Wednesday, October 30, 2019

Eastern District Court Uses Its Discretionary Power to Punt UIM Issues Back to State Court

Best Punter Ever?

The Federal District Courts of Pennsylvania flexed their discretionary muscles in two recent cases in which they punted two cases back to the state court that involved novel and/or unsettled questions under Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In the case of Lambert v. State Farm Mut. Auto. Ins. Co., NO.19-0816 (E.D. Pa. Oct. 16, 2019 Slomsky, J.) the Easter District Federal Court of Pennsylvania granted a motion to remand a Declaratory Judgment action involving underinsured motorist (UIM) benefit under Section 1738 of the MVFRL.

The Plaintiff originally filed the case in the Court of Common Pleas of Philadelphia County and State Farm removed it to federal court based upon diversity.

The Plaintiff then filed a motion to remand and argued that the case involved an unsettled and novel issue of Pennsylvania law such that the case should be remanded pursuant to the discretionary nature of the federal Declaratory Judgment Act. State Farm argued that even though the case involved primarily issues of state law, there was no indication the case involves unsettled and novel issues of state law.

The Court noted that the question involved in this case was whether the Section 1738 rejection of stacking form only involves the rejection of intra-policy stacking and not inter-policy stacking as well.

The District Court reviews the motion to remand under the applicable standard of review. The District Court first looked at whether there was a parallel state court proceeding. There was none but the Court noted that was not dispositive.

Then the District Court reviewed a “non-exhaustive” list of factors to be applies as set forth by the Third Circuit Court of Appeals in the case of Reifer v. Westport Ins. Co., 751 F.3d 129 (3d Cir. 2014). Applying of the Reifer factors, the Court found no impediment to request for a remand.

The District Court in Lambert ultimately found that the issue presented did involve an unsettled and novel area of the MVFRL and and as such remanded to case to the state court.

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

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


In another case with a similar result, the District Court for the Eastern District of Pennsylvania also granted a motion to remand in Sherer v. Federated Mut. Ins. Co., NO.19-2530 (E.D. Pa. Oct. 22, 2019 DuBois, J.) involving a motion to remand a Declaratory Judgment action involving underinsured motorist (UIM) benefit under Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

The Plaintiff had filed the original case in the Court of Common Pleas of Philadelphia County and the carrier removed the matter to federal court based upon diversity.

The Plaintiff then filed a motion to remand and argued that the case involved an unsettled and novel issue of Pennsylvania law so the case should be remanded pursuant to the discretionary nature of the federal Declaratory Judgment Act.

The carrier argued that even though the case involves primarily issues of state law, there is no indication the case involves unsettled and novel issues of state law.

The issue more specifically involved whether the Section 1731 rejection of underinsured motorist coverage form is valid. Also, another potential issue was what obligation (if any) the Plaintiff's employer had to advise that there was no UIM coverage on the vehicle the Plaintiff was operating at the time of this accident.

In deciding the motion to remand, the District Court primarily reviewed whether there was a parallel state court proceeding currently pending.  The Court found that there no such parellel case but also noted that is not dispositive.

The District Court then looked to “non-exhaustive” list of factors to be applies as set forth by the Third Circuit in Reifer v. Westport Ins. Co., 751 F.3d 129 (3d Cir. 2014). 

Applying of the Reifer factors, the Court found that there was no impediment to remand. The District Court more specifically found that the issue presented is an unsettled and novel area of the MVFRL and that remand of the case to the state court was appropriate.

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

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

Tuesday, October 29, 2019

Amicus Curiae Brief on Behalf of the PDI in Support of the Attorney Client Privilege and the Attorney Work Product Privilege


Here is a LINK to the amicus curiae Brief I wrote at the request of the Pennsylvania Defense Institute in favor of the position put forth by the Appellant, The Erie Insurance Exchange, in the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super.).

By way of background, this case involves claims of a UIM breach of contract and bad faith arising out of a motor vehicle accident matter.  Notably, the carrier did not assert advice of counsel as a defense to the bad faith claims.

