Federal Western District Court of Pennsylvania Finds Punitive Damages Awarded by Jury at a 100:1 Ratio to Be Unconstitutionally Excessive

In the case of Hyman v. Devlin, No. 3:17-89 (W.D. Pa. June 10, 2019 Gibson, J.), the court ruled that a 100:1 ratio of punitive damages to compensatory damages in a jury award was unconstitutional.   

This case arose out of a Pennsylvania State Police Trooper’s intervention in the civil repossession of an automobile. The case proceeded to a jury trial and the jury returned the verdict in the Plaintiff’s favor, awarding her $5,000.00 in compensatory damages and $500,000.00 in punitive damages.

Following the verdict, the Defendant filed a Post-Trial Motion under Rule 59(e) of the Federal Rules of Civil Procedure arguing, in part, that the jury’s punitive damages award was unconstitutionally excessive.   

In this case, the court ruled that, based upon a compensatory damages award of $5,000.00, the maximum allowable punitive damages award would be $30,000.00.

This decision is also notable for its review of the law surrounding Motions for Reconsideration in federal courts.

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 check out Attorney Beck’s excellent Drug and Device Law blog HERE.

Allegations of Liability of Unnamed Agents, Recklessness, and Punitive Damages Allowed to Proceed in a Podiatric Malpractice Action

In the case of Latka v. Rieder, No. 2019-CV-2078 (C.P. Lacka. Co. July 22, 2019 Nealon, J.), the court addressed Preliminary Objections filed in a podiatric malpractice case.  The Defendant sought to strike the agency allegations for failing to identify the actual or ostensible agents by name along with other details.  The Preliminary Objections were also asserted against the Plaintiff’s allegations of recklessness and reckless indifference along with the claim for punitive damages.

According to the Opinion, the Plaintiff developed an infection after a foot surgery performed by the Defendant.   Treatment of the infection included a partial amputation.  

The Plaintiff sued the podiatrist in a malpractice action and also asserted claims against “the agents, ostensible agents, servants, workers and/or employees” of the podiatrist.   Additionally, in her prayer for relief, the Plaintiff sought to recover punitive damages based upon allegations of recklessness.  

The Defendant podiatrist filed Preliminary Objections seeking to strike the Plaintiff’s agency allegations, recklessness allegations and punitive damages claims as lacking sufficient factual specificity.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the law establishing Pennsylvania as a fact-pleadings state but not requiring that all evidence in support of a claim be set forth in the Complaint.

The court noted that , in the context of Preliminary Objections asserting the lack of sufficient specificity, the test is whether the Defendant has been provided with adequate notice of the claim against which it must defend.  

With regards to the Plaintiff’s general agency complaints against unnamed agents and employees of the named Defendant, the court noted that, under current Pennsylvania appellate law, the failure to identify a Defendant’s agent by name, or the designation of those individuals as a unit, does not justify striking agency allegations in a Complaint.  Judge Nealon also noted that the Defendant’s efforts to strike agency claims for failing to identify the actual or ostensible agents by name in medical malpractice actions has been consistently rejected in Lackawanna County (citing numerous cases).  

In the end, the court noted that the names and responsibilities of the Defendant’s alleged agents can be ascertained during discovery. As such, the Preliminary Objections in this regard were denied.

Relative to the Plaintiff’s allegations of recklessness and the Plaintiff’s punitive damages claims, the court emphasized that punitive damages are only appropriate when an individual’s actions are of such outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

The court noted that wanton or reckless conduct covers instances where the actor has intentionally done an act or an unreasonable character in disregard of a risk known to him or her or so obvious that he or she must be taken to have been aware of it, and so great as to make it highly probable that harm would result.   The court otherwise noted that allegations of merely negligence or even gross negligence, do not suffice to support a punitive damages claim.   

Judge Nealon turned to Pa. R.C.P. 1019(b), along with case law construing that Rule, to support a conclusion that recklessness is a condition of the mind that may be averred generally in pleadings in appropriate circumstances.

Judge Nealon went on to cite numerous Lackawanna County cases in which Preliminary Objections seeking to dismiss punitive damages claims on the basis of factual insufficiency have been uniformly rejected except in cases where the Complaint generally alleged willfulness, wantonness, or recklessness without supporting facts.   

