Thursday, September 30, 2021

Peer Review Privilege for Hospital's Documents Reviewed


In the case of Gill v. Children’s Hospital of Philadelphia, No. 180900385 (C.P. Phila. Co. July 19, 2021 Foglietta, J.), the court addressed a Defendant hospital’s appeal of its Discovery Order granting the Plaintiff’s Motion to Strike the hospital’s privilege objections related to hospital documents and powerpoint presentations that were created following an outbreak of a virus in the neonatal intensive care unit.

The Defendants argued that the Peer Review Protection Act and the Medical Care and Availability and Reduction of Error (MCARE) Act served to protect from discovery the documents that the Plaintiff had requested in discovery.

In this Rule 1925 Opinion issued by the trial court, the trial court disagreed with the Defendant’s arguments.

The trial court noted that the creation date and the content of the hospital’s documents at issue indicated that they were not protected by the peer review privilege. The court also noted that the hospital had already disclosed some of the information at issue to third parties, which served to waive any claimed privilege.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).


Source of image:  Photo by National Cancer Institute on Unsplash.com.

Tuesday, September 28, 2021

Summary Judgment Denied in Limited Tort Case


In the case of Cialella v. Allstate Prop. & Cas. Ins. Co., No. 10469-CV-2018 (C.P. Lawr. Co. June 10, 2021 Motto, J.), the court denied a Defendant’s Motion for Summary Judgment based upon limited tort defenses in a motor vehicle accident case.

The court ultimately ruled that genuine issues of material fact existed as to whether or not the Plaintiff has sustained a serious injury.

According to the record before the court, the Plaintiff’s treating doctors diagnosed the Plaintiff with a cervical radiculopathy, cervicalgia, a lumbosacral strain, rotator cuff tendonitis, and a transient synovitis. During the course of her care, the Plaintiff received injections to treat the injuries to her cervical spine, elbow, and shoulder.

The Plaintiff’s medical expert also offered his opinion that the Plaintiff sustained permanent injuries and that she would require future treatments, including an annual radiofrequency ablation procedures and three (3) cervical epidural steroid injections every year for her cervical spine complaints.

The trial court in this matter reviewed the factors set forth under the care of Washington v. Baxter, 719 A.2d 733 (Pa. 1998).

In addition to reviewing the Plaintiff’s injuries and treatment, the court also noted that, after the accident, the Plaintiff had to quit her job as a housekeeper due to her limitations that prevented her from performing her duties. The Plaintiff did return to a part-time housekeeping job but alleged that she was limited to part-time work due to her left arm issues. The Plaintiff additionally testified that she could no longer enjoy her hobby of painting with arm pain.

As noted above, the court found that genuine issues of material fact prevented the entry of summary judgment on the limited tort defense.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 7, 2021).


Source of image:  Photo by Jackson Simmer on Unsplash.com.

Monday, September 27, 2021

Judge Brann of Federal Middle District Refuses to Create New Duty in Fraternity Hazing Cases


In the case of Jean v. Bucknell University, No. 4:20-CV-01722 (M.D. Pa. Sept. 9, 2021 Brann, J.), the court granted a Motion to Dismiss in a college fraternity hazing personal injury case.

Judge Brann ruled that allegations of off-campus fraternity hazing, unknown to and unsupported by the Defendant university did not justify the creation of a new tort duty to discover and halt such conduct.

As part of his ruling, the court noted that the creation of a duty to ferret out and prevent hazing would effectively require a prohibition of all student group gatherings without direct university supervision.

The court otherwise noted that institutions of higher learning do not owe any in loco parentis duty to its students.

In the end, the court found that hazing incidents involving separate, unaffiliated organizations are too attenuated to constitute facilitation or recklessness allegations.

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

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.

Source of image:  Photo by Victor Svistunov on unsplash.com.

Friday, September 24, 2021

Superior Court Rules That Employee Who is a Certified Medical Marijuana User Can Sue For Wrongful Termination Under Medical Marijuana Act


Tort Talkers may recall the previous blog post on the decision by Lackawanna County Court of Pleas Judge Terrence R. Nealon in the of Palmiter v. Scranton Quincy Clinic Co., in which Judge Nealon ruled that an employee terminated from her employment due to her medical marijuana use as prescribed by her medical providers may sue for wrongful termination.

As an update, it is noted that the Pennsylvania Superior Court recently affirmed Judge Nealon’s decision. The Opinion can be found at Palmiter v. Scranton Quincy Clinic Co., No. 498 MDA 2020 (Pa. Super. Aug. 10, 2021 Dubow, J., Bowes, J., Stevens, P.J.E.) (Op. by Bowes, J.).

