Tuesday, March 31, 2020

Claim of Spoliation of Video in Slip and Fall Case Rejected


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 by Chagares, J.)[Non-Precedential], the court affirmed the entry of summary judgment in favor of the defense in a slip and fall case.

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

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

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

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

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

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

Monday, March 30, 2020

Bring Your Case To A Close With Cummins Mediation Services


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

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

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

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

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


First Time Skier Gets a Pass


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, March 28, 2020

CUMMINS LAW DEFENDS POST-KOKEN MOTOR VEHICLE ACCIDENT MATTERS



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

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

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

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

www.CUMMINSLAW.net

Friday, March 27, 2020

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


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

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

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

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

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

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


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

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

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

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

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

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

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

Thursday, March 26, 2020

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


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

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

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

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

Judge Terrence R. Nealon
Lackawanna County

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

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

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


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

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

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

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

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

Insurance Policy's Limitation of Action Provision Upheld


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

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

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

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

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

The contract claim was therefore dismissed with prejudice.

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests


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

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

Anyone wishing to review this decision may click this LINK.


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

Wednesday, March 25, 2020

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


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

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

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

Judge David J. Williams
Monroe County

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

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

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

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

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

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

PAST ARTICLE: "Lawyers, Look After Yourselves"


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

Tuesday, March 24, 2020

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


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

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

The market was part of a plaza of stores. 

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

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

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

Judge Jennifer Harlacher Sibum
Monroe County

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

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

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

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

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


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

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

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

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

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

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

Monday, March 23, 2020

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


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

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

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

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

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

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

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


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

Sunday, March 22, 2020

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


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

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

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

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

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

Saturday, March 21, 2020

KEEPING IT REAL

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

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



KEEP CALM, KEEP SAFE

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

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




Friday, March 20, 2020

Issues Regarding Section 1734 Sign Down Form For Lower UIM Coverage


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

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

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

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

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

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

Anyone wishing to review this decision may click this LINK.

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

Summary Judgment Granted on Post-Koken Bad Faith Claim


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

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

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

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

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

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

Wednesday, March 18, 2020

Proper Venue for Cases Involving PennDOT As Party Defendant

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

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

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

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

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

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

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

Standards for Diminished Value of Car Following Accident


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

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

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

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

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

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

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

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

Anyone wishing to review this decision may click this LINK.

Tuesday, March 17, 2020

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


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

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

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

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

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

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


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

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

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

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




Monday, March 16, 2020

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

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

Anyone wishing to review this Order may click this LINK.

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

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

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

Friday, March 13, 2020

ARTICLE: The Art of Mediating: The Goal Is to Settle, Not Win

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through Cummins Mediation Services.  Please contact me at dancummins@CumminsLaw.net for my resume, fee schedule or to arrange for a Mediation.   Thank you.


The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    

By

Daniel E. Cummins














With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation. 

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Cummins Law. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation services through Cummins Mediation Services.



Wednesday, March 11, 2020

Judge Zulick of Monroe County Interprets Law of Balentine Decision



In the case of Martinez v. Swain, No. 9383-CV-2019 (C.P. Monroe Co. Feb. 6, 2020 Zulick, J.), Judge Arthur K. Zulick of the Monroe County Court of Common Pleas issued one of the first decisions since the previous Pennsylvania Supreme Court holding in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), regarding the governmental immunity afforded to municipalities and the issue of an exception applying to the “operation of a vehicle.”

 In this matter, the Complaint alleged that the Plaintiff was struck by another vehicle while she was crossing the street to gain excess to a passenger bus, which had stopped in an area outside of a destinated bus stop.

The Defendant bus company filed Preliminary Objections asserting that, since it was not the bus that hit the Plaintiff, but rather another vehicle, the ‘operation of the bus’ was not the cause of the Plaintiff’s alleged injuries and, therefore, the alleged conduct on the part of the municipality that ran the bus route could not fall within the exception to governmental immunity.

The Plaintiff argued that, by stopping the bus and inviting the Plaintiff to get onto the bus would fit with in the scope of newly defined ‘operation of a vehicle’ under the Balentine decision issued by the Pennsylvania Supreme Court, which overruled the thirty (30) years of precedent in issuing that decision.

Judge Zulick followed the rule of the Balentine case and overruled the Preliminary Objections under the facts presented since the bus driver knew, or should have known, that the Plaintiff would try to gain access to the bus, that stopping the bus in such an area would allegedly place the Plaintiff in a danger being struck be oncoming traffic, and given that the Plaintiff allegedly would not discover moving vehicles on the road as she attempting to cross the street to get to the bus.

Anyone wishing to review Judge Zulick’s detailed Order, without Opinion, may click this LINK.

I send thanks to Attorney Michael J. McKarski of the Bethlehem, Pennsylvania law office of Edward J. McKarski for bringing this case to my attention.

A Round of Mini-Golf Anyone?

