Tuesday, April 7, 2020

A Three Row Jury Box: Harebrained Idea or a Necessity in a Post-Covid-19 World?


In response to a request for suggestions for ways the Bar and the Bench can navigate the Covid-19 situation, I noted the following.  I still can't tell if it is a harebrained idea or potentially the wave of the future.

One suggestion of mine, with respect to jury trials, was that a third row be added to the jury box, even if that third row is on the outside front of the jury box.  This would enable the 12 jurors and two alternates could spread out more and perhaps sit essentially every other seat.

The third row could at least be on the outside and in front of the box until the jury box wall could me moved outward by a construction contractor so that all 3 rows could be in the box.

Now that you see it, it doesn't look so out of the ordinary.

In the alternative, perhaps in at least civil cases, the requirement that a jury consist of 12 people and two alternates could be reduced to 6 people and 2 alternates.  In this way, the 6 jurors could spread out in the jury box to sit every other seat so has to engage in continued social distancing in the post-Covid-19 world.

Harebrained ideas or the wave of the future?

What do you think?

Recklessness and Punitive Damages Claims Allowed to Proceed in Tractor Trailer vs. Pedestrian Accident


In the case of Molina v. Timmons, No. 1:19-CV-01707 (M.D. Pa. April 2, 2020 Rambo, J.), the court denied a Defendant’s Motion to Dismiss and Strike relative to claims of recklessness and for punitive damages in a case involving a tractor trailer versus pedestrian accident.

According to the Opinion, the Defendant truck driver was allegedly backing up in a rapid fashion near an area that was used for unloading and loading materials when that driver knocked the pedestrian Plaintiff to the ground and ran over the Plaintiff’s midsection with the two right rear axles of the tractor trailer.

The Plaintiff included allegations of recklessness and request for punitive damages in the filed Complaint. The Motion before the court involved the Defendant’s Motion to Dismiss and/or Strike these claims.

The case was originally filed in Luzerne County but removed to the federal court. As such, the Defendant’s motion was decided under Federal Rule of Civil Procedure 12(b)(6).

After reviewing the Complaint, the court in this matter found that the Complaint adequately alleged reckless conduct. The court noted that the Plaintiff alleged that the Defendant tractor trailer driver backed his truck up at an alleged continuous high rate of speed without checking his mirrors, narrowly missing another vehicle, striking and knocking over the Plaintiff with the back end of his trailer, and continuing to drive in reverse over the Plaintiff’s body.

The court found that, accepting these allegations as true and drawing all reasonable inferences in favor of the Plaintiff as required by the standard of review, these allegations sufficiently pled that the Defendant driver knew or should have known that his actions posed a high degree of risk of harm to others and that he nevertheless acted indifferently to those risks.

The court also found, under the same rationale, that the Complaint sufficiently asserted a claim for punitive damages that could move forward in the case.

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

I send thanks to Attorney Clancy Boyland and Attorney Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Building Inspector Found to Be Immune From Claims of Negligence


In the case of Brown v. Taylor Construction and Demolition, No. 13-CV-2727 (C.P. Lacka. Co. April 2, 2020 Nealon, J.), the court addressed a request from a building official for a finding of immunity from claims liability relative to residential construction work.

According to the Opinion, residential property owners, who allegedly suffer damage as a result of negligent construction work by a contractor, filed suit against the contractor and the entity that was hired to act as the borough’s building construction code official to perform inspections and to grant approvals for construction activities upon request by the contractor. 

The Plaintiffs alleged that the contractor completed substandard work without requesting any inspection or obtaining the proper approvals of the work completed. 

The Plaintiffs separately asserted that the building official was allegedly negligent in conducting inspections and in failing to issue stop work orders.

The case came before the court by way of a Motion for Summary Judgment filed by the building official. The building official asserted that he was immune from liability under the International Residential Code and the Political Subdivision Tort Claims Act. 

Judge Nealon noted that, under the International Residential Code, a building construction code official is immune from liability for any act or omission in the discharge of his or her official duties for the borough which occurred while acting “in good faith and without malice.” 

The court noted that, in this matter, the records lacked any evidence to support a claim that the borough construction code official acted with any malice or bad faith. 

Accordingly, the court held that it was free and clear from doubt that the building construction code official was entitled to judgment as a matter of law. As such, summary judgment was granted.

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




Monday, April 6, 2020

Judge Zulick of Monroe County Addresses Issues of Jurisdiction Over Out-of-State Law Firm in Pennsylvania Malpractice Claim


Preliminary Objections by a NY defendant firm contesting jurisdiction in a legal malpractice case were denied in the matter of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.).

The Plaintiff brought this legal malpractice case arising out of an injury which occurred at the Kalahari Resorts Pocono Hotel on December 25, 2015.

The Plaintiff, a NY resident, retained NY counsel to pursue her claim. The defendant firm represented the Plaintiff but eventually wrote to the Plaintiff in October of 2017 terminating the representation and allegedly advising the Plaintiff in that letter that she had three years from the date of the incident to file suit.

The Plaintiff alleges that she relied upon that letter and believed that she had three years to file suit.  The Plaintiff did not file suit within two years of the date of the accident.

The Plaintiff brought this suit for legal malpractice and Defendants filed Preliminary Objections contesting personal jurisdiction, arguing that they did not have minimum contacts with PA, since they lived in NY, practice in NY, were not licensed to practice in PA, and given that the firm did not do any business in the state.

After reviewing the current status of the law on personal jurisdiction, Judge Zulick agreed that the Defendants' contacts with Pennsylvania were not significant and that, as a result, there was no support for a finding of general jurisdiction over the Defendants.

Judge Arthur L. Zulick
Monroe County

However, on the issue of specific jurisdiction, which required the application of Pennsylvania's Long-Arm Statute and the Due Process Clause of the Constitution.  Under that analysis, specific jurisdiction can be found if a defendant's tortious acts or omissions cause harm in Pennsylvania.  The Court found that the Plaintiff's loss of her right to sue was sufficient to satisfy Pennsylvania's Long-Arm statute.

Under the second part of the analysis, Judge Zulick also found that exercising jurisdiction over the case would also not run afoul of the Due Process Clause of the U.S. Constitution.  The Court found that the Defendant firm engaged in minimum contacts with Pennsylvania and purposely availed itself in the Commonwealth of Pennsylvania by seeking to represent a Plaintiff for pecuniary gain in a personal injury matter that arose in Pennsylvania.

In light of this analysis, the Court overruled the Prelminary Objections and ordered the Defendants to file their Answer to the Complaint.

Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Rusty Allen of the Law Offices of W. Austin Allen, II, P.C. of Warminster, PA for bringing this case to my attention.

