Another Federal District Court Finds that the Regular Use Exclusion is Invalid And Makes a Prediction.....

On the heels of the Western District Court decision in Johnson v. Progressive Adv. Ins. Co. summarized on Friday here on Tort Talk (See that Tort Talk post at this LINK), comes Judge Malachy E. Mannion's decision out of the Federal Middle District Court of Pennsylvania denying a carrier's motion for summary judgment based upon an effort to rely upon a Regular Use Exclusion.  Judge Mannion predicted that, if faced with this same issue, the Pennsylvania Supreme Court would rule in the same fashion.

In the Federal Court case of Evanina v. The First Liberty Ins. Corp., No. 3:20-CV-00751-MEM (M.D. Pa. Feb. 25, 2022 Mannion, J.), the Court denied a carrier’s motion for summary judgment on a Plaintiff’s UIM claim in which the carrier was attempting to rely upon the Regular Use Exclusion.

According to the Opinion, the Plaintiff, who was a home health worker, was in a motor vehicle accident and secured the minimal policy limits available under the tortfeasor’s policy.

At the time of the accident, the Plaintiff was operating a vehicle that was owned by her employer.  That vehicle was insured by Philadelphia Indemnity Insurance Company.

At the time the Plaintiff was also covered under another UIM policy issued by First Liberty Insurance Company, which presumably covered her personal vehicle (the Opinion does not so state or specify).

The Plaintiff settled for the minimal policy liability limits possessed by the tortfeasor.

The Plaintiff then submitted a first-tier UIM claim to Philadelphia Indemnity and a second-tier UIM claim with First Liberty.

The second-tier carrier, First Liberty, denied coverage to the Plaintiff under the Regular Use Exclusion contained in its policy.

Thereafter, the Plaintiff commenced this breach of contract claim against First Liberty.  A motion for summary judgment was eventually filed by First Liberty which resulted in this decision being issued by Judge Mannion.

Judge Malachy E. Mannion
M.D.Pa.

The court confirmed that the issues in this case were being addressed after the previous issuance of the Pennsylvania Superior Court’s decision in Rush v. Erie Ins. Exchange, 256 A.3d 794 (Pa. Super. 2021), in which that court held that regular use exclusions were not enforceable because they run counter to Pennsylvania’s Motor Vehicle Financial Responsibility Law.

In this Federal Court matter, the carrier attempted to argue that the regular use exclusion was still valid even though the Superior Court invalidated it in Rush. The insurance company attempted to cite to the Pennsylvania Supreme Court Opinion in Williams v. Geico Govt. Emp. Ins. Co., 32 A.3d 1195 (Pa. 2011).

Similar to Judge Schwab's decision in Western District Court case of Johnson v. Progressive Adv. Ins. Co., Judge Mannion in this Middle District Court case of Evanina decided not to follow the Williams decision and found that the Williams decision was only a public policy based decision and not statutorily based decision as the more recent Rush decision was relative to the MVFRL.

Judge Mannion noted that the Pennsylvania Supreme Court had not yet addressed the validity of the Regular Use Exclusion in the context of whether that exclusion runs afoul of Pennsylvania's MVFRL.  As such, Judge Mannion stated that he was required to attempt to predict how the Pennsylvania Supreme Court might rule on this issue if faced with this issue.

Judge Mannion reviewed certain recent Pennsylvania Supreme Court decisions such as the Gallagher v. GEICO decision and the Donovan v. State Farm decision in both of which the Pennsylvania Supreme Court had ruled that the household exclusion was invalid and, therefore, unenforceable.  The Court in this Evanina case noted that the household exclusion was "a substantially similar exclusion [as compared] to the regular use exclusion."  See Op. at p. 15 [bracket inserted here].  

As such, Judge Mannion predicted that, "considering the trend of the Pennsylvania Supreme Court in its rulings," if faced with the issue of the validity of the Regular Use Exclusion, the Pennsylvania Supreme Court would find this exclusion to be invalid and, therefore, unenforceable.    See Op. at p. 16. 

Accordingly, Judge Mannion ruled in the same fashion and denied the UIM carrier's motion for summary judgment as a result.

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


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this case to my attention. I note that the Plaintiff's attorneys in this Evanina case were Neil O'Donnell and Gerard Gaughan of the O'Donnell Law Offices in Kingston, PA.

Microorganism Exclusion Found to Preclude Coverage for Business Shut Down by COVID-19 Pandemic Closure Order

 

In the case of Big Red Management Corp. v. Zurich Amer. Ins. Co., No. 2:20-CV-02113-KSM (Jan. 7, 2022 Marston, J.), the court ruled that a restaurant was not entitled to coverage for business losses allegedly caused by COVID-19 governmental closure orders where the insurance policy in question contained a microorganism exclusion.

The court also noted that coverage was properly denied by the carrier in that there had been no evidence of any direct physical damage or loss to the insured’s property. The court additionally held that coverage was properly denied because the governmental closure orders did not completely prohibit access to the restaurant since the restaurant was permitted to continue to offer takeout and delivery services.

As such, the court granted the Defendant’s Motion to Dismiss.

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 (Feb. 3, 2022).

Volunteer Jurors Needed for the March 3 Lackawanna County Mock Trial Competitions (Virtual)

Volunteer jurors are needed for the virtual Mock Trial competitions that are set to take place online on March 3, 2022 at 6 p.m.

You can participate from the comfort of your own home.

