Monday, August 31, 2020

Proud To Note Inclusion in The Best Lawyers In America Directory



Proud to note my inclusion in The Best Lawyers In America Directory under the category of "Personal Injury Litigation - Defense."  

I am grateful to be the only insurance defense attorney in all of northeastern Pennsylvania in this category and have been chosen for this distinction every year over the past 4 years since 2016.  

Inclusion in The Best Lawyers in America national Directory is determined by peer reviews in terms of excellence in the practice of law.   Only 5% of all of the attorneys across the entire United States are included in the Directory.

I thank all those who have helped me along my career to achieve this distinction. 

Should you need a defense of a matter in northeastern Pennsylvania, local counsel, or a mediator, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

Motorists Involved in Accidents Required By Law To Move Their Vehicles Off the Roadway If Possible


In the case of Schmidt-Ramirez v. Burger, No. 9595-CV-2015 (C.P. Monroe Co. June 4, 2020 Williamson, J.), the court refused to grant a Plaintiff’s Motion for Partial Summary Judgment on the issue of contributory negligence in a motor vehicle accident case.

According to the Opinion, the Plaintiff was operating her vehicle under wintry conditions and allegedly lost control, which caused her vehicle to slide partially off the road. The Defendant driver then came along and slid on the same patch of ice that the Plaintiff had skidded on, and rear-ended the Plaintiff’s vehicle. 

Judge David J. Williamson
Monroe County
The Plaintiffs filed a motion to prevent the Defendants from suggesting that the collision was the Plaintiff’s fault. 

Given that there were issues of fact, the court denied the motion filed by the Plaintiff. The court noted, in part, that the Plaintiff’s vehicle remained operable following the accident and that, under 75 Pa. C.S.A. §3745.1, it is required that the driver of any vehicle involved in an accident that does not result in apparent serious bodily injury or death shall immediately move the vehicle from the roadway to a safe place on the shoulder or some other area off the road.   The Court ruled that these issues should be left for the jury's consideration.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 28, 2020).

Friday, August 28, 2020

Generalized Allegations of Cell Phone Usage At Time of Accident Insufficient to Support Punitive Damages Claims


In the case of Wilson v. Matas, No. 10067 of 2020, C.A. (C.P. Lawrence Co. June 3, 2020 Motto, P.J.), the court sustained Preliminary Objections filed by Defendant in a motor vehicle accident case containing claims of punitive damages based, in part, on a suggestion that the Defendant had been using a cell phone at the time of the accident.

This matter involved a rear-end accident. According to the Complaint, the Defendant had allegedly admitted to the police at the scene of the accident that she had not been paying attention at the time of the collision occurred. The Plaintiff also generally alleged that the Defendant was using an electronic device at the time of the accident.

However, the court pointed out that the Plaintiff merely alleged that the Defendant may have been using her cell phone at the time of the accident and did not contain any specific facts to demonstrate the Defendant was actually utilizing a cell phone.

As such, the court dismissed the punitive damages claims in this regard.

On an unrelated issue, the court did allow claims of negligence per se to proceed under specific allegations asserted by the Plaintiff that the Defendant was following the Plaintiff’s vehicle too closely at the time of the accident.

The court otherwise overruled the Defendant’s Preliminary Objections regarding allegations in the Complaint about the Defendant’s statements to the police officer following the accident. The court ruled that an out of court statement offered to explain a course of conduct was not inadmissible hearsay. The court also noted that a statement by a party opponent could be admitted under the evidentiary rules.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (August 4, 2020).

Thursday, August 27, 2020

Punitive Damages Claim Allowed To Proceed in Texting Case, But Not Negligent Entrustment Claim


In the case of Simpson v. Buchanan, No. 20-2583 (E.D. Pa. Aug. 5, 2020 Pappert, J.), the court denied a Defendant’s Partial Motion to Dismiss in a motor vehicle accident case involving alleged cell phone use by the Defendant driver.

The court found that allegations that a Defendant drove while being distracted by a cell phone was sufficient to support a claim for punitive damages.  More specifically, the Plaintiff alleged that the Defendant was texting at the time of the rear end accident.

Notably, the Court dismissed allegations of negligent entrustment against the Defendant-owner after the court found that the Plaintiff's allegations that the Defendant-owner knew or should have known that the Defendant-driver would be texting while driving were conclusory, speculative, and baseless allegations.  The Court also noted that the Plaintiff did not plead any facts to support a claim of prior knowledge on the part of the Defendant-owner of any poor driving history of the Defendant-driver.

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

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

Wednesday, August 26, 2020

Berg v. Nationwide Comes to an Anti-Climactic End After 22 Years


After 22 years up and down the appellate ladder, the saga in the bad faith case of Berg v. Nationwide, No. 33 MAP 2019 (Pa. 2020), has ended, with a divided Supreme Court dismissing plaintiffs’ appeal. Justices Wecht and Saylor wrote lengthy opinions on their opposing views for reversal or affirmance.

Here is a LINK to the Per Curiam Order dismissing the appeal.

Here's a LINK to Justice Wecht's Opinion in Suppport of a Reversal.

Here's a LINK to Chief Justice Saylor's Opinion in Support of Affirmance.





