Friday, September 30, 2022

CUMMINS MEDIATION Tip for a Successful Mediation

 

Consider providing the Mediator with a copy of the transcript of the deposition of the Plaintiff.  That usually serves to provide the Mediator with a good overview of the case presented with all its pros and cons on the claims presented.



Please consider scheduling your Mediation today:

570-319-5899

DanCummins@CumminsLaw.net


Bring Your Case to a Close With Cummins Mediation

Section 1983 Civil Rights Claims Arising Out of a Police Chase Case Allowed to Proceed


In the case of Donahue v. Borough of Collingdale, No. 22-1695 (E.D. Pa. Aug. 19, 2022 Baylson, J.), the District Court denied Defendants’ Motion to Dismiss in a civil rights claim against police officers who engage in a high speed chase that resulted in a fatal collision.  The Plaintiffs also sued the municipality.

The court ruled that, while the Plaintiffs had a heavy burden of proof, the allegations in their Complaint were sufficient to allege a cause of action under a state-created danger theory and other theories of liability.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 16, 2022).

Summary Judgment Granted In Favor of Police Officer on Civil Rights Excessive Force and Battery Claims


In the case of Fuller v. Narkin, No. 2:16-CV-00995-GAM (E.D. Pa. Aug. 11, 2022 McHugh, J.), the court dismissed the Plaintiff’s excessive force claims arising from a policy shooting incident.

According to the Opinion, the suspect had led the police on a high-speed chase and, when cornered by the police officers, the suspect attempted to drive at the officer who then discharged his weapon.

The Defendant police officer moved for summary judgment on the excessive force and battery claims filed against him by the Plaintiff. The court granted the motion. 

The court ruled that the police officer correctly interpreted the suspect’s actions as a threat to potentially run the police officer in a further attempt to evade capture. According to the record, the suspect himself even admitted that he was attempting to continue driving his tractor trailer when the police officer discharged his weapon.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 8, 2022).

Thursday, September 29, 2022

Registration Information For Upcoming Ethics CLE

 


LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, OCTOBER 14, 2022

Noon to 1 p.m.

(1 Ethics CLE)


Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM


Technology Assistance to be provided by


CLE is Free for W-BLLA Members

$35.00 for Non-Members


TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program


To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711


If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Wednesday, September 28, 2022

Claims of Gross Negligence Allowed to Proceed in Tractor Trailer Accident Case

In the case of Dragone v. Pew, No. 2:22-CV-00236-GJP (E.D. Pa. Aug. 15, 2022 Pappert, J.), the court denied a Defendant’s Motion to Dismiss but granted, in part, a Motion to Strike in a case involving a motor vehicle accident in which the Plaintiff asserted claims of gross negligence.   

According to the Opinion, the court found that a claim of gross negligence was adequately pled by the Plaintiff where the Plaintiff alleged that the driver operated an overloaded truck at an excessive speed on a busy Schuylkill Expressway and failed to apply the brakes in time prior to the accident despite observing brake lights ahead.   


The court additionally held that the Plaintiff had alleged sufficient facts to move forward with a punitive damages claim where the Plaintiff alleged that the Defendant driver and his employer knew that their conduct posed a risk of harm to others and consciously disregarded those risks.   


However, the court struck the allegations requesting exemplary damages as those allegations were synonymous with the claims of punitive damages.  The court also struck the claim for attorney’s fees as there was no legal basis for the same.   


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

 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Sept. 8, 2022).   


Monday, September 26, 2022

Upper Level UIM Carrier Entitled to Credit for Liability Limits and First-Level UIM Limits



In the case of State Farm Mut. Auto. Ins. Co. v. Griffiths, No. C.A. 20-202 Erie (W.D. Pa. Aug. 23, 2022 Baxter, J.), the court granted the Plaintiff insurance company’s Motion for Summary Judgment. In this case, the injured party was seeking underinsured motorist benefits after settling with both the third party tortfeasors.

The court found that the non-duplication provision found in the liability policy that covered one of the tortfeasor drivers was unenforceable as against public policy.

The court additionally found that the UIM insurance carrier was entitled to a credit in the full amount of the available policy limits against any UIM benefits to which the injured party might be entitled to pursue under the UIM policies at issue.

In its decision, the court noted that Boyle v. Erie Ins. Co., 656 A.2d 941 (Pa. Super. 1995), governed the amount of the bodily injury credit a UIM carrier was entitled to claim when an injured party settles a liability claim against the tortfeasor.  That decision holds that a UIM carrier is entitled to a credit in the full amount of the liability limits.

The court also noted that a secondary UIM carrier is entitled to a credit of not only the liability limits but also for the full amount of the UIM limits of the primary UIM carrier regardless of the terms of an underlying settlement.

As such, the court found that the UIM insurance company in this matter was entitled to a credit of the third party liability limits and the first level UIM limits.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 8, 2022).

