Friday, April 29, 2022

Plaintiff Must Separate Out Claims Against Separate Defendants in a Complaint


In the case of Gowden v. Com., Pa. Dept. of Transp., No. 21-CV-3046 (C.P. Lacka. Co. March 31, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections filed by Defendants challenging the specificity of an Amended Complaint in a case involving a motor vehicle accident that was allegedly caused, in part, due to loose gravel and other materials resulting from the work on the roadway.

Judge Nealon sustained the Defendant’s Preliminary Objections against the Plaintiff’s general use of the term “Defendants” throughout the Complaint without identifying which named Defendants were being accused of which acts of negligence. The court noted that, in the Amended Complaint at issue, the only change the Plaintiff made from the general, lump sum allegations against all “Defendants” in the Amended Complaint was to simply insert the names of the Defendant after the terms “Defendants” in the challenged paragraphs. This the court again found was insufficient to put the defense on notice as to which Defendant was being accused of which act of negligence.

As such, the court sustained the Preliminary Objections to the Plaintiff’s only negligence count in the Amended Complaint given that that pleading attempted to assert a single negligence claim against all four (4) Defendants based on the same exact conduct in violation of the Pennsylvania Rules of Civil Procedure.

The court granted the Plaintiff a “final opportunity to sufficiently identify each cause of action being advanced against named Defendant in a separate count.” The court noted that, the failure of the Plaintiff to do so in the next Amended Complaint would result in a dismissal of claims.


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


Source:  Photo by Ujesh Krishnan on www.unsplash.com.

Thursday, April 28, 2022

Dog Bite Case Allowed To Go Beyond Summary Judgment Stage


In the case of Wentz v. Blakeslee, No. 2646-CV-2020 (C.P. Monroe Co. Feb. 7, 2022 Williamson, J.), the court denied a Motion for Summary Judgment in an alleged dog bite case given the presence of material issues of fact.

According to the Opinion, the Plaintiffs and their minor son were guests at the home of a friend. While playing outside, the minor and other children went over to a neighboring residence to say goodbye to a dog that they knew. Apparently, the dog was ill and was set to be put down the next day.

The Plaintiff alleged that, when the minor went into the room where the dog was resting, the dog allegedly attacked and bit the child after he touched the dog.

In response to the Defendant’s Motion for Summary Judgment, the court found that there were material issues of fact regarding whether the Defendant had prior knowledge of his dog’s alleged dangerous propensities, whether the minor Plaintiff provoked the dog, and whether the Defendant could have done anything to prevent the child from having contact with the dog.

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


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

Photo by Andrew Neel on www.pexels.com.

Defendant Given Another Chance to Allege More Factually Specific New Matter Defenses


In the case of J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.), a court addressed Preliminary Objections filed by a Plaintiff against a Defendant’s Amended Answer and New Matter. According to the Opinion, this matter involved an alleged dog bite incident.

In the Plaintiff’s Preliminary Objections to the Defendant’s New Matter, the Plaintiff alleged a lack of factual specificity in violation of the Rules of Civil Procedure as well as a lack of legal sufficiency.

The Plaintiff attacked the allegations in the Defendant’s New Matter in which the Defendants had asserted that the Plaintiff’s injuries and/or damages may have been caused in whole or in part by the Plaintiff’s own conduct when the Plaintiff had interacted with the dog.  The Plaintiff also attacked allegations by the Defendant that the Plaintiff may have assumed the risk of injuries and/or that the Plaintiff failed to mitigate any alleged injuries by not following medical advice.

After reviewing the pleadings, the court found that the Defendants failed to provide sufficient factual specificity in support of the defenses raised in the Defendant's New Matter. The court noted that the conclusory paragraphs asserted by the Defendant did not enable the Plaintiff to prepare their case in opposition to the defenses raised.

In striking the new matter allegations regarding contributory negligence and assumption of the risk, the court noted that, under Pa. R.C.P. 1030(b), it is provided that the affirmative defenses of assumption of the risk and contributory negligence need not be pled.  As such, the court noted that the Defendant did not need to restate these claims in any amended pleading but that, if they chose to do so, the Defendants were required to fully conform to the requirement under Pa. R.C.P. 1019(a) of providing sufficient factual specificity in support of such pleadings.

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


I send thanks to Attorney Thomas J. Newell of Newell Law in Perkasie, PA for bringing this case to my attention.

Wednesday, April 27, 2022

Res Ipsa Loquitur Doctrine Applied to Allow Motor Vehicle Incident Case to Proceed



In the case of Houck v. WLX, LLC, No. 3:19-CV-275 (M.D. Pa. March 10, 2022 Mariani, J.), the court denied summary judgment after finding that a Plaintiff had created enough of a record in a circumstantial case as to the justify the application of the res ipsa loquitur doctrine in a case where an item allegedly fell off a Defendant’s truck, bounced, and went through the windshield of the Plaintiff’s decedent’s vehicle with fatal results.

The court noted that, although there were no witnesses, the facts of the case, viewed in a manner most favorable to the Plaintiff as required by the applicable standard of review, established that an item from the Defendant’s truck could have possibly fallen off of the truck, bounced on the roadway, and ended up through the windshield of the decedent.

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


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

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?


 

Tuesday, April 26, 2022

Validity of Part of Pennsylvania's Long-Arm Statute Going Up to the U.S. Supreme Court for Consideration


The United States Supreme Court has agreed to consider arguments in the Pennsylvania case of Mallory v. Norfolk Southern Railway about the constitutionality of Pennsylvania’s law requiring out-of-state companies and corporations to submit to jurisdiction in Pennsylvania as a requirement when registering to do business in the Commonwealth.

The Pennsylvania Supreme Court ruled that this law was unconstitutional late last year, finding that it violated due process principles.

The Tort Talk post on the Pennsylvania Supreme Court's decision in the Mallory case, along with a Link to that decision, can be viewed HERE.

Source:  Article - "SCOTUS Takes Up Appeal Over Pa.'s Jurisdiction By Business Registration Law" by Max Mitchell of the Pennsylvania Law Weekly (April 25, 2022).

Source of image:  Photo by Brad Weaver on www.unsplash.com.

Exculpatory Clause in Fitness Center's Membership Agreement Upheld


In the case of Milshteyn v. Fitness International, LLC, 2022 Pa. Super. 30 (Pa. Super. Feb. 18, 2022 Panella, P.J., Kunselman, J., and Stevens, P.J.E.) (Op. by Panella, P.J.), the Pennsylvania Superior Court found that the trial court properly granted summary judgment to a fitness facility in a Plaintiffs’ slip and fall action where the membership agreement signed by the Plaintiff was not found to be a contract of adhesion.

