Tuesday, August 31, 2021

Tort Talk CLE in Lackawanna County Set for September 14th (Non-Members Welcome)


 

UIM Rejection Form for Commercial Auto Policy Found Valid


In the case of Eberly v. Firemen’s Ins. Co. of Washington, D.C., No. 5:20-CV-05471 (E.D. Pa. July 13, 2021 Leeson, J.), Judge Joseph Leeson of the Eastern District Federal Court granted a Defendant carrier’s Motion to Dismiss in a UIM case.

This matter involved a commercial auto policy.  The Plaintiff challenged the UIM rejection form on the basis that the document did not contain a policy number and because the document did not indicate the authority of the signatory to execute the document on behalf of the commercial insured.     

The court found that the form executed by the Plaintiff rejecting equal UIM coverage under a commercial automobile insurance policy was valid where that form was signed by the corporate insured’s owner, who was the only individual who had ever acted as a signatory for the company. 

The court also found the form to be valid where the relevant policy number was listed in an attached schedule to the coverage forms.

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 29, 2021).

Source of image: Photo by Andrea Piacquadio from Pexels.com.

UIM Bad Faith Complaint Dismissed For Conclusory Allegations


In the case of O’Brien v. Liberty Mutual Ins., No. 21-CV-01234, 2021 WL3203405 (E.D.Pa. July 28,2021 Baylson, J.), the court granted a carrier’s Motion to Dismiss a Plaintiff UIM bad faith claim for failure to plead beyond conclusory allegations.

The court noted that the Plaintiff did not provide sufficient factual allegations under which the court could reasonably infer the Defendant’s ill-will. The court found that the claims of bad faith described in the complaint were overly vague and did not contain any specific factual allegations that suggested bad faith.

For example, the Plaintiff did not plead specific facts to suggest how the Defendant forced the Plaintiffs to file the lawsuit. Nor did the complaint give facts in support of claims of false pretexts and invasive tactics utilized by the insurance company.

The court noted that, basically, the sole factual allegation in the Complaint regarding the Defendant’s action was that the Defendant denied the Plaintiff’s claim for UIM benefits.

Although the court granted a Motion to Dismiss, the court also allowed the Plaintiff leave to amend.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia Law Firm of Fineman, Krekstein & Harris, and the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog, for bringing this case to my attention.

Source of image:  Photo by Sora Shimazaki from Pexels.com.

Monday, August 30, 2021

UIM Coverage Election Forms Found To Be Valid


In the case of Eckman v. Encompass Home & Auto Ins. Co., No. 1904038 KSM (E.D. Pa. July 30, 2021 Marston, J.), the court ruled that an insured was not entitled to underinsured motorist coverage equal to the bodily injury liability coverage limits under the subject automobile insurance policy where the statutory coverage election forms, as well as the insured’s initial application for the insurance policy, all provided sufficient evidence under Pennsylvania statutory law to demonstrate that the insured intended to purchase a lower amount of UIM coverage.

As such, the Defendant carrier’s Motion for Summary Judgment was granted and the Plaintiff’s cross Motion for Summary Judgment was denied.

According to the Opinion, the Plaintiff sought to preclude the coverage forms at issue from consideration by the court. However, the Plaintiff also conceded that, if the UM/UIM coverage forms were admissible, then the carrier would indeed be entitled to summary judgment. The court denied the Motion to Preclude the Documents from Consideration.

The court also ruled that, even if the election forms were excluded, the application for insurance itself constituted sufficient evidence for the court to find that the Plaintiff intended to purchase lower UM/UIM coverage limits.

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

The Court's Opinion on the Plaintiff's motion to preclude the admission of copies of the pertinent documents can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 17, 2021).

Source of image: Photo by Scott Graham on Unsplash.com.

Friday, August 27, 2021

Upcoming Tort Talk CLE for Luzerne County (September 9th)

 Below is a reprint of the Ad for the Luzerne County CLE entitled "BACK TO SCHOOL:  A Civil Litigation Update with Tort Talk."

This will be a one hour CLE that you can attend via Zoom or Live (I will be presenting via Zoom).

If you are not able to access the Link to register within the Ad here, please try this LINK to register through the Bar's website.

Thank you for considering this CLE.



Vague Allegations of Recklessness Stricken in a Motor Vehicle Accident Case Out of Beaver County



In the case of Willis v. Tyson, No. 10646-2020 (C.P. Beaver Co. May 24, 2021 Shahen, J.), the court struck allegations of recklessness as insufficient in this motor vehicle accident case.

According to the Opinion, the Plaintiff alleged that the Defendant driver was operating a vehicle when that vehicle struck the Plaintiff’s occupied parked vehicle. The Plaintiff generally asserted that the Defendant was operating a vehicle at a high rate of speed and in a reckless manner. The Plaintiff otherwise argued that the Defendant driver was negligent in operating a vehicle in a recklessness manner under the totality of the circumstances.

The court reviewed the issue under a Preliminary Objection asserting insufficient specificity of a pleading.

After reviewing the current status of the law of Pennsylvania on the claim of recklessness, including the review of the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), the court in this Willis case noted that, while a condition of the mind may be averred generally, a plaintiff must still plead sufficient facts to establish that the conduct of the Defendant was reckless. In this regard, the Willis court cited the case of Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973). The court in Willis emphasized that the Ammlung court pointed out that the allowance to aver conditions of the mind generally “was not meant, however, to dispense with the requirement that material facts constituting the conduct of a Defendant also be pleaded.” [citation omitted].