After a review of the allegations in the Complaint in this matter, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s allegations of reckless conduct and the Plaintiff’s related claim for punitive damages. 

The court noted that the Defendant retained the right to challenge the validity of these claims by way of a Motion for Summary Judgment.   

The court additionally emphasized that the Plaintiff may not obtain any financial worth discovery from the Defendant doctor under Pa. R.C.P. 4003.7 unless and until the Plaintiff demonstrated a prima facie right to recover punitive damages.  

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

Deadline to Remove Case to Federal Court Tied to Filing of Complaint, Not Writ of Summons

In the case of McLaughlin v. Bayer Essure, Inc., No. 14-7315 (E.D. Pa. May 24, 2019 Padova, J.), the court denied a Motion to Remand a federal court case back to state court.  

In denying this Motion to Remand, the federal court noted that, although Pennsylvania state law allows for the service of a Writ of Summons without an accompanying Complaint, service of a mere Writ of Summons in the state court does not affect any deadline for removal to federal court.

The federal court emphasized that the only document that that counts with regards to the deadline for the removal of a case to federal court is the Complaint.  

The Court's Opinion can be viewed at this LINK. The court's Order can be viewed HERE.

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.   Attorney Beck writes the excellent Drug and Device Law blog.   

Have You Heard of Any Recent Post-Koken Decisions or Facebook Discovery Decisions?

Should you hear about or generate any Post-Koken decisions or any Facebook Discovery decisions, I hope and ask that you please email me a copy of the same in order that I may publicize those decisions here on Tort Talk for the benefit of all.

These areas of law continue to have a dearth of appellate decisions to provide any guidance and, as a result, it is important that the common law being created state and federal trial courts across the Commonwealth on these topics be compiled and publicized.

I will be sure to give you credit for sending cases for publication here on Tort Talk.  Also, if you wish to remain anonymous, I will honor that as well.

Thanks very much.

The Post-Koken Scorecard and the Facebook Discovery Scorecard have both just been updated and can always be freely accessed on www.TortTalk.com by scrolling down the right hand column and clicking on the date noted under the title of each Scorecard.

Binding Arbitration Award Less Than Tortfeasor's Limits Collaterally Estops UIM Claim

In the federal Post-Koken case of Shiffer v. Liberty Mutual Fire Ins. Co., No. 3:17-CV-978 (M.D. Pa. July 22, 2019 Mariani, J.), Judge Robert D. Mariani of the Federal Middle District Court of Pennsylvania applied the collateral estoppel doctrine to support the entry of summary judgment in favor of an automobile insurance carrier on a UIM claim where the Plaintiff had previously concluded the third party claim by way of a binding high/low arbitration at which an award was entered below the amount of the tortfeasor's liability limits.

According to the Opinion, during the course of the prior third party litigation, the parties in that matter agreed to proceed to a binding high/low arbitration at which the high parameter was set at the tortfeasor's liability limits. 

In the Binding Arbitration Agreement to relative to the third party claim, the Plaintiff expressly reserved the right to pursue a UIM claim.  The UIM carrier was not a party to that Arbitration Agreement.

As noted, the arbitrator in the third party claim entered an award in favor of the Plaintiff that was less than the tortfeasor's liability limits.

After the Arbitration, the Plaintiff signed a Release requested by the tortfeasor's carrier which confirmed a settlement of the third party liability case in the same amount as the Arbitration Award.

Thereafter, the Plaintiff commenced this UIM Post-Koken lawsuit.  After discovery, the UIM carrier filed a Motion for Summary Judgment asserting the collateral estoppel doctrine and asserted that the Plaintiff was collaterally estopped from pursuing the UIM claim as the matter had been previously fully litigated and the tortfeasor had essentially been determined not to have been underinsured.

The Plaintiff responded with the argument that the criteria for the application of the collateral estoppel doctrine had not been met by the defense.  The Plaintiff additionally asserted that the Court should honor the language in the Arbitration Agreement under which the Plaintiff preserved the right to pursue a UIM claim following the Arbitration.

Judge Robert D. Mariani
M.D. Pa.

After providing a thorough and detailed analysis of the collateral estoppel doctrine in general as well as in this particular context of the impact of a third party award less than the tortfeasor's limits on a UIM claim, the Court granted summary judgment in favor of the carrier on the UIM claim.

