Wednesday, December 30, 2020

HAPPY HOLIDAYS FROM CUMMINS MEDIATION SERVICES

WISHING YOU A HAPPY NEW YEAR 

OF MANY AMICABLE RESOLUTIONS


COULDN'T GET THAT MEDIATION SCHEDULED DURING THE END-OF-YEAR RUSH?

PLEASE CONSIDER SCHEDULING IT NOW WITH CUMMINS MEDIATION SERVICES

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Court Addresses Issues With Complaint in an Uninsured Motorist (UM) Claim


In the case of Kleinhans v. John Doe and Chubb Limited Ins. Co., et.al., No. CV-20-0678 (C.P. Lycoming Co. Oct. 2, 2020 Tyra, J.), the court addressed Preliminary Objections filed by an insurance carrier in a hit and run uninsured motorist case. 

According to the Opinion, the Plaintiff’s wife was finishing checking out in a retail store while the Plaintiff-husband went out to get the couple’s vehicle. When the wife came out of the store, she saw her husband laying on the ground surrounded by a puddle of blood. A bystander had already called 911 and the Plaintiff was taken to hospital by ambulance. The identity of the driver who allegedly struck the Plaintiff was never discovered and, according to the Opinion, the Plaintiff did not have any memory of the details of the accident.

The Plaintiff filed an uninsured motorist claim. The carrier filed Preliminary Objections to the Plaintiff’s claim for breach of contract, uninsured motorist benefits, medical payments, bad faith, and under the Unfair Trade Practices and Consumer Protection Law.

In part, the court rejected the UM carrier’s assertion that the Plaintiff’s Complaint failed in that the Plaintiff neglected to attach a copy of the police report to his Complaint. The court noted that, in uninsured motorist cases, Pennsylvania law requires that in order for the claim to proceed, the injured party must report the accident to the police or a proper governmental authority and notify his carrier within thirty (30) days of the accident, or as soon as practicably thereafter. See 75 Pa. C.S.A. §1702.

The court emphasized that the statute only requires that the Plaintiff report the accident to the police or another governmental agency as well as his carrier. There is no requirement in that statute that a police report be attached to the Complaint.

The court otherwise denied the Defendant carrier’s Preliminary Objections to the Plaintiff’s Unfair Trade Practices and Consumer Protection Law claims. After reviewing Pennsylvania law on the requirements of this type of claim, the court found that the Plaintiff only generally pled the claim and provided only legal conclusions as to the Defendant’s conduct and the Plaintiff’s reliance upon this conduct. As such, the court granted these Preliminary Objections but allowed the Plaintiff the right to amend the Complaint.

With respect to the Defendant’s assertion that the Plaintiff failed to attach a copy of the insurance policy to this Complaint which allege, in part, a breach of contract, the court found that the Plaintiff was required to do so. As such, these Preliminary Objections were granted but the Plaintiff was allowed the right to file an Amended Complaint with a copy of the insurance policy attached.

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


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



Tuesday, December 29, 2020

THE 2020 TORT TALK TOP TEN

             




Here is the 2020 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.


10.    Trial Judges Should Stay on the Bench for Voir Dire


The Pennsylvania Supreme Court was positioned to answer the question of whether it was proper for a trial court judge to leave the bench for jury selection in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  

However, in its decision, the Pennsylvania Supreme Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.

While the Court found that the issue had been waived, several of the Justices wrote Concurring Opinions voicing their thoughts that a trial court judge should remain on the bench during the course of voir dire.


9.    Validity of Reservation of Rights Letters



In the case of Selective Way Ins. Co. v. MAK Services, 232 A.3d 672 (Pa. Super. April 24, 2020) (Bowes, J., Shogan, J., Strassburger, J.) (Op. by Bowes, J.)(Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court issued an important decision pertaining to the validity of reservation of rights letters issued by liability insurance carriers.

The court emphasized that, in order for a reservation of rights letter to be valid, it must be issued in a timely fashion and it must clearly state the reasons under the policy for the reservation of rights or for the challenge to coverage.  The court also noted that a best practice may be for the insurance company to send the reservation of rights on multiple occasions as the case evolves.

The court noted that, if a carrier fails to meet these recommendations with respect to a reservation of rights letter, the carrier may be estopped from denying coverage in the end.


8.    Still no Appellate Guidance for Post-Koken Cases


The original Post-Koken decision was handed down back in 2005 allowing automobile insurance companies to replace their arbitration clauses with the requirement that UM and UIM claims instead be pursued in a court of law.  Yet, since that time, essentially the only appellate court decision of note handed down was the Stepanovich v. McGraw decision by the Pennsylvania Superior Court back in 2013 in which that court suggested that it was permissible to conduct a trial of the claims against the tortfeasor and the UIM carrier before the same jury (the Pennsylvania Supreme Court inexplicably denied allocatur in the case).

To date, there remain splits of authority all across the Commonwealth of Pennsylvania on a wide variety of Post-Koken issues in terms of pleadings, discovery, and trial.  These varying county decisions can always be viewed on the Post-Koken Scorecard by scrolling down the right hand side of the Tort Talk blog and clicking on the date under "Post-Koken Scorecard."


7.    Courts Address Standards for Sealing a Settlement Agreement


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. 

This issue was also addressed by Judge Terrence R. Nealon of Lackawanna County in the case of Moses Taylor Foundation v. Coverys, No. 19-CV-7423 (C.P. Lacka. Co. May 8, 2020 Nealon, J.), the court addressed a hospital's request to seal the record in a bad faith litigation. 

In the end, the court found that the secrecy interests cited by the hospital and the trust do not supersede the presumption in favor of open access to the judicial records so as to justify a court-sanctioned closure of the record.


6.    Split of Authority on Allegations of Recklessness


In 2020, the split of authority on the propriety of allegations of recklessness continued.  

Some more liberal trial court judges allowed allegations of recklessness to be pled with reckless abandon in any case whatsoever regardless of the facts presented under a rationale that an allegation of recklessness is an averment of a state of the mind and such averments are allowed to be generally pled under Pa.R.C.P. 1019.