Sunday, September 25, 2022

Federal Court Addresses Types of Changes that Can Be Made on Errata Sheet Relative to Deposition


In the case of In Re Injectafer Products Liability Litigation, No. 19-276 (E.D. Pa. Sept. 15, 2022 Beetlestone, J.), the court addressed the propriety of the completion of deposition errata sheets under Federal Rule of Civil Procedure 30(e).

In reviewing Rule 30(e), the court noted that, only “some reason” is needed to support the use of a deposition errata sheet following the completion of a deposition. As such, one word changes and other short explanations are not considered to be deficient and are allowed.

However, the court found that efforts to add into the deposition by way of an errata sheet material beyond the scope of what the witness actually testified to will be stricken as such information are not clarifications.

The court additionally noted that errata changes that are contradictory to the testimony that was completed, such as changes a “yes” answer to a “no” answer would be stricken.

It was noted by the court that while a deponent may regret certain testimony, even if a statement was made in jest, this is not a sufficient reason to alter or remove that testimony by way of an errata sheet.

Lastly, the court also noted that numerous other types of errata may be permissible as reviewed on a case by case basis. Yet, while testimony may be modified through the use of an errata sheet, the original testimony contained in the deposition transcript is to be preserved as well.

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 James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Thursday, September 22, 2022

Court Addresses Hearsay Within Hearsay Issues

Is that hearsay?

In response to a post-trial motion filed in the case of Huertas v. El Bochimche Restaurante, Oct. Term, No. 02851 (C.P. Phila. Co. 2022 Hill, J.), the court addressed hearsay issues that arose during the course of a premises liability trial.

According to the Opinion, the Plaintiff attended a party at a restaurant where she was allegedly attacked in a bathroom.

The Plaintiff was subsequently seen at an emergency room for a facial fracture and other injuries. The records from that visit indicate that the Plaintiff informed the treating physician that she was “punched in the face while walking down a street.”

The Plaintiff later visited a different hospital, stating there that she was injured in the restaurant.

The Plaintiff eventually brought a lawsuit against the restaurant for negligence.

As the case proceeded to trial, the Plaintiff had filed a Motion In Limine requesting the trial court to exclude any possible statements the Defendant would make regarding other claims the Plaintiff had filed.

As to the statements from the hospital records, the court held that the statements were properly admitted under several exceptions to the hearsay rule. 

First, under Pa.R.E. 803.4, hearsay statements “made for diagnoses or treatment" are allowed. The court found that the Plaintiff’s statements at the hospital clearly fell within this exception.

Also, the court referenced precedent holding that statements made by an opposing party are allowed, which was the case with the statements at issue in this matter.  More specifically, the Defendant was seeking to enter statements by the Plaintiff, who was the party opponent.

The court additionally held that the statement at issue was admissible under the business records exception in Rule 803.6. In this regard, the court found that the statement was made and recorded during a regularly conducted activity by the hospital, was recorded contemporaneously close to the time of the alleged incident, and was maintained during the normal course of business.

On a separate but related issue, the Plaintiff argued that the court erred at trial by denying her request to admit the statement by the Plaintiff at the second hospital visit that she had been injured in the restaurant.  The Plaintiff felt that she should have been allowed to introduce that statement in an effort to rehabilitate her testimony and credibility. However, the court clarified that the Defendant had not impeached the Plaintiff, but rather had offered their evidence as substantive evidence excluded from the rules of hearsay.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 6, 2022).

Wednesday, September 21, 2022

Sniffing Out A New Claim in Dog Bite Cases Based on Rabies Act



In the case of Wolfgang v. Villarreal, No. 2573-CV-2021 (C.P. West. Co. Sept. 7, 2022 Scherer, J.), the court issued an Order denying the Defendants’ Preliminary Objections in a dog bite case in which the Defendants filed a demurrer against the Plaintiff’s claims of negligence per se based upon an alleged violation of the Rabies Prevention and Control in Domestic Animals and wildlife Act (“Rabies Act”).

In so ruling, the court reviewed the law supporting claims of negligence per se and found that, since the Rabies Act is designed to protect a specific group of people, that being persons who may encounter domestic animals that could be infected with rabies if not properly vaccinated against it by their owners, the Plaintiff's allegations in the Complaint were sufficient to support a claim of negligence per se in this regard.

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


I send thanks to Attorney Thomas Newell of Newell Law for bringing this case to my attention.

Source of image:  Photo by Lum3n on www.pexels.com.

"Psychological Autopsy" Report Related to Inmate Suicide Ruled Discoverable In Case Against Prison



In the case of Williams v. The GEO Group, Inc., No. 396 E.D.A. 2021 (Pa. Super. Aug. 24, 2022 Dubow, J., McLaughlin, J., and King, J.) (Op. by McLaughlin, J.), the court affirmed the trial court’s granting of a Plaintiff’s Motion to Compel discovery of a “psychological autopsy” report that the Defendant prepared after a prison inmate’s suicide.

This case arose out of the Plaintiff's decedent's suicide while an inmate in a private prison owned by the Defendant.    