Tuesday, August 25, 2020

ARTICLE: Zooming Into the Future: Tips to Improve One's Appearance at Online Meetings


The below article of mine was published by the Pennsylvania Law Weekly and is republished here with permission.


Zooming Into the Future: 
Tips to Improve One’s Appearance at Online Meetings

By Daniel E. Cummins | August 06, 2020

Daniel E. Cummins, managing partner of the Clarks Summit law firm of Cummins Law.



The global coronavirus pandemic has lawyers across the nation turning to online virtual platforms to keep their cases moving forward. Completing depositions via platforms such as Google Meet or Zoom has quickly become the norm.

Also, with the return of jury trials any time soon remaining suspect, there has also been an increase in litigants turning to ADR proceedings to resolve their matters, whether it be by binding arbitrations or nonbinding mediations. The pandemic has also kept litigants away from in-person ADR proceedings, with the preference being to complete such proceedings remotely.

In addition to fully preparing for online depositions and ADR proceedings in a normal fashion by thoroughly reviewing one’s file and preparing for the hearing, it may also help one’s performance by paying attention to taking steps to improve your appearance on the virtual platform. Knowing that you have done everything to not only prepare for the deposition, mediation or other online proceeding but also for appearances sake, may, in the end, serve to improve your confidence in your presentation.

More importantly, having a better appearance at an online proceeding as compared to your opponent may also contribute to your success at the proceeding. For, as Fernando Lamas, who was Billy Crystal’s SNL character from the ’80s was famous for saying, “It is better to look good, than to feel good.”

A quick Google search for tips to improve one’s appearance on Zoom or other virtual platforms brings up numerous results with many people offering great tips on fashion, lighting, sound and general recommendations appearance. Below is a compilation of the common tips noted in these search results.

Lighting

During a Zoom meeting you do not want conditions to be too dark or too bright. Many Zoom commentators recommend having a steady lamp throwing soft light toward your face. In the alternative, they recommend that you sit facing, or looking towards, a window for soft, pleasing natural light.

Almost all commentators recommend that you avoid having any windows behind you as the daylight coming in from behind you may create a silhouette effect and make it difficult for the viewer to see you.

Background

Watching Zoom interviews on TV reveals that many people are trying too hard with their backgrounds. It is sometimes painfully obvious that the person has purposely put books or things on shelves in their background to make a statement or to say, in effect, “Look at me, look at me! Look at what is important to me.”

The danger of sitting in front of bookshelves is that some in your audience will be spending time as a voyeur looking at your background and not paying attention to you or what you have to say. You want people to focus on your face, not your background.

As such, the commentators online recommend that you avoid bookshelves and their contents, or other busy backgrounds when you are on a Zoom or Google Meet event. A plain and simple background is recommended, perhaps containing a plant or one simple, unobtrusive picture, poster or painting.

Perhaps to keep with your legal theme, you could have the scales of justice or a gavel in the background. Also, helpful could be a small- to medium-sized framed picture of your law firm logo as an advertisement of your firm for all to see online.

Adjust to Be Eye Level With the Webcam

The most common issue with Google Meet or Zoom meetings is the positioning of the person on the screen. All too often we are either looking up people’s faces and nostrils, or only seeing the top half of their faces from the nose up. Positioning your face properly in relation to the webcam on your computer or phone is important.

Find the webcam on your device and always be aware of it in terms of your positioning when preparing to join an online meeting. You want to try to avoid having the webcam too low or too high. You also want to avoid having the webcam situated below you as if it is looking up at you, or too high as if it is looking down on you.

The online commentators recommend trying to have the webcam situated so that it is eye level with you and looking straight at you. It may help to put books under your laptop or monitor to raise your webcam to eye level, so that you are looking straight on at your audience watching you on the other end.

If you are using a cellphone, try to prop the phone up in the same fashion so that the webcam is eye-to-eye level with you. You should also have your cellphone on a holder as opposed to holding it during an online meeting. No one in your audience will appreciate viewing you if you are holding your cellphone and moving it as you talk.

Also, during the meeting, try not to look at yourself or who you are speaking to on the screen so much. Rather, when speaking, look at the webcam for eye-to-eye contact with your audience. Failing to look at the webcam gives a sense to the audience that you are looking away and are, therefore, not as confident in your statements.

Also remember to advise your client to look at the webcam when testifying. There are some commentators who caution that, when a witness does not look at the webcam, it may look to the audience as if the witness is looking down or away as if they are not confident in their testimony, or are being evasive, or, even worse, may appear to be lying.

Last but not least with respect to the webcam, remember to wipe the camera window with a microfiber lens cloth periodically to allow for a clear, crisp picture.

Appearance

It is obviously recommended by the commentators that all participants be properly groomed. Business attire remains a mainstay for depositions and court hearings in order to show respect for the proceedings. The same should hold true for ADR proceedings. In other words, the commentators recommend that male attorneys should put on a tie and female attorneys should wear what they would ordinarily wear to a deposition or a court appearance. While it has become acceptable for male attorneys to take off their jacket for depositions, it is still expected that they wear a jacket for court appearances.

Fashion mavens commenting on Zoom appearances recommend that participants avoid busy patterns in your tops and ties. They also recommended that you avoid very bright and very dark colors. Rather, plain, solid colors are recommended.

