Issues of Fact Preclude Summary Judgment on Excess Coverage Issue

In the case of Farber v. Erie Insurance Exchange, No. 19-CV-2302 (C.P. Lacka. Co. July 8, 2020 Nealon, J.), the court addressed coverage issues pertaining to whether an excess/umbrella policy was precluded by an exclusion. In the end, after finding that the insurance company had not established its position in a fashion that was free and clear from any doubt, the carrier’s Motion for Summary Judgment on the issues presented was denied. 

By way of background, a boat owner, who had been sued in a wrongful death lawsuit involving the use of his motorboat, instituted a coverage action against his excess/umbrella carrier asserting claim for breach of contract, declaratory judgment, bad faith, and violations of the Unfair Trade Practices and Consumer Protection law. 

According to the Opinion, the excess/umbrella policy contained a watercraft exclusion that provided temporary insurance coverage for watercraft “acquired during the policy period,” but that liability coverage “ceases” to exist, if notice is not given [by the insured] within thirty (30) days” of “the date of acquisition” of the watercraft.

According to the record before the court, the insured gained possession of the motorboat on August 5, 2017 and paid the seller for its purchase on August 18, 2017. 

The Commonwealth of Pennsylvania issued title to the boat in the insured’s name on September 6, 2017. 

The fatal motorboat accident occurred on September 26, 2017. 

The carrier filed a Motion for Summary Judgment arguing that the insured has “acquired” the motorboat when he took custody of it on August 5, 2017 and asserted that, as such, the excess/umbrella coverage was allegedly precluded by the watercraft exclusion since the thirty (30) day temporary coverage purportedly lapsed on September 4, 2017, which would have been several weeks before the subject incident. 

Judge Nealon noted that the carrier had drafted the policy in utilized words such as “acquired” and “acquisition,” rather than words like “possessed” or even “purchased,” in establishing the dates for commencement and cessation of temporary liability coverage for watercrafts. 

The court also noted that the terms utilized by the carrier in the policy were not defined within the policy. 

Turning to ordinary dictionary definitions of the undefined words led the court to conclude that the words used by the carrier mean gaining “ownership” or the “power of disposal” of the watercraft. 

The court also noted that the state regulations indicate that a purchaser of a boat becomes the lawful owner upon obtaining title to the boat. 

Since the court found that different interpretations of the terms at issue gave rise to an ambiguity, and since Pennsylvania law requires that all ambiguities be construed in favor of the insured, Judge Nealon found that the carrier had not established, in a fashion that was free and clear from doubt, that the carrier was entitled to judgement on the question of coverage. As such, the Motion for Summary Judgment filed by the carrier was denied. 

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

Discoverability of Documents in Medical Malpractice Case Reviewed

In the case of Telguercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. July 15, 2020 Nealon, J.), Judge Terrence R. Nealon addressed a discovery dispute in a medical malpractice case regarding two (2) event reports should be produced in discovery or are protected from discovery. 

These event reports were submitted to the court for an in-camera review. 

After reviewing the documents at issue, the court found that the documents were indeed discoverable. 

In so ruling, the court reviewed the discoverability of the documents under the Patient Safety and Quality Improvement Act as well as the Peer Review Protection Act. 

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

Jurisdictional Issue Found To Have Been Waived

In the case of Murray v. Am. LaFrance, LLC., No. 2020 Pa. Super. 149 (Pa. Super. June 25, 2020) (Op. by Bowes, J.), the Pennsylvania Superior Court that the Plaintiffs had waived the effort to establish general personal jurisdiction over a Defendant based upon the Defendant’s registration as a foreign corporation in Pennsylvania.  

The appellate Court found that the Plaintiff failed to raise the issue in response to the Defendant’s Preliminary Objections on the issues presented. 

This matter arose out of claims by the Plaintiff against a foreign corporation for negligence and strict products liability under claims that the Plaintiff suffered injuries due to excessive sound exposure from fire engine sirens that the Defendant company, which was a Delaware company, had manufactured in Illinois, which was where its principal place of business was located. 

The Defendant filed Preliminary Objections to personal jurisdiction and submitted documents to show that only four (4) of its employees resided in Pennsylvania and that only 3.5% of its total sales in 2015 were made to Pennsylvania buyers. 

The trial court had sustained the Preliminary Objections and dismissed the claim after finding that the foreign corporation’s alleged contacts with Pennsylvania were not so continuous and symptomatic to support the exercise of general personal jurisdiction. 

On appeal, the Plaintiffs argued that general personal jurisdiction over the Defendant was proper given the Defendant’s registration as a foreign corporation in Pennsylvania. However, given that the Plaintiff had failed to raise this issue at the trial court level, the Pennsylvania Superior Court affirmed the trial court’s ruling on the separate basis that the issues presented had not been preserved for appeal. 

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

Source: “Digest of Recent Cases.” Pennsylvania Law Weekly (July 6, 2020).

Pennsylvania Supreme Court To Address Whether Amazon Can Be Found Liable In Products Liability Claim

The Pennsylvania Supreme Court has agreed to accept the issue certified to its attention by the Third Circuit Court of Appeals in the case of Oberdorf v. Amazon.com, No. 41 EM 2020 (Pa. 2020) on the issue of whether Amazon may be held strictly liable in a products liability case where the product that allegedly caused the injury was never possessed or owned by Amazon.

Here is a LINK to the Pennsylvania Supreme Court's Order in which the Court stated the exact issue to be reviewed.

