Thursday, December 17, 2020

ARTICLE: The Wheels Stopped Turning: An Unsettled Year All Around in MVA Law


This Year-End review article of mine on Motor Vehicle Accident Law in Pennsyvania was published by the Pennsylvania Law Weekly on December 17, 2020 and is republished here with permission.


The Wheels Stopped Turning: An Unsettled Year All Around in MVA Law

By Daniel E. Cummins | December 17, 2020


Daniel E. Cummins of Cummins Law.

While the wheels of motor vehicles stopped in large part for a time in 2020 as Americans cooped up at home and waited (and still wait) for the pandemic to subside, the wheels of justice kept turning in the form of notable decisions and developments in Pennsylvania motor vehicle accident law over the past year.

People Stopped Driving

Obviously, the rise of the COVID-19 pandemic was the news story of the year. In March and April of this year, the roads were mostly empty as people huddled up at home under unprecedented stay-at-home orders from the government.

Based on this drastic decrease in driving activity and the consequent dip in motor vehicle accidents, it is expected that there may be a reduction in auto accident claims in the future. However, the prospect of a downturn in auto accident claims and suits may be tempered by the fact that more limited tort claims may be pursued as a result as practitioners try to keep their numbers up. Whether the courts apply the serious injury threshold of the limited tort option to these cases will remain to be seen.

Law of Household Exclusion Unsettled

Back in 2019, the Pennsylvania Supreme Court handed down its decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which represented a seismic shift in auto accident law as that court attempted to eradicate the household exclusion for the benefit of plaintiffs. In 2020, disagreement flowed out of the lower courts as to the application of that decision outside of the facts of the Gallagher case. Some courts followed the Gallagher v. Geico decision as eradicating the household exclusion and others did not, instead choosing to rule that that decision should be limited to its facts.

In the Pennsylvania federal courts, several judges followed the Gallagher v. Geico decision in opinions they handed down in 2020. In the Eastern District Court case of LM General Insurance v. LeBrum, No. 19-2144-KSM (E.D. Pa. July 1, 2020 Marston, J.) (Mem. Op.), the court followed the decision issued in Gallagher v. Geico in denying a motion to dismiss a declaratory judgment issue pertaining to whether the injured the plaintiff’s claims for UIM benefits were barred by a household exclusion.

The court in LeBrum reviewed a number of trial court decisions indicating that the Gallagher v. Geico decision by the Pennsylvania Superior Court should be viewed broadly as well as those other decisions that have indicated that the decision should be interpreted narrowly. The court in this case indicated that, at the motion to dismiss stage, it was not inclined to interpret Gallagher’s holding narrowly.

In addition to following Gallagher’s eradication of the household exclusion, the court in LeBrum also held that the Gallagher decision could be applied retroactively. With regards to a statute of limitations defense asserted by the carrier on the Gallagher v. Geico issue, the court agreed that a four-year statute of limitations would apply on any retroactive claims.

In another household exclusion case from this year, National General Insurance v. Sheldon, No. 1:19-CV-212 (W.D. Pa. Sept. 29, 2020 Bissoon, J.), the carrier argued that the Pennsylvania Supreme Court’s decision in the case of Gallagher v. Geico was distinguishable from the issues presented in this case in that Gallagher involved the same insurance company on both insurance policies at issue and this case did not.

After reviewing the cases which have been decided since Gallagher, the judge in this Sheldon case out of the Western District Court of Pennsylvania found that this distinction was of no consequence. The court held ultimately that the household exclusion was not valid in this case under essentially the same analysis as in the Gallagher decision, i.e., that the household exclusion is invalid as a de facto waiver of stacked coverage where Pennsylvania’s MVFRL requires that an insured provide a written waiver of such coverage.

The district court’s decision in the Sheldon case contradicted a household exclusion decision that had been handed down by the same court earlier in the year. In the case of Dunleavy v. Mid-Century Insurance, No. 2:19-CV-1304 (W.D. Pa. May 19, 2020 Ranjan, J.), Judge J. Nicholas Ranjan of the Pennsylvania Western Federal District Court held that the Pennsylvania Supreme Court’s decision in Gallagher v. Geico did not apply to invalidate a household exclusion in this case where the insured had expressly waived UIM coverage on a motorcycle insured with another carrier.

