Tuesday, January 19, 2021

Release Signed by Plaintiff Found to Preclude Other Claims

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment. 

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart. 

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00. 

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver. 

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image: www.lexisnexis.com

Monday, January 18, 2021

Volunteer Jurors for Virtual Mock Trial Competition Needed in Lackawanna County


Pennsylvania Supreme Court Declines to Adopt Continuous Representation Rule for Attorney Malpractice Claims

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable to a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule. 

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time-barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Friday, January 15, 2021

Admissibility of Similar Expert Opinions in a Medical Malpractice Case

In the case of Snyder v. Scranton Hospital Company, LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 14, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the admissibility of the expert testimony in a medical malpractice case. 

This matter arises out of a malpractice action during which the Plaintiff alleges that he suffered permanent left ulnar damage secondary to stretching or compression trauma caused by his improper positioning and inadequate monitoring during the course of a surgery.

In support of his claims, the Plaintiff has produced expert reports from an anesthesiologist, a rheumatologist, and a nurse with regards to the relevant standards of care and medical causation, along with additional expert reports from orthopedic surgeons concerning causation and the allegedly resulting damages.

The Defendants filed a Motion In Limine seeking to limit the expert testimony that the Plaintiff intended to present. More specifically, the Defendant sought to preclude any testimony by the rheumatology expert with regards to the standard of care and causation issues. The Defendants asserted that this expert should not be permitted to testify as he is not qualified to offer opinions on the standard of care and causation under the mandates of the MCARE Act, that the expert’s opinions would be cumulative in light of the opinions being offered by the Plaintiff’s other experts, and given that the rheumatologist expert's testimony was impermissibly speculative.

After his review of the record and the expert reports, Judge Nealon found that the rheumatologist expert offered by the Plaintiff did not satisfy the standard of care familiarity, same subspeciality, and similar approved board-certification requirements set forth in §512(c) of the MCARE Act, or the “related field of medicine” criteria in §512(e) of that Act, in order to be determined to be competent to address the standard of care under the facts of this case.

However, the court also found that the rheumatologist expert offered by the Plaintiff was sufficiently qualified under §512(a)(b) of the Act in order to testify as to the medical causation.

The court additionally noted that, since the causation opinions offered by the various different types of experts presented by the Plaintiff contained discrete reasoning offered by different types of medical specialists addressing the issue of causation from distinct clinical perspectives, the causation testimony of these different experts was found to be corroborative, rather than needlessly cumulative.

The court additionally found that the defense challenges to the rheumatologist's testimony based upon Pa. R.E. 703 and Pa. R.C.P. 207.1 under an argument that the testimony was impermissibly speculative was devoid of merit. The court noted that the rheumatologist’s opinions were based upon medical reports, depositions, and other evidence in the record. It was also noted that the expert did not rely upon novel scientific evidence or methodology that has not been accepted in the field of rheumatology.

As such, the court ruled that the rheumatologist would not be allowed to testify as to the applicable standard of care, but would be allowed to testify on the causation issues.

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

Lack of Informed Consent Claim Dismissed

In the case of Fritz v. BNG Aesthetics, LLC, No. CV-20-0553 (C.P. Lycoming Co. Oct. 28, 2020 Linhardt, J.), the court granted a Defendant’s Preliminary Objections to a Plaintiff’s medical malpractice claim of a lack of informed consent relative to a laser procedure to treat the Plaintiff’s vision issues. 

The court ruled that the Plaintiff’s lack of informed consent claim against the Defendant doctor lacked the specificity required to establish that the doctor not only provided her with negligent treatment but also knowingly provided her with a different treatment than had been discussed with the Plaintiff.

The court noted that a claim for informed consent is treated as a “technical battery” under Pennsylvania law due to an unwanted testing.

Since the court found that the Plaintiff’s lack of consent/negligence claim was not properly pled, the court did not delve into the validity of the claim for punitive damages.

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

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

Source of Image:  Karolina Growbaska on www.pexels.com

Thursday, January 14, 2021

A Pennsylvania Superior Court Panel Applies the Household Exclusion Despite Gallagher v. GEICO

An apparent split of authority has developed within the Pennsylvania Superior Court on whether the Pennsylvania Supreme Court’s decision in Gallagher v. GEICO serves to eradicate the Household Exclusion across the board or is a decision that should be limited to its facts.