Source:  "Pa. Justices Agree to Take Up Amazon Products Liability Case From 3rd Circuit" by PJ D'Annunzio of The Pennsylvania Law Weekly (July 27, 2020).

UPDATE:  According to a September 23, 2020 article in the Pennsylvania Law Weekly, this case was settled and, therefore, the Pennsylvania Supreme Court would not be addressing the question presented.

SAVE THE DATE: August 21, 2020 CLE-- GOLF LESSONS: Tips for Professionalism and the Ethical Practice of Law By Daniel E. Cummins

LACKAWANNA BAR ASSOCIATION

and 

TORT TALK

Present another One Hour ZOOM CLE

Friday, August 21, 2020 at 1 pm

GOLF LESSONS:

Tips for Professionalism and the Ethical Practice of Law

(1 Ethics CLE Credit)

Presented By

Daniel E. Cummins, Esquire

Cummins Law

Free for LBA Members; Fee for Non-members: $60.00

Registrants Limited to 100 persons

Contact Kaitlin McDonough at kmcdonough@lackawannabar.org to register whether you are a member or a non-member. 

Payment by non-members due on registration.  After contacting Kaitlin McDonough to register, Non-members are requested to go to www.lackawannabar.org and clicking on the “Payments” button at the top of the website.

Technical Support Provided by:

CLE SPONSORED BY:

Issues of Private Nuisance and Public Nuisance Re: Landfill Reviewed

In the case of Baptiste v. Bethlehem Landfill Company, No. 19-1692 (3d Cir. July 13, 2020 Restrepo, J., Roth, J., and Fisher, J.), the court addressed a landfill Defendant’s Motion to Dismiss.

According to the Opinion, the Plaintiffs brought an action against the Bethlehem Landfill Company on behalf of a class of homeowners and renters claiming interference with the use and enjoyment of their homes and a loss in property value caused by the noxious odors and other air contaminants emanating from the landfill. The Plaintiffs brought these claims under three (3) state-law tort theories, that being public nuisance, private nuisance, and negligence. 

The lower court had granted the landfill company’s Motion to Dismiss after finding that too many residents were similarly affected to sustain a private claim for public nuisance, that the odors affected too many people and the landfill was too far away from them to constitute a private nuisance and that the Plaintiffs had failed to identify a duty of care to maintain a negligence claim. 

On appeal, the Third Circuit disagreed and therefore reversed and remanded. The court’s 31 page Opinion makes for an interesting read. 

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

I send thanks to Attorney John P. Finnerty of the Moosic, Pennsylvania offices of Dougherty, Leventhal & Price law firm for bringing this case to my attention

Allegations of Recklessness Stricken Where No Outrageous Facts Alleged

In the case of Farina v. Emerson, No. 6901-CV-2019 (C.P. Monroe Co. April 27, 2020 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas continued the trend of decisions in that county of dismissing claims of recklessness where the same were not supported by the same types of outrageous facts that would support a punitive damages claim. 

According to the Opinion, the case arose out of a dog bite incident. 

The defense filed Preliminary Objections in the nature of a demurrer against the Plaintiff’s complaints of recklessness. The defense argued that the Plaintiff did not allege any facts to support a recovery for punitive damages. 

The court agreed and noted that punitive damages are penal in nature and proper only in cases where the Defendant’s actions were so outrageous as to demonstrate willful, wanton, or reckless conduct. The court noted that a defendant can only be hit with punitive damages where a defendant is found to have acted in an outrageous fashion due to either evil motive or reckless indifference to the rights of others. 

In reviewing the Plaintiff’s Complaint, the court found that the factual allegations were sparse and did not amount to outrageous facts that would support a claim of recklessness. Rather, the court noted that the Complaint did not contain any facts to elevate her claims above claims of ordinary negligence. As such, the Defendant’s Preliminary Objections were sustained. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 30, 2020).

There continues to be a split of authority on this issue, with some trial courts requiring that outrageous facts be pled to support claims of recklessness, and other trial courts holding that claims of recklessness can be pled in any case whatsoever regardless of the facts.

To view other Tort Talk posts on recklessness cases, please go to TortTalk.com, scroll all the way down the right hand colum of the blog until you get to the "Labels," and, under that section go down in alphabetical order and click on the Label for "Allegations of Recklessness."

Judge Legg of Susquehanna Requires Sufficient Facts Before Recklessness Claim Can Proceed

In the case of Dayton v. Estate of Scully, No. 2019-646 C.P. (C.P. Susq. Co. July 14, 2020 Legg, J.), President Judge Jason J. Legg of the Susquehanna County Court of Common Pleas addressed Preliminary Objections filed by a Defendant in a motor vehicle accident case against allegations of recklessness and with respect to the negligent entrustment claims. 

The court came down with the line of cases holding that, in order for a Plaintiff to pursue a claim of recklessness, outrageous facts sufficient to support a punitive damages claim must be pled in the Complaint. Given that this matter involved a standard motor vehicle accident with no outrageous facts, the court struck the claims for punitive damages and/or recklessness.

Judge Legg also granted the Preliminary Objections filed against the Plaintiff’s claim for negligent entrustment. 

In this regard, the Plaintiff had alleged that the Defendant owner allegedly allowed an uninsured driver to operate a motor vehicle and were, therefore, negligent in failing to have adequate insurance coverage on the vehicle. At the argument, the Plaintiffs conceded that the vehicle was not uninsured, but rather, allegedly underinsured. 

