Carrier's UIM Rejection Forms and Renewal Forms Upheld as Valid

In the case of Keeler v. Esurance Insurance Services, Inc., No. 2:20-CV-00271 (W.D. Pa. July 12, 2021 Kelly, M.J.), Federal Western District Court Magistrate Judge Maureen P. Kelly issued a Report and Recommendation recommending that the court grant the Motion for Summary Judgment filed by the carrier and denied the Motion for Partial Summary Judgment filed by the Plaintiffs in a UIM bad faith litigation.

According to the Opinion, the Plaintiff was involved in a motorcycle accident and recovered against the third party tortfeasor and then pursued a UIM claim against Esurance.

The carrier denied the UIM claim under an argument that the Plaintiff did not purchase UIM benefits when he first obtained the policy and did not add UIM coverage with any subsequent renewal.

The Plaintiffs asserted that the carrier’s UIM rejection form did not comply with the MVFRL because the statutorily required language was not printed in a prominent font or in a prominent location in the carrier’s policy. As such, the Plaintiff asserted that the rejection form was void and that UIM benefits must therefore be provided in an amount equal to the bodily injury liability coverage purchased.

Separately, the Plaintiffs also asserted that the carrier’s policy renewal forms omitted a required reminder notice indicating to the insured that the policy did not provide UIM benefits. The Plaintiffs again asserted that this alleged error on the part of the carrier resulted in the carrier being required to provide UIM coverage.

In response, the carrier asserted that its UIM rejection form complied with Pennsylvania law and that, when the Plaintiff signed that form, he offered up a valid written rejection of the offer of UIM coverage.

With regard to the policy renewals, although the carrier conceded that its form lacked the language required by MVFRL to inform policyholders that UIM coverage is not provided under the policy, the carrier held that the Plaintiffs could not be provided with UIM coverage as a result because the Pennsylvania Legislature had not provided for any remedy in any statute for this scenario.

The carrier sought a judgment in its favor as to the Plaintiff’s bad faith claim under the argument that the carrier had acted reasonably and in good faith given that the Plaintiff had affirmatively rejected UIM benefits.

Based upon the above rulings, the court granted the carrier summary judgment after finding that the carrier had an objectively reasonable basis to deny coverage based upon the Plaintiff’s valid rejection of UIM benefits.

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


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

Section 1983 Civil Rights Claim Allowed to Proceed

In the case of Reed v. City of Philadelphia, No. 20-3640 (E.D. Pa. June 17, 2021 DuBois, J.), the court denied a city and doctor’s Motions to Dismiss the Plaintiff’s §1983 Civil Rights Claims filed over a decedent’s suicide in jail.

The court found that the Plaintiff, who was the administratrix of the decedent’s estate, had adequately pled a monell’s claim based upon allegations of inadequate training.

The court additionally found that the Plaintiff had adequately pled that the doctor’s deliberate indifference to the decedent’s serious medical needs allowed the case to proceed.

The court also denied the doctor’s Motion to Dismiss the punitive damages claim presented.

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 (July 6, 2021).

PLEASE SAVE THE DATE FOR A TORT TALK CLE

BACK TO SCHOOL WITH TORT TALK:

A Civil Litigation Update

by

DANIEL E. CUMMINS

CUMMINS LAW

LUZERNE COUNTY BAR ASSOCIATION HYBRID PRESENTATION 

SET FOR SEPTEMBER 9, 2021 AT NOON

LACKAWANNA COUNTY BAR ASSOCIATION ZOOM PRESENTATION

SET FOR SEPTEMBER 15, 2021 AT NOON

NON-MEMBERS WELCOME

DETAILS TO FOLLOW.......

PROGRAM SPONSOR:

DIGITAL PRESENTATION SERVICES PROVIDED BY:

Source of image: Photo by Elements5 Digital on Unsplash.com

ARTICLE: Use of Police Reports in State and Federal Court Auto Accident Matters by Stephen T. Kopko

Here is a reprint of an article by Stephen T. Kopko, Esq. of Cummins Law which was recently published by the Pennsylvania Law Weekly on July 1, 2020. 

Use of Police Reports in State and Federal Court in Auto Accident Matters

By Stephen T. Kopko, Esq.

Cummins Law

July 1, 2021

In many motor vehicle accident negligence cases, the police officer’s investigation, and subsequent report, can become a crucial piece of evidence in determining the fault of a party in an accident. The police report normally contains the statements of the parties and witnesses involved in the accident and a diagram of how the accident may have occurred. The police officer also may list his assessment of the cause of the accident in the police report.

This information can be of important use in determining the liability of the plaintiff or defendant in an accident, the severity of the collision and the severity of the plaintiff’s alleged injuries from the accident. However, the ability to use the actual report as evidence during trial differs depending on whether the case is being tried in state or federal court.

