En Banc Argument Granted in Stacking Case

Tort Talkers may remember a post from over the summer on the 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.), in which 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.”

As an update it is noted that the Pennsylvania Superior Court has withdrawned this decision in favor of a re-argument en banc on the issues presented.  Here is a LINK  to the relevant Order.

Stay tuned for more updates in the future on this latest stacking case.

I send thanks to Attorney Benjamin P. Novak of the Philadelphia office of Fowler, Hirtzel, McNulty & Spaulding, LLP for bringing this update to my attention.

Get Into the Holiday Spirit with a Holiday Themed CLE Course by Tort Talk

 

MONROE COUNTY BAR ASSOCIATION

Continuing Legal Education Committee

and 

TORT TALK

Present another One Hour ZOOM CLE

Tuesday, December 8, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

CLICK THIS LINK FOR REGISTRATION INFO

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HAPPY THANKSGIVING TO YOU

Pausing from posting on cases to wish you a Happy Thanksgiving and to say "Thank You Very Much" for reading Tort Talk and for supporting Tort Talk by sending in your tips on court decisions you have secured.

Much appreciated,

Dan Cummins

Court Reviews Test for Competency of a Child to Testify

Sometimes a decision in another area of the law can prove useful in civil litigation matters.

In the case of MA v. JH, No. FC-20-20486 (C.P. Lyc. Co. Sept. 9, 2020 Tira, J.), the court addressed the competency of a child to testify in a hearing pertaining to a Protection from Abuse proceeding. 

In the end, the court found that the child was incompetent to testify due to a lack of maturity. As such, the child’s hearsay statements were also found to be inadmissible at the proceeding. 

According to the Opinion, the child was 4 ½ years of age. 

In this matter, the mother filed a Petition for Protection from Abuse. Prior to the scheduled hearing, the mother requested a tender years hearing pursuant to 42 Pa. C.S.A. §5985.1. 

This decision is notable for its reference to the test to determine the competency of a child under 14 years of age to testify. The court noted that this test was set forth in the case of Roche v. McCoy, 156 A.2d 307 (Pa. 1959). 

Under the Roche decision, it was noted that competency was the rule and incompetency was considered to be the exception. That court also ruled that, when the child is under the age of 14, a judicial inquiry into the child’s mental capacity was mandatory. The factors for the court to consider with respect to the child under the age of 14 included the child’s mental capacity, ability to communicate, and consciousness of the duty to speak the truth. 

After interviewing the child in this case, the court found that the child was not mature enough to testify. The court also ruled that the hearsay statements of the child could not come into evidence as well. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 27, 2020).

ENCORE PRESENTATION: MEDIATION/ARBITRATION TIPS CLE SET FOR DECEMBER 15th

 

A ZOOM CLE

"MEDIATION/ARBITRATION TIPS"

(1 Hour of Substantive CLE Distance Learning Credit)

Tuesday, December 15, 2020 -  12:30 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.)

The cost to attend the program is free for PADC members and $45 for non-members.

To register for this program contact the PADC Executive Director David Cole at dcole@philadefense.org.

Technology Assistance Provided by 

Link to Erie Insurance v. Petrie Decision

Yesterday I wrote on the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), in which the Pennsylvania Superior Court held that the carrier improperly denied a UIM claim of an insured who had rejected stacking on two separate policies with two different companies and, in so ruling, credited Gallagher v. GEICO with widespread effect.

I forgot to include the Link to the decision -- sorry about that!

Anyone wishing to review this case, may click this LINK.

Panel of Pennsylvania Superior Court Judges Gives Gallagher v. GEICO Wide Effect

The debate on the effect of the Pennsylvania Supreme Court's decision in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), continues on.

This question was most recently addressed by a panel of Pennsylvania Superior Court Judges in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.).

In Petrie, the Pennsylvania Superior Court held that the carrier improperly denied a UIM claim of an insured who had rejected stacking on two separate policies with two different companies and, in so ruling, credited Gallagher v. GEICO with widespread effect.

According to the Opinion, the Plaintiff was fatally injured in an accident while he was riding a motorcycle.

Relative to the UIM claims, the Plaintiff had recovered UIM benefits under a policy issued to him by Foremost Insurance for the motorcycle. At the time the Plaintiff also had another policy in the household with Erie Insurance that covered four other vehicles in the household, unstacked.

