Friday, February 28, 2020

Court Rules That Plaintiff Need Not Plead Clear and Convincing Evidence In Order to Proceed with Bad Faith Claim


In the case of Solano-Sanchez v. State Farm Mut. Auto. Ins. Co., No. 5:19-CV-04016 (E.D. Pa. Jan. 24, 2020 Leeson, J.), the court denied a carrier’s Motion to Dismiss a Plaintiff’s breach of contract and bad faith claims in a UIM case. 

The Plaintiff alleged that the carrier had failed to pay her UIM benefits or to provide an explanation for its failure to do so. 

In his decision, Judge Joseph Leeson rejected the carrier’s argument that the Plaintiff had to “establish” bad faith by “clear and convincing evidence” in her pleading itself. The court noted that, while presenting clear and convincing evidence might be the Plaintiff’s burden of proof at trial, it was not her burden at the pleadings stage of the litigation to present such evidence. 

 Rather, the Court found that the Plaintiff only had to plausibly plead facts to assert that the carrier allegedly unreasonably denied benefits or declined to take action on her claim and that the carrier knew or should have known that its conduct was unreasonable.

Judge Leeson also rejected the carrier’s efforts to dismiss the Plaintiff’s claim for attorney’s fees. The court noted that such damages were permitted under the bad faith statute. 

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

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

Expert Allowed To Testify Regarding Bad Faith, But With Limitations


In the case of Three Rivers Hydroponics, LLC v. Florists’ Mut. Ins. Co., No. 2:15-CV-809 (W.D. Pa. Jan. 27, 2020 Hornak, J.), the court allowed a Plaintiff’s bad faith expert to testify with certain limitations.

The case arose out of a first party property loss from fire damage to a commercial greenhouse sterilization system.

The Plaintiff alleged that the carrier had wrongly denied coverage and that, as a result, the Plaintiff was forced out of business due to the carrier’s conduct. The Plaintiff sued for breach of contract and bad faith.

One of the experts the Plaintiff sought to use at trial was a bad faith expert. That bad faith expert was an attorney who also had over twenty (20) years of experience as a claims adjuster. That expert was offered by the Plaintiff to present opinions regarding insurance industry standards and practices, regarding the carrier’s handling of the claim at issue, regarding the carrier’s compliance with insurance statutes and regulations, and with respect to an interpretation of the carrier’s policy that was issued to the Plaintiff.

The carrier brought a Daubert Motion to Preclude the Plaintiff’s bad faith expert’s testimony. The defense asserted that the expert attorney’s legal conclusions would not help a jury. The carrier more specifically sought to preclude the expert from testifying on whether or not the carrier violated statutes or regulations and with respect to the expert’s interpretation of the Plaintiff’s insurance policy.

The federal district court ruled that “the admissibility of expert testimony hinges on a ‘trilogy of restrictions’: qualification, reliability and fit.”

In this matter the admissibility of the testimony rested on the restrictions pertaining to 'fit.'   In that regard, the court noted that, under Federal Rule of Evidence 702, the expert testimony must help the jury to understand the evidence or to determine a fact in issue.

The court noted that the “standard for fit is ‘not that high,’ although the standard was noted to be is higher than mere relevance.

In the end, the court ruled that, with certain limitations, the bad faith expert’s testimony would assist the jury in determining what constituted reasonable conduct when handling an insurance claim. The court noted that the expert’s twenty-six (26) years of experience as a claims adjuster would also be helpful in providing the jury with guideposts as to what constitutes reasonable adjusting and claims handling conduct.

As such, the expert was permitted to testify as to best practices in handling insurance claims of the type at issue in this case.

The expert was prohibited from testifying on whether or not the carrier violated any statutes or regulations.

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 & Harris for bringing this case to my attention.

Wednesday, February 26, 2020

Dead Man's Rule Applied to Affirm Entry of Judgment in Favor of Deceased Defendant


In its latest application of the Dead Man’s Rule, the Pennsylvania Superior Court in the case of Jones v. Plumer, 2020 Pa. Super. 7 (Pa. Super. Jan. 15, 2020) ruled that a Plaintiff would not be able to testify in a case against her landlord in a trip and fall matter, where the landlord died before he could provide any counter testimony. 

The court also ruled that, given that the Plaintiff was not able to testify in the matter, the other evidence did not sufficiently support a finding of causation.

As such, the Superior Court affirmed the entry of summary judgment in favor of the Defendant by the trial court. 

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

Court Rules No Breach and No Bad Faith Where Exclusion Precluded Coverage


In the case of Tarttour v. Safeco Ins. Co., No. 17-1896 (E.D. Pa. Jan. 28, 2020 DuBois, J.), the court granted the carrier’s Motion for Summary Judgment in a breach of contract and bad faith claim after finding that coverage did not apply under the case presented. 

By way of background, Defendant Safeco, provided a homeowner’s insurance policy to its insured. The insured lived in the home covered by the policy with his two (2) children. The insured became ill and went to the hospital where he had to be put on life support. 

When a decision was made by the insured’s wife and one of his children to remove the insured from life support, the insured’s other adult child did not agree with the decision and began to threaten suicide. As part of that process, that adult son set his room on fire in an effort to commit suicide but then changed his mind and survived. 