The above review confirms that there is a split of authority in the federal courts on the ongoing validity of the household exclusion. Meanwhile, in the state court system, several trial court judges limited Gallagher v. Geico to its facts and decided to uphold the household exclusion as a valid exclusion to support a denial of UIM coverage.

For example, in the Lehigh County 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 granted summary judgment in favor of the carrier and denied the injured party’s motion for judgment on the pleadings in a declaratory judgment action regarding the household exclusion. The court ruled that Erie Insurance did not need to provide underinsured motorist coverage to the plaintiff given the application of the exclusion.

The court in the Mione case analogized the facts before it to be more consistent with the facts in issue in the Pennsylvania Supreme Court decision in Eichelman v. Nationwide Insurance, 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 still valid household exclusion in the auto insurance policy must be given its plain meaning and application.

The court in Mione also emphasized that, giving effect to the household exclusion would further legislative policy behind Pennsylvania’s Motor Vehicle Financial Responsibility Law [MVFRL] by holding the plaintiff to his voluntary choice of not purchasing UIM coverage under a separate motorcycle policy for the motorcycle involved in the accident.

The ongoing application of the household exclusion to preclude coverage was also found to be valid by Judge David J. Williamson in the Monroe County case of Erie Insurance Exchange v. King, No. 6937-CV-2019 (C.P. Monroe Co. Jan. 27, 2020 Williamson, J.). In the King case, the court applied a household exclusion despite the Gallagher case and ruled that the insurance company did not have to provide uninsured motorist benefits as a result.

In his opinion, Judge Williamson noted that, when one of the plaintiffs had purchased the policy with Erie Insurance, he had executed a waiver of stacked benefits and received a reduction in the premiums as a result. As such, the record confirmed to the court that the plaintiff had expressly waived the ability to stack his coverage over two or more separate policies.

Yet, there have been county court decisions in 2020 in which the court instead applied the Gallagher v. Geico decision and ruled that the household exclusion was invalid.

In the Lancaster County Court of Common Pleas case of Donegal Mutual Insurance v. Krautsack, No. CI-19-04904 (C.P. Lanc. Co. Aug. 28, 2020 Ashworth, J.), the court granted the plaintiff’s motion for summary judgment and denied the carrier’s cross-motion for summary judgment relative to issues surrounding the application of a household exclusion.

Lancaster County Court Judge David L. Ashworth applied the Gallagher v. Geico decision literally and noted that the Pennsylvania Supreme Court “unequivocally” held that household exclusions are unenforceable as a matter of law as the exclusion violated the requirements set forth in Pennsylvania’s MVFRL that a carrier secure a written waiver or rejection of stacked UIM coverage for such waiver or rejection to be valid.

In the separate case of Donegal Insurance v. Ricci-Lombardo, No. C-48-CV-2019-11724 (C.P. Northamt. Co. Oct. 22, 2020 Morganelli, J.), Judge John M. Morganelli of the Northampton County Common Pleas Court also ruled in favor of the insured in response to cross-motions for judgment on the pleadings in a declaratory judgment action brought by the carrier relative to the application of the household exclusion. The court followed the Gallagher decision and ruled that household exclusion could not be utilized by the carrier to act as a de facto waiver of stacked coverage.

It is anticipated that the lower courts will continue to see this issue again and again in the years ahead.

Regular Use Exclusion Is Under Attack

With their successes in their attack against the household exclusion through the Gallagher v. Geico decision, plaintiffs attorneys have been energized and have turned their sharp focus toward utilizing the rationale of the Gallagher decision to attack the regular use exclusion, i.e., that the regular use exclusion should be ruled invalid as a de facto waiver of stacked coverage when the MVFRL requires carriers to secure a written waiver of such coverage.