If you are able to help out, please contact Katie Nealon, Esq. at knealon@munley.com, or Kaitlin McDonough of the Bar Association at kmcdonough@lackawannabar.org, to sign up.  

THANK YOU!!

Federal Court Follows Rush Decision And Finds Regular Use Exclusion Unenforceable

In the Federal Court case of Johnson v. Progressive Adv. Ins Co., No. 2:21-CV-01916-AJS (E.D. Pa. Feb. 23, 2022 Schwab, J.), the Court denied a carrier’s motion to dismiss a Plaintiff’s UIM claim in which the carrier was attempting to rely upon the Regular Use Exclusion.

According to the Opinion, the Plaintiff was in a motor vehicle accident and secured the minimal policy limits available under the tortfeasor’s policy.

At the time of the accident, the Plaintiff lived with her sister, was a regular user of her sister’s vehicle, and was driving her sister’s vehicle at the time of the accident. The Plaintiff sought UIM coverage under the policy that covered her sister’s vehicle. The Plaintiff asserted that she was a resident relative in relationship to her sister.

The UIM carrier denied coverage to the Plaintiff under the regular use exclusion.

After the issuance of the Pennsylvania Superior Court’s decision in Rush v. Erie Ins. Exchange, 256 A.3d 794 (Pa. Super. 2021), in which that court held that regular use exclusions were not enforceable because they run counter to Pennsylvania’s Motor Vehicle Financial Responsibility Law, the Plaintiff reiterated the request for UIM coverage.

The Defendant carrier denied the UIM claim again and the Plaintiff filed this lawsuit.

In its decision in this Johnson case, the Federal Court noted that the Rush decision had been appealed to the Pennsylvania Supreme Court but that the Pennsylvania Supreme Court had not yet indicated if it would be accepting that appeal for review.

In this Federal Court matter, the carrier attempted to argue that the regular use exclusion was still valid even though the Superior Court invalidated it in Rush. The insurance company attempted to cite to the Pennsylvania Supreme Court Opinion in Williams v. Geico Govt. Emp. Ins. Co., 32 A.3d 1195 (Pa. 2011).

The District Court in Johnson decided not to follow the Williams decision and found that the Williams decision was only a public policy based decision and not statutorily based decision as the more recent Rush decision was relative to the MVFRL.

The Court in Johnson accepted the Plaintiff’s argument that the regular use exclusion runs afoul of Section 1731 of the MVFRL, 75 Pa.C.S.A. Section 1731.  As such, the District Court denied the carrier’s motion to dismiss without prejudice to the carrier’s right to re-raise the matter should the Pennsylvania Supreme Court take up the issue and reverse the Superior Court decision in Rush.

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


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this case to my attention. I also send thanks to Attorney Brad D. Trust of the Pittsburgh office of Edgar Snyder & Associates, LLC for bringing this case to my attention.

Jurors Needed for Semi-Final Round of Virtual Mock Trial Tournament

 

Superior Court Affirms Entry of Judgment Non Pros in Favor of Medical Malpractice Defendants Based Upon Deficient Language in Certificates of Merit

In the non-precedential decision by the Pennsylvania Superior Court in the case of Monger v. Encompass Health Rehab. Hosp. of Reading, LLC, No. 862 M.D.A. 2021 (Pa. Super. Feb. 10, 2022 Olson, J., Kunselman, J., and Pellegrini, J.) (Op. by Olson, J.), the court affirmed a trial court’s denial of a Plaintiff’s Motion to Open Judgments of Non Pros entered in favor of the medical malpractice Defendants which judgments were entered based upon Certificates of Merit that were found to be deficient, in part, with regards to the language that is statutorily required to be contained in such documents.

Anyone wishing to review this non-precedential Opinion may click this LINK.


I send thanks to Attorney Anthony J. Gabriel of the Camphill, PA office of Margolis Edelstein for bringing this decision to my attention.

Judge Williamson of Monroe County Addresses Propriety of Claims in Medical Malpractice Complaint

 

In the medical malpractice case of Hyman v. St. Luke’s Hosp., No. 5565-CV-2021 (C.P. Monroe Co. Dec. 16, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas denied various Preliminary Objections and a Motion to Dismiss filed by the Defendants.

The court held that the Plaintiff’s Complaint which alleged the dates of care, the places that the care was completed, identified several Defendant medical providers by name and also alleged that certain agents of the Defendant hospital and medical group were unknown to Plaintiff but known to Defendant, possessed sufficient specificity to withstand the Defendants’ Preliminary Objections challenging the Complaint.

Judge David J. Williamson
Monroe County

Judge Williamson noted that practical considerations involved with medical malpractice causes of actions weighed against a rigid application of the specificity requirements found under the Pennsylvania Rules of Civil Procedure.

The court additionally held that the Plaintiff’s claim of corporate negligence directed to the Defendant physician group and health network were not subject to a demurrer asserted by the Defendants under Pa. R.C.P. 1028(a)(4).

The Defendants, St. Luke's Physician Group and St. Luke's Health Network, asserted that the corporate negligence claims levied against them failed because the allegations established that the Defendants did not function like a hospital and that these Defendants therefore did not meet the standard for a finding of liability in this respect.

In this regard, the court applied the functional analysis test noted under the cases of Thompson v. Nason, 591 A.2d 703 (Pa. 1991) and Scampone v. Highland Park Care Center, LLC, 570 A.3d 582 (Pa. 2012), and found that the claims asserted by the Plaintiff against these Defendant entities satisfied the types of allegations necessary for a plaintiff to proceed on a corporate negligence claim.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 18, 2022).