The court noted that allowing a Defendant driver to drive a motor vehicle knowing that it was insured for up to $25,000.00 in property damages did not equate to knowledge that the Defendant driver would drive the vehicle in such a manner as to likely create an unreasonable risk of harm to others. Given that there was no valid negligent entrustment claim pled in the Complaint, the court granted this Preliminary Objection as well. 

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

The prevailing defense attorney was Stephen T. Kopko, Esquire of Cummins Law in Clarks Summit, PA.

Theory of "Wave-on Liability" in Car Accident Case Allowed to Proceed to Jury

In the case of McLaughlin v. Caban, No. 2017-CV-5303 (C.P. Lacka. Co. June 24, 2020 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by a Defendant driver in a motor vehicle accident case in which the Defendant driver asserted that there was no causal connection between her actions and the subject accident based upon this Defendant allegedly waved to the Plaintiff to proceed out of a parking lot at which point there was an accident between the Plaintiff's vehicle and a third vehicle. 

The court noted that the Plaintiff’s claim against the Defendant filing the Motion for Summary Judgment was based on a theory of “wave-on liability.” The Plaintiff alleged that the waving Defendant’s negligence included failing to confirm that the roadway was clear before indicating to the Plaintiff to proceed, failing to warn the Plaintiff of any oncoming traffic, and improperly waving another driver to proceed into the roadway when it was not safe to proceed. 

The Defendant who waved the Plaintiff to proceed filed a Motion for Summary Judgment arguing that the Plaintiff’s theory of liability failed because the Plaintiff’s deposition testimony confirmed that the Plaintiff interpreted the Defendant’s wave to mean only that the Defendant who waved would stop to allow the Plaintiff to proceed out of the parking lot and did not signify anything else. In other words, the Defendant who waved asserted in the motion that the Plaintiff never relied upon the Defendant’s waving as an indication that no other traffic was approaching. 

Judge Gibbons reviewed the law in Pennsylvania on the liability of a signaling motorist under §324A of the Restatement (Second) of Torts (1965) and the case law thereunder. That section of the Restatement is entitled “Liability to Third Person for Negligent Performance of Undertaking” basically holds that one who assumes the act, even gratuitously, may thereby become subject to the duty of acting carefully. 

The court noted the central issue in this context is for the jury to determine the meaning of the signal in question. The court noted that it is the duty of the jury to determine if the signally driver’s action was something other than a mere courtesy or a yielding of the right-of-way based upon the facts alleged. Where issues in this regard are in dispute, the case must be left for the juror’s consideration. 

Judge Gibbons also noted that a court could find that a causal connection between the signal and the injury does not exist at the summary judgment stage only where it is clearly and unequivocally stated that the Defendant waver’s signal was interpreted only to mean that that Defendant would remain stopped so that the other driver could proceed and that the Plaintiff never relied upon the signal as an indication that no other traffic was approaching. 

Here, the court reviewed the testimony of the parties and found that issues of fact remained on the questions presented. As such, the court denied the Motion for Summary Judgment and allowed the issue to proceed to trial. 

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

ARTICLE: "Split of Authority Dominates Issue of Proper Claims of Recklessness"

The below article of mine appeared in the Pennsylvania Law Weekly online on July 9, 2020 and in print on July 14, 2020 and is reprinted here with permission.

Split of Authority Dominates Issue of Proper Claims of Recklessness

By Daniel E. Cummins | July 09, 2020

Daniel E. Cummins of Cummins Law.

A recent trend in Pennsylvania civil litigation matters involves the inclusion of claims of recklessness by plaintiffs in all types of cases and regardless of the facts presented.

The trend has risen to the level such that one of the first things any attentive insurance defense attorney does with every new assignment to defend is to review the complaint to determine whether claims of recklessness are included in the complaint. This increasing trend of plaintiffs including claims of recklessness in personal injury complaints has resulted in more and more preliminary objections being filed. The trial court decisions that have come down on these preliminary objections has led to a split of authority on the propriety of recklessness claims under Pennsylvania law.

Recklessness Has Its Place

There is no question that the law allows for claims of recklessness to be included in complaints for cases involving outrageous facts that would also support a claim for punitive damages. For example, claims of recklessness are routinely upheld in cases involving accidents and injuries arising resulting from tortfeasors driving under the influence, tractor trailer drivers driving in a distracted fashion or with respect to dog owners who own dogs who have bitten before.

Issues with respect to claims of recklessness arise when a plaintiff casually include such claims in seemingly form complaints filed after run-of-the-mill motor vehicle accidents or a routine trip-and-fall matter having no outrageous facts or egregious conduct.

The danger of allowing claims for recklessness to remain in a Complaint for the defense is that it opens the door for the Plaintiff to later add or pursue punitive damages which would not be covered by a Defendant’s insurance. To not challenge such improper claims could subject the tortfeasor to personal financial exposure and the defense attorney to a malpractice claim.

As such, most defense counsel will approach plaintiffs counsel seeking a stipulation on the withdrawal of claims of recklessness with the plaintiff reserving the right to file a motion to reinstate the claims if discovery later reveals facts to support the claims. Most plaintiffs attorneys will agree to the stipulation to avoid the delays attendant with fighting preliminary objections.

Where a stipulation can not be reached, preliminary objections will be typically filed which has given rise to the split of authority on the issue that currently exists in Pennsylvania. The two lines of court decisions are reviewed below.

One Line: Claim of Recklessness Must Be Supported by Outrageous Facts

Under one line of cases, the trial courts of Pennsylvania have held that claims of recklessness should be routinely dismissed in cases where the facts only support a claim of negligence and do not rise to the level of outrageous necessary to support a claim for punitive damages.