In a case of first impression upon appeal, the Pennsylvania Superior Court ruled that an employee fired for despite their status as a certified medical marijuana user may sue for wrongful termination. The court noted that the Plaintiff could pursue a claim for wrongful discharge under the Medical Marijuana Act after her hospital employer discharged her for a positive drug test.

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

Source: Article-“Employees Terminated for Medical Marijuana Use May Sue: Court.” By Aleeza Furman. Pennsylvania Law Weekly (Aug. 17, 2021).

Source: Photo by Christina Winter on Unsplash.com.

Wednesday, September 22, 2021

Please Consider Booking Your Mediations With Cummins Mediation Services


 BRING YOUR CASE TO A CLOSE



 (570) 319 - 5899

dancummins@CumminsLaw.net

Recent Recklessness Decisions of Note


There continues to be a split of authority in the state trial court’s across the Commonwealth of Pennsylvania relative to the issue of whether a claim for recklessness in a personal injury case must be supported by specific averments of outrageous facts or whether such a claim can be generally pled in any case whatsoever regardless of the facts presented.

According to my research, which has been included in a proposed article submitted for possible pulication in the January of 2022 edition of the Pennsylvania Bar Association Quarterly, at least 18 county courts have ruled that while a claim of recklessness may be generally stated in a Complaint such allegations must still be supported by a sufficient set of outrageous facts in order to proceed.  The research also reveals that only at least 9 county courts have ruled that a claim of recklessness may be stated in in any case whatsoever regardless of the facts alleged.  It is also noted that there are some splits of authority within certain counties.

In its most recent decision on the issue, the Pennsylvania Superior Court affirmed a trial court's granting of preliminary objections asserted against claims of recklessness where it was found that the Plaintiff had only alleged facts in support of a negligence claim and not any facts to show any outrageous behavior on the part of the defendant.  See Valentino v. Philadelphia Triathlon, LLC150 A.3d 483, 488-489 (Pa.Super. 2016).   Notably, in Valentino, the Pennsylvania Superior Court did not even reference the dicta from Archibald v. Kemble as being of any moment on the question presented.

Below are some additional trial court decisions that have come to light:


Ulshafer v. Roth, No. S-711-21 (C.P. Schuyl. Co. Aug. 30, 2021 Miller, J.) (In an Order only, the court sustained a Defendant’s Preliminary Objections against allegations of recklessness in a motor vehicle accident case after the defense asserted that the Complaint did not have sufficient allegations of outrageous facts to support such claims.) (It is noted that Attorney Stephen T. Kopko of Cummins Law was defense counsel in this matter.) Click HERE to view this Court Order.
 
 

Fermin v. Sanchez, No. 1235-CV-2021 (C.P. Monroe Co. June 15, 2021 Zulick, J.) (By Order only, the court denied Defendant’s Preliminary Objections to recklessness and held that, pursuant to Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), recklessness is a state of mind which may be averred generally in a Complaint.) Click HERE to view this Court Order.


Benedict v. Giombolini, No. 21-CV-1134 (C.P. Lacka. Co. Aug. 18, 2021 Gibbons, J.) (Court overruled Defendant’s Preliminary Objections asserted against allegations of recklessness in a rear-end motor vehicle accident case; court relies upon Archibald v. Kemble for the proposition that an allegation of recklessness is an allegation as to a party’s state of mind which may be pled generally.) Click HERE to view this Court Opinion.


Heisler v. Harvey, No. 2021-CV-0-0273 (C.P. Leb. Co. Aug. 25, 2021, Jones, J.) (The court overruled a Defendant’s Preliminary Objections asserted against allegations of recklessness in a head-on motor vehicle accident case; the court relied upon, in part, Pa.R.C.P. 1019(b). The court found that the Preliminary Objections stage was too early in the matter to rule out a claim for punitive damages when the question of whether conduct is reckless or outrageous is one that is better left for after the close of discovery; as such, the court found that the Defendants attempt to rule out a punitive damages claim by requesting the court to strike language from the Complaint was premature. Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Kevin P. Foley of the Foley Law Firm in Scranton for providing me with copies of the Fermin, Benedict, and Heisler cases.




Maloney v. Murray, No. 2020-SU-000629 (C.P. York Nov. 9, 2020 Menges, J.)(The court overruled a defendant’s Preliminary Objections in a car accident case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to provide the defendant with appropriate notice to defend a cause of action for recklessness.). Anyone wishing to review this case may click this LINK.

I send thanks to Attorney Carrie McConnell of the Harrisburg, PA office of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this Maloney case to my attention.