In addition to Erie having secured a rejection of stacking from the insured, the Erie policy also contained a Household Exclusion. The Household Exclusion relieved Erie of having to provide UIM benefits relative to any accident was insured in while in another vehicle of the household that was not insured by Erie Insurance.

Erie asserted that the executed rejection of stacking precluded the Plaintiff’s efforts at inter-policy stacking between the Erie policies and the Foremost policy that covered the motorcycle.

Erie filed this Declaratory Judgment action and filed a motion for judgment on the pleadings. The trial court granted the motion and the Plaintiff appealed. As noted, with its decision the Superior Court reversed and remanded the case for further proceedings. 

The Pennsylvania Superior Court found that the waiver of inter-policy stacking was ineffective under Craley v. State Farm Fire & Cas. Co., 895 A.2d 530 (Pa. 2006). More specifically, the Superior Court, relying upon a footnote in Craley which the carrier in this matter asserted was dicta, agreed with the Plaintiff that the waiver form did not clearly put the insured on notice that he was waiving inter-policy stacking at the time he purchased insurance. The Plaintiff had argued in this matter that the waiver form only referenced a “policy” and not “policies” and that the Plaintiff was, therefore, not put on clear notice that the waiver of stacking would also apply to policies issued by other companies. 

The Superior Court also ruled that the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO which invalidated the household exclusion is not limited to its facts. The Superior Court in this Petrie case also held that the Household Exclusion was invalid as a de facto waiver of stacked coverage when Pennsylvania law required that carriers secure written waivers or rejections of stacked coverage from its insureds. As such, the Superior Court judges weighing in on this case took the view that Gallagher v. GEICO was not limited to its facts which involved the same carrier issuing both policies at issue in that case.

In footnote 7 in this Petrie decision, the Pennsylvania Superior Court noted that the Pennsylvania Supreme Court is addressing the Craley issue in the case of Donovan v. State Farm but that the Superior Court was required to decide this Petrie case based upon the law at present. 

In the end, the Superior Court reversed the trial court’s granting of a motion for judgment on the pleadings in favor of the carrier and remanded the case for further proceedings.

Anyone wishing to review this case, may click this LINK.

ONE WAY TO GET INTO THE HOLIDAY SPIRIT

THE BAR ASSOCIATION OF LEHIGH COUNTY

and 

TORT TALK

Present a One Hour ZOOM CLE

Friday, December 4, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

Tuition: $15.00

To Register Email: cle@lehighbar.org

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Interesting Issues in Postal Truck Accident Case

In the case of Diawara v. United States, No. 18-3520 (E.D. Pa. Oct. 22, 2020 Pratter, J.), the court addressed various notable issues in a motor vehicle accident case involving a postal truck and the application of the Federal Tort Claims Act. In this decision, the court was addressing several pre-trial Motions In Limine. 

Of note, the court ruled that a prior Social Security Administration determination of the Plaintiff’s total disability did not serve to collaterally estop the government Defendant from arguing against the Plaintiff’s allegations of total disability. 

The court also noted that the determination by the Social Security Administration on the Plaintiff’s total disability could not be admitted into evidence by the Plaintiff as the Social Security Administration had utilized different standards and did not involve any adversarial proceedings. More specifically, the court rejected the Plaintiff’s Motion to Preclude the government from arguing that the Plaintiff was not disabled. The Plaintiff presented this motion in light of the fact that there was a Social Security Administration determination of full disability. The court found that the principles of collateral estoppel did not preclude the government from making an argument at this trial contrary to the determination by the Social Security Administration. 

The court additionally granted the Motion to Preclude the Social Security Administration Disability determination from coming into evidence after finding that the Social Security Administration had utilized different standards to reach that determination. The court also found that admitting that determination into evidence could cause confusion and possibly delay the trial.

It was held that the Plaintiff could still seek to admit the underlying evidence that was submitted to the Social Security Administration in support of an argument of a total disability as a result of the accident. 

The court additionally noted that the government Defendant could use the Social Security Administration determination to later offset any lost wages awarded in this matter. 

In another notable decision in this case, the court denied the Plaintiff’s motion to exclude one of the government Defendant’s medical expert’s testimony as being contradictory and cumulative of another government medical expert’s testimony. The court found that there was no error in the government’s decision to have an orthopedic surgeon opine as to the Plaintiff’s shoulder injuries and to have a neurologist, whose testimony of the Plaintiff sought to exclude, offer opinions on the Plaintiff’s alleged neurological injuries even though an orthopedic surgeon could be qualified to make neurological assessments as well. 