In this case, the court found that the Plaintiff’s allegations regarding the claim of recklessness failed to inform the Defendant as to what conduct was allegedly at issue in terms of an allegation of reckless conduct which would potentially support a claim for punitive damages. The court found that the claims in the Complaint alleging reckless conduct were “fatally vague and uninformative.” As such, the court granted the Defendant’s Preliminary Objections and struck the allegations of the Complaint alleging reckless conduct. 

The court did grant the Plaintiff leave to file a Second Amended Complaint in an effort to secure the deficiencies at issue.

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


I send thanks to attorney William C. Robinson, III of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this case to my attention.

ARD Can Be Considered a Prior Conviction in Some Contexts


In the case of Davilla v. Dept. of Transp., No. 4478-CV-2020 (C.P. Monroe Co. June 11, 2021 Higgins, J.), the court denied a licensee’s suspension appeal.

This decision is of note given that the court ruled that the licensee’s prior acceptance into the Accelerated Rehabilitative Disposition (ARD) Program was properly considered to be a prior conviction under the Motor Vehicle Code for purposes of imposing a civil collateral consequence of his conviction.

According to the Opinion, the licensee previously entered into an ARD Program due to a prior DUI.

While the court noted, based upon Pennsylvania precedent, that prior acceptance into an ARD Program could not be considered to be a prior offense in order to increase a criminal penalty against the licensee, this matter involved a civil proceeding.

The court noted that a license suspension is a collateral civil consequence of a criminal conviction. Accordingly, the court found that the licensee’s prior ARD acceptance was considered a prior conviction under the Motor Vehicle Code for purposes of imposing a civil collateral consequence of his conviction.

As such, the court denied the licensee’s license suspension appeal.

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


Source: “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 29, 2021).


Commentary: This decision may raise a question as to whether a DUI Defendant’s acceptance into an ARD Program may count as a criminal conviction for DUI under the Motor Vehicle Code for purposes of determining whether a limited tort Plaintiff falls under an exception to the limited tort rule where the accident involved a DUI Defendant.


Source of image:  Photo by Mathilde Langevin on unsplash.com.

Wednesday, August 25, 2021

Summary Judgment Granted in Wal-Mart Slip and Fall Case


In the case of Cole v. Wal-Mart, No. 20-3436 (E.D. Pa. July 1, 2021 Robreno, J.), the court granted summary judgment in favor of the Defendant store in a slip and fall case where the Plaintiff failed to offer any evidence that the Defendant had actual or constructive notice of the alleged dangerous condition that allegedly caused the Plaintiff to fall.

The court noted that the record did not have any evidence as to how long the alleged hazard existed. As such, a jury would be left to impermissibly speculate as to the issue of notice.

The court otherwise indicated that the presence of an employee near the hazard, in and of itself, is not sufficient to establish constructive notice on the part of the Defendant.

The court additionally noted that the alleged failure of the store employees to follow store policy also did not, in and of itself, establish a breach of the duty of care because the store policy is only considered after notice has been established.

The court otherwise also found that photographs of the spill secured after the accident were not probative of its existence prior to the accident.

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 Reed Smith law firm for bringing this case to my attention.

Summary Judgment Granted in Fall Down Case Where No Evidence of Issues With Carpet Produced


In the case of Molinaro v. Nemacolin Woodlands, Inc., No. 1661 of 2016 G.D. (C.P. Fayette Co. May 4, 2021 Wagner, P.J.), the court granted summary judgment in favor of the Defendant resort on a claim by a Plaintiff that he sustained injuries when he allegedly fell in his room at the resort.

The Plaintiff alleged that the carpet on the floor was raised and insecure, which caused him to fall when he got up from a chair. According to the Plaintiff, something moved or rolled under his foot.

The court noted that, when paramedics arrived to treat the Plaintiff, they noticed an odor of alcohol about the Plaintiff. The Plaintiff admitted to the paramedics that he had been drinking.

After reviewing the record, the court found that the Plaintiff failed to establish that the carpet in his room at the resort was loose, raised or otherwise insecure. The court also noted that nothing in the record indicated that there were any problems with the carpet either prior to the Plaintiff’s fall or that there were any repairs or replacements to the carpet in this particular room after the incident.

After finding that the Plaintiff failed to meet his burden of demonstrating the existence of a hazardous condition, the court granted the Defendant’s Motion for Summary Judgment and dismissed the action.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).




 

Tuesday, August 24, 2021

SAVE THE DATE: LACKAWANNA COUNTY CLE BY TORT TALK (non-members welcome for a fee) - September 15, 2021

 


Pennsylvania Supreme Court Rejects Effort by Plaintiff To Pierce Corporate Veil


In the case of Mortimer v. McCool, No. 37 MAP 2020 (Pa. July 21, 2021)(Maj. Op. by Wecht, J.)(Concurring Op. by Donohue, J.), the Pennsylvania Supereme Court addressed the doctrine of piercing the corporate veil to impose liability in a personal injury matter.

This matter arose out of an accident during which the Plaintiff was injured when a drunk driver hit her car.  A Dram Shop claim was pursued against multiple defendants.  

After the Plaintiff secured a substantial verdict, her attorney took steps in an effort to pierce the corporate veil of certain Defendants in an effort to realize a monetary recovery on the verdict.

In this regard, the Plaintiff sought to utilize a doctrine known as "singe-entity," "enterprise," or "horizontal" liability.  Generally speaking, the doctrine holds that, just as a corporation's owner may be held liable for judgments against the corporation when justice so requires, so may affiliate or sister corporations be held liable for each other's judgments where those various corporations have a shared ownership or engage in a single commercial enterprise.