Oathout v. Masonic Temple Assoc., No. 10892 - 2020 (C.P. Erie Co. July 15, 2020 Ridge, J.)(The court overruled a defendant’s Preliminary Objections in a slip and fall case after finding that the facts asserted by the plaintiff in the Complaint were sufficient to support recklessness claims.).
Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Bruce L. Decker, Jr., of the Erie, PA office of MacDonald, Illig, Jones & Britton, LLP for bringing this Oathout case to my attention.



Source of image:   Photo by Brendan Church on Unsplash.com.

Tuesday, September 21, 2021

Post-Trial Motions Denied in Zero Verdict Personal Injury Case


In the case of Kim v. Weishaupt, No. 2018-C-1698 (C.P. Lehigh Co. Jan. 11, 2021 Johnston, J.), the court denied a Plaintiff’s post-trial motions after a defense verdict in a rear-end motor vehicle accident litigation.

According to the Opinion, at trial, the Defendant stipulated to negligence but denied causing the injuries and damages alleged by the Plaintiff. The jury returned a verdict in favor of the Defendant.

The Plaintiff filed post-trial motions asserting that he was entitled to either a new trial or judgment notwithstanding the verdict. The Plaintiff claimed that the weight of the evidence overwhelmingly established that the Defendant’s negligence caused the Plaintiff’s injuries.

After reviewing the applicable standard of review, the court noted that, a jury was entitled to believe some, all, or none of the evidence presented. The court additionally noted that, if the jury did not believe the expert testimony presented at trial, it was free to disregard such testimony. The court noted that “[f]or example, the experts base their opinions, in part, on subjective information provided by Plaintiff and, if the jury does not find Plaintiff credible, the jury is free to disregard the expert testimony.” See Op. at p. 3.

The court also noted that a jury was not obligated to resolve the question of causation in the Plaintiff’s favor simply because a Defendant had stipulated to liability. 

The court reviewed the evidence presented and stated that the jury’s decision had a reasonable relationship to the evidence presented and did not shock the judicial conscience. 

 The court otherwise noted that there was contradictory evidence regarding the existence and the cause of the Plaintiff’s injuries, which also served to support the jury's verdict.

As noted, the Plaintiff’s post-trial motions were denied.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 24, 2021).


Source of image:  Photo by Bernard Hermant on Unsplash.com.

Thursday, September 16, 2021

Fitness Center's Exculpatory Release Muscles Out Plaintiff's Claim


In the case of Urena v. L.A. Fitness, No. 20-964 (E.D. Pa. July 29, 2021, Schmehl, J.), Court granted summary judgment in a personal injury case arising out of an injury that occured at a fitness center.

The Court ruled that an exculpatory waiver agreement involving voluntary recreational activities is valid and enforceable. The Court found that the waiver did not implicate any public policy as private recreation does not implicate any public interest.

The Court additionally rejected the Plaintiff’s argument that the agreement was a contract of adhesion since the Plaintiff was under no compulsion to exercise at a gym.

Notably, the Court also ruled that a signed exculpatory clause can not be avoided by a signatory’s claim of an inability to understand English.

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


I send thanks to Attorney James M. Beck of the Reed Smith Law Firm from Philadelphia for bringing this case to my attention.

Source of Image:  Photo by Samuel Girven on Unsplash.com.

Tuesday, September 14, 2021

Motion to Preclude Expert in Fire Loss Case Denied


In the case of Allstate Ins. Co. v. LG Elec. USA, Inc., No. 2:2021-CV-00187 (E.D. Pa. July 8, 2021 Baylson, J.), the Eastern Federal District Court of Pennsylvania denied a Defendant’s Motion to Exclude a Plaintiff’s expert in a fire loss subrogation matter.  In allowing the Plaintiff's expert's opinion to remain in the case, the court found that issues of material fact precluded the entry of summary judgment in favor of the Defendant.

The court ruled that, where a Plaintiff’s expert ruled out all other potential causes of a house fire and determined that there were two potential causes, both of which would have been the result of an alleged manufacturing defect, that expert was not required to show which of those two (2) potential causes occurred given that either one of those causes would result in the imposition of liability on the Defendant.

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


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

Source of image:  Photo by Aldo Prakash on Unsplash.com.



Friday, September 10, 2021

PLEASE NOTE: TORT TALK CLE THAT WAS SET FOR SEPT. 14TH HAS BEEN MOVED TO SEPT. 22

 PLEASE NOTE!!

The ZOOM CLE seminar being put on for Lackawanna County entitled "Back To School With Tort Talk: A Civil Litigation Update" has been moved from September 14, 2021 to September 22, 2021 at noon.

