Tuesday, September 29, 2020

Pennsylvania Superior Court Reviews When Treating Physician May Testify As to Causation (Non-Precedential)



In the Non-Precedential decision of Krolikowski v. Ethicon Womans’ Health & Urology, No. 2025 MDA 2019 (Pa. Super. Aug. 11, 2020 McCaffery, J., Bowes, J., Ford Elliot, P.J.E.) (Op. by McCaffery, J.) (Non-Precedential), the Pennsylvania Superior Court affirmed the denial of the Plaintiff’s Pos-Trial Motions following a defense verdict in a case involving products liability claims relative to a pelvic mesh.

Notably, the Pennsylvania Superior Court confirmed that a treating physician may testify as to causation issues without being designated as an expert when those opinions were formed as part of the treater’s medical treatment. 

The court found that the opinions of the treating physician were based entirely upon the treater’s contemporaneous medical notes and were not created in anticipation of litigation. 

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.

Monday, September 28, 2020

Home Hopping Daughter Found To Be Resident of Her Father's House For Car Insurance Coverage Purposes


In the case of apparent first impression, a Montgomery County judge ruled in the case of Erie Insurance Exchange v. Montesano, No. 2016-13318 (C.P. Montg. Co. Sept. 1, 2020 Rogers, J.), that a daughter who lived periodically in different relatives’ homes was considered to be a resident of her father's house and therefore covered under her father’s car insurance policy. As such, the court held that Erie Insurance could be held liable for $200,000.00 in coverage for injuries allegedly sustained by the daughter during a motor vehicle accident that occurred while she was traveling from her mother’s home in Florida to her grandparents’ home in Alabama. 
The Erie Insurance policy at issue belonged to the injured party’s father and stepmother. 

According to the Opinion, the injured party daughter lived with her father and stepmother for about 19 years before moving in with her mother in Florida. She then decided to move in with her grandparents in Alabama. 

The injured party’s movements among the residences apparently ended when the family members decided that she should move back to the home of her father and stepmother. Prior to her return, the subject accident occurred in which the daughter was injured and her mother was fatally injured. The injured party’s sister was driving the vehicle at the time, which vehicle belonged to the injured party’s mother. 

The family filed a claim with Erie on behalf of the injured daughter demanding the payment of the $200,000.00 policy limits. The carrier denied coverage because the injured party was not a “resident” of the father and stepmother’s home at the time of the accident. 

The court found that the central issue of the case was what constituted “physically living” with another “on a regular basis” under the terms of the policy. 

The court found that the injured party daughter had physically lived in her father and stepmother’s home for nineteen (19) years before departing with a carry-on bag and a few clothes, shoes, and toiletries, but leaving behind all of her other worldly possessions. 

The court ruled that the injured party daughter only lived as a house guest at both her mother’s trailer house in Florida and her grandmother’s house in Alabama. The court noted that the injured party’s previous visit to her mother and grandmother had been temporary and sporadic. The court found that the trip at issue was no different. 

The court otherwise noted that, although as a question of physical fact, the injured party was making her way from her grandmother’s home to her father’s home at the time of the accident, for all intents and purposes, the injured party’s true and permanent residence was her father’s home. 

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

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

Friday, September 25, 2020

Limitation of Actions Provision in Property Insurance Policy Upheld and Applied to Dismiss Claim


In the case of Gonzales v. Nazareth Mut. Ins. Co., No. 412-CV-2019 (C.P. Monroe Co. July 13, 2020 Williamson, J.), the court upheld a limitation of action provision contained in a property insurance policy.

According to the Opinion, the Plaintiff owned a rental property that was insured by the carrier. After the Plaintiff discovered damage on the property, a claim was submitted to the insurance carrier for a recovery. The carrier denied the claim because the damage had been caused by a former tenant, which loss was not covered under the policy. 

Over two (2) years later, the Plaintiff filed an initial action against the carrier alleging bad faith. A year after that, the Plaintiff sought to amend the Complaint to add a breach of contract action.

The Defendant carrier filed a Motion for Judgment on the Pleadings in which it argued that the bad faith claim was untimely because the policy contained a two (2) year statute of limitations provision. 

The court agreed and granted the Motion for Judgment on the Pleadings. The court noted that the addition of a breach of contract claim would not necessarily create an additional cause of action because the bad faith claim was based upon the same facts and theory as the breach of contract claim. The court upheld and found the two (2) limitation period contained in the insurance policy to be valid. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 18, 2020).


Limitation of Actions Provision in Homeowner's Policy Upheld


In the case of Palek v. State Farm Fire and Cas. Ins. Co., No. 2:20-CV-170-JFC (W.D. Pa. Aug. 26, 2020 Conti, J.), the court granted the carrier’s Motion to Dismiss for failure to state a claim with regards to a breach of contract claim and a bad faith claim relative to the handling of a homeowner's insurance claim. 

The granting of the dismissal relative to the breach of contract claim was with prejudice but the granting of the dismissal with respect to the bad faith claim was without prejudice. The Plaintiff was granted twenty (20) days to file an Amended Complaint. 

As noted, this matter arose out of claims under a homeowner’s policy. According to the Opinion, the State Farm policy provided coverage for accidental and direct physical loss to, among other things, the in-ground swimming pool on the Plaintiff’s property. 

According to the Opinion, the Plaintiffs had emptied their swimming pool of water in order to perform routine maintenance. In doing so, they noticed damage to the swimming pool’s liner. They presented a claim for State Farm who eventually determined that the damage was not covered under the policy. The carrier asserted that the damage was caused by earth movement and, therefore, was excluded under the policy. 

The Plaintiffs filed a claim for breach of contract of the policy and a bad faith denial of benefits without a reasonable basis to do so. 

With regard to the breach of contract claim, the court agreed with State Farm that the Plaintiff’s claims were barred by the 1-year suit limitation provision contained in the policy. The court upheld this provision and found no evidence to support a finding of waiver or estoppel as raised by the Plaintiff.

The court additionally found that, even if the suit limitation provision did not apply, the alleged damages would be excluded under an application of the policy language. 

Relative to the bad faith claim, the court confirmed that a claim for bad faith is an independent cause of action separate from a contract claim. The court noted that the Plaintiff could proceed on the bad faith claim even where a contractual limitation period has been enforced and a breach of contract claim has been dismissed. Given that the Plaintiff had claims with respect to how the claim was handled, the court allowed the Plaintiff to provide more details in support of an alleged bad faith claim. 