A fire loss claim was submitted to the carrier for coverage. The carrier denied coverage asserting that the accidental loss provision in the policy did not apply and/or that coverage was excluded under the intentional loss exclusion. 

After reviewing the facts of the case before it and noting that coverage disputes were initially to be decided by the court, the court ruled that the facts presented did not fall under the accidental loss provision of the policy and/or that the facts implicated the intentional loss exclusion. As such, the breach of contract claim was dismissed.

The court also dismissed the companion bad faith claim after finding that the undisputed evidence demonstrated that the carrier has a reasonable basis for denying the Plaintiff’s claim for coverage.

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, as well as the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this decision to my attention.

Tuesday, February 25, 2020

Mock Trial Jurors Needed for District Finals Set for Tomorrow In Scranton



District Finals 
of the 
Mock Trial Competition

Wednesday, February 26, 2020

6:00 pm


VOLUNTEERS NEED TO 
SERVE AS JURORS


Please contact 

Katie Nealon, Esq.
knealon@munley.com

or

Ryan Campbell, Esq.
hrlaw04@gmail.com

Wrongful Employment Discharge Claim Allowed to Proceed Under Medical Marijuana Act


In the case of Laidacker v. Berwick Offray, No. 726-CV-2019  (C.P. Col. Co. Jan. 2, 2020 James, J.), the court overruled Preliminary Objections to a Complaint that was filed on the basis of an alleged Medical Marijuana Act violation.

According to the Opinion, the Plaintiff sued after the Defendant revoked an offer of employment to the Plaintiff after the Plaintiff tested positive for marijuana.  However, the Plaintiff was a valid medical marijuana patient.

The Plaintiff sued the employer for a violation of the Medical Marijuana Act and under a claim of wrongful discharge.

The Medical Marijuana Act contains specific provisions that prohibit employers from discriminating against employees or prospective employees who are valid Medical Marijuana patients.

The defense raised the issue in its Preliminary Objections as to whether a plaintiff could sue for money damages under the Medical Marijuana Act where the Act only allegedly provided for administrative remedies.

Although Judge James noted in his decision that this issue appeared to be one of first impression, he also noted in footnote 2 of his Opinion that Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas had issued a similar decision in the case of Palmiter v. Commonwealth Health Systems.  The Tort Talk posts on the Palmiter case can be viewed HERE.

This decision appears to be the first one in which a Pennsylvania court has held that there is no conflict between the Medical Marijuana Act and federal law.

The decision is also noteworthy in that the court allowed punitive damages claim to proceed as well.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Matthew Mobilio of Mobilio Law in Allentown, PA for bringing this decision to my attention.

Monday, February 24, 2020

Can You Help? Volunteers Needed to Serve as Jurors in Lackawanna County Mock Trial District Finals This Wednesday



District Finals 
of the 
Mock Trial Competition

Wednesday, February 26, 2020

6:00 pm


VOLUNTEERS NEED TO 
SERVE AS JURORS


Please contact 

Katie Nealon, Esq.
knealon@munley.com

or

Ryan Campbell, Esq.
hrlaw04@gmail.com

Another UIM Bad Faith Claim Dismissed for Insufficient Facts


The trend of the federal courts continuing to require plaintiffs to alleged sufficient facts in support of bad faith claims continues.

In the case of Velazquez v. Progressive American Ins. Co., No. 19-3665 (E.D. Pa. Jan. 21, 2020 Joyner, J.), the Eastern District Federal Court of Pennsylvania dismissed a UIM bad faith claim due to the Plaintiff’s failure to plead sufficient facts in support of the claims presented.

The court found that the Plaintiff did not provide facts to sufficiently plead bad faith allegations regarding the carrier’s alleged failure to negotiate the Plaintiff’s UIM claim, the carrier’s alleged failure to properly investigate and evaluate the claim, and the carrier’s alleged bad faith claim failure to request a defense medical examination of the Plaintiff.

The court found that the allegations amounted to only legal conclusions bereft of factual support. The court also rejected the Plaintiff’s attempt to allege the bad faith claim based upon “acts to be shown through discovery.”

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

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

Claim of "Institutional Bad Faith" Rejected


In the case of Wenk v. State Farm Fire & Cas. Inc. Co., 1288 WDA (Pa. Super. Jan. 14, 2020 Lazarus, J., Olson, J. and Shogan, J.) (Op. by Shogan, J.) , the Pennsylvania Superior Court, in an unpublished decision addressed the issue of whether a claim of “institutional bad faith” states a valid private cause of action under Pennsylvania law.

The court ruled that there was no such valid cause of action given that Pennsylvania bad faith law requires a focus on the case and the parties at hand, and not a carrier’s conduct towards other parties in general or its allegedly universal practices.

The Superior Court noted that the bad faith statute authorizes actions by a trial court if the court finds that the carrier has acted in bad faith “toward the insured…, and not to the world at large.”

This case arose out of a homeowner’s insurance claim.

This decision is otherwise notable for the fact that both the trial court and the Superior Court in this matter held that the Uniform Trade Practices and Consumer Protection Law (UTPCPL) does not apply to insurer claims handling cases.