The reason for the change is that this CLE conflicted with another CLE that was already on the Bar's calendar.

If you are already registered, there is NO NEED to re-register.

However, if you are unable to attend the new date, the Bar requests that you please let the Bar know by email to kmcdonough@lackawannabar.org or by calling the Bar at 570-969-9161 so that one of the limited ZOOM invite spots can be opened back up for another possible registrant.

Below is the revised Ad for the event with the new date:






Summary Judgment Denied in Trip and Fall Case Where Issues of Fact Remain on Whether Doormat was a Dangerous Condition


In the case of O’Connor v. Speedway Super America LLC, No. 20-1453 (E.D. Pa. July 30, 2021 Joyner, J.), the court denied a Defendant’s Motion for Summary Judgment in a case where the Plaintiff alleged that she tripped on a floor mat.

The court found that, under the record before it, it was for the jury to determine if the mat presented a dangerous condition and whether the alleged condition had existed long enough for the landowner to be deemed to have had constructive notice of the condition. The court also noted that testimonial differences required that the case be allowed to proceed.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 19, 2021).

Trip and Fall Case Allowed to Proceed to Jury on Question of Whether Defect Was Open and Obvious


In the case of Perotti v. Festival Fun Parks, LLC, No. 2:19-cv-1176 (W.D. Pa. July 27, 2021 Stickman, J.), the court denied a Defendant amusement park’s Motion for Summary Judgment in a trip and fall matter.

According to the Opinion, the Plaintiff tripped and fell on a hole in the ground in a parking lot.

The Plaintiff and her witness testified that the hole was difficult to see and that the Plaintiff never saw it before she fell.

The Defendant argued that it was entitled to summary judgment because the hole was open and obvious and should have been seen or known to by any reasonable passerby.  As stated, the Plaintiff and her witness alleged that the hole could not be easily seen. The Plaintiff and her witness even asserted that the hole was camouflaged.

The court ruled that, based upon the record before it, including the descriptions of the hole, an issue of material fact existed and it was for the jury to determine whether the hole was open and obvious.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 12, 2021).

Source of image (not subject park): Photo by Israel Palacio on Unsplash.com.

Thursday, September 9, 2021

Consider Booking Your End-of-Year Mediations Now

BRING YOUR CASE TO A CLOSE


 (570) 319 - 5899

dancummins@CumminsLaw.net

Minor League Baseball Team Pops Out on Business Interruption Claim

In the case of Lehigh Valley Baseball LP v. Philadelphia Indem. Ins. Co., Dec. Term, 2020, No. 00958, Control No. 21020014 (C.P. Phila. Co. June 17, 2021 Glazer, J.), the court ruled that the Plaintiff minor league baseball team failed to show that they sustained any direct physical loss due to the COVID-19 pandemic and that, as a result, the Plaintiffs were not entitled to recover under the business loss provision of their insurance policy.  

The court also found that a virus exclusion under the policy also barred the Plaintiff’s claims.   


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


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


Source of image: Photo by Chris Briggs on Unsplash.com.


Federal Judge Denies Motion For Summary Judgment Filed by Carrier on Coverage Issues Related to Alleged Fraternity Hazing Death

In the case of Nationwide Gen. Ins. Co. v. Dibileo, No. 3:19-CV-01003 (M.D. Pa. July 20, 2021 Brann, J.), the court denied a carrier’s Motion for Summary Judgment in its Declaratory Judgment Action regarding issues of coverage under a homeowner’s insurance policy arising out of alleged actions by fraternity students in an alleged hazing death.   

The court found that the action filed by the decedent’s parents stated a claim for negligence.  The court found that policy provisions in the homeowner’s policy excluding coverage for criminal and intentional acts did not serve to insulate the carrier from the negligent claims asserted by the plaintiff in the underlying personal injury action. 


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 (Aug. 17, 2021). 


Tuesday, September 7, 2021

UPCOMING LACKAWANNA COUNTY CLE SPONSORED BY CUMMINS MEDIATION (non-members welcome)




 

Pennsylvania Superior Court Addresses Attorney-Client Privilege and Attorney Work Product Privilege

In the case of Carlino E. Brandywine, L.P. v. Brandywine Vill. Assoc., No. 1194 EDA 2019 (Pa. Super. July 23, 2021 Stabile, J., McLaughlin, J., Stevens, P.J.E.) (Op. by Stabile, J.), the Pennsylvania Superior Court vacated a trial court’s decision in a land dispute matter and remanded a case for further proceedings, after ruling that, where Defendants raise the affirmative defenses of reliance upon advice of counsel and counsel’s good faith reliance upon applicable law, the Defendants opened the door to a waiver of the attorney-client and the work product privileges.

