Judge Nealon of Lackawanna County Denies Plaintiff's Discovery Motion in a Med Mal Case

In the medical malpractice case of Garvey v. Adamo, No. 19-CV-1893 (C.P. Lacka. Co. June 9, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed discovery issues pertinent to a Defendant's objections to a Plaintiff's notice to serve a subpoena upon the Attorney General's Office regarding charges filed against one of the Defendant doctor's for alleged charges of improperly prescribing and distributing controlled substances.  The basis for the Plaintiff's lawsuit was that the Defendant doctor had prescribed opioids to the Plaintiff in excessive amounts for years which allegedly caused the Plaintiff to become addicted and require rehab treatment.

In a fashion reminiscent of Judge R. Stanton Wettick (ret.) of Allegheny County, Judge Nealon reviewed the law of Pennsylvania pertaining to allowable discovery and confirmed that while discovery is liberally allowed in the Commonwealth, there are restrictions based upon reasonableness and fishing expeditions are not permitted.  

The Court found that the language of the subpoena requests was not set forth with reasonable particularity and also lack temporal parameters.  Judge Nealon ruled that the Plantiff's discovery request was "overly broad in scope and time in light of the professional negligence issues raised [by the Plaintiff] in this case."  Op. at p. 5.

As such, the Court denied the Plaintiff's motion to strike the medical Defendant's objections to the subpoena at issue addressed to the Attorney General's Office.

Anyone wishing to review this case may click this LINK

No More Appeals from Discovery Decisions in Lackawanna County From Discovery Court to Another Judge Within This Court

In the case of Rao v. Menzel, No. 18-CV-2102 (C.P. Lacka. Co. April 24, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the Local Rules of that Court and confirmed that there is no longer a right of appeal with respect to discovery rulings given the previous change in the Local Rules.

By way of background, several years ago, the Lackawanna County Court of Common Pleas instituted a change in the Local Rules which created a Discovery Master position which was filled by a local attorney selected by the Court to hear discovery disputes.  That Local Rule allowed for appeals from the Discovery Master to a trial court judge in the Lackawanna County Court of Common Please for further review if a fee was paid to file the appeal.

In more recent years, the Local Rule was changed given that Senior Judge Carmen D. Minora was assigned by the Court to hear all Discovery disputes.  Given that a sitting Senior Judge was in this position, there was no further need for the appeal mechanism because the original discovery decision was not handed down by a Discovery Master, but rather a sitting Senior Judge.

In this Rao case, the discovery issue was heard by Judge Minora's law clerk sitting at a Discovery Master.  One party party appealed that decision but Judge Nealon ruled that the Local Rules did not allow for the appeal as the Local Rules had abolished the special trial master system for discovery and the right of appeal.  As such, the court rule that, even though the underlying decision had been handed down in the manner it was, there was no longer a right of appeal under the Local Rules of Court.

Anyone wishing to review this decision may click this LINK

Source: "Digest of Recent Decisions."  Pennsylvania Law Weekly (June 23, 2020).

Pennsylvania Supreme Court Addresses Law on Retroactivity of Other Decisions Ruling a Statute Unconstitutional

Sometimes a decision out of the worker's compensation arena can provide guidance on issues that effect civil litigation matters.

On June 16, 2020, the Pennsylvania Supreme Court issued its decision in Dana Holding Corporation v. WCAB (Smuck), 44 MAP 2019 (Pa. 2020)(Op. By Saylor, C.J.)(Dougherty, J., concurring), which provides guidance on whether another decision striking down a statute as unconstitutional had retroactively effective or not.

In the case of Dana Holding, the Court addressed the issue of the retroactivity of the law set down in Protz v. WCAB (Derry Area School District) to the case at hand, i.e. to a case that was on direct appeal when the Protz case was decided.  The decision in Protz struck down the IRE process in worker's compensation matters.

The Defendant/Employer in Dana Holding had filed an appeal seeking a clarification as to when a new law should be applied retroactively. The Court agreed to hear the Appeal, but on a limited basis, specifically, whether the retroactivity of the Protz ruling should begin on the date of the IRE or the date of the decision. 

Ultimately, the Supreme Court affirmed the Commonwealth Court’s holding that the retroactivity of the Protz decision dates back to the date of the IRE in the context of a worker’s compensation matter.