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


I send thanks to Attorney Mark Martini of the Pittsburgh law firm of Robb Leonard & Mulvihill for bringing this decision to my attention.

Friday, February 21, 2020

ARTICLE: PREMISES LIABILITY UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.


PREMISES LIABILITY UPDATE

By

Daniel E. Cummins




Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.

Dog Bite

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

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

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

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

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

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

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

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

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

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

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

Trivial Defect Doctrine

In the case of McKenzie v. Wal-Mart, No. 1540-CV-2018 (C.P. Monroe Co. Oct. 18, 2019 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, during the afternoon hours of October 3, 2017, the Plaintiff was walking from his vehicle to the store when he tripped and fell in the parking lot due to an alleged defect in the seam between the sidewalk and a raised curb. The alleged defect was a gap that was estimated to be somewhere between one and a quarter inches wide, one and a half inches deep, and running the length of the sidewalk.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that there was any defeat to the walking surface or that any alleged defect that was allegedly present was a trivial defect.

In response, the Plaintiff asserted that the triviality of a defect is a question of fact that should be put to the jury.

Judge Williamson pointed to Pennsylvania cases that reviewed the trivial defect doctrine and in which it had been held that an elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there is no negligence in permitting it to exist. He also noted that the courts have held that there is no definite or mathematical rule that can be laid down as to the depth or size off a sidewalk depression necessary to give rise to liability on a landowner.

After reviewing prior decisions out of Monroe County involving similar facts, Judge Williamson noted in this McKenzie case that, reviewing the evidence in a light most favorable to the Plaintiff, summary judgment was appropriate as the circumstances surrounding the alleged defect did not rise to support any finding of negligence. The court noted that the gap at issue was clearly visible, not overly large, and appeared to be a part of the design of the sidewalk.

Slip and Fall
In the case of Elliot v. Cinemark USA, Inc., 5550-CV-2017 (C.P. Monroe Co. Oct. 4, 2019 Williamson, J.), the court entered summary judgment in favor of a movie theater in a slip and fall matter after finding that the Plaintiff did not establish that the Defendant had actual or constructive notice of the existence of a dangerous condition.

According to the Opinion, the Plaintiff went to the Defendant’s theater in the early afternoon hours to see a movie. While walking near a self-serve condiment station in the lobby, the Plaintiff slipped and fell. The Plaintiff alleged that she slipped and fell on a spill of popcorn butter.

According to the evidence in the case, the Defendant admitted that the self-serve condiment area was known to become messy quickly such that it was the theater’s policy to clean the area every thirty (30) minutes. The Plaintiff alleged that this policy was inadequate.

The Plaintiff had testified that the floor was wet and greasy when she fell. Another witness testified to the existence of a couple of drops of some substance, about the size of a quarter, approximately three (3) feet from the counter.

The Defendant’s employees testified that they performed the required half-hour checks at the condiment station. The Defendant also provided documentation to show that the various cleaning tasks had been completed that afternoon.

Based upon the record before the court, the judge ruled that the Plaintiff did not establish that the Defendant had any actual or constructive notice of any dangerous condition. As such, summary judgment was entered in favor of the theater.

Court Rules Hills and Ridges Doctrine Inapplicable


In the case of Dugans v. Concorde West, LLC., No. C-48-CV-2018-00612 (C.P. Northampton Co. Sept. 16, 2019 Roscioli, J.), the court denied a Defendant’s Motion for Summary Judgment in a winter slip and fall event.

According to the Opinion, the Plaintiff was residing an apartment complex when a multi-day snowstorm took place in the area.

On the day after the storm ended, the Plaintiff ventured out and was clearing snow from around his vehicles that were parked on the property. After approximately one (1) hour of this work, the Plaintiff slipped and fell on a patch of ice that remained under a thin layer of snow around his vehicle.

The Plaintiff asserted in his lawsuit that this icy area was created by runoff water from gutters and downspouts on the Defendants’ property, which water was allowed to freeze when salt was not properly applied to the area.

The defense filed a Motion for Summary Judgment relying, in part, on the hills and ridges doctrine and an argument that the alleged condition upon which the Plaintiff fell was an open and obvious condition and that the Plaintiff assumed the risk of injury while walking upon that surface.

In its Opinion, the court reviewed the law of the hills and ridges doctrine and emphasized that that doctrine is only applicable when the ice and snow at issue a result of an entirely natural accumulation.

In this case, the Plaintiff was alleging that the icy condition was caused by human negligence in the form of the gutters and downspouts that were allegedly improperly designed, constructed or maintained and which allowed water runoff to flow directly onto walkways.  As such, the court found that a jury could find that the hills and ridges doctrine did not apply.

The court also rejected the defense argument under the open and obvious doctrine by noting that the Plaintiff testified at his deposition that he could not see the ice and was unable to notice the ice that was under the snow.

Given these issues, the Motion for Summary Judgment filed by the defense was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Linda Schick of the Doylestown, PA law firm of Naftulin & Shick for bringing this case to my attention and I send thanks to Attorney Edward Shaughnessy of Shaughnessy Law Office in Easton, PA for providing me with a copy of the same.