Sloan Kettering Hospital (NY) Haled Into Court in Philadelphia


In the case of Estate of Albert v. Thomas Jefferson Univ. Hospital, Inc., June Term, No. 1122 (C.P. Phila. Co. Jan. 31, 2020 Massiah-Jackson, J.), the court ruled that it had personal jurisdiction over an out-of-state Defendant after finding that the Defendant had sufficient minimum contacts with Pennsylvania such that the Defendant could have reasonably anticipated being sued in Pennsylvania.

This matter arose out of a medical malpractice action against Sloan Kettering Hospital, which is located in New York. 

The Plaintiff’s Complaint alleged corporate negligence and vicarious liability claims against multiple Defendants with regards to their actions in providing the decedent, David Albert, with allegedly false information about his medical imaging results. The case involved the results of an MRI which the decedent had completed in New York. At all relevant times, the decedent was a resident of Pennsylvania. 

Defendant Sloan Kettering moved for summary judgment arguing that the court did not have personal jurisdiction over it. That Defendant asserted that the Plaintiff had failed to establish any action taken by Sloan Kettering or its agents that caused harm to the decedent in Pennsylvania. 

The Plaintiff responded by arguing that negligent claims involved injuries that occurred while the decedent was present in Pennsylvania. The Plaintiff stated that Sloan Kettering contacted the decedent in Pennsylvania and allegedly provided him with false information about his MRI results. Sloan Kettering then allegedly failed to timely forward those imaging results to the decedent’s physicians, who were located in Pennsylvania. The Plaintiff also alleged that Sloan Kettering promised to coordinate the decedent’s care but that it had failed to communicate with his medical providers who were located in Pennsylvania. The Plaintiff alleged that these steps, and others, allegedly resulted in harm to the decedent in Pennsylvania. 

The court noted that due process law permits specific jurisdiction over a defendant to be found where a defendant engaged in numerous contacts with a forum state. 

The court noted that Sloan Kettering had promoted a treatment program and had promised the decedent and his family to coordinate his care and monitor his medical services. The court also noted that Sloan Kettering had engaged in national marketing and recruitment for its clinical trials, including activities in Lehigh Valley, Pennsylvania. 

The court in this matter found that specific jurisdiction over the Defendant hospital was established based upon the hospital’s extensive contacts with Pennsylvania. After finding that the Plaintiff had met its burden of establishing that the hospital allegedly caused harm to the decedent in Pennsylvania its acts and omissions, the court concluded that Sloan Kettering should have reasonably anticipated being called into court in Pennsylvania. 

As such, the hospital’s Motion for Summary Judgment on jurisdictional issues was denied. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2020).




Friday, April 3, 2020

Appeal From a Default Dismissed Where Plaintiff Did Not First File Petition To Open or Strike Default



In the case of Cardona v. Buchanan, 2020 Pa. Super. 55 (Pa. Super. March 9, 2020 Olson, J., Nichols, J., Stabile, J.) (Op. by Stabile, J.), the court found that where a trial court entered a judgment of non pros due to a Plaintiff’s failure to prosecute her suit and the Plaintiff thereafter failed to file a Petition to Open the Judgment before appealing, the Plaintiff waived the single issue raised on appeal. 

This matter arose out of a slip and fall incident that occurred in 2005. The Plaintiff began the lawsuit by way of a Writ of Summons in 2007. She thereafter filed a Complaint in November of 2009. 

Nine (9) years later, in November of 2018, the Defendant filed a Motion to Dismiss the action for lack of prosecution. That motion is granted and the case was dismissed with prejudice. The Plaintiff then filed an appeal to the Superior Court without first filing a Petition to Open the Judgment. 

On appeal, the Superior Court found that the Plaintiff waived her objection to the non pros order by failing to file a Petition to Open. The court cited to Pa. R.C.P. 3051 which provides that relief from a judgment of non pros shall be sought by way of a Petition to Strike or Open the Judgment. The court also noted that Rule 3051 mandates that a Plaintiff file the Petition to Open with the trial court before appealing to the appellate court. 

The Superior Court further noted that, since Petitions to Open Default Judgments of Non Pros are mandatory, any appeal related to a judgment of non pros should be made not from the judgment itself but rather from a denial of a Petition to Open or Strike that Judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 25, 2020).

Thursday, April 2, 2020

Summary Judgment Denied in Limited Tort Case


In the case of Braniff v. Hartjei, No. 11022-CV-2017 (C.P. Lawrence Co. Aug. 12, 2019 Cox, J.), the court denied a Motion for Partial Summary Judgment based upon the Plaintiff’s election of the Limited Tort option.

After reviewing the law of the case of Washington v. Baxter, the court in this Braniff case noted that the Plaintiff alleged that the accident caused bulging discs and a radiculopathy with respect to her cervical spine. It was noted that the Plaintiff’s cervical spine range of motion decreased following the accident. The Plaintiff additionally complained that she could no longer sit or stand for prolonged periods of time.

The Plaintiff also asserted that her ability to ride in a car was hampered. She additionally noted that her ability to perform the duties of her job, which required her to train other people, was limited.

At her deposition, the Plaintiff also noted that she had difficulty performing her household chores, such as doing the laundry. She additionally testified to having to give up some of her recreational activities.

The court also noted that the Plaintiff was continuing to receive treatment for her injuries from the accident and that surgery was a possibility in her future.

In denying the Defendant’s limited tort Motion for Summary Judgment, the court emphasized that the focus of the inquiry was not on the injuries themselves, but on how the injuries affected the Plaintiff’s bodily functions. The court additionally reaffirmed the rule of law that any alleged impairments did not have to be permanent in order to be considered serious in the context of a limited tort case.

As the court found that reasonable minds could differ on the issue of whether the Plaintiff had sustained a serious injury or a substantial body impairment as a result of the accident, the Motion for Summary Judgment was denied.

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


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

*     *     *     *     *

CONTACT CUMMINS LAW TO DEFEND YOUR LIMITED TORT CASE
www.CumminsLaw.net

dancummins@CumminsLaw.net





Wednesday, April 1, 2020

A Little Humor......

This article of mine is reprinted here, with permission, from the October 22, 2007 issue of the Pennsylvania Law Weekly. 



LEARNING LESSONS FROM LAWYER JOKES:

Don’t be upset – use them as a motivator to improve, and discredit their sting

by

DANIEL E. CUMMINS, ESQUIRE


Lawyer jokes are an amusing, sometimes annoying, part of the practice. You’ve heard one, you’ve heard them all. With the negative sting of many of the lawyer jokes, it is easy to wince and give a wan smile while others laugh out loud with forced glee at the telling of such jokes.