After reviewing the prior Pennsylvania caselaw on the retroactivity of new law under the circumstances presented in this matter, the Court held that, unless the appellate decision rendering the new law specifically states that it is to be applied prospectively, the new rule of law is to be applied retroactively to cases where the issue in question is properly preserved at all levels of adjudication, including any direct appeal. 

Turning to the Dana Holding case specifically, the Court held that the parties had preserved the constitutionality of the IRE provisions during the litigation of the initial Modification Petition. The litigation involving the Modification Petition was ongoing at the time Protz was issued. Thus, the Court held that the Protz decision should be applied retroactively to the date of the IRE in this matter.

I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Anyone wishing to review the Majority Opinion in Dana Holding may click this LINK.  The Concurring Opinion can be viewed HERE.

Hear Tips From Top Mediators and Arbitrators To Improve Your Chances for Success at ADR Proceedings

The Wilkes-Barre Law & Library Association is hosting 

                            

A ZOOM CLE

             

 Presented By

Free For W-BLLA Members

$35.00 For Non-Members

"MEDIATION/ARBITRATION TIPS"

(The W-BLLA (#53) is now accredited as a Distance Learning Provider.)

This Program Provides 1 Hour of Substantive CLE Distance Learning Credit

Friday, July 10, 2020 -  1:00 p.m.

Created By:   Daniel E. Cummins, Esq. - Moderator and Presenter

Additional Presenters:

Judge Thomas M. Blewitt (ret.)

Richard G. Fine, Esq.

Thomas B. Helbig, Esq.

Lucille Marsh, Esq.

Judge Joseph Van Jura (ret.)

Judge Thomas I. Vanaskie (ret.)

Technology Assistance Provided by 

Advance Registration is necessary prior to that day.

 Please go to this LINK to Register for this Event.

Your Atty. I.D.# - Your Name - Title and Date of the program - And, if You are Planning to Call on a Telephone, Your Telephone #.

TWO HANDOUTS PREPARED BY ATTORNEY CUMMINS 

FOR THE PROGRAM ARE AVAILABLE FOR DOWNLOADING 

FROM THE BAR’S WEBSITE AT www.LuzerneCountyBar.com.

Minimum requirement for access to this program is a computer, laptop, ipad, cell phone or telephone.   If you plan to use your cell phone or an ipad,

you will need to download the Zoom App.

       After you Register, you will be emailed the link for the program.

All payments must be received 48 hours in advance of the program. Pay by check: Please mail a check payable to the "Wilkes-Barre Law and Library Association" to the Law Library at W-BLLA, Room 23, 200 North River Street, Wilkes-Barre, PA 18711.

If you have any questions, please call Gail Kopiak at (570)822-6712.

Quoted in Article in Texas Lawyer Regarding Impact of Pandemic On Auto Litigation Across the Nation

Here is a LINK to an article by Angela Morris of the Texas Lawyer, a statewide legal newspaper in Texas, from back in May of this year, on the impact of the Covid-19 pandemic on automobile accident litigation across the nation. 

Ms. Morris contacted me for my thoughts on the impact of the pandemic here in Pennsylvania and included some quotes in the article.

It appears that the general sense across the nation is that, while that there is current work in the automobile accident litigation field, most attorneys expect a dip in new claims in the future in light of the Covid-19 pandemic.

Link to the PBA's Guide to Reopening Your Practice

Here's a LINK to the Pennsylvania Bar Association's guide entitled "Reopening Your Practice" for your review if desired.  It is republished here with the permission of the Pennsylvania Bar Assocation.

This guide was created by the Pennsylvania Bar Association and its Covid-19 Task Force.  More fine work under the Presidency of Attorney David E. Schwager, Esq. of the Wilkes-Barre, PA law office of Chariton, Schwager & Malak.

Still Time To Register for Christmas in July With Tort Talk at the PDI's Annual Meeting at Bedford Springs

CHRISTMAS IN JULY WITH TORT TALK:

A HOLIDAY THEMED CIVIL LITIGATION UPDATE

by

Daniel E. Cummins, Esq.

Cummins Law

Clarks Summit, PA

Annual Meeting of the Pennsylvania Defense Institute

July 15-17, 2020

(Tort Talk Seminar is on July 16, 2020)

Bedford Springs Resort

Bedford Springs, PA

*   *   *

For the second year in a row, I have been requested to present a civil litigation update CLE presentation at the Annual Meeting of the Pennsylvania Defense Institute.  All of the most important cases and trends of the past year will be covered in a hopefully entertaining 90 minute presentation.