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

I send thanks to Attorney Mark A. Martini of the Pittsburgh office of the law firm of Robb Leonard Mulvihill, LLP for brining this case to my attention.

Thursday, September 24, 2020

Summary Judgment Granted in Premises Case Where Plaintiff Produces No Evidence of a Defect

An ottoman is an ottoman is an ottoman.

In the case of Monfiletto v. Nordstrom, Inc., No. 5:19-CV-04005-JDW (E.D. Pa. July 31, 2020 Wolson, J.), the court granted summary judgment in a premises liability matter.  The Plaintiff, who used a cane to help her walk, was allegedly injured when she fell off an ottoman in a dressing room as she went to sit on it.  The Plaintiff alleged that the ottoman was slippery.

The court found that the Plaintiff’s description of the allegedly defective condition in this premises liability case was contradicted by objective evidence in the record in the form of a photograph of the ottoman.  The court stated that the photo showed that the "ottoman was just an ottoman" and showed no evidence of anything blameworthy.    The court found that this photographic evidence served to support the entry of summary judgment.

The court also rule that any allegedly defective condition at issue was open, obvious and admittedly known to the Plaintiff, who used the ottoman anyway.

As such, the court also found that the still valid doctrine of the assumption of risk also served to bar the Plaintiff’s cause of action as a matter of law.

The Court concluded its opinion in refreshing fashion by noting sympathy for the Plaintiff but also reaffirming that the Plaintiff had not offered any evidence that the Defendant store caused the Plaintiff's fall.

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 M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Peculiar Risk and Retained Control Doctrines Applied in Support of Motion for Summary Judgment



In the case of Kinlaw v. Pennsylvania American Water Co., No. 17-CV-6738 (C.P. Lacka. Co. Sept. 15, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted summary judgment in favor of the Defendants in a slip and fall case in a matter in which the Plaintiff’s attorneys had previously withdrawn from their representation of the Plaintiff and in which the pro se Plaintiff did not secure other counsel or appear at the argument on the Motion for Summary Judgment. 

According to the Opinion, this matter arose out of a slip and fall that occurred at the Elmhurst Dam in Roaring Brook Township. 

At the time of the accident, the Pennsylvania American Water Company owned the dam and a Co-Defendant was a general contractor for a restoration project that was being performed on the dam. 

The general contractor had hired Century Security Systems as an independent contractor to provide security at the dam site. The Plaintiff alleged that she was working for Century Security Systems as a security guard at the dam when she slipped and fell as she exited her vehicle. 

Before the court was a Motion for Summary Judgment filed by the Pennsylvania American Water Company and the general contractor in which it was asserted that the Plaintiff’s work location and conditions were controlled exclusively by her employer, Century Security Services, and that, as such, liability could not be imposed upon the Pennsylvania American Water Company or the general contractor under either the “retained control” or the “peculiar risk” doctrines.

After reviewing these doctrines in detail and applying the law to the facts presented, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that the Plaintiff’s claims were barred as a matter of law. 

More specifically, the court found that there was no evidence that the Plaintiff’s fall was caused by a condition that was different from the customary risks associated with security work or that any such risk was allegedly foreseeable to the moving Defendants at the time the contract with the security company was executed. The court also noted the record lacked any evidence or even any suggestion that the moving Defendants possessed any form of superior knowledge or information would somehow place them in a better position to appreciate any risks presented by any alleged dangerous condition involved.   

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


If you have a trip and fall or a slip and fall matter that you would like to try to resolve before the end of the year, please consider Cummins Mediation Services.  Please contact me at 570-319-5899 or at dancummins@CumminsLaw.net.



Wednesday, September 23, 2020

Registration to do Business in Pennsylvania Amounts to Valid Consent to General Jurisdiction



The case of Weigold v. Ford Motor Company, No. 20-2141 (E.D. Pa. Sept. 9, 2020 Savage, J.) represents another decision in which a court held that a foreign company's registration to do business in Pennsylvania also represents a valid consent to general personal jurisdiction over that company in lawsuits filed in Pennsylvania. 

Based upon this rule of law, the court denied the Defendant’s Motion to Dismiss on jurisdictional grounds.  
Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion 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.

Upcoming Zoom CLE By PADC To Consider if You Need Ethics CLE Credits

 

Here is a LINK to information on an upcoming CLE being put on by the Philadelphia Association of Defense Counsel on October 1, 2020 entitled "Professionalism in the Courtroom (And Beyond)."

I note that I am not presenting at this event and am not affiliated with the event.  I have only been ask to post on this event.

The program offers 1.5 Ethics CLE credits and costs $45.00 to attend.  Non-members are welcome to sign up. More details are provided at the Link above.

Preliminary Objections on Jurisdictional Issues Granted in Favor of NJ Defendant Regarding NJ Accident

The common plea court in Monroe County addressed issues of general jurisdiction over a non-resident Defendant in the case of Carpintero v. Aegean Express, Inc., No. 2044-CV-2020 (C.P. Monroe Co. July 16, 2020 Williamson, J.).

According to the Opinion, the Plaintiff was a passenger on a transport bus traveling from Pennsylvania to New York City. The bus broke down on the highway in New Jersey under dark conditions. It was alleged that the bus did not have any hazard lights or any other reflective devices to alert other drivers to its presence on the roadway.

Another tortfeasor Defendant, was traveling along the highway and, when a third, unidentified vehicle swerved to avoid the bus, the named tortfeasor Defendant lost control of her vehicle and hit the rear of the bus. 

The Plaintiff sued the bus company and that identified tortfeasor. The identified tortfeasor filed Preliminary Objections asserting that the Monroe County Court of Common Pleas could not exercise personal jurisdiction over her because she had no ties to Pennsylvania. According to the Opinion not only did the accident occur in New Jersey but that identified tortfeasor resided in New Jersey. 

Judge David  J. Williamson
Monroe County
Judge Williamson ruled that the basis for exercising jurisdiction over persons outside of the Commonwealth of Pennsylvania is found under Pennsylvania’s long-arm statute, 42 Pa. C.S.A.§5322. The court noted that Pennsylvania’s long-arm statute establishes that, in order for a Pennsylvania court to exercise jurisdiction over a foreign party, that foreign party must have some “minimal contacts” with Pennsylvania. 

Finding no such contacts with the Defendant at issue in this matter, the court granted the Preliminary Objections and noted that the fact that the accident involved a bus owned by a Pennsylvania company which bus contained Pennsylvania residents did not constitute sufficient contacts to assert personal jurisdiction over the Defendant at issue. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 18, 2020).