Q: What’s the problem with lawyer jokes?

A: Lawyers don’t think they’re funny, and no one else thinks
they’re jokes.

Unfortunately, it is said that jokes in general require some modicum of truth to help make them funny. The act of getting upset at being the brunt of such jokes may lend them credence and may only serve to foster the telling of lawyer jokes. Perhaps a better way to react to lawyer jokes is not to be upset by them, but rather to use them as a motivator to better your practice and thereby contribute to improving the image of attorneys as a whole.


Q: How do you get a group of lawyers to smile for a picture?
A: Just say, “Fees!”

A main complaint by the public with lawyers is the fees charged and the manner in which they are charged. One way to avoid such criticism is to, wherever possible, politely remind the client that the result they seek, or have obtained, may not have been realized without the legal expertise provided.

In other cases where a favorable result for the client is not likely, the better practice may require an attorney to be up front with clients early in the attorney-client relationship about the futility of their claim or defense. This may serve to streamline the case, result in a quicker resolution, and save the client money in the long run, thereby improving the reputation of the attorney in terms of fees saved as a result.

Another way to avoid client complaints regarding the fees charged is to provide detailed, itemized bills that fully describe the services rendered. Clients may also be better served, as well as attorney reputations, if the clients are not unnecessarily double billed in the form of multiple attorneys or staff working on a single task.

Where a dispute arises with the client over attorney charges, it may also be the better practice to immediately attend to client questions about a bill with a willingness to compromise hopefully being present on both sides of the issue. A satisfied client obviously may be a repeat client or a source of other referrals. Therefore, a squabble over a few dollars in a present matter may not be worth the cost of other cases that could be realized in the future.

Another proactive way lawyers may offset the negative public perception regarding attorney fees may be through giving back to the community. Donations to local charities, volunteering time at local fundraisers, and participating in pro bono legal work all serve to display attorneys in a better light.


Q: Did you hear about the lawyer hurt in an accident?

A: An ambulance stopped suddenly.
There is probably no more common complaint against attorneys than their sometimes voracious pursuit of new clients. Yet, in a competitive world with a glut of attorneys, it appears that seeking out clients and attorney advertising is a necessary evil to support one’s practice.

Lawyers are commonly criticized for their rampant and sometimes crass advertisements and commercials. Perhaps a way to blunt such criticism is to instill more creativity into the advertising, maybe even humor, as opposed to the standard commercial of a somber attorney lamenting the woes of personal injuries and his or her ability to make all well again through a lawsuit.

One way to perhaps attract other clients is to include past clients in the advertising praising the positives of their experience with that attorney or firm. In this manner, rather than having the attorney patting himself on the back, the public will be hearing another member of the public speaking favorably of his or her experience.

In any event, attorneys should be mindful of the Rules of Professional Conduct 7.2 and 7.2 regarding “ambulance chasing” or direct contact with potential clients. Generally speaking, direct in-person solicitation of a prospective client by a lawyer is also frowned upon by the disciplinary board and should be avoided.

Q: What do you get when you cross a librarian with a
lawyer?


A: All the information you need, but you can’t understand a word of it.

* * * * * * *

Q: What do you get when you cross the Godfather with a
lawyer?

A: An offer you can’t understand.
Another common complaint about lawyers and legislators is their obstinate refusal to speak in plain, ordinary terms. Lawyers insist on using big words when little words would suffice [uh, when little words would do]. Legal jargon and Latin terms are still routinely used even though they should be avoided wherever possible when dealing with the public.

The problem of some lawyers refusing to utilize plain language has grown to the extent that awards are given out by the Bar when a lawyer is found to have fostered the use of plain English in his practice. So perhaps lawyer jokes in this regard can serve as a reminder to use plain English in our speech and writing whenever possible.


Q: How many lawyers does it take to change a light bulb?

A: None, they’d rather keep their clients in the dark.
Since the dawn of legal practice, clients have complained about the failure of lawyers to keep them apprised as to the status of their case. The problem had apparently more recently become so common that Rule of Professional Conduct 1.4 was promulgated which, in part, requires every attorney to “promptly comply with reasonable requests for information” and to otherwise “keep the client reasonably informed about the status of the matter.”

Perhaps if attorneys strived to keep their clients informed with a call or a letter every thirty to sixty days, there would be one less ‘how many lawyers does it take to change a light bulb’ joke.


Q: “You seem to be in some distress,” the judge said to the witness. “Is anything wrong?”

A: “Well, your Honor,” said the witness, “I swore to tell the truth, the whole truth, and nothing but the truth, but every time I try, some lawyer objects.”
The lesson to take from this joke is to keep objections to a minimum at trial. By objecting only when truly necessary, an attorney may be able to avoid the public perception, by a jury no less, that the attorney is attempting to hide something, or worse yet, is a bully.

To prevent any adverse inferences by the jury to an objection, it may also be wise to give a short explanation for the basis of the objection. Giving this short explanation may not only explain to the jury the valid reason for the objection, but may also be crucial for properly preserving the objection as a basis for an appeal.

It may also be wise, whenever possible, to keep sidebar conferences with the judge to a minimum. Despite the best of instructions to a jury from a judge that sidebar conferences are a necessary part of a trial to deal with tangential issues, a jury will likely always feel that something is being kept from them and will also grow impatient with the delays caused by the conferences. The better practice may be to anticipate issues that may arise and address them with the court before the jury is brought into the room and put into the jury box.


Q: What’s the difference between a good lawyer and a great lawyer?

A: A good lawyer knows the law. A great lawyer knows
the judge.
This joke brings to mind scenes from The Verdict with Paul Newman and Civil Action with John Travolta and Robert Duvall in both of which movies is a pivotal scene in which the underdog lawyer is called into the judge’s chambers only to find the more experienced opposing counsel already in chambers having a friendly ex parte chit-chat with the judge. While friendly and courteous relations are to be encouraged between lawyers and the bench, attorneys and judges should strive to avoid the perception of the public, and of out-of-town attorneys, of any favoritism once the matter gets underway.


Q: How many lawyer jokes are there?

A: Just three, all the rest are true.
Lawyer jokes have unfortunately been an undying breed since the time of Shakespeare. Even up to today, on any given week, Leno or Letterman will unleash a zinger against lawyers to the delight of their audiences. On the internet, a simple Google search will reveal numerous web pages devoted to lawyer jokes.

While such jokes may never become extinct, their impact can be lessened by improved attorney conduct. Unfortunately, lawyers are not always adept at displaying themselves in the best light possible which is in part due to the adversarial and competitive nature of the practice. There will also always be some bad apples who will continue to highlight and foster a negative view of lawyers as a whole.