Another line of courts emphasized that Pennsylvania is a fact-pleading stated and limited allegations of recklessness to those cases where outrageous facts were present.

Most Plaintiffs attorneys avoid any delays in the forward movement of their cases that may be caused by Preliminary Objections by agreeing to stipulate the claims of recklessness out where they are challenged so long as the Plaintiff retains the option to motion the claims back in if discovery reveals facts sufficient to support a punitive damages claim.


5.    Pennsylvania Superior Court Adopts Test for Staying a Civil Lawsuit While Criminal Charges are Pending against Defendant



In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 230 A.3d 1128 (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).


4.    Pennsylvania Supreme Court Upholds Artful Pleading to Avoid Liability Exclusion



In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, L), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to avoid exclusions in a liability policy and thereby implicate a carrier’s duty to defend the matter.

This case arose out of the tortfeasor's shooting of the Plaintiff.  The Plaintiff asserted in his Complaint that the shooter had negligently, carelessly and recklessly caused the weapon to be fired.  The Court read the facts to indicate that the shooter had intended to shoot another person and, when the Plaintiff had intervened, the Plaintiff was shot by mistake during the scuffle with the shooter.


3.     Regular Use Exclusion is Under Attack

Over the past two years, the Plaintiff's bar has been successful in attacking the validity of the Household Exclusion in automobile insurance policies.

Energized, the Plaintiff's bar has now set its sights on attacking the Regular Use Exclusion using essentially the same argument that was utilized in the Gallagher v. GEICO case, i.e., that the exclusion acts as an improper de facto waiver of stacked coverage when the MVFRL requires that carriers secure written waivers of stacked coverage from its insureds.

While these attacks initially have not met with success, the Plaintiff's bar scored a chink in the armor with a victory in 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.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Regular Exclusion" to get to the Tort Talk blog posts on those cases.

Also, here is a LINK to my September 10, 2020 Pennsylvania Law Weekly article on the topic entitled "Can the Regular-Use Exclusion Withstand an Attack from the Plaintiffs Bar?"


2.   Lower Courts Continue to Debate Scope of Gallagher v. GEICO Household Exclusion Decision


In 2019, the Pennsylvania Supreme Court attempted to eradicate the Household Exclusion found in automobile insurance policies as an improper de facto waiver of stacked coverage.

In 2020, lower courts struggled with the application of the Gallagher v. GEICO decision to different factual scenarios than that presented in the case decided by the Pennsylvania Supreme Court.

While the Federal District Court judges largely followed the Gallagher v. GEICO decision as eradicating the Household Exclusion, several state court judges upheld the continuing validity of the Household Exclusion based upon the cases before them having different facts than those at issue in the Gallagher v. GEICO decision.

However, just last month, in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), a panel of Pennsylvania Superior Court Judges held that the Gallagher v. GEICO decision was not limited to its facts and should be read as invalidating the Household Exclusion.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Household Exclusion" to get to the Tort Talk blog posts on those cases.


1.    COVID-19 Pandemic Impacts Civil Litigation in Pennsylvania (and across the world)


With the rise of the COVID-19 Pandemic in March of 2020, the courts shut down except for essential matters through September of 2020.  By then, most courts in Pennsylvania began to try to complete jury trials until the second surge compelled most courts to shut down trials again in December of 2020.  It remains to be seen when trials will get back on track in 2021.

The COVID-19 Pandemic also forced attorneys and judges to adapt and to adopt virtual meetings in order to keep cases moving forward.  The use of virtual meetings for depositions and court appointments became the norm, possibly impacting how cases will be handled in the future when the Pandemic goes away.

It is also anticipated that the impact of the Pandemic will be felt in the future in terms of a dip in claims given that there was a stay-at-home Order in effect in Pennsylvania for about two months in the Spring of 2020.





Monday, December 28, 2020

Summary Judgment in Snow Tubing Accident Case Reversed by Pennsylvania Supreme Court


In the case of Bourgeois v. Sno Time Inc., No. 50 M.A.P. 2019 (Pa. Dec. 9, 2020) (Op. by Mundy, J.), the Pennsylvania Supreme Court reversed a Pennsylvania Superior Court's decision affirming the entry of summary judgment in favor of a ski resort in a snow tubing accident case.

According to the Opinion, the Plaintiff sustained a spinal cord injury, resulting in quadriplegia when the snow tube he was riding on collided with a folder deceleration mat that the resort had placed at the bottom of a snow tubing hill to slow down customers in order to prevent them from traveling beyond the run-out-area.

According to the record before the court, the Plaintiff had purchased a snow tubing season pass. On the reverse side of the season pass, there was a release agreement which provided that snow tubing involves “inherent and other risks that could lead to serious injury to death.”

The release on the back of the snow tubing season pass also provided that the customer both assumed all of the risk of snow tubing and released the snow resort from any liability.

After reviewing the record before it, the Pennsylvania Supreme Court concluded that the Pennsylvania Superior Court erred in failing to consider the evidence presented, specifically the expert reports, in a light most favorable to the Plaintiffs. As such, the Pennsylvania Supreme Court reversed and remanded the matter for further proceedings.

The Pennsylvania Supreme Court rejected the defense argument that the trial court had considered the expert reports in the trial court’s granting of summary judgment. The Pennsylvania Supreme Court disagreed with that argument and instead noted that, although the trial court accurately recited the summary judgment standard and, even though the trial court addressed the theories of recklessness and gross negligence, the Pennsylvania Supreme Court felt that the trial court did not do so in a light most favorable to the Plaintiffs. 

The Pennsylvania Supreme Court felt that the expert reports presented in the case created genuine issues of material fact for a jury to resolve and that the trial court erred in not considering them. As such, the Pennsylvania Supreme Court ruled that the Pennsylvania Superior Court had erred in not reserving the trial court on this basis.

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

Wednesday, December 23, 2020

Pennsylvania Supreme Court Offers Guidance on the Application of the Sudden Emergency Doctrine in Pedestrian Cases


In the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court addressed the standards for when the sudden emergency defense should be applied in a motor vehicle accident case.

In his Majority Opinion, Justice Wecht noted that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.” See Op. at p. 1.