The commentators also recommend avoiding wearing colors that are similar to the color of your background. They note that wearing the same color clothing as in your background, could end up creating a floating head effect. As such, it recommended that you create a contrast between the color of your clothes and the color of your background.

Other commentators recommend that you wear your favorite colors as they may boost your confidence.

In terms of jewelry, the commentators note that less is better. They note that big or dangling earrings can be a distraction and many bracelets can be noisy as you work on your desk and move things during the course of the online proceeding.

It is also noted that in the video settings on Zoom you can click on the “Touch Up My Appearance” button, which will retouch your display with a soft focus. According to Zoom, this feature “can help smooth out the skin tone on your face, to present a more polished looking appearance when you display your video to others.” Unfortunately, it cannot help with your hairline.

Sound

Obviously, during an online proceeding it is best to speak loud and clear, slow and methodical in order to ensure that your message is heard. It is polite to mute yourself whenever you can to avoid distracting noises.

Also, when engaging in an online proceeding, try to avoid cutting someone off or talking over them. When you are cut off by another person, try to stop speaking (even if the other person has rudely interrupted you), and finish your thought when that other person is done speaking. Let your ego drop for a bit and trust that, in almost every situation, a person who has been cut off in this setting will be given an opportunity to finish their statement.

One additional tip is that, at the commencement of any depositions, try to secure an agreement of all counsel that any attorney can object to the form of a question at any time, even if it is not until after the witness has answered the question. In this way, you can lessen the chance that people are speaking over one another, which could make the job difficult for the court reporter and serve to lengthen the proceedings due to the need to repeatedly repeat things.

Following the above tips may help you to have a better appearance in your online appearances. Be sure to make it a part of your practice to advise your clients of these tips in preparation for any of their online appearances.

As we zoom into the future, noting these tips will give both you and your clients a more confident presence at a deposition or an ADR proceeding. Adherence to these tips will also help your online meetings to move forward in a more orderly fashion. In the end, command over the facts, the law—and your appearance—may carry the day.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Monday, August 24, 2020

Please Save the Date - September 25th - Mediation/Arbitration Tips to be Presented Again


The Zoom CLE entitled "Mediation/Arbitration Tips" that I created and previously presented in Luzerne and Lackawanna County is set to be presented again, this time in Monroe County on September 25th.

We have expanded the progam to 1.5 hours and we are adding Attorney Gerard J. Geiger of Monroe County to the All-Star cast of presenters that will also include Judge Thomas Blewitt (ret.), Attorney Richard G. Fine, Attorney Thomas B. Helbig, Attorney Lucille Marsh, Judge Joseph Van Jura (ret.), and Judge Thomas I. Vanaskie (ret.).

Please consider registering for this CLE program.


Some Courts Continue to Allow Allegations of Recklessness Regardless of the Facts of the Case


The differences of opinion on how to handle claims of recklessness in a personal injury Complaint continues across Pennsylvania.

Here is a LINK to a detailed Order issued by Judge Lachman of the Philadelphia County Court of Common Pleas in the case of Samuel v. CVS Pharmacy, Inc., Feb. Term 2020, No. 00511, Control No. 20052148 (C.P. Phila. Co. July 24, 2020). In this case, the court overruled the Preliminary Objections asserted by the defense to the allegations of willful, wanton, or reckless conduct. The court sited to the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009) for the proposition that these types of allegations are averments of states of mind that are permitted to be pled generally under Rule 1019(b). 

The court in Samuel also held that averments of recklessness and wanton or willful behavior may also be properly pled to counter claims of comparative or contributory negligence. In this regard, the court cited several Pennsylvania Superior Court decisions as noted in the Order.


In another case involving the issue of the propriety of allegations of recklessness in a personal injury Complaint, the court overruled Preliminary Objections in the case of Capone v. Shukaitis, No. C-48-CV-2019-11239 (C.P. Northampton Co. April 23, 2020 Sletvold, J.). 

In this motor vehicle accident case, the Plaintiff alleged allegations of reckless conduct on the part of a Defendant who allegedly made a left hand turn across the path of a motorcycle operated by the Plaintiff. The defense filed Preliminary Objections to the allegations of recklessness.

In this decision, Judge Sletvold adopted the reasoning of Judge Samuel Murray of the same court in the case of Speight v. Schlacter, No. C-48-CV-2019-6973 (C.P. Northampton Co. Jan. 28, 2020), in which that court, citing the case of Archibald v. Kemble, asserted that allegations of willful, wanton, and reckless conduct are averments of a condition of the mind that may be alleged generally under Pa. R.C.P. 1019(b). The court in both the Speight case and this Capone case also emphasized that the Plaintiff had not pled or claimed punitive damages and that, as such, the Defendant would not be prejudice by the allegation of recklessness.

As such, the Preliminary Objections to the claims of recklessness were denied in both cases.
Anyone wishing to review a copy of the Capone case may click this LINK.

I send thanks to Attorney George W. Westervelt, Jr. of the Westervelt Law Office in Stroudsburg, Pennsylvania for sending the Capone case to my attention.