The court also found that the release in the agreement clearly foreclosed the Plaintiff from proceeding on the claim presented.

The court additionally found that the Plaintiffs’ claim for gross negligence found in an Amended Complaint constituted a wholly distinct claim from the claim presented in the original Complaint. The court noted that the Plaintiffs had attempted to add a claim of gross negligence after the expiration of the applicable statute of limitations in an effort to get around the release in the membership agreement given that a claim for gross negligence would not have been barred by the membership agreement. As such, the court stated that, in this context, the Plaintiff’s claims for gross negligence should be deemed to constitute a new cause of action.

As such, the appellate court affirmed the trial court’s entry of summary judgment.

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

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


Photo by Max Vakhtbovych from www.pexels.com.

Monday, April 25, 2022

REMEMBER: Administrative Assistant's Day is This Wednesday

 


NOTE TO SELF.......

This Wednesday, April 27th is ADMINISTRATIVE PROFESSIONALS DAY.

Don't forget to take care of those co-workers who help to make it all happen and help to make you look good!


Photo by Aaron Burden from www.unsplash.com.


Plaintiff's Bad Faith Claim Found To Be Barred by Two Year Statute of Limitations


In the case of Dana Mining Co. of PA v. Brickstreet Mut. Ins. Co., No. 2:21-CV-00700 (W.D. Pa. March 9, 2020 Colville, J.), the Western District Federal Court addressed bad faith issues and the statute of limitations related thereto.

According to the Opinion, in this matter, the carrier refused to defend or indemnify its insured against an underlying tort lawsuit. The insured then sought declaratory relief and claimed a breach of contract and bad faith.

The carrier filed a Motion to Dismiss the bad faith claim on statute of limitations grounds.

In this matter, the carrier had denied coverage in May of 2017. The insured instituted a bad faith claim in April of 2021.

The court in this matter confirmed that the statute of limitations for bad faith claims under 42 Pa. C.S.A. §8371 is two (2) years.

The court additionally confirmed that the statute of limitations for claims of §8371 bad faith begins to run when the Plaintiff’s right to institute and maintain a lawsuit for bad faith arises. The court reiterated the rule that a lack of knowledge, mistake, or misunderstanding does not serve to toll the running of the statute of limitations.

The court more specifically noted that a bad faith claim can arise when a carrier definitively denies coverage and puts the insured on notice of the same.

Judge Colville noted that an insured cannot avoid the limitations period by asserting that a continuing refusal to cover was a separate act of bad faith. He referred to the law that repeated or continuing denials of coverage do not constitute separate acts of bad faith given rise to a new statutory period of time.

While the court did observe that there was case law in support of a proposition that, if a carrier subsequently denies coverage after the insured brings to the attention of the carrier “new evidence,” this may constitute a separate and independent injury that can trigger a new limitations period.

However, in this case, the court found that there were no allegations that the insured presented the carrier with any new facts or evidence regarding the underlying claim such that the carrier should have reconsidered its denial. As such, no new limitations period was found to have been triggered. As such, the case was dismissed.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog.

Photo by Jordan Benton on www.pexels.com.

UIM Bad Faith Claim Allowed to Proceed; UTPCPL Claim Dismissed


In the case of Wingrove v. Nationwide Prop. & Cas. Ins. Co., No. 2:21-CV-00940 (W.D. Pa. March 28, 2022 Colville, J.), the court found that a Plaintiff adequately pled a UIM bad faith claim regarding claims handling issues and an alleged delay in payment. However, the Court dismissed claims that were brought by the Plaintiff under the Unfair Trade Practices and Consumer Protection Law (UTPCPL) as well as under the Pennsylvania Motor Vehicle Financial Responsibility Law.

According to the Opinion, the insured brought bad faith claims regarding the carrier’s failure to pay UIM benefits and wage loss benefits. The carrier filed a Motion to Dismiss in this federal court matter.

After reviewing the Complaint, the court found that the Complaint described in sufficient detail the facts that described the who, what, where, when, and how questions with regard to alleged bad faith conduct.

More specifically, the court found that the Plaintiff had alleged facts in support of claims of a lack of any investigation or evaluation, alleged repeated failures on the part of the carrier to communicate with the Plaintiff’s counsel despite Plaintiff’s counsel’s attempt to contact the carrier, and also alleged an unexplained delay of seven (7) months between the Plaintiff’s demand and the carrier’s offer. The court found that these allegations were sufficient to allow the bad faith claim to proceed.

The court otherwise dismissed the Plaintiff’s UTPCPL claims after finding that that law did not apply to claims handling, but only to conduct prior to the entry of an insurance agreement. The court noted that the allegations all involved claims handling issues and not the sale of an insurance policy.

The court also agreed that the claims raised by the Plaintiff under 75 Pa. C.S.A. §1716 of the Motor Vehicle Financial Responsibility Law, which addressed first party benefits issues, did not apply to UIM claims. As such, those claims were dismissed as well.

The court otherwise refused to strike references to a fiduciary duty as set forth in the Complaint. In this regard, the court found that the Plaintiff had not specifically asserted any claim for a breach of a fiduciary duty and that there was, therefore, no need for the drastic action of striking allegations sounding in that regard from the case at that early stage of the case.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman Krekstein and Harris, and also the writer of the Pennsylvania New Jersey Insurance Bad Faith Case Law blog for bringing this case to my attention.  Click HERE to view Lee's Blog.

Friday, April 22, 2022

No Jurisdiction Found Over Out-of-State Contractor in Construction Litigation Case


In the case of Bean Sprouts LLC v. Life Cycle Const. Serv., LLC, No. 1467 EDA 2021 (Pa. Super. Feb. 17, 2022 Panella, P.J., Dubow, J., McCaffery, J.) (Op. by Panella, P.J.), the Pennsylvania Superior Court held that the trial court did not err when it found that the Defendant did not have the requisite minimum contacts with Pennsylvania for the trial court to exercise jurisdiction.

According to the Opinion, this case arose out of a construction contract dispute.

The Plaintiff was a construction and excavating company and the Defendant was a contractor engaged in construction projects throughout the country.