The Pennsylvania Supreme Court ruled that the application of the enterprise liability theory to pierce the corporate veil of the defendant was not precluded per se under Pennsylvania law.  However, the Court found that the attempt to pierce the corporate veil in this case under that theory was rejected when the entities lacked identical ownership.

The Court also noted that, if the Plaintiff was allowed to invoke enterprise liablity in this case, an innocent Defendant would have been exposed.  The Court noted that piercing the corporate veil may only occur when the rights of innocent parties are not prejudiced.

Anyone wishing to review a copy of the Majority Opinion by Justice Wecht in this case may click this LINK.  The Concurring Opinion by Justice Donohue may be viewed HERE.


Source: “Court Summaries” by Timothy L. Clawges. Pennsylvania Bar News (August 16, 2021).


Source of image: Photo by Yan Krukov from Pexels.com.

Monday, August 23, 2021

Defendant's Challenge to Qualifications of Expert Rejected


In the case of Miller v. BGHA, Inc., No. 19-1293 (E.D. Pa. June 30, 2021 Bartley, J.), the court denied a Defendant’s Motion to Bar a Plaintiff’s Expert from Testifying in the case arising from the Plaintiff’s fall from a hunting tree stand. Rather, the court found that the Plaintiff’s mechanical engineering expert was qualified to testify.

According to the Opinion, in this case involving a fall from a tree stand, the Plaintiffs offered a mechanical engineer who had worked in the power plant industry as their expert witness. This expert inspected the tree stand and its dissembled ladder sections and reviewed photographs of the tree as well as the instruction manuals and produce details for other models of tree stands.

The Defendants asserted that the expert did not qualify as an expert in this case because he did not have any experience with tree stand products or consumer products and had never before analyzed a similar product.

The Plaintiff argued that the expert was qualified generally as a mechanical engineer who spent much of his career evaluating equipment safety and safety processes.

In the end, the court found that the expert was qualified by his education, training, and lengthy work history to testify as to product design and safety in this matter. The court found that the expert had specialized expertise and training that would allow him to help the jury to understand the design of the stand.

The court additionally noted that the expert did not have to be a human factors or warning expert to testify how the instructions and warnings affected the engineering forces in assembling the stand.

In terms of the expert’s Opinion, the court found that the expert had offered his opinions from an engineering perspective on the design and safety aspects of the stand based upon principles common in engineering such that the expert’s testimony was reliable. The court noted that the fact that the Defendants disputed the expert’s conclusions regarding the strength and the design of the tree stand did not alter the conclusion that the expert’s opinion was reliable since the expert’s analysis did not have to be correct or without flaw in order to be admitted.

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 22, 2021).

Source of image: Photo by Laura College on unsplash.com.

Carrier Prevails in Covid-19 Business Interruption Coverage Case



In the case of Spector Gadon Rosen Vinci P.C. v. Valley Forge Insurance Company, May Term 2020, No. 1636 (C.P. Phila. Co. June 17, 2021 Padilla, J.), the court granted summary judgment in favor of a carrier in a COVID-19 business interruption coverage case.

The court ruled that the record before it confirm that the law firm did not sustain any direct physical loss due to the pandemic closures and, as such, the law firm was not entitled to business interruption coverage.

The court also found that various exclusions under the policy applied.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (August 10, 2021).

Friday, August 20, 2021

UPCOMING TORT TALK CLE OUT OF LUZERNE COUNTY (HYBRID -- ZOOM AND LIVE)

Below is a reprint of the Ad for the Luzerne County CLE entitled "BACK TO SCHOOL:  A Civil Litigation Update with Tort Talk."

This will be a one hour CLE that you can attend via Zoom or Live (I will be presenting via Zoom).

If you are not able to access the Link to register within the Ad here, please try this LINK to register through the Bar's website.


Summary Judgment Granted Based Upon Hills and Ridges Doctrine



In the case of Nucitelli v. Oakview Terrace Condominium Assoc., Inc., No. 7050-CIVIL-2019 (C.P. Monroe Co. June 28, 2021 Williamson, J.), the court granted the Defendant’s Motion for Summary Judgment in a slip and fall case based upon the hills and ridges doctrine.

According to the Opinion, the Plaintiff fell while exiting her apartment and walking towards her car.

The court noted that a wintry mix of precipitation had occurred from 6:51 p.m. the day before the Plaintiff’s fall until at least 7:15 a.m. on the day of the fall. The weather report also showed rain through at least 9:45 a.m. on the day of the Plaintiff’s fall. 

The record showed that the Plaintiff had fallen at approximately 8:00 a.m. during that day.

According to the Opinion, the Plaintiff stated that, as she was coming down the outside steps from her apartment, she slipped and fell on “black ice.” She described the condition as “not shiny” but she did not know if the ice was smooth or flat.

The court also noted that the Plaintiff admitted that she did not know how those conditions were created or how long they had existed. She also had no evidence to show that the Defendant was aware of or had been notified of the condition of the steps on the day of the fall.

After reviewing the current status of the hills and ridges doctrine, the court entered summary judgment.

The court additionally noted that there was no evidence presented that the Defendant failed to act with reasonable care under the circumstances. Nor was there any evidence as to who was actually responsible for maintaining the stairs upon which the Plaintiff fell. The Plaintiff had admitted that she often salted and removed snow from the stairs herself.