Split of Authority on Propriety of Allegations of Recklessness in the Absence of Supporting Facts Continues


The split of authority continues with respect to how Pennsylvania trial courts are viewing what level of pleading is necessary to support a claim of recklessness in a personal injury matter.  One line of that authority holds that anyone can claim recklessness in any case whatsoever regardless of the facts presented.

Under a second line of authority, such as those decisions out of Monroe County and other counties, trial court judges are heeding to the well-settled principle that Pennsylvania is a fact-pleading state and that sufficient facts of an outrageous nature are necessary to support claims of recklessness in a personal injury Complaint.

In his recentl decision in the case of Yockey v. Pocono Market Place, LLC, No. 8733-CV-2019 (C.P. Monroe Co. Aug. 3, 2020 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas sustained a Defendant’s Preliminary Objections to allegations of gross negligence and recklessness in a Plaintiff’s trip and fall Complaint and struck those allegations from the matter.

More specifically, the court held that the Plaintiff “failed to plead material facts in support of such allegations” of recklessness and gross negligence.   See Op. at p. 2. 

The court emphasized that Pennsylvania is a fact-pleading state and that pleadings must summarize those facts essential to support the claims asserted and in order to allow the opposing party to properly raise and assert defenses. 

In this matter, the Plaintiffs alleged in their Amended Complaint that the Plaintiff was injured due to a cracked and uneven walking surface that resulted in “dangerous conditions.” The Plaintiff asserted that the Defendants’ “negligence, gross negligence, carelessness, and recklessness” allowed such a condition to exist. 

The court specifically noted in its Opinion that the Plaintiffs alleged no facts specific to the claims of gross negligence or recklessness. 

Judge Arthur L. Zulick
Monroe County

Judge Zulick additionally stated that the Plaintiffs’ description of the walking surface alone did not suggest why the Defendants were grossly negligent or reckless. The court emphasized that additional facts were necessary as a matter of law because allegations of gross negligence and recklessness required different factual support than the claim of mere negligence. 

The court also rejected the Plaintiff’s argument that discovery is required to determine the facts to support the claims of gross negligence and/or recklessness. Judge Zulick stated that a Plaintiff must aver specific facts in the Complaint to support the claims. He  emphasized that plaintiffs “are not permitted to file a claim in the hopes that exploratory discovery will reveal a claim.”  See Op. at 6. 

In light of the reasons noted above, the court sustained the Defendants’ Preliminary Objections to the Plaintiff’s Amended Complaint and struck the allegations of gross negligence and recklessness. 

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

I send thanks to Attorney Joseph A. Murphy of the Scranton, Pennsylvania office of Bardsley, Benedict & Cholden, LLP, for bringing this case to my attention.

Thursday, August 20, 2020

UIM Bad Faith Complaint Over Disputed Value Dismissed as Conclusory


In the case of Taylor v. GEICO, No. 2-20-CV-00729-CRE (W.D. Pa. Aug. 4, 2020 Eddy, Chief Mag. J.)(Mem. Op.), the court granted a carrier's Motion to Dismiss a Plaintiff's statutory bad faith claim in a UIM matter but allowed the Plaintiff the right to amend.

In this decision by a Chief Magistrate Judge in the Western Federal District Court, it was ruled that the Plaintiff's Complaint did not hold up against the plausibility standard.  The Court noted that a "formulaic recitation of the elements of a cause of action will not do." Op. at p. 4. 

The Court noted that the Plaintiff's Complaint did not show anything more than a dispute between the Plaintiff and the carrier over the value of the claim.  It was noted that a dispute over the evaluation does not give rise to a bad faith claim;  rather, a plaintiff must plead facts to show that the carrier's evaluation lacked a reasonable basis and that the carrier knew or recklessly disregarded the fact that its evaluation was unreasonable.

This Opinion gives a nice overview of the Rule 12(b)(6) standard of review as well as the elements of a valid bad faith claim.

Anyone wishing to review this decision may click this LINK

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

Wednesday, August 19, 2020

Propriety of Utilizing a Learned Treatise At Trial Reviewed By Pennsylvania Superior Court


In the case of Charlton v. Troy, No. 2020 Pa. Super 170 (Pa. Super. July 16, 2020 Bowes, J., Olson, J., and Ford Elliott, P.J.E.) (Op. by Bowes, J.), the Pennsylvania Superior Court addressed the propriety of using a learned treatise to cross-examine a witness at a medical malpractice trial.

In the end, the Superior Court found that the trial court erred in allowing a Plaintiffs’ attorney to cross-examine the Defendant physician, who testified as a fact witness at trial, about the contents of a medical textbook that the witness did not recognize as authoritative. The court ruled that this error caused extreme prejudice to the Defendants. As such, the substantial jury verdict was vacated and the case was remanded for a new trial.

The Superior Court found that there was no foundation laid that would establish that the textbook was a learned treatise for the limited purpose of impeaching the Defendant. The court noted that the Pennsylvania Rules of Evidence did not recognize a hearsay exception for a learned treatise, i.e., any textbook or published work or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community. Rather, the court noted that the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay as extra-judicial declarations offer to prove the truth of the matter asserted within the treatise.

However, such materials may be utilized to impeach an expert with statements contained in such a text or publication if those statements are deemed authoritative or reliable by that witness or other experts in the relevant field.