In discovery, the Defendant had provided the Plaintiff with all requested documentation except a report called a "psychological autopsy."  The Defendant claimed that the document was protected as being privileged as a peer review document, as a work product document, and due to the attorney-client privilege.

The court found that this report was not privileged under the Peer Review Act.

The court additionally found that the report was not privileged under the scope of Pa. R.C.P. 4003.5 and was relevant under Pa. R.C.P. 4003.1.  As such, the appellate court affirmed the trial court's granting of a motion to compel the production of the report at issue.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 15, 2022).

Source of image:  Photo by Rodnae Productions on www.pexels.com.

Tuesday, September 20, 2022

Details To Register For Upcoming Ethics CLE


LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, OCTOBER 14, 2022

Noon to 1 p.m.

(1 Ethics CLE)


Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM


Technology Assistance to be provided by


CLE is Free for W-BLLA Members

$35.00 for Non-Members


TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program


To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711


If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Monday, September 19, 2022

Pennsylvania Superior Court Again Finds Regular Use Exclusion to Be Unenforceable

In the case of Jones v. Erie Insurance Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022 Stabile, J., Murray, J., and McLaughlin, J.) (Op. by Murray, J.), the Pennsylvania Superior Court reversed a trial court’s decision entering judgment on the pleadings in favor of the carrier based upon the carrier’s argument that the Plaintiff’s UIM claims were barred by the regular use exclusion. The Superior Court reversed, found the regular use exclusion to be unenforceable, and remanded the case for further proceedings.

In its decision, the Pennsylvania Superior Court determined that the carrier’s regular use exclusion violated the Pennsylvania Motor Vehicle Financial Responsibility Law.

In this decision, the Jones’ court cited and relied upon the Pennsylvania Superior Court’s previous decision in the case of Rush v. Erie Insurance Exchange, in which the regular use exclusion was also found to be unenforceable.

Note that the Rush decision is currently pending before the Pennsylvania Supreme Court for a decision. According to an article on that case, oral arguments in the Rush case remain to be scheduled.

Please click HERE to view Tort Talk Blog posts referencing the Rush decision.

In the Jones case, the Pennsylvania Superior Court again agreed with the Plaintiffs’ argument that the regular use exclusion was unenforceable in light of the Rush decision.

In this Jones case, the Plaintiff sought UIM coverage under his own personal automobile insurance policy for injuries he sustained in an accident that occurred while driving his employer’s vehicle. When the carrier denied the claim, the Plaintiff filed a Complaint asserting that the Plaintiff had breached its contract. It was noted that, at the time of the trial court’s Opinion, the Superior Court had not yet issued its Rush decision.

After the trial court ruled in the Jones case, the Plaintiffs appealed the decision but the matter was stayed in anticipation of the Superior Court’s decision in the Rush case.

In the end, the Pennsylvania Superior Court in the Jones case remanded that matter back to the trial court for further proceedings.

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


Source: “Article – “Regular Use Exclusion in Auto Policies is Unenforceable, Pa. Appeals Court Says,” by Aleeza Ferman. Pennsylvania Law Weekly (Sept. 8, 2022).

SAVE THE DATE: Encore Presentation of Lessons From The Godfather CLE (Live and Zoom) Set for October 14, 2022 at Noon

Please consider marking your calendars to attend the upcoming encore presentation of the "Lessons from The Godfather" CLE, which is set for October 14, 2022 at noon in the President's Room of the Law Library in the Luzerne County Courthouse.

The presentation, which is being presented by the Wilkes-Barre Law & Library Association, will be both live and via Zoom at the same time.

Details to follow on how to register.

This year marks the 50th anniversary of the release of The Godfather.  This seminar takes famous quotes from the movies that make up The Godfather trilogy and applies them to the practice of law as practical tips.


Source of image:  Photo by Pavel Danilyuk on www.pexels.com.




Friday, September 16, 2022

Federal Middle District Court Reviews Issues of Intra-Policy and Inter-Policy Stacking


In the case of Metropolitan Group Prop. and Cas. Ins. Co. v. McGinnis, No. 1:19-CV-00927 (M.D. Pa. Aug. 22, 2022 Wilson, J.), the court denied the Plaintiff’s Motion to Dismiss the Defendant’s class action Counterclaim.

According to the Opinion, this matter involved a dispute between the parties over UIM stacking issues.

The Plaintiff is involved in a motor vehicle accident after which he secured the tortfeasor’s liability limits and the limits of a UIM policy that he had purchased. However, the Plaintiff alleged those sums were insufficient to fully compensate him for his injuries.

As such, the Plaintiff then made a claim for additional UIM coverage through two (2) more UIM policies that were issued to his parents, with whom the Plaintiff lived at the time of the incident.

The injured party alleged that, although the insured under the policies at issue had signed a rejection of stacked limits of UIM coverage, the injured party asserted that that document only served to waive intra-policy stacking of UIM benefits, but still allowed for inter-policy stacking of UIM benefits.

The UIM carrier asserted that it had properly denied the injured party’s claim for UIM benefits under the parents’ policy. The UIM carrier filed a Complaint seeking a declaratory judgment that it was not liable on the injured party’s UIM claim.