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 10, 2020).

CLIENT SATISFACTION IS PARAMOUNT

Proud to note that the American Institute of Personal Injury Attorneys has selected me for membership on its list of 10 Best Attorneys in Pennsylvania for Client Satisfaction in the practice area of Personal Injury Law where I work solely on the defense side.

At Cummins Law, Client Satisfaction is the top priority. We respond to all phone calls and emails the same day or no later than the next day. 

We also strive to bring home the best results for our clients in the most responsive, prompt, and cost-efficient manner possible.

New clients and new defense assignments are currently being accepted at our insurance defense firm. We defend matters in the state and federal courts all across the northeastern quarter of Pennsylvania.

Please review our website at www.CumminsLaw.net for more information on our firm. Please also review our blog at www.TortTalk.com.

If you are in need of additional defense counsel to defend your cases, please contact me at dancummins@CumminsLaw.net or at 570-319-5899 to discuss how we can help you or your company, or to request our resume and fee schedule.

Another Opportunity for CLE Credits

 

MONROE COUNTY BAR ASSOCIATION

Continuing Legal Education Committee

and 

TORT TALK

Present another One Hour ZOOM CLE

Tuesday, December 8, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

CLICK THIS LINK FOR REGISTRATION INFO

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A Primer on Responding to Requests For Admissions

In the case of Loughery v. Mid-Century Ins. Co., No. 2:19-CV-00383-WSH (W.D. Pa. Oct. 13, 2020 Hardy, J.), the court addressed a Defendant’s Motion to Strike Objections and have its Requests for Admissions addressed to the Plaintiff deemed admitted. The court granted the motion in part and denied it in part. 

In his Opinion, Judge W. Scott Hardy of the United States District Court for the Western District of Pennsylvania provided the current status of the law pertaining to Requests for Admissions and responses thereto under Federal Rule of Civil Procedure 36. 

In his Opinion, the court provided the excellent advice that the “substance of the requests themselves should contain statement of fact that are simple and concise so that they can be denied or admitted with minimal need for explanation or qualifications, and be answered yes, no, the answerer does not know, or a very simple and direct explanation given as to why an answer cannot be supplied such as when a privilege is invoked.” See Op. at p. 2. [citations omitted]. 

The court also noted that “[a] denial is a perfectly reasonable response when an issue in dispute is requested to be admitted.” See Op. at p. 2. [citations omitted]. 

The court additionally noted that “an answer may be qualified if the request posits a statement that contains some truth but conveys unwarranted and unfair inferences when standing alone and out of context of the whole truth". See Op. at p. 3. [citations omitted]. 

The court additionally stated that, “while the responding party may qualify a response when a request contains a statement that is only partially true, the responding party may not make ‘disingenuous, hair-splitting distinctions whose unarticulated goal is to unfairly burden an opposing party.’” See Op. at p. 3. [citations omitted]. 

The court additionally noted that, once a responding party answers or objects, the requesting party may seek a judicial determination as to the appropriateness of the responses produced by the answering party.

Judge Hardy noted that, in evaluating the answers and objections to a Request for Admission, the court should consider (1) whether the denial fairly meets the substance of the request; (2) whether good faith requires that the denial be qualified; and (3) whether any ‘qualification’ which has been supplied is a good faith qualification.” See Op. at p. 3 [citations omitted].

As noted, the court in this matter granted the Motion and denied the Motion in part.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 29, 2020).

Corrected Link to Article: "Fighting the Good Fight"

 

Here is the corrected LINK to my article entitled "Fighting the Good Fight: The Insurance Defense Litigator" that appeared in the Journal of Tort Law.

Thank you.

NEED CLE CREDITS? MEDIATION/ARBITRATION TIPS TO BE PRESENTED AGAIN

 

A ZOOM CLE

"MEDIATION/ARBITRATION TIPS"

(1 Hour of Substantive CLE Distance Learning Credit)

Tuesday, December 15, 2020 -  12:30 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.)

The cost to attend the program is $35 for PADC members and $45 for non-members.

To register for this program contact the PADC Executive Director David Cole at dcole@philadefense.org.

Technology Assistance Provided by 

Article Published in the Journal of Tort Law: "Fighting the Good Fight: The Insurance Defense Litigator"

 

Here is a LINK to an article of mine entitled "Fighting the Good Fight: The Insurance Defense Litigator," which was published in the Widener University Commonwealth Law School's Journal of Tort Law. This is the only peer reviewed journal in the United States devoted to Tort Law.