Yet, continued efforts by all members of the bar to better the image of lawyers through open and plain communication, professional and courteous behavior in the public eye, community service, and the zealous but sensible pursuit of justice on behalf of clients can all only serve to discredit the sting of lawyer jokes.

Daniel E. Cummins, Esquire is an insurance defense/coverage attorney with the Clarks Summit, Pennsylvania law firm of Cummins Law (www.CumminsLaw.com). In addition to being a civil litigation columnist for the Pennsylvania Law Weekly, he also writes for his own blog, Tort Talk, which provides updates on Pennsylvania civil litigation and insurance law issues (www.TortTalk.com).

Tuesday, March 31, 2020

Claim of Spoliation of Video in Slip and Fall Case Rejected


In the case of Pace v. Wal-Mart Stores East, LP, No. 18-3313(3d Cir. Jan. 28, 2020 Chagares, J., Greenaway, J., Greenberg, J.) (Op. by Chagares, J.)[Non-Precedential], the court affirmed the entry of summary judgment in favor of the defense in a slip and fall case.

Notably, the court affirmed the lower court’s ruling that the Plaintiff had failed to establish that the Defendant store had spoliated any surveillance video of the Plaintiff where the Plaintiff fell.

In this regard, the court noted that the Plaintiff did not have any evidence that any such video existed in the first place, let alone that it was destroyed.

The court also noted that the record confirmed that the alleged fall took place in a blind spot in the Defendant’s store in terms of any video surveillance.

On the liability issue, the court noted that there was no evidence in the record to establish that the Defendant either created the hazard or had any constructive notice of an allegedly defected condition. 

Anyone wishing to review a copy of this non-precedential 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, March 30, 2020

Bring Your Case To A Close With Cummins Mediation Services


Why wait to bring your case to a close?  Claims professionals are still working, albeit remotely, and desire to move your cases.

Please consider retaining CUMMINS MEDIATION SERVICES to assist in settling your cases.

We are willing to work remotely with all parties and participants and there would be no additional costs associated with the use of our in-house technology measures.

Your case can be moved forward and CUMMINS MEDIATION SERVICES is ready to assist in this regard.

Please contact Dan Cummins today at dancummins@CumminsLaw.net or at 570-319-5899 for a CV and a Fee Schedule and to schedule your Mediation.


First Time Skier Gets a Pass


In the case of Aldosari v. Tuthill Corp., No. 17-0626 (C.P. Carbon Co. Dec. 13, 2019 Nanovic, J.), the court denied a Defendant’s Motion for Summary Judgment in a skiing accident case.

According to the Opinion, the Plaintiff, who was a resident of Saudi Arabia was a 17 year old individual who had never skied before the subject incident.  The Plaintiff testified at her deposition that she was unfamiliar with the necessary skills or inherent risks of skiing.

After disembarking from the chair lift on her first trip up to the top of the slope, the Plaintiff developed cold feet and was too scared to ski downhill. The Plaintiff asked a lift attendant if there was another way for her to reach the bottom of the hill without skiing. The Plaintiff was told that there was no other way down.

The Plaintiff alleged that she was therefore forced to assume the risk of skiing downhill on her own as the only means of returning to the bottom.

When the Plaintiff began to ski down, she turned to avoid another skier, lost control, and skidded or rolled into a wooded area beyond the edge of the trial and sustained injuries as a result.

In her lawsuit, the Plaintiff asserted that, by failing to provide an alternate means for her to come down the mountain under the circumstances presented, the resort was negligent and breached a duty of care that it owed to her as a business invitee.

The Defendant resort filed a Motion for Summary Judgment and asserted that the Plaintiff’s claims were barred under the Skier’s Responsibility Act, 42 Pa. C.S.A. §7102(c), given that the Plaintiff’s injuries were a direct result of one or more of the inherent risks of skiing for which she assumed the risk of injury.

In his Opinion, Judge Nanovic wrote that, as a matter of law, a person who participates in the sport of downhill skiing is charged with knowing and accepting the danger of injury from risks inherent and necessary to the sport, even if the skier is in fact ignorant of these risks and does not consent to assume those risks.

Yet, although the Plaintiff  in this matter was engaged in the recreational sport of downhill skiing at the time of her injury, the court found that the risk that a first time skier would vacillate and change her mind was beyond the scope of the Skier’s Responsibility Act.

The court noted that the circumstances presented in this case did not alter the otherwise applicable common law standards of reasonable care in determining whether the ski resort owed a duty to the Plaintiff after she reached the top of the mountain and told one of the resort’s employees that she was too scared to ski downhill and needed help getting back down.

The court also noted that, under the case presented, an issue of fact was raised for the jury to consider as to whether the Plaintiff had voluntarily engaged in the sport of downhill skiing at the time of her injury. To the contrary, it appeared to the court that the Plaintiff was compelled to attempt to ski down and, therefore, may not have voluntarily assumed the risk in the same sense of one who, freely by choice, purposefully elects to ski down the side of a snow covered mountain.

Given these issues raised, the court denied the request for summary judgment.

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

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

Saturday, March 28, 2020

CUMMINS LAW DEFENDS POST-KOKEN MOTOR VEHICLE ACCIDENT MATTERS



The Attorneys at CUMMINS LAW defend Post-Koken motor vehicle accident matters in all Counties all across Northeastern Pennsylvania.

We pledge to deliver our legal services in the most prompt, efficient and responsive manner possible.

Attorney Cummins is the only insurance defense attorney in all of northeastern Pennsylvania to be selected to appear in The Best Lawyers in America Directory under the category of Personal Injury Defense.   He is also AV-Rated by the Martindale-Hubbell Directory and is a past recipient of the Pennsylvania Defense Institute's "Distinguished Defense Counsel of the Year Award."

Call or write today to discuss the defense of your claim:
Phone:  570-319-5899
Email: dancummins@CumminsLaw.net

www.CUMMINSLAW.net

Friday, March 27, 2020

"Threadbare" Facts Found Not To Support Insurance Bad Faith Claim


In the case of Diaz v. Progressive Advanced Ins. Co., No. 5:19-CV-06052-JDW (E.D. Pa. Feb. 21, 2020 Wolson, J.), the Eastern District Federal Court dismissed a first party property damage bad faith case under a finding that the Plaintiff did not state a valid cause of action based upon a pleading of  “threadbare” facts.

The court noted that the Plaintiff basically asserted in the Complaint that he had a policy with the carrier, that his car was damaged in a vandalism event, that he had submitted a proof of loss, that he had been truthful throughout the investigation, and that the carrier denied the claim. The court noted that these allegations did not establish any plausible claim of bad faith.