The court was also influenced by the fact that the record appeared to confirm that the condition was possibly created by the wintry mix that occurred over night and had switched to rain approximately 45 minutes before the Plaintiff fell.

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


I send thanks to Attorney Jason Banonis of the Allentown, Pennsylvania office of the Marshall Dennehey, Warner, Coleman & Goggin law firm for bringing this case to my attention.

Thursday, August 19, 2021

Worker's Compensation Carrier Allowed to Intervene in Third Party Action to Recover Lien

 

In the case of Gleason v. Alfred I. Dupont Hospital, No. 1872 EDA 2020 (Pa. Super. Aug. 5, 2021 McLaughlin, J., King, J., Pellegrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court permitted a worker’s compensation carrier to intervene in a third party personal injury litigation as part of the worker’s compensation carrier’s efforts to protect its subrogation rights on its lien by challenging the parties’ allocation of the settlement proceeds.

According to the Opinion, the Plaintiff-husband sustained burn injuries as a result of a work-related event.

During the course of the third party litigation, the injured Plaintiff entered into a sizeable settlement with one of the alleged tortfeasor Defendants. A petition was then filed by the Plaintiff with the court for court approval of that settlement, including the allocation of 60% of that settlement to the loss of consortium claim.

The worker’s compensation carrier filed a Petition to Intervene in order to protect its subrogation rights. The worker’s compensation carrier was asserting that the allocation of a substantial portion to the settlement funds to the loss of consortium claim was unfair and was designed to preclude the worker’s compensation carrier from fully recovering on its subrogation rights.

When that initial Petition to Intervene filed by the worker’s compensation carrier was denied, the worker’s compensation carrier eventually filed a second Petition to Intervene which was also denied. An appeal followed.

As noted above, on appeal, the Pennsylvania Superior Court ruled that the worker’s compensation should have been allowed to intervene in a third party action to protect its interests.

The court found that the requirements of the Collateral Order Doctrine had been met under the case presented such that the worker’s compensation carrier should be entitled to intervene.

The court noted that, where the worker’s compensation carrier had paid nearly a $1 million dollars on behalf of the injured party as a result of the workplace accident, justice required that it be allowed to intervene in a case where the settlement agreement against the third party tortfeasor was structured in a manner that limited the worker’s compensation lien to only about a third of the amount of the lien.

As such, the Superior Court found that the trial court had abused its discretion in denying the intervention sought by the worker’s compensation carrier as that intervention was necessary to fully protect the worker’s compensation carrier’s subrogation rights and rights to challenge the apportionment of the settlement proceeds in the third party matter relative to the loss of consortium claim.

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

I send thanks to Attorney Thomas B. Helbig of Helbig Mediation and Arbitration for bringing this case to my attention.

Source of Image (not of structure in question):  Photo by Markus Spiske on unsplash.com.

Wednesday, August 18, 2021

Pennsylvania Supreme Court Issues Notable Decision Regarding Inter-Policy Stacking Issues and Household Exclusion Issues


In the case of Donovon v. State Farm Mutual Automobile Insurance Co., 2021 Pa. Lexis 3394 (Pa. Aug. 17, 2021) (Op. by Baer, J.)(Wecht, J., concurring, Saylor, J., dissenting), the Pennsylvania Supreme Court answered questions certified to it by the Third Circuit Court of Appeals on issues surrounding inter-policy stacking and the Household Exclusion.

According to the Opinion, the Plaintiff was involved in an accident while on his motorcycle.

The Plaintiff recovered the liability limits from the tortfeasor’s vehicle as well as the UIM coverage on his motorcycle, which UIM coverage was under a State Farm policy.

The Plaintiff then sought coverage under another State Farm policy issued to his mother, under which the Plaintiff was an insured as a resident relative.

The Plaintiff’s mother’s policy listed three vehicles. The Plaintiff’s mother had previously executed a signed waiver of intra-policy stacked coverage on her policy which complied with the waiver form mandated by 75 Pa.C.S.A. §1738.

The Court found that the waiver form used by State Farm in this matter as mandated by the Pennsylvania Motor Vehicle Financial Responsibility Law was invalid and did not result in the waiver of inter-policy stacking of underinsured motorist (“UIM”) coverage where the policy insured multiple vehicles under separate policies.

The Pennsylvania Supreme Court found that the statutorily mandated waiver form, referencing the limits of “the policy,” rather than more than one policy, failed to provide insureds with the necessary information to permit a knowing waiver. The Court ruled that, in the absence of valid waiver both policies default to stacked coverage by operation of law.

The Court also ruled that the fact that the insurer is unable to obtain a valid waiver of inter-policy coverage by using the legislatively mandated waiver form is something for the legislature to remedy, not the Court.

After finding that the waiver form at issue in this case was invalid as applied to inter-policy stacking claims (i.e., stacking of coverages for vehicles insured under different policies), the Supreme Court went on to rule that the policy’s Household Exclusion was also unenforceable absent a valid written waiver of inter-policy stacking, because the language of that exclusion was incompatible with stacking. In this regard, the Court cited to its previous decision in the case of Craley v. State Farm Fire and Cas. Co., 895 A.2d 530 (Pa. 2006).

The Court in Donovon followed its previous decision in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019) and again ruled that the Household Exclusion provision is invalid as a de facto waiver, where Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.

Finally, the Pennsylvania Supreme Court also held that the policy’s coordination of benefits provision for unstacked UIM coverage did not apply absent a valid waiver of inter-policy stacking.

Having answered the questions presented, the Pennsylvania Supreme Court ordered that the matter be returned to the Third Circuit for further proceedings.