During the course of discovery, the Plaintiff served Requests for Production upon the carrier, one of which Requests demanded the production of a "complete copy of all documentation reflecting any investigation, evaluation and/or valuation of Plaintiffs' claims for underinsured motorist coverage authored, prepared by or obtained [the carrier's defense counsel and/or the defense firm]."

The trial court judge in Blair County ruled for an in camera inspection of the defense attorney's file with respect to the Request for Production at issue.  In response, the carrier objected, citing to the attorney-client privilege and the attorney work product privilege, and this appeal followed.

The amicus curiae Brief argues that, above and beyond the particulars of the narrow discovery dispute presented in this specific case, to allow for any inspection of the defense attorney's file would violate the protections afforded by the attorney-client privilege which has existed for over 300 years in Pennsylvania as well as the attorney work product doctrine. 

It was also asserted in the Brief that, if an inspection of a defense counsel's file is permitted, the danger then exists with such a precedent that these bedrock privileges long recognized in the law could be eroded to the extent that the files of all attorneys could become subject to inspection by opposing counsel.

It was additionally argued in the Brief that, practically speaking, if a judge conducts an in camera inspection of an attorney's file and rules that the contents of the same were not discoverable, then that judge could be disqualified from entering any further rulings in the case given that that judge had viewed non-discoverable information that could color or taint his or her analysis of future issues in the matter.  This is particularly so in a bad faith action which proceeds to a bench trial after the completion of discovery in Pennsylvania state courts.

The parties await an argument date from the en banc Pennsylvania Superior Court on the appeal presented.  I send thanks to the Pennsylvania Defense Institute for the opportunity to assist in this case.



Monday, October 28, 2019

UIM Carrier's Attempt to Rely Upon Third Party Release to Preclude UIM Claim is Rejected


Here's another decision in which a court rejected a UIM carrier's attempt to argue that a Plaintiff's UIM claim was barred by the Release executed by the Plaintiff in the companion third party case arising out of the same accident.

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.”  The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988).  The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

 The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.

The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.  The Tort Talk post on the Crisp case, which contains a Link to that Opinion, can be viewed HERE.

The Lane case reviewed in this post can be accessed at this LINK

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

Friday, October 25, 2019

It's Not Too Late To Settle Your Case Before the End of the Year



Firms have been settling cases with Cummins Mediation Services.  All mediation assignment have been settled except in one case.

Need help bringing your case to a close before the end of the year? 

Please consider utilizing CUMMINS MEDIATION SERVICES.

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

Resume and fee schedule available upon request.

Wednesday, October 23, 2019

Allegations of Recklessness and Claims for Punitive Damages Allowed to Stand in Trucking Accident Case


In the case of Shelton v. Gure, No. 3:19-CV-0843 (M.D. Pa. Sept. 3, 2019 Caputo, J.), the court denied a Defendants’ Motion to Dismiss in a trucking accident litigation. The Defendants’ Motion to Dismiss centered around the Plaintiff’s allegations of recklessness and the demand for punitive damages.

According to the Opinion, the Plaintiff pled in the Complaint that the accident was caused by the Defendant tractor trailer driver pulling back onto a highway from the berm into a traffic lane at night with no lights on the trailer, which alleged violated the Federal Motor Carrier Safety Regulations.  It was also alleged that the Defendant's tractor trailer was only traveling at about 40 mph in a 70 mph speed limit zone when this manuever was attempted.

The Plaintiff, who was also driving a tractor trailer was involved in an accident with the Defendant's tractor trailer.

Judge A. Richard Caputo
M.D.Pa.
The court noted that the factual allegations in the Complaint, in conjunction with allegations of a conscious disregard for the safety and rights of others, adequately stated a claim for recklessness and support of the request for punitive damages.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Sept. 24, 2019).




Effort By UIM Carrier To Argue UIM Claim Barred By Terms of Third Party Release Rebuffed


In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out. 