Police Reports in State Court Trials Are Generally Prohibited

The Pennsylvania Motor Vehicle Code contains a specific provision that prohibits the use of police reports in state court trials arising out of motor vehicle accidents. According to 75 Pa.C.S.A. Section 3751(b)(4), “the copy of the police report shall not be admissible as evidence in any action for damages or criminal proceedings arising out of a motor vehicle accident.”

The rationale behind this prohibition was summed up best, as follows: “A police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence. Nor should a party be able to get such a report into evidence in an indirect manner.” See Rox Coal v. Workers’ Compensation Appeal Board, 807 A.2d 906, 914 (2002).

The Pennsylvania Commonwealth Court’s decision in Harris v. Philadelphia Facilities Management, 106 A.3d 183 (Pa. Cmwlth. 2014), provides additional guidance as to how police reports can be used, or be prohibited from being used, as evidence at trial in Pennsylvania state courts. The plaintiff in Harris was involved in a single-vehicle motorcycle accident in Philadelphia. The defendant in Harris was performing work on a gas main located at an intersection in the city and created irregularities in the roadway. The plaintiff in Harris alleged that the condition of the road caused the plaintiff to lose control of his vehicle and suffer a variety of injuries as a result of the accident.

Two Temple University police officers responded to the crash and one of the officers prepared the police report. The police report contained the officer’s opinions as to the alleged causes of the accident and included references to the plaintiff’s speeding, improper careless turning and driver inexperience.

Prior to trial, the plaintiff in Harris filed a motion in limine to preclude those portions of the police accident report referencing the plaintiff’s actions in the accident. The trial court granted the plaintiff’s motion in limine and precluded the use of the entire police report at trial.

The Temple police officer who did not author the report testified at trial. During his testimony, the officer acknowledged that he reviewed the police report to refresh his recollection for any details of the accident that he may have forgotten. Not satisfied with the jury’s verdict in the matter, the plaintiff in Harris appealed to the Pennsylvania Commonwealth Court and raised the issues surrounding the admissibility of the police report at trial.

The Pennsylvania Commonwealth Court in Harris found that the trial court in Harris did not abuse its discretion in precluding the police report as evidence pursuant to 75 Pa.C.S.A. Section 3751(b)(4). More specifically, the Commonwealth Court in Harris ruled that the trial court in Harris did not abuse its discretion in prohibiting the investigating police officer from being cross-examined at trial with the police accident report. Additionally, the Commonwealth Court ruled that the trial court did not commit an abuse of discretion in prohibiting the defense accident reconstruction expert from being cross-examined with the opinions in the police report, despite the accident reconstructions expert’s testimony that he had reviewed the report in coming to his ultimate opinion as to the cause of the accident.

The Commonwealth Court in Harris also ruled that the trial court in Harris did not abuse its discretion in also prohibiting the plaintiff’s accident reconstruction experts from testifying as to the contents of the police report, despite those experts’ review of the same. More specifically, the Commonwealth Court noted that, even though accident reconstruction experts are permitted to consider facts or data in the police accident reports in rendering their opinions according to Pa.R.E. 703, Section 3751(b)(4) does not allow an accident reconstruction expert to indirectly admit the investigating police officer opinions into evidence regarding the cause of the subject accident through the expert’s trial testimony.

The above cases show that police reports are typically precluded from being admitted into evidence at state court trials arising out of motor vehicle accidents. As noted below, that is not always the case in federal court trials.

Police Reports May be Admissible in Federal Court

The rules of admissibility of police reports in civil litigation matters in federal courts is more liberal than in Pennsylvania state courts. In contrast to the Pennsylvania Rules of Evidence and Pennsylvania law, which holds that police reports are not admissible in automobile negligence cases, the admission of police reports at trial in a federal case is governed by the Federal Rules of Evidence. More specifically, Federal Rule of Evidence 803, which provides for exceptions to the rule against the admissibility of hearsay evidence.

Federal Rule of Evidence 803(8) permits the admission of hearsay statements that consists of “a record or statement of a public office if it sets out … in a civil case …, factual findings from a legally authorized investigation and the opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness.”

This exception is commonly known as the Public Records Exception to the Hearsay Rule. In its decision in Clark v. Clabaugh, 20 F.3d 1290 (3d Cir. 1994), the U.S. Court of Appeals for the Third Circuit found that a police report generated from a state police investigation was admissible pursuant to Fed. R. Evid. 803(8). The court in Clark wrote that the state police investigation and report is admissible as a public report and contained an indicia of trustworthiness, including with respect to the police officer’s opinions, conclusions, and recommendations, except in those cases where the opposing party was able to demonstrate the untrustworthiness of the document or the person authoring the report.

In Prescott v. R&L Transfer, the U.S. District Court for the Western District of Pennsylvania was faced with the issue of the admissibility of a Pennsylvania state police crash report and the testimony of the investigating state troopers in a tractor-trailer accident matter. The plaintiff in Prescott was operating a tractor trailer that left the road and struck an embankment. The Pennsylvania State Police conducted an investigation and issued a police report.