Tort Talkers may recall the recent November 18, 2020 decision by a panel of Superior Court Judges in the case of Erie Ins. Exch. v. Petrie in which that panel held that the Gallagher v. GEICO decision applies across the board and should not be limited to its facts at least in respect to 75 Pa.C.S.A. Section 1738.  The Tort Talk post on that case, which contains a link to that decision, can be viewed by clicking this LINK.

Now comes Erie Ins. Exch. v. King, No. 648 EDA 2020 (Pa. Super. January 13, 2020 Kunselman, J., King, J., Colins, J.)(Non-precedential)(Op. by King, J.), the Superior Court held that the household exclusion in an Erie Insurance Company’s policy was enforceable at least under the separate context of 75 Pa.C.S.A. 1731.

In King, the Plaintiff was operating a Peterbilt truck, in which Cora Labar (the niece of his girlfriend) was a passenger in the vehicle.

The truck was insured by a policy issued by Sentry Select and issued to “Night Train Express, Inc.” The two individuals in the truck were involved in an accident caused by an uninsured driver.

Both claimants made a claim for, and received, uninsured motorists (“UM”) benefits from the Century Select policy.

Both Plaintiffs then made a claim for UM benefits under a personal auto policy issued by Erie Insurance to King and his girlfriend.

The carrier denied coverage based upon (1) the fact that a form rejecting stacked UM coverage had been executed, and (2) under an application of the household exclusion.

In this declaratory judgment action, the trial court granted Erie judgment on the pleadings, and the Superior Court affirmed.

In this King case, the Superior Court determined that the claim did not involve stacking, as, under Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180 (Pa. 2008), the Claimants were “guest passengers” in the Peterbilt truck, and therefore, the Century Select policy formed the first layer of UM coverage, and the Erie policy formed the second layer of UM coverage.

The Superior Court in King then explained that, as this case did not involve stacking, the Gallagher v. Geico case did not apply. Therefore the household exclusion was not found to be invalid, and, based upon an application of the household exclusion to the facts of this case, there was no coverage found to be due under the Erie Policy.

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

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

Court Addresses Policy Definition of "Bodily Injury" in Context of Opioid Cases

In the case of Giant Eagle, Inc. v. Am. Guarantee & Liab. Ins. Co., No. 2:19-CV-00904-RJC (W.D. Pa. Nov. 9, 2020 Colville, J.), the court ruled that the Defendant insurance company had a duty to defend the Plaintiffs in multiple lawsuits where the Plaintiffs asserted claims of “bodily injury” allegedly caused by the insured’s distribution and sale of prescription opioids. 

The Defendant carrier argued that the Plaintiffs’ Motion should be denied as the Plaintiff failed to meet their burden of establishing that the Complaints in the underlying lawsuits sought damages for “bodily injury” caused by a single “occurrence” that first manifested during the periods of coverage.

In denying the carrier’s Motion, the court pointed to several court decisions which have interpreted similar “bodily injury” insurance policy provisions in conjunction with similar opioid and epidemic lawsuits and found that those underlying lawsuits that were seeking damages due to claims of "bodily injury."  The court found that the carriers in this case failed to sufficiently distinguish those cases.

More specifically, the court found that, although the particular Plaintiffs in these lawsuits did not allege that they personally suffered bodily injury or damages, those Plaintiffs were still seeking damages because of claims arising out of a "bodily injury."   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Borough May Face Liability for Covering Stop Sign by Snow Removal Efforts

In the case of Cupelli v. Borough of Dunmore, No. 1662-C.D.-2019 (Pa. Cmwlth. Dec. 21, 2020 Jubelirer, J., Wojcik, J., and Cannon, J.) (Op. by Cannon, J.) (Opinion not reported), the court found that snow negligently plowed by a borough can create an artificial accumulation based upon which a Plaintiff may assert a cause of action where that artificial accumulation of snow renders a traffic control device ineffective or unsafe. 

According to the Opinion, the Plaintiff was injured when the all-terrain vehicle (ATV) on which he was a passenger collided with a motor vehicle accident at the intersection of two (2) public roadways.

