where the Host and Household Vehicles are insured by different companies, where the Household Policy contains a stacking provision.

This represents an extension of the Gallagher v. GEICO decision as that decision involved policies from the same carrier on all of the vehicles involved.

Anyone wishing to review this decision may click this LINK.

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

Note that you can join Attorney Cooper and myself for a Webinar on the Gallagher v. GEICO decision on July 8^th at Noon.  Here is a LINK to the Tort Talk post with the Registration information for that CLE Webinar.

Puntive Damages Claims Based in Part on Alleged Cell Phone Use Allowed to Proceed in Monroe County

In the case of Miller v. Repasch, No. 517-Civil-2019 (C.P. Monroe Co. April 17, 2019 Williamson, J.), the court issued an Order only denying the Preliminary Objections filed by a Defendant against claims of recklessness and a claim for punitive damages in a motor vehicle accident case involving cell phone use.   The court noted that the allegations in the Complaint were sufficient to allow those claims to proceed forward.  

Reviewing the allegations in the Complaint reveal that this matter arose out of a head-on collision in which the Defendant allegedly failed to operate his vehicle at a safe and prudent speed, failed to take corrective action to avoid the impact, failed to have his vehicle under proper and adequate control, failed to keep a proper lookout, drove his vehicle in careless disregard for the safety of others, and allowed his attention to diverted or distracted thereby precluding the Defendant from being in his vehicle to a stop in sufficient time to avoid the collision.  

In the Plaintiff’s Complaint, it was alternatively pled that the Defendant reported that he crossed the center line as a result of having “blacked out,” or that, if the cause of the Defendant crossing the center line was due to knowingly operating an electronic device or other communication or listening device while operating a vehicle then such actions were done in conscious disregard of the risk that such distracted driving posed to the traveling public, including the Plaintiff.  

A copy of the Complaint is attached to the Order which can be viewed by way of the below link. 

Anyone wishing to review the Court’s Order issued in this matter (as well as a copy of the Complaint) may click this LINK. 

I send thanks to Attorney John B. Dunn of Matergia & Dunn in Stroudsburg, Pennsylvania.  

Pennsylvania Supreme Court Splits Evenly on Impact of Waiver of Liability Form

Tort Talkers may recall the case of Valentino v. Philadelphia Triathlon, 150 A.3d 485 (Pa. Super. 2016), in which the Superior Court ruled that a waiver form served to prevent a widow from suing for the death of her husband who died competing in a triathlon.

The prior Tort Talk posts on this case can be viewed HERE.

On June 18, 2019, the Pennsylvania Supreme Court issued a Per Curiam Order affirming the Pennsylvania Superior Court"s decision upholding the waiver.  The Pennsylvania Supreme Court was evenly split on the issue with Justice Wecht not participating.  As such, by operation of law, the Superior Court decision stands.

Here is a LINK to the Pennsylvania Supreme Court's Per Curiam Order.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Donohue's Dissenting Opinion can be viewed HERE,

Justice Dougherty's Dissenting Opinion can be viewed HERE.

Pennsylvania Superior Court Addresses Scope of Attorney-Client Privilege

In the case of Newsuan v. Republic Services, Inc.,  No. 1248 EDA 2018 (Pa. Super. June 20, 2019 Olson, J., Dubow, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.)(Olson, J., Concurring), the Pennsylvania Superior Court reversed and remanded a trial court's decision to grant a plaintiff's motion to compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.

The lower court opinions in this case are summarized in prior Tort Talk posts that can be viewed HERE.

According to the lower court's Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.

The trial court had ruled, in part, that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

The trial court also offered in a Rule 1925 Opinion that the appeal had no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.

The Pennsylvania Superior Court initially ruled that the issues pertaining to the attorney-client privilege were appealable under the collateral order doctrine.

The Superior Court went onto review the rules surrounding the attorney-client privilege and ruled that the witness statements at issue did fall within the privilege.  As such the lower court's ruling was reversed.

Anyone wishing to review the Court's decision in this matter may click this LINK.

I send thanks to Attorney Matthew J. McColgan of the Philadelphia office of German, Gallagher & Murtaugh for bringing this decision to my attention.

Pennsylvania Supreme Court Reaffirms That Risks and Complications of Surgery May Be Admissible

In Mitchell v. Shikora, 55 WAP 2017 (Pa. June 18, 2019)(Op. by Todd, J.)(Wecht, J., Concurring), a medical negligence case, the Pennsylvania Supreme Court addressed the admissibility of evidence regarding the risks and complications of a surgical procedure in a medical negligence case.