The injured party filed an Answer along with a class action counterclaim seeking a declaration and compensatory relief on behalf of two (2) subclasses of persons who were injured in a motor vehicle accident as a result of the negligence of an uninsured or an underinsured motorist and who were the named insured or a resident relative insured under an automobile insurance policy issued by the carrier where the carrier had denied a claim by reason of a household exclusion and/or a owned, insured exclusion under the policy.

The issue came before the court by way of a Motion to Dismiss the class action counterclaim filed by the UIM carrier. As noted, the court denied the Motion to Dismiss.

In the court’s decision in this McGinnis case, it was noted that the decision had been stayed pending the issuance of a decision in the case of Donovan v. State Farm Mut. Auto. Ins. The Donovan decision issued by the Pennsylvania Supreme Court can be found at 256 A.3d 1145 (Pa. 2021) or by way of a link contained in a Tort Talk blog post found HERE.

The court in this McGinnis case noted that the UIM carrier was proceeding, in part, with an argument that the injured party should be precluded from proceeding on a class action claim based on the household exclusion issue. The UIM carrier additionally argued that the injured party was precluded from recovery under the “regular use” exclusion contained in the policy.

The injured party countered with an argument that the UIM carrier should have paid his claim for UIM benefits under his parents’ policy because both Pennsylvania and Third Circuit case law have invalidated the household exclusion. The injured party additionally argued that the policy did not contain a regular use exclusion.

The court here ultimately framed the issue as being whether the injured party could stack his coverage under his own policy with the coverage provided under his parents’ policies.

The court in this McGinnis case went on to note that the parties in this matter agreed that the parents had executed a stacking waiver consistent with the language of 75 Pa. C.S.A. §1738(d). The court also noted that the Pennsylvania Courts have stated that the stacking waiver only serves to waive intra-policy stacking, but not inter-policy stacking, because there was more than one (1) vehicle covered by the parents’ policy.

Accordingly, the court found that, under Pennsylvania law, the injured party was presumed to be eligible for inter-policy stacking, absent some applicable exclusion.

After reviewing the language of the parents’ policy, the court in this case noted that the carrier conceded that it would not deny coverage on the basis of the household exclusion because that exclusion was viewed as having been invalidated under the Donovan case.

With regard to the argument raised by the carrier relative to a “regular use” exclusion, the court found that this argument had been waived by the carrier for failing to raise it in its original Brief. As such, the court denied the Motion to Dismiss the class action counterclaim in this regard without prejudice to the carrier’s right to renew its “regular use” exclusion argument at the summary judgment stage.

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

I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Wednesday, September 14, 2022

Pennsylvania Superior Court Starts Pilot Program of Fully Remote Arguments

The Pennsylvania Superior Court is conducting a trial of fully remote Oral Arguments in this upcoming December as a test to determine the possible continued use of fully remote arguments in the future.  

To ensure public access, the Court has set up the arguments to be streamed live on YouTube.com.

To present remote argument, counsel must execute and return a Motion for Leave to Appear Remotely at Argument.  See below for a Form for that Motion as created by the Superior Court.  The granting of the requests for remote Arguments are on a first come, first served basis.  It appears that there are 30 openings for remote Arguments for the December pilot program.

Here is a LINK to the Pennsylvania Superior Court's information page on this pilot program.  On that page you will find further links to the following:

-The Superior Court's Remote Argument Introduction Letter

-The Form Motion for Leave to Appear Remotely at Argument

-Superior Court Remote Argument Procedure page

-Amended Protocols for In-Person Arguments


Source:  Article: "Superior Court of Pennsylvania to Pilot Fully Remote Arguments," Pennsylvania Bar News. (Sept. 12, 2022).




Court Addresses Proper Substitution of Party's Name for John Doe Designation


In the case of Woelfel v. Universal Linx Serv. Inc., No. 2021-CV-1131 (C.P. Leh. Co. June 3, 2022 Caffrey, J.), the court found that the Plaintiff did not meet the requirements of Pa. R.C.P. 2005(c) relative to her efforts to replace a John Doe designation in her Complaint with the Defendant’s actual name. 

This matter arose out of a motor vehicle accident during which the Plaintiff’s vehicle was rear-ended by a vehicle driven by an unknown individual but which vehicle was owned by the Defendant Universal Linx Services, Inc. The Plaintiff had alleged that the driver was an employee of that company.

In an effort to identify the John Doe Defendant, the Plaintiff served Universal Linx with certain discovery requests and Universal identified the driver. 

However, the Plaintiff did not seek leave to amend her Complaint to identify the driver until about six (6) months later. In addition to finding other errors with the Plaintiff’s Motion, the court noted that Pa. R.C.P. 2005(c) requires a party to file a Motion within twenty (20) days of learning the name of a John Doe Defendant within which to request leave to amend the pleading.

Given that the Plaintiff had failed to satisfy the requirements for moving to amend the Complaint to replace the John Doe designation with the name of the individual involved, the court denied the Plaintiff’s Motion.