Thursday, February 20, 2020

Pennsylvania Supreme Court Addresses Proper Application of Immunity Provisions Under Mental Health Procedures Act



In the case of Dean v. Bowling Green-Brandywine, No. 26 MAP 2019 (Feb. 19, 2020, Dougherty, J.), the issue before the Pennsylvania Supreme Court involved the scope and application of the qualified immunity provided under Section 114 of the Mental Health Procedures Act (MHPA), 50 P.S. sections 7101-7503.

According to the Opinion, the Plaintiff entered the Defendant's facility for drug addiction rehabilitation treatment.

The Pennsylvania Supreme Court concluded the Superior Court erred in affirming the entry of a compulsory nonsuit and held that immunity did not apply under circumstances presented in this case where: (1) the patient was admitted for and primarily received drug detoxification treatment; and (2) the patient did not receive treatment to facilitate recovery from a mental illness.
Consequently, the Court reversed and remanded the matter for further proceedings.

Anyone wishing to review this case may click this LINK.

Pennsylvania Supreme Court Addresses Proper Application of Fair Share Act


In the case of Roverano v. John Crane, Inc., No. 26 EAP 2018 (Feb. 19, 2020 Mundy, J.), the Pennsylvania Supreme Court addressed the issue of whether the Fair Share Act, 42 Pa. C.S.A 7102, required a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions.

According to the Opinion, the Plaintiff, William Roverano, was allegedly exposed to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and a carpenter with PECO Energy Company. Additionally, he allegedly smoked cigarettes for approximately thirty years. In November 2013, Roverano was diagnosed with lung cancer in both lungs. 

In 2014, Roverano brought a strict liability lawsuit against various defendants asserting that exposure to their asbestos products caused his lung cancer. His wife, Jacqueline Roverano, filed a loss of consortium claim. 

Before trial, several defendants filed a Motion In Limine seeking a ruling that the Fair Share Act applied to asbestos cases. The issues raised in that Motion gradually made its way up the appellate ladder to the Pennsylvania Supreme Court. 

The Supreme Court concluded the Act’s plain language was consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases was impossible to execute. 

Accordingly, the Supreme Court reversed the Superior Court’s Order, which had vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis. 

Additionally, the Supreme Court considered whether the Act required a factfinder to apportion liability to bankrupt entities that had previously entered into a release with the Plaintiff. In this regard, the Court concluded that, upon appropriate requests and proofs, bankruptcy trusts that were either joined as third-party defendants or that had entered into a Release with the plaintiff should be included on the verdict sheet for purposes of liability only. 

In the end, this case was remanded to the trial court to consider whether the parties submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

The Majority Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

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

I send thanks to Attorney Kenneth Newman of the Pittsburgh Office of Thomas, Thomas & Hafer for noting this case.

Court Rejects Effort by Manufacturer To Expand Protections of Products Liability Law in Medical Devices Case


In the case of Gross v. Coloplast, No. 19-4385(E.D. Pa. Jan. 17, 2020 Baylson, J.), the court reviewed the Pennsylvania Supreme Court’s decision in the case of Tincher v. Omega Flex to reject efforts by the defense to carve out an exception to Pennsylvania’s strict liability law or the makers of prescription medical devices. The court denied the Defendant company’s Motion to Dismiss the Plaintiff’s Complaint.

In this case, the Defendant, Coloplast, had sought to expand the protections afforded to the makers of prescription drugs under comment K to section 402 of the Restatement (Second) of Torts.

Judge Baylson rejected this effort by noting that, under Tincher, the “Pennsylvania Supreme Court has strongly discouraged Pennsylvania courts from carving out certain categories of products for special treatment within the common law of products liability.

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

Source: Article – “US Judge, Weighing ‘Tincher’ Green-Lights Strict Liability Claims Against Med Device Maker,” By Max Mitchell of The Legal Intelligencer (Jan. 21, 2020).

Court Upholds Dogs' Right to Bark or Growl


In the case of Grau v. Carroll, No. C-48-CV-2017-09424 (C.P. Northampton Co. March 28, 2019 Roscioli, J.), the court granted the Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleges that she was caused to fall when she was startled by the Defendants’ dog, a golden retriever.  The Plaintiff alleged that the dog ran up to the edge of an invisible/electric fence which caused the Plaintiff to back away from the dog, step off a sidewalk, fall, and allegedly sustain physical injuries.

The Defendants filed a Motion for Summary Judgment on the grounds that the Plaintiff failed to produce sufficient evidence to support claims of negligence. In response, the Plaintiff cited a local ordinance pertaining to the confinement of dogs, a violation of the dog law, regarding confinement of dogs and harboring dangerous dogs, and under ordinary common law negligence principles.

The court noted that the evidence presented in the record confirm that the dog was confined to the premises of the owner by way of an electric fence. The court noted that the evidence confirmed that the dog remained within the Defendants’ yard at all times even when the Defendants’ dog was barking at the Plaintiff’s dog. 