As the case progressed towards trial, the plaintiff in Prescott filed a motion in limine to preclude the state police report as the investigating troopers’ opinions were not helpful to the plaintiff. The plaintiff in Prescott argued that the police report was inadmissible hearsay and lacked trustworthiness as the troopers who authored the report did not actually witness the accident and were not trained in accident reconstruction. The defendant in Prescott argued that the police report was admissible according to Federal Rule of Evidence 803(8), the Public Records Exception to the Hearsay rule.

The court in Prescott wrote that, “In evaluating the trustworthiness of a public record under Rule 803(8) courts have considered the timeliness of the investigation, the skill or experience of the investigating officers, whether a hearing was held, and the presence of any improper motive. See Vanderpoel v. A-P-A Transport, No. 90-5866, (E.D. Pa. 1992).”

In finding that the police report in Prescott was trustworthy, the trial court relied upon evidence that the investigating officer in Prescott arrived at the accident scene soon after the accident occurred, and based upon evidence that the officer had investigated similar accidents over the course of his career. As a result, the trial court denied the plaintiff’s motion in limine to preclude the police report as evidence in that matter.

While a police report may be admissible in federal court, it is noted that some federal courts have prohibited police officers from testifying at trial as to the cause of an accident if they were not a witness to the accident. In the case of Ernst v. Ace Motor Sales, 550 F. Supp. 1220 (E.D. Pa. 1982), the U.S. District Court for the Eastern District of Pennsylvania provided a different analysis of admissible testimony of investigating police officers in automobile accident matters.

The plaintiff in Ernst filed a lawsuit against the defendant as a result of an automobile accident. The jury in Ernst found that the defendant in Ernst was not at fault for the subject accident. During the trial, the investigating police officer in Ernst had testified as to the point of impact between the vehicles on the roadway, despite not being present at the time of the accident. The Ernst court allowed the officer to testify at trial as to the point of impact under Federal Rule of Evidence 701 and Federal Rule of Evidence 702.

The Ernst court noted that the police officer’s testimony was admissible only with regards to the point of impact between the vehicles. Significantly, the same court held that the police officer’s testimony was not admissible as to the cause of the accident. In footnote 3 of its decision, the court in Ernst emphasized that it had not allowed the police officer to testify at trial as to who was at fault for the accident.

A Dichotomy in the Law

Although Pennsylvania law generally prohibits the admission of police reports in most motor vehicle accident negligence cases, see 75 Pa.C.S.A. Section 3751(b)(4), the Third Circuit and some district courts within the Third Circuit have analyzed the admissibility of Pennsylvania police reports under the Federal Rules of Evidence and have generally held that police reports are admissible at civil litigation trial under the Public Records Exception to the Rule Against Hearsay.  See Clark v. Clabaugh, 20 F.3d 1290 (3d Cir. 1994).  A review of the applicable law reveals that federal courts have a much more liberal standard in admitting police reports as evidence in motor vehicle accident matters compared to those civil cases that are filed in Pennsylvania state courts, where police reports are generally not admissible in motor vehicle accident matters.

Also, whereas the opinions of investigating officers who are not eyewitness to an accident are generally not admissible in a state court action, such evidence may, in some cases, be presented to federal court juries through the admission of the police report.

Stephen T. Kopko is an associate attorney in the Clarks Summit law firm of Cummins Law where he handles all aspects of civil litigation including the defense of automobile accident cases, premises liability cases, products liability claims, and medical malpractice matters, and insurance coverage matters. Contact him at stephenkopko@cumminslaw.net.

Summary Judgment Secured on Negligent Entrustment Claim

In the case of Jones v. Ritchie, No. 4983-Civil-2019 (C.P. Monroe Co. June 28, 2021 Williamson, J.), the court granted a defendant-owner’s motion for summary judgment on a negligent entrustment claim arising out of a motor vehicle accident matter.

In this case, the plaintiff had sued a number of parties, including the person who had rented a rental car and who had then allowed the defendant driver to operate the vehicle during which trip that driver rear-ended another vehicle.  At the time, the person who had rented the car and the driver who as in the accident were in a boyfriend-girlfriend relationship.

According to the Opinion, before the subject accident, the defendant driver had a prior conviction for a DUI, of which the party who had rented the vehicle was aware. 

The record before the Court also revealed that the renter of the car was also aware that, around the time of the accident, the defendant driver was taking methadone to address addiction issues. In fact, the renter of the car had allowed the defendant driver to utilize the vehicle on the day of the accident because driver was going to her methadone clinic for treatment.

In addition to suing the defendant driver and the rental car company, the plaintiff filed a negligent entrustment claim against the party who had rented the vehicle and then let the defendant driver drive the vehicle. 

The party who had rented the car filed a motion for summary judgment on the negligent entrustment claim.