Anyone wishing to review the Majority Opinion by Justice Baer may click this LINK.

The Concurring Opinion by Justice Wecht can be viewed HERE.

The Dissenting Opinion by Justice Saylor can be viewed HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this decision to my attention.

Tuesday, August 17, 2021

Real Property Exception To Immunity Found Inapplicable in School Injury Case


In the case of Kilroy v. Owen J. Roberts School District, No. 2018-09778-TT (Jan. 11, 2021 Sommer, J.), the court granted a school district’s Motion for Summary Judgment in a premises liability case based upon an application of the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8541.

According to the Opinion, the Plaintiff alleged that the minor Plaintiff’s thumb was injured on a metal shelf while the minor was attempting to block a ball being thrown in a boy’s bathroom.

The Plaintiffs were attempting to rely upon the real property exception to defeat the claim of immunity asserted by the school.

After reviewing the current status of Pennsylvania law on whether a chattel, such as a shelf, is real property or personal property, the court noted that the shelf in question was attached to the wall with six (6) small screws. It was noted that the shelf could be removed with a simple screwdriver, an electric screwdriver, or a power drill in a matter of seconds or minutes depending on the apparatus used.

The court found that the shelf was intended to be easily removed for purposes of replacement without damaging the property itself.

It was also noted that there was no evidence presented that the bathroom had been physical altered to accommodate the metal shelf, or that the metal shelf had to remain in its location.

Based upon these findings, the could held that the shelf was personalty, and not a fixture. As such, the court found that the facts did not fall under the real property exception.  Accordingly, the court granted the school district summary judgment based upon the immunity provided by the Political Subdivision Tort Claims Act.

 

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


Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (July 20, 2021). 


Summary Judgment Affirmed in Section 1983 Case Arising Out of Termination of Chief of Police

In the case of Dondero v. Lower Milford Township, No. 20-1128 (3d. Cir. July 20, 2021 Ambro, J., Hardiman, J. and Phipps, J.) (Op. by Hardiman, J.), the court affirmed the lower court’s entry of summary judgment rejecting the Plaintiff’s constitutional and statutory claims arising out of his termination as Chief of Police in Lower Milford Township without a hearing.

The Third Circuit Court of Appeals noted that it agreed with the District Court’s decision that no pre-termination hearing was required when the township eliminated its police department.   


Based upon these rulings, the court affirmed the entry of summary judgment on the claims of violations of the first amendment and violations of substantive and procedural due process, as well as other claims.  


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


I send thanks to attorney Owen M. Coleman of the Carbondale, Pennsylvania law office of Harry Coleman for bringing this case to my attention.    


Monday, August 16, 2021

Claim of Punitive Damages in Alleged Distracted Driver (Cell Phone) Case Dismissed


In the case of Nichols v. Ray, No. 2019-GN-2711 (C.P. Blair Co. July 12, 2021 Doyle, J.), the court sustained a Defendant’s Preliminary Objections to allegations punitive damages based upon cell phone use in a motor vehicle accident case.

The court additionally sustained Preliminary Objections and struck a claim against another Defendant for negligent entrustment based upon a lack of sufficient factual specificity to support that claim. In this regard, the court noted that the claim of negligent entrustment involves knowledge that is incident-specific, and not only allgations of generalized misgivings in regards to allowing another person to operate a vehicle.

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

I send thanks to attorney William C. Robinson, III of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this case to my attention.

Source of above image:  Photo by D'Vaughn Bell from Pexels.com.





PLEASE SAVE THE DATE -- UPCOMING TORT TALK CLEs

 



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

Register by emailing Gail Kopiak of the Bar Office at

Gail.Kopiak@luzernecounty.org


LACKAWANNA COUNTY BAR ASSOCIATION ZOOM PRESENTATION

SET FOR SEPTEMBER 15, 2021 AT NOON


NON-MEMBERS WELCOME


MORE DETAILS TO FOLLOW.......


PROGRAM SPONSOR:


DIGITAL PRESENTATION SERVICES PROVIDED BY:


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


Friday, August 13, 2021

Coverage for Covid-19 Business Losses Allowed


In the case of Brown’s Gym, Inc. v. The Cincinnati Insurance Company, No. 20-CV-3113 (C.P. Lacka. Co. July 13, 2021 Nealon, J.), the court addressed Preliminary Objections filed by the carrier against the Plaintiff’s request for a declaratory judgment that the Plaintiff’s Coronavirus-related losses should be covered under their insurance policy, as well as with respect to other claims including breach of contract and bad faith.

According to the Opinion by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, the Plaintiff is a gym and fitness center which was required to close its premises and cease all business operations in compliance with state government closure orders issued in response to the COVID-19 pandemic.

The Plaintiff commenced this action against its carrier seeking to recover damages under the business income, extra expense, and civil authority coverages contained in its commercial policy for the revenues lost and the additional costs incurred as a result of the pandemic and the resulting closure Orders.

The court noted that, unlike the other Lackawanna County case on similar issues such as The Scranton Club v. Tuscarora Wayne Mut. Group, Inc., 2021 WL 454498 (C.P. Lacka. Co. 2021 Nealon, J.), appeal pending, No. 238 MDA 2021 (Pa. Super. 2021), the insurance policy in this Brown’s Gym case did not contain an exclusion in its business interruption insurance coverages for losses caused by a virus or pandemic. The court in this matter additionally noted that the gym had specifically alleged in its Complaint that the COVID-19 virus was actually present on its covered premises and the neighboring properties, and that all public access to the insured’s property was prohibited as a result.