The court noted that the Defendant doctor could have been questioned about the contents of the textbook if he was an expert. However, as he was only testifying as a fact witness, the Defendant doctor could only be cross-examined with a publication that he agreed was authoritative or reliable. No such foundation was laid in this regard in this case as the witness did not recognize the work as authoritative.

The appellate court found that this error was exacerbated at trial by the fact that the Plaintiff was allowed to argue the substance of the inadmissible excerpts in the closing argument.

In colorful language, the Superior Court noted that, because the error at trial in the admission of the evidence was "of such a consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial."  See Op. at p. 37 [citation omitted].

In the end, the appellate court vacated a $40+ million dollar verdict and remanded the case for further proceedings.

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


Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (July 28, 2020).

Tuesday, August 18, 2020

Third Circuit Rules Attempts To Amend Pleadings in Federal Court After Deadline Must Be Supported by Good Cause


In the case of Premier Comp Solutions v. UPMC, No. 19-1838 (3d Cir. Aug. 12, 2020) (Op. by Hardiman, J.), the court addressed the discretion of federal district trial court judges to manage their dockets, particularly with respect to allowing amendments to Complaints or the joinder of additional parties after the expiration of deadlines set in the trial court's case management order.

According to the Opinion, Plaintiff in this matter moved to amend its Complaint to add a party well after the expiration of the deadline for amendments to pleadings that the district court had set in a Scheduling Order. 

In its motion, the Plaintiffs cited the liberal standard set forth in Rule 15 of the Federal Rules of Civil Procedure, which is entitled "Amended and Supplemental Pleadings." The district court denied the motion under the rationale that, because the deadline had passed, Federal Rule of Civil Procedure 16(b)(4) required the Plaintiff to show good cause. Federal Rule of Civil Procedure addresses, in part, rules pertaining to "Scheduling" issues.

The Third Circuit Court of Appeals affirmed the decision of the district court under the reasoning that Rule 16(b)(4) applies to requested amendments once a Scheduling Order deadline for the same has passed. As such, under this standard, after the deadline set by the district court’s Scheduling Order has expired, a party is required to show good cause to allow for the amendment 

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



Source: “Court: Post-Deadline, Parties Required to Show ‘Good Cause’ to Amend Complaints or Add Parties,” by P.J. D’Annunzio of the Pennsylvania Law Weekly (August 13, 2020).

Monday, August 17, 2020

Validity of Punitive Damages Claims in a Trucking Accident Case Addressed


In the case of Decker v. Ramos, No. 15-CV-7078 (C.P. Lacka. Co. July 16, 2020 Nealon, J.), the court addressed a Defendant’s Motion for Summary Judgment in a trucking accident case. 

The Defendants sought to dismiss the tractor trailer driver as a named party since the employer admitted, for purposes of vicarious liability, that the driver was acting within the scope of his employment at the time of the accident. 

The court rejected this summary judgment request of the defense finding that, under the theory of respondeat superior, a primarily liable employee and a vicariously liable employer are not considered to be joint tortfeasors. The court also noted that the goal of vicarious liability is to provide a secondary fund of recovery if the employee-tortfeasor lacks the ability to pay. 

The court noted that Pennsylvania law permits an injured Plaintiff to sue both the primarily liable employee and the vicariously liable employer and to obtain a recovery from either party. The court stated that the defense did not cite any authority to the contrary involving cases where the employer concedes and agency relationship with the employee. As such, the Motion for Summary Judgment was denied in this regard. 

Judge Terrence R. Nealon
Lacka. Co.
Judge Nealon also addressed other parts of the Motion for Summary Judgment raised by the defense seeking to secure a dismissal of punitive damages claims. 

On the one hand, the defense asserted that they were entitled to summary judgment on the punitive damages claims against the Defendant driver as the Plaintiff did not allege that the driver’s conduct at the time of the accident was reckless. Rather, the Plaintiff based their punitive damages claims against the Defendant tractor trailer driver on the single assertion that the driver had overstated his tractor trailer driving experience on his employment application. 

After finding that their record failed to show any evidence, or even any support for reasonable inference, that the driver knew or should have realized that there was a strong probability that harm to others may result to his misrepresentation on his employment application, the court held that there was insufficient evidence to sustain any punitive damages claim against the driver. As such, the Motion for Partial Summary Judgment was granted by the court in this regard in terms of any punitive damages claims against the tractor trailer driver. 

However, the court denied the Motion for Summary Judgment filed on behalf of the employer/trucking company with respect to the punitive damages claims after reviewing the evidence in the record in this regard. The court noted that, as noted, the record contained evidence that the driver exaggerated the extent of his prior tractor trailer experience on his employment application and there was also evidence that the trucking company allegedly failed to conduct any past employment investigation as required by federal regulations to verify the driver’s prior experience. 

It was also noted that there was evidence in the record that the employer allegedly disregarded industry standards by failing to terminate the driver, or at a minimum, compelling him to undergo remedial training after he was involved in his first preventable crash during his probationary period. It was otherwise noted that the subject accident was the tractor trailer driver’s third collision within his first month of employment with the company. 