In the Majority Opinion, it was reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. See Op. at p. 5. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care, the doctrine should not be applied and instructed to the jury. See Op. at p. 6.

Justice Wecht confirmed that when the evidence in a case suggests that a “sudden emergency” may be evidenced in the record at trial, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.” Id.

In this regard, Justice Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” Id. On page 6 of his Opinion, Justice Wecht reiterated that the application of the sudden emergency doctrine is “[c]ounterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections. Id.

In this pedestrian versus motor vehicle accident case of Graham v Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view, and a lack of evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact were found to fail to lay a foundation for the provision of that instruction to the jury. Id.

Further on in his Opinion, Justice Wecht noted that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and [the Majority] finds it ill-advised to use the word ‘defense’ in sudden emergency [jury] instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.” See Op. at 19.

Anyone wishing to review the Majority Opinion by Justice Wecht may click this LINK.

Justice Dougherty’s Dissenting Opinion may be viewed HERE.

Commentatary:

Commentators are already pointing to the fact that, in his Dissenting Opinion, Justice Kevin Dougherty read this language as indicating that the Majority went “beyond the question [presented] to decide sua sponte the sudden emergency doctrine is no longer a viable defense in the Commonwealth.”

However, a fair reading of the Majority Opinion reveals that the Majority did not so rule; rather, in the Majority Opinion, it was held that the facts of this particular case did not support the application of the doctrine or the judge's provision of instructions to the jury on the sudden emergency doctrine. The law of the doctrine was otherwise reaffirmed in the Majority's Opinion with the indication that the application of the doctrine should be more closely scrutinized in the context of pedestrians darting out in front of vehicles at intersections given the heightened standard of car imposed on motorists in that scenario.


I send thanks for a number of attorneys for bringing this case to my attention, including Paul Oven, Esq., Scott Cooper, Esq., Kenneth Newman, Esq., and Dale Larrimore, Esq.




Court Addresses Current Status of Law of Negligent Infliction of Emotional Distress


In the case of Watkins v. UPMC Jameson, No. 30002 of 2020 C.A. (C.P. Lawr. Co. Oct. 8, 2020 Cox, J.), the court held that, where the Plaintiff alleged that the medical Defendant did not provide her with proper treatment when she appeared at the hospital at 26 weeks gestation and that proper treatment could have prevented the child’s death, the Plaintiff was found to have sufficiently alleged a duty of care owed to her and a breach of that duty, and had also asserted a viable claim for negligent infliction of emotional distress.

Part of the court’s decision centered around the claim for negligent infliction of emotional distress.

The court in this Watkins case noted that the Pennsylvania Superior Court in the case of Turner v. Medical Center, Beaver Pa., 686 A.2d 830 (Pa. 1996), had acknowledged that the Pennsylvania Supreme Court had abandoned the zone of danger concept and had instead adopted a doctrine based upon the foreseeability of the injury in negligent infliction of emotional distress claims.

Here, the Plaintiff had alleged the existence of a contract or a fiduciary relationship as she had received medical care from the Defendants.

The court noted that the Plaintiff had alleged that proper treatment could have prevented her child’s death. The court found that it was clearly foreseeable that the Plaintiff will be traumatized by giving birth of a child at just 26 weeks into her pregnancy and observing that child in distress prior to the child’s death.

Accordingly, the court found that the Plaintiff had properly alleged a duty of care owed to her by the Defendant and an alleged breach of that duty.

However, with respect to the claim of negligent infliction of emotional distress at issue, the court found that the allegations in the Plaintiff’s Complaint regarding the physical impact or injury element were not specific enough. As such, the court granted the Plaintiff leave to amend the Complaint.

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

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

Tuesday, December 22, 2020

HAPPY HOLIDAYS

 


WISHING YOU HAPPY HOLIDAYS



Celebrating Ugly Christmas Sweater Day
at
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Monday, December 21, 2020

Judge Nealon Reviews Standards for Motion for Reconsideration


In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Dec. 4, 2020 Nealon, J.), the court denied a Plaintiff’s Motion for Reconsideration of a Partial Summary Judgment entered in favor of the Defendant insurance company on the bad faith claim. 

The Tort Talk blog post on Judge Nealon's original decision in this case can be viewed HERE.   

This latest decision is notable for Judge Nealon’s recitation of the standard of review for a Motion for Reconsideration.

Judge Terrence R. Nealon
Lackawanna County


The court noted that a Motion for Reconsideration is subject to the sound discretion of the trial court judge. Under 42 Pa. C.S.A. §5505, a trial court may reconsider one of its earlier Orders only if the Motion for Reconsideration is filed within thirty (30) days of the entry of the disputed Order.

Judge Nealon also noted that, to be granted, a Motion for Reconsideration generally requires an intervening change in the law, newly discovered evidence, or a clear error of law.

The court found no support for the Plaintiff’s Motion for Reconsideration in this case.


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




Federal Court Reviews Statute of Limitations for Insurance Bad Faith Claims


In the case of McAteer v. State Farm Ins. Co., No. CV-20-101 (E.D. Pa. Nov. 23, 2020 Goldberg, J.), the court granted a Motion to Dismiss a UIM bad faith claim but allowed the Plaintiff the right to file an Amended Complaint.  In so ruling, the court addressed statute of limitations issues.

The two year statute of limitations for 42 Pa.C.S.A. Section 8371 bad faith claims was reaffirmed by the court.

The court generally noted that the claim arises when the Plaintiff is harmed and not when the precise amount or extent of damages is determined. The court also noted that a bad faith claim can accrue when a carrier definitively denies coverage.

The court also confirmed that a Plaintiff cannot avoid the statute of limitations period by asserting that a continuing refusal to cover a claim was a another, separate act of bad faith. The court additionally noted that repeated or continuing denials of coverage do not constitute separate acts of bad faith that give rise to a new statutory period.

Applying this law to the case presented, the court found that the Plaintiff’s claim for statutory bad faith  under 42 Pa.C.S.A. Section 8371was barred by the statute of limitations.