In the personal injury Complaint filed by the Plaintiff it was allowed the Borough had improperly piled snow in the area of that intersection and that such pile of snow resulted in the accident. More specifically, the Plaintiff alleged that the Borough’s workers failed to maintain a stop sign or the area around the stop sign at the intersection in that they had plowed snow to such heights around the stop sign as to create a reasonably foreseeable risk of injury. The court came before the appellate court by way of an interlocutory appeal by permission after the lower court’s rulings on Preliminary Objections asserted by the defense.

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

I send thanks to Attorney Bruce S. Zero of the Scranton office of Powell Law for brining this case to my attention.

Source of image:thesunchronicle.com

Wednesday, January 13, 2021

Filing Entry of Appearance and Demand for Jury Trial in Federal Court Does Not Result in Waiver of Service of Process Defenses

In the federal court case of Orner v. International Laboratories, Inc., No. 1:20-CV-00449 (M.D. Pa. Nov. 16, 2020 Wilson, J.), the court denied a Motion to Dismiss.

Notably, the court ruled that the filing of an Entry of Appearance and a Demand for a Jury Trial does not waive objections that a Defendant may have to any issues surrounding service of process.

In any event, the court found that the service of process in this matter was successful. 

This decision is also notable for the court's rulling that a Plaintiff may serve the Defendant with the original state court process even after the Defendant had removed the action to federal court.

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

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

Federal Court Allows For Attorney's Fees to Plaintiff's Attorney on a Contingency By Figuring Out an Hourly Rate

In the case of King v. Alpha Sigma Tau Nat’l Found. Inc., No. $:20-CV-00778 (M.D. Pa. Dec. 1, 2020 Brann, J.), the court ruled that 28 U.S.C. §1447(c) allowed the Plaintiffs to recover attorney’s fees in a federal court action even when the Plaintiffs were represented on a contingency. 

The court awarded attorney’s fees to the Plaintiff after remanding a case to the state court that the Defendants were found to have improperly removed to the federal court.

This matter arose out of allegations that the Plaintiff’s college age son died during a fraternity rush party.

The court rejected the Defendant’s argument that the language of the statute limited attorney’s fee awards to only those fees that were actually incurred by a party. The Defendants had argued that, since none of the fees were technically charged to the Plaintiff, who was represented on a contingency, the Plaintiff was excluded from recovering any attorney’s fees under the statute. As noted, the court disagreed and pointed to other circuit court decisions allowing Plaintiff to recover attorney’s fees even when they were represented on a contingency.

Notably, the court also reviewed other decisions within the Middle District of Pennsylvania and came to a determination that the reasonable hourly rate for an attorney in this forum, and more particularly in the Williamsport, Pennsylvania area, range from $180.00 to $325.00 per hour, depending upon the skill, expertise, and experience of the attorney working on the case at hand.

In the end, $11,377.75 in attorney’s fees was awarded, as well as additional compensation for money spent on an expert.

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 (Dec. 17, 2020).

Tuesday, January 12, 2021

ARTICLE: Hone your Courtroom Performance and Trial Skills

Here is a LINK to my article that appears in the current January/February edition of the Pennsylvania Lawyer magazine entitled "Hone Your Courtroom Performance and Trial Skills."

The article confirms how serving as a juror in the High School Mock Trial Competition put on by the Young Lawyers' Division of the PBA, and run by most county Bar Associations, can improve any attorney's skills as a litigator in the Courtroom.

Please support the Mock Trial Competition by contacting your local bar association for more information on how to participate.  As this year's competitions will be held virtually, you can participate from the comfort of your own office or home.

By participating you will be doing a good deed and and also helping yourself by reminding yourself of proper trial procedures and etiquette.

Volunteer Jurors and Judges Needed for Upcoming Virtual Mock Trial Competition in Lackawanna County


Claim Under All-Risk Policy For Coverage for COVID-Related Business Losses Dismissed

In the case 4431, Inc. v. Cincinnati Ins. Co., No. 5:20-CV-04396 (E.D.  Pa. Dec. 3, 2020 Leeson, J.), the court dismissed a Plaintiff’s Complaint for failure to state a claim in a case where the Plaintiff was seeking insurance coverage for COVID-related business income losses.  The court found that there was a lack of evidence of any direct “physical loss” required to implicate the coverage provisions of the policy.   

Judge Joseph F. Leeson, Jr.
E.D. Pa.

