Tuesday, November 30, 2021

No Bad Faith Where Plaintiff Failed to Pay Premium and UIM Policy Was No Longer In Effect


In the case of Gonzales v. State Farm Mutual Automobile Insurance Company, No. CV 20-4193 (E.D. Pa. Oct. 21, 2021 Schmehl, J.), the court granted summary judgment in favor of the carrier in a breach of contract and bad faith claim in the UIM/medical payments context.

The court noted that summary judgment was entered in favor of the carrier on the basis that the insured failed make all payments necessary to keep the policy in effect.

Given that the policy was not in effect at the time of the incident at issue, the court found that the carrier could not have breached its coverage obligations.

The court noted that, given that the carrier was granted summary judgment on the breach of contract claim, it followed that carrier was also entitled to summary judgment on the bad faith claims as well.

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


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

Monday, November 29, 2021

Registration Now Open for Upcoming Tort Talk CLE via Zoom - December 21, 2021 at 12:30 p.m.

TORT TALK

in conjunction with 


PRESENTS

A YEAR END REVIEW OF CIVIL LITIGATON 
CASES AND TRENDS

(Via ZOOM)

Tuesday, December 21, 2021
12:30 pm - 1:30 p.m.


Join Daniel E. Cummins, writer of the Tort Talk Blog (www.TortTalk.com), via Zoom for his hourlong review and analysis of the top civil litigation decisions and trends from over the past year or so.  Cases and trends in the areas of Auto Law, Premises Liability Law, Medical Malpractice Law, Pleadings Issues, Discovery Matters, and General Civil Litigation will be covered.

Costs

PADC Members - FREE

Non-Members - $45.00


To Register

Email David Cole, Executive Director of PADC
dcole@philadefense.org



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Pennsylvania Supreme Court Addresses Parameters of Coordinate Jurisdiction Rule



In the case of Rellick-Smith v. Rellick, No. 23 WAP 2020 (Pa. Oct. 20, 2021), the Pennsylvania Supreme Court addressed issues regarding the coordinate jurisdiction rule in terms of judges of the same jurisdiction overruling the decision of another judge from the same jurisdiction.

According to the Opinion, at the trial court level, one judge had first ruled that a defendant had waived a statute of limitations defense by failing to plead it, and a second trial court judge from the same court later allowed that defendant to amend the Answer and New Matter to plead the statute of limitations as an affirmative defense.    

At the Pennsylvania Supreme Court level, the Court in this decision found that a second judge’s Order allowing the amendment to a first judge’s Order necessarily conflicted with the first Order. The Supreme Court also found that the second decision by the second judge was actually precluded by the wording of the first Order that had been entered.

The Pennsylvania Supreme Court additionally confirmed that the coordinate jurisdiction rule could not be avoided by any claims that the first Order was erroneous or that there had been some intervening change in the law.

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

To view Justice Donohue's Concurring Opinion, please click HERE.

To view Chief Justice Baer's Dissenting Opinion, please click HERE.

To view Justice Mundy's Dissenting Opinion, please click 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.

Wednesday, November 24, 2021

HAPPY THANKSGIVING

 

SENDING BEST WISHES TO YOU

FOR A 

HAPPY THANKSGIVING


Grateful for your readership and your contributions to TortTalk.com

Thank you very much.

Dan Cummins


Source of image: Photo by Amy Shamblen on unsplash.com.


Tuesday, November 23, 2021

Sanctions Order Regarding Certificate of Merit Vacated on Appeal


In the case of Green v. The Trustees of the University of Pennsylvania, 2021 Pa. Super. 2009 (Pa. Super. Oct. 19, 2021 Bowes, J.), the court addressed the rules surrounding Certificate of Merit, the failure to produce one, and the possible sanctions as a result.

The Pennsylvania Superior Court described its opinion in this case as a “cautionary tale for attorneys or venture outside their area of expertise into unfamiliar specialized area of litigation without educating themselves on the applicable rules and law.”

This case arose out of a medical malpractice claim.

In its decision, the Pennsylvania Superior Court reviewed the current status of the law on sanctions under Pa.R.C.P. 1023.1 Pa.R.C.P. 1023.4 and Pa.R.C.P. 1042.

In the end, the appellate court vacated the trial court's entry of sanctions in the amount of over $84,000 and remanded the case for further analysis of the request for sanctions under the standard of review outlined in this case.

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


I send thanks to Attorney Daniel J. Siegel of the Law Offices of Daniel J. Siegel in Havertown, Pennsylvania for bringing this case to my attention.