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


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


Thursday, December 17, 2020

ARTICLE: The Wheels Stopped Turning: An Unsettled Year All Around in MVA Law


This Year-End review article of mine on Motor Vehicle Accident Law in Pennsyvania was published by the Pennsylvania Law Weekly on December 17, 2020 and is republished here with permission.


The Wheels Stopped Turning: An Unsettled Year All Around in MVA Law

By Daniel E. Cummins | December 17, 2020


Daniel E. Cummins of Cummins Law.

While the wheels of motor vehicles stopped in large part for a time in 2020 as Americans cooped up at home and waited (and still wait) for the pandemic to subside, the wheels of justice kept turning in the form of notable decisions and developments in Pennsylvania motor vehicle accident law over the past year.

People Stopped Driving

Obviously, the rise of the COVID-19 pandemic was the news story of the year. In March and April of this year, the roads were mostly empty as people huddled up at home under unprecedented stay-at-home orders from the government.

Based on this drastic decrease in driving activity and the consequent dip in motor vehicle accidents, it is expected that there may be a reduction in auto accident claims in the future. However, the prospect of a downturn in auto accident claims and suits may be tempered by the fact that more limited tort claims may be pursued as a result as practitioners try to keep their numbers up. Whether the courts apply the serious injury threshold of the limited tort option to these cases will remain to be seen.

Law of Household Exclusion Unsettled

Back in 2019, the Pennsylvania Supreme Court handed down its decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which represented a seismic shift in auto accident law as that court attempted to eradicate the household exclusion for the benefit of plaintiffs. In 2020, disagreement flowed out of the lower courts as to the application of that decision outside of the facts of the Gallagher case. Some courts followed the Gallagher v. Geico decision as eradicating the household exclusion and others did not, instead choosing to rule that that decision should be limited to its facts.

In the Pennsylvania federal courts, several judges followed the Gallagher v. Geico decision in opinions they handed down in 2020. In the Eastern District Court case of LM General Insurance v. LeBrum, No. 19-2144-KSM (E.D. Pa. July 1, 2020 Marston, J.) (Mem. Op.), the court followed the decision issued in Gallagher v. Geico in denying a motion to dismiss a declaratory judgment issue pertaining to whether the injured the plaintiff’s claims for UIM benefits were barred by a household exclusion.

The court in LeBrum reviewed a number of trial court decisions indicating that the Gallagher v. Geico decision by the Pennsylvania Superior Court should be viewed broadly as well as those other decisions that have indicated that the decision should be interpreted narrowly. The court in this case indicated that, at the motion to dismiss stage, it was not inclined to interpret Gallagher’s holding narrowly.

In addition to following Gallagher’s eradication of the household exclusion, the court in LeBrum also held that the Gallagher decision could be applied retroactively. With regards to a statute of limitations defense asserted by the carrier on the Gallagher v. Geico issue, the court agreed that a four-year statute of limitations would apply on any retroactive claims.

In another household exclusion case from this year, National General Insurance v. Sheldon, No. 1:19-CV-212 (W.D. Pa. Sept. 29, 2020 Bissoon, J.), the carrier argued that the Pennsylvania Supreme Court’s decision in the case of Gallagher v. Geico was distinguishable from the issues presented in this case in that Gallagher involved the same insurance company on both insurance policies at issue and this case did not.

After reviewing the cases which have been decided since Gallagher, the judge in this Sheldon case out of the Western District Court of Pennsylvania found that this distinction was of no consequence. The court held ultimately that the household exclusion was not valid in this case under essentially the same analysis as in the Gallagher decision, i.e., that the household exclusion is invalid as a de facto waiver of stacked coverage where Pennsylvania’s MVFRL requires that an insured provide a written waiver of such coverage.

The district court’s decision in the Sheldon case contradicted a household exclusion decision that had been handed down by the same court earlier in the year. In the case of Dunleavy v. Mid-Century Insurance, No. 2:19-CV-1304 (W.D. Pa. May 19, 2020 Ranjan, J.), Judge J. Nicholas Ranjan of the Pennsylvania Western Federal District Court held that the Pennsylvania Supreme Court’s decision in Gallagher v. Geico did not apply to invalidate a household exclusion in this case where the insured had expressly waived UIM coverage on a motorcycle insured with another carrier.

The above review confirms that there is a split of authority in the federal courts on the ongoing validity of the household exclusion. Meanwhile, in the state court system, several trial court judges limited Gallagher v. Geico to its facts and decided to uphold the household exclusion as a valid exclusion to support a denial of UIM coverage.

For example, in the Lehigh County case of Erie Insurance Exchange v. Mione, No. 2019-CV-2395 (C.P. Lehigh Co. June 26, 2020 Varricchio, J.), Judge Michele A. Varrichio of the Lehigh County Court of Common Pleas granted summary judgment in favor of the carrier and denied the injured party’s motion for judgment on the pleadings in a declaratory judgment action regarding the household exclusion. The court ruled that Erie Insurance did not need to provide underinsured motorist coverage to the plaintiff given the application of the exclusion.

The court in the Mione case analogized the facts before it to be more consistent with the facts in issue in the Pennsylvania Supreme Court decision in Eichelman v. Nationwide Insurance, 711 A.2d 1006 (Pa. 1999). Following Eichelman the court in this matter ruled that, in the absence of a clearly expressed public policy, the clear and unambiguous language of the still valid household exclusion in the auto insurance policy must be given its plain meaning and application.

The court in Mione also emphasized that, giving effect to the household exclusion would further legislative policy behind Pennsylvania’s Motor Vehicle Financial Responsibility Law [MVFRL] by holding the plaintiff to his voluntary choice of not purchasing UIM coverage under a separate motorcycle policy for the motorcycle involved in the accident.

The ongoing application of the household exclusion to preclude coverage was also found to be valid by Judge David J. Williamson in the Monroe County case of Erie Insurance Exchange v. King, No. 6937-CV-2019 (C.P. Monroe Co. Jan. 27, 2020 Williamson, J.). In the King case, the court applied a household exclusion despite the Gallagher case and ruled that the insurance company did not have to provide uninsured motorist benefits as a result.