However, the Pennsylvania Superior Court limited the trial court’s decision in this matter by finding that the trial court erred in finding a blanket privilege waiver and in assuming that a waiver of the attorney-client privilege would also necessarily waive the attorney work product protection.

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


Source: “Digest of Regional Opinion” Pennsylvania Law Weekly (August 17, 2021).

Friday, September 3, 2021

STILL TIME TO REGISTER FOR TORT TALK CLE IN LUZERNE COUNTY (Live or Zoom -- 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.




Hearsay Exceptions Addressed in Context of Med Mal Case


In the case of Delguercio v. Tio, No. 19-CV-3604 (C.P. Lacka. Co. Aug. 19, 2021 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a certain Defendants’ Motion In Limine to preclude hearsay testimony in a medical malpractice action.

According to the Opinion, the Defendant generally filed a Motion In Limine to preclude the Plaintiffs from introducing hearsay testimony at trial unless such testimony fell within one of the enumerated exceptions to the hearsay rule. The Plaintiff filed a response asserting that the testimony at issue was admissible under the hearsay exceptions set forth under Pa. R.E. 803(3) and (4).

This case involved a malpractice action under which the Plaintiff asserted that the Plaintiff allegedly received negligent treatment in the emergency room relative to a deep vein thrombosis condition and/or a stroke condition.

The disputed hearsay statements involve statements made by the Plaintiff’s husband to the attending physician as well as the statements contained in the Plaintiff’s husband’s deposition testimony regarding the Plaintiff’s symptoms and complaints during the course of her treatment. Some of the statements by the husband involved statements that the Plaintiff had made to her husband as to why she reported to the emergency room for the subject treatment.

After reviewing the law of hearsay and the relevant exceptions, Judge Nealon found that the statements by the Plaintiff’s husband were admissible pursuant to the hearsay exception under Pa. R.E. 803(4) which is entitled “Statement Made for Medical Diagnosis or Treatment.” 

The court noted that it was the longstanding law of Pennsylvania that the medical treatment exception to the hearsay rule provides that testimony repeating out-of-courts statements which were made for the purpose of receiving medical treatment are admissible as substantive evidence.  In order for such a statement to qualify for admission under the “medical treatment exception,” it must be made “for the purpose of receiving medical treatment” and be "necessary and proper for a diagnosis and treatment.” See Op. at 6.

The court found that the statements at issue made by the Plaintiff’s husband to the Plaintiff’s treating doctor were clearly made for and relevant to the Plaintiff’s diagnosis and treatment. The court noted that it was inconsequential that the pertinent medical history was provided by the husband rather than the Plaintiff herself, since statements need not be made by the incapacitated patient in order to be admissible pursuant to the medical treatment exception. The court also noted that there is no requirement of corroboration of the information provided before the offered statement is admissible. Nor is the admissibility of the evidence disqualified where the person offering the evidence is an interested party.

The court also found that the statements made by the Plaintiff’s husband regarding the Plaintiff’s complaints of pain, tingling, and other symptoms was admissible as a statement of her physical condition and pain at the time in question. The court noted that Pennsylvania Rule of Evidence No. 803(3) establishes a hearsay exception for any “statement of the declarant’s then-existing….emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)….”  See Op. at 7

The court noted that, in order to be admissible, such statements must overtly describe or relate to a mental, emotional, or physical condition that then exist and must be made contemporaneously with the mental or physical condition, regardless of when, why, or how the condition was caused or produced. Id. at 7-8.

After applying this law to the statements in question, the court found that additional statements were admissible as well.

As noted above, the Defendant’s pre-trial Motion In Limine in this medical malpractice action was denied.

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

Source of image:  Photo by Tingley Law Firm on Unsplash.com.

Thursday, September 2, 2021

Upcoming Tort Talk Civil Litigation Update CLEs for Lackawanna and Luzerne Counties are the Same Presentation

 


Sending out a notice to confirm that the upcoming CLE entitled "Back To School:  A Civil Litigation Update From Tort Talk" that is being put on for the Wilkes-Barre Law Library Association on September 9th and for the Lackawanna Bar Association on September 14th are BOTH THE SAME PRESENTATION

Non-members are welcome.

Thanks for considering attending.


Technology assistance and Powerpoint Playback is being provided at both events by Exhibit A (ExhibitAdigital.com)



Each presentation is sponsored by CUMMINS MEDIATION SERVICES:


Contact Dan Cummins at (570) 319-5899 or
at dancummins@CumminsLaw.com 
to schedule your next Mediation in an effort 
to bring your case to a close.