With regards to the Plaintiff’s allegation that the Defendants were harboring a dangerous dog, no evidence was produced that the dog had ever bitten any other human or animal. The court noted that, the fact that the Defendants’ dog would run up to the electric fence lien and bark at people walking by was not sufficient to support a finding that the Defendants harbored an aggressive dog. 

The court also rejected the Plaintiff’s arguments under common law negligence principles for many of the same reasons. More specifically, the court noted that the evidence confirmed that the dog remained confined to the Defendants’ premises. The court additionally noted that there was no duty under the law for a dog owner to prevent his dog from barking or growling or from running along a fence inside the owner’s yard so as to prevent the dog from allegedly startling others. 

In defense of dogs, the court noted that “[t]he simple reality is that dogs bark, and sometimes growl. It is their means of communication, as they lack the capacity for speech that humans possess. To impose upon dog owners a duty to prevent their dogs from barking or growling would be to impose an impossible burden.” 

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

If you need any assistance bringing any dog bite case you may have to a close by way of a settlement, please do not hesitate to contact me to arrange for a mediation through Cummins Mediation Services. Curriculum Vitae and Fee Schedule available upon request.

Jurors Needed For Lackawanna County District Finals in Mock Trial - February 26th




District Finals 
of the 
Mock Trial Competition

Wednesday, February 26, 2020

6:00 pm


VOLUNTEERS NEED TO 
SERVE AS JURORS


Please contact 

Katie Nealon, Esq.
knealon@munley.com

or

Ryan Campbell, Esq.
hrlaw04@gmail.com

Wednesday, February 19, 2020

Commentators Suggest Writing Out "2020" On All Important Documents


Have seen this tip a few times so far this year and thought it a good one to pass along.  

It is recommended that you write out "2020" whenever writing the date out on important documents, checks, or any legal documents or filings, so as to prevent anyone from changing it, i.e., changing 2/19/20 to 2/19/2018.

Tuesday, February 18, 2020

Allegations of Recklessness Allowed to Proceed in Lackawanna County Motor Vehicle Accident Case


In his decision in the case of Wolff v. Taylor, No. 19-CV-4988 (C.P. Lacka. Co. Feb. 12, 2020 Nealon, J.), Judge Terrence R. Nealon, relying upon the Pennsylvania Superior Court case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), continued the trend of decisions in Lackawanna County allowing Plaintiffs in that county to generally plead allegations of recklessness in any personal injury case.

The Wolff case involved an intersectional motor vehicle accident involving personal vehicles in which the Plaintiff alleged that the Defendant-driver ran a red light and failed to keep a proper lookout.   In conjunction with their standard claims of negligence, the Plaintiffs also asserted that the Defendant-driver's conduct was reckless.

The Court noted that, as indicated in the Superior Court's decision in the Archibald case, allegations of recklessness are permitted to be pled in a general fashion in civil litigation matters under Pa.R.C.P. 1019.  In issuing his detailed Order in this case, Judge Nealon also cited to a long line of Lackawanna County decisions in supporting the allowance of this type of pleading as well.

The Court declined to follow the defense's reliance upon the line of decisions from other counties in which those courts have sustained demurrers to claims of recklessness where the facts presented only rose to the level negligence and did not show any outrageous conduct or evil motive on the part of the defendant to support any possible claims for punitive damages.

The demurrer asserted by the defense in this matter against the claims of recklessness was overruled and that portion of the case was allowed to proceed.

In his Opinion, Judge Nealon did note that the defense did retain the right to revisit the issue at the conclusion of discovery by way of a motion for summary judgment.

Anyone wishing to review this detailed Order issued by Judge Nealon in the Wolff case may click this LINK.

Third Circuit Court of Appeals Rejects Plaintiff's Request for a New Trial Because Trial Judge Used Hand Gestures When Providing Jury With Instructions in Bad Faith Case


Just when you think you've heard all, along comes an argument that a new trial should be granted because a trial court judge improperly used hand gestures during jury instructions to explain a point.

In the case of Antonio v. Progressive Insurance Co., No. 19-1074 (3d Cir. Jan. 8, 2020 Fuentes, J., Scirica, J., Shwartz, J.), the Third Circuit Court of Appeals reviewed various evidentiary rulings by a lower court judge in a post-verdict appeal after a jury entered a verdict in favor of the carrier in a UIM bad faith case.

Of note, the Third Circuit Court of Appeals agreed that there was no abuse of discretion by the trial court judge in barring the Plaintiff’s expert testimony. The Plaintiff wanted her expert to testify for the very limited purpose of establishing a range of value for her underlying UIM claim.

The court noted that this analysis involved the expert looking at other cases not before the court in this trial. The trial court had ruled that “what other cases have paid is not relevant to this case [and] what the value of this case is [and] the jury will be instructed to use their common sense in compensating [the insured] should be prevail.”

The court of appeals found no abuse in the trial court’s discretion in finding that the proposed expert testimony would not aid the jury in the case at hand.

The Third Circuit Court of Appeals also upheld the trial court’s ruling that precluded the Plaintiff from introducing into evidence in the bad faith claim a medical report that addressed the extent of the Plaintiff's alleged injuries and damages, where that report was never provided to the carrier during the underlying claims process.