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

Monday, November 22, 2021

Another Victory for Carrier in Another Covid-19 Business Interruption Coverage Dispute

In the case of Warrick v. Aspen Am. Ins. Co., No. 2:21-CV-00250-WSS (W.D. Pa. Oct. 15, 2021 Stickman, J.), the court granted a Defendant’s Motion to Dismiss a Plaintiff’s claim for business interruption coverage based upon alleged COVID-19 losses.   

According to the Opinion, Warrick is a dentistry business.   During the COVID pandemic, the business had a policy with the Defendant insurance company, which included coverage for loss business income under covered circumstances.   


The court found that the governmental mitigation orders under the COVID-19 pandemic did not prohibit access to the Plaintiff’s premises and the Plaintiff’s alleged losses did not stem from direct physical damage to its property.  The court also found that there was no coverage under the business income, extra expenses, or civil authority provisions of the policy. 


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


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


Source of image: Photo by Karolina Grabowska from Pexels.com.

Friday, November 19, 2021

Thursday, November 18, 2021

Pennsylvania Superior Court Addresses Dead Man's Rule


In the case of Frazer v. McIntyre, 2021 Pa. Super. 211 (Pa. Super. Oct. 20, 2021 McCaffery, J.), the Pennsylvania Superior Court provided its latest pronouncement on the Dead Man’s Rule, 42 Pa. C.S.A. §5930.

In this decision, the court noted that the Dead Man’s Act provides that one whose interest is adverse to the interest of a decedent is not a competent witness to any matter which occurred before the decedent’s death.

In order for the Deadman’s Rule to apply such that a surviving witness is disqualified, the following three (3) conditions must be met:

First, the decedent must have had an actual right or interest in the matter at issue.

Second, the interest of the witness, and not simply the testimony of that witness, must be adverse.

Third, a right of the deceased must have past to a party of record who represents the decedent’s interests.

The court also reviewed the devisavit vel non exception further provides that witnesses are competent to testify in disputes arising over the passage of property, through will or intestacy, although their testimony might otherwise be rendered in competent through the operation of the general rule under the Dead Man’s Act. 

This exception was noted to apply to disputes involving transfer of the decedent’s estate both by operation of law or by will and renders competent all witness claiming the decedent’s property by reason of his death.

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


I send thanks to Attorney Daniel J. Siegel of the Law Offices of Daniel J. Siegel in Havertown, Pennsylvania for bringing this case to my attention.

Tuesday, November 16, 2021

Court Grants Trucking Defendant's Motion to Amend its Answer and New Matter to Change Denials to Admissions


In the case of Bellersen v. Gill, No. 19-CV-2686 (C.P. Lacka. Co. Nov. 1, 2021 Nealon, J.), Judge Terrence R. Nealon addressed a motion filed by a trucking Defendant in a motor vehicle accident litigation under which the trucking Defendant sought to amend its Answer and New Matter to change previous denials in its original Answer and New Matter relative to the facts and the cause of the accident.

The trucking Defendant sought to admit factual allegations of the accident and to further admit that the Defendant driver’s failure to use due care while driving his vehicle on Interstate 380 caused him to rear-end the vehicle in front of him which, in turn, caused that vehicle to rear-end the vehicle that the Plaintiff was driving, and further caused the front of the Plaintiff’s vehicle to hit the vehicle in front of the Plaintiff.

It was noted in the Opinion that, while this proposed amendment was offered up two (2) years after the original Answer and New Matter was filed, no trial date was scheduled in the case and discovery was ongoing.

The Defendant offered up a proposed Order that not only granted his motion but also contained language under which the Defendant driver seeking the court to rule that such admissions shall not be used as any admission of any type of conduct which could serve as the basis for the imposition of punitive damages.

Judge Terrence R. Nealon
Lackawanna County


In his Opinion, Judge Nealon reviewed the rules regarding pleading, which he confirmed are to be liberally applied. The court also noted that there was no time limit under Pa.R.C.P. 1033 for the filing of any request for an amendment to a pleading.

The court granted the Defendant’s Motion and allowed the amendment but held any decision on the impact of any such amendment on any claim for punitive damages for a later day.

The court noted that the Defendant’s request that the Plaintiff be prevented from making any evidentiary use of the allowed admissions in support of the Plaintiff’s punitive damages claims was not an appropriate consideration relative to the request for leave of court to amend a pleading under Rule 1033. Rather, the court noted that the preclusion of evidence at trial is more properly a subject for a Motion In Limine to be decided by any assigned trial judge.