The article is republished here with permission from the publisher, De Gruyter.

I was requested to analyze the day-to-day practice of an insurance defense litigator in tort matters. The focus of the article was to provide those in the legal academic field with insight into defense litigation in the tort arena of personal injury matters. 

The article attempted to provide that insight along with suggestions as to areas of training that law students may benefit from if offered in law school to prepare them for the practice of law in the area of civil litigation.

I send thanks to the Editor of the Journal, Professor Christopher J. Robinette, for inviting me to write for the Journal. I also send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer for his efforts to get me involved in the creation of this year's edition of the Journal.

Lawsuit by Priest Against Parishioners Dismissed

In the case of Father Jim Tracy v. O’Bell, No. 2020-CV-1618 (C.P. Lacka. Co. Oct. 26, 2020 Nealon, J.), the court granted a demurrer against a Roman Catholic priest who filed suit against certain parishioners. 

The Roman Catholic priest asserted in his Complaint that his appointment as a priest at a parish was terminated by the Bishop of the Diocese of Scranton based upon the parishioners’ false complaints made against him with regards to allegations concerning the priest’s use of the Diocese’s money, and with respect to alleged harassment of a parish employee. The Plaintiff priest based his action against those parishioners upon a claim of tortious interference with his contractual relationship. 

The parishioners filed Preliminary Objections asserting that the priest cannot pursue a civil claim against them due to application of the “deference rule” which, in this context, is known as the “ministerial exception.” 

The court noted that, under the deference rule/ministerial exception, the law constitutionally prohibits judicial intervention in dispute stemming from an ecclesiastical decision to remove clergy from assigned positions. 

The court otherwise noted that the Pennsylvania Supreme Court has extended the civil liability protection afforded by the “ministerial exception” to congregants whose words or actions provoke a decision to discharge or transfer a member of the clergy. 

As such, the parishioner’s Preliminary Objections in the nature of a demurrer were sustained and the case dismissed without lead to amend. (The Plaintiff had already previously amended the Complaint in this matter).


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

Right of Attorneys To Strike Jurors in Lackawanna County Civil Trials Potentially Eliminated By Pennsylvania Supreme Court Order

 

The Pennsylvania Supreme Court has granted an Application from the Lackawanna County Court of Common Pleas to suspend or modify Pa.R.C.P. 221 and issued an Order on November 4, 2020 allowing the trial court judges to limit, or even eliminate, any peremptory challenges by parties in civil litigation lawsuits in Lackawanna County.

This Application was apparently submitted due to difficulties in getting jurors to appear in court in response to juror summonses during the Covid-19 pandemic.

In the Order, the Pennsylvania Supreme Court noted that any interested parties could have filed an objection to the same by November 12, 2020, a mere eight (8) days after the Order was entered.  I note that I only became aware of the Order yesterday and share it here now.

Anyone wishing to review this Order may click this LINK.

Commentary:

It appears that litigants proceeding to Trial in Lackawanna County potentially have no say in the makeup of their juries other than to request that some jurors be stricken for cause.  It also appears that there is no remedy available given that any appeals on this particular issue could ultimately be decided by the very Pennsylvania Supreme Court that issued the ill-advised Order allowing this in the first place.

Members of both the Plaintiff's bar and the Defense bar should work together to right this wrong.  Every citizen in Pennsylvania has a state and national Constitutional right to a jury trial and within that right is the right to take an active part in the selection of a fair and impartial jury.

First Party and UIM Bad Faith Claims Dismissed in Post-Koken Case; Leave to Amend Granted

 

In the case of Canfield v. Amica Mut. Ins. Co., No. 20-2794 (E.D. Pa. Oct. 2, 2020 Pappert, J.), the court ruled that a Plaintiff could not recover  damages under Pennsylvania's MVFRL or on her bad faith claim  where the allegations in her Complaint suggested nothing more than an ordinary dispute with her carrier over the value of her claims in this post-Koken auto accident matter.

More specifically, the court found that the facts alleged regarding the dispute between the Plaintiff and the carrier over the value of the claim and the payment of first party benefits did not amount to allegations of wanton conduct as required for the relief requested by the Plaintiff relative to her first party medical benefits claims asserted under Section 1797 of the MVFRL.