After reviewing the current status of the law of negligent entrustment, the court ruled in favor of the person who had rented the car and asserted that there was no evidence that the defendant driver had just taken methadone or was on any other drugs or alcohol at the time of the accident. Nor was there any evidence that the cause of the accident was due to any methadone medication used by the driver. 

Additionally, the court stated that there was no evidence stated or presented by the plaintiff that would show that the defendant driver was a bad driver, or that on the date of the accident the defendant driver was in a condition that would make her unable to operate a vehicle in a safe manner, or that such was known to the defendant lessor.

In the end, the court stated that there was no evidence to show that the defendant who had rented the car would have had any reason to know or have any actual knowledge of the fact that allowing the defendant driver to operate the vehicle would give rise to an unreasonable risk of harm to others.

Rather, based upon the facts of the case, under which the plaintiffs were caused to come to an abrupt stop on the roadway due to traffic ahead, after which the defendant driver could not stop in time and contacted the rear of the plaintiff’s vehicle, it appeared to the court that this accident occurred due to simple human error.

As such, the court granted the defendant who had rented the car summary judgment on the negligent entrustment claims asserted against him.

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

Note:  I was the defense counsel for the defendant who rented the car and who allowed the defendant driver to drive the vehicle.  Anyone who may wish to review my Motion for Summary Judgment and Supporting Brief may contact me at dancummins@comcast.net.

Third Circuit Applies Gallagher v. GEICO Household Exclusion Decision as a Matter of Course

In the case of National General Insurance Company v. Sheldon, No. 20-3222 (3rd Cir. July 14, 2021 [Not Precedential], the Third Circuit Court of Appeals affirmed a district court’s decision that the household exclusion contained in the carrier’s policy was invalid under Pennsylvania law as set forth in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019).

According to the Opinion, the Plaintiff was injured while operating his motorcycle which was insured with Dairyland Insurance.

The Plaintiff settled the third party claim and the UIM claim on the motorcycle.

The Plaintiff then sought UIM benefits on his other household policy with National General Insurance Company, which covered another vehicle in the household. The carrier denied that claim under the household exclusion.

According to the Opinion, National General attempted to argue that the case of Gallagher v. Geico was limited to cases involving the same insurance company and where the carrier covering the other vehicle in the household was unaware of the insured’s ownership of a motorcycle.

The Third Circuit Court of Appeals affirmed the district court’s decision that the household exclusion was invalid under the case of Gallagher v. Geico. The Third Circuit noted in its Opinion that the result was dictated by the Pennsylvania Supreme Court’s decision in Gallagher v. Geico.

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


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

Certain Nursing Home Care-Related Claims Allowed to be Pursued Under Section 1983

In the case of Alexander v. Fair Acres Geriatric Center, No. 20-2550 (E.D. Pa. May 25, 2021 Pratter, J.), the court denied a nursing home Defendant’s Motion to Dismiss filed against nursing home care-related claims under 42 U.S.C. §1983.

The court found that the Plaintiff’s nursing home care-related claims under 42 U.S.C. §1983 were viable under binding precedent that held that the Federal Nursing Home Reform Amendments conferred individual rights that are enforceable under 42 U.S.C. §1983.

The court additionally found that the Plaintiff’s Complaint sufficiently alleged “deliberate indifference” to support the claims presented by the Plaintiff.

As such, the Defendants’ Motion to Dismiss was granted in part and denied 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 (June 22, 2021).

Source of image:  Photo by Markus Spiske from Pexels.com.

PLEASE SAVE THE DATE: CIVIL LITIGATION UPDATE CLE FROM TORT TALK

BACK TO SCHOOL WITH TORT TALK:

A Civil Litigation Update

by

DANIEL E. CUMMINS

CUMMINS LAW

LUZERNE COUNTY BAR ASSOCIATION HYBRID PRESENTATION 

SET FOR SEPTEMBER 9, 2021 AT NOON

LACKAWANNA COUNTY BAR ASSOCIATION ZOOM PRESENTATION

SET FOR SEPTEMBER 15, 2021 AT NOON

NON-MEMBERS WELCOME

DETAILS TO FOLLOW.......

PROGRAM SPONSOR:

DIGITAL PRESENTATION SERVICES PROVIDED BY:

Source of image: Photo by Elements5 Digital on Unsplash.com

Bad Faith Claim Dismissed Due to Insufficient Facts; Motion to Amend Allowed

In the case of Brown v. LM Gen. Ins. Co., No. 21-2134 (E.D. Pa. June 7, 2021 Pratter, J.) (Mem. Op.), the court dismissed statutory bad faith claims asserted against an insurance company after finding that the Plaintiff’s allegations were insufficient, including the failure of the Plaintiff to cite facts to support allegations of an unreasonable delay or to prove entitlement for the full policy limit.

The carrier also moved to strike the references to “recklessness,” “wanton,” and “willful,” conduct in this motor vehicle accident case in which it was alleged that the tortfeasor driver had fallen asleep at the wheel.