One such attack on this exclusion was rebuffed earlier this year in the case of Nationwide Affinity Insurance Company of America v. Fong, No. 2:19-CV-02119-CFK (E.D. Pa. April 28, 2020 Kenney, J.), in which that court upheld the carrier’s reliance upon the regular use exclusion.

In Nationwide v. Fong, Eastern Federal District Court Judge Chad F. Kenney held that the clear language of the regular use exclusion was not ambiguous and that the plain language of that exclusion clearly applied to bar coverage for any UIM coverage under the case presented.

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

Judge Kenney also made a point in Nationwide v. Fong to emphasize that the current Pennsylvania Supreme Court’s separate decision with respect to the household exclusion in the case of Gallagher v. Geico “does not affect Williams’s precedent, as the facts of Gallagher are wholly distinguishable to the facts in the [Nationwide v. Fong] matter, as conceded by the [injured party].”

In essence, in his decision in Nationwide v. Fong, Kenney followed decades of precedent under which the regular use exclusion had been repeatedly upheld as valid.

Then came chink in the armor of the regular use exclusion. In June of this year, Judge Stephen G. Baratta of the Northampton County Common Pleas Court case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.). granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that the carrier’s regular use exclusion was invalid under the MVFRL.

According to the opinion, the plaintiff in Rush was a police officer who was injured while driving a police vehicle that was regularly available for his use at work. After securing a recovery from the tortfeasor, the plaintiff was seeking a further recovery under his own UIM coverage under his personal automobile insurance policy. The carrier that issued that policy denied coverage in reliance upon the regular use exclusion contained in the personal policy. A declaratory judgment action was filed and the parties eventually filed cross-motions for summary judgment.

In Rush, Judge Baratta emphasized that the plaintiff had not executed any written UIM coverage or stacking waivers. The court went on to accept the plaintiffs’ de facto waiver of coverage argument, that is, the same argument raised in the Gallagher v. Geico context, and held the the regular use exclusion was similarly invalid.

The court in Rush also found that the regular use exclusion violated 75 Pa.C.S.A. Section 1734, which mandated the carrier to provide UIM coverage equal to the bodily injury coverage available absent a written waiver secured from the insured.

The Rush v. Erie Insurance decision is on its way up the appellate ladder for review by the Pennsylvania Superior Court. Whether that decision is a blip on the radar or the beginning of a split of authority on the regular use exclusion remains to be seen.

Another Notable Split of Authority

Another notable split of authority that dominated the court decisions in 2020 in Pennsylvania revolved around the extent to which recklessness could be pleaded in state court personal injury complaints.

In some more liberal decisions, such as those arising this year out of Philadelphia, Franklin, Northampton and Lackawanna counties, the trial court judges have relied upon dicta from the summary judgment decision in the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2008), to rule, at the preliminary objections stage, that claims of recklessness, or reckless conduct, can be pleaded with reckless abandon in any personal injury case whatsoever regardless of the underlying facts at issue. Those trial court judges believe that a claim of recklessness is an allegation that pertains to the state of the mind of the tortfeasor and that such claims are permitted to be pled generally under Pa.R.C.P. 1019.

Over the past year, other trial court judges, such as those in Monroe and Susquehanna counties, have instead adhered to the long-established principle that Pennsylvania is a fact-pleading state and have required that plaintiffs to instead allege sufficient facts in support of claims of reckless conduct, i.e., those same types of outrageous facts necessary to support a claim for punitive damages.

In his decision in the case of Seber v. Kline, No. CI-20-03109 (C.P. Lanc. Co. July 1, 2020 Brown, J.) Judge Leonard G. Brown III of the Lancaster County Court of Common Pleas took a middle ground on the issue in a rear end accident case.

In Seber, Brown referred to the Archibald v. Kemble decision for the proposition that, under Pennsylvania tort law, recklessness is subsumed by and sounds in negligence. Brown noted that the Superior Court in Archibald stated that, “even though we hold [the plaintiff] must prove [the defendant] acted recklessly, the cause of action remains, sounding in negligence.”