The court's decision with respect to Section 1797 is also notable in that the court followed prior precedent holding that, unless the carrier's actions fall outside the ambit of Section 1797 and involves bad faith abuses not related to the challenge of the denial of first party medical benefits, the MVFRL preempts the statutory bad faith claim concerning the Plaintiff's request for PIP benefits.

With regards to any separate bad faith claims asserted by the Plaintiff in the Complaint, the court pointed out that the Plaintiff did not aver an unreasonable denial of UIM or first party medical benefits by the carrier, but rather only alleged a delay in the payment of the same and an allegedly unreasonable position taken by the carrier on the value of the case.  

The court found that, while the Plaintiff disagreed with the value put on the file by the carrier, she had not asserted facts in the Complaint to support an allegation that the carrier's evaluation was unreasonable and/or that the carrier knew that it was unreasonable, all as is required to move forward on a bad faith claim.  

The court noted that, to proceed on a bad faith UIM claim in this regard, the Plaintiff must allege more than that the carrier extended "low-ball offers."  The court reaffirmed the rule of law that a carrier is permitted to make low but reasonable offers of settlement without fear of being found in bad faith. 

In the end, the court granted the Plaintiff leave to amend the Complaint to try to assert valid claims with regards to the above issues.

Anyone wishing to review this Opinion may click this LINK.  The court's companion Order can be viewed HERE.

Source: "Digest of Recent Opinions - Most Viewed Opinions."  Pennsylvania Law Weekly (Nov. 3, 2020).

TORT TALK HOLIDAY THEMED CLE FOR LEHIGH COUNT ON DECEMBER 4TH via ZOOM (Non-Members Welcome)

THE BAR ASSOCIATION OF LEHIGH COUNTY

and 

TORT TALK

Present a One Hour ZOOM CLE

Friday, December 4, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

Tuition: $15.00

To Register Email: cle@lehighbar.org

Technical Support Provided by:

Dates Available With Cummins Mediation Services to Complete Mediation Before The End of The Year

It's not too late to schedule a Mediation to bring your case to a close before the end of the year.

Please consider trying Cummins Mediation Services.  Fee schedule available on request. 

Please contact me at dancummins@CumminsLaw.net to set up your Mediation.

Hershey is the Sweetest Place on Earth For Claims Against Hershey

In the case of Baughman v. Hershey Entertainment and Resort Co., No. 6624-CV-2019 (C.P. Monroe Co. Aug. 3, 2020 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas addressed jurisdictional issues in a case involving a slip and fall by the Plaintiff that occurred at Hershey Park Stadium in Dauphin County. 

Before the court were Preliminary Objections filed by Defendant Hershey asserting that venue was not proper in Monroe County under the Pennsylvania Rules of Civil Procedure. 

The Plaintiffs asserted that venue was proper in Monroe County given that Hershey regularly conducted business in that county and given that the Plaintiff purchased their ticket in Monroe County to attend an event at the Hershey Park Stadium. The Plaintiffs asserted that the purchase of a ticket constituted a transaction or occurrence under which the cause of action arose. 

Judge Zulick noted that, in determining whether a company regularly conducts business in a particular county, the courts employ a quality/quantity analysis. 

Judge Zulick stated that, although Hershey had some contacts with Monroe County, these contacts were not of sufficient quantity for venue purposes. The court noted that Hershey’s total sales in Monroe County constituted only .24% of its total sales. The court relied upon case law holding that sales of less than 1% were not sufficient to confer venue. 

With respect to the Plaintiff’s argument that Monroe County was proper venue as that was where the party’s contract was made by virtue of the Plaintiff purchasing a ticket to the event at the Hershey Stadium in Monroe County, the court noted that, if this matter had involved a contract dispute that factor may have carried more weight. However, since this was a personal injury action, the focus of that analysis was on the place of the fall and not the purchase of the ticket. 

Based upon the above analysis, the court concluded that venue was not proper in Monroe County. As such, the Defendant’s Preliminary Objections were granted and the case was transferred to Dauphin County where the slip and fall had actually occurred. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 27, 2020).