Source of image:  Photo by Karolina Grabowska from www.pexels.com.

Late Expert Report and Other Issues Addressed in Medical Malpractice Context

In two separate Opinions addressing different pre-trial motions in limine in the case of Morrissey v. GCMC, Geisinger Community Medical Center, No 3:19-CV-894 (M.D. Pa. Jan. 27, 2022 Mariani, J.), the court denied a Motion In Limine in a medical malpractice case and found, in part, that a Defendant could introduce that a Plaintiff refused a particular medical test relative to the treatment provided.

Judge Mariani noted that, where there was a dispute between the parties over whether the test was offered, that issue was one for a jury to decide. The judge went on to note that, if the jury believed the Defendant’s evidence in this regard, then the refusal of the test by the Plaintiff would be undisputedly relevant.

Judge Robert D. Mariani
Pa. M.D.

The court also found that the fact that the Plaintiff allegedly suffered from cirrhosis of the liver from past alcohol use was also relevant and admissible as to causation issues and damages. However, the Defendant was precluded from characterizing the Plaintiff as an alcoholic without first presenting any evidence that the Plaintiff still engaged in the drinking of alcohol.

The court also ruled that the Defendant’s late expert report would not be excluded, Judge Mariani stated that the exclusion of critical evidence is an extreme sanction that it is not to be imposed except for the proponent’s willful deception or flagrant disregard of a court Scheduling Order. While the Defendant’s report was indeed late, the court found that the report at issue was essentially a rebuttal to the report of the Plaintiff’s expert. The court also noted that any prejudice to the Plaintiff was lessened by the fact that the Plaintiff could take the Defendant’s expert’s deposition prior to trial.

Anyone wishing to review a copy of these two decisions may click this LINK and this LINK


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

Commonwealth Court Rules, In Case First Impression, That a Private Sector Defendant Can Rely Upon Venue Statutory Argument Typically Reserved to PENNDOT

In the case of first impression of Kim v. Com. of Pa., Dept. of Transp., No. 7 CD 2020 (Pa. Cmwlth. Feb. 9, 2022 Wojcik, J., Cannon, J., and Ceisler, J.) (Op. by Wojcik, J.), the Commonwealth Court held that private sector Defendants in a personal injury suit may seek a new venue under a section of the Sovereign Immunity Act despite the State Agency Co-Defendant’s objections to the requested transfer of venue.

According to the Opinion, the Plaintiffs were injured in a single car accident that occurred in Delaware County. 

In addition to suing PennDOT, which maintained the area of the road in question, the Plaintiff also sued private contractors who worked on the construction of the road as well as the Delaware County resident who owned the property where the accident occurred. The Plaintiffs filed suit in Philadelphia.

According to the Opinion, the Pennsylvania Department of Transportation, as a Defendant in this case, had earlier waived its right to venue protections under the law as part of that Defendant’s settlement with the Plaintiffs. 

 As a result of that agreement, PennDOT even joined the Plaintiffs in arguing against the venue Preliminary Objections filed by the Defendants and asserted that the private sector Defendants could not utilize §8523(a) of the Judicial Code in support of their argument.

According to the Opinion, §8523(a) of the Judicial Code establishes that state entities may only be sued in the county where either the incident at issue occurred or where that state agency entity is located.

The issue in this case was whether, in a suit against both state and private Defendants, the right to object to venue under that section only rested with the state entity.

In a decision of first impression, the Commonwealth Court ruled that, under the facts and circumstances of this case, a private sector Defendant could also rely upon §8523(a) of the Judicial Code to challenge the venue issue as well.

The court rejected the argument by the Plaintiffs and PennDOT that, under the Pennsylvania Rules of Civil Procedure 1006, which governs non-state venue objections, the private Defendants could not raise objections to venue. It was otherwise indicated in the Opinion that one of the Defendants later joined in the suit conducted business within Philadelphia County.

The Commonwealth Court noted that, although the private Defendants could not have raised objections to venue under Rule 1006, the court found that they could still raise objections under §8523(a).  The Commonwealth Court emphasized that there was no language under Section 8523(a) that placed any limitations as to which party could raise such venue arguments.

The court remanded the case back to the trial court where the private Defendants would be permitted to argue for a change in venue.

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


Source: Article-“Appeals Court: Private-Sector Co-Defendants May Seek Venue Change Under State Protection Provision.” Pennsylvania Law Weekly (Feb. 10, 2022).

Source of Image:  Photo by Trev Adams from www.Pexels.com.

Judge Hughes of Luzerne County Strikes Claims of Recklessness at Preliminary Objections Stage

In the companion cases of McLane v. Almquist, No. 7057-CV-2021 (C.P. Luz. Co. Jan. 24, 2022 Hughes, III, J.), and Kastreva v. Almquist, No. 7056-CV-2021 (C.P. Luz. Co. Jan. 24, 2022 Hughes, III, J.), Judge Richard M. Hughes, III of the Luzerne County Court of Common Pleas sustained Preliminary Objections seeking to strike all references to recklessness and reckless conduct, along with a claim for punitive damages, in a motor vehicle accident case.

The court found that these types of allegations lacked conformity to the Rules of Civil Procedure and/or Pennsylvania law and/or were legally insufficient, in part, under Pa. R.C.P. 1019.