According to the Opinion by Judge Joseph F. Leeson, Jr., the Plaintiffs were owners and operators of restaurants in Pennsylvania that were forced to close due to state orders issued in response to the COVID-19 pandemic.  Those closures allegedly resulted in losses for each restaurant. 

The Plaintiffs sought a recovery under their “all risk” property insurance policies with the carrier.   The Complaint in this matter contained both a request for a declaratory judgment as well as breach of contract claim.   

The court additionally noted that, where a federal court Complaint contains claims for both legal and declaratory relief, a district court must determine whether the legal claims are independent of the declaratory claims.  If the legal claims are found to be independent, the court has an obligation to hear those claims, subject to exceptional circumstances.   However, if the legal claims are dependent upon the declaratory claims, the court retains the discretion to decline jurisdiction of the entire action.   

In this matter, the court found that the Plaintiffs’ breach of contact claim was independent of their claim for declaratory relief in that the breach of contract claim was sufficient in and of itself to invoke the court’s subject matter jurisdiction and was capable of being adjudicated without the requested declaratory relief.    

The court went on to find that the Plaintiff’s were not entitled to coverage under the policy because their premises had not suffered a direct “loss” as that term was defined in the policies as “accidental physical loss or accident physical damage.”  

Judge Leeson referred to two (2) other recent cases from the Eastern District of Pennsylvania reaching the same result when construing similar contractual language.   

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 (Dec. 24, 2020).  

Monday, January 11, 2021

Trial Court Requires Facts to be Pled to Support New Matter Defenses

In the case of Barnes v. Williamsport Petroleum, Inc., No. 20-0092 (C.P. Lycoming Co. Oct. 22, 2020 Linhardt, J.), the court sustained a Plaintiffs’ Preliminary Objections asserted against a Defendant’s affirmative defenses listed in a New Matter as such defenses were pled without any factual support. 
The court allowed the Defendants to file an amended pleading to contain factual allegations rather than a boilerplate listing of defenses in the New Matter.

This matter arose out of a slip and fall event.

The court agreed with the Plaintiff’s argument that facts were required to support New Matter defenses and that it would be inequitable to put the burden on the Plaintiff to conduct discovery to disprove a factually unsupported allegations, rather than requiring a Defendant to put forth some facts in the first place to support the defenses asserted.

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

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

Source of image:  Photo by Sora Shimazaki on www.Pexels.com

Complaint Need Not Be a Tell-All Tome

In the case of Greene v. Pennsylvania Power Co., No. 10336 of 2020, C.A. (C.P. Lawr. Co. Oct. 29, 2020 Hodge, J.), the court overruled the Defendant’s Preliminary Objections attacking a Plaintiff’s negligence Complaint primarily under arguments of a lack of sufficient specificity on the elements of a causation of negligence.

According to the Opinion, the decedent died as a result of an accident that occurred when he reported to work as a bus driver and was assigned to drive an empty bus for a practice run. As the decedent rounded a curve on the roadway, his side mirror sideswiped a utility pole near the edge of the roadway. That impact allegedly caused several high voltage wires to fall to the ground and onto the bus. The decedent suffered severe burns from an electrocution and died the same day.

A lawsuit was filed on behalf of the decedent claiming negligence against the companies responsible for the power lines.

The Defendants filed Preliminary Objections challenging the sufficient of the allegations in the Plaintiff’s Complaint.

The court ruled that while Pa. R.C.P. 1028(a)(4) does set a high bar of what must be alleged in a Complaint in order to allow a Complaint to proceed, the rule does not require “a tell-all chronicle verbosely stuffed with details” or an exhaustive inventory of the evidence underlying the claim presented.

The court found that the allegations in this Complaint were sufficient to enable the Defendants to prepare their defense to the claim presented.

The Complaint outlined the identity of the Defendants and asserted that those Defendants owned, operated and maintained the subject utility pole and that the Defendant’s breached their duty of care to maintain them safely. The Complaint also described a number of ways in which the Defendants allegedly deviated from that duty, including the placement of the pole near the roadway and in an unsafe condition.

The court also rejected the Defendants’ objections to the Complaint based upon the case of Connor v. Allegheny Hospital. After reviewing the Plaintiff’s Complaint in detail, the court did not find any vaguely worded, catch all allegations. As such, the Preliminary Objections were denied in this regard as well.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 15, 2020).