In a decision handed down just recently on June 26, Judge David J. Williamson of the Monroe County Common Pleas Court confirmed in the case of Farina v. Emerson, PICS Case No. 20-0563, that a claim of recklessness cannot proceed unless it is supported by facts alleging outrageous conduct on the part of a defendant. In Farina, the court found that a plaintiff failed to allege sufficient facts to support a claim of recklessness to proceed against a dog owner in a dog bite case. As such, that claim was summarily dismissed as improper.

Williams previously ruled in a similar fashion in his prior decision in the case of Vella v. Henderson, No. 873-CV-2019 (C.P. Monroe Co. 2019), in which he granted a defendant’s preliminary objections in part, with respect to the plaintiff’s claims of recklessness in a standard rear-end motor vehicle accident. The court granted these preliminary objections after finding that the complaint filed by the plaintiff did not contain any actual allegations to support any claims that the defendant either purposefully caused the accident or willfully ignored the likelihood of a substantial risk in this rear-end accident case.

Rather, the plaintiff had simply alleged that the defendant operated a motor vehicle at a high rate of speed, failed to reduce his speed to avoid a collision, failed to maintain a proper lookout, failed to maintain a safe distance, and failed to otherwise use due care in the operation of his vehicle. Williamson found that these types of allegations amounted to nothing more than claims of negligence. As such, the court ordered that the recklessness language in the complaint be stricken.

Along the same lines, Judge Jennifer R. Slevtold of the Northampton County Common Pleas Court also sustained preliminary objections filed by a defendant in the motor vehicle accident in the case of Wasilow v. Allen, No. C-48-CV-2016-00633 (C.P. North. Co. 2016).

In Wasilow, the plaintiff generally alleged that the collision occurred as a result of the defendant’s carelessness, negligence and recklessness. The plaintiff more specifically alleged that the defendant failed to have his vehicle under proper control, failed to observe other vehicles on the road, failed to keep a reasonable lookout, failed to operate his vehicle in accordance with traffic conditions and that the defendant was operating his vehicle closer than was reasonable under the circumstances involved in this rear-end accident matter.

The court found that these types of allegations did not rise to the level of recklessness or support any claim for punitive damages. As such, the defendant’s preliminary objections were sustained and the plaintiff’s allegations of recklessness, reckless conduct, as well as the plaintiff’s request for punitive damages, were all stricken from the complaint.

In another decision out of Northampton County, Judge Anthony S. Beltrami, also sustained preliminary objections by the defendant in the standard motor vehicle accident case of Roma v. Finney, PICS Case No. 15-0641 (C.P. North. Co. 2015). In Roma, the plaintiff alleged negligence and recklessness on the part of the defendant in this rear-end motor vehicle accident case. Notably, the plaintiff did not also include a request for punitive damages in the complaint.

The court in Roma ruled that, as there were no facts pleaded in the complaint to support claims of recklessness and given that no claim for punitive damages was asserted, the preliminary objections were granted. The court further found that the allegations of recklessness were deemed to be immaterial to proving a cause of action of negligence.

The decisions in this line of cases therefore impose a requirement that any claim of recklessness must be supported by appropriate facts alleged in the complaint or risk being stricken or dismissed.

Second Line: Claims of Recklessness Are Allowed in Every Case

A second line of more liberal Pennsylvania trial courts have instead chosen to follow the Pennsylvania Superior Court’s decision in the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010) to support the notion that “recklessness” is a state of mind that can be generally pleaded in any complaint whatsoever regardless of the facts presented.

Notably, the Archibald case did not come before the Pennsylvania Superior Court on any pleadings issues; rather, at issue was a resolution of summary judgment issues in a personal injury case, including the general question of whether recklessness is a type of a standard of care relative to a claim of negligence. As such, any comments by the Archibald court on the more specific issue of properly pleading recklessness in a complaint were arguably dicta.

Also, at the outset of its opinion, the court in Archibald emphasized that the “crux” of its decision was on “the standard of care to be applied” under the facts of that personal injury case, i.e., not on any pleadings issues. The Archibald court went onto deny the summary judgment motion and, in so ruling, noted that its decision on the issue of the standard of care for recklessness should not be read to allow a claim of recklessness to rise to the level of a separate tort that must be pleaded within the applicable statute of limitations.

The Superior Court in Archibald further commented that, under Pa. R.C.P. 1019(b), “an example of a condition of the mind that may be averred generally is ‘wanton conduct’ and that “because recklessness is also known as ‘wanton and willful misconduct,’ ‘recklessness’ is a condition of the mind that may be averred generally.” Those trial courts in the second line of cases that have relied upon this language in Archibald to rule that recklessness can be pleaded in any case whatsoever regardless of the facts. See Wolff v. Taylor, No. 19-CV-4988 (C.P. Lacka. Co. 2020 Nealon, J.).

In Wolff, the plaintiff’s claims of recklessness were allowed to proceed beyond the pleadings stage based upon allegations that the defendant-driver ran a red light and failed to keep a proper lookout at the time the collision occurred. The court did note that the defense retained the right to revisit the issue at the conclusion of discovery by way of a motion for summary judgment.