Preliminary Objections by Out-of-Possession Landlord Sustained in Part and Overruled in Part in Dog Bite Case


In the case of Rodgers v. Guerrieri, No. 1526 of 2020 G.D. (C.P. Fayette Co. April 1, 2021 Vernon, J.), the court granted an out-of-possession landlord’s Preliminary Objections to a Plaintiff’s dog bite Complaint. However, the right to amend was granted to the Plaintiff.

According to the Opinion, a minor Plaintiff was attacked by a dog on the premises. In addition to suing the owners of the dog, the Plaintiffs also sued the out-of-possession landlord Defendant.

The out-of-possession landlord Defendant filed Preliminary Objections on various grounds.

The court sustained the landlord Defendant’s Preliminary Objections with respect to the claims of negligence given that the Plaintiff only utilized conclusory allegations.

However, the court denied the Motion of the out-of-possession landlord Defendant to strike the claim for punitive damages. While the court found that the allegations of punitive damages set forth under a separate count was procedurally improper, the court noted that, if the Plaintiff included allegations of outrageous conduct or reckless indifference, a punitive damages claim would be pursued under the facts presented.

The court noted that, where an out-of-possession landlord had knowledge of the presence of a dangerous animal on the premises and had the right to control or remove the animal by retaking possession of the premises, the landlord could be held liable for injuries caused by the animal.

As noted above, the Preliminary Objections of the landlord Defendant sustained but the Plaintiff was allowed to file an Amended Complaint.

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


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

Source of Image: Photo by Julissa Helmuth from Pexels.com.

Summary Judgment Granted in Dog Bite Case Due To Lack of Proof of Prior Vicious Propensities


In the case of MR v. Bunting, No. 6856-CV-2019 (C.P. Monroe Co. June 8, 2021 Williamson, J.), the court granted summary judgment in favor of the Defendants on the Plaintiff’s negligence per se and negligence claims arising out of a dog bite incident. The court also granted summary judgment on the claim for punitive damages.

According to the Opinion that the minor Plaintiff was allegedly bitten by a dog at a birthday party. There was an allegation that, following the incident, the dog owner allegedly told the guardian of the minor that the dog had bitten someone before.

After the case proceeded through discovery, the dog owner filed a Motion for Summary Judgment. 

With regards to the allegations that the dog owner had violated the Pennsylvania Dangerous Dog Law and was, therefore, negligent per se, the court found no evidence in the record that the law had been violated under the facts presented. 

The court noted that the fact that the dog owner allegedly mentioned that the dog had bitten someone in the past was not sufficient in and of itself. Rather, Judge Williamson noted that the evidence had to show that the dog had previously caused severe injury without provocation and that there was no evidence of this in the record.

The court also noted that liability only existed under theory of negligence per se if the owner knew or had reason to know of the animal’s dangerous propensities. Judge Williamson stated that there was no evidence in the record regarding the nature and circumstances of any alleged prior bite.

Although there was evidence that the dog would growl in the past, the record revealed that this behavior was more consistent with play growling, rather than aggressive growling. The court found that the Plaintiff did not provide any evidence that the dog had vicious tendencies.

As such, summary judgment was granted.

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


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


Source of image (not of the dog in question):  Photo by Karsten Winegeart on unsplash.com.

Wednesday, September 1, 2021

Magistrate Judge Mehalchick of Federal Middle District Court Tackles Inter and Intra-Policy UIM Stacking Issues


In the case of Blizman v. The Travelers Home and Marine Ins. Co., No. 3:19-CV-01539 (M.D. Pa. Aug. 30, 2021 Mehalchick, M.J.), United States Federal Middle District Court Magistrate Judge Karoline Mehalchick issued a Memorandum Opinion in which she decided multiple Motions for Summary Judgment in a UIM stacking insurance coverage action.

Judge Mehalchick’s Opinion is written with notable clarity, which cannot always be counted on in stacking decisions.

In Blizman, the Plaintiffs sought a judicial declaration that the Defendant’s insurance policy should provide stacked underinsured motorist coverage for the injuries sustained by the decedent in a motor vehicle accident.

Judge Mehalchick previously reviewed the same issues in this case at the Motion to Dismiss stage of this case. The Tort Talk entry, which contains a Link to that decision, can be viewed HERE.

In her latest decision in the Blizman case, Judge Mehalchick granted the Plaintiff’s Motion for Summary Judgment and found that the Plaintiff was entitled to pursue both inter and intra-policy stacked UIM benefits under the insurance policy in question.