The court also confirmed that there is no common law bad faith cause of action in Pennsylvania for refusing to pay benefits or as to claims handling. It is noted that the Plaintiff did not oppose this part of the Motion to Dismiss. 

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 fellow blogger, Attorney Lee Applebaum of the Philadelphia law offices of Fineman Krekstein & Harris, for bringing this case to my attention. Attorney Applebaum is also the creator and writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog which can be viewed HERE.

Claim of Bad Faith Delay of 6 Months in Opening UIM Claim Allowed To Proceed Forward


In the case of Angeli v. Liberty Mutual Ins. Co., No. 3:18-cv-703 (M.D. Pa. March 11, 2020 Mariani, J.), the court issued a lengthy Opinion in which it denied the carrier’s Motion for Summary Judgment in this bad faith claim arising out of a UIM matter.

Of note, the court addressed whether a delay by a carrier in opening a UIM claim as requested by its insured could amount to reckless indifference in order to support a bad faith claim.

According to the Opinion, there was an undisputed delay of about six (6) months in opening the file. During that time, the insured’s attorney had written to the carrier on multiple occasions making a claim, sending a demand, and asking for documents. However, the attorney did not receive any response to these inquiries and no UIM claim file was opened over the first six (6) months of the claim.

It was allegedly only after the insured called the carrier directly and asked to speak to an adjuster that a file was opened and an adjuster was assigned.

The court found that the issue of whether this alleged lack of responsiveness and lack of activity over a six (6) month period could amount to reckless indifference was a question for the jury to decide.

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention. Attorney Applebaum is affiliated with the Philadelphia law firm of Fineman, Krekstein & Harris.

Thursday, March 26, 2020

Judge Nealon Addresses Potential Liability of Out-of-Possession Landlord in a Dog Bite Case


In the case of Vicki v. Altuner, No. 17-CV-3602 (C.P. Lacka. Co. March 12, 2020 Nealon, J.), the court addressed issues of liability with respect to a dog’s owner and an out-of-possession landlord in a case where a jogger was allegedly attacked and bitten by unrestrained pitbulls.

According to the Opinion, there was evidence in the case that the landlord had prior knowledge that the dog had bitten and attacked the landlord’s handyman twenty (20) days since the incident.

The out-of-possession landlord Defendant filed a Motion for Summary Judgment asserting that she did not owe any duty of care to the jogger since she did not have any prior knowledge as to the pitbulls’ dangerous propensities. In the alternative, the out-of-possession landlord asserted that she cannot be found to be breached any duty given that she had already initiated an eviction proceeding against the owner for non-payment of rent at the time the tenant’s dog attacked the jogger. 

The Motion for Summary Judgment was denied as the court found that there were issues of fact on the liability questions presented.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that, even though the landlord had already begun eviction proceedings, the landlord also had other avenues available to remove the dogs from the premises after the prior attack upon the handyman, such as seeking immediate injunctive relief or the intervention of a local animal control authority in order to have the dogs removed. Given this issue, and other issues noted in the Opinion, the summary judgment was denied. 

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

Third Circuit Reviews Statute of Limitation Issues in Context of Bad Faith Claim (Not Precedential)


In the case of Finegold v. Brooks, No. 19-1495 [Not Precedential] (3d. Cir. Jan. 24, 2020 Jordan, J., Scirica, J, Rendell, J.) (Op. by Scirica, J.), the Third Circuit Court of Appeals affirmed a trial court’s finding that the two (2) year statute of limitations for bad faith action barred this suit where the alleged bad faith conduct occurred in 2011 and the suit was not filed until 2019.

The Third Circuit rejected the Plaintiff’s argument under the discovery rule as well as the Plaintiff’s argument that there was a continuing breach that restarted the statute of limitations.

In this regard, the Third Circuit noted that, in terms of an alleged continuing breach, under Pennsylvania law, the statute of limitations “runs when the first denial occurs, but continuing or subsequent denials do not newly trigger the statute of limitations.”

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

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and of the Philadelphia law firm of Fineman Krekstein and Harris for bringing this case to my attention.

Insurance Policy's Limitation of Action Provision Upheld


In the case of Mazzoni v. Travelers Home & Mut. Ins. Co., No. 3:19-cv-2169 (M.D. Pa. Feb. 13, 2020 Mannion, J.), the court dismissed a contract and bad faith case under a statute of limitations argument.

According to the Opinion, the carrier denied coverage on November 3, 2015.

The Plaintiff did not sue for breach of contact or bad faith until September 20, 2019.

The carrier moved to dismiss the breach of contract claim based upon a two (2) year statute of limitations contained in the policy itself. The carrier also moved to dismiss the bad faith claim under the two (2) year statute of limitations under Pennsylvania law.

The court upheld a two (2) year suit limitation contained in the policy as there was no merit to the Plaintiff’s claim that Pennsylvania’s four (4) year statue of limitations with contract claims under 42 Pa. C.S.A. §5501 should control in the case. This was particularly so where the Plaintiff did not allege that the carrier led the Plaintiff to believe that the two (2) year limitations period contained in the policy would not be enforced, or that the carrier took any steps that induced the Plaintiff to file her Complaint after that two (2) year deadline.

The contract claim was therefore dismissed with prejudice.

With regard to the bad faith claim, the court would not let the Plaintiff escape the statute of limitations issue by virtue of the Plaintiff leaving out of the Complaint the date upon which the carrier had denied coverage, or by not attaching the denial letter to the Complaint.

The court stated that it could rely upon and review the November 3, 2015 denial of coverage letter since the Defendant attached that letter to its Motion to Dismiss.

Judge Mannion found that there was “no doubt” that the two (2) year statute of limitation on the bad faith claim began to run when the insured first learned that the carrier was denying coverage. As such, the statutory bad faith claim was found to be barred in this matter as well.

The court also rejected the Plaintiff’s efforts to assert a common law bad faith claim that would allegedly be subject to a four (4) year contract statute of limitations. The court noted that, separate and apart from the fact that the Complaint alleged a statutory bad faith claim, under Pennsylvania law, a common law bad faith claim is solely a contract based claim in Pennsylvania and is deemed to merge with the breach of contract claim. Accordingly, the court found that the alleged common law bad faith claim would be subject to the same two (2) year contractual limitation period at issue in this case.

The court additionally noted that, in any event, common law bad faith claims did not apply to first party property damage claims as were at issue in this case.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for continuing updates on important bad faith cases in Pennsylvania and New Jersey.

Superior Court Adopts Test For Staying a Civil Lawsuit While Criminal Charges Pending


In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test established by the federal courts for determining whether to stay a civil case pending resolution of a related criminal matter.  The court cited to the federal case of In re Adelphia Communications, No. 02-1781, 2003 WL 22358819 (E.D. Pa. 2003).