According to the Opinion the tortfeasor driver lacked insurance coverage. As such, the Plaintiff filed an uninsured motorist claim against her own carrier.

The carrier denied the Plaintiff the full stacked limits of her uninsured motorist coverage. The Plaintiff filed suit in response, asserting that the carrier had failed to obtain the additional waivers of stacked coverage when she added new vehicles to her policy, including the vehicle involved in the accident.

As noted above, the court granted the carrier’s Motion to Dismiss finding that the Plaintiff had failed to sufficiently detail the conduct of the carrier in order to support the claims presented.

The Plaintiff was granted the right to amend.

The court also noted that the Plaintiff’s allegations of willful, wanton, recklessness conduct by the carrier in the context of her breach of contract claim were not relevant. Yet, the court held that such allegations could be relevant to her bad faith claim if the Plaintiff chose to amend that claim.

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 (June 22, 2021). 

Claim of Bad Faith Delay in UIM Tender Dismissed in Monroe County

In the case of Sabajo v. Allstate Fire and Cas. Ins. Co., No. 7703-CV-2019 (C.P. Monroe Co. June 22, 2021 Williamson, J.), the court granted the carrier’s Motion for Summary Judgment and dismissed the Plaintiff’s bad faith claim.

According to the Opinion, this case arose out of a motor vehicle accident matter.

The Plaintiff was pursuing a UIM and bad faith claim against the carrier. After the UIM claim was resolved, the Plaintiff continued with the bad faith claim under primary allegations of an unreasonable delay in the tendering of the UIM policy limits for almost a year. The Plaintiffs asserted that the carrier new, or recklessly disregarded that it allegedly lacked a reasonable basis to delay the payment.

After reviewing the record before him, Judge Williamson ruled that, based upon the medical records provided, which included information regarding treatment for pre-existing injuries, it was reasonable for the carrier to request discovery, medical lien amounts, and to eventually subpoena additional medical records to be certain of what was being claimed before the carrier made a settlement offer. The court noted that the record was consistent with the deposition testimony of the Allstate claims representative during which the representative indicated that it was only after the receipt of the additional information requested that he could finalize this evaluation and offer the policy limits.

In so ruling, the court noted that the claims representative’s request for additional information, including medical lien information, was “standard.” See Op. at 6. The court noted that, once the information was received, primarily by the beginning of 2020, the policy limits were tendered in March of 2020.

The court noted that, while the Plaintiffs made a claim for benefits in April of 2019, and eventually filed suit in September of 2019, the court could not say that this represented an unreasonable delay by Allstate in tendering the limits under the facts presented. Rather, the court found that the “steps taken [by the carrier] were prudent under the circumstances.” See Op. at 6. The court noted that, as soon as the confirmation of the diagnoses and causation was made, the carrier tendered the policy limits. As such, the court found that there is no unreasonable delay. This compelled the court to grant the Motion for Summary Judgment filed by the carrier.

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

Source of image: Photo by Karim Manjra on Unsplash.

Uninsured Bad Faith Claim Dismissed But Right To Amend Granted

In the case of Brown v. LM Gen. Ins. Co., No. 21-2134 (E.D. Pa. June 7, 2021 Pratter, J.) (Mem. Op.), the court dismissed statutory bad faith claims asserted against an insurance company after finding that the Plaintiff’s allegations were insufficient, including the failure of the Plaintiff to cite facts to support allegations of an unreasonable delay or to prove entitlement for the full policy limit.

The carrier also moved to strike the references to “recklessness,” “wanton,” and “willful,” conduct in this motor vehicle accident case in which it was alleged that the tortfeasor driver had fallen asleep at the wheel.

According to the Opinion the tortfeasor driver lacked insurance coverage. As such, the Plaintiff filed an uninsured motorist claim against her own carrier.

The carrier denied the Plaintiff's request for the payment of the full stacked limits of her uninsured motorist coverage. The Plaintiff filed suit in response, asserting that the carrier had failed to obtain the additional waivers of stacked coverage when she added new vehicles to her policy, including the vehicle involved in the accident.

As noted above, the court granted the carrier’s Motion to Dismiss finding that the Plaintiff had failed to sufficiently detail the conduct of the carrier in order to support the claims presented.

The Plaintiff was granted the right to amend.

The court also noted that the Plaintiff’s allegations of willful, wanton, recklessness conduct by the carrier in the context of her breach of contract claim were not relevant. Yet, the court held that such adjectives could be relevant to her bad faith claim if the Plaintiff shows to amend that claim.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 22, 2021).

Pennsylvania Superior Court Quashes Appeal on Discovery Dispute Over Claim of Privilege as Premature

In the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super. June 25, 2021)(en banc), the court addressed discovery issues in terms of whether a trial court impermissibly ordered the production of claims file materials from the carrier to the court for an in camera inspection where the carrier was asserting that the materials at issue were protected by the attorney-client privilege and the work product doctrine.

Following a review of the matter, the court ended up quashing the appeal on the basis of the Collateral Order Rule.