In his opinion, Judge Williamson noted that, when one of the plaintiffs had purchased the policy with Erie Insurance, he had executed a waiver of stacked benefits and received a reduction in the premiums as a result. As such, the record confirmed to the court that the plaintiff had expressly waived the ability to stack his coverage over two or more separate policies.

Yet, there have been county court decisions in 2020 in which the court instead applied the Gallagher v. Geico decision and ruled that the household exclusion was invalid.

In the Lancaster County Court of Common Pleas case of Donegal Mutual Insurance 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.

Lancaster County Court Judge David L. Ashworth applied the Gallagher v. Geico decision literally and noted that the Pennsylvania Supreme Court “unequivocally” held that household exclusions are unenforceable as a matter of law as the exclusion violated the requirements set forth in Pennsylvania’s MVFRL that a carrier secure a written waiver or rejection of stacked UIM coverage for such waiver or rejection to be valid.

In the separate case of Donegal Insurance v. Ricci-Lombardo, No. C-48-CV-2019-11724 (C.P. Northamt. Co. Oct. 22, 2020 Morganelli, J.), Judge John M. Morganelli of the Northampton County Common Pleas Court also ruled in favor of the insured in response to cross-motions for judgment on the pleadings in a declaratory judgment action brought by the carrier relative to the application of the household exclusion. The court followed the Gallagher decision and ruled that household exclusion could not be utilized by the carrier to act as a de facto waiver of stacked coverage.

It is anticipated that the lower courts will continue to see this issue again and again in the years ahead.

Regular Use Exclusion Is Under Attack

With their successes in their attack against the household exclusion through the Gallagher v. Geico decision, plaintiffs attorneys have been energized and have turned their sharp focus toward utilizing the rationale of the Gallagher decision to attack the regular use exclusion, i.e., that the regular use exclusion should be ruled invalid as a de facto waiver of stacked coverage when the MVFRL requires carriers to secure a written waiver of such coverage.

One such attack on this exclusion was rebuffed earlier this year 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.), in which that court upheld the carrier’s reliance upon the regular use exclusion.

In Nationwide v. Fong, Eastern Federal District Court Judge Chad F. Kenney held 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 for any UIM coverage under the case presented.

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. The court noted that the regular use exclusion had been previously upheld as valid by the Pennsylvania Supreme Court in its holding in the case of Williams v. Geico, 32 A.3d 1195, 1209 (Pa. 2011), in which it was held, in part, that the regular use exclusion was not void as against public policy.

Judge Kenney also made a point in Nationwide v. Fong 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 [injured party].”

In essence, in his decision in Nationwide v. Fong, Kenney followed decades of precedent under which the regular use exclusion had been repeatedly upheld as valid.

Then came chink in the armor of the regular use exclusion. In June of this year, Judge Stephen G. Baratta of 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.). granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that the carrier’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 securing a recovery from the tortfeasor, 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.

In Rush, Judge Baratta emphasized that the plaintiff had not executed any written UIM coverage or stacking waivers. The court went on to accept the plaintiffs’ de facto waiver of coverage argument, that is, the same argument raised in the Gallagher v. Geico context, and held the the regular use exclusion was similarly invalid.

The court in Rush also found that the regular use exclusion violated 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 for review by the Pennsylvania Superior Court. Whether that decision is a blip on the radar or the beginning of a split of authority on the regular use exclusion remains to be seen.

Another Notable Split of Authority

Another notable split of authority that dominated the court decisions in 2020 in Pennsylvania revolved around the extent to which recklessness could be pleaded in state court personal injury complaints.

In some more liberal decisions, such as those arising this year out of Philadelphia, Franklin, Northampton and Lackawanna counties, the trial court judges have relied upon dicta from the summary judgment decision in the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2008), to rule, at the preliminary objections stage, that claims of recklessness, or reckless conduct, can be pleaded with reckless abandon in any personal injury case whatsoever regardless of the underlying facts at issue. Those trial court judges believe that a claim of recklessness is an allegation that pertains to the state of the mind of the tortfeasor and that such claims are permitted to be pled generally under Pa.R.C.P. 1019.

Over the past year, other trial court judges, such as those in Monroe and Susquehanna counties, have instead adhered to the long-established principle that Pennsylvania is a fact-pleading state and have required that plaintiffs to instead allege sufficient facts in support of claims of reckless conduct, i.e., those same types of outrageous facts necessary to support a claim for punitive damages.

In his decision in the case of Seber v. Kline, No. CI-20-03109 (C.P. Lanc. Co. July 1, 2020 Brown, J.) Judge Leonard G. Brown III of the Lancaster County Court of Common Pleas took a middle ground on the issue in a rear end accident case.

In Seber, Brown referred to the Archibald v. Kemble decision for the proposition that, under Pennsylvania tort law, recklessness is subsumed by and sounds in negligence. Brown noted that the Superior Court in Archibald stated that, “even though we hold [the plaintiff] must prove [the defendant] acted recklessly, the cause of action remains, sounding in negligence.”

Brown also separately acknowledged in his decision in the Seber case that recklessness may be pled generally under Pa. R.C.P. 1019(b) as a condition of the mind in some cases. However, Brown went on to note that there are “Two distinct types of recklessness. The first allows for punitive damages, and the second does not.”

The court noted that the first type of recklessness, which may support claims of punitive damages, involve cases where the actor knows, or has reason to know of facts which create a high degree of risk of harm to another, and the actor still deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference in that that risk.

Brown noted that the second type of recklessness is “where the actor has such knowledge or reason to know the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.”

Brown ruled that in this matter that the facts alleged by the plaintiff in a matter involving a standard rear-end accident were “legally insufficient to support a demand for punitive damages” and that simply pleading words such as ‘reckless,’ ‘wanton,’ or ‘willful’ did not change the result. More specifically, Brown ruled that “even when read in the light most favorable to the plaintiffs, no facts averred in the complaint point to this being a case of more than mere negligence.”

Rather, the court found that the facts pled in this simple rear-end accident case are the same types of facts used to support a showing of mere negligence only. As such, the court granted the defendant’s preliminary objections to the claims of recklessness, gross negligence, and for punitive damages and struck them from the complaint without leave to amend.