The six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case are, as follows:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests


In Keesee v. Dougherty, a three-judge Superior Court panel unanimously reversed a decision by the trial court judge who denied the defendants’ motion to stay the proceedings.  The Superior Court remanded the case for further consideration.

The Keesee decision is also notable for the Superior Court's analysis and application of the collateral order doctrine to allow the review of this appeal in the first place.

Anyone wishing to review this decision may click this LINK.


Source:  Article: "Judge Ordered to Reconsider Motion to Stay Civil Suit Against 'Johnny Doc' Pending Criminal Case" by Zack Needles of The Legal Intelligencer (March 18, 2020).

Wednesday, March 25, 2020

Judge Williamson of Monroe County Molds Excess UIM Jury Verdict Down To Policy Limits and Then Allows Delay Damages


In the Post-Koken case of Kanyuck v. Hamilton, No. 83-CV-2018 (C.P. Monroe Co. March 4, 2020 Williamson, J.), Monroe County Court of Common Pleas Judge David Williamson agreed to mold an excess UIM jury verdict down to the policy limit and but also rejected the carrier's argument that delay damages cannot be applied to a jury award on an underinsured motorist claim.  The court did agree with the carrier's position that delay damages must be calculated based upon on the policy limits rather than the full amount of the verdict.

With regards to molding the jury's verdict down to the UIM policy limit, the Court noted that the defense had pled the policy limit as an affirmative defense in its New Matter pleading.  Applying contractual principles, the court found that the contractual language regarding the policy limit amounted to a cap on damages in this UIM matter.

However, the Court also allowed for Rule 238 delay damages even though those types of damages apply to negligence matters.  Judge Williamson noted that even though a UIM claim was a contract action, it was a claim that allowed recovery under tort principles.

Judge David J. Williams
Monroe County

The Court noted that “[t]he plaintiff must still prove negligence, causation and damages at trial as to the tortfeasor. The damages recoverable at trial are the same that the plaintiff seeks from the tortfeasor. For this reason, Pa.R.C.P. 238 was clearly intended to apply to UM and UIM claims. Here, a demand was made for policy limits, Progressive offered substantially less, and following a trial, plaintiff was awarded a great deal more. As such, delay damages are due.”

However, Judge Williamson, pointing to the Pennsylvania Supreme Court’s 2012 ruling in Marlette v. State Farm that delay damages in uninsured motorist cases are calculated based upon the UM policy limits, ruled UIM delay damages must be applied the same way.

Anyone who wishes to review this Kanyuck decision may click this LINK.

In the source March 19, 2020 Legal Intelligencer article entitled "Trial Judge Says Delay Damages Apply to UIM Jury Verdicts -- But Only on Policy Limits" by Zack Needles on this case it was noted that the Plaintiff had appealed this case up to the Superior Court.

The Tort Talk post on the Pennsylvania Supreme Court's decision in the Marlette case can be viewed HERE.

Also, here is a LINK to my previous article from January 8, 2013 on the issue of calculating delay damages in Post-Koken cases.

PAST ARTICLE: "Lawyers, Look After Yourselves"


Here's a LINK to my article entitled "Lawyers, Look After Yourselves," which first appeared in the Pennsylvania Lawyer magazine back in the July/August 2103 edition and in which tips are provided to help improve one's overall well-being.  Take care and be well.

Tuesday, March 24, 2020

Summary Judgment Granted in Trip and Fall Case Due To Failure of Evidence as to Cause of Fall


In the case of Koscinski v. Ahrat’s Market, No. 5977-CV-2017 (C.P. Monroe Co. Dec. 20, 2019 Harlacher Sibum, J.), the court granted summary judgment in favor of the Defendant operator of a supermarket and the landlord who leased the property in a case where the Plaintiff failed to produce any evidence as to the cause of her slip and fall.

According to the Opinion, the Plaintiff allegedly slipped and fell while walking into the market. She alleged that she fell due to a defective condition which she simply described as "the sidewalk at the ramp." 

The market was part of a plaza of stores. 

The court noted that, where a landlord leases to multiple tenants but retains control and possessing of the common walkways, it is the landlord, and not the tenants, or owes a duty to the business invitees to keep the common areas safe, unless a contrary provision is noted in a lease. 

The court noted that, in this case, the incident occurred in a common area of the property. 

Given that the market had no duty to maintain a common area under the lease or under Pennsylvania landlord/tenant law, summary judgment was entered in favor of that party. The court additionally noted that the Plaintiff failed to provide enough evidence to prove the cause of her injury. 

Judge Jennifer Harlacher Sibum
Monroe County

Given that the Plaintiff did not produce enough evidence to show the cause of her injuries, the landlord was dismissed as well. 

Judge Harlacher Sibum noted that the Plaintiff had repeatedly stated in her deposition that she did not know what caused her or her mother-in-law to fall and that she did not remember hitting anything with her foot or tripping on anything. The court also noted that the Plaintiff’s mother-in-law was also unable to provide any information regarding the cause of incident.

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

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

Motion To Dismiss Granted in Trip and Fall Case Due To Open and Obvious Condition


In the case of Moknach v. Presque Isle Downs, Inc., No. 1:18-CV-261 (W.D. Pa. March 2, 2020 Baxter, J.), a Defendant’s Motion to Dismiss was granted in a premises liability matter.

After reviewing the facts before it, the court ruled that a Defendant landowner did not owe any duty to a Plaintiff business invitee to prevent her from tripping over a large sign stored on the outdoor patio of a casino which the Plaintiff and her husband frequented.  The sign was red and several feet in length.   

The court agreed with the defense that the object was an obvious hazard. The court reiterated the rule of law that a person must look where he or she is going. The court found that the Plaintiff had an obligation to observe her surroundings and did not. 

As such, the Defendant’s Motion to Dismiss was granted. 

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, March 23, 2020

Superior Court Upholds Order to Produce Physician's Credentialing File in Med Mal Case


In the case of Leadbitter v. Keystone Anesthesia Consultants, Ltd., 2020 Pa. Super. 36(Pa. Super.  Feb. 12, 2020, Bender, P.J.E., Dubow, J., Ford Elliott, J.) (Op. by Dubow, J.), the Pennsylvania Superior Court affirmed a trial court Order directing a hospital to produce the unredacted credentialing file for a physician since the credentialing committee was found to be a “review organization” and given that the Healthcare Quality Improvement Act did not preclude production of that file. 

The Superior Court noted that the trial court had properly relied upon the case of Reginelli v. Boggs, 181 A.3d 293 (Pa. 2018) in ruling in this fashion. 