Judge James A. Gibbons, also of the Lackawanna County Common Pleas Court, followed this reasoning in his own decision in the case of Nebesky v. Pagnotti, No. 2019-CV-3170 (C.P. Lacka. Co. 2019). In Nebesky, Gibbons denied a defendant’s preliminary objections filed against recklessness allegations in this regard in a case involving a standard motor vehicle accident involving a pedestrian plaintiff. Similar to Nealon, Gibbons also noted that a defendant retained the right to revisit the validity of the claims of recklessness by way of a motion for summary judgment once discovery had been completed.

Proving how troublesome this issue of pleading is, not only is there a split of authority across the commonwealth on this issue, but there is even also a split of authority on the issue within the Northampton County Common Pleas Court. Despite the two above-referenced decisions out of Northampton County rejecting claims of recklessness in the absence of facts to support the same, Judge Samuel P. Murray of the same court allowed such claims of recklessness to proceed in the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. North. Co. 2020).

In that Speight, Murray followed those cases that rely upon the Pennsylvania Superior Court decision in Archbald under the rationale supported by Pa. R.C.P. 1019(b). In allowing the claims of recklessness to proceed as a generally allowed pleading, the court in this matter also emphasized that the plaintiff had not asserted any claim for punitive damages in the complaint. See also Doyle v. Dianna, No. C-48-CV-2013-810 (C.P. North. Co. 2013 Baratta, J.).

How Will a Particular Court Rule?

When a defendant files preliminary objections to allegations of recklessness, a demurrer is typically asserted. In this regard, the defense argues that the complaint does not contain sufficient facts to support a claim of recklessness. The issue comes down to whether the trial court will review the complaint to see if there are sufficient outrageous facts pleaded in the complaint to support the claim, or will the trial court simply decide that claims of recklessness can be pleaded in any case regardless of the facts alleged.

While appellate guidance would prove helpful on this issue, such guidance may be hard to come by. It does not appear that this issue from the context of the pleadings stage of the case is not immediately appealable. As such, it may be some time before the appellate courts will have an opportunity to address this issue and settle it once and for all. In the meantime, the issue of a proper pleading of recklessness may depend on what county court the issue is raised and, in some counties, may be dependent upon which particular trial court judge will decide the question.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters as well as premises liability and products liability cases. Contact him at dancummins@cumminslaw.net.

Still Time to Register for the Lackawanna Pro Bono Golf Tournament

Pennsylvania Supreme Court Denies Appeal in Case Raising Important Unsettled UM/UIM Issues

In a decision handed down yesterday the Pennsylvania Supreme Court issued a one-line Order denying a petition for allowance of appeal filed by an insurance company from the Superior Court’s decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), which involved important unsettled issues, including both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania Supreme Court's eradication of the household exclusion in the Gallagher v. GEICO decision.

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

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings. As noted, the Pennsylvania Supreme Court has declined to review the issue further.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure a new waiver of stacking form from the insured. 

Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

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

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

Here is a LINK to the Tort Talk post on the Superior Court's decision in Kline, which post contains a Link to the Superior Court's decision.


In its one line Order denying the right to appeal, the Pennsylvania Supreme Court did not offer any explanation as to why it was declining to review these important issues that continue to cause differing decisions in the lower state and federal courts.

Anyone wishing to review this Order may click this LINK.

I send thanks to Attorney Scott Cooper for bringing this case to my attention.

Import of Gallagher v. Geico Household Exclusion Decision Reviewed by Eastern Federal District Court

In the case of LM Gen. Ins. Co. v. LeBrum, No. 19-2144-KSM (E.D. Pa. July 1, 2020 Marston, J.) (Mem. Op.), the court addressed a declaratory judgment issue pertaining to whether the injured Plaintiff’s claims for UIM benefits were barred by a household exclusion and whether the Plaintiffs were entitled to stacked coverage.

The issue came before the court on the insurance company’s Motion to Dismiss the counterclaims asserted by the injured party Plaintiffs. The carrier asserted that the household exclusion barred the injured parties from receiving UIM benefits and also that the injured parties were not entitled to stacked coverage because the injured party had signed the statutorily mandated waiver form. 

The court granted the motion in part and denied it in part. 

According to the Opinion, the injured party Plaintiff was injured while riding a motorcycle. At the time of the accident, the injured party had two (2) insurance policies, one was a motorcycle policy issued by State Farm and the other was a personal automobile insurance policy issued by LM General. The LM General policy did not cover the motorcycle. 

The Plaintiff recovered the policy limits from the tortfeasor’s liability policy as well as the UIM coverage under the State Farm motorcycle policy. The Plaintiff then filed a claim for additional UIM coverage under the separate policy issued by LM General which covered the Plaintiff’s vehicle. The carrier responded by citing to the household exclusion in the policy, which excluded UIM coverage for bodily injury suffered by an insured when using or being struck by a vehicle owned by a member of the household, which vehicle was not covered under the LM General policy. 

The insurance company also asserted that the injured party was not entitled to stacked coverage given that the injured party’s wife had executed the rejection form when the policy was purchased from LM General. It was noted that the injured parties also signed a form indicating that their selection would apply throughout this policy period, regardless of the replacement or addition of new vehicles to the policies. 

According to the record, the injured parties had added a vehicle a few years after securing a policy from LM General. Also, although the insurance company generated an amended declarations page, it did not have the injured parties sign a new stacking waiver. 

On the issue of the manner in which the injured party’s new vehicle was added to the policy, the court declined to decide any issues in that regard at this Motion to Dismiss stage. The court noted that issues in that respect were typically decided at the summary judgment stage. 