As such, the court ruled that all allegations of “recklessness” and the Plaintiff’s request for punitive damages directed against the corporate Defendant were stricken from the Plaintiff without prejudice for leave to amend at a later date should discovery warrant the same.

It is emphasized that the court issued its decision by way of Orders only and without any Opinion. Those Orders can be viewed HERE and HERE.

In so ruling, Judge Hughes followed the rulings of a majority of trial courts from around the Commonwealth as well as several appellate court decisions.  For an overview of the law regarding the proper pleading of recklessness, please click this LINK to access my article on this issue that was published in the January, 2022 edition of the Pennsylvania Bar Quarterly.    

I send thanks to Attorney Lisa Goodison Faden of the Philadelphia office of Ryan, Brown, Berger & Gibbons, P.C. for bringing these recent Luzerne County decisions by Judge Hughes to my attention.

Summary Judgment Granted With Respect to Claims of Recklessness

Although the judges in the Court of Common Pleas of Lackawanna County have followed the minority line of trial court decisions that have gone against appellate precedent in overruling Preliminary Objections with respect to claims of recklessness in personal injury Complaints, as the recent decision in the case of Lentes v. Hayden, No. 17-CV-3947 (C.P. Lacka. Co. Feb. 16, 2022 Nealon, J.), proves, the judges of the Lackawanna County Court of Common Pleas are willing to grant summary judgment on claims of recklessness once discovery has been completed and it has been confirmed that the discovered facts of the case do not support a claim of recklessness.

According to the Opinion in Lentes, this personal injury action arose out of a motor vehicle accident. The facts indicate that the accident occurred as the Plaintiff was making a left hand turn into his driveway and was involved in a collision with an oncoming vehicle that was operated by the Defendant.

The Plaintiff alleged that the impact occurred after he had exited the roadway and had entered his driveway. The Defendant maintained that the initial impact took place in the roadway when the Plaintiff suddenly and negligently turned left in front of the Defendant’s vehicle without yielding the right-of-way to the Defendant.

Other evidence developed during the course of discovery confirmed that the Defendant admitted at his deposition that he was traveling at 50 mph in a posted 45 mph speed zone at the time of the accident.

The Defendant filed a Motion for Summary Judgment seeking the entry of judgment in his favor on a Plaintiff’s claims of recklessness and negligent conduct.

The court allowed the claims asserted by the Plaintiff in negligence to proceed to the jury given the disputed facts and testimonial differences.

Relative to the claims of recklessness, the court found that the record lacked sufficient facts of an outrageous nature so as to support a finding of recklessness on the part of the Defendant. As such, summary judgment was granted with respect to the claims of recklessness but denied in all other respects.

In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas offered a detailed recitation of the law of Pennsylvania on claims of recklessness and the type of evidence necessary to prove the same in order to get beyond a Motion for Summary Judgment and thereby proceed to a jury on such claims.

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

Claims of Recklessness Again Allowed to Stand in Lackawanna County

In the case of Gawrys v. Zaffino, No. 21-CV-4129 (C.P. Lacka. Co. Feb. 11, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas allowed a claim for recklessness and a demand for punitive damages to go beyond Preliminary Objections in a premises liability case.

The court ruled in favor of the Plaintiff relative to the claim of recklessness and for punitive damages after noting that Pa. R.C.P. 1019(b) provides that conditions of mind may be averred generally and that, since a claim of recklessness is a claim regarding a condition of mind, that claim may be pled generally under Rule 1019(b).

The court noted that, since the landlord Defendant had not challenged the factual specificity of the allegations supporting the Plaintiff’s stated cause of action, the Preliminary Objection filed by the Defendant that sought to strike the Plaintiff’s general averments of recklessness and the derivative demand for punitive damages would be overruled by the court based upon Rule 1019.

In addressing this issue, the court made reference to the fact that, “During the past decade or more, disputes have arisen as to whether Plaintiffs who allege recklessness and seek punitive damages must state a certain degree of supporting “material facts” to withstand Preliminary Objections, or instead may generally aver such “conditions of [the] mind” in connection with a request for punitive damages.”  See Op. at p. 6 citing with “see” signal, Daniel E. Cummins “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93 Pa. B.A.Q. 32 (Jan. 2022).

Judge Nealon noted that, while there are differing Opinions from around the Commonwealth of Pennsylvania on this issue, the courts in Lackawanna County have uniformly followed the decision of Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), in overruling Preliminary Objections seeking to strike allegations of wanton, willful, or reckless conduct and to dismiss punitive damages claim based upon the alleged absence of substantiating factual allegations, provided that the Complaint generally avers willfulness, wantonness, or recklessness. [Other citations from Lackawanna County omitted].

Relative to other claims presented, the Plaintiff’s claim for “attorneys’ fees” was stricken due legal insufficiency (it is noted that the Plaintiff agreed to this result in its submissions).

The court otherwise overruled the Defendant’s demurrer to the Plaintiff’s claims for prejudgment interest under Pa. R.C.P. 238 and taxable costs pursuant to 42 Pa. C.S.A. §1726 and Lacka. Co. R.Civ. P. 275.

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

Trial Court Says Appeal Should Be Quashed Because Party Did Not File Post-Trial Motions

In the case of Hernandez v. Grandview Hospital, No. 2018-CV-01736 (Bucks Co. Nov. 15, 2021 Mellon, J.), the court issued a Pa. R.A.P. 1925(a) Opinion in support of its decision granting a nonsuit in a medical malpractice case.