The court emphasized that any admission that the trucking Defendant would put in his Answer and New Matter would be considered a judicial admission. However, any legal conclusions in the Plaintiff’s Complaint, such as allegations of negligence and/or recklessness, would not qualify as judicial admissions under Pennsylvania law.

Anyone wishing to review a copy of this interesting Opinion by Judge Nealon in the case of Bellersen may click this LINK.


Source of top image: Photo by Mike from Pexels.com.


LOOKING TO TRY TO BRING YOUR TRUCKING ACCIDENT CASE TO A CLOSE BEFORE THE END OF THE YEAR?

TRY CUMMINS MEDIATION SERVICES


CALL (570) 319-5899 

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Monday, November 15, 2021

Friday, November 12, 2021

Court Rejects Defendants Petition to Open Default Judgment


In the case of Hackett v. Home Solutions Group, LLC, No. 190202344 (C.P. Phila. Co. July 13, 2021 Foglietta, J.), the court denied the Defendant’s Petition to Open and/or Strike a Default Judgment after finding that the Defendant failed to timely respond to the Plaintiff’s Complaint after receiving proper service of the same.

This matter arose out of claims by a Plaintiff-property owner who asserted that a Defendant developer trespassed and encroached upon her property during the Defendants’ construction activities on adjacent properties.

A central issue in this case was whether service of the Plaintiff’s Complaint was proper. After reviewing the record, the court found that service was indeed proper.

Applying the 3-prong test for the opening of a default judgment, the court noted that the Defendant would have to show that (1) the Petition to Open the Judgement was promptly filed, (2) that the Defendant had a meritorious defense, and (3) that there was a reasonable excuse for the Defendant’s failure to answer the Plaintiff’s Complaint in a timely fashion.

The court reiterated that the Plaintiff had made proper service. The court also found that the Defendants could not meet the third prong of the test in that they did not have a reasonable excuse failing to file an Answer for over twenty-one (21) months.

The court found no basis for the opening of the default judgment and the Defendants’ Petition was dismissed.  The trial court issued this Rule 1925 Opinion requesting that the Superior Court affirm its decision.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 28, 2021).


Source of Image:  Photo by Tingley Injury on Unsplash.com.




Tuesday, November 9, 2021

Motion To Compel Discovery on Meaning of Virus Exclusion in Covid-19 Business Interruption Coverage Case Denied


In the case of 1800 Farrugut, Inc. v. Utica First Ins. Co., No. 2:20-cv-03449-KSM (E.D. Pa. Sept. 16, 2021 Marston, J.), the court ruled that a business owner seeking a judicial declaration that it was entitled to losses caused by the COVID-19 pandemic governmental shutdown orders could not obtain targeted discovery on the meaning of the virus exclusion in its insurance policy where the meaning of the exclusion was unambiguous and plainly barred the Plaintiff’s claims for recovery.

According to the Opinion, the Plaintiff owned a restaurant and bar which was subjected to governmental shutdown orders during the COVID pandemic. Thereafter, the business sought business interruption coverage from its carrier.

According to the Opinion, the court found that the insurance policy contained a plainly worded virus exclusion.

As noted above, during the course of this declaratory judgement action regarding coverage, the court denied the Plaintiff’s efforts to compel discovery relative to the meaning of the virus exclusion.

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 (Oct. 8, 2021).


Source of image:  Photo by Markus Winkler on Unsplash.com.

Expert Testimony By Nurses on Future Medical Expenses Allowed


In the case of Jones v. Nicolani, No. CV-2018-007110 (C.P. Del. Co. Oct. 4, 2021 Eckel, J.), the court denied a Defendant’s Motion In Limine filed in a motor vehicle accident seeking to preclude the testimony of two (2) of the Plaintiff’s experts, who were registered nurses who were retained by the Plaintiff to testify as to the estimated future medical costs the Plaintiffs may incurred as a result of the accident.

The Defendants asserted that certain medical cost projections from which these experts’ opinions derived were based upon a source, known as “Context4Healthcare,” that, according to the Defendant, was similar to another source (Fairhealth.org) that had been found by two other courts to be unreliable.

The court in this matter reviewed the record before it, including the Plaintiff’s arguments that the Plaintiffs’ experts had relied upon other sources as well to render their opinions.  In the end, the court noted the Plaintiff's experts had relied upon multiple sources of information and that the Defendants were free to cross-examine these experts on their reliance upon the data in question.

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

I send thanks to Attorney Joshua D. Baer and Attorney Andrew Baron, both of Simon & Simon, P.C. in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Tingsley Law Firm on unsplash.com.
 