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).   Click HERE to view the Tort Talk blog post on the Crisp case and to see a Link to that case.

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

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

I send thanks to Attorney Scott B. Cooper from the Harrisburg, PA law firm of Schmidt Kramer, P.C. for bringing this decision to my attention.

Monday, October 21, 2019

Discovery of Communications With Divorce Attorney Allowed Relative to Loss of Consortium Claims


In the case of Corey v. Wilkes-Barre General Hospital, No. 1980 MDA 2017 (Pa. Super. Sept. 23, 2019 Ford Elliot, J., Gantman, J., Nichols, J.) (Op. by Ford Elliot, J.) (concurring and dissenting Op. by Nichols, J.) the Pennsylvania Superior Court affirmed a decision by a Luzerne County judge allowing for the disclosure for certain divorce records in a wrongful death lawsuit against a hospital.

According to the Opinion the Plaintiff-wife filed a wrongful death lawsuit against the hospital over the death of her then estranged husband. As part of that lawsuit, the Plaintiff-wife filed a loss of consortium claim.

When the Defendants sought to discovery information contained in the divorce proceedings that were active at the time the estranged husband passed away, the Plaintiffs asserted that any communications between the Plaintiff-wife and her attorney in those proceedings were protected by the attorney/client privilege.

The Pennsylvania Superior Court affirmed the ruling by a Luzerne County judge that the loss of consortium claim created an exception to the attorney/client privilege relative to the disclosure of the communications between the Plaintiff-wife and her attorney in the separate divorce proceedings.

In its Opinion, the Superior Court emphasized that, in order to recover on a loss of consortium claim, the spouse who brings that claim must demonstrate and injury to the marital relationship that deprives him or her of the companion, society, affection and sexual relations that spouses share prior to the injury and that, but for the injury, the two would have continued to share.

The Superior Court noted that, where an alleged marital injury is suffered during the pendency of a divorce, the spouse bringing a claim for loss of consortium places the marital relationship at issue because, in order to prove a loss of consortium, the divorcing spouse must first prove the existence of consortium.

In this regard, the appellate court noted that a spouse cannot hide behind the attorney/client privilege to protect communications he or she may have had with a divorce attorney when it is that spouse who placed the marital relationship, and consequently, the state of the divorce, at issue in the first place by including the claim for loss of consortium. 

The Superior Court noted that, to rule otherwise and to allow for the privilege to be asserted, would “frustrate the administration of justice by given [the spouse] an unfair advantage and by prejudicing [a Defendant’s] defense of the claim.”

Anyone wishing to review Judge Ford Elliott's Majority Opinion may click this LINK.

Judge Nichols Concurring and Dissenting Opinion can be viewed HERE.

Source: Article: “Court: Divorce Records Discoverable in Cases with Loss of Consortium Claims.” By P.J. D’Annunzio of the Pennsylvania Law Weekly (September 25, 2019).

Friday, October 18, 2019

Corrected Link for Jones v. Ritchie Case

Yesterday's Tort Talk blog post reviewed the case of Jones v. Ritchie, No. 4983-Civil-2019 (C.P. Monroe Co. Sept. 2, 2019 Williamson, J.), the court dismissed common law and statutory bad faith claims against a carrier on the grounds that no contractual relationship existed between the carrier and the plaintiffs.

The Link to the decision was incorrect. Here is the corrected LINK.

I apologize for any confusion and thank you for reading Tort Talk.



Thursday, October 17, 2019

Verdict in Favor of Dallas Cowboys Fan Injured At Eagles Game Reversed


In the case of Pearson v. Philadelphia Eagles, LLC, 3053 EDA 2018 (Pa. Super. Oct. 11, 2019 Murray, J., Pelligrini, J., and Strassburger, J.) (Op. by Murray, J.) (Strassburger, J. concurring), the Pennsylvania Superior Court reversed a verdict in favor of the Plaintiff and remanded for the entry of a judgment n.o.v. in favor of the defense in a premises liability case involving a fight at a Philadelphia Eagles verses Dallas Cowboys game. 