Brown also separately acknowledged in his decision in the Seber case that recklessness may be pled generally under Pa. R.C.P. 1019(b) as a condition of the mind in some cases. However, Brown went on to note that there are “Two distinct types of recklessness. The first allows for punitive damages, and the second does not.”

The court noted that the first type of recklessness, which may support claims of punitive damages, involve cases where the actor knows, or has reason to know of facts which create a high degree of risk of harm to another, and the actor still deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference in that that risk.

Brown noted that the second type of recklessness is “where the actor has such knowledge or reason to know the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.”

Brown ruled that in this matter that the facts alleged by the plaintiff in a matter involving a standard rear-end accident were “legally insufficient to support a demand for punitive damages” and that simply pleading words such as ‘reckless,’ ‘wanton,’ or ‘willful’ did not change the result. More specifically, Brown ruled that “even when read in the light most favorable to the plaintiffs, no facts averred in the complaint point to this being a case of more than mere negligence.”

Rather, the court found that the facts pled in this simple rear-end accident case are the same types of facts used to support a showing of mere negligence only. As such, the court granted the defendant’s preliminary objections to the claims of recklessness, gross negligence, and for punitive damages and struck them from the complaint without leave to amend.

It should be interesting to see how this pleadings issue continues to play out in the year ahead.

Uber Deemed to Be an Employer of Its Drivers

In the case of first impression of Lowman v. Unemployment Compensation Board of Review, 235 A.3d 278 (Pa. July 24, 2020), the Pennsylvania Supreme Court held, as a matter of first impression, that Uber “controlled and directed the performance of Lowman’s services as a driver-for-hire” and that Donald Lowman was not engaged in an independently established business.

As such, the Pennsylvania Supreme Court essentially found that the driver’s work for Uber was completed within employment with Uber and not as an independent contractor. Uber’s argument that the driver was acting in self-employment was rejected.

Some commentators note that this decision may have an impact in personal injury litigation in terms of whether a ride-sharing company can be sued in a motor vehicle accident case as an employer of the defendant driver.

Still Waiting for Post-’Koken’ Appellate Guidance

It has been 15 years since the Insurance Federation of Pennsylvania v. Koken, 889 A.2d 550 (Pa. 2005), decision was handed down and, to date, the only appellate decision handed down has been the Pennsylvania Superior Court’s decision seven years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied 78 A.3d 1147 (Pa. 2014). In that case, the Superior Court suggested that, in some circumstances, it would not be improper to have a post-Koken trial involving both the third party defendant and a UIM carrier defendant in front of the same jury. Regrettably and inexplicably, the Pennsylvania Supreme Court denied allocatur in that case and missed an opportunity to present much needed appellate guidance in this area of law.

Meanwhile, there remains an equal split of authority amongst county trial courts on the issue of whether post-Koken cases involving combined cases against third party defendants and UIM carrier defendants should remain consolidated or severed. According to the ‘Post-Koken Scorecard’ found on the Tort Talk Blog (www.TortTalk.com), at least 24 county courts have ruled in favor of the continued consolidation of these types of cases through discovery and at least 24 county courts have ruled in favor of the severance of such claims.

The Post-Koken Scorecard also confirms that, in those combined post-Koken cases that also include bad faith claims against the UIM carrier, at least 10 county courts have ruled in favor of the continued consolidation of these cases up to the time of trial, and at least 22 county courts have ruled in favor of severing out the bad faith claims. Of those courts that have followed the majority rule in favor of severing out the bad faith claims there remains a split of authority as to whether bad faith discovery should still be allowed to proceed while the underlying UIM claim is pending.

There is also a split of authority across Pennsylvania on the issue of whether a post-Koken trial involving both a third party tortfeasor defendant and a UIM carrier should be allowed to proceed in a consolidated fashion or instead be bifurcated. Moreover, the trial court judges continue to craft their own jury instructions for these types of cases.

The hope remains that some of these post-Koken cases that proceed to verdict will thereafter head up the appellate ladder and generate some much needed appellate guidance in 2021.

Here’s to also hoping that appellate guidance is forthcoming in the year ahead on all of the other issues reviewed above as well.

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.

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