Friday, January 8, 2021

Judge Nealon of Lackawanna County Addresses Admissibility of Liability Expert in Trucking Accident Case

In the case of Hand v. DiMauro, No. 15-CV-4470 (C.P. Lacka. Co. Dec. 22, 2020 Nealon, J.), the court addressed several notable issues in a rear-end collision case involving a tractor trailer. 

According to the Opinion, the Defendant driver and his employer filed motions seeking to preclude the trucking safety expert’s opinions pursuant to Pa. R.E. 702(c) and Pa. R.C.P. 207.1 on the grounds that the expert’s methodology was allegedly not generally accepted in the motor carrier industry.  In the alternative, the Defendants sought to depose the expert under Pa. R.C.P. 4003.5(a)(2) in support of their Motion to Preclude.

The court ruled that the evidence submitted by the parties did not establish that the Plaintiff’s expert relied upon any novel scientific evidence or a methodology that has failed to gain general acceptance in the commercial transportation industry. 

Rather, the court found that the Plaintiff’s expert relied upon studies conducted by transportation safety organizations along with policies adopted by large commercial transportation companies and insurance companies. The expert recognized and applied a trucking industry standard requiring the removal of a commercial driver from service based upon certain a number of prior preventable crashes and traffic violations within a certain period of time.

The court therefore found the defense's Motion to Preclude the Plaintiff’s Expert Opinion to be without merit. As such, the court saw no need for an evidentiary hearing on the validity of the expert opinion or any reason to allow for a deposition of the expert.

The Defendants had also filed a Motion for Partial Summary Judgment that was addressed in this Opinion as well. 

In that motion, the Defendants sought the dismissal of any direct negligence claims against the employer for negligent supervision or retention of its driver, and all recklessness and punitive damages claims against the driver and his employer.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon granted the Motion for Partial Summary Judgment with regards to the Plaintiff’s claims of recklessness and punitive damages against the driver as no evidence of any reckless conduct by the driver was produced in the record. 

However, the court noted that the record did contain sufficient evidence, including opinions of an industry expert, to allow the claims of direct negligence, recklessness, and punitive damages to proceed against the Defendant employer.

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

Source of image:  Photo by Matthew T. Rader from Pexels.com

ARTICLE: "Mixed Results in Recent Ski Resort Liability Cases" By Daniel E. Cummins


There's a saying -- "Skiing....the only sport where you spend an arm and a leg to break an arm and a leg."

Here is a LINK to my recent article entitled "Mixed Results in Recent Ski Resort Liability Cases" which was published in the December, 2020 edition of Counterpoint, the newsletter for the Pennsylvania Defense Institute.

If you wish to review any of the decisions noted in the article, please go to www.TortTalk.com and type the Plaintiff's name into the "Search This Blog" Box in the upper right hand corner and then click on the word "Search."  That will take you to the Tort Talk blog post on that case, in which you should find a link to the actual decision.

Source of Image:  www.stories.avvo.com

Thursday, January 7, 2021

Corrected Link for Bogats v. State Farm Decision

Here is the corrected LINK the case of Bogats v. State Farm Mut. Auto. Ins. Co., No. 2:18-CV-708 (W.D. Pa. Nov. 30, 2020 Cercone, J.), that was summarized on Tort Talk yesterday and in which the court dismissed a bad faith claim based upon allegations of poor claims handling in a UIM matter. 

Apologies for the incorrect Link yesterday.

UIM Bad Faith Claim Dismissed Where No Evidence Found Sufficient To Allow Claims to Proceed

In the case of Bogats v. State Farm Mut. Auto. Ins. Co., No. 2:18-CV-708 (W.D. Pa. Nov. 30, 2020 Cercone, J.), the court dismissed a bad faith claim based upon allegations of poor claims handling in a UIM matter.

In part, the Plaintiff alleged bad faith in that the carrier allegedly failed to disclose that the Plaintiff’s stepson also had an automobile insurance policy with the carrier at the same time, which would considerably increase the potential UIM coverage.

According to the Opinion, the stepson’s policy was listed to a different home address. The stepfather advised the carrier that this was not accurate and an investigation into the stepson’s address ensued. The carrier ultimately agreed that there was additional UIM coverage available under the stepson’s policy. However, the carrier concluded that there was no factual basis to increase the settlement offer based upon the evidence presented.