The Plaintiff filed a breach of contract action in Pennsylvania. The Defendant contractor filed Preliminary Objections asserting that it did not have the requisite minimum contacts with Pennsylvania such that a Pennsylvania court could not exercise personal jurisdiction over the Defendant.

The trial court sustained the Preliminary Objections and the appellate court affirmed.

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

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

Photo by skitterphoto on www.pexels.com.

No Duty to Defend or Indemnify Found Relative to Alleged Faulty Workmanship in a Home Construction Case


In the case of Main St. Am. Assurance Co. v. Conolly Contractors, Inc., No. 2:19-CV-04241-JHS (E.D. Pa. Feb. 28, 2022 Slomsky, J.), the court granted the carrier’s Motion for Judgment on the Pleadings in its declaratory judgment action.

The issue in this case is whether the carrier had a duty to defend and indemnify a contractor or builder who was sued by homeowners for alleged home construction defects.

The court found that the carrier had no duty to defend and indemnify because the homeowners’ claims of faulty workmanship did not allege that the property damage was caused by an “occurrence” as required by the contractor’s policy of insurance.

The court additionally found that the builder was not listed as an additional insured under the contractor’s policies.

As such, the carrier’s Motion for Judgment on the Pleadings in this declaratory judgment was granted.

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 (March 24, 2022).

Thursday, April 21, 2022

It's Alive, It's Alive!! -- The Pennsylvania Superior Court Upholds the Household Exclusion as Enforceable (Currently Listed as "Non-Precedential")

Yesterday, the Pennsylvania Superior Court held in Erie Ins. Exch. v. Colebank, No. 1244 WDA 2021 (Pa. Super. April 20, 2022 Bender, P.J.E., Lazarus, J., McCaffery, J.)(Op. by McCaffery, J.), a decision which the Court listed as a Non-Precedential decision, that a household exclusion was enforceable in a situation where a claimant was injured while driving a vehicle on which all UIM coverage had been rejected.

In the Colebank case, the claimant was injured while driving a vehicle insured by State Farm. Notably, the claimant had rejected all UIM coverage on the State Farm policy.

After an accident with an allegedly underinsured driver, the claimant made a claim for stacked UIM coverage under his parents’ separate Erie Insurance policy.

Coverage was denied by Erie Insurance on the basis of the household exclusion contained within the Erie Insurance policy.  Erie asserted that the Gallagher v. GEICO case was not controlling because the claimant had knowingly rejected UIM coverage under his own State Farm policy and, therefore, the issue of stacking was not in play.

The claimant argued that the claimant’s rejection of stacking under the State Farm motorcycle policy was irrelevant as to the issue of whether he was entitled to stacked coverage under the Erie policy.  The claimant asserted that he was still entitled to stacked coverage under the terms of the Erie policy possessed by his parents as he was a resident relative.  The claimant also argued that the household exclusion was contrary to the mandates of the MVFRL and was, therefore, void and unenforceable.

The court disagreed. The Pennsylvania Superior Court ruled that enforcing the household exclusion in the parents’ policy was consistent with the legislative intent of MVFRL and with Gallagher because such enforcement will have the effect of holding the claimant to his voluntary choice of coverage or a lack thereof. 

Moreover, the Pennsylvania Superior Court ruled that, because the claimant had rejected UIM coverage on his motorcycle policy, “Gallagher is not applicable and did not invalidate the household exclusion.”  Rather, the Court found that, where the injured party did not purchase stacked coverage under his own policy, he did not have the requisite coverage on which to stack the UIM coverages under his parents' separte household policies.  

Notably, the Superior Court noted that this analysis "is consistent with the MVFRL as the [claimant] voluntarily chose not to purchase UIM coverage in his automobile policy, and in return received reduced insurance premiums."  See Op. at p. 25.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Benjamin P. Novak, Esq. from the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLP, for bringing this notable decision to my attention.

Source of image:  Photo by Andrea Piacquadio on www.pexels.com.

Wednesday, April 20, 2022

If No Coverage Under Policy, Then No Bad Faith


In the case of Walker v. Foremost Ins. Co., No. CV-20-4966 (E.D. Pa. March 2, 2022 McHugh, J.), the court followed prior precedent in granting summary judgment on a bad faith claim after finding that there was no coverage due on the policy in question.

According to the Opinion, this case arose out of an incident during which a homeowner’s fallen tree damaged her neighbor’s property.

The neighbor and the neighbor’s carrier sued for damages.

The homeowner’s carrier asserted that its policy did not provide liability coverage for the claim at issue.

The neighbor filed for breach of contract and bad faith.

After finding that no coverage was due under the policy and granting the homeowner’s carrier’s Motion for Summary Judgment on the breach of contract claim, the court likewise granted the summary judgment on the bad faith claim indicating that, since there was no coverage due under the policy, “by definition, the insurer had a reasonable basis to deny the benefits.”

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris for bringing this case to my attention through his Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.


Photo by Castorly Stock on www.pexels.com.

Bad Faith and UTPCPL Claims Dismissed in Damage to Motorhome Case



In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274-PLD (W.D. Pa. March 3, 2022 Dodge, M.J.), a federal magistrate district court judge for the Western Federal District Court of Pennsylvania issued a Memorandum Opinion in an insurance bad faith case.

According to the Opinion, the Plaintiffs owned a motorhome that sustained storm damage when a tree fell on top of the motorhome, which allowed rainwater and other moisture to penetrate the motorhome and cause damage to the interior and the Plaintiffs’ property located inside.

The Plaintiffs asserted that they were advised that the policy would provide coverage for this type of loss. When they notified Allstate of the damages, Allstate refused to provide coverage. The Plaintiff sued for a breach of contract, bad faith, and for treble damage under the Unfair Trade Practices and Consumer Protection Law.

After reviewing the facts before it, and applying the relevant law, the court granted Allstate’s Motion to Dismiss the Plaintiff’s claims of negligence and bad faith without prejudice. The court also granted Allstate’s Motion to Dismiss with prejudice relative to the claims under the Unfair Trade Practices and Consumer Protection Law.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Monday, April 18, 2022

Doctrine of Forum Non Conveniens Reviewed In Dispute Between Two Plaintiff's Law Firms Over a Substantial Fee


In the case of Fellerman & Ciarimboli Law, PC v. Joseph L. Messa, Jr., & Associates, No. 21-CV-4654 (C.P. Lacka. Co. April 14, 2022 Nealon, J.), the court addressed issues under the doctrine of forum non conveniens.