In his decision, Judge Nealon reviewed a number of pre-pandemic appellate and state court decisions in Pennsylvania addressing coverages in cases where a property has been rendered useless or uninhabitable by an invisible source. The court noted that, under a “physical contamination” theory, the courts have concluded that invisible sources such as ammonia fumes, e-coli bacteria, carbon monoxide, gas vapors, led intrusion, odor from cat urine, or methamphetamine cooking, which made a covered premises unusable, unsafe, or unfit for its intended use could constitute “physical loss of damage” under the terms of a commercial insurance policy.

Judge Nealon noted that, in the wake of the Coronavirus pandemic and the related government closure orders, “better reasoned decisions across the country have applied the ‘physical contamination’ theory in recognizing the applicability of business interruption insurance coverage only if the insured asserts that the COVID-19 virus was actually present on or attached to services on the covered property, and if the virus’ presence caused the insured premises to become uninhabitable, unusable, inaccessible, or unduly dangerous to use.

Based upon the Plaintiff’s allegations in this matter asserting the continuous presence of the COVID-19 virus on its property that allegedly rendered the property unusable, unsafe, inaccessible and unfit for its intended use, the court found that the gym had sufficiently alleged a “direct physical loss of damage” to its property under the “physical contamination” theory as a necessary condition to recover business interruption coverage.

The court also noted that there were other provisions in the insurance policy that created a reasonable expectation on the part of the gym that Coronavirus-related damages would be covered by the policy’s business interruption insurance coverage, but excluded from crisis event response communication expense coverage.

The court additionally found that the gym had a valid alternative claims for “business income” and “extra expense” recovery under its “civil authority” coverage.

Lastly, the court noted that, in light of the gym’s allegations that the carrier had misrepresented the terms of the policy and the monetary limits to the gym and had also denied the gym’s coverage request allegedly based upon the carrier’s own economic considerations as opposed to the merits of the claim, the court overruled the carrier’s demurrer to the gym’s declaratory judgment action as well as the claims for breach of contract and bad faith.

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


Source of image:  Photo by Anna Shvets from Pexels.com.

Yankees Triple-A Baseball Team Allowed to Proceed on Business Interruption Coverage Claim


In the case of SWB Yankees, LLC v. CNA Financial Corporation, No. 20-CV-0155 (C.P. Lacka. Co. Aug. 4, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a carrier’s Motion for Judgment on the Pleadings in a declaratory judgment action in which the Yankees Triple A Minor League baseball team sought to recover under the business interruption and civil authority coverage contained in its “all-risk” policy for the revenues lost and expenses incurred due to the presence of the COVID-19 virus on its covered premises and the resulting cancellation of games to be played at the stadium.

Judge Terrence R. Nealon
Lackawanna County


In making his ruling, Judge Nealon emphasized that the insurance policy at issue did not contain an exclusion in its business interruption coverage for losses caused by a virus or pandemic. 

The court additionally emphasized that the insured has expressly alleged in the pleadings that the Coronavirus was actually present on its covered premises.


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

Thursday, August 12, 2021

Plaintiff Allowed To Correct Defective Service on NY Defendants


In the case of O’Mara v. Perez, No. 4685-CIVIL-2020 (C.P. Monroe Co. June 4, 2020 Williamson, J.), the court reviewed Preliminary Objections filed by a Defendant alleging defective service of the Complaint and other objections.

According to the Opinion, this case arose out of an incident during which the Plaintiffs were allegedly hurt while guests at the Camelback Lodge's indoor waterpark.  Certain Defendants who allegedly assaulted the Plaintiffs at the resort resided in New York City. Plaintiff’s counsel filed a Writ and attempted to serve those Defendants.

The court noted that one of the Defendants who had filed Preliminary Objections had admittedly received a copy of the pleadings from her brother who had received the original process at his address.  The record also revealed that that same Defendant had also called Plaintiff’s counsel on at least two (2) occasions to request additional time to hire an attorney.  Plaintiff’s counsel did grant the Defendant additional time. 

After reviewing the Rules of Civil Procedure regarding service of process on a Defendant located outside of the Commonwealth of Pennsylvania, Judge David J. Williamson of the Monroe County Court of Common Pleas noted that the Defendant at issue asserted that she did not live at the property at which service was sent. Rather, her mother and her brother resided at that residence. The Defendant denied that her mother or brother had authority to accept service as her agent.

The court found that the testimony secured at a hearing on the issues presented supported a conclusion that the Defendant at issue did not reside at the address where the Writ was served.

The court noted that the burden then shifted to the Plaintiff who was unable to prove that the address where the Writ was served was the Defendant’s address.  The Court found that the Plaintiff was not able to meet this burden.  The court also found that the Plaintiff additionally failed in the burden of proving that the signers on the return receipt were authorized to accept mail on behalf of the Defendant.

As such, the court found that the service of the Writ on the Defendant at issue was indeed defective.

However, the court decided not to dismiss the action as to that Defendant. Rather, the court set aside that service of process that was completed at the incorrect address and allowed the Plaintiff’s attorney another opportunity to properly complete service. It appears from the Opinion that the court was influenced to rule in this fashion given that Plaintiff’s counsel had sufficiently explained reasonable steps that were taken to find and serve that Defendant. The court also reiterated that the Defendant at issue had admittedly received a copy of the process from her brother and had even called Plaintiff’s counsel and confirmed that she received a copy and was requesting more time to obtain legal counsel.