TORT TALK CLE BEING OFFERED IN MONROE COUNTY via ZOOM (Non-Members Welcome Too)

MONROE COUNTY BAR ASSOCIATION

ontinuing Legal Education Committee

and 

TORT TALK

Present another One Hour ZOOM CLE

Tuesday, December 8, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

CLICK THIS LINK FOR REGISTRATION INFO

Technical Support Provided by:

Court Allows Claim To Proceed Against Gun Owner Where Plaintiff Shot By Mentally Unstable Person Who Had Access to Guns

In the case of Blank v. Combs, No. 10122 of 2020, C.A. (C.P. Lawr. Co. Aug. 5, 2020 Motto, J.), the court overruled a Defendant’s Preliminary Objections in the nature of a demurrer in a case involving claims that the Defendants knew about their stepfather’s mental health issues and failed to take any precautionary measures to prevent injury to the Plaintiff, even after discovering that their stepfather was distressed and had left their residence with a firearm. The stepfather ended up shooting the Plaintiff. 

According to the Opinion, the shooter was the stepfather of the Defendant gun owner and the stepfather resided with his stepson.

It was alleged in the Plaintiff's Complaint that the stepson kept a firearm in an unlocked desk draw at the residence. It was additionally alleged that the stepfather knew the location of the gun and was able to access it. 

It was further alleged that the Defendant stepson was aware that the stepfather had a history of mental illness, including a bipolar disorder, paranoia, and schizophrenia. It was also noted that the stepfather’s mental health issues had led to his hospitalization in the past. 

On the date of the incident, the stepfather was having an episode of paranoia. It was known to the Defendants that the stepfather had taken the firearm and left the house. However, neither of the Defendants took any action to notify law enforcement. The stepfather later shot the Plaintiff on the same day. 

The Plaintiff filed suit alleging negligence on the part of the gun owners. The Defendants filed Preliminary Objections asserting that they cannot be liable for the Plaintiffs’ injuries based upon the criminal conduct of a third party in the absence of a pre-existing relationship imposing a duty of care upon the Defendants. 

The court ruled that, under Pennsylvania law, the Plaintiff had alleged sufficient facts to support a cause of action. The Plaintiff had alleged that the Defendants were aware of the stepfather’s mental health issues and, even though the stepfather had exhibited signs of distress, neither of the Defendants took any steps to secure the firearm or prevent the stepfather from gaining access to it. The Plaintiff had also alleged that, even after it was discovered that the stepfather had left the home with the weapon, the gun owners did not attempt to contact law enforcement. 

The court overruled the Defendants’ Preliminary Objections finding that these facts were sufficient to support the Plaintiffs’ claims for negligence and loss of consortium. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 29, 2020).

Need CLE Credits?

On November 17, 2020 at 12:30 p.m., the Philadelphia Association of Defense Counsel will present a webinar entitled “Persuasive Opening Statements.”

The program will be presented by PADC members Wesley R. Payne, Esquire of White & Williams and Kenneth S. Butensky, Esquire of the City of the Philadelphia Law Department and moderated by Jennifer S. Coatsworth, Esquire of Margolis Edelstein.

The presentation offers one substantive CLE credit.

The cost to attend the program is $35 for PADC members and $45 for non-members.

To register for this program contact the PADC Executive Director David Cole at dcole@philadefense.org.

I note that I am not presenting at this event and am not affiliated with the event. I have only been asked to post on this event.

HOLIDAY THEMED CIVIL LITIGATION UPDATE ZOOM CLE ALSO BEING PRESENTED IN LEHIGH COUNTY (Non-Members Welcome)

THE BAR ASSOCIATION OF LEHIGH COUNTY

and 

TORT TALK

Present a One Hour ZOOM CLE

Friday, December 4, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

Tuition: $15.00

To Register Email: cle@lehighbar.org

Technical Support Provided by:

Statutory Bad Faith Claim Dismissed in UIM Matter Where Plaintiff Settled for Substantially Less Than Tortfeasor's Liability Limits

In the case of Fertig v. Kelley, No. 16-CV-4801 (C.P. Lacka. Co. Nov. 5, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a UIM carrier’s Motion for Summary Judgment with regards to a statutory bad faith claim in a UIM case. 

According to the Opinion, following a motor vehicle accident, the Plaintiff filed a post-Koken action against both the third party tortfeasor driver and the Plaintiff's own underinsured motorist carrier. The Plaintiff also asserted a bad faith claim against the UIM carrier pursuant to 42 Pa. C.S.A. §8371. 

The claim against the third party defendant was settled and, thereafter, the remaining claims against the UIM carrier continued.

In support of a bad faith claim, the Plaintiff asserted that the UIM carrier had a duty to pay UIM benefits “that were reasonably due,” but “failed to promptly offer payment of the reasonable and fair failure” of her claim. 