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

Here is a LINK to the previous Tort Talk post on the actual "John Doe" Rule of Civil Procedure if you wish to review the same.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Monday, September 12, 2022

Lawsuit Filed in Lackawanna County Sent to Blair County Under Doctrine of Forum Non Conveniens


In the case of Shaver v. Levelle, No. 21-CV-2465 (C.P. Lacka. Co. Aug. 22, 2022 Nealon, J.), the court addressed forum non conveniens issues in a motor vehicle accident case.

According to the Opinion, a recently relocated Lackawanna County resident sued a Centre County Defendant and his Huntingdon County and Centre County employers as a result of a motor vehicle accident that occurred in Blair County. 

The Plaintiff sought to recover compensatory and punitive damages for the alleged negligent and reckless acts of the Defendants that resulted in the accident and against the employers for hiring and supervising the motorist and entrusting a tractor trailer to the Defendant driver.

The Defendants provided affidavits from the motorists, his employer, and the investigating officer indicating that Lackawanna County was an oppressive forum that caused great hardship and extreme inconvenience for them due to the significant distance and its adverse impact on their personal and professional responsibilities. The Defendants filed these affidavits in support of a motion pursuant to Pa. R.C.P. 1006(d)(1) seeking to transfer venue of this Lackawanna County case to the Blair County Court of Common Pleas on forum non conveniens grounds.

After reviewing a copy of the record before the court, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that record contains sufficient evidence to confirm that the continued litigation of this case in Lackawanna County would be unduly burdensome for the motorists, his employers, and the anticipated witnesses. The court also found that the record established that the litigation of this case in Lackawanna County would significantly disrupt their professional and personal obligations in their counties of residence.

Judge Nealon also noted that Blair County will provide easier access to material witnesses and other sources of proof relative to the liability and punitive damages issues, including a likely site inspection of the scene of the accident.

Therefore, based upon the totality of the circumstances, the court found that Lackawanna County is indeed an oppressive forum for the adjudication for this particular matter. Accordingly, the Motion to Transfer was granted, sending the case to the Court of Common Pleas of Blair County.

The court additionally ruled that, pursuant to Pa. R.C.P. 1006(d)(3), any cost or fees associated with the transfer of the record shall be paid by the Defendants.

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



Dram Shop Act Found to Pre-Empt Common Law Negligence Claims Against Liquor Licensees Unless Unless Service to Visibily Intoxicated Person Proven


In the case of Murray v. Frick, No. 2021-CV-1254 (C.P. Leh. Co. May 2, 2022 Caffrey, J.), the court reasoned that, given the prior precedent defining §4-497 of the Pennsylvania Dram Shop Act as a limiting provision that protects a licensee from liability to third party unless the patron was visibly intoxicated, the court found that the provision operated to preempt common law negligence claims asserted by the Plaintiff against the Defendant liquor licensee. As such, the court sustained the Defendant’s Preliminary Objections in part.
According to the Opinion, the Plaintiff alleges that he was injured in a motor vehicle accident that occurred when his vehicle was struck by a tortfeasor Defendant who ran a red light. The Plaintiff asserted that, prior to the accident, the tortfeasor Defendant driver had been drinking alcohol at two (2) different bars. As such, the Plaintiff asserted common law negligence claims against the owners of the bars.

The Defendants filed Preliminary Objections asserting that the allegations in the Plaintiff’s Complaint seeking to hold the Defendant liquor licensees as liable in common law negligence were legally insufficient as a matter of law. The Defendant company relied upon §4-497 of the Pennsylvania Liquor Code, that is, the Dram Shop Act, to assert that a claim against a licensee under the Dram Shop Act is the exclusive remedy available to a person who has been injured as a result of the sale of alcohol to a visibly intoxicated person.

The court in this matter found no appellate guidance on the issue of whether §4-497 preempts a common law negligence claim and noted a split of authority among the Courts of Common Pleas on the same. 

However, in reviewing the Pennsylvania Superior Court case of Detweiler v. Brumbaugh, in which that court described §4-497 as a liability limiting provision, this court reasoned that the provision should be construed as protecting a licensee from liability to third parties unless the patron at issue was served while visibly intoxicated.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Source of image:  Photo by Tembela Bohle on www.pexels.com.

 

Friday, September 9, 2022

Patient Safety Reports Ruled Admissible in Medical Malpractice Case

In the case of Lahr v. Young, No. 2021-C-0010 (C.P. Lehigh Co. June 17, 2022 Caffrey, J.), the Court ruled that Defendants failed to demonstrate the certain patient safety reports generated by the medical providers while Plaintiff was in hospital to give birth were immune from discovery in this medical malpractice suit under either the Peer Review Protection Act or the privilege afforded by the Medical Care Availability and Reduction Error Act. The court granted Plaintiff’s Motion to Compel.

Anyone wishing to review this decision, may click this LINK


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Source of images: www.pexels.com.