Tuesday, September 22, 2020

Sought Out By National Newsletter For Analysis on the Unsettled Validity of the Household Exclusion in Pennsylvania

 



Here is a LINK to the August 24, 2020 edition of the Auto Insurance Report, a national newsletter put out weekly by Risk Information, Inc., a company that provides strategic information to the property and casualty insurance inducstry.  

Leslie Hahn, the author of the article entitled "Pennsylvania Challenges Stack Up as Insurers Fight for Share," contacted me for input on the impact of the Gallagher v. GEICO decision on the validity of the Household Exclusion in Pennsylvania.

I referred the author of the article to Attorney Scott Cooper for his thoughts from the Plaintiff's perspective.

I send thanks to Attorney Hahn for contacting me in this regard and offer up this article for your review.




Still Time To Register to Secure 1.5 CLE Credits at a Zoom CLE This Friday


For more information on the upcoming CLE entitled "Mediation/Arbitration Tips" on September 25th see the below flyer.  

You can also register by sending an email to info2@monroebar.org.



Monday, September 21, 2020

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.



Post-Koken Decision Handed Down in Franklin County in Favor of Severance of Cases

 

Franklin County Court of Common Pleas

In what appears to be the first Post-Koken decision of its kind out of Franklin County, the trial court in the case of Stanhope v. Stoner and GEICO, No. 2020-877 (C.P. Franklin Co. Sept. 14, 2020 Shank, J.), granted a UIM carrier's Preliminary Objections and Motion to Sever the UIM claims from the third party negligence claims asserted against the alleged tortfeasor defendant.

In issuring her decision, Judge Mary Beth Shank noted that there is still no appellate decisions on the issue of whether Post-Koken UIM and third party negligence claims should be consolidated or severed.

Notably, on pg. 3 of the decision, the court cited to the Post-Koken Scorecard on Tort Talk to note that approximately 48 out of the 67 Courts of Common Pleas have addressed this issue with rulings being almost equally split on the issue.  

The court in Stanhope came down on the side of severance, ruling that the two actions involved, one in tort and the other arising from GEICO's alleged contractual obligations to insure the Plaintiff, did not arise out of the same transaction or occurrence.

The court also noted that severance was advisable since it would be unduly prejudicial to the third party defendant to have elements of insurance evidence possibly being admitted and exposed during a jury trial.  The court noted that there is a valid concern that knowledge on the part of the jury of insurance coverages being involved may "motivate the jury to be reckless in awarding damages to be paid...."  See Op. at p. 4.

While the court acknowledged that the plaintiff's argument that judicial economy would be served by keeping the cases consolidated, the court found "severance to be the better reasoned approach" and that the "risk of prejudice to either defendant to outweigh the Court's desire for judicial efficiency."  See Op. at p. 5.

For these reasons, the Franklin County Court of Common Pleas came down on the side of ruling in favor of the severance of Post-Koken UIM and third party negligence cases.

Please click this LINK to view this Stanhope decision.

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this decision to my attention.

 Commentary:  The Stanhope decision tips the split of authority across the Commonwealth of Pennsylvania.in favor of severance.  There are at least 24 County Courts of Common Pleas that have ruled in favor of consolidation of these types of cases and 25 County Courts of Common Pleas ruling in favor of severance.  

In some of these Counties there are splits of authority within the Counties (such as in Philadelphia, Allegheny, and Lackawanna Counties). 

It is hard to believe that, 15 years after the original decision in the Koken case, there has still been no appellate decisions on this issue or many other recurring Post-Koken issues.


Post-Koken Decision Out of Philadelphia County in Favor of Consolidation of Claims


In the case of Little v. Bond and GEICO, June Term 2020, No. 1539 (C.P. Phila. Co. Sept. 8, 2020 New, J.), Judge Arnold L. New of the Philadelphia County Court of Common Pleas denied a UIM carrier's Preliminary Objections seeking to sever the third party negligence claims from the UIM claims under an improper joinder argument.  This decision is by Order only and no Opinion.

Please click this LINK to view the Order.

I send thanks to Attorney John Trotman of the Philadelphia law firm of Silverman, Trotman & Schneider for bringing this decision to my attention.

This is the latest Post-Koken decision seen out of Philadelphia County on this issue, where there is a split of authority amongst the trial court judges within that County on how to address that issue.

There also remains a split of authority across the Commonwealth with at least 24 Counties in favor of keeping these cases consolidated and 24 Counties ruling in favor of severance (in matters not also involving companion bad faith claims).

To date, there has been no appellate decision on this issue.

For more details, check out the Post-Koken Scorecard on www.TortTalk.com.  You can find the Scorecard on the blog by scrolling down the right hand column of the blog until you find "Post-Koken Scorecard."  Click on the date under that title and you will be taken to the Scorecard where you will find a compilation of Post-Koken cases broken down first by issue and then by Federal and County Courts in terms of decisions handed down.

I have been keeping the Scorecard updated since December of 2009.  I don't represent the Scorecard to be a complete listing of Post-Koken decisions since that time but it is comprehensive.

Hoping you can please copy me on any Post-Koken decisions you may generate or see in order that the Post-Koken Scorecard can be continually updated for the benefit of all.

Thanks for reading Tort Talk.


Friday, September 18, 2020

One Week From Today -- Mediation/Arbitration Tips CLE


For more information on the upcoming CLE entitled "Mediation/Arbitration Tips" on September 25th see the below flyer.  

You can also register by sending an email to info2@monroebar.org.



Thursday, September 17, 2020

ARTICLE: Can The Regular-Use Exclusion Withstand an Attack from the Plaintiffs Bar?

This article of mine was published in the Pennsylvania Law Weekly  on September 10, 2020 and is republished here with permission.


Can the Regular-Use Exclusion Withstand an Attack From the Plaintiffs Bar?


By Daniel E. Cummins | Pennsylvania Law Weekly, September 10, 2020

Daniel E. Cummins of Cummins Law.



Until recently the regular use exclusion, typically found in most automobile insurance policies, had been routinely upheld, for decades, in every state and federal court decision as a valid exclusion under Pennsylvania’s Motor Vehicle Financial Responsibility Law [MVFRL].

But the plaintiffs bar has been relentless in its pursuit to have automobile insurance policy exclusions overturned as invalid under an argument that the exclusions act as de facto waivers of coverage when the MVFRL requires carriers to obtain express, written waivers of coverage from its insureds. After supporting several candidates in their quests to secure seats on the Pennsylvania Supreme Court, the plaintiffs bar was finally successful with this argument in securing the supposed eradication of the household exclusion by that new court in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) after decades of previous decisions upholding that exclusion as valid. Once they secured that stunning success, the plaintiffs bar quickly set their sights on attempting to invalidate the regular use exclusion under essentially the same analysis.