The court noted that the record before it confirmed that the UIM carrier had promptly addressed and resolved an issue regarding the timing of the named insured’s execution of her limited tort coverage election form, and had also reformed the insurance policy to afford full tort coverage to the Plaintiff in light of the same. 

It was additionally noted that, once the Plaintiff presented a settlement demand for UIM benefits fourteen (14) months after the UIM carrier had granted the Plaintiff full tort status, the UIM carrier denied the Plaintiff’s claim on the grounds that the tortfeasor’s liability insurance coverage of $100,000.00 was sufficient to compensate the Plaintiff for her alleged injuries. 

After the Plaintiff later settled her liability claim against the tortfeasor for only $57,500.00 out of the available $100,000 in liability limits, the UIM carrier eventually filed a Motion for Partial Summary Judgment with regards to the Plaintiff’s statutory bad faith claim. I note that I was the defense attorney for the third part tortfeasor in this matter. 

Judge Nealon noted that, in order to recover damages for bad faith under 42 Pa. C.S.A. §8371, the Plaintiff must demonstrate, by clear and convincing evidence, that the UIM carrier (1) did not have a reasonable basis for denying the request for UIM benefits, and (2) knew or recklessly disregarded its lack of a reasonable basis to deny the UIM claim. 

The court noted that, even viewing the record in a light most favorable to the Plaintiff as required by the standard of review for a summary judgment motion, the court found that the record did not contain sufficient evidence to support a claim that the UIM carrier lacked a reasonable basis for declining to pay UIM benefits to the Plaintiff and/or that it knew or recklessly disregarded any alleged lack of reasonable basis for denying the request for UIM benefits. 

Judge Nealon noted that “[a] dispute between an insurer and a claimant regarding the value of a UIM claim is not uncommon, and, standing alone, does not create a triable issue of fact as to the insured’s bad faith.” 

The court found that the facts before the court not only supported an objective conclusion that a reasonable carrier would have denied the Plaintiff’s UIM claim on the basis that her damages did to exceed $100,000.00, as evidence, in part, by the Plaintiff’s voluntary tort settlement of only $57,500.00 of the available $100,000.00 liability limits, but that the record was also devoid of any evidence that the UIM carrier knew or recklessly disregarded its alleged lack of a reasonable basis for denying the Plaintiff’s claim for benefits.  

As such, while the court ruled that the Plaintiff may still pursue a claim for UIM benefits, subject to a credit owed for the tortfeasor’s liability coverage limit of $100,000.00, the court was granting the UIM carrier’s Motion for Partial Summary Judgment relative to the Plaintiff’s bad faith claim. 

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

Zoom CLE Set for This Friday -- Holiday Themed Civil Litigation Update

 LACKAWANNA BAR ASSOCIATION

and 

TORT TALK

Present another One Hour ZOOM CLE

Friday, November 13, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

Free for LBA Members; Fee for Non-members: $60.00
(All fees go to the Bar Association)

Registration Limited to First 100 persons to Register

Registrants Will Be Able to Access the Tort Talk 2020 Civil Litigation Update Booklet on the Bar's website.

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:

Selected to List of the Top 10 Personal Injury Law Attorneys in all of Pennsylvania

Received a letter confirming that Daniel E. Cummins of Cummins Law in Clarks Summit (www.CumminsLaw.net) was selected to the 2020/2021 Best of the Best Attorney’s List of the Top 10 Personal Injury Law Attorneys for all of Pennsylvania. 

 This honor is reserved for lawyers who exhibit excellence in their practice and it was noted that less than .05% of the 1.3 million attorneys in the United States receive this distinction. 

I focus my practice on the defense of car accident and trucking accident matters, trip or slip and fall matters, products liability cases and medical malpractice cases.  New assignments and new clients are currently being accepted.

Judge Mannion of Federal Middle District Court Addresses Section 1983 Claims Relative to Police Entry into House in Response to Domestic Disturbance

In the case of Cost v. Borough of Dickson City, No. 3:-cv-1494 (M.D. Pa. Oct. 15, 2020 Mannion, J.), the court addressed summary judgment motions filed by a municipality and Defendant police officers in a §1983 Civil Rights litigation. The court granted the motion in part and denied it in part. 

According to the Opinion, the case arose out of a police response to a domestic disturbance. 