According to the Opinion, the personal injury law firm Plaintiff in this matter, which maintains offices in Delaware County, Lackawanna County, Luzerne County, Philadelphia County, and New Jersey, commenced a declaratory judgment action against a Philadelphia personal injury law firm seeking a determination regarding the proper method for calculating the Philadelphia firm’s share of attorney’s fees of a little over $2 million dollars that relative to a civil litigation matter.

The counsel fees in dispute were generated from a wrongful death lawsuit that was filed and litigated in Philadelphia County and defended by Philadelphia area attorneys. The underlying case arose from the death of a Philadelphia resident in a Philadelphia accident. The court also noted that the counsel fees were approved by a Philadelphia County judge.

It was also noted that, with regards to the attorney’s fees at issue, the Philadelphia law firm had instituted a separate action against the Plaintiff law firm in Philadelphia County asserting breach of contract, breach of fiduciary duty, unjust enrichment, and other claims.

In this Lackawanna County declaratory judgment case filed by the Plaintiff law firm, the Defendant Philadelphia law firm filed a Petition pursuant to Pa. R.C.P. 1006(d)(1) seeking to transfer venue in this declaratory judgment action to the Court of Common Pleas of Philadelphia County on forum non conveniens grounds.

After reviewing the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas determined that the records contained sufficient proof that the continued litigation of this declaratory judgment action in Lackawanna County would be unduly burdensome for the Philadelphia law firm and the anticipated witnesses. The court noted that no material witness or any relevant evidence was located in Lackawanna County and that Philadelphia County would provide easier access to the witnesses and other sources of proof.

Based upon the totality of the circumstances, the court found that Lackawanna County is an oppressive forum for the adjudication of this case. As such, the court granted the Petition to Transfer Venue and transferred the case to Philadelphia County.

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

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

Evidence of 20 Year Old Crimini Falsi Conviction Precluded


In the case of Lett v. SEPTA, No. 2:19-CV-03170-KSM (E.D. Pa. Feb. 10, 2022 Marston, J.), the court issued an evidentiary ruling regarding a prior criminal conviction of a Plaintiff in a disability discrimination lawsuit that the Plaintiff filed against his former employer.

The Plaintiff filed a Motion In Limine to preclude the Defendants from introducing evidence at trial regarding the Plaintiff’s 20 year old fraud convictions. The Plaintiff asserted that the probative value of this evidence was outweighed by the prejudicial effect of the conviction due to their age.

The court granted the Plaintiff’s Motion In Limine. 

Judge Marston noted that, while a criminal conviction involving a dishonest act or false statement could be admitted to attack a witness’ credibility, if the conviction occurred more than ten (10) years ago, the admitting party must prove that its probative value substantially outweighed any prejudice effect.

The court emphasized that the Plaintiff’s criminal convictions occurred twenty (20) years ago.

The court found that, while the Plaintiff’s convictions were indeed probative of the Plaintiff’s character for truthfulness because fraud crimes implied dishonesty, the court ruled that the age of the conviction meant that their probative value did not outweigh the risk of prejudice.

As such, the Plaintiff’s Motion was granted and the evidence precluded.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2022).


Photo by Michael Forsch on www.pexels.com.

Have You Registered for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)?


 

Proper Venue Against One Defendant Can Be Proper Venue Against All Defendants


In the case of Hagedorn v. Rick’s Backhoe Service, Inc., No. 18-CV-3723 (C.P. Lacka. Co. April 5, 2022 Nealon, J.), the court addressed an improper venue challenge in a case where a Plaintiff’s attorney was appointed the Administrator of a deceased tortfeasor’s estate.

According to the Opinion, an injured Schuylkill County motorcyclist filed a lawsuit against the Lackawanna County personal representative of a deceased truck driver's estate and a Schuylkill County trucking company regarding a motor vehicle accident that occurred in Berks County. 

The accident allegedly arose out of an alleged road rage incident. The Plaintiff alleged that the truck driver pursued the motorcyclist following an angry exchange of strong language and gestures in a construction zone. The truck driver allegedly struck the rear of the Plaintiff’s motorcycle and ejected the motorcyclist from his motorcycle, resulting in fatal injuries.

The Defendant Administrator of the truck driver's estate and trucking company filed Preliminary Objections challenging venue under Pa. R.C.P. 1006(b) and Pa. R.C.P. 2179(a) on the basis that the trucking company did not regularly conduct business in Lackawanna County as required under the quality/quantity test for corporate venue.

The trucking company also filed a demurrer to the Plaintiff’s allegations of willful, wanton, and reckless conduct on the part of the truck driver, as well as the claims for punitive damages, on the basis that those claims lack a sufficient factual basis.

On the venue issue, the court noted that, since a civil action against a deceased tortfeasor must be filed against the personal representative of the decedent’s estate, and given that the Administrator appointed to the truck driver’s estate was properly served at the Administrator’s law office in Lackawanna County, venue is found to be proper as to that personal representative. 

Judge Nealon additionally noted that, since Pa. R.C.P. 1006(c)(1) provides that an action seeking to enforce joint or joint and several liability against multiple defendants may be brought against all Defendants in any county in which venue may be established against any one of the defendants, and given that the motorcyclist had asserted joint and/or joint and several liability against both the Administrator of the tortfeasor's estate and the trucking company, venue is also found to be proper in Lackawanna County with respect to the trucking company regardless of whether or not the trucking company regularly conducted business in Lackawanna County.

As to the allegations of recklessness and the claims for punitive damages, Judge Nealon followed his numerous previous decisions in allowing such claims to be asserted in any case whatsoever regardless of the facts alleged. The court additionally noted that, even if Rule 1019 did happen to obligate the Plaintiff to allege specific facts sufficient to sustain a punitive damages claim at trial (which this Court did not read Rule 1019 as requiring), the allegations regarding the truck driver’s alleged actions, for which the trucking company would allegedly be vicariously liable, were found to satisfy that standard in any event in this case involving alleged road rage conduct.

As such, all of the Preliminary Objections asserted were overruled.

It is noted that, on pages 13 and 15 of the Opinion, Judge Nealon made references to the dispute in Pennsylvania as to the proper assertion of claims of recklessness in Pennsylvania and, in doing so, noted the Pennsylvania Bar Quarterly article entitled “Pleadings for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters” written by Daniel E. Cummins.

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


Photo by Vova Kraslinikov on www.pexels.com.