I will be assisted by Exhibit A (www.ExhibitAdigital.com) in creating the powerpoint and with the playback.  Please consider retaining Exhibit A for all your Zoom needs, video depositions, and digital presentations for trials, arbitrations, or mediations.

For information on how to register to attend the Annual Meeting of the PDI, please contact the PDI's Executive Director, Charles Wasilefski, Esq. at cwasilefski@padefense.org.  The entire conference runs from July 15-17, 2020.

Judge Mariani of Federal Middle District Court Addresses Issues Regarding Punitive Damages Discovery

In the case of Kozlowski v. JFBB Ski Areas, Inc., No. 3:18-CV 353 (M.D. Pa. May 13, 2020 Mariani J.), the court addressed issues pertaining to punitive damages discovery in a skiing accident case. 

In this Opinion, the court ruled that a Plaintiff does not have to specifically pled punitive damages in order to seek such damages. The court also note that a Plaintiff is not required to produce evidence of the Defendant’s financial condition in order to pursue the punitive damages claim. Rather, the financial condition of a Defendant is but one factor in the punitive damages analysis. 

In this matter, Judge Mariani denied the Plaintiff’s Motion to Compel the production of financial evidence as the motion was found to be untimely under the discovery schedule previously set by the court. The court found that the Plaintiff had failed to show good cause for belated financial discovery. It was emphasized that the Plaintiff had previously agreed to a trial date without any mention for the need for additional discovery. 

The court noted that reopening discovery would prejudice the Defendant, who had already filed Motions In Limine with the court for purposes of trial. 

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

Must File a Notice of Death Regarding Death of a Plaintiff During Suit To Start Time Running on Abatement

In the case of Mandarano v. Plink, No. 2018-CV-2099 (C.P. Lacka. Co. June 5, 2020 Nealon, J.), the court addressed issues pertaining to an abatement of an action in a premises liability case.

According to the Opinion, the Plaintiff instituted this premises liability action in April of 2018 and, following his death in January of 2019, the Plaintiff’s son was appointed as the Executor of his father’s estate in February of 2019. 

By January of 2020, the defense had filed a Motion for Summary Judgment asserting that the court had been divested of subject matter jurisdiction given that the action abated pursuant to an application of 20 Pa. C.S.A. §3375 and Pa. R.C.P. 2355 since the personal representative of the Plaintiff’s estate had not been substituted as the named party in the lawsuit within one (1) year of the Plaintiff’s death. 

Judge Nealon noted that §3375 and Rule 2355 provide that, if a personal representative “is not appointed” within one (1) year after the filing of a notice of suggestion of the Plaintiff’s death, the court must abate the action unless the delay in securing Letters Testamentary or Letters of Administration is reasonably explained. The court emphasized that the actual timing of the substitution of the personal representative as the named party in the lawsuit is not governed by either §3375 or Rule 2355. 

The court found that, since a notice or suggestion of death was never filed in this case, the 1-year limitation regarding the appointment of a personal representative has never commenced. Also, the court noted that the decedent’s son was, in fact, appointed as the Executor of his father’s estate a mere fifteen (15) days following the death of the original Plaintiff. 

Based upon these findings, the court found no basis upon which to abate the matter as requested by the defense. Accordingly, the Defendant’s Motion for Summary Judgment was denied. 

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

PRACTICE TIP:  File that Notice of Death, or Suggestion of Death, to start the time running on this deadline.

Jury's Verdict for Economic Damages But No Pain and Suffering Damages Allowed to Stand

In the non-precedential decision in the case of Pierchalski v. Thomas, No. 672 WDA 2019 (Pa. Super. May 26, 2020 Shogan, J., Olson, J. and Ford Elliot, P.J.E.) (Mem. Op. by Shogan, J.), the Pennsylvania Superior Court addressed an appeal in a rear-end accident case in which a jury, after a seven (7) day trial, issued a verdict in favor of the Plaintiff in the amount of only $1,455.99 in economic damages. 

The Opinion confirms that while the defense admitted fault for the subject accident, the defense asserted that the Plaintiff's alleged pain and damages were not caused by the subject accident, but rather any of the number of prior and subsequent accidents that the Plaintiff had otherwise been involved in over time.   