Thursday, September 8, 2022

Federal Court Addresses Potiential Liability of Drug Manufacturer in Products Liability Case


In the case of DiCair v. Gilead Sci., Inc., No. 21-CV-5486 (E.D. Pa. July 12, 2022 Schiller, J.), the court ruled that negligent failure-to-warn and strict liability product claims against a pharmaceutical manufacturer were barred as a matter of Pennsylvania law.  As such, a Defendants’ Motion to Dismiss was granted in part and denied in part.

According to the Opinion, the Defendant designed and manufactured a prescription medication sold under the trade name of Harvoni which was used to treat Hepatitis C. 

The Plaintiff’s decedent was prescribed the medication and, after taking the medication, was diagnosed with a form of liver cancer. The Plaintiff’s decedent passed away thereafter.

The Plaintiff filed this lawsuit alleging a failure to warn and design and manufacturing defect claims under both negligence and strict liability. The Plaintiffs claimed that the decedent’s development of cancer was caused by his use of the medication.

The court dismissed the negligent failure-to-warn claim, noting that it was well-settled Pennsylvania law that pharmaceutical companies do not owe a duty to warn the public. Rather, manufacturers of medications are only required to warn prescribing doctors of the risk of the medications.  The court cited to the learned intermediary doctrine which holds that drug manufacturers are only required to direct required drug safety warnings to physicians who, in turn, are required to relay the same to patients.

However, the court declined to dismiss the Plaintiff’s negligent design and manufacturing defect theories, finding that the Plaintiff had asserted a valid cause of action that the Defendants had allegedly negligently designed and manufactured the medication.

Lastly, the court did dismiss the Plaintiff’s strict liability claims after holding that strict liability claims against prescription drug manufacturers were barred by Pennsylvania products liability law.

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. 12, 2022).

Source of image:  Photo by Anna Shvets on www.pexels.com.

Wednesday, September 7, 2022

Delay Damages To Be Calculated on UIM Award After Award Is Molded Down To Policy Limits


In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Aug. 19, 2022 Nealon, J.), the court addressed issues regarding the molding of a jury verdict to the amount of the UIM carrier’s policy limits and how to handle a claim for delay damages based upon the verdict in this context.

According to the Opinion, there were two (2) separate jury trials in this matter given issues that were raised following the first trial.

After the juries in the separate UIM benefits trial awarded the Plaintiff $75,000.00 in economic damages and $175,000.00 in non-economic damages, for an aggregate gross award of $250,000.00, the combined verdicts were reduced to a net UIM award of $150,000.00 after the application of a credit for the tortfeasor’s liability insurance coverage limits of $100,000.00.

Thereafter, the UIM Defendant filed a Post-Trial Motion pursuant to Pa. R.C.P. 227.1(a)(4) seeking to mold the $150,000.00 net award further downward to the amount of the UIM coverage available of $100,000.00.

At the same time, the Plaintiff filed her own Post-Trial Motion requesting an award of delay damages under Pa. R.C.P. 238 based upon the higher net award of $150,000.00.
Judge Terrence R. Nealon
Lackawanna County


Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed Pennsylvania precedent and confirm that, absent bad faith liability on the part of the UIM carrier, the law of Pennsylvania limits the maximum legally recoverable damages in a UIM trial to the UIM policy limits set forth in the insurance contract and requires that an award that is in excess of those policy limits be molded down to the amount of the UIM policy limits. 

 As such, the court agreed to grant the JUIM carrier’s Motion to Modify the Net UIM Verdict of $150,000.00 down to the UIM policy limit of $100,000.00.

Relative to the claim for delay damages presented by the Plaintiff, the carrier initially asserted that delay damages are not recoverable in connection with a UIM benefits claim.

Judge Nealon disagreed and noted that, although arbitrators in a UIM Arbitration proceeding do not have the authority to award delay damages under Rule 238 unless the insurance contract grants the arbitrators that authority, the parties in this case chose to litigate the UIM claim in a civil action in the Court of Common Pleas, thereby rendering Pa. R.C.P. 238 applicable to the matter.

Judge Nealon further held that, since the UIM carrier did not make a written settlement offer and did not establish that the Plaintiff caused any delay of the trial, the Plaintiff’s Motion for Delay Damages was granted. 

However, the court noted that the delay damages would be calculated upon her legally recoverable damages of the $100,000.00 UIM policy limits, rather than the net award of $150,000.00.

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

Source of image:  Photo by Olia Danilevich on www.pexels.com.

Tuesday, September 6, 2022

CUMMINS MEDIATION Tip For Successful Mediation

 

It pays for Plaintiff's attorneys to make sure that the economic damages portion of the claims are fully prepared for the Mediation as those damages serve to increase the value of the claim.

Make sure the wage loss claims, recoverable medical expenses claims, and lien information is all specified, documented, and provided to the opposing counsel and carrier well in advance of the Mediation.

Also, if there is a lienholder involved, consider inviting them to attend the mediation.