The Court found that the Plaintif had been provided with a full and fair opportunity to litigate the claim at the Arbitration and that a final determination had been made at the Arbitration relative to the amount of damages that the Plaintiff was entitled to as a result of the accident.  Given that the Arbitration Award was less than the tortfeasor's liability limits, the Plaintiff was found to be collaterally estopped from pursuing an underinsured motorist claim against the Plaintiff's own automobile insurance policy.

The Court additionally held that the language in the Binding Arbitration Agreement under which the Plaintiff had attempted to preserve the right to pursue a UIM claim did not serve to alter the result.

Anyone wishing to review Judge Mariani's Opinion in Shiffer may click this LINK

The Court's companion Order can be viewed HERE.


For other Tort Talk Blog posts on the effect of the collateral estoppel doctrine in UIM cases, click HERE (be sure to continue scrolling down to additional posts below the long Post-Koken Scorecard post in order to see more write-ups on cases in this context).

Judge Brann of Federal Middle District Court Addresses Proper Pleading of Bad Faith Claim

In the case of City of Williamsport v. CNA, Ins. Cos., No. 4:19-cv-00170 (M.D. Pa. May 16, 2019 Brann, J.), the court ruled that a Plaintiff must plead all of the elements of a bad faith claim in order to proceed on the same.

This case involved a coverage dispute and a bad faith claim.   The insured municipality sought repayment for a $1 million settlement over a death arising out of a motor vehicle accident involving one of the city’s police officers.  

Judge Matthew W. Brann
M.D. Pa.

The court dismissed the bad faith claim without prejudice given that, although the insured alleged that the carrier lacked a reasonable basis for denying benefits under the policies at issue, the insured did not allege that the carrier “knew or recklessly disregarded [the] lack of reasonable basis [when] denying the…claim[s],” as is required by law to support a finding of bad faith.  

The Plaintiff was granted the right to amend the Complaint.  

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 for bringing this case to my attention.   

Check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog HERE

Carrier Need Not Show Prejudice to Enforce Limitations of Action Provision

In the case of Mail Quip v. Allstate Ins. Co., No. 19-223 (E.D. Pa. May 23, 2019 Kenney, J.)(Mem. Op.), the court held that a carrier was not required to show prejudice to enforce a suit limitations provision of the policy.

In this case, the Plaintiff sued the carrier for breach of the insurance contract and for bad faith.  Allstate filed a motion to dismissed based upon its two year limitation of actions provision in the policy.  The Plaintiff had filed suit almost four years after the loss.

The federal district court noted that there was no Pennsylvania Supreme Court precedent on point but that the Third Circuit had issued decisions predicting that the Pennsylvania Supreme Court would rule that a showing of prejudice was not required for a carrier to enforce its limitation of actions provision.  As such, this court followed that precedent and dismissed the claims.

The court additionally held that the Plaintiff's bad faith claims were also barred by the two year statute of limitations applicable to those types of claims.

Anyone wishing to review this decision may click this LINK.

Source: Article:  "Court:  Insurer May Enforce Policy's Suit Limitations Provision" by Steven A. Meyerowitz in the Pennsylvania Law Weekly (June 18, 2019).

Parameters of Pre-Complaint Discovery Addressed by Judge Terrence R. Nealon of Lackawanna County

Lackawanna County Court of Common Pleas
Scranton, PA

In the case of Doe v. Career Technology Center of Lacka. Co.. No. 2019-CV-3029 (C.P. Lacka. Co. July 18, 2019 Nealon, J.), Judge Terrence R. Nealon addressed the allowance of pre-Complaint discovery under Pa.R.C.P. 4003.8 in a personal injury matter.

According to the Opinion, this personal injury civil lawsuit allegedly arose out of improper physical contact by a defendant teacher with the Plaintiff-student.

The Plaintiff filed a writ of summons in which it was indicated that pre-Complaint discovery was to be completed by the Plaintiff in order to draft the Complaint. 

The defense responded by filing a Rule to File Complaint, which required the Plaintiff to file a Complaint within 20 days of the filing of the Rule.

The Plaintiff filed this Motion to stay the Rule to File Complaint.