 The Defendant police officers asserted that they had knocked on the front door of the home numerous occasions to no response. The officers testified that, based upon the details of the 911 call, which included a notation that children were screaming, and given that, when the officers arrived on the scene and heard yelling and heard a female shouting the word “stop” inside of the residence, and given that everything then became quiet when they approached the front door, the officers eventually forced a door open after which certain individuals, including one of the Plaintiffs, were arrested. 

It was then determined that the disturbance involved an argument with the daughter of the family over a cell phone. 

After one of the Plaintiffs identified themselves within the home, that Plaintiff was released. The other Plaintiff refused to identify himself and was put in the police car to be transported to a processing center. That person was placed under arrest for Disorderly Conduct. Upon arrival at the processing center, that Plaintiff then identified himself and was released. Thereafter, a citation issued to that Plaintiff was dismissed after the officer failed to appear at the hearing. 

The Plaintiffs thereafter brought suit against the various Defendants with each Plaintiff alleging an unlawful search and seizure claim under the Fourth and Fourteenth Amendment, a Fourth Amendment excessive force claim, a state law assault and battery claim, and a Fourth Amendment and state law false arrest and false imprisonment claim, and a claim of inadequate supervision and training by the borough. The Plaintiff who had been taken for processing also alleged Fourth Amendment and state law malicious prosecution claims. 

After reviewing the current status of the law on these types of claims, the court granted the motions at issue in part and denied them in part. 

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

I send thanks to Attorney Patrick J. Murphy of the Scranton office of the Bardsley Benedict & Cholden, LLP law firm for bringing this case to my attention.

STILL TIME TO REGISTER FOR TORT TALK HOLIDAY THEMED CIVIL LITIGATION UPDATE CLE!

 

MONROE COUNTY BAR ASSOCIATION

Continuing Legal Education Committee

and 

TORT TALK

Present another One Hour ZOOM CLE

Tuesday, December 8, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

CLICK THIS LINK FOR REGISTRATION INFO

Technical Support Provided by:

HOLIDAY THEMED TORT TALK CIVIL LITIGATION UPDATE TO BE OFFERED IN MONROE COUNTY TOO (DECEMBER 8TH AT NOON)

  

MONROE COUNTY BAR ASSOCIATION

Continuing Legal Education Committee

and 

TORT TALK

Present another One Hour ZOOM CLE

Tuesday, December 8, 2020 at Noon

ENJOYING THE HOLIDAYS WITH TORT TALK:

A Holiday Themed Civil Litigation Update

(1 Substantive CLE Credit)

Presented By

Daniel E. Cummins, Esquire

of

Cummins Law

Clarks Summit, PA

MEMBERS AND NON-MEMBERS WELCOME

CLICK THIS LINK FOR REGISTRATION INFO

Technical Support Provided by:

Petition to Open Default Judgment Against a Defendant Denied

In the case of Hardy v. Best Buy, No. 961- Civil - 2019  (C.P. Monroe Co. Aug. 5, 2020 Williamson, J.), the court denied a Motion to Open a Default Judgment because the Defendant did not file its Motion in a timely fashion and also failed to demonstrate a good cause for the late filing of its Answer to the Plaintiff’s Complaint.

According to the Opinion, this case arose out of issues surrounding the Plaintiff’s purchase of a washing machine from the Defendant’s website in October of 2018. When the produce arrived at the Plaintiff’s home, it was discovered that the machine was damaged. The Defendant later informed the Plaintiff that the washer had been back ordered and, therefore, a new delivery date was delayed. 

When a new washer arrived, the Plaintiff discovered that this washer was damaged in the same manner of the previous one. The Plaintiffs contacted the Defendant and demanded the delivery of a washer within one (1) week. The Defendant failed to comply. 

The Plaintiffs then filed suit. 

The defense initially responded with Preliminary Objections and the court in addressing those objections required the Defendant to file an Answer within twenty (20) days. 

The Defendants filed an Answer with a New Matter in October of 2019. The Defendant then filed a Motion on February 12, 2020 seeking to open the default judgment. The defense asserted that it did not receive the default notice in a timely fashion as it was sent to the corporate office of the Defendant instead of to its legal counsel. 

The court rejected the defense position and found that the Defendants failed to meet the timeliness requirement. The court noted that the Defendant had notice of the default judgment for over a month before it field its Motion to Open. The court also noted that the defense failed to show good cause for the untimely filing of the Answer and New Matter. 

As such, the Motion to Open the Default Judgment was denied.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 22, 2020).