It should be interesting to see how this pleadings issue continues to play out in the year ahead.

Uber Deemed to Be an Employer of Its Drivers

In the case of first impression of Lowman v. Unemployment Compensation Board of Review, 235 A.3d 278 (Pa. July 24, 2020), 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 Donald Lowman was not engaged in an independently established business.

As such, the Pennsylvania Supreme Court essentially 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.

Still Waiting for Post-’Koken’ Appellate Guidance

It has been 15 years since the Insurance Federation of Pennsylvania v. Koken, 889 A.2d 550 (Pa. 2005), decision was handed down and, to date, the only appellate decision handed down has been the Pennsylvania Superior Court’s decision seven years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied 78 A.3d 1147 (Pa. 2014). In that case, the Superior Court suggested that, in some circumstances, it would not be improper to have a post-Koken trial involving both the third party defendant and a UIM carrier defendant in front of the same jury. Regrettably and inexplicably, the Pennsylvania Supreme Court denied allocatur in that case and missed an opportunity to present much needed appellate guidance in this area of law.

Meanwhile, there remains an equal split of authority amongst county trial courts on the issue of whether post-Koken cases involving combined cases against third party defendants and UIM carrier defendants should remain consolidated or severed. According to the ‘Post-Koken Scorecard’ found on the Tort Talk Blog (www.TortTalk.com), at least 24 county courts have ruled in favor of the continued consolidation of these types of cases through discovery and at least 24 county courts have ruled in favor of the severance of such claims.

The Post-Koken Scorecard also confirms that, in those combined post-Koken cases that also include bad faith claims against the UIM carrier, at least 10 county courts have ruled in favor of the continued consolidation of these cases up to the time of trial, and at least 22 county courts have ruled in favor of severing out the bad faith claims. Of those courts that have followed the majority rule in favor of severing out the bad faith claims there remains a split of authority as to whether bad faith discovery should still be allowed to proceed while the underlying UIM claim is pending.

There is also a split of authority across Pennsylvania on the issue of whether a post-Koken trial involving both a third party tortfeasor defendant and a UIM carrier should be allowed to proceed in a consolidated fashion or instead be bifurcated. Moreover, the trial court judges continue to craft their own jury instructions for these types of cases.

The hope remains that some of these post-Koken cases that proceed to verdict will thereafter head up the appellate ladder and generate some much needed appellate guidance in 2021.

Here’s to also hoping that appellate guidance is forthcoming in the year ahead on all of the other issues reviewed above as well.

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.

Discovery of Different Versions of Electronic Medical Records Allowed Where Plaintiff Alleges Doctor Altered the Records


In the case of DelGuercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Nov. 16, 2020 Nealon, J.), the court addressed a motion filed by the Plaintiff in a medical malpractice case seeking to compel the production of the “templates and macros” used by the Defendant doctor in creating the electronic medical record (“EMR”) at issue in this case.

According to the Opinion, this case arose out of allegations of an incorrect diagnosis following emergency room treatment that allegedly resulted in the Plaintiff being released and subsequently developing a stroke.

The Plaintiff alleged that, after the Defendant doctor had treated the Plaintiff in the emergency room and later learned what happened to the Plaintiff, the doctor allegedly made several additions and edits to the patient’s electronic medical record regarding his care of the Plaintiff during the relevant time.

The Plaintiff alleged that discovery revealed four (4) different versions of the doctor’s emergency room note that were captured by the electronic medical record system of the hospital.

During his discovery deposition, the Defendant doctor testified that he created his own “macros” that he would use when making entries into a patient’s EMR. The doctor described his macro as a template within a template. The doctor noted that he had chosen a couple of phrases within a drop-down menu and had saved them as a macro which he would then tailor to the specifics of each patient thereafter. The Plaintiff asserted that the Defendant doctor used these macros as an excuse at his deposition to explain several of his additions and deletions from the Plaintiff’s medical records.

Judge Terrence R. Nealon
Lackawanna County



In his decision, Judge Nealon noted that the Pennsylvania Rules of Civil Procedure pertaining to discovery are designed to advance the truth-seeking process of a jury trial and to prevent any unfair surprise at trial.

The court reiterated the rule under Pa. R.C.P. 4003.1 that discovery is to be liberally allowed with respect to any matter that is relevant and not privileged. The court emphasized that the relevancy standard applicable to discovery is necessarily broader than the standards used at trial for the admission of evidence.

After also reviewing the more specific pertinent rule of Pa. R.C.P. 4009.1 regarding the discovery of electronically stored information (“ESI”), the court noted that the discovery at issue in this matter would be discoverable as relevant to the questions presented. The court granted the Plaintiff’s Motion to Compel in part and denied it in part based upon different aspects of the discovery at issue.

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




A Primer on Negligent Entrustment Claims


In the case of L-Sharif v. Gagliordi, No. 10242 of 2020, C.A. (C.P. Lawr. Co. Oct. 13, 2020 Motto, J.), the court found that the Plaintiff’s negligent entrustment claim was legally insufficient where the Complaint lacked any averment to demonstrate that the Defendant driver was a habitually unsafe driver or that his employer, who was the owner of the vehicle the driver was operating at the time of the accident, knew or had reason to know that the Defendant driver was an unsafe driver when the owner entrusted the driver with the vehicle. The court granted the Plaintiff’s Preliminary Objections in part.

According to the Complaint, this matter arose out of a motor vehicle accident during which the driver was operating a pick-up truck owned by his construction company employer.

Reviewing the Plaintiff’s Complaint, the court found that the Complaint did not have any factual allegations to demonstrate that the driver was a habitually unsafe driver or any facts that the owner knew or had reasons to know that the driver was an unsafe driver. The otherwise bare allegations of negligent entrustment asserted by the Plaintiff were found to be insufficient.

As such, the Defendant owner’s Preliminary Objections were granted with respect to this claim.