The jury found that the Defendant’s negligence was a factual cause of the Plaintiff’s injuries and, as noted, only awarded economic damages. However, the jury did not enter any award for past medical expenses, past or future pain and suffering, or loss of consortium. 

The Plaintiff filed an appeal raising multiple issues including whether a new trial should be ordered on the ground that the jury’s verdict was inadequate where the jury awarded economic damages that were lost allegedly as a result of the injuries alleged, and yet failed to award any non-economic damages award for pain and suffering. 

After reviewing the record before it, the Superior Court did not find that the jury’s award was contrary to the weight of the evidence or that the jury’s award shocked the judicial conscience. 

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

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

Preliminary Objections Overruled in Clergy Abuse Personal Injury Case

In the case of Patchkoski v. Diocese of Scranton, No. 2019-CV-5061 (C.P. Lacka. Co. June 12, 2020 Bisignani-Moyle, J.), the court addressed several Preliminary Objections to a personal injury Complaint arising out of claims of clergy abuse.

According to the Opinion, the Plaintiff filed the Complaint against various Defendants relative to allegations of clergy abuse within the Diocese and an “alleged cover-up” of the same by the Diocese, all of which resulted in personal injuries to the Plaintiff.

The Defendants filed various demurrers to the different claims asserted, including claims of Conspiracy, Fraud, Constructive Fraud, and for Punitive Damages. The Defendants also asserted that the Plaintiff’s claims failed due to the failure of the Plaintiff to have standing to bring the claim and due to the Plaintiff’s failure to add the Vatican as an indispensable party.

In the end, the Court denied all of the demurrers asserted and also found that the Plaintiff had standing to pursue the claim.

The Court also held that the Vatican was not an indispensable party that was required to be joined in this matter. The Court noted that, although the Plaintiff mentioned the complicity of the Vatican in the Complaint, there was no allegation that the Vatican caused the Plaintiff’s alleged injuries.

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

I send thanks to Attorney Christopher Quinn of the Kingston, PA law firm of Hourigan, Kluger & Quinn for bringing this case to my attention.

Guidelines For Re-Opening Law Firms from the New York Bar Association

Are you the kind of person who is one of the first to go out onto the empty dance floor after dinner at a wedding reception, or do you wait for others before going out there and embarassing your kids with your moves from the 80s?

In other words, are you jumping out front and re-opening your office or taking a "wait-and-see" approach and continuing to work remotely even "in the green"?

To the extent you may be venturing forward here's a LINK to report called "Guidance on Re-Opening Law Firms" from the New York Bar Association.

With No Trials On The Horizon, Here is the Perfect CLE To Consider Attending

The Wilkes-Barre Law & Library Association is hosting 

                            

A ZOOM CLE

             

 Presented By

Free For W-BLLA Members

$35.00 For Non-Members

"MEDIATION/ARBITRATION TIPS"

(The W-BLLA (#53) is now accredited as a Distance Learning Provider.)

This Program Provides 1 Hour of Substantive CLE Distance Learning Credit

Friday, July 10, 2020 -  1:00 p.m.

Created By:   Daniel E. Cummins, Esq. - Moderator and Presenter

Additional Presenters:

Judge Thomas M. Blewitt (ret.)

Richard G. Fine, Esq.

Thomas B. Helbig, Esq.

Lucille Marsh, Esq.

Judge Joseph Van Jura (ret.)

Judge Thomas I. Vanaskie (ret.)

Technology Assistance Provided by 

Advance Registration is necessary prior to that day.

        Please go to this LINK to Register for this Event.

Your Atty. I.D.# - Your Name - Title and Date of the program - And, if You are Planning to Call on a Telephone, Your Telephone #.

TWO HANDOUTS PREPARED BY ATTORNEY CUMMINS 

FOR THE PROGRAM ARE AVAILABLE FOR DOWNLOADING 

FROM THE BAR’S WEBSITE AT www.LuzerneCountyBar.com.

Minimum requirement for access to this program is a computer, laptop, ipad, cell phone or telephone.   If you plan to use your cell phone or an ipad,

you will need to download the Zoom App.

       After you Register, you will be emailed the link for the program.