The court found that such evidence had no relevance to the issue of whether the carrier acted in bad faith as they had not been provided with any opportunity to include that information in their underlying investigation and evaluation.

The appellate court also rejected the Plaintiff’s challenge to the jury instructions. The Plaintiff was complaining that she was entitled to a new trial because the judge had used “hand gestures demonstrating [the Plaintiff’s] burden in the ‘clear and convincing’ standard as a point mid-way between proof by preponderance of the evidence and proof beyond a reasonable doubt.” The court found no error here that would merit the relief requested by the Plaintiff in this regard.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris for bringing this decision to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Allegations of Recklessness Allowed to Proceed in Northampton County Car Accident Case


In the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. Northampton Co. Jan. 28, 2020 Murray, J.), the court addressed Preliminary Objections filed by a Defendant in a motor vehicle accident case relative to allegations of recklessness in a motor vehicle accident Complaint.

According to the Opinion, the Plaintiff alleged in her Complaint that the Defendant failed to stop at a stop sign and crashed into the Plaintiff’s vehicle.

On one issue, the defense contested the Plaintiff’s allegations that the Defendant was driving “recklessly.”

The defense noted that, under Pennsylvania law, recklessness or wanton disregard requires a showing that the actor knew or had reason to know of facts which created a high degree of risk of physical harm to another person and that the actor deliberately proceeded to act, or failed to act, in conscious disregard of, or indifference to, that risk.  The defense asserted that the Plaintiff did not allege any facts related to the Defendant’s knowledge or facts related to the Defendant’s alleged deliberate indifference.

In response, the Plaintiff attempted to differentiate between allegations of recklessness and negligence. The Plaintiff also noted that, under Pa. R.C.P. 1019(b) “[m]alice, intent, knowledge, and other conditions of mind may be averred generally.”

The court also emphasized that, in this matter, the Plaintiff was not seeking punitive damages in the Complaint.

In the end, the court overruled the Defendant’s Preliminary Objections in this regard under a rationale that allegations of recklessness may be pled generally.

This decision continues the split of authority amongst the trial courts, with some courts requiring plaintiffs to plead facts of outrageous or intentional conduct by the defendant (something beyond mere negligence), and other courts allowing Plaintiff's to plead recklessness in any case whatsoever regardless of the facts alleged.

The defense in this Speight case also objected to the Plaintiff’s inclusion in the Complaint the phrase “included but not limited to” with respect to the Plaintiff’s alleged injuries.

The court noted that the inclusion of the term “including but not limited to” is not prohibited under Pennsylvania law as amendments to the Complaint could be made at a later date if such an amendment only amplifies what has already been pled in the Complaint. As such, the court overruled the Defendant’s Preliminary Objections in this regard as well.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Ed Shaughnessy of Shaughnessy Law Office in Easton, PA for bringing this case to my attention.

Monday, February 17, 2020

Plaintiff Precluded From Testifying as to Defendant's Speed Where Only Saw Vehicle a Split Second Before Impact


In the case of Berklovich v. Quarrick, No. 2567-CV-2018 (C.P. Westmoreland Co. 2020 Scherer, J.), the court granted a defendant's Motion for Partial Summary Judgment and dismissed a Plaintiff's claim for punitive damages based upon allegations of excessive speed and cell phone use by the defendant during a motor vehicle accident.

According to the Opinion, the Plaintiff was rear ended and, as a result, her vehicle was propelled forward across two lanes of traffic.

After discovery, the defense filed a partial motion for summary judgment seeking a dismissal of the punitive damages claims.  The court granted the motion.

While the court agreed that driving at an excessive rate of speed and using a cell phone could constitute conduct sufficient to support a claim for punitive damages, the court also found that the Plaintiff had not presented sufficient evidence to support such a claim.

The court noted that the only testimony on the speed of the defendant's vehicle was from the Plaintiff.  The Plaintiff admitted that she only saw the defendant's vehicle a split second before the impact.  Relying upon the case of Guzman v. Bloom, 198 A.2d 499, 502 (Pa. 1964) and the case of Anderson v. Perta, 10 A.2d 898 (Pa.Super. 1940), the court ruled that observing the defendant's vehicle for such a short amount of time before the accident did not lay a proper foundation for the Plaintiff to offer her lay opinion as to the speed of the defendant's vehicle.

On the issue of the defendant's cell phone use, the court noted that the Plaintiff did not secure the defendant's cell phone records or otherwise present evidence to confirm that the defendant was using his phone at the time of the accident.  The court rejected the Plaintiff's effort to rely upon an allegation in the Complaint that the defendant was unconscious after the accident and had no recollection of whether he was on his cell phone at the time of the accident or not.

Anyone wishing to review this case may click this LINK.

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

HAPPY PRESIDENT'S DAY


Friday, February 14, 2020

ARTICLE: POST-KOKEN UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.



POST-KOKEN UPDATE


By



Daniel E. Cummins



Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.


Bifurcation of Trial

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

Effect of Third Party Release

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

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

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

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

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).
The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

Effect of Third Party Release

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

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

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

The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.
The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.

Household Exclusion

The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle. The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier. The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative exclusion is not valid. The trial court is now following the federal courts on this issue.