Thursday, April 14, 2022

Plaintiff's UM/UIM Bad Faith Claim Based on Alleged Low Ball Offer Dismissed


In the case of Robinson v. Geico, No. 21-CV-05059 (E.D. Pa. March 4, 2022 Kenney, J.), the court denied a Plaintiff’s Motion to Amend a breach of contract Complaint to add a bad faith claim.

The Plaintiff is attempting to amend the Complaint to add a claim of bad faith by the carrier in its evaluation and alleged submission of a low ball settlement offer.

The court noted that the proposed Amended Complaint that was attached to the Motion to Amend only contained broad conclusory allegations related to an alleged bad faith claim and was devoid of any facts as to where any medical records would establish at least $50,000.00 worth of damages in the information that had been provided to defense counsel in support of the Plaintiff’s settlement demand in that amount.

As such, the court found that the proposed Amended Complaint failed to state a claim upon which relief could be granted for bad faith and, as such, the Motion to Amend was denied as futile.

In so ruling, Judge Kenney noted that the proposition that the failure to immediately concede to a demand for the policy limits cannot, without more, amount to bad faith on the part of an automobile insurance carrier.

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

In a related decision in the same matter issued by the court five days after this one, the Court sua sponte dismissed the Plaintiff's UM/UIM case where the record confirmed that the subject policy only had $50,000 in limits, which amount of potential damages was less than the $75,000 amount necessary for federal court subject matter jurisdiction.  Click HERE to see that Opinion, and HERE to see the Court's companion Order.

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


Photo by Karolina Grabowska on www.pexels.com.

UIM Bad Faith Claim Allowed to Proceed But UTPCPL Claim Dismissed



In the case of Defuso v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-507 (M.D. Pa. March 21, 2022), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania found that a Plaintiff had pled sufficient facts to survive a Motion to Dismiss her bad faith claim in a UIM case. However, the Plaintiff’s claims for violations under the Unfair Trade Practices and Consumer Protection law was dismissed.

According to the Opinion, the tortfeasor tendered its $100,000.00 liability limits to the Plaintiff and the UIM carrier agreed to consent to that settlement. The Plaintiff had $50,000.00 in stacked UIM coverage.

The record in the case revealed that the Plaintiff participated in discovery, a statement under oath, and an IME over the first seventeen (17) months of the claim. Following the expiration of that time, the carrier made its first offer of $7,500.00.

Judge Malachy E. Mannion
M.D. Pa.


In his Opinion, Judge Mannion found that the Plaintiff had adequately pled a bad faith claim. Judge Mannion rejected the argument of the defense that the case merely involved a valuation dispute. 

In so ruling, the court pointed to allegations by the Plaintiff that there were delays in the claims handling and that the carrier allegedly failed to entirely and appropriately investigate and evaluate the case presented. The Plaintiff also alleged that the carrier had unreasonably undervalued the Plaintiff’s claims.

The court did, however, dismissed the Plaintiff’s UTPCPL claim after finding that the Plaintiff merely recited the elements of such claim and did not allege facts to support the same. The court additionally noted that a claim of an alleged failure on the part of the carrier to act on an insurance claim in a timely manner was not a valid cause of action under the UTPCPL, as such a claim is a claim for nonfeasance as opposed to a claim of malfeasance.

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


I send thanks to Attorney Lee Applebaum of the law office of Fineman Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog.

Wednesday, April 13, 2022

Slip and Fall On Snow or Ice Case Gets Beyond Summary Judgment


In the case of Tuft v. Giglio, No. 3:20-CV-643 (M.D. Pa. March 7, 2022 Mannion, J.), the court denied summary judgment in a slip and fall case.

In this matter, in which there is testimony that the Defendant’s property had been cleared of snow before the Plaintiff allegedly fell, the court found that a dispute of fact prevented summary judgment under the hills and ridges doctrine.

Judge Mannion reiterated the rule of law that the hills and ridges doctrine only applies to a natural accumulation of snow or ice. The court found that, under the facts of this case, there was a factual dispute as to whether the doctrine should be applied.

As such, summary judgment was denied.

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 Reid Smith law firm for bringing this case to my attention.


Photo by Miguel Padrinan from www.pexels.com.

Trivial Defect Doctrine Found Not To Apply on Private Property



In the case of Ramsey v. Buchanan Auto Park, Inc., No. 1:16-CV-01879-CCC (M.D. Pa. March 7, 2022 Connor, J.), the court granted in part and denied in part, post-trial motions in a slip and fall case after a verdict was entered in favor of the Plaintiff.

In one notable ruling, the court held that the trivial defect jury instructions that were developed in the context of public sidewalks was not applicable in the context of alleged defects on private property that allegedly injured business invitees.

The court noted that, in any event, this topic of liability was adequately covered by the jury instructions under which the jury was advised that, in order for the Plaintiff to recover, the property must have a condition which amounted to an unreasonable risk of harm to the Plaintiff.

This decision is also notable in that the Court found that photographs of the area where the Plaintiff fell that were taken in 2017 were admissible even though there were slight variations in the conditions of the area since the Plantiff's 2014 fall down event.  The Court noted that the photos were authenticated by a witness and that any variations were pointed out to the jury by the witness and in the jury instructions.  

The court otherwise noted that damages for lost wages awarded by a jury is not necessarily excessive merely because the award exceeds the amount of the worker’s compensation lien. The court noted that the lien is not a cap on the Plaintiff’s claim for past wage loss.

However, the court did find that the award entered by the Plaintiff for the Plaintiff’s claim for loss of future earnings was against the weight of the evidence where the Plaintiff failed to present any evidence in this regard.

The court ordered a new trial on the issue of damages after finding that the jury may have erroneously included non-economic damages in its future earnings award.

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


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

Tuesday, April 12, 2022

Section 1983 Claims in Context of Nursing Home Litigation Reviewed


In the case of Tammaro v. County of Chester, No. 21-3811 (E.D. Pa. Feb. 16, 2022 Robreno, J.), the court granted in part and denied in part the Motion to Dismiss filed by the Defendants, which consisted of a health care facility and a county that owned that facility.

According to the Opinion, the Plaintiff Administratrix filed §1983 Civil Rights and Wrongful Death and Survival claims along with Federal Nursing Home Reform Act claims. 

After reviewing the facts before it and applying the law, the court found that the Plaintiff’s theory that the Defendant deliberately understaffed its facility was not a cognizable theory of liability for her §1983 civil rights claim.