Monday, November 8, 2021

Judge Nealon of Lackawanna County Discusses Discovery Sanctions and the Code of Civility


In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. Oct. 29, 2021 Nealon, J.), Judge Terrence R. Nealon provided lessons on the current law for deciding motions for sanctions on discovery issues and regarding civility amongst counsel.

This matter arose out of a motor vehicle accident. During the course of discovery, a dispute arose over the Defendant’s apparent refusal to respond to discovery requests seeking liability insurance documents.

Despite the trial court issuing multiple Orders compelling the Defendant to respond to various discovery requests, the requested information was allegedly not forthcoming. As such, the Plaintiffs filed a Motion for Sanctions.

In reviewing the Motion for Sanctions, the court reviewed the current status of Pennsylvania law with regards to the imposition of sanctions under Pa. R.C.P. 4019 when a trial court’s discovery Orders are not obeyed.

Judge Nealon noted that, under Pennsylvania law, while the trial court judges are afforded great discretion in fashion and remedies or sanctions for violations of discovery Rules and Orders, the law does require that the court select a punishment that “fits the crime.”

Judge Nealon reviewed the five (5) separate factors that are considered to be a necessary part of the consideration when reviewing a request for sanctions based upon a discovery violation.

Those five (5) factors are:

(1) the nature and severity of the discovery violation;


(2) the defaulting party’s willfulness or bad faith in failing to comply with discovery;


(3) the resulting prejudiced to the other party;


(4) the non-offending party’s ability to cure any prejudice; and,


(5) the number of discovery violations by the non-compliant party.


After applying these factors to the case before him, the judge confirmed that the Defendant had continuously ignored its discovery obligations, willfully disobeyed the discovery Orders of Court, and unnecessarily strained the limited judicial resources by the Defendant’s actions.

As such, the court granted the Plaintiff’s Motion and awarded counsel fees and reasonable expenses in connection with the preparation of the Motion for Sanctions. The court did grant the Defendant the right to contest the reasonableness and necessity of the fees that may be put forth by the Plaintiff.

The court also noted that the conduct at issue in this case was violative of the Pennsylvania Code of Civility’s aspirational provisions advocating civil, respectful, and courteous discourse, and also discouraging acrimonious speech and disparaging personal remarks.


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


Source of image:  Photo by Lukas from Pexels.com.

Friday, November 5, 2021

Lackawanna Pro Bono Gala (Virtual) Is Next Week


For more information about Lackawanna Pro Bono's Virtual Fundraising Gala and to purchase tickets and/or sponsorships, please click HERE.



 

Eastern Federal District Court Transfers Trucking Accident Case to State of Georgia Where Accident Happened


In the case of Miller v. Sawa Transp. Inc., No. 2:21-CV-02308-AB (E.D. Pa. Sept. 27, 2021 Brody, J.), the court ruled that proper venue for a motor vehicle accident claim was the federal district where the crashed occurred and not where the injured party received medical treatment. As such, the court granted the Defendant’s Motion to Transfer Venue and sent the case to the state of Georgia. 

According to the Opinion, the Plaintiff was driving a tractor trailer in the state of Georgia when he was rear-ended by a truck operated by the Defendant’s driver, who is also apparently operating a tractor trailer. The Defendant tractor trailer companies were both organized and headquartered in the state of Georgia.

The Plaintiff filed the cause of action in the Eastern Federal District of Pennsylvania, i.e., in Philadelphia. 

The Defendants moved to transfer the case to a federal district court in Georgia, arguing that the Eastern District of Pennsylvania was an improper venue. The Plaintiff opposed the motion by asserting that his medical treatment had occurred in Pennsylvania and that, since liability was not in dispute and the only issue was damages, he should be permitted to keep the case in Pennsylvania.

As noted above, the court rejected the Plaintiff’s arguments and granted the Defendants’ Motion to Transfer.


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 (Oct. 14, 2021).

Thursday, November 4, 2021

Court Allows Discovery of Forgery Based Evidence in Support of Negligent Hiring, Supervision, and Retention Claim in an MVA Case


In the case of Wolo v. Lennon, No. 2019-CV-6855 (C.P. Lacka. Co. Oct. 7, 2021 Minora, S.J.), Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s Motion to Compel what the Plaintiff had dubbed as “forgery based discovery.”

According to the Opinion, this case arose out of a motor vehicle accident involving a Defendant school bus driver. In the Plaintiff’s Complaint, the Plaintiff alleged claims of negligent hiring, supervision and/or retention of the Defendant bus driver by the Defendant bus company.