Household Exclusion

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.  Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him. Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court. After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Future Medical Expenses

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury. See p. 21-26 of Opinion.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

It is noted that this decision did not affect the rule of law that past medical expenses have to be reduced in accordance with Act 6 before being presented to a jury.

Thursday, February 13, 2020

Judge Nealon of Lackawanna County Recites the Law of Invitees, Licensees, and Trespassers


As noted in the case below, a plaintiff's ability to recover in a premises liability case may turn on whether that plaintiff is deemed to be a business inviteee, licensee, or a trespasser.

In the case of Giles v. Pennsylvania American Water Co., No. 17-CV-5616 (C.P. Lacka. Co. Jan. 23, 2020 Nealon, J.), the court addressed Preliminary Objections filed by a landowner Defendant in a case involving a minor Plaintiff who was allegedly injured as a result of a fall on the Defendant’s property surrounding a reservoir.

In his Opinion, Judge Terrence R. Nealon provided a detailed recitation of the current status of premises liability law and the issues of whether a Plaintiff may be deemed as an invitee, licensee, or trespasser under the care presented. In this matter, the issue appeared to center around whether the Plaintiff was a licensee or a trespasser.

Finding that the Plaintiff had alleged sufficient facts to get beyond a demurrer, the court denied the Defendant’s Preliminary Objections in this regard.

The court also denied the Preliminary Objections filed by the Defendant against the Plaintiff’s general allegations of reckless and willful conduct.

Judge Nealon once again ruled, as he has done on numerous occasions in the past, that such claims may be generally pled under the Pennsylvania Rules of Civil Procedure.

The court noted that, upon the completion of discovery, the Defendant could test the of the validity of the punitive damages claim by way of a Motion for Summary Judgment.

The court also noted that the Plaintiffs would not be able to obtain any financial wealth discovery against the Defendant under Pa. R.C.P. 4003.7 unless the Plaintiff first demonstrated a prima facie right to recover punitive damages under Pennsylvania law.

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


If you need help bringing your premises liability case to close by way of a settlement at a Mediation, please do not hesitate to contact me to schedule a Mediation with Cummins Mediation.  I can be reached at dancummins@cumminslaw.net or at 570-319-5899.



Borrowed Servant Doctrine Applied to Support Entry of Summary Judgment in Favor of Employer


In the case of Solomon v. FedEx Supply Chain, Inc., No. 1:17-CV-02385 (M.D. Pa. Jan. 14, 2020 Rambo, J), Judge Sylvia H. Rambo addressed the current status of Pennsylvania law on the borrowed servant doctrine.

According to the Opinion, this personal injury case arose out of a forklift accident that occurred within the scope of the Plaintiff’s employment.

At the time of the accident, the Plaintiff was a contractual employee for an employment agency and was assigned to work as a forklift operator and order picker at a FedEx Distribution Center.

Under the contract between the temporary employment agency and FedEx, FedEx was responsible for, among other things, training, supervising, and instructing staffing personnel, as well as for maintaining a safe workplace. The contract also provided that FedEx retained direction and control over the staffing personnel as it determined in its sole discretion to be appropriate, including the right to accept, reject, and remove staffing personnel.

Under the agreement, the employment agency was solely responsible for selecting, hiring, disciplining, reviewing, evaluating, and terminating personnel, as well as for paying the worker’s wages and maintaining the benefits.

The Plaintiff was injured on his first day of work at the FedEx Distribution Center after undergoing training in the morning and being assigned to shadow another FedEx employee. During that first day of work, the Plaintiff was operating a standup forklift when he collided with a parked forklift and allegedly sustained injuries as a result.

The Plaintiff sued FedEx following this incident.

FedEx eventually filed a Motion for Summary Judgment requesting the dismissal of the Plaintiff’s claims for negligence on the basis that FedEx was Solomon’s statutory employer and was therefore immune from suit under the Pennsylvania Workers’ Compensation Act.

The court noted that, generally speaking, employees who are injured at work are limited to compensation available to them under the Workers’ Compensation Act and cannot separately sue their employers for personal injury.

The court noted that this immunity provided by the Workers’ Compensation Act extends from the direct employer as well as to other entities that may have “borrowed” the employee and if the latter exercises sufficient control over the employee.

Under the borrowed servant doctrine, the “crucial test” in determining whether a worker furnished by one person to another becomes the employee of the person to whom he is loaned is whether the worker passes under the latter’s right of control with regards not only to the work to be done but also to the manner of performing it.

A borrowed employee in this regard is considered to a statutory employee and the borrowing employer is considered to a statutory employer.

The court noted that, if there are issues of fact on the issue of whether a defendant is a statutory employer, the question is usually one to be decided by a jury.   However, where the material facts are not in dispute the question can be properly the subject of a Motion for Summary Judgment.