All payments must be received 48 hours in advance of the program. Pay by check: Please mail a check payable to the "Wilkes-Barre Law and Library Association" to the Law Library at W-BLLA, Room 23, 200 North River Street, Wilkes-Barre, PA 18711.

If you have any questions, please call Gail Kopiak at (570)822-6712.

Claims for Treble Damages and Attorney's Fees Dismissed in PRO Case

In the case of Stoner v. Erie Ins. Exchange, No. 2019 - CV -6978 (C.P. Dauphin Co. June 11, 2020 Cherry, J.), the court granted the carrier’s motion for partial judgment on the pleadings and dismissed a Plaintiff’s claims for treble damages and attorney’s fees in a PRO case.

According to the Opinion, this matter involved a PRO case filed by a chiropractor in Dauphin County. The chiropractor sought the payment of its medical fees from this First Party carrier after the medical benefits were stopped following a peer review. The chiropractor asserted that the peer review process was improperly instituted by the carrier. The Complaint also sought attorney’s fees and treble damages. 

The carrier filed a Partial Motion for Judgment on the Pleadings seeking to dismiss the claims for attorney’s fees and treble damages. The carrier asserted that, as a matter of law, a plaintiff cannot recover treble damages or attorney’s fees based upon the carrier’s decision to implement the peer review process.

The Plaintiff claimed, in part, that such damages were recoverable because he was seeking them based upon the carrier’s conduct before the PRO referral. 

The trial court judge in this Stoner case reviewed other cases on the issues presented and, despite the fact that another judge of the same Dauphin County Bench had previously ruled differently, decided to grant the carrier’s motion and thereby dismissed the claims for treble damages and attorney’s fees.

Anyone wishing to review this decision may click this LINK

I send thanks to Attorney Candace N. Edgar of the Camp Hill, PA office of Margolis Edelstein for bringing this case to my attention.

Summary Judgment Based Upon Trivial Defect Doctrine Denied

In the case of Krieitzer v. Madison Acquisitions, LLC, No. 10767 of 2016, C.A. (C.P. Lawr. Co. April 9, 2020 Hodge, J.), the court denied a Defendant’s Motion for Summary Judgment in a trip and fall case in which the Defendants alleged that the defect to the sidewalk was a trivial defect.

According to the Opinion, the Plaintiff fell on a sidewalk located on the Defendant’s premises and allegedly sustained injuries as a result. The Plaintiff sued the Defendants maintaining that the Defendants were negligent in failing to keep the sidewalk in good repair or otherwise failing to warn business invitees of any dangerous conditions. 

The Defendants filed a Motion for Summary Judgment and asserted that the trivial defect doctrine defeated the Plaintiff’s claims. 

The court reiterated the rule of law that a sidewalk defect could be found to be so trivial that a court, as a matter of law, could hold that a property owner was not negligent in allowing its existence. However, the court stated that there was no mathematical or bright-line rule in determining whether the depth of size of a sidewalk depression resulted in liability to a property owner. 

The court noted that, generally speaking, questions as to whether a sidewalk defect was trivial and whether the Defendant was negligent in allowing for the same to exist were typically to be submitted to the jury’s consideration. 

The Opinion noted that photographs of the unevenness with the sidewalks showed a gap of approximately an inch and a half. 

The court allowed this case to proceed to a jury based upon sufficient factual issues existing in the records to preclude the entry of summary judgment. 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 26, 2020).

Another Court Rules That Gallagher v. Geico Does Not Work to Invalidate the Regular Use Exclusion

Following the steps of two recent Pennsylvania federal district court opinions, a trial court in the Northampton County has declined to extend the Pennsylvania Supreme Court's decision on the Household Exclusion in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) to apply to the validity of Regular Use Exclusions.  (The Tort Talk blog posts on those other federal court cases, Barnhart and Fong, can be viewed HERE.

In the Northampton County case of Nationwide Prop. and Cas. Ins. Co. v. Stuber, No. C-48-CV-2019-4957 (C.P. Northampt. Co. May 21, 2020 Sletvold, J.), the trial court ruled in favor of the carrier in a declaratory judgment action involving UIM coverage and the application of a Regular Use Exclusion.

According to the Opinion, the injured party was injured while operating a motorcycle upon which there was no insurance coverage whatsoever.

The injured party secured a recovery from the tortfeasor defendant's minimal coverage liability policy and then turned to pursue UIM recoveries.