Consistent with the Court's recent decision in Brady v. Urbas, 111 A.3d 1155 (Pa. 2015), the Court found that evidence of the risks and complications of a surgery may be admissible at trial.

Anyone wishing to review the Majority Opinion of this decision may click this LINK.  Justice Wecht's Concurring Opinion can be viewed HERE.  Justice Donohue's Concurring Opinion can be viewed HERE.

Pennsylvania Supreme Court Clarifies Standard for Attorney Work Product Doctrine

In BouSamra v. Excela Health, No. 5 WAP 2015 (Pa. June 18, 2019)(Op. by Mundy, J.) (Donohue, J., Concurring)(Wecht, J., Concurring), the Pennsylvania Supreme Court addressed the issue of whether a law firm’s sending of pre-litigation emails to a public relations firm served to waive the attorney work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, in order to qualify as a privileged person under the doctrine.  

Tort Talkers may recall that the Pennsylvania Superior Court previously determined in this case that emails involving an internal investigation that were sent by a hospital’s attorney to a public relations firm were not barred from discovery under the attorney-client privilege or the work-product doctrine.  Here is a LINK to the Tort Talk blog post on that decision.

The Pennsylvania Supreme Court concluded the work product doctrine was not waived by disclosure unless the alleged work product was disclosed to an adversary or disclosed in a manner which significantly increased the likelihood that an adversary or anticipated adversary would obtain it.

This matter was remanded back to the trial court for fact finding and application of the newly articulated work product waiver analysis.

Anyone wishing to review the Opinion by Justice Mundy may click this  LINK.  Click HERE to read Justice Donohue's Concurring Opinion.  Click HERE to read Justice Wecht's Concurring Opinion.

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

Another Eastern District Federal Court Decision Holding that Gallagher Household Exclusion Case Applies Retroactively

Another Federal Eastern District Court has ruled that the Pennsylvania Supreme Court decision in Gallagher v. GEICO applies retroactively.

The court in Stockdale v. Allstate, No, 19-845 (E.D. Pa.  June 17, 2019 Beetlestone, J.), basically same holding but with a slightly different rationale than the Eastern District of Pennsylvania Memorandum and Order in Butta v. GEICO decided a few weeks ago.  

Also, in Stockdale, the District Court holds that the application of Gallagher applies back four years from when the suit was filed.

Please click this LINK to view the Stockdale decision online.

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

I note that Scott and I will be presenting a PBI sponsored Webinar on July 8, 2019 in the Gallagher v. GEICO case and its import on UM/UIM law.   Please click HERE if you would like to register for that CLE program.

Pennsylvania Superior Court Rules that Rear End Accident is Evidence of Negligence Per Se

In the case of Smith v. Wells, No. 2254 EDA 2018 (Pa. Super. June 7, 2019 Kunselman, J., Murray, J., and Pelligrini, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court granted a Plaintiff a new trial in a case where the trial court refused to grant the Plaintiff judgment as a matter of law in a case where the trial court erroneously refused to find that the Defendant’s actions in rear-ending the Plaintiff’s vehicle on the Pennsylvania Turnpike and causing a chain reaction accident amounted to negligence per se under the assured clear distance ahead rule found under 75 Pa. C.S.A. §3361.  

According to the Opinion, the Plaintiff was driving on the Pennsylvania Turnpike when he saw traffic braking ahead. The Plaintiff successfully brought his vehicle to a stop within the assured clear distance between himself and the car ahead without striking any vehicles.   The Defendant, who was traveling behind the Plaintiff’s vehicle, did not. 

During his testimony, the Defendant admitted that he did not stop quick enough and rear-ended the Plaintiff’s vehicle in front of him.  

In his opening statement to the jury, the defense counsel advised the jury that the collision was the Defendant’s fault “no question about it.”   At trial, the defense focused on the issue of whether the accident actually caused any injuries to the Plaintiff.   The defense also asserted that the Plaintiff had an extensive prior medical history and was already suffering from the same symptoms that he sought to attribute to the Defendant’s conduct in this matter.  

The Plaintiff moved for a directed verdict on the grounds that the Defendant negligently drove his vehicle into the rear of the Plaintiff's vehicle and breached the standard of care as a matter of law. The trial court denied that motion and submitted a verdict slip to the jury that contained a question of whether or not the Defendant was negligent. The jury answered that question in the negative.

The Plaintiff moved for a judgment notwithstanding the verdict on the question of negligence which was denied.  The Plaintiff also filed a post-trial motion seeking the same result.  The trial court denied that motion as well.  This appeal followed. 