As noted below, following a series of recent Pennsylvania federal court decisions rejecting the plaintiffs’ efforts to overturn the regular use exclusion under an application of the Gallagher v. Geico decision, the plaintiffs bar found a state trial court judge willing to rule in their favor. 
 
The Regular Use Exclusion

Under the regular use exclusion, a carrier need not provide coverage to its insured where the insured was involved in an accident while using a vehicle that was regularly available for his or her use but not insured under that carrier’s policy. The common sense and cost containment rationale behind the exclusion is that the carrier did not know of that risk when it assessed its premium to its insured on the policy sold to the insured and, therefore, should not have to provide coverage.

Stated otherwise, an insured cannot secure coverage for his or her use of a vehicle regularly available to be driven by that insured if the insured never told the carrier about his or her use of that vehicle and never paid a premium for such coverage. Simply put, the regular use exclusion upholds the all-American adage that you can’t get something (coverage) for nothing (not paying a premium).

The Exclusion Has Been Regularly Upheld

The regular use exclusion has been upheld time and time again for decades dating back to at least the 1990s in both the state and federal courts of Pennsylvania. See State Farm Mutual Automobile Insurance v. Brnardic, 657 A.2d 1311 (Pa. Super. 1995); see Nationwide Mutual Insurance v. Shoemaker, 965 F. Supp. 700 (E.D. Pa. 1997), aff’d sub nom. Nationwide Insurance v. Shoemaker, 149 F.3d 1165 (3d Cir. 1998).

The courts continued to find the exclusion to be clear and unambiguous in repeated decisions handed down in the 2000s and the 2010s.

One lone decision in which a court was hesitant as to the validity of the exclusion was issued by Judge Carmen D. Minora of the Lackawanna County Common Pleas Court in 2007 in the case of Decker v. Nationwide Mutual Insurance, No. 05 CV 1863 (C.P. Lacka. Co. 2007). Minora questioned whether a regular use exclusion should be allowed to prevent a first responder or police officer from securing UIM coverage under his own personal automobile policy when that person was involved in an accident while driving a regularly used work vehicle such as a police car or an ambulance, particularly where that insured had not executed any written waiver of that coverage. Yet, Minora’s solo was drowned out by the choir of other state and federal trial and appellate court decisions repeatedly upholding the validity of the regular use exclusion as a valid part of the insurance contract entered into by the carriers and their insureds.

Recent Federal Court Decisions Uphold Exclusion

As noted above, the plaintiffs bar has recently become energized by the new Pennsylvania Supreme Court, particularly in light of that court’s agenda decision in the case of Gallagher v. Geico. With Gallagher v. Geico, the Pennsylvania Supreme Court accepted the plaintiff’s argument that the household exclusion improperly acted as a de facto waiver of coverage when the MVFRL required carriers to purposefully secure waivers of UM/UIM coverage from its insureds. With that success, the plaintiffs bar turned its focus upon the regular use exclusion with a goal of striking that exclusion down under a similar analysis.

One such recent effort by the plaintiffs to rely upon the Gallagher v. Geico rationale to defeat a regular use exclusion was rebuffed by the U.S. District Court for the Western District of Pennsylvania in the case of Barnhart v. Travelers, 417 F. Supp. 3d 653 (W.D. Pa. Oct. 28, 2019 Horan, J.), appeal dismissed sub nom. Barnhart v. Travelers Home & Marine Insurance, No. 19-3646 (3d Cir. Mar. 30, 2020).

In that case, the plaintiff was injured as a result of an accident that occurred while she was a passenger on a motorcycle that was insured by Progressive Insurance. After the plaintiff recovered from the tortfeasor, she pursued a UIM claim under a Travelers policy that covered two cars the Plaintiff and her husband owned.

Travelers relied upon the regular use exclusion given that the motorcycle on which the plaintiff was involved in the accident was regularly available for the plaintiff’s use and was not covered under the Traveler’s policy. The plaintiff argued that the regular use eExclusion was unenforceable under the Gallagher v. Geico analysis.

The court in Barnhart specifically held that the Pennsylvania Supreme Court’s holding in Gallagher “does not extend to invalidate the ‘regular use exclusion’” or to overturn the long line of cases that supported the continued validity of the regular use exclusion."

As such, the defendant carrier’s motion to dismiss the plaintiff’s complaint was granted in Barnhart because the regular use exclusion was found to defeat the plaintiff’s claims.

In the case of Nationwide Affinity Insurance Company of America v. Fong, No. 2:19-cv-02119-CFK (E.D. Pa. April 28, 2020 Kenney, J.), the court granted a carrier’s motion for summary judgment and denied the insured’s motion for summary judgment in a declaratory judgment action seeking a determination of rights and obligations under an automobile insurance policy in part based upon the upholding and application of a regular use exclusion.

According to the opinion, the Nationwide Insurance policy was issued to the injured party’s parents. At the time of the accident, the injured party resided with the named insureds with her husband and was included under the Nationwide policy as a “listed driver.” The policy also contained a regular use exclusion and a household exclusion.

At the time of the accident, the injured daughter was operating a vehicle that she owned and that she and her husband had separately insured through an Allstate insurance company policy. It was undisputed that the injured daughter owned the vehicle she was operating at the time of the accident and that that vehicle was available for her regular use.

Allstate denied the injured daughter’s claim for UIM benefits because the daughter and her husband had rejected UIM coverage under the Allstate policy. The injured daughter then turned to her parent’s Nationwide Insurance policy for UIM coverage. Nationwide filed this declaratory judgment complaint seeking a determination of its rights and obligations under the policy.

In his opinion in Nationwide v. Fong, Judge Chad F. Kenney of the U.S. District Court for the Eastern District of Pennsylvania upheld Nationwide’s reliance upon the regular use exclusion.

The court noted that the record before it confirmed that the injured daughter’s claim under the Nationwide policy was for injuries that she suffered while occupying a motor vehicle that she owned and which was available for her regular use, and which was not insured under the Nationwide policy.

The court noted that the clear language of the regular use exclusion was not ambiguous and that the plain language of that exclusion clearly applied to bar coverage under the Nationwide policy for any UIM coverage to the injured daughter.