The court found no support for the Plaintiff’s allegation that the carrier had misled the stepfather-insured into thinking there was less coverage then was actually available. The court also found no support for any reckless or intentional misconduct on the part of the carrier to support a bad faith claim.

The court otherwise found that the carrier’s claims handling was reasonable in that it considered multiple requests by the Plaintiff to re-evaluate the claim and had also agreed to the additional UIM coverage without significant delay once the actual address of the stepson was verified.  

Also, no evidence was found to support the argument that the carrier had engaged in course of conduct with intent to promote the carrier’s financial interests over its fiduciary duties to the Plaintiffs, or that the carrier had recklessly pursued a course of conduct that evidence bad faith towards its insured.

As such, the Plaintiff’s bad faith claims were dismissed.

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

I send thanks to Attorney Lee Applebaum Philadelphia law firm of Fineman, Krekstein & Harris. Attorney Applebaum is the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, which can be viewed HERE.

Wednesday, January 6, 2021

Court Rules That Plaintiff's Complaint Is Detailed Enough


In the case of T.D.A.P. v. Lawrence County Soc. Serv., Inc., No. 10071 of 2020, C.A. (C.P. Lawr. Co. Oct. 7, 2020 Hodge, J.), the court overruled a Defendant’s Preliminary Objections asserted against a premises liability Complaint filed by the Plaintiff.

According to the Opinion, the Plaintiff’s child was enrolled at an early learning center. The child was at the center and under the care of the Defendant when he was injured in the facility’s gymnasium.

The Plaintiff filed a personal injury lawsuit and the Defendant responded with Preliminary Objections alleging that the Plaintiff’s were not sufficiently specific. The defense asserted that it could not prepare an adequate defense because the Complaint did not provide enough facts regarding how the minor Plaintiff fell, how the fall led to his alleged injuries, or how the Defendant’s conduct contributed to those injuries.

The Plaintiff responded by asserting that the Complaint did contain enough facts in this regard.

After reviewing the Complaint, the court found that the Complaint alleged that the Defendant, as the operator of a daycare center, had the duty to supervise children under its care and to protect them from harm. The Plaintiff had also alleged that the child was on the premises as a registered student in the Defendant’s program when the incident occurred. It was additionally noted that the Plaintiff had alleged that the Defendants failed to provide adequate supervision to ensure that the child was not injured. The court also found that the causal relationship between the Defendant’s alleged conduct and the child’s injuries was easily implied from the facts presented. It was also noted that the Plaintiff’s Complaint gave details about the child’s injuries and the various treatments provided.

The court rejected the Defendant’s argument that the Complaint should have provided more details about the fall down event, such as, how it occurred, what activity immediately preceded it, and what the Defendant’s staff members were doing at the time.

The court noted that such a level of detail was not required in the Complaint. Rather, the Complaint contained all of the facts necessary to support the elements of a negligence claim and that the parties could use the discovery process to discover additional information.

Based on these rulings, the Defendant’s Preliminary Objections were overruled.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).


Claim Against Insurance Agent For Failing to Sell Insurance That Would Cover Business Interruption Claims Caused by COVID-19 Allowed to Proceed

In the case of Brown’s Gym, Inc. v. The Cincinnati Insurance Company, No. 20-CV-3113 (C.P. Lacka. Co. Dec. 18, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas overruled an insurance agent’s Preliminary Objections filed in a case in which a gym and fitness center, which was required to close its premises and cease its business operations in compliance with the government orders issued in response to the COVID-19 pandemic.

In addition to suing its commercial insurer under a declaratory judgment action seeking coverage for its pandemic related losses under an “all risk” policy, the gym also sued its insurance agent under claims of negligence and negligent misrepresentation for failing to provide the gym with the insurance coverage it allegedly requested. 

Based upon a review of the allegations of the Complaint, the court noted that the insurance agent arguably breached its duty to exercise reasonable care, skill, and judgment in securing and providing insurance coverage that was specifically requested by the gym. The court additionally ruled that the insurance agent need not be a named party to the insurance contract in order for the gym to state valid claims of negligence against the agent.

As such, the court overruled the Preliminary Objections in the nature of a demurer filed by the insurance agent.

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

Tuesday, January 5, 2021


Most Tort Talkers receive their Tort Talk info by way of email. If you are not already an email subscriber to Tort Talk and would like to become one (it's FREE!), please go to Tort Talk at www.TortTalk.com and insert your email address into the Email Subscription box in the upper right hand corner of the blog and follow the instructions to complete the process.