At the time of the accident, the injured party owned another vehicle which was covered by a Nationwide policy that he had purchased as the named insured.  At the same time, a resident relative of the injured party owned a separate vehicle which was covered by a separate Nationwide policy.  The injured party was an insured under that second policy.  The Plaintiff was seeking UIM coverage under both of these Nationwide policies.

Both of the Nationwide policies contained Household Exclusions as well as Regular Use Exclusions.

In the case before the Court, Nationwide framed the issue as involving whether the Regular Use Exclusions precluded UIM coverage for the injured party under both policies.  Nationwide asserted that the motorcycle that the injured party was operating at the time of the accident was a vehicle that was not insured under the Nationwide policies and that was available for the regular use of the injured party such that the Regular Use Exclusion applied to preclude coverage under the facts presented.

In contrast, the injured party argued that both the Household Exclusions and the Regular Use Exclusions were invalid under the MVFRL and/or public policy arguments.  The injured party pointed to the Pennsylvania Supreme Court's previous decision in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019) for support.

After reviewing the applicable law, including recent Pennsylvania federal court decisions upholding the validity of the Regular Use Exclusion even after the Pennsylvania Supreme Court handed down its decision in Gallagher v. Geico, this court in the Stuber also upheld the validity of the Regular Use Exclusion.

Notably, the court noted that the injured party did not cite to any authority to support the extension of the Gallagher v. Geico decision to support the requested invalidation of the separate Regular Use Exclusion.  Judge Sletvold also noted that her own research failed to reveal any case law to support such an extension of the Gallagher v. Geico decision.  As such, the court found that it need not reach that issue.

Rather, the court concluded its Opinion by noting that the injured party's decision to keep his motorcycle entirely uninsured in the first instance was fatal to his claims.  As such summary judgment was entered in favor of the carrier.

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

I send thanks to Attorney John A. Anastasia of The Mayers Firm, LLC in Plymouth Meeting Pennsylvania for bringing this case to my attention.

Efforts to Use Gallagher v. GEICO Decision Against Validity of Regular Use Exclusion Meets a Dead End

In the case of Nationwide Affinity Ins. Co. of America v. Fong, No. 2:19-cv-02119-CFK (E.D. Pa. April 28, 2020 Kenney, J.), the court granted a carrier’s Motion for Summary Judgment and denied the insured’s Motion for Summary Judgment in a declaratory judgment action seeking a determination of rights and obligations under an automobile insurance policy. 

According to the Opinion, the Nationwide Insurance policy was issued to the injured party’s parents. At the time of the accident, the injured party resided with the named insureds with her husband and was included under the Nationwide policy as a “listed driver.” 

The policy also contained a regular use exclusion and a household exclusion. 

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

According to the Opinion, Allstate denied the injured daughter’s claim for UIM benefits because the daughter and her husband rejected UIM coverage under the Allstate policy. The injured daughter then turned to her parent’s Nationwide Insurance policy for UIM coverage.

Nationwide filed this Declaratory Judgment Complaint seeking a determination of its rights and obligations under the policy. 

In his Opinion, Judge Chad F. Kenney of the Eastern Federal District Court of Pennsylvania upheld Nationwide’s reliance upon the regular use exclusion. 

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

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

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

Notably, the court in this case also stated that the Pennsylvania Supreme Court’s separate decision with respect to the household exclusion in the case of Gallagher v. Geico “does not affect Williams’s precedent, as the facts of Gallagher are wholly distinguishable to the facts in the instant matter, as conceded by the Defendants.” See Op. at 10. 

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

I send thanks to Attorney John A. Anastasia of the Mayers Firm, LLC in Plymouth Meeting, Pennsylvania for bringing this case to my attention.

Gallagher v. Geico Continues to Be Troublesome

In the case of Erie Insurance Exchange v. Sutherland, No. 10437 of 2019, C.A. (C.P. Lawr. Co. May 22, 2020 Motto, P.J.), the court addressed a Motion for Judgment on the Pleadings filed on behalf of the insurance company asserting that the insured Defendants were not entitled to stacked UIM coverage under the policy for injuries sustained while the injured party was operating a motorcycle, as the injured party had waived UIM coverage on the policy that covered the motorcycle. 