The Plaintiff had also alleged in this matter that the employer ignored the federal requirements when the employer continued to allow the driver to operate its tractor trailers allegedly without first completing safety training that was clearly required by law. 

The court also confirmed that the Plaintiff had presented expert opinion evidence that the trucking company’s actions represented a recklessness indifference and reckless disregard to the safety of the motoring public. 

Based upon this evidence in the record, the court denied the defense Motion for Summary Judgment on the punitive damages claims asserted against the trucking company Defendant. 

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

A Painless Ethics CLE by Zoom by Daniel E. Cummins Set for this Friday -- Few Spots Left -- Reserve Your Spot Today!


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
(All fees go to the Bar Association)

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:


Friday, August 14, 2020

Award of Attorney's Fees Granted Under 42 Pa.C.S.A. Section 2503


In the case of Mariotti v. Mariotti Building Products, Inc., No. 12-CV-545 (C.P. Lacka. Co. July 23, 2020 Nealon, J.), the court addressed a Motion for Sanctions and a request for the defense for the recovery of counsel fees under 42 Pa. C.S.A. §2503 in a business dispute matter.

The court noted that, under §2503(7) of the Judicial Code, the court has the discretion to award attorney’s fees “as a sanction against another participant for dilatory, obdurate, vexatious conduct during the pendency of a matter.”

It was also noted that, under §2503(9) of the Judicial Code, a court may award attorney’s fees against any party whose conduct was “arbitrary, vexatious, or in bad faith.”

After reviewing the definitions of all of the terms identified in the above Judicial Code provisions, the court found that the Plaintiff’s conduct during the course of the litigation warranted the entry of an award of attorney’s fees. As such, the defense motion in this regard was granted and a hearing was set up for a later date to determine the amount of such award.

This Opinion offers insight on the rarely addressed provisions of the sections noted in terms of request for attorney’s fees based upon improper conduct by an opposing party during the course of a litigation.

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

Wednesday, August 12, 2020

Still Time to Register for Ethics CLE Before the August Compliance Deadline


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
(All fees got to the Bar Association)

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:


Tuesday, August 11, 2020

Monroe County Bar Association Develops an Alternative Dispute Resolution Program


The Monroe County Bar Association has developed an Alternative Dispute Resolution Program to assist in the securing of resolutions of Monroe County matters, whether they be personal injury matters, family law matters, or real estate matters.  

The Monroe County County Bar has vetted and selected a number of Mediators/Arbitrators who can be retained for a fee set by the Bar.

Below is a flyer from the Monroe County Bar Association providing more information on the Program.



Monday, August 10, 2020

Pennsylvania Superior Court Addresses Tolling Provision of MCARE Act


In the case of Reibenstein v. Barax, No. 1624 (M.D.A. 2019 (Pa. Super. July 30, 2020 Olson, J., Dubow, J. and McLaughlin, J.) (Op. by McLaughlin, J.), the court referred the matter back to the trial court relative to a summary judgment motion on the statute of limitations in a medical malpractice case. 

The court noted that the Medical Care Availability and Reduction Error Act (“MCARE”) provides a statute of limitations that requires a Plaintiff to commence a wrongful death or survival action asserting a medical professional liability claim within two (2) years after the death of the Claimant. See 40 Pa. C.S.A. 1303.513(d). 

However, the Pennsylvania Superior Court also noted that the statute of limitations under this provision is subject to an equitable tolling for “affirmative misrepresentation or fraudulent concealment of the cause of death.” See 40 Pa. C.S.A. 1303.513(d).

The Pennsylvania Superior Court held that “affirmative misrepresentation or fraudulent concealment of the cause of death” means affirmative misrepresentations about or fraudulent concealment of conduct the Plaintiff alleges led to the decedent’s death. 

The court referred this matter back to the trial court for further proceedings on whether there was a fraudulent concealment or affirmative misrepresentation of an act by the medical Defendant at issue related to the Claimant’s death. 

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

Friday, August 7, 2020

Split of Authority Continues on Propriety of Allegations of Recklessness and Sparks Spirited Debate


In the case of Whitney v. Albert Einstein Medical Center Philadelphia, November Term 2019, No. 03233, Control, No. 20060389 (C.P. Phila. Co. July 24, 2020 Tsai, J.), the court issued a detailed Order in which it, in part, allowed claims for recklessness and punitive damages to go beyond Preliminary Objections given that the court concluded that the references to “reckless” conduct or “recklessness” “satisfy the pleadings requirements under the Pennsylvania Rules of Civil Procedure” and that it would premature to dismiss the claims for punitive damages at the pleadings stage.

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


A similar result was handed down in the Franklin County case of Ramirez v. Finn, No. 2020-439 (C.P. Franklin Co. July 30, 2020 Shank, J.).

In that motor vehicle accident case, the court likewise found that allegations of recklessness may be pled in any case whatsoever regardless of the facts as such allegations went to the Defendant's alleged state of mind and, under Rule 1019 allegations of the state of one's mind are allowed to be generally pled.

Anyone wishing to review this Ramirez decision may click this LINK.

I send thanks to Attorney Dale G. Larrimore, Esquire of the Philadelphia law firm of Larrimore and Farnish, LLP for bringing these cases to my attention.