This Opinion contains a nice summary of the current status of the Collateral Order Rule in Pennsylvania.

With respect to this particular case, the court noted that, when a discovery request has been made that, on its face, seeks protected materials, and the responding party clearly sets forth facts that leave no doubt as to the applicability of any privilege, an in camera review is not permitted and doing so would violate the privilege.

Where, however, a discovery request is made and the assertion of a privilege by the responding party and/or the proofs offered by the requesting party render a trial court unable to determine and issue a privilege, an in camera examination is appropriate and fully supported by the case law.

The Superior Court noted that this approach strikes an appropriate balance between preserving privilege and protecting a requesting party’s right to discoverable material.

In this matter, the court concluded that the discovery requests made, and the responding party’s responses and objections made thereto, did not provide the trial court with enough information to decide whether any of the requested documents were indeed subjected to a privilege. As such, the Superior Court ruled that the trial court had appropriately ordered an in camera inspection of the documents.

The court emphasized in its opinion that the issue before it involved a trial court Order directing a party to produce documents for an in-camera review and not any Order requiring the production of documents to the party that requested the discovery. It was emphasized that, since it was concluded in this matter that an in camera inspection is appropriate, the responding party had not lost its right to further contest the order production of any claim materials if so ordered by the trial court after the in camera inspection is completed, but before production of the opposing party. In other words, the Superior Court confirmed that, if the trial court ordered the production of the documents after the in camera review the documents, the responding party still retained the right to attempt to appeal that decision.

For full disclosure purposes, I note that I wrote the Amicus Curiae Brief on behalf of the Pennsylvania Defense Institute in this matter.

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

Another Covid-19 Related Claim for Business Interruption Coverage Dismissed

In the case of Star Buick v. Sentry Ins., No. 5:20-CV-03023 (E.D. Pa. May 26, 2021 Leeson, J.), the court entered a declaratory judgment for the carrier after finding that the insurance policy providing coverage for direct physical loss, which phrase was not defined in the policy, did not provide coverage for loss of business income to an auto dealership due to the suspension of business operations during the COVID-19 pandemic.

The court additionally found that the civil authority provision in all-risks policy did not provide coverage to the auto dealership given that the business was not denied access to the property as a result of damage sustained to another property.

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


Source: “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (June 28, 2021).

Source of image:  Photo by Kaique Rocha from Pexels.com

Pennsylvania Supreme Court Rules Bike Race Exculpatory Release Invalid as to Municipality's Liability

In the case of Degliomini v. City of Philadelphia, No. 5 EAP 2020 (Pa. June 22, 2021) (Majority Op. by Doughterty, J.), Pennsylvania Supreme Court, in a 4-3 decision reversed a Commonwealth Court decision and ruled that an exculpatory release signed by a participant in a charity bike ride through the City of Philadelphia did not serve to immunize the city for allegedly breaching its duty to repair and maintain the public streets. 

According to the Opinion, this incident arose out of a twenty mile bike ride through the streets of Philadelphia. The injured party allegedly crashed into an unmarked and unbarricaded sink hole and was severely injured as a result.

Pennsylvania Supreme Court ruled that, because the release signed by the injured party would allow the city to give itself immunity for the claims presented, the release was found to prohibit what the Tort Claims Act expressly allowed and would impermissibly achieve for the city what Pennsylvania law plainly prohibited.

The Court ruled that the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which a municipality has proper notice could not be set aside and rendered unenforceable by a contract between individuals. 

As such, the Majority of the Supreme Court found that the release at issue was invalid in this case because it contravened public policy.

Anyone wishing to review a copy of the Majority's decision may click this LINK.  The Dissenting Opinion by Chief Justice Baer can be viewed HERE.


Source: Article: “Pa. Justices: Release Can’t Shield Phila. From Suit Over Cyclist’s Crash,” Pennsylvania Law Weekly (June 29, 2021).

Source of image:  Photo by Quino Al on unsplash.com

Pennsylvania Superior Court Again Confirms that the Household Exclusion Remains a Viable Exclusion Under Facts Distinguishable From Gallagher Decision (Non-Precedential)

In an important decision that it, for some inexplicable reason, was marked as “Non-Precedential,” the Pennsylvania Superior Court again confirmed that the effort by the Pennsylvania Supreme Court in the case of Gallagher v. Geico, 201A.3d131 (Pa. 2019), to eradicate the household exclusion under automobile insurance policies across the board was invalid. 

Rather, in its Non-Precedential decision issued on July 7, 2021 in the case of Erie Insurance Exchange v. Sutherland, No. 1113 WDA 2020 (Pa Super July 7, 2021 McLaughlin, J., King, J., and McCaffery, J.) (Op. by McCaffery, J.), the Pennsylvania Superior Court has again confirmed that the household exclusion can still be enforced under facts distinguishable from those facts at issue in the Gallagher case.