Of note, the trial court ruled that the Plaintiff’s appeal should be quashed because the Plaintiff took an appeal from the nonsuit entered in favor of the Defendant and did not first file any written Post-Trial Motions pursuant to the requirements of Pa. R.C.P. 227.1.  As such, the trial court requested that the appellate court quash this appeal.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Soure of image:  Photo by Gabriel Soto on www.unsplash.com.

An Oldie But Goodie - ARTICLE: Spread a Little Love

 In honor of Valentine's Day, I figured I would re-run the below article of mine that previously appeared in the January 25, 2010 edition of the Pennsylvania Law Weekly(c) 2009 Incisive Media US Properties, LLC (now known as American Law Media) as well as here on Tort Talk:

Spread A Little Love:
Being pleasant and considerate is part of being a professional

By Daniel E.Cummins
Special to the Law Weekly
DanCummins@CumminsLaw.net

The New Year is still in its early stages and, less than one month in, it's not too late to renew those resolutions you may have already broken.

With Valentine's Day approaching, consider the following ways to resolve to spread a little love in and out of your practice in the month of February and beyond:

Express Appreciation to Your Staff
Day in and day out your staff shows up to type your verbose and, at times, pompous-sounding legal dictation, replete with legalese and, at times, even Latin. Did you ever stop and wonder what they ever did in life to deserve the fate of listening to this drivel?

Daily expressions of gratitude towards your staff are warranted, for without them, your office could not function. Throw out a "nice job," "thanks for keeping up with the dictation," or "I appreciate you taking the initiative on that." Always say "please" and "thank you."

Return Phone Calls
It's rude not to return phone calls, even to those we'd rather not deal with. If you owe a return phone call that you are dreading, return it even if it means leaving a voice mail after hours in the hopes of not reaching the recipient. In the alternative, respond in writing if possible. Remember, every communication brings you one step closer to the end of that case and the end of dealing with that frustratingly aggravating attorney or client.

Show Interest in Others
See the person behind your opposing counsel -- and I don't mean their client. Take an interest in them. Ask about their family, their hobbies, their vacations or their life outside of work.

Be complimentary to others. One way is to make it a habit of complimenting other people's neckties where warranted. More often than not the person wearing the tie spent time picking it out and will appreciate it being noticed. It's probably best, however, not to point out the speck of mustard on the tie.

Be Considerate About Technology
Be considerate in communicating with others and ignore your cell phone or Blackberry when conversing. Answering your cell phone or constantly looking at your Blackberry while someone is talking to you is rude and signals that you are not interested in what they have to say. Why should they then have any interest in you or what you have to say?

Whatever is coming through to you on your portable device will still be there when your in-person conversation is over. Improve your interpersonal dealings with others by giving them your undivided attention.

Smile
In Dale Carnegie's classic book "How to Win Friends and Influence People," recommended here as an annual assignment for enjoyment and self-improvement, it is suggested that you greet everyone you contact with a smile. It shows you are friendly, welcomes and relaxes the recipient and opens them up to accepting the information you have to present to them.

Grant Professional Courtesies
Grant professional courtesies to others on a routine basis, as recommended by the Pennsylvania Bar Association's Rules on Professionalism. Remember, what goes around, comes around. Routinely sending out good karma may come back to you two-fold in the future when you most need it.

Show Gratitude to Your Spouse
Show some appreciation to your spouse or significant other for living with the demands of your chosen profession and for putting up with your jealous mistress (or gentleman caller), The Law. Take him or her out to dinner unexpectedly. Stay home on a Saturday. Throw in a little humor -- maybe even show your spouse some deference by beginning requests with, "May it please the spouse."

Think about the total energy, dedication and attention you put into trial preparation. When not bogged down by a trial or a deadline, refocus that energy and dedication on your family and friends. Aren't they just as worthy, if not more so, of that type of attention from you?

Take Care of Yourself
Take pains to make yourself more "lovable" (well -- we're lawyers -- let's try for "likeable") by purposefully getting away from the practice of law, whether it be on vacation or simply "me" time with friends and family. Exercise away the frustrations of the practice of law. Play hooky and take a "mental health" day and do something you enjoy that maybe you haven't done in years. Read good prose for enjoyment's sake. It may even serve to help your own writing abilities.

Efforts to escape and focus on yourself on occasion, along with the other good habits noted above, can only result in easing the stress of this profession, make you a more enjoyable person to be around and may even serve to increase your productivity as an attorney. •

Source of image:  Photo by Rodnae from www.pexels.com.

Daniel E. Cummins is a partner and civil litigator with the Clarks Summit, PA law firm of Cummins Law.  Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.  

Cummins is also available to serve as a Mediator through Cummins Mediation Services (www.cumminsmediationservices.com).

Court Addresses Discovery Issues Including Issues With Plaintiff's Attorney Being a Deponent in the Case

In the case of Butler v. Scranton Manuf. Co., Inc., No. 18-CV-5167 (C.P. Lacka. Co. Jan. 28, 2022 Nealon, J.), the court addressed discovery issues in a case involving an employee who was riding a garbage truck on its rear riding step when that step allegedly snapped and detached from the moving truck and caused the employee to fall and suffer head injuries and other injuries.

This case involves a products liability case against the manufacturers and distributors of the truck and the riding step.