Once you are up and running, you will automatically receive the updated posts added to Tort Talk (1-3 per week) on notable cases and trends in Pennsylvania Civil Litigation Law.

Tort Talk is not only a way to get updates on new cases and trends, it can also serve to kickstart your research if you actually go to the Tort Talk site at www.TortTalk.com.  

On the site itself there are a number of research tools to help you find the case(s) or article(s) you are looking for.

Please note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue(s) presented elsewhere to ensure that you have a thorough review of the area of law in question.  Also, any case you find should be "Shepardized" to see if there has been any more recent, adverse rulings.

Here are the research tools available on Tort Talk to kickstart your research:

Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. By typing in your search term in the white box (delay damages, limited tort, slip and fall, or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on the Link in each post that comes up to read the actual decision of the court.   If the blog post does not have a Link to the decision but instead notes that you can email me for a copy, please do not hesitate to send me an email request for a copy of the decision.

Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."

Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Also further down on the right hand column of the Tort Talk blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  The topics, or Labels, are listed in alphabetical order.  By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic.

Published Articles

If you type the word "Article" in the Search Box on the upper right hand corner of the blog, you will get to a number of different articles on various civil litigation issues.

You can get more specific in your search for an article as well, such as typing "Article recklessness," and that will bring you to an article on that topic.


Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.

Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support.  Please feel free to send me a copy of any notable decisions you may generate in your practice for possible highlighting here on Tort Talk.

If I should be able to you help out in any way, please do not hesitate to contact me at dancummins@CumminsLaw.net.  

Please also contact me should you need any help with setting up a Mediation with Cummins Mediation Services.

Motion to Compel Facebook Discovery Denied in Lycoming County Case

Here's a Facebook Discovery decision -- the first one seen here in a while.  

To date, there still has not been any notable Pennsylvania appellate court decisions addressing this issue.  There are a slew of state and federal trial court decisions on the issue, many of which can be viewed on Tort Talk.

Please note that you can always review Facebook Discovery decisions on the Tort Talk Facebook Discovery Scorecard by going to www.TortTalk.com and scrolling down the right hand column until you get to "Facebook Discovery Scorecard" and click on the date under that.

In the case of Harkey v. Stojakovich, No. CV-19-1295 (C.P. Lycoming Co. Oct. 26, 2020 Linhardt, J.), Judge Eric R. Linhardt of the Lycoming County Court of Common Pleas addressed a Defendant’s Motion to Compel Facebook Discovery from a Plaintiff in a tractor trailer accident case. 

According to the Opinion, the Plaintiffs filed a lawsuit against the Defendant tractor trailer driver and the tractor trailer driver’s company after the tractor trailer driver was involved in an accident with the Plaintiff who was operating the motorcycle.

During the course of discovery, the Defendants filed a Motion to Compel, including with respect to demands for copies of all of the Plaintiff’s social media postings. The defense asserted that all of the Plaintiff’s social media postings were relevant and discoverable because the Plaintiff claimed that he suffered physical disability, loss of life’s pleasures, difficulty walking, and loss of earnings as a result of the accident.

According to the record, the Plaintiff’s social media postings allegedly showed the Plaintiff taking multiple trips after the accident, including motorcycle rides. The social media post also showed the Plaintiff engaging in work at a restaurant and bar. 

Judge Linhardt noted that there was no appellate guidance on point and that the issue of the discoverability of social media postings had not been previously addressed in Lycoming County.   

Judge Linhardt reviewed cases from other Pennsylvania trial courts and reiterated the rule that, generally speaking, the parties seeking discovery of the non-public information on a party’s social media account is required to show a “factual predicate” that the sought after information could be relevant by demonstrating that relevant information has been posted on the publicly available portions of the website. 

However, the court ruled that, while the Defendants made a threshold showing that the Plaintiff’s social media account information could be relevant of the case at hand, the defense requests for the production of all of the postings from the Plaintiff’s social media sites lacked the requisite particularity for discovery requests necessary to avoid undue embarrassment and burden upon the Plaintiff and potential third parties.

As such, the defense Motion to Compel was denied in this instance.