To review all of the Tort Talk posts on this issue, please go to www.TortTalk.com, scroll down the right hand column to the "Labels" section and, alphabetically under that section, go to "Allegations of Recklessness" and click on that.


Commentary: The above cases show that the split of authority over whether allegations of recklessness require outrageous facts to be pled in a personal injury matter, or may be simply pled whenever as a condition of the mind, continues.

I outlined that split of authority in my recent July 14, 2020 Pennsylvania Law Weekly article which can be viewed HERE.  In that article, I noted the two theories followed by the courts in recent decisions, with one line of courts requiring allegations of recklessness to be supported by outrageous facts being pled in the Complaint the kind of which would support a claim for punitive damages, and the second line of cases allowing recklessness to be pled whenever as allegation of a defendant's state of mind.

Attorney Larrimore brought to my attention another line of cases that allowed for allegations of recklessness for a different reason.

Attorney Larrimore wrote:

There is still a bona fide purpose for allowing averments of "recklessness" in the Complaint. If the evidence reveals and the fact-finder finds that the Defendants acted with recklessness, then the defendants would be barred from raising the affirmative defense of contributory negligence at trial. Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943). "When willful or wanton misconduct is involved, comparative negligence should not be applied." Krivijanski v. Union R. Co., 515 A.2d 933, 936, 357 Pa. Super. 196, 203 (1986). Plaintiffs should not be barred from alleging that the Defendant acted with recklessness and thus avoid the potential affirmative defense of comparative negligence, simply based on whether or not a claim for punitive damages is allowed. Thus, an averment of recklessness is proper on its own, with or without a claim for punitive damages.

At the outset of a case, [a plaintiff's attorney] cannot know what was in the state of mind of the defendant driver just prior to a violent car crash. Did he recognize that the manner in which he was operating his vehicle (speeding, weaving in and out of traffic, tailgating etc) placed other drivers at risk of serious injury? Without taking his deposition and assessing his knowledge of the risks of aggressive driving, [a plaintiff's attorney] cannot know what [the defendant driver] was thinking, and Rule 1019(b) allows [the plaintiff's attorney] to allege that [the defendant driver] was acting with reckless indifference to the dangers [the defendant driver] was creating. [Emphasis and double emphasis in original; bracketed inserts inserted here].

Allegations of Recklessness Stricken in Federal Court Trucking Accident Case Where No Outrageous Facts Pled


In the trucking accident case of Carson v. Tucker, No. 5:20-CV-00399 (E.D. Pa. July 16, 2020 Leeson, J.), the Court granted the Defendants’ Motion to Dismiss the Plaintiff’s claims of punitive damages and the defense's Motion to Strike the references to “gross,” “wanton,” and “reckless” throughout the Complaint where the Plaintiff could not factually justify the allegation of those terms. 

According to the Opinion, the accident involved one (1) tractor trailer rear-ending another tractor trailer, resulting in alleged injuries to the Plaintiff-tractor trailer driver. 

It is noted that the court previously granted the defense motion with respect to the Plaintiff’s original Complaint and allowed the Plaintiff the opportunity to amend. The case then came back to the court on similar objections to the Amended Complaint. 

The Defendant filed a Motion to Dismiss under 12(b)(6). While the court agreed to review their Motion to Dismiss the punitive damages claims under this standard, the court noted that the more proper standard to review the Defendant’s request to dismiss the allegations of gross, wanton, and reckless conduct throughout the Complaint would be under a Rule 12(f) Motion to Strike rather than a Motion to Dismiss under Rule 12(b)(6). 

After applying those applicable standard of review and after reviewing the requirements to pursue a punitive damages claim under Pennsylvania law, the court granted the Motions at issue. 

Judge Joseph F. Leeson, Jr.
E.D. Pa.
Judge Leeson reviewed the facts of numerous cases in which punitive damages were permitted to proceed against a tractor trailer defendant engaging in outrageous conduct or conduct confirming reckless indifference to the safety of others.  The court noted that, in this matter, simple allegations limited only to the Defendant allegedly failing to comply with traffic laws were not sufficient to support a claim for punitive damages. 

The court dismissed a claim for punitive damages in this case after finding that the Plaintiff did not plead facts sufficient to show that the Defendant tractor trailer driver’s actions were “outrageous enough to warrant punitive damages.” The court also found that the Plaintiff’s claims or conclusory and did not satisfy the requirement of asserting something more than mere negligence to support the claims.

The court also noted that the Plaintiff did not pled any facts to sufficiently illustrate that the Defendant driver had the necessary mental state of either intent or reckless indifference to justify the claim for punitive damages. 

With regards to the claims of gross, wanton, and reckless conduct, the court ruled that, since the punitive damages claims were dismissed, such terms became immaterial and had no essential or important relationship to other claims for the relief alleged. As such, the Motion to Strike was granted. 

With this ruling, it appears that this Eastern Federal District Court follows the line of those decisions that require sufficient facts to be pled in order to assert a claim for recklessness in a Complaint and not under that line of cases that allows recklessness to be pled in any case whatsoever regardless of the facts alleged.

I send thanks to Attorney James DeCinti, Esquire of the Harrisburg, PA office of the Pion, Nerone, Girman, Winslow & Smith, P.C. law firm for bringing this case to my attention.