In this case, the trial court had denied the carrier’s motion for judgment on the pleadings filed in its declaratory judgment action in which the carrier sought a judicial declaration that it was within its rights to deny the Plaintiff's claims for UIM benefits on the basis of a household exclusion under the policy.

According to the Opinion, the plaintiff was allegedly injured while operating his motorcycle when he was allegedly struck by an underinsured motorist.

The plaintiff’s motorcycle was insured through a policy issued by Progressive Insurance Company.

Notably, according to the opinion, the plaintiff had waived underinsured motorists coverage under that Progressive motorcycle policy.

At the time of the accident, the plaintiff also maintained an insurance policy issued by Erie Insurance which provided coverage to two other vehicles. The court emphasized that the plaintiff did not execute a waiver of stacking for that Erie insurance policy. It was also emphasized that the plaintiff paid premiums consistent with obtaining stacked coverage under those policies. However, the Erie Insurance policy contained a household exclusion.

After the plaintiff requested Erie Insurance to pay UIM benefits for the injuries sustained as a result of the motorcycle accident, Erie denied the request and relied upon the household exclusion. That denial was issued back in June of 2017.

Fast forward to March of 2019 at which point the plaintiff requested Erie Insurance to reconsider its previous denial of the UIM coverage in light of what was then the recent Pennsylvania Supreme Court decision issued in Gallagher. Erie refused and, instead initiated this declaratory judgment action seeking to enforce its household exclusion under the facts presented.

As noted, the trial court in this matter denied Erie’s motion for judgment on the pleadings. The trial court concluded that the case of Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998), was effectively abrogated by the Pennsylvania Supreme Court's decision in Gallagher v Geico, 201 A.3d 131 (Pa. 2019). The trial court had also applied the Gallagher decision to conclude that the household exclusion clause was not enforceable as it conflicted with Section 1738 of the Motor Vehicle Financial Responsibility Law.

Erie Insurance appealed the trial court's decision to the Superior Court.   

On appeal, in this Non-Precedential opinion, the Pennsylvania Superior Court reversed the trial court and instead concluded that the issue presented in this case governed by the Pennsylvania Superior Court’s recent decision in the case of Erie Insurance Exchange v. Mione, __ A.3d __, 2021 WL1847751 (Pa. Super. May 10, 2021).

The facts in Mione were similar to the Sutherland case in that the plaintiff in Mione also did not pay for stacked UIM coverage on his separately insured motorcycle policy. The plaintiff in Mione was operating his motorcycle as well when he was involved in his accident. That motorcycle was also insured under a policy from Progressive, under which the plaintiff did not pay for stacked UIM coverage. The plaintiff in Mione also had separate automobile policies with Erie Insurance and sought to recover UIM benefits under those policies.

In its opinion in this Sutherland case, Pennsylvania Superior Court reiterated that this area of Pennsylvania law is not particularly clear or straightforward. The Pennsylvania Superior Court directly addressed the Pennsylvania Supreme Court and requested clarification on these issues presented.

The Pennsylvania Superior Court in this case, as well as in the Mione case ruled that, where there is no UIM policy upon which to stack, the Gallagher decision is factually irrelevant and distinguishable in that, instead, the Eichelman decision applied.

The court found that in this Sutherland case, like the plaintiff in Eichelman, the plaintiff was attempting to use a separate automobile insurance policy in order to "procure" UIM coverage in the first place and for which the plaintiff had not paid. 

The court in this Sutherland decision emphasized that the Eichelman decision had not been abrogated by the Gallagher decision. 

The Superior Court also emphasized that the decisions of Eichelman and Gallagher “are not inconsistent as they address different factual scenarios – saliently, whether an insured has waived or purchased UIM coverage on a vehicle that is involved in an accident or other incident.” See Op. at p. 20.

The Superior Court noted that where, as in this Sutherland case and as in the Eichelman case, a plaintiff did not purchase UIM coverage on his motorcycle policy, that plaintiff is not entitled to stack UIM coverage under his separate policies issued by another insurance company on other vehicles, as there was no UIM coverage covering the motorcycle upon which the other policies could stack onto.

The court noted that this result is consistent with the Motor Vehicle Financial Responsibility Law, as the plaintiff voluntarily chose not to purchase UIM coverage on his motorcycle policy, and, in return, received reduced insurance premiums. See Op. at p. 20-21.

The court noted that, if the plaintiff had indeed purchase UIM coverage on his Progressive Insurance motorcycle policy, as well as under his separate Erie Insurance automobile insurance policies, then Gallagher would apply under those facts and the household exclusion would be unenforceable under Gallagher.

Here however, under the different facts presented, the Superior Court ruled in Sutherland (and just like it ruled in Mione) that the trial court had erred in concluding that the household exclusion was not enforceable. As such, the trial court’s opinion was reversed.