The court in Nationwide v. Fong also noted that the claimants did not present any argument that the regular use exclusion was unenforceable on policy grounds. Regardless, the court noted that the regular use exclusion had been previously upheld by the Pennsylvania Supreme Court’s holding in the case of Williams v. Geico, 32 A.3d 1195, 1209 (Pa. 2011), in which it was held by the then Pennsylvania Supreme Court nine years ago that the regular use exclusion was not void as against public policy.

Notably, the court in this case also made a point to emphasize that the current Pennsylvania Supreme Court’s separate decision with respect to the household exclusion in the case of Gallagher v. Geico “does not affect Williams’s precedent, as the facts of Gallagher are wholly distinguishable to the facts in the [Nationwide v. Fong] matter, as conceded by the defendants.”

As such, up until recently, not only has the regular use exclusion been summarily upheld as valid for the past 25 years by numerous state and federal courts, but it has also been more repeatedly upheld as valid by several courts even in the wake of the Gallagher v. Geico decision.

A Split of Authority or an Anomaly

And then, in June, came the Northampton County Common Pleas Court case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.). In Rush, Judge Stephen G. Baratta of the Northampton County Common Pleas Court granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that Erie’s regular use exclusion was invalid under the MVFRL.

According to the opinion, the plaintiff in Rush was a police officer who was injured while driving a police vehicle that was regularly available for his use at work. After recovering otherwise, the plaintiff was seeking a further recovery under his own UIM coverage under his personal automobile insurance policy.

The carrier that issued that policy denied coverage in reliance upon the regular use exclusion contained in the personal policy. A declaratory judgment action was filed and the parties eventually filed cross-motions for summary judgment.

Buying into the plaintiffs’ de facto waiver of coverage argument, the court in Rush emphasized in its opinion that the plaintiff had not executed any UIM coverage or stacking waivers.

The court found that the regular use exclusion at issue violated the MVFRL in two respects. First, the court in Rush referred to the Pennsylvania Supreme Court’s household exclusion decision in Gallagher v. Geico and found that the regular use exclusion was analogous to a household exclusion and was invalid as a “disguised waiver” of UIM coverage when the MVFRL required the carrier to secure written waivers of such coverage from the insured during the application process or otherwise.

Secondly, under a rationale previously set forth in Slupski v. Nationwide Mutual Insurance, 801 Fed. Appx. 850 (3d Cir. 2002), the court in Rush found that, because the plaintiff was entitled to liability/medical coverage of $250,000 for his injuries from the accident, the regular use exclusion was also found to violate 75 Pa.C.S.A. Section 1734, which mandated the carrier to provide UIM coverage equal to the bodily injury coverage available absent a written waiver secured from the insured.

The Rush v. Erie Insurance decision is on its way up the appellate ladder. It remains to be seen whether this decision will be the start of an atomic split of authority on the validity of the regular use exclusion under the MVFRL or an anomaly that will fade under the heavy weight of 25 years of solid precedent supporting the exclusion and the fact that you can't get something for nothing.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Wednesday, September 16, 2020

Superior Court Upholds Trial Court's Decision Not to Seal Record on Med Mal Settlement


In the case of A.A. v. Glicken, No. 2020 Pa. Super. 197 (Pa. Super. Aug. 14, 2020 Olson, J., Dubow, J., and McLaughlin, J.) (Op. by Olson, J.), the court upheld a Luzerne County trial judge’s decision not to seal a settlement agreement in a minor’s medical malpractice lawsuit. 

In so ruling, the appellate court rejected the Defendants’ argument that not sealing the settlement agreement would have a chilling effect on future settlements and would go against the parties’ interests in privacy. The appellate court found no abuse of discretion by the trial court in denying the Motion to Seal. 

The Superior Court also ruled that the Defendants did not overcome the common law presumption of openness in courts and the Defendant did not meet their burden of showing good cause for sealing the record. 

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

Source: “Luzerne Judge’s Refusal to Seal Settlement Agreement in Med Mal Case Upheld,” by P.J. D’Annunzio of the Pennsylvania Law Weekly (Aug. 20, 2020).

Tuesday, September 15, 2020

Plaintiff's Bid to Prevail in Defendant's Coverage Action with Liability Carrier Rejected


In the case of State Farm Fire & Cas. Co. v. Worontzoff, No. 2:20-CV-839-GAM (E.D. Pa. Aug. 6, 2020 McHugh, J.), the court granted an insurance company’s Motion to Strike an injured party’s Motion for Summary Judgment in the carrier’s declaratory judgment action seeking to establish that it was not obligated to provide coverage to its insured for injuries allegedly caused to the injured party.

The court found that the injured party’s interest, that is a plaintiff's interest, in seeking the availability of insurance proceed was not sufficient to warrant intervention as a right under F. R.C.P. 24 or as a necessary party under F. R.C.P. 19(a)(1)(2). 

The court ruled that, where an interested party only had a merely financial interest in the action and not a “legally protected interest” that party could not seek to join in the case under F.R.C.P. 19(a)(1)(B). 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 24, 2020).

Discovery Rule/Statute of Limitations Applied in Products Case


In the case of Kennedy v. Ethicon, Inc., No. 5:20-CV-00185 (E.D. Pa. July 20, 2020 Leeson, J.), the court granted a Defendant’s summary judgment under the two (2) year statute of limitations and after an application and review of the discovery rule.   The case involved a pelvic mesh products liability action.

The court noted that Pennsylvania’s discovery rule tolls the statue of limitations only until an injury is discoverable and can be linked to another person’s conduct.

Judge Joseph F. Leeson, Jr.
E.D. Pa.
Judge Leeson noted that the discovery rule is objective and requires that a Plaintiff exercise reasonable diligence in pursuing a claim.

In this matter, it was indicated that the Plaintiff had first learned that her new and unusual pain was caused by something associated with the Defendant’s product more than two (2), and possibly more than four (4), years before she filed suit.  According to the record before the court, the Plaintiff’s treating doctor’s diagnosis had linked the Plaintiff’s injuries to the product.  Given the Court's finding that the Plaintiff had failed to act timely in filing the claim, the case was dismissed.

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 M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Monday, September 14, 2020

Still Time To Register for Tomorrow's CLE


I have been requested by the Philadelphia Association of Defense Counsel to be a presenter at their upcoming September 15, 2020 one hour long ZOOM CLE beginning at 12:30 p.m. entitled "State of the Courts and Case Law Update."

Non-members are welcome to attend.