According to the Opinion, the Plaintiff purchased car insurance from the Defendant in March of 2008 on three (3) vehicles that they owned. The Defendant carrier obtained a waiver of stacked limits for UIM coverage at that time. Also contained in the policy was a household vehicle exclusion, which excluded coverage for bodily injuries sustained by any person while occupying a motor vehicle owned by the injured party or any family member which was not insured under the Defendant’s policy.

The policy at issue was amended in January of 2009 to add a fourth vehicle. The Plaintiff was not provided a new opportunity to reject stacked coverage. The declaration sheet issued at that point continued to reflect non-stacked UIM coverage.

In a “change” to the policy that occurred effective December 5, 2009, a vehicle was removed from the policy, resulting in three (3) vehicles remaining under the policy. The Defendant carrier did not obtain a new rejection form following the removal of that fourth vehicle.

The Plaintiff also asserted that, in a renewal of the policy dated September 5, 2014, a vehicle was removed which resulted in two (2) vehicles remaining under the policy. It was noted that the Defendant did not obtain any new rejection form following that change as well.

Ten (10) years later, the subject accident occurred in June of 2019 when the decedent suffered fatal injuries while driving a scooter.

The tortfeasor’s vehicle was insured by yet another carrier for bodily injury limits of up to $25,000.00. The scooter was insured by a Progressive Insurance policy with UIM coverage of up to $25,000.00.

At the time of the collision, the policy issued by Travelers, the Defendant carrier in this matter, provided for $100,000.00 in unstacked UIM coverage for each of the Plaintiff’s two (2) covered vehicles. The Plaintiff pursued UIM benefits under the policy and brought this declaratory judgment action seeking a judicial declaration that the Plaintiff was entitled to stacked UIM coverage under the case presented.

According to the Opinion, the tortfeasor tendered its limits as did the UIM carrier for the policy covering the scooter which the decedent was operating at the time of the accident.

The Plaintiffs requested Travelers to acknowledge and pay the policy’s UIM coverage. Thereafter, this declaratory judgment action was filed when the dispute arose between the parties with respect to the coverage.

The court reviewed the issue under arguments involving inter-policy stacking and intra-policy stacking.

Judge Mehalchick noted that the Pennsylvania Supreme Court recently clarified that stacking waivers, such as the one at issue in this case, are inapplicable to inter-policy stacking when multiple vehicles are insured under the policy containing the waiver. The court cited to the very recent Pennsylvania Supreme Court decision in Donovon v. State Farm Mut. Auto. Ins. Co., ___ A.3d ___, 2021 WL 3628706 (Pa. Aug. 17, 2021).

Judge Mehalchick noted that, under the Donovon case, the language of the statutory waiver only applies to intra-policy stacking issues, that is, efforts to secure stacking on multiple vehicles listed within a single policy. The court followed the Donovon rule that the language of the statutory waiver form did not apply to inter-policy stacking in terms of an attempt by a Plaintiff to stack coverages under separate policies of insurance.  As such, the court granted the Plaintiff’s Motion for Summary Judgment and found that the Plaintiff was entitled to inter-policy stacking under the policy at issue.

The Court in Blizman went on to address whether the waiver executed by the Plaintiffs back in 2008 was otherwise still valid as of the time of the subject accident with respect to stacking.  The Court found that the waiver was not still valid.

In this regard, Judge Mehalchick generally noted that, under 75 Pa. C.S.A. §1738(a) there is a presumption under the law that UIM coverage is to be stacked in Pennsylvania. However, the law provides that a named insured may waive coverage providing stacking of UM or UIM benefits by executing a stacking waiver in the language prescribed under 75 Pa. C.S.A. §1738(d).

In this matter, the Defendant pointed to a stacking waiver that was secured back in 2008 and asserted that that waiver remained valid as of the date of the accident in 2019 even though there were changes to the policy in the interim.

Federal Magistrate Judge Karoline Mehalchick
M.D. Pa.

Judge Mehalchick noted that, every time UM/UIM insurance is purchased by adding a vehicle to an existing policy, a new stacking waiver must be executed. In this regard, the court cited to Sackett v. Nationwide Mut. Ins. Co., 919 A.2d 194, 196-97 (Pa. 2007)(“Sackett I”).

Judge Mehalchick noted that, however, if coverage is extended to a vehicle added to an existing policy through a continuous after-acquired vehicle clause, then a new stacking waiver does not need to be executed even if the insurance premiums are increased. Judge Mehalchick cited to Sackett v. Nationwide Mut. Ins. Co., 940 A.2d 329, 334 (Pa. 2007) (“Sackett II”) in this regard.