According to the Opinion, the Plaintiff wore a Troy Aikman No. 8 jersey to a Cowboys versus Eagles game at Lincoln Financial Field game and was injured when he got into a scuffle in the men's room at halftime of a night time game.

Believe it or not, a Philadelphia County jury entered a substantial verdict in favor of the Plaintiff.  This appeal followed and as noted, the appellate court reversed.

The court noted that, absent a pre-existing duty, the general rule of law in Pennsylvania precludes holding a person liable for the criminal conduct of another. Rather, such a duty may arise from a voluntary undertaking to provide security. However, even providing secure is not deemed under Pennsylvania law to be a guarantee against all third-party criminal activity. 

The court noted that the undisputed evidence in this matter was that restroom fights were infrequent. As such, the court stated that, absent notice of frequent prior incidents on the premises, there was no duty on the landowner to post a guard at every restroom in the sports stadium.

The court additionally rejected any arguments by the Plaintiff that the scope of the Defendant’s undertaking of providing security measures should have been broader than it was.

Anyone wishing to review a copy of the Majority Opinion of this decision may click this LINK.  The Concurring Opinion of Judge Strassburger 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.

No Valid Direct Claim of Bad Faith Can Be Asserted By Third Parties Against Carrier If Not Party to Insurance Contract


In the case of Jones v. Ritchie, No. 4983-Civil-2019 (C.P. Monroe Co. Sept. 2, 2019 Williamson, J.), the court dismissed common law and statutory bad faith claims against a carrier on the grounds that no contractual relationship existed between the carrier and the plaintiffs.
By way of background, the plaintiff was allegedly injured as a result of a rear-end accident allegedly caused by a defendant driver.  The vehicle operated by the defendant driver was rented by a co-defendant. That co-defendant who rented the vehicle that was being operated by the defendant driver at the time of the accident was covered under a personal automobile insurance policy issued by the carrier who filed the Preliminary Objections in this matter.   

As such, the plaintiffs were strangers to the insurance policy issued by the insurance company that they sued in this matter. 

In granting the Preliminary Objections of the insurance on the common law and statutory bad faith claims presented by the plaintiffs, the court initially cited to several cases that have held that the common law claims for bad faith on the part of insurance companies are not recognized in Pennsylvania.   As such, the common law bad faith claims asserted by the plaintiffs were denied on that additional basis.   

Relative to the plaintiff’s statutory bad faith claims, the court emphasized that under 42 Pa. C.S.A. §8371, it was required that the plaintiff pursue an action under an insurance policy and that the claims presented involve claims that the carrier had acted in bad faith “toward the insured.”   

Judge David J. Williamson
Monroe County 
Judge Williamson emphasized that the bad faith statute provides that a carrier has a duty to the person it has insured.  The court otherwise noted that “[t]here is no statutory duty for an insurance company to act in good faith as to third parties.” [other citations omitted].  

Given that the plaintiffs in this matter were not a party to the insurance company’s contract, the court found that the plaintiff had no basis upon which to bring a statutory bad faith claim against that carrier.  

As such, the insurance company was dismissed from this matter as a party defendant.  

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



Named Driver Exclusion Upheld to Exclude Automobile Insurance Coverage


In the case of Mid-Century Insurance v. French, No. 2:19-CV-00563-JDW (E.D. Pa. Sept. 12, 2019 Wolson, J.), the court ruled that a “named driver” exclusion that specifically listed the insureds’ son as an excluded driver under the insured's automobile insurance policy served to preclude coverage for that son in a lawsuit filed against him for a motor vehicle accident while he was driving his fiancĂ©’s automobile. 

According to the Opinion, the carrier that covered the vehicle owned by the Defendant driver’s fiancĂ© separately provided the Defendant driver with a defense.

The carrier in this matter, Mid-Century Insurance Company had issued an automobile insurance policy to the Defendant driver’s parents. 