However, the court found that the Plaintiff had sufficiently stated a failure-to-train claim.


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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 10, 2022).


Photo by Matthias Zomer on www.pexels.com.

PA Superior Court Rules that a Worker's Compensation Carrier Does Not Have a Right To Force a Plaintiff To Take Action Against a Third Party Tortfeasor To Recover a Lien


In the case of Loftus v. Decker, No. 611 WDA 2021 (Pa. Super. March 10, 2022 Olson, J., Murray, J., and Pellegrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court quashed an appeal by a worker’s compensation carrier who had appealed the trial court’s denial of its Motion to Intervene in a personal injury case.

The record before the Court indicated that the injured party was a school bus driver who was injured during a motor vehicle accident.  During the course of the underlying matter, the injured party incurred a worker's compensation lien in excess of $196,000. 

According to the Opinion, the worker’s compensation carrier attempted to intervene after the Plaintiff-employee filed a Writ of Summons against an alleged tortfeasor.

The appellate court found that §319 of the Worker’s Compensation Act did not give a party any right, directly or indirectly, to take any action against a third-party tortfeasor. As such, the appellate court found that a worker’s compensation carrier could not force a Plaintiff employee to seek a recovery to satisfy a worker’s compensation statutory lien.

The Superior Court also noted that the Order from which the worker’s compensation carrier had appealed was not an appealable collateral Order.  Notably, the Pennsylvania Superior Court stated that it was addressing the issue of whether the Order at issue was an appealable collateral Order within its decision on the merits.  As such, the Court in this decision addressed the merits of the issues presented in this case relative to the ability of the worker's compensation carrier to intervene in the action.

As noted, this appeal was quashed.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 29, 2022).


Photo by cottonbro on www.pexels.com.

Monday, April 11, 2022

Court Shutdowns Due to COVID-19 Pandemic Did Not Stop The Time For Delay Damages



In the case of Getting v. Mark Sales & Leasing, Inc., No. 348 MDA 2021 (Pa. Super. April 7, 2022 Olson, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Kunselman, J.), the court addressed issues raised by a Defendant following a trial at which a jury awarded the Plaintiff over $2 million dollars in damages for personal injuries and in which the Defendant claimed that it should not owe the Plaintiff delay damages for the length of time that the COVID-19 pandemic shuttered the Pennsylvania courts.

After reviewing the case before it and the applicable law, the Pennsylvania Superior Court affirmed the trial court’s decision that the Pennsylvania Supreme Court had not suspended the right of Plaintiff to collect delay damages during the 2020 judicial emergency.

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

I send thanks to Attorney John K. Shaffer from the Law Office of Lester G. Weinraub in Plymouth Meeting, PA for bringing this case to my attention.

Commonwealth Court Weighs In on Redaction of Claims Log Notes [Unpublished Decision]


In the case of Mwambu v. Volunteer, No. 1128 C.D. 2020 (Pa. Cmwlth. March 14, 2022 Covey, J., Wallace, J., Ceisler, J.)(Op. by Ceisler, J.) (unpublished), the Commonwealth Court of Pennsylvania addressed the proper redaction of claims log notes in discovery.

This matter arose out of a case in which a pedestrian Plaintiff was alleged injured when he was struck by an ambulance being driven by an employee of a municipal governmental agency.

During the course of discovery, the Defendant provided to the Plaintiff copies of notes written by employees of the Defendant’s insurance carrier regarding the claim along with an accompanying privilege log pertaining to the notes.

Within the production were redactions of information identified by the Defendant as being protected by the attorney client privilege or pertaining to mental impressions, work product, evaluations, theories, and litigation strategy of a defense representative.

The Plaintiff challenged these redactions and asserted that only opinions as to the merit or value of the claim should be redacted under the Rules of Civil Procedure.

In its Opinion, the Commonwealth Court provided its analysis on what can and cannot be redacted from claims log notes. The court seemed to follow the general rule that notations regarding any mental impressions, conclusions, or opinions by a representative of a Defendant regarding the merit or value of a claim or defense may be redacted as set forth in Pa.R.C.P. 4003.3.

Anyone wishing to review a copy of this unpublished Opinion from the Commonwealth Court may click this LINK.


I send thanks to Attorney Gerald Connor of the Scranton office of the Margolis Edelstein law firm for bringing this case to my attention.

Source of Image:  Photo by Marcus Urbenz on Unsplash.com.


Discovery of Excess Insurance Limits Allowed


In the case of Butler v. Scranton Manufacturing Co., Inc., No. 18-CV-5167 (C.P. Lacka. Co. Feb. 18, 2022 Nealon, J.), the court addressed issues regarding discovery of excess insurance information.

This case arose out of an incident during which a Dunmore, PA borough garbage collector was injured when he was riding a garbage truck on its rear riding step and that step allegedly snapped and detached from the truck while the truck was moving, resulting in injuries to the Plaintiff.

At issue in this particular decision was the Plaintiff’s Motion to Compel the Defendant to disclose excess carrier’s insurance information.

Judge Nealon noted that, “[a]lmost 50 years ago,” the Pennsylvania Supreme Court declared that the Plaintiff is entitled to pre-trial discovery of the identity of a Defendant’s liability carrier and the maximum coverage limits for any such liability coverage. 

That rule was more recently codified by the Pennsylvania Supreme Court under Pa. R.C.P. 4003.2, which became effective back in 1979 and provides, in pertinent part, that a “party may obtain discovery of the existence in terms of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment....”

The court noted that, based upon this law, the Pennsylvania Supreme Court has held that full and complete information regarding insurance coverage is essential to the settlement process and has long been held to be discoverable.

Judge Terrence R. Nealon
Lackawanna County


Judge Nealon found that the law was so well-established that “no Defendant or attorney can seriously argue in a court filing, without running a fowl of Pa. R.C.P. 1023.1, or the pertinent rules of professional conduct, that the existence, terms, and coverage limits of any liability insurance policy affording primary, excess or umbrella coverage to a named Defendant is not clearly discoverable.” See Op. at 3.

Based upon this law, the court granted Plaintiff’s Motion to Compel the Defendant to disclosure the excess carrier’s insurance information.

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

SAVE THE DATE: Lackawanna Pro Bono Golf Tournament


 

Friday, April 8, 2022

Montgomery County Auto Accident Case Driven Out of Philadelphia County Court of Common Pleas

All in all, [they'd] rather be in Philadelphia.