Attendees will hear from Andrea Tuominum, the Assistant Court Administrator of the Adminstrative Office of the Courts of Pennsylvania (AOPC), and Stanley Thompson, Director of the Philadelphia Court of Common Pleas Complex Litigation Center.  Those speakers will provide an update on the current status of the courts and efforts to return to trials.  Daniel E. Cummins will provide a Case Law Update of recent notable cases.

Here is a LINK to the Registration page if you are interested in signing up for this program.  Here is the LINK for the Advertisement for the event.

I send thanks to Attorney Kathleen D. Wilkinson of the Philadelphia office of the Wilson Elser law firm for this invitation to present.


Assistance has been provided with respect to my  presentation by Exhibit A, a digital trial presentation company located in Philadelphia and Clarks Summit (Scranton), Pennsylvania.  Contact Exhibit A to help you with your case at info@ExhibitADigital.com.





Willing To Help With a Carnegie Mellon University Survey on Attorney Thoughts on Negotiation?


Attorney Robert Creo, an attorney, mediator, arbitrator, educator from the Pittsburgh area has asked me to post an online survey that seeks to get thoughts from attorneys on the negotiation process.  Attorney Creo is working with other to gather information in this regard as part of a project for the Tepper School of Business at the Carnegie Mellon University.

Here is a LINK to a description of the project, which contains a Link to the survey.  If you are willing to help out with this project by answering the questions in the survey, please click the Link provided.

Thank you.

Friday, September 11, 2020

Federal Middle District Court Rejects Argument That Plaintiff's Claims Against Trucking Defendant Are Pre-Empted By Federal Law


In the case of Ciotolo v. Star Transp. and Trucking, No. 3:19-CV-00753-MEM (M.D. Pa. Aug. 24, 2020 Mannion, J.), the court ruled that Pennsylvania's general tort law is not pre-empted by the Federal Aviation Administration Authorization Act ("FAAA").

This matter arose out of a tractor trailer accident during which the Plaintiff's vehicle was hit from the rear.

The trucking Defendant asserted that the Plaintiff's claims were pre-empted by the FAAA, since the claims related to the Defendant's core services of brokering the shipment of goods in interstate commerce. 

This argument was rejected by the Court.  Although the Court relied upon Third Circuit precedent, this decision by Judge Malachy E. Mannion may be the first decision of its kind out of the Federal District Court for the Middle District of Pennsylvania.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Harry McGrath of the Kingston, PA law firm of Fellerman & Ciarimboli for bringing this case to my attention.

Thursday, September 10, 2020

Link to Complete Copy of Plaintiff-Favorable Household Exclusion Decision


A few days ago, there was a Tort Talk post on the case of Donegal Mut. Ins. Co. v. Krautsack, No. CI-19-04904 (C.P. Lanc. Co. Aug. 28, 2020 Ashworth, J.), which was a plaintiff-favorable Household Exclusion decision that followed the rationale of the Gallagher decision.

The copy of the decision provided via the Link was missing pages from the Opinion.  Here is a LINK to a complete copy of the decision. 

I apologize for any confusion or consternation caused.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for securing a complete copy for me.

Jury Trials Starting to Open Back Up in Luzerne County


Can we check opposing counsel into the boards?

Here is a LINK to an article from today's online edition of the WNEP News website reporting on the Luzerne County Court of Common Pleas utilizing the Mohegan Sun Arena and other facilities to start back up jury trials. (Check out the video of the news story in the Link to hear more details on the process from President Judge Michael T. Vough of the Luzerne County Court of Common Pleas).

The alternative venues are being utilized to select jurors with the trials thereafter taking place back in the courtroom with social distancing measures in place.  Some high profile trials will take place completely within the larger alternative venue.

According to the article, jury trials have started back up in Luzerne County under this process and, so far, there has been a good response to the juror summonses sent out to the public.


I send thanks to Attorney Stephen T. Kopko of Cummins Law for bringing this article to my attention.

A Primer on the Doctrine of Res Ipsa Loquitur


In the case of Snyder v. Scranton Hospital Co., LLC et al., No. 19-CV-83 (C.P. Lacka. Co. Aug. 28, 2020 Nealon, J.), the court denied the defendants' motions for partial summary judgment that asserted that the Plaintiff should not be permitted to rely upon the doctrine of res ipsa loquitur in support of the claims presented.

According to the opinion, the Plaintiff underwent ear surgery but allegedly awoke with a severe left ulnar nerve neuropathy injury as a result of a compression injury allegedly due to the medical providers' failure to properly position, protect and assess his left arm while he was unconscious during the surgery.

The Plaintiff produced expert opinion evidence that such an injury does not happen during an ear surgery in the absence of negligence on the part of the medical providers.  The Plaintiff asserted that that expert evidence also served to eliminate other potential causes of the injury.

The defense produced its own expert testimony in support of claims that the Plaintiff 's injury was indeed the result of other unrelated causes.

The Court denied the motion given that there was a dispute between the experts as to whether the doctrine of res ipsa loquitur should be applied.  In the end, that issue was left for the jury to decide.

This Opinion offers a detailed recitation of the law surrounding the doctrine of res ipsa loquitur.  Anyone wishing to review this decision may click this LINK.

Doctrine of Res Ipsa Loquitur Reviewed by Pennsylvania Superior Court



In the case Lageman v. Zepp, No. 756 MDA 2018 (Pa. Super. July 20, 2020 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Dissenting Op. by Stabile, J.), the Pennsylvania Superior Court reversed the denial of the Plaintiff’s Post-Trial Motions following a defense verdict in a case involving claims of medical malpractice.

The Pennsylvania Superior Court found that the trial court erred in failing to charge the jury on the doctrine of res ipsa loquitur. The court found that, with the help of expert opinion, Plaintiff had established all three elements of res ipsa loquitur in connection with the Defendant’s performance of the medical procedure at issue. 

The Pennsylvania Superior Court emphasized that, while the doctrine of res ipsa loquitur is usually associated with events that are within the common knowledge of laypersons and not requiring any expert testimony, the doctrine is not foreclosed where the Plaintiff also presents a medical expert offering evidence of other specific negligent conduct. 

This Opinion is also notable for the fact that the court ruled that a medical malpractice defendant is, for purposes of trial, is typically not to be considered an expert on his or her own behalf. 

The court additionally found that it was an abuse of discretion by the trial court to allow the Defendant doctor to demonstrate the procedure in question to the jury. The court noted that, if a demonstration was appropriate, it should have been done by the expert witness and not the party Defendant. 

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion 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.