That carrier filed a declaratory judgment action seeking a judicial declaration that it did not need to provide additional liability coverage for any claim arising out of the accident and asserted against the Defendant driver given that the policy had a named driver exclusion listing the son as being excluded from coverage. 

The court upheld the exclusion and issued a declaration that Mid-Century Insurance Company need not provide coverage in the underlying case presented.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Tuesday, October 15, 2019

Default Judgment Opened Where Plaintiff Used Old Form Language in Pa.R.C.P. 237.5


In the case of Pennachio v. Wal-Mart Stores East, L.P., No. 10120 of 2017, C.A. (C.P. Lawrence Co. Aug. 6, 2019 Motto, P.J.), the court struck the entry of a default judgment against the Defendant after finding that the Plaintiff’s notice of default was fatally defective because it failed to contain the specificity required by the Pennsylvania Rules of Civil Procedure.  

This matter arose out of a slip and fall incident at a Wal-Mart store.   After the Plaintiff obtained service and Wal-Mart never filed a responsive pleading, the Plaintiff sent an “Important Notice” as required by Pa. R.C.P. 237.5, notifying Wal-Mart that it had ten (10) days to take action or would suffer the entry of a default judgment.   When Wal-Mart did not take any action, the default judgment was filed by the Plaintiff.  

Wal-Mart responded with a Petition to Strike Default Judgment and asserted that the Plaintiff had failed to use the specific language required by Pa. R.C.P. 237.5.  

The court agreed with Wal-Mart that this was a fatal defect that required a default judgment to be stricken because the language that was used by the Plaintiff lacked the necessary specificity. The court noted that the Plaintiff utilized the language that was used in the old version of Rule 237.5 before it was amended back in 1994.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 3, 2019).  



Monday, October 14, 2019

Duty to Defend Supports Cross-Claim for Non-payment of Defense Legal Fees


In the case of Huffsmith v. PPL Electric Utilities Corporation, No. 11-CV-1012 (C.P. Lacka. Co. Sept. 5, 2019 Nealon, J.), the court addressed the issues surrounding a duty to defend and a duty to indemnify relative to a cross-claim asserted by one Defendant against a Co-Defendant. 

According to the Opinion, PPL Electric Utilities Corporation retained a contractor to perform tree removal services around transmission lines. 

Under the contract between the parties, the tree removal services contractor was obligated to indemnify the utility company for any personal injury or property damages claims resulting from the contractor’s work. Under the contract, the contractor also had a separate duty to defend at its own expense, with counsel acceptable to PPL, any suit or action brought against PPL based upon such claims. 

In an underlying matter, landowners filed a trespass action against the utility company and the tree removal services contractor for allegedly improperly moving seventeen (17) fully grown evergreen trees from the landowner’s property. There was a dispute in that matter as to whether or not the trees were within PPL’s lawful right-of-way. 

During the course of that litigation, PPL tendered its defense of the lawsuit to the contractor under the contract. 

However, the tree removal services contractor’s insurance company rejected PPL’s tender of its defense under an argument that the contractor’s duty to defend PPL would arise only if PPL became obligated to make a payment on the landowners’ trespass claim by virtue of a settlement or a verdict. 

As such, PPL retained its own defense counsel and, in the lawsuit, asserted a cross-claim against the contractor seeking to recover its own defense cost and counsel’s fees based upon the contractor’s breach of its contractual duty to defend. 

The case was litigated to a successful conclusion with a jury finding that the utility and the contractor had not trespassed upon the landowners’ property. 

Terrence R. Nealon
Lackawanna County
Pursuant to a Stipulation between the two (2) Defendants, PPL’s crossclaim against the contractor was then subsequently submitted to a non-jury decision before Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas under Pa. R.C.P. 1038.

In this decision, Judge Nealon held that, although the contractor’s duty to indemnify the utility was contingent upon PPL’s liability for a payment for the landowner as a result of a settlement or verdict, the contractor’s duty to defend the utility went into effect once the landowner’s filed their lawsuit against both the PPL and the contractor for property damages allegedly caused by the contractor’s tree removal activities. 