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


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



Wednesday, December 16, 2020

Dispute Under Homeowner's Policy Allowed to Proceed to Jury

 

In the case of Bloxham v. Allstate Ins. Co., No. 3:19-CV-00481 (M.D. Pa. Nov. 16, 2020, Mehalchick, M.J.), Federal Magistrate District Court Judgment, Karoline Mehalchick, denied the carrier’s Motion for Summary Judgment in a breach of contract action arising out of a dispute under a homeowner’s insurance policy. 

According to the Opinion, after the Plaintiff sustained an accidental fire loss to his home and personal property, the carrier denied payment under the insurance policy on the grounds that the Plaintiff did not reside at the subject property and that the Plaintiff and/or the Plaintiff’s representatives allegedly provided material misrepresentations to the Defendant-carrier about residency. 

In opposition, the Plaintiff asserted that he did reside at the subject property and that no material misrepresentations were made as to the residency, ownership, or as to the condition of the property. 

Mag. Judge Karoline Mehalchick
M.D. Pa.


Federal Magistrate Judge Mehalchick provided a thorough analysis of Pennsylvania case law on the definition of “residence” and concluded that the evidence presented in this case was sufficient to allow a reasonable jury to conclude that the Plaintiff did reside at the property at the time of the fire. As such, the carrier’s motion for summary judgment was denied in this regard. 

The court also reviewed the elements of a claim of misrepresentation relative to an insurance policy. After reviewing the same, the court found that the carrier failed to establish that the parties at issue had  knowingly made any false statements with regards to residency. It was also noted that the carrier failed to show that any such statements were made with a deliberate intent to deceive the carrier.

Also, given that the question as to whether the insured resided at the property was left for the jury’s determination, the court found that the carrier could not establish, at this stage of the litigation, whether any alleged misrepresentation about the insured’s residency was false. 

As such, summary judgment was also denied on the issue of allegations of material misrepresentations with regards to the policy. 

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

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

Magistrate Judge Mehalchick of Federal Middle District Court Tackles Stacking Issues and Validity of Household Exclusion


Thinking through stacking issues can sometimes make your head hurt.

In the case of Blizman v. Travelers, No. 3:19-CV-01539 (M.D. Pa. Dec. 1, 2020 Mehalchick, M.J.), the court denied a Motion to Dismiss filed by the carrier in an insurance coverage case in which stacking issues and the household exclusion was implicated.

In this matter, the carrier sought to have the Plaintiff’s claims dismissed based upon the household exclusion and because the Plaintiffs had allegedly waived the coverage at issue.

In her Opinion, Federal District Magistrate Judge ruled that the Pennsylvania Supreme Court’s 2019 decision in the case of Gallagher v. Geico, in which the Pennsylvania Supreme Court eradicated the household exclusion, was a decision to be broadly interpreted and not considered to be limited to the facts before that Court.

Judge Karoline Mehalchick


Federal Magistrate Judge Mehalchick also ruled in this Blizman case that the series of Sackett decisions required an automobile insurance company to obtain written waiver of stacking forms from its insureds under circumstances where new vehicles are added to the policy.

The court also noted that the recent Erie Insurance v. Petrie decision was important because, under its holding, waivers of stacking only applied to intra-policy issues and stacking issues and not to inter-policy stacking issues.  (The Tort Talk blog post on that Petrie decision can be viewed HERE.

The court noted that it was unknown if there was any after acquired vehicle language at issue in this case because such language in any policy had not been provided in the record by the carrier.  Judge Mehalchick found that, even if there was after acquired vehicle language at issue in this case, Travelers still did not get the proper waivers as required by the law.

In footnote 19, Judge Mehalchick noted that issues similar to those presented in this caes are also currently pending before the Pennsylvania Supreme Court in the Donavan v. State Farm case. 

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


I send thanks to Attorney David J. Selingo of the Kingston, Pennsylvania law firm of Selingo Guagliardo for bringing this case to my attention.

Tuesday, December 15, 2020

ARTICLE: Shutdown Makes for a Quiet year in Civil Litigation

Here is a copy of my December 10, 2020 Year-End review article published in The Pennsylvania Law Weekly on civil litigation developments in Pennsylvania over the past year.  It is republished here with permission.

My Year-End article on developments in Motor Vehicle Accident Law is forthcoming.


Shutdown Makes for a Quiet Year in Civil Litigation


By Daniel E. Cummins | December 10, 2020

  Daniel E. Cummins of Cummins Law.


While 2020 was a year in a pandemic and political upheaval, things were relatively calm in terms of any notable civil litigation decisions. The biggest news of the year was that courts were not conducting trials which gave judges more time to issue notable decisions, some of which are outlined below.
COVID-19 Stops Civil Litigation Trials

In 2020, the rise of COVID-19 pandemic shut down the court system in March. Generally speaking, the courts were almost entirely shut down for two months before gradually opening over the summer with virtual online proceedings. Then by September, the courts began to hold trials again in courtrooms outfitted with plexiglass and jurors spread out between the jury box and the gallery in an effort to maintain social distancing. It remains to be seen how the COVID-19 pandemic will influence jury awards.

Stay of Civil Litigation Matters Pending Result of Criminal Case

In a case of first impression handed down in March in the matter of Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020), the Pennsylvania Superior Court confirmed the standards that a trial court judge must consider with respect to a request by a defendant 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 previously established by the federal courts in the case of In re Adelphia Communications, No. 02-1781, (E.D. Pa. 2003), for determining whether to stay a civil case pending resolution of a related criminal matter.

Going forward, under Keesee, 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 included the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests.

What Happens in Pennsylvania, Stays in Pennsylvania

One of the most active areas of Pennsylvania law over the past year was on the issue of personal jurisdiction in Pennsylvania over foreign defendants.

Just recently, the judicially activist Pennsylvania Supreme Court advanced its agenda of helping plaintiff’s causes by expanding the ambit of jurisdiction over foreign defendants and opening the door even wider to hauling more potentially liable parties into Pennsylvania personal injury matters. In the case of Hammons v. Ethicon, 7 EAP 2019 (Pa. Oct. 21, 2020) (Op. by Baer, J.), the Pennsylvania Supreme Court reviewed jurisdictional issues in a pelvic mesh products liability case. In the end, the court affirmed the entry of a judgment in favor of the plaintiffs over foreign defendants who had raised issues of jurisdictional.