Wednesday, September 9, 2020

Still Time To Register for Upcoming PADC Zoom CLE - Non-Members Welcome


I have been requested by the Philadelphia Association of Defense Counsel to be a presenter at their upcoming September 15, 2020 one hour long ZOOM CLE beginning at 12:30 p.m. entitled "State of the Courts and Case Law Update."

Attendees will hear from Andrea Tuominum, the Assistant Court Administrator of the Adminstrative Office of the Courts of Pennsylvania (AOPC), and Stanley Thompson, Director of the Philadelphia Court of Common Pleas Complex Litigation Center.  Those speakers will provide an update on the current status of the courts and efforts to return to trials.  Daniel E. Cummins will provide a Case Law Update of recent notable cases.

Here is a LINK to the Registration page if you are interested in signing up for this program.  Here is the LINK for the Advertisement for the event.

I send thanks to Attorney Kathleen D. Wilkinson of the Philadelphia office of the Wilson Elser law firm for this invitation to present.



Assistance has been provided with respect to my  presentation by Exhibit A, a digital trial presentation company located in Philadelphia and Clarks Summit (Scranton), Pennsylvania.  Contact Exhibit A to help you with your case at info@ExhibitADigital.com.


Need CLE Credits? Consider Securing 1.5 Credits at Mediation/Arbitration Tips CLE on September 25th via Zoom


For more information on the upcoming CLE entitled "Mediation/Arbitration Tips" on September 25th see the below flyer.  

This CLE course offers 1.5 Substantive credits.

The program, which has been previously presented in Lackawanna County and Luzerne County, has  received enthusiastically postive reviews following the presentation program including comments such as "FABULOUS job!," "Truly awesome," and "You knocked this CLE out of the Park!

The CLE Program and Powerpoint content was created by Daniel E. Cummins of Cummins Law.  Attorney Cummins will serve as the moderator and presenter during the program, which will include the additional presenters of Judge Thomas Blewitt (ret.), Richard G. Fine, Esq., Gerard J. Geiger, Esq., Thomas B. Helbig, Esq., Lucille Marsh, Esq., Judge Joseph Van Jura (ret.), and Judge Thomas I. Vanaskie (ret.), all of whom brought their ADR expertise to the program and offered additional excellent tips for improved appearances by litigators at both mediations and arbitrations.

Excellent technical, digital, and video assistance will be provided by JP Cardoni of Exhibit A.



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You can also register by sending an email to info2@monroebar.org.

For more information, see the below flyer for the program.



Tuesday, September 8, 2020

Plaintiff-Favorable Decision Out of Lancaster County Applying Gallagher v. GEICO Decision


Another Plaintiff-favorable Gallagher decision has been uncovered, this one out of the Lancaster County Court of Common Pleas.

In the case of Donegal Mut. Ins. Co. v. Krautsack, No. CI-19-04904 (C.P. Lanc. Co. Aug. 28, 2020 Ashworth, J.), the court granted the Plaintiff's motion for summary judgment and denied the carrier's cross-motion for summary judgment relative to issues surrounding the application of a household exclusion in an automobile insurance policy.

This case arose out of a motorcycle accident and a question of the application of a household exclusion contained in one of multiple policies in a household.

The Plaintiff argued that Gallagher should be read as eradicating the household exclusion across the board.  The carrier asserted that Gallagher should be limited to its facts and that the facts in Gallagher were distinguishable from the facts in this case.

This Lancaster County Court applied the Gallagher v. GEICO decision literally and noted that the Pennsylvania Supreme Court "unequivocally" held that household exclusions are uneforceable as a matter of law as they violate the requirements set forth in Pennsylvania's Motor Vehicle Responsibility Law that a carrier secure a written waiver or rejection of stacked UIM coverage for such waiver or rejection to be valid.

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

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

Make Sure You Preserve Objections At Video Deposition of Doctor For Trial


In the case of Talmadge v. Ervin, No. 1070 MDA 2019 (Pa. Super. July 28, 2020 Stabile, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Stabile, J.), the court reversed a Plaintiff’s Post-Trial Motions after the entry of a verdict in favor of the defense in a medical malpractice case. 

This Opinion offers a cautionary tale on asserting objections at trial depositions of experts. 

The Superior Court ruled that the Plaintiffs should have been allowed to introduce a hearsay document at trial concerning the amount of a drug that the decedent had taken because the defense counsel did not make a sufficient objection to that document at the trial deposition where the document was introduced. It was noted that the parties did not enter into any stipulation at the deposition to reserve any objections until the time of trial. 

The court noted that, since the amount of the drug that the decedent had taken was an important issue in the case, the exclusion of that evidence could not have been harmless error. 

The court referred the case back for a retrial and noted that the Defendant may reassert the hearsay objection at the retrial. 

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.

Monday, September 7, 2020

Standard of Review to Open a Default Judgment Reviewed by Superior Court


In the case of Scalla v. KWS, Inc., 2020 Pa. Super. 191(Pa. Super. Aug. 11, 2020 Lazarus, J., Bender, P.J.E., Strassburger, J.) (Op. by Lazarus, J.)(Concurring Op. by Strassburger, J.), the Pennsylvania Superior Court addressed the standard of review with respect to a Defendant’s efforts to open a default judgment.

According to the Opinion, the Defendant was hit with a default judgment in this products liability action. The Defendant’s registered agent received service and signed for it, but never opened the delivery. That agent also later did the same thing with the notice of the intent to take a default judgment.

The Defendant’s first response to the default was an invalid attempt to remove the case to federal court, not an effort to open the default judgment in the state court. The court noted that no Petition to Open the Default Judgment was filed until over 300 days after the Notice of Default was presented.

Moreover, when a Petition to Open was finally filed, it was unverified in violation of Pa. R.C.P. 206.3.

The Pennsylvania Superior Court found that the Defendant’s Petition to Open was properly denied as untimely.

The appellate court additionally agreed with the trial court that the boilerplate allegations in the Defendant’s proposed Answer to the Complaint did not establish, in the required precise, specific, and clear terms, a meritorious defense.

As such, the denial of the Petition to Open a Default Judgment by the trial court was affirmed.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Strassburger's Concurring Decision 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.

Friday, September 4, 2020

Registration Now Open For Upcoming CLE by PADC: "State of the Courts and Case Law Update"


I have been requested by the Philadelphia Association of Defense Counsel to be a presenter at their upcoming September 15, 2020 one hour long ZOOM CLE beginning at 12:30 p.m. entitled "State of the Courts and Case Law Update."