Accordingly, the court ruled that the contractor breached its contractual duty to defend PPL in this matter.  The contractor was found to be liable for compensatory damages in the amount of the reasonable and necessary counsel fees and costs incurred and paid by PPL in defending this trespass action as well as in pursuing its cross-claim to recover those costs of defense. The court found that the defense costs and fees in the amount of $148,235.18 were reasonable and necessary to defend the lawsuit, which fees included litigation of an appeal and a remand by the appellate court.

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

Friday, October 11, 2019

Judge Terrence R. Nealon of Lackawanna County Addresses Proper Arguments on Preliminary Objections to Joinder Complaints

In the case of Diaz-Martinez v. Maid Rite, No. 17-CV-577 (C.P. Lacka. Co. Sept. 17, 2019 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections to a joinder of Additional Defendants in a products liability action.

According to the Opinion, the Defendant manufacturers in this products liability action secured prior leave of court to file a late Joinder Complaint which joined and asserted indemnification and contribution claims against certain Additional Defendants on the grounds that those Additional Defendants made alterations to the product following the manufacturing of the product, which alterations allegedly created the alleged defect at issue.

The Additional Defendants who were joined in the matter filed Preliminary Objections to the late joinder and argued that the original Defendant had not established a reasonable justification for the delay in filing the Joinder Complaint. The Additional Defendants also asserted that they had been prejudiced by their untimely joinder.

Judge Nealon reiterated, as he has in prior decisions, that under Pa. R.C.P. 2253(b), only plaintiffs may challenge late joinders on the basis “that the joining party has not shown a reasonable justification for its delay” in seeking the joinder.

The court noted that the Plaintiffs in this case had not objected to the late joinder of the Additional Defendant. Accordingly, the court found that the issue of a reasonable justification for the delay is an irrelevant consideration in the matter.

The court went on to reject the claim of prejudice by the Additional Defendants by noting that no depositions have been scheduled to take, the parties had not conducted any joint inspection of the product at issue, no discovery deadlines have been put in place, and a trial date has not yet even been requested.

The court also noted that the Additional Defendants had not identified that any evidence was lost or destroyed prior to their joinder. Nor was there any allegation that the ability of the Additional Defendants to conduct discovery or prepare their defense had been jeopardized by the late joinder.

Consequently, the court overruled the Preliminary Objections filed by the Additional Defendants to the Joinder Complaint.

Anyone wishing to review this decision may click this LINK

Wednesday, October 9, 2019

Regular Use Exclusion in Automobile Insurance Policies Under Attack


In the case of Rush v. Erie Insurance Exchange, No. C-48-CV-2019-1979 (C.P. Northampt. Co. Oct. 1, 2019 Baratta, J.), the court denied a Motion for Judgment on the Pleadings filed by the carrier with respect to a Regular Use Exclusion issue.

According to the Opinion, a police officer Plaintiff was injured in the course and scope of his employment and recovered the liability coverage from the tortfeasor and the UIM coverage under the policy that covered the police vehicle.

The Plaintiff then sought to recover UIM benefits under his own personal Erie stacked policy. Erie Insurance denied the claim and asserted the regular use exclusion. The carrier relied upon the case of Burstein v. Prudential Property and Cas. Ins. Co., 809 A.2d 204 (Pa. 2002) and other related cases.

The Plaintiffs opposed the Motion and cited, in part, to the rationale from the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) in which the Pennsylvania Supreme Court invalidated the household exclusion.

In this Rush case, the trial court denied the carrier’s Motion for Judgment on the Pleadings and noted that the recent Gallagher case “creates a substantial question of law such that Erie’s right to prevail is not so clear that judgment on the pleadings would be appropriate in this matter.”  The Court more specifically noted that the Plaintiff set forth "a cognizable claim that the [carrier's] application of the regular use exclusion to deny their request for underinsured motorist coverage is in contravention of public policy."