With regards to the discovery dispute at issue before the court in this decision, the Defendant manufacturer subpoenaed several borough employees for depositions and demanded that the witnesses produce documents in conjunction with those depositions.

The manufacturing Defendant contended that the borough manager acted in bad faith by failing to produce the requested records at his deposition.

As such, the manufacturer filed a Motion to Compel a second deposition of the borough manager and also requested sanctions. The manufacturer also sought to depose the borough council president who happened to also be a member of the law firm that represented the Plaintiff in this case.

After a review of the records and applying Pennsylvania law regarding the liberal discovery standards applicable to civil litigation matters, the court ruled that the manufacturer may depose the borough council president regarding his post-accident conversations with the Plaintiff’s father and his knowledge of the borough council’s garbage truck maintenance decisions.   However, the court ruled that, currently, there was no basis for a finding that the borough council president was likely to be a necessary witness concerning the contested issues in the case such that the law firm he worked for would be precluded from representing the Plaintiff.

The court additionally ruled that no other discovery from the borough was warranted under the circumstances and that, as such, the request for sanctions was denied as being devoid or merit.

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

Source of image:  Photo by Jin Yang from www.pexels.com.

Jurors Still Needed For Remote Participation If You Can Help

If you are thinking that the Lackawanna County Mock Trial Competition has had enough attorneys sign up to be jurors, please note that this has not been the case so far.   

The competition has even had to use University of Scranton Mock Trial students to sit in as jurors for which the participants are grateful.

More attorneys are needed as jurors to fill the virtual jury boxes.

Hoping you might be willing to offer up two hours from the comfort of your home to help out with the next round of this Virtual Lackawanna County Mock Trial Competition which is set to take place next Tuesday, February 15th.

Thank you very much and thank you to those who have already signed up! 

Judge Nealon of Lackawanna County Addresses Issues With Zero Verdict For Pain and Suffering Claim

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Jan. 18, 2022 Nealon, J.), the court granted in part and denied in part a Plaintiff’s Motion for Post-Trial Relief in a case involving an uninsured motorist claim against a carrier.

According to the Opinion, the jury in this UIM benefits trial rendered a verdict awarding the Plaintiff $75,000.00 for future medical expenses but $0 for past and future non-economic damages.

The jury entered this verdict even though the defense medical expert testified that the Plaintiff had unresolved injuries to her head, neck, and knee that were casually related to the accident. The court noted that the jury had been instructed, without objection, that it must award at least some damages for those uncontested injuries in this admitted liability case.  Nevertheless, the jury awarded $0 for pain and suffering.

After the verdict was molded to $0 to reflect the stipulated credit for the tortfeasor’s liability insurance coverage of $100,000.00, the Plaintiff filed a post-trial motion seeking a new trial on the issue of non-economic damages on the grounds that the verdict was against the weight of the uncontroverted medical evidence. The Plaintiff additionally requested an award of delay damages based upon the verdict of $75,000.00, that is, on the amount before the verdict was molded to zero.

The Defendant contended that the Plaintiff waived her right to secure a new trial by failing to object at the time the verdict was announced and by failing to request that the jury be sent back to resume its deliberations to correct a $0 verdict. The Defendant also asserted that the Plaintiff was not entitled to a new trial even if she did preserve her weight of the evidence challenge.

The defense additionally asserted that the Plaintiff cannot recover delay damages on a verdict that was molded to $0.

In addressing whether or not the Plaintiff had waived any arguments against the $0 verdict, the court cited, in part, to the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine for the proposition that one option a party has in a case involving a $0 verdict is to request the court to send the jury back out to deliberate further in an effort to avoid any post-trial issues that may be created by the entry of that $0 verdict.  However, as noted below, where a claim is made that a verdict was against the weight of the evidence, it is not required that such a request be made for the issue to be preserved.

The court in this case emphasized that the Plaintiff was asserting that the jury’s award was contrary to the weight of the evidence and shocked one’s sense of justice. The court noted that, where a party has asserted a weight of the evidence challenge, an objection filed of record before the jury is discharged is not required in order to preserve the issue for review during post-trial motions.

The court found that, since a verdict must bear some reasonable relation to the harm suffered as demonstrated by the uncontroverted medical evidence, and given that an award of $0 for past and future non-economic damages was found to be so disproportionate to the uncontested medical evidence so as to the defy common sense and logic, the court granted the Plaintiff’s request for a new trial non-economic damages.

On the issue of delay damages, Judge Nealon ruled that, given that delay damages under Rule 238 are to be calculated based upon a molded verdict, and given that the verdict in this case was molded to $0 following the stipulated offset for the liability insurance coverage limit, the Plaintiff was not entitled to any delay damages under Rule 238 and that, as such, this request was denied.

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

If you wish to read the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine please click HERE.

Source of image: Photo by TBS 44 on www.unsplash.com.

Corrected Link for case of M.M. a Minor v. The County of Carbon Highlighted on Tort Talk Yesterday

 Yesterday's Tort Talk post covered the case of M.M., a Minor v. The County of Carbon, No. 18-CV-2341 (C.P. Carbon Co. Dec. 29, 2021 Nanovic, J.).

Below is the corrrect Link for the decision.  I apologize for any confusion that may have been caused by the faulty Link.