Please consider scheduling your Mediation today:

570-319-5899

DanCummins@CumminsLaw.net


Bring Your Case to a Close With Cummins Mediation

Court Finds That Plaintiff's Claims Are Barred By Open and Obvious Doctrine

A U-Boat


In the case of Doundas v. Redner’s Market, Inc., No. 2020-CV-1747 (C.P. Leh. Co. May 9, 2022 Pavlack, J.), the court entered summary judgment in favor of a Defendant supermarket after finding the Defendant was not liable for the alleged personal injuries suffered by a Plaintiff while a business invitee in the Defendant’s store given that the condition involved was allegedly open and obvious and would be recognized by a reasonable person in the position of the Plaintiff, exercising normal perception, intelligence and judgment.

According to the Opinion, while the Plaintiff was in the Defendant supermarket, there was a “u-boat,” that is, a cart used to stock shelves, positioned in close proximity to the refrigerators in the dairy aisle.

According to the Plaintiff, when she took a step to get between the u-boat and the refrigerator door to get an item, her foot got caught under the u-boat, causing her to fall to the ground.

The Plaintiff filed a Complaint alleging that the store was negligent and caused the Plaintiff to fall and be injured. The Plaintiff alleged that the store created an unreasonable risk of harm when the store employee positioned a u-boat in a dangerous manner because the position of the u-boat allegedly funneled patrons, including the Plaintiff, towards and against the refrigerators and that caused her foot to go underneath the u-boat, which allegedly led to her fall.

The defense filed a Motion for Summary Judgment arguing that the condition was open and obvious and that, therefore, the store did not owe the Plaintiff any duty in this regard as a matter of law.

According to the Opinion, the record more specifically revealed that the Plaintiff attempted on multiple times to retrieve yogurt out of the refrigerator but that the door would only partially open because of the position of the u-boat. As such, the court concluded from the record that the Plaintiff was aware of, and understood, the position of the u-boat. The record also confirmed that the Plaintiff admitted that she had noticed the u-boat from the time she began walking down the dairy aisle and walked up to it.

The court found from the evidence that the u-boat and its position was therefore known and obvious to the Plaintiff. The court additionally found that any risk related to the u-boat or its position would be apparent to a reasonable person because a reasonable person would understand that a temporary cart could pose a risk if a person walks so close to the cart that she came into contact with it.

As such, the Defendant’s Motion for Summary Judgment was granted under the doctrine of an open and obvious condition.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Friday, September 2, 2022

Defendant Township Found Not to Be a Joint Tortfeasor With Co-Defendant Given Township's Immunity from Suit



In the case of Owens v. Huffman, No. 10612 of 2021, C.A. (C.P. Lawr. Co. July 8, 2022 Motto, P.J.), the court ruled that a Defendant Township was not a joint tortfeasor with its Co-Defendants in this lawsuit involving alleged property damages related to septic system issues.

The Court ruled that the Township was not a joint tortfeasor with the Co-Defendants due to the Township’s standing as a governmental agency and concomitant immunity.

As such, the court ruled that the Co-Defendants could not recover on or pursue a claim of indemnity or contribution from the Township. In light of this ruling, the courts sustained a Defendant Townships Preliminary Objections in this case involving damages claims arising out of issues with a septic system on the property involved.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 30, 2022).

Tuesday, August 30, 2022

Third Party Release Held to Bar Companion UIM Claim

In the case of Richards v. Nationwide Prop. & Cas. Ins. Co., No. 289 of 2019, G.D. (C.P. Fay. Co. Feb. 23, 2022 George, J.), the court granted the Defendant insurance company’s Motion to Dismiss a Plaintiff’s UIM claims on the basis that the Plaintiff had signed a Release which discharged the carrier Defendant from all past, present, and future claims arising out of the accident at issue.   

According to the Opinion, the Plaintiff and her husband were in a motor vehicle accident after the Plaintiff’s husband lost control of the vehicle, struck a center divider, and then were struck by another vehicle. 


At the time of the accident, there were two (2) policies issued by Nationwide that existed for the Plaintiff’s household.   The first policy covered the Plaintiff and her husband as well as the car involved in the accident and the second policy covered other household vehicles.   


As the husband was the allegedly at-fault driver in the accident, the Plaintiffs made a third party bodily injury negligence claim against her husband under the first policy, under which the Defendant carrier paid the policy limits.   


The Plaintiff, who then assisted by counsel, signed a Release with respect to that tortfeasor Defendant in terms of the accident.


The Plaintiff then attempted to assert a claim for UIM benefits under the second Nationwide policy, claiming that there was a mutual understanding of the parties that the above noted Release would not affect this request.  


The Defendant carrier denied this claim and argued that the UIM policy did not provide coverage for any motor vehicle furnished for the regular use of the Plaintiff, the Plaintiff’s resident, or the Plaintiff’s relative.  


The Plaintiff then brought suit against the Defendant alleging that the regular use exclusion in the policy conflicted with Pennsylvania’s Motor Vehicle Financial Responsibility Law. 


The Defendant carrier responded by filing a Motion for Summary Judgment in which it was separately also asserted that the Plaintiff had previously settled all claims by executing an unambiguous Release.  