Anyone wishing to review this decision may click this LINK.

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

ONE WEEK FROM TODAY: Lackawanna Pro Bono Fundraising Gala


Tuesday, October 8, 2019

Motion to Bifurcate Post-Koken Trial Denied in Luzerne County

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier.

The Court's Order only without Opinion can be viewed HERE.




Monday, October 7, 2019

Demurrer Denied in Dog Bite Case


In the case of Roegner v. Steezar, No. 2019-CV-929 (C.P. Lacka. Co. Sept. 6, 2019 Nealon, J.), the court addressed Preliminary Objections filed by a dog owner in a dog bite case in which the Defendant filed a demurrer seeking to dismiss the action on the grounds that the allegations of the Complaint were legally insufficient to state a claim of negligence against the dog owner.  

According to the Opinion, the Plaintiffs were the guests at the property of the Defendants, Joseph Steezar and Maryellen Steezar, when the Plaintiff was suddenly attacked by a pit bull that was owned by Defendant, Ryan Steezar.  

The Plaintiffs filed a premises liability claim against the Steezars and further asserted that Ryan Steezar engaged in negligent conduct, careless conduct, gross, wanton, and reckless conduct for failing to adequately control the pit bull when he knew or should have known that the dog had a tendency to attack and had dangerous propensities.   The Plaintiff additionally alleged that Ryan Steezar had violated the dog law by failing to properly confine, secure or control his dog and/or by harboring a dangerous animal.  

The Defendant dog owner filed a demurrer asserting that Pennsylvania law establishes that no absolute liability can be imposed upon a dog owner for injuries caused by dogs. Rather, proof of the owner’s negligence is required, such as showing that the owner had prior knowledge of the dog’s vicious propensities.   

The Defendant asserted a demurrer indicating that the Plaintiff’s Complaint contained no allegations which would allow for the imposition of liability under Pennsylvania law for the Plaintiff’s alleged injuries.   

The court agreed with the Defendant that the mere ownership of a dog does not subject a dog owner to absolute liability for injuries caused by the dog.   

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon referred to the settle law that provides that, for a victim of a dog bit to establish negligence on the part of the dog’s owner, the victim must prove that (1) the dog had dangerous propensities; (2) the owner knew, or had reason to know, that the dog had those dangerous propensities; and (3) the owner failed to exercise reasonable care to secure or control the dog so as to prevent it from injuring another person.  

The court additionally stated that a dog’s dangerous propensity is determined by the dog’s behavior rather than its breed.  It was also noted that a large overly-friendly dog that jumps on to people may be considered to be judged as dangerous as a vicious dog.   

Under Pennsylvania law, there is no distinction between an animal that is dangerous and viciousness and one that this merely dangerous from playfulness.   

Accepting the Plaintiff’s allegations in the Complaint as true as required by the standard of review for a demurrer, the court found that Plaintiff had stated a cognizable cause of action in negligence against the dog owner.  

As such, the demurrer was denied and the court suggested that the Defendant could revisit the issue once discovery is completed.  


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


Thursday, October 3, 2019

Judgment in Favor of Carrier on Bad Faith Claim Affirmed


In the non-precedential decision of the Pennsylvania Superior Court in the case of Lewis v. Erie Insurance Exchange, 2115 EDA 2018 (Pa. Super. Aug. 21, 2019), the Court affirmed a trial court's dismissal of a bad faith claim relative to the purchase of automobile insurance coverage.

In one issue of note, the Superior Court affirmed the trial court's ruling that precluded the Plaintiff from utilizing an insurance agent as an expert at trial.

The Opinion is also notable for the Court's handling of the word limit Rule for appellate Briefs and confirms that the Court apparently does keep an eye out for violations of the same.

In this case where the Appellant raised 11 issues, the Pennsylvania Superior Court also turned to its oft-repeated advice for appellate litigants to only raise their strongest issues as "[a] brief that raises every colorable issue runs the risk of burying good arguments[.]  Lewis citing Com. v. Showers, 782 A.2d 1010, 1015-1016 (Pa. Super. 2001)[other citations omitted].