Cummins Law Entrance is after the Lahey's sign
(See Cummins Law Sign in the background and part of our building)

As a landmark to help you find the new office for Cummins Law at the top of the Morgan Highway, keep an eye out for the big sign for our neighbor, LAHEY'S Family Fun Park.

As you drive up the mountain, the Cummins Law office will be on the right side of the road just after Lahey's.

Since our office is located right next to Lahey's, after depositions, we can enjoy the go-carts, bumper boats or  batting cages. 

Even better, built into the wooded mountainside right behind and adjacent to our office is Lahey's beautiful 36 Hole Mini-Golf Course replete with waterfalls and overlooking the Lackawanna Valley. 


Tuesday, March 10, 2020

No UIM Stacking Allowed Where Daughter No Longer Resided in Insured's Household (Non-Precedential)


In the case of Grix v. Progressive Specialty Ins. Co., No. 312 MDA 2019 (Pa. Super. Feb. 10, 2020 Dubow, J., Nichols, J., and Colin, J.) (Mem. by Dubow, J.) (Nichols, J., concurring in the result) (non-precedential decision), the court affirmed the lower court’s entry of summary judgment in favor of the carrier in this declaratory judgment action involving a stacking issue.

According to the Opinion, the insured’s daughter sustained fatal injuries in a motor vehicle accident. 

At the time of the accident, the insured’s daughter was in a vehicle owned by the insureds and covered under a policy issued by the Defendant carrier. The carrier insured five (5) vehicles owned by the insureds and the insured’s policy carried stacked limits of underinsured motorist coverage of $250,000.00 each person. The insureds sought to recover stacked UIM benefits from the carrier relative to the accident.

The carrier denied the claim for stacked benefits under an argument that the insured daughter, who had signed a lease at another address approximately six (6) weeks prior to her death, was not a “resident” of the insured’s household. 

The insureds filed this declaratory judgment action. 

After completing a detailed analysis of the numerous facts presented by both sides as to the residency of the insured’s decedent at the time of the accident, the appellate court affirmed the trial court’s entry of summary judgment in favor of the carrier. 

The trial court had ruled that, as a matter of “physical fact and presence,” the decedent’s daughter was not a resident of the insured’s household at the time of the accident. 

The policy language was also found to be unambiguous as to the relevant time of residency. 

The appellate court affirmed and noted that, under Pennsylvania law, the term of “resident” or “residency” requires, at a minimum, “so measure of permanency or habitual repetition.” See Op. at 10.  The court noted that most cases interpreting the “resident” analyzed the issue with regards to the quantity of contacts that an individual has with an insured’s household. 

In this case, although the insured’s daughter still received mail at her parent’s house, kept personal belongings at her parents’ house and continued to use her parents’ address as her address of record, the daughter could not be considered to be a “resident” of the insured’s household where, among other things, the daughter slept elsewhere every night. See Op. at 12. 

The court noted that there was no evidence to suggest that the daughter spent any night at her parents’ home after she moved into her rental premises prior to the accident.  As such, the Superior Court the court affirmed the lower court’s entry of summary judgment in favor of the carrier in this declaratory judgment action on the stacking issue. 

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

I send thanks to Attorney David R. Friedman of the King of Prussia, PA office of Forry Ullman for bringing this case to my attention.

Superior Court Addresses Validity of UTPCPL Claims


In the case of Wenk v. State Farm Fire & Casualty Ins. Co., No. 2020 Pa. Super. 26(Pa. Super. Feb. 7, 2020) (Shogan, J., Lazarus, J., and Olson, J). (Op. by Shogan, J.), the court affirmed in part and vacated in part a trial court’s decisions in a bad faith and Unfair Trade Practices and Consumer Protection Law (UTPCPL) claims against a contractor.

According to the Opinion, the case arose out of a Plaintiff’s lawsuit against a carrier and a contractor over repairs to the Plaintiff’s house. The Plaintiff alleged that another contractor poured gasoline into the framework of their house to destroy a bee’s nest.   The house was damaged as a result and the Plaintiff submitted a claim to his carrier.

The Plaintiff then agreed to let another contractor, who was approved by the carrier, to perform remedial work.

The Plaintiff alleged that there were issues with the remedial work. The Plaintiff sued the carrier and the contractor for breach of contract, breach of warranty, and violations of the UTPCPL.

On appeal, the appellate court agreed with the trial court that the Plaintiff’s bad faith and Unfair Trade Practices and Consumer Protection Law claims against the carrier had to be dismissed.

The appellate court also found that the trial court properly exercised its discretion with respect to the damages awarded in the UTPCPL claims against the contractor. However, the appellate court found that the trial court erred in dismissing the carrier’s and the contractor’s claims for a setoff.

The court noted that a setoff should have been allowed to the extent that the Plaintiff’s settlement with the other contractor covered any damages that the Plaintiff sought in this case including compensation for damages to the home and personal property so as to prevent any duplication of recovery.

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

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