In opposition to the Plaintiff's Motion, the defense argued, in part, that it was immune from suit under Pennsylvania law and that, as such, it would be futile to allow the Plaintiff to conduct pre-Complaint discovery and to file a Complaint.  The defense further asserted that such discovery would be unduly burdensome and oppressive as a result.

Judge Nealon wrote a thorough Opinion addressing the law of pre-Complaint discovery as set forth in prior appellate decisions and as codified under Pa.R.C.P. 4003.8.  Accordingly, this Opinion serves as nice primer in this area of the law.

Generally speaking, decisions on whether or not to allow pre-Complaint discovery, as well as the scope of such discovery, is largely left to the discretion of the trial court judge within the parameters noted in Pa.R.C.P. 4003.8.

In the end, the application of this law to the case at hand led the Court to grant the Plaintiff's motion to stay the effect of the Rule to File Complaint and to allow limited pre-Complaint discovery to go forward.

Anyone wishing to review this decision may click this LINK.

Evidence of Risks and Complications of Surgery Allowed in Med Mal Cases

A notable medical malpractice decision was recently handed down by the Pennsylvania Supreme Court.  

In the case of Mitchell v. Shikora, No. 55 WAP 2017 (Pa. June 18, 2019) (majority Op. by Todd J.) (Wecht, J., concurring) (Donohue, J., concurring and dissenting), the court ruled that evidence of risk and complications of surgery may be admissible in a medical negligence trial since such evidence is relevant and admissible regarding the proper standard of care and whether there was a breach of that standard of care.  

This matter arose out of a medical malpractice action in which the Plaintiff alleged negligence on the part of a surgeon during the course of a laparoscopic hysterectomy.  

Prior to trial, the Plaintiff filed a Motion In Limine to exclude evidence of her informed consent about the risks and complications of the surgery, which included the very situation that arose during the course of the surgery in this matter.   The court denied the motion with respect to the very situation that was at issue in this case.

At trial, the Defendants presented testimony that the event that occurred during the course of the surgery was a recognized risk or complication of the overall surgery.   The jury returned a defense verdict.  

On appeal, the Superior Court had reversed and remanded the case for a new trial under a rationale that, in a malpractice action only alleging negligence and not lack of informed consent, evidence that a patient consented to an operation despite the advised risks was irrelevant and inadmissible.  The Superior Court had also found that the admission of this evidence was prejudicial.  

As noted, the Pennsylvania Supreme Court ruled otherwise and held that evidence of risk and complications of surgery was indeed admissible in a medical negligence claim to establish the applicable standard of care and to show that the physician’s conduct complied with that standard.  As such, the defense verdict was reinstated.  

The Majority Opinion of the Supreme Court can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

Justice Donohue's Concurring and Dissenting Opinion can be viewed HERE.

Source: “Court Summaries” By Timothy L. Clawges in the Pennsylvania Bar News (July 15, 2019).  

Application of Hills and Ridges Doctrine Results in Summary Judgment; No Duty to Pre-Treat Surfaces

In the case of Dougherty v. Jay, No. 2017-00480-40 (C.P. Bucks Co. April 24, 2019 Trauger, J.), the court entered summary judgment in favor of the Defendant under the hills and ridges doctrine.

According to the Opinion, the Plaintiff drove to the Defendants’ residence to pick up one of the Defendants to drive her to work.   At the time, temperatures in the area were below freezing and there was intermittent freezing rain and freezing drizzle that had fallen.   While in the Defendant’s driveway, the Plaintiff got out of the car to retrieve a newspaper from the ground and slipped and fell.  

In its Opinion, the court in this Dougherty case outlined the current status of the hills and ridges doctrine.   The court noted that recovery for a fall on a surface covered by a natural accumulation of ice or snow requires an additional showing of, among other factors, an unreasonable accumulation or “hills and ridges” of ice and/or snow.   The court noted that this doctrine serves to limit the liability of landowners because to require one’s walk to always be free of ice and snow would be to impose an impossible burden in view of the climate in Pennsylvania.  

The Plaintiff attempted to get around the hills and ridges doctrine by arguing that the freezing rain that caused the ice did not qualify as “generally slippery conditions.”   The Plaintiff asserted that localized ice can result in liability when slippery conditions do not exist generally in the community.  

However, the court noted that, in this case, Plaintiff had conceded that his presence on the Defendants’ property was due to freezing rain that was generally falling in the area.   The court also noted that the Plaintiff did not argue that there was any unnatural source of accumulation on the Defendants’ driveway.   