According to this Opinion, this case arose out of medical treatment completed by the Plaintiff under the care of various Defendants, after which the Plaintiff allegedly suffered a series of strokes that left him substantially impaired. The Plaintiff asserted negligence on the part of the hospital and various Defendants. The Plaintiff also filed a separate negligence action against the physician at issue. 

During the course of discovery, the Plaintiff served Interrogatories hospital Defendants seeking the “complete credentialing and/or privilege file” for the physician. 

In response, the hospital produced what it determined was discoverable and redacted parts of documents it claimed were privileged. 

That discovery issue became part of the Plaintiff’s Motion to Compel the production of the unredacted credentialing file. As noted, the trial court allowed for this production and the Superior Court affirmed. 

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 25, 2020).

Sunday, March 22, 2020

NEED TO BRING YOUR CASE TO A CLOSE? CONSIDER CUMMINS MEDIATION SERVICES


Why wait to bring your case to a close?  Claims professionals are still working, albeit remotely, and desire to move your cases.

Please consider retaining CUMMINS MEDIATION SERVICES to assist in settling your cases.

We are willing to work remotely with all parties and participants and there would be no additional costs associated with the use of any of our in-house technology measures.

Don't feel paralyzed by the current state of affairs.  Your case can be moved forward and CUMMINS MEDIATION SERVICES is ready to assist in this regard.

Please contact Dan Cummins today at dancummins@CumminsLaw.net or at 570-319-5899 for a CV and a Fee Schedule and to schedule your Mediation.

Saturday, March 21, 2020

KEEPING IT REAL

If you've been made nervous by the news, stick to the World Health Organization's site and the CDC's site and the Pennsylvania Department of Health's site for your information sources and updates.

Also, here's a LINK to an article by one doctor from Mount Sinai Icahn School of Medicine in NYC with his assessment of the COVID-19 outbreak that may put COVID-19 in perspective and calm your fears.



KEEP CALM, KEEP SAFE

Relative to the C-virus that has taken over the entire world's attention, away from the hysteria-stoking and fear-invoking major news networks, one can find sensible articles that confirm the normal course that most people will face if they become infected with the virus, along with instructions as to when you should become concerned enough to seek out medical help.

One such article, from March 14, 2020 and written by Knvul Sheikh of the New York Times and entitled "Your Nose Itches.  Is It Allergies, Flu, or the Coronavirus?" can be viewed HERE.




Friday, March 20, 2020

Issues Regarding Section 1734 Sign Down Form For Lower UIM Coverage


Several issues of note were addressed in the Post-Koken case of Gibson v. State Farm Fire and Casualty Company, No. 18-4919 (E.D. Pa. Feb 18, 2020 Rice, M.J.). The decision addresseded the validity of a Section 1734 sign down form following the entry of an excess verdict after a Post-Koken trial seeking UIM benefits.

In this case, the application for coverage was executed on April 22, 2016 and the boxes to select reduced UIM coverage were checked.

However, the application contained language confirming that the coverage was not binding until all forms were executed.

The subject motor vehicle accident occurred on May 5, 2016, which was less than a month after the policy was purchased.  The forms to select the lower UIM coverage were not signed by the insured until 19 days after the accident.  By signing those forms, the insured had acknowledge her selection of $300,000 in UIM coverage despite a right to elect $750,000 in UIM coverage.

The Plaintiff argued that the UIM coverage at the time of the accident was equal to the liability coverage because the required form was not signed until after the accident. The carrier argued that that the mandates of Section 1734 were met as the original application constituted a “request in writing” and that the signature on the coverage selection form “confirmed” the selection.

The Court, through a federal district magistrate, found that State Farm's own documents had a built-in ambiguity. State Farm’s own documents stated that the coverage selection was “required.” Therefore, the insured needed more information before the sign down was to be deemed effective.  As such,, the insured receive the higher coverage because the form was not sign until after the accident in question.

Anyone wishing to review this decision may click this LINK.

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

Summary Judgment Granted on Post-Koken Bad Faith Claim


In the case of Stewart v. Geico, No. 2:18-cv-00791-MJH (W.D. Pa. Feb. 19, 2020 Horan, J.), the court granted the carrier’s Motion for Partial Summary Judgment and dismissed the Plaintiff’s bad faith claim after finding that the Plaintiff failed to produce sufficient evidence for any jury to reach a finding of bad faith by clear and convincing evidence.

According to the Opinion, this matter arose out of a motor vehicle accident during which the Plaintiff was struck as pedestrian.

In its Opinion, the court noted that a $25,000.00 offer was not unreasonably low under the circumstances presented in this matter. The court additionally found that the reserves set by the carrier at $55,000.00 was not inadequate under the circumstances presented. It was additionally held by the court that the carrier’s investigation, which included an IME, was also not inadequate. With regards to any delays in the matter, the court noted that the delays were attributable to the insured and not the carrier.

As such, the carrier's Motion for Partial Summary Judgment on the bad faith claim was granted.

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

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

Wednesday, March 18, 2020

Proper Venue for Cases Involving PennDOT As Party Defendant

In the case of Koshinski v. Johnson, PennDOT, et al., No. 2019-CV-1278 (C.P. Lacka. Co. Feb. 20, 2020 Nealon, J.), the court sustained Preliminary Objections asserting improper venue in a motor vehicle accident case involving PennDOT.

According to the Opinion, the Plaintiff, a Dauphin County resident, who was involved in a motor vehicle accident that occurred in Schuylkill County, filed a personal injury action in Lackawanna County against multiple Defendants, including the Pennsylvania Department of Transportation (PennDOT).

PennDOT filed Preliminary Objections asserting that Lackawanna County was an improper venue under Pennsylvania law.

The court agreed and noted that, based upon 42 Pa. C.S.A. §8523(a) and 37 Pa. Code §111.4(c), the state agency and its employee may only be sued in the county where (1) the cause of action arose, (2) the agency maintains its principal office, or (3) the Commonwealth party’s local office is located for the county in which the cause of action arose.

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon, who wrote the Opinion, noted that these possible areas of proper venue for a Commonwealth defendant took precedence even in those cases where, as here, the Plaintiff has asserted joint and several liability against multiple Defendants.

As such, the court sustained the Preliminary Objections filed by PennDOT asserting improper venue and ordered that the action be transferred to Schuylkill County pursuant to Pa.R.C.P. 1006(e), with the cost associated with the transfer to be borne by the Plaintiff.