In the case of Hausmann v. Bernd, 2022 Pa. Super. 27 (Pa. Super. Feb. 17, 2022 Stabile, J., Dubow, J., and McCaffery, J.) (Op. by McCaffery, J.), the Pennsylvania Superior Court affirmed a Philadelphia County trial court decision that sustained Preliminary Objections by a Defendant based upon improper venue regarding a motor vehicle accident that occurred in Montgomery County.

The court found that venue in Philadelphia County was improper against the Defendant driver given that the Defendant driver lived in Montgomery County and given that the accident occurred in Montgomery County. 

However, the court acknowledged that, if venue was proper for the business Defendants in Philadelphia County, then the Plaintiffs could file suit against all three (3) Defendants in Philadelphia.

Yet, the court affirmed the trial court’s determination that the Defendant company did not “regularly conduct business” in Philadelphia County sufficient to support venue.

The court found that, generally speaking, the percentage of revenue derived from work in a county was not necessarily determinative of whether a business regularly conducted business operations in that county.

The court pointed to other evidence that supported the trial court’s decision that the company Defendant did not regularly conduct business in Philadelphia.

In so ruling, the Pennsylvania Superior Court also held that the Plaintiffs had an obligation to conduct discovery for any additional evidence that would have supported their claim to venue.

As noted, the decision by the trial court to sustain the Preliminary Objections to venue were affirmed on appeal.

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


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


Photo by Kelly L on www.pexels.com.

Wednesday, April 6, 2022

ARTICLE: The Regular Use Exclusion May Not be So Regular Anymore

 

This article was published in the March 31, 2022 edition of the Pennyslvania Law Weekly  and is republished here with permission.

The Regular Use Exclusion May Not be So Regular Anymore

By Daniel E. Cummins | March 31, 2022

 

Daniel Cummins



Recent state and federal decisions have confirmed that there has developed a split of authority in the state and federal trial and appellate courts over the validity and enforceability of the regular use exclusion. 


Most automobile insurance policies contain a regular use exclusion. That provision provides that coverage under that particular policy is excluded whenever the injured party was injured while in a vehicle that was regularly available for the use of the injured party but that was not covered by the insurance policy at issue. The basic rationale behind this exclusion is that a carrier should not have to provide coverage to an injured party where, unbeknownst to the carrier, the injured party regularly used another vehicle that was not covered under the carrier’s policy because the carrier was not paid a premium by the injured party to cover that risk.


Research reveals that the regular use exclusion has been upheld in Pennsylvania state trial court decisions dating back 65 years, see Burger v. Indemnity Insurance Company of North America, 7 Pa. D. & C. 2d 683 (C.P. Lyc. Co. 1956), and in Pennsylvania appellate state court decisions dating back to at least 34 years ago in the case of Wolgemuth v. Harleysville Mutual Insurance, 535 A.2d 1145 (Pa. Super. 1988).  


With the plaintiffs bar being emboldened by a slew of recent Pennsylvania Supreme Court decisions overturning decades of precedent on a wide variety of personal injury civil litigation issues for the benefit of plaintiffs, the plaintiffs bar recently turned their sights on attacking the continuing validity of the regular use exclusion. In fact, as noted below the plaintiffs bar has had recent success in this regard and is currently attempting to push this issue up to the Supreme Court.

The ‘Rush’ Case


In a case that history may come to call the case that marked the beginning of the end of the regular use exclusion, plaintiffs attorney Mark Altemose of the Bethlehem, Pennsylvania office of Cohen, Feeley, Altemose & Rambo was able to convince Northampton County Common Pleas Court Judge Stephen G. Baratta to find that the regular use exclusion violated Pennsylvania’s motor vehicle financial responsibility Law [MVFRL] in the case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2020 Baratta, J.).


In Rush, Baratta of the Northampton County Common Pleas Court granted partial summary judgment to the injured party plaintiffs after finding that Erie’s regular use exclusion violated the MVFRL.


According to the opinion, the plaintiff was a police officer who was injured while driving a police vehicle that was regularly available for his use at work.  With regards to this matter, the plaintiff was seeking UIM coverage under his personal automobile insurance policy.  


The trial court found that the regular use exclusion at issue violated the MVFRL in two respects.  First, the court in Rush referred to the Pennsylvania Supreme Court’s household exclusion decision in Gallagher v. Geico and found that the regular use exclusion in this case was invalid as a “disguised waiver” of UIM coverage when the MVFRL requires the carrier to secure written waivers of such coverage from the insured during the application process or otherwise.


Secondly, under a rationale previously set forth in Slupski v. Nationwide Mutual Insurance, 801 Fed. Appx. 850 (3d Cir. 2002), the trial court in Rush found that, because the plaintiff was entitled to liability/medical coverage of $250,000 for his injuries from the accident, the regular use exclusion was also found to violate 75 Pa.C.S.A. Section 1734, which mandated the carrier to provide UIM coverage equal to the bodily injury coverage available absent a written waiver secured from the insured.


Thereafter, in a case appellate first impression in the same matter of Rush v. Erie Insurance Exchange, 265 A.3d 794 (Pa. Super. Oct. 22, 2021 Bender, P.J.E., Dubow, J., and Stevens, P.J.E.), the Pennsylvania Superior Court held that the regular use exclusion found in motor vehicle policies is unenforceable because it violates the MVFRL. However, the Pennsylvania Superior Court utilized a different rationale than that voiced by the trial court in Rush to invalidate the regular use exclusion.


The Superior Court in Rush noted that the plaintiff was injured in a car accident, he was legally entitled to recover from the underinsured tortfeasors, and Erie had never obtained a 75 Pa.C.S.A. Section 1731 written waiver or rejection of UIM coverage from the plaintiff (rather, the plaintiff had chosen to purchase stacked UIM coverage). In ruling that the regular use exclusion was unenforceable, the Superior Court found that the regular use exclusion impermissibly limits the scope of UIM coverage required by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own.  

Quick Fallout From the ‘Rush’ Case


The impact of the Rush decision is beginning to be felt by carriers through recent federal court decisions.


In the U.S. District Court for the Western District of Pennsylvania case of Johnson v. Progressive Advanced Insurance, No. 2:21-CV-01916-AJS (W.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.


In its Feb. 23 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.


The carrier in this Johnson case 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 Government Employees Insurance, 32 A.3d 1195 (Pa. 2011) as support for the continuing validity of the exclusion.