After applying the law to the facts before her, Judge Rambo concluded that FedEx was the Plaintiff’s statutory employer pursuant to the borrowed servant doctrine. Accordingly, the court found that FedEx was entitled to immunity under the Pennsylvania Workers’ Compensation Act to any personal injury suit. As such, FedEx’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Richard B. Wickersham, Jr., of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Judge Zulick Requires Plaintiff To Specify in her Complaint the Defect That Allegedly Caused Her to Fall


In the case of Meade v. Trendi Pawz, No. 6112 Civil 2019 (C.P. Monroe Co. Jan. 29, 2020 Zulick, J.), Judge Arthur K. Zulick sustained a defendant's preliminary objections to a non-specific slip or trip and fall Complaint but allowed the plaintiff the right to file a Third Amended Complaint.

According to the Opinion, in the plaintiff's Second Amended Complaint, the plaintiff generally averred that she "tripped and fell on the dangerous conditions of the Defendant's property."

She then asserted in another single paragraph that the defendant's "allow(ed) a defective floor near the entranceway to the building, a defective rug near the entranceway to the building, a defective step tread dimension, a defective step of the building and a defective entranceway to the building to exist thereon (hereinafter referred to as the "dangerous conditions.").

Judge Arthur K. Zulick
Monroe County

The court noted that the Second Amended Complaint was not specific enough to apprise the defendant as to what caused the Plaintiff to fall or whether she had a chain reaction fall down event after encountering numerous alleged defects on the floor, a rug, a step, and/or some other unspecified defect of the entranceway to the building.

In allowing the plaintiff another shot at properly pleading a cause of action, the court cautioned that the allegations of negligence should be directed to a particular defect that allegedly caused the plaintiff to fall.

Anyone wishing to read Judge Zulick's decision in the Meade case may click this LINK.

I send thanks to Attorney Paraskevoula Mamounas, of the Allentown, PA office of Thomas, Thomas & Hafer for bringing this case to my attention.


Need help bringing your trip or slip and fall case to a close by way of a settlement.  Please consider scheduling a mediation with Cummins Mediation Services.  Resume and Fee Schedule available upon request at dancummins@cumminslaw.net or by calling 570-319-5899.




Wednesday, February 12, 2020

Removal of Car From Policy Does Not Require Carrier to Secure New Waiver of UIM Stacking Form


In the case Franks v. State Farm Mut. Ins. Co., 93 Bucks Co. L. Re. 6 (C.P. Bucks Co. Nov. 18, 2019, McMaster, J.), the court ruled in favor of the carrier in a declaratory judgment action involving UIM coverage and stacking issues.

The court noted that the issue before it appeared to involve a case of first impression, that being the issue of whether, under the MVFRL, is there a “purchase” of insurance when an insured removes a vehicle from their policy, thereby reducing the number of cars subject to a stacking requirement.

The court held that, under the Pennsylvania Motor Vehicle Financial Responsibility Law, State Farm was not obligated to offer its insureds the opportunity to waive stacking of underinsured motorist coverage when the insureds removed a vehicle from an already existing policy.

The court noted that, under 75 Pa. C.S.A. §1738(c), an insurance company must offer an insured the opportunity to waive stacking of UIM limits whenever an insured purchases UIM coverage for more than one vehicle under a policy.

The court noted that that the determination of the outcome of this case fell upon the definition of the word “purchase” under the statute.

The court applied the rules of statutory construction that words that are clear and free from all ambiguity to be applied in their ordinary and common usage.

The court reviewed other cases, including Sackett I, and found them not be to directly on point as the prior cases dealt with facts involving the increase of the number of vehicles on a policy or switching out vehicles on a policy.

The court noted that, while affirmatively adding a vehicle to an insurance policy requires the signing of a new waiver, the modification of an already existing policy does not.

In this case, the court indicated that it was dealing with the removal of vehicles from the policy and decreasing policy premiums. The court noted that a removal of a vehicle from the policy constituted a modification of a policy, and not a “purchase” of a new vehicle.

Accordingly, the court held that, removing a vehicle from an already existing policy, should not trigger the requirement that a carrier secure a new waiver of stacking when issuing the revised policy.
As such, in this Rule 1925 Opinion, the trial court recommended to the Superior Court that the Plaintiff’s appeal be quashed or denied.

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

I send thanks to Attorney John K. Shaffer of the Plymouth Meeting, Pennsylvania law offices of Lester G. Weinraub for bringing this case to my attention.

First Named Insured Must Sign Rejection of Stacking Form For It to Be Valid


In the case of Rodriquez v. Penn National Mut. Ins. Co., No. S-203-16 (C.P. Schuylkill Co. Jan. 14, 2020 Goodman, J.), the trial court addressed the issue of the statutory requirement that a first named insured sign a rejection of stacking form in an underinsured motorist context in order for the rejection to be upheld.

According to the Opinion, in this matter, the wife of the first named insured signed the rejection of stacking form.

Thereafter, the wife was involved in a car accident and made claim for stacked UIM coverage, which Penn National denied.

The wife claimed that the rejection of stacking form was invalid under §1738 of the Motor Vehicle Code.

Penn National attempted to argue that the rejection form was still valid because the first named insured’s wife was acting as an agent of first named insured when she signed the rejection of stacking form.

Judge Goodman of the Schuylkill County Court of Common Pleas adopted the plain statute language requiring that a rejection of stacking form be signed by the “first named insured” rendered the rejection form invalid even though it was signed by the wife of the first named insured.

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

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