On appeal, the Pennsylvania Superior Court reversed and rejected a prior statement by the Pennsylvania Supreme Court in a case from 1938, Cirquitella v. C.C. Callaghan, Inc., 200 A.588 (Pa. 1938), in which that Court noted, in part, that “the mere happening of a rear-end collision does not [at common law] constitute negligence as a matter of law on the part of the driver in the rear….” 

The Pennsylvania Superior Court in this Smith v. Wells case limited the Cirquitella decision to its facts and its ancient time period of 1938. The Superior Court noted that, in the recent times, the Pennsylvania legislature had passed 75 Pa. C.S.A. §3361 in which it is provided, in pertinent part, that “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.   * * *”

The Pennsylvania Superior Court in Smith v. Wells noted that “§3361 is a unified statute on safe-driving speeds and distances.”   The Smith v. Wells court held that this statute prohibits two distinct forms of illegal driving.  “The first is driving at any speed that is unreasonable and imprudent for the conditions and hazards of the road.   The second is driving at any speed that prevents a driver from fully braking before striking a car, pedestrian, or other object ahead."  

The Superior Court noted that a violation of these provisions of this statute amount to negligence per se on the part of the driver.  

In review the facts before it, the court stated that the evidence firmly established that the Defendant drove at a speed that made it impossible for him to stop his vehicle within the assured clear distance ahead and that the trial court, therefore, erred when it did not find that the Defendant’s violation of §3361 amounted to negligence per se. 

Significantly, the Pennsylvania Superior Court also noted that there was no claim by the defense that a sudden emergency existed or any other affirmative defenses “such as brake-failure, ice on the highway, or the Plaintiff’s contributory negligence to excuse this rear-end collision."  

As such, the Superior Court vacated the judgment entered in favor of the Defendant below and also reversed the Order denying the Plaintiff’s request for judgment notwithstanding the verdict.   The case was remanded for a new trial on the issues of causation and damages only (with the issue of negligence being considered decided).

Anyone wishing to review this decision may click this LINK.

Interesting Defense Strategy Results in Striking of Certain Portions of Federal Court UIM Bad Faith Claim as Immaterial or Impertinent

In the case of Bacon v. USAA Cas. Ins. Co., No. 1:18-CV-01686 (M.D. Pa. May 6, 2019 Kane, J.), the court addressed a motion by a UIM carrier to dismiss certain portions of a bad faith Complaint as immaterial and impertinent.  

The wrinkle in this case is that the carrier was making a more specific motion to only strike portions of the UIM bad faith Complaint as being immaterial and impertinent, as opposed to attempting to dismiss the entire Complaint.  

In this matter, the Plaintiff asserted that the carrier’s alleged refusal to pay full medical benefits and asserted that this refusal lead to certain consequences between the insured and third parties.  

The carrier focused its Motion to Dismiss on attempting to strike four (4) specific paragraphs of the Complaint.   The first two (2) paragraphs at issue raised the carrier’s advertisement directed to members of the military.  The Plaintiff alleged that, as a long-serving Army veteran, he relied upon these representations and warranties in the ad.  The Plaintiff alleged that carrier breached these representations and warranties.  

The court agreed to strike these two (2) paragraphs as being irrelevant on the issue of whether the carrier breached its duties under the policy itself and/or whether the carrier violated the bad faith statute.  

The court additionally found that the allegations pertaining to alleged warranties were prejudicial in that such allegations could lead the jury to believe that the carrier owed responsibilities to the Plaintiff outside of the scope of the insurance policy at issue.  

The court refused to strike two (2) other paragraphs raised in the defense motion.   In one of these paragraphs, the Plaintiff asserted allegations that the carrier had refused to pay a benefit due. In that paragraph, there are also grievances that were directed by the Plaintiff at third parties. The court found that the alleged refusal to pay the Plaintiff benefits due was enough to preserve this paragraph even though the other allegations pertaining the third parties may not have been actionable in this particular matter. 

With regards to the final paragraph at issue, the Plaintiff had asserted that the position taken by the carrier with respect to the payment of medical benefits resulted in certain ramifications to the Plaintiff.  The court noted that, while the paragraph had some language that focused on possible future conduct, the allegations within the paragraph alleged that the carrier had refused, in the past, to pay for certain medical treatment.   The court felt that these allegations could bear some  relationship to whether the Defendant breached a duty under the policy or imposed by the bad faith statute.  

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.  

Registration Open Gallagher v. GEICO Webinar (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.

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., Lazarus, 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).