For more cases on outlining the issue regarding allegations of recklessness in a tort Complaint, please go to www.torttalk.com, scroll down the right hand column until you get to the “Labels” section, and then scroll down alphabetically to the label for “Allegations of Recklessness” and click on that to get to all of the Tort Talk posts on this issue.

Wednesday, August 5, 2020

Gallagher v. GEICO Limited To Its Facts By Another Court


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

In this matter, at the time of the accident, the Plaintiff owned two (2) policies issued by Erie Insurance. On the date of the accident, the Plaintiff was operating a motorcycle that was covered under a Progressive Insurance policy.

The Plaintiff recovered the applicable policy from the tortfeasor and then sought to recover benefits from the Erie auto insurance policy. Neither of the Erie Insurance policies listed the motorcycle as a covered vehicle.

Rather, as noted, the motorcycle was covered under a separate policy issued by Progressive. Moreover, it was confirmed that the Plaintiff had not purchased stacked UIM coverage on his motorcycle policy.

The Erie Insurance policies contained a household exclusion.

This decision represents another decision in which a court has limited the Pennsylvania Supreme Court decision in Gallagher v. Geico to its facts even though the judicially activist Pennsylvania Supreme Court expressed that its decision eradicated the household exclusion across the board. Rather, the court in this Erie Ins. Exch v. Mione case took a more measured approach and analogized the facts before it to be more consistent with the facts in issue in the Pennsylvania Supreme Court decision in Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1999).

Following Eichelman the court in this matter ruled that, in the absence of a clearly expressed public policy, the clear and unambiguous language of the valid household exclusion in the Erie auto insurance policy must be given its plain meeting.

The court also noted that, giving effect to the household exclusion would further legislative policy behind the MVFRL in holding the Plaintiff to his voluntary choice of not purchasing UIM coverage under this separate motorcycle policy for the motorcycle involved in the accident.

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

Pennsylvania Supreme Court Addresses Liability of Mental Healthcare Providers To Warn Others Regarding Patient


In the case of Maas v. UPMC Presbyterian Shadyside, No. 7 WAP 2019 (Pa. July 21, 2020) (Op. by Dougherty, J.)(Baer, J., Dissenting), the Pennsylvania Supreme Court addressed the duty of a mental health treatment provider to warn individuals who may be the subject of their patient’s threats.

According to the Opinion, a mental health patient lived in an apartment building and repeatedly told his doctors and therapist that he would kill an unnamed “neighbor.”

Unfortunately, the mental health patient ultimately carried out his threat, killing an individual who lived in his building, a few doors away from his own apartment.

In a subsequent wrongful death litigation filed by the victim’s family, the Defendant medical providers argued that they had no duty to warn anyone about the patient’s threats because he never expressly identified a specific victim.

The trial court rejected this argument and denied the medical providers’ Motion for Summary Judgment.

The case went up on appeal and the Superior Court affirmed the trial court’s finding.

With this decision, the Pennsylvania Supreme Court also affirmed and found no reversible error.

Anyone wishing to review a copy of the Majority Opinion in this decision may click this LINK.

The Dissenting Opinion by Justice Baer may be viewed HERE.

Motion to Compel Discovery Denied After Party States They Cannot Produce What They Do Not Have


In the case of Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Co-op, No. 15-6480 (E.D. Pa. June 29, 2020 Schiller, J.), the court addressed a Plaintiff’s Motion to Compel the Defendants to produce additional documents in this anti-trust litigation after the Defendant advised that they had made a thorough search and could not find any additional discoverable documents.

The court denied the Motion to Compel after finding that the court had been provided with additional information by the defense with regards to the search methodology completed by the Defendants to look for the information, which included research from their IT and sales department to seek out electronically stored information. The Defendants also advised that they requested former salespersons to search their historic files.

The Plaintiffs argued under the Federal Rules of Civil Procedure that the Defendants had failed to meet their obligations under Rule 34 and, as such, the Plaintiffs sought an Order compelling additional discovery.

In this matter, Judge Schiller stated that the burden was upon the Plaintiff to prove that the Defendant’s search was not reasonable. Significantly, the court held that the Plaintiff could not carry that burden by merely pointing to an absence of information. The Plaintiff’s Motion to Compel was therefore denied.

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

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




Monday, August 3, 2020

Need an Ethics CLE Credit?



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:


Latest Decision From Pennsylvania Superior Court On Stacking Waiver Forms


In the case of Franks v State Farm Mut. Auto. Ins. Co., 2020 Pa. Super 181 (Pa. Super. July 31, 2020  Lazarus, J., Kunselman, J., McCaffrey, J.)(Op. by McCaffrey, J.), the Pennsylvania Superior Court held that, under Sackett I, 75 Pa.C.S.A. Section 1738(c) requires a new stacking waiver whenever the stacked amount of UIM coverage changes — regardless of whether the change is an increase or decrease in the amount of stacked coverage. 

In so ruling the Court, noted that its interpretation of the issue was consistent with the recognized policy of construing the Motor Vehicle Financial Responsibility Law “liberally in favor of the insured” so as to “afford[ ] the injured claimant the greatest possible coverage.”

Anyone wishing to review this decision may click this LINK.

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