Under these facts, the court found, under the words of Lamp v. Heyman, that there was no evidence that the Plaintiff attempted to stall the legal machinery that she had set in motion.  Rather, the court found that the record established that Plaintiff’s counsel had acted in good faith to both locate and attempt to serve the Defendant at issue.

Judge Williamson additionally noted that there was no evidence of any prejudice suffered by the Defendant. Rather, the evidence showed that the Defendant at issue had knowledge of the lawsuit and even called Plaintiff’s counsel to request additional time to secure an attorney.

As such, the court issued an Order sustaining the Demurrer as to improper service of the Writ. However, the court did not dismiss the action but, instead, directed the Plaintiff to make service of the Writ on the Defendant at issue in a manner consistent with the Rules of Civil Procedure after the Writ is reissued.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 13, 2021).

Source of Image:  Photo by Daniel Bendig from Pexels.

Tuesday, August 10, 2021

ARTICLE: Law of Fair Share Act Left Unsettled by Recent Decision

Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly regarding the newly unsettled status of the Fair Share Act in personal injury matters.


Law of Fair Share Act Left Unsettled by Recent Decision


By Daniel E. Cummins | July 29, 2021



Dan E. Cummins of Cummins Law.

The Pennsylvania Superior Court recently issued a notable decision earlier this year in March 2021 with respect to the Fair Share Act in the case of Spencer v. Johnson. That case was recently settled before any further appellate review could be had on the important issue of the scope and ambit of the Fair Share Act.

As noted below, questions remain as to what extent that act may apply in a case involving an innocent plaintiff with no percentage of responsibility. For example, questions have arisen as to whether an innocent plaintiff, such as an innocent guest passenger plaintiff involved in a car accident, or a medical malpractice plaintiff injured as a result of treatment, may assert that the Fair Share Act does not apply to their case such that they should be able to recover the entire verdict against any responsible defendant, even if that defendant is only found to be 1% responsible.
 
Background of the Fair Share Act

By way of background, under the “old” rule of joint and several liability, if any defendant was found even to only be 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

Then, in 2011, the Pennsylvania legislature passed the Fair Share Act.

Under the Fair Share Act, it became Pennsylvania law that each defendant would only be responsible to pay for that percentage of the verdict that a jury assessed to that defendant. There was one notable exception in this context, i.e., if any one defendant was found to be 60% or more responsible for the happening of an accident, that defendant would be responsible to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

There are other exceptions to the Fair Share Act as well, including in cases involving Dram Shop claims, but those other exceptions are not covered here.

And so, litigants proceeded under the Fair Share Act for a decade since its passage into law back in 2011. Then came along the case of Spencer v. Johnson earlier this year that has caused this area of the law to become somewhat unsettled.

The ‘Spencer v. Johnson’ Decision

In the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), an innocent plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife’s company car while allegedly under the influence of alcohol.

In the complaint, the plaintiff alleged negligence by the driver and various negligent entrustment type claims against the defendant driver’s wife and the company that owned the car.

According to the facts of the case, the wife had been given a car by her employer to use. The evidence also showed that the wife was considered to be on the job 24/7.

The jury handed down a verdict in favor of the plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence, as follows:

Defendant driver: 36%

Wife: 19%

Company: 45%

Notably, the jury did not assess any percentage of responsibility to the injured plaintiff. On appeal, the parties agreed that the plaintiff did not, in any way, contribute to the happening of the accident.

At the trial court level, once the verdict was handed down by the jury, the plaintiff, in an excellent strategic move to try to get the verdict paid by a deep pocket defendant, filed a motion to mold the verdict. The plaintiff’s motion requested the court to mold, or modify, the verdict by adding the percentage of responsibility assessed by the jury to the wife (19%) with the percentage of responsibility assessed to the wife’s employer (36%), such that it would appear that over 60% of the verdict had been assessed to the deep pocket employer defendant.

The innovative claim by the plaintiff was that, since the employer was vicariously liable for the actions of the wife, i.e., its employee, then those percentages of liability should be combined as one sum.

The plaintiff then argued that, under such a scenario, since the employer defendant would then be on the hook for over 60% of the verdict under the application of the Fair Share Act, the plaintiff should then be entitled to recover all of the nearly $13 million dollar verdict from that deep pocket employer defendant.

As noted, the trial court denied the plaintiff’s motion to mold the verdict. This appeal then ensured.

The Appeal

On appeal, the Pennsylvania Superior Court that the defendant employer that owned the company car that the defendant driver was driving was jointly and severally liable for the entire award because the 19% liability of the wife should have been added to the 45% responsibility assess to the defendant employer under the vicarious liability theory, which would put the c company at a percentage over the 60% limit of the Fair Share Act for holding a defendant jointly and severally liable.

In other words, the appellate court accepted the plaintiff’s argument that the wife’s negligence should be imputed to the company’s negligence because the wife-employee was acting within the scope and course of her employment with the company at the time of the accident. As such, the court accepted the plaintiff’s argument that the company should be held to be vicariously liable for the wife’s alleged negligence. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict.

The above decision represented the holding of the court in this case on the responsibility of the defendant owner. Then, in the latter part of its lengthy opinion the Pennsylvania Superior Court went further and reviewed other issues it had with the Fair Share Act.

Since this additional analysis by the Superior Court on the Fair Share Act comes after the court decided the issue before it, this analysis is arguably dicta. Under the law, dicta is statements or commentary made by a judge that is not a necessary part of the reasoning behind a judge’s holding or decision. Such commentary is not considered to be binding law.