The court also held that the issue of whether the injured party had effectively waived inter-policy stacking should also be decided after further discovery and under a possible Motion for Summary Judgment. 

The court in this case additionally noted that the Pennsylvania courts have held that the household exclusion provision could not be used to serve as a de facto waiver of UM/UIM coverage. The court in this case reviewed a number of trial court decisions indicating that the Gallagher v. Geico decision by the Pennsylvania Superior Court should be viewed broadly as well as those other decisions that have indicated that the Gallagher v. Geico decision should be interpreted narrowly. 

The court in this case indicated that, at the Motion to Dismiss stage, it was not inclined to interpret Gallagher’s holding narrowly. The court invited the parties to brief the issue again at the summary judgment stage after discovery has been completed. 

In so ruling, the court in this case did indicate that the Gallagher decision could be applied retroactively.  

With regards to a statute of limitations defense asserted by the carrier on the Gallagher v. Geico issue, the court agreed that a four (4) year statute of limitations would apply on any retroactive claims. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 14, 2020).

Propriety of Requests for Admissions Reviewed

In the case of Schryver v. Twp of Smithfield, No. 2933-CV-2018 (C.P. Monroe Co. May 21, 2020 Higgins, J.), the court addressed a Defendant’s objections to Requests for Admissions served by a Plaintiff in a negligence action in which the Plaintiff alleged that the Defendant caused damages to the Plaintiffs by allowing storm water to flow onto the Plaintiffs’ property. 

The Defendant initially objected to the Plaintiff’s Requests for Admissions as being too many in number given that the Plaintiff had served 200 such requests. The court rejected this argument as there is no legal authority to support this argument.

However, the court did strike some duplicative Requests for Admissions. 

The court also accepted the defense argument that some of the other Requests for Admissions were objectionable in that they called for legal conclusions in violation of Pennsylvania law, including the case of Brindley v. Woodland Village Restaurant, Inc., 652 A.2d 865, 871 (Pa. Super. 1995). 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 7, 2020).

Med Mal Case Dismissed As a Discovery Sanction

In the case of Flanigan v. The Ellwood City Hosp., No. 30007 of 2017 (C.P. Lawr. Co. April 6, 2020 Cox, J.), the court dismissed a medical malpractice case as a sanction due to the Plaintiff's failure to abide by the discovery Orders of Court.

According to the Opinion, the Plaintiff sue medical defendants relative to treatment rendered to the Plaintiff's foot.  After the Plaintiff's attorney withdrew and the Plaintiff had difficulty finding a new attorney, the Plaintiff elected to proceed with the matter on a pro se basis.

When the Plaintiff failed to fully respond to interrogatories and requests for production of documents, the Defendants filed a motion to compel.  The Court was not satisfied with the Plaintiff's responses that the information requested could be found in the medical records, particularly where the Plaintiff failed to provide copies of the records or sign authorizations.

At a later motion for sanctions hearing, the Plaintiff agreed to produce signed authorizations within 24 hours.  However, the Plaintiff then sent back 27 unsigned authorizations and, thereafter, continued to refuse to sign them.

The court review the law pertaining to dismissals of actions under Pa.R.C.P. 4019 for discovery violations.  After applying the law to the facts of this matter, and noting the prejudice resulting to the defense in the inability to move the matter forward, the Court granted the requested discovery sanction of a dismissal of the matter.  The court noted that a dismissal with prejudice was the appropriate remedy where the Plaintiff steadfastly refused to provide discovery and repeatedly refused to abide by the Court's discovery Orders.

Anyone wishing to review this decision may click this LINK.

Source:  "Digests of Recent Opinions," Pennsylvania Law Weekly (June 23, 2020)

Please Sign Up for Lackawanna Pro Bono's CLE and/or Golf Tournament Set for August 3, 2020

Presented a CLE at the PDI's Annual Meeting for the Second Year in a Row

Yesterday, I pressented my Christmas in July With Tort Talk CLE seminar, which was a Holiday Themed Civil Litigation Update, at the Pennsylvania Defense Institute's Annual Meeting at the Bedford Springs Resort, in Bedford Springs, PA.

When I arrived at the resort late on Wednesday, Governor Wolf was on the TV advising as to the additional restrictions that were being mandated, one of which prevented any gatherings of more than 25 people in any room.  

As such, the CLEs for the PDI's Annual Meeting were moved outside to a lawn area of the Bedford Springs Resort and I had the opportunity to present my first ever outdoor CLE.  The sun affected the ability to see the video clips in my presentation, and a momentary rider mower went by for a bit, but other than that, it worked out pretty well. 

Link to Mid-Year Tort Talk Civil Litigation Update Booklet Compliments of Tort Talk

PRESENTING TODAY!

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 16, 2020

Bedford Springs Resort

Bedford Springs, PA

*   *   *

Here is a LINK to the 80 paged Civil Litigation Update booklet compliments of Tort Talk.

I will be assisted in this presenttion 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.

PLEASE CONSIDER CUMMINS MEDIATION SERVICES FOR YOUR NEXT MEDIATION

"Bring your case to a close."

Contact DAN CUMMINS AT(570) 319-5899 or at dancummins@CumminsLaw.net.

Consider Cummins Mediation Services To Help Bring Your Case to a Close

Need help bringing your case to a close?  Please consider Cummins Mediation Services.  

Resume and Fee schedule available on request.

Please contact me at dancummins@CumminsLaw.net or at 570-319-5899 to set up your Mediation.