According to the Opinion, the injured party was injured while operating his motorcycle which was covered under a Progressive Insurance policy. Under that policy, the injured party had waived any underinsured motorist coverages for all vehicles insured pursuant to that policy.

The injured party and his wife also maintained a separate insurance policy issued by Erie Insurance which covered two (2) SUVs that the Plaintiffs owned. Underinsured motorist coverage was purchased under that separate Erie Insurance policy.

The court noted that the injured party did not execute a waiver of stacking for the Erie Insurance policy and paid premiums consistent with obtaining stacked UIM coverage. 

The court also noted that the Erie Insurance policy contained a household exclusion. 

After the injured party requested Erie Insurance to pay UIM benefits for the injuries that he sustained in the motorcycle accident, the carrier rejected this request for coverage and referenced the application of the household exclusion. That initial denial was issued back on June 23, 2017, which was long before the 2019 Gallagher v Geico decision was handed down by the Pennsylvania Supreme Court. 

On March 27, 2019, the injured party requested Erie Insurance to reconsider its previous denial in light of the Pennsylvania Supreme Court’s decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019). Erie Insurance refused to approve the injured party’s claim as Erie took the position that the injured party was still not entitled to UIM coverage concerning the motorcycle under the facts presented. 

Thereafter, the carrier initiated this declaratory judgment action seeking enforcement of the household exclusion. The injured party counterclaimed with claims of breach of contract.

After reviewing Gallagher v. Geico decision as well as more recent decisions from the Eastern District Federal Court following the issuance of the Gallagher decision, the court in this Lawrence County case found that the Gallagher was controlling and that the Gallagher court had “clearly held [that the] household exclusions violate the MVFRL and are unenforceable.”

The court in this matter also pointed to the other more recent Eastern District Court decisions in which those courts consistently permitted the recovery of stacked UIM benefits even though a household exclusion existed on the policies at issues in those cases.

The court in this matter also felt that the facts before it were more compelling than the Eastern District case in that the injured party in this matter was a named insured on both policies (the motorcycle policy and the separate auto policies) while the other cases included stacked coverage for a mere member of the named insured’s household.

In the end, this court held that Gallagher applies if the effect of applying a household exclusion is to cause a de facto waiver of coverage, i.e. one in which the insured did not sign a waiver of stacking form, which would make the exclusion unenforceable.

The court noted that the injured party’s waiver of UIM coverage under the Progressive policy covering the motorcycle cannot be read to preclude his ability to recover under the Erie policy as the injured party paid premiums for stacked UIM coverage under the Erie policy and did not execute any waiver form relative to the Erie policy.

As such, the court in this matter denied the carrier’s Motion for Judgment on the Pleadings and allowed for stacked coverage..

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


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

Judge Gibbons Addresses Multiple Issues With Respect to Injury Sustained On Sidelines of Football Game

In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 29, 2020, Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed several different issues in a wrongful death and survival action arising from an accident that occurred during a high school football game.

According to the Opinion, a play spilled onto the sideline, as a result of which the adult Plaintiff, who was standing along the sidelines as a team statistician, was struck and caused to fall backwards and land violently on a nearby asphalt surface. The Plaintiff sustained ultimately fatal injuries.

The decedent’s estate filed suit alleging negligence in the design and construction of the high school football stadium. The Plaintiff’s also asserted claims of negligent infliction of emotional distress, wrongful death, and a survival action against multiple Defendants. The original Defendants joined in certain Additional Defendants.

The court was faced with various Preliminary Objections raised by the Defendants with respect to both the Complaint and the Joinder Complaint.

Of note, the court addressed the Defendant high school’s Preliminary Objection asserting that he Plaintiff’s Complaint should be dismissed because the Plaintiff did not provide written notice of the incident to the school district within six (6) months of the incident was required by the law for claims of against the school. The court overruled this objection since the high school admitted that, although formal notice was not provided by the Plaintiff, the school was obviously aware of, and had actual notice of, the incident giving rise to the lawsuit. As such, this case was held to fall under an exception to the six (6) month requirement under the statute since the high school had actual notice of the event.

The court also rejected the high school’s claim that the Plaintiffs’ Complaint should be dismissed under the “No Duty” doctrine given that the decedent knowingly exposed himself to foreseeable injuries which could result from standing on the sideline of a football field, a few feet from where the game was taken place.