More specifically, the Superior Court went on to note that, “assuming arguendo,” or assuming for the sake of argument, that the defendant employer was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the act only applies to cases in which the plaintiff’s comparative negligence is an issue in the case, that is, where the plaintiff is assessed a percentage of responsibility for causing his or her own accident.

The court in Spencer v. Johnson noted that, in its reading of the Fair Share Act, the plain language of the act does not address or cover scenarios where there is no allegation that a plaintiff was negligent or in any way responsible for his own injuries.

In the opinion, the court also reasoned that there is no indication that the Legislature intended to make changes to the concept of joint and several liability in cases where a plaintiff has not been found to be comparatively negligent. In other words, the court noted that, in cases involving an innocent plaintiff, the “old” 1% rule of joint and several liability of responsible defendants should apply—that is, in a case where a plaintiff is 0% responsible, any defendant found at least 1% responsible should have to pay the entire verdict.

The court in Spencer v. Johnson noted that because the facts in Spencer did not involve a comparatively negligent plaintiff, the court, as an alternative basis, reasoned that it would have declined to apply the Fair Share Act and concluded that defendant wife (employee) and the defendant employer were jointly and severally liable for the plaintiff’s injuries.

The Debate Begins

It is noted that, before this decision could be reviewed any further by any other appellate court, the case was settled. As such, this decision remains on the books as published, precedential case law and leaves plaintiffs and defense attorneys to debate on whether the portion of the decision addressing the Fair Share Act is binding law or just nonbinding dicta or an advisory opinion by only two Superior Court judges where the third judge assigned to the case sat out of the decision-making process.

Some commentators (and likely all plaintiffs attorneys) read the portion of the opinion on the scope of the Fair Share Act to suggest that, where there is no finding of comparative negligence on the plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a plaintiff could recover the verdict against any defendants that are found liable regardless of their percentage of liability assessed by the jury, i.e., a return to the days where a defendant could be made to pay the entire verdict even if that defendant was only found to be 1% responsible.

Defense counsel and carriers have a valid basis upon which to argue that this part of the opinion appears to be nonbinding dicta and may be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act.

Regardless, in the case of Spencer v. Johnson, the Pennsylvania Superior Court voiced an opinion on this important issue that may be heeded by some courts in the future at least as guidance on the question presented or rejected by other courts as nonbinding dicta or a nonbinding advisory opinion.


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

Copyright 2021. ALM Media Properties, LLC. All rights reserved.

Monday, August 9, 2021

Forum Selection Clause in UIM Policy Upheld as Unambiguous


In the case of Van Divner v. Sweger, No. 1129 MDA 2020 (Pa. Super. June 24, 2021 Bowes, J., Dubow, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court addressed an appeal from a trial court Order granting Preliminary Objections filed by the UIM carrier in this motor vehicle accident case on the issues of the application of the forum selection clause in the policy.

The injured party Plaintiffs asserted that the trial court erred in granting the Defendant's Petition to Transfer the Case to another County on the basis of a forum selection clause.   The Plaintiff argued that the forum selection clause was allegedly ambiguous in terms of at what point the residency of the insured should be determined to apply under the forum selection clause, i.e., either at the time the policy was purchased or at the time of the accident.

The Superior Court found that the trial court had erred in transferring the UIM claim under the forum selection clause to another county. The court found that the forum selection clause was not ambiguous and clearly tied the relevant time of residency to the time that the action was brought. As such, the trial court’s Order was vacated and remanded for further action.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 13, 2021).


Source of image:  Photo by Clement Nivesse from Pexels.

Friday, August 6, 2021

ARTICLE: "Does Jury Size Really Matter? Maybe. Maybe Not" Republished in the ABA's Judge's Journal Magazine

 

Here is a LINK to a copy of my article "Does Jury Size Really Matter? Maybe. Maybe Not," which was republished by permission in the American Bar Association's Judge's Journal, a publication of the Judicial Division of the American Bar Association.  The article was originally published in the Pennsylvania Law Weekly.

The article collects research on jury sizes (12? 8? 6?) and analyzes whether there are any differences in jury trial results based upon the number of jurors in the box.

I send thanks to the editors of the Judge's Journal, including Melissa Hodek, Judge Stephanie Domitrovich and Judge Willie Epps, Jr. for selecting this article for publication.



Wednesday, August 4, 2021

Court Holds Defense to Task with New Matter Pleadings


In the case of Kremser v. Lindauer, No. CV-21-0022 (C.P. Lyc. Co. April 30, 2021 Tira, J.), the court granted a Plaintiff’s Preliminary Objections to a Defendant’s Answer and New Matter in a motor vehicle accident case.

In its New Matter, the defense included a paragraph that stated that the “Defendant reserves the right to raise additional affirmative defenses which may become known during the investigation of this case or throughout the discovery process.”

The trial court sustained the Plaintiff’s Preliminary Objections this New Matter pleading. The court emphasized that Pennsylvania is a fact-pleading state.  The court noted that, under Pa. R.C.P. 1019(a), “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.”  As such, all pleadings must sufficiently stated  in order to put the opponent on notice of the issues presented.

The court also sustained the Defendant’s assertion of an affirmative defense in the New Matter in which the Defendant cited to the entirety of the Pennsylvania Motor Vehicle Financial Responsibility Law. The court stated that such catch-all all provisions are improper under the Rules of Civil Procedure whether they are attempted by a plaintiff or a defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 6, 2021).

Source of Image:  Photo by Wesley Tingey on unsplash.com

Monday, August 2, 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:


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