THE 2021 TORT TALK TOP TEN

10.  Regular Use Exclusion

In a case of appellate first impression of Rush v. Erie Insurance Exchange, No. 1443 EDA 2020 (Pa. Super. Oct. 22, 2021), the Pennsylvania Superior Court affirmed a Northampton County Common Pleas Court decision in a declaratory judgment action and held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the Motor Vehicle Financial Responsibility Law (MVFRL). This issue appears to be on its way up to the Pennsylvania Supreme Court.

Click HERE to view the Tort Talk Blog post on this case.


9.  Attorney Malpractice

In the case of Clark v. Stover, 242 A.3d 1253 (Pa. Dec. 20, 2020), the Pennsylvania Supreme Court adopted the "occurrence rule" for attorney malpractice cases and held that the statute of limitations in a legal malpractice claim begins to run when the alleged malpractice occurs.

The court rejected the "continuous representation rule" which holds that the statute of limitations in a legal malpractice claim would begin to run when the legal representation was concluded.

Please click HERE to view the Tort Talk Blog post on this case.



8.   COVID-19 Business Interruption Coverage Cases

Over the past year, many state and federal trial court judges grappled with coverage actions concerning whether the COVID-19 related governmental orders requiring businesses to close their doors supported Business Interruption coverage claims. There were mixed results, but a majority of the court decisions favored the insurance carriers with findings that the coverage provisions were not implicated and/or that exclusionary language within the policies were implicated.

To review Tort Talk Blog posts on these types of cases, please click HERE.



7.  Sudden Emergency Doctrine Still Valid in PA

In the case of Graham v. Check, 243 A.3d 153 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court reaffirmed the continuing validity of the sudden emergency doctrine for motor vehicle accident matters in Pennsylvania. However, the Supreme Court cautioned that the application should not be automatic and depends on appropriate facts being present for the doctrine to apply.

The Tort Talk Blog post on this decision can be viewed at this LINK.

My Pennsylvania Law Weekly article analyzing the impact of the Graham v. Check decision can be viewed HERE.



6.  Medical Malpractice

In the case of Leadbitter v. Keystone Anesthesia Consultants, 256 A.3d 1164 (Pa. 2021), much to the surprise of many, the Pennsylvania Supreme Court issued a defense-favorable decision and held that Peer review "proceedings" or "records" were not discoverable under the Pennsylvania Peer Review Protection Act.

To view the Tort Talk Blog post on this case, please click this LINK.



5.   Internet-Based Defamation Claims Can Be Filed Anywhere

In the case of Fox v. Smith, No. 39 EAP 2019 (Pa. Nov. 17, 2021) (Op. by Saylor, J.), the Pennsylvania Supreme Court addressed whether the standards governing the selection of an appropriate venue of litigating libel or defamation claims grounded on newspaper publications should also be applied to causes of action premised upon internet-based publications.

The Court ultimately ruled that internet-based defamation claims can be filed anywhere the defamatory statements were viewed and understood as defamatory.

The Tort Talk Blog post on this case can be viewed LINK.



4.  Allegations of Recklessness

Over the past year, trial court judges across Pennsylvania, and some even in the same county, have split over the types of factual allegations that may or may not be necessary to support an allegation that a tortfeasor defendant acted recklessly during the course of a personal injury-causing event.

Some more liberal trial court judges allow for allegations of recklessness to be pled with reckless abandon and allow such allegations in any case whatsoever, regardless of the underlying facts involved. These judges rely upon dicta from one appellate court decision along with a tortured reading of the law to conclude that, since an allegation of recklessness is an allegation as to a defendant's state of mind and since allegations as to a party's state of mind may be generally pled under Pa.R.C.P. 1019, then it must be that allegations of recklessness may also be generally pled.

A majority of other trial court judges follow the long-standing maxim espoused in numerous Pennsylvania appellate court decisions that Pennsylvania is a fact-pleading state and that, therefore, allegations of outrageous facts are necessary to state a claim of recklessness to thereby potentially open the door to a punitive damages claim.

Look for my article in the upcoming January edition of the Pennsylvania Bar Quarterly outlining both sides of this issue and noting that further appellate guidance is needed to put the issue to rest.

To view at least 63 Tort Talk Blog posts on cases involving allegations of recklessness, please click this LINK.



3.  Household Exclusion Finally Dead?

In 2020 and 2021, there remained questions as to whether the Household Exclusion was still a valid exclusion after the Pennsylvania Supreme Court's decision in Gallagher v. GEICO.

Then in the 2021 case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. Aug. 17, 2021), the Pennsylvania Supreme Court again answered questions on issues surrounding inter-policy stacking and the household exclusion.

After finding that the stacking waiver form at issue in this case was invalid as applied to inter-policy stacking claims, the Pennsylvania 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 Casualty, 895 A.2d 530 (Pa. 2006).

The court in Donovan also reiterated its previous decision in Gallagher v. GEICO and again ruled that the household exclusion provision is invalid since it acted as a de facto waiver of stacking, when Pennsylvania law requires the carrier to secure a written waiver of stacked coverage to be secured from an insured.



2.  Spencer v. Johnson (The Fair Share Act)

The Fair Share Act was passed ten years ago in 2011 and changed the law of Pennsylvania to hold that each Defendant should only have to pay its own percentage of responsibility for causing an injury (unless a Defendant is found to be 60% or more responsible, in which case that Defendant could be made to pay the entire verdict).

For the last decade, there has not been any significant dispute or litigation over the application of that Act.

Then comes along the decision in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), in which the Pennsylvania Superior Court raised the question of whether the Fair Share Act applies to those cases where there is an innocent Plaintiff who bears no percentage of responsibility for the happening of the accident.

Here is a LINK to the Tort Talk post on this case.

Here is a LINK to my Pennsylvania Law Weekly article on this case.

The question has become whether, under the wording of the Fair Share Act, should an innocent Plaintiff be allowed to argue that the Fair Share Act does not apply such that he or she should therefore be able to recover the entire verdict against any Defendant, even if that Defendant is found to only be 1% responsible.

The analysis of this question in Spencer v. Johnson appears to be dicta and the result of an Advisory Opinion (only 2 of 3 Superior Court Judges on the panel participated in the decision) and, as such, this important question appears to remain to be finally answered by another appellate court.  But the tone has been set.



1.  The Continuing Impact of the COVID-19 Pandemic on the court system and practice of law

While the hope in 2021 was that the COVID-19 Pandemic would wane, it unfortunately did not. As such, Zoom depositions and court arguments remained the norm and trials proceeded under social distancing safety protocols.

Court officials at all levels have begun to talk about amending the various Rules of Court to address the ongoing use of Advanced Communication Technology (ACT) going forward and even after the Pandemic ends.







Trends to Watch in 2022:

-Continuing use of Advanced Communication Technology to keep civil litigation matters moving forward.

-Continuing disputes over the application of the Fair Share Act in cases where there is an innocent Plaintiff (i.e., a guest passenger plaintiff, a plaintiff hit in a crosswalk, a plaintiff under anesthesia).

-Continuing split of authority over whether outrageous factual allegations are required to state a claim of recklessness in a personal injury Complaint.

-Continuing use of alternative dispute resolution services to resolve matters outside of the courtroom, including by way of Zoom Arbitrations and Zoom Mediations.

Bring Your Case To A Close in 2022

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dancummins@CumminsLaw.net