In Johnson, Schwab decided not to follow the Williams decision based upon a reasoning that the Supreme Court Williams decision was only a public policy-based decision and not statutorily-based decision as the more recent Superior Court decision in Rush 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.


On the heels of the Western District Court decision in Johnson, came the decision of U.S. District Court for the Middle District of Pennsylvania Judge Malachy E. Mannion’s decision in the case of Evanina v. The First Liberty Insurance, No. 3:20-CV-00751-MEM (M.D. Pa. Feb. 25, 2022 Mannion, J.). Mannion likewise found the regular use exclusion to be invalid under the same rationale as put forth by Schwab three days earlier in the Johnson decision. In the Evanina case, Mannion 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.


Similar to Schwab’s decision in district court case of Johnson v. Progressive Advanced Insurance, Mannion in this Middle District Court case of Evanina decided not to follow the Pennsylvania Supreme Court’s decision in Williams and found that the Williams decision was only a public policy-based decision and not statutorily based decision as the more recent Rush decision by the Pennsylvania Supreme Court was relative to the MVFRL.


In his decision, Mannion also confirmed 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, 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.


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.”  


As such, Mannion, in a prediction that is likely to be as accurate at predicting that the sun will rise in the East tomorrow, 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 likely find this exclusion to be invalid and, therefore, unenforceable. Accordingly, Mannion ruled in the same fashion and denied the UIM carrier’s motion for summary judgment as a result.

A Split of Authority


As noted, until the Rush decision, the regular use exclusion had been repeatedly upheld as valid through decades of decisions up through the Pennsylvania Supreme Court’s decision in Williams in 2011 and more recent unpublished Pennsylvania Superior Court decisions. See Rawl v. GEICO, No. 1086 WDA 2019, 237 A.3d 1042 (Pa. Super. 2020)[unpublished]; see also Eckert v. Unitrin Auto Home Insurance, No. 1013 EDA 2019 (Pa. Super. 2020)[unpublished].  


As noted below, as the Rush decision was making its way up the appellate ladder, a number of other decisions came down in the state and federal courts upholding the continuing validity of the regular use exclusion and the notion that an injured party could not secure coverage that they did not pay for by way of any premium payments.


One plaintiff’s effort to rely upon the Gallagher v. Geico rationale to defeat a regular use exclusion was rebuffed by the U.S. District Court for the Western District of Pennsylvania in the case of Barnhart v. Travelers, 417 F. Supp. 3d 653 (W.D. Pa. Oct. 28, 2019 Horan, J.). The court in Barnhart specifically held that the Pennsylvania Supreme Court’s holding in Gallagher “does not extend to invalidate the ‘regular use exclusion’ or to overturn Williams as the controlling precedent” in support of the continued validity of the regular use exclusion.  


Also, in the separate case of Nationwide Affinity Insurance Company of America v. Fong, No. 2:19-cv-02119-CFK (E.D. Pa. April 28, 2020 Kenney, J.)[not published], Judge Chad F. Kenney of the U.S. District Court for the Eastern District of Pennsylvania upheld Nationwide’s reliance upon the regular use exclusion. 


The court in the Fong case noted that the claimants did not present any argument that the regular use exclusion was unenforceable on policy grounds. Regardless, the court noted that the regular use exclusion had been previously upheld by the Pennsylvania Supreme Court’s holding in the case of Williams v. Geico, 32 A.3d 1195, 1209 (Pa. 2011), in which it was held that the regular use exclusion was not void as against public policy. Notably, the court in this case also stated that the Pennsylvania Supreme Court’s separate decision with respect to the household exclusion in the case of Gallagher v. Geico “does not affect Williams’s precedent, as the facts of Gallagher are wholly distinguishable to the facts in the instant matter, as conceded by the defendants.” 


In addition to writing the Fong decision, Kenney also wrote the decision in the case of Shepherd v. Talotta, 535 F. Supp. 3d 341 (E.D. Pa. April 22, 2021 Kenney, J.), in which the court upheld a regular use exclusion and, in the process, again rejected the plaintiff’s arguments under Gallagher v. Geico, as well as any public policy arguments.


It is also noted that, in the state court system, prior to the Superior Court’s decision in Rush, other trial courts are still ruling that the regular use exclusion was still valid. In the case of Conti v. Castillo-Rodriquez, No. S-269-19 (C.P. Schuylkill Co. Sept. 25, 2020 Russell, J.), the court granted summary judgment in favor of Erie Insurance based upon an application of the regular use exclusion. 


During these motions for summary judgment proceedings, the carrier asserted that the regular use exclusion remained enforceable. The plaintiff argued that the provisions of Pennsylvania Motor Vehicle Financial Responsibility Law, in conjunction with the Pennsylvania Supreme Court’s decision in the case of Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), in which the Supreme Court ruled that the household exclusion was invalid as a de facto waiver of stacked UM/UIM coverages, rendered the regular use exclusion invalid as well. 


Relying, in part, on the case of Williams v. Geico, 32 A.3d 1195 (Pa. 2011), the court in this Conti case held that the regular use exclusion remained valid and enforceable under Pennsylvania law. 


The court in Conti also noted that the majority in the Gallagher v. Geico case indicated that its decision was “narrow.” The judge in Conti also pointed out that the Pennsylvania Supreme Court in Gallagher “offered no opinion or comment on the enforceability of any other exclusion to UM or UIM coverage or to coverage in general,” citing Gallagher v. Geico at p. 138, n. 8. 


As such, the court in this Conti case stated that, since the Pennsylvania Supreme Court had not abrogated the reasoning set forth in the Williams case, the decision and law of the Williams case was found to be controlling in that case matter. Given that there were no issues of fact to preclude the entry of summary judgment, the court in Conti applied the regular use exclusion and entered summary judgment in favor of the carrier and against the plaintiff. 

Up the Ladder We Go


As noted, those in the motor vehicle accident law industry are awaiting a decision from the Pennsylvania Supreme Court as to whether that court will accept the appeal in the Rush decision and take on the task of deciding whether the regular use exclusion is valid and enforceable. Should the Pennsylvania Supreme Court decide to take the appeal, it will remain to be seen whether that court will choose to uphold decades of past precedent, including from the Pennsylvania Supreme Court itself, repeatedly upholding the validity of the regular use exclusion or whether the court will instead continue its more recent trend of overturning such established precedent in a manner that favors plaintiffs in personal injury litigations. 


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.