The court additionally rejected the Plaintiffs assertion that pre-treatment of the driveway area could have prevented any dangerous conditions.   Rather, the only duty of a landowner to guard against the transient danger of ice on a pavement is to act within a reasonable time after notice of the condition and to then remove it.  

Given that the court found no evidence of liability presented by the Plaintiff, it requested the Superior Court to affirm the trial court’s entry of summary judgment in this Rule 1925 Opinion.

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

UPDATE:  In a Non-precedential decision issued on March 6, 2020, the Pennsylvania Superior Court reversed this decision, finding that genuine issues of material fact prevented the entry of summary judgment.  This Non-precedential decision by the Superior Court can be viewed HERE.

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

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

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

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

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

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

Anyone wishing to review this decision may click this LINK.

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

Trial Court Rules that Appellate Issues Waived

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

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

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

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

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

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

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

TORT TALK TIPS: Do Focused Edits

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

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

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

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

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

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

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

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

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

By Daniel E. Cummins | June 27, 2019

Pennsylvania Law Weekly

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

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

Limited Tort

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

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

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

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

Status of Uber or Lyft Drivers

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

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

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

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

Statutes on Uber/Lyft Insurance

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

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

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

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

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

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

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

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

A Requirement of Statutory Construction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Need help bringing your case to a close?  Wherever you are, please consider utilizing CUMMINS MEDIATION SERVICES.

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

Resume and fee schedule available upon request.

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

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

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

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

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

Judge Terrence R. Nealon
Lackawanna County

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

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

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

Summary Judgment Granted in Slip and Fall Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE:  According to a July 22, 2019 article in the Pennsylvania Law Weekly, Amazon had filed a Petition with the Third Circuit to review the issue again by way of an en banc panel.

UPDATE:  According to a September 23, 2020 article in the Pennsylvania Law Weekly, this case was settled and, therefore, the Pennsylvania Supreme Court would not be addressing the question presented.

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

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

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

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

The Pennsylvania Supreme Court’s monumental decision in Gallagher v. GEICO eradicating the Household Exclusion continues to be expanded by the Federal District Court Judges in the Eastern District of Pennsylvania.

In Gallagher v. GEICO, the Pennsylvania Supreme Court ruled that the Household Exclusion was void in a case in which the same carrier had issued both insurance policies at issue, i.e., the policy that covered the vehicle the plaintiff was operating at the time of the accident and another policy on another vehicle in the same household, and where stacking had not been waived with respect to either of the policies.

In the case of Donovan v. State Farm Mut. Auto. Ins. Co., No. 17-03940 (E.D. Pa. June 28, 2019 McHugh, J.)(Mem. Op.), the eradication of the Household Exclusion by the Pennsylvania Supreme Court in Gallagher v. GEICO was extended to apply to cases even where an insured had waived stacking on both policies at issue.

In Donovan, a plaintiff was injured while riding his motorcycle.  The Plaintiff had a motorcycle policy with State Farm providing unstacked coverage of $25,000 in UIM benefits on the motorcycle.

The plaintiff lived with his mother who had her own State Farm policy with unstacked UIM benefits of $100,000 per person.

State Farm tendered the $25,000 unstacked UIM limits under the motorcycle policy but denied the claim under the mother’s policy on the basis of the Household Exclusion in the policy and on the basis of the mother's waiver of stacking.

Judge McHugh of the Eastern District Federal Court found that the Plaintiff was entitled to recovery the UIM coverage under the mother’s policy.  

The court found that the waiver of stacking utilized by State Farm only served to waive intra-policy stacking and not inter-policy stacking, as was at issue in this case involving separately issued insurance policies to different named insureds.

The Court also held that, even though the policy at issue provided for unstacked coverage, the Gallagher v. GEICO decision still applied to render the Household Exclusion in the State Farm policy to be invalid.  Judge McHugh also went on to offer his assessment that the Gallagher v. GEICO decision is not to be limited to its facts.

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

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

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

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

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

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

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

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

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

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

Thanks for considering this CLE opportunity.

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

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

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

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

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

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

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

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

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

No Claim for Alleged Negligent Handling of Corpse Recognized in Pennsylvania

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

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

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

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

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

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

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

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