The defense argued that, although the Plaintiff argued that there was a mutual mistake at the time of the signing of the settlement agreement, the court held that Pennsylvania law treats releases as contracts and that the Plaintiff was represented by counsel at the time of the signing of the settlement agreement at which point she indicated that she understood the nature of the contract.  


Based on this analysis the court granted the Defendant’s Motion for Summary Judgment.  The court emphasized that the Plaintiff was admittedly aware of the existence of the additional insurance policies when she signed the Release under which she agreed to settle all claims.


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


Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (July 19, 2022).   


Source of image: Photo by Mikhail Nilov on www.pexels.com.


Monday, August 29, 2022

Spoliation of Surveillance Video in Store Serves to Defeat Store's Motion for Summary Judgment in Slip and Fall Case



In the case of Defrehn v. TJX Co., No. 20-5762 (E.D. Pa. July 26, 2022 Robreno, J.), the court denied summary judgment in a premises liability case. 

The court noted that the record revealed that the Defendant failed to retain surveillance video that could have established notice on the part of the Defendant of the spill upon which the Plaintiff allegedly slipped and fell. As such, the court found that the Plaintiff was entitled to adverse inference that the video was not preserved because it contained evidence that was unfavorable to the Defendant.

The court noted that this adverse inference served to defeat the Defendant’s Motion for Summary Judgment.

The court additionally generally noted that, while footprints through a spill, standing alone, are not sufficient to preclude summary judgment, in this case the Plaintiff testified that she not only saw footprints through the spill but that there was a mop, bucket, and a "Wet Floor" sign in the area prior to the Plaintiff's fall.

As such, the Plaintiff asserted that the Defendant had taken remedial steps, which created an inference of notice.  The court agreed and found that this evidence could lead a reasonable jury to conclude that the Defendant had notice of the condition prior to the Plaintiff's fall and failed to remedy it.  The court found this to be an additional basis upon which to deny the Motion for Summary Judgment.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm in Philadelphia, PA for bringing this case to my attention.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

Federal Court Addresses Discovery of Store Surveillance Videos in Premises Liability Case

In the premises liability case of Dietzel v. Costco Wholesale, No. 22-CV-0035 (E.D. Pa. July 12, 2022 Sitarski, J.), the court ruled that an incident report in a slip and fall matter was not privileged where it was a standard incident form prepared in the ordinary course of business and where there was no evidence that legal counsel ordered the preparation of the report or was involved in its preparation. As such, the Plaintiff’s Motion to Compel Discovery was granted in this regard.

According to the Opinion, the Plaintiff allegedly tripped and fell on a sidewalk as he entered the Defendants’ store.

In this matter, the Plaintiff also moved to compel the Defendant to produce surveillance footage.

The Defendants asserted that the fall was not captured on video because there were no nearby cameras. However, claim notes produced during discovery confirmed instructions to the Defendant to preserve footage from the nearest camera.

During the course of discovery, the Plaintiff requested the surveillance and, when it was refused, filed a Motion to Compel the Defendants to produce any footage from the property or to confirm that they failed to preserve footage as directed.

The court found that the Plaintiff’s request for all security footage from the store to be an overbroad request. Instead, the court ruled that a more reasonable scope would be to allow for footage from thirty (30) minutes before and after the subject incident and/or to require the Defendant to certify that they had no such footage.

In its Opinion, the court also ordered the Defendant to provide more specific Responses to the Plaintiff’s Interrogatories. However, the court denied the Plaintiff’s request for the identity of all employees working anywhere on the property on the date of the incident. The court found no basis for the Plaintiff to need to know the identity of the more than 100 workers who were working at the store on the date of the incident.

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. 12, 2022). 


Thursday, August 25, 2022

The Pennsylvania Supreme Court Approves Amendments to Broaden Medical Malpractice Venue Rules For the Benefit of Plaintiffs


Under an Order dated August 25, 2022, the Pennsylvania Supreme Court approved amendments to the medical malpractice venue rules that govern such lawsuits filed in the state court.  Under the new venue rules, set to go into effect on January 1, 2023, plaintiffs will have more options as to forum shopping in terms of where they can file their medical malpractice lawsuits.

The amendments undo a 20 year old rule.  Under the old rule, plaintiffs were required in medical malpractice cases to sue their medical providers in the counties where the treatment was completed.

Under the new rules, plaintiff's will be allowed to sue providers in any of the counties where the providers regularly do business or have significant contacts.

Here is a LINK to the Court's Per Curiam Order which confirms that the broader venue rules applicable to medical malpractice actions will go into effect on January 1, 2023.

The Civil Rules Committee issued a 14 page Adoption Report in which the history of the venue rule was reviewed along with the arguments for and against the amendment that was approved.  That report can be viewed at this LINK.


Source:  Article by Max Mitchell entitled "Pa. Supreme Court Broadens Pennsylvania's Medical Malpractice Venue Rules."  Pennsylvania Law Weekly (August 25, 2022).