While the court noted that the “No Duty” rule provides that a Defendant owes no duty of care to warn, protect, or ensure against risk which are “common, frequent and expected” and “inherent” in an activity, the court overruled this Preliminary Objection after concluding that the risk faced by the Plaintiff, which was the risk of death as a result of a collision with players, which caused the Plaintiff to strike his head on an asphalt curb located near the field of play, was not a risk that could be considered to be common, frequent, or expected to be inherent in the game of football.

The court also overruled the high school’s Preliminary Objection asserting that the school was immune from liability under the Political Subdivision Tort Claims Act as a local agency as defined by the act. The court stated that a Preliminary Objection is a procedurally improper effort to claim immunity as such claims must be raised under a responsive pleading as “new matter” given that immunity is an affirmative defense under Pa. R.C.P. 1030.

On yet another separate issue addressed in this Opinion, Judge Gibbons also followed the rule in Lackawanna County with respect to claims of recklessness by denying the Preliminary Objections asserted by the Defendant to such claims after finding that, under Pa. R.C.P. 1019, allegations of recklessness, as an allegation pertaining to the state of mind of the actor, can be pled generally.

The court also denied Preliminary Objections to the Plaintiffs’ claim for negligent infliction of emotional distress based upon the fact that the decedent’s son was in the audience at the football game and observed his father’s accident. The court overruled the Preliminary Objections in this regard after finding that the Plaintiff pled sufficient facts to move forward on that claim.

The court also overruled various Preliminary Objections filed by the Additional Defendants after finding that the Joinder Complaints had pled sufficient facts to support the claims of contribution and/or indemnity.

The court also rejected Preliminary Objections by one (1) Defendant who had asserted that it was entitled to have the claims against it arbitrated under an arbitration agreement entered into by that Defendant with the high school Defendant. The court overruled this position after finding that the arbitration agreement was unenforceable in this action where the underlying dispute involved several entities that were not a party to the agreement.

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


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

Encore Performance of Mediation/Arbitration Tips CLE Set for July 10th on Zoom

The recent Zoom CLE entitled "Mediation/Arbitration Tips" which SOLD OUT earlier this week in Lackawanna County is "hitting the road" and will be presented again virtually live on Zoom at the request of the Luzerne County Library Association on July 10th via Zoom:

The Wilkes-Barre Law & Library Association is hosting 

                            

A ZOOM CLE

             

 

Free For W-BLLA Members

$35.00 For Non-Members

"MEDIATION/ARBITRATION TIPS"

(The W-BLLA (#53) is now accredited as a Distance Learning Provider.)

This Program Provides 1 Hour of Substantive CLE Distance Learning Credit

Friday, July 10, 2020 -  1:00 p.m.

Created By:   Daniel E. Cummins, Esq. - Moderator and Presenter

Additional Presenters:

Judge Thomas M. Blewitt (ret.)

Richard G. Fine, Esq.

Thomas B. Helbig, Esq.

Lucille Marsh, Esq.

Judge Joseph Van Jura (ret.)

Judge Thomas I. Vanaskie (ret.)

Technology Assistance Provided by 

Advance Registration is necessary prior to that day.

Please email Gail at Gail.Kopiak@Luzernecounty.org the following:

Your Atty. I.D.# - Your Name - Title and Date of the program - And, if You are Planning to Call on a Telephone, Your Telephone #.

TWO HANDOUTS PREPARED BY ATTORNEY CUMMINS 

FOR THE PROGRAM ARE AVAILABLE FOR DOWNLOADING 

FROM THE BAR’S WEBSITE AT www.LuzerneCountyBar.com.

Minimum requirement for access to this program is a computer, laptop, ipad, cell phone or telephone.   If you plan to use your cell phone or an ipad,

you will need to download the Zoom App.

       After you Register, you will be emailed the link for the program.

All payments must be received 48 hours in advance of the program. Pay by check: Please mail a check payable to the "Wilkes-Barre Law and Library Association" to the Law Library at W-BLLA, Room 23, 200 North River Street, Wilkes-Barre, PA 18711.

Pay by credit card offline: Please email Gail at Gail.Kopiak@luzernecounty.org and she will send you an invoice from PayPal that you can pay directly. You can also come in to the Law Library and pay in person.

If you have any questions, please call Gail Kopiak at (570)822-6712.