Tuesday, December 21, 2021

ARTICLE: Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation


Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly.  It is republished here with permission.


Plaintiffs Have Another Banner Year in Civil Litigation, Part 2: General Civil Litigation

By Daniel E. Cummins | December 16, 2021


Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo



The year 2021 proved to be another banner year for the plaintiffs bar in terms of securing important civil litigation court decisions that favor plaintiffs’ causes, some of which overturned decades of precedent going the other way. The concerted, and admirable, effort of the plaintiffs bar in continually fighting their good fight and in banding together to support certain judicial candidates to ensure that they make it up onto the bench continues to pay off in spades and in settlements. In essence, as confirmed by the decisions reviewed below, where there is a will, there is indeed a way.

This first part of the article, which previously appeared in this paper, reviewed the important decisions and trends in the automobile insurance law arena over the past year. This second part of the article will review the notable decisions in the area of general civil litigation law.

Fair Share Act

The Pennsylvania Superior Court recently issued another notable plaintiff-friendly decision in 2021, this one with respect to the Fair Share Act. Although wordy and filled with dicta, the decision foreshadows ongoing litigation on the parameters of the act after a decade of relative quiet since the Fair Share Act was passed.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021), a 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.

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 among three defendants and found that the plaintiff-pedestrian was innocent.

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 relative to the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict with regards to adding the percentage of responsibility assessed to the wife with that assessed to the defendant company, the sum of which amounted to a figure of more than 60%. Under the Fair Share Act, the plaintiff was therefore permitted to secure the entire verdict from the deep pocket defendant company.

The Superior Court also went on to note that, “assuming arguendo,” the company 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 comparative negligence has also been assessed to the plaintiff as well.

The plaintiffs bar has read this portion of the opinion to suggest that, where there is no finding of comparative negligence on a 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 entire verdict against any defendant even if that defendant was only found to be 1% responsible.

In contrast, the defense bar has asserted that this part of the Spencer v. Johnson Opinion appears to be dicta and should only 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 given that one judge on the Superior Court panel sat out of the decision.

Look for the applicability of the Fair Share Act to remain a hot issue in the years to come.

Attorney Malpractice

In addition to being plaintiff-friendly in 2021, the Pennsylvania Supreme Court was also attorney-friendly over the past year or so. In the attorney malpractice case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 22, 2020), the Pennsylvania Supreme Court was requested by the plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdictions, to toll the statute of limitations.

Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the defendants’ representation was terminated.

In a decision that benefits attorneys, the court refused to adopt the continuous representation rule and instead held that the occurrence rule would be followed in Pennsylvania. The “occurrence rule,” holds that the statutory period commences upon the happening of the alleged breach of duty by the attorney.

As such, the statute of limitations may begin to run earlier in the underlying case, depending upon when the breach occurs. This may lead to some malpractice plaintiffs finding that their malpractice claims against their attorneys have become time barred by the time the plaintiff decides to take action.

Medical Malpractice

In addition to issuing a notable decision in the arena of attorney malpractice claims, the Pennsylvania Supreme Court also weighed in on issues arising in medical malpractice matters over the past year.

The pendulum has shifted so far to the plaintiffs’ side in terms of their recent successes in the courts on important civil litigation questions of law that a decision by the Pennsylvania Supreme Court that went against the wishes of the plaintiffs bar came as a surprise to many.

In the case of Leadbitter v. Keystone Anesthesia Consultants, No. 19 WAP 2020 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court issued a long-awaited decision relative to the scope of the Peer Review Protection Act in medical malpractice matters. The central question before the court was the extent to which a defendant doctor’s credentialing file was subject to discovery.

The court in Leadbitter noted that the privilege from discovery afforded by the Peer Review Protection Act only applies to a “review committee,” which is a committee engaging in peer review. However, the Pennsylvania Supreme Court agreed with the hospital’s argument that a credentials committee is a “review committee” for purposes of the Peer Review Protection Act to the extent that it reviewed the quality and efficiency of care provided by a healthcare practitioner.

The Pennsylvania Supreme Court additionally held that the Federal Healthcare Quality and Improvement Act of 1986 protected from disclosure the responses provided by the National Practitioner Data Bank to queries submitted to it.