Attendees will hear from Andrea Tuominum, the Assistant Court Administrator of the Adminstrative Office of the Courts of Pennsylvania (AOPC), and Stanley Thompson, Director of the Philadelphia Court of Common Pleas Complex Litigation Center.  Those speakers will provide an update on the current status of the courts and efforts to return to trials.  Daniel E. Cummins will provide a Case Law Update of recent notable cases.

Here is a LINK to the Registration page if you are interested in signing up for this program.  Here is the LINK for the Advertisement for the event.

I send thanks to Attorney Kathleen D. Wilkinson of the Philadelphia office of the Wilson Elser law firm for this invitation to present.

Allegations of Recklessness and Punitive Damages Claims Allowed to Proceed in a Cell Phone Use Case


In the case of Delena v. Tigar, No. C-48-CV-2019-8810 (C.P. Northampt. Co. July 20, 2020 Beltrami, J.), the Court allowed claims of recklessness and punitive damages to proceed beyond Preliminary Objections where the Plaintiff alleged that the Defendant was using an electronic device at the time of the accident and was "willfully not looking where he was driving."

The Plaintiff had also alleged that the Defendant driver was travelling at excessive speeds and in the wrong lane of travel in a parking lot with pedestrians around and failed to slow or stop when approaching a left turn.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Jeremy D. Puglia of the Doylestown, PA firm of Drake, Hileman & Davis for bringing this case to my attention.

Is Uber An Employer of Uber Drivers?


In the case of Lowman v. Unemployment Comp Bd. of Review, 41 EAP 2018 (Pa. July 24, 2020)(Op. by Donohue, J.) (Saylor, C.J. and Mundy, J., Dissenting), the Pennsylvania Supreme Court held, as a matter of first impression, that Uber “controlled and directed the performance of Lowman’s services as a driver-for-hire” and that Mr. Lowman was not engaged in an independently established business.

Essentially, the Court found that the driver's work for Uber was completed within employment with Uber and not as an independent contractor. Uber's argument that the driver was acting in self-employment was rejected.

Some commentators note that this decision may have an impact in personal injury litigation in terms of whether a ride-sharing company can be sued in a motor vehicle accident case as an employer of the defendant driver.

Anyone wishing to review the majority Opinon of the Pennsylvania Supreme Court may click this LINK.

The dissenting Opinion can be viewed HERE.

I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.

Thursday, September 3, 2020

Case Dismissed Where Plaintiff Cannot Describe What Caused Her to Fall


In the case of Cramer v. Wal-Mart Stores East, LP, No. CP-31-CV-1538-2017 (C.P. Huntingdon Co. June 1, 2020 Zanic, J.), the court granted summary judgment in favor of the Defendant store in a trip and fall case where the Plaintiff was unable to describe what caused her to fall. 

According to the Opinion, the Plaintiff alleged that she was walking on the sidewalk in front of a Wal-Mart store when she slipped and fell. The Plaintiff alleged that the sidewalk was covered in debris consisting of mulch, chewing gum, and litter. The Plaintiff asserted that she must have been caused to fall by this debris. 

However, the court noted that, when pressed for more details as to the cause of her fall, the Plaintiff could not provide a description at her deposition of what she slipped on or how she slipped. 

Although the Plaintiff described the sidewalk as having “sticky stuff” on it, the Plaintiff did not claim that her foot stuck to or got caught on anything on the sidewalk. Rather, she simply stated that she slipped. 

The court pointed to the case of Cuthbert v. City of Philadelphia for the proposition that the Plaintiff must be able to describe the cause of a fall down event. Given that the Plaintiff was unable to describe the cause of her fall in this matter, the court granted the Defendant store summary judgment.
Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (August 11, 2020).

Tuesday, September 1, 2020

Lackawanna County Court Addresses Motions in Limine in Podiatric Malpractice Claim


In the case of Latka v. Rieder, No. 19-CV-2078 (C.P. Lacka. Co. Aug. 14, 2020 Nealon, J.), the court addressed issues of allowable proof in a medical malpractice action. 

According to the Opinion, the Plaintiff was bringing this malpractice action against a podiatrist who surgically removed a bone spur from the Plaintiff’s big toe. The Plaintiff asserted that the podiatrist was negligent for recommending and performing that surgery instead of treating the Plaintiff conservatively. The Plaintiff also alleged that the podiatrist was negligent in failing to timely diagnose and properly treat a post-surgical infection which allegedly then caused the Plaintiff to undergo a partial amputation of her big toe. 

The Plaintiff filed a Motion In Limine to preclude the defense from mentioning that infection as a recognized risk of the surgery in question given that the Plaintiff was only advancing negligence claims and not pursing a claim for lack of informed consent. 

Judge Nealon noted that, in a medical malpractice care, evidence that the patient was advised of certain risks of the procedure and still consented to proceed with the surgery is “irrelevant and inadmissible, but evidence of risk and complications that are relevant in establishing the standard of care may be admissible.” 

The court more specifically noted that, evidence that the podiatrist discussed poor healing and bone infection as possible complications of the surgery, and that the Plaintiff chose to undergo the surgery despite being advised of those risks, is clearly inadmissible. However, to the extent that the infection was a recognized complication of the surgery and that the podiatrist considered those risks in making his decision to recommend and perform the surgery, such “risks and complications” evidence is relevant in demonstrating the applicable standard of care. 

As such, Judge Nealon granted the Plaintiff’s Motion In Limine to preclude any informed consent evidence, but denied the motion with respect to any risks and complications evidence that is relevant to the governing standard of care. 

The podiatrist Defendant also filed a Motion In Limine.  The Defendant sought to prevent the Plaintiff from presenting evidence of his alleged failure to document his physical findings in his office chart on the grounds for a cause of action for negligent documentation does not exist in Pennsylvania. 

The court denied the Defendant’s motion to preclude the Plaintiff from presenting evidence regarding the podiatrist’s failure to document given that the Defendant had a professional responsibility to maintain accurate and complete documentation of his treatment of the Plaintiff and given that the podiatrist’s physical examination of the Plaintiff on the date that her recommended surgery is relevant to whether the podiatrist was negligent in recommending that surgery. 

As such, the court noted that the Plaintiff’s podiatric expert would be permitted to testify that the Defendant podiatrist failed to document a complete physical examination such that the Plaintiff’s expert was concluding that the podiatrist did not perform the required examination given that it is not reflected in the office notes. The Plaintiff’s expert would also be permitted to testify that, absent the required examination, the podiatrist was negligent in recommending and performing surgery in the Plaintiff’s expert opinion. 

The court also noted that the Defendant podiatrist may be questioned as to what is and what is not documented in his records. 

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