The Hammons case presented a law school essay type of jurisdictional challenge in a matter involving a lawsuit filed in Pennsylvania by an Indiana resident who had a surgical procedure performed in Indiana and who alleged injuries from an implanted pelvic mesh that was manufactured by New Jersey corporate defendants.

The Pennsylvania Supreme Court provided a detailed summary of the current status of the law pertaining to personal jurisdiction that was noted to be in a state of flux. The court reviewed several notable U.S. Supreme Court opinions, the most recent of which was in the case of Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2107). According to legal commentators, the Bristol-Myers decision by the Supreme Court was deemed to be a defense-friendly decision.

Concisely, after the Bristol-Myers case, the following three elements must be met in order for specific personal jurisdiction to lie over a defendant. First, a defendant must have purposefully conducted activities within the forum state, or must have purposefully directed its conduct towards the forum state. Second, the plaintiff’s claim must have arisen out of or relate to the defendant’s activities in the forum state or directed toward the forum state. Third, a finding of jurisdiction over the defendant must be found by the court to be fair and reasonable.

In Hammons, the Pennsylvania Supreme Court diverged from the law set down by the U.S. Supreme Court in Bristol-Meyers by rejecting the defense’s arguments that, under Bristol-Myers, the jurisdictional analysis should focus on the jurisdiction’s connection to each of the plaintiff’s individual claims. Instead, the 6-1 Majority in Hammons, with Chief Justice Thomas G. Saylor dissenting, ruled that the focus should remain on the defendant’s conduct.

In the end, the court found that the defendant’s suit-related contacts justified jurisdiction in that the particular defendant supervised the design and manufacturing process of its product in Pennsylvania in collaboration with a Pennsylvania company. The court additionally noted that this particular defendant also worked with a Pennsylvania physician in developing and marketing the product. In favoring the plaintiffs’ position, the Pennsylvania Supreme Court rejected a more narrow jurisdiction analysis set down by none other than the U.S. Supreme Court as such a contrary view “could unnecessarily restrict access to justice for plaintiffs.”

Split of Authority on Another Jurisdiction Issue

In terms of jurisdictional issues in the federal courts of Pennsylvania, it appears that a split of authority has arisen between the federal district courts of Pennsylvania as to whether or not Pennsylvania’s long arm statute imposing general jurisdiction upon any foreign corporation registering to do business in Pennsylvania is constitutional.

On the one side, we have the case of Kraus v. Alcatel-Lucent, 441 F.Supp.3d 68 (E.D. Pa. Feb. 27, 2020 Savage, J.), in which the court ruled that Pennsylvania’s long-arm statute, which allows for general jurisdiction on any foreign corporation registering to do business in Pennsylvania, is constitutional.

The case of Weigold v. Ford Motor, 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.

In contrast, in the case of Reynolds v. Turning Point Holding, No. 2:19-CV-01935-JDW (E.D. Pa. Feb. 26, 2020 Wolson, J.), the court granted a motion to dismiss for lack of personal jurisdiction after finding, in part, that Pennsylvania’s statutory scheme requiring foreign corporations to consent to general personal jurisdiction in Pennsylvania by virtue of registering to do business in Pennsylvania violates the due process clause of the U.S, Constitution.

According to this opinion, the defendant franchiser involved in this matter did not have any significant contacts with Pennsylvania and the store where the plaintiff was alleged injured was a separately maintained corporation. The court in Reynolds specifically ruled that the defendant’s registration as a foreign corporation to do business in Pennsylvania was insufficient to subject it to general personal jurisdiction.

Over the past year, this important issue was also watched the state court arena. The case of Murray v. American LaFrance, 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (en banc) (Op. by Bowes, J.), was viewed as the case in which would determine the validity of the argument that Pennsylvania’s business registration law was, in and of itself, sufficient to establish jurisdiction over an out-of-state company where that company has registered with the state to do business in Pennsylvania.

However, the en banc panel of the Superior Court ruled that the plaintiff had failed to properly preserve this issue of jurisdiction before the trial court and, as such, the court found that the issue was not preserved. As a result, litigants will have to await another day for this important and unsettled issue to be decided in Pennsylvania.

Products Liability

In 2020, the Pennsylvania Supreme Court was poised to decide whether Amazon.com could be sued in a products liability action in Pennsylvania as a “seller” of a defective product.

The Pennsylvania Supreme Court agreed to accept that issue for review as certified to its attention by the U.S. Court of Appeals for the Third Circuit in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020).

In the case of Oberdorf v. Amazon.com, No. 18-1041 (3d Cir. July 3, 2019), the Third Circuit had reversed the lower court and held that Amazon.com may be sued as a “seller” in products liability cases.

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

It was more recently reported that this case was settled before the Pennsylvania Supreme Court could issue a decision on the question. As such, practitioners will have to wait for another day to hear from the Pennsylvania Supreme Court on whether Amazon can be sued in products liability claims here in Pennsylvania.

Medical Malpractice

The validity of the doctrine of res ipsa loquitur in medical malpractice matters was reaffirmed in a couple of cases over the past year. In the case Lageman v. Zepp, 237 A.3d 1098 (Pa. Super. 2020), the Pennsylvania Superior Court found that a trial court had 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 the res ipsa loquitur doctrine 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 application of the doctrine is not foreclosed where the plaintiff also presents a medical expert offering evidence of other specific negligent conduct.

In another res ipsa loquitur case, Snyder v. Scranton Hospital, No. 19-CV-83 (C.P. Lacka. Co. Aug. 28, 2020 Nealon, J.), the court denied the defendants’ motions for partial summary judgment in which it was 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 the plaintiff’s 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.

Looking Ahead

In the year ahead, the courts will continue to navigate the coronavirus pandemic in terms of holding trials. However, it is expected that the trial courts and the appellate courts will continue to churn out notable decisions on a wide variety of civil litigation issues, including with respect to jurisdiction, proper venue, and in a wide variety of premises liability, products liability and medical malpractice matters.

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.