Please consider joining those numerous firms and attorneys who have had success settling cases with CUMMINS MEDIATION SERVICES.  Call Dan Cummins at 570-319-5899 today to schedule your next Mediation.  Thank you.

Witness Allowed to Have Service Dog Nearby While on Witness Stand

Every once and a while, a criminal court decision is handed down that could some day have impact in a civil litigation matter.

In the case of Commonwealth v. Purnell, 2020 Pa. Super 127 (Pa. Super. May 28, 2020), the Pennsylvania Superior Court ruled that the trial court did not err in allowing a comfort dog to be seated near an autistic witness at trial, even if the dog was up at the witness stand.

The court ruled that neither necessity nor need was required to allow for the presence of the dog in the courtroom, provided that it was established to the court that the animal would alleviate the stress that the witness may experience on the witness stand and would help the witness to testify truthfully and completely.

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

Source: “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (June 29, 2020).

Interesting Thoughts by Judge Richard B. Klein (ret.) On Trials in the Post-Covid-19 World

The Post-Coronavirus World - Virtual or Not There Will Be Problems by  Richard B. Klein (ret.) July 7, 2020 (Reprinted here with permission) Everybody has been talking about problems doing jury trials “virtually.” Grudgingly lawyers are coming around to the belief that online mediations and even online arbitrations actually work. Some actually think they are preferable. But most lawyers still are reluctant to consider online jury trials. However, even if the courts open up and criminal jury trials don’t bump civil jury trials, there will be problems. A June 11 article in the New York Times entitled “Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic” reviewed some of the post-coronavirus jury trials. However, even if some “demonstration” jury trials work, I have doubts of anything on the scale needed would work. I’m involved in a national effort called the Online Courtroom Project, analyzing how online trials could (or could not) work. One of its members, Colorado trial consultant Lisa DeCaro of Courtroom Performance, Inc., raised a number of problems now trying to do things the old way without online trials.  There will be pressures from judges anxious to move the dockets to force truncated trials that might result and bias and will outlast the pandemic. Some judges will tell lawyers they have a choice between waiting three to five years for their trial or reducing the number of jurors and the number of preemptory challenges. No matter what precautions are taken, people over 65 years old and even under 65 will not want to sit in a courtroom (or jury room) for hours at a time – social distancing or not, masks or not. If people ducked jury duty before the virus, just wait until the next batch of summons go out. The Times reported that some states said people “at risk” – over 65 – can be excused. The reports generally are that even where only half those subpoenaed show up, now only 25%. And very few African-Americans or Latinos. It is inevitable that some changes will be made in face of the pandemic. And the changes are likely to hang around long after the pandemic has ended. Jurors themselves will probably have different attitudes. It is hard to figure what the reactions will be. Communication expert Glen G. Kuper, Jr., Ph.D., listed a number of them in his “Advantage” blog. [https://tsongas.com/blog-posts/preparing-trial-after-covid-19/]. I’m not sure whether or not they are right, but they do provide food for thought. Jurors will be impatient since they lost so much time at work. Jurors generally are turned off when lawyers go on and on. Kuper thinks it will be worse after the lockdown time. But in any event it is important for lawyers to get to the point quickly. Less sympathy for an economic loss. Many jurors may have suffered a significant loss of income in the shutdown. They may be less sympathetic to plaintiffs who only lost a few months of wages. Skeptical views of medical damages. Jurors probably know people who have died of the virus or who were very sick for a significant period of time. Particularly when the juror or a friend or family member was sick and they did not get compensated, they may be hesitant to compensate others. Different views of medical experts. Dr. Kuper thinks there will be different reactions to medical experts. Some jurors may think be more skeptical of experts. They will remember that the experts kept waffling on the virus. (For example, first they said don’t wear masks, then they said wear masks.) Also, some think the experts overstated the effects of the virus. Others may think the scientists were the only ones who made sense and the politicians were the ones without credibility. Either way, these reactions need to be explored in voir dire.Most of the plans to restore civil juries involve reconfiguring courtrooms. How does the lawyer communicate with jurors that are scattered six feet apart and may even be behind the lawyers? How does anyone judge credibility with someone talking through a mask? The Times reported that in one case, a juror was reported to have tested positive for the virus, and in another, the prosecutor had a positive test. What happens next? Do you go with alternate jurors or scrap the trial since others have been exposed? Urban jurisdictions are suffering huge declines in tax revenues. This has been compounded by the protests and subsequent vandalism and looting, not only adding to the lost revenue, but requiring large expenditures for police overtime and helping business recover. Many of the needed changes for the court system will be expensive. It took eight rooms to house one trial. The Times reports court administrators are trying to figure out how many people a jury box can hold, how to get jurors and others up and down on elevators that only will only take a few people at a time, where to install plexiglass barriers, how lawyers can talk to their clients six feet apart, what to do about masks, etc.. Between trying to close budget deficits and providing funding in response to the complaints of bad policing, where will court renovations cone in on the priority list? Certainly online trials are not a good alternative to our “traditional” trials. But our “traditional” trials well may be years away. The Times considered a criminal trial in Portland, Oregon, to have gone well. But the defense counsel said, “As smooth as this went, at no point would I ever advise a client to go through with it in these times.” So online trials (and online mediations and arbitrations) should not be considered as an alternative to the “traditional” trials but as an alternative to trials in the new normal, whatever that will look like. Many people are making predictions as to what civil trials will look like a year from now. Most of them are wrong. The only prediction I will confidently make is that things will be different, and no matter which way things go, there will be lots of problems.