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

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

Monday, January 4, 2021

Judge Terrence R. Nealon Rejects Plaintiff's Request To Have His Children and Grandchildren on Screen To Watch His Jury Trial

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas has issued an interesting decision regarding the logistics of a civil trial being conducted with COVID-19 Pandemic restrictions and precautions in place.

In Lackawanna County, certain larger courtrooms have been designated for use during trials due to the ability to allow for social distancing.  The additional measure of spreading the jury out in the jury box and out into the gallery has led the court to utilize technology to stream the trial proceedings to monitors and screens in other rooms in the courthouse in the event members of the parties' families or members of the public wish to view the proceedings.

In the medical malpractice case of Snyder v. Scranton Hospital Co., LLC, No. 19-CV-83 (C.P. Lacka. Co. Dec. 31, 2020 Nealon, J.), the Plaintiffs filed a motion in limine seeking to have the court allow a displaying of the Plaintiff's children and grandchildren on monitors and screens in the courtroom via the Zoom videoconferencing platform during the course of opening statements and the closing arguments.  

The Plaintiffs' stated purpose behind this request was to allow the Plaintiff's attorney to introduce the family to the jury, to enable the jury to see and understand that the Plaintiff had a close knit and supportive family, and also to allow the family members to observe the openings and the closings.

The Defendants opposed the Plaintiff's request and asserted that the Plaintiff's request served no legitimate evidentiary purpose and was instead designed to inflame the jury from the outset of the trial and to garner improper sympathy from the jury in favor of the Plaintiffs.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon denied the Plaintiffs' request on several grounds and noted that granting such a request "would create more problems than it would solve."  See Op. at p. 7.

First, he confirmed that, logistically, the members of the Plaintiff's families did not have to be displayed on a screen in the courtroom in order for those family members to be able watch the proceedings on a screen in another room.

Judge Nealon additionally observed that, to the extent the Plaintiffs wanted to introduce family members during the course of the trial, the Plaintiffs could call those family members as witnesses at trial.

It was also noted, that in an effort to avoid any alleged prejudice to the Plaintiff from the absence of the Plaintiffs' family members in the courtroom during the course of the trial, the Court could issue a cautionary instruction to the jury explaining that the family members would be watching the trial from another room in the courthouse due to the jury's use of the gallery for socially distant seating purposes under the COVID-19 restrictions.

Judge Nealon also confirmed that, to the extent the Plaintiffs sought to display their family members on the screen to the jury during openings and closing arguments as proof that the family was close knit and supportive of the injured Plaintiff, such a request would constitute improper opening or closing statements in that such would be an effort to introduce evidence at improper stages of the trial  Judge Nealon noted that it is a "hornbook rule" of law that opening statements and closing arguments are not part of the evidence and may not be considered by the jury as evidence in the case.  See Op. at p. 9.

The Court also noted that, while parties at trial are permitted to utilize visual aids during opening statements and closing arguments, the continuous display of the Plaintiff's family members on the screens and monitors in the courtroom would not be a proper use of demonstrative evidence under the circumstances presented here.  

The court reasoned that, in fact, the constant display of family members, including "restless" children trying to sit through protracted opening statements or closing arguments may even prove distracting or uncomfortable to a jury, and/or may prevent Plaintiff's counsel from the utilizing the screens in the courtroom to show other visual aids to the jury, such as medical records and the like.

Judge Nealon also agreed that the Defendants had articulated the possibility of prejudice in that the Defendants may be unfairly harmed before the first piece of admissible evidence is ever presented at trial if the Plaintiff's request to display family members on the screen during the opening statements was granted.  In so ruling, Judge Nealon noted that the Pennsylvania Supreme Court has recognized that opening statements could be the most important part of a trial as a juror could develop a lasting impression of the case presented that stays with the juror throughout the duration of the trial and into the deliberations room.

In this regard, Judge Nealon agreed that there was a danger that the perpetual display of the Plaintiffs' children and grandchildren on screens before the presentation of any evidence could inflame the jury or generate sympathy such that the jury's attention may be improperly diverted from the statements and arguments of all counsel at the beginning and the end of the trial.

Weighing the fact that the Plaintiff's request could be handled satisfactorily by other means against the potential harm that would result from granting the Plaintiff's request, the Court ultimately decided to deny the Motion.

Anyone wishing to review this decision may click this LINK.

Source of image:  www.waynation.com