In this decision, Judge Roger N. Nanovic addressed the issue of whether a minor Plaintiff was liable to pay a Department of Human Services/Medicaid lien arising out of a motor vehicle accident case in a matter where the Defendant had obtained a favorable ruling prior to trial on a Motion In Limine to exclude evidence at trial of all medical bills because it appeared that those medical bills were covered by a policy of insurance.

In the Opinion, Judge Nanovic found that the Medicaid payments were not paid under any policy of insurance and that, therefore, the lien must be paid back out of the Plaintiff’s settlement proceeds.

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

Court Rules on Court Approval of Settlement that Minor Plaintiff Must Satisfy Medicaid Lien

In the case of M.M., a Minor v. The County of Carbon, No. 18-CV-2341 (C.P. Carbon Co. Dec. 29, 2021 Nanovic, J.), Judge Roger N. Nanovic addressed the issue of whether a minor Plaintiff was liable to pay a Department of Human Services/Medicaid lien arising out of a motor vehicle accident case in a matter where the Defendant had obtained a favorable ruling prior to trial on a Motion In Limine to exclude evidence at trial of all medical bills because it appeared that those medical bills were covered by a policy of insurance.

According to the Opinion, the case ultimately settled and the Plaintiffs then pursued court approval of the settlement.

In that Petition for Court Approval of the Settlement, the Plaintiff asserted that, given the Motion In Limine result, which confirmed that the Plaintiff allegedly could not introduce the Medicaid payments at trial and recover on the same, the Plaintiff was not liable to pay the Medicaid lien following the court’s approval of the settlement.  The Plaintiff argued that, as such, the Medicaid lien did not have to be considered in terms of the settlement of the case.

In the Opinion, Judge Nanovic disagreed with the Plaintiff’s position and found that the Medicaid payments were not paid under any policy of insurance and that, therefore, the lien must be paid back out of the Plaintiff’s settlement proceeds.

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


I send thanks to Attorney Gerard J. Geiger of the Stroudsburg, PA law firm of Neuman Williams, P.C. for bringing this case to my attention.

Source of image:  Photo by Fabian Blank on www.unsplash.com.

Can You Serve as a Mock Trial Juror This Week? (Virtual)

Pennsylvania Superior Court Addresses Waiver of Psychologist-Patient Privilege Relative to Subpoena For Plaintiff's Mental Health Records [Non-Precedential]

In the case of Boyle v. Mainline Health, Inc., No. 728 EDA 2021 (Pa. Super. Jan. 10, 2022 McCaffery, J., Panella, P.J., DuBow, J.) (Op. by McCaffery, J.) (DuBow, J. dissenting)[Non-Precedential], the Pennsylvania Superior Court reversed a lower court's Order striking the Plaintiff's objections to certain subpoenas the Defendant served in an effort to secure mental health records on the Plaintiff in an alleged birth injury medical malpractice case.

The court found that the psychologist-patient privilege is not waived by a Plaintiff making general allegations of emotional pain and suffering, upset, and mental distress as opposed to making specific claims for specific mental diagnoses.

The Court found that, in order for there to be a waiver of the privilege, allegations of recognized mental conditions such as anxiety, mental injury, severe emotional trauma requiring treatment are required.

The court additionally confirms that the assertion of claim for loss of consortium, in and of itself, does not result in a waiver of the psychiatric privilege.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Dubow can be viewed HERE.

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

Source of image:  Photo by Mark Williams on www.unsplash.com.

Mock Trial Jurors Needed For Round II -- Virtual Competion

 

Plaintiff's Attorney and Firm Disqualified Where Attorney Previously Represented Corporate Defendant in Many Matters

In the case of Darrow v. PPL Electric Utilities Corp., No. 236 MDA 2021 (Pa. Super. Dec. 14, 2021 Panella, P.J., Murray, J. and Stevens, P.J.E.) (Op. by Murray, J.)(Stevens, P.J.E., dissenting), the Pennsylvania Superior Court reversed a trial court’s decision on an issue of whether the Plaintiff’s attorney, who formerly represented the Defendant, PPL, while working as a defense counsel at another law firm, should be precluded, as well as the entire Plaintiff’s firm, from representing the Plaintiff due to the prior representation of the Defendant.

According to the Opinion, the Plaintiff allegedly sustained injuries when the vehicle he was operating collided with a utility pole and then came into contact with a downed powerline.

The Plaintiff retained his attorney and the Plaintiff’s law firm. Thereafter, the Defendant filed a Motion to Disqualify the Plaintiff’s attorney and the Plaintiff’s law firm representing the Plaintiff given that the Plaintiff’s attorney had previously and extensively defended the Defendant, PPL, in numerous matters.  The Defendant, PPL, asserted that the attorney allegedly had intermittent knowledge of the inner workings of the Defendant’s operations and litigation strategy. In essence, the Defendant asserted that there was an impermissible conflict of interest under the Pennsylvania Rules of Professional Conduct that implicated not only the Plaintiff’s attorney but the entire Plaintiff’s law firm.

According to the appellate Opinion, the trial court had agreed that the specific Plaintiff’s attorney should be disqualified.  However, the trial court ruled that the Plaintiff’s entire law firm did not have to be disqualified.

The appellate court disagreed on appeal. As such, the appellate court reversed the trial court’s Order and directed the trial court to enter an Order disqualifying the entire Plaintiff’s law firm.

In this regarding, the Superior Court ruled that the Plaintiff’s attorney at issue had had a substantial prior relationship with the Defendant that included the attorney having access to the Defendant’s confidential information regarding its internal operations and litigation strategy. 