Anyone wishing to review this non-precedential decision may click this LINK.

I send thanks to Attorney Robert J. Cahall of the Wilmington, DE office of McCormick & Priore for bringing this case to my attention.

Wednesday, October 2, 2019

Pennsylvania Supreme Court Reaffirms General-Verdict Rule For Personal Injury Matters on Appeal


In the case of Shiflett v. Lehigh Valley Health, No. 43 MAP 2018 (Pa. Sept. 26, 2019) (Op. by Donohue, J.), the Pennsylvania Supreme Court ruled that the Superior court erred in remanding a medical malpractice case for a new trial on damages when that decision by the Superior Court went against the “general-verdict rule” previously adopted by the Pennsylvania Supreme Court.

According to the Opinion, the Plaintiffs pursued this medical malpractice action in connection with injuries the Plaintiff allegedly suffered while in the hospital for knee surgery.

At trial, the Plaintiffs returned the verdict in favor of the Plaintiff awarding them in excess of $2 million dollars in damages.

On appeal the Pennsylvania Superior Court ruled that one of the claims upon which the Plaintiffs prevailed was barred by the statue of limitations and should not have been submitted to the jury.  After finding that some portion of the jury’s damages award may have been based on that time-barred claim, the Superior Court remanded the case for a new trial on damages.   

Upon further appeal, the Pennsylvania Supreme Court in this decision concluded that the Superior Court had erred in remanding the case for a new trial on damages given that, under the “general-verdict rule” adopted by the Pennsylvania Supreme Court in the case of Halper v. Jewish Family & Children’s Services,, 963 A.2d 1282 (Pa. 2009), the hospital waived any entitlement to a new trial on damages when the hospital failed to request a special Interrogatory on the verdict sheet that would have permitted the jury to allocate damages awarded on each claim.  

Anyone wishing to review a copy of Justice Donohue's Majority Opinion in this decision may click this LINK.

The Dissenting Opinion by Justice Saylor can be viewed HERE.

Pennsylvania Supreme Court Rules That New Stacking Waiver Required Whenever UM/UIM Coverage Increased on Policy


In its recent decision in the case of Barnard v. Traveler's Home, No. 42 EAP 2018 (Pa. Sept. 26, 2019 Wecht, J.)(Saylor, C.J., Dissenting), the Pennsylvania Supreme Court ruled that new stacking waivers are required whenever an insured increases the UM or UIM coverage on an existing policy.

Since the carrier did not secure a new waiver of stacking form from the insured in this case, the insured was entitled to receive stacked UIM coverage following an accident.

Anyone wishing to review Justice Wecht's Majority Opinion may click this LINK.

Chief Justice Saylor's Dissenting Opinion may be viewed HERE.

Limitation of Actions Provision in Contract Upheld in Products Liability Case



In the case of Stuebe v. S.S. Industries, LLC., No. 2:18-cv-04035 (E.D. Pa. Aug. 26, 2019 Jones, J.), the court granted summary judgment in a product liability case holding that a suit initiating clause in a contract between the plaintiff and the defendant that required that any suit be brought within 90 days was enforceable and not unconscionable. 

The court noted that, under Pennsylvania law, parties to a contract may shorten an applicable statute of limitations if the agreed upon period is not manifestly unreasonable.   Reviewing other cases, the court noted that similarly short periods have been held to be enforceable by other courts.  

The court in this Stuebe case additionally noted that products liability actions are no different than any other type of claim with respect to these types of suit initiating clauses that serve to reduce the statute of limitations time period.  

The court additionally noted that the clause at issue was found not to be unconscionable because the Plaintiff’s right to sue was not cut off before he knew he was injured.   The law does not require that suit limitation clauses provide a Plaintiff with enough time to fully determine the extent of his or her injuries and/or damages.  

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

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