During the course of discovery, the Plaintiff requested signature exemplars from the Defendant driver and another employee of the busing company based upon a purported suspect appearance of the bus driver’s signature on four (4) separate documents within his employment file.

The court noted that, during the course of discovery, the Defendant bus driver questioned the veracity of his signatures at his deposition and even noted in one (1) instance that his name was misspelled.

The Defendants objected to the discovery by arguing, in part, that this case centered on injuries related to a subject motor vehicle accident and not to forgery issues.

The court noted that the Defendant’s position failed to consider the Plaintiff’s negligent hiring cause of action against the Defendant bus driver. In this regard, the court noted that, in her Complaint, the Plaintiff alleged that the bus company was negligent not only in hiring the bus driver but for failing to train him properly and for allowing him to operate a commercial motor vehicle without the required qualifications.

Judge Minora noted that the documents in the bus driver’s personnel file raised questions as to the authenticity of the bus driver’s signature. Some of these documents purported to certify the bus driver’s receipt from his employer of certain written materials, training documents, and policy documents, the receipt of which by a commercial driver was required by federal regulations. 

The court noted that, arguably, evidence which would show that the bus driver did not receive these materials or that the signatures certifying his receipt of the same were forged, court tend to establish that the bus company was allegedly negligent in its hiring, supervision, and/or retention of the bus driver as an employee.  As such, the discovery was allowed.

While the court did essentially grant the Plaintiff’s Motion to Compel the production of documents with exemplar signatures, the court limited the scope of the number of documents that were required to be produced by the Defendant.

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

I send thanks to Attorney Gerard W. Gaughan of O'Donnell Law in Kingston, PA for bringing this case to my attention.

Source of image:  Photo by Austin Pacheco on Unsplash.com.

Wednesday, November 3, 2021

COVID-19 Business Interruption Coverage and Bad Faith Claims Dismissed


In the case of Round Guys Brewing Co. v. Cincinnati Ins. Co., No. CV-20-6252 (E.D. Pa. Sept. 22, 2021 Sanchez, J.), the court found that no coverage was due in this COVID-19 business loss coverage case.

After finding no coverage due, the court also dismissed the Plaintiff’s claim for bad faith after noting that the carrier’s position in denying coverage in this case was widely supported by the case law. As such, the court noted that the carrier’s denial of coverage in this business interruption coverage case was reasonable and that the Plaintiff had failed to adequately pled the elements of bad faith.

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 New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.

Eastern District Federal Court Dismisses UIM Bad Faith Claim Due to Insufficient Facts


In the case of Kelly v. Progressive Advanced Ins. Co., No. CV 20-5661 (E.D. Pa. Sept. 27, 2021 Jones, II, J.), the court dismissed a UIM bad faith claim after finding that the Plaintiff had failed to plead sufficient facts. The court did grant the Plaintiff leave the amend the Complaint.

At issue were the Plaintiff’s claims of an insufficient claims investigation by the carrier and other poor claims-handling allegations.

While the court emphasized that a bad faith claim against an insurance company can include claims of a lack of investigation, unnecessary or unfounded investigation, failures to communicate with an insured, or failure to properly acknowledge or act upon a claim, as well as other poor claims handling assertions, a Plaintiff cannot merely say that a carrier acted unfairly but instead “must describe with specificity what was unfair.”

Judge Jones additionally noted that a Complaint alleging bad faith must specifically include facts to address who, what, where, when, and how the alleged bad faith conduct occurred. The court reiterated that bare bones bad faith pleadings in the federal district courts of Pennsylvania are routinely dismissed.

Turning the Complaint before it, the court in this Kelly case found that the pleadings by the Plaintiff were inadequate and were devoid of facts necessary to infer a plausible bad faith claim. The court noted that, other than the date of the accident, the Complaint did not contain any references to dates or timespans with regards to allegations that the carrier’s alleged actions were untimely.

The court additionally noted that the Plaintiff’s claims that the carrier’s lack of a thorough claims assessment was unreasonable but that the Plaintiff did not provide any indication as to how these alleged deficiencies were unreasonable.

The Complaint was also found to lack any factual content to suggest that the Defendant carrier lacked a reasonable basis for denying the UIM coverage or that the Defendant knew or recklessly disregarded the lack of any reasonable basis, which is the bad faith standard.

The court therefore granted the Motion to Dismiss filed by the carrier but allowed the Plaintiff the right to amend.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention. Attorney Applebaum is also the creator of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.


Source of Image:  Photo by Brett Jordan from Pexels.com.

Monday, November 1, 2021