At the end of its decision in this Sutherland case, Pennsylvania Superior Court noted that the issues presented are poised to be reviewed again by the Pennsylvania Supreme Court in the case of Donovan v. State Farm. It was also noted by the Pennsylvania Superior Court that the plaintiffs in the Mione case have petitioned the Pennsylvania Supreme Court for allowance to appeal the issue in that matter as well.

In this Sutherland decision, Pennsylvania Superior Court noted that the issues may be clarified by the Pennsylvania Supreme Court upon further review of those cases.

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

Source of image above: Photo by Anne Nygard on unsplash.com.

No Summary Judgment Allowed Based on Lack of Notice in Slip and Fall Case Where Surveillance Tape Spoliated

In the case of Nixon v. Family Dollar Stores, No. 4:20-CV-00404 (M.D. Pa. May 20, 2021 Brann, J.), the court found that a claim of spoliation precluded the entry of summary judgment in a slip and fall case.

According to the Opinion, the court found that the Defendant spoliated surveillance camera tapes. The court found that this allowed for a permissive adverse inference jury instruction.

Based on the possibility of a permissive adverse inference, the court found that summary judgment was precluded with respect to any argument regarding notice of the alleged dangerous condition.

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

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

Source of image:  Photo by Justin Buisson on Unsplash.com.

   

Third Circuit Court of Appeals Certifies Medical Device Products Liability Questions to the Pennsylvania Supreme Court For a Decision

In the case of Ebert v. C.R. Bard, No. 20-2139 (3d Cir. 2021), the Third Circuit Court of Appeals certified two issues of medical device products liability to the Pennsylvania Supreme Court for a decision.

The court sent the following two issues to the Pennsylvania Supreme Court: (1) what standard the Pennsylvania Supreme Court would apply to negligent design claims against prescription medical device manufacturers, and (2) whether prescription medical device manufacturers are categorically subject to strict liability under Pennsylvania law or may instead be immune from strict liability in certain circumstances.

Anyone wishing to review a copy of this Petition for Certification authored by the Third Circuit Court of Appeals may click this LINK.

Source of image: Photo by Hush Naidoo on unsplash.com.

Pennsylvania Superior Court Reverses Trial Court's Opening of Default Judgment

In the case of Rivers End Animal Sanctuary and Learning Center, Inc. v. Eckhardt, No. 1848-CV-2019 (Pa. Super. May 7, 2021) (Op. by Kunselman, J.), the Pennsylvania Superior Court ruled that a trial court erred in opening a default judgment where the Defendant failed to establish a meritorious defense and violated Rule 237.3 by failing to attach Preliminary Objections or an Answer and New Matter to the Defendant’s Petition to Open a Default Judgment.

According to the Opinion, this matter arose out of a dispute over the ownership of a number of horses.

After suit was filed by way of a declaratory judgment action to determine the rights and ownership over the horses, a default judgment was entered against the Defendant for failing to respond.

The Defendant filed a Petition to Open the Default Judgment ten (10) days later. The trial court opened the default and allowed the case to proceed.

On appeal, the appellate court agreed with the Plaintiff’s contention that the Defendant had failed to establish a meritorious defense given that the Defendant had merely stated boilerplate language in identifying a defense or defenses in its Petition to Open the Default.

The appellate court also found that the trial court had misapplied Rule 237.3(a) by overlooking the Defendant’s failure to attach Preliminary Objections or an Answer and New Matter to the Petition to Open a Default Judgment.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 25, 2021).

Plaintiff Granted Leave to File an Amended Complaint to Include Allegations of Recklessness in a Trucking Accident Case

 A Plaintiff was allowed to file an Amended Complaint alleging recklessness in a motor vehicle accident case based upon facts that came to light in discovery in the Federal Eastern District Court case of White v. Bush, No. 20-2059-KSM (E.D. Pa. June 3, 2021 Marston, J.).

According to the Opinion, the case arose out of an accident during which a freightliner allegedly ran a red light and caused a collision with the Plaintiff's vehicle.

Earlier in the case, the parties had entered a stipulation for the removal of allegations of recklessness from the Complaint.

During the course of discovery, it was revealed that there were deficiencies in the hiring practices and the training practices of the defendant company.  Evidence was also revealed regarding the criminal history of the driver and regarding other accidents the driver had been involved in.

The Plaintiff filed a Motion for Leave of Court to file a Second Amended Complaint to include allegations of recklessness against the Defendant-driver and the Defendant trucking company.   The Plaintiff also sought to add a claim of Negligent Hiring and/or Reckless Hiring/Supervision/Retention against the Defendant trucking company.

After reviewing the law of amendments under F.R.C.P. 15 and 16(b) and after finding that the proposed amendments in the Plaintiff's Second Amended Complaint supported allegations of recklessness and/or claims for punitive damages, the court granted the Plaintiff's motion after finding that the Plaintiff showed good cause to allow for the amendment and after finding that the allowance of the amendment would not be a futile effort.

Anyone wishing to review this decision may click this LINK.

Source of image:  Photo by Pixabay on www.pexels.com.