Jury Trial Completed in California With Virus-Related Safeguards in Place

Here is a LINK to an article from the website Law 360 written by Y. Peter Kang and entitled "Calif. Jury Reconvenes to Award $10.5M in Virus-Delayed Trial. 

According to the article, the trial started before the pandemic and was then recently convened and tried to verdict.  

The jury was given the option to use masks or face shields.  Some jurors were in the box and some were spread out into the gallery.  The number of spectators for each side was very limited.  The attorneys wore face shields.

The jury's deliberations took place in the courtroom itself.

Interesting.

Motion To Bifurcate Trial Denied in Federal Middle District Court

In the case of Cleveland Brothers Equipment Co., Inc. v. Vorobey, No. 4:19-CV-01708 (M.D. Pa. June 23, 2020 Brann, J.) (Mem. Op.), Judge Matthew W. Brann denied a Plaintiff’s Motion to Bifurcate a trucking accident litigation with respect to the issues of liability and damages.

This matter actually involves a contribution action filed by the Plaintiff trucking company against Co-Defendants after the underlying personal injury cases were resolved.  The trucking company was a defendant in the underlying matter, which was settled, and then began this contribution action against a co-defendant.

In addressing the Motion to Bifurcate, Judge Brann noted that, under Federal Rule of Civil Procedure 42(b), a federal district court is permitted to order the bifurcation of trials for convenience, to avoid prejudice, or in the interests of judicial economy. 

Applying his broad discretion, Judge Brann denied the Motion to Bifurcate after finding that judicial economy would be served by keeping the cases together. 

In so ruling, Judge Brann noted that the Third Circuit has held that “separation of issues for trial is not to be routinely ordered.” See Op. at 2. 

Also, as a side note with respect to this decision is that the court used footnotes for all of its case citations as well as for some commentary. Here is to hoping that this does not become the norm in terms of Opinions as it is tedious to go from the body of the Opinion to look down at the citation and come back up to continue to reading the Opinion. I realize that others may prefer the perhaps more fluid reading of an Opinion when the case citations are instead put in footnotes.


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

A Successful Encore Presentation of the "Mediation/Arbitration Tips" Zoom CLE -- Would You Like Us To Present it to Your Group?

Another successful presentation of the "Mediation/Arbitration Tips" CLE via Zoom created by Daniel E. Cummins of Cummins Law and Cummins Mediation Services took place on Friday, July 10, 2020 for the benefit of the Luzerne County Bar Association.  

There were over 100 registrants in attendence for the seminar, which provided the audience with tips on how to improve one's chances for success at Mediations or Arbitrations.  I send thanks to all who attended the program.

The program received enthusiastically postive reviews following the program including comments such as "FABULOUS job!," "Truly awesome," and "You knocked this CLE out of the Park!"

The CLE Program and Powerpoint content was created by Daniel E. Cummins of Cummins Law, who provides mediation services through Cummins Mediation Services.  Attorney Cummins served as a moderator and presenter during the one hour program, which included the additional presenters of Judge Thomas Blewitt (ret.), Richard G. Fine, Esq., Thomas B. Helbig, Esq., Lucille Marsh, Esq., Judge Joseph Van Jura (ret.), and Judge Thomas I. Vanaskie (ret.), all of whom brought their ADR expertise to the program and offered additional excellent tips for improved appearances by litigators at both mediations and arbitrtations.

Excellent technical, digital, and video assistance was provided by JP Cardoni of Exhibit A.

Anyone wishing to have this CLE presented to your group or Bar Association via Zoom in a one hour or 1.5 hour format may contact Dan Cummins at dancummins@CumminsLaw.net to arrange for the same.


Also, anyone hoping to bring their case to a close via a Mediation may please contact Attorney Dan Cummins at Cummins Mediation Services to schedule a Mediation.  Dates are available for August and September but are filling up fast! 

Contact Dan Cummins at 570-319-5899 or at dancummins@CumminsLaw.net to bring your case to a close.  Fee schedule and resume available upon request.

Links To Written Materials for Today's MEDIATION/ARBITRATION TIPS CLE

Presenting the below CLE Seminar today.  To access the written materials for the event (two articles on tips to improve your chances for success at ADR proceedings written by Daniel E. Cummins), please click HERE and HERE.

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.

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

Dates Open To Schedule a Mediation with CUMMINS MEDIATION SERVICES

Need help bringing your case to a close?  Please consider Cummins Mediation Services.  

Resume and Fee schedule available on request.

Please contact me at dancummins@CumminsLaw.net or at 570-319-5899 to set up your Mediation.

Here is an Alphabetical List of just some of the  Firms that have retained Cummins Mediation Services to help them bring their case(s) to a close, along with attorneys in those firms you could contact for a reference regarding their experience with a Cummins Mediation Service proceeding:

Abrahamsen, Conaboy & Abrahamsen

  

Blake & Walsh

  

Cefalo & Associates

    

Cipriani & Werner

   

Caputo & Marriotti

    

Fisher & Fisher

The Foley Law Firm

    

Germain Law Offices

  

Haggerty, Hinton & Cosgrove

   

Law Offices of Leo P. Jackson

   

Kilpatrick, Hughes & Mashinski

    

Lenahan & Dempsey

    

McCormick & Priore

    

Powell Law

   

Law Offices of Kathleen A. Walsh

   

Please consider joining those Firms and attorneys who have had success settling cases with Cummins Mediation Services.  Call Dan Cummins at 570-319-5899 today to schedule your next Mediation.  Thank you.