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

Standards for Diminished Value of Car Following Accident


In the case of Huchenski v. Alexander, 2019 WL 631050 (C.P. Lacka. Co. Nov. 20, 2019 Nealon, J.), the Defendant filed a Motion for Summary Judgment in negligence action by a Plaintiff seeking to recover damages for property damage to a vehicle from an automobile accident.

The defense argued that the damages for the” diminished value” of the vehicle were “speculative and could not form a basis for recovery.”

The record reflected that the vehicle sustained $5,599.75 in property damage repairs that were paid by Defendant’s insurer.

The Plaintiff secured a post-repair appraisal indicating that although the average retail value of the vehicle was $21,125.00, and that the “current actual cash value” following the completion of the repairs was only $14,750.00.

Judge Nealon noted that, in cases involved claims of diminished value to vehicles or chattel, Pennsylvania has adopted the Restatement (Second) of Torts §928 which allows for the recovery of damages representing “the difference between the value of the chattel before the harm and the value after the harm with due allowance for any difference between the original value and the value after repairs.”

The Court noted that, for almost 100 years, Pennsylvania common law has recognized the diminished value of a vehicle following repairs as an appropriate measure of damages.

Therefore, based upon the evidence contained in the record, the Court ruled that the “diminished value” claim was not premised upon “impermissible speculation.”

As such, the Defendant's Motion for Summary Judgment was denied.

Anyone wishing to review this decision may click this LINK.

Tuesday, March 17, 2020

Ethical Opinion On Including Clients as "CC" On Emails To Opposing Counsel


The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility has recently published Formal Opinion 2020-100 addressing the issues that may arise as a result of sending a client a copy of email communications by the attorney with opposing counsel. It is noted that the use of CC, BCC, and "Reply to All" in emails could give rise to the following ethical issues:

1. Instances where including a client's email address in the CC line may disclose confidential information about the representation in violation of Rule 1.6;

2. Instances where opposing counsel may reply to all in the response to a distribution chain that includes opposing counsel's client and thereby communicate with a party represented by another attorney;

3. Whether the use of a broadcast email will create an unacceptable risk that a client will respond to the entire distribution list and disclose privileged and/or confidential information;

4. Whether sending an email to opposing counsel with a CC or BCC to the attorney's client may create a risk that the client will respond to all and that the opposing attorney will deem such a response as consent for the opposing attorney to communicate directly with the client; and

5. Whether counsel who receives privileged information on an email chain created by the use of CC's or BCCs has a duty to report the disclosure of that privileged information to opposing counsel.


The ultimate conclusion of the Formal Opinion is that "Attorneys risk divulging attorney client confidential information and privileged information when they communicate with opposing counsel and include their clients on the same email. Attorney recipients of such email communications may be deemed to violate the no contact rule if they, in turn, reply to all and otherwise directly contact an adverse client without the other attorney's express consent except in situations where it is objectively reasonable to infer consent from the circumstances."

The Best Practices Tip from this ethical opinion is the recommendation that clients be emailed information in entirely separate emails wherever possible.

Please click HERE to read the entire Formal Opinion 2020-100.

I send thanks to Attorney Charles Wasilefski, the Executive Director of the Pennsylvania Defense Institute for bringing this ethical opinion to my attention.




Monday, March 16, 2020

Motion to Sever and Stay Bad Faith Claim Granted in York County

In the case of Miller v. Conn and Penn Nat'l Ins., No. 2019-SU-000078 (C.P. York Co. Feb. 27, 2020 Vedder, J.), the Court granted the UIM carrier's Motion to Sever and Stay the Plaintiff's Bad Faith claims from the third party and UIM claims pled in the case.  No Opinion was issued with the Order.

Anyone wishing to review this Order may click this LINK.

In the continuing absence of appellate authority on this issue, a split of authority continues across the Commonwealth of Pennsylvania.  Check out the Post-Koken Scorecard on the Tort Talk blog (www.TortTalk.com) for the latest.

I send thanks to Attorney Peter J. Speaker of the Harrisburg, PA office of Thomas, Thomas & Hafer for bringing this case to my attention.

Motion to Sever and Stay Post-Koken Bad Faith Claim Granted in Lancaster County


In the Post-Koken case of Amway v. Agency Ins. Co., No. CI-19-10224 (C.P. Lanc. Co. March 11, 2020 Brown, J.), the Court granted a carrier's Motion to Sever and Stay a Plaintiff's bad faith claim from a companion breach of contract claim.  The decision is by way of an Order with detailed footnotes providing insight into the Court's rationale.

The Court in Amway noted that the Motion to Sever and Stay the bad faith claim was granted, in part, because the Plaintiff did not offer any authority in opposition to the carrier's motion.  In granting the Motion, the Court also noted that the carrier was asserting that its Motion should be granted to, in part, avoid prejudice to the carrier Defendant and to promote the interests of judicial economy.

Anyone wishing to review the Lancaster County Court's decision in the Amway case may click this LINK.

I send thanks to Attorney John W. Croumer of the Lancaster office of the Post & Schell law firm for bringing this decision to my attention.

Motion to Sever and Stay Bad Faith Claim Denied by Federal Western District Court


In the case of Walls v. American Modern Select Ins. Co., No. 3:19-cv-80 (W.D. Pa. Feb. 6, 2020 Gibson, J.), the court refused to strike the carrier’s affirmative defense of fraud and also denied the carrier’s Motion to Sever and Stay the insured’s bad faith claim.

According to the Opinion, this case arose out of a homeowners’ fire loss claim.

After the carrier refused to pay on the basis that the insured made material misrepresentation when they applied for their policies, the insured filed suit. The carrier asserted affirmative defenses in terms of misrepresentations made by the insured during the application process.

Before the court was the insured’s Motion to Strike the affirmative defenses inadequately pled. Also before the court was the carrier’s Motion to Sever and Stay the insured’s bad faith claim.

The court denied the Plaintiff’s Motion to Strike the carrier’s affirmative defenses after finding that, under F.R.C.P. 8(c) affirmative defenses did not have to be thoroughly articulated. However, where, as here, fraud is pled, there are additional pleading requirements under F.R.C.P. 9(b) to plead such claims with particularity. Regardless, the court found that the affirmative defenses pled by the carrier in this matter were sufficiently stated.

As to the other Motion at issue, the court denied the carrier’s Motion to Sever and Stay the bad faith claims. In this regard, the court noted that the underlying issues in the two (2) claims overlapped in terms of the breach of contract and bad faith counts.

The court also felt that trying the claim together would not unduly prejudice the carrier. The court also noted that keeping the cases together would also promote judicial economy.

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

I send thanks to Attorney Lee Applebaum, he writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, and who is with the Philadelphia law firm of Fineman, Krekstein & Harris, for bringing this case to my attention.