On the basis of this ruling, the court held that the hospital’s credentialing file for one of the defendant doctors was protected from discovery by the above two acts. This decision has been viewed as a win for medical malpractice defendants and hospitals conducting credentialing activities as it allows those parties to secure candid feedback from physician peers on their colleague’s performance, quality and safety without fear that such feedback would have to be produced in discovery.

Covid-19 Business Interruption Coverage Claims

Over the past two years there has continued to be a number of business interruption coverage actions being pursued by businesses that were forced to close due to governmental COVID-19 pandemic orders.

Most of the court decisions in this regard have found that no coverage is warranted under the applicable business insurance policies as such policies only provided coverage for losses incurred for a direct physical loss or damage to the covered property, and the pandemic had caused no such specific physical damages. See e.g., Penn Asian Senior Services v. Selective Insurance, No. 20-4919 (E.D. Pa. Sept. 30, 2021 Pratter, J.).

The courts have also routinely rejected arguments for coverage based upon the civil authority coverage provisions under the policies. The courts have generally noted that, although the COVID-19 shutdown orders were issued by a civil authority, those shutdown orders were motivated by the pandemic, meaning that the plaintiff’s loss of income was at least indirectly caused by a virus for which coverage was otherwise excluded. See Star Buick v. Sentry Insurance, No. 5:20-CV-03023 (E.D. Pa. May 26, 2021 Leeson, J.).

More specifically, a number of state and federal courts have also found that business interruption coverage was precluded by the application of virus exclusions contained in the policies. See Infinity Real Estate v. Travelers Excess & Surplus Lines, No. 2:20-CV-06398-CMR (E.D. Pa. Sept. 13, 2021 Rufe, J.)

Isolated successes have been realized in this area of the law by businesses whose policies do not have a virus exclusion. In Brown’s Gym v. The Cincinnati Insurance, No. 20-CV-3113 (C.P. Lacka. Co. July 13, 2021 Nealon, J.), the court noted that the policy at issue did not have a virus exclusion that would serve to preclude coverage.

The court in Brown’s Gym also found that the business in this case had alleged that the COVID-19 virus was actually found to be present on its premises. Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court noted that, under a “physical contamination” theory recognized in Pennsylvania, invisible sources such as ammonia fumes, e-coli bacteria, carbon monoxide, gas vapors, lead intrusion, odor from cat urine, or methamphetamine cooking, which made a covered premises unusable, unsafe, or unfit for its intended use have been found to be conditions that could constitute “physical loss of damage” under the terms of a commercial insurance policy.

Nealon went on to opine that, in the wake of the coronavirus pandemic and the related government closure orders, “better reasoned decisions” from across the country have applied the physical contamination theory to implicate business interruption insurance coverage where the insured asserts that the COVID-19 virus was actually present on the covered property, and thereby caused the insured premises to become uninhabitable, inaccessible, or unduly dangerous to use as a result.

Accordingly, based upon the plaintiff’s allegations in the Brown’s Gym case asserting the continuous presence of the COVID-19 virus on its property that allegedly rendered the property unsafe, inaccessible and unfit for its intended use, the court found that the business had sufficiently alleged a “direct physical loss of damage” to its property under the “physical contamination” theory to proceed forward on its business interruption coverage claim.

Nealon also ruled in a similar fashion in his more recent decision in the case of SWB Yankees v. CNA Financial, No. 20-CV-0155 (C.P. Lacka. Co. Aug. 4, 2021 Nealon, J.).

It is anticipated that the COVID-19 virus will continue to make its presence known in these types of coverage disputes in the years ahead with varying results, depending upon the policy language at issue in any given case.

Conclusion

As the above review of the highlights (and lowlights) from the past year in civil litigation shows, the pendulum has certainly swung in favor of the plaintiffs bar in terms of court decisions. Plaintiffs attorneys will likely continue to push their important issues up the appellate ladder in the hopes of continued success in these plaintiff-friendly times. On the defense side, in addition to continuing to litigate many of these important issues, the defense bar may be wise to also increase efforts to effectuate changes in the law through the Legislature as a means to counter the adverse rulings in the court system.

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.

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