The appellate court further found that the Plaintiff’s law firm’s small size weighed in favor of disqualification of the firm as it would be difficult to prevent contact between the attorney at issue and the other attorneys in the Plaintiff’s law firm. The court also noted that the Plaintiff’s attorney at issue had already provided substantial work on the Plaintiff’s case prior to the disqualification.

The appellate court was also influenced to rule in its fashion by the fact that the Plaintiff’s law firm had only implemented a conflicts screening policy after the particular attorney had been disqualified from the case.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Stevens can be reviewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Source of image:  Photo by GR Stocks on www.unsplash.com.

Please Consider Serving as Juror for LUZERNE COUNTY'S Mock Trial Competition (Virtual)

 

No Bad Faith If No Coverage Under UIM Policy

In the case of Miale v. Nationwide Ins. Co. of America, No. 2:21-CV-00702-CCW (W.D. Pa. Dec. 27, 2021 Wiegand, J.), the federal court dismissed a Plaintiff’s UIM bad faith claim given that there was an underlying finding that no coverage existed under the policy at issue such that there was, therefore, no valid breach of contract claim. 

The court noted that there was no coverage under the policy at issue given that the Plaintiff was found to have appropriately waived stacking under that policy.

The court reviewed issues surrounding intra-policy stacking and inter-policy stacking questions.    

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

I send thanks to Attorney Lee Applebaum of the Philadelphia office of Fineman, Krekstein & Harris for bringing this case to my attention. Attorney Applebaum is the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog which can be viewed HERE.

Source of image:   Photo by Kampus Production from www.pexels.com.

Eastern District Court Magistrate Judge Reviews Validity of UM/UIM Stacking Waiver Forms

In the case of Gramaglia-Parent v. Travelers Home & Marine Ins. Co., No. 2:-20-CV-03480-TR (E.D. Pa. Dec. 30, 2021 Rice, Mag. J.), the court ruled that an inter-policy UM/UIM stacking waiver form was not invalid simply because it contained additional language in a separate instruction section that was superfluous to the language required by the Pennsylvania Motor Vehicle Financial Responsibility Law.

As such, the carrier’s Motion for Summary Judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 20, 2022).

Personal Injury Claim By Family Claiming Worker Died From COVID-19 Virus Contracted At Work Dismissed Under Worker's Compensation Act

In the case of Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Dec. 6, 2021 Diamond, J.), the court ruled that a claim that an employer willfully or wantonly exposed its employees to the COVID-19 virus was insufficient to overcome the exclusivity provisions of the Worker’s Compensation Act.  As such, the Defendant’s Motion to Dismiss was granted.

In this matter, the Plaintiff’s decedent passed away allegedly due to complications from the COVID-19 virus.

The Plaintiff alleged that the decedent’s employer caused the decedent’s wrongful death by failing to implement any safety measures after the outbreak of the COVID-19 pandemic. The Plaintiff also asserted that the Defendant allegedly maintained a work-while-sick policy.

The federal court granted the Defendant’s Motion to Dismiss after finding, in part, that the Plaintiff’s claims were barred by the Pennsylvania Worker’s Compensation Act.

The court more specifically held that willful or wanton disregard for employee safety was insufficient to overcome the exclusivity provisions of the Act.

Instead, the court noted that an employee could fall outside of the Worker’s Compensation Act only upon a showing that an employer’s fraudulent misrepresentation caused an aggravation of a pre-existing injury. In this case, the court found that the Plaintiff’s allegations did not amount to any showing that any alleged wrongful conduct on the part of the employer caused any aggravation of any pre-existing conditions of the Plaintiff’s decedent.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 21, 2021).

Pennsylvania Superior Court Addresses Forum Non Conveniens Doctrine [Non-Precedential]

In the case of Green v. CSX Transp., Inc., No. No. 2218 EDA 2020(Pa. Super. Dec. 21, 2021 Collins, J., DuBow, J., and Murray, J.) (Op. by Collins, J.)[Non-Precedential Decision], the Pennsylvania Superior Court found that a Defendant's Motion to Dismiss for forum non conveniens was valid and should have been granted by the trial court.  

According to the Opinion, the Plaintiff, who was a Maryland resident, alleged that he developed cancer from exposure to toxic substances during the course of his employment as a train conductor and brakeman which employment was almost at all of which took place in Maryland.

In its decision, the Pennsylvania Superior Court ruled that it was an abuse of discretion for the trial court to have concluded, based upon the availability of remote deposition procedures and other discovery due to the COVID-19 pandemic, that it was no longer material, for forum non conveniens purposes, as to where the actual litigation would be litigated. 

The court stated that reliance upon modern technology to obviate the need for in-person aspects of litigation and trial has been rejected as a justification to deny a Motion to Dismiss on forum non conveniens grounds.

In this case, the court emphasized that the Plaintiff had not worked in Pennsylvania for more than thirty (30) years. As such, any basis for the litigation being conducted more easily here in Pennsylvania was found to be tenuous, at best. 

The also court found that any connection that the Plaintiff had with Pennsylvania was merely transitory and de minimis, as compared to the obvious and more convenient alternate forum.

It was additionally noted by the court that no Pennsylvania fact witnesses had been identified.

In the end, the Pennsylvania Superior Court ruled that, given the clear viability of another state of an alternate forum for the litigation of this case, the appellate court found that it was an abuse of the discretion by the trial court to find to the contrary.

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


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.