The court noted that, therefore, the central issue of this case was whether the vehicle acquired by the Plaintiff in 2009 was added through and after-acquired vehicle clause. If it was, then a newly executed stacking waiver was not necessary and the 2008 waiver was still in effect at the time of the accident in accordance with Sackett II. However, if the vehicle was not subject to the after-acquired vehicle clause, then a new stacking waiver was required under Sacket I and the presumption that UIM coverage should be stacked would be controlling on the case.

In her Opinion, Judge Mehalchick noted that, as of the date of her decision, the Pennsylvania Supreme Court had not yet addressed the application of an after-acquired vehicle clause to a vehicle added to a policy’s declarations page at the time of acquisition.

As such, the court turned to the law last decided by the Pennsylvania Superior Court in the case of Kline v. Travelers Personal Sec. Ins. Co., 223 A.3d 677, 681 (Pa. Super. 2019). In that case, the Pennsylvania Superior Court addressed a situation in which an insured who had signed a stacking waiver form at the inception of his policy subsequently added two (2) vehicles to the existing policy. That insured was not presented with new stacking forms at the time the change was made. Approximately ten (10) years thereafter, the Plaintiff then signed a stacking waiver at the inception of the policy, and after the two (2) vehicles were added to the policy, the Plaintiff was involved in an accident. The Plaintiff then sought to stack the UIM coverage under his policy.

The Pennsylvania Superior Court in Kline affirmed the trial court’s decision that the Plaintiff was entitled to stacked coverage under the facts presented. The trial court in Kline had emphasized that the Plaintiff had notified Travelers each time he acquired an additional vehicle. The insurance company then subsequently generated amended declarations sheets on both occasions and increased the Plaintiff’s premiums to reflect the additional vehicles. As such, the court in Kline found that the Plaintiff’s vehicles were added to the policy via endorsements and were covered by the general terms of the policy as opposed to the after-acquired vehicle clause.

The trial court in Kline had also held that the Plaintiff had made “purchases” for purposes of 75 Pa. C.S.A. §1738 when his premiums were increased as vehicles were added to the policy.

For these reasons, the trial court held that Travelers failed in its obligation to obtain new stacking waivers from the Plaintiff at the time his two (2) vehicles were added to the policy. As noted, the Pennsylvania Superior Court in Kline affirmed the trial court’s conclusion and reasoning.

Judge Mehalchick found that the facts in the Blizman case before her were governed by the Kline decision. The Plaintiffs in this Blizman case and the Kline case both notified the carrier when new vehicles were added to the policy and both Plaintiffs were subjected to increased premiums to reflect the additional vehicles under the policy.

Where, as in Blizman, vehicles were added to the insurance policy through endorsements when the insured notified the carrier at the time the additional vehicle was acquired, an amended declaration sheet was subsequently generated in conjunction with that notification, and were premiums were increased to reflect the additional vehicles, the court found that the vehicles were added to the Plaintiff’s policy under the general terms of the policy and the not the after-acquired vehicle clause.

As such, Judge Mehalchick held for this additional reason that the carrier was obligated to acquire a new executed waiver of stacked UM/UIM coverage limits from the Plaintiff. Given that the carrier had failed to do so, the court ruled in favor of the Plaintiffs.

Lastly, Judge Mehalchick also addressed the applicability of the household vehicle exclusion in the policy. The carrier submitted that the exclusion should operate to preclude the Plaintiff’s claim for UIM benefits. The Defendant asserted that the case of Gallagher v. Geico, 201 A.3d 132 (Pa. 2019) was factually distinguishable.

Judge Mehalchick agreed with the Plaintiff’s argument that the household vehicle exclusion had no bearing on the resolution of this case as the question of the applicability of that exclusion was previously decided by Judge Mehalchick in her Opinion issued earlier in the case with respect to a Motion to Dismiss filed by the carrier. Judge Mehalchick noted that the holding in the prior decision made it clear that, in the absence of a valid stacking waiver such as was found in this case, a household vehicle exclusion could not otherwise serve to prevent stacked UIM coverage.

In this regard, the court again pointed to the ruling in Gallagher that a household vehicle exclusion cannot be used as a de facto waiver of stacked UIM coverage when an insured does not formally waiver stacking through the statutorily-prescribed UIM coverage waiver.

Given that the court found that there was no valid stacking waiver in this case, the carrier’s Motion for Summary Judgment under the household vehicle exclusion was denied.

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


I send thanks to Attorney Joseph Martam of the Property & Liability Resource Bureau (PLRB) for bringing this case to my attention.

Source of image at top: